Diritto Pubblico Comparato ed Europeo

Sommario

1. Introduzione. – 2. Il Trips Agreement e il suo impatto sui Paesi in via di sviluppo. – 3. Le vicende sudafricane e i primi segnali di cambiamento: il “processo di Pretoria” e la Doha Declaration on Trips Agreement and Public Health. – 4. L’apporto dei giudici costituzionali. – 4.1. Il caso Minister of Health c. Treatment Action Campaign. – 4.2. Il caso Hoffman c. South African Airways. – 4.3. Il caso NM c. Charlene Smith. – 5. Considerazioni conclusive.

Abstract

The Author analyses the protection of HIV positive people in South Africa. She focuses, in particular, on the consequences deriving from the harmonization of domestic laws with international rules on intellectual property rights (especially the Agreement on Trade-Related Aspects of Intellectual Property Rights – Trips –). This harmonization is especially difficult because the South African legal system, on one hand, provides for the obligation to respect international rules, and on the other hand needs to cope with the emergency of healthcare. South African institutions were therefore induced to improve the level of protection of rights of disadvantages minorities as for example HIV positive people’s rights. Relevant examples of this policy are the Medicine and Related Substances Control Amendment Act (no. 90/1997) and a series of decisions delivered by the Constitutional Court of South Africa. In particular, the case law of the Constitutional Court frequently refers to fundamental principles and values enumerated in the South African Constitution of 1996. These references played a very important role in decisions that censured unjustified discriminations against HIV-positive people or that assured the increase of the number of persons to be granted access to essential medications. The case law of the Constitutional Court is also important to witness the “deep dialogue” with some foreign Courts (e.g. the Supreme Court of India).