Preserving patent policy space and securing access to medicines in developing countries: the role of states and pharmaceutical corporations

This thesis examines the tension between patent rights and the right to health and it recognizes patent rights on pharmaceutical products as one of the factors responsible for the problem of lack of access to affordable medicines in developing countries. The thesis contends that, in order to preserve their patent policy space and secure access to affordable medicines for their citizens, developing countries should incorporate a model of human rights into the design, implementation, interpretation, and enforcement of their national patent laws. The thesis provides a systematic analysis of court decisions from four key developing countries (Brazil, India, Kenya, and South Africa) and it assesses how the national courts in these countries resolve the tension between patent rights and the right to health. Essentially, this thesis demonstrates how a model of human rights can be incorporated into the adjudication of disputes involving patent rights in national courts. Focusing specifically on Brazil, the thesis equally demonstrates how policy makers and law makers at the national level can incorporate a model of human rights into the design or amendment of their national patent law. This thesis also contributes to the ongoing debate in the field of business and human rights with regard to the mechanisms that can be used to hold corporate actors accountable for their human rights responsibilities. This thesis recognizes that, while states bear the primary responsibility to respect, protect, and fulfil the right to health, corporate actors such as pharmaceutical companies also have a baseline responsibility to respect the right to health. This thesis therefore contends that pharmaceutical companies that own patent rights on pharmaceutical products can be held accountable for their right to health responsibilities at the national level through the incorporation of a model of civic participation into a country’s patent law system.

Breaking ranks: the emergence of representative associations in the Irish armed forces 1989-1992

This study contexualises the relationship between the armed forces and the civil authority in Ireland using and revising the theoretical framework advanced by Huntington. It tracks the evolution of the idea of a representive body for soldiers in the late 1980s, to the setting up of statutory associations under the Defence Amendment Act 1990. The study considers Irish soldiers political agitation and their use of peaceful democratic activities to achieve their aims. It highlights the fundamental policy arguments that were made against the idea of representation for the army and positions those arguments in the study of civil-military relations. Utilising unique access to secret Department of Defence files, it reveals in-depth ideological arguments advanced by the military authories in Ireland against independent representation. This thesis provides an academic study of the establishment of PDFORRA. It answers key questions regarding the change in the position of Irish government who were categorically opposed to the idea of representation in the army. It illustrates the involvement of other agencies such as the European Organisation of Military Associations (Euromil) reveals reciprocal support by the Irish associations to other emerging groups in Spain. Accessing as yet unpublished Department of Defence files, study analyses tension between the military authorities and the government. It highlights for the first time the role of enlisted personnel in the shaping of new state structures and successfully dismmisses Huntingtons theoretical contention that enlisted personnel are of no consequence in the study of civil-military relations. It fills a gap in our understanding, identified by Finer, as to how politicisation of soldiers takes place. This thesis brings a new dimension to the discipline of civil-military relations and creates new knowledge that will enhance our understanding of an area not covered previously.

The analytical approach of the European Court of Human Rights in surveillance cases—the implications, justifications, and future of the Court’s reasoning, with a focus on the legislative impact in Ireland

A notable feature of the surveillance case law of the European Court of Human Rights has been the tendency of the Court to focus on the “in accordance with the law” aspect of the Article 8 ECHR inquiry. This focus has been the subject of some criticism, but the impact of this approach on the manner in which domestic surveillance legislation has been formulated in the Party States has received little scholarly attention. This thesis addresses that gap in the literature through its consideration of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 and the Criminal Justice (Surveillance) Act, 2009. While both Acts provide several of the safeguards endorsed by the European Court of Human Rights, this thesis finds that they suffer from a number of crucial weaknesses that undermine the protection of privacy. This thesis demonstrates how the focus of the European Court of Human Rights on the “in accordance with the law” test has resulted in some positive legislative change. Notwithstanding this fact, it is maintained that the legality approach has gained prominence at the expense of a full consideration of the “necessary in a democratic society” inquiry. This has resulted in superficial legislative responses at the domestic level, including from the Irish government. Notably, through the examination of a number of more recent cases, this project discerns a significant alteration in the interpretive approach adopted by the European Court of Human Rights regarding the application of the necessity test. The implications of this development are considered and the outlook for Irish surveillance legislation is assessed.

Who pays and who plays? Mapping the discourse of publicly funded instrumental music education in Ireland

Instrumental music education is provided as an extra-curricular activity on a fee-paying basis by a small number of Education and Training Boards, formerly Vocational Education Committees (ETB/VECs) through specialist instrumental Music Services. Although all citizens’ taxes fund the public music provision, participation in instrumental music during school-going years is predominantly accessed by middle class families. A series of semistructured interviews sought to access the perceptions and beliefs of instrumental music education practitioners (N=14) in seven publicly-funded music services in Ireland. Canonical dispositions were interrogated and emergent themes were coded and analysed in a process of Grounded theory. The study draws on Foucault’s conception of discourse as a lens with which to map professional practices, and utilises Bourdieu’s analysis of the reproduction of social advantage to examine cultural assumptions, which may serve to privilege middle-class cultural choice to the exclusion of other social groups. Study findings show that within the Music Services, aesthetic and pedagogic discourses of the 19th century Conservatory system exert a hegemonic influence over policy and practice. An enduring ‘examination culture’ located within the Western art music tradition determines pedagogy, musical genre, and assessment procedures. Ideologies of musical taste and value reinforce the more tangible boundaries of fee-payment and restricted availability as barriers to access. Practitioners are aware of a status duality whereby instrumental teachers working as visiting specialists in primary schools experience a conflict between specialist and generalist educational aims. Nevertheless, study participants consistently advocated siting the point of access to instrumental music education in the primary schools as the most equitable means of access to instrumental music education. This study addresses a ‘knowledge gap’ in the sociology of music education in Ireland. It provides a framework for rethinking instrumental music education as equitable in-school musical participation. The conclusions of the study suggest starting-points for further educational research and may provide key ‘prompts’ for curriculum planning.

The Aarhus Convention and its implementation in Ireland: strengthening the role of NGOs in environmental governance

One of the most striking features of the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters is the leading role envisaged for environmental nongovernmental organisations (ENGOs) in furthering compliance with environmental law. The Convention aims to secure the special status of ENGOs in environmental governance procedures by guaranteeing procedural rights of access to information, participation in decision-making and access to review mechanisms. Although Ireland did not become a Party to the Convention until September 2012, the Aarhus procedural rights were already guaranteed under European Union (EU) law. The EU has been a Party to the Aarhus Convention since May 2005 and has adopted a number of legislative measures to implement the Convention. This thesis examines the evolving role of ENGOs in environmental governance in Ireland. It provides a doctrinal analysis of the impact of the Aarhus Convention and EU law on Irish law and governance arrangements involving ENGOs. The thesis considers the extent to which Ireland has delivered faithfully on the standards set by the Aarhus Convention to facilitate ENGOs to fulfil the role envisaged for them under the Convention.