General Human Rights

Global human rights are espoused in the UN’s Universal Declaration of Human Rights (UDHR).

The human right most influential in achieving food security is the right to food, which is declared in article 25 of the UDHR and Article 11 of the ICESCR. The “right to food is inseparably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfilment of such other rights as health, education, work and political participation” and an “inherent part of the rights to life, health and the right to economic, social and cultural development.”³⁴⁷ All West African countries have ratified the main international treaties relevant to the right to food.

The right to food is recognized, directly and indirectly in several legal instruments to which West African states are parties, including the African Charter on Human and Peoples’ Rights

346 Henning G. Ruse-Khan, “Sustainable Development in International Intellectual Property- New Approaches from EU Economic Partnership Agreements?”, ICTSD Issue Paper no.29, September 2010, at viii.

347 Social and Economic Rights Action Centre (SERAC) & Another v Nigeria Comm 155/96 (2001) AHRLR 60 [ACHPR 2001]. See also African Commission, “2011Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights”, 2011, online: www.achpr.org/instruments/economic-social-cultural; African Charter on Human and People’s Rights, AU, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M.

58 (1982), adopted 27 June 1981, entered into force 21 October 1986.

(1981), Article 24(2) of the Convention on the Rights of the Child³⁴⁸ and the Protocol to the African Charter on the Rights of Women in Africa (2003). Apart from Niger, the right to food is not widely included in the constitutions of West African countries as a fundamental right. However, the constitutions of many West African states mention the right to food as a guiding principle along with other rights.³⁴⁹ Thus, it may be argued that people in those states have an implicit constitutional right to food security as part of other rights.³⁵⁰

The most detailed exposition of the right to food is found in the UN’s Commission on Economic, Social and Cultural Rights’ (CESCR) General Comment on the topic. This provides that “the right to adequate food is realized when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement.”³⁵¹

In addition to the general human rights principles (non-discrimination, non-retrogression, to take steps, to monitor and to provide access to remedies) that apply, the General Comment specifies that the right to adequate food implies ensuring the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture. Fulfilling the right to food also requires the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights. The concept of adequacy is particularly significant in relation to the right to food since it serves to underline a number of factors which must be evaluated in determining whether particular foods or diets that are accessible can be considered the most appropriate under given

348 UN-OHCHR, Convention on the Rights of the Child, General Assembly Resolution 44/25, 20 November 1989.

349 FAO, Assessment on the Right to Food in the ECOWAS Region (Rome: FAO, 2014), at 41-42, 55.

350 FAO, “The Right to Food around the World: Search by level of recognition”, online: <www.fao.org/right-to-food-around-the-globe/level-of-recognition/en/> (accessed 17 May 2017).

351 UN CESCR. 1999. General Comment 12, The Right to Adequate Food, E/C.12/1999/5.

circumstances. The precise meaning of adequacy is, to a large extent, determined by prevailing social, economic, cultural, climatic, ecological and other conditions. ³⁵²

The General Comment also highlights the notion of sustainability, as intrinsically linked to the notion of adequate food or food security. It is worth noting that the General Comment specifies that availability refers to the possibilities either for feeding oneself directly from productive land or other natural resources; or for well-functioning distribution, processing and market systems that can move food from the site of production to where it is needed in accordance with demand.³⁵³

Review of human rights provisions such as Article 25 of the UDHR, and Article 11 of the ICESR, indicate that areas of IP protection, such as trade and innovation, are also the subject of human rights laws. For example, the international protection of IP coincides with societal concerns like food security (plant variety rights vs. farmer’s informal seed exchange systems). The overlap of regulations makes consideration of human rights interests especially important when interpreting IP norms.

In Africa, 48 per cent of the population rely on agriculture for food production and economic empowerment. Over the last 30 years, the agricultural sector has continued to absorb a large proportion of the working population, a feature unique to African agriculture in comparison to the rest of the world. Most of Africa’s hungry live in rural areas. Therefore, preserving and boosting agricultural livelihoods, particularly for small-scale farmers, pastoralists, and fishermen, alongside rural development is essential to assuring the right to food. Promoting and supporting agriculture over the long-term is also essential for achieving food security. Small-scale farmers contribute to this increase in food production, which in turn can improve livelihoods. Sustainable agricultural

352 UN Economic Commission for Africa (2017-07) Report, “The Continental Free Trade Agreement in Africa- A Human Rights Perspective” July 2017, Addis Ababa, at 55 [ UNECA-CFTA Report]. Online: <http://www.fes-globalization.org/geneva/documents/2017/2017_07_CFTA_HRIA_Publication.pdf> (accessed 18 March 2018).

353 Ibid, at 56.

livelihoods are and will be central to guaranteeing the right to food as well as other human rights in Africa. ³⁵⁴

The need for balancing of interests is acknowledged in General Comment No. 12 of the Committee on Economic, Social and Cultural Rights (CESCR),³⁵⁵ which analyzes the right to food clause in Article 11 of the ICESCR. In paragraph 4 the Committee affirms that the right to food is

“indispensable for the fulfilment of other human rights…(and) also inseparable from social justice, requiring the adoption of appropriate economic, environmental and social policies”. This places an obligation on states to adequately cater for the social, environmental, as well as economic conditions relating to the right to food, when entering into IP agreements with other states or with international organizations.³⁵⁶

The principle of the interrelatedness and mutual supportiveness of other rights³⁵⁷ requires IP agreements to be interpreted to support human rights, including the right to food (Article 25 UDHR), and sustainable development. Successful integration of these rights may not require greater harmonization, for the value of harmonized conditions varies between states, requiring differential lines to be drawn.

Because engagement between the Human Rights (HRs) and IP regimes is inevitable, the logical question that arises is what normative framework ought to guide that engagement? The United Nations affirms the primacy of fundamental human rights obligations over private economic rights protected in IP related agreements like TRIPS.³⁵⁸ Under the latter approach, HRs can be seen as providing a ‘ceiling’ to IPRs, specifying interests which IPRs should not interfere

354 UNECA-CFTA Report, supra note 357, at 82.

355 UN CESCR, General Comment 12, The Right to Adequate Food, E/C.12/1999/5 (1999) [General Comment 12].

356 General Comment 12, par 19.

357 See VCLT Article 31(3)(c); and the 1993 Vienna Declaration and Programme of Action, which states that “all human rights are universal, indivisible, and interdependent and interrelated.”

358 UN Sub-Commission on the Promotion and Protection of Human Rights, Intellectual Property Rights and Human Rights, Res. 2000/7, UNESCOR, 2000, UN Doc. E/CN.4/Sub.2/RES/S007/7, preamble, para. 3.

with. However, if taken to an extreme, this approach could greatly reduce the incentives for producing technology important for public interests, such as improving strains of cassava and yams that are more widely consumed in West Africa.³⁵⁹ Commenting on the European HRs convention, Steven Greer boldly argues that, “The principle of proportionality limits interference with Convention rights to that which is least intrusive in pursuit of a legitimate objective.”³⁶⁰

Moreover, review of jurisprudence of international IP courts, such as the decisions of WTO Panels and the Appellate Body, indicates that they have not embraced the idea of limiting IPRs based on public interest considerations. For example, in the European Communities-Geographical Indications;³⁶¹ US-Havanna Club;³⁶² and Canada-Patent Protection³⁶³ decisions, the Panels and Appellate Body, while acknowledging the existence of public interest objectives, under TRIPS preamble and Articles 7 & 8, did not go further to apply the provisions. Rather, based on strict textual interpretation of TRIPS provisions, other obligations under TRIPS Articles 27:1, 28.1, and 30 were viewed as limiting the public interest exceptions.

This study proposes an instrumentalist and sui generis approach to integrating human rights and IPRs. The principal claim of the instrumentalist approach is that the rights created through the enactment of intellectual property laws are functional rights, created to serve certain objectives and fundamental human rights.³⁶⁴ The WTO Panel has legitimized this normative approach in the interpretation of article 30 of the TRIPS Agreement, which also provides a three-step test in patent

359 Laurence R. Helfer, “Mapping the Interference between Human Rights and Intellectual Property” in Christophe Geiger, ed, Research Handbook on Human Rights and Intellectual Property (Cheltenham: Edward Elgar Publishing, 2015) 6-15, at 12.

360 Steven Greer, “Constitutionalizing Adjudication under the European Convention on Human Rights” (2003) Oxford Journal of Legal Studies, 405 at 409.

361 European Communities-Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (2005) WT/DS174/R, para 7.246.

362 United States-Section 211 Omnibus Appropriations Act of 1998 (2001) WT/DS176/R (Panel Report) and (2002) WT/DS176/AB/2 at para.8.57(Appellate Body Report).

363 Canada-Patent Protection of Pharmaceutical Products (2000) WT/DS114/R, paras 7.24-7.26 (Panel Report).

364 Peter Drahos, Intellectual Property and Human Rights (1999) 3 Intellectual Property Quarterly, at 349-371.

law. According to this report, exploitation must be considered normal when it is “essential to the achievement of the goals of patent policy.”³⁶⁵

The text of IP regulations is normally approached from the perspective of the individual right of the IP holder. Under an instrumentalist approach, using teleological interpretation IP laws are assessed for their effectiveness in achieving the overarching public policy goals stated in Articles 7 & 8 TRIPS. Moreover, states are permitted to grant compulsory licenses, where necessary to protect public health considerations. These provisions point to the fact that IPRs are not absolute human rights, or an absolute form of property, but are rights which a country can adjust and place exceptions and limitations on for the greater public good.