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Kate Donald

The 2030 Agenda - which comprises the 17 Sustainable Development Goals (SDGs) and their targets - is something that economic, social and cultural rights (ESCR) advocates will have to contend with over the years to 2030. Much like the Millennium Development Goals, the SDGs are already altering and conditioning the development landscape, especially in terms of funding flows and data availability. But why should ESCR advocates pay attention to a non-binding, temporally constrained political agreement when their work is already based on a comprehensive and legally binding system of human rights obligations? What risks and opportunities are there in giving credence and weight to the SDGs in human rights work? This chapter analyzes how far the 2030 Agenda and ESCR are complementary and argues that ESCR advocates can use the SDGs as a lever for improvements in ESCR enjoyment, based on a nuanced understanding of the Agenda’s content, scope, strengths and weaknesses.

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Mario Gomez

The past 25 years has seen growth in national human rights institutions (NHRIs) and independent institutions across many parts of the world. While some NHRIs have begun to work on economic and social rights (ESR), other NHRIs have not pursued ESR with the same vigor, for several reasons. This chapter discusses the roles that NHRIs and independent institutions can play in advancing ESR. It looks at the emergence of NHRIs and considers some of the applicable international standards. It then discusses the relationship between the Covenant on ESCR and NHRIs and examines specific features of NHRIs including their institutional flexibility, their mandate and their location within the scheme of governance. The chapter analyzes some of the roles that NHRIs play in relation to ESR, including public inquiries, monitoring budgets and policy and their role in litigation, with illustrations from specific countries. The chapter argues that NHRIs should see themselves as part of a larger institutional landscape that seeks social transformation through different methods. The realization of ESR calls for a broad range of actions. NHRIs, because of their ability to engage in a variety of interventions, their constitutional or statutory mandate, and their location between state and civil society, able to engage with both, and are uniquely placed to intervene to advance ESR. Many factors will drive their transformative impact, including a vision and a plan of action that encompasses strategic engagement, principled decision-making and creative interventions.

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Lilian Chenwi

The African regional human rights system gives prominence to the socio-economic well-being of African people, which can be achieved through, among others, the recognition and enforcement of economic, social and cultural rights (ESCR). One of its unique features is its recognition of ESCR alongside civil and political rights and peoples’ rights, and with the same enforcement mechanisms. This chapter provides an overview of the normative frameworks on ESCR and the mechanisms relevant to their enforcement in the African human rights system. It begins with the evolution of ESCR at the African regional level. Thereafter, the chapter provides an overview of the specific ESCR recognized in key African regional human rights treaties and the correlating general state obligations, as well as the key regional mechanisms relevant to their enforcement. Despite the commendable normative frameworks on ESCR and the existence of mechanisms to ensure their effective enjoyment, poverty, underdevelopment, ongoing conflicts and inadequate implementation, among other challenges, limit the ability of people to enjoy the protected ESCR. Hence, the chapter also identifies some of the challenges that need to be addressed to ensure attainment of the great promise that the African human rights system holds for the realisation of justiciable ESCR.

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Kshitij Kumar Singh

The biotechnology sector in India has been shaped by legislative and policy initiatives with significant institutional developments. India has long valued the potential of biotechnology to make significant contribution in the health sector, agriculture sector, environmental sustainability and economic progress. The legislative initiatives to promote and regulate biotechnology include legislation regarding IP, the environment, agriculture and related regulations. The regulatory framework involves a number of regulatory bodies operating through a complex web of legislation. Government policies have been pushing the biotechnology sector, with remarkable initiatives including tax deductions, fund raising and special schemes for start-ups, MSMEs and academic and research institutions. These initiatives have shaped biotechnology as an organised sector with well-defined sub-sectors such as biopharmaceuticals, bio-agriculture, bio-services, bio-industry and bioinformatics. Biopharmaceuticals has remained the most dominant sub-sector of biotechnology, catering for the medicinal and health needs of the people and contending with the great challenges of accessibility and affordability. Though the results produced by almost all the sub-sectors have been well received by the public, in the bio-agriculture sector however public perception largely governs the decisions as to the regulatory approval of GM food crops, and many a time it has been backed by a non-scientific opposition involving numerous farmer organisations, NGOs and other activists.

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Siri Gloppen and Catalina Vallejo

The climate crisis poses severe threats to economic, social and cultural rights (ESCR). Mitigation failure (inability to contain emissions) threatens ecosystems and constitutes a risk or violation of the ESCR of current and future humans. Adaptation failure (lack of action to protect those already at risk) is a breach of their economic, social and cultural rights (ESCR). But climate mitigation and adaptation measures may themselves also threaten ESCR: closing of high-emission industries may cause job and livelihood loss; new, green energy sources (hydroelectric dams, windmills, soybean farms) and deforestation-prevention programs may cause displacement and culture loss. Litigation is increasingly important as a strategy to force action to address the climate crisis. Cases are lodged before domestic and international courts and tribunals across the globe to force climate mitigation policies, compliance with existing rules and more equitable policies for climate adaptation. This chapter outlines the emergence of climate litigation and the role of ESCR within it and develops a typology of cases using ESCR claims in climate litigation, discussing the potential and challenges with each type, and the ways forward.

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Kosgei Kembol Alvin

There are ongoing efforts under the auspices of the World Intellectual Property Organization (WIPO) to craft a global framework for the protection of traditional knowledge. These efforts are being undertaken by the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore which was established by the WIPO General Assembly in 2000. This chapter critically assesses the justifications for the push for a sui generis regime. It relies on the theories of the global political economy, the Commons and the inevitability of pluralism to suggest that a soft law instrument other than a legally binding treaty will be better placed to address the concerns of the indigenous populations around the world. The example of the progress made by Kenya is used to illustrate how national governments can help realize the goal of comprehensive protection of cultural intellectual property. The chapter pursues a practical approach to the quest for a global regime.

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Radhika Balakrishnan and James Heintz

The economic policy choices a government makes affect the enjoyment of rights within its borders and, increasingly, in other countries. Yet these policies are routinely formulated and implemented without any concern for their impact on human rights. This chapter examines how a human rights framework giving due regard to economic, social and cultural rights (ESCR) can be applied to assess and evaluate economic policies. To illustrate the connections between human rights and economic policy, a number of interventions are examined: government spending, taxation, deficit spending and debt and monetary policy. Globalization increasingly impacts on both economic policy formulation and the ability of governments to meet their human rights obligations. Therefore, the chapter specifically engages with the human rights concept of extraterritorial obligations (ETOs) and explores their implications for policy.

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Colm O’Cinneide

In Europe, three regional legal mechanisms play key roles in protecting social rights. The European Social Charter (ESC) protects a range of socio-economic rights, with state compliance monitored through both a national reporting system and a ground-breaking ‘collective complaints’ procedure. The European Convention on Human Rights (ECHR) provides an indirect degree of protection for social rights. For EU member states, social rights are also protected by elements of EU law, in particular the EU Charter of Fundamental Rights. These three mechanisms have strengths and weaknesses. The ESC guarantees a comprehensive list of socio-economic rights. However, its enforcement mechanisms remain weak. The ECHR provides ‘spill-over’ protection for a small sub-set of social rights, but is primarily a civil and political rights mechanism. The social rights provisions of the EU Charter enjoy supremacy over domestic law. However, their scope is restricted, and their substance is uncertain. Social rights protection within Europe thus remains underdeveloped. However, there are also grounds for optimism. In particular, the expanding collective complaints case-law of the European Committee on Social Rights (ECSR), which monitors state compliance with the ESC, has breathed new life into this important social rights mechanism.

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Mayuree Sengupta

“Folklore is one of these three: a body of knowledge, a mode of thought, or a kind of art. These categories are not completely exclusive of each other.” When folklore juxtaposes with intellectual property, the knowledge resource that emanates is unparalleled in stature and aids in understanding the wisdom of Bengal, a land steeped in ancient history, cultural legacy, political patronage, colonial hegemony and a weary independence at the cost of being partitioned. It would be prudent to reflect that political uncertainty after close to two hundred years of colonial subjugation led to a lull in appraisal of local lore and the assemblage of credible intellectual property in Bengal. My writing consolidates the folklore across Bengal and links it with intellectual property in all its glory. Based on this premise, the chapter undertakes an in-depth study pertaining to three case studies concerning the folklore and intellectual property of Kohitoor, Muslin and Rosogolla from Bengal, embarking on a journey from pre-British regime of the Nawabs in the seventeenth century to the current democratic dominion of twenty-first century.

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Forgotten Intellectual Property Lore

Creativity, Entrepreneurship and Intellectual Property

Edited by Shubha Ghosh

This innovative book explores forgotten disputes over intellectual property and the ways in which creative people and sovereigns have managed these disputes throughout the centuries. With a focus on reform, it raises important questions about the resilience of legal rules and challenges the methodology behind traditional legal analyses. Focusing on lore and traditions, expert contributors incorporate contextual understandings that are rooted in history, sociology, political science, and literary studies into their analyses.