Property, Power and Human Rights: Lived Universalism In and Through the Margins, by Laura Dehaibi (Elgar 2024)

The rendezvous between intellectual property rights and human rights has awakened slumbering legal spirits. Miscellaneous legal phenomena are now nestled in the intersection between intellectual property rights and human rights. However, the interplay between human rights and intellectual property rights is bizarrely characterized by amity and hostility. Naturally, therefore, situating indigenous intellectual property at the intersection of intellectual property and human rights becomes a daunting task. However, the dilemma is often overstated especially from the point of view of conventional intellectual property rights. At the outset of this Article, I shall be exploring the history and the development of the relationship between human rights and intellectual property rights. In the followng section, I shall be examining the extent to which intellectual property rights are entrenched in the international human rights instruments. The last section shall be devoted to exploring the phenomenon of locating indigenous peoples' rights at the interface between intellectual property rights and human rights and reflecting on the ensuing issues—an aspect which has seldom been considered in the existing literature.

Post-War conceptions of human rights have evolved independently of long-established theory and practice of property and creditor rights, to the detriment of the development and implementation of human rights law. This chapter attempts to build a first bridge between these two fields of law. It begins by recalling the strikingly different origin and implementation of ‘human’ versus property and creditor rights, because the differences have significant implications. Human rights laws are more honoured in the breach than in the observance in most parts of the world, principally because states accepted international standards governing the treatment of their own nationals in their own territory while reserving to themselves the sovereign right to enforce those rights as they saw fit. In sharp contrast, when it comes to property and creditor rights, there are few gaps between principled intentions, legal mandates, and actual enforcement. Property and creditor rights are important for the attainment of other human rights, especially those of an economic nature, and many human rights are connected to, and are rather inseparable from, broadly conceived property rights. There follows a discussion of the still wide gap between aspirational human rights and economic reality. The time has come for human rights scholars to ratchet down their expectations to match the very limited capacity of low-income and formerly communist countries most prone to human rights deficiencies to import the Western European welfare state model. The final section focuses on the poorly understood interconnections between sovereign debts and human rights. Neglect of property and creditor-rights considerations has led many contemporary human rights advocates down an infertile, if not inappropriate, intellectual and policy path. Speculation that contracts governing cross-border debts and investments may not be sufficiently compelling, at least relative to human rights commitments, is unwarranted and counterproductive.

The intersection of intellectual property and human rights is a relatively new site in the search for balance in intellectual property law and policy. Although this intersection opens up intellectual property to a unique kind of interdisciplinary analysis, only the human rights system appears to have seized the opportunity, while its intellectual property rights counterpart remains reluctant to engage. There are, so far, different competing first impressions over the nature of the intersection between intellectual property and human rights. Despite empirical credence of the conflict narrative, the co-existence of complementary thesis of the intellectual property and human rights interface has greater prospects for a meaningful and balanced rapprochement between the two. This chapter argues for critical scrutiny of the human rights appeal of intellectual property rights in order to avoid its potential for being hijacked by stronger stakeholders at the expense of their weaker opponents for whom intellectual property rights have strong paradoxical ramifications.

The article investigates the issue of the need for proper legislative regulation of property rights. It highlights certain important aspects in this area to enable the state to implement effective mechanisms for the protection of property rights, as well as to ensure the rights and legitimate interests of owners. Relevant provisions of the Constitution of Ukraine, the Civil Code, and the Commercial Code, which regulate legal relations in this sphere, have been analyzed. At the same time, it is concluded that various aspects of property rights relations require constant improvement in order to effectively guarantee the rights and legitimate interests of owners. The article also presents the legal positions of the Constitutional Court of Ukraine, which are significant for understanding the content and essence of property and other real rights relations, the scope of constitutional guarantees of property rights, and more. In particular, the Constitutional Court of Ukraine proceeds from the premise that the primary duty of the state in the sphere of property relations is to ensure the protection of the rights of all subjects of property rights. One of the mechanisms for ensuring such protection is legislative regulation. The state, fulfilling its primary duty to affirm and secure human rights and freedoms and supporting the effectiveness of the principle of the rule of law, must not only refrain from applying excessive means of interference with property rights and other bona fide possessions but also take appropriate measures to ensure that everyone under its jurisdiction can freely and at their discretion exercise such rights. As a general rule, property rights are exercised freely. However, under certain conditions, the activities of an owner may be restricted or terminated, or the owner may be obliged to allow others to use the property, but only in cases and procedures established by law. At the same time, according to the Constitution of Ukraine, the legal positions of the Constitutional Court, the Convention for the Protection of Human Rights and Fundamental Freedoms, and the case law of the European Court of Human Rights, property rights are not absolute and may be subject to certain restrictions. For instance, Article 64 of the Constitution of Ukraine allows for specific restrictions on fundamental rights and freedoms exclusively in cases regulated by the Constitution, particularly during a state of war or emergency, with the specification of the duration of such restrictions. However, any interference with property rights must undoubtedly be based on law, pursue a legitimate aim, and be proportionate.

Human rights and fair access to COVID-19 vaccines: the International AIDS Society–Lancet Commission on Health and Human Rights

Introduction Despite a profound attachment to their lands and territories, nomadic peoples throughout the world and history have seen their land encroached on and reduced. International law has played a significant role in the non-recognition of the rights of nomadic peoples. For a long time international law has been based on territorial rules that were supporting the view that to be occupied a land needed to be used in a settled fashion, with the dominant view that lands occupied and used by nomadic communities were empty and therefore open to colonisation under the imperialist fiction of terra nullius (Gilbert 2007). The development of human rights law within the international legal framework has arguably changed this approach by focusing on the fundamental rights of the individuals rather than on state power to control its territory. Nonetheless, international human rights law does not refer to the specific situation of nomadic peoples, and no treaties include any specific rights for nomadic peoples. Instead, the focus is on universal human rights applicable to all. Under this universal framework of protection, nomadic peoples could find some protection for their specific nomadic lifestyle, notably under the banner of cultural rights. Cultural rights are an important part of human rights law, and they include the right to practise and maintain a specific way of life. Hence, while human rights law does not specifically mention a right to a nomadic lifestyle, the general and universal protection offered to all cultures should, in theory, protect a nomadic lifestyle. With this in mind, this short article is aimed at highlighting how international human rights, despite been drafted and negotiated in New York or Geneva, could be of relevance at the local level for nomadic communities when it comes to their rights to land. The article is a review of some of the main points that were developed in a workshop, during the Dana +10 meeting, on the relevance of human rights law when it comes to land rights for mobile indigenous communities. The first section examines the content of land rights under international human rights law. The second section focuses on the process rights. The third section focuses on practical ways to use international law at the local level. Land Rights as Human Rights Despite the lack of inclusion of land rights within the international treaties, land rights have nonetheless been examined by both international human rights monitoring bodies and international and national courts. Indirect protection for land rights has been included under the umbrella of other protected rights such as property rights or the right to food, for example. Probably the most relevant human right in the context of land rights is the right to property. However, the right to property has generated a lot of controversy since its inscription in the Universal Declaration on Human Rights in 1948, to the extent that the fight to property was not included in the two main human rights treaties of the 1960s, the two international covenants which form the main basis of international human rights law. The controversy was notably on whether property rights should be considered on an individual basis (Western approach) or through a more collective approach (Soviet approach). The fight to property has been largely developed under the Western view that property is individual and when it comes to land rights, it is predominately about protection of individual title to the land in a very settled manner (Gilbert 2007). By and large, the human rights jurisprudence on property rights is still largely based on this individualistic and largely settled approach to property rights. Property rights are about the rights of the individual, but in many situations nomadic and semi-nomadic communities are claiming a collective right to their lands, not individual title. Therefore, customary forms of land tenure developed to serve the way mobile peoples use the land, namely common property regimes, are not effectively protected under this approach. …

Since its inception in 1994, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) has embodied the orthodox view that enforcing strong intellectual property rights (IPRs) is necessary to solve problems of trade and development. The Doha Declaration of 2001 offered short periods of special dispensation, especially to least developed countries, and proclaimed one goal to be the promotion of “access to medicines for all.” Nonetheless, it is important to recognize that the Declaration did not disturb the orthodox view of strong IPRs reflected in TRIPS. The editors of this collection reject this view and the traditional development theory that underlies it, particularly the theory’s binary model of the world as comprising developed countries and all the rest who must follow the IPR-laden path to development. The editors share the conviction that the TRIPS regime of strong IP rights is increasingly out of phase with the shifting geopolitical dynamics of multilateralism in international relations, a multilateralism in which human rights has become a progressively more influential factor in shaping trade and development policy. The editors of this collection ask, How can TRIPS mature further into an institution that supports a view of economic development which incorporates the ensemble of human rights now seen as encompassing a more comprehensive set of collective interests that includes public health, environment, and nutrition? In particular how can this 21st century congregation of human rights provide a pragmatic ethic for accomplishing a rapport with IPRs in the new landscape of development policy? Addressing such questions, the chapters in the first part of the collection shed new light on recent deployments of human rights ethics, international treaty obligations, and domestic law that have had success in reshaping IPRs, deployments made in developing countries and the BRIC group. The chapters in the second part make new proposals and recommendations for the further use of human rights and related ethics to resolve conflict over IPRs in ways that can benefit less developed countries. Before summarizing the chapters, the Introduction briefly discusses the conflict between intellectual property and human rights, a seemingly inevitable clash, especially between patent rights, given their continuing expansion in the pharmaceutical and biotechnology sectors, and human rights, which now comprise a wider array of collective interests. The conflict between patent rights and human rights is widely understood as expressing a particularly difficult form of the familiar tension between efficiency and dispersion, between encouraging innovation and promoting fair distribution. This dominant view of the conflict bears scrutiny. Why? Because the economic case for patent rights as the engine of economic growth is not well-supported. In consequence, it cannot be taken for granted that the moral virtue of wider distribution of patented goods, especially pharmacological products, exacts a high price on economic growth and development. In this light, the Introduction concludes with some useful principles for human rights activists to counter what should be recognized as the uneasy case typically made for strong protection of patent and other IPRs.

Human rights invoked in the international context are often treated as having self-evident content. The focus is on implementation and enforcement. The urge to enforcement is especially strong when...

In the history of humanity woman has been as important a factor as man, yet she was always looked down as an inferior creature. It is harsh reality that women have been ill- treated in every society for ages. The developments of a nation solely depend on the social status of women and women constitute almost one half of the globe’s population. However, women have been the victims of exploitations by male dominated society and continue to be exploited. But now it is required that women need to be empowered and men need to be oriented about their obligations towards women. Women are entitled to enjoy the same human rights and fundamental freedoms as other individuals. International human rights treaties require state parties to take proactive steps to ensure that women’s human rights are respected by law and to eliminate discrimination and practices that negatively affect women’s rights. The significance of gender equality in property is accepted not only from human rights point of view but it also important for every human development because now a day’s world move to ‘socialize’ and to achieve it the gender equality is necessary. It also includes women’s rights in access and control the property. Women’s property right is an important for her overall living conditions. The object of international human rights laws is to give a basic skeleton to each human being by the State which helps to achieve the object of it. The role of International Human right laws is to bring social reform for property rights of women and empower women which vary from country to country. Thus, women deprived her property rights due to gender inequalities in custom, religion and so on. The international human rights laws are important tools by which women empower themselves. International law as well as Domestic law used to protect rights and responsibility of citizens including women. The article examines the international Resolutions, treaties and Covenant that relate to women’s property rights. This article examines how the ‘women’s property right’ concern to other important international instruments with women’s human rights; in particular, the issue of equality in property.

Human rights and intellectual property protection are two distinct fields that have largely evolved separately. Their relationship needs to be re-examined for a number of reasons. Firstly, the impacts of intellectual property rights on the realization of human rights such as the right to health have become much more visible following the adoption of the TRIPS Agreement. Secondly, the increasing importance of intellectual property rights has led to the need for clarifying the scope of human rights provisions protecting individual contributions to knowledge in the field of medical patents. Thirdly, a number of new challenges need to be addressed concerning contributions to knowledge, which cannot effectively be protected under existing intellectual property right regimes. This article examines the different aspects of the relationship between intellectual property rights, human rights, and science and technology related provisions in human rights treaties and most importantly will be having a reference with regard to the right to health as a human right. It analyzes existing knowledge protection-related provisions in human rights treaties. It also examines some of the impacts of existing intellectual property rights regimes on the realization of human rights. Further, it analyzes the General Comment 17 on Article 15(1) (c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and proposes an alternative broader reading of this provision focusing on traditional knowledge.

The article deals with the role of the European Court of Human Rights (ECtHR) in protecting the right to social security. There is the analysis of the case law of the ECtHR on the violation of the right to social security, namely the right to receive a pension, which the ECtHR classifies as property rights. The authors have outlined the ways to improve the practice of the ECtHR in this area in modern national and world socio-economic conditions. According to available estimates, around 50 per cent of the global population has access to some form of social security, while only 20 per cent enjoy adequate social security coverage. Ensuring an ap-propriate mechanism for the protection of human and civil rights is a priority for every country. However, according to case law, the number of complaints of violations or non-recognition of their rights is growing every year. An important role in the protection of human rights in today's conditions is played by an international judicial body - the European Court of Human Rights. In Ukraine, where socio-economic rights are recognized at the constitutional level, their guarantee content in the current laws is still not clearly defined, and therefore, as evidenced by the practice of the Constitutional Court of Ukraine, legal mechanisms their protection, in particular the means of judicial control remain ineffective. The right to social security is the right to access and retention of benefits, both in cash and in kind, without discrimination in order to protect, in particular, against (a) lack of income from work caused by illness, disability, maternity, occupational injuries , unemployment, old age or death of a family member; (b) inaccessible access to medical care; (c) insufficient family support, especially for children and adult dependents. It is well known that the European Convention does not contain many socio-economic rights as such (with a few exceptions - protection of property and the right to education). Thus , the former president of the ECtHR Jean-Paul Costa specifically pointed to another important European human rights treaty – the European Social Charter. Human rights are a universal value, and their protection is the task of every state. The European Court of Human Rights plays an important role in protecting human rights in modern conditions. The functioning of such an international judicial institution can not only solve a problem of protection of violated rights, but also affect the development of the judicial system of each state. The main principle of realization and judicial protection of social rights is non-discrimination on the grounds of sex, age, race, national and social origin of the individual, and the role of auxiliary institutions of the Council of Europe in generalizing and improving the ECtHR’s activity has been emphasized.

This chapter seeks to distinguish between intellectual property rights the existing legal mechanisms for intellectual property protection – and the right to intellectual property. The right to intellectual property is a human right. Intellectual property rights, instrumental in nature and codified in legal frameworks around the world, are not. Rather, intellectual property rights as they exist are both over- and under-inclusive in their protection of the right to intellectual property. However, the right to intellectual property exists for everyone, and a human rights perspective on IP should change the framework by which we evaluate and construct the legal system, expose the flaws of a system designed to primarily protect corporate interests, and present possibilities for a more inclusive approach.The analysis begins in Part l with a discussion of the human right to the moral and material interests of creators, as that right has been embodied in an international human rights framework over time. In Part 2, I discuss intellectual property rights - their importance and relevance to the human rights detailed in Article l5(1)(c) of the International Covenant on Economic, Social, and Cultural Rights. Creations of the mind are not only fundamental to personhood and community, but they serve as a primary economic vehicle on the global stage and have the potential to facilitate the ability of creators to access an adequate standard of living in remote areas and disadvantaged communities. In Part 3, I discuss General Comment 17 of the CESCR, which gives guidance and effect to the human rights provisions found in Article 15(1)(c). I conclude that for the rights in Article 15(l)(c) to be realized, they must be perceived as a fundamental aspect of intellectual property law and policy. Protection and respect for the moral and material interests of creators, the right to intellectual property, is a human right; and as such, human rights discourse must inform intellectual property policy. This conclusion has implications both for the intellectual property law community and the human rights community: to forget that human creators are at the centre of scientific and artistic innovation works to the detriment of effective IP policy; to avoid the legal mechanism by which the rights of creators are protected works to the detriment of human rights.

Human rights' limitations in patent law

Human rights and intellectual property have on the whole evolved largely independently. Intellectual property rights framework have never emphasized the existence of links with human rights and generally stopped at noting the socio-economic dimension of intellectual property protection. On the human rights side, certain links with intellectual property rights were made early on with the introduction of intellectual property rights clauses in the international human rights treaties. Nevertheless, it is only in the context of emerging crises linked to the role of intellectual property rights in the realization of the rights to food and health in particular that links between the two fields have been explored in a much more systematic way. Our abstract considers questions related to the links and the impacts of existing intellectual property rights on the realization of human rights. It analyses in particular links between medical patents and access to drugs, a component of the human right to health. The second section moves to analyze issues related to the recognition of intellectual property rights as human rights. It considers in particular the proposed general comment of the Committee on Economic Social and Cultural Rights (ESCR Committee) and the broader implications of human perspective, for instance, for traditional knowledge holders.

The paper analyses tensions between intellectual property rights, human rights and the right to health in four respects. First, it considers whether intellectual property rights are human rights by reappraising, in particular, Article 27 of the Universal Declaration of Human Rights, Article 15(1) the International Covenant on Economic, Social and Cultural Rights, and the report of the High Commissioner on Human Rights on the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Second, it looks at the tensions between intellectual property rights and the right to health, specifically in relation to whether a rights-based approach to health can be used as a mechanism to facilitate access to medicines, re-examining Article 25 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Economic, Social and Cultural Rights. Third, it discusses the implications of the right to health for intellectual property rights with reference to the experiences of using a human rights-based discourse to assert the right to health in the context of pharmaceutical product patents, compulsory licences and access to medicines, particularly anti-retroviral drugs for people living with HIV/AIDS in Brazil and South Africa. Fourth, the paper concludes by drawing attention to two significant initiatives at the World Health Organisation (WHO) with human rights implications: the WHO the Resolution on Public Health, Innovation and Essential Health Research and Intellectual Property Rights of 27 May 2006; and the WHO Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property of 24 May 2008.