Public Interest

There is quite some work that has been done on investment regulation and human rights protection in the context of Africa. One of such works is Fola Adele’s book, International Investment Law and Policy in Africa, Exploring a Human Rights Based Approach to Investment Regulation and Dispute Settlement (2018), where he discusses sustainable development and human rights protection. Most significantly, Adeleke acknowledges that the role and importance of public interest issues, sovereignty of states and other binding obligations that interfere with investment treaty norms have not been given adequate attention. This is why I welcome Dr. Dominic Npoanlari Dagbanja’s book “The Investment Treaty Regime and Public interest Regulation in Africa” with lots of admiration. This work does not only provide a wealth of resource for scholars seeking to research on such a thorny issue, but also serves as a fresh reminder of the important yet difficult conversation about the need for African states to recast future investment treaties in the light of their constitutional mandates and responsibilities.

The COVID-19 pandemic has exposed the weaknesses of the current patterns of production and consumption, exemplified by GVCs and the global trade and investment order in which they operate. These fragilities have resulted in the aforementioned social, economic and financial crises but what they represent most of all, is a crisis of responsibility in which powerful actors, state and private, that have been the main beneficiaries of GVCs, have failed to discharge their ethical and normative obligations to those most vulnerable within their production and supply chains. To this end, a new approach is sorely needed to address the vulnerabilities of a global economy built on fragile GVC governance that serves as new nodes of global inequality and precarity.

This post is a dissection of the contents of and processes that culminated in my very first experience of teaching international law with a view to regulate cyberspace as a domain of conflict between States.

The COVID-19 pandemic has raised salient questions about global intellectual property rights rules and their implementation at regional, sub-regional and national levels. These questions revolve around the tensions between private rights and the public interest. For example, how can governments employ flexibilities and other measures to facilitate access to pharmaceutical products including drugs, vaccines, test kits, personal protective equipment and related technologies? Or how can governments navigate the intersections of copyright and the right to education to promote access to educational materials for teaching and learning? Broader conceptual, practical, and institutional issues, foregrounded on fostering development-oriented intellectual property rights systems in the Global South, will be analysed from different perspectives.

This analysis addresses the question whether it is constitutional and prudent for African states to agree to a treaty term such as national treatment, which limits their sovereign and constitutional powers to regulate in the public interest without having to account to foreign investors. The constitutions of many African states endorse the principle that sovereignty resides in the people.

The current international, regional and national architecture of Intellectual Property law confers privileges to foreign transitional interest blocks in order to profit from patents by extending, trademarks, copyrights and so on for longer periods of time. This legal enclave diminishes the possibility of developing technologies, including diagnostics, medicines, vaccines and other medical supplies vital to treating patients infected by COVID-19 and it hampers efforts to distribute them in a timely manner to all the countries currently affected by the pandemic. However, the creative elements of a new global system are emerging now, one characterized by coordination between WIPO, WTO and WHO.

The rapid development and spread of ICT are providing great opportunity to accelerate governmental response to the Covid-19 health crisis. At the same time, this development has exposed the weak enforcement of digital rights and freedoms. The emerging technologies have turned governmental control upside down . It has given a unique opportunity to the ICT platforms not only to govern themselves but also perform governmental functions of maintaining law and order albeit in the cyberspace. It has become double-edge sword for developing countries like India.

On the 24th of March 2020, the African Export-Import Bank (Afreximbank) announced a US$3 billion facility to help its member countries weather the economic and health impacts of Covid-19. In this interview, Prof Ben Oramah, President Afreximbank, discusses this pandemic facility, the African Continental Free Trade Area, (AfCFTA) and more.

Welcome to this symposium on COVID-19 and International Economic Law in the Global South. The essays in this symposium came from Africa, Asia, Europe, the Middle East, the Caribbean, North America and Latin America. This symposium will last for a full four weeks because of the large number of good quality submissions we accepted.

States could rely on secondary rules on State responsibility to defend preventative measures relating to COVID-19, yet their successful invocation depends on satisfying several conditions set out in the ILC’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts, a discussion of which is beyond the scope of this post. Meanwhile, the applicability of the doctrine of margin of appreciation, developed by the European Court of Human Rights, to the claims arising under BITs has been accepted, justifying why investment tribunals should pay deference to governmental judgments of national requirements in the protection of public health when the “discretionary exercise of sovereign power, [is] not made irrationally and not exercised in bad faith”