Caroline Bongiwe Ncube

The water-energy-food (WEF) nexus approach offers an effective framework for promoting sustainability, while enabling communities to adapt to climate change risks in the WEF sector in Africa. It requires a coordinated, collaborative, an integrated and unsiloed approach to climate change adaptation innovation and related intellect property (IP) to maximise synergies and minimise trade-offs across the WEF sectors. To this end, climate adaptation innovation solutions must integrate the components of the WEF nexus as inputs to each other to enhance resource efficiency, expand the available natural resource base and produce more contribution to the sustainability and security of the WEF sectors. Contributing to the nascent literature on climate adaptation innovation and intellectual property in Africa, this paper adopts the WEF nexus approach to examine the climate adaptation innovation and IP governance in the Southern African Development Community (SADC), and discusses select climate adaptation innovation examples from selected SADC countries. In this regard and based on desk research, the paper resolves specific issues such as how African-led innovation influences climate adaptation action in the WEF sectors in Africa, and whether existing IP governance mechanisms can ensure the protection, diffusion, transfer of and access to African-led climate adaptation innovation within Africa. The paper contends that IP regimes that promote equitable balance between the protection of innovators and the need for knowledge diffusion, availability and accessibility through appropriate exclusive and user rights will effectively foster climate adaptation innovation in the WEF sectors of the SADC.

This article argues that the twin pillars of the right to food and sustainable development ought to inform how the Annex on the protection of new plant varieties under the Agreement establishing the African Continental Free Trade Area (AfCFTA) is drafted, in view of the impact of such protection on access to food. Such impact is multi-pronged, beginning with the quality, quantity and availability of seeds, through to crop production and regional cross-border distribution of agricultural products in the AfCFTA. In order to give effect to these twin pillars, the continental sui generis system mandated by the AfCFTA Protocol on Intellectual Property Rights must draw on access and benefit sharing rules, farmers rights and existing plant variety protection systems. The article posits that this is an opportune moment to return to the African Union Model Law for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources and various instruments of the regional economic communities and intellectual property organizations to weave the continental system in the Annex on Plant Variety Protection to be negotiated under the Protocol.

The conceptualization of a proper approach to patent law, as it relates to drug patents and access to medicines, remains contested. This article joins the discourse by positing that an application of the communitarian approach of ubuntu to the might of human rights is a useful framing for normalizing equity-based interventions and would help tilt the balance of power from a narrow profit-seeking imperative to one that prioritizes the public good. It contends that, while private entity ubuntu, corporate social responsibility or charity yield some positive results, they are inadequate and must be buttressed by the right to health, which entails access to the necessary diagnostics, therapeutics and medicine for all. The article argues against the predominant hegemony of current thought, which has so far not yielded meaningful and timely access, and advocates for a rethink of the possibilities of more just outcomes through more just processes.

Twenty years since Professor Cornish asked whether IP is ‘omnipresent, distracting, irrelevant?’, this article revisits that question following recent times of instability, which have compounded the polycrisis the world is facing, whilst the 2030 deadline to achieve the UN Sustainable Development Goals looms closer and closer. This contribution argues that IP plays a critical role as one of multiple regulatory systems seeking solutions in the highly dynamic and insecure contexts of the climate emergency, uneven global development and pandemics, requiring timely and comprehensive normative development. However, over the last two decades there has been a glacial pace towards setting appropriate IP norms and states, policymakers and legislatures have to move beyond merely settling for a ‘more of the same’ approach. The ongoing World Health Organization’s Pandemic Accord negotiations present an opportunity to confirm IP’s relevance to combatting the polycrisis by setting effective norms and a technology transfer mechanism. It is concluded that missing this opportunity would render debates about IP no more than a deadly distraction.

The coda draws out several reoccurring themes at the heart of the relationship between IPRs and SDGs. These include: (1) the relationship between human rights and sustainable human development; (2) the role of international institutions and instruments; (3) the centrality of the nation state in reconciling competing obligations under trade-related intellectual property rights and human rights law; (4) the politics of private power and public law animating the inequalities between systems of exclusion with intellectual property rights exclusions and counter-movements and claims for inclusion through human rights instruments and pursuant to the global commitment made to the SDGs; and (5) the significance of partnerships and sustainable finance.

This chapter explores whether global partnerships have facilitated or enhanced access to science, technology and innovation. It argues that in the aftermath of global devastation occasioned by the COVID-19 pandemic, climate and other recent or contemporary crises, it is evident that the global partnership envisaged by SDG 17 has not yet been meaningfully achieved. The chapter argues that this goal is unrealized because the critical link between SDGs, human rights obligations and intellectual property commitments has largely been overlooked or underemphasized.

In a literature review, this chapter outlines the modern configuration of the United Nations Sustainable Development Goals 2015. It explains how the 2030 Agenda for Sustainable Development is a ‘plan of action for people, planet, and prosperity’. This chapter provides a selective overview of the history of intellectual property and sustainable development - detailing landmark events and moments in the field. It explores the Stockholm Declaration 1972 and its approach to technology transfer. This chapter looks at the recognition of the United Nations Declaration on the Right to Development 1986. It highlights the work of Gro Harlem Brundtland in the formulation of the Brundtland Report on Sustainable Development. This chapter charts the range of environment and climate agreements established at the Rio Earth Summit in 1992, and their implications for sustainable innovation. It explores the emergence of the Millennium Development Goals, and the work of the Commission on Intellectual Property Rights led by John Barton. This chapter considers the debate over the WIPO Development Agenda - particularly in respect of access to knowledge, access to essential medicines, and technology transfer. It explores the Rio+20 Summit, and its renewed focus on intellectual property, the environment, and sustainable development. This chapter highlights the public-private partnerships for sustainable development. It examines the influential work of Margaret Chon, Joseph Stiglitz, Jeffrey Sachs, and other key thinkers and authorities in this field. This chapter also notes the tensions between the Sustainable Development Goals, and trade and investment paradigms established by the TRIPS Agreement 1994 and TRIPS+ and TRIPS ++ Agreements.

The conclusion considers whether various forms of intellectual property help or hinder the realization of the 17 SDGs as a composite - and individually. The conclusion asks how the framing of the question of IPRs and SDGs may implicitly reinforce power relations through institutional commitment to neo-liberalism’s priority preference for capital production and commodity consumption. The conclusion examines the true capacity for transformative change under the 2030 Agenda - the building of a new house - with historical blueprints and the existing institutional scaffolding.

This chapter considers co-operation, harmonisation and unification as employed by APEC, ASEAN, BRICS, EU, MERCUSOR and OHADA to draw lessons for an appropriate approach for the AU. Bearing in mind the challenges and opportunities of each approach, it concludes that an appropriately paced approach to harmonisation would be suitable for Africa’s intended continental IP instruments and institutions.