The Right to Food, Farmers’ Rights and Intellectual Property Rights: Can Competing Law Be Reconciled?

Abstract

This chapter analyzes the relationships between three fields of law: intellectual property rights, the right to food and farmers’ rights. It reviews the development of the right to food under international law, from its recognition in the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), to the more recent development of tools to advise states on how to best promote the realization of the right to food, including when states are negotiating trade and investment agreements with chapters on intellectual property protection. It then explores the emerging issue of farmers’ rights, with particular reference to the detailed requirements to realize farmers’ rights in the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). While acknowledging that the World Trade Organization’s 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) sets high standards of intellectual property protection, which can sometimes be in conflict with rights held under the ICESCR and ITPGRFA, the chapter nevertheless argues that there are several provisions of the TRIPS Agreement that states could make use of in order to expand their policy space, and thereby better ensure the rights of food producers. It illustrates examples of states using this policy space, such as the Indian Protection of Plant Varieties and Farmers’ Rights Act of 2001. Ultimately, this chapter argues that tensions between TRIPS, on the one hand, and the ICESCR and the ITPGRFA, on the other, can only be reduced by a more coherent implementation of the relevant treaties.