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Intellectual Property, Agricultural Biotechnology and the Right to Adequate Food: A Critical African Perspective

Document Cited authorities 4 Cited in Related
Pages503-525
DOI10.3366/ajicl.2015.0133
Date01 October 2015
Published date01 October 2015
Author

Recent political strife in parts of the Arab Middle East and North Africa are linked, among other things, to food insecurity.1

See David Rosenberg, Food and the Arab Spring (27 October 2011), available at http://www.gloria-center.org/2011/10/food-and-the-arab-spring/

Historically, food insecurity in these regions has been linked to political instability.2

See Ashley Dawson, The Return of the Bread Riot (20 December 2007), available at http://www.unz.org/Pub/CounterpunchWeb-2007dec-00163

 The success of responsive policy advancements, especially those at the intersections of legal, socio-cultural and technological interventions, in the area of food and agriculture, depends on their ability to transform the food insecurity profile of vulnerable regions and segments of the world's population. Such an outcome contributes significantly to national and international political stability. Issues of equity and access, as complements of sound legal regulatory and policy responses are critical in harnessing the technological transformations in the areas of agriculture and food production. Even though the harmful consequences of food insecurity are felt at a national level, they are, in part, the effects of decisions made at global levels.3

For example, the Egyptian bread riot of 1977 was a mass protest against the World Bank and IMFs policy that resulted in the cessation of state subsidies on vital food stuff. See Palash Ghosh, ‘Current Protests in Egypt Recall the Bread Riots of 1977’, available at http://www.ibtimes.com/current-protests-egypt-recall-bread-riots-1977-260443

 Clearly, national policies are crucial for sustainable agriculture. However, with unprecedented trade liberalisation, extreme globalisation, and severe distortions in global food systems, global strategies have become increasingly important.4

See John D. Shaw, The Global and Agriculture Institutions, Routledge (2009).

Less developed countries, especially those in Africa, are buffeted by a complex combination of factors in their bid to cash the promises and fulfil their obligations pursuant to the International Covenant on Economic Social and Cultural Rights (ICESCR)5

993 UNTS 3 / [1976] ATS 5 / 6 ILM 360 (1967).

as they relate to the realisation of the right to adequate food. As demonstrated below, that right implies freedom from hunger, poverty eradication, food security and food sovereignty. A number of those factors buffeting less developed countries range from increasing extreme weather conditions via climate change dynamics, to dysfunctional governments and political corruption, to infrastructural deficit and distributional gaps in food supply. Other factors of concern to this paper include: the progressive expansion of intellectual property (IP) and free trade; transformations in agricultural innovations and production such as genetic modification; large-scale industrial agriculture, mining, and extractive industrial exploitations; monoculturism; and, lately, the phenomenon of land grab

The interrelatedness of the above cited factors is hardly in dispute. However, attempts to understand the extent to which each of the factors promotes or undermines the right to adequate food are often lost because embedded interests tend to play to the gallery by representing a host of these factors as solutions for extreme hunger and food insecurity endemic in specific national or regional contexts.6

See, generally, Kynda R. Curtis, Jill J. McCluskey and Thomas I. Wahl, ‘Consumer Acceptance of Genetically Modified Food Products in the Developed World’ 7 (1&2) AgBioforum (2004) 70–5.

Yet the role and impact of the above enumerated factors on the eradication of hunger and on the overall socio-economic health of developing countries remains controversial

This article revisits the framework for the introduction of IP in the agricultural arena with emphasis on recent transformations in agricultural innovations.7

See Geoff Tansey and Tasmin Rajotte (eds), The Future Control of Food, Earthscan (2008).

The aim is to map those developments onto the work of the UN Committee on Economic Social and Cultural Rights (CESCR) in its elaboration of the right to adequate food. Part of this article's goal is to identify how IP and features of agricultural biotechnology affect the realisation of the right to adequate food, especially in Africa. In addition to IP and agricultural biotechnology, this article identifies recent trends in global food production within the narrative on the intersection of IP and agricultural biotechnology and their ramifications for the right to adequate food. It reflects on the importance of re-engaging, informal, traditional farming in the context of available opportunities for agricultural innovation.8

See, generally, Calestous Juma, The New Harvest: Agricultural Innovation in Africa, Oxford University Press (2011).

 Traditional farming practices are indispensable if developing countries, especially in Africa, are to realise the right to adequate food

Aside from specific national contexts, the extension of IP in agricultural innovations can be traced to multiple international instruments and processes. At the multilateral level, the main historical and instrumental driver of IP in agriculture is the International Union for the Protection of New Varieties of Plants (UPOV).9

The UPOV is an intergovernmental Union with Headquarters in Geneva, Switzerland. For texts of the various Acts of the UPOV Convention, see http://www.upov.int/upovlex/en/acts.html

Subsequently, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)10

See 33 I.L.M 1197 (1994).

 provides a complementary platform for the expansion of IP into agricultural innovation

Other sites for negotiating intellectual or related proprietary regimes in agriculture include the International Treaty on Plant Genetic Resources for Food and Agriculture11

See FAO, http://www.planttreaty.org/content/texts-treaty-official-versions

by the Food and Agriculture Organization of the United Nations, the Consultative Group on International Agriculture Research,12

The CGIAR manages the global seed banks in its federating international agricultural research centres with the objective of mediating the interest of its private sector sponsors and the rest of the developing country donors to the seed banks toward a fair public access to results of innovations arising from the adaptation of the genetic resources that are held in trust. More information on CGIAR is available at http://www.cgiar.org/

 and the 1992 Convention on Biological Diversity (CBD). Also, the World Intellectual Property Organization, the United Nations Education, Scientific and Cultural Organization's work programmes on cultural diversity, and the United Nations Declaration on the Rights of Indigenous Peoples highlight diverse aspects of traditional knowledge (TK) innovations and practices that are integral to agricultural innovation within the IP matrix.13

Anthony Taubman notes that the UNDRIP is a progressive and bold attempt that articulates the entitlements of indigenous peoples concerning intellectual property in a manner that recognises that TK is now ‘part of concrete interests that some countries bring to the table when they debate and negotiate on a fair and equitable IP system’. Anthony Taubman, Indigenous Innovations: New Dialogues, New Pathways, Preface in Peter Drahos and Suzy Frankel (eds), Indigenous Peoples Innovation: Intellectual Property Pathways to Development, ANU E Press (2012) xv–xxiv at xx–xxi.

The aforementioned instruments and organisations are varied in nature: their mandates and work programs encompass food, agriculture, biodiversity, TK, genetic resources, folklore or traditional cultural expressions, and culture. All of these elements are linked with the processes of agricultural innovation and production in both formal and informal settings. They implicate the complexity of stakeholders involved in agricultural production and underscore the multifaceted and holistic nature of agriculture.

Only the UPOV and the TRIPS are dedicated to direct promotion of IP in agriculture. For the most part, the involvement of the other instruments is peripheral, but they serve as counterpoint to unbridled application of IP in agriculture Therefore, the UPOV and the TRIPS agreement are the best suited frameworks for the present task.

Graham Dutfied traces the origins of IP in agriculture to the 19th century Westward Expansion of the United States of America (US).14

See Graham Dutfied, ‘Turning Plant Varieties into Intellectual Property: The UPOV Convention, in Tansey and Rajotte’ (eds), supra note 7, at 27–47.

Part of the US government's programme to encourage settlement was to provide seeds to farmers via the Patent Office and the Department of Agriculture. The practice was further complemented by famers' appropriation of seeds introduced by immigrants, which were then adapted to the local ecological conditions.15

Ibid., at 29–30.

 One of the highpoints of agricultural advancement in the US was the rapid evolution of both breeding and commercial-cum-industrial farming that displaced subsistence farming. The US, perhaps more than any other country in history, was the pioneer of industrial seed production.16

Ibid., at 30; see also Craig Borowiak, ‘Farmers' Rights: Intellectual Property and Struggle Over Seeds’ 23(4) Politics and Society (2004) 511–43, at 515.

By 1890, the American Seed Trade Association was already a trade interest lobby under whose shadow commercial hybridisation via Mendelian genetics was devised as a strategy to circumvent farmers' customary use of farm-saved seeds.17

See, generally, G. Dutfied, supra note 14; C. Borowiak, supra note 16; and Jack R. Kloppenburg Jr, First the Seed: The Political Economy of Plant Biotechnology, University of...

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