Opinion: what happens when intellectual property rights have a direct effect on the right to food?
The right to food can broadly be placed within Article 25 of the Universal Declaration of Human Rights as part of the right to an adequate standard of living. However, it was not until the International Covenant on Economic, Social and Cultural Rights (ICESCR) that the right to food was expressly addressed. Here, Article 11(1) requires that states recognise "the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions".
While states have an obligation to respect, protect and fulfil this right, this obligation must be proportional to the duties and abilities to respect, protect and fulfil other human rights. Often, this may result in policy planning and resource allocation to achieve this dual obligation.
In recent years, the global community has seen increased calls (and significant pressure) to recognise and protect intellectual property as a human right. In doing so, the state would be required to protect the right to intellectual property as well as the right to food. Within this overlap, problems with the right to food and the protection of intellectual property start to develop, emerge and, over the last number of years, exponentially increase.
Unlike other human rights, the right to food is concerned with the practical aspects relating to access and sustainability. At the same time, the protection of IP rights deals with the large-scale facilitation, production, and research of plant genetic resources, which creates and drives the associated industries. In doing so, this has a direct effect on the access and sustainability aspects of the right to food.
The seed wars
This conflict is often referred to as the "seed wars", where parties argue over the IP protection afforded to the development of commercial agricultural seeds and the subsequent restrictions and requirements for their use. These seed wars are not a recent development and have existed in various forums and battlegrounds over the decades.
This development can be divided into three broad categories. Firstly, the seeds as they exist in their raw, unprocessed, or natural state. This would primarily relate more to physical control as a means of enforcing IP. The second relates to the seeds held and worked as research material at the research institutions or global seeds banks. The third then relates to seeds which have been 'worked' or ‘developed’ through human innovation.
Intellectual property frustrates the right of people to have sufficient food corresponding to their cultural traditions
From an IP perspective, the third stage relates to the development of protection measures concerning plant genetic resources industries. This is primarily intended to prevent free-riding by competitors of the developers of plant genetic resources and allows the developer to recoup the research and development costs of developing new seed types.
This protection of plant genetic resources has been questioned from a human rights perspective for a variety of reasons. For example, it has been viewed as overemphasising the protection for the commercial aspect at the potential expense of the protection of biodiversity or bio-health of seeds. In that regard, IP frustrates the right of people to have sufficient food corresponding to their cultural traditions. It has also been argued that the use of these protective measures is disproportionally used by developed nations, aggravating the breach of human rights in developed nations.
It was not until recent years that the UN took a more active role in the growing tensions between IP and the right to food. This was particularly evident from the 2006 General Comment No. 17 by the CESCR Committee in which they considered the use of IP as a limitation on the rights of food. However, it must be noted that this limitation would be applied to IP from a human rights perspective rather than a purely commercial perspective. Furthermore, this limitation would only be applicable regarding the royalties paid for seeds and plant material and not the food product itself.
This emphasis on the relationship between the right to food and IP for plant-based innovation was again put forward in 2008 by the Special Rapporteur on the Right to Food. The Special Rapporteur highlights how the framework encompassing the right to food, incorporates the concept of sustainability, as well as ensuring the accessibility of food for future generations.
Overall, obligations to protect the right to food and the protection of IP are two (of many) competing and conflicting goals within global trade. As the importance and focus of trade shifts to address new economic and social challenges, this tension is likely to increase further, as IP related industries seek more restrictive protections afforded to plant genetic resources. However, as previously seen, the attempts to expand this protection have been met with a more cautious approach than that found in other areas of IP due to the nature of the right to food.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ