Food Security in the International Legal System By Charleen Fei L.L.

M Candidate, 2011-2012, MIPLC

Paper submitted to Prof. Dr. Henning Grosse Ruse-Khan Within the course of IP and the Global Legal Order

May 22, 2012 Mnchen, Deutschland

I.

Food Security and the Legal System

From 2005 to May 2008, the world experienced a dramatic peak in international food prices. The prices of many types of cereals doubled in just these few years, or as in the case of ricemore than doubling in the span of a few months.1 Many explanations were touted as being the cause of the food crisis, ranging from speculation in futures markets through the Goldman Sachs Commodities Index to rising energy prices, which increased both the supply cost for cereal production as well as demand from energy-exporting countries flush from their new revenue. 2 Although there has not been a consensus on one causal factor, the 2008 crisis at least brought the problem of ensuring food security, and relevant underlying structures, to the forefront of global media coverage. What is food security? The 1996 World Food summit defined food security as having been met when all people at all times have access to sufficient, safe, nutritious food to maintain a healthy and active life. 3 Although this definition of food insecurity can be seen as addressing as an economic problem, the appearance of food security issues in other forums have led to broader definitions and goals. For instance, the importance of ensuring food security is often articulated in the language of human rights, as in the right to food. Derived from the International Covenant on Economic, Social and Cultural Rights, the right to food broadened the idea of food security from the meeting of basic nutritional needs to also include access to food that meets dietary preferences. However, the right to food and food security though initially two distinct standards arising from different forums have become melded into a single, highly politically charged hot button issue. 4 The 63rd session of the United Nations General Assembly officially merged the goals of food security and the right to food by stating that the right to food was not simply
about being fed. It is about being guaranteed the right to feed oneself, which requires not only that food be available (that the ratio of production to the population be sufficient), but

Headey and Fan, Executive Summary ibid 3 Rome Declaration on World Food Security 4 Indeed, the importance of food security in the United Nations mission has resulted in a specific mandate on a Special Rapporteur appointed by the General Assembly. This Rapporteur would have, among other tasks, the responsibility of aiding States to fulfill their obligations as dictated by the International Cov enant on Economic, Social, and Cultural Rights. Specifically, this obligation would come in the form of distributing food supplies equitably in terms of need both domes tically and internationally, as well as pursuing trade policies which do not marginalize small farmers in the global food supply chain.
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also that it be accessible that each household either have the means to produce its own food or have sufficient purchasing power to buy the food it needs. 5

This definition presents both the numerical standard of food security in terms of availability of food as well as the more humanitarian right to self-sufficiencythe ability to produce or buy sufficient food. Although these two goals seem to be quite compatible at first glance, a more detailed look reveals vast differences in policy implications. The former places the focus on producers and producer innovation in the agricultural equationthat enough food is available means that there must be enough produced so that any sort of distribution considering need is possible. However, the second portion of the definition one that is arguably harder to achieve is the ability for households to access food supplies, either through purchase or growing their own. This entails an overall equitable situation, and legal systems which can ensure that there is equity between not only the consumer and producer but between large-scale, industrial growers and small-scale farmers. II. The Role of Intellectual Property in Food Security

Historically, efforts to meet the food needs of the global population have come from communal agricultural management.6 Farmers slowly domesticated various types of plants and fruits over the course of generations, selecting seeds for the most desirable edible qualities as well as favorable resistances to pests or harsher planting conditions. As each generation of crops grew, plant varieties were refined according to selected traits, and farmers gained new insights into maximizing yields, diminishing losses, and increasing overall efficiency in the efforts towards food security. In this gradual learning process, each new group of farmers was able to glean the intellectual profits its predecessors as well as the knowledge from agriculture-based industries in other areas of the world. This communal sharing of agricultural knowledge and biological resources promoted a cooperative agricultural management structure. However, the growing influence of property-rights based theories in how agriculture is structured has dramatically changed this type of knowledge sharing tendency. Some scholars have suggested that the impetus for this changing dynamic was the revolution of agro-biotechnology. 7 As most of the expected increase in food production is from crop intensification rather than the opening up of more arable land, much hope has been placed in the ability of biotechnology to meet food security needs and the promise in genetically modified or transgenic plants which can produce larger yields, shorter fallow times, and a higher number of crops possible per year. As innovations in biotechnology
Rapporteur, p. 5 Cullet, p. 1 7 ibid 4
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have increasingly come from the private sector as opposed to government-funded research, the trend towards food security based on transgenic plants has resulted in a new agricultural paradigm which favors the appropriation and privatization of knowledge through strong intellectual property rights and, similarly, the appropriation (or misappropriation) of genetic resources through sovereign or contractual rights. The role of intellectual property and the legal system, then, must be to balance the two goals of stimulating innovation in agricultural technology while retaining a relatively equitable distribution of resources. As we will see, these two different emphases have resulted in correspondingly different bodies of law. The first, exemplified by the International Convention for the Protection of New Varieties of Plants (UPOV), provides incentives for plant breeders to innovate on new plant varieties by codifying the relevant economic, exclusive rights. The second is found in the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), which places a greater focus on the sustainable use of genetic resources as well as the equitable distribution of the benefits derived from their use. Most importantly, the Treaty is the first legally binding, comprehensive treaty which recognizes the rights of local and indigenous farmers. III. The International Convention for the Protection of New Varieties of Plants

The International Convention for the Protection of New Varieties of Plants was first adopted in 1961, with later revisions in 1972, 1978, and 1991. With 70 signing Members, the Convention defines how the International Union for the Protection of New Varieties of Plants (UPOV) should be governed and, most importantly, grants intellectual property rights to plant breeders for new plant varieties. How does the Convention define which plant varieties can be protected? Article 5 of the Convention specifies four criteria which must be fulfilled in order for a plant variety to be protectable. The variety must be new, in that material from the plant variety must not have been sold or propagated for exploitation prior to the date of filing for protection; it must be distinct from any other variety in common knowledge at the time of filing; it must be relatively uniform in its relevant protected characteristics; and it must stable its relevant characteristics must remain stable after, depending on the plant variety, one or many cycles of propagation. If these criteria can be fulfilled, the plant breeder will gain exclusive rights to produce or reproduce his plant variety, condition it for the purpose of propagation, offer it for sale, directly sell or market it for sale, export, import, and stock his protected plant variety. However, there are limitations to the plant breeder right. For example, Article 15 provides for at least three exceptions to the exclusivity of the right, of which include exploitation of the plant variety for private, experimental, or non-commercial purposes, as well as exploitation for breeding other plant varieties. In addition, Article 17 provides Convention

Members the legal mechanism of restricting the exercise of breeder s rights in view of public interest.8 IV. International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA or International Seed Treaty)

The ITPGRFA was approved on November 3, 2001 and entered force on June 29, 2004. Since 2006, it has also created its own Governing Body under the larger umbrella of the United Nations Food and Agriculture Organization. In total, there are 127 contracting Member States to the Treaty, with the United States being a notable exception. The Treaty provides two main mechanisms which aim preserve an agricultural genetic commons. The first is a multilateral system of facilitated access to and benefit sharing of plant genetic resources in order to promote sustainable food and agricultural practices. This requires Contracting Parties to take the necessary legal or other measures to ensure access to plant genetic resources defined in Annex 1 of the Treaty. Furthermore, Contracting Members agree that the benefits arising from these genetic resources shall be shared equitably, similarly to provisions contained in treaties such as the Convention on Biological Diversity. However, there are several problems with this multilateral system. Primarily, there are conflicting provisions within Article 12 of facilitated access the Contracting States shall facilitate access to the specific genetic resources as per 12.3 (a), but this access must be consistent with relevant international agreements and laws in 12.3 (f). As a certain element of contravention for intellectual property laws is necessitated in facilitated access, there is bound to be friction between these two provisions. Further, the multilateral system only covers 35 food crops and 29 forage species out of the estimated 150 crops important to food security and 10,000 forage species valuable to farmers, particularly those in developing countries.9 If the multilateral system is to be of value for equitable use of the genetic commons, it must first address these mitigating issues. The second, more well-known mechanism in the Treaty is in Article 9. This Article recognizes the contributions of local and indigenous communities and farmers. To support this recognition, the Article provides basic recommendations on rights which each State should ensure for its farmers. These include the protection of relevant traditional knowledge, the right to equitably share in benefits from genetic resources, and the ability to participate in decision on the exploitation of genetic and food resources. However, the Article makes very clear in the first sentence of Article 9.2 that the ultimate responsibility for realizing farmer s rights lies in the national legislation of each Contracting State.
However, any such action must firs t secure authorization and provide the breeder with adequate remuneration. 9 Choudhary, p. 366
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Because the Article 9 farmers rights are not harmonized to the national level, they are unfortunatelyrelatively weak and non-binding for Contracting States. V. Intellectual Property Law and Food Security: Convergence and Collision

The UPOV provides exclusive, enforceable rights for new plant varieties, while the International Seed Treatys provision on farmer s rights is weakly suggestive of some sort of policy remedy at most. From this point, it seems fairly simple to deduce that the legal landscape concerning food security is highly biased towards plant breeders, particularly those part of the large multinational seed industry. However, it is arguable that the actual impact of the intellectual property rights regime on food security is more difficult to determine. On the one hand, there are several points which could be made for the case of intellectual property rights as conducive to food security in developing countries. The first group concerns potential benefits from agro-biotechnology. Agricultural biotechnology research views the seed as a vehicle of improvable genetic properties, in addition to other improvable aspects such as seed coatings which provide longevity in storage or resistance to humid weather conditions. Biotechnology innovations could thus equip transgenic seeds with genetic resistances against environmental stresses which could affect crop yields as well as improvements in the inherent nutritional value of the crops grown from these seeds. The vast potential of transgenic seeds can be seen in the case of Boro rice, suitable for off-season growth on typically non-arable shallow water or water logged lands, which has allowed Bangladesh to achieve stable yields towards selfsufficiency. 10 The other set of claims focuses on the effect of intellectual property on the agricultural market. Intellectual property rights on new plant varieties which allow the innovating company to exclude others from royalty-free use of its innovation give incentives for private sector investment into agricultural biotechnology. Other positive effects of strong intellectual property rights for biotechnological developments on seeds have been a possible increase of attractiveness for countries looking for markets in foreign direct investment and an increase in likelihood of technology transfers from foreign companies.11 However, there are many critics of plant breeder rights or other forms of intellectual property rights relating to agricultural technology. The arguments can be delineated into two distinct fields the effect of IPRs on agricultural innovation, and the effect of IPRs on

Papademetriou et al, p. 15 Anitha Ramanna, Policy Implications of Indias Patent Reforms -Patent Applications in the Post-1995 Era, 37 Econ. & Pol. Wkly 2065, 2002
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food security. 12 The first set of arguments can be further subdivided into two potential problems: the privatization of the agricultural innovation industry, and over patenting, while the second set addresses a potential lack of agricultural biodiversity as well as biased directions of innovation. The privatization of the agricultural innovation industry has been the most touted critique of plant breeder rights. Until the 1980s, the dominant trend in agricultural innovations was the sharing of knowledge and resources.13 However, strong IPRs favor the privatization of agricultural innovations, rather than knowledge sharing, because these rights enable patent holders to exclude others from use of the knowledge or make any use subject to royalty payments. Accordingly, IPRs catalyzed a switch from the previous model of generational adaptation of plant varieties to changing needs and climates towards the new, IPR informed model requiring purchase of genetically altered seeds. With this new model, however, are strictand especially in the United States, contractual restrictions against selling or re-planting saved seeds from previous crops. The rash of lawsuits by large seed corporations such as Monsanto in the late 1990s to mid 2000s against farmers who had been implicated in selling seeds with Monsantos patented genes or inadvertently growing crops from patented seeds without paying the royalty fees brought the negative effects of privatization to the media eye.14 In addition, research and development efforts by private companied typically center on plant varieties which have traits allowing corporations to develop a business model around their sales. These traits can take the form of sterilization after a certain number of planting cycles, the necessity of a certain accompanying pesticide, or other such genetic modifications. While intellectual property rights in theory also provide incentives for domestic producers of seed, the trend has been towards a domination of the seed industry by multinational corporations. 15 Further, there is a fundamental risk of over -patenting in the agricultural biotechnology industry. The ability to charge a royalty for access to technological innovations, on face, seems to be an easy way to incentivize research. However, the grant of too many exclusionary rights can stifle or even halt innovations which require a foundation comprised of many previous innovations. Professor Carl Shapiro of Berkeley University has described this blocking patent process as a metaphorical building of a pyramid. As the first layer of blocksthe primary material for researchis laid, necessitating royalty payments
The second field would seem to be a larger fi eld which encompasses the first. However, agricultural innovation cannot be fully subsumed into food security, as it has its own benefits outside of the total yield calculus. On the other hand, food security is not synonymous with agricultural innovation as political factors often play the most critical role i n determining food access and distribution. Thus, it is important to discuss thes e fields as two complementary, but ultimately independent sources of criti que agai nst IPRs. 13 Cullet, p. 265 14 http://decisions.fct-cf.gc.ca/en/2001/2001fct256/2001fct256.html 15 see Barton and Berger, Patenting Agriculture
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for each block is not a hefty mitigating weight on further innovation. However, as further layers are placed on the pyramid, it is easy to see how the resulting economic burden from cumulative royalties could slow down or even discourage further building. The potential of strong intellectual property rights to block downstream innovation is high if many weak or faulty IPRs have been granted, and particularly detrimental to overall market competition if most relevant IPRs are oligopolized by a few, large multinational corporations. The effect of IPRs on food security is similarly linked to the privatization of the agricultural innovation industry. However this privatization has completely different consequences in terms of food security. The first consequence is a result of what type of innovation IPRs incentivize. More specifically, private corporations utilizing IPRs are economically rewarded by innovations on plant varieties of specific interest to wealthy consumers and farmers, because these consumers will be able to deliver more of a profit for the corporation. Currently, only a small percent of the investment in research and development has being directed towards plant varieties or agricultural innovations for developing countries, and most of this investment has taken the form of acquiring seed companies in developing countries in addition to direct investment.16 The overall result is that private investment in agricultural innovations which could most effectively combat food securityinnovations needed mostly by more impoverished, developing countries is replaced by investment in products sought after by consumers and farmers in developed nations. The final critique examines the effect of IPRs more broadly, in the context of agricultural biodiversity. Biodiversity has been touted as a forgotten cause in the fight for acceptance of transgenic crops. High costs of research into biotechnology tend to result a specification of funding, with corporations focusing most of their research investment on a few promising varieties or plant breeds. Further, these protected varieties typically offer higher yields than their unprotected counterparts, encouraging farmers to switch from growing a diverse spectrum of crops to a relatively homogenous set of crops. The advent of these monocultures have prompted some alarm in scientific communities, which characterize this narrowing in the genetic base of global food crops as a type of genetic erosion.17 This loss in biodiversity can have several negative consequences, including the reduction of crop resistance to diseases or pests, as well as pest development of resistances to bio-pesticides produced by certain transgenic crops. VI. Conclusions

An evaluation of the legal landscape relevant to food security reveals disconcerting developments. On one hand, there have been many negative consequences related to the
16 17

Cullet, p. 266 Hammer, p. 242

privatization of agricultural technological innovation which do not seem to be outweighed by possible positive incentives for innovation on agricultural biotechnology offered by intellectual property rights. These range from the bias against research and development of food varieties relevant for developing countries, to a growing lack of biodiversity due to the investment focuses of private corporations. While these could be remedied by stringent legislation, the existing legislationnamely, the International Seed Treatydoes not harmonize farmer s rights on a national level, so cannot ensure that these rights are fully communicated to the affected population. Other forms of legal maneuveringstricter requirements for protection or eligibility of protection for plant varieties could potentially mitigate some of the noted harms, but this is a highly political issue which is unlikely to be supported by the large multinational seed corporations who hold much political sway. In short, much work remains to be done on the legal support for remedying the global food security crisis.

Bibliography

Anthony, Vivienne M, and Marco Ferroni. Agricultural Biotechnology and Smallholder Farmers in Developing Countries. Current Opinion in Biotechnology 23, no. 2 (April 2012): 278 285. Barton, John, and Peter Berger. Patenting Agriculture, 2001. Barton, John. Nutrition and Technology Transfer Policies. UNCTAD-ICTSD Project on Intellectual Property Rights and Sustainable Development , no. 6 (2004). Choudhary, Bhagirath. The New International Seed Treaty: Promises and Prospects for Food Security. Current Science 83, no. 4 (August 25, 2002). Cullet, P. Intellectual Property Rights and Food Security in the South. The Journal of World Intellectual Property 7, no. 3 (2004): 261 286. Hammer, Karl, Nancy Arrowsmith, and Thomas Gladis. Agrobiodiversity with Em phasis on Plant Genetic Resources. Naturwissenschaften 90, no. 6 (June 1, 2003): 241 250. Headey, Derek, and Shenggen Fan. Reflections on the Global Food Crisis: How Did It Happen? How Has It Hurt? And How Can We Prevent The Next One? 165. IFPRI Research Monographys (2010). International Covenant on Economic, Social and Cultural Rights, January 3, 1976. http://www2.ohchr.org/english/law/pdf/cescr.pdf. International Treaty on Plant Genetic Resources for Food and Agriculture, n.d. Papademetriou, Minas, Frank Dent, and Edward Herath, eds. Bridging the Rice Yield Gap in the Asian-Pacific Region. Food and Agriculture Organization of the United Nations Regional Office for Asia and the Pacific, October 2000. UN General Assembly Sixty-third Session, Mandate on the Special Rapporteur, n.d. UPOV 1991, 1991. Zilberman, D., H. Ameden, G. Graff, and M. Qaim. Agricultural Biotechnology: Productivity, Biodiversity, and Intellectual Property Rights. Journal of Agricultural & Food Industrial Organization 2, no. 2 (2004): 116.