Global Negotiations and Agreements on Agriculture

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INTRODUCTION

This thesis considers the current collective understanding of research on the rights conferred by Intellectual Property (IP) law on the agricultural industry concerning innovation and international food and agricultural law in promoting food security. The thesis aims to answer the question in a trans-disciplinary manner by linking knowledge platforms between the main disciplines of agriculture, economics and law. It uses the understanding of international food law and its governance to examine a holistic and equitable approach to IP, biotechnology, traditional knowledge (TK) and genetic resources (GRs).
The developed world has an advanced national and regional food and agriculture legal system in contrast to that existing in Africa. In the absence of national or regional appropriate food law in Africa, the thesis will focus on international food and agricultural law, its scope specifically focused on food security. The thesis uses the legal theory as an instrument of analysis as well as specific topics of significance in relation to food security. To answer the question of what food and agricultural law are and to help the readers to understand the difference from the outset, the following is important: Although the two are often entangled, each has its own peculiarities1 food law covers food trade, food safety and food security2 while agricultural law covers the legal aspect of food production and includes everything related to farming.
To be specific, the food and agricultural law discussed in this thesis is that adopted by the United Nations and the World Trade Organisation. Food and agricultural law in Africa is almost non- existent. In the absence of national or regional food law, the international food law could be utilised where it is necessary. International law generally is applicable in countries that have ratified it or acceded to it. The thesis will further investigate the application of IP law on food and agriculture and its effect on food security. Its primary focus is to address the question of how this allocation of rights conferred by IP law on food and agriculture ensures the right to food. The measure of the effectiveness of existing international food and agricultural law in safeguarding biodiversity and promoting food security will be discussed throughout this thesis.
The analysis will consider the universality of IP regimes that govern the present and future food systems. Thus, the evaluation of how seeds are transferred, how the benefits are shared, the legal entitlements to manage and control food, are of vital importance. The constraint of IP law determines the legitimacy of the legal entitlement to control food. Therefore, the ‘right to food’ is an important matter, which has to be addressed. The current international food systems have been widely criticised for failing to end hunger. This has most often been attributed to the existing systems that are not consistent and not well coordinated to respond to food insecurity. This thesis not only covers the problem relating to international food law, but also touches on the influence of various international organisations and institutions that have hosted the adoption of these systems.
The objective of this thesis is to suggest how various regulations governing food and agriculture and IP law need to be well coordinated and supportive of one another in order to address the current global food crisis. This thesis aims to contribute to this improvement. The theoretical basis of the study and the historical background will be briefly illustrated and explained to enable readers to grasp the contents of this study. The discussions will contextualise these terms in order to facilitate a better understanding of the subject matter. The theoretical basis of this study originates from a quote by Borlaug which states: Civilization as it is known today could not have evolved, nor can it survive, without an adequate food supply.
Yet food is something that is taken for granted by most world leaders despite the fact that more than half of the population of the world is hungry.4 In Africa hunger has been prevalent for centuries with no solution at hand. So far, unless a new mechanism is created, the entire attempt to tackle food insecurity is in vain.5 The norms, which administer food supply and production play a major role in food security, but are often neglected during investigations. The World Hunger and Poverty Facts and Statistics stated in 2014 that almost one billion people globally are affected by hunger,6 of which the majority are Africans.7

TABLE OF CONTENTS :

• 1. Chapter 1: Background and Basis of the Study
  • 1.1 Introduction
  • 1.2 Definition of intellectual property and its historical background
  • 1.3 Food
  • 1.4 The interaction between food and intellectual property
  • 1.5 Food insecurity in the case of Southern Africa
  • 1.6 The significance of the study
  • 1.7 The scope and limitation of the study
  • 1.8 Methodology of the study
  • 1.9 Research questions
  • 1.10 Structure and argument
• 2. Chapter 2: The Interface between Intellectual Property, Genetic Resources and Associated Traditional Knowledge and Existing International Food Law
  • 2.1 Introduction
  • 2.2 Intellectual property and traditional knowledge
  • 2.3 Patentability of genetic resources
  • 2.4 Bio-piracy and misappropriation of genetic resources
  • 2.5 Intellectual property and its effect on food accessibility
  • 2.6 Conclusion
• 3. Chapter 3: The Ongoing Discussions on Food Security
  • 3.1 Introduction
  • 3.2 Food insecurity
  • 3.3 Food wastage
  • 3.4 Right to food
  • 3.5 Historical development of plant variety protection
  • 3.6 Conclusion
• 4. Chapter 4: Patents, Agriculture and Invention
  • 4.1 Introduction
  • 4.2 Patents and economics
  • 4.3 WTO, TRIPS and agricultural trade
  • 4.4 WIPO and agriculture
  • 4.5 The effect of patents on agricultural trade negotiations
  • 4.6 Conclusion
• 5. Chapter 5: Global Negotiations and Agreements on Agriculture
  • 5.1 Introduction
  • 5.2 The Convention on Biological Diversity
  • 5.3 The International Treaty on Plant Genetic Resources for Food and Agriculture
  • 5.4 The International Union for the Protection of New Varieties of Plants
  • 5.5 Plant Breeder’s Rights
  • 5.6 The ongoing discussions on the agreements on trade-related aspects of IP rights review in Article 27(3)(b)
  • 5.7 Conclusion
• 6. Chapter 6: The Implementation of Various International Treaties
  • 6.1 Introduction
  • 6.2 Background and implementation of the FAO International Treaty on Plant and Genetic Resources
  • 6.3 The implementation of the Convention on Biological Diversity
  • 6.4 The implementation of the International Treaty on Plant Genetic Resources for Food and Agriculture
  • 6.5 The implementation of the Union for the Protection of New Varieties of Plants
  • 6.6 The implementation of the Agreement on Trade-related Aspects of Intellectual Property Rights
  • 6.7 Conclusion
• 7. Chapter 7: Conclusions and Recommendation
  • 7.1 Conclusion
  • 7.2 A particular approach in answering the research questions
  • 7.3 Possible way forward
  • 7.4 Using the identified recommendations to restructure the existing international food and IP law

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