The Right to Food and the TRIPS Agreement The Raoul Wallenberg Institute Human Rights Library Volume 30 The Right to Food and the TRIPS Agreement With a Particular Emphasis on Developing Countries’ Measures for Food Production and Distribution by Hans Morten Haugen LEIDEn • boSTon 2007 Printed on acid-free paper. A c.i.p. record for this book is available from the Library of Congress. isbn: 978 90 04 16184 9 Copyright 2007 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishers, idc Publishers, Martinus Nijhoff Publishers and vsp. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. 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Table of Contents Preface xi Part I: Treaties Relating to Food and Protection of Biotechnology 1 1 Introduction 3 1.1 General outline 3 1.2 Structure of the Study 9 1.3 Delimitations 10 2 Food, Biotechnology and Intellectual Property 13 2.1 Food 13 2.1.1 Food in a Human Rights Context 15 2.1.2 Increased Emphasis on Access to Food 18 2.2 biotechnology 19 2.2.1 Three Phases of biotechnology 19 2.2.2 Different Actors in biotechnology and their Attitude towards Intellectual Property Protection 21 2.2.3 Traditional breeders and Modern breeders 24 2.2.4 Strong Disagreements Regarding new biotechnology 26 2.3 The Expansion of the Intellectual Property Protection System 27 2.3.1 A General outline of Patent and Plant Variety Protection 28 2.3.2 Intellectual Property Protection in Various Phases 32 2.3.3 Metaperspectives on Patent and Plant Variety Rights 35 2.3.4 Justifications for Intellectual Property Protection 39 2.3.5 Alternatives to Patent and Plant Variety Protection on Plant Genetic Resources for Food and Agriculture: Protection through biological or Technical Means 45 3 Methodology: Principles and Sources under International Law 51 3.1 Interpreting Treaties 51 3.3.1 International Law in Interpretative Material 51 vi Table of Contents 3.3.1 Interpretation and Application of Treaties 52 3.3.2 Interpreting the Terms in Light of a Treaty’s object and Purpose 57 3.3.3 Principles for Identifying balance between Treaties 60 3.2 Interpretative Material under Human Rights Conventions 63 3.2.1 In General Concerning the Un Human Rights Instruments 63 3.2.2 The Relevant Interpretative Material from the Un Human Rights Instruments 64 3.3 Interpretative Material under the WTo 73 3.3.1 In General Concerning the WTo 73 3.3.2 The Relevant WTo Interpretative Material 74 3.4 Interpretative Material under the UPoV Convention 84 3.4.1 In General Concerning UPoV 84 3.4.2 The Relevant UPoV Interpretative Material 85 Part II: Relevant Provisions from the International Covenant on Economic, Social and Cultural Rights 87 4 Specifying the Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural Human Rights 89 4.1 General obligations of the Covenant 89 4.1.1 Article 2.1 89 4.1.2 Articles 2.2 and 3 100 4.2 basic Approaches for Understanding the Rights and obligations of the Covenant 102 4.2.1 Rights and Corresponding obligations 103 4.2.2 Arguments Concerning the nature of the Rights in the Covenant 104 4.2.3 Interpretation and Implementation of Economic, Social and Cultural Rights: ‘Progressive Realization’ and ‘Violations’ 108 5 The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights 115 5.1 The origins and the Content of the Right to Food 116 5.1.1 Emerging Recognition of the Right to Food 116 5.1.2 Introduction to the Analysis of Article 11 118 5.1.3 Article 11.1 119 5.1.4 Article 11.2 125 5.1.5 Article 11.2(a) 130 5.2 Clarifying Relevant Relationships 142 5.2.1 The Relationship between Improved Methods of Food Production and Improved Methods of Food Distribution 142 5.2.2 The Relationship between Technology and the Environment 146 5.2.3 The Relationship between the Provisions of the Covenant and the Universal Declaration of Human Rights as well as other Instruments 151 5.3 ‘International Cooperation’ 155 Table of Contents vii 5.3.1 International Cooperation in the Covenant 156 5.3.2 The Consultative Group on International Agricultural Research 158 5.3.3 The Relationship between FAo and CGIAR 162 6 The Right to Benefit from the Moral and Material Interests of Scientific Production and the Right to Enjoy Benefits from Scientific Progress and Its Applications 169 6.1 Article 15.1(c) 172 6.1.1 Authors’ Rights as Human Rights? 173 6.1.2 The Content of Article 15.1(c): Under Which Conditions Are Authors’ Rights Human Rights? 177 6.1.3 Understaning Article 15.1(c) based on the Three Levels of State obligations 184 6.1.4 Application of Article 15.1(c) 190 6.2 The Right to benefit from Scientific Progress and its Applications 192 6.2.1 The Content of Article 15.1(b) 193 6.2.2 Understanding Article 15.1(b) based on the Three Levels of State obligations 194 6.2.3 Private Research and State obligations 198 6.3 balancing Approaches between Paragraphs 15.1(b) and 15.1(c) 201 7 The Justifiable Limitations to the Recognized Rights 205 7.1 Article 4 205 7.2 Article 5 208 Part III: TRIPS and TRIPS-Compatible Protection 213 8 The TRIPS Agreement, Particularly Patent Protection 215 8.1 The TRIPS Agreement as Part of the WTo Agreement 215 8.1.1 Introduction 215 8.1.2 The Particularities of TRIPS 216 8.1.3 Principles and Procedures Regarding Developing Countries in the Dispute Settlement System 218 8.1.4 Application of the Dispute Settlement System and national Application of TRIPS Provisions 219 8.1.5 A brief Drafting History of TRIPS 221 8.2 Patent Protection in the TRIPS Agreement 223 8.2.1 Introduction 223 8.2.2 Patent Eligibility 224 8.2.3 Exclusions from Patentability 232 8.2.4 Exclusive Rights 239 8.2.5 Exceptions and Limitations 241 8.2.6 Summary of the Material Provisions on Patent Protection in TRIPS 251 8.3 Enforcement 251 viii Table of Contents 9 Effective Sui Generis Systems for the Protection of New Varieties of Plants 255 9.1 Plant Varieties Protection as Defined by UPoV 256 9.1.1 Eligibility Criteria 256 9.1.2 Exclusions from Plant Variety Protection 259 9.1.3 Exclusive Rights 260 9.1.4 Exceptions and Limitations 261 9.2 Requirements of an Effective Sui Generis System 265 9.2.1 Introduction 265 9.2.2 Considerations for Developing States 266 9.2.3 What is ‘Effective Sui Generis’ Understood to Imply? 268 9.2.4 Eligibility Criteria 270 9.2.5 Exclusions from Plant Variety Protection 275 9.2.6 Exclusive Rights 278 9.2.7 Exceptions and Limitations 281 9.2.8 Summary: Requirements of an ‘Effective Sui Generis’ System 285 Part IV: Comparison between Measures to Realize the Right to Food and Measures to Strengthen Patent and Plant Variety Protection 287 10 Jurisdictional and Jurisprudential Issues under the International Covenant on Economic, Social and Cultural Rights and the TRIPS Agreement 289 10.1 The Jurisdiction and Practice of Human Rights, Particularly the Committee on Economic, Social and Cultural Rights 291 10.1.1 The Jusrisdiction of the Committee 291 10.1.2 The Practice of the Committee 295 10.1.3 other Human Rights bodies 299 10.2 The Jurisdiction and Jurisprudence of the Dispute Settlement System, and the Practice of the WTo’s Political bodies 303 10.2.1 The Dispute Settlement System of the WTo: Clarifying the Provisions of the Covered Agreements by Taking into Account Relevant Rules of International Law 304 10.2.2 Which Rules of International Law Can be Taken into Account in the Dispute Settlement System – and How? 305 10.2.3 Jurisprudence of the WTo Dispute Settlement System, Including Analysis of the Extent to Which This Jurisprudence is Relevant for TRIPS and Human Rights Disputes 312 10.2.4 The Doha Declaration on TRIPS and Public Health 322 10.2.5 Potential Taking into Account the Right to Food in the WTo – Particularly in the Council on TRIPS, the Trade Policy Review body and the Committee on Agriculture 326 10.3 Could the International Court of Justice Solve a Dispute Relating to Patent Protection and the Right to Food? 330 Table of Contents ix 11 Principles for Identifying and Solving Conflicts between Treaties, as well as Identifying the Nature of Treaties, Applied to TRIPS and the Covenant 335 11.1 Conflict between Treaties 336 11.1.1 The Terms 336 11.1.2 Principles for Determining Conflict between Treaties 338 11.1.3 Conflict between Treaties on the Level of Taking Measures 340 11.2 Established Principles for Determining which Treaty Prevails in Situations of Conflict between Treaties 343 11.2.1 Introduction 343 11.2.2 Same Subject Matter? 344 11.2.3 Solving Conflict between Treaties if Harmonious Interpretation Is not Possible 345 11.3 nature of Treaties 351 11.3.1 Introduction 351 11.3.2 obligations Erga Omnes 352 11.3.3 The Concept of Multilateral obligations 360 11.3.4 The Weight of Human Rights obligations in International Economic Law Interpretation 370 12 Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection? 371 12.1 Approaches for Examining the Relationship between the Right to Food and Patent and Plant Variety Protection 372 12.2 The Treaty Provisions and the Measures to be Taken under the Treaties 373 12.2.1 Prohibitions – The Treaty obligations Cannot be Complied with Simultaneously 374 12.2.2 TRIPS-Prescribed Measures and the Compliance with the Covenant 377 12.2.3 Adopting Measures as Prescribed by the Covenant and the Compliance with TRIPS 393 12.2.4 no Direct Conflict, but Several Concerns Relating to the Implementation of the Two Treaties, Seen in Light of the Different object and Purpose of the Treaties 402 12.3 Human Rights Considerations when Adopting Strengthened Protection of Patents and Plant Varieties 407 12.3.1 obligations Relating to Available Resources and Distribution 409 12.3.2 obligations Relating to Undertaking Research 417 12.3.3 Summary 431