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. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. Printed and bound in The Netherlands.
Table of Contents
1 1.1 1.2 1.3
Preface
xi
Part I: Treaties Relating to Food and Protection of Biotechnology
1
Introduction General Outline Structure of the Study Delimitations
2 Food, Biotechnology and Intellectual Property 2.1 Food 2.1.1 Food in a Human Rights Context 2.1.2 Increased Emphasis on Access to Food 2.2 Biotechnology 2.2.1 Three Phases of Biotechnologyâ•› 2.2.2 Different Actors in Biotechnology and their Attitude towards Intellectual Property Protection 2.2.3 Traditional Breeders and Modern Breeders 2.2.4 Strong Disagreements Regarding New Biotechnology 2.3 The Expansion of the Intellectual Property Protection System 2.3.1 A General Outline of Patent and Plant Variety Protection 2.3.2 Intellectual Property Protection in Various Phases 2.3.3 Metaperspectives on Patent and Plant Variety Rights 2.3.4 Justifications for Intellectual Property Protection 2.3.5 Alternatives to Patent and Plant Variety Protection on Plant Genetic Resources for Food and Agriculture: Protection through Biological or Technical Meansâ•› 3 Methodology: Principles and Sources under International Law 3.1 Interpreting Treaties 3.3.1 International Law in Interpretative Material
3 3 9 10 13 13 15 18 19 19 21 24 26 27 28 32 35 39
45 51 51 51
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3.3.1 3.3.2 3.3.3 3.2 3.2.1 3.2.2
3.3 3.3.1 3.3.2 3.4 3.4.1 3.4.2
Interpretation and Application of Treaties Interpreting the Terms in Light of a Treaty’s Object and Purpose Principles for Identifying Balance between Treaties Interpretative Material under Human Rights Conventions In General Concerning the UN Human Rights Instruments The Relevant Interpretative Material from the UN Human Rights Instruments Interpretative Material under the WTO In General Concerning the WTO The Relevant WTO Interpretative Material Interpretative Material under the UPOV Convention In General Concerning UPOV The Relevant UPOV Interpretative Material Part II: Relevant Provisions from the International Covenant on Economic, Social and Cultural Rights
Specifying the Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural Human Rights 4.1 General Obligations of the Covenant 4.1.1 Article 2.1 4.1.2 Articles 2.2 and 3 4.2 Basic Approaches for Understanding the Rights and Obligations of the Covenant 4.2.1 Rights and Corresponding Obligations 4.2.2 Arguments Concerning the Nature of the Rights in the Covenant 4.2.3 Interpretation and Implementation of Economic, Social and Cultural Rights: ‘Progressive Realization’ and ‘Violations’
52 57 60 63 63 64 73 73 74 84 84 85
87
4
5
5.1 5.1.1 5.1.2 5.1.3 5.1.4 5.1.5 5.2 5.2.1
5.2.2 5.2.3
5.3
89 89 89 100 102 103 104 108
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights 115 The Origins and the Content of the Right to Food 116 Emerging Recognition of the Right to Food 116 Introduction to the Analysis of Article 11 118 Article 11.1 119 Article 11.2 125 Article 11.2(a) 130 Clarifying Relevant Relationships 142 The Relationship between Improved Methods of Food Production and Improved Methods of Food Distribution 142 The Relationship between Technology and the Environment 146 The Relationship between the Provisions of the Covenant and the Universal Declaration of Human Rights as well as Other Instruments 151 ‘International Cooperation’ 155
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5.3.1 International Cooperation in the Covenant 5.3.2 The Consultative Group on International Agricultural Research 5.3.3 The Relationship between FAO and CGIAR
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 6.1 Article 15.1(c) 6.1.1 Authors’ Rights as Human Rights? 6.1.2 The Content of Article 15.1(c): Under Which Conditions Are Authors’ Rights Human Rights? 6.1.3 Understaning Article 15.1(c) based on the Three Levels of State Obligations 6.1.4 Application of Article 15.1(c) 6.2 The Right to Benefit from Scientific Progress and its Applications 6.2.1 The Content of Article 15.1(b) 6.2.2 Understanding Article 15.1(b) based on the Three Levels of State Obligations 6.2.3 Private Research and State Obligations 6.3 Balancing Approaches between Paragraphs 15.1(b) and 15.1(c)
7 The Justifiable Limitations to the Recognized Rights 7.1 Article 4 7.2 Article 5 Part III: TRIPS and TRIPS-Compatible Protection
8 8.1 8.1.1 8.1.2 8.1.3
8.1.4
8.1.5 8.2 8.2.1 8.2.2 8.2.3 8.2.4 8.2.5 8.2.6 8.3
The TRIPS Agreement, Particularly Patent Protection The TRIPS Agreement as Part of the WTO Agreement Introduction The Particularities of TRIPS Principles and Procedures Regarding Developing Countries in the Dispute Settlement System Application of the Dispute Settlement System and National Application of TRIPS Provisions A Brief Drafting History of TRIPS Patent Protection in the TRIPS Agreement Introduction Patent Eligibility Exclusions from Patentability Exclusive Rights Exceptions and Limitations Summary of the Material Provisions on Patent Protection in TRIPS Enforcement
156 158 162
169 172 173 177 184 190 192 193 194 198 201 205 205 208
213 215 215 215 216 218 219 221 223 223 224 232 239 241 251 251
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9
9.1 9.1.1 9.1.2 9.1.3 9.1.4 9.2 9.2.1 9.2.2 9.2.3 9.2.4 9.2.5 9.2.6 9.2.7 9.2.8
Effective Sui Generis Systems for the Protection of New Varieties of Plants Plant Varieties Protection as Defined by UPOV Eligibility Criteria Exclusions from Plant Variety Protection Exclusive Rights Exceptions and Limitations Requirements of an Effective Sui Generis System Introduction Considerations for Developing States What is ‘Effective Sui Generis’ Understood to Imply? Eligibility Criteria Exclusions from Plant Variety Protection Exclusive Rights Exceptions and Limitations Summary: Requirements of an ‘Effective Sui Generis’ System
255 256 256 259 260 261 265 265 266 268 270 275 278 281 285
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 10.1 The Jurisdiction and Practice of Human Rights, Particularly the Committee on Economic, Social and Cultural Rights 10.1.1 The Jusrisdiction of the Committee 10.1.2 The Practice of the Committee 10.1.3 Other Human Rights Bodies 10.2 The Jurisdiction and Jurisprudence of the Dispute Settlement System, and the Practice of the WTO’s Political Bodies 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 10.2.2 Which Rules of International Law Can Be Taken into Account in the Dispute Settlement System – and How? 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 10.2.4 The Doha Declaration on TRIPS and Public Health 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 10.3 Could the International Court of Justice Solve a Dispute Relating to Patent Protection and the Right to Food?
289 291 291 295 299 303
304 305
312 322
326 330
Table of Contents
11
Principles for Identifying and Solving Conflicts between Treaties, as well as Identifying the Nature of Treaties, Applied to TRIPS and the Covenant 11.1 Conflict between Treaties 11.1.1 The Terms 11.1.2 Principles for Determining Conflict between Treaties 11.1.3 Conflict between Treaties on the Level of Taking Measures 11.2 Established Principles for Determining which Treaty Prevails in Situations of Conflict Between Treaties 11.2.1 Introduction 11.2.2 Same Subject Matter? 11.2.3 Solving Conflict between Treaties if Harmonious Interpretation Is Not Possible 11.3 Nature of Treaties 11.3.1 Introduction 11.3.2 Obligations Erga Omnes 11.3.3 The Concept of Multilateral Obligations 11.3.4 The Weight of Human Rights Obligations in International Economic Law Interpretation Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection? 12.1 Approaches for Examining the Relationship between the Right to Food and Patent and Plant Variety Protection 12.2 The Treaty Provisions and the Measures to be Taken under the Treaties 12.2.1 Prohibitions – The Treaty Obligations Cannot Be Complied with Simultaneously 12.2.2 TRIPS-Prescribed Measures and the Compliance with the Covenant 12.2.3 Adopting Measures as Prescribed by the Covenant and the Compliance with TRIPS 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 12.3 Human Rights Considerations when Adopting Strengthened Protection of Patents and Plant Varieties 12.3.1 Obligations Relating to Available Resources and Distribution 12.3.2 Obligations Relating to Undertaking Research 12.3.3 Summary
335 336 336 338 340 343 343 344 345 351 351 352 360 370
12
371 372 373 374 377 393
402 407 409 417 431
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Part V: Conclusions
437
Acronyms
445
Symbols
447
Definitions
449
Table of Cases
451
Literature
455
Index
503
Preface
This study came about as a result of a request by Senior Researcher Asbjørn Eide, asking if I wanted to be involved in the International Project on the Right to Food in Development (IPRFD). This was made possible through the Norwegian Centre for Human Rights (NCHR), which hosted me and provided excellent working conditions, and the Norwegian Research Council, which funded the project. For all of this I am indebted, and would particularly like to thank everyone in the IPRFD, as well as the NCHR staff. I have also had the privilege of being hosted both by the International Plant Genetic Resource Institute (IPGRI), the International Service for National Agricultural Research (ISNAR, now a part of IPGRI), and the International Food Policy Research Institute (IFPRI). This allowed me to understand more about the crucial contribution of these Centers toward the realization of the right to food, and I thank those at these Centers who assisted me. I have additionally been hosted by the Max Planck Institute for Comparative Public Law and International Law and the Max Planck Institute for Intellectual Property, Competition and Tax Law, and express similar gratitude to the staff at these two institutes. Obviously, those who financed these very inspiring visits are also included in this expression of gratitude. To my three supervisors, Ole Kristian Fauchald, Are Stenvik and Nicolas de Sadeleer, I am particularly indebted. By reading my drafts thoroughly at the various stages, they were able to guide me in the right direction. Especially Ole Kristian has been very committed through the whole process. Bringing together human rights and patent rights as two relatively diverse fields of law is challenging. I hope to have bridged some gaps in the perceptions of these two fields of law, and that human rights will influence the development of intellectual property rights. Finally, regarding substantial input, colleagues at the University of Oslo have been of much inspiration. The Research Fellows are very far from the image that is created in the media, emphasizing unsound competition, materialism, and narrow-mindedness among many students. They have, through the process, been a source of inspiration. Also the Commission mandated to examine the PhD are to be thanked for their contributions, both during the examination and in the preparation of the manuscript to become a book: Hans Christian Bugge, Astri M. Lund and Eibe Riedel.
xii
Preface
I owe my wife, Ellen, particular thanks for her patience and love. This study is dedicated to my dear friend, Erik Blytt, who died from cancer at the age of 29 on 9 January 2005. He had started his PhD just some months after me, but was never able to finalize his work. He was a very promising researcher and was able to exercise great influence and spread joy in the years during his much too short life. Note on the reference to URL addresses There are no specifications of ‘date visited’ when referring to web-pages. All efforts have been made, however, to ensure that the references given are correct.
Hans Morten Haugen Oslo
Part I: Treaties Relating to Food and Protection of Biotechnology
After a short introductory chapter, Chapter 2 will provide the framework for the book, particularly regarding the relationship between the right to food and intellectual property rights, more specifically patent and plant variety protection. Chapter 3 will identify important principles with regard to interpretation and application of international law, as well as an overview of the relevant interpretative material.
1
Introduction
1.1
General Outline
Three profound developments relevant for this study have taken place in the field of agricultural science during the last decade. First, advanced biotechnological and transgenic research is expanding rapidly. Second, such research is increasingly undertaken by the private sector. Third, more and more of the products of such research are subject
Biotechnology is defined in the Convention on Biological Diversity as ‘any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use’. Biotechnology has been used for several thousands years to develop new plants and plant varieties, and to improve the qualities of existing ones. A more limited definition of biotechnology is found in the FAO’s Statement on Biotechnology (FAO 2000; see www.fao.org/biotech), which defines biotechnology as ‘a range of different molecular technologies, such as gene manipulation and gene transfer, DNA typing and cloning’. In this book, the term ‘new biotechnology’ is applied to refer to the techniques that have developed since the discovery of the recombinant DNA technology, in order to differentiate from other forms of biotechnology. Transgenic research (GMOs) is an advanced form of biotechnology. While this study will not discuss GMOs per se, transgenic crops will be dealt with, as almost all such crops are protected by patents. Their relevance is related to the intellectual property protection. See <www.isaaa.org> for the spread of transgenic crops, reporting a 15 per cent increase annually. Still, the public sector is dominant in developing countries (private sector representing only 5.5 per cent of total agricultural research investments in 1995, representing 672 million USD), while the private sector has surpassed the public sector in industrialized countries, being responsible for 51.5 per cent of total agricultural research investments (representing 10.829 million USD); see Pardey and Beintema 2001, p. 10. Regarding public agricultural research investments, they find (p. 4) that in real terms, there has been an increase (1976: 7099 million USD in industrialized countries; 4738 million USD in developing countries; 1995: 10,215 million USD and 11,469 million USD, respectively), but these investments are just enough to keep ahead of inflation. Hence, they observe (p. 12) that agricultural research and development “…still relies on significant amount of public sup-
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Chapter 1
to patenting and other intellectual property protection. The Special Rapporteur on the right to food of the UN Human Rights Council states: “A marked paradigm shift has occurred from a system seeking to foster food security on the basis of the free exchange of knowledge to a system seeking to achieve the same goal on the basis of private appropriation of knowledge.” Still, however, agricultural production among most of the world’s farmers is based on traditional breeding and improvement of plant genetic resources and the exchange of seeds. Information on such improved seeds is usually oral, not expressed in scientific terms. It is not easy to identify the farmer who found the way of breeding and developing new crops. Moreover, there are no mechanisms for rewarding such persons. Such seeds are available for everyone, and traditionally there have been no procedures to exclude anyone from obtaining such seeds. Such characteristics are different from the system of intellectual property rights which originated in the western world. This system has expanded as a result of technological developments and political strategies, where States adopted legislation that was compatible with their level of industrial development, which reflected national strategies to promote such development. Most western States grant patents to plants as such. Patent protection for asexually or vegetatively reproduced plants has been available for many decades in the USA, through the 1930 Plant Protection Act.10 For many developing countries, their technological level has not led to strong internal pressure for a comprehensive system for intellectual property protection. In addition, these countries have traditionally expressed opposition against exclusive rights for any reproductive genetic resources. These States are usually resource-rich on genetic resources, but fear that they will lose ownership and control over such resources.
port…” Alston et al. 1998, p. 1063, report growth rates in public agricultural research to be 2.3 per cent in industrialized countries and 5.1 per cent in developing countries. According to World Bank 2003, p. 41, nearly 80 per cent of agricultural biotechnology-related patents are held by the private sector; for an analysis on patenting by the public sector in developing countries, see Salazar et al. 2000; and by international agricultural research centers, see Cohen, J. I. et al. 1998. The right to food, E/CN.4/2004/10, paragraph 38. Genetic resources is defined as “genetic material of actual or potential value”. Genetic material includes any material of plant, animal, microbial or other origin containing a gene. A gene is defined as the “unit of heredity” (FAO’s Glossary of Biotechnology for Food and Agriculture (FAO 2001a), p. 124 and p. 119 – based on the Convention on Biological Diversity). See Bollier 2003 for a strong argument for keeping plant genetic resources in the public domain. With regard to the EC, see Article 4.2 of Directive EC/98/44 (“Inventions which concerns plants or animals shall be patentable…”). For USA, see decision by the Supreme Court in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l., Inc., 534 U.S. 124 (2001). 10 35 United States Code, Section 161 (‘Patent for plants’): “Whoever invents or discovers and asexually reproduces any distinct and new variety of plant […] may obtain a patent therefore…” An excellent analysis of the developments in the USA can be found in Fowler 1994.
Introduction
There are tensions between industrialized and developing countries concerning intellectual property protection on genetic resources in general and plant genetic resources for food and agriculture in particular. Developing countries do not believe they are rewarded sufficiently for the resources taken from their territories by private companies or public research institutions. Industrialized countries have experienced high agricultural yields by applying biotechnology, driven by the private sector and facilitated by the granting of intellectual property rights. This strategy is also held to be beneficial for developing countries,11 but there are highly diverse opinions, and the relationship between intellectual property and modern biotechnology is complex.12 Food production depends on a rich variety of plant genetic resources. There is more information than ever on the state of our agricultural genetic resources and on the responsibility of the human race in their degradation.13 Moreover, there are detailed studies on how to abolish world hunger.14 The hunger problem is most acute in developing States. Furthermore, the least-developed countries particularly lack technological capacity for food production, and depend heavily on agriculture. This study, acknowledging that insufficient food is a result of complex factors, seeks to identify the relationship between protection of intellectual property rights on agricultural inputs, primarily seeds, and human rights obligations of States. The most important human rights provision is Article 11.2(a) of the International Covenant on Economic, Social and Cultural Rights, 15 which reads: The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed [t]o improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or
11
See CGIAR (Consultative Group on International Agricultural Research) 1998d, p. ix, asking for “…a more positive view about the role of IP [intellectual property]” and van Wijk et al. 1993, p. 31, concluding with regard to developing countries that “…adequate protection of IPRs is necessary…” 12 FAO is generally understood to favor modern biotechnology (See FAO 2000 and FAO 2004), but has also observed that intellectual property protection is one of the reasons why poor countries and poor farmers do not have appropriate access to such new biotechnology (Bruisma 2003 (ed.), p. 280; see press release for the 2004 Report: <www.fao.org/newsroom/ en/news/2004/41714/index.html>. 13 See the 2005 Millennium Ecosystem Assessment Synthesis Report, which is a joint effort by various UN organizations and non-governmental organizations, launched by Kofi Annan in 2001; particularly pp. 41, 60 and 64; see: <www.millenniumassessment.org//en/Products. Synthesis.aspx>. 14 See the 2005 report, Halving hunger: it can be done, by the UN Millennium Campaign’s Task Force on Hunger; see: <www.unmillenniumproject.org/reports/reports2.htm#01>. 15 Adopted 16 December 1966 as UN doc A/RES/2200 (XXI), annex; 21 U.N. GAOR Supp. (No. 16), at 49, U.N. Doc. A/6316 (1966), registered as 993 U.N.T.S. 3; entered into force 3 January 1976.
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reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources.
Production of food depends on seeds. There is a constant need for new seeds, as seeds gradually lose some of their yielding qualities. Some authors, however, express concerns that it might be more difficult to continue one’s traditional farming practice, including the free exchange of seeds, as an increasing proportion of new seeds are being protected.16 At the core of the discussion is who should provide new seed: the public or the private sector, or rather the farmers themselves? Farming in all parts of the world is faced with new challenges, due to the increasing industrialization and role of commercial actors in providing the input, as well as the opening up of markets. This book, however, will concentrate on how food production and distribution is affected by new patterns of ownership over propagating material, and will not examine the policies and pattern of agricultural trade. This study will elaborate on the relationship between internationally recognized human rights on the one hand, and patent and plant variety legislation and practice on the other, in accordance with the standards established by the International Covenant on Economic, Social and Cultural Rights (‘the Covenant’) and the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights).17 The relevant provisions of the two will be analyzed with the aim of identifying both whether there is conflict or compatibility between the two. Obviously there is a relationship between human rights and intellectual property rights, also recognized in the text of the Covenant. Article 15.1(c) recognizes …the right to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Several authors have recently addressed the human rights implications of stronger intellectual property rights, inspired by two resolutions, adopted by the Sub-Commission on
16 This is an argument posed by critics, such as Vandana Shiva (Shiva 1993, 1997 and 2001). It is true that some activities might be restricted, as farmers can only exchange seeds with those farmers who continue to use traditional seeds, and that the local seed markets are increasingly dominated by commercial seeds. There are, however, more serious cases of alleged conflict between patent rights and the interests of farmers, more specifically the cases in which patent claims have been defined so widely that they also cover traditional seeds, the claims should be rejected and the patent revoked. This has been the case in several of the most famous cases, such as quinoa (US. Patent 5,304,718), neem (US. Patent 5,411,736 and US. Patent 5,409,708) and turmeric (US. Patent 5,401,504), all of which have been revoked. Such processes, if they take place in the court, are complex, lengthy and costly. 17 Adopted 15 April 1994, registered as 1869€U.N.T.S.€299, (Annex IC of the Marrakesh Agreement Establishing the World Trade Organization, 1867 U.N.T.S. 3); entered into force 1 January 1995.
Introduction
the Promotion and Protection of Human Rights, and the Statement on Article 15.1(c), adopted by the Committee on Economic, Social and Cultural Rights.18 Patent rights and rights concerning plant varieties seek to protect the interests of innovators and breeders, and foster innovations and productivity. Human rights, on the other hand, establish a minimum standard for the protection of the individual, including what constitutes a minimum standard of living for everyone. The main challenge is to identify if and how these two norm sets can be reconciled, and whether there is a conflict between the ‘TRIPS compatible’ protection of new biotechnology on the one hand, and the right to food on the other. An underlying question is whether a human rights approach can provide some guidance for future negotiations of intellectual property rights treaties, but also in the implementation of existing treaties. A specific emphasis will be on the developing countries. Many authors have emphasized that developing countries are not in a position where strong protection systems are suitable for them.19 A system developed for advanced industrialized countries in the North is not appropriate for countries which are rich in natural resources, but poor in scientific, institutional and financial resources. It is uncertain whether farmers, local companies or foreign companies will reap the benefits from the introduction of patent protection in the field of biotechnology.20 The impact of the intellectual property system on the most marginalized will be a particular focus. In this study, a right to food approach will be applied rather than a ‘food security’ approach.21 Food security is an objective and is measured by various criteria, most com-
18 See Blakeney 2002a, p. 120, and Blakeney 2002b, referring to the Sub-Commission’s Resolution 2000/7 (Sub-Commission 2000a), Chapman 2002, who refers also to the subsequent resolution from 2001 (Sub-Commission 2001a), as well as Evans 2000, claiming that “…lawand policymakers must work to bring human rights […] into the global economic community of the trade regime” (Evans 2000, p. 887). Dutfield 2003b, writes on page 228 about the Sub-Commission’s 2000 Resolution in a somewhat more skeptical manner, saying that the resolution “…is not well written.” 19 See UNDP 1999, pp. 66-76, IPR Commission 2002, p. 7, and Dutfield 2001a, stating on p. 375 that the “…ideal situation would be to replace TRIPS with an agreement requiring much lower minimum standards and with much more flexibility.” See also Drahos 2001, which concludes on p. 67 with regard to developing countries: “Increasing the role of the patent system in biotechnology should be resisted because gaining benefits from that system depends on a large industrial and organizational infrastructure.” See also Helfer 2002, p. 43-44: “States with large-scale agriculture or plant breeding industries are likely to benefit by adopting relatively robust IPR protection…[…] States with agricultural systems that are domestically focused or rely upon the cultivation of traditional varieties by small-scale farmers face a different set of interests and incentives.” On the other hand, the World Bank 2001, p. 145 states that developing countries may benefit, “…at least in the long run.” 20 See IPGRI 1999 for a view that foreign companies will benefit; alternatively, see Boyd et al. 2003. 21 See Mechlem 2004, particularly pp. 633-634 for a presentation of the main differences between a food security approach and a right to food approach.
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prehensively developed by FAO.22 As the right to food is recognized in international treaties – and hence is a part of international law – it imposes legal obligations on the State. Similar obligations cannot be derived from a food security approach. Tools and concepts developed for analyzing food security are, however, relevant for the right to food. This study focuses on the right to food, as this allows for an analysis of treatybased obligations imposed by human rights treaties, seen in relation to treaty-based obligations imposed by intellectual property treaties. The relationship between intellectual property law and human rights has gained increasing interest recently.23 This study develops a more in-depth analysis, based on a detailed analysis of the provisions of the two treaties. While the analysis will focus on the relationship between the Covenant and the TRIPS Agreement, one should also be aware of other international agreements regulating plant genetic resources. International instruments include, in particular: – The Convention on Biological Diversity, – FAO’s International Treaty on Plant Genetic Resources for Food and Agriculture, – The UPOV Convention on the Protection of New Varieties of Plants. In addition to these treaties, references will be made to processes in the World Intellectual Property Organization (WIPO) on traditional knowledge and genetic resources, as well as the negotiations of a Substantive Patent Law Treaty. All of these treaties are affected by the strengthened intellectual property system resulting from the adoption and subsequent implementation of TRIPS. An underlying 22 Food security is defined by FAO in the following way: “Food security, at the individual, household, national, regional and global levels [is achieved] when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life” (FAO 1996b, paragraph 1 of the Plan of Action). The most recent identification tool for assessing food security is FAO’s Food Insecurity and Vulnerability Information and Mapping System (FIVIMS). These systems could be adopted and implemented by all countries, and focus in particular on the situation at the household level. 23 Among those that have raised the relationship between human rights, as recognized in the Covenant, and intellectual property, as recognized in the TRIPS Agreement (Cohn 2001, Drahos 1999, Cornides 2004, Helfer 2004, Rott 2002, Walker 2001; see also two masters theses on the right to food and TRIPS, by Wanjiru Mwangi 2002 and Edwardson 2003), the content of the human rights and corresponding obligations, as well as the balance between human rights and intellectual property is not spelled out in great detail. One author who devotes brief attention to Article 27.2 of the Universal Declaration of Human Rights argues that this provision actually serves to expand the scope of intellectual property protection: “…protection is to be made available to creations (and discoveries in the sense of the Universal Declaration) without any discrimination as to the field of technology and science” (Pires de Carvalho 2005, p. 242, note 654). This view cannot be considered correct, as the ‘authors’ rights’ paragraph of the Universal Declaration (and the Covenant) cannot be understood as constituting ordinary intellectual property rights. Based on this wrongful assumption, he also concludes at p. 243: “…to protect the rights of inventors and authors is at least as relevant as to protect biodiversity.”
Introduction
question is how to secure access to plant genetic resources or seeds,24 in particular to the most vulnerable farmers, while also providing the necessary incentives to ensure continuous improvements of the plant genetic resources and the provision of new seeds with improved qualities. This study will compare two systems that are based on a different logic and rationality. Both the origin and the justification of the treaties presented in the book clearly differ. Much is written on both TRIPS and the Covenant. Little is written on the relationship between them. Hence, the study will test the observation made by the Sub-Commission on the Promotion and Protection of Human Rights that there is an ‘apparent conflict’ between TRIPS and international human rights law,25 which is the basis from which this author’s own interest in this field emerged. 1.2
Structure of the Study
This study aims to answer the following question: To what extent is there conflict between the obligations to ensure the right to food as recognized in the International Covenant on Economic, Social and Cultural Rights and the obligations imposed by intellectual property protection of plants and plant varieties as recognized in the TRIPS Agreement, and to which extent are they mutually supportive, also taking into account the international treaties regulating plant genetic resources? The general outline of the study is as follows: Part I consists of two chapters, in addition to the Introduction. Chapter 2 establishes the relationship between food, biotechnology and intellectual property protection, as well as clarifying issues relating to plant genetic resources. A presentation of the alternatives to intellectual property protection will also be provided. Chapter 3 presents the basic principles for interpretation under public international law, based on Articles 31 and 32 of the Vienna Convention on the Law of Treaties, and Article 38.1(d) of the Statute of the International Court of Justice, and examines the interpretative material under the respective treaties. Part II analyzes the relevant provisions of the International Covenant on Economic, Social and Cultural Rights. Chapter 4 examines approaches for understanding the nature of rights and obligations contained in the Covenant. Chapter 5 investigates particularly measures relating to food production and distribution, to which little attention has been paid.26 Chapter 6 seeks to identify the balance between the rights of the authors and the rights of everyone to benefit from science. Chapter 7 addresses two articles on limitations. Part III analyzes the TRIPS Agreement. Chapter 8 identifies how TRIPS must be understood in the context of the WTO Agreement with all its annexes. Chapter 9 focuses 24 The access to the means of food production, including seeds is detrimental for the subsequent enjoyment of the right to food (see CGIAR 1998b, Executive Summary, p. ix). 25 Sub-Commission 2000a, paragraph 2. 26 Alston 1984 and Craven 1995 are notable exceptions.
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10
Chapter 1
particularly on the minimum requirements of an ‘effective sui generis system’, as the book is on TRIPS compatibility, and not UPOV compatibility. Part IV develops three various approaches for analyzing the relationship between the two treaties. Chapter 10 analyzes one aspect of the jurisdiction and jurisprudence of relevant organs under the two treaties, namely to which extent they can take into account obligations arising under the other treaty in their interpretation and clarification. It will also be analyzed whether the International Court of Justice can solve disputes regarding the issues addressed in this book. Chapter 11 identifies – if harmonious interpretation is not possible – how to apply the principles for determining which treaty will prevail in a situation of conflict with another treaty. Moreover, will the interests protected by a human rights treaty imply that such treaties must be given particular emphasis? Chapter 12 analyzes the relationship between the treaties, applying different conflict approaches. The chapter identifies certain obligations imposed by the Covenant, analyzing whether human rights obligations can be more actively observed when patent and plant variety legislation is adopted and implemented. Part V attempts to draw some conclusions and recommendations, derived from the analysis in the previous parts. 1.3
Delimitations
The relationship between human rights and patent rights is complex. Since this is a legal study, not all dimensions of distributional impact will be analyzed in detail. However, such insight might represent important information which will be included in the study, particularly in Chapter 12.3.1, but also in Chapter 2.3.1. There have been attempts to calculate the impact on growth and distribution of a patent system in general,27 but there are insufficient analyses of biotechnology patents and plant breeders’ rights.28 The World Bank has concluded that “…much remains to be learned about the implications of IPR protection.”29 More recent approaches developed by the Committee on Economic, Social and Cultural Rights30 to determine the core content of specific human rights, applying the 27 See estimates on rent transfers resulting from stronger protection of patents, by Maskus 2000, p. 184 28 See Blakeney et al. 1999, concluding on p. 225 that “…no empirical analyses, either sociological or economic, have been done on the impact of IPR on food and agriculture, especially in developing countries.” At the 6th International Conference of the International Consortium on Agricultural Biotechnology Research (ICABR), however, Pray et al. 2002, presented findings from 37 developing countries in their paper titled ‘The Importance of Intellectual Property Rights in the International Spread of Private Sector Agricultural Biotechnology’, concluding that protection of intellectual property rights in general and plant varieties protection in particular contributed to the spread of agricultural biotechnology. 29 Primo Braga et al. (eds.) 2000, p. 48. Lele et al. (eds.) 2000 analyzes intellectual property specifically in the agricultural sector. For a recent analysis, see Louwars et al. 2005. 30 The Committee consists of 18 members, who are all elected by ECOSOC for four years, and are eligible for re-election if re-nominated. The Committee is established in accordance with ECOSOC Resolution 1985/17, confirmed by General Assembly Resolution A/RES/42/102, and
Introduction
concepts ‘availability’ and ‘accessibility’, also have an economic dimension. Therefore, while this is a legal analysis, references to economic studies will also be provided, to the extent that it is relevant for the analysis. Moreover, the observation that there seems to be a relationship between private research efforts and stronger intellectual property protection is crucial to this study. The other side of this causality, if there is any relationship between intellectual property and increased research efforts, is addressed in Chapter 12.3.2.31 There is no doubt that the private sector has invested heavily in research, leading to a situation where the private sector is leading the development of improved food products. Issues relating to transgenic food (genetically modified food) are relevant in a book analyzing food and intellectual property, as most of the transgenic plants are protected by patents. While there is a relationship between transgenic food and intellectual property protection, this study explicitly does not analyze transgenic food from a human rights perspective, but is limited to the actual implementation of the provisions of TRIPS. Moreover, international treaties regulating food quality standards are not analyzed in detail in this book.32 This study does not intend to give a full presentation of all potentially relevant treaties. The main focus will be on the United Nations human rights instruments. The regional human rights instruments or bodies will not be explicitly dealt with, except for instances where such regional treaties can contribute to the interpretation of international treaties. Neither TRIPS nor the Covenant can be analyzed in isolation from other treaties. Moreover, this analysis will be limited to some core articles of the most relevant treaties, particularly the UPOV Convention in the context of an ‘effective sui generis system’ for plant variety protection, but also the CBD and ITPGRFA, which are both regulating genetic resources. Among the listed measures of Article 11.2(a), particular attention will be paid to how measures relating to improved food production relate to measures for improved food distribution. Will the measures for food production eventually have an effect on whether the measures for food distribution can be taken with full effect? In this study, other measures relating to national and international food distribution, such as patterns of is the only one of the seven UN human rights ‘treaty bodies’ mandated to supervise the implementation of their respective treaty which is not established by the text of the treaty itself, but through a subsequent resolution. The Committee is a subsidiary organ of ECOSOC and derives its formal authority from that body. The Committee meets twice a year to examine State reports and issues general comments, the latter in order to “…suggest improvements in the reporting procedures and to stimulate the activities of the State parties, the international organizations and the specialized agencies…” (‘The purpose of general comments’, UN doc. E/1989/22, p. 87, reprinted in Eide et al. (eds.) 2001, Annex 2). 31 Lesser et al. 2000, p. 7, finds no causal relationship between intellectual property protection and private research, except from in the field of pharmaceutical and agrochemical production: “…strong IPRs are neither a necessary nor sufficient condition for R&D investments, at least in certain sectors.” 32 The relevant treaties are the Cartagena Protocol on Biosafety under the Convention on Biological Diversity, as well as the FAO/WHO Codex Alimentarius Commission, responsible for coordination of food standards internationally.
11
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Chapter 1
food trade, general policies on educational and awareness-raising, or structural changes relating to food production, such as land reform, will not be analyzed. In TRIPS, the emphasis will be on Part II, establishing the substantive standards, and there will not be an in-depth analysis of Part III, on issues relating to enforcement. By analyzing the specific provisions of the Covenant and the TRIPS Agreement, this study will contribute to a clearer understanding of the requirements of both treaties, of relevance for national authorities which are under an obligation to implement the two treaties. This study will not examine national legislation in detail, but will provide examples from such implementation.
2
Food, Biotechnology and Intellectual Property
This chapter will present the basic relationships between food and intellectual property protection, as they are related through both the plant breeding derived from the Mendelian principles of heredity which took place throughout the twentieth century, as well as the new biotechnology, which developed in the last 25-30 years. The human rights dimensions of food, within a framework of policies relating to food, will be presented initially. Then the developments of modern biotechnology will be outlined. Finally, a description and an analysis of the evolution of intellectual property protection, as well as its justifications and characteristics, will be presented. 2.1
Food
This book does not intend to discuss the various aspects of food per se; rather, it will focus on the legal obligations relating to food. Food is understood as human intake. Furthermore, for the purpose of this book, it is useful to distinguish between food as a nourishment in a solid form, as opposed to a liquid form. In other contexts, it is highly relevant to consider water as a crucial element in food. This elaboration of the right to food is preceded by a confirmation by the Committee on Economic, Social and Cultural Rights that 840 million persons all over the world are chronically hungry. The Committee then continues: “Fundamentally, the roots of the problem of hunger and malnutrition are not lack of food but lack of access to available food…” This understanding of what affects the right to food must be noted. In general, there is agreement that there is sufficient food for all in the world today. Highly unequal production in various regions, combined with ecological degradation and market failures, result in the present pattern of over-consumption of food in certain regions and underconsumption in others.
In brief, Gregor Mendel (1822-1884) was the first to explain the transmission of hereditary traits from parent plants to offspring. Feed, on the other hand, is for animal intake. General Comment No. 12 ‘The right to adequate food’ UN doc E/2000/22, pp. 102-110, paragraph 5, reprinted in Eide et al. (eds.) 2001, Annex 2.
14
Chapter 2
In this study, the focus is on how various forms of ownership and control over the reproductive material, primarily seeds, affect the realization of the right to food. This analysis is based on the relationship between the production process, and the subsequent distribution of this food. Successful research efforts might result in a new plant variety or a plant with new and improved characteristics. These results might qualify for intellectual property protection under national law, in accordance with the TRIPS requirements. The emphasis in this study on the technical and legal aspects relating to food does not imply that food is primarily considered in a technological perspective. In order to understand the rationality of the different technological and legal processes relating to food which have taken place recently, however, this study will focus on the research efforts to achieve higher yields. As with all living resources, food plants are able to reproduce themselves. Most farming is based on the sowing of seeds, which is a form of interference in the natural reproduction. A new harvest generates new seeds, and farmers have traditionally reused their own seed. After a certain period, the yields deteriorate and the farmers need to have access to new seeds. This so-called ‘replacement rate’ differs, but more and more farmers purchase new seeds for every new season. Food production is the result of conscious decisions by the farmer regarding the control over, cost of and quality of seeds. Such decisions are taken by the individual farmer every year, based on, inter alia, traditional farming practices, contemporary practice of other farmers, new seeds or information on such seeds, and the introduction of new legislation and the possible consequences of acting in violation of such legislation. Farmers take their decisions with the purpose of maximizing the production and the revenue from producing food. For many farmers, stability and predictability are, however, as important as the potential increased revenue they can gain from sowing new and improved seeds. One can at least assume that farmers will be able to make conscious decisions on whether the increased costs from purchasing seeds from private seed traders will be repaid by a proportionate increase in yields. Food is a natural, renewable resource, harvested from food plants. For the purpose of this study, it is important to note the difference between the phenotype and the genotype of a plant. The first is the physical appearance of the organism or plant. This is obviously the property of the farmer. The genotype is the genetic characteristic of an organism. The genetic construction is not visible per se, but might become visible as the plant grows. Increasingly, the genetic characteristics of certain seeds are the subject of various forms of genetic modification, which might result in patent protection, provided that the legal eligibility requirements are fulfilled. The branding and selling of new seeds is subject to a certain price, and there is little disagreement that such seeds are a commercial product. The subsequent reuse of the seeds after the initial harvest is a more conflicting issue. The granting of patent or plant variety protection – together with specific agreements with the individual purchaser
Kloppenburg and Kleinmann 1988, pp. 281-282, point to the rationality behind maintaining genetic diversity in the field, where the objective was “…not high yield, but consistency of production.”
Food, Biotechnology and Intellectual Property
of the seeds – is a decisive strategy for the biotechnology industry. It is of crucial importance for this industry that the protection extends beyond the initial release of the protected seeds. The strategy adopted with regard to most natural resources relates to conservation and sustainable utilization. Unlike most other resources, in the field of food production, there is an emphasis on improvement of the natural resource, as well as the conservation of these resources. In the FAO Constitution, these two objectives are held together by stating that FAO “…shall promote […] the conservation of natural resources and the adoption of improved methods of agricultural production.” The last decades’ growing emphasis on environmental protection is weakly reflected in the objectives listed in the FAO Constitution. It is reasonable to believe that the principle of sustainable development would be included – if the FAO Constitution had been written within the last 15 years. 2.1.1
Food in a Human Rights Context
The crucial importance of the right to food, as an internationally recognized human right, is a premise for this book. The first mention of the right to food was found in the ‘Economic Bill of Rights’, proposed to the US Congress by President Franklin D. Roosevelt in 1944, three years after his more famous ‘Four freedoms’ speech. Included
See Swanson 2002, pp. 3-4: “Innovative plant varieties […] may be reproduced identically and resold in large quantities. […] So, after only one year of a partial return on its investment, the plant breeder finds itself in competition with a multitude of sellers of its own product.” Article 2(c). The whole of Article 2 reads: The Organization shall promote and, where appropriate, shall recommend national and international action with respect to: (a) scientific, technological, social and economic research relating to nutrition, food and agriculture; (b) the improvement of education and administration relating to nutrition, food and agriculture, and the spread of public knowledge of nutritional and agricultural science and practice; (c) the conservation of natural resources and the adoption of improved methods of agricultural production; (d) the improvement of the processing, marketing and distribution of food and agricultural products; (e) the adoption of policies for the provision of adequate agricultural credit, national and international; (f) the adoption of international policies with respect to agricultural commodity arrangements.
The text of the Constitution and other FAO legal texts are found in FAO 1998a. Speech to the Congress (State of the Union Message) January 11 1944, Cong. Rec 1944, p. 57 (see Peratis 1999, pp. 133-134). Roosevelt said to Congress on January 6, 1941: In the future days which we seek to make secure, we look forward to a world founded upon four essential human freedoms.
15
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Chapter 2
in the Economic Bill of Rights was “the right of every farmer to raise and sell his products at a return which will give him and his family a decent living”. The Committee on Economic, Social and Cultural Rights, states in General Comment No. 12: “…the right to adequate food is indivisibly linked to the inherent dignity of the human person[] and is indispensable for the fulfillment of other human rights enshrined in the International Bill of Human Rights. The right is also inseparable from social justice, requiring the adoption of appropriate economic, environmental and social policies, at both the national and international levels, oriented to the eradication of poverty and the fulfillment of all human rights for all.”10 The core element in the right to food is defined in Article 11.2 as the right to be free from hunger. This emphasis on hunger also implies that the focus in this study will be on accessibility of food, which is the prevailing concern in developing countries. Issues relating to food quality or acceptability, which is a stronger concern in many industrialized countries, will not receive much attention. Everyone is entitled to a right to food. While human rights conventions primarily address the rights of individuals, the rights of ‘peoples’ are also acknowledged. Article 1 common to both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights states the principle of self-determination for all peoples. Paragraph 1.2 says: All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligation arising out of international economic co-operation, based on the principle of mutual benefit and international law. In no case may a people be deprived of its own means of subsistence.
Food must be considered to be a ‘natural resource’, and furthermore as a crucial ‘means of subsistence’. While all people depend on a daily intake of food, adequate access to food is particularly crucial for the most vulnerable and marginalized. 70 per cent of all hungry persons live in rural areas in developing countries, being farmers themselves, most often with small holdings.11 There are enormous challenges for preserving the means of subsistence for small farmers. While Article 1.2 of the Covenant provides The first is freedom of speech and expression – everywhere in the world. The second is freedom of every person to worship God in his own way – everywhere in the world. The third is freedom from want, which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants everywhere in the world. The fourth is freedom from fear, which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor – anywhere in the world.
Preamble to the two Covenants of 1966. 10 General Comment No. 12 on the Right to Adequate Food (UN doc. E/2000/22, pp. 102-110, reprinted in Eide et al. (eds.) 2001, paragraph 4. 11 Pinstrup-Andersen and Cohen 2000a, p. 160.
Food, Biotechnology and Intellectual Property
a framework for the interpretation of the individual human rights recognized in the Covenant, “…its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.”12 Therefore, while the right to self-determination is not a human right to be analyzed independently, this paragraph will be included in the analysis, most particularly in Chapter 12.3.1. There has been an increased acknowledgment of the right to food in the last decade.13 This is expressed, inter alia, in the first paragraph of the 1996 Rome Declaration on World Food Security. In this Declaration all governments “...reaffirm the right of everyone to have access to safe and nutritious food, consistent with the right to adequate food, and the fundamental right of everyone to be free from hunger.”14 As a non-binding declaration, the Rome Declaration does not create new obligations upon States. In order to analyze the right to food and the corresponding obligations, the relevant provisions of the Covenant must be studied in detail. As a basic requirement for human survival, sufficient intake of nutritious and safe food is crucial. In an interpretation of the right to food by the Committee on Economic, Social and Cultural Rights, the following definition is given: “The right to adequate food is realized when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement.”15 The human rights conventions are generally formulated with the individual as the right holder and the State as the duty holder. By ratifying human rights conventions, the State has agreed to be a part of a legally binding treaty, resulting in the State taking upon itself specific obligations towards its inhabitants. For the fulfillment of the right to food, the State shall not primarily serve as a provider. It is more important that the State facilitates an enabling environment for the farmer. Most people exercise the right to food without excessive State interference. Of particular importance for this book is the question whether the State provides access to relevant information on new seeds or new food, and also contributes to such improvements, with the aim of making these improvements widely accessible, through various extension services. Establishment of and support to local seed banks is also of importance. Provided that these efforts on the input side are managed well, the State will not be required to act as a provider of the food as such. In certain situations, however, the direct provision of goods is crucial for the fulfillment of human rights. 12 Human Rights Committee 1984: General Comment No. 12 on Article 1, paragraph 1. 13 Only 20 States applies the term ‘right to food’ in their constitutions (FAO 1998b), and one State (Mali) has adopted a specific legislation on the right to food. Legal recognition nationally of the right to food is addressed in Guideline 7.2 of the “Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security” (FAO 2004b), including “[a]dministrative, quasi-judicial and judicial mechanisms to provide adequate, effective and prompt remedies accessible, in particular, to members of vulnerable groups.” 14 FAO 1996b, paragraph 1. 15 General Comment No. 12, paragraph 6.
17
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Chapter 2
The basic understanding that realization of economic and social human rights always requires an interfering and providing State must thus be modified.16 Regarding the right to food, however, the role of State institutions should be to enable everyone to have proper access to and command over food, as well as means to produce food. 2.1.2
Increased Emphasis on Access to Food
There has been a shift of emphasis from mere availability of food (increased production) to addressing access to food.17 While the major concern relating to food particularly among European consumers is food quality, this is less of a concern among consumers of developing countries.18 Moreover, the analysis will apply a command over food approach.19 Various factors will affect the command over food for the farmer growing the food. For the purpose of this study, it is relevant to emphasize the difference between a situation in which a farmer owns his own seed and a situation in which the farmer is growing protected crops as a licensee, subject to the conditions set by the right holder. Limiting the analysis to the ‘access’ and ‘command’ dimension of food does not imply that self-sufficiency of food should always be preferred.20 The international exchange of germplasm is crucial, and there should be increased efforts for making such germplasm accessible. Responding to the changes in patent and plant varieties protection from 1980, a coalition of developing countries joined forces in order to secure a more coherent policy relating to plant genetic resources.21 Moreover, protected genetic material in the form of seeds, can be beneficial for farmers. The rapid increase in the sowing of transgenic seeds worldwide,22 indicates that there is a positive reception of such crops among many farmers. There are, however, certain consequences of becoming dependent upon a corporation for a farmer’s seed 16 See Eide 1987. 17 See Scoones 2002, pp. 3-11, referring to the shifting paradigms during the last decades. As early as 1989, a book originating from the network of international agricultural research centers linked to CGIAR, which has directed energy towards food production, concluded: “…most threats to poor people’s food access, whether from population growth or from technological change, as operating to reduce entitlements of food, whatever the impact on its availability” (Lipton 1989, p. 401 – emphasis added). 18 The rejection by the authorities of Zimbabwe, Zambia and Mozambique of receiving GM maize as food aid through the World Food Programme in 2002, illustrates that concerns over transgenic seeds are not isolated to industrialized countries. Mozambique and Zimbabwe eventually accepted the food-aid maize, provided that it was milled, to eliminate resowing. 19 See Eide 1987, p. 27. 20 See the ‘food sovereignty’ concept, developed by organizations such as Via Campesina. 21 Mexico was the most active country in the early years within the framework of FAO; for details, see Fowler and Mooney, 1990; see also Fowler 1994. 22 According to numbers presented at <www.isaaa.org>, there have been steady increases in the area growing transgenic crops in both developed and developing countries, with the exception of the years 1999-2000, in which there was no growth in industrialized countries.
Food, Biotechnology and Intellectual Property
supply, with explicit restrictions on the use of the harvest for other uses than consumption. Moreover, the environmental effects of planting such crops are uncertain.23 This study acknowledges the tendency that States facilitate the increased participation of the seed companies in agricultural research through granting intellectual property protection. No consensus can be expected on whether this has been an appropriate strategy. The welfare results of a loyal implementation of TRIPS can only be expected after several years. For the purpose of this study, access and command are identified as two determinants for analyzing whether obligations imposed by TRIPS and obligations imposed by the Covenant can be complied with simultaneously. 2.2
Biotechnology
This section provides an understanding of scientific developments. Technological inventions take place rapidly, and the various types of biotechnology result in new plants. The aim of this section is to identify the prevailing interests relating to the various forms of biotechnology rather than describe technologies as such. 2.2.1
Three Phases of Biotechnologyâ•›24
There are three generations of biotechnological inventions. These three generations also relate to different forms of protection.25 Originally, the improvement of plant genetic resources was a result of many small farmers experimenting and exchanging. This led both to crucial and valuable exchanges between hemispheres and continents, and to a diversity of plant genetic resources used for food and agriculture. Such plants are usually referred to as ‘farmers’ varieties’ or ‘landraces’.
23 See Chapters 8.2.3 and 12.2.2 for more examples. 24 For an easily available source for understanding various biotechnologies, see FAO 2004a, Chapter 2. For FAO reports on biotechnology, see
. 25 In this schematic presentation of the various phases, a fourth phase, the ‘hybridization’ phase is not included. The technique of hybridization involves the crossing of two inbred plant lines into a hybrid, and as a result breeding efforts became more systematic. The seeds of such hybrid plants produced less than the hybrid plants itself, and the farmers became dependent upon purchasing new hybrid seeds. Hybridization thus functions as a form of ‘biological protection’, securing a financial reward for those who develop and provide such seeds. See Jackson 2000 for further details.
19
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Chapter 2
No international system of protection exists for such varieties, but there are intergovernmental discussions on the content of the concept of ‘traditional knowledge’, taking place both in the TRIPS Council26 and in the WIPO.27 The second generation of biotechnological inventions started originally with the research by Louis Pasteur in the 1870s. By the end of the nineteenth century, laboratories at the seed banks began to do more systematic research based on the principles of heredity, and thus the phase of modern plant breeding was introduced. The seed industry was able to produce uniform and distinct ‘plant varieties’, which kept their characteristics under different conditions. Plant breeders are not a homogenous group, and cannot be perceived to share common interests. There is a substantial difference between farmers acting as plant breeders and the plant breeders employed by seed companies. The private plant breeders convinced the authorities to introduce special exclusive protection for plant varieties, called plant breeders’ rights. These rights were developed nationally in the late 1940s and 1950s, and were codified in an international agreement (UPOV Convention) between industrialized States in 1961. Such rights are one category of intellectual property rights, but do not give as exclusive rights as patent rights. The third generation of biotechnological inventions can be traced back to the exploration of the DNA molecule in the 1950s, and then with the revolution in genetic engineering in the 1970s. It was now possible to transfer genes from one organism to another.28 This opened the way for research programs, both by public institutions as well as by private companies, with the aim of modifying the genetic composition of the organisms, in order to improve their characteristics. Private companies, which have been leading in this genetic research,29 are increasingly dependent on patent protection, plant breeders’ rights and other intellectual property protection (trademarks and trade secrets) in order to gain benefits from their substantial research investments.
26 Based on Paragraph 19 of the Declaration from the Forth Ministerial Conference of WTO (WT/MIN(01)/DEC/W/): “We instruct the Council for TRIPS, […] to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments…” 27 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, established according to WIPO General Assembly Resolution 26/6 of 25 August 2000. 28 Kloppenburg 1988, p. 3 lists two dimensions of the new technology. First, they operate at the cellular and molecular level (see p. 203). Second, it is possible to bypass traditional sexual reproduction. 29 But note that private companies account only for approximately 40 per cent of total investments in agricultural research and development (Pardey and Beintema 2001, p. 10 finds that the proportion in 1995 was 34.7 per cent, a share which has increased since then).
Food, Biotechnology and Intellectual Property
2.2.2
Different Actors in Biotechnology and their Attitude towards Intellectual Property Protection
Farming is not only affected by climatic and topographical factors, but also by several important societal actors. The basic aim of alleviating hunger is high on the agenda of all relevant organizations, institutions, communities and companies. In this context, it is crucial to acknowledge the difference between public sector and private sector actors in their relationship with the farming community in both developing and industrialized countries. The private sector pays limited attention to those States where little profit can be made. In a study commissioned by the US Department of Agriculture it is found that the “…incentives for private investments are unlikely to direct large-scale resources toward solving many problems in developing countries.”30 An analysis will be made as to whether the new biotechnology has influenced the relationship between the companies and the national, as well as international agricultural research institutions. There are other actors which should not be ignored, such as local or indigenous communities (having a general negative approach toward new biotechnology31) and intergovernmental organizations (having a general positive approach toward new biotechnology32), but they are not equally important biotechnology actors. Companies: The most fundamental difference between the Green Revolution of the 1960s and the present ‘gene revolution’, is the much stronger role for ‘life science’ companies recently. The Green Revolution was originally limited to maize, wheat and rice, with a crucial role for publicly funded research institutions, in cooperation with private foundations. After the discovery of the modern genetic research in the 1970s, companies have invested immensely in developing new genes and new varieties.33 The development of transgenic crops has also been a priority for traditional chemical companies. Through the purchase of – and heavy investment in – smaller seed companies, these companies presently are the main providers of transgenic crops to both industrialized and developing countries’ markets.34 30 Shoemaker 2001, p. 51. 31 There is an increased acknowledgement that in order for plant breeding efforts to be successful, they should be based on traditional knowledge of plant genetic resources; see PinstrupAndersen and Cohen 2000b, p. 145 32 See FAO 2000 and 2004a, IFAD 2001, UNDP 2001; for UNESCO; see Tawfiq 2004. 33 It was seen in Chapter 1.1 that the private sector now invests more than the public sector in agricultural research in industrialized States. Despite high R&D budgets for the largest companies (Monsanto: 500 million USD in 2003, down from 695 million in 1999; see ‘investor information’ under <www.monsanto.com>; Syngenta: 727 in 2003, down from 760 million in 1999; see ‘research and technology’ under ‘about Syngenta’ at <www.syngenta.com>), it should be noted that the products resulting from this research are primarily adapted to the needs of the commercial farmers, particularly herbicide tolerance products. 34 China is an exception, having a large public GM sector. Pray and Naseem 2003a, p. 23, show public and private GM research in developing and industrialized countries. See also Spillane 1999, p. 27.
21
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Chapter 2
In general, private companies consider plant genetic resources in terms of invention, appropriation, and commercialization, based on rational investment calculations. There is a motivation among the corporations to contribute positively to all the affected stakeholders, as long as this does not affect their business interests. At the same time, an important strategy for the ‘life science’ corporations is to make consumers, or farmers, dependent upon the deliveries and services from the corporation. Seeds sold by the corporation thus have highest yields when matched with other products, inter alia, fertilizers from the same corporation.35 Companies will certainly differ in their strategies for applying for patents. Generally, it is expensive both to apply for and to hold a patent and plant variety certificate.36 Two important considerations relate to the size of the market and the strength of the legal system. As there are costs both for obtaining and holding a patent, the company must be sure that the costs associated with the patent will be justified, either through a commercialization of the patented product, through licensing the use of the patented product, or through restricting the commercial activities of its competitors. Moreover, a company will generally be reluctant to invest in and obtain intellectual property protection in States where there is no effective enforcement of patents. Companies are eager to cooperate with national and international agricultural public research institutions. This will give them both the access to germplasm, new products and a better understanding of the research taking place in these institutions. Few companies have entered into more formalized relationships, however.37 The biotechnology companies claim that they are not depending upon plant genetic resources found in nature or the fields (in situ), and rely upon existing gene banks (ex situ).38 In principle, the companies will demand strict adherence to their intellectual property policies as a precondition for entering into such cooperation with public sector institutions. There are, however, several examples of companies giving their research efforts away for free, given that the crop on which this research is undertaken is not considered to be of sufficient commercial value, with the publication of the mapping of the rice genome as one
35 See Wright 1998, p. 8, addressing the ‘life science’ industry which produces a wide spectrum of products, while the growers “…have an increasingly limited number of suppliers to choose from…” 36 Van Wijk et al. 2003, Annex 2, provides a overview for application fees, examination fees and annual fees, for both patent and plant varieties protection, with annual fees being up to 1000 Euro. 37 One example is the CGIAR membership of Syngenta Foundation for Sustainable Agriculture. 38 Peter Weibull, in a seminar on 19 September 2002, said that seed companies using genetic material, find more than 97 per cent of their material ex situ, and less than three percent in situ. This percentage corresponds to other figures; see Swanson 1996, p. 5, finding that for ‘all crops’, 2.4 per cent of all germplasm used for the development of new varieties are taken from either ‘wild species’ or ‘landraces’ held in situ. (The most important source are ‘commercial cultivars’, providing 81.5 per cent of the germplasm for developing new varieties.)
Food, Biotechnology and Intellectual Property
example. Both Syngenta and Monsanto, under strict conditions,39 have released their findings of the rice genome. International and national agricultural research centers, particularly the Future Harvest Centers of the Consultative Group on International Agricultural Research (CGIAR):40 Traditionally, these Centers have been working for the preservation of germplasm and breeding of plant varieties. While the aim is to benefit the farmers in developing countries, the primary recipients of the germplasm from the Centers are private and public breeders. The Future Harvest Centers are depending on the efforts of these breeders to deliver the improved varieties to the farmers. There are strong and positive effects on agricultural productivity resulting from the efforts at these research Centers.41 The economic effects are also found to be positive, but not equally strong as for the increased productivity.42 Some national research centers promote some kind of plant variety protection in order to have legal protection of the research results.43 Other national centers, and some of the Future Harvest Centers of the CGIAR group, have in general a more restrictive approach regarding the intellectual property protection of their research results.44 There 39 Monsanto is not giving away the results of its rice research, but rather sharing the data with the International Rice Genome Sequencing Project (IRGSP) and other public researchers according to conditions set out in a Multilateral Transfer Agreement (MTA). Under the MTA, institutions accessing the data can only pursue non-commercial research with it and are subject to several conditions: – The institution must regularly inform Monsanto about its attempts to secure IP; – Monsanto has first rights to negotiate a non-exclusive license on the IP; – Monsanto has the right to use in its own research any results obtained by third party researchers. Syngenta has already made it clear that it will restrict access to the genomic map and expects proprietary control over any research carried out with the information. The company's data would be equivalent to a copyrighted newspaper article – publicly available but not free for people to use as they see fit. (Examples quoted from GRAIN 2001). 40 CGIAR is an acronym for Consultative Group on International Agricultural Research, consisting of 15 research centers worldwide, providing the world’s largest collection of plant germplasm. CGIAR was established in 1971, and has also been instrumental in providing advice on agricultural policies in general and on intellectual property protection in particular. The CGIAR secretariat is located in Washington D.C.. 41 Evenson 2003. His findings are contrasted with two ‘counterfactuals’; first, he analyzes what would have happened if there were ‘no crop genetic improvement (CGI) since 1965’; second, he analyzes what would have happened if there were ‘no international agricultural research centers’ (IARC) CGI’. 42 Evenson and Rosengrant 2003, applying the same counterfactuals as Evenson 2003. 43 One example is EMBRAPA, the national breeding institute of Brazil, in which all researchers are obliged to outline how they intend to obtain intellectual property rights protection before starting a research project. 44 In the original 1994 Agreement between CGIAR and FAO, it was confirmed that the designated germplasm are held “in trust for the international community”, and should not be subject to intellectual property rights.
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is a push toward more biotechnology research, including new biotechnology, such as transgenic technologies. The former Director of the International Food Policy Research Institute (IFPRI), now the Chair of the CGIAR’s Science Council, observes that “…there is very little commercial utilization of results from modern biotechnology research in developing countries. As a result, the potential contributions of biotechnology to poverty alleviation and enhanced food security and nutrition in developing countries has received little attention…”45 The Future Harvest Centers are important in providing both appropriate access to plant genetic resources and appropriate guidance in the field of intellectual property rights. Their contribution will be analyzed in Chapters 5.3 and 12.3.2. While there are few claiming that the public sector should not have a role to play in agricultural research,46 there has been a tendency to call for private involvement in the actual provision of seeds. Two authors, in particular, assume that “…public seed firms […] often have a bad image.”47 The main explanation is the lack of adequate seed volumes and an inadequate distribution network. Therefore, “…the relative role of the private sector generally should be expanded and that of the government agency decreased.”48 These observations are compatible with the priorities of leading industrialized countries. The same authors raise concerns over intellectual property protection, in particular in least-developed countries, but assume that as the domestic seed industry matures “…IPR laws could be useful.”49 2.2.3
Traditional Breeders and Modern Breeders
In the discussion on food production, most of the attention is placed on the innovations of the ‘life science’ industry. This book does not aim to compare output or yield resulting from different forms of technology. Other qualities, like nutritional levels or increased resistance against droughts, insects and herbicides, are also interesting. Farmers willing to pay a higher price for seeds produced by transgenic technologies believe that they will be rewarded in the harvest and in the storage. There are, however, three trends that should be observed regarding the introduction of such technologies. First, the main motivation behind the introduction of transgenic crops has been the toleration of herbicides produced by the same company. Second, investment in transgenic research has been directed toward commercially interesting crops, such as soybeans and corn, and non-food crops, such as cotton.50 Third, regarding the possibility to 45 Pinstrup-Andersen and Cohen 2000a, p. 159. 46 See Pray and Naseem 2003a and Pray and Naseem 2003b, reviewing the analysis done on the effective undertaking of agricultural research. 47 Dalrymple and Srivastava 1994, p. 196. The former author works at the USAID Office of Agriculture and the latter at the Agricultural and Rural Development Department of the World Bank. 48 Ibid. p. 198. 49 Ibid, p. 202. 50 Cotton growers are reported to have benefited from Bacillus thuriengensis (Bt) cotton, which has been used in insect spray for decades, but is now possible to insert directly into the plant genes.
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increase the nutritional level through transgenic crops, there is presently no such crop which meets the nutritional requirements.51 For a local farmer, several other factors are also important, including issues of cost, individual and community self-reliance, as well as the forms of protection of the varieties which farmers grow. They tend to be skeptical of the current form of intellectual property protection. The emphasis among representatives of indigenous communities is rather on the human rights of indigenous peoples, the validation of indigenous knowledge, the acknowledgement that indigenous knowledge is an intellectual property though inadequately protected, and the need to implement appropriate legislation to protect indigenous knowledge.52 To further elaborate on the differences between farmers as traditional breeders (‘informal innovators’) and company employees as commercial or modern breeders (‘formal innovators’),53 in very broad terms, the ‘traditional breeders’ are rural and local, but tend to have a more holistic approach. On the other hand, the ‘modern breeders’ are operating with capital, legal support and advanced technological equipment, as well as having a more instrumentalist approach. Furthermore, their motivations and methods certainly differ. Local communities are perhaps better at conserving biodiversity and improving varieties which are better at adapting to the local conditions.54 Conversely, scientific breeders are perhaps better at promoting plant varieties that are higher-yielding independent of the local contexts. The innovative efforts by smallholder farmers in most developing countries must be acknowledged.55 It should not be presumed that there will always be conflicts between the traditional and modern breeders. They can enter into forms of cooperation that are beneficial to both of them. The modern breeders, however, usually possess certain resources which the traditional breeders do not control, and it must be presumed that they pursue different interests. The mediating actor between these interests is the State. The State must make use of its legislative, administrative and enforcing power in order to provide the basis for 51 The unfulfilled promises of ‘Golden rice’ is an example. 52 Indigenous Peoples Biodiversity Network 1996, quoted in Dutfield 2001b, p. 139. 53 This categorization of formal and informal innovators is found in Crucible Group, 1994. However, as the deliberations in WIPO’s Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (GRTKF) has shown reluctance regarding these concepts (see WIPO 2004c, paragraph 16, footnote 25, referring to concerns expressed by five States or groups of States). 54 Fowler 1994, p. 193, observes: “…the genetic diversity of the Third World cannot simply be considered as a “raw material”. […] [They] are improved resources – resources to which value has been added by human creativity and labour. See also Almekinders and Louwars 1999. 55 See Kuyuk 2002 for a presentation of African farmers, who depend mostly on farm-saved and locally exchanged seeds. See also Agrawal 1995, emphasizing the crucial importance of in situ conservation, saying that emphasis on ex situ collections benefits the ‘scientific investigator’ and the ‘bureaucratic procedures’ (p. 428) or simply benefits the ‘richer, more powerful constituencies’ (p. 432). He admits that ex situ preservation is ‘technically the easiest, and politically, the most convenient’ (p. 427).
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development and sustainable use of the resources. To which extent a human rights approach might be used to reconcile the different interests is an issue that will be discussed in Chapters 5, 6 and 12, and will not be definitively answered here. This study will analyze whether the relevant provisions of the International Covenant on Economic, Social and Cultural Rights might provide some guidance in identifying the right balance between the efforts of the different actors relating to plant genetic resources. Furthermore, it is important to consider the role of the State in facilitating the breeding and innovation efforts of any of these actors, as well as the exchange of the germplasm crucial for further development of new crops. Modern breeding and research aims at exclusive protection, which can directly affect farmers, as observed by a central person within the CGIAR: “Research, and in particular biological research, today is very likely to be patented, and thus may not benefit the poor in the developing countries.” 56 Breeding efforts undertaken by the traditional breeders are usually not directly applicable for any kind of commercial production. On the other hand, the research efforts by the modern breeders are directed primarily at developing products which can be subject to both commercialization and intellectual property protection. The rewards in the patent system are channeled toward those undertaking the applied research, while there is a lack of operative mechanisms for rewarding those undertaking the conservation and initial breeding efforts.57 2.2.4
Strong Disagreements Regarding New Biotechnology
This part of the study does not intend to test the presumption that increased food production is a crucial element for the fulfillment of the right to food. The disagreement is basically between those arguing for increased food production, and those saying that there is enough food available, but the problem lies in the lack of equitable distribution, as well as over-consumption in the North. Although none of these facts should disqualify the other, this study will focus on measures relating to production, and how to ensure a more effective distribution of this production. The substantially different attitudes regarding new biotechnology should be acknowledged. While increased application of new biotechnology might increase food production, the relationship is more complicated. The effects of increased use of new biotechnology on the right to food cannot be discussed in isolation, but must also take into account the tendency that most biotechnology applications are protected by patents or plant breeders’ rights. As the focus of this study is the enjoyment of the right to food for the most food-insecure, the effects of new biotechnology should be analyzed specifically for these groups.
56 Pinstrup-Andersen, 2002. Pinstrup-Andersen was, until 2002, Director General at IFPRI, and is presently the Chair of the CGIAR Science Council. 57 Provisions on benefit-sharing are found in Article 15 of the Convention on Biological Diversity (CBD), concretized in the Bonn Guidelines (COP Decision VI/24), and Article 13 of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).
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On the one hand, there seems to be general agreement that the breeding efforts undertaken in the past decades have been instrumental in increasing the yields. Some have a generally positive assessment of the intellectual property rights protecting such breeding.58 On the other hand, there is no clear evidence of increased yields resulting from the introduction of transgenic crops.59 In general, there is much uncertainty regarding the effects of the new biotechnology. The first formal endorsement of biotechnology in the context of food resulting from intergovernmental negotiations was the adoption of the Declaration of the World Food Summit: five years later in 2002: “We call on the FAO, in conjunction with the CGIAR and other international research institutes, to advance agricultural research and research into new technologies, including biotechnology. The introduction of tried and tested new technologies including biotechnology should be accomplished in a safe manner and adapted to local conditions to help improve agricultural productivity in developing countries. We are committed to study, share and facilitate the responsible use of biotechnology in addressing development needs.”60 This must be considered as a positive, but cautious position regarding new biotechnology. A general conclusion on the various issues relating to biotechnology is that there is general agreement on the importance of ‘standard’ biotechnology. With regard to the modern, transgenic biotechnology, this represents a field where the opinions are more diverse. Hence, there are also stronger tensions, particularly between traditional and modern breeders, but to some extent also between States. 2.3
The Expansion of the Intellectual Property Protection System
Patents and plant breeders’ rights will be the primary focus of this study. In short, the holder of a patent can exclude others from the use of the biotechnological invention for twenty years from the date of the patent application (priority date). Plant breeders’ rights give exclusive rights to the breeder of a plant variety, and the protection for most varieties lasts twenty years from the grant of the certificate.61 This study will analyze the central characteristics and the different interests prevailing with regard to these forms of protection, as well as the recognized justifications for such protection. While this study will analyze only these two legal protection devices, protection made possible through technical or biological means will also be examined.
58 See Blakeney et al. 1999 and Beadle 2000. 59 Lipton 2001, p. 839, finds that the few examples of transgenic crops resulting in higher yields, result from public sector research; see also Tawfiq 2004, p. 12, who does find that on-farm production costs might have been lowered, and Alston and Venner 2001, p. 31, Barton 1995, p. 614, and Wright 1998. 60 FAO 2002d, paragraph 25. 61 In the 1991 Act of the UPOV Convention, the protection terms for trees and wines are 25 years.
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2.3.1
A General Outline of Patent and Plant Variety Protection
The basic understanding of intellectual property rights is that the person who made an original and creative contribution shall be rewarded for this contribution. Regarding patents and plant breeders’ rights, the right-holders are given a time-limited exclusive right to prevent others from making use of this invention or plant variety for commercial purposes. One requirement is that the original contribution shall be described in a manner that is sufficiently clear, in order to be carried out by a skilled person, allowing others to learn from this original contribution. Another motivation behind the intellectual property system, more specifically the patent system, is to foster innovativeness, the transfer of technology, and the orderly introduction of new products on the market for the benefit of society. More specifically, the following purposes of patent protection are identified:62 – ‘invention motivation’: reward – ‘induce commercialization’: prospect – ‘information disclosure’: trade secret avoidance. In sum, these focus on the general economic effects. If it can be proven that patent and plant variety protection results in such positive economic effects, in both industrialized and agrarian-based developing countries, the introduction of such protection should be promoted. It must be stated, however, that there is a general lack of convincing arguments that strong patent protection actually foster economic growth and diffusion of new technology.63 The most comprehensive study on the effects of intellectual property protection finds that a GDP/capita level of 7750 US dollars is generally required if the country in question can be expected to benefit from a stronger patent system.64 The author further states that TRIPS contributes to “…accelerate the introduction of higher [intellectual property] standards into regions that would not ordinarily be expected to adopt them.”65 Patents: In short, a patent is a right to exclude commercial use by others of one’s invention. A patent does not necessarily imply a right to use the invention oneself. Moreover, there are no requirements in modern patent laws to ‘work’ a patent, in other words, that the patented product shall be produced.
62 These are the common purposes identified by Mazzoleni and Nelson 1998, pp 274-280, D’Amato and Estelle Long (eds.) 1997, pp 18-19, and Machlup and Penrose 1950, p. 10. For an alternative purpose, see Pires de Carvalho 2005, pp. 19-24. 63 See Mazzoleni and Nelson 1998, Crucible Group 2001a, Stenvik 2001, pp. 153-154, Kinsella 2001, p. 14, and Dutfield 2001a, p. 43. 64 Maskus 2000, p. 108. 65 Ibid, p. 144.
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Patent rights, more than other intellectual property rights, are by their very nature uncertain rights.66 A patent which is granted can subsequently be challenged and potentially revoked. The condition for revoking a patent is that the patentability requirements were not fulfilled when the patent was granted. Usually, this is because the claimed invention belonged to the ‘prior art’, or that it did not represent an inventive step.67 Forfeiture of a patent is possible due to acts taking place after the patent was granted, such as abuse of the right or failure to pay the annual fees.68 The word patent comes from the Latin term, ‘patere’, which means ‘to disclose’.69 A patent is the right granted to the patent holder, on the basis of the patent claims. In the patent claims, the applicant identifies the scope of what is invented, including also the objects or organisms into which the invention is incorporated. The patent claims must be based on the written disclosure of the invention, as well as drawings, and possible deposits of a micro-organism.70 Every inventor, having fulfilled the substantive requirements, as well as the procedural requirements, is entitled to patent protection. Hence, the granting of a patent is the end result of the examination of the patent claims. A patent has traditionally been seen as a contract between the inventor and the society allowing for the exclusive rights of commercial utilization,71 but this ‘contract theory’ is currently less relevant as a justification for patents. Nevertheless, the knowledge, as given in the description and claims, is made public. National patent laws, as well as the European Patent Convention, define the allowable scope of the patent protection, and the patent is only valid in the State where the patent has been granted. The patent examination considers the description of the invention, and decides if the invention is eligible for protection, and which of the patent claims fulfill the legal criteria for patent protection. An inventor who has made an invention that can be described in a sufficiently clear manner, and where the requirements of novelty (not described or exhibited before), inventive step (not obvious for a person skilled in
66 Allison and Lemley 1998, p. 205-206, find that in the USA that in litigated cases that actually result in a final judgment on validity, issued patents are held invalid 46 per cent of the cases. 67 One famous example of a patent that was later revoked by the US Patent and Trademark Office (USPTO) is the quinoa (patent US 5.304.718), granted to two professors at Colorado State University. One traditional quinoa variety, apelawa, is the subject of this patent, based on the observation that this variety’s male sterile cytoplasm is key to developing hybrid quinoa. The patent claims any quinoa crossed with male sterile apelawa plants. Quinoa has been used as a food crop by the people of the Andes region for centuries, and that patent caused international protests that later led to the withdrawal of the patent in 1999. 68 TRIPS Article 32. 69 More is found in Stenvik 2001, Introductory Chapter. 70 The WIPO Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure and Regulations was adopted 28 April 1977, and has 59 ratifying States. 71 Licensing implies that these exclusive rights are transferred to the licensee.
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the art) and industrial applicability (not merely a theoretical or conceptual construction) apply is entitled to patent protection.72 Plant varieties:73 Related to these criteria for protection of patents are the criteria for protection of plant varieties, which traditionally have not been eligible for patent protection, except in countries such US and Japan. The requirements for being granted the so-called plant breeders’ rights are that the plant variety fulfills the tests of novelty, distinctiveness (clearly distinguishable in one or more important characteristics), uniformity (sufficiently uniform in its relevant characteristics), and stability (the relevant characteristics remain unchanged).74 The grant of plant variety protection implies that the commercial use of the plant variety is subject to the conditions set by the right holder. Compared to the TRIPS Agreement, the UPOV Convention is more specific and contains specific and exhaustive conditions for the nullity and cancellation (revocation or forfeiture) of plant breeders’ rights.75 In most countries, the same public office is responsible both for granting patent rights, as well as other intellectual property rights, such as trademarks. Plant breeders’ rights are usually granted by a separate office under the Ministry for Agriculture. Enforcement and exceptions: The State is responsible for establishing an administrative system where patent rights and other intellectual property rights are granted and subsequently enforced. Administrative and judicial appeal mechanisms are required in order to solve disputes regarding intellectual property protection. The establishment of an administrative system might be excessively costly for many developing countries, both in terms of finance and manpower. In order to reduce the administrative costs, the examination undertaken by the patent offices of other States can be adopted. It is also possible to cooperate with neighboring States. Intellectual property application fees and annual fees in order to maintain the right might, however, represent income in subsequent years. While there are costs involved in the patent or plant variety systems, it is even more costly to challenge decisions made, particularly if the case is solved by the court and not administratively. Within a certain period after the patent or plant variety right is made public, anyone can present a challenge to its grant. The case will then be solved admin-
72 More on the patentability criteria are found in Stenvik 2001 and D’Amato and Estelle Long 1997. 73 Plant varieties, which is a biological concept used to categorize plant species with ‘distinct morphological characters’, is thus regulated in international treaties. Neither category of plants, operating at a higher or lower level of common characteristics, is subject to the same legal status. For animals, the concept ‘animal variety’ is not subject to similar international regulation. For a more in-depth analysis of the term ‘plant variety’, see Bryde 2004. 74 Tansey 1999, p. 10. See also Crucible Group 2001a, p. 152. 75 UPOV 1978 Article 10 (nullity and forfeiture); UPOV 1991, Article 21 (nullity) and 22 (cancellation).
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istratively. Regarding the patent system’s functioning in industrialized countries, there are high costs associated with patent challenges or litigations.76 The granting of a patent or a plant breeders’ rights has a defensive character, in order to prevent others from benefiting from another’s efforts. A patent excludes others from using commercially, producing, marketing, selling or importing77 such products. Experimenting on the protected object is generally allowed, but under patent law there is a strict requirement that this is done for non-commercial purposes. Patent and plant variety legislation, including the TRIPS agreement,78 allows under certain circumstances for the use of a patented product without the authorization of the patent holder. Usually, there are rather strict requirements for the use of this option, including that compensation shall be paid to the patent holder. Similar exceptions are found in legislation on plant breeders’ rights.79 Plant varieties legislation explicitly allows for limited re-use of protected material (farmers’ privilege) and research on such material (breeders’ exemption), on which more information will be given in Chapter 9. It should also be observed that the principles underpinning the intellectual property system, more specifically the patent system, have gradually changed from serving the interests of the people with the original idea, to being perceived as serving the interests of the actors operating in the market, and hence the economies in general.80 Moreover, the initial emphasis on patenting as a precondition for diffusion has been weakened.81 76 On costs of a patent re-examination (US) or opposition (EPO), as well as litigations, see Nuffield Council on Bioethics 2002, p. 18. 77 Note that under the 1978 Act of the UPOV Convention, import and export, as well as storing, do not fall within the scope of plant breeders’ rights. 78 TRIPS Article 31. 79 UPOV 1978 Article 9; UPOV 1991 Article 17. 80 The issue of whether or not the intellectual property system actually increases the general welfare in an economy is a contentious issue. Even though economic growth might be proven to be an outcome of a strong intellectual property system, this extra income tends to benefit the corporate interests. The most detailed study of which States benefit the most, was undertaken by Maskus 2000, p. 184. He finds that six developed countries (USA, Germany, France, Italy, Sweden and Switzerland) have positive license transfers from TRIPS-induced strengthening of patent laws, with the USA receiving more than double as much than the other countries (5760 million USD). For the other countries, there has been a net loss from the strengthened patent laws. It therefore seems correct to state that a stronger patent system does not – at least in the short term – contribute to greater international equity. Whether or not intellectual property law might serve as an incentive for an increase in foreign investments, and whether this will actually contribute positively to the economy, is beyond the scope of this book. 81 Maskus 2001, p. 134, finds that “…the patent system has shifted away from encouraging diffusion and more toward protecting fundamental technologies.” Note, however, that Robinson 1971, p. 87, makes an interesting observation with regard to the justification of the patent system: “…by slowing down the diffusion of technical progress it ensures that there will be more progress to diffuse.” She also observes that the patent system “…is bound to produce negative results in particular instances.”
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While large and technologically advanced economies will undoubtedly benefit the most, there are also many developing countries that see a strong intellectual property system as key in attracting capital and new technology.82 2.3.2
Intellectual Property Protection in Various Phases
Intellectual property protection has developed and expanded gradually. One observer notes that “[t]he strongly expansionary nature of intellectual property systems shows no sign of changing.”83 There have also been changes in the intellectual property rights system, particularly patent and plant variety protection. The origin and development of patent protection: The patent system can be dated back to the early Renaissance. The Venetian city state approved the first patent law in 1474. In England, the passing of the 1623 ‘Statute of Monopoly’ declared monopolies illegal, except for “…the true and first inventor or inventors”.84 The conditions were that “…they be not contrary to the law, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade or generally inconvenient”.85 This was merely a registration system of inventions which were novel in England. At this time, the term ‘privileges’ was applied, while the term ‘right’ was only introduced later. The US and French constitutions in the late eighteenth century were the first to apply the term ‘rights’, as the term ‘privilege’ was generally discredited during the popular uprisings against the establishment in the second half of this century.86 The granting of exclusive rights should serve the purpose of contributing to the public benefit, as illustrated by the following wording in the US Constitution: “To promote the progress of science and useful arts by securing for limited times to Authors and Inventors the exclusive right to their respective writings and discoveries.”â•›87 Parallel to the introduction of the term ‘right’ is the radically new notion that these rights were understood as individual property.88 The first modern legislation is the US Patent Act of 1836, whereby a comprehensive examination was required before a patent was granted. Already at this stage, however, 82 This relationship between patent protection and foreign direct investment is disputed, but Maskus 2001, pp. 133-134, finds that strong protection of intellectual property rights plays a significant role for foreign direct investments, particularly for sectors with high potentials for imitation and for middle-income developing countries. 83 Drahos 1998, p. 13. 84 1623 English Statute of Monopolies Provision 6 (c). 85 Ibid, Provision 6 (e). 86 Machlup and Penrose 1950. Pires de Carvalho 2005 finds that the privileges only contained a permission to carry out a certain skill or trade, and finds that privileges are ‘primitive’ (p. 195). 87 Art. 1, Par. 8, Section 8, The Constitution of the United States, adopted 1787, Washington€D.C.: U.S. Government Printing Office, 1985. 88 Cornides 2004, p. 149 and p. 167. See also Pires de Carvalho 2005, p. 15, referring to “…the revolutionary notion [emerging in the 1700s] that the rights generated by patents were property rights.”
Food, Biotechnology and Intellectual Property
there were differences between the common law tradition in countries such as England and the USA on the one hand, and the civil law tradition in Continental Europe, on the other. France built on the natural law tradition, by referring to “the right of man”. England was more instrumentalist, by requiring that the patent should be worked a certain period after being granted. In general, the civil law countries tended to emphasize the moral dimension of protection, while for the common law countries, the economic motivation was important. The fact that the legislation had a limited territorial scope and was instrumental in industrial development strategies, did not prevent States from entering into bilateral agreements. In 1883, there were 69 bilateral agreements regulating industrial property rights.89 These agreements were based on reciprocity and national treatment, implying that the same treatment shall be given to foreigners as to nationals. The time had come for more comprehensive international multilateral agreements. Intellectual property rights were regulated early in international conventions. For almost one hundred years, the two main conventions were the Paris Convention for the Protection of Industrial Property (first version 1883, last revision 1967) and the Bern Convention for the Protection of Literary and Artistic Work (first version 1886, last revision 1971). Both the Paris and the Berne conventions were administered by United International Bureaux for the Protection of Intellectual Property (BIRPI). BIRPI was founded in 1893, with the merging of the two secretariats of the Paris and Berne conventions, and changed its name to World Intellectual Property Organization (WIPO) and became a specialized agency of the UN in 1974. It was possible for States to deviate from the standard requirements found in these two conventions, requirements which were not very demanding for the State parties. The Netherlands and Switzerland both successfully managed their industrial development without industrial property protection. Japan also developed rapidly by copying inventions from the USA and Europe. An attempted revision of the Paris Convention in the early 1980s failed due to conflicting interests between the USA and developing countries, especially on the issue of compulsory licensing.90 As the attempts to negotiate a new Paris Convention failed, and as there was a recognition of weaknesses in the international system for patent protection,91 a pressure emerged in industrialized countries to make use of the opportunities in the coming GATT-negotiations launched at the Ministerial Conference in Punta del Este in Uruguay in 1986.92 The original purpose was to regulate ‘international trade in 89 Ladas 1975, p. 43. 90 Compulsory licensing can be an option if the patent holder does not “work the patent”, a situation when the patent holder does not utilize the exclusive right to commercialize a patented product, and by this make it available. A decision to grant compulsory licensing also implies that the patent holder shall be compensated as the issuing of compulsory license impacts on the possibilities to exercise the exclusive right. 91 See Beier 1984, p. 14: “…the international protection of intellectual property finds itself in a difficult, fully altered situation. It is no longer on the advance, but has taken up a defensive position.” 92 GATT 1986: Ministerial Declaration (No 86-1572), 20 September 1986.
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counterfeit goods’, but when the GATT’s Trade Negotiations Committee met in 1989, the term ‘adequate standards’ was introduced,93 which paved the way for the introduction of substantive regulation of both existing and new fields of intellectual property rights in the TRIPS Agreement, as well as to include all fields of technology. Many sectors in these countries expressed the need for a more standardized intellectual property protection system.94 Only one year before the GATT Punta del Este Declaration, the first patent on a multicellular organism had been granted in the USA.95 New treaties have been negotiated under the auspices of WIPO.96 The Patent Cooperation Treaty (PCT) was adopted in 1971,97 and the Patent Law Treaty (PLT) in 2000. The latter regulates patent application procedures. During the negotiations of the PLT, several aspects relating to provisions in the Convention on Biological Diversity (CBD) were raised by developing States. They wanted both a certificate on country of origin, as well as a proof of prior informed consent (PIC) on the genetic material or traditional knowledge to be the basis of a subsequent patent application. This was rejected by the industrialized countries, as they understood this to be an issue of substance, not of procedure. Substantial issues have been subject to negotiations within the framework of the Substantive Patent Law Treaty (SPLT), but it is yet uncertain whether there will be any outcome – in the form of a treaty – from these negotiations.98 The origin and development of plant variety protection: In the 1950s, the industrialized countries agreed that there was a need to protect the new plant varieties that had been produced as a result of plant breeding. Since plant varieties are reproducing themselves, there was an understanding that the patent system was not appropriate, and was therefore not endorsed by the breeders and their international association.99 Alternative forms of protection were therefore explored.
93 GATT 1989a, paragraph 4 (b). 94 Analyses of the actors and processes can be found in Matthews 2002, Sell 2003 and Dutfield 2003b, the latter with a particular emphasis on the role of the life science industry. 95 Ex parte Hibberd, 227 USPQ 443, by a 1985 Board of Appeals decision. Asexually reproduced plants had already been granted for half a century in accordance with the 1930 Plant Protection Act 96 For an analysis of the WIPO’s ‘patent agenda’, see Sisule, F. M. and Dutfield, G 2003: Multilateral agreements and a TRIPS-plus world: The World Intellectual Property Organisation (WIPO); see: <www.geneva.quno.info/pdf/WIPO(A4)final0304.pdf>. 97 The PCT provides for the filing of international applications for patent protection in accordance with Article 3.1 and Article 8.1, the latter establishing the priority of this application by a declaration. 98 South Centre 2004, p. 500. 99 For a good overview of the drafting history of the UPOV Convention, see Dutfield 2003b, especially pp. 185-187, and Blakeney 2003, both identifying two main actors, ASSINSEL (International Association of Plant Breeders for the Protection of Plant Varieties – now ISF) and AIPPI (International Association for the Protection of Industrial Property).
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At this stage, very few States had national legislation in place.100 The original Convention, adopted in 1961, and entering into force in 1968, started with only six signatory States. The national legislation has to be in conformity with the Convention before the State can be a party to the UPOV Convention. Currently, only the most recent Act of the UPOV Convention (1991 Act) is available for new State parties, but the 1978 Act of the UPOV Convention will also be analyzed, as UPOV 1991 has more rigorous standards for protection and is potentially less appropriate for developing countries with many farmers and few breeders. During these negotiations, the institution to coordinate and supervise national implementation was also identified. A ‘union’ (Union internationale pour la protection des obtentions végétales - UPOV) was established. The institutional basis of the UPOV was further strengthened in 1967, through common directorship and location with WIPO (World Intellectual Property Organization). UPOV still remains formally outside of the UN system. In the TRIPS negotiations, the seed industry in developing countries considered the lack of legislation on – and legal enforcement of – plant breeders’ rights in most developing countries to be a reason for concern. In 1988, there were 55 countries that explicitly excluded plant breeders’ rights from their national legislation.101 While many industrialized States wanted an explicit reference to the UPOV Convention in the TRIPS Agreement, this was rejected by the developing countries. The outcome therefore became the compromise text of ‘an effective sui generis system’ for plant variety protection, which will be addressed in Chapter 9. 2.3.3
Metaperspectives on Patent and Plant Variety Rights
All property entitlements constitute relations between persons.102 Such relations operate differently for intellectual property rights and material property rights. Tangible property can be identified by physical limits, such as fences. Intellectual property rights are identified by publications that list new rights, issued by the patent or plant variety rights offices, and by subsequent enforcement of the rights. The granting of patent rights is frequently contested, and the borders are often unclear. The courts have been challenged to decide both issues of patentability (legal re-
100 In some countries, such as the USA, the Plant Patent Act from 1930 protected only asexually produced plants, and only with the Plant Variety Patent Act of 1971 did the USA bring their legislation in conformity with UPOV. 101 Lesser, et al. 2000, p. 5. 102 Drahos 1996, p. 19.
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quirements)103 and patent breadth (what shall be protected by the patent). Particularly regarding biotechnology, there is disagreement on what is patentable.104 Property rights are considered to be part of the ‘International Bill of Human Rights’,105 and are considered as civil rights, which also includes the right to life and freedom. Property rights were among the first human rights to be acknowledged in the western world. Not only natural persons (individuals), but also legal persons (corporations) can have a legitimate human rights basis for property claims. Intellectual property rights originated several hundred years ago. Intellectual property rights are not considered to belong to the ‘natural law’ tradition, unlike other property rights.106 These rights (also referred to as ‘authors rights’), are included in the International Bill of Human Rights.107 These rights, as opposed to material property rights, were only recognized to be human rights at a very late stage,108 and categorized
103 The Canadian Supreme Court, considering the patentability of the oncomouse, which had previously been protected by patent in both Europe and the USA, decided on 5 December 2002, with a 5-4 majority, that the oncomouse was not eligible for patent as “…the Patent Act did not apply to higher life forms…” (Harvard College v. Canada (Commissioner of Patents, 2002 SCC 76, paragraph 206). The Supreme Court also observed the particularities of plants, having the ability of self-propagation (paragraph 204). 104 It is generally held that a gene in a chromosome is not patentable subject matter, while an isolated gene that encodes for a protein may be patentable (on gene and DNA patenting, see Nuffield Council on Bioethics 2002, pp. 27-28). See also decision by EPO in V0008/94 (Howard Florey Institute/ Green Group), paragraph 5.1: “…if a substance found in nature has first to be isolated from its surroundings and a process for obtaining it is developed, that process is patentable. Moreover, if this substance can be properly characterised by its structure and it is new in the absolute sense of having no previously recognised existence, then the substance per se may be patentable” (emphasis added). Plants developed by traditional breeding have now been recognized as qualifying for patent protection in a decision by the US Supreme Court (J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l., Inc., 534 U.S. 124 (2001)). 105 The Universal Declaration of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights (1966) and International Covenant on Civil and Political Rights (1966), are considered as constituting the International Bill of Human Rights. Property rights are included in Article 17 of the Universal Declaration, but are not included in the two covenants, due to the objections by the former communist States. 106 See Brush 2001, p. 156: “Of the many different forms of property, intellectual property provides one of the clearer examples of property as a social construct rather than a natural right.” 107 This right is recognized in Article 27(2) of the Universal Declaration on Human Rights and Article 15.1(c) of the International Covenant on Economic, Social and Cultural Rights. 108 The interesting drafting history will be given in Chapter 5.
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as cultural rights.109 As with property claims, legal persons can also have a legitimate human rights basis for their intellectual property claims.110 A legal or natural person who has his entitlement protected by the granting of a specific right must be understood to have the consent of the society to exercise his rights exclusively, and to exclude others from use without the holder’s consent – until the right expires. There are different views on whether exclusion of others from the good is not necessarily negative. On the one hand, it is held that such exclusion strategy could also be a way to preserve the good.111 An opposing concern, that too many and overlapping patent claims leads to irrational utilization of resources, has later been presented under the heading ‘tragedy of the anticommons’.112 Some find that the patent system understood as ‘property in knowledge’ is a form of enclosure of what used to be in the public domain.113 Others, while not agreeing with this, find that the use of concepts in patent law relating to private rights underscores the character of patents as primarily public privileges, granted with the intention of serving the public interest.114 Only some intellectual property is recognized. Of particular relevance for the purpose of this book is the lack of recognition in present intellectual property law of the intellectual property of local and indigenous peoples in developing countries. Much of the traditional breeding is not subject to any exclusive protection, as this traditional breeding is not found to meet the legal requirements under patent and plant variety protection. This book will analyze whether alternative forms of intellectual property protection might be relevant for protecting this intellectual property, and whether intellectual property protection systems can serve the specific needs of local and indigenous communities.115 To understand intellectual property rights, one must distinguish between the intellectual property itself, and the object or process to which the intellectual property relates. The essential element in patent law is the new and applicable knowledge described in the patent claim. As patent law recognizes both product patents and process patents, the invention described in the patent claim must necessarily be applied to an object or a process, 109 It is important to emphasize that one should overestimate such categorization of the different human rights, as all human rights are “…universal, indivisible and interdependent and interrelated,” according to paragraph 5 of the Vienna Declaration of Human Rights of 1993. One can also argue that ‘the right to enjoy the material interests resulting from artistic, literary and scientific production’ (Article 15.1(c) of the Covenant) are economic rights, relating to the right to work for inventors, artists and writers. 110 See Chapter 6.1.4 for two cases under the European human rights system. 111 See Hardin 1968. His ‘tragedy of the commons’ approach explains the consequence of a common management system. He argues that a situation without proprietary rights will lead to overexploitation. 112 Heller and Eisenberg 1998, p. 698-701. 113 May 2000. 114 Crespi 1988, p. 21, and IPR Commission 2002, p. 6. During the 1700s, the term ‘privilege’ became discredited, while the term ‘right’ gained popularity and legitimacy; see Machlup and Penrose 1950. 115 See, inter alia, Chapters 6.1.3 and 12.3.2
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giving any object certain predictable characteristics. The important distinction is that the object of the right is non-tangible, while the object to which the right relates is tangible. Considering particular improvements to plant genetic resources, the knowledge relates to the reproduction of a plant or a plant variety with certain amended qualities. This knowledge must relate to the genetic composition or germplasm of the plant (genotype), and the protection can apply to all physical plants containing this genetic composition (phenotype).116 Traditional breeding, giving rise to plant variety protection, will normally result in off-spring with improved qualities, and the varieties are distinguishable by their phenotype. Patent laws of industrialized States say that the patent protection of a genetic invention also extends to organisms into which the patented gene is incorporated, provided that the new genetic functions are expressed in this organism.117 This is not a requirement in TRIPS, and a WTO member State is not required to extend patent protection to plants. While there are highly diverse opinions on the protection of plants, such protection is important for those who develop new biotechnology.118 The improvement or modification of the genetic composition of a plant will, under normal circumstances, also apply to subsequent off-spring. The genes also keep their basic qualities in the subsequent generations. Compared to other patented objects, plants with the ability to self-propagate represent a particular challenge, particularly as some plants with patented genes might have traits which make them dominant over naturally occurring plants. Therefore, they might spread uncontrolled.119 The crucial issue is thus how the company’s ownership, arising from patent or plant variety protection, is exercised on these subsequent offspring.120 116 In this context, it must be noted that the right holder does not own the plant per se, and the harvest belongs to the farmer. The exclusive rights can extend to the new genetic composition (germplasm), implying that the right holder has the right to prevent propagation, and can also set conditions on reproduction (in some jurisdictions), but this is not required by TRIPS. 117 See Monsanto Canada Inc. v. Schmeiser (2004 SCC 34), paragraphs 76-78, in particular paragraph 78 (‘patented part is a significant or important component’). See also Article 9 of the Directive 98/44/EC on the legal protection of biotechnological inventions. Contrarily, Busch 2002, p. 138, holds that “…the right to a patent could not be more extensive than his invention” implying that the patent scope should extend only to the “…actual improvement.” Currently, however, patent protection could also extend to plants in which a protected gene is incorporated. 118 See Idris 2004, p. 126, emphasizing that “biotechnology inventions […] can easily be copied because of the ability of biological material to reproduce.” 119 The Schmeiser case (see above) is about such transgenic plants which has a patented gene incorporated, and then spread, resulting in a Supreme Court decision on patent infringement. 120 The purchasers of Monsanto seed – particularly in the USA and Canada – receive the following text with the invoice: The Purchaser agrees as follows: 1) To use the seed containing Monsanto gene technologies solely for planting a single commercial crop;
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2.3.4
Justifications for Intellectual Property Protection
Property rights and intellectual property rights “…do not just emerge… [but] are constructed to serve particular interests.”121 How are intellectual property rights, more particularly patent rights, justified? In order to analyze this, references will be made to philosophers who have been particularly important, particularly John Locke and Robert Nozick, the latter seeking to address some of the concerns not addressed by Locke. These philosophies do not fulfill the requirements for theory building. They are assumed, however, to have normative and descriptive relevance for the purpose of this book, and have a general scope, relating to property and wealth in all countries. There are two main traditions of justifying intellectual property rights. First, the person who has undertaken labor should be rewarded for the efforts. This represents the material dimension of intellectual property rights. Second, the efforts of the person result in products that represent an expression of the self. This idea, which was originally developed by Kant and Hegel,122 represent the moral dimension of intellectual property rights.123 It will be argued that the approach of viewing intellectual property rights as legitimate because they represent an expression of the self is not relevant for the purpose of this study. The expression of the self is better applied to artistic and literary expressions related to copyrights, in addition to certain forms of patent rights, where the individual contribution is substantial and clearly defined. Modern plant breeding and genetic engineering, undertaken through multinational research programs or companies, does not share these characteristics. It will therefore be examined whether the labor theory, as it has been justified by Locke and subsequently by others, provides a legitimate basis for identifying ownership. Locke’s justification of property rights is based on examples of the land and what is
2) 3) 4) 5)
Not to supply any of this seed to any other person or entity for planting, and not to save any crop produced from this seed for replanting, or supply seed produced from this seed to anyone for replanting; Neither to use this seed nor to provide it to anyone else to use for crop breeding, research, generation of herbicide registration data, or seed production; To use in Roundup Ready crops only a Roundup brand or other herbicide which has been approved for use and received a label for use in the particular Roundup Ready crop by all required governmental agencies; To acquire seed containing these gene technologies only from a seed company with required technology license(s) from Monsanto and to pay the applicable Technology Fee for the particular product being purchased. See: <www.ssu.missouri.edu/faculty/SMatthews/monsanto_technology_agreement_2002.htm>.
121 May 2000, p. 18. 122 For interesting analyses of this more spiritual or “self-development” approach, see Drahos 1996, May, 2000 and Stenvik 2001. 123 Note also that while both the moral and material interests are recognized in Article 15.1(c) of the International Covenant on Economic, Social and Cultural Rights, only the commercial, trade-related aspects of intellectual property rights are recognized in TRIPS.
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grown on the land. His examples of types of labor relate to material property, not intellectual efforts relating to intellectual property.124 Among the advocates for intellectual property protection, John Locke, as the ‘father of political liberalism’, has been assigned a very important role.125 The Two Treatises of Government has been called “The Bible of Liberalism”.126 Is the influence by John Locke on subsequent developments in intellectual property rights – more specifically patent rights – justified, based on what he actually said in his writings? This question will be answered by analyzing the central arguments presented by Locke himself. In Part II of this book, Locke elaborated on the labor theory in the chapter ‘Property’. Through the presumption of the role of labor, he discussed when a property claim is legitimate. First, arguments are presented for why property is established: 1. God has given the world to Mankind in common.127 2. Every man has a property in his own person.128 3. The labor of his body and the work of his hands are properly his.129 4. Whatsoever he moves out of the state that nature has provided, by mixing his labor with it, he thereby makes it his property.130 Through this reasoning, Locke justified why labor leads to title. One of his basic comparisons was the uncultivated lands of the Americas, which were compared to the intensive tillage in England.131 The crucial question is in which way such labor can be the basis for establishing property rights. It is something different to own what is harvested from 124 Criticisms can be raised against applying the principles developed by Locke for justifying material property for the purpose of justifying immaterial property. Below, reference is made to some points: First, the concept ‘intellectual property’ – in the form found today – was not established at the time of the writing of Locke (see Cornides 2004, p. 167, stating that with regard to intellectual property“…the usage of the term “property” has emerged much later.” See also Palmer 1990, p. 818). The concrete term ‘intellectual property’ was not used by Locke. Second, the examples of labor that are given by Locke are not of a kind that would fulfill any “inventive step” requirement that is, in principle, applied in modern patent law. Third, Locke sought primarily to justify the taking of land in the ‘new world’ i.e. America. His thinking did not address the Statute of Monopolies, regulating State-granted privileges. Fourth, Locke only referred to human beings gaining entitlements. Presently, most of the owners of intellectual property are companies. This represents challenges for his justification of the labor theory. 125 For more analytical presentations, see Waldron 1988, Drahos 1996 and Stenvik 2001. 126 Koch 1992, p. 37. The Two Treatises of Government has been important in the development of more sophisticated philosophies. The most important is not whether Locke himself can be called a liberalist. More important is that he is perceived to be a liberalist (ibid, p. 45). 127 Locke 1690, Book II, Chapter 5, paragraph 25. 128 Ibid, paragraph 27. 129 Ibid, paragraph 27. 130 Ibid, paragraph 27. 131 For a discussion of the views of Locke to justify land claims over indigenous peoples lands, see Oskal 2001.
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the commons, like nuts or berries, which one has gathered through own labor, than to establish permanent titles because of labor. Locke’s assumption was that people are generally negative about engaging in the activity of labor. He proposed property rights as a just reward for the industrious. He found that this can also lead to social benefits, thus confirming the instrumentalist approach. In addition, Locke found that such property rights are justified by the commands of God. People, who in obedience to this command, have through tillage and sowing of any part of the common “…annexed it to something that was his Property, which another had no title to, nor could without any injury take from him.”132 The individual property rights must be socially embedded, and Locke also gave the two conditions on how the right to property shall be exercised. A man’s right to property shall be conditional upon the fact that: 5. there is enough, and as good left in common for others;133 6. one enjoys as much as any one can make use of to advantage of life before it spoils.134 These are important principles that should be observed, but these conditions are weakened by subsequent paragraphs, which point in the opposite direction.135 Based on these central paragraphs developed by Locke, the justification of the labor theory as presented by Locke cannot be directly applied in order to justify modern forms of intellectual rights. His reasoning over physical property, which is derived from manual labor, is not appropriate for justifying intellectual property, which requires that the efforts preceding the grant of the exclusive right have resulted in inventions which are truly new and creative.136 Therefore, while recognizing that Locke has been of crucial importance for justifying intellectual property rights, more particularly patent rights, his writings per se do not explain why he has gained such influence. In order to seek to identify a more appropriate justification of intellectual property, based on Locke, the writings of Nozick will be analyzed. He extends the principles of entitlement to intellectual property, and not only tangible property. It is recognized that there are several other central philosophers who have addressed intellectual property
132 Locke 1690, paragraph 32 (emphasis and capital letter in original). 133 Locke 1690, paragraph 27. The reasoning of Locke, which is conditional upon these two considerations, seems to be that the property to one’s labor is undisputable, unlike the property to what God has given to Mankind in common. 134 Ibid, paragraph 31. 135 Locke seeks to justify unlimited private accumulation in paragraphs 46-50. 136 Moreover, it should be observed that authors from a libertarian tradition find that there are substantial differences between property rights in tangible objects, which do not restrict liberty, and intellectual property rights, which do restrict liberty; see Palmer 1990 and Kinsella 2001; see also Hettinger 1989, p. 52, for a particular analysis regarding patents: “Patents restrict the actual usage of an idea (in making a physical object), while copyrights restricts only copying an expression of an idea” (emphasis added).
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issues.137 The comprehensive analysis of intellectual property developed by Nozick, however, warrants more attention.138 His reasoning on property in general and intellectual property in particular is compatible with the nature of the modern intellectual property rights system. Is Nozick’s justification of intellectual property – based on his distinction between original products and new products – appropriate? This study examines whether Nozick uses the conditions that Locke established (enough for anyone and non-spoiling), taking into account the need to identify a balance between the private good and the public good, when granting patent or plant breeders’ rights. Nozick starts by presenting the labor theory of Locke, by asking: “Why should one’s entitlement extend to the whole object rather than just to the added value one’s labor has produced?”139 He admits that there might be situations where someone may be worse off by another’s appropriation. This can happen in two ways, either by losing the opportunity to improve his situation, or by no longer being able to use freely what he previously could.140 The basic presumption for Nozick is that property rights are legitimate if there has been both justice in acquisition as well as justice in transfer. In presenting his principle of distributive justice, Nozick states that “…a distribution is just if everyone is entitled to the holdings they possess under the distribution.”141 The precondition is that legitimate means were used in the acquisition, implying also truth-preservation. He further differs between historical principles of justice and end-result principles of justice, the latter is represented by utilitarianist thinking, which will not be discussed further here. Nozick ends his brief discussion of historical principles of justice by concluding that entitlements are justified only if they are based on openness and voluntary transactions: “From each as they chose, to each as they are chosen.”142 By this must be understood that any use of force, coercion or false premises in any appropriation must be avoided if the appropriation shall be considered legitimate. 137 Several of the modern philosophers have addressed the issue of intellectual property. J.S. Mill, in his Principles of Political Economy (1848, book V Chapter X, section 4) 1998 version, p. 314, finds that “…the originator of an improved process […] ought to be both compensated and rewarded. […] He concludes on p. 315 that “…it would be a gross immorality in the law to set everybody free to use a person’s work without his consent, and without giving him an equivalent.” 138 It is acknowledged that Nozick is disputed over his theories on the minimalist state, and the view that the state should abstain from any efforts of redistribution, but it is also acknowledged at the same time that the neo-liberalist tradition in which he is found has become a prevailing political model. One of the most famous quotations from Anarchy, State and Utopia 1974, reads on p. 170: “…if it would be illegitimate for a tax system to seize some of a man’s leisure (forced labour) for the purpose of serving the needy, how can it be legitimate for a tax system to seize some of the goods for that purpose?” 139 Ibid, p. 175 (emphasis in original). 140 Ibid, p. 176. 141 Ibid, p. 151. 142 Ibid, p. 160 (changed use of italics).
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Moreover, Nozick argues that arrangements of property rights can be overridden (but not cease to exist) if the property rights threaten public interests.143 Therefore, it can be stated that Nozick, by drawing upon Locke, can also be understood to find that public interests, under certain specific circumstances, prevail over private interests. A section of the discussion of Nozick is devoted to intellectual property rights. On the issue of patents, as an example of intellectual property rights, the arguments of Nozick are along the same lines as for property rights in physical objects. Only if this appropriation actually leaves persons in a worse situation than before the appropriation, can this appropriation act seriously be questioned.144 Nozick argues that material that was appropriated and then improved by the inventor is still available in its original form. The improved material, on the other hand, is available only on the conditions set by the inventor. As long as the conditions of other people are not worsened (‘the baseline’), the action of intellectual property appropriation does not affect these people. Stated differently, “[a]n inventor’s patent does not deprive others of an object which would not exist if not for the inventor.”145 This statement is consistent with arguments presented by many who promote strong patent protection, also on plant genetic resources: “…no patent can stop a person from continuing something he has done before.”146 This argument is central for the defenders of the current system of patent protection, and will be subject to more detailed analysis in Part III and IV. Whether this assumption is actually true can only be tested against reality. The two conditions (‘provisios’) of Locke, that property shall be balanced against what is ‘left in common for others’ and no one shall fix more property than one ‘can make use of to advantage of life before it spoils’ are not seriously questioned by Nozick, and he does not give any principles for the concrete application of these provisios, in order to serve as guidelines for intellectual property policy. We will now turn to the two premises of the Nozick entitlement theory, more specifically justice in acquisition and justice in transfer. Based on the standard understanding of patent eligibility (novelty, inventive step and industrial applicability), one should presume that justice in acquisition is most relevant to intellectual property protection, granted as a result of the recognition of a distinctively new147 patentable object expressed in the patent claim. Situations where an inventor sells the invention to someone who can apply for a patent, or grant a license after the patent is actually granted, are examples of justice in transfer. 143 Ibid, p. 180. 144 Ibid, p. 181. deBeer 2005, p. 15 argues against this position, as “…people do suffer from being denied something [they] may not have, but does, in fact, exist.” For an argument in favor of Locke and Nozick, see Hughes 1998, particularly pp. 315-325. 145 Ibid, p. 182. 146 Richer and Simon 2000, p. 39. 147 This book does not want to question this observation substantially. Several objections have been made against the patenting of naturally occuring subject matter, inter alia, that it has been understood to challenge the requirement of novelty.
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The Nozickean concept of justice can be applied to situations of appropriation of biological resources that have been conserved, used and developed by a local or indigenous community. Two observations are relevant. First, an appropriation must be considered to be unjust if these communities are actually prevented from continuing their traditional activities. Second, if these communities are not directly prevented from continuing their traditional activities, certain circumstances where the resources were originally appropriated could also imply that the appropriation is unjust.148 Nozick recognizes collective property holders as being equal to private property holders if they belong to a region. He finds, however, that the burden of proof lies with the group of persons to legitimize that “…they have the right to determine what is done with the land.”149 The interesting question is to which extent this applies to what is grown on the land. As we have seen, Nozick recognizes the entitlement of the inventor to the new material he has developed. At the same time, his principles of openness and voluntary transactions are relevant when considering appropriation of resources extracted from living material that has been used and developed by local farmers, both in line with the prohibition against deprivation of a people’s ‘own means of subsistence’ of Article 1.2 in the Covenant and the ‘prior informed consent’ principle in Article 15.5 of the CBD. It is not possible to draw a definitive conclusion regarding the practical implications of the philosophy of Nozick, but his emphasis on the rights of the appropriator seems to serve a self-fulfilling prophecy that also serves to promote the expansion of the intellectual property system.150 Based on the legal criteria for being granted temporary exclusive protection (novelty, inventive step and industrial applicability), to which there are no serious objections, the Nozickean justification of intellectual property seems appropriate. Nozick does not elaborate on the two conditions (‘provisios’) introduced by Locke. While private goods are promoted more strongly than public goods by Nozick, his observations on justice should be paid more heed. This applies in particular to his observation that justice in the original acquisitions as well as openness and voluntarism in the transactions decides if the entitlement is just. Therefore, not even the political thinker who has been considered as the most principled defender of liberalism and private property presents an unconditional endorsement of intellectual property rights – but rather holds that these rights must be subject to certain principles in the public interest.
148 It is interesting that Nozick actually applies the term ‘justice’. This book does not seek to elaborate in detail on what he actually means by this term, but the term ‘justice’ has primarily an ethical aspect. 149 Nozick, p. 178. 150 For a criticism of Nozick’s arguments, see Sterckx 2005, pp. 185-186.
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2.3.5
Alternatives to Patent and Plant Variety Protection on Plant Genetic Resources for Food and Agriculture: Protection through Biological or Technical Meansâ•›151
This section will identify the alternatives to patent and plant variety protection which are available for the commercial innovators involved in developing products that are found to be eligible for patent and plant variety protection. Such products have an industrial and commercial nature.152 In particular, the prospects for introducing some forms of biological – as opposed to legal – protection, will be assessed. Such biological protection will give more certain protection than the legal protection provided by patents and plant breeders’ rights.153 Such protection is therefore an alternative form of protection than the legal protection provided under TRIPS. Other alternatives exist.154 It is difficult to predict the development of patent and plant variety protection in the field of food and agriculture.155 Furthermore, it is difficult to have precise predic151 In this section it is not intended to analyze proposed forms of intellectual property protection as alternatives, such as the Organization of African Unity (OAU) Model Law: The Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources of 2000. In this Model Law, greater recognition of breeding efforts made by farmers and communities, which are currently not recognized in international treaties, is central. It is difficult to determine the actual influence of this Model Law on national laws (See Chapter 9.2). 152 Straus 1998, p. 113, finds that genetic resources per se do not have much value. Therefore, legislation on access and benefit-sharing with regard to such resources will only succeed by the development of “…intangible aspects and characteristics of genetic resources as genotypes.” 153 For a comprehensive overview of issues, also with regard to developing countries which emerge in the context of protection by biological or technical means, see Swanson (ed.) 2002 and Goeschl and Swanson 2000. See also Goeschl and Swanson 2002, finding hybrids to be ‘technological protection’. 154 One obvious alternative is to treat all plant genetic resources, including new or improved plants or plant varieties, as belonging to the public domain (a legal concept based in Roman Law, particularly understood as resources which belonged to everyone, such as water and air: res omnius commune) or as global public goods (an economic concept based on two principles of non-excludability (when the good is provided, no-one shall be excluded from its use) and non-rivalry (the use by one does not exclude the use by others)), which has been recently developed by UNDP, see Kaul et al. (eds.) 1999 and Kaul et al. (eds.) 2003). It is also argued that these approaches are important and should be pursued. The designated germplasm of the Future Harvest Centers of the CGIAR (see Chapter 5.3) is recognized as global public goods which should be in the public domain. However, the present context is one in which patent and plant variety protection is widely applied, provided that the substantive eligibility criteria are met, and this study therefore seeks to identify potential non-legal protection. 155 It is not intended to present any empirical or statistical evidence regarding how the patent and plant variety system has evolved recently. Some trends have been reason for concern: First, there is concern that the application of the criteria of novelty, inventive step and industrial applicability has not been appropriately applied (Nuffield Council on Bioethics 2002, pp. 27-31). Second, the patent scope has been broadened, also encompassing also plants in which a pat-
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tions regarding the consequences of the gene revolution. Technical means, however, are available to ensure protection by technological or biological means that are 100 per cent secure. Currently, there is no commercialization of this form of protection, but the political ground for such commercialization is being prepared. There are various forms of protection of biotechnological inventions: hybrids, ‘genetic use restriction technologies’ (GURTs) and packages in which a seed yields substantially better if combined with specific fertilizers or pesticides, usually provided by the same company. This section will concentrate on GURTs, which effectively prevent the sexual reproduction of any plant into which a GURT gene is inserted. Already in 1999, UNEP noted: “There are indications that the biologically-based built-in protection provided by GURTs (against unauthorised reproduction of seed or added value traits) could substitute traditional legally-based protection conferred by intellectual property rights. Such biologically-based protection systems, that would effectively remove the policy control of governments of intellectual property rights in plant varieties and plant genetic resources, may be broader (entire genome, any seed), more effective (100% control) and less limited by time (compared to patents and licenses).”156 This concern is also expressed, although somewhat more carefully, in another document, a memorandum prepared by the UPOV Secretariat at the request of the CBD 6th Conference of the Parties meeting:157 “Should a State fail to establish an effective and well balanced system for the protection of new plant varieties, breeders may need to resort to other mechanisms to assure their economic interests, such as GURTs, which may have considerable disadvantages for society.”158 ented gene is inserted (the most relevant case is the Canadian Monsanto v. Schmeiser case (2004 SCC 34). Third, there is an increasing number of patent claims in each patent application, with the claims written more complexly, as well as an increasing number of patents which do not necessarily correspond to a similar increase in inventions. 156 UNEP 1999, paragraph 17, p. 7. Similar concerns, but expressed in a more cautious manner, are found in FAO 2001b. 157 UNEP 2002a: COP Decision VI/5, ‘Agricultural biological diversity’, which reads in paragraph 24: “Invites the International Union for the Protection of New Varieties of Plants (UPOV), the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore of the World Intellectual Property Organization (WIPO) and other relevant organizations to examine, in the context of their work, the specific intellectual property implications of genetic use restriction technologies, particularly in respect of indigenous and local communities.” In paragraph 23, a similar request was sent to FAO (see FAO 2002f for the FAO ‘Technical Study’ analyzing, inter alia, 1) use restriction, 2) environmental containment, and 3) agricultural productivity). See also UNEP 2000 (COP/V/5), paragraph 20. 158 UPOV 2003a, Annex I. The document was originally written by the UPOV secretariat, submitted to the CBD secretariat, but was later presented to the UPOV Administrative and Legal Committee. Among the disadvantages UPOV outlined were: GURTs may not be limited to one specific variety. GURTs do not allow any exception for farmers saving seeds. GURTs do not provide for research and breeder’s exemptions, thus cannot ensure sustained
Food, Biotechnology and Intellectual Property
At the meeting of UPOV’s Administrative and Legal Committee, held in April 2003, the USA successfully convinced UPOV to adopt another position regarding GURTs. 159 A new position paper was subsequently endorsed by the UPOV Council,160 introduced by the phrase “[t]his document supersedes the memorandum…” UPOV limited the analysis of GUR technology to one substantial sentence: “With respect to varieties containing GURTs, it should be noted that such varieties may be granted plant breeders’ rights if they satisfy the conditions.” There are obvious tensions regarding the potential introduction of GURTs. In the context of this study, it is relevant to consider whether legal protection will gradually be replaced by biological protection in the future. The crucial question is whether the life science industry will actually turn to such biological protection. In order to answer this question, it must be considered to which extent the State can actually regulate such biological protection, and which alliances are built for the promotion of this kind of protection. Below are possible answers to these questions. Will the seed companies turn to biological protection? In the USA there are already patents granted on GUR technology.161 While there is presently no commercial promotion of any plants containing GURT genes, it must be presumed that the commercialization of such plants is only temporarily delayed. At the CBD meeting to which the first UPOV memorandum was submitted the industry was also present.162 A joint paper by Biotechnology Industry Organization (represented by Monsanto) and the International Seed Federation (represented by Delta & Pine Land)163 makes an argument that farmers can actually benefit, finding that with
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160 161 162 163
breeding. Varieties containing GURTs may never become freely available for reproduction. Under GURTs there is no provision for public interest, allowing Government access to varieties under particular circumstances. GURTs may lack transparency, in the sense that the users can be left uninformed of the biological nature of the variety in use. The USA raised two objections (see Annex II of UPOV 2003a). The first objection concerned the process in which the memorandum had been prepared. The member States were not involved, and the USA held that the UPOV’s Administrative and Legal Committee was the right forum for deliberations before position papers were produced. The second objection from the USA related to the content of the memorandum, to which the USA disagreed, and therefore requested that it should be retracted. UPOV 2003b. US Patent No 5,723,765; US Patent No. 5,925,808; and US Patent No 5,977,441; see ETC Group 2003: “Who calls the shots at UPOV?” 17 April 2003, footnote 3). UPOV 2003a, Annex I. Collins and Krueger 2003: “Potential Impact of GURTs on Smallholder Farmers, Indigenous & Local Communities, and Farmers Rights: The Benefits of GURTs” (presented at the CBD Ad Hoc Technical Expert Group meeting on the potential impacts of genetic use restriction technologies on smallholder farmers, indigenous and local communities and farmers’ rights, Montreal 19 to 21 February 2003; see ETC Group: “Broken Promise? Monsanto Promotes Terminator Seed Technology”, 23 April 2003. (Not posted at BIO or ISF home page).
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GURTs, farmers choices will be increased, and that crop diversity will increase. Further, the authors argue that farmers have a very rational approach towards such technology, contending that if a supplier to a farmer charges too much for its seeds, the farmer will simply choose not to buy the product. The main argument presented in the paper is that GUR technology is the best way to limit unwarranted dissemination of transgenic seeds through pollen. Even if the seed industry has claimed this to be an unlikely incident, the introduction of GUR technology in transgenic crops ensures that such transgenic crops will not mix with wild plants. Therefore, GURT is a means by which biosafety might be enhanced.164 It must therefore be presumed that the GUR technology, while presently remaining in the laboratories, will be allowed in the fields when public authorities in the USA, and subsequently in other industrialized countries, find that such technology might provide an effective means to ensure biosafety.165 When such reception is considered likely, the industry will be ready. There are no convincing arguments asserting that farmers should purchase seed which only yields once. While increased yield might result from the planting of such seeds, there will be increased costs in purchasing these seeds. While the presentation by the Biotechnology Industry Organization and the International Seed Federation emphasized that smallholders also will benefit from planting seeds containing GUR technology,166 this position must be considered difficult to sustain. It cannot be categorically excluded that biological or technological protection will actually be an alternative to legal protection in the future. It is difficult to assess if such forms of protection will be preferred by the industry, as a rather hostile reception must be considered likely. Can public authorities regulate? Certainly, States could adopt legislations regulating the introduction of genetic use restriction technology. The discussions at coming CBD Conference of the Parties (COP) meetings, as well as the Ad Hoc Technical Expert Group on Genetic Use Restriction Technologies, in consultation with the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA), and the Working Group on Article 8(j) will address issues relating to this technology. While the USA is not a party to the CBD, it must be considered that the most comprehensive discussions on GURTs are likely to take place in the CBD. The parties to the CBD have already identified FAO, WIPO and UPOV to be relevant international
164 Biosafety must be understood not only as a condition, but also as an ongoing process. The Cartagena Protocol on Biosafety, in Article 2.2 reads: “The Parties shall ensure that the development, handling, transport, use, transfer and release of any living modified organisms are undertaken in a manner that prevents or reduces the risks to biological diversity, taking also into account risks to human health.” In the context of the BIO/ISF paper, ‘biosafety’ refers to processes to avoid that transgenic crops might constitute a risk to biological diversity. 165 See also US National Research Council 2002, p. 223: ”To restrict the transfer of transgenic traits […] it is generally considered essential to simultaneously genetically engineer reproductive sterility.” 166 Collins and Krueger 2003.
Food, Biotechnology and Intellectual Property
organizations concerning their positions on GURTs, and the discussion will therefore proceed in relevant committees in these organizations, as well. In principle, there is nothing that prevents the Committee on Economic Social and Cultural Rights from addressing the issue of GURTs, as well. However, it should be observed that the general comments and statements from the Committee have not been of a very specific kind, identifying specific technologies. For this reason, it could be argued that the Sub-Commission for the Promotion and Protection of Human Right can be relevant in highlighting relevant human rights implications of this technology. Concerning the introduction of such new technologies on a specific market, it must be presumed that when a new technology is presented to the relevant public authorities, the emphasis is on the positive aspects of such technology. On the other hand, it cannot be presumed that neither the relevant authorities nor the farmers have full information regarding new seeds in which the expressions of the gene are of such a kind that the plant does not self-propagate. Neither the brand nor the name of such seeds might reveal its actual yielding qualities. Farmers who have bought seeds with certain genetic characteristics one season will most probably not understand the yielding qualities before the time of the second harvest. This situation cannot be compared with hybrids, where the yield deteriorates, because genetic use restriction technology will imply that if seeds from the first harvest are sown for a second harvest, the plants simply do not materialize. Alliances for effective protection through genetic use restriction technologies: As already identified, the US government is crucial in any efforts to introduce the new technology. The industry considers that preventing the introduction of GUR technology “…could result in the loss of a type of technology with large potential benefits…”167 Recently, a positive view was also expressed by a Canada.168 The crucial strategy for expanding this technology further would be to have an explicit or implicit endorsement by any international organization. It must be considered that UPOV, through its decision in April 2003, has been pressed to change its position in favor of GURTs and in favor of the co-existence of plant breeders’ rights and GURTs. By admitting that the UPOV secretariat has not substantively examined the intellectual property implications of GURTs, UPOV has paved the way for the next step. The US 167 Ibid, p. 4 168 The Canadian position was made in the context of a report of an Ad Hoc Technical Expert Group on Genetic Use Restriction Technologies (GURTS), presented at the 10th meeting of the CBD’s Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA), held in February 2005 (UNEP 2005: UNEP/CBD/SBSTTA/10/15). The original text reads “…recommends that Parties and other Governments consider the development of regulatory frameworks not to approve GURTs for field-testing and commercial use.” Canada proposed that the latter part of this recommendation (from ‘not to approve’) should be replaced by the following: “…allow for the evaluation of novel varieties, including those with GURTs.” Canada also expressed “…concern over a de facto moratorium on GURTS…”, saying that “…Canada is prepared to block consensus on this issue.” See ETC Group Press Release 7 February 2005: “Canadian Government to Unleash Terminator Bombshell at UN Meeting: All-out push for commercialisation of Sterile Seed Technology”.
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government seems ready to allow, facilitate and itself undertake research on GURTs in order to address concerns over biosafety. It is important, however, to note that UPOV is not a UN organization, and makes its decisions on the basis of consensus rather than voting. This could imply that it is difficult to reach any consensus regarding GURT crops. On the other hand, the forumshifting from the CBD to the UPOV, where industrialized countries have stronger influence, should give reason for concern, also from a human rights perspective. It must be presumed that dependency upon external access for obtaining seeds for every season will negatively impact on the enjoyment of the right to food – even if the planting of these seeds might have a positive impact on the quality and quantity of the harvest.
3
Methodology: Principles and Sources under International Law
In this chapter, the principles for the interpretation under international law will be presented and analyzed, with a particular emphasis on interpretation of treaties. These principles will then be used to identify relevant interpretative material from human right treaties and TRIPS, and to a lesser extent one other treaty (UPOV), which is relevant to this study due to a particular reference in the TRIPS Agreement. While provisions from the CDB and the ITPGRFA and their implementing bodies will be included in the analysis in Part IV of this study, interpretative material arising from these treaties will not be analyzed in a systematic manner here. 3.1
Interpreting Treaties
A comparison of treaties belonging to different realms of international law poses challenges. On the one hand, international human rights law is understood to be fundamentally different from international economic law, to which TRIPS belongs. On the other hand, both the Covenant and TRIPS establish obligations on the States parties with regard to individual rights, based on the relationship between certain products and the enjoyment of rights. Moreover, authors’ rights are recognized as human rights, in accordance with Article 15.1(c) of the Covenant. Therefore, the two treaties might be more similar than they appear at a first glance. After presenting a non-exhaustive list of interpretative material under international law, principles for comparing treaties will be outlined. An explanation of the distinctions between interpretation and application of treaties, and between a treaty’s object and its purpose will be offered, as these distinctions are of importance for the analysis in Part IV. 3.3.1
International Law in Interpretative Material
Articles 31 and 32 of the Vienna Convention on the Law of Treaties (hereafter: VCLT) and Article 38 of the Statute of the International Court of Justice (SICJ) identify certain interpretation principles under international law. Together, they make up a list which cannot be considered to be exhaustive.
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The following interpretative material is listed in Articles 31 and 32 of the Vienna Convention (VCLT) and Article 38 of the Statute of the ICJ (SICJ): – the wording of the treaty (VCLT Article 31.1 and SICJ Article 38.1(a)); – the preamble and annexes to the treaty (VCLT Article 31.1); – any agreement relating to the treaty which was made between all its parties in connection with the conclusion of the treaty (VCLT Article 31.2(a)); – any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument relating to the treaty (VCLT Article 31.2(b)); – any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions (VCLT Article 31.3(a)); – any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation (VCLT Article 31.3(b)); – international custom (SICJ Article 38.1(b)); – any relevant rules or principles of international law (VCLT Article 31.3(c) and SICJ Article 38.1(c)); – judicial decisions (supplementary means of interpretation) (SICJ Article 38.1(d)); – preparatory work (supplementary means of interpretation) (VCLT Article 32); – the teachings of the most highly-qualified publicists of the various nations (supplementary means of interpretation) (SICJ Article 38.1(d)); – reasonableness, to confirm or determine the meaning of terms (supplementary means of interpretation) (VCLT Article 32). There is a distinction between primary and supplementary means of interpretation. Agreed subsequent practice in the application of a treaty or subsequent agreement regarding the interpretation of a treaty thus have a higher status than judicial decisions, which are merely considered as a supplementary means of interpretation. In practice, however, judicial decisions are emphasized, while it is not evident what qualifies for being considered subsequent practice in the application of, or subsequent agreement regarding the interpretation of, a treaty. These issues will be further addressed later in this chapter, analyzing judicial decisions by the WTO dispute settlement system and human rights declarations, resolutions and general comments. 3.3.1
Interpretation and Application of Treaties
Two different, but related concepts will be clarified: the principle of intertemporal law, and the principle of effectiveness in treaty interpretation, emphasizing the former. A clear understanding of the application and limitation of these concepts is important in the interpretation of treaties. The Covenant was adopted 40 years ago, and as with other
Note that these are interpretative materials under international law, or rather materials containing interpretative arguments or statements. A different list would emerge if the intention were to make a list of sources of international law; see Pauwelyn 2003c, p. 89, see also pp. 40-52, who identifies as sources: treaties, custom, general principles of law, unilateral acts of States and acts of international organizations. On the distinction between the latter two, see ibid, pp. 143-147.
Methodology: Principles and Sources under International Law
human rights treaties, the Covenant must be considered as a dynamic treaty. This section provides a framework for how treaties shall be interpreted and applied. Intertemporal law. There is a crucial distinction between the interpretation of a treaty and the application of a treaty. This distinction is made explicit in the ILC’s preparation for what was to become the Vienna Convention on the Law of Treaties. In the Third Report on the Law of Treaties, Sir Waldock observed: 1. 2.
A treaty is to be interpreted in the light of the law in force at the time when the treaty was drawn up. Subject to paragraph 1, the application of a treaty shall be governed by the rules of international law in force at the time when the treaty is applied.
This sums up the principle of intertemporal law. This principle consists of two elements. First, interpretation of a treaty is about giving meaning to the terms of the treaty – based on the wording of the treaty. Second, the application of the law to the facts must, however, take into account relevant rules of international law that currently exist, but which did not exist at the time of the adoption of the treaty. The understanding that treaties can be ‘developing’ is also found in the Vienna Convention on the Law of Treaties. Article 31.3(c) says that relevant rules (treaties, customary rules and general principles for the interpretation of international law) of international law ‘shall be taken into account’. The proposed text of what was to become Article 31.3(c) was amended in 1966 from “…rules of international law in force at the time of its conclusion” to “…rules of international law applicable in relations between the parties.” This emphasizes subsequent developments as being of relevance. The ICJ
The European Convention on Human Rights and Fundamental Freedoms is probably the most notable example in this regard. Third Report on the Law of Treaties, Yearbook of the International Law Commission 1964, Vol. II, p. 8. Two elements constitute the principle of intertemporal law. First, contemporaneity (terms are to be understood as they were understood at the time of the adoption of the treaty), and second, the principle of evolutionary terms (implicit or explicit references to an understanding of the terms in light of international law as it applies at the time of interpretation) (see Pauwelyn 2003c pp. 264-273). Proposed as paragraph 1 (b) of Article 70 in the Third Report (Yearbook of the International Law Commission 1964, Vol. II, pp. 52-53). The relevant provision (paragraph 1(b) of Article 69) was later, in the sixth Report of Waldock, amended to read “rules of international law” (Yearbook of the International Law Commission 1966 Vol. II, p. 101). At the 1966 session of the International Law Commission, however, the ILC’s Drafting Committee proposed a new text under paragraph 3, and this text was later adopted (with an insertion of a ‘the’) at the Vienna Conference on the Law of Treaties. See Sinclair 1984 pp. 138-139 and Yambrusic 1987, pp. 172-216 for an analysis. In UN 2005 (Report from the International Law Commission), p. 12, paragraph 29, however, it is asked whether Article 31.3(c) “…referred to the rule in force at the conclusion of the treaty or otherwise” (footnote omitted)
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explicitly confirmed that there was a “...continuous evolution of international law” in the Barcelona Traction Case. In another ruling, the ICJ concluded: “the expressions [...] must be interpreted in accordance with the rules of international law as they exist today...” There are two premises for this principle that new international norms are evolving, and treaties can be developing. First, new treaties are adopted; and second, the understanding of treaty terms can change, as certain terms are evolutionary. Each of these will be analyzed below. First, new treaties can clarify the understanding of certain rights or obligations of existing treaties. As a concrete example, the provisions on ‘natural resources’ in the International Covenant on Economic, Social and Cultural Rights (Articles 1.2, 11.2(a) and 25) must be understood in light of environmental principles which have been recognized in treaties adopted subsequent to the adoption of the Covenant.10 Second, treaty provisions should be interpreted in light of new understandings of the relevant terms, provided that these new understandings are consistent and generally agreed upon. The Appellate Body of the WTO has confirmed that a term used in the GATT 1947 Agreement is not ‘static’ in its content or reference but is rather ‘by definition, evolutionary’, and that “...such interpretation is in line with the principle of effectiveness in treaty interpretation.”11 Interpretation must be based on the treaty terms. It should be noted that the Vienna Convention on the Law of Treaties does not recognize the principle of intertemporal treaty interpretation explicitly. A recognized volume on international public law lists intertemporal law as a supplementary means of interpretation.12 Therefore, interpretation and application of treaty provisions by applying current understandings of the terms shall be undertaken only to the extent that this interpretation and application contributes to clarifying the provisions in light of the current context, as reflected by the continuing consensus of the parties to a treaty. In principle, it is possible for State parties to a treaty to object to the interpretations adopted by the judicial body, mandated to solve disputes arising from the implementation of a treaty. The body responsible for the interpretation of a treaty should therefore be careful in exceeding its mandate. Strictly speaking, the term ‘the parties’ as applied in Article 31.3 of the Vienna Convention on the Law of Treaties (unlike Article 31.2(a) which reads ‘all the parties’) must be interpreted to imply that there is no explicit requirement that all parties to a treaty must consent to developments in relevant interpretative material that is to be taken into account. When paragraphs 31.3(a) and 31.3(b) ICJ Report 1970, p. 33. ICJ Reports 1978 (Aegean Sea Continental Shelf), pp. 33-34, paragraph 80. 10 Of particular interest is the term ‘utilization of natural resources’ in Article 11.2 of the Covenant. Presently, it must be assumed to be stronger skepticism concerning technical solutions and a greater emphasis on environmental concerns and marginalized populations than in the 1960s. 11 US – Shrimps Appellate Body Report (WT/DS58/AB/R), paragraph 130 and 131. The term discussed is ‘natural resources’ in GATT Article XX(g). 12 Jennings and Watts 1992, pp. 1281-1282.
Methodology: Principles and Sources under International Law
both apply the term ‘agreement between the parties’, one should be careful to adopt any interpretation which the State parties to the treaty do not consent to.13 The most appropriate way to include new understandings of relevant terms, and reflect better the adoption of new treaties, is to amend the treaty by negotiations, in accordance with Article 40 of the Vienna Convention on the Law of Treaties. In accordance with Article 41 of the Vienna Convention on the Law of Treaties, there are strict rules for the modification of treaties. Article 41.1 states that two or more parties to a multilateral treaty may conclude an agreement to modify a treaty on the condition that such modification is provided for by the treaty, is not prohibited by the treaty, does not affect the rights of others or the performance of their obligations, and is not incompatible with the effective execution of the object and purpose of the treaty as a whole. We will now examine whether there is a difference between the Covenant and the TRIPS Agreement regarding whether the principle of intertemporal law applies to these two. An obvious difference between the two is that the latter is much more recent, and hence the principle of intertemporal law does not necessarily apply to the TRIPS Agreement. On a more substantial level, two differences between the treaties are important. First, as will be further elaborated upon in Chapter 11.3.3, there is a distinction between treaties which can be amended by two or more parties (bilateral trade agreements) and treaties which cannot be amended by some of the parties (human rights treaties). The latter treaties have a constitutional character,14 and protect more vital interests. The TRIPS Agreement establishes standards for the protection of individual rights. Hence, TRIPS represents more than merely a bilateral trade agreement. On the other hand, TRIPS explicitly allows for amendments.15 Second, under human rights treaties, there is a stronger acknowledgement of these treaties being ‘developing’.16 This is also confirmed in a recognized volume on international law: “…a treaty of a ‘constitutional’ character should be subject to somewhat different rules of interpretation so as to allow for the intrinsically evolutionary nature of a 13
See UN 2005, pp. 217-18, paragraph 472, for an overview of four different positions regarding which States that must be parties to a treaty which is used for interpretative purposes of another treaty: a) all parties to the treaty under interpretation must also be parties to treaties used for interpretation; b) the parties to the dispute must be parties to the other treaty; c) the rule contained in the other treaty must possess the status of customary international law; d) the rule contained in the other treaty must be accepted by all parties to the treaty under interpretation. None of these options are given preference, and the decision will depend on both the treaty under interpretation and the specific facts (ibid, p. 17, paragraph 38). 14 On treaties of a constitutional character, see Kirchner 2004. 15 See Article 71.1, third sentence, and Article 71.2. 16 This principle is most explicitly established by the European Court of Human Rights; see Tyrer v. United Kingdom (Series A, No. 26 (1978) 2 E.H.R.R. 1) pp. 15-16, paragraph 31 and Loizidou v. Turkey (Series A, No. 310 (1995) 20 E.H.R.R. 99), p. 23, paragraph 71.
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constitution.”17 The same authors state that “...the interpretation of a treaty’s provisions cannot be divorced from developments in law subsequent to its adoption.”18 In other words, such treaties of a constitutional character are not easily subject to amendments, but might be developing. Regarding the TRIPS Agreement, it must be emphasized that the WTO Appellate Body has recognized the principle of evolutionary norms.19 The TRIPS Agreement contains several concepts that must be understood to be evolutionary, such as ‘public interests’ (Article 8.1), ‘effective’ and ‘sui generis’ Article (27.3(b)), and ‘national emergency’ (Article 31(b)).20 Moreover, as TRIPS regulates advanced technology, subject to rapid changes, new understandings of the terms might arise. Also TRIPS can therefore be recognized as being developing.21 The principle of effectiveness in treaty interpretation (ut res magis valeat quam pereat). This principle must be assessed independently from the principle analyzed above.22 The principle of effectiveness implies that one must carefully undertake an examination of all the terms of the relevant provisions of the treaty, within the context of relevant rules of international law. The basic principle of all treaty interpretation is that the treaty shall be interpreted in good faith and in accordance with Article 31, as well as Articles 32 and 33 of the Vienna Convention on the Law of Treaties. The principle of effective treaty interpretation has been described as follows by the International Law Commission, commenting in general on the interpretation of treaties: “When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted.”23 17 Jennings and Watts 1992, p. 1268, referring to ICJ Report 1962, p. 211 (Certain Expenses of the United Nations). 18 Ibid, p. 1282. 19 US – Shrimps (WT/D58/AB/R), paragraph 130. 20 For an analogous argument exemplified by the terms ‘public policy’ or ‘the protection of morals’, see Sinclair 1984, p. 139. 21 See also Pauwelyn 2002, pp. 32-39. He extends too far the consequences of finding treaties as being ‘continuing’. On p. 45 he states that in these situations, the “…Art. 30 does not apply and one must have resort to other conflict rules (in particular, the lex specialis principle).” He argues against emphasizing the time of conclusion (lex posteriori) of a continuing treaty, arguing that this will have an ‘absurd effect’ (p. 47). The view that acknowledging certain treaties as being dynamic or ‘continuing’, will in effect imply that Article 30 of the Vienna Convention does not apply, cannot be considered correct. The present author argues for a more cautious approach. 22 Note, however, WT/DS58/AB/R, in which the Appellate Body made a direct link between the evolutionary understanding of the term ‘natural resources’ in Article XX(g) of GATT 1994 in paragraph 130, and the reasoning in paragraph 131, emphasizing the principle of effectiveness in interpreting Article XX(g). 23 See Yearbook of the International Law Commission 1966 Vol. II, p. 219, paragraph 6. The ILC also found that this approach does not go “…beyond what is expressed or necessarily to be implied in the terms of the treaty” (ibid). The ILC expressed concern that to include a separate provision, as was proposed in Waldock’s 1964 Report (Yearbook of the International
Methodology: Principles and Sources under International Law
While this must be considered as a reasonable understanding, derived from Articles 26 and 31 of the Vienna Convention on the Law of Treaties, the principle of effectiveness in treaty interpretation is not contained in the Vienna Convention on the Law of Treaties.24 Effectiveness, however, implies that terms shall be interpreted in good faith in their context and in light of the objects and purposes of the treaty, in accordance with Article 31.1 of the Vienna Convention on the Law of Treaties.25 The principle of effectiveness is important in the context of this book primarily with regard to the Covenant, as interpretations have to a large extent ignored the second paragraph of Article 11.26 The WTO’s Appellate Body has recognized this principle.27 With regard to TRIPS, however, there has been no interpretation of the important provisions of Article 7 and 8; they have only been referred to as ‘important’.28 3.3.2
Interpreting the Terms in Light of a Treaty’s Object and Purpose
While the interpretation of terms of a treaty shall be done in light of the treaty’s object and purpose,29 this section will identify more precisely what this implies. More precisely, this section will provide an understanding of the two terms, ‘object’ and ‘purpose’. As a background, the Covenant and the TRIPS Agreement have a different emphasis. The former applies the phrase ‘full realization of the rights’30 but leaves much discretion to the States for determining how the rights shall be realized. The latter is less ambitious,31
24
25 26
27 28 29
30 31
Law Commission 1964, p. 53, see also pp. 60-61) “…might encourage attempts to extend the meaning of treaties illegitimately…” (Yearbook of the International Law Commission 1966 Vol. II, p. 219, paragraph 6). Effective interpretation of the terms was proposed as Article 72 in the 1964 Third Report on the Law of Treaties by Waldock (Yearbook of the International Law Commission 1964, Vol. II), but was deleted, as the principle of ‘good faith’ of Article 31.1 was found to also encompass the principle of effectiveness; see also Jennings 1991, p. 145. See Canada – Pharmaceuticals (WT/DS114/R), paragraph 4.16. General Comment No. 12 is the most prominent example, as there are only two paragraphs in the whole document which have references to food production (paragraphs 25 and 26, identifying ‘critical issues in regard to all aspects of the food system, including the production, processing, distribution, marketing and consumption of safe food’ and ‘prevent discrimination in access to food or resources for food, including appropriate technology’, respectively). For an in-depth analysis of Article 11.2, see Alston 1984 and Craven 1995. Japan – Taxes on Alcoholic Beverages (WT/DS8/AB/R), litra G. See Chapter 10.2.3 (analyzing Canada – Pharmacauticals) and 10.2.4 (analyzing the Doha Declaration on TRIPS and Public Health). In a dissenting opinion in the PCIJ case Interpretation of the Convention of 1919 Concerning Employment of Women During the Night, Judge Anzilotti said (Series A/B No 50 (1932), p. 383, paragraph 1): “I do not see how it is possible to say that an article of a convention is clear until the subject and aim of the convention has been ascertained…” Article 2.1 of the Covenant. As an example in the field of patents, see Article 27.1: “…patents shall be available and patent rights enjoyable…”
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but is very detailed on the compliance with the treaty obligations.32 A clearer understanding of the object and purpose of the two treaties is therefore important in an analysis comparing the two, where interpretation of treaty terms are done in their context and in light of the treaty’s object and purpose. The principle of ‘object and purpose’ was first applied by the International Court of Justice in the Reservations Case, which applied the term ‘raison d’être’ instead of ‘object’.33 For several years, international courts have not been consistent in their application of these terms.34 The Vienna Convention on the Law of Treaties Article 31.1 made clear that the terms of the treaty shall be interpreted in light of the treaty’s object and purpose. No less than eight articles of the Vienna Convention on the Law of Treaties applies the terms ‘object and purpose’,35 particularly those addressing reservations to or modifications of treaties. This indicates that a treaty’s object and purpose is important, not only in interpretation, but also in any decisions regarding reservations or modifications. The terms ‘object’ and ‘purpose’ in the English language appear to be referring to more or less the same, and they might be applied interchangeably.36 Therefore, there is a need for a more precise understanding of the difference between the two. The easiest way of defining the two is that the purpose is the aim to be achieved by the treaty, while the object is the legal positions created by the treaty for achieving the aim.37 It is important to note that the two terms are different, but they should always appear together in any treaty interpretation. The next question is how the object and purpose of a treaty are to be identified.38 In line with an interpretation based on the treaty terms, additionally the object and purpose of a treaty “…are to be collected, primarily, from ‘the terms of the treaty in their context’.”39 Traditionally, however, there has been a tendency to equate the purpose of a treaty with what is said in the preamble to the treaty.40 Recent developments, particularly seen in the WTO’s Appellate Body, imply that not only the preamble, but also the substantive articles are important for identifying the ob32 See particularly Part III of TRIPS. 33 The ICJ said in the Reservations to the Genocide Convention (ICJ Report 1951 p. 21): “…none of the contracting parties is entitled to frustrate or impair […] the purpose and raison d’être of the convention.” 34 Buffard and Zemanek 1998, pp. 315-316 and Crnic-Grotic 1997, pp. 142-143 refer to several PCIJ and ICJ decisions in which various terms have been applied, in a confusing and inconsistent manner. 35 These are: 18, 19(c), 20.2, 31.1, 33.4, 41.1(b)(ii) 58.1(b)(ii) and 60.3(b). 36 See Crnic-Grotic 1997, p. 143 and Linderfalk 2003, p. 433. 37 See Buffard and Zemanek 1998, p. 331. See also Linderfalk (ibid, p. 434 and p. 442) distinguishing between object as the ‘normative content’ and purpose as the ‘state of affairs to be attained’. 38 It is held that the Vienna Convention “…does not contain a specific directive on how the object and purpose of a treaty are to be elucidated.” (ibid, p. 322). 39 See Jennings 1991, p. 145. 40 ICJ Report 1952, p. 197 (United States Nationals in Morocco). See also Yearbook of the International Law Commission, 1966 Vol. II (commenting on (then 27) Article 31), p. 221, paragraph 12, with a footnote referring to US-Nationals.
Methodology: Principles and Sources under International Law
ject and purpose of a treaty.41 The International Law Commission was not able to identify any principle for identifying which provisions – beside the preamble – that could be applied in order to identify the object and purpose of a treaty.42 It is reasonable, however, to identify the ‘programmatic articles’ as being of particular importance.43 Such programmatic articles are found both in the TRIPS Agreement (Articles 7 and 8) and in the International Covenant on Economic, Social and Cultural Rights (Article 2.1).44 An interpretation based on a treaty’s object and purpose represents a particular challenge, as the interpreter must first identify this object and purpose, which is not only found in the preamble, but also in both programmatic and substantive provisions. An interpretation which does not interpret the terms of a treaty in light of its objects and purposes is not adequate,45 and it must be avoided that a strict interpretation of each provision results in interpreting the terms in isolation.
41 See India – Patent Protection (WT/DS50/AB/R) paragraph 45 and US – Shrimps (WT/DS58/ AB/R), paragraph 116, both in which the Appellate Body criticized the reports of the respective panels for their definition of the object and purpose of the WTO and GATT Agreements. Reichmann 2000, p. 448, refers to the Appellate Body’s approach as “…the strict constructionist principle.” Blackett 1999, p. 66 finds that the Appellate Body “…focused its analysis on identifying the policies and interests represented in the specific provisions of the treaty.” 42 The ILC only raised the question of “…exactly which provisions are to be regarded as material for the achievement of that ‘object and purpose’.” (Yearbook of the International Law Commission 1962, Vol. II pp. 65-66, paragraph 10). See also a previous position in Yearbook of the International Law Commission 1951, Vol. II, p. 128, paragraph 24. See also Buffard and Zemanek 1998, p. 343. 43 See Buffard and Zemanek 1998, p. 333. 44 While there is an established principle under both treaties that the substantive articles shall be interpreted in light of the introductory articles, there are differences between the two, as the provisions of Part II of the Covenant, particularly Article 2.1 and 2.2, are said to be “…of particular importance in understanding the precise nature of State parties obligations.” (General Comment No. 3, (UN doc. E/1991/23, pp. 83-87) paragraph 1), while the provisions of Part I of TRIPS, particularly Articles 1, 7 and 8, seem to be of less importance in the interpretation of the substantive provisions of TRIPS (See Canada – Pharmaceutical Products (WT/DS114/R) paragraph 7.26, where the Panel found that Article 7 and 8.1 ‘must obviously be borne in mind’; see also paragraph 7.92. 45 Note in this context, the observations regarding the general rule of interpretation [then Article 69] of the ILC’s Special Rapporteur, Sixth Report on the Law of Treaties: ”…the Commission [ILC] did not, it is believed, intend in 1964 to establish any positive hierarchy for the application of the means of interpretation…” (Yearbook of the International Law Commission 1966 Vol. II, p. 95, paragraph 4). While the terms of the treaty are the basis for any interpretation, elements such as the object and purpose of the treaty cannot be ignored in the interpretative process. See also Yambrusic 1987, pp. 201-202.
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3.3.3
Principles for Identifying Balance between Treaties
The basic presumption is that all treaties are binding upon the parties to the treaty, and shall be performed in good faith, in accordance with Article 26 of the Vienna Convention on the Law of Treaties. In principle, there is no hierarchy in international law46 – with the exception of treaties giving rise to jus cogens47 norms. Depending on the legal questions that are to be clarified in any treaty interpretation, interpretative material from other treaties can also be included, based on their relevance and weight. Amidst the two treaties that are analyzed in this study, different traditions of interpretation have developed. In line with what was found in Chapter 3.1.3 above, while interpretation of the Covenant tends to emphasize its object and purpose – which can simply be defined as full realization of human rights – interpretation of the TRIPS has explicitly analyzed the meaning of the particular terms of the treaty.48 Related to this is the different approach of the two treaties’ adjudicating or supervisory bodies regarding their identification of other treaties as conflicting with the treaty under their jurisdiction. In the Committee on Economic, Social and Cultural Rights, there seems to be a low threshold for identifying international treaties which could work against the realization of the rights recognized in the Covenant.49 The WTO dispute settlement system, on the other hand, holds that there is a presumption against conflict in international law.50 On a more general level of identifying balance between two treaties, there are two important observations which are relevant in the context of this study. First, some treaties contain explicit provisions which state how the provisions of the treaty shall apply in relation to provisions of other treaties. An example is the phrase “nothing in this treaty shall be interpreted as implying in any way a change in the rights and obligations of the Contracting Parties under other international agreements.”51 46 In Chapter 3.1.2 above, it was referred to treaties which can be amended by the parties and treaties which cannot be amended by the parties; see also Chapter 11.3.3. 47 See Vienna Convention on the Law of Treaties, Articles 53 and 64. Slavery, torture, aggression, crimes against humanity, apartheid crimes and racial discrimination crimes are held to constitute jus cogens, but the International Law Commission notes (UN 2005, p. 19, paragraph 42) that “…norms of jus cogens lacked a definitive catalogue.” 48 Ehlermann (Appellate Body member) 2002, p. 616, writes with regard to the practice of the Appellate Body concerning Article 31.1 of the Vienna Convention on the Law of Treaties: “…‘context’ has less weight than the first [ordinary meaning of the terms of the treaty], but is certainly more often used and relied upon than the than the third, i.e. ‘object and purpose’…” (emphasis added). 49 The term applied is not directly ‘conflict’, but ‘failure of a State to take into account its international legal obligations regarding the right to food when entering into agreements…” (General Comment No. 12 (UN Doc E/2000/22 pp. 102-110, reprinted in Eide et al. (eds.) 2001, Annex 2), paragraph 19). Underlying this understanding is a stronger emphasis on the object and purpose of a treaty, as well as the potential impacts of other treaties. 50 Indonesia – Automobiles (WT/DS55/R, with parallel cases) paragraph 14.28. 51 Preamble to the International Treaty on Plant Genetic Resources for Food and Agriculture.
Methodology: Principles and Sources under International Law
Second, the Dispute Settlement Understanding of the WTO says in Article 3.2 that customary rules for interpretation apply (extracts): The dispute settlement system […] serves to […] clarify the existing provisions of [the WTO agreements] in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB [Dispute Settlement Body] cannot add to or diminish the rights and obligations provided in the covered [WTO] agreements.
Article 3.2 of the Dispute Settlement Understanding states that the dispute settlement system shall adopt rulings and recommendations based on the WTO multilateral trade agreements (‘WTO agreements’). Article 3.2 cannot be applied to limit the possibilities to take into account other interpretative material than WTO agreements, provided that such interpretative material is relevant for the interpretation of the specific provisions of the WTO agreements.52 If a non-WTO rule shall be taken into account, it must “…reflect the common understanding of all WTO Members.”53 Therefore, the threshold for applying non-WTO rules in disputes regarding interpretation of WTO agreements, must be considered to be high. While the old GATT 1947 was considered as a special legal system,54 the WTO Agreement and its annexes are a part of public international law, subject to the same 52 See Pauwelyn 2001, p. 561, stating that “…the DSU does not limit the applicable law…” before the WTO dispute settlement panel and Appellate Body (my emphasis). There is uncertainty as to what is understood by ‘applicable law’ (a term not applied in the DSU). See also Pauwelyn 2003c, p. 465, stating that the Dispute Settlement Understanding (DSU) does not define what is meant by ‘applicable law’. Pauwelyn finds that “…international law continues to apply to all WTO treaties…” (ibid). The terms ‘apply to’ and ‘applicable law’ have equal connotations, and in the following, the discussion is based on the premise that other treaties could be applicable law for clarifying the provisions of the WTO agreements. The term ‘apply to’ is different from ‘to apply’. The latter is for any WTO body limited to the ‘covered agreements’, including those agreements which have been incorporated into the WTO, either through an agreement (such as TRIPS Article 1.3 or Article 2) or a waiver adopted by the WTO (Palmeter and Mavroidis 1998, pp. 412-413). In Chapter 10, the distinction between ‘law to be applied’ and ‘law to be taken into account’ will be examined. I will argue that the dispute settlement system must take into account non-WTO law, but is not mandated to apply such law (Trachtmann 2002, p. 88, note 28). 53 Pauwelyn 2001, pp. 576-577. On the term ‘continuing consensus of the parties’, see McDougal et al. 1967 p. 99. 54 There has been a tendency to consider the WTO as a ‘self-contained system’. Koskenniemi 2003, p. 8, defines ‘self-contained regime’ as “…the case where a set of primary rules relating to a particular subject-matter is connected with a special set of secondary rules [relating to creation, change and breach of primary rules] that claims priority to the secondary rules provided in general law.” There is general agreement that while GATT 1947 was isolated from other rules of international law, the same does not apply to the WTO. See Marceau 2002, pp. 766-773, stating that it is wrong to view WTO as a ‘hermetic’ system. See also Pauwelyn 2001, pp. 542-543, stating that to many WTO negotiators, it was a ‘revelation’ that general principles for interpretation of international law apply to the WTO Agreement and its annexes.
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basic rules for interpretation. While the structure of the WTO – with strong supervision through the councils and committees, as well as effective dispute resolution through the dispute settlement system55 – provides for more effective compliance compared with human rights treaties, the WTO Agreement does not have a more predominant role in relation to other international treaties. The WTO’s procedures for solving disputes is merely an efficient mechanism for ensuring compliance with treaty obligations, and does not imply that WTO agreements prevail over other agreements.56 Finally, it must be emphasized that the preambles, articles outlining object and purpose, and articles on exceptions in WTO agreements, including the TRIPS Agreement, emphasize that societal objectives are not generally ignored in the WTO Agreement. While WTO agreements are generally understood to protect narrow interests relating to trade and investment, public interests are not ignored. It must be observed, however, that there have been few references to any specific human rights in any ruling from the dispute settlement system.57 Economic, social and cultural human rights are now better understood, more explicitly confirmed and much higher on the international agenda, compared to the situation 15 years ago when the TRIPS Agreement was negotiated. It cannot be excluded that human rights might be relevant in the interpretation of provisions of WTO agreements by the Dispute Settlement Panel and Appellate Body (See Chapter 10.2.3). This is also provided by Article 31.3(c) of the Vienna Convention, saying that ‘any relevant rules of international law applicable in the relations between the parties’ are to be taken into account.58
55 Article 22 of the DSU applies in situations of non-compliance with the decisions by the DSB. 56 Pauwelyn 2001, p. 553, has observed the ‘two-class society’ between international treaties, more specifically “…between rules of international law that can be judicially enforced before a court with compulsory jurisdiction and those that cannot.” The same author notes, however, that the WTO Agreement does not, as such, stand out from other treaties of international law: “…if the drafters had wanted the WTO Treaty to play the role of a second UN Charter, prevailing over all other law, would they not have said so?” (ibid, p. 565). 57 Petersmann 2003, p. 257, footnote 54, found that the term ’human rights’ had been referred to ten times in written material from the dispute settlement system. 58 As stated by the International Law Commission, the need to turn to Article 31.3(c) of the Vienna Convention on the Law of Treaties is restricted to specific situations of interpretation of treaty terms (see United Nations 2004, pp. 300-301, paragraph 347), more specifically the following three situations: if a treaty term is unclear; if the term has a well-recognized meaning under customary law; or when reference to other sources of international law will assist in giving content to the rule. Footnote 650 refers to the US – Shrimp and EC – Hormones Appellate Body Reports, which adopted this position in the construction of Article XX GATT. Thus, under Article 31.3(c) “…there would be no room to turn to other rules of international law unless the treaty itself gave rise to a problem in its interpretation” (ibid).
Methodology: Principles and Sources under International Law
3.2
Interpretative Material under Human Rights Conventions
3.2.1
In General Concerning the UN Human Rights Instruments
Seven human rights treaties form the core of the UN human rights system.59 Each of these has their own monitoring body or treaty body, consisting of independent experts. Four of the treaty bodies, excluding the Committee on the Rights of the Child and the Committee on Economic, Social and Cultural Rights, can receive individual complaints, but only after national remedies have been exhausted. In this study, the International Covenant on Civil and Political Rights, as well as the Convention on the Rights of the Child will be included in the analysis,60 but the main emphasis is on the International Covenant on Economic, Social and Cultural Rights. In addition to the treaty-based mechanism, there are charter-based mechanisms. These are the Commission on Human Rights61 and its Sub-Commission on the Promotion and Protection of Human Rights,62 the latter of which undertakes studies in the field of human rights. Of particular importance for the work of the Human Rights Council is the work of the Special Rapporteurs and Special Representatives, mandated to monitor particular States or particular themes, with regular reporting. Negotiations on new human rights instruments are done in the Human Rights Council, before proposed treaty texts are sent via the Economic and Social Council (ECOSOC) to the General Assembly, which is the highest body of the UN. The Third Committee of the General Assembly is responsible for human rights. The adoption of optional protocols, legally binding on the ratifying States only, is one of the processes initiated by the Human Rights Council.
59 International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination Against Women, Convention Against Torture, and the Convention on the Rights of the Child. Each of these has between 139 and 191 ratifications. In addition, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, is now in force, but with only 27 ratifications, it is a rather weak convention. 60 The former has relevant provisions on the rights of minorities (Article 27), as well as important clarifications of relevant paragraphs, some of which are common with the International Covenant on Economic, Social and Cultural Rights. The latter is relevant primarily because of the two paragraphs on ‘nutritious food’ and ‘nutrition’ (Article 24.2(c) and 27.3). 61 The Human Rights Council consists of 47 members and is elected by the UN General Assembly for a three-year term, reporting directly to the UN General Assembly. The Human Rights Council meets for several sessions annually, with options for extraordinary sessions in cases of human rights emergencies. 62 The Sub-Commission is the main subsidiary body of the Human Rights Council. It is composed of 26 experts who act in their personal capacity and are elected by the Human Rights Council. It meets for a three-week session annually. Its main function is to undertake studies and to make recommendations to the Human Rights Council.
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3.2.2
The Relevant Interpretative Material from the UN Human Rights Instruments
Based on the list of interpretative material found in Chapter 3.1.1, this section will analyze the relevance and weight of the human rights interpretative material: – the wording of the International Covenant on Economic, Social and Cultural Rights, especially Articles 2, 11 and 15; as well as its preamble; – the United Nations Charter; – other human rights treaties (Convention on the Rights of the Child); – customary law (in particular the Universal Declaration of Human Rights); – general principles of law; – interpretative statements by the Committee on Economic, Social and Cultural Rights, especially General Comment No. 12 (the right to adequate food) and Guidelines for State reporting (supplementary means of interpretation); – inter-governmental documents (particularly the World Food Summit Declaration and the Voluntary Guidelines), (supplementary means of interpretation); – interpretative statements from other treaty-based bodies (in particular the Human Rights Committee, responsible for the supervision of the International Covenant on Civil and Political Rights), (supplementary means of interpretation); – preparatory works related to the International Covenant on Economic, Social and Cultural Rights (supplementary means of interpretation); – teachings of highly-qualified publicists, especially the Limburg Principles on the Implementation of the International Covenant on Economic, Social, and Cultural Rights, and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights and other reports by right to food experts (supplementary means of interpretation); – reasonableness, especially the particular interests human rights treaties aim to defend, which must be considered as different from treaties regulating economic and technical issues (supplementary means of interpretation). The International Covenant on Economic, Social and Cultural Rights: The wording of the Covenant has the most weight of the human rights interpretative material. Part III outlines the different rights, and Articles 11 and 15 are of particular relevance for the issues analyzed in this book. Also Article 2, which is found in Part II on general obligations, will clarify the scope of the obligations under the Covenant. The Charter of the United Nations: This Charter is the UN Constitution and contains two articles on human rights that are relevant for the current discussion. Article 1(3) states that the purpose of the United Nations is: …to achieve international co-operation in solving international problems […] …and in promoting and encouraging respect for human rights…”
Article 55(c) says:
Methodology: Principles and Sources under International Law
…based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote […] universal respect for and observance of human rights…”
The promotion of human rights is thus one of the main foundations of the United Nations.63 While the Charter has a particular weight, it is less obvious that the Charter is equally relevant for the purpose of this study. First, the Charter emphasizes the purpose and tasks of the United Nations, not obligations of particular States. Second, it is difficult to identify if the Charter includes only those human rights which were recognized at the time of the adoption of the Charter.64 Third, the Charter itself, in Article 55, applies a general and purpose-oriented wording, which does not necessarily serve as a guide for solving the complex issues addressed in this book. The importance of the recognition of human rights in the Charter of the United Nations, however, must be acknowledged. Other treaties: The Convention on the Rights of the Child is relevant for this book, confirming the right to food in two paragraphs (24.2(c) and 27.3). Customary law: Treaties and customary law represent the two main sources of international law. The right to food is recognized in the Universal Declaration of Human Rights, which is non-binding. It is not intended to solve once and for all the discussion on whether the Universal Declaration represents customary law,65 and hence whether it is binding on all States, or whether only some human rights in the Declaration represent customary law. The Universal Declaration, however, has both weight and relevance in the context of the issues analyzed in this book. General principles of law: There is no agreed definition of what is implied by Article 38.1(c) of the Statutes of the International Court of Justice,66 but it should be noted that
63 The other foundations are held to be peace, development and respect of self-determination. 64 It can be argued that the right to food was recognized as a human right in the Universal Declaration. 65 There are strong conditions that must be fulfilled in order to be considered customary law. First, there must be a consistent State practice over time. Second, there must be an agreed interpretation (opinio juris) that the norm constitutes customary law. State practice, determined by factors such as duration, actual content, and number of States participating, is important; see Byers 2002, pp. 83-84. A more elaborate analysis is given in Chapter 5.2.3. 66 See Jennings and Watts 1992, p. 36; see also Brownlie 2003, p. 18. A clear distinction between customary law and general principles of law can be difficult to draw. As an example, reference will be made to examples of general principles of law as identified by two authors, Shaw and Brownlie. The former identifies as a general principle of law the principle of self-determination of peoples, which must be balanced against the principle that States can not plead the rule of domestic jurisdiction as a bar to international concerns and considerations of internal human rights situation (Shaw 2003, p. 254). The latter identifies certain environmental principles as general principles of law, such as the precautionary principle and the principle of sustainable development (Brownlie 2003, p. 275-277), referring to these as ‘emergent legal principles’. All of these can also be customary law.
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general principles of law “…enables rules of law to exist which can fill gaps or weaknesses in the law…”67 General comments and Guidelines: Interpretation of the International Covenant on Economic, Social and Cultural Rights (supplementary means of interpretation): The Committee on Economic, Social and Cultural Rights has interpreted the various provisions of the Convention by the issuing of general comments.68 The Committee has contributed substantially to developing the understanding of the provisions of Covenant.69 The Committee has so far issued 18 general comments. Some general comments are non-specific, and are not based on the wording of a specific article of the Covenant.70 Other general comments are interpretations of one specific human right, as recognized in the Covenant. General comments that aim to clarify the methods and means of implementation are a third category of general comments.71 The most important question is whether these general comments must be considered to have the character of interpretative material. The second category of general comments will be focused on, particularly General Comment No. 12.72 This general comment is an important contribution in understanding the right to food, especially focusing on how one should understand the obligations of State parties. The Committee has itself stated that a crucial motivation behind the issuing of general comments, is “…to suggest improvements in the reporting procedures and to stimulate the activities of the State parties, international organizations and specialized agencies…”73 The examination of reports by the States to the Covenant is the primary task of the Committee, through which the Committee assesses whether the State practice is in accordance with the relevant provisions of the Covenant. The Committee, responsible for monitoring the implementation of the Covenant, is a relevant body for identifying the content of the right to adequate food. This study will seek to identify the weight of general comments, illustrated by General Comment No. 12, as an interpretative material of Article 11 of the Covenant. Three initial observations must be made. First, the Committee itself defines if and when it adopts a general comment. Moreover, the Committee invites States to com67 Jennings and Watts 1992, p. 38. See also Cassese 2003, p. 28. 68 The mandate to issue General Comments is given in E/RES/1987/5, paragraph 9. 69 An author states: “the Committee on Economic, Social and Cultural Rights […] has transformed the supervision system beyond recognition” (Craven 1995, p. 102). He further states that the Committee is “having one of the most developed and potentially effective reporting mechanisms of all the human rights supervising bodies (p. 103). […] The largest problem facing the Committee, however, is posed by the substance of the Covenant itself ” (p. 104). 70 See General Comment No. 5 (rights of persons with disabilities) and No 6. (rights of older persons), reprinted in Eide et al. (eds.) 2001, Annex 2. 71 General Comment No. 3 (Nature of States Parties Obligations) and No. 9 (Domestic Application of the Covenant) are examples, reprinted in Eide et al. (ibid). 72 UN doc. E/2000/22, pp. 102-110, reprinted in Eide et al. (ibid), Annex 2. 73 General Comment No. 1 (Introduction), paragraph 3, UN doc. E/1989/22, p. 87, reprinted in Eide et al. (ibid), Annex 2.
Methodology: Principles and Sources under International Law
ment on draft documents, but does not take instructions from States. Second, the Committee adopts general comment based on a framework that it rather well-established.74 General Comment No. 12 is not a detailed analysis of the different phrases of Article 11. Particularly absent are references to Article 11.2, which is actually the largest part of Article 11. Rather, General Comment No. 12 emphasizes the “…process that States are encouraged to follow.”75 Third, there is no formal endorsement or adoption of the general comments by State parties. The inclusion of references to – and principles developed in – general comments is an appropriate means through which States can confirm or endorse a general comment. Of particular importance is to which extent General Comment No. 12 reflects subsequent State practice and to which extent there is subsequent agreement between the State parties regarding the interpretation. Several endorsements of General Comment No. 12 by the United Nations General Assembly is a strong indication.76 Based on these endorsements, it seems that General Comment No. 12 reflects ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ in the terms of Article 31.3(b)77 of the Vienna Convention on the Law of Treaties.78 The term ‘agreement’ in both paragraphs 31.3(a)79 and 31.3(b) can be understood as ‘common position’. There should be a certain threshold for finding that an agreement is established.80 A unanimous declaration or resolution which confirms the 74 The sections in General Comment No. 12 illustrate this: ‘Introduction and basic premises’; ‘Normative content’; ‘Obligations and violations’; ‘Implementation at the national level’; and ‘International obligations’. 75 Oshaug and Barth Eide 2003, p. 359. Both of these authors were actively participating in the process leading up to the adoption of General Comment No. 12. 76 Several General Assembly resolutions (A/RES/59/202, operative paragraph 17; A/RES/58/186, operative paragraph 15; A/RES/57/226, operative paragraph 17; A/RES/56/155, operative paragraph 13) include an endorsement of General Comment No. 12: “Welcomes the work already done by the Committee on Economic, Social and Cultural Rights in promoting the right to adequate food, in particular its general comment No. 12…” 77 Article 31.3(b) of the Vienna Convention on the Law of Treaties says: “There shall be taken into account, together with the context […] any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.” 78 As will be shown in Chapter 5 below, there are several concepts which General Comment No. 12 applies in order to identify the normative content of the right to adequate food which are not directly derived from the wording of the Covenant. This applies, in particular, to the stronger emphasis on accessibility (see paragraph 8b and 13 of General Comment No. 12), which has evolved during the last few decades (see Sucharitkul 1994, pp. 381-382). Moreover, the issue of cultural or consumer acceptability (see paragraph 11 of General Comment No. 12, which has not been analyzed above, but which is included in General Comment No. 12, has also changed since the 1950s and 1960s. 79 Article 31.3(a) of the Vienna Convention on the Law of Treaties says: “There shall be taken into account, together with the context […] any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions.” 80 In WT/DS58/RW (US – Shrimps, Recourse to Article 21.5 by Malaysia of 15 June 2001), paragraph 5.56, the Panel referred to a 1996 decision in the Committee on Trade and Environ-
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State obligations already established by a treaty must qualify for being ‘an agreement between the parties’. As these resolutions have been adopted with only one consistent objector,81 which is not a party to the Covenant, there is endorsement of General Comment No. 12 among the parties. Formally, as the general comments are not subject to any subsequent formal process of endorsement by States, Article 31.3(a) of the Vienna Convention cannot directly apply. The endorsement of General Comment No. 12 confirms a subsequent State practice in the application of the treaty, in accordance with Article 31.3(b) of the Vienna Convention. Finally, it cannot be excluded that an interpretative statement can be – through subsequent endorsements – considered as a rule in accordance with Article 31.3(c)82 of the Vienna Convention, but there is a high threshold for determining what constitutes a ‘rule’ in international law. There might be different positions regarding which of the categories of Article 31.3 of the Vienna Convention on the Law of Treaties the general comments and their subsequent endorsements fall into. However, as general comments are adopted by the international body with a formal mandate to supervise the Covenant, they are the most authoritative interpretations of the provisions of the Covenant. To the extent that general comments contain interpretative statements, they are relevant materials in the interpretation. It is therefore found that general comments – while not in themselves meeting all the requirements of paragraphs 31.3(a), 31.3(b) and 31.3(c) of the Vienna Convention on the Law of Treaties – can represent useful interpretative material. Guidelines for State reporting: Finally, a document developed for the examination of States’ implementation of the rights recognized in the Covenant will be analyzed. In 1991, the Committee issued a document titled, ‘Revised Guidelines Regarding the Form and Content of Reports to Be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights’.83 These Guidelines give a detailed prescription regarding which information shall be submitted by the ment on multilateral environmental treaties: “However, even if it [the 1996 decision] is not to be considered as evidence of subsequent practice, it remains the expression of a common opinion by Members and is therefore relevant in assessing the scope of the chapeau of Article XX” (emphasis added). 81 The USA has voted against all four resolutions; Israel voted against A/RES/56/155, abstained from the two subsequent resolutions, and voted against A/RES/59/202, the latter also with Palau. Both Israel and Palau are parties to the International Covenant on Economic, Social and Cultural Rights. Moreover, while the US did not vote against the Declarations from the 1996 and 2002 food summits (FAO 1996b and 2002d), a reservation regarding the right to food was subsequently expressed; see Sheff 2002, p. 15; US press conference 10 June 2002; see: <www.state.gov/e/rls/rm/2002/11000.htm>. 82 Article 31.3(c) of the Vienna Convention, says: “There shall be taken into account, together with the context […] any relevant rules of international law applicable in the relations between the parties.” 83 UN doc. E/1991/23, pp. 88-110, reprinted in Eide et al. (eds.) 2001, Annex 1.
Methodology: Principles and Sources under International Law
States parties in their reports, covering all the rights in Part III of the Covenant (Article 6 through 15). The Guidelines provide a detailed outline of the content of the specific rights, as the Committee understands these rights. Furthermore, the Guidelines also identify specific ‘vulnerable or disadvantaged groups’. The Guidelines cannot be presumed to constitute interpretations of the various articles, but they can include interpretative statements which both assist in the State reporting, as a well as serving as interpretative arguments in order to clarify the scope of the rights and corresponding obligations. Hence, the Guidelines enhance the awareness among State institutions, which can have an impact on State practice. In effect, the Guidelines emphasize factors that States shall pay attention to in their reporting. It is therefore found that the Guidelines, as they are issued by the body mandated to monitor the implementation of the Covenant, can be used as an interpretative material, and have certain weight. Inter-governmental documents regarding the right to food: While ‘subsequent agreement between the parties regarding the interpretation’ is a primary means of interpretation, there is no interpretative document on Article 11 of the Covenant which qualifies as falling within the scope of Article 31.3(a) of the Vienna Convention on the Law of Treaties. While there has been no attempt of interpretation of Article 11 by the parties to the Covenant, the adoption of documents resulting from intergovernmental processes have both confirmed and clarified the right to food. The most relevant intergovernmental processes have taken place under the auspices of FAO. Article 11 of the Covenant is explicitly referred to in the most relevant inter-governmental documents resulting from these FAO processes: the ‘Rome Declaration on World Food Security’ and the ‘World Food Summit Plan of Action’,84 and the ‘Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security’ (Voluntary Guidelines).85 A related question is whether these documents could be considered to be materials containing interpretative statements in accordance with paragraphs 31.3(b) and 31.3(c) of the Vienna Convention on the Law of Treaties. As these documents are an outcome of intergovernmental processes, they will be analyzed with regard to whether they can be said to reflect State practice, in accordance with Article 31.3(b), and whether they represent a source of soft law which can be a relevant rule of international law in accordance with Article 31.3(c). There are strict requirements for these two paragraphs to apply. First, regarding paragraph 31.3(b), the term practice is defined as “…a sequence of acts or facts and cannot in general be established by one isolated fact or even by several individual applications.”86 While the adoption of a summit declaration must be considered to be more than ‘one isolated fact or several individual applications’, this is not sufficient to represent ‘subsequent practice’. 84 FAO 1996b. 85 FAO 2004b. 86 Sinclair 1984, p. 137.
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Second, regarding paragraph 31.3(c), the adoption of a non-binding declaration must be considered to fall short of the requirement for being a ‘relevant rule of international law’. Similar to other resolutions from the Commission on Human Rights, as well as the UN General Assembly, declarations are not binding on the parties, and therefore do not represent rules which are applicable between the parties. The 1996 Declaration, adopted by heads of States or governments, must especially be considered as an important source of soft law. This Declaration is therefore interpretative material of certain weight, and to the extent that it contains interpretative statements, it can be included in an elaboration of the content of Article 11 of the Covenant. The 2004 Voluntary Guidelines are nevertheless of importance, as they identify those areas where States have identified particular challenges relating to the realization of the right to food. The status of these documents is hence higher than the resolutions from the Commission on Human Rights and General Assembly, issued twice annually.87 They concentrate on issues arising from the mandate of the Special Rapporteur (see below). Moreover, the latter resolutions reiterate previous resolutions, being of a more political nature. Therefore, these resolutions do not have similar weight. Interpretations from other treaty-based bodies: All United Nations human rights treaty bodies adopt general comments, alternatively general recommendations.88 To the extent that these are relevant for the understanding of human rights or corresponding obligations in general, or the right to food in particular, these interpretations represent interpretative material.89 These General Comments might subsequently be given more weight, depending on endorsements in resolutions or declarations, as well as other indications of State practice. Preparatory work (supplementary means of interpretation): As stated in Article 32 of the Vienna Convention on the Law of Treaties, recourse to travaux préparatoires is done to “…confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 leaves the meaning ambiguous or obscure; or leaves to a result which is manifestly absurd or unreasonable.” The requirements for including travaux préparatoires as interpretative arguments is, as
87 The resolutions from the General Assembly are A/RES/56/155 of 19 December 2001, A/ RES/57/226 of 18 December 2002, A/RES/58/186 of 22 December 2003, and A/RES/59/202 of 20 December 2004; and from the Commission on Human Rights E/CN.4/RES/2001/25, E/ CN.4/RES/2002/25, E/CN.4/RES/2003/25, E/CN.4/RES/2004/19 and E/CN.4/RES/2005/18, respectively. They have been adopted with an overwhelming majority. 88 The Committee on the Elimination of Discrimination against Women and the Committee on the Elimination of Racial Discrimination adopt general recommendations. 89 The Human Rights Committee has issued 31 general comments, many of which are of relevance also beyond the interpretation of the International Covenant on Civil and Political Rights. The Committee on the Rights of the Child has issued four general comments, of which none relate to Article 27 on an adequate standard of living.
Methodology: Principles and Sources under International Law
a minimum, that the material is complete, public and accessible,90 and that it point to a definite legal intention. The International Court of Justice stated in its early years that “…it should not deviate from the consistent practice of the Permanent Court of International Justice, according to which there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself.”91 Both the drafting of the Universal Declaration of Human Rights and of the International Covenant on Economic, Social and Cultural Rights will be analyzed in order to clarify the meaning of the Covenant’s Articles 11 and 15, with a clear acknowledgement of the limitations of such supplementary interpretative material. The teachings of highly-qualified publicists (supplementary means of interpretation): While Article 38.1(d) of the Statute of the ICJ says that the ICJ shall apply teachings of highly-qualified publicists, this interpretative material is not confirmed in the Vienna Convention on the Law of Treaties. While this gives a reason for caution, such teachings are generally recognized. Bearing in mind this caution, this study will identify the most important processes and resulting documents for the understanding of economic, social and cultural rights and corresponding obligations. The documents adopted at the two expert meetings of 1986 and 1997, the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, respectively,92 have given new understanding of both the content of the rights, as well the nature of these rights. The Limburg Principles were reported back to the Commission on Human Rights,93 unlike the Maastricht Guidelines, but both have a certain weight due to the high number of recognized experts who took part in them, and the subsequent general acceptance of their basic content.94 These two documents are developed by conscious elaboration of recognized experts, and must therefore be acknowledged as interpretative material. Of importance is also whether the reports by the Special Rapporteur on the right to food, Jean Ziegler, reporting annually to the Commission on Human Rights and the General Assembly, represent ‘teachings of highly-qualified publicists’. The mandate of the Special Rapporteur is derived from Article 11 of the Covenant. His reports must be considered as having a certain status, as they represent the fulfillment of his mandate. 90 While detailed minutes are taken in the United Nations, this is not done in the WTO. Therefore, the most important preparatory work in the WTO, the draft texts at various stages, are accessible. The ‘Communications’ from different States are public only if these States decide so. 91 ICJ Reports 1948 (Admission of a State to the United Nations), p. 63. 92 Compiled in Eide et al. (eds.) 2001, Annex 3. 93 E/CN.4/1987/17, Annex. 94 The main distinction is that the Limburg Principles appear as a more restrictive interpretation of the Covenant, while the Maastricht Guidelines seem more academic and represent a more expansionist interpretation, implying that the former is more generally accepted between States.
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The reports are thought-provoking and clear, but appear to be more political documents than ‘legal teachings’ in accordance with Article 38.1(d) of the Statute of the ICJ. His reports,95 however, tend to lead to adoption of resolutions on the right to adequate food, which have contributed to an increased awareness of the right to food, including factors affecting the realization of the right to food. The two studies on the right to food, undertaken with a mandate from the SubCommission for the Promotion and Protection of Human Rights, in 1987 and 1999, 96 must be mentioned. They were both written by Asbjørn Eide, and represent, to a larger extent, a legal clarification of what is implied by the right to food. Particularly, the first report represents a landmark in the precise understanding of the right to food, specifically by outlining the three levels of State obligations (respect, protect, fulfill), on which subsequent analysis of human rights are based. Independent of whether these studies fulfill the requirements for being considered as ‘teachings of highly qualified publicists’, the first study will particularly be included in the analysis. On the other hand, the three expert consultations, held in 1998, 1999 and 2001,97 mandated by Objective 7.4 of the Plan of Action from the World Food Summit in 1996 (see above), are not legal clarifications of the right to food. Reasonableness (supplementary means of interpretation): There can be a recourse to reasonableness in order to confirm or determine a meaning of a term. While it is difficult to find one generally accepted definition of ‘reasonableness’,98 this term must be understood to exclude any interpretations which are contrary to the object and purpose of the treaty. Human rights treaties seek to protect the inalienable human rights of everyone. Protection of the human rights of everyone must be considered to be a ‘vital matter’99 unlike treaties providing for the exchange of reciprocal benefits and obligations.100 In any analysis of the relationship between human rights treaties and other treaties of an economic or technical character, it must be asked how to best achieve protection of the rights of the human person. Article 60.5 of the Vienna Convention on the Law of Treaties must be considered to be of particular importance in any analysis of the relationship between a human rights treaty and any other treaty. The paragraph reads: Paragraphs 1 to 3 [on termination or suspension of the operation of a treaty as a consequence of its breach] do not apply to provisions relating to the protection of the human person con-
95 The reports are to the General Assembly: A/56/210 (UN 2001b), A/57/356 (UN 2002), A/58/330 (UN 2003b) and A/59/385 (UN 2004b), and to the Commission on Human Rights: E/CN.4/2001/53, E/CN.4/2002/58, E/CN.4/2003/54, E/CN.4/2004/10 and E/CN.4/2005/47. 96 E/CN.4/Sub.2/1987/23 and E/CN.4/Sub.2/1999/12, respectively. 97 The three reports from the three consultations are found in the following documents from Commission on Human Rights: E/CN.4/1998/21, E/CN.4/1999/45, E/CN.4/2001/148. 98 Fauchald 1996, p. 102. 99 Yearbook of the International Law Commission 1966 Vol. II, p. 217, paragraph 13. 100 This will be more elaborated upon in Chapter 11.3.3.
Methodology: Principles and Sources under International Law
tained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties (emphasis added).
This paragraph will be applied in Chapter 11.3.3 below in order to contribute to the analysis on how to solve a conflict between a human rights treaty and an international economic law treaty. The protection of the human person, which is the object and purpose of a human rights treaty, is the context in which specific human rights provisions must be interpreted. Final observations: Based on the analysis above, it seems clear that there is much interpretative material that can be applied in an interpretation of the relevant provisions of the Covenant. Not all of this interpretative material will be of the same relevance, however. This book will concentrate strictly on that interpretative material that has contributed to clarifying the rights and corresponding obligations. When it comes to weight, some of the interpretative material that is supplementary means of interpretation, such as general comments, can subsequently have increased weight, due to State endorsement and the impact of these documents on State practice. 3.3
Interpretative Material under the WTO
3.3.1
In General Concerning the WTO
A primary function of the WTO is to work for ‘the elimination of discriminatory treatment in international trade relations’.101 The WTO administers agreements within three areas: trade in goods, trade in services and intellectual property rights.102 The two last ones came out of the negotiations within the Uruguay Round, while trade in goods was the scope of the GATT Agreement of 1947. In contrast to previous agreements from the former trade rounds, all agreements of the Uruguay round bind all WTO member States. The WTO confirms two basic principles: national treatment and most-favoured nation. The first principle aims at preventing discrimination of foreigners; hence, a foreigner applying for patent protection shall be treated equal to a national applicant. The second principle implies that the same treatment regarding intellectual property protection shall be given to applicants from all WTO member States. In contrast with other international treaties, WTO has a dispute settlement mechanism allowing for payment of compensation or suspension of concessions in case of non-compliance with decisions from the Dispute Settlement Body. This gives WTO member States strong incentives to actually comply with the WTO requirements. This mechanism was also in place before the WTO was established in 1994, but its char-
101 Preamble to the Agreement Establishing the WTO. 102 To this list can also be added treaties regulating discrimination in public procurement and investment. WTO presently administers 19 multilateral agreements, and new agreements were expected to come out of the so-called “Doha Development Round”.
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acter has changed to be more judicial and less diplomatic.103 The Dispute Settlement Understanding (Annex 2 to the WTO Agreement) is an agreement regulating disputes, and affected States are “…entitled to participate actively in the panel procedure.”104 Other entities can also submit information, but the practice of submitting amicus curiae briefs is disputed.105 Any appeal of the decision of the Dispute Settlement Panel will be brought to the Appellate Body, which is a standing body consisting of international law experts. The two main decision-making bodies of the WTO are the Ministerial Conference, meeting approximately every second year, and the General Council, meeting twice a year. Both are mandated to interpret the WTO agreements, in accordance with Article IX:2106 of the WTO Agreement. The General Council receives reports from the various committees, acts as the Trade Policy Review Body,107 and – acting as the Dispute Settlement Body – formally adopts recommendations and rulings based on the reports produced by dispute settlement panels and the Appellate Body. There are several other bodies responsible for the supervision of the implementation of the agreements recognized in Annex 1 of the WTO Agreement. Of most relevance in the context of this study is the TRIPS Council, as well as the Committee on Trade and Environment and the Committee on Agriculture, the latter with an emphasis on whether the right to food has been recognized. 3.3.2
The Relevant WTO Interpretative Material
Based on the list of interpretative material found in Chapter 3.1.1, this section will analyze the relevance and weight of the following WTO interpretative material: – the wording of the TRIPS Agreement, especially the articles on ‘Patents’; – the provisions of the WTO Agreement, GATT Agreement and the Dispute Settlement Understanding (DSU – found in Annex 2 of the WTO Agreement); – interpretative statements, particularly whether the declarations adopted at the Doha Ministerial Conference can be considered to be interpretations, as well as documents by the TRIPS Council and other supervisory bodies; – customary law; 103 See Fauchald 1996, p. 89: “The dispute settlement system that emerged from the Uruguay Round is far more court-like than the one under GATT 1947.” See also de Feyter 2001, p. 95: “The GATT dispute settlement system was diplomatic rather than judicial in nature.” 104 Dispute Settlement Understanding Article 10.2. 105 Amicus curiae means “friend of the court”, and the briefs might be considered by the dispute settlement panels or the Appellate Body if they so decide. Whether or not to consider these briefs is exclusively decided by the two bodies, in accordance with Article 13 (‘Right to Seek Information’) of the Dispute Settlement Understanding. 106 Article XI:2 reads (extracts): “The Ministerial Conference and the General Council […] shall exercise their authority on the basis of a recommendation by the Council overseeing the functioning of that Agreement.” 107 The Trade Policy Review Body shall undertake assessments of State parties’ trade policies and practices, based on regular reporting, in accordance with the Trade Policy Review Mechanism€(Annex 3 to the WTO Agreement).
Methodology: Principles and Sources under International Law
– – – – –
general principles of law; recommendations and rulings from the Dispute Settlement Panel and Appellate Body (supplementary means of interpretation); the preparatory works related to the TRIPS Agreement (supplementary means of interpretation); teachings of highly qualified publicists (supplementary means of interpretation); reasonableness (supplementary means of interpretation).
The TRIPS Agreement: The provisions of the TRIPS Agreement establish minimum standards to which WTO member States must comply. The emphasis will be on Part II, Section 5 of TRIPS, establishing substantive standards for patents. The WTO Agreement: TRIPS is included in Annex 1C of the WTO Agreement. While all WTO agreements are international treaties in their own capacity, they also constitute the context in which other WTO agreements must be understood. This is clear in Article 31.2 of the Vienna Convention, which states: The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
The WTO Agreement represents a ‘single undertaking’. Therefore, all agreements that were annexed to the WTO Agreement must be understood in light of the other agreements.108 In line with the rules for interpretation of public international law, both the provisions of the WTO Agreement, including the preamble,109 and other WTO agree108 GATT 1994 is particularly relevant as interpretative material which can be applied in order to interpret TRIPS provisions. First, GATT 1994 is based upon GATT 1947, which is the ‘original’ agreement. Second, GATT 1994 is the WTO agreement which has the most explicit provisions on exceptions, related to the taking of measures. GATT 1994 Article XX reads (extracts): Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary and unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures: (a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health; […] (g) relating to the conservation of exhaustible natural resources…
109 The WTO Preamble reads (extracts): …relations shall be conducted with a view to raising standards of living, ensuring full employment […] protect and preserve the environment and to enhance the means for doing so in a
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ments, can be applied as an interpretative material in order to clarify provisions of the TRIPS Agreement. Furthermore, in the event of any conflict between any of the WTO agreements (Annexes to the WTO Agreement), the conflict shall be resolved in favor of the WTO Agreement in accordance with Article XVI:3 of the WTO Agreement: In the event of a conflict between a provision of this Agreement and a provision of any of the Multilateral Trade Agreements, the provision of this Agreement shall prevail to the extent of the conflict.
This emphasizes that the WTO Agreement constitutes a relevant interpretative material that is given a particular weight by the WTO Agreement itself. Interpretative statements: There are two WTO organs which are given the exclusive authority to adopt interpretations: the General Council and the Ministerial Conference, in accordance with Article IX:2 of the WTO Agreement. Interpretations adopted pursuant to this paragraph are authoritative interpretations. It seems obvious, however, that any interpretation from a Ministerial Conference is more important. The Fourth Session of the Ministerial Conference, held in Doha in November 2001, was the first of the Ministerial Conferences that addressed questions relating to TRIPS. In the Declaration on TRIPS and public health, the States emphasized that “…all TRIPS provisions shall be understood in light of its object and purpose…”.110 The Doha Ministerial Declaration mandated a review of TRIPS by taking “…fully into account the development dimension.”111 While the main part of the Doha Ministerial Declaration is the ‘Work Programme’,112 the Declaration on TRIPS and public health goes more into detail with regard to certain provisions of TRIPS. For the purpose of interpretation, the latter contains interpretative statements, and has therefore more relevance for the purpose of this book. There are two different positions regarding how one shall understand the Declaration on TRIPS and public health. The first position says that the Declaration is an ‘authoritative interpretation’ of TRIPS.113 The second position argues that the adoption of a Declaration cannot be considered similar to the practice of ‘adopting interpretations’
110 111 112 113
manner consistent with [developing countries’] respective needs and concerns at different levels of economic development. […]…there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development.
Chapter 3.1.3 above found that traditionally the purpose of a treaty is expressed in its preamble. WT/MIN(01)/DEC/W/2, paragraph 5(a). WT/MIN(01)/DEC/W/1, paragraph 19. WT/MIN(01)/DEC/W/1, paragraph 12 through 44. See Pires de Carvalho 2005, p. 32, and Shanker 2002, p. 763.
Methodology: Principles and Sources under International Law
in accordance with Article IX:2114 of the WTO Agreement.115 This position is based on the fact that Article IX:2 of the WTO Agreement establishes certain procedural requirements which must be fulfilled in order to constitute an interpretation, and these requirements were not fulfilled in the case of the two declarations from the Doha Ministerial Conference. Moreover, Article IX:2 of the WTO Agreement refers to ‘decision to adopt an interpretation’, and does not use the term ‘declaration’. Finally, both the title ‘Declaration’ and the content of the declaration indicate that the declaration is only a soft law document. It should furthermore be noted that the Ministerial Conference did not refer to Article IX.2 in the discussion regarding the Declaration on the TRIPS Agreement and Public Health. Therefore it must be presumed that the delegations did not intend to adopt an interpretation, in accordance with Article IX:2. In a formal sense, therefore, the Declaration does not constitute an interpretation. The intention of the Declaration on the TRIPS Agreement and Public Health, however, must be understood as clarifying specific provisions of TRIPS with regard to how these provisions shall be interpreted and applied. Therefore, while not constituting an interpretation in the strict sense, based on Article IX:2 of the WTO Agreement, the Declaration is a clarification and confirmation of important principles. We will now turn to an analysis of whether the Declaration on the TRIPS Agreement and Public Health is a ‘subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’ in accordance with the Vienna Convention on the Law of Treaties Article 31.3(a). Such subsequent agreements shall be taken into account in the interpretation of the treaty. As found in Chapter 3.2.2, analyzing general comments, the term ‘agreement’ can be understood as wider than merely a formal, judicial agreement. It was found that a declaration or resolution which reconfirms and even strengthens State obligations must be understood to be such an agreement, particularly if such resolution or declaration also reflects new State practice, in accordance with Article 31.3(b) of the Vienna Convention on the Law of Treaties. Article IX:2 of the WTO Agreement, however, is lex specialis in relation to Article 31.3(a) of the Vienna Convention on the Law of Treaties, on ‘agreement regarding interpretation’. Article 31.3(a) does not require certain procedures in order to qualify for being considered a ‘subsequent agreement’.116 While the WTO Agreement lists certain procedures, which were not appropriately followed in this specific case, the Declaration on the TRIPS Agreement and Public Health nevertheless meets the requirements for being considered a ‘subsequent agreement’. Therefore, the content of the Declaration adequately represents an agreement between the parties regarding the interpretation of the treaty or the application of its provisions.117 The Declaration confirms and reiterates important TRIPS 114 Article XI:2 reads (extracts): “The Ministerial Conference and the General Council […] shall exercise their authority on the basis of a recommendation by the Council overseeing the functioning of that Agreement.” 115 Charnovitz 2002a, p. 208, and Pauwelyn 2003c, p. 47. 116 Wolfrum and Matz 2003, pp. 140-141. 117 See also Abbott 2004, p. 445, finding that the Doha Declaration “…authoritatively interpret…” TRIPS.
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provisions, emphasizes certain provisions relevant for developing countries, and grants the least-developing country a longer period before TRIPS shall be applied, with regard to pharmaceutical inventions. Also if the Declaration is considered to be primarily a political document, this does not per se reduce its application as a basis for the taking of legal measures, including amending national legislation.118 There are several other bodies mandated to supervise the implementation of the respective agreements, including the Council on TRIPS. These are not given a mandate to interpret any agreement. To the extent that their reports address TRIPS provisions, and contain interpretative statements, however, they are relevant. The weight of documents from these bodies will be determined by whether they express an ‘agreement between the parties regarding the interpretation of the treaty’. A document from a large number of States which outlines these States’ understanding of a particular TRIPS provision does not represent ‘agreement between the parties’ if several other States object to these understandings. On the other hand, a unanimously adopted document resulting from the deliberations in such bodies, must be considered to represent an ‘agreement’. If such a document addresses specific provisions of TRIPS, this can represent interpretative material of certain weight. Customary law: The principle of prohibition of non-justifiable and arbitrary discrimination between national and foreign goods has been the essence of the WTO, and GATT before it. Rulings from international courts stating that this has become a principle of international customary law have not been found. As the provisions of WTO agreements are specific and detailed, it is not necessary to turn to customary law. General principles of law: WTO adheres to the general principles of international law. General principles of law are, however, difficult to identify for the purpose of this study.119 This book will not elaborate on general principles of law, but such principles can fill the gaps left by an interpretation of treaty terms. Decisions based on the Dispute Settlement Understanding (supplementary source of interpretation): First, it is important to analyze the consequences of the fact that judicial decisions are only supplementary interpretative material. In one of the first cases decided by the new WTO dispute settlement system, the Appellate Body stated: “We do 118 The amendment of national legislation is enacted in accordance with the subsequent ‘30 August 2003 Decision’ (WTO 2003), which is based on paragraph 6 of the Declaration. 119 Brownlie 2003, p. 275-277 identifies the precautionary principle as an ‘emergent principle of law’. While this principle could be interesting to analyze in the context of patenting under the TRIPS Agreement, the WTO cannot be said to have accepted this (see EC – Hormones (WT/DS26/AB/R – brought by USA, and WT/DS48/AB/R – brought by Canada, paragraph 123). Article 5.7 SPS says that particularly measures of a precautionary nature can be taken if ‘relevant scientific evidence is insufficient’ and provided that the State ‘shall seek to obtain the additional information within a reasonable period of time’. Moreover, the text of the relevant TRIPS paragraph in the context of precautionary principles, namely 27.2, is detailed and the scope of this paragraph is narrow.
Methodology: Principles and Sources under International Law
not believe that the CONTRACTING PARTIES, in deciding to adopt a panel report, intended that their decision would constitute a definitive interpretation of the relevant provisions of GATT 1947. Nor do we believe that this is contemplated under GATT 1994.”120 The Appellate Body found, however, that adopted panel reports “…create legitimate expectations among WTO Members, and, therefore, should be taken into account where they are relevant to any dispute. However, they are not binding, except with respect to resolving the particular dispute between the parties to that dispute.”121 This statement, which declares both that the reports are neither ‘definite interpretations’ nor ‘binding, expect from solving the particular dispute’ indicates that one should not consider the reports to be more than just this: a clarification of the respective agreements in order to solve a conflict between two or more of its parties. It must also be noted that the legal reasoning in reports from the panels and Appellate Body are predominantly based on previous reports.122 As noted by two authors: “Other than the texts of the WTO Agreements themselves, no source of law is as important in WTO dispute settlement as the reported decisions of prior dispute settlement panels.”123 These reports, in the words of three authors, represent ‘pursuasive power’.124 If there is a departure from previous reports, this should be sufficiently explained.125 One author finds after studying several rulings related to TRIPS: “…the interpretation of the TRIPS Agreement should be ‘guided’ by the jurisprudence [of the dispute settlement system], but it is not bound by it.”126 The clarification of the existing provisions of the multilateral trade agreements (‘covered agreement’127) is the mandate of the dispute settlement system.128 As is the case in all legal proceedings, these legal provisions must be applied to the facts of the case before it. The mandate of the Appellate Body is more limited than that of the Panel, saying that it “may uphold, modify or reverse the legal findings and conclusions of the Panel.”129 The Appellate Body is therefore not mandated to consider facts. The Panel or Appellate Body can only make recommendations, as stated in the Dispute Settlement Understanding Article 19.1:
120 Japan – Taxes on Alcoholic Beverages (WT/DS8/AB/R), p. 13. 121 Ibid, p. 15. 122 Note, however, the Panel’s ruling in the second India – Patents case (WT/DS79/R),paragraph 7.30, stating that “…panels are not bound by previous decisions by panels or the Appellate body even if the subject-matter is the same.” 123 See Palmeter and Mavroidis 1998, p. 400, and Jackson 1997, pp. 121-122. 124 Matsushita et al. 2003, p. 59. 125 Ibid, p. 60: “The need to justify departures from prior cases is key for an international adjudicating body in its quest for legitimacy.” 126 Cattaneo 2000, p. 670. 127 A ‘covered agreement’ refers to one of the 19 WTO agreements. 128 See Article 3.2 and 7.2 of the Dispute Settlement Understanding. 129 Dispute Settlement Understanding Article 17.13 (emphasis added).
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Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement.
The formal decisions regarding cases brought before the dispute settlement system are taken when the General Council meets as the Dispute Settlement Body (DSB). The DSB makes decisions on the basis of Panel or Appellate Body reports and recommendations. If a panel or the Appellate Body find that a specific State practice is inconsistent with the ‘covered agreements’ as these agreements are interpreted, the Dispute Settlement Body has the competence to adopt the ruling and to request that the policy is changed in order to be in compliance with these agreements. The recommendations and rulings from the dispute settlement system will most often result in changed policies, as the threat of compensation or suspension of concessions – termed ‘temporary measures’ – is provided for in the DSU Article 22. Compensation, however, has only taken place four times since the establishment of the WTO.130 The position of the dispute settlement system (Dispute Settlement Panels, Appellate Body and Dispute Settlement Body), gives such judicial decisions a particularly important role in the WTO system. The understanding of the Dispute Settlement Panel is that “[t]he rules that govern the interpretation of WTO Agreements are the rules of treaty interpretation stated in Articles 31 and 32 of the Vienna Convention.”131 The basic principle is that the dispute settlement system’s rulings apply directly only to the parties to the dispute, and that it cannot ‘add to or diminish the rights and obligations provided in the covered agreements’, in accordance with Article 3.2 of the Dispute Settlement Understanding (DSU). A ruling regarding one State cannot be used against another State which was not party to a dispute, even if this State applies similar measures. Therefore, a decision of a panel or Appellate Body does not represent a general clarification of WTO law, but only a clarification of rights and obligations under the WTO agreements as they apply to the specific case brought before the dispute settlement system. In disputes before the WTO dispute settlement system, the State which brings the case before the system (the complaining party) has the burden of proof for convincing the panel that there is a violation of a provision in one of the agreements. If the measure undertaken by the responding (defending) party is found neither to be compatible with the relevant covered agreement, nor based on an international agreement or standard, the burden of proof shifts to the defending party for justifying this measure.132 In other words, if the complaining State succeeds in establishing a case of violations, the burden 130 The four are: EC – Bananas (WT/DS27), EC – Hormones (WT/DS26 and WT/DS48), US – Tax treatment for ‘foreign sales corporations’ (WT/DS108) and Canada – Export of aircrafts (WT/DS70 and WT/DS71). 131 Canada – Patents (WT/DS114/R), paragraph 7.13. 132 See EC – Hormones (WT/DS/26/R, brought by US, and WT/DS48/R, brought by Canada), paragraphs 8.87 and 8.90, respectively: “once the complaining party provides a prima facie case (i) that there is an international standard with regard to the measure in dispute, and (ii)
Methodology: Principles and Sources under International Law
of proof shifts to the responding State.133 It is the complaining party, however, which must initially prove that the exception is not in compliance with the obligations.134 A panel shall examine, however, “…whether the measure is nevertheless justified.”135 This application of the rules is termed by an author as a ‘bipolar approach’,136 claiming that such an approach is the only appropriate in a situation in which one party seeks to prove that a measure constitutes a violation, while another party seeks to prove that the measure is justifiable. While the dispute is related to the disputed measures, the scope of the clarification is determined by the claims presented by the parties to the dispute.137 Moreover, there must be a clear distinction between claims and arguments. The Panel must base its findings on the claims presented by the parties, and cannot make any examinations not covered by these claims (non ultra petita). Notwithstanding Article 7 of the Dispute Settlement Understanding (DSU), the Panel can apply and develop its own arguments in the examination of the claims.138 Moreover, the Appellate Body has stated: “Nothing in [Article 11 of the DSU] or in previous GATT practice requires a panel to examine all legal claims made by the complaining party.”139 Rather, the examination is limited to those issues considered necessary to resolve the matter between the parties.140 Previous dispute settlement reports can contain relevant interpretative statements on certain provisions or terms, and can therefore be used as interpretative material. When
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135 136 137
138 139 140
that the measure in dispute is not based on this standard, the burden of proof under Article 3.3 [of the SPS Agreement] shifts to the defending party.” The complaining State has to make a prima facie case of violations of the relevant provisions; see principles derived from reports in WT/CTE/W/203 paragraph 6; see also paragraphs 7 and 8. Six pre-WTO cases and three WTO cases are discussed in WT/CTE/W/203. Note that Article XX(a) is not considered in WT/CTE/W/203, while Article XX(d) (‘measures necessary to secure compliance’) is considered. EC – Tariff Preferences Appellate Body report (WT/DS246/AB/R), paragraph 88: “It is thus for the complaining€party to raise a claim with respect to a particular obligation and to prove€that the responding party is acting inconsistently with that obligation. It is for the responding party, if it so chooses, to raise a defence in response to an allegation of inconsistency and to€prove that its challenged measure satisfies the conditions of that defence.” The burden of proof shifts to the responding State for justifying its measures (US – Gasoline Appellate Body report (WT/DS2/AB/R), p. 22). EC – Tariff Preferences Appellate Body report (WT/DS246/AB/R), paragraph 101. Pauwelyn 1998, p. 241. The claims presented by the responding party can also be based on its obligations under other treaties, in accordance with Article 3.2 of the DSU, which is understood to include taking into account other treaties, as provided for in Article 31.3(c) of the Vienna Convention on the Law of Treaties (see Chapter 3.1.4). Observe, however, that the ILC finds that “…there would be no room to turn to other rules of international law unless the treaty itself gave rise to a problem in its interpretation” (UN 2004, p. 300, paragraph 347). EC – Hormones (WT/DS/26/AB/R) paragraph 156. US – Shirts and Blouses (WT/DS/33/AB/R), p. 18 (Chapter VI: Judicial economy). The Panel will therefore not examine the relationship with other provisions if it already “… found that a measure was inconsistent with a particular provision…” (ibid).
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identifying the weight of these reports, the following must be borne in mind: on the one hand, they are binding only to the particular dispute, and do not represent definitive interpretations. Moreover, they formally constitute only supplementary means of interpretation. On the other hand, previous reports are frequently used as interpretative material by the adjudicating bodies. The Appellate Body reports have more weight than reports from dispute settlement panels. More emphasis will therefore be given to these reports. When a relevant provision has been addressed by a panel only,141 this report is included in the analysis. The WTO has established itself as important for adjudication between States, based on provisions of the WTO agreements. However, neither panels nor the Appellate Body have considered whether provisions of a WTO agreement affects “…action that a human rights treaty conversely prohibits or mandates.”142 Preparatory work (supplementary means of interpretation): There are no official records of the WTO negotiations, but the negotiations can be followed through the various ‘Communications’ by different States. Especially interesting is the fact that developing countries that were positive to launch negotiations on trade-related intellectual property issues had substantially different intentions than the industrialized States, particularly the USA, acting as the demandeurs in the negotiations.143 Some proposals from developing States were actually included in the final text,144 but most were not accepted.145 In general, one should be very careful not to place too much emphasis on the WTO travaux préparatoires, as the legal intentions were highly different between the negotiating States.146 Moreover, there is no evidence that the Appellate Body has paid much attention to travaux préparatoires in its clarification of the relevant provisions. The amount of interpretative material implies that a recourse to travaux préparatoires is not necessary. Such preparatory work is therefore of limited weight.
141 See Canada – Pharmaceuticals (WT/DS114/R). 142 Marceau 2002, p. 792. See more on conflicts between treaties in Chapter 11.1 below. 143 Brazil stated that the mandate of the TRIPS negotiating group was to discuss ‘rigid and excessive use of IPRs’ and ‘abusive use of IPRs’, as well as the relation to trade distortions and restrictions as well as access to technology through obligations of IPR owners; see GATT 1988 (MTN.GNG/NG11/W/30). In 1989, the negotiations changed character, based on the inclusion of the phrase ‘adequate standards’ in the mandate for the negotiations (see GATT 1989a). 144 Watal 2001, p. 43 identifies the following articles over which developing countries had some influence: 6, 7, 8, 13, 29, 30, 31, 32, 40 and 41, most of which are ‘exceptions’. 145 It should be observed that a proposal from developing States (GATT 1990c, p. 9) sought to identify ‘an invention capable of being used for the preparation or production of food or medicine’ as falling within the scope of the ‘limited exceptions’ provision of TRIPS (Article 30), without success. 146 Pires de Carvalho 2005 finds the subsequent rulings and recommendations are more important than preparatory work for interpreting the TRIPS Agreement.
Methodology: Principles and Sources under International Law
The teachings of highly-qualified publicists (supplementary means of interpretation): As one author observes: “[m]ost of the highly qualified publicists in GATT law have also either served as panelists or currently sit on the roster for panelists, and could therefore directly influence GATT/WTO jurisprudence.”147 Unlike the reference to previous reports from panels and Appellate Body, reports from the dispute settlement system do not, in general, refer to teachings of highly qualified publicists. These teachings, when they are used, can influence the interpretation of the relevant provision. In most cases, however, such references are used mostly for the purpose of confirming an interpretation which has already been reached.148 This interpretative material therefore has limited weight. Reasonableness: The issue of reasonableness in interpretation and application of WTO agreements is not definite and clear. The principle could imply certain deference to the national legislation and regulations, provided that the national regulations do not represent arbitrary or unjustifiable discrimination which are themselves contrary to the WTO agreements, such as TRIPS.149 The principle of reasonableness could also be interpreted to include the development dimension expressed in the preamble to the WTO Agreement in the application of the specific WTO agreements.150 The principle of reasonableness can represent interpretative material, but due to the very detailed provisions of the WTO agreements, the interpretation of these provisions is usually done without including the principle of reasonableness. Final observations: In addition to the formal status of the two Doha Declarations, more precisely whether they constitute interpretations in the strict term of Article IX:2 of the WTO Agreement, the most interesting issue as regards WTO interpretative material is the status of the reports from the dispute settlement panel and Appellate Body. The reports from the Appellate Body in particular represent important interpretative material, and one must “…justify departures from prior cases.”151 For the purpose of this study, 147 Cattaneo 2000, p. 677. In the first years of the DSU, there was a tendency to “…refer to the teachings of highly qualified publicists in justifying their reports.” (see Palmeter and Mavroidis 1998, p. 408). They identify one panel report (WT/DS56/R: Argentina – Footwear) and two Appellate Body reports (WT/DS50/AB/R: India – Patent Protection; WT/DS26/AB/R (USA) and WT/DS48/AB/R (Canada): EC – Hormones), with a total of seven references to legal scholars – all in footnotes. 148 See the reports identified ibid. 149 Such ‘deferential reasonableness’ is based on societal or public policy concerns as included in Articles 7 and 8 of the TRIPS Agreement. Maskus and Reichman 2004 p. 308, understand Article 8.1 and the TRIPS preamble to imply that “…the implementation of international IP standards is necessarily limited by criteria of reasonableness. These standards, as implemented, must not become disguised barriers to the exercise of those other police and welfare powers that are normally reserved to states.” On p. 307, they hold that “…states cannot be presumed to have surrendered sovereign police and welfare powers in the course of intellectual property standard setting…” 150 Qureshi 2003, finding particular support in US - Shrimps (WT/DS58/AB/R). 151 Matsushita et al. 2003, p. 60.
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these reports are of importance for identifying how some of the provisions of the TRIPS Agreement are interpreted. It must be observed, however, that many central TRIPS provisions have not been brought up before the dispute settlement system. 3.4
Interpretative Material under the UPOV Convention
The international conventions that are considered as meeting the requirements of the TRIPS Agreement of ‘effective sui generis’ protection of plant varieties152 are the 1978 and 1991 Acts of the UPOV Convention. 3.4.1
In General Concerning UPOV
The International Union for the Protection of New Varieties of Plants (UPOV) is located on the same premises as the World Intellectual Property Organization (WIPO) in Geneva. The Secretary-General of WIPO is also Director-General of UPOV. Unlike WIPO, UPOV is not a part of the UN system. The drafting of the original Act of the UPOV Convention was initiated after intellectual property and breeders’ associations had considered how the results of their breeding efforts best could be protected. At the Congress of the AIPPI (International Association for the Protection of Industrial Property) in 1952, a general decision was taken on the need to protect plant varieties. The breeders agreed at the 1956 Congress of the International Association of Plant Breeders (ASSINSEL – presently International Seed Federation, ISF),153 that patent protection was not appropriate. The Congress therefore called upon the government of France to organize a meeting which could elaborate on alternative forms of protection than protection through patents. The International Conference for the Protection of New Varieties of Plants met accordingly, resulting in the 1961 UPOV Convention. UPOV has since adopted three subsequent acts of the UPOV Convention, with the latest from 1991 being the most ‘patent-like’. Since it entered into force in 1998, only this Act is open for accession by new States. The requirements for obtaining protection in accordance with the UPOV Convention are not the same as those for patent rights, and the rights conferred are not as exclusive as with patent rights. Two other observations are also important to mention before presenting the plant breeders’ rights as understood by UPOV. First, to become a party to the Convention, the national legislation must be in conformity with UPOV requirements. The UPOV Secretariat, as well as the Council and three committees,154 provide advice in this process.155 The Consultative Committee analyzes the legislation and gives a recommendation to the Council, which then makes the final decision on accession. Second, a State can 152 153 154 155
TRIPS Article 27.3(b). By merging International Seed Trade Federation (FIS) and ASSINSEL. Consultative Committee, Technical Committee and Administrative and Legal Committee. UPOV 1978 Article 32.3; UPOV 1991 Article 34.3. The Council approves the legislation of the State seeking membership, and this might take years; on Malaysia’s process, see: <www.upov. int/en/documents/c_extr/22/c_extr_22_3.pdf>.
Methodology: Principles and Sources under International Law
adopt a sui generis legislation for the protection of plant varieties without necessarily becoming a party to UPOV. Initially, it must also be observed that the principle of reciprocity of the UPOV Convention as applying to UPOV members only is contradictory to the WTO Agreement.156 This study strictly analyzes UPOV in relation to the provision of TRIPS Article 27.3(b) on an ‘effective sui generis system’ for protecting plant varieties, in other words, the requirements of protection in accordance with TRIPS. 3.4.2
The Relevant UPOV Interpretative Material
Based on the list of interpretative material found in Chapter 3.1.1, this section will analyze the relevance and weight of the following UPOV interpretative material: – the wording of the 1978 Act and 1991 Act of the UPOV Convention; – decisions or recommendations regarding national legislation and requests for UPOV membership, based on strict interpretation of the UPOV Convention; – international customary law; – general principles of law; – reasonableness (supplementary means of interpretation). The UPOV Convention: The UPOV Convention is detailed, both in setting out the conditions for protection and in defining the content of the rights and the exceptions to these rights. As an international treaty with mechanisms for compliance, the weight of the UPOV Convention is undisputed. Several authors have identified the differences between the 1978 and the 1991 Acts of the UPOV Convention, with the latter allowing for less flexibility for the farmers and stronger rights for the holders of protected plant varieties.157 Both treaties are compatible with the requirements of Article 27.3(b) of TRIPS, and they are relevant for the purpose of this study. While there is presently no other option for new accessions to UPOV than to adopt national legislation in conformity with the 1991 Act, the States that do not intend to become UPOV members should study the provisions of the 1978 Act if they intend to draft plant variety legislation. It is generally agreed that this Act allows for more flexibility in determining the exclusive rights of the right holder.158 Most developing countries, which are presently UPOV members, have had their legislation approved in accordance with the 1978 Act. The two Acts outline the minimum standards for national legislation on plant variety protection. Interpretations: There are no court-like procedures in UPOV, neither are there any clear procedures for adopting interpretations. Interpretative documents are occasionally is156 To be in compliance, a State’s plant variety legislation must include a provision on national treatment and most-favoured nations principles which apply to all WTO member States. 157 See Verma 1995 for an analysis focusing particularly on developing counties. 158 Greengrass 1994, p 56, paragraph 7, states: “The structure of the 1978 Act was fundamentally revised in the new [1991] Act.”
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sued.159 Only if interpretative documents are adopted after deliberations in intergovernmental bodies can they be found to fulfill the requirements of Article 31.3 of the Vienna Convention on the Law of Treaties. The interpretations adopted by the secretariat have therefore limited weight, even if they are relevant. Moreover, the Consultative Committee and Council analyze the provisions of national legislations, before a State can ratify the UPOV Convention and join the UPOV. These are not interpretations per se. Decisions or recommendations addressing the legislation in one State, however, is relevant for similar process in other States. Customary law: The requirements for identifying international customary law are strict.160 No practices arising from plant variety protection have risen to become international customary law – including whether there is customary law to provide for plant variety protection nationally – as this field of law is very new. General principles of law: There can be recourse to general principles of law if this is necessary to fill gaps left by interpretation of treaty provisions or customary law. For the purpose of this book, when focusing on UPOV as one means to comply with Article 27.3(b) of TRIPS, general principles of law cannot be considered as important interpretative material. Reasonableness: There can be a recourse to reasonableness in order to confirm or determine a meaning of a term. In the context of UPOV, it must be emphasized that the requirement to protect the interests of modern breeding, cannot exclude the possibility to protect the interests involved in traditional breeding, or the interests inherent in national and international exchange of plant genetic resources. Neither is this excluded by TRIPS, provided that it does not affect the enjoyment of the rights granted in accordance with TRIPS. Final observations: The UPOV Convention is included in this study as being one means through which the requirements of Article 27.3(b) of TRIPS can be met. As shown above, there is not much interpretative material available which is relevant in clarifying the scope of the UPOV provisions.
159 See the interpretation of the UPOV secretariat on breeders’ exemptions of 6 December 2004: <www.upov.int/en/about/pdf/breeders_exemption.pdf>. 160 First, the practice must be accepted by law. Second, there must be an opinio juris et neccesitatis, or the conviction that the practice reflects a legal obligation.
Part II: Relevant Provisions from the International Covenant on Economic, Social and Cultural Rights
The four chapters in Part II analyze the provisions of the International Covenant on Economic, Social and Cultural Rights which have most relevance for the purpose of this book. Chapter 4 will provide the background for understanding the scope of the rights found in Part III of the Covenant, by analyzing Articles 2 and 3 in Part II. The provisions in Part II have been termed ‘general obligations’. This chapter will also analyze the most important approaches for understanding both the obligations as well as the nature of the rights. Part II is crucial in order to understand the level of obligations, in addition to identifying possible limitation of, derogation from, and violations of the recognized rights. Chapter 5 will examine Article 11 on the right to food, while Chapter 6 will analyze Article 15 on rights relating to science and authors’ rights. There are specific obligations arising from the recognized rights, and the scope of these obligations will also be analyzed. Finally, a short Chapter 7 will study the scope of justifiable limitations to the recognized rights.
Sepúlveda 2003, pp. 251-252. Part III (Article 6 through 15) contains the ‘rights-specific’ obligations, while Part IV (Article 16 through 25) contains the ‘procedural’ obligations, according to Sepúlveda.
4
Specifying the Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural Human Rights
This chapter will elaborate further on the nature of both the rights and obligations recognized by the International Covenant on Economic, Social and Cultural Rights. This is done by presenting and analyzing the content of Part II (Articles 2 through 5) of the Covenant. In order to understand the level of the obligations more precisely, Part II of the Covenant is crucial. While all rights impose corresponding rights-specific obligations, the rights must also be understood in relation to the general obligations in Part II. This chapter therefore aims to give more in-depth understanding, to serve as a basis for the analysis of the two Articles 11 and 15. First, two articles of Part II of the Covenant will be analyzed. Thereafter, we will examine the nature of the obligations, as well as two approaches, the ‘progressive realization approach’ and the more recently developed ‘violation approach’, both of which are derived from Part II of the Covenant, and assess the applicability of each of them for the purposes of this study. 4.1
General Obligations of the Covenant
A precise understanding of the rights and the corresponding obligations of the Covenant requires a detailed analysis. Articles 2 and 3 of the Covenant will be analyzed to gain a better understanding of the rights and obligations recognized in Part III of the Covenant. 4.1.1
Article 2.1
Article 2.1 reads: Each State Party to the present Covenant undertakes to take steps individually and through international co-operation especially economic and technical, to the maximum of its available resources with a view to achieving progressively the full realization of the rights recog
In this context, observe the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (UN doc E/CN.4/1987/17, Annex), reprinted in Eide et al. (eds.) 2001, Annex 4. Of 103 paragraps, 30 relate to Articles 2 and 3.
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nized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
The structure of Article 2.1 is rather complex. An author notes that Article 2 only specifies a “…possible future pattern of behaviour.” The different elements of Article 2.1 will be analyzed in order to assess whether this observation is correct. The analysis of the elements will be in a logical order, not as they appear in the paragraph. First, we will analyze the scope of the obligation to ‘take steps’, together with the term ‘all appropriate means’ and ‘adoption of legislative measures’. Second, the phrases ‘maximum of its available resources’ and ‘achieving progressively’ will be analyzed. Third, an analysis of the international dimension of this paragraph, namely ‘international assistance and cooperation’ and ‘economic and technical’ will be undertaken. The phrase ‘undertakes to take steps’ is central for an understanding of the Covenant. What is the exact scope of this obligation? More specifically, does the term ‘take steps’ establish more specific obligations than what is imposed by the recognized rights in Part III of the Covenant? The obligation to take steps is identified by the Committee on Economic, Social and Cultural Rights as an obligation of ‘immediate effect’. Two authors observe that while “…the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken either before or within a reasonably short time after ratification.” While Article 2.1 does not identify what the States shall do, there is an emhasis on adopting legislative measures. It is only in the context of the whole of Article 2.1, the other articles in Part II of the Covenant, as well as Part III of the Covenant, that a clear understanding arises of what ‘take steps’ actually means. By reading Article 2.1 together with Article 11 of the Covenant, the intial phrase of Article 2.1 does not add much. Article 11.1 asserts that States “will take appropriate steps” and Article 11.2 declares that States “shall take the measures which are needed”. The corresponding phrase of Article 15 is found in 15.2 applying the phrase ‘steps to be taken’. This latter phrase is relatively vague and the paragraph therefore imposes relatively weak obligations. Due to this imprecise wording of Article 15, Article 2.1 specificies the obligations imposed by Article 15, implying that there is actually an obligation to take steps for the effective realization of the recognized rights. Therefore, while the term ‘take steps’ does not necessarily add much to the substative rights and obligations, it emphasizes that taking of steps shall not be delayed. The phrase ‘by all appropriate means’ is interesting. Does the term ‘means’ cover something different than ‘steps’ mentioned initially in Article 2.1? Moreover, another
Shaw 1986, p. 171. An excellent and comprehensive presentation of the Articles in Part II, with an emphasis on Article 2.1 is presented in Alston and Quinn 1987 and in Craven 1995. General Comment No. 3, UN Doc. E/1991/23, pp. 83-87; reprinted in Eide et al. (eds.) 2001, paragraph 1. Alston and Quinn 1987, p. 166.
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
similar term is applied in Article 2.1, namely ‘measure’ (“legislative measures”). What is the relationship between these three terms? Moreover, what is ‘appropriate means’? According to the New Oxford Dictionary of English, the three terms have the same connotations, namely to take an action to achieve a purpose. This is confirmed by the fact that the Spanish term both for ‘take steps’ and ‘adopt measures’ used in the official translation is ‘adoptar medidas’. Furthermore, the Spanish terms for ‘means’ is ‘medios’. Therefore, for the purposes of this book, a clear distinction between the three terms applied in Article 2.1 is not relevant, as all refer to actions for achieving a purpose. ‘Appropriate’ must be read together with the term ‘all’. ‘Appropriate’ is applied in legal texts to indicate a certain margin of discretion, where the State itself identifies what is appropriate. The term ‘all’, however, must be understood to strengthen the obligations with regard to appropriate means. The phrase ‘all appropriate means’ can be understood as including the means which the State authorities themselves find as being appropriate. This is a restrictive interpretation. An alternative interpretation is that there are more means which are appropriate for the realization of the rights than these authorities are willing to admit. This is confirmed in the following statement by the Committee on Economic, Social and Cultural Rights: “…the ultimate determination as to whether all appropriate measures have been taken remains one for the Committee to make.”10 This statement is not uncontroversial, and must at least imply that the Committee has detailed knowledge of the specific country situation, in order to identify what is appropriate. As Article 2.1, as well as paragraphs 11.1, 11.2 and 15.4 emphasize international cooperation, a wide range of appropriate measures must be considered, by combining national and international means. Therefore, ‘all appropriate means’ must be understood to imply that a State shall actively seek to identify these means, as well as a plan for carrying them out. It is crucial that the State adopts the appropriate means with the aim of empowering the individual. As stated in Article 2.1 of the Declaration on the Right to Development: “[t]he human person is the central subject of development and should be
Three dimensions of the generic term ‘measures’ are recognized. First, as form, for instance as legislations or regulations, or as ‘provisional measures’ Second, as process, implying procedural requirements for how the measure is carried out. Third, as content, where the compliance with international obligations is crucial. Measure: “A plan or course of action taken to achieve a particular purpose”. Means: “An action […] by which a result is brought about.” Steps: “A measure or action to deal with or achieve a particular thing.” The Spanish text is ‘authenticated’; see Article 33 of the Vienna Convention on the Law of Treaties. The New Oxford Dictionary of English, defines ‘appropriate’ as “suitable or proper in the circumstances.” 10 General Comment No. 3, UN Doc. E/1991/23, pp. 83-87; reprinted in Eide et al. (eds.) 2001, paragraph 4.
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the active participant and beneficiary of the right to development.”11 A concretization of this principle applied on the right to food is the emphasis on ‘command over food’.12 Article 2.1 of the Covenant ends with the phrase, ‘particularly the adoption of legislative measures’. It is recognized that legislation is one of the crucial forms by which a measure may be taken. The phrase confirms the need for an explicit legal recognition of the recognized human rights in national laws. The Committee has expressed concern over the lack of legislation regulating economic, social and cultural rights.13 Of relevance for the purposes of this book is whether a State which has not adopted any relevant legislation relating to the right to food does act in non-compliance with the Covenant. On the one hand, a recognition of an economic or social human right in national law does not, as such, imply that the right is necessarily more effectively realized. The right to work, recognized in Article 6 of the Covenant, is an example. Despite the fact that this right is enshrined in several constitutions, in most States, a very high proportion of the workforce is unemployed. By recognizing human rights through the adoption of legislation, however, such legislation will also confirm and make more evident obligations imposed by those rights. Moreover, based on the prohibition against discrimination, alleged violations of all human rights can be brought before the judiciary, even if the particular human right is not recognized through a specific law.14 If one compares Article 2.1 of the Covnenant with Articles 2.2 and 2.3 of the International Covenant on Civil and Political Rights, the latter provisions are more specific with regard to legislation. Article 2.2 asserts that the States ‘undertakes to adopt legislative or other measures as may be necessary to give effect to the rights’, Article 2.3 emphasizes ‘effective remedies’. The International Covenant on Civil and Political Rights focuses on rights and effective remedies, not steps and appropriate means. The International Covenant on Civil and Political Rights, however, also includes in Article 2.1 the term ‘steps’ and the phrase ‘other measures as may be necessary’. Therefore, the difference between the two Covenants must not be overemphasized, in particular as the International Covenant on Economic, Social and Cultural Rights applies the term ‘particularly’, implying that legislative measures stand out from other measures. There is no basis for saying that a State party which has no relevant legislation for the recognition of relevant economic, social and cultural human rights is in breach of Article 2.1.15 It must be presumed that the phrase ‘particularly including legislative measures’ implies that specific attention should be paid to such measures, but legislation alone is not sufficient. Comprehensive and consistent efforts at different administrative levels and in different policy fields are crucial, and can take place irrespective of legislation. This applies in particular to the rights studied in this book relating to food 11 A/RES/41/128: Declaration on the Right to Development, 4 December 1986. 12 Eide 1987, p. 27. 13 Concluding observations to reports from Kenya (E/C.12/1993/6, paragraph 10) and Canada (E/C.12/1993/5, paragraph 25). 14 Scheinin 2001 shows how economic, social and cultural rights can be defended before the courts, by applying procedural provisions, including national prohibitions of discriminations in access to essential services. 15 See also Alston and Quinn 1987, p. 167.
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
and scientific activities.16 It should be noted that General Comment No. 12 devotes little attention to legislation, but emphasizes the adoption of framework laws,17 and incorporation of international instruments recognizing the right to food.18 If the lack of relevant legislation effectively leads to the ignorance of the Covenant’s obligations, this can be an indication that the State is not in compliance with the Covenant. The phrase ‘to the maximum of its available resources’ is frequently referred to in order to claim that States must be given wide discretion in their human rights implementation. General Comment No. 3, however, states that the State “…must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”19 Therefore, patterns of public expenditures will be an important source of information. It is also important to note that resources relate to much more than financial resources.20 The three terms ‘maximum’, ‘available’ and ‘resources’ are all crucial for gaining an understanding of the whole phrase. ‘Maximum’ encompasses a strong obligation. In paragraph 1 of the Vienna Declaration on Human Rights, the delegates said with regard to human rights: “…their protection and promotion is the first responsibility of Governments.”21 Thus, an author has made the following observation: “Because human rights necessarily claims priority over all other considerations, governments must, at least in theory, marshall all the resources needed for their satisfaction, up to the point where this would infringe the satisfaction of other rights.”22 In general, increased priority of human rights protection and promotion today is a prerequisite for the realization of human rights tomorrow. There is reason to ask, however, whether a situation where all resources are used for food distribution in the form of ‘hand-outs’, and where no resources are used for investments in food production facilities, is necessarily the most appropriate strategy. A policy of ‘hand-outs’ might allow everyone to enjoy crucial human rights such as the right to food today, but if it leaves nothing for investments in future food production, it could undermine the possibility for enjoying the same right tomorrow. The term ‘maximum’ must be understood as a relative concept that shall not undermine investments aimed at enhancing possibilities for human rights realization in the future. 16 Note that General Comment No. 3 (adopted in 1990), paragraph 5, also excludes Article 9 (right to social security) and Article 12 (right to health) from the list of human rights capable of legal enforcement. Since then, these rights have been increasingly recognized in national and international courts, including in the European Court of Human Rights. 17 General Comment No. 12, paragraph 29. 18 Ibid, paragraph 33. 19 General Comment No 3, paragraph 10. 20 Robertson 1994 identifies human, technological, information and natural resources, in addition to financial resources. Also, the Convention on the Rights of the Child includes organizational resources. 21 A/CONF. 157/23, 1993. 22 Robertson 1994, p. 700.
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‘Available’ is also a term which might be more complex than what can be seen immediately. In any food strategy, States must include all forms of resources and capacities which are required in order to ensure the optimal realization of the right to food. This does not only include national resources.23 It is reasonable to derive from this that there exists an obligation to seek to expand the resource base, both by generating more resources domestically and by making calls for international financial assistance.24 The term ‘available resources’ is a relevant concept to bring up in the context of the economic reform programmes initiated by the World Bank and the International Monetary Fund. The shrinking of public finances, as a major means of financial austerity, together with various measures for increasing export, are central elements in these programmes.25 In short, this implies that in the short term there will be less ‘available’ resources at the free disposal of the State. Article 2.1 sets up obligations for the States only. Therefore, whether there are more available resources in the economy as a whole has relatively little importance for whether the requirements of Article 2.1 can be met. An indirect effect of there being more available resources among private sources, however, can be that the State also benefits, both as there will be improved human rights realization, and as the State can increase its resource base by taxing these private actors. The term ‘available resources’ must also be seen in relation to other external factors, such as debt servicing26 and terms of trade. Many States face a situation in which their available resources are too limited to ensure the effective protection of all human rights. Finally, the term ‘resources’ must be understood to encompass more then merely financial resources, and can in addition include human, technological, informational and natural resources.27 Moreover, ‘resources’ must also be considered a relative concept. First, it is important to recognize that the financial situation of a State party is taken into account when the Committee examines the reports. The drafters also acknowledged that there were stronger obligations for the industrialized countries.28
23 Robertson 1994, p. 699: “Clearly, the state is obliged to consider all domestic and international resources when determining strategies for the satisfaction of ICESCR rights.” See also Dowell-Jones 2004 and Skogly 2003. 24 It must also be asked whether there is an obligation to work for international policy changes which increases the resource base for resource-poor States. This will be analyzed below. 25 The UN Human Rights Council has its own ‘Independent Expert on the effects of structural adjustment policies and foreign debt on the full enjoyment of all human rights, particularly economic, social and cultural rights’. 26 The debt burden is addressed by the Committee in paragraph 9 of General Comment No. 2 on international technical assistance measures, in which the Committee states that “[u]nder such circumstances, however, the endeavours to protect the most basic economic, social and cultural rights become more, rather than less, urgent.” Debt is also addressed under the mandate of the Human Rights Council’s independent expert on the effects of structural adjustment policies and foreign debt on the full enjoyment of human rights, particularly economic, social and cultural rights; see E/CN.4/RES/2005/19. 27 Robertson 1994, pp. 704-709. 28 Alston and Quinn 1987 pp. 178-180, analyzing the drafting of this part of the paragraph.
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
When devoting resources toward the full realization of human rights, a State must take into account the extent to which other rights will be affected by the insufficient enjoyment of the right. The State must be particularly attentive to any right which impacts on the right to life. Moreover, if the right to food is not adequately exercised, this will impact on the physical and mental condition of the persons affected. This impacts negatively on the enjoyment of the right to health and the right to education, as one’s physical condition deteriorates resulting from insufficient enjoyment of the right to food. While the phrase ‘maximum of its available resources’ must be understood as being relative, and adapted to the conditions facing the particular State, there are rather strong obligations which can be derived from the phrase, reflecting also the broad area in which relevant measures can be taken. The term ‘achieving progressively’ is inserted in Article 2.1 just before the term ‘full realization of the rights recognized’, and must therefore be understood as imposing an obligation on the State parties to “…move as expeditiously and effectively as possible towards that goal”29 of full realization of the rights. It was demonstrated with regard to the phrase ‘undertakes to take steps’ that there is an immediacy in taking steps while the full realization is done progressively. The ‘progressive realization’ approach constitutes the essential characteristics of the Covenant. The Committee has recommended the adoption of benchmarks and monitoring mechanisms, calling also for an explicit identification of factors and difficulties affecting the implementation.30 This will allow for more transparency in the process towards the full realization of the recognized right. In any instance, the phrase ‘achieving progressively’ has a dynamic element, as the “…essence of progress was continuity.”31 As the term ‘achieving progressively’ clearly points in one direction, it is somewhat surprising that the Committee on Economic, Social and Cultural Rights has introduced the possibility of ‘deliberate retrogressive measures’.32 The Committee introduces two conditions for determining when such deliberate retrogressive measures can be taken; it “…would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.”33 An author identifies the following situations as examples of retrogressive measures: adoption of laws, abrogation of laws, reduction of public expenditures, and ignoring economic, social and cultural rights in human rights treaties.34 In the context of this study, it must be assumed that the adoption of laws and reduction of public expenditures are the most relevant. This study will seek to analyze the requirements for identifying a deliberate retrogressive measure as being justified, based on the two requirements identified by the Committee to determine whether deliberate retrogressive measures are justified or not. 29 30 31 32 33 34
General Comment No. 3, paragraph 9. General Comment No. 12, paragraphs 29 through 31. UN Doc. A/C.3/SR.236 (1951), statement by representative of Denmark, p. 20. General Comment No. 3, paragraph 9. Ibid. Sepúlveda 2003, pp. 323-324.
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First, however, there will be an identification of what constitutes a ‘deliberate retrogressive measure’. Is the taking of a measure by which a State increases investments in capacities for food production – but undertaken to the extent that it is impossible to maintain a programme for food hand-outs’ – a ‘deliberate retrogressive measure’? Alternatively, is introduction of patent protection in the field of food or medicines – leading to increased prices on protected products, but at the same time allowing for increased private investments in these important fields of research – a ‘deliberate retrogressive measure’? At this stage of the study, there is not adequate information to provide any clear answers to the two questions above.35 The ‘careful consideration’ as emphasized by the Committee, must assess the specific sector where these measures are taken, including the distributional impacts. This book does not exclude that the introduction of a law which imposes substantial costs on the State represents a ‘deliberate retrogressive measure’ If it is found that the introduction of patent protection in the field of food actually represents a deliberate retrogressive measure, the Committee states that such measure can nevertheless be justified by ‘reference to the totality of the rights’ and ‘in the context of the full use of the maximum available resources’. Each of these two requirements will be analyzed. The first requirement, on the ‘reference to the totality of rights’, must be understood as something more than a procedural obligation. This requirement implies that deliberate retrogressive measures affecting the enjoyment of a particular human right, can nevertheless be justified because this might allow for more widespread enjoyment of other human rights. The second requirement, on the ‘maximum available resources’, must be understood as justifying reduced public expenditures devoted to ensuring the enjoyment of one human right, if there is at the same time a proportionate increase in the public funding devoted to the realization of another human right. Hence, the State cannot restrict the enjoyment of one human right if this does not at same time provide for better enjoyment of other human rights. The two situations found to be of relevance, on adoption of laws and reduction in public spending, will now be analyzed. First, regarding the adoption of laws, can the introduction of a law which might have consequences for the realization of other human rights nevertheless be justified?36 A specific assessment of the relevant rights is necessary, including to which extent the rights are considered to be fundamental and relating
35 The distributional impacts are analyzed in Chapter 12.3.1 below, based on the fact that protected seeds are more expensive than non-protected seeds. The potential positive effects, resulting from higher yields, as well as the uncertainty regarding who is actually going to purchase the protected seeds, makes it difficult to draw clear conclusions at this stage of the analysis. Moreover, there are concerns relating to the freedom to undertake breeding and research, as well as monoculture resulting from the introduction of new seeds. 36 See in this context both the analysis on Article 4 in Chapter 7.1 below, and the analysis of the Maastricht Guidelines in Chapter 4.2.3 below, the latter identifying the ‘adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations’ as an ‘act of commission’.
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
to the integrity and survival of the human person. The right to food must be considered to be such a right, while authors’ rights are not similarly fundamental. Second, regarding budget priorities, can a State which diverts some resources away from the immediate realization of human rights in order to make investments that are crucial for the future enjoyment of human rights, nevertheless claim that these are justified ‘deliberate retrogressive measures’?37 Ideally, investments for future food production should be made without taking resources away from the day-to-day programs. Most probably, food ‘hand-outs’ and research for enhanced food production are taken from different budgets. While the above question can only be answered by taking into account all relevant factors in the country concerned, the principle of sustainability implies that a policy pursued must also be possible to maintain over time. This indicates that food production programs can be prioritized if this allows for more progressive realization over time, even if this might come at the expense of food distribution programs, which do not in the same manner point towards a progressive realization, as the productive resources base is left untouched. This answer, however, can also be unsatisfactory. First, the current insufficient enjoyment of food can have serious consequences for the enjoyment of the right to health or the right to education. A hungry child does neither develop well physically, nor learn well, thus affecting his or her mental development. Second, the important question must always be who is actually best served by the different programs. The situation for the vulnerable and marginalized is crucial in measurements of human rights realization. While these two factors must be kept in mind, the present author does not find that to improve food production done in a manner which can divert resources away from food distribution is a ‘deliberate retrogressive measure’, provided that such improvement is done in order to serve the poor. To sum up this analysis, it is difficult to answer when retrogressive measures are justified.38 As noted by the Committee, a ‘most careful consideration’ of the specific circumstances is crucial. Chapter 7.1 will analyze justifiable limitations in the enjoyment of the rights, but progressive realization is the standard approach under the Covenant. ‘International assistance and cooperation’ is the next interesting phrase, and is of particular importance in the context of this study.39 An important difference between the two UN human rights Covenants from 1966 is the importance of international cooperation in the International Covenant on Economic, Social and Cultural Rights. Such assistance and cooperation is crucial for the realization of economic, social and cultural rights, in particular for the developing and least-developed countries. While international assistance and cooperation are important, the State has the primary obligation 37 See also here both the analysis on Article 4 in Chapter 7.1 below (‘promoting the general welfare’), and the analysis of the Maastricht Guidelines in Chapter 4.2.3 below (‘reduction of public expenditure’) 38 Sepúlveda 2003, p. 328, states: “…retrogressive measures are prima facie incompatible with the Covenant, and […] States have the burden of proving their compatibility.” See also ibid, p. 331. 39 Both Article 11.1, 11.2 and 15.4 also acknowledge the importance of international cooperation.
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to ensure that human rights are realized within their jurisdiction. The emphasis on international cooperation and international assistance in Article 2.1 must not imply less emphasis on the human rights obligations of each of the State parties. A State can therefore not refrain from taking the relevant measures because the international community is expected to assist. At the same time, many States are far from experiencing ‘full realization’ of important social human rights, such as the right to food or health within its jurisdiction. Therefore, the State should avail itself of all resources that the international community can provide, in order to work for this full realization. International assistance and cooperation increase States’ capacity to realize the recognized human rights, particularly those rights requiring financial resources. A related question is whether there is an obligation with regard to international assistance and cooperation. An international obligation with regard to assistance will be relative, depending upon the actual resources available within that State.40 There can be no doubt, however, that there exists a general obligation with regard to international cooperation. This obligation is also derived from Article 56 of the UN Charter.41 The phrase ‘economic and technical’ is understood as efforts to strengthen the national capacity to implement the rights. This study will analyze whether this phrase adds to the general understanding of the phrase ‘international cooperation and assistance’, analyzed above. First, a distinction must be made between the terms ‘economic cooperation’, which is exercised through various forms of development assistance, and ‘technical cooperation’ which is understood as a strenghtening of administrative systems, as well as general ‘know-how’, including systems for improved monitoring.42 This indicates that the term ‘technical’ brings in new elements, while ‘economic’ is for all practical purposes a component in the general term ‘assistance’. Second, the phrase ‘economic and technical’ is preceded by the term ‘especially’. This implies that there are many forms of international cooperation which are relevant for the purpose of achieving the full realization of the recognized rights. As the term ‘economic’ does not contribute much to the analysis, it is warranted to analyze only the term ‘technical’. It must be noted that the term ‘technical’ in Article 2.1 does not have the same meaning as the term ‘technical’ in Article 11.2, as the former relates to a wide range of international measures, from strengthening of administrative capacities to different kinds of ‘know-how’, while the latter strictly relates to food production. 40 See Craven 1995, p. 145, and Alston and Quinn 1987, p. 191; see also Skogly 2003. As will be seen in Chapter 4.2.1 below, ‘assistance’ is an international obligation on the ‘fulfill’ level. It is less controversial that there exist international obligations on the ‘respect’ and ‘protect’ levels. 41 Article 56 addresses “…co-operation with the [UN] for the achievement of the purposes set forth in Article 55.” 42 See Alfredsson 2001, p. 475, identifying the following elements in the technical cooperation program of the UN High Commissioner for Human Rights: Advice in the drafting of bills; review of such bills; creation and development of national infrastructures and institutions; administration of justice; prevention and resolution of conflicts; treaty reporting; training of civil servants; curriculum development; dissemination of human rights information through manuals etc.; civil society support. He also finds, ibid, p. 477, that technical cooperation is still in its ‘infancy’ and this service is likely to grow.
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
In order to identify more precisely what is meant by the term ‘technical cooperation’, this study will assess whether it is relevant to analyze General Comment No. 2 on international technical assistance measures.43 The emphasis is specifically on Article 22 of the Covenant.44 General Comment No. 2 emphasizes some efforts undertaken by UN organs.45 The Committee finds that “…its own endeavours would be assisted, and the relevant agencies would also be better informed, if they were to take greater interest in the work of the Committee.”46 There is a lack of methodological approaches toward international technical assistance measures in General Comment No. 2, but it does confirm the relevance of such measures in the context of national strengthening of human rights. Moreover, there are no other general comments which have elaborated on such technical assistance. The Committee has therefore only identified international technical assistance as being important, but has not provided guidance on how such technical assistance shall be conducted. The phrase ‘economic and technical’, nevertheless, adds to the understanding of the scope of Article 2.1, by identifying technical assistance, understood in the wide sense, as important for States seeking to strengthen human rights protection and promotion. Conclusion: Article 2.1 can be interpreted to indicate that the State parties are left with some margins of discretion.47 While Article 2.1 points toward the objective of human rights, namely ‘full realization’, it also indicates what the States must do to achieve this objective. The vague wording allows for different perceptions on the appropriate strategies for realization of the rights. Those who emphasize the character of the rights as one of only progressive realization, find a justifiable approach. Those who emphasize that the recognized rights must be given priority, both in terms of resource allocation and in the form of legislation, can also base their arguments on Article 2.1. From the analysis above, it seems reasonable to conclude that Article 2.1 must be interpreted to emphasize the obligation of undertaking human rights-specific policies, including in the field of resource allocation. The right to life should be particularly emphasized when prioritizing between scarce resources. The common preamble of the two Covenants emphasizes that the human rights ‘derive from the inherent dignity of the human person’. This applies particularly to the right to food.
43 International technical assistance measures (art. 22 of the Covenant), UN doc. E/1990/23, pp. 86-88. 44 Article 22 reads:”[ECOSOC] may bring to the attention of other organs of the UN […] any matters arising out of the reports […] which may assist such bodies […] on the advisability of international measures…” See also Chapter 5.3.1 below. 45 Ibid, paragraphs 2, 4 and 5, the latter emphasizing UNDP and ILO. 46 Ibid, paragraph 4. The capacities and competences on technical assistance are primarily with the Office of the High Commissioner on Human Rights (OHCHR), not with the Committee on Economic, Social and Cultural Rights. OHCHR was not established when General Comment No. 2 was adopted. 47 Craven 1995, p. 151: “…it is virtually impossible to determine the precise nature of the obligations.”
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The wording of Article 2.1 allows for flexibility regarding how policies for realization of human rights are implemented nationally. Regarding a particular aspect of human rights realization, namely discrimination, there is no flexibilitity. 4.1.2
Articles 2.2 and 3
Articles 2.2 and 3 of the Covenant relate to non-discrimination. Article 2.2 reads: The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national48 or social origin, property, birth or other status.49
Article 3 reads: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.50
The scope and application of these two provisions will be identified. The terms used, namely ‘guarantee’ and ‘ensure’ indicate the immediacy of preventing discrimination of any kind in the excercise and enjoyment of the human rights. As the wording of these two provisions is relatively straightforward, compared to Article 2.1, it is not necessary to perform a similar exercise as the one undertaken with regard to Article 2.1. Rather, this study will identify how these provisions are understood within the larger context of non-discrimination provisions and treaties, as well as how these two provisions are applied. 48 The only possible deviation from the general principle of non-discrimination does apply to economic rights, not to social rights, including the right to food. Article 2.3 reads: “Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.” Article 2.3 states that developing countries may determine to what extent they would guarantee the economic rights recognized in the Covenant to non-nationals. This provision has not been extensively elaborated by the Committee. Furthermore, as this study will not deal with economic rights explicitly - though it might well be argued that the authors’ rights of Article 15.1(c) can be considered as an economic right, at least as far as the ‘material interests’ are concerned - this provision is not relevant. 49 The similar paragraph in the International Covenant on Civil and Political Rights (Article 2.1) states ‘respect and ensure’ instead of ‘guarantee’, does not include the term ‘exercise’, includes the phrase ‘within its territory and subject to its jurisdiction’ and says ‘distinction’ instead of ‘discrimination’. 50 A General Comment on Article 3, No. 16 (E/C.12/2005/3), was adopted at the 34th Session, 13 May 2005. Article 3 is identical to Article 3 of the International Covenant on Civil and Political Rights.
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
Related to the term ‘non-discrimination’ is the term ‘equality’.51 A central element in non-discrimination is that those who are equal are treated in an equal manner, while those who are different are treated differently.52 Moreover, “…the principle of non-discrimination approaches equality from the negative standpoint.”53 Hence, unequal treatment can be justfied – and required – if undertaken in order to counteract unjustified inequality.54 The international protection against discrimination has been strengthened, primarily through the adoption of new treaties,55 but also through the jurisprudence of international courts.56 The latter has contributed to making a distinction between direct and indirect discrimination. Direct discrimination takes place when persons in objectively similar situations are treated differently – with no legitimate justification. Indirect discrimination takes place when seemingly neutral provisions have been found to have discriminatory effects.57 This implies that persons might be treated differently – if this different treatment takes place because of a pursuit of a legitimate objective, and that the means chosen to reach this objective are necessary, appropriate and effective. Turning to the provisions in the Covenant, there is no provision which states that the most marginalized segments or groups of society shall be given particular attention. Not even the phrase ‘continous improvement of living conditions’ of Article 11.1, applies specifically to the most marginalized.58 The Committee on Economic, Social and Cultural Rights, when examining State reports or issuing general comments, have made frequent references to special treatment of vulnerable groups, which has been termed ‘process of equalization’.59 51 52 53 54 55 56
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See General Comment No. 16, paragraphs 6 through 9; see also Craven 1995, pp. 154-161. Craven, p. 155. Ibid. Ibid. The introduction of temporary special measures in which everyone has same opportunities is not discrimination, even if such ‘special measures’ constitutes discrimination under normal circumstances. Two UN Conventions are of particular importance: the 1965 International Convention on the Elimination of Racial Discrimination and the 1979 Convention on the Elimination of All Forms of Discrimination against Women. ECJ is most relevant, but see also the European Court of Human Rights: Thlimmenos v. Greece 2001, paragraph 42: “…he was treated like any other person convicted of a serious crime although his own conviction resulted from the very exercise of this freedom [of religion]”. The Court found a breach of Article 14 (discrimination) in conjunction with Article 9 (freedom of religion). See General Comment No. 16, paragraph 13. One of the first examples of discriminatory effect can be found in the European Court of Justice. The ruling in Bilka-Kaufhaus GmbH v. Weber von Hartz ((1986) IRLR 317) was that a supplementary retirement pension scheme available only for full-time workers was contrary to Article 119 of the EEC Treaty (now Article 141 of the EC Treaty) because women make up most or all of the part-time work-force. Belgium proposed that this phrase should be qualified; see A/C.3/SR.743, (1957), p. 309, paragraph 8. Craven 1995, p. 159.
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Turning to non-discrimination, a distinction must be made between de jure and de facto discrimination. The primary purpose of the anti-discrimination provisions in Articles 2.2 and 3 is to eliminate both de jure and de facto discrimination. While legislation providing for de jure discrimination in the field of one of the recognized rights can rather easily be repealed, elimination of de facto discrimination requires more time. This leads to a second question identified above, concerning the actual application of the provisions. For reasons of space and stringency, this study will concentrate on the application by the Committee on Economic, Social and Cultural Rights. There are no indications that the Committee approaches the issue of discrimination in a manner which deviates from other international bodies or courts.60 Therefore, non-discrimination is considered by the Committee as a basic principle for the enjoyment of human rights.61 A breach of the principle of non-discrimination can be used to justify an argument before the courts that a human rights violation taken place. The Committee, however, does not consider there to be an absolute obligation of result.62 The principle of non-discrimination and equality is crucial for the exercise of internationally recognized human rights. Where there is no relevant legislation against discrimination in place, the Committee asserts that: “…the burden of proof would lie with those Governments, which would therefore be expected to show that the non-legislative measures that they had taken effectively ensured the elimination of discrimination and that it was not essential to take legislative measures.”63 This study has concentrated on the Committee’s application of Article 2.2 and 3. There could be different views among the various State parties with regard to the anti-discrimination provisions of the Covenant. The principle of anti-discrimination, however, can have a substantial impact also on the national level, both in the process of policy implementation, as well as in the process of bringing a case of alleged violation before the courts. If there is a presumption of violation of a certain article in the Covenant, it is easier to determine that one or more of the substantive articles in Part III of the Covenant has been breached if it is found that the act had discriminatory intent or effect. 4.2
Basic Approaches for Understanding the Rights and Obligations of the Covenant
Before analyzing the specific rights of the Covenant which are relevant for the purposes of this book, a more elaborate understanding of the nature of the rights, as well as their corresponding obligations, is required. Therefore, first, three crucial approaches to understanding the human rights recognized in the Covenant, all of which will be ap60 Craven 1995, p. 180 finds that the approach of the Committee is similar to the approach of the European Court of Human Rights. 61 For an interesting discussion on the differences between rule and principle, and the legal implications arising from implying each of the two, see Alexy 2002, in particular Chapter 3. 62 Craven 1995, p. 160. 63 Report from the First Session of the Committee (1987): E/C.12/1987/SR.6, p. 3.
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
plied in this book, will be presented. Second, a brief presentation concerning the debate among legal scholars on the nature of these rights will be made. Finally, an analysis of the two approaches for identifying when the rights are not adequately exercised, the ‘progressive realization’ and the ‘violations’ approach, will be offered. 4.2.1
Rights and Corresponding Obligations
In order to have a more precise understanding of the recognized human rights, it is necessary to present three approaches which are applied for understanding States parties’ obligations. For the subsequent discussion, there is need for a precise understanding of the obligations imposed by the recognized rights. First, there is a distinction between obligations of result and obligations of conduct. The former emphasizes the end result, giving less emphasis on which means are used for reaching this end result. The latter emphasizes that the means applied in order to reach the end result, must also be carefully considered. While States are given a certain margin of discretion in their implementation of human rights, this cannot be interpreted to imply that only obligations of result shall be emphasized. In other words, the means used in order to reach the end are not irrelevant. It is generally acknowledged that both obligations of result and obligations of conduct are enshrined in the Covenant. Second, the introduction of the ‘minimum core obligations’ to ensure minimum essential levels of each of the rights has been applied by the Committee on Economic, Social and Cultural Rights in the recent general comments.64 Exactly what constitutes such ‘minimum core obligations’ has been analyzed recently,65 and this approach could be useful, particularly when discussing specific priorities for ensuring human rights protection in a situation of scarce resources. It is important to identify the core of the human rights, and violating such core rights must be considered as being more serious than violating only a supporting element of a right. Third, it is possible to understand the nature of State parties’ obligations by identifying three distinct levels of obligations; to respect, to protect and to fulfill66 human rights. It is generally presumed that these three levels of State obligations can be applied in relation to all recognized human rights, but they were originally applied in relation to the right to food.67 The ‘respect, protect, fulfill’ approach is most commonly applied
64 General Comment No. 3, paragraph 10 (UN doc. E/1991/23, pp. 83-87, reprinted in Eide, et al. (eds.) 2001, Annex 2). The General Comment on the right to food, does not apply the term ‘core obligations’, but refers to ‘minimum obligations’. Another approach (Arambulo 1999) is the ‘minimum threshold approach’. 65 See the contributions in Russell and Chapman (eds.) 2002. 66 At the fulfill level, the State can either facilitate, through legislation and administrative reforms, or be involved in providing, either directly or through non-governmental or intergovernmental organizations. 67 The 1987 study on the right to adequate food by Eide (E/CN.4/Sub.2/1987/23) is frequently referred to in reference to the three levels of State obligations. This categorization was applied previously, both by Eide and Shue (see Shue 1980 and 1984) – the latter applying a more
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in order to understand human rights obligations. This latter approach will therefore be applied in the analysis below. For the purposes of this study, this latter approach helps in identifying both appropriate and inappropriate State measures in order to achieve the stated objective of ‘promoting and encouraging respect’68 for human rights. By applying the ‘respect, protect, fulfill’ approach, it is possible to analyze, inter alia, to which extent the authorities create an enabling environment, adopt appropriate legislation and supervision, as well as decide on policies and budgets, including specific measures, which enable everyone to exercise their rights. When analyzing the recognized human rights, this approach will clarify the obligations imposed by the rights. The ‘respect, protect, fulfill’ approach is generally considered to assist in understanding the scope of the obligation imposed by the recognized rights of the International Covenant on Economic, Social and Cultural Rights. One of the criticisms relating to the different rights recognized in the Covenant is that their wording does not give clear guidance on the means of implementation.69 Recently, there has been a stronger emphasis on understanding the obligations inherent in the Covenant.70 While it is important to acknowledge the limitations inherent in the general wording of the provisions of the Covenant, the wording reflects approximately 15 years of deliberate negotiations. The recognized rights, including the right to food, are better understood in light of the obligations imposed by the right. Furthermore, the right to food is unique compared to the other rights in the Covenant, also because of the rather specific measures which are listed in Article 11.2 of the Covenant itself. 4.2.2
Arguments Concerning the Nature of the Rights in the Covenant
Since the General Assembly decision in early 195271 to proceed with negotiations on two separate Covenants,72 there has been a tendency among States and legal scholars to treat
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philosophical approach, which was not based on human rights provisions, hence being less applicable in this context. Charter of the United Nations, Article 1.3. As the term ‘promote’ is also applied by the Committee on Economic, Social and Cultural Rights, one author concludes that it also belongs to this categorization of human rights obligations (Sepúlveda 2003, pp. 243-248). This assumption is not shared in this book. As noted by one author, it is “virtually impossible to determine the precise nature of the obligations” (Craven 1995, p. 151). This should not be interpreted as saying that it is impossible to adopt national law relating to human rights provisions where rights and obligations are clearly defined. For a more thorough analysis of the obligations arising from the Covenant on Economic, Social and Cultural Rights, see in particular Sepúlveda 2003 and Chapman and Russel (eds.) 2002, the latter examining the ‘core obligations’ concept. UN 1952: General Assembly Resolution 543 (VI), (375th Plenary Meeting 5 Feb 1952). This decision has been regretted by human rights advocates: “In retrospect, the decision to separate the two sets of rights was a mistake, from which human rights law is still recovering.” (de Feyter 2001, p. 254)
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
the rights recognized in each of the two Covenants differently. In this section, some of the arguments raised in the discussion concerning the nature of the rights recognized in the Covenant, are presented and analyzed. Currently, there is general agreement that the Covenant, as an international treaty, is legally binding upon the ratifying States.73 There have, however, been authors who have questioned this, primarily based on the wording and nature of the specific rights. Below, arguments are presented which have been used in this debate. One author, starting from a philosophical background, has ascribed a secondary status to economic, social and cultural rights, defining them outside of the concept ‘proper human rights’.74 Other studies apply different approaches, but end with similar conclusions. One author has, by application of general principles of law enforcement, asserted that economic and social rights do not pass the various tests relating to immediacy and practicality.75 Others exclude economic and social rights from the term human rights by the requirement of universality, fundamentality and practicability.76 An author, writing one of the most quoted books on public international law, describes the concurrent obligations of the Covenant as: “…programmatic and promotional, except in the case of provisions relating to trade unions (Article 8).”77 This understanding has subsequently been challenged,78 but there is still an understanding among some States that these rights are not legal rights in the same manner as civil and political rights. The present author finds that the content of the rights, emphasizing their progressive nature, can not be used as an argument saying that they are not legal rights. The rights recognized in the Covenant are now generally agreed to be legal rights, and – to a more limited extent – enforceable rights.79 It must be presumed that vague prescriptions for how economic, social and cultural rights are to be implemented, is one explanation for the lack of their acknowledgement in national jurisdictions, particularly with regard to how these rights are handled by the courts: “The limitation of justiciability in the international forum to civil and political rights alone is a grave error.”80 Regarding the right to food, an author has sought to disqualify the right to food from having legal effect, based on three assumptions.81 First, as domestic legal systems have 73 See particularly Arambulo 1999. 74 The late philosopher John Rawls, in his book The Law of Peoples (1999), states in note 23, page 80, that Articles 3 through 18 of the Universal Declaration on Human Rights constitute ‘proper human rights’, and does not consider the rest of the Universal Declaration. 75 Fried 1978, in particular pp. 108-113. 76 Cranston 1967. 77 Brownlie 2003, p. 539. 78 Several authors (Craven 1995, Arambulo 1999, Scheinin 2001, Sepúlveda 2003), as well as the Committee on Economic, Social and Cultural Rights itself, have challenged this opinion. 79 As an example, violations of the right to food have been brought before the Indian Supreme Court (People’s Union for Civil Liberties v. Union of India and others: Writ Petition [Civil] No. 196 of 2001), but have not yet been brought before courts in other States. 80 Addo 1988, p. 1426. 81 Bard 1985, pp. 1279-1289. Alston and Quinn 1987, pp. 220-221 critically assesses this position.
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failed to explicitly recognize the right to food, it is not part of international law. Second, the vague wording of the right to food prevents it from achieving legal status. Third, the obligation on the part of richer states to donate food to the poor is substantial, and extending this “…welfare concept […] to foreigners is grossly utopian.”82 Two authors have responded to this particular challenge, and sought to counter these arguments used by Bard.83 First, they note that implementation can be done through other means than legislative ones; second, they claim that the wording per se does not reduce the legality of a given article; third, the author’s observations on international obligations, are wrong. This study tends to agree with these three latter observations. Acknowledging that the realization of all human rights in the Covenant must be undertaken primarily through the adoption of targeted measures is crucial to our purposes in this book. Furthermore, every treaty is legally binding on the State parties, which must comply with the obligations of the treaty in good faith. Finally, a treaty is binding only within the territory of a ratifying State.84 It is acknowledged that there are different opinions regarding the legal status of human rights which are not explicitly recognized in national legislation, and thus not easily subject to a court proceeding. There are, however, two developments which should be observed. The first relates to the acknowledgement of justiciability of the recognized rights, or at least elements of the rights. The second relates to the confirmation that all human rights are interdependent. Both arguments will be briefly addressed. Justiciability: The Committee on Economic, Social and Cultural Rights gives the following definition of the two related legal concepts. ‘Self-executing rights’ are capable of being applied by the courts without further elaboration.85 ‘Justiciability’ refers to matters which are appropriately resolved by the courts.86 A brief outline of these two principles applied on economic, social and cultural rights will now be presented. Self-executing rights are partially a function of the character of the treaty – especially provisions relating to how the treaty shall be implemented nationally – but are primarily a function of how national legal systems incorporate international treaties. In practice,
82 Ibid, p. 1289. 83 Alston and Quinn 1987, pp. 220-221. 84 A treaty might also have extra-territorial effect, as when a State is committing human rights violations on the territories of another State, which is the case, inter alia, with kidnapping. 85 General Comment No. 9: “Domestic application of the Covenant”, paragraph 10. 86 Ibid. ‘Court’ can include international supervisory organs (treaty bodies) with a quasi-judicial mandate.
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
it is primarily a matter for national parliaments to decide whether the rights are self-executing and thus have direct effect,87 based on provisions of national legislation.88 Justiciability is determined by whether the specific rights are formulated in sufficiently precise and detailed terms, in order for the subject matter to be handled by a court procedure. An author notes that the obligations, and not the rights, are the basis for determining justiciability: “…it is only the breach of of core governmental obligations stemming from these rights which can be deemed justiciable.”89 The Committee on Economic, Social and Cultural Rights has attempted to list the provisions of the Covenant that are capable of immediate implementation.90 Still, there is lack of international jurisprudence for demonstrating such justiciability. This is acknowledged by one author, stating: “…the justiciability of economic and social rights – or at least some elements of them – has developed mainly through the complaint procedures under treaties on civil and political rights.”91 At this point, it is not necessary to analyze comprehensively whether the principle of justiciability is relevant for those human rights which are of particular interest for this study, analyzed in Chapters 5 and 6 below. As an indication, the terms in Article 11.1 and particularly Article 11.2 (‘fundamental right to be free from hunger’ and ‘shall take the measures which are needed’) seem at first glance stronger than the terms of Article 15.1 and 15.2 (‘recognize the right to enjoy’ and ‘steps to be taken include’). Interdependence: On the isssue of interdependence, the following principle is laid down in the Vienna Declaration and Programme of Action: “All human rights are universal, indivisible and interdependent and interrelated.”92 Furthermore, all human rights must
87 A sub-category of direct effect is the horizontal direct effect, relating to whether actions by third parties, inter alia private companies, are regulated by the provisions of the treaty. Horizontal direct effect has been identified in the European Court of Human Rights, but such horizontal direct effect is weak in the existing treaty provisions for economic, social and cultural rights; see Scheinin 2001, p. 40. 88 Norway can be an example of how national legislation provides for the incorporation of international treaties. In Norway, the Human Rights Act of 21 May 1999, as amended 1 July 2003, which in Section 2 incorporates the two UN Covenants, the Convention on the Rights of the Child, as well as the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, explicitly states in Section 3: “The provisions of the conventions and protocols mentioned in Section 2 shall take precedence over any legislative provisions that conflict with them.” 89 Tomasevski 1995, p. 206. 90 General Comment No. 3, paragraph 5; see also General Comment No. 9, paragraph 10, which underlines that these are “examples”. Article 11 is not recognized as being “capable of immediate implementation.” 91 Scheinin 2001, p. 32, notes that the European Court of Human Rights applies this “integrated approach”. Koch 2003, p. 39, gives warnings against relying too much upon this integrative approach. 92 A/CONF.157/23 of 12 July 1993, paragraph 5.
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be understood in light of the other human rights. It must also be noted that a leading legal author warns against distinguishing between different categories of human rights.93 A distinction can be made between ‘ordinary’ human rights and those human rights which give rise to jus cogens norms.94 The latter are generally held to stand out, not only from other human rights, but also from other norms under international law. It is not generally held that economic, social or cultural human rights constitute jus cogens norms. Summary: Economic, social and cultural rights must be considered as more than mere ‘aspirations’, but do have a legal content as well. The increased recognition of the legal nature of economic, social and cultural rights has also come as a result of jurispridence developed by courts mandated to address civil and political rights. 4.2.3
Interpretation and Implementation of Economic, Social and Cultural Rights: ‘Progressive Realization’ and ‘Violations’
In this section, an analysis will be made concerning the two approaches relating to realization of the recognized rights: the ‘progressive realization’ approach and the ‘violations’ approach. The first approach is based on Article 2.1 of the Covenant, implying that the available resources must be taken into account, but also implying an obligation to utilize these resources effectively, as well as undertaking all appropriate means to achieve the best possible realization of the recognized rights. The second approach is developed as a supplement to the first approach, emphasizing the need for judicial review in the courts in order to determine the compliance with the obligations of the Covenant through legal means.95 The study asks whether the ‘violations’ approach is a useful supplement to the ‘progressive realization’ approach. Progressive realization approach: The most important issue regarding economic, social and cultural rights is to which extent the rights are effectively protected. Human rights protection must be promoted by public policy in general. If the public authorities undertake to live up to the three levels of State obligations (respect, protect, fulfill), this is likely to lead to an appropiate enjoyment of the human rights.
93 Meron 1986, p. 22, states: “…hierarchical terms contribute to the unnecessary mystification of human rights, rather than to their greater clarity. Caution should therefore be exercised in resorting to a hierarchical terminology.” 94 See the Vienna Convention on the Law of Treaties, Articles 53 and 64. Slavery, torture, aggression, crimes against humanity, apartheid crimes and racial discrimination crimes constitute jus cogens norms, from which no derogation is permitted. There is a more in-depth analysis on jus cogens in Chapter 11.2.3. 95 See especially Chapman 1996 and Leckie 1998.
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
Progressive realization of the recognized human rights can take place through the adoption of legislative means, as well as measures in the social and scientific field, including budgetary measures.96 There are problems with applying a ‘progressive realization’ approach. First, there are many rights which shall be realized at the same time. With limited resources, both financial and human, the result can be that human rights problems requiring immediate action are prioritized. This is relevant for the right to food, as noted by one author: “…shelter, clean water, sanitation and primary health care are the cheapest to guarantee, given the use of appropriate technologies. Food is the most complex, since it involves interactions between agrarian policy, the structure of prices and wages, the form in which the residual guarantee of food security is assured and other factors.”97 Second, the supervision of the implementation of rights that shall be realized progressively, requires reliable statistical information. The requirements in the Guidelines for State reporting, outlining how States shall report on the existence of hunger or malnutrition, are particularly challenging. The State parties are asked to “…provide detailed information (including statistical data broken down in terms of different geographical areas)…”, with regard to 11 distinct vulnerable and disadvantaged groups.98 This requirement is impossible to meet for States with weak statistical data. Third, there are many examples of State bureaucracies not behaving rationally or in the interest of the inhabitants in the territory. The State organs might themselves be involved in the violations. If the basic aim is to provide effective protection for certain groups in certain situations, other approaches must also be applied. Fourth, progressive realization indicates that human rights are promoted as a part of general public policy, making it more difficult to identify the specific legal content of the human rights. This applies also to the manner in which States report to the Committee. Hence, there is a tendency that the various recognized rights will continue to be understood as vague prescriptions, and not as legally enforeable rights. Violations approach: A progressive realization approach will contribute to the general promotion of human rights, but not, however, to the enjoyment of rights for certain persons in certain situations. Some persons are unable to benefit from the strengthening of rights resulting from a general promotion of social policies, and might be unable to exercise their rights because these rights are not sufficiently respected or protected by the State. A violations approach seeks to identify under which circumstances a State does not comply with its obligations imposed by the treaty.
96 The real change will come about if the adoption of a law leads to changed practice in the field of budgeting, participation and accountability, as well as strengthened legal guarantees for individuals, including real access to administrative and legal remedies. 97 Beetham 1999, pp. 130-131. 98 Doc E/1991/23: ”Revised Guidelines Regarding the Form and Contents of Reports to be Submitted by State Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights”, reprinted in Eide et al. (eds.) 2001, Annex 1, see Article 11, paragraph 2(b).
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It is the failure to comply with an obligation which is considered to constitute a violation. This shows, once again, the importance of a precise understanding of the nature and level of obligations. The International Law Commission has adopted the Draft Articles on Responsibility of States for international wrongful acts (Draft Articles). While some of the articles might be relevant,99 these are difficult to apply as such in an analysis of human rights treaties, as such treaties must be considered as lex specialis to rules on State responsibility in the context of this analysis. Therefore, a particular ‘violations’ approach developed in the context of human rights, particularly economic, social and cultural rights, will be applied. A general principle of identifying a violation is given in the Limburg Principles: “A failure by a State party to comply with an obligation contained in the Covenant is, under international law, a violation of the Covenant.”100 Before a conclusion can be reached that a State is in violation of its obligations under the Covenant, there must be a specific consideration on whether the State has undertaken all appropriate steps for achieving a full realization of human rights and whether alternatives to the steps undertaken were available. Moreover, the steps taken should not make it more difficult to comply with its obligations in the future.101 The emphasis in the violations approach is both on what the State has done (acts of commission) as well as what the State has not done (acts of omission).102 An approach that seeks to identify violations of the recognized rights, rather than identifying how the rights can be gradually realized, also confirms the justiciable nature of the rights. The three levels of State parties’ obligations, outlined in Chapter 4.2.1 above, will be applied to identify the particularities of a situation in which the State fails to comply with its obligations. Respect: A State which interferes in the exercise of human rights in an unjustified manner so as to negatively affect the enjoyment of these human rights can be violating the relevant human right on the respect level. Forced removal of basic goods or the facilities and means to produce such goods are two obvious examples of violations. Protect: A State which fails to regulate private actors through legislation or regulations, or which actively supports such actors when they are involved in activities which remove goods or the facilities and means to produce such goods, can also be said to have acted in violation of the Covenant.
99 See the discussion on force majeure below. 100 The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights”, E/CN.4./1987/17, paragraph 70, reprinted in Eide et al. (eds.) 2001. 101 It is not sought here to answer whether the steps taken affect the degree to which the State can comply with its obligations imposed by other international treaties. 102 The Maastricht Guidelines states in paragraph 11: “A violation […] occurs when a State pursues, by action or omission, a policy or practice which deliberately contravenes or ignores obligations of the Covenant, or fails to achieve the required standard of conduct or result.”
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
Fulfill: A State which fails to take the required measures, inter alia, to prevent discrimination in the enjoyment of the rights, or fails to repeal a legislation which is manifestly incompatible with the obligations under the Covenant, can also be said to have acted in violation of the Covenant. These are measures within the category of ‘facilitate’ under the fulfill obligation. Although it is more difficult to identify violations as regards the use ‘to the maximum of its available resources’ (Article 2.1) for the fulfillment of human rights, the lack of resources devoted to mitigate the consequences of a serious underfulfillment of human rights can also represent a violation: “a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter or housing, or of the most basic forms of education is prima facie, failing to discharge its obligations under the Covenant.”103 Moreover, it is interesting to note whether there is a specific relationship between the category of violation and the level of obligations. Respect: The respect level will only relate to particularly serious acts of commission. Protect: As obligations on the protect level is primarily relating to measures to regulate third parties, particularly serious acts of omission can be violations on the protect level, but also particularly serious acts of commission are included. Fulfill: Obligations on the fulfill level are primarily relating to facilitation or provisions, both representing active measures, hence indicating that particularly serious acts of omission (‘failure to act’) can be violations. The repeal of such measures can be acts of commission, however, hence also representing violations. Applying an approach that focuses on violations of economic, social and cultural rights, is also riddled with problems, and three of them will be identified. First, the Committee has not applied this violations approach in the supervision of the national implementation when examining State reports. While violations are clearly identified in the general comments, the Committee rather applies the terms ‘non-observance’ or ‘failed to act in accordance with obligations’ in their examination of State reports.104 Second, it cannot be presumed that State parties accept all categories of violations as have been developed by the Committee in general comments. Third, the wording of the Covenant does not give much guidance in identifying when a violation has taken place. To sum up, the violation approach cannot be derived directly from the wording of the Covenant, but rather by an understanding that international treaties, as legally binding on the State parties, establish obligations to which the State party must comply. As the obligations are of a vague and imprecise nature, there might also be certain problems in identifying a violation. Furthermore, the lack of effective sanctions available in
103 General Comment No. 3, paragraph 10; reprinted in Eide et al. (eds.) 2001, Annex 2. 104 This must not be interpreted to indicate that the Committee does not consider the term ‘violation’ relevant. The Committee has applied this term in the General Comments and in its proposal for a draft ‘optional protocol’ to the International Covenant on Economic, Social and Cultural Rights (see E/C.12/1996/SR. pp. 44-49), as further elaborated by the Secretary–General in a document presented before the Commission on Human Rights (E/ CN.4/1997/105). An analysis on this optional protocol is given in Arambulo 1999; for recent reports on such optional protocol; see E/CN.4/2003/53 and E/CN.4/2004/44.
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cases where the Committee identifies a violation also explains some of the problems when identifying a violations approach as the only approach. The Maastricht Guidelines for violations of economic, social and cultural rights:105 An analysis of violations of economic, social and cultural rights has carried out by a group of prominent experts in international and human rights law.106 The experts found that “Governments have made firm commitments to address effectively economic, social and cultural rights…”107 Moreover, they referred to new conventions, the (then draft) Optional Protocol to the Convention on the Elimination of Discrimination Against Women, as well as the acknowledgement of human rights at seven UN summits. The Maastricht Guidelines were produced by leading scholars and key NGOs, and not by an intergovernmental body, but the principles that were developed have been used in subsequent interpretative efforts, including the subsequent general comments. In accordance with the findings in Chapter 3.3.2, on the “…teaching of the most highly qualified publicists…”,108 the Maastricht Guidelines can be understood as supplementary means of interpretation of international law, and as relevant for the present analysis. Initially, it must be mentioned that the Maastricht Guidelines introduce a specific methodology for assesssing the role of the State in the potential violations: the State can either be unable or unwilling to comply with the treaty obligation. In the first situation, it is the State which has the burden of proving that it is unable to carry out its obligations.109 In the second situation of unwillingness, the burden of proof is on those who claim that such violation has taken place. 105 The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 1997 reprinted in Human Rights Quarterly 1998, Vol.20, pp. 691-705, and in Eide et al. (eds.) 2001, Annex 4. 106 The Maastricht guidelines were adopted in 1997, and had a more explicit focus on ‘violations’ than the first meeting, held in 1986 (“The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights”, E/CN.4./1987/17). The latter identifies violations, in Part 1D. 107 Maastricht Guidelines, Article 3. 108 Statute of the International Court of Justice, Article 38.1(d). 109 Maastricht Guidelines, paragraph 13. Sepúlveda 2003, p. 298, finds that force majeure is by definition a situation of inability. This study will challenge this view. Force majeure is recognized in Article 61 of the Vienna Convention on the Law of Treaties as ‘impossibility of performance’. Article 61.2 says that such “[i]mpossibility of performance may not be invoked […] if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.” Moreover, international obligations of States is addressed in the ILC’s ‘Draft Articles on Responsibility of States for internationally wrongful acts’, presented in the ILC’s Report to the UN General Assembly in document A/56/10. Force majeure is addressed in Article 23 of the Draft Articles. The most interesting aspects of Article 23 is paragraph 2(b) of that Article, stating that “Paragraph 1 does not apply if […] [t]he State has assumed the risk of that situation occurring.” This implies a very narrow understanding of force majeure, while the term ‘inability’, as applied in paragraph 13 of the Maastricht Guidelines might apply in several situations, such as resource constraints.
The Nature of the Obligations and the Approach for Understanding Economic, Social and Cultural HR
The Maastricht Guidelines identify a long list of acts.110 Both the paragraphs on ‘failure to act’ (acts of ommission) and the paragraphs on ‘wrongful acts ’ (acts of commission) are formulated on a high level of generality. It requires detailed knowledge – when examining State reports – to actually prove that any of these failures or adoptions constitute a violation. Other acts are easier to identify as violations, such as “[t]he active denial of such rights to particular individuals or groups, whether through legislated or enforced discrimination”111 or “[t]he failure to implement without delay a right which it is required by the Covenant to provide immediately.”112 The Maastricht Guidelines are not particularly easy to apply, as they have a high level of generality. It is acknowledged, however, that the adoption of the Maastricht Guidelines was the result of a deliberate effort with the aim to identify specific acts which might – under certain circumstances – constitute violations of the obligations imposed by the rights recognized in the Covenant.113 Furthermore, the acknowledgement that at least the core elements of these rights can also be violated (see Chapter 4.2.1), is one of many countributions towards recognizing the justiciability of economic, social and cultural rights, which in turn might provide for a more effective implementation. The study will now identify the relevance of the acts identified in the Maastricht Guidelines for the purpose of this study. Based on the list of acts, two acts of ommission and two acts of commission can be identified as relevant in the context of this study. 110 Maastricht Guidelines, paragraphs 14 and 15 state (extracts): Violation through commission include: the formal removal or suspension of legislation; the active denial of such rights to particular individuals or groups, the active support for measures adopted by third parties which are inconsistent with economic, social and cultural rights; the adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations, the adoption of any deliberately retrogressive measure that reduces the extent to which any such right is guaranteed; the calculated obstruction of, or halt to the progressive realization of a right; and the reduction or diversion of specific public expenditure, when such reduction or diversion results in the non-enjoyment of such rights (paragraph 14) Violations through omission include the failure to: take appropriate steps; reform or repeal legislation inconsistent with an obligation of the Covenant; enforce legislation or put into effect certain policies; regulate activities of individuals or; utilize the maximum of available resources; monitor the realization of economic, social and cultural rights, including the development and application of criteria and indicators for assessing compliance; remove promptly any obstacles; implement without delay a right which it is required by the Covenant to provide immediately; meet a generally accepted international minimum standard, and take into account its international legal obligations in the field of economic, social and cultural rights when entering into bilateral or multilateral agreements with other States, international organizations or multinational corporations (paragraph 15). 111 Ibid, paragraph 14(b). 112 Ibid, paragraph 15(h). 113 It should be noted that two authors who have emphasized the vague and general wording of the Covenant (Alston 1991, p. 86; Craven 1995, p. 151), were also present at the expert seminar in Maastricht.
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Omission: The last act of paragraph 15 is on “[t]he failure to take into account its international legal obligations in the field of economic, social and cultural rights when entering into bilateral or multilateral agreements with other States, international organizations or multinational corporations.”114 Another paragraph addresses “[t]he failure to take appropriate steps as required under the Covenant.”115 These acts represent justified concerns. The former omission must be understood as more than merely procedural obligation, as it must be understood to imply that the States must consciously take into consideration such other obligations. The latter failure is also relevant. Commission: The relevant acts are “[t]he adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations…”116 and “[t]he adoption of any deliberately retrogressive measure that reduces the extent to which any of the rights in the Covenant is guaranteed.”117 These acts apply to situations where States adopt legislation making it impossible to comply with obligations under the Covenant. While these are examples formulated in general terms, they should not be disqualified. Chapter 12 analyzes if the adoption of TRIPS can be said to represent such legislation. Conclusion: An approach for identifying violations of economic, social and cultural rights, also relating to the right to food, is of great value. The identified acts relevant for the purpose of this study are not easy to concretize, however. It must be presumed to be difficult to determine when a State’s human rights obligations are not appropriately considered when an agreement is entered into, or when inappropriate steps have been taken. As seen above, both these are recognized as ‘acts of omssion’. The specific focus of this study is rather on whether the compliance with obligations under one treaty implies that it is impossible to comply simultaneously with the obligations under another treaty. It must be presumed that identifying some provisions of a treaty, finding that these are problematic in relation to another treaty, is not sufficient. Any analysis of treaties must be based on an understanding of the whole treaty as such, as well as how the treaty is applied and interpreted. One challenge is to identify actual conflict or compatibility between treaties, based on their wording and by applying the approach identified above. A related challenge is to analyze the potential consequences of complying with the treaties. The State authorites can find that by complying with their obligations under one treaty, this is likely to have certain negative impacts, inter alia, on the enjoyment of the rights recognized in a human rights treaty. For the State authorities, these represents relevant and legitimate concerns, independent of whether the entering into an agreement can be understood to constitute a ‘human rights violation’ or not.
114 115 116 117
Maastricht Guidelines, paragraph 15(j). Ibid, paragraph 15(a) Ibid, paragraph 14(d). Ibid, paragraph 14(e).
5
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights reads in Article 11: 1.
2.
The States Parties to the present Covenant recognize 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. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.
This chapter will elaborate on the right to food, as recognized in the Covenant, subsequently confirmed by UN conferences, in particular the 1996 World Food Summit and developed by the Committee on Economic, Social and Cultural Rights as well as others. The principles for the interpretation of international law, as well as human rights interpretative material presented in Chapter 3.2, will be applied. As the Covenant identifies both obligations of result and obligations of conduct, as shown in Chapter 4.2.1 above, the scope of each of these obligations as imposed by the right to food will be analyzed. With regard to obligations of conduct, this chapter will identify specific relevant measures within public policies which are important in order to enable everyone to exercise the right to food. This first section of the chapter will analyze the content of Article 11. In Chapter 5.2 there will be an examination of the relation-
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ship between improved food production and food distribution, as well as the environmental context in which the right to food must be understood. Finally, in Chapter 5.3, the international measures for increasing food production will be analyzed. A particular emphasis will be on the FAO – as the most important UN specialized agency for realization of the right to food – in particular its relationship to the Future Harvest Centers of the Consultative Group on International Agricultural Research (CGIAR). There are three reasons why this study will particularly focus on measures concerning the realization of the right to food. First, a focus on the listed measures will clarify whether the obligations arising from the right to food are being met, based on the understanding by the Committee on Economic, Social and Cultural Rights that there is an obligation under the Covenant to take steps or adopt measures. Second, little is written on how to understand the public measures listed in Article 11.2(a) in the context of increased private agricultural research, based on patent and plant variety protection. Third, as will be shown in Part IV, whether one treaty prescribes specific measures which impede on the adoption of measures prescribed by another treaty, constitutes one basis for identifying potential conflicts between treaties. 5.1
The Origins and the Content of the Right to Food
First, a brief overview of the emerging recognition of the right to food, appearing in international treaties only in the second half of the twentieth century, will be presented. An analysis of the scope of the right to food, emphasizing obligations of result and obligations of conduct, as well as obligations on the levels of respect, protect and fulfill, will then be conducted. 5.1.1
Emerging Recognition of the Right to Food
The first recognition of the right to food in international treaties was made in international humanitarian law treaties. The right to food was recognized in human rights
See General Comment No. 3, paragraph 2 (UN doc. E/1991/23, pp. 83-87, reprinted in Eide et al. (eds.) 2001, Annex 2). Bartels 2002 pp. 391-392, identifies as one category of trade measures ‘all measures under an agreement’ (‘mandated by’, ‘authorized by’ or ‘in support of ’ a treaty); the other two categories being ‘measures authorized by customary international law’ and ‘counter-measures in response to a violation’. Particularly the second category of measures (‘authorized by’) must be considered as applicable to the measures listed in Article 11.2(a) of the Covenant, and it cannot be presumed that the three categories of measures referred to by Bartels apply only to trade law. See Tomasevski (ed.) 1987 and FAO 1999a for an overview of relevant documents. The Third Geneva Convention relative to prisoners of war states in Article 18: “…effects and articles used for feeding remain in their possession.” Article 72 reads: “…shall be allowed to receive by post or by any other means individual parcels or collective shipments containing, in particular, foodstuffs…” The Fourth Geneva Convention, relative to the protection of civilian persons in time of war, reads in Article 55: “To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
treaties in Article 11 of the International Covenant on Economic, Social and Cultural Rights. It is considered a social right, a category which also includes the right to the highest attainable standard of health (Article 12), education (Articles 13 and 14) and housing (Article 11). The right to work; to decent working conditions; and to form and join trade unions (Articles 6-8), and to social security (Article 9) are examples of economic rights. The cultural rights are all recognized in Article 15, and include the right to take part in cultural life (15.1(a)), the right to benefit from science (15.1(b)), authors’ rights (15.1(c)) and the freedom indispensable for scientific research and creative activity (15.3). Despite the fact that they are recognized in a legally-binding treaty, the rights recognized in the Covenant have been considered by some (see Chapter 4.2.2) as political aspirations, not subject to immediate implementation. Among the explanations for this is that “…it is easier to assess the existence of a violation of a right when the State has acted in contravention of a specific prohibition than […] as the result of an omission…” The nature of most of the obligations arising from the rights recognized in the Covenant are relating to acts of omission. Chapter 4.2.3 found that acts of commission can also constitute violations of the recognized rights. It is important to be cognizant of the fact that the right to food was made more explicit during the negotiations of the Covenant by the inclusion of a second paragraph to Article 11. There are three stages of the drafting of Article 11. First, the Commission on Human Rights in 1951 and 1952 at its seventh and eight sessions, drafted two articles, one on the right to an adequate standard of living, and one on the right to adequate food, clothing and housing. Then, in 1957, the Third Committee10 of the General Assembly decided to combine these, having one article on an adequate standard of living, in-
should, in particular, bring in the necessary foodstuffs…” On the right to food in humanitarian emergencies, see FAO 2003a. Article 15.3 can be considered both as establishing a human right and as setting out a prohibition against State interference. Sepúlveda 2003, p. 154. Ibid, p. 156, identifies a continuum ranging from positive obligations to negative obligations. She finds that civil and political rights impose ‘obligations closer to the negative component’, and that economic, social and cultural rights impose ‘obligations closer to the positive’. Most interestingly, however, she concludes that such differences are not due to the ‘nature’ of obligations, but can be explained by the more developed implementation mechanisms developed for civil and political rights. It is no doubt that the information received from the FAO Director-General in 1963 that “…500 million persons were going hungry and over 1000 million more who suffered from malnutrition” (A/C.3/SR.1232, (1963) p. 93, paragraph 7) had a substantial impact on the decision by the delegates in the Third Committee of the UN General Assembly to include a specific provision on the right to be free from hunger. UN Doc. E/2573, Annex 1A. 10 The Third Committee is one of six committees working during the UN General Assembly, addressing human rights issues.
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cluding the right to food, clothing and housing.11 Finally, the whole of Article 11.2 on the right to be free from hunger was included in 1963 based on a text proposed by the FAO Director-General. Whether the adoption of a new paragraph implied a stronger recognition of both the rights and the corresponding obligations relating to food, will be examined. Some general observations on the relationship between Article 11.1 (‘an adequate standard of living for himself and his family, including adequate food’) and 11.2 (‘freedom from hunger’) will be made initially. The right to be free from hunger applies to fewer situations than the right to food.12 Moreover, Article 11.2 must be considered independently, but not separately, from the right in Article 11.1.13 Aware of these potential limitations, this book will analyze the compatibility between TRIPS and the right to food in the context of developing countries, as the overwhelming majority of hungry people in the world live in developing countries. Furthermore, it is acknowledged that 70 per cent of all hungry people live in rural areas,14 and the majority of these approximately 550 million persons are actually farmers themselves. Therefore, the right to be free from hunger is highly relevant for the purposes of this book. 5.1.2
Introduction to the Analysis of Article 11
As a premise for the analysis below, all human rights impose both positive and negative obligations. Moreover, all human rights impose both obligations of result as well as obligations of conduct. The two paragraphs of Article 11 will be analyzed in order to identify the extent to which they have a similar or a diverging scope. Initially, it seems that the wording of Article 11.2 is more specific, while the terms applied in Article 11.1 are more general. Furthermore, Article 11.1 recognizes the right to food within the context of the right to an adequate standard of living, while Article 11.2 recognizes the right to be free from hunger per se. It is not considered relevant to analyze whether the right to food actually exists. Such a renowned legal author as Brownlie earlier questioned the right to food, considering it not to be a legal right, but as belonging to the very vague and emerging ‘rights of peo-
11
UN Doc. A/3525 (Report of the Third Committee, Annexes of 11th Session of the General Assembly, 1956, Agenda Item 31, p. 17). 12 On the distinction between Article 11.1 and 11.2, see Künnemann 1998. But see Craven 1995, p. 317, stating that they share the same objective: realizing the right to food. 13 See Künnemann 2002, p. 168: “Strictly speaking, the right to freedom from hunger recognizes only the justified claims to food in order to prevent hunger, and imposes the corresponding obligations.” 14 See Pinstrup-Andersen and Cohen 2000a, p. 160.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
ple’15 or ‘Third Generation Rights.’16 Brownlie’s most recent edition, however, includes more positive findings regarding the legal recognition of the right to food, stating that this right has received considerable recognition as a legal standard.17 Brownlie has also elsewhere stated that Article 11 of the Covenant is a “…generally accepted standard of general international law…”18 It must be presumed that some of the misunderstandings relating to the right to food are based on wrong perceptions concerning how the right shall be enjoyed. The position stating that the right to food chiefly concerns the State providing food for its people is unfounded. This becomes evident when considered in light of the ‘respect, protect, fulfill’ approach mentioned above. It is only at the level of fulfill (provide) that the actual provision will be required. The efforts by State authorities on the other levels of obligations (respect, protect and fulfill (facilitate)) will normally apply in more situations. Several studies have contributed to a better understanding of these obligations relating to the right to food.19 Therefore, a precise understanding of what the right to food actually implies can be reached by analyzing the terms of the two paragraphs of Article 11, as well as making use of relevant interpretative material, including general comments. When necessary for clarifying the terms, reference will be made to the travaux préparatoires of Article 11.20 5.1.3
Article 11.1
The different elements of Article 11.1 will be clarified. 15
16 17 18
19 20
Brownlie 1998, pp. 582-583. Brownlie lists the rights belonging to these ‘rights of people’ as the right to food, the right to a decent environment, the right to development and the right to peace. Among these four, the right to food is exceptional. The right to food is already recognized in legally-binding treaties, a fact which is not shared with the other ‘emerging’ rights to which are referred. Also, the right to environment must be considered to be generally recognized as a human right under certain circumstances, given that there is a sufficiently strong relationship to another recognized human right. The right to environment has been interpreted both in the context of the right to privacy (Article 8 of the European Convention of Human Rights and Fundamental Freedoms), in the context of the right to health (Article 12 of the International Covenant on Economic, Social and Cultural Rights) and in the context of rights over natural resources (Article 1.2 of the Covenant); for a discussion, see Hancock 2003. Brownlie 2003, p. 541. Ibid. Brownlie 1987, p. 9, paragraph 16. In his 6th Edition (2003, p. 541, note 49) he quotes, inter alia, his own study from 1987. The right to food can more appropriately be understood as conditions allowing access to food, impacted by all social and economic rights, and based on the ‘capabilities approach’ developed by Amartya Sen, in which ‘human agencies’ are more important than ‘duty placed upon States to act’ in order to fulfill the human right to adequate food (Brownlie 1987, pp. 12-15). See Eide 1987, Eide 1999, Craven 1995, in particular pp. 287-351, and Alston and Tomasevski (eds.) 1984. For an excellent presentation of the whole negotiating process, see Craven 1995.
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‘Adequate standard of living’: The recognition of the right to food as constituting an element of an adequate standard of living is the basis of Article 11.1. This implies that the right to food cannot be understood in isolation. Moreover, to enable everyone to enjoy an adequate standard of living must clearly be considered as an obligation of result. No other provision of the Covenant applies the term ‘adequate’.21 The term ‘adequate’ means ‘satisfactory or acceptable in quality or quantity’.22 ‘Adequate standard of living’ must be considered to refer to a situation in which the necessary basic needs are met, in order for a person to be able to exercise his or her other human rights. What is ‘adequate’ might vary between climate zones as well as between individuals, but there is no doubt that, concerning food, the term ‘adequate’ must refer to a minimum daily food intake, measured in standardized and objective terms. What is ‘adequate’ must also be determined by the general standard of living in a given society. Irrespective of this, however, ‘adequate’ refers to the fulfillment of certain basic needs. How General Comment No. 12 on the right to adequate food defines ‘adequate’ must be examined. Under the heading ‘Adequacy and sustainability of food availability and access’ in the section on ‘normative content’, three different concepts are presented: accessibility, availability and acceptability.23 These concepts determine the conditions for identifying when the right to food is fulfilled. General Comment No. 12 presupposes that only when all of these conditions are satisfied, has the right to food been fulfilled. Availability of food relates to how the food is provided, considering the quantity and quality of the food. Availability is secured either by feeding oneself directly, or by having access through “well-functioning distribution, processing and market systems…”24 Accessibility is determined by how the available food actually reaches the people. This food shall be provided in ways that are sustainable. Accessibility encompasses both physical and economic accessibility.25 Acceptability requires that the food is acceptable within a given culture, which also relates to food quality. General Comment No. 12 itself presents these terms in a somewhat confusing manner. Acceptability is firstly presented as an element constituting availability, but is later identified as a separate category. Sustainability is said to constitute an element for determining accessibility, but is probably as important in constituting availability. Biological resources that are not harvested sustainably, including food plants, have limited availability, at least within a period of time. While the introduction of these three terms, availability, accessibility and acceptability, are important concepts for determining different dimensions of the right to adequate food, it is not found to contribute to a much clearer understanding of the term ‘ad21 What was subsequently to become Article 12 of the right to health, defines the right by the terms ‘highest attainable standard’. What was later to become Article 7(a)(ii), relating to conditions of work, makes use of the term ‘decent living’. 22 The New Oxford Dictionary of English 2001 23 The Committee also refers to quality, most explicitly in paragraph 8, but also in paragraphs 10 and 11, which might be included as a fourth category to constitute the normative content of the right to food. 24 General Comment No. 12, paragraph 12. 25 Ibid, paragraph 13.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
equate’. General Comment No. 12 states with regard to adequacy: “the precise meaning of ‘adequacy’ is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions…”26 While this is of importance, it does not define the qualitative element of the term ‘adequate’. In order to clarify or confirm this understanding of the phrase ‘adequate standard of living’, the travaux préparatoires will be explored. The Commission on Human Rights discussed, in its seventh session, the concept of an adequate standard of living.27 Some delegations proposed that this article related to all other rights of the Covenant, and should therefore be placed before the other rights. There was also another proposal for including – before the other provisions – an article affirming that every human being has the fundamental right to food and life.28 The term ‘adequate standard of living’ was proposed by Australia, and was preferred to other terms, such as ‘improved standards of living’.29 While the Universal Declaration of Human Rights links ‘an adequate standard of living’ to ‘health and well-being, including food’, the Covenant links ‘an adequate standard of living’ directly to food. By introducing the term ‘adequate’ before the terms ‘food, clothing and housing’, it was understood that this would clarify the text and confirm that these components of the standard of living should be maintained at a certain level. Moreover, an agreement was reached that the right to food should be listed first, as this right was more important in underdeveloped countries with a rural economy.30 Discussions continued in the Third Committee of the General Assembly on the use of the term ‘adequate’. It was generally understood that this was clearer than – and therefore preferred to – other terms, such as ‘decent’.31 One delegation, discussing the relationship between ‘adequate’ and ‘decent’, claimed that the latter was more appropriate, as it connoted a higher standard of living than a merely adequate one, which could be interpreted as relating primarily to only the basic necessities of life.32 From the travaux préparatoires of Article 11, it is clear that the term ‘adequate’ was preferred, although some States were in favor of using terms which were understood to imply even stronger obligations. Therefore, in line with what was expressed by delegations, the term ‘adequate’ connotes certain quality. Moreover, the right to adequate food as ‘embedded’ in the right to an adequate standard of living will be analyzed. There are two aspects of the right to food ‘embedded’ in an adequate standard of living which should be assessed. 26 Ibid, paragraph 7. 27 The discussion was based on an Australian proposal (E/CN.4/AC.14/2/Add.3), see E/CN.4/ SR.223 (1951), pp. 4-7. 28 French proposal, E/CN.4/SR.223 (1951), p. 7. See also UK E/CN.4/SR.222 (1951), p. 18, stating that “…the greatest anxiety in the future world would be world food supply.” 29 U.S. proposal (E/CN.4/582), see E/CN.4/SR.222 (1951), p. 16-17. 30 Chinese proposal, E/CN.4/SR.294 (1952) p. 5. 31 United Kingdom (A/C.3/SR.742 (1957), p. 303, paragraph 10: “…the word ‘adequate’ added something to the meaning by stressing that those components of the standard of living should be at a certain level.” 32 Philippines, A/C.3/SR.740 (1957), p. 299, paragraph 28.
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First, when analyzing the right to food within the context of an adequate standard of living, it can be understood that the right to food can only be exercised after people have experienced an adequate standard of living. This cannot be presumed to be correct. Rather, the focus should be on the basic recognition that enjoyment of certain basic goods constitutes both crucial elements in identifying an adequate standard of living, as well as constituting human rights per se. Second, the right to food, as recognized as one element of Article 11.1, is less visible in comparison to a situation in which a whole article is devoted to the right and the corresponding obligations imposed by the right. This is important to note. There is general agreement that this linking of food, housing and clothing to the adequate standard of living should not imply that these rights are not considered as constituting human rights,33 but rather emphasizing the interrelatedness of different social human rights. In addition, specifically regarding the right to food, the inclusion of Article 11.2 implies that there can be no doubt that this particular human right is recognized. ‘Continuous improvement of living conditions’: The first sentence of Article 11.1 reads (extracts): “…recognize 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.” The term ‘and’ used before the latter phrase could indicate that this is a substantive, independent right, in addition to the right to ‘an adequate standard of living’. The wording does as such not distinguish between these two phrases appearing after the phrase ‘recognize the right’. It does not seem reasonable, however, that the right to a continuous improvement of living conditions is a substantive, separate right, and has never appeared in the literature as a substantive human right. Therefore, in the absence of the term ‘including’ replacing the term ‘and’, this study takes it for granted that the right to a continuous improvement of living conditions is an element in the right to an adequate standard of living, including food. This phrase also emphasizes an obligation of result. A ‘continuous improvement of living conditions’ must be considered to be the result of a whole series of deliberate efforts, involving all aspects of public policy. The term ‘continuous’ must be considered to confirm and be consistent with the principle of progressive realization of economic and social rights, recognized in Article 2.1. While it can be understood to specify the general obligation of Article 2.1 with regard to the rights recognized in Article 11.1, it is not found that it sets out any stronger obligation that the general obligation already identified in Article 2.1.34 The phrase is similar to the UN Charter Article 55(a), stating that “…the United Nations shall promote […] higher standards of living, full employment, and conditions 33 For a discussion on the right to housing, addressing the question as to whether there is a right to housing, see the Report from a meeting of human rights experts, held under the auspices of the UN High Commissioner for Human Rights and the United Nations Centre for Human Settlements (Habitat); see <www.unhabitat.org/programmes/housingrights/documents/ExpertGroupReport18-19-Jan96.htm>. 34 As already shown in Chapter 4.1.1, Article 2.1 is clarified by General Comment No. 3. See General Comment No. 12, paragraph 14.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
of economic and social progress and development”. It is difficult to identify the precise obligations derived from this phrase. There are no other human rights treaties which apply a similar phrase to that of the Covenant.35 The study will now analyze whether the term ‘continuous improvement’ is made clearer through subsequent non-binding documents adopted as an outcome intergovernmental processes. While both the 1996 Rome Declaration on World Food Security, as well as the World Food Summit Plan of Action include strong commitments,36 they do not include any paragraphs which indicate a different understanding of this phrase. The 2004 Voluntary Guidelines also acknowledges that there is an “…obligation to achieve progressively the full realization of the right to adequate food.”37 Similarly, General Comment No. 12 confirms this understanding of the Covenant’s provisions.38 The travaux préparatoires do not contribute to a clearer understanding of the phrase ‘continuous improvement of living conditions’.39 It should be noted, however, that during subsequent discussions of the Third Committee, there were attempts to define this right to ‘continous improvement of living conditions’ as applying in particular to the most marginalized, as people with sufficient living conditions were not in need of any improvement.40 This proposal was not endorsed. While the right to an continuous improvement of living conditions applies generally, the State obligations imposed by this element of an adequate standard of living must be observed particularly with regard to the most vulnerable. ‘To ensure the realization of this right’: In this phrase, indicating an obligation of process, the term ‘ensure’ is interesting. The term is only applied in one other provision in the Covenant, namely Article 8 on rights relating to trade unions. This right, in Article 8, is generally considered as one of the strongest and most enforceable rights of the Covenant.41 The New Oxford Dictionary of English defines ensure as “make certain of obtaining or providing something.”42 The meaning of ‘ensure’ hence comes close to ‘guarantee’, which must be considered to be a strong obligation.
35 The Convention on the Rights of the Child includes a similar notion in the second preambular paragraph: “… determined to promote social progress and better standards of life in larger freedom…” 36 The sixth paragraph of the Declaration reads “…emphasize the urgency of taking action now to fulfill our responsibility to achieve food security for present and future generations.” The Plan of Action states in paragraph 7.4(a): “…governments will, as appropriate […] make every effort to implement the provisions of Article 11…” 37 Preambular paragraph 17. Preambular paragraph 11 refers to Articles 55 and 56 of the UN Charter. 38 See in particular, paragraphs 6, 14 and 21 of General Comment No. 12. 39 Yugoslavian proposal, E/CN.4/SR.223 (1951), p. 5. The phrase was included in the Covenant with a small majority (6 votes to 5 with 7 abstentions) (ibid, p. 8). 40 Belgian proposal, A/C.3/SR.743 (1957), p. 309, paragraph 8. 41 See Brownlie 1998, p. 576. 42 New Oxford Dictionary of English 2001.
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General Comment No. 12 does not elaborate on this term. Therefore, one must turn to the Human Rights Committee, which in General Comment No. 3 on Article 2 of the International Covenant on Civil and Political Rights,43 emphasizes: “…the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction. This aspect calls for specific activities by the States parties to enable individuals to enjoy their rights.” This is repeated in General Comment No. 31: “…ensure the Covenant rights for all persons in their territory…”. Moreover, the Human Rights Committee applies the term ‘ensure’ in the context of “…ensure compliance with the Covenant obligations”.44 By this understanding, it seems that at least elements of an obligation of conduct are imposed by this phrase. As it is important to confirm this understanding, the travaux préparatoires of Article 11 will be examined. Not much is said about the term ‘ensure’. The French delegation understood the term to signify that the implementation of the rights in Article 11 should be immediate, and therefore rejected this term.45 The term ’ensure’ was kept, and there were no attempts of amending this wording at subsequent sessions where other provisions were amended in order to allow for more flexible implementation of the rights. The delegates were aware of the stronger obligations in applying the term ‘ensure’. Therefore, it is determined that the term ‘ensure’ implies that States agreed to take upon themselves strong obligations, in order to fulfill the right to an adequate standard of living, including the right to adequate food. This must furthermore imply that the term ‘ensure’ was included with the understanding that this would imply relatively stronger obligations on the State parties. ‘Will take appropriate steps’ is an obligation of conduct. The generality of this phrase implies that it cannot refer to a specific policy or actions as long as the steps are appropriate, that is, contributing toward the realization of the recognized rights.46 The term ‘step’ of Article 11.1 is similar to ‘means’ applied in Article 2.1, and does not add anything specific to the general obligations already included in Article 2.1. The terms ‘undertake’ and ‘will’ have no different meaning. Finally, it must be noted that States expressed reservations to include references to specific actions to be undertaken.47
43 Human Rights Committee 1981; replaced in 2004 by General Comment No. 31. While General Comment No. 31 replaces General Comment No. 3, it cannot be assumed that General Comment No. 3 is repealed by the adoption of General Comment No. 31. 44 General Comment No. 31, paragraph 12. 45 France (A/C.3/SR.742 (1957), p. 304, paragraph 14) stated the “…the impossibility of immediate implementation”, and said that this was contrary to Article 2 of the Covenant. 46 The term ‘appropriate’ was clarified in Chapter 4.1.1 above, in the context of ‘appropriate means’. 47 See the Guatemalan delegation in the General Assembly’s Third Committee: “It was not intended that States should be directed to do anything specific” (A/C.3/SR.739 (1957), p. 293, paragraph 9).
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
‘The essential importance of international co-operation’ is also an obligation of conduct, and the reference to international cooperation is unique to Article 11.48 Interestingly, several delegations, when arguing for including a reference to international co-operation, confirmed the specific importance of Article 11 in relation to the other rights of the Covenant.49 Concluding this analysis on Article 11.1, the right to food is not weakened by being recognized within the context of an adequate standard of living, but rather is recognized within the context of the other human rights. Moreover, the emphasis is on obligations of result, and the phrases indicating obligations of conduct do not add to the general obligations in Article 2.1 of the Covenant. The delibarate inclusion of the term ‘ensure’ indicates that the States wanted to take upon themselves these strong obligations. 5.1.4
Article 11.2
By analyzing this paragraph which recognizes the right to be free from hunger, it will be considered whether the elements included in Article 11.2 indicate that stronger obligations can be ascertained than those identified above under Article 11.1. The most noteworthy aspect of the phrase ‘recognize the fundamental right to be free from hunger’, is the term ‘fundamental’. It is crucial to note that the wording ‘fundamental’ (‘of great importance’) is only found in one other provision of the Covenant, namely Article 5.2, prohibiting any ‘restrictions upon or derogations from any of the fundamental human rights recognized’. During the drafting process, the word ‘fundamental’ was deleted from other articles in the Covenant. Seen together with the wording ‘ensure’ in Article 11.1, indicating a rather strong and immediate obligation,50 it can be stated that the right to food is strongly recognized in the Covenant. Moreover, the context where the term ‘fundamental’ appears (Article 11.2) implies that it must be related to the right per se, unlike if it had appeared in the context of Article 11.1, where the term could both refer either to the right per se, or to the fundamental position of the right within an adequate standard of living. On the other hand, it has been asserted that the travaux préparatoires do not indicate that Article 11.2 was intended to stand out from the other articles of the Covenant, which had the term ‘fundamental’ deleted.51 The inclusion of Article 11.2, however, contributes further to an explicit recognition of the right to food, not only as a component of the right to an adequate standard of living.
48 The phrase ‘international co-operation’ appears in Articles 1.2, 2.1, 11.1, 11.2 and 15.4, while Article 23 uses the phrase ‘international action’. 49 The Japanese delegation stated: “Article 11 had a place distinct from other articles, for it was concerned with life and death; for example, education and hygiene were not as essential to survival as food, housing and clothing were” (A/C.3/SR.742 (1957), p 306, paragraph 39). 50 Compared to the original draft, another element of the final wording of Article 11.2 was somewhat weaker, as the phrase ‘within the shortest possible time’ was deleted. 51 Craven 1995, p. 299: “the travaux préparatoires give no indication that it [the right to be free from hunger] be given any pre-eminence among the range of human rights.”
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It should be noted from the travaux préparatoires that the proposed text from the Director-General of FAO to the Third Committee in 1963 was amended during the discussion which resulted in a stronger text than his original proposal.52 The original proposal read, ‘recognize the fundamental importance of the right to be free from hunger’, while the final version referred directly to the fundamental right to be free from hunger.53 This also confirms what was found regarding the term ‘fundamental’ above. Another important question is what is meant by the term ‘hunger’. The term ‘hunger’ is considered as being imprecise and “…without a proper scientific definition.”54 Hunger can result from the individual’s lack of fulfillment of his or her dietary needs. In this study there will be a strict understanding of what constitutes hunger, in accordance with the wording of the Covenant, being aware that other terms are also applied in the literature.55 Hunger exists as a consequence of food deprivation, or not having enough to eat. While ‘hunger’ is an objective condition, it does have a subjective element, unlike serious situations as starvation or famine, which are objective conditions resulting from long-term lack of nutrients. Moreover, the fact that some persons claim to be hungry does not imply that hunger necessarily exists in that State. Hunger, however, is more than being hungry, as it represents a more desperate situation. Initially, it cannot be presumed that the inclusion of the second paragraph of Article 11 introduces a new right. Rather, the right to be free from hunger contributes to a more comprehensive understanding of the right to food, based on a common understanding of the need to eliminate hunger. One author notes that the ‘core content’ of the right to food is the right to be free from hunger.56 In General Comment No. 12, the Committee states that a violation of the right to food occurs when the State fails to ensure the satisfaction of the minimum essential level required to be free from hunger.57 A related question is whether Article 11.2 only applies to States where people suffer from hunger. Does this imply that only in situations of hunger does Article 11.2 apply?58 As observed above, hunger is not equal to famine, as the latter is more serious.59 As all 52 A/C.3/SR.1232 (1963), p. 93-95, paragraphs 1-20. Especially in light of his information on the number of hungry and malnourished persons, delegations generally spoke in favor of including his proposal in the draft Covenant, but the indication of specific measures caused concern (see below). 53 A/C.3/SR.1268 (1963), pp. 293-294, paragraphs 1 and 12 (emphasis added). 54 Banik 2003, p. 59. 55 Starvation and famine represent even more serious situations than hunger, often leading to increased mortality among the most vulnerable groups. For definitions of starvation and famine, emphasizing that the latter is the result of a longer process of starvation, see Banik 2003, pp. 68-85. 56 Künnemann 1998, p. 169. 57 General Comment No. 12 (UN doc. E/2000/22, pp. 102-110), paragraph 17. 58 Another indication that measures might come close to the understanding of obligations is that in a comprehensive study on Article 11, Craven presents the different measures of Article 11.2(a) under the title ‘Specific State Obligations’ (Craven 1995, p. 316). 59 Banik 2003, Chapter 3, presents definitions of famine and related terms.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
States have people who are falling outside of the work or welfare system, living on the streets or as drug addicts, there are people suffering from hunger in all States, including those States where there has been no public declaration of hunger. Therefore, Article 11.2 is not limited to apply in the most severe situations of food shortage. Regarding the obligation of result under Article 11.2, this obligation is not different from the obligations of result as identified under Article 11.1. If the right to adequate food is fully realized, there would be no person suffering from hunger. At the same time, the realization of the right to adequate food demands more from the States than merely the fulfillment of the right to be free from hunger. Article 11.2 directs stronger attention towards the fulfillment of the right to food for the hungry. ‘Shall take, individually and through international co-operation, the measures, including specific programmes which are needed’. This is an obligation of conduct. The phrase ‘shall take the measures which are needed’ must be understood to be stronger than the phrase ‘will take the appropriate steps’ of Article 11.1. It must be remembered, however, that Article 11.2 applies to fewer situations, characterized by hunger. Articles 11 and 12 (the right to health) are the only articles of the Covenant which identify specific ‘steps’ or measures. Article 12.2 reads: “The steps to be taken […] shall include those necessary for…” This phrase of Article 12.2 does not necessarily give rise to stronger obligations than the phrase ‘shall take the measures which are needed’ (Article 11.2). It appears rather that Article 11.2 is more explicit, as the term ‘shall’ is stronger than ‘to be taken’, and as there is no substantial distinction between ‘needed’ and ‘necessary’. The most interesting aspect of Article 11.2 of the Covenant is that it identifies in 11.2(a) several concrete measures, that shall be undertaken individually and through international co-operation. The content of the specific measures will be explored further below; here it will be analyzed whether the State has a margin of discretion whether or not to undertake the measures prescribed in Article 11.2(a). The term ‘measure’ is defined as ‘an official action that is done in order to achieve a particular aim’.60 Based on this understanding, is it sufficient that any official action is undertaken, as long as it contributes to the particular aim, or is the State obligated to undertake specific acts to be compliant with Article 11.2? In accordance with the general principle of margin of discretion, the State should itself determine how to comply with the obligations.61 The State’s margin of discretion is not absolute.62 In accordance with Article 2.1 of the Covenant, it is only in the rare circumstance when a State has reached ‘full realization of the rights recognized in the present Covenant by all appropriate means’ that no further measures are needed. 60 Oxford Advanced Learners’ Dictionary (www edition); see also Chapter 4.1.1 on the terms ‘means’, ‘steps’ and ‘measures’. 61 See General Comment No. 12 paragraph 21: “The most appropriate ways and means of implementing the right to adequate food will inevitably vary significantly from one State party to another.” 62 See General Comment No. 3, paragraph 4, declaring that the State should indicate how the measures undertaken are considered to be the most appropriate, and that the Committee can conclude on whether all appropriate measures have been taken.
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In order to determine whether this is an appropriate clarification of obligation of conduct under Article 11.2, the travaux préparatoires will be further examined. While the delegations were skeptical to include any reference to anything ‘specific’ in the negotiations over Article 11.1, the proposal from the FAO Director-General to list specific measures in Article 11.2 was received positively. During the negotiations, several of the delegations expressed reservations against including such specific measures of implementation,63 but a consensus gradually developed. The decision to include such measures was made by consensus, with one abstention.64 Some delegations underlined the need for more specific elaborations of the measures, by the Second Committee65 of the UN General Assembly, or by the UN specialized agencies.66 During the discussion, arguments were presented in favor of identifying specific areas for implementation, without making these measures of implementation too specific.67 Though there were some concerns raised on their specificity, the “methods of implementation […] were considered sufficiently general not to bind a State to any particular course of action.”68 Furthermore, the Third Committee discussed whether the word ‘necessary’ should be introduced before the word ‘measure’,69 but this did not win support. It was therefore not a matter for the State alone to decide that they do not need to take certain measures,
63 The concerns were most comprehensively formulated by the Netherlands (UN Doc. A/C.3/ SR.1266 (1963), paragraphs 57-63) – in commenting on two draft proposals (A/C.3/L.1172 and A/C.3/L.1175): – ‘too detailed’ (paragraph 59); – beyond ‘the competence of the Third Committee’ (paragraph 60); – ‘inconsistent to single out only one [of the rights recognized in article 11.1] in the second paragraph of the same article’ (paragraph 61.); – ‘fit more appropriately in a declaration than in a legally binding instrument’ (paragraph 62). After the vote, in which the Netherlands voted in favor, the head of the delegation expressed its support for the paragraph this way: “His misgivings, which had related solely to technical points, had not been entirely dispelled by the revised text, he appreciated the efforts of the sponsors to meet the difficulty experienced by his and other delegations. […] Furthermore he “wholeheartedly supported the basic purpose of the proposal” (A/C.3/SR.1269 (1963), p. 299, paragraph 5). 64 UN Doc. A/C.3/SR.1269 (1963), p. 298, paragraph 2. Pakistan abstained and had previously argued that “…plans for rural economic development would naturally differ from country to country.” (UN doc. A/C.3/SR.1264 (1963), p. 271, para. 4). 65 The Second Committee of the UN General Assembly deals with social and economic issues. 66 See, inter alia, Netherlands (above) and Pakistan (above). 67 As stated by Australia: “it was quite fitting that it [the Third Committee] should indicate the general areas in which Governments must take action” (A/C.3/SR.1267 (1963), p. 287, paragraph 8). 68 For a general overview, see Craven, pp. 298-301. 69 A/C.3/SR.1268 (1963), p. 294, paragraps 18-22.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
as these are not ‘necessary’. This indicates that the States were intending to take upon themselves relatively strong obligations. The adoption of certain measures, such as adoption of new legislation70 or various programs for awareness-raising, do not necessarily involve high costs. The emphasis in Article 11, as also emphasized by the Committee,71 is on the cost-effective use of resources for the realization of the right to food. There can be no doubt that full realization of the right to food will require policy measures in a wide range of fields.72 In Article 11.2, the term ‘measure’ is followed by the phrase ‘including specific programmes’. The relationship between a measure and a specific program is not clear from the terms applied. Two examples can be provided: a nation-wide effort for primary school pupils and their parents with the aim to increase the intake of diary products could be a program within the measure ‘disseminating knowledge of the principles of nutrition’. Providing funding for enhanced grain storage or equipment for food storage could be a program within the measure ‘conservation of food by making full use of technical and scientific knowledge’. As the term ‘measure’ encompasses the term ‘specific programme’ it is not considered relevant to elaborate on the term ‘programme’. Therefore, the State must, as a minimum, consider the prescribed measures of Article 11.2(a), and whether it is appropriate to undertake these measures in light of the specific circumstances prevailing in their territory. During the negotiations, there was little disagreement over the specific measures to be included.73 The delegates, responding to the FAO intervention in 1963, recognized the seriousness of the global hunger problem, and thus decided on specific measures for the realization of the right to food on both the national and the international level. Moreover, Article 11 stands out from the other provisions of Part III of the Covenant by emphasizing international cooperation.74 Particularly regarding improved methods of food production (see below), exchange of knowledge and agricultural research will also benefit people outside the borders where the research originated. In a serious situation of hunger, a State will rely on international assistance for distribution of food. Long-term strategies in the field of natural resource conservation and food production are important in order to avoid future situations of hunger. As to whether and how these measures shall be undertaken depend to some extent on the specific problem of hunger and malnutrition facing the specific country. By the 70 Legislation is not mentioned among the listed measures in Article 11.2(a), but this cannot be interpreted to mean that legislation is not relevant. First, Article 2.1 applies generally. Second, as legislation is crucial in programs of agrarian reform, adopting legislation is implicitly recognized under Article 11.2(a). 71 General Comment No. 12, paragraph 21. In General Comment No. 3, the Committee states in paragraph 10: “…each State party […] must demonstrate that every effort has been made to use all resources...” 72 See Beetham 1999, pp. 130-131, emphasizing that guaranteeing the right to food is complex. 73 The discussion was primarily on the wording ‘developing or reforming agrarian systems’. It was agreed that the specific country circumstances would determine to which extent this measure would be necessary. 74 International cooperation is also included in Article 15.4, but is rather non-specific.
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inclusion of Article 11.2, the right to food was recognized beyond only being part of the right to an adequate standard of living. Whether paragraph 11.2 adds anything to Article 11.1, with regard to the obligation of conduct, is answered by analyzing Article 11.2(a).75 5.1.5
Article 11.2(a)
The listing of measures in Article 11.2(a) cannot be considered to be exhaustive,76 but identifies social, educational and scientific policies as particularly important. The measures under Article 11.2(a) have been characterized as mere ‘methods’ or ‘intentions’.77 The scope of Article 11.2(a) will be identified, in particular whether this paragraph contains obligations of conduct which go beyond the wording of Article 11.1 and 11.2, seen in light of Article 2.1. As an initial hypothesis, while Article 11.2(a) cannot be understood to instruct States with regard to the policies they shall undertake, the measures must be considered to give directions and identify areas of relevance for policy implementation. In order to gain a clearer understanding of the structure of Article 11.2(a), a distinction will be made between the initial ‘objectives’ and the subsequent ‘measures’ or ‘means by which these objectives might be achieved’.78 Alston, by proposing this distinction, finds that the paragraph “…is a relatively confused and by all means no all-embracing mixture of means and ends.”79 In Article 11.2(a) there are three objectives: 1) to improve methods of food production; 2) to improve methods of food conservation; 3) to improve methods of food distribution. 75 The final part of Article 11.2, on ‘problems of both food-importing and food-exporting countries’ in 11.2(b), will not be analyzed in this book as the issue of patent and plant variety protection does not relate directly to the issue of import and export. A possible situation could be if a patent holder is able to restrict the importation of food in accordance with Article 28 of the TRIPS Agreement. Article 11.2(b) is important in the context of the present high levels of conflict regarding the Agreement on Agriculture in the WTO, addressing issues of overproduction, subsidies and dumping. 76 See Alston 1984, p. 34, and Craven 1995, p. 316. The Committee asserts in their general comment on State parties’ obligations: “…the phrase ‘by all appropriate means’ must be given its full and natural meaning” (General Comment No. 3, paragraph 4). There is no emphasis on legislation in the whole Article 11, but all provisions in Part III must be seen in light of Article 2.1. Moreover, ‘national framework legislation’ is addressed in paragraphs 29 and 30 of General Comment No. 12. 77 The term ‘intention’, referring to Article 11.1 of the Covenant, was used by the Québec Supreme Court in a ruling from 1992 (Gosselin c. Québec). The court argued in paragraph 198 that the term ‘security of the person’, was not included in the International Covenant on Economic and Social and Cultural Rights, and referred inter alia to Article 11.1, stating in paragraph 199 that the phrase “prendront des measures appropriées” signaled “…a mere intention, at most”. The position that the Covenant merely consists of ‘intentions’ is a view to which Craven objects (Craven 1993, p. 400). 78 Craven 1995, pp. 317-323, applies the terms ’subsidiary objectives’ and ’specified measures’. 79 Alston 1984, p. 23. Alston is a former chairperson (1991 to 1998) of the Committee.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
In addition, the following measures are identified: 4) making full use of technical and scientific progress; 5) disseminating knowledge of the principles of nutririon; 6) developing or reforming agrarian systems. Furthermore, the final phrase ‘in such a way as to achieve the most efficient development and utilization of natural resources’ applies to the whole paragraph, and not only to the last part of it.80 Such development and utilization is a prerequisite for food production. This study will concentrate on the objectives of food production and distribution, as well as the measure of making full use of technical and scientific progress, and the underlying objective of ‘most efficient development and utilization of natural resources’. These elements are most relevant in the context of this study. Improved methods of food conservation will be given less emphasis, as this objective is of relatively less importance in the context of this study,81 and it is not elaborated upon in General Comment No. 12.82 This emphasis must not be interpreted to mean that the remaining measures are considered to be of less relevant in the wider context of the right to food. These measures will be analyzed with regard to the most vulnerable and food insecure, in accordance with paragraph 13(b) of General Comment No. 12. Improve methods of food production, by making full use of technical and scientific progress: The reason for presuming that the production of food is the most relevant measure to analyze in this study is because new and innovative production methods constitute a relationship between food and intellectual property protection, as shown in Chapter 2. Modern forms of biotechnology and various forms of plant breeding can result in patent or plant variety protection, regulated by national law in accordance with TRIPS. As production of food contributes to fulfilling the right to be free from hunger, simply measuring higher yields does not necessarily contribute to the right to food. In order to appropriately serve the purpose of better realizing the right to food, it must be identified whether improved methods of production also benefit the poor, either directly or indirectly. Higher yields are important, but will not always contribute towards human rights fulfillment. An analysis of the relationship between food production and food distribution, as well as the relationship to cultural dimensions of traditional farming practices, and self-determination with regard to natural resources is conducted in Chapter 5.2 below.
80 Ibid, p. 35. 81 Among the promoters of patent and plant variety protection, the arguments relate not only to increased yields, but also to increased qualities of the varieties grown, improving their storage capacity, in other words improved methods of conservation. An example of such ’altered ripening’ is the first transgenic food plant, Flavr-savr tomato, which never exposed the promised qualities; see Martineau 2001. 82 See paragraph 25 of General Comment No. 12, addressing ‘all aspects of the food system’ but where conservation is not included.
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First, the relationship between the objective ‘improve methods of food production’ and the measure ‘making full use of technical and scientific progress’ will be identified, in order to analyze whether there is an obligation under the Covenant to conduct agricultural research for the purpose of contributing to a better realization of the right to food. The phrase ‘improve methods of food production’ must be seen in light of the right to be free from hunger. There can therefore be no doubt that the term ‘improved methods’ must primarily be understood as increased food production. This is also confirmed in General Comment No. 12, in which availability of food is emphasized as a ‘core content’ of the right to food.83 Availability refers to the total amount of food. Moreover, there can be no doubt that the measure ‘making full use of technical and scientific progress’ must primarily be understood in relation to food production.84 Developing or reforming of agricultural systems is also important for food production. When Article 11.2(a) not only reads ‘food production’ but ‘methods of food production’, it seems clear that it is the way food production is undertaken that shall be improved. Before analyzing the relationship between the two elements of Article 11.2(a), there is a need to understand what the phrase ‘making full use of knowledge’ implies. The wording does not indicate that the State parties to the Covenant must produce the knowledge themselves, only that they shall make full use of the knowledge. This is also in line with the understanding in the FAO Constitution paragraph 1.2(b) that knowledge of agricultural science shall be public and its spread shall be promoted. In order to assess the relationship between the objective of ‘improve methods of food production’, and the measure ‘full use of technical and scientific progress’, there will be an examination of the extent to which agricultural science is recognized in the Constitution of the Food and Agriculture Organization of the United Nations (FAO), as well as two relevant treaties relating to food and biological resources, and one UN study. Improved methods of food prooduction are considered to be of such importance that they are included in no less than three out of six paragraphs in the first article of the FAO Constitution.85 Article 1.2 (‘Functions of the Organization’) addresses research,86
83 General Comment No. 12, paragraph 8. 84 As will be shown below, when analyzing distribution of food in the context of transportbased distribution ‘full use of technical and scientific knowledge’ is relevant. 85 See FAO 1998a. As explained in greater detail by Mechlem 2004, p. 647, paragraph 1.2 was included at the 13th FAO Conference in 1965 (Resolution 12/65; see also the Report of the Thirteenth Session of the FAO Conference, 1965, p. 77), as a direct result of the wording of Article 11.2 of the Covenant. 86 “The Organization shall promote and, where appropriate, shall recommend national and international action with respect to (a) scientific, technological, social, and economic research relating to nutrition, food and agriculture.”
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
improved methods of agricultural production,87 and improvement of processing,88 respectively. The FAO Constitution, however, does not establish a stronger link between the ‘improved methods’ and the ‘full use of technical and scientific progress’ than what is already found in the Covenant.89 Also in treaties which are mostly relating to resource conservation, there is an explicit emphasis on measures involving technical and scientific knowledge. The Convention on Biological Diversity (CBD) includes several provisions relating to research. Among the provisions, the following phrases appear: ‘encourage research’, ‘access to and transfer of technology’, ‘technical and scientific cooperation’, ‘development and use of technologies’ and ‘effective participation in biotechnological research activities’.90 The importance of science, in the context of international cooperation, is explicitly acknowledged in the CBD. The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) is even more specific regarding the role of research in the use of resources, and contains provisions on ‘development of appropriate technologies’, ‘strengthening research’, ‘promoting plant breeding efforts’ and ‘reviewing breeding strategies’.91 These 87 “The Organization shall promote and, where appropriate, shall recommend national and international action with respect to […] (c) the conservation of natural resources and the adoption of improved methods of agricultural production.” 88 “The Organization shall promote and, where appropriate, shall recommend national and international action with respect to […] (d) the improvement of the processing, marketing, and distribution of food and agricultural products.” 89 There are two paragraphs which have references to ‘scientific’ and ‘science’, namely paragraph (a) and paragraph (b), on education and the ‘spread of public knowledge of nutritional and agricultural science’. 90 The most relevant articles in the CBD are: Article 12(b) (extracts): “Promote and encourage research which contributes to the conservation and sustainable use of biological diversity…” Article 16.1 (extracts): “…access to and transfer of technology [including biotechnology] among Contracting Parties are essential elements for the attainment of the objectives of this Convention…” Article 18.1 (extracts): “…promote international technical and scientific cooperation…” Article 18.4 (extracts): “…develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies…” Article 19.1 (extracts): “Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, to provide for the effective participation in biotechnological research activities…” 91 The most relevant articles in the ITPGRFA are: Article 5.1(e) (extracts): “…promote the development and transfer of appropriate technologies […] with a view to improving the sustainable use of plant genetic resources for food and agriculture.” Article 6.2(b) (extracts): “…strengthening research which enhances and conserves biological diversity…” Article 6.2(c) (extracts): “…promoting, as appropriate plant breeding efforts, which with the participation of farmers, particularly in developing countries, strengthen the capacity to develop new varieties…”
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provisions acknowledge the use of scientific and technical knowledge, also in the context of cooperation between industrialized and developing States, for the conservation and development of plant genetic resources for food and agriculture. While neither of the two treaties has equally strong and explicit wording as Article 11.2(a) of the Covenant (‘making full use of technical and scientific progress’), they both confirm that science is relevant to implement a substantial number of treaty provisions. Finally, in a study on science and human rights, commissioned by the Human Rights Commission, there is an analysis of how science relates to human rights. Under the title ‘The Politics of Food’, ten areas of concern relating to human rights and food technology are identified:92 1) developing appropriate norms of intellectual property; 2) developing countries’ access to information systems managed by FAO; 3) strengthening incentives to set up research institutions in developing countries; 4) establishing regulation of food technology entering developing countries; 5) developing local technological skills as part of international loan arrangements; 6) investing more in improving food technology in developing countries; 7) initiating land reform programs; 8) rehabilitating environmentally-degraded or mined-out land; 9) spreading relevant technological knowledge relating to food and agriculture; 10) considering knowledge, science and technology as a universal inheritance. Together, these areas identify several fields in which measures can be taken in order to realize the right to food Among them, five are related to making use of technological and scientific knowledge.93 None of the areas, however, are explicitly addressing the ‘full use of technical and scientific knowledge’. Based on these four interpretative materials, the emphasis on technology and science in Article 11.2(a) is generally confirmed. The explicit wording of Article 11.2(a) (‘making full use’), however, is not repeated in any of them. While this phrase cannot be interpreted in isolation from the rest of paragraph 2 of Article 11, as well as the rest of the Covenant, it seems that science (‘technical and scientific knowledge’) is given a particularly strong emphasis in the Covenant. Based on the finding that there is a strong relationship between the two elements of Article 11.2(a), the elements will now be addressed; more specifically whether there is
Article 6.2(g): “reviewing, and as appropriate adjusting breeding strategies and regulations variety release and seed distribution” 92 Weeramantry, 1990, pp. 174-177. 93 These are areas 3), 4), 5), 6), and 9), and all also have an international dimension. The other areas relate – to a greater or lesser extent – to other parts of Article 11, as well as Article 15 of the Covenant: 1) relates – under certain strict conditions (see Chapter 6.1 below) – to Article 15.1(c); 2) and 10) relate to international cooperation, as recognized in Article 11.2; 7) relates to developing or reforming agrarian systems of Article 11.2(a); 8) relates to development and utilization of natural resources of Article 11.2(a).
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
an obligation under the Covenant to conduct agricultural research for the purpose of contributing to a better realization of the right to food. The first measure in Article 11.2(a) includes the phrase ‘making use of ’. As was found above, based on a strict interpretation of this phrase in isolation, the States are not required to produce any ‘technical and scientific knowledge’ themselves. The terms ‘method’ and ‘knowledge’ are interpreted to imply that there already exists certain common ‘knowledge’ related to specific ‘methods’. The obligation on States must be to facilitate the best use of these methods for the realization of the right to food. There are three possible arguments in the Covenant itself for why States cannot only be using the knowledge, but must also take steps towards producing such knowledge. First, the objective of improving methods of food production of Article 11.2(a) addresses the State parties specifially. Second, Article 15.1(b) on the right of everyone to enjoy the benefits of scientific progress and its applications’, which will be analyzed in Chapter 6.2 below, implies that the State cannot remain passive, acting only as a receiver, in its scientific policy. Third, the general obligation of Article 2.1 asserts that States shall ‘take all appropriate means to the maximum of its available resources’. Based on these provisions, the mere use of knowledge cannot be considered as sufficient; the State parties must also produce such knowledge in order to meet their obligations under the Covenant. How far this obligation to conduct research (‘research obligation’) extends, however, is determined by the available resources of the State, as well as whether the State finds, after close consideration, that there are other measures that are more appropriate under the circumstances. The understanding of the State obligations can be clearer by applying the approach introduced in Chapter 4.2.1 on the three levels of human rights obligations. On the respect level, the obligation is to avoid interfering in people and communities’ own efforts to improve agricultural methods.94 This is also confirmed in the first of the two studies on the right to food by Asbjørn Eide: “The obligation to respect requires the State […] to abstain from doing anything that violates the integrity of the individual or infringes on her or his freedom, including the freedom to use the material resources available to that individual…”95 With regard to the protect level, the State has an obligation to protect everyone – not only the users of the products from science – from harm. The State must regulate research in order to prevent conduct of research that might threaten the public interests, in particular the most marginalized, or the integrity of human beings, as well as the environment.96 On the fulfill level, this is somewhat more complex. The State should – as a minimum – facilitate innovative activities. As noted by an author, “…the provision would appear to require, at minimum, the institution of national education and training programmes
94 Claude 2002, p. 44, refers to this principle as ‘an environment of freedom’. 95 Eide 1987, p. 14. In another part of his study, he states: “Economic and social rights can in many cases best be safeguarded through non-interference by the State, by respecting the freedom and use of the resources possessed by the individuals” (p. 24). 96 Note, in this context, the exception clause in Article 27.2 of TRIPS. See Chapter 8.2.3 for an analysis.
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and research to engender the effective utilization of existing expertise.”97 That the State should both facilitate or foster research, is a reasonable interpretation of the term ‘improve methods of production’. One can go a step further and ask whether the research should be undertaken by public institutions. As the research capacities and priorities differ between the State parties to the Covenant, it cannot be presumed that the Covenant implies that publicly-undertaken research shall always be preferred over various forms of privately-undertaken research.98 The obligation to ensure that the research is undertaken, and that this results in improvements of the human rights situation, however, is with the State. Moreover, in a situation where the research is primarily undertaken by private actors, the State is nevertheless under an obligation to enable everyone to enjoy the benefits of scientific progress and its applications. This is recognized in Article 15.1(b).99 The State cannot leave all research efforts to the private sector, as this will result in satisfaction of certain interests, most notably the interests of those with the ability to pay. The efforts of the State must, as a minimum, be directed to the type of research which will benefit those without the ability to pay for the products resulting from the privately-undertaken research. In order to give more clarity to the general, and somewhat confusing first part of Article 11.2(a), an assessment of the tools developed by the Committee is required. As General Comment No. 12 does not address in detail the phrase ‘improve methods of production by making full use of technical and scientific knowledge’, the Guidelines for State reporting will be analyzed,100 as this document lists relevant aspects to be considered under each of the rights recognized in the Covenant. The Guidelines are rather scarce, however, on the content of Article 11.2. Article 11, paragraph 2(e) reads (extracts): Please indicate in what ways measures taken to improve methods of production, conservation and distribution of food by making full use of scientific and technical knowledge have contributed towards, or have impeded the realization of the right to adequate food.
While the first part of this paragraph in the Guidelines repeats the wording of Article 11.2(a), the latter part of the paragraph introduces two terms, ‘contribute towards’ and ‘impede’. The Committee, in its Guidelines, seems to acknowledge that under certain 97 Craven 1995, p. 321. 98 In General Comment No. 3 (‘Nature of States Parties Obligations’), “…the Committee reaffirms that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems…” (UN doc E/1991/23, pp. 83-87, paragraph 8, reprinted in Eide et al. (eds.) 2001, Annex 2). 99 Claude 2002, p. 46, refers to this as the principle of ‘equality among beneficiaries’, and particularly refers to Article 3 of the Covenant on non-discrimination in the enjoyment of the rights. 100 Doc E/1991/23: ”Revised Guidelines Regarding the Form and Contents of Reports to be Submitted by State Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights”, reprinted in Eide, et al. (eds.) 2001, Annex 1.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
circumstances, ‘full use of scientific and technical knowledge’ can also impede realization of the right to adequate food.101 The Committee does not give any guidance with regard to identifying these circumstances. A reasonable understanding of the term ‘impede’ is that certain measures in one policy area affect negatively another policy area. While a more comprehensive analysis can only be undertaken after clarifying the objective of improved methods of distribution of food (see below), no definite conclusions will be made here, but this issue will be returned to in Chapters 5.2 and 12.3.1. Finally, it must be observed that the emphasis on technology alone has been reduced recently. As noted by an author, studying the relationship beteween technology and human rights: “Earlier approaches tended to view the problem [of hunger] as one of increasing the production and supply of food. […] However, it is being increasingly realized today that, while technology is a prime requirement for this task, technology cannot function alone.”102 In a World Bank initiated study, an author writes: “the power of technological solutions to solve poverty problems is extremely limited in the absence of economy-wide growth...”103 While this shift has an impact on the understanding of the provisions of the Covenant, this does not imply that the general obligation regarding scientific and technical knowledge is weakened. Improve methods of food distribution: With regard to food distribution, this objective must be considered to be wide-reaching.104 It can relate to social policies, including food subsidies and food ‘hand-outs’, but it can also involve distribution of food-producing resources, such as seeds, or the distribution of food over distances. In General Comment No. 12, the relevant term is accessibility, which is found to be a ‘core content’ of the right to food.105 Actual access to food is the core of this objective. It cannot be assumed that this objective relates as directly to the measure ‘making full use of technical and scientific progress’. With regard to food distribution over distances, technical and scientific knowledge is more relevant, as this requires a well-functioning infrastructure. Transport-based distribution is not particularly relevant for the purpose of this study. Neither will Article 11.2(b), on an equitable distribution of food, be subject to an in-depth analysis, as this paragraph relates specifically to trade. Therefore, when distribution is discussed below, it is with the economic and physical access to food within a specific area in mind (‘resource-based distribution’).
101 By interpreting the terms of the Covenant, there is nothing which seems to justify that the drafters believed that the measures applied can actually impede the realization of the right to food. Rather, the drafters of the Covenant must be presumed to believe that to make full use of technological and scientific knowledge would contribute to the realization of the right to food, and not serve as an impediment. 102 Weeramantry 1998, p. 196. 103 Binswanger 1994, p. 626. 104 Craven 1995, p. 319. 105 Also Sucharitkul 1994, pp. 381-382, uses the term ‘access’ when analyzing distribution of food.
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We will first analyze the content and scope of the objective ‘improved methods of food distribution’. Then, the measures in Article 11.2(a) which relate most directly to this objective will be discussed. The term ‘improved methods of food distribution’ can be understood to imply that there are methods of food distribution which are better than others. In line with what is stated elsewhere,106 it cannot be assumed that a market-based system for food distribution is necessarily superior to a State-based system.107 Therefore, an ‘improved system’ cannot be identified on the basis of whether market-based mechanims apply or not, but rather on the basis of how those who are in need of food are actually having access to such food at an affordable cost, both for the institutions involved, as well as individuals. A system of distribution which involves excessive costs for the institutions can be difficult to sustain over time. With regard to resource-based distribution, this can involve various ways to enable people to purchase food, affecting the economic accessibility, or securing the direct physical accessibility.108 The issue of private actors undertaking research and being granted exclusive rights over the commercial application of protected subject matter can affect both economic and physical accessibility. A market-based system will, therefore, have certain distributional effects. Those who are able to benefit from the introduction of new crops are usually those who initially have the best access to technical and financial resources. Others will experience that their traditional products will lose value relative to the new crops. The adaptation to the new circumstances will leave some in better conditions, but the situation for the most marginalized farmers risks further deterioration.109 Making full use of technical and scientific knowledge under the present ‘gene revolution’ (transgenic research resulting in transgenic plants) could have more severe distributional impact than the distributional impact from the ‘Green Revolution’.110 This could therefore be a situation where the realization of the right to food is impeded. While the efforts to increase yields taking place in 106 General Comment No. 3, paragraph 8: “…in terms of political and economic systems, the Covenant is neutral…” 107 As stated by various contributions in de Feyter and Gomez Isa (eds.) 2005, the State maintains its human rights obligations if it delegates some of the tasks relating to human rights implementation to private actors. 108 See General Comment No. 12, paragraph 13. 109 These effects are difficult to measure and will differ between types of seed and general social and ecological circumstances. Some analyses have been made, however. One of the most advanced agricultural research centers of the CGIAR group, the International Rice Research Institute (IRRI), estimated that the cash costs of farming using green revolution methods was eleven times higher than with traditional seeds (Fowler 1994, p. 243). See also Evenson and Rosengrant 2003. 110 There are numerous critical books on the effects of transgenic research, particularly on developing countries. This study has concentrated on those authors who work closely with the CGIAR; see Lipton 2001, particularly p. 842, Paarlberg 2001, particularly pp. 13-14, Shoemaker 2001, particularly p. 50, Hazel and Ramasamy (eds.) 1991 and Evenson 2003. Lipton 2001, p. 823, also finds that currently “…crop research is much less directed towards the food staples of poor people” (ibid).
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
the late 1950s and 1960s (‘Green Revolution’) were undertaken in a manner that ensured free access to the improved products, this is usually not the situation for the ‘gene revolution’. There is more concern about the distributional impact of the latter. The following observation from General Comment No. 12 seems relevant: “Economic accessibility applies to any acquisition pattern or entitlement through which people procure their food and is a measure of the extent to which it is satisfactory for the enjoyment of the right to adequate food.”111 It seems that identifying ‘improved methods for the distribution of food’ requires rather detailed knowledge both of how different systems operate, as well as their consequences. In the context of food distribution, it is also relevant to identify whether distribution of food is impeded, as indicated in the Guidelines on State reporting.112 No other documents referring to human rights in the context of science and technology apply the term ‘impede’. No other reference to this term in the context of making full use of technical or scientific knowledge has been found,113 but terms such as ‘potentially adverse consequences’114 and ‘impact’115 are used. In order to have a clearer understanding of food distribution, this study will analyze if there are any circumstances where measures taken to improve methods of food distribution by making full use of scientific and technical knowledge can impede the full realization of the right to adequate food. 111 UN doc E/2000/22, pp. 102-110, paragraph 13, reprinted in Eide et al. (eds.) 2001, Annex 2. 112 Paragraph 2(e) to Article 11 reads (extracts): ”Please indicate in what ways measures taken to improve methods of production, conservation and distribution of food by making full use of scientific and technical knowledge have contributed towards, or have impeded the realization of the right to adequate food.” 113 Reports to and resolutions from the Commission on Human Rights have been analyzed. The report from the Expert Group on Human Rights and Biotechnology, (Office of the High Commissioner for Human Rights 2002 - mandated through Human Rights Commission Resolution E/CN.4/RES/2001/71), lists human rights concerns in paragraph 22: right to privacy, right to health, respect for indigenous peoples’ rights, right to benefit from scientific progress, right to property and obligations of the state to share scientific knowledge. In reports to and resolutions from the Sub-Commission on the Promotion and Protection of Human Rights; (Sub-Commission 2000a, Sub-Commission 2001a and Sub-Commission 2001d) terms such as impact are used. No similar expressions are found in the work of UNESCO’s International Bioethics Committee (IBC), where genetic modification is analyzed with one reference to agriculture (UNESCO 2002, paragraph 20). Neither has anything been found in United Nations General Assembly Resolutions (see A/ RES/53/152 A/RES/58/200). Paragraph 11 of the 1993 Vienna Declaration on Human Rights, however, reads (extracts): “The World Conference on Human Rights notes that certain advances, notably in the biomedical and life sciences […] may have potentially adverse consequences for the integrity, dignity and human rights of the individual...” This is related to research on the human body, and not to research on plants. 114 UN 1993: A/CONF.157/23: Vienna Declaration and Programme of Action, paragraph 11. 115 The title of a report to the Sub-Commission (Sub-Commission 2001d) includes the term ‘impact’.
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The State has obligations to ensure an equitable resource-based distribution of food that contributes to the realization of the right to food. The ‘respect, protect, fulfill’ approach will be applied in order to identify the obligations on the State parties. On the respect level, the State shall not take any measures to prevent the access to food, or distribution of food. That is, the State shall not interfere in well-functioning distribution systems. On the protect level, the State must ensure that farmers are able to defend his or her interests in relation to the actors in the food industry. This could include measures relating to information, including the listed measures in Article 11.2(a) on ‘disseminating knowledge on the principles of nutrition’. Furthermore, there should be adequate regulations to secure a certain quality of seeds and food which are provided.116 On the fulfill level, there are several measures which are relevant for the objective of improving methods of food distribution. On the facilitate level, the State should encourage participatory plant breeding programs, and provide appropriate mechanisms to ensure that the food actually reaches the consumers. A related issue is whether there is an obligation on the State to ensure that the food producers are paid sufficiently for their produce. Such payment is crucial for the farmers to procure other food, send their children to school, be able to see the doctor, and keep an adequate housing for their families. In general, the specific circumstances, including whether there is abuse of market positions, or implying that prices to the producers are unjustifiably low, determine whether the State should take measures within the food distribution sector. If the State has available resources and capacities, such measures could be found to be appropriate, at least if the existing system is characterized by an abuse of market power. Other laws will regulate this. On the provide level, if the circumstances so require, the State should directly provide such food which is crucial for the enjoyment of the right to food, but also take into account how this affects future food self-sufficiency. Moreover, the measures adopted by the State could also relate to more effective distribution of food-producing resources, such as seeds. Hence, the content and scope of the objective of ‘improve methods of food distribution’ to achieve a situation where everyone enjoys the right to be free from hunger, will involve certain obligations on the State parties. How far these obligations extend cannot be answered in the abstract, and it must be acknowledged that one strategy is difficult to identify. The State measures should, however, be seen in light of whether they contribute positively to the totality of social human rights. An adequate system for food distribution can also be crucial for the enjoyment of other human rights. Particularly food-dependent developing States must be attentive to any system of appropriation which might impede on the distribution of food, hence serving as an impediment to the realization of the right to food. Price levels on input and output factors, as well as conditions for access to seed, are among the elements that must be assessed. This study will now pursue to answer the second question above, regarding which of the measures in Article 11.2(a) relate most directly to the objective of improved methods of food distribution. As noted with regard to the ‘Guidelines on State reporting’, the ‘full 116 An example of a situation relevant for the protect level is the potential introduction of socalled V-GURTs (Variety Genetic Use Restriction Technologies), see Chapter 2.3.5.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
use of technical and scientific knowledge’ is emphasized in paragraph 2e) on Article 11. Hence, there can be no doubt that this measure relates directly to the objective of food distribution. What is the most relevant measure for reaching the objective? There are two relevant categories of persons: those who grow food, or are involved in various forms of exchange or barter of food on the one hand; and those who are dependent upon purchasing food on the other. For the latter, the crucial issue is whether there are sufficient means to buy the food. In rare circumstances, it can also be that the food actually does not reach them, due to failure in the transport-based distribution. While price levels of food are crucial, it is even more striking that 70 per cent of those who suffer from hunger live in rural areas where food is produced, most of them being farmers themselves.117 Those who grow food will therefore be the focus for the analysis. It must be considered that the objective ‘improved methods of distribution of food’ is highly relevant in the context of the measure ‘developing or reforming agrarian systems’. Unjust distribution of land,118 uncertain or lacking legal entitlements to land,119 and lack of recognition of collective ownership,120 are some of the problems facing local farmers and communities in developing countries. Substantial reforms in these areas will contribute to improved methods of food production. The General Comment No. 12 does not make explicit reference to the measure of ‘developing or reforming agrarian systems’,121 but in the context of the ‘strategy to ensure food and nutrition security for all’ referred to in paragraphs 21 through 26, land reform will be included. Moreover, in the Guidelines on State reporting122 there is only one paragraph which explicitly refers to distribution of food, and then only in the context of ‘making full use of technical and scientific knowledge’ This indicates even clearer that distribution of new food-producing resources is a relevant measure. Paragraph 2g) on Article 11, however, addresses agrarian reform in order to promote food security at the household level, emphasizing adoption of legislation, enforcement of existing laws and monitoring. It is unfortunate that these two documents from the Committee do not assist in identifying more explicit relationships between agricultural reforms and food distribution. 117 See Pinstrup-Andersen and Cohen 2000a, p. 160. 118 The Catholic Church’s Pontifical Council for Justice and Peace issued in 1997 a study, “Toward a Better Distribution of Land: The Challenge of Agrarian Reform”, in which it condemned the unjust distribution of land as a ‘scandal’; see: <www.natcath.com/NCR_Online/ archives/040398/040398a.htm>. 119 Note in this context the launching in 2005 of the United Nation’s High Level Commission on the Legal Empowerment of the Poor; see and the critical approach at <www.landrightswatch.net/>. 120 See Lundström 2003 and Oskal 2001. 121 General Comment No. 12 emphasizes, in paragraph 26, issues such as the right to equal access among women and men to ‘inheritance and ownership’, and ‘maintaining registers on rights in land’. 122 Doc E/1991/23: ”Revised Guidelines Regarding the Form and Contents of Reports to be Submitted by State Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights”, reprinted in Eide, et al. (eds.) 2001, Annex 1.
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With regard to the second measure in Article 11.2(a), on disseminating knowledge on the principles of nutrition, this measure does not have a direct relationship per se to the objective of food distribution. Therefore, the third measure of Article 11.2(a) on ‘developing or reforming agrarian systems’ is closely related to improved methods for the distribution of food. For the purpose of this study, however, the relationships between the measure ‘making full use of scientific and technical knowledge’ and the objective ‘improved methods for the distribution of food’ are more relevant and more interesting to examine in detail. To sum up this analysis of Article 11.2, its wording is more specific and ambitious than Article 11.1, even if also Article 11.1 implies that “State Parties are required to take all appropriate steps to ensure realization of the right to food.”123 Article 11.2 is more specific. The list of objectives and measures in Article 11.2(a) is not exhaustive, and furthermore only indicate areas to which public policies should be directed, according to national priorities.124 On the other hand, the fact that such measures are included in an international treaty which has legally binding effect, implies that the realization of the right to food shall be assessed also on the basis of the extent to which the different measures have been implemented. It must be noted that the States actually strengthened the wording with regard to the right to food from the original FAO proposal. Whether and how the measures shall be undertaken depend to some extent on the specific problem of hunger and malnutriton facing the specific State. As the measures are recognized in the operative part of the Covenant, this points strongly towards the obligation of conduct, implying that the State authorities have the burden of proof to justify insufficient attention or priority regarding the measures. 5.2
Clarifying Relevant Relationships
First, there will be an analysis of the relationship between food production and distribution. A relationship will then be drawn between these two objectives and the underlying objective of utilization and conservation of natural resources. Finally, the relationship between the Covenant and the Universal Declaration will be analyzed. 5.2.1
The Relationship between Improved Methods of Food Production and Improved Methods of Food Distribution
This section will examine whether improved food production might adversely affect improved food distribution. It has been demonstrated that both availability and accessibility constitute the core content of the right to food.125 Increased food production does 123 Alston 1984, p. 34. 124 Note, however, that State parties shall report on the implementation of the measures in Article 11.2(a), in accordance with the Guidelines for State reporting (See Eide et al. (eds.) 2001, Annex 1). 125 General Comment No. 3, paragraphs 7 through 13. Furthermore, cultural acceptability (paragraph 11), which can be considered as a third ‘core content’ is relevant in relation to the intro-
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
not contribute to better realization of the right to food unless there is also an improved distribution of this extra food. Increased food production, at least in most of the regions of the world, is crucial.126 From a human rights perspective, however, it is important that specific measures are taken in order to protect the most vulnerable when new technologies are introduced. It is also important that breeding efforts are participatory, in order to allow the needs of the farmers themselves to be the central motivation for the introduction of new technology. While participation is considered to be an obligation of process,127 such participatory breeding cannot be directly interpreted as constituting an obligation, based on the wording of the relevant provisions in the Covenant. Moreover, increased production per se is not sufficient. As noted in the first comprehensive UN study on the right to food, the crucial test is whether the invidual has an adequate ‘command’ over food.128 This approach is close to the term ‘entitlement’ introduced by Amartya Sen, emphasizing “…the ability of people to command food through the legal means available in society, including the use of production possibilities, trade opportunities, entitlements vis-á-vis the state, and other methods of acquiring food.”129 Sen underlines that the crucial issue is not whether there is enough food, but whether people are having enough to eat.130 Sen also introduced the concept of ‘capabilities’ which is derived from entitlements: “Larger entitlements contribute to wider capabilities, but the relationship is not the same for different persons.”131 General Comment No. 12 does not include command or entitlement issues in a systematic manner, nor does it address plant breeding, high-yielding varieties or conse-
126
127 128 129 130 131
duction of new technology, more specifically transgenic biotechnology. The four main crops into which transgenic genes have been incorporated are soybeans, maize, cotton and canola. As cultural acceptability is strongly related to transgenic crops, which is not the focus of this book, this will not be elaborated on in detail. Bruinsma (ed.) 2003, in a FAO Report, addressing ‘total agriculture’, finds (p. 59) that food production is estimated to be increased by 1.9 per cent annually in developing countries until 2030, while the population increase will be 1.3 per cent, resulting in an estimated decrease in the number of undernourished persons from 776 million in 1998/99 to 440 million in 2030 (p. 41). These are aggregated numbers, and do not reveal differences on neither country nor household level. Craven 1995, pp. 317-318, lists the following ways food production can be increased and improved: improving access to agricultural inputs, increasing arable land, providing incentives, undertaking soil conservation, and increasing agricultural research and the transfer of technology. Some of these relate more to agricultural development and reform, and some relate to international measures. It therefore seems reasonable to argue that research constitutes a crucial element in improvement of the methods of production. See also Boerma 1976, pp. 87-97. See Raworth 2001, p. 120. See also lists non-discrimination, adequate progress and effective remedy as ‘obligations of process’. Eide 1987, p. 27. Sen 1981, p. 45. Ibid, p. 1. Dréze and Sen 1989, p. 13, note 21.
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quences of intellectual property protection on plant genetic resources.132 Such issues are more explicit in the Voluntary Guidelines.133 Regarding economic accessibility, General Comment No. 12 merely addresses “acquisition patterns or entitlements through which people procure their food…”134 Studies of food in local and traditional communities emphasize that involvement by commercial actors does not necessarily contribute to the realization of the right to food.135 Any interference which might affect traditional rights over natural resources, leading to privatization, is a particular concern. Concerning the introduction of new technologies, members of local farming communities have highly different attitudes and responses, and different factors affect the responses in different contexts. It is beyond the scope of this study to identify in detail all consequences and responses involved in the introduction of new technology, including modern forms of biotechnology, in agriculture. Research efforts undertaken by commercial actors, who charge a high price when the products from the research are introduced on the market, can be potentially problematic from a human rights perspective, in line with economic accessibility. Effective patent and plant variety protection could lead to increased private agricultural research efforts – on certain crops.136 It must be presumed that farmers purchasing such new biotechnology are acting rationally, provided that they have adequate information. Public efforts to ensure such information are crucial. Some authors observe that the private sector is more efficient than the public sector in actually delivering the products resulting from the research.137 All farmers need to exchange their seeds, and the frequency of this seed exchange impacts on the yield, as the seeds gradually loose their qualities. The actual costs of such provision should not be ignored, however. In a human rights context, improved methods for both production and conservation has limited value, unless this also affects positively the actual provision of food to the most food insecure, who have limited financial resources to purchase food. 132 See paragraphs 25 and 26 of General Comment No. 12, on ‘critical issues in regard to all aspects of the food system, including the production, processing, distribution, marketing and consumption of safe food’ and ‘prevent discrimination in access to food or resources for food, including appropriate technology’. 133 See Voluntary Guidelines 8.4 (agricultural research and development), 8.5 (access to research results enhancing food security, within the framework of intellectual property rights), 8.12 (ensure the conservation and sustainable use of genetic resources for food and agriculture) and 8.14 (promote more appropriate technologies to enable more efficient food production), as well as 2.6 (appropriate and affordable technologies) and 3.3 (production of safe food and access to resources). 134 General Comment No. 12, paragraph 13; see also paragraph 18 on non-discrimination. 135 See Eide 1987 and Lundström 2003, the latter addressing indigenous peoples specifically. 136 Several authors caution against assuming any direct relationship between stronger intellectual property and larger private research investments, see Morris and Ekasingh 2001, pp. 206-207 (‘the impacts have actually been rather modest’), Shoemaker 2001, p. 37 (‘whether the current intellectual property regime is stimulating or hampering research is unclear’); see also Economist 2004, p. 73. Conversely, Maskus 2001, p. 135 observes “…a strong and positive impact of patent rights on […] R&D spending…” 137 Dalrymple and Srivastava 1994, p. 204, and Louwars et al. 2005.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
General Comment No. 12 addresses the role of the private sector in paragraph 20138 and 27,139 but neither includes references to privately undertaken research. Moreover, when General Comment No. 12 addresses the private business sector, it is done in somewhat vague terms. While the above analysis has been on the potential harms to the most marginalized resulting from the introduction of new technology, this should not be interpreted to imply any rejection of technology as such. As the focus in this book is on the appropriate balance between human rights and intellectual property rights protection, the potential threats to realization of the right to food must be explicitly identified. Therefore, potential positive effects on production of food by making full use of technical and scientific knowledge must be balanced against the potential negative impact on food distribution or access to food. This also seems to be underlying the term ‘impede’ as applied in the Guidelines. The full use of technical and scientific knowledge could have certain distributional impacts (production capacity), which will be different among small-holders and holders of larger farms, as well as between poor and rich.140 The crucial question that the State should ask itself is how to facilitate the production process so that the production of food is shared more equally between holders of large farms and small-holders. Merely distributing food when it has been produced is not a wise strategy. The wording of Article 11.2(a) of the Covenant implies that measures relating to technology and agricultural science cannot be ignored. Article 11.2(a) sets out obligations of conduct, and the provisions of the Covenant give directions for specific actions by the State authorities when faced with a situation in which developments in science are conducted primarily by the private sector. To identify an appropriate response to this situation is one of the main tasks in this study, and is not done sufficiently in General Comment No. 12. This analysis on the distribution of food has been undertaken without referring specifically to the policies related to patent and plant variety protection. These relationships will be analyzed in more detail in Part IV of this study. Patent and plant breeders’ rights 138 Paragraph 20 reads (extracts): “The private business sector – national and transnational – should pursue its activities within the framework of a code of conduct conducive to respect of the right to adequate food...” 139 Paragraph 27 reads: “As part of their obligations to protect people’s resource base for food, State parties should take appropriate steps to ensure that activities of the private business sector and civil society are in conformity with the right to food.” 140 Two books analyzing the impact of the introduction of new seeds, in the aftermath of the ‘Green Revolution’, conclude positively on the gains in productivity, but express somewhat stronger reservations on the gains on distribution. Evenson and Gollin 2003, p. 496, conclude that crop genetic improvement gains “…were not realized evenly by any means. Nor were they sufficient to bring about ‘convergence’ in per capita incomes between developing and developed countries…” Lipton 1989, p. 401, writes that modern varieties (MVs) “…especially if used first by richer, less risk-averse farmers, with better access to information and inputs – tends, when introduced into an entrenched power structure, to be used so as to benefit the powerful. Even labour-saving and ‘consumption-cheapening’ MVs may not, in highly stratified societies, bring gains mainly to poor people.”
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enforcement, however, represents a particular challenge in relation to access and distribution, particularly if the right holder is a private actor.141 5.2.2
The Relationship between Technology and the Environment
The analysis above has sought to clarify the obligations arising from the objectives of improved methods of production and distribution of food, both generally and in a manner which is particularly relevant for the purpose of this book. Article 11.2(a) also has an underlying objective: ‘the most efficient development and utilization of natural resources’. It is evident that food is a natural resource. This section will analyze the relationship between increased use of new technology in food production (improved methods of food production) and the underlying objective of ‘efficient development and utilization of natural resources’. This objective is considered to be more relevant for analyzing in the context of the environment than the two other objectives of conservation and distribution. There are two questions which must be answered separately. First, how shall the phrase ‘efficient development and utilization of natural resources’ be understood? Particularly the term ‘utilize’ could be understood to emphasize using at the expense of conserving. Second, what are the possible relationships between ‘improved methods of food production by making full use of technical and scientific knowledge’, on the one hand, and ‘efficient development and utilization of natural resources’, on the other? To answer the first question, the phrase at the very end of Article 11.2(a) relates to the principle of sustainability. This notion did not exist in relationship to the environment when the Covenant was drafted in the 1950s and 1960s. Therefore, a proper understanding of the phrase ‘efficient development and utilization of natural resources’ must take into account the current understanding of the balance between science, technology and environment, and not the understanding prevailing in the 1960s.142 Utilize means ‘make practical and effective use of ’.143 The term ‘effective use’ is particularly interesting. Could an ‘effective use’ come in conflict with a ‘sustainable use’, in which resources must be conserved and maintained also for the use of future generations? It is necessary to understand the phrase ‘efficient development and utilization of 141 On public actors, particularly national agricultural research centers (NARS) in several Latin American States, which are seeking protection of their biotechnology research; see Salazar et.al. 2000. In their book Agricultural Research Policy in an Era of Privatization, (Byerlee and Echeverría (eds.) 2002) states on p. 14 that such commercialization “…runs against the redirecting of public sector priorities to focus on essential public goods.” 142 This is in line with the principles of intertemporal law (see Chapter 3.1.2). Treaty interpretation shall be done in light of the conditions prevailing at the time of the adoption of the treaty. Application of the provisions of the treaty can take into account relevant rules of international law that have emerged subsequent to the adoption of the treaty. (Third Report on the Law of Treaties, Yearbook of the International Law Commission 1964, Vol. II, p. 8). This is in accordance with the ‘good faith’ principle, acknowledged in Article 31.1 of the Vienna Convention on the Law of Treaties, which is also embracing the principle of effectiveness; see US – Shrimps (WT/DS58/AB/R), paragraph 131. 143 New Oxford Dictionary of English 2001.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
natural resources’ in the context of the right of everyone to be free from hunger. Any interpretation must be consistent with this right. Therefore, the ‘efficient utilization’ must be interpreted as using the natural resource base only to the extent that this does not come on the expense of the quality of the natural resource base for coming generations, enabling these generations also to enjoy the freedom to be free from hunger, as a core element of the right to food. Therefore, the phrase ‘utilization and development’ must be given a wide scope, to include conservation of food-producing resources. This understanding is confirmed by General Comment No. 12 and the Guidelines for State reporting.144 First, General Comment No. 12 includes sustainability of food both as a title in the section elaborating the core content of the right to food, as well as an element in the accessibility of food,145 and identifies sustainability again in the context of a national food strategy.146 Second, the Guidelines for State reporting states in paragraph 2(e) to Article 11: Please indicate in what ways measures taken to improve methods of production, conservation and distribution of food by making full use of scientific and technical knowledge have contributed towards, or have impeded the realization of the right to adequate food. Please describe the impact of these measures in terms of ecological sustainability and the protection and conservation of food producing resources (emphasis added).
These two documents from the Committee confirm changes which have taken place from the 1950s and 1960s until present. First, environmental concern plays a greater role in all aspects of public life. Of particular relevance for the purposes of this study is the erosion of plant biodiversity. 147 Particularly in the Guidelines, there is an acknowledgment that the measures “to improve methods of production, conservation and distribution of food by making full use of scientific and technical knowledge” might impact on “…protection and conservation of food producing resources.” Is this emphasis on ‘impact on protection and conservation of food’ of the Guidelines consistent with the wording of the Covenant, or does it imply an expansive interpretation of the terms of Article 11.2(a)? Article 11.2(a) does not directly use the term ‘impact’, but the phrase ‘in such a way as to achieve’ has similar connotations. The phrase ‘describe the impact’ applied in the Guidelines must be interpreted as to imply that the impact can be quantified and measured. On the other hand, Article 11.2(a) of the Covenant, as well as the relevant para-
144 Annex 1 in Eide et al. (eds.) 2001. 145 General Comment No. 12, paragraph 8. Sustainability is more related to food availability (amount of food) than food accessibility (access to physical food or means for procurement of food). 146 Ibid, paragraph 25. 147 FAO 1998a, p. 33, identifies replacement of traditional varieties with modern, high yielding and uniform varieties as the single most important factor for this erosion. See also FAO 1996a and IPGRI 2002, p. 4.
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graphs of the General Comment No. 12 emphasize the considerations that should guide the taking of measures.148 The requirement of the Guidelines that the State parties should ‘describe the impact’ goes beyond what is implied in the terms of Article 11.2(a). A more appropriate requirement would be that the State parties should describe how they have sought to protect and conserve food-producing resources when taking the appropriate measures in the field of improved methods for, inter alia, the production of food. This finding that the Committee applied an expansive clarification of what is implied by the latter part of Article 11.2(a) does not imply that there is no possible relationship between measures in the field of technical and scientific knowledge, on the one hand, and conservation of food, on the other. To identify this relationship will also be crucial for an answer to the second question identified above, on the relationship between ‘improved methods of food production by making full use of technical and scientific knowledge’, and ‘efficient development and utilization of natural resources’ (understood as also including conservation).149 Various relevant studies will be referred to in order to identify this relationship. New biotechnology might result in higher yields, increased resistance, higher nutritional contents, potentially decreased use of pesticides, and better storage and transportation capacity.150 Furthermore, this could result in requiring a smaller area for cultivation. Such food qualities are important per se, and will also potentially be measures that will contribute to the realization of the right to food. New technologies should be adapted to local needs and conditions. Increased research is therefore crucial. The balance between introducing biotechnology, ensuring sustainability and preserving natural resources and biodiversity might be complex. FAO points to some concerns: “Biotechnology may reduce genetic diversity indirectly by displacing landraces and their inherent diversity as farmers adopt genetically uniform varieties of plants and other organisms. At the same time it increases the potential to preserve and sustainably use diversity.”151 From a human rights perspective, the crucial issue is not on conservation of foodproducing resources seen in isolation, but rather how the resource-poor farmers are participating in the process of developing new plants and plant varieties, based on re148 General Comment No. 12, paragraph 25, reads in its final sentence (extracts): “Care should be taken to ensure the most sustainable management and use of natural and other resources...” 149 The term ‘efficient utlization’ must be understood in the context of the purpose of the whole Article 11, implying that development and utilization of natural resources must contribute towards the realization of the right to be free from hunger, and the right to food. Therefore, measures for the maintenance of the genetic diversity, in other words conservation, must also be considered to be implicitly recognized by the Covenant, especially as the eroding genetic diversity could undermine the possibility for predictable production, conservation and distribution of food in the future. 150 Spillane 1999, p. 9-18. He notes, however, on p. 9: “Plant biotechnology research is most powerful when it is integrated with conventional breeding or crop improvement approaches.” 151 FAO 1999c (Committee on Agriculture), paragraph 41; see also McManis 1998, pp. 268-269 and pp. 276-277.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
spect for ecological constraints.152 It is expected that if such participation takes place, this would be an important prerequisite for a utilization of food producing resources which does not deplete these resources. IFAD states in a study that “unless the poor have the power to participate in deciding which technology to use, they are unlikely to benefit from it.”153 This might not necessarily result in increased production. In the same chapter, the study states that “[w]here farmers are consulted about their priorities, they often select priorities other than yield.”154 In two books specifically devoted to environmental human rights, only one chapter is specifically devoted to natural resources in the context of the right to food.155 Moreover, in the report on human rights and environment to the Sub-Commission, a section on food was included,156 but the relevant paragraph on resource conservation in the annexed ‘Draft principles on human rights and the environment’ is very general.157 Finally, the relevant paragraphs in General Comment No. 12, applying the term ‘technology’ do not address such relationships.158 Hence, General Comment No. 12 does 152 Eide 1987, p. 35, arguing that one should not “…advocate a status quo concerning traditional production systems, but […] when seeking to promote more effective methods [one] must take traditional knowledge and experience as the starting point, and translate it into approaches where modern science and traditionally adapted principles are combined in order to maximize the prospects for adequate food consumption, nutritionally balanced, and in respect of ecological constraints.” 153 IFAD 2001, p. 127, introducing a Chapter on ‘technology, natural resources and rural poverty reduction’. 154 Ibid, p. 136. Predictability and local adaptability are prioritized. On the same page, concern is expressed about “…the new development agenda, which stresses priorities other than yield or income, such as risk reduction, gender equity [sic!] and concern for the environment [sic!]”. This is a surprising statement, and does not confirm States obligations under neither human rights nor environmental treaties. 155 Hancock 2003, Chapter 6, concluding on p. 155 that “…recognition of the right to ownership of natural resources …[are] required for the realization of […] the freedom from hunger.” The references to the environmental dimension regarding the right to food in particularly absent in several chapters in Boyle and Anderson 1996; see Churchill 1996, p. 102, addressing in the context of Article 11.1 of the Covenant only pollution of environment and water, as well as noise pollution. 156 Ksentini 1994, paragraphs 188-191, the former linking food ‘to an environment free from degradation’. 157 Ibid, Annex I, paragraph 6: “All persons have the right to protection and preservation of the air, soil, water, sea-ice, flora and fauna, and the essential processes and areas necessary to maintain biological diversity and ecosystems.” 158 Paragraph 25 states: “The strategy should address critical issues and measures in regard to all aspects of the food system, including the production, processing, distribution, marketing and consumption of safe food, as well as parallel measures in the fields of health, education, employment and social security. Care should be taken to ensure the most sustainable management and use of natural and other resources for food at the national, regional, local and household levels.” Paragraph 26 states that the national strategy “…should pay particular attention to prevent discrimination in access to food and resources for food […] particularly for women, in-
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not identify situations in which full use of scientific and technical knowledge could both contribute to and impede the realization of the right to food. This is a weakness of General Comment No. 12. We see that the general studies do say that a relationship exists between biotechnology and genetic diversity.159 Such relationships are not defined explictly in human rights studies. These studies, however, confirm principles that should be observed when undertaking measures in the field of science and technology, based on an understanding that modern varieties, while tending to dominate over traditional varieties, must be adapted to the needs of traditional farming communities.160 Therefore, Article 11.2(a) must be read to imply that measures must be taken to make full use of technical and scientific knowledge only to the extent that such measures do not adversely affect the conservation of food producing resources. This conclusion is also confirmed by the two other provisions of the Covenant applying the term ‘natural resources’, Articles 1.2 and 25.161 Both of these provisions represent strong safeguards against deprivation of peoples’162 own natural resources. Improved methods of production, by making full use of technical and scientific knowledge, shall be assessed by taking into account two concerns. First, whether such methods have contributed to or impeded the realization of the right to food. Second, whether such methods have contributed to the development and utilization of natural resources in a way that preserves both the natural means of subsistence, as well as the ecological sustainability – crucial for the future realization of the right to food. New circumstances, with new technological opportunities and challenges, have developed in the field of science and technology, which are of relevance for the right to food. These new circumstances warrant increased emphasis on what the Covenant actually says, as has been done above. The Committee has not adequately responded to these new challenges. In the Guidelines, the Committee includes potentials and concerns relating to the introduction of new biotechnologies in the field of food and agriculture, but does actually extend the obligations beyond what is justified by the wording. The general comments are too general to be of much help.
159 160 161 162
cluding […] ownership of […] natural resources and appropriate technology…” (emphasis added). See particularly FAO 1999c. See particularly Eide 1987, p. 35. Article 1.2 reads (extracts): “In no case may a people be deprived of its own means of subsistence.” Article 25 reads: “Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.” As Articles 1 and 25 address the right of ‘peoples’, they are primarily be understood as a basis upon which the substantive individual rights of Part III of the Covenant must be interpreted and applied.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
5.2.3
The Relationship between the Provisions of the Covenant and the Universal Declaration of Human Rights as well as Other Instruments
This section will analyze whether the right to food constitutes international customary law. After an analysis of the requirements for being termed international customary law, the content and legal status of the Universal Declaration of Human Rights will be examined. The requirements for being classified as international customary law are rather strict. First, there must be a consistent State practice over time. Second, there must be a legal declaration (opinio juris) that the norm consitutes customary law. The concept of opinio juris is complex, while State practice is more evident.163 The basic principle is ‘opinio juris sive necessitatis’ (‘of the opinion that it is a necessary law’), but this principle does not state what is required for an opinio juris to be established. Also the issue of State practice poses problems. The duration of a particular State practice, the actual content of such practice and the number of States participating in the particular practice are relevant factors.164 Moreover, the existence of a ‘persistent objector’ must be considered as a relevant factor in determining whether a given rule constitutes custom. An interesting example, of some relevance for this book, are the discussions in the FAO on the Voluntary Guidelines on the Right to Food.165 The discussions have revealed the reluctance regarding the right to food among some industrialized States, most of which are parties to the International Covenant on Economic, Social and Cultural Rights, but also among States which are not parties to the Covenant. Whether the objections these States put forward were sufficiently strong to constitute ‘persistent objector’ is difficult to answer in general. The process led to a convergence of opinions, and in the final negotiations, the ‘persistent objectors’ were not as persistent as in the beginning of the process. Approximately 40 States are not parties to the Covenant. Some States which have not ratified the Covenant have actually signed it. The Vienna Convention on the Law of Treaties, Articles 11 through 18, regulates the situation under which State parties have signed, but not ratified the treaty. In short, a non-ratifying State party is not bound by the treaty. According to Article 18, a State which has signed, but not ratified a treaty, is “…obliged to refrain from acts which would defeat the object and purpose of a treaty […] until it shall have made the intention clear not to become a party to the treaty.” What are bases for an analysis of the customary law nature of the right to food? One basis is to state that the Universal Declaration of Human rights, and hence every human
163 Byers 2002, p. 83, finds that opinio juris is “…a subjective feeling of legal obligations regarding the practice in question. Since subjective feelings are difficult to identify, the analysis of customary rules have almost always focused on state practice” (footnotes, referring, inter alia, to ICJ judgments, deleted). 164 Ibid, p. 84. 165 The Voluntary Guidelines, adopted in 2004, were referred to in the last sentence of Objective 7.4(e) of the 1996 World Food Summit, but the negotiating process was formally mandated by the 2002 World Food Summit, five years later, in paragraph 10 of the Final Declaration.
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right it contains is customary law. The right to adequte food is regocnized in Article 25.1 of the Universal Declaration of Human Rights, which reads (extracts): Everyone has the right to an adequate standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services and the right to security…
This article recognizes several rights which have been confirmed in different articles of the International Covenant on Economic, Social and Cultural Rights. Social security and health are recognized in the Covenant in Articles 9 and 12, respectively. Food, housing and clothing are recognized in Article 11.1. The main difference in structure between Article 25.1 of the Universal Declaration and Article 11.1 of the Covenant is that the phrase ‘adequate for the health and well-being’ is inserted after ‘adequate standard of living’ in the Universal Declaration. Moreover, more rights are listed in Article 25.1 of the Universal Declaration than in Article 11.1 of the Covenant, as seen above.166 We shall now analyze the relationship between these three elements of Article 25 (‘adequate standard of living’; ‘adequate for the health and well-being’; as well as the specific rights falling under the scope of this provision). There are two distinct understandings of the relationship between the three elements of the initial part of Article 25 of the Universal Declaration. First, adequate health and well-being are more directly related to an adequate standard of living, while food, clothing, housing and medical care are merely examples of areas in which the right to an adequate standard of living is to be exercised. Second, the right to food, clothing, housing and medical care are substantive human rights which are of no less priority than the right to an adequate standard of living; and adequate health and well-being are integral parts of an adequate standard of living. In line with the analysis of Article 11.1 in Chapter 5.1.3 above, the listed rights must be understood to be substantive human rights. Moreover, ‘adequate health and well-being’ must be understood as both identifying elements of an adequate standard of living, and as substantive rights. This is most evident if ‘adequate health’ is used as an example. If ‘adequate health’ is only understood as an element, and not as a substantive right, the Universal Declaration would only recognize ‘medical care’ as a substantive right. This implis that health-related rights would have a limited scope in the Universal Declaration. The right to adequate health, however, includes more than the right to adequate medical care. A good faith interpretation says that the right to adequate health can, at the same time, be an element in an adequate standard of living, and a substantive right. This implies that the right to adequate food must not only be understood as a component of an adequate standard of living, but must also be understood as a component of – and in the context of – ‘adequate for the health and well-being’. This does not reduce the legal content of the right to food per se, but it confirms that the right to adequate food has a relationship to the other social human rights. 166 On what became Article 25 of the Universal Declaration, see especially Eide 1992; and Eide and Eide 1999, p. 526. There was not much debate on the right to food.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
Furthermore, Article 25 of the Universal Declaration is less demanding than Article 11 of the Covenant, as the latter includes the right to the continuous improvement of living conditions. Similar terms are not found in the Universal Declaration. Article 25 must be read in light of Article 22, which reads: Everyone, as a member of society, has the right to social security and is entitled to realisation, through national efforts and international co-operation and in accordance with the organisation and resources of each State, of economic, social and cultural rights indispensable for his dignity and free development of his personality.
The various economic, social and cultural rights of the Universal Declaration all relate to Article 22, which is considered a ‘general clause’ for the rights in Articles 23 through 28. The obligations listed in Article 22 have a general wording, identifying “national efforts and international co-operation”. Article 22 of the Universal Declaration is similar to Article 2.1 of the Covenant, but has less explicit wording. One example is the phrase “in accordance with the organisation and resources of each State.” This wording leaves much discretion with the individual States, and is weaker than Article 2.1 of the Covenant. Hence, there are two arguments asserting that the provisions of the Universal Declaration give rise to less specific obligations than the Covenant. First, the Universal Declaration is non-binding, unlike the Covenant. Second, the wording of the Universal Declaration is less explicit, giving rise to wider margins of discretion. This does not imply that those States which have not ratified the Covenant are allowed to disregard the right to food or the corresponding obligations. First, the Convention of the Rights of the Child, with 191 ratifications,167 recognizes the right to food.168 Second, non-binding declarations, adopted unanimously, have confirmed the right to food as recognized in Article 11 of the Covenant.169 Third, annual resolutions of the General Assembly, which have been adopted with almost all non-parties to the Covenant, have confirmed explicitly the non-binding General Comment No. 12, which is relevant only for the State parties to the Covenant, as seen in Chapter 3.2.2. Adoption of declarations and resolutions which confirm provisions in international binding treaties, can represent examples of State practice.170 Conversely, relatively few
167 Only Somalia and the USA have not ratified the Convention on the Rights of the Child. 168 Articles 24.2(c) and 27.3, the former in the context of the right to health. The latter provision, by using the terms ‘assist’ and ‘in case of need’ is weaker than Article 11 of the Covenant. 169 See the 1996 Rome Declaration on World Food Security, which in the initial paragraph confirms both paragraphs 1 and 2 of Article 11 of the Covenant; paragraph 4 of the 2002 Declaration of the World Food Summit: Five Years Later, confirming the right to have access to safe and nutritious food; and the 2004 Voluntary Guidelines, which in paragraph 9 of Section 1 affirms that it is addressed to all States. 170 See Meron 1998, pp. 263, finding that statements by States have been weighed “…both as evidence of practice and as articulation of opinio juris…” in the context of international humanitarian law.
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States have recognized the right to food in national constitutions and legislations.171 It is more difficult to find opinio juris declaring that the right to food represents international customary law. International courts apply Article 11 of the Covenant,172 and have not analyzed in detail whether the right to food represents international customary law.173 The States that are part of the International Covenant on Economic, Social and Cultural Rights have stronger obligations with regard to the right to food, compared to those States which are not parties to the Covenant. It has been observed that for those States which have ratified the Covenant, Article 11 is “[n]on-derogable in any circumstance.”174 Non-ratifying States are not subject to similar obligations. The question of the customary law status of the Universal Declaration is complex. Certain State practice can be affirmative, but there is a lack of a specific opinio juris from a recognized international legal body. Whether the Universal Declaration is declaratory of international customary law is subject to differing opinions among scholars, in particular when applied in the context of economic, social and cultural rights. Recognized human rights lawyers have been unable to conclude in the affirmative.175 Some claim that the right to food fulfills the requirements for being categorized as customary law,176 and that the Universal Declaration itself represents international customary law.177 Moreover, the fact that various UN organizations which have acknowledged 171 See FAO 1998b, pp. 21-22, finding 20 States which recognize the right to food in their constitutions. 172 See International Court of Justice in Advisory Opinion 9 July 2004, on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, paragraphs 130, 133 and 134. 173 An example where no reference is made to Article 11 of the ICESCR, but where the right to food (understood in the context of eliminate malnutrition) is recognized as relating to the right to life, is General Comment No. 6 from the Human Rights Committee (UN Doc A/37/40, pp. 37-40), in which paragraph 5 reads (extracts): “the Committee considers that it would be desirable for State parties to take all possible measures to reduce infant mortality […] especially in adopting measures to eliminate malnutrition and epidemics.” This recognition in the context of the right to life, which is part of customary law, does not imply that the right to food is understood as customary law. The wording of paragraph 5 is relatively weak. 174 Sieghart 1983, p. 194. 175 Alston and Simma 1992, p. 106, after examining the role of custom, concludes: “…the jurisprudence of the International Court [of Justice] cannot be read as lending support to the customary-law-of-human rights school. The same is true of the jurisprudence generated by decisions of high-ranking domestic courts outside the U.S. in human rights matters.” 176 Kearns 1998, p. 232, finds that the Universal Declaration of Human Rights is “…part of customary international law.” FAO (2003a, Chapter 1.2.2) is more nuanced: “It may be argued that the right to adequate food, at least in its basic form of right to be free from hunger, is part of customary international law. Indeed, in that basic form, the right to food is directly linked to the right to life, which is one of the most widely recognized human rights. Moreover, international humanitarian law provisions that are relevant for the right to freedom from hunger, such as the prohibition of starvation of civilians as a method of warfare, are widely recognized as part of international customary law”. 177 Press Release GA/SM/60 of 14 September 1998, quotes the UN General Assembly President: “The Universal Declaration has “won recognition as customary law that is considered
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
the right to food, should be noted.178 On the other hand, a finding that the American Declaration of the Rights and Duties of Man constitutes international customary law, 179 cannot be taken to imply that the Universal Declaration of Human Rights also constitute international customary law, as the legal status of the former is clarified in Article 1 of the Statutes of the Inter-American Commission on Human Rights.180 Based on this, it is difficult to confirm in the affirmative that the Universal Declaration and hence the right to food constitutes international customary law. Article 25, however, must be understood in light of recent confirmations of Article 11 of the Covenant. Moreover, the lack of ratifications does not imply that the 40 non-ratifying States are not required to respect, protect and fulfill the right to food; and thus contribute to its realization. The States’ obligations, with regard to the standard of living of their own citizens, is not withered away because they have not ratified an international treaty. Another basis for finding that the right to food might constitute customary law, is to identify certain specific elements of the right to food. These elements might relate to the ‘core content’ of the rights, as identified in Chapter 4.2.1. Alternatively, it is possible to identify elements of State misconduct.181 Grave misconduct, resulting in death of people, must be considered to be a breach of international law obligations, even if a State is not a party to a specific human rights treaty. 5.3
‘International Cooperation’
Two elements of Article 11 are particularly relevant regarding international cooperation. 1. 2.
The States Parties […] recognizing to this effect the essential importance of international co-operation based on free consent. […] The States Parties […] shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: […]”
There is only one other of the specific rights recognized in Part III of the Covenant which refers to ‘international contact and co-operation’, namely Article 15.4. While the inclusion of international cooperation in both Article 11.1 and 11.2 should be noted, the importance of international cooperation must also be recognized with regard to other rights, primarily the right to health. The scope of the obligations under Articles 11.1 and 11.2, relating to international cooperation, will be analyzed. Moreover, Part IV of the Covenant addresses international cooperation in several provisions, particularly em-
178 179 180 181
essentially binding in international doctrine and practice.” He continues: “…it constitutes […] a universal frame of reference…”; see: <www.un.org/News/Press/docs/1998/19980914. gasm60.html>. See Eide 1999 (E/CN.4/Sub.2/1999/12, Updated Study on the right to food), Chapter VIII. Buergenthal 1985, p. 7. Ibid, pp. 7-8. As an example, Skogly 2002, p. 22 observes that States are “…under an obligation not to deliberately starve people by removing their food.”
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phasizing the role of the specialized agencies. The articles in Part IV relate to all the substantive rights of Part III. Chapter 5.3.1 will identify the international obligations elements in Article 11, and give an overview of relevant provisions of Part IV of the Covenant. Chapter 5.3.2 is an analysis of the efforts for preserving and improving plant germplasm undertaken by the Future Harvest Centers associated with the Consultative Group for International Agricultural Research (CGIAR), which has a formal cooperation with FAO.182 Chapter 5.3.3 analyzes the functions of CGIAR, particularly faced with a growing private sector. As the CGIAR prioritzes research on food (improved methods of production of food), it represents a particularly relevant form of international cooperation in the context of this study, but is only one of many forms of international cooperation. 5.3.1
International Cooperation in the Covenant
It was noted in Chapter 5.1.4 above that Article 11.2 has stronger obligations of conduct compared to Article 11.1. Moreover, Article 11.1 includes a qualification (‘based on free consent’) by which a State can choose not to engage in international cooperation. It is therefore rather evident that Article 11.2 gives stronger obligations than Article 11.1 with regard to international cooperation. According to Article 11.2, a State can refrain from international cooperation only if such cooperation is not ‘needed’. Article 11.2 is therefore the basis for the subsequent analysis. Under normal circumstances, a State has a certain margin of discretion regarding which objectives (‘improved methods for production, conservation and distribution of food’) it wants to prioritize. Under certain urgent circumstances, where a state of hunger prevails in a State or region, increased emphasis on methods for the distribution of food will be more emphasized.183 It is unfortunate, however, if such efforts detract attention from the more long-term efforts in the field of improved methods for food production. A relevant question is which forms of international cooperation shall be prioritized. Bilateral cooperation and multilateral cooperation are two main forms, and under the latter, one could add two categories: international and regional. While the Covenant does not give any clear instructions, Article 56 of the UN Charter implies that no State which is a member of the United Nations, can refrain from cooperating through the United Nations for the achievement of human rights, including the right to food,184 even if the State is extensively involved in bilateral efforts.
182 The Agreements between the FAO and the respective Centers, stating that designated germplasm of the Centers shall be held in trust for the international community is most relevant. The CGIAR Secretariat is located within the World Bank, but the Secretariat of the CGIAR’s Science Council is with the FAO. 183 This is also in compliance with the general obligation of Article 2.1, emphasizing ‘international assistance’ before ‘international cooperation’, implying that these two elements are similar. 184 Article 56 reads: “All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.”
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
For the purpose of this study, improved methods for the production of food, by making full use of technical and scientific knowledge, is of particular relevance. In this context, it must be noted that the specialized agency of most relevance for this study, FAO, has been rather reluctant to endorse a right to food approach in its work.185 The analysis emphasizes international cooperation for increased food production, particularly measures undertaken within the CGIAR structure, which has a formal relationship with FAO. Chapter 5.3.3 will examine whether these efforts can affect measures in the field of distribution of food. In the analysis on international cooperation, three provisions of Part IV of the Covenant are relevant, as they not only relate to State reporting. Part IV establishes a framework for implementing the Covenant, including international cooperation.186 Article 18187 addresses specifically the specialized agencies, calling for their ‘reporting on the progress made in achieving the observance of the provisions of the present Covenant falling within the scope of their activities’. This may include ‘particulars of decisions and recommendations adopted by their competent organs’. Article 22188 refers to ‘international measures likely to contribute to the progressive implementation of the present Covenant’. This article is directed toward ‘other organs of the United Nations, their subsidiary organs and specialized agencies’.
185 For the initial years, see Mower 1985, in particular Chapters 4 and 5; see also the (only) report to ECOSOC in 1981 (UN doc E/1981/22). There are no conventions adopted by FAO’s Council which explicitly address the right to food, but the ITPGRFA Articles 13 and 18 (establishment of a fund) and Article 9 (farmers’ rights) must be considered to contribute towards the realization of the right to food; see also FAO 1996b and 2002d. Moreover, resulting from the latter, the FAO Secretariat facilitated the Inter-governmental Working Group on the Voluntary Guidelines for the Right to Food, (FAO 2004b) and the outcome of this process has confirmed the acknowledgement of the right to food within FAO. 186 The similar Part IV of the International Covenant on Civil and Political Rights is on the functions of the Human Rights Committee, and as shown by Alston 1979, particularly pp. 90-92, the specialized agencies themselves argued that no similar committee should be set up for the monitoring of the implementation of the International Covenant on Economic, Social and Cultural Rights, as this would duplicate their work. Article 18, as well as Articles 22 and 23, are of particular importance for understanding the role that all UN bodies were given in the realization of the rights recognized in the Covenant. 187 Article 18 reads: “Pursuant to its responsibilities under the Charter of the United Nations in the field of human rights and fundamental freedoms, the Economic and Social Council may make arrangements with the specialized agencies in respect of their reporting to it on the progress made in achieving the observance of the provisions of the present Covenant falling within the scope of their activities. These reports may include particulars of decisions and recommendations on such implementation adopted by their competent organs.” 188 Article 22 reads: “The Economic and Social Council may bring to the attention of other organs of the United Nations, their subsidiary organs and specialized agencies concerned with furnishing technical assistance any matters arising out of the reports referred to in this part of the present Covenant which may assist such bodies in deciding, each within its field of competence, on the advisability of international measures likely to contribute to the effective progressive implementation of the present Covenant.”
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Article 23189 refers to ‘international action for the achievement of the rights recognized in the present Covenant’, directed, inter alia, toward technical assistance and technical meetings. The article refers to the conclusion of conventions and the adoption of recommendations as important international actions. While Articles 18 and 22 are addressing specifically specialized agencies, Article 23 is more general, and the latter will therefore be emphasized in the analysis below. 5.3.2
The Consultative Group on International Agricultural Research
The Consultative Group on International Agricultural Research (CGIAR)190 is a loose consortium of donors with the aim of promoting agricultural biotechnology through funding the activities of the 15 research centers which now call themselves Future Harvest Centers.191 The analysis of the CGIAR in this and the next section is undertaken with the purpose of answering whether the CGIAR is a form of international cooperation within the meaning of Articles 2.1, 11.1 and 11.2 (as well as 15.4 on science) which will contribute to the realization of the right to food and the right to be free from hunger, inter alia, by making full use of technical and scientific knowledge in such a way as to achieve the most efficient development and utilization of natural resources. This study will also seek to answer whether a State can justify inactivity in other foras by explaining that it prioritizes the CGIAR structure for the undertaking of its international measures. This 189 Article 23 reads: “The States Parties to the present Covenant agree that international action for the achievement of the rights recognized in the present Covenant includes such methods as the conclusion of conventions, the adoption of recommendations, the furnishing of technical assistance and the holding of regional meetings and technical meetings for the purpose of consultation and study organized in conjunction with the Governments concerned.” 190 The CGIAR in its self-presentation emphasizes the following: “The CGIAR has no constitution, no statutes, no regulations, and no membership laws. It reaches decisions by consensus, not by voting. Membership in the Group is open to any government or agency that: – supports the CGIAR mission; – is willing to participate in shaping a research agenda based on that mission; – provides financial support for the centers to implement the research agenda.” 191 There are 15 research centers all over the world, 11of which are involved in breeding activities and have gene banks with samples of germplasm. The remaining give policy advice to governments: CIAT (Centro Internacional de Agricultura Tropical), CIFOR (Center for International Forestry Research), CIMMYT (Centro Internacional de Mejoramiento de Maiz y Trigo), CIP (Centro Internacional de la Papa), ICARDA (International Center for Agricultural Research in the Dry Areas), ICRISAT (International Crops Research Institute for the Semi-Arid Tropics), IFPRI (International Food Policy Research Institute), IITA (International Institute of Tropical Agriculture), ILRI (International Livestock Research Institute), IPGRI (International Plant Genetic Resources Institute), IRRI (International Rice Research Institute), IWMI (International Water Management Institute), WARDA (West Africa Rice Development Association), ICRAF (World Agroforestry Centre) and World Fish Center. ISNAR (International Service for National Agricultural Research) was closed down in 2003, and most of its activities transferred to IPGRI.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
will therefore not be a broad presentation of the CGIAR system as such or any of the Future Harvest Centers, but will relate specifically to the question of whether CGIAR is an appropriate framework for undertaking international measures in support of the right to food. Below, focus will be on measures relating to production undertaken through the various research programmes in the Future Harvest Centers of the CGIAR. The research undertaken at most of the Centers is on genetic resources with crop improvement as the ultimate aim. In Chapter 5.3.3 below, the focus will be on how the CGIAR ensures an actual distribution of genetic resources crucial for food production. The CGIAR’s Mission is “to contribute to food security and poverty eradication in developing countries through research, partnerships, capacity building, and policy support, promoting sustainable agricultural development based on the environmentally sound management of natural resources.”192 Based on this Mission, it seems that CGIAR is a form of international cooperation within the meaning of Article 23 of the Covenant. Based on the general obligation of Article 56 of the UN Charter, as well as Articles 2.1 and 11.2 of the Covenant, a State which only applies the CGIAR structure for undertaking its international measures, cannot be said to act in full compliance with the Covenant. As established in Chapter 5.3.1 above, measures of assistance can be relevant, particularly if hunger prevails in one State, and other States dispose of relevant resources. Therefore, CGIAR is important, also in the context of the Covenant, but cannot prejudice the taking of other international measures. Of specific relevance is whether CGIAR is a form of international cooperation to be supported and endorsed, depending, inter alia, upon how it relates to the special needs and problems of marginalized farmers There is a need for more detailed knowledge of the CGIAR. Basic information on CGIAR is as follows: CCGIAR was formally established in 1971, and is primarily directed toward agriculture in the developing countries. Private foundations were the most important financial supporters in the early phase, but this changed through the 1970s and 1980s. In the 1990s, the World Bank has become the most important contributor.193 The CGIAR keeps more than 650,000 germplasm collections. Every year almost 150,000 samples of these collections, as well as 500,000 breeding lines arising from the improvement programs, are distributed.194 As such, distribution is done for free, and as access to one interested party does not reduce the access for other parties, the genetic resources kept by CGIAR can be considered to be global public goods.195 192 A CGIAR ‘slogan’ found on the home page is ‘Nourishing the Future through Scientific Excellence’. 193 Alston et al. (eds.) 1998, p. 1068. 194 Hawtin et al. 1997, p. 248. The number presented in Koo et al. 2004b, p. 8, is 100,000 samples yearly. 195 UNDP defines the characteristics of global public goods as ‘non-excludable’ (all have access) and ‘non-rival’ (one’s access does not reduce others access). In cases where all do have access, but the consumption of the good by one negatively affects the possibilities of consumption by others, these goods are not considered as ‘pure’ public goods.
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CGIAR has developed cooperation with the private and the public breeding sector. As the Centers want to be in the forefront internationally, they need to strengthen the relationship with the life-science industry.196 The CGIAR Centers invest less in research than the research budget of the largest ‘life science’ companies, and their research budgets represent only four per cent of total agricultural research globally.197 In light of how Article 11.2(a) addresses improved methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, it must be considered that the various Future Harvest Centers offer important services to the developing countries. This is also relevant in the context of Article 23 of the Covenant, addressing technical assistance, as well as adoption of recommendations and conclusion of conventions. The Centers provide tools and resources both for those countries which undertake substantial domestic agricultural research, as well as for those in which little such research exists. An author who has examined the CGIAR system has, however, found no examples of a ‘targeted research’ approach directed towards developing countries.198 Rather, the technology which has been developed for the conditions prevailing in industrialized countries has been introduced in the markets of developing countries through a ‘spillover benefits’ approach. What impact this introduction of ‘western’ technology will have on the most marginalized, cannot be answered generally. The situation of most marginalized farmers, however, requires a type of agricultural research that is consciously adapted to their needs in order to have a postive effect.199 A particular challenge arises in the context of the strong push for more active involvement of the CGIAR Centers regarding transgenic research and intellectual property management.200 Such efforts could be considered to represent a policy of ‘making full use of technical and scientific knowledge’ as stated in the terms of Article 11.2(a) of the Covenant. There is no indication of heavy investments in such research yet.201 These efforts can neither reduce the importance of conventional or traditional breeding practices, nor do they seek to replace these practices.202 196 For strong arguments in favor of public-private partnerships, identifying obstacles that must be overcome to promote such partnership, see Spielmann and Grebmer 2004. These two authors, one being an IFPRI consultant on public-private partnerships and the other being Director of communications at IFPRI, tend to be more enthusiastic concerning such partnerships with regard to institutions, than with regard to farmers. The following sentence illustrates this: “…public-private partnerships can generate significant benefits for private firms and public institutions, while also serving the interests of resource-poor or vulnerable households in developing countries” (ibid, p. 3, emphasis added). 197 World Bank 2003, p. 15. 198 Traxler 2001. 199 Meinzen-Dick et al. 2003. 200 See inter alia, Lipton 1999 and Lesser 2003, saying on p. 11: “The CGIAR must raise the capacity of the NARS in the area of IPR…” 201 CGIAR 2000a, foreword, p. xvi. See FAO 2004a, p. 97: “For smaller countries with less wellestablished NARS, the international research centers of the CGIAR system or regional intellectual property holding companies may be the only source of transgenic technology.” 202 Spillane 1999, p. 9.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
The results from the research taking place at the CGIAR Centers shall ideally be available for all breeding activities, independent of whether such breeding is undertaken by public research centers or private business. As seen above, the CGIAR Mission identifies food security and poverty eradication, but it is important to note that the Future Harvest Centers primarily relate to local and national breeders, particularly in the developing countries, and not directly to farmers. An expected outcome of breeding is improved quality of the seeds, and it is assumed that the quality of the seed available to the farmers, and hence the farmers’ harvest, will increase. Projects aiming at participatory plant breeding in order to ensure in situ conservation (conservation of plant genetic resources in the field) have been undertaken by several of the Future Harvest Centers.203 Article 23 of the Covenant, which addresses ‘the furnishing of technical assistance’ must be considered to apply to the Future Harvest Centers, as these Centers are involved both in technical support, and in making recommendations relating to their specific area of competence, namely conservation and improvement of plant genetic resources. Clearly, several national agricultural research centers are depending upon the CGIAR Centers, both for germplasm accessions and for policy advice,204 but in other States, agricultural research has become more advanced than the efforts undertaken at the Future Harvest Centers. In the context of the CGIAR Centers’ mandate to give advice on plant genetic resources in order to contribute to the realization of the right to food, an interesting perspective is presented in the Report from the Third System Review, conducted in 1998. In a paragraph proposing a legal entity within CGIAR holding patents resulting from new research at the different Centers, it is stated that this recommendation is “…based on the premise that access to the means of food production is as much a human right as access to food.”205 Three observations can be drawn from this. First, the drafters of the report did not consider there to be a conflict between patenting and access to seeds. Chapter 12.3.2 will come back to CGIAR’s policies with regard to patenting, asking whether the views expressed by the Future Harvest Centers of the CGIAR make them fit for advising farming-dependent developing countries. Second, the understanding that ‘access to means of food production is a human right’ is an understanding which does not find resonance in human rights treaties.206 Such access, however, is an important precondi203 See the report from a seminar by Eyzaguirre and Iwanaga 1996, issued by Rome-based IPGRI. 204 But see World Bank 2003, p. 5: “NARS [national agricultural research systems] argue that the CGIAR has not kept pace with their increasingly complex needs and does not consider them equal partners.” Lesser 2003, p. 5, refers to the various reviews of the CGIAR-NARS relationship, observing “…a mixed message regarding the relative priority of more basic research. While some refer to the potential of biotechnology to serve CGIAR goals, others emphasize the importance of the poverty elevation goal…” 205 CGIAR 1998b Executive Summary, p. ix. The Report was discussed at the International Centers Week in 1998, but certain recommendations of the Report were not endorsed, primarily as there were reservations against a more centralized system (see CGIAR 1998c, p. 21). 206 In the 1996 World Food Summit Rome Declaration and Plan of Action (FAO 1996b), paragraph (f) of Objective 2.1 reads: “Promote access, by farmers and farming communities, to
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tion. This view must be considered to be a private view of the drafters of the report, and is too focused on the production aspect, ignoring the actual food consumption. Third, the views expressed regarding the importance of access to the means of food production, are very valuable and should hence be endorsed. Therefore, emphasizing measures of increased food production and conservation, it must be concluded that the CGIAR - in accordance with Article 11.2 - constitutes an important form for international cooperation for the realization of the right to food.207 The wording of Article 11.2, as well as Article 2.1 of the Covenant implies that meaures can be taken individually or through international cooperation. While international measures leading to improved methods of food production are important, a State cannot refrain from taking measures on the national level due to its international measures. The general principle must be that only if all individuals are fully enjoying the right to be free from hunger, is there no need for additional measures on the national level, and the State can devote its efforts solely to international measures. This general principle does not say anything about the priorities between the various measures. There can be no doubt that publicly supported research for improving food production is of great value. Finally, it must be observed that increased productivity is not the only objective of the CGIAR. Already in 1990, natural resource management became a twin pillar of research, the other being increased productivity.208 We have also seen above that CGIAR’s Mission is to contribute to food security and poverty eradication. There are many and conflicting interests concerning what shall be the actual outcome of the activities of the CGIAR system. These conflicts must be presumed to be larger in the present context of the ‘gene revolution’ with the active involvement of private research, depending upon intellectual property protection, and the public goods nature of the research at the CGIAR centers.209 5.3.3
The Relationship between FAO and CGIAR
We saw above that the CGIAR system makes an important contribution for the increased production, and that the germplasm is, in principle, available for further breeding, but that many of the activities within the CGIAR Centers are not undertaken specifically with the active involvement of the farmers themselves. The CGIAR Centers, which are keeping the highest number of ex situ germplasm collections in the world, have a crucial role establishing principles of general access to the material. As noted above, the Centers are not themselves obliged to involve traditional genetic resources for food and agriculture.” While being a crucial strategy for promoting food production, this paragraph says that access to plant genetic resources is important, but such access is not a human right per se. 207 GCIAR represents only four per cent of world agricultural research funding (World Bank 2003, p. 15). 208 Johnson 2003. 209 Lesser 2003, pp. 1-2, observes that in the GCIAR, the biotechnology, the genetic resources and the intellectual property rights relate to the production of global public goods, emphasizing the new knowledge coming out of the CGIAR activities.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
breeders or farmers who have made use of, improved or provided the genetic material, as the Centers primarily relate to the modern breeders, public or private. A presentation of the Future Harvest Centers cannot be done without presenting the responsibility the Centers are given as ‘guards’ of the germplasm they keep in their ex situ collections, through an Agreement which each of the Centers has signed with the FAO. The 1994 Agreement,210 which establishes the basis of the cooperation with FAO, is based on the CBD and the FAO’s International Undertaking on Plant Genetic Resources, which preceded the ITPGRFA. The most important part of the 1994 CGIAR-FAO Agreement, signed with all the CGIAR Centers keeping germplasm, is Article 3(a) and (b):211 The Centre shall hold the designated germplasm[212] in trust for the benefit of the international community, in particular the developing countries…. The Center shall not claim legal ownership over the designated germplasm, nor shall it seek any intellectual property rights over that germplasm or related information.213
We shall analyze whether these principles are under threat, in other words whether the general and free access to the CGIAR germplasm held ‘in trust’ is difficult to maintain. Such access is crucial in order to ensure distribution of improved means of food production, also to those who are not able to pay. Is there an appropriate balance between the principles established by the FAO Agreement and the conditions and possibilities inherent in an increased cooperation with the private sector? The cooperation resulting from the FAO-CGIAR Agreement of 1994 has entered a new phase after the adoption of the ITPGRFA in 2001. FAOs Commission on Genetic Resources for Food and Agriculture, acting initially as the Governing Body (‘Interim
210 The Agreement Between [name of Centre] and the Food and Agricultural Organization of the United Nations (FAO) Placing Collections of Plant Germplasm under the Auspices of FAO, reprinted in System-wide Genetic Resources Programme (SGRP) 2001, pp. 2-7. 211 FAO 1994. 212 The term ‘designated germplasm’ must be explained. First, it is important to note that not all germplasm collections held by the CGIAR are designated germplasm, and for some of the centers, only 70 per cent of their germplasm is held under the conditions established by the FAO-Center Agreement. Simply said, the germplasm which has been improved through different forms of research tends not to be among the ‘designated germplasm’, while the germplasm in its original form, is ‘designated germplasm’. Second, after the entry into force of the ITPGRFA, the term ‘designated germplasm’ will no longer be used for the germplasm held ‘in trust’, as the genetic material will be included – or not – in the Multilateral System established in accordance with Articles 10 through 13 of the ITPGRFA. For material not included in the Multilateral System, a Multilateral Transfer Agreement will apply to such materials, including when exchanging such plant genetic resources with States that are not parties to the ITPGRFA. 213 This principle is confirmed by CGIAR 1998a (Press Release of February 11, 1998: “GCIAR Halt to Granting of Intellectual Property Rights for Designated Plant Germplasm”).
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Committee’) to the ITPGRFA214 has drafted a new agreement relating to the germplasm of the CGIAR Centers.215 The Ministerial Declaration from the first meeting of the Governing Body called upon all Future Harvest Centers holding ex situ collections to sign agreements with the Governing Body,216 based on a model agreement that was adopted at the same session.217 The Governing Body will in the future be responsible for all aspects of the Agreement with the relevant Future Harvest Centers, in accordance with Articles 10 through 13 of the ITPGRFA, establishing the Multilateral System. As the provisions on intellectual property are contained in the ITPGRFA, there are no provisions similar to Article 3 in the new FAO-CGIAR Agreement. The analysis below is on access or resource-based distribution, not of physical food per se, but of the genetic resources found in the seed from which food is produced. To which extent does the cooperation with FAO, as well as the influence from the private sector, impact on the general accessibility of the germplasm kept in – and the new products resulting from the research undertaken by – the Future Harvest Centers of the CGIAR? Some observations regarding the private sector will be made. CGIAR and the private sector cooperation: The Centers are faced with specific requirements in several agreements of cooperation entered into with the private sector. The private sector depends upon intellectual property rights for their continued research investments, and will need to relate to entities which respect these rights. It must be presumed that the private sector is an attractive partner for many of the CGIAR Centers,218 due to the advanced research, but the Centers themselves are also attractive. The CGIAR Centers have their focus on agriculture in developing countries, providing the best biotechnology available. Improved seeds are perceived as being crucial for eliminating the hunger problem of developing countries. It must be asked whether the policy advice – based on strategies embedded in advanced, and increasingly privatized 214 This interim Governing Body has met twice (2002 and 2004), but as the ITPGRFA has entered into force, a new Governing Body made up of representatives of member States will be established. 215 FAO 2002g: ‘Draft Agreement between the […(Center)]and the Food and Agricultural Organization (FAO) acting on behalf of the Governing Body of the International Treaty on Plant Genetic Resources for Food and Agriculture’, preambular paragraph 5. Only crops in the Multilateral System are included. 216 FAO 2006, p. viii, paragraph 2(a). For the new Material Transfer Agreement, see ibid, Appendix G. 217 Ibid, Appendix K; see also pp. 10-11 of the report, indicating a signing ceremony at World Food Day 16 October 2006, and Appendix L, the latter containing commitment from the Future Harvest Centers. 218 CGIAR’s Third External Systems Review (CGIAR 1998b) recommended that the CGIAR forms strategic alliances with the private sector in order ‘to provide the best science to developing countries’. Representatives of private companies are on the boards of the various Centers, and the CGIAR centrally since 1995, has a Private Sector Committee (PSC), in order to improve the dialogue between the private sector and the CGIAR; see <www.cgiar.org/ who/structure/committees/partnership/ps-members.html>.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
research originating in industrialized countries – is able to serve the interests also of the most marginal farmers. New technology might need certain investments and a certain willingness to take risks, and many poor farmers are not in a position to actually benefit from the introduction of new technology. The technology developed through participatory processes has a higher chance of succeeding in improving food production, in a manner appropriate for the local farmer, and hence their actual command over food. Female farmers must be considered as a particularly important group, based on the fact that most of the agricultural production in many States is the result of the efforts by women. All Future Harvest Centers have an increasing cooperation with the private sector, which is increasingly involved in providing the improved seeds. Exposure to modern, commercial provision of seeds, could eventually imply dependency upon purchased inputs and a push toward more frequent replacement of seeds. These are crucial factors which could bring considerable costs to the individual farmer, even though these costs might be repaid through increased yields. This concern becomes even more crucial in the context of the increased cooperation between the Future Harvest Centers and the private sector.219 In a study, it is stated: “Probably the single greatest challenge confronting the IARCs concerns the future of their relationship with the private sector.”220 The Future Harvest Centers are careful, however, to issue general warnings against strong intellectual property protection for biotechnology inventions. IPGRI, in a 1999 document,221 confirmed that protection benefits States with strong biotechnology capacity or States with infrastructure and skills for developing such capacity. Three observations were made in the document with implicit reference to developing countries. First, the presence of multinational plant breeding companies is unlikely to stimulate the development of domestic industry capacity. Second, the patenting of genes and plants could have adverse effects on the price of seeds and other propagating materials. Third, the costs of administering patent applications for plant biotechnology are higher than the costs for administering a plant variety protection. During the last years, similar observations have not been issued by any of the CGIAR Centers. CGIAR and general accessibility in line with the FAO Agreement: It is beyond the scope of this study to give a thorough assessment of the impact of the current GCIAR research and breeding programs. Furthermore, the consequences of public-private partnership where CGIAR is involved are difficult to assess in general. Initially it must be noted 219 There are several documents produced by the CGIAR emphasizing the need for entering into partnership with the private sector, see particularly a document prepared by the Private Sector Committee for the Mid-Term Meeting in 1997 (CGIAR 1997): Strengthening CGIAR-Private Sector Partnerships in Biotechnology. In the Summary of proceedings from the CGIAR International Centers Week in 2000 on Frontier Science, Global Public Goods and the CGIAR (CGIAR 2000b), the Chair of the PSC, representing a private company acknowledges the tensions that exist between ‘ownership’ and ‘free availability’ (p. 24), stated on p. 25, that the “…private sector is willing to enter into a dialogue on a new ‘social contract’.” 220 Morris and Ekasingh 2002, p. 222. 221 IPGRI 1999, p. 12.
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that the private sector cooperation will concentrate on the non-designated germplasm, which is not covered by the FAO Agreement.222 The activities of the Centers seek to promote the availability and accessibility of food, in other words, resource-based distribution of the food resources. There has been a lack of acknowledgement of human rights principles in the CGIAR. ‘Food security’ has been the dominant approach in the CGIAR system, as in the FAO. It is important to note, however, that a draft on new guidelines on intellectual property, proposed by the CGIAR’s Genetic Resources Policy Committee in 2000, included the following wording under the ‘Purpose’: “Promote the human right to access to food.”223 The Center Directors rejected the need for a revision of the guidelines, and found that the 1996 Guidelines were appropriate.224 As a result of this rejection, neither the right to food nor the right to access to food, has been confirmed by the CGIAR.225 The most important aspect of the CGIAR and accessibility is the ‘trusteeship system’ based on the FAO-CGIAR Agreement, as well as two more elements. First, a Material Transfer Agreement (MTA), which existed in different versions, including an ‘interim’ version in 2002-06,226 but which was adopted in its final, ITPGRFA-compatible form in 2006.227 The aim of the new MTA is “…promoting the conservation and sustainable use of plant genetic resources for food and agriculture.”228 The provisions relating to intellectual property protection in the MTA (Articles 5(d), 6.2, 6.9 and 6.10) do not have a different scope than the ITPGRFA. Based on these agreements, the CGIAR considers their germplasm held ‘in trust’ to represent global public goods. Second, the “Joint Statement”, which has been issued in 1994 and again in 1998.229 The 1994 Joint Statement states further that the Center shall not “…be under an obligation 222 The Centers are responsible for presenting updated lists on its new accession of designated germplasm to the FAO; similar obligations do not exist regarding non-designated germplasm. 223 CGIAR 2000c. 224 Found in System-wide Genetic Resources Programme 2001, p. 31. 225 See also CGIAR 1998b, in which the right to access to the means of food production was said to be a human right on an equal footing as the right to access to food. This was not endorsed by the Centre Directors, and the position can also be criticized as lacking sufficient basis in human rights treaties. 226 The text of the interim standard Material Transfer Agreement (MTA) was adopted at the same CGRFA Session in 2002 (FAO 2002c). A more permanent standard MTA was discussed at the second meeting of the CGRFA acting as Governing Body of the ITPGRFA (see FAO 2004c; see also FAO 2004d, paragraphs 10 through 12). Different approaches will be applied with regard to the food and forage crops within and outside of the ‘Multilateral system’ established by the ITPGRFA, as the explicit benefit-sharing provisions of the ITPGRFA apply only to the former. Those crops which are not a part of the Multilateral System will be made available in accordance with specific MTAs. South Centre and CIEL 2004, p. 8, says that the “…enforceability [of the MTA] will become essential for the effectiveness of the multilateral system.” 227 FAO 2006, Appendix G, see also ibid, pp. 5-7. 228 Ibid, Appendix G, Article 10. 229 See System-wide Genetic Resources Programme 2001, pp. 8-12.
The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights
to monitor the compliance of the recipient of these undertakings; the obligation of the source Center will be limited to obtaining such undertakings on part of the recipient.”230 The second Joint Statement elaborated more on this issue. This was based on consultations in the years after 1994. In the 1998 Joint Statement, the Centers were given a more active role in cases of a violation of a Material Transfer Agreement. Help from non-governmental organisations has been crucial in identifying such violations.231 In the ITPGRFA, the mediation and arbitration relating to application of the treaty is regulated in Annex II and Article 22. The new agreements with the Future Harvest Centers and the MTA have provisions on disputes, mediation and arbitration.232 Hence, each Center still has a reponsibility to address issues of unwarranted appropriation and exploitation of plant genetic resources belonging to the Multilateral System. Moreover, while the old FAO Agreement said that germplasm shall be used for ‘scientific research, plant breeding or genetic resource conservation’, there is a footnote in the 1998 and 2002 Material Transfer Agreements stating: “This does not prevent the recipient from releasing or reproducing the seed for purposes of making it directly available to farmers or consumers for cultivation, provided that the other conditions set out in the MTA are complied with.”233 In practice, this implies that the material found in these gene banks can be directly commercialized by anyone who observes the general provisions of the Trusteeship system, as understood in the context of the ITPGRFA. Future challenges will be related to how these two contentious issues are solved, and how this ‘trusteeship system’ is strengthened through implementing the ITPGRFA. Conclusion: With regard to germplasm which is covered by the FAO Agreement, there are explicit requirements. This germplasm is held ‘in trust’ for the international community and shall be made available for further breeding and improvement, subject to the conditions in the ITPGFRA and MTAs. This must be understood to promote resource-based distribution of food. Similar requirements do not apply with regard to that germplasm which is a result of the breeding by the Centers themselves. Hence, there is no guarantee that crops resulting from breeders efforts by the CGIAR Centers shall be publicly available, but ‘availability to stakeholders’ is emphasized by the Centers.234 Intellectual property policies at the Centers will be analyzed in Chapter 12.3.2. To make one definite conclusion on the resource-based distribution resulting from the introduction of new varieties is not possible at this stage of the analysis. There is a need for more knowledge about patent and plant varieties protection, as well as a better understanding how the Centers themselves have responded to private ownership over plant genetic resources in their policies and strategies for dealing with the private sector. 230 Ibid 2001, p. 9; see also FAO 2002c. 231 See, inter alia, the report “Plant Breeders’ Wrongs”, issued by (then) RAFI in 1998, documenting especially how Australian breeders were in the process of being granted Plant Breeders’ Rights on several plant varieties which had originally been obtained from two of the CGIAR centers, with the general conditions attached to them. 232 See FAO 2006 Appendix G, Article 8.4 and Appendix K Article 7. 233 See System-wide Genetic Resources Programme 2001, p. 13 and FAO 2002c. 234 Louwars et al. 2005, p. 122.
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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
Article 15 of the International Covenant on Economic, Social and Cultural Rights is probably the least-discussed of the material articles of the Covenant. The article covers at least three different recognized human rights, and regulates cultural rights. The whole Article reads: 1.
2.
The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
In Chapman and Russell (eds.) 2002, there are three different Chapters on Article 15, one on each of the three parts of Article 15.1. It is moreover possible to consider the provisions of Article 15.3 (the right of freedom from interference) as a separate right; see Eide 2001, pp. 292-299, in Eide et al. (eds.). Article 27 of the International Covenant on Civil and Political Rights can also be considered an article regulating cultural rights: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” Article 27 is interpreted by General Comment No. 23, issued by the Human Rights Committee in 1994. The most relevant part of this General Comment is paragraph 7: With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.
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3. 4.
The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.
This chapter will in particular focus on Article 15.1(b) and 15.1(c), interpreted in the context of the rest of the article, as well as the whole Covenant. These paragraphs are short and not very clear. To clarify or confirm interpretations, reference will be made to the travaux préparatoires of both the Universal Declaration and the Covenant. There was, for many years an almost total ignorance regarding the rights recognized in Article 15. An illustration can be found in a document by the UN Secretary-General to the Commission on Human Rights, presenting the Committee’s draft of an Optional Protocol, allowing for an individual complaints procedure. Previously, there had been discussions whether Article 15 should be excluded from the rights covered by a possible ‘optional protocol’. The document from the Secretary-General, however, observed that “it would be difficult to single [Article 15] out for exclusion while retaining other formulations of equvivalent generality.” There are no recent attempts of ascribing a secondary nature to the rights recognized in Article 15. Another example is the work in the aftermath of the first International Conference on Human Rights in 1968, which addressed the relationship between technology and human rights. Both the General Assembly, by commissioning several studies, and somewhat later, the Commission on Human Rights, were addressing science in the context of human rights. An assessment concludes that the focus of these studies and resolutions fall within the following three categories: 1) peace, security and disarmament; 2) transfer of science and technology to developing countries; 3) the negative aspects of scientific and technological developments.
The mandate for initiating a process on the negotiation on an Optional Protocol to the Covenant on Economic, Social and Cultural Rights, is found in the Vienna Declaration on human rights (A/CONF.157/23), which stated in paragraph 75: “The World Conference on Human Rights encourages the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the International Covenant on Economic, Social and Cultural Rights.” See E/CN.4/1997/105, p. 8 paragraph 24, Final Act of the International Conference on Human Rights: U.N. Doc. A/CONF. 32/41. General Assembly Resolution No. 2450 (XXIII). Kutoba 1990, p. 123. One example is the 1982 General Assembly Resolution A/RES/37/189 “Human rights and scientific and technological developments”, which reaffirms the right to life, and then deals almost exclusively with the arms race.
The Right to Benefit from the Moral and Material Interests of Scientific Production
The Commission never proceeded on the drafting of “…appropriate standards to protect human rights and fundamental freedoms in the context of scientific development.” Rather, the Commission on Human Rights, based on the discussions in the early 1980s, agreed on a general study.10 The mandate for this study did not refer to Article 15 of the Covenant. There was no substantial response from any of the treaty-based or charterbased bodies, although the study explicitly invited further contributions from the relevant UN bodies. Moreover, in the 1993 Vienna Declaration on Human Rights, Article 15.1(b) was reiterated, followed by general concerns relating to science and human dignity.11 In the same year, there was the first attempt to clarify the legal content of the provisions of Article 15.1 of the Covenant, more specifically Article 15.1(c). This took place in the German Chapter of the International Law Association (ILA) which sought to present a draft ILA Declaration on intellectual property rights and technology transfer.12 The proposal was met with opposition, and was subsequently withdrawn in 1995. Thereafter, from 2000 onwards, the Committee on Economic, Social and Cultural Rights has facilitated discussions on Article 15, in particular 15.1(c), with relevant international experts and international organizations. Some of the documents prepared for these discussions are relevant sources for the interpretation of this paragraph. The most important interpretative material is General Comment on Article 15.1(c), 13 adopted in 2005. The most important part of General Comment No. 17 is its strong emphasis that the rights recognized under Article 15.1(c) “…derives from the inherent dignity and worth of all persons. This fact distinguishes article€15, paragraph€1 (c), and other human rights from most legal entitlements recognized in intellectual property systems.”14 Neither other bodies have been involved in elaborating the content and scope of Article 15.1(c). Treaties, resolutions and declarations which relate to the three paragraphs of Article 15.1 have been adopted. This applies particularly to the subject matter of Article 15.1(a) (right to participate in cultural life), which has been regulated in trea
The mandate is given in General Assembly Resolution No. 2450 (XXIII), preambular paragraph 3. 10 E/CN.4/RES/1986/9: “Use of Scientific and Technological Developments for the Promotion and Protection of Human Rights and Fundamental Freedoms”. The study was undertaken by the United Nations University. 11 A/CONF.157/23 paragraph 11 reads (extracts): “Everyone has the right to enjoy the benefits of scientific progress and its applications. The World Conference on Human Rights notes that certain advances, notably in the biomedical and life sciences as well as in information technology, may have potentially adverse consequences for the integrity, dignity and human rights of the individual, and calls for international cooperation to ensure that human rights and dignity are fully respected in this area of universal concern.” 12 The text of the Draft Declaration on “Existing and Evolving Principles and Rules on Freedom of Knowledge, International Protection of Intellectual Property and Transfer of Achievements of Science and Technology” can be found on pp. 452-457 in Oppermann 1997. 13 E/C.12/GC/17: “The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. Article 15.1(c) of the Covenant”. 14 Ibid, paragraph 1.
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ties of a more comprehensive nature.15 Regarding 15.1(b) (right to benefit from science), there are no international treaties, only resolutions16 emphasizing State obligations. With regard to Article 15.1(c), there are several intellectual property rights treaties. There are three main reasons why Article 15 is presented comprehensively in this study on the right to food and TRIPS. First, there is a need to understand the scope of authors’ rights in Article 15.1(c), as well as the relationship between authors’ rights in the Covenant and intellectual property rights recognized in TRIPS. Second, there is a need to better understand the rights relating to scientific progress, also as these relate to the phrase ‘making full use of technical and scientific knowledge’ in Article 11.2(a). Third, this analysis will allow for some observations on the balance between Article 15.1(b) and 15.1(c). These issues will also establish the structure for this chapter. Article 15.1(a) will not be analyzed in detail, but is included in Chapters 9.2.7, 12.2.3 and 12.3.2. 6.1
Article 15.1(c)
Article 15.1(c) is most commonly referred to as ‘authors’ rights’. It recognizes the right for everyone to: benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
The rights recognized by Article 15.1(c) are, like all other human rights, derived from the inherent dignity and worth of all persons.17 The Committee on Economic, Social and Cultural Rights states that the rights recognized by Article 15.1(c) are different from intellectual property rights, which are temporary, and can be revoked, licensed or assigned.18 The Committee makes a general observation on the relationship between authors’ rights and intellectual property rights: “…the scope of protection of the moral and
15 For an overview of UNESCO conventions on cultural rights, see Marks 2003. 16 The most important is General Assembly Resolution 3384 (XXX) adopted 10 November 1975: Declaration on the Use of Scientific and Technological Progress in the Interest of Peace and for the Benefit of Mankind. One should observe the generality and political nature of these resolutions. Schrijver 2003 finds that the right to benefit from scientific progress is part of the international law of development. 17 The German ILA Draft Declaration of 1993 (presented through the ILA’s International Trade Law Committee) which proposed in preambular paragraph b)cc) the following wording (extracts): “From the existing rules and principles in the field of human rights protection, it may, therefore, only be possible to conclude on certain principles of such “intellectual” rights, which have their specific content close to human dignity. This is not the case in the vast area of “industrial” property rights…” (quoted from Oppermann 1997, p. 455). 18 E/C.12/2001/15, Statement on Article 15.1 (c), paragraph 2.
The Right to Benefit from the Moral and Material Interests of Scientific Production
material interests of the author provided for under Article 15 of the Covenant does not necessarily coincide with what is termed intellectual property rights…”19 Others find, however, that the wording of this paragraph justifies claims that intellectual property rights are human rights.20 An alternative position is that the scope of Article 15.1(c) is considerably different from those intellectual property rights which protect corporate interests and investments.21 After presenting arguments made both for and against recognizing authors’ rights as human rights, Article 15.1(c) will be analyzed. Finally, we will examine whether Article 15.1(c) has actually been applied. 6.1.1
Authors’ Rights as Human Rights?
Initially, it must be observed that there is only one other internationally binding instrument which explicitly recognizes authors’ rights. In the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights,22 authors’ rights are recognized in Article 14.1(c). Moreover, in the non-binding 1948 American Declaration of the Rights and Duties of Man,23 authors’ rights (as well as inventors’ rights) are recognized in Article 13. The American Declaration inspired many of the Latin American States to promote the rights of the intellectual worker also in the United Nations. Most explicitly is this stated in the first intervention by Mexico in the negotiations of Article 25 (now 27) of
19 Ibid, paragraph 6. Statements are political messages, and must be considered to be rather weak - at least until such interpretations have also been applied in the examination of State reports. 20 See Pires de Carvalho 2005, p. 242 (footnote 654), and Idris 2004, p. 241; see also Dieng 1999 21 See Gana 1996, p. 323, and Coombe 1998, p. 86. See also Sub-Commission 2000a, paragraph 1. 22 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) O.A.S. Treaty Series No. 69 (1988), entered into force 1999. The monitoring of the implementation of the Inter-American Protocol is primarily based on State reports to be ‘submitted to the Secretary General of the OAS, who shall transmit them to the Inter-American Economic and Social Council and the Inter-American Council for Education, Science and Culture so that they may examine them’ (Article 19.2 of the Optional Protocol). Under specific circumstances, however, the Commission and the Court might be directly involved. This applies more specifically when the ‘rights established by paragraph a) of Article 8 [trade union rights] and in Article 13 [right to education] are violated by action directly attributable to a State Party to this Protocol’ (Article 19.6 of the Optional Protocol). 23 American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX [30], adopted by the Ninth International Conference of American States in 1948.
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the Universal Declaration of Human Rights.24 A long passage from the intervention illustrates the vision that guided some delegates:25 No Article in the draft declaration dealt specifically with the rights of the intellectual worker. The same omission had existed in the original version of the draft American declaration on the rights and duties of man. The Mexican delegation had had the honour, at Bogotá, of proposing the Article on the protection of intellectual and artistic work which had been unanimously adopted, and was submitting to the Third Committee an amendment (A/C.3/266[26]) based on the text adopted at Bogotá. World opinion had unanimously recognized that the Bogotá declaration owed its progressive and advanced nature in part to the introduction of the idea of the protection of intellectual work; similarly the Third Committee ought unanimously to recognize the necessity of introducing that new idea in a declaration that would have a still wider scope than the Bogotá declaration, since it was to be a universal declaration...
On the other hand, there were other delegations from the same continent that were not convinced by the arguments presented by Mexico. Ecuador said that the: Article […] was one of the most confused and contradictory that the Committee so far had to examine.[…] The delegation of Ecuador did not think it right, in a general declaration of human rights, to make special mention of the rights of writers and inventors, who formed only a small proportion of society.[27] The question of literary and scientific property belonged
24 For an analysis on Article 27 of the Universal Declararation, see Adalsteinsson and Thórhallson 1999. They state that the first part of Article 27, on rights relating to ‘cultural life and scientific advancement’ is complex. They continue (p. 575): “The second paragraph of Article 27, on authors’ rights, does not raise too many problems of interpretation; the first paragraph and its interpretation, influence and potential are much more interesting.” The two authors presume that article 15.1(c) is in line with intellectual property legislation, and do not present any objections to this view. 25 A/C.3, Records of the General Assembly (1948): Item 77: Draft international declaration of human rights (E/800), p. 617. The negotiations took place in the Third Committee of the General Assembly. 26 Different proposals were presented in the 1948 Session of the General Assembly. France (A/ C.3/244/Rev.1/Corr.1) and Cuba (A/C.3/261) presented the first proposals on the protection of moral and material interests of the author. These were later joined in a joint amendment, in which Mexico also participated (A/C.3/360), which applied the phrase ‘in any inventions or literary, scientific or artistic work’. This proposal was later amended by China (A/C.3/361), in which the term ‘invention’ was deleted and ‘scientific’ was put before ‘literary’, and this wording was subsequently adopted as Article 27.2 of the Universal Declaration of Human Rights. 27 This was already addressed by Mexico in their comprehensive first intervention (A/C.3 (1948), E/800, p. 617): “It might be argued that the Mexican amendment dealt with rights of any particular category of persons only, but was that not true also for property rights and the rights of the wage-earner?”
The Right to Benefit from the Moral and Material Interests of Scientific Production
under the general Article on property rights.[28] […] The delegation of Ecuador thought it preferable, in the interest of a good draft declaration, to delete Article 25 entirely.29
These two different positions illustrate that the discussion taking place was one of principles on how far human rights protection should extend. The philosophy of intellectual property rights, and the need to protect such rights was positively expressed by the French delegation: “…the world […] must also honour the names of those who laboured for the common good.” 30 Furthermore, as stated by Peru, the freedom of creative thought must be recognized, “…in order to protect it from harmful pressures which were only too frequent in recent history.”31 It was also stated by another delegation that protection of moral and material interests of the creative person or scientist was not general property rights, as the “…former was more abstract and, more than any other, lent itself to infringement.”32 The observation that “…the indisputable rights of the scientific worker could not appear beside fundamental rights of a more general nature…”33 illustrates that not all delegations considered that these rights were human rights. Furthermore, it was asked if it were possible “…in a country where there existed no law protecting authors’ copyrights or patents, to speak of the infringement of fundamental human rights.”34 There were different opinions between the delegations, but the view among those advocating for the inclusion of authors’ rights was that the intellectual workers deserved protection, also because it was easy to infringe on their rights by using and exploiting their work. Those arguing against its inclusion found it difficult to categorize rights of scientific workers as human rights, as they also applied to few people. Article 15.1(c): The major change from the negotiations concerning authors’ rights in the Universal Declaration to the the negotiations of what was to become Article 15.1(c) in the Covenant, was that the communist States became more negative toward any recognition of authors’ rights. Partly as a result of that, the non-communist States became more positive. The tensions were particularly strong in the Third Committee of the General Assembly. UNESCO was asked to provide text for the Commission on Human Rights. During the discussions in the Commission in 1951 and 1952, the inclusion of a provision on authors’ rights was opposed by States such as the USA, referring to UNESCO’s general work, and concluding that “…it would be both uneccesary and confusing to introduce 28 This concern was also expressed by the United States (ibid, p. 621): “…the amendments submitted by the French, Cuban and Mexican delegation […] would be out of place in the declaration, more especially since they dealt with a specific aspect of the rights of property already covered by article 15 [later to become article 17].” 29 Ecuador, ibid, p. 618. 30 France, ibid, p. 620. 31 Peru, ibid, p. 619. 32 The Netherlands, ibid, p. 630. 33 Australia, ibid, p. 630. 34 Chile, ibid, p. 632.
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a provision on patents and copyrights in the covenant.”35 Other common law countries were also restrictive, based on the need to balance between private and public interests.36 These concerns were not shared by civil law countries like France,37 where the moral dimension of the authors’ rights had been crucial since the French legislation recognized the rights of the inventor in 1791. There was, however, no paragraph on authors’ rights in the draft that was sent to the General Assembly.38 When the negotiations on Article 15 started in the Third Committee of the General Assembly in 1957, UNESCO made an intervention, stating: “…the Article differed considerably from the two preceeding Articles [Article 13 and 14 on the right to education]. [Article 15] dealt with ideas that were still in the process of evolution, both from the legal and philosophical point of view.”39 At the end of the discussion in the Third Committee, the process had not brought much clarity. Uruguay, one of the most active States in the negotiations, acknowledged: “…it was impossible to state specifically what the legal consequences [of including a paragraph on authors rights] would be, but that applied equally to paragraphs 1(a) [right to take part in cultural life] and 1(b) [right to benefit from science].”40 Compared to the Commission on Human Rights, there was a stronger understanding for the need to protect creativity related to artistic and literary work.41 The issue was raised late in the negotiations, after it became evident that the role of the State in relation to cultural and scientific activities was considered substantially different in Warsaw Pact States than in most other States. There was a fear that the Communist world would seriously interfere in the creative activities of the individuals.42 Some delegates warned against inclusion of language similar to that found in the Universal Declaration, and
35 E/CN.4/SR.292 (1952), pp. 8-9. The representative of the United States stated with regard to the Covenant in general: “The [Universal Declaration] consisted of a statement of standards which countries were asked to achieve. […] But […] a covenant was a very different kind of document, since it must be capable of legal enforcement” (E/CN4./SR 206 (1951), p. 12). 36 Australia E/CN.4/SR.292 (1952), p. 14, stated that “…it was inadvisable to provide for the protection of the author without also considering the rights of the community.” 37 France stated: “…the scientist and artist has a moral right to the protection of his work, for example against plagiarism, theft, mutilation and unwarranted use” (E/CN.4/SR.292 (1952), p. 6). 38 The proposal on authors’ rights was rejected with 6 votes against 7, and 4 abstentions (E/ CN.4/SR.294 (1952), p. 4). 39 A/C.3/SR.796 (1957), p. 171, paragraph 4. 40 A/C.3/SR.799 (1957), p. 189, paragraph 20. 41 Uruguay “considered that a reference to authors’ rights was imperative. For lack of protection, literary and scientific work, for example, were frequently pirated by foreign countries who paid no royalties to the authors” (A/C.3/SR.797 (1957), p. 178, paragraph 17). 42 This fear was confirmed by statements from the Russian delegate, which could support national-level support of authors’ rights “on condition that the words ‘in accordance with the laws of the States concerned’ or some similar formula was added” (A/C.3/SR.798 (1957), p 184, paragraph 44).
The Right to Benefit from the Moral and Material Interests of Scientific Production
made a distinction between ‘artistic and literary production’ and ‘scientific production’.43 The concerns mentioned in the Commission on Human Rights, especially by the US delegation, regarding the too complex nature of ‘scientific production’ were not repeated in the General Assembly. It is reasonable to state, therefore, that what was primarily in the minds of the drafters was the protection of the moral interests of the authors of artistic and literary work. The context for the negotiations was one of increasing concerns relating to unwarranted State intervention in creative activities, especially in Warsaw Pact countries. These specific activities were to be protected through the inclusion of authors’ rights in the Covenant.44 An author undertaking extensive research on the drafting of Article 15, notes: “…they seem to have assumed that the goals of Article 15.1(b) were obvious and beyond discussion…[…] They seem to have seen Article 15.1(c), however, as a smaller thing, one that served to protect several different potential interests, according to the views of the drafters.”45 She asserts that the moral interests were most crucial. It is therefore reasonable to conclude that the drafters were aware of the need of particular protection for intellectual workers, particularly in States in which the authorities tend to interfere in the efforts of the intellectual workers. Presently, this challenge is not equally pressing, while other challenges have become more pressing. In particular, the increasing commercialization of intellectual property rights and the high proportion of intellectual property rights granted to commercial entities present challenges for understanding authors’ rights as human rights. The specific category of ‘authors’ rights’ recognized by Article 15.1(c), is based on both the moral rights tradition (civil law, particularly strongly recognized in France) and the more instrumental copyright tradition (common law, as found in the UK and the USA). Hence, both the moral and the material interests are recognized. Whether Article 15.1(c) in itself provides an adequate basis for intellectual property legislation, however, can be questioned. As the other international treaties on both copyrights and authors’ rights as well as industrial property rights are very detailed, Article 15.1(c) has not served as a basis for the adoption of intellectual property legislation. 6.1.2
The Content of Article 15.1(c): Under Which Conditions Are Authors’ Rights Human Rights?
The content of Article 15.1(c) will be analyzed, including whether the rights recognized in Article 15.1(c) might be compatible with the scope of intellectual property legislation. This requires a detailed analysis of the wording of this paragraph in its context. 43 Saudi Arabia stated that “the word ‘production’ […] seemed unsuitable as applied to scientific research, which was usually the result of teamwork” (A/C.3/SR.799 (1957), p 189, paragraph 22). 44 The vote on authors’ rights had 39 in favor, 9 against (Warsaw Pact countries and Iraq) and 24 abstentions, including Japan and USA. The whole Article was adopted by 71 votes to none, with 1 abstention (A/C.3/SR.799 (1957), p. 191). 45 Green 2000 (E/C.12/2000/15), p. 13.
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Benefit from the protection: An interesting question arising from this initial part of the provision is if there are other methods to benefit than by being granted intellectual property protection. Several ways of providing benefits are possible, including user fees, public grants or any privileged market position. The term ‘protection’, cannot be considered to be identical to intellectual property protection, as Article 15.1(c) emphasizes the protection of the interests of the author (see below). Some form of protection against exploitation of one’s creative efforts and resulting production must be provided. The wording of the Covenant is different from the wording of the Universal Declaration of Human Rights (‘right to benefit from the protection’ vs. ‘right to the protection’).46 The former emphasizes ‘benefit’, while the latter emphasizes ‘protection’ as the only way in which the authors can be ensured of their moral and material interests. In practice, however, the different wording of the two provisions does not imply that their scopes differ. Under both provisions, protection can be ensured either by applying standard intellectual property legislation or by protection through statements of regognition, financial rewards or exclusive marketing. Therefore, it can be said that the primary right under Article 15.1(c) is to enjoy the benefits, not to be granted protection through some form of exclusive, time-limited commercial monopoly.47 Moral and material interests: It cannot be stated that the insertion of ‘moral’ before ‘material’ implies that the former is more important than the latter. Of crucial importance, however, is the double dimension of recognition of one’s authorship or inventorship (moral interests), as well as some kind of reward (material interests). There are strong moral interests associated with any creations of the human mind, as these creations are expressions of the creator’s personality.48 Moral interests are related to the actual recognition of one being the author of a new and distinct work requiring certain intellectual skills. A basic moral interest is that one’s intellectual work shall not be exploited by others. Moreover, it implies that one shall be publicly recognized as the author of a specific work. The material interests follow from the recognition of authorship. Material interests can be either any forms of monetary public reward, incomes resulting from the sale or licensing of one’s work, or actual marketing and selling based on subsequent manufacturing. The term ‘interests’ applies to the efforts the author has made. His interests are a reflection of his efforts, and the term ‘interest’ must therefore be considered to be a relative concept. If a producer of any scientific, literary or artistic production has spent little time, energy, creativity and effort, it must be presumed that the interests are weak. 46 Article 27.2 of the Universal Declaration reads:“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” 47 Buck 1994, p. 242, concludes regarding Article 15.1(c): ”Im Sozialpakt hat der ’Urheber’ nicht ein Recht auf Schutz, sondern lediglich das Recht auf Nutzniessung. Daraus folgt eine erhebliche Dispositionsmöglichkeit der Staaten. Der Begriff ‘to benefit’ könnte damit zum Ausdruck bringen, dass die Staaten nicht verpflichtet sind, dem ‘Urheber’ ein Ausschliesslichkeitsrecht zuzugestehen, sondern […] Vergütung…” 48 See Chapter 2.3.4 on ‘expression of the self ’.
The Right to Benefit from the Moral and Material Interests of Scientific Production
His interests are stronger if he has invested considerably of his resources and creativity in the production. In standard intellectual property law, the terms and duration of protection are given. In the period of protection, it is for the holder of the recognized intellectual property to ensure his interests through enforcement. The protection of the interests of the author must be presumed to be secured through the protection of the production of the author. While a clear distinction between these two dimensions of protection might be difficult to draw, one example to illustrate this distintion is when a person’s well-being, or even survival, is dependent upon his possibilities to benefit from his authorship or inventorship. In such situations, protection of the production of an author of artistic or scientific work is of crucial importance. Resulting from any scientific, literary or artistic production: As stated above, the listing of the fields of activities cannot per se be used to indicate that the former has a higher priority than the latter.49 It must be asked whether the phrase ‘literary and artistic’ refers primarily to copyrights, while the term ‘scientific’ refers primarily to patent rights.50 More specfically, it must be asked whether the terms applied in Article 15.1(c) of the Covenant primarily relate to authors producing works eligible for copyright protection.51 It is not unproblematic to state that ‘scientific production’ primarily relates to production eligible for patent protection. This becomes clear if one considers the American Declaration of the Rights and Duties of Man, recognizing the “…right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.”52 This distinction between ‘inventions’ and ‘works’ is not repeated in the relevant paragraph of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights. The American Declaration is therefore the only international human rights document which explicitly refers to the protection of inventors per se. The three other documents which recognize the human rights of ‘intellectual workers’ (American Additional Protocol, Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights) refer only to the more general term, ‘scientific production of which he is the author’.53
49 Observe also that the draft general comment on Article 15.1(c) applies the terms ‘creators’ and ‘authors and inventors’ interchangeably. 50 Other categories of production can also be protected, such as industrial designs or trademarks. 51 Buck 1994, p. 221 says: ”Was die Bereiche der literarischen und künsterischen Produktion anbelagt, so stehen sie in keinem unmittelbaren Zusammenhang mit dem gewerblichen Rechtsschutz.” 52 American Declaration of the Rights and Duties of Man, Article 13 (emphasis added). 53 In the drafting of the Universal Declaration, the term ‘any invention’ was proposed in document A/C.3/360 of 20 November 1948. It was not included in document A/C.3/361 of 22 November 1948, which was included as Article 25.2 and subsequently adopted as Article 27.2.
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Another interesting observation is found in Article 2(1) of the Berne Convention for the Protection of Literary and Artistic Works, as revised in 1971. This paragraph reads (extracts): The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain…
This reference to ‘literary, scientific and artistic’ in a copyright treaty could be seen as an indication that the term ‘scientific’ in Article 15.1(c) of the Covenant is not necessarily relating exclusively to industrial works, but also to literary and artistic works. The wording of the relevant provisions of the American Declaration and the Berne Convention, however, does not exclude that the term ‘scientific production’ in the Covenant is to be understood as primarily referring to inventive and industrial works, despite the absence of the term ‘invention’. When the term ‘scientific production’ is applied in the Covenant, this can be considered to be a wider term than the term ‘scientific works’ as is applied in the American Declaration.54 The German ILA Chapter’s Draft Declaration on “Existing and Evolving Principles and Rules on Freedom of Knowledge, International Protection of Intellectual Property and Transfer of Achievements of Science and Technology”55 distinguished between two basic categories of intellectual property rights. One the one hand, there are intellectual property rights which have their specific content close to human dignity, such as copyrights. On the other hand are industrial property rights, comprising patent, utility models, know-how, plant breeders’ rights, trademarks, designs and others,56 falling outside the scope of human rights protection. While the distinction between rights, based on whether they have a content close to human dignity is of great interest, it is incorrect to make a categorical distinction between rights resulting from artistic and literary activities, on the one hand, and rights resulting from scientific activities, on the other, saying that the latter falls outside the scope of human rights protection. A more appropriate way of distinguishing between which rights fall within or outside the sphere of human rights is to ask who is the author, and to which extent this author is in need of human rights protection. It therefore seems reasonable that scientific production, eligible for industrial property protection, cannot categorically be excluded from the scope of Article 15.1(c) of the Covenant. The Covenant seeks, in Article 15.1(c), to protect the rights of intellectual workers, regardless 54 Buck 1994, p. 222. 55 See Oppermann 1997, pp. 452-457. The draft Declaration states in paragraph b)cc) of the preamble: “The texts [UDHR/ICESCR], however, do not refer to the protection of industrial property” (Oppermann 1997, p. 455, emphasis added). For an alternative position, see Walker 2001, pp. 297-298, who, during his research for the Office of the High Commissioner for Human Rights, found that patents and copyrights were treated equally by the drafters. Moreover, see the head of the French delegation who stated (Cassin 1960, p. 225) that when only the term ‘author’ was used in the Universal Declaration, and not the term ‘inventor’, the intention was not to exclude inventors from the scope of Article 27.2. 56 Ibid, p. 455, (paragraph b) cc) in the preamble to the draft Declaration).
The Right to Benefit from the Moral and Material Interests of Scientific Production
of which category their production falls into. There are, however, certain conditions determining when the protection of the production of intellectual workers is legitimately understood as a human right. Protection primarily relates to production. It cannot be excluded, however, that ‘production’ also includes any marks or brands. To obtain a trademark or other indications of origin (hereafter: ‘indications’) could be important for ensuring the moral and material interests of the scientific author. Article 15.1(c) can be read as to imply a negative right, protecting against unjustified exploitation by others of one’s production. Such indications might fall within the scope of Article 15.1(c) if the specific indication is made through a creative production and the person-production link is direct.57 The emphasis on ‘production’ in interesting. Does production refer to ‘production of the mind’ or must there be a ‘tangible product’? In standard national patent law, there is no requirement that the invention has actually been produced or tested by the applicant; it is sufficient that the invention is described in a sufficiently clear way “…for the invention to be carried out by a person skilled in the art…”58 The phrase ‘resulting from any production’ in Article 15.1(c) must be understood that something tangible actually has been created by using one’s mind. One’s interests must relate to the creative process of the mind as expressed in a tangible object. Accordingly, to enjoy protection in accordance with Article 15.1(c), the author must actually have undertaken some kind of production, but this does not have to be any industrial or ‘mass’ production. Hence, the term ‘production’ is the process of using one’s mind to write a book or construct a new an inventive product. This must be distinguised from the subsequent manufacturing of the book or product. This part of the paragraph is the most complex. It is therefore necessary to see whether the travaux préparatoires confirm these findings. Based on the discussion which took place in connection with the inclusion of Article 27.2 of the Universal Declaration of Human Rights and Article 15.1(c) of the Covenant, it seems clear that it was intended to cover authors’ rights primarily in relation to artistic and literary production.59 Actually, the term ‘patent’ was used infrequently in the negotiation on the Universal Declaration60 and Covenant.61 Moreover, there was significant opposition to the inclusion of Article 27.2 in the Universal Declaration.62 There were no attempts, however, of distinguishing 57 58 59 60 61
Buck 1994, p. 227. See also General Comment No. 17 (E/C.12/GC/17), paragraphs 12-14. TRIPS Article 29.1. Green 2000. A/C.3 (1948), E/800, p. 632 (Chile). A/C.3/SR.798 (1957), p. 184, paragraph 44 (USSR), saying that “copyrights and patents” are not appropriate for inclusion. On the other hand, there were specific references to ‘artists and writers’ when talking about authors (Federation of Malay (A/C.3/SR.798 (1957), pp. 184-185, paragraph 47). Furthermore, the term ‘copyright’ is used exclusively by several delegations, including in the first reference to the issue by Uruguay (A/C.3/SR.797 (1957), p. 178, paragraph 17) and by Czechoslovakia (A/C.3/SR.799 (1957), p. 188, paragraph 14). 62 The most principled discussion on the nature of authors’ rights took place in the context of the Universal Declaration; when the Covenant was drafted, the discussion was more politicized. Article 27.2 of the Universal Declaration was adopted by 18 votes to 13, with 10
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between literary and artistic production, on the one hand, and scientific production, on the other. Therefore, it is found for the purpose of this study that the term ‘intellectual work’ must be understood to refer also to scientific activities.63 It is not justified to conclude that any production resulting from the creative activity of a scientist or inventor, relating to industrial property rights, can categorically be defined outside of the human rights realm. The more frequent reference to ‘copyrights’ than to ‘patents’ in the negotiations, should not be interpreted to indicate that the latter falls outside the subject matter of the Universal Declaration. Of which he is the author: Most patents granted in accordance with standard patent legislation are granted to private companies. The percentage of patents granted to individuals are approximately 20 per cent in many constituencies.64 On the other hand, Article 15.1(c) secures the interests of the individual. The term ‘everyone’ in Article 15.1 refers to individuals, not corporations, and corporate entities cannot be expected to enjoy protection under Article 15.1(c).65 The last part of the provision causes less problems if it is applied on literary and artistic production, where the individual or the publisher more commonly is the holder of the right. In conclusion, the scope of Article 15.1(c) is narrower than standard intellectual property legislation, hence several activities resulting in intellectual property rights will not fall within the scope of Article 15.1(c). At the same time, Article 15.1(c) protects the moral interests of authors, which makes this paragraph wider than most categories of intellectual property, as the moral dimension is explicitly included only in copyright treaties.66
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abstentions (A/C.3, Records of the General Assembly (1948): Item 79: Draft international declaration of human rights (E/800), p. 635). Among the Latin American countries there was overwhelming support (11 for – 2 against – no abstentions). Among the Western countries, there was a majority against (5-7-1). Among the communist countries (including nonaligned Yugoslavia) there was a majority of abstentions (1-0-5). Among the Asian countries there were as many votes against as there were abstentions (1-4-4). Observe, however, that there are certain important differences between copyrights and patent rights. Relevant arguments include the following: the scope of exclusive rights, the duration of rights, and the stronger moral dimension involved in copyrights. In the USA, the number of privately held patents is said to be 20 per cent in 1998, decreasing from 24 per cent in 1985; see National Science Foundations 2000, Chapter 7. See the two decisions by the European Commission for Human Rights, presented in a footnote in Chapter 5.1.4, in which it was found that a patent falls within the scope of Article 1 of Protocol 1 of the European Convention on Human Rights and Fundamental Freedoms, recognizing the right to property. The protection against unfair competition in Article 10.2bis of the Paris Convention, which is included in two intellectual property categories of TRIPS (geographical indications (Article 22.2(b); undisclosed information (Article 39.1)) is also relating to material, and not moral interests. See Peifer 1996 for an analysis of the ignorance of the moral dimensions of intellectual property rights resulting from the adoption of TRIPS, as TRIPS regulates only the material, trade-related dimension of intellectual property rights. He concludes on p. 133: “A
The Right to Benefit from the Moral and Material Interests of Scientific Production
The core content in Article 15.1(c) is that any author shall be able to enjoy the right to the protection of his interests resulting from this person’s creative activities. The enjoyment of such rights might be based on specific measures and decisions by the State, within or outside of standard intellectual property legislation. As noted, however, in Chapter 6.1.1. above that the Committee on Economic, Social and Cultural Rights finds that “…Article 15 of the Covenant does not necessarily coincide with what is termed intellectual property rights…”,67 the same Committee asserts in the Guidelines for State reporting,68 issued ten years earlier: Please describe the legislative and other measures taken to realize the rights for everyone to benefit from the protection of the moral and material interests resulting from any any scientific, literary and artistic work of which he is the author. In particular, supply information on the practical measures aimed at the full implementation of this right, including provisions of the necessary conditions for scientific, literary and artistic activities, and the protection of intellectual property rights resulting from such activities. What difficulties have affected the realization of this right?69
According to this paragraph of the Guidelines, the Committee is stating that Article 15.1(c) can be implemented by ‘providing necessary conditions’ or by adoption of intellectual property legislation.70 In the Guidelines, there is no problematization of the different scope of the two. This might explain why many still believe that the method of implementing Article 15.1(c) is through intellectual property legislation,71 and hence that intellectual property rights are human rights.
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great danger lies in the trade related approach of the [TRIPS] Agreement. […] …TRIPS leaves the impression that IPR are purely economic rights.” E/C.12/2001/15, Statement on Article 15.1 (c), paragraph 6. Statements are political messages, and must be considered to be rather weak – at least until such interpretations have also been applied in the examination of State reports. The Guidelines were adopted as E/1991/23, pp. 88-100; reprinted in Eide et al. (eds.) 2001, Annex 1. Ibid, Article 15, paragraph 3. The process of drafting a General Comment on Article 15.1(c) has led to increased awareness of the difference between the ‘protection of the moral and material interests resulting from any scientific, literary or artistic production’ as found in the Covenant and standard intellectual property rights. The Committee’s attention to Article 15.1(c) has been that of being informed about national legislation relating to intellectual property rights, with little substantive questioning. Two examples of State reports which did not result in any concerns or recommendations from the Committee are those submitted by Germany and Sweden. Germany stated in its fourth periodic report (E/C.12/4/Add.3 paragraph 228): “Germany has continued to support harmonization efforts within the European Union […] copyright applicable to satellite broadcasting and cable retransmission, and […] the legal protection of databases.” Sweden stated in its fourth periodic report (E/C.12/4/Add.2, paragraph 313): “on 1 July 1994, remedies against infringements of intellectual property rights were strengthened by the inclusion in a number of instruments, including the Copyright Act…”
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6.1.3
Understaning Article 15.1(c) based on the Three Levels of State Obligations
In order to identify the precise scope of this provision, the content of the obligations imposed by Article 15.1(c) will be examined, by applying the three levels of State obligations as well as the obligations of conduct and the obligations of result, as introduced in Chapter 4.2.1. The emphasis is on scientific activities and scientific production. Obligations to respect: The central element in an obligation to respect is to refrain from interfering in the exercise of the rights. Authors’ rights are different from other rights as the exercise of these rights, in most situations, depends on a positive recognition by a public organ. Recognition without a formal decision, however, might also constitute protection on the level of respect. Moreover, it should also be acknowledged that the respect of authors’ rights are related to Article 15.3 of the Covenant. This paragraph, recognizing ‘respect for the freedom indispensable for scientific research and creative activity’ implies that the State should not interfere, neither in the research as such nor in the activities which facilitate the research. There are some conditions placed on the enjoyment of these rights. First, the enjoyment of authors’ rights must be balanced against the other rights in the Covenant.72 This is particularly relevant to observe with regard to authors’ rights, as these rights are available to few – as not everyone can be presumed to be able to produce something qualifying for authors’ rights – and should not impede on the realization of other rights.73 Second, can any general guidance be given to identify appropriate actions in situations under which an author benefits materially, implying substantive transfer of monetary resources? The wording of the Covenant, except from what is said in Article 7(a)(i) on the right to ‘fair wages and equal remuneration for work of equal value’, does not regulate such situations. Third, in addition to the general principle of balancing identified above, there are also other arguments for the justification of certain restrictions in the enjoyments of au72 See paragraph 35 of General Comment No. 17, where States are asked to ensure that their “…legal and other regimes [...] constitute no impediment to their ability to comply with their core obligations in relation to food…” Moreover, the Sub-Commission indicates that Article 15.1(c) of the Covenant might be limited subject to public interest, but highlights also specific human rights. See Sub-Commission 2000a, paragraph 2 (health and food) and Sub-Commission 2001a, paragraph 12 (food, education and adequate housing). It must be considered a mistake that health was ignored in 2001a. In paragraph 12 of 2001a, the Special Rapporteurs on food, health and adequate housing are encouraged to ‘include in their reports a review of the implications of the TRIPS Agreement for the realization of the rights falling within their mandates’. 73 As an example, the WTO secretariat 2000, p. 4, states explicitly that “…tensions inherent between subparagraphs (a) and (b) on the one hand, and subparagraph (c) of Article 15.1 of the ICESCR on the other hand, are those that underlie also the considerations of balance in the IPR system.”
The Right to Benefit from the Moral and Material Interests of Scientific Production
thors’ rights. First, if authors’ rights are addressed in the specific context of intellectual property rights, there is a widely shared view that intellectual property can be seen as tools by which higher societal objectives can be obtained.74 Second, one can ask whether the ‘property dimension’ of authors’ rights implies that the enjoyment of this right can be subject to certain limitations.75 Third, human rights which relate directly to human dignity and survival must be said to take precedence over those human rights which do not have the same relationship to human dignity and survival. Fourth, the State must identify how those most marginalized and vulnerable are affected, and devote its resources towards removing all obstacles for the effective enjoyment of human rights. Of these arguments, the balance of the rights is the most relevant and should be the easiest to apply. Moreover, the dignity and survival of human beings, particularly the most vulnerable and marginalized, must obviously be given weight, based on the object and purpose of human rights treaties. Therefore, while the State shall, under normal circumstances, refrain from interfering in the exercise of the human rights of the author, there might be situations where 74 Marks 2003, pp. 296-297, argues that Article 15.1(c) (intellectual property) and 15.3 (acedemic freedom) are ‘supporting rights’. See also IPR Commission 2002, p. 6; see also Maskus and Reichman 2004, p. 308. 75 Weeramantry 1990, p. 170, observes that the social aspects of human rights has a prevalence in developing countries, while property rights have a stronger bearing in industrialized countries. The particularities of intellectual property rights are not considered specifically in this section of the study; see also Sub-Commission 2000a, paragraph 1, and 2001a, preambular paragraph 4, both reading: “…the right to protection […] is a human right, subject to limitations in the public interest.” The property dimension of patent rights has been addressed in the context of human rights only in the European Human Rights system, based on Article 1 of Protocol 1 (right to enjoy property). As this book analyzes Article 15.1(c) of the Covenant, which has no property dimension, little attention will be devoted to these rulings, but they are of general relevance. In a dispute regarding the granting of a compulsory license (Smith Kline and French Laboratories v. the Netherlands 1990, pp. 70-81, particularly pp. 79-80), the Commission found that inasmuch as the Dutch Patent Act considers patents as personal property “…a patent accrodingly falls within the scope of the term “possessions” in Article 1 of Protocol No. 1.” Moreover, the Commission asked as to whether control of the use of property that the compulsory license represented, was “…lawful, in accordance with the general interest and pursues a legitimate aim in a proportionate manner.” The Commission concluded that the compulsory license pursued a legitimate aim of encouraging technological and economic development, and that the part of the application referring to Article 1 of Protocol 1 was “…manifestly illfounded within the meaning of Article 27 para. 2 of the Convention.” The case was solved and was not brought before the European Court of Human Rights. In another case (British American Tobacco Ltd. v. the Netherlands 1995), the European Court of Human Rights declined to give an opinion on whether a patent application constituted a possession within the meaning of Article 1 of Protocol no. 1. The Commission had already made a distinction between a patent application on the one hand, and a valid patent, on the other, and the Court summarized the findings of the Commission by stating in paragraph 73 that “…the company was denied a protected intellectual property right but was not deprived of its existing property.”
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established principles of human rights might justify such interference. Such interference will be justified as being necessary for the full realization of the recognized human rights, in accordance with Article 2.1 of the Covenant. The issue of interdependence, and the identification of these principles will be returned to in Chapter 6.3 below. Obligations to protect: Under obligations to protect, the State shall protect authors against infringements by third parties. This implies that the State provides effective and affordable mechanisms to enforce these rights. This obligation hence indicates an obligation of conduct. The States are not obligated on their own initiative to ensure the enforcement of these rights of authors, but must ensure that remedies are available.76 These aspects of protection are uncontroversial. Whether there is an obligation to also protect those farmers and members of indigenous peoples who have been involved in producing new seeds, which are not eligible for standard intellectual property protection,77 is a much more controversial issue. In the context of the obligation to protect, we will analyze whether there is an obligation to ensure protection of the moral and material interests of authors belonging to indigenous peoples or living in local communities. Protection against misappropriation by third parties from outside these communities has been an increasing concern.78 There is no reason to doubt that in all communities there might be persons who hold intellectual property. Some intellectual property, however, is more acknowledged in standard intellectual property legislation. In the analysis below, the emphasis is on intellectual property which is not part of the public domain. Moreover, it must be proven that members of the indigenous peoples or local communities are actually the authors of the literary, artistic or scientific production. These are requirements for the application of Article 15.1(c). We shall now address the weak protection of the intellectual property of indigenous peoples and local communities. If the intellectual property is not given protection through exclusive rights in accordance with existing legislation, the holders of such intellectual property have a strong interest in avoiding abuse by others of their intellectual property. There are two different approaches toward protecting the rights of intellectual property holders: “Positive protection entails the active assertion of IP rights in protected 76 On this flexibility in TRIPS, see Pires de Carvalho 2005, p. 66. 77 The present author agrees with Pires de Carvalho 2005, p. 242 that breeders are included in the category of ‘authors and inventors’. See also ITPGRFA paragraphs 13.2(d)(ii) and 13.3, both of which refer to ‘small farmers’ and the latter also to those “…who conserve and sustainably utilize plant genetic resources for food and agriculture.” A reasonable understanding of ‘utilize’ must be that this term includes activities such as traditional breeding, development and conservation; see also ITPGRFA paragraphs 9.1 and 13.4. 78 See WIPO 2005a, Annex, p. 12, where protection against misappropriation is outlined in Article 1 among the substantive provisions in a draft ‘legal instrument’. In the commentary (ibid, p. 14) it is said to be “…an international consensus that traditional knowledge should not be misappropriated, and that some form of protection is required to achieve this.” See also the US position in the TRIPS Council: IP/C/W/434.
The Right to Benefit from the Moral and Material Interests of Scientific Production
subject matter, with a view to excluding others from making specific forms of use of the protected material. Defensive protection does not entail the assertion of IP rights, but rather aims at preventing third parties from claiming rights in misappropriated subject matter.”79 Do ‘positive protection’ and ‘defensive protection’ represent human rights obligations on the level of the obligation to protect? The analysis is based on indigenous peoples and local communities, where intellectual property has a strong cultural dimension,80 and where the food plants are of great importance both for nutritional and sacred purposes.81 As a minimum, the protection of moral interests relating to this intellectual property must imply that the resources to which this knowledge is related should not be appropriated by others without the informed consent of the informal innovator. Such recognition of the relationship between the breeder, the knowledge and the resources must be understood to contribute to the moral interests of the breeder, as a recognized ‘author’ within the meaning of the terms of Article 15.1(c). The ‘defensive protection’ must therefore be considered as an obligation on the level of protection. The ‘positive protection’ requires more, including the adoption of legislation, the establishment of offices with specifically trained staff as well as ways to disseminate information about which rights that have been granted in accordance with the legislation. Can this be considered as an obligation on the level of protection? Intellectual property rights for traditional knowledge are actually recognized in some national legislation,82 but not yet in international treaties.83 Based on the wording of Article 15 of the Covenant, as well as the lack of specific international treaties, it cannot be said to be an obligation on the State parties of the Covenant to positively recognize intellectual property rights relating to traditional knowledge. There is, however, a
79 WIPO 2002c, paragraph 13. 80 There is a tendency to address ‘cultural and intellectual property’ as a generic term, but mostly in the artistic and literary field; see: <www.unesco.org/culture/copyright/folklore/ html_eng/symposium.shtml>. 81 See Greaves (ed.) 1994. 82 See the overview of national legislation and traditional knowledge in WIPO 2002a. 83 The CBD Article 8(j) addresses such knowledge, without using the term ‘traditional knowledge’. The Article calls upon the States to ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity’, and does not require such knowledge to be ‘recognized’; see also Article 10(c), 17.1 and 18.4. Halewood 1999, pp. 977-984, says that the terms ‘knowledge’ and ‘innovation’ point in the direction of a type of intellectual property protection, but the rest of the Convention does not set out the scope of these rights. Furthermore, ILO Convention No. 169, concerning Indigenous and Tribal Peoples in Independent Countries, refers in Article 23.2 to ‘the traditional technologies and cultural characteristics of these peoples’; see also Agenda 21 Chapter 26.4(b) and UN Declaration on Indigenous Peoples Article 29. As to whether the work within WIPO on a ‘legal instrument’ relating to traditional knowledge (see WIPO 2005) might result in a treaty is still uncertain.
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relatively rapid development in establishing international norms in the field of positive recognition for traditional knowledge.84 While an international treaty may eventually be adopted,85 its content will determine whether Article 15 of the Covenant is to be interpreted in light of its provisions.86 From a de lege ferenda perspective, therefore, the active recognition of traditional knowledge can evolve into a norm under human rights law, as a result of the recognition of positive protection in other forums. The Committee cannot presently be prevented from addressing the balance in the enjoyment of human rights between traditional breeders (indigenous peoples and farmers in local communities), on the one hand, and the rights of the modern breeders (private companies and research institutes), on the other, when examining State reports. Moreover, the appropriateness of different intellectual property rights, including ‘undisclosed information’,87 should be further studied with regard to such traditional knowledge. Therefore, under the obligation to ‘protect’, there is at least an obligation to prevent misappropriation of literary, artistic and scientific production of indigenous peoples and local communities, done by third parties. If members of indigenous peoples or local communities are denied opportunities to prevent infringements of these rights, the State is not sufficiently respecting the rights of the scientific author or inventor. There is no obligation under human rights law, however, to take measures for the active recogni84 Inter-Governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, established in accordance with WIPO General Assembly Report WO/GA/26/6 (WIPO 2000) and confirmed in WO/GA/30/8 (WIPO 2003d), paragraph 93 and WIPO 2005b, paragraph 202; see also Cotter and Panizzon 2004. See also the Doha Ministerial Declaration paragraph 19: “We instruct the Council for TRIPS […] to examine, inter alia, the relationship between the TRIPS Agreement and […] the protection of traditional knowledge…” Developing country members favor such discussions in all relevant forums, including the TRIPS Council (WTO documents IP/C/W/370, paragraphs 9-11, pp. 4-5 and IP/C/W/404, p. 5). 85 Isaac and Kerr 2004, p. 47, identifies three ‘costs’ of extending intellectual property protection to traditional knowledge: first the amendment of laws and treaties to provide for protection of traditional knowledge; second, the definition of what is protectable becomes wider; third, protection of traditional knowledge does not provide a guarantee that further innovation will take place. Against these arguments can be presented three counter-arguments: first, treaties and legislations in the field of intellectual property are constantly revised, and a system for the protection of traditional knowledge could facilitate the spread of knowledge (O’Connor 2003, p. 698); second, discoveries could be patentable, provided that the subject matter fulfills the three substantive requirements; and third, there is no obligation to work a patent, and therefore the conditions established by Isaac and Kerr that there should be no protection “…without the promise of additional innovations” (2004, p. 48) simply is not right. 86 The drafts of the ‘legal instrument’ (see WIPO 2005) do not refer to human rights whatsoever. 87 The ‘right to keep their cultural heritage secret whenever they so wish’ was mentioned in the Draft General Comment on Article 15.1(c) as one means to protect traditional knowledge, but did not appear in the final version.
The Right to Benefit from the Moral and Material Interests of Scientific Production
tion of the right derived from this production, nor for the moral and material interests associated with it. Obligations to fulfill: These obligations imply that the State must both facilitate and – if necessary – provide, so that the human rights can be adequately enjoyed. As found in Chapter 6.1.2 above, protection by intellectual property rights is one means, but not the only means by which the rights recognized by Article 15.1(c) can be enjoyed. It is relevant to distinguish in the analysis below between the realization of authors’ rights by means of intellectual property protection and by other means. Initially, it must be observed that Article 15.2 of the Covenant calls upon States to take steps for realizing the rights of Article 15.1,88 including the “…conservation, development and diffusion of science and culture.” Moreover, Article 15.4 asserts that the State parties “…recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields”. The general wording of these two paragraphs implies that it is difficult to determine which specific obligations they contain.89 These two paragraphs, however, must at least be understood to imply that when taking measures, both individually and through international cooperation, for the realization of the rights recognized in Article 15.1, the State should observe if the objectives of promoting science and culture are met, or if they are adversely affected. It is difficult to apply these two paragraphs literally in order to identify the obligations on the level of fulfill, but emphasize that they provide a basis upon which the rights of Article 15.1 should be evaluated. On the level of fulfill (facilitate) within the intellectual property system, the State should, as a minimum, assess the situation regarding who is able to benefit from intellectual property protection mechanisms, and identify appropriate measures to address this situation. This could include, inter alia, ensuring that existing knowledge and scientific production is registered in databases with general or restricted access,90 so that this registered knowledge and associated genetic resources cannot be subject to intellectual property protection. Moreover, the State can seek to make information about intellectual property protection available, as well as facilitate broad participation in the drafting of relevant treaties and legislation, so that not only the interests of traditional users of the intellectual property system dominate. On the level of fulfill (provide), the specific obligations are more difficult to identify. As a minimum, the State must ensure that nobody who is entitled to enjoy rights under intellectual property rights legislation, is excluded from doing so, both when applying for and enforcing such rights. This implies that both the administrative and judicial 88 In actuality Article 15.2 applies the term ’this right’. 89 See resolutions 2000/7 (Sub-Commission 2000a) and 2001/21 (Sub-Commission 2001a), common paragraph 7, which reads: “Calls upon State parties to the International Covenant on Economic, Social and Cultural Rights to fulfill the duty under article 1, paragraph 1, article 11, paragraph 2 and article 15, paragraph 4, to cooperate internationally in order to realize the legal obligations under the Covenant, including in the context of international intellectual property regimes.” 90 See WIPO 2003e.
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remedies must be available for these purposes, at affordable costs for the right holders. There could also be situations where the State, or specific public institutions, find it necessary to bring a case against an alleged infringer, in view of the fact that people who are disadvantaged as a result of the infringement are not sufficiently unified or able to cover costs involved in a court proceeding.91 When considering appropriate means outside of the intellectual property system, the obligation of fulfill (facilitate) implies that the State shall at least ensure that conditions are appropriate for the continuation of creative and scientific activity. Hence, the right of Article 15.3 (freedom for scientific research and creative activity) is imposing obligations upon the State. These obligations also can imply that burdensome registration and application for various forms of moral recognition and material reward must be avoided. Finally, what are the obligations of fulfill (provide) in relation to authors’ rights outside of the intellectual property system? There may be situations where the material interests of authors under Article 15.1(c), understood in light of an adequate standard of living (Article 11.1), and the right of workers to fair wages and equal remuneration for work of equal value (Article 7(a)(i)) could become relevant. A scientific worker or inventor can experience the insufficient enjoyment of human rights as a result of the disrespect of his scientific efforts. Based on the wording of the Covenant, there is no obligation of benefit sharing92 between the modern breeders who were able to make a marketable product (formal innovators) and the original breeders (informal innovators) who provided the basic knowledge as well as the genetic resources to which this knowledge is applied. The Covenant must, however, be interpreted in light of the relevant rules of international law applicable in the relations between the parties, such as the CBD and the ITPGRFA. Based on these three levels of State obligations, the legal content of Article 15.1(c) becomes clearer. The identification of the obligations, particularly on the level of fulfill, must be based on a very precise understanding of the core content of the right. Then it must be examined what the State must at least do to comply with the requirements of this paragraph, and then what it can do to promote the realization of authors’ right. 6.1.4
Application of Article 15.1(c)
Finally, the practical application and thus the importance of Article 15.1(c) in actually safeguarding the material and moral interests of persons responsible for scientific, literary or artistic production, will be analyzed. Initially, it seems that Article 15.1(c) has not had any impact neither on intellectual property legislation, nor on administrative or court decisions. This is also confirmed by Eide: “It is doubtful that Article 27(2) of
91 Two examples are the US turmeric patent (5,401,504), which was revoked after a complaint by India’s Council of Scientific and Industrial Research (CSIR) and the US enola patent (5,894,079), where a decision on re-examination is still pending; the formal complaint is made by CIAT, not the Mexican government. 92 Benefit-sharing with the original breeders is provided in other treaties, particularly the ITPGRFA.
The Right to Benefit from the Moral and Material Interests of Scientific Production
the UDHR or Article 15(1)(c) of the CESCR have added much to existing international law.”93 There has been an increased awareness devoted to Article 15.1(c) as a consequence of the generally larger interest toward intellectual property rights. The WIPO seminar94 and the Committee’s day of general discussion in 2000,95 have not been able to clarify neither the scope, nor to which extent Article 15.1(c) can be applied, and neither have the two resolutions from the Sub-Commission,96 nor the Statement from the Committee on Economic, Social and Cultural Rights.97 Observe also the study elaborating on the impact of TRIPS on the realization of economic, social and cultural rights.98 General Comment No. 17 stands out by being very comprehensive. It sets out ‘core obligations’ in paragraph 39. These documents represent, to a certain extent, application of Article 15.1(c), but only the latter is an actual interpretation of the provision. The WTO Secretariat has recognized the uncertainty of the scope of Article 15.1(c). They note in a cautious manner on the relationship between TRIPS and Article 15.1(c) of the Covenant:”…it can be argued that the TRIPS Agreement also seeks to give effect to […] Article 15.1 (c)…”99 By stating this cautious, but harmonious approach between the provisions of TRIPS and the provisions of Article 15 of the Covenant, the WTO implicitly invites human rights scholars to analyze the relationship between human rights and the TRIPS Agreement. The previous lack of a clear understanding of the scope and potential application of Article 15.1(c) of the Covenant implies that the Committee rarely sought to identify, inter alia, how the realization of authors’ rights might affect the realization of other rights, including the right to take part in cultural life and enjoy the benefits from scientific progress and its application. As an example, only once has the Committee requested information on intellectual property protection and its impact on the right to food,100 but did not include any recommendations in the concluding observations.101
93 Eide 2001, p. 297. 94 WIPO 1999: Intellectual Property and Human Rights. The report, which is a compilation of the different presentations held, is found as WIPO Publication No. 762(E) 1999. 95 See Chapman 2000, Green 2000, Meyer-Bisch 2000, Wendland 2000 and WTO Secretariat 2000. 96 Sub-Commission 2000a and 2001a. 97 E/C.12/2001/15. 98 Sub-Commission 2001b, Sub-Commission 2001c, Sub-Commission 2001d 99 Sub-Commission 2001b, p. 3; see also Lim 2001 p. 7 – emphasis added. 100 The concerns expressed by the Committee regarding the issuing of plant breeders’ rights on two plant varieties held as designated germplasm by the Future Harvest Centers (see Chapter 5.3.3), by the Australian Plant Breeders Rights Office, are included in the minutes from the 47th meeting of the Committee’s 23rd Session (E/C.12/2000/SR.47). This is the only example of concern expressed with regard to intellectual property protection over agricultural plants. 101 Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, E/C.12/1/Add.50.
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To date, therefore, this new awareness is not reflected in the application of Article 15.1(c) during examination of State reports. Therefore, it cannot be concluded that this increased awareness of the potential conflicts between the recognition of intellectual property rights and the realization of the right to food, has impacted on the regular work of the Committee, but increased attention has been devoted to the right to health.102 The understanding and application of Article 15.1(c) still seem to be in a state of legal uncertainty. The strong distinction in General Comment No. 17 between intellectual property rights under economic law, and authors’ rights as recognized in Article 15.1(c), is expected to clarify the content of Article 15.1(c), implying that unfounded statements such as ‘intellectual property rights are human rights’103 can be avoided. It can therefore be concluded that there has not been any extensive application of Article 15.1(c), neither in the practices of States, nor in the practices of the Committee. 6.2
The Right to Benefit from Scientific Progress and its Applications
We will now analyze Article 15.1(b) which recognizes: …the right of everyone to […] enjoy the benefits of scientific progress and its applications.
It has been chosen to focus on this paragraph as the study in general addresses the relationship between the right to food and patent and plant variety protection, with biotechnology constituting the relevant link between the two. Biotechnology must be considered to fall under the general phrase ‘scientific progress and its applications’. Article 15.1(b) is based on Article 27.1 of the Universal Declaration of Human Rights, which recognizes (extracts): “ the right to […] share in scientific advancement and its benefits.” While the terms differ, the meaning of these elements of the paragraphs is basically similar. The scope of Article 27.1 of the Universal Declaration is wider, however, as it also includes the right to participate in the cultural life of the community. Article 15.1(b) is further strengthened by the other provisions of Article 15 of the Covenant. Terms such as ‘diffusion of science’ (15.2) and ‘international contacts and cooperation in the scientific fields’ (15.4) must both be understood to contribute positively towards the right to benefit from scientific progress and its applications. These provisions will be introduced in the analysis in Chapter 6.2.2 below. In Chapter 6.2.3, there will an analysis of scientific progress or research more generally; it is assumed that the analysis applies equally well to biotechnology.
102 The price effect of intellectual property protection on medicines has been addressed in the ‘concluding observations’ both by the Committee on the Rights of the Child (El Salvador (CRC/C/15/Add.232) and the Committee on Economic, Social and Cultural Rights (Ecuador, (E/C.12/1/Add.100 – paragraph 55). Issues relating to patent protection which are brought up in the examination (see on Denmark: E/C.12/2004/SR.37 paragraph 7) are not necessarily reflected in the concluding observations (E/C.12/1/Add.102). 103 See Pires de Carvalho 2005, p. 242 (footnote 654) and Idris 2004, p. 241; see also Dieng 1999.
The Right to Benefit from the Moral and Material Interests of Scientific Production
6.2.1
The Content of Article 15.1(b)
The right recognized in Article 15.1(b) is particularly interesting as it has a direct relationship to the objectve of improved methods of food production in Article 11.2(a). As stated in Chapter 5.1.5, the obligation to improve methods of production of food by making full use of technical and scientific knowledge104 relates to how the production shall be increased. The right to enjoy the benefits of scientific progress is related to how the direct and indirect results of science are made available to everyone. Both the obligation to make full use of technical and scientific knowledge and the right to enjoy the benefits of scientific progress, express a generally positive view on science and its application, being crucial in the fulfillment of the human rights recognized in the Covenant. Therefore, there is a positive assessment of the contribution of science in the Covenant. The different parts of Article 15.1(b) require an analysis of their wording. Enjoy the benefits of scientific progress: The term ‘benefits’ must be understood as material benefits, which every person should enjoy in everyday life. This scientific progress was expected to be distributed to everyone, if the right conditions were provided. The ‘trickle-down’-effect would provide for both the international and national dissemination of new technology and wealth. This right naturally applies to everyone,105 and there is no requirement that one has actually contributed to this progress. The travaux préparatoires confirm this interpretation. An issue that was brought up in the discussions during the General Assembly related to the terms ‘participate’ and ‘share’. It was generally agreed that participation was more active, but that such participation could not be expected from everyone. The solution was to introduce the phrase ‘and its benefits’ at the end of this paragraph.106 This would make it clear that not everyone could be expected to ‘participate’, but that everyone should have the right to share in the benefits of scientific advancement. Enjoy the benefits of applications of scientific progress: This phrase is best understood when seen in light of Article 27.1 of the Universal Declaration, which addresses the right to share in scientific advancement. Both Article 27.1 of the Universal Declaration and Article 15.1(b) of the Covenant must be understood to imply that not only shall the information about new science be made available, but also applications of this science shall be made available, hence also identifying State obligations beyond merely providing information about scientific progress. Neither the term ‘applications’,107 nor the legal 104 Article 11.2(a) of the Covenant. 105 Observe that the phrase ‘in the community’ is applied in Article 27.1 in the Universal Declaration, but not in the Covenant. Therefore, Article 15.1(a) and (b) of the Covenant, which are based upon Article 27.1, has a wider application. 106 A/C.3, General Assembly Official Records 1948: Draft international declaration of human rights (E/800), item 79, China, p. 627. 107 See Oxford’s Advanced Learner’s Dictionary of Current English 1974, in which ‘application’ is defined, inter alia, as ‘substance used’.
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obligations imposed by Article 15.1(b), however, are clear.108 A reasonable understanding of the term ‘applications’ is ‘practical use’.109 Kloppenburg defines science “…as a process of linking knowledge and application.”110 He also claims: “We cannot understand science without a reference to the commodity.”111 He therefore seems to understand the term ‘applications’ as being similar to ‘commodities’, but this is not the most evident interpretation of the term ‘application’ in the context of science. The State has primarily obligations relating to information. To analyze if there are situations in which the State obligation extends beyond this, we shall make use of the three levels of State obligations, as well as the understanding of obligation of result and obligation of conduct, and the core content of the human rights. 6.2.2
Understanding Article 15.1(b) based on the Three Levels of State Obligations
In order to have a better understanding of the scope and limitations of Article 15.1(b), the approach presented in Chapter 4.2.1 will be utilized, on the three levels of State obligations, namely to respect, protect and fulfill (facilitate and provide). In order to identify the obligations imposed on the right recognized in Article 15.1(b), all relevant interpretative material, including the other paragraphs of Article 15, will be applied. Obligations to respect: Any act by the State party which negatively impacts on the general possibility to enjoy the benefits from scientific progress and its applications, acts contrary to the obligation to respect. The obligation to respect is moreover recognized in Article 15.3, which confirms that States undertake to respect the freedom indispensable for scientific research. An interesting question is whether this implies that the State shall allow science to flourish without any interference. Based on the wording of Article 15.1(b), as confirmed by the travaux préparatoires, science is understood to be disseminated by forces operating outside of the State organs. A document which might be of relevance in order to interpret Article 15.1(b) is the Guidelines on State reporting. Paragraph 2 is on Article 15.1(b). Paragraph 2d) in the Guidelines is particularly relevant on the level of respect, requiring States to
108 The travaux préparatoires of the Universal Declaration and the Covenant do not assist in identifying if there are situations where the State obligations extend beyond simply providing information about the scientific applications, as the debate related to an attempt by the USSR to define a particular purpose of science, which met resistance. The Chinese delegation stated in the context of the Covenant (A/C.3/SR.796, p 173, paragraph 31): “…to restrict their [scientists and scholars’] activities would be to impede progress.” 109 The New Oxford Dictionary of English 2001. 110 Kloppenburg 1988, p 45. 111 Ibid.
The Right to Benefit from the Moral and Material Interests of Scientific Production
…[i]n particular, provide information on […] any restrictions which are placed upon the exercise of this right, with details of the legal provisions prescribing such restrictions.112
This emphasis on restrictions as prescribed by laws is interesting. There are two possible interpretations of this wording. First, by emphasizing the adoption of laws, the Committee seems to hold that the State can only restrict the exercise of this right by legal means, giving less emphasis to other means. Second, the restriction in any exercise of this right is so serious that it must be justified by means of legislation. The first possible interpretation, assuming that other means are not relevant since only ‘legal provisions’ are explicitly mentioned, does not seeem justified. The other possible interpretation seems more plausible. By this interpretation, the Committee states that if there shall be any restrictions of the right recognized in Article 15.1(b), such restrictions must have been subject to conscious considerations before being implemented. In the process leading up to the adoption of a law, such considerations are made possible. In the context of this obligation to respect, reference is made to the findings of a report called ‘South-North trade, intellectual property jurisdictions and freedom to operate in agricultural research on staple crops’,113 analyzing impediments on researchers’ freedom to operate. This study will seek to answer the question whether this report, on freedom to operate in agricultural research, is relevant for identifying obligations on the level of respect. The report concludes: “…agricultural researchers in many developing countries are freer than one might think to make use of innovations protected in industrialized countries.”114 The basis for this argument is that technology that is protected in an industrialized country is not necessarily protected in a developing country, therefore giving an actual access to such new information on scientific progress, through, inter alia, access to relevant journals and registers. Furthermore, the authors say that breeders in the South should more actively make use of technology that is patented in other countries, but not in their own: “Misconception of their freedom to operate is a threat to the effectiveness…”115 Clearly, the authors recognize the limitation on the possibilities to export these products to the countries where these technologies are protected. Nevertheless, “[t]he domestic freedom to operate is generally the dominant IPR issue.”116 The role of the State with regard to this domestic freedom to operate, must be considered to be of interest on the ‘respect’ level. State organs must not prevent this freedom to operate by researchers by interfering in the use of information on inventions or plant varieties which are protected in other States. 112 Paragraph 2 under Article 15 of the Guidelines for State Reporting, reprinted in Eide, et al. (eds.) 2001, Annex 1. 113 Binenbaum et al. 2000: International Food Policy Research Institute IFRPI, Environment and Production Technology Division Discussion Paper No. 70. 114 Pardey et al. 2003, p. 2 (Short version of the longer report). 115 Binenbaum et al. 2000, p. 49. 116 Ibid (emphasis in original).
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Obligation to protect: On the protect level, which is clearly an obligation of conduct, the most reasonable understanding of State obligations is that there must be laws and mechanisms in place to prevent harmful or dangerous use of scientific progress. Several UN documents emphasize this as a relevant concern in the field of human rights.117 The expression ‘scientific progress’,118 already indicates in positive terms that the scientific activity undertaken has already led to ‘progress’. Both the research per se and the uses of scientific products, however, might raise problems in relation to other human rights.119 There are no provisions in Article 15 that explicitly address the obligation to protect in relation to scientific activities. Paragraph 2c) on Article 15 in the Guidelines on State reporting requires States to …[i]n particular, provide information on […] measures taken to prevent the use of scientific and technical progress for purposes which are contrary to the enjoyment of all human rights…120
This paragraph does not use the term ‘protect’. The phrase ‘prevent the use’, however, must be considered to fall under the obligation to ‘protect’. As also States can be involved in ‘use of scientific and technical progress for purposes which are contrary to the enjoyment of all human rights’, however, this paragraph also indicates an obligation on the level of ‘respect’. The concern is to avoid harm which adversely affects the enjoyment of human rights, irrespective of whether private actors or States are involved. In the examination of State reports, no examples of concerns expressed by the Committee regarding the State obligation to protect in relation to the right recognized by Article 15.1(b) have been found. It must be considered that any questioning regarding use contrary to the enjoyment of all human rights would require very detailed knowledge. The right to enjoy the benefits of science must be understood in the context of the whole Article 15, which also recognizes the right to take part in cultural life. It cannot be exluded that certain forms of scientific progress and applications can impact negatively on the participation in cultural life. This study, however does not consider it necessary to give a clear outline of the scope of State obligations on the level of protect under Article 15.1(b).
117 See Vienna Declaration (A/CONF.157/23) paragraph 11 and General Assembly Resolution A/RES/3384 preambular paragraph 2, the latter reading: “…scientific and technological developments […] can […] threaten the human rights and fundamental freedom of the individual.” 118 The term ‘advancement’ is used in the Universal Declaration; not ‘progress’. 119 See the Vienna Declaration of Human Rights (A/CONF.157/23), paragraph 11 (extracts): “…certain advances, notably in the biomedical and life sciences as well as in information technology, may have potentially adverse consequences for the integrity, dignity and human rights of the individual…” 120 Paragraph 2 under Article 15 of the Guidelines for State Reporting, reprinted in Eide, et al. (eds.) 2001, Annex 1.
The Right to Benefit from the Moral and Material Interests of Scientific Production
Obligation to fulfill: Article 15.1(b) is relatively weak in identifying obligations on the ‘fulfill’ level. How can the obligations on the level of fulfill be understood? Also here, it is necessary to identify a core content, which all States must observe, and hence identify the most appropriate measures. The core content of Article 15.1(b) is that at least information on scientific progress and its application shall be made available. Moreover, the State must identify whether there are any factors which prevent the actual exercise of this right. The obligation to fulfill (facilitate) implies that the State must seek to remove these obstacles which prevent the full enjoment of this right. There may be certain steps which are necessary for the right recognized in Article 15.1(b) to be adequately enjoyed, but the paragraph does not identify these, even if read in light of Article 2.1 of the Covenant. Therefore Article 15.2 will be analyzed. This paragraph must be said to operate at the fulfill level. The phrase ‘steps to be taken’, repeats the general provision of Article 2.1. Furthermore, the terms ‘full realization’ and ‘necessary for’ give rather strong directions on the implementation of public policy in the cultural and scientific field. Finally, the provision addresses both ‘the conservation, the development and the diffusion of science and culture’.121 This paragraph does not place strong obligations on the State, and must be said to leave to the State organs a margin of discretion to determine when the measures are ‘necessary’. The Guidelines on State reporting has been applied as interpretative material on both the levels of respect and protect. The Committee identifies in paragraph 2 to Article 15 two other concerns when reporting on Article 15.1(b): …[i]n particular, provide information on […] “a) measures taken to ensure the application of scientific progress for the benefit of everyone, including measures aimed at the preservation of mankind’s natural heritage and at promoting a healthy and pure environment and information on the institutional infrastructure established for that purpose; b) measures taken to promote the diffusion of information on scientific progress.” 122
These two subparagraphs are emphasizing the provision of information. Therefore, on the fulfill (facilitate) level, the State seems able to determine, by a rather wide margin of discretion, how the right recognized in Article 15.1(b) best shall be realized. The fulfill (provide) level will now be examined. While the provision of information on scientific progress is important also at this level, it should be asked whether there are certain products resulting from scientific progress that are crucial in order to realize a recognized right. Among the various rights recognized in the Covenant, the availability of products resulting from scientific progress must be considered crucial in relation to the right to health123 and food. The State has an obligation relating to facilitating the food 121 The term ‘conservation of science’ cannot be considered to be very logical, unless one considers the ‘traditional knowledge’ discussed under the obligation to protect in Chapter 5.1.3. 122 Paragraph 2 under Article 15 of the Guidelines for State reporting, reprinted in Eide, et al. (eds.) 2001, Annex 1. 123 The Mother to Child Transmission case, decided by the South African Constitutional Court (CTT 8/02, 5 July 2002), is probably the most explicit recognition of the obligation of the
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production of small-holders, as they are not able to obtain necessary inputs at market prices. This can involve developing public extension services of seeds and other inputs, as well as the establishment of local seed banks. For those States which have insufficient resources, they must seek to benefit from international assistance and cooperation, in accordance with paragraphs 2.1, 11.1, 11.2 and 15.4. In the general comments, especially No. 14 on the right to health and No. 12 on the right to food, there is a general trend toward provisions of ‘products’, not only ‘information about products’ as a part of the State obligations. Furthermore, General Comment No. 3 on the nature of States’ obligations asserts that a State which does not utilize its own resources, or resources made available through international cooperation, in a situation with consistent threats toward human life because of a epidemic or pandemic, to provide products resulting from scientific progress, such as medicines, seeds or foodstuff, can generally not be said to be acting in conformity with its human rights obligations. 124 There are State obligations on the ‘fulfill’ level. In these situations – where actual access to specific products is of crucial importance for the enjoyment of human rights as the right to food or health – the mere information about relevant scientific progress is not sufficient; products resulting from this scientific progress must also be made available. It is acknowledged that this is an interpretation which goes beyond both the wording of the Covenant itself, as well as the Guidelines for State reporting. Based on the object and purpose of the Covenant, as well as the urgency involved for those who are suffering under lack of access to crucial life-saving goods produced by means of science, these obligations on the State must be recognized. The amount of available resources, however, including resources made available by actively seeking international assistance and cooperation,125 will determine when the State does not act in conformity with its obligations. In concluding the analysis on the three levels of obligations, it is difficult to identify precisely what States are supposed to do in order for everyone to exercise this right. There is therefore a relatively wide margin of discretion. On the levels of protect and fulfill (provide) in times of emergencies, there are stronger obligation, also to actively seek international assistance. 6.2.3
Private Research and State Obligations
The distinction between private and public research was introduced in the analysis of Article 11.2(a) in Chapter 5.1.5. The study will now examine whether the stagnation in publicly-financed research and the gradual withdrawal of the State from agricultural research indicate that the authorities in many States have not complied with their legal obligation in order to contribute to improve methods of production of food by making full use of technical and scientific knowledge. State to provide medicines; see <www.tac.org.za>. 124 General Comment No. 3 1990, paragraph 10 (UN doc. E/1991/23, pp. 83-87). 125 Article 15.4 is weaker than the general obligations in Article 2.1 of the Covenant; see Skogly 2003.
The Right to Benefit from the Moral and Material Interests of Scientific Production
Based on the analysis in Chapter 6.2.2 above, the obligations imposed by Article 15.1(b) are weaker than the obligations imposed by Article 11.2(a). The two work in the same direction, however. Moreover, there is an important distinction between the two, as Article 15.1(b) cannot be interpreted as to differentiate between certain types of scientific progress and to consider the result of privately funded science different from the results of publicly-financed research.126 Knowledge is, in principle, a public good, where nobody shall be excluded, and where one person’s access to the good does not reduce others’ access. This applies to publicly financed research.127 On the other hand, the dissemination of the results of private research can be promoted by patenting. Most agree that one of the advantages of the patent system is that it provides for the disclosure of information that alternatively will be kept secret by the companies. The patent system contributes to enhanced information about new inventions. At the same time, a patent ensures the exclusive right of the inventor (or right holder) to commercialize the invention until the day the patent term expires and the invention falls into the public domain. Moreover, the role of private research in the context of Article 15.1(b) and 11.2(a) must be analyzed based on three areas where one must have precise knowledge. 1) There is a need to have a precise understanding of which type of private research actually results in patents or patent-like protection, such as plant breeders’ rights. 2) There is a need to assess whether patents, in principle, reduce access to public goods (knowledge and genetic resources), and if they serve private interests over public interests. 3) Finally, there is a need to know to which extent the exercise of the patent might lead to control over production of goods or services that can lead to insufficient provision or provision at excessively high prices. These are questions that require substantial empirical evidence to be adequately answered. As this is a legal study, they will not be fully answered, at least not before the analysis of relevant provisions of the TRIPS Agreement is completed in Part III of this study. The relationship between public and private resarsh is particularly interesting in the context of agriculture. An author undertaking an extensive study on the seed industry in the USA, observes the relationship between public and private research, finding that the private sector benefits substantially from public research, and wants to keep the public research only as complementary and not competing with their own efforts.128 He makes an argument that publicly funded actors must seek also to deliver the products, 126 In this context, it is important to notice article 15.3 of the Covenant, stating: The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity. This must be done irrespective of whether the financing of the research is public or private. 127 More and more public institutions, including some Latin American agricultural research centers, and universities – most notably in the USA, as a consequence of the 1980 Bayh-Dole Act (US Patent Act, 35 United States Code Section 200-212), which are obtaining intellectual property protection over the results of the research. 128 Kloppenburg 1988, pp. 13, 44, 195, 241 and 285.
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hence operating as real competitors to the private sector.129 Therefore, the question of who is conducting the research is crucial.130 In this context, the obligations in Article 15.1(b) become even more important to observe. These three questions highlight another question: does a State which has stagnated in its research investment, but at the same time facilitated increased research investments by private actors, act in compliance with the Covenant? This is a difficult question to answer. While the role of the private companies implies that there might be an increased amount of scientific progress, compared with a stituation where the State directs the research, it is also a relevant factor as to whether this research is benefitting those most marginalized and vulnerable, who might be in particular need for special public efforts in order to enjoy their human rights. At the same time, the poor are not of great interest for the private sector, as they are not able to buy the products. The private sector will have limited interests in investing in production in which the rate of return is low. It must be observed that the Committee on Economic, Social and Cultural Rights has said that “…in terms of economic and political systems, the Covenant is neutral…”131 In fact, the Committee asserts that a State can help to realize the rights recognized in the Covenant by a ‘laisser-faire economy’,132 which must be understood that the State will leave at least parts of the research arena to the private sector. A State prioritizing a laisser-faire economic policy must nevertheless have a research policy. As private actors naturally prioritizing certain groups over others, the State must take steps to enable everyone, and not only those with the ability to pay, to exercise the right to enjoy the benefits of scientific progress and its applications. To which extent the State has an obligation to actually pay for the relevant goods, must be determined, inter alia, by the available resources at this State’s disposal.133 It cannot be assumed, however, to be a human rights obligation on the State that new products, into which considerable scientific efforts have been invested, and which might even be subject to some form of intellectual property protection, must be provided for free. In summing up, the State has obligations relating to research which can be met by faciliating the participation of the private sector. At the same time, the State does not act in compliance with paragraphs 15.1(b) and 11.2(a) if it withdraws from research which benefits the poor because it is said that the private private sector is able to deliver the research results more effectively. Hence, in the context of the theme of this book, consistent efforts to increase public agricultural research is of crucial importance.
129 Kloppenburg (ibid, p. 280) finds that the process of “…commodification the seed has been a most effective means…” 130 Dalrymple and Srivastava 1994, p. 196, argue that the private sector is preferable to the public sector in the provision of seeds. 131 General Comment No. 3 (reprinted in Eide et al., 2001, Annex 2) paragraph 8. 132 Ibid. 133 See Eide 2001, p. 296.
The Right to Benefit from the Moral and Material Interests of Scientific Production
6.3
Balancing Approaches between Paragraphs 15.1(b) and 15.1(c)
As shown above, Article 15.1(b) applies to everyone, but it is difficult to determine the exact nature of the corresponding State obligations. The State obligations will be more precisely defined in situations of severe hunger or pandemic, but it is not possible to determine in the abstract the scope of this obligation in less severe circumstances. This is also because much of the scientific progress is achieved by private companies, disseminating the results of their research through the market, and through patent applications and journals. On the other hand, Article 15.1(c) only applies to anyone who is an ‘author’. It is widely held that intellectual property must be perceived as tool for reaching certain social objectives, including realization of economic and social rights.134 At the same time, there is no basis for stating that the rights recognized by Article 15.1(c) should be subordinate to the rights recognized by Article 15.1(b) and 15.1(a). There might be certain situations, however, where the right to enjoy the benefit of scientific progress and it applications, at least when seen in light of the obligations of Article 11 of the Covenant, imply that the access to new scientific products is so crucial that the right of the author to enjoy the moral and material interests of his production, can be limited. The justified ground for limiting human rights will be returned to in Chapter 7.1 below. Does Article 15.1 provide for an appropriate balance between the right of the author to enjoy the benefits of protection of his moral and material interests, and the right of everyone else to enjoy the benefits of scientific progress and its applications? The potential conflicts between Article 15.1(b) and Article 15.1(c) were not subject to much attention during the negotiations. The balance between the two rights in the negotiations of Article 27 of the Universal Declaration was raised, however, by one delegation: “The concept of the protection of intellectual work conflicted to a certain extent with that of freedom of access to all literary, artistic or scientific output.”135 While ‘access’ was a concern in the negotiations, the drafters of the Covenant did not have a very clear understanding of how the balance between Article 15.1(b) and Article 15.1(c) could best be achived. In a compilation of responses on Article 15.1(c) of the Covenant, two positions emphasized that there is no conflict, namely the WTO and the Max Planck Institute for Intellectual Property, Competition and Tax Law. The WTO Secretariat emphasizes that there is a proper balance within Article 15.1 that corresponds to the balance of the intel134 IPR Commission 2002, p. 6. The IPR Commission also states in the same paragraph: “In particular, there are no circumstances in which the most fundamental human rights should be subordinated to the requirements of IP protection.” The IPR Commission states “…we prefer to regard IPRs as instruments of public policy which confer economic privileges on individuals solely for the purpose of contributing to the greater public good. The privilege is therefore a means to an end, and not an end in itself ” (ibid). 135 Chile, A/C.3, Records of the General Assembly (1948): Draft international declaration of human rights (E/800), item 79, p. 632. Chile also noted that authors’ rights were “affecting a special category of persons,” (ibid) and Chile was therefore against its inclusion in the Universal Declaration.
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lectual property rights, and that the TRIPS Agreement seeks to give effect at the multilateral level to Article 15.1(c) of the Covenant.136 The Max Planck Institute is even more explicit, by stating: “…at least the main kinds of intellectual property rights are human rights.”137 Furthermore, the intellectual property system is identified by the Max Planck Institute as being crucial for the realization of Article 15.1(b) of the Covenant. The significance of intellectual property protection for the incentives to undertake expensive research is emphasized, by stating that without exclusive rights of the inventor “… no one would undertake to try to find new pharmaceuticals and other products which may then benefit everybody. […] Accordingly, intellectual property promotes and makes possible the progress of science for the benefit of all.”138 Are these positions correct? This study will argue that the relationship between the two paragraphs is not necessarily as harmonious as claimed by the Max Planck Institute. WIPO acknowledges: “Realization of [Article 15.1(a) and 15.1(b)] may depend upon the promotion and protection of [Article 15.1(c)]; on the other hand, exercise of the latter rights may, in certain circumstances appear to hinder or frustrate realization of the former rights.”139 The full enjoyment of the right of the authors can be a problem for the full enjoyment of other recognized human rights, and insufficient enjoyment of these other rights can be serious for everyone’s physical and mental development, or life and dignity. On the other hand, it is very difficult to perceive that the full enjoyment of social or cultural human rights will affect the enjoyment of authors’ rights to the extent that this will affect the dignity of the author, or his physical and mental development. Therefore, while the enjoyment of authors’ rights, in accordance with Article 15.1(c), shall not be interfered with unjustifiably, there may be circumstances where its enjoyment can legitimately be limited, as authors’ rights can be more easily abused than the other human rights. In this context, however, it is crucial to observe that authors’ rights are recognized in Article 15, on cultural human rights. Authors’ rights are not recognized in the context of economic human rights. Hence, Article 15.1(c) must be assessed on the basis of how it contributes to the fulfillment of the other human rights of Article 15, but also of the other rights. Below, three principles for identifying the balance between Article 15.1(b) and 15.1(c), or rather, the right of the community and the right of the individual author or inventor, are outlined. These three principles will not be elaborated more upon here, but will be introduced in the context of the analysis in Chapter 12: 1) Is the enjoyment of one human right (authors’ rights) affecting positively or negatively the enjoyment of other human rights, as progressive and full realization of 136 Sub-Commission 2001b, pp. 7-8. 137 Ibid, p. 17. This German institute has been crucial in the development of international intellectual property rights legislation. The Institute finds that there is a balance between authors’ and inventors’ rights, on the one hand, and the public interest on the other; hence there is no conflict between intellectual property rights and human rights. The present author does not agree with the simple statement that ‘intellectual property rights are human rights’. 138 Ibid, p. 18. 139 Sub-Commission 2001c, p. 13 (emphasis added).
The Right to Benefit from the Moral and Material Interests of Scientific Production
all economic, social and cultural human rights is the object and purpose of the Covenant? 2) Can a person claiming authors’ human rights be potentially able to enjoy this right to the extent that it might be in the public interest to limit his enjoyment? 3) Are the State parties able to give sufficient priority to the most vulnerable and marginalized when, at the same time, providing the measures for the full enjoyment of authors’ human rights? At the same time, the proper protection of the rights of authors and inventors will also serve social functions, and be in the interests of society. Research, in particular such research which is directly beneficial for the poor, must be encouraged. As shown in this chapter, such research must be understood as a State obligation arising from the recognized rights in Article 15. The general public policy, however, shall also promote innovativity and provide optimal conditions for research. Furthermore, a properly functioning intellectual property rights system is held to be a crucial element in faciliating research and innovativity.
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The Justifiable Limitations to the Recognized Rights
There are two articles of Part II of the Covenant which outline the scope for limitations as well as prohibition of abuse of rights. The analysis of these two provisions, Articles 4 and 5, also contributes to an understanding of the recognized rights. 7.1
Article 4
Article 4 concerns general limitations and reads: The State Parties to the present Covenant recognize that in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law, only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
Only if all requirements listed are met is the State allowed to introduce limitations – by the means of law – in the enjoyment of the rights. First, these requirements will be examined, in order to identify the precise scope of the justifiable limitations. Second, it will be tested whether introduction of legislation in compliance with the TRIPS Agreement implies that Article 4 might be applicable. The term ‘compatible with the nature of these rights” was included in the discussion in the Commission on Human Rights. Each of the rights to which eventual limitations should be applied, had to be ‘closely studied’. The outcome of such study might be that the nature of some of the rights per se will prevent the limitations on the exercise of the right: “Thus for example it is difficult to see how the right to freedom from hunger […] could be subject to limitations that would not be inconsistent with its very nature.” The denial of the right to adequate food can cause serious harm to the individual, and undernourishment can ultimately lead to death. The term ‘determined by law’ is taken directly from Article 29.2 of the Universal Declaration. There were proposals in the Commission on Human Rights that the term
Chile, E/CN.4/SR.235 (1951), p. 13. Alston and Quinn 1987, p. 201.
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‘consistent with’ was better than the term ‘determined by’. The reason for this was that limitations not necessarily required to be justified by positive law. The latter term of ‘determined by’ was preferred by the drafters, as this was more narrow and precise. A specific legislative act is therefore needed to meet this requirement, and will be subject to both public and parliamentarian debate when introduced. It is difficult to imagine a situation in which a legislative act will be undertaken in order to restrict the enjoyment of any of the human rights recognized in Article 11 or 15. Finally, the term ‘solely for the purpose of promoting the general welfare in a democratic society’ is also based on Article 29.2 of the Universal Declaration. The term ‘general welfare’ is the most interesting element for the purposes of this book, while the latter part of the phrase is less relevant . ‘General welfare’ must relate to the ‘standard of living’, as recognized by Article 11.1. It is, moreover, interesting to note that Article 4 indicates explictly that the State is acting as the ‘provider’ of the recognized rights, hence giving a relatively active role to the State. For the purpose of this analysis on limitations, this first part of Article 4 is not relevant, and will not be examined further. Based on the wording of Article 4, there is a very high threshold for limiting the enjoyment of any of the rights. It is confirmed from the travaux préparatoires that the States must precisely define any limitations in the enjoyment of the rights, and the limitations should be defined “…with the greatest possible precision.” Moreover, a proposal was made, under which no limitations to a specific list of rights should be permitted, which included most of the rights, except trade union rights and rights relating to science. This proposal met resistance, however, and was thus never put forward to a vote. There will now be an assessment of Article 4, seen in relation to other similar provisions on limitations, in order to get a better understanding of the scope of Article 4 of the Covenant. One of the most interesting differences between the two UN Covenants is that the International Covenant on Economic, Social and Cultural Rights does not contain exceptions to the specific rights under each of the substantive articles – with one exception, Article 8.1(c) (see below). Furthermore, while the International Covenant on Civil and Political Rights has a rather long Article 4 on legitimate derogation, the International Covenant on Economic, Social and Cultural Rights is rather short, but still establishing a relatively high threshold for subjecting any of the recognized rights to any limitation. The content of Article 4 is based on Article 29.2 of the Universal Declaration on Human Rights. This paragraph reads:
UK proposal, E/CN.4/SR.236 (1951), p. 8; see pp. 7-11. One potential exception could arise with regard to the right to participate in cultural life, if this involves traditional practices of a harmful nature, but then the first requirement of Article 4 would also apply. UN 1950: General Assembly Resolution 421(V)B, paragraph 4(ii) (317th Plenary Meeting 4 Dec. 1950). UN doc E/CN.4/L.175 (23 May 1952), proposed by Chile.
The Justifiable Limitations to the Recognized Rights
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
We see that the focus is changed from the individual as the active subject in the Universal Declaration to the State as the active subject in the Covenant. This difference should not be overemphasized, as the Covenant is more explicitly defining State obligations. Both provisions aim at preventing unjustified limitations in the exercise of human rights. The Universal Declaration adds one justifiable limitation, not found in the Covenant, namely ‘just requirements of morality and public order’. Similar formulations to those in the Universal Declaration are found in the International Covenant on Civil and Political Rights. There are three plausible explanations for why ‘public order’ and ‘morality’ are not listed as justifiable limitations in the International Covenant on Economic, Social and Cultural Rights. First, exercising the economic, social and cultural rights does not imply any threats against neither public order or morality, and therefore, such limitations were not necessary. Second, the rights recognized in the Covenant are so important to protect that if there might be a potential threat against public order or morality, these threats were not considered to be serious enough to justify any limitations in the exercising of the rights. Third, the phrase ‘general welfare in a democratic society’ can be understood as being so broad as to encompass also public order and morality. One specific provision of the Covenant is excplicitly acknowledging that restrictions due to prevailing public interests might be necessary. The wording of Article 8.1(c) demonstrates that the drafters were aware of the terms ‘national security’, ‘public order’ and ‘rights and freedoms of others’, but preferred not to apply them in Article 4. Furthermore, in the Limburg Principles, the following observation was made regarding Article 4: “The Article was not meant to introduce limitations on rights affecting the subsistence or survival of the individual or the integrity of the person.” Moreover, in paragraph 46 of the Limburg Principles, it is stated: “Article 4 was primarily intended to be protective of the rights of individuals rather than permissive of the imposition of limitations by the state.” Two authors who have undertaken an analysis of Part II of the Covenant, note that “…the purposes for which limitations may be imposed, are arguably narrower than than those specified in other human rights instruments.” An example of the latter is the Revised European Social Charter, which in Article G.1 lists three grounds for restricting or limiting the rights: public interest, national security and public health and morals.
The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights”, E/CN.4./1987/17, Annex), paragraph 47. This paragraph from the Limburg Principles has been reiterated by the Committee in two of the recent General Comments, No. 13 on the right to education, paragraph 42, and No. 14 on the right to health, paragraph 28. Alston and Quinn 1987, p. 193.
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Moreover, they find that Article 4 is on “…limitations other than those that could be imposed under Article 2.1 […] to harmonise the relationship between enjoyment of particular rights and the legitimate interests of the community.”10 This comparison with other treaties, as well as the insight provided by legal scholars, confirm that the justifiable limitations as defined by the Covenant are narrowly defined. The application of Article 4 will therefore be restricted. Finally, based on this understanding that Article 4 must be understood to have a restricted application, due to its requirements, the three requirements of Article 4 will now be tested, applied in relation to the TRIPS Agreement. The question is whether the State is allowed to subject any of the rights of the Covenant to limitation resulting from the implementation of TRIPS. The first requirement is met, as the introduction of patent or plant variety legislation in accordance with TRIPS is made by the means of law. The second requirement is more difficult to fulfill. Limiting human rights, which seeks to protect human beings, as a result of the exercise of patent rights, in order to protect inventions, cannot be said to be in compatible with the nature of human rights. The protection of human beings is of a fundamental nature, while the protection of patents can be seen as a tool to achieve higher societal objectives, including realization of human rights.11 The third requirement might potentially apply, as the objective of intellectual property rights is that this shall serve the society and contribute to the general welfare, as will be analyzed in more detail in Chapter 12.3.1. Therefore, it can be argued by the State that it considers it necessary to introduce intellectual property rights, even if this might potentially have a negative impact on human rights realization in the short term, because this will provide the incentives which will make it possible to increase the general welfare in the long term. Therefore, a State can base its justifiable limitation of the human rights recognized in the Covenant on the third requirement of Article 4. At the same time, there is limited application of Article 4.12 As the second requirement is not found to be met, however, Article 4 cannot be applied as a justifiable limitation on the enjoyment of the rights recognized in the Covenant. The nature of these rights are of such fundamental value, and hence above the rights recognized in TRIPS. Article 4 will be returned to in the analysis in Chapter 11, in the context of identifying treaties which protect more fundamental values. 7.2
Article 5
Article 5 is identical in the two 1966 Covenants. Article 5 of the Covenant reads:
10 Ibid, p. 194. 11 This is stated in clear terms by the Commission on Intellectual Property Rights, 2002, p. 6: “an IP right is best viewed as one of the means by which nations and societies can help to promote the fulfilment of human economic and social rights. In particular, there are no circumstances in which the most fundamental human rights should be subordinated to the requirements of IP protection.” 12 Sepúlveda 2003, pp. 277-293.
The Justifiable Limitations to the Recognized Rights
1.
2.
Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perfom any act aimed at the destruction of any of the rights or freedoms recognized herein or at their limitations to a greater extent than is provided for in the present Covenant. No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.”
Article 5.1 is based on Article 30 of the Universal Declaration of Human Rights: Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Article 5.1 of the Covenant (‘prohibition of abuse of rights’) must be understood both to exclude the performance of certain acts, and - in the latter part of Article 5.1 - to reinforce the general limitations clause in Article 4,13 implying that the ‘limitations’ provisions must be understood to be exhaustive.14 Article 5.1 prohibits any interpretation of the Covenant to give any right for the State, group or individual intending to destroy the recognized rights in the Covenant. The Article uses the term ‘destruction’, which must be considered to be strong wording. The term ‘destruction’ must be understood to cover both ‘violations’ with regard to State actions, and ‘abuses’ with regard to actions committed by groups and individuals. Only States can violate the Covenant, and therefore the term ‘violation’ is not appropriate – and hence does not appear – in the context of Article 5.1. It cannot be presumed that the term ‘destruction’ and the term ‘violation’ refer to the same activities. The term ‘destruction’ has not been given a precise explanation by the Committee, which rather refers to violations of human rights. The term ‘destruction’ would seem to imply that the rights are intentionally and systematically destroyed. When referring to non-State actors, the potential relevance of Article 5.1 is limited to cases where these actors are involved in acts they claim to be justified by, and in accordance with the Covenant, but where these acts destroy the rights recognized in the Covenant.15 13
The use of the term ‘or’ between the ‘destruction’ and ‘limitation’ passages of Article 5.1 indicates that these are two different requirements; the latter is only a reconfirmation of Article 4. 14 Alston and Quinn 1987, p. 207. 15 No cases have resulted from the implementation of the International Covenant on Economic, Social and Cultural Rights, as the Covenant does not open for individual complaints. If the enjoyment of the right of parents to ensure a religious and moral education in conformity with their own conviction (Article 13.3 of the Covenant) or the right to participate in cultural life will lead to discrimination between ethnic groups or between sexes, this could be a reason to limit such practices in accordance with Article 5.1.
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Article 5.1 must be understood in a specific and concrete context, in which the steps taken for the promotion of one recognized right will directly counteract another right, resulting in either a destruction or violation. Article 5.1 therefore states that all provisions of both Covenants must be understood in the light of all other recognized rights, and that none of the human rights can be used to counteract another right. There is no guidance from the Committee on an understanding of Article 5.1. The expert seminars on the implementation of the Covenant16 and the violations of economic, social and cultural rights,17 respectively, have not dealt extensively with this paragraph. It is therefore difficult to assume which types of acts might fall within the scope of Article 5.1. Thus, while Article 5.1 does recognize the potential existence of acts that can destroy the recognized human rights, its application and scope is still uncertain. Article 5.1 must rather be understood to be a confirmation of the inalienable and indivisible nature of all human rights, a principle that shall also be observed by non-state actors. Applied on the balancing between Article 15.1(b) and 15.1(c), it is not possible to exercise either the rights of the author or the right of everyone to benefit from scientific progress and its applications in a way that one right or the other cannot be exercised.18 It is therefore only possible to confirm that a situation might arise under which certain actors, be they State, group or persons, facilitate or exercise one recognized human right in a manner which works against the enjoyment of another human right. Such a situation could arise if the rights relating to survival (the right to food and health), in particular for members of a traditional or marginalized individual community are threatened by stronger actors enforcing their human rights in a manner which impedes the rights of people belonging to this traditional or marginalized community. The second paragraph of the article, the ‘savings clause’ of Article 5.2, confirms simply that all recognized rights shall be observed through the various forms of implementation (‘law, conventions, regulations or custom’), and that no restrictions or derogation from any of the fundamental human rights shall be admitted based on notions of the lack of or the weaker recognition of such rights in the Covenant than in other instruments.19 Two brief observations can be made: First, based on the reasoning applied on the use of the term ‘fundamental’ when analyzing Article 11.2 (Chapter 5.1.4), this term should 16 The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights”, E/CN.4./1987/17, Annex). The most interesting aspect of the implementation of the rights is the emphasis on Article 5 applied on the rights of peoples in Article 1.2: “nothing in the Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.” Article 1.2 will be introduced in the analysis in Chapter 12.3.1. 17 The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 1997 reprinted in Human Rights Quarterly 1998, Vol.20, pp. 691-705, and in Eide et al. (eds.) 2001, Annex 4. 18 See, however, the position expressed by WIPO; see Sub-Commission 2001c, p. 13. 19 This principle is referred to as the ‘more favorable provision’, see Sadat-Akhavi 2003, Chapter 7.
The Justifiable Limitations to the Recognized Rights
not be understood as indicating that there is a hierarchy of human rights between ‘fundamental’ and ‘non-fundamental’ rights. Article 5.2 must therefore be understood to apply to all human rights recognized in the Covenant. At the same time, human rights which are relating to the survival of the person, such as the right to food, must be considered as being more important than the rights which seek to protect the moral and material interest of the author, as the latter are not directly relating to one’s survival. Second, Article 5.2 is also a reconfirmation of general principles of interpretation of international law. As such, it does not alter the status of the Covenant in relation to other treaties. One article cannot be interpreted in isolation from other provisions. There has been little elaboration of the content of Article 5, but the Human Rights Committee has applied the equally-worded Article 5 of the International Covenant on Civil and Political Rights.20 The jurisprudence developed by the Human Rights Committee, in its consideration of individual complaints under the International Covenant on Civil and Political Rights, is not specifically relevant for understanding the International Covenant on Economic, Social and Cultural Rights. While Article 5 establishes important principles, it does not contribute to identifying any particular importance or relevance of the right to food. Article 5 of the Covenant does therefore not add much to the general principle saying that human rights which relate to the survival of the human being must be prioritized over other human rights which have no direct relationship to human survival. Author’s rights as recognized in Article 15.1(c), however, belong to those human rights which can be subject to abuse by the holders of the rights. It cannot be excluded that this human right can be exercised by the individual to the detriment of the enjoyment of human rights by others.21 In these situations, the abuse of the right must be brought to an end. At the same time, the full realization of all human rights implies that any restrictions on the exercise of any human right should be avoided as far as possible, and based on a conscious and thorough assessment of the implications for those seeking to exercise their human rights. We will not return to Article 5, as it is not found to be relevant for the purpose of this study.
20 See Human Rights Committee 1981: López Burgos v. Uruguay (paragraph 12.3) and Celiberti v. Uruguay (paragraph 10.3) (XXXVI General Assembly Official Record Supplement No. 40 (Report of the Human Rights Committee) pp. 176-189. With regard to the López Burgos case, see also Saldias de Lopez v. Uruguay, Communication No. 52/1979, 29 July 1981, U.N. Doc. CCPR/C/OP/1 (1984), p. 88, paragraph 12.3, in which the same reference is made to Article 5.1. 21 At the same time, authors’ rights as recognized by Article 15.1(c) of the Covenant, are distinct from patent and plant breeders’ rights, as recognized by international treaties, but as demonstrated in Chapter 6.1.2, inventors and breeders can enjoy human rights in accordance with Article 15.1(c).
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Part III: TRIPS and TRIPS-Compatible Protection
In accordance with the TRIPS Agreement, WTO member States must provide patent protection for most biotechnological inventions, as well as an ‘effective sui generis system’ for the protection of plant varieties. This analysis will seek to identify the minimum requirements that the TRIPS Agreement establishes, and which the States must comply with in order to have a TRIPS-compatible legislation. Chapter 8 will present the relevant parts of the TRIPS Agreement, as well as the context for understanding the TRIPS Agreement, in accordance with the Vienna Convention on the Law of Treaties. The analysis will be based on four legal elements. First, patent eligibility and the legal criteria of novelty, inventive step and industrial applicability. Second, the possible exclusions from patentability. Third, the legal consequences, in other words the legal protection the right holder can enjoy. Fourth, the possible exceptions from these exclusive rights. Chapter 9 provides first an analysis of the two most recent Acts of the UPOV Convention (UPOV 1978 and UPOV 1991). Then there will be an analysis of the term ‘effective sui generis system’, identifying the requirements that must be met for a protection of plant varieties in accordance with Article 27.3(b) of TRIPS. The four elements identified above will be the basis for the analysis. This analysis will therefore be limited to these two categories of protection, while acknowledging that there is an increased awareness as to whether farming-dependent developing States should alternatively avail themselves of other categories of intellectual property recognized in TRIPS.
Article 27.3(b) of TRIPS allows for excluding plants, animals and essentially biological processes for the production of plants and animals. See Escudero 2001, Ragnekar 2003 and Opoku Awuku 2005, p. 80, in support of the view that geographical indications might be appropriate for ensuring the interests of farming communities of developing States; see also Pires de Carvalho 2005, p. 232: “Geographical indications […] has traditional knowledge as its subject matter.” A footnote refers to WIPO 2001 paragraph 28. See Sampath and Tarasofsky 2002, p. 15, Stevenson 2002 and Chambers and Kambu 2004 in support of a view that traditional knowledge belonging to local and indigenous communities can be protected as undisclosed information (trade secrets). For an alternative view, see Jacoby and Weiss 1997 p. 101 and Girsberger 1998, doubting that such communities are able to maintain the secrecy of their knowledge.
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The TRIPS Agreement, Particularly Patent Protection
In this chapter, a detailed presentation and analysis of the TRIPS Agreement will be given. The TRIPS Agreement must be understood in the context of the whole WTO Agreeement, including the system for dispute settlement. The terms of an international treaty shall be interpreted in their context, and the Agreement establishing the WTO (‘WTO Agreement’) and the other multilateral trade agreements comprise this context, in accordance with the Vienna Convention on the Law of Treaties, Articles 31.1 and 31.2. The drafting of TRIPS will also be analyzed, before an in-depth analysis of relevant provisions regulating patent protection (Section 5 of Part II). Finally, the provisions of TRIPS Part III on implementation and enforcement will be referred to, but will not be subject to an in-depth analysis similar to the analysis of Section 5 of Part II. The provisions of Part III do nevertheless represent an important part of TRIPS. 8.1
The TRIPS Agreement as Part of the WTO Agreement
8.1.1
Introduction
In order to have a precise understanding of the TRIPS Agreement, there are two characteristics common to all WTO multilateral trade agreements that must be emphasized. First, TRIPS must be understood in the context of the WTO Agreement with all its annexes. Second, the basis for determining compliance with any of the WTO multilateral trade agrements is formed by the legal provisions of the national legislation. Article XVI:4 of the WTO Agreement states: Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.”
According to Article XI:2 of the WTO Agreement, all WTO Member States shall adopt and implement all the multilateral agreement that resulted from the Uruguay Round (19861994). A panel has stated that “legislation as such, independent of its application in specific cases, might breach […] WTO obligations” (emphasis added), see US – Section 301-310 (WT/ DS152/R), paragraph 7.41.
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At the same time, it must initially be noted that TRIPS regulates subject matter differently from the other WTO treaties, by acknowledging individual rights. This indicates that there are certain characteristics of TRIPS which are not shared with the other WTO multilateral trade agreements. Below, the particularities of TRIPS will be identified. Moreover, the dispute settlement system, which is held to constitute a strong motivation for compliance with the respective agreements, is outlined. The extent to which the interests of the developing States is taken into account in the dispute settlement system is of particular interest in this study. Finally, the positions of developing and industrialized States in the TRIPS negotiations will be examined, in particular whether developing States’ interests were sidelined in exchange for concessions given to them in other negotiations under the Uruguay Round. 8.1.2
The Particularities of TRIPS
While the other WTO agreements seek to reduce any restrictions on trade between States by prohibiting discrimination of foreign goods and services, the subject in the TRIPS Agreement is the holder, either a natural or a legal person (individual or corporation), of any intellectual property right. Whether TRIPS has direct effect in national jurisdictions depends more on the national systems than on TRIPS per se, but all States must implement the TRIPS Agreement by national legislation. The provisions in Part II of TRIPS establish the minimum standards, but national legislation is necessary for giving legal effect to these standards.
Drahos 2001, p. 57, refers to three main aims for the negotiations concerning TRIPS as expressed by the business community in developed countries, of globalizing and harmonizing the patent system, as well as establishing mechanisms for enforcing the recognized rights. The adoption of the WTO Agreement and its annexes has, according to Petersman 2001a, p. 26, introduced a ‘positive integration law’. This is also stated in the preamble, which reads (extracts): ”recognizing that intellectual property rights are private rights.” But see the reasoning of the ECJ in the Joined Cases Parfumes Dior (C-300/98) and Assco Gerüste (C-392/98), which concerned the jurisdiction of the Court to interpret provisions of TRIPS, and the issue of direct effect. Before this joined case, the ECJ had consistently refused to recognize the direct effect of the WTO Agreements. The ECJ found in paragraph 49: “Community law neither requires nor forbids that the legal order of a Member State should accord to individuals the right to rely directly on the rule laid down by Article 50(6) of TRIPs…” It was therefore left to the “…Contracting Parties, within the framework of its own legal systems, the task of specifying whether the right to sue […] is to be classified as an intellectual property right…” See also Bontinck 2001 on this specific case and van Hase 1998 for a more general analysis on national application of TRIPS. Staehelin 1999, p. 242, finds that the TRIPS Agreement has many provisions which fulfill the criteria for being directly applicable. WTO Members such as the USA have explicitly enacted legislation that prevents individuals from invoking WTO rules before domestic courts (Petersmann 2001a, p. 27).
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While the TRIPS Agreement builds on existing international treaties, it introduces new standards for the effective protection of intellectual property rights in national jurisdictions. TRIPS therefore directly affects national policy priorities. Generally stated, the rights derived from TRIPS relate to persons, institutions or corporations as rightholders: “…whereas other WTO Agreements generally safeguard the right of WTO Members, the TRIPS Agreement preserves the private property rights of individuals and corporations.” This is different from other WTO agreements, where natural or legal persons are beneficiaries, but not right-holders. The detailed provisions in Part III of TRIPS on how intellectual property rights shall be enforced are not found in other intellectual propery rights treaties. It should be observed that the UN Conference on Trade and Development (UNCTAD) acknowledges that the “…substantive obligations and disciplines set forth in the TRIPS Agreement are now widely accepted as the centerpiece of the international IPR regime.”10 Disputes between States concerning the interpretation and implementation of the TRIPS Agreement take as their starting point specific national legislation, including insufficient standards, lack of legislation or unjustified legislative exceptions, even if there is no discrimination between foreign and national right holders.11 This is unlike disputes over other of the WTO agreements, where disputes relate to discriminatory practices Article 2.1 of TRIPS reads: “In respect of Parts€II, III and IV of this Agreement, Members shall comply with Articles€1 through 12, and Article 19, of the Paris Convention (1967).” Four WIPOtreaties are referred to in TRIPS Article 2.2: Paris Convention for the Protection of Industrial Property, Berne Convention for the Protection of Literary and Artistic Work (but note that TRIPS Article 9.1 states that “Members shall not have rights or obligations under [the TRIPS Agreement] in respect of the rights conferred under Article 6bis [moral rights] of [the Berne Convention] or of the rights derived therefrom”), Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations and Treaty on Intellectual Property in respect of Integrated Circuits (adopted in 1989 – not in force). The intellectual property rights regulated in Section 1-7 in Part II of the TRIPS Agreement are: copyrights and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs of integrated circuits and protection of undisclosed information. Plant breeders’ rights fall under Section 5. Arup 2000, p. 178 (see also pp. 206 and 308), asserts that TRIPS re-regulates, by introducing standards. CIEL 2001, p. 12. Watal 1998, p. 282, writes: “…for developing countries [the TRIPS Agreement] represents a major change, not only from pre-existing international law on the subject, but also from their pre-existing national laws” (emphasis added). See also Stenvik 2001, in particular p. 179, stating that TRIPS was much more comprehensive than expected, as well as Strauss 1996, p. 178, Adede 2003, and Watal 2001. For an alternative position emphasizing that TRIPS obligations are ‘truly minimal’, see Samuelson 2004, p. 538. Moreover, Sherwood 1997, p. 495, finds that TRIPS does not represent a ‘robust level of protection’. 10 ICTSD/UNCTAD 2003, p. 6. 11 One dispute arising under TRIPS relates explicitly to discrimination of foreigners: Indonesia – Automobiles (WT/DS55/R, with parallel cases), on trademarks under the National Car Program.
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per se, including subsidies, other market-distorting effects or some forms of technical trade barriers. The result of the adoption of the TRIPS Agreement is that intellectual property rights, which have been regulated by treaties to which mostly industrilalized countries have been part, must now be effectively protected in all WTO member States. Plant variety protection is the most relevant example in the context of this book: “…its adoption has done more to encourage the legal protection of plant varieties than any other international agreement.”12 On the other hand, TRIPS does not include certain forms of intellectual property which have traditionally been recognized in developing countries.13 Regardless of one’s opinion concerning the potential benefits of the implementation of TRIPS, there is general agreement that the most direct beneficiaries of the stronger system for the protection of patents are the technology producers. As observed by one author, the different factors affecting the outcome of the TRIPS negotiations, “…resulted in one-sided protection of producer rights” and “…may be inconsistent with the human rights interests of consumers.”14 8.1.3
Principles and Procedures Regarding Developing Countries in the Dispute Settlement System
The WTO has established a system for settlement of disputes regarding interpretation and implementation of any of the WTO Agreements, which is outlined in Chapter 3.2.2. This section addresses the provisions which are relevant with regard to developing countries. As this study pertains specifically to developing countries, awareness of the content of these provisions as well as whether they are actually applied is relevant. The Dispute Settlement Understanding (DSU) recognizes the special situation of the least-developed countries in Article 2415 and of developing countries in Articles 3.12, 4.10, 12.10, 12.11, 21.2, 21.7, 21.8 and 27.2. These paragraphs state, respectively, that if developing countries are the complaining party, they “shall have the right to” a swifter procedure than the one prescribed by the DSU; that during consultations, special attention should be given to the “particular problems and interests of developing country Members”; that “the parties may agree to extend the period” for the establishment of panels; that the “report shall explicitly indicate” how differential and more-favorable treatment for developing States has been taken into account; that “particular attention shall be paid to matters affecting the interests of developing country Members”, that 12 Helfer 2002, p. 19. 13 See Gervais 2003b, p. 406: ”Traditional knowledge is an enormous challenge for […] TRIPS” and further p. 408: “…property rights, as they are understood in Western legal systems, often do not exist in indigenous and local communities which hold traditional knowledge.” (footnote omitted). 14 Petersmann 2001a, p. 27; see also ibid, p. 30 and Petersmann 2000, p. 1374. 15 Article 24 DSU reads (extracts): “…particular considerations shall be given to the special situations of least-Developed Country Members. In this regard, Members shall exercise due restraint in raising matters…[and] in asking for compensation or seeking authorization to suspend the application of concessions…”
The Trips Agreement, Particularly Patent Protection
the Dispute Settlement Body shall consider action that would be “appropriate to the circumstances”; that any action shall take into account “the impact on the economy of the developing country”; and that the Secretariat shall “make available a qualified legal expert from the WTO technical cooperation services to any developing country Member”. These provisions regarding developing countries have not been frequently applied: they have only been referred to in one panel report and three arbitrators reports.16 Therefore, while there are several provisions of the DSU aiming at securing the interests of developing States, these provisions are infrequently applied, at least in written reports. 8.1.4
Application of the Dispute Settlement System and National Application of TRIPS Provisions
There are certain principles which apply to GATT 1994 which do not apply similarly to TRIPS – at least for a temporary period of time. First, Part V of the TRIPS Agreement (Articles 63 and 64) regulates transparency, as well as dispute prevention and settlement. It must be noted that GATT 1994 and TRIPS treat differently cases of so-called ‘non-violation’,17 as only cases of ‘non-violation’ under the former can be brought before the dispute settlement system. Second, while GATT applies to all States, TRIPS allows developing and least-developed States to postpone the date for when the TRIPS provisions shall apply in those States. Moreover, with regard to the national application of TRIPS, the preamble to the TRIPS Agreement addresses the particular situation of least developed States, by recognizing these States’ need for “…maximum flexibility in the national implementation of laws and regulations in order to enable them to create a sound and viable technological base.” Furthermore, TRIPS Article 1.1 reads (extracts): 16 See ‘Dispute settlement system training module: Chapter 11.2’: Developing countries in WTO dispute settlement: <www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/ c11s2p1_e.htm>. 17 Articles 64.2 and 64.3 regulate the procedures for raising a ‘non-violation complaint’, but as these provisions still do not apply, they will not be analyzed in detail. In short, this is the possibility of bringing a complaint relating to intellectual property before the Dispute Settlement Panel also in cases where the provisions are not explicitly violated. Article 64 refers to Articles XXII and XXIII of GATT 1994. Article 64.2 states that subparagraphs 1(b) and (c) of Article XXIII of GATT 1994 shall not apply to disputes of the TRIPS Agreement for the first five years after the entry into force of the TRIPS Agreement. Paragraphs 1(b) (‘application of any measure, whether or not it conflicts with the provisions’) and 1(c) (‘the existence of any other situation’) of Article XXIII GATT 1994 still do not apply to TRIPS. Presently, therefore, only Article XXIII:1(a) (‘the failure of another contracting party to carry out its obligations under this Agreement’) applies to TRIPS. Industrialized countries are not puhsing in the TRIPS Council in order to end the transitional period of TRIPS Article 64.2 (IP/C/W/49, paragrah 241). Hence, the only basis on which a States can bring a complaint before the dispute settlement system regarding TRIPS obligations is GATT Article XIII:1(a).
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Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.
Part VI of TRIPS introduces transitional arrangements in Articles 65 and 66. Article 65 applies to developing countries and countries with economies in transition, identifying 1 January 2005 as the date when the TRIPS provisions shall be applied. Article 66 applies to the least-developed contries, and Article 66.1 provides for longer transitional periods (now 1 July 2013).18 Moreover, with regard to one specific field of technology, namely pharmaceuticals, Article 66.1 allows an additional period for when least-developed countries shall be required to apply the provisions of Sections 5 and 7 of Part II of TRIPS. This extension of the transitional period to 2016 was included in a Declaration from the the Fourth Ministerial Conference19 and formally decided at a subsequent TRIPS Council meeting.20 It must be acknowledged that that when such concessions were possible in the field of pharmaceuticals, where patent protection is so important, similar concessions could potentially be made also regarding other fields of technology. Article 66.2 concerns assistance from industrialized States in order to facilitate the implementation of TRIPS.21 A final provision on the national application of TRIPS provisions is found in Part VII of the TRIPS Agreement, dealing with institutional arrangements and final provisions. Article 70 on protection of existing subject matter was included in the last phase at the strong request of industrialized countries, fearing that the transitional arrangements of Articles 65 and 66.1 would signify very limited options for the protection of intellectual property relating to certain inventions.22 Finally, Article 72 states that reservations shall not be entered into without the consent of the other WTO member States. TRIPS therefore does not exclude reservations. 8.1.5
A Brief Drafting History of TRIPS
In order to gain a better understanding of the specific provisions of the TRIPS Agreement, a presentation of the drafting history will be undertaken. The WTO does not have any
18 WTO 2005a. Paragraph 6 reads “This Decision is without prejudice […] to the right of leastdeveloped country Members to seek further extensions of the period provided for in paragraph 1 of Article 66 of the Agreement.” 19 Declaration on TRIPS and Public Health, WT/MIN(01)/DEC/W/2, paragraph 7. 20 The second paragraph of the decision of 27 June 2002 (Document WT/IP/C/25 of 1 July 2002) reads: “This decision is made without prejudice to the right of least-developed country Members to seek other extensions of the period provided for in Paragraph 1 of Article 66 of the TRIPS Agreement.” 21 Article 66.2 concerns transfer of technology to least developed countries, but there are no strong mechanisms in place in order to ensure implementation of this provision. 22 According to TRIPS Article 70.8, means for the application of patents shall be provided, and in accordance with Article 70.9, this shall lead to exclusive marketing rights for products. Paragraph 70.8 and 70.9 only apply to pharmaceutical and agricultural chemical products.
The Trips Agreement, Particularly Patent Protection
official records of the negotiations. The positions of different States or groups of States can be traced from the communications made by States during the negotiations. The issue of counterfeit goods in the area of copyrights was accepted by developing countries as being trade-related. The mandate to proceed with an agreement to regulate trade-related aspects of intellectual property rights, including trade in counterfeit goods, was given at the 1986 GATT meeting of trade ministers in Punta del Este in Uruguay. The text of the Ministerial Declaration23 stated that the negotiations “…shall clarify GATT provisions and elaborate as appropriate new rules and disciplines. Negotiations shall aim to develop a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods…” A book issued some years later, highly critical to the subsequent developments in what was to become the TRIPS Agreement, considered this mandate from the Punta del Este Ministerial meeting as being ‘carefully drafted’,24 which must be understood that the mandate was adequate in relation to the problem identified, and sufficiently balanced. The US trade measures under ‘Special 301’ of the 1988 Omnibus Trade and Competitiveness Act25 were targeted toward countries with generally weak measures for intellectual property protection, in particular countries that actively attempted to limit the broad scope of the TRIPS negotiations in the late 1980s and early 1990s.26 As the issues introduced in the TRIPS negotiations became more substantive, particularly by inclusion of the term ‘adequate standards’ in 1989,27 this paved the way for negotiations on Part II, concerning the specific standards. This implied that negotiations began over substantive provisions regulating protection of existing intellectual property rights, as well as new categories which had not previously been regulated in international treaties. During the 1989 negotiations, opposition from developing countries was expressed, though initially not very well coordinated.28 Of particular concern for developing States was the introduction of strong patent protection. The discussion regarding what could be protected by patents was one of the most contentious issues of the TRIPS negotiations, and the European Patent Convention served as the model. The wording of Article 27, extending the protection to all fields of technology, was reluctantly accepted after industrialized States had revised other WTO agreements to increase the market access for goods from developing countries.29 23 GATT 1986. 24 Raghavan 1990, p. 127. 25 The Special 301 relates directly to intellectual property practices, while the more general Section 301, adopted in 1984 relates to trade practices in general. Both of these legislations include the use of strong measures in order to bring an end to practices found to negatively affect the trade interests of the USA. 26 Watal 2001, p. 26. 27 GATT 1989a, paragraph 4(b). 28 See Watal 2001 Chapter 1 for an overview of the negotiations from the perspective of developing countries. 29 See Reichman 1998, p. 23, referring also to other studies with similar conclusions.
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Developing countries’ concerns related to the proper balance between private and public interests, as well as between the rights and obligations of the patent holder. India explicitly stated that only restrictive and anti-competitive practice of owners of intellectual property could be considered ‘trade-related’.30 India further stated that other issues relating to intellectual property, and patents in particular, should be left to national governments to decide, according to their technological and developmental policies. Other countries that submitted position papers in the intial stages of negotiations, with a common concern for the over-protection of intellectual property rights, include Thailand,31 Mexico32 and Brazil.33 The two proposals which constituted the basis for the subsequent negotiations, were the proposals from the European Communities34 and the USA.35 Now the emphasis was on the development of the appropriate standards, which was important for industrialized countries, but which were not endorsed by developing countries, as the proposed standards were found to be more appropriate for countries with a high level of economic and technological development. The former, comprehensive proposal, was termed ‘A’ in a GATT document of the summer of 1990, while the proposal that TRIPS should cover trade in counterfeit goods only, was termed ‘B’.36 Another issue of substantial disagreement was the transition periods. The outcome, found in Articles 65 and 66, was a general transition period of four years for developing countries and economies in transition (plus five extra years for new areas of technology), and ten years for the least-developed member States. In the last minutes of the negotiations, however, new text was introduced in Article 70.8 (filing of applications) and 70.9 (exclusive market rights) to provide a means for the application for patent in the field of pharmaceuticals and chemicals, to provide for protection in those States where a full-fledged patent system had not yet been established. In conclusion, while the original mandate was to include only issues that were traderelated, and limit the agreement to prevent trade in counterfeit goods, TRIPS also introduced substantive new provisions and introduced new categories of protection. Moreover, as a result of the wide mandate for the Uruguay Round negotiations, the parallel negotiations effectively prevented countries with a limited capacity to participate effectively, the simultaneous strong influence exercised by the advocates for stronger protection,37 as well as the pressure exercised especially by the USA upon TRIPS-re30 31 32 33 34 35 36 37
GATT 1989b. GATT 1988a. GATT 1988b. GATT 1988c. GATT 1990a. GATT 1990b. GATT 1990d. For an assessment of the reduced influence of the industry in the “pre-TRIPS” period, see Beier 1984, p. 15: “the AIPPI [International Association for the Protection of Industrial Property] […] has lost most of its former influence.” For an analysis of the influence of the private sector in the negotiations of TRIPS, see Mattews 2002, Sell 1998 and 2003, Braithwaite and Drahos 2000, and Dutfield 2003b.
The Trips Agreement, Particularly Patent Protection
luctant developing States,38 one can ask to which extent the TRIPS Agreement in reality represents the agreed intentions of the parties.39 While the influence of developing countries was limited, however, some of the articles are based on the original proposals or amendment proposals from developing countries.40 8.2
Patent Protection in the TRIPS Agreement41
8.2.1
Introduction
The crucial issue for the purpose of this study is whether WTO member States will be allowed to undertake certain measures with the aim to realize the right to food, inter alia, by providing access to improved seeds and strenghtening the interests of those who conserve and are involved in traditional breeding. In order to examine whether these measures are compatible with TRIPS, this must be answered by examining in detail the provisions of TRIPS, in particular the standards for the protection of intellectual property in Part II of TRIPS, to have a precise understanding of the minimum requirements. While patent protection relating to agricultural production is relevant in several fields of technology, such as chemicals, fertilizers and pesticides, the analysis will focus on patents on plant biotechnology in the field of edible agricultural products. This strict focus of the analysis, however, must not be interpreted as indicating that patents in these other fields of technology are not related to the right to food. This more narrow focus on patents on biotechnological inventions is justified in the context of this book, as such patents have given reason to strong concerns. Four elements will be analyzed: patent eligibility, exclusions from patentability, rights conferred by a patent, and exceptions to the exercise of the rights. To simplify the analysis below, this section focuses on product patents. It is acknowledged that process patents, as well as products directly obtained by the process, are patentable. The emphasis is on product patents, as it is generally understood that if an invention qualifies for a product patent, the process for producing such a product is also patentable. As the emphasis in this section is on minimum requirements of TRIPS, an analysis on product patents will be valid also for process patents. On the other hand, it would be inaccurate to focus the analysis on the minimum requirements of TRIPS by using process patents as the basis, and then extend such conclusions to product patents.
38 See Watal 2001 and Sell 2003. 39 The most comprehensive assessment of the position of developing countries in the negotiations of the TRIPS Agreement can be found in Watal 2001. 40 Watal 2001, p. 32 and p. 43 list the relevant articles: 6, 7, 8, 13, 27, 29, 30, 31, 32, 40 and 41. 41 A detailed presentation of the TRIPS Agreement can be found in Blakeney 1996 and in Gervais 2003a.
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8.2.2
Patent Eligibility
The TRIPS Agreement states in Article 27.1: ”…patents shall be available for any inventions, whether products or processes, in all fields of technology…”42 TRIPS does not define what constitutes an ‘invention’, which is left to national legislation. Regarding biotechnology, WTO members must grant patent protection to micro-organisms, non-biological and microbiological processes, as well as “…provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.”43 This latter provision will be analyzed in Chapter 9.2 below. Article 27.1 prevents any WTO member State from excluding any field of technology from patentability. Therefore a patent law which discriminates between fields of technology is not in compliance with the TRIPS Agreement.44 In one of the few cases which has examined this provision, however, it is stated: “Article 27 does not prohibit bona fide exceptions to deal with problems that exist only in certain product areas.”45 The basis for this conclusion is not spelled out. It is noteworthy that Article 27.1 has been interpreted with a certain flexibility, also in the context of an industrialized State. The dispute settlement panel’s finding that the prohibition against discrimination between fields of technology is not absolute is specifically relevant for developing States. As the provisions of TRIPS will be analyzed in light of the object and purpose, as expressed, inter alia, in Article 7 and 8,46 it is relevant to examine the content of these provisions. Article 7 addresses ‘the transfer and dissemination of technology’. Article 8.1 on ‘principles’ allow States to adopt measures to: …promote the public interests in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. 42 The full text of Article 27.1 (Patentable Subject Matter) reads: Subject to the provisions of paragraphs€2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph€4 of Article€65, paragraph€8 of Article€70 and paragraph€3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.
43 Article 27.3(b) allows for excluding certain products and processes, more specifically ‘plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals’. 44 In Canada – Phramaceuticals (WT/DS114/R), paragraph 7.94, ‘discrimination’ is understood as “…unjustified imposition of differentially disadvantageous treatment.” Moreover, the panel held that the term ‘discrimination’ should be avoided, and “…it is a term to be interpreted with caution, and with care to add no more than precision than the concept contains.” 45 Ibid, paragraph 7.92. The report by the Panel was not appealed to the Appellate Body. This understanding by the panel has not been referred to in later reports by panels or the Appellate Body. 46 See Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/W/2, paragraph 5(a).
The Trips Agreement, Particularly Patent Protection
Moreover, Article 40 TRIPS (control of anti-competitive practices in contractual licences) reads in paragraphs 1 and 2 (extracts): Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology. …a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices…
Hence, according to Articles 40.2 and 8.1, States may adopt measures in the form of law or regulations relating to technological development, transfer and dissemination, provided that such measures are not inconsistent with the other provisions of TRIPS. Article 27.1 also contains a list of legal criteria, which is well accepted. The paragraph states that patents shall be available for any inventions ”…provided that they are new, involve an inventive step[47] and are capable of industrial application.”48 An initial requirement is that the subject matter which is sought protected is actually eligible for protection.49 In the field of biotechnological inventions, many industrialized countries’ legislation states that isolation and description of gene sequences as well as identifying an application is considered sufficient for patent protection.50 TRIPS gives no obligation to establish standards of protection similar to those of industrialized States,51 as TRIPS establishes minimum requirements. TRIPS does not provide any definitions regarding these three criteria (novelty, inventive step and industrial applicability), and neither has any other WTO document elaborated on these definitions. It will be examined to which extent the States may use their own definitions. Novelty: Patents can only be given to inventions that were new to the public at the application date. Any knowledge that is not new constitutes prior art, therefore the novelty 47 In the US Patent Act Section 103, the term is not ‘inventive step’, but ‘non-obvious’. 48 In the US Patent Act Section 101, the term is not ‘capable of industrial application’, but ‘useful’. 49 Nuffield Council 2002, p. 28. 50 See ibid Article 3.2 of the Directive EC/98/44: “Biological material which is isolated from its natural environment or produced by means of a technical process may be the subject of an invention, even if it previously occurred in nature.” On the issue of plant variety protection, Article 4.1 and 4.2 reads: “The following shall not be patentable: a) plant and animal varieties; b) essentially biological processes for the production of plants and animals. Inventions which concerns plants and animals shall be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety.” See also Nuffield Council 2002. 51 There are substantial differences between national legislation. While the EPC Article 54.2 recognizes ‘everything made available to the public’ as representing state of the art, the US Patent Act Section 102(a) does not recognize inventions ‘known or used by others in a foreign country’ as destroying prior art and hence being excluded from patentability.
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criteria is not met. The disclosure of an invention can be done by means of writing, exhibition or exploitation. Searches in relevant journals and patent databases are necessary in order to determine whether the invention described in the patent application is new. A comparison of established practice in industrialized States demonstrates that in some jurisdictions, an invention relating to a DNA fragment is regarded as being novel when this invention has not been disclosed in concrete terms in publicly known literature, regardless of whether the gene from which this fragment is taken has been disclosed.52 The requirement is that the genes to which these DNA sequences relate are isolated from their natural surroundings.53 It will now be analyzed whether such practices regarding patentability of DNA fragments are also required by TRIPS, bearing in mind that TRIPS establishes minimum standards. According to this understanding, isolation of a gene results in a novel product, irrespective of whether an isolated element (gene or gene fragment) is identical to that of a natural element. Hence, even if the naturally occuring gene has been described in the academic literature, this isolated gene is held to constitute a novel product, fulfilling the novelty requirement. In order to analyze whether the WTO member States must adopt a similar definition of what is required to meet the novelty requirement in the context of genes, it is necessary to give a more general overview of how States can define what is prior art that can defeat the novelty of an invention. The central element in determining knowledge or use is whether the invention has been accessible to the public.54 If the invention has been made accessible, the novelty requirement is not fulfilled. Different national provisions regarding novelty differ substantially between WTO member States. The most controversial national provision concerning novelty is the US Patent Act, Section 102(a), which reads: A person shall be entitled to a patent unless the invention was known or used by others in this country, or was patented or described in a printed publication in this or a foreign country.55 52 Trilateral Project 2000 (The Trilateral Project is USPTO, EPO, and the Japanese Patent Office (JPO)). 53 See Nuffield Council 2002, p. 23: “…patent offices maintain that the DNA sequences claimed in patents are not natural phenomena [as] …rights over DNA sequences do not relate to genes as they occur naturally, but rather to genes that have been isolated.” Moreover, it is held that “…isolating a gene from its natural environment is sufficient to show that a novel product has been created” (Ibid, p. 29). See also EC Directive 98/44/EC, paragraph 5.2, determining that an isolated element “…may constitute a patentable invention, even if the structure of that element is identical to that of a natural element.” 54 In W. L. Gore & Assoc. v. Garlock, Inc., 721 F.2d 1540 (1983), the Federal Circuit stated: “The knowledge or use is accessible to the public if there has been no deliberate attempt to keep it secret.” 55 Section 102(b), which will not be analyzed further, reads: “A person shall be entitled to a patent unless the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application…” (see also Chiang 2004).
The Trips Agreement, Particularly Patent Protection
This implies that knowledge or use of an invention in a foreign country does not destroy novelty. Only patenting or description by means of printing in foreign countries destroys novelty. Section 102(a) of the US Patent Act has been subject to criticism in the WTO.56 The USA responded that Section 102(a) is “…perfectly consistent with the provisions of the TRIPS Agreement that govern how the Member may define the scope of the prior art that can defeat the novelty of an invention.”57 There has been no further examination of Section 102(a) in any supervisory body of the WTO, and neither has this paragraph of the US Patent Act been brought before the dispute settlement system. Hence, this indicates that States are given a certain margin of discretion regarding the definition of novelty,58 and the individual State may adopt its own definition of the scope of the prior art that may defeat the novelty of an invention. Against this position, it might be argued that many developing States will turn to the industrialized States for clarification on how to define the legal requirements of patentability. Existing legislation and technical knowledge in other States are important for the adoption of new legislation. Some States might agree with the premises of the EC Directive that isolation may result in a patentable invention, including the novelty requirement, even if the strucure of the element as it occurs naturally is already described in the academic literature. This is no requirement under TRIPS, however, but inventions relating to microorganisms can as such not be excluded from patentability. It is therefore found that under TRIPS a State is not denied the opportunity to establish a definition of novelty that is different from the definition included in the EC Directive 98/44/EC. While the EC Directive aims at harmonization, TRIPS establishes minimum standards. Traditional knowledge and essentially derived products and processes from such knowledge must be considered as prior art. A State can include provisions in its legislation seeking to avoid patents concerning such traditional knowledge, and swiftly revoke such patents in those cases where they are erroneously granted,59 in compliance with TRIPS. 56 See IP/Q3/USA/1, Section III, responding to questions by the European Communities and their Member States, made at the 13th meeting of the Council on TRIPS, 26-30 April 1997. Four issues were raised by the European Communities: First, how Section 102(a) complies with the novelty requirement of Article 27.1. Second, how Section 102(a) complies with the prohibition against discrimination regarding place of invention of Article 27.1. Third, how Section 102(a) complies with the National Treatment of Article 3 TRIPS. Fourth, how Section 102(a) complies with the requirement of the ‘no less favorable treatment’ of imported ‘like products’ of Article III:4 of GATT 1994. The USA concludes that Section 102(a) does not favor nationals over non-nationals. 57 Ibid. 58 At the same time, it must be asked whether the adoption of legislation similar to the US Patent Act might lead to more cases of biopiracy. As has been seen, knowledge which is commonly in use, but not described in print can be considered as patentable under the US Patent Act. Moreover, it is not possible to predict the reactions from other WTO States if a law similar to the US Patent Act is adopted. 59 To avoid ’erroneously granted patents’ is identified as a ’shared objective’ by the USA in document IP/C/W/434, and the phrase clearly refers to traditional knowledge.
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Inventive step: To determine whether an invention actually represents an inventive step is a complex issue. Different legislations have various manners of expressing this criteria. In general, the inventive step criterion states that only applicable knowledge that is not obvious to a person skilled in the art, can constitiute an invention.60 When determining which knowledge is non-obvious for a person skilled in the art, the States have tended to establish rather low thresholds.61 The margin of discretion under TRIPS regarding inventive step will be examined. On the one hand, inventive step criteria cannot be so strict as to undermine the obligation not to exclude certain fields of technology from patentability under Article 27.1 of TRIPS from the national legislation. Hence, non-obvious, applicable knowledge of a technical nature can be granted a patent, provided that the other criteria are met. On the other hand, the inventive step criterion, as applied in some industrialized States as well as within the European Patent Convention, is not necessarily the most appropriate criteria for developing States. As already stated, the requirements of the EC Directive62 are different from the minimum standards established by TRIPS. Two authors conclude that if a country decides to ban all patents on naturally occurring genetic material, even if such material has been isolated and modified, such a ban will not contradict TRIPS.63 This observation has not yet been tested in the dispute settlement system of the WTO. It will be analyzed whether this observation is correct. There can be no doubt that a categorical rejection of patent protection for a whole category of inventions, such as micro-organisms, is contrary to the TRIPS Agreement. At the same time, the explicit rejection of patentability for genetic material isolated from its natural surroundings, but which has no distinct genetic composition from that found naturally,64 is not necessarily against a bona fide implementation of TRIPS. Hence, under TRIPS, a State which excludes isolated genes from patentability, provided that the genetic composition and functioning of these genes are no different from genes found
60 Nuffield Council 2002, pp. 29-30. The report finds that the US requirement, where the isolation of a gene resulting in unpredictable sequencing of base pairs of DNA molecules is sufficient for passing the non-obviousness test, is inappropriate. 61 See Tripartite Project 2000. 62 See EU Commission Directive 98/44: ‘Directive on the legal protection of biotechnological inventions’. Article 9 reads: “The protection conferred by a patent on a product containing or consisting of genetic information shall extend to all genetic material, save as provided in Article 5.1[human body], in which the product is incorporated and in which the genetic information is contained and performs its function.” See also Midtbø 2004, finding that there are relatively limited possibilities to deviate from established EC practice, and that the Norwegian assumption that a ‘stricter’ practice regarding patentability of biotechnological inventions, is possible, is difficult to justify. 63 Leskien and Flitner 1997, p. 9. 64 Specifically on patenting of DNA, see Nuffield Council 2002, p. 36, which concludes: “…as techniques have advanced, and in particular as the use of computers to identify genes have become more widespread, the eligibility for DNA sequences for patenting should have diminished.”
The Trips Agreement, Particularly Patent Protection
in naturally occuring organisms, is not acting in contradiction with its TRIPS obligations.65 It must also be noted that TRIPS, while allowing for excluding plants and essentially biological processes for the production of plants, is silent on whether the scope of the patent only extends to the invention per se, or if the scope also extends to any entity into which the invention is incorporated. Hence, TRIPS does not change States’ freedom to determine themselves under which circumstances a protected invention incorporated into another entity implies that the scope of the protection also extends into this entity. On the one hand, it is rather obvious that a mechanical thing which cannot funtion properly without the patented invention incorporated must be considered different from a plant which has a patented gene incorporated, as a plant will grow and reproduce without any assistance from a patented gene. The Canadian Supreme Court, however, has found that a plant into which a patented gene is incorporated, also falls within the scope of the patent, even if plants per se are excluded from patentability under Canadian law.66 Hence, the Supreme Court made no distinction between a mechanical thing and a living plant. At the same time, it must be asked whether there are any circumstances where a plant that has a patented gene incorporated performs so radically new functions that it must be considered that this fulfills the inventive step requirement. An example can be if a plant which only could grow in certain temperate climate zones, are able to grow in the desert after the (drought-resistant) patented gene is incorporated. Is this sufficient for the plant to represent an invention? It must initially be observed that TRIPS allows States to exclude plants per se from patentability. Irrespective of this, it will be examined whether it is possible to state in precise terms if there are any requirements that can be applied to determine if and when a plant can be regarded as an invention. While observing that the patentability of plants is a complex issue, three dimensions will be analyzed: amended appearance (color); increased yielding qualities; or increased resistance against both natural and artificial factors, such as locust or herbicides. With regard to color, it is important to note that colors have been important to determine whether the patentability criteria are fulfilled or not.67 Presently, there is no uniform approach to determine whether new color as such qualifies for patent protection.68 For plant varieties, however, appearance is highly relevant in order to determine 65 For an argument in favor of the possibility to exempt genes from patentability, see Correa 2002b, p. 530. 66 In the Monsanto v. Schmeiser case (2004 SCC 34), the majority of the Canadian Supreme Court (5-4) held: “…where a defendant’s commercial or business activity involves a thing of which a patented part is a significant or important component, infringement is established. It is no defence to say that the thing actually used was not patented, but only one of its components” (paragraph 78 – emphasis added). It is not given under which circumstances a patented gene is a ‘significant or important component’ of the plant. 67 See the German ‘red dove’ patent granted as early as 1969 (BGHZ 52, 74, 76 - Rote Taube). 68 See the disputed ‘Enola bean’ patent (US patent 5,894,079, granted 13 April 1999), granted by the USPTO on the basis of its yellow color, despite the fact that several other yellow beans
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whether a new variety exists.69 The WTO member States cannot be required to grant patent protection only on the basis on appearance of the living organism, but the new performance is decisive. With regard to increased performance, this must be measured by some objective numbers. To illustrate, is a plant which yields five per cent more actually an invention compared to the original plant? This higher yield could also be achieved by the means of traditional breeding, and not necessarily by an incorporation of a gene. In general, however, it must be considered that the performance is a relevant criteria to apply in order to determine whether a plant actually represents a new invention. With regard to resistance, the inventiveness of a plant is determined by whether it can grow under other conditions than before, such as no use of herbicides or in new topographical or climatic conditions. With regard to reduced use of herbicides, while reduced use is the general pattern,70 it is also found that reduced use of herbicides will not always be the result of the growing of transgenic plants, as resistance can be developed.71 It is easier to identify when a new plant variety has been bred than to determine when a new plant has been invented. In order to claim that an invention concerning a plant has been made, resulting in a plant with new genetic expressions, this invention must have been taken place outside of the realm of traditional plant breeding. Moreover, a plant needs to demonstrate substantially increased performance or resistance over several growing seasons. A plant which has been modified so that it can grow under very harsh conditions, such as desert soil, can have a new genetic structure which makes it eligible for patent protection – in those States which allow patenting of plants per se. While the patenting of genes and the scope of the patent is to some extent a settled issue in industrialized States, this issue is not settled in developing States. As noted above, these States are not required under TRIPS to legislate so that protection for inventions relating to micro-organisms must also extend to organisms into which the micro-organism is incorporated. Moreover, States can decide to exclude from patentability both plants and naturally occurring genetic material.
exists, both in the fields and in gene banks. On the process of extending the ‘re-examination period’, see ETC Group 2005: “What happened to the Enola Bean Patent Challenge?” <www. etcgroup.org/upload/publication/41/01/genotypeenola05.pdf#search=%22enola%20patent% 202006%22>. 69 See UPOV’s Test Guidelines: <www.upov.int/en/publications/tg-rom/introduction.htm>: “The examination generates a description of the variety, using its relevant characteristics (e.g. plant height, leaf shape, time of flowering)…” 70 As an example, from China it is reported that pesticide use over the past five years has been reduced by approximately 24 to 63 kg per hectare, as well as global pesticide reduction of 22.3 million kilograms; see: Spiked 2003. 71 See Altieri 2001.
The Trips Agreement, Particularly Patent Protection
Industrial applicability: This criteria says that a specific use of the invention must be identified.72 While the ‘specific use’ requirement seems rather strict, it does not, however, exclude that a product patent will extend to cover new uses, also if these uses are not specified in the original patent.73 Hence, a person who seeks to exploit the new uses must have the permission of the patent holder. TRIPS does not require that also new uses must fall within the scope of the patent. Recent clarifications have been made in the EPO regarding patentable biotechnological inventions.74 Such inventions are defined as biological material, including genes, which are “…made available for industrial production.”75 By stating that the invention must be ‘made available for industrial production’ this criteria must be understood as being relatively strict, as a specific use must be proven.76 A relevant question is whether States may define ‘industrial applicability’ in a manner which is adapted to their own needs at their respective levels of development. While it has been seen above – under novelty and inventive step – that TRIPS does not require States to follow the standards established by the industrialized States, as exemplified by EC Directive 98/44/EC, it will be analyzed to which exent States are free to use their own definitions of industrial applicability in the field of genetic inventions. In other words, can there be a deviation from an established understanding of industrial applicability such as the one formulated by the EPO above? Genes to which an invention applies and hence are meeting the novelty and inventive step requirement, and which are made available for industrial production, can be found to be eligible for patent protection. Hence, it seems that there is less flexibility in constructing this criterion, compared to the two other criteria. At the same time, the State can construct the industrial applicability criterion in a manner so that the new and applicable knowledge resulting from local and domestic activities might also be granted a patent.77 Hence, it is possible to adapt also the industrial applicability criterion in a manner where it serves the needs of the domestic producers, also in the field of agriculture. At the same time, for the sake of predictability, the same standards regarding patent eligibility and legal criteria that also apply to inventions presented by corporations apply to inventions made by individuals.78
72 In the USPTO Utility Examination Guidelines (USPTO 2001) p. 1098, the criteria are specific utility, substantial utility and credible utility. The utility must be ‘readily, apparent and wellestablished’ (ibid). 73 See Nuffield Council, p. 31. The Indian Patents (Amendment) Act explicitly excludes the extention of the patent scope unless there is an “enhancement of the known efficacy of that substance” in its new uses (see paragraph 3d). 74 EPC Implementing Regulations Part II, Chapter 6: ‘Biotechnological inventions’. 75 Rule 23c (extracts). 76 Nuffield Council 2002, p. 31 notes that just describing a ‘biological function’ is not enough. 77 See WIPO 2004b, paragraph 17, where it is reported that in 2002 the Chinese Patent Office granted 4479 patents relating to traditional medicines. 78 Another, totally distinct issue is what the State wants to do to give recognition and positive protection to holders of traditional knowledge. Legislation for this purpose which does not
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Additional requirements for determining patentability is not allowed: An invention which fulfills the three legal requirements is entitled to patent protection. The three legal criteria can be given a more precise content by national legislation, and only the introduction of criteria that are manifestly incompatible with TRIPS obligations poses a specific problem. As an example of the latter, developing States want to include other substantive criteria for determining patentability, such as disclosing the source and country of origin,79 evidence of benefit-sharing,80 or the prior informed consent.81 These requirements cannot be used as a basis for the rejection of patents, however, in accordance with the TRIPS Agreement. They have been met with resistance from industrialized States and the biotechnology industry.82 While strongly rejecting any additional criteria as a condition for the grant of patents,83 these States and industries encourage that the source of the original material is indicated in the patent application. In accordance with other treaty obligations, these provisions can be included in national legislation, but cannot be used as a basis for denying patents. 8.2.3
Exclusions from Patentability
Article 27.2 and 27.3 are the two provisions which identify what is possible to exclude from patentability. However, it must be noted that States which have explicitly excluded
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affect the implementation of TRIPS, meaning that TRIPS provisions cannot be given effect, is not in conflict with TRIPS obligations. IP/C/W/429 from India, Thailand, Pakistan and seven Latin American States; see also IP/ C/W/356 from Brazil on behalf of a group of developing countries, document IP/C/W/403 from India, Thailand and seven Latin American States, document IP/C/W/404, which is a joint communication from the African Group. IP/C/W/442 from India, Thailand and seven Latin American States. IP/C/W/438 from India, Thailand, Pakistan and six Latin American States. For the position of EC and its members, see IP/C/W/ 254; for the position of the USA, see IP/C/W/ 434. Norway, however, has proposed a new paragraph 2abis of the TRIPS Agreement which ixcludes a “disclosure obligation”, including the origin of genetic reserves. As stated in paragraph 7 of document 1P/c/w/473, “...a breach of the disclosure obligation should be treated as a formal error, i.e. the application should not be processed until the required informantion has been submitted. Where appropriate, the application could eventually be rejected. In this context, it is interesting to observe the Patent Law Treaty, adopted in 2001. Article 2(2) reads: “Nothing in this Treaty or the Regulations is intended to be construed as prescribing anything that would limit the freedom of a Contracting Party to prescribe such requirements of the applicable substantive law relating to patents as it desires.” Contrary to this principle, the Draft Substantive Patent Law Treaty seems to indicate a different position with regard to determining the requirements for patentability. Article 13.3 of the Draft on ‘Prohibition of other requirements’ reads: “No Contracting Party may require compliance with any requirement relating to the examination of an application or the grant of a patent on a claimed invention different from or additional to the requirements provided for in paragraph (1).” (See SCP/10/2 of 30 September 2003).
The Trips Agreement, Particularly Patent Protection
living organisms as they exist in nature from patentability, as they are not considered inventions within the meaning of Article 27.1, have not been criticised for such provisions, as long as micro-organisms are not explicitly excluded.84 In one legislation, the provions on micro-organism is included as a ‘transitional provision’.85 Hence, TRIPS does not allow for a categorical exclusion of living organisms from patentability, by not constituting inventions in accordance with Article 27.1. Article 27.2 allows for exclusion from patentability inventions whose commercial exploitation must be prevented in order to “…protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment…”86 This section will analyze the scope of this provision, in order to find out which requirements that must be met in order to exclude an invention from patentability. The emphasis will be on the phrase ‘protect human, animal or plant life or health or to avoid serious prejudice to the environment’. Does this phrase merely exemplify what is meant
84 Article 10.IX of the Brazilian Industrial Property Law (Law No. 9.279) reads: “The following shall not be considered inventions or utility models:[…] all or part of natural living beings and biological materials found in nature or isolated therefrom, including the genome or the germ plasm of any natural living being, and any natural biological processes.” Article 18.III reads: “The following shall not be patentable: […] living beings, in whole or in part, except for transgenic microorganisms meeting the three requirements of patentability – novelty, inventive step and industrial application – in accordance with Article 8 and which are not mere discoveries.” An explanatory comment to Article 18 states: “For the purposes of this Law, transgenic microorganisms mean organisms, except for plants or animals in whole or in part, that due to direct human intervention in their genetic composition express a characteristic that cannot normally be achieved by the species under natural conditions.” This has not been challenged by the WTO, even if this exclusion of ‘natural living material’ was informed about in the Secretariat’s Document to the Trade Policy Review Committee (WT/TPR/S/140, p. 105 and p. 107). This is not brought up in the review (see WT/TPR/ M/140). In a previous review of Brazil, other aspects of the Industrial Property Act is criticised by the USA (WT/TPR/M/75, paragraph 76), particularly approval of patents prior to issuance, as well as local working requirements as these “…do not appear to be in conformity with TRIPS requirements”, but nothing is said about Article 10.IX. 85 In the Andean Community Decision No. 486 (regarded as law in the five member States) states in Article 15(b): “The following shall not be considered inventions: “any living thing, either complete or partial, as found in nature, natural biological processes, and biological material, as existing in nature, or able to be separated, including the genome or germ plasm of any living thing.” Hence, genes – also as ‘separated’ from nature – are defined outside of the scope of Article 27.1 of TRIPS. The second ‘transitional provision’ states, however: “Microorganisms shall be patentable until other measures are adopted as a result of the examination provided for in TRIPS article 27 3(b).” 86 The full text of Article 27.2 reads: Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre€public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.
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by ‘ordre public and morality’, or does it actually extend the scope of ‘ordre public and morality’. Ordre public was deliberately chosen instead of ‘public order’ as the former relates more directly to public policy and its application is stricter.87 Morality depends on the given culture in a certain country or region.88 An intellectual property law author notes that the exclusion provisions, ordre public and morality, are given little emphasis.89 Before an analysis of the specific phrase is undertaken, it is necessary to have a more general understanding of this provision which allows for excluding certain inventions from patentability. First, the possible application of Article 27.2 on inventions relevant in the context of this book includes the possible introduction of ‘genetic use restriction technology’ (GURT), also called ‘terminator technology’ and ‘sterile seeds’.90 Some find that such inventions would fall under the scope of Article 27.2.91 It seems reasonable to state that a plant which does not have the ability to reproduce, because of the insertion of a particular gene, is contrary to the morality in many communities, not only in ’traditional’ communities. Therefore, an exclusion from patentability is one possibility, but a decision by the relevant regulatory authority is more appropriate, as this is done by the body with the specific mandate and relevant competence. Second, two requirements must be fulfilled for Article 27.2 to apply. First, the prevention of commercial exploitation must be necessary to ensure the protection of ordre public or morality.92 Second, the exclusion from patentability must not be made merely because such exploitation is prohibited by national law. These indicates a rather high threshold for applying Article 27.2. There have not been any rulings from either the Dispute Settlement Panel or Appellate Body that could shed some light on what could be excluded from patentability under Article 27.2. It is necessary to analyze the phrase ‘protect human, animal or plant life or health’ which is recognized as a basis for exclusion in Article 27.2 of TRIPS in more detail. This analysis is undertaken in two steps. First, by asking whether it is a reasonable understanding of Article 27.2 that one or both of these phrases goes beyond the understanding of ‘morality’ and ‘ordre public’. Second, by asking whether the phrase ‘avoid serious prejudice to the environment’ must be understood to establish a higher threshold for its application than the phrase ‘protect life or health’. To the first question, the crucial issue is whether Article 27.2 establishes four bases for excluding certain inventions, or if there are only two bases, and then two examples 87 88 89 90 91 92
Gervais 2003a, p. 222. Ibid, p. 223. Llewelyn 2005, pp. 39-43. See Chapter 2.3.5. GUR technology is temporarily withdrawn from the market. Crucible Croup 2001, vol. I, p. 37. On the necessity test under Article 27.2, see Pires de Carvalho 2005, pp. 209-211. He finds on p. 210 that provided that it is necessary to exclude an invention from commercial exploitation, other ways than excluding from patentability should be chosen if such alternatives are available.
The Trips Agreement, Particularly Patent Protection
or these two bases.93 The term ‘including’ preceeding the phrase ‘protect human, animal or plant life or health or to avoid serious prejudice to the environment’ might qualify this latter phrase. On the one hand, the term ‘including’ could imply that this phrase is subject to either ordre public or morality. Stated differently, the term ‘including’ implies that the phrase does not represent an individual basis for exclusion, but that it merely serves to exemplify what might fall under one of the two categories of ordre public or morality. On the other hand, the interpreter shall give meaning and effect to all terms of a treaty.94 Therefore, it is initially found that the phrase ‘protect human, animal or plant life or health or to avoid serious prejudice to the environment’ implies that the scope of Article 27.2 is wider than what it would have been if this latter element of the provision was not included. To the second question, the phrase ‘serious prejudice’ establishes a rather high threshold for being applied as a basis for an exclusion from patentability, particularly by the term ‘serious’. This term indicates that the negative impacts resulting from the commercial exploitation of the invention must be substantial. There is no similar requirement with regard to the phrase ‘protect life or health’. Therefore, it is found that there is a lower threshold for excluding an invention from patentability if this is necessary to prevent commercial exploitation in order to ‘protect human, animal or plant life or health’, than to ‘avoid serious prejudice to the environment’. In order to bring more clarity to these two clarifications, there will be an analysis of the jurisprudence developed in relation to the treaty which contains a provision most similar to Article 27.2 of TRIPS. The wording of Article 27.2 is based on the European Patent Convention (EPC) Article 53(a). This paragraph has never been found by any organ of the European Patent Office to justify an exclusion from patentability.95 93 Gervais 2003a, p. 222 refers to the phrase ‘protect human, animal or plant life or health’ as an example. 94 See also US – Gasoline (WT/DS2/AB/R), p. 23, footnote 45, referring to ICJ cases and legal authors. 95 Article 53(a) has been invoked five times, of which three involve plants: T 0320/87 (Lubrizol Genetics Inc., OJEPO 1990, p. 71), T 0356/93 (Plant Genetic System NV, OJEPO 1995, p. 345) and G 0001/98 (Transgenic Plant/Novartis II, OJEPO 2000, p. 111.) See Yamin 2003, particularly pp. 29-33 and Llewelyn 2005 for details. In T 0356/93, the Technical Board of Appeal analyzed both the concepts of ‘morality’ and ‘ordre public’, in paragraph 17 and 18, respectively. With regard to morality, plant biotechnology was found in paragraph 17.1 to be no “…more contrary to morality than traditional selective breeding…” and that the crucial issue was the “…destructive use of these techniques” (ibid). When examining the ‘ordre public’ exception, the TBA found that Article 53(a) “…constitutes a bar to patentability for inventions the exploitation of which is likely to seriously prejudice the environment” (paragraph 18). The TBA concluded that ‘…it would be unjustified to deny a patent under Article 53(a) EPC merely on the basis of possible, not yet conclusively-documented hazards” (paragraph 18.7). On this ruling, see Llewelyn 1995 and Dutfield 2003b, the latter finding on p. 161 that this was a “…rather narrow interpretation of the exceptions…”. The EPO Guidelines states with regard to Article 53(a) that this paragraph applies to “…invention so abhorrent that the grant of patent rights would be inconceivable.” See also V0008/94, 1994 OJEPO 1995, p. 388, paragraph 6.2.1. For an alternative position, referring to national courts, see ECJ’s reasoning
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There are, however, certain differences between Article 27.2 TRIPS and Article 53(a) of the EPC. First, the former is explicitly on ‘exclusion from patentability’, while the latter is on ‘exceptions to patentability’. Second, Article 27.2 of TRIPS lists more reasons for exclusions, by adding the phrase ‘including to protect human, animal or plant life or health or to avoid serious prejudice to the environment’ after ‘ordre public and morality’. Third, Article 53(a) of the EPC includes the term ‘publication’, and does not require the ‘exploitation’ to be commercial. Of these three differences, the second is interesting to study in more detail. In line with what was found above, it will be examined whether the TRIPS’ exclusion from patentability (‘protect human, animal or plant life or health or to avoid serious prejudice to the environment’) imply that Article 27.2 applies to more situations compared to Article 53(a) of the EPC. The terms ‘morality’ and ‘ordre public’ do not in themselves include environmental concerns. The phrase ‘seriously prejudice the environment’ is, however, found by the Technical Board of Appeal of the EPO to fall within the scope of Article 53(a).96 Therefore, EPO has interpreted Article 53(a) of the EPC in line with Article 27(2) of TRIPS, but the EPO has still not explicitly recognized ‘protect human, animal or plant life or health’ as a legitimate exception. Therefore, Article 27.2 of TRIPS has a wider scope than Article 53(a) of the EPC, as also interpreted by the EPO, as the latter has still not elaborated on the phrase ‘protect human, animal or plant life or health’.97 This emphasis on environmental concerns in TRIPS is also confirmed by the preamble of the WTO Agreement (‘protect and preserve the environment’), which can be applied when interpreting Article 27.2.98 In sum, the analysis of the jurisprudence of the EPO does not directly counter the finding made above that the environmental elements of Article 27.2 of TRIPS implies that the scope of this provision is wider. The jurisprudence, however, does not clarify whether the phrase ‘protect human or plant life or health’ applies to more situations than the phrase ‘avoid serious prejudice to the environment’. Nevertheless, while it is found that there might be four bases upon which an exclusion from patentability can be made, the other elements of Article 27.2 of TRIPS must also be observed in order to identify the scope of this paragraph, namely the requirements of ‘necessity’ and ‘exclusion cannot be made merely because of national prohibition’. These two requirements will now be analyzed.
in paragraphs 37-39 of C-377/98. For an overview on ordre public and morality in the EPC, see Moufang 1998. 96 Ruling by Technical Board of Appeal in T 0356/93 – OJEPO 1995, p. 345, paragraph 18: “…Article 53(a) EPC constitutes a bar to patentability for inventions the exploitation of which is likely to seriously prejudice the environment.” 97 See also Van Overwalle 2005, p. 221. 98 Not even the EU Commission Directive 98/44 includes strong environmental principles, but is referring to TRIPS Article 27.2 in recital paragraph 36; see also paragraphs 37-39. The position that genuine and sufficiently serious threat to the environment falls within ordre public is confirmed by Advocate General Jacobs in the Order of 14 June 2001 in ECJ case C- 377/98, paragraph 109.
The Trips Agreement, Particularly Patent Protection
The WTO’s dispute settlement system has not clarified the term ‘necessity’ in TRIPS. When clarifying GATT 1994, a panel stated: “It was not the necessity of the policy goal that was to be examined [but] …whether these inconsistent measures were necessary to reach the policy goal.”99 According to WTO jurisprudence, if less inconsistent measures are available, and these are equally effective in reaching the policy goal, these less inconsistent measures shall be chosen.100 Article 27.2, however, must also be read in light of, inter alia, Article 8.1.101 If there are no alternative measures that would achieve the same end (including leaving the decision to the regulatory authorities), Article 27.2 may be applied, provided that the other requirements are met. The phrase ‘exclusion is not made merely because the exploitation is prohibited by their law’ has not been clarified by the WTO dispute settlement system. This element of Article 27.2 is included in order to avoid that national legislation is used in an inappropriate way. In order to identify the meaning of this phrase, two alternative interpretations are introduced. First, when an exclusion from patentability is justified based on ordre public and morality, is to be determined by the relevant WTO body alone, without assessing the national legal provisions. Second, the national legislation is given considerable weight in determining whether the exclusion from patentability is justified, but is not the only element of relevance to the process of finding whether Article 27.2 applies in a particular situation. Deference to national law is an established principle in the WTO.102 This applies also to the sensitive issues of ordre public and morality. This indicates that the two requirements of necessity and ‘exclusion is not made merely because the exploitation is prohibited by their law’ can be subject to a certain deference by the WTO system. At the same time, the wording of Article 27.2 implies that it has a limited application. As Article 27.2 has not been interpreted and applied in the dispute settlement system, however, there is a weak basis for answering unequivocally. Article 27.3: This paragraph concerns the possible exclusion from patentability of certain products. For the purpose of this study, Article 27.3(b) is the most relevant: Members may also exclude from patentability […] plants and animals […] and essential biological processes for the production of plants and animals…
99 US – Gasoline (WT/DS2/R), paragraph 6.22. In Korea – Beef (WT/DS161/AB/R) paragraph 164, the Appellate Body found that the ‘necessity test’ also must include a ‘proportionality test’. 100 See EC – Asbestos (WT/DS135/AB/R), where the Appellate Body concluded that no other measure was available (paragraph 174). 101 Matsushita et al. 2003, p. 423, discussing the application of Article 27.2 under the section on food, referring to Article 8.1 of TRIPS and paragraph 172 of the EC – Asbestos (WT/DS135/ AB/R – brought by Canada), identifying alternative measures through a weighing and balancing, including which of the measures that would achieve the same end and also be less restrictive of trade. See also Rott 2002, p. 231. 102 See Pauwelyn 2003a and Davey 2003.
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Also with regard to the possibilities for the protection of plants, industrialized States are less interested in making use of this possible exclusion from patentabilty in TRIPS.103 Article 27.3 is – as is Article 27.2 – an optional exclusion from patentability. The analysis below identifies the minimum requirement for being in compliance with Article 27.3(b). Plants: If plants and animals are not explicitly excluded from the scope of patent protection in national legislation, inventors can avail themselves of patent protection, provided that the eligibility principle (what is described in the patent claims as an invention), and legal criteria (novelty, inventive step and industrial applicability) are met. As shown by the IPR Commission, only a quarter of the developing countries explicitly exclude plants and animals from patent protection in their draft patent legislations.104 Plant varieties: The prohibition against double protection (patent and plant breeders’ rights on the same plant variety) was not included in UPOV 1991, unlike UPOV 1978, where such double protection was prohibited. The Enlarged Board of Appeal of the European Patent Office has acknowledged patent claims embracing plant varieties, if “... specific plant varieties are not individually claimed…”105 TRIPS allows States to exclude plant varieties from patent protection if this is provided in their laws. Micro-organisms: The distinction between micro-organisms, which cannot be excluded from patent protection, and plants, which can be excluded, seems relatively straight-forward. The problem of making clear distinctions appear, however, when a gene is patented, and then incorporated into a plant, as analyzed in Chapter 8.2.1 above.106 Moreover, there is no definition of micro-organisms, and the States can make their own definition of what constitiutes a micro-organism. Whether this allows for excluding DNA sequences and genes per se is the most relevant issue. Naturally occuring genes as such should not be subject to patenting.107 TRIPS allows the exclusion of natural living material, provided that some form of protection for micro-organisms is provided.
103 See EC Commission Directive 98/44, Article 9, The US Supreme Court Decision in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l., Inc. (534 US 124) and the Canadian Supreme Court Decision in Monsanto v. Schmeiser (2004 SCC 34). 104 IPR Commission 2002, p. 160. 105 Second order (‘conclusion’) of G 0001/98 by the Enlarged Board of Appeal of the European Patent Office (Transgenic Plant/ Novartis II of 20 December 1999) EPO Official Journal 2000, p. 111. 106 See the analysis on ‘inventive step’. In Monsanto v. Schmeiser (2004 SCC 34), paragraphs 79 and 80, the Canadian Supreme Court determined the protection extended to the plant into which the protected gene had been incorporated, even if they admitted that this was an ‘expansive doctrine’. 107 See Pires de Carvalho 2004, noting on p. 701 that “[g]enes are scientific discoveries”, but arguing against such patents on the basis of the ‘metering function’ of patents.
The Trips Agreement, Particularly Patent Protection
8.2.4
Exclusive Rights
Article 28 is the main TRIPS provision for identifying the material content of the exclusive rights of the owner. The exclusive rights of the patent lasts 20 years from the filing date of the patent, in accordance with Article 33 of TRIPS.108 According to Article 28.1(a) TRIPS, the following rights are conferred to the patent holder for product patents: making, using, offering for sale, selling or importing.109 For process patents, regulated in Article 28.1(b), the use of the process, as well as using, offering for sale, selling or importing the product obtained directly by that process, are the exclusive rights of the patent holder. Hence, the act of using a process in one State and exporting the resulting product to another State is regulated by TRIPS. Patent rights generally do not extend to excluding private and non-commercial use, as well as experimental use.110 Therefore, the understanding of ‘making’ and ‘using’ has been reserved to industrial or commercial acts. TRIPS did not change that. Therefore, in principle, there are no explicit provisions in the TRIPS Agreement stating that the private, non-commercial use and use for research and experimentation must fall within the scope of patent protection. Of particular relevance in the context of this study, is whether TRIPS provides any help in identifying the scope of the patent, that is if the patent on a micro-organism also extends to any organism into which this patented element is incorporated. The Monsanto v. Schmeiser case provides also here one interpretation that the patent scope should extend to the ‘thing’ into which the patented component is inserted.111 It should be noted that the majority of the Canadian Supreme Court acknowledged that this is an ‘expansive doctrine’ in the understanding of the patent scope.112 The growing of a plant which contains a patented genetic element was considered by the Canadian Supreme Court as ‘use’. As Schmeiser was also in charge of his own company, he was considered as a commercial actor, acting in competition with the Monsanto company.113 The minority held that the patent claims do not extend to use by
108 Article 33 of TRIPS reads: “The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date.” Under plant variety protection, the period of protection starts at the date for the grant of breeders’ rights. 109 With regard to the prohibition against import of a protected product, whether the product or only the process is patented, TRIPS does not prohibit such import if the products were placed legally on the market in another State by the right holder of with his consent; see footnote 13 to Article 51 TRIPS. 110 The US Court of Appeal for the Federal Circuit has recently decided, however, that experimentation also falls under the scope of the patent, see Court of Appeals for the Federal Circuit: Madey v. Duke University, Petition for a Writ of Cert., 307 F. 3d 1351; see also South Centre and CIEL 2004, p. 8. 111 Monsanto v. Schmeiser (2004 SCC 34), paragraph 78. 112 Ibid. 113 Hence, the private use exception (see Chapter 8.2.5 below) did not apply.
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resowing, but to making new genetically modified plants in the laboratory, as use must “…be limited to the subject matter of the invention.”114 Also in this analysis, a distinction must be drawn between a mechanical thing, where the parts have to be assembled by the means of some human intervention, on the one hand, and living organism with the ability to reproduce, on the other. A plant is a unique composition that will grow and reproduce also without any inserted genes that might modify a plant’s genetic functions or expressions. A thing, on the other hand, would be useless without the specific patented component inserted. Moreover, patented components cannot become part of a thing by adventitious spread. A patented gene, on the other hand, can be spread by the means of pollen to new fields and plants.115 A farmer who is made cognizant of the fact that he is growing transgenic crops without prior knowledge, and has therefore not sought to benefit from this, can nevertheless be considered to use the invention within the meaning of Article 28.1 of TRIPS. At the same time, such innocent farmers, referred to as ‘innocent bystanders’, can be exempt from any liability by including a provision on innocent bystanders in the patent law, in accordance with Article 30 TRIPS, as will be more elaborated upon in Chapter 12.2.2. A different case would arise if it is possible to contain the modified gene which is incorporated in the plant so that it cannot spread, and moreover, if all the growers of the plant containing this gene have entered into some kind of contractual relationship with the patent owner. In such situations, the exclusive rights of the patent owner will extend to use by growing. Hence, other farmers than those who have obtained the seeds are exluded from the use. In such situations, a strong commercial relationship will be established between the company as a provider and the farmer as a user. An infringement of the patent would arise if one farmer sells the patented seeds to other farmers, who could then resell further. In such circumstances, Article 47 of TRIPS, found in Part III,116 on the right of information states that the judicial authorities shall have the authority to order the infringer to inform the right holder of others involved in the infringing activities. Article 28.2(b) of TRIPS extends the protection conferred on a process by also including patent claims on products ‘obtained directly by that process’. It is necessary to understand how TRIPS regulates eligibility of product and process patents, respectively. 114 Monsanto v. Schmeiser (2004 SCC 34), paragraph 148. Moreover, in paragraph 152, the minority held that the test was “…whether the user has deprived the patentee of his monopoly over the use of the invention as construed in the claims.” 115 Several reports on the transfer of modified genes through pollen contamination have been issued, highlighting both the responsibility of the holder of the patent on the protected gene, as well as the problem of ‘innocent bystander’ (implying that a farmer might have patented genes on his farms without his knowledge). On the Mexico contamination case, see the 2003 brief by ETC Group: “Contamination by genetically modified maize in Mexico much worse than feared” On more general studies, see European Environmental Agency 2002 and The Royal Society of Canada 2000, particularly Chapter 6, part 2. Similar concerns are also raised in a study by the US National Research Council 2002, p. 237. 116 Part III of TRIPS ‘(enforcement of intellectual property rights’) has specific provisions on what States are required to do in order to address situations of infringements, but it contains no substantive provisions.
The Trips Agreement, Particularly Patent Protection
Before the entry into force of TRIPS, many national legislations only recognized process patents in the field of biotechnological inventions, explicitly excluding product patents. According to TRIPS, both process and product patents must be granted. It can be difficult to prove an infringement of a process patent. Under Article 34.1 of TRIPS, those rights holders who have obtained a process patent only, shall have the possibility to try an alleged infringement of the patent before the courts if the patented process and the alleged infringing process results in identical products.117 Similarity between products is not sufficient for Article 34 to apply.118 In addition to the fact that the products must be identical, there are two circumstances where Article 34.1 applies. The States shall provide that a product is deemed to have been obtained by the patented process in at least one of these circumstances: “if that the product obtained by the patented process is new”; or “if there is a substantial likelihood that the identical product was made by the process, and the owner of the patent has been unable through reasonable efforts to determine the process actually used.”119 Hence, the TRIPS Agreement strengthens the possiblilities of holders of process patents to exercise their exclusive rights in relation to alleged infringers. A State must include all acts listed in Article 28.1 in order to act in compliance with TRIPS. The possible flexibility lies in how making and using are defined in the legislation, and how this is interpreted by the courts. TRIPS does not change the possibilities of States to include in their legislation experimental exemptions and private, non-commercial use. 8.2.5
Exceptions and Limitations
The difference between this section and section 8.2.3 above (‘Exclusions from patentability’), is that the current section analyzes how to address granted patents. The above section analyzed under which circumstances it is possible to reject the patent in the first place. Several provisions of TRIPS allow for making exceptions and limitations on the excecise of the rights. The most important will be analyzed first. Article 30 reads: Members may provide limited exceptions to exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the pro-
117 Article 34.1 of TRIPS reads (extracts): “…if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process…” 118 See UNCTAD/ ICTSD 2005, p. 499. 119 To assist in the efforts of determining infringements, the ‘doctrine of equivalence’ is useful (see Scripps Clinic and Research Foundation v. Genentech, Inc., 927 F.2d 1565, 18 USPQ 2d 1001). This doctrine establishes the requirements to determine whether an infringement of a patent exists. In order to determine whether a patent has been infringed (literal infringement), every element of the patented claim must be found in the infringing device (Bay Area Intellectual Property Group; see: <www.bayareaip.com/IPinfo/Patents/Non-Provisional/ Non_Provisional.htm#DOE.>).
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tected material and do not unreasonably prejudice the legitimate interests of rights holders, taking account of the legitimate interests of third parties.
From the wording, there are three requirements, all of which must be fulfilled: – The exceptions must be limited. – The exceptions shall not unreasonably conflict with a normal exploitation of the protected material. – The exceptions shall not unreasonably prejudice the legitimate interests of right holders, taking account of the legitimate interests of third parties. All three requirements raise interesting questions of interpretation. One panel report has analyzed the scope of these requirements, emphasizing that “…Article 30’s very existence amounts to a recognition that the definition of patent rights contained in Article 28 would need certain adjustments.”120 Hence, there can be situations where it is legitimate to limit the enjoyment of the right as recognized in Article 28, but Article 30 has only been interpreted to allow for limited exceptions, based on economic considerations. In addition to the first requirement that the exceptions must be limited, this panel identified, with regard to the second and third requirement, that the crucial issue is whether patent owners are able to “…extract economic value from their patent”121 and “…claim a ‘legitimate interest’ in the economic benefits…”122 The third requirement of Article 30 includes the terms ‘third parties’ and ‘legitimate interests’. While the latter has been clarified,123 the former has not been appropriately clarified. Each of them will now be analyzed. Third parties: With the caution that must be exercised when seeking to clarify an element of a multilateral trade agreement that has not been clarified by the WTO’s dispute settlement system, there will now be an analysis of how the term ‘third parties’ is to be understood. Particularly for the purposes of this book, an appropriate understanding of this term is important. More specifically, will only commercial competitors to the patent owner be understood as third parties, or can also the users of the patented products or processes be understood as third parties? To provide one example from the field of 120 Canada – Pharmaceuticals (WT/DS114/R) paragraph 7.26. See also the position of the EC with regard to the applicability of Article 30 (IP/C/W/280, paragraph 14): “…Article 30 amounts to a recognition that the patent rights contained in Article 28 (‘Rights Conferred’) may need to be adjusted in certain circumstances. The provisions of Article 30 should be fully respected, and be read in light of Article 7 and 8 […]. They should not be interpreted as allowing for any substantial or unjustified curtailment of patent rights. However, the EC and their member States are not in principle opposed to exceptions being made, for example, for purposes of research…” 121 Ibid, paragraph 7.56. 122 Ibid, paragraph 7.61. 123 Ibid, paragraphs 7.60 through 7.83, in which the Panel analyzes the third requirement of Article 30, focusing on the term ‘legitimate interests’ and not on the term ‘third parties’, but see paragraph 7.68, which analyzes the term ‘third parties’ in the context of the EC’s position.
The Trips Agreement, Particularly Patent Protection
agriculture, are farmers third parties which may hold legitimate interests that are to be taken into account? The Panel in Canada – Pharmaceuticals did not correct the EC’s view that the use of the term ‘third parties’ only refers to other patent owners.124 Canada held that “…general societal interests […] were within the ambit of the term ‘third parties’…”125 Based on the principle of judicial economy,126 however, to clarify the term ‘third parties’ was not considered necessary, as the clarification of the term ‘legitimate interest’ resulted in the finding that all the three requirements of Article 30 were met in favor of Canada. As none of the parties to this dispute made an appeal, the Appellate Body was not given an opportunity to uphold, modify or reverse the findings of this Panel.127 There are three relevant arguments derived from this. First, this Panel did not explicitly state that the term ‘third parties’ must be understood only as other patent owners. Second, it never argued against the Canadian position that ‘general societal interests’ are within the ambit of the term ‘third parties’. Third, the principle of judicial economy implies that an elaborate understanding of the term ‘third party’ was not necessary for understanding the term ‘legitimate interests’, which was the crucial term in the dispute. No WTO body has therefore challenged the position that general societal interests can be taken into account within the term ‘third party’. That the interests of third parties are to be taken into account is also in compliance with the object and purpose of TRIPS, which are expressed, inter alia, in Articles 7 and 8.128 Public interests in general and farmers’ interests in particular fall within the ‘legitimate interests of third parties’, which can be taken into account when identifying the scope of the legitimate exceptions. Legitimate interests: It will now be examined whether there are any principles of the report in Canada – Pharmaceuticals which are relevant to this study, addressing the agricultural sector. This panel primarily analyzed whether ‘legitimate interests’ is a wider concept than ‘legal interests’, and concluded in the affirmative.129 It identified the period before a patent expires, as well as when generic products can obtain necessary regulatory approvals for subsequent marketing.130 This panel confirmed that the scope of Article 30 cannot be extended too far,131 but also based their finding that “Article 27 does not
124 Ibid, paragraph 7.62. 125 Ibid, paragraph 7.67. 126 This principle implies that there is no need to interpret and apply more provisions than those needed to solve the specific dispute. 127 See DSU Article 17.6 and 17.13 on the mandate of the Appellate Body, addressing issues of law only. 128 See Maskus and Reichman 2004, p. 307, holding that “…states cannot be presumed to have surrendered sovereign police and welfare powers in the course of intellectual property standard setting…” 129 Canada – Pharmaceuticals (WT/DS114/R), Article 7.73. 130 Ibid, paragraphs 7.60-7.83. 131 Ibid, paragraph 7.82.
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prohibit bona fide exceptions to deal with problems that exist only in certain product areas”132 on Article 30. The legitimate interests of the right holder shall not be prejudiced, and the legitimate interests of third parties shall be taken account of. It must be emphasized that Article 30 applies to national legislation and specific provisions in this legislation, not to individual cases to be determined by the patent office or courts. The report which has dealt most extensively with the scope of Article 30, confirms that the public interest shall not be disregarded. As this dispute appeared between two industrialized States, such public interest considerations must also be given emphasis in the context of TRIPS implementation in developing States. Article 31: Article 31 on ‘other use without the authorization of the right holder’, is also of importance. This article sets down several conditions for when the national authorities, on a case-to-case basis, can determine to permit another actor than the patent holder to make available the patented product, including that ‘the right holder shall be paid adequate remuneration’ (31(h))133 and that ‘such use shall be authorized predominantly for the supply of the domestic market’ (31(f)).134 As this is only one of several conditions for applying Article 31, the granting of compulsory licenses implies a lengthy and costly process. Article 31 identifies six situations when compulsory licenses can be granted: – the right holder refuses others to obtain authorization for use (Article 31(b)); – emergency and extreme urgency (Article 31(b)); – public non-commercial use (Article 31(b)); – anti-competitive use (Article 31(k)); – dependent patent (Article 31(l)); – when producing for a country which has no production capacity (Article 31bis). Compulsory licenses are frequently considered in the context of medicines, but very rarely in the field of patented biotechnology used in agriculture. Therefore, compulsory licenses are no ‘panacea’ but can be applied if no other option is available, although they are of relatively limited importance in the specific context of this book. Among the five 132 Ibid, paragraph 7.92. In the same paragraph, however, the panel continues: “It is quite plausible, as the EC argued, that the TRIPS Agreement would want to require governments to apply exceptions in a non-discriminatory manner”, an observation criticized by Howse 2002, as there is no basis for interpreting the exceptions provisions of TRIPS in a ‘non-discriminatory manner’. 133 See also Article 44.2, in which the WTO members may limit the remedies available against government use or third party use authorized by governments, to payment of remuneration in accordance with 31(h). 134 Note that Decision (WT/L/641) of 6 December 2005 includes a new Annex to the TRIPS Agreement, resulting in a new Article 31bis, in accordance with the decision on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, adopted 30 August 2003 (WT/L/540), in order to allow for the granting of compulsory licenses to permit export of pharmaceutical products to States with insufficient manufacturing capacities. These amendments will apply to pharmaceutical products only. It will not directly impact on the issues addressed in this book.
The Trips Agreement, Particularly Patent Protection
situations, public, non-commercial use is of most relevance in the context of this book,135 but also emergency and extreme urgency can be of relevance. There are strict conditions for determining when Article 31 is appropriately applied. Under Article 31(b), however, the time requirement136 does not apply in certain situations, more specifically situations of emergency and extreme urgency and public, non-commercial use. In accordance with the Declaration on the TRIPS Agreement and Public Health, each WTO member State can determine the grounds upon which such licenses are granted.137 Moreover, each State has the right to determine what constitutes a ‘national emergency’ or ‘other circumstances of extreme urgency’.138 Therefore, States may resort to Article 31(b) in order to serve the interests of society, provided that the conditions for applying Article 31(b) apply. Article 31(b), operating on a case-to-case basis, has no direct relationship to the limited exception provision of Article 30, as the latter sets out the TRIPS-compatible requirements for inserting any exceptions into the national patent laws. The States are given a relatively wide margin of discretion for applying this provision. The procedures for the granting of compulsory licenses, as outlined in the different paragraphs of Article 31, must be observed. Article 32: While Article 32 cannot be considered as such to be an exception or limitations provision, it can be addressed in this section by analyzing what is not stated as requirements for its application. This section will analyze the legal consequences of the fact that there is no specific identification of the situations or conditions that allow the national authorities to act in accordance with this provision, as long as its procedural requirements are complied with. Article 32 regulates revocation139 or forfeiture140 of patents, and has caused little attention. Article 32 reads: An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available.
135 In this context, it should be observed that the US Government holds a license to use any patented invention, see Barton 2004, p. 350. For a comprehensive analysis on public, non-commercial use, see Rott 2002, pp. 270-272 and 293-294. A third category of compulsory licenses are dependent licenses (Article 31(l) - see Staehelin 1999). 136 Article 31(b) reads (extracts): “such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time.” 137 WT/MIN(01)/DEC/W/2, paragraph 5(b). See also Straus 1996, p. 205, analyzing permissive granting of compulsory licenses under the Paris Convention. 138 WT/MIN(01)/DEC/W/2, paragraph 5(c). 139 Revocation is applicable where the conditions for the grant of the patent were not in place (wrong or insufficient information in the application). 140 Forfeiture is based on acts done after the patent grant (abuse of rights or insufficient payment of fees).
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The scope of this provision will be analyzed. First, are there any other treaty provisions which can be applied in order to identify the scope of Article 32? Second, is it possible to include public interest considerations as a justifiable and legitimate basis for revocation or forfeiture of a patent? It is ackowledged that the recognized bases upon which such actions can be taken is wrong or insufficient information at the time of the granting of the patent, resulting in wrong decisions (applies to revocation), or failure to pay fees or abuse of the patent (applies to forfeiture). Third, how to solve a dispute regarding Article 32, provided that revocation and forfeiture is regulated in a more detailed manner in the Paris Convention? The questions are answered below. Based on Article 2.1 of TRIPS, stating that ‘Members shall comply’ with the Paris Convention, Article 32 of TRIPS will be analyzed by including also provisions from the Paris Convention, primarily Article 5A(3): Forfeiture of the patent shall not be provided for except in cases where the grant of compulsory licenses would not have been sufficient to prevent the said abuses. No proceedings for the forfeiture or revocation of a patent may be instituted before the expiration of two years from the grant of the first compulsory license.
Article 5A(4) of the Paris Convention regulates compulsory licences. A recognized guide to the Paris Convention – to which WTO members must comply – finds, however, that this Convention does not rule out revocation or forfeiture of a patent based on public interest, and not merely abuse of patents.141 This observation will be analyzed. It must be emphasized that Article 32 is addressing the possibility of the holder of a right which has been revoked or forfeited to challenge this decision. In other words, the right holder shall have available judicial mechanisms to defend a patent once it is granted, and subsequently revoked or forfeited.142
141 Bodenhausen 1968, p. 70, stating that under such circumstances Article 5A(3) and (4) do not apply. It must be observed that this is a recognized guide to the Paris Convention. While a State revoking a patent for reasons of public interests could avoid disputes that might end up before the dispute settlement system by complying with the procedural requirements of Article 5A(3) of the Paris Convention (two years from the grant of the first compulsory license to proceedings to revoke or forfeit a patent), Watal 2000b, p. 111, confirms that if public interests, and not abuse is the basis, “…the conditions and time limits of Article 5A do not apply.” Alternatively, see Pires de Carvalho 2005, p. 376: “…the government may expropriate the patent, […] not simply cancel it.” 142 In this context, note two paragraphs of Article 41 (‘General obligations’): 2. 5.
Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. […] It is understood that this Part does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforce-
The Trips Agreement, Particularly Patent Protection
In this context, it is relevant to notice that the industrialized States failed in their efforts to have a very limited basis for revocation of a patent.143 Therefore, TRIPS does not explicitly give any basis to determine when either revocation or forfeiture of a patent can be decided, but by incorporating Articles 1 to 12 and 19 of the Paris Convention by TRIPS Article 2.1, all WTO members must comply with these provisions of the Paris Convention. After identifying this lack of an explicit basis in Article 32, we will analyze if revocation or forfeiture of a patent can based on public interest, in addition to the more recognized bases, such as abuse of patents.144 Revocation or forfeiture based on the public interests should only be undertaken if there are very important reasons for canceling a granted right. Therefore, such revocation or forfeiture of a patent based on public interests can be done under circumstances where the grant of a compulsory license is insufficient to mitigate the situation which has made it necessary in the first place to take such measures in the public interest. This revoking or forfeiture of the patent must be found to be the most appropriate measure in the circumstance in order to reach a given policy goal. A State revoking or forfeiting a patent on reasons of public interests could choose to comply with the procedural requirements of Article 5A(3) of the Paris Convention (two years from the grant of the first compulsory license to the start of proceedings to revoke or forfeit a patent). A renown author confirms that if public interests, and not abuse is the basis, “…the conditions and time limits of Article 5A do not apply.”145 Based on the analysis of these three authors, it seems that Article 32 TRIPS therefore provides a basis for ensuring public interests. Applying Article 32 in the manner indicated above might be disputed by some industrialized States, however, as only abuse is explicitly recognized in the Paris Convention as the basis upon which forfeiture or revocation can be decided. As TRIPS does not specify any basis for such decisions, despite the attempts from industrialized States, it is possible to imply that there are potentially more bases than those generally recognized (wrong or insufficient information; no payment of fees; abuse of the patent), hence possibly extending to public interest considerations. Hence, Article 32 can be understood to be a third flexibility provision under Part II of TRIPS. The lack of support from the actual wording of TRIPS, and any expressed agreed intention among all the States to change the established practice, implies that this is a finding that is disputed. At the same time, developing countries succeeded in
ment of law in general, nor does it affect the capacity of Members to enforce their law in general. […]
See also Article 10.3 of the Patent Law Treaty (validity and revocation of patents), stating that there is no ‘obligation to put in place judicial procedures for the enforcement of patent rights distinct from those for the enforcement of law in general’. 143 See Gervais 2003a, p. 254, referring to the unsuccessful proposals; first, to limit revocation to cases of lack of fulfillment of the substantive patent eligibility criteria (US proposal), and second, that a patent cannot be revoked on grounds of non-working (EC proposal); see also Watal 2000b, p. 115. 144 See Watal 2000b, pp. 115-116. 145 Ibid, p. 111, referring to Bodenhausen.
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their intentions to identify no explicit basis upon which revocation or forfeiture can be decided. Nevertheless, States should be careful to apply Article 32 in such a way that accusations might arise that the TRIPS Agreement is not complied with. Third, the analysis will now address disputes regarding Article 32 of TRIPS, in light of the fact that revocation and forfeiture is regulated in more detail in the Paris Convention. If an inter-State dispute arises based on the forfeiture or revocation of a patent, it cannot be excluded that some provisions of the Paris Convention will be relevant. The Paris Convention states in Article 28.1 (extracts): Any dispute between two or more countries of the Union concerning the interpretation or application of this Convention, not settled by negotiation, may, by any one of the countries concerned, be brought before the International Court of Justice by application in conformity with the Statute of the Court, unless the countries concerned agree on some other method...
Hence, the dispute can be brought before the International Court of Justice. However, this does not apply if ‘some other method of settlement’ is found, and the DSU provides such other method of settlement. Hence, even if TRIPS regulates revocation of patents in a less explicit manner than the Paris Convention, this does not exclude the application of the DSU in order to solve disputes concerning revocation or forfeiture. Article 6: This provision says that WTO members can choose their preferred system to determine when intellectual property rights are exhausted, and that this is not an issue for the dispute settlement system.146 Hence, while this provision is not explicitly an exception provision, but relates primarily to the scope of the patent, it gives a margin of appreciation for each member State of the WTO. Exhaustion determines when the exclusive rights can no longer be exercised by the right holder, provided that the products to which the protection applies were originally brought onto the market by the right holder or with his consent. By choosing the principle of international exhaustion in the national legislation, a State can allow for parallel import of patented products from another State’s market. The condition is that the product is protected both in the importing State, and in the State providing the products. Generally speaking, a State can apply principles of exhaustion on either the national, regional147 or international148 level. TRIPS does not change that. As indicated above, this relative flexibility in chosing exhaustion principles has a direct relationship to the prac146 Article 6 reads: “For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles€3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.” 147 Regional exhaustion is provided for in the OAPI (Organisation Africaine de la Propriété) Agreement from 1977, which in Annex X includes plant varieties, and in the European Communities, which regulates plant variety protection in EC regulation 2100/94 and patents in EC directive 98/44. 148 Under international exhaustion, it is permitted to import a good, also if the good is patented in this other jurisdiction; see Correa 2003, p. 423.
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tice of parallel imports. In practice, parallel import implies an exception to the exclusive right of the right holder, as products already sold in another jurisdiction can be imported to a State.149 This is also confirmed by TRIPS Articles 28.1 and 51. Article 28.1 contains a footnote after the term ‘importing’, which states that this right, as other rights conferred under the TRIPS Agreement, is subject to the provisions of TRIPS Article 6. Article 51 contains a footnote relating to importation of counterfeit goods, stating that “…there shall be no obligation to apply such procedures to imports of goods put on the market in another country by or with the consent of the right holder…” The result of initiating parallel imports is usually better availability of goods, more competition, and thus lower prices. On the other hand, international exhaustion could imply that it might be more difficult to charge less for protected products in developing countries, owing to the fact that the risk that these products could then be bought and resold in the market of an industrialized State – with considerable profit.150 One author finds that it is easier to have acceptance of parallel imports with regard to copyrights and trademarks, compared with patents.151 The Japanese Supreme Court has stated in a patents case, however, that the issue of parallel imports was a matter of national policy of each country,152 and Japan is thus one of the industrialized countries which recognize the international exhaustion of patent rights.153 Also in Switzerland, a Supreme Court decision explicitly stated that TRIPS does not prevent parallel imports.154
149 One important condition is that these other goods have legally been put on foreign markets, by the right holder or with his consent, implying that they are not counterfeit goods. 150 For an analysis of economic and social impacts, see UNCTAD/ICTSD 2005, pp. 116-117. 151 See Correa 2002a, p. 45. For an alternative view, see Matsushita, Schoenbaum and Mavroidis 2003, p. 421, stating that the USA allows parallel imports of patented goods – although this issue is not addressed by the Supreme Court or the Court of Appeals for Federal Circuits – while parallel imports of goods under trademark is only allowed if the foreign and domestic owner of the mark are under common control. 152 Aluminium Wheels Case, No H-7(O) 1998, 1 July 1997, see International Review of Industrial Property and Copyright Law Vol. 29 (1988), pp. 331-335. See particularly p. 334, in which the Court concludes: “…goods may be imported into Japan if the patentee puts such goods into circulation abroad without any reservations at the time of transfer. The transferee or any other subsequent purchaser is understood to have purchased the product without any restrictions that might apply to such products in Japan.” For an analysis, see Rott 2002, pp. 240-250. 153 Within EU/EEC, the principle of regional exhaustion is applied. 154 In Kodak SA v. Jumbo-Markt AG 4C.24/1999/rnd, 7 December 1999, paragraph 3b) the Supreme Court stated with regard to TRIPS: “…the import of products that infringes the patent must be prohibited, without itself laying down a prohibition against parallel imports. This follows not only from Art. 6 of the TRIPs Agreement, but is also clarified in a reference to Art. 6 in a footnote to Art. 28 of the Agreement.” The Supreme Court found – based on existing Swiss legislation – that there was national exhaustion in the field of patents, but international exhaustion in the field of copyrights and trademarks.
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International exhaustion and parallel import can be a way to challenge the market power of a dominant patent holder, and can, in effect, result in less possibilities to exercise exclusive rights without restraints. Articles 7 and 8: Articles 7 155 and 8156 of TRIPS are also important provisions, as reiterated by the Doha Declaration on TRIPS and Public Health.157 As shown in the analysis above, particularly with regard to Article 27.2 and 30, the provisions of Part II of the TRIPS Agreement are to be interpreted in light of Articles 7 and 8. Article 7 and 8 cannot be considered as exceptions to the exclusive rights per se, but more as balancing provisions between the rights holders and the public interests, based on the necessity to meet an important policy goal.158 Therefore, considerations relating to food, health or the public interest in important sectors, can be included in any clarification of the relevant provisions.159 Article 8.1 has a narrow application, as it restricts the taking of public interest 155 Article 7 reads: “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.” 156 Article 8 TRIPS does not deny countries the possibility of adopting measures to serve public policy objectives, as long as these measures are necessary (Article 8.1) or needed (Article 8.2) for reaching the policy goals. Taken together, there are six measures identified in Article 8, all of which must be applied in a manner consistent with the TRIPS Agreement. The first three are identified in Article 8.1 and the last three in Article 8.2: a) Measures necessary to protect public health. b) Measures necessary to protect public nutrition. c) Measures necessary to promote the public interest in sectors of vital importance to their socio-economic and technological development. d) Measures needed to prevent the abuse of intellectual property rights. e) Measures needed to prevent practices which ureasonably restrain trade. f) Measures needed to prevent adverse effects on the international transfer of technology. Article 8.1 must be read to imply that the relevant measures must be taken by means of law or regulation, as the introductory phrase reads ‘in formulating or amending their laws and regulations’. 157 WT/MIN(01)/DEC/W/2: Declaration on the TRIPS Agreement and Public Health, paragraph 5(a) reads: “…each provision of the TRIPS Agreement shall be read in light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles.” The status of the Declaration was analyzed in Chapter 3.3.2, and its content will be analyzed in Chapter 10.2.4. 158 Reichman 1997, p. 35, finds that Articles 7 and 8 are applicable in ’appropriate circumstances’ to “…legitimize ad hoc exemptions and limitations required by overriding national development needs…” The basis for a legitimate exemption and limitation, however, must be found in Part II of TRIPS, which should be interpreted in light of Articles 7 and 8, and these articles will be applied and not only referred to. 159 Rott 2002, p. 197 finds that “[d]er Aufbau einer inländischen Produktion, die für die sozioökonomische und technische Entwiklung entschiedend wichtiger Sektoren von Bedutung ist, ist ein solcher sachlicher Grund.” For developing countries, the development of the agricultural
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measures under States’ laws and regulations to situations where “…such measures are consistent with the provisions of this Agreement.” Article 73: Finally, it must be noted that Article 73 (‘Security exceptions’), relating to both national and international peace and security, does not prevent the taking of measures ‘in times of war or other emergencies in international relations’ (Article 73(b)(iii)). This article has a restrictive application. At the same time, an extreme food shortage could be a situation where measures relating to exceptions from patentability are justified, as this situation can fall within the scope of ‘other emergencies in international relations’. Therefore, it is not excluded that in a situation of famine or other situations where the right to food is seriously threatened, Article 73 might apply. 8.2.6
Summary of the Material Provisions on Patent Protection in TRIPS
In this section, some characteristics of the TRIPS Agreement are identified. First, WTO member States are not allowed to exclude specific fields of technology from patent protection, except from what is explicitly provided for in Article 27. Second, the scope of several of the central provisions have not been appropriately clarified. Third, several provisions give rise to certain flexibilities in the national implementation. TRIPS is specific, prescribing in a detailed manner how its provisions shall be implemented in national law.160 At the same time, TRIPS does not harmonize patent legislation, and States are, to some extent, able to determine the appropriate level of protection, in accordance with the TRIPS provisions. 8.3
Enforcement
Part III of TRIPS regulates national enforcement of the rights recognized in Part II. There is no doubt that TRIPS has strong prescriptions on national implementation. As observed by one author: “By emphasizing the need to domesticate TRIPS obligations into national law, and by providing for a private right of action, TRIPS may perhaps be the most self-enforcing of all WTO agreements.”161 On the other hand, the States themselves determine the appropriate method of implementation, according to Article 1.1, last sentence, but only if this does not contradict any of the subsequent provisions.162 Part III is divided into five sections (General Obligations; Civil and Administrative Procedures and Remedies; Provisional Measures; Special Requirements Related to Border Measures; and Criminal Procedures).
sector must be considered as a sector of vital importance to their socio-economic and technological development. However, the last sentence of Article 8.1 TRIPS must be observed. 160 This is also evident by the provisions of Part III of TRIPS (Articles 41 to 61), which will also be included in the analysis in Chapter 12. 161 Charnovitz 2002b, p. 384. 162 For a confirmation that there are several systems and manners through which TRIPS can be implemented, see Pires de Carvalho 2005, pp. 190-191, and Koo et al. 2004a, p. 1297.
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Not all of the 21 articles of Part III can be analyzed in detail, but the most basic provisions will be identified. The following gives an overview of the most basic provisions of Part III of TRIPS. First, there must be ‘effective action against any act of infringement’ (Article 41.1). Second, the State parties ‘shall make available to right holders civil judicial procedures’ (Article 42). Third, this does not create any ‘obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general’ (Article 41.5). Fourth, judicial authorities shall have wide powers, relating to ‘preventing imported goods that involve the infringement of an intellectual property right’ (Article 44.1) and ‘order the infringer to pay the right holder damages’ (Article 45). Fifth, ‘competent authorities shall have the authority to order the destruction or disposal of infringing goods’ (Article 46; see also Article 59 and 61). Sixth, in situations where there has been no infringement, the judicial authorities shall order the applicant (right holder) to provide to the ‘defendant appropriate compensation for any injury’ (Article 51.7; see also Article 51.6, 55 and 56). The most relevant provisions in relation to human rights are those relating to the destruction of infringing goods (Articles 46, 59 and 61). Article 46 reads (extracts): In order to create an effective deterrent to infringement, the judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or, unless this would be contrary to existing constitutional requirements, destroyed. […] In considering such requests, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account.
Article 59 reads (extracts): …subject to the right of the defendant to seek review by a judicial authority, competent authorities shall have the authority to order the destruction or disposal of infringing goods in accordance with the principles set out in Article 46.”
Article 61 reads (extracts): In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods…
It is the judicial authorities which can order these acts as a part of its ruling. All three articles provide for a certain balancing. Article 46 establishes two conditions for its application. A destruction of the goods can only take place if such destruction is not ‘contrary to constitutional requirements’. Moreover, the seriousness of the infringement shall be used as a basis for assessing the proportionality between the action requested by the judicial authorities and the interests of the third parties. As Article 46 is termed ‘other measures’, applying the measures under Article 45 on damages must also be considered.
The Trips Agreement, Particularly Patent Protection
Article 59 confirms the restrictions on application contained in Article 46, and furthermore says that the defendant shall have access to legal review.163 Article 61 applies the term ‘appropriate cases’. It must be assumed that ‘appropriate cases’ include those cases in which the production of infringing goods takes place on a certain scale and with considerable profits.164 This article does not specify the conditions for when it applies, except from that the counterfeiting or piracy must be ‘wilful’. Therefore, it cannot be presumed that ‘appropriate cases’ are limited only to counterfeiting or piracy on a certain scale. The most important part of the three provisions is the phrase ‘shall have the authority to order’. If the States entrust the judicial authority with this authority, they act in compliance with the TRIPS Agreement. None of the three provisions can be understood as imposing a direct obligation on the State to actually destroy infringing goods. This is read out of Articles 46 and 59, and the term ‘appropriate cases’ of Article 61, as the judicial authorities decides on what constitutes such appropriate cases. These provisions will be analyzed in Chapter 12.2.2 below. Another provision of relevance in the context of national implementation of intellecual property rights is Article 62, which is the only article in Part IV of TRIPS, regulating the acquisition and maintenance of intellectual property rights. Article 62 states that compliance with reasonable procedures and formalities consistent with TRIPS may be required by the WTO members with regard to those intellectual property rights regulated in Section 2 through 6 of TRIPS Part II. Article 62 of TRIPS does not raise specific questions in the context of this study. The provisions of Part III and Part IV emphasize the crucial role of the judicial authorities.165 Specific obligations are set out in Part III, which will require considerable efforts of those States with weak institutional capacity. Hence, the provision in Article 1.1 (‘Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice’) applies only to the extent that the provisions of Part III cannot be given effect.
163 Ref. TRIPS Article 32, saying that the judicial review shall be available for the patent holder for any decision to revoke or forfeit a patent. 164 Gervais 2003, p. 327 refers to ‘organised infringement’, being infringement on a considerable scale. 165 States (‘Members’) are the subject in only five articles of Part III (Articles 41, 42, 51, 60 and 61), while ‘judicial authorities’ are the subject in eight articles (Articles 43 through 50) and other ‘authorities’ are the subject in another eight articles (Articles 52 through 59, except from Article 54).
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Effective Sui Generis Systems for the Protection of New Varieties of Plants
In this chapter, the minimum requirements for plant variety protection as defined by TRIPS will be analyzed. While plant varieties are only referred to once in the TRIPS Agreement, TRIPS requires that all WTO member States adopt legislation for the effective implementation of plant variety protection, including enforcement. This chapter will first analyze UPOV, which is a recognized international system for the effective protection of plant varieties. A particular emphasis will be on the 1991 Act of the UPOV Convention, as this is the only available Act for new UPOV member States. At the same time, WTO member States are not required to join UPOV in order to comply with TRIPS. The analysis will identify the extent to which the UPOV Convention requires a higher level of protection than what is required under TRIPS. UPOV 1978 is presumed to be closer to the minimum requirement of plant variety protection, and the identification of minimum requirements is the purpose of this chapter. UPOV 1978 establishes one maximum requirement, as Article 2.1 explicitly excludes double protection on plant varieties, and leaves the decision as to whether to grant patents on plant varieties to the States themselves. UPOV 1991 allows dual protection. Hence, both plant breeders’ rights and patent rights can be granted on a plant variety provided that the requirements for protection are met. 1
When UPOV 1991 came into force in 1998, only this was open for accession for new members. Those states which were in the process of becoming signatories to the 1978 Act were allowed to proceed. Article 2.1 of UPOV 1978 reads: “Each member State of the Union may recognise the right of the breeder provided for in this Convention by the grant either of a special title of protection or of a patent. Nevertheless, a member State of the Union whose national law admits of protection under both these forms may provide only one of them for one and the same botanical genus or species.” Only recently, such dual protection was recognized in Europe by the decision G 0001/98 (Transgenic Plant/ Novartis II of 20 December 1999), EPO Official Journal 2000 p. 111; see also decision in Technical Board of Appeal: T 1054/96 (13 October 1997), EPO Official Journal 1998, p. 511. See Helfer 2002, p. 24 and Watal 2001, p. 153, for further analysis. In the USA, this practice has been common for the last decade. According to Dan Leskien (personal communication August 29th 2002), all of the 15 most popular plant varieties in the US are now also protected by patents, after being modified by genetic engineering.
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The specific requirements of an ‘effective sui generis system’ for plant varieties will then be examined, in Chapter 9.2. We will not analyze in detail the granting of patent protection to plant varieties, which is an option under TRIPS Article 27.3(b), as patent protection for plant varieties undoubtedly fulfills the TRIPS requirements. 9.1
Plant Varieties Protection as Defined by UPOV
When analyzing the requirements of UPOV, it is not intended to present all provisions, but rather focus on the most relevant provisions for the purposes of this study. States wanting to become members of UPOV must comply with the standards of UPOV 1991. UPOV offers, however, only one option of an ‘effective sui generis system. Still, more developing States are parties to UPOV 1978 than to UPOV 1991. Below, the analyis will be structured by applying the same categories as with regard to patents (Chapter 8.2). This study will focus on both UPOV 1978 and UPOV 1991, to show where the provisions of the two Acts of the UPOV Convention differ, and to identify their minimum requirements. Through this analysis, it will be possible to identify whether and how the requirements of the UPOV Convention differ from those of the TRIPS Agreement with regard to the protection of plant varieties. 9.1.1
Eligibility Criteria
Only plant varieties as defined by Article 1(vi) of UPOV 1991 are eligible for protection. UPOV 1978 does not contain a definition of a variety, but states in Article 2.2 that each member may limit the application of the UPOV Convention to “…varieties with a particular manner of reproduction or multiplication, or a certain end-use.” This latter provision will be analyzed in Chapter 9.1.2 below. The current section will analyze the specific requirements for determining whether a plant variety is eligible for protection. Legal criteria: As was seen in Chapter 2.3.1, the legal criteria for determining whether a plant variety qualifies for protection are: novelty, distinctness, uniformity and stability. Each of these will be analyzed below. Novelty (Article 6.1(b) of UPOV 1978; Article 6 of UPOV 1991). The plant variety must be novel. Selling and disposing of to others the new plant variety for the purpose of exploita-
The following developing countries are part of the UPOV 1978 Convention: Argentina, Bolivia, Brazil, Chile, China, Colombia, Ecuador, Kenya, Mexico, Nicaragua, Panama, Paraguay, South Africa, Trinidad & Tobago, Uruguay. Zimbabwe is in the process of acceding to UPOV 1978. Present developing country members of the UPOV 1991 Convention are: Azerbaijan, Jordan, Kyrgyzstan, Morocco, Tunisia, Viet Nam and Uzbekistan. In Chapter 9.2, below, more information will be given on possible ‘effective sui generis systems’. There are presently only 64 members of UPOV (WTO has 150 members).
Effective Sui Generis Systems for the Protection of New Varieties of Plants
tion earlier than one year before the application date, does not exclude protection. There is even more flexible exception from this novelty criterion to ‘varieties of recent creation’. These provisions are positive for the breeders seeking to meet the novelty requirement. Distinctness (Article 6.1(a) of UPOV 1978; Article 7 of UPOV 1991). The new variety shall be clearly distinguishable from other varieties ‘whose existence is a matter of common knowledge’. The term ‘common knowledge’ must be understood as applying to a person skilled in the art. Requiring that this knowledge should be ‘common’ among ordinary people would render the provision meaningless. The variety does not need to represent an improvement which is non-obvious for a person skilled in the art. The determination of distctness differs between UPOV 1978 and UPOV 1991. The former includes cultivation or marketing, as well as precise description in a publication to determine distinctness, while the latter also includes an application for plant breeders’ rights, in any country, to determine when a variety constitutes common knowledge, including the determination of when a variety under consideration is sufficiently distinct. Uniformity (Article 6.1(c) of UPOV 1978; Article 8 of UPOV 1991). This requirement states that the variety shall be ‘sufficiently homogenous’, respectively ‘sufficient uniform in its relevant characteristics’. Criticisms have been raised against this requirement, as it is believed that uniformity might represent a threat to biological diversity. An in-depth analysis of these concerns are beyond the scope of this study.10 Stability (Article 6.1(d) of UPOV 1978; Article 9 of UPOV 1991). Stability implies that the “…relevant characteristics remain unchanged after repeated propagation.” The most specific UPOV guidelines say that “…all obvious characteristics may be considered.”11 The crucial issue when examining stability is not the repeated reproduction, but the repeated propagation. Therefore, when examining the stability of the ‘F1 hybrid’ which is produced by crossing two inbreds, the crucial question is whether also subsequent crossings of the same inbred produces the same ‘F1 hybrid’. Therefore, UPOV does not exclude hybrids from the scope of plant variety protection.12
For other territories than the territory where the application is filed, the selling or disposing of to others can take place up to four years (six years for trees and vines) before the date of application, without the novelty being destroyed; see UPOV 1991 Article 6.1(ii). Such recent varieties can be sold or disposed of to other earlier than one year, or four years, respectively, before the application date (Article 6.2). UPOV 1991 Article 7; UPOV 1978 Article 6.1(a). Crucible Group 2001b, p. 153, claiming that the criterion creates “…incentives to ‘breed-out’ diversity.” 10 It was concluded in Chapter 5.2.2, however, that sustainable use of natural resources falls within the scope of Article 11.2(a) of the International Covenant on Economic, Social and Cultural Rights. 11 UPOV 2002, paragraph 7.2. 12 Ibid, paragraph 7.3.2: “The stability of a hybrid variety, may in addition to the examination of the hybrid variety itself, also be assessed by an examination of the uniformity and stability
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In sum, the mere discovery is not enough: In order to be able to fulfill these criteria, conscious breeding over several years is required. The most interesting provision in this regard is UPOV 1991, whose Article 1(iv) states that a breeder is a “…person who bred, or discovered and developed, a variety” (emphasis added). By inserting the term ‘developed’, this phrase cannot be understood to allow for plant variety protection on mere ‘discoveries’. There must be some sort of development, but not necessarily through subsequent breeding during several years. It is crucial, however, that stability is observed during several years. With regard to who is entitled to protection, UPOV 1991 must be understood as being wider than UPOV 1978. The latter provides in Article 1.1 for protection only for a breeder of a new plant variety. There are two alternative interpretations of the difference in wording between UPOV 1991 and UPOV 1978. First, other categories than plant breeders can enjoy plant variety protection in accordance with UPOV 1991, as the acts of ‘discover and develop’ does not necessarily involve breeding. Second, the breeders are given wider possibilities to obtain plant variety protection, as they can enjoy protection also for merely ‘discovering and developing’ a plant variety. Both of these interpretations might be correct. The main distinction is that UPOV 1978 is stricter, as this Act requires that acts of actual breeding have been involved. This is somewhat parallel to a stricter understanding of the inventive step requirement, as outlined in Chapter 8.2.2 above. Minimum number of protected varieties: A final element which will be analyzed in the context of eligibility for protection are the UPOV requirements regarding the number of varieties that are to be protected at given periods after the State becomes a party to the UPOV Convention. UPOV 1991 provides stronger requirements on how many plant genera and species that shall be protected after certain periods. According to Article 3.2 of UPOV 1991, at least 15 plant genera and species shall be protected from the day when the State party is bound by UPOV, and all genera and species shall be protected within ten years.13 For those States which are parties to UPOV 1978, but then becomes parties to UPOV 1991, all plant genera and species shall be protected within five years from when they became parties to UPOV 1978, in accordance with Article 3.1 of UPOV 1991. This paragraph hence repeals Article 4.3 of UPOV 1978 which provided for less ambitious numbers of protected plant genera and species in subsequent years.14 Second, there is no flexibility
of its parent lines.” In the USA, such ‘F1 hybrids’ were excluded from protection. The PVPA (7 USC 2321 et seq.) was amended in 1994 to include FI hybrid; see 7 USC 2402, which gives rights to “[t]he breeder of any sexually reproduced or tuber propagated plant variety….” 13 Genera and species represent two distinct levels in plant taxonomy, genera being below ‘family’, but above species. A variety, on the other hand, is a classification below the species level. 14 According to Article 4.3 of UPOV1978, five species shall be protected at the date of the entry into force, increasing to ten species after three years, 18 after six years and 24 after eight years.
Effective Sui Generis Systems for the Protection of New Varieties of Plants
under UPOV 1991, similar to those of Article 4.4 and 4.5 of UPOV 1978.15 Such flexibility provisions might be relevant for States with a small breeding industry. Summary: Based on this analysis, it is reasonable to conclude that States which now are considering entering UPOV must be aware of the fact that there are wider defintions both of what is protectable, and how to extend protection to more varieties in UPOV 1991, compared to UPOV 1978. The requirement of granting protection to a given number of plant genera and species after specified periods can be a difficult obligation to comply with for those States with a limited breeding industry. 9.1.2
Exclusions from Plant Variety Protection
Only UPOV 1978 includes a provision on exclusion from protection, more specifically on limited application to certain varieties. UPOV 1978 reads in Article 2.2: Each member State of the Union may limit the application of this Convention within a genus or species to varieties with a particular manner of reproduction or multiplication, or a certain end-use.16
Similar exceptions are not included in UPOV 1991. There will now be an analysis on whether Article 2.2 of UPOV 1978 might be applied in order to exclude certain plant varieties from protection. As Article 2.2 of UPOV 1978 emphasizes ‘reproduction or multiplication’, this paragraph must be read as potentially applying to plant varieties which do not reproduce normally, inter alia, varieties containing GURTs.17 This paragraph permits States to exclude such plant varieties from the scope of plant variety protection. On the other hand, UPOV has stated with regard to such varieties: “With respect to varieties containing GURTs, it should be noted that such varieties may be granted plant breeders’ rights if they satisfy the conditions.”18 This position was found after the USA exercised political pressure, and not by a careful examination of the provisions of the relevant Acts of the UPOV Convention. Article 2.2 of UPOV 1978 concerns ‘forms of protection’, and the paragraph must be understood to allow for applying the UPOV Convention only to those varieties within a genus or species which have ‘a manner of reproduction or multiplication’ which is satisfactory, or which have a ‘certain end-use’ which is appropriate in relation to the specific priorities in this sector. While it was found above that exclusions of GUR technology is within the scope of Article 2.2 of UPOV 1978, it must be asked whether also other plant varieties could fall within its scope. On the one hand, exclusion provisions are generally rather restricted. 15
UPOV 1978 Article 4.4 applies to States intending to ratify or otherwise accede to UPOV, while Article 4.5 applies to States which are already UPOV members. 16 No legislation or legal decisions which have applied this paragraph have been found. 17 For an analysis of GURTs, see Chapter 2.3.5. 18 UPOV 2003b.
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On the other hand, Article 2.2 of UPOV 1978 does not establish any requirements, such as a ‘necessity’ test. Hence, legislation, regulations and practice which is based upon Article 2.2 can also exclude more varieties than those containing GURTs from protection, if such varieties are found to have a manner of reproduction or multiplication, or a certain end-use which is not optimal. While this provision is found to have a relevant application, no specific legislation has been found containing this provision. 9.1.3
Exclusive Rights
Initially, it must be noted that the period of protection starts when the rights are granted, not when the application is registered, as is the situation with patents. Under UPOV 1978, the duration of the rights is 15 years from the date the rights were granted, and 18 years for trees and vines. Under UPOV 1991, the period of protection is 20 and 25 years, respectively. The understanding of exclusive rights under UPOV is somewhat more complicated than with regard to patents, as regulated in Article 28 of TRIPS. The rights under UPOV do have a similar scope as under TRIPS, but there are two particular situations which require a specific understanding of the scope of plant breeders’ rights. Acts requiring the authorization of the right holder: UPOV 1978 Article 5.1 lists these actions as requiring the prior authorization of the breeder: a) production for purposes of commercial marketing, b) offering for sale, and c) marketing. In comparison, UPOV 1991 Article 14 states that the breeder’s prior authorization must be given before any of the following actions related to the use of the protected material, can be undertaken in the protection period: a) production or reproduction, b) conditioning (preparing) for the purpose of propagation, c) offering for sale, d) selling or marketing, e) exporting, f) importing, and g) stocking for any of these purposes. The 1991 UPOV Act is more oriented toward trade, by including importing and exporting (see also Article 28 of TRIPS) and thus is more adapted to the interests of private companies. Harvested material: Furthermore, in Article 14.2 and 14.3 of UPOV 1991, the rights are also extended to harvested material and products, but note that Article 14.3 on products says that such a provision may be included in each contracting party’s legislation. The exclusive rights are therefore extended to products made directly from the harvested material, if the harvest has been obtained through an unauthorized use of the propagating material, and the breeder has not had reasonable opportunity to exercise rights in relation to that material. Similar provisions are not found in UPOV 1978. Hence, the protection under UPOV 1991 is wider than UPOV 1978. To act in compliance with TRIPS, however, the protection granted in accordance with UPOV 1978 is sufficient. Essentially derived varieties: Finally, the exclusive rights also extend to essentially derived varieties, in accordance with UPOV 1991 Article 14.5. This provision is stronger than the similar provision of UPOV 1978, in which Article 5.3 requires the authorization of the breeder only when the initial variety is necessary for the commercial production of another variety. The essentially derived varieties provision of UPOV 1991 applies to
Effective Sui Generis Systems for the Protection of New Varieties of Plants
varieties which conform to the initial variety in the expression of the essential characteristics, in other words, similar genotype. UPOV’s Vice Secretary-General has identified the main difference between the patent system and the essentially derived variety provision of UPOV by emphasizing that under UPOV, breeding of essentially derived varieties is not prevented, only exploitation requires the authorization of the owner of the original variety.19 Therefore, access to breeding material is maintained. Is this a substantial difference between TRIPS-conform patent protection and UPOVconform plant variety protection with regard to experimentation? Moreover, is the distinction between the relevant provisions of UPOV 1978 and 1991 substantial? Under all treaties, the protection allow experimentation, but restrict commercialization,20 but the scope is not necessarily identical. The ‘essentially derived’ provision of UPOV 1991 applies to more varieties, and hence extends the rights of the breeders more than the similar provision of UPOV 1978 (‘initial variety is necessary’). Moreover, more acts can be undertaken under plant variety protection than under patent protection. Based on this analysis, the exclusive rights under plant variety protection, as defined in accordance with UPOV 1991, are closer to patent rights, while there are less similarities between patent rights and plant variety protection, as defined in accordance with UPOV 1978. Based on the fact that plant variety protection was developed as an alternative to patents,21 as the patent system was not considered to be appropriate for plants with the abilty to reproduce, this is somewhat surprising. At the same time, patent protection for inventions concerning plants granted to the biotechnology industry implies that this industry may have gradually obtained a beneficial situation vis-á-vis the plant breeding industry. Summary: There is no doubt that the scope of the exclusive rights are both wider and the rights are more explicitly defined in UPOV 1991, compared to UPOV 1978. This confirms the observations that UPOV 1991 is more ‘patent-like’. 9.1.4
Exceptions and Limitations
There are several exemptions, restrictions and limitations to the exclusive rights, both in UPOV 1991 and UPOV 1978. These will be analyzed below, with the two most important exceptions analyzed first. Breeders’ exemption: Under UPOV 1978, it is allowed to use a variety both for the purpose of creating other varieties, or for the marketing of such varieties.22 Under UPOV 19 Jördens 2003, p. 10, paragraph 24. The interpretation of what is ‘essentially derived’ is complicated, and is relevant in the discussion of whether CGIAR Centers can prevent patents on germplasm from their collections if the material is essentially derived from their material; see Fowler et al. 2004. 20 Ibid, p. 11, paragraph 25. 21 See Chapter 2.3.2; see also Chapter 3.4.1. 22 UPOV 1978 Article 5.3 reads: “Authorisation by the breeder shall not be required either for the utilisation of the variety as an initial source of variation for the purpose of creating other variet-
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1991, the breeders’ exemption allows research on protected varieties, provided that these new varieties are not ‘essentially derived’ from the protected variety,23 and provided that this is done for ‘experimental purposes’.24 Neither does UPOV 1991 prevent acts done privately and for non-commercial purposes, as well as acts done for the purpose of breeding other varieties.25 The main difference is that UPOV 1978 allows for the marketing of new varieties also where protected varieties were the ‘initial source’. This ‘research exemption’ is relatively expansive. A legislation in accordance with UPOV 1978 is hence favorable to breeders (by allowing for the marketing of the results of breeding) but is also perceived negatively by them (by restricting the exclusive rights). Farmers’ privilege: Farmers who are reusing protected varieties on their own holding, are not acting in violation of the UPOV Convention. Another question is whether they can exchange such protected material for non-commercial purposes (non-profit motivations). UPOV 1991 allows its parties to permit farmers to reuse material protected by plant breeders’ rights on their own holdings (optional exception), but does not authorize farmers to sell or exchange seeds with other farmers for propagating purposes.26 Article 15.2 of UPOV 1991 on farmers’ privileges, however, states that this exception to the rights relating to reuse shall be done “…within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder.” Exchange cannot be considered to be allowed under UPOV 1991, even if it is for non-commercial purposes. UPOV 1978 allows for more flexibility, by not requiring permission from the breeders’ rights’ holder for the marketing of protected varieties, unless in situations of repeated use of the variety for the commercial production of another variety, as stated in Article 5.3. UPOV 1978, however, does not address exchange of protected material between farmers for non-profit motivations. As marketing by other breeders is allowed under certain circumstances, both exchange and sale between farmers under certain circumstances must also be considered to be allowed. The crucial issue for determining when authorisation is required is whether such exchange represent an actual competition with the breeder.
23
24 25 26
ies or for the marketing of such varieties. Such authorisation shall be required, however, when the repeated use of the variety is necessary for the commercial production of another variety.” Note that authorization from the right holder shall be required “…when the repeated use of the variety is necessary for the commercial production of another variety.” The wording of UPOV 1991 Article 14.5(b)(iii) reads: “a variety shall be deemed to be essentially derived from another variety (“the initial variety”) when […] it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.” UPOV 1991 Article 15.1(ii). UPOV 1991 Article 15.1(i) and (iii). The UPOV 1991 Article 15.2 reads (extract): “…permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings…”
Effective Sui Generis Systems for the Protection of New Varieties of Plants
An important question is if UPOV 1991 is restricting access to and exchange of plant genetic resources by extending the plant breeders’ rights. The farmer can be allowed to continue replanting the seeds that have been grown on his or her own holding, even if these seeds are protected seeds, but cannot exchange protected seeds to allow for their propagation on other holdings. A more precise understanding of the phrase ‘within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder’ is hard to find. Access between farmers will be restricted by implementing UPOV 1991. It should be noted that farmers’ privilege is accepted in industrialized States’ legislation.27 Therefore, the farmers’ privileges should not be considered as only a legitmate exception under the UPOV Convention. There is no doubt that the introduction of farmers’ privileges can imply that important societal interests are taken into account in the implementation of intellectual property legislation. UPOV 1978 has no provisions with regard to farmers’ privilege. Therefore, these observations apply to UPOV 1991. Under farmers’ privileges, farmers can choose either to reuse the seed, to obtain new protected seed, or turn to non-protected seed. This comes in addition to the right of the farmer to dispose freely of the harvest for non-propagating purposes, implying that farmers can sell the protected variety for final consumption. Unless farmers have been able to breed new varieties, which are not essentially derived from the protected variety, which is unlikely, because of particularly the legal criteria of uniformity and stability, they are not free to sell the protected variety for further propagation or breeding. Other exceptions and limitations recognized under UPOV will now be examined. Compulsory license: Compulsory license is provided for in Article 17 of UPOV 1991 and in Article 9 of UPOV 1978. The main difference between the two provisions is that the latter provides for equitable remuneration to the breeder in paragraph 9.2, provided that the “…restriction is made in order to ensure the widespread distribution of the variety.” Such conditions are not found in UPOV 1991, which has a general requirement that the breeder shall always be paid equitable remuneration.28 It should, moreover, be noted that while UPOV 1978 and UPOV 1991 both include public interests as a ground for granting compulsory licenses, public interests considerations are included as a ‘principle’ in the preamble of UPOV 1978.29 This indicates that subjecting the exclusive rights to the public interests is more explicitly recognized in UPOV 1978 as compared to UPOV 1991. Compulsory licenses are rarely granted in the field of plant variety protection. Some legislation determines that such licenses may be granted if a certain period has passed since the granting of the breeders’ rights without these rights being exploited.30 27 EC Commission Directive 98/44, Article 11.1; see also Moufang 2003, p. 8 28 TRIPS Article 31 also acknowledges the remuneration of the right holder, and gives several bases upon which a compulsory license can be justified; see Chapter 8.2.5. 29 UPOV 1978 Preambular paragraph (b) reads: “The Contracting Parties […] are conscious of the special problems arising from the recognition and protection of the rights of the breeders and particularly of the limitations that the requirements of the public interest may impose on the free exercise of such a right.” 30 See Panama Executive Decree 13 (1999) on Plant Varieties Protection, Article 15.3, setting three years of non-exploitation. Article 21 of Brazilian Decree 2366 does not give any such
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Nullification and cancellation: Article 21 of the UPOV 1991 Act allows for the provisions for nullification (revocation – relating to Articles 6 and 7) and Article 22 outlines the conditions for cancellation (forfeiture – relating to Articles 8 and 9) of the plant breeders’ right. According to Article 22.1(b), in addition to failure to pay fees or provide documentation, cancellation can be determined if the right holder fails to propose an alternative suitable denomination. UPOV 1978 provides similar provisions in Article 10, but does not include the two last legal criteria (homogeneity/uniformity and stability) as grounds for the forfeiture of a plant breeder right. UPOV 1978 Article 10.2 and 10.3 lists the following acts as the basis upon which forfeiture can be determined: failure to provide the competent authority with reproductive or propagating material, failure to provide relevant documents, or failure to pay fees. In other words, UPOV 1991 provides for different grounds for the forfeiture of a plant breeders’ rights than UPOV 1978, if it appears that the variety was not uniform or stable, as claimed in the application. At the same time, a State which seeks to be in conformity with UPOV 1978, cannot be denied the possibility to include in its legislation also lack of uniformity and stability as a basis for the forfeiture of a plant breeders’ right. The explicit listing of grounds on which forfeiture or revocation can take place is different from the similar provision in TRIPS.31 None of the UPOV provisions specifically allow for revocation or forfeiture in the public interest, and both Acts state explicitly that the only reasons or grounds to cancel or nullify breeders rights, are those given in these Articles. At the same time, one of the bases for the forfeiture of a plant variety protection is inability to provide ‘reproductive or propagating material’ (UPOV 1978 Article 10.2). To provide such ‘reproductive or propagating material’ to the competent authorities could relate to public interests considerations. If the right holder effectively holds monopoly due to the plant breeders’ rights, and no other varieties are available, the failure to provide the competent authorities with such ‘reproductive or propagating material’ could have consequences for the actual access to this protected variety, and hence to the resulting food production. As the right holder’s failure to provide the relevant material to the competent authorities is a sufficient reason for forfeiture, it will not be elaborated further on any potential legal consequences of these possible public interest considerations of Article 10.2 of UPOV 1978. Exhaustion: Finally, as UPOV 1991, unlike UPOV 1978, regulates import of varieties protected by plant breeders’ rights, UPOV 1991 also provides for exhaustion of plant breeders’ rights, if the variety has been sold or otherwise been marketed by the breeder, or with his consent. This is provided for in Article 16, and in accordance with Article 16.3,
31
period, but states rather that the compulsory license shall be given for three years. See Pires de Carvalho 2005, p. 375, holding with regard to Article 32 TRIPS (‘revocation/forfeiture’) that the “…lack of a TRIPS provision similar to Articles 21 and 22 of UPOV 1991 is a major flaw.” Article 32 of TRIPS does not define the grounds on which patents can be revoked or forfeited. In principle, therefore, under TRIPS, revocation of a patent can also be based on grounds other than the lack of fulfillment of the patent eligibility criteria, such as public interest; see Gervais 2003a, p. 254 and Watal 2000b, p. 111.
Effective Sui Generis Systems for the Protection of New Varieties of Plants
UPOV 1991 does not exclude the possibility of international exhaustion, provided that this is required by the relevant international organization, and provided that UPOV’s Secretary-General is notified. Under Article 16.1 of UPOV 1991, exhaustion of breeders’ rights does not take place if the parallely imported protected variety is re-exported to a State where this variety is not protected – unless the exported material is for consumption purposes – or if the acts involve further propagation of the variety. This provision is not of particular relevance for this book, and will not be examined in greater detail. Summary: The findings of this section are that both breeders’ exemption and farmers’ privilege are recognized in both acts of the UPOV Convention, but UPOV 1991 recognizes only farmers’ privilege as being ‘optional’, and ‘within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder’ (Article 15.2). Moreover, as UPOV 1991 grants exclusive rights with regard to a a wider range of acts, it also provides for exceptions to these rights, including the revocation based on lack of uniformity and stability of a variety, as well as the principle of exhaustion of rights. With regard to UPOV 1978, there are some provisions which are not found in UPOV 1991, and which indicate a somewhat larger freedom to implementing States. These include the public interest provisions in the preamble, a possibility to limit the application of the treaty to certain varieties with a particular manner of reproduction or propagation in Article 2.2, as well as a restriction of the situations qualifying for paying equitable remuneration in cases of granting of compulsory licences in Article 9.2. 9.2
Requirements of an Effective Sui Generis System
9.2.1
Introduction
In order to be in conformity with the TRIPS Agreement there must be in place an effective sui generis (‘of its own kind’) system for plant varieties. A State can develop an effective sui generis legislation for the protection of plant varieties without necessarily becoming part of any of the UPOV Conventions. The UPOV secretariat can, however, provide important advice in national legislation processes. This section will identify the requirements that must be fulfilled in order to be in compliance with TRIPS. For the purpose of this study, the TRIPS requirements, not UPOV, are the focus of the analysis. The compromise found in the final drafting of TRIPS for establishing TRIPS compatible protection for plant varieties, is important for this study. The ‘effective sui generis system’ was introduced in the negotiations when it became clear that there were too diverse opinions regarding the protection of plant varieties, which at that time were only protected in very few developing countries. How far the flexibility under Article 27.3(b) extends has not been decided by any interpretation from the TRIPS Council or the dispute settlement system. The Appellate Body has only confirmed that plant variety protection is recognized as an independent category of intellectual property. The Appellate Body directly stated that the omission of the reference to other intellectual property rights than those listed as titles in the various Sections of Part II of the TRIPS Agreement, in effect would mean that “…such sui
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generis rights would not be covered by the TRIPS Agreement.”32 Therefore, the Panel was mistaken in not identifying plant breeders’ rights as a category of intellectual property recognized by TRIPS. The same structure as was applied in Chapter 8.2 and 9.1 above will be applied in the analysis below. While parts of the following analysis will, to some extent, be similar to the analysis of Chapter 9.1, the basis of the two are substantially different, as this section identifies the ‘effective system’ requirement of TRIPS Article 27.3(b). 9.2.2
Considerations for Developing States
Before undertaking an analysis of the requirements of an ‘effective sui generis system’, the particular situation of developing States is highlighted. For farming-dependent developing States, access to seeds and access to food are crucial.33 Most African States are in a particularly disadvantaged situation with regard to plant breeding. The economy of these States is dependent upon agriculture, and recessions in the agricultural economy will hurt the whole economy. African States therefore have a joint interest in ensuring the interests of their farmers. At the same time, most of them are obliged to implement TRIPS. Developing States can adopt and implement legislation for the protection of plant varieties adapted to their particular conditions, with a large number of farmers, but only a small number of breeders.34 Important considerations in any assessment of an ‘effective sui generis system’ would be if the legislation and the implementation of this legislation is in conformity with the ‘spirit’ of the TRIPS Agreement and implemented in good faith, but also if the particular needs of developing States are taken care of. There are two tendencies in Africa regarding the protection of plant varieties. First, there is adoption of UPOV-compatible plant variety protection through regional coordination.35 The most relevant example is the African Intellectual Property Organization 32 United States - Section 211 (WT/DS/176/AB/R) paragraph 335. The Appellate Body continued:
the Panel […] fails to take into account that the phrase ‘the subjects of Section 1 through 7 of Part II’ deals not only with the categories of intellectual property mentioned in each section title, but with other subjects as well. For example in Section 5 of Part II, entitled ‘Patents’, Article 27.3(b) provides that Members have the option of protecting inventions of plant varieties by sui generis rights (such as breeder’s rights) instead of through patents.
Paragraph 335 contains a footnote, 243, which quotes the full text of Article 27(3)(b). 33 See Verma 1995, identifying central concerns for developing countries when adopting their sui generis system. 34 See Straus 1996, p. 186. 35 Kuyek, 2002, p. 10. World Bank staff are told to “…focus efforts on the quality of our persuasion and on extending discussions to more countries, rather than on conditionalities and pressure on any one country” with the aim that “…a regional and competitive seed industry may begin to serve a majority of African farmers within five years” (World Bank 1998, Annex 2). Moreover, see Cortes 1999, p. 23: “What we have right now are our seed companies going to battle against countries, one to one, to try to get policy changes made. It can’t work that way, it’s too difficult. Companies cannot go straight into countries to ask them to change things. However, if this is done through regional harmonization, they find out very quickly
Effective Sui Generis Systems for the Protection of New Varieties of Plants
(OAPI).36 The OAPI revised its Bangui Agreement in 2000 in order to make it fully compatible with TRIPS. They based it on the 1991 Act of the UPOV Convention, based on the advice of UPOV. Legislation compatible with UPOV 1991 can be chosen as this will make the breeding sector more attractive for foreign companies.37 Second, the OAU (Organisation of African Unity – now African Union) endorsed a ‘Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources’ (OAU Model Law) in 1998, with a final version adopted in 2000. One of the objectives of the Model Law was to help African WTO members to implement Article 27.3(b) of TRIPS.38 The African Model Law is particularly relevant for identifying the elements of an ‘effective sui generis system’ for the protection of plant varieties, according to the requirements of TRIPS Article 27.3(b). The entry into force of the TRIPS Agreement has led to increased interest in becoming members of UPOV. It must be noted, however, that this treaty is developed by industrialized States, with very few developing States involved in the negotiations.39 No UPOV provision takes account of the situation for developing States. As TRIPS provides a very general requirement with regard to plant variety protection, UPOV membership is not required in order to be in compliance with TRIPS.40 Moreover, while UPOV 1991 is currently the only act of the UPOV Convention which is open for new memthat the approach really does work.” (Cortes is at the Seed Science Centers at Iowa State University). 36 This organization has the 16 Francophone African countries as members. 37 The companies can also be pushing for the introduction of legislation in accordance with UPOV 1991, threatening to stay out, unless appropriate legislation and enforcement possibilities are in place. 38 Ekpere 2000, p. 7, reports that one of the objectives of the Model Law was: “Help OAU Member States which are members of WTO to fulfill one of their objectives, that of Article 27.3(b) of the TRIPs Agreement.” Ekpere worked for the Scientific, Technical and Research Commission of OAU. Regarding the OAU’s Model Law’s compatibilty with TRIPS, the answer can be based on Article 9.1 of the Model Law, which reads: Patents over life forms and biological processes are not recognized and can not be applied for.
This provision is not compatible with TRIPS Article 27.1, which states that the patents shall be available for any invention in all fields of technology, and TRIPS Article 27.3(b) which states that micro-organisms and micro-biological processes cannot be excluded from patentability. The prohibition of patents on biological processes is compatible with TRIPS. Therefore, on the strict issue of compatibility, the answer is rather straightforward, as the Model Law prohibits something which TRIPS mandates. 39 As late as in 1997, the only developing country UPOV member States were Argentine, Chile, South Africa and Uruguay; see: <www.isaaa.org/Resources/Publications/briefs/briefs_ 3.htm>. 40 There are differences between the assessment of the relevant legislation by the TRIPS Council and the UPOV Council. The UPOV Council’s assessment determines ex ante as to whether a State can become a UPOV member, while the TRIPS assessment ex post can lead to recommendations that the law is amended.
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bers, UPOV 1978 also provides TRIPS-compatible standards. The main negotiations on TRIPS took place in 1990, when UPOV 1991 was only a draft. In conclusion, States have the choice whether they want to comply with the significantly stricter requirements of UPOV 1991 compared to UPOV 1978. A State can also be in compliance with Article 27.3(b) of TRIPS without adopting legislation in compliance with UPOV, provided the system for protection is ‘effective’. 9.2.3
What is ‘Effective Sui Generis’ Understood to Imply?
An ‘effective sui generis system’ can be based on provisions found in UPOV 1978 and UPOV 1991, but can also be based on specific national legislations or TRIPS provisions.41 There are two ways of approaching an analysis of the requirements of an ‘effective sui generis system’, either by emphasizing the substantive standards, or by emphasizing the procedural requirements, particularly relating to enforcement. The latter is addressed first. If a system shall be compatible with TRIPS, effective enforcement must be considered to be implicit. Plant variety protection is an independent category of intellectual property recognized by TRIPS. Article 41.1 reads (extracts): Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement...â•›.
This provision applies also to plant variety protection, as recognized in Article 27.3(b). At the same time, it must be noted that the UPOV Convention, which is accepted as a standard by which States can implement Article 27.3(b) is weak on enforcement provisions. There are no similar provisions in the UPOV Convention to those of Part III of the TRIPS Agreement, which outline the national procedures to enforce intellectual property rights. The only requirement of UPOV 1991 on implementation of the Covenant, is Article 30.1(i) concerning ‘appropriate legal remedies’. Similar provisions are found in UPOV 1978 Article 30. These provision are less explicit than those found in Part III of TRIPS. What are the requirements of an ‘effective sui generis system’? A study highlights four minimum requirements of such system:42 First, the law must apply to all plant varieties. If this means that no plant varities as such cannot in principle be excluded from protection, the present author agrees with this requirement. If on the other hand, this means that all plant varieties within all plant genera or species must be protected from the day the ‘effective sui generis’ legislation is in force, the present author disagrees with this requirement. The minimum requirements of TRIPS can be based on UPOV 1978, where there is no requirement that all plant varities within all genera and species must be protected from the day the legislation is in force, as explained at the end of Chapter 9.1.1. The second requirement of an effective sui generis system is that there must be an exclusive right to control certain acts relating to the protected plant varieties. Third, the 41 IP/C/W/273/Rev.1 of 18 February 2003, where both Iceland and United States report to have a sui generis form of protection (and neither of the two applies the term ‘effective’). 42 Leskien and Flitner 1997.
Effective Sui Generis Systems for the Protection of New Varieties of Plants
law must provide national treatment and most-favored nations treatment to other WTO States. Fourth, the law must contain procedures to make it possible for the right holder to enforce the rights granted. Based on the analysis in Chapter 9.2.4 to 9.2.7 below, it will be possible to assess these four requirements. The aim is to identify which flexibility an ‘effective sui generis system’ provides, based on the fact that at least UPOV 1978 is compatible with TRIPS.43 There is no definition of an ‘effective sui generis system’. When the TRIPS Council issued a document, containing compilations of the responses to a questionnaire, within the scope of the ‘review’ of Article 27.3(b),44 the term ‘effective’ was not applied, only the phrase ‘sui generis system’. This document has two main parts, concerning information on national legislation for the protection of plant and animal inventions, as well as concerning information on national legislation for the protection of plant varieties. The most relevant part is on the requirements of a ‘sui generis system’. The fourth question of the questionnaire applies to those WTO member States which have adopted an effective sui generis system for the protection of plant varieties. Through 12 specific points, under question 4, well-known provisions from plant variety protection are included. The procedures for the acquisition of rights, the administration of rights, and the enforcement of rights are included in the questionnaire, implying an expectation that the right holders shall have possibilities to exclude the commercial exploitation by others as under a UPOV-compatible legislation. The scope of exceptions in the questionnaire is not very different from the scope of exceptions found in UPOV 1978 and UPOV 1991. The questionnaire does not indicate a preference for one of the two Acts of the UPOV Convention. Of the various categories of acts that are listed (research, development, commercializations of such developments, ‘farmers’ privilege’, private and non-commercial acts and compulsory licensing), there are, however, certain provisions which are not included in this questionnaire. The questionnaire does not include any questions on forfeiture or revocation. Both acts of the UPOV Convention recognize such exceptions.45 Therefore, the questionnaire issued by the TRIPS Council does not bring up all relevant considerations arising from the TRIPS Agreement. Moreover, while the questionnaire does not elaborate on the term ‘effective’, it is clear from the context in which the 43 It must be noted that UPOV 1978 includes certain provisions which cannot directly provide a basis for an ‘effective sui generis system’, however. First, UPOV1978 includes time-bound thresholds on the number of genera and species for plant varieties which protection shall be available for plant varieties (Article 4.3 which was repealed by Article 3.1 of UPOV 1991). Second, UPOV 1978 has provisions on national treatment and reciprocity which apply only to other UPOV members (Article 3), and are therefore not in compliance with TRIPS, as the latter applies the most-favored nation principle. The solution for States which are parties to both UPOV 1978 and the WTO Agreement, is hence to state explicitly in their plant variety legislation that the national treatment and most-favored nation-provisions as recognized in Article 3 and 4 of TRIPS apply in their relations with all WTO member States. 44 IP/C/W/273/Rev.1. 45 See Chapter 9.1.4. In TRIPS Article 32, the basis for revocation or forfeiture is not defined, allowing for such acts also on the grounds of public interests; see Gervais 2003a, p. 254 and Watal 200b, p. 111.
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phrase appears – Article 27 of TRIPS – that an effective system must be an intellectual property system, with adequate standards and procedures. It seems insufficient only to recommend any sui generis legislation be developed, as is done in some studies.46 Therefore, the ‘effective sui generis system’ requirement must be met primarily by its substantive provisions, and such system must also be in compliance with Part III of TRIPS on enforcement provisions. 9.2.4
Eligibility Criteria
In order to identify the requierements of an ‘effective sui generis system’, it is natural to start with the eligibility criteria. There are two interesting questions. First, to which extent are the States free to determine their own legal criteria for protection of plant varieties? Second, to which extent can varieties which do not meet the UPOV requirements be protected by an ‘effective sui generis system’. Only plant varieties can be protected: The plant variety protection extends to a plant variety as such. There is no obvious biological classification of a variety.47 While FAO defines plant variety as a ‘subdivision of species with distinct morphological characters’,48 UPOV provides a more elaborate understanding of what constitutes a variety.49 There
46 The use of the sui generis concept is used as a crucial tool in several studies seeking to give guidelines for national implementation of new forms of protection, inter alia, Correa 2000b on farmers’ rights, and Dutfield 2001b on ‘traditional resource rights’. These studies do not primarily aim to study the TRIPS compatibility, but rather to identify the elements that should be included in national legislation to regulate these ‘new’ rights. 47 See Funder 2001, pp. 73-89, comparing ’variety’ with ’species’ or ’genus’, the latter being more clearly defined. Greengrass (in WIPO 1990, p. 40, paragraph 166) asserts: “The ‘variety’ was an abstract concept which has been developed by users of plant varieties […] to assist in the classification of plant material.” 48 FAO 2001a. 49 Article 1(vi) of UPOV 1991 states: “’variety’ means a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder’s right are fully met, can be – defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, – distinguished from any other plant grouping by the expression of at least one of the said characteristics and – considered as a unit with regard to its suitability for being propagated unchanged;”
Effective Sui Generis Systems for the Protection of New Varieties of Plants
are other definitions provided by courts.50 Plant varieties are the only category within the taxonomical system which is regulated by its own intellectual property system.51 Legal criteria: As shown in Chapter 2.3.1 above, the threefold criteria of distinctiveness, uniformity and stability (DUS) are established concepts for identifying a plant variety, in addition to the novelty criterion. The requirement of an effective sui generis system implies that those varieties that are eligible for protection by meeting these clearly defined criteria shall be proctectable.52 The stability criteria is particularly difficult to fulfill: to qualify for protection, its characteristics must remain unchanged during repeated propagation. The minimum requirements of an ‘effective sui generis system’ imply that examinations of distinctiveness, uniformity and stability are undertaken in accordance with the established standards under plant variety protection law. A State may, however, develop its own definitions in order to act in compliance with an ‘effective sui generis system’, based on the definitions of UPOV 1978, UPOV 1991 or other relevant sources. Regarding the first question raised above, the States implementing Article 27.3(b) by adopting an ‘effective sui generis system’ are required to apply the DUS criteria, but can adapt these criteria to their own circumstances and interest. With regard to the second question above, it will now be analyzed whether a State, within the context of an ‘effective sui generis system’ is allowed to introduce protection for varieties other than those meeting the UPOV requirements. More specifically, can farmers’ varieties, which most commonly do not display sufficient uniformity and stability to be protectable under plant variety legislation, be included in a sui generis system – for the benefit of local farming communities?53 TRIPS is silent on the forms of protection not recognized in Part II. Hence, TRIPS can be understood as not specifically excluding the possibilty of establishing systems for recognition of intellectual efforts, provided that this does not affect the acquisition, enjoyment and enforcement of intellectual property rights recognized by TRIPS. First, there will be an analysis of rights relating to farmers’ varieties. Second, the wider concept of farmers’ rights will be examined.
50 The European Patent Office’s Technical Board of Appeal (EPO T0356/93, Official Journal EPO 1995, p. 545) defines plant variety as “a plant grouping within a single botanical taxon of the lowest-known rank which, irrespective of whether it is protectable under the UPOV Convention, is characterised by at least one single transmissible character distinguishing it from other plant groupings and which is sufficiently homogeneous and stable in its relevant characters.” 51 Bryde 2004, p. 8. 52 See, however, Crucible Group 2001b, pp. 154-155, presenting arguments in favor of and against replacing the ‘uniformity and stability’ criteria with one single ‘identifiability’ criterion. 53 See the OAU Model Law Article 25, applying the term ‘farmers’ varieties’, and the ITPGRFA Article 9.
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Farmers’ varieties: Regarding farmers’ varieties, the strict procedures for identifying UPOV-compatible legislation before a State can join UPOV,54 must be noted. The UPOV Council, however, can only make an assessment of the respecive legislation’s conformity with the relevant Act of the UPOV Convention, in other words, if there are no provisions of the UPOV Convention missing in the national legislation, and if there are provisions in the national legislation which contradict the UPOV Convention.55 The only State which has formally requested UPOV membership based on a legislation which also recognized farmers’ varieties as being protectable, is India.56 The conformity of this legislation with the UPOV Convention is still being assessed by the UPOV Consultative Committee, but no information from this exercise is public yet. Provided that the implementation of the TRIPS Agreement is not made more difficult, implying that its provisions cannot be given effect, there is nothing in TRIPS which excludes that an ‘effective sui generis system’ is formulated so as to include varieties which are not recognized under UPOV. Farmers’ rights: An understanding of the concept ‘farmers’ rights’ is also relevant to this study. Since the concept ‘farmers’ rights’ first appeared in the FAO in 1989,57 there is no
54 See Chapter 3.4.1, identifying Article 32.3 of UPOV 1978 and Article 34.3 of UPOV 1991 as the basis for new accessions, based on “…the conformity of its laws with the provisions of this Act…” 55 Senior Legal Officer in UPOV, Yolanda Huerta, personal communication 2 June 2005. 56 Protection of Plant Varieties and Farmers’ Rights Act 2001, No. 53, Section 39. For perspectives on the process, see Cullet 1999 and Cullet 2001 (in particular pp. 219-220). For an analysis of the final act, see Ramanna 2003 and Ramanna and Smale 2004. The four categories of varieties regulated in the act are: New Variety, Extant Variety, Essentially Derived Variety and Farmers’ Variety. Portugal has also recognized ‘farmers varieties’ as giving rise to exclusive rights (Portugese Decree-Law 118/2002 of 20 April 2002; see: <www.wipo.int/tk/en/laws/>), but in a separate law). The term applied is ‘local varieties’ which is defined as similar to ‘landraces’. Article 2.1 identifies the varieties covered by the Decree-Law and excludes those “that are protected by intellectual property rights or relating to which there is an ongoing process aimed at providing for such protection”. This provision implies that overlap with UPOV is avoided. 57 FAO 1989a, FAO 1989b; see also FAO 1991, stating that “…Farmers’ Rights will be implemented through an international fund for plant genetic resources which will support plant genetic conservation and utilization programmes, particularly, but not exclusively, in developing countries.” No mechanisms are in force to compensate the farmers for their (less commercial) breeding efforts (Esquinas Alcazar 1996), but paragraphs 13.2(d) and 13.3 of the ITPGRFA includes commercial benefit-sharing with ‘farmers who conserve and sustainably utilize such resources for food and agriculture’; see also Article 18.5.
Effective Sui Generis Systems for the Protection of New Varieties of Plants
common understanding on what farmers’ rights actually imply.58 One could apply three different understandings.59 First, farmers can continue with their traditional practices, in other words farmers’ privilege.60 Second, farmers have a right to benefit sharing.61 This is the basic understanding of the FAO Resolutions,62 and is also recognized by ITPGRFA Article 9.2(b). Third, farmers have a right to set the conditions on the use by others of the varieties which they have developed.63 This is partly recognized by ITPRGFA Article 9.2(a) on protection of traditional knowledge.64 As the concept is still rather vague and imprecise, it will not be central in the analysis, but the introduction of the principle of farmers’ rights, seeking to balance these rights with plant breeders’ rights, deserves merit.
58 The concept of farmers’ rights has a weak legal standing in the UN human rights mechanisms. A letter signed by more than 300 non-governmental organizations 27 June 2001 called upon the UN Commission on Human Rights to ‘set aside’ time on farmers’ rights within the right to food negotiations; see <www.ukabc.org/iu3b.htm#3>. The only human rights reference to farmers’ rights is made in the updated study prepared for the Sub-Commission on the Protection and Promotion of Human Rights, “The right to adequate food and to be free from hunger” (E/C/N.4/Sub.2/1999/12) says in paragraph 121: “Whereas commercial interests have recourse to rights such as IPRs, farmers typically have no formal rights, and no protection associated with their activities. Farmers’ rights should be given attention by the human rights community…” 59 See Ramanna and Smale 2004, p. 426. 60 Le Buanec (CGIAR 1998d, Annex D-3) gives an example of an understanding of farmers rights, in which the importance of farmers’ rights relates to the continuation of their practices: availability of sufficient genetic variability; right to continue to do their own breeding work; and use of harvested seeds on their own holdings. 61 Paragraph 3 in Resolution 3/91 states that the FAO Conference endorses ”that Farmers’ Rights will be implemented through an international fund for plant genetic resources which will support plant genetic conservation and utilization programmes, particularly, but not exclusively, in developing countries.” 62 FAO 1989b and FAO 1991. 63 For an analysis of farmers’ seed production, see Almekinders and Louwaars 1999. Moreover, there has been an attempt to define farmers’ rights exclusively as an IPR system, see Greengrass 1996. See also Pires de Carvalho 2005, p. 246, arguing in favor of developing an international sui generis system for the protection of landraces (see also Wood 1998, p. 24). Pires de Carvalho 2003, however, finds that the current system which has recognized farmers’ rights is not intellectual property, but rather a sort of ‘paid public domain’. 64 Correa 2000b, especially Chapter VII assesses what can be done to implement farmers’ rights at the national level, identifying measures within all of the four dimensions of farmers’ rights as recognized in Article 9 ITPGRFA: protect traditional knowledge, the right to benefit-sharing, the right to participation and the right to save, use, exchange and sell seeds. Regarding benefit-sharing, Srinivasan 2003, p. 445, concludes that the implementation of farmers’ rights is not likely to give great benefits to the farming communities, and can impede the incentives for plant breeding innovation. Falcon and Fowler 2002, p. 209, writing in the context of the CBD, finds that national legislations are “…designed more to prevent abuse than to maximize benefits.”
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All these three dimensions are recognized in Article 26.1 of the OAU Model Law, as well as in Guideline 8.12 (Genetic resources for food and agriculture) in the Voluntary Guidelines.65 Except for the term ‘specific attributes’, there are no requirements for the registration of farmers’ varieties under Article 25 of the OAU Model Law. This article explicitly states that farmers’ varieties do not have to meet the criteria of distinctiveness, uniformity and stability. This indicates that the subject matter of Part V (Farmers’ rights) of the OAU Model Law falls outside the scope of the TRIPS Agreement.66 An interesting article of the OAU Model Law with regard to the compatibility with TRIPS is Article 26. Article 26.1(e) recognizes the right to ‘use a new breeders’ variety to develop farmers’ varieties’.67 This right will, under normal circumstances, fall under the breeders’ exemption, as recognized in Article 5.3 of UPOV 1978.68 This provision is therefore not problematic, neither with regard to TRIPS, nor with regard to UPOV. These observations that this is an appropriate basis for the drafting of any ‘effective sui generis system’ is confirmed by Article 26.2 of the OAU Model Law, prohibiting the selling by farmers of the propagating material of a breeders’ protected variety.69 This paragraph excludes from the scope of farmers’ rights any acts in which the farmer represents a competitor to the breeder, based on commercial interests. Contrarily, farmers could seek to compete with the breeders by developing seed-banks. Some of the provisions from the OAU Model Law can therefore be included in an ‘effective sui generis system’ that shall only be compatible with TRIPS. There are, however, other provisions from the OAU Model Law which are manifestly incompatible with TRIPS. One of them is analyzed below. Different criteria: In this context on eligibility criteria, an interesting provision from the OAU Model Law is found in Article 43 on ‘plant varieties originating from outside the country’, which sets stricter standards for determining that such varieties have particular characteristics. Any State should apply the standards for determining if a variety meets the requirements for being protectable in a correct manner. Identifying particular procedures for foreign varieties in the relevant legislation, however, must be considered to be contrary to Article 27.1 of TRIPS. Article 27.1 states that there shall be no “…dis-
65 FAO 2004b. 66 Hence, farmers’ rights do not represent an ‘effective sui generis system’ by the TRIPS requirements. 67 Article 26.1(e) recognizes the right to “use a new breeders’ variety protected under this law to develop farmers’ varieties, including material obtained from gene banks or plant genetic resource centers.” 68 The relevant paragraph on breeders’ exemption in UPOV 1991 is Article 15.1, more specifically paragraph 15.1(iii), stating that breeders’ rights shall not extend to acts done for the purpose of breeding other varieties, provided that Article 14.5 on essentially derived varieties does not apply. 69 Article 26.2 reads: “Notwithstanding sub-paragraphs c) and d) [on decision-making and selling of farmers’ varieties] the farmer shall not sell farm-saved/propagating material of a breeders’ protected variety in the seed industry on a commercial scale.”
Effective Sui Generis Systems for the Protection of New Varieties of Plants
crimination as to the place of invention, the field of technology and whether products and imported or locally produced.”70 Therefore, even if the dispute settlement panel has found that Article 27.1 can be interpreted as to allow for bona fide exceptions in individual cases, decided on individual merits,71 a legislation which is built on discrimination between national and foreign varieties, cannot be said to be an ‘effective system’ within the meaning of Article 27.3(b). 9.2.5
Exclusions from Plant Variety Protection
There is no tradition of including provisions on ordre public and morality under plant variety protection. A State which shall adopt a TRIPS-compatible system of protection could build upon the additional exclusion criteria compatible with TRIPS Article 27.2. TRIPS Article 27.2 has two important requirements. First, a national prohibition is not a sufficient basis for exclusion. Second, the exclusion from plant variety protection must be ‘necessary’. The analysis below will identify the minimum requirements of an ‘effective sui generis system’ in order to meet these requirements. A State which implements Article 27.3(b) by adopting an ‘effective sui generis system’ for the protection of plant varieties could include environment-related exclusion provisions, provided that these provisions are based on Article 27.2 of TRIPS, but the provisions could, in addition, be based on national legislation or treaties to which they are bound. Of particular relevance in the context of this study is whether human rights principles, or interests protected by human rights provisions can form the basis for an ‘exclusion from protection’ provision in an ‘effective sui generis system’. The main analysis on the relationship between human rights and intellectual property rights will be on Part IV of this study, but whether human rights can be included in – or referred to – in an exclusion provision is relevant to analyze in the current section. There can be no doubt that an ‘effective sui generis system’ can be based on treaties by which the State is bound. Moreover, such a system is not primarily to be based upon the UPOV Convention, which does not include strong public interest provisions, but rather on TRIPS, which is the first intellectual property treaty which explicitly states that social welfare and techology transfers are objectives.72 The argument for why human rights might be included in an exclusions provision, preventing the protection of a specific plant variety, is that any resulting exploitation of this variety adversely affect the access to and distribution of propagating material and food produced by this material. Such situation will make the enjoyment of the right to food more difficult. Can an ‘effective sui generis system’ potentially include exclusion provisions which state that plant variety rights may not be granted if such exclusion is
70 Moreover, Article 6 of UPOV 1978 and Article 5 of UPOV 1991, respectively, states that there shall be no additional conditions for the grant of breeders’ rights. 71 WT/DS114/R, paragraph 7.92. 72 TRIPS Article 7. See, nevertheless, the Agreement between the United Nations and the WIPO (WIPO 1975), where the mandate of WIPO is defined in Article 1 as “…facilitating transfer of technology […] in order to accelerate economic social and cultural development.”
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necessary to allow distribution of food (accessibility) in order to ensure the realization of the right to food?73 Based on the need to protect the interests of persons who depend on access to food, it will be analyzed whether these interests can be the basis for any exclusion provision. For the purpose of this study, it is not found that there are other human rights provisions that are relevant in the context of exclusions.74 The analysis will be based on Article 27.2 of TRIPS. It was demonstrated in Chapter 8.2.3 above that morality can be a basis for excluding GUR technology from patentability. The same reasoning applies to plant varieties,75 and it is not considered to be necessary to elaborate in more detail about this: an effective sui generis system does not prevent States from including provisions saying that GUR technology can be excluded. Chapter 8.2.3 also found that the environmental concerns included in Article 27.2, particularly extend the scope of this provision and that particularly the phrase ‘protect human or plant life or health’ is interesting, as it relates to the subject matter of human rights, and as the threshold for its application cannot be considered to be as high as the phrase ‘serious prejudice to the environment’. The analysis below will therefore focus on exclusions based on the necessity to protect ordre public as well as the necessity to protect human or plant life or health. More specifically, can the right to food be an additional basis for the exclusion from protection under an effective sui generis system, based on Article 27.2 of TRIPS? With regard to the right to food, there are obligations on the respect, protect and fulfill level. The wording of the Covenant gives States a certain margin of discretion, but at the same time, there are specific terms (‘fundamental’, ‘ensure’ and ‘shall take measures’) of Article 11 which indicate that the States are under relatively strong obligations as imposed by the right to food. Moreover, there is an obligation to use all appropriate means to achieve the full realization of human rights (Article 2.1). The first relevant situation regarding food and plant variety protection is that there is actually a lack of food of such magnitude that the ordre public is threatened. One could foresee a situation where the number of hungry people is high and increasing, where non-protected plants are being replaced by protected plant varieties, and where 73 The term ‘ensure the realization’ is taken from Article 11.1 in the Covenant. 74 An exceptions and limitations provision (see Chapter 9.2.7 below) can be based on human rights principles and provisions, including the rights of peoples over their natural resources, including the prohibition against the deprivation against such resources (Article 1.2 of the Covenant); the obligations relating to research and the right to enjoy the benefits of scientific progress (Articles 11.2(a) and 15.1(b) of the Covenant); or the rights of traditional breeders (Article 15.1(c) of the Covenant – see Chapter 6.1.3 on the protection of the interests of traditional breeders. There are legitimate concerns that the value of the material provided by traditional breeders will have less value when another material is given exclusive protection with possibilities for commercialization.) These human rights provisions relate to breeders exemption and farmers’ privilege. 75 Under an effective sui generis system, provisions may be included that make it possible to exclude varieties containing GUR technology from protection. With the exception of Article 2.2 of UPOV 1978, there are, however, no provisions on exclusions in the UPOV Convention.
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the plant varieties are owned by actors who are not able to provide such varieties in adequate quality or quantity. Also, when the protected varieties are not GURTs, this represents a serious situation. Hence, in such situations, there are several possibilities, including measures taken by the regulatory authorities. Food riots and other consequences resulting from lack of food can have, as a consequence, that the ‘public order’ is threatened, but there is a higher threshold to claim that the ordre public is threatened.76 An ‘effective sui generis system’ which does not build strictly on TRIPS terms is possible, hence giving more possibilities for the exclusion from patentability. Therefore an exclusion provision in an ‘effective sui generis system’ can include the term ‘public order’. Such provisions which deviate from TRIPS might be questioned by the TRIPS Council, but can be justified by references to Articles 7, 8, 27.177 and 30. If ‘public order’ is included as a grounds for exclusion, food accessibility can fall within the scope of this provision. At the same time, the exception provisions might also be applicable, and can be as relevant at the exclusion provions in order to combat hunger. The second situation regarding food and plant variety protection relate to a situation with concerns for the human or plant life or health. Concerns relating to human life must be considered to be the most serious, while concerns relating to plant health are considered as being the situation with the lowest threshold for its application. Protection of plant health must be understood in the context of ordre public and morality, however, as the term ‘including’ introduces the two environmental concerns. A situation which might arise is the adventitious spread of plants into the wild. This can no longer be considered as merely hypothetical and speculative, in particular with regard to transgenic plants,78 which are potentially dominant over other plant in a different manner than plant varieties. Such spread could have consequences for the health of the plants found in the wild. Moreover, if the transgenic plants are dominant over traditional plants cultivated in the fields, these traditional plants can also be seriously affected. This might negatively affect ordinary cultivation while the transgenic plants are being removed, and hence have implications for the right to food. Finally, the issue of lack of biological diversity, resulting from the growing or uncontrolled spread is also a concern with regard to the right to food. Hence, there might be situations where plant health is a legitimate concern which could provide for the exclusion of plant variety protection under an effective sui generis system. At the same time, the regulatory authorities are probably more appropriate in deciding that a plant variety shall not be released, due to the undesired consequences. In conclusion, it is found that concerns relating to food, in general, and principles arising from human rights provisions, in particular, can be included in provisions under an effective sui generis system on exclusion from protection. 76 Gervais 2003a, p. 222. 77 This is based on Canada – Pharmaceuticals (WT/DS117/R), paragraph 7.92: “Article 27 does not prohibit bona fide exceptions to deal with problems that exist only in certain product areas.” 78 See Chapter 8.2.3 above for details.
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9.2.6
Exclusive Rights
The study will now define which acts are found to fall within the scope of the exclusive rights. As already stated, an ‘effective sui generis system’ does not necessarily have to be based on UPOV 1991. UPOV 1978 provides a basis from where an analysis can be undertaken. Article 5.1 of UPOV 1978 states that the exclusive right of the owner is to prevent others from producing, marketing or selling the propagating material of the variety. Could an ‘effective sui generis system’ include standards different than those of UPOV 1978? In order to meet the criteria of being an ‘effective sui generis system’, there can be no requirements of including additional acts in this list of what are the exclusive rights of the right holder. It is therefore found that there are no requirements to extend rights also to acts involving offsprings,79 as this is not a requirement of the UPOV 1978.80 Article 5.3 of UPOV 1978 states, however, that authorization from the breeder is required ‘when the repeated use of the variety is necessary for the commercial production of another variety’. Three observations are relevant in this regard. First, acts undertaken on the farm do not represent direct competition with the breeder. Second, the right holder selling protected seeds to a farmer has already had the opportunity to exercise his rights with regard to the protected seeds. Third, it is difficult to control the reuse of protected seeds, both on the farm and in not-for-profit exchange of seeds between farmers.81 Nevertheless, it cannot be excluded that a farmer can also be involved in the commercial production and resale of protected plant varieties, which have been multiplied on his or her farm.82 In these instances, the farmer is no longer an ‘end-user’, but represents a competitor to the original breeder. If propagating acts which take place on the farm are to be classified as ‘commercial’ they must be on a certain scale, and for the purpose of gaining a profit. In order to examine the scope of the exclusive rights of the breeders under an ‘effective sui generis system’, there will be an examination of two provisions of the OAU Model Law, to see if they can be included in such a system. It is emphasized that the provi79 See Swanson 2002, Chapter 1, and Goeschl and Swanson 2002, p. 219, for an argument in favor of extending protection to all subsequent progeny, as innovative plant varieties can be reproduced and resold by others than the breeder, and hence have negative consequences for future research investments. 80 Such extension of the right to subsequent offspring is a requirement of the 1991 Act of the UPOV Convention, Article 14.2, ‘unless the breeder has had reasonable opportunity to exercise his right in relation to the said propagating material’. 81 Le Buanec 2003, p. 3, distinguishing between ‘fraudulent use’ by a competitor and ‘final user’ (farmer). 82 See Asgrow Seed Co. vs. Winterboer – 513 US 179 (1995), where the US Supreme Court held that under farmers’ privilege of the US Plant Varieties Protection Act, a farmer “…may sell for reproductive purposes only that amount of seed as he has saved for the purpose of replanting his own acreage.” See also Busch 2002, pp. 68-80, Crucible Group 2001b, p. 170 and Hamilton 1993, pp. 633-639, the latter writing on the Winterboer case before the Supreme Court decision.
Effective Sui Generis Systems for the Protection of New Varieties of Plants
sions also relate to farmers’ privilege which is analyzed in the section below (‘Exceptions and limitations’), and a clear line between the analyses in these two sections cannot be drawn. In accordance with Article 31 of the OAU Model Law, farmers are allowed to undertake a number of acts. Most of these acts relate to non-commercial activities, and are not considered to affect the enjoyment of plant breeders’ rights. There is one paragraph of the OAU Model Law, however, which is found to be potentially problematic in light of the ‘effective sui generis system’ requirement. Paragraph (b) of Article 31 allows for selling of plants for purposes other than propagation.83 Paragraph (c) of Article 31 allows for the selling of plants or propagating material grown on a farm within the farm without any restrictions as to the end use.84 These two paragraphs therefore set restrictions on what can be done with the propagating material of a protected variety: this material cannot be sold to outsiders for propagating purposes. With regard to Article 31(b) of the OAU Model Law, it is an accepted practice that farmers can sell plants or propagating material of his own harvest for food. If the seller makes sure that what is sold is not used for propagating purposes, such selling for food cannot be said to represent any infringement of the plant breeders’ rights.85 While the subsequent use of the purchased material is difficult to control, the farmer who sold the propagating material for food, and hence acted in good faith, cannot be held liable if the material is later used for propagating and commercial purposes. With regard to selling within the farm, this poses difficult questions regarding the ownership patterns on the farm. The situation covered by Article 31(c) of the OAU Model Law must be presumed to be a large farm with several farmers operating under some contractual relationship with the owner of the whole farm. Provided that these circumstances are met, paragraph (c) of Article 31 applies as to allow the selling between farmers operating on this farm. This is a complex issue. Some general observations will be made. The farm per se is one legal entity, even if there are several farmers operating on the farm. The market generated within one such farm can be rather limited, but can also represent competition between the farmer and the breeding company. Moreover, it must be brought into the consideration whether there has been an active marketing of the protected variety by the farmer, and hence if this farmer has primarily commercial motivations. A final consideration is that while the farmers themselves might grow on rather small plots, the whole farm might be of a considerable size. If there is one owner of the farm, the farmers’ privilege applies to this owner, even if he has entered into contractual relationships with others for the actual cultivation. In the
83 Article 31(b) reads: “…any person or farmers’ community may […] sell plant or propagating material of that variety as food or for another use that does not involve the growing of the plants or the propagation of that variety.” 84 Article 31(c) reads: “…any person or farmers’ community may […] sell within a farm or any other place at which plants of that variety are grown any plants or propagating material of that variety at that place.” 85 See in this context FAO 2006, Appendix G, Article 2 where “…products used for food, feed and processing” are excluded from the scope of the standard MTA.
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European Communities, a distinction has been made between holders of small and large farms, giving to the former more exceptions with regard to plant breeders’ rights.86 As there are several uncertain aspects regarding the situation to which Article 31(c) of the OAU Model Law applies, it is difficult to conclude as to whether the exemption provided for in Article 31(c) of the OAU Model Law can be included in an ‘effective sui generis system’ for the protection of plant varieties, in accordance with Article 27.3(b) of TRIPS. The activities, however, take place within the farm as a legal unit. The provision must be understood in this context. The three acts of producing, marketing and selling cover the potentially infringing acts which are most damaging to the right holder. These are the three acts included in UPOV 1978. These are acts one would reasonably expect would be undertaken by competitors to the right holders. These acts can also be undertaken by a farmer, provided that the infringement is on a certain scale and with a commercial motivation, implying that he or she is a competitor and not an ‘end-user’. Legal means for preventing such acts must be part of an ‘effective system’. The list of prohibited acts under an ‘effective sui generis system’ does not have to include exchange of protected seeds done with a not-for-profit intention. Therefore, a State seeking to implement an effective sui generis system for the protection of plant varieties is not required to include such non-commercial acts in its legislation. Non-commercial exchange of protected varieties does not have to be prohibited in farming-dependent communities, provided that there is no subsequent commercial breeding of the protected varieties, implying that farmers are ‘end-users’ and where these farmers hence do not represent commercial competitors to the breeding companies. Including non-commercial acts in the list of acts requiring the authorization of the right holder – representing potentially infringing acts – could also be contrary to the interests of farming-dependent States.87 Distinguishing between owners of small and large farms gives a rather strong predictability for the breeders, allowing them to exercise their rights as regards remuneration in relation to holders of larger farms.88 A final provision from UPOV 1978 is Article 5.2, which reads: 86 The EC Directive 98/44/EC, giving the right for farmers to propagate and multiplicate a protected material, in accordance with Article 14 of Council Regulation 2100/94, applies not only the term ‘on his own farm’ by also ‘by him’. 87 Formerly Head of Rural Development Division, World Bank Group, Robert Thompson, said at an Oslo seminar 5 February 2003, that more than one third of all food harvest is coming from exchanged seeds between informal innovators, with harvest resulting from seeds held by by public gene banks and by private companies also representing one third each. These numbers are different for developing States, where exchange represents more than 80 per cent of the seed supply (see Sahai 2002). 88 In this context of the exclusive rights, see Directive 98/44/EC Article 11.1 (extracts): “Small farmers shall not be required to pay any remuneration to the holder [of the right].” The most interesting aspect is that this adoption of a diverse strategy for small farmers and industrial farmers was done in States which were the founders of UPOV. This distinction between farmers was introduced in Council Regulation No. 2100/94 on Community Plant Variety Rights and Council Regulation (EEC) No. 1765/92 Article 14.
Effective Sui Generis Systems for the Protection of New Varieties of Plants
The authorisation given by the breeder may be made subject to such conditions as he may specify.
This provision can at one hand be understood to give relatively wide rights to the rightholder. Article 5.2 of UPOV 1978, however, only says that the right holder determines the conditions or fees in a licensing agreement, which is the a standard manner of exercising the exclusive rights. Hence, this does not instruct any State party to include specific provisions in plant variety legislation beyond standard provisions. Period of protection: UPOV 1978 only provides for 15 years of protection, with 18 years for trees and vines. Can an ‘effective sui generis system’ adopt other protection terms? There can be no doubt that UPOV 1978 is compatible with the TRIPS requirements. Therefore, a State providing protection for plant varieties by an effective sui generis system will not be prevented from applying the terms of protection in accordance with UPOV 1978,89 but a shorter period of protection than the one provided in UPOV 1978 cannot be adequate for fulfilling the ‘effective’ requirement.90 9.2.7
Exceptions and Limitations
There are several provisions on exceptions and limitations that can be included in an ‘effective sui generis system’ for plant variety protection. Provisions on public interest protection in TRIPS are not found in UPOV.91 Therefore, if a State has identified the need to establish a plant varieties protection system adapted to its special needs, an effective sui generis system that shall comply with the TRIPS requirements can include provisions which might be justified by one or more of the TRIPS provisions. It will also be examined whether human rights measures relating to food and health, and general public interests can be a part of such exceptions and limitations. Farmers’ privilege and breeders’ exemption: The rights conferred to the right holder do not apply to propagating acts done on one’s own holdings, using harvest from one’s own holdings (farmers’ privilege).92Moreover, the rights conferred do not apply to acts
89 Note that Helfer 2002, p. 32, finds that the obligation to protect all varieties does not require States to provide the same level of protection to each and every variety. There is a distinction in the UPOV Conventions, as trees and wines are given longer protection periods than other plant varieties. 90 Note that the OAU Model Law contains, in Article 34, standards similar to UPOV 1991, namely 20 years, and 25 years for trees and vines. 91 See TRIPS Articles 7, 8, 27.2, 30, 32 (public interest as a basis for revocation), and 40. 92 This is also confirmed by EC Commission Directive 98/44, Article 11.1. See the analysis on the possible application of Article 31(c) of the OAU Model Law in the section above (‘Exclusive rights’).
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performed for private and non-commercial purposes; for experimental or research purposes; or for the purpose of breeding other varieties (breeders’ exemption).93 Human rights principles and provisions can be included in order to strengthen both farmers’ privilege and breeders’ exemptions. Such provisions should be carefully drafted, and be based on Article 8.1 of TRIPS, to ensure that the State seeking to obtain an appropriate balance between private and public interests acts in compliance with its obligations both under the Covenant and under TRIPS. Compulsory licenses, also based on public interest: This study will now analyze whether there is an option under plant breeders’ rights to restrict these rights for reasons of public interests, provided that the right holder receives equitable remuneration.94 Based on the responses to the TRIPS Council’s questionaire,95 compulsory licenses are wellrecognized under plant variety protection. Protection of public interest, including the failure of the right holder to provide adequate amount of the protected variety, must be the basis of any compulsory license provision in an ‘effective sui generis system’.96 To ensure distribution of the variety will allow the farmers to grow sufficient amounts of food and hence provide the food to those depending upon it. Also with regard to compulsory licenses, human rights principles and provisions can be referred to. In the context of public interests more generally, the OAU Model Law contains an interesting provision with regard to compulsory licences. A similar provision is not found in other treaties or legislations. This is Article 33.1(c) which reads: These restrictions might be imposed, inter alia […] where a high proportion of the plant variety offered for sale is being imported.
African States fear that primarily foreign corporations will control the protected plant varieties. This fear is legitimate. African States are in need of developing their own breeding industry. The restriction of the rights of foreign right holders is problematic, however, both with regard to TRIPS Articles 3, 27.1 and 31, and the UPOV Convention Articles 3, 6 and 9 (UPOV 1978) and Articles 4, 5 and 17 (UPOV 1991). The conditions established in Article 33.2 include that the restriction shall be made public, that the conditions for the restriction is made public, and that the right holder shall be compensated. The basis for restricting the rights in accordance with Article 33.1(c) of the OAU Model Law, might give rise to unjustifiable and arbitrary discrimination between the national and foreign 93 Note that authorization from the original breeder is required when the initial variety is necessary for the commercial production of another variety, in accordance with UPOV 1978 Article 5.3. For non-commercial use, there are no similar requirements which state that an authorization from the breeder must be obtained. 94 UPOV 1978 Article 9, UPOV 1991 Article 17: the provisions are similar to TRIPS Article 31 and 44.2. 95 IP/C/W/273/Rev.1 of 18 February 2003, pp. 43-45. 96 See UPOV 1978, Article 9.2: “…to ensure a widespread distribution of the variety…”
Effective Sui Generis Systems for the Protection of New Varieties of Plants
right holders. Hence, this provision of the OAU Model Law can, as it is formulated, not be a part of an ‘effective sui generis system’, even if it is acknowledged that: “Article 27 does not prohibit bona fide exceptions to deal with problems that exist only in certain product areas.”97 Another question is whether it is a requirement of an ‘effective sui generis system’ that equitable remuneration shall be paid to the right holder in all cases of restrictions. With regard to this question, UPOV 1978 and UPOV 1991 give somewhat different answers,98 the former emphasizing ‘widespread distribution of the variety’ and the latter emphasizing ‘acts for which the breeder’s authorization is required’ as qualifying for equitable remuneration if the right is restricted. In general, therefore, it is not found that the OAU Model Law restricts payment of compensation to a larger extent than the two acts of the UPOV Convention. Provisions allowing for the payment of an equitable remuneration to the right holder constitute an element in an ‘effective sui generis system’. The amount of such equitable remuneration cannot be determined in the abstract, but must be determined in light of both the size of the potential market, as well as the financial capacity of the State. Forfeiture or revocation, also based on public interest: Provisions on revocation and forfeiture of plant breeders’ rights can also be available in an ‘effective sui generis system’ for plant variety protection.99 Revocation can be determined if it is found that the legal criteria for protection were not fulfilled. Forfeiture is based on acts taking place after the grant, including the failure to pay fees or assist in providing information or necessary classification (denomination). Can an ‘effective system’ for plant variety protection include other grounds for forfeiture or revocation than those provided by UPOV, including prevailing public interests?100 UPOV does not provide for this. It was found in the analysis of TRIPS in Chapter 8.2.5 that public interests can, under certain circumstances, be a basis for revocation or forfeiture under the Paris Convention and TRIPS, and that the time requirements for decisions on forfeiture or revocation do not apply in these circumstances. In Chapter 9.2.5 above, it was found that in situations of hunger, use of the exception and limitations provisions can be as effective as the ‘exclusion from protection’. Forfeiture, while being a drastic decision, can be such a measure to mitigate the situation when the exercise of the breeders’ right does not go well with the lack of food. Therefore, in light of the relevant provisions of the TRIPS Agreement, public interests can be a basis for forfeiture or revocation without being in conflict with the ‘effective system’ requirement, but any such decision should be taken with the utmost caution, as it will cause negative reactions. Applying forfeiture (or revocation) provisions this way is controversial, but this 97 Canada – Pharmaceuticals (WT/DS117/R), paragraph 7.92. 98 UPOV 1978 Article 9.2; UPOV 1991 Article 17.2. 99 UPOV 1978 Article 10, UPOV 1991 Articles 21 and 22. The terms ‘nullity’ and ‘cancellation’ are also applied by UPOV, but the terms appearing in TRIPS are preferred in the context of this book. 100 The prevailing public interest must be presumed to relate to a serious situation of plant pest or hunger.
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is an example of a provision where TRIPS allows for more flexibility than both UPOV 1978 and UPOV 1991. Public interest: More elaborate efforts of defining a public interest provision which directly relates to breeders’ rights is found in Article 26.3 of the OAU Model Law (Part V regulating farmers’ rights) which reads: Breeders’ Rights on a new variety shall be subject to restriction with the objective of protecting food security, health, biological diversity, and any other requirements of the farming community for propagation material of a particular variety.
Article 26.3 of the OAU Model Law is a restriction provision, not a provision on revocation or forfeiture. It allows for restriction of rights, but without compensation.101 It cannot be expected that restrictions which ensure the interests of the ‘farming community’ shall be subject to the same compensation as other restrictions in the plant breeders’ rights. Moreover, in Article 26.3 of the OAU Model Law, there is no necessity requirement. Finally, the term ‘any other requirement of the farming community’ is vague, but vagueness will also imply that this phrase is of limited relevance, and hence should not be emphasized in great detail. Among these, the lack of a qualifying requirement, such as a ‘necessity’102 requirement is the most interesting. In TRIPS, Article 8.1 is similar, but includes the term ‘necessary’ and subjects the application of this paragraph to the requirement that measures relating to health, nutrition and development “…are consistent with the provisions of this Agreement.” Neither requirements are found in Article 26.3 of the Model Law. There is no doubt that the objectives of food security, health and biological diversity are important and will require the taking of measures for meeting these objectives. Moreover, it should be observed that UPOV 1978 acknowledges in paragraph (b) of the preamble “…the limitations that the requirement of the public interest may impose on the free exercise of [plant breeders’] right.” Could it nevertheless be argued that Article 26.3 of the OAU Model Law is formulated in a manner which must be understood to interfere with the rights of the breeder in an unjustifed manner, and hence is not in compliance with the ‘effective’ requirement of TRIPS? TRIPS sets out limited exceptions in the substantive Part II, most notably Article 30. Limitations or restrictions of rights beyond what is provided for in this article might not be in compliance with TRIPS. The scope of Article 30 is limited due to efforts by 101 Other provisions in the OAU Model Law which regulate restrictions, do recognize compensation to the right holder, in Article 33.2(c) and (d). 102 How the term ‘necessary measure’ is being understood in the WTO dispute settlement system will be dealt with in Chapter 10.2.3 below. Here, the observations by Howse 2002, p. 657, give some indications: “…The Appellate Body suggests that a measure may be found to be ‘necessary’ […] provided that the measure is proportional to the objective, and it has also held that where values such as human life are at stake the margin of appreciation for domestic regulators should be particularly wide.” In building this argument, Howse refers to the EC – Asbestos (WT/DS135/AB/R), and Korea – Beef (WT/DS161/AB/R, parallel case WT/DS169/AB/R) paragraphs 161-164.
Effective Sui Generis Systems for the Protection of New Varieties of Plants
industrialized States, while the developing States sought to have a wider basis for limiting the rights, as in the case of ‘an invention capable of being used for the preparation or production of food or medicine’103 It is difficult to conclude definitively whether Article 26.3 of the OAU Model Law could be included in an ‘effective sui generis system’ in accordance with TRIPS. Compliance with TRIPS must not, on the one hand, make it more difficult to comply with obligations imposed by other treaties, such as the Covenant. Article 26.3 must be read in light of Article 33 of the OAU Model Law, which is more detailed and carefully worded. The main problem is that Article 26.3 is written in an imprecise manner, which could give a too wide basis for abuse. Therefore, restrictions of the rights in the public interest is in principle legitimate, if certain procedural provisions are observed. Therefore, a more carefully drafted provision could be included in an ‘effective sui generis system’ for plant varieties protection, based on the general requirements of TRIPS. Exhaustion: A State implementing Article 27.3(b) on plant variety protection by an ‘effective sui generis system’ can apply the principle of international exhaustion, as this is not excluded by Articles 6, 28104 and 51.105 Summary: This analysis shows that human rights principles can be included in exceptions and limitations provisions of an ‘effective sui generis system’. This can either be done in explicit terms, or implicitly as part of more general public interest principles. 9.2.8
Summary: Requirements of an ‘Effective Sui Generis’ System
Based on this analysis, the four minimum requirements identified in Chapter 9.2.1 (apply to all plant varieties; exclusive rights to control certain acts; national treatment and most-favored nations; procedures for enforcement) must be a part of an effective sui generis system for the protection of plant varieties. Moreover; it is found that the standards of UPOV 1978 provide the basis for identifying an ‘effective sui generis system’. As there are several public interests provisions of TRIPS which are not found in UPOV, an effective system can also be based on these TRIPS provisions. Therefore, a national legislation on plant variety protection which shall only be compatible with the general wording of TRIPS Article 27.3(b) can be more adapted to national circumstances than what is provided for in UPOV 1978. An effective sui generis system can include provisions that allow for the exclusion from protection, as well as allowing for revocation and forfeiture based on public interests. At the same time, UPOV 1978 is less explicit than an ‘effective sui generis system’ with regard to enforcement. Moreover, while some provisions of the OAU Model Law are found not to be compatible with TRIPS, this does not imply that the Model Law as such must be disregarded as one basis upon which an ‘effective sui generis system’ can be built. The emphasis 103 GATT 1990c, p. 9. Canada referred to the proposal before the Panel (WT/DS114/R), Paragraph 4.15). 104 See footnote 6 of the TRIPS Agreement. 105 See footnote 13 of the TRIPS Agreement.
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has been to identify under which circumstances the principles recognized in the OAU Model Law are compatible with TRIPS, but they have also been analyzed with regard to how they are able to contribute to the realization of other rights, most notably the right to food. Nevertheless, several of the interests sought to be protected by the provisions of the OAU Model Law deserve due respect and acknowledgement, both in the TRIPS Council and in the UPOV and WIPO negotiations. Moreover, the sui generis systems, with regard to community rights or farmers’ rights, can be applied by any State.
Part IV: Comparison between Measures to Realize the Right to Food and Measures to Strengthen Patent and Plant Variety Protection
The analysis below will concentrate on the TRIPS Agreement and the International Covenant on Economic, Social and Cultural Rights. Can States comply with their obligations under both these treaties, or will compliance with the obligations under one treaty imply that the obligations under the other cannot simultaneously be fulfilled? The relationship between the provisions of the treaties of relevance for this book is rather complex. The basis for interpretation is a treaty’s terms in its context (textual approach). As seen in Chapter 3.1.3, the object or purpose of treaties is to be taken into account. There has, however, been a tendency to emphasize not only the terms, read in light of the object and purpose, but rather focus on treaties’ impact. There will not be any substantive economic analysis, as the book is on international law. Nevertheless, the impact of treaties on other treaties is relevant to consider in the wider context of assessing the relationship between treaties. Additionally, other treaties will be referred to, as these contain more detailed provisions on the regulation of genetic resources. Chapter 10 examines the jurisdiction and practice of the relevant bodies under the two treaties. In particular, it will consider to which extent the respective bodies mandated to oversee compliance with one treaty are taking into account obligations also arising under other treaties. Both treaties have comprehensive monitoring through different bodies, and concerns over implementation of TRIPS can also be brought before the WTO’s dispute settlement system. Under the Covenant, the Human Rights Council is not involved in monitoring of economic, social and cultural rights in specific States. The monitoring done by the Committee on Economic, Social and Cultural Rights will therefore be emphasized. The jurisdiction of the organ which is mandated to resolve issues under international law, the International Court of Justice, will also be examined Chapter 11 examines how conflicts between international treaties are understood. The general principles for determining which treaty prevails in a situation of conflict be
See Sub-Commission 2001d, explicitly focusing on the impact of intellectual property on human rights. Other treaties of relevance are the CBD and ITPGRFA, as well as other systems, such as legislation on traditional knowledge, which are not yet recognized in binding treaties, which have a relationship both to the TRIPS Agreement, as well as to the International Covenant on Economic, Social and Cultural Rights.
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tween treaties are examined. In order to identify whether the different nature of human rights treaties and international economic law treaties is relevant in order to determine their relationship, two approaches are analyzed: ‘obligations erga omnes’ (implying that all States have a legal interest), and ‘multilateral obligations’ (implying that treaties cannot be amended). Chapter 12 analyzes the treaties based on the levels of potential conflicts, more precisely conflict understood as incompatible obligations and as ‘measures taken under one treaty impedes the ability to take measures under another treaty’. Moreover, the concerns relating to the proper implementation of the Covenant’s provisons while implementing other treaties, including TRIPS, will be analyzed, as there is a concern that the implementation of TRIPS can affect the implementation of the Covenant.
10
Jurisdictional and Jurisprudential Issues under the International Covenant on Economic, Social and Cultural Rights and the TRIPS Agreement
After a clarification of important terms, Chapter 10.1 will offer an analysis of the Committee on Economic, Social and Cultural Rights, as well as other relevant UN human rights bodies. Chapter 10.2 will focus particularly on the activities of the WTO’s Dispute Settlement Panel and Appellate Body. It is important to analyze the role of human rights in the WTO, particularly in the interpretation of TRIPS provisions. The Doha Declaration on TRIPS and public health as well as reports from the WTO bodies responsible for overseeing the implementatition of the treaties will also be analyzed. Finally, in Chapter 10.3, some reflections will be made regarding the possibilities of the International Court of Justice resolving a conflict between the right to food and the rights derived from patent and plant variety protection. Three terms are relevant when analyzing whether other treaties’ obligations are considered by a supervisory body in their monitoring of State’s treaty implementation: – refer to: this is merely a reminder of other treaties, without ambitions of assessing the scope of the obligations imposed by the provisions of this treaty; – take into account: this involves a more active balancing of obligations imposed by other treaties when assessing the implementation of obligations imposed by the treaty under consideration, in accordance with Article 31.3 of the Vienna Convention on the Law of Treaties, listing what is to be ‘taken into account’; – apply: this term could have several meanings, but in this context of treaty interpretation, a definition given by Black’s Law Dictionary seems appropriate: “To put to
It should be noted that ‘refer to’ would come close to Section 1 of Part III of the Vienna Convention on the Law of Treaties (‘Observance of treaties’, Articles 26 and 27). In Chapter 3.1.2, a clear distinction was made between interpretation and application of rules of international law. A proper interpretation must ‘take into account’ also other relevant treaties, but an interpreter can only ‘apply as law’ treaties under its jurisdiction, such as the WTO covered agreements (see Trachtmann 2002, p. 88, note 28). On human rights in the WTO, see also Marceau 2002, p. 756 and p. 777. An understanding of the term ‘apply’ refers to how treaty provisions are implemented nationally, indicating the extent to which the treaty is applied, in accordance with Section 2 of Part III of the Vienna Convention on the Law of Treaties (‘Application of treaties’, Articles 28 through 30).
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use with a particular subject matter ”. Article 38 of the Statute of the International Court of Justice lists what the Court shall apply to serve its functions of deciding international disputes. Based on the definitions given above, any supervisory or adjudicating body should not be prevented from referring to and taking into account other treaties when clarifying the terms, rights and obligations of the treaties over which they have jurisdiction. These bodies are not allowed, however, to apply such treaties. As an example, when clarifying provisions of WTO agreement, it seems difficult to make use of the term ‘apply’ with regard to non-WTO agreements. Therefore, to apply other treaties is not within the mandate of human rights and WTO supervisory adjudicating bodies; WTO bodies are not mandated to apply human rights law, but should not be prevented from taking into account such treaties, as much as the human rights bodies should not be prevented from taking into account other relevant treaties. Therefore, the term ‘apply’ will be limited to Chapter 10.3, when analyzing the jurisdiction of the International Court of Justice (ICJ). Most of the analyses on the relationship between trade and human rights in general, and the WTO’s dispute settlement system and human rights, have been done by legal experts trained in trade law. Concerning human rights and the TRIPS Agreement, most of the literature has focused on the negotiations and effects of the Doha Declaration on
Among those WTO experts who advocate for the position that narrow jurisdiction does not necessarily imply limitations on the law which the Panel and Appellate Body can apply are Palmeter and Mavroidis 1999, pp. 412-413, Bartels 2001, p. 519, and Schoenbaum 1998, p. 653. See also Pauwelyn 2001, particularly pp. 573-577; Pauwlyn 2003c p. 263 (claiming that non-WTO treaty provisions could be “…part of the law to be directly applied…” (emphasis in original)), and pp. 465-472; and Pauwelyn 2005, pp. 212-218. The reports from the panels and Appellate Body that have been referred to by these authors, strictly use the term ‘apply’ in the context of rules that apply (see Korea – Government Procurement WT/DS163/R, paragraph 7.96 and US – Hot rolled steel (WT/DS184/AB/R, paragraph 60) and not treaties which these bodies are mandated to apply. However, see EC – Bananas (WT/DS27/AB/R) paragraph 169 (“…we must look first to the text of the [Lomé] Convention and identify provisions of it that are relevant…”) based on the understanding that the Lomé Convention was a waiver to the WTO, and therefore “…a WTO Agreement within the competence of a WTO panel.” Marceau 2002, p. 786, p. 795 and p. 804, explicitly states that when a WTO dispute is dealing with a subject matter addressed by human rights law, such law would have to be taken into account in the interpretation. A party to the dispute can refer to its obligations (defensive use of the other agreement) and hence be able to convince the adjudicating body to take into account these obligations when interpreting a treaty with the aim of solving a conflict (interpretative use of the other agreement). When the interpreter shifts from interpretation to application, the basis must be treaties over which one has competence. There is a vast literature published in international (economic) law journals; see Petersmann 2001a and 2002, (see Alston 2002 for criticism), Lim 2001, Cottier 2002, Abbott and Cottier 2003, as well as the comprehensive volume by Cottier, Pauwelyn and Bürgi (eds.) 2005. See Cattaneo 2000, Cameron and Gray 2001, Pauwelyn 2001, Pauwelyn 2003a, Pauwelyn 2003b, Pauwelyn 2003c, Pauwelyn 2003d, Marceau 2002 and Shanker 2002.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
TRIPS and Public Health, though this Declaration did not refer to human rights explicitly. There are some contributions, mostly from a human rights perspective, which have addressed the relationship between human rights protection and intellectual property rights, including the patenting of life forms. This chapter adresses specifically the jurisdiction and jurisprudence of the WTO bodies and human rights bodies, as well as the ICJ. 10.1
The Jurisdiction and Practice of Human Rights, Particularly the Committee on Economic, Social and Cultural Rights
This section will primarily analyze the Committee on Economic, Social and Cultural Rights. This is the organ which is given the formal mandate to monitor the implementation of the Covenant. The other human rights organs, such as the Human Rights Council, the Sub-Commission on the Promotion and Protection of Human Rights, and the Third Committee of the General Assembly do not monitor the implementation of the Covenant in specific States. With regard to the right to food, these bodies issue resolutions at their sessions. Regarding the rights recognized in Article 15 of the Covenant, the issuing of resolutions is less frequent, but resolutions of relevance for this book will be examined. These resolution, particularly from the Human Rights Council and the Third Committee of the General Assembly, are of a general and procedural nature.10 This analysis will therefore concentrate on the Committee, as it also operates independently and without political constraints. Moreover, as the United Nation’s High Commissioner for Human Rights is a secretariat for these other bodies, there will not be an explicit analysis of documents produced by the High Commissioner. 10.1.1
The Jusrisdiction of the Committee
The most relevant ECOSOC resolutions with regard to the Committee on Economic, Social and Cultural Rights are 1985/17 and 1987/5. The first resolution establishes the Committee, stating that the Committee shall assist ECOSOC by considering State re
WT/MIN(01)/DEC/W/2 of 14 November 2001. See Chapman 2002, Dommen 2002 and Plahe and Nyland 2003. The documents produced for the Committee on Economic, Social and Cultural Rights day of general discussion on Article 15.1(c), 27 November 2000 and subsequent discussions in the Committee and the Sub-Commission, are also useful. 10 The resolutions of the UN General Assembly, the Human Rights Commission and the SubCommission on the Promotion and Protection of Human Rights with regard to the right to food (A/RES/56/155, A/RES/57/226, A/RES/58/186, A/RES/59/202, E/CN.4/RES/2001/25, E/CN.4/RES/2002/25, E/CN.4/RES/2003/25, E/CN.4/RES/2004/19, E/CN.4/RES/2005/18, as well as E/CN.4/Sub.2/RES/2002/10) focus mostly on forms of cooperation and coordination. Conversely, the resolutions concerning right to health, or more specifically access to medication (E/CN.4/RES/2001/33, E/CN.4/RES/2002/32, E/CN.4/RES/2003/29, E/CN.4/ RES/2004/26 and E/CN.4/RES/2005/23) define much more explicitly the obligations upon States for making such medication accessible to the sick.
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ports, submitted in accordance with Articles 16 and 17 of the Covenant.11 There are neither any individual complaints mechanisms,12 nor any mechanisms that allow for any form of dispute settlement or State complaint if one State party allegedly is not in compliance with its obligations under the Covenant. Resolution 1987/5 entrusts the Committee with another responsibility: to issue general comments. The Committee has identified that the purpose of such general comments is “…to assist and promote their further implementation of the Covenant […] to suggest improvements in the reporting procedures and to stimulate the activities of the State parties, the international organizations and the specialized agencies concerned in achieving progressively and effectively the full realization of the rights recognized in the Covenant.”13 Furthermore, ECOSOC Resolution 1987/5 invites NGOs to submit written statements to the Committee “…that might contribute to the full and universal recognition and realization of the rights…”14 In addition, the Committee has decided – without an explicit mandate from ECOSOC – to set aside one day of each session as a day of general discussion in order to “…synthesize information […] based on reports from State parties [and]… facilitated by inputs from relevant specialized agencies.”15 The outcome of these days of general discussion could later be important sources in the drafting of general comments. The analysis will particularly attempt to identify whether the Committee seeks to involve the international organizations which have a mandate covering subject matter which could affect the realization of the rights recognized in the Covenant. Moreover, it will be analyzed whether the Committee seeks both to influence decisions at the WTO through awareness-building of human rights within the WTO, and itself take into account WTO obligations when clarifying the provisions of the Covenant and monitoring the implementation. The first issue will be answered below, while the second issue will be analyzed in Chapter 10.1.2. Before entering into an analysis regarding the first of these, the provisions of the Covenant itself regarding the role of international organizations in the implementation of the Covenant, will be examined, based on the analysis in Chapter 5.3.1. Part IV of the Covenant deals with the reporting procedures, including potential use of the information in State reporting, and involves specifically the specialized agencies in reporting and implementation relating to economic, social and cultural rights. Based on Part IV of the Covenant, and in accordance with subsequent ECOSOC resolutions, it is evident that the Committee, operating with an ECOSOC mandate, has a jurisdiction which ex-
11 ECOSOC Resolution 1985/17, paragraph f. 12 Relevant documents for the purpose of understanding the potential and possibility for an optional protocol establishing an individual complaints mechanisms are: E/CN.4/1997/105 of 18 December 1996 (note by the Secretary-General transmitting the report from the Committee on Economic, Social and Cultural Rights), E/CN.4/2002/57, E/CN.4/2003/53 (corrigendum 1 and 2), E/CN.4/2004/44 and E/CN.4/2005/52. 13 UN doc E/1989/22, p. 87 (Third Session of the Committee). 14 ECOSOC Resolution E/RES/1987/5, paragraph 6. 15 E/C.12/1988/SR.22 (Second Session of the Committee), paragraph 30.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
tends to encouraging and facilitating involvement of the specialized agencies, in order to assist in the realization of the rights recognized in the Covenant.16 Of particular relevance for understanding how the Committee shall interact with other parts of the United Nations system is General Comment No. 2 on ‘international technical assistance measures’.17 The general comment refers to several UN commissions, specialized agencies, financial institutions, funds and programmes. The WTO is not mentioned, nor WIPO as a specialized agency. With the exception of a Statement in 1998,18 the first time the Committee presented a position to the WTO, was in the Statement issued to the Third Ministerial Conference in 1999.19 This Statement did not receive much attention, unlike a report presented to the Sub-Commission half a year later.20 Recently there has been increased contact between the Committee and the WTO, particularly with regard to intellectual property rights.21 WTO is formally outside of the UN system. As Part IV of the Covenant refers explicitly to the UN specialized agencies and other organs, it appears that the jurisdiction of the Committee is different with regard to the WTO than to the specialized agencies. WTO is, however, now regularly invited to the sessions of the Committee. The Rules of Procedure of the Committee on Economic, Social and Cultural Rights states in paragraph 67 (extracts): “The Committee is entrusted with the task of considering the reports of the specialized agencies, submitted to the Council in accordance with article 18 of the Covenant…”22 Moreover, paragraph 68 states (extracts): “The specialized agencies concerned shall be invited to designate representatives to participate at the meetings of the Committee.” These representatives may make statements before the Committee on matters falling within the scope of their respective mandate, relating to the State reports, and representatives of States can respond to this information. WTO is now on the list of those 16 See Vandenhole 2004, pp. 51-53. 17 General Comment No. 2: ‘International technical assistance measures (Article 22 of the Covenant)’ (UN doc. E/1990/23. pp. 86-88 (Fourth Session of the Committee). The General Comment also addresses the policies of international organizations, and is not only limited to the ‘technical assistance measures’. 18 In the 1998 Statement on Globalization (www.unhchr.ch/html/menu2/6/cescrnote. htm#note18b), the Committee stated in paragraph 5 that international organizations “…have a strong and continuous responsibility to take whatever measures they can to assist governments to act in ways which are compatible with their human rights obligations and to seek to devise policies and programmes which promote respect for those rights. It is particularly important to emphasize that the realms of trade, finance and investment are in no way exempt from these general principles.” 19 Statement to the Third Ministerial Conference of the World Trade Organization E/ C.12/1999/9. 20 E/CN.4/Sub.2/2000/13 (Sub-Commission 2000b). 21 The Statement on Article 15.1(c) of the Covenant (E/C.12/2001/15) was the result of the day of general discussion, 27 November 2000, in which both WIPO and WTO secretariats participated. The Statement refers to TRIPS, but does not discuss TRIPS specifically. 22 UN doc. E/C.12/1990/4/Rev.1 (Third session of the Committee, 1989).
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‘specialized agencies, United Nations organs and financial institutions’ which are invited by the Secretary-General to send representatives to attend the meetings of the Committee.23 While the Rules of Procedure apply exclusively the term ‘specialized agencies’, the current practice is for the Committee to treat equally United Nations organs and the WTO regarding observer participation at the sessions of the Committee. This mandate of the Committee, being able to involve and make use of the competence of the specialized agencies, organs and financial institutions is unlike the other human rights supervisory bodies of the United Nations.24 The emphasis on the exchange of information on any matter falling within the scope of the respective organizations’ mandate underlines the ‘progressive realization’ approach. While the Committee is mandated to promote the cooperation and exchange of information with all relevant UN institutions, as outlined in Part IV of the Covenant, this mandate now also includes the WTO, and there is an increasing interest in the activities of the WTO.25 It is not possible to conclude, however, that there are extensive contacts between the Committee and the WTO.26 The involvement is limited to specific processes and events that are of relevance for the WTO. While invitations have been extended to the WTO secretariat to attend all Committee sessions, there have only been two occasions where the WTO secretariat has actively participated. Both were ‘days of general discussion’, and at these days, papers were presented by the WTO secretariat.27 WIPO and FAO are also invited to the sessions of the Committee. Their participation, however, has also been limited to certain days of relevance.28 23 Those receiving the invitation are: International Labour Organization (ILO), Food and Agriculture Organization of the United Nations (FAO), United Nations Educational, Scientific and Cultural Organization (UNESCO), World Health Organization (WHO), Office of the United Nations High Commissioner for Refugees (UNHCR), World Intellectual Property Organization (WIPO), United Nations Children’s Fund (UNICEF), United Nations Development Programme (UNDP), United Nations Conference on Trade and Development (UNCTAD), Joint United Nations Programme on HIV/AIDS (UNAIDS), International Monetary Fund (IMF), World Bank and World Trade Organization (WTO) (see E/C.12/2002/1: Provisional Agenda and Annotations to the 28th Session of the Committee on Economic, Social and Cultural Rights, paragraph 6 (b)). 24 The Convention on the Rights of the Child has a similar provision in Article 45, referring to UNICEF. 25 The WTO has been referred to in three Statements issued by the Committee. 26 With the exception of ILO and possibly UNESCO, the same conclusion can be drawn with regard to the other UN organizations, as well. 27 On 27 November 2000, the Committee held a day of general discussion on “The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”, at which the WTO Secretariat presented the paper, ‘Implementation of the International Covenant on Economic, Social and Cultural Rights’ (E/C.12/2000/18). On 7 May 2001, the Committee held a day of general discussion (presented as an ‘international consultation’) on “Economic, Social and Cultural Rights in the Development Activities of International Institutions”, in which Hoe Lim presented a paper, ‘Trade and human rights: what’s at issue’ (E/C.12/2001/WP.2). 28 WIPO has recently been involved in the drafting of General Comment No. 17.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
Whether the Committee seriously considers the obligations imposed by treaties negotiated under the auspices of WTO, WIPO or FAO in their examination of State parties’ reports will be analyzed in the section below. 10.1.2
The Practice of the Committee
Regarding the jurisprudence of the Committee, the outcome of its work is not of the same legal nature as is the work of a human rights court, or the dispute settlement system of the WTO. Neither the general comments nor the ‘concluding observations’ from the examination of State reports constitute jurisprudence in strict terms. Therefore, the term ‘practice’ is applied. This study will present two issues. First, there will be an analysis of the extent to which the Committee understands its mandate to identify human rights violations,29 and what is required for such violations to be identified. Second, we will analyze whether the Committee is referring to State obligations imposed by other international treaties when clarifying the scope of the recognized rights, as well as the corresponding obligations. The obligations imposed by the WTO Agreement, including TRIPS, is of particular relevance. Chapter 4.2.3 analyzed the nature of the obligations under the International Covenant on Economic, Social and Cultural Rights. It was acknowledged that the ‘progressive realization approach’ is still prevailing, and more appropriate in the context of this study, with its focus on measures undertaken for the realization of the rights. While the analysis in Chapter 4.2.3 focused on the wording of the Covenant, this section will analyze how the Committee has applied the ‘violations approach’, based on the Maastricht Guidelines for the Violations of Economic, Social and Cultural Rights.30 The ‘violations approach’ has recently become more visible in the documents issued by the Committee, particularly in the last general comments and – some would argue – in a somewhat imprecise manner.31 There will be an examination of whether the Committee has developed a systematic approach for determining when another treaty might conflict with the Covenant. The emphasis has been on impact, as illustrated by phrases such as ‘the right might not be ensured’ and ‘risks undermining the right’.32 This section, examining the Committee, is hence different from Chapter 4.2.3, where the principles of a violations approach were outlined. Moreover, this section will use the TRIPS Agreement as the concrete illustration (see below). It will be examined whether 29 This analysis is different from the analysis in Chapter 4.2.3 above, which analyzed the provisions of the Covenant as such, and the relevance of the ‘violations approach’ for the scope of this book. 30 Human Rights Quarterly 1998, Vol.20, pp. 691-705. 31 See Chapter 4.2.3. In General Comment No. 14 (UN doc E/C.12/2000/4, reprinted in Eide et al. (eds) 2001, Annex 2) paragraph 52 lists as a violation “…the failure to monitor the realization of the right to health at the national level, for example by identifying right to health indicators and benchmarks…” The failure to monitor the realization cannot be considered to be a substantial human rights violation. 32 See 1998 Statement on globalization, paragraph 3.
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the interpretative approach developed by the Committee in identifying violations or ‘material breaches’ of the recognized rights are based on a combination of impact of other treaties and the object and purpose of the Covenant, giving less emphasis to a strict application of the rules of interpretation of international law as outlined in Article 31 of the Vienna Convention on the Law of Treaties. Based on the approach of the general comments, particularly General Comment No. 12,33 it seems as if the Committee has adopted a sui generis approach to identifying conflicts. The basic approach, as explained in Chapter 3.1.2, is that an interpretation of the law must take into account all relevant interpretative material, including other treaties. Then the legal rule is applied to the facts. The material analyzed in order to identify the Committee’s approach of interpretation and application is both the ‘summary records of meetings’, as well as the ‘concluding observations’ from the examination of State reports. With regard to examinations of State parties’ reports, the Committee bases its examination on the progressive realization approach, and rarely applies the violations approach. Rather, the Committee has applied phrases such as ‘Article 11 had not been respected’,34 ‘infringed upon the right’35 and ‘not compatible with the respect of the right’.36 Moreover, the term ‘deep concern’ was applied when faced with particularly serious situations, including a malnutrition rate of 45 per cent of children below the age of five years.37 The Committee has found that the general situation has led to violation of the recognized rights.38 It must be noted that the progressive realization approach and the violations approach must not be understood to be mutually exclusive, as both seek to identify State obligations. The Committee has served 33 See particularly paragraph 19. See a similar approach in General Comment No. 14, paragraph 50. 34 UN doc. E/1991/23, paragraph 249 (Concluding observations Dominican Republic at the Fifth Session of the Committee on Economic, Social and Cultural Rights). 35 UN doc E/1992/23, paragraph 135(c) (Concluding observations Panama at the Sixth Session of the Committee on Economic, Social and Cultural Rights). 36 UN doc. E/C.12/1995/7, paragraph 16 (Concluding observations Philippines at the Twelfth Session of the Committee on Economic, Social and Cultural Rights). 37 UN doc. E/C.12/1/Add.95 of 12 December 2003 paragraph 22 (Concluding observations Democratic Republic of Korea at the Thirty-first Session of the Committee on Economic, Social and Cultural Rights). 38 An example of the reluctance of the Committee to apply the term ‘violation’ can be found in the concluding observations on Nigeria (E/C.12/1/Add.23 of 13 May 1998). The examination was undertaken while the notorious Abacha regime was still in power. The report is generally very critical. The Committee applies the term ‘violation’ once, by stating that “…the rule of law is absent in Nigeria, with the attendant extensive violations affecting all aspects and domains of economic, social and cultural rights in the State party” (paragraph 12). When identifying the implementation of the specific rights, the Committee applies phrases such as ‘is greatly disturbed’ (homeless women and girls) ‘expresses its deep concern’ (persistence of poverty) and ‘is appalled’ (homelessness generally). It should be noted that the Special Rapporteur on the Right to Food in his report to the Commission on Human Rights has included a separate section presenting countries which had been contacted concerning ‘allegations of violations of the right to food’ (E/CN.4/2003/54, Section III).
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
to uphold the basic understanding that the human rights recognized in the Covenant are of a nature in which progressive realization is crucial. There might be several explanations for the reluctance by the Committee to identify situations of violations or ‘material breach’ of the obligations of the Covenant. Three explanations seem to be of particular relevance, one related to the wording of the Covenant, one to the in-depth knowledge of the Committee regarding alleged cases of violations, and the third relating to the approach the Committee has chosen in examining State parties’ reports. First, the emphasis on the term ‘maximum of its available resources’, as applied in Article 2.1 of the Covenant has led to difficulties is defining when the insufficient enjoyment of the recognized rights is due to lack of resources (the State has the burden of proving that it is unable to meet the obligations),39 and when the insufficient enjoyment is due to acts of omission or commission by the State (the burden of proving is on the accusing actor).40 Second, the Committee might not possess enough information, and not have enough time to identify relevant legal provisions, actual implementation and consequences, in order to determine a violation. Third, the Committee strives to establish a good relationship with the State parties, implying a reluctance to criticize the States explicitly. Hence, the Committee is not emphasizing the violations approach in the examination of State reports, and has not concretized this beyond what is outlined in the Maastricht Guidelines. We will now turn to examining the extent to which the Committee considers the relationship between States’ obligations under the Covenant and obligations imposed by the WTO Agreement, including the TRIPS Agreement. Generally, it can be said that the WTO has been subject to more attention in the days of general discussion than during the examination of State reports. With regard to TRIPS, human rights obligations in the context of intellectual property rights, have been addressed by the Committee, but not many ‘concluding observations’ make explicit reference to TRIPS.41 Moreover, in the 39 The notion of the burden of proof is taken from Maastricht Guidelines, paragraph 13. 40 Craven 1995, p. 142, states: “The general approach of the Committee with its utilization of national benchmarks and its reluctance to establish actual violations, has been to view the fulfillment of the obligations as contingent upon the presence of resources.” In the same argument, he finds that the actual text of the General Comment No. 3 on State parties’ obligations, actually says in paragraph 10 that resource constraints cannot be used as an excuse for not satisfying the minimum core obligations, such as essential foodstuff, primary health care, basic shelter and housing or the most basic forms of education (p. 143). 41 Ecuador (E/C.12/1/Add.100, paragraphs 30 and 55) and Chile (E/C.12/1/Add.105, paragraph 60). The Committee asks Ecuador to “…conduct an assessment of the effect of international trade rules on the right to health for all and to make extensive use of the flexibility clauses permitted in […] TRIPS…” Chile is also asked to “…make use of the flexibility clauses…” For an index on the references to trade-related topics by the Committee since 2002, see: <www.3dthree.org/pdf_3D/CESCR_Index.pdf>. In 2001, during the examination of Germany’s fourth report (E/C.12/2001/SR.49), paragraphs 51 and 57 address the TRIPS Agreement and access to medicines in developing countries. Nothing, however, is said in the concluding observations on the report from Germany (E/C.12/1/Add.68). In the examination of the fourth report from Denmark, questions were asked about the TRIPS Agreement (E/C.12/2004/SR.36, paragraphs 49 and 50), with a response from the Danish delegation
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‘concluding observations’ issued by the Committee to the State parties, WTO has been infrequently referred to in the context of human rights obligations.42 The isolated example in which the Committee has sought to bring to the attention of a State party to the Covenant the potential implications of the TRIPS Agreement – more specifically access to medication – does not give a basis for concluding that the Committee has a high awareness regarding the relationship between the right to food and the TRIPS Agreement. The limited attention of the Committee in connection with the content and scope of Article 15.1(b) and (c) (see Chapter 6), is also reflected in the limited use of and reference to TRIPS when examining State parties’ reports. It must be observed that the Committee has not applied the phrase ‘treaty conflict’, but rather expresses concerns regarding developments which are considered to negatively affect the realization of economic, social and cultural rights. The Committee is primarily concerned with what impedes the implementation of the Covenant, and has not developed an approach on how to identify treaty conflicts. Moreover, finding that a violation occurs as a result of failure to take into account its human rights obligations when entering into agreements,43 is not the same as identifying a conflict between the Covenant and these agreements. The documents by the Committee do not assist in identifying criteria for determining when another treaty conflicts with the Covenant. The Committee tends to consider other treaties as a whole, and do not examine treaty provisions. This general approach could imply that the Committee is not considered to be a ‘proper’ treaty interpreter. Moreover, the first time the TRIPS Agreement was mentioned by the Committee, the Committee rather quoted the view by other UN bodies than making their own analysis: “The UNDP Human Development Report 1999 signals a strong warning against the negative consequences of the Agreement on Trade(E/C.12/2004/SR.37, paragraph 7). Nothing, however, was included in the concluding observations (E/C.12/1/Add.102). Concern with regard to plant variety protection was expressed with regard to the report by Australia, in E/C.12/2000/SR.47. Also the Committee on the Rights of the Child has included intellectual property rights in the concluding observations, in relation to the report by El Salvador (CRC/C/15/Add.232, paragraphs 47 and 48) by noting “…the potential negative impacts of international trade-related intellectual property agreements on access to affordable medicines”, and recommending to El Salvador to “…consider the best interest of the child…” when negotiating and implementing such agreements, including conducting an impact assessment. These recommendations were issued in the context of the negotiations of intellectual property within free trade agreements, the Andean and the Central American, respectively, both of which are done with the United States as a negotiating partner. 42 The reference to human rights obligations in the context of WTO in the ‘concluding observations’ is on a high level of generality, with standardized wording, and does not refer to specific legislative acts or decisions: Egypt (E/C.12/1/Add.44); Morocco (E/C.12/1/Add.55); Syria (E/C.12/1/Add.63); Nepal E/C.12/1/Add.66); Algeria (E/C.12/1/Add.71). As an example of an examination where WTO was referred to in the examination, but not in the concluding observations, see Finland fourth report, E/C.12/2000/SR.61, paragraph 66, when Finland was asked whether human rights obligations were borne in mind by its representatives in organizations such as the World Trade Organization. 43 This procedural obligation is listed in General Comment No. 12, paragraph 19.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
Related Aspects of Intellectual Property Rights (TRIPS), particularly on food security, indigenous knowledge, bio-safety and access to health care – major concerns of the Committee as reflected in articles 11 to 15 of the Covenant.”44 At the same time, concerns regarding resource constraints – which must be understood in a wide sense, including financial and human resources – cannot be categorically excluded in an assessment of how other treaties affect the full realization of the recognized human rights of the Covenant. Therefore, it must be concluded that the Committee exercises a more limited mandate than for which the Covenant provides. It will be argued that the Covenant gives three independent foundations for reference to WTO provisions, which have not been fully utilized. First, the Committee has not analyzed systematically the impact on the enjoyment of the recognized rights resulting from the implementation of the WTO Agreement. Second, the Committee does not consider the role of the WTO in the context of international cooperation for the realization of the recognized rights, in accordance with Articles, 2.1, 11.1, 11.2 and 15.4. Third, the Committee does not actively make use of the procedural provisions in Part IV of the Covenant, in order to facilitate exchange of information between the Committee and the WTO. At the same time, by being relatively cautious, the Committee has avoided to make draw strong conclusions on complex relationships, which might have given the Committee reduced legitimacy. The Committee, however, can elaborate on how States best can balance their obligations imposed by the Covenant with the obligations imposed by WTO and other international treaties. This mandate must be strictly limited to analyze whether the obligations under the Covenant are appropriately taken into account when adopting legislation in order to comply with the obligations under these other treaties.45 10.1.3
Other Human Rights Bodies
There are three relevant bodies within the United Nations which will now be examined in order to analyze their practice with regard to identifying the relationship between relevant provisions in the International Covenant on Economic, Social and Cultural Rights and relevant provisions in other treaties, particularly the TRIPS Agreement: The General Assembly, the Commission on Human Rights (from 2006 replaced by the Human Rights Council) and the Sub-Commission on the Promotion and Protection of Human Rights. The General Assembly’s Third Committee (Social, Humanitarian, and Cultural Committee) is mandated to address human rights issues, and it adopts annual resolutions on the right to food. Among the four reports submitted to the General Assembly by the Special Rapporteur on the right to adequate food, the 2003 report is of particular 44 Statement to the Third Ministerial Conference of the World Trade Organization, E/ C.12/1999/9, paragraph 4. 45 The Committee must in these endeavors seek to avoid a too general approach, as expressed in paragraph 19 of General Comment No.12, and rather focus of specific legislative acts or agreements.
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relevance, not because TRIPS is analyzed, but because it addresses patents under the main section ‘Transnational corporations and the right to food’.46 Nothing is mentioned in the subsequent resolution, but it must be noted that the Third Committee approved the report.47 Neither do other General Assembly resolutions address the relationship between the human right to adequate food and the other international treaties. Also, in the General Assembly’s Second Committee (Economic and Financial) relevant issues in the context of this study are addressed. A 2003 report to the General Assembly titled, ‘Impact of new biotechnologies, with particular attention to sustainable development, including food security, health and economic productivity’ by the SecretaryGeneral,48 addresses intellectual property rights.49 The subsequent resolution, however, did not take up the issue of patents in the context of food and health.50 Therefore, resolutions from the General Assembly have not addressed the relationship between treaty provisions recognizing the right to food or other social human rights, and provisions found in other treaties, such as international economic law treaties. The Commission on Human Rights has also received reports from the Special Rapporteur on the Right to Food. In the 2004 report, transnational corporations are addressed.51 Based on the content of the relevant paragraphs, it is reasonable to say that the 46 A/58/330 (UN 2003b), paragraphs 27 through 51. Paragraph 29 is of most relevance, noting “…the increasing concentration and monopoly control over the global market for agricultural seed, particularly the genetically modified seed market, which is dominated by the Monsanto corporation. Although it is generally agreed that genetically modified seeds can in some conditions bring higher yields, NGOs are concerned that increasing control over seeds by a few agro-alimentary corporations will eventually reduce competition, reduce choice and may lead to higher prices for seeds.” Moreover, “…technologies that prevent seeds from regenerating, and by the use of intellectual property rights over seeds, which require farmers to purchase new seeds every year, threatening their independence and capacity to generate their own seed stocks. Although it is clear that the patent rights of corporations must be protected, the rights of small farmers must also be protected.” (Footnote referring to the Schmeiser case (2004 SCC 34) omitted.) 47 A/RES/58/186, paragraph 10 reads: “Takes note with appreciation of the interim report of the Special Rapporteur of the Commission on Human Rights on the right to food, and commends the Special Rapporteur for his valuable work in the promotion of the right to food” (footnote referring to UN2003b omitted). 48 UN 2003a. The Report is listed as one of five references in WIPO’s Intellectual Property Handbook: Policy, Law and Use <www.wipo.org/about-ip/en/iprm/pdf/bibligraphy.pdf> under the section on TRIPS. 49 UN 2003a, paragraph 39 states, inter alia, “…patents might present a hurdle […] if owners deny a country access at a reasonable price.” Paragraph 40 says that countries nevertheless “…may have to protect and respect intellectual property rights for them to be trusted by owners of such technologies…” 50 A/RES/58/200. In paragraph 2, referring to the Secretary-General’s report, the General Assembly only takes note (not with appreciation as in the right to food resolution referred to above). The same paragraph addresses “…the promotion of biotechnology within the United Nations system.” 51 E/CN.4/2004/10, paragraphs 35 through 54, particularly paragraphs 37 through 39. It is initially held that the participation of the corporations “…may improve efficiency…”, but several
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
report rather seeks to highlight relevant concerns, than to actually identify the relationship between the provisions of the Covenant and provisions of international economic law treaties, determining the conditions for when these might conflict. The Commission, in the subsequent resolution, responds to the report by requesting “…private actors, as well as international bodies within their respective mandates, to take fully into account the need to promote the effective realization of the right to food for all…”52 The same paragraph is found in the subsequent resolution on the right to food adopted by the Commission.53 This paragraph must be clarified. First, the fact that a request is made to States, private actors and international bodies on an equal basis, must be noted. In strictly legal terms, the States have human rights obligations, while the two other categories of actors only have responsibilities under international human rights law. Moreover, a distinction must be made between international bodies, represented by States, and private actors. The obligation to cooperate, inter alia, through international bodies are important means for the realization of the rights (Article 2.1, 11.1 and 11.2 of the Covenant). With regard to the private actors, States are under an obligation to protect human rights by regulating the actitivies of third parties so that these do not adversely affect the enjoyment of human rights. Private actors, on their part, recognize their responsibility within their sphere of influence.54 Therefore, despite the broad category of addressees in the paragraph, this request is appropriate, based on the fact that hunger “…constitutes an outrage and a violation of human dignity and, therefore, requires the adoption of urgent measures at the national, regional and international levels for its elimination.”55 These resolutions by the Commission on Human Rights do not, however, say anything on possible conflicts between intellectual property rights as recognized by TRIPS and human rights as recognized in the Covenant. The Sub-Commission on the Promotion and Protection of Human Rights has specifically addressed intellectual property rights and human rights in two resolutions.56 The
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concerns regarding the priorities of these corporations are expressed. Then, in paragraph 54(b), all States which are parties to the Covenant are recommended to “…consider their obligations to respect, protect and fulfill the right to food within the context of international trade negotiations at the World Trade Organization” (emphasis added). Paragraph 7 of E/CN.4/RES/2004/19 reads: “Requests all States and private actors, as well as international organizations within their respective mandates, to take fully into account the need to promote the effective realization of the right to food for all, including in the ongoing negotiations in different fields.” In paragraph 8, the Commission “takes note with interest…” of the report, which must be understood as an endorsement (there was one vote against, and one abstention). E/CN.4/RES/2005/18, paragraph 8. The first and second principles of the UN Global Compact <www.unglobalcompact.org> (where nearly 3000 companies are part), read: “Businesses should support and respect the protection of international human rights within their sphere of influence”; and “Businesses should make sure that they are not complicit in human rights abuses.” E/CN.4/RES/2005/18, paragraph 1. E/CN.4/Sub.2/RES/2000/7 (Sub-Commission 2000a) and E/CN.4/Sub.2/RES/2001/21 (SubCommission 2001a), respectively.
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resolutions emphasize the need to protect the social functions of intellectual property,57 and confirm also that “…the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author […] is a human right, subject to limitations in the public interest.”58 The study will now analyze the extent to which the Sub-Commission takes into consideration States’ obligations under intellectual property treaties. Both resolutions, especially the latter, emphasize the need to take into account human rights obligations in international economic policy formulation, in particular when implementing TRIPS.59 Moreover, the latter resolution calls upon the human rights monitoring bodies to explore the implications of TRIPS for the realization of economic social and cultural rights,60 and requests the High Commissioner for Human Rights to examine “…whether the patent, as a legal instrument, is compatible with the promotion and protection of human rights.”61 There is, however, one paragraph in the two resolutions which, to some extent, confirms that implementation of intellectual property rights treaties might contribute to the realization of Article 15.1(c) of the Covenant. The two resolutions have a common paragraph 7 which reads (extracts): “…to cooperate internationally in order to realize the legal obligations under the Covenant, including in the context of international intellectual property regimes.” There is hence an acknowledgement of the need to promote international cooperation in the context of present intellectual property treaties for the purpose of human rights realization. Except for this common paragraph, the two resolutions emphasize in general terms that there are ‘apparent conflicts’62 or ‘actual or potential conflicts’63 between the realization of human rights and the implementation of TRIPS, reminding of the primacy of human rights over economic policies and agreements.64 As the resolutions are formulated with a rather general wording, it is difficult to apply them when clarifying the conditions for determining when obligations imposed by an intellectual property treaty might conflict with the obligations under a human rights treaty. Moreover, the two resolutions do not elaborate in detail on neither the provisions nor the object and purpose of intellectual property treaties, specifically TRIPS.65 Hence, it seems that the Sub-Commission has reached its conclusions on the relationship be57 58 59 60 61 62 63 64 65
Ibid, paragraph 5 and 4, respectively. Sub-Commission 2000a, paragraph 1. Sub-Commission 2001a, paragraphs 3, 5 and 6. Ibid, paragraph 8. Ibid, paragraph 10. This request is followed up only in the context of the High Commissioner’s Expert Group on Human Rights and Biotechnology in 2002, as explained in Sub-Commission 2002, paragraph 4. Sub-Commission 2000a, paragraph 2. Sub-Commission 2001a, preambular paragraph 11. Common paragraph 3 in the two resolutions. Two reports issued in accordance with Sub-Commission 2000a (see Sub-Commission 2001b, 2001c and 2001d) have neither elaborated in detail on the provisions, nor on object and purpose of intellectual property treaties, but the latter has emphasized the impact of TRIPS on human rights.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
tween human rights and intellectual property without actually examining in detail the intellectual property rights treaties, but merely by stressing human rights principles. At the same time, among the human rights fora, the Sub-Commission has adopted the most relevant resolutions. Neither the resolutions from the Sub-Commission, nor from the Commission on Human Rights nor the General Assembly, have sought to clarify specifically how to ensure balance between human rights obligations and intellectual property obligations.66 10.2
The Jurisdiction and Jurisprudence of the Dispute Settlement System, and the Practice of the WTO’s Political Bodies
This section will analyze the jurisdiction and jurisprudence of the adjudicating bodies, as well as the supervisory and decision-making bodies of the WTO. Initially, Chapter 10.2.1 will analyze to which extent the Dispute Settlement Understanding (DSU) allows other treaties to be taken into account by the Panel and the Appellate Body when clarifying provisions of the WTO agreements in the context of a dispute regarding the implementation of any of these agreements. Then, Chapter 10.2.2 will analyze to which extent these other treaties actually have been taken into account. Selected reports from both the panel and the Appellate Body will then be analyzed in Chapter 10.2.3 in order to identify important principles of interpretation applied by the WTO adjudicating bodies which are presumed to be of interest for assessing as to whether human rights obligations in particular will be taken into account. Chapter 10.2.4 will analyze the results from the Doha Ministerial Conference, in particular the Declaration on TRIPS and Public Health.67 Chapter 10.2.5 will assess whether the relevant monitoring mechanisms, the TRIPS Council and the Trade Policy Review Body,68 as well as the Committee on Agriculture, have contributed to an understanding of the obligations imposed by the TRIPS Agreement. The review taken by the TRIPS Council and Trade Policy Review Body aims to ensure a higher degree of compliance (‘improved adherence’69) with the provisions of the TRIPS Agreement, and all States are subject to such review.
66 A principle is established by the IPR Commission 2002, p. 6: “We therefore consider that an IP right is best viewed as one of the means by which nations and societies can help to promote the fulfilment of human economic and social rights. In particular, there are no circumstances in which the most fundamental human rights should be subordinated to the requirements of IP protection.” 67 WT/MIN(02)/DEC/W/1, 14 November 2001. 68 The Committee on Trade and Environment also has addressed issues arising from the implementation of the TRIPS Agreement (such as WT/CTE/W/8, of 8 June 1995), but this book concentrates on the TRIPS Council and the Trade Policy Review Body. 69 Trade Policy Review Mechanism Article A(i).
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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
A brief presentation of the WTO’s dispute settlement system was given in Chapter 8.1.2. This section will analyze two important provisions of the Dispute Settlement Understanding which explain the mandate of panels and the Appellate Body. The dispute settlement system has a specific jurisdiction to identify non-compliance, with strong mechanisms for ensuring compliance with the recommendations made.70 Under this system, when one or more States have raised a complaint in accordance with the Dispute Settlement Understanding (DSU), other States than the responding State are allowed to participate and express their views.71 The purpose of the dispute settlement system is stated in Article 3.2 of the DSU: …to clarify the existing provisions of [the WTO agreements] in accordance with customary rules of interpretation of international public law.72
Both Article 3.2, as well as Articles 1.1, 4.2, 7.2, 11 and 19.2 refer specifically to the ‘covered agreements’. The dispute settlement system is mandated to clarify the provisions of the WTO agreements and its annexes only. Moreover, the Appellate Body has confirmed that it adheres to the standard interpretation of international law: “The application of these rules in Article 31 of the Vienna Convention will usually allow a treaty interpreter to establish the meaning of a term.”73 Therefore, the phrase ‘customary rules of interpretation of public international law’ implies that in order to clarify a provision of the relevant WTO agreeement, the panels and Appellate Body must take into account ‘relevant rules of international law’, which could include other treaties in accordance with Article 31.3(c) of the Vienna Convention on the Law of Treaties.74 Unlike the International Court of Justice, which according to Article 38.1 of its Statutes shall decide disputes by applying conventions, custom, general 70 Ibid, Articles 21 and 22. 71 Ibid, Article 10. 72 Article 3.2 DSU implicitly recognizes the Vienna Convention on the Law of Treaties by identifying ‘customary rules of interpretation of public international law’ as the basis for the dispute settlement process. In its first report (WT/DS1/AB/R, US – Gasoline, pp. 16-17), the Appellate Body confirmed the relevance of Article 31.1 of the Vienna Convention of the Law of Treaties. There has been no report which has referred to Article 31.2, and only one report (WT/DS58/AB/R, US – Shrimps, paragraph 157) has referred to Article 31.3(c) stating that ’relevant rules of international law applicable in the relations between the parties’ shall be taken into account in treaty interpretation. Moreover, Article 32 has been taken note of as regards preparatory work (ibid, paragraph 152). See Marceau 2001a, pp. 1086-1090. 73 WT/DS62/AB/R, 26 June 1998 (EC-Computer Equipment), paragraph 86. 74 Note, however, that the ILC, in their 2004 report to the UN (UN 2004a, p. 300, paragraph 347) says that “…there would be no room to turn to other rules of international law unless the treaty itself gave rise to a problem in its interpretation”
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
principles of law, as well as teachings of the most highly qualified publicists, the panel and Appellate Body can only interpret and apply the WTO agreements (‘covered agreements’). Other treaties can be taken into account, in order to contribute to the interpretation of the specific WTO provisions. This is in accordance with the introductory part of Article 31.3 of the Vienna Convention. It was seen in Chapter 8.1.2 above that Article 19.2 of the DSU says that the panel and Appellate Body ‘cannot add to or diminish the rights and obligations provided in the covered agreements’.75 This is also in conformity with the principle that a judicial body shall not make new law, but clarify and apply the existing law. The power to interpret existing law and make new law is reserved for the legislative body, namely the Ministerial Meeting (and General Council), which will be subject to an analysis in Chapter 10.2.4 below.76 The emphasis on ‘rights and obligations provided in the covered agreements’ confirms the textual interpretation of the WTO agreements.77 In principle, however, the dispute settlement system is free to take into account any principle of international law which is found relevant in order to clarify the terms of a WTO agreement.78 Therefore, the specific provisions do not imply that the dispute settlement system can clarify the provisions in the covered agreement in isolation from other legal material under international law. More specifically, when other legal material is found to contribute to clarify the relevant WTO provisions, such legal material can be resorted to in the interpretation. This will now be examined further. 10.2.2 Which Rules of International Law Can Be Taken into Account in the Dispute Settlement System – and How? The limited jurisdiction of the WTO dispute settlement system must be acknowledged. This section will analyze the extent to which a panel and the Appellate Body actually take into account non-WTO treaties when clarifying provisions under the covered 75 Article 3.2 of the DSU applies similar wording, but addresses the Dispute Settlement Body, not the panels and Appellate Body. 76 The WTO Agreement Article IX:2 reads: “The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements.” The WTO Agreement Article X:1 reads (extracts): “Any Member of the WTO may initiate a proposal to amend the provisions of this Agreement or the Multilateral Trade Agreements in Annex 1 by submitting such proposal to the Ministerial Conference.” As stated in Article X:3, these amendments require explicit consent from two thirds of all WTO members if consensus cannot be achieved. 77 Ehlermann 2002, pp. 615-616. It must be recalled that while an interpretation is based on giving meaning to the terms of the treaty, also the context of the treaty, as well as the treaty’s object and purpose should form part of the interpretation. 78 For a position criticizing the use by the Appellate Body of ‘extratextual political agreement’, see Know 2004, p. 62, criticizing the “…ad hoc assortment of interpretative tools, including in dubio mitius, the principle of effectiveness and ‘evolutionary’ terms…” Know argues that the Appellate Body should place more emphasis on Article 31.3(c) of the Vienna Convention on the Law of Treaties.
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agreements. Particularly, the question of relevance and weight of non-WTO rules, more specifically human rights obligations, will be analyzed, starting with relevance. Three categories of relevant rules will be examined: customary law, treaties and documents to clarify treaty provisions, such as general comments. Customary law: This study does not intend to clarify whether all recognized human rights represent customary law (see Chapter 5.2.3). It is not clear which rules of international law are recognized as constituting customary law. It has been seen that the right to food was given particular emphasis when the Covenant was drafted (See Chapter 5.1.3 and 5.1.4), and the right to food is confirmed also in subsequent inter-governmental summits and processes.79 At least elements of the right to food, such as the prohibition of deliberately starving people by removing their food, represents customary law.80 This study only confirms that customary law is a relevant source of international law which could provide interpretative material for the clarifications undertaken in the WTO’s dispute settlement system. Treaties: There is a difference between treaties which are explicitly recognized in any of the WTO agreements and treaties which are not. Examples of the former are several of the treaties administered by WIPO. These treaties are incorporated in the TRIPS Agreement, in accordance with Article 2 of TRIPS,81 and can hence be applied. Regarding other treaties, the term ‘relevant rules’ of Article 31.3(c) is of particular importance.82 What constitutes a ‘relevant rule’ is for the adjudicating bodies of the WTO to decide.83 There are certain limitations on which treaties and treaty interpretations can be taken into account. The analysis will clarify this. By looking at the jurisprudence, it appears that the panels and the Appellate Body have taken into account other treaties when interpreting relevant WTO provisions, particularly when provisions from other treaties can contribute to clarify WTO provisions.84 Therefore, it must be asked whether the relevance of a treaty in the dispute settlement 79 See FAO 1996b and 2004b. 80 Skogly 2002, p. 22. 81 For an analysis on the relationship between the Paris Convention and TRIPS, see Pires de Carvalho 2005, particularly pp. 71-83. 82 Article 31.3(c) states: “There shall be taken into account […] any relevant rules of international law applicable in the relations between the parties.” 83 Marceau 2002, p. 782, finds that one criterion for the application of such a ‘rule’ outside of the WTO, is that the non-WTO provision “…may be evidence of specific international relevance.” 84 See US – Shrimps (WT/DS58/AR/R), which took into account non-WTO treaties in paragraphs 130, 135 and 169 in order to clarify, inter alia, the term ‘natural resources’. See also US – Shrimp, Recourse to Article 21.5 by Malaysia, Panel report, WT/DS58/RW, when the Panel said in paragraph 5.57: “…the Appellate Body, like the Original Panel referred to a number of international agreements, many of which have been ratified or otherwise accepted by the parties to the dispute (emphasis added; a footnote refers to AB report WT/DS58/AB/R, paragraph 168).
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
system is primarily determined by whether it contains provisions or terms which can be referred to in order to clarify terms used in the WTO agreements. There are two categories of WTO provisions which must be analyzed: the substantive provisions, outlining the obligations; and the exception provisions, including the exclusion provisions of Article 27 of TRIPS. This study will now analyze each of these categories of provisions in order to identify whether provisions from other treaties can be taken into account in order to clarify these provisions. With the exception of those WTO disputes where another treaty is directly involved in the dispute,85 the clarification of substantive provisions of the multilateral trade agreements has untill now not been done by taking into account another treaty’s provisions, except from when other treaties are understood as waivers to the WTO agreement.86 On the other hand, when provisions on exception and limitation provisions are being clarified, this can include taking into account provisions of other treaties. At the same time, this clarification by taking into account other treaty provisions is done subject to relatively strict procedures, based on the common intention of the WTO parties.87 If the responding party in a dispute refers to any obligations imposed by other treaties in their defense, a panel or the Appellate Body is confronted with a complex issue, as the dispute might concern international obligations which are beyond their competence to apply (interpret). Nevertheless, the WTO’s adjudicating bodies can clarify specific provision in the ‘covered agreements’ in light of provisions of other treaties. Of particular interest for the purpose of this study is whether measures relating to food production and distribution which are prescribed in Article 11.2(a), seen in light of the other provisions of the Covenant, particularly Article 2.1, can be taken into account by the WTO adjudicating bodies. Article 2.1 is a general obligations provision, stating that a State party to the Covenant shall ‘progressively achieve the full realization of the recognized rights, by all appropriate means and to the maximum of its available resources’. These provisions give relatively clear directions that measures shall be taken, but does not instruct the State regarding precisely which measures to be taken. The study will now examine how such provisions of non-WTO treaties can be taken into account when clarifying TRIPS provisions. First, Article 8.1 allow ‘measures necessary to protect nutrition’. The measures prescribed in Article 11.2(a) of the Covenant must be considered as such measures. These human rights measures must be based on
85 See EC – Tariff preferences (WT/DS246/R), where the issue was whether EC’s Drug Agreement with certain States was discriminatory in relation to those States that were not parties to this agreement. 86 See EC – Bananas (WT/DS27/AB/R) paragraph 169. 87 EC – Computer Equipment WT/DS62/AB/R, paragraph 84: “The purpose of treaty interpretation under Article 31 of the Vienna Convention is to ascertain the common intentions of the parties” (emphasis in original).
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laws or regulations,88 as well as the necessity of securing compliance with laws and regulations which are themselves not inconsistent with the TRIPS Agreement as a whole.89 At the same time, Article 8.1 cannot alone be an adequate basis for justifying a traderestricting measure. Article 8.1 shall, however, be included in the clarification of any of the substantive provisions of Part of TRIPS.90 Hence, measures relating to food as recognized in the Covenant can be included in the clarification of exception provisions. Therefore, human rights provisions might be relevant for clarifying the scope of certain TRIPS provisions, including those setting out principles and exceptions, as human rights constitute ‘relevant rules of international law applicable in the relations between the parties’, in the wording of Article 31.3(c) of the Vienna Convention on the Law of Treaties. At the same time, it is not clear which treaty-based rules of international law that are applicable for the purpose of solving a dispute within the WTO.91 As concerns the question of weight in general, human rights have a certain weight. This is both because they protect important values,92 and because they are ratified by a high number of States.93 Moreover, promotion of human rights are generally held to be one on the purposes of the UN, as human rights are recognized in Article 1 of the UN Charter, together with peace, justice, and self-determination. Finally, the argument that elements of human rights constitute customary law, must be observed, but this study does not aim to test this observation. As regards the issue of weight in the WTO, the panel and Appellate Body can determine whether it is necessary to take other treaties into account. The WTO’s dispute settlement system has not explicitly stated which weight that shall be given to specific human rights provisions.94 Neither have specific human rights obligations been brought before a panel’s attention by the responding party to a dispute. In one panel report, concerns relating to labor rights and health have been expressed by the responding State party to a dispute, without any explicit reference to the human rights obligations or spe88 TRIPS Article 8.1 states (extracts): “…in formulating and amending their laws and regulations…” 89 Two conditions were established in Korea – Beef (WT/DS161/AB/R, paragraph 157) and have subsequently been confirmed (see EC - Tariff preferences, WT/DS246/R, paragraph 7.195): “First, the measure must be designed to ‘secure compliance’ with laws and regulations which are not themselves inconsistent with some provisions of GATT 1994. Second, the measure must be ‘necessary’ to secure such compliance.” 90 Articles 27, 30, 31 and 32 set out the exceptions, and human rights concerns are within the scope of ‘protect human or plant life or health’ of Article 27.2. 91 For an overview of different criteria for determining which rules of international law that are applicable, see UN 2005, pp. 14-15, paragraph 32. 92 See Kirchner 2004, p. 59; see also Wolfrum and Matz 2003, pp. 131-133. For a more elaborate analysis; see Chapter 11.3.3 (multilateral obligations). 93 The Covenant is ratified by 156 States, and this number is increasing 94 The references by the WTO adjudicating system have rather been to provisions which must be understood to encompass human rights concerns, see Canada – Pharmaceuticals (WT/ DS114/R), paragraph 7.92: “…important national policies referred to in Article 7 and 8.1…”; see also paragraph 7.26.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
cific measures taken for the purpose of fulfilling these obligations.95 The Panel found that while these concerns were legitimate, all the requirements of Article XX of GATT 1994 were not met, and the concerns were hence not found to be justified.96 In the context of analysis of weight, the study will now examine whether the cautious approach of the WTO’s dispute settlement system to take into account human rights concerns, as compared to environmental concerns, might be explained by the wording of the WTO Agreement and its annexes. The term ‘environment’ is included in several WTO provisions,97 while the term ‘human rights’ does not appear at all. While there might be several reasons for this lack of explicit reference to human rights, it must be acknowledged that there are tensions between the States regarding human rights within the WTO. Developing countries are eager to introduce human rights in the context of TRIPS, contrary to discussions over trade in goods, wheras industrialized countries are eagerly defending the introduction of human rights provisions and principles in agreements relating to trade in goods. Does this imply that the WTO’s dispute settlement system finds it more difficult to include human rights treaties, even if these treaties might have certain weight? It must be noted, however, that the preamble to the WTO Agreement actually states that the relation between the State parties “…should be conducted with a view to raising standards of living.” This meaning of this phrase is very close to Article 11 of the Covenant. Hence, by this phrase, human rights principles are implicitly recognized. Moreover, the Appellate Body has pointed to the objective of sustainable development as recognized in the preamble to the WTO Agreement, in a dispute which explicitly addressed the protection of natural resources.98 Sustainable development consists of three components: ecological, economical and social. The Appellate Body did not point to the more ‘exclusive’ environmental element of the preamble (‘protect and preserve the environment’). The Appellate Body hence implicitly emphasized social concerns. Also several of the more specific provisions must be understood to refer to human rights implicitly. Article 8 of TRIPS, which is found in Part I of the TRIPS Agreement, includes measures to protect public health and nutrition. As Article 8 of TRIPS is not an operative article in the same manner as Article XX of GATT 1994,99 it cannot be read independently, but in light of one or more of the operative articles of Part II of TRIPS. 95 In the EC – Tariff preferences (WT/DS246/R), both health concerns (paragraph 7.180, but see paragraphs 7.208-210, in which the panel found that the arrangement was “…not a measure for the purpose of protecting human life or health under Article XX(b) of GATT 1994”) as well as labor rights (paragraph 7.202) were referred to by the EC regarding its Drug Arrangement. 96 The finding that neither of the two were justified under Article XX, and hence not accepted as a legitimate exception by the Panel (see paragraph 8.1(e) of WT/05246/R), was not challenged by the Appellate Body. 97 See Article 27.2 of TRIPS and the WTO preamble. 98 US – Shrimps (WT/DS58/AB/R) paragraph 131. 99 Article XX of GATT 1994, which is an operative article, includes as legitimate exceptions measures relating to public morals, human health and prison labor in paragraphs a), b) and e), respectively. The requirement is that the conditions of the chapeau of Article XX are met.
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To conclude on the issue of weight, in any dispute under TRIPS, a measure can be justified if found to constitute a legitimate exception by falling under one or more of the provisions of Part II of the TRIPS Agreement, seen in light of the provisions of Part I, most notably Article 8.1. The TRIPS provisions can be clarified by taking into account provisions of relevant human rights treaties. At the same time, assessment of obligations imposed by other treaties is coming very close to actual application of these treaties. Thus, the dispute settlement system will be cautious when faced with a claim that explicitly refers to human rights obligations in order to justify particular measures. Hence, in the WTO, concerns relating to human rights are recognized as having certain weight. At the same time, all of the requirements of a WTO exceptions provision must be met if this exception shall be found to be justified. Interpretations of treaties: A related question is whether the WTO’s adjudicating bodies can take into account interpretations of relevant treaties. This will be analyzed by examining the provisions of Article 31.3(c) of the Vienna Convention on the Law of Treaties, as Article 31.3(a) and (b) strictly relate to the subsequent interpretation and application of the treaty under consideration, not of other treaties. Article 31.3(c) contains the term ‘relevant rules’. The analysis below will examine whether general comments, as well as consensus declarations or the 2004 Voluntary Guidelines, can constitute such ‘relevant rules’, and hence provide relevant interpretative material,100 even if they have less weight than treaties and customary law. First, there must be an analysis of what is required to be classified as ‘relevant rules’. Based on the conditions established by Article 31.3(a), the overwhelming majority of State parties to the WTO Agreement must agree to the content of the general comment. At the same time, the requirements of Article 31.2 are stricter than the requirements of Article 31.3 as regard the consent by ‘all parties’.101 In Chapter 3.2.2 above, the ‘lack of formal endorsement’ by States of the general comments was referred. If there is disagreement regarding the content of a general comment in clarifying a specific human rights provision, this general comment cannot be said to adequately express any agreed interpretation. On the other hand, a general comment can reflect a commonly shared understanding of the rights and obligations of a human rights treaty. A general comment might reflect an agreed understanding, inter alia, by emphasizing customary law elements.102 Hence, the ‘soft law’ character of a general comment does
100 Other sources providing interpretative material are the Rome Declaration on World Food Security (FAO 1996b) and the ‘Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security’ (FAO 2004b). While these documents are non-binding, they have confirmed the right to food, but without strictly interpreting Article 11 of the Covenant. 101 While Article 31.3(a) and (b) uses the term ‘the parties’, Article 31.2(a) uses the term ‘all the parties’. 102 See Skogly 2002, p. 22 (starving people by depriving them of food). See also UN 2005, p. 15, paragraph 32(c).
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not imply that it can never contain relevant rules of relevance for clarifying the specific WTO provision in a dispute.103 Could a general comment contain relevant rules of international law in accordance with Article 31.3(c) of the Vienna Convention on the Law of Treaties also if the content of the specific provision does not constitute customary law, but anyway is generally accepted?104 This is a more difficult situation to answer generally. While it must be acknowledged that General Comment No. 12 is regularly referred to in resolutions adopted by the General Assembly and the Commission on Human Rights,105 this does not imply that its content represents general rules of international law. Moreover, this does not answer under which conditions relevant rules established by other treaties can be taken into account as interpretative material by the WTO’s dispute settlement system. Said differently, must the general comment be disregarded as providing interpretative material if there is only one persistent objector to the content of a general comment? This might be the situation for the USA, which has expressed objections against general comments. In this context, it must be reminded that USA is not a party to the Covenant. In order to analyze whether the organs of the WTO are allowed to take into account an interpretation to which at least one State objects, relevant provisions of the Dispute Settlement Understanding (DSU) will be examined. Article 10.1 of the DSU states that the interests of all parties shall be fully taken into account, not only the interests of the parties to the specific dispute. According to Article 10.2 of the DSU, this is done through hearings and written submissions, and USA has taken part in all disputes, also those to which it is not a party. At the same time, the Appellate Body adopts its reports based on its own assessment of the law and fact “…in light of the information provided and the statements made.”106 Therefore, a State which objects to an interpretation of non-WTO treaty provisions cannot prevent that this interpretation can be taken into account by the WTO’s dispute settlement system. Any interpretation of a non-WTO treaty provision to which not all parties agree, however, should be treated with utmost caution.107 On the other hand, it is beyond the jurisdiction of the dispute settlement system to confirm or disregard interpretations adopted under other treaties. Moreover, gen103 Article 31.3(b) of the Vienna Convention is of less relevance in this context of analyzing general comments. Article 31.3(b) requires that there is a ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. In the field of human rights, which gives a rather wide margin of discretion for implementing the treaties, it must be considered difficult to identify a specific ‘practice’, which is then constituting an agreement as reflected in a general comment. 104 In this context, see UN 2005, p. 15, paragraph 32(d). 105 As an example, see A/RES/59/202, operative paragraph 17. The resolution was adopted with 167 votes against 2, with no abstentions. 106 DSU, Article 17.10. 107 See Jennings and Watts 1992, p. 1268: “An interpretation, agreed between some only of the parties to a multilateral treaty may, however, not be conclusive, since the interests and intentions of the other parties may have to be taken into consideration.”
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eral comments constitute assistance for effective implementation, not strict interpretations.108 It cannot be categorically excluded that the WTO adjudicating bodies can take into account a human rights provision, seen in light of subsequent interpretations as outlined also in FAO Summit declarations or the 2004 Voluntary Guidelines, in order to clarify the scope of a legitimate exception contained in a WTO agreement. Such non-WTO provisions can contribute to clarifying certain terms, and hence the scope of a WTO provision. As the WTO’s dispute settlement system shall only take into account relevant rules of international law, it seems unlikely that the adjudicating bodies will seek to involve in any clarification of obligations under non-WTO provisions. Moreover, such clarification is beyond their given mandate. Summary: While the Dispute Settlement Understanding establishes a limited jurisdiction for the dispute settlement system, this does not imply that panels and the Appellate Body are excluded from taking into account other rules of international law. As the WTO Agreement and its annexes are part of public international law, the solving of a dispute regarding the compliance with the WTO ‘covered agreements’ can also be done by including other interpretative material under international law. The most relevant factor for determining whether other treaties are taken into account is whether the treaty contains rules which can be used in order to interpret WTO provisions. This confirms that when a non-WTO treaty or rule of international law shall be taken into account in the dispute settlement system, this is for the purpose of interpreting the relevant WTO rule. At the same time, the WTO adjudicating bodies can take into account relevant human rights treaty provisions, as interpreted in general comments, or as confirmed in inter-governmental declarations or guidelines, as long as this does not ‘add to or diminish the rights or obligations of the ‘covered agreements’. Hence, while human rights treaties have certain weight, human rights interpretative material cannot be taken into account in order to contribute to a clarification which is contrary to the wording of any of the WTO agreements. 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
This section will examine, based on the adopted reports, to which degree the dispute settlement system of the WTO has sought to include human rights concerns and principles when clarifying the covered agreement (WTO Agreement and its annexes). Human rights provisions, including the right to food, have not been taken into account by the dispute settlement system.109 Moreover, there have been no cases brought before the dis108 See ‘The purpose of general comments’, UN doc. E/1989/22, p. 87, reprinted in Eide et al. (eds.) 2001. 109 Obligations relating to health and labor rights were assessed in EC – Tariff preferences (WT/ DS246/R, paragraphs 7.180 through 7.210). The Panel analyzed the scope of the health and labor concerns included in the EC Drug Agreement with certain developing countries. First,
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
pute settlement system based on discriminatory practices and insufficient intellectual property protection relating to plants or plant varieties. The analysis of the jurisprudence developed is based on disputes which have contributed to clarifying the exception provisions of WTO agreements. As there are no examples of explicit taking into account treaty provisions from human rights treaties,110 it is examined whether certain human rights principles are implicitly taken into account. It will also be examined whether the WTO adjudicating bodies have referred to social concerns and measures to meet these concerns in the adjudicating bodies’ application of WTO law for ensuring compliance with WTO obligations. Three issues will be analyzed. The two first identify when a trade-restricting measure is anyway found to be justified. First, the jursipridence under GATT is examined. Second, the general principles in the WTO for identifying justified measures will be applied to the TRIPS Agreement, more specifically Articles 27.1, 27.2, 27.3 and 30,111 seen in light of Article 8. The third issue is somewhat different, by examining how different types of evidence is given weight in the dispute settlement system, ranging from strict natural science evidence to the concept of ‘morality’. These issues relate to social concerns in general, but also to human rights. Therefore, an analysis of how the dispute settlement system addresses these concerns is relevant in the context of this book. Not all reports arising from disputes over TRIPS implementation will be equally important, and also other reports than those related to TRIPS are analyzed. There is a certain overlap between TRIPS, GATS and GATT.112 All aspects of the reports will not be analyzed; rather the analysis will be limited to whether these rulings establish general principles relevant for identifying the extent to which the right to food will be taken into account by the dispute settlement system of the WTO. In Chapters 3.3.2 and 8.1 above, both the WTO Agreement and the Multilateral Agreements on Trade in Goods (Annex 1A, which consists of GATT 1994, as well as 12 other agreements) were found to consitute the context for the interpretation of the TRIPS Agreement, in accordance with Article 31.2(a) of the Vienna Convention on the the Panel did not find that any of these provisions were justifiable exceptions within the meaning of Article XX GATT 1994. Second, the Drug Agreement is not a human rights treaty. 110 According to one experienced WTO lawyer: “…the WTO jurisprudence has not yet clarified the impact of human rights (e.g. to human health and food) on the interpretation of, for example, intellectual property rights guaranteed in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights…” (Petersmann 2002, p. 634). The same author observes that “GATT and WTO jurisprudence has so far hardly ever challenged the sovereign right of GATT and WTO Member states to protect the human rights of their citizens through internal and international social rules […] if procedural due process requirements have been met.” (ibid, p. 637). 111 Article 31 on compulsory licenses will not be analyzed in detail. While this Article recognizes, inter alia, public, non-commercial use as one basis on which to use the subject matter of a patent without the patent holder’s consent, the requirement that the patent holder shall be paid adequate remuneration [Article 31(h)], and seek judicial review of any such decisions [Article 31(j)], restricts the ‘attractiveness’ of compulsory licenses, in accordance with Article 31. 112 On this relationship, see Davey and Zdouc 2003, particularly pp. 66-75.
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Law of Treaties. The jurisprudence of GATT 1994 will be analyzed in order to identify when a measure taken for serving societal interests might be found justified, even if it represents a trade-restricting measure within the context of the WTO. Requirements for determining that a trade-restricting measure is justified under GATT: As was found in Chapter 10.2.2 above, human rights might be taken into account in order to clarify the scope of a legitimate exception. The analysis below seeks to identify the requirements for determining when a measure taken for the purpose of ensuring social concerns is considered as a legitimate exception. As there is most jurisprudence under GATT 1994, dispute settlement reports under this agreement will first be analyzed, before analyzing TRIPS jurisprudence. The clarification by a panel on matters relating to the subject matter of human rights will be the starting point for this analysis. A panel stated: “…the importance of the protection of human life or health pursued under Article XX (b) is in no way reduced by the characterization of Article XX as an exception.”113 Three steps must be fulfilled in order for an alleged inconsistent measure to be found justifiable under Article XX of GATT 1994. First, the measure must fall within the scope of one of the exceptions in paragraphs (a)–(j) of Article XX. Second, with regard to some of the paragraphs, the taking of a measure must be necessary for meeting a certain policy objective.114 Third, the measure must comply with the chapeau of Article XX.115 Regarding the first requirement, the Appellate Body has stated: “Paragraphs XX (a) to (j) comprise measures that are recognized as exceptions to substantive obligations established in the GATT 1994, because the domestic policies embodied in such measures have been recognized as important and legitimate in character.”116 113 EC – Tariff Preferences, Panel report, WT/DS246/R, paragraph 7.52. 114 It must be observed that the necessity requirement is not included in all paragraphs, but it is included in paragraph (a) (‘public morals’) and (b) (‘protect human, animal or plant life or health’), which are the most relevant in the context of social human rights. For examples of how the necessity requirement is being interpreted, see US – Gasoline (WT/DS2/R), paragraph 6.20: “The United States had to establish […] that the inconsistent measures for which the exception was being invoked were considered necessary to fulfill the policy objective.” See also ibid, paragraph 6.22: “It was not the necessity of the policy goal that was to be examined [but] …whether these inconsistent measures were necessary to reach the policy goal.” In the GATT Thailand – Cigarettes dispute (BISD 37S/200) paragraphs 72 through 81, it was found that there were various measures available for reaching the policy objective, and that the banning of import of cigarettes was “…not ‘neccesary’ within the meaning of [GATT 1947] Article XX(b).” 115 Korea – Beef, WT/DS161/AB/R, paragraph 164. In this case, the Appellate Body found that the ‘necessity test’ also must include a proportionality test, (‘a process of weighing and balancing a series of factors’, including the ‘importance of the common interests or values protected by that law or regulation’). A measure could also be justified if it was found to only have a ‘slight impact’. 116 US – Shrimps Appellate Body report (WT/DS58/AB/R), paragraph 121, emphasis in original.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
As concerns the second requirement regarding necessity, it must be noted that in no cases has the policy objective been found to be unjustifiable.117 While the necessity of the policy objective per se is not disputed, the crucial issue is whether the disputed measure is necessary for meeting the policy objective. Of particular relevance is whether there were other available alternative measures which did not have the same trade-distorting effects as the disputed measure.118 With regard to the third requirement, relating to the chapeau, the requirements is that the measure does not discriminate in an arbitrary or unjustifiable manner, and that it does not represent a disguised restriction on international trade. The Appellate Body has stated that the crucial issue was “…the manner in which the measure is applied. […] [T]he measures falling within the various exceptions must be applied reasonably…”119 The Appellate Body emphasized even more strongly that the measure per se was not important, but rather whether the measure “was being applied in such a manner as to constitute abuse or misuse of a certain kind of exception.”120 Based on how the adjudicating bodies have been interpreting these three requirements, trade-restricting measures can be justified under Article XX of GATT 1994. The starting point must be the measures themselves, as understood in light of the policy objectives these measures seek to achieve, as well as the chapeau of Article XX. Human rights principles can be taken into account within all three requirements. While human rights might be especially relevant within the scope of the first and second requirement (such as the protection of plant life and health, which are necessary for continued food production), human rights concerns can also be included when determining that a discrimination is neither arbitrary nor unjustifiable, according to the third requirement (such as restricting the introduction of food plants which constitute a threat against such plant life or health). Finally, in the context of this study, applying particularly to developing countries, it should be noted that Part IV of GATT 1994 (‘Trade and development’) explicitly refers to less-developed countries. Thus, Articles 36 through 38 allows for special treatment of such States, in order to increase their market access. As Part IV is on increased access, it is not of particular relevance in the context of this specific analysis, examining when a trade-restricting measure is nevertheless justified. With regard to trade-restricting measures, the phrase ‘discrimination between countries where the same conditions
117 See also WT/CTE/W/203: GATT/WTO Dispute Settlement Practice Relating to GATT Article XX, Paragraphs (b), (d) and (g) - Note by the Secretariat. 118 In the EC – Asbestos (WT/DS135/AB/R), the Appellate Body concluded (paragraph 174) that no other measures were available. It found that the French measure aimed at “…the elimination, or reduction, of the well-known, and life-threatening, health risks posed by asbestos fibres.” WT/DS135/AB/R, paragraph 172 (emphasis added). 119 US – Gasoline Appellate Body report (WT/DS2/AB/R), p. 22. A footnote refers to United States – Import of Certain Automotive Spring Assemblies (BISD 30S/107) paragraph 56, which established this principle. 120 US – Shrimps Appellate Body report (WT/DS58/AB/R), paragraph 116, emphasis in original.
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prevail’ as found in the chapeau of Article XX GATT has not been found to be a basis for any distinction between developing and industrialized countries.121 The WTO Agreement recognizes measures aimed particularly at developing countries, as the preamble emphasizes ‘positive efforts’ to ensure that developing countries secure a share of the growth in international trade, and this part of the preamble has been included in dispute settlement reports.122 The preamble is part of the context for the interpretation of treaties, in accordance with Article 31.2 of the Vienna Convention on the Law of Treaties. The preamble to the WTO Agreement has only been applied in order to confirm interpretations. In conclusion, a trade-restricing measure adopted in accordance with the three requirements identified above can be justified, provided that there are no other measures available which had a less trade-restrictive effect. When are trade-restricting measures justified under TRIPS?: Initially, regarding this question, it must be emphasized that the jurisprudence of the WTO dispute settlement system relating to GATT 1994 cannot be directly applied to TRIPS for determining the requirements that must be met for a trade-restricting measure to be justified. Moreover, there is not only one exceptions provision in TRIPS, and the exception provisions of Part II must be read in light of the objectives (Article 7) and principles (Article 8) of Part I. The study will analyze the jurisprudence under Article 27.2 (exclusions), Article 30 (exceptions) and 8.1 (principles), in order to answer whether human rights principles have been implicitly taken into account when clarificying of these provisions. Article 8.1 is different from the two others as it is a balancing provision for the clarification of other provisions. It is not a substantive exception to be clarified alone. Article 27.2 is the provision of TRIPS which comes closest to Article XX of GATT 1994. In Article 27.2, there are three requirements for finding that an exclusion from patentabiltity is justified. First, the exclusion relates to one of the substantive purposes of protection (ordre€public, morality, human, animal or plant life or health and avoid serious prejudice to the environment). Second, the exclusion is necessary to prevent commercial exploitation in order to protect these purposes. This second requirement can also be clarified in light of Article 8.1, which also includes a necessity requirement. Third, the exclusion is not made merely because the exploitation is prohibited by law of the State. However, an assessment of the jurisprudence of the dispute settlement system with regard to any of these requirements is not possible, simply because the dispute settlement system has clarified neither Article 27.2, nor Article 8.1. There has been some references to Article 8.1,123 but in general terms, and without clarification of the requirement 121 See US – Gasoline (WT/DS2/AB/R), pp. 23-24, discussing whether this phrase applied to conditions in both importing and exporting countries, or only to conditions in exporting countries. 122 EC – Tariff preferences (WT/DS246/AB/R), paragraph 92; see also India – Quantitative restrictions (WT/DS90/R), paragraph 7.2. 123 Canada – Pharmaceuticals (WT/DS114/R), paragraphs 7.26 and 7.92.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
of being ‘necessary’. As there is no jurisprudence from the dispute settlement system regarding Article 27.2, it is uncertain whether the right to food can be taken into account when interpreting the scope of this provision, but the study identifies genetic use restriction technology (GURT) to be of particular relevance in the context of Article 27.2.124 Article 27.2 will not be analyzed further in this section. Article 30 (‘limited exceptions’) is the exceptions provision that has been clarified by a panel.125 All requirements of Article 30 must be met if Article 30 shall apply. A particlular focus will be on the last requirement of Article 30, saying that an exception to a patent shall not ‘unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties’. This requirement of Article 30 is particularly relevant to analyze in a human rights context, as the ‘legitimate interests of third parties’ must be understood to implicitly recognize public interests concerns, including issues relating to access to protected technology. Can human rights be included in a clarification in order to determine who might constiute a ‘third party’? As expressed by Canada, the patent system must seek to balance the interests between the patentee and society.126 On the other hand, the EC “…held that the only relevant ‘third parties’ for the purpose of Article 30 are the patent owner’s competitors…”127 The Panel, however, did not challenge the perception expressed by the EC that only other pharmaceutical producers could be considered as ‘third parties’. but found that Canada met the third requirement of Article 30, and therefore did not need to clarify this latter part of the requirement. It is reasonable to state that not only the competitors can be third parties, as the community as such must be considered to have legitimate interests in how patents are granted and enforced. Hence, human rights can be included in a clarification of Article 30 in order to identify who constitutes a third party. The last provision of TRIPS that shall be examined in this section is Article 8.1. Does the latter part of this paragraph (‘provided that such measures are consistent with the provisions of this Agreement’) imply that the provision has no legal effect? The Panel in Canada – Pharmaceuticals did not object to the EC, which stated that “…public health, nutrition and other public interests were to be considered subordinate to the protection of the intellectual property rights…”128 This is based on wording of Article 8.1, stating that the measures must be consistent with the intellectual property provisions.
124 See the analysis in Chapters 2.3.5, 8.2.3 and 9.2.5. 125 Article 30 (‘Exceptions to Rights Conferred’) reads: “Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.” See the analysis in Chapter 8.2.5 above. 126 WT/DS114/R, paragraphs 7.92 and 7.80. 127 Ibid, paragraph 7.62. The EC continued: “…the patent rights granted by that Agreement, being a part of the balance of rights and obligations that governments have agreed to as beneficial, cannot be found to be adverse to, or in conflict with, the interests represented by general social welfare policy” (ibid). 128 Ibid, paragraph 4.30(a)(I).
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It was emphasized by the Panel that Article 7 and 8 “…shall be borne in mind…”129 and that they “…represent important national policies…”130 At the same time, subsequent to the adoption of this report, it has been confirmed that the provisions of Part II of TRIPS shall be interpreted in light of Article 7 and 8.131 Moreover, Article 7 and 8 could have been clarified in more detail if the issue at hand had been less clear, and therefore needed further elaboration. Hence, while the Panel did not challenge the EC’s position, this does not imply that the Panel accepted the EC’s reading of Article 8. Article 8 must be understood to mean that while TRIPS establishes minimum standards which must be complied with, TRIPS does not impede on the freedom of WTO member States to adopt measures relating to important public policies, including realization of the right to food. However, the legal effect of Article 8.1 is limited by the fact that it cannot be implemented in non-compliance with other TRIPS provisions. When comparing the the two provisions of Part II, the three requirements of Article 27.2 implies that there is a higher threshold for applying this provisions, as compared to Article 30. There are, however, relatively high threshods also for the application of Article 30. The scope of the provisions analyzed above is not adequately clarified by the dispute settlement system, and it remains to be seen to which extent Article 8 can permit the taking into account of principles relating to the right to food. Finally, the question will be answered whether the preamble to the WTO Agreement gives any guidance with regard to the interpretation of the TRIPS Agreement in the interest of developing States.132 As seen with regard to GATT above, the preamble has only been applied in order to confirm an interpretation of one of the substantive provisions of a multilateral trade agreement.133 Hence, it is difficult to affirm that the preamble can be applied in order to allow the taking of measures which are allegedly not in compliance with TRIPS provisions. On the other hand, when interpreting any provisions of the TRIPS Agreement, the preamble of the WTO Agreement can provide additional basis for an interpretation that developing States are permitted to take certain measures, with the understanding that these measures are necessary for meeting certain social policy objectives, are implemented in a non-discriminatory manner and do not imply that the substantive TRIPS provisions cannot be given effect. The WTO preamble can therefore be applied in order to justify the taking of certain measures, in order to confirm an already undertaken clarification.
129 Ibid, paragraph 7.26. 130 Ibid, paragraph 7.92. 131 WT/MIN(01)/DEC/W/2, paragraph 5(a): “…each provision […] shall be read in the light of the object and purpose of the Agreement, as expressed, in particular, in its objectives and principles.” 132 Article XVI:3 reads (extracts): “In the event of a conflict between a provision of this Agreement and a provision of any of the Multilateral Trade Agreements, the provision of this Agreement shall prevail…” 133 See EC – Tariff preferences (WT/DS246/AB/R), paragraph 92; see also India – Quantitative restrictions (WT/DS90/R), paragraph 7.2.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
In conclusion, TRIPS establishes relatively high thresholds for justifying a measure taken in the public interest. There are three requirements under Article 27.2 and three requirements under Article 30 which must be met for these provions to apply. The weight of different evidence: The study will now identify – based on the WTO jurisprudence – how the dispute settlement system relates to different kind of evidence. This is not an analysis of the clarification of the terms of the treaty, but rather how treaties are applied, by assessing facts. On the one hand, natural science evidence, based on laboratory research, is explicitly emphasized in the SPS Agreement, and might also be of relevance when considering inventions which are claimed by one party to a dispute to represent a threat to the life or health of human, animals or plants, or be of serious prejudice to the environment, in accordance with Article 27.2 of TRIPS. On the other hand, Article 27.2 also allows for exclusions from patentability if this is necessary to prevent commercial exploitation in order to protect ordre public or morality. These latter purposes of protection are difficult to justify by any scientific data, but are nevertheless of importance. Moreover, social science evidence, which relates to human behavior, and hence more difficult to control, is also one form of evidence which is relevant. All these forms of evidence are of relevance also in the context of human rights realization. More specifically, the study will both seek to answer whether evidences of a nonnatural science nature will be emphasized in the dispute settlement system,134 and which relationship there is between the various forms of evidences and human rights protection. Before addressing TRIPS, there will be a brief analysis of two disputes under the SPS Agreement. The ruling in EC – Hormones135 has caused most public concern.136 The strong emphasis on scientific evidence of this particular ruling has by the critics been understood to effectively ignore the social concerns, more specifically concerns relating to human health. The Appellate Body applied a less strict interpretation of the SPS Agreement than the Panel, and explicitly criticized the Panel regarding their reasoning. Both of them found that the EU prohibition of certain import of beef containing growth hormones was inconsistent with the SPS Agreement, as the EU could not present convincing evidence regarding the health risks related to consuming such meat.
134 As one example on such non-natural science evidence, see BISD 37S/200: Thailand – Cigarettes, where Thailand was found in violation of its GATT obligations, as its taxes were discriminatory. Serious examinations of Thailand’s justifications were made, such as ‘reduce the area in which tobacco could be planted and the production of cigarettes’ and ‘control smoking’ (paragraph 14). 135 EC – Hormones, (WT/DS26/AB/R - brought by the USA and WT/DS48/AB/R - brought by Canada). 136 See Orford 1999, pp. 170-173, and Dommen 2002, pp. 17-20, for critical assessments, finding that the social concerns are ignored in the EC – Hormones case. See Quick and Blüthner 1999 for an alternative view, emphasizing that the Appellate Body’s interpretation contains a number of legal weaknesses, allowing interpretations which are too strongly based on social concerns rather than the actual text.
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First, the Appellate Body argues for a risk assessment applicable not only to laboratory examinations, but assessing risks “…in human societies as they actually exist, in other words, the actual potential for adverse effects on human health in the real world where people live and work and die.”137 Such reasoning has been heavily criticized by two authors, stating that this is the “…most striking sentence the Appellate Body choses for its reasoning...”138 The authors ask whether this argument signify that societal or consumer concerns should also be considered. They hold that measures without any scientific justification are not in compliance with the SPS Agreement.139 Second, the Appellate Body found “...that the precautionary principle does not override the provisions of Articles 5.1 and 5.2 of the SPS Agreement.”140 Later dispute settlement reports have a slightly different emphasis. In the EC – Asbestos, the panel and the Appellate Body reports emphasized that trade-restricting measures were justified, as asbestos represented “…an undeniable health risk.”141 Moreover, in this case, the Appellate Body has stated that panels “…enjoyed a margin of discretion in assessing the value of the evidence and the weight to be ascribed to that evidence”.142 The term ‘evidence’ must be understood as more than ‘scientific evidence’. The analysis will now turn to Article 27.2 of TRIPS, primarily seeking to identify which requirements the evidences presented to the WTO adjudicating bodies must meet in order to be given weight when Article 27.2 is applied to the facts of the case. Also with regard to scientific evidence, the jurisprudence regarding the SPS Agreement does not necessarily guide the solving of issues under the TRIPS Agreement. As there are no dispute settlement reports which have clarified Article 27.2, the analysis will seek to bring light to the issue, but not seek to conclude definitively. Article 27.2 contains four substantive purposes of protection (ordre€public; morality; human, animal or plant life 137 WT/DS26/AB/R and WT/DS48/AB/R, paragraph 187. 138 Quick and Blüthner 1999, p. 618. 139 On the issue of scientific justification, Quick and Blüthner argue that SPS Article 3.3 allows for two separate options for “…justifying a measure: first, a measure stricter than an international standard which is scientifically justified or second, a measure based on the risk assessment established under Article 5.” (p. 615). They point to a possible inconsistency in Article 3.3, by arguing that the last sentence of this Article implies that States, in implementing Article 3, must act in compliance with any other provision of the SPS agreement, asking if this effectively excludes the first justification, mentioned above. 140 WT/DS26/AB/R and WT/DS48/AB/R Chapter VI, last paragraph. The precautionary principle is only recognized as falling within Article 5.7 on provisional measures: “In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.” Matsushita 2003, p. 203, finds that the precautionary principle can only be based on – and in accordance with – Article 5.7 SPS. 141 EC – Asbestos Panel Report (WT/DS135/R), paragraph 8.203. 142 EC – Asbestos Appellate Body Report (WT/DS135/AB/R), paragraph 161.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
or health; avoid serious prejudice to the environment). The two first of these relate to social concerns, while the two latter relate more to scientific evidence. It is already found that right to food considerations could play a role at least in the context of ‘protect plant life or health’, particularly with regard to GUR technology.143 This analysis will therefore seek to answer whether the terms ‘morality’ and ‘ordre public’, as recognized in Article 27.2 of TRIPS, can give rise to human righs concerns. There are strict requirement for finding that an invention can be excluded from patenability based on either of these two requirements. This applies particularly to the term ordre public, which was preferred to the term ‘public order’, and which relates to the very fundaments of a society.144 Morality has a relationship to the protection of human rights.145 The emphasis will be on the term ‘morality’, analyzed in two contexts. First, with regard to food that is ‘culturally acceptable or non-acceptable’.146 Second, with regard to effects on a given culture, affecting the enjoyment of the right to participate in cultural life, in accordance with Article 15.1(a) of the Covenant. Acceptability: There are higher requirements for stating that an invention relating to food plant is contrary to the morality of a society or community, compared to the requirements for stating that such an invention is not culturally acceptable. At the same time, cultural acceptability can give meaning in order to define what morality might constitute. It can hence not be disregarded that it can be found that an invention relating to food plant and which is considered to be culturally unacceptable by the population, can be contrary to morality. As already indicated, the patenting of a plant which is not able to reproduce (GURTs) is one example. In order to determine that an invention is contrary to morality, both hard evidence from natural and social science disciplines, as well as evidence relating to deep-held and widely-shared public values, are relevant. Cultural life: Regarding the right to participate in cultural life, it must be asked whether an invention relating to a food plant can adversely affect the possibility to enjoy this human right. To provide an example, a situation can be characterized by the existence of a very important or sacred plant which have been subject to attempts of patenting by outsiders. Moreover, these plants are of fundamental importance for the cultural life of the community. Even when these plants might be available for the community, the mere knowledge that someone else is controlling this plant in a modified form can be abhorrent. This situation, creating such level of tensions between local communities and foreign collectors and researchers, is likely. It must be noted, however, that the basis is the morality in the community where the patent application is examined, and not the morality in the community which kept the original resource. The morality requirement 143 See the analysis above, as well as in Chapters 2.3.5, 8.2.3 and 9.2.5. 144 Gervais 2003a, p. 222. 145 For an argument that the TRIPS exclusion provisions can be used to protect human rights, see UN High Commissioner of Human Rights 2005. Moreover, an author finds that morality and human rights express ‘prevailing public values’ (Van Overwalle 2005, p. 221). 146 Cultural acceptability is recognized in General Comment No. 12 on the right to food (UN doc. E/2000/22, pp. 102-110), paragraph 11.
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is met only if the patenting goes against the morality in the first community. Hence, it must be considered that there is a high threshold for taking into account the right to cultural participation in order to clarify the term ‘morality’. This context is hence less relevant than a context characterized by patenting of GURTs. Therefore, it must be acknowledged that in the dispute settlement system, it is easier to make findings based on ‘natural science evidence’ than ‘social science evidence’, as research on human behavior cannot be conducted under similarly strict conditions as laboratory research. Therefore, it is difficult to make a clear conclusion as to the extent to which social concerns will have a crucial role in disputes over TRIPS implementation. Moreover, as regards human rights more specifically, in addition to the potential relevance in the clarification of the term ‘protect plant life or health’, right to food concerns can be taken into account in order to clarify the term ‘morality’. Explanations for limited emphasis on human rights in the dispute settlement system: The WTO’s dispute settlement system has thus far not explicitly taken into account human rights provisions, even if it has acknoweldged human rights-related principles, such as protection of human life or health.147 Some explanations for this will now be provided. First, the term ‘human rights’ is not applied explicitly in any WTO agreement – unlike ‘environment’. There is thus a weaker direct relationship between trade and human rights within the WTO system, compared to the relationship between trade and environment. Second, with particular reference to TRIPS, except for the dispute India – Patents,148 no developing country has been a responding party in disputes arising from implementation of TRIPS, and no party to a dispute has explicitly presented arguments based on their human rights obligations. In fact, except for the particular provisions of Article 70, the TRIPS Agreement did not apply in most developing countries before 1 January 2005, and still does not apply in least-developed countries. An explanation for the limited jurisprudence could also be explained by this fact. Third, as found above, the tensions regarding human rights within the WTO implies that caution is exercised. 10.2.4 The Doha Declaration on TRIPS and Public Health While the above analysis has focused strictly on the dispute settlement system, we will now analyze other WTO decisions. These decisions represent ‘subsequent practice in the application of the treaty’ in accordance with Article 31.3(b) of the Vienna Convention on the Law of Treaties. First, Chapter 10.2.4 will analyze the Ministerial Conference. Second, Chapter 10.2.5 will analyze different WTO supervising bodies. While the Doha Declaration on the TRIPS Agreement and Public Health149 was included in the interpretation of the TRIPS provisions in Chapter 8.2.5 above, the clarification of the specific content of this Declaration, as well as its relevance in the context 147 EC – Tariff Preferences (WT/DS246/R), paragraph 7.52. 148 WT/DS50/R (brought by USA) and WT/DS79/R (brought by EC), respectively, concerning primarily paragraphs 70.8 and 70.9 of TRIPS. 149 WT/MIN(02)/DEC/W/2; adopted at the Fourth Ministerial Conference of the WTO, held in Doha, Quatar.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
of this study, will now be analyzed. It was found in Chapter 3.3.2 that the Declaration does not fulfill the requirements for being an interpretation in accordance with Article IX:2 of the WTO Agreement, but that it can nevertheless be a ‘subsequent agreement between the parties regarding the interpretation of the treaty’ in accordance with Article 31.3(a) of the Vienna Convention on the Law of Treaties. The other declaration adoped in Doha, the Ministerial Declaration,150 will not be analyzed in detail, as its main purpose is to outline a comprehensive work program, with negotiations on several items to be concluded no later than 1 January 2005,151 including an examination of TRIPS relationships with other legal systems, and ‘other relevant new developments’.152 The Doha Ministerial Declaration itself includes no clarifications of provisions. Previous ministerial declarations are not considered relevant for the purpose of this book, but it must be observed that the Singapore Ministerial Declaration has confirmed the phrase of the preamble of the WTO Agreement, on ‘raising standards of living’.153 There is no reference to the human right to health in the Declaration on TRIPS and Public Health. An earlier draft from some developing countries drew attention to “…the obligation to protect and promote the fundamental human rights to life and the enjoyment of the highest attainable standard of physical and mental health, including the prevention, treatment and control of epidemic, endemic, occupational and other diseases and the creation of conditions which would assure to all medical service and medical attention in the event of sickness, as affirmed in the International Covenant on Economic, Social and Cultural Rights.”154 This attempt by developing countries to establish an explicit link between TRIPS and human rights was not included in the final Declaration. Hence, the disagreements 150 WT/MIN(01)/DEC/W/1. 151 This deadline was not reached. 152 Paragraph 19 is the most relevant Article from the Ministerial Declaration for the pupose of this book. Its full text reads: “We instruct the Council for TRIPS, in pursuing its work programme including under the review of Article 27.3(b), the review of the implementation of the TRIPS Agreement under Article 71.1 and the work foreseen pursuant to paragraph 12 of this Declaration, to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments raised by Members pursuant to Article 71.1. In undertaking this work, the TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension.” The phrase ‘other relevant new developments’ of paragraph 19 of the Doha Ministerial Declaration is based on the third sentence of Article 71.1, and relates primarily to the development of new technologies, including biotechnology applied on natural resources (see the briefing note (‘Negotiations, implementation and TRIPS Council work’) to the Fourth Ministerial Conference in Doha in 2001, with a reference to “…other issues such as the protection of traditional knowledge, and new technological developments” (emphasis added). See: <www. wto.org/english/thewto_e/minist_e/min01_e/brief_e/brief08_e.htm>). 153 Singapore Ministerial Declaration (WT/MIN(96)DEC) paragraph 2. 154 IP/C/W/312: Proposal: Draft Ministerial Declaration: Proposal from a Group of Developing Countries.
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between the parties, as well as the non-observance of the procedures for adopting an interpretation, imply that the Declaration is of relevance for confirming important principles, more than being an interpretation per se. Moreover, the Declaration must be understood as contributing towards the realization of the right to the highest attainable standard of health, particularly as a result of the implementation of the subsequent decision of 30 August 2003.155 The consequences of such understanding must be assessed. One author finds that the Declaration identifies health as an interpretative principle in relation to implementation of TRIPS.156 The fact that some WTO Member States were not prepared to adopt an explicit right to health approach in the Declaration must not indicate that health concerns shall be ignored. Rather, the TRIPS Agreement itself acknowledges in Article 8.1 measures to protect public health, ‘provided that such measures are consistent with the provisions of this Agreement’. Based on this, what is the substantial contribution of the Declaration on the TRIPS Agreement and Public Health? While the actual importance of this Declaration is relating to legal and political measures strictly in the field of medicines, we will analyze whether the Declaration established general principles that might also be applicable with respect to issues relating to food. Paragraphs 4, 5 and 7 of the Declaration are considered to be of particular importance. Paragraph 1 through 3 are merely introductory, setting the context for the Declaration. Paragraph 6 relates to compulsory licensing, which is more relevant for medicines than for patented biotechnoglogy in the field of food and agriculture.157 In the following, those paragraphs of the Declaration which are general, and which do not specifically refer to HIV/AIDS will be analyzed. Paragrah 4 reaffirms the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement which provide flexibility. Paragraph 5(a) states that each provision of the TRIPS Agreement shall be read in light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles. This principle is a reconfirmation of Article 31.1 of the Vienna Convention on the Law of Treaties, which is a reflection of customary law. As such, it does not say anything new concerning interpretation of TRIPS. This emphasis on certain provisions of Part I of the TRIPS Agreement can also be considered to send a signal to the dispute settlement system that the provisions in Part I of TRIPS should also be more explicitly applied in the clarification of the terms of the other Parts of the TRIPS Agreement. In the subsequent disputes over TRIPS, there has not been a clarification of the provisions of Part I. Paragraph 5(d) relates to the exhaustion of intellectual property rights. The provision on exhaustion in TRIPS (Article 6) states that nothing in this Agreement shall be used 155 Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (WT/L/540). 156 Gregg Bloche 2002, pp. 843-848. 157 It should, however, be noted that UPOV 1991 does regulate compulsory licensing in Article 17, including a requirement that the breeder shall be paid adequate remuneration. For a good overview of compulsory licenses; see: <www.cptech.org/ip/health/cl/>.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
to address the issue of the exhaustion of intellectual property rights.158 This principle is simply reconfirmed in the Declaration, stating that TRIPS leaves each Member free to establish it own regime for such exhaustion, subject to the standard WTO principles of national treatment and most-favored nation. Paragraph 7 addresses the special needs of least-developed countries, in accordance with TRIPS Article 66, relating to technology transfer (Article 66.2) as well as the date for the application of the TRIPS provisions (Article 66.1). What is new in substance in this paragraph is the time extension for when the provisions in Section 5 (patents) and 7 (protection of undisclosed information) in Part II of the TRIPS Agreement shall be implemented. All least-developed States shall not be required to apply the provisions in these sections until 2016.159 It must be observed that such extension was possible to achieve only with regard to pharmaceutical products, which is generally strongly protected by patents, but subsequently there has been a general extension for all leastdeveloped countries.160 It must be asked whether this time extension for the application of the provisions of TRIPS can also be negotiated for other subject-matter than pharmaceutical. It is remarkable that it was possible to adopt a subsequent agreement on the application of the provisions of the TRIPS Agreement in order to provide for some flexibility, particularly relating to a subject matter which is most rigorously protected. The Doha Declaration on TRIPS and Public Health, addressing medicines specifically, has introduced certain important principles, such as the promotion of ‘access to medicines for all’161 and that each Member ‘has the right to determine what constitutes a national emergency’.162 These principles are a reaffirmation both of principles for the interpretation of treaties, in accordance with the Vienna Convention on the Law of Treaties, as well as the provisions already existing in the TRIPS Agreement.163 The most notable exception to this assertion of the limited effect of the Declaration is paragraph 7. This provision on the extended time for the application of specific parts of the TRIPS is the only part of the Declaration which substantially affects the implementation in least-developed countries, but only for pharmaceuticals. It is furthermore important that the Declaration refers to the object and purpose of the TRIPS Agreement, in particular as expressed in TRIPS Articles 7 and 8. This principle of interpretation is in contrast to the argument brought by the EC in Canada – Pharmaceuticals, as seen in Chapter 10.2.3 above. It still remains to be seen which influence the Declaration on the TRIPS Agreement and Public Health will have in po158 See Chapter 8.2.5, analyzing Article 6. 159 Paragraph 7 of the Declaration goes further than the TRIPS Agreement, by granting this extension to all least-developed member States. TRIPS Article 66.1 allows for extension “…upon duly motivated request by a least-developed country Member”, implying that individual requests is the norm. 160 For the 29 November 2005 decision, see: <www.wto.int/english/news_e/pres05_e/pr424_ e.htm>. 161 Paragraph 4 of the Doha Declaration on TRIPS and Public Health. 162 Ibid, paragraph 5(b). 163 See also the analysis by Pires de Carvalho 2005.
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tential future disputes before the dispute settlement system. It remains to be seen if the application of Articles 7 and 8 of the TRIPS Agreement will result in rulings which are more sensitive to the special needs of developing countries and least-developed countries. There has been no subsequent ruling relating to TRIPS which can confirm whether this Declaration actually indicates a shift in the interpretation of the TRIPS Agreement toward emphasizing Articles 7 and 8 to a greater extent. Paragraph 5(a) is the element of the Declaration which emphasizes this interpretation most explicitly. At the same time, the substantive provisions in Part II of TRIPS are still the basis from which the rights and obligations under TRIPS must be identified. The Declaration on TRIPS and Public Health – as well as the Ministerial Declaration, which has not been analyzed here – represent a general recognition of a better integration of trade and non-trade concerns. The references to other treaties and terms in the Ministerial Declaration clearly illustrate that none of the WTO agreements can be applied in isolation from general international law. It is not found that the Declaration on TRIPS and Public Health per se represents any shift towards a more explicit recognition of human rights law. The Declaration does, however, confirm principles of international law, of which human rights are part. 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
The three bodies to be examined have been chosen because they are found to be most relevant in the context of the particular focus of this Chapter, analyzing to which extent the right to food has been taken into account or referred to by the the supervisory bodies. Documents from the Committee on Trade and Environment (CTE) and the Committee on Trade and Development (CTD) have also been examined, but little of relevance has been found regarding how the States understand the TRIPS provisions.164 Issues relating to agriculture are controversial in the WTO. This relates as much to the Agreement on Agriculture as to the TRIPS Agreement. Moreover, human rights are controversial in the WTO.165 Presently, the term ‘right to food’ is only referred to in WTO documents containing background positions,166 and human rights treaties are 164 In the CTE, see document WT/CTE/W/8 on TRIPS and environment. Regarding CTD, most documents relate to special and differential treatment. As an example of issues arising under the Committee on Trade and Development of relevance for this book, see section O in document WT/COMTD/W/77, addressing intellectual property issues. This section is general, and is of limited relevance for the purpose of this book. 165 There is a distinction, however, between economic rights (right to work and working standards) on the one hand, whose introduction in the WTO is opposed by developed countries and favored by certain industrialized countries, and social rights on the other (right to health and food) whose introduction in the WTO is favored by developed countries and opposed by certain industrialized countries. 166 See G/AG/NG/W/36/Rev.1 of 2000.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
referred to only exceptionally. One author questions “…why WTO diplomats ignore human rights law and why WTO rounds focus so one-sidedly on producer interests […] to the detriment of consumer interests and the human rights of all citizens.”167 The various supervising bodies of the WTO are political bodies. At the same time, as clarified initially in Chapter 10.2.4 above, the adoption of decisions in supervisory bodies do represent ‘subsequent practice in the application of the treaty’. Therefore, such decisions must not be seen as belonging to a different realm, being considered in isolation from the interpretation of a treaty. It will now be examined whether any reports or decisions of relevance for this book have been adopted. Three bodies of the WTO, responsible for the supervision of the implementation of the WTO obligations, will be analyzed: the TRIPS Council, the Trade Policy Review Body and the Committee on Agriculture. The aim is to identify if and to which extent there is a reference to human rights obligations in these bodies. Council on TRIPS: Article 68 of the TRIPS Agreement states that the Council “…shall monitor the operation of this Agreement and, in particular, Members’ compliance with their obligations…” Other relevant articles on the role of the Council for the functioning of TRIPS are Article 63.2 on notification,168 as well as Article 71 on review and amendment. Moreover, the Council on TRIPS has a mandate under the ‘built-in agenda’ (Articles 23.4, 24.1, 24.2, 27.3(b) and 64.3). While the meetings of the Council on TRIPS are primarily devoted to implementation issues, this does not exclude the possibility to express views on the negative implications of TRIPS. As an example of an explicit and broad criticism of the TRIPS Agreement, the statement before the Council on TRIPS by Bangladesh is illustrative: “…the patent provisions of TRIPS allowed countries to recognize monopoly rights over individual genes and their characteristics, which negated farmers’ rights over seeds and propagating material with such genes and characteristics, reduced genetic diversity, made crops more vulnerable to pest attacks and has raised the costs of seeds and agricultural inputs to unaffordable levels for poor farmers.”169 It should be noted that the term ‘farmers’ right’ is applied, but not human rights. Also, the European Communities have 167 Petersmann 2000, p. 1374; see also Petersmann 2001a, p. 27 and p. 30. The term ‘impact’ is also used by the High Commissioner for Human Rights (Sub-Commission 2001d), but is not considered as a generally accepted principle for identifying the relationship between treaties; see, however, Chapter 12.3.1. 168 The relevant documents outlining the content of this notification were adopted by the TRIPS Council 21 November 1995. They are: IP/C/2, titled ‘Procedures for notification of, and possible establishment of a common register of national laws and regulations under Article 63.2, IP//C/4, titled ‘Format for listing of ‘other laws and regulations’ to be notified under Article 63.2’ and IP/C/5, titled ‘Checklist of issues on enforcement required by TRIPS covering the sections of Part III’. IP/C/4 requests information under each section of Part II and Part III of the TRIPS Agreement, as well as ‘any administrative procedures and remedies not covered above’. Matthews 2002, p. 80, elaborates on the obligation of each State party to submit information to the TRIPS Council once their transitional period has come to an end. 169 IP/C/M/42, of 4 February 2004: Council for Trade-Related Aspects of Intellectual Property Rights - Minutes of Meeting 18 November 2003, Paragraph 102, p. 20.
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addressed the ‘rights of small and subsistence farmers’.170 This term, however, is used in the context of farmers’ rights, which was mentioned in Chapter 9.2.4, and which does have a relationship to the right to food. There are no States which have referred explicitly to other treaty obligations during the review of their legislation by the Council on TRIPS, in order to build support for its particular TRIPS implementation, applying the TRIPS flexibilities. Particularly in light of the obligation to take measures relating to food production and distribution, States are required to take into account their human rights obligations when entering into agreements with other States.171 This is not done, however, by any State. While there is nothing preventing any State from addressing its obligations imposed by the right to food in the meetings of the Council on TRIPS, it must be observed that not even developing States have brought up issues relating to the right to food, despite the reference to ‘nutrition’ in Article 8.1. The scope of Article 8.1 has still not been substantially addressed, but as seen in Chapter 10.2.4 above, the Doha Ministerial Declaration on TRIPS and Public Health reconfirmed that ‘each provision of the TRIPS Agreement shall be read in light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles’. Trade Policy Review Body: Intellectual property protection is also considered part of the assessment of policies by the Trade Policy Review Body.172 The emphasis is whether the legislative measures are compatible with TRIPS, but there are also references to bilateral agreements. The following quotation is illustrative: “In the area of intellectual property rights, Sri Lanka had taken a major step forward in November 2003, when the new intellectual property law came into force. The new law satisfies commitments made pursuant to TRIPS and to the U.S.-Sri Lanka Bilateral IPR Agreement.”173 As the emphasis is strictly on implementation of WTO agreements, obligations under other international agreements tend not to be considered. Moreover, States seek to emphasize their technological and economical potential, which must be considered to be a precondition for the successful implementation of the WTO agreements, including 170 IP/C/M/40, of 22 August 2003: Council for Trade-Related Aspects of Intellectual Property Rights - Minutes of Meeting 4 - 5 June 2003, paragraph 94, p. 19. 171 The Maastricht Guidelines on Violations of Economic Social and Cultural Rights 1998, paragraph 15(j) and General Comment No. 12, paragraph 19, both find that the failure to take into account its international legal obligations when entering into such agreements can represent a violation of the right to food. 172 The General Council is meeting as the Trade Policy Review Body, which is mandated to review the regular reports submitted by States in accordance with the Trade Policy Review Mechanism, Annex 3 to the WTO Agreement. There are four important documents from the Trade Policy Review. They are termed G (government’s report) S (WTO secretary’s report), M (Minutes of the meeting) and M/Add.1 (written questions and answers). Until 2001, the written questions and answers were included as Annex 1 to the Minutes of the meeting (M), in the same document. From 2001, written questions and answers are included as Add.1, in a separate document. 173 WT/TPR/M/128, 16 April 2004, Sri Lanka (Minutes of meetings of 3 and 5 April 2004) Paragraph 86: Comments by US; see also paragraphs 121, 125, 126.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
the TRIPS Agreement.174 Therefore, the meetings before the Trade Policy Review Body have until now not been considered as appropriate for presenting problems arising from potentially conflicting obligations these States have under non-WTO treaties. The Trade Policy Review Mechanism does not explicitly provide for any means through which other obligations, including human rights obligations, of the WTO member States can be taken into account. The WTO member States emphasize their loyal implementation of the TRIPS Agreement, and do not seem to have a specific strategy within the WTO to build understanding for laws and policies aimed at serving public interest, based on the flexibilities established by TRIPS. Committee on Agriculture: The preamble of the Agreement on Agriculture addresses “…non-trade concerns, including food security…”175 Article 20(c) states that members shall take into account non-trade concerns and the other objectives and concerns mentioned in the preamble to the Agreement on Agriculture. In documents before the Committee on Agriculture, some States have actually established a relationship between food security and the right to food. Mauritius has made an explicit reference in a submission in the context of the negotiations of the Agreement on Agriculture, in which the Mauritius delegation stated that Article 20 in the Agreement on Agriculture should be read in light of Article 11 on the right to adequate food of the International Covenant on Economic, Social and Cultural Rights.176 Norway has made references to Article 11.1 of the Covenant, to Objective 7.4 of the 1996 World Food Summit Plan of Action, as well as General Comment No. 12 by the Committee on Economic, Social and Cultural Rights.177 The meeting for which these documents were prepared did not analyze the right to food and its implications for the State obligations under the Agreement on Agriculture. What we are left with are only individual State opinions. No subsequent meeting in the Committee on Agriculture has addressed the right to food. Any future reference to the right to food cannot be categorically excluded, however, as a determination of the right to food can bring more clarity to the concept ‘food security’. References to and discussions concerning the right to food are substantially different from general agreements regarding the application of the right to food, and the latter must be considered difficult 174 One example can be found in the written submissions before the above-mentioned meeting considering Sri Lanka. In the response from the Sri Lankan delegation, the following confirmation – relevant for the subject of this book – was made: “Sri Lanka recognizes the important role played by Biotechnology in addressing issues relating to food shortages and generating high yielding varieties.” (WT/TPR/M/128, Add.1 (advance written questions and responses), Paragraph 2.8.6). 175 The concept of ‘food security’ is more frequently applied by international organizations than the right to food concept. ‘Food security’ does not emphasize the obligations on the States concerning how to enable everyone to realize the right to food. 176 G/AG/NG/W/36/Rev.1, Discussion Paper Five: Developing countries and non-trade concerns. 177 Ibid, Discussion Paper Six: The need for flexibility in national policy design to address nontrade concerns.
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in the context of the WTO. It cannot be excluded that the right to food obligations will be taken into account in any interpretation of TRIPS, since – in the last decade – certain attention has been devoted to understand State obligations imposed by the right to food. Summary: Regarding the supervisory and decision-making bodies, the explanations for this lack of observance of other international obligations in the review of the TRIPS implementation relates to whether a WTO body has the capacity to refer to other treaty obligations, given the duration of meetings, the scope of relevant WTO agreements, and the mandates given to the bodies. Moreover, with regard to these bodies, one might ask whether it is in fact politically feasible that additional obligations arising from other treaties will be emphasized, as the States under review or examination tend to emphasize their loyal implementation without emphasizing their obligations under other treaties. 10.3
Could the International Court of Justice Solve a Dispute Relating to Patent Protection and the Right to Food?
Based on the presentation of, respectively, the practice and jurisdiction of the Committee on Economic, Social and Cultural Rights and the WTO’s dispute settlement system, it must be concluded that neither has a mandate which implies that they are able to identify whether there is a conflict between provisions of the treaties, and how such an alleged conflict eventually can be solved. In this section, it will be analyzed whether the International Court of Justice (ICJ) can be involved in disputes arising from the implementation of the TRIPS Agreement and the International Covenant on Economic, Social and Cultural Rights. More particularly, the section will analyze whether the ICJ can actually apply all relevant rules of international law, including provisions of the TRIPS Agreement and the Covenant in order to solve a conflict, through the means of a judgment or an advisory opinion. Judgment in a dispute between States: The first question is whether the ICJ has jurisdiction over human rights and WTO law, and whether it has in fact exercised this jurisdiction. The Statute of the ICJ says in Article 36.1: [t]he jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties or conventions in force.178
Article 36.6 says: In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the Court. 178 See also Article 36.2 on declarations by State parties recognizing the jurisdiction of the Court in all legal disputes concerning, inter alia, the interpretation of a treaty and any question of international law.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
Therefore, there are, in principle, no limitations regarding which disputes that can be determined by the ICJ. Regarding human rights, the ICJ has made references to the right to self-determination179 and ‘basic rights of the human person’,180 but no decision in any dispute between States has explicitly addressed economic, social and cultural rights.181 With regard to WTO provisions, no cases relating to implementation of the WTO Agreement have been before the ICJ. WTO agreements, however, can be brought before the ICJ, provided that Article 23 of the Dispute Settlement Understanding is observed.182 While a panel has found that Article 23 gives the WTO ‘exclusive dispute resolution clause’ to address violations of WTO provisions,183 this provision primarily states that the dispute shall be solved by multilateral, and not unilateral means.184 In a dispute that 179 See ICJ Reports 1971, pp. 31-32, ICJ Reports 1975, pp. 31-33 and ICJ Reports 1995, p. 102. 180 See ICJ Reports 1970, p. 32. 181 In the Advisory Opinion on Legal consequences of the construction of a wall in the Occupied Palestinian Territory, of 9 July 2004, paragraph 134, the ICJ concludes that the construction of the wall impedes the liberty of movement, recognized in Article 12.1 of the International Covenant on Civil and Political Rights. This “…impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the United Nations Convention on the Rights of the Child.” In paragraph 137, the language is even more explicit: “The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments.” See also paragraph 133 on the actual situation in the Occupied Palestinian Territories, and paragraph 130 referring to the rights recognized in Articles 6, 7, 10, 11, 12, 13 and 14 of the International Covenant on Economic, Social and Cultural Rights. Moreover, in paragraph 112, Article 14 of the Covenant was outlined, referring to the obligations to adopt a detailed plan of action if compulsory primary education, free of charge had not been secured “…in its metropolitan territory or other territories under its jurisdiction…” (emphasis added). The ICJ found that it cannot be “…excluded that [the Covenant] applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction.” The ICJ also assessed the limitation of rights clause of Article 4 of the Covenant. The ICJ found in paragraph 136 that “…the restrictions on the enjoyment […] of their economic, social and cultural rights, resulting from Israel’s construction of the wall, fail to meet a condition laid down by Article€4 […] that their implementation is ‘solely for the purpose of promoting the general welfare in a democratic society’.” 182 Article 23.2(a) of the Dispute Settlement Understanding (DSU) states that the WTO member States shall “not make a determination to the effect that a violation has occurred […] except through recourse to dispute settlement […] and shall make such determination consistent with the findings contained in the WTO panel and Appellate Body report…” 183 See US – Section 301-310, WT/DS152/R, paragraph 7.43. See also Marceau 2002, p. 756 and p. 760, noting, however, on p. 761 that this ‘exclusive jurisdiction’ does not resolve the complicated issue of overlaps and conflicts of jurisdictions between different treaties. 184 WT/DS152/R, paragraph 7.43: Article 23 “…imposes on all Member to ‘have recourse to’ the multilateral process set out in the DSU when they seek the redress of a WTO inconsistency.”
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does not only affect WTO obligations, but also obligations imposed by other international treaties, the ICJ would be a more appropriate forum than the WTO dispute settlement panel, which can only apply WTO law. Therefore, parties to a dispute involving both trade and obligations arising under other treaties can ask the ICJ to solve the dispute, provided that Article 23 of the DSU is adequately observed. Disputes that relate strictly to WTO agreements are not appropriately addressed by the ICJ. Hence, the International Court of Justice is not prevented from solving any disputes between States which relate to either human rights or trade, including intellectual property rights. The main difference between disputes involving trade and disputes involving human rights is that trade disputes have an institutional framework for dispute settlement through the WTO’s Dispute Settlement Understanding. Moreover, it must be noted that only 64 States have recognized as compulsory the jurisdiction of the International Court of Justice,185 in accordance with Article 36.2 of the Statute.186 While this provision asserts that the States which have made a declaration under Article 36.2 consider the ICJ’s jurisdiction as compulsory in all legal disputes concerning, inter alia, any question of international law, this provision cannot terminate a dispute settlement process within the WTO which has been established by a decision by the Dispute Settlement Body, in accordance with Article 6 of the DSU. Any parallel procedures regarding the same dispute before the ICJ and the WTO’s Panel must be considered problematic. On the one hand, the WTO’s dispute settlement system has an automatic jurisdiction to solve any dispute relating to any WTO agreement, but is strictly limited to only apply WTO law in its proceedings, taking place in accordance with DSU Articles 12 through 24. Therefore, if the dispute relates to obligations arising under other treaties, the matter might fall outside of the fomal competence of the WTO panel, and is therefore better solved by the ICJ. Advisory opinions: The provisions of the ICJ Statute relating to advisory opinions are primarily procedural. Article 68 of the Statute states: In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable.
The Statute for the International Court of Justice does not mention anything concerning the legally binding force of advisory opinions. In an early decision, however, the ICJ says that an advisory opinion “…has no binding force. It follows that no State, whether 185 As of 31 July 2003, 191 States are parties to the ICJ. 186 Article 36(2) reads: The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature of extent of the reparation to be made for the breach of an international obligation.
Jurisdictional and Jurisprudential Issues under the Covenant and the TRIPS Agreement
a Member of the United Nations or not, can prevent the giving of an advisory opinion…[…] The Court’s Opinion is given not to the States, but to the organ which is entitled to request it […] and, in principle, should not be refused.”187 Also, with regard to advisory opinions, the ICJ itself decides on its competence: “… the Court may give an advisory opinion on any legal question, abstract or otherwise.”188 With regard to advisory opinions, it should be noted that the ICJ makes a thorough assessment as to whether it shall exercise jurisdiction in a particular case. Article 96.2 of the Charter and Article 65.1 of the Statute says that advisory opinions may only be requested by an organ of the United Nations which has been authorized by the General Assembly or by the UN Charter. The wording “…may give an advisory opinion…” of Article 65.1 implies that the ICJ can decline to give such an advisory opinion. The ICJ itself, however, confirms that it is not likely to decline to give an advisory opinion. This is confirmed in the advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories: “In accordance with its consistent jurisprudence, only “compelling reasons” should lead the Court to refuse its opinion. […] The present Court has never, in the exercise of this discretionary power, declined to respond to a request for an advisory opinion.”189 Concerning the request for an advisory opinion, two conditions must be met. First, the mandate to request an advisory opinions is limited to UN organs. There is no requirement that the question raised before the ICJ must be subject to previous political negotiations in the relevant UN organ, as was the case when the WHO raised the question on the legality of the threat or use of nuclear weapons.190 Second, the ICJ confirms that “…the question should be one arising within the scope of the activities of the requesting organ.”191 The Court itself has the responsibility to ensure that the request for an advisory opinion comes from an organ or agency having competence to make it.192 Notwithstanding these requirements that must be met before the ICJ proceeds with an advisory opinion, the Court has jurisdiction to give an advisory opinion on any legal question, in accordance with Chapter IV of the Statute. It cannot be determined in the abstract whether an advisory opinion will be accepted by all parties to the treaties which have been involved. However, as only 64 States have recognized the jurisdiction of the ICJ in all legal disputes, the remaining States are in principle free to decline to accept an advisory opinion. The result in such instances 187 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, ICJ Reports 1950, 71. On the advisory jurisdiction of the ICJ as developed in its early years, see Fitzmaurice 1986, pp. 564-575. 188 Legal consequences of the construction of a wall in the Occupied Palestinian Territory of 9 July 2004, paragraph 40. 189 Ibid, paragraph 44. 190 The Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports 1996, p. 68. 191 Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, ICJ Reports 1982, pp.€333â•‚334, paragraph€21. 192 Legal consequences of the construction of a wall in the Occupied Palestinian Territory, of 9 July 2004, paragraph 15.
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would be that the advisory opinion is of limited relevance in order to solve the underlying conflict between the parties to the treaty. Are matters involving patent rights and human rights best solved by the ICJ?: No basis was found in either the UN Charter, in the ICJ Statutes, or in the practice of the Court, which categorically excludes the possibility that the ICJ determines that it has both the jurisdiction and the competence to consider matters arising from the exercise of the right to food, as recognized in the Covenant, and the exercise of patent and plant breeders rights, as recognized under TRIPS. The study will now analyze whether a matter arising from the implementation of the TRIPS Agreement and the Covenant will actually be brought before the ICJ. In this context, it must be noted that are no reference to the ICJ in the Covenant and in TRIPS, unlike treaties which includes provisions saying that disputes arising under the treaty are to be solved by the ICJ.193 Such lack of explicit reference does not exclude any State from bringing up any matter from any treaty before the ICJ. To use the ICJ for solving disputes arising from international treaties, however, is not a regular practice. The binding force of a decision by the Court when solving a dispute between two or more State parties only applies to the parties, in accordance with Article 59 of the Statute. Therefore, any decision cannot be applied in a legally binding manner to other States. On the other hand, an advisory opinion from the ICJ may contribute to clarification of obligations imposed by the treaties which have been referred to and considered by the Court, and will hence apply to all the parties of the respective treaties. The outcome of any decision by the International Court of Justice is not possible to predict. It is expected that the relationship between the ‘exclusive competence’ given in accordance with Article 36.2 of the ICJ Statute, and the ‘exclusive dispute resolution clause’ which the Panel has implied by Article 23 DSU, might be a contentious issue. This could be solved if any of the two WTO bodies claim that they do not have competence to make a ruling. Moreover, as to whether the ICJ is willing to adopt an advisory opinion on any matter which has already been considered by the WTO’s dispute settlement system is not possible to predict. The question put forth by the UN organ to the ICJ should, as a minimum, be framed more generally than the specific dispute arising under the WTO.
193 Among the treaties asserting that disputes over the interpretation or application of treaties can be brought before the ICJ are the Paris Convention for the Protection of Industrial Property (Article 28.1), the CBD (Article 27.3(b)), and the Convention on the Settlement of Investment Disputes by States and Nationals of Other States (Article 64).
11
Principles for Identifying and Solving Conflicts between Treaties, as well as Identifying the Nature of Treaties, Applied to TRIPS and the Covenant
This chapter seeks to identify the principles for solving conflicts between treaties in situations where it is found to be impossible to interpret the treaties in a manner which does not lead to conflict between treaties. This can also be termed ‘conflicts in the applicable law’. A particular emphasis is on human rights and intellectual property. More specifically, the chapter will analyze whether there might be a conflict between the TRIPS Agreement and the two articles of the International Covenant on Economic, Social and Cultural Rights which have been identified as the most relevant for the purpose of this book. First, Chapter 11.1 will present the established principles for determining whether there is a conflict between treaties. It will then assess whether the traditional understanding of conflict, focusing on obligations that cannot be complied with simultaneously, should be supplemented by an understanding of conflict focusing on whether a State can adopt the prescribed measures under the two treaties simultaneously. Chapter 11.2 will analyze if the principles for solving conflicts (lex superiori, lex posteriori and lex specialis) apply to the particular topic of this book, based on an understanding that conflict between treaties only arises when they relate to the ‘same subject matter’. Chapter 11.3 will examine the legal concepts of ‘obligations erga omnes’ and ‘multilateral obligations’, particularly applied on human rights treaties and WTO treaties, in order to identify if a treaty protects important interests. These legal concepts are relevant in order
See Pauwelyn 2003c, Chapter 7, on this ‘conflict in the applicable law’. The other, more fundamental category of conflict is ‘inherent normative conflict’, analyzed in his Chapter 6. This study will not consider this latter category. There are two consequences of identifying ‘inherent normative conflict’: either, one of the two norms ceases to exist; or one of the two norms is illegal. Any identification of inherent conflict between the TRIPS Agreement and the International Covenant on Economic, Social and Cultural Rights is difficult. Focus will rather be on the ‘conflict in the applicable law’ level of conflict. On the other hand, the object and purpose of the two treaties is different (see Chapter 12.2.4). While the Covenant regulates access to scientific improvements as a human right for everyone, the TRIPS Agreement regulates how the scientific improvements are available by the conditions set by the right holder. At the same time, it can be argued that the two treaties relate to the same subject matter (see Chapter 11.2.2).
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to identify whether there are additional bases for establishing some kind of hierarchy between treaties, in addition to the lex superior and jus cogens norms. The choice of elaborating on conflict between the treaties was made simply because of the observation that there is an ‘apparent conflict’ between the two treaties. This general observation must also be understood as an invitation to analyze the relationship between these two treaties in greater detail. This chapter is theoretical, but attempts to identify overall principles and interests which are protected by different treaties, and the role of these principles and interests in interpreting treaties. It also attempts to clarify the requirements for solving alleged conflicts between treaties. 11.1
Conflict between Treaties
In a study for the International Law Commission, Koskenniemi distinguishes between three types of normative conflicts: between general law and a particular, unorthodox interpretation of general law; between general law and a particular rule that claims to exist as an exception to it; and between two types of special law. It is the third of these – conflict between two types of special law – that will be subject to an analysis in this section. 11.1.1
The Terms
In this section on conflict, the more established, narrow understanding of conflict will be applied in Chapter 11.1.2. Chapter 11.1.3 below will introduce conflicts on the level of taking measures. Before elaborating on the central elements of these two, a brief clarification of relevant terms will be made. There is first of all a need to give more clarity to the terms ‘conflict’ and ‘incompatibility’, as well as ‘inconsistency’. The term ‘conflict’ can be understood as being more narrow than the two other terms. In the Appellate Body, the following definition of
First observed in Sub-Commission 2000a (E/CN.4/Sub.2/Res/2000/7), paragraph 2. Koskenniemi 2003, p. 1. Two examples of how drafters of international treaties have changed the terms will be provided. First, in the ILC preparation of what was to become the Vienna Convention on the Law of Treaties, the term ‘conflict’ in what is now Article 30 was replaced by the term ‘incompatibility’ (See Yearbook of the International Law Commission 1964, Vol. II, pp. 34-35 and p. 185). The title of the article also changed three times, from ‘Priority of conflicting treaty provisions’ (ibid, p. 34) via ‘Application of treaties having incompatible provisions’ (ibid, p. 185), to ‘Application of successive treaties relating to the same subject matter’ (Yearbook of the International Law Commission 1966, Vol. II, p. 214). See also Pauwelyn 2003c, note 35, p. 169-170. Second, in the General Interpretative Note to Annex 1A of the WTO Agreement, the term ‘conflict’ appears twice. In an earlier draft, the term at the very last of this Note was ‘inconsistency’, but this term was later replaced with the term ‘conflict’. Japan, which proposed this amendment, later explained their position: “…it was intended to clarify the limited number
Solving Conflicts between Treaties, Identifying the Nature of Treaties
conflict has been given: “…a situation where adherence to the one provision will lead to a violation of another provision.” The WTO’s dispute settlement panel also operates with an understanding of conflict on the level of State obligations. One panel has stated that the obligations are not mutually exclusive if the State is able to respect its obligations under one treaty without violating its obligations under another treaty. In a comprehensive study on conflict of norms in public international law, Pauwelyn finds that when it comes to conflict of norms, ‘conflict’ and ‘inconsistency’ can be used interchangeably. He also explains that with regard to breaching of international treaty norms, the terms ‘breach’, ‘violation’, ‘incompatibility’ and ‘inconsistency’ can be used interchangeably. Pauwelyn establishes a framework for determining conflicts, where ‘permissions’ and ‘exemptions’ are also included. Of particular relevance for the purpose of this book is the possible existence of a conflict in situations other than conflicting obligations. A human rights treaty – as well as other non-WTO treaties – may give States a right to pursue certain objectives which can be understood as representing exemptions or permissions under a WTO agreement. If such rights cannot be implemented because of the requirements of this WTO agreement, there might be conflicts between the treaties, implying that they cannot be complied with at the same time.10 The relevance of this approach applies to the relationship between TRIPS and the Covenant. The latter contains relatively few commands or prohibitions in the form of
of instances in which the Note would apply. Whereas ‘inconsistency’ was open to a broad interpretation, ‘conflict’ referred only to irreconcilable differences […] so that the provisions of the two agreements were mutually exclusive and could not both be enforced at the same time” (Indonesia – Automobiles Panel report, (WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R), paragraph 5.240). Guatemala – Cement, Appellate Body report (WT/DS60/AB/R), paragraph 65. Indonesia – Automobiles (WT/DS54/R, WT/DS55/R, WT/DS59/R and WT/DS64/R), paragraph 14.99. Pauwelyn 2003c, p. 190. Ibid, p. 176, footnote 45. Ibid, p. 179, distinguishes between four situations of conflict, focusing on obligations, as well as rights. Four concepts are identified: command (‘shall’), prohibition (‘shall not’), permission (‘may’) and exemption (‘need not’), where the two former represent obligations and the two latter represent rights for States. The analysis will in Chapter 12.2 and 12.3 also take into account the ‘rights’ of States. There is a right of States to make effective use of the legitimate exceptions in a treaty. TRIPS gives possibilities to apply the flexibility provisions, as is clear from the term ‘may’ in Article 27.2, 27.3, 30 and 31(b). The flexibility provisions in the Covenant are found only in Article 4, which also applies the term ‘may’, but as was found in Chapter 7.1, this Article has a limited application. 10 More specifically, a command (‘shall’) under one treaty might conflict with an exemption (‘need not’) under another treaty, and a prohibition (‘shall not’) under one treaty might conflict with a permission (‘may’) under another treaty (see ibid).
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‘shall’ and ‘shall not’,11 but does state that the State parties ‘shall take measures’ without directing the State to any specific actions. There is a presumption against conflict between treaties.12 The WTO Panel has reminded of the “…general international law presumption against conflict and the fact that under public international law a conflict exist in the narrow situation of mutually exclusive obligations for provisions that cover the same type of subject matter.”13 11.1.2
Principles for Determining Conflict between Treaties
In order to determine a conflict, one must consider whether obligations under one treaty prevent the State party from complying with its obligations under another. This study applies the basic approach that the national implementation of one treaty makes it impossible to implement another (mutually exclusive obligations). As stated by an author: “A conflict in the strict sense of direct incompatibility arises only where a party to the two treaties cannot simultaneously comply with its obligations under both treaties.”14 This understanding of what constitutes conflict has been challenged in some studies.15 This study confirms the understanding that conflict between two treaties arises when obligations imposed by the treaties cannot be complied with simultaneously. It must, however, be acknowledged that States have a certain margin of discretion in complying with the provisions, and there is hence a distinction between mandatory and discretionary legislation.16 Shall indicates strong legal obligations, while the terms should, could or may imply weaker obligations. 12 Jennings and Watts 1996, p. 1275. But see Karl 1992, p. 472 and Kelsen 1991, p. 125. 13 Indonesia – Automobiles (WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R), paragraph 14.49. 14 Jenks 1953, p. 426. 15 In addition to Pauwelyn 2003c, see Helfer 2004, p. 76, stating that a conflict does not arise under the technical, narrow approach if one treaty ‘does not compel a State to act in certain way’, while another treaty ‘prohibits the very same action’; Neumann 2002, pp. 60-63, focusing on collisions between Erlaubnis and Verbot (not only on two Verbots); Kelly 2001, p. 699, focusing on ‘conflicting directives on behavior’; and Czaplinsky and Danilenko 1990, p. 13, addressing conflicts at the stage of application, in which a treaty violates the rights – or seriously infringes the indispensable provisions – of another treaty. 16 On this distinction, see United States – Anti-Dumping Act of 1916 (WT/DS136/AB/R) paragraphs 84 through 102. See also United States – Tobacco (BISD 41S/131) paragraph 118: “…legislation which mandated action inconsistent with the General Agreement could be challenged as such, whereas legislation which merely gave the discretion to the executive authority of a contracting party to act inconsistently with the General Agreement could not be challenged as such.” No less than five previous reports are referred to in a footnote. See also the Dispute Settlement System Training Module 5.5 (The possibility of challenging laws “as such”): “Only legislation that mandates a violation of WTO obligations can be found as such to be inconsistent with those obligations. By contrast, legislation that merely gives discretion to the executive authority of a Member to act inconsistently with the WTO Agreement cannot be challenged as such. In such a case, only the actual application of such legislation in a 11
Solving Conflicts between Treaties, Identifying the Nature of Treaties
In order to avoid conflicts between the treaties, the States should be careful to exercise all their possible permissions and exemptions. This applies particularly to the implementation of TRIPS, implying that the State must make use of the flexibilities of the treaty – in accordance with its provisions. The main challenge is to identify ways of implementing treaties which do not conflict with the obligations under other treaties. The responsibility to identify a proper balancing between treaties lies with the State parties to the treaties, as well as bodies responsible for monitoring the implementation of treaties. An author, addressing specifically the relationship between the WTO and human rights, argues that “…for a conflict to exist between a WTO provision and a provision of a human rights treaty, evidence must be put forward that the WTO mandates or prohibits an action that a human rights treaty conversely prohibits or mandates. […] In fact, one would have to be able to demonstrate that compliance with the WTO necessitates violation of a human rights treaty.”17 Marceau finds that this understanding of conflict is in line with the understanding of conflict applied by the Appellate Body, but recognizes that there are other concepts of conflict between norms of international law. The WTO’s dispute settlement organs apply a rather strict, but well established understanding of conflict, though this understanding has been criticized.18 The Committee on Economic, Social and Cultural Rights has not developed an explicit understanding of treaty conflict, unlike the approach that has developed of identifying potential violations with the recognized rights of the Covenant.19 The Committee’s understanding of violations of the Covenant does not focus on the specific provisions of treaties,20 but rather on whether human rights obligations are sufficiently taken into account when agreements are entered into, and the failure to do so is found to represent a ‘violation’. It was found in Chapter 10.1.2 that this approach of identifying ‘violations’ is imprecise. In order to analyze treaty conflict, therefore, the Committee should more cautiously identify whether obligations under two treaties cannot be complied with simultaneously.
17 18 19 20
manner that is inconsistent with the WTO Agreement is subject to challenge.” <www.wto. org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c5s5p1_e.htm>. In the Lotus case, the Permanent Court of International Justice noted the “…discretion left to States by international law…” PCIJ Series A, No. 10, p. 19. Marceau 2002, p. 792; emphasis in original. Helfer 2004, p. 76, finds this to be a “…narrow, technical approach to treaty conflict.” He also finds that this understanding implies that there is no violation of other treaty obligations even if implementing TRIPS “…may narrow the discretion or options available to states.” Primarily based on the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights; reprinted in Eide et al. (eds.), Annex 4. See General Comment No. 12, paragraph 19 and General Comment No. 14, paragraphs 50 through 52.
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11.1.3
Conflict between Treaties on the Level of Taking Measures
Both the TRIPS Agreement and the International Covenant on Economic, Social and Cultural Rights assert that the States must take active measures to fulfill their treaty obligations.21 Based on the analysis of Parts II and III of this book, a more precise understanding of treaty obligations arising from different treaties must take into account the specific measures prescribed in the different treaties. Three authors, writing specifically on the WTO Agreement and human rights, introduce conflict on the level of measures.22 This approach, which can be considered to contribute to a more detailed analysis of the implementation of treaties, should be considered particularly in the context of this book. There will be a comparison of the obligation ‘shall take measures’ under Article 11.2 of the Covenant with the obligations concerning measures in TRIPS. If a treaty impedes the taking of measures under another treaty, there might be a conflict between the two treaties. Marceau finds that in addition to conflict between treaty provisions per se, a conflict between treaties might also exist if a treaty provision is “…setting out certain measures that the parties to the treaty could/should take to protect a substantive human right…”23 This understanding of conflict is interesting, and it must be asked whether this approach is an additional approach to the understanding of conflict between treaty provisions, as outlined in Chapter 11.1.2 above. Conflict on the level of measures is understood as a situation where the taking of measures as prescribed under one treaty impedes the taking of measures as prescribed by another. Hence, the treaty provisions themselves are not in conflict, but when the treaties are implemented, the measures that a State shall take,24 are not possible to adopt. This raises two questions. First, what is the relationship between this approach of understanding conflict (identifying whether measures prescribed in one treaty are impeded by implementing another) and the more recognized approach of identifying con21 On TRIPS obligations, see Article 1.1 (‘shall give effect to the provisions’), Article 41.1 (‘shall ensure that enforcement procedures are available’), and Article 50 (‘shall have the authority to order prompt and effective provisional measures’) as well as the specific requirements concerning the specific category of intellectual property in Part II of the Agreement. The obligations under the Covenant are less direct, but Article 2.1 asserts that the States ‘undertake to take steps for the full realization of the rights through all appropriate means’. Concerning the term ‘progressive realization’ in Article 2.1, the non-binding General Comment No. 3 states that: “…the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.” (UN Doc E/1991/23, pp. 83-87, paragraph 9 – emphasis added). 22 Marceau 2001b, particularly p. 97; Pauwelyn 2003d, in particular pp. 1023-1025 (referring to a situation in which a “…measure is prohibited under WTO rules, but prescribed or explicitly permitted under the self-standing provisions of another treaty…”); and Petersmann 2003, in particular pp. 255-256. 23 Marceau 2001b, p. 97. 24 The term ‘shall take’ is from Article 11.2 of the Covenant.
Solving Conflicts between Treaties, Identifying the Nature of Treaties
flict between treaties (conflict resulting from the fact that obligations under two treaties cannot be complied with at the same time) as outlined in Chapter 11.1.2 above? Independent of whether the first category or the second category of conflict is emphasized, any identification of conflict should only be made after a most careful examination of all relevant provisions and interpretative materials,25 including the provisions identifying more general principles or obligations. Applied to the second category, any conflict between two treaties on the level of measures therefore requires a very careful analysis as to whether the measures recognized in one treaty are impeded as a result of the obligation to undertake measures prescribed in another. This second approach emphasizes interpretation based on treaty terms, but also assists in identifying under which conditions the implementation of one treaty impacts on the approriate implementation of another treaty. Second, what is the relationship between this approach of understanding conflicts on the level of measures, and the obligations of result and obligations of conduct, as introduced in Chapter 4.2.1, and applied in Chapters 5 and 6?26 It cannot be assumed that only obligations of conduct relate to conflicts on the level of measures. As an example, Article 11.2 of the Covenant, as seen in light of Article 2.1, will highlight that obligations of conduct and obligations of result are interrelated. Article 11.2 of the Covenant asserts that the State parties ‘shall take the measures which are needed’,27 which emphasizes obligations on the level of conduct. At the same time, Article 11.2 establishes an obligation of result,28 namely the right to be free from hunger. Hence, if it is impossible to adopt a measure which is prescribed by one treaty, this might indicate that a conflict on the level of measures can relate to both obligations of result and obligations of conduct. As an initial finding, this second category of conflict (impeding measures) is particularly interesting in the context of analyzing human rights. The Covenant on Economic, Social and Cultural Rights does not – except from the non-discrimination provisions 25 Note in this context the Appellate Body’s confirmation of the principle that the interpretation must give meaning and effect of all terms of the treaty; see US - Gasoline (WT/DS2/AB/ R), Chapter IV, p. 23. 26 A distinction can be made between treaties in which the measures are compulsory and treaties in which the measures are listed, but still only recommended. 27 The term ‘shall take’ from Article 11.2 implies that this paragraph has a particularly strong wording compared to the other articles of the Covenant. Refer in this context to Article 12.2 on steps to be taken for the full realization of the right to health. This paragraph reads: “The steps to be taken […] shall include those necessary for…” This is weaker than the wording “…shall take the measures…[…] which are needed” of Article 11.2. Note also the TRIPS Agreement, which applies the term ‘may’ in several of the articles in Section 5 of Part II (Articles 27.2, 27.3, 30 and 31(b)), and applies the term ‘shall’ in several of the articles of Part III. 28 TRIPS, on the other hand, emphasizes the specific measures and legal institutional provisions that the State must have in place in order to be in compliance with TRIPS. Hence, the TRIPS Agreement does not establish a specific obligation of result, except from the general compliance with the Agreement and the enjoyment of the recognized rights recognized by TRIPS.
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of Articles 2.2 and 3, as well as Article 5 – set out what the treaty prohibits. The first category of conflict applies when one treaty obligates what another prohibits. This implies that it might be difficult to identify the first category of conflict between the Covenant and other treaties. At the same time, while the taking of measures prescribed in Article 11.2(a) must be considered to be an obligation, it must be emphasized that the Covenant, unlike TRIPS, does not instruct the States regarding how these measures shall be taken. This implies that the second category of treaty conflict, emphasizing impeding measures, is relevant. The merits of this category is emphasized by Helfer, finding that a conflict, traditionally understood, does not arise under the technical, narrow approach if one treaty “…does not compel a State to act in a certain way…”29 This applies more to the Covenant than to TRIPS, as the Covenant does not compel the State parties to act in a certain way, except regarding discrimination. Therefore, this study will apply both the first and the second category of conflicts in the analysis in Chapter 12.2 below. It is acknowledged that Helfer’s perspective comes close to the second category, as he finds that treaty conflict could arise if one treaty “…may narrow the discretion or options available to states.”30 This understanding of conflict, however, is rather expansive. This study will emphasize the terms of the respective treaties, and not whether the WTO treaties have narrowed the discretion or options available to States under other treaties.31 The main question remains: under what conditions are the available discretions and options under one treaty limited to such an extent that it is possible to identify conflict between the treaties? It seems that this concern is taken care of in this analysis, as the focus of the analysis in this book is whether the measures prescribed by one treaty are impeded as a result of the taking of measures under another treaty. Therefore, in the analysis of the relationship between the two treaties, it is important to consider whether either of the two treaties prevent any State from freely adopting the measures considered necessary to achieve the full realization of the recognized rights under the other treaty. This applies particularly to the fulfillment of the Covenant, which shall be done ‘by all appropriate means’ and ‘to the maximum of its available resources’. It is therefore found that the second category of conflict between treaties (conflict on the level of in29 Helfer 2004, p. 76. 30 Ibid. 31 Economic effects have been central in the interpretation of TRIPS Article 30. When analyzing as to whether the Canadian Patents Act was in compliance with the requirements of the TRIPS Agreement, the Panel emphasized the following in the context of respecting the legitimate interests of the patent holder, in accordance with Article 30 of TRIPS Agreement: “The issue was whether patent owners could claim a ‘legitimate interest’ in the economic benefits that could be derived from such an additional period of de facto market exclusivity.” See WT/DS114/R (Canada – Pharmaceuticals) paragraph 7.61. Note that the Panel concluded in paragraph 7.82 that the interests were “…neither so compelling nor so widely recognized that it could be regarded as a ‘legitimate interest’ within the meaning of Article 30 of the TRIPS Agreement.” It is therefore seen that economic effects of the exercise of rights – or the limitations on the exercise of these rights – shall be taken into account in an interpretation of a treaty, assessing the compliance with the provisions of this treaty.
Solving Conflicts between Treaties, Identifying the Nature of Treaties
consistent measures) can be applied as an addition to the first category (conflict on the level of inconsistent obligations). 11.2
Established Principles for Determining which Treaty Prevails in Situations of Conflict Between Treaties
11.2.1
Introduction
In order to avoid conflict in international law, the coordination ex ante should always be preferred. This implies that the treaties should be drafted in such a way that conflicts with other treaties will not occur. This can be done either by referring to another treaty provision, or incorporating the conditions of this provision; alternatively by explicitly stating that a treaty provision derogates from, or is an exception to another treaty provision.32 A brief presentation of the principles for solving conflicts ex post between international treaties through interpretation follows. Determining which of two treaties prevails in a situation of conflict between treaties must be based on the general rules of international law as well as the nature of the treaties (see Chapter 11.3 below). Many treaties contain provisions stating how this particular treaty shall relate to other treaties.33 The requirement for a conflict to be established is that there is overlap between the treaty provisions both ratione materiae (same subject matter; see the Vienna Convention on the Law of Treaties Article 30.2), ratione personae (same State parties; see the Vienna Convention on the Law of Treaties Article 30.3) and ratione temporis (same time). The first requirement will be examined further. Chapter 11.2.2 will analyze whether the two treaties, the Covenant and TRIPS, can be said to regulate the same ‘subject matter’.34 The two latter requirements, on the other hand, are unproblematic, as treaty conflicts only can arise for the States which are parties to two treaties, when these treaties are in force.
32 Pauwelyn 2003c, p. 237. 33 An example is the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), which states in Article 1.1 that its objectives are “…in harmony with the Convention on Biological Diversity [CBD]…” See also Article 22.1 of the CBD, reading: “The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.” This implies certain principles for how the ITPGRFA and the CBD shall be interpreted, in accordance with Article 30.2 of the Vienna Convention on the Law of Treaties (“When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.”). Conversely, the subject matter regulated by the two treaties cannot generally be presumed to be the same, and therefore the principle of lex specialis might apply, insofar as the issue in question is related to plant genetic resources, which are regulated in more detail in the ITPGRFA than in the CBD. 34 UPOV is implicitly recognized in TRIPS, and will not be addressed separately.
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In Chapter 11.2.3, the three recognized approaches for solving treaty conflict, lex superior, lex posterior and lex specialis, will be analyzed.35 The analysis is limited to the main theme of this book, on the relationship between the Covenant and the TRIPS Agreement, identifying which of the two treaties prevail in situations of conflict. 11.2.2
Same Subject Matter?
Before initiating any analysis on the relationsip between the Covenant and TRIPS, there must be an assessment as to whether provisions of the two treaties in fact ‘relate to the same subject matter’.36 If it is found that the TRIPS Agreement and the recognition of the right to food in Article 11 of the Covenant, simply relate to different subject matter, the relevant articles of the Vienna Convention do not apply. TRIPS regulates intellectual property protection, including patent protection for new, technical knowledge applied on genetic resources. The International Covenant on Economic, Social and Cultural Rights regulates human rights protection, including means to ensure improved methods of production of food as well as access to the food which is essential for the enjoyment of the right to food, in Article 11.2. Moreover, Article 15.1 recognizes the right of everyone to enjoy the benefits of scientific progress – including the results of food research – and its application; and the right of the inventor to enjoy the moral and material interests resulting from his scientific production, potentially including food production. Common for these provisions is that they relate to ‘improved food’. Initially, it was found that while the two treaties relate to the subject matter ‘improved food’, the treaties regulate the subject matter differently. In the context of TRIPS, the most important aspect of the subject matter is the efforts preceeding the ‘improved food’, namely the new technical knowledge applied on genetic resources,37 giving rise to rights in accordance with Articles 27 and 28 of TRIPS. TRIPS thus regulates exclusive rights over new and applicable inventions. In the context of the Covenant, the most important aspect of the subject matter is the efforts following from the ‘improved food’, namely whether and how such food is 35 A fourth category of conflict, described by Pauwelyn 2003c, pp. 418-436, is a situation in which both norms are ‘equal’. He finds that the only long-term solution is to “…renegotiate either norm as to end the conflict” (ibid, p. 434). This fourth category will not be considered in this book. 36 On the distinction between the provisions of a treaty and the treaty as such, see Wolfrum and Matz 2003 pp. 149-150. 37 In Chapter 2.3.3, it was found that “… intellectual property rights are constituted through improvement of an immaterial subject relating to a material object. […] This knowledge must relate to the genetic composition of the plant (genotype), and the protection will apply to all physical plants containing this genetic composition (phenotype).” It is seen that it is specific and applicable knowledge or intellectual effort which constitutes the basis from which the intellectual property right is derived. The right extends to the objects to which this knowledge or intellectual effort is related. Food items production based on technology described in the patent claim and recognized through the grant of the patent are therefore also falling within the scope of this exclusive right.
Solving Conflicts between Treaties, Identifying the Nature of Treaties
made available in a way that improves the right to food, particularly for the most food insecure and vulnerable. The Covenant thus regulates how food is made available at sufficient quantities and at affordable prices. More generally, the phrase ‘same subject matter’ can also refer to the issues that are regulated by the treaties, and the means or measures by which these issues are regulated. Food production is regulated by both treaties which are central in this book. It seems therefore reasonable to conclude that while there are obvious differences between the subject matter in the human rights system (human beings) and the patent and plant variety protection system (protectable inventions or plant varieties), the rights recognized in the two systems both relate to physical food or improved food. The treaties do not need to regulate this subject matter in an identical way.38 While it is not correct to state that the subject matter of the two systems is ‘the same’, the two treaties relate to the same subject matter. Both the right to food and the relevant patent and plant variety protection could, in effect, depend upon the effective control over this improved food. Therefore, the ‘same subject matter’ requirement must be considered to be met. 11.2.3
Solving Conflict between Treaties if Harmonious Interpretation Is Not Possible
This section is on principles for solving conflicts. It must be emphasized that the analysis is still on principles, and that the application of the principles to the facts will be done in Chapter 12. At this stage of the analysis, two categories of conflict have been found which are applicable (one treaty prohibits what another treaty mandates; and measures prescribed by one treaty are impeded as a result of the taking of measures under another treaty) and that the two treaties analyzed relate to the same subject matter, although regulating this subject matter in a seemingly opposite manner (physical and economical access versus exclusive rights). The following three principles for determining which treaty prevails apply only if a conflict in the applicable law between treaties is in fact identified. To which extent these principles will solve potential conflicts between the two treaties will be analyzed. Lex superiori: This principle is seldom applied in conflicts between international treaties. There is generally no hierarchy between international treaties. One notable exeption must be analyzed, namely the distinctions between a jus cogens39 norm and other
38 See also Pauwelyn 2003c, pp. 364-365, based on the fact that conflict can only be identified if there is overlap between treaties ratione materiae, as well as ratione temporis and ratione personae. 39 Jus cogens rules are also termed peremptory norms, referring to norms from which no derogation is permitted, in accordance with the Vienna Convention on the Law of Treaties, Articles 53 and 64. Prohibition against slavery, torture, aggression, crimes against humanity, apartheid crimes and racial discrimination crimes are generally considered to belong to jus cogens norms. The right of self determination falls within the scope of the prohibition against aggression.
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norms under international law. A treaty is void if one of its provisions conflicts with a jus cogens right. Of particular relevance in the context of jus cogens norms is whether the human rights recognized by the International Covenant on Economic, Social and Cultural Rights can also give rise to jus cogens norms. As racial discrimination is a jus cogens norm, the prohibition of discrimination based on race under Article 2.2 can be considered as constituting a jus cogens norm. Also the right of self determination, as recognized in Article 1, is generally accepted as a jus cogens norm, at least the elements of self determination relating to breaches of territorial integrity. With regard to the rights analyzed in this book, the initial observation is that catalogues of jus cogens norms do not include social human rights, such as the right to food. In principle, therefore, jus cogens norms do not apply to the human rights recognized in Part III of the Covenant. Conversely, elements of these rights might be included in other jus cogens norms.40 There is a high threshold for identifying certain treaty provisions as jus cogens norms, and the right to food is not found to represent a jus cogens norm. In the context of lex superior, the Charter of the United Nations is also relevant. Of particular relevance is Article 103 of the UN Charter, which reads: In the event of a conflict between the obligation of the Member of the United Nations under the present Charter, and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
The problem with this provision is that it is difficult to identify the specific obligations imposed by the Charter. It is not evident what the phrase ‘obligations under the present Charter’ actually implies.41 We will analyze whether this provision implies that every provision in the Charter which can be understood to constitute an obligation is above any other non-UN provision, independent of the level of generality of both the provision in the Charter and of the provision in a non-UN treaty. The starting point is the explicit recognition of human rights in the UN Charter. As shown in Chapter 3.2.2, respect for human rights is recognized in Articles 1.3 and 55(c) of the UN Charter. Human Rights are also referred to in Article 13.1(b), in which the General Assembly is mandated 40 As an example, the right to self determination, which has a jus cogens nature primarily with regard to the political dimensions of the right to self determination, can be relevant. Article 1.2 includes a prohibition against deprivation of means of subsistence. As food is a means of subsistence, any treaty which allows for the deliberate deprivation of capacities to produce food, through interference in the propagation of plants, contamination or other means, can be found to be void, as it violates the right to self determination. Skogly 2002, p. 22 finds that all States are “…under an obligation not to deliberately starve people by removing their food.” To remove food must be seen as a deprivation of means of subsistence. 41 In Lockerbie (ICJ Reports 1992, paragraph 39, p. 15), the ICJ found that: ”…in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement…” (emphasis added – see also paragraph 37, p. 14). In the same paragraph, ICJ confirmed that UN members “…are obliged to accept and carry out the decision of the Security Council in accordance with Article 25 of the Charter…”
Solving Conflicts between Treaties, Identifying the Nature of Treaties
to initiate studies and make recommendations for the purpose of assisting in the realization of human rights, as well as in Articles 62.2 and 68, in which the Economic and Social Council is mandated, respectively, to make recommendations and to set up commissions for the promotion of human rights. Based on both the explicit recognition of human rights in the Charter itself, as well as the subsequent adoption of conventions, commissions and other mechanisms, based on Articles 13.1(b) and 68, it must be asked whether human rights, as derived from the UN Charter, shall always prevail in situations of conflict with obligations under other international agreements. This recognition of human rights in the ‘world constitution’ is confirmed by the International Court of Justice.42 There are no rulings by any international court based on an application of Article 103 of the UN Charter in a dispute between human rights and other international norms not recognized by the Charter. There can be no doubt that human rights per se are explicitly recognized in the Charter, and that the members of the UN shall work toward the promotion and observance of, as well as the respect for, human rights. Furthermore, the paragraphs in which the relevant provisions appear address the wider context of solving problems on a national and international level, implying that treaties providing for international economic cooperation, as well as treaties promoting and protecting economic, social and cultural rights, are also included.43 Based on the wording of the Charter, however, it must be analyzed whether this recognition of human rights merely implies that the UN system has a mandate relating to promotion of human rights, or whether it also implies that substantial obligations on States are imposed by the UN Charter. If one choses the latter understanding, individual and specific rights, both those generally recognized at the time of the drafting of the Charter, and those which have been subsequently recognized, are within the scope of the UN Charter. If all human rights are explicitly recognized as falling within the scope of the UN Charter, and as Article 103 states that obligations under the Charter shall prevail over obligations of any other international agreement, this point is important. The provisions of the UN Charter addressing human rights refer specifically to the United Nations and its bodies (General Assembly and Economic and Social Council). The fact that there are no references to the obligation of States per se to promote and respect human rights, cannot be interpreted to imply that the United Nations member States are under no obligation with regard to human rights. Two authors of a widely recognized book in international law hold that the Charter also constitutes legal obliga42 Namibia (South West Africa) ICJ Report 1971, p. 46, paragraph 92. 43 Article 55 of the Charter reads (extracts): …the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational co- operation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
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tions for States, but they acknowledge that there are several scholars who disagree with this.44 As an argument against finding that the Charter imposes obligations upon States, it must be emphasized that the UN Charter primarily addresses the UN system. At the same time, it is reasonable to state that in order for the United Nations to promote human rights, which is stated as one of its purposes, the States are under an obligation to observe this purpose in their own practice, and work toward the fulfillment of this purpose. Concerning the legal effect of the Charter provisions relating to human rights, the national courts have “…differed markedly in their conclusions.”45 Some courts’ decisions made in 1947, considered that the provisions of the Charter are relevant in the sense that they form part of the public policy of the State as a signatory of the Charter, even if the provisions of the Charter were not considered to have binding effect.46 It is therefore found that there is no general agreement regarding the precise nature of the human rights obligation imposed by the UN Charter. Moreover, while the many references to human rights in the Charter should be noted, there is no explicit indication that these should stand out from the other areas of cooperation that are mentioned in the Charter, but the fact that human rights is recognized in Article 1.3 as one of the purposes of the UN, must be acknowledged. At the same time, “[t]he UN Charter does not resolve the question of hierarchy of law, or put differently, whether human rights law has primacy over other domains of international law.”47 One example will be provided. A potential consequence of applying Article 103 without limitations is that Article 55(a), stating, inter alia, that the United Nations shall promote full employment, implies that international treaties which address empolyment issues, directly or indirectly, should prevail over all other agreements. Several of the economic agreements which States have entered into might negatively affect this obligation to promote full employment – at least in the short term.48 There is no doubt that these economic agreements are generally observed and respected – despite the fact that obligations relating to full employment of the Charter can be negatively affected. While it is not possible, based on a reasonable understanding of the treaty, that everything mentioned in the Charter shall have a status superior to any subsequent specific treaty negotiated in any non-UN body, Article 103 is confirmed in two treaties on treaty law: The Vienna Convention on the Law of Treaties49 and The Vienna Convention 44 Jennings and Watts 1992, p. 989, note 13. 45 Ibid, p. 990. 46 Ibid, p. 991. This is further elaborated upon: “The members of the United Nations are under at least a moral – and, however imperfect, a legal – duty to use their best efforts, either by agreement or, whenever possible, by enlightened action of their own judicial and other authorities, to act in support of a crucial purpose of the Charter” (ibid, p. 989). 47 See Alvarez 2001, p. 9. 48 The WTO Agreement, bilateral trade agreements and agreements on economic restructuring are examples. 49 Article 30 concerns successive treaties relating to the same subject matter. Article 30.1 reads: “Subject to Article 103 of the Charter of the United Nations, the rights and obligations of State
Solving Conflicts between Treaties, Identifying the Nature of Treaties
on the Law of Treaties Between States and International Organisations or Between International Organisations.50 Moreover, the Charter is first and foremost a Constitution of the United Nations, establishing the UN as the dominant institution of all nations, identifying the organization and purposes of the UN. Furthermore, the wording of the Charter falls short of meeting the requirements that human rights treaties must fulfill, namely those establishing clear corresponding obligations. The Charter does not contain any specific obligations regarding human rights. The terms applied in Articles 1.3 and 55 (‘promote’, ‘respect’ and ‘observe’ (the latter is only applied in Article 55.c)) are relatively weak, and confirm that that the UN system has a mandate relating to promotion of human rights, more than imposing obligations upon individual States. Therefore, a distinction can be made between human rights giving rise to jus cogens norms on the one hand, and ‘ordinary’ human rights, on the other.51 There is, however, nothing in the UN Charther which makes any distinction between human rights. In conclusion, therefore, it is fair to state that the UN Charter is difficult to apply for solving potential conflicts between a UN human rights treaty and a WTO agreement. Lex posterior: The lex posterior principle states that the most recent expression of State obligations in the form of a treaty (‘legislative intent’52) prevails over previous treaties. The Vienna Convention on the Law of Treaties, Article 30 regulates such situations. In addition to the requirement that the treaties must relate to the same subject matter, 53 there are two other basic preconditions which must be fulfilled for Article 30 to apply. This is the requirement that the treaties must be successive and the requirement that the the treaties must apply to the same treaty parties (ratione personae). The main rule is that in application of successive treaties relating to the same subject matter, the treaty that has been adopted more recently shall prevail in the situation of conflict between the treaties. It was found that the two treaties studied do relate to the same subject matter. The two treaties, however, cannot be considered to be successive, parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs.” 50 This treaty was adopted in 1986. It has not entered into force. Article 30.6 reads: “The preceding paragraphs are without prejudice to the fact that, in the event of a conflict between obligations under the Charter of the United Nations and obligations under a treaty, the obligations under the Charter shall prevail.” 51 Marceau 2002, p. 798, says that the understanding that the UN Charter Articles 55 and 56 cover “…all human rights (and not only jus cogens) […] is quite expansive.” She refers to a report on WTO and human rights by the Fédération Internationale des Ligues des Droits de l’Homme (FIDH). 52 The ‘legislative intent’ is most appropriately expressed at the time of the adoption of the treaty. See UN 1970, p. 253 (Expert Consultant from the ILC, Sir Humphrey Waldock): “…that intention, as expressed in the later instrument, should therefore be taken as intended to prevail over the intention expressed in the earlier instrument. That being so, it was inevitable that the date of adoption should be the relevant one.” 53 Pauwelyn 2003c, p. 364: “If there is a conflict, the two treaties necessarily relate to the same subject matter.”
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based on an understanding of the term successive. ‘Successive’ means “following one another” or “following closely”.54 As the two treaties are not successive, the lex posterior principle does not apply. It is therefore found that the lex posterior principle does not apply in the solving of potential conflicts between the Covenant and TRIPS. Lex specialis: This principle is not recognized in the Vienna Convention on the Law of Treaties, nor is it found in other international treaties. The lex specialis principle is, however, generally considered to be the third principle for determining which treaty prevails in a situation of a conflict between the treaties. The ICJ has applied the lex specialis principle.55 The principle is, moreover, included in the International Law Commission Draft Articles on State Responsibility.56 Article 55 of the Draft Rules reads: These articles does not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.
While Article 55 is specifically related to wrongful acts implying international responsibility, the general principle is relevant. The principle of lex specialis in public international law states that if all parties to a treaty conclude a more specialized treaty, the provisions of this latter treaty prevail over those of the more general treaty, owing to the fact that they reflect more precisely the consent or expression of will of the relevant State parties.57 It is not always obvious which of two treaties is more special of the two. Both the subject matter under consideration, which legal rules that are best at solving the matter, and which body is mandated to answer the question,58 could impact on the finding of which treaty is lex specialis. The concrete application of the principle of lex specialis in order to solve conflicts in the applicable law is still uncertain. The principle is recognized by the WTO Secretariat, but this does not imply that such understanding is approved by the WTO member 54 Oxford New Dictionary of English 2001. 55 Ambieltos, ICJ Report 1952, p. 44 and Gabcikovo-Nagymaros, ICJ Report 1997, p. 76, paragraph 132. 56 The proposed Articles from the International Law Commission, presented for the United Nations in 2001 (United Nations 2001a, A/56/2002 Supplement No. 10, General Assembly Official Record), are the result of several decades of discussion in the ILC. The draft does not have any legal status, but presents a contemporary understanding for the interpretation of public international law, written by some of the most prominent experts of international law. The Draft Articles presented by the ILC deal only with remedies where an internationally wrongful act has been committed. 57 Pauwelyn 2003c, p. 387. 58 Marceau 2002, p. 761, states that it is “...possible to envisage that a human rights forum would reach a conclusion that a measure (that is also (part of) a WTO measure) is inconsistent with a human rights treaty, while the WTO adjudicating body would conclude that the same measure is consistent with the WTO treaty.”
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States. The WTO Secretariat writes: “According to a widely held view in the CTE,59 trade measures that parties to a multilateral environmental treaty have agreed, could be regarded as ‘lex specialis’, prevailing over WTO provisions. They therefore ought not to give rise to legal problems in the WTO – even if the agreed measures are inconsistent with WTO rules. However, this is not a definitive interpretation, and numerous uncertainties remain.”60 As stated by the WTO secretariat, this is not a ‘definitive interpretation’, and a view expressed by a secretariat cannot be considered as an authoritative interpretation. Nevertheless, this acknowledgement of a ‘widely held view’ by WTO member States regarding environmental law as lex specialis in relation to WTO law, must be noted. The lex specialis principle is generally recognized as one of three principles for solving conflict between two rules of international law. The concrete application of this principle, however, is restricted by the limited jurisdiction of most international bodies which are mandated to monitor the implementation of and adopt interpretation of treaties, as this mandate does not extend to apply to other treaties. Therefore, this principle should be applied with caution.61 Only the ICJ is formally mandated to consider the relationship between two treaties which are allegedly incompatible. 11.3
Nature of Treaties
11.3.1
Introduction
It has been found that the established means for solving conflicts between treaties are not necessarily applicable in order to determine which of the two treaties, the Covenant or the TRIPS Agreement, prevail in the situation of conflict. Moreover, it is generally accepted that there is no hierarchy between treaties, but this position can also be more nuanced. At the same time, there is general acceptance that the nature of human rights treaties, including the interests protected by such treaties, implies that these treaties must be given considerable weight. In other words, somewhere between the jus cogens norms – making void all treaties which include provisions conflicting with such norms – and the basic assumption of lack of hierarchy in international law, there might be certain approaches which merit further attention.62
59 Committee on Trade and Environment. 60 WTO Secretariat briefing: Environment: CTE Agenda Part 1: CTE on: trade rules, environmental agreements and disputes. This briefing does not have any legal status. 61 Pauwelyn 2003c, concludes that only in case the lex posterior principle does not apply should there be a recourse to lex specialis: “Even if an earlier treaty is lex specialis vis-à-vis the latest expression [of State intent], this latest expression should prevail” (ibid, p. 438, emphasis added). 62 As will be clearer below, the term ‘principle’ is applied with regard to ‘obligations erga omnes’, as this is an established legal principles, while the term ‘approach’ is applied with regard to the ‘multilateral obligations’ as this is not in the same manner an established legal principle.
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Two legal approaches will be analyzed in order to identify whether they are applicable in the interpretation of the TRIPS Agreement and the Covenant: ‘obligations erga omnes’ (implying that all States have a legal interest) and ‘multilateral obligations’ (implying that treaties cannot be amended). The obligations erga omnes principle is of a more procedural nature, but is recognized by the ICJ. The multilateral obligations approach is of a more substantive nature, but is only recently introduced in the academic literature. The obligations erga omnes principle and multilateral obligations approach are different from jus cogens norms, which is a more restrictive category.63 The existence of jus cogens norms implies that all treaties which are in conflict with this norm become void.64 As shown in Chapter 11.2.3 above, jus cogens norms indicate a lex superiori status to treaties containing such norms. It is challenging to analyze whether treaties which are giving rise to obligations erga omnes or multilateral obligations have a weight which elevates them above other treaties which do not give rise to such obligations. Obligations erga omnes and multilateral obligations can, nevertheless, be considered in the context of interpreting treaties, as it is implicitly recognized that treaties in which they are found, are of a particular nature, distinguishing these treaties from other treaties. Initially, the relationship between the ‘nature’ and the ‘weight’ of treaties must be examined. Treaties of a particular nature, seeking to protect ‘vital matters’,65 must be considered to have a certain weight. The analysis below will be on a principal level, but the findings will also be applied specifically to the Covenant and TRIPS. 11.3.2
Obligations Erga Omnes
Four elements will be included in this section. First, an analysis of the requirements for establishing obligations erga omnes. Second, an assessment of obligations erga omnes in the context of human rights, particularly the right to food. Third, a similar assessment of obligations erga omnes in the context of TRIPS, relating to the substantive standards established. Fourth, the legal effects of identifying obligations erga omnes. Requirements for establishing obligations erga omnes: The Barcelona Traction case introduced the principle of obligations erga omnes.66 This principle recognizes obligations 63 The difference between the two must not be overemphasized, as all jus cogens norms give rise to obligations erga omnes, and that obligations erga omnes are derived from jus cogens (Simma 1997, p. 300). There can, however, be norms which only give rise to obligations erga omnes, not constituting jus cogens. 64 Articles 53 and 64 of the Vienna Convention on the Law of Treaties. 65 Yearbook of the International Law Commission 1966 Vol. II, p. 217, paragraph 13. 66 ICJ Reports 1970, pp. 33-34, paragraphs 33-35. In the Barcelona Traction case, which gave rise to the obligations erga omnes, the issue considered by the ICJ was whether Belgium could bring a claim against Spain, complaining on behalf of Belgian shareholders against general measures introduced by Spain against the Barcelona Traction Company. The question was: “Has a right of Belgium been violated on account of its nationals’ having suffered infringe-
Solving Conflicts between Treaties, Identifying the Nature of Treaties
which are “owed to the international community as a whole, with the consequence that all States in the world have a legal interest in the compliance with the obligation.”67 The ICJ included aggression, genocide, slavery and racial discrimination, as well as “the principles and rules concerning the basic rights of the human person”68 as examples of obligations erga omnes.69 While the act of aggression must be primarily considered as giving rise to erga omnes obligations with regard to other States, the other obligations give rise to obligations erga omnes that apply particularly to human beings.70 Hence, a distinction can be made between obligations erga omnes which seek to protect the interests of other States, and obligations erga omnes which seek to protect human beings directly.71 Below, focus will be on those obligations erga omnes which derive from the basic rights of the human person, and not those obligations which seeks to protect the interests of States. In this context, it must be emphasized that the same ICJ ruling which introduced the obligations erga omnes principle, also states: “…the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality.”72 This premise only repeats the basic idea of human rights protection, namely that it is the State which has the human rights obligations for all persons within its jursidiction,73 and that these obligations cannot be transferred to others. Under which circumstances will the lack of observance and fulfillment of obligations by one State give rise to a legal interest by the international community of States? Until now, the practice of the ICJ or other international courts has not established a firm principle regarding the seriousness of the disrespect of the obligations. It is therefore reasonable to conclude that while the principle of obligations erga omnes is generally accepted, the principle is not sufficiently specified and clear.
67 68 69
70 71 72 73
ments…” (Barcelona Traction, ICJ Reports 1970, pp. 33-34, paragraph 35). This was therefore an issue of diplomatic protection, in which the Belgian capacity to bring such a claim was dependent upon whether such a right existed. UN doc. A/CN.4/507, (United Nations 2000a), paragraph 106 (a). Barcelona Traction, ICJ Reports 1970, p. 33, paragraph 34. In addition to obligations erga omnes, the International Law Commission has introduced another set of obligations, namely obligations erga omnes partes, whose obligations extend only to the other parties of an international treaty, often a regional treaty (‘group of States’), see United Nations 2001a (A/56/Supplement No. 10), General Assembly Official Record, pp. 320-1. Another term is also applied, namely inter omnes partes, see Simma 1997, p. 338. On p. 370, he notes that “the omnes, however, [is] limited in our present context to the circle of the other contracting parties.” As obligations erga omnes are more recognized in international law than obligations erga omnes partes, this analysis will relate to the former. For more detailed examinations of obligations erga omnes, see Gaja 1989, de Hoogh 1991, Tomuschat 2001, pp. 82-84, Frowein 1995, in particular pp. 405-410, Annacker 1994, Simma 1997, in particular pp. 293-301, Seidermann 2001, pp. 123-145, and de Hoogh 1996. Simma 1997, p. 319. Barcelona Traction, ICJ Reports 1970, p. 47, paragraph 94. With the possible exception relating to economic rights for non-nationals in accordance with Article 2.3 in the International Covenant on Economic, Social and Cultural Rights.
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Acknowledging this uncertainty, the present author finds that there are three conditions which must be fulfilled for an obligation erga omnes to apply. First, a State violates its legal obligations. Second, this disrespect of the obligation must take place on a certain scale, in other words in a grave and systematic manner. Third, the consequences of acting in disrespect with its legal obligation are of such a nature that the international community of States has a legal interest in ensuring compliance.74 The most interesting question for the purpose of this study is to identify which obligations that are falling outside the scope of jus cogens norms, which is a restrictive category,75 can nevertheless give rise to obligations erga omnes. This will be analyzed below, in the context of the human right to food as well as TRIPS. Obligations erga omnes and human rights, particularly the right to food: This study does not seek to argue that international human rights law is the only category of international law that gives rise to particular obligations to which all States have an interest.76 74 See UN 2005, p. 225, paragraph 492: ”…obligations erga omnes related to the opposability of the obligations to all States, in particular the right of every State to invoke their violation as a basis for State responsibility.” See also the ILC’s Draft Articles on State Responsibility Article 33.1: “The obligations of the responsible State set out in this Part may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation, and on the circumstances of the breach” (emphasis added). Also Article 48 of the Draft Articles on State Responsibility (‘Invocation of responsibility by a State other than an injured State’) is an obligation erga omes provision. 75 The understanding that obligations erga omnes are close to jus cogens norms, from which no derogation is permitted is expressed by the Special Rapporteur of the ILC (United Nations 2000a, paragraph 106(a). See also Simma 1997, p. 300). This view of what constitutes obligations erga omnes must be questioned, and it is not in conformity with what other authors have written about obligations erga omnes (See United Nations 2000b, p. 40, paragraph 122). 76 The International Law Commission’s Draft Articles on State Responsibility, had deleted the previous references to human rights in the earlier drafts. In the 1996 Draft (UN doc. A/51/10 – United Nations 1996), Article 40.2(e)(iii) (‘Meaning of injured State’) only human rights were specified, and no other reference to a particular system of law is found. In its commentary to Article 40.2(e)(iii), the ILC stated (Yearbook of the ILC 1985, vol. II, p. 27, paragraph 20): “The interests protected by such provisions are not allocatable to a particular State.” The 2001 Draft (United Nations 2001a), did not make any specific references in Articles 42 and 43 (replacing the previous Article 40; see pp. 294-304). These Draft Articles are based on obligations erga omnes (see United Nations 2000b, pp. 38-48) but the deletion might qualify the position that obligations derived from human rights are the only categories of obligations over which all other States have a legal interest. The reference to human rights was deleted in the ILC’s Fourth Report on the Draft Articles on State Responsibility, presented for the UN General Assembly in 2001 as “[i]t singled out human rights for special treatment in vague and overly broad terms and in a way that conflicted or overlapped with other aspects of the definition” (Crawford et al. 2000, p. 666). The lack of explicit references to human rights violations in the Draft Articles on State Responsibility has been criticized by Tomuschat 2001, p. 295.
Solving Conflicts between Treaties, Identifying the Nature of Treaties
The relevant question in this section is whether human rights which are falling outside the scope of jus cogens norms, are falling within the scope of obligations erga omnes. Another distinction can be made between ‘fundamental’ and ‘ordinary’ human rights.77 For the purpose of this study it will be analyzed whether obligations erga omnes apply to the right to food. Among some, there has been a tendency to consider that only civil and political rights are giving rise to obligations erga omnes.78 Moreover, the ICJ position that obligations erga omnes derive from the basic rights of the human person, has been criticized.79 On the one hand, there can be no reason to claim that the international community of States does not have a common legal interest to bring an end to a situation in which there are serious violations of social human rights under which a great number of people suffer. A situation in which segments of the population are directly or indirectly denied access to crucial human rights such as food, so that the right to food is so insufficiently enjoyed to the extent that thousands of lives are threathened, is a concern for all other States. These are basic rights of the human person, to which all States have a legal interest in all other States’ consistent compliance. On the other hand, it can be more difficult to identify the responsibility of the State for the existence of a serious situation of non-fulfillment of social human rights. While a situation of widespread torture and disappearances is clearly falling under a State’s responsibility, a situation of widespread hunger can be the result of several factors, not all of them being under the State’s control. Therefore, the acts of omission or acts of commission must be specifically identified when the international community addresses a hunger situation of a State. Therefore, it seems that obligations erga omnes arise in certain situations of serious violations of economic, social and cultural rights. The legal interest of other States in the fulfillment of obligations must be considered to be more substantial in situations of serious underenjoyment of recognized human rights. As seen in Chapter 5.1.4, the right to be free from hunger is the only substantial human right recognized in the Covenant which is explicitly said to be ‘fundamental’. Moreover, States should always observe all their human rights obligations when implementing measures to promote certain human rights, and apply the principle of ‘the most-favorable provision’.80 In addition to Article 4 of the International Covenant on 77 See Austria v. Italy 1961 p. 140, where the European Human Rights Court pointed to the “…objective character of human rights treaties, being designed rather to protect the fundamental rights of individual human beings from infringements by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves” (emphasis added). 78 “The Inter-American Commission on Human Rights of the Organization of American States, in its Press Communiqué No. 13/93 of 25 May 1993, declared that the obligation to respect and guarantee civil and political rights is an obligation erga omnes” (E/CN.4/Sub.2/1997/27 (Sub-Commission), paragraph 33). 79 Malanczuk 1970, p. 58. 80 On the most-favorable provision (the provision which gives the best protection to the human being), see Sadat-Akhavi 2003, Chapter 7.
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Economic, Social and Cultural Rights, there are other provisions of international human rights treaties. Article 60 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states that: Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.
This article extends to ‘any of the human rights under any other agreement’. The European Convention per se does not extend to the right to food, but the formulation must be interpreted to imply that the article applies generally, and not only to civil and political rights. An author discussing the principle of obligations erga omnes reaches the same conclusion. He admits that international judicial and law-making organs have not been able to fulfill the potential of such obligations, due to reluctance among the States. He continues: “…the doctrine should not be undercut by any tendency to segregate particular ‘basic’ or ‘fundamental’ rights from the full corpus of rights existent under general international law.”81 Moreover, “…it is inappropriate to divide human rights norms into those which entail obligations erga omnes and those which do not…”82 The arguments that human rights is an issue belonging exclusively to the domestic jurisdiction of States have been convincingly challenged, and presently are generally not accepted. A situation in which social human rights are threatened in one country challenges the international community to assist in enabling the respective States to work toward the fulfillment of these human rights. The specific nature of human rights treaties, which is substantially different from most other treaties applicable in the relations between States, must be considered the main argument for considering basic human rights to impose obligations erga omnes. Not all aspects of the right to food must be considered to impose obligations erga omnes, but primarily those related to the measures for the distribution of food, in situations of an enduring food shortage.83 In this context, it is not considered fruitful to analyze the statement of an author, claiming that “…most obligations in human rights treaties might be seen as falling into the class of ‘integral’ obligations.”84 The basis for giving rise to obligations erga omnes is that the State has acted – or failed to act – in a manner resulting in an appalling situation, implying that there is a gross and systematic failure by the State to fulfill its obligations. Based on this principle, economic, social and cultural human rights might also 81 Seiderman 2001, p. 289. 82 Ibid, p. 124. 83 Moreover, when a government has asked the international community for assistance in times of famine and starvation, the suffering people should expect to be provided with food. Furthermore, if the State facing severe food shortage for its vulnerable population refuses to cooperate with the international community in order to have food provided, this would most certainly constitute non-compliance with the right to food. 84 Pauwelyn, 2001, p. 549 (emphasis added).
Solving Conflicts between Treaties, Identifying the Nature of Treaties
give rise to obligations erga omnes. The right to food is an example of a human right which can give rise to obligations erga omnes. Obligations erga omnes in the context of WTO and TRIPS: It has been acknowledged that ordinary WTO obligations are not of such a kind that all States have a legal interest in the compliance with these obligations. As an example, the USA has stated: “The concept erga omnes is squarely at odds with the fundamentally bilateral nature of WTO and GATT dispute settlement and with the notion that WTO disputes concern nullification and impairment of negotiated benefits to a particular Member. WTO adjudicators are tasked with resolving disputes between specific complaining and defending parties. Adjudicators may not, through improper importation of the concept erga omnes, enforce WTO obligations on behalf on non-parties to a dispute.”85 The interesting question is whether this observation that the dispute settlement under WTO is of a ‘fundamentally bilateral nature’, is correct with regard to all WTO agreements and in all situations. While WTO agreements prohibit unjustified or arbitrary discrimination between goods, services and intellectual property holders of domestic and foreign origin, these agreements are diverse, and TRIPS is the most prominent example of a ‘standard-setting’ or ‘law-making treaty’.86 The analysis will be based on three rulings from the Appellate Body. Based on these findings, an analysis specifically regarding TRIPS will be provided. It will be analyzed whether these examples imply that the WTO imply obligations erga omnes. First, it should be observed that a Dispute Settlement Panel has accepted – endorsed by the Appellate Body – that member States which are not major producers of a particular product can also bring a trade dispute relating to this product to the dispute settlement system, as “…any deviation [is likely]… to affect them, directly or indirectly”.87 The Appellate Body did not find that case law from the PCIJ/ICJ establishes as a general rule that “…a complaining party must have a “legal interest” in order to bring the case.”88 This indicates that less-affected parties might also be found eligible to bring a case. 85 US statement at a meeting 7 May 2003 in which it presented its reactions to the decision in paragraph 6.10 by the Arbitrators in WT/DS108/ARB (US – Foreign Sales Corporations; see: . 86 On the distinction between law-making and contractual treaties, see Wolfrum and Matz 2003, pp. 131-133. 87 WT/DS27/AB/R (EC-Bananas) , paragraph 136. 88 Ibid, paragraph 133. Pauwelyn 2003c, pp. 81-85, finds that the term ‘legal interest’ as applied by the Appellate Body, is not adequately precise. He rather establishes two conditions for legal standing to be established. First, in the context of WTO, addressing trade-restricting measures inconsistent with one or more of the WTO agreements, the trade of a particular WTO member State must – at least in theory – apply to the trade of the member bringing the case. Second, the State must prove that it is – potentially – affected by the measure, directly through trade or otherwise, including the effects of increased prices on the world market (trade opportunities, not trade effects). Therefore, as these two conditions must be met, a “…purely ‘legal interest’ is not enough” (Pauwelyn 2003c, p. 83, footnote omitted) in order for standing to be established.
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This principle has been extended as a result of the following: In the US – Line Pipe, a non-developing country (South Korea) successfully brought a claim against the USA for its failure to treat developing countries differently from industrialized countries under the Safeguard Agreement.89 In the US – Section 211 Appropriations Act, the EC was allowed to bring a complaint against the USA for certain provisions in the US intellectual property legislation which were discriminatory against Cuban citizens.90 The EC was not directly affected by this legislation, but the USA did not object to the fact that the EC made its claims before the WTO dispute settlement system, and subsequently won the case.91 These three examples illustrate that a State which does not have any specific economic interest can also be able to bring a case before the WTO’s dispute settlement system. An explanation is that the defending parties have not presented objections to the fact that the case is brought by States other than the directly-affected State. Moreover, the dispute settlement system seems to consider that these cases address certain issues which are found to be of importance for the WTO as such to clarify – and confirm – certain principles of favorable treatment and discrimination. An additional interpretative material relevant to the dispute settlement system will be included. GATT 1994 Article XXIII:1 on ‘Nullification or Impairment’ reads: If any contracting party should consider that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded…92
The legal interests hence extend to whether the attainment of the objective is being impeded. This indicates a strong legal interest in complying with the obligations. Moreover, while the TRIPS Agrement is setting out minimum standards for the protection of trade-related intellectual property, TRIPS is a standard-setting agreement. Implementation of TRIPS in accordance with its provisions is an obligation of all WTO member States. There are different positions with regard to the desirability of introducing the same standards in industrialized and developing States,93 but WTO member States have a legal interest in other States’ compliance with the TRIPS requirements. Does this qualify for establishing obligations erga omnes? The three requirements introduced at the introduction of this section (violates its legal obligations; grave and systematic manner; serious consequences) imply that there is a certain requirement for 89 WT/DS202/AB/R, paragraphs 120-133. 90 WT/DS176/AB/R, paragraphs 273-296. 91 As an argument against this reasoning, Pauwelyn (2003c, p. 85) holds that this “…would only mean that WTO members can, in certain circumstances, exercise the rights of other members, not that breach of any WTO rule by any WTO member creates an individual right for each and every other WTO member” (emphasis in original). 92 Emphasis added. Parts of Article XXIII are controversial, in particular Article XXIII:1(b) on non-violation, implying that a WTO Member State can also bring a case before the dispute settlement system also if there has been no direct violation of any of the specific provisions. 93 See, inter alia, Watal 2001 for the diverse positions of developing and industrialized States.
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establishing obligations erga omnes. Moreover, the legal interests must be claimed by all States. Those States which are not parties to the WTO cannot generally be claimed to have a so strong legal interest in a State’s compliance with the TRIPS obligations that this establishes obligations on the level of erga omnes.94 Therefore, while it must be emphasized that also State parties which are not directly affected by the trading practice in another State can bring this trading practice before the WTO’s dispute settlement system, it is not found that this constitutes legal interests of a kind which imply that obligations erga omnes are established. At the same time, the WTO constitutes more than merely ‘contractual treaties’. Moreover, while there are usually only two parties to a WTO dispute, the nature of the dispute is not ‘fundamentally bilateral’ as claimed by the USA. The legal effects of identifying obligations erga omnes: While obligations erga omnes imply that other States have a legal interest in a States compliance with its obligations, it must initially be stated that obligations erga omnes are first and foremost of a procedural nature, to determine when other States have a legal interest in one State’s compliance.95 Barcelona Traction introduced an essential distinction between obligations of a State toward the international community as a whole, and obligations arising vis-à-vis another State in the field of diplomatic protection. In the latter case, a State must first establish its right to bring a claim against another State.96 To determine the legal effects, one must start from this basic understanding. Based on obligations arising from the right to food, in a situation where the State bears a substantial responsibility for a situation with a high number of starving persons, this can give rise to obligations erga omnes. The ILC’s Study Group on Fragmentation of International Law has observed: “…obligations erga omnes were more concerned with the scope of the application of norms, rather than hierarchy.”97 Hence, the norms giving rise to obligations erga omnes apply generally, and the States do not have to establish that they have a right to bring a claim or complaint. Unlike jus cogens norms, which are substantive norms with specific legal effects, the same effects do not apply to obligations erga omnes. The identification that certain rights gives rise to obligations erga omnes does not determine that the treaty in which these human rights are recognized must always prevail over other treaties. However, it cannot be excluded that in order to clarify the relationship between a human rights treaty and a treaty which merely provides for bilateral 94 Whether the other WTO members might have obligations erga omnes partes (see United Nations 2001a, pp. 320-1) is a question which will not be elaborated further, as the obligations erga omnes partes is even more weakly founded in international law than obligations erga omnes. 95 See Seiderman 2001, p. 125: “Obligations erga omnes […] are not themselves primary or substantive rules of international law, but are rather obligations that give rise to certain legal consequences, or secondary rules of international law.” 96 Barcelona Traction, ICJ Report 1970 p. 33, paragraph 34. 97 UN 2005, pp. 223, paragraph 488. See also the Draft Articles on State Responsibility Article 33.1 and 48.
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concessions between States (contractual treaties), the fact that the human rights treaty gives rise to obligations erga omnes can be an element in the legal reasoning, as human rights norms do have a special status in international law. 11.3.3
The Concept of Multilateral Obligations
The concept of multilateral obligations has recently been introduced in the academic literature, as well as in the context of the ILC’s Draft Articles on State Responsibility.98 Initially it must be noted that the ‘multilateral obligations’ is wider and less established as a legal concept than obligations erga omnes. Multilateral obligations imply that two or more parties to a treaty giving rise to such obligations cannot modify or otherwise change the treaty.99 Conversely, a treaty giving rise to bilateral obligations can be modified as a result of an agreement between two or more parties to the treaty. This section will analyze whether the development and applications of multilateral obligations are relevant as a supplement to obligations erga omnes in identifying distinctions between human rights treaties and other treaties. Among such other treaties, WTO agreements will in particular be analyzed. Stated differently: does an appropriate understanding of multilateral obligations imply that human rights treaties give rise to multilateral obligations, and hence shall be given particular weight? An author addressing obligations arising under WTO law and human rights law claims: “The standard example of [multilateral] obligations are those arising under a human rights treaty [whereas] …WTO obligations remain essentially of a bilateral type; they are not collective in nature.”100 An alternative position is that a standard-setting treaty such as TRIPS is of a more collective nature. The WTO is analyzed at the end of this section, but first there is a need to give more clarity to the concept and its application.
98 See in particular UN 2000b Chapter IV; see also Tomuschat 1994, Frowein 1995, Simma 1997, Dominicé 1999, Pauwelyn 2002, Pauwelyn 2003b and Pauwelyn 2003c, Chapter 2. 99 Kirchner 2004, p. 59. Although he applies the terms ‘constitutional’ and ‘non-constitutional’, it is obvious that the legal effects are similar. Other terms applied are ‘law-making’ and ‘contractual’. Initially, it must be emphasized that this analysis is dealing with multilateral obligations, not multilateral treaties. 100 Pauwelyn 2003b, p. 907. See also Pauwelyn 2003b, pp. 930-936, in which he first identifies four reasons why WTO obligations should be considered bilateral obligations (trade as the object for negotiations; WTO is dominated by a bilateral approach, which is later ‘multilateralized’ and ‘collectivized’; the objective of WTO obligations can be individualized and reduced to the relation between two States; and the complainant State only is allowed to suspend its obligations vis-à-vis the State which has been found to be in non-compliance with WTO obligations). He also finds three reasons in support of a development toward considering at least some WTO obligations as closer to ‘collective’ (multilateral) obligations (ibid, pp. 936-941). These are: increased emphasis on economic interdependence; new themes, in which WTO obligations also extend to individuals, not only to States; and the more regulatory nature of these new WTO treaties. Pauwelyn (ibid, p. 945) finds that TRIPS “…of all WTO obligations, is the most regulatory in type…”
Solving Conflicts between Treaties, Identifying the Nature of Treaties
The concept: The concept of multilateral obligations is not an established legal concept.101 Furthermore, it is important to note that the attempt to introduce a distinction between treaty obligations of a reciprocal, interdependent and integral nature102 in the Vienna Convention on the Law of Treaties did not succeed. Therefore, with the exception of jus cogens norms, no hierarchy exists. The fact that this categorization was not subequently proposed by the ILC, implies that there should be reasons to be cautious about introducing new concepts which could be understood as a introduction of a new hierarchy in international law. No substantial efforts have been made to clarify the distinction between multilateral obligations and obligations erga omnes,103 and between multilateral obligations and the ‘international crimes of States’, as introduced and defined in the Draft Articles on State Responsibility.104 Such uncertainty regarding the scope of the concept of multilateral obligations should, however, not prevent one from analyzing obligations imposed by human rights treaties v. obligations imposed by economic law treaties. 101 Dominicé 1999, p. 354. 102 Yearbook of the International Law Commission 1958 Vol. II, pp. 27-28. The discussion continued in the ILC until their Final Draft was adopted in 1966. In the Commentary to Article 30 of the Final Draft (then Article 26), the ILC stated “…none of the forms of clause asserting the priority of a particular treaty over other treaties requires to be dealt with specially in the Article except Article 103 of the Charter. It considered that the real issue, which does not depend on the presence or absence of such a clause, is whether the conclusion of a treaty providing for obligations of an ‘interdependent’ or ‘integral’ character affects the actual capacity of each party unilaterally to enter into a later treaty derogating from these obligations or leaves the matter as one of international responsibility for breach of the treaty.” The ILC preferred the latter option (Yearbook of the International Law Commission 1966 Vol. II, p. 216, paragraph 8 – emphasis added). In a footnote, the definitions provided by Fitzmaurice were spelled out, with examples: Interdependent treaties are treaties in which “…the violation of its obligations by one party prejudices the treaty regime applicable between them all and not merely the relations between the defaulting State and the other parties.” Integral treaties were defined as treaties in which the “…obligation is self-evident, absolute and inherent for each party, and not depending on a corresponding performance by the others…” and include ‘Human Rights Conventions’ (Yearbook of the International Law Commission 1958 Vol. II, pp. 27-28 emphasis added – see also Yearbook of the International Law Commission 1966 Vol. II, p. 217, paragraph 13, considering human rights as a ‘vital matter’). Also in 1963 and 1964, the ILC dealt with interdependent and integral treaties (see ILC’s 1963 Yearbook, Vol. II, p. 39, paragraph 17 and ILC’s 1964 Yearbook, Vol. II, pp. 58-60, paragraphs 22-30. 103 See Pauwelyn 2003c p. 85, stating that integral obligations (commonly held to constitute a strict understanding of the term multilateral obligations – see more below) are binding erga omnes partes. See also Hutchinson 1988, analyzing Article 5 of the ILC’s Draft Articles on State Responsibility, as adopted in 1985, where paragraph 2 (f) addressed the ‘protection of the collective interests of the State parties’. 104 An explicit link between obligations erga omnes and State responsibility is made in UN 2005, p. 225, paragraph 292: “…obligations erga omnes related to the opposability of the obligations to all States, in particular the right of every State to invoke their violation as a basis for State responsibilitiy” (emphasis added). For a comprehensive overview of the international crimes of State, see Weiler, Cassese and Spinedi (eds.) 1989. See also de Hoogh 1996.
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While it is admitted that the term ‘multilateral obligations’ is still not clearly defined, it is important to distinguish clearly from ‘international crimes of States’.105 Moreover, the term ‘multilateral obligations’ is distinct from obligations erga omnes, as the latter must be narrowly understood, while the former has a wider application.106 The ILC, however, has not presented a definition distinguishing multilateral obligations clearly from obligations erga omnes.107 ILC’s distinction: There are three processes within the International Law Commission which will be anlyzed, in order to reach a better understanding of the term ‘multilateral obligations’. First, the elaboration on the law of treaties. Second, the drafting of articles on State responsibility. Third, the elaboration on fragmentation of international law. The attempt of distinguishing between international law treaties was made in Fitzmaurice’s report to the ILC in 1958, elaborating on three proposed categories of treaties, categorized by the nature of their obligations: integral treaties, interdependent treaties and reciprocal treaties.108 Regarding treaties of the integral type “…the force of the obligation is self-evident, absolute and inherent for each party, and not depending on a corresponding performance by the others…”109 The Convention Against Genocide is one example. Treaties with interdependent obligations are treaties in which the breach of one of the treaty obligations by one party “…will justify a corresponding non-performance…” by the other parties.110 Disarmament treaties give rise to such interdependent obligations. Treaties with reciprocal obligations are of the kind that only affect the relationship of the parties to a treaty.
105 Simma 1997, p. 309, discussing the term ‘international crimes of States’, finds that the introduction of this term has led to confusion in relation to the more established concepts of jus cogens norms and obligations erga omnes. 106 The present author finds that the main difference between the obligations erga omnes and multilateral obligations is that the former strictly applies to the internal jurisdiction of the State, while the latter has a stronger external dimension. Moreover, multilateral obligations must be considered to be more enduring obligations, not only relating to particular serious incidents while the establishment of obligations erga omnes are identified by balancing various provisions of the relevant treaties. Furthermore, no court ruling is necessary in order to establish this obligation. Unlike the obligation erga omnes, the distinction between bilateral and multilateral obligations is not recognized as a codified rule of international law. 107 Within the context of the Draft Articles on State Responsibility (UN 2000b (UN doc A/55/10), pp. 42-43), the ILC distinguished between the “State injured by an internationally wrongful act of another State and […] the State which had a legal interest in the performance of an international obligation without being directly injured…” This latter is an understanding which is almost identical to obligations erga omnes. See also Article 48 of Part III (‘The Implementation of the International Responsibility of a State’) of the Draft Articles on State Responsibility on ‘Invocation of responsibility by a State other than an injured State’. See also Article 33.1 of Part II (‘Content of the International Responsibility of a State’). 108 Yearbook of the International Law Commission 1958 Vol. II, p. 27-28. 109 Ibid, p. 28 (emphasis added). 110 Ibid, p. 27 (emphasis added).
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Treaties regulating bilateral diplomatic relations is one example. These distinctions were not proposed in later ILC drafts on the law of treaties. The second relevant process is the drafting of the Draft Articles on State Responsibility. While the Draft Articles themselves do not explicitly use the term ‘multilateral obligations’, the report by the Special Rapporteur introduced the distinction between multilateral and bilateral obligations.111 The subsequent discussion emphasized Article 60 of the Vienna Convention on the Law of Treaties (‘Termination or suspension of the operation of a treaty as a consequence of its breach’). Treaties where “…performance of the obligations of a treaty is owed to the parties to the treaty…”112 stand out from other treaties. Moreover, “[i]t will be a matter for the interpretation and application of the primary rule to determine into which of the categories an obligation comes.”113 The term ‘multilateral obligations’ hence encompasses both integral and interdependent obligations. Human rights treaties are not addressed in this context. Human rights, however, are recognized in another provision of the ILC’s Draft Articles on State Responsibility. The obligations recognized under Article 50.1 (‘obligations not affected by countermeasures’) – of which fundamental human rights obligations are part – must be considered to be multilateral obligations of an integral nature.114 Third, the ILC has recently also applied the term ‘absolute obligations’ in the context of human rights,115 in the context of a study on Article 41 on the Vienna Convention on the Law of Treaties (‘Agreements to modify multilateral treaties by certain of the parties only’). A distinction is made between treaties laying down reciprocal obligations, which can be modified, and treaties containing interdependent or absolute obligations, under which the “…power of modification is limited…”116 This demonstrates that the distinction between treaties based on their character has still some resonnance in the International Law Commission. Treaties which give rise to multilateral obligations – owed to the other parties to a treaty – are seen as being of a special nature. At the same time, there is no basis for claiming that the International Law Commission has made any deliberate efforts to clarify the term ‘multilateral obligations’. Moreover, there is no consistent application of terms in the three processes involving the ILC. One general principle can be derived from the reports analyzed: Members of the ILC still finds that a distinction can be made between integral and interdependent 111 112 113 114
See UN 2000a (UN doc A/CN.4/507), paragraphs 99-108. United Nations 2001a (A/56/10), p. 297. Ibid. Article 50.1 prohibits the taking of countermeasures affecting a) obligations to refrain from the use of force; b) obligations for the protection of fundamental human rights; c) obligations of a humanitarian character prohibiting reprisals; d) other obligations under preemptory norms under general international law (United Nations 2001a). 115 United Nations 2004a, p. 297, footnote 640 reads: “A human rights treaty gives rise to absolute obligations. The obligations it imposes are independent and absolute and performance of them in indedependent of the performance by the other parties of their performance.” 116 Ibid.
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obligations on the one hand, and reciprocal obligations on the other. While the two former are similar to multilateral obligations, the latter must be considered to be obligations of a bilateral kind. Distinction made in the Vienna Convention on the Law of Treaties: To which extent the Vienna Convention identifies certain treaty obligations that stand out from other treaty obligations, in addition to the jus cogens norms of Articles 53 and 64, will now analyzed. There is one provision which is a remnant from the category of interdependent treaties. This is Article 60.2(c), relating to performance of obligations: …if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.
This provision emphasizes the performance of obligations under the treaty, hence relating to interdependent obligations. As already shown, disarmament treaties gives rise to such obligations. As this does not establish the basis for distinguishing treaties, this paragraph will not be analyzed further. Article 60 includes another paragraph which can be considered as confirming that there are certain obligations relating to the protection of the human beings, in addition to jus cogens norms, which stands out from the other paragraphs. This is Article 60.5 on the protection of the human person.117 This paragraph recognizes that certain provisions in international treaties are different from other provisions: Paragraphs 1 to 3 [regarding termination or suspension of the operation of a treaty as a consequence of its breach] do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.
Human rights treaties must be considered to belong to this category of treaties.118 While the Vienna Convention does not explicitly state that these two paragraphs entail mul117 It is evident that treaties of a humanitarian character stand out from other treaties. In Reservations to the Genocide Convention, the representative from the United Kingdom made one of the strongest arguments before the International Court of Justice that there is a difference between treaties of a social and law-making type on the one hand, and treaties providing for the exchange of reciprocal benefits and obligations on the other (ICJ Report 1951, pp. 378383). In a separate opinion of Judge Weeramantry in Application of the Genocide Convention (ICJ Reports 1996, p. 640) the humanitarian and human rights treaties are held to be distinguished from other treaties, regulating particular interests of the States (see in particular pp. 645-646). See also Kirchner 2004, p. 59: “Human Rights treaties have arguably reached a status which elevates them over other treaties...” 118 This is confirmed by the Swiss delegation, which not only referred to the Geneva Conventions, but also to “…conventions of equal importance…” including the “…protection of human rights in general” (UN 1969, p. 354, paragraph 12). The Swiss delegation stated that “…
Solving Conflicts between Treaties, Identifying the Nature of Treaties
tilateral obligation, it is at least evident that these two paragraphs stand out from other paragraphs. Article 60.5 will be analyzed with the purpose of identifying the legal effects – if any – of applying this paragraph. The most important legal consequence of Article 60.5 is that treaties of a humanitarian character cannot be terminated or suspended simply because of a material breach of the treaty. It must also be asked whether Article 60.5 provides guidance regarding which material breaches of a treaty that cannot be accepted. Initially, it seems that Article 60.5 as such does not provide such guidance. Article 50.1 of the Draft Articles on State Responsibility explicitly states that ‘fundamental human rights obligations’ shall not be affected by countermeasures taken by an injured State against a State responsible for an internationally wrongful act.119 Hence, no State should be involved in any activities which affect another State’s obligations imposed by fundamental human rights. Article 60.5 in itself does not say that humanitarian treaties are to prevail over other international treaties, and does not help in solving specific conflicts between humanitarian treaties and other treaties. At the same time, however, if Article 60.5 is applied in order to clarify a treaty provision in a situation with conflicting treaties, it will most likely be done in order to indicate that the treaty relating to the protection of a human person must prevail over the other treaty. Article 60.5 strictly states that the treaties shall continue to apply irrespective of any material breach of any provisions of this treaty.120 Even if Article 60.5 does not provide much help in identifying the precise nature of obligations in humanitarian treaties, the scope of Article 60.5 also includes human rights treaties. Distinction made by legal authors: There are several authors who have attempted to define the concept of multilateral obligations. One definition is proposed by an author who has been active in setting the agenda for the discussion on the relationship between WTO law and general international law. He finds that the distinctive element is that breaches of multilateral obligations, unlike bilateral obligations, “…affect the rights or obligations of all other states bound by the rule concerned. If so, the obligation is of the multilateral/integral nature.”121 Hence, the author understands multilateral and integral obligations to be more or less the same. His focus is on how breaches by one State ‘affects the obligations of all other States’. While this is a legitimate concern, the consequences he identifies of such a breach (‘affects the obligations’) are similar to interdependent obligations. The breach of even a material breach of those conventions by a party should not be allowed to injure innocent people.” Their proposal was later presented to the plenary as document A/CONF.39/L.31 (See UN 1971, p. 269). In the voting, this proposal – presented as a ‘principle’ - was included in Article 60 with 87 votes to none, and 9 abstentions (UN 1970, p. 115). 119 Article 50.1(b) of the Draft Articles on State Responsibility (United Nations 2001 - A/56/10). 120 See also the definition of multilateral obligations given in the introductory paragraph of Chapter 11.3.3, stating that ‘two or more parties to a treaty giving rise to such obligations cannot modify or otherwise change the treaty’. 121 Pauwelyn 2002, p. 13.
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integral obligations, on the other hand, concerns all other States, and the obligations do not depend on a corresponding performance by the others. Other authors emphasize that the collective interest in upholding multilateral obligations is that a State’s breach of an obligation affects the performance of the treaty.122 This emphasis on ‘performance’ implies that such multilateral obligations arguably come closer to what was understood as interdependent obligations by Fitzmaurice in his 1958 report, in which a violation of obligations by one party prejudices the treaty regime applicable between them all. Another definition of multilateral obligations which does not emphasize the aspect of performance of a particular legal regime, but rather stresses the widely held interests of the community of States declares: “…a multilateral obligation is an absolute obligation in customary international law which is binding upon all states in their mutual relations, and that a breach of such an obligation concerns all other states.”123 This definition comes closer to the defintion of treaties with integral obligations. Simply stated, a distinction can be made between a wide definition (emphasizing treaty performance) and a narrow definition (obligations are absolute, not dependent upon treaty performance) of multilateral obligations. Both of these obligations stand out from other obligations. Is it obvious that fundamental human rights must be recognized as imposing multilateral obligations, understood in the narrow sense? The European Court of Human Rights has confirmed such understanding, and this understanding is generally not disputed.124 Moreover, the term ‘absolute obligations’ is more precise regarding human rights compared to the term ‘multilateral obligations’, as the latter is wider, and subject to different interpretations. It is important that a distinction is made between treaties where an “…obligation is self-evident, absolute and inherent for each party, and not depending on a corresponding performance by the others…”125 (integral obligations of human rights treaties) and treaties in which the “…violation of its obligations by one party prejudices the treaty regime applicable between them all.”126 (interdependent obligations of disarmament treaties).
122 Frowein 1995, p. 403. See also Hutchinson 1988, p. 153, stating that “…parties to a multilateral treaty have a right to its performance…” 123 Dominicé 1999, p. 357. Under this definition, the term ‘multilateral obligations’ is close to obligations erga omnes. 124 See Ireland v. United Kingdom judgement, in which it stated : “unlike international treaties of the classic kind, the Convention [European Convention on Human Rights and Fundamental Freedoms] comprises more than reciprocal engagements between contracting States. It creates, over and above a network of mutual bilateral understandings…” European Court of Human Rights 1978, A Series, No. 25, p. 90. 125 Yearbook of the International Law Commission 1958 Vol. II, pp. 27-28. The State party’s performance of its obligations is crucial; therefore, two or more parties to a treaty giving rise to such obligations can not modify or otherwise change the treaty. 126 Ibid. This refers to performance of the treaty regime, not performance of its obligations by a State party.
Solving Conflicts between Treaties, Identifying the Nature of Treaties
Finally, it must be identified whether the right to food is giving rise to the concept of multilateral obligations. Chapter 11.3.2 analyzed whether a distinction must be made between different human rights in the context of obligations erga omnes. This analysis is not directly applicable in the context of multilateral obligations. A distinction must be made between obligations which are of legal interest for the international community (obligations erga omnes), and obligations to which there are restricted modification possibilities (multilateral obligations). The concept ‘multilateral obligations’ is not yet very clear. We will not examine in detail whether a wider category of norms fall under this concept, compared to the norms under which obligations erga omnes are derived. With regard to human rights, however, the answer seems rather evident. As human rights treaties have no provisions on amendments, there are no possibilities of amending them – even if optional protocols can be adopted. This shows that human rights in general falls under the category of multilateral obligations. Distinction between different WTO agreements: It was found in Chapter 11.3.2 above, based on three rulings analyzed, as well as GATT 1994 Article XXIII:1 on ‘Nullification or Impairment’, that the other States than those directly affected can raise a dispute before the WTO dispute settlement system. While it was not found that this was sufficient to constitute obligations erga omnes, the traditional view that international economic law treaties constitute bilateral obligations,127 is not supported in this book. Pauwelyn finds that the objective of trade is not of a kind which implies that its obligations could be multilateral. He concludes that “…the way WTO obligations are enforced is exclusively bilateral. WTO dispute settlement does not, in the first place, tackle breach, but rather nullification of benefits that accrue to a particular member. […] Most importantly, in case the defendant loses and does not comply within a reasonable period of time, the winning state will be authorised to impose state-to-state countermeasures against the losing state (DSU Art. 22). This exclusively bilateral modality of enforcement of WTO rules is an important indication that most WTO obligations are reciprocal in nature.”128 These observations might apply to the old GATT 1947, but ‘ignore’ the developments since the establishment of the WTO, including treaties such as TRIPS, SPS and TBT, whose obligations are not merely bilateral or reciprocal. Based on these findings that WTO constitutes something more than merely bilateral relationships, it will now be analyzed whether these treaties might fall within the narrow concept of multilateral obligations – understood as integral or absolute obligations – or if they rather fall within the wider concept of multilateral obligations –understood as interdependent obligations. The requirements for an obligation to fall within the narrow concept must be considered to be relatively strict. Integral treaties were defined as treaties in which the “…ob127 See Pauwelyn 2002, pp. 12-31. See also Simma 1997, pp. 364-366, and Ethier 2004, pp. 452-453. For an alternative view, see Petersmann 2000 and 2002. 128 Ibid, p. 19 (emphasis in original). The proposals for a more collective approach applied after a State does not comply with the ruling from the dispute settlement system has not been brought further (see Pauwelyn, 2000, pp. 342-345).
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ligation is self-evident, absolute and inherent for each party, and not depending on a corresponding performance by the others…”129 Could the obligations arising under the TRIPS Agreement be considered to fall within the scope of this definition? In this context, it must also be emphasized that when the ILC has referred to treaties containing such obligations, these treaties have been found to “…protect vital matters.”130 Concerning the narrow understanding of multilateral obligations, while TRIPS might contain obligations which are ‘self-evident, absolute and inherent’, the instrumental nature of the rights protected by TRIPS is not of such a kind that they can be regarded as ‘vital matters’. It will now be clarified whether WTO obligations fall within the scope of the multilateral obligations (understood in the wide sense of interdependent obligations). Also here, the analysis will start from GATT 1994 Article XXIII:1 on ‘Nullification or Impairment’ which addresses situations where ‘the attainment of any objective of the Agreement is being impeded’. This provision primarily relates to a situation in which breaches of a treaty negatively affect the overall performance of this treaty. Performance of a treaty constitutes a central element of multilateral obligations (understood in the wide sense of interdependent obligations).131 This indicates that WTO obligations fall within the scope of multilateral obligations. This is further confirmed by the TRIPS Agreement, which contains provisions on minimum standards for intellectual property protection,132 and where the lack of observance of these standards by one or more States might affect the overall performance of the TRIPS Agreement. Therefore, the particular nature of some WTO agreements must be considered to constitute something more than just contractual obligations of a reciprocal nature. Legal consequences of establishing multilateral obligations: The legal consequences of determining that a treaty establishes multilateral obligations is that the treaty cannot be amended by some of the parties (inter se agreement). In general, most multilateral treaties are very difficult to amend. Regarding those treaties analyzed in this book, the Covenant and the TRIPS Agreement, the latter provides for amendment, and has already been amended in accordance with the 30 August 2003 decision and the 6 December 2005 decision.133 There has not been any attempts of amending the text of human rights treaties, but the scope of these treaties have been extended by the adoption of optional protocols. With regard to the Covenant, the only amendment that is foreseeable is the adoption of an optional protocol.
129 Yearbook of the International Law Commission 1958 Vol. II, pp. 27-28 (emphasis added). 130 Yearbook of the International Law Commission 1966 Vol. II, p. 217, paragraph 13. 131 See the definitions given by Pauwelyn (2002, p. 13) and Frowein (1995, p. 403), emphasizing that a breach of a treaty affects the obligations of other States or to the performance of the treaty. 132 Roessler 1996, p. 42, states that TRIPS is the only agreement annexed to the WTO Agreement that “…establishes positive standards for the conduct of domestic policies.” Roessler is the former Director of the WTO Legal Division. 133 WT/L/540 and WT/L/641, respectively.
Solving Conflicts between Treaties, Identifying the Nature of Treaties
Hence, a distinction can be drawn between human rights treaties on the one hand and WTO agreements on the other. This distinction should not be overemphasized, however. Minor amendments of TRIPS is likely,134 but not amendments relating to issues such as patenability and exclusive rights. Are there other distinctions that can be introduced in order to justify a claim that human rights treaties are of a different nature than intellectual property rights? First, the introduction of terms such as ‘law-making’135 and ‘constitutional’136 emphasize that human rights treaties contains more important norms than other treaties. This is also emphasized by the Commission on Intellectual Property, which states that intellectual property is a “…means by which nations and societies can help to promote the fulfilment of human economic and social rights.”137 Second, the very restricted possibilities for limitation of the human rights must be noted. It was found in Chapter 7.1 above that Article 4 of the Covenant establishes three requirements for limiting the recognized human rights (based on law; compatible with the nature of the rights; only for the promotion of general welfare). On the other hand, the TRIPS Agreement provides for several possibilities for the limitations of the rights, in addition to ‘exclusion from patentability’ as found in Article 27.2. Articles 30 (limited exceptions), 31 (other use) and 32 (revocation/forfeiture) all allow for the limitation of the exclusive rights, but all of these provisions are to be applied according to strict criteria. Therefore, there are more restricted possibilities for limiting the enjoyment of human rights compared with the possibilities that exists under patent rights. At the same time, the patent right holder has wide opportunities to ensure the exercise of his rights, by enforcing the rights by means of pursuasion or through the courts. Similar opportunities are not available for those who are not able to fully exercise their human rights. Therefore, the understanding that human rights constitute multilateral obligations in the narow sense (integral or absolute obligations) is not the only basis for stating that human rights treaties are of such important value that they must be given certain weight. The particular nature of these treaties and the restricted possibilities for limitations must also be observed. This could imply that human rights treaties might be elevated above treaties regulating matters of a more instrumental nature. As the definition of ‘multilateral obligations’ is still unresolved, it is difficult to make use of this legal concept as a basis for distinguishing between treaties. It is found, however, that human rights treaties fall within the narrow definition of multilateral obligations, while the TRIPS Agreement falls within the broad definition of multilateral obligations. At the same time, there are obligations under TRIPS indicating that they have 134 135 136 137
TRIPS Articles 27.3(b) and 71.1, explicitly allow for review or amendments of the treaty. Wolfrum and Matz 2003, pp. 131-133. Kirchner 2004, p. 59. Commission on Intellectual Property 2002, p. 6. The Commission also agrees: “In particular, there are no circumstances in which the most fundamental human rights should be subordinated to the requirements of IP protection. IP rights are granted by states for limited times (at least in the case of patents and copyrights) whereas human rights are inalienable and universal” (ibid).
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an integral or absolute character, for instance that the obligation is ‘self-evident, absolute and inherent’. A clearer distinction between these two types of treaties can be made by introducing obligations erga omnes (see Chapter 11.3.2 above). Therefore, a distinction must be made between those WTO agreement which establish procedures for the liberalization of trade, without establishing substantive standands, and those WTO agreements which establish substantive provisions that allow individuals to exercise exclusive rights. Moreover, with regard to human rights, rather than concluding definitively based on an unresolved definitional question, it is more appropriate to emphasize the nature of human rights and the values such treaties seek to protect. This will also highlight the differences between treaties regulating human rights and treaties regulating intellectual property rights. 11.3.4
The Weight of Human Rights Obligations in International Economic Law Interpretation
This analysis has found that there are differences between the two treaties with regard to the recognized rights to be protected, with the Covenant imposing obligations to which all other States have a legal interest, setting out absolute obligations,138 and with very limited possibilities for limitating the enjoyment of the rights. It is generally accepted that the WTO primarily regulates reciprocal relationships. Increasingly, there is also a recognition that the WTO establishes obligations relating to which also other States than the allegedly affected State have a legal interest in ensuring compliance, as the performance of the treaty is crucial. Moreover, many WTO agreements are actually standard-setting, and are not likely to be amended. Under TRIPS, there are provision allowing for limiting the enjoyment of the exclusive rights. This section has proven that human rights obligations are of a particular importance in international law. The nature of these treaties imply that they have a certain weight. Certain human rights that individuals should enjoy are more basic or fundamental, as they affect the physical integrity of the human being. To have the enjoyment of these human rights restricted in a systematic manner – both through acts of ommission and acts of commission139 – can lead to grave human rights situations. Realization of the right to food is central to human survival, hence being of legal interest for all States. Protection of patent rights does not have the same relationship to human survival. However, while patent rights do not repreresent the same vital interests as compared to the right to food, WTO member States must also observe the minimum obligations imposed by TRIPS.
138 UN 2004, p. 297, footnote 640. 139 See Chapter 4.2.3.
12
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
This chapter will present another approach, identifying potential conflicts with the Covenant that might arise from the implementation of TRIPS, based on the most relevant TRIPS provisions. It will also analyze if implementation of the relevant provisions of the Covenant might lead to conflicts with TRIPS. This chapter introduces a ‘perspective from below’ approach compared to those found in Chapter 10 (the extent of ‘refer to’ and ‘take into account’ provisions from the other treaties in interpreting and applying treaties, based on their relevance) as well as Chapter 11 (identifying the nature and weight of certain treaties in interpretation as well as principles for identifying and solving conflicts). The approach chosen in Chapter 12 seeks to identify the potential conflicts that might arise in the implementation of the provisions of the two treaties, seen in light of the different object and purpose of the treaties, but also if they can be implemented in a compatible manner. After a short introduction (Chapter 12.1), the analysis in Chapter 12.2 will be based on the application of the two categories of conflict identified in Chapter 11.1. There will be an analysis of the most important provisions of the two treaties to assess if there is actually a conflict between them. The analysis will emphasize whether States are actually substantially affected in their implementation of the relevant provisions of the Covenant if the States shall also act in compliance with their obligations imposed by the TRIPS Agreement. Additionally, the object and purpose of the two treaties will be analyzed, in line with the principles established in Chapter 3.1.3. As any treaty interpretation shall be performed in light of the treaty’s object and purpose, it will be important to analyze whether the object and purpose of the two treaties in fact differ. Chapter 12.3 will analyze human rights obligations which must be observed during any implementation and enforcement of TRIPS-compatible legislation. While this chapter will primarily address the issue of conflict between the two treaties, the analysis will reveal also whether and how the State parties can implement the two treaties in a mutually supporting manner. In short, the States must take into account all their other international legal obligations when implementing the provisions of one treaty. Making use of the flexibility provisions in a treaty like TRIPS is an appropriate and effective manner by which such mutually-supportive implementation is made easier.
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The analysis will be based on the treaties’ respective provisions by applying the three levels of State obligations, namely respect, protect and fulfill. While this framework is developed within a human rights context, there is no reason why it cannot also be applicable to other treaties regulating individual rights, which is a central characteristic of the TRIPS Agreement. Therefore, as this study is analyzing State obligations, the relationship between the two treaties will be analyzed on the respect, protect and fulfill levels of State obligations. Measures for the realization of the right to food will be emphasized, as little attention is being paid to these measures. 12.1
Approaches for Examining the Relationship between the Right to Food and Patent and Plant Variety Protection
In Chapter 6.3, three approaches for identifying a proper balance between authors’ rights and the right to enjoy the benefit of scientific progress were identified. These balancing approaches can also be generally applied to an analysis on the relationship between intellectual property rights and human rights. The three approaches, formulated in this larger context, are: – Is the enjoyment of patent and plant breeders’ rights positively or negatively affecting the enjoyment of human rights, as progressive and full realization of all economic, social and cultural human rights is the object and purpose of the Covenant? – Can a person exercising and enforcing patent or plant breeders’ right be able to enjoy these rights to the extent that it might be in the public interest to limit his enjoyment? – Are the State parties able to give sufficient priority to the most vulnerable and marginalized when, at the same time, providing the measures for the full enjoyment of patent and plant breeders’ rights? The first approach is relating to impact, and as found in Chapter 1.4, economic impact is difficult to introduce as part of the analysis. At the same time, it must be acknowledged that the two treaties differ. While the Patent section of TRIPS (Part II, section 5) protects modern forms of technology to the benefit of modern producers and industrialized countries, this represents a logic which is contrary to human rights protection, seeking to enhance access to crucial goods for the most vulnerable and emphasizing international assistance to developing States. This will be analyzed in light of the conflict on the level of measures introduced in Chapter 11.1.3, implying that impact is relevant to analyze in the context of whether measures prescribed by one treaty are impeded as a result of the taking of measures under another. This approach will be applied in Chapter 12.2.2 and 12.2.3. The second approach is one relating to legitimate limitations, which has already been analyzed in Chapters 7.1, 8.2.5, 9.1.4, 9.2.7 and 10.2.3, the latter focusing on the WTO’s
Lesser 2001, which presents a positive assessments of TRIPS, finds on p. 19, that the results for the less industrialized countries are more modest with regard to the effect of IPR strengthening on foreign direct investments and imports, main tools for technology transfer; see also Lamy 2004 and Maskus 2001.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
jurisprudence. The enjoyment of rights recognized by TRIPS cannot be without limitations, but it must be noted that TRIPS is silent on how to ensure other human rights and public interests, with the exception of provisions relating to compulsory licences and technology transfer. This approach will be applied in Chapter 12.2.2. The third approach is related to insufficient attention from State parties regarding proper means for achieving the best possible implementation of the respective treaties. This will be included in the analysis under Chapter 12.2.4. The chapter will analyze the relevant provisions by asking which interests are protected by implementing the provisions of the two treaties. A ‘perspective from below’ is chosen because it is generally held that patent right and plant breeders’ rights represent public policy measures which are granted for the purpose of serving the society as a whole, and hence contribute to a better fulfillment of human rights, and because the most marginalized must be prioritized in any human rights strategy. 12.2
The Treaty Provisions and the Measures to be Taken under the Treaties
It was found in Chapter 11.1.2 that an established principle for identifying treaty conflict is that two treaties contain mutually exclusive obligations (first category of conflict). There are not many prohibitions set out by the Covenant. This will, in effect, limit the application of this principle of identifying treaty conflict. As found in Chapter 11.1.3, however, another approach toward conflict is also justified. Under this principle, there might be a conflict if the taking of measures prescribed by one treaty is impeded as a result of the taking of measures prescribed by another treaty (second category of conflict). As the realization of the two treaties depends on the active taking of measures, an analysis of whether there are impeding measures is highly relevant to this book. A crucial question for the purpose of this study is whether certain measures undertaken for the purpose of ‘protecting nutrition’, and hence the right to food, can be impeded by TRIPS provisions. ‘Protecting nutrition’, as found in Article 8.1 of TRIPS, is embracing all the three levels of human rights obligations (respect, protect and fulfill). Chapter 12.2.1, based on the relevant provisions of the two treaties, identifies what is mandated and prohibited under the treaties. The crucial question in Chapter 12.2.2 is whether any of the TRIPS provisions prescribe measures which impede the taking of measures as prescribed by the Covenant. If they do not impede this taking of measures, the treaties must be considered to be compatible. Chapter 12.2.3 will then analyze measures prescribed by the Covenant, asking whether these measures are compatible
For an alternative position, see Rott 2002, in his concluding chapter. Articles 31(b) and 44.2 of TRIPS. Article 66.2, as well as Article 7 of TRIPS. The IPR Commission 2002, writes on p. 6: “…an IP right is best viewed as one of the means by which nations and societies can help promote the fulfillment of human economic and social rights. In particular, there are no circumstances in which the fundamental human rights should be subordinated to the requirements of IP protection.”
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with the TRIPS Agreement. In Chapter 12.2.4, a summary of the findings will be made, analyzed in the context of the two treaties’ object and purpose. 12.2.1
Prohibitions – The Treaty Obligations Cannot Be Complied with Simultaneously
There is no doubt that the TRIPS Agreement is more explicit in identifying what is prohibited under the Agreement, compared to the Covenant. Both treaties, however, identify discrimination as being prohibited. This section will analyze whether the prohibition against discrimination relates to whether one treaty mandates an action which the other treaty prohibits. The study will then – strictly applied to the subject matter regulated by both treaties – identify whether a prohibition under one of the treaties is at the same time a mandated action under the other. Non-discrimination: Articles 2.2 and 3 of the Covenant states that the rights recognized shall be enjoyed without discrimination. These provisions against discrimination must be applied in conjunction with one of the rights recognized in Part III of the Covenant. While there have been allegations that TRIPS promotes ‘western’ knowledge relating to new inventions and ignoring the inventive contributions of ‘non-western’ persons, TRIPS does not per se differentiate between or exclude any category referred to in Article 2.2 of the Covenant. Under TRIPS, the question of recognition is based on certain legal requirements which might result in exclusive rights. TRIPS does not prevent national legislation providing for the recognition of any intellectual property rights which are not regulated in the TRIPS Agreement. Any States seeking to strenghten the rights of local communities are not prevented from adopting laws for that purpose, provided that such laws do not impact on the TRIPS implementation, implying that TRIPS provisions cannot be given effect. There is an assumption that the long-term consequences of implementing TRIPS will be that the life science companies are able to provide more products to the market. As a result, the State’s own research efforts might be reduced, concentrating on facilitating basic research, while leaving the applied research and the deliveries of new products to the private companies. This could imply overall benefits, but at the same time it is not certain that the private sector is able to serve the most poor and vulnerable farmers appropriately. While this situation gives reason for concern, it is not likely that it falls within the scope of the anti-discrimination provisions of the Covenant.
This distinction between the measures inside of and outside of patent and plant variety legislation is based on WIPO 2003c, Add. 1, 2003, analyzing disclosure requirement provisions in patent laws as well as in non-patent laws (termed ‘separate legal principles’, see paragraph 111, p. 42). See Gana 1996, p. 341: “The TRIPS Agreement at best trivializes the contributions of preindustrial peoples to the wealth of the world’s resources in inventions…”. See also Sub-Commission 2001d p. 9, paragraph 26: “…the emphasis on modern technology but not other forms of technology suggests an imbalance in the TRIPS Agreement that could have an impact on the enjoyment of human rights, in particular cultural rights.”
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
Turning to the specific provisions of TRIPS, Article 27.1 states that patents shall be available without discrimination regarding the place of invention, the field of technology, and whether products are imported or locally produced – subject to the exceptions in Article 27.2 and 27.3, as well as Articles 30, 31 and 32. The enjoyment of the rights recognized in accordance with TRIPS is therefore not unlimited. TRIPS, however, prohibits the limitation of the recognized rights beyond what is explicitly provided for. A relevant test case is to analyze whether the non-discrimination provision in TRIPS Article 27.1 in fact prevents the enjoyment of Article 15.1(b) of the Covenant on the right of everyone to enjoy the benefit of scientific progress and its applications, read in conjunction with Article 11.2(a) on the taking of measures for the improved methods of food production and distribution by making full use of technical and scientific knowledge. Stated differently, does the enforcement of patent rights in accordance with Article 27.1 of TRIPS result in a situation where specific groups are excluded from enjoying the benefits of scientific progress, or they can only enjoy these rights at an unafforable cost? The non-discrimination provision is only applicable if it is found that the State deliberately subjects different groups to a different enjoyment of the rights. Such an effect cannot be found with regard to TRIPS. The exclusive rights to the making, using and selling of a protected invention might, however, restrict other actors’ possibilities from commercially exploiting the patented products. This can affect both physical and economical accessibility. All farmers are free to choose non-protected seeds, and most staple food plants are not subject to exclusive protection. Moreover, the patent system ensures that information concerning the invention is available and can be used by others, who can ‘invent around’ the patented invention. The alternative to patenting can be that inventions are kept secret. Moreover, technological means of protection (see Chapter 2.3.5), while not applied yet, cannot be excluded in the future. Such a protection system could well have a larger impact than patent or plant variety protection. Therefore, when analyzing the prohibition against discrimination, there is no conflict on the first level of conflict (identifying prohibition provisions). Other prohibitions: It is seen that in addition to the prohibition against discrimination, the Covenant does not set out many prohibitions. There are some notable exceptions, however. While all rights recognized under the Covenant impose obligations on all three levels: respect, protect and fulfill, there are some rights which primarily impose obligations on the ‘respect’ level. Regarding Article 11, it does not set out clear prohibitions. There is, however, an unwritten rule against unjustifiable and unreasonable interferences in the enjoyment of
As found in Chapter 8.2.5 above, Article 32 does not determine on which basis a patent can be revoked or forfeited. Therefore, a revocation on grounds of public interest is, in principle, possible. While other provisions of Part II of the Covenant are identifying ‘prohibitions’, particularly Article 5.1 (‘abuse of rights clause’ – see Chapter 7.2 for details) the application of the Article is restricted by the fact that it can only be applied in conjunction with a substantive provision of Part III of the Covenant.
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the right to food (respect level), as well as to discriminate regarding the individual’s enjoyment of the right to food. Moreover, in a situation with mass starvation, as a result of gross and systematic violations, giving rise to a situation in which the international community has a legal interest in compliance with the human rights obligations (obligations erga omnes), States will be prohibited from impeding upon any efforts to provide food to the starving persons. These situations are not primarily related to the subject matter regulated by TRIPS.10 Therefore, despite the possible restriction in food accessibility due to patent and plant variety protection, no hunger situations gives rise to identify a first category of conflict (conflict on the level of prohibitions) between TRIPS and the Covenant. This study finds that the obligations imposed by Article 15.1(b) are weaker than the obligations imposed by Article 11.2 of the Covenant.11 The obligations imposed by Article 11.2 relate to edible food, while Article 15.1(b) relates to the more imprecise ‘scientific applications’. The same obligations cannot be considered to apply to the latter, as access to food is crucial for upholding life and dignity, while access to scientific applications does not have the same direct relationship to life and dignity. Article 15.3 of the Covenant asserts that the State parties “…undertake to respect the freedom indispensable for scientific research....”12 There is nothing in the TRIPS Agreement which addresses the issue of scientific freedom. TRIPS does not therefore prohibit any action taken with the view of ensuring this freedom. The fact that TRIPS is quiet on this issue cannot be interpreted to imply that the implementation of TRIPS will never raise issues as to whether scientific freedom is affected. Research could be restrained due to fears that the research might result in a product that falls within the patent claims of an existing patent. Such products are, under normal circumstances, not possible to commercialize while the original patent is in force. Strictly speaking, Article 15.3 can only be understood to apply to the research situation, not to the dissemination of the research products. TRIPS cannot be interpreted as to restrict the possibilities of undertaking research, even on patented products, as long as the research is in the form of experimentation on the patented invention (researchers’ privilege), and not on prepa10 If food production is heavily dependent on the growing of protected seeds, which is the subject matter regulated by TRIPS, starvation could also take place if this protected seed fails to perform or is lacking in availability, resulting in reduced harvests. In these situations, both granting of compulsory licenses (Article 31) and provision of other seeds (also by parallel imports in accordance with Article 6 and footnotes 6 and 13) are crucial measures to be taken for the production and distribution of food. 11 At the same time, as argued in Chapter 11.1.3, the obligations under Article 11.2 state that measures shall be taken, in other words, that the State parties shall do ‘something’, but does not specify which measures and how they shall be taken. 12 Note in this context also that the International Law Commission (ILC), in their process of drafting what was to become the Vienna Convention on the Law of Treaties, made some clarifications with regard to the Antarctic Treaty, stating that Article 2 of that treaty “…which provides for ‘freedom of scientific investigation’ is of an ‘integral’ type, though it may involve some elements of ‘reciprocating’ obligations…” (ILC Yearbook 1964 Vol. II, p. 60, emphasis added).
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
rations for marketing a product which fall within the claims of an existing patent.13 How the researchers’ exemption is recognized nationally is regulated by national law, and TRIPS does not regulate this. While this study does not find that this raises a situation of conflict under the first category of conflict, the obligations relating to research are crucial, and will be analyzed in Chapter 12.3.2. Turning to the TRIPS Agreement, there are prohibitions against limiting the period of protection established by Article 33. Another prohibition is the introduction of requirements other than those set out in Article 27 (material requirements) and Article 29 (procedural requirements). The Covenant does not regulate these issues. As was found in Chapter 6.1.2, the conditions for the enjoyment of authors’ rights in accordance with Article 15.1(c) – most notably the requirement of actual production and the person-production link – are not regulated in TRIPS. The prohibitions of TRIPS do not relate to issues regulated in the Covenant. Summary: If one applies the first category of conflict to the relationship between the Covenant and the TRIPS Agreement, conflict is difficult to identify.14 While the Covenant does contain certain prohibitions, these do not fall within the scope of the TRIPS provisions, and vice versa. Moreover, WTO experts identify possible conflicts between TRIPS and the Convention on Biological Diversity (CBD) as the latter contains provisions which explicitly treat developing countries differently from developed countries.15 It is not found here that the same applies to the relationship between the Covenant and TRIPS. The Covenant emphasizes the obligation of international cooperation and assistance for the enjoyment of rights recognized in the Covenant, particularly in developing countries. With the exception of Article 2.3, there are no provisions that provide for the different treatment of developing countries. 12.2.2
TRIPS-Prescribed Measures and the Compliance with the Covenant
There is a need to analyze the treaty provisions more in detail, however, to identify whether a conflict exists between the two treaties, more precisely the second category of conflict, as identified in Chapter 11.2.3 (conflict on the level of measures). As the substantive rights are outlined in Part II of the TRIPS Agreement, we will focus on the measures taken in accordance with the relevant provisions in this Part. The administrative and legal measures to be taken in accordance with the provisions of Part III are also relevant for assessing the conflict or compatibility between TRIPS 13
National legislation might restrict the experimental exception; see South Centre and CIEL 2004, p. 6. 14 See Sadat-Akhavi 2003, p. 43: “…two norms remain reconcilable if one norm prohibits one or some, but not all, manners in which the other norm can be performed.” As TRIPS and the Covenant give rather wide margins of discretion regarding the implementation of the provisions, it will be possible to ‘perform a norm’ under one treaty in a manner not prohibited by the other treaty. 15 See Matsushita et al. 2003, p. 417. Their findings will also be analyzed in Chapter 12.2.3 below.
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and the International Covenant on Economic, Social and Cultural Rights. Part I is not equally relevant, as it does not set out substantive provisions, but merely provisions that establish the principles and scope of TRIPS. The most relevant, but also the weakest, is Article 8.1, which states that any measures must be in conformity with other provisions of TRIPS.16 This section will therefore primarily analyze Part II, and, to a lesser extent, Part III of the TRIPS Agreement. More specifically, the section will analyze whether the implementation of the TRIPS provisions impedes the taking of measures for the realization of human rights in accordance the Covenant. An analysis will be undertaken by highlighting four situations. First, a situation with prevailing hunger and a fragile agricultural sector. Second, a situation dominated by labor-intensive agriculture and little commercial involvement. Third, a situation with more commercially-oriented production, with an active role by the plant breeding industry. Fourth, a situation dominated by highly commercial agricultural production, where ‘life science’ companies actively market both patented seeds and other inputs. When seeking to answer whether a possible conflict exists in a situation of alleged infringements between the TRIPS Agreement and the Covenant on the level of measures,17 one must identify whether a particular measure is in fact prescribed by TRIPS. 16 Article 8.1 reads (extracts): “Members may […] adopt measures […] provided that such measures are consistent with the provisions of this Agreement.” Similar wording to Article 8.1 of TRIPS is found in three bracketed paragraphs of the Draft Substantive Patent Law Treaty (WIPO 2003e). First, the ‘Public Interest Exception’ of Article 2(3) says (emphasis added):
Nothing in this Treaty and the Regulations shall limit the freedom of the Contracting Parties to protect public health, nutrition and the environment or to take any action as it deems necessary to promote the public interest in sectors of vital importance to its socio-economic, scientific and technological development.
Second, the paragraphs reading ‘Compliance with Applicable Law in Other Matters’ (Article 13(4) and Article 14(3)) states (emphasis added):
A Contracting Party may also require compliance with the applicable law on public health, nutrition, ethics in scientific research, environment, access to genetic resources, traditional knowledge and other areas of public interesting sectors of vital importance for their social, economic and technological development.
As these are only draft proposals, they cannot be given much weight. The draft text must, however, be considered to go beyond Article 8.1 of TRIPS. First, the phrase in Article 2(3) that ‘nothing in this Treaty shall limit the freedom’ is stronger than ‘Members may adopt measures’. Second, the phrase in Article 2(3) ‘it deems necessary to promote’ is stronger than the term ‘necessary to protect’. Third, Articles 13 and 14 concern grounds for refusal and grounds for invalidation or revocation, respectively, and are operative paragraphs, while Article 8.1 of TRIPS outlines the principles which shall be taken into account, and is found in the less operative Part I of the TRIPS Agreement. Fourth, Article 8.1 of TRIPS states that the measures must be consistent with TRIPS. Similar conditions do not appear in the bracketed text of the three paragraphs of the Substantive Patent Law Treaty. 17 The relevant provisions of the Covenant are Article 11.2(a) on the taking of measures to improve methods of food production, all three paragraphs of Article 15.1, and Article 15.3 on respecting the freedom indispensable for scientific research and creative activities, read in light of Article 2.1.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
If the measure is not prescribed by TRIPS, the States can make use of the flexibilities inherent in the Agreement when formulating their legislation. A situation with prevailing hunger: Could implementation of the TRIPS Agreement be either the cause of or have an aggravating effect on hunger? A situation with hunger is the result of complex factors, but could result from distributional issues as much as issues relating to production.18 Sen has found that what matters is not whether there being enough food, but whether people are having enough to eat.19 The four entitlements which determine whether people have access to and command over food are production, trade, aquiring food from the State, and aquiring food through other means.20 There is no current evidence indicating that implementation and enforcement21 of patent and plant breeders rights has resulted in a situation of hunger. Neither production of food nor distribution of food have been adversely affected to the extent that hunger has been the outcome. A potential situation will therefore be described, where hunger is resulting from – or is aggravated by – the fact that traditional seeds have effectively been replaced, because protected seeds have been chosen by the farmers. Concerns relating to monoculture are legitimate in such situations, but monoculture cannot, in itself, lead to hunger. A situation of hunger might come about, however, either as a result of the producers of protected seeds are not able to provide these protected seeds – affecting both the production and distribution of food – or as a result of diseases on the plants, either protected or unprotected,22 affecting the production of food. This is a serious situation. If adequate responses are not taken, food production can fall dramatically and hunger might be the result. In such a situation, which must be considered an ‘extreme urgency’,23 the dissemination of germplasm from national and international gene banks is crucial in order to restore food production. While this represents a particular concern and can affect the realization of the right to food, such a situation will allow the State, as well as the international community, if this is required, to undertake extensive measures in the field of both production and resource-based distribution of food. The most relevant question is the extent to which the rights of the plant breeder or patent owner can be set aside in order to serve the needs of the community and ensure the realization of the right to food. This analysis relates to TRIPS Articles 30 (limited exceptions, taking into account the legitimate interests of third parties), 31(b) (compulsory licenses in situations of extreme urgency or public, non-commercial use) and 32 (allowing revocation of patents in the public interests). As made clear in Chapter 8.2.5 above, Article 31(b) – setting out material requirements – and Article 32 – setting out procedural requirements – operates on a case-to-case ba18 See Brownlie 1987, pp. 12-15 (referring to Sen), Eide 1987, pp. 32-34, Sucharitkul 1994, pp. 381382. 19 Sen 1981, p. 1. 20 Ibid, p. 45. 21 See Matthews 2002, p. 117, on the distinction between implementation and enforcement. 22 Under normal circumstances, modified and protected seeds will have resistance against diseases, but such seeds are not 100 per cent immune. 23 See Article 31(b) of TRIPS.
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sis. Article 30, providing for limited exceptions, sets out the TRIPS-compatible requirements for including any exceptions into the national patent laws. Will these articles be applicable in the situation described above? On the one hand, the right holder can only have his rights restricted if the procedural requirements are followed. This applies particularly to Article 31(b), as there must have been efforts to obtain the authorization from the right holder. Moreover, Articles 31(i) and 32 both say that judicial review shall be available to challenge any decision made. Such possibilities to challenge must also apply to the formulation or application of national legislation. Finally, according to Article 31(h) TRIPS, with similar formulations in UPOV 1978 Article 9.2 and UPOV 1991 Article 17.2, respectively, remuneration shall be paid to the right holder if others exploit the subject matter of the patent or plant breeders’ rights. There will now be an examination of a hypothetical, but not unlikely, situation with widespread diseases on plants, which are protected by either patents or plant variety protection. In such a situation, there will be attempts to replace the sick plants with healthy ones. Different plants than those falling within the scope of protection must be preferred. If the planting of such alternative plants is made difficult due to how the right holder exercises his rights, including through any ‘technology use fee agreement’, this might be a reason for restricting the rights of the rights holders, particularly through the means of a compulsory licence. Moreover, if the right holder is unable to provide to the competent authorities the relevant material due to this disease, this might constitute a basis for the forfeiture of the right.24 These decisons, allowing for efforts to find alternative varieties, could also be made based on concerns for the overall food production in such situations. This illustrates that a hunger situation resulting from widespread adoption of protected seeds cannot be categorically excluded. It must be reiterated, however, that TRIPS only establishes minimum standards for intellectual property protection, and that all are free to choose whether they want to aquire protected products or not. There is no necessary consequence of TRIPS that all farmers are using protected seeds. Faced with a serious situation of hunger, the State must be understood to have wide powers for adopting appropriate measures, including, but not restricted to, the limiting of rights, the granting of compulsory licenses – with the possibilities of reducing the remuneration in accordance with TRIPS Article 44.2 – and even revoking patent or plant breeders’ rights. This is done to serve the public interest as well as to ensure the enjoyment of the right to food. Measures in fields other than patent and plant variety protection are also crucial. A situation with labor-intensive agriculture and little commercial involvement: Most farmers in developing countries are provided with the seed either from their own harvest or from neighboring farmers. It is wrong to assume that these farmers are not innovative.25 At the same time, it is necessary to assess the need for increased food production, par24 See UPOV 1978, Article 10.2. It was seen in Chapter 9 above that UPOV does not provide for revocation in the public interest, but a system for plant variety protection that is compatible with TRIPS can include such basis for revocation. 25 Kuyuk 2002.
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ticularly in the regions with high population growth and ecological constraints. Will TRIPS implementation lead to a situation where such local exchange is no longer possible, but is replaced by the provisions from commercial seed providers? Initially, it is emphasized that this book does not argue against biotechnology in agriculture. Also, Article 11.2(a) of the Covenant states that the State parties shall take measures by ‘making full use of technical and scientific knowledge’ for the realization of the right to be free from hunger. At the same time, a transition directly from local seed provision to the seed provision by commercial actors, might imply risks that poor farmers and poor countries become more vulnerable.26 Not all farmers have sufficient information to make assessments on whether they will be able to recover the increased price when buying protected seeds, as these seeds are likely to give higher yields. Eide does not “…advocate a status quo concerning traditional production systems, but […] when seeking to promote more effective methods [one] must take traditional knowledge and experience as the starting point, and translate it into approaches where modern science and traditionally adapted principles are combined in order to maximize the prospects for adequate food consumption, nutritionally balanced, and in respect of ecological constraints.”27 Have these considerations been taken care of appropriately in the context of the implementation of TRIPS? TRIPS establishes minimum standards in the field of intellectual property protetion. The implementation of TRIPS will result in better opportunities for right holders to have their rights protected and enforced. They must be expected to exploit the timelimited exclusive rights which they have been granted, by introducing their protected products in new markets. To which extent does this result in a more difficult situation for those involved in traditional farming and breeding? Perhaps the most serious concern arising from this situation is that the State devotes most of its attention toward the loyal implementation of the TRIPS Agreement, ignoring measures to be taken under other treaties like the Covenant and the ITPGRFA. The result can be that less efforts are invested into publicly-funded or publicly-driven research, and that the private actors are the only ones providing seeds to the farmers. Moreover, the efforts of traditional farmers and breeders can be ignored to the extent that they do not even enjoy defensive protection in patent of plant variety decisions.28 In some cases, a patent scope has been so wide so that it also encompasses the traditional varieties, resulting in claims against those growing such varieties nationally, or those who are exporting this variety from another State.29 The highly contentious 26 See Lipton 1989, p. 401, for the impact on poor farmers and Evenson and Rosengrant 2003 p. 496, for the impact on poor countries. 27 Eide 1987, p. 35. 28 Chapter 6.1.3 introduced the distinction between defensive and positive protection, where the former protects against misappropriation, while the latter implies some form of legal recognition. 29 An example of a patent which has severely restricted the legitimate trade, in blatant violation of the principle embodied in the TRIPS preamble (‘ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade’) is the Enola patent (US patent 5.894,079, granted 13 April 1999) to which CIAT has issued a
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Enola patent has effectively prevented the importing of food into the US, as all yellow beans are protected by this patent – even if the production in Mexico has been going on for decades. Yellow beans are not protected in Mexico. This implies that the farmers in Mexico are not denied access to yellow beans per se. As they are denied access to the US market, the Mexican farmers abandon the growing of this particular food plant. This illustrates a situation where farmers face considerable uncertainties, which could have an impact on food production. The enola beans patent is not a direct result of the TRIPS Agreement, but rather of a particular application of the US Patent Law in this particular situation.30 A correct application of the legal criteria for both patent and plant variety protection, in accordance with TRIPS, implies that the exclusive rights will not restrict selling or importing of traditional, non-protected seeds. These potentially negative effects must be seen in relation to the obligation under Article 11.2(b) of the Covenant, “…to ensure an equitable distribution of world food supplies in relation to need.” The State hosting these farmers could make complaints about any patent which restricts the trading possibilities of their farmers, and hence reduces their income potential, but the formal request for re-examination in the Enola dispute was made by CIAT. The State, however, must seek ways to protect those farmers who face a restricted market due to the grant of a patent or plant variety right. At the same time, TRIPS does not change the freedom that each State has to apply appropriate standards for patentability suitable to their situation, as long as their legislation is in accordance with Article 27.31 Moreover, Article 28 does not restrict the freedom to define the scope of the private use and breeders’ exemptions. It is also a requirement of Article 29 to disclose the invention in a manner sufficiently clear and complete. This requirement could imply that the source of the original material from which this invention is derived, should be given. The EC finds that this is an obligation only if this information is “…essential to put the invention into practice.”32 Developing countries,
formal request for re-examination, and has referred to the 1994 FAO-CGIAR Agreement; see FAO 2002b. Carlsen 2001 has shown that between the seasons of 1998-99 and 2000-01, the patent holder threatened all producers and importers of yellow beans with litigation unless they paid to the patent holder six cents per pound. The Mexican yellow bean acreage fell by 76 %, the Mexican production of yellow beans fell from 250,000 tons to only 96,000 tons, and the amount of Mexican yellow beans sold in the US became negligible. 30 The US patent 5,894,079 has been in force during six years of re-examination. In the last decision, the patentee was allowed to ask for an extended period of re-examination (see ETC Group 2005). Doubts can be expressed as to whether the criteria of novelty, non-obviousness or utility have been correctly applied. 31 See also the observation of the Panel in WT/DS114/R, paragraph 7.92: “Article 27 does not prohibit bona fide exceptions to deal with problems that exist only in certain product areas.” 32 IP/C/W/383, paragraph 46. In paragraph 55, the EC holds that a disclosure should not be an additional patentability criterion. For an alternative position, see document IP/C/W/404 from the African Group. See also Norway’s position in document IP/C/W/473, stating that an “application should not be processed until the required information has been submitted” (paragraph 7).
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
on their part, are dissatisfied that information on the source of origin for the original biological material, is not required for a patent to be granted.33 In sum, these articles are not implying that the State is in any way prevented from adopting the appropriate measures, or that the farmers are not able to continue to grow and retain command over their food. The only requirement is that the legal criteria for granting protection are correctly applied. A situation with commercially-oriented production and an active plant breeding industry: When the plant breeding industry is well established in a State, it is reasonable to assume that some form of plant variety protection has been introduced. It might also be that the State is in the process of adopting such legislation, due to the TRIPS requirements, pressure exercised in the context of bilateral trade negotiations,34 as well as pressure from the national plant breeding industry. Will the TRIPS requirements result in an earlier adoption of plant variety protection than what is in the interests of the farmers and traditional breeders in the country? Moreover, does TRIPS result in limiting the freedom that States have to adopt a plant variety protection system that is adapted to their particular needs, reflected by the structure of the agricultural sector? Chapter 9 analyzed in detail both the UPOV Convention, which is a relatively strict system for the protection of plant varieties, and the requirements of an ‘effective sui generis system’ for plant variety protection, illustrated, inter alia, by the OAU Model Law. Most States seeking to comply with the requirements of Article 27.3(b) regarding plant variety protection, seek to comply with the UPOV 1991 requirements.35 At the same time, it must be analyzed whether an increased role for the private breeding industry is necessarily negative for the realization of the right to food. The State parties of the Covenant are also under an obligation to adopt measures in the area of making full use of technical and scientific knowledge. If the State does not have the necessary capacity or financial resources, could the State comply with Article 11.2(a) by facilitating the breeding industry with the adoption of plant breeders’ rights legislation? 33 This is the main argument in the document IP/C/W/404 to the TRIPS Council by the African Group. The lack of additional requirements in Article 29.1 could also affect the enjoyment of human rights in accordance with Article 15.1(c) of the Covenant. Such a situation arises if a person who is otherwise an author within the meaning of Article 15.1(c), entitled to enjoy the moral and material interest resulting from his production, is left without enjoying any benefits when a patent or a plant variety certificate is granted. 34 A section in these trade agreements addresses intellectual property, stating that the parties shall adopt a legislation in conformity with UPOV 1991. These agreements, establishing standards above TRIPS, are commonly referred to as ’TRIPS-plus’; see Musungu and Dutfield 2003. 35 Ekpere 2002, p. 10, finds that there are four African States with several variants of ‘sui generis’ system for the protection of plant varieties: South Africa, Egypt, Namibia and Zimbabwe, but of these, only Namibia has adopted a system that is independent from UPOV (South Africa is a member to UPOV 1978, Zimbabwe is in the process of accession, and Egypt has applied to become a member of UPOV).
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This raises difficult questions, in which the balancing between production of food and command over food is crucial. General Comment No. 12 identifies availability and accessibility as ‘core contents’ of the right to food. On the one hand, increased production is an important objective, and will, under most circumstances, contribute to the realization of the right to food. Protected seeds will be preferred if these increase the yields or reduce the costs of pesticides more than the costs of purchasing such protected seeds. All farmers are free to decide whether they want to acquire protected seeds or not. In addition, the fact that the propagating material of a plant is protected, does not affect the possibilities to sell the resulting harvest. Moreover, TRIPS does not require that the protection extends to subsequent progeny replanted on one’s own field.36 Hence, increased food availability might contribute to better food accessibility. On the other hand, command over the propagating material to produce food is important in order to avoid becoming dependent upon the external seed providers. Command over the propagating material is an element in the overall command over food. Farmers who, due to several factors, are no longer able to purchase protected seeds, might find it difficult to return to traditional seed use. For a State, relying upon private breeders will imply that fewer measures for food production are at the disposal of the State. Moreover, increased food production is of little use for the realization of the right to food if this does not, at the same time, contribute to enhanced food distribution. These observations do at least indicate that the State must ensure adoption of legislation which is appropriate to serve both the objective of improved methods for food production and the objective of improved method for food distribution. These represent obligations on both the levels of protect and fulfill. As the requirements of Article 27.3(b) of TRIPS regarding plant variety protection are less strict than the requirements of the UPOV Convention, it is not possible to say that TRIPS per se is limiting the freedom which States have to adopt a plant variety protection system that is adapted to their particular needs. In Chapter 12.3.1, however, there will be an analysis on issues relating to distribution, which represent important considerations when a State is to adopt some type of legislation for plant variety protection. Whether TRIPS is pushing for such adoptation of plant variety protection earlier than a country would decide independently to adopt such legislation is another issue that was raised above. There can be no doubt that the interest among developing countries to join UPOV must be explained by TRIPS requirements, and not only by internal pressure. A final concern must be addressed. This is the fear that exclusive rights will impose restrictions on the activities of the agricultural researchers, either private or public. Particularly if public agricultural research is impeded, this represents challenges for the State obligations with regard to food on the fulfill level. Moreover, public research and extention services of new seeds to the farmers will increase the options available to farmers, which is crucial in order to reduce their dependency on the providers of seed. On the one hand, it must be emphasized that patents do not prevent any experimentation on a patented invention, hence providing incentives to ‘invent around’. The State is under an obligation both to improve methods of food production (facilitate) as well 36 See also Article 11.1 of the EC Commission Directive 98/44, and Moufang 2003, p. 8.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
as food distribution (provide), in order to realize the right to food, seen in light of the obligation of Article 11.2(a). Only if a State is effectively prevented from performing its obligations by any means can this relationship between the TRIPS Agreement and the Covenant, on the level of measures (second category of conflict), be a conflicting one. This study does not find that States are prevented from adopting measures as prescribed in Article 11.2(a) of the Covenant. Moreover, there are still far more food plants which are not subject to any intensive research compared to those food plants which attract substantial attention from private companies.37 There is an underinvestment in reseach on several staple food plants, particularly those grown in the tropics. Public research efforts on these plant will not be impeded by patent or plant variety protection. Another option is given in Article 12.1 and 12.2 of the EC’s Biotechnology Directive,38 allowing for the granting of a compulsory license when a breeder cannot exploit a plant variety right without infringing a prior patent or a prior plant variety right, respectively. This option is available also when implementing TRIPS. It is therefore not possible to state that TRIPS impacts negatively on the overall possibilities to undertake research. Obligations relating to research will be analyzed in more detail in Chapter 12.3.2 below, emphasizing to which extent States are able to adopt legislation that ensures the continued breeding and research, particularly public breeding. A situation dominated by highly commercial agricultural production, and provision of both patented seed and other inputs provided by ‘life science’ companies: The analysis will be particularly related to the measures for ensuring exclusive rights over plants which have incorporated patented genes, seen in relation to measures taken for the realization of the right to food. An initial concern in the area of protection of genes is that genetic information which has been held by inventive persons belonging to indigenous peoples and local communities, without exploiting this information commercially, can be appropriated by modern inventors, who are able to use this genetic information to produce a marketable product. All exclusive rights, as well as potential commerial revenue arising from the exploitation of these rights, will go to the right holder, who is not under any obligation to provide sharing of benefits – neither with the State nor with the local community which provided the original reseource.39 The State must consider if such practice is in compliance with its human rights obligations to respect the rights of these local breeders or inventors. If the granting of exclusive rights results in reduced access to food, or 37 Pingali 2003, p. 265. 38 Directive 98/44/EC on the Legal Protection of Biotechnological Inventions. 39 Such sharing of benefits can be an obligation under national legislation, in accordance with Article 15.7 of the Convention on Biological Diversity, which applies the term ‘shall’ and the phrase ‘as appropriate’. Article 15.7 reads (extracts): “Each Contracting Party shall take legislative, administrative or policy measures, as appropriate […] with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources.”
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constrains the access to markets for the food for local and indigenous peoples, the State must observe its obligations relating to the right to food on the protect level. A correct application of the legal criteria listed in Article 27.1 is one means of responding to these concerns, as well as observing the relevant provisions on prior informed consent and benefit-sharing as recognized in treaties such as CBD and ITPGRFA.40 This section will, however, analyze another problem arising in the context of modern transgenic research, namely the patent scope. First, will the TRIPS requirements imply that the scope of the patent protection will extend to organisms where a patented gene is found? This concern has been raised in the context of genetically modified plants which might have superior characteristics, and hence replace non-modified plants. If the patented gene extends to all organisms where this gene is found, the scope of the patent can be very broad.41 Second, could TRIPS provisions, particularly Article 27.2 or 30, be applied in order to exclude from patentability or restrict the exercise of exclusive rights in such situations? The first concern will be analyzed. On the one hand, Article 27.3(b) of TRIPS does not require that plants are protected, only micro-organisms. Moreover, TRIPS does not require that protection of a gene extends to the whole organism where a gene is found. On the other hand, there is national jurisprudence which indicates a rather wide patent scope, even if plants are specifically excluded from patentability.42 This ruling from the Canadian Supreme Court is no direct consequence of TRIPS provisions. 40 In WIPO 2003c, p. 54, paragraph 141, there is a distinction between four different approaches towards the obligation to comply with the disclosure requirement relating to utilization of genetic resources: – encouragement; – formality with no sanctions; – formality with sanctions; – substantive ground for patent validity. Only the first of these is in compliance with TRIPS. 41 See Chapter 8.2.4 on the spread of transgenic crops via pollen. 42 It was confirmed in the Schmeiser case (2004 SCC 34) by the patentee (Monsanto) that under Canadian law, patentable subject matter does not include plants (see paragraphs 17, 138, 160 and 162) but two interveners held that a plant incorporating patented material might be patentable (paragraph 156), which was also the finding of the majority of judges at the Supreme Court (5-4), in paragraph 78. Moreover, it was held by the Supreme Court that both the facts and the scope of the patent are largely uncontroversial (paragraphs 59 and 15, respectively) and the minority of four held that the intention of the alleged infringer is irrelevant, as the liability is absolute (paragraph 157). A recognized volume on the law of patents (Thorley et al. 2000) was quoted: “…the knowledge or intention of the infringer is irrelevant” (paragraph 8.08; p. 200). See also Canadian Biotechnology Advisory Committee 2002, p. 14: “…intention to reproduce the invention is irrelevant.” The same report recommends that a new provision is included in the Canadian Patent Act, “…protecting innocent bystanders from claims of patent infringement with respect to adventious spreading of patented seed or patented genetic material…” (ibid.) Note in this context Busch 2002, p. 115, concluding with regard to transgenic products in general (not limited to the Schmeiser case) that even if the farmer did not plant the transgenic seeds, there is no “…guarantee that the farmer will be immune to liability when the transgene is translocated onto his lands.” For a critical assessment
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
The majority in the Supreme Court found that the fact that the farmer continued to replant, after discovering that he had pesticide-resistant plants on his field, represented use of the patented gene (the invention).43 Moreover, the majority found that the scope of the patent extended to the whole plant into which the patented gene was incorporated. This implied that Schmeiser was not considered an ‘innocent bystander’, as he continued to sow and cultivate, and hence ‘used’ the patented gene. When finding resistant canola in his fields, he should have asked Monsanto to remove these.44 Some observations must be made with regard to this example. Except for the US, the situation in Canada in the field of transgenic production is not characteristic for other States. If transgenic research becomes more widespread, however, the problem with adventitious spread of transgenic plants through pollen, can become a problem also in other parts of the world. The option presented by the Canadian Supreme Court of removing the plants might require clean-up operations not only once, as the transgenic plants are dominant, and therefore could germinate year after year.45 In the meantime, the farmer would be prevented from involvement in food production in those fields which are being cleansed. This represents a serious problem also with regard to the right to food. While TRIPS does not require that States follow the reasoning applied by the majority of the Canadian Supreme Court, it must be analyzed whether TRIPS includes provisions that can be applied in order to prevent such farmers from becoming infringers, provided that they might be characterized as ‘innocent bystanders’. Article 27.2 and Article 30 of TRIPS will be analyzed. The first allows for excluding patentability for inventions if this is necessary to protect plant health and life or to avoid serious prejudice to the environment. One the one hand it can be argued that the spread of dominant transgenic plants represents a situation where it could be necessary to protect naturally occuring plants. On the other hand, the requirements of Article 27.2 of TRIPS establish strict criteria for when an exclusion from patentability is justifiable: the necessity requirement (no other options are available), and the requirement that exclusion must not be made merely because commercial exploitation is prohibited by national law. It cannot be excluded that a situation might arise where a patented gene incorporated into a plant, making this plant an ‘invasive species’, can under certain circumstances be excluded from patentability.46 An alternative is that the regulatory authorities decide
43 44 45 46
of the decision in the Schmeiser case, applying the distinction between ‘classical property’ and intellectual property, see deBeer 2005, particularly pp. 9-13 and pp. 20-22; see also Aoki 2003, pp. 292-297. See Monsanto Canada Inc. v. Schmeiser (2004 SCC 34), paragraph 92. Ibid, paragraph 86. It is hence presumed to be easy to identify the patent holder as the responsible actor in such situations. It was seen in Chapter 2.3.5 that the introduction of GUR technology has been proposed as an effective way of controlling this problem. It should, in this context, be noted that canola is not included in the Global Invasive Species Database, which focuses on invasive species that threaten biodiversity; at <www.issg.org/database/welcome/>.
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that plants which can spread via pollen into farmers’ fields cannot be sold. Such authorities are equipped to identify situations where a transgenic plant effectively replaces traditional plants, representing threats towards biodiversity and the unhampered production of food.47 Reliable scientific data, as well as obligations imposed by environmental treaties, will be decisive, and obligations imposed by the right to food can be relevant.48 Below, we will analyze whether Article 30 allows for providing limited exceptions in such situations of adventitious spread of transgenic seeds, provided that the three requirements of Article 30 are fulfilled. The main question is whether a situation in which protected transgenic crops are found in a farmer’s fields as a result of involuntary spread, might be found to qualify as a legitimate exception under Article 30 TRIPS.49 Relating to this, it must be asked if a State which chooses to intervene in the exclusive rights of the patent holder based on Article 30, is acting in compliance with Article 30. A second question is whether the State is under an obligation to actually apply the limited exceptions provision of Article 30, based on an obligation to protect. It must be presumed that the farmer did not actively benefit financially from this situation, such as marketing or selling the seeds from his harvest. Each of these questions will be addressed below. With regard to the first question raised, whether a situation of alleged infringement resulting from the adventitious spread of transgenic crops might qualify for determining a legitimate exception under Article 30, it should be born in mind that there are still different opinions on the scope of Article 30. While Straus finds that Article 30 “…constitutes little more than flexible guidelines for the legislature and courts…”50 the Panel in Canada – Pharmaceuticals emphasized that the terms ‘normal exploitation’ and ‘legitimate interests’ both include economic considerations.51 Applied on the specific context of resowing protected seeds which have arrived in the fields involuntarily, and provided that the alleged infringer has not received any specific benefits by using the protected seeds, the holder of the rights cannot be expecting an economic return from farmers 47 It cannot be concluded that this is the situation for transgenic canola. There are, however, indications that transgenic canola spreads more easily than other crops; see Busch 2002, pp. 199-202; see also The Royal Society of Canada 2000, p. 129: “…each GM crop and transgene combination has to be considered separately…” The same report notes that canola – the product of Mr. Schmeiser – represents particular problems: “…herbicide-resistant volunteer canola plants are beginning to develop into a major weed problem in some parts of the Prairie Provinces of Canada” (ibid, p. 122). Moreover, there is “...gene exchange via pollen among canola cultivars resistant to different herbicides” (ibid, p. 122). 48 Both Rott 2002, p. 231 and Matsushita et al. 2003, p. 423. 49 The EC has said with regard to the applicability of Article 30 (IP/C/W/280, paragraph 14): …Article 30 amounts to a recognition that the patent rights contained in Article 28 (‘Rights Conferred’) may need to be adjusted in certain circumstances. The provisions of Article 30 should be fully respected, and be read in light of Article 7 and 8 […]. They should not be interpreted as allowing for any substantial or unjustified curtailment of patent rights. However, the EC and their member States are not in principle opposed to exceptions being made, for example, for purposes of research…
50 Straus 1996, p. 103. 51 WT/DS114/R, paragraph 7.49 applies the phrase ‘economic impact’. Paragraph 7.55 refers to ‘economic returns anticipated’ and paragraph 7.61 to ‘economic benefits’.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
who have made no efforts to obtain such protected material, either incidentally or by normal, commercial, means. Moreover, it is an unreasonable burden upon the farmer that he shall be responsible for cleaning the fields. Finally, it is a reasonable understanding of Articles 28 and 30 of TRIPS, seen in light of Articles 7 and 8, that the right holder enjoys the exclusive rights in relation to those farmers with whom this right holder has a legitimate expectation that no use, making or selling of the protected material – over which the right holder is exercising the exclusive rights – will be undertaken. There is no international jurisprudence on the limited exceptions in Article 30 of TRIPS and plant inventions. This implies that it is difficult to conclude definitively on whether Article 30 can be applied in order to exempt a farmer from liability in such situations. A reasonable interpretation of the three requirements of Article 30 is that limited exceptions are justified if they do not restrain the commercial benefits expected by the right holder. Article 30 can be interpreted flexibly enough as to allow for limited exceptions in situations where farmers are unaware that protected seeds are growing on their fields as a result of involuntary spread. Such limited exception does not represent any reduction of the economic benefits to the right holder. A State adopting legislation which includes provisions on limited exceptions, exempting innocent bystanders from liability in situations of adventitious and involuntary spread through pollen or otherwise, does not contravene Article 30 of TRIPS.52 Such limited exceptions protect farmers who never acquired or sought to acquire protected seeds. In these situations, a State which exempts a farmer from liability, based on specific exceptions provision in its legislation, acts in compliance with Article 30 of TRIPS. The national legislation and jurisprudence will have a decisive impact on how potential cases of adventitious spread of protected seeds are addressed.53 The second question raised above is whether the State, faced with a situation where a holder of a right seeks to enforce this right also with regard to farmers who allegedly are innocent bystanders, is under an obligation to apply the limited exceptions provision of Article 30. This is a no less complicated issue than the one raised above. Article 30 is a limited exceptions clause. The commercial expectations of the right holder was found by the Panel to be crucial in determining whether an exception falls within the scope of Article 30 or not.54 This indicates that Article 30 is applicable in only special circumstances. 52 See the Canadian Biotechnology Advisory Committee 2002, p. 14, which proposes an amendment to the Canadian Patent Act to protect innocent bystanders from patent infringement claims. 53 In the Monsanto v. Schmeiser case (2004 SCC 34), the majority of the Canadian Supreme Court were of the opinion that the protection extends to the plants into which patented genes are incorporated: “…where a defendant’s commercial or business activity involves a thing of which a patented part is a significant or important component, infringement is established. It is no defense to say that the thing actually used was not patented, but only one of its components” (paragraph 78 – emphasis added). It is acknowledged in paragraph 79 that this is an ‘expansive doctrine’ in the understanding of the patent scope. It is not given under which circumstances a patented gene is actually a ‘significant or important component’ of the plant. 54 WT/DS114/R, paragraphs 7.49, 7.55 and 7.61.
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At the same time, a right holder is primarily enforcing the exclusive rights in relation to those involved in commercial exploitation of a patented invention. Therefore, a farmer finding that transgenic plants grow on his fields without actually seeking to exploit this for his own benefit, cannot be considered as being involved in commercial exploitation. Rather, this farmer is to be protected against the possible effects of a right holder seeking to exercise the exclusive rights vis-à-vis the farmer. Article 30, read in light of Articles 7 and 8, could provide a basis for national provisions on such limited exceptions, including innocent bystander provisions. Returning to Article 27.2 in this context of invasive species, there can also be reasons to argue that exclusion of invasive species from patentability might be an option under certain serious circumstances, keeping in mind the strict requirements for the application of this provision. Moreover, the State is under an obligation to comply with other international legal obligations, including the legal obligations imposed by the right to food. If enforcement of exclusive rights through results in unintended consequences for farmers risking legal liability in a manner through which both their legal certainty and their adequate standard of living are being threatened, the State can be under an obligation to protect these farmers. This could be done by the adoption of new guidelines, regulations or laws. Part III measures: Finally, under this section on the measures taken in accordance with TRIPS, three provisions of Part III of TRIPS will be analyzed. Particularly in Part III, TRIPS contains detailed legal and administrative provisions. Intellectual property rights, recognized in the TRIPS Agreement, depend upon enforcement of the rights. The taking of measures under Part III of TRIPS cannot go beyond and be read independently from the substantive rights which TRIPS recognizes in Part II. In order to analyze the relationship between the two treaties on the level of measures (second category of conflict), the actions prescribed by the specific provisions of Part III of TRIPS must also be analyzed. This applies particularly to any measures which affect the availability and/or accessibility of vital products for the realization of the right to food. While the term ‘measure’ refers to various actions, this book will focus on how the State is under an obligation to remove and destroy infringing products.55 The most explicit articles in this regard are Article 46 on other measures for deterring infringement, Article 59 on remedies and Article 61 on criminal procedures regarding infringement. It will be analyzed whether the measures prescribed by these provisions, relating to the destruction of infringing products, might impede on the taking of measures prescribed by the International Covenant on Economic, Social and Cultural Rights. It was found in Chapter 8.3 above, that Articles 59 (‘destruction or disposal of infringing goods’) and 61 (‘seizure, forfeiture and destruction of the infringing goods’) sets down the most wide-ranging measures of the three, as they give the possibility for destruction of goods. It was also found that the three provisions do not impose an
55 This implies that there will be no analysis of other provisions of Part III, including how the State might order injunctions (Article 44) or damages (Article 45) when faced with infringements.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
obligations on the State to actually destroy infringing goods, only that the competent authorities shall be entrusted with the authority to make such orders. While Article 61 applies generally, it refers particularly to copyright and trademark. Therefore, while the application of this provision in relation to protected seeds or the harvest grown from protected seeds cannot be excluded, this provision applies particularly to counterfeiting taking place, inter alia, in the music or clothing sector. Article 61 is applicable to more serious infringements than Articles 46 or 59, and therefore has a more limited application. Hence, there are higher thresholds for applying Article 61, compared to Articles 46 and 59. Furthermore, for the purpose of this study, it must be asked whether this ‘seizure, forfeiture and destruction of the infringing goods’ will take place in a manner which affects the enjoyment of human rights. Physical and economic accessibility to goods such as medicines and seeds is considered crucial in order to enjoy the rights to the highest attainable standard of health and the right to adequate food, recognized in Articles 12 and 11 in the Covenant, respectively. If access to cheaper goods is substantially reduced as a result of decisions in accordance with Article 61 of TRIPS, this can affect the enjoyment of the respective human right for those who depend on such cheaper purchases. The courts must ensure a balance between the interests of the holder of the intellectual property rights and the interests of those who will be worse off as a result of the reduced availability and accessibility of the relevant products. It cannot be presumed, however, that human rights obligations are given similar emphasis as the securing of the interests of the right holder. This assessment is also related to the role and profitability of the counterfeiting industry.56 It must also be noted that dependency upon counterfeit goods is not likely to be a viable strategy in the long term. Goods which are produced in a way in which Articles 46, 59 or 61 might be applicable cannot be presumed to satisfy the requirements for safety assessment or proper information or labeling, as they are traded in a clandestine manner. Furthermore, those products which are patented are likely to be superior to the non-protected products, building upon the newest scientific research.57 This will affect the enjoyment of Article 15.1(b) of the Covenant on the right to enjoy the benefits of scientific progress and its applications. The main beneficiaries of any industry of infringing goods are not necessarily the consumers of such goods, but its producers. It cannot be ruled out that both consumers of seeds and consumers of medicines might be exposed to higher costs when access to generic products are effectively curtailed. While there are arguments both in favor and against the use of cheaper generic products from a human rights perspective, there might be situations in which any destruction of generic products is undertaken in a manner that is found to have serious 56 The predictability for the holders of the patent right, as well as the need to curb infringing activities has been fundamental premises for the court cases with regard to patents. In addition, the economic effects of the granting of patents have not been seriously assessed (see EPO’s Enlarged Board of Appeal in NovartisII / Transgenic Plant case (G01/98), paragraph 3.9). 57 This is also analyzed by Pires de Carvalho 2005, pp. 117-118 in the context of parallel imports.
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negative human rights consequences, particularly with regard to the human rights crucial to uphold life, such as food and health. This could be the situation if there are no reasonably available alternatives – either in physical or economic terms – for those who depend on the access to the generic products. This is a more frequent situation in the field of medicines (right to health) than in the field of seeds (right to food). Nevertheless, the obligation to provide hungry people with food, which is an obligation on the fulfill level, must be observed. One basis for adopting such measures is Article 31(b) of TRIPS. TRIPS states that infringing goods might be destroyed, but this obligation applies particularly to copyright and trademark infringements. Destruction of infringing food crops is less likely than the payment of adequate compensation to the right holder, as well as the halting of the infringing activity. It is not found that the provisions of Part III of the TRIPS Agreement necessarily implies that the taking of the measures prescribed by the Covenant will be impeded. Rather, the State must observe its obligations with regard to the right to food when decisions relating to infringing products are carried out. Summary: This section has sought to identify potentially problematic provisions in the TRIPS Agreement, with a particular emphasis on how these provisions affect the taking of measures under the Covenant. Provisions for the availability, scope and use of patent and plant variety rights as defined in Part II (particularly the substantive and procedural requirements), as well as the enforcement provisions of Part III (in particular the destruction of infringing products) have been emphasized. It is found that TRIPS-compliant legislation can be applied in a manner which does not impede the general taking of measures to ensure the right to food, and to ensure a balance between producers and users of new plants and plant varieties, and different kinds of innovators. Moreover, TRIPS does not set out standards of protection which necessarily restrict the rights of farmers to continue to grow their farm-saved seeds, and with regard to protected seeds, TRIPS does not prevent a State from including provisions in national legislation which allow such resowing (farmers’ privilege).58 The scope of including such provisions is potentially wider under an effective sui generis system for the protection of plant varieties. Also such a system requires – provided a repeated use of the protected variety – the authorization from right holders for the commercial production of another variety.59 With regard to the three levels of obligations, particular concerns have been identified regarding the fundamental human right to food in the analysis above. First, on the respect level, the traditional farming practice should not be impeded, and farmers’ command over food should be ensured. Nor should the interests of farmers be disregarded when exclusive rights are granted on material derived from products by these informal inventors. Second, on the protect level, the farmers risking legal liability for unjusti58 The State authorities should therefore carefully inform about the consequences for the farmers in choosing patent protected seeds. 59 This is based on the wording of UPOV 1978 Article 5.3 which in Chapter 9.2.6 was found, together with the other paragraphs of Article 5 of UPOV 1978, to constitute a minimum requirement for exclusive rights under an ‘effective sui generis system’ for the protection of plant varieties.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
fied accusations of patent infringements should be protected, provided that they are innocent bystanders, and that they should also be protected if they are denied access to food or access to markets for the food. Third, on the fulfill level, the State should both improve methods of food production (facilitate) as well as food distribution (provide). All of these are important observations with regard to State obligations. Furthermore, lack of observance and taking of measures in order to meet these obligations, might represent violations under specific circumstances, particularly if there is also an element of discrimination involved. It is not found that the TRIPS provisions by necessity prevent a State from adopting appopriate measures in order to fulfill its obligations on all three of these levels. National legislation and implementation might go beyond TRIPS and adopt higher and less flexible standards of patent and plant variety protection in a manner which could be less compatible with the Covenant, but TRIPS provides sufficient flexibilities in order to adapt legislation to national circumstances, as well as treaty obligations arising under other treaties to which the State is bound. 12.2.3
Adopting Measures as Prescribed by the Covenant and the Compliance with TRIPS
The taking of measures, in accordance with Article 11.2 of the International Covenant on Economic, Social and Cultural Rights, is crucial for the realization of the right to food, and the taking of these measures constitutes State obligations under the Covenant. We will analyze the extent to which the Covenant can be understood to prescribe measures which restrict the exclusive rights of the patent holder and impede the taking of measures in compliance with the minimum standards provided by TRIPS. With regard to all human rights recognized in the Covenant, there are obligations of conduct (focusing on the means) and obligations of result (focusing on the ends). The use of the explicit terms of Article 11 (‘ensure’ and ‘shall take measures’) implies that the obligation of conduct must be emphasized. Therefore, States must take measures, basically measures relating to improving methods of food production, conservation and distribution, in particular if the right to be free from hunger is threatened.60 A wide range of measures are available in order to allow everyone to exercise this right. This is also confirmed by the Limburg Principles, which declare that a State party is in violation of the Covenant if it fails to take a step which it is required to take by the Covenant.61 With the exception of the right to food and the right to health, which both list the measures or steps, no other measures are listed.62 Article 2.1 states that each State 60 This is based on the emphasis in Alston 1984, p. 35, finding that these three are ’principal objectives’ or ‘main objectives’. The ‘secondary or complementary objectives’ are: making full use of technical and scientific knowledge; disseminating knowledge of the principles of nutrition; and developing or reforming agrarian systems. 61 E/CN.4./1987/17, paragraph 72. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights lists violations, in Part 1D, while the Maastricht Guidelines focuses solely on violations. 62 General Comment No. 13 on the right to education, must be considered to presume that the measures are implicitly recognized in the Covenant, as the Committee states in paragraph 59
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party ‘undertakes to take steps with a view to achieving progressively the full realization of the rights recognized’. This general obligation applies naturally to all rights. In addition to measures relating to food production, one particular measure which has been analyzed in Chapter 5.1.5 is of particular interest: resource-based distribution. In light of Articles 2.1 and 11.1 of the Covenant, as well as the General Comment No. 12, ‘distribution of food’ also implies physical access.63 As found in Chapter 5.1.5, such distribution must also be understood as distribution of food-producing resources. Core content of the right to food and related principes: ‘Command over food’ was identified as an important component of the right to food in the first Report on the right to adequate food by the Rapporteur of the Sub-Commission.64 This approach, however, was not emphasized in General Comment No. 12 on the right to adequate food.65 The Committee rather identified availability and accessibility, as well as cultural acceptability, as the core contents of the right to food. It is found that the command over food is particuarly important in the context of discussing patents on food biotechnology. Command over food is understood as a situation in which a farmer decides herself, alternatively in consultation with other farmers, how to conduct her farming, including how to obtain seeds and other inputs, as well as how to use the harvest, including propagation efforts. Therefore, we will analyze such command over food. The State parties to the Covenant shall take any measure available in order to ensure that everyone has appropriate access to adequate food. If the access to food is impeded, the State must both identify the factors causing the impediments, and take appropriate measures in order to remedy this situation. Particular attention should be devoted to the vulnerable and marginalized groups of society. In the Guidelines for State reporting, the State parties are asked to provide information on hunger and/or malnutrition among ten identified groups, as well as ‘other especially affected groups’.66 Most of the persons in these categories identified are living in rural areas, and this emphasis is justified simply as a result of the fact that overwhelming majority of hungry people live in rural areas where the food is acually grown.67 Patented seeds imply that the growers are becoming more dependent upon the providers of the seed (affecting the command over food). In accordance with the farmers’ privilege, they can continue to replant protected seeds on their own holding, but will eventually turn to the seed industry for being provided seed as the seeds gradually have lower yields. Moreover, farmers in general, but particularly those who have purchased protected seeds, become more dependent upon effective markets through which their
63 64 65 66 67
that violations include: “failure to take deliberate, concrete and targeted measures towards the progressive realization…” See also Sucharitkul 1994, pp. 381-382, using the term ‘access’ when analyzing distribution of food under Article 11.2(a) of the Covenant. E/CN.4/Sub.2/1987/23. UN doc E/2000/22, pp. 102-110. UN doc. E/1991/23, pp. 88-110, Article 2(b) under Article 11. Seventy per cent of food-insecure people live in rural areas (Pinstrup-Andersen and Cohen 2000a, p. 160).
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
increased costs of producing food can be recovered (affecting the economic accessibility to food). The overall tendency is toward a “…contraction of the subsistence-oriented farming sector and a corresponding expansion of commercial production sector …”68 The physical accessibility to and the general availability of food cannot, however, be considered to be affected, except for the unlikely circumstance that traditional seeds have effectively been replaced, and owners of protected seeds are not able to provide these protected seeds for various reasons. While this represent a particular concern – and will be elaborated in more detail in Chapter 12.3 below – such situation does, in principle, not prevent the State from undertaking resource-based distribution of food to those who are neither able to grow food themselves nor able to buy food on the market. In practice, however, except for the granting of compulsory licenses, the State might not have effective measures available in a situation where only private actors are providers of food or seeds for food production. The obligation to take effective measures for the full realization of the right to food, can in such situations be difficult to comply with. At the same time, this is not a necessary consequence of the implementation of TRIPS. Will measures for realizing the right to food impede on TRIPS implementation? There might be conflicts on the level of measures only if the measures taken under the Covenant directly impede on the effective protection of the subject matter regulated by TRIPS. The State does not contravene its TRIPS obligations if the State actively promotes non-protected products through research, delivery (extension services) or education awareness campaigns. It is a different issue if the State behaves in a manner in which the rights derived from patent or plant variety protection – as provided for in TRIPS – cannot be sufficiently exercised. Such a situation might arise if the State is involved in developing seeds which are falling within the scope of the protected seeds or plant variety, and therefore infringe upon the exclusive rights of the right holder. Such promotion could be permitted if the seeds are introduced on the market of another State by the right holder or with his consent and then imported into the relevant State, in accordance with TRIPS footnotes 6 and 13; see also Article 6. Regarding plant variety protection, if a State is party to UPOV 1991, Article 16.1 must be observed.69 Most public measures taken in accordance with the Covenant do not raise any problems with regard to the measures taken in accordance with the TRIPS Agreement. The resource-based distribution of food in order to improve accessibility, the production of food in order to improve availability, or the appropriate participatory-based regulation of food in order to improve cultural acceptability, are all not problematic under TRIPS. We will analyze four different measures taken under the Covenant, in order to assess their compatibility with TRIPS.70 These measures are based on different provisions of the Covenant: resource sharing (Articles 2.1 and 11); scientific knowledge and scientific 68 Morris and Ekasingh 2002, p. 205. 69 According to Article 16.1 UPOV 1991, exhaustion of breeders’ rights does not take place if there is an export of a protected variety to a State which does not protect this variety – unless the exported material is for consumption purposes [16.1(ii)] – or if the acts involve further propagation of the variety [16.1(i)]. 70 This categorization is based on WWF and CIEL 2001.
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applications (Articles 15.1(b) and 11.2(a)); natural resource utilization and conservation (Articles 1.2 and 11.2(a)); and respect for culture and traditional knowledge of local communities (Articles 15.1(a) and 15.1(c)). The scope of the measures is taken directly from the Covenant. How the State is able to effectively take the appropriate measures to ensure the enjoyment of these human rights is central in the analysis below. The measures are crucial for safeguarding the minimum threshold for a dignified life, based on agreement of what is required to sustain human integrity and life for everyone. a) Resource-sharing: Article 2.1 only applies the phrase ‘available resources’, but when this term is applied together with both the phrase ‘adequate standard of living’ in Article 11.1 and the phrase ‘international assistance’ in Article 2.1,71 a general obligation is identified to secure resources that allow also the impoverished and marginalized to enjoy their human rights. There are at least four levels on which resource-sharing could be introduced: on the international level, the State level,72 the regional or community level, and on the household level. As Article 2.1 includes the phrase ‘international assistance’, this could include providing of external resources. The specific act of resource-sharing has, however, a rather weak recognition in the Covenant. Hence, while international cooperation is recognized in several provisions, this does not entail a general obligation of resource-sharing in the Covenant.73 With regard to the more specific measure of benefit-sharing to the providers of the original material from which patented inventions are derived, there are no precise obligations in the Covenant.74 The Covenant applies the term ‘benefit’ both in Article 15.1(b) and 15.1(c), but neither of these refers directly to obligations concerning benefit-sharing to the ‘original providers’. Therefore, as there are no explicit provisions on benefit-sharing or compensatory measures in the Covenant (and neither in TRIPS),75 a conflict be71 The Committee confirmed that the wording of Article 2.1 implies that the phrase ‘maximum of its available resources’ refers to “…both the resources existing within a community and those available from the international community through international assistance and cooperation” (General Comment No. 3 (UN doc. E/1991/23, pp. 83-87, paragraph 13). See also Skogly 2003. 72 It is important to note that the granting of a biotechnology patent will reduce the value of the original resource, implying less potential for revenues for the country of origin; see Fauchald 2000, p. 147. 73 Of relevance in the context of resource-sharing, delegations emphasize that public spending is subject to democratic process and national policy-making (see, inter alia, paragraph 22 in UN doc. E/CN.4/2004/44). 74 This is unlike the CBD and the ITPGRFA, which have specific provisions on benefit-sharing, see Article 15.7 (as developed in the Bonn Guidelines on access and benefit sharing, adopted in 2002 (UNEP/CBD/VI/24)), as well as Article 19.2 of CBD, and Articles 13.3 (identifying ‘farmers who conserve and sustainably utilize such resources for food and agriculture’), and 18.5 of ITPGRFA. 75 As stated in a document before the Committee on Trade and Environment in 1995 (WT/ CTE/W/8, of 8 June 1995, paragraph 79): “The TRIPS Agreement is silent on the participation of countries/communities in the benefits arising from the use of the technology based on genetic resources originating in their territories. There is also nothing that stands in the
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
tween the two treaties on the issue of resource- or benefit-sharing cannot be identified.76 In this situation, other treaties (CBD and ITPGRFA) are more specific. b) Measures relating to scientific knowledge and scientific applications: It should be noted that the two Articles in the Covenant which address scientific knowledge also include provisions on international cooperation. Both Article 11.2 and Article 15.4 can hence provide for measures relating to transfer of technology. Moreover, on the national level, Article 11.2(a) on improving methods of food production and Article 15.1(b) on scientific progress and its applications clearly indicate an active role of the State in technology policy, but these two paragraphs do not specify how the State shall organize or facilitate scientific efforts. While public agricultural research efforts are obviously important, private agricultural research efforts can by no means be excluded. Irrespective of which balance is sought between national and international, public and private efforts, the State is under an obligation to ensure that the results of scientific efforts are made available for the realization of human rights, more specifically that availability, accessibility and acceptability of food is secured. Regarding international scientific cooperation, recognized in Article 15.4 of the Covenant, the wording is too general to impose specific obligations. Other treaties have more specific provisions.77 Three WTO scholars have analyzed the co-existence between the CBD and TRIPS, particularly regarding transfer of technology, as they identify precisely technology transfer as the “…most difficult potential conflict between the TRIPS Agreement and the Convention on Biological Diversity…”78 Faced with the alleged potential conflict between the CBD and the TRIPS Agreement, it must be emphasized that the relevant provisions of the CBD are phrased in general terms.79 Based on the actual
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way of contractual arrangements between countries and companies seeking to use genetic resources from those countries, public transfer of funds or any other mechanism compatible with its provisions.” Therefore, TRIPS prevents no measure relating to benefit-sharing. There are general obligations on international assistance that can be read out from the Covenant, but the scope of these obligations is not clear; see Skogly 2003. Both Article 16 of CBD and Article 13.2 of ITPGRFA concern access to and transfer of technology. Both CBD and ITPGRFA explicitly refer to developing countries in the area of technology transfers, emphasizing their need for concessional access. Moreover, there are provisions on effective research participation (CBD Article 19.1 and ITPGRFA Article 13.3). Matsushita et al. 2003, p. 417, identifying the following requirements of the CBD on transfer of technology to developing countries as potentially conflicting with the non-discrimination provisions of TRIPS: priority access, preferential terms and requirements of joint research projects, based on CBD Articles 15.7; 16.2 and 16.3; and 19.1 and 19.2, as TRIPS does not require any of these. The relevant provisions of the CBD which regulate technology transfer apply phrases such as ‘as appropriate’ (Article 15.7, 16.3 and 19.1), and ‘ transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights’ (Article 16.2), as well as ‘practicable measure’ (Article 19.2). While these paragraphs point toward specific measures, the paragraphs are phrased in a manner in which the taking of the measures cannot be considered mandatory.
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wording of the five paragraphs of the CBD identified as problematic by Matsushita et al.,80 a conflict between the CBD and TRIPS if difficult to identify. Likewise, it is not found that a potential conflict with TRIPS arises under the Covenant. The wording of the relevant paragraphs of Articles 2, 11 and 15 indicates that all should benefit from the enjoyment of scientific applications – for their human rights enjoyment. It is acknowledged, however, that there might be one strategy that the State can pursue in order to adopt the prescribed measures of the Covenant which might be impeding on the taking of measures in compliance with TRIPS. This situation arises if the State itself is actively involved in the promotion of generic products to the detriment of protected products, or unjustifiably revokes patents, without observing the provisions of Articles 31 and 32 of TRIPS. Only under special circumstances, such as lack of provisions of a necessary good due to patent or plant variety protection, should a State resort to measures in accordance with Articles 31(b) and 32 of TRIPS in order to meet the requirements of Articles 11.2(a) and 15.1(b). Under such circumstances, it must be presumed that there is general understanding that such measures were actually necessary, and such circumstances must be considered to give rise to human rights obligations on the level of protect. Therefore, the taking of measures under the Covenant with regard to scientific applications for the enjoyment of human rights will not – except from such urgent circumstances – impede on the taking of measures in order to implement TRIPS. c) Measures relating to natural resource utilization and conservation: The phrase ‘most effective development and utilization of natural resources’ as applied in Article 11.2(a) cannot be understood to refer to ‘exploitation’, but to the sustainable utilization of the resources over time. Moreover, the obligations to ensure that peoples are not “…deprived of its own means of subsistence”, as stated in Article 1.2 of the Covenant, must be observed in the context of natural resource utilization. Exclusion from patentabiliy in order to ‘protect human, animal or plant life or health’, or because an invention might represent a ‘serious prejudice to the environment’ is provided by TRIPS Article 27.2.81 The wording of the Covenant, while providing important guidance with regard to natural resource management for the enjoyment of the right to food, is of a general nature. It cannot be excluded that the Covenant can be applied in a dispute as to whether a plant invention could become a threat toward human life or health, or toward the environment, should be excluded from patentability.82 There could arise two situations in
80 This is based on the fact that treaty norms can be reconcilable if “…one norm prohibits one or some, but not all, manners in which the other norm can be performed” (Sadat-Akhavi 2003, p. 43). 81 Article 27.2 of TRIPS reads: “Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre€public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.” 82 See Chapter 10.2.3; see also Rott 2002, p. 231 and Matsushita et al. 2003, p. 423.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
which the relationship between the Covenant and the TRIPS Agreement is particularly contentious and potentially conflicting. First, how shall TRIPS Article 27.1 prohibiting discrimination in the field of technology be understood?83 The fact that TRIPS does not exclude any field of technology, and also provides for protection of plant varieties, implies that TRIPS promotes modern varieties, which are held to undermine biological diversity.84 Moreover,while TRIPS is more recent and regulates the subject matter in a rather detailed manner,85 TRIPS does not define terms such as ‘micro-organisms’ which is held to give some flexibilities regarding what can be excluded from patentabilty.86 Moreover, the WTO Panel has stated that Article 27 does not prohibit bona fide exceptions.87 This indicates that the highest level of protection should not be strived for. Other obligations and interests must be taken into account when adopting legislation to implement TRIPS. Second, there might be situations where one party to a dispute discourages the patenting of a new plant, based on human health and environmental concerns, arguing that Article 27.2 of TRIPS should be applied in order to exclude the invention from patentability. Particularly if this argumentation is based on human rights concerns,88 based on the State obligation to protect, the dispute between the two parties will also be relevant to the relationship between the Covenant and the TRIPS Agreement. The other party to the dispute can argue that Article 27.2 of TRIPS is non-applicable, calling for the patentability of this particular invention.89 A definitive conclusion regarding this situation is difficult to give, as the scope of Article 27.2 is narrow, but nevertheless wider 83 Such disregard of the TRIPS provision, more specifically Article 27.3(b), on the patentability of micro-organisms, has been found with regard to the implementation of the CBD; see Hassemer 2004, p. 195, finding that the Costa Rican Biological Diversity Act (Law 7788) defines biological diversity in too wide terms, so as to also include intangible elements, and moreover excludes DNA sequences from patenting, hence making the law incompatible with TRIPS. 84 See Andersen 2004, p. 44, addressing effects of the introduction of plant variety protection in Brazil: “Whereas the introduced varieties may have increased and improved production, at the same time they crowded out local varieties, contributing to further genetic erosion.” 85 Therefore, both lex posteriori and lex specialis indicate that TRIPS will prevail. 86 The view expressed by Correa 2002b, p. 530, (‘[d]ifferent choices should be preserved in relation to the patentability of biological material, particularly genes’) is contentious, if his position is understood as to allow for a general prohibition of patenting of genes. 87 WT/DS114/R, Canada-Pharmaceutical, paragraph 7.92. 88 Such concerns could also include the alleged threats toward the means of subsistence of a particular people, in accordance with Article 1.2 of the Covenant, even if such threats are not directly relating to the necessity ‘to protect human, animal or plant life or health or to avoid serious prejudice to the environment’. Moreover, it cannot be excluded that issues of morality might be involved. 89 If such complex disputes are brought before the Panel and Appellate Body, deference to the national priorities of the first party can be exercised, and the Panel could also find that it is not competent to resolve the dispute. If the Panel accepts to take on the dispute, and subsequently finds that Article 27.2 does not apply, the recommendation to first party would be that the invention must be patentable.
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than Article 53(a) of the EPC,90 and as Article 27.2 of TRIPS has not been clarified in the dispute settlement system. At the same time, other governmental authorities, such as regulatory bodies, are as relevant at the patent office, and exclusion from patentability in accordance with Artice 27.2 of TRIPS is one of several options. In brief, TRIPS does not imply that the measures relating to natural resources as outlined in the Covenant become more difficult to implement, even if there are uncertainties on the actual scope of Article 27.2. d) Measures relating to respect for local cultures and authors from local or indigenous communities: In Chapter 6.1.3 above, it was found that defensive protection of the intellectual property of local and indigenous communities as applied on plant genetic resources, falls within the scope of human rights. Currently, however, there are no obligations as regards the positive protection. Article 15.1(a) is rather vague, but can be included in an analysis of Article 15.1(c) of the Covenant.91 The latter paragraph cannot be presumed to exclude informal innovators, but has not been the basis for any national law recognizing the applicable knowledge of local and indigenous communities.92 Any State which is member of the WTO can basically choose between two strategies when seeking to adopt legislation for the recognition of the intellectual efforts of people belonging to local and indigenous communities.93 Either the State can seek to ensure such recognition by applying one or more of the standards outlined in Part II of the TRIPS Agreement, primarily geographical indications or trade secrets. By choosing this strategy, the TRIPS requirements must be carefully observed. As there are presently no international treaty regulating traditional knowledge,94 States are deciding 90 See Sterckx 2005, p. 221. 91 Note also Article 27 of the International Covenant on Civil and Political Rights (‘the right to enjoy their own culture’), which also includes the material basis for this culture; see General Comment No. 23 of the Human Rights Committee, paragraph 7, emphasizing “...positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them...” 92 The national laws that seek to give effect to recognition of traditional knowledge are based on the CBD, particularly Article 8(j); see also three WTO communications (IP/C/W/403, IP/C/W/404 and IP/C/W/429). 93 For a good overview of intellectual property protection and traditional knowledge, see Posey and Dutfield 1998, Mugabe 1999, Laird (ed.) 2002, Stoll and von Hahn 2004, Cottier and Panizzon 2004 and Verma 2004. On national legislation, see WIPO 2002b, WIPO 2002c WIPO 2003a, the latter which identifies in paragraph 22 Brazil, Panama, Portugal and Peru as having legislation for the protection of traditional knowledge stricto sensu, and not only as protection of expressions of traditional knowledge. On the Peruvian Act, see Venero 2003. See Hassemer 2004 and Leistner 2004 for an overview of national and regional laws and regulations for the protection of traditional knowledge, and part three of Bellmann et al. 2003, on regional agreements, mostly Latin American, which regulate traditional knowledge (See Ruiz 2003 for the Andean Community and Medaglia 2003 for Central America). 94 The work of the Intergovernmental Committee on Traditional Knowledge, Genetic Resources and Folklore within WIPO might result in an international instrument. The WIPO General Assembly (WIPO 2003d), stated in paragraph 93(iii) that “…no outcome of its work
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
themselves whether they want to implement such provisions nationally. They can also choose to adopt a sui generis protection system for the recognition and protection of such knowledge.95 These strategies will result in increased command over the inputs for food production, and hence increased command over food. There are different opinions regarding the impact on both the production of food, as well as the exchange of genetic resources crucial for such increased production.96 As TRIPS is silent on such regulations, a State can adopt any legislation, provided that this does not negatively affect the TRIPS provisions, including its procedural requirements, implying that these provisions cannot be given effect. Therefore, measures can be taken under the Covenant without concern that they impede on measures prescribed by TRIPS. These measures can be based on the Covenant, as well as other treaties, and can ensure the recognition of the intellectual efforts of local and indigenous peoples, thus protecting their moral and material interests. Summary: It has been shown that there are several measures which must be presumed to contribute positively to the right to food. Such measures could be undertaken without concern that they might conflict with the effective protection of subject matter regulated by TRIPS. In those situations where a contentious relationship might be identified (promotion of generic products at the expense of protected products, or the exclusion of certain technologies), there is a certain room for flexible implementation in the TRIPS Agreement provided that the procedural requirements are observed and respected. State obligations regarding the fundamental human right to food on all three levels have been identified. First on the respect level, the State should provide for a means by which the intellectual efforts of local and indigenous people are at least ensured a defensive protection. Second, on the protect level, the State should ensure that new plants, which are believed to have negative consequences for human health and environmental concerns should be adequately examined, and that the efforts for improving food prois excluded.” For a proposal that traditional knowledge should be regulated in TRIPS, see the proposal from the African Group: IP/C/W/404. While criticism has been raised that the TRIPS Agreement only acknowledges some forms of intellectual property and ignores others, it should be remembered that at the stage of the negotiations of TRIPS, the concept of traditional knowledge was barely introduced, even in the academic literature. Books such as Intellectual Property Rights of Indigenous Peoples: A Sourcebook (Greaves (ed.) 1994), Widening Perspectives on Biodiversity (Krattiger et al. (eds.) 1994), Valuing Local Knowledge: Indigenous Peoples and Intellectual Property Rights (Brush and Stabinsky (eds.) 1996) and Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (Posey and Dutfield 1996) all came in the aftermath of the Convention on Biological Diversity, which was the first treaty to recognize the term in an international legal document. Articles on indigenous peoples and intellectual property before this had mostly addressed compensation for indigenous peoples, and not dealt with the legal recognition of their intellectual efforts. 95 The Portugese Decree Law No. 118 and the Indian Protection of Plant Varieties and Farmers’ Rights Act No. 53 are two examples of such sui generis systems, which do not have to meet TRIPS requirements. 96 Ramanna and Smale 2004, p. 439.
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duction are not unjustifiably impeded by a patent holder exercising his or her exclusive rights. Third, on the fulfill level, there is an obligation to ensure resource-based distribution, as this is important for realization of human rights, both on the national and the international level, within the limits of a State’s available resources. It is difficult to identify obvious conflicts between the Covenant and the TRIPS Agreement, as there are several ways to meet the obligation under the Covenant of taking measures, and as there is a limited scope of TRIPS, extending only to minimum standards concerning inventions and plant varieties.97 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 It is difficult to identify a conflict between the two treaties both on the level of obligations (first category of conflict) and on the level of measures (second category of conflict). These findings do not necessarily imply that the relationship between the two treaties is unproblematic. The two treaties might work in different directions, and the short-term implementation of the Covenant might become more difficult as a result of the implementation of TRIPS. The taking of measures for the realization of the right to food is crucial,98 and full realization of human rights is a purpose of the Covenant. Moreover, the above conclusion is based on the actual provisions of the treaties, which have been found to give room for a certain flexibility.99 The observation that provisions of TRIPS can be applied in a flexible manner has been recognized in WTO publications,100 but has not been adequately confirmed by the dispute settlement system. This study focuses on the treaty provisions, and does not intend to test whether States are applying the flexibilities inherent in TRIPS.101 It is the responsibility of States to make use of these flexibilities – for the benefit of their citizens. Obligations imposed by human rights should be more actively taken into account in the clarification of the TRIPS provisions, including understanding the scope of the limited exceptions provision of Article
97 See Sadat-Akhavi 2003, p. 7, identifying causes of conflict. A general example of a conflict situation could be when there are two agreements, one free-trade agreement with a particular State and one agreement establishing a sanctions regime against the same State, are implemented at the same time. 98 Sucharitkul 1994, p. 395. 99 This applies also to defining the legal criteria for patent protection; see Plahe and Nyland 2003. 100 In the 2003 World Trade Report, the WTO secretariat writes: “Taking into account the considerable flexibility in designing and implementing national standards to implement the requirements of the TRIPS Agreement…” (p. 167), and “…the end result was the incorporation into the TRIPS Agreement of a considerable amount of flexibility” (ibd, p. 171). 101 See Lang 2004, p. 806, for a distinction between ‘direct legal effects’ (the scope of this book) and factors which “…operate to concentrate governmental energy and resources […] to the detriment of other issues…” (concerns raised in this particular section of the book).
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30.102 It is confirmed by the Appellate Body that characterizing a treaty provision as an ‘exception’ does not by itself justify a stricter or narrower interpretation of that provision.103 Furthermore, public interest concerns can be read out from Articles 27.2, 27.3, 30, 31(b) and 32 of TRIPS. As it is difficult to identify conflict between the provisions, can there nevertheless be a conflicting relationship between the two as a result of the different objects and purposes of the two treaties? The Covenant’s object, as set out in Article 2.1, is the recognition of human rights whose realization depend upon measures taken individually and through international cooperation, especially economic and technical, to the maximum of its available resources and by all appropriate means, including particularly the adoption of legislation. The purpose of the Covenant is the full realization of the human rights recognized in the Covenant. For the purpose of this treaty, it is not found necessary to assess the object and purpose of the Covenant in greater detail.104 The object of the TRIPS Agreement can likewise be defined as the following: to establish legal standards concerning the availability, scope, use and enforcement of intellectual property rights in order to give effect to the provisions in the TRIPS Agreement,105 and hence promote innovativeness.106 The purpose of TRIPS is even more complicated.107 The term ‘objectives’ of Article 7 implies that this Article must be crucial in any identification of the purpose of TRIPS. Therefore, the following purpose of TRIPS can be 102 See Matsushita et al. 2003, pp. 427-428, finding that Article 30 has not been appropriately clarified, as the only report addressing Article 30 (Canada – Pharmaceuticals, WT/DS114/R, paragraphs 7.93-7.105) erred by stating that the non-discrimination provision of Article 27.1 also applied to Article 30, despite the fact that Article 30 does not state that exceptions shall be applied non-discriminatorily. 103 WT/DS26/AB/R and WT/DS48/AB/R (EC – Hormones), paragraph 104. See also EC – Tariff preferences (WT/DS246/R, paragraph 7.52): “…the importance of the protection of human life or health pursued under Article XX (b) is in no way reduced by the characterization of Article XX as an exception.” 104 Buffard and Zemanek 1998, p. 342, find that “…the object and purpose of such general human rights conventions are too vague to be a helpful guide for interpretation of other treaty provisions or for assessing compliance with them…” They find, on the other hand, that the object and purpose is easier to identify in human rights treaties regulating and prohibiting discriminatory practices, such as the Convention on the Elimination of all Forms of Discrimination Against Women. 105 Based on Article 1.1, as well as the titles of Part II and Part III of the TRIPS Agreement. 106 The High Commissioner for Human Rights says: “…the overall thrust of the TRIPS Agreement is the promotion of innovation through the provision of commercial incentives” (SubCommission 2001d, paragraph 22). 107 Observe in this context that the Agreement between the United Nations and the World Intellectual Property Organization of 1974, in which WIPO was recognized as a specialized agency of the UN, states in Article 1 that WIPO is responsible for “…promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development…” The 1974 Agreement does not mention anything concerning the promotion or protection of intellectual property per se.
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identified – at least as far as patent protection is concerned: to ensure the enjoyment of patent rights in order to reduce distortions and impediments to international trade (TRIPS preamble) as well as to promote technological innovation and the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare (Article 7 of TRIPS).108 A strict interpretation has been established by the WTO adjudicating bodies.109 A strict literal approach, however, can also be reconciled with a stronger emphasis on a treaty’s object and purpose.110 It is difficult to draw specific conclusions as to whether the object and purpose of the TRIPS and the Covenant are directly conflicting, as there are uncertainties, particularly with regard to the economic effects. Moreover, the potential benefits of the TRIPS Agreement will materialize only in the future.111 The two treaties, however, have different objectives, as TRIPS provisions identify measures to be taken to ensure exclusive control over new products, while the Covenant emphasizes measures to ensure access to these new products.112 In accordance with Article 11.2(a), the State parties shall ensure that when adopting measures for increased food production, the measures for distribution of food shall also be prioritized. The ‘perspective from below’, introduced in Chapter 12.1 and reflected in Chapter 12.2 implies that the interests of the most vulnerable must be given emphasis when faced with potentially conflicting rights of individuals. When the interests of the most vulnerable are given a legal expression in the form of recognized human rights, these interests must be protected. Human rights provisions represent vital interests, but have not yet been explicitly taken into account in relation to TRIPS. In this context, note the lack of legal remedies regulating human rights, particularly the right to food.113 Intellectual property rights 108 Based on the first paragraph of the preamble and Article 7 of the TRIPS Agreement. 109 One of the reasons for this emphasis on the term of the treaty, are the much-criticized decisions in the US – Tuna dispute (GATT Doc. DS 29/R, 16 June 1994 [not adopted]), in which the purpose of the GATT 1947 was interpreted as to restrict the use of Article XX. The Panel stated in paragraph 5.25 that it sought to “…preserve the basic objectives and principles of the General Agreement.” This implied that Article XX(g) of GATT 1947 was not found to be a legitimate exception is this case. 110 Blackett 1999, analyzing WTO jurisprudence concludes on p. 68: “The provisions can be analyzed independently, to obtain a sense of the policies and interests embedded in them.” She finds that this represents ”…a more complex, but arguably persuasive interpretation of a treaty’s object and purpose.” 111 There might be immediate positive effects on the rule of law resulting from an effective system of intellectual property protection, but it is not intended to analyze this in more detail. 112 See Article 11.2(a) on improving methods for the production and distribution of food by making full use of scientific and technical knowledge and Article 15.1(b) on the right to enjoy the benefits of scientific progress and its applications. In this context, however, note Robinson 1971, p. 87, finding that “…by slowing down the diffusion of technical progress it ensures that there will be more progress to diffuse.” 113 van Hoof 1984 p. 101 notes that “…such legal remedies are desirable because they may considerably enhance the effectiveness of the rules concerned…” In the Covenant, legislation
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
should, however, be managed in order to contribute to the higher objectives that human rights represent.114 At a minimum, States should not take upon themselves obligations that can impede the taking of measures under the Covenant which are crucial for the realization of the rights. There are three areas in which the lack of taking appropriate measures – resulting in lack of fulfillment of the right to food – represents a particular concern. These areas are food distribution, food production, and food acceptability. A particular concern is how food distribution – either through food or seeds itself or through means for purchasing food – could become more effective. Any measure relating to food which does not contribute to the more effective distribution of food, particularly to the most vulnerable and marginalized, should be carefully examined as to how the effects of this measure could be undertaken in a manner which improves the positive effects with regard to these particular groups. With regard to resource-based distribution (including financial distribution), the purpose of patent and plant variety protection is to reward the technology producers, and allow them to pass some of their innovation costs on to the technology consumers.115 Moreover, the implementation of the TRIPS could result in a more difficult implementation of the Covenant particularly for developing countries, as at least the short-term outcome of TRIPS is that the needed resources or revenues do not arise, while the costs of implementing TRIPS are considerable.116 The situation of the already marginalized should be particularly observed when drafting and adopting legislation in order to implement TRIPS, in accordance with Article 11.2(a), as well as Article 2.1 of the Covenant. With regard to food production, the implementation of TRIPS results in the introduction of patent and plant variety legislation in the field of biotechnology for food and agriculture in all WTO States. This allows the private sector to commercialize their innovations and thus recover their investments in the field of food technology. During the same period, there has been a partial withdrawal of the State from the crucial efforts of increased food production.117 This withdrawal cannot be explained as a result of the
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is recognized as a ‘particular means’ for the full realization of the recognized human rights (Article 2.1). Cornides 2004, pp. 158-159. For positions that implementing patent rights should not be done because or ‘technology transfer’ or ‘equity’ concerns see Crespi 2003, p. 245, and Isaac and Kerr 2004, p. 41. Abbott 1998, p. 502, states that “…our collective understanding of this role is substantially incomplete.” (footnote referring to Maskus). Since then, Maskus has undertaken important studies on the transfers between countries resulting from the implementation of TRIPS (Maskus 2000), as well as the impact on the innovativeness and growth prospects particularly for developing countries (Maskus 2001). On p. 145, he states that developing countries may benefit in the long run, but “…there are bound to be short-term costs. However in the short run, developed countries are likely to be the primary beneficiaries.” The numbers given in UNCTAD 1996 have not been subsequently challenged. See Alston et al. 1998. See also the Norwegian Ministry of Agriculture and Food 2005, p. 3 and p. 6, observing that reduced public investments in plant breeding lead to increased emphasis on profitability of the breeding sector, which is said to justify stronger plant breeders’ rights in Norway.
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TRIPS Agreement. Increased reliance upon patent and plant variety protection took place simultaneously. While Article 11.2(a) of the Covenant does not specify how the State is to improve methods of food production, nor the role of the private sector in these efforts, at least those who are not able to pay must be considered to be better served by the State than by the private sector. The private sector cannot be expected to reach those farmers and communities who are not able to pay adequately for seeds and other inputs. If the State is absent from the development of new seeds, including through participatory plant breeding, the way is better paved for the private sector. Therefore, particularly regarding the deliberate withdrawal of the State from the food production sector, this seems to disregard one measure of Article 11.2(a) of the Covenant: ‘improve methods for food production by making full use of technical and scientific knowledge’. With regard to food acceptability, the emphasis on TRIPS implementation and the ignorance of implementation of the Covenant, also represent a concern. Patent rights are one of the factors providing the basis for the introduction of transgenic research and the introduction of transgenic plants, which are considered in many jurisdictions as morally and culturally unacceptable.118 Despite concerns about the effect on the directions of research, and which forms of research are awarded by intellectual property protection, food acceptability is not emphasized in the implementation of TRIPS.119 While TRIPS requires all States to provide protection for any inventions, including in the field of food biotechnology, it is not found that TRIPS per se contributes to production of food products deemed to be unacceptable in some countries and regions. These three concerns indicate areas which should be given increased attention in the future implementation of both the Covenant and the TRIPS Agreement, as well as the other treaties relevant for the implementation of the right to food in the context of private appropriation of biotechnology research tools and agricultural input. It is not found that the TRIPS Agreement per se necessarily has any decisive role in explaining the three areas of concern. Deliberate policy choices by the State are crucial in order to see positive outcomes of implementing TRIPS, as well as avoiding the negative outcomes. Underfulfillment of the right to food is the result of complex factors.120 The agricultural-dependent developing countries particularly face considerable challenges in addressing such situations. Therefore, they must make use of the TRIPS flexibilities and 118 One example of the lack of acceptability of ‘GM food’ are the surveys made for the UK Government ‘GM Nation?’ 2003 Report, see pp. 32-33, paragraphs 119-126. Paragraph 119 finds a “… a general pattern of caution, suspicion or outright hostility towards GM and GM crops or foods.” Most negative attitudes were found with regard to environment (paragraph 121) and human consumption (paragraph 122). 119 The limited application of Article 27.2, addressing, inter alia, human or plant life or health, and serious prejudice to the environment, has already been noted. 120 One example is the identification of causes for the food crisis in Southern Africa in 2002. In the Lusaka Declaration, resulting from the Lusaka workshop ‘Agrobiotechnology and food security in South Central Africa’ the following factors were identified: steady erosion of genetic diversity; incoherent agricultural policies leading to degradation of natural resources and a fragmentation of development efforts; and the overemphasis on maize production at the expense of traditionally more mixed farming systems delivering more balanced diets (see Minderhoud-Jones 2003, p. 25). Patenting is not directly related to these factors.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
avoid pushing for the further harmonization of international patent law, which tends to be a harmonization on a rather high level of protection, hence giving less flexibility.121 The States must address any factor which impedes the effective taking of measures to ensure the fulfillment of the right to food. Such factors must be adequately addressed in order to contribute to a more effective human rights fulfillment. The general approach toward fulfillment of human rights is expressed in the following way in General Comment No. 3 on the nature of State parties obligations: “It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.”122 The importance of the interests that the Covenant seeks to protect must be given substantial weight. While it is the holder of the intellectual property right who has the responsibility for enforcing his rights, the State must establish a legal system in which all obligations imposed by the treaties to which they are bound are performed in good faith. Therefore, by applying the legitimate limitations and exceptions of TRIPS, the State authorities will be in a better situation to apply ‘all appropriate means’ for the full realization of the right to food, in accordance with the Covenant. 12.3
Human Rights Considerations when Adopting Strengthened Protection of Patents and Plant Varieties
This section has a different approach than Chapter 12.1 and 12.2. Rather than analyzing the specific provisions in order to identify the relationship between the two treaties, it will analyze the relevance and application of specific human rights provisions which should be taken into account when introducing a strenghtened protection of biotechnology patents relating to food crops, as well as plant varieties. The term ‘strengthened protection’ refers to an extension of patentability (such as patenting of micro-organisms) or protection of plant varieties, an extension of the patent scope (protection extends to organisms in which the patented trait or gene is inserted) as well as stronger legal protection (increased possibilities for enforcement). It is difficult to identify the actual consequences of adopting strengthened patent and plant variety protection, particularly as regards the role of intellectual property for economic and technological development. Moreover, lack of access to food or seeds to produce food is most often not subject only to a single factor. Very detailed studies on the ground would have to be undertaken, which is beyond the scope of this book. It must also be observed that the potential negative consequences in the short term can be justified by potential positive long-term consequences.123 Regardless of the potential long121 See Aoki 1998, p. 57, addressing the serious distribution questions, and Maskus and Reichman 2004, p. 302 and 306, expressing concerns on consequences of further harmonization for developing countries, in particular as implementation of intellectual property rights might negatively affect States’ welfare power. 122 E/1991/23, pp. 83-87, paragraph 9. 123 Correa 2003 gives a good overview of the difference between static efficiency (short-term), understood as the most efficient use of existing resources, and dynamic efficiency (longterm), understood as the optimal introduction of new and better products or production processes.
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term consequences, a particular concern in human rights assessment is to identify those who become worse off, and particularly to identify the consequences on the poor. Discussing more specifically the impact on food, one of the authors who has analyzed the consequences of the TRIPS Agreement in developing countries, finds that food security is being undermined in three ways by plant breeders’ rights and patents on plants. First, by encouraging the cultuvation of a narrow range of genetically uniform crops which could have nutritional impacts. Second, by limiting the access to new free seeds. Third, by restricting the free circulation of plant genetic resources, which is important for further breeding and development.124 While these observations on impact are interesting, they cannot be considered to be uncontroversial. In particular, as the TRIPS Agreement was not fully implemented in most developing countries until 1 January 2005, and still is not implemented in the leastdeveloped countries, the eventual impacts identified cannot be assumed to be solely the result of the TRIPS. The first two consequences cannot be supposed to be outcomes of the TRIPS Agreement, but related as much to insufficient national agricultural and research policies. The last consequence could also be the result of more protective policies resulting from the principle of national sovereignty over natural resources, as recognized in the CBD. Other concerns include: – the price of protected seeds; – the actual physical access to traditional seeds is more restricted, due to the active marketing, wide availability and potential dominance of protected seeds; – the increased role of private actors in agricultural research, who are not adequately regulated,125 which also gives disincentives for public research. Rather than analyzing each of these concerns, this study will analyze specific human rights provisions that are crucial to observe when implementing TRIPS. There will be references to studies on impacts from the implementation of TRIPS. First, Chapter 12.3.1 will analyze the Covenant’s obligations relating to distribution (Articles 2.1 and 11), including the right over control of natural resources (Articles 1.2 and 11.2(a)). Second, Chapter 12.3.2 will analyze breeding and development of new crops (Articles 11.2(a) and 15.1(b)), including human rights of people belonging to minorities (Articles 15.1(a) and 15.1(c), as well as Article 27 of the International Covenant on Civil and Political Rights). The analysis will expand from the three levels of human rights obligations (respect, protect, fulfill) identified under Chapter 12.2.2 and 12.2.3 above.
124 Dutfield 2003a, p. 11. See also the ICTSD/UNCTAD 2002 Report, p. 105, and Andersen 2004. 125 In a study, Alston 1984, p. 42, identifies a “…duty to take reasonable steps to mitigate the adverse consequences in terms of hunger of the activities of domestically based corporations”; see also pp. 44-45.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
12.3.1
Obligations Relating to Available Resources and Distribution
Articles 1.2, 2.1 and 11 of the Covenant address resources126 and international cooperation.127 Effective distribution of relevant resources, both nationally and internationally, is an important prerequisite for the realization of the right to food. The Committee on Economic, Social and Cultural Rights, in its General Comment on the right to food, identified economic and physical accessibility to constitute a core content of the right to adequate food.128 This concept of accessibility is found to be crucial in an assessment of the concequences of introducing or strengthening the intellectual property protection of biotechnological inventions relating to food and plant varieties. While the consequences will certainly vary across crops, regions and countries, general patterns to which there is generally no substantial disagreement will be identified. Economic accessibility: There is generally no disagreement among intellectual property experts concerning the consequences of the introduction and strengthening of patent protection, that the protected products will become more expensive.129 Moreover, it is not evident that TRIPS implementation will lead to the transfer of technology, identified as an ‘objective’ in TRIPS Article 7.130 Even the defenders of a strong patent system admit that the welfare might be reduced in the short term after the introduction of a strengthened protection, particularly in developing and least-developed countries.131 126 While there is a different context in which the term ‘resources’ is used in the two Articles (referring to ‘available resources’ in Article 2.1 and ‘natural resources’ in Articles 1.2 and 11.2(a)), the present author agrees with Robertson 1994, pp. 704-713, that ‘resources’ as applied in Article 2.1 must refer to all resources, not only including natural and financial, but also human, technological and information resources. The term ‘to the maximum of its available resources’ in Article 2.1 must by necessity imply some sort of effective distribution. The term ‘distribution’ is also applied in paragraphs 11.2(a) and 11.2(b). Concerning the resource dimension in the Covenant, see also Dowell-Jones 2004. 127 International cooperation is understood differently in Article 1.2 than in Article 2.1 and 11.2. The latter two refer to international cooperation primarily in the form of international assistance. The former refers to obligations arising from international economic cooperation. 128 UN doc. E/2000/22, pp. 102-110, paragraph 13. 129 Most studies on the economic impacts of strengthening patent protection use a macroeconomic approach, focusing on innovativeness, competitiveness and economic growth (see Gould and Gruben 1996 for a positive assessment of patent protection, and Mazzoleni and Nelson 1998 for an alternative view).The best estimates of the transfer of resources as a result of the TRIPS Agreement is found in Maskus 2000. 130 Crespi 2003, states on p. 245: “Whether the strengthening of IPR in developing countries as part of the WTO Agreement will itself alone lead to the effective sharing of technology as between the developed and developing countries is by no means a clear-cut issue even for the most devoted protagonists for strong IPRs. […] [I]t has not been held out as a justification for TRIPS.” 131 See Lamy 2004, p. 925 and Maskus 2001, p. 145. Crespi (see footnote above), Lamy and Maskus, defenders of the patent system also for biotechnology inventions, argue that the costs will be covered by the incentives for innovativeness, that the long-term consequences
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Other authors hold that developing countries should strengthen their protection of intellectual property rights, in order to facilitate innovation, and hence have access to the best technology from the biotechnology industry.132 In order to analyze economic accessibility, two illustrations with regard to price effects will be provided, one relating to pharmaceutical patents and one relating to protection of plant breeders’ rights, as there are few studies on the effect of patenting biotechnological products in developing countries. One author has found an increase in prices for pharmaceutical products in India after product patents were introduced. This effect must be controlled for the increased price elasticity of these products, as well as the potentials for increased welfare due to the availability of these medicines.133 Effects on prices are only one factor in a general assessment of IPR, in addition to effects on research and technology dissemination, but for the consumers, the price effect is obviously the most direct effect. A presentation of studies on price effects from the introduction of plant breeders’ rights in three developing countries with a certain industrial capacity (Mexico, Argentina and Brazil) “…indicates somewhat higher prices with IPRs. This would be expected and necessary to recover private R&D expenses, but there appears to be little evidence of excessively high prices with agricultural inputs.”134 It is important to note that these research projects are not representative for developing countries in general, especially for the least-developed countries. One should have more country studies from least-developed countries in order to assess the price argument.135 The isolated price effect might, however, be stronger for products where monopolies are more easily established, and where there is generally weak competition. It is also important to note that the price effect from the introduction of plant breeders’ rights might be less dramatic than the price effect from the introduction of patents. Plant variety protection will not lead to market monopolies in the same manner as a patent on an invention. Moreover, the invention might have several usages, unlike the new plant variety.136 While the question of price is not necessarily a concern from a human rights perspective for people with a secure income, price become a human rights issue for those who depend on certain products for their survival, and who cannot afford to purchase
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therefore are positive, and that countries wanting to industrialize must have a patent system in place. Boyd et al. 2003, p. 230; see also p. 215. On p. 214, they present an overall harmonious view regarding agriculture in developing countries: “…an increase in production will directly enhance the economic development prospects.” Similar views are common in reports from the CGIAR and the World Bank. Watal 2000a. Lesser et al., 2000, p. 9. In Louwaars et al. 2005, five developing countries (China, Colombia, India, Kenya and Uganda) are studied. They conclude on p. 131 that intellectual property rights, particularly patents, will affect access to new varieties, as many farmers cannot afford to purchase such seeds. Moreover, the price of the protected products will partly be a consequence of the costs for obtaining and maintaining the protection, as well as the costs of obtaining and maintaining patents are higher than for plant breeders’ rights; see Wijk et al. 2003.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
more expensive products. People in industrialized countries spend an ever-decreasing share of their income on goods necessary for survival, including food.137 In developing countries, food still constitutes the largest share in most household budgets. Therefore, an increase in prices will have substantial effects on the individuals and households in developing countries. While new seeds will be more expensive, the findings on the overall cost resulting from patenting or plant variety protection is still inconclusive.138 Experiences from the Green Revolution might be relevant in order to assess the current situation. People who were not able to benefit from the new technologies might risk being worse off than before the introduction of these technologies, effects which would be more severe in the context of the current gene revolution.139 Their production will be of relatively less value, while those who have money to invest in new technology will benefit, at least in the long term. The effects of agricultural research on poverty alleviation depend on both the type of agricultural technology available, and on the underlying socioeconomic conditions.140 Furthermore, those farmers who take the risks by investing new technology which is protected by patents might risk being worse off, resulting from heavy loans servicing and increased dependency.141 While new technologies might contribute to increased production, they do not necessarily lead to a solution to the problem of poverty, which
137 In Ethiopia, 52.5 per cent of total household expenditures is spent on food; see <www.ethiopianreporter.com/eng_newspaper/Htm/No327/r327eco1.htm>; in Norway, 11.5 per cent of total household expenditures is spent on food; see <www.ssb.no/emner/05/02/fbu/>. 138 Perrin 1994, p. 505-506; see also Wright 2000, p. 303, asserting that one should “… avoid confusing the situation in crop breeding with that of pharmaceuticals…” See also Maskus 2001. 139 See Lipton 2001, finding several potential benefits, observes, however, on p. 838: ”GM research is therefore being steered to crops, traits and types of farm that are not very relevant, and that may sometimes be harmful, to the poor.” See also Paarlberg 2001, p. 43, identifying degree of commercialization and degree of biodiversity as two factors determining whether developing countries will benefit from introducing transgenic crops. Note that this applies to the current priorities and provisions of transgenic crops, and does not say anything concerning the contribution of the crop improvements that have taken place continuously, the last decades with the CGIAR as a driving force (see Evenson and Rosengrant 2003, who find that while crop genetic improvement has resulted in more evident positive consequences for productivity than for economic equality, they nevertheless find that such improvement efforts are “…vital to the escape from mass poverty” (p. 494)). Finally, see Kloppenburg 1988, p. 6. 140 See Meinzen-Dick 2003, p. 61-65, Hazel and Haddad 2001 and Kerr and Kolavalli 1999. 141 Traxler (unpublished 2003 lecture (‘Let them eat GM?’) – on file with the author) has compared the benefits from the Monsanto Roundup Ready soybeans in the USA and Argentina in 2001 and 2002 – between producers, consumers and industry. He finds that in Argentina, the producer surplus is 300 USD, twice as much as in the USA, while the industry revenue is only 40 million USD, one tenth of the revenue in USA. For the rest of the world, it is estimated to be a consumer surplus of 500 USD. It is important to note that Monsanto did not take out a patent in Argentina, unlike in the USA. An IFRPI report (Meinzen-Dick et al.
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is crucial for the realization of the right to food. Dependency might also result from proprietary technology in genetic resources for food and agriculture.142 There is no doubt that States aquiring modern and protected technology from abroad might have substantial costs,143 but non-protected inventions are available for developing countries. Moreover, it must be reiterated that all farmers choose whether they want to aquire new, more expensive seeds, or continue using their traditional seeds. Physical accessibility: Physical accessibility is also considered a core content of the right to food by the Committee on Economic, Social and Cultural Rights.144 There are two aspects of accessibility: access to food is directly affecting the right to food, while access to seeds is only indirectly affecting the right to food. The relationship between good seeds and adequate food, however, must be considered to be strong. Of particular relevance with regard to physical accessibility is Article 1.2, common in the two 1966 UN Covenants.145 Article 1 acknowledges the right of self-determination of all peoples. It sets out collective rights, which provides both a background against which the individual rights shall be understood, as well as serving as an important precondition for the exercise of the individual rights.146 As stated in Article 1.2,147 this right
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2003, p. 62) expresses caution regarding impact analysis which is limited to effects that are quantifiable, and this concern applies also to the numbers presented by Traxler. Particularly high producer costs have been reported in those countries in which the companies charge annual technology use fees, to ensure that the patent protection extends to subsequent progeny. Currently the system for charging technology use fees is best developed in the USA and Canada. There are reports indicating that farmers in Argentina pay a relatively small share of the benefits from biotechnology, while the producers pay a larger share. See ten Kate and Laird 1999, p. 147 and p. 155. The holder of the protected invention is more likely to bring an alleged infringement before the courts if this alleged infringement is made by a competitor. Concerning the private users, a central actor in the field of plant variety protection finds that “…given the large number of possible cases of counterfeiting and the low value of each case, the cost of supervision and of legal action is often not justified, other than to establish a precedent” (Le Buanec 2003, p. 3). Le Buanec is Secretary General of ISF, the International Seed Federation, organizing plant breeding companies. See Maskus 2000, p. 184, for an overview of net transfers resulting from TRIPS-induced strengthening of patent laws in selected countries. General Comment No. 12, 1999, UN doc. E/2000/22, pp. 102-110. Article 1.2 was introduced in Chapter 2.1.2, and applied in Chapter 5.2.2, but was not subject to a specific analysis in Part II of this book The Human Rights Committee has issued a General Comment on Article 1, in which the Committee states: “The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.” (Human Rights Committee 1984: General Comment 12 on Article 1, paragraph 1). Article 1.2 reads: “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.” There is a similar wording in Article 25, (Part
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
to self-determination is also related to control over natural resources. There can be no doubt that food is among these natural resources, particularly as understood by the term ‘means of subsistence’. An author understands that this paragraph constitutes an obligation on the States “to take measures to ensure that its own people are not in any case deprived of its own means of subsistence, including food […] and to investigate any situation where such deprivation is alleged to be occuring.”148 Moreover, a local community’s control over the natural resources is important for the realization of the individual rights which are recognized in the Covenant, in accordance with the importance of command over food. Another author argues that the right to ownership of natural resources is absolutely crucial for the realization of the right to food.149 An analysis on physical accessibility is undertaken owing to the fact that there is a widely-held opinion that people are deprived of access to both seeds and food, while the private companies exercise a substantial influence because of the implementation of TRIPS and the exercise of rights in accordance with TRIPS.150 In this context, it must be reiterated that the patent protection shall extend only to what is new.151 Original plants and seeds can be continuously used. If the exercise of the patent actually implies that farmers cannot continue to use their traditional seeds, there is every reason to believe that the patent is too wide, and therefore should be revoked.152 As was seen in Chapter
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IV on procedural obligations), but as this article does not establish anything new, but only repeats the main content of Article 1.2, Article 25 will not be analyzed. Article 1.2 was adopted with 26 votes to 13, with 19 abstentions. (UN doc A/C.3/SR.676, p. 262, paragraph 26, 29 November 1955). In the above-mentioned General Comment on Article 1, the Human Rights Committee states in paragraph 5 that ‘Paragraph 2 affirms a particular aspect of the economic content of the right to self-determination’ and that States ‘should indicate any factors or difficulties which prevent the free disposal of their natural wealth or resources contrary to this paragraph’. Alston 1984, p. 40. Hancock 2003, particularly Chapters 5 and 6. He considers the right to ownership of resources as an ‘environmental human right’ found to be necessary for the realization of the other human rights. The other ‘environmental human right’ is the right to an environment free of toxic pollution. This right is absolutely crucial for the realization of the right to health. The most outspoken (and most influential) is Vandana Shiva; See Shiva 1993, 1997 and 2001. In a 1993 interview, she says “…the most important issue on GATT and IPRs was the ethical one of who owns and controls living systems and organisms…”; at <www.sunsonline. org/trade/areas/intellec/06090193.htm>. The EPO patent EP 0€445€929 B1 is held to be a patent on food resources which are used by Indian households. See Shiva 2004, holding that “[n]early 600 million Indians use soft milling low gluten wheat…” The patent was subsequently revoked 23 September 2004. Another example of a patent where prior art is documented subsequent to its grant, is the patent on popping Nuña beans (US patent No. 6,040,503; PCT (Patent Co-operation Treaty) patent No. WO99/11115). Most patent legislations include provisions on re-examination, based on a formal request which must be submitted within a certain period from when the patent has been published. If such re-examination is done through an administrative process, this is not costly, unlike court litigation.
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9.1.4, plant breeders’ rights allow for exchange of protected material between farmers, provided that the material received is not used for further breeding, so that the farmers represent competitors to the holder of the plant breeders’ rights. Moreover, in order to analyze the replacement of traditional seeds with modern and protected seeds provided by external suppliers, one must consider the context of these choices of seed replacement. If the decisions to replace traditional seeds with modern seeds taken by the individuals in this community have been taken based on full information, it is not possible to hold that this represents any breach of either the rights of peoples to freely dispose of their natural wealth and resources, or of the prohibition against being deprived of its own means of subsistence. Farmers have access to unprotected seeds, and the options of seed exchange between neighbors will always be a possibility.153 The study will now examine whether Articles 1.2 and 11.2(a) provide a framework within which an analysis can be undertaken with regard to the exclusive rights over an isolated gene fulfilling the patent eligibility criteria, if the patent claims also extends to other plants in which these genes are incorporated, as well as the progeny of these plants. In short, this study will attempt to determine whether TRIPS implementation might lead to a situation in which the food plants, as a means of subsistence, are owned by others, restricting physical accessibility to food among members of the community. The resource dimension of the right to self determination will be analyzed strictly in a human rights context.154 Article 1 has not been applied by the Committee on Economic, Social and Cultural Rights, but has been applied by the Human Rights Committee, in the context of rights of indigenous peoples. Moreover, the resource dimension of the right to self determination has recently been confirmed by the International Law Commission, referring to the final sentence of Article 1.2 in the context of defining which countermeasures shall not affect States’ obligations.155 It will be assessed what the terms ‘freely dispose’, ‘deprived of ’ and ‘means of subsistence’ in fact imply in the specific context of realization of the recognized rights in the Covenant. ‘Freely dispose’ does not mean that there can be an unrestricted use of the resource, but that the ecological concerns must be considered. The notion ‘deprived of ’ relates to a situation in which forces outside the control of the community undermine the resource base. ‘Means of subsistence’ must include everything which is crucial in order to uphold life, of which food is an essential element. It is considered that ‘deprived 153 As Louwaars 2000, p. 12, observes: “…farmers simply continue to do what they have been doing since the dawn of agriculture some 10,000 years ago: producing seed on-farm, and exchanging it within and among communities.” See also Richer and Simon 2000, p. 39, noting: ”No patent can stop a person from continuing something he has done before…” 154 While this analysis focuses on the Covenant, it must be observed that the right to self determination is also recognized in the African Charter on Human and Peoples’ Rights, Article 21 several United Nations General Assembly resolutions confirm the principle of a sovereign right over the natural resources. See Resolution 2158, Resolution 3171, and Resolution 3281, with a Charter of Economic Rights and Duties of States (XXIX), see particularly Article 2.1. See also Schrijver 1997 and Alston 2001. 155 See United Nations 2001a (A/56/10), p. 336.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
of ’ is of most relevance in this context of assessing the relationship between human rights, as recognized in the Covenant, and patent and plant variety rights as recognized in TRIPS. Sepúlveda has found that there are two duties under the obligation to respect which relate to deprivation. First, the duty to avoid depriving individuals of the possibility to be self-supporting on the basis of their own work. Second, the duty to abstain from depriving individuals of the means of subsistence, particularly their land.156 Deprivation from means of self-support or land must be considered as rather evident forms of deprivation. This study will assess whether these two situations identified by Sepúlveda are substantially different from the situation where a patent is granted on biotechnological inventions based on biological material originating in a local community, which has been conserved and developed by members of this community. Before presenting allegations that a deprivation takes place, it must be demonstrated that farmers are actually prevented from continuing to grow these traditional seeds, and have no other choice than to avail themselves to the conditions set by the patent holder. Unless this is evident, it cannot be said that such peoples are deprived of their means of subsistence. Moreover, in this context, the important distinction between the reproduction and the propagation is crucial. In short, the farmer owns his own harvest, and can, in most jurisdictions, also replant protected plants on one’s own holdings. On the other hand, if the farmers has acquired protected seeds, they cannot involve in propagation of this material. Experimentation is allowed, however, and can result in a new variety or a new genetic invention, which can be granted protection provided that the eligibility criteria are met. Propagation of a protected plant or plant variety which is done with a commercial, and not a pure experimental purpose in situations where the repeated use of the protected variety is necessary (cf UPOV 1978, Article 5.3), represents an infringement of the exclusive right. Another concern, which has not been subject to extensive research in this book is whether the increased appropriation of the products resulting from agricultural research might negatively affect the accessibility to the agricultural genetic resources.157 Provided that the legal criteria under patent and plant variety protection are applied correctly, the main concern relates to local exchange of seeds. In other words, farmers wanting to produce and exchange their own propagating material might realize that this becomes increasingly difficult as their neighbors are prevented from taking part in such exchange, due to the fact that they grow protected plants and plant varieties. From a human rights perspective, it is important to identify which farmers actually benefit and which farmers face a deteriorating situation after the strengthening of patent and plant variety protection. The States are under an obligation to implement measures in order to serve those who are not able to enjoy an adequate standard of living. The potentially negative effects of implementing TRIPS,158 can be mitigated by applying the
156 Sepúlveda 2003, pp. 212-214. On deprivation, see also Jacobs 1993. 157 See Andersen 2004, pp. 44-45. 158 See Petersmann 2004, p. 626 and Cullet 2004, p. 262.
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flexibilities inherent in the TRIPS Agreement,159 as well as implementing technology and social policies. Furthermore, States are under an obligation to implement compensatory measures, including appropriate reward of farmers in developing countries in accordance with the ITPGRFA.160 While the Covenant does not state anything about compensatory measures, there is an obligation to move as expeditiously and effectively toward the goal of human rights realization, in accordance with General Comment No. 3 on the nature of State parties’ obligations under the Covenant. This could imply specific measures aimed at serving the most marginalized. Such measures can be undertaken without concern for the compatibility with TRIPS. Patent protection implemented in accordance with TRIPS will facilitate the increased involvement of the private sector in areas such as transgenic research. Those States which are leading the international development in the transgenic research have had a patent system long before TRIPS entered into force, and with protection standards which go beyond TRIPS. The implementation of TRIPS could, however, result in a situation where such transgenic plants are made available in more markets. Except for the situations with adventitious spread of transgenic plants, analyzed in Chapter 12.2.2 above, where nonprotected plants will be more difficult to cultivate uninterrupted, patenting of transgenic plants does not reduce access to original and non-protected plants and plant varieties, provided that the State meets its obligations on the fulfill (facilitate) level. At the same time, the States should recognize that if only private, commercial actors provide seeds, this is not necessarily in the best interest of the most marginalized.161 While the efforts in the late 1950s and 1960s to increase the yielding capacity (‘Green Revolution’) was publicly driven, and happened ‘outside’ the market, the gene revolution is market-driven and the actors rely upon patent protection.162 The implementation of the TRIPS Agreement will not in itself undermine the control over natural resources. Article 1.2 of the Covenant can assist in clarifying the scope of other articles in the Covenant. Of most relevance to this book is Article 11.2(a). While Article 1.2 emphasizes the interests of the original users of the natural resources, the emphasis of Article 11.2(a) is that these resources can be subject to ‘improved methods of production’ and thus benefit others than the peoples who traditionally disposed these resources. Article 15.1(b) states that everyone has the right to enjoy the benefits of scientific progress and its application. On the other hand, any increase in availability (through improved food production) which seriously restricts accessibility (through 159 While the TRIPS Agreement as such cannot be interpreted as allowing for patents on knowledge defined as prior art, TRIPS has specific provisions in Section 5 of Part II to balance between the private and public interests, including the revoking of a patent (Article 32), use for public, non-commercial purposes (Article 31(b)), limited exceptions (Article 30) and exclusions from patentability (Article 27.2 and 27.3). 160 Article 13.2 identifies four mechanisms to share benefits: exchange of information, access to and transfer of technology, capacity-building, and sharing of monetary and other benefits from commercialization. 161 Brush 1996, p. 18: “Privatization of biological resources could result in greater poverty and exploitation without achieving conservation or equity.” 162 Srinivasan 2003, p. 522.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
self-sufficiency or means for purchasing food) is not an appropriate human rights strategy. Concluding remarks: A patent which is correctly granted does not in itself restrict the use of the natural resource from which the patented invention is derived. Therefore, the TRIPS Agreement does not in itself restrict the free disposal of natural resources, or deprive any peoples of their means of subsistence. If patents have been granted on information which is common and existing knowledge (prior art), this represents a wrongful patent, in which insufficient investigations have been made before the patent was granted. Such patents can be revoked. While the economic and physical accessibility might be affected, the farmers must always be allowed to continue to sow their traditional seeds. The State is under an obligation to ensure that practices like exchange and sowing are not impeded, and to take measures so that non-protected seeds are available. 12.3.2
Obligations Relating to Undertaking Research
It was found in Chapter 2.3.1 that ‘invention motivation’ is only one of the primary three purposes of patent protection, and the purpose of ‘induced commercialization’ is becoming increasingly important. Both of these purposes are related to human rights. Promotion of inventiveness contributes toward the objective of improved methods of food production of Article 11.2(a), seen together with Article 15.1(b) of the Covenant. Promotion of commercialization can be one means through which the right to enjoy the benefits of scientific progress and its applications of Article 15.1(b) can be enjoyed, but if the resulting products are subject to patent protection, the holder of the right has the exclusive rights to the commercial exploitation of the protected products.163 In other words, patent protection can be justified either because this will affect behavior occuring before the right comes into being (inventiveness) or behavior occuring after the right comes into being (commercialization). Stated differently, there is a distinction between an ex ante and an ex post justification.164 This distinction shall be made clearer. If such inventiveness happens without any of these inventions in fact becoming the basis for new products that can be made available to the people, then such inventiveness is of limited public benefit. When the Covenant addresses science (Articles 11.2(a) and 15.1(b)) this must be understood as being not only science in isolation, but also how this science is contributing to a better realization of 163 With regard to commercialization, there are particular human rights concerns. The State should carefully assess its human rights obligations before initiating and promoting commercialization, and seek to strengthen the extension services through its own institutions rather than relying on private actors for provisions of basic goods and services. Only if it is evident that the private sector is substantially better than the public sector at delivering these goods and services at affordable prices, can such policies be justified. Moreover, the State should identify the vulnerable and marginalized groups, adopting policies with the aim of avoiding that these groups are affected negatively as a result of commercialization. 164 See Lemley 2004 on an analysis on the distinction between these two justifications, finding the ex ante justification far more problematic than the ex post justification.
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the human rights. Therefore, the ex ante and ex post justifications must be seen as both being important in the context of human rights realization. One of the most quoted ‘truisms’ relating to the patent system is that protection is important in order to foster increased research and innovativeness. This understanding is questioned by several authors.165 As increased research and innovativeness is also important for human rights realization, it will be analyzed whether patent and plant variety protection facilitate inventive efforts and efforts to make available the products resulting from this research, to the benefit for all, in accordance with Article 15.1(b) of the Covenant. Three concerns arising from the implementation of patent and plant variety rights will be presented, based on the provisions of Section 5 of Part II of TRIPS Agreement. First, the introduction and marketing of new products is the dominant motivation for the right holders, rather than the increased research per se. Second, the plant variety and patent protection might effectively block further breeding and research, in particular if the patent claims as recognized by the patent authorities, are wide. Third, the patent practice in industrialized countries must be critically assessed in light of the patent eligibility criteria, as there are allegations that granted patents constitute misuse of traditional knowledge relating to plant genetic resources, rather than providing more research and better products. Each of these arguments will be analyzed below. Increased research is not the basic rationale: As was seen above, a distinction must be made between inventiveness and commercialization as a justification for the patent system. The introduction of new products on the market (commercialization) seems to be a more relevant justification, as confirmed by two different studies. A widely recognized author on intellectual property rights observes: “[o]ne of the most certain economic characteristics of patent law is that patents are more effective in encouraging the innovation and investment involved in bringing a product to market than in ecouraging research itself.”166 Regarding plant variety protection, a study regarding the US Plant Variety Protection Act (PVPA), concludes that “…the lack of gain in wheat yields as a result of the PVPA, indicate that the PVPA has served primarily as a marketing tool.”167 The conclusion emphasizes that introducing products on the market is the main motivation for holders of patent and plant variety rights. The creation of improved technology resulting in increasing yield is for them not the main motivation.168 165 Funder 2001 p. 279, finds that “…legal appropriation may […] interfere with the operation of public non-proprietary systems for the production of knowledge and technology.” In a footnote, he refers to 14 authors whom he uses in support for this observation. See also Branstetter 2004, p. 369, who has found no positive effects on local innovation as a result of strengthening of Japanese patent law, but a positive effect on the dissemination of new technologies – through licensees or affiliates. There is also concern regarding the low thresholds in the US for obtaining patents, and its effects on innovation (Barton 2004, pp. 346-347). 166 Barton 1995, p. 614. 167 Alston and Venner 2000, p. 31. While the diffusion of the protected seeds was encouraged by the PVPA, the productivity was not found to be increasing. 168 Moreover, Maskus 2001, p. 134, finds with regard to Japan that “…its patent system has shifted away from encouraging diffusion and more toward protecting fundamental technologies.”
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
These arguments do not indicate that no relationship exists between the level of protection and the level of research. Patent protection provides the predictability needed when developing an invention into a marketable product. This process is often long, costly and cumbersome. At the same time, private research is increasing. The ‘life science’ industry, more than most other industries, must maintain high levels of research and development in order to be competitive. Concerning world-wide investment in agricultural research, the private sector will soon be on the same level as the public sector.169 In principle, and in line with the neutrality expressed by the Committee on Economic, Social and Cultural Rights with regard to the States’ prevailing economic system,170 the State authorities could meet some of their research obligations under Article 11.2(a) of the Covenant by facilitating agricultural research done by the private sector, or by public-private partnerships. The State must ensure, however, that the improved methods of food production, independent of whether they are facilitated by patent or plant variety protection, are not negatively affecting measures for the improved methods of food distribution. Particularly, the State must observe its obligations to take measures in the field of food production and distribution in order to serve the most marginalized. A related argument is that the introduction of new products on the market can be important for human rights fulfillment, while the research per se does not necessarily have any bearing on human rights fulfillment. It seems that the most decisive characteristic of the patent system is that it provides certainty when a new product is introduced on the market by preventing unwarranted competition from counterfeit industries. Obtaining a large patent portfolio is instrumental for this purpose. Related strategies in order to reduce such competition include strategic mergers of competing companies171 and law-suits against alleged infringers of a patent.172 It is therefore found that patent protection provides the predictability for research-intensive companies, allowing them to maintain their research. Therefore, the fact that the introduction of new products on the market is emphasized over increased research per se does not give rise to human rights concerns.
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172
Among the three purposes of patent protection identified in Chapter 2.3.1, there seems to be a gradual move toward the ‘induce commercialization’ purpose. See Pardey and Beintema 2001. General Comment No. 3, (UN doc. E/1991/23, pp. 83-87) paragraph 8. One example of a strategic merger is Monsanto’s 1996 acquisition of Agracetus, which just two years earlier had been granted a wide patent on genetically modified soybean (European Patent No. 301,749). Monsanto initially protested against the granting of the soybean patent, claiming it should be “revoked in its entirety,” is “not... novel”, “lacks an inventive step,” and “sufficient disclosure [of scientific method] is woefully lacking.” But when Monsanto acquired Agracetus in April 1996, it withdrew its challenge, reversed its position and announced that it would defend its newly-acquired patent. The European Patent Office Opposition Division, based on a legal opposition against the patent, held a hearing on this patent 6 May 2003, which resulted in a decision which upheld the previous decision, except for one patent claim (no. 25 - which sought control beyond soybeans to other plants as well). All web-pages of the large companies have information about various lawsuits; see www. pioneer.com, www.monsanto.com and www.syngenta.com, describing also lawsuits between these three companies.
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Problems for undertaking further breeding and research as a result of the patent system: The human rights obligations relating to science, particularly for increased food production, were examined in Chapters 5 and 6. Publicly-funded and privately-funded research can both work toward human rights fulfillment. The latter depends upon protection of the results of the research, either patent or plant variety protection. This protection, however, applies only in those States where the exclusive rights have been granted. In all other States, everyone is free to exploit, also commercially, inventions which are protected in other States, but not in one’s own. The value of the information contained in a patent application should be acknowledged, implying that patents are different from trade secrets in terms of making information available. However, there is no general agreement as to whether research efforts by public research institutions and universities which aim at obtaining patents, will lead to less publishing of research findings.173 Moreover, it must be asked to which extent patents or plant breeders’ rights affect the possibilities of the State to fulfill the obligations recognized in Article 11.2(a) of the Covenant.174 It has been found that neither States, nor the Committee on Economic, Social and Cultural Rights have been particularly attentive to the obligation to take the necessary measures. Furthermore, the role of commercial actors in improving methods of food production has not been subject to much debate.175 While the State is the sole holder of obligations for the realization of human rights, efforts of private actors can contribute to the exercise of social human rights, such as the right to health, housing and food. While companies have important roles in improving methods of food production, it is not obvious that the companies always are optimal actors, as their patenting and plant variety protection might make the distribution of food-producing resources more difficult. There are also concerns relating to the global exchange of genetic resources.176 Moreover, even if experimenting on protected subject matter were allowed, the resulting product from such experimentation might not find its way to the consumers due to the patent or plant variety protection. Therefore, such exclusive rights could impact 173 Philips and Dierker 2001, pp. 132-133, finds that the Canadian universities which were entering into partnership agreements with the private sector experienced a subsequent drop in the citation rate. Rather, efforts are ‘devoted to patentable research’ (p. 133). Opposite conclusions, that patenting has positive effect on rate of publishing in journals, are presented by Azoulay et al. 2004 and Markiewicz and DiMinin 2004. 174 Concerns regarding reduced public agricultural research are expressed by Lipton 2001, p. 842, Spillane 1999, p. 35, and Louwaars et al. 2005, p. 4, pointing to the ignorance of poor farmers as a main problem. 175 The only paragraph of the General Comment No. 12 (UN doc E/20000/22, pp. 102-110) which addresses the private business sector is paragraph 27, which reads: “As part of their obligations to protect people’s resource base for food, States parties should take appropriate steps to ensure that activities of the private business sector and civil society are in conformity with the right to food.” General Comment No. 12 is silent regarding any potential positive contribution by the private business sector. 176 For the most comprehensive analysis on the factors explaining restricted access, see Falcon and Fowler 2002; see also Fowler et al. 2001.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
on the efforts of other inventors and innovators.177 Other innovators might have more limited options due to the strengthening of patent and plant variety protection.178 The breeders’ exemption, including the possibility to undertake experimental research on any object protected by a patent, is generally recognized.179 The research undertaken on protected subject matter can result in new knowledge to be applied on a product or in a process, which does not fall under the scope of the patent or plant breeders’ rights. It has been found that public research, both at national agricultural research centers and at the Future Harvest Centers of the CGIAR, has been applying patented material, hence infringing upon patents.180 Some of this research could fall under the research exemption. Moreover, much of this infringement goes unnoticed, as public research is not as threatening for the companies as research and commercialization undertaken by other competing companies. Companies are most eager to enforce patents – before the courts if necessary – if these patents are infringed upon by other companies. Research at public institutions would be more restricted if scientists involved in public, non-commercial research were in fact respecting the patent to the extent that they would not apply protected products or processes in the research leading to plants or plant varieties with new characteristics. Moreover, the public agricultural research institutions, also in developing countries, promote patenting themselves, without a proper assessment of the commercial potential involved in the subsequent commercialization of the research products.181 The IPR Commission expressed concern over this tendency among developing countries’ national agricultural research institutions to strive for intellectual property protection.182 Finally, it must be reiterated that much technology, which is protected in industrialized countries, might be available for everyone to use in most developing countries, if the technology is not subject to any form of patent or plant variety protection in these countries. In general, only commercially viable products will be subject to the interest of the large biotechnology companies. Several of the staple crops crucial for develop177 The situation of ‘informal innovators’ (farmers) who have traditionally been experimenting with and exchanging new seeds, is not considered here. 178 Philips and Dierker 2001 p. 134, give three well-known examples of biotechnologies (bt, Roundup Ready and GoldenRice) in which the number and overlap of patents have led to a process of heavy litigations and subsequent mergers. Nottenburg, Pardey and Wright, writing in the same publication, find that some of these problems might be solved between the companies by cross-licensing, but this might also have as an effect that the public institutions are ‘shut out’ by nonlicensing agreements (Nottenburg et al. 2001, p. 111). 179 But see South Centre and CIEL 2004, p. 8. 180 See Cohen et al. 1998 with regard to international agricultural research centers and Salazar et al. 2000 with regard to Latin American national agricultural research organizations. 181 Philips and Dierker 2001 p. 135, claim that this practice ‘impede commercialization of their innovations’; see also p. 144, addressing the motivations by public institutions to take out patents. Spillane 1999, p. 31, lists overestimation of value of intellectual property and underestimation of the costs of turning research into products as some of the problems with public sector involvement in intellectual property rights protection. 182 IPR Commission 2002, p. 125, emphasizing the ”…conscious efforts being made to change the traditionally open culture of research.”
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ing countries are presently not subject to any research interest from these companies. Therefore, public research should devote its energy toward participatory breeding efforts on staple food.183 Such food is crucial for the world’s poor, but is presently met with little interest from the private sector because the commercial market is too limited. Increased private sector involvement in plant breeding does not ensure that new technology is made available to developing countries.184 Therefore, it is difficult to draw one general conclusion with regard to research, as there are huge differences between different crops. Protection leading to increased inventiveness and innovativeness might not necessarily benefit all, as commercialization could imply increased costs for the most marginalized. The State, in order to move as expeditiously as possible towards the goal of full realization of human rights, can adopt measures to help the most marginalized if they are being left in a more difficult situation a result of the increased commercialization. Developing countries must strive to develop their own capacities, as well as cooperating with the Future Harvest Centers, to develop and improve staple food crops, rather than to pay license fees and become dependent upon the private sector. While patents might inhibit research on some crops, if they are subject to protection, a strategy of focusing on non-protected crops will cause the least problems for developing countries seeking to increase their food production and improve the food intake of their population. Patent grants might encourage misuse of traditional knowledge: Initially, it must be noted that this is a controversial assertion, and one frequently presented by those opposing the current system,185 but this observation requires a closer examination. According to the patent eligibility criteria outlined in Chapter 2.3.1, a patent shall be granted if the invention in question is new, involves an inventive step and has an industrial applicability. A plant variety certificate shall be granted if the plant variety is new, distinct, uniform and stable. Dutfield identifies the following as particularly problematic in the field of patents.186 First, patents might be granted on natural products, which are really discoveries, not inventions. Second, the inventive step requirement seems to be ignored on certain biotechnology patents. Third, patents might lead to misappropriation of traditional knowledge. These concerns are at the core of the debate regarding biotechnology patents and plant variety protection. If a patent is granted on natural products which constitute traditional knowledge and therefore prior art, these patents have been wrongfully granted, and must therefore be revoked. An author regrets that there are “…no mechanism within the EPC system permitting internal revision of a patent once granted unless as a result of 183 Byerlee and Fischer 2002, pp. 931-932; IPR Commission 2002, p. 66. 184 Swanson 2002, p. 19. He also notes in the same paragraph that “…the shift towards private sector-dominated plant breeding industry might have important distributional implications.” 185 See Aoki 1998 and Gana 1996, in addition to Shiva 1993, 1997 and 2001. 186 Dutfield 2002, pp. 903-912.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
a formal challenge, no matter how obvious the error involved.”187 Moreover, the lack of affordable procedures for revoking patents, also before the courts, deserves closer attention. Possible measures by the State parties can be financial support to representatives of indigenous peoples or local communities when these are challenging the grant of patents or plant variety protection. While the concerns identified by Dutfield cannot be dismissed, the most crucial issue is whether the legal criteria are correctly applied nationally.188 In this context of traditional knowledge, this study will analyze whether there is a relationship between the implementation of TRIPS provisions and the human right to take part in cultural life, as recognized in Article 15.1(a), as well as the right to enjoy the moral and material interests of scientific production, as recognized in Article 15.1(c) of the Covenant. Relevant is also the minority right provision in Article 27 of the International Covenant on Civil and Political Rights. Concerns over the impact of patents on cultural rights are expressed by the UN High Commissioner for Human Rights.189 Many communities have an holistic approach towards the plants they have preserved and nurtured. Many plants are not only consumed as food, but might have significance as they are considered to be sacred or religious, and have medical and healing effects. For communities depending upon the natural environment, both the skills and knowledge relating to such plants, as well as the plants themselves must be considered to constitute part of their cultural heritage.190 While the exclusive rights do not relate to the knowledge, the genetic or biological resource in its original form, farmers and local communities express overwhelmingly negative reactions when informed about plant variety protection or patents on varieties or inventions derived from the resources which they themselves have explored and pre-
187 Llewelyn 2004, p. 158. 188 An example of a strengthening of the application of the inventive step (utility) criteria is the most recent ‘Utility Examination Guidelines’ (Federal Register 2001, p 1093 (RIN 0651AB09)) from the United States Patent and Trademark Office (USPTO), which reads: “If no assertion of specific or substantial utility for the claimed invention made by the applicant is credible, and the claimed invention does not have a readily apparent well-established utility, reject the claim(s) […] on the grounds that the invention as claimed lacks utility.” This is a more restrictive understanding of utility than the understanding previously applied. It must be presumed also that the practice in USPTO applies stricter criteria for utility than in the past. 189 Sub-Commission 2001d, paragraph 26, points toward “…an imbalance within the TRIPS Agreement that could have an impact on the enjoyment of human rights, in particular cultural rights.” See also Gervais 2002, p. 960, identifying two exclusionary effects of patents applying to traditional knowledge-holders (negative, understood as non-recognition of their knowledge, and positive, understood as excluding their pre-existing rights), as well as Coombe 1998, pp. 70-71, identifying intellectual property rights as a danger to indigenous peoples’ cultural heritage. 190 ‘Cultural heritage’, as well as ‘cultural identity’ appear in paragraph 1(c) and 1(d) under Article 15 in the Guidelines for State reporting (UN doc. E/1991/23, pp. 88-110).
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served.191 It must be presumed that preservation of biological resources in situ is closely related to the preservation of cultures, which is a precondition for the right to take part in cultural life.192 Moreover, Chapter 6.1.3 found that the right of the author to benefit from the moral interests193 of any literary, artistic or scientific production (Article 15.1(c)), does not include only those who qualify for protection under intellectual property legislation, but can also include holders of knowledge developed within local or indigenous communities. Article 15.1(c) must be understood in the context of cultural human right. Finally, Article 27 of the International Covenant on Civil and Political Rights must be included in a presentation of human rights relating to culture. The Article reads: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
The phrase ‘enjoy their own culture’ must be considered to be the most relevant phrase. As Article 27 applies the term ‘their culture’, we are particularly concerned with the culture of the specific communities. The notion of ‘cultural life’ in Article 15.1(a) is wider, and can also include the culture of the larger nation or region. While the terms identifying the scope of the rights do differ (‘take part’ in Article 15.1(a) of the International Covenant on Economic, Social and Cultural Rights versus ‘enjoy’ in Article 27 of the International Covenant on Civil and Political Rights) this distinction should not be overemphasized. Article 27 can be interpreted to imply that, to the extent that preservation of natural resources, including particular plants, is crucial for a minority’s enjoyment of their culture, such preservation is a precondition for exercising this right.194 191 While there are examples from all continents, the US Patent No. 5,894,079 on yellow beans, granted to Larry Proctor in 1999, which also the CIAT has been involved in challenging (see FAO 2002b (Document CGRFA-0/02/Inf.7)) is illustrative. CIAT holds on p. 2 in this document that the patent does not fulfill the novelty and non-obviousness criteria, and that CIAT’s own holdings of yellow beans are designated germplasm in accordance with the FAO Agreement, which will be exchanged for free. The ETC group news release “Proctor’s Gamble” of 17 December 2001 states: “Farmer and civil society organizations have condemned the Enola patent as a textbook case of biopiracy…” Pallotini et al. 2004 p. 968, concludes that: “…the most likely origin of Enola is by direct selection within pre-existing yellow-bean cultivars from Mexico, most probably ‘Azufrado Peruano 87’.” This indicates that there was no invention. 192 There are, however, no references to human rights provisions in laws recognizing traditional knowledge; see WIPO 2004a and WIPO 2004b. TRIPS is also silent on the recognition of traditional knowledge. 193 On the moral aspect of intellectual property rights, see Downes 2000, p. 257 and p. 276. 194 The International Covenant on Civil and Political Rights, Articles 1.2 (similar wording as the International Covenant on Economic, Social and Cultural Rights) and particularly 2.1 (‘respect and ensure all the rights’) are crucial for the understanding of the recognized individual rights.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
While it is not possible to identify a direct conflict between TRIPS-compatible legislation and the recognition of traditional knowledge, with or without a human rights basis, some observations on traditional knowledge when implementing TRIPS follow. First, while there are allegations of unjustified appropriations of knowledge held by local and indigenous communities,195 this cannot be presumed to be a direct consequence of TRIPS. The State parties should ensure, however, through legislation, guidelines, practice and awareness-raising, that such misappropriations are avoided as far as absolutely possible, and that affordable mechanisms for challenging such patents are made available. States must provide for a means by which intellectual efforts of local and indigenous people are at least ensured a defensive protection. This must be considered as a legal obligation. States wishing to do so, can adopt sui generis legislation for positive protection of traditional knowledge, but this is no obligation under international law. Second, participation – defined by Raworth as an ‘obligation of process’ that must be met in official human rights conduct196 – should be encouraged in any explorations of traditional knowledge. In the CBD, this is termed ‘prior informed consent’. Participation can avoid potential serious conflicts relating to the enjoyment of exclusive property rights resulting from a new invention on genetic information for food and agriculture. To ensure adequate participation in relevant decision-making processes must be understood as an obligation on the States. Third, it is uncertain whether there is an obligation on the State to ensure that there are real possibilities of revoking a patent that does not fulfill the eligibility requirements. The present author is not aware of any treaties regulating this.197 Hence, it appears that the State is not obliged to allow for affordable revocation. There are no procedures for internal revision, and a formal request must be made by an external party, even if the patent is obviously wrongfully granted. In the USA, a ‘request for re-examination’198 can be made at any time if there is prior art which a person believes has “…a bearing on the patentability of any claim of a particular patent.”199 According to Article 98.1 of the EPC, a ‘notice of opposition’ must be made within nine months from the grant.
195 See Shiva 1993, 1997, 2001 and 2004, the latter addressing the EP 0€445€929 BI patent on wheat, which was revoked 23 September 2004 after the patent was challenged, inter alia, by Shiva. 196 See Raworth 2001, p. 120. She also lists non-discrimination, adequate progress and effective remedy as ‘obligations of process’. 197 See Patent Law Treaty, Article 10.1, regulating revocation, only specifying the rights of the patent owner, including determining as the only ground for revocation or invalidation of a patent “…non-compliance with the formal requirement occurred as a result of a fraudulent intention.” 198 ‘Opposition’ is the term applied within the EPO, while ‘request for re-examination’ is a USPTO term. 199 Quoted from US Patent Act, 35 United States Code, Section 301 (‘Citation of prior art’).
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Finally, it should be noted that most of biotechnological research is applied on ex situ collections, held either in public gene banks or in private DNA banks200 and not on in situ material preserved by local communities. States should at least ensure that they have better access to information on traditional knowledge, and recognize such knowledge at least as prior art, in order to avoid the misuse of traditional knowledge. Moreover, it is found that the application of the rights recognized in Article 15.1 of the Covenant, as well as in Article 27 of the International Covenant on Civil and Political Rights, provide an additional legal basis for protecting traditional knowledge against misappropriation, in addition to the CBD201 and ITPGRFA,202 the latter in which farmers are recognized as ‘developers’. Summing up with regard to the three concerns regarding the effects of patent and plant variety protection on research, it is not found that these three concerns represent fundamental problems, both generally and in the context of human rights obligations. However, this cannot be interpreted as a general endorsement of all aspects regarding the grant of patent or plant variety protection. In particular, it must be considered to be too burdensome to revoke a patent once it has been proven that invention did not fulfill one or more of the legal criteria. Concerns regarding how the States fulfill their research obligations, both nationally and in the Future Harvest Centers, do arise in the context of patent and plant variety protection. The latter will now be analyzed. Specifically about the international agricultural research centers: The obligations with regard to research in the Covenant must also be implemented on the international level. It was found in Chapter 5.3.2 and 5.3.3 that the Future Harvest Centers of the CGIAR represent the most important institutional basis for agricultural research. We will analyze whether there is a tendency among these Centers to seek exclusive protection of the outcomes of their research, and if so, whether these Centers will still be the most appropriate forms of international cooperation for implementing the measures identified in the Covenant’s Articles 11.2(a) and 15.1(b). More specifically, we will present the possible conflicts these Centers might face when pursuing an IPR policy while at the same time implementing the Agreement with the FAO,203 based on the importance of international cooperation for agricultural research, particularly in developing countries.
200 Swanson 1996. Pistorius and van Wijk 1999 p. 132, state that “…the collection and storage of genetic information in the form of data on DNA sequences is mush more attractive than in the form of seeds”. On p. 127, they ask if there will “…still be a function for the seedbanks in the future?” 201 Articles 8(j) and 10(c). 202 Articles 9 and 12.3(e). The latter reads: Access to plant genetic resources for food and agriculture under development, including material being developed by farmers, shall be at the discretion of its developer, during the period of its development.
In brief, this implies that no other can appropriate the genetic resources during this process. 203 See FAO 2002g and FAO 2006 Appendix K.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
Initially it must be observed that the most recent FAO-CGIAR Agreement which is to be implemented in accordance with the ITPRGFA only applies to the plant genetic resources included in the ITPRGFA’s Multilateral System.204 For the plant genetic resources not included in the Multilateral System, as they are not listed in Annex 1 to the ITPGRFA, mutual access between States and the international agricultural research centers of the GCIAR to such resources will be ensured in accordance with Multilateral Transfer Agreements, in accordance with Article 15 ITPRGFA. All Future Harvest Centers have intellectual property guidelines, in adopted or draft forms.205 The principle is that such protection shall be sought only if this “…will ensure that the subject matter will be available to stakeholders.”206 Two related questions arise from this shift toward acknowledging intellectual property protection. First, it must be asked whether the intellectual property strategies can be justified with regard to its Mission.207 Second, it must be asked whether these strategies can be justified with regard to the right to food obligations and the right to benefit from science – as this study considers the CGIAR to be the most important form of international cooperation in accordance with the introductory part of Article 11.2 Among the international agricultural research institutions, there is general agreement that patenting is justified under certain circumstances, “…when this is needed to facilitate technology transfer or otherwise protect the interests of the developing nations.”208 The form of patenting which is promoted, is termed ‘defensive patenting’, as patenting can be justified if this assists the Centers in providing public goods.209 Already in 1991, a study commissioned by the Netherland’s Ministry for Foreign Affairs concluded that the international agricultural research centers should seek patent protection. The motivation was that this would facilitate collaboration with the private sector, prevent the appropriation of publicly funded innovation by third parties and increase royalty incomes in order to compensate for shrinking public funding.210
204 After the ITPGRFA entered into force, the ‘in trust’ term refers to the plant genetic resources of Annex 1 to the ITPGRFA, as the basis for the Multilateral System in Articles 10 through 13. 205 See Louwaars et al. 2005, p. 114. 206 Ibid, p. 122. 207 The CGIAR Mission reads (extracts): “to contribute to food security and poverty eradication…” 208 System-wide Genetic Resource Programme 2001, p. 31, alternatively CGIAR 1999, p. 29: Guiding Principles for the Consultative Group on International Agricultural Research Centres on Intellectual Property and Genetic Resources. See also Adams and Henson-Apollonio 2002. 209 See Adams and Henson-Apollonio 2002 and Louwars et al. 2005, p. 122. See also Spillane 2002, p. 112, observing that defensive patenting “…will become a common feature for all of those agricultural research institutions (such as NARs) that can afford the legal costs of filing and defending patents” (emphasis added). Spillane is also referring to an unpublished paper by Byerlee and Fischer. 210 “The Impact of Intellectual Property Protection in Biotechnology and Plant Breeding on Developing Countries”, Directorate General International Cooperation, Ministry of Foreign
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In the 2003-2004 Plan of Work of the Central Advisory Service (CAS) on Intellectual Property for the CGIAR, it is acknowledged that the Centers “… begin to take on a proactive role in better management of their Center-generated IP asset. We think better management of IP assets will result in the increased transfer of the products of the Center IP assets to stakeholders, thus serving the CGIAR’s mandate to produce international public goods.”211 Furthermore, after presenting the potential of biotechnology, two authors centrally located in the CGIAR structure give an assessment as to whether this technology will benefit developing countries: “The answer depends on whether the research is relevant to poor people and on its ownership, that is, the nature of intellectual property rights arrangements.”212 Their answer is: “Developing countries will need to enact and enforce intellectual property rights legislation in order to benefit from biotechnology.”213 Several of the Centers have also adopted their own IPR policy, and the policy documents of IPGRI214 and CIMMYT215 will in particular be considered. These documents accept intellectual property protection under given circumstances. IPGRI states that “[w]here it is uncertain or unlikely that publication or public disclosure will facilitate access to or ensure delivery of research products for the public benefit in particular in developing countries IPGRI will, exceptionally, pursue this objective [facilitate access or ensure delivery of research products] by […] taking or allowing others to take, intellectual property rights in research products or material derived from such research products.” CIMMYT’s policy initially states that it “…must also be ready to adopt new tools and strategies in order to keep faith with its mission. Pursuing any other course would neither be responsible, nor would it serve the interests of those CIMMYT is charged to help.” Furthermore CIMMYT will manage intellectual property issues, being guided by “…its special responsibilities to the resource poor…”216 Both policy document distinguish between material held ‘in trust’ for the international community and products of centre research, and intellectual property is only possible to take out on the latter of these. Moreover, IPGRI states that “[n]o intellectual property protection will be agreed to without satisfactory and equitable benefit sharing
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Affairs. The study does not generally recommend strong intellectual property protection legislation in developing countries. Quoted in Barton and Siebeck 1992, p. 8. ISNAR 2002a, p. 1, emphasis added. Pinstrup-Andersen and Cohen 2000a, p. 166. Pinstrup-Andersen is chairing the CGIAR’s Science Committee (formerly its Technical Advisory Committee), after serving as Director at IFPRI. Pinstrup-Andersen and Cohen 2000b, p. 159. IPGRI Policy on Intellectual Property adopted in 2000: <www.ipgri.cgiar.org/policy/ipgripol.htm>. International Maize and Wheat Improvement Center Policy on Intellectual Property adopted in 2000: <www.cimmyt.org/Resources/Obtaining_seed/IP_policy/htm/IP-Policy_Eng. htm>. Ibid IV.2(ii).
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
agreements…”217 CIMMYT is less specific, saying that “CIMMYT abides by all relevant international laws and treaties concerning intellectual property rights and genetic resources.”218 The ‘in trust’ agreements with FAO, now administered by the Governing Body of the ITPGRFA, are among these ‘relevant international treaties’. The tendency is that more and more Centers recognize the importance of their own IPR policy, in which intellectual property is accepted if one believes that this contributes to fulfilling the Center’s mission. While the Centers approach the intellectual property issues with an emphasis on the interests of the poor, and not their own commercial interests, it cannot be considered likely that any public institution will be able to pay the price for maintaining several patents or other types of intellectual property rights, without ever benefitting from them. It must be asked if it is a correct policy to spend the scarce resources of the Centers on application and examination fees and subsequent annual fees?219 There might be demands that the legal monopoly stemming from the patent should be exploited toward marketing their patented products, so that costs of maintaining the patent can be recovered.220 Based on the CGIAR’s mission of serving the poor, it must be asked whether the strategies adopted by the Future Harvest Centers in the field on intellectual property – however cautiously drafted – are the most effective contribution toward fulfilling this mission with respect to the poor. Some observations will be made, based on human rights obligations, particularly the right to food and the right to benefit from science. On the one hand, it is not obvious how the poor will benefit directly from intellectual property protection. First, the Centers, when faced with financial constraints, will seek to develop their research where the costs can most effectively be recovered. Second, as the Centers fear to be left out of the new biotechnology development, they need to pursue strategies in order to obtain the most important proprietary technology in these areas. This can be done through 217 IPGRI XI.6. 218 CIMMYT III.1. 219 In a book chapter written, inter alia, by the (now) Director of IFPRI, the three authors find that “…patenting is associated with tremendous administrative costs, which would easily overstrain the CGIAR’s capacity and would divert human and financial resources from its research programs.” (Krattiger, Qaim and von Braun 2000, p. 418). Concern is also expressed in CGIAR documents: “There is a high cost to obtaining and administering patents, and the IARCs [international agricultural research centers] will need to be able to quickly mobilize the required financing in a confidential manner. It is therefore essential that the CGIAR and the IARCs have enough financial resources at their disposal for this purpose” (CGIAR 1998b, p. 23). In a panel report, the following observation is made: “Obtaining protection will require substantial expenditures which may result in the diversion of funds from other activities” (CGIAR 1998d, p. 5). As the financial sources are limited and do not seem to be increasing, any additional cost to obtain and administer patents, will therefore come on the expense at financing for serving the CGIAR’s Mission and be in direct conflict with the FAO-CGIAR Agreement. 220 In this context, the observation by Byerlee and Echeverría (eds.) 2002, p. 14, that commercialization “…runs against the redirecting of public sector priorities to focus on essential public goods” is important.
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specific material transfer agreements, payment of license fees or through cross-licensing. Third, the Centers themselves seek an attractive intellectual property portfolio, which can be used when negotiating cross-licensing agreements. The Centers, based on their particular mandate, could also seek to build understanding that they should obtain privileged access to protected technology.221 On the other hand, it might become evident that the only means through which the products from the CGIAR research can actually reach the farmers and breeders, is by protecting the products resulting from their research, and setting conditions for access to these products. The possible income would then come from the business sector, while public breeders would have access free of charge. It is beyond the scope of this study to analyze whether this ensures access of new seeds to poor farmers in developing States. It is found, however, that the costs of pursuing such a proactive intellectual property strategy might be considerable. Moreover, this strategy might contradict both the actual wording and the spirit of the FAO-CGIAR Agreements, which apply only to the ‘in trust’ germplasm, but which are based on the public good nature of the Centers. Therefore, the CGIAR is faced with considerable challenges when seeking both to meet its obligations relating to the poor and food insecure, as well as the obligations relating to research – within the context of the implementation of intellectual propterty strategies.222 It appears that the active pursuing of intellectual property rights in these Centers is difficult to justify from a human rights perspective. The Centers, while undertaking crucial efforts in the field of research on, and facilitated access to, plant genetic resources for food and agriculture, should not struggle to develop an intellectual property portfolio (patent and plant variety protection), in order to obtain a better negotiating position vis-à-vis the biotechology companies. The CGIAR ‘IPR Guidelines’ and the specific intellectual property policies of the individual Centers will indirectly promote intellectual property protection. Pursuing this strategy will not necessarily direct resources and attention away from the poor. The Centers will in such situation need to increase their attention towards identifying products and purchasers in order to recover the costs involved in the maintenance of intellectual property rights. Alternative approaches of the Future Harvest Centers are to undertake research exclusively on the staple food crops which are not interesting for the private sector, and to 221 This strategy must be based on a shared understanding of the public good nature of the Centers. As the products from the Centers are primarily aimed at reaching the poor without costs, the activities of the Centers do not compete with the products of the biotechnology companies, targeting purchasing farmers. 222 An argument made by Spillane 2002, particularly pp. 89-90, is that while intellectual property rights provide “…excellent incentives to stimulate private sector innovation for commercial gain, they potentially have a distorting effect on the research objectives and directions of public and semi-public sector institutions.” He therefore recommends alternative incentives for public sector research institutions; see also Spillane 1999, p. 49, in which he finds that it is likely that such institutions, including the CGIAR, are not “…in a strong negotiating position regarding access to useful proprietary plant biotechnologies.” See also Murphy 2001, p. 112, commenting particularly on CIMMYT.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
be involved more actively with the local peasants – particularly women – in participatory breeding.223 Such participatory breeding efforts are not new.224 The Centers should promote their identity as non-commercial actors, implying that they do not represent threats for the seed industry, which might give them better bargaining positions. Therefore, the Future Harvest Centers are faced with considerable challenges in light of the growing importance of patent and plant variety protection in agricultural research.225 The response by some has been to resort to the very same tools which are causing the problem, based on a presumption that these tools might contribute to the fulfillment of the mission of the Centers. An alternative strategy could be to more explicitly emphasize the public good character of the Centers, in order to aquire the needed new technology necessary for the research – on non-commercial terms – from the industry.226 Hence, the non-commercial rationale of the research of the Centers, emphasizing the needs of the poor, should be stressed in order to ensure that they are not perceived as competitors to the private sector. 12.3.3
Summary
It was found in Chapter 4.1.1 above, under the clarification of the phrase ‘achieving progressively’ that it is difficult to identify what constitutes deliberate retrogressive measures. Moreover, it is difficult to identify when such deliberate retrogressive measures are nevertheless justified. In Chapter 4.2.3, such deliberate retrogressive measures were identified as ‘acts of commission’ which might be relevant in the context of this book, on an equal basis as ‘the adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations’.227 While the analysis in Chapter 12 does not 223 This strategy is expressed in several reports, see CGIAR 1998b, p. 15: “At one extreme, this bridging function requires that the System maintain a strong continuous connection to the world’s advanced research institutions…[…] At the other extreme, it means that the CGIAR must also maintain a continuous direct connection to farmers.” The report does not answer which of the two shall be prioritized in a situation of conflict, but at least until now the former strategy has been prevailing over the latter. See also Morris and Bellon 2004, p. 24: “CGIAR plant breeders often have weak link to the end users.” For an alternative view, see World Bank 2003, arguing that “…the GCIAR has moved downstream, closer to farmers” (p. 5) and “…address issues that may be important at the local or national level, but are marginal from a global public goods perspective” (p. 35). It should also be noted that the Centers themselves are not investing heavily in transgenic research: “Strategies for deploying genetically engineered varieties are lacking at all Centers, even though some transgenic varieties have been produced” (CGIAR 2000a, foreword, p. xvi). 224 See Eyzaguirre and Iwanaga (eds.) 1996, Friis-Hansen and Sthapit (eds.) 2000 and Morris and Bellon 2004. 225 See the CIMMYT IPR strategy’s preamble: “producing and keeping the products of its research in the public domain, free for use and development both by scientists and farmers, have become increasingly problematic.” 226 See FAO 2004a, p. 94.s 227 Chapter 4.2.3 also identified two ‘act of omission’ relevant to this book, namely the failure of the State to take into account its human rights obligations when entering into agreements,
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find that implementation of TRIPS is ‘manifestly incompatible’ with human rights, the analysis is Chapter 12.3 will assist in answering whether TRIPS implementation might represent deliberate retrogressive measures. First, the findings made in this section are presented. Second, there will be an assessment of whether TRIPS might represent deliberate retrogressive measures, and if such measures are nevertheless justified. Third, some recommendations are given. First, with regard to impact, this study has found that there are distributional impacts, both from the introduction of TRIPS-compatible patent and plant variety protection, and from the increased role of private seed companies in seed provision. At the same time, these results are not as drastic as those resulting from patent protection in the field of medicines, and in some States it is found that the farmers actually have reaped the benefits. Moreover, the original material is free for everyone to use. Regarding research, State obligations relating to research can be read out from Articles 11 and 15, seen in light of Article 2.1. It is not found that the State is effectively prevented from involvement in agricultural research, but there might be problems relating to certain crops, which are increasingly protected by patents.228 While it is recognized that efforts by the private business sector could contribute to the realization of the human rights recognized in the Covenant, the efforts of these actors serve the interests of those with the ability to pay. Human rights realization must identify the most marginalized and develop policies specifically serving these people. In order to fulfill their research obligation under the Covenant, both national and international agricultural research efforts are not restricted from concentrating on developing crops which are not found to be interesting for the commercial sector. By concentrating on providing improved seeds for the benefit of poor farmers, this will also counter the dominance of the private sector. At the same time, the disclosure of the patent claims as well as the the time-limited duration of a patent do not imply that such knowledge is forever removed from the public domain. It should also be noted that most small developing countries will not necessarily be subject to increased patenting simply by adhering to the TRIPS Agreement. Farmers, breeders and scientists in these States still have freedom to operate. In order to optimize the positive impacts and reduce the negative impacts resulting from TRIPS implementation, all the analyzed human rights obligations are found to be relevant. Second, whether implementation of TRIPS might represent a deliberate retrogressive measure, this study does not exclude that TRIPS implementation has negative short-term effects. In this context, two issues relating to implementation are particularly crucial. First, States must not implement a more strict patent and plant variety legislation when implementing TRIPS than the minimum standards of TRIPS require in order to also comply with their human rights obligations. Second, public institutions themselves must and the failure to take steps. These acts are less relevant than the acts of commission, and the emphasis is thus on the latter. 228 Blakeney 2002a, p. 119 observes that TRIPS “…has had a direct impact upon global agricultural research …[as] TRIPS provides the legal infrastructure for the global propertisation of research tools and research products.”
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
adopt research strategies adapted to the situation of increased appropriation of technology through patents and plant variety protection. Each of these will be discussed below. Regarding the first issue, there is general agreement that TRIPS provides minimum standards, but that TRIPS-compliant legislation does not necessarily have to be identical to what is found in industrialized countries. With regard to patent and plant variety protection in the agricultural sector, the flexibility provided for in TRIPS must be applied. This could imply, inter alia, emphasis on a correct and strict application of the substantive eligibility requirements, as well as the applications of the exclusions found in Article 27.2 and 27.3. With regard to the second issue, it must be asked whether public institutions working in the field of food and agriculture should strive to develop large patent and plant breeders’ rights portfolios, or whether these institutions should concentrate on fulfilling the States’ research obligations by directing the research to technologies and crops in which there are less patents and plant breeders’ rights and hence no similar restrictions imposed.229 By choosing the first strategy, the public institution could be more attractive for the private sector, through cross-licensing and strategic alliances. The grant of a patent, moreover, allows the patent holder to diversify strategies in the different markets. Hence, it is possible to extract revenues in industrialized States, while granting licenses in developing States with favorable conditions and at low costs. This can benefit these producers. Finally, in the case where no patent is taken out in a given State, there is a freedom to operate, based on the information provided in a patent. Hence, TRIPS provisions alone do not determine whether TRIPS implementation might represent deliberate retrogressive measures. Moreover, the long-term effects of TRIPS are uncertain, but it cannot be excluded that introduction of patent protection and plant variety, together with sound investment, technology and social policies, will have positive effects, not only on the overall production, but also for the individual farmer and consumer. Therefore, even if TRIPS implementation might represent deliberate retrogressive measures, these measures can be justified as the long-term effects might be positive. As the effects are uncertain, it is difficult to conclude definitively, however. With regard to the third issue, on strategies relating to patents and plant variety protection, three recommendations regarding public agricultural research are presented. First, the public efforts directed toward transgenic and other biotechnology science should not come at the expense of other measures crucial for the fulfillment of the right to food. There is a need to strengthen agricultural research in a whole range of fields. Furthermore, from a human rights perspective, the measures relating to the production of food which do not simultaneously improve the methods of distribution of food, can be questioned, as they are the factors affecting the actual access to food which are most important for the fulfillment of the right to food. Second, the risk is that public research will be undertaken with the conditions and limitations set by the private companies. Companies will most certainly continue to provide access to research results to which the company attaches little commercial val229 This approach is advocated by Keeley and Scoones 2003, pp. 21-22, but they see public sector research investments as only one of four potential scenarios.
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ue, but the subsequent use of this knowledge will continue to have conditions attached to it. Commercially interesting crops have stronger conditions attached. Third, the management of intellectual property requires certain competences and abilities to take risks. While experiences differ, it is considered that commercial actors are better than public actors in making positive use of their intellectual property in order to achieve their objectives.230 As found in Chapter 12.3.2 with regard to the Future Harvest Centers, this is likely to become a costly strategy, and cannot be presumed to be optimal for farmers of developing countries. The less legally complicated strategy for these institutions is to concentrate on the crops which are found by the private companies to be of little commercial value. Still, most agricultural research can be undertaken without being too concerned about infringing upon patent and plant variety protection. Final remarks: This study does not argue against private seed provision, or public-private cooperation in the field of agricultural research. The public research institutions must be particularly attentive of whether such cooperation implies a gradual push toward more patent protection, however. They will both be exposed to patent and plant variety protection, and also encouraged and pressured to develop patent portfolios, which may be necessary for a continued cooperation with private corporations. At the same time, intellectual property protection in the field of food plants might be of importance for stimulating innovative activities among corporate actors. To succeed with intellectual property protection requires considerable human and financial resources involved in both application, enforcement and eventual litigation over these exclusive rights. To recover these costs, public research efforts might be directed toward those groups of farmers with the ability to pay. Therefore, intellectual property protection is to be approached with caution by public agricultural research institutions. The Future Harvest Centers have chosen a cautious, but positive approach toward intellectual property protection. This policy can only be justified if it actually improves the resource-based distribution of food, and is the most effective way of providing improved seeds to those who need it most. Vulnerable and marginalized farmers must have access to modern agricultural technologies, provided through national and international efforts in accordance with the Covenant’s Articles 11.2(a) and 15.1(b). The technologies developed by the private sector, however, will be provided with the conditions and prices that ensure the payment for the investments done by the companies, as well as a proper profit. The State must effectively promote the right to food by investing in appropriate technology for developing and providing seeds to poor farmers. This is based on the accessibility principle, identified by the Committee on Economic, Social and Cultural Rights as a core content of the right to food. Small-holders should not be the ones to ensure the profit for large companies. Rather, they must be served by the public sector according to 230 See Spillane 1999, p. 35: ”While IPRs are excellent incentives to stimulate private sector innovation for commercial gain, they can potentially have a distorting effect on the research objectives and directions of public and semi-public sector institutions.” See also Byerlee and Fischer 2002, p. 941.
Conflict or Compatibility between Human Rights and Patent and Plant Variety Protection?
their needs. More specifically, State actors must not interfere in the farmers’ own breeding and exchange of seeds (respect), they must provide adequate regulation and information relating to the introduction of new technology (protect), as well as effectively provide the products resulting from public breeding and research (fulfill).
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Part V: Conclusions
In this study, it has been found that human rights in general and the right to food in particular are not explicitly taken into account when WTO law is developed and interpreted. There are, however, human rights related provisions both in the WTO Agreement and the TRIPS Agreement which might be included in the drafting of relevant legislation on intellectual property protection, and in the subsequent implementation and enforcement. Moreover, neither the WTO Agreement nor the TRIPS Agreement prevents any State from adopting legislation or measures to safeguard the interests of the marginalized people involved in agriculture. Rather, the fact that issues like farmers’ rights or traditional or community intellectual property rights were not subject to TRIPS negotiations, implies that States are free to adopt legislation in these areas. They can also adopt any relevant measure in order to ensure the realization of the right to food. The only condition is that these laws or measures do not negatively affect the realization of TRIPS, meaning that the TRIPS provisions cannot be given effect. The study has analyzed the relationship on the premise that there is an ‘apparent conflict’ between the TRIPS Agreement and the International Covenant on Economic, Social and Cultural Rights. By interpreting the two treaties, and applying both a narrow understanding of conflict (treaty obligations cannot be complied with at the same time) as well as an understanding of conflict which is more appropriate in the context of economic, social and cultural rights (measures prescribed by the treaties cannot be taken at the same time), conflict between the treaties has not been identified. It must be noted, however, that the impact of the TRIPS Agreement on the Covenant has not been subject to an in-depth study, as this would require extensive studies of economic effects, which are beyond the scope of this legal study. Moreover, it should be noted that the findings of this book cannot be interpreted as supporting any conclusions regarding the relationship between human rights and patent legislation as implemented in some industrialized States. As has been shown, patent and plant variety legislation are implemented more strictly in some jurisdictions than
Sub-Commission 2000a, paragraph 2. Sub-Commission 2001d applies the term ’impact’ in the title, but is in fact not a study of impacts, but more a presentation of several (valid) concerns.
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the TRIPS Agreement permits. Neither can this study be interpreted to explain the relationship between other recognized human rights, such as the right to health, and the TRIPS Agreement. While the study has referred to studies identifying certain effects on prices resulting from the patenting of pharmaceutical products, the conclusions of this book do not apply to the relationship between the right to health and patent rights. The study has found that developing countries which are members of the WTO should make use of the flexibilities for which the TRIPS Agreement allows. TRIPS does provide for a balancing between the interests of the right holders and the public interest. In the WTO context, measures in the field of nutrition should only be subject to scrutiny and eventual criticism if they constitute discriminatory practice or if the intellectual property rights prescribed by the TRIPS Agreement are impossible to enjoy. Developing countries have devoted much attention to TRIPS. On the one hand, this implies adoption of laws in the field of patent and plant variety protection which are not necessarily adapted to their level of technological and economic development. This is motivated by the fear of negative reactions. On the other hand, many developing countries are not implementing legislation as provided for in TRIPS, and are also demanding amendments to the TRIPS Agreement in order to include provisions from other treaties, particularly the Convention on Biological Diversity. To a limited extent human rights obligations have been referred to in these calls for amendments. The emphasis on accessibility of the Doha Declaration on TRIPS and public health reflects one of the core contents of social human rights as recently defined and elaborated, most comprehensively by the Committee on Economic, Social and Cultural Rights. The main findings from each of the chapters will be presented below, starting with Chapter 4. The general obligations found in Part II of the Covenant are necessary for identifying the appropriate level of State obligations arising from the specific rights in Part III of the Covenant. Moreover, applying different approaches will contribute to a better understanding of the nature of the recognized rights. When considering the ‘violations approach’ – which can be termed as an alternative to the ‘progressive realization approach’ as found in Article 2.1 of the Covenant – it has been found that the former had its merits in identifying situations when obligations are not met, and should be developed further. The possible violations are defined on a high level of generality, and are difficult to apply in the context of this study, which focuses on the taking of measures (Chapter 4). The right to food is recognized in the International Covenant on Economic, Social and Cultural Rights by using strong wording, such as ‘ensure’ and ‘fundamental’, and further asserts that the State parties ‘shall take measures’, as well as listing these measures. While the right to food has been recognized recently, there have been few comprehensive efforts to understand the scope of the measures listed in Article 11.2 in the Covenant, particularly in light of the increased role of large corporations becoming heavily involved in agricultural research and production. It was found that measures relating to natural resource development and utilization have gained increased attention, while the States – with some exceptions – have not given sufficient emphasis to the measure relating to improved methods of food production, as well as distribution. One other way to approach this last measure is to state that the States have redefined their obligations relating to this measure, by stagnating investments and paving the way for
Conclusions
commercial actors in the field of research and appropriation of the products resulting from the research (Chapter 5). The rights recognized in Article 15 of the Covenant have only recently been subject to an extensive analysis, inter alia, through the adoption of a Statement and the adoption of General Comment No. 17. It is regrettable that the rights recognized in this article have been ignored for so long, and that the current State reporting on Article 15.1(c) of the Covenant primarily relates to standard intellectual property legislation. It was found that the right to benefit from scientific progress and its applications of Article 15.1(b) raises important questions, including whether State obligations include actual provision of products resulting from scientific research. It has been found that these obligations apply in severe situations where the products are crucial for the integrity and life of people. It cannot be assumed that products which are brought about through investments by private companies shall be available without any conditions set by the producers. Furthermore, it was found that the moral interests of the authors, which are included in the International Covenant on Economic, Social and Cultural Rights, but explicitly excluded from the scope of the TRIPS Agreement, could be applied in order to recognize the rights derived from the intellectual property held by local and indigenous communities (Chapter 6). There are strict requirements which must be fulfilled in order to justify any limitations in the enjoyment of the recognized rights. Unlike derogation provisions under other human rights treaties, only the right to form and join trade unions can be subject to restriction in specific cases, in order to protect prevailing public interests (Chapter 7). In general, Part II of the study identified those human rights obligations and approaches which were found to be of particular importance when considering the degree of conflict or compatibility with the TRIPS Agreement. The analysis of the TRIPS Agreement made it clear that its provisions must be understood in light of the whole WTO Agreement. There are both wider exclusions and wider exceptions in TRIPS than in other intellectual property treaties. Several of the provisions which allow for flexibility in the implementation of the provisions have not been subject to an in-depth interpretation. TRIPS is, however, particularly specific with regard to enforcement (Chapter 8). In presenting the requirements of the ‘effective sui generis system’ for the protection of plant varieties, it was found that such protection does not give room for too much flexibility, and that the enforcement provisions of TRIPS must be complied with. It was argued, however, that the flexibility which TRIPS allows for, and which is wider than both UPOV 1991 and (to a lesser extent) UPOV 1978, should be acknowledged. Moreover, the public interest provisions of TRIPS can be included in an ‘effective sui generis system’ established in accordance with TRIPS. Developing countries, however, prefer adopting UPOV-compatible legislation, which is an absolute requirement for being able to join UPOV. It cannot be excluded that some States choose the UPOV option because of pressure, and because there are still uncertainties regarding the ‘effective sui generis system’ (Chapter 9). In general, Part III of the study demonstrated that intellectual property protection pursues other objectives than human rights protection. Furthermore, it was evident that the forms of intellectual property protection which are recognized in the TRIPS
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Agreement have strong mechanisms to ensure compliance, but that alternative laws and measures to recognize intellectual property are not excluded under an ‘effective sui generis system’. When considering the jurisdiction and jurisprudence of the supervisory bodies of the International Covenant on Economic, Social and Cultural Rights and the TRIPS Agreement particularly, it was found that the adjudicating bodies are by no means excluded from taking into account provisions of other treaties, to the extent that these contribute to clarifying the terms of the relevant agreement. It must be presumed that an explicit human rights reference will be disputed by some WTO member States, and that this will be understood as ‘judicial activism’ by some. While human rights have certain relevance, the tensions relating to human rights in the WTO imply that it is rather unlikely that any of the decision-making bodies will make references to, or base their decisions on human rights. Moreover, it is uncertain as to whether the International Court of Justice, which has a more general jurisdiction, will consider itself competent to deliver an opinion, or alternatively a judgment with regard to human rights and intellectual property rights (Chapter 10). When analyzing the methods for identifying possible conflict, it was found that understanding conflict on the level of ‘impeding measures’ could serve as a supplement to understanding conflict only as ‘conflicting obligations’. The principles for solving conflicts are not easily applicable in the context of this book, however. It was also found that insufficient protection of human rights can be a concern of the world community at large, as all States will have an interest in the fulfillment of human rights obligations, which give human rights certain weight. This is most certainly so in situations of grave violations of human rights. Moreover, it is not possible to amend human rights treaties, unlike international economic law treaties. The specific consequences of these two principles for the purpose of this book, are not obvious, however (Chapter 11). While it is not possible to identify treaty conflict, based on neither the strict understanding of conflict, nor on the level of measures, there are human rights obligations that should be more actively observed and taken into account in the implementation of the TRIPS Agreement, as well as the International Covenant on Economic, Social and Cultural Rights. By this approach, human rights, and the right to food in general, could serve as important guidance in the further development of patent and other intellectual property legislation. It was also acknowledged that a magnitude of measures are available to ensure better access to food, and better sharing between the original breeders and the industrial breeders and genetic engineers (Chapter 12). In general, Part IV of the study confirms that human rights – including economic, social and cultural rights – are increasingly recognized. The potential for bringing human rights into the WTO is limited, however. This is mostly due to the general wording of these rights and the lack of legislation on the national level, but also the fact that no WTO agreement refers to human rights as such, but only to policy objectives, such as health and nutrition. Industrialized countries have expressed the strongest reservations against any human rights references in the context of the TRIPS Agreement. Human rights considerations should not be alien, either to patent legislation or to other intellectual property laws.
Conclusions
Based on these findings from the research questions, the following conclusions seem reasonable. Conclusions relating to law are given first, followed by the conclusions relating to policy issues. It can be argued that law only assists in addressing some aspects of the relationship between obligations imposed by the Covenant and the TRIPS Agreement. Therefore, stronger political commitments will be required to ensure a mutually supporting relationship between the two. 1. Several aspects of the TRIPS flexibility have not been tested before the dispute settlement system. Any State which carefully observes the provisions of TRIPS should not be restricted from taking the public measures it deems necessary for ensuring the right to food. These measures can only be problematic if they clearly contradict TRIPS. There are several measures which can be applied in order to realize the human rights as recognized in the Covenant which would never conflict with the enjoyment of patent rights as recognized in the TRIPS Agreement. Finally, the exercise of patent rights must be considered as a means to an end, and can therefore be subject to public interests, as defined by national legislation, including national legislation to ensure respect of, protection of and fulfillment of human rights. 2. The object and the purpose of the two treaties differ. In short, the Covenant pursues the protection of the rights of the most vulnerable and marginalized human beings, while TRIPS pursues the protection of companies and investors. Based on the narrow understanding of conflict, it is difficult to identify conflicts between the TRIPS Agreement and the Covenant. Only if something is mandated in one treaty and prohibited in another, alternatively that a given measure cannot be taken because of the measures prescribed in another treaty, is there an actual conflict, in accordance with this narrow understanding. It was not found that there is a conflict on the level of measures, either. Furthermore, it must be noted that the dependency of seed providers resulting from legal (intellectual property) protection is not as strong as is the case with biological (genetic use restriction) protection, and the farmers have the possibility to choose whether to buy protected seeds or not – provided that sufficient information has been made available. 3. Human rights recognized in the International Covenant on Economic, Social and Cultural Rights and obligations imposed by these rights have identified a balance between the right of the individual producer of any intellectual property and the community which is of relevance in guiding the future development of patent and plant variety legislation. All human rights obligations analyzed in this study are found to be relevant. This indicates that human rights must be given more emphasis in intellectual property protection, in line with what was found by the IPR Commission. 4. Patent protection implies transfer of resources from technology consumers to technology producers. No evidence has been presented that agriculture-dependent developing countries, particularly the least-developed countries, are going to benefit from im
IPR Commission 2002, p. 6.
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plementation of the TRIPS Agreement in the short term. It is not possible to make long term predictions. The requirement in Article 2.1 of the Covenant that States shall ‘take steps’ ‘through all appropriate means’ and ‘to the maximum of its available resources’ could be more difficult to implement for technology-poor developing countries, as the implementation of TRIPS might affect their available resources – at least in the short term. Importantly, while all States are subject both to the general obligations in Article 2.1 and the rights-specific obligations in Articles 6 through 15, the assessment of the implementation of the Covenant must take into consideration the available resources of the respective State. Moreover, for developing countries, the substantive requirements of the TRIPS Agreement imply that these countries are obliged to implement patent protection before their economic and technological capacity would naturally foster the adoption of legislation for such protection. The implementation of the TRIPS provisions might divert attention and resources away from implementing the rights of the Covenant as expeditiously and effectively as possible. More difficult implementation is not a precondition for identifying treaty conflict, however. 5. The too strong emphasis on implementation of intellectual property rights might divert attention from the implementation of other measures necessary for the realization of the right to food. The reason for this emphasis is primarily the more specific obligations of the TRIPS Agreement, but also the stronger threat of sanctions for non-compliance with any of the WTO agreements. Legislative processes are undertaken in all WTO member States in order to ensure TRIPS-compatibility, but not all WTO member States have the necessary legislation in place. There is no basis for supposing that developing States are categorically against adopting intellectual property legislation. A high level of intellectual property protection could result in a better access to new biotechnology provided by the seed industry. Moreover, some public research institutions in developing countries are making extensive use of patent protection as a means of improving their research capacity and facilitating delivery of the new seeds. 6. Public agricultural research efforts are – contrary to the wording of Article 11.2(a) of the Covenant – stagnating, at least in industrialized States. Contrarily, most developing countries have seen increases in agricultural research from the original very low level. The most serious consequence is probably the neglect of research into the staple crops on which many of the most marginalized people depend. Public research should particularly concentrate on crops in which there is presently very limited private interest, as the market is too limited for justifying heavy investments in research on those crops. Participatory plant breeding, involving women in particular, is crucial in order to achieve success in these efforts. In addition, a State should always consider whether improved methods of food production actually result in better realization of the right to food. If access or distribution is restricted by applying these improved methods of food production, the State should at least ensure that farmers have alternative access to seeds. 7. Conservation and development of plants by farmers has been crucial for the enjoyment of the right to food, and will continue to be so also in the future. TRIPS does not
Conclusions
prevent any intellectual property category which is not recognized in TRIPS. Patent and plant variety protection is generally not available for traditional knowledge as relating to genetic resources, which have been developed by local communities. The fact that TRIPS only regulates the material and trade-related dimensions of intellectual property can by no means be an argument against implementing national policies to recognize, preserve and promote efforts and contributions taking place within local communities. While the human rights provisions in Article 15 of the Covenant have a vague and general wording, they can provide guidance in the adoption of such laws. Moreover, there are provisions providing for recognition, financial reward and effective participation relating to utilization of biological and plant genetic material in international treaties, such as the CBD and the ITPGRFA. The main task of establishing the appropriate mechanisms for conservation, use, improvement and sharing of biological resources and genetic material, which is primarily found in developing countries, still remains to be appropriately implemented.
443
Acronyms
(The full name of human rights treaties is used, and the term ‘Covenant’ refers strictly to the International Covenant on Economic, Social and Cultural Rights): CBD:
Convention on Biological Diversity
CGIAR:
Consultative Group on International Agricultural Research
CIMMYT:
Centro Internacional de Mejoramiento de Maíz y Trigo (International Maize and Wheat Improvement Center)
CTD:
Committee on Trade and Development
CTE:
Committee on Trade and Environment
DSU:
WTO Dispute Settlement Understanding
EPC:
European Patent Convention
EPO:
European Patent Office
FAO:
Food and Agricultural Organization
GATS:
General Agreement on Trade in Services
GATT 1994:
General Agreement on Tariffs and Trade, as adopted in 1994
GRTKF:
Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore
ICJ:
International Court of Justice
ILC:
International Law Commission
446
Acronyms
ILO:
International Labour Organization
IPGRI:
International Plant Genetic Resources Institute
ITPGRFA:
International Treaty on Plant Genetic Resources for Food and Agriculture
OAPI:
African Intellectual Property Organization
OAU:
Organization for African Unity (currently AU: African Union)
OJ EPO:
Official Journal of the European Patent Office
PCT:
Patent Cooperation Treaty
PLT:
Patent Law Treaty
SPLT:
Substantive Patent Law Treaty
SPS:
Agreement on Sanitary and Phytosanitary Measures (part of Annex 1A to the WTO Agreement)
TBT:
Agreement on Technical Barriers to Trade (part of Annex 1A to the WTO Agreement)
TRIPS:
Trade-Related Aspects of Intellectual Property Rights
UNAIDS:
Joint United Nations Programme on HIV/AIDS
UNESCO:
United Nations Educational, Scientific and Cultural Organization
UPOV:
International Union for the Protection of New Varieties of Plants
USPTO:
United States Patent and Trademark Office
WHO:
World Health Organization
WTO:
World Trade Organization
WIPO:
World Intellectual Property Organization
Symbols
United Nations A/…:
Documents by the United Nations General Assembly
A/CONF…:
Decisions from International Conferences and Summits
E/…:
Documents by the United Nations Economic and Social Council
E/CN.4/…:
Documents by the Commission on Human Rights
E/CN.4/Sub.2/…:
Documents by the Sub-Commission on the Promotion and Protection of Human Rights
E/C.12/…:
Documents by the Committee on Economic, Social and Cultural Right
World Trade Organization WT/MIN…:
Decision by the WTO Ministerial Conference
WT/GC/W/…:
Documents to the WTO General Council
WT/GC/M/…:
Minutes of Meeting in General Council
IP/C/W/…:
Documents to the WTO Council on TRIPS
IP/C/M/…:
Minutes of Meeting in the Council on TRIPS
WT/TPR/M/…:
Minutes of Meeting in Trade Policy Review Body
448
Symbols
WT/CTE/W/…:
Documents to the WTO Committee on Trade and Environment
WT/DS...:
Documents from the WTO dispute settlement system (AB indicating Appellate Body Report; RW indicating Recourse to Article 21.5 of the DSU; ARB indicating Decision by the Arbitrators)
Food and Agricultural Organization and CGIAR CFS…:
Documents to the Committee on Food Security
CGRFA…:
Documents to the Commission on Genetic Resources for Food and Agriculture
COAG…:
Documents to the Committee on Agriculture
ICW/…:
International Centers Week (of the GCIAR)
Convention on Biological Diversity UNEP/CBD/COP/…:
Documents to the Conference of the Parties of the CBD
UNEP/CBD/SBSTTA/…: Documents to the Subsidiary Body on Scientific, Technical and Technological Advice WIPO/UPOV WO/GA/…: CAJ…:
Documents to the General Assembly of WIPO Documents to the Administrative and Legal Committee of UPOV
Definitions
The reader should not be required to have detailed knowledge of biotechnology or genetic engineering, but the following terms will be of use for further reading. All definitions are from FAO’s Glossary of Biotechnology for Food and Agriculture (2001): Biotechnology:
Any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use.
Variety:
A subdivision of species with distinct morphological characters.
Hybrid:
The offspring of two genetically unlike parents.
Landrace: (‘farmers’ variety’)
An early, cultivated form of a crop species, evolved from a wild population and generally composed of a heterogenous mixture of genotypes.
Genotype:
The genetic constitution of an organism.
Phenotype:
The visible appearance of an individual which reflects the reaction of a given genotype with a given environment.
Genetic resource:
Genetic material of actual or potential value. Genetic material includes any material of plant, animal, microbial or other origin containing a gene. A gene is defined as the “unit of heredity transmitted from generation to generation during sexual or asexual reproduction.”
Genetic engineering:
A technique to modify genotype, and hence phenotype, by transgenesis, which is defined as “the introduction of a gene or genes into cells which leads to the transmission of the input gene to successive generations.”
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Definitions
Germplasm:
The collection of plant embryos held in gene banks, mostly agricultural research centers.
Plant genetic resource: Reproductive or vegetative material Transgenic:
An individual in which a transgene has been integrated into its genome (the term GMO might be more common).
Furthermore, the terms ‘plant’, ‘crop’ and ‘species’ are used, in general referring to the same phenomenon. It was also chosen to use ‘plant breeders’ rights’ and ‘plant variety protection’ to describe the same form of protection.
Table of Cases
Permanent Court of Arbitration decisions Island of Palmas case, final awards from the Permanent Court of Arbitration 4 April 1928 (United States of America v. The Netherlands) II Review of International Arbitration Awards, p. 831.
PCIJ decisions Lotus, France v. Turkey, PCIJ Series A No. 10 (Judgment 7 September 1927), p. 4. Interpretation of the Convention of 1919 Concerning Employment of Women During the Night, Series A/B No. 50 (Advisory Opinion 15 November 1932), p. 365.
ICJ decisions Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), ICJ Report 1947-48 p. 57. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion 30 March 1950, ICJ Reports 1950, p. 65. Reservations to the Genocide Convention, Advisory Opinion, 28 May 1951, ICJ Report 1951, p. 15. Ambieltos Case (Greece v. United Kingdom) Judgment 1 July 1952, ICJ Report 1952, p. 28. Rights of Nationals of the United States of America in Morocco (France v. United States), Judgment 27 August 1952, ICJ Report 1952, p. 176. Minquiers and Ecrehos (France v. United Kingdom), Judgment 17 November 1953, ICJ Report 1953, p. 47. Certain Expenses of the United Nations, Judgment 20 July 1962, ICJ Report 1962, p. 151. Case Concerning the Barcelona Traction, Light and Power Company, Ltd, Judgment 5 February 1970, ICJ Report 1970, p. 3. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution€276 (1970), Advisory Opinon 26 January 1971, ICJ Reports 1971, p. 16. Agean Sea Continental Shelf (Greece v. Turkey), Judgment 19 December 1978, ICJ Reports 1978, p. 3.
452
Table of Cases
Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 325. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment 27 June 1986, ICJ Reports 1986, p. 14. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Order of 14 April 1992 (Request for the Indication of Provisional Measures), ICJ Reports 1992, p. 3. East Timor (Portugal v. Australia), Judgment 30 June 1995, ICJ Reports 1995, p. 90. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BosniaHerzegovina v. Yugoslavia), Judgment 11 July 1996, ICJ Reports 1996, p. 595. The Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion 8 July 1996 ICJ Reports 1996, p. 68. Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment 25 September 1997, ICJ Reports 1997, p. 7. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion 9 July 2004.
Intellectual Property and Human Rights Cases Europe European Commission of Human Rights: Smith Kline and French Laboratories v. the Netherlands, Decision on admissibility of application, 4 October 1990, in European Commission of Human Rights Decision and Reports Vol. 66, pp. 70-81 European Court of Human Rights: Austria v. Italy (Case 788/60), in 4 Yearbook of the European Convention on Human Rights 1961, Martinus Nijhoff Publishers, The Hague, p. 116. –
Ireland v. United Kingdom, Series A, No. 25, (1978) 2 E.H.R.R. 25.
–
Tyrer v. United Kingdom, Series A, No. 26 (1978) 2 E.H.R.R. 1.
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British American Tobacco Ltd.v. The Netherlands, Series A, No 331-A, (1995) 21 E.H.R.R. 409.
–
Loizidou v. Turkey, Series A, No. 310 (1995) 20 E.H.R.R. 99.
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Thlimmenos v. Greece (2001) 31 E.H.R.R. 411 (Judgment of 6 April 2000).
European Court of Justice: Bilka-Kaufhaus GmbH v. Weber von Hartz, (1986) IRLR 317 (ECJ). –
Parfumes Christian Dior SA v. Tuk Consultancy BV (C-300/98) and Assco Gerüste GmbH v. Wilhelm Layher GmbH (C-392/98) (joined cases [2000] ECR I-11307).
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Kingdom of the Netherlands v. European Parliament and Council of the European Union, C-377/98, Opinion of Advocate General Jacobs.
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Kingdom of the Netherlands v. European Parliament and Council of the European Union, C-377/98, Judgement of the Court ECR 2000 I-6229.
USA Supreme Court of the United States: Asgrow Seed Co. v. Winterboer, 513 US 179 (1995).
Table of Cases
–
J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l., Inc., 534 U.S. 124 (2001).
Court of Appeals for the Federal Circuit: W. L. Gore & Assoc. v. Garlock, Inc., 721 F.2d 1540 (Fed. Cir. 1983). –
Scripps Clinic and Research Foundation v. Genentech, Inc., 927 F.2d 1565, 18 USPQ 2d 1001 (Fed. Cir. 1991).
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Madey v. Duke University, Petition for a Writ of Cert., 307 F. 3d 1351 (Fed. Cir. 2002).
8 Circuit: Pioneer Hi-Bred International v. Holden Foundation Seeds, Inc., 35 F.3d 1226 (8th Cir. th
1994). US Patent and Trademark Office Board of Appeal: Ex parte Hibberd, 227 USPQ 443 (1985).
Other States Germany: Bundesgerichthof: BGHZ 52, 74: Rote Taube, 27 March 1969. Supreme Court of Québec: Gosselin c. Québec, Cour supérieure du Québec, C.S. Montreal 50006-00012-860, 27 May 1992. Federal Court of Canada: Monsanto Canada Inc. and Monsanto Company v. Percy Schmeiser and Schmeiser Enterprises Ltd: (T-1593-98, 29 March 2001), 2001 FCT 256. Supreme Court of Canada: Harvard College v. Canada (Commisioner of Patents): (4.S.C.R 45, 5 December 2002), 2002 SCC 76. –
Monsanto Canada Inc. and Monsanto Company v. Percy Schmeiser and Schmeiser Enterprises Ltd: (A-367-01, 21 May 2004), 2004 SCC 34.
Supreme Court of India: People’s Union for Civil Liberties v. Union of India and others: Writ Petition [Civil] No. 196 of 2001: Interim orders of 23 July 2001, 3 September 2001, 28 November 2001, 8 May 2002, 2 May 2003, 20 April 2004, 27 April 2004, 29 April 2004. Swiss Federal Supreme Court: Kodak SA v. Jumbo-Markt AG (4C.24/1999/rnd - 7 December 1999) BGE 126 III 129. Supreme Court of Japan: Aluminium Wheels Case, No H-7(O) 1998, 1 July 1997. South Africa Constitutional Court: Minister of Health v. Treatment Access Campaign and Others, CCT 8/02, 5 July 2002. –
Government of South Africa and Others v. Grootboom and others, CCT 11/00, 4 October 2000.
Patents and Plant Variety Certificates European Patent Office: Technical Board of Appeal: Lubrizol / Hybrid plants, T 0320/87, decided 10 November 1988 (EPO Official Journal 1990, p. 71). –
Opposition Division: Howard Florey Institute/ Green Group, V 0008/94 (EPO Official Journal 1995, p. 388).
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Technical Board of Appeal: Plant Genetic Systems, T 356/93, decided 21 February 1995 (EPO Official Journal 1995, p. 545).
–
Technical Board of Appeal: Transgenic Plant/ Novartis, T 1054/96, decided 13 October 1997 (EPO Official Journal 1998, p. 511).
453
454
Table of Cases
–
Enlarged Board of Appeal: Transgenic Plant/ Novartis II, G 0001/98, decided 20 December 1999 (EPO Official Journal 2000, p. 111).
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Particle-mediated transformation of soybean plants and lines: Agracetus (now Monsanto), European Patent No. 301,749, granted 2 March 1994, patent partly upheld by EPO Opposition Division after hearing on 6 May 2003, subsequently appealed 28 October 2003 as T 1165/03; revoked 3 May 2007 by the EPO Technical Board of Appeal.
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EP 0 744€888 B1 (PCT patent WO9522598): Corn plants and products with improved oil composition (Du Pont), granted 30 August 2000, revoked 12 February 2003.
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EP 0€445€929 B1: Wheat and derived products (Monsanto), granted 21 May 2003, Bulletin 2003/21, revoked 23 September 2004.
US Patent and Trademark Office: Cytoplasmic male sterile quinoa: Research Corporation Technologies, Inc., US patent 5,304,718, granted 19 April 1994 [abandoned by the patent holder, Colorado State University, 1 May 1998]. –
Use of turmeric in wound healing: University of Mississippi Medical Center, US patent 5,401,504, granted 28 March 1995 [revoked by the USPTO 28 March 1997].
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Fungicidal compositions derived from neem oil and neem wax fractions: W. R. Grace & Co., US patent 5,409,708, granted 25 April 1995.
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Hydrophic extracted neem oil-a novel insecticide: W. R. Grace & Co., US patent 5,411,736, granted 2 May 1995.
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Basmati rice lines and grains: RiceTec Inc, US patent 5,663,484, granted 2 September 1997 [after reexamination 15 of 20 claims were invalidated].
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Control of plant gene expression: Delta & Pine Land/USDA US patent 5,723,765, granted 3 March 1998.
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Field bean cultivar named enola: Larry M. Proctor, US patent 5,894,079, granted 13 April 1999 [formal request for re-examination filed by CIAT (International Center for Tropical Agcriculture) 20 December 2000].
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Control of plant gene expression: Delta & Pine Land/USDA, US patent 5,925,808, granted 20 July 1999.
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Control of plant gene expression: Delta & Pine Land/USDA, US patent 5,977,441, granted 2 November 1999.
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Bean-nut popping beans: Appropriate Engineering and Manufacturing, US patent 6,040,503 (PCT patent WO9911115), granted 21 March 2000.
Literature
Abbott, F.M. 2004: “WTO Settlement Practice Relating to the Agreement on Trade-Related Intellectual Property Rights”, in F. Ortino and E.U. Petersmann (eds.): The WTO Dispute Settlement System 1995-2003, Kluwer Law International, The Hague, London, New York. Adalsteinsson, R. and P. Thórhallson 1999: “Article 27”, in G. Alfredsson and A. Eide (eds.): The Universal Declaration of Human Rights – A Common Standard of Achievement, Martinus Nijhoff Publishers, The Hague, Boston, London. Adams, S. and V. Henson-Apollonio 2002: Defensive Publishing: A Strategy for Maintaining Intellectual Property as Public Goods, ISNAR Briefing Paper No. 53, The Hague. Adcock, M. and M. Llewelyn 2000: Micro-Organisms, Definitions and Options under TRIPS, Occasional Paper 2, Quaker United Nations Office, Geneva. Addo, M.K. 1988: “The justiciability of economic, social and cultural rights”, in Commonwealth Law Bulletin Vol. 14, No. 4, pp. 1425-1432. Agrawal, A. 1995: “Dismantling the Divide Between Indigenous and Scientific Knowledge”, in Development and Change, Vol. 26, pp. 413-439. Alexy, R. 2002: A Theory of Constitutional Rights, Oxford University Press, Oxford and New York. Alfredsson, G. 2001: “Technical Cooperation in the Field of Economic, Social and Cultural Rights”; in A. Eide, C. Krause and A. Rosas. (eds.): Economic, Social and Cultural Rights – A Textbook (2nd Revised Edition), Martinus Nijhoff Publishers, Dordrecht, Boston, London. Allison, J.R and M.A. Lemley 1998: “Empirical Evidence on the Validity of Litigated Patents”, in American Intellectual Property Law Assocation Quarterly Journal Vol. 26, No. 1, pp. 185-275. Almekinders, C.J.M. and N.P. Louwaars 1999: Farmers’ Seed Production: New Approaches and Practices, Intermediate Technology Publications, London. Alston, J.M., P.G. Pardey and J. Rosenbom 1998: “Financing Agricultural Research: International Investment Patterns and Policy Perspectives”, in World Development Vol. 26, No. 6, pp. 10571072. Alston, J.M., P.G. Pardey and M.J. Taylor 2001: Agricultural Science Policy: Changing Global Agendas, John Hopkins University Press, Baltimore. Alston, J.M. and R.J. Venner 2000: The Effects of the US Plant Variety Protection Act on Wheat Genetic Improvement, EPTD (Environment and Production Technology Division) Discussion Paper No. 62; International Food Policy Research Institute, Washington D.C.
456
Literature
Alston, P. 1979: “The United Nation’s Specialized Agencies and Implementation of the International Covenant on Economic, Social and Cultural Rights”, in Columbia Journal of Transnational Law, Vol. 18, No. 1, pp. 79-118. __1984: “International Law and the Human Right to Food”, in P. Alston and K. Tomasevski (eds.), 1984: The Right to Food, Martinus Nijhoff Publishers, Dordrecht. __2001: “Peoples’ Rights: Their Rise and Fall”, in P. Alston, (ed.): Peoples’ Rights, Oxford University Press, Oxford and New York. __2002: “Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann”, in European Journal of International Law, Vol. 13, No. 4, pp. 815-844. Alston, P. and G. Quinn 1987: “The Nature and Scope of State Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights, in Human Rights Quarterly,Vol. 9, No. 2, pp. 156-229. Alston, P. and B. Simma 1992: “The Sources of Human Rights Law: Custom. Jus Cogens and General Principles”, in The Australian Year Book of International Law, Vol. 12, Australian National University, Faculty of Law, Canberra. Altieri, M.A. 2001: The Ecological Impacts of€Agricultural Biotechnology; see: <www.actionbioscience.org/biotech/altieri.html>. Alvarez, J.E. 2001: “How Not to Link: Institutional Conundrums of an Expanded Trade Regime”, in Widener Law Symposium Journal, Vol VII, pp. 1-19 (Keynote Address for symposium on “The World Trade Organization and the Structure of Global Governance”). Andersen, R. 2004: “FAO and the Protection of Plant Genetic Resources”, in Yearbook of International Co-Operation on Environment and Development 2003/2004, Earthscan. London. Anderson, K. et al. 2001: “Estimating the Global Economic Effects of GMOs”, in P. G. Pardey (ed.): The Future of Food Biotechnology: Markets and Policies in an International Setting, International Food Policy Research Institute, Washington D.C. (distributed by John Hopkins University Press), pp. 49-74. Annacker, C. 1994: “The Legal Regime of Erga Omnes Obligations in International Law”, Austrian Journal of Public and International Law, Vol 46, No.2, pp 131-166. Aoki, K. 1998: “Neocolonialism, Anticommons Property, and Biopiracy in the (Not-so-Brave) New World Order of International Property Protection”, in Indiana Journal of Global Legal Studies, Vol. 6, No. 1, p. 11-58. __2003: “Weeds, Seeds and Deeds: Recent Skirmishes in the Seed Wars”, in Cardozo Journal of International and Comparative Law, Vol. 11, pp. 247-331. Arambulo, K. 1999: Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects, Intersentia, Antwerpen, Groningen, Oxford. Arup, C. 2000: The New World Trade Organization Agreements: Globalizing Law Through Services and Intellectual Property, Cambridge University Press, Cambridge and New York. Azoulay, P., W. Ding and T. Stuart 2004: The Impact of Academic Patenting on (Public) Research Output, paper presented for the American Economic Association annual meeting 2005, at <www.aeaweb.org/annual_mtg_papers/2005/0108_0080_0903.pdf>. Banik, D. 2003: Democracy, drought and starvation in India: Testing Sen in Theory and Practice, Ph.D. Thesis, Department of Political Science, Faculty of Social Sciences, University of Oslo, Series No. 35/2003, Oslo, Norway.
Literature
Bard, R. 1985: ”The Right to Food”, in Iowa Law Review, Vol. 70, 1985, pp. 1279-1291. Bartels, L. 2001: “Applicable Law in WTO Dispute Settlement Proceedings”, in Journal of World Trade, Vol. 35, No. 3, pp. 499-519. __2002: “Article XX of GATT and the Problem of Extraterritorial Jurisdiction: The Case of Trade Measures for the Protection of Human Rights”, in Journal of World Trade, Vol. 36, No. 2, pp. 353-403. Barton, J. 1995: “Patent Scope in Biotechnology”, in International Review of Industrial Property and Copyright Law, Vol. 26, No. 5. pp. 605-617. __2004: “Issues Posed by a World Patent System”, in Journal of International Economic Law, Vol 7. No. 2, pp. 341-357. Barton, J. and W. Siebeck 1992: Intellectual Property Issues for the International Agricultural Research Centers, Issues on Agriculture 4, Consultative Group on International Agriciultural Research, Washington D.C. Beadle, A. 2000: “Intellectual Property Rights Issues and Developing Countries: A Private-Sector Perspective”, in M. Qaim, A.F. Krattiger and J.v. Braun (eds.): Agricultural Biotechnology in Developing Countries: Towards Optimizing the Benefits for the Poor, Kluwer, Boston, Dordrecht, London. Beetham, D. 1999: Democracy and Human Rights, Polity Press, Cambridge University Press, United Kingdom. Beier, F.-K. 1984: “One Hundred Years of International Cooperation – The Role of the Paris Convention in the Past, Present and Future”, in International Review of Industrial Property and Copyright, Vol. 15, No. 1, pp. 1-20. Bellmann, C. G. Dutfield and R. Meléndez-Ortiz 2003: Trading in Knowledge: Development Perspectives on TRIPS, Trade and Sustainability, Earthscan, London. Bernhardt, R. 1988: “Thoughts on the Interpretation of Human-Rights Treaties”, in F. Matscher and H. Petzold (eds.): Protecting Human Rights: The European Dimension, Studies in Honour of G. J. Wiarda, C. Heymanns, Cologne. Binenbaum E. et al. 2000: South-North Trade, intellectual property jurisdictions and freedom to operate in agricultural research on staple crops, Environment and Production Technology Division Discussion Paper No. 70, International Food Policy Research Institute IFRPI, Washington D.C., USA. Binswanger, H.P. 1994: “Policy Issues: A View From World Bank Research”, in J. Anderson (ed.): Agricultural Technology: Policy Issues for the International Community, CABI, Wallingford, Oxon, in association with the World Bank. Birnie, P. and A. Boyle 2002: International Law and the Environment, 2nd Edition, Oxford University Press, Oxford, UK. Black’s Law Dictionary, 7th Edition 1999, West Group, St.Paul, Minnesota, USA. Blackett, A. 1999: “Whither Social Clause? Human Rights, Trade Theory and Treaty Interpretation”, in Columbia Human Rights Law Review, Vol. 31, No. 1, pp. 1-80. Blakeney, M. 1996: Trade Related Aspects of Intellectual Property Rights: A Concise Guide to the TRIPS Agreement, Sweet and Maxwell, London. __2001: “Intellectual Property Aspects of Traditional Agricultural Knowledge”, in P. Drahos and M. Blakeney (eds.): Perspectives on Intellectual Property Vol. 9: “IP in Biodiversity and Agriculture” Sweet and Maxwell, London, in co-operation with Queen Mary Intellectual Property Research Institute, Queen Mary, University of London.
457
458
Literature
__2002a: “Protection of Plant Varieties and Farmers’ Rights”, in European Intellectual Property Review, Vol. 24, Issue 1, pp. 9-19. __2002b: “Agricultural Research: Intellectual Property and the CGIAR System”, in Drahos, P. and Mayne, R.: Global Intellectual Property Rights: Knowledge, Access and Development, Palgrave MacMillan, Hampshire, UK, and New York, in cooperation with Oxfam, pp. 108-124. __2003: Stimulating Agricultural Innovation, unpublished paper presented at the seminar “International Public Goods and Transfer of Technology under a Globalized Intellectual Property Regime”, Duke Law School, 4 – 6 April 2003 (on file with author). Blakeney, M. et al. 1999: “Intellectual property rights and agricultural biotechnology”, in J.I. Cohen, (ed.): Managing Agricultural Biotechnology – Addressing Research Program Needs and Policy Implications, “Biotechnology in Agriculture Series” No. 23, CABI Publishing, Wallingford, Oxon & New York. Bodenhausen, G.H.C 1968: Guide to the Application of the Paris Convention for the Protection of Industrial Property as Revised at Stockholm in 1967, United International Bureaux for the Protection of Intellectual Property (BIRPI), Geneva. Boerma, A., 1976: A right to food, Food and Agricultural Organization (FAO), Rome. Bollier, D. 2003: Silent Theft - The Private Plunder of our Common Wealth, Routledge, London. Bontinck, G. 2001: The TRIPs Agreement and The ECJ: A New Dawn? Some Comments About Joined Cases C-300/98 and C-392/98, Parfums Dior and Assco Gerüste, Jean Monnet Working Paper 16/01, Jean Monnet Programme <www.jeanmonnetprogram.org/papers/01/013901. html>. Boyd, S.L., W.A. Kerr and N. Perdikis, 2003: Agricultural Biotechnology versus Intellectual Property Rights: Are Developing Countries at the Mercy of Multinationals?”, in Journal of World Intellectual Property, Vol. 6, No. 5, pp. 211-232. Boyle, A. and M.R. Anderson (eds.) 1996: Human Rights Approaches to Environmental Protection, Clarendon Press, Oxford and New York. Braithwaite, J. and Drahos, P., 2000: Global Business Regulation, Cambridge University Press, Cambridge, U.K. Branstetter, L.G 2004: “Do Stronger Patents Induce More Local Innovation?”, in Journal of International Economic Law, Vol 7. No. 2, pp. 359-370. Brownlie, I. 1987: The Human Right to Food, Study prepared for the Commonwealth Secretariat, London. __1998: Principles of Public International Law (Fifth Edition), Oxford University Press, United Kingdom. __2003: Principles of Public International Law (Sixth Edition), Oxford University Press, United Kingdom. Bruinsma, J. 2003 (ed.): World agriculture: towards 2015/2030. A FAO perspective, FAO, Rome, in cooperation with Earthscan, London. Brush, S.B. 1996: “Whose Knowledge, Whose Genes, Whose Rights?”, in S.B. Brush and D. Stabinsky (eds.): Valuing Local Knowledge: Indigenous People and Intellectual Property Rights Island Press, Washington D.C. __2001: “Genetically Modified Organisms in Peasant Farming: Social Impact and Equity” in Indiana Journal of Global Legal Studies, Vol. 9, No. 1, pp. 135-162.
Literature
Bryde, M. 2004: Plant and Animal Variety: The Variety Exceptions of the European Patent Organisation and the European Community Assessed in Relation to Patentable Subject Matter, FNI Report 4/2004, The Fridtjof Nansen Instititute, Lysaker, Norway. Buck. P. 1994: Geistiges Eigentum und Völkerrecht: Beitrage des Völkerrecht zur Fortentwicklung des Schutzes von geistigem Eigentum, Tübinger Schriften zum internationalen und europäischen Recht, Band 30, Duncker & Humblot, Berlin. Buergenthal, T. 1985: “The Advisory Practice of the Inter-American Human Rights Court”, in American Journal of International Law, Vol. 79, Issue 1, pp. 1-27. Bugos, G. E. and D.J. Kevles 1992: “Plant as Intellectual Property: American Practice, Law and Policy in a World Context”, in Osiris Vol. 7. No. 1, pp. 75-104. Busch, N. A. 2002: “Jack and the Beanstalk: Property Rights in Genetically Modified Plants”, in Minnesota Intellectual Property Review, Vol. 3 , No. 1, pp. 1-234. Byerlee, D. and R.G. Echeverría 2002: “Agricultural Research Policy in an Era of Privatization: Introduction and Overview”, in D. Byerlee and R.G. Echeverría (eds.): Agricultural Research Policy in an Era of Privatization, CABI Publishing, Wallingford, Oxon, UK. Byerlee, D. and K. Fischer 2002: “Accessing Modern Science: Policy and Institutional Options for Agricultural Biotechnology in Developing Countries”, in World Development, Vol. 30, No. 6, pp. 931-948. Byers, M. 2001: “Power, Obligation, and Customary International Law”, in Duke Journal of Comparative and International Law, Vol. 11, No. 1, pp. 81-88. Cameron, J. and K.R. Gray 2001: Principles of International Law in the WTO Dispute Settlement Body”, in International and Comparative Law Quarterly, Vol. 50, No. 2, pp. 248-298. Canadian Biotechnology Advisory Committee 2002: Patenting of Higher Life Forms and Related Issues: Report to the Government of Canada Biotechnology Ministerial Coordinating Committee, Ottawa, Canada . Carlsen, L. 2001: “Little, Yellow … Different?” in Latin Trade August 2001. Cassese, A 2003: International Criminal Law, Oxford University Press, Oxford and New York. Cassin, R 1960: “L’intégration parmis les droits fondamentaux de l’homme, des droits des créateurs des uvres de l’esprit”, in Plaisant, M. (ed.): Études sur la Propriété Industrielle, Littéraire, Artistique, Sirey, Paris. Cattaneo, O. 2000: “The Interpretation of the TRIPS Agreement – Considerations for the WTO Panel and Appellate Body”, in Journal of World Intellectual Property Vol. 3, No. 5, pp. 627682. Chambers, W.B. and A. Kambu 2004: “Stop exploitation of indigenous knowledge”, in Newsletter of United Nations University, Issue 30. Chapman, A.1996: “A ‘Violations Approach’ for Monitoring the International Covenant on Economic, Social and Cultural Rights”, Human Rights Quarterly, pp. 156-229. __2000: Approaching Intellectual Property as Human Rights: Obligations Related to Article 15(1)(c), Paper presented for the Day of General Discussion on ”The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”, Committee on Economic, Social and Cultural Rights, 27 November 2000 (E/C.12/2000/12). __2002: “The Human Rights Implications of Intellectual Property Protection”, in Journal of International Economic Law, Vol. 5, No. 4, pp. 861-882.
459
460
Literature
Charnovitz, S. 2002a: “The Legal Status of the Doha Declaration”, in Journal of International Economic Law, Vol 5. No. 1, pp. 207-211. __2002b: “The WTO and the Right of the Individual”, in S. Charnovitz (ed.): Trade Law and Global Governance, Cameron May, London, United Kingdom. Chiang, C. 2004: The “Commercial Offer for Sale” Standard after Minnesota Mining v. Chemque, in 2004 Duke Law and Technology Review 0001; see: <www.law.duke.edu/journals/dltr/articles/ 2004dltr0001.html>. Churchill, R. 1996: “Environmental Rights in Existing Human Rights Treaties”, in Boyle, A. and M.R. Anderson (eds.) 1996: Human Rights Approaches to Environmental Protection, Clarendon Press, Oxford and New York. CIEL 2001: Towards a Full Review of the WTO’s TRIPS Agreement under Article 71.1, Centre for International Environmental Law, Geneva. Claude, R.P. 2002: Science in the Service of Human Rights, Philadelphia, University of Pennsylvania Press. Cohen, J.I. and J. Komen 1995: “Research Collaboration, Management and Technology Transfer: Meeting the Needs of Developing Countries”, in D.W. Altman and K. Watanbe (eds): Plant Biotechnology to Developing Countries, San Diego, Academic Press. Cohen, J.I. et al. 1998: Proprietary Biotechnology Inputs and International Agricultural Research, ISNAR Briefing Paper No. 39, The Hague. Cohen, J.I. (ed.) 1999: Managing Acricultural Biotechnology – Addressing Research Program Needs and Policy Implications, Biotechnology in Agriculture Series No. 23, CABI Publishing, Wallingford, Oxon & New York. Cohn, M. 2001: “The World Trade Organization: Elevating Property Interests above Human Rights”, in Georgia Journal of International and Comparative Law, Vol. 29, pp. 427-440. Collins, H.B. and R.W. Krueger 2003: Potential Impact of GURTs on Smallholder Farmers, Indigenous & Local Communities, and Farmers Rights: The Benefits of GURTs, Paper presented at the CBD Ad Hoc Technical Expert Group meeting on the potential impacts of genetic use restriction technologies on smallholder farmers, indigenous and local communities and farmers’ rights, Montreal 19 to 21 February 2003, <www.etcgroup.org> (“Broken Promise? Monsanto Promotes Terminator Seed Technology”, 23 April 2003). Commission on Intellectual Property 2002: Integrating Intellectual Property Rights and Development Policy, UK Department for International Development, London. Coombe, R.J. 1998: “Intellectual Property, Human Rights and Sovreignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and the Conservation of Biodiversity”, in Indiana Journal of Global Legal Studies, Vol. 6, No. 1, pp. 59-115. Cornides, J. 2004: Human Rights and Intellectual Property: Conflict or Convergence?” in Journal of World Intellectual Property, Vol. 7, No. 2, pp. 135-167. Correa, C. 2000a: Intellectual Property Rights, the WTO and Developing Countries: the TRIPS Agreement and Policy Options, Zed Books, New York and Third World Network, Penang, Thailand. __2000b: Options for the Implementation of Farmers’ Rights at the National Level, working paper, South Centre, Geneva. __2001: “Access to Plant Genetic Resources and Intellectual Property Rights”, in P. Drahos and M. Blakeney (eds.): Perspectives on Intellectual Property Vol. 9: “IP in Biodiversity and
Literature
Agriculture”, Sweet and Maxwell, London, in co-operation with Queen Mary Intellectual Property Research Institute, Queen Mary, University of London. __2002a: “Pro-competitive Measures under TRIPS to Promote Technology Diffusion in Developing Countries”, in Drahos, P. and Mayne, R.: Global Intellectual Property Rights: Knowledge, Access and Development, Palgrave MacMillan, Hampshire, UK, and New York, in cooperation with Oxfam. __2002b: “Internationalization of the Patent System and New Technologies”, in Wisconsin International Law Journal, Vol. 20, No. 3, pp. 523-550. __2003: “Managing the Provision of Knowledge: The Design of Intellectual Property Laws”, in I. Kaul et al. (eds): Providing Public Goods: Managing Globalization, Oxford University Press, Oxford and New York. Correa, C. and A.Y. Abdulqawi (eds.) 1998: Intellectual Property and International Trade: The TRIPS Agreement, Kluwer Law International, London, The Hague, Boston. Cortes, J. 1999: “Improving the Regulatory Environment for Agriculture in the Developing World”, in Proceedings from 35th Annual Meeting and Capitol Hill Forum: “Public-Private Cooperation in International Agriculture and Rural Development: Elements of a Vision”, Association for International Agriculture and Rural Development, Washington D.C. 6 - 8 June 1999; see . Cottier, T. 2002: “Trade and Human Rights: A Relationship to Discover”, in Journal of International Economic Law, Vol. 5, No. 1, pp. 111-132. Cottier, T., Pauwelyn J., and Burgi E. (eds.) 2005: Human Rights and International Trade, Oxford University Press, Oxford and New York. Cotter, T. and Panizzon, M. 2004: “Legal Perspectives on Traditional Knowledge: the Case for Intellectual Property Protection”, in Journal of International Economic Law, Vol 7. No. 2, pp. 371-400. Cranston, M. 1967: ”Human Rights: Real and Supposed”, in D.D. Raphael (ed.): Political Theory and the Rights of Man, Macmillan Press, London. Craven, M. 1993: “The Domestic Application of the International Covenant on Economic, Social and Cultural Rights”, in Netherlands International Law Review, Vol 40, pp. 367-404. __1994: “The Right to Culture in the International Covenant on Economic, Social and Cultural Rights”, in R. Fisher (ed.) 1994: Human Rights and Cultural Policies in a Changing Europe, Helsinki University Press. __1995: The International Covenant on Economic, Social and Cultural Rights – A Perspective on its Development, Clarendon Press, Oxford University Press. Crawford, J. 2000: The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, Cambridge, UK. Crawford, J., Bodeau, P. and Peel, J. 2000: “The ILC’s Draft Articles on State Responsibility: Toward Completion of a Second Reading”, in The American Journal of International Law, Vol. 94, No. 4, pp. 660-674. Crespi, S. 1988: Patents: A Basic Guide to Patenting in Biotechnology, Cambridge Studies in Biotechnology 6, Cambridge University Press. __2003: “IPRs Under Siege: First Impressions of the Report of the Commission on Intellectual Property Rights”, in European Intellectual Property Review, Vol. 25, No. 6, pp. 242-247.
461
462
Literature
Crnic-Grotic, V. 1997: “Object and Purpose of Treaties in the Vienna Convention on the Law of Treaties” in K.S. Sik, M.C.W. Pinto and S.P. Subedi (eds.): Asian Yearbook of International Law, Vol. 7, Kluwer Law International, The Hague, London, Boston. Crop Protection Monthly 30 July 2002 – Issue No. 152. Crucible Group 1994: People, Plants and Patents, International Development Resource Center, Ottawa, Canada; Dag Hammarskjold Foundation, Stockholm, Sverige; International Plant Genetic Resource Centre, Rome, Italy. __2001a: Seeding Solutions, Vol I, International Development Resource Center, Ottawa, Canada; Dag Hammarskjold Foundation, Stockholm, Sverige; International Plant Genetic Resource Centre, Rome, Italy. __2001b: Seeding Solutions, Vol II, International Development Resource Center, Ottawa, Canada; Dag Hammarskjold Foundation, Stockholm, Sverige; International Plant Genetic Resource Centre, Rome, Italy. Cullet, P. 1999: “Revision of the TRIPS Agreement concerning the Protection of Plant Varieties – Lessons from India concerning the Development of a sui generis system”, in Journal of World Intellectual Property, Vol. 2, No. 4, pp. 617-656. __ 2001: “Property Rights over Biological Resources – Indias Proposed Legislative Framework”, in Journal of World Intellectual Property, Vol. 4, No. 2. pp. 211-230. __2004: “Intellectual Property and Food Security in the South”, in Journal of World Intellectual Property, Vol. 7, No. 3, pp. 261-286. Czaplinski W. and G. Danilenko 1990: “Conflict of Norms in International Law”, in Netherlands Yearbook Law Review, Vol. 21, pp. 3-42. Dalrymple, D.G. and J.P. Srivastava 1994: “Transfer of Plant Cultivars: Seeds, Sectors and Society”, in J.R Anderson (ed.): Agricultural Technology: Policy Issues for the International Community, CABI, Wallingford, Oxon, UK, in association with the World Bank. Davey, W.J. 2003: “Has the WTO Dispute Settlement System Exceeded its Authority? A Consideration of Deference Shown by the System to Member Governments Decisions and Its Use of Issue-Avoidance Techniques”, in T. Cottier and P. Mavroidis (eds.): The Role of the Judge in International Trade Regulation: Experience and Lessons for the WTO, University of Michigan Press, Ann Arbor. Davey W. J. and W. Zdouc 2003: “The Triangle of TRIPs, GATT and GATS”, in T. Cottier and P.C. Mavroidis (eds.): Intellectual Property: Trade, Competition and Sustainable Development, pp. 53-84, University of Michigan Press, Ann Arbor. deBeer, J. 2005: “Reconciling Property Rights in Plants”, in Journal of World Intellectual Property, Vol. 8, No. 1, pp. 5-31. de Feyter, K. 2001: World Development Law: Sharing Responsibility for Development, Intersentia, Antwerpen, Groningen, Oxford. de Feyter. K. and F. Gomez Isa (eds.) 2005: Privatisation and Human Rights; in the Age of Globalisation, Intersentia, Antwerpen, Groningen, Oxford. de Hoogh, A.J.J. 1991: “The Relationship between Jus Cogens, Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective”, in Austrian Journal of Public and International Law, Vol. 42, pp. 183-214. __1996: Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States, The Kluwer Law Books, The Hague.
Literature
Dieng, A. 1999: “Introductory Remarks”, in Intellectual Property and Human Rights, WIPO Publication 762(E), World Intellectual Property Organisation, Geneva. Dominicé, C. 1999: “The International Responsibility of States for Breach of Multilateral Obligations”, in European Journal of International Law, Vol. 10, No. 2, pp. 353-364. Dommen, C. 2002: “Raising Human Rights Concerns in the World Trade Organization: Actors, Processes and Possible Strategies”, in Human Rights Quarterly, Vol. 24. No. 1, pp. 1-50. Dowell-Jones, M. 2004: Contextualising the International Covenant on Economic, Social and Cultural Rights: Assessing the Economic Deficit, International Studies in Human Rights Vol. 80, Martinus Nijhoff Publishers, Leiden, Boston. Downes, D.R. 2000: “How Intellectual Property Could Be a Tool to Protect Traditional Knowledge”, in Columbia Journal on Environmental Law, Vol. 25, pp 253-282. Drahos, P. 1996: A Philosophy of Intellectual Property, Ashgate, Darmouth. __1998: “The Origins of Intellectual Property Rights: Origins and Developments”, in Intellectual Property and Human Rights, WIPO Publication 762(E), World Intellectual Property Organisation, Geneva. __1999: “Intellectual Property and Human Rights”, in Intellectual Property Quarterly No. 3, pp. 349-371. __2001: “The TRIPS Reviews and the CBD: A Dress Rehearsal?”, in P. Drahos and M. Blakeney (eds.): Perspectives on Intellectual Property, Vol. 9: “IP in Biodiversity and Agriculture”. Drahos, P. and R. Mayne (eds.) 2002: Global Intellectual Property Rights, Macmillan, Basingstoke, UK. Dréze, J. and A. Sen 1989: Hunger and Public Action, Clarendon Press, Oxford University Press, Oxford and New York. Dutfield G. 2001a: The International Biotrade, Conservation and Intellectual Property Rights, PhD Dissertation, The Environmental Change Institute, School of Geography and the Environment, University of Oxford. __2001b: “Indigenous Peoples, Bioprospecting and the TRIPS Agreement”, in P. Drahos and M. Blakeney (eds.): Perspectives on Intellectual Property Vol. 9: “IP in Biodiversity and Agriculture”, Sweet and Maxwell, London, in cooperation with Queen Mary Intellectual Property Research Institute, Queen Mary, University of London. __2001c: “TRIPS-Related Aspects of Traditional Knowledge”, in Case Western Reserve Journal of International Law, Vol. 33, No. 2. pp. 233-275. __2002: “Sharing the Benefits of Biodiversity: Is there a Role for the Patent System?” in Journal of World Intellectual Property, Vol. 5, No. 6. pp. 899-931. __2003a: “Introduction”, in Bellmann, C., G. Dufield and R. Meléndez-Ortiz (eds.): Trading in Knoweldge: Development Perspectives on TRIPS, Trade and Sustainability, Earthscan, London. __2003b: Intellectual Property Rights and the Life Science Industries: A 20th Century History, Ashgate Publishing, Aldershot, Hampshire, UK. Economist 14th to 20th September 2002. Economist 13th to 19th November 2004. Edwardson, S. 2003: Conflict of Compromise: Do the TRIPS Plant Variety Protection Requirements Conflict or Coincide with the Right to Food?, unpublished thesis, on file with the author.
463
464
Literature
Eide, A. 1987: Report on the right to adequate food as a human right, E/CN.4/Sub.2/1987/23 (Issued in Human Rights Study Series No. 1, United Nations publications Sales No. E.89.XIV.2: Right to adequate food as a human right). __1992: “Article 25”, in A. Eide, et al. (eds.): The Universal Declaration of Human Rights: A Commentary, Scandinavian University Press, Oslo. __1999: The right to adequate food and to be free from hunger: Updated Study on the Right to food by Mr. Asbjorn Eide, E/CN.4/Sub.2/1999/12. __2001: “Cultural Rights as Individual Human Rights”; in A. Eide, C. Krause and A. Rosas. (eds.): Economic, Social and Cultural Rights – A Textbook (2nd Revised Edition), Martinus Nijhoff Publishers, Dordrecht, Boston, London. Eide, A. and W.B. Eide 1999: “Article 25”, in G. Alfredsson and A. Eide (eds.): The Universal Declaration of Human Rights – A Common Standard of Achievement, Martinus Nijhoff Publishers, The Hague, Boston, London. Eide, A., C. Krause and A. Rosas. (eds.) 2001: Economic, Social and Cultural Rights – A Textbook (2nd Revised Edition), Martinus Nijhoff Publishers, Dordrecht, Boston, London. Ekpere, J.A. 2000: TRIPs, Biodiversity and Traditional Knowledge: OAU Model Law on Community Rights and Access to Genetic Resources, paper presented at ICTSD Multi-Stakeholder Dialogue on Trade, Enviroment and Sustainable Development, Libreville, Gabon 13 - 14 July 2000; see <www.ictsd.org/dlogue/2000-07-13/ekpere.pdf>. __2002: ‘Sui generis’ Systems: the Case of the “OAU Model Law on the Protection of the Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resources”, Paper presented at the “International Seminar on Systems for the Protection of Traditional Knowledge”. New Delhi, India, April 3-5, 2002; see . Elias, T.O. 1980: “The Doctrine of Inter-temporal Law”, in American Journal of International Law, Vol. 74, Issue 2, pp. 285-307. Escudero, S. 2001: International Protection of Geographical Indications and Developing Countries, South Centre, Geneva. Esquinas Alcazar, J. 1996: “The Realisation of Farmers Rights”, in Agrobiodiversity and Farmers’ Rights, Swaminathan Research Foundation, No. 14, Madras. ETC Group (www.etcgroup.org): Proctor’s Gamble, Press release 17 December 2001 __Who calls the shots at UPOV? Press release 17 April 2003 __Broken Promise? Monsanto Promotes Terminator Seed Technology, Press release 23 April 2003. __Contamination by genetically modified maize in Mexico much worse than feared, Press release issued from Mexico City 9 October 2003. __Canadian Government to Unleash Terminator Bombshell at UN Meeting: All-out push for commercialisation of Sterile Seed Technology, Press release 7 February 2005. __What happened to the Enola Bean Patent Challenge? Press release 21 December 2005. Ethier, W.J. 2004: “Intellectual Property Rights and Dispute Settlement in the World Trade Organization” in Journal of International Economic Law, Vol. 7, No. 2, pp. 449-458. European Environmental Agency of the European Communities (in cooperation with the European Science Foundation) 2002: Genetically modified organisms (GMOs): The significance of gene flow through pollen transfer, Environmental issue report No. 28, Copenhagen, Denmark.
Literature
Evans, G.E. 2000: “A Preliminary Excursion into TRIPS and Non-Violations Complants”, in Journal of World Intellectual Property Vol. 3, No. 6, pp. 867-888. Evenson, R.E. 2002: “Production Impacts of Crop Genetic Improvement”, in R.E. Evenson, V. Santaniello and D. Zilberman (eds.): Economic and Social Issues in Agricultural Biotechnology, CABI Publishing, Wallingford, Oxon, UK. __2003: “Production Impacts of of Crop Genetic Improvement”, in R. E. Evenson and D. Gollin (eds.): Crop Variety Improvement and its Effect on Productivity: The Impact of International Agricultural Research, CABI Publishing, Wallingford, Oxon, UK. Evenson, R.E. and M. Rosengrant 2003: “The Economic Consequences of Crop Genetic Improvement Programmes”, in R.E. Evenson and D. Gollin (eds.): Crop Variety Improvement and its Effect on Productivity: The Impact of International Agricultural Research, CABI Publishing, Wallingford, Oxon, UK. Eyzaguirre, P. and M. Iwanaga 1996: Participatory Plant Breeding: Proceedings of a workshop on participatory plant breeding, 26-29 July 1995, Wageningen, The Netherlands, International Plant Genetic Resources Institute, Rome. Falcon, W.P. and Fowler, C. 2002: “Carving up the commons – emergence of a new international regime for germplasm development and transfer” in Food Policy Vol. 27, pp. 197-222. Fauchald, O. K. 1996: Environmental Taxes and Trade Discrimination: A Legal Analysis of Rules Concerning National Treatment, Most-Favoured Nation, General Exceptions and Nullification or Impairment in GATT 1994, Phd. Thesis, Faculty of Law, University of Oslo. __2000: “Patenter og almenningens tragedie”, in Lov og rett, 2001, Vol. 40, No. 7, pp. 399-412. Fitzmaurice, G. 1958: Third report on the law of treaties, in Yearbook of the International Law Commission 1958, Vol II. __1986: The Law and Procedure of the International Court of Justice Vol II, (reprint of articles appearing in British Yearbook of International Law), Grotius Publications, Cambridge, UK. Fowler, C. 1994: Unnatural Selection: Technology, Politics, and Plant Evolution, Gordon and Breach, Yverdon, Switzerland. __2000: “Implementing access and benefit-sharing procedures under the Convention on Biological Diversity: the dilemma of crop genetic resources and their origins”, GFAR Conference 2000, Dresden 21 –23 of May. (GFAR/00/17-04-07) . Fowler, C. and Mooney, P. 1990: Shattering: Food, Politics and the Loss of Genetic Diversity, The University of Arizona Press, Tuscon. Fowler, C., M. Smale and S. Gaiji 2001: “Unequal Exchange? Recent Transfers of Agricultural Resources and their Implications for Developing Countries” in Development Policy Review, Vol. 19, No. 2, pp. 181-204. Fowler, C. et al. 2004: “The Question of Derivatives: Promoting Use and Ensuring Availability of Non-Proprietary Plant Genetic Resources”, in Journal of World Intellectual Property, Vol. 7, No. 5, pp. 641-663. Freeman, L. 1995: “Reflections on Emerging Frameworks of Health and Human Rights” in Health and Human Rights, Vol 1. No. 4, pp. 314-349. Fried, C. 1978: Right and Wrong, Harvard University Press, Cambridge, Mass. Friis-Hansen, E. and Sthapit, B. (eds.) 2000: Participatory Approaches to the Conservation and Use of Plant Genetic Resources, International Plant Genetic Resources Institute, Rome.
465
466
Literature
Frowein, J.A. 1995: “Reactions by Not Directly Affected States”, Recueil des cours, 1994 IV, Vol. 248, Hague Academy of International Law and Martinus Nijhoff Publishers, The Hague, Boston, London. Gaja, G. 1989: “Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of three Related Concepts”, in Weiler, J.H.H., A. Cassese and M. Spinedi (eds.): International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility, Walter de Gruyter, Berlin and New York. Gana, R. 1996: “The Myth of Development, the Progress of Rights: Human Rights to Intellectual Property and Development”, in Law and Policy, Vol 18, No. 3-4, pp. 315-354. Gervais, D. 2002: “The Internationalization of Intellectual Property: New Challenges from the Very Old and the Very New”, in Fordham Intellectual Property Media and Environmental Law Journal, Vol. 12, pp. 929-990. __2003a: The TRIPS Agreement: Drafting History and Analysis, 2nd Edition, Sweet&Maxwell, London. __2003b: “TRIPS, Doha and Traditional Knowledge”, in The Journal of World Intellectual Property, Vol. 6, No. 3, pp. 403-419. Gewirth, A. 1982: Human Rights: Essays on Justifications and Applications, University of Chicago Press, Chicago and London. __1996: The Community of Rights, University of Chicago Press, Chicago and London. Girsberger, M.A. 1998: “The Protection of Traditional Plant Genetic Resources for Food and Agriculture and Related Know-How by Intellectual Property Rights in International Law – The Current Legal Environment”, in Journal of World Intellectual Property, Vol. 1, No. 6, pp. 1017-1078. Goeschl, T. and T. Swanson 2000: “Genetic Use Restriction Technologies and the Diffusion of Yield Gains to Developing Countries”, in Journal of International Development Vol. 12, No. 8, 1159-1178. __2002: “The Diffusion of Benefits from Biotechnological Developments: The Impact of Use Restriction on the Distribution of Benefits”, in Swanson, T. (ed.): The Economics of Managing Biotechnologies, Kluwer Academic Publishers, Dordrecht, The Netherlands. Gopalakrishnan, N.S. 2001: “An ‘Effective’ Sui Generis Law to Protect Plant Varieties and Farmers’ Rights in India – A Critique”, in The Journal of World Intellectual Property, Vol. 4, No. 1, pp. 157-172. Governments of the United States and the United Kingdom 1995: “Observations on General Comment No. 24 relating to reservations”, Human Rights Law Journal, Vol. 16, No. 10-12, pp. 422-426. GRAIN 2001: Intellectual Property Rights: Ultimate control of agricultural R&D in Asia, Genetic Resource Action International, Barcelona. Greaves, T. (ed.) 1994: Intellectual Property Rights of Indigenous Peoples: A Sourcebook, Society for Applied Anthropology, Oklahoma. Green, M. 2000: Draft history of the Article 15 (1) (c) of the International Covenant of Economic, Social and Cultural Rights, Paper presented for the Day of General Discussion on ”The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”, Committee on Economic, Social and Cultural Rights, 27 November 2000 (E/C.12/2000/15).
Literature
Greengrass, B. 1994: “The 1991 Act of the UPOV Convention”, in Seminar on the Nature of and Rationale for the Protection of Plant Varieties under the UPOV Convention, UPOV Publication No. 730(E), pp. 55-65, UPOV, Geneva. __1996: “UPOV and Farmers Rights”, in Agrobiodiversity and Farmers’ Rights, Swaminathan Research Foundation, No. 14, Madras. Gregg Bloche, M. 2002: “WTO Deference to National Health Policy: Towards an Interpretive Principle”, in Journal of International Economic Law, Vol. 5, No. 4, pp. 825-848. Halewood, M. 1997: “Regulating patent holders, local working requirements and compulsory licensing at international law”, in Osborne Hall law Journal Vol. 35, No. 2, pp. 243-287. Hamilton, N.D. 1993: “Who owns Dinner: Evolving Legal Mechanisms for Ownership of Plant Genetic Resources”, in Tulsa Law Journal, Vol. 28, No. 4, pp. 587-657. Hancock, J. 2003: Environmental Human Rights: Power, ethics and law. Ashgate Publishing, Aldershot, UK. Hardin, G. 1968: “The tragedy of the commons”, in Science No. 162, p. 1243-1248. Hassemer, M. 2004: “Genetic Resources”, in von Levinsky, S. (ed.): Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore, pp. 151-220, Kluwer Law International, The Hague, London, New York. Hazel, P. B. R and C. Ramasamy (eds.) 1991: The Green Revolution Reconsidered, John Hopkins University Press, Baltimore and London, in cooperation with IFPRI. Hazel, P.B.R and L. Haddad 2001: Agricultural Research and Poverty Reduction: Food, Agriculture and the Environment, Discussion Paper No. 34, International Food Policy Research Institute, Washington D.C. Helfer, L.R. 2002: Intellectual Property Rights in Plant Varieties: An Overview with Options for National Governments, FAO Legal Papers Online #31, Rome, Italy. __2004: “Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking”, in Yale Journal of International Law, Vol. 29, No. 1. pp. 1-83. Hettinger, E.C. 1989: “Justifying Intellectual Property”, in Philosophy and Public Affairs, Vol. 18, No. 1, pp. 31-52. Howse, R. 2000: “The Canadian Generic Medicines Panel – A Dangerous Precedent in Dangerous Times”, in Journal of World Intellectual Property, Vol. 3, No. 4, pp. 493-508. __2002: “Human Rights in the WTO: Whose Rights, What Humanity? Comment on Petersmann”, European Journal of International Law, Vol. 13, No. 3, pp. 651-659. Hughes, J. 1998: “The Philosophy of Intellectual Property”, in Georgetown Law Journal, Vol. 77, pp. 287-366. Hutchinson, D.N. 1988: “Solidarity and Breaches of Multilateral Treaties”, in The British Yearbook of International Law, Vol 59, Oxford University Press, Oxford, pp. 151-215. ICTSD (International Centre for Trade and Sustainable Development) /UNCTAD (UN Conference on Trade and Development) 2003: Intellectual Property Rights: Implications for Development: Policy Discussion Paper, ICTSD and UNCTAD, Geneva. Idris, K. 2004: Intellectual Property: A Power Tool for Economic Growth, WIPO Publication 888, Woorld Intellectual Property Organization, Geneva. IFAD (International Fund for Agricultural Development) 2001: Rural Poverty Report 2001: The Challenge of Ending Poverty, Oxford University Press, Oxford and New York.
467
468
Literature
Inouye, K. 2004: Monsanto: Behind the Scenes – A corporate profile, Polaris Institute, Ottawa, <www. polarisinstitute.org/polaris_project/bio_justice/ corp_biotech/monsanto_profile.pdf> International Law Commission 1999: The International Law Commission 1949-1998, Volume Two: The Treaties, Part II, Oxford University Press, Oxford and New York. ISAAA 2001: Global Review of Commercialized Transgenic Crops, ISAAA Brief No. 24, Manila, The Philippines; at <www.isaaa.org>. Isaac, G.E. and W.A. Kerr 2004: “Bioprospecting or Biopiracy? Intellectual Property and Traditional Knowledge in Biotechnology Innovation”, in Journal of World Intellectual Property, Vol. 7, No. 1, pp. 35-52. Jackson, J. 1997: The World Trading System: Law and Politics of International Economic Relations, MIT Press, Cambridge, Massachusetts. Jackson, L.A. 2000: “Agricultural Biotechnology and the Privatization of Genetic Information – Implications for Innovations and Equity”, in Journal of World Intellectual Property, Vol. 3, No. 6, pp. 825-848. Jacobs, L.A. 1993: Rights and Deprivation, Clarendon Press, Oxford. Jacoby, C.D. and C. Weiss 1997: Recognizing Property Rights in Traditional Biocultural Contribution”, in Stanford Environmental Law Journal, Vol. 16, pp. 74-124. Jenks, W. 1954: “The Conflict of Law-Making Treaties”, in British Yearbook of International Law 1953, Oxford University Press, London, New York, Toronto, pp. 401-453. Jennings, R. 1991: “Treaties”, in M. Bedjaoui (ed.): International Law: Achievements and Prospects, Volume 1, UNESCO, Paris and Martinus Nijhoff Publishers, Dordrecht, Boston, London. Jennings, R. and Watts, A. 1992: Oppenheim’s International Law (9th edition), Longman, London and New York. Johnson, I. 2003: Chairman’s Opening Address at the CGIAR annual meeting 2003, held 29 October 2003; see . Jördens, R. 2003: Plant Biotechnology Developments in the International Framework, paper presented at the WIPO-UPOV Symposium on Intellectual Property Rights in Plant Biotechnology, 24 October 2003, WIPO-UPOV/SYM/03/1. Karl, W. 1992: ”Treaties, Conflicts between”, in R. Bernhardt (ed.): Encyclopedia of Public International Law Volume 7, Elsevier Science Publisher, Amsterdam, New York, Oxford. Kaul, I., I. Grunberg and M.E. Stern (eds.) 1999: Global Public Goods: International Cooperation in the 21st Century, Oxford University Press, Oxford and New York. Kaul, I. et al. (eds.) 2003: Providing Global Public Goods: Managing Globalization, Oxford University Press, Oxford and New York. Keeley, J. and I. Scoones 2003: Seeds in a globalised world: agricultural biotechnology in Zimbabwe”, IDS Working Paper 189 (Biotechnology Policy Series No. 8), Institute for Development Studies, Brighton, UK. Kelly, C.R. 2001: “The Value Vacuum: Self-Enforcing Regimes and the Dilution of the Normative Feedback Loop”, in Michigan Journal of International Law, Vol. 22, pp. 673-734. Kelsen, H. 1991: General Theory of Norms, Clarendon Press, Oxford. Kerr, J. and S. Kolavalli 1999: Impacts of Agricultural Research on Poverty Alleviation: Conceptual Framework with Illustrations from the Literature, Environment and Production Technology Division Paper No. 56, International Food Policy Research Institute, Washington D.C.
Literature
Kinsella, N. S. 2001: “Against Intellectual Property”, in Journal of Libertarian Studies, Vol. 15, No. 2, pp. 1-53. Kirby, M. 1999: “The Right to Health Fifty Years on: Still Skeptical?” in Health and Human Rights, Vol. 4, No. 1, pp. 6-25. Kirchner. S. 2004: “Relative Normativity and the Constitutional Dimension of International Law: A Place for Values in the International Legal System?”, in German Law Journal, Vol. 5, No. 1. pp 47-64. Kloppenburg, J.R 1988: First the Seed: The Politcial Economy of Plant Biotechnology 1492-2000, Cambridge University Press, Cambridge and New York. Kloppenburg, J.R and D. L. Kleinmann 1988: ”The Genetic Resources Controversy”, in N. Kumar (ed): Biotechnology Revolution and the Third World: Challenges and Policy Options, Research and Information Systems for the Non-Aligned and Other Developing Countries, New Dehli, India. Knox, J. H. 2004: “The Judicial Resolution of Conflicts Between Trade and the Environment”, in Harvard Environmental Law Review, Vol. 28, No. 1, pp. 1-78. Koch, C.H. 1992: “John Lockes politiske filosofi”, in N. Juul Foss og P. Kurrild–Klitgaard (ed.): Etik, Marked og Stat: Liberalismen fra Locke til Nozick, Handelshøjskolens Forlag, København. Koch, I.E. 2003: “The Justiciability of Indivisible Rights”, in Nordic Journal of International Law, Vol. 71, No. 1, pp. 3-39. Koo, B, C. Nottenburg and P.G. Pardey 2004a: ”Intellectual Property: Enhanced: An International Appraisal”, in Science, Vol. 306, Issue 5700, pp. 1295-1297. Koo, B, P.G. Pardey and B.D. Wright 2004b: “The Economics of Genebank Costing”, in B. Koo, P.G. Pardey and B.D. Wright (eds.): Saving Seeds: The Economics of Conserving Crop Genetic Resources Ex Situ in the Future Harvest Centres of the CGIAR, CABI Publishing, Wallingford, UK. Koskenniemi, M. 2003: Fragmentation of International Law: Topic (a): The function and scope of the lex specialis rule and the question of ‘self-contained regimes’: An outline, paper to the ILC’s Study Group on Fragmentation <www.un.org/law/ilc/sessions/55/fragmentation_outline. pdf>. Krattiger, A. F. et al. (eds.) 1994: Widening Perspectives on Biodiversity, IUCN- World Conservation Union, Geneva. Krattiger, A.F., M. Qaim. and J. von Braun 2000: “Conclusions”, in M. Qaim, A.F. Krattiger and J. von Braun (eds.): Agricultural Biotechnology in Developing Countries: Towards Optimizing Benefits for the Poor, Kluwer Academic Publishers, Dordrecht, Boston, London. Ksentini, F.Z. 1994: Review of Further Developments in Fields with which the Sub-Commission has been Concerned: Human Rights and the Environment, E/CN.4/Sub.2/1994/9. Künnemann, R. 1998: “Violations of the Right to Food”, in T. van Boven, C. Flinterman and I. Westendorp (eds.): The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, SIM Special No. 20, Netherlands Institute for Human Rights, Utrecht, Netherlands. __2002: “The Right to Adequate Food: Violations Related to its Minimum Core Content”, in A. Chapman and S. Russell (eds.): Core Obligations: Building a Framework for Economic, Social and Cultural Rights, Intersentia, Antwerpen, Oxford, New York. Kuyek, D. 2002: Intellectual Property Rights in African Agriculture: Implications for Small Farmers, GRAIN (Genetic Resource Action International), Barcelona.
469
470
Literature
Kutoba, Y. 1990: “The Institutional Response”, in Weeramantry, C.G. (ed.) 1990: Human Rights and Scientific and Technological Development, United Nations University Press, Tokyo. Ladas, S.P. 1975: Patents, Trademarks, and Related Rights, National and International Protection, Vol. 1, Harvard University Press, Cambridge, Massachusets. Laird, S.A. (ed.) 2002: Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice, Earthscan Publ., London, UK, and Sterling Virginia, USA. Lamy, P. 2004: “Trade-Related Aspects of Intellectual Property Rights – Ten Years Later”, in Journal of World Trade, Vol. 38, No. 6, pp. 923-934. Lang, A. 2004: “The GATS and Regulatory Autonomy: A Case Study of Social Regulation of the Water Industry”, in Journal of International Economic Law, Vol. 7, No. 4, pp. 801-838. Le Buanec, B. 2003: “The management of intellectual property rights in plant biotechnology”, WIPO-UPOV/SYM/03/11, paper presented at WIPO-UPOV Symposium on intellectual property rights in plant biotechnology, 24 October 2003. Leckie, S. 1998: “Another Step Towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights”, in Human Rights Quarterly,Vol. 20, No. 1, pp. 81-124. Leistner, M. 2004: “Traditional Knowledge”, in S. von Levinsky (ed.): Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore, Kluwer Law International, The Hague, London, New York. Lele, U., W. Lesser & G. Horstkotte-Wesseler (eds) 2000: Intellectual Property Rights in Agriculture: The World Bank´s Role in Assisting Borrower and Member Countries, Rural Development Departure, World Bank, Washington D.C.. Lemley, M.A. 2004: “Ex Ante versus Ex Post Justifications for Intellectual Property”, in The University of Chicago Law Review, Vol. 71, No. 1, pp. 129-149. Lerner, W. 1995: “Patenting in the Shadow of Competitors”, in The Journal of Law & Economics, Vol. 38, No. 2, pp. 463-495. Leskien, D. and Flitner, M. 1997: Intellectual Property Rights and Plant Genetic Resources: Options for a Sui Generis System. Issues in Genetic Resources No. 6, International Plant Genetic Resource Institute (IPGRI). Lesser, W. et al., 2000: “Intellectual Property Rights, Agriculture and the World Bank”; in U. Lele, W. Lesser & G. Horstkotte-Wesseler (eds): Intellectual Property Rights in Agriculture: The World Bank´s Role in Assisting Borrower and Member Countries, Rural Development Departure, World Bank, Washington. Lesser, W. 2001: The Effect of TRIPS-Mandated Intellectual Property Rights on Economic Activities in Developing Countries, Study prepared under WIPO Special Service Agreement; see: <www. wipo.int/about-ip/en/studies/pdf/ssa_lesser_trips.pdf>. __2003: Review of Biotechnology, Genetic Resource and Intellectual Property Programs, Thematic Working Paper for the World Bank Operations Evaluation Department’s ‘The CGIAR at 31: A Meta-Evaluationof the Consultative Group on International Agricultural Research’, World Bank, Washington D.C. Liebenberg, S. 2001: “The Protection of Economic and Social Rights in Domestic Legal Systems”, in A. Eide, C. Krause and A. Rosas (eds.) 2001: Economic, Social and Cultural Rights – A Textbook (2nd Revised Edition), Martinus Nijhoff Publishers, Dordrecht, Boston, London. Lim, H. 2001: “Trade and Human Rights: What’s at Issue?”, in Journal of World Trade, Vol. 35, No. 2, pp. 275-301. (Also published as paper for the International Consultation ”Economic, Social
Literature
and Cultural Rights in the Development Activities of International Institutions”, 7th of May 2001 (UN Document E/C.12/2001/WP.2)). Linderfalk, U. 2003: “On the Meaning of the ‘Object and Purpose’ Criterion in the Context of the Vienna Convention on the Law of Treaties, Article 19”, in Nordic Journal of International Law, Vol. 72, No. 4, pp. 429-448. Lipton, M., with R. Longhurst 1989: New Seeds and Poor People, Unwin Hyman, London, UK. Lipton, M. 1999: Reviving Global Poverty Reduction: What role for Genetically Modified Plants?, 1999 Sir John Crawford Memorial Lecture, CGIAR Secretariat, Washington D.C. __2001: “Reviving Global Poverty Reduction: What Role for Genetically Modified Plants?”, in Journal of International Development, Vol. 13, No. 8, pp. 823-846. Llewelyn, M. 1995: “Article 53 Revisited”, in European Intellectual Property Review, Vol. 17, No. 10, pp. 506-511. __2004: “From GATT to G.A.T.T.: Fifty Years of European Bio-IP, Part II”, in Bio-Science Law Review Vol. 6, No. 4, pp. 142-162. __2005: “Schrodinger’s Cat: An Observation on Modern Patent Law”, in Drahos, P. (ed.): Death of Patents, 11 Perspectives on Intellectual Property Law and Policy, Lawtext Publishing, Oxon, UK, in cooperation with Queen Mary Intellectual Property Institute, University of London. Locke, J. 1690: Two treatises of government (1947 Print), Hafner Press, New York. Louwaars, N.P. 2000: “Seed Regulations and Local Seed Systems”, in Biotechnology and Development Monitor, No. 42, p. 12-14 Louwaars, N.P. et al. 2005: Impacts of Strengthened Intellectual Property Rights Regimes on the Plant Breeding Industry in Developing Countries, The Centre for Genetic Resources, Wageningen, The Netherlands. Lundström, A. 2003: Ursprungsfolkens rätt til föda: Om rätten til tillfredsställande föda och rätten att livnära sig, meddelande från Ekonomisk-statsvetskapliga fakulteten vid Åbo Akedemi, Serie A:536, Åbo, Finland. Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 1998, reprinted in Human Rights Quarterly Vol. 20, No. 4, pp. 691-705, and in Annex 4 of A. Eide, C. Krause and A. Rosas (eds.) 2001: Economic, Social and Cultural Rights – A Textbook (2nd Revised Edition), Martinus Nijhoff Publishers, Dordrecht, Boston, London. Machlup, F. and E. Penrose 1950: “The Patent Controversy of the Nineteenth Century”, in Journal of Economic History, Vol. 10, No. 1, pp. 1-29. Mackenzie, R. 2003: “The International Regulation of Modern Biotechnology”, in Yearbook of International Environmental Law Volume 13 2002, Oxford University Press, Oxford and New York. Marceau, G. 1999: “A Call for Coherence in International Law – Praises for the Prohibition Against “Clinical Isolation in WTO Dispute Settlement”, in Journal of World Trade, Vol. 33, No. 5, pp. 87-152 __2001a: “Conflicts of Norms and Conflicts of Jurisdictions – The Relationship between the WTO and MEAs and other Treaties”, in Journal of World Trade, Vol. 35, No. 6, pp. 1081-1133. __2001b: The WTO Settlement and Human Rights, paper presented at joint meeting of American Society of International Law and the World Trade Forum on ‘International Economic Law and Human Rights’, Bern Switzerland, 13-14 August 2001 (on file with author in a version made ready for publishing).
471
472
Literature
__2002: “WTO Dispute Settlement and Human Rights”, in European Journal of International Law, Vol. 13, No. 4, pp. 753-814. Marcus, D. 2003: “Famine Crimes in International Law” in American Journal of International Law, Vol. 97, No. 2, pp. 245-281. Markiewicz K.R. and A. DiMinin 2004: Commercializing the Laboratory: The Relationship Between Faculty Patenting and Publishing, . Marks, S. 2003: “Defining cultural rights”, in M. Bergsmo (ed.): Human Rights and Criminal Justice for the Downtrodden. Essays in honour of Asbjørn Eide, Martinus Nijhoff Publishers, Leiden, Boston. Martineau, B. 2001: First Fruit: The Creation of the Flavr Savr Tomato and the Birth of Biotech Foods, McGraw-Hill Contemporary Books, New York. Maskus, K. 2000: Intellectual Property Rights in the Global Economy, Institute for International Economics, Washington D.C. __2001: “Intellectual Property: Balancing Incentives with Competitive Access”, in Global Economic Prospects 2002, World Bank, Washington D.C. Maskus, K. and J.H. Reichman 2004: “The Globalization of Private Knowledge Goods and the Privatization of Global Public Goods”, in Journal of International Economic Law, Vol. 7. No. 2, pp. 279-320. Matsushita M., T. Schoenbaum and P.C. Mavroidis 2003: The World Trade Organization: Law Practice and Policy, Oxford University Press, Oxford. Matsushita, M. 2003: “Some Issues of the SPS Agreement”, in T. Cottier and P. Mavroidis (eds.): The Role of the Judge in International Trade Regulation: Experience and Lessons for the WTO, University of Michigan Press, Ann Arbor, 2003, pp. 193-212. __2004: “Governance of International Trade under WTO Agreements – Relationships between WTO Agreements and Other Trade Agreements”, in Journal of World Trade, Vol. 38, No. 2, pp. 183-210. Matthews, D. 2002: Globalising Intellectual Property Rights: The TRIPS Agreement, Routledge, London and New York. May, Christopher 2000: A Global Political Economy of Intellectual Property Rights – The new enclosures?, Routledge, London and New York. Mazzoleni, R. and R. Nelson 1998: ”The benefits and costs of strong patent protection: a contribution to the current debate”, in Research Policy Vol. 27, pp. 273-284. McCorquodale, R. 1994: “Self-determination: A Human Rights Approach”, in International and Comparative Law Quarterly, Vol. 43, pp. 857-885. McDougal, M., H. Lasswell and J. Miller 1967: The Interpretation of International Agreements and World Public Order: Principles of Content and Procedure, Yale University Press, New Haven. McManis, C.R. 1998: “The Interface Between International Intellectual Property and Environmental Protection: Biodiversity and Biotechnology”, in Washington University Law Quarterly, Vol. 76, No. 1, pp. 255-279. Mechlem, K. 2004: “Food Security and the Right to Food in the Discourse of the United Nations”, in European Law Journal, Vol. 10, No. 5, pp. 631-648. Medaglia, J.C. 2003: “The Central American Regional Protocol on Access to Genetic and Biochemical Resources”, in C. Bellmann, G. Dufield and R.Meléndez-Ortiz (eds.): Trading
Literature
in Knoweldge: Development Perspectives on TRIPS, Trade and Sustainability, Earthscan, London. Meinzen-Dick, R. et al. 2003: Impacts of Agricultural Research on Poverty: Findings of an Integrated Economic and Social Analysis, Environment and Production Technology Division Paper No. 111, International Food Policy Research Institute, Washington D.C. Meron, T. 1986: “On a Hierarchy of International Human Rights”, in American Journal of International Law, Vol. 80, No. 1, pp. 1-23. __1998: “The continuing Role of Custom in the Formation of International Humanitarian Law”, in Meron, T.: War Crimes Law Comes of Age, Clarendon Press, Oxford and New York. Meyer-Bisch, P. 2000: Protection of cultural property: an individual and collective right, Paper presented for the Day of General Discussion on ”The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”, Committee on Economic, Social and Cultural Rights, 27 November 2000 (E/C.12/2000/16). Midtbø, K. 2004: Kravet om oppfinnelseshøyde for bioteknologiske oppfinnelser. Analyse av spillerommet for restriktiv praksis etter gjennomføring av direktiv 98/44 i norsk rett. Studentavhandling, kandidatnummer 563, Det juridiske fakultet, Universitetet i Oslo. Mill, J.S. 1848: Principles of Political Economy, quoted version: 1998: Principles of Political Economy, A Selected Edition, With Chapters on Socialism, Oxford’s World’s Classic, 2nd Edition, Oxford University Press, Oxford. Millennium Campaign 2005: Halving hunger: it can be done, Task Force on Hunger; see: <www. unmillenniumproject.org/reports/reports2.htm#01>. Millennium Ecosystem Assessment 2005: Millennium Ecosystem Assessment Synthesis Report; see: <www.millenniumassessment.org//en/Products.Synthesis.aspx>. Minderhoud-Jones, M. 2003: “Linking Focal Points in Biotechnology”, in Biotechnology and Development Monitor, No. 50, pp. 24-26. Morris, M.L. and M.R. Bellon 2004: “Participatory plant breeding research: Opportunities and challenges for the international crop improvement movement”, in Euphytica, Vol. 136, No. 1, pp 21-35. Morris, M.L. and B. Ekasingh 2002: “Plant Breeding Research in Developing Countries”, in D. Byerlee and R. G. Echeverría (eds.): Agricultural Research Policy in an Era of Privatization, CABI Publishing, Wallingford, Oxon, UK and New York. Moufang, R. 1998: “The concept of ordre public and morality in patent law” in G. van Overwalle (ed.): Patent Law, Ethics and Biotechnology, Bruylant, Brussel. __2003: The Interface between Patents and Plant Variety Rights in Europe, paper presented at the WIPO-UPOV Symposium on Intellectual Property Rights in Plant Biotechnology, 24 October 2003, WIPO-UPOV/SYM/03/6. Mower, A.G. 1985: International Cooperation for Social Justice: Global and Regional Protection of Economic/Social Rights, Greenwood Press, Westport, Connecticut and London, England. Mugabe, J. 1999: “Intellectual Property Protection and Traditional Knowledge”, in Intellectual Property and Human Rights, WIPO Publication 762(E), World Intellectual Property Organisation, Geneva. Murphy, S.D. 2001: “Biotechnology and International Law”, in Harvard International Law Review, Vol. 42, No. 1, pp 47-139.
473
474
Literature
Musungu, S.F. and G. Dutfield 2003: Multilateral Agreements and a TRIPS-Plus World: The World Intellectual Property Organisation (WIPO), TRIPS Issues Paper No. 3, Quaker United Nations Office, Geneva and Quaker International Affairs Programme, Ottawa; see: <www.geneva. quno.info/pdf/WIPO(A4)final0304.pdf>. National Science Foundations 2000: Science and Engineering Indicators 2000, Arlington, Virginia, the USA. Neumann, J. 2002: Die Koordination des WTO-Rechts mit anderen völkerrechtlichen Ordnungen: Konflikte des materiellen Rechts und Konkurrenzen der Streitbeilegung. Rechtsfragen der Globalisierung Band 4, Duncker und Humblot, Berlin. Norwegian Ministry of Agriculture and Food 2005: Høringsnotat med forslag til ny lov om planteforedlerrett, Landbruks- og matdepartementet, Oslo. Nottenburg, C., P. Pardey and B. Wright 2001: “Addressing Freedom to Operate Questions”, in P. Pardey (ed.): The Future of Food: Biotechnology Markets and Policies in an International Setting, International Food Policy Research Institute, Washington D.C. (in cooperation with John Hopkins University Press). Nozick. R. 1974: Anarchy, State and Utopia, Basil Blackwell, Oxford, UK. Nuffield Council on Bioethics 2002: The ethics of patenting DNA: a discussion paper, London; see: <www.nuffieldbioethics.org/fileLibrary/pdf/theethicsofpatentingdna.pdf>. O’Connor, B. 2003: “Protecting Traditional Knowledge – An Overview of a Developing Area of Intellectual Property Law”, in Journal of World Intellectual Property, Vol. 6, No. 5, pp. 679698. Opoku Awuku, E. 2005: “Biotechnology, Intellectual Property Rights and the Rights of Farmers in Developing Countries”, in Journal of World Intellectual Property, Vol. 8, No. 1, pp. 75-82. Oppermann, T. 1997: “Geistiges Eigentum: Ein “Basic Human Right” des Allgemeinen Völkerrechts”, in Weber, A. (ed.): Währung und Wirtschaft – Das Geld im Recht. Festschrift Prof. Dr. Hugo J. Hahn zum 70. Geburtstag, Nomos, Baden-Baden, Germany. Orford, A. 1999: “Contesting Globalization: A Feminist Perspective on the Future of Human Rights”, in B.H. Weston and S.A. Marks (eds.): The Future of Human Rights, Transnational Publishers, Ardsley, New York. Oshaug, A. and W. Barth Eide 2003: “The long process of giving content to an economic, social and cultural rights: twenty-five years with the case of the right to adequate food”, in M. Bergsmo (ed.): Human Rights and Criminal Justice for the Downtrodden. Essays in honour of Asbjørn Eide, Martinus Nijhoff Publishers, Leiden, Boston. Oskal, N. 2001: Political Inclusion of the Saami as Indigenous People in Norway”, in International Journal on Minority and Group Rights, Vol. 8, No 2-3, pp. 235-261. Otten, A. 1996: “Viewpoint of the WTO”, in Agrobiodiversity and Farmers’ Rights, Swaminathan Research Foundation, No. 14, Madras. Oxford Companion to English Literature 1995, Oxford University Press, Oxford (also used: New Oxford Dictionary of English 2001, Concise Oxford Dictionary 1989 and Oxford’s Advanced Learner’s Dictionary of Current English 1974, all Oxford University Press, Oxford). Paarlberg, R.L. 2001: The Politics of Precaution: Genetically Modified Crops in Developing Countries, John Hopkins University Press, Balimore and London, in cooperation with IFPRI. Pallottini, L. et al. 2004: “The Genetic Anatomy of a Patented Yellow Bean”, in Crop Science, Vol. 44, No. 3, pp. 968-977.
Literature
Palmer, T. 1990: “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects”, in Harvard Journal of Law and Public Policy, Vol. 13, No. 3, pp. 817-865. Palmeter, D. and P. C. Marvoidis 1998: “The WTO Legal System: Sources of Law”, in American Journal of International Law, Vol. 92, No. 3, pp. 398-413. Pardey, P. (ed.) 2001: The Future of Food: Biotechnology Markets and Policies in an International Setting, International Food Policy Research Institute, Washington D.C. (in cooperation with John Hopkins University Press). Pardey, P. and N.M. Beintema 2001: Slow Magic: Agricultural R&D a Century After Mendel, Agricultural Science and Technology Indicators Initiative, International Food Policy Research Institute IFRPI, Washington D.C.. Pardey. P. et al., 2003: “Intellectual Property and Developing Countries: Freedom to Operate in Agricultural Biotechnology”, Research at a Glance; Brief 3, International Food Policy Research Institute IFRPI, Washington D.C., USA. Pauwelyn, J. 1998: “Evidence, Proof and Persuasion in WTO Dispute Settlement: Who Bears the Burden?”, in Journal of International Economic Law, Vol. 1, No. 2, pp. 227-258. __2000: “Enforcement and Countermeasures in the WTO: Rules are Rules – Towards a More Collective Approach”, in American Journal of International Law, Vol. 94, No. 2, pp. 335-347. __2001 “The Role of Public International Law in the WTO: How Far Can We Go?” in American Journal of International Law, Vol. 95, No. 3, pp. 535-578. __2002: The Nature of WTO Obligations, Jean Monnet Working Papers No. 1/02, Jean Monnet Center, New York University School of Law. __2003a: “Does the WTO Stand for “Deference to” or “Interference with” National Health Authorities When Applying the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement)?”, in T. Cottier and P. Mavroidis (eds.): The Role of the Judge in International Trade Regulation: Experience and Lessons for the WTO, University of Michigan Press, Ann Arbor, Michigan. __2003b: “A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?”, in European Journal of International Law, Vol. 14, No. 5, pp. 907-951. __2003c: Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law, Cambridge Studies in International and Comparative Law, Cambridge University Press, Cambridge, UK. __2003d: “How to win a World Trade Organization Dispute Based on Non-World Trade Organization Law? Question of Jurisdiction and Merits”, in Journal of World Trade, Vol. 37, No. 6, pp. 997-1030. __2005: “Human Rights in WTO Dispute Settlement”, in T. Cottier, J. Pauwelyn and E. Burgi (eds.): Human Rights and International Trade, Oxford University Press, Oxford and New York. Peifer, K.N. 1996: “Brainpower and Trade: The Impact of TRIPS on Intellectual Property”, in German Yearbook of International Law, Vol. 39, pp. 100-133, Duncker & Humblot, Berlin, Germany. Peratis, K. et al. 1999: “Markets and Women’s International Human Rights”, in Brooklyn Journal of International Law, Vol. 25, No. 1, pp. 141-160. Perrin, R.K. 1994: “Intellectual Property Rights in Agricultural Development”, in J. Anderson (ed.): Agricultural Technology: Policy Issues for the International Community, CABI, Wallingford, Oxon, in association with the World Bank.
475
476
Literature
Petersmann, E.U. 2000: “From ‘Negative’ to ‘Positive’ Integration in the WTO: Time for ‘Mainstreaming Human Rights’ into WTO Law?”, in Common Market Law Review, Vol. 37, pp. 1363-1382. __2001a: “Human Rights and International Law in the 21st Century: The Need to Clarify their Relationships”, in Journal of International Economic Law, Vol. 4, No. 1, pp. 3-39. __2001b: Markets, Human Rights and Economic Welfare, paper presented at joint meeting of American Society of International Law and the World Trade Forum on ‘International Economic Law and Human Rights’, Bern, Switzerland, 13-14 August 2001 (on file with author in a version made ready for publishing). __2002: “Time for a United Nations ‘Global Compact’ for integrating Human Rights into the Law of Worldwide Organizations: Lessons From European Integration”, in European Journal of International Law, Vol. 13, No. 3, pp. 621-650. __2003: ”Human Rights and the Law of the World Trade Organization”, in Journal of World Trade, Vol. 37, No. 2, pp. 241-281. __2004: “The ‘Human Rights Approach’ advocated by the UN High Commissioner for Human Rights and by the International Labour Organization” in Journal of International Economic Law, Vol 7., No. 3, pp. 605-627. Philips, P.W.B. and D. Dierker 2001: “Realizing Public Benefits from Privatized Agrifood Research”, in P. Pardey (ed.): The Future of Food: Biotechnology Markets and Policies in an International Setting, International Food Policy Research Institute, Washington D.C. (in cooperation with John Hopkins University Press). Pingali, P. 2003: “Sustaining food security in the developing world: the top five policy challenges”, in Quarterly Journal of International Agriculture, Vol. 42, No. 3, pp. 259-270. Pinstrup-Andersen, P. 2002: Is research a global public good?, see: <www.ifpri.org/themes/biotech/ppa0200.htm>. Pinstrup-Andersen, P. and M.J. Cohen 2000a: “Modern Biotechnology for Food and Agriculture: Risks and Opportunities for the Poor”, pp. 159-169; in G. J. Persley and M. M. Lantin (eds.): Agricultural Biotechnology and the Poor, CGIAR, Washington D.C. __2000b: “Agricultural biotechnology: risks and opportunities for developing country food security”, in International Journal of Biotechnology, Vol. 2, No. 1/2/3, pp.145-163. __2001: “Rich and Poor Country Perspectives on Biotechnology” in P. G. Pardey (ed.): The Future of Food Biotechnology: Markets and Policies in an International Setting, International Food Policy Research Institute, Washington D.C. (distributed by John Hopkins University Press). Pires de Carvalho, N. 2003: From the Shaman’s Hut to the Patent Office: In Search of Effective Protection for Traditional Knowledge, paper presented at the Washington University School of Law Conference ‘Biodiversity and Biotechnology and the Protection of Traditional Knowledge’ 4-6 April 2003; at . __2004: The Problem of Gene Patents, Washington University Global Studies Law Review Vol. 3, No. 3, pp 701-753. __2005: The TRIPS Regime of Patent Rights (2nd Edition), Kluwer Law International, The Hague. Pistorius, R. and J. van Wijk 1999: The Exploitation of Plant Genetic Resources: Political Strategies in Crop Development, Biotechnology in Agriculture Series No. 22, CABI Publishing, Wallingford, UK.
Literature
Plahe, J.K. and C. Nyland 2003: “The WTO and patenting of life forms: policy options for developing countries”, in The Third World Quarterly, Vol. 24. No. 1, pp. 29-45. Posey D.A. and G. Dutfield 1996: Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities, International Development Research Centre and WWF, Ottawa, Canada and Gland, Switzerland. __1998: “Plants, Patents and Traditional Knowledge: Ethical Concerns of Indigenous and Traditional Peoples”, in G. van Overwalle (ed.): Patent Law, Ethics and Biotechnology, Bruylant, Brussel. Pray, C.E. et al. 2002: “The Importance of Intellectual Property Rights in the International Spread of Private Sector Agricultural Biotechnology”, in Agricultural Biotechnologies: New Avenues for Production, Consumption and Technology Transfer, Report from 6th International Conference of the International Consortium on Agricultural Biotechnology Research (ICABR), Tor Vergata University Rome Center of Sustainable Resource Development, Rome. Pray, C.E. and A. Naseem 2003a: The Economics of Agricultural Biotechnology Research, ESA Working Paper No 03-07, Agriculture and Economic Development Analysis Division, FAO, Rome; at . __2003b: Biotechnology, R&D: Policy Options to Ensure Access and Benefits for the Poor, ESA Working Paper No. 03-08, Agriculture and Economic Development Analysis Division, FAO, Rome; at . Primo Braga, C.A. and C. Fink 1998: “Reforming Intellectual Property Rights Regimes: Challenges for Developing Countries”, in Journal of International Economic Law, Vol. 1, No. 4, pp. 537554. Primo Braga, C. A., C. Fink and C. P. Sepulveda (eds.) 2000: Intellectual Property Rights and Economic Development, World Bank Discussion Paper 412, World Bank, Washington D.C.. Quick, R. and A. Blüthner 1999: “Has the Appellate Body Erred? An Appraisal and Criticism of the Ruling in the WTO Hormones Case” in Journal of International Economic Law, Vol. 2, No. 4, pp. 603-639. Qureshi, A. H. 2003: “Interpreting World Trade Organization Agreements for the Development Objective”, in Journal of World Trade, Vol. 37, No. 5, pp 847-882. Raghavan, C. 1990: “Recolonization: GATT, the Uruguay Round & the Third World”, Zed Books, London and New Jersey, in cooperation with Third World Network. Ragnekar, D. 2003: Geographical Indications: A Review of Proposals at the TRIPS Council: Extending Article 23 to Products other than Wines and Spirits, Intellectual Property Rights and Sustainable Development Issue Paper No. 4, International Centre for Trade and Sustainable Development and UNCTAD, Geneva. Ramanna, A. 2003: India’s Plant Variety and Farmers Rights Legislation: Potential Impact on Stakeholder Access to Genetic Resources, EPTD (Environment and Production Technology Division) Discussion Paper No. 96, International Food Policy Research Institute, Washington D.C. Ramanna, A. and M. Smale 2004: “Rights and Access to Plant Genetic Resources under India’s New Law”, in Development Policy Review, Vol. 22, No. 4, pp. 423-442. Raphael, D.D. 1967: “Human Rights Old and New”, in D.D. Raphael (ed.): Political Theory and the Rights of Man, Macmillan Press, London. Rawls. J. 1999: The Law of Peoples, Harvard University Press, Cambridge, Massachusets and London.
477
478
Literature
Raworth, K. 2001: “Measuring Human Rights” in Ethics & International Affairs, Vol. 15, No. 1, pp. 111-131. Reichmann, J.H. 1997: “From Free Riders to Fair Followers: Global Competition under the TRIPS Agreement”, in New York University Journal of International Law and Politics, Vol. 29, No. 1, pp. 11-93. __1998: “Universal Minimum Standards of Intellectual Property Protection Under the TRIPs Component of the WTO Agreement”, in C.M. Correa and A.A. Yusuf (eds.): Intellectual Property and International Trade: The TRIPS Agreement, Kluwer Law International, London, The Hague, Boston. __2000: “The TRIPS Agreement Comes of Age: Conflict or Cooperation with the Developing Countries?”, in Case Western Reserve Journal of International Law, Vol. 32, pp. 441-470. Richer, D.L. and E. Simon 2000: “AgrEvo”; in Lele, U., W. Lesser & G. Horstkotte-Wesseler (eds.): Intellectual Property Rights in Agriculture: The World Bank’s Role in Assisting Borrower and Member Countries, Rural Development Departure, World Bank, Washington D.C.. Robertson, R. 1994: “Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realizing Economic, Social and Cultural Rights”, in Human Rights Quarterly, Vol. 16, No. 4, pp. 693-714. Robinson, J.G 1971: The Accumulation of Capital, 3rd Edition, MacMillan, London. Roessler, F. 1996: “Diverging Domestic Policies and Multilateral Trade Regulations”, in R. Hudec and J. Bhagwati (eds.): Free Trade and Harmonization: Prerequisites for Free Trade, Volume 2: Legal Analysis, MIT Press, Cambridge, Massachusetts. Rott, P. 2002: Patentrecht und Sozialpolitik unter dem TRIPS-Abkommen, Schriftenreihe des Zentrums für Europäische Rechtspolitik an der Universität Bremen (ZERP), Nomos Verlagsgesellschaft, Baden-Baden. Royal Society of Canada, the 2000: Elements of Precaution: Recommendations for the Regulation of Food Biotechnology in Canada; An Expert Panel Report on the Future of Food Biotechnology prepared by The Royal Society of Canada at the Request of Health Canada, Canadian Food Inspection Agency and Environment Canada, Ottawa, Ontario; at <www. rsc.ca/foodbiotechnology/indexEN.html>. Ruiz, M. 2003: “The Andean Community regimes on access to genetic resoures, intellectual property and indigenous peoples’ knowkedge”, in C. Bellmann, G. Dufield. and R. Meléndez-Ortiz (eds.) Trading in Knoweldge: Development Perspectives on TRIPS, Trade and Sustainability, Earthscan, London. Ryder, E.J. 1984: “The Art and Science of Plant Breeding in the Modern World of Research Management” in HortScience Vol. 19, No. 6, pp. 808-811. Sadat-Akhavi, S. A. 2003: Methods of Resolving Conflicts between Treaties, Martinus Nijhoff Publishers, Leiden and Boston. Sahai, S. 2002: “India’s Plant Variety Protection and Farmers’ Rights Legislation”, in P. Drahos and R. Mayne: Global Intellectual Property Rights: Knowledge, Access and Development, Palgrave MacMillan, Hampshire, UK, and New York, in cooperation with Oxfam. Salazar, S. et al. 2000: The Use of Proprietary Biotechnology Research Inputs at Selected Latin American NAROs, ISNAR Briefing Paper No. 44, The Hague. Sampath, P.G. and R.G. Tarasofsky 2002: Study on the Inter-Relations between Intellectual Property Rights Regimes and Conservation of Genetic Resources, study for the European Commission, Institute for International and European Environmental Policies, Berlin; at <www.biodiv. org/doc/meetings/abs/abswg-02/information/abswg-02-inf-ext-en.pdf>.
Literature
Samuelson, P. 2004: “Intellectual Property Arbitrage: How Foreign Rules can Affect Domestic Protections”, in The University of Chicago Law Review, Vol. 71, No. 1, pp. 223-239. Scheinin, M. 2001: “Economic and Social Rights as Legal Rights”, in A. Eide, C. Krause and A. Rosas (eds.) 2001: Economic, Social and Cultural Rights – A Textbook (2nd Revised Edition), Martinus Nijhoff Publishers, Dordrecht, Boston, London. Schermers, H.G. 1988: “The international protection of the right of property”, in F. Matcher and H. Petzold (eds.): Protecting Human Rights: The European Dimension – Studies in honour of Gérard J. Wiarda, Carl Heimanns Verlag, Köln, Berlin, Bonn, München. Schoenbaum T.J. 1998: “WTO Dispute Settlement: Praise and Suggestions for Reform”, in International and Comparative Law Quarterly, Vol. 47, No. 3, pp. 647-658. Schrijver, N. 1997: Sovereignty over Natural Resources: Balancing Rights and Duties, Cambridge University Press, Cambridge, UK. __2003: The Right to Development – Cornerstone or stumbling block in the evolution of the International law of development? paper presented at the Nobel Symposium on the Right to Development and Human Rights in Development, Oslo, 13-15 October 2003 (on file with author). Scoones, I. 2002: “Agricultural Biotechnology and Food Security: Exploring the Debate”, IDS Working Paper 145 (Biotechnology Policy Series No. 1), Institute of Development Studies, Brighton, UK. Seiderman, I.D. 2001: Hierarchy in International Law: The Human Rights Dimension, Intersentia/ Hart, Antwerpen, Groningen, Oxford. Sell, S.K. 1998: Power and Ideas: The North-South Politics of Intellectual Property and Antitrust, State University of New York Press. __2003: Private Power, Public Law: The Globalization of Intellectual Property Rights, Cambridge University Press, Cambridge, UK. Sen, A. 1981: Poverty and Famines: An Essay on Entitlement and Deprivation, Clarendon Press, Oxford. Sepúlveda, M. 2003: The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights, Intersentia, Antwerpen, Oxford, New York. Shanker, D. 2002: “The Vienna Convention on the Law of Treaties, the Dispute Settlement System of the WTO and the Doha Declaration on the TRIPS Agreement” in Journal of World Trade, Vol. 36, No. 4, pp. 721-772. Shaw, M.N. 1986: International Law (2nd Edition), Grotius Publications, Llandysul and Cambridge, UK. Shaw, M.N. 2003: International Law (5nd Edition), Grotius Publications, Llandysul and Cambridge, UK. Sheff, J. 2002: Summer Report 2002: The Right to Food and the World Food Summit: five years Later; at <www.ksg.harvard.edu/cchrp/pdf/The%20Right%20to%20Food%20Report02.pdf>. Sherwood, R.M.: 1997: “The TRIPS Agreement: Implications for Developing Countries”, in IDEA: The Journal of Law and Technology, Vol. 37, No. 3, pp. 491-544. Shiva, V. 1993: Monocultures of the Mind: Biodiversity, Biotechnology and the Third World, Third World Nework, Penang. __1997: Biopiracy: the Plunder of Nature and Knowledge, South End Press, Boston. __2001: Protect or Plunder? Understanding Intellectual Property Rights, Zed Books, London and New York.
479
480
Literature
__2004: “Monsanto’s Biopiracy” in Ecologist Asia Vol. 11, No. 4; at . Shoemaker, R. 2001: Economic Issues in Agricultural Biotechnology, Agriculture Information Bulletin No. 762, Resource Economics Division, Economic Research Service, US Department of Agriculture, Washington D.C.. Shue, H, 1980: Basic Rights – Subsistence, Affluence and U.S. Foreign Policy, Princeton University Press, Princeton, New Jersey. __1984: “The Interdependency of Duties”; in P. Alston and K. Tomasevski (eds.): The Right to Food, Martinus Nijhoff Publishers, The Hague. Simma, B. 1997: “From Bilateralism to Community Interest”, Recueil des cours, 1994 VI, Vol. 250, Hague Academy of International Law and Martinus Nijhoff Publishers, The Hague, Boston, London. Sinclair, I. 1984: The Vienna Convention on the Law of Treaties (2nd Edition), Manchester University Press, Manchester. Skogly, S. 2000: From Human Capital to Human Rights: The Human Rights Obligations of the World Bank and the IMF, PhD University of Oslo (published 2001 as ‘The human rights obligations of the World Bank and the International Monetary Fund’, Cavendish, London). __2002: Extra-national obligations towards economic and social rights, International Council on Human Rights Policy; see: < www.ichrp.org/paper_files/108_w_04.doc>. __2003: “The obligation of international assistance and co-operation in the International Covenant on Economic, Social and Cultural Rights”, in Bergsmo, M. (ed.): Human Rights and Criminal Justice for the Downtrodden. Essays in honour of Asbjørn Eide, Martinus Nijhoff Publishers, Leiden, Boston. South Centre 2001: “Africa’s Model Law on Community Rights under Attack”, in South Bulletin No. 15, pp. 3-6. __2004: South Bulletin No. 89, pp. 498-501. South Centre and CIEL 2004: IP Quarterly Update: Third Quarter 2004: Intellectual Property and Development: Overview of Developments in Multilateral, Plurilateral and Bilateral Fora; see: <www.southcentre.org/info/sccielipquarterly/ipdev2004q3.pdf>. Spielmann, D.J. and K. von Grebmer 2004: Public-Private Partnerships in Agricultural Research: An Analysis of Challenges Facing Industry and the Consultative Group on International Agricultural Research, Environment and Production Technology Division Discussion Paper No. 113, International Food Policy Research Institute IFRPI, Washington D.C. Spiked 2003: Seeds of the future; see: <www.spiked-online.com/articles/00000006DC0B.htm>. Spillane, C. 1999: Recent developments in biotechnology as they relate to plant genetic resources for food and agriculture, Commission on Genetic Resources for Food and Agriculture, Background Study Paper No. 9, FAO, Rome. __2002: “Agricultural biotechnology and developing countries: proprietary knowledge and diffusion of benefits”; in T. M. Swanson (ed.): Biotechnology, Agriculture and the Developing World, Edward Elgar, Cheltenham, UK and Northampton, MA, USA. Spillane, C. and Y. Pinto 2002: “Biosafety in Agricultural Biotechnology: Balancing Social and Environmental Impacts”, in T. Swanson (ed): The Economics of Managing Biotechnologies, Kluwer Academic Publishers, Dordrecht, The Netherlands. Srinivasan, C.S. 2003: “Exploring the Feasibility of Farmers’ Rights”, in Development Policy Review, Vol. 21, No. 4, pp. 419-447.
Literature
__2004: “Concentration in ownership of plant variety rights: some implications for developing countries” in Food Policy, Vol. 28, No. 5-6, pp. 519-546. Srinivasan 2002, T.N.: “The TRIPS Agreement”, in D.L.M Kennedy and J.D. Southwick (eds.): The Political Economy of International Trade Law, Cambridge University Press, Cambridge, UK. Staehelin, A. 1999: Das TRIPS-Abkommen Immaterialgüterrechte im Licht der Globalisierten Handelspolitik, 2. überarbeitete und erweiterte Auflage, Stämpfli Verlag, Bern. Stenvik, A. 2001: Patenters beskyttelsesomfang, Cappelen Akademisk Forlag, Oslo, Norway. Sterckx, S. 2005: “The Ethics of Patenting – Uneasy Justifications”, in Drahos, P. (ed.): Death of Patents, 11 Perspectives on Intellectual Property Law and Policy, Lawtext Publishing, Oxon, UK, in cooperation with Queen Mary Intellectual Property Institute, University of London. Stevenson, G.R. 2000: “Trade Secrets: The Secret to Protect Indigenous People’s Ethnobiological (Medicinal) Knowledge”, in International Law and Politics, Vol. 32, pp. 1119-1174. Stoll, P.T and A.v. Hahn 2004: “Indigenous Peoples, Indigenous Knowledge and Indigenous Resources in International Law”, in S. von Levinsky (ed.): Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore, pp. 5-48, Kluwer Law International, The Hague, London, New York. Straus, J. 1996: “Implications of the TRIPs Agreement in the Field of Patent Law”, in F.-K. Beier and G. Schricker (eds.): From GATT to TRIPS: The Agreement of Trade-Related Aspects of Intellectual Property Rights, published by the Max Planck Institute for Foreign and International Patent, Copyrights and Competition Law, Munich, ILC Studies 18, published jointly by VCH Publishing, Weinheim, New York. __1998: “Biodiversity and Intellectual Property”, in AIPPI Yearbook 1998, Vol. IX, pp. 99-119, AIPPI, Zürich. Sucharitkul, S. 1994: “The Right to Food and Freedom from Hunger in the Past Sixth of a Century”, in M. Rama-Montaldo (ed.): International Law in an Evolving World,Liber Amicorum in Tribute to Prof. Eduardo Jiménes de Aréchaga, Fundación de Cultura Universitaria, Motevideo, Uruguay. Swanson, T. 1996: “The reliance of northern economies on southern biodiversity: biodiversity as information”, in Ecological Economics, Vol. 17, No. 1, pp. 1-8. __2002: “Biotechnologies and developing countries: how will the anticipated industrial changes in agriculture affect developing countries?” in Swanson, T. (ed.): Biotechnology, Agriculture and the Developing World, Edward Elgar, Cheltenham, UK and Northampton, Massachusetts, USA. Tansey, G. 1999: Trade, Intellectual Property, Food and Biodiversity – Key issues and options for the 1999 review of Article 27.3(b) of the TRIPS Agreement, Quaker Peace and Service, London. Tawfiq, M. 2004: “Asia and Bioeconomy: Growing Synergies” in Asian Biotechnology and Development Review, Vol. 6, No. 3, pp. 5-8. ten Kate, K and S.A. Laird 1999: The Commercial Use of Biodiversity: Access to Genetic Resources and Benefit-Sharing, Earthscan, London. Thorley, S. et al. 2000: Terrell on the Law of Patents, 15th Edition, Sweet & Maxwell, London. Tomasevski, K. 1995: “Justiciability of Economic, Social and Cultural Rights”, in ICJ Review No. 55: Economic, Social and Cultural Rights and the role of Lawyers, International Commission of Jurists, Geneva. Tomuschat, C. 1994: “Obligations for States”, Recueil des cours, 1993 IV, Vol. 241, Hague Academy of International Law and Martinus Nijhoff Publishers, The Hague, Boston, London.
481
482
Literature
__2001: “General Course on Public International Law”, Recueil des cours, 1999 VI, Vol. 281, Hague Academy of International Law and Martinus Nijhoff Publishers, The Hague, Boston, London. Trachtmann, J.P. 2002: “Institutional Linkage: Transcending ‘Trade and…’â•›” in American Journal of International Law, Vol. 96, No. 1 pp. 77-93. Traxler, G. 2001: Biotechnology in a Complete System of Genetic Improvement: A Policy Perspective on Developed and Developing Countries, Policy Seminar at IFPRI held 18 October 2001 (on file with author). __2003: Let them eat GM? the Biotechnology Picture in Latin America, Conference Crossing Over: Genomics in the Public Arena, 25 April 2003, Kanaskis, Alberta, Canada (on file with author). Trilateral Project 2000: Trilateral Project 24.1 (B3b): Comparative Study on Biotehnology Patent Practices, Comparative Study Report; at <www.uspto.gov/web/tws/sr-3-bio.htm>. UK Government 2003: GM Nation? The Findings of the Public Debate, Department of Trade and Industry, London; at <www.gmnation.org.uk/docs/gmnation_finalreport.pdf>. UN High Commissioner for Human Rights 2005: Human Rights and World Trade Agreements: Using General Exception Clauses to Protect Human Rights, OCHCHR, Geneva. UNCTAD 1996: The TRIPs Agreement and Developing Countries, UNCTAD/ITE/1, New York and Geneva. UNCTAD/ICTSD 2005: Resource Book on TRIPS and Development, United Nations Conference on Trade and Development and International Centre for Trade and Sustainable Development, Cambridge University Press, Cambridge and New York. UNDP 2001: Human Development Report: Making New Technologies Work for Human Development, Oxford University Press, Oxford and New York. US National Research Council 2002: Environmental Effects of Transgenic Plants: The Scope and Adequacy of Regulation, Committee on Environmental Impacts Associated with Commercialization of Transgenic Plants, National Academy Press, Washington D.C.. USPTO 2001: Utility Examintion Guidelines, Federal Register Vol. 66, No. 4, p. 1092-1099 (RIN 0651-AB09) Vandenhole, W. 2004: The Procedures Before the UN Human Rights Treaty Bodies: Divergence or Convergence?, Intersentia, Antwerp and Oxford. van Hase, A.M. 1998: “The Application and Interpretation of the Agreement on Trade-Related Aspects of Intellectual Property Rights”, in C. Correa and A. Yusuf (eds.): Intellectual Property and International Trade: the TRIPs Agreement, Kluwer Law International, London, The Hague, Boston. van Hoof, G.J.H. 1984: “The Legal Nature of Economic, Social and Cultural Rights: a Rebuttal of Some Traditional Views”; in P. Alston and K. Thomasevski (eds.) 1984: The Right to Food, Martinus Nijhoff Publishers, Dordrecht. van Overwalle, G. 2005: “Legal and Ethical Aspects of Bio-Patenting: Critical Analysis of the EU Biotechnology Directive”, in Drahos, P. (ed.): Death of Patents, 11 Perspectives on Intellectual Property Law and Policy, Lawtext Publishing, Oxon, UK, in cooperation with Queen Mary Intellectual Property Institute, University of London. van Wijk, J, J.I. Cohen and J. Komen 1993: Intellectual Property Rights for Agricultural Biotechnology: Options and Implications for Developing Countries, ISNAR Research Report No. 3, International Service for National Agricultural Research, the Hague, the Netherlands.
Literature
van Wijk, J., N. Louwaars and D. Eaton 2003: Framework for the Introduction of Plant Variety Protection in Developing Countries, Study undertaken at the Dutch Agricultural Research Organisation (DLO), part of Wageningen University and Research Centre, the Netherlands, at <www.lei.dlo.nl/ northsouth/files/c90dd260c589705504842838929893fb.doc>. Venero B. 2003: “The Peruvian Law on Protection of the Collective Knowledge of Indigenous Peoples Related to Biological Resources”, in C. Bellmann, G. Dufield and R. Meléndez-Ortiz (eds.): Trading in Knowledge: Development Perspectives on TRIPS, Trade and Sustainability, Earthscan, London. Verma, S.K. 1995: “TRIPS and Plant Variety Protection in Developing Countries”, in European Intellectual Property Review, Vol. 17, No. 6, pp. 281-289. __2004: “Protecting Traditional Knowledge: Is a Sui Generis System an Answer?”, in Journal of World Intellectual Property, Vol. 7, No. 6, pp. 765-805. Vivas-Engui, D, M. Ruiz and M. Espinosa 2003: International Processes on Genetic Resources and Traditional Knowledge: Options and Negotiation Alternatives, background paper for the conference “International Processes on Genetic Resoures and Traditional Knowledge: Which Way Forward?” Geneva, Switzerland; at <www.ictsd.org/dlogue/2003-07-11/Draft_ BackgrPaper.pdf>. von Hahn, A. 2004: Traditionelles Wissen indigener und lokaler Gemeinschaften zwischen geistigen Eigentumsrecht und der public domain (Beitrage zum ausländischen öffentlichen Recht und Völkerrecht, Band 170), Springer Verlag, Berlin. von Levinsky, S. (ed.) 2004: Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore, Kluwer Law International, The Hague, London, New York. Walker, S. 2001: TRIPs, the World Health Organization, the World Intellectual Property Organization, and the Food and Agricultural Organization: The Human Rights Angle, paper presented at joint meeting of American Society of International Law and the World Trade Forum on ‘International Economic Law and Human Rights’, Bern Switzerland 13-14 August 2001 (on file with author in a version made ready for publishing). Wanjiru Mwangi, J. E. 2002: TRIPs and Agricultural Biotechnology: Implications for the Right to Food in Africa, Master Thesis, Human Rights and intellectual Property Rights, Faculty of Law, University of Lund, Sweden. Watal, J. 1998: “The TRIPS Agreement and Developing Countries - Strong, Weak or Balanced Protection”, in The Journal of World Intellectual Property, Vol. 1, No. 2, pp. 281-307. __2000a: “Pharmaceutical Patents, Prices and Welfare Losses: A Simulation Study of Policy Options for India under the WTO TRIPS Agreement”, in World Economy, Vol. 23, No. 5, pp. 733-752. __2000b: “Implementing the TRIPS Agreement on Patents: Optimal Legislative Strategies for Developing Countries” in O. Lippert (ed.): Competitive Strategies for the Protection of Intellectual Property, Fraser Institute, Vancouver, Canada. __2001: Intellectual Property Rights in the WTO and Developing Countries, Kluwer Law International, The Hague, London, Boston. Weeramantry, C.G. 1990: “Human Rights, Technology, and Development”; in C.G. Weeramantry (ed.): Human Rights and Scientific and Technological Development, United Nations University Press, Tokyo. __1997: Justice without Frontiers. Volume 1: Furthering Human Rights, Kluwer Law International, The Hague, London, Boston.
483
484
Literature
__1998: Justice without Frontiers. Volume 2: Protecting Human Rights in the Age of Technology, Kluwer Law International, The Hague, London, Boston. Weiler, J.H.H., A. Cassese and M. Spinedi (eds.) 1989: International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility, Walter de Gruyter, Berlin and New York. Weissbrodt, D. and Schoff, K. 2003: “Human Rights Approach to Intellectual Property Protection: The Genesis and Application of Sub-Commission Resolution 2000/7 ”, in Minnesota Intellectual Property Review, Vol. 5, No. 1, pp. 1-37. Wendland. W, 2000: Intellectual Property and Human Rights, Paper presented for the Day of General Discussion on “The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”, Committee on Economic, Social and Cultural Rights, 27 November 2000 (E/C.12/2000/19). Williams, D. 2001: “Developing TRIPS Jurisprudence – The first six years and beyond”, in Journal of World Intellectual Property, Vol. 4, No. 2, pp 177-210. Wolfrum, R. and N. Matz 2003: Conflicts in International Environmental Law, Beitrage zum ausländischen öffentlichen Recht und Völkerrecht Band 164, Springer, Berlin, Heidelberg, New York. Wood, D. 1998: “Real Rights for Farmers”, Biotechnology and Development Monitor, No. 36, p. 24. World Bank 2003: The CGIAR at 31: A Meta-Evaluationof the Consultative Group on International Agricultural Research, Volume 2: Technical Report, World Bank Operations Evaluation Department, Washington D.C. World Bank Sub-Saharan Africa Seed Initiative Team 1998: “Initiatives for Sustainable Seed Systems in Africa,” in Proceedings of the Regional Technical Meeting on Seed Policy and Programmes for Sub-Saharan Africa, 23-27 November 1998 Abidjan, Côte d’Ivoire, hosted by FAO’s Seed and Plant Genetic Resources Service, under the Plant Production and Protection Division, at <www.fao.org/ag/AGP/AGPS/Abidjan/paper12.htm>. World Wildlife Fund (WWF) and CIEL 2001: Biodiversity & Intellectual Property Rights: Reviewing Intellectual Property Rights in Light of the Objectives of the Convention on Biological Diversity, Joint Discussion Paper, WWF – World Wide Fund for Nature, Gland, Switzerland and CIEL, Geneva, Switzerland; see: <www.ciel.org/Publications/tripsmay01.pdf>. Wright B.D. 1998: “Public germplasm at a crossroads: Biotechnology and intellectual property”, in California Agriculture, Vol. 52, No. 6, pp. 8-13. __2000: “Intellectual Property Rights Challenges and International Research Collaboration in Agricultural Biotechnology”, in M. Qaim, A.F. Krattiger and J.v. Braun (eds.): Agricultural Biotechnology in Developing Countries: Towards Optimizing the Benefits for the Poor, Kluwer, Boston, Dordrecht, London. Yambrusic, E.S. 1987: Treaty Interpretation: Theory and Reality, University Press of America, Lanham, Maryland, USA. Yamin, F. 2003: “Intellectual Property Rights, Biotechnology and Food Security”, IDS Working Paper 203 (Biotechnology Policy Series No. 22), Institute for Development Studies, Brighton, UK.
Literature
Interviews H. Bosch, Senior European Patent Attorney & H. Laanen, Assistant European Patent Attorney, Monsanto, Brussel, Belgium, 29 August 2002. Yolanda Huerta, Senior Legal Officer in UPOV, telephone conversation 2 June 2005. D. Leskien, Advisor, European Parliament, Brussel, Belgium, 29 August 2002. R. Thompson, previously Head of World Bank Rural Division, Oslo, 5 February 2003. P. Weibull, Deputy Research Director, Swalöf Weibull, Hamar, 19 and 20 September 2002.
Documents United Nations Treaties –
International Covenant on Economic, Social and Cultural Rights: UN doc A/RES/2200 (XXI), annex; 21 U.N. GAOR Supp. (No. 16), at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3; entered into force 3 January 1976.
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International Covenant on Civil and Political Rights: UN Doc A/RES/2200 (XXI), annex; 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force 23 March 1976.
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Vienna Convention on the Law of Treaties, 22 May 1969, 1155 U.N.T.S. 331, entered into force 27 January 1980.
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Third Geneva Convention relative to prisoners of war, 12 August 1949, 75 U.N.T.S. 135, entered into force 21 October 1950.
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Fourth Geneva Convention relative to the protection of civilian persons in time of war, 12 August 1949, 75 U.N.T.S. 287, entered into force 21 October 1950.
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ILO 1989: ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries, adopted 27 June 1989; 72 ILO Official Bulletin 59; entered into force 5 September 1991.
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United Nations Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79, entered into force 29 December 1993. (See also Cartagena Protocol on Biosafety adopted 29 January 2000).
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FAO’s International Treaty on Plant Genetic Resources for Food and Agriculture, adopted 2 November 2001 as Resolution 2001/3 of the 31st Session of the FAO Conference; entered into force 29 June 2004.
General Assembly Resolutions and Declarations (travaux préparatoires is not included) –
217A 1948 (III).Universal Declaration of Human Rights, 10 December 1948.
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2450 1968 (XXIII): Human rights and scientific and technological developments, 19 December 1968.
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2158 (XXI): Permanent sovreignty over natural resources, 25 November 1966.
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Literature
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3171 (XXVIII): Permanent sovreignty over natural resources, 17 December 1973.
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3281(XXIX): Charter of Economic Rights and Duties of States, 12 December 1974.
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3384 (XXX) Declaration on the Use of Scientific and Technological Progress in the Interest of Peace and for the Benefit of Mankind, 10 November 1975.
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A/RES/37/189: “Human rights and scientific and technological developments”, 18 December 1982
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A/RES/41/128: “Declaration on the right to development”, 4 December 1986
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A/RES/42/102: “Indivisibility and interdependence of economic, social, cultural, civil and political rights”, 7 December 1987.
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A/RES/53/152: “The human genome and human rights”, 10 March 1999 (adopted 9 December 1998, endorsing the Universal Declaration on Human Rights and the Human Genome Project adopted at UNESCO General Conference in 1997).
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A/RES/55/2: United Nations Millennium Declaration, 23 September 2000 (adopted 8 September 2000).
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A/RES/56/155: “The right to food” 19 December 2001.
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A/RES/57/226: “The right to food” 18 December 2002.
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A/RES/58/186: “The right to food” of 22 December 2003.
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A/RES/59/202: “The right to food” of 20 December 2004.
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A/RES/58/200: “Science and Technology for Development” 30 January 2004 (adopted 23 December as a response to a report by the UN Secretary-General (A/58/76) (UN 2003a)).
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A/CONF. 32/41: Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968.
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A/CONF.157/23: Vienna Declaration and Programme of Action, 12 July 1993.
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A/CONF.199/20, annex: Plan of Implementation from the World Summit on Sustainable Development, Johannesburg, 4 September 2002.
Reports to the United Nations General Assembly –
UN 1996: International Law Commission: Report on the work of its forty-eight session (6 May 26 July 1996) UN doc A/51/10, General Assembly Official Record, Fifty-sixth Session, Supplement No. 10.
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UN 2000a: Report by ILC Special Rapporteur James Crawford, A/CN.4/507, 10 March 2000.
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UN 2000b: International Law Commission: Report on the work of its fifty-second session (1 May - 9 June and 10 July - 19 August 2001), UN doc A/55/10, General Assembly Official Record, Fifthy-fifth Session, Supplement No. 10.
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UN 2001a: International Law Commission: Report on the work of its fifty-third session (23 April - 1 June and 2 July - 10 August 2001) UN doc A/56/10, General Assembly Official Record, Fifty-sixth Session, Supplement No. 10.
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UN 2001b: The right to food, Report of the Special Rapporteur on the right to adequate food, A/56/210, 23 July 2001.
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UN 2002: The right to food, Report of the Special Rapporteur on the right to adequate food, A/57/356, 27 August 2002.
Literature
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UN 2003a: Impact of new biotechnologies, with particular attention to sustainable development, including food security, health and economic productivity, Report of the SecretaryGeneral, A/58/76, 9 May 2003.
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UN 2003b: The right to food, Report of the Special Rapporteur on the right to adequate food, A/58/330, 28 August 2003.
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UN 2004a: International Law Commission: Report on the work of its fifty-sixth session (3 May - 4 June and 5 July - 6 August 2004) UN doc A/59/10, General Assembly Official Record, Fiftyninth Session, Supplement No. 10.
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UN 2004b: The right to food, Report of the Special Rapporteur on the right to adequate food, A/59/385, 27 September 2004.
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UN 2005: International Law Commission: Report on the work of its fifty-seventh session (2 May to 3 June and 11 July to 5 August 2005), UN doc A/60/10, General Assembly Official Record, Sixtieth Session, Supplement No. 10.
ECOSOC Documents –
E/1981/22: Note by the Secretary-General transmitting the first report of the Food and Agricultural Organization concerning the rights covered by Article 11 of the International Covenant on Economic, Social and Cultural Rights, 23 March 1981.
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E/RES1985/17: Review of the composition, organization and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 28 May 1985.
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E/RES/1987/5: the International Covenant on Economic, Social and Cultural Rights, 26 May 1987.
Committee on Economic, Social and Cultural Rights (note that documents presented at the Day of General Discussion on Article 15.1(c) (E/C.12/2000/14 -E/ C.12/2000/20) are listed above) –
Report of the First Session of the Committee on Economic, Social and Cultural Rights, E/ C.12/1987/SR.6.
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Report of the Second Session of the Committee on Economic, Social and Cultural Rights, E/C.12/1988/SR.22.
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General Comment No. 1: Reporting by State parties (including ‘Introduction: the purpose of general comments’) UN doc. E/1989/22. p. 87-89, by the Committee on Economic, Social and Cultural Rights.
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Revised Guidelines Regarding the Form and Contents of Reports to be Submitted By State Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, UN doc. E/1991/23, pp.88-110.
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General Comment No 3: Nature of States Parties Obligations (Article 2 paragraph 1 of the Covenant) UN doc. E/1991/23, pp. 83-87.
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General Comment No. 5: Persons with disabilities, UN doc. E/1995/22, pp. 99-109.
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General Comment No 6: The economic, social and cultural rights of older persons, UN doc. E/1996/22, pp. 97-105.
487
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Literature
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General Comment No. 9: Domestic Application of the Covenant, UN doc. E/1999/22, pp. 117121.
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Statement by the Committee on Economic, Social and Cultural Rights: Globalization and Economic, Social and Cultural Rights; at <www.unhchr.ch/html/menu2/6/cescrnote. htm#note18b>.
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Statement of the UN Committee on Economic, Social and Cultural Rights to the Third Ministerial Conference of the World Trade Organization, E/C.12/1999/9.
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General Comment No. 12: The right to adequate food (Article 11 of the Covenant), UN doc E/2000/22, pp. 102-110.
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General Comment No 13: The right to education (Article 13 of the Covenant), UN doc E/2000/22, pp. 111-127.
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General Comment No. 14: The right to the highest attainable standard of health (Article 12 of the Covenant) UN Doc. E/C.12/2000/4.
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Statement by the Committee on Economic Social and Cultural Rights: Follow-up to the day of general discussion on article 15.1 (c), E/C.12/2001/15.
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General Comment No. 16: The equal right of men and women to the enjoyment of all economic, social and cultural rights, UN doc. E/C.12/2005/3.
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General Comment No. 17 : The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.Article 15.1(c) of the Covenant; UN doc. E/C.12/GC/17.
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Concluding observations on report from Kenya, E/C.12/1993/6.
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Concluding observations on report from Canada, E/C.12/1993/5.
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Concluding observations on report from Egypt (E/C.12/1/Add.44), 2000.
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Concluding observations on report from Australia (E/C.12/1/Add.50), 2000.
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Concluding observations on report from Morocco (E/C.12/1/Add.55), 2000.
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Concluding observations on report from Syria (E/C.12/1/Add.63), 2001.
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Concluding observations on report from Nepal E/C.12/1/Add.66), 2001.
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Concluding observations on report from Germany (E/C.12/1/Add.68), 2001.
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Concluding observations on report from Algeria (E/C.12/1/Add.71), 2001.
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Concluding observations on report from Ecuador (E/C.12/1/Add.100), 2004.
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Concluding observations on report from Denmark (E/C.12/1/Add.102), 2004.
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Concluding observations on report from Chile (E/C.12/1/Add.105), 2004.
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Summary Record of Meeting held 25 August 2000 (E/C.12/2000/SR.47).
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Summary Record of Meeting held 21 November 2000 (E/C.12/2000/SR.61).
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Summary Record of Meeting held 24 August 2001 (E/C.12/2001/SR.49).
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Summary Record of Meeting held 11 November 2004 (E/C.12/2004/SR.36).
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Summary Record of Meeting held 11 November 2004 (E/C.12/2004/SR.37).
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Report from Sweden to the Committee on Economic, Social and Cultural Rights, E/C.12/4/ Add.2.
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Report from Germany to the Committee on Economic, Social and Cultural Rights, E/C.12/4/ Add.3.
Literature
Human Rights Committee –
1981: López Burgos v. Uruguay and Celiberti v. Uruguay (XXXVI General Assembly Official Record (GAOR) Supplement UN Doc. Supp. No. 40, A/36/40) (Report of the Human Rights Committee), pp. 176-189. See also Saldias de Lopez v. Uruguay, Communication No. 52/1979, 29 July 1981, U.N. Doc. CCPR/C/OP/1 (1984), p. 88.
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General Comment No. 3: Implementation at the national level (Article 2), 1981; found in UN Doc. HRI/GEN/1/Rev.6, p. 125.
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General Comment No 6: Article 6 (the right to life), GAOR Doc A/37/40, pp. 37-40, 1982; found in UN Doc. HRI/GEN/1/Rev.6 at 127.
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General Comment No. 12: The right to self-determination of peoples (Art. 1), GAOR doc A/39/40, pp.142-143, 1984.
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General Comment No. 23: The rights of minorities (Art. 27), UN Doc. CCPR/C/21/Rev.1/Add.5, 1994.
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General comment No. 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under Article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6, 1994.
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General Comment No. 31: Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, 2004.
Committee on the Rights of the Child Concluding observations to the report by El Salvador (CRC/C/15/Add.232), 4 June 2004.
Commission on Human Rights (travaux préparatoires is not included) –
E/CN.4/1986/RES/9: Use of Scientific and Technological Developments for the Promotion and Protection of Human Rights and Fundamental Freedoms, 1986.
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E/CN.4./1987/17: The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 1987.
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E/CN.4/1997/105 and Annex: Status of the International Covenants on Human Rights: Draft optional protocol to the International Covenant on Economic, Social and Cultural Rights, Note by the Secretary-General, (Based on report from the fifteenth session of the Committee on Economic, Social and Cultural Rights (E/C.12/1996/SR.44-49 and 54)).
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E/CN.4/1998/21: Report of the High Commissioner for Human Rights on the right to food.
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E/CN.4/1999/45: Report of the High Commissioner for Human Rights on the right to food.
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E/CN.4/2001/148: The right to food - Report on the Third Expert Consultation.
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E/CN.4/2001/53: Report by Special Rapporteur on the Right to Food, submitted in accordance with Commission on Human Rights Resolution 2000/10, 2001.
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E/CN.4/RES/2001/71: Human rights and bioethics, 2001.
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E/CN.4/RES/2001/25: The right to food.
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E/CN.4/RES/2001/33: Access to medication in the context of pandemics such as HIV/AIDS.
489
490
Literature
–
E/CN.4/2002/54: Globalization and its impact on the full enjoyment of human rights: Report of the High Commissioner for Human Rights submitted in accordance with Commission on Human Rights resolution 2001/32, 2002.
–
E/CN.4/2002/57: Report of the independent expert on the question of a draft optional protocol to the International Covenant on Economic, Social and Cultural Rights, 2002.
–
E/CN.4/2002/58: Report by Special Rapporteur on the Right to Food, submitted in accordance with Commission on Human Rights Resolution 2001/25, 2002
–
E/CN.4/RES/2002/25: The right to food.
–
E/CN.4/RES/2002/32: Access to medication in the context of pandemics such as HIV/AIDS.
–
E/CN.4/2003/54: Report by Special Rapporteur on the Right to Food, submitted in accordance with Commission on Human Rights Resolution 2002/25, 2003.
–
E/CN.4/RES/2003/25: The right to food.
–
E/CN.4/RES/2003/29: Access to medication in the context of pandemics such as HIV/AIDS, tuberculosis and malaria.
–
E/CN.4/2003/53 (with corrigendum 1 and 2): Report by Mr. Hatem Kotrane, independent expert on the question of a draft optional protocol to the International Covenant on Economic, Social and Cultural Rights, 2003.
–
E/CN.4/2004/44: Report of the open-ended working group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its first session, Document prepared to the 60th Session of the Commission on Human Rights, 2004.
–
E/CN.4/2004/10: Report by Special Rapporteur on the Right to Food, submitted in accordance with Commission on Human Rights Resolution 2003/25, 2003.
–
E/CN.4/RES/2004/19: The right to food.
–
E/CN.4/2005/47: Report by Special Rapporteur on the Right to Food, submitted in accordance with Commission on Human Rights Resolution 2004/10, 2004.
–
E/CN.4/2005/52: Report of the open-ended working group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its second session, Document prepared to the 61st Session of the Commission on Human Rights, 2005.
–
E/CN.4/RES/2005/23: Access to medication in the context of pandemics such as HIV/AIDS, tuberculosis and malaria.
–
E/CN.4/RES/2005/18: The right to food.
–
E/CN.4/RES/2005/19: Effects of economic reform policies and foreign debt on the full enjoyment of all human rights.
–
E/CN.4/RES/2005/23: Access to medication in the context of pandemics such as HIV/AIDS, tuberculosis and malaria.
Sub-Commission on the Promotion and Protection of Human Rights –
E/CN.4/Sub.2/1997/27: Report by the Secretary-General submitted pursuant to Sub-Commission resolution 1996/16, 1997.
–
2000a: E/CN.4/Sub.2/RES/2000/7: Intellectual property rights and human rights.
Literature
–
2000b: E/CN.4/Sub.2/2000/13 The realization of economic, social and cultural rights: Globalization and its impact on the full enjoyment of human rights. Preliminary report submitted by J. Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1999/8.
–
2001a: E/CN.4/Sub.2/RES/2001/21: Intellectual property and human rights.
–
2001b: E/CN.4/Sub.2/2001/12. Sub-Commission on the Promotion and Protection of Human Rights: Intellectual property rights and human rights, Report from the Secretary-General, (14 June 2001).
–
2001c: E/CN.4/Sub.2/2001/12. Sub-Commission on the Promotion and Protection of Human Rights: Intellectual Property Rights and Human Rights, Report from the Secretary-General, Addendum 1 (3 July 2001).
–
2001d: E/CN.4/Sub.2/2001/13: The Impact of the Agreement Trade-Related Aspects of Intellectual Property Rights on Human Rights, Report from the High Commissioner.
–
2002: E/CN.4/Sub.2/2002/41: Intellectual Property and Human Rights, Note by the secretariat.
Other UN sources –
1951: Yearbook of the International Law Commission 1951, Vol II, United Nations, New York.
–
1958: Yearbook of the International Law Commission 1958, Vol II, United Nations, New York (containing Fitzmaurice’s third report on the law of treaties).
–
1962: Yearbook of the International Law Commission 1962, Vol II, United Nations, New York.
–
1963: Yearbook of the International Law Commission 1963, Vol II, United Nations, New York.
–
1964: Yearbook of the International Law Commission 1964, Vol II, United Nations, New York.
–
1966: Yearbook of the International Law Commission 1966, Vol II, United Nations, New York.
–
1969: UN Conference on the Law of Treaties, Vol. I: First Session, Vienna, 26 March – 24 May 1968, Official Record. UN Publications E68 v. 7, United Nations, New York.
–
1970: UN Conference on the Law of Treaties,Vol. II: Second Session, Vienna, 9 April – 22 May 1969, Official Record. UN Publications E70 v. 6, United Nations, New York.
–
1971: UN Conference on the Law of Treaties, Vol. III: First and Second Sessions, Vienna, 26 March – 24 May 1968 and 9 April – 22 May 1969, (Draft Articles of the Law of Treaties with Commentaries and the Final Act) Official Record. UN Publications E70 v. 5, United Nations, New York.
–
1985: Yearbook of the International Law Commission 1985, Vol II, United Nations, New York.
–
2001: Road map towards the implementation of the United Nations Millennium Declaration, Report of the Secretary-General, UN Document A/56/326, 6 September 2001.
High Commissioner’s Expert Group on Human Rights and Biotechnology 2002: Human Rights and Biotechnology, Office of the High Commissioner for Human Rights, Geneva. UN Centre for Human Settlements 1996: Expert Group Meeting on the Human Right to Adequate Housing, Geneva 18 – 19 January 1996 Annex II; at <www.unhabitat.org/programmes/housingrights/documents/HS.C.16.2.Add.2.htm>. UNESCO 2002: Preliminary Report on the Possibility of Elaborating a Universal Instrument on Bioethics’, presented by the Working Group of the IBC (International Bioethics Council) (SHS/EST/02/CIB-9/5), 15 November 2002.
491
492
Literature
UNAIDS/OHCHR 2003: HIV/AIDS and Human Rights-International Guidelines, UNAIDS/ 02.49E.
World Trade Organization (and GATT) Uruguay Round negotiations GATT 1986: Ministerial Declaration from Punta del Este, No 86-1572 20 September 1986; Part 1: Negotiations on Trade in Goods. –
1988a: Communication from Thailand, MTN.GNG/NG11/W/27, 21 September 1988.
–
1988b: Communication from Mexico, MTN.GNG/NG11/W/28, 19 October 1988.
–
1988c: Communication from Brazil, MTN.GNG/NG11/W/30, 31 October 1988.
–
1989a: Trade Negotiations Committee, Mid-term Review of the Uruguay Round: Trade-related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods, MTN.TNC/11.
–
1989b: Communication from India, MTN.GNG/NG11/W/37, 10 July 1989.
–
1990a: Communication from the European Communities, MTN.GNG/NG11/W/68, 29 March 1990.
–
1990b: Communication from USA, MTN.GNG/NG11/W/70, 11 May 1990.
–
1990c: Communication from Argentina, Brazil, Chile, China, Colombia, Cuba, Egypt, India, Nigeria, Pakistan, Peru, Tanzania, Uruguay and Zimbabwe, Annex 1, MTN/GNG/NG11/ W/71, 14 May 1990.
–
1990d: Status of Work in the Negotiating Group, Chairman’s Report to the GNG MTN.GNG/ NG11/W/76, 23 July 1990.
–
1990e: Agreement on Trade Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods, part of Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, GATT doc. MTN.TNC/W/35/Rev.1, 3 December 1990.
–
1994: Marrakesh Agreement Establishing the World Trade Organization, 1867 U.N.T.S. 3; entered into force 1 January 1995, with Annexes.
WTO Ministerial Conferences, General Council and TRIPS Council decisions WTO 1996: Singapore Ministerial Declaration, WT/MIN(96)DEC, 13 December 1996. –
2001: Proposal: Draft Ministerial Declaration: Proposal from a Group of Developing Countries, IP/C/W/312, 4 October 2001.
–
2001: Doha Ministerial Declaration, WT/MIN(01)/DEC/W/1, 14 November 2001.
–
2001: Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/W/2, 14 November 2001.
–
2003: Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (WT/L/540), 30 August 2003.
–
2005a: Decision to Extend the Transition Period Under Article 66.1 for Least-Developed Country Members, 29 November 2005; see: <www.wto.int/english/news_ e/pres05_e/pr424_e.htm>.
–
2005b: Protocol Amending the TRIPS Agreement, WT/L/641, 6 December 2005
Literature
WTO Books World Trade Organization 2003: World Trade Report, WTO, Geneva, Switzerland.
GATT / WTO Disputes BISD 30S/107: United States – Import of Certain Automotive Spring Assemblies, 26 May 1983. BISD 37S/200: Thailand – Cigarettes, 7 November 1990. BISD 41S/131: United States - Tobacco, 4 October 1994. US – Tuna (GATT Doc. DS 29/R, 16 June 1994 [not adopted]). WT/DS2/R US – Gasoline, Report of the Panel, 29 January 1996. WT/DS2/AB/R US – Gasoline, Report of the Appellate Body, 29 April 1996. WT/DS8/AB/R: Japan - Taxes on Alcoholic Beverages (brought by EC) [parallel cases: WT/DS10/AB/R (brought by Canada); WT/DS11/AB/R (brought by US)], Report of the Appellate Body, 4 October 1996. WT/DS26/AB/R: EC – Hormones (brought by US) [parallel case: WT/DS48/AB/R (brought by Canada)], Report of the Appellate Body, 16 January 1998. WT/DS27/AB/R: EC – Bananas, Report of the Appellate Body, 9 September 1997. WT/DS/33/AB/R: US – Shirts and Blouses, Report of the Appellate Body, 25 April 1997. WT/DS50/R: India – Patents, Report of the Panel, 5 September 1997. WT/DS58/R: US – Shrimps, Report of the Panel, 15 May 1998. WT/DS58/AB/R: US – Shrimps, Report of the Appellate Body, 12 October 1998. WT/DS58/RW: US – Shrimp, Recourse to Article 21.5 by Malaysia, 15 June 2001. WT/DS55/R: Indonesia – Automobiles [parallel cases: WT/DS54/R (brought by EC); WT/DS59/R (brought by US); WT/DS64/R (brought by Japan)], Report of the Panel, 2 July 1998. WT/D60/AB/R: Guatemala – Cement, Report of the Appellate Body, 2 November 1998. WT/DS62/AB/R: EC – Computer Equipment, Report of the Appellate Body, 26 June 1998. WT/DS76/AB/R: Japan – Varietals, Report of the Appellate Body, 22 February 1999. WT/DS90/R: India – Quantitative restrictions, Report of the Panel, 6 April 1999. WT/DS108/ARB: US – Foreign Sales Corporations, Decision of the Arbitrator, 30 August 2002. WT/DS114/R: Canada – Pharmaceuticals, Report of the Panel, 17 March 2000. WT/DS135/R: EC – Asbestos, Report of the Panel, 18 September 2000. WT/DS135/AB/R: EC – Asbestos, Report of the Appellate Body, 12 March 2001. WT/DS136/AB/R: United States — Anti-Dumping Act of 1916, Report of the Appellate Body, 28 August 2001. WT/DS152/R: US – Section 301-310, Report of the Panel, 22 December 1999. WT/161/AB/R: Korea – Beef (brought by US) [parallel case: WT/DS169/AB/R (brought by Australia)], Report of the Appellate Body, 11 December 2000. WT/DS163/R: Korea – Government Procurement, Report of the Panel, 1 May 2000. WT/DS/176/R: United States – Section 211, Report of the Panel, 6 August 2001. WT/DS/176/AB/R: United States – Section 211, Report of the Appellate Body, 2 January 2002.
493
494
Literature
WT/DS184/AB/R: US – Hot rolled steel, Report of the Appellate Body, 24 July 2001. WT/DS202/AB/R, US – Line Pipe, Report of the Appellate Body, 15 February 2002. WT/DS246/R: EC – Tariff preferences, Report of the Panel, 1 December 2003. WT/DS246/AB/R: EC – Tariff preferences, Report of the Appellate Body, 7 April 2004. WT/DS267/R: US – Cotton, Report of the Panel, 8 September 2004.
Documents relating to Article 27.3(b), including traditional knowledge and CBD WT/CTE/W/8: TRIPS and Environment, 8 June 1995. WT/GC/W/302: Preparations for the 1999 Ministerial Conference - The TRIPS Agreement, Communication from Kenya on Behalf of the African Group, 6 August 1999. IP/C/W/254: Review of the Provisions of Article 27.3(b) of the TRIPS Agreement, Communication from the European Communities and their member States, 13 June 2001. IP/C/W/273: Review of the Provisions of Article 27.3(b) - Illustrative List of Questions, Prepared by the Secretariat, 5 June 2001. IP/C/W/280: The Relationship between the Provisions of the TRIPS Agreement and Access to Medicines, Communication from the European Communities and their Member States, 12 June 2001. IP/C/W/356: The Relationship between the TRIPS Agreement and the Convention on Biologicial Diversity and the Protection of Traditional Knowledge, Communication from Brazil on behalf of a group of developing countries, 24 June 2002. IP/C/W/349: Non-Violation and Situation Complaints, Note by the Secretariat, 19 June 2002. IP//C/W/368: The Relationship Between the TRIPS Agreement and the Convention on Biological Diversity, Summary of Issues Raised and Points made: Note by the Secretariat, 8 August 2002. IP//C/W/369: Review of the Provisions of Article 27.3(b), Summary of Issues Raised and Points made: Note by the Secretariat, 8 August 2002. IP//C/W/370: The Protection of Traditional Knowledge and Folklore, Summary of Issues Raised and Points made: Note by the Secretariat, 8 August 2002. IP/C/W/273/Rev.1: Review of the Provisions of Article 27.3(b) - Illustrative List of Questions, Prepared by the Secretariat, 18 February 2003. IP/C/W/383: Review of Article 27.3(b) of the TRIPS Agreement, the Relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD), and the Protection of Traditional Knowledge and Folklore: A concept paper’, Communication from the European Communities and their member States, 17 October 2002. IP/C/W/400/Rev.1: Article 27.3(b), the Relationship between the TRIPS Agreement and the Convention on Biological Diversity, and the Protection of Traditional Knowledge, Communication from Switzerland, 18 June 2003. IP/C/W/403: The Relationship Between TRIPS and CBD and the Protection of Traditional Knowledge, Communication from Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, India, Peru, Thailand, Venezuela, 24 June 2003. IP/C/W/404: Taking Forward the Review of Article 27.3(b) of the TRIPS Agreement, Joint Communication from the African Group, 26 June 2003.
Literature
IP/C/W/429: Elements of the Obligation to Disclose the Source and Country of Origin of Biological Resources and/or Tradtitional Knowledge used in an Invention, Communication from Brazil, India, Pakistan, Peru, Thailand, Venezuela (later joined by Bolivia, Colombia, Cuba and Ecuador), 21 September 2004. IP/C/W/434: Article 27.3(b), the Relationship between the TRIPS Agreement and the CBD and the Protection of Traditional Knowledge and Folklore, Communication from USA, 26 November 2004. IP/C/W/438: The Relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD) and the Protection of Traditional Knowledge – Elements of the Obligation to Disclose Evidence of Prior Informed Consent under the Relevant National Regime, Submission from Bolivia, Brazil, Cuba, Ecuador, India, Pakistan, Peru, Thailand and Venezuela, 10 December 2004. IP/C/W/442: The Relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD) and the Protection of Traditional Knowledge – Elements of the Obligation to Disclose Evidence of Benefit-Sharing under the Relevant National Regime, Submission from Bolivia, Brazil, Cuba, Ecuador, India, Pakistan, Peru, Thailand and Venezuela, 18 March 2005. IP/C/W/473: The Relationship between the TRIPS Agreement, the Convention on Biological Diversity and the protection of traditional knowledge – Amending the TRIPS Agreement to Introduce an Obligation to Disclose the Origin of Genetic Resources and Traditional Knowledge in Patent Applications, Communication from Norway, 14 June 2006.
Other WTO documents WTO secretariat: WTO briefing: Environment: CTE Agenda Part 1: trade rules, environmental agreements and disputes <www.wto.org/english/tratop_e/envir_e/cte01_e.htm>. –
2000: Protection of Intellectual Property under the TRIPS Agreement, Paper presented for the Day of General Discussion on ”The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”, Committee on Economic, Social and Cultural Rights, 27 November 2000 (E/C.12/2000/18).
G/AG/NG/W/36/Rev.1: Note on Non-Trade Concerns, 9 November 2000. WT/CTE/W/203: GATT/WTO Dispute Settlement Practice Relating to GATT Article XX, Paragraphs (b), (d) and (g) – Note by the Secretariat, 8 March 2002. WT/COMTD/W/77: Implementation of Special and Differential Treatment, Note by the Secretariat, 25 October 2000. IP/Q3/USA/1: Review of Legislation in the Field of Patents, Layout-Designs (Topographies) of Integrated Circuits, Protection of Undisclosed Information and Control of Anti-Competitive Practices in Contractual Licences, United States, 1 May 1998. IP/C/M/35: Council for Trade-Related Aspects of Intellectual Property Rights – Minutes of Meeting 5 – 7 March 2002, 22 March 2002. IP/C/M/40: Council for Trade-Related Aspects of Intellectual Property Rights – Minutes of Meeting 4 - 5 June 2003, 22 August 2003. IP/C/M/42: Council for Trade-Related Aspects of Intellectual Property Rights – Minutes of Meeting 18 November 2003, 4 February 2004.
495
496
Literature
IP/C/M/49 Council for Trade-Related Aspects of Intellectual Property Rights – Minutes of Meeting 25-26 and 28 October, 29 November and 6 December, 31 January 2006. WT/TPR/M/75 Minutes of meetings of 30 October and 1 November 2004: Brazil, 6 December 2000. WT/TPR/M/128: Minutes of meetings of 3 and 5 April 2004: Sri Lanka, 16 April 2004. WT/TPR/M/128, Add.1: Minutes of meetings of 3 and 5 April 2004: Sri Lanka (advance) written questions and responses), 16 April 2004. WT/TPR/S/140: Minutes of meetings of 29 November and 1 December 2004: Brazil, 24 January 2005. WT/TPR/M/140: Trade Policy Review: Brazil: Report by the Secretariat, 1 November 2004.
Food and Agricultural Organization & CGIAR Books FAO 1998a: Basic Texts of the Food and Agriculture Organization of the United Nations, Volume I, FAO, Rome. –
1998b: The Right to Food in Theory and Practice, FAO, Rome.
–
1998c: State of the World’s Plant Genetic Resources, FAO, Rome
–
1999a: FAO Legal Studies No 68: Extracts from international and regional instruments and declarations, and other authoritative texts addressing the right to food, FAO, Rome
–
2001a: Glossary of biotechnology for food and agriculture, FAO Research and Technology Paper 9, FAO, Rome.
–
2003a: FAO Legal Studies No 77: The right to adequate food in emergencies, FAO, Rome.
–
2004a: State of Food and Agriculture 2003-04, FAO, Rome.
Resolutions and declarations FAO 1989a: Agreed Understanding of the International Undertaking, Resolution 4/89, Adopted at the 25th Session of the FAO Conference. –
1989b: Farmers’ Rights, Resolution 5/89: Adopted at the 25th Session of the FAO Conference.
–
1991: Resolution 3/91, Adopted at the 26th Session of the FAO Conference.
–
1996a: Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture, adopted at the 4th International Technical Conference on Plant Genetic Resources, Leipzig.
–
1996b: Rome Declaration on World Food Security and World Food Summit Plan of Action, WFS 96/REP and WFS 96/REP, Annex.
–
1999b: Biosafety Issues Related to Biotechnologies for Sustainable Agriculture and Food Security, FAO Fact Sheet No. 8. Prepared for the 3rd WTO Ministerial Conference, Seattle, 28 November - 3 December 1999.
–
1999c: Biotechnology (Item 7 of the Provisional Agenda) Committee on Agriculture’s 15th Session, Rome, 25-29 January 1999, Document COAG/99/8.
–
2000: FAO Statement on Biotechnology, 2000 .
Literature
–
2001b: Potential impacts of genetic use restriction technologies (GURTs) on Agricultural Biodiversity and Agricultural Production Systems, Working Group on Plant Genetic Resources for Food and Agriculture, Commission on Genetic Resources for Food and Agriculture, CGRFA/WG-PGR-1/01/7.
–
2002a: Report of the International Network of ex situ Collections under the auspices of FAO, Commission on Genetic Resources for Food and Agriculture CGRFA-9/02/11.
–
2002b: Report on the International Network of Ex Situ Collections under the Auspices of FAO: Further Information Provided by the International Centre for Tropical Research (CIAT) regarding its Request for a Re-examination of US Patent No. 5.894.079, Commission on Genetic Resources for Food and Agriculture, CGRFA-0/02/Inf.7.
–
2002c: Renewal of the Agreements between the International Agricultural Research Centers of the CGIAR and FAO and Draft Revised Material Transfer Agreement, Commission on Genetic Resources for Food and Agriculture, CGRFA-9/02/20.
–
2002d: Declaration of the World Food Summit: five years later.
–
2002e: Report from the 28th session of the Committee on Food Security, (presented for the 123rd session of the FAO Council in 2002 as L123/10), FAO 2002d.
–
2002f: Potential Impacts of Genetic Use Restriction Technologies (GURTs) on Agricultural Biodiversity and Agricultural Production Systems: Technical Study, Commission on Genetic Resources for Food and Agriculture, CGRFA-9/02/17, Annex, Rev.1.
–
2003: Report on the First Session of the Intergovernmental Working Group for the elaboration of a set of voluntary guidelines to support the progressive realization of the right to adequate food in the context of national food security, prepared for the 29th Session of the Committee on Food Security, CFS:2003/4.
–
2004b: Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, adopted at the 127th Session of the FAO Council, Rome, 22 to 27 November 2004 as CL 127/10-Sup.1.
–
2004c: Report on the Outcome of the Expert Group on the Terms of the Standard Material Transfer Agreement, CGRFA/IC/MTA-1/04/REP.
–
2004d: Second meeting of the Commission on Genetic Resources for Food and Agriculture acting as the Interim Committee for the International Treaty on Plant Genetic Resources for Food and Agriculture, CGRFA-MIC-2/04/REP.
–
2006: Report of the Governing Body of the International Treaty on Plant Genetic Resources for Food and Agriculture, first session 12-16 June 2006, IT/GB-1/06/Report.
Documents on the FAO-CGIAR cooperation FAO 1994: The Agreement Between the […] (CGIAR centre) and the Food and Agricultural Organization of the United Nations (FAO) Placing Collections of Plant Germplasm under the Auspices of FAO. CGIAR 1997: Strengthening CGIAR-Private Sector Partnerships in Biotechnology (MTM 97/10), 30 April 1997. –
1998a: Press Release of February 11, 1998: “GCIAR Halt to Granting of Intellectual Property Rights for Designated Plant Germplasm”.
497
498
Literature
–
1998b: Report of the Third System-Wide Review of the Consultative Group on International Agricultural Research (CGIAR), CGIAR System Review Secretariat, Washington D.C. (Presented to the International Centers Week as Document ICW/98/06).
–
1998c: Summary of Proceedings and Discussions from the CGIAR International Centers Week, 26-30 October 1998, CGIAR Secretariat, Washington D.C..
–
1998d: Mobilizing Science for Global Fod Security, Report of the CGIAR Panel on Proprietary Science and Technology, Prepared for the Mid-Term Meeting, May 25-29 1998, Doc. No. SDR/ TAC:IAR/98/7.1.
–
1999: CGIAR Center Statements on Genetic Resources Intellectual Property Rights and Biotechnology, CGIAR, Washington D.C..
–
2000a: System-wide Review of Plant Breeding Methodologies in the CGIAR, Report by the Technical Advisory Committee, SDR/TAC:IAR/00/18.
–
2000b: Summary of proceedings from the CGIAR International Centers Week in 2000, 23-27 October 2000, CGIAR Secretariat, Washington D.C..
–
2000c: 11th meeting of the GRPC 6-8 September 2000: Report to CGIAR International Week, ICW/00/09, Annex 3.
SGRP (System-wide Genetic Resource Programme) 2001: Booklet of CGIAR Centre Policy Instruments, Guidelines and Statements on Genetic Resources, Biotechnology and Intellectual Property Rights, SGRP and CGIAR Genetic Resources Policy Committee, Rome. FAO 2002g: Consulations with the International Agricultural Research Centers of the CGIAR and other Relevant International Institutions on the Agreements to be Signed with the Governing Body of the International Treaty on Plant Genetic Resources for Food and Agriculture, (including the ‘Draft Agreement between [Name of Centre] and the Food and Agricultural Organization of the United Nations (FAO), acting on behalf of the Governing Body of the International Treaty on Plant Genetic Resources for Food and Agriculture’), CGRFA/MIC1/02/8. ISNAR (International Service for National Agricultural Research) 2002b: Press release from the host of CAS, ISNAR ‘Intellectual Property Rights: Facilitating the exchange of knowledge and experiences’, August 2002. –
2002a: Revised 2003-2004 Plan of Work for CAS, Attached to the Summary report of the 4th CAS meeting 10- 12 October 2002; see: .
IPGRI (International Plant Genetic Resources Institute) 1999: Key Questions for Decision-Makers: Protection of Plant Varieties under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, Decision Tools, IPGRI, Rome. –
2002: IPGRI’s Genetic Resources Policy Strategy (Revised July 2002), presented for the 19th Board Meeting, 11 – 15 March, Paper 9.5.1, IPGRI, Rome.
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IPGRI Policy on Intellectual Property; see: <www.ipgri.cgiar.org/policy/ipgripol.htm>.
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CIMMYT (International Maize and Wheat Improvement Center) Policy on Intellectual Property; see: <www.cimmyt.org/Resources/Obtaining_seed/IP_policy/htm/IP-Policy_Eng. htm>.
Literature
World Intellectual Property Organization & UPOV Treaties Paris Convention for the Protection of Industrial Property, of 20 March 1883, as revised 14 July 1967, 828 UNTS 305. Berne Convention for the Protection of Literary and Artistic Work, of 9 September 1886, asrevised 24 July 1971, 828 UNTS 221. Madrid Agreement for the Repression of False and Deceptive Indications of Source on Goods, of 15 June 1892, as revised 14 July 1967, 828 UNTS 163. Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, of 31 October 1958, as revised 14 July 1967 and amended 28 September 1979, 923 UNTS 189. Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, of 28 April 1977, as amended 26 September 1980, 1861 UNTS 361. Patent Law Treaty adopted 1 June 2000, 39 ILM 1047 (entered into force 28 August 2005).
WIPO publications WIPO 1975: Agreement between the United Nations and the WIPO, WIPO Publication No. 111, WIPO, Geneva. –
1990: Report on the Committee of Experts on the Interface between Patent Protection and Plant Breeders’ Rights, WIPO/UPOV/CE/1/4, WIPO, Geneva.
–
1999: Intellectual Property and Human Rights, Proceedings of a panel to commemorate the 50th Anniversary of the Proclamation of the Universal Declaration of Human Human Rights, WIPO Publication No. 762(E).
–
2003e: Draft Substantive Patent Law Treaty, Standing Committee on the Law of Patents, Tenth Session, 10-14 May 2004, SCP/10/2, of 30 September 2003.
Intergovernmental Committee on Traditional Knowledge, Genetic Resources and Folklore WIPO 2000: Matters Concerning Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Twenty-sixth (16th Extraordinary) Session, Geneva September 25 to October 3, WIPO/GA/26/6, 25 August 2000. –
2001: Survey on Existing Forms of Intellectual Property Protection for Traditional Knowledge – Preliminary Analysis and Conclusions, document prepared by the secretariat, WIPO/ GRTKF/IC/2/9, 3 December 2001.
–
2002a: Review of Existing Intellectual Property Protection of Traditional Knowledge, document prepared by the secretariat, WIPO/GRTKF/IC/3/7, 26 May 2002.
–
2002b: Elements of a Sui Generis System for the Protection of Traditional Knowledge, document prepared by the secretariat, WIPO/GRTKF/IC/3/8, 29 March 2002.
–
2002c: Elements of a Sui Generis System for the Protection of Traditional Knowledge, document prepared by the secretariat, WIPO/GRTKF/IC/4/8, 30 September 2002.
499
500
Literature
–
2003a: Consolidated Survey of Intellectual Property Protection of Traditional Knowledge, document prepared by the secretariat, WIPO/GRTKF/IC/5/7, 4 April 2003.
–
2003b: Matters Concerning the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, document prepared for the 30th General Assembly of WIPO, WO/GA/30/5, 15 August 2003.
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2003c: Convention on Biological Diversity: Disclosure Requirements Concerning Genetic Resources and Traditional Knowledge, document prepared for the 30th General Assembly of WIPO, WO/GA/30/7, 15 August 2003.
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2003d: Thirtieth (16th Ordinary) Session, Geneva September 22 to October 1, Report adopted by the Assembly (WO/GA/30/8), 1 October 2003.
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2003e: Questionnaire on databases and registries related to traditional knowledge and genetic resources, WIPO/GRTKF/IC/Q.4, Annex B, February 2003.
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2004a Protecting Traditional Knowledge: Overview of Policy Objectives and core Principles, WIPO/GRTKF/IC/7/5, with Annexes, 20 August 2004.
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2004b: The Protection of Traditional Knowledge: Outline of Policy Options and Legal Elements, WIPO/GRTKF/IC/7/6, with Annexes, 27 August 2004.
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2004c: Genetic Resources: Draft Intellectual Property Guidelines for Access and Equitable Benefit-Sharing, WIPO/GRTKF/IC/7/9, with Annex, 30 July 2004.
–
2005a: The Protection of Traditional Knowledge: Revised Objectives and Principles WIPO/ GRTKF/IC/8/5, with Annex, 8 April 2005.
–
2005b: Thirty-second (17th Ordinary) Session, Geneva September 26 to October 5, Report adopted by the Assembly (WO/GA/32/13), 5 October 2005.
UPOV 1978 Act of the UPOV Convention. 1991 Act of the UPOV Convention. UPOV 2002: TG/1/3: ”General Introduction to the Examination of Distinctness, Uniformity and Stability and the Development of Harmonized Descriptions of New Varieties of Plants” (19 April 2002). UPOV 2003a: Memorandum Prepared by the Office of UPOV on the Genetic Use Restriction Technology, Original version 10 January 2003, presented to the UPOVAdminstrative and Legal Committee as CAJ/47/7 Annex 1 of 31 March (subsequently replaced by CAJ/47/7/ Rev). –
2003b: Position of the Union for the Protection of the New Varieties of Plants Concerning Decision VI/5 of the Conference of the Parties to the Convention on Biological Diversity (CBD), 11 April 2003, with Annexes (replacing CAJ/47/7).
UNEP & Convention on Biological Diversity The Interrelationship Between the Convention on Biological Diversity and Sustainable Agriculture, Resolution 3 of the Nairobi Final Act on the Adoption of the Convention on Biological Diversity, UNEP 1992. Implementation of Article 8(j) and related provisions, UNEP/CBD/COP/IV/9, UNEP 1998.
Literature
Consequences of the use of the new technology for the control of plant gene expression for the conservation and sustainable use of biological diversity: note by the Executive Secretary, UNEP/CBD/ SBSTTA/4/9/REV.1, 17 May 1999, (prepared for the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) Fourth meeting, 21-25 June 1999), UNEP 1999. Agricultural biological diversity: review of phase I of the programme of work and adoption of a multi-year work programme, UNEP/CBD/COP/V/5, UNEP 2000. Agricultural biological diversity, UNEP/CBD/COP/VI/5, UNEP 2002a. Access and benefit-sharing as related to genetic resources, UNEP/CBD/COP/VI/24, UNEP 2002b. Guiding Principles for the Prevention, Introduction and Mitigation of Impacts of Alien Species that Threaten Ecosystems, Habitats or Species, UNEP/CBD/COP/VI/23, UNEP 2002c. Position of the Union for the Protection of the New Varieties of Plants Concerning Decision VI/5 of the Conference of the Parties to the Convention on Biological Diversity (CBD), issued 11 April 2003 (This is the second version; the original version presented to the CBD Ad Hoc Technical Expert Group meeting on the potential impacts of genetic use restriction technologies on smallholder farmers, indigenous and local communities and farmers’ rights, Montreal 19 to 21 February 2003 was later withdrawn by UPOV) UNEP 2003. Alien species that threaten ecosystems, habitats or species (Article 8 (h)), UNEP/CBD/COP/VII-13, UNEP 2004. Advice on the report of the Ad Hoc Technical Expert Group on the Genetic Use Restriction Technologies, UNEP/CBD/SBSTTA/10/15, UNEP 2005.
Other Treaties, Directives, Regulations & Legislations Andean Community Decision No. 486: Common Intellectual Property Regime, 14 September 2000. OAPI (Organisation Africaine de la Propriété) Accord de Bangui de 1977. Organization for African Unity: African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5; 21 I.L.M. 58 (1982), entered into force 21 October 1986. –
African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, Model Legislation 101, originally adopted at the 68th Ordinary Session of the Council of Ministers of the OAU in 1998, final version adopted 2000.
Brazilian Industrial Property Law, Law No. 9.279, 14 May 1996. Council of Europe: European Social Charter, adopted 18 Ocober 1961, 529 U.N.T.S. 89, entered into force 26 February 1965. European Communities: Council Regulation No. 2100/94 on Community Plant Variety Rights, amended by Council Regulation 2506/95, 25 October 1995 NO. L 258, 28/10/95, 0003-0004. –
Council Regulation (EEC) No. 1765/92 establishing a support system for producers of certain arable crops OJ L 181, 1.7.1992; Bull. 6-1992 Replaced by Council Regulation (EC) No 1251/1999, 17 May 1999.
–
EC Commission Directive 98/44/EC on the legal protection of biotechnological inventions, 6 July 1998.
European Patent Organization: Convention on the Grant of European Patents (European Patent Convention), of 5 October 1973, as amended.
501
502
Literature
Organization of American States: American Declaration of the Rights and Duties of Man, Resolution XXX [30], adopted by the Ninth International Conference of American States, 1948. –
American Convention on Human Rights, adopted 22 November 1969, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force 18 July 1978.
–
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, adopted 17 November 1988, O.A.S. Treaty Series No. 69 (1988), entered into force 16 November 1999.
United States: US Patent Act, 35 United States Code Section 101-110 (‘Patentability of Inventions’), Section 200-212 (‘Patent Rights in Inventions made with Federal Assistance’ (Bayh-Dole Act)) and Section 301 (‘Citation of prior art’). –
US Plant Patent Act, 35 United States Code Section 161
–
US Plant Variety Protection Act, as amended (7 United States Code Section 2321 et seq.).
Brazil: Decree 2366 on Plant Variety Protection, 5 November 1997. India: Protection of Plant Varieties and Farmers’ Rights Act 2001, No. 53, 29 August 2001. India Patents (Amendment) Act 2005, No. 15, 4 April 2005. Panama: Executive Decree No. 13, 19 March 1999, Regulating Title V of Law 23 of 15 July 1997. Portugal: Portugese Decree Law No. 118/2002, 20 April 2002. England: Statute of Monopolies, 1623.
Index
A
Accessibility╇ 11, 67, 164, 165, 375, 391, 409, 410, 415, 417, 438 Food╇ 16, 120, 137, 138, 139, 142, 144, 147, 166, 276, 376, 384, 390, 394, 395, 397, 409, 412, 413, 414, 416, 439 African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources╇ 45, 267, 271, 274, 278, 279, 280, 281, 282, 283, 284, 285, 286, 383 African Union╇ 267 Alston, Philip╇ 4, 9, 27, 57, 90, 92, 94, 98, 105, 106, 113, 119, 130, 142, 154, 157, 159, 205, 207, 209, 290, 393, 405, 408, 413, 414, 418, 456, 480, 482 Authors’ rights╇ 8, 97, 372 right to benefit from moral and material interests (Article 15.1(c) of the ICESCR╇ 51, 87, 100, 117, 169-204, 211, 377, 439 General Comment No. 17╇ 17, 171, 179, 181, 183, 184, 188, 191, 192, 294, 439 Statement╇ 178 Availability╇ 11, 165, 167, 249, 272, 390, 392, 394, 395, 403, 408, 410 Food╇ 18, 120, 132, 142, 147, 166, 197, 376, 384, 390, 397, 416
B
Blakeney, Michael╇ 7, 10, 27, 34, 223, 432
C
Charter of the United Nations╇ 64-65, 98, 104, 122, 123, 146, 157, 159, 308, 330, 333, 334, 346, 347,348, 349, 349
Consultative Group on International Agricultural Research (CGIAR)╇ 5, 9, 18, 22, 23, 26, 27, 44, 45, 46, 48, 50, 116, 133, 139, 156, 157, 158-167, 190, 261, 272, 273, 287, 334, 343, 377, 382, 386, 397, 400, 408, 410, 411, 421, 425, 426, 427, 429, 443 intellectual property rights╇ 23, 428, 430 mission╇ 23, 158-167, 427, 429 Science Council╇ 24, 26, 156 Convention on Biological Diversity (CBD)╇ 3, 4, 8, 11, 20, 26, 34, 133, 323, 343, 377, 385, 397, 401, 438 Article 8j╇ 48, 187, 426, 500 Biological resources╇ 44, 120, 133, 416, 423, 424, 443 Correa, Carlos╇ 229, 248, 249, 270, 273, 399, 407, 460-461, 478, 482,
D
Deprived of means of subsistence╇ 16, 44, 150, 346, 398, 399, 412, 413, 414, 415, 417 Derogation╇ 108, 345, 354 of human rights╇ 87, 108, 125, 206, 209, 210, 345, 354, 439 Destruction of human rights╇ 209, 210 of infringing goods╇ 252, 253, 390, 391, 392 Discrimination╇ 8, 57, 60, 63, 70, 73, 78, 83, 108, 112, 113, 136, 143, 144, 149, 209, 216, 217, 224, 237, 275, 282, 315, 345, 353, 357, 358, 393, 397, 399, 403, 425 Article 2.2 of the International Covenant on Economic, Social and Cultural Rights╇ 92, 100-103, 110, 341, 346, 374375 Article XX of GATT 1994╇ 75, 315
504
Index
Dispute Settlement (see World Trade Organisation)╇ 52, 60, 62, 73, 74, 75, 78, 80, 82, 83, 84, 215, 216, 218-221, 224, 227, 228, 237, 242, 246, 248, 265, 275, 284, 287, 290, 292, 295, 303-334, 337, 339, 357, 358, 359, 367, 400, 402, 441 Body (DSB)╇ 61, 73, 74, 80, 319, 332 Understanding╇ (DSU)╇ 61, 74, 78-79, 80, 81, 218, 303, 304, 311, 312, 331, 332 Dutfield, Graham╇ 7, 25, 28, 34, 222, 235, 270, 383, 400, 401, 408, 422-423, 457, 463, 474, 477 E Eide, Asbjørn╇ xi, 11, 13, 16, 18, 60, 66, 67, 69, 71, 72, 89, 90, 91, 92, 103, 109, 110, 112, 116, 119, 135, 136, 139, 141, 142, 143, 144, 147, 149, 151, 152, 155, 169, 183, 190, 191, 195, 196, 197, 200, 210, 295, 312, 339, 379, 381, 455, 464, 470, 471, 472, 474, 479, 480
F
Farmers’ rights╇ 47, 157, 270, 271, 272-274, 284, 286, 327, 328, 401, 437 Food and Agricultural Organisation (FAO)╇ 5, 8, 15, 18, 23, 27, 46, 48, 69, 116, 117, 118, 126, 128, 129, 132, 133, 1344, 142, 143, 148, 151, 156, 157, 162-168, 270, 272, 273, 294, 295, 312, 426, 427, 430, 448 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) 8, 11, 26, 51, 60, 133-134, 157, 163, 164, 165, 167, 186, 190, 271, 272, 273, 287, 334, 343, 381, 386, 396, 416, 426, 427, 429, 443, 485 Plant genetic resources╇ 4, 5, 8, 9, 18, 19, 21, 22, 24, 26, 38, 43, 45-50, 86, 134, 144, 161, 162, 163, 166, 167, 186, 263, 272, 273, 343, 400, 408, 418, 426, 427, 430 Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security╇ 17, 64, 69, 70, 123, 144, 151, 153, 157, 274, 310, 312, 497 World Food Summit╇ 27, 64, 69, 72, 115, 123, 151, 153, 161, 329 Food, right to╇ 7, 8, 9, 13-15, 115-168, 287-334, 372-373
General Comment No. 12 (UN Committee on Economic, Social and Cultural Rights) 13, 16, 17, 57, 60, 64, 66, 67, 68, 93, 95, 120, 121, 122, 123, 124, 126, 127, 129, 130, 131, 132, 136, 137, 138, 139, 141, 143, 144, 145, 147, 148, 149, 150, 153, 296, 298, 299, 311, 321, 328, 329, 339, 384, 394, 412, 420, 488, 489 Special Rapporteur (UN Commission on Human Rights)╇ 4, 63, 70, 71, 184, 296, 299, 300, 486, 487, 489, 490 Study adopted by the UN SubCommission on the Protection and Promotion of Human Rights╇ 273
G
Genetic resources╇ 4, 5, 8, 11, 45, 144, 159, 162, 164, 189, 190, 199, 274, 287, 344, 378, 385, 386, 396, 397, 401, 412, 415, 420, 423, 429, 443 biological╇ see Convention on Biological Diversity plant╇ see Food and Agricultural Organisation Genetic Use Restriction Technology╇ 48, 49, 234, 317, 500 Green Revolution╇ 21, 138, 139, 145, 411, 416
H
Human Rights Committee╇ 17, 64, 70, 124, 154, 157, 169, 211, 400, 412, 413, 414, 489
I
India╇ 79, 83, 105, 222, 231, 232, 316, 318, 322, 410, 413, 453 Protection of Plant Varieties and Farmers’ Rights Act╇ 272, 401 request of re-examination of turmeric patent (revoked by USPTO)╇ 6, 190 request of re-examination of neem patent (revoked by EPO, not by USPTO)╇ 6 request of re-examination of basmati patent╇ 413 Indigenous peoples╇ 25, 37, 40, 139, 144, 169, 186, 187, 188, 385, 386, 401, 414, 423 ILO 169╇ 187, 485 traditional knowledge╇ 8, 20, 21, 25, 34, 46, 149, 186, 187, 188, 197, 213, 218, 227, 231, 275, 287, 323, 378, 381, 396, 400, 401, 418, 422, 423, 424, 425, 426, 443
Index
International Court of Justice (ICJ)╇ 10, 58, 65, 71, 154, 248, 287, 289, 290, 304, 330-334, 347, 364, 440, 451-452 International Food Policy Research Institute (IFPRI)╇ xi, 24, 26, 158, 160, 428, 429 International Plant Genetic Resource Institute (IPGRI)╇ xi, 7, 147, 158, 161, 165, 428 International Treaty on Plant Genetic Resources for Food and Agriculture╇ see Food and Agricultural Organisation International Union for the Protection of New Varieties of Plants (UPOV)╇ 8, 10, 11, 20, 27, 30, 31, 34, 35, 46, 47, 48, 49, 50, 51, 84-86, 213, 238, 255-286, 324, 343, 380, 383, 384, 392, 395, 415, 439, 448 Genetic Use Restriction Technology╇ see Genetic Use Restriction Technology Plant breeders’ rights╇ 10, 20, 26, 27, 28, 30, 31, 35, 42, 45, 47, 49, 84-85, 145, 180, 199, 211, 238, 255, 257, 259, 260, 262, 263, 264, 266, 273, 279, 280, 282, 283, 284, 372, 373, 380, 383, 408, 410, 414, 420, 421, 433 Intertemporal law╇ 52, 53-56, 146
L
Locke, John╇ 39, 40, 41, 42, 43, 44, 471
M
Marceau, Gabrielle╇ 61, 82, 289, 290, 304, 306, 331, 339, 340, 349, 350, 471-472 Monsanto╇ 21, 23, 38, 39, 47, 48, 300, 387, 411, 419 patent on wheat and derived products (revoked by EPO)╇ 419 vs. Percy Schmeiser╇ 38, 46, 229, 238, 239, 240, 386, 387, 389
N
Nozick, Robert╇ 39, 41, 42, 43, 44, 474
O
Organisation Africaine de la Propriété (OAPI)╇ 248, 267, 501
P
Pauwelyn, Joost╇ 52, 53, 56, 61, 62, 77, 81, 237, 290, 335, 336, 337, 338, 340, 343, 344, 345, 349, 350, 351, 356, 357, 358, 360, 361, 365, 367, 368, 461, 475 Petersmann, Ernst-Ulrich╇ 62, 216, 218, 290, 313, 327, 340, 367, 415, 455, 456, 467, 476
S
Science╇ 3, 8, 15, 21, 22, 24, 32, 34, 47, 132, 133, 134, 135, 139, 145, 146, 149, 150, 158, 160, 164, 169, 170, 171, 189, 206, 374, 378, 381, 385, 417, 419, 420, 433 right to benefit from╇ 9, 117, 172, 176, 192203, 427, 429 report by UN Secretary-General╇ 486 Sustainability╇ 97, 120, 146, 147 natural resources╇ 148, 150 WTO Agreement preamble╇ 236, 309
T
Traditional knowledge╇ see Indigenous peoples
U
United Nations Environmental Programme (UNEP)╇ 46, 49, 396, 448, 500-501
W
Weeramantry, Christopher G.╇ 134, 137, 185, 364, 470, 483-484 World Bank╇ 4, 7, 10, 24, 94, 137, 156, 159, 160, 161, 162, 266, 280, 294, 410, 431, 484 World Food Summit╇ see FAO World Intellectual Property Organization (WIPO)╇ 8, 20, 25, 33, 34, 35, 48, 84, 186, 187, 188, 191, 202, 210, 213, 231, 270, 275, 286, 293, 294, 295, 306, 386, 400, 403, 424, 448 Draft Substantive Patent Law Treaty╇ 232, 378, 499 Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (GRTKF)╇ 25 Patent Cooperation Treaty (PCT)╇ 34 Patent Law Treaty (PLT)╇ 8, 34, 232, 247, 425 traditional knowledge╇ see Indigenous peoples World Trade Organization (WTO)╇ 73-83, 215-253, 303-326 Agreement on Agriculture╇ 130, 326, 329 Committee on Trade and Development╇ 326 Committee on Trade and Environment╇ 73, 303, 326, 351, 396 Council for TRIPS╇ 20, 188, 323 Dispute Settlement Body (DSB)╇ 61, 73, 74, 80, 319, 332
505
506
Index
EC – Tariff preferences (WT/DS246/AB/ R)╇ 81, 316, 318, 494 EC – Asbestos (WT/DS135/AB/R)╇ 237, 284, 315, 320, 493 US – Shrimps (WT/DS58/AB/R)╇ 54, 59, 83, 146, 309, 314, 315, 493 EC – Hormones (WT/DS26/AB/R / WT/ DS48/AB/R)╇ 78, 83, 319, 310, 401, 493 Dispute Settlement Understanding (DSU)╇ 61, 74, 78, 79, 80, 81, 218, 303, 304, 311, 312, 331, 332
Doha Declaration on TRIPS and Public Health╇ 57, 77, 83, 244, 250, 289, 290, 322-326, 438, 492 GATT 1994╇ 56, 75, 79, 219, 227, 237, 308, 309, 313, 314, 315, 358, 367, 368 Trade Policy Review Body╇ 74, 303, 326, 328-329 traditional knowledge╇ see Indigenous peoples
