The food and agriculture organization and food security in the context of international intellectual property rights protection

Introduction The impact of intellectual property rights upon the issue of food security in the Global South exemplifies the fragmentation problem Martti Koskenniemi identified as emerging from the proliferation of different self-contained legal regimes within public international law. Whereas these legal regimes are coherent within themselves, their combined interaction creates incoherency within international law, which in some cases endangers the protection of human rights, as evident in the conflict emerging between the right to food and intellectual property law. Indeed, from inside the confines of the World Trade Organization (WTO) project, the rules of international trade law do not adequately account for the needs of rural smallholders and the rural poor in the Global South. Similarly, the rules of international intellectual property law, which are now largely covered within the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS), provide states parties with little scope to deny protection to intellectual property rights holders even where those rights imperil the attainment of vital social needs such as food security. The expansion of intellectual property rights into agriculture and the subsequent emergence of intellectual property rights within the WTO regime has aided large transnational agricultural companies and seed patenting companies as they move into agriculture business in the Global South. The effect of this shift has been to displace rural smallholders, to disrupt traditional agricultural practices and to change the whole structure of food production, all cumulatively exacerbating food insecurity. Increasingly, the Food and Agriculture Organization (FAO) has assumed the role of monitoring the food security problem, championing an approach encompassing both the right to food under international law and the notion of farmers’ rights to develop solutions to the crisis. There is certainly some measure of support at an international level for both the right to food and the concept of farmers’ rights. Indeed, the right to food appears to be well accepted within the international community. However, both the right to food and farmers’ rights exist within a broader international law framework that does not have the ability to interact in a meaningful way with those rules of international trade law that are contained in the TRIPS Agreement.