The right to adequate food in international law
The right to food is a human right and is a binding obligation well-established under international law.
The Universal Declaration of Human Rights of 1948 first recognized the right to food as a human right. It was then incorporated in the International Covenant on Economic, Social and Cultural Rights (Article 11) adopted in 1966 and ratified by 156 states, which are today legally bound by its provisions. The most authoritative UN interpretation of the right to food in international law is contained in General Comment No. 12 of the Committee on Economic, Social and Cultural Rights (1999).
According to the UN Special Rapporteur on the Right to Food, the obligations of the International Covenant on Economic, Social and Cultural Rights apply both to the regulation of commercial seed systems and to the preservation and enhancement of informal or traditional farmers’ seed systems. This follows both from article 11 (2) (a), of the International Covenant, and from the right of everyone to enjoy the benefits of scientific progress and its applications, recognized in article 15 (1) (b), of the Covenant, which could be relied upon in order to justify recognizing a right of access of farmers to seeds which are not in open access.
But States also should ensure that informal, non-commercial seed systems can develop: They should not interfere with such systems without adequate justification; they should protect such systems from interference by third parties; and they should proactively ensure that these systems can expand, despite the pressure imposed by the commercial seed system. Only a balanced approach between these two sets of obligations will ensure that the farmers will be in a position to make a fully free and informed choice between them.
Impact assessment needed before accessing UPOV
- Most countries have been led to adopt UPOV-compliant domestic legislation, without taking into account the need of the countries concerned or, for instance, differentiating between crops. States should prepare right-to-food impact assessments in order to ensure that the IPRs which will be chosen will correspond to their development needs.
- The oligopolistic structure of the input providers market may result in poor farmers being deprived of access to seeds productive resources essential for their livelihoods and it could raise the price of food, thus making food less affordable for the poorest. States should consider using antitrust legislation.
- One means to restore an adequate balance between the right of plant breeders and the needs of farmers is by strengthening the protection of farmers’ rights under domestic and international law. This challenge can be met by actively involving farmers in the design and implementation of seed policies.
- IPRs reward and encourage standardisation and homogenity, when what should be rewarded is agrobiodiversity. (…) The strengthening of breeders rights in the 1991 UPOV Convention is also a concern in this regard.
In a pioneering research endeavor, a group of NGOs carried out a Human Rights Impact Assessment (HRIA) of stronger plant variety protection laws based on UPOV 1991. The Research reveals worrying results. The impact assessment of UPOV 1991 styled PVP laws provides convincing evidence of the threat to the right to food of small-scale farmers. Their widespread practice of freely saving, replanting, exchanging and selling seeds clashes with UPOV 1991 provisions, to the extent such seeds are “protected” by plant breeders’ rights. Consequently, plant variety protection in line with UPOV 91 will make it harder for small-scale farmers to access improved seeds, as shown by the case studies in Kenya, Peru and the Philippines. Access to seed, is a key feature of the Right to Food of small-scale farmers.
The Report warns governments that introduction of stringent plant variety protection based on UPOV 1991 restricts small-scale farmers’ access to seeds and puts their Right to Food at risk.
Further reading
Olivier De Schutter, UN Special Rapporteur on the Right to Food (2009): Seed policies and the right to food: enhancing agrobiodiversity and encouraging innovation