Introduction

The intersection of intellectual property and the human right to food raises contentious and unresolved issues of international law and politics. Analysis of these issues is made even more challenging by two distinct but related developments – (1) the diversity and complexity of the rules and institutions that regulate the creation, ownership, and exploitation of plant genetic resources (PGRs) for food and agriculture and of the biotechnologies used to manipulate them, and (2) the expansion, over the last quarter century, of the normative content of the human right to food and of intellectual property rights for plant-related innovations.

The first development – the diversity and complexity of the legal and institutional landscape – stems from the fact that the international rules governing PGRs and agrobiotechnologies include not only multilateral intellectual property agreements, the International Covenant on Economic Social and Cultural Rights (ICESCR), and customary human rights law, but also treaties, declarations, and resolutions adopted under the auspices of the World Trade Organization (WTO), the Food and Agriculture Organization (FAO), the Convention on Biological Diversity, the Commission on Genetic Resources for Food and Agriculture, and regional organizations such as the European and African Unions and the Andean Community. Scholars have labeled this dense thicket of overlapping rules and institutions as a “regime complex” for PGRs. And they have explained how the existence of multiple negotiating forums within the complex enable governments and public interest NGOs to shift from one venue to another and to select the venue most conducive to advancing their preferred legal and policy outcomes.