Genetic Resources, Equity and International Law

Abstract

This thesis examines the application of international law to the uses of agricultural crop plants termed plant genetic resources for food and agriculture. In particular, it asks the question, does international law regulate the use of plant genetic resources for food and agriculture so as to enable equity among nations in accessing these resources and sharing the benefits which arise from them?

In answering this question this thesis will also consider several related issues which have arisen in the course of the international debate on this topic. These resources are closely entwined with the lives and livelihoods of certain categories of peoples such as indigenous peoples and farmers and local communities. In addition, they are critical for the economies, agricultural systems and food security of nations. The thesis question will not be considered in the abstract, but will rather be placed against the background of these issues, which will be continuously used to put the legal discourse into perspective.

The legal analysis will focus on five international agreements which directly or indirectly regulate the use of crop plants. These five agreements are placed in two broad categories, i.e. environmental/conservation agreements and trade and property related agreements. The first category includes the Convention on Biological Diversity of 1992 and the International Treaty on Plant Genetic Resources for Food and Agriculture of the Food and Agriculture Organisation of 2001. The second category includes the Convention for the Protection of New Varieties of Plants of 1991, the Agreement on Trade Related Aspects of Intellectual Property Rights of 1994, and several treaties of the World Intellectual Property Organisation. In addition, since the topic raises issues of rights, certain human rights treaties and documents will also be used in the analysis.

The current international conflict over plant genetic resources can be condensed into one of rights, human rights and property rights. The international treaties cited above have all contextualized the issue within a framework of property rights, setting out mechanisms for different forms of legal control of these resources. This thesis will argue that whatever the form and nature of such property rights, they cannot achieve equity in the use of crop plants. Rather the use of such rights results in violations of human rights.