Table of Contents

Preface

Part I: Treaties Relating to Food and Protection of Biotechnology

1 Introduction

1.1 General outline

1.2 Structure of the Study

1.3 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 biotechnology

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 Means

3 Methodology: Principles and Sources under International Law

3.1 Interpreting Treaties

3.3.1 International Law in Interpretative Material

3.3.1 Interpretation and Application of Treaties

3.3.2 Interpreting the Terms in Light of a Treaty's object and Purpose

3.3.3 Principles for Identifying balance between Treaties

3.2 Interpretative Material under Human Rights Conventions

3.2.1 In General Concerning the Un Human Rights Instruments

3.2.2 The Relevant Interpretative Material from the Un Human Rights Instruments

3.3 Interpretative Material under the WTo

3.3.1 In General Concerning the WTo

3.3.2 The Relevant WTo Interpretative Material

3.4 Interpretative Material under the UPoV Convention

3.4.1 In General Concerning UPoV

3.4.2 The Relevant UPoV Interpretative Material

Part II: Relevant Provisions from the International Covenant on Economic, Social and Cultural Rights

4 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'

5 The Right to Food as Recognized in the International Covenant on Economic, Social and Cultural Rights

5.1 The origins and the Content of the Right to Food

5.1.1 Emerging Recognition of the Right to Food

5.1.2 Introduction to the Analysis of Article 11

5.1.3 Article 11.1

5.1.4 Article 11.2

5.1.5 Article 11.2(a)

5.2 Clarifying Relevant Relationships

5.2.1 The Relationship between Improved Methods of Food Production and Improved Methods of Food Distribution

5.2.2 The Relationship between Technology and the Environment

5.2.3 The Relationship between the Provisions of the Covenant and the Universal Declaration of Human Rights as well as other Instruments

5.3 'International Cooperation'

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 The TRIPS Agreement, Particularly Patent Protection

8.1 The TRIPS Agreement as Part of the WTo Agreement

8.1.1 Introduction

8.1.2 The Particularities of TRIPS

8.1.3 Principles and Procedures Regarding Developing Countries in the Dispute Settlement System

8.1.4 Application of the Dispute Settlement System and national Application of TRIPS Provisions

8.1.5 A brief Drafting History of TRIPS

8.2 Patent Protection in the TRIPS Agreement

8.2.1 Introduction

8.2.2 Patent Eligibility

8.2.3 Exclusions from Patentability

8.2.4 Exclusive Rights

8.2.5 Exceptions and Limitations

8.2.6 Summary of the Material Provisions on Patent Protection in TRIPS

8.3 Enforcement

9 Effective Sui Generis Systems for the Protection of New Varieties of Plants

9.1 Plant Varieties Protection as Defined by UPoV

9.1.1 Eligibility Criteria

9.1.2 Exclusions from Plant Variety Protection

9.1.3 Exclusive Rights

9.1.4 Exceptions and Limitations

9.2 Requirements of an Effective Sui Generis System

9.2.1 Introduction

9.2.2 Considerations for Developing States

9.2.3 What is 'Effective Sui Generis' Understood to Imply?

9.2.4 Eligibility Criteria

9.2.5 Exclusions from Plant Variety Protection

9.2.6 Exclusive Rights

9.2.7 Exceptions and Limitations

9.2.8 Summary: Requirements of an 'Effective Sui Generis' System

Part IV: Comparison between Measures to Realize the Right to Food and Measures to Strengthen Patent and Plant Variety Protection

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 ther Human Rights bodies

10.3 Could the International Court of Justice Solve a Dispute Relating to Patent Protection and the Right to Food?

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

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

12 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

Part V: Conclusions

Acronyms

Symbols

Definitions

Table of Cases

Literature

Index