Intellectual Property and the Right to Adequate Food: A Critical African Perspective

African Journal of International and Comparative Law
Vol. 23, No. 3 (2015), pp. 503-525

Less developed countries, especially those in Africa, are buffeted by a complex combination of factors in their bid to realize the right to adequate food pursuant to the International Covenant on Economic, Social and Cultural Rights. Integral to that right are the ideas of freedom from hunger, poverty eradication, food security, and food sovereignty. A number of factors assailing the realization of the right to adequate food in Africa include extreme weather conditions, via climate change dynamics; dysfunctional governments, political corruption, infrastructural deficits, and gaps in food and agricultural policies. Less obvious factors with potential to undermine the right to food include intellectual property and free trade; transformations in agricultural innovations and production, such as genetic modifications, monoculture and globalization of large scale industrial agriculture, intensification of mining and extractive industrial activities and, lately, the phenomenon of land grab. This article revisits the context for the introduction of IP in agriculture and the interplay of these enumerated factors and maps them onto the work of UN Committee on Economic, Social and Cultural Rights in its elaboration of the right to adequate food. It argues that even in the perceived negative impacts on the right to food of international IP and trade law obligations of African states, they still have the leverage to insist upon and to develop context-sensitive agricultural policies in the service of human right to adequate food by drawing inspiration from other developing countries that have maintained the primacy of the right to health over unfavorable patent laws.

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