The UN Declaration on Peasants' Rights (UNDROP): Is Article 19 on seed rights adequately balancing intellectual property rights and the right to food?

• Author: Hans Morten Haugen
• Date: 01 July 2020
• Published date: 01 July 2020
• DOI: http://doi.org/10.1111/jwip.12152

J World Intellect Prop. 2020;23:288–309.288

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wileyonlinelibrary.com/journal/jwip

DOI: 10.1111/jwip.12152

ORIGINAL ARTICLE

The UN Declaration on Peasants' Rights

(UNDROP): Is Article 19 on seed rights

adequately balancing intellectual property rights

and the right to food?

Hans Morten Haugen

Faculty of Theology, Diakonia and Leadership

Studies, VID Specialized University, Oslo,

Norway

Correspondence

Hans Morten Haugen, Faculty of Theology,

Diakonia and Leadership Studies, VID

Specialized University, P.O. Box 184 Vinderen,

0319 Oslo, Norway.

Email: hans.morten.haugen@vid.no

Abstract

The UN Declaration on the Rights of Peasants and Other

People Working in Rural Areas (UNDROP) was adopted

by the UN General Assembly in 2018. One provision that

caused opposition by certain states was Article 19 on the

right to seeds. The article discusses whether the right to

seeds is implicitly recognized by Article 15.1(b) of the

International Covenant on Economic, Social and Cultural

Rights (ICESCR) on “benefits of scientific progress…,”

seen in light of ICESCR Article 11.2(a) on “improving

methods of production…” as well as the Convention on

the Elimination of All Forms of Discrimination against

Women Article 14.2(g), on rural women's right to ap-

propriate technology. Moreover, the positive protection

of farmers' breeding efforts is covered by the wording of

ICESCR Article 15.1(c). Other treaties and soft‐law

sources also direct states to improve peasants' liveli-

hoods, including seeds. States can legislate to serve

peasants' interests and strengthen their rights when

adopting IPR legislation. The article shows how this can

be done, for instance by introducing exclusions and lim-

ited exceptions to IPRs. States have a policy space when

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This is an open access article under the terms of the Creative Commons Attribution‐NonCommercial‐NoDerivs License, which

permits use and distribution in any medium, provided the original work is properly cited, the use is non‐commercial and no

modifications or adaptations are made.

© 2020 The Authors. The Journal of World Intellectual Property published by John Wiley & Sons Ltd

implementing IPR legislation that should be utilized to

promote the right to food and the livelihood of peasants.

KEYWORDS

farmers' rights, peasants' rights, right to benefit from scientific

applications, seed rights

1|WHY A DECLARATION ON PEASANTS' RIGHTS AND WHY

DISAGREEMENTS OVER SEED RIGHTS?

Twelve years after the World Development Report 2008 highlighted the role of agriculture in fighting poverty

(World Bank, 2007), a new report from the same institution affirms that earning more from the farm is a key to

poverty reduction (Christiaensen & Vandercasteelen, 2019). Poor land policies and low productivity among

peasants are seen as main causes of many African countries' inabilities to diversify and improve their

economies. In addition to identifying the peasants as a key to economic transition, there are five other reasons

why the international community should be particularly concerned with policies that improve peasants' lives—

from local to global: (a) the hardships these peasants face; (b) domestic food security; (c) stemming migration to

the cities; (d) the role of sustainable agriculture for biodiversity; and (e) agriculture's role in reducing climate

change.

Hence, any efforts to identify policy measures that would reduce the vulnerabilities and enhance the pro-

ductivity of peasants should be expected to be welcomed by the international community. However, even if the

United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP; UN

General Assembly, 2018) was adopted, it was met with resistance and far from universal support.

1

Probably the most controversial provision in the UNDROP is Article 19, titled Right to Seeds.

2

The criticism

was that the right to seed is not appropriate to include in a human rights instrument adopted by the Human Rights

Council, and that there are other UN bodies that are more suitable, most notably the World Intellectual Property

Organization (WIPO) or the Food and Agricultural Organization (FAO). This article will analyze whether rights

relating to seeds are already implicitly recognized in the International Covenant on Economic, Social and Cultural

Rights (ICESCR; 170 State parties) Article 15.1(b) and Article 15.1(c), seen in light of ICESCR Article 11.2(a).

Moreover, the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW;

189 State parties) Article 14.2(g) recognizes the right to appropriate technology for rural women. ICESCR and

CEDAW are the two human rights treaties that address measures for advancing technology in the context of the

right to food, but only ICESCR does so explicitly, as will be shown. Global and regional treaties on genetic resources

and global and regional treaties on intellectual property rights (IPR), as well as domestic IPR legislation and

nonbinding sources, including from the FAO, will be scrutinized. The purpose is to identify if there is an adequate

basis to identify a human right to seeds.

Human rights treaty bodies have established a clear distinction between human rights and IPRs (UN Com-

mittee on Economic, Social and Cultural Rights [UN CESCR], 2006, paras. 3 and 4; see also UN Special Rapporteur

in the field of cultural rights, 2015;2012). The treaty bodies have also specified access to seeds (UN Committee

on the Elimination of Discrimination against Women [UN CEDAW], 2016, paras. 56 and 62) or rights relating to

seeds (UN CESCR, 2009a, para. 37). I will analyze these two below. These documents are termed general

recommendations (CEDAW) or general comments (ICESCR) and do represent the most authoritative elaborations

of the content of the respective treaty provisions, specifying also derived obligations and violations—but they do

not bind States which are parties to the respective treaties. Hence, I am also avoiding the term “interpretation”to

describe general recommendations or general comments. These are better referred to as “clarifications.”

HAUGEN

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