2.3 Provisions for Food Security in Non-IP Based International Law and Agreements
2.3.1 The CBD and the Nagoya Protocol
The CBD is an international agreement aimed at advancing conservation of biological diversity and sustainability, by ensuring access to genetic resources and fair and equitable sharing of the benefits arising from their utilization. The CBD is of great importance to food security as it provides in Articles 8(j) and 15 for protection of traditional knowledge, prior informed consent and access and benefit sharing, rights which while not formally recognized under IP protection, play an important role in advancing food security.290
Article 16(1) of the CBD recognizes that “both access to and transfer of technology among Contracting Parties are essential elements for the attainment of the objectives” of the convention.
Subsequently, the article requires states to “provide and/or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment.” As Article 16.1 of the CBD defines technology to include biotechnology, the Convention attempts to enhance the flow of biotechnology between countries. Because of the capacity of biotechnology to improve agricultural production, studies generally agree that the CBD
289 See GRAIN, “Ten Reasons Not to Join UPOV”, GAIN Issue no.2, 15 May 1998; Rural Advancement Foundation International (RAFI), “TRIPS Traps or Dice? Gambling with World Food Security”, Echoes, online: <
http://www.rrojasdatabank.info/trade1.htm>; RAFI, “TRIPS Traps for Small Farmers: The Impact of IPRs on Sustainable Food Security and Farm Families Remains to be Felt”, RAFI Genotype, May 1999.
290 Terry Sunderland, “Food Security: Why is Biodiversity Important?” (2011) 13:3 International Forestry Review 265; Jillian Lenne & David Wood, “Agrobiodiversity Revisited”, in Jillian Lenne & David Wood, eds,
Agrobiodiversity Management for Food Security: A Critical Review (Wallingford: CAB Int., 2011) at 1-12.
provisions have the potential to enhance food security in African countries.291 However, case studies illustrate the unsustainability of policies adopted by African countries to import and distribute improved varieties.292 This indicates that harnessing the potential of biotechnology for food security in the continent requires technology transfer that involves human capacity development and enables smallholder farmers in Africa to innovate locally.293 Accomplishing such technology transfer in West Africa will require procedural changes to IP regulations to effectively include smallholder farmers.
The need for inclusion is highlighted in statements made by parties to the CBD in which they stress that technology transfer will not be effective as a one-way activity.294 Rather, it needs to be entrenched in an inclusive decision-making process as well as in integrated, long-term scientific and technological cooperation, including the joint development of technologies.295 The obligations for technology transfer are provided for under article 16 of the CBD (access to and transfer of technology); articles 12, 17 and 18 (information sharing and cooperation); article 19 (participation and capacity building) and article 20 (funding and the transfer of technology). CBD member states shall take full account of the specific needs and special situation of least developed countries in their actions with regard to funding and transfer of technology. 296 Each of these provisions increases space for differentiation in IP agreements made by West African states so as
291 UNESC, “The Role of Science, Technology and Innovation in Ensuring Food Security by 2030”, Report of the Secretary General, 27th February, 2017, E/CN.16/2017/3, at 5-6.
292 UNCTAD, “The Role of Science, Technology and Innovation in Ensuring Food Security by 2030”, (New York:
UN, 2017) UNCTAD/DTL/STICT/2017/5, at 3.
293 Ibid.
294 Technology Transfer and Co-operation, Conference of the Parties to the Convention on Biological Diversity, 9th meeting, Agenda Item 4.3, UN Doc UNEP/CBD/COP/DEC/IX/14 (9 October 2008) annex (‘Strategy for the Practical Implementation of the Programme of Work on Technology Transfer and Scientific and Technological Co-operation’) para 4.
295 The Convention treats technology transfer as the transfer of a system that includes materials, know-how, procedures and processes, rather than as the mere transfer of a product such as the sale of germplasm: ibid.
296 CBD, Article 20(5).
to build their scientific, institutional, administrative and legal capacity to adopt and adapt technology relevant for food security.297
The detailed provisions of the CBD provide greater flexibility for considering food security interests. Parties have obligations to: facilitate access and transfer of technologies to developing countries under “fair and most favourable terms”;298 provide, on mutually agreed terms, access and transfer to provider states technology (including technology protected by patents) which makes use of their resources;299 promote priority access, on mutually agreed terms and on a fair and equitable basis, to the results and benefits arising from biotechnologies based on provider countries’ genetic resources;300 facilitate access to and transfer of technology from the private sector;301 and cooperate to make sure that intellectual property rights support the Convention’s objectives.302
The Nagoya Protocol is a protocol to the CBD aimed at advancing the third objective of the CBD relating to fair and equitable sharing of benefits from utilization of genetic resources.303 It develops the legal framework and institutions to achieve the CBD’s objectives of Access to Genetic Resources (Article 15) and Traditional Knowledge (Article 8(j)), all of which are relevant tools in achieving food security. Article 5 of the Nagoya Protocol calls for fair and equitable benefit sharing; Article 6.3 requires prior informed consent (PIC), or approval and involvement of indigenous and local communities (ILCs), before commercialization of bio-genetic resources;
while Article 7 requires access and benefit sharing (ABS), relating to the development of genetic
297 Fran Humphries, “Technology Transfer of Aquatic Genetic Resources under the Convention on Biological Diversity and the Nagoya Protocol: Sponging Off Patent Law Defences” (2016) 39:1 University of New South Wales (UNSW) Law Journal 234, at 237-240.
298 CBD, Article 16(2).
299 CBD, Article 16(3).
300 CBD, Article 19(2).
301 CBD, Article 16(4).
302 CBD, Article 16(5).
303 Nagoya Protocol, Article 1.1.
resources associated with traditional knowledge, be done on mutually agreed terms (MAT) with ILCs. The Protocol covers aspects of biotechnology304 that are also a subject of the CBD and TRIPS Agreements. This potential for overlap is recognized by the CBD and it attempts to preclude conflicts by stating that the “Protocol shall be implemented in a manner mutually supportive with other relevant international instruments”;305 without hierarchy between itself and other international treaties; and disallows other international agreements to run counter to its objectives.306
The CBD and Nagoya Protocol must cede to existing international agreements, unless there is likely to be a “serious damage or threat to biological diversity”.307 Uncertainty remains, however, about the threshold for harm that would justify the Protocol’s overriding effect in such cases.308 There is also uncertainty about the impact on the Convention of later agreements such as TRIPS. As ECOWAS countries are signatories to all the above agreements, reference to the CBD and Nagoya objectives may provide room for more flexible interpretation of IP norms to support food security interests in West African states.