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The Right to Food and the Right to Intellectual Property in the United Nations (Including International Human Rights) and International Trade: Finding the Definition

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The Right to Food and the Right to Intellectual Property in the United Nations (Including International Human Rights) and International Trade: Finding the Definition Western University Scholarship@Western Electronic Thesis and Dissertation Repository 7-18-2017 12:00 AM The Right to Food and the Right to Intellectual Property in the United Nations (including International Human Rights) and International Trade: Finding the Definition Darinka Tomic The University of Western Ontario Supervisor Dr. Margaret Ann Wilkinson The University of Western Ontario Graduate Program in Studies in Law A thesis submitted in partial fulfillment of the equirr ements for the degree in Master of Studies in Law © Darinka Tomic 2017 Follow this and additional works at: https://ir.lib.uwo.ca/etd Part of the Human Rights Law Commons, Intellectual Property Law Commons, and the International Law Commons Recommended Citation Tomic, Darinka, "The Right to Food and the Right to Intellectual Property in the United Nations (including International Human Rights) and International Trade: Finding the Definition" (2017). Electronic Thesis and Dissertation Repository. 4672. https://ir.lib.uwo.ca/etd/4672 This Dissertation/Thesis is brought to you for free and open access by Scholarship@Western. It has been accepted for inclusion in Electronic Thesis and Dissertation Repository by an authorized administrator of Scholarship@Western. For more information, please contact [email protected]. Abstract Intellectual property (IP) is omnipresent in both the context of the United Nations (UN) system (including international human rights law and the World Intellectual Property Organization (WIPO)), and international trade law, while the right to food has a much lower international profile. IP moved into international trade in 1994 through the TRIPS Agreement. The right to food has no presence in international trade. These two rights are the focus of this study – but are contrasted with several other rights: the right to health and the rights of persons with disabilities. The right to health was not present in international trade until 2001when in the Doha Declaration, it first appeared paired with IP. The rights of persons with disabilities still do not appear in the international trade context but the 2013 Marrakesh Treaty nonetheless connects them with IP. This thesis traces the definition of the right to food and the right to IP using doctrinal and historical analysis. The author concludes that (a) that lack of clarity in the definition of the right to food, and (b) lack of strength in international institutions, both make the right to food ill- prepared for the challenges presented by the increasingly powerful position of IP in international arenas. Keywords Right to Food, Right to Intellectual Property, International Public Law, Right to Health, Rights of Persons with Disabilities, International Human Rights Law, Intellectual Property, International Trade, Doha Declaration, Marrakesh Treaty i Acknowledgements I would like to thank Visiting Professor Dr. Graeme W. Austin, from the Faculty of Law, Victoria University of Wellington (New Zealand) whose course on Intellectual Property and Human Rights at the Faculty of Law, University of Western Ontario, together with the book (Human Rights and Intellectual Property: Mapping the Global Interface) he co- authored with Professor Laurence R. Helfer, sparked my interest in the topic developed in this thesis. My most sincere gratitude goes to my supervisor, Dr. Margaret Ann Wilkinson, Professor at the Faculty of Law, University of Western Ontario, who I admire for her unsurpassed passion for knowledge, and for her outstanding commitment and dedication to her students. Her tremendous support, encouragement and academic guidance helped me to complete this thesis. I have been honoured and privileged to work under her supervision. I would like to extend my gratitude to the second reader of my thesis, Professor Valerie Oosterveld, Associate Dean (Research) at the Faculty of Law, University of Western Ontario, for her extremely valuable comments on my thesis draft, the time she took to sit on the Board of Examiners, and for her comments on my thesis after the defence. I am grateful to Professor Chios Carmody, Faculty of Law, University of Western Ontario, for reading my thesis and being on the Board of Examiners, and for his detailed comments on my thesis. I thank Professor Dan Bousfield, from the Faculty of Political Science, University of Western Ontario, for reviewing and commenting on my thesis as my examiner from outside the Faculty of Law. I also thank Professor Carl MacArthur from the Faculty of Law for chairing the thesis defence. I would like to extend my gratitude to the School of Graduate and Post-Doctoral Studies of the University of Western Ontario for the generous scholarship. I thank the Faculty of Law Dean, Associate Deans and Law Graduate Programme Director for their academic support during my masters studies in law. I also thank the staff of Western Libraries, particularly the staff of the John & Dotsa Bitove Family Law Library, for their assistance. I especially thank Mary Morris, Student Services Co-ordinator, Graduate Programs, Faculty of Law, for her administrative support and help with the thesis submission. Lastly, I would like to thank my family and friends for their constant support and encouragement. ii Table of Contents Abstract ................................................................................................................................ i Keywords ............................................................................................................................. i Acknowledgements ............................................................................................................. ii List of Tables ..................................................................................................................... vi List of Figures ................................................................................................................... vii List of Appendices ........................................................................................................... viii Chapter 1 ............................................................................................................................. 1 1 Introduction to the Thesis ................................................................................................ 2 Chapter 2 ........................................................................................................................... 25 2 Finding a Role and Definition for the Right to Food ..................................................... 26 iii Chapter 3 ........................................................................................................................... 53 3 Finding a Role and Definition for the Right to Intellectual Property ............................ 54 Chapter 4 ........................................................................................................................... 82 4 Attempts to Legally Bridge Differences Between Competing Rights ........................... 83 Chapter 5 ......................................................................................................................... 105 5 Conclusion ................................................................................................................... 105 Bibliography ................................................................................................................... 115 Appendix A: Provisions with Reference to Human Rights in the UN Charter .............. 126 Appendix B: Development Stages of the Universal Declaration of Human Rights and the Right to Food ..................................................................................................... 127 Appendix C: The Right to Food in UN Sources Post Universal Declaration of Human Rights ....................................................................................................................... 130 iv Appendix D: Relevant Provisions of the Universal Declaration of Human Rights (1948) ....................................................................................................................... 132 Appendix E: The Right to Intellectual Property – Development Stages from UDHR to ICESCR ................................................................................................................... 134 Curriculum Vitae: Darinka Tomic .................................................................................. 136 v List of Tables Table 1: Food and the Right to Food .................................................................................. 7 Table 2: Intellectual Property and the Right to Intellectual Property ................................. 9 Table 3: UDHR: The Right to Food Included in (i) The Right to an Adequate Standard of Living .................................................................................................................... 40 Table 4: ICESCR: The Right to Adequate Food in (i) The Right to an Adequate Standard of Living, and (ii) The Fundamental Right to be Free from Hunger .................... 40 Table 5: IP Prior to Being Declared a Human Right ........................................................ 58 Table 6: IP in the Human Rights Era ................................................................................ 68 Table 7: IP in the UN and WTO ....................................................................................... 78 Table 8: UDHR: The Right to Health Included in the Right to an Adequate Standard of Living ...................................................................................................................
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