Access to Food and Intellectual Property Rights: Commentary on the Draft UNIDROIT/FAO/IFAD Legal Guide on Agricultural Land Investment Contracts

This commentary considers the access to food component of the draft UNIDROIT/FAO/IFAD Legal Guide on Agricultural Land Investment Contracts (Guide) and voices its silence on intellectual property rights (IPRs). In the past decade, foreign investors have increased the number of investments in the long-term lease of arable land, especially in Africa, and in the Global South, generally. The reasons for the choice of these locations include the availability of large portions of inexpensive agricultural land, inexpensive local labour and favourable climatic conditions for crop production. The Guide proposes more responsible investments in agriculture from public and private sector investors as a way to achieve, inter alia ‘No Poverty’ and ‘Zero Hunger’ (Sustainable Development Goals 1 and 2).

The agricultural investment (investments), typically bilateral, involving an investor and a legal tenure right holder or a legitimate tenure holder, are in different forms, including investment contracts, concession agreements, community development agreements, contract farming and joint ventures. There are concerns that the agricultural land investment contracts are often negotiated or implemented in ways that fail to involve all holders of tenure rights or properly balance policy goals such as promoting food security, protecting the environment, safeguarding the rights of legitimate tenure right holders and stimulating economic goals. A critical analysis of the investments and concomitant contracts uncover social, economic, ethical and political complexities. Nevertheless, the Guide proposes the amelioration of food security concerns and complexities through ex ante human rights impact assessment.