Over the past 25 years, hundreds of millions of people have been lifted out of poverty, though often at the expense of the environment. What efforts are underway or could be implemented not only to achieve “green growth” but also to ensure that it is inclusive and equitable? This essay, part of the Middle East-Asia Project (MAP) series on “Transitioning to Inclusive Green Growth,” explores these and other related questions. More ...
Agriculture offers a genuine transition to the green economy, since it provides the world with food, fiber and fuel. In many developing countries, the agricultural sector is the largest provider of employment and opportunities for environmental stewardship. In recognition of this fact and in anticipation of the convening of the United Nations Conference on Sustainable Development (Rio+20 Summit)in June 2012, the U.N. Food and Agriculture Organization (FAO) launched the Greening the Economy with Agriculture (GEA) Initiative, intended to foster a dialogue aimed at contributing to the definition and implementation of the “green economy,” with an emphasis on food security.
At its core, GEA “refers to ensuring the right to adequate food, as well as food and nutrition security — in terms of food availability, accessibility, stability and utilization — and contributing to the quality of rural livelihoods, while efficiently managing natural resources and improving resilience and equity throughout the food supply chain, taking into account countries’ individual circumstances.” In addressing the issue, the Rio+20 outcome document reaffirms the necessity to promote more sustainable agriculture that is not only improves food security, eradicates hunger and that is economically viable, but that it should conserve land, water and genetic resources of plants and animals, biodiversity and ecosystem, and enhance resilience to climate change and natural disaster. It recognizes “the need to maintain natural ecological processes that support food production systems.”
Agriculture is a significant contributor to Egypt’s economy. However, in recent years Egypt has faced serious challenges producing food for a growing population in a sustainable manner. How can the Egyptian economy be “greened” with agriculture? In an effort to address this question, this essay provides an in-depth analysis of recently enacted laws — including the Egyptian Constitution of 2014 and Law (26/2015) — that could have a far-reaching impact on sustainable agriculture and food security.
Egypt’s Rich Agricultural Biodiversity at Risk
Ancient Egyptian civilization developed one of the world’s first agricultural systems. The agricultural practices of ancient Egyptians allowed them to grow stable food crops, especially grains. In addition, ancient Egyptians practiced a kind of sustainable agriculture by adapting their farming along the Nile valley to the ecological condition, which allowed their civilization to thrive and endure.
Today, agriculture is still a key component of the Egyptian economy. It provides livelihoods for about 55 percent of the population, which is largely rural. The agricultural sector accounts for about 17 percent of the country’s gross domestic product (GDP) and approximately 20 percent of its foreign exchange earnings. Crops such as cotton, rice, wheat and clover cover 80 percent of the cultivated area of the country. Agriculture is also a source of raw material for a number of economic sectors, including the cotton industry.
Egypt’s agricultural production, food security, and environmental conservation depend, to a large extent, on the country’s remarkable biodiversity. Egypt is home to more than 3,000 plant species. Egypt’s agrobiodiversity encompasses not just its wide variety of species and genetic resources, but also the numerous practices that farmers employ to use, enhance, and conserve this diversity.
However, Egypt’s biological richness and unique seed heritage is currently at risk, as the country is experiencing a sharp decline in its crop biodiversity from the levels that existed only a few decades ago, due to drought, the impact of improved commercial seeds, as well as arguably outdated environmental and developmental policies.
Impact of the Amendment of Egypt’s Intellectual Property Legislation (82/2002)
Egypt has kept its agricultural sector outside the purview of the intellectual property rights (IPRs) system. As early as 2000, however, attempts were made to bring agriculture within the ambit of intellectual property protection. Egypt was required to amend its intellectual property law to ensure conformity with the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Egypt is also obligated to bring its IP law into conformity with the bilateral trade deals with the European Union. Article 73(5) of the Association Agreement with the European Union (hereafter AA) requires Egypt to provide effective protection of IPRs in line with prevailing international standards, including by acceding to the 1991 International Union for the Protection of New Varieties of Plants Convention(UPOV 91).
During the negotiation of the AA, the EIPL (82/2002) was passed by the Parliament to ensure Egypt’s compliance with the TRIPS Agreement. The EIPL (82/2002) allows the patentability of micro-organisms and non-biological and microbiological processes but explicitly excludes plants and biological processes for the production of plants from the scope of patentable subject matter. In the context of plant varieties protection, the breeder’s right is narrowly drawn in the EIPL (82/2002) in that the basic right is confined to the production and commercialization of propagating material of a protected variety. Accordingly, the scope of the breeder’s right so defined in the Egyptian law is similar to the provisions of the 1978 UPOV. Hence, the EIPL (82/2002) allows farmers to replant seed of protected varieties on their own farms without the authorization of the breeder under certain circumstances. It also permits breeders to use a protected variety for breeding purposes. In the context of the breeding exemption, the EIPL (82/2002) permits activities of breeding, cross breeding, and selection for the purpose of breeding new varieties, which may take place by third parties without the breeder’s authorization.
The EIPL (82/2002) has also codified some interface rules to avoid restrictive property rights on plant genetic resources. For instance, its Article (196) provides a compulsory license regime in respect of plant varieties. This exception is available under different circumstances in the Egyptian law, while the granting of compulsory licensing is recognized in the 1991 UPOV only for reasons of public interest. Other limitations to the breeder’s right that are specific to Egypt are adopted under Article 199 of the EIPL (82/2002). According to that Article, the Minister of Agriculture is authorised to to directly limit some or all of the breeder’s right if this is in the national interest. Article 199 provides some examples that could be the basis to restrict the breeder’s right, and these when a protected variety may have:
➢ a harmful impact on the environment, particularly biodiversity, the life or health of humans, animals or plants, or to the agriculture sector.
➢ economic, social or agricultural impacts that hamper agricultural activities in Egypt.
➢ uses that are contrary to the values and beliefs of the Egyptian society.
In 2015, however, Egypt issued Law (26), which amended Book Four “Plant Variety Protection” of the EIPL (82/2002). Law (26/2015) states that the amendment of the plant variety protection system is intended to secure compliance with the Association Agreement with the European Union. Under Law (26/2015), extensive additions to the EIPL (82/2002) were made with respect to the exclusive rights enjoyed by breeders in protected material of plant varieties. Its amended Article (194.7) provides the breeder with rights exercisable over harvested material obtained through the unauthorized use of the protected variety. This implies that breeders’ rights extend to harvested material, including entire plants and parts of plants. Breeders’ rights also cover products made directly from the harvest. Thus, it can be argued that the extension of breeders’ rights to harvested material might not only limit farmers’ rights to save, use and exchange seed, but also adversely affect their livelihood by depriving small-scale farmers of access to productive materials essential to their very lives.
In addition, the substantive requirements that must be demonstrated to merit protection for a specific plant variety (novelty, uniformity, stability and distinctness) are preserved as they were in the EIPL (82/2002). Therefore, it can be argued that Law (26/2015) is subject to the same criticism that preceded its amendment: that it fails to protect farmers’ traditional varieties. Requiring a variety to conform to the standards of stability and uniformity would imply that farmers’ varieties cannot be included in plant variety protection provided for in the Egyptian law. This is because farmers’ varieties most commonly do not show sufficient uniformity and stability to be protected under plant variety law. Considering the uniformity and stability requirements, it has been argued that the imposition of the requirements for stable and genetically uniform plants can lead to the replacement of genetically-diverse traditional varieties by modern seed, which are to a large degree genetically uniform.
Given the absence of any reference to the UPOV in the TRIPS Agreement, there could be room for flexibility in the formulation of respective national plant variety protection law. It is suggested that the criteria of uniformity and stability could be replaced by a single criterion of “identifiability.” This is to allow more heterogeneous traditional varieties to be protected and to safeguard the interests of the local communities. But being a party to the UPOV, Egypt does not benefit from the flexibility alleged to be provided in the TRIPS Agreement.
The safeguarding of essentially derived varieties is another feature of Law No. 26 that could have far-reaching impact on access to agricultural material and knowledge. Before its amendment, Article 194 of the EIPL (82/2002) allowed breeders the freedom to use protected varieties for research and breeding purposes. This means allowing breeders to create a new variety of plant through the use of protected varieties without the authorization of the original breeder. According to amended Article 194, however, essentially derived varieties are eligible for plant breeder rights in the same way as for any initial variety. The inclusion of essentially derived varieties will narrow the breeders’ exemption under the Egyptian law. Thus, in introducing the essentially derived variety provision, the benefits that a breeder could secure will be limited under this exemption.
Egypt’s “Green” Constitution
In 2014, however, Egypt committed itself to the principle of sustainable development, and the right to a sustainable environment has been enshrined for the first time within the new Egyptian Constitution. The constitutional emphasis on sustainable development reflects the fact that one of the main factors igniting the uprising of 2011, and the subsequent protests, were extreme cases of social injustice. A “bread riot” can generally be considered as a typical signal of uprising in Egypt. Egyptian protesters repeated three demands during the 2011 uprising: “bread, freedom and social justice.” Thus, constitutional reform in Egypt can be considered as a response to environmental problems that have complicated the efforts to promote economic and social development. The 2014 Constitution, at its core, aims to embrace a development approach that balances social and economic needs with the protection of the environment.
In recognizing the right to a healthy environment as a basic human right, the 2014 Constitution links the realization of this right to taking measures that ensure sustainable natural resources and development. Article 46 of the 2014 Constitution explicitly provides that “[t]he state is committed to taking the necessary measures to preserve it [the environment], avoid harming it, rationally use its natural resources to ensure that sustainable development is achieved, and guarantee the rights of future generations thereto.”
Importantly, the 2014 Constitution declares that the Egyptian people have a right to adequate and healthy food within the context of sustainable development, establishing the responsibility of the state to ensure food resources to all citizens. The drafting of Article (79) suggests that the right of Egyptians to adequate food are built on three main pillars: food sovereignty; the conservation of agro-biodiversity; and the consideration of the needs of future generations. The reference to “food sovereignty” instead of the concept “food security” in the Constitution raises a question that will need to be addressed by future studies.
The constitutional commitment to sustainable development is also confirmed in the context of the protection of natural resources. Article 32 of the Egyptian Constitution provides that:
Natural resources belong to the people. The State commits to preserve such resources, to their sound exploitation, to preventing their depletion, and to take into consideration the rights of future generations to them.
It is clear that the 2014 Constitution embraces the tradition of peoples’ property rights to natural resources in the same way as the former Constitution of 1971, but goes beyond that to establish that the state is responsible to secure sustainable development. This obligation to conserve natural resources is expanded to include agro-biodiversity, as Article 79 on the right to adequate food obligates the state to conserve agro-biodiversity. Yet, despite this emphasis on adopting a development approach that balances economic growth and social justice with environment sustainability, the Constitution does not explain how to implement the commitment to adequate food and agricultural biodiversity conservation.
Domestic Needs vs. International Norms
In conclusion, although providing effective intellectual property protection enables Egypt to be regarded as a reliable partner in international fora, Law (26.2015) provides protection that exceeds the standards of protection required by the TRIPS Agreement. Indeed, Egypt does not benefit from the flexibility provided in the TRIPS Agreement. Based on the results of this study, Egypt should avoid bilateral free trade agreements that contain TRIPS-plus obligations (i.e., patents related to biotechnology and plant breeder’s rights). This is because the main area affected by providing such high standards of IP protection is that of seeds and plants, the first link in the food chain. Methods of agriculture, seeds and plants, were not patentable in Egypt as they were held as common goods. It is estimated that 62 percent of Egyptian farmers relied on farm-saved seed to meet their agricultural and food needs. This notwithstanding, Egypt’s intellectual property law recognizes for the first time private property rights over genetic resources.
Egypt should strive to fulfill its constitutional commitment to sustainable development and the right of Egyptians to adequate food. However, the implementation of international law obligations for the protection of plant-related intellectual property rights, and those of environmental sustainability is translated into a complex legislative and policy framework in Egypt. This highlights the importance of having an enabling legal framework at the international level that supports developing countries’ efforts to address the erosion of agricultural biodiversity and food insecurity.
 United Nations Food and Agricultural Organization (FAO), “Greening the Economy with Agriculture” (2012) 3, accessed August 15, 2017, http://www.fao.org/nr/sustainability/greening-the-economy-with-agricult…
 U.N. General Assembly, “The future we want,” A/RES/66/288, July 27, 2012) para.111.
 Constitution of the Arab Republic of Egypt 2014, adopted by popular referendum on January 15-16 and entered into force on January 18, 2014, accessed August 15, 2017, www.wipo.int/edocs/lexdocs/laws/en/eg/eg060en.pdf.
 See Ministerial Decree No. 26 of 2015 amending Book Four “Plant Variety Protection” of the Intellectual Property Legislation (82/2002), accessed August 15, 2017, http://gate.ahram.org.eg/News/685267.aspx.
 J. Donald Hughes, An Environmental History of the World: Humankind’s Changing Role in the Community of Life (London: Routledge, 2011) 38-39.
 For instance, other ancient civilizations, such as Mesopotamia and India, degraded the land they had cultivated for a long time either by excessive irrigation or excessive use. See P. Ilyinskii, “The Impact of the Novel Technologies on the Environment throughout History” in Yuri Magarshak, Sergy Kozrev and Ashok K. Vaseashta (eds.), Silicon Versus Carbon: Fundamental Nanoprocesses, Nanobiotechnology and Risks Assessments (Netherlands: Springer, 2008) 187.
 Hughes, An Environmental History of the World: Humankind’s Changing Role in the Community of Life.
 Mohamed A. El Hawary and R. Rizk, “Egypt: Country Pasture/Forage Resources Profiles,” United Nations Food and Agriculture Organization (2011), accessed August 15, 2017,www.fao.org/ag/agp/agpc/doc/counprof/PDF%20files/Egypt.pdf.
 Majdi Madcour and Abdul Munim Abouzeid, Egypt: Country Report to the FAO International Technical Conference on the Plant Genetic Resources, Leipzig 1996 (Giza, May 1995) 11.
 Helen Chapin Metz (ed.), Egypt: A Country Study (Washington, DC: Library of Congress, 1990) 1, 175.
 Salma N. Talhouk and Maya Abboud, “Impact of Climate Change: Vulnerability and Adaptation” in Mostafa K. Tolba and Najib W. Saab (eds.) Arab Climate Change: Impact of Climate Change on Arab Countries (Arab Forum for Environment and Development (AFED), 2009) 1, 102.
 Law (26/2015) Preamble.
 Article 2.4 of the EIPL (82/2002).
 Article 195.1 of the EIPL (82/2002).
 Article 194 of the EIPL (82/2002).
 Article 196 of the EIPL (82/2002) provides: “The office of plant variety protection, on submission by the Minister of Agriculture and after the approval of a ministerial committee established by a decision of the Prime Minister, may grant non-voluntary licenses to use and exploit the protected variety without the consent of the breeder, when necessary to safeguard the public interest and where the breeder fails to produce the variety on his own or to provide the propagation material of the protected variety, and where he refuses to grant third parties license for the exploitation of the variety, despite the appropriate conditions offered, or where he practices unfair competition.”
 Article 199 of the EIPL (82/2002).
 Law (26/2015) Preamble.
 Article 194.7 of Law (26/2015).
 Article 192 of Law (26/2015).
 Hans Morten Haugen, The Right to Food and the TRIPs Agreement with a Particular Emphasis on Developing Countries Measures for Food Production and Distribution (Leiden: Martinus Nijhoff Publishers, 2007) 1, 271.
 Queen Mary Intellectual Property Research Institute, “The Relationship between Intellectual Property Rights (TRIPs) and Food Security,” 2004 DG Trade of the European Commission, 730.
 Dan Leskien and Michael Flitner, “Intellectual Property Rights and Plant Genetic Resources: Options for A Sui Generis System” (Issues in Genetic Resources No. 6, 1997) 1, 10.
 Queen Mary Intellectual Property Research Institute, “The Relationship between Intellectual Property Rights (TRIPs) and Food Security.”
 Article 194 of Law (26/20150) provides: 1. (a) Subject to Articles 195 and 198, the following acts in respect of the propagating material of the protected variety shall require the authorization of the breeder: production or reproduction (multiplication), conditioning for the purpose of propagation, offering for sale, selling or other marketing, exporting, importing, stocking for any of the purposes mentioned in this paragraph. 2. Subject to Articles 195 and 198, the acts referred to paragraph (1) (a) in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorized use of propagating material of the protected variety shall require the authorization of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said propagating material. 3. (a) The provisions of paragraphs (1) and (2) shall also apply in relation to (i) varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety
 “The Right to a Sustainable Environment in the Egyptian Constitution,” Tadamun, January 8, 2014, accessed August 15, 2017, http://www.tadamun.co/2014/01/08/right-to-a-sustainable-environment-in-….
 Mariz Tadros, “Where’s the ‘bread, freedom and social justice’ a year after Egypt’s Revolution,” The Guardian, January 25, 2012, accessed August 15, 2017, https://www.theguardian.com/global-development/poverty-matters/2012/jan….
 Article 46 of the Egyptian Constitution of 2014 confirms the principle of sustainable development and acknowledges the right of Egyptians to a healthy environment, providing that “every individual has the right to a healthy, sound and balanced environment.” The Egyptian Constitution establishes the responsibility of both the state and citizens to the protection of the environment by stating that the protection of the environment is a “national duty.” Article 46 of the Constitution provides that “[t]he state is committed to taking the necessary measures to preserve it [the environment], avoid harming it, rationally use its natural resources to ensure that sustainable development is achieved, and guarantee the rights of future generations thereto.”
 Article 79 of the Egyptian Constitution of 2014.
 Article 79 of the Egyptian Constitution stipulates that “[t] he state shall provide food resources to all citizens. It also ensures food sovereignty in a sustainable manner, and guarantees the protection of agricultural biological diversity and types of local plants to preserve the rights of generations.”
 Article 24 of the former Egyptian Constitution of 1971 recognises that “the people shall control all means of production and direct their surplus in accordance with development plan laid down by the State.” Article 33 establishes that “[p]ublic ownership is the ownership of the people and it is confirmed by the continuous support of the public sector. The public sector shall be the vanguard of progress in all sphere and shall assume the main responsibility in the development plan.”
 Article 79 of the Egyptian Constitution of 2014.
 The Egyptian Constitution of 2014 also adopts the principle of sustainable development in the context of the state economic foundations. Its Article 27 provides that “the economic system aims at achieving prosperity through sustainable development and social justice.” It can be noted that it nuances the commitment to sustainable development in slightly different way focusing on raising ‘the real growth of the national economy and the standard of living, increase job opportunities, reduce unemployment rates and eliminate poverty’.
 El Hawary and Rizk, “Egypt: Country Pasture/Forage Resources Profiles.”