This webinar, moderated by Dr. Titilayo Adebola, was held on Wednesday, the 16th of September, 2020. The panelists comprised seven experts with experiential knowledge of the topic discussed.
Panelists
Ms Regina Andersen, Research Director for Biodiversity and Natural Resources, Fridtjof Nansen Institute, Norway.
Mr Michael Fakhri, United Nations Special Rapporteur on the Right to Food and Professor of Law, University of Oregon.
Ms Sussanah Chapman, Research Fellow, University of Queensland, Australia.
Ms Yolanda Huerta, Legal Counsel, International Union for the Protection of New Varieties of Plants.
Ms Isabel Lopez Noriega, Policy Specialist, Alliance for Biodiversity and CIAT.
Mr James Thuo Gathii, Professor of Law and the Wing-Tat Lee in International Law, Loyola University Chicago School of Law.
Contribution from Mr Marc de Wit, Plant Breeders’ Rights Office, Canada.
Ms Regina Andersen. Farmers’ Rights under the Plant Treaty: History, Interrelations with International Regimes and Recent Developments.
Regina began her discussion with a story about how the demand for farmers’ rights became provisions in the International Treaty for Plant and Genetic Resources for Agriculture, otherwise referred to as the Plant Treaty. She mapped the trajectory of farmers’ rights from a political science perspective.
According to her, the first years of conceptualising farmers’ rights as a political concept related to seed and genetic crop resources commenced in 1983. Pat Mooney and Cary Fowler coined the term ‘farmers’ rights’ to highlight the valuable but unrewarded contributions of farmers all over the world to the diversity of crop genetic resources. The idea for farmers’ rights was driven as a counter move to the increased demands for plant breeders’ rights. Fowler and Mooney drew attention to the unremunerated innovations of farmers that were the foundation of all plant breeding.
In the same year 1983, the International Undertaking on Plant Genetics Resources (International Undertaking) was adopted by the Food and Agriculture Organisation (FAO) Conference. This legally non-binding international agreement was the predecessor to the Plant Treaty. It was based on the then universally accepted principle that plant genetic resources are the common heritage of mankind and should be available without restriction.
This principle was the reason why several countries had reservations and did not adhere to the International Undertaking. These countries had already ratified the International Convention for the Protection of New Varieties of Plants (UPOV) an intergovernmental organisation established to provide and to promote effective plant breeders’ rights. These countries maintained that plant breeders’ rights was incompatible with the common heritage of mankind principle. This was the beginning of a controversy that began decades ago and exists even to this time.
It was in 1986, in a working group under the International Undertaking, that farmers rights’ was first addressed in the FAO system. The group highlighted that several countries had established plant breeders’ rights and that there was no equivalent acknowledgement of farmers’ rights. It considered such rights to be a fair recognition of the work done by thousands of previous generations of farmers. The group also stated that the issue at stake was not to recognise individual farmers or communities, but entire peoples who have bred, maintained and improved cultivated plants, but have not achieved the benefits of development.
Also in 1986, the Uruguay round of multinational trade negotiations commenced and culminated in the entry into force of the World Trade Organisation (WTO) set of agreements on 1 January 1995. The Uruguay round can be said to have fueled the controversies on breeders’ and farmers’ rights. There, intellectual property rights was introduced in the negotiations by the United States (US) but was strongly opposed by developing countries. However, surprisingly, in 1989, these developing countries changed their stance and dropped their resistance. This radical shift can be traced to the trade-in of issues during those negotiations.
The Agreement on the Trade-Related aspects of Intellectual Property Rights (TRIPS Agreement) was adopted, along with the other WTO agreements, in 1994.
TRIPS obliges members to provide for the protection of plant varieties by patents, an effective sui generis system, or a combination of systems. The trade negotiations at the Uruguay round influenced the developments at the FAO conference in 1989.
What was sacrificed at the Uruguay rounds was taken up again in the FAO in other ways. This partly explains how the breakthrough for farmers’ rights was achieved in 1989.
The FAO adopted two resolutions for the first time, officially recognisng farmers’ rights.
Resolution 4/89, was an agreed interpretation of the undertaking, stating that “plant breeders’ rights as provided for under UPOV were not incompatible with the International Undertaking” and it simultaneously recognised farmers’ rights.
Resolution 5/89 was a milestone as it sought to outline the content and implications of farmers’ rights. This became the basis of all major negotiations on farmers’ Rights.
In 1991, a new resolution was adopted by the FAO Conference. Resolution 3/91, which stated that the principle of genetic resources as the common heritage of mankind in the undertaking was subject to the sovereignty of states.
Therefore, with these changes in ’89 and ’91, the very essence of the International Undertaking seemed to fade away, amongst developing countries in particular.
Meanwhile, other international regimes were in the making. The issue of Farmers’ Rights came up again in the negotiations leading to the Convention on Biological Diversity (CBD), as well as in Agenda 21, both of which were adopted in 1992.
The CBD was the first legally binding international treaty to address the conservation and sustainable use and equitable benefit sharing related to biodiversity. However, the negotiators of the CBD did not manage to solve all the issues related to plant genetic resources for food and agriculture.
In the Nairobi final act adopting the text of the CBD, these outstanding matters were addressed and referred to the FAO for a solution. Farmers’ Rights was one of the outstanding matters that was brought back to the FAO.
In 1993, the FAO decided to provide a forum for how the undertakings should be harmonised with the CBD and this led to the adoption of the International Treaty on Plant Genetic Resources for Food and Agriculture, otherwise referred to asPlant Treaty (eight years after negotiations commenced), and with it, Article 9 on farmers’ rights
In Regina’s book, Governing Agrobiodiversity: Plant Genetics and Developing Countries, she analysed the interaction of the overlapping international regimes and identified that structural power was at play.
According to her “structural power is the ability to shape and determine the structures of the global political economy within which other states, their political institutions, their economic enterprises, and their professionals are to operate.”
Furthermore, she found that large companies in particular from the pharmaceutical and seed sectors actively influenced and framed the international regimes on intellectual property rights and also influenced the structures of the political economy under which other parties had to operate. These emerging structures were decisive for the negotiations under the international undertaking. So to say, removing the fundament of the undertaking, and they were decisive for the recognition of farmers’ rights as a kind of compensation for what happened.
However, normative power was also at play. According to Regina, “normative power is about the power of convincing ideas and norms.”
The involvement of farmers’ rights as a concept is an example of normative power; also the development of the CBD can be seen in the context of normative power.
Adopting the Plant Treaty in 2001 was a huge achievement in light of the environment of the negotiations. It was the first legally binding international agreement on the conservation, sustainable use, and benefit-sharing related to crop genetics, and farmers’ rights were recognised as an integral part of the Treaty. Also, the importance of farmers’ rights was emphasised in the preamble to the plant treaty.
In Article 9 of the Plant Treaty, the parties recognised the enormous contributions made by farmers worldwide in conserving and developing crop genetic resources which constitute the basis of all agriculture. The contribution by the farmers is a precondition for achieving the Plant Treaty and realising farmers’ rights is a means to enable farmers to continue this contribution.
According to Article 9, governments are to protect and promote farmers’ rights, however, they are at liberty to do so according to their needs and priorities.
Measures to protect farmers’ rights may include the protection of traditional knowledge, equitable benefit sharing, and participatory decision making.
Article 9 further addresses farmers’ rights to save, use, exchange, and sell farm-saved seed, but without giving any particular direction for such rights. Likewise, other articles are supportive of farmers’ rights, such as the articles on conservation and sustainable use, benefit-sharing, and compliance.
In 2017 the governing body of the plant treaty established an Adhoc Technical Expert Group on Farmers’ Rights (AHTEG), to produce an inventory of national measures that may be adopted, best practices and lessons learnt from the realisation of farmers’ rights and based on the inventory, to develop options for coaching, guiding and promoting the realization of farmers’ rights as set out in Article 9 of the Treaty.
This group has support from the Plant Treaty secretariat, providing an inventory, and thanks to contributors from all over the world, the group is currently working on the options.
In concluding her presentation, Regina stated that the conflict lines that emerged in the 1980s are still there, creating challenges for the realization of farmers’ rights and progress of the negotiations under the treaty. However, the governing body and its expert group provide a highly interesting arena for the development of norms related to the implementation of farmers’ rights.
Finally, what is left to be done was to bridge the divide in such a way that different options can be developed, that address the real need for the realisation of farmers’ rights, and although it appears difficult, it is doable.
Mr Michael Fakhri: The Right to Food and Farmers’ Rights.
Michael began by commending Regina for how she framed the historical and contemporary issues on farmers’ rights.
He towed the same line as Regina, and focused on how farmers’ rights are mentioned in the Plant Treaty, and also brought the discussion on the UPOV Convention.
According to him, farmers’ rights are treated differently in both the Plant Treaty and UPOV.
In his opinion, the way farmers’ rights are articulated in the Plant Treaty is aligned with human rights generally and the right to food specifically, whereas, under UPOV, it is treated more as farmers’ privileges.
Michael provided a summary of what the right to food means and identified instruments that articulate what farmers’ rights might mean from a right to food perspective, and finally explained why the Plant Treaty provides the foundation that aligns with human rights.
According to him, the right to food means food must be adequate, available, and accessible.
By adequate, it is meant, communities get to decide what is good food, based on particular conditions: culturally, nutritionally, socially and ecologically appropriate food.
Availability means people must have a reliable source of food and that could be through purchasing in markets or access to land, water, and resources in general. People should have the right to feed themselves directly from the land and the water.
Availability also requires that markets must be fair and access to resources must be available.
Finally, accessibility means, people must have economic and physical access to food, that is, food systems must be inclusive. He thinks of this in the sense that everyone must have access to a kitchen, which is the final point of processing food before it is eaten.
How are the farmers right and the right to food related?
Several instruments can provide guidance, and cradle human rights foundation to define and articulate farmers’ rights.
The two most obvious phases to start are two related instruments that emanated from the General Assembly. First is the UN Declaration on the Rights of Indigenous Peoples, and the second is the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas.
These declarations prioritise the rights of peasants, workers, and indigenous peoples in a particular way because they identify these groups of people as people with a special and direct relationship with land and water. People whose social life is deeply embedded in ecological patterns and rhythms across multiple generations and whose environment is embedded within their social life.
These two declarations recognise these peoples’ rights to access and control seeds, natural resources, intellectual property, and traditional knowledge (TK) at the scale of communities, states and peoples. In his words, “TK is experiential knowledge that is transmitted across several generations and central to defining the community’s sense of existence and identity.”
In addition to the above-mentioned declarations, Michael further made mention of the third instrument which has to do with agroecology. According to him, there has been work done to connect the right to food to the idea of agroecology.
This is the work of the Committee on World Food Security (CFS) and at the moment, the CFS is negotiating policy recommendations on agricultural, ecological, and other innovative approaches for sustainable agriculture. The right to food plays a role in that policy recommendation, therefore this policy recommendation can create a further foundation of articulating what farmers’ rights can be in the future.
Agroecology is devoted to creating a food system that is geared towards maintaining soil health and ever-increasing amount of biodiversity and a commitment to social justice and cultural diversity.
The FAO has put out ten principles of agroecology and has devoted significant resources to help countries transition to agroecology. It is also an approach that is dedicated to tackling climate change and treats social and ecological life as inseparable.
With regards to Regina’s expose on how farmers’ rights are articulated in Article 9 of the Plant Treaty, Michael argued that farmers’ rights map on easily with the right to food.
Under the Plant Treaty, the protection of TK, the right to equitable participation and benefit-sharing, the right to participate in decision making at the national level, related to conservation and plant genetic resources, and the right of farmers to save, use, exchange, and sell farm-saved seeds and other propagating material, are all outlined as issues of national concern within the Plant Treaty. Therefore, the right of peasants, farmers, and indigenous peoples are framed in collective terms and the emphasis is on resource sharing and biodiversity.
In addition, Michael noted that although UPOV has its benefits, strengths, and roles, it prioritises breeders’ rights and treats them as commercial rights.
UPOV creates a proprietary right around varieties and commodifies varieties, by allowing the breeder to control the domestic and international sale of the variety.
UPOV protects new varieties only if they are novel, distinct, uniform, and stable. This approach neither prioritises nor incentivises practices committed to enhancing biodiversity. The logic is primarily industrial or commercial.
UPOV and the US patent system globally combined have led to a global concentration of power of seed and plants by a relatively small number of companies. While peasants and indigenous peoples and farmers in the global south often cultivate what is referred to as landrace varieties. This is the most common practice globally speaking, and UPOV does not address this.
Michael defined landrace varieties as “local varieties of domesticated plant species that have been developed largely in adaptation to natural and cultural environments in which the plants live.”
Landrace varieties generate a relatively high level of genetic variation. Although they may not yield much on an individual plant basis, they create incredible stability in the face of adverse conditions.
Finally, Michael reiterated that UPOV engages with farmers’ rights in a limited way – by treating farmers’ political and legal powers as privileges.
Article 15(2) of UPOV gives member states the option of allowing farmers to save, use, exchange, and sell farm-saved seeds.
Most signatory countries have included this option in their domestic legislation. However, these farmers’ rights according to Article.15 (2) of UPOV must be mitigated against “safeguarding the legitimate interest of the breeder.” Based on this, therefore, in some places, such as the European Union, farmers have to pay a small fee for this so-called ‘right’.
Although exceptions are made for smallholder farmers, the logic here is that this is not a right, but a privilege. Breeders’ commercial rights are the norm, the rule, the standard, and farmers’ ability to save and share seeds is an optional exception that is secondary to those breeders’ rights and, therefore, treated as a privilege that farmers should be grateful for, even under limited conditions.
Ms Sussanah Chapman: Gender Dimensions of Farmers’ Rights.
Susannah presented her work on gender dimensions of farmers’ rights, in particular, farmers’ seed management in the Gambia. Her research explores the relationship between changing practices of farmers’ seed management and state interventions.
She stated the fact that she understands that it may seem odd that she was referring to the Gambia, a country that is not a state party to the Plant Treaty. However, the legal and policy landscape relating to seed markets and varietal innovation in the Gambia was shifting in ways that make thinking about farmers’ seed-saving, exchange, and innovation relevant for emerging policy.
More importantly, the case at hand presents a way to reflect on gender considerations related to farmer’s rights more broadly. Also, it provides a starting point to think with gender, about innovation, reward, exchange, and access, and this is because agricultural production is strongly gendered by geography, by crop, and by the degree of participation in market production.
This gender dimension of production extends into access to land, agriculture implements, technologies, and labor.
According to Susannah, while women can own land, much of the land they work is owned by their husbands, their families, or families of their husbands. Men tend to have more access to labor within the household, and the land they work tend to be better suited for the use of labor-saving technologies like tractors.
Many of the gender production relations arrangements in the Gambia are merged alongside the rise of commercial peanut production that intensified in the 19th and 20th centuries. Today in many parts of the country, men tend to grow millets, peanuts, and sorghum, while women tend to cultivate rice, which is usually for household consumption.
Of the major crops, peanuts are the premium cash crops, so men are more involved in cash crop production, and women when they do grow varieties, such varieties are bred and released by formal breeding programmes.
The effects of these gender relations on seed management are multiplex.
The different crop species managed by men and women show very different degrees of varietal diversity, which is somewhat related to crop biology, with rice showing a greater rate of diversity because of out-crossing rates.
Women cultivate far more varieties of rice than men cultivate varieties of millets and peanuts. Also, rice is more likely to produce unique off-types that can be selected into new varieties.
In this context, women who interact with rice, because they cultivate it, tend to be more involved with maintaining crop diversity and developing crop diversity.
Another effect of this is that men and women tend to access and exchange seeds quite differently.In thinking through what gender difference is like in terms of farmers’ rights, Susannah opined that she was drawn two questions, particularly her interest was in how thinking with gender might shape considerations of Article 9, regarding the protection of TK, and also how it might shape considerations regarding equitable participation and sharing of benefits.
In thinking through the questions, her point of departure was the Stakeholders Consultation on Farmers’ Rights ‘African position paper’ 2016, particularly, the paper’s recommendation that farmers’ rights must be treated as collective rights and not individual rights. Also, the need to provide incentives to farmers through seed royalties for their knowledge related to plant varieties in the same way commercial breeders receive royalties for their protected varieties. At the same time, finding ways to accommodate the collective and cumulative character of innovations produced by farmers.
This recommendation in the position paper is central to suggestions about how to realise Article 9.2a and 9.2b of the Plant Treaty, in the context of Africa.
In a case she discussed, she explored gender dimensions of farmers varietal innovations, to reflect on the recommendations, in the hope that this might generate other useful questions about what is seen as the collective and cumulative character of farmers’ innovation and particularly how equitable participation ensures benefits from these innovations.
In the rice farming region where she worked in the Gambia, it was not uncommon for novel off-types to appear in rice fields. Off-types are plants that possess different physical characteristics from the population in which they emerge.
According to Sussanah, many farmers, upon finding an off-type, will select it for seed and set it aside for trial in the following planting season. In some rare instances, a farmer may select the off-type into a new variety. Many farmers, therefore, regarded such individual acts of selection and trial as the first step in varietal development, and the final stages of which required widespread sharing in cultivation among many farmers.
Significantly, genetic analysis of these farmers’ selected rice fields in the Gambia showed levels of genetic uniformity, similar to that of formally bred rice varieties.
Because women tend to work with rice more than men, many of the farmers who experiment in this particular way are women. Although men do a lot of varietal selection, they do it to maintain varieties over a season. Besides, there are also local accounts of men who select novel off-types of rice and develop them into new varieties.
Men and women who do this type of work were equally regarded and recognised for their work.
Often this recognition was conferred to the naming of new varieties after those who had selected them. In this way, farmers usually acknowledged the singular work of varietal innovation, even as they also insisted that it was nonetheless a collective process.
Records exist dating to the 1940s about the fame that farmers, particularly women, might achieve through the development and distribution of new rice varieties.
In the past, it seemed that women were more likely to sell these newly developed varieties, nowadays, women do not sell rice seeds in that way, as the practice is now seen as being morally problematic.
One striking feature of this social recognition of innovation was that there was a kind of equal opportunity aspect to the way farmers talked about recognition. Even though men, particularly those from landholding families might have more power to control the access to other types of resources, i.e, land and labour, recognition for and the benefits of developing a new variety might be attained by women, and even those who did not own land on which they selected new varieties.
According to Susannah, in her conversation with farmers, she noticed an insistence on a singular and collective dimension of crop varietal innovation. Farmers spoke of a strong obligation to share seed widely.
Alongside these collective accounts of varietal innovation and its benefits, farmers also discussed the recognition and reward that might be attained by particular people. This raised questions in her mind about how certain types of innovation were described as individuals, while others were described as collective. It also raised questions about the sharing of benefits.
On a concluding note, when innovation is conceived as collective, it may be harder to see some of these conceptions of individual rewards, and where there is the prospect that the rewards may be translated into new forms of value, such as monetary payments and royalties, new questions about equitable benefit sharing emerge alongside existing practices of individuated recognition and reward.
Ms Yolanda Huerta: UPOV’s Plant Breeders’ Rights System and Farmers’ Rights.
Yolanda started by saying that the UPOV Convention and the Plant Treaty are compatible and complement each other, contrary to the view held by Michael. She also reiterated that it was important for the UPOV secretariat and the Plant Treaty secretariat to work together to achieve common goals.
She shared the UPOV mission statement, which is “to provide and promote an effective system of plant variety protection to encourage the development of new varieties of plants, for the benefit of society.”
She opined that breeders’ rights would naturally not exist without farmers making demands for improved varieties. Breeders’ rights, therefore, translate to farmers’ benefits and meeting the needs of society. It is the needs of the farmers and the society that gives the breeders an idea of what to develop to continue the cycle of mutual benefits.
As of today, UPOV membership is spread across all the continents, with 76 members and 95 states, including two intergovernmental organizations: African Intellectual Property Organisation (OAPI) and EU.
She made mention of the fact that, for states to become UPOV members, they are required to develop frameworks that allow them to provide for the basis of international co-operation.
As of today, therefore, there are around 40 states and organisations working towards establishing plant varieties protection under the UPOV Convention.
One country that recently assented to the UPOV treaty is Egypt, and according to the head of the Egyptian delegation to the UPOV council, the UPOV membership was very important for all types of farmers in Egypt, especially the smallholder farmers. Furthermore, she highlighted that the availability of improved varieties that were adapted to climate change was crucial for small farmers to get quality seeds at a fair price, to produce nutritious foods and meet the demand of a growing population, and also to provide farmers with extra opportunities and to improve the income of farmers.
According to her, the key question to ask is, how does plant variety protection (PVP) and UPOV membership provide a basis for food securing economic benefits for farmers, while mitigating and responding to climate change?
The Intergovernmental Panel on Climate Change (IPCC) report explains the importance of plant breeding to develop improved varieties that are resistant to drought, flood, heat, and salinity, which also respond to the challenges of climate change.
On the possibility of how PVP and the development of smallholder farmers can go hand in hand, Yolanda cited a study conducted in Vietnam which looked into the experience of Vietnam, 10 years after becoming a UPOV member, from 2006 to 2016.
According to the study, the current annual yield without access to the improved varieties would be lower by 60 per cent for rice, corn 90 per cent, and sweet potatoes 27 per cent. Also, it was revealed that the quality of the lives of farmers has increased, income-wise, by at least 20 per cent, which is a key element for the development and benefit of farmers.
One important factor to note is that farmers can become breeders, given that some of the most successful breeders are comparative farmers. Examples include a group of subsistence farmers in a rural area that developed a new variety of an ornamental flower, and through that, enabled the building of schools and developments in that particular region. Further information on this can be accessed on the UPOV website.
While addressing one of the comments made by Michael concerning the differences between protected plant varieties, unprotected plant varieties, landraces, and wild population, she pointed out that the UPOV treaty only addresses plant varieties, with particular exceptions, which are private, commercial and farm-saved seeds. However, anything that relates to unprotected plant varieties, landraces, and wild populations are outside the UPOV or PVP system. They are regulated by other international treaties and the applicable legislation.
Concerning how the treaties relating to plant genetic resources and PVP are compatible and complementary, she stated that there are 77 states and the EU that are bound by both the Plant Treaty and the UPOV convention, bringing the important provisions of the two treaties in a complementary and supportive manner.
As regards enhanced biodiversity, which was also made mention of by Michael , she opined that enhanced biodiversity is at the heart of the work of breeders, because it will be impossible to continue breeding new varieties if it was not possible to access germplasms and making benefits for those who have a key role in conserving wild germplasms.
For example, a company that accessed germplasms in Argentina developed new varieties that were commercialised. From the commercialisation, 50 per cent of the royalty was given back to the provinces, to enhance the conservation measures of the natural resources, to further prevent the erosion or loss of their natural habitat.
She concluded on the note that there was a need to learn more from one another, to share information. She believes a lot of information that has been shared about the UPOV during the webinar that will benefit from further clarification, as it was difficult to embark on the clarification within a 10 minutes window. This was based on the fact that some inaccurate information might have been shared by some earlier speakers, on UPOV, the international dimension, the diversity of breeders, and how farmers work with breeders.
Finally, the key objectives of food security were common to both UPOV and the Plant Treaty, therefore, there was enough space for parties of either divide to learn more about each other.
Ms Isabel Lopez Noriega: Consultative Group on International Agricultural Research (CGIAR) and Farmers’ Rights.
Isabel began her presentation by defining the role of the CGIAR.
According to her, CGIAR is a global partnership that unites international organisations that engage in research for food security, and it relies on more than 3, 000 research and development partners, which include national governments, academic institutions, global policy bodies, and Civil Society Organisations (CSOs)
An important part of CGIAR is the gene banks. Ten g CGIAR centres maintain more than 700, 000 accessions of staple crops in trust for the benefit of humanity.
In 2016, eleven countries signed agreements with the Plant Treaty’s Governing Body under Article 15 of the Plant Treaty, putting the international collection under the auspices of the Plant Treaty. Since then, in-trust collections maintained by these centres and plant genetic resources derived from accessions are transferred under the Standard Material Transfer Agreement’s – terms and conditions of the multilateral system of access and benefit-sharing.
The CGIAR research portfolio is articulated around Seven agrifood systems programmes, focusing on staple crops, but also livestock and fish. It also has four global integrating programmes which cut across the different agri-food systems programmes. Coupled with these, there are four supporting platforms, one of which is the CGIAR genebanks platform.
Farmers’ rights are recognised in the CGIAR principles on the management of intellectual assets. These principles state how CGIAR must manage the products of research work. It also states the CGIAR principles, the general principles that manage the acquisition of germplasm, and knowledge for the research work.
The guideline for the implementation of the intellectual assets principles proposed practical measures for the actual recognition and protection of farmers’ rights. Some of these measures include ensuring that Free Prior Informed Consent (FPIC) of farmers that provide genetic resources and traditional knowledge is given to the centres, also, the FPIC is obtained, taking into account community protocols and practical engagement of farmers.
Another measure for recognising and protecting farmers’ rights is by being involved in farmers’ research and development projects, building and promoting farmers local institutions and practices, raising awareness among farmers organisations about the viability of planting genetic resources in CGIAR international genebanks, facilitating access to these plant genetic resources to farmers, involving farmers representatives in the processes for defining the research priorities of the centers, and getting back to farmers who have provided material information with the research result.
All the work that CGIAR centers do is aimed at benefiting smallholder farmers. Moreso, CGIAR contributions to farmers’ rights fit into Article 9.2.b of the Plant Treaty, which refers to farmers’ rights to equitably participate in the sharing of benefits arising from the utilisation of plant genetic resources for food and agriculture.
CGIAR centres work with a range of national departments to ensure that the products of CGIAR researches are up to the national conditions and delivered to the farmers as equitable beneficiaries.
The traditional modus operandi of CGIAR is to partner with national research and development organizations, however, this does not mean that CGIAR does not engage farmers’ communities, and individual farmers directly.
Various CGIAR centres carry out projects that tend to support farmers’ efforts to conserve, manage, and benefit from local biodiversity. These projects include several activities: the development and application of some methods to identify trends in the state of biodiversity conservation, the use of biodiversity in erosion control, biodiversity at different scales-farms, communities, and large scales. These projects also include activities to enhance the management and use of the farms.
Some of these projects also seek to enhance linkages between ex-situ and in-situ conservation efforts for more dynamic conservation of plant genetic resources by involving national and international gene banks, CSOs, and national organisations. The idea is to apply both traditional and modern processes and technologies, including molecular analysis to conservation, for a better understanding of the diversity existing in farming and genebanks, identifying existing gaps, identifying promising traits and genes, etc.
Often these facilities seek to create market chains that allow farmers to sell traditional crops and varieties at local, national, and sometimes international markets.
Some examples include the field rice and international rice research institute project on rice varieties in the Philippines, the biodiversity project called Seeds for Needs in Ethiopia and India, and the project for the participatory characterization of cassava landrace agro-biodiversity.
Another way in which centres contribute to farmers’ rights is by facilitating access to germplasms. Improved germplasm from CGIAR breeding programmes contribute billions of dollars to the livelihoods of farmers worldwide.
She concluded with her excellent discussion on participatory socio-economic research.
Within CGIAR programmes, plant research and breeding are accompanied by Socio-economic studies, which are aimed at understanding the challenges that smallholder farmers face in general, from access to education, to crop adaption limitation, to market access constraints. These studies allow CGIAR centres to orient research and development efforts comprehensively and efficiently.
Socio-economic research with farmers cover a wide range of issues, from the role gender plays in the access to agricultural inputs, such as seeds, and also to local and national food markets, to socio-economic factors that contribute to the adoption of new technologies by farmers, including the role of policies and institutions in facilitating or hindering farmers participation in decision making.
Mr James Gathii: International Economic Law and Farmers Rights.
James, speaking in his capacity as an international lawyer and in particular, and international economic lawyer who has been looking at some of the issues many of the panelists have spoken about, but from a different perspective, informed the gathering, that he had one main point that he wanted to raise.
According to him, many of the issues that have been raised in the context of the discussion, relate, in his view to the right to self-determination and right to development.
Both of these norms of international law recognise the right of peoples and countries to freely choose their economic, social, and agricultural systems without outside interference or constraint of any kind, and to determine with equal freedom, their model of development, which is a foundational principle of international law.
To James, whenever he thinks of the principle of self-determination, the right to development, and the attendant issues, what comes to mind is the book written by Mohammed Bedjaoui, titled Towards a New International Economic Order, where the Mohammed opined that “the right to self-determination and development were inherent to, built into, and formed an inseparable part of the right to self-determination.”
The context here is that, after independence from colonial rule, developing countries fought to reorder the international economy, not just to get political freedom, but economic freedom as well, to be able to independently determine how they could organise their economies going forward.
This clarion call on the right to development and reordering the economies were contained in the Agenda of the New International Economic Order and the Charter of Economic Rights and Duties of States, which, unfortunately, were ridiculed by first world scholars.
The reason that developing countries supported this idea of the right to development and self-determination, according to Mohammed Bedjaoui, was to ensure that developing countries get an equitable share in the economic and social well-being of the world so that 4/5th of the world’s population could benefit and not live in poverty, given the promises of the system of the United Nations established after the 2nd world war.
To James, this was the context from which the discussants should understand the discussion being had, to wit, where does the authority lie, to decide the type of IP protection to be given to plant varieties?
Under Article 27(3)(b) of the TRIPS Agreement, this latitude is limited. It is not prescriptive, as it gives WTO members a choice on the modality and level of protection available.
Having said that, it is important to realise there is a context as well. The context being that as at 2012, the global commercial seed market was estimated at 44 Billion dollars, with 9 seed companies controlling close to 61 per cent of the market, and 3 companies only controlling 45 per cent of the global market, he believed this was the context in which those that thought the New International Economic Order (NIEO) was necessary, raised such debates in the international law.
Flowing from this, James narrowed his discussion to focus on the problems of small scale farmers and the question regarding what laws best fit that context.
In the context of the Plant Treaty, the rights protected there include the protection of TK relevant to plant genetic resources for food and agriculture, the right to equitably participate in the benefits arising from the utilization of plant genetic resources for food and agriculture, and the right to participate in decision making at the national level on matters relating to the conservation and use of plant genetic resources for food and agriculture.
According to him, countries and peoples have the right to self-determination and the right to development, which means that appropriate laws will be different for different contexts, and a one size fits all system may not be very ideal to fit in every context and circumstance.
Again, leveraging on his work in international economic law, James sees similar patterns in this area (the prioritisation of plant breeders’ rights over those of farmers), in other areas of international economic law. For example, in international investment law, investor rights are prioritised over norms and principles such as human rights, or the right to the environment. These two are seen in the international financial system where the law of contract overprotects the rights of creditors and under protects the rights of sovereign borrowers.
The question then becomes, why are plant breeders’ rights prioritized over those of farmers, especially small-scale farmers? Also, why are developing countries adopting systems that seem to be inconsistent with the reality on the ground in their individual countries? Lastly, he asked, in the context of PVP systems, was there no system that is better suited than the one that most of these developing countries have adopted?
According to him, part of the explanation can be found in trade and investment agreements.
Many developing countries enter into these trade and investment agreements with countries in the Global North, with these agreements containing clauses that end up restricting the policy space the developing countries have, thereby preventing them from independently determining the type of PVP systems that are fit for their purpose.
For James, this is a pointer to one very important fact: the era of signing treaties that are not voluntarily accepted, and the very strong colonial continuities in the way particularly African countries continue to subject themselves or be subjected to treaty regimes that are not consistent with the overwhelming interest of the peoples and populations in those counties, is not over.
Although he was highlighted that African countries, in particular, are not blameless in the current agricultural trajectory on the continent, considering that African countries are well known to underfund and undermine agriculture, to fund industry and manufacturing.
From his perspective, the Plant Treaty, the CBD, the Nagoya protocol can be regarded as counter norms to the exclusive rights regime of UPOV and this is an important way to think about what is happening. That there are a set of not just overlapping and conflicting, but different ways of thinking about how to achieve what might be an ideal system for farmers, especially small-scale farmers in developing countries, most of who engage in subsistence farming, and have to sell their surplus to make a living.
In making his last point, he asserted that experience has shown that creative and imaginative sui generis PVP systems offer parties to the Plant Treaty the type of freedom to put in place mechanisms to implement all aspects of farmers’ rights in really beneficial ways, such as Malaysia, India, Philippines, and Ethiopia have done.
The final contributor to the discussions was Mr Marc de Wit, “The Relationship Between Farmers’ Rghts and Plant Breeders’ Rights.”
Marc, who comes from a long line of farmers and works for the plant breeders’ office in Canada, spoke about how things are done in Canada as regards farmers’ rights and how it is important in Canada. He echoed Regina’s position on the need to breach the divide for the realization of farmers’ rights.
According to Marc, in Canada, the diversity of farming ranges from 1,000 hectares of oilseed farms, to 1-hectare organic vegetable farm. Likewise, there is a diversity of farm types, such as livestock, poultry, oilseed grains, vegetable fruits, and fruit trees, just to list a few.
Since there is not one type of farmer, there is no one size fits all. When one recognises farmers’ rights, one has to recognise that there are different needs of farmers, so examining farmers side by side, plant genetic resources, Canada meets its obligation to the Plant Treaty and UPOV by finding a balance in implementation.
How Canada does this is by creating an avenue for farmers to participate in the decision-making process, and playing an instrumental role in decision making, not solely concerning genetic resources, but with the development and implementation of all agricultural policies.
For instance, Canada employs mechanisms for farmers to participate in parliamentary, legislative, and regulatory processes, as well as policy development and implementation. Specifically, farmers are active members of the Plant Breeders’ Rights Advisory Committee, advising the minister of agriculture on the administration of the UPOV ’91 compliance and Plant Breeders’ Rights Act.
A second example is the sharing of the benefits of plant breeding. Creating an environment that provides and promotes plant breeding through the Plant Breeders Rights Act, ensuring that farmers are beneficiaries of improved genetic resources. For example, in less than 50 years, Canada has seen the development of canola grow from an open-pollinated minor crop to a high yield high breed crop, in turn, becoming Canada’s most profitable crop to farmers.
And lastly, and most importantly is the opportunity to save and reuse seeds. Under the plant breeders rights act, a farmer may purchase a protected variety and save the harvested material for subsequent planting, however, they may not sell the harvested material for further propagation to another farmer.
Conversations are now happening in the sector on how to preserve farmers’ ability to save seed, while fairly compensating the breeder to ensure an ongoing pipeline of innovation.
Marc holds the strong view that the Plant Treaty and UPOV complement each other. Both recognise and support the critical importance of plant genetic resources of food and agriculture.
As far as Marc is concerned, Canada supports both the objectives of the plant treaty and the objectives of the UPOV convention and Canada will continue implementing these two important international instruments in a complementary manner, in other words, respecting farmer’s rights.
Reflections, Questions and Answers.
It is important to note that one of the dominant issues in this webinar was the dissimilarities or similarities that exist between the Plant Treaty and UPOV.
Panelists such as Michael and James argued strongly that UPOV was skewed in favour of plant breeders, and that the UPOV Convention in all intents and purposes made no provision for farmers’ rights, coupled with the fact that the UPOV Convention and the Plant Treaty are totally dissimilar. Conversely, panelists such as Yolanda and Marc held the view that the UPOV does make provisions for the protection of smallholder farmers and that both UPOV and the Plant Treaty are complementary.
However, there was a consensus by all panelists that the Plant Treaty protects and promotes farmers’ rights.
This, therefore, birthed a question in my mind – given the obvious disagreement on the provisions of the UPOV agreement, as far as protecting smallholder farmers are concerned, how can the disparities be addressed for the benefit of the farmers?
This position was echoed in a question raised by Uchenna Felicia Ugwu, and it reads: one drawback in applying farmers’ rights is that the language of the TRIPS Agreement and UPOV is far more obligatory and detailed than in most rules established to the CBD or the Plant Treaty. What is the FAO doing to correct that?
In answering this question, Regina stated that she did not believe the Plant Treaty can correct any language in other treaties, however, dialogues can be entered into with other treaties on interpretations of the rules. Given that these are very difficult matters (referring to the matters raised in the question), there have been dialogues, for example between UPOV and the Plant Treaty, and there is a dialogue by the technical expert group on farmers’ rights where UPOV is represented by Yolanda.
The aim, therefore, is to establish a working application of the UPOV and the Plant Treaty in a complementary manner, especially for the protection of smallholder farmers and breeders.
To Yolanda, the question was asked, of how she envisions a system that is both UPOV compliant and also protects the small-scale farmers that are also breeders?
Yolanda stated that she had worked with UPOV since 2001, and there has not been reported, any legal action by breeders against any act of smallholder farmers. Furthermore, the issues that have arisen so far have been between the middle and large farmers, because those affect the capacity of breeders to build new varieties if the practices of such farmers were toswing in such a way as to affect the ability of the breeders to recover their investment.
On what farmers’ rights should look like, Isabel opined that there is no one-size-fits-all approach to farmers’ rights.
No farmers’ rights approach will fit all the countries, given that even within a country, depending on the conditions in different areas, there may be the need to adapt the protection of farmers’ rights to particular circumstances of communities. However, one way of facilitating the definition of farmers’ rights by farmers themselves, in Susannah’s view, would be to give the farmers the space to understand the value of diversity, and the community diversity protocol provides a viable starting point.
James, in answering the question on practical examples of farmers’ rights he would like to see, especially in Africa? He proposed that the best place to begin would be for African countries to increase the funding for farmers, the same way the governments have shown support for industries and other sectors of the economy.
To Michael, the question was asked how he would, as the UN special rapporteur on right to food, envision a human rights approach to farmers’ rights, since in his presentation, he had made a case for the UN’s declarations as a way of relating farmers’ rights, with human rights.
He answered by stating that, what those UN declarations do is, they empower people, which is a reminder that people are rights holders, not stakeholders.
In addition, what these declarations do is to start the conversations with the peoples themselves, locally, with already existing norms, practices that have been ongoing and treat those as the norm. I.e., the UN declarations allow and adopt cultural diversity
People are entitled to drive the process, and to be present to drive the agenda, therefore everyone else, whether, breeders or companies or governments have an obligation to meet the demands.
The role of UN in all of these, therefore, is basically to listen to each individual country and provide them with the resources to achieve their goals.
CONCLUSION
The webinar was an eye-opener. It was my first in-depth introduction to the conversations surrounding the protection of farmers’ rights, plant variety protection, and plant breeders’ rights.
The webinar, however, more than anything else, brought to fore the existential need for the Plant Treaty and UPOV convention to establish a harmonious relationship, to safeguard the protection of farmers’ rights, especially smallholder farmers.
There exists an anti-UPOV sentiment because UPOV appears to be more pro plant breeders than pro farmers, with several speakers pointing to the fact that UPOV rather treats farmers’ rights as privileges, when compared to the Plant Treaty and CBD.
The protection of farmers’ rights, especially the rights of small-holders farmers, from all indications, holds an important place in these conversations, and the reasons are quite glaring. Smallholder farmers have a right to save, use, exchange, and sell farm-saved seed, and to also develop varieties, from which they can receive royalties, upon commercialization. However, without requisite and adequate protection, farmers’ rights will remain a mirage.
Consequently, governments, especially African and Global South governments, must ensure that farmers’ rights are adequately protected. This requires the enactment of sui generis laws, tailored to suit the needs and interests of the local farmers within their territories.
Finally, the discussion around gender equality in farming is an ongoing one. One which needs to be continuously had, until women, like the women in the Gambia, can own farmlands, without having to rely on their husbands, their husbands’ families or their families, before having access to farmlands and farm tools.
