Conclusion

Scholars have carried out research on the regime constellation for PGRFA - what Oberthur and Stokke (2011) or Jungcurt (2007) call ‘regime complex’ - which essentially includes five legally binding international agreements: the UPOV Convention, the CBD, the TRIPS Agreement, the Treaty and the newly adopted Nagoya Protocol.

wherever there are several legally binding international agreements dealing with at least partially overlapping issues, a conflict between them may arise. Such conflicts narrow the leeway that parties to more than one of the treaties have for implementation and may thus also reduce the treaties’ potential for reaching their objectives.

(Gerstetter et al., 2007: 259)

These international legally binding agreements aggregated in a regime com­plex influence the design and implementation of other regulatory instru­ments (Fowler, 1994: 170-184), whether national, regional or international. Indeed, regarding PGRFA, the design and implementation of the CBD, UPOV and TRIPS have influenced the negotiations on the Plant Treaty and have contributed to creating a multilateral system where IPRs are explicitly recognized and integrated in the ABS mechanism put in place. Andersen has looked in depth into the regime overlap and interaction and the result­ing regime constellation for the management of PGRFA. The effects of this constellation were quite negative regarding the access to PGRFA and the development and recognition of the concept of FRs, and the regime developed has not resolved the ‘tragedy of the commons’ issue for PGRFA (Andersen, 2008: 352; Brush, 2005: 108-109). While it is outside the scope of this thesis to study this regime constellation in detail, it is interesting to note that Andersen finds that

[f]rom the history of regime formation and interaction regarding PGRFA management, it appears that developments have been dominated by two main fronts, with some bridge-builders and issue-specific factions in­between.

(Anderson, 2008: 173)

It is clear, therefore, that the question of access to genetic resources has strong political and economic forces, superseding the environmental and social objec­tives of the CBD, the IU or the Treaty (Jungcurt, 2007: 2). The tensions resulting from this situation are examined in Chapter 3.

Notes

1 The study of the origins of agriculture and the historical development of farming has led to the development of several theories. The analysis of these theories fall outside the scope of this research, but further information can be found inter alia in the following work (Sauer, 1952; Reed, 1977; Rindos, 1984).

2 Charles Darwin is recognized to be the first scientist addressing the origin of species (Darwin, 1859). However, regarding plants evolution Alphonse de Candolle first dis­covered the geographic origin of cultivated plants. Alphonse de Candolle (1806-93) was a French-Swiss botanist who was an important figure in the study of the origins of plants and the reasons for their geographic distribution. He also created the first Code of Botanical Nomenclature (Candolle, 1883). This work is his most famous and influential book, tracing the geographic origins of plants known to have been cultivated by humans. It is one of the earliest studies of the history of crop domestication, and an important contribution to phytogeography.

3 Gregor Johann Mendel (1822-1884) is known as the ‘father of modern genetics', because he demonstrated that the inheritance patterns of certain traits in pea plants. His con­tributions to the new science of genetics are now referred to as the laws of Mendelian inheritance.

4 Nikolai Ivanovich Vavilov (1887-1943).

5 A ‘centre of origin' can be defined as the geographic region in which a crop first arose. The notion of centre of origin has been subject to debates and is commonly replaced by the expression ‘centre of diversity', which can be defined as the geographic region in which the greatest variability of a crop occurs. A ‘primary centre of diversity' is the region of true origin of a species; while ‘secondary centres' are regions of subsequent spread of a crop.

6 Dirzo and Raven warn that ‘[f]or the past 300 years, recorded extinctions for a few groups of organisms reveal rates of extinction at least several hundred times the rate expected on the basis of the geological record. The loss of biodiversity is the only truly irreversible global environmental change the Earth faces today'.

7 The International Biological Programme was an effort between 1964 and 1974 to coor­dinate large-scale ecological and environmental studies (Pistorius, 1997: chapter 2; Frankel and Hawkes, 1975: chapter 1).

8 The CGIAR grew out of the international response to widespread concern in the 1950s, '60s and early '70s that many developing countries would succumb to hunger. Experts predicted widespread and devastating famine between 1970 and 1985, with hundreds of millions starving to death. The roots of the CGIAR go back almost 3 decades before its formal inauguration, beginning with a collaborative programme between Mexico and the Rockefeller Foundation. High-yielding semidwarf varieties of wheat developed in Mexico in the 1950s and of rice developed in the Philippines in the 1960s demonstrated the potential of publicly funded international agricultural research to unlock the productivity of smallholder farms in the developing world. A series of senior consultations - known as Bellagio conferences - invited the World Bank to set up a consultative group for inter­national agricultural research, similar to other groups that it had created to coordinate and support development in individual countries.

9 The Green Revolution refers to R&D and technology transfer initiatives, particularly in the developing world, that increased agricultural production worldwide, beginning most markedly in the late 1960s. This movement was led by Norman Borlaug, the ‘Father of the Green Revolution', who won the Nobel Peace Prize in 1970. It was credited with

History of the seed regulatory setting 45 saving over a billion people from starvation, involved the development of high-yielding varieties of cereal grains, expansion of irrigation infrastructure, modernization of manage­ment techniques and distribution of hybridized seeds, synthetic fertilizers, and pesticides to farmers. However, today the Green Revolution is widely criticized by some authors for several reasons, including the erosion of a wide diversity of local and traditional varieties of crops. Lappe et al. (1979) condemn the social and economic consequences of the Green Revolution because the boost of food production in some developing countries replaced valuable traditional varieties with high-yielding new varieties of rice and wheat. For an assessment of the movement see Tangley (1987).

10 After 20 years of existence within FAO, the IBPGR became an independent intergovern­mental organization, named IPGRI (International Plant Genetic Research Institute), and its scope of research was widened from the initial emergency collection of plant genetic resources to the larger promotion of conservation of plant genetic resources through use. Reflecting the fact that the mandate of the organization now covers all forms of biodiversity (i.e. plants, animals, microbials, etc.), it integrated one of the other IARC - the International Network for the Improvement of Banana and Plantain, INIBAP - and changed its name to Bioversity International since 2006, although the legal name remains unchanged.

11 A recent study on the genetic diversity of commercial varieties of vegetables and apples states that the number of apple and vegetable commercial varieties between 1903 and 2004 has been sustained (Heald and Chapman, 2012). However, maintaining numbers of commercial varieties available on the market does not mean that genetic diversity in situ is not declining, nor that the genetic diversity of the commercial varieties on the market is maintained or increased. Indeed, other studies on wheat varieties, show that the genetic diversity of varieties commercialized has diminished, even though more varieties might be available on the market (Goffaux et al., 2011; Perronne et al., 2016).

12 Genetic vulnerability may be described as the poor deployment of genetic diversity in agricultural production systems.

13 The Concise Oxford English Dictionary defines ‘to commodify' as ‘to turn into or treat as a mere commodity'. The Collins English Dictionary goes further saying that ‘commodi­fication' is ‘the inappropriate treatment of something as if it can be acquired or marketed like other commodities'. Radin (1996: xi) defines commodification as ‘the social process by which something comes to be apprehended as a commodity, as well as to the state of affairs once the process has taken place'.

14 Smolders (no date: 6) and Bordwin (1985: 1057) both recognize that it is hard to value PGRFA. However, Ten Kate and Laird (2000) have attempted to put numbers on the financial value of the commercialization of agricultural products.

15 Herdt (1999: 5) goes on saying that ‘[t]hese techniques permit one to routinely distinguish any individual living organism from any other, regardless of how similar they may look. This makes it possible to identify the ancestors of any plant variety and hence the develop­ers of a variety with near certainty, just as in the animal world a sample of DNA can be matched to any individual with near certainty. That certainty provides a way to exercise property rights over seed varieties because now one can prove who created the original variety'.

16 Hope says that the merger-mania was driven primarily by the need to avoid high transac­tion costs associated with clearing multiple IPR (cited in Aoki, 2008: 113).

17 A World Bank Report stressed that the way IPRs are implemented affects the structure and concentration of the seed industry and raised concerns for policymakers in the developing world (Louwaars et al., 2005).

18 According to Herdt (1999: 8-9), ‘[t]he business plans of the mega-seed companies seem straightforward: control everything from genetic engineering of seeds to the selling of seeds to farmers, to marketing plant-grown drugs, modified foods, and industrial products. They aggressively employ patents to claim intellectual property and defend those claims equally aggressively'.

IPR are said to enable the owner to capture the full value of his individual investments. This aims at encouraging everyone to put time and labour into the development of such resources. The same evaluation is made for other fields than agriculture where IPRs have developed significantly. An example with the biomedical sector can be found in van Zimmeren (2011: in particular part II). However, Chiarolla (2006: 43) doubts that the positive correlation between stronger IPR protection and a higher level of private capital investment in agricultural R&D leads per se to the creation of innova­tion incentives for private behaviour and therefore enables the increase of welfare for society as a whole. Chiarolla refers to a study by Eaton and van Tongeren demonstrate that increasing IP protection of plant varieties with either PBRs or patents had poten­tial negative effects.

Plant Patent Act of 1930, Pub. L. No. 71-245, 46 Stat. 376 (1930) (Evenson, 2005: 192). Sexually propagated plants are those reproduced through ordinary seeds.

US Plant Variety Protection Act, 1970 (PVPA), 7 USC. §§ 2321-2582.

UPOV was modified several times, resulting in different Acts, with Member States con­tracting either to the 1961, 1961 amended in 1972, 1978 or 1991 Act.

Diamond v Chakrabarty, 447 US 303, 206 USPQ 193 (1980); see also the subsequent case Ex parte Hibbard, 227 USPQ. 443 (1985).

The 1991 Act however adds restrictions on research and breeding activities.

The TRIPS Agreement constitutes Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization (WTO) and was adopted in 1994. It strengthens the rec­ognition of property rights over genetic resources (Cullet, 1999).

According to Bosselmann (1996: 128), ‘the expansion of an international [property right] regime has not only encouraged the technology responsible for potential problems with introduced species, but arguably has created a monopoly situation where the bulk of agricultural seeds are owned by a few, large multinational firms with the resources and technology available to be competitive in this area. Such a monopoly rights system encourages and seeks to solidify an agricultural system that is environmentally damaging and incompatible with the concepts of sustainable development'.

Other regulations such as those controlling plant health inspection, pest control in plants and environmental protection also impact the management of PGRFA (Evenson, 2005: 204); however, they fall outside the scope of the present study.

For an opposite view, see Harlan (1995: 248), saying that ‘[fo]r one thing, nothing is stolen. No germplasm is removed from a country or farmer's field that does not also remain. The small samples sent back to the collector's homeland may not even be very representative of the germplasm available and are no loss to either the grower or the nation. Furthermore, little germplasm moves from “south” to “north”. [...] The “north” invests the money for conservation, not the “south”. [...] The major movement of germplasm is east to west and west to east'. While this statement might have been true at that time, in 2017, I believe it is not so anymore. Indeed, the development of modern biotechnologies and of IPRs now allows companies to hinder access to a variety providing from a farmer's field. Even though the seed remains in the field, the fact that the farmer may not use it anymore without paying royalties to the company detaining a patent on a gene of that variety equates to a ‘removal'.

International Undertaking on Plant Genetic Resources, FAO Conference Resolution 8/83, adopted 23 November 1983.

The FAO Conference is the sovereign governing body of the organization. It deter­mines the policy, approve the budget of the Organization and exercises the other powers conferred upon it by the Constitution, inter alia to make recommendations to Member Nations and Associate Members concerning questions relating to food and agriculture, in order for them to be reviewed and implemented through national action; to make recommendations to any international organization regarding any matter pertaining to the purposes of the Organization. It comprises all Members and Associate Members.

C 79/REP - Report of the Conference of FAO, Twentieth Session, Rome, 10-28 Novem­ber 1979.

C 81/REP - Report of the Conference ofFAO, Twenty-first Session, Rome, 7-25 Novem­ber 1981, see FAO Conference Resolution 6/8.

The GRULAC is one of the five unofficial geopolitical regional groupings of the UN, with 33 Member States.

The G-77 is a loose coalition of developing nations within the UN fora, which nowadays include a total of 132 countries.

C 83/REP, at §§ 275-285 - Report of the Conference of FAO, Twenty-second Session, Rome, 5-23 November 1983.

The delegations from Canada, France, Germany (the Federal Republic of Germany) Japan, Switzerland, the United Kingdom and the United States of America made reserva­tions with respect to Resolution 8/83 (the International Undertaking on Plant Genetic Resources) adopted in the 22nd Conference of FAO in Rome, November 1983. New Zealand expressed reservations regarding the IU text since it did not take into consider­ation breeders' rights. The same seven countries and the Netherlands also expressed res­ervations concerning Resolution 9/83 on the establishment of a Plant Genetic Resources Commission, also adopted in the 22nd Conference of FAO. A note should be made on the fact that the undertaking was not a legally binding international agreement, and that therefore, the various reservations, interpretations and understandings, expressed either verbally or in writing by member nations, are not to be considered ‘reservations' within the meaning given to that term under international law and are not binding on the other Member Nations.

FAO Conference Resolution 9/83, adopted 23 November 1983.

The scope of application of the CGRFA was first limited to plants, but it was broadened to all components of agrobiodiversity in 1995 during the 28th session of the FAO Confer­ence. See Conference Resolution 3/95, in C 95/REP, §§ 65-69 and 10th session of FAO Council CL 110/REP, §§ 13-14.

According to Stoll (2009: 6), ‘[t]he common heritage principle, developed through UN negotiations concerning the uses of the deep seabed and its resources, contains little more than an idea of free access and an air of distributional justice. The same holds true for the Undertaking: it had little to say in view of the fact that such plant [genetic resources] are not a wealth to be distributed, but require investments into the conservation of centres of origin and landraces as well as into improvement of breeds, which is mainly done by private breeders. Today, it looks quite strange that the Undertaking proclaimed such a principle to be applicable to virtually any germplasm with relevance for food and agricul­ture, including wild species, landraces and highly developed commercial varieties. Indeed, the undertaking was soon modified'.

IU, Article 2.1. This principle was reiterated several times in later FAO Conferences: see C1985, § 294: on the importance of ‘unrestricted exchange of PGR'; C1989 § 105: ‘The draft resolutions, preserving the principle of unrestricted availability of germplasm, recognized the rights of both donors of technologies and donors of germplasm to be compensated for their contributions through the simultaneous recognition of plant breeders' and farmers' rights. The Conference recognized that both resolutions were intended to lay the basis for an equitable and lasting global system for sharing the costs and benefits of the world's plant genetic resources for present and future generations' (emphasis added).

Helfer (2004: 218-219) notes that ‘[a]lthough the Undertaking was merely a nonbinding statement of principles, it was opposed by the United States and some European govern­ments who argued that the document conflicted with a multilateral treaty - the [UPOV] - but also with their national patent laws, which grant intellectual property rights in isolated and purified genes'.

Agreed Interpretation of the International Undertaking, Res. 4/89, UN FAO, 25th Sess., UN Doc. C/89/24 (1989) being Annex I to the International Undertaking; Farmers' Rights, FAO Res. 5/89, being Annex II to the International Undertaking; FAO Res. 3/91 being Annex III to the International Undertaking.

For more details on the role and influence of NGOs in the negotiation process, see Chap­ter 4 below.

In the access and benefit-sharing process, Garforth and Medaglia (2006: 144-146) note that NGO actors were much involved.

FAO Conference Resolution 4/89.

Ibid., last §.

FAO Conference Resolution 5/89. The concept of Farmers' Rights is explained further in chapter 3.

FAO Conference Resolution 3/91. Although Bordwin (1985: 1063) points that PGRFA were already subject to the sovereignty of the State in which they are located.

See also Stoll (2009: 7), who argues that ‘[t]wo years later, the FAO conference again modified the system of the Undertaking. At the FAO conference it was decided that “breeders' lines and farmers' breeding material should only be available at the discretion of their developers during the period of development”, and thereby acknowledged the proprietary character of such lines. However, in turn, the Conference decided “nations have sovereign rights over their plant genetic resources”. Thus, within just a few years, the former “common heritage” has been divided up into various proprietary claims'. See also Mgbeoji (2003).

See chapter 2 for some information on biopiracy.

The objective of the GPA was to identify the technical and financial needs for ensuring conservation and promoting sustainable use of plant genetic resources (Frison et al., 2011: 281-291).

The debate around the ownership of the material conserved in genebanks is a very inter­esting issue and would require deeper analysis; however, this question falls outside the scope of this study and will therefore not be dealt with in depth.

Convention on Biological Diversity, 5 June 1992, 31 I.L.M. 818 (entered into force 29 December 1993).

Stoll (2009: 4) reminds that ‘the long-standing sovereign right of states over their natural resources, [...] is based on the international law principle of territorial sovereignty and has been further developed by UN bodies, and [is] reiterated once more in Article 3 CBD and - in view of biological resources - in the preamble of paragraph 4'.

Resolution 3 from the Nairobi Final Act (the relationship between the Convention on Biological Diversity and the promotion of sustainable agriculture) was adopted 22 May 1992 in Nairobi.

See also Garforth and Cabrera Medaglia (2006: 143-144) arguing that the lack of intra­governmental cooperation hinders legal reform for ABS.

Principle 21 of the Stockholm declaration provides that ‘States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national juris­diction'. Declaration of the United Nations Conference on the Human Environment, Stockholm 16 June 1972, 11 ILM 1416 (1972).

However, one may question how realistic this assertion is if the resources have left the country for example. Furthermore, how is such an approach to be enforced?

Two of the best-known examples are Executive Order 247, Prescribing Guidelines and Establishing a Regulatory Framework for the Prospecting of Biological and Genetic Resources, Their By-Products and Derivatives, for Scientific and Commercial Purposes, and for Other Purposes, 18 May 1995, from the Philippines; and Biodiversity Law, No. 7788, 27 May 1998 from Costa Rica.

In a very detailed study (IPGRI, 1996), Bioversity International showed that there is a wide spectrum of options for genetic resources exchange systems, ranging from a strictly

History of the seed regulatory setting 49 bilateral approach at one extreme, to an unstructured informal multilateral approach at the other. Between these two extremes lie a host of additional options which draw on elements from both ends of the spectrum.

62 CBD Panel of Experts on Access and Benefit-sharing, Costa Rica, 4-8 October 1999, document UNEP/CBD/COP/5/8 at §104.

63 The Global Forum on Agricultural Research (GFAR) is an inclusive global mechanism enabling all those concerned with the future of agriculture and its role in development around the world to come together and address key global needs. GFAR provides an open forum for stakeholders across the agricultural spectrum - from researchers and organiza­tions to farmers - to participate in collaborative discussion and action around the current and future state of agriculture. Established in 1996, GFAR was formed as a project for resource sharing - a commitment that remains the essential purpose of the Forum today. GFAR facilitates collaboration, partnerships and sharing of objectives along the complex pathways from research through to development outcomes. Its headquarters is in Rome, Italy, where it is hosted by FAO. Available at www.gfar.net/.

64 This study was well-received by Plant Treaty negotiators. It appeared useful in convincing parties for the necessity of operating a multilateral ABS system.

65 The protocol entered into force on 12 October 2014. So far, there are 104 contracting parties.

66 The International Convention for the Protection of New Varieties of Plants (UPOV) was first adopted on 2 December 1961. This Act was amended several times, first by the Additional Act of 10 November 1972. UPOV 1978 is the act of 23 October 1978. UPOV 1991 was signed on 19 March 1991 and entered into force on 24 April 1998. As of 13 October 2017, there were 75 contracting parties to this instrument (there were 70 in 2011). The evolution of these modifications reflects the general trend strengthening the rights granted. Bragdon (2004: 64) states that the ‘growth of biotechnology and the possibility of formal patent coverage created pressure leading to the 1991 revision of UPOV’.

67 Article 5(1) of the UPOV 1978 Act was interpreted as allowing implicitly farmers to re­sow or exchange protected seeds. Article 5(1) states that: ‘The effect of the right granted to the breeder is that his prior authorization shall be required for

• the production for purposes of commercial marketing

• the offering for sale

• the marketing of the reproductive or vegetative propagating material, as such, of the variety.

Vegetative propagating material shall be deemed to include whole plants. The right of the breeder shall extend to ornamental plants or parts thereof normally marketed for purposes other than propagation when they are used commercially as propagating material in the production of ornamental plants or cut flowers’.

68 In comparison, patents cover also the technical processes for the production of protected varieties.

69 1991 UPOV Convention, Article 15(2) provides as an optional exception that ‘each Contracting Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder’s right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety’.

70 1991 UPOV Convention, Article 15.1(i) and (ii); and Article 17.1, which provides a sort of compulsory licensing obligation when it states that ‘no Contracting Party may restrict the free exercise of a breeder’s right for reasons other than of public interest’.

71 In the 1991 Act, the optional exception is restricted to the following permission: ‘farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or a variety

covered by Article 14(5)(a)(i) or (ii)’. The wording of the Convention clarifies that the optional exception relates to the use of the product of the harvest by the farmer on his own holding. Thus, for example, the optional exception does not extend to propagating material which was produced on the holding of another farmer (UPOV 2009:11). For an activists’ view on the question see Grain (2007).

A more detailed analysis of this topic goes beyond the scope of the present research. However, further information can be found in the following studies from governments (Christinck and Walloe Tvedt, 2015) and from NGOs (La Via Campesina and GRAIN, 2015; Shashikant andMeienberg, 2015). Seed legislations implementing UPOV can be found on the UPOV website at www.upov.int/upovlex/en/.

A more detailed analysis of this topic goes beyond the scope of the present research.

The Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) consti­tutes Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization (WTO) and was adopted as a result of the 1986-94 Uruguay Round negotiations. It strengthens the recognition of intellectual property rights over genetic resources.

Ratification of TRIPS is a compulsory requirement of World Trade Organization mem­bership, which counts 164 members on 29 July 2016. It entered into force on 1 January 1995.

TRIPS Agreement, Part II, Articles 1 to 8 cover copyright and related rights, trademarks, geographical Indications, industrial designs, patents, layout-designs (topographies) of integrated circuits, protection of undisclosed information, and control of anti-competitive practices in contractual licences.

Article 33 provides that ‘[t]he term of protection available shall not end before the expira­tion of a period of twenty years counted from the filing date’.

TRIPS Agreement, Part II, Article 27 2. Full text states that ‘Members may exclude from patentability inventions, the prevention within their territory of the commercial exploita­tion of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law’.

3 Members may also exclude from patentability:

(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;

(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbio­logical processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any com­bination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement’.

Notwithstanding this argument, one can question whether it is the property rights regime or the way they are implemented in national seed legislations, that most impede access to seeds and technology.

For a contradictory position, see Koo et al. (2004).

3