Conclusion

With Chapters 2 and 3, I drew a complete picture of the international seed regulatory system that developed during the twentieth century and of the ten­sions that arose from it. Understanding the past system and its weaknesses is a

preliminary necessary step in order to assess the present regulatory setting (in Chapters 4 and 5) and suggest ways forward to develop a future more equitable and effective scheme (in Chapter 6).

Notes

1 A note is made, however, regarding the physical possibility of ‘privatizing’ an open- pollinated seed (protecting it with an IPR), before specific innovation occurred in agri­cultural development allowing for the control in the use of the seed.

2 Depending on their background and disciplines, authors have associated various ter­minologies and concepts to the inclusive and openness characteristics of seeds such as ‘public domain’, ‘global commons’, ‘common heritage of mankind’, ‘global public goods’, ‘pure global commons’, etc. What is important to bear in mind at this stage is the ‘public’ dimension of seeds, as opposed to privately owned rights over seeds.

3 See Figure 5.1 for the quadrant of goods showing the non-rivalry and non-excludability characteristics of a public good, in Chapter 5.

4 Batur (2014: part II) explains exhaustively the different innovation contexts according to three different types of actors, and the impact of the enclosure of agrobiodiversity on the activities of these stakeholders.

5 See also Dutfield and Suthersanen (2008:22-23) stating that the reason why commercial importance of intellectual property rights has grown considerably since the nineteenth century, and has accelerated since the 1970s, is because of the incessant and increasing pressure on businesses and national economies to be competitive.

6 Examples of such organisations are Arche Noah, Kokopelli, Pro Specie Rara, Red de Semillas, Reseau Semences Paysannes, Rete Semi Rurali, etc.

7 La Via Campesina claims to be an autonomous, pluralist and multicultural movement, independent from any political, economic or other type of affiliation. The main goal of the movement is to realize food sovereignty and stop the destructive neo-liberal process. It is based on the conviction that small farmers, including peasant fisher-folk, pastoralists and indigenous people, who make up almost half the world’s people, are capable of producing food for their communities and feeding the world in a sustainable and healthy way. See http://viacampesina.org/fr/

8 For a recent press release on the matter see ‘The Seed Treaty Undermined by the Gan­grene of Biopiracy’, posted on 15 October 2015, available at http://viacampesina.org/en/ index.php/main-issues-mainmenu-27/biodiversity-and-genetic-resources-mainmenu- 37/1886-the-seed-treaty-undermined-by-the-gangrene-of-biopiracy

9 The issue of digital sequenced information was a burning one during the eventh meet­ing of the Governing Body of the ITPGRFA in October 2017, Kigali, Rwanda. It will attract the attention of most of the Treaty community for the coming years. The use and appropriation of genetic information will be dealt with in chapter 5 below.

10 This initiative is led by Jack Kloppenburg, professor at the Department of Community and Environmental Sociology, Irwin Goldman centre, chair of the Department ofHorticulture.

Open Source Seed Initiative website, available at https://osseeds.org/ (accessed April 2015).

An example in France: Reseau Semences Paysannes functions as a network of local and national associations of farmers, citizens, NGOs and other actors involved in organic agriculture production and conservation (see www.semencespaysannes.org/).

I call ‘traditional varieties' seeds that are not registered in official plant variety catalogues, thereby seeds that do not fulfil one or several of the criteria for certification of seed i.e. Distinctness; Uniformity; Stability; and Value for cultivation and use - for agricultural crops. This notion covers ‘non-conventional seeds', ‘old / ancient / forgotten varieties', etc. as opposed to ‘biotechnological seeds' (SEED, 2017).

E.g., varieties that do not need irrigation to grow. It should be noted that the objectives are the same as transgenic seeds resisting to drought, but the means to reach that objective are different as well as the related societal objective.

Association Kokopelli website, available at https://kokopelli-semences.fr/fr/ (accessed April 2015).

Garden Organic aims at conserving and making available to its members, through an annual catalogue, vegetable varieties, mainly of European varieties, that are not widely available (see www.gardenorganic.org.uk/).

Reseau Semences Paysannes website, available at www.semencespaysannes.org/ (accessed April 2015).

See also (Aoki, 2010: 151) the above mentioned case law Monsanto Canada Inc. v Schmeiser, where ‘Monsanto's utility-patent rights and licensing agreements put those who are acci­dental users due to natural forces in the position of being vulnerable to lawsuits for patent infringement'.

Another illustration of this dependence imposed on farmers is provided by the Genetic Use Restriction Technology (GURT).

Personal translation of ‘[l]a filière propose ses produits à une clientèle que les contraintes techniques et juridiques ont progressivement rendue captives'.

Kloppenburg (2004: 184-189; also see Coomes et al., 2015) points to the fact that it is generally ‘asserted that only the application of scientists' labour [in breeding activities] adds value to the natural gift of germplasm' thereby ignoring any other sort of value the seed might have, i.e. cultural, social, or ecosystemic values.

Although Brush (2001: 162) argues that developing more GMO agricultural research may have a positive social impact in developing countries.

Initially, bioprospecting was seen as a way to access, collect and exploit plant and animal resources. The Compact Oxford English Dictionary defines bioprospecting as ‘the search for plant and animal species from which medicinal drugs and other commercially valuable compounds can be obtained'.

24 However, there are also opponents to the biopiracy claim; see for example Chen (2006).

25 Brush (2004: 232) argues that the ‘charge ofbiopiracy [...] epitomized the demise of the open collection of plants and the impoverishment of discourse by sloganeering. Few people bothered to ponder the nature of the ex ante system of common heritage. Rather, discourse on biological resources shifted rapidly to control and ownership by different actors: Nation-States, indigenous people, seed companies, international organizations, or research institutions’.

26 The Rome Declaration on World Food Security was adopted at the World Food Summit, 13-17 November 1996, Rome, Italy. The Summit was called by FAO and aimed at reiter­ating global commitments to fight hunger and react against widespread under-nutrition and growing concern about the capacity of agriculture to meet future food needs. The Rome Declaration calls for the members of the United Nations to work to halve the num­ber of chronically undernourished people on the Earth by the year 2015. The conference produced a second key document: the World Food Summit Plan of Action. The Plan of Action sets a number of targets for government and non-governmental organizations for achieving food security, at the individual, household, national, regional and global levels. Full text available at www.fao.org/docrep/003/w3613e/w3613e00.htm

27 The Green Revolution is a controversial example of such a policy. 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); Conway and Toenniessen (1999: 55-56) argue that there is a need for a second Green Revolution, which would avoid the pitfalls of the first one, and bring more benefits to the poor.

28 Frison et al (2011: 246-247) believe that ‘[t]here is a new recognition of the profound challenges faced in increasing production to meet the needs of a growing population under changing climates and the need to do so in a sustainable manner. [...] While the temptation will always be to look for quick fixes, these are unlikely to be sustainable or to meet current concerns for an environmentally acceptable agriculture that responds to the needs of small-scale farmers throughout the world. Almost all of the approaches used to date in agricultural intensification strategies, for example the substitution and supple­mentation of ecosystem function by human labor and petrochemical products, contain the seeds of their own destruction in the form of increased release of greenhouse gases, water supplies depleted by mining, and degraded soils. We need to build production systems that deliver intensification without simplification’.

29 A wide-ranging study by McGuire and Sperling (2016: 13), based on a uniquely com­prehensive data set of 9660 observations across six countries and covering 40 crops, list eleven different means of accessing seeds, that is to say through: the farmer’s own stock, exchange, gift, bought, vouchers, direct seed distribution, seed loan, food aid, money credit, casual labour, and ‘other’.

30 McGuire and Sperling (ibid: 20) demonstrate that ‘farmers access 90.2% of their seed from informal systems with 50.9% of that deriving from local markets. In contrast, formal sec­tor sources were modest, even though several decades of investment have largely focused on either the formal public or formal private sector. To review select findings tied to current models: a) the channels routinely supported supply an insignificant proportion of seed sown by smallholder farmers; b) new varieties are not being accessed sustainably through supported channels; and c) the array of crops needed for production, nutrition and resilience goals will not likely be promoted via a commercialized formal sector approach alone. [...] At a minimum, our results suggest a need to address the imbalance in seed channel focus so as to give attention to the main seed systems smallholders use, including several informal channels'. Up to now, no other study has analysed and provided such a wide range of data and statistics on the topic. It should be noted however, that the analysis is mainly focused on African countries, and therefore the results cannot be generalized worldwide, calling for further studies

31 FAO accompanies African countries in adopting national seed legislations. ‘With the support of FAO, the Southern African Development Community (SADC), the Eco­nomic and Monetary Union of West Africa (UEMOA) and the Economic Community of West African States (ECOWAS) have undertaken the harmonization of national seed regulatory frameworks in their respective Member States. Through a participatory process involving the key stakeholders in the countries, a legal framework for the harmonization of seed legislation is developed and subsequently adopted by these regional bodies'. See www.fao.org/agriculture/crops/core-themes/theme/seeds-pgr/seed_sys/rules/en/. See also the FAO (2015) Voluntary Guide for National Seed Policy Formulation available at www.fao.org/3/a-i4916e.pdf. However, one may question the result and impact of such capacity building project when reading the recently adopted African Regional Intellectual Property Organization (ARIPO) Arusha Protocol for the Protection of New Varieties of Plants. The Protocol was adopted by the four least developed countries of the 18 Mem­ber States present at the Diplomatic Conference held in Arusha, the United Republic of Tanzania on 6 July 2015. The Protocol remains open for signature by Member States of the Organization and other States, members of the African Union until 31 Decem­ber 2015. Available on ARIPO website at: www.aripo.org/news-events-publications/ news/item/81-the-united-republic-of-tanzania-signs-the-arusha-protocol#sthash. COyIQcmq.dpuf. The Arusha Protocol has been strongly criticized inter alia because the protocol compromises the implementation of the CBD and the Plant Treaty A major point of contention regards farmers' right to save, use, exchange and sell farm-saved seed and other propagating material. Indeed, the Protocol is said to hinder member countries to adopt a sui generis plant variety protection system, thereby suppressing the possibility to establish more flexible farmers' rights, not to mention the fact that according to farmers' organizations, the Protocol is inappropriate for the African region, it undermines national sovereignty, and diverges from positions articulated by African nations at the regional and international levels. A recent German governmental study confirms what civil society organizations have recommended, i.e. that ‘developing countries that have not yet joined UPOV should consider opting for alternative s ui generis systems of PVP that allow for more flexibility in meeting the obligations of different treaties, for balancing the interests of diverse actors, and for protecting and promoting Farmers' Rights, compared with the UPOV system' (Christinck and Walloe Tvedt, 2015: 6; also see la Via Campesina and GRAIN, 2015; Shashikant, 2015).

32 An interdisciplinary approach to seed networks will also allow for the study of the multi­functionality of seed networks. According to the International Assessment of Agricultural Knowledge, Science and Technology for Development (IAASTD, 2009: 18) ‘[t]he concept of multifunctionality recognizes agriculture as a multi-output activity producing not only commodities (food, feed, fibres, agrofuels, medicinal products and ornamentals), but also non-commodity outputs such as environmental services, landscape amenities and cultural heritages'.

33 However, due to the scope limits of this work, this approach will not be searched further.

34 Rothstein (1984:166) examines what is covered by the concept of‘North' and ‘South' in the debate around the New International Economic Order negotiations in the 1990s. He discusses the utility of maintaining such dichotomy although one can clearly not easily categorize such a diversity of countries in two, or even more groups. He states that ‘issues such as the global commons, [...] are sensible candidates for North-South negotiations’ (emphasis added).

35 Oxfam reports that in 2014, the richest 1 per cent of people in the world owned 48 per cent of global wealth, leaving just 52 per cent to be shared between the other 99 per cent of adults on the planet. The richest 20 per cent of the world’s population own approxi­mately 95 per cent of the plant’s wealth, leaving just 5.5 percent for the remaining 80 per cent of people in the world.

4