Conclusion

Implementing these eight recommendations are first steps towards construct­ing a political commons and towards addressing the difficult issue of PGRFA

management with an ‘ecology of law’ perspective.

1 Formally recognizing food security and sustainable agriculture as direct objectives of the Treaty would be a strong political signal, shifting the purpose of the MLS from being a tool that upholds seed commodification to a tool enhancing seed commoning. This would reset sustainability at the heart of the global seed commons’ project and recognize food produc­tion as the core of farmers’ role.

2 Harmonizing the scope of the MLS with that of the Treaty to include all PGRFA and expand the boundaries of the Treaty to make it truly global would respond to the anticommons dilemma. A sustainable PGRFA management functions like a virtuous circle where the more seeds and related information are used and shared, the more they develop, expand and gain value. Therefore, a wide community of users for a wide spectrum of resources is crucial.

3 and 4) Formally recognizing farmers’ rights at the international law level and committing to implement these rights at the national level is a sine qua non condition for an effective global seed commons to function and reach its objectives. This recommendation goes hand in hand with the fourth one recognizing a direct facilitated access to PGRFA for farmers, promoting sui generis PVP systems to recreate effective farmers’ exemp­tion, and softening the commercial seed certification and registration regulations. They both necessitate strong political will to formalize de facto rights into internationally recognized de jure rights.

5 Benefits of the Treaty should reach all beneficiaries and farmers should be repositioned as active stakeholders in the Treaty, the MLS and the BSF management. This implies that the BSF should be widened and increased. This fifth recommendation resonates with the role of each stakeholder in a community, and hence in a network of related communities. Farmers are those tilling the land, sowing the seeds, harvesting the fruits of their labour, producing our food. They cannot be relegated to passive benefi­ciaries in the Treaty system. Farmers’ knowledge and practices are valuable. Humanity is benefiting from them. Implementing an ‘ecology of law approach’ (Capra and Mattei, 2015) to the MLS requires this move to happen.

6 Developing the Treaty’s Global Information System, keeping in mind the overall goals of the Treaty, by rendering available, visible and accessible relevant information to all stakeholders, in particular farmers, participates to the rebalancing of powers that needs to take place. Similarly, seeking means to transform the global seed commons into a space where seeds and traditional knowledge would be protected from misappropriation is an important element for the MLS to function effectively. Enlarging the Annex I list of crops to all PGRFA will not happen as long as the rights

Inspiring an effective Plant Treaty 211 of de facto right holders are not protected from the excesses of the ‘second enclosure movement’ (Boyle, 2003b). However, this enlargement has to take place, to respect the invariable principle of sustainability, interdepen­dence and anticommons dilemma.

7 In order to contribute to the rebalancing of power between stakeholders, the potential of the innovative Third Party Beneficiary instrument has to be unlocked. Advertising on the 3PB’s role and procedures to the Treaty community and to the public and dealing with 3PB cases in a more transparent way are first steps in that direction. Envisaging to expand the scope of the 3PB to situations of non-compliance would be a second step.

8 Finally, allowing all stakeholders to effectively participate in the governance of the global seed commons is the last but not least recommendation that results from this work. As Mattei (2011b: 12; see also 2011a: 101-102) puts it ‘each individual’s survival depends on its relationship with others, with the community, with the environment’. Constructing a political global seed commons taking this into account imposes ‘commoning’ (Bol- lier, 2014), or, as Dardot and Laval (2014: 580) formulate it, ‘act in com­mon’ (‘agir en commun’). According to them, participating to an activity constitutes the basis of all political obligations, i.e. from ‘co-activity results co-obligation’ (ibid). The political obligation then ‘derives its strength from practical engagement binding all those who have drawn up the rules of their activity together’, (ibid)⁵³ thereby imposing a multi-stakeholder approach to any political common governing system. Rebalancing the economic and political powers within the Treaty forum is crucial to allow for a democratic governance to take place (Lucarelli, 2013). Only then can adequate political and governing decisions be made that will address the issue at stake in responding to all its aspects and to all stakeholders needs. Only then can the collective interest (i.e. sustainable agriculture and food security) be safeguarded and translated into public policies (Lucarelli, 2011a, 2011b, 2013).

Throughout these eight recommendations, there is one important cross-cutting aspect that appears in almost every topic: the lack of recognition of the role and rights of smallholder farmers. By lack of recognition, the author means the lack of translation of their role and de facto rights into concrete obligations, instru­ments and procedures in the Treaty implementation, i.e. de jure rights. This participates in the identified imbalance of rights between Treaty stakeholders; an imbalance which has to be redressed in order to effectively implement a global seed commons and eventually reach the Treaty’s objectives.

To conclude, I am not going as far as affirming that inappropriability is the only possible normative political construct for ‘the common’ to happen (Dardot and Laval, 2014: 583). To suggest that the MLS should be a space for inap­propriability of all seeds and making a normative statement as this being THE solution to the constraints identified in the PGRFA management system would

presume from stakeholders’ discussions and decisions. Other solutions can be envisaged and lead to an effective politically constructed global seed commons. Such a political decision can only be the result of a collective debate and choice between all stakeholders. This decision could therefore only be taken and the above recommendations implemented, once the balance of powers in the Treaty forum is re-equilibrated, thereby allowing for an equitable and fair discussion and decision-making process between all stakeholders.

Notes

1 Although authors rather see this role played by the CGIAR as a means to maintain an easy access to resources for developed countries and their breeding companies as a warrant to secure their economic development through the Green Revolution (Lenne and Wood 2011: 150; Mooney, 2011: 142).

2 Resolution 8/83 recognized that ‘plant genetic resources are a heritage of mankind to be preserved, and to be freely available for use, for the benefit of present and future generations’.

3 Sections 2 and 3 of the present chapter have been published earlier this year in Frison (2018, chapter 17 of the book) Girard and Frison (2018) ‘Commons, Plant Breeding and Agricultural Research’, Routledge, pp. 272-89. With permission from the publisher.

4 There is some confusion on the term and definition used in the literature regarding the commons at a ‘global’ / universal / world level. Some authors talk about global commons when dealing exclusively with the high seas and deep seabed, Antarctica, outer space and the global atmosphere (Buck, 1998; Vogler, 2012; Ashley Roach, 2012).

5 In game theory, this has been modelled under the prisoner’s dilemma (Rapoport and Chammah, 1965).

6 US Supreme Court, Diamond v. Chakrabarty, 447 U.S. 303 (1980), where the court ruled (5-4) in favour of Chakrabarty, holding that: ‘A live, human-made micro-organism is patentable subject matter under 35 U.S.C. § 101. [...] Respondent’s micro-organism con­stitutes a “manufacture” or “composition of matter” within that statute’. For an analysis of the evolution of plant patenting in the USA and Europe see Batur (2014: 69 et seq). For an analysis of the Chakrabarty case and following relevant case law see Aoki (2004).

7 For a summary history of Ostrom’s research projects see Coriat (2013: §§ 20-62); Van Laerhoven and Ostrom (2013).

8 For early thoughts on the bundle of rights concept see Ciriacy-Wantrup and Bishop (1975). The bundle of rights approach can also be found in Alchain and Demsetz’ work, although leading to an opposite conclusion.

9 International Association for the Study of the Commons website, www.iasc-commons. org/

10 International Journal of the Commons website, www.thecommonsjournal.org/

11 See various web-based information: ‘Economic Crisis in a Globalized World’ - Wide- Angle (21 November 2008) at www.pbs.org/wnet/wideangle/uncategorized/how- global-is-the-crisis/3543/; ‘Financial Crisis’ - IMF, at www.imf.org/external/np/exr/ key/finstab.htm; and ‘Times of Crisis’ - Reuters: Multimedia interactive charting the year of global change, at http://timesofcrisis.reuters.com/app/

12 Authors that are included in this trend do not necessarily all share the same ideas. What brings them together in this trend is the fact that they push further Ostrom’s thinking, although exploring different directions.

13 European Water Movement, http://europeanwater.org/fr/

Personal translation: ‘c’est la finalite des “communs” qui est mise en exergue, une finalite de justice globale dans les droits d’acces et d’usage des ressources essentielles’.

Parts of this reflexion will be further developed in the ANR research project ‘Bioculturalis’ (2019-2021), upon acceptance of funding, with Fabien Girard, Universite de Grenoble. Nuits debout, https://nuitdebout.fr

Tatro della Valle, www.teatrovalleoccupato.it/

Acqua Bene Comune, Napoli prima in Italia per la gestione pubblica dell'acqua, www. comune.napoli.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/20076 Movimiento M15, www.movimiento15m.org/

‘Transition Network: A Movement of Communities Coming Together to Reimagine and Rebuild Our World’, https://transitionnetwork.org/ and https://citiesintransition.eu/ End of 2007, less than 25 scientific publications on the Plant Treaty were collected, more than half of which are authored by non-academics. FAO documents and publications are not counted in this list.

These principles are not exclusively part of the theory of the commons and can be found in other theories and disciplines. Sustainability for example is clearly found in environ­mental international law and sustainable development principles.

In 1997, FAO released the results of a worldwide study aimed at assessing the degree of dependence of a country’s main food crops on genetic diversity in areas of origin and primary diversity located elsewhere. It shows that all regions in the world are highly dependent upon resources originating for another region, North America being the high­est dependent region, and Asia and the Pacific region being the least dependent region (Palacios, 1997). This study was requested by the CGRFA and complements the first report of the State of the World’s Genetic Resources for Food and Agriculture. Palacios adds that ‘crops such as cassava, maize, groundnut and bean originated in Latin America but have become food staples in many countries of sub-Saharan Africa, illustrating the interdependence of cropped species in the developing countries. Cassava is the main food crop for 200 million Africans in 31 countries and has a farmgate value of over US$ 7 billion. At the same time, Africa and its indigenous varieties of millet and sorghum have helped feed other parts of the world such as southern Asia (13%) and Latin America (8%)’ (Palacios, 1997: 3). In 2015, another study confirms these findings, highlighting that our estimation for countries’ interdependence is even higher and more diverse than foreseen (Khoury et al., 2015).

FAO (2010). There is not a single self-sufficient country for crop genetic resources. All countries are both donors and recipients ofPGRFA. This means that breeding new variet­ies repeatedly necessitates genetic material from other countries (Frison and Halewood, 2005). The average degree of interdependence among countries for their most important crops is around 70 per cent (Esquinas-Alcazar, 2005). Most of the efforts that are necessary to manage plant genetic resources can therefore only be carried out through international cooperation (Fowler and Hodgkin, 2004).

Specifically, as Fowler and Hodgkin noted, ‘materials held in genebanks eventually require regeneration, ideally in the same environment in which they were collected in order to avoid changes in the genetic composition of the sample, and even loss of some genes or alleles. Because most collections contain materials from many countries, cooperation is needed if high conservation standards are desired. In Europe, there is increasing collabora­tion. In some cases, different genebanks concentrate on maintaining different crops, and for a number of crops, common information resources have been developed’ (Fowler and Hodgkin, 2004: 148).

Latin American and the Caribbean countries stated - during the negotiation of the Treaty, in the Bogota Declaration (18-22 March 1996) - that ‘[t]he trend toward globalization of the international economy and the inherent growing interdependency find clear expres­sion in the issue of sharing of and access to the world’s Genetic Resources for Food and Agriculture’ (FAO, 1996a: 4). This view was shared by most negotiating countries.

This idea relates to the fifth invariable principle of ‘community’ and to questions related to stakeholder participation in governing a collective system.

Another argument supporting this conclusion is the one developed by Pistor and De Schutter on ‘essential resources’, which ‘calls attention to distributional equity and sus­tainability’. According to them, governance of resources ‘should be promoted with the proviso that nobody should be excluded from resources that are essential for satisfying basic needs; further, the exploitation of the resource today should not jeopardize the ability of future generations to satisfy their needs’ (Pistor and De Schutter, 2015: 24).

Although now with CRISPR technology, the physical material is no longer needed to create an improved variety. As long as the genetic code is known, access to the physical seed variety becomes superfluous, thereby rendering the control on seed access almost impossible.

See note 27 in Chapter 3 for an explanation of the OSSI system.

This raises interesting questions on the operational-choice versus collective-choice level of actions developed by Schlager and Ostrom in their implementation of the bundle of rights in the CPRs (Schlager and Ostrom, 1992).

The Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture was formally adopted by representatives of 150 countries during the Fourth International Technical Conference on Plant Genetic Resources, which was held in Leipzig, Germany, from 17 to 23 June 1996. The World Food Summit took place in Rome, Italy on 13-17, November 1996, where both the Rome Declaration on World Food Security and the Global Plan of Action were adopted. Self-determination is understood as the choice left to farmers to decide what, how and for whom to produce food, freed from the neo-liberal economic power and bargain imposed on them. Focus is set on autonomy of all seed-related activities (Van der Ploeg, 2008; Demeulenaere, 2014; Schneider and Niederle, 2010; Stock et al., 2014; Stock and Forney, 2014).

At the Sixth Governing Body, during a side event session, Eng Siam Lim had launched the idea that ‘a MLS for farmers’ should be created.

Global Consultation on Farmers’ Rights website, www.planttreaty.org/sites/default/ files/008_GB7_NCP_FREC_en.pdf

Although the EU directive on biotechnological innovations provides in its Article 11 paragraph 1 allows farmers to use the harvest deriving from patented material (this does not include the right to exchange seeds for example). See also recitals 46-51 of Directive 98/44/EC and Article 14 of Council Regulation No. 2100/94 of 27 July 1994 on Community Plant Variety Rights. Article 14 recognizes that small farmers may freely use harvested material of some plant species (listed in its paragraph 2.a), while other farmers should pay an equitable remuneration (see Council Regulation, Article 14, paragraph 3).

Resolution 1/2006, point 11 ‘[i]nvites Contracting Parties, the private sector, including the Food Processing and other value-added Industries, non-governmental organizations, and all other interested parties, to make voluntary contributions to the Funding Strategy’ (emphasis added).

Traditional knowledge is an important question to further seek.

Current negotiations on an international legal instrument to ensure the effective protec­tion of TK, traditional cultural expressions and genetic resources are taking place within the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO-IGC). See www.wipo.int/tk/en/igc/

The Governing Body adopted a Vision paper which States that the ‘development of a truly effective Global Information System as foreseen in the International Treaty involves, inter alia: strengthening existing systems and, where gaps remain, establishing new systems and initiatives; promoting inter-connectivity among systems; and providing overarching mechanisms to ensure ready access to the information and services provided’. See IT/

Inspiring an effective Plant Treaty 215 GB-6/15/Report, Appendix A, Resolution 3/2015, Annex ‘Vision for the Global Infor­mation System on PGRFA'.

41 The objective of this community-driven initiative is to bridge the gap between the infor­mation requirements of genebank curators, plant breeders and more targeted upstream biological researchers, in order to support applied germplasm curation, forward-looking breeding programmes and strategic research. DivSeek, ‘Harnessing the power of crop diversity to feed the future'. White Paper, available at http://static1.squarespace.com/ static/537207e3e4b0d4555960edfd/t/53b08ea6e4b0efba71ed6fbc/1404079782586/ White+Paper+DivSeek.pdf

42 The Global Open Genome Sequence Data Framework pledge for a ‘universal access to genome information, needing nothing more than a web browser' in order to ‘transform plant breeding [...] [and] spawn innovation around the world'. Warthmann and Chiarolla (2015: 2) propose to establish a ‘public license for genomic information on crop germ­plasm' as the first mechanism to ensure that ‘such data will be systematically treated as a public good for the benefits of mankind'. Available at https://sustainabledevelopment. un.org/content/documents/5934Thinking%20a%20global%20open%20genome%20 sequence%20data%20framework%20for%20sustainable%20development.pdf.

43 Digital Object Identifiers (DOI) of the Global Information System (GLIS) of Article 17 of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) webpage, www.fao.org/plant-treaty/areas-of-work/global-information-system/doi/it/

44 The Plant Treaty website states that's the ‘Third Party Beneficiary is an entity designated by the Governing Body of the International Treaty and which acts on behalf of the Gov­erning Body itself and the Multilateral System to ensure observance of the contractual terms and conditions of the SMTA by the individual providers and recipients'. www. planttreaty, org/content/what-third-party-beneficiary

45 By Resolution 5/2009 and Resolution 5/2011, the GB requested the Secretary to provide such report in accordance with Article 9 of the 3PB Procedures.

46 Article 9 of the 3PB procedures states that the report should contain information on: ‘a) the number, and a summary, of cases where it received information regarding noncompliance with the terms and conditions of a Standard Material Transfer Agree­ment; b) the number, and a summary, of cases where it initiated dispute settlement; c) the number, and a summary, of disputes settled through amicable dispute settle­ment, mediation or arbitration; d) the number, and a summary, of pending disputes; e) any legal questions that appeared in the context of dispute settlement and that may require the attention of the Governing Body; f) the expenditure from the Third Party Beneficiary Operational Reserve; g) any estimate of the needs of the Third Party Beneficiary Operational Reserve in the forthcoming biennium; h) any other relevant non-confidential information'.

47 In some developed countries' delegation, representatives from the seed industry are often participating as experts to the delegation, thereby constituting an officially invisible pres­ence of the sector to the negotiations, but officiously actively participating to the process. This reflects once again, the imbalance of powers between stakeholders.

48 United Nations' Committee on World Food Security (CFS) website, www.fao.org/cfs/ cfs-home/en/

49 With the Crucible Group and Keystone Dialogue initiatives, History has shown the util­ity of involving stakeholders in discussing problems and imagining solutions that would contribute to collectively face major future challenges. Indeed, such informal dialogue constitutes a good place to tackle highly technical issues (and take these issues far from the political sphere for a while), by those very persons who deal with these aspects in their everyday work (contrary to negotiators in official GB meetings who are generally representatives of ministries and not direct users of PGRFA).

50 The tentative informal multi-stakeholder dialogue held in 2013-2014 aborted. See Chap­ter 3 in this book.

51 The CGIAR already builds significant partnerships with local organizations and universi­ties in developing countries.

52 Using a multi-stakeholder, inclusive approach, the CFS develops and endorses policy rec­ommendations and guidance on a wide range of food security and nutrition topics. These are developed starting from scientific and evidence-based reports produced by the High Level Panel of Experts on Food Security and Nutrition (HLPE) and/or through work supported technically by The Food and Agricultural Organization (FAO), The Interna­tional Fund for Agricultural Development (IFAD), World Food Programme (WFP) and representatives of the CFS Advisory Group. CFS holds an annual plenary session every October in FAO, Rome.

53 Personal translation: ‘tire toute sa force de l’engagement pratique liant tous ceux qui ont elabore ensemble les regles de leur activite’.

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