A description of Treaty stakeholders

In theory, all Treaty stakeholders have an overall common interest, i.e. to con­serve seeds to be able to use them to produce food. Notwithstanding this self-evident statement, stakeholders have very different agendas and objectives, specific institutional structures, diverse economic means to reach their goals, etc.

communities as well as commercial and non-profit actors. This section aims at describing these actors. It is essential to comprehend how they function, what their claims and interests are, and how they participate in the PGRFA regime complex in order to understand the roots of the current setting; to foster ways of bridging stakeholders’ diverse interests; and to propose solutions that are likely to be accepted and implemented by these stakeholders. Indeed, as Reed et al. (2009: 1935) put it ‘[o]nly by understanding who has a stake in an initiative, and through understanding the nature of their claims and inter-relationships with each other, can the appropriate stakeholders be effectively involved in environ­mental decision-making’. The actors who contributed to the edited volume are the following: states (contracting parties); the CGIAR; the Global Crop Diversity Trust; genebanks and collections; the seed industry; farmers and farmers’ orga­nizations; and NGOs.

States

States as sole recognized decision-making actors within FAO

States are the primary actors in intergovernmental organizations such as FAO. There are 186 nations that are member of FAO and 145 are contracting parties to the Treaty. In international law, all states are equal, as every state has a legal personality and there is no hierarchy among them (Cragg et al., 2012). Within international fora such as UN agencies, one state equals one vote according to the sovereign right of states to negotiate international treaties (FAO Constitu­tion, Article 3.1; Vienna Convention on the Law of Treaties, Article 6 stating that every state possesses capacity to conclude treaties). State sovereignty can be seen as the warranty for state compliance with the designed international regula­tory instruments (Chayes and Chayes, 1998). Decisions are generally taken by a two-thirds majority, although unanimity or systems with weighted voting are also frequent for specific types of decision (Cragg et al., 2012; Vienna Conven­tion on the Law of Treaties, Article 9). Notwithstanding this equality of status, it is a fact that states with greater economic power and political clout use their influence to impose their views.

States’ diversity of objectives in creating and complying with regulatory instruments

While each state has its own national policy regarding PGRFA management, it is impossible for any state - no matter how powerful it is - to impose its own economic, social and environmental political agenda on all other FAO mem­bers. While states share a common concern for the conservation of biological diversity, for their economic growth and health, or for their social development, it is clear that they all have divergent agendas and objectives according to their specificities, wealth, or stage of development, etc. Furthermore, states’ nego­tiating behaviour will reflect the concomitant constraints of both a domestic

Seeds and people 143 political game and an international game (Putnam, 1988; Evans et al., 1993).

States’ negotiating practice within FAO

Within FAO’s CGRFA, the usual practice is that countries from the same region meet in regional groups to develop consensus positions and therefore have stronger influence on the negotiation outputs. CGRFA member nations⁶ are subdivided into seven geographic regions (CGRFA Rules of Procedure, Rule III): Africa, Asia, Europe, Latin America and the Caribbean, Near East, Northern America and South West Pacific. Gerbasi (2011: 29) recognizes that ‘[w]hile the existence of these regions responds to technical needs, it is also true that this has political implications’, thereby increasing states’ political and economic weight during the negotiations. Other groupings have emerged, such as the European Union (EU),⁷ the G-77,⁸ the OECD group⁹ or the mega-diverse countries,¹⁰ each with the aim of giving more weight to states with overall common objec­tives during negotiations and decision-making processes. However, none of these groups really align with the political divide that occurred during the Treaty negotiations between gene-poor developed countries and gene-rich developing countries (Frison et al., chapters 1 to 8, in particular Gerbasi, 2011).

As for all international negotiations, the resulting instrument reflects the balancing powers and interests of most parties. Although in theory, states have equivalent powers and one state equals one vote, in reality not all states can exert the same level of influence. In explaining why Africa did not obtain as much as initially hoped, representatives from the African group contend to have ‘given in’ too quickly and hence to have lost their major bargaining power (Egziabher et al., 2011: 52).

The Consultative Group on International

Agricultural Research (CGIAR)

A brief history of the CGIAR

The CGIAR grew out of the international response to widespread concern in the 1950s, 1960s and early 1970s that many developing countries would suc­cumb to hunger.¹¹ Experts predicted prevalent and devastating famine between 1970 and 1985, with hundreds of millions starving to death. The roots of the CGIAR go back almost three decades before its formal inauguration in 1971, beginning with a collaborative programme between Mexico and the Rockefeller Foundation (Byerlee and Dubin, 2010). The CGIAR is a strategic partnership

of countries, international and regional organizations and private foundations supporting the work of 15 International Agricultural Research Centres united in a Consortium (CGIAR, 2012; Moore and Frison, 2011). The CGIAR has strong links with university and private research, inter alia through public-public or public-private partnerships. Its activities are mainly financed with public funds from donor countries, developing countries, regional organizations, interna­tional organizations and foundations.

The CGIARS objectives

According to their website,¹² the CGIAR is dedicated to the conservation and use of agricultural biodiversity to improve the livelihoods of poor people. It fosters sustainable agricultural growth through high-quality science aimed at benefiting the poor through e.g. stronger food security, better human nutrition and health, higher incomes and improved management of natural resources. The CGIAR research centres do so in collaboration with national agricultural research systems, civil society and the private sector, as complementary stake­holders to states’ actions in international agricultural policies. The CGIAR Constitution does not explicitly mention that one of its objectives is to provide international agricultural goods and services which states fail to provide on their own (i.e. such as food security and sustainable agriculture).

The role of the CGIAR and of Bioversity International in the Treaty negotiation

The CGIAR has developed many policies, programmes and tools to reach the above mentioned objectives.¹⁴ Indeed, by collecting, characterizing and conserv­ing PGRFA, and by training, transferring knowledge, technology and material in an ‘open access’ manner, the CGIAR has significantly contributed to designing a new international regime for germplasm development and transfer (Falcon and Fowler, 2002). The research, conservation and training activities are mainly focused on developing countries. Since its inception, the CGIAR has contrib­uted to facilitate the access to as many PGRFA as possible, first by creating a global network of gene banks and collections, then by holding PGRFA in trust for the global community,¹⁵ and by making information available to the com­munity (inter alia through databases such as SINGER or Genesys).

Bioversity International is one of 15 centres supported by the CGIAR.¹⁶ A study was published in 2003 on the role and political influence that Bioversity (at that time named IPGRI) exerted between 1996 and 2001 in the international negotiations revising the IU. The study shows that

the provision of timely and relevant technical inputs directly linked to IPGRI’s area of expertise was the most successful means of influencing the negotiations. [...] [P]olitical neutrality and reliability were seen as factors that enhanced IPGRI’s ability to influence [negotiations]. (Sauve and Watts, 2003: 307)

Bioversity International and the CGIAR are accredited to participate in Treaty meetings as ‘observers from intergovernmental organizations’.

Outcomes of CGIAR’s participation in the Treaty negotiating process

The CGIAR has actively contributed to the creation of the Treaty’s innovative MLS (Cooper et al., 1994; Falcon and Fowler, 2002). As a matter of fact, dur­ing the Treaty negotiations, the CGIAR and especially Bioversity International, has played a crucial role in unblocking negotiations on technical matters, in particular regarding the access to and exchange of PGRFA, as well as the SMTA (Moore and Frison, 2011: 156-159). As the historical accounts have shown, the CGIAR objectives and policy instruments have functioned as a driver to design and adopt the policy instruments and objectives for the international manage­ment of PGRFA under the Treaty.

During the implementation process, the CGIAR continues to be a central actor of the PGRFA regime. Indeed, its role has been recognized and integrated within the Treaty system under Article 15. The CGIAR Centres and other international institutions holding PGRFA collections in trust are the main dis­tributors of Annex I (and non-Annex I) PGRFA following the MLS provisions (i.e. using the SMTA). Even more, the CGIAR is now subject to policy guidance of the Governing Body for the ex situ collections held by them (Plant Treaty, Article 15.1(c)).

The Global Crop Diversity Trust

The mission and objectives of the Global Crop Diversity Trust

The mission of the Global Crop Diversity Trust (GCDT) is to ensure the con­servation and availability of crop diversity for food security worldwide. It con­tributes to sustaining PGRFA collections that are critical for food security and sustainable development and to secure PGRFA in the long-term.

The objectives of the GCDT are to safeguard collections of unique and valu­able PGRFA held ex situ, with priority being given to those that are included in Annex I to the Treaty or referred to in Article 15.1(b) of the Treaty. This includes the funding of projects for the regeneration, characterization, documentation and evaluation of PGRFA and the exchange of related information, as well as securing the availability of PGRFA. The GCDT also aims at supporting the implementation of the Global Plan of Action for the Conservation and Sustain­able Utilization of PGRFA and at participating in national and regional capacity building initiatives (Hawtin and Fowler, 2011: 215-216).

Legal status of the GCDT

The GCDT is an independent organization under international law, officially established in October 2004,¹⁷ although discussions on the need for such an institution had been ongoing for several years already. The adoption of the Treaty unblocked the discussions and allowed for its swift creation.

A ‘Relationship Agreement between the Governing Body of the Interna­tional Treaty and the Trust’ was formally approved during the first meeting of the Governing Body of the Treaty in June 2006 (IT/GB-1/06/Report at §§ 35-40). Although the agreement recognizes the GCDT as an ‘essential element’ of the funding strategy of the Treaty and provides for the Governing Body to give policy guidance to the Trust and to appoint four members of its Executive Board,¹⁸ many developing countries were unhappy with the establishment of the Trust as an independent organization. Besides the lack of real control of the Governing Body over the Trust, one of the reasons of this resentment was the fact that they saw significant funding going to the Trust for ex situ conservation, while they would have liked to see more investment in in situ conservation.

Strategies and policy results of the GCDT

The GCDT uses a constellation of strategies and formal policies to reach its objectives (Hawtin and Fowler, 2011). It finances ex situ conservation projects all over the world and reports on its activities to the Treaty’s Governing Body.

Since its inception, the GCDT was able to provide long-term maintenance grants to many collections (aroids, banana, barley, bean, cassava, fava bean, forages, grass pea, pearl millet, rice, sorghum, wheat and yam). In addition, the GCDT has funded projects around the world in partnership with a large number of other institutions (including private corporations). As of December 2015, the GCDT had received from donor countries, foundations, the private sector and interna­tional organizations total pledges of support amounting to over US$444 million and of this more than US$309 million had already been received.¹⁹

Genebanks and plant genetic resources collections

The predominance of ex situ conservation of PGRFA

Genebanks are the facilities where major crop plants and their wild relatives are stored for their conservation and use. They provide the raw material for the improvement of crops by professional plant breeders. 90 per cent of the six million accessions conserved in ex situ collections worldwide are stored as

Seeds and people 147 seed because it is practical and relatively cheap. Other conservation methods include freezing plant tissues or pollen (i.e. cryopreservation), tissue cultures grown in test tubes (in vitro conservation), live plants in greenhouses and live plants grown in the field (field collections). Various types of genebanks exist, i.e. crop­based collections which focus on one crop (e.g. rice, wheat, potato), or national (e.g. US National Plant Germplasm System), regional or international collections, which store a variety of crops. N.I. Vavilov was the first to create a genebank in Saint-Petersburg (Leningrad) at the beginning of the twentieth century; his activi­ties where focused on crop improvement. Pistorius identifies the US National Seed Storage Laboratory - created in 1958 - as one of the first real ex situ collec­tion facilities to conserve threatened landraces and wild species (Pistorius, 1997: 7). In 2010, FAO registered some 1750 genebanks around the world (FAO, 2010: 55).

Objectives of genebanks

Genebanks have various functions. Article 2.1 of the IU distinguished between a ‘base collection of plant genetic resources’ and an ‘active collection’. ‘Base collections’ hold plant genetic resources for long-term security to preserve the genetic variation for scientific purposes and as a basis for plant breeding. They constitute a safe long-term duplicate of PGRFA that are also conserved in ‘active collections’. The Svalbard Global Seed Vault,²⁰ which is probably the most famous genebank, provides for an additional safety back-up. ‘Active collections’ complement base collections in that they maintain seed samples that are drawn on for use. They acquire (through exchanges or exploration and collection trips), conserve, multiply, regenerate, study (inter alia through characterization and evaluation) and distribute genetic resources to users such as breeders or researchers in various fields, including genetics, plant and seed physiology, in vitro culture, cryopreservation or information technology. In the Treaty, a gen­eral inclusive definition of ‘ex situ collection’ is provided in its Article 2 as a collection of PGRFA maintained outside their natural habitat.

Conservation strategy at the international level

According to some experts,

maintenance of seed viability and genetic integrity remain the cornerstones of gene bank management. The quality and sustainability of any genetic conservation effort depends on how seeds are processed and conserved. Inappropriate procedures for seed handling lead to accelerated deterioration, making conservation more expensive.

(Rao et al., 2006: 2)

While ex situ conservation has invaluably contributed to the mitigation of diver­sity losses and has constituted the core ‘raw’ material for major public research on food security issues, genebank curators have pointed to the lack of sufficient

financial, human and technological means to efficiently conserve and safeguard PGRFA (Cubero, 2011). Therefore, there is a need to develop the coherent gene­bank management strategies and policies required to respond to the increasing pressure to improve cost efficiency and effectiveness. Such efforts are made by international actors such as FAO or Bioversity International through the devel­opment of guidelines for breeders and researchers, a common framework for seed policies, information sharing mechanisms,²¹ or standardization of material transfer agreements (SGRP, 2003). During the Treaty negotiations, genebanks have mainly been involved indirectly through either the CGIAR or through national delegations. The policy implemented through the supporting compo­nents of the Treaty (the GPA, the role of the CGIAR, the international PGRFA networks and the GLIS) reinforces the global strategy for ex situ conservation. A remark is made on the fact that this strategy clearly focuses on providing material mainly to one type of users, i.e. breeders and researchers.

Plant breeding and the seed industry

Companies within the breeding and seed industry

While seed companies constituted a very fragmented market until the 1960s (van den Hurk, 2011), a massive industrialization of agriculture has led to a rul­ing by a few oligopolistic companies (Kloppenburg, 2004: 11-18). The global seed market increased from US$ 12 billion in 1975, to around US$ 20 billion in 1985 and was estimated at US$ 36.5 billion in 2007 (van den Hurk, 2011: 164). The rapid progress of technology, especially in molecular biology and genetic engineering, has introduced new players into the field (Howard, 2009; Footer, 2000: 51). The wave of acquisitions that took place in the 1980s has significantly concentrated the seed market (LeBuanec, 2007: 10), where mega-seed companies (Herdt, 1999: 8-9) expanding on the agrochemical market aim at controlling everything from genetic engineering of seeds to the selling of seeds to farm­ers, to marketing plant-grown drugs, modified foods and industrial products. Aoki (2008: 113) cites Janet Hope saying that ‘the merger-mania was driven primarily by the need to avoid high transaction costs associated with clearing multiple IPR, [...] and that most key enabling technologies are now in the hands of only a handful of firms’. According to Laird and Wynberg (2005: 18), ‘[t]he seed industry is characterized by three levels of companies: life science giants, large multinational firms, and small and medium-sized enterprises’. By reminding that in 2005, ten companies controlled 49 per cent of the global seed market, with an increased trend towards acquisitions and mergers between seed and agrichemical companies Laird and Wynberg (ibid) confirm that ‘[m]ost of the larger companies also have active interests in agro-chemicals and pharma­ceuticals. An intensifying trend over the past decade has been the continued consolidation of the seed, crop protection and plant biotechnology industries’. Today, the agro-chemical-seed market is dominated worldwide by the Big-Six that is to say BASF, Bayer, Dupont, Dow Chemical Company, Monsanto and

Seeds and people 149 Syngenta, which is becoming the Big Five, with the ongoing Bayer-Monsato merger. In 1996, Monsanto was ranked number 12 in the overall ranking of seed company revenues with 170 million Euros, whereas it reached the first place in 2006, with a company turnover exceeding 4 billion Euros (LeBuanec, 2007: 10). The concentration tendency is continuing, as shown by the 2015 failed tenta­tive US$46.5 billion takeover bid of Monsanto over Syngenta²² and is now also shifting towards farm machinery industry, thereby potentially creating a ‘one- stop shop for farm inputs’ for all farm machinery, seeds, fertilizers and chemicals (ETC Group, 2015: 3).

Besides, in specific countries, such as the Netherlands where plant breeding has a strong historical trade background, or in developing countries where the breeding industry is emerging, small and medium-size seed enterprises manage to continue to evolve in the international seed market.²³ Laird and Wynberg (2005: 18) confirm that ‘small and medium-sized seed companies, of which there are several thousand, are also significant and occupy different market niches, [such as] vegetables, grasses and more marginal crops’. These small and medium­sized companies hold different interests and positions than the mega-companies.

Activities of the private seed industry

Seed companies are market entities, whose objectives are primarily profit-oriented. They exploit the potential of isolating and manipulating specific genetic character­istics in seed varieties (Footer, 2000: 51). Over the years, plant breeding has largely concentrated on the following aspects of major crops: increased yields, earliness, resistance to biotic stresses and tolerance to abiotic stresses; these characteristics are incorporated in new varieties. Some qualitative characteristics like taste or nutri­tional value were also improved for some crops (Bruins, 2009 : 23). According to the first report of the state of the World PGRFA,²⁴ the private sector

tends to focus on crops that either cover large areas (maize, soybean, wheat, rice) or that generate high per hectare income (tomatoes, sugar beet, etc.). It also tends to concentrate on those crops that offer the strongest protec­tion, either through IPR legislations or more often through the technical or physical characteristics of the seed such as hybrid seed or the terminator technology. This indicates a continuing need for public investment in plant breeding to cover the gaps in private-sector efforts.

(FAO, 1996a: 165)

The seed industry’s strategy in the international PGRFAforum

To represent the interests of the mainstream seed industry at a global level, seed companies have grouped into the International Seed Federation (ISF, formerly ASSINSEL). The mission of ISF is to facilitate the international seed flow, related know-how and technology; to mobilize and represent the seed industry at a global level; to inform its members; and to promote the interests and the image

of the seed industry.²⁵ ISF has been very active during the negotiations on the Treaty and its SMTA (van der Hurk, 2011). Two aspects are crucial for the seed industry: IPRs and access to material.

Regarding the first aspect, companies insist on the fact that the cost of R&D is substantial. Therefore, they perceive intellectual property protection on the vari­eties they produce as the most appropriate manner to ensure a return on R&D investments (Footer, 2000: 51). The possibilities offered by intellectual property protection of plant varieties and biotechnological inventions have encouraged companies to increase their spending on R&D: the plant breeding industry spends on average 10 to 15 per cent of its annual turnover (Bruins, 2009: 22). Therefore, during the Treaty negotiations, ISF has strongly supported the protec­tion of crop improvements based on plant breeders’ rights (UPOV 1991 rather than the 1978 Convention) and on patents. ISF argues that it provides a stronger protection of plant varieties against inappropriate exploitation by others (van den Hurk, 2011: 172), which therefore allows for a fair return on investments. Notwithstanding this position, the European Seed Association (ESA, 2014) has shown support to the Treaty and to the MLS, which is ‘seen as the more suitable system by the plant breeding sector’. Furthermore, ESA recently contributed to the Benefit-sharing Fund for 300.000 EUR, thereby confirming its willingness to have a functional MLS.²⁶

Regarding the second aspect, i.e. access to seeds, Ten Kate and Laird highlight that ‘shared access and reciprocity (applied to genetic resources and informa­tion on research results) constitute the norm between breeders’. As one private breeder explained (Ten Kate and Laird, 2002: 148), ‘[i]t is an unwritten rule of ethics for breeders that when someone provides genetic resources, breeders will send them information relating to the research done’. Van den Hurk confirms that it is important for the seed industry to have

sufficient freedom to operate to carry out their breeding activities and have access to the necessary plant genetic resources. This means that a flow of genetic resources should continue to take place. It is important to realize that access is required both in developed and developing countries. In the latter it may become even more important as the plant breeding sector is expanding. Moreover, genetic resources should be available for all type of users, be they small, medium-sized or large enterprises.

(Van den Hurk, 2011: 173)

ESA members use the SMTA when accessing MLS seed, because the SMTA recognizes existing IPR systems over seeds. This recognition of IPRs is the cornerstone of ESA’s position (ESA, 2012): the MLS shall respect their need for a ‘suitable framework that ensures adequate return on investment to the plant breeder for his accomplishment’, such suitable framework being the plant breeder’s rights system (PBR) as provided for within the framework of the UPOV Convention. On the contrary, the Big Five, which are more focused on high-tech biotechnological products, favour a protection based on patents.

Succeeding in imposing their voice

In 2006, the global seed market amounted to US$ 30 billion and 49 per cent of its value was owned by the ten major agro-biotech life science companies (Laird and Wynber, 2008: 15, table 3). In 2008 they controlled 55 per cent of the commercial seed market and 64 per cent of the patented seed market (Chiarolla, 2011: 49). Dur­ing the Treaty negotiations, seed companies were active as observers and as experts being part of national delegations (e.g. the US or the Netherlands). Moreover, their voice was heard during the negotiations on the SMTA between 2004 and 2006 and recently during the review process of the MLS (ESA, 2011), especially regarding the rate adopted for the benefit-sharing payment schemes.

Farmers and farmers' organizations

The many faces of farmers

The first farmers were also the first breeders (Cubero, 2011: 197): they domesti­cated wild species to transform them into crops. Farmers are the ones selecting, sparing and sowing seeds, which is a method of crop improvement called ‘bulk selection’. Bulk selection consists in choosing the seeds of the best individuals of a harvest, and to mix them to form the sowing bulk for the next season. Today, farmers have many different faces: from the prosperous entrepreneur managing highly industrialized large-scale farms in Brazil or the US, to the small-scale traditional subsistence farmer in Africa (Batta-Bjornstad, 2004: 30-31). Within the scope of this research, farmers refer primarily to smallholder farmers (or subsistence farmer) and rural people who produce their food for survival. The ‘Rural Poverty Report’ published by the International Fund for Agricultural Development²⁷ (IFAD, 2011: 16 and 46) shows that 55 per cent of the total population in developing countries are rural and that despite the current shift towards urbanization, poverty remains largely a rural problem.

Regarding the relations between farmers and seeds, Louwaars (2008: chapter 3; see also De Boef et al., 1996) describes two independent yet complementary sys­tems of crop development, with two types of farmers acting within two types of seed systems. On the one hand, farmers from industrialized countries mainly get propagating material from the formal sector. Formal seed systems are constituted by an organized and often regulated chain that includes genebanks, breeders, seed producers and seed marketing and distribution organizations. They provide tested, certified seed to farmers in an organized manner. On the other hand, small-scale subsistence farmers usually get seeds from their own holding, from neighbouring farmers and from local markets (McGuire and Sperling, 2016). These informal seed systems are

by far the most important suppliers of seed, and are particularly important for resource-poor farmers. [...] In practice, these different systems operate side by side to serve the needs of different types of farmers for different types of crops.

(Louwaars, 2008: 29)

And indeed, Halewood (Halewood et al., 2006: 179) states that ‘farmers’ sys­tems of informal exchange are crucial to: (i) their ability to constantly introduce new material into their cropping systems; (ii) maintaining high levels of diversity; (iii) maintaining relatively stable yields’.

Farmers’ movement defending their rights to save,

use, exchange and sell seeds

While farmers have always exchanged seeds freely and traditional agriculture depended on the constant exchange and movement of PGR, current regula­tions tend to hinder this practice more and more, leading to the privatization of resources. This trend limits the exchange of seeds, whereas the right of farmers to save, use, exchange and sell seeds is seen by farmers as one of the most basic foundations of the farmers’ system of PGR management, as this is how PGRFA diversity has been created and maintained (Pelegrina and Salazar, 2011: 178).

Farmers’ movements at the international level have emerged in the 1970s in reaction to the corporate driven intensification of agriculture. The most active one within the FAO fora is La Via Campesina,²⁸ which defines itself as an inter­national movement bringing together peasants, small and medium-size farmers, landless people, women farmers, indigenous people, migrants and agricultural workers from around the world to defend small-scale sustainable agriculture as a way to promote social justice and dignity (Claeys, 2014a). Other non-profit international organization supporting small farmers include GRAIN or the International Planning Committee for Food Sovereignty (IPC).

La Via Campesina, GRAIN and IPC were very active during the Treaty negotia­tions, although only participating as accredited observers, without any decision­making power. They fought most intensively for Article 9 on Farmers’ Rights in order to safeguard their practice of saving, using, exchanging and selling seeds freely, thereby allowing farmers to grow the diversity needed for their own food, provide for the different other needs of farming communities, deal with climate changes and other biotic and abiotic stresses.²⁹ Besides, Pelegrina and Salazar note that

while there are farmers and farmer groups who have started expounding on Farmers’ Rights, a large number of farmers and their organizations have yet to identify themselves with this “social construct”. No one can teach farmers about Farmers’ Rights because it is imbedded in them and it is the role of governments and other stakeholders to ensure that farmers can con­tinue with what they have been doing or strengthen their knowledge and skills for global public good.

(Pelegrina and Salazar, 2011: 177)

Farmers’ strategy

As the small-scale farmers’ priority strategy is to meet their immediate needs related to cultivation, storage, processing and consumption (Berg et al., 1991: 16),

Seeds and people 153 being able to maintain several varieties is essential to select those varieties best adapted to different fields or for different uses. This results in specific adapta­tion to micro-level agroecological niches and to cultural, economic and social needs.³⁰ To maintain this practice, farmers’ organizations demand to fully recog­nize Farmers’ Rights at the international and national levels. La Via Campesina calls for an increased awareness of the importance of farmers’ practices and for the participation of farmers and farmer communities in decision-making pro­cesses that have an impact on their lives. Pelegrina and Salazar (2011: 177-181) recall that farmers are primarily concerned about their livelihood, [i.e.] the return on their inputs and hard labour in the form of sufficient (preferably with surplus) food supply and income. It is natural for farmers to test and innovate as part of risk management measures to ensure their livelihoods. They argue that it is not just about protecting the germplasm materials, but using it to satisfy their needs. Therefore, farmers organizations stress that they need to be able to access seeds, to use and exchange them freely, including modern cultivars, to be able to feed the world’s population, to continue participating in the development and conservation of PGRFA diversity and to face unpredictable pressure such as climate change. Jarvis et al. (2011: 126) argue that enabling farmers to take a greater role in the management of their resources could increase the conserva­tion of PGRFA diversity and therefore contribute to achieve global food security.

Farmers’ rights: a claim partially heard

It is clear that farmers’ communities as such did not have much influence during the Treaty negotiations. Many farmers and farmers’ communities around the world had no clue about the Treaty negotiations happening in Rome. Those who were informed and registered as observers were divided into several groups, with little training, information and coordination. Although developing coun­tries and some developed countries (notably Norway) have fought for their cause, the result is limited. The Treaty under its Article 9 recognizes Farmers’ Rights, but they are subject to national legislation (Article 9.2) and therefore to the goodwill of national legislators and politicians. Therefore, most farmers are reluctant to engage in the Treaty discussions, as they have yet to see concrete results out of the Treaty, as translated into national policies (e.g. seed regulations) and programmes on PGR.

Farmers’ rights are a crucial aspect of the Treaty, and I believe that the Treaty’s implementation can only be successful if the farmers’ rights provisions are fully operating.

Non-governmental organizations

NGOs at FAO

NGOs are local, national or international not-for-profit groups or associations acting outside political and governmental institutions. They perform a variety

of functions e.g. bring citizens’ concerns to governments, advocate and monitor policies or encourage political participation through the provision of informa­tion. An attempt to define NGOs is provided by Peter Willetts (2011: chapter 2), where he contends that it is easier to agree on what NGOs are not than on a widely accepted definition of NGOs. Depending on the room left to NGOs to operate within specific international fora, they will influence the debate with more or less success.

Within the CBD forum, ‘non-governmental organizations, including environmental not-for-profit organizations, played a leading role in the initial conception, negotiation and adoption of the Convention on Biologi­cal Diversity, and continue to shape policy development’ (Djoghlaf, 2006). Indeed, the CBD has created an Alliance of civil society organizations³¹ aimed at facilitating more diverse, coordinated and effective civil society input into CBD policy-making. FAO³² has a more restrictive definition in which an NGO is ‘an organization which seeks funding, hires staff, and undertakes programmes, but does not realize a profit’.³³ Within the limits of this research, the focus will be directed on NGOs which have been active in the agricultural field and which have the status of observers at FAO. They are less numerous than in the wider biodiversity field. Within FAO, there is no permanent fixed location for the NGO delegate community to meet and coordinate, contrary to WTO and WIPO fora or now even within the CBD (with the Alliance).

ETC Group (Action Group on Erosion, Technology and Concentration, formerly RAFI) was the first civil society organization to draw attention to the socio-economic and scientific issues related to the conservation and use of PGRFA, IPRs and biotechnology. Within the PGRFA fora, although civil society organizations were very dynamic in the beginning of the CGRFA era (during the 1980s) (Mooney, 2011: 143), few organizations have had a strong influence on the Treaty negotiations from the 1990s onwards. Mooney states that

[i]f not sooner, the 1991 Commission meeting was certainly the last that was dominated by civil society. By the time governments met again in 1993, the Commission was thoroughly institutionalized and government delegations coming to Rome had marching orders from their capitals that demanded obedience. We could still cajole and tease but we could not decide.

(ibid: 145)

Some NGOs have been more active over the last few years, such as: the Berne Declaration, the Third World Network, or the International Planning Commit­tee for Food Sovereignty (IPC). Some of these organizations have grouped under the initiative ‘No patents on Seeds’,³⁴ which calls to rethink European patent law in biotechnology and plant breeding and to support clear regulations that exclude patentability processes for breeding, genetic material, plants and animals and food derived thereof.

The role of NGOs in the Treaty forum

NGOs are information carriers making the link between people and the poli­tics in negotiating fora. National, regional and international accredited NGOs may participate in the international PGRFA meetings as observers, but they cannot participate in the decision-making process. For example, the Southeast Asia Regional Initiatives for Community Empowerment (SEARICE, estab­lished on June 1977) is a regional non-government development organization that promotes and implements community based conservation, development and sustainable use of plant genetic resources in partnership with civil society organizations, government agencies, academic research institutions and local government units in Bhutan, Lao PDR, the Philippines, Thailand and Vietnam.³⁵

A note is made regarding the way institutions are listed as observers in Gov­erning Body reports. Under the category ‘observers from non-governmental organizations’, all sorts of entities are listed, which do not fall under the above mentioned definition of an NGO, including companies from the seed industry. Under the same category one can find universities, ‘true’ NGOs or civil society organizations, research centres, foundations, national programmes, the Interna­tional Seed Federation, etc. Therefore, one should be cautious when looking at which NGO had the status of observer for Governing Body meetings.

According to Matthews (2007: 1371), NGOs’ objectives are mainly to pro­vide information and support to country delegates, to enhance the negotiating capacity of delegates, particularly from developing countries (i.e. raising aware­ness, providing advice and technical expertise, keep delegates informed), and to achieve coherence on policy positions in different multilateral for a (ibid: 1372). However, when looking at ETC group’s website for example, the NGO clearly goes beyond that and claims that it influences public policy and institutional change. An example is given with the seed wars in the mid-1980s and 1990s, when ETC Group called attention on what they called the ‘terminator technol­ogy’ (Kloppenburg, 2004: 319), or on the then new concept of biopiracy (Lenne and Wood; Brush, 2004: 154). ETC claims that their action has led to revoke patents on crop species and human tissues.³⁶

NGOs' strategy and mixed influential outcome

Agenda 21 (chapter 27)³⁷ recognizes that NGOs hold well-established and diverse experience, expertise and capacity, and that they offer a global network that should be exploited, further enabled and strengthened in order to support efforts in achieving environmentally sound and socially responsible sustain­able development. NGOs interact in formal and informal settings where they exchange information and share knowledge, ideas and expertise. They act as facilitators by building trust. They try to increase coordination and interac­tion between NGOs and developing countries (Matthews, 2007: 1372-1373). Indeed, during the Treaty negotiations, the organization of a series of informal meetings - called the Keystone International Dialogue Series on Plant Genetic Resources and the Crucible Group - allowed NGOs and many other actors to meet in a neutral setting in order to openly discuss their views and interests. These discussions were effective in allowing these actors to seek consensual solu­tions to a range of critical issues that were then transmitted to the negotiating fora. The process created bonds of cooperation and sometimes, comradeship that have held up over the years. It did not really cause people to change posi­tions so much, but to at least be able to understand one another’s positions and find common ground where common ground was occasionally useful (Mooney, 2011: 142; Frison et al., 2011a: 8). However, unlike during the IU period, it has to be recognized that during the first decade of implementation of the Treaty, NGOs lacked influential participation and negotiating power within Governing Body meetings (Mooney, 2011).

This state of affairs contrasts with the commonly admitted view that today a larger participation of civil society in international policy negotiations has the capacity to increase efficiency, impartiality, transparency and democracy in the global policy-making process (Bevilacqua and Duncan, 2010). Indeed, within FAO, this progressive position has been officially acknowledged through the reform of the Committee on World Food Security (CFS), qualified by Olivier De Schutter (2013: 4, also see 2009) as being the ‘single most significant development in the area of global food security in recent years’. The new CFS aims at being

the foremost inclusive international and intergovernmental platform for a broad range of committed stakeholders to work together in a coordinated manner and in support of country-led processes towards the elimination of hunger and ensuring food security and nutrition for all human beings.

(CFS, 2009)

The CFS does so by creating a forum where different international stakehold­ers including governments, but also international organizations and transnational networks of civil society organizations ‘can work together to ensure that their policies converge, rather than undermining each other’s efforts’ (De Schutter, 2013: 16). Perhaps this recent progress in FAO governance will little by little ‘contaminate’ the Treaty forum too and enable NGOs’ voice to be better heard, for the benefit of all.

The Keystone International Dialogue Series and the Crucible Group

An ephemeral but important informal setting

Following the adoption of the CBD and before the conclusion of the Uruguay round of multilateral trade negotiations in 1993-1994, 28 individuals active in the field of PGRFA met three times in an informal way to discuss contentious issues related to the management of PGRFA: ‘policy concerns related to intel­lectual property over biomaterials’ (The Crucible Group, 1994: xi). This group, hosted by IDRC and coordinated by Bioversity International (at that time

Seeds and people 157 IPGRI) was called the Crucible Group (I and II). The group was composed of people from public and private institutions, developed and developing coun­tries, civil society organizations and the seed industry.³⁸ They met to continue the work done by the Keystone International Dialogue on PGR, and in par­ticular finish the ‘unfinished business’ regarding the IP agenda (ibid). They held very different views on many contentious issues regarding the international agenda for genetic resources. However, they all agreed that decisions taken in international fora could imperil the availability of PGRFA for world food security and agricultural development. They believed that it was imperative to inform decision-makers on the reality of scientists, researchers, breeders, col­lection holders: i.e. all PGRFA users. The Crucible Group did not last after the adoption of the Treaty. However, a short explanation of its output is provided below because it played an important role during the Treaty negotiations as information provider.

A fruitful and useful open multi-stakeholder dialogue without consensus

Crucible Group members could not reach agreement on many issues (and indeed, the objective was not to reach agreement, but rather to express the differing views and positions to enlighten people on each other’s interests). After several meetings and in-depth discussions, they published a book (the Crucible group, 1994; Halewood, 2000) where they identified 28 recom­mendations for policymakers, many of which related to IPR issues. Five years later, while it was not the initial intention to have a second round of discussions, most of the same persons and many others (up to 45 persons participated) decided to organize a Crucible II cycle because the develop­ments in biotechnology and genetic resources-related policies called for further solutions. Two books where published as a result of Crucible II (The Crucible Group II, 2001).

What is important to note from this initiative, is its spontaneous, informal, multi-stakeholder and non-consensus modality (Halewood, 2000: 1). Based on the beliefs and goodwill of individuals, discussions were initiated, points of views were openly exchanged, opposing parties met in an attempt to understand each other and move forward for a common goal: safeguarding access to and conservation of PGRFA for world food security and poverty alleviation. This second informal dialogue setting (the first one being the Keystone Dialogues) has accompanied and fed the formal negotiation of PGRFA management.

A failed revival

In 2013, some stakeholders wanted to recreate a ‘Crucible Group’ type of dia­logue through the organization of an informal multi-stakeholder dialogue, in order to progress on the difficult review process of the Treaty MLS and funding strategy (see above Chapter 4). While the initiative was officially welcomed at

the Fifth Session of the Governing Body (Resolution 2/2013: point 7), there was little concrete subsequent support neither from the Treaty Secretariat nor from contracting parties, and this despite the strong interest expressed by the different stakeholders participating in a two-day workshop in September 2014 (IT/OWG-EFMLS-2/14/Inf.4.1).³⁹ The workshop was jointly organized by Bioversity International and the Meridian Institute (under the guidance of Michael Lesnick and Timothy Mealey who were both facilitators during the Keystone dialogue between 1988 and 1991). Unfortunately, not much has hap­pened following this workshop and no other meeting is scheduled. Regrettably, stakeholders were not able this time to mobilize the resources to take benefit of such informal dialogue-type initiative.

Table 5.1 Synopsis of stakeholders’ objectives, positions and strategies

Stakeholders Primary

objective

Secondary Position Conservation Main technology Exchange

Qbj_ectiv_e on IPRs strategy Networks

The above description of Treaty stakeholders (see Table 5.1) provides a con­cise view of who these actors are, as well as how and why they are involved in the Treaty. To clarify at a glance their divergent interests, a summary table is provided below, stating stakeholders’ objectives with the Treaty, their positions on IPRs, their conservation strategy and the main technology they apply when using PGRFA, as well as their favourite exchange networks to access seeds. The objective of this table is to show (in a rather synthetic manner) the divergences in positions. This oversimplification is necessary to help understand why stakehold­ers have difficulties in implementing the Treaty and reaching its objectives in a speedy and collaborative way. It is contended that the reality in their positions is much more nuanced.