Farmers' rights

The concept of farmers’ rights is an important topic in light of the theory of the commons because it is based on several important principles embedded in the theory: the notion of (farmers’) community, the notion of self-organization, the idea of access and use of resources rights, etc.

Defining farmers' rights

Farmers’ rights have been one of the most contentious Treaty provision to be negotiated. The increasing ‘hyper-ownership’ (Safrin, 2004) over seeds during the end of the twentieth century has fed a rising debate among FAO Member states about the ‘asymmetric benefits accruing to farmers and breeders. Farm­ers, whose efforts over centuries in improving and selecting farmers’ varieties have made an immense contribution to modern agriculture, and the producers of commercial varieties that take these farmers’ varieties as a starting point and reap the benefits from what were characterized as relatively small improvements’ (Moore and Tymowski, 2005: 67). Farmers’ rights (FR) were initially conceived to be a formal recognition of farmer communities’ conservation and selection efforts over millennia and a formal means allowing them to participate in the benefits derived from the use of improved seeds. Has the Treaty provision, as drafted in its Article 9, succeeded in this purpose?

During the negotiation of the Treaty, agreeing on a definition of FRs was extremely difficult (Moore and Tymowski, 2005: 67-78). Stakeholders had dif­ferent understandings of the concept (Brush, 2005 : 90; Oguamanam, 2007; De Jonge and Louwaars, 2009; Aoki, 2010), which made it extremely difficult for contracting parties to agree on a coherent bundle of rights to define the legal concept of FRs in the Treaty. At the end of the day, Article 9 resulted in vague obligations at the discretion of national governments.

This downgrading has created a legal imbalance between strong interna­tionally recognized proprietary rights over improved seeds and internationally

The Treaty on Plant Genetic Resources 91 weak - not to say non-existent - FRs over the vast majority of the World’s PGRFA. In that sense, I disagree with Moore and Tymoswki who state that the Treaty text is ‘neutral’ in this regard (Moore and Tymowski, 2005: 75). By explicitly refusing to recognize FRs at the international level, in a similar way to breeders’ rights, the Treaty favours the position of the breeding sector and does not take advantage of its position to promote seed exchanges between farmers, which is a critical practice for food security and agrobiodiversity con­servation (Coomes et al., 2015; Pautasso et al., 2013). Indeed, the implementa­tion of FRs is ‘subject to national legislation’ ‘in accordance with contracting parties’ needs and priorities’ and takes place ‘as appropriate’. On the contrary, IPRs are explicitly recognized in Article 12.3(f) and SMTA Article 5(d) and particularly Article 6.10 and contracting parties are requested to respect and enforce these rights. Furthermore, by creating a benefit-sharing mechanism mostly focused on the collection of financial outcomes originating from the enforcement of IPRs in the MLS, it necessarily reinforces the international recognition of IPRs to the detriment of FRs. This point raises the question of the ‘mutual supportiveness’ of the MLS and FRs.

However, there is a significant nuance in the weight recognized for both these rights. The nuance resides in the fact that IPRs provide a property right for a certain period of time while FRs recognize a stewardship right with no time limit. The current international regime complex strongly recognizes individual property rights for the benefit of one owner versus collective use practices for the benefit of humanity. Why, in our present system of value, does an individual property right have more weight than collective stewardship? The justification for this imbalance in rights’ recognition can be questioned (Morten Haugen,

2014). Both farmers and breeders need seeds to work. Both stakeholders select varieties, improve and conserve them. They both need access to a diversity of genetic material (although not necessarily the same type of material). However, farmer communities are the ones which, through the ancestral practice to save, use and exchange PGRFA, developed all existing PGRFA which breeders use daily (with the exception of crop wild relatives). Why should this not be for­mally recognized and enforced at the international level (i.e. in the MLS)? And above all, why should these traditional practices, of which breeders benefit every day, be rejected at the benefit of biotechnology and dematerialization of breed­ing technics? I believe it is contrary to interests of humanity, including breeders’ long-term interests. I believe a diversity of systems and rights could coexist.

Implementing farmers rights

Although attention is growing on the need to help countries in designing FRs policies and legislations (Resolution 7/2017), FRs are still poorly implemented

in national legislations (Andersen and Winge, 2009).

Against this background and to mitigate this weakness, contracting parties have systematically included farmers’ rights on the agenda of the Governing Body, since its Second Session, and six Resolutions have been adopted (2/2007; 6/2009; 6/2011; 8/2013; 5/2015; 7/2017). This systematic inclusion of the matter in the Governing Body agenda and in resolutions clearly shows the desire of a majority of contracting parties to the Treaty to render FRs effective and up-grade it to a wider recognition at the international level. But most of the resolutions had little substance. Only the recently adopted Resolution 7/2017 represents a big step forward through the establishment of an Ad Hoc Techni­cal Expert Group on Farmers’ Rights whose role is to ‘produce an inventory of national measures that may be adopted, best practices and lessons learned from the realization of Farmers’ Rights, as set out in Article 9 of the International Treaty’; and ‘based on the inventory, develop options for encouraging, guiding and promoting the realization of Farmers’ Rights as set out in Article 9 of the International Treaty’.

With the same objective to advance the realization of FRs and following rec­ommendations made in several Treaty resolutions, three important workshops were held: the Informal International Consultation on Farmers’ Rights held in Lusaka, Zambia, in 2007; the Global Consultation on Farmers’ Rights that took place in Addis Ababa, Ethiopia, in 2010; and the Global Consultation on Farmers’ Rights held in Bali, Indonesia, in 2016. These consultations encourage contracting parties in developing national action plans for the implementation of Article 9, and to share information regarding progress with the development and implementation of such action plans. Following the call to share information (Resolution 8/2013: point 5), in-depth reports have been sent to the Treaty Sec­retariat by several stakeholders at GB 6 (Greiber et al. (IUCN), 2015; Shashikant and Meienberg, 2015; La Via Campesina and GRAIN, 2015; ESA, 2015). These activities contribute to raise awareness and highlight the importance of capac­ity building activities (Article 13.2(c)), but due to lack of funds these activities remain limited (IT/GB-3/09/Report Appendix A: 41; Semences Paysannes,

2015), even when taking into account the BSF projects (the Treaty Secretariat launched four calls for projects, in 2011, 2013, 2015 and 2017).

Besides the clear craze for the Benefit-sharing Fund round calls³⁰ by which the Treaty Secretariat aim at funding benefit-sharing projects in developing countries, stakeholders also manifest their interest in the question of FRs imple­mentation by other means. A Joint Capacity Building Programme was set up between the Plant Treaty, the Global Forum on Agricultural Research (GFAR) and other organizations including Bioversity International to respond to the lim­ited capacity of governments to implement FRs, with the hope (depending on funding) to lead to a stable and systematic capacity building programme similar to the one set up by the UNEP-GEF for the implementation of the Biosafety Protocol in more than 100 developing countries (UNEP-GEF, n.d.; Frison and Joie, 2006a, 2006b).

Implementation of FRs could also significantly benefit from an explicit recog­nition of farmers’ direct access to MLS seeds. The MLS facilitates seed exchanges solely for the purpose of research, training and breeding (Treaty Article 12.3 (a)) with no mention of direct use by farmers, while the SMTA has a clear focus on commercialization of improved seeds, and defines what a ‘product’ or a PGRFA ‘under development’ is and what is understood under the terms ‘sales’ and ‘com­mercialization’ (SMTA Article 2). These terms are far away from what consti­tute the daily lives of millions of farmers feeding a majority of the population around the world. As mentioned earlier, the fact that Article 9 is not integrated within the MLS (keeping farmers aside from the innovation line as passive users) has created an imbalance of rights, which may be partly mitigated by reinforc­ing the mutual supportiveness of the MLS and Article 9 through their common implementation. Point 7 of Resolution 8/2013 recognizes explicitly for the first time that farmers, local and indigenous communities should have direct access to MLS seeds. Recognizing the right for farmers to directly access MLS seeds (even in ‘soft’ terms such as ‘invites contracting parties to promote access [...] by farmers’) constitutes another further step, which consolidates the link between Article 9 and the MLS.

A related aspect deals with the viability of farmers’ seed networks. Studies have shown the importance — including for the formal seed sector — of the informal seed networks in the conservation, sustainable use of and access to PGRFA (Louwaars and De Boef, 2012; Coomes et al., 2015; McGuire and Sperling,

2016). Much flexibility will be needed in maintaining the diversity of existing seed systems in order to create a mutually supportive framework, rather than the current international framework largely favouring breeders’ rights and strict, formal variety release and seed certification legislations.

A final comment is made regarding the interrelationship between FRs and WIPO/UPOV As the analysis in Chapter 3 has demonstrated, international and national formal instruments promoting breeders’ rights and dealing with seed release and commercialization (negatively) impact informal seed networks and the maintenance of the common practice of farmers to save, exchange and use seeds (Anvar, 2008; Louwaars et al., 2005, 2006; Louwaars, 2008; Andersen, 2015). The Governing Body has acknowledged the need to further understand the rela­tionship between the Treaty MLS and UPOV/WIPO international instruments (Resolution 10/2015). A timid collaboration was set up (Resolution 7/2017: §§ 11-12), inter alia through the organization of a ‘Symposium on possible interrelations between the International Treaty on Plant Genetic Resources for Food and Agriculture and the International Convention for the Protection of New Varieties of Plants’ by UPOV However, these two institutions have not yet meaningfully taken up the subject into their agendas, although Treaty stakehold­ers³¹ have clearly highlighted the difficult cohabitation of both FRs and breed­ers’ rights systems,³² and call for further collaborative work to promote a truly mutually supportive global system. This is clearly not an easy task. It will need to overcome the almost 30 years of competition on the primacy of either concepts of breeder’s rights or FRs (Halewood, 2014: 300). However, such a mutually supportive system is a desirable and feasible option (Bertacchini, 2008; Bocci et al., 2011; Chiarolla and Jungcurt, 2011) and sui generis options for plant variety protection in developing countries have already been put on the table (Correa, 2015). What is needed now is for states to effectively embrace the matter, which is mainly a political decision.

To conclude on the analysis of farmers’ rights, it is clear that the lack of for­mal recognition of these rights at the international level - in contrast with the strong recognition of IPRs - create an imbalance of rights which prevents the Treaty from functioning effectively. By denying a formal recognition of rights protecting the present role of farmers (in breeding innovation and in producing our food) at the same level of IPRs, the effectiveness of the Treaty is imperilled. However, throughout every Governing Body Resolution on FRs, the subject has been dug further and further down to concrete matters in order to render the abstract and vague obligations under Article 9 more tangible. Every step taken by contracting parties individually, or collectively through the Governing Body, and by other institutions and stakeholders upon the Governing Body’s request, contributes to clarifying states’ conduct in implementing FRs and the outcome to be reached. De facto, FRs become more substantial, more specific, and therefore more easily implementable, even though there is no agreement on one precise definition as to what is covered under the concept of FRs. The out­come of the forthcoming ‘UN Declaration on the rights of peasants and other people working in rural areas’ might also bring some flesh to the recognition and implementation of FRs. Promoting a stronger collaboration with existing international instruments such as the Nagoya Protocol, which recognizes right to communities and aim at protecting their innovation, may also contribute to reaching this objective.