Governing seeds and humans in a holistic manner: towards a sustainable global seed commons

This work shows that one needs to move away from the regulation of property rights over seeds (individual ownership of objects) and shift towards regulating the relationship governing the diverse elements - humans and seeds - of a global ecosystem - nature (i.e.

Notes

1 In the present work, the words ‘seed’, ‘plant’, ‘PGRFA’, ‘material’ or ‘genetic resource’ are used interchangeably to talk about the ‘plant genetic resources for food and agriculture’ (PGRFA) as defined under Article 2 of the Plant Treaty. In simple terms, PGRFA are crops and forages (physical and informational components) used as nutriments for humans and animals; see also note 12 below.

2 For a detailed definition, see below Chapter 3.

3 Article 53(b) ‘Exceptions to patentability’ of the European Patent Convention states that ‘European patents shall not be granted in respect of: (b) plant or animal varieties or essen­tially biological processes for the production of plants or animals’.

4 According to the French High Council of Biotechnologies (HCB, 2014: 177), a native trait means ‘a trait of any kind, whether physical or chemical, the expression of which is likely to be observed in any plant, wild ecotype or cultivar of a plant species or of a sexually-compatible species (including through embryo rescue), and can be recombined by sexual crossing (with or without the use of DNA markers).

5 International Convention for the Protection of New Varieties of Plants (UPOV Conven­tion) of December 2, 1961, as revised in Geneva on November 10, 1972, on October 23, 1978, and on March 19, 1991. Text available at www.upov.int/upovlex/en/conventions/ 1991/content.html/; see also Council Regulation 2100/94/CE on Community Plant Variety Rights. For an extensive description of these matters Chiarolla (2006: 31-42). For a comparison of European and American approaches to patent protection of plants before the widening of protection scope, see Van Overwalle (1998).

6 In the USA, the Plant Patent Act of 1930 (enacted on 17 June 1930, codified as title 35 United States Code) Section 161 states that: ‘[w]hoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and require­ments of title (Amended September 3, 1954, 68 Stat. 1190)’.

7 A further important aspect that will not be addressed here relates to the laws on certifica­tion and commercialization of seeds, which also significantly impact the flexibility breed­ers and farmers may have in using and exchanging seeds (Anvar, 2008; Wattnem, 2016).

8 The law introduces a new paragraph I.

9 German law ‘Patentgesetz, PatG', Section 2a introduces the non patentability of plant varieties, animal breeds and essentially biological processes.

10 Commission Notice on certain articles of Directive 98/44/EC of the European Par­liament and of the Council on the legal protection of biotechnological inventions (2016/C 411/03), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:O J.C_.2016.411.01.0003.01.ENG&toc=OJ:C:2016:411:TOC

11 Decision of the Administrative Council of 29 June 2017 amending Rules 27 and 28 of the Implementing Regulations to the European Patent Convention ( CA/D 6/17). www. epo.org/law-practice/legal-texts/official-journal/2017/07/a56.html

12 I call ‘non-industrial seeds' 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. (Hecquet, 2015 unpublished; see also SEED, 2017).

13 See for example Monsanto's website www.monsanto.com/pages/default.aspx, Syngenta's website www.syngenta.com/global/corporate/en/Pages/home.aspx, or Bayer Crop­Science's website, available at www.cropscience.bayer.com/.

14 See the Millennium Development Goals (MDG) and in particular Target 1.C to halve, between 1990 and 2015, the proportion of people who suffer from hunger. See www. un.org/millenniumgoals/. The 2015 MDG report states that ‘current estimates suggest that about 795 million people are undernourished globally.

15 MDG Goal 1 Eradicate extreme poverty and hunger. ‘Although the MDG targets of halving the proportion of people living in extreme poverty and hunger have been met or almost met, the world is still far from reaching the MDG goal of eradicating extreme poverty and hunger. In 2015, an estimated 825 million people still live in extreme poverty and 800 million still suffer from hunger'. Eradicating poverty and hunger remains at the core of the post-2015 development agenda.

16 Numerous studies exist for different plants. Here are few examples. For wheat: Jones (2004). For fungi: Stamets (2005) who obtained a patent for his invention ‘applica­tion Ser. No. 09/678,141 for MYCOPESTICIDES, filed Oct. 3, 2000, now US Pat. No. 6,660,290'. For a general overview: Caplat (2014). For an example in El Salvador: (Laplace, 2015).

17 Altieri defines agroecology as an application of ecological science to the study, design and management of sustainable agro-eco systems. This is applied at the farm-level, but also across the global network of food production, distribution and consumption (i.e. includ­ing food production systems, processing and marketing, the role of the consumer and the policy level). Agroecology uses knowledge from many disciplines, inter alia agricultural and ecological science and traditional knowledge systems. It questions conventional approaches, which are centred on the use of science to promote economic growth.

18 Although a recent study from the Metaforum thinktank of the KU Leuven University doubts that agroecology can really feed the world, pointing to the vague definition of the concept, to the fact that agroecology cannot replace conventional agriculture and questioning whether it is judicious to replace a performant system with an agricultural system, which objectives and producing techniques are not sufficiently clear (Metaforum KU Leuven, 2015: 30-33). However, this report is easily contestable on these points when looking at the very limited number of studies and references referred to on agroecology and when keeping in mind that ‘the funding available for organic research is again negli­gible, remaining at about 2% or the total investment into agricultural research in Flanders' (showing that conventional agriculture strongly remains the dominant position) (Baret et al., 2015: 8).

International Treaty on Plant Genetic Resources for Food and Agriculture, FAO Res. 3/2001, 3 November 2001 (entered into force 29 June 2004); 2400 UNTS 379. Throughout the present research, the words ‘Treaty', ‘Plant Treaty', and ‘ITPGRFA' are used interchangeably.

The terms ‘seed' is used in lay term to designate PGRFA. This use is not in conformity with the actual definition of PGRFA or seeds. It is done so for simplicity of writing.

This chapter is a summary of the full legal analysis to be published in a separate book foreseen for 2019-2020.

This chapter derives from a stakeholder study published in 2011 by Routledge.

The theory of the commons developed following Hardin's paper on the ‘Tragedy of the Commons'. It was then widely addressed by Elinor Ostrom, whose seminal book ‘Gov­erning the Commons' revolutionized the field. The theory is explained below under the theoretical framework and is detailed in chapter 5.

The theory of the Commons gained much visibility in 2009 when Elinor Ostrom received the Nobel Prize in Economic Sciences.

Ostrom conducted wide meta-analysis of existing common-pool resources case studies. Ostrom takes stakeholders as a point of departure for her research (whether empirical or theoretical); this approach is close to the research method I have implemented in this book. With the notable exception of Michael Halewood's article (2013).

Such as the Intergovernmental Committee (IGC) on Intellectual Property, Genetic Resources and Traditional Knowledge and Folklore, or within the context of the negotia­tions on Substantive Patent Law Treaty.

The negotiations at the IGC are currently on hold, due to political holdbacks and block­ages from certain countries. See ‘US Proposes Suspension of WIPO TK Committee; Switzerland and Others Counter' (11/09/2015) by Catherine Seas for ‘IP Watch' available at www.ip-watch.org/2015/09/11/us-proposes-suspension-of-wipo-tk-committee- switzerland-and-others-counter/ (accessed on September 10, 2015).

French National Research Agency (ANR) project ‘ANR-15-CE21-0004', Common Plant, conducted by Fabien Girard.

The contributions to this volume were first presented at an international workshop titled: ‘The Commons, Plant Breeding and Agricultural Research. How to face the challenges of an increasing world population ant the preservation of agrobiodiversity', co-organized by the Maison Franpaise d'Oxford (MFO) and the Centre de Recherches Juridiques (CRJ) of Grenoble on the 30 September and 1 October 2016.

The Biosafety Cartagena Protocol to the CBD. Signed in Montreal on 29 January 2000 and entered into force on 11 September 2003. 171 Member States on 5 April 2018.

See www.ohchr.org/EN/issues/food/Pages/FoodIndex.aspx This definition is in line with the core elements of the right to food as defined by General Comment No. 12 of the United Nations Committee on Economic, Social and Cultural Rights (the body in charge of monitoring the implementation of the International Covenant on Economic, Social and Cultural Rights in those States, which are party to it). The Committee declared that ‘the right to adequate food is realized when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement. The right to adequate food shall therefore not be interpreted in a narrow or restrictive sense, which equates it with a minimum package of calories, proteins and other specific nutrients. The right to adequate food will have to be realized progressively. However, States have a core obligation to take the necessary action to mitigate and alleviate hunger even in times of natural or other disasters'. Available at www.ohchr.org/EN/issues/food/Pages/FoodIndex.aspx

34 The Office of the High Commissioner for Human Rights defines the special rapporteur ‘as an independent expert appointed by the Human Rights Council to examine and report back on a country situation or a specific human rights theme. This position is honorary and the expert is not a staff of the United Nations nor paid for his/her work. Since 1979, special mechanisms have been created by the United Nations to examine specific country situations or themes from a human rights perspective. The United Nations Commission on Human Rights, replaced by the Human Rights Council in June 2006, has mandated experts to study particular human rights issues. These experts constitute what are known as the United Nations human rights mechanisms or mandates, or the system of special procedures’. Available at www.ohchr.org/EN/issues/food/Pages/FoodIndex.aspx

35 The first special rapporteur on the Right to Food was Jean Ziegler. He performed two mandates from 2000 to 2004 and then to 2008. Olivier De Schutter succeeded with two mandates from 2008 to 2014. The current rapporteur is Hilal Elver.

36 Report ‘Crisis into opportunity: reinforcing multilateralism' presented to the Human Rights Council, Follow-up session on the Global Food Crisis at the 12th session, 17 September 2009, at pp. 1 and 22-25, available at www.srfood.org/images/stories/pdf/ officialreports/20090917_a-hrc-12-31_en.pdf. See also Report of Special Rapporteur on the Right to Food, UNITED NATIONS GENERAL ASSEMBLY (22 August 2010), available at www.righttofood.org/new/PDF/A62289.pdf.

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