Identifying invariable principles for the global seed commons

In an attempt to build on Halewood’s work and examine these (and other) loop­holes in the MLS (Frison, 2016), I focus on different principles to be taken into account in the design of an effective global seed commons.

Invariable Principle 1: Sustainability

One of the shared characteristics of the CPRs studied by Ostrom and her followers is sustainability: sustainability of the resources and of the governing institutions (Ostrom, 1990; Agrawal, 2002 : 44). These two levels of sustain­ability are interrelated and interdependent. Berge and van Laerhoven remind us that CPR theory is ‘key to understanding] under what conditions it can be expected that resource governance regimes may result in more sustainable forms of resource use’ (Berge and van Laerhoven, 2011: 161, our emphasis). This idea fits with the conservation and sustainable use objectives of the Plant Treaty and with its long-term overall goals of food security and sustainable agriculture for the benefit of the whole community (on this term, see below).

It should be further noted that sustainability is seen as a ‘dynamically maintained system condition rather than a static equilibrium’ (Agrawal, 2002: 59), i.e. users of the community manage a resource with the perspec­tive of duration and renewal in an adaptive relationship with each other and with the resources (see the importance of this aspect in Bollier, 2007). This dynamic aspect should also be expressed/allowed in the governing system at the global level (see below principle 6 for explanation of the concept of ‘dynamism’).

Finally, for sustainability to be expressed, another principle has to be realized, i.e. interdependence. As confirmed by Agrawal (who refers to Wade, 1988 and to Baland and Platteau, 1996), the ‘importance of greater interdependence among group members as a basis for building institutions that would promote sustainable resources management’ (Agrawal, 2002: 60, our emphasis).

Invariable Principle 2: Interdependence

Interdependence goes hand in hand with sustainability. As expressed by Haas, ‘[i] nterdependence, far from being the description of a condition, becomes some­thing to be realized - a purpose’ (Haas, 1975: 839). He argues that actors of many entrenched networks feel ‘enveloped in a massive “collective situation” to which there can only be a “collective response” if anyone is to attain his objectives’ (ibid: 868). He adds that ‘to study how actors learn to cope, [...] we must keep in mind why actors may wish to do better in managing resources of common concern. This brings us back to the issue of political purpose’ (ibid), i.e. the political construction of a common in the line with Dardot and Laval (2014). Haas therefore suggests the need for a coordinated and collective response to a collective action problem, highlighting the importance of ‘interdependence’ both as a precondition and above all as a purpose to be realized.

Moving to a wider level of ‘interdependence’, Capra and Mattei state that ‘recogniz[ing] the interconnectedness of our global problems [would] enable us to find appropriate, mutually supportive solutions that [...] would mirror the interdependence of the problems they address’ (Capra and Mattei, 2015: 159). This is particularly well adapted to the food and agriculture field, where interdependence is the result of long run human cooperation and collaboration in the exchange of seeds across the world. Farmers and breeders have selected, exchanged and bred seeds to develop such or such characteristic over millennia that respond to specific needs and to local conditions.²³ There is therefore an ongoing need to exchange plant genetic resources from countries all over the world.²⁴ It is this human-level sense of the word interdependence that constitutes the foundation of the concept of benefit-sharing.

It is argued that PGRFA interdependence contains a dual social and economic dimension underpinning the concept of benefit-sharing. The social dimension is understood as encompassing the formal and informal (Kalaugher et al., 2002) networks involved in governing the flows of PGRFA (Frankel, 1970: 469-489). These human networks of farmers, breeders and scientists have therefore a crucial role in safeguarding the availability of and accessibility to PGRFA diversity.²⁵ As for the economic dimension of countries’ interdependence, it is a consequence of the rapid globalization and economic integration, and of growing cross-boundary flows of trade, financial capital, technology and know­how. More specifically, interdependence between supply and use of genetic resources is much higher for the agricultural sector compared to other sectors using genetic resource such as pharmaceuticals or bio-engineering industries. Both social and economic interdependencies between stakeholders and states are intensifying and it has been argued that these trends limit states’ leeway to deal with these challenges autonomously because ‘internal dynamics are to an increasing extent determined by external processes’ (Oosterveer, 2005: 32). This judgement may partly explain why the benefit-sharing concept is so well entrenched in the management of PGRFA and so intrinsically integrated into the Plant Treaty specifically.²⁶

When applying this to PGRFA management, one can argue that awareness and solid understanding of the factual interdependencies of crops (as a scientific characteristic) and of countries (as a socio-economic result of globalization) are preconditions to put into place the multilateral access and benefit-sharing mechanism. But for the MLS to reach its overall goal of food security and sustainable agriculture, it is argued that a more profound degree of mutualism in the understanding of the criterion of interdependence is needed (Mattei, 2011a: 101-102). Interdependence is therefore an existing factual element, but is should also become a philosophical and political goal to be attained by all countries in the implementation of the international regulations for them to reach global food security.

[consequently, the resulting changes in the interaction patterns between different states and between different state and non-state actors lead to a variety of innovative forms of governance involving diverse social groups at different spatial and sectoral scales. This is generally referred to as “multi­sector and multi-level governance” or “network-based governance”.²⁷ (Oosterveer, 2005: 23, internal references omitted)

Therefore, it is argued that interdependence should be reflected in the interna­tional governance regime as both an intrinsic element necessary for the viability of the regime, and also as a political and philosophical objective to be reached and maintained, for a sustainable management of the resource in the collective interest. Digging into Burris, Drahos and Shearing’s work on nodal governance could be one way to search how this principle could be better expressed in the complex network(s) of seeds worldwide, from the local to the global level (Burris et al., 2005; Holley and Shearing, 2017).

Invariable Principle 3: Anticommons Dilemma — Underuse of Seeds as Main Erosion Risk

Related to the sustainability and interdependence invariable principles, another key issue for the conservation and management of seeds is the ‘anticommons dilemma’ (Heller, 1998; also see Fennell, 2010; Aoki, 1998). Heller defines the anticommons dilemma as occurring when ‘there are too many owners holding rights of exclusion, [then] the resource is prone to underuse’ (Heller, 1998: 624).

Inspiring an effective Plant Treaty 187 leads to depletion of the resource, but rather that underuse leads to erosion. Through ‘the process of domestication and co-evolution with humans, crops have become dependent on human beings for their continued existence; they cannot exist on their own in the wild’ (Halewood, 2013: 291 — referring to Wilkes, 1988). This is why over the last decades, as access to seeds has become more and more restricted, erosion of seed diversity has never been so wide. Halewood emphasizes that this ‘aspect of PGRFA informs the need for collec­tive action institutions that are necessary to support their continual creation/ evolution as well as ensuring that they are conserved and available for use’ (Halewood, 2013: 291). Therefore, the only sustainable way of managing seeds and avoiding the anticommons dilemma to erode PGRFA diversity is to facilitate their exchange, access and use by all users,²⁸ not only breeders and researchers, as provided for by the Treaty, but at the global level for every farmer feeding the world, including by supporting and protecting existing seed networks. Indeed, farmers constitute the large majority of day-to-day users of seeds. Hence, they are the first stewards of PGRFA conservation and sustainable use. When associating these invariable principles - sustainability, interdepen­dence, anticommons - it is easy to conclude that promoting the widest use of and access to PGRFA leads to a ‘comedy of the commons’, i.e. enhancement of use and value of the resource, as framed by Rose (Rose, 1986; also see Ver- haegen, 2015: 116). Like a virtuous circle, enhancing PGRFA use increases inter alia benefits, sustainability, interdependence, which in turn enhances PGRFA diversity and conservation for the global community.

Invariable Principle 4: Physical and Informational Components Inextricably Bound to the Use of Seeds

Following Ostrom’s lead on studying governing regimes for natural resource commons, academics have expanded the research field to information (Benkler, 1997: 2003), knowledge (Hess and Ostrom, 2003, 2006) and science commons (Reichman and Uhlir, 2003; Cook-Deegan; Dedeurwaerdere, 2006). Hess and Ostrom contend that advances in law and technology ‘have generated greater access to important information about history, science, art, literature and current events, while at the same time enabling profit-oriented firms to extract value from resources previously held in common and to establish property rights’ (Hess and Ostrom, 2003: 112). Ostrom reminds us that

[f]or most of human history, the [global commons] remained unclaimed due to a lack of technology for extracting their value and for establishing and sustaining property rights. To our peril, the technology to extracting value from [the global commons] has developed more rapidly than have the appropriate legal mechanism for establishing an effective property regime. The treasured resources for all mankind are threatened by the very techno­logical abilities that we have mastered during recent eras.

(Foreword by Ostrom in Buck, 1998: xiii)

With the advent of the Internet, CPR studies have spread to intangible mate­rial, pointing to ‘the second enclosure movement’ phrased by Boyle in 2003 (Boyle, 2003b), i.e property rights over intangible material rather than physical goods. Hess and Ostrom explain that ‘[t]he enclosure is caused by the con­flicts and contradictions between intellectual property laws and the expanded capacities of new technologies’, as an ‘outcome of new technologies and global markets’ (Hess and Ostrom, 2003: 112; also see Benkler, 1997; Boyle, 1996: 6-7). In the field of seed innovation, IPR and new technologies go hand in hand in enclosing information, technologies and access to knowledge and material tra­ditionally available, thereby facilitating the commodification of a more abstract innovation, for which a new economic value is created on the global market. See for example Monstato’s patent claim on the genetic structure of the neem tree (Marden, 1999).

As regards PGRFA, the physical and informational components are inex­tricably bound to the use of seeds.²⁹ Dedeurwaerdere confirms that PGRFA are somewhere in between the exclusive ‘natural resource commons’ and the exclusive ‘knowledge commons’, containing both a physical component and an informational component (Dedeurwaerdere, 2012, 2013). This dual component as physical and informational asset should be taken into account when considering the institutionalization of a global seed commons. It would require specific governing rules which change and adapt with the evolution of the IP protection scheme, for instance including the concept of ‘reflexivity’, i.e. ‘the ability to assess the actual consequences of existing practices in order to reform them if needed’ (Brousseau et al., 2012: 350). However, one must bear in mind that reclaiming an ‘intellectual public domain’ (Hess and Ostrom, 2003; also see in plant breeding: 2014) might not be sufficient to dis-enclose the ‘knowledge commons’, particularly when the intellectual public domain deals with high-tech information and knowledge. Public domain

is generally defined in the negative, as that which copyright does not (or no longer) protects: it is composed of elements that are by themselves unpro­tected (Dusollier, 2013). In patent law, elements may fall into the public domain as a result of public ordering: non-patentable subject matter, expiry of a patent; or they may be the result of private ordering: the decision of an inventor to publish, or the decision not to patent.

(Van Overwalle, 2018: 94; see also Dusollier, 2007)

As Van Overwalle (ibid, emphasis added) demonstrates, material included in the public domain is not protected from appropriation: ‘dedicating an inven­tion to the public may stop short of establishing and strengthening access. When renouncing a (potential) patent right and dedicating the invention to the pub­lic domain, the inventor can no longer safeguard his invention against capture’. This means that the public domain, as it stands today, is not a means to protect from misappropriation.

Information on seeds is arguably enclosed because of IPRs of course; but also because of the high-tech nature of the information. Since, for this informa­tion to de facto be accessible to people through a reclaimed ‘intellectual public domain’ would necessarily imply transfer of the related technology and train­ing, allowing users to understand and use the technology and information. This entails that facilitating access to material (whether physical, informational or both) without creating a protective scheme from misappropriation will likely continue to favour the same users (industry and research institutions from the Global North, which have the financial and technical means to use and develop the material into new products).

Examples of such attempt in plant breeding can be found in the launch of the DivSeek initiative and the Global Open Genome Sequence Data Frame­work (Piotrowski, 2015; Warthmann and Chiarolla, 2015). These initiatives to reopen access to breeding information are interesting in that they put forward an inclusive and sharing characteristic in order to promote research in the field of food and agriculture. However, besides the fact that these initiatives will only reach specific categories of seed users (biotech industry and researchers), de facto excluding users who do not have the adequate training and technology to benefit from them, they contribute to pushing further the erasing of the material/physical component of the seed, making it more and more intangible and therefore more and more disconnected from the environment and ecosystem in which varieties live and evolve. These various elements can be seen by some stakeholders as constitutive blocks to recreate an open arena for the private sector to use resources without being obliged by international benefit-sharing obligations from the Treaty or the Nagoya Protocol.

Furthermore, other attempts to ‘reopen’ access to seed varieties through ‘open source’ systems arise in several countries, such as the Open Source Seed Initiative (OSSI) in the USA,³⁰ the Cambia BiOS (Tsioumani et al., 2016), but still need to demonstrate their effectiveness (see Diebel, 2018; Van Overwalle, 2018 for further information on these open source initiatives). In addition, these initia­tives using copyleft licensing tools are based on IPRs (Santilli, 2012 : 257-270). As stressed by Van Overwalle (2018 : 97), ‘this is by far the most striking - and unexpected - feature of the open source model: open source is based on IP’ (also see Benkler, 2002; Rai, 2005).

Invariable Principle 5: Global Seed Community

Whether studying the meadows and forest communal tenures of Torbel in Swit­zerland or of Hirano in Japan, or the Huerta irrigation institutions in Valencia and Alicante in Spain, Ostrom has systematically analysed a collective manage­ment system from specific and relatively clearly defined small/local communities (Ostrom, 1990). Bollier insists that a community is one of the three constitu­tive elements of a commons, along with a resource and a set of social protocols (Bollier, 2014: 15).

A commons becomes a commons only when commoners decide collectively to commoning resources, i.e. manage in a fair and equitable way the access to and use of a resource in the collective interest (ibid: 15). But how can a community be identified? What/who constitutes ‘a community’? Who are ‘the commoners’ (ibid; also see: Bollier and Helfrich, 2014)? Is there a ‘Plant Treaty community’ or several complementary communities involved in the Plant Treaty system? This paragraph will bring more questions than answers.

Baland and Platteau define a community as an arena where ‘all members of a social group have an access to the local resources’ (Baland and Platteau, 1998a: 644). This definition implies belonging to an identified social group, and a notion of (local) scale. The question of scale has focused attention of many commons scholars, in particular in trying to identify whether group size was necessarily a factor of success (or failure) of a long-enduring commons. Agrawal summarizes these studies and states that the impact of group size on effectiveness of collective action is mediated by many different factors: production technol­ogy of the collective good, its degree of excludability, jointness of supply and the level of heterogeneity in the group (Agrawal, 2002: 59-60). He stresses that more research is needed on the relation between group size and success of col­lective action. In the Plant Treaty arena, scale of the community is certainly a crucial issue. Authors have referred to the ‘Global Seed Commons’, setting the scale of reference at the global level. Are we to understand that a global com­munity of seed users exists? Would this global community be constituted by all the sub-communities coexisting and co-managing PGRFA? For now, the Treaty answers fairly well the needs of the researcher-breeder sub-community and not of the farmers. However, seeds are used by many other stakeholders, the largest group being farmers.

This raises questions of legitimacy in the recognition of de jure and de facto holders, and leads to the second aspect, i.e. the notion of ‘(Global) Community’ and therefore of heterogeneity of members. Rights of de facto holders, i.e. farmers, should be taken into account and heard to create and develop the global seed community apt to sustainably manage the global seed commons. But how to define farmers’ communities? Is it simply ‘all farm­ers’? Smallholder and subsistence farmers? What about local communities (as referred to in the Treaty), and indigenous communities (as enshrined in the CBD)? The Multilateral System of the Treaty facilitates access to Annex I PGRFA for ‘research, breeding and training’ purposes (Article 12.3(a)). Does this imply that the MLS community is restricted to breeders, researchers and trainers? If so, this is clearly inconsistent with other invariable principles (sustainability, interdependence, anticommons dilemma) which call for a wid­est access and use of seeds as possible for reaching the Treaty’s overall goals of food security and sustainable agriculture. Restricting the community to breeders and researchers could also be seen as contradicting Articles 5 and 6 (on the conservation and sustainable use of PGRFA) and 18 (on the funding strategy) of the Treaty which rather call for including farmers in the Treaty’s ‘global community’.

Defining who is part of the community is crucial as it sets the legitimacy for rights claims for managing the resources. In other words, only those members that are part of the community may collectively manage (and benefit from) the resource. In the Treaty, farmers are clearly identified as the target group for benefit-sharing (the first benefit of which being facilitated access to seeds). Should this then automatically equate to a right to collectively manage the resource³¹ at that global level (and not relegate this right subject to national legislation - and therefore recognition). To be congruent with the objectives of the Treaty, recognizing the fundamental role of farmers in the sustainable use and conservation of PGRFA and in their key role as food producer, as well as identi­fying the community of farmers as a targeted beneficiary should automatically integrate this category of ‘users/commoners’ as part of the ‘management team’ of the Treaty, i.e. the Governing Body and its resulting tools and instruments.

A final note is to be made on the concept of community and its related impli­cation with the notion of exclusion. Community necessarily implies members being part of the group, and people being out of the group, i.e. excluded. This clearly points to the notion of boundaries and scope of a management system. But can we talk about a community and therefore exclude people from the MLS when we are dealing with accessing and producing food, which is a universal human need? Is the community, and its attendant exclusive dimension, a relevant concept to tackle a subject for which interdependence of plants, people and institutions are so deeply intermingled into one another that inclusion should be the rule rather than exclusion?

What role would states have in contributing to define and implement the rules for this global community as a fundamental norm as well as a limitation to the imbalance of powers expressed in international law instruments? Can/ should states participate in representing the interests of farmers and their com­munities, thereby actively trying to include weaker stakeholders in the negotia­tion and implementation forum?

Invariable Principle 6: Diversity, Heterogeneity and Complexity

Ostrom’s eighth design principle on ‘nested enterprises’ (Ostrom, 2009) is premised on the assumption that larger commons might be more complex to govern than smaller ones. Later, further studies developed this intuition, show­ing that heterogeneity, diversity and complexity in CPRs (see inter alia Berkes et al., 2008; Ostrom, 2005; Jungcurt, 2007; Cox et al., 2010) were important aspects to take into account. In studying the character of an adaptive system to a changing context, Dedeurwaerdere pointed to the importance of the modular character of organizational architecture (Dedeurwaerdere, 2012). This modular character of organizational architecture has to be recognized and facilitated in the design of the institutional managing systems. I understand modularity as allowing adapted ‘governance nodes’ (i.e. communities at various levels and scales), both on horizontal and vertical scales, to govern, react and evolve accord­ing to external and internal factors. This embeddedness of systems enables to express diversity, heterogeneity and complexity at all levels and scales. As Ostrom and Basurto put it

[w]e do not need to be complex, however, just for the sake of being com­plex, but we do need to get over our simplicity hang-ups. Obviously, our theories will always be simpler than the worlds we study, or we are trying to reproduce these worlds rather than a theory of these worlds. Given the complex, nested systems of the biophysical world, however, we need to develop a social science of complex, nested systems.

(Ostrom and Basurto, 2011: 337)

This is particularly true in today’s context where climate change and other haz­ards impose quick, reactive and adaptive responses.

Unfortunately, globalization and the homogenization of biodiversity govern­ing regimes hinder the emergence of institutional diversity Roa-Rodriguez and Van Dooren stress that

[t]he dynamics unleashed by IP and sovereign regimes are transforming the varied common spaces, with their multiple modalities of access, use and alienation of resources, into a de facto homogeneous commons space where the negative and exclusive characteristics are predominant. This is a highly undesirable outcome if our true goal is the conservation and sustainable use of [plant genetic resources] for the well-being of society at large.

(Roa-Rodriguez and Van Dooren, 2008: 193-194)

Indeed, it is crucial to allow local practices and traditional knowledge related to seeds to continue being used and exchanged by farmers. Imposing a single (market- driven) path for seed conservation and use governance regime is not an option, as demonstrated by the drastic erosion of agrobiodiversity over the last decades.

In my view, effectively reaching the Treaty’s objectives of conservation, sus­tainable use and ABS is only possible when taking into account the need for flexibility, diversity and dynamism in the management of all PGRFA, of PGRFA networks and PGRFA conservation systems worldwide. This does not mean that the proposed governance mechanism has to be complex. Quite the contrary, its core elements should remain simple to be easily implemented in all different settings. But simple does not mean homogeneous. Indeed, setting a homogenous, one-size-fits-all solution (that of the commercial value of seeds as highly techno­logically improved material) whereby exclusion is the prevailing characteristic in the management rules, will not work out for seeds. Seeds can only survive and develop through diversity and heterogeneity, movement, adaptation and constant use and human interaction. However, Agrawal warns that ‘[h]eterogeneities of endowments have a positive effect on resource management while heteroge­neities of identities and interests create obstacles to collective action’ (Agrawal, 2002: 60 - citing Baland and Platteau, 1996; also see Libecap, 1994). Legal and stakeholders’ analyses of the Treaty (Frison, 2016; Frison et al., 2011a,2011b)

Inspiring an effective Plant Treaty 193 have revealed the heterogeneities of identities and of interests. In my view, this is a crucial element to take into consideration when investigating solutions to the MLS governing constraints.