Redesigning a global seed commons

Undeniably, the Treaty can be considered a fertile ground for institutional innovation: it invented the Multilateral System of access and benefit-sharing as a unique collective exchange mechanism; it created the Third Party Beneficiary concept to safeguard the collective interests of the MLS; it took first steps to for­mally recognize Farmers’ Rights; and it established a Benefit-sharing Fund (BSF) as trust account for farmers; thereby de facto creating an instrument reflecting concepts inspired from the theory of the commons (for a more critical view see Thomas, 2017).

The legal and stakeholder analyses (in this book Chapters 4 and 5) have shown that what authors have call ‘global crop commons’ exists but that its functioning is not efficient in reaching the Treaty’s objectives of food security and sustain­able agriculture. The review process of the Multilateral System of the Treaty launched at the Fifth Session of the Governing Body in 2013 confirms this statement. The ongoing review shows that the Treaty forum is reactive and will­ing to function effectively, and that it remains a fertile ground for innovation in creating institutional settings for collective management of common resources.

Along this line of thought, it is hoped that the present work may modestly contribute to bringing new ideas and different perspectives to the Governing Body debates. To this end, the final section of this chapter aims at formulating proposals to mitigate the constraints identified within the eight topics covered in Chapter 4. The recommendations made are centred on the conceptual con­straints identified (e.g. imbalance of power between FRs and IPRs), rather than on the concrete technical constraints (e.g. difficulties for contracting parties to ‘designate’ to the Treaty secretariat the PGRFA under their management and control). The reason for this choice is that making concrete proposals to address technical problems would require very specific and different expertise and competencies, which the author of the present work does not claim to have.

Similarly to Chapter 4, this section is divided into eight paragraphs (see Table 6.1): sustainable agriculture and food security; scope; Farmers’ Rights; facilitated access; benefit-sharing and the Benefit-sharing Fund; information and

Table 6.1 Treaty topics, conceptual constraints and relevant commons invariable principles (original material for this book)

knowledge; Third Party Beneficiary; and participation and governance.

Inspiring an effective Plant Treaty 195 of smallholder farmers. In order to provide a quick overview of this section, a table summarizes its content.

Sustainable agriculture and food security

For this first Treaty topic, the main conceptual constraint identified in the legal and stakeholder analyses and impeding the achievement of a truly effec­tive global seed commons relates to the fact that food security and sustainable agriculture are two overall goals of the Treaty instead of being direct objec­tives. Indeed, having sustainable agriculture and food security as overall goals maintains some distance with the concrete implementation actions undertaken by contracting parties. Decisions and actions taken by the Governing Body are directed towards conservation, sustainable use and ABS purposes, not necessarily towards food security and sustainable agriculture as a whole.

Furthermore, the above analyses have shown that the implementation of the Treaty does not reach its direct objectives of conservation, sustainable use and ABS for all its stakeholders, and hence its overall objectives of food security and sustainable agriculture. These direct objectives will not be achieved as long as they are dissociated from the primary activity of farming and seed ‘commoning’ (Bollier, 2014), i.e. food production. Focusing more strongly and more directly on the overall goals of the Treaty could contribute to formally designate food security and sustainable agriculture as the main objectives of the Treaty. This would also be consistent with recognizing that the primary role of farmers is producing food.

Bringing back the sustainable agriculture as a central objective of the Treaty would respond to the important underlying principle of the commons theory: sustainability of resources and institutions are crucial for effective commons to last in time and adapt to changes. Pushing further this principle towards sustain­ability of ecosystems (i.e. integrating the commons ‘resource-institution’ pair into its wider ecosystem) might be even more effective.

Doing so can be justified in several ways. First, it would follow the idea expressed in the preamble of the Treaty whereby the Treaty is positioned within an already established set of international instruments and fora dealing with sus­tainability and food security. Indeed, paragraphs 4, 5 and 15 of the Treaty pream­ble place the negotiation of the Treaty process within the ambit of FAO, and the existing (non-binding) voluntary international instruments dealing with PGRFA conservation and sustainable use, i.e. the Rome Declaration on World Food Security, the World Food Summit Plan of Action and the Global Plan of Action for the Conservation and Sustainable Use of PGRFA.³² Reinforcing this link would also fit in the current international community’s discussion on Sustainable Development Goals adopted in 2015 and with the developments taking place in the UN Human Rights Council on the Rights of Peasants and Other People Working in Rural Areas. Second, this would also allow for a debate on whether the objective of the Treaty should be food security or its competing concept food sovereignty, thereby opening a discussion on the self-determination of

farmers in a transparent manner.³³ This would contribute to opening the Treaty system to all stakeholders, as all stakeholders are concerned with food security and sustainable agriculture, while within the current terms of the MLS, not all stakeholders are concerned with ABS (i.e. only breeders, researchers and train­ers). Doing so could contribute to widening the scope of the MLS.

Recommendation 1: Formal recognition of food and nutrition security and sustainable agriculture as direct objectives of the Treaty.

Scope

Regarding the second Treaty topic, the conceptual constraint identified in the Treaty analysis lies in the difference in scope between the Treaty and the MLS. The problem of the boundaries of the global seed commons is a real problem and is twofold. First the Treaty applies to all PGRFA and rules mainly on con­servation and sustainable use obligations while the MLS applies to the Annex I list of 64 crops and forages and rules on access and benefit-sharing obligations. Second, at the level of the contracting parties, the Treaty is not (yet) truly global, as there are 145 members, with important countries — in terms of genebanks and genetic diversity - remaining outside of the system (e.g.

Regarding the first issue, the difference in scope leads to an overall dysfunction in the implementation of Treaty and MLS obligations by contracting parties. Having a MLS functioning only for 64 crops and forages significantly com­plicates the governing rules of the system. Indeed, in order to design the tools and instruments to implement these obligations, contracting parties have had to create tracking and identification obligations (not foreseen in the Treaty) which constitute heavy administrative burdens, complicating the implementation of the system. Examples of such burden are the difficulty for many contracting parties

Inspiring an effective Plant Treaty 197 to designate to the Treaty Secretariat what PGRFA are under their management and control and the resulting SMTA tracking obligation. Indeed, the Treaty requires for the access to seeds to be ‘accorded expeditiously, without the need to track individual accessions and free of charge’. However, the SMTA creates a tracking obligation by the need to list the material provided in an annex to the SMTA and to report systematically to the Treaty Secretariat. Therefore, there is a contradiction between the initial obligation (expeditious access without tracking) and the instrument designed by the Governing Body to implement that obligation (which creates tracking). It is therefore crucial to resolve this conflict of obligations between provisions of the Treaty and the MLS and those of the SMTA.

The second issue related to the scope deals with the boundaries of the Treaty memberships. The fact that China, Russia, the US and other countries are not yet contracting parties allows for an easy free-riding of the system, i.e. PGRFA can be accessed in genebanks from non-member countries without using the SMTA. Indeed, the US for example detains the largest genebank in the world. China and Russia also have very large collections of PGRFA. If these three nations alone were contracting parties to the Treaty, the boundaries of the global seed commons would be geographically much closer to being truly global and free-riding would be much more difficult.

It was shown above that in order to have an effective global seed commons, the invariable principles of interdependence and anticommons dilemma have to be taken into account in the institutional design. Widening the scope of the MLS to all PGRFA and expanding the membership boundaries of the Treaty would allow for these invariable principles to be respected. Indeed: 1) interdependence requires collaboration and exchanges between all countries and for all PGRFA; 2) resolving the anticommons dilemma for seeds requires an easy access and use by as many users as possible. However, this solution alone would not be suffi­cient. It would need to be coupled with a review of the payment scheme fund­ing the MLS, which is under review by the Governing Body. Indeed, access is currently related to the payment of monetary benefits to the BSF, under specific conditions. Access to PGRFA and payment should be dissociated in order for the proposal to include all PGRFA in the MLS to constitute an effective answer to the problem of dichotomy of scope and free-riding.

Recommendation 2: harmonize the scope of the MLS with that of the Treaty to include all PGRFA and expand the boundaries of the Treaty to make it truly global, while turning the MLS into a ‘protected public domain’ to avoid misappropriation.

Farmers' Rights

The conceptual constraint related to this third Treaty topic is certainly one of the most important identified in the overall analysis of the Treaty: there is no real recognition of FRs at the international level while there is a very strong rec­ognition of IPRs. There is recognition of the role farmers played for millennia

in conserving and developing PGRFA diversity, but this recognition is not accompanied by actual de jure rights protected at the level of international law. This creates a strong imbalance in rights penalizing farmers. This imbalance is entrenched in the Treaty’s tools and instruments, i.e. the MLS and SMTA, which recognize innovation as being the role of breeders and not of farmers. This reflects the strong beliefs that technological innovation is the only relevant innovation apt to end hunger and biodiversity erosion, thereby ignoring the relevance of different, informal innovations by farmers (Coomes et al., 2015; Demeulenaere and Goulet, 2012; Pautasso et al., 2013).

The Treaty provides only a weak recognition of farmers’ rights to be imple­mented at the national level. The Treaty does not provide for facilitated access to PGRFA for direct use by farmers and it does not facilitate access to improved seeds and technology particularly to the smallholder farmers of the South. Nei­ther does it provide clear tools to promote and respect existing seed networks, which are core to farmers’ resilience and food production. This represents a major contradiction with the fact that those farmers are feeding the world (FAO, 2010, 2014a; Graeub et al., 2016). With major climatic hazards likely to arise more often and more severely in the future, it is imperative that farmers be able to access seeds and relevant technology, enabling them to continue to maintain a wide agrobiodiversity, to innovate and to adapt in order to face these risks and to continue feeding the world population.

Furthermore, there is a major discrepancy between the intended beneficiaries of the MLS and those who really benefit. The benefit-sharing clause (Plant Treaty Article 13) focuses on farmers as main beneficiaries. But the first benefit, i.e. the facilitated access, is essentially directed towards breeders, while farmers clearly still do not benefit directly from this facilitated access, which is limited to research, breeding and training purposes.³⁴

FRs should be formally recognized at the international level, at the same level as IPRs so as to rebalance rights and to stop penalizing farmers. One way of formalizing this recognition is to grant direct access to farmers to MLS seeds for their direct use, exchange, etc. Doing so would allow for a sort of ‘renewed farmers’ exemption’ to exist for PGRFA covered by the MLS. A complementary way is to include farmers in the decision-making process, not only at the national level (and encourage this through sharing of experience, help in design of national legislations and policies etc.), but also at the international level in the management of the Treaty, the MLS and the Benefit-sharing Fund.

Doing so would resolve the anticommons dilemma by allowing for maxi­mum users of PGRFA diversity to access, sustainably use and conserve seeds. It would also safeguard the interdependence link binding all PGRFA users, thereby increasing communities’ self-determination in producing their own food (i.e. enhancing sustainability and reaching food security). Finally, it would expand the sense of belonging to one same global community that is composed of different heterogeneous communities, instead of ostracizing farmers from the community of Treaty stakeholders.

Besides, it is the right moment to recognize farmers’ rights at the international level. Indeed, progress is made on the implementation of the right to food, on the ‘Zero Hunger’ sustainable development goal, and on the negotiation of the UN Declaration on the Rights of Peasants and other People Working in Rural Areas. Now is the moment to progress on this fundamental issue. The Global Consultation of farmers’ rights which was requested by the Governing Body to follow-up the implementation of Resolution 5/2015, took place in 2016 in Bali.³⁵ The Treaty secretariat had prepared an electronic survey to gather views, perceptions, options and approaches and possible strategies and options for the implementation of farmers’ rights. The survey was also aimed at gathering inputs for the preparation of a study on lessons learned. Following this impulse, the Seventh Governing Body of the Treaty adopted a Resolution creating of a working group on farmers’ rights. Let us see whether this important step be accelerate the pace of their recognition both at national and international levels.

Recommendation 3: Formal recognition of farmers’ rights at the international law level and commitment to implement these rights at the national level.

Facilitated access

One of the key innovations of the MLS is the design of a collective mechanism to facilitate access to PGRFA. It is the fourth Treaty topic covered in Chapter 5. The main conclusion resulting from this analysis is that facilitated access func­tions for specific Treaty users (i.e. breeders and researchers) but that it fails to benefit the supposedly primary beneficiaries of the MLS (i.e. farmers), thereby creating an unequal dual system. Two conceptual constraints explain this situ­ation. First, farmers are relegated to a role of beneficiary of the MLS, but the first benefit (accessing seed) is not recognized for them. This is at odds with their fundamental role in feeding the world and conserving PGRFA sustainably. Second, hyperownership through expanded IPRs has almost suppressed farmers’ exemption in accessing protected (improved) PGRFA.

The issue of PGRFA access by farmers for direct use

When integrating the commons invariable principles most relevant to the question of facilitated access to seeds (anticommons dilemma, community and interdependence), the need to recognize that access should first and foremost be facilitated for farmers (i.e. for all their needs, not just for breeding, research and training purposes) appears clearly as a necessity. Treaty provisions dealing with conservation and sustainable use activities create a first set of obligations in which farmers play a central role; the MLS, which aims at promoting breed­ing and research activities to develop improved varieties, constitutes a separate set of obligations, in which breeders and researchers are the main actors. These two sets of obligations stress the fact that different PGRFA communities are expected to play different roles. This leads to two main questions: first, what about the primary role of a farmer, i.e. producing food? Should this role not be recognized and integrated in the Treaty system? Second, why dissociate the roles and sets of obligations (farmers conserving and using sustainably/breeders improving PGRFA)? Doing so recognizes only modern technology as valuable innovation and negates informal innovation by farmers. However, these different sets of obligations are all interrelated. There may be no efficient conservation and sustainable use of PGRFA without access to as wide a diversity as possible of PGRFA varieties and without use of that diversity by as many different stake­holders as possible. It is unrealistic to imagine that conservation and sustainable use of PGRFA will be achieved while dissociated them from the end activity of producing food. This is directly linked to the issue of the objectives of the Treaty (above in § 1), where it is recommended that sustainable agriculture and food security be recognized as direct objectives. Furthermore, it is unrealistic to imagine that conservation and sustainable use of PGRFA will be achieved as long as these separate communities (farmers vs. breeders and researchers) are kept separate.

Acknowledging this state of facts, the CGIAR centres have always provided access to PGRFA for farmers, whether for research and breeding or for direct use for cultivation, and whether for unimproved or improved material. The material provided to farmers was transferred under favourable conditions, avoiding exces­sive cost and stringent IP conditions. However, this takes place for a relatively limited number of species and for pure varieties, while smallholder farmers are more interested in heterogeneous varieties.

Yet, this practice has not been recognized as official interpretation of the related Treaty obligations by contracting parties. Therefore in 2010, the Ad Hoc Technical Advisory Committee on the SMTA and the MLS was requested to examine the issue, which was addressed at its second and third meetings (IT/AC-SMTA-MLS 2/10/Report at §§ 52-60 and Appendix 7; IT/AC- SMTA-MLS 3/10/Report, Appendix 3; IT/AC-SMTA-MLS 2/10/7 and IT/ AC-SMTA-MLS 3/12/3). The Committee contends that there is no problem with providing PGRFA for direct use by farmers when the material is not received under an SMTA (IT/AC-SMTA-MLS 2/10/7, at §§ 9-13). The main difficulty lies with PGRFA received under an SMTA,

since the terms of the SMTA require that the use of the material be restricted to research, breeding and training. If material acquired from the Multilateral System under the SMTA is to be made available for direct use for cultivation, this would require the express permission of the pro­vider that included the PGRFA in the Multilateral System.

(IT/AC-SMTA-MLS 3/10/Report at § 23)

The Committee specifies that making PGRFA available for direct use for cultivation should not be made under the SMTA.

The question was first explicitly limited to the transfer for direct use by the CGIAR centres, but was then expanded to transfers for direct cultivation by contracting parties too (IT/AC-SMTA-MLS 3/12/3 § 33; IT/AC-SMTA-MLS

Inspiring an effective Plant Treaty 201 3/10/Report at §§ 22-25). While it is encouraging that this issue was raised explicitly during an inter-sessional process, shedding more attention on farmers’ needs, a more progressive position could have been taken by contracting parties. Explicitly recognizing the legality of transferring Annex I material for direct use for cultivation would be a manner of recognizing and implementing part of the obligations covered under Article 9 on Farmers’ Rights. Doing so without using the SMTA would not increase administrative burden.

Over-IPRization and the disappearance of the farmers’ exemption

At the frontier of this issue of access to PGRFA by farmers, several problems remain, one of which relates to the intellectual protection of improved varieties (Girard and Noiville, 2014). Indeed, how to provide access to PGRFA when more and more improved varieties are protected by strong intellectual property rights with no or very limited farmers’ and breeders’ exemptions?³⁶ Correa has attempted to provide a solution by proposing the development of a sui generis system for plant variety protection (PVP) as an alternative to UPOV 1991 obli­gations. This sui generis system would be compatible with existing international obligations (WTO, TRIPS, but also CBD, Nagoya Protocol and the Treaty). It would counterbalance the ‘over-IPRization’ process occurring with the expan­sion of the boundaries of patents over plants. The general idea would be to cre­ate a system close to the UPOV 1978 convention (i.e. plant variety protection for new uniform plant varieties with clear breeders’ and farmers’ exemptions), complemented with a protection for new farmer and other heterogeneous vari­eties as well as a recognition for traditional farmers’ varieties, in order to prevent misappropriation of varieties developed by farmers and farmers’ communities. This is also a means to recognize farmers’ role in the breeding innovation pro­cess. The purpose of the present work is not to dig into these technical issues but rather analyse their impact on the conceptual constraint related to access; further information on this interesting proposal can be found in Correa’s publication (2015; also see Singh et al., 2011; Saez, 2016: 2).

At the conceptual level, would this sui generis PVP system mitigate whole or part of the access problem in the Treaty implementation? If the system enables farmers to be integrated in the breeder/research community at the same level (i.e. their PGRFA are protected, their rights are recognized and their role in the innovation process is recognized at the same level), then one can believe that such a system may significantly improve the Treaty implementation and contribute to reaching its objectives and overall goals. However, this means adapting the existing plant protection system by restricting the ever-wider patent scope, and perhaps, as Van der Kooij (2010) suggests, creating a breeders’ exemption in pat­ent law. Some European countries have recently attempted to supple their patent law in this regard. According to Prifti,

[a] recent exception to patent law is the so-called breeder’s exception or breeding exception. The breeding exception allows for the free use of

patented biological material limited to the breeding or discovery and devel­opment of new varieties. Four European countries, France, Germany, the Netherlands and, Switzerland have already adopted this type of exception into their patent laws.

(Prifti, 2015, 50)

Additionally, Article 27.c of the recent Agreement on a Unified Patent Court (AUPC) incorporates a provision on the breeding exception. So far, the AUPC has not yet entered into force (as of March 2018), thus, ‘it remains to be seen whether EU countries will implement such provision into their national patent law’ (Prifti, 2015: 50). Moreover, as Girard explains it, this solution might not be so straightforward.

Even if the exception is sometimes interpreted broadly and even if there are countries where an exemption for breeding purposes has been introduced into patent law, breeders are allowed to use patented biological material only for breeding purpose, not for commercializing the variety developed. If they wish to exploit their work, they must request authorization from the patent holder, who is thus in a position to require payment of significant royal­ties, or to refuse. That is the reason why there is an ongoing debate in the Netherlands, initiated by Plantum (the Dutch association of plant breeders), around the opportunity to set up a comprehensive breeder’s exemption (as opposed to the limited breeding exemptions that have just been mentioned), thereby vesting the breeders with the right to commercialize a plant variety regardless of whether it contains a patented technology.

(Girard, 2015: 51, references omitted)

Some countries (e.g. Thailand, Malaysia or India) have decided to develop sui generis legislation but, as Girard further notes, these legislations have raised many concerns.

[F] irst, these rights may have a disincentive effect on the flow and exchange of valuable genetic materials and a propensity to create tensions between communities; second, as the concept of property over germplasm is alien to some traditional cultures, their inception may adversely affect the cosmolo­gies of certain communities; and actually serve unwillingly the expansion of the religion of property. Finally, farmers’ varieties have more often than not incredibly complex pedigree and are part of populations of landraces, if not metapopulations, that requires the very difficult task of determining the contribution made by different landraces and communities (delineation of the boundaries of the innovation) before attributing rights over the variety.

(Girard, 2018: 134, references omitted)

For these reasons, Girard pleads for the implementation of local ABS rules through the development of biocultural community protocols under the Nagoya Protocol (ibid).

Finally, developing sui generis legislation would also mean not questioning the utility and reason of the existing protection rights and equate to remaining in the dominant appropriation scheme (i.e. moving away from the inappropri­ability of seeds). Perhaps the latter proposal would go too far and would not be realistic in the current context.

This point emphasizes why facilitating access to seeds is so crucial, but even more, why it is necessary to effectively allow for all stakeholders (not only breeders and researchers, whether from public or private institutions) to use the global seed commons: farmers should not only be ‘passive beneficiaries’ of financial and non-monetary benefits, but active ‘co-managers’ in the design and implementation process.

Recommendation 4: Recognize a direct facilitated access to PGRFA for farm­ers; promote sui generis PVP systems; adapt existing IP regulation to recreate an effective farmers’ exemption; and adapt existing certification and commercializa­tion of seeds regulations.

Benefit-sharing and the Benefit-sharing Fund

For this fifth Treaty topic, there are two conceptual constraints related to benefit-sharing. The foremost issue obviously relates to the lack of funding impeding the realization of benefit-sharing activities through the BSF The need to review the funding mechanism is already taken on board in the Treaty review process and constitutes a technical constraint. This falls outside the scope of these recommendations and is therefore only superficially covered. However, finding sufficient money to fund the system remains a crucial ele­ment as a matter of course. The conceptual constraint identified here is that the financial trigger is linked to accessing the material included in the MLS. The Treaty analysis in Chapter 4 showed that the SMTA money triggering clause is not effective because of the time scale in innovation processes and because the SMTA is not used by those breeders who have money and detain IPRs. Besides, there is almost no voluntary contribution to the BSF (with the exception of less than a handful of cases, by states or other stakeholders i.e. recently the European seed industry). Too little money is coming into the Benefit-sharing Fund. Finding funding that does not derive from the com­pulsory benefit-sharing obligation as foreseen in the SMTA might be a more viable option.

Along that line, the ongoing review process seeks to secure more stable and long-term funding means. When trying to implement the invariable prin­ciples of interdependence and anticommons dilemma in finding a solution to this conceptual constraint, one should keep in mind the need to protect the interdependence link between all PGRFA stakeholders and resources and to promote the widest possible use and involvement. One way would be to obtain money from other stakeholders such as the food industry³⁷ (i.e. through the implementation of Article 13.6 dealing with voluntary contributions to the MLS by the food processing industries) or consumers. Up to now, neither consumers associations nor the food industry have been much involved in the discussions between the various Treaty stakeholders (Frison et al., 2011). This is surprising if one considers that we are all consumers, whereas in developed countries, farmers represent only 3 per cent of the population, and that the food processing industry is economically strong and financially flourishing. Therefore, it is vital to raise awareness among consumers, to identify and encourage the food industry to contribute to the MLS and to design mecha­nisms for this purpose, as their future food supply depends on the continued availability of PGRFA. Strong incentives for the food industry to contribute to the Benefit-sharing Fund are required. An example could be to create a ‘green tag’ for products coming from these industries contributing to the Fund. With this label consumers would be able to decide to buy products that contribute to the conservation and sustainable use of PGRFA. But for this to happen, consumers should be conscious that their choices regarding food products provide them with considerable leverage to influence the food industry’s economic and policy choices. Contracting Parties should therefore target consumers as well as farmers’ organizations in their public awareness programmes (Frison et al., 2011: 273-274). However, to take this path, there needs to be strong and determined political will. Apart from some rare coun­tries which have adopted alternative modes of voluntary payment (notably Norway), it seems that the momentum has not come yet for such political commitment (Petit et al., 2001).

The second conceptual constraint related to benefit-sharing deals with the position of farmers in the access/benefit-sharing relationship, that is to say their role and position within the Treaty community. Benefit-sharing provi­sions, including the BSF round of calls for funding benefit-sharing projects, put farmers in the position of beneficiaries, i.e. passive receivers. Notwithstanding the fact that the reduced funding of the BSF does not allow farmers to benefit from the Treaty, that the BSF procedure only allows to fund a limited number of selected projects following selective criteria (vs. benefiting all farmers), and that direct access to seeds is not formally recognized for farmers, this passive position contrasts with their ancestral role of main actors in the seed and food chain. It also departs from the community invariable principle which advocates for an active participation of all stakeholders in the commons. The Treaty MLS was designed for researchers, breeders and trainers, as bridging elements between the commercial stakeholders (seed industry) and the main users of seeds (farmers). Analysis of the Treaty implementation shows that the MLS is not a global seed commons (i.e. for all) but a researcher/breeder seed commons, where farmers are relegated to a passive position in the exchange of seeds. However, if one wants the Treaty to reach its objectives, farmers and other relevant stakeholders, will have to be included in the game as active participants to the management of the system. The redesign of the MLS should focus on farmers as primary stakeholders of the system.

Recommendation 5: The benefits of the Treaty should reach all beneficiaries and farmers should be repositioned as active stakeholders in the Treaty, MLS and BSF management.

Information and knowledge

For smallholder farmers, seeds (the material) and traditional knowledge (the related information) are indissociably linked. This type of information is crucial for the conservation and sustainable use of PGRFA as a seed without its associ­ated information and traditional knowledge is of no use. This is recognized in Treaty Article 9.2 which stipulates that ‘each Contracting Party should [...] take measures to protect and promote Farmers’ Rights, including: a) protection of traditional knowledge relevant to plant genetic resources for food and agricul- ture’.³⁸ Therefore, information and (traditional) knowledge should be protected from misappropriation;³⁹ their access should be promoted and made available to all seed stakeholders, along with the material (and the adequate technology to handle it). Traditional knowledge is considered as ‘information’ relating to PGRFA. The Treaty provides for an instrument to address information: the Global Information System (GLIS), which aims at enhancing the documenta­tion on PGRFA (that including that of crop wild relatives, on-farm and in situ material), as well as promoting its exchange (Plant Treaty Article 17).

The conceptual constraint related to this topic lies in the inadequate (or at least incomplete) tools developed by contracting parties⁴⁰ to facilitate access to information that is most relevant to farmers, in particular traditional knowledge. Ideally, the GLIS could be used as a clearinghouse mechanism sharing traditional knowledge while protecting it from misappropriation. However, to date, there is no efficient mechanism protecting traditional knowledge from misappropria­tion, which then hinders access. The tools that are proposed to contribute to the GLIS (inter alia the DivSeek Initiative⁴¹ or the Global Open Genome Sequence Data Framework)⁴² respond to experts’ requirements, far from a majority of farmers’ knowledge, needs and practices at local levels. It is understood that the end-beneficiary of this type of initiative is to be the farmer, but it does not recog­nize the fact that the majority of the seeds used by smallholder farmers does not originate from commercial breeders but from informal seed exchange systems between farmers. This confirms the fact that the Treaty system is designed for breeders and researchers and fails to integrate farmers’ role and needs in that system, thereby failing to develop means to reach the Treaty overall goals of food security and sustainable agriculture. This reflects again the imbalance in the Treaty between breeders and farmers. Addressing issues related to traditional knowledge through the GLIS could be a way to provide the most relevant infor­mation and knowledge to farmers and to limit the cases of misappropriation, which have inflamed polemics about biopiracy (Isaac and Kerr, 2004; Ho, 2006; Shiva, 1997). The Digital Object Identifier (DOI) tool, which is currently being set up by the Treaty Secretariat,⁴³ could contribute to develop the necessary sharing and protection tools if it were expanded to traditional knowledge. For now, the DOI project focuses on the accessions deposited by parties in the MLS.

Therefore, measures should be enforced to re-establish a true public research, which aims are to serve the public interest (i.e. reach food security and sus­tainable agriculture) and the needs of smallholder farmers and which funding does not depend on private interests. This would mean inter alia refocus public research on traditional varieties (with intra-variety genetic heterogeneity) (Bon- neuil et al., 2006). The GLIS should include information systems that allow shar­ing of traditional knowledge while protecting it from misappropriation. One way to limit misappropriation could be to transfer the burden of proof on the patent or the PVP owner. When applying for a patent or a PVP, the applicant should demonstrate that the innovation does not originate from a misappropri­ated material/knowledge.

Recommendation 6: Develop the GLIS keeping in mind the overall goals of the Treaty, by rendering available, visible and accessible information relevant for all stakeholders, in particular farmers; seek means to turn the MLS/global seed commons into a space where traditional knowledge would be protected from misappropriation.

Third Party Beneficiary

The seventh Treaty topic deals with the legal mechanisms to enforce Treaty rights. These rules and procedures intervene at two levels: 1) at the level of the MLS and its SMTA, where PGRFA users may act; and 2) at the level of the Treaty, where contracting parties are the major stakeholders at play. The focus will be placed on the most innovative part of the system: the Third Party Beneficiary (3PB). The analysis in Chapter 4 showed that the 3PB concept bridges the gap between the private contractual law relationship between parties to the SMTA and the public international law setting where contracting parties to the Treaty are anchored. It creates a triangular relationship between contracting parties, stakeholders and the MLS, in which every participant (whether directly involved in the SMTA contractual relationship or not) may trigger the 3PB when sus­pecting a breach of rights in an SMTA. Indeed, the 3PB is the virtual entity (materialized by FAO) representing the MLS, designed to assert its rights and to allow for enforcement of SMTAs.⁴⁴ It functions as a warrant for the respect of the MLS’ collective rights and obligations, which can be triggered by ‘any natural or legal person’; even those not party to the contractual agreement (SMTA) at the origin of the breach of right (Procedures for the Operation of the Third Party Beneficiary, Article 4.2; see also Resolution 11/2013, § 4).

The conceptual constraint related to the 3PB lies in the lack of transparency and advertising of the system at two levels: prior to a case and once a case is trig­gered. Indeed, to be fully effective, advertising and informing members of the Treaty community on the existence of the 3PB and its procedure in the widest and most transparent manner is crucial. The 3PB webpage briefly explains the procedures under its scope. However, the Plant Treaty website does not explicitly mention the first 3PB case that occurred in 2012-2013, nor does it publish a specific report on the case on the 3PB webpage. The information published is limited and can only be found in the documents of the Governing Body session (if one is aware that a case has occurred), not on the 3PB webpage. Besides, no action is taken by the Governing Body or the 3PB to advertise and inform the

Inspiring an effective Plant Treaty 207 public on its role and procedures. There could be an ‘Easy-3PB’ online tool, sim­ilar to the ‘Easy-SMTA’ online tool, to facilitate triggering the 3PB procedure.

Furthermore, once the 3PB is triggered, information on the resolution of the case should be more transparent. Article 9 of the 3PB Procedures provides that the 3PB shall submit a report to the Governing Body at every Regular Sessions. Such report⁴⁵ should contain information on a number of items regarding its operations⁴⁶ in the biennium (that is to say for the part of year 2011 that was not covered by the previous report to the Governing Body, and for the biennium 2012-2013). At the last session of the Governing Body, a ‘Report on the Opera­tions of the Third Party Beneficiary’ was submitted to the Governing Body, but its summary of the first case was very limited (IT/GB-6/15/10), and access to direct information on the case is not possible. In the 2013-2014 case, the situ­ation seems to have been swiftly solved, inter alia because the CGIAR centres involved were embarrassed with the publicity that the ETC group had made on these cases. Reputation is a strong motive for complying with the rules. This is why transparency is so important.

Finally, contracting parties have refused to expand the scope of action of the 3PB to compliance issues (and have consequently developed a parallel compli­ance mechanism), limiting the 3PB scope of action to the breaches in SMTAs. While this is understandable from a political point of view during the Treaty negotiation, one could question this decision. Indeed, expanding the 3PB’s action to situation of non-compliance outside the SMTA contractual relation­ship could enhance implementation of major Treaty obligations. Reputation is a good incentive for respecting the rules of the game. Enlarging the role of the 3PB would trigger this reputational spectrum. However, the Governing Body might not be ready yet for opening such a debate...

Recommendation 7: Advertise on the 3PB’s role and procedures to the Treaty community and the public and deal with 3PB cases in a more transparent way; eventually, expand the 3PB’s competency to situations of non-compliance with Treaty provisions outside the SMTA contractual relationship.

Participation and governance

In the Treaty analysis, information on the rules and procedures for the gover­nance of the Treaty showed that there is little space for other actors than states and international organizations to govern the PGRFA issues at stake. This is consistent with international law. However, the arguments made in this chapter emphasize why it is indispensable to effectively allow all stakeholders to par­ticipate in the governance of the global seed commons. In particular, farmers should not only be passive beneficiaries of financial and non-monetary benefits, but active co-managers in the design and implementation process. The concep­tual constraint related to this Treaty topic deals with involving all stakeholders in the governance of the Treaty, in particular de facto holders of seeds (i.e. farmers) along with breeders, researchers or the seed industry.⁴⁷ Taking such a multi-stakeholder approach to governing the Treaty (Nasiritousi et al., 2015;

Backstrand, 2006), inspired from the functioning of the FAO Committee on World Food Security, could contribute to designing an effective global seed commons through the current MLS review process. The Committee on World Food Security (CFS) defines itself as

the foremost inclusive international and intergovernmental platform for all stakeholders to work together to ensure food security and nutrition for all. The Committee reports to the UN General Assembly through the Eco­nomic and Social Council (ECOSOC) and to FAO Conference.⁴⁸

Chapter 6 has shown that many different stakeholders, with diverse (and sometimes opposing) interests are involved with the Treaty. However, the num­ber and heterogeneity of these actors makes it difficult for the Treaty to be effectively implemented (Libecap, 1994). The lack of stakeholders’ participation is problematic at different levels: the needs and specificities of all stakeholders are not reflected in the system as designed; it poses the question of lack of trust between stakeholders (Six et al., 2015; Henry and Dietz, 2011) and of legitimacy in governing the resource (i.e. are public institutions, breeders and researchers more legitimate to manage PGRFA than farmers, who have acted as stewards during millennia?). What role is left for informal dialogues⁴⁹ and informal net­works within the formal system?⁵⁰

NGOs and farmers’ organizations have demonstrated that they are able to pro­vide concrete, useful, important information on the conservation and sustainable use of seeds. As primary actors, smallholder farmers in particular (in number, they are the majority group of seed users and as food producer, a majority of the world population), should be able to participate in the international man­agement of seeds. They should collaborate in the identification of what mate- rial/technology should be researched or developed.⁵¹ Recognizing their needs and practices, their modes of functioning, their networks, would be a way to implement Ostrom’s eighth design principle on nested enterprises and respect the embeddedness of seed systems. It would allow to respect the heterogeneous, complex and diverse characteristics of the plural seed systems within the global seed commons. It would also fit quite well with recent studies demonstrating the need to shift from a uniform, industrial agricultural mode of production to diversified agroecological systems (IPES-Food, 2016).

Smallholder farmers or farmers more generally as well as breeders and researchers should be formally invited to take part of the global seed commons. As main game player of the agricultural input market, the Big Five should also be part of the debate. The several multi-stakeholders dialogues which occurred during the negotiation of the Treaty, and recently during its implementation, showed that having all stakeholders sitting at the same table at the same time could favour a constructive dialogue between historically opposed groups, and eventually unblock difficult negotiations.

Finally, should other stakeholders at different levels of the food chain be involved: consumers and the food processing industry? Consumers certainly

Inspiring an effective Plant Treaty 209 have a say in what they want to eat (healthy, diverse, local food?) and hence they could influence the type of research activities funded by public research organi­zations. Citizen initiatives are also active in promoting the recognition of a right to exchange and grow traditional seeds (which can be contrary to EU seed leg­islation, see Winge, 2012, 2015). As for the food processing industry, the Treaty highlights their role and responsibility in the food chain (Article 13.6) and identifies them as potential financial contributors to the MLS. To what degree should these stakeholders be involved in the Treaty governance? Schlager and Ostrom (1992: 251) distinguish ‘between rights at an operational-level (access and withdrawal to a CPR) and rights at a collective-choice level’ (management, exclusion and alienation) that is to say ‘the difference between exercising a right and participating in the definition of future rights to be exercised’ (see above in the paragraph on ‘Ostrom’s institutional analysis’). These issues should be further discussed in order to reinvent how to govern the Treaty and its instruments.

However, rather than conceptual constraints, these are technical challenges regarding the governing mechanism of the Treaty (i.e. adapt rules and proce­dures of the Governing Body to create a decision-making space for all Treaty stakeholders). Concretely modifying the general governance mechanism of the Treaty so as to better reflect the reality of the PGRFA field (in terms of hetero­geneity of actors and their needs, of networks and of institutions) falls outside the direct scope of this thesis. Notwithstanding the fact that this would neces­sitate quite some courage and creativity for changing universally recognized international law of treaty rules, I believe that there is hope in this regard. Indeed, the Treaty forum has undoubtedly demonstrated its capacity to be creative and innovative in designing new concepts and instruments under international law. Moreover, there are examples of such evolution in international governing sys­tems from which the Governing Body could draw inspiration for its renovation, notably the reform of the Committee on World Food Security (De Schutter, 2013).⁵² It could even go further by establishing voting rights to each stake­holder groups, not only to contracting parties. Adapting the Treaty governance mechanisms towards an inclusive multi-stakeholder approach might contribute to resolve constraints identified in the Treaty analysis, inter alia by ensuring a better political power balance. In order to build a system which all stakeholders will abide by and will implement, a rebalancing of powers needs to take place in the Governing Body, through the recommended inclusive multi-stakeholder approach. The recognition of FRs and the farmers’ participation in the decision­making process are preconditions for this to take place.

Recommendation 8: Allow all stakeholders to effectively participate in the global seed commons governance, taking into account the various levels of governance.