Scope of the book

The present research has a legal, a material and a temporal scope.

The legal scope

Regarding the legal scope, the research focuses on the analysis of the Treaty. Related international instruments such as the Convention on Biological Diversity (CBD) and its Nagoya Protocol, the Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement), and the International Union for the Protection of New Varieties of Plant (UPOV) will be touched upon, but only to describe the context and serve the arguments made on the Treaty.

The Convention on Biological Diversity and the Nagoya Protocol

Due to its ‘fall-back-regulatory-instrument’ position, the CBD and its Nagoya Protocol (Morgera et al., 2014) will partly be addressed in Chapter 2, but only to explain the access and benefit-sharing concept and mechanism (for an assessment of the linkages between the Treaty and the CBD see Garforth and Frison, 2007).

TRIPS, UPOV and intellectual property rights issues

The TRIPS agreement and UPOV will be mentioned when talking about intellectual property rights (IPRs) issues related to plants (Cullet, 1999, 2001; Cullet and Kolluru, 2003; Cullet and Raja, 2004). Although intellectual property is an important aspect of seed governance, it is clearly stated that this research is not an IPR piece of work (see Batur, 2014; Dutfield, 2004). Future negotiation outcomes in the World Intellectual Property Organiza­tion (WIPO) fora²⁸ could be relevant to this research when dealing with the IP questions for genetic resources and traditional knowledge (Van Overwalle, 2005, 2009), but as no legally binding instruments have been adopted yet and as the negotiations are on hold, these negotiations will not be addressed.²⁹ Consistently with this choice, the theoretical framework of this work is not the theory of property, which Brahy has addressed in studying the manage­ment system for genetic resources and traditional knowledge using law and economics as a background (Brahy, 2008).

Besides, the author is currently conducting a research on the dematerializa­tion of genetic resources, i.e. genetic sequenced information and their link with the Treaty. As this topic is very recent and complex, it will not be addressed in the present publication. Outcomes of the research project will be published in separate articles by the author.

Biosafety and GMOs

Biosafety international regulations³² could also be relevant as the PGRFA covered by the Treaty are potentially genetically modified organisms (GMOs). However, the Cartagena Protocol on Biosafety regulates the safe transfers and the commercialization aspects of GMO products (Cordonier Segger et al., 2013; Frison and Joie, 2006a, 2006b) and does not touch upon the common management for the conservation, sustainable use and access and benefit-sharing of PGRFA. Therefore, this instrument is considered outside the limits of this book.

International law versus national legislations on biodiversity or seed management

This work remains exclusively at the international level and will not dig into the implementation of the Treaty at national levels; it only refers to it in a few cases as examples. Seed legislations are largely national and will therefore not be dealt with (even though they have a strong impact on seed exchange; see Anvar, 2008; Louwaars, 2008; Girard and Noiville, 2014), except when mentioned as illustrations. Indeed, attention is centred on the international level as the aim is to understand governing mechanisms set by stakeholders in the Treaty at the global level, using global theories.

Human rights

Due to time, resources and scope restrictions, the human rights’ perspective on access to seeds and the right to food have not been deeply explored (Van Over­walle, 2010). According to the UN Human Rights office of the high commis­sioner, the right to food can be defined as

the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear.³³

The former United Nations Commission on Human Rights (now United Nations Human Rights Council) has established a specific mandate on the right to food³⁴ since the year 2000 by appointing a special rapporteur on the right to food³⁵ to promote the full realization of the right to food inter alia through the adoption of measures at the national, regional and international levels (Frison and Claeys, 2014). The special rapporteur on the right to food pleads to improve the global governance of food security. He stresses that ‘[i]n times of crisis, more than ever, only by strengthening multilateralism can we hope to effectively real­ize the right to food’.³⁶ Although the right to food has been enjoying a growing recognition for the last decade (Sage, 2014; Cullet, 2005; Lambek et al., 2014; De Schutter, 2009c), it suffers serious implementation and enforcement prob­lems (Niada, 2006; Claeys, 2015). In 2015, several studies were published on the between human rights, seeds laws and Farmers’ Rights (Christinck and Walloe Tvedt, 2015; La Via Campesina and GRAIN, 2015; Braunschweig et al., 2014; Helfer, 2015), paving the way for further research on the intersection between access to seeds and the right to food.

International law and international relations

Finally, state cooperation within international negotiating fora holds a key place and impact in this research.

The plant genetic resources for food and agriculture material scope

As for the material scope, it is limited to plant genetic resources for food and agriculture covered by the Treaty (Article 3). The Treaty defines PGRFA as ‘any genetic material of plant origin of actual or potential value for food and agri­culture’ (Treaty Article 2). The Treaty defines ‘genetic material’ as ‘any material of plant origin, including reproductive and vegetative propagating material, con­taining functional units of heredity’. However, the MLS creates a more restrictive sub-category of seeds, listed in Annex I to the Treaty. Article 11.2 stipulates that the MLS covers only the ‘PGRFA listed in Annex I that are under the manage­ment and control of the Contracting Parties and in the public domain’. This distinction might fade away in the future as discussions are ongoing in the gov­erning body forum of the Treaty on expanding the MLS to all PGRFA, thereby erasing the Annex I distinction.

Article 12.3(a) further specifies that ‘access shall be provided solely for the purpose of utilization and conservation for research, breeding and training for food and agriculture, provided that such purpose does not include chemical, pharma­ceutical and/or other non-food/feed industrial uses’ (emphasis added). This means that PGRFA that are used for another purpose, such as the production of biofuels, cosmetics or pharmaceuticals, are not considered as PGRFA under the MLS. This distinction is important as the exchange mechanism and appli­cable law will differ when the subject matter is PGRFA or other plant genetic resources (i.e. plant genetic resources used for biofuels, cosmetics, pharmaceuti­cals, etc.). Indeed, for the latter, it is most likely that the CBD and its access and benefit-sharing (ABS) obligations under the Nagoya Protocol are applicable.

The temporal scope

Last, regarding the temporal scope, the historical analysis of seed management (Chapter 2) is limited to a period covering the second half of the twentieth century (1960-2000), and the legal analysis of the implementation of the Treaty (Chapter 4) is concentrated on the last decade (2004-2017). This temporal scope covers the important historical facts that have influenced the design of the Treaty, i.e. the development of IPRs and plant breeders’ rights; the rise of Farmers’ Rights and the recognition of States’ sovereign rights over their genetic resources; and the emergence of a common governing tool to manage PGRFA.