Sustainable agriculture and food security as Treaty overall goals

Sustainable agriculture and food security are the two overall goals of the Treaty (Article 1.1). These goals underpin and justify the Treaty’s direct objectives of conservation, sustainable use and access and benefit-sharing.

Sustainable agriculture

Sustainable agriculture can be found mainly in Treaty Articles 1 (Objectives), 5 (Conservation), 6 (Sustainable Use) and 11 (Coverage of the Multilateral Sys­tem), as well as in several paragraphs of the preamble. Their analysis shows that the overall goal of sustainable agriculture derives from specific characteristics of PGRFA and that it entails a number of specific obligations in the Treaty. Six specific characteristics serve as guiding compass when interpreting and implementing the Treaty provisions as they may enlighten on the intentions of the parties when they negotiated the text.

Six characteristics pertaining to PGRFA

The first characteristic is the risk of agrobiodiversity erosion related to the under user of PGRFA diversity. Contrary to other natural resources like water or wood, PGRFA do not suffer from overuse/exploitation, but rather from their under­use.⁸ This reflects the opposite situation of the ‘tragedy of the commons’ (Aoki, 1998; Buchanan and Yoon, 2000 : 2), that is to say a situation of ‘anticommons’ (Heller, 1998; Heller and Eisenberg, 1998). Articles 5 and 6 of the Treaty clearly reflect that there may be no (sufficient) conservation if there is no constant use of PGRFA diversity.

The second characteristic recognizes the special role of farmers in the conservation and sustainable use process, which implicitly strengthens the recognition of farmers’ rights (Resolution 4/2015). Contracting parties’ willingness to embed the conservation and sustainable use obligations in a broader social reality (Resolution 7/2013: §§ 1 and 3) implies a central role for farmers within a global interdependent network for a food secure world (Maxted et al., 2011).

The third characteristic relates to the special nature of seeds. The Treaty pre­amble § 1 recognizes the ‘special nature of PGRFA, their distinctive features and problems needing distinctive solutions’ (as recognized by Resolution 3 of the Nairobi Final Act;⁹ also see the Conference of the Parties of the CBD in 1995 Decision II/15; UNEP/CBD/COP/2/19: 26; Hardon et al., 1994; Visser et al., 2003). The uniqueness of PGRFA is based on several criteria: they are crucial to satisfying basic human needs; they are man-made biological diversity being developed since the origins of agriculture; PGRFA are distributed throughout the world with greatest concentration in various ‘centres of origin and diversity’ of cultivated plants; countries’ interdependence regarding PGRFA, i.e.

The Treaty on Plant Genetic Resources 75 justifies the mere existence of a new Treaty specifically dedicated to the question of PGRFA (FAO Conference C 1999 § 60).

The fourth characteristic links conservation to crop genetic improvement. Indeed, PGRFA are the ‘raw material indispensable for crop genetic improve­ment’ (Preamble, § 6), essential to adapt to unpredictable environmental and future human needs, whether by farmers’ selection, standard plant breeding or modern biotechnology means. This justifies the broad, international efforts by contracting parties to conserve seeds. Breeding activities are positioned as a central means to realize food security and poverty alleviation.

The fifth characteristic highlights the intergenerational responsibility (Pre­amble §§ 4 and 13) of the present generation to past and future generations to conserve the world’s diversity of PGRFA. This shows the temporal interdepen­dence of generations for future sustainable livelihoods.

The last characteristic points to the necessity of a multi-sectoral approach to PGRFA management, involving agriculture, the environment and trade (Pre­amble § 12), i.e. a sustainable development law issue, requiring synergy among these sectors. As a reaction to the ‘exclusion’ of agriculture ministries by the environmental sector during the CBD negotiations, there is a growing recogni­tion of the need for collaboration between the relevant international institutions (e.g. with the CBD representing the environmental sector, or the WTO repre­senting the trade sector;¹⁰ see Preamble § 9). An example of such a multi-sector approach is the Memorandum of Cooperation concluded between the Secre­tariats of the Plant Treaty and the CBD in October 2010 on a Joint Capacity Building Programme for the harmonious implementation of the Treaty and the CBD as well as the Nagoya Protocol (IT/GB-5/13/14: Appendix 1).

From overall objectives to concrete Treaty obligations

for a sustainable agriculture

The above six characteristics of PGRFA justify the promotion of a sustainable agriculture policy, which is translated into specific obligations: Article 1 on the Objectives of the Treaty and Articles 5 and 6 specifying Contracting Parties’ obligations relating to Conservation and Sustainable Use of PGRFA.

Article 1 of the Treaty is an essential provision as it sets the overall goals of the Treaty, i.e. sustainable agriculture and food security. These overall goals represent the ultimate reasons, the ‘all-embracing’ motives for contracting parties to act collectively in facing the global challenges of agricultural biodiversity erosion and repetitive food crises, which no country can face alone. These overall goals are critical in guiding contracting parties in their implementation of the Treaty. They imply that the objectives of conservation, sustainable use, and ABS are not meant for other purposes than promoting a sustainable agriculture (and reach­ing food security).

Articles 5 and 6 on conservation and sustainable use of PGRFA were non- contentious during the negotiations of the Treaty and offer a modern framework for states to act for the benefit of conservation and sustainable use of PGRFA

(Cooper, 2002). This framework is based on earlier provisions of the IU (Articles 3 and 4) combined with text and suggestions derived from the CBD (Decision III/11) and from the Global Plan of Action for Plant Genetic Resources for Food and Agriculture (GPA - a voluntary non-legally binding instrument).¹¹ Article 5 deals with the ‘Conservation, Exploration, Collection, Characterization, Evalu­ation and Documentation of PGRFA’. Article 6 is entitled ‘Sustainable Use of Plant Genetic Resources’. They both support an integrated approach to conser­vation and sustainable use, suggesting actions the joint implementation of which increase their mutual effectiveness. The details of the technical, scientific and political actions promoted, such as: promoting collection of PGRFA, promot­ing on-farm conservation and management by farmers and local communities, strengthening research for the benefit of farmers, broadening the genetic base of crops and increasing the range of genetic diversity available to farmers, etc., will not be dealt with here.

5 when stating that each contracting party shall, ‘subject to national legislation’ promote the above mentioned integrated approach. This reference marks the overall influence of the CBD in the ‘privatization’ of biodiversity management through the (state) control over genetic resources.

Both articles are quite specific in their content (as opposed to similar articles in the CBD), which might facilitate a benchmarking when monitoring the effec­tive implementation of these articles. Articles 5.2 and 6 jointly promote rather an environmentally friendly and diverse agricultural policy, which mitigates the threats to PGRFA identified through the actions proposed under Article 5.1. The lists of actions to be taken under both Articles are not exhaustive (as the terms ‘in particular’, and ‘such measures as’ suggest). These actions are driven from the GPA (Treaty Article 14). What is worth noting is that Articles 5 and

6 are interrelated and cover concrete actions to promote the overall goal of ‘sustainable agriculture’.

Evaluation of the implementation of the conservation

and sustainable use provisions

Once the special characteristic of PGRFA have been translated into concrete obligations for contracting parties, it is worth looking at the implementation of the sustainable agriculture overall goal in the Treaty. Four elements are analysed highlighting the discrepancy between the importance of the sustainable use of PGRFA item on the agenda of every Governing Body meeting and the reality of its implementation at the national levels.

First, it should be noted that sustainable use of PGRFA systematically consti­tutes a core agenda item of every Governing Body meeting (IT/GB-6/15/12: § 1) and several Resolutions have been adopted by the Governing Body (Reso­lution 7/2011; 7/2013; 4/2015; 6/2017). This is not the case for Article 5 on Conservation because ex situ conservation has been dealt with by states for sev­eral decades already through other instruments at the national (national policies

The Treaty on Plant Genetic Resources 77 and genebanks for PGRFA conservation)¹² and international levels (such as the establishment of the CGIAR and their genebanks, the GPA,¹³ the State of the World’s PGRFA,¹⁴ and more recently with the Global Crop Diversity Trust¹⁵ (GCDT)).

Second, notwithstanding the importance of this topic in the GB agenda, national implementation lags behind (IT/GB-3/09/Inf.5: § 44). The Fourth Session of the GB, recognized that most countries do implement explicit policy and legal measures for different aspects of the concept of sustainable use through a variety of policies, but that an integrated and coordinated approach towards the promotion of sustainable use of PGRFA is lacking. For this reason, contracting parties established the Ad Hoc Technical Committee on Sustainable Use¹⁷ to assist them in this task (by developing a toolbox, convening a stakeholders’ con- sultation,¹⁸ elaborating a Work Programme on Sustainable Use (WP-SU), etc.). At GB5, Resolution 7/2013 requests contracting parties: (1) to promote access of all farmers to PGRFA in the Multilateral System; (2) to implement measures and activities of the WP-SU and (3) to report on the implementation activities of the WP-SU to the Governing Body using the indicators of the second GPA. Besides, this resolution also requests the Treaty Secretariat to take various actions to promote the implementation of Articles 5 and 6.¹⁹

Third, it is hard to assess the degree of implementation of Articles 5 and 6 as few national reports²⁰ and submissions by other stakeholders²¹ (i.e. civil soci­ety organizations and international research centres) have been submitted to the Treaty Secretariat. However, it is clear that having established the Ad Hoc Technical Committee on Sustainable Use and having systematically set on the Governing Body agenda the issue of the implementation of Article 6 shows that there is an urgent need to promote the implementation of these obligations. Besides, the implementation of Articles 5 and 6 remains critical for the imple­mentation of all other Treaty obligations. In particular, it is very closely related to the implementation of Farmers’ Rights at the national level (Resolution 7/2013: Goal 1 and 4). The work undertaken by the Ad Hoc Technical Committee on Sustainable Use further strengthens this very close link between Articles 5 and 6 and Article 9 of the Treaty.

Fourth, a final comment relates to the relation between conservation and sustainable use of PGRFA and national seed legislations. When coupled to IP legislation, many variety registration and seed certification legislations that only

recognize commercial varieties create obstacles to farmers’ rights in the exchange and selling of farm-saved seed, and in the marketing of landraces and of many farmers’ varieties (Winge, 2015; Wattnem, 2016: 850-867). This constitutes a serious hurdle to on-farm conservation and sustainable use of crop genetic diversity. Andersen (2015: 5) notes that ‘[i]t is a paradox that rules originally intended to protect plant health in fact contribute to removing the basis for ensuring plant health in [the] future, namely the diversity of genetic resources’. Such seed laws together with strict plant breeders’ rights restrict traditional farm­ing practices and traditional seed conservation, thereby contributing significantly to the further erosion of the primary material for all plant breeding and farming activities. Andersen (ibid) questions the possibilities that exist to make such laws more compatible with these customary rights of farmers - which are so crucial to the maintenance of agrobiodiversity for food security, today and in the future (ibid; also see Winge, 2015; Prip and Fauchald, 2016; Girard and Frison, 2018b).

Food security

Evolution of the concept

Although in 1996 the Rome Declaration on World Food Security emphasized that ‘the primary responsibility rests with individual governments’, food security, touching upon so many different aspects of nations’ government (agriculture policy, social and economic policies, war, climate change, etc.), cannot be dealt with by individual states but necessarily calls for global action (Sen, 1981). The concept of food security (Hadiprayitno, 2014: Cadieux and Blumberg, 2014) has been on the political agenda of FAO for more than 50 years (Shaw, 2007; McDonald and Matthew, 2009: 5-7). However, the concept has significantly evolved, from a simplistic view of producing more food in order to supply more foodstuffs to people, to the more complex approach encompassing the nutri­tional value of the food supplied, as well as the political, social and economic aspects of locally producing foodstuff in accordance with cultural preferences and traditions (Sen, 2003; Shaw, 2007: 383-386; IPES-Food, 2016). Food security can be envisaged through different lenses as a technical concept (food security), a legal right (right to food) or a political objective (food sovereignty) (Windfuhr and Jonsen, 2005). The FAO World Food Summit Plan of Action (point 1) provides a simplified definition stating that:

Food security exists when all people, at all times, have physical, social and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life.

(FAO World Food Summit Plan, 1996)

This rather technical approach to food security has pushed civil society move­ments and farmers’ communities to design a wider political concept encom­passing inter alia the defence of farming practices or cultural aspects: food sovereignty (Edelman, 1999). Reaching international spheres through proactive

The Treaty on Plant Genetic Resources 79 civil society movements (Claeys, 2014b, 2015), food sovereignty was asserted as a right at the NGO Forum to the World Food Summit held in Rome in 1996 (Claeys and Lambek, 2014: 34-35). To further fight against the ‘neo-liberal agriculture policies [which] have led to the destruction of our family farm economies and to profound crisis in our society’ (ibid: 35), 500 delegates from more than 80 countries adopted the ‘Declaration of Nyeleni’ in 2007 providing and extensive definition of food sovereignty.

Following this trend, the International Assessment of Agricultural Science and Technology for Development (IAASTD), an intergovernmental process under the sponsorship of the United Nations and the World Bank, defined food sovereignty as being ‘the right of peoples and sovereign states to democratically determine their own agricultural and food policies’ (IAASTD, 2008: 15). Although quite vague, this definition recognizes at the global level a much wider concept based on the importance of local control and self-sufficiency (Hadiprayitno, 2014).

Besides the evolution of the concept of food security to food sovereignty, it has also gained recognition as a Human Right, through the development of the Right to Food (Universal Declaration of Human Rights: Article 25; International Covenant on Economic, Social and Cultural Rights: Article 11; International Covenant on Civil and Political Rights: Article 6; Convention on the Rights of the Child: Articles 24 and 27), in particular in Article 11 of the International Covenant on Economic, Social and Cultural Rights (Morten Haugen, 2014). Notwithstanding the development of the right to food within the UN fora (Human Rights Council Resolution 13/4, 24 March 2010) and the recognition of its role in reaching food security (De Schutter, 2010a), its implementation and realization has been slow (Claeys, 2015). To progress on this question, in 2012 civil society pushed for the negotiation of a UN Dec­laration on the Rights of peasants and other people working in rural areas, which is still currently being discussed (Human Rights Council Resolutions 21/19, 26/26, and 30/13).

Many other commitments to reduce hunger and poverty have been taken by states, such as the Declaration on World Food Security in 1996, the Millen­nium Development Goal (MDG) in 2000 (Leiserowitz et al., 2006), the 2008 Cordoba Declaration on the Right to Food and the Governance of the Global Food and Agriculture System or the 2015 Sustainable Development Goals (SDGs) and their second goal ‘Zero Hunger’. These instruments highlight the growing interdependence between nations and regions for food security, and the need for international cooperation and solidarity between areas experienc­ing different levels of development to achieving food security for all. Interna­tional aid in times of crisis is put forward as an emergency solution to critical food insecurity, but the past and current crises show that this response is not sufficient and that it does not solve the problem. Despite the fact that Food Security seems to be high on the international agenda, voices argue that access to affordable and sufficient food is not recognized as a universally guaranteed human right, at the same level as access to water, health and education (Vivero Pol and Schuftan, 2016), thereby rendering it difficult to reach the goal of food security set in the SDGs.

Literature has stressed the importance of taking into account food security in the design of scientific research but also of national, regional and interna­tional policies (De Schutter, 2009b), thereby recognizing the tight link between PGRFA and the criteria of interdependence and food security (Thrupp, 2000). Fowler and Hodgkin (2004: 144) consider for example that ‘genetic resources underpin plant breeding and agricultural production and are thus essential to food security, livelihoods and the development aspirations of every country on Earth’. This is reflected during the negotiations of the Treaty, where negotiators listed food security as one of the objectives to be attained by facilitating access to PGRFA through the creation of a multilateral agreement (CGRFA-Ex3/96/ Rep: 50). They considered that access to and the sharing under fair and most favourable terms of both genetic resources and technologies are essential for meeting world food security and the needs of the growing world population, and must be facilitated. By adopting this language, stakeholders have voluntarily linked food security to the idea of a multilateral mechanism facilitating access to — and sharing benefits of — PGRFA. Indeed, in the preamble and in Article 1, food security is matched with sustainable agriculture, as being the two overall goals of the Treaty. In Article 11.1, contracting parties use food security as one of the two criteria, with interdependence, for determining what PGRFA should be part of the Treaty Annex I list of crops and forages.

Implementing the concept of food security in the Treaty: interdependence as a key

Interdependency of states and food security are the two intertwined criteria (Article 11.1) for determining what PGRFA should be covered by the MLS as part of Annex I to the Treaty.

PGRFA interdependence between countries results from long run human collaboration in the exchange of food and feed plants across the world. The degree of dependence of a country’s main food crops on genetic diversity in areas of origin and primary diversity located elsewhere has been established (FAO, 1996a; Palacios, 1997) and later on confirmed (FAO, 2010) by several worldwide studies (Khoury et al., 2015). They show that all regions in the world are highly dependent upon resources originating for another region, North America being the highest dependent region, and Asia and the Pacific region being the least dependent region. As Palacios says (1997: 3), ‘[m]odern agriculture is heavily dependent on plant genetic resources from practically all countries. [...] There is therefore an ongoing need to exchange plant genetic resources’ to allow countries to produce their food and reach food security. This argument explains the rationale for establishing the multilateral system, an innovative governance scheme, where rights and obligations for seed man­agement are collectivized.

Up to recently, the way the MLS was implemented (see below same chapter) did not seem to contribute significantly to reaching food security. As I argue in Chapter 6, new ways of envisaging and implementing the Treaty’s overall goals

The Treaty on Plant Genetic Resources 81 are necessary to enable their realization. It is argued that sustainable agriculture and food security should be direct objectives rather than overall goals to the Treaty, matched with technical tools and concrete policy guidance to reach them. Gladly, a shift seems to have occurred at GB7. With the adoption of Reso­lution 1/2017 (being the first agenda item shows the importance contracting parties devoted to the matter), the Governing Body has decided to materialize much the Food Security objective by linking it with the achievement of the goals of the 2030 Agenda for Sustainable Development. This mind (and language) shift might be the start for a much more concrete and delineated policy guid­ance to reach global food security. Language in Treaty documents and decisions shifts more and more to food security ‘and nutrition’ and links food security (and sustainable agriculture) to climate change, thereby integrating the two Treaty overall goals into the wider political objectives and challenges that the interna­tional community is faced with. Resolution 1/2017 emphasizes

that the effective implementation of the International Treaty contributes to the achievement of the 2030 Agenda for Sustainable Development (2030 Agenda) and the Sustainable Development Goals (SDGs), in particular SDG Targets 2.5 and 15.6, relating to conservation, and access and benefit-sharing of genetic resources, while also contributing indirectly to SDGs 1, 12, 13 and 17.

It also highlights ‘contributions made by the Multilateral System to the achievement of SDG Target 2.5 by facilitating access to over 4.2 million samples to breeders, farmers and stakeholders all over the world’, thereby relating the Treaty policy and objectives to other international instruments. It further decides

to take stock, at its Ninth Session in 2021, of progress made in the achieve­ment of SDGs 2 and 15, in particular targets related to PGRFA’ (ibid: point 12), thereby setting, for the first time, some sort of evaluation of the reach­ing of the food security goal of the Treaty. Finally, it requests ‘that the new Funding Strategy and its result framework emphasize the contribution of the International Treaty to the 2030 Agenda.

(ibid: point 16)

This move allows the dedication of the necessary funds to more concretely set objectives encompassed in wider international instruments and political com­mitments (Agenda 2030 and SDGs), for which progress made in the implemen­tation by the contracting parties will be evaluated for the first time. This might contribute to rendering the overall food security goal more tangible.

To conclude on the Treaty’s overall goals of food security and sustainable agriculture, it can be said that they justify the mere existence of the MLS (and even perhaps its enlargement to all PGRFA), and that their relevance is likely to increase in the future due to environmental, economic and other hazards. The fact that food crises continue to be chronical, that hunger and malnutrition are

far from being eradicated (SOFI, 2017), shows that food security remains a key objective to be attained through the promotion of sustainable agriculture(s). It also requires taking into account a wider approach to food policy, where economic power and geopolitical interests are acknowledged. The very recent shift in policy towards food security of the GB might show that new ways of envisaging and implementing these overall goals are necessary to enable their realization. It is argued that sustainable agriculture and food security should be direct objectives rather than overall goals to the Treaty, matched with technical tools and concrete policy guidance to reach them (see Chapter 6).