The commons and the International Treaty on Plant Genetic Resources for Food and Agriculture

The above-mentioned fruitful literature on the Commons allowed differentiat­ing collective action issues and various ways to address them, in particular when the collective action problem lays in the underuse of the resource rather than its overuse.

Certainly, one specific area of interest for the international management of seeds is the work on ‘anticommons’ (Fennell, 2010; Aoki, 1998; Heller, 1998; Heller and Eisenberg, 1998). Referring to literature developing the ‘antitragedy’ of the commons, di Robilant explains that

[t]he debate is multi-faceted. It provides explanations for the frequent reversal of the Demsetzian path from open access to private property rights. It asks which values and goals a commons regime ought to promote and facilitate. Finally, it considers which legal rules or design principles would best accomplish these goals.

(di Robilant, 2012)

With her work, she addresses the challenges involved in the design of common ownership institutions, and proposes to refocus the design work on promoting greater ‘equality of autonomy’ (ibid). Of course, this path bounds to conceive seeds as a commodity over which property rights ought to be acquired. It excludes other apprehension of the seed (e.g., its cultural, spiritual, biological, social values), in particular as a relational component of a global ecosystem between man/woman and nature (as opposed to the current restrictive economic vision of good out of which a commercial value has to be extracted).

Little legal scientific literature was published on the Plant Treaty during its first years of implementation.²¹ Since then, authors have gained interest in the topic and the Multilateral System has been assimilated to a ‘commons­type’ regime (Dedeurwaerdere, 2012), i.e. a global crop commons (Halewood et al., 2013) or PGRFA commons (Halewood and Nnadozie, 2008), a global genetic commons (Safrin, 2004 : 644; Falcon and Fowler, 2002: 200; also see Helfer, 2005: 219—220), or semicommons (Bertacchini, 2007). However, analysing the Plant Treaty and its MLS as a global seed commons is not an easy task. In 2013, Michael Halewood published a paper where he ‘identifies which subsets of PGRFA are (or could be) included in an evolving global plant genetic resources commons, [as well as] options for policy reforms to provide better tailored institutional support for the plant genetic resources commons’ (Halewood, 2013: 278). He clearly explains the particularity of

Inspiring an effective Plant Treaty 183 the seed commons, in that ‘PGRFA do not fit neatly within the institutional frameworks of analysis that have been developed for natural resources com­mons on one hand, and constructed cultural commons on the other’ (ibid). He analysed the Treaty system according to Ostrom’s eight design principles and identifies loopholes in their realization for an effective common-pool resource for seeds (ibid).

One of the identified difficulties relates to the global dimension of the MLS, as opposed to the generally small and local character of communities studied by Ostrom (Dedeurwaerdere, 2012; Brousseau et al., 2012). As confirmed by Henry and Dietz (2011) or by Stern (2011), a transposition of the design principles from the local to a global setting is not self-evident.