Author(s):Several

Liberating Farmers’ Rights While Ensuring Food Security: The International Seed Treaty

Three intricately related concepts: climate change, biodiversity, and food security have become a central discussion amongst international political bodies over the last three decades. Analyzed from a unidimensional perspective in respect to Earth’s exponential population growth and carbon-emitting practices, this triad predicts the rapid degradation and extinction of biotic entities as well as an ever-growing threat to the future security of food. Despite living in an era which boasts high concern for the optimization of the human condition, enforcement of human rights protocol, and the implementation of legislation geared toward conservation policy, more than a billion people remain undernourished. Unfortunately, legislative attempts at ensuring adequate food supply can only be as effective as available natural resources allow. As the environmental matrix continues to decay, national and international political bodies attempting to alleviate food shortage will remain subservient to Earth’s biological capacity. Recognizing the potential of this calamitous peril, in 2001, the United Nations Food and Agriculture Organization (FAO) settled the International Treaty on Plant Genetic Resources for Food and Agriculture. Although critical for ensuring the future of food security and biodiversity protection, this treaty, also referred to as the International Seed Treaty, was not formed blindly. The genesis of the International Seed Treaty was molded in light of developing international intellectual property regulations.

An Unanticipated Tie: TRIPS and Ecology

In 1995, due to an international upsurge in innovation, trade, technological development, and need for trans-globally protected exclusivity rights, the World Trade Organization (WTO) and their Member Parties enacted the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Through this agreement, minimum standards of intellectual protection for copyright, patents, and trademarks were established for 151 WTO Members. The scope of intellectual property rules allocated through TRIPS extended beyond the conventional application of exclusivity into the agricultural sector. Under TRIPS, if a Member State so chooses, micro-organisms and specific plant forms may be patented (Article 27). Unintentionally, this authorization has resulted in both profound ramifications and optimism for the future of food security. While TRIPS has fashioned prodigious incentive to innovate the industrialization of agricultural production, it has disincentivized agrarian advancement in sustainable conservation unforeseeably. It can be argued that while innovative incentivization of sustainable farming practices is stagnant, intellectual property rights hold the substantial potential to provide food security in the short-run (and long-run if ecological conditions permit). Such advantage can be illustrated through the development of seeds which produce higher yields, the improvement of nutritional value through the advancement of agrobiotechnology, and the enhanced “capacity of the plant to absorb more photosynthetic energy….[and] varieties that have the capacity to combat fertilizers, pesticides, and water.” From a global agricultural purview, these advancements, though indispensable to ensuring food access in the future, are detrimental to small-scale farmers. Intellectual property regulations “tend to facilitate control over seeds and related knowledge by agri-businesses…this is linked in part to the royalties that farmers must pay to acquire protected seeds.” The optimization of the future of food security as it relates to intellectual property rights is, therefore, linked to crafting affordable access to agricultural developments for small-scale and subsistence farmers.

The International Treaty on Plant Genetic Resources for Food and Agriculture

Recognizing the risks of not addressing further ecological degeneration, obstacles surrounding sustainable agricultural innovation, and plant access inequity for marginalized farmers, the International Seed Treaty in accordance with the Convention on Biological Diversity was established. The underlying purpose of the treaty, as defined in Article 1, is to ensure “the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use…for sustainable agriculture and food security.” The Treaty is based on four pivotal understandings;

The world’s diverse supply of crops is not possible without the labor provided by farmers in both developed and developing countries. Therefore, preserving farmers’ rights is vital. Globally, plant genetic resources used for agricultural purposes must be sustainably utilized. There is a substantial need for a global scheme which provides access for farmers to plant genetic material. Advancements made through access to genetic material should be shared amongst other countries, farmers, plant breeders, and scientists, regardless of economic stature.

The International Seed Treaty is divided into seven parts; all parts retain the Treaty’s scope of food and agriculture as they relate to plant genetic resources. The Treaty is built upon a multilateral system which ensures benefit-sharing through providing access to plant genetics to Member Parties. Farmers may use these genetics for research and development purposes, breeding, and agriculture. However, any profits gained from Treaty access must be placed in a designated conservation fund. Below is a concise overview of the Treaty.

Part Two: General Obligations

Under Article 5, when permitted by national legislation, Contracting Parties are to encourage techniques fostering the development of plant genetic conservation and sustainability. Promotional efforts can include: supporting small-scale agriculture conservation efforts, the preservation of wild crop relatives, and the “survey and inventory [of] plant genetic resources for food and agriculture.” Additionally, Article 5.2 advises Contracting Parties to employ proactive measures which will mitigate the likelihood of threat to plant genetic materials. A major factor attributing to Party support lies in the creation and enforcement of conservation policy. Article 6 details the recommended factors which a state may consider implementing within their plant genetic regulations. According to the multilateral treaty, fair agricultural practices (advocating the diversification of farming systems), agriculturally focused biodiversity research, crop diversity obtainability, and plant breeding should be included within corresponding state provisions. As a member of the Treaty, Article 7 requires the cooperation between Parties through international organizations. Collaboration is intended to serve two chief purposes. First, access and sharing of plant genetic resources will allow the economies of developing countries to strengthen. Second, these measures will augment “international activities to promote conservation, evaluation, documentation, genetic enhancement, plant breeding, seed manipulation; and sharing, providing access to, and exchanging…plant genetic resources for food and agriculture and appropriate information and technology” (Article 7.2).

Part Three: Farmers’ Rights

As previously mentioned, safeguarding Farmers’ Rights was a principle mission upon enacting the International Seed Treaty. Article 9 specifically addresses the obligation of Contracting Parties to observe Farmers’ Rights as they relate to plant genetic resources. According to the provision, national legislation should be enacted to protect traditional knowledge, allow for equitable participation in benefit sharing of plant genetic resources, and create a platform enabling farmers to participate in the conservation and sustainability decision-making process (pertaining to agriculture). Article 9 was designed to liberate farmer voice and opportunity, not to limit rights to exchange propagating material.

Part Four: The Multilateral System of Access and Benefit-Sharing

Although the International Seed Treaty relies on trans-global participation, Article 10 discloses a sovereign states’ privilege to control the usage of their plant genetic resources. This right incorporates the idea “that the authority to determine access to those resources rests with national governments and is subject to national legislation.” Article 11.3 advises Parties to encourage individuals within their national jurisdiction holding plant genetic resources for food and agriculture to participate within the Multilateral System. Under the Treaty, access to plant genetic resources is curtailed by specific conditions. These restrictions state (Article 12.3):

Provisioning may be granted for “research, breeding, and training for food and agriculture” (so long as utilization is not aimed at chemical or pharmaceutical purposes).

Access shall be prompt and costs should not exceed than those minimally involved.

Individuals relying on the Treaty may not establish intellectual property claims restricting plant genetic resource availability.

All outstanding plant genetic material currently protected by intellectual property rights must be compatible with respective international and domestic laws.

Plant genetic resources secured under the multilateral treaty must remain open to recipients of the Multilateral System.

Under the International Seed Treaty (Article 12.5), it is the responsibility of the Contracting Parties to “ensure that an opportunity to seek recourse is available, consistent with applicable jurisdictional requirements, under their legal systems, in case of contractual disputes….”

Article 13 defines Contracting Parties’ agreement to exchange of information, access to and transfer of technology, capacity building, and sharing of monetary and other benefits of commercialization. Below are the Treaty’s requirements for each requisite:

Exchange of Information: Information governed by the Treaty must be freely available to Members. Therefore, Contracting Parties must transparently publicize material encompassing “catalogs and inventories, information on technologies, results of technical, scientific and socio-economic research, including characterization, evaluation, and utilization, regarding those plant genetic resources for food and agriculture under the Multilateral System” (Article 13.2). Access to and transfer of technology: Contracting Parties are required to provide and facilitate access to technology “for the conservation, characterization, evaluation, and use of plant genetic resources for food and agriculture which are under the Multilateral System” (Article 13.2). This transfer includes technology which is protected by intellectual property rights and the dissemination of information to developing countries participating in the Treaty. Capacity-building: The Treaty (and therefore it is Contracting Parties) prioritizes the formation of scientific and technical programmatic learning “in conservation and sustainable use of plant genetic resources for food and agriculture…developing and strengthening facilities for conservation and sustainable use…and carrying out scientific research…in developing countries and countries with economies in transition” (Article 13.2). Sharing of monetary and other benefits of commercialization: Benefit-sharing opportunities are to involve both private and public sector endeavors. If a plant genetic resource arising from this treaty is commercialized, the recipient commercializing must “pay to the mechanism…and equitable share of the benefits arising from the commercialization of the product, except whenever such a product is available without restriction to others for further research and breeding…” (Article 13.2). The payment mechanism referred to is revealed in Article 19f as the “Trust Account.” This account was formed with the intent of “receiving and utilizing financial resources that will accrue to its for purposes of implementing this Treaty.”

Part Five: Supporting Components

Per Article 17.1, Contracting Party participation is expected to aid in facilitating the advancement of information transfer. This exchange is founded on developing pre-existing information systems and knowledge encapsulating scientific, technical, and environmental studies.

Part Six: Financial Provisions

Becoming a signatory to the Treaty establishes a Party’s agreement that a funding strategy will be proposed. According to Article 18, the motives of creating a funding strategy are to “enhance the availability, transparency, efficiency, and effectiveness of the provision of financial resources to implement activities under this treaty.” Funding is critical to the participation of countries with economies currently experiencing a transitory period. For developed Contracting Parties, they hold a financial obligation to provide resources to developing countries so that the latter can enforce the International Seed Treaty (Article 18.4).

Part Seven: Institutional Provisions

Should a dispute arise between Contracting Parties, reconciliation will be achieved through negotiation or (as a last resort) third-party mediation (Article 22).