Open Access Seeds and Breeds: The Role of the Commons in Protecting Farmers’ and Livestock Keepers’ Rights and Food Security

Chapter 5
Open Access Seeds and Breeds: The Role of the Commons in Protecting Farmers’ and Livestock Keepers’ Rights and Food Security

Brendan Tobin


Open access is now the default, and it is now the time to decide what we are going to do to make it happen.

Michael Marus – CGIAR Consortium Office (2012)

In a time of unparalleled wealth and food abundance there are still over 870 million people chronically undernourished in the world.1 This food insecurity is due not so much to a lack of food as lack of access to food for the poorest sectors of society. Despite significant efforts in recent decades to reduce poverty and improve food production, food security continues to evade millions of people due to increased food costs caused by climate change, financial speculation, increased production of non-food cash crops, and the progressive consolidation of control over crop and breed diversity through the use of IP and other market tools. The grant of private property rights over lands, biological resources and the products of research and development using genetic resources and traditional knowledge poses particular threats to farming and livestock breeding communities dependent upon traditional rights of access to ‘common property resources’. In response to the expansion of private property rights a dynamic alliance has emerged as indigenous peoples, farmers and livestock keepers, research institutions, international ex situ collections, liberal and developing country states and international human rights bodies have bonded together to resist the continuing enclosure of the commons.

Building upon human rights law and development of sui generis legislative, contractual and quasi-contractual tools, this resistance is leading to the emergence of new constructed commons to secure local and global access to the land, resources and knowledge necessary to secure local and global food security and well-being. This chapter examines the potential role of an open access genetic resource commons for the protection of farmers and livestock keepers’ rights and achievement of food security. The chapter begins by outlining the importance of agrobiodiversity to food security, as well as some of the threats posed by IP regimes and concentration of the seed and breed sectors for local and global food security. The chapter then explores a range of legal measures that have been proposed and/or adopted to protect indigenous and local community rights over their genetic resources and traditional knowledge, and the extent to which such measures help secure holistic protection of their resource and knowledge rights. In doing so the chapter discusses the limitations of existing international law for the protection of farmers’ and livestock keepers’ rights and the need for a more expansive approach that helps secure their land, resource and knowledge rights. It goes on to consider the potential merits of proposals for protection of farmers’ and livestock keepers’ rights through construction of a protected ‘open access’ genetic commons and the vital role that indigenous peoples and local communities’ own legal regimes and decision-making authorities have to play in ensuring the protection of their resources, land and culture.

The chapter concludes by arguing that open access licensing regimes have an important role to play in securing a protected genetic commons and, thus, aiding the recovery of seed and breed sovereignty of local farmers and livestock keepers. This does not, however, mean that open access is the panacea of food security. The effectiveness of open access mechanisms will depend upon how they are integrated within the wider bundle of legal and quasi legal instruments and influences including human rights, broader IP regimes, farmers’ and livestock breeders’ rights, community legal initiatives, sui generis laws for protection of traditional knowledge, international compliance mechanisms (such as disclosure of origin in IP applications), and increased recognition and protection of indigenous peoples and local communities’ customary laws and biocultural protocols. Considered as a complex, this bundle of rights has the capacity to secure the holistic and expansive protection of what the late Darrell Posey described as ‘Traditional Resource Rights’ – a unified rights concept that identifies the inseparable relationship between cultural and biological diversity, as well as human rights such as Indigenous and local communities’ right to development and environmental conservation.2

The Importance of Agrobiodiversity for Local and Global Food Security

Global food security and the livelihoods of hundreds of millions of people are inextricably dependent upon effective management and continuing access to plant and animal genetic diversity.3 Local farming and livestock keeping systems play a pivotal role in global food security. Locally developed seed varieties, for instance, provide 60-90 per cent of seed planted in developing countries and are vital for local food security and for replenishment of ex situ collections.4 Likewise, up to 50 per cent of the sheep, yak, camelid and goatherds breeds of those living in the most inhospitable and marginal dryland areas in Africa, Asia, Latin America and the Near East are locally adapted breeds.5 Local seeds and breeds are, however, severely endangered by a range of climatic, economic, social and cultural threats.

One of the most significant threats to local seeds and breeds is an ever-increasing reliance on monocultures. This is brought about to a large extent by the increasing reliance on a few dominant breeds and the associated concentration of farming and grazing lands in the hands of national elites and foreign private and corporate interests.6 In Sri Lanka, for instance, the number of rice varieties has decreased from 2,000 in 1959 to less than 100 in 2012 of which 75 per cent descend from a common stock, while in the United States 50 per cent of the wheat crop is represented by a mere nine varieties.7 In terms of animal genetic resources, the Global Databank on Animal Genetic Resources classify 21per cent of animal breeds as being ‘at risk’ with a further 36 per cent classified as of unknown status.8 Scherf estimates that out of 5,330 livestock mammals over 704 breeds are already extinct,9 with more than 60 breeds becoming extinct in the first six years of the twenty-first century.10 Coupled with this, marginalization of traditional livestock production systems and the increasing consolidation of rights to land, water and forage in the hands of well-off farmers, urban residents or the government, is further accelerating resource erosion and undermining both farmers’ and livestock keepers’ rights.11 The rise of monocultures – that is, the narrowing genetic base and the rapid erosion of crop diversity – has significant implications for local and global food security. At the same time, the failure to internalize the costs of conservation of local seed varieties and animal breeds means poor farmers and livestock breeders, who are, in Brush’s words, ‘often poor and members of ethnic minorities’,12 are in essence subsidizing global crop conservation.13

The reliance on monocultures, and its impact on local and global food security, is a human rights issue. The right of all persons to adequate food and freedom from hunger is set out in Article 11 of the United Nations International Covenant on Economic Social and Cultural Rights (ICESCR). Article 11.1 of the ICESCR requires States to recognize ‘the right of everyone to an adequate standard of living for himself and his family, including adequate food’. Article 11.2 recognizes that more immediate and urgent steps may be needed to ensure ‘the fundamental right to freedom from hunger and malnutrition’. All states are obliged to secure these rights through their national legal system.14 The fundamental right to food is further fortified by the provisions of common Article 1 of both the ICESCR and the United Nations International Covenant on Civil and Political Rights (ICCPR), which provides that ‘no people may be deprived of their means of subsistence’. Appearing, as it does, in both the ICESCR and ICCPR, this provision is both binding and enforceable. And, as of 2011 the right to food has been explicitly or implicitly protected under 56 national constitutions, in a further 51 countries the right is recognized due to the direct applicability of international treaties in their territories, while ten countries have adopted framework legislation on the human right to food or food security.15 In India, for example, the Supreme Court has interpreted the right to life under the Indian Constitution to include the right to food.16

What is being done to ensure that there is sufficient and nutritious food? Agro-biotechnology, and its promises of high yielding plant varieties, is often wheeled out as the answer to achieving food security. Increased production of food through new technologies does not, however, necessarily equate with increased access to either food or technology. Diversion of agricultural production to nonfood cash crops for international markets and massive land grabs for commercial agricultural purposes are just two of a range of agro-industrial practices that are having a detrimental impact on food security.17 Added to this, over the past 30 years or so, a drop in government investment in research, developments in biotechnology and the expansion of IP protection over life forms has provided the incentives for multinational corporations aggressively to enter the field.18 The result has been the rapid consolidation of the seed industry and the transformation of research products into private goods through the use of IP.19 By 1999 threequarters of patents on transformation technologies and genetic resources were controlled by only seven firms, the so-called ‘Gene Giants’.20

The effect of the consolidation of seeds and breeds has been supported and amplified by the adoption of the Agreement on Trade-related Aspects of Intellectual Property (TRIPS), which requires all states to provide some form of protection for plant varieties. The implementation of TRIPS has raised tensions between intellectual property, human rights and food security. The Sub-Committee for the Promotion of Human Rights of the UN Commission for Human Rights, for instance, finds ‘conflicts between the IP rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other’.21 The High Commissioner for Human Rights has criticized TRIPS, arguing that ‘[a] human rights approach … would explicitly place the promotion and protection of human rights, in particular those in ICESCR, at the heart of the objectives of [IP] protection’.22 The specific threat IP poses to farmers has been signalled by the UK government-appointed IPR Commission, which claims that ‘[IP] protection … [carries] … the risk of restricting farmers’ rights to reuse, exchange and sell seed … practices which form the basis of their traditional role in conservation and development’.23 With regards to impacts on food security, De Schutter warns of the potential negative impacts of IP on accessibility to the means of food production.24 Although obligations under the ICCPR and IESCR fall primarily on states, the Commission on Economic, Social and Cultural Rights highlighting the relationship between nation states, private business, and food security, states, in General Comment 12, that ‘[a]s part of their obligations to protect people’s resource base for food, States parties should take appropriate steps to ensure that activities of the private business sector and civil society are in conformity with the right to food’.25

The tension between IP and food security is further complicated by international regulation of access to genetic resources and biological diversity. At the same time that IP regimes have expanded both geographically and in their scope, the global treatment of genetic resources has swung from one of largely unregulated access to one of jealously guarded sovereign rights, as recognized under the Convention on Biological Diversity (CBD). The result is a twofold squeeze on the commons. On the one hand, many states have assumed the right to regulate access to all genetic resources, including those belonging to farmers and livestock keepers. On the other hand, IP protection is further diminishing the scope and accessibility of previously freely available resources. For Kloppenburg the solution is clear, if true ‘food sovereignty’ is to be achieved then, he says, ‘control over genetic resources must be wrested from the corporations and governments that seek to monopolize them and be restored to, and permanently vested in, social groups and/or institutions with the mandate to sustain them and to facilitate their equitable use’.26 With the adoption of the International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty) the international community has made an initial step towards the construction of a virtual commons around a small group of genetic resources for food and agriculture. At the same time it has given token recognition to the notion of farmers’ rights, and opened a door of opportunity that may yet have an important role to play in the struggle for recognition and protection of their rights to land, resources, knowledge and self-determination. How, then, are farmers’ and livestock keepers’ rights protected?

Legal Protection of Farmers’ and Livestock Breeders’ Rights

During the years immediately following the adoption of the TRIPS agreement it appeared as if nothing could halt the seemingly inexorable expansion of IP regimes and the associated corporate enclosure of the commons. As developing countries became resigned to the imposition of TRIPS, indigenous peoples, local communities and farmers’ groups, around the world mobilized to oppose patents and other proprietary ownership rights over living things and their constituent parts. Incensed by iconic cases of biopiracy indigenous peoples took to the streets, courts and international fora, to defend their cultural and biological heritage.27 This included challenges to notorious cases of biopiracy such as the patenting of Ayahuasca, a sacred plant used for centuries by Amazonian peoples, and patents derived from use of neem, tumeric, maca, yellow beans and basmati rice. In many cases these patents have been shown to be fatally flawed leading Silvia Ribeiro to describe the IP system as ‘broken beyond repair’.28

Denouncing biopiracy as another form of colonialism – colonial expropriation of traditional knowledge – played well among developing countries still smarting from the imposition of TRIPS. Framing the debate in this way also garnered support among liberal European states, international organizations with mandates in the area of development and human rights, research institutions concerned to show commitments to fair and equitable benefit sharing, and a host of international, local and issue based NGOs. The informal alliance that coalesced around traditional knowledge provided the basis for the first serious challenge to the progression of the IP. Such resistance alone would have been futile, however, were it not supported by proposals for legislative and other measures that could turn the tables on the powers supporting uncontrolled expansion of IP and in the process protect the rights of local communities and indigenous peoples over their genetic and cultural heritage. To be effective these proposals had to address not only IP issues but also issues of land, resource, knowledge and cultural rights, and their status under indigenous peoples and local communities’ own legal regimes. Most importantly, such proposals had to ensure that the very process of protection of resources and knowledge did not undermine the cultural integrity of its custodians.

One of the earliest and most influential proposals was Posey’s promotion of the concept of ‘Traditional Resource Rights’.29 In Posey’s view, the effective protection of indigenous peoples and local communities’ rights over their resources and knowledge required recognition and enforcement of a ‘bundle of rights’ including, most importantly, rights of self-determination30 and:

basic human rights, right to development, rights to environmental integrity, religious freedom, land and territorial rights, right to privacy, prior informed consent and full disclosure, farmers’ rights, intellectual property rights, neighbouring rights, cultural property rights, cultural heritage recognition, rights of customary law and practice.31

There have been numerous other proposals dealing with indigenous peoples and local communities’ knowledge and resource rights. Nijar, for example, took a more direct path than Posey by drafting a proposal for a community intellectual rights regime that eschewed individualistic proprietary rights in favour of a system of collective community control over resources.32 Nijar’s proposal was influential in the adoption of model legislation for Africa, which prohibits the patenting of life forms.33 At the national and regional level legislation to protect biodiversity34 and traditional knowledge35 provides varying levels of recognition and protection to farmers belonging to indigenous peoples and local communities. In more recent times, proposals have emerged for the establishment of agrobiodiversity conservation zones as a means to protect local farmers’ varieties.36 At a more local level, indigenous peoples and local communities, often working in conjunction with NGOs, have established community seed banks, databases and registers of genetic resources and traditional knowledge.37 Going even further, community conservation and biocultural heritage areas, such as the Potato Park in Peru, provide support for local conservation, repatriation and control over local seed varieties.38

Another significant outcome of indigenous peoples’ efforts to exercise their sovereign rights over their lands, resources and knowledge has been the development of biocultural protocols. The term ‘biocultural protocols’ is used to embrace a wide range of contractual agreements, codes of conduct and procedures for application regarding access to and use of their lands, resources and knowledge.39 Forged by experience and drawing heavily upon their own laws, customs and practices, biocultural protocols have become an important tool for community empowerment and construction of interfaces between indigenous peoples’ and local communities’ legal regimes and state and international law.

Traditionally, IP is seen as antithetical to protecting the interests of indigenous peoples. In fact, indigenous peoples and local communities have strongly and consistently opposed the use of patents and other forms of IP to secure their ancestral rights over genetic resources and traditional knowledge. Barsh, for example, claims that a property rights approach will lead to ‘a distortion of the very nature of indigenous cultures, and of the relationship between Indigenous peoples and their lands’.40 This does not mean, however, indigenous peoples have completely rejected the possibility that some forms of IP may provide means for protecting their resource and knowledge rights. Trademarks, geographical indicators and copyright have all been looked to as potential means to secure rights over indigenous products and traditional cultural expressions. Their limited use to date demonstrates, however, their restricted utility. For instance, as the Federal Court opined in the case of Yumbulul v Reserve Bank of Australia, ‘Australia’s copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin’.41 In the view of aboriginal peoples, the limitations of IP law make it insufficient to regulate rights over stories and rock paintings made thousands of years ago, and the onus is on national and international law to change to respect indigenous peoples’ customary laws.42

One IP-based proposal that has gained widespread support43 is for the modification of IP application procedures to require disclosure of the origin of genetic resources and traditional knowledge and evidence of prior informed consent as a condition for processing applications for patents and other IP.44 The idea behind the disclosure of origin concept is to shift the burden of proof regarding rights to make use of genetic resources and traditional knowledge from its custodians to its users.45 The disclosure concept has been adopted in part by Decision 6/24 of the CBD and the Nagoya Protocol, adopted in October 2010, provides for a international system of certification of compliance with national access and benefit sharing legislation, seen as a key element for a functional disclosure regime.46 Developing countries, led by Brazil, Peru and India, have made numerous proposals for modification of TRIPS at the WTO where a majority of member states now, reportedly, support some form of binding disclosure requirements.47 Disclosure requirements are now found in the legislation of many developed and developing countries48 and have also been incorporated into regional law by the Andean community.49 Disclosure issues are also a key element of current negotiations at WIPO for the development of new international instruments on genetic resources, traditional knowledge and traditional cultural expressions.

All the foregoing initiatives have in their own way helped to advance national and global protection of indigenous peoples’ and local communities’ rights to their resources and knowledge. While it is still too early to determine the impact of existing mechanisms for protection of their rights, by slow, sometimes faltering and piecemeal steps, Posey’s concept of a holistic system of ‘Traditional Resource Rights’ is taking shape. A key component of that vision is the concept of farmers’ rights, an issue to which we now turn.

Rights of Farmers and Livestock Keepers

The notion of farmers’ rights, first proposed as a foil for plant breeders’ rights, has been given legal recognition in the Plant Treaty.50 Although widely decried as being too-little, too-late and too-vague, the very recognition of a right in favour of farmers may prove significant in the longer term. This is the view of livestock keepers’, for instance, who are calling for the formalization of farmers’ rights through an international legal regime that recognizes and protects their rights and interests. Just how these rights have evolved and the extent to which they are recognized is the subject of the following analysis.

Farmers’ Rights

Since the 1930s, the adoption of laws permitting the patenting of plants and the granting of plant breeders rights has led to a progressive curtailing of farmers’ freedom to save and sell their seed. At the outset plant breeders’ rights as conceived by the 1961 International Convention for the Protection of New Plant Varieties (that set up the International Union for the Protection of New Plant Varieties (UPOV)) provided a farmers’ privilege to collect and grow the seeds of their harvest. In UPOV 1991 the farmers’ privilege as a right was replaced with a discretionary power exercisable by states.51 As the farmers’ privilege waned, Patrick Mooney and Cary Fowler ‘concocted’ a new concept of farmers’ rights, which they successfully floated during negotiation of the FAO International Undertaking on Plant Genetic Resources for Food and Agriculture (IU). This led to the inclusion of farmers’ rights in the IU.52 The term ‘Farmers’ Rights’ was later defined in FAO Conference Resolution 5/89, as meaning ‘rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources, particularly those in the centres of origin/diversity’.

This language was later reflected in the Preamble to the Plant Treaty53 that replaced the IU upon entering into force in 2004. The Preamble describes a range of rights ‘recognized in the Treaty’ as fundamental to the realization of farmers’ rights including ‘rights to save, use, exchange and sell farm-saved seed, and other propagating material, and to participate in decision-making, and in the fair and equitable sharing of the benefits arising from, the use of plant genetic resources for food and agriculture’. The substantive provisions of the Plant Treaty, however, leave the issue of state recognition of the farmers’ privilege to use farm-saved seed ‘entirely to national decision-makers’.54 On a more positive note, Article 9.2 of the Plant Treaty goes beyond the preambular language including reference to traditional knowledge.55 That said, the substantive provisions of the Plant Treaty have been prefaced by a chapeau that, according to Mooney, has ‘rendered the strong affirmative language beneath almost irrelevant’.56 The relevant text of Article 9.2 reads as follows:

The Contracting Parties agree that the responsibility for realizing Farmers’ Rights, as they relate to plant genetic resources for food and agriculture, rests with national governments. In accordance with their needs and priorities, each contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote Farmers’ Rights, including:

(a) protection of traditional knowledge relevant to plant genetic resources for food and agriculture …;

(b) The right to equitably participate in sharing benefits from the utilization of plant genetic resources for food and agriculture; and

(c) The right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.

Via Campesina, an international movement that brings together marginalized groups such as peasants, small- and medium-size farmers and women farmers, sees the text of the Plant Treaty as a backward step for farmers’ rights, and a ‘bleak lip service to what these rights should entail’.57 Via Campesina has rejected any approach to implementation of farmers’ rights that relies on distribution of the profits arising from exploitation of IP rights, calling instead for a total ban on IP over seeds and public policies in favour of ‘living farmers’ seed systems, ‘systems that are in our communities and under our control’.58 Far from securing farmers’ collective rights over their local varieties, the concept of farmers’ rights has, in Fowler’s view, been ‘hi-jacked’ as a slogan for ‘advocating a form of [IP] rights for farmers varieties’ while failing to secure farmers’ rights to conserve these resources.59 In an attempt to salvage something from the debris, Argumedo et al., turn to other provisions of the Plant Treaty including Article 5.1 (in-situ conservation), and Article 6 (the requirements for law and policy to support diverse farming systems), which they say, ‘call[s] for a broad interpretation of farmers’ rights which goes beyond the right to benefit-sharing, to include the right of farmers to continue the practices which contribute to the conservation and sustainable use of PGRFA, and to sustain the traditional knowledge and livelihood systems needed for this’.60

A more expansive approach to farmers’ rights is also required to meet obligations relating to access to genetic resources and protection of traditional knowledge under the CBD and the Nagoya Protocol. The Protocol requires all states to ensure that access to and use of traditional knowledge and genetic resources of indigenous and local communities is subject to the communities’ prior informed consent. It also obliges states to take into consideration ‘customary laws and protocols’ in the implementation of the Protocol (Article 12). The obligations under the Nagoya Protocol are of significant importance for the realization of farmers’ rights covering as they do issues of ‘prior informed consent’, distribution of benefits and access to justice. Furthermore, viewed from this perspective the Plant Treaty