The international treaty on plant genetics moves a step ahead with farmers’ rights and DSI

The recently-concluded Governing Body session of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) negotiated farmers’ rights over plant genetic resources in food and agriculture. It also revived discussions on enhancing benefit-sharing and expanding the list of crops covered under the Treaty.

The meeting underscored examining the possible impact of digital sequence information (DSI) on farmers’ rights. This discussion comes just months before the crucial 15th Conference of the Parties to the Convention on Biological Diversity (COP 15) deliberates on DSI, which refers to data derived from genetic resources, used in research. India demanded DSI discussions in the Treaty be independent of the COP 15 discussions.

Hosted by India from September 19 to 24, 2022, the Ninth Session of the Governing Body (GB-9) focussed on the theme, Celebrating Guardians of Crop Diversity: towards an inclusive Global Biodiversity Framework, recognising the close links between the Treaty and the Convention on Biological Diversity (CBD).

The ITPGRFA, also known as the International Seed Treaty or Plant Treaty, is a major international agreement among member countries to conserve, use and manage plant genetic resources for food and agriculture. The Treaty ensures that farmers and plant breeders easily access the raw genetic material needed to develop new crop varieties, including those with higher yields and those that are resilient to climate change. The Treaty was signed in 2001 in Madrid, and entered into force on June 29, 2004. Currently, the Treaty has 149 Contracting Parties which are countries and inter-governmental organisations who sign and agree to abide by the Treaty conditions.

The GB-9 finalised a resolution recognising the role of farmers, as ‘guardians of crop diversity’. The Indian government in a press release noted that the resolution recognised “the role of communities, farmer-conservers and women” as the guardians for conservation and continued availability of crop diversity. However, there was no consensus on what the legal measures would be for implementing these farmers’ rights.

The session also established a ‘contact group’ that would guide a draft process for re-starting negotiations to enhance the functioning of the Treaty’s Multilateral System on Access and Benefit-sharing mechanism (MLS). These negotiations had made no progress during the GB-8.

The Multilateral System on Access and Benefit-sharing mechanism covers 64 of the world’s major crops, accounting for about 80% of the food derived from plants. On joining the International Treaty, countries agree to make their genetic diversity and related information about the crops stored in their public gene banks available to all members through the Multilateral System (MLS).

The GB-9 agreed upon the document of options presented for the realisation of farmers’ rights as set out in Article 9 of the Treaty, albeit with a footnote. Article 9 addresses farmers’ rights with Contracting Parties, agreeing that national governments are responsible for farmers’ rights, as they relate to plant genetic resources for food and agriculture.

Article 9 is a cornerstone of the entire treaty, says agricultural expert R. C. Agrawal, one of the co-chairs of the Ad Hoc Technical Expert Group on Farmers’ Rights (AHTEG-FR) under the Treaty, mandated to produce an inventory of national measures taken to realise farmers’ rights.

However, the committee has failed to build consensus on a controversial provision of Article 9, related to legal implementation of farmers’ rights, such as legislative measures related to plant genetic resources for food and agriculture (PGRFA). This provision comes under category 10 of the 11 categories in Article 9. In an effort towards consensus, the committee co-chairs proposed their options under category 10. The GB then accepted the document of options with a footnote pointing out that the options under category 10 are proposed by the AHTEG’s co-chairs.

Svanhild-Isabelle Batta Torheim, the other co-chair of the AHTEG-FR, says that the treaty is the only legally binding international instrument that recognises farmers’ rights to seeds. “Through ITPGRFA, people hope that these rights will be realised and farmers and local communities will continue being the guardians of crop diversity. The option document illustrates a wealth of ways to realise farmers’ rights,” said Batta Torheim, a senior policy advisor at the Department of Forest and Natural Resource Policy in Norway’s Ministry of Agriculture and Food. She was representing developed countries.

When asked why there was no consensus over category 10 of Article 9, Agrawal said, “Around 80% of farmers in India, own less than two hectares of land. Developing countries generally support such legal measures to ensure farmers’ rights. This is not the case in developed countries and the pattern of farming is different there. It is big in scale. Because they do not want any farmer to engage in saving seed, use it repeatedly or share them with peers. Thus, developed countries talk more about breeders’ rights. While under-developed and developing countries talk for breeders’ and farmers’ rights both, because their farmers need legal support.”

About 70% of India’s rural households depend on agriculture for their livelihood. Of this, 82% are small and marginal farmers.

Farmers’ rights gradually resemble human rights

To build their case in favour of strong peasants’ rights, many Contracting Parties to the Treaty underlined the global recognition of farmers’ rights as human rights.

Norway’s Batta Torheim also shared the same with Mongabay-India. When she was asked about the reason for the conflict regarding farmers’ rights, she said, “There is “conflict”/different views and priorities to which legal measures are appropriate/necessary to implement farmers’ rights (including to what degree intellectual property rights could be perfectly balanced with farmers’ rights or to what degree intellectual property rights are a problem to the realisation of famers’ rights).”  She was referring to farmers’ rights, particularly the right to save, use, exchange, and sell farm-saved seed.  In addition, the relevance of human rights became a highly debated topic at this session of the Governing Body. It seems to be a topic that would require further debates in the future, she said.

A farmer from the Chhindwara district of Madhya Pradesh, Tanmay Joshi, who is also part of the AHTEG committee, explained the context of ‘human rights’. To ensure that the committee’s report gets accepted, many referred to the recent acknowledgement of farmers’ rights as human rights by the United Nations.

Though the committee failed to build consensus over category 10 (whether farmers’ right is legally binding or not) of Article 9, Tanmay Joshi still finds it a positive development. He explained that even the 35-member committee working for five years, has fail to clear the cloud over the legal aspect of farmers’ rights. It makes a strong case for the GB to take the subject seriously and explain its legality, he indicated, and that it can explore whether the clause is legally binding or not. Now, people will demand it, he said.

When Batta Torheim was asked whether she sees any possible solution to the conflict in near future, she says, “The “conflict” with plant breeders’ rights is the very reason for the push for realisation of farmers’ rights during the discussions in the 1980s. So, I do not think that these will be easily solved once and for all. But maybe a continued process would contribute to better understanding. The continued process includes discussions at the global symposium. Plant breeders’ rights are today pushed in a very stringent way through the 1991 Act of the UPOV convention.” She termed the Indian law a good combination of plant breeders’ rights and farmers’ rights. As per her, it illustrates there could be an alternative approach.”

On September 20 during the GB-9, India offered to host a global symposium on farmers’ rights. This symposium will aim to share experiences and discuss future work on Farmers’ Rights. It will also work for the assessment of the implementation of farmers’ rights in various countries.

Digital Sequence Information and farmers’ rights 

The GB-9 also included Digital Sequence Information (DSI) in its agenda item and called upon the Treaty Secretariat to include it in its multi-year programme of work (MYPOW). The GB intends to explore the possible impact of digital sequence information (DSI) on farmers’ rights. International benefit sharing from DSI is a “make or break issue” for the 15th Conference of the Parties to the Convention on Biological Diversity (COP 15) scheduled for December 2022 in Canada, considered one of the most important decadal environmental deals.

In recent times, DSI has garnered the attention of several global bodies. Along with CBD, the World Health Organisation and the Convention on the Law of the Sea are addressing the opportunities and challenges associated with DSI. The Contracting Parties to the Plant Treaty agreed to take the DSI discussion ahead to understand the possible impact of DSI on farmers’ rights and benefit sharing.

“Although in the resolution (adopted at the GB-9) they said we must look at the outcome of December meeting of the UN CBD (COP 15), we feel as PGR (plant genetic resource) scientists/workers that discussion under the treaty is much more advanced. We are only talking of plant genetic resources (under the Treaty). There are genes and gene constructs that are used for developing new varieties. So the scope of the (ITPGRFA) Treaty is narrower than the CBD. Since this (genetic sequence information) is available in public databases and anybody can use it, there is no traceability, but there is traceability of benefit sharing. So, we feel that DSI implications on farmers’ rights should be discussed separately under the Treaty,” Pratibha Brahmi, Principal Scientist, Germplasm Exchange and Policy Unit, at ICAR’s National Bureau of Plant Genetic Resources, told Mongabay-India.

“We are clear that the benefit-sharing arising out of varieties developed using DSI or genetic sequence data must come from the treaty to the Benefit-Sharing Fund,” said Brahmi.

Tanmay Joshi says that benefit-sharing linked to DSI was an important point of the GB-9 negotiations. Many countries were concerned about whether seed companies are getting patents over seeds using DSI. For example, Argentina on behalf of the Latin America and Caribbean Group (GRULAC) and Lebanon representing the Near East raised the issue of equitable benefit sharing from genetic resources in the form of DSI.

Those companies using DSI, are not bound to sign the standard Material Transfer Agreement (SMTA), a contract for those assessing plant genetic material from the Multilateral System (MLS).

A farmer leader Yudhvir Singh from Bharatiya Kisan Union (BKU) also presented his view during the negotiation and raised the issue of DSI. While talking to Mongabay-India, he said, “We want some mechanism to ensure that the companies using DSI also come into benefit sharing. Once they get the publicly available virtual data, they don’t need to have the physical one and they can easily get a patent. By using new techniques, especially DSI, that are able to access seeds under the multilateral system without any rule.” BKU is also part of La Via Campesina or International Peasants’ Movement, which is a collective of farmers’ organisations.

Need for balance between accessing germplasm from the multilateral system and the benefit flowing back

The Eighth Session of the Governing Body (GB-8) on the Plant Treaty that was held in Rome in 2019, ended with a “stalemate” on the expansion of the list of crops and enhancement of the Multilateral System on Access and Benefit Sharing (MLS). But parties at the just-concluded weeklong GB-9 negotiations in Delhi agreed to “continue the dialogue on these issues.”

“There was a proposal in 2017 by the Swiss government to include all PGRFA (plant genetic resources for food and agriculture) into the list of 64 food crops currently available in the MLS of the Treaty as Annex 1. It was felt that benefit sharing which has to come into the treaty after utilisation of these PGRFA is not realised. There are many reasons why benefits are not coming to the benefit-sharing part of the treaty,” Brahmi, told Mongabay-India.

The way the Treaty works is that benefit doesn’t go to the countries directly from which these resources are accessed, as in the case of bilateral agreements. Under the MLS of the Treaty, it goes to a trust fund (Benefit-Sharing Fund) and is used for supporting activities in different countries, including capacity building, conservation and sustainable use projects.

“Basically, plant breeding is a long drawn process. Whenever a material is accessed from the Treaty, and then there is a long process of breeding a new variety after that, it will be commercialised, and there is always a question mark whether the new variety will be profitable or not. Therefore, only after commercial benefits are realised, the benefits would be shared with the Treaty Trust Fund. But there are technologies available that are more advanced and help to make better varieties in a shorter duration, especially in developed countries where the private sector is a major contributor to the seed sector. The private sector is, therefore, interested in crops of commercial importance for more benefits. So there has to be a balance between accessing the germplasm from the multilateral system and the benefit flowing back,” added Brahmi.

Banner image: Farming horticulture in Karnataka, India. Photo by Asian Development Bank/Wikimedia Commons.