A landmark decision on the establishment of an Ad Hoc Technical Expert Group to realize farmers’ rights was recently taken by the seventh session of the Governing Body (GB7) of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA; also known as the ‘Seed Treaty’). There was stiff opposition from countries from the global North and the seed industry, who argued against that there was already a working group, under the Sustainable Use of Plant Genetic Resources for Food and Agriculture that was addressing farmers’ rights. However, this group has never seriously considered farmers’ rights since the Seed Treaty was adopted in 2004 more than 13 years ago. At its meeting in Rwanda from 30 October to 4 November 2017, delegates from many of ITPGRFA’s 144 contracting member states and over 40 observers – including farmers’ organisations and civil society organisations – came together to discuss the theme: ‘The 2030 Agenda for Sustainable Development and the Role of Plant Genetic Resources for Food and Agriculture’. Included on the agenda were: Enhancement of the Functioning of the Multilateral System for Access and Benefit Sharing, Farmers’ Rights, Enhancement of the Funding Strategy of the International Treaty and Global Information System; with a new contentious item on Digital Information Sequencing (DIS).
It cannot be emphasized enough that the realization of farmers’ rights forms the cornerstone of the implementation of the Seed Treaty. The realization of farmers’ rights is equally important for the Sustainable Development Goals adopted by governments in September 2015 under the 2030 Agenda for Sustainable Development – especially Goal No. 2: end hunger, achieve food security and improved nutrition, and promote sustainable agriculture. However, implementation of farmers’ rights has been extremely problematic. First, according to the Seed Treaty, the implementation rests with the contracting parties to the Treaty, and thus is neither obligatory nor clear-cut more broadly; and secondly, the current wave of seed and plant variety protection (PVP) laws and policies being pushed onto developing nations totally undermine farmers’ rights. The PVP laws routinely operationalize Article 15.2 of the International Union for the Protection of New Varieties of Plants (UPOV) 1991, which prohibits and/or severely restricts farmers from freely exchanging and selling farm-saved seeds and propagating material of protected varieties. Worse still, new seed policies in Africa criminalize, vilify and disregard farmers’ rights to sell, exchange and display uncertified seed. Just recently, a press release announced the Malawian government’s prohibition against exhibiting farmers’ own varieties at seed fairs. Some countries, like Tanzania and Kenya, are already members of UPOV 1991, while others, like Mozambique, have changed their laws to conform to UPOV 1991. These laws stand in sharp contrast to the contributions that farmers and their communities have made and continue to make towards conserving and developing plant genetic resources. In addition, traditional knowledge and farmers’ rights to participate equitably in benefit sharing and national decision-making about plant genetic resources have been limited over the years. New technologies that are emerging through DIS also pose imminent threats. Corporate ‘breeders’ are now able to use genetic engineering technologies, such as clustered regularly interspaced short palindromic repeats (CRISPR), to edit DNA, access genetic sequence data pertaining to genetic resources, convert this data back to DNA or RNA and use it in living organisms. Genetic sequence data can be accessed on the internet or in an e-mail, which means that it may no longer be necessary to access and exchange the physical genetic resources/biological materials. Crop traits can be accessed in this way, as well as genes that encode for active compound in medicinal plants, and used in the manufacture of pharmaceuticals. DSI gives rise to the possibility of accessing genetic resources without prior informed consent and in the absence of a benefit-sharing agreement, which would undermine several international agreements, including, in particular, the third objective of the Convention on Biological Diversity, the Nagoya Protocol on Access and Benefit Sharing, and the Seed Treaty. Indeed, we will go so far as to say that current benefit-sharing regimes may be rendered redundant as we go into the future, particularly those of the Nagoya Protocol and Seed Treaty. These concerns and many others have already been highlighted to the Secretary of the Convention on Biodiversity by the African Centre for Biodiversity and many other civil society organizations. Through a proposal by the African group, the GB7 adopted a resolution on DSI that was included in the ITPGRFA Multi-Year Programme of Work. The recommendation under the resolution is to consider the potential implications of the use of DSI at the eighth session of the Governing Body in 2019. In the meantime, the Secretariat will compile its views on the issue. This provides time for more research to understand the risks, and for farmers and civil society to strategize. Contributions from farmers’ and civil society organizations influenced the entire Seed Treaty process in Kigali, and the implementation of farmers’ rights took center stage in discussions. Farmers’ and civil society organizations sat through nerve-wracking, long and tiring negotiations, in small contact groups and the larger plenary sessions. The meeting finally decided to establish an Ad Hoc Technical Expert Group on Farmers’ Rights, which will develop guidance on farmers’ rights implementation for contracting parties. This is seen as a major victory for small-scale farmers and civil society organizations working to promote and defend the farmers’ rights enshrined in Article 9 of the Seed Treaty. The newly created Expert Group will comprise of up to five members designated by each region; up to three representatives of farmers’ organizations, particularly from the centers of origin of plant genetic resources and crop diversity; and up to three other stakeholders, including from the seed sector. It will have its own clear terms of reference and, among other things, will produce an inventory of national measures, best practices and lessons learned from the realisation of farmers’ rights and develop options for encouraging, guiding and promoting the realisation of farmers’ rights, as set out in Article 9 of the Treaty. The GB7 also made a recommendation to the Seed Treaty Secretariat that it invites contracting parties to consider reviewing or adjusting national measures that affect the realization of farmers’ rights, in particular regulations concerning variety release and seed distribution. This, too, is a step in the right direction and it is encouraging to note that the value of farmers’ varieties and farmer-managed seed systems are gaining a modicum of international recognition. All in all, the outcome of the meeting has gone a small way towards restoring some credibility to the Seed Treaty and its implementation, after years of tireless efforts by farmers, farmers’ organizations and civil society. It offers a glimmer of hope that the decisions made and further work will influence policy changes that are currently impeding farmers’ rights in Africa and elsewhere. The eighth session of the Governing Body will be held in 2019. In the meantime, farmer’s and civil society organizations must be on the lookout for any developments under the Seed Treaty and seize opportunities to participate, via consultations, on farmers’ rights, while at the same time trying to push at a national level for the adoption of some recommendations by contracting member states.