Fair and Equitable Benefit-Sharing in Agriculture (Open Access)

Reinventing Agrarian Justice

Elsa Tsioumani

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429582288
• Edition: 1
• Topic: Betriebswirtschaft
• Subtopic: Agribusiness

This book explores the emergence and development of the legal concept of fair and equitable benefit-sharing, and its application in agriculture.

Developed in the 1990s, the concept of fair and equitable benefit-sharing has been deployed in an ever-wider variety of international instruments, including those on biodiversity, climate change and human rights. A lack of clarity persists, however, on what fair and equitable benefit-sharing requires and entails, and whether its implementation supports or eventually undermines equity and justice. This book examines these questions in the area of land, food and agriculture, addressing for the first time several instances of the agricultural production chain, including research and development, land governance and land use and access to markets. It identifies challenges regarding implementation of the concept as enshrined in environmental treaties and soft-law instruments, with a focus on the International Treaty on Plant Genetic Resources for Food and Agriculture, the Voluntary Guidelines on Tenure and the UN Declaration on the Rights of Peasants. It investigates its role, enabling conditions and limitations, in a contradictory policy context involving environmental, food security and human rights objectives but also a growing web of multilateral and bilateral trade and investment agreements. Linking international law research with a socio-legal analysis, the book addresses four grassroots examples, which offer ideas for institutional and legal innovation from the local to the global level.

This interdisciplinary title will be of great interest to students and scholars of international environmental law, agriculture, land law, development studies andglobal governance, as well as policymakers and practitioners working in these fields.

"The Open Access version of this book, available at https://doi.org/10.4324/9780429198304, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license."

1 Fair and equitable benefit-sharing in agricultural research and development

Introduction

In this chapter, I first explore the emergence of the concept of fair and equitable benefit-sharing in the context of the evolving principles of governance of agricultural biodiversity. I then analyse the structure and application of the Multilateral System (MLS) of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) for access to, and fair and equitable benefit-sharing (ABS) from the use of, plant genetic resources. I place this analysis in the context of intellectual property rights (IPR) and human rights instruments, starting from the lack of benefit-sharing applications in IPR instruments and exploring related human rights concerns and discourses related to political and ethical considerations. The result showcases a complex legal and policy landscape of conflicting objectives, rights and policies. To illustrate this complex landscape, I use a case study: the case of patent applications submitted by the International Rice Research Institute on breeding methods associated with a rice gene isolated in an Indonesian farmers’ variety. This exploration will eventually assist in assessing the potential of the concept of fair and equitable benefit-sharing in promoting and operationalizing fairness and equity in agricultural research and development.

The evolution of the global governance of plant genetic resources

Informal seed systems and public agricultural research

Since the earliest crop domestications, agricultural development has been based on farmers’ traditional varieties, developed through collective systems of innovation and conservation through seed saving, sharing and use (Halewood et al. 2013a). Exchanges were regulated on a customary basis, largely at the community level, and included both informal ones and more organized systems, such as seed fairs and community seed banks (Garine et al. 2018).

The literature on the historic events which led to the global redistribution of plant genetic resources for food and agriculture (PGRFA) and the emergence of international regulation is vast, so I make a very schematic reference. Colonization resulted in a vast flow of agricultural species from the Americas to Europe and from South to North. Ex situ facilities were established in the North, such as botanic gardens and genebanks, which stored samples of agricultural varieties coming mainly from developing countries, the centres of domestication of major agricultural crops. These samples provided the basis for the high-yielding varieties of crops developed during the green revolution in the twentieth century.

The green revolution dramatically transformed agriculture through scientific and technological advances, and led to increased food production at least in some regions. It also marked the emergence of professional plant breeding and the commercial seed sector, leading to the marginalization of customary farmer practices and varieties and traditional seed systems, in favour of scientific, public or corporate-led research, in cases putting at risk the livelihoods of smallholder farmers (Tsioumani et al. 2016; De Schutter 2009; Mooney 1998). Such socio-economic impacts were accompanied by environmental ones. The spread of monocultures of high-yielding, genetically uniform crop varieties led to the erosion of agricultural biodiversity, making agricultural production vulnerable in the face of threats such as pests and extreme environmental conditions (FAO 1993; Dahlberg 1979; Glaeser 2011).

It was the need for continued exchanges of PGRFA samples to develop the varieties to fuel the green revolution, as well as the realization of the risks of genetic erosion, that provided the rationale for the international regulation of PGRFA (Halewood et al. 2013a; Scarascia-Mugnozza and Perrino 2002). The first technical conference, which placed PGRFA on the international agenda, was held by the Food and Agriculture Organization of the UN (FAO) in 1967. Following arduous debates, the conference expressed preference for ex situ conservation methods (thus conservation of samples in genebanks) over on-farm management, referring to the sustainable management of local diversity by farmers as part of their agricultural practices (Maxted et al. 2011). However, it reached no agreement with regard to coordinated actions (Pistorius 1997; Halewood et al. 2013a).

The first institutionalized international structure on PGRFA conservation and management, the Consultative Group on International Agricultural Research (CGIAR), was created in 1971 as a result of a World Bank initiative, and eventually gathered several international agricultural research centres under its auspices, with the co-sponsorship of FAO and the UN Development Programme (UNDP) (Özgediz 2012). With a focus on ex situ conservation of crops of agro-economic value, the CGIAR centres stored a large percentage of the world’s PGRFA, which under various circumstances had flowed from the developing to the developed world (Fowler 1994; Fowler et al. 2000; Chiarolla 2012).

At the time, international law was silent with respect to the conditions for access to and use of PGRFA, both in situ (on-farm and in nature in general) and in the CGIAR system; similarly, most national legislations did not regulate access to PGRFA, either in situ or in genebanks. PGRFA were thus considered to be in the public domain, available to anyone for any purpose, without benefit-sharing or conservation obligations (Halewood et al. 2013a). In turn, most agricultural research at the time was conducted by public institutions, and the results of the work were shared (Rose 2004). The CGIAR committed to the free circulation of both original and improved material and the full sharing of information (Byerlee and Dubin 2009), with the belief that the benefits of such a system would flow to humanity at large in the form of agricultural development and scientific progress. Data indicates that developing countries were the main recipients of germplasm samples from the CGIAR centres and thus beneficiaries of the system (Fowler et al. 2000).

The CGIAR approach can be criticized for its focus on ex situ conservation, which, apart from its own technical problems (Louafi et al. 2013), resulted in marginalizing on-farm management, thus farmers’ knowledge, varieties and practices, and in promoting monocultures in the name of increased productivity. In addition, what remains into question (and partly addressed later in this book) is whether such a narrow, centralized model of agricultural innovation based on a Western type of agricultural knowledge and development can fit the needs of all users, particularly smallholders, and whether it can promote localized objectives related to livelihoods and biodiversity conservation. At the time, though, what eventually challenged the CGIAR practices was the growing application of intellectual property rights (IPRs) and the gradual privatization of agricultural research and development.

The first wave of privatization

The introduction and continuing strengthening of IPR protection for modern agricultural varieties catalyzed multiple changes in the course of international regulation of PGRFA. IPRs are supposed to foster and reward creativity and innovation, including to address global challenges such as food security. The IPRs mainly in use in the field of agricultural innovation are plant breeders’ rights (PBRs) and patents. I briefly introduce them below, in turn.

PBRs were established at the time of the green revolution by the 1961 International Convention for the Protection of New Varieties of Plants (UPOV Convention), later amended in 1972, 1978 and 1991. According to its mission statement, the International Union for the Protection of New Varieties of Plants (UPOV), established by the UPOV Convention, aimed to encourage the development of new varieties of plants for the benefit of society. PBRs provide protection to novel (in terms of prior commercialization), distinct, uniform and stable plant varieties. These standards were specifically developed to support protection of modern varieties. Farmers’ varieties are generally neither uniform nor stable, and the existing ones (those used for the development of modern varieties) do not satisfy the novelty requirement and are considered as ‘prior art’ within the public domain. In addition, the uniformity criterion in particular has been subject to criticism because it reinforces trends towards genetic uniformity, and a higher degree of genetic vulnerability (Silva Repetto and Cavalcanti 2000).

The 1978 version of the UPOV Convention (UPOV 78) provided for two exemptions to plant variety protection, aiming to guarantee the continued exchange of material for further research and to protect smallholder farmers’ livelihoods: the breeders’ exception and the farmers’ privilege. The breeders’ exception permitted the use of protected varieties as the source material of further breeding; the farmers’ privilege allowed the re-use of saved seeds by subsistence farmers. However, as examined below, these exemptions were restricted in the 1991 version of the UPOV Convention (UPOV 91). UPOV membership was further boosted with the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) by the World Trade Organization (WTO) in 1994, and later through bilateral and multilateral free-trade agreements, as addressed below.

Patents in the field of plant breeding were first allowed through the 1930 US Plant Patent Act. They gradually took off following the 1980 US Supreme Court case of Diamond v. Chakrabarty,¹ which opened the way to the patenting of genetically modified organisms (Kevles 1994; Carolan 2010; Jasanoff 2001) and expanded dramatically following adoption of the TRIPS Agreement and the breakthrough of modern biotechnology in the 1990s, although they remain controversial from a political and ethical point of view, as examined below. Protecting plant-derived innovations under patent regimes requires an applicant to demonstrate novelty, an inventive step and the potential for industrial application. Farmer varieties obviously do not satisfy these requirements. Patents provide the strongest form of intellectual property protection, in the sense that they normally allow the patent holder to exercise the greatest control over the use of patented material. Thus, exceptions aiming to protect farmers’ and breeders’ activities are usually more limited under patent law than under PBR legislation. At the moment, to my knowledge, patents on conventional plant varieties are only allowed in the USA, Japan, Australia and the Republic of Korea.

Privatization was a major attack to the previous treatment of PGRFA and related knowledge as public goods. In the words of Charlotte Hess, ‘IPRs appear to slow the free flow of germplasm exchange, slow the diffusion of new knowledge, upset the balance between basic and applied research, and erode scientific integrity’ (Hess 1993: 128), posing obstacles to public research. Alongside concerns regarding commodification of PGRFA, the beginning of privatization of genetic resources resulted in a major asymmetry between the stewards of these resources and those who benefitted more from their use, arguably private companies in developed countries. Farmers’ varieties and PGRFA originating in biodiversity-rich developing countries were to be exchanged freely as the basis for development of modern varieties, while the availability of the resulting varieties was restricted by IPRs (Mooney 1983: 24). This was considered as unfair and inequitable or at least morally unjust from the perspective of provider countries and farmers, and was at the core of the tensions that challenged CGIAR practices. These concerns have been exacerbated by the (mis)application of the IPR system, dubbed as ‘biopiracy’.² Patents have been granted on genetic resources obtained from developing countries, often without the knowledge and consent of the country of origin and hardly any demonstration of an inventive step.

There has been extensive documentation of IPRs being sought over resources in the form they are found in nature or in farmers’ fields, without further improvement, or on products based on plant materials and knowledge developed and used by indigenous peoples and local communities. Examples concern the Mayocoba (or Enola) bean, quinoa, neem tree and turmeric (Mooney 1998; Aoki 1998). In the case of the Mayocoba bean, for example, a US patent was granted on a bean variety widely cultivated in Mexico, originating from the CGIAR centres, which it took nine years of litigation to revoke (CIAT 2009). There are no specific standards of what is considered a ‘novelty’ or an ‘invention’ for the purpose of patent registration. Assessment of the level of inventive step required to grant a patent is crucial to determine the extent to which patents on genetic resources may be lawful or not. In addition, a basic issue has been whether isolated genes and other biological materials may be deemed ‘invented’ and thus eligible for patent protection. Approaches differ among national jurisdictions, along with debates on ethical considerations (Nuffield Council on Bioethics 2002). From a global perspective, these points have increased significance.

In the context of rising tensions about the potential impact of IPRs on the legal status of the CGIAR collections, the need for some form of legal arrangement regarding access to and use of samples from these collections was acknowledged. This resulted in the adoption of the International Undertaking on Plant Genetic Resources for Food and Agriculture, examined in the next section.

The attempt for a common heritage approach

Adopted by the FAO Conference in 1983, the non-binding International Undertaking (IU) attempted to apply the principle of common heritage to PGRFA, declaring that ‘plant genetic resources are a heritage of mankind and consequently should be available without restriction’ (IU Art. 1). Significantly, the principle of common heritage would cover all plant genetic resources, including ‘newly developed varieties’ (Art. 2(1)). The initial strategic and legal response was thus to make all PGRFA, including improved varieties, freely accessible to farmers and breeders around the world (Kloppenburg 2014; Aoki 2009), attempting to bypass IPRs. This – retrospectively radical – approach can be explained in the light of the asymmetry introduced by IPRs: the main problem was not that seed companies were using PGRFA for free, but that they were restricting access to the improved varieties that, as a matter of reciprocity, ought to have been shared.

The ‘common heritage of mankind’ is an ethical concept and (controversial) international law principle establishing that some spaces and resources belong to all humanity and are available for everyone’s use and benefit, taking into account future generations and the needs of developing countries for sustainable development (Taylor 2012). Application of the concept in the framework established by the Undertaking sought to benefit humanity as a whole, and ‘to support major increases in agricultural production, especially in developing countries’ (IU Art. 7(h)(ii)). Distribution of the benefits was left to national governments’ responsibility, and no mechanism was established to address the needs of specific fractions of humanity, importantly the most vulnerable or developing countries less equipped for agricultural...

Table of contents

• Cover
• Half Title
• Series
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Introduction
• 1 Fair and equitable benefit-sharing in agricultural research and development
• 2 Fair and equitable benefit-sharing in land governance for sustainable agriculture
• 3 Moving beyond fair and equitable benefit-sharing
• 4 Exploring grassroots initiatives from the seed to the landscape
• 5 Conclusions and a research agenda
• Index