Food Security, Biological Diversity and Intellectual Property Rights

Muriel Lightbourne

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317134251
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This volume advances the claim that the FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) adopted in 2001 is the only existing international agreement with the potential to promote food security, conservation of biodiversity and equity. However, for germplasm-rich countries, national interests come into conflict with the global interest. This work shows that the pursuit of national interests is counterproductive when it comes to maintaining genetic resources, food-security and rent-seeking and that optimally, the coverage of the FAO Treaty should be widened to apply to all crops.

PART I
Crop Improvement and the Challenge of Food Security, Conservation and Equity

Chapter 1
Introduction

In fact, some collective goods … (such as the unpatentable benefits of pure research or the benefits of an international organization) can sometimes virtually cover the earth. (Mancur Olson, The Logic of Collective Action – A Theory of Groups and Organizations, Appendix to the 1971 edition, Schocken Paperback, pp. 170–1)

Agriculture is deemed to have appeared roughly 10,000 years ago, disrupting the existing local ecological balance,1 and allowing human population growth to take off.2 All societies did not give up pastoralism; however, agriculture gradually spread across the world. As explained by Jose Esquinas-Alcázar, one of the promoters of the FAO Treaty, ‘the process of domesticating plants and animals and the spread of agriculture were slow enough to allow a new equilibrium to emerge … Genetic diversity was maintained, and even increased during this long period; the heterogeneous varieties developed by farmers in each location became well-adapted to varying local conditions.’3

Clive Stannard explains the conditions of emergence of agriculture beautifully:

Some 10,000 years ago, agriculture began, with the Neolithic revolution. This was, in some ways, the most inventive time in human history. As Claude Lévi-Strauss used to say, we are still coasting on the Neolithic. In what the great Russian botanist, Nikolai Ivanovich Vavilov, called the ‘centres of origin’, the key plants on which we now depend for our survival were domesticated … From the beginning, human groups swapped their crops, and within their crops, their local varieties or ‘landraces’. Agriculture has always been based on access and exchange, not on exclusivity. Even at the most local level, farmers exchange seeds and breed exotic material into their crops, in order to avoid productivity declines.4

The repeated selection by farmers of wild plants altered the genotypes of these plants, ‘and substantially added value to them’, as revealed by Clive Stannard et al.5 This pattern, i.e. farmers developing landraces, is still prevalent in many developing countries, even where some features of modern agriculture can be found. However, since the aftermath of the Second World War, farmers in many developing and industrialized countries have become reliant upon private seed-processors and public breeders for their supply in quality seeds. Further, since the 1980s, private breeders (seed companies), and to a lesser extent, public agricultural research centres, have embraced the biotechnological revolution. Hence, since the Green Revolution and the advent of biotechnologies, the modern agricultural system has been based on genetically uniform high-yielding crop varieties. The sustainability of such a system is thus at stake, owing to the loss of genetic diversity that ensues. Esquinas-Alcázar shows that of the more than 300,000 vascular plants6 identified, roughly 7,000 species have been used to satisfy basic human needs. However, ‘[b]arely more than 150 species are now cultivated; most of mankind now lives off no more than 12 plant species.’7 In such conditions, access to genetic resources is vital, not only for traditional farmers, but also for industrial public and private breeders, in order to maintain some genetic variability.

Background to the Adoption of the FAO International Treaty

Historically, plant genetic resources ‘have been treated as an unlimited source of continuing benefits. They are in fact a limited resource.’8 Access to this resource also tends to be more and more hindered, for economic or legal reasons presented in the First Part. The foremost of the Green Revolution promoters, Dr Norman Borlaug, was reminding his audience during his 1970 Nobel Lecture that ‘fifty percent of the present world population is undernourished and that an even larger percentage, perhaps sixty-five percent, is malnourished.’9 Therefore, some overarching compromise is needed, based on shared values of food security, conservation and equity.

The Food and Agriculture Organization (FAO) of the United Nations is an intergovernmental organization with 183 member countries and one member organization, the European Community. Founded in 1945, its mandate is ‘to raise levels of nutrition and standards of living, to improve agricultural productivity, and to better the condition of rural populations.’10

The FAO administers numerous treaties dealing with food production or the management of natural resources used in agriculture. The latest to date, namely the International Treaty on Plant Genetic Resources for Food and Agriculture, supersedes the 1983 International Undertaking on Plant Genetic Resources (IUPGR). The IUPGR was a non-legally binding instrument, based on the assumption that plant genetic resources were the common heritage of mankind and should be freely exchanged. The rationale for adopting the IUPGR (by virtue of FAO Resolution 8/83) was that full advantage could be derived from plant genetic resources through an effective programme of plant breeding, so as to avoid erosion and loss of these resources. However, while most such resources in the form of wild plants and old land races are to be found in developing countries, training for plant identification and plant breeding are insufficient or even not available in many of those countries. Thus, ‘it is the responsibility of governments to undertake such activities as are needed to ensure the exploration, collection, conservation, maintenance, evaluation, documentation and exchange of plant genetic resources in the interest of all mankind …; and to ensure the equitable and unrestricted distribution of the benefits of plant breeding’ (Resolution 8/83).

Over the next decade, however, the generalization of bioprospecting and biotechnologies, assorted with a rising number of domestic legislations drastically curtailing access to genetic resources, and the use of intellectual property rights, lead to the recognition that a binding multilateral system of germplasm conservation and exchange was needed.

The surge in the use of intellectual property rights to protect plants, particularly through patents and plant variety rights, has raised concern that it jeopardizes exchange of seeds, upon which food security and crop improvement are widely considered to depend. However, modern techniques of plant breeding require increased sources of funding, and intellectual property rights are designed to allow private operators to recoup their investments in research on the development of new products such as plant varieties and other agricultural inputs.

Since the inclusion in 1988 of intellectual property in the scope of the Uruguay Round cycle of negotiations of the General Agreement on Tariffs and Trade, intellectual property rights have been reinforced. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which entered into force on 1 January 1995 and which constitutes Annex IC of the Marrakesh Treaty instituting the World Trade Organization, is the outcome of the Uruguay Round in this field. It defines minimum rights and incorporates the main provisions of the two main international conventions on industrial property and literary and artistic works, namely the Paris Convention and the Berne Convention. Interestingly, as Chapter 4 will show, the European Union wanted TRIPS to include the protection of new plant varieties, as these were not covered by the Paris Convention. The Convention for the Protection of New Varieties of Plants, known under its French acronym ‘UPOV’, specifically designed in the 1960s for the protection of plant varieties, counted only a few members at that time. The impact of both TRIPS and UPOV Convention will be addressed below. UPOV Convention, reinforced in 1991, does not allow for as much access to plant germplasm as it should because, while other breeders have free access to the germplasm, in most cases farmers do not have full freedom to replant and sell harvested seed.

The new conditions prevailing over the transfer of plant genetic resources since the Convention on Biological Diversity (CBD) was opened for signature in Rio de Janeiro, and entered into force in December 1993, will also be examined. One of the main principles set forth or reaffirmed by the CBD lies in the affirmation of sovereignty of member states over their natural resources. This conflicts with the common heritage principle as provided under the FAO International Undertaking. The latter places no restrictions on access to these resources, while the former allows governments to impose controls and conditions. However, this reversal can be explained by the fact that developing countries have realized the market value of by-products or processes using their biological resources, especially in the pharmaceutical industry. Nevertheless, the primary concern of the CBD was the conservation of genetic resources, in the face of the ongoing worldwide genetic erosion.

Thus, the need was felt to renegotiate the International Undertaking between 1993 and 2001, to put it in line with the CBD and the TRIPS agreement, and transform it into a legally binding instrument promoting the conservation and sustainable use of all plant genetic resources used for food and agriculture. For some of these resources, the International Treaty goes further by setting forth a multilateral system of exchange and benefit-sharing. The International Treaty entered into force on 29 June 2004, 90 days after the 40th ratification.11

The Shift in the FAO Approach to the Status of Plant Genetic Resources

In the 1970s, the balance of benefits deriving from the so-called ‘Columbian Exchange’12 was the subject of acrimonious debates. The expression of ‘Columbian Exchange’ refers to the flow of crops between newly discovered territories in America and Europe and colonies in Africa and Asia, and to the constitution of germplasm collections by colonial powers.

The debate effectively comprised two parts, involving equity and conservation. Cary Fowler frames the first as a question: ‘[h]ave, for example, the “grain rich” countries benefited disproportionately from the acquisition of genetic resources from the “gene rich” countries?’13

Broad Political Farmers’ Rights and Plant Genetic Resources as a ‘Common Heritage of Mankind’

On the conservation front, the first initiative to streamline gene banks, conservation and distribution policies was launched by the FAO in 1961.14 A third such meeting in 1973 defined sampling strategies for ex situ collections, in preference to in situ conservation. In parallel, the Rockefeller Foundation financed the first ex situ collection of wheat and maize germplasm, and established the Consultative Group on International Agricultural Research (CGIAR) in 1971. The FAO, the United Nations Development Programme, the United Nations Environment Programme and the World Bank now participate in the financing of the CGIAR, which federates 16 collections and research centres – some of which, like the International Rice Research Institute (IRRI), created in 1960, the International Centre for the Improvement of Maize and Wheat (CIMMYT) in 1966, or the International Center for Tropical Agriculture (CIAT) in 1967, predated the CGIAR. Countries freely contribute genetic resources to the CGIAR’s centres and anyone can ask for free samples for research or breeding programmes. This resulted from a suggestion made to the CGIAR Technical Adviser Committee (TAC) during a meeting in Beltsville, Maryland, in 1972. This plan embraced several other proposals, such as the inclusion of new gene banks, the West African Rice Development Association (WARDA, 1971), the International ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Tables
• List of Cases
• List of Acronyms
• Acknowledgements
• PART I: CROP IMPROVEMENT AND THE CHALLENGE OF FOOD SECURITY, CONSERVATION AND EQUITY
• PART II: THE FAO INTERNATIONAL TREATY – A NECESSARY ONE?
• Glossary
• Bibliography
• Index