Executive summary

This study explores the relations between the Inter- national Convention for the Protection of New Varieties of Plants (UPOV Convention), Farmers’ Rights as enshrined in the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), and human rights, particularly the right to adequate food. These three legal frameworks, though apparently referring to different fields of law, have in common that they are all related to the issue of seed and to rules that concern access to seed. The interrelations among these legal frameworks, including areas of overlap and of potential conflict, are an important topic in current political processes and debates.

The study focuses on the questions of whether the regulations of the 1991 Act of the UPOV Convention (1) support or oppose the right to food and other human rights; (2) advance or hinder the implementation of Farmers’ Rights as required by the ITPGRFA; and (3) whether they are suitable for the agricultural conditions in developing countries. The study does not provide any judgments on other issues, e.g. advantages or disadvantages of plant variety protection (PVP) laws established based on the UPOV Convention compared with patent laws, or potential benefits for national economies or private investors that may arise from membership in UPOV.

The study relied on a desk review of written documents, including academic and non-academic contributions. In order to clarify the relation between the rules of the UPOV Convention and Farmers’ Rights, emphasis was put on assessing the legal con- tent of these rights. Furthermore, stakeholders from governmental and non-governmental organisations as well as the private sector were invited to contribute via expert interviews, written comments or participation in a discussion event.

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In many developing countries, a farmer-managed breeding system continues to exist that relies on traditional knowledge and the farmers’ practices of freely saving, using and exchanging seed. This sys- tem has some points of contact with the scientific breeding system if protected varieties get introduced into the farmer-managed system, and vice versa. Each of these breeding systems can deliver different products and impacts, and they often focus on different crops and conditions.

Farmer-managed seed systems are the most important source of seed used by farmers in developing countries. The seed price is usually much lower than certified seed from the formal sector. The higher price of certified seed is mainly due to the higher production and distribution cost, with breeders’ licences for protected varieties accounting for 5 to 10 per cent of the final seed price. However, PVP laws can interfere with these farmer-managed seed systems in various ways, and affect different groups of people differently, e.g. with regard to their possibilities for access to seed of protected varieties.

Typically, input-intensive agricultural production systems are found in developing countries alongside low-input systems, where biotic and abiotic constraints render standard approaches to agricultural intensification uneconomic. ‘Improved’ varieties from the formal breeding sector do not generally perform better than local varieties under such conditions. The associated costs, benefits and risks can differ for various sets of conditions and groups of farmers. Depending on the situation of each country, the distribution of high- and low-input conditions for farming can vary widely; however, it is estimated that at least 40 to 50 per cent of all agricultural lands in developing countries qualify as ‘marginal’ with regard to the production conditions faced by the farmers.

The assessment of how UPOV-based PVP laws support or oppose human rights focuses on (1) the human right to adequate food; (2) the human right to enjoy the benefits of scientific progress and its applications; (3) the rights of indigenous peoples with regard to genetic resources; and (4) the human rights principles.

The first two rights are both enshrined in the Inter- national Covenant on Economic, Social and Cultural Rights (ICESCR) and are legally binding rights for the 164 state parties to this treaty. States are the primary duty bearers and have obligations not only towards their own citizens, but also towards citizens of other countries, e.g. as members of international organisations, or in their role as donors. If competencies are transferred, e.g. to inter-governmental organisations, they remain responsible for their human rights obligations being fulfilled. They have to ensure constant efforts towards the realisation of human rights under ICESCR, to regularly report on the progress made, and to avoid any retrogressive measures.

The right to adequate food implies a comprehensive notion of food and nutrition security that goes beyond being free from hunger. It implies that people need to have access either to productive resources to produce their own food, or to sufficient income that enables them to access food. The right to food does not prescribe any particular agricultural policies; however, in signatory states to the ICESCR, any policies affecting food and nutrition security should be assessed for their human rights impacts, and implemented based on human rights standards and principles. UPOV-based PVP laws involve risks for the realisation of the right to food, which can be more or less pronounced depending on the situation in each country. Such risks need to be assessed prior to implementation; if risks are identified, states have to take appropriate measures to ensure that human rights are not violated. Whether or not UPOV-based PVP laws are in harmony with the right to food depends on their implemen tation into national law, along with other measures taken by a state, e.g. to ensure that vulnerable groups have access to productive resources (e.g. seed) and income.

Moreover, states have to ensure that everyone can have access to scientific progress and its applications, e.g. new varieties of plants. When implementing PVP laws that potentially restrict farmers’ access to seed of protected varieties, they have a responsibility to enable them to access seed of plant varieties that are bred based on scientific knowledge and related applications. State parties to ICESCR have to ensure that scientific breeding progress is directed towards resource-poor farmers and vulnerable groups that may be insufficiently addressed by existing breeding initiatives.

The rights of indigenous peoples have been declared under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which is however not a legally binding instrument under international law. It represents a development of legal norms and reflects the commitment of all UN member states to move in this direction. UNDRIP explicitly mentions the rights that indigenous peoples have with regard to the genetic resources they use, as well as to maintaining customary practices and institutions. Before adopting or changing policies that could potentially affect the rights of indigenous peoples, it has to be clarified whether such peoples are present in a state’s territories. UNDRIP calls for Free Prior and Informed

Consent (FPIC) as a standard procedure that should be followed. Additionally, for the signatory states to International Labour Organization (ILO) Convention No. 169, there is a legally binding obligation to establish dialogue and appropriate processes of consultation with indigenous and tribal peoples through their representative institutions for all matters that concern them directly.

The human rights principles should be followed in all processes that relate to human rights. They entail the principles of equality and non-discrimination, participation and inclusion, as well as account- ability and rule of law. They are legally enforceable in many cases, depending on the legal situation in each country and the issue in question. In general, human rights rely on appropriate legal frameworks, processes and institutions for their realisation; the human rights principles are closely related to key attributes of ‘good governance’.

Regarding the relation between the UPOV Convention and the Farmers’ Rights enshrined in ITPGRFA, it is important to differentiate between different levels of law. Whereas the UPOV Convention and ITPGRFA are both treaties in international law, the practical realisation of the rights of plant breeders and Farmers’ Rights happens within the national jurisdiction of each country. ITPGRFA leaves it largely to the discretion of states how Farmers’ Rights are implemented in their national law. This differs from the UPOV system, where the national PVP law of a country is reviewed and approved prior to granting membership; the UPOV system thus nar- rows the possibilities of states to adapt PVP laws to individual countries’ needs. Moreover, the Explana- tory Notes provided by UPOV further limit flexibility in implementing national PVP laws, as they put for- ward a particular interpretation of issues that may be important in practice.

Farmers’ Rights as established in Article 9 of ITPGRFA include the following elements: the right to protection of relevant traditional knowledge; the right to participate in sharing benefits from the use of plant genetic resources; the right to participate in decision-making; and the right to save, use, exchange and sell farm-saved seeds or other propagating materials. However, the wording used in the text of ITPGRFA leaves flexibility for states as to how to implement Farmers’ Rights in their national legislation in a way that is found appropriate. At the same time it includes a clear obligation to take steps for protecting and promoting Farmers’ Rights.

In spite of the recognition of farmers’ contributions to the past, present and future development of plant genetic resources in the preamble and the reference made to Farmers’ Rights in Article 9 of ITPGRFA, this does not provide a firm legal basis sufficient to classify Farmers’ Rights as international customary law. However, if customary law is found to exist in a country with regard to farmers’ seed-related practices, its relation to other rights needs to be clarified based on the national legal system of that country.

Generally, farmers can be said to have an implicit right concerning their genetic resources, including seed and planting material, unless it is challenged by other law, e.g. PVP law. UPOV-based PVP laws
set four criteria as necessary requirements for a variety to qualify for protection: (1) novelty; (2) distinctness; (3) uniformity; and (4) stability. A variety can be protected under UPOV-based PVP law as a ‘novel’ variety if it has not been sold or marketed as such with its defining characteristic; this means that well-known and used farmers’ varieties could be developed into protected varieties if some breeding activity has been involved. This exposes the farmers to limitations regarding their previous rights, such as to freely save, use, exchange and sell seed of this variety. In cases where there is no system that allows for registration of existing farmer varieties, the assessment of ‘distinctness’ cannot be done in a reasonable manner, as the diversity of characteristics of farmer varieties in use will be largely unknown. Moreover, a strictly applied ‘uniformity’ criterion could become a challenge for protecting varieties targeting stress-prone environments and low-input farm ing systems, thus hindering rather than promoting breeding progress for these conditions. It could also prevent farmers from protecting local varieties that are less uniform. The ‘stability’ criterion is less problematic with regard to Farmers’ Rights. However, since the UPOV system does not foresee that any other criteria are required for granting a plant breeders’ right, this system cannot be used to effectively control whether plant genetic material was legally obtained by a breeder. Hence, UPOV-based PVP law does not provide for legal certainty in this regard.

The scope of plant breeder’s rights in UPOV-based PVP law is broadly defined and covers harvested seed, e.g. in farmers’ fields and on farm. This scope of protection is a challenge to those elements of Farmers’ Rights that relate to farmers’ practices for use of farm-saved seeds or propagating materials in cases where protected varieties are concerned. This broad main rule for protection provides for a strong legal situation for the owner of a PVP right, in spite of possible exceptions. Possible exceptions concern acts done ‘privately and for non-commercial purposes’ (compulsory); and within limits and subject to safeguarding the legitimate interest of breeders concerning the farmers’ use of seed harvested from their own landholdings for re-sowing on these same holdings (optional). These exceptions are nar- rowly defined, as they prohibit the farmers’ custom- ary practices of exchanging and selling seed from their own harvest, which are important elements of farmer-managed breeding and seed systems. Moreo- ver, the use of protected varieties by farmers for their own breeding activities can be subject to legal uncertainty, as breeding and seed production cannot be clearly separated. It may not be easy in all cases to clarify if a variety bred by a farmer is considered to be sufficiently distinct, or if it is ‘essentially derived’ from a protected variety.

Other challenges to Farmers’ Rights derive from supra-national implementation of UPOV-based PVP laws that impede effective participation of farmers and other stakeholders. Moreover, if plant genetic resources are collected from farmers’ fields and made available under the multilateral system (MLS), there may be challenges regarding Farmers’ Rights to participate in decision-making as well as benefit- sharing. Lastly, restrictive seed legislation can render s illegal the farmers’ customary practices of exchang- ing and selling uncertified farm-saved seed.

Alternative approaches to developing TRIPS-com- pliant sui generis PVP laws exist already in practice. Additionally, ‘model laws’ or elements of these have been suggested by academics and civil society organizations. Depending on the conditions in the breeding and seed sector of each country, these alternatives can facilitate pluralistic approaches to developing breeding and seed systems in developing countries, and provide differentiated options to implement national PVP laws in harmony with other treaty obligations and policy goals.

The study results in 20 recommendations that address (1) the possibilities to harmonise the goals and obligations of different treaties within national PVP laws; (2) the progressive realisation of human rights; (3) the realisation of Farmers’ Rights; and (4) the agricultural conditions in developing countries.

Main recommendations are:

• Developing countries, prior to establishing national PVP laws, should clarify the legal requirements for a process involving rights holders in their country, e.g. farmers and indigenous peoples.
• The German government as a state party to the ICESCR and member of the UN could provide assistance to developing countries in designing human-rights based processes for establishing PVP laws.
• Governments of developing countries should clarify the objectives of their national PVP law and carefully consider how different PVP laws could help address these objectives. This includes ensuring how all farmers can access seed of protected varieties in practice, and how scientific breeding progress can be directed towards the needs of vulnerable groups.
• Prior to adopting national PVP laws, governments of developing countries should assess whether indigenous peoples live in their territories, and seek their consent through appropriate consultation processes.
• Developing countries that have not yet joined UPOV should consider opting for alternative sui generis systems of PVP that allow for more flexibility in meeting the obligations of different treaties, for balancing the interests of diverse actors, and for protecting and promoting Farmers’ Rights, compared with the UPOV system.
• Common standards for regional harmonization of PVP laws can also be agreed upon based on a sui generis approach, should this be found to be of shared interest.
• UPOV members may consider the diversity of their present and potential new members’ agricultural conditions in the further development of rules and their interpretation, and con- sider allowing for more flexibility in designing national PVP laws, e.g. with regard to exceptions for small-scale farmers and indigenous peoples. They may also consider changes in the process of granting membership, so that it is easier for new members to comply with the requirements of different treaties.
• Research needs were identified with regard to empirical studies on breeding and seed systems in developing countries; to human rights impact assessments; as well as to legal aspects of alternative sui generis PVP laws.
• In those developing countries that have implemented UPOV 91 in their national legislation, research is needed to better understand the effects of PVP laws on human rights, Farmers’ Rights and agricultural biodiversity.
• The German government could consider funding such research, through its own initiatives or as a member of European and international programmes.