The International Treaty on Plants and Genetic Resources (ITPGRFA)

Adopted in 2001, the objectives of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) are “the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention on Biological Diversity, for sustainable agriculture and food

304 Nagoya Protocol, Article 2(d).

305 Nagoya Protocol, Articles 4.3, 12.

306 CBD, Article 16.5; Nagoya Protocol Article 4.1.

307 CBD, Article 22.1; Nagoya Protocol, Article 4.1.

308 Charles Lawson, Regulating Genetic Resources: Access and Benefit Sharing in International Law (Edward Elgar, 2012) 174.

security.”³⁰⁹ In achieving its goals, the ITPGRFA makes the following regulations: Farmer’s rights should be promoted and protected by national governments, including any traditional knowledge relevant to plant genetic resources for food and agriculture.³¹⁰ Farmers have the right to share in the benefits from genetic resources used for agriculture³¹¹ and to be involved in decision making in the area.³¹² The farmer’s right is strengthened by Article 9(3) ITPGRFA which that states that “Nothing in this Article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed.” This differs from the provisions of the UPOV and TRIPS, as neither agreement allows farmers to exchange seed preserved from their farms. Farmers' rights are vital for ensuring the conservation and sustainable use of plant genetic resources for food and agriculture and consequently for food security and sustainability.

A tension exists between plant breeders’ intellectual property rights, which adhere to a developed conception of property ownership, and the practices of local subsistence farmers, who often own plant varieties communally and produce food for their own subsistence. Intellectual property regimes tend to threaten traditional farmers’ ability to save and replant seeds, as well as to exchange seeds with other members of the community. Because subsistence farmers preserve and create new genetic diversity in the food supply through the process of saving, replanting, and exchanging seeds, IP regulations erode the ability of the farmers in West Africa to react to food security needs using diverse plant genetic resources by placing hindrances on these traditional farming activities. ³¹³ The concept of “farmers’ rights” was developed to protect these traditional

309 ITPGRFA, Article 1.1.

310 ITPGRFA Article 9.2(a).

311 ITPGRFA Article 9.2(b).

312 ITPGRFA Article 9.2(c).

313 Dutfield, Sharing the Benefits of Biodiversity: Access Regimes and Intellectual Property Rights” (1999), supra note 264; Dutfield, Sharing the Benefits of Biodiersity (2002), supra note 264.

farming practices in response to the expansion of IPR in plant varieties. ³¹⁴ Protecting farmers’

rights is essential to fighting poverty, hunger, and food insecurity in West Africa.³¹⁵Article 9 of the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) explicitly recognizes these rights. A detailed reference to the concept of farmers’ rights in international law can be found in Article 9.1 of ITPGRFA, which states that:

The Contracting Parties recognize the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centers of origin and crop diversity, have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world.

Article 9.2 of the ITPGRFA emphasizes that:

the responsibility for realizing farmers’ rights, as they relate to plant genetic resources for food and agriculture, rests with national governments. In accordance with their needs and priorities, each Contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote farmers’ rights, including:

(i) protection of traditional knowledge relevant to plant genetic resources for food and agriculture;

(ii) the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and (iii) the right to participate in making decisions, at the national level, on

matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.

The ITPGRFA goes further to protect traditional farming processes that allow for the free flow of genetic resources and knowledge by requiring that “Nothing in this Article shall be interpreted to

314 Lauren Winter, “Cultivating Farmers’ Rights: Reconciling Food Security, Indigenous Agriculture and TRIPS”

(2010) 43 Vand J. Transnat’l L., 223, at 225.

315 Callo-Concha et al, supra note 58; Oxfam, “Food Security, Agriculture, and Livelihoods”, 2016 Policy Article.

Online: < https://policy-practice.oxfamamerica.org/work/food-agriculture-livelihoods/> [accessed 13 March, 2018].

limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate.”³¹⁶ This recognition could be an argument in the discussion of customary law, but does not in itself establish any clear legal obligations or rights.³¹⁷

Article 9.2(a) of the ITPGRFA enshrines the right to protection of traditional knowledge relevant to plant genetic resources for food and agriculture, as a substantive right. This sets a clearer recognition than Article 8j of the CBD concerning traditional knowledge, as it refers specifically to traditional knowledge held by farmers and on plant genetic resources relevant to agriculture and food. However, Article 9.2 does not describe the manner in which traditional knowledge should be protected or the purpose for which it should be protected.³¹⁸

One drawback in applying farmers’ rights is that the language of TRIPS and the UPOV is far more obligatory and detailed than in most rules established in the CBD or the ITPGRFA. The words adopted in international treaties oblige the states to differing degrees and thus limit the national flexibility in adopting non-uniform frameworks. For example, the language in Article 9.2 of ITPGRFA states that Farmers’ Rights ‘should’ be adopted, ‘as appropriate’ and ‘subject to national legislation’. The language portrays farmers’ rights as something optional, which is subjective to national laws. In contrast, Article 2 of the 1991 UPOV Convention uses the word

‘shall’ to describe the protection of breeders’ rights, implying a compulsory obligation with specific reparations if overlooked. However, such etymological challenges can be overcome by specifically enacting the provisions of treaties like the ITPGRFA in the text of regional treaties.

316 Article 9.3 ITPGRFA.

317 UPOV Study, supra note 291, at 50.

318 Ibid, at 51.

The preamble of the ITPGRFA states that there is no hierarchy between the ITPGRFA and other treaties, such as CBD, UPOV or the TRIPS Agreement, in international law. If there is overlap or even conflict between two rules, other principles of legal harmonization need to be drawn upon. In such cases it is usually either ruled, that the more specific obligation prevails over the more general one (lex specialis derogat legi generali: “Special law repeals general laws.”);³¹⁹ or the more recent of the conflicting obligations prevails over the older one (Lex posterior generalis non derogat priori specialis: “A later, general law does not repeal an earlier, specialized law.”)³²⁰ In this particular case, ITPGRFA is more recent than UPOV 91, whereas UPOV 91 is probably more specific. This indicates that the ITPGRFA did not intend to alter the legal situation which was in place prior to its agreement. Which of two conflicting norms will prevail at the international level is not clear from the ITPGRFA preamble or from the UPOV Convention itself. Areas of overlap or conflict will need to be resolved through their interpretation under the VCLT and implementation in domestic legislation.³²¹

Considering the important role that balancing of interests’ plays in harnessing IP systems to advance food security, farmers’ rights protection provides a strong counter to PBRs and PVP laws that may interfere with traditional agricultural practices that remain important for food security in Africa. For example, the UPOV outlines four criteria as necessary for PVP, namely novelty, distinctness, uniformity and stability. A variety can be protected under UPOV-based PVP law as

319 A principle according to which a rule of lex specialis is deemed to apply notwithstanding contrary general principles of international law. The priority given to lex specialis is considered justified by the fact that the lex specialis is intended to apply in specific circumstances regardless of the rules applicable more generally where those circumstances may be absent. See Aaron X. Fellmeth & Maurice Horwitz, Guide to Latin in International Law (Oxford: Oxford University Press, 2011) [Fellmeth & Horwitz, Guide to Latin].

320 A principle according to which a rule of lex specialis that conflicts with a later general treaty provision or rule of customary law is not usually considered to be repealed or amended. The rationale for this rule is that, in adopting general rules, the international community should not be assumed to intend to expunge preexisting nuances of the law. See Fellmeth & Horwitz, Guide to Latin, supra note 324.

321 UPOV Study, supra note 291, at 49.

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 farming systems, thus hindering rather than promoting breeding progress for these conditions. It could also prevent farmers from protecting local varieties that are less uniform.³²²

Previous legal analysis of the farmers’ rights instituted by the ITPGRFA identifies the rights as having several facets which include: a right to protection of relevant traditional knowledge, a right to equitably participate in sharing benefits, a right to participate in decision-making, and rights to save, use, exchange and sell farm-saved seeds or propagating materials.³²³

The 1991 Act of the UPOV Convention does not promote any of the identified elements of farmers’ rights. Rather, these rights become restricted once a country adopts UPOV 91-based PVP law in its national legislation. The definition of a breeder in the 1991 Act of the UPOV Convention impedes plant breeders’ rights from being granted for varieties that originate from collective, informal breeding systems where no ‘legal person’ can be identified as the potential holder of a

322 UPOV Study, supra note 291, at 5.

323 UPOV Study, supra note 291, at 85.

PVP right. However, this type of traditional breeding used in subsistence farming, is important for many crops that ensure food and nutrition security in West African countries.³²⁴

In contrast, the ITPGRFA leaves it to the discretion of state parties to take measures that protect and promote farmers’ rights ‘as appropriate’ under national legislation, and in harmony with other existing treaty obligations of the members. Therefore, state parties to ITPGRFA have an obligation to address the issue of farmers’ rights, to take measures to protect and promote these rights, and in this context to define what should be regarded as an ‘appropriate’ level of protection of farmers’ rights in the country. ITPGRFA further refers to policies and legal measures.

Maintaining or developing policies that support the sustainable use of plant genetic resources, and reviewing existing policies are options mentioned. This could also include clarifying the legal status of customary norms within the legal system of a country.³²⁵

The more difficult legal question arises in specifying where farmers’ rights end, and where the rights of another legal person (such as the IPRs holder) start to become effective? The right to the biological material is a property right inherent to the physical samples; whereas IPRs targets another dimension of property, the immaterial one. Therefore, when exploring the relationship between farmers’ rights as a legal concept and others, like UPOV-based PVP systems, the point of departure is that the farmers’ right is a comprehensive right which flows subsequently from the ownership to the biological resources, in this case the seed, plants, and genetic resources. Any limitations to the right of the farmers must be justified. Hence, the discussion of the legal content of the farmers’ rights is relevant in all situations where the right of a farmer meets other legal

324 UPOV Study, supra note 291, at 57.

325 UPOV Study, supra note 291, at 86.

systems, including under the TRIPS patents, PBRs and PVP regulations; UPOV-based regional PVP treaties; and regional agricultural and seed laws.³²⁶

Article 10 of the ITPGRFA recognizes “the sovereign rights of States over their own plant genetic resources for food and agriculture, including that the authority to determine access to those resources rests with national governments and is subject to national legislation”.³²⁷ This sovereignty grants countries greater policy space, as independent owners of their genetic resources.

Article 12.3(a) allows access to genetic resources solely for utilization and conversation for research, breeding and training for food and agriculture. It does not provide access for chemical, pharmaceutical, and/or other non-feed/ industrial purposes. Article 12.3(d) prohibits the use of IPRs or other forms of rights to limit access to the plant genetic resources for food and agriculture, or their genetic parts or components, in the form received under multilateral IP agreements like TRIPS.