SUBSISTENCE
FARMERS RIGHTS VERSUS GENETICALLY MODIFIED SEEDS: FOCUSING ON DEVELOPING
COUNTRIES.
ABSTRACT
Before the existence of science and technology,
farmers and local communities have and continue to develop knowledge based on
the environment in which they find themselves, using their know-how to improve
seeds without the use of any technology. Pertinent to farmers is their ability
to save, exchange, sell and replant seeds. Hence, this study makes reasonable inference that farmers rights to seed are
inherent and paramount to developing countries in order to sustain their
livelihood, protect their rights and prevent the extinction of seeds. The study
also examines how the introduction of biotechnology particularly Genetically Modified
(GM) seeds implicate on these inherent rights
in developing countries.
1.
INTRODUCTION
“Because
biotechnology is such a revolutionary science, and has spawned such a powerful
industry, it has great potential to reshape the world around us. It is already
changing agriculture and what many of us eat. Any major mistakes could lead to
tragic and perhaps permanent changes in the natural world. For these reasons,
future generations are likely to look back to our time and either thank us or curse us for what we do, or don’t do about GMOs and biosafety. Doing
the right thing is not simple”[1].
Biotechnology has great potential
to reshape the world around us in all sectors, therefore, consistent monitoring
and evaluation of all possible impacts which could result from the use of
biotechnology should be mapped out. The international Treaty on Plant Genetic
Resources for Food and Agriculture (ITPGRFA) recognises farmers rights to use,
save, exchange and sell seeds. The introduction of GM seeds hinders the ability
of farmers to exercise these rights. The
intention of this study is to establish how genetically-modified seeds
implicate on farmers inherent rights as provided for under the ITPGRFA.
Farmers rights are very crucial to
developing countries to ensure food security for both the present and future
generations. Farmers throughout the world are responsible for the development of vast genetic diversity resources
through keen observation and intelligence[2]. Common to all farming
communities across the world is the practice of sharing knowledge and resources
relating to planting and harvesting mechanisms, perhaps the most important of
all is seed sharing[3].
Evidently, farmers have made and will continue to make a significant contribution to seed conservation
and development of plant genetic resources which constitute the basis of food
and agricultural production throughout the world[4]. Over the millennia, the
processes of farmer experimentation led to the domestication of an ever wider
range of plants to meet specific needs, preferences, and environmental
conditions. The result was thousands of different and genetically unique plant
varieties cultivated in farming systems[5]. True, seeds express the
earth’s intelligence and the intelligence of farming communities down the ages,
GM seeds seem to express the intelligence of technology using seeds traits mended
by farmers. Agriculture began with the selection and breeding of wild grasses
which was the precursors of modern staples such as wheat, rice, and maize[6]. Through these mechanisms
human actions have modified crop plants and animals over thousands of years
before there was any scientific understanding of genetics, farmers selected
seeds for desirable traits such as shorter growing season, larger fruit and
seeds, increased resistance to pests and diseases, higher nutritional content,
and better adaptation to local conditions[7].
The introduction of biotechnology and particularly,
the commercialization of GM seeds landmarked heated debates. While proponents
of GM seeds claim the desirability of the traits embodied in GM seeds to developing countries as a means to improve
outputs of small-scale subsistence farmers, the ability to introduce new plant
varieties able to withstand drought, pests, herbicides, diseases, cold, and
salinity compared to conventional crops and germplasms. Opponents of GM seeds allege
harmful effects of GMOs to the environment, with high risk of human health
issues as well as high risk to cause extinction of traditional seeds[8]. This notwithstanding, the
study will critically analyse the implication that GM seeds have on farmer’s
rights, it will demonstrate advocacy tools for realising farmers inherent
rights, attempt to sculpt reasons on how
farmers rights shape the seed industry in developing countries by examining
each inherent right, highlighting their importance and finally, explore options
that could realise these inherent rights.
True, legal research is criticised for its inability
to pragmatically elucidate the nature of its finding to other disciplines[9].
In as much the same way that the use of an explicit methodology confers
legitimacy in scientific research, credibility within legal scholarship is, therefore, dependent on the researcher’s
work demonstration and understanding as well as adherence to the accepted
conventions and norms of its discourse[10].
The methodology used by this study is a policy legal inquiry approach, done
through a desktop research by reviewing e-books, online journals, scholarly articles, newsletters and reports
produced by Non-Profit Organizations (NGOs), treaties and legal documents
agreed upon by the international community and case laws to highlight the
chronicle of farmer’s rights and the regulation of GM seeds in developing
countries.
In a nutshell, the recommendations
produced by this research are two level, they are as follows: (a) internationally, (i) a definition on farmers
rights be agreed upon; (b) the amendment of the 1991 Act International Union
for the Protection of Plant Variety (UPOV) in order to ensure protection of
farmer’s rights (iii) the development of
universal guidelines on handling GMO’s. (b) Nationally, (iv) Developing
countries should impose a moratorium on GM seeds (v) declaring food security as
a national security issue, this will allow the use of their flexibilities under
the International Treaty Related Aspects of Intellectual Property Rights
(TRIPS) agreement.
2.
THE CHRONICLE AND RATIONALE FOR FARMERS’ RIGHTS
It is trite, that when exploring the relationship
between two or more concepts of law, these concepts of law must be at the same
legal level of comparability[11]. The chronicle of
farmers’ rights has its development in international forums, which later led
into international declarations and eventually laws. Therefore, the examination of farmers rights
in this study is examined from the international level to show the
comparability of farmers rights with international law. The usage of the word
‘farmers rights’ in the political sense dates back in the early1980’s, when Pat
Roy Mooney and Carly Fowler used the term to climax the valuable but unrewarded
contributions of farmers to plant genetic resources for food and agriculture,
with the intention to countermove the increased demand for plant breeders'
rights, as voiced in international negotiations, to draw attention to the
unremunerated innovations of farmers that were seen as the foundation of all
modern plant breeding[12].
The gestation of this terminology in the international
community started in 1983 when FAO
adopted the International Undertaking on plant genetic resources. The
objectives of this undertaking was to ensure that plant genetic resources of
economic and/or social interest, particularly for agriculture, will be
explored, preserved, evaluated and made available for plant breeding and
scientific purposes and was based on the universally accepted principle that
plant genetic resources are a heritage of mankind and consequently should be
available without restriction[13].
The term farmers right was
finally agreed upon together with breeders’ rights in 1989[14]. Bearing in mind that the International
Undertaking on Plant Genetic Resources was non-binding though, it was the only
instrument that dealt with the protection of genetic resources to its member
states at the time, therefore the inclusion of the term “farmers right” though
a milestone achievement, carried no legal recognition in 1989. However, the
gestation of this concept continued until the 1991 FAO conference through an
adopted resolution that recognized the sovereign rights of nations over their
own genetic resources, where a resolution
was proposed to create an international fund for plant genetic conservation as
a means to implement farmers rights particularly but not exclusively in
developing countries[15]. The International
Undertaking became legally binding in November 2001 and is now called the
International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA).
The International Treaty on Plant
Genetic Resources in its preamble affirms “the past, present and future
contributions of farmers in all regions of the world, particularly those in centres
of origin and diversity, in conserving, improving and making available these
resources, is the basis of Farmers’ Rights. It also affirms that the rights
recognized in this Treaty to save, use, exchange and sell farm-saved seed and
other propagating material, and to participate in decision-making regarding,
and in the fair and equitable sharing of the benefits arising from, the use of
plant genetic resources for food and agriculture, are fundamental to the
realization of Farmers’ Rights, as well as the promotion of Farmers’ Rights at
national and international levels”[16].
Article 9, of the ITPGRFA,
sets out farmers’ rights in a more wide-ranging manner and state as follows[17],
9(1) 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 centres 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.
9(2) The Contracting Parties agree
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:
(a) protection of traditional
knowledge relevant to plant genetic resources for food and agriculture;
(b) the right to equitably
participate in sharing benefits arising from the utilization of plant genetic
resources for food and agriculture; and
(c) 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.
9(3) Nothing in this Article shall
be interpreted to limit any rights that farmers have to save, use, exchange and
sell farm-saved seed/propagating material, subject to national law and as
appropriate.
Charles[18], views the language used in the ITPGRFA as too open and unable to determine any certainty on the
position of farmers’ rights. Charles’ assertion is based on the lack of a
definition regarding the connotation of the wording “farmers’ rights” in the
ITPGRFA. The ITPGRFA’s recognition of farmers’ rights is most probably one of
the biggest contiguous issue as it touches on the interest of the commercial
seed industry, their prospect for remuneration and making profits while at the
same time constituting the ramifications for farmers’ ability to conserve and
sustainably use genetic resources[19].
In addition to the above, Author Elsa[20], of the BENELEX, seems unimpressed with the wording of
Article 9 (3) of the ITPGRFA, the provision seems
unable to reach a conclusion regarding the link between farmers’ rights and
intellectual property rights[21]. The provision does not, therefore, limit the customary rights of
farmers to reuse, exchange or sell farm-saved seeds –nor, however, does it
safeguard these rights by establishing an international legal basis for their
protection” [22].
The emphasizes placed under the ITPGRFA’s preamble on the need to promote
farmers’ rights at both the national and international levels[23], by affirming the basis
of farmers’ rights through their past, present and future contributions of
farmers in all regions of the world, particularly those in centres of origin
and diversity, in conserving, improving and making available these resources[24]. The ITPGRFA with its
many loop holes still remains the only international treaty, affirming the
importance of farmers’ rights. This treaty obliges its member states to assume
responsibility for farmers’ rights by putting mechanisms in place.
The Convention on Biological Diversity (CBD) was
adopted in 1992 in Rio de Jairo, and came in to
force in 1993[25],
this Convention is the only international instrument that comprehensively cover
vast issues concerning the environment from ecosystems, to species and
biotechnology. Its objectives are to conserve biological diversity, sustainable
use of its components and ensure the fair and equitable share of benefits
arising from the use of genetic resources[26].
The CBD is understood to have links
relating to farmers rights, particularly Article 8 (j) in pointing out that;
subject to its national legislation, respect, preserve and maintain knowledge,
innovations and practices of indigenous and local communities embodying
traditional lifestyles relevant for the conservation and sustainable use of
biological diversity and promote their wider application with the approval and
involvement of the holders of such knowledge, innovations and practices and
encourage the equitable sharing of the benefits arising from the utilization of
such knowledge, innovations and practices;
although this Article of the CBD does not expressly speak to farmers’
rights[27]. This study makes
inference from Article 8 (j) as applicable to Farmers’ rights who have used and
continue to use traditional methods to conserve and preserve plant genetic resources.
The ITPGFRA is the only instrument recognizing
farmers’ rights without imposing any restrictions. The ITPGRFA does not necessary
guarantee the protection of farmers
rights, it leaves it for member states to use discretion based on their
national needs and priorities to grant the protection of farmers rights. It is
noteworthy to highlight that the ITPGRFA lacks a definition on “farmers
rights”. This creates a lot of uncertainty in-terms of what does and or does
not amount to farmers rights, a lack of this definition may also make this
rights weak in international law.
Farmers’ rights should be considered
pertinent, not only because farmers’ continue to introduce new plant varieties
but because they preserve and improve biodiversity[28]. Finally, research on GM
crops continually recognize the upper
hand that farmers’ have, in terms of their significance in the process of selecting and conserving plant
varieties. Indeed, “tribal and rural families are thus conserving genetic
variability for public good at their
personal cost. It is this inequity inherent in the current recognition and
reward systems that the concept of farmers rights seeks to end’’[29].
3.
THE OPERATION AND REGULATION OF BIOTECHNOLOGICAL SEEDS
Biotechnology continues to grow rapidly especially in
the Agricultural sector, a number of GM crops or transgenic crops carrying
novel traits have been developed and released for commercial agriculture
production[30].
Genetic modification involves the alteration of an organism’s material by
manipulation of its DNA in an unnatural recombination i.e. mating[31]. These include, inter
alia, pest-resistant cotton, maize, canola (mainly BtorBacillus thuringiensis), herbicide glyphosate-resistant soybean, cotton and viral
disease resistant potatoes, papaya, and
squash[32].
In addition, various transgenic crops are under
development and not yet commercially released with traits for biofortification, phytoremediation, and production of
pharmaceuticals, such as rice with a high
level of carotenoid for the production of
Vitamin A (e.g. golden rice) and bananas with vaccines[33].Research and development
of GM seeds require a lot of time and money. Wherefore, the end product
qualifies a new seed variety which qualifies protection, basically, this means that the developer has
the ultimate right to set conditions to
exclude others from utility. In casu, GM seeds require obtaining permission
of use before a user can use it, normally, were
permission is granted conditions make it impossible to exercise farmers
inherent rights. Evidently, the CBD does not entirely deal with the regulation
of biotechnology, Article 8 (h)[34] , requires its member States to prevent the introduction
of, control or eradication of alien species which threaten ecosystems, habitats
or species; in casu, genetically modified
seeds; this means that member States to the CBD should monitor the introduction
of GMO’s. Similarly, Article 19[35], titled handling of
biotechnology and distribution of its benefits, this Article affirms the
development of a protocol will set out appropriate procedures on handling and
the use of any genetically modified organisms resulting from biotechnology that
may have any adverse effect to the conservation and sustainable use of
biological diversity.
In line with Article 19 of the CBD, a protocol known
as “Cartagena Protocol on biosafety to the Convention on Biological Diversity”
was adopted in 2000. The protocol primarily deals with two pertinent concepts
which are felt throughout its provisions, namely; biosafety and the
precautionary principle[36]. Biosafety ensures that;
“an adequate level of protection in the field of the safe transfer, handling
and use of living modified organisms resulting from modern biotechnology that
may have adverse effects on the conservation and sustainable use of biological
diversity, taking also into account risks to human health, and specifically
focusing on transboundary movements”[37]. While the precautionary
principle states that; where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental degradation”[38].
The precautionary principle is perhaps one of those
principles misunderstood by the general public. It is important to heed that
the precautionary principle does not necessarily prevent the taking place of a
proposed environmental project, but rather suggests the postponement of the
envisaged environmental project, while attaining full scientific knowledge on
the envisaged project. This could mean initiating a trial in order to obtain full
scientific knowledge. The principle also, recognizes the sovereignty of each
State to restrict and guard against the introduction of GMO’s in their
territories. Although more focused, the regulating
of the trans-boundary movement between its member States to promote biosafety
by establishing practical rules and procedures for the safe transfer, handling
and use of genetically modified living organisms[39]. The Protocol also
acknowledges that no technology or human activity is completely risk-free[40]. Member States are free to restrict the introduction of modern
technology in their territory as well as to enforce institutions to enhance
credible and effective safeguards for GMOs[41]. The protocol deals
primarily with GMO’s that are to be intentionally introduced into the
environment such a seeds, trees, or fish and with genetically modified farm
commodities (such as a corn and grain used for food and animal processing)[42]. An adequate level of
protection in the field of the safe transfer, handling and use of living modified
organisms resulting from modern biotechnology that may have adverse effects on
the conservation and sustainable use of biological diversity, taking also into
account risks to human health, and specifically focusing on transboundary
movements”[43].
The extinction of natural biodiversity is accelerating, it is recorded that
more than 31 000 plant and animal species are threatened by extinction[44].
Evidently, there seems to be no global legal uniform provisions on GMOs dealing
entirely with their authorization, deliberate release into the environment,
monitoring and their retrieval.
The international Convention for the Protection of New
Plant Varieties also referred to as UPOV
1991[45], encourages the
development of new plant varieties. The objective of this Convention is to
provide and promote an effective system of plant variety protection, with the
aim of encouraging the development of new varieties of plants, for the benefit
of society[46].
UPOV makes it an obligation for its member States to ensure that they grant and
protect breeder’s rights[47]. Article 14 (2) of UPOV
provides for an optional exception to the protection of breeder’s rights which
allows farmers to replant seed on their own farms without the authorization of
the breeder. The wording of this optional exception is as follows: “notwithstanding
Article 14, each Contracting Party may, within reasonable limits and subject to
the safeguarding of the legitimate interests of the breeder, restrict the
breeder’s right in relation to any variety in order to permit farmers to use
for propagating purposes, on their own holdings, the product of the harvest
which they have obtained by planting, on their own holdings, the protected
variety or a variety covered by Article 14(5)(a)(i) or Article 14(5)(a)(ii)[48]”
Therefore, it is up to each UPOV Contracting Party to
decide if, how and when to incorporate this exemption. Evidently, farmers would
require authorization from a breeder, under the 1991 Act of the UPOV Convention
(see Article 14(1)) the “offering for sale” and “selling or other marketing” of
the propagating material of the protected variety requires the authorization of
the breeder[49].It
is worth pointing out that UPOV does not restrict the protection of genetically
modified Plant variety, the conditions for which a plant variety shall be
qualified for registration as a breeder’s right is set out in Article 5, which
only require a plant variety to be new,
distinct, uniform and stable. Nowhere does the convention restrict the method
or technique by which a new variety is bred[50]. In fact, UPOV extend
protection to GM seeds as they produce new plant variety by consideration, therefore, the same protection afforded to
breeders’ varieties is afforded to GM seeds.
The introduction of the Trade Related Aspects of Intellectual
Property Rights Agreement (TRIPS) of the World Trade Organization is used as a
conduit to accelerate and spread the patenting of GM seeds. The TRIPS[51] agreement on
patentability requires its member states to exclude from patentability in
Article 27 (3) (b) which maintains that:
Plants and animals other than micro-organisms, and essentially
biological processes for the production of plants or animals other than
non-biological and microbiological processes. However, Members shall provide
for the protection of plant varieties either by patents or by an effective sui
generis system or by any combination thereof.
The provisions of this subparagraph shall be reviewed
four years after the date of entry into force of the WTO Agreement.
Article 27(3), of the TRIPS agreement, makes it mandatory for states to ensure that they afford
protection to new plant varieties. In developing Countries, this Article is used to ensure that the Contracting
Parties have laws in place, either a legislation on Plant Protection Variety or
a legislation on patent protection. Both these pieces of legislation intent on
protecting breeders’ rights with minimal attention to farmers’ rights.
Layla Katiraee[52],a blogger titled her piece ‘should biotech companies turn over their innovations
over to public cost-free?” In her blog
piece, she established that GM seeds are not the first seeds to see the
daylight of patents or any form of intellectual property rights thereof.
Although, her assertion is accurate, it is however, the author’s assertion that
Layla failed to observe the operation of those patented seeds maintain and
respect the rights of farmers to replant, sell, exchange and save their seeds.
Whilst the nature of GM seeds i.e. terminator technology once planted can never
be reused. GM seeds also require farmers to sign contracts in order to affirm
respect of/ for? Breeders’ rights. This study also contours to demonstrate
instances where a lack of intention to grow GM seeds to harvest crops are at
risk of becoming GM affected if their neighbour planted GM seeds.
4.
THE LEGAL CHALLENGES RELATING TO GM SEEDS ON FARMERS
RIGHTS
The rush to turn life
forms into global commodities, have no regard for community held knowledge,
religious rights or the human rights of indigenous people[53].GM seeds have demonstrated a clear negative impact on traditional ways that
farmers use to save their seeds. The producers of these seeds often take
technical and legal measures to restrict farmers ability to save or reuse seeds
from plants and the crops they grow. This, of
course, will require farmers to keep buying seeds instead of practicing
their traditional practices of seed saving and their ability to replant for the
next season[54],
this also creates dependency.
Farmers rights to seeds, even though integral for
conservation and sustainable agricultural practices, do not enjoy the legal
protection they deserve. Haley[55], notes three important
facts regarding farmer’s rights, firstly, out of economic necessity, farmers
had the right to save, replant, and resell seeds to other farmers willing to
buy seeds with desirable characteristics. Secondly, the genetic composition of
seeds, rather than the seed itself, was considered part of a common heritage
and widely shared among farmers. Thirdly, seeds were not seen as a commodity;
rather, the right to use and reproduce seeds was inherent in the first purchase
of the seed. Until the nineteenth century, seeds were seen as a public common,
bred and then freely distributed by the public sector[56]. GM seeds are a lethal to
farmer’s inherent rights to freely save, exchange, use and sell seeds. In this section, the author will explore how GM seeds
have deteriorated this inherent right of
farmers.
a. Farmers
rights to saved seeds
In 1995, the
common law right of seed saving was eroded by the United States (US) through a
Supreme Court decision[57], where the court held
that farmers right to saved seed is only valid to the extent that the farmer saves
the seeds for replanting on his or her own farm. This decision clearly illustrates the beginning of the restriction of
farmers rights to share seeds and that farmers right to replant saved seeds is
only valid to the extent that (s)/he does
not share them with third parties.
b. The
right to use and exchange seeds
In 1998, the US
patent office issued a patent called ‘Control of Plant Gene Expression’ to
Delta & Pine Land Company jointly with the US Department of Agriculture[58]. This was the first
patent that rendered seeds sterile at harvest, meaning that; after harvest the
farmer could no longer replant the seed even for own use, the farmer had to buy
new seeds for every planting to reap any
harvest. This seed is also known as ‘terminator technology’ although the best
way for seed companies to prevent reproduction
of seeds[59].
Farmers, especially those poor subsistence farmers of the developing countries
who rely on own saved bred farm seeds for every harvest, could no longer
replant seeds, this creates over dependency, increases poverty, and hunger. A
moratorium on terminator technology was imposed by the CBD in 2000 recognizing
the threats that this technology poses to the environment, to global food
security, and to the livelihoods of more than 1.4 billion people who depend on
farm-saved seed around the world. The moratorium is still valid to this date[60].
Piercy
Schmeiser v
Monsanto Canada Inc[61] is a landmark case, cited as one of the case that set the record straight regarding the
unintentional use of GM seeds by farmers[62]. In this case, the supreme court of Canada ruled against a farmer (Schmeiser) for violating the patent rights of
one of the leading companies in the seed industry (Monsanto). In 1998, Monsanto learned that Schmeiser was growing round up resistant crop without paying
compensation. Monsanto approached Schmeiser requesting him to sign a license
agreement of the patent as well as to pay a fee for growing the round up crop, Schmeiser claimed that the round up crop was
accidental and not intentional, transmitted through pollen and wind. The facts states that at least 95-98% of Schmeiser’s
crops was made up Monsanto's Roundup
Ready Plants and, therefore, constituted
an infringement to the patent holder[63].
c. Right
to sell seeds
In India, there is a growing plethora on the defects
of GM seeds to farmers, a report addressed to the United Nation Commission on
Sustainable Development Programme[64] highlighted concerns
relating to the outbreak of a rising number of suicide among farmers in India,
between 1997-2005 farmers committed suicide every thirty-two (32) minutes particularly
amongst those farmers who grew the GM Bt cotton[65].
Another case that confirms the
rulling of the former is Monsanto Co v
Dawson[66], affirming that the inadvertent presence of
contaminated crops does not protect the innocent possessor from infringement and, therefore, any farmer will be liable for
patent infringement if they use a patented seed even when they are unaware of
the existence of a patent. In developing countries where most have not received
formal education high chances are that there that they will be continually
infringing patents on GM seeds[67].
In East Java, Indonesia, a high rate of crimination of
farmers is recorded for exchanging and selling seeds between themselves. This
practice by farmers is seen as an infringement on the rights of a company
called BISI, the subsidiary of Thai seed company Charoen Pokhpand[68]. Although BISI has
produced no evidence, farmers were summoned for court, out of which fourteen
were prosecuted with imposition of a short jail sentences. Farmers have
experimented with selecting and crossing different maize varieties, sometimes
selling the seeds to their neighbours. They were singled out because some of
them had worked under contract for BISI years earlier, thus making it plausible
for the company to claim that the farmers had stolen its seeds and breeding
techniques[69].
Through this prosecution, one can conclude that a clear message of intimidation
was being sent to farmers – a warning not to select and share their seeds, and
to buy them exclusively from the company. In most cases, these farmers had no
access to legal representation[70]. This same scenario is
playing out in northern Thailand[71]
5.
CONCLUSION RECOMMENDATIONS
Farmers in the developed nations particularly those
part of the OECD countries are not financially challenged to purchase seeds for
every season[72].
This practice is however, different in
many developing countries, for example, in Namibia, my family save seeds from
every harvest to replant for their next season. Whilst my grandfather’s friend
harvest seeds for selling and at most times provide seeds to my grandfather
with seeds at no cost for replanting. My grandfather also tells me that one of
his friend continue to save seeds from past previous years mixing them with
each year’s harvest in order to produce new plant varieties and to harvest
higher yields.
Nonetheless, in countries where the vast majority of
producers are peasant farmers who rely on their local seeds and breeds, GM
seeds are not a good fit. The introduction of GM seeds should be banned completely
in developing countries where farmers are known as the first link to food
security, the planting of a crop requires seeds and where more than 50% of the
population uses agro-farming, using natural traits to mix seeds in pursuit for
particularly robust varieties.
Developing countries are faced with serious problems
such as erratic climate change, loss of biodiversity and unsustainable
environmental practices as well as major concerns of flood, drought and hunger,
which hinders farmers access to agricultural inputs and decreasing food
security[73].
The International Treaty on Plant Genetic Resources for Food and Agriculture[74],
recognizes the enormous contribution that the local and indigenous communities
and farmers of all regions of the world, particularly those in the centres of
origin and crop diversity, by reaffirming the farmer’s rights to save,
exchange, sell and replant seed varieties[75]. International
treaties like UPOV and the TRIPS agreement imposes a restriction to farmers
inherent rights.
In light of the above, this study generates the following
as recommendations:
a) Defining farmer’s rights in the ITPRFA
Defining farmers’ rights at the international arena,
could be something to consider, by so doing, governments will be in a better
position to set the parameter of farmers rights taking in to account the unique characteristics. Kameri[76], recommends that Farmers
rights require express recognition and
protection as rights arising from the past, present and future contributions of
farmers in conserving, improving and making available plant genetic resources,
for the ease of these rights prior declaration or registration should not be a
requirement, but that these rights is to be defined as a legal form of IPR.
These rights would cover the products of farmer selection and breeding, and the
traditional resources that contribute to the conservation, development and
sustainable use of plant and animal genetic resources.
(b) Moratorium on GM seeds
Developing countries need to take ownership of their
States as well as demonstrate control regarding what they introduce in their
territories as recognized by their biosafety regulations and the precautionary
principle. Mehedi[77], recommends the use of
flexibilities under the TRIPS agreement as one way to exempt particular
technologies from patentability especially if they impose a threat to national
security[78].
Evidently, the introduction of GM seeds in developing countries have shown
catastrophic results, limiting the traditional rights of the farmers and the risk of causing seed extinction[79]. Since seeds are the
first link in food production, declaring food as a national security could also
be one way to declare a moratorium on GM seeds. GM seeds are a clear
infringement of the objectives of the Convention on Biological Diversity and
the precautionary principle calls for states to take precautionary measures to
ensure that.
(c)
International uniform guidelines on GM seeds
The introduction of a
uniform global guidelines on GM seeds dealing entirely with
authorization, deliberate release into the environment monitoring and other
retrieval is necessary mechanism.
Numerous authors on this topic recommend the adoption
of a sui generis system for protecting farmers’ rights, however, the word ‘sui
generis’ even though means ‘special of its kind’ is one of the terminology that
is attached to flawed ideas. A sui generis system requires a systematic
definition on how to set up the sui generis system. Also, even if developing
countries introduce sui generis systems in the mist
of GM seeds and GM crops, the intellectual protection of the patent owners of
GM seeds still weaken farmers’ rights. The introduction of guidelines would
perhaps set out a systematic approach on the functionality of the so called sui
generis system.
[1]
Convention on Biological Diversity and the United Nations Environment
Programme, Biosafety and the Environment. “An
Introduction to the Cartagena Protocol on Biosafety (Montreal: CBD and
UNEP)”. 2003. Available at: http://www.unep.org/dewa/Africa/publications/AEO-2/content/160.htm
; last accessed on 13 December 2015.
[2] Sophy.K.J. “Farmers’ rights under Plant Varieties Protection (PVP) legislation in
India: a critical study”. Available at: http://rostrumlegal.com/farmers-rights-under-plant-variety-protection-pvp-legislation-in-india-a-critical-study/ ; last
accessed on 13 December 2015.
[3]
(Ibid.).
[4]
(Ibid.).
[5]
Ronnie Vernooy. “Seeds that give
participatory plant breeding. International Development Research Centre.
2003”. Available at: http://www.idrc.ca/EN/Resources/Publications/openebooks/014-4/index.html#page_1;
last accessed on 13 December 2015.
[6]
Dana Sanchez. “Genetically Modified
Crops: how attitudes to new technology influence adoption.” Securing
Australia’s Future (SAF) Project May 2015. Available at: http://acola.org.au/PDF/SAF05/4Genetically%20modified%20crops.pdf;
last accessed on 13 December 2015.
[7]
(Ibid.).
[8]
(Ibid.).
[9]
Paul Chynoweth. “Chapter three: Legal
research”. Available at: http://www.sps.ed.ac.uk/__data/assets/pdf_file/0005/66542/Legal_Research_Chynoweth_-_Salford_Uni..pdf
(last accessed on 14 December 2015.
[10]
(Ibid.).
[11] Deutsche Gesellschaft für Internationale
Zasammernabeit (GIZ). “The assessment
findings of the UPOV convention, farmer’s rights and human rights integrated
assessment of potentially conflicting legal frameworks”. Federal Ministry
for Economic Cooperation Development. 2015. Available at: https://www.giz.de/fachexpertise/downloads/giz2015-en-upov-convention.pdf
;last accessed on 13 December 2015.
[12]
(Ibid.).
[13]
Article 1 of the International Undertaking on Plant Genetic Resources for Food
and Agriculture as annexed to resolution 8/83 of FAO. This undertaking was
adopted on 23 November 1989.
[14]
Craig Borowiak. “Farmers’ Rights:
Intellectual Property Regimes and the Struggle Over Seeds”. 32 Politics
& Society 511. 2004.
[15]
Md. Mehedi Hasan. “The use of Terminator
Technology in GMO’s: Implications for Farmer’s Rights to saved seed in Bangladesh”.
2013. Available at: https://www.academia.edu/9154687/Use_of_Terminator_Technology_in_GMOs_Implications_for_Farmers_Right_to_Save_Seed_in_Bangladesh
; last accessed on 20 September 2015.
[16]
The preamble of the ITPGRFA available at http://www.planttreaty.org/content/texts-treaty-official-versions
; last accessed on 20 December 2015.
[17]
Charles Lawson. “Implementing farmer’s
rights: finding meaning and purpose of the international Plant Treaty on Plant
Genetic Resources for food and Agriculture”. Griffith University (2004).
Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2626668; last accessed on 23 December 2015.
[18]
(Ibid.:17).
[19]
(Ibid.).
[20] Elsa Tsioumani. “Benefit-sharing and farmer’s
rights”. BENELEX. (2014) Available at: http://www.benelexblog.law.ed.ac.uk/2014/05/13/benefit-sharing-and-farmers-rights/
;last accessed on 12 December 2015.
[21]
9(3) Nothing in this Article shall be
interpreted to limit any rights that farmers have to save, use, exchange and
sell farm-saved seed/propagating material, subject to national law and as
appropriate.
[22]
(Ibid:.20).
[23]
(Ibid.).
[24]
(Ibid.: footnote 21).
[25]
The Convention on Biological Diversity of 1992, the texts of the Convention are
available at: https://www.cbd.int/convention/text/ ; last
accessed 12 December 2015.
[26]
(Ibid.).
[27]
(Ibid.).
[28]
The International Treaty on Plant Genetic Resources for Food and Agriculture of
2001. Available at: http://www.planttreaty.org/ ; last accessed
on 12 December 2015.
[29]
Swaminathan, M.S. "Farmers' Rights
and Plant Genetic Resources." Biotechnology
and Development Monitor" 1998. No. 36, pp. 6-9.
[30]
David Kruf. “Impacts of Genetically Modified Seeds on Farmers”. 2001. Available
at: https://pennstatelaw.psu.edu/_file/aglaw/Impacts_of_Genetically_Modified.pdf
; last accessed 20 November 2015.
[31]
(Ibid.).
[32]
(Ibid.).
[34]
Article 8 (h) of the Convention on Biological Diversity (CBD) of 1992, the
texts of the Convention are available at: https://www.cbd.int/convention/text/;
last accessed on 12 December 2015.
[35]
Article 19 of the CBD, available at: https://www.cbd.int/convention/text/
; last accessed on 12 December 2015.
[36]
Biosafety and the Environment: An introduction to the Cartagena Protocol on
Biosafety. This introduction to the Cartagena
Protocol on Biosafety was published in June 2003 by the Secretariat of the
Convention on Biological Diversity and the United Nations Environment Programme
to assist public understanding of the Cartagena Protocol on Biosafety. It is
not intended to provide legal interpretation of the Protocol. Available at: www.biodiv.org ; last accessed on 16
December 2015.
[37]
(Ibid.).
[38]
(Ibid.).
[39]
(Ibid.).
[40]
(Ibid.).
[41]
(Ibid.).
[42]
(Ibid.).
[43]
(Ibid.).
[44]
Secretariat of the Convention on Biological diversity (2003) Biosafety and the
Environment.
[45]
The International Convention for the Protection of New Plant Varieties, adopted in Paris in 1961 and
revised in 1972, 1978 and 1991. Available at: http://www.upov.int/en/publications/conventions/1991/act1991.htm
;last accessed on 16 December 2015.
[47]
Article 2 of UPOV 1991. Available at: http://www.upov.int/upovlex/en/conventions/1991/content.html
; last accessed on 17 December 2015.
[48]
Article 15 of UPOV 1991. Available at: http://www.upov.int/upovlex/en/conventions/1991/content.html
; last accessed on 17 December 2015.
[49]
(Ibid.).
[50]
(Ibid.).
[51]
The agreement on the trade related Aspects of Intellectual Property Rights
(TRIPS) available at: https://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm
last accessed 3 December 2015.
[52]
Layla Katiraee. “Patents and GMO’s:
should biotech companies turn innovations over to public cost free?”
(2014). The blog is available at: https://www.geneticliteracyproject.org/2014/04/22/patents-and-gmos-should-biotech-companies-turn-innovations-over-to-public-cost-free/
(last accessed 12 December 2015).
[53]
“You too can be a Seed Saver, A guide to
seed Saving”. Available at: http://www.navdanya.org/attachments/seedkit.pdf
; last accessed on 20 November 2015.
[54]
Minxing Zhao.“Implication of genetically
modified seeds on Chinese Farmers right to food”. 2012. Vol.2 online.
[55]
Halley Stein. “Intellectual Property and
Genetically Modified Seeds: The United States, Trade, and the Developing world”.
2005. NW.J.TECH & INTEL. PROB.151. Available at http://scholarlycommons.law.northwestern.edu/njtip/vol3/iss2/4;
last accessed on 3 December 2015.
[56]
(Ibid.).
[57]
Asgrow Seed v Winterboer 1995 (51) U.S. at 179.
[58]
Gupa. P. K.“The terminator Technology for
seed production and protection: why and how? Current science”.1998. 75:1319-1323.
[59]
Md. Mehedi Hasan. “The use of Terminator
Technology in GMO’s: Implications for Farmer’s Rights to saved seed in
Bangladesh”. 2013. Available at: https://www.academia.edu/9154687/Use_of_Terminator_Technology_in_GMOs_Implications_for_Farmers_Right_to_Save_Seed_in_Bangladesh
;last accessed on 20 September 2015.
[60]
The Convention on Biological Diversity. Available at https://www.cbd.int/
; last accessed on 17 December 2015.
[61]
Piercy Schmaiser v Monsanto Canada Inc 2004 (1) (S.C.R.) 902, SCC at 34.
[62] David Kurft. “Impacts of Genetically Modified Crops and Seeds on Farmers”.2000.
Available https://pennstatelaw.psu.edu/_file/aglaw/Impacts_of_Genetically_Modified.pdf
;last accessed on 20 September 2015.
[63]
Available at: http://es.banterminator.org/Noticias/Noticias-y-avisos/Canadians-call-on-Government-to-Defend-Moratorium-on-Terminator-Seeds
;last accessed on 17 December 2015.
[64]
A report conducted addressed to the United Nation Commission on Sustainable
development http://www.un.org/esa/sustdev/csd/csd16/PF/presentations/farmers_relief.pdf;
last accessed on 3 December 2015.
[65]
(Ibid.).
[66]
Mosanto Co v Dawson (WL) 2000 (E.D. Mo.).
[67]
Kanchana Kariyawasam. “Legal liability,
intellectual property and genetically modified crops: their impact on world
agriculture”. Pacific Rim Law & Policy Journal Association.
[68]
Seed laws that criminalizes farmers: resistance
and fight back, a seeds industry. This report was produced by La Via
Campesina, International peasant movement, an international movement which
brings together millions of peasants, small and medium-size farmers, landless
people, women farmers, indigenous people, migrants and agricultural workers
from around the world. 2015.
Available at: https://www.grain.org/article/entries/5142-seed-laws-that-criminalise-farmers-resistance-and-fightback
; last accessed on 17 December 2015.
[69]
(Ibid.).
[70]
(Ibid.).
[71]
(Ibid.).
[72]
(Supra: footnote 53).
[73]
“The law of the seed”. Available at www.navdanyainternational.it
; last accessed on 27 November 2015.
[74]
International Treaty on Plant Genetic Resources for Food and Agriculture.
Available at http://www.planttreaty.org/content/texts-treaty-official-versions
last accessed on 27 November 2015.
[75]
Supra (Article 9).
[76]
Kameri-Mbote. “Community, farmer and
breeders’ rights in Africa: towards a legal framework for sui generis
legislation”. 2003. University of Nairobi Law Journal.
[77]Md.
Mehedi Hasan. “The use of Terminator
Technology in GMO’s: Implications for Farmer’s Rights to saved seed in
Bangladesh”. 2013. Available at: https://www.academia.edu/9154687/Use_of_Terminator_Technology_in_GMOs_Implications_for_Farmers_Right_to_Save_Seed_in_Bangladesh
; last accessed on 20 September 2015.
[78]
(Ibid.).
[79]
(Ibid.).
