26 International Law and the Protection of Farmers’ Rights Convention on Biological Diversity

Dr. Aneesh V. Pillai

epgp books

 

 

1. Learning Outcomes:

  • This chapter will introduce students to the interaction between the rights of the farmers, rights of the breeders and the provisions of Convention on Biodiversity (CBD).
  • The students would then be taken through the details of CBD provisions which regulate farmer’s rights like benefit sharing.

2. Introduction

The Convention on Biological Diversity (CBD) is mainly a document aimed at protecting the environment, by maintaining the diversity of it. However, this Convention is of significance to farmers because, in order to maintain this diversity, scientists and breeders are allowed to have access to the plant genetic resources (PGR), which will be used by them to develop new plant varieties. Thus in turn will be a subject matter of PBR. This is also applicable to plant genetic resources for food and agriculture. It is at this juncture that the farmers’ rights are attracted (otherwise CBD applies to all types of PGR). So, unless in the CBD there is enough space for Farmers’ Rights, plant breeders’access to PGR of the farmers will be easy and the vice versa will be very tough. Also, due to this reasons, there is a need to recognise property rights to the farmers also in this document. The objective of this Chapter is to find out whether CBD gives any right to the farmers, as against PBR.

3. The Convention on Biological Diversity

 

Being an international Convention, CBD recognizes the States as the authority to determine access and other rights over the PGR1. CBD says

“Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.”

This shows that the rights of the holders of PGR is to be recognized , (rather can be) by the States concerned. This is a space left by CBD for the domestic legislations to give their local people, or indigenous people or farmers any right they will require.

However, one Article in the Convention directly speaks about two concepts (not rights), which could be solidified into right by the State parties. The two concepts recognized can be seen from Article 8(j) states 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” (emphasis added).

 

From this it is clear that there are mainly two potential rights called-

  • Approval and involvement of the holders of the knowledge, innovations and practices.
  • Equitable sharing of benefits. But these are only ‘potential’ rights because these are subject to national legislations.

However, these words give space for recognition of two rights- which otherwise the States would not have been able to recognize. From the wording of Article 8 (j), it is quite clear that these are group rights due to the words- indigenous and local communities , and stake holders. Now let us see the implications of these two concepts

3.1. Approval and involvementof the holders

Approval and involvement of the farmers are more clearly used as prior informed consent (PIC) in another provision of CBD. These provisions are:-

Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.

Each Contracting Party shall endeavour to create renditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention.

For the purpose of this Convention, the genetic resources being provided by a Contracting Party, as referred to in this Article and Articles 16 (access to and transfer of technology) and 19 (handling of biotechnology and equitable sharing of benefits), are only those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention.

Access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article.

Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that party. (emphasis added).

 

Though, State is the ultimate authority to decide on the prior informed consent, as it is not the farmers whose PIC that is envisaged by the CBD, if the State parties choose to allow access to genetic resources, which are held by the farmers, then the PIC is and should not be that of the State, but that of the farmers, as justice and fairness demands it. Thus the PIC of the farmers becomes inevitable in the case of allowing access to PGRFA. CBD does not give any guideline on either PIC or benefit sharing. There are some guidelines however, by the Secretariat of the Convention on Biological Diversity, the study by the TRIPS council on the relationship between TRIPS and the CBD , case studies in countries like Panama, Philippines and Russian Federation3 and the latest Nagoya Protocol (of CBD) on Access and Benefit sharing.

Actually, there was no need of such rights in the past, as there was no economic value and thus no demand for PGR and TK. In the changed circumstance, PIC is recognized lest the PGR and TK of the farmers should be looted away. So, PIC can be said to be a product of necessity of the time. It means that the law recognizes that the farmers are the ultimate authority to decide on the PGR and TK held by them. Actually identifying them as the custodian of the TK and PGR itself is a recognition of some rights to them, as otherwise, it is not definite as to who all hold what. So, the depth and breadth and effectiveness of this right (right to be consulted) depends on the national legislations. However, there is an international understanding about this aspect, which should be reflected in the national legislations including that of India. So, brief description about this international understanding is done here.

Article 8 (j) stipulates that the (discussed above) wider application of the knowledge, innovations and practices of the indigenous and local people with traditional lifestyle should be done with the approval and involvement of the holders of such knowledge, innovations and practices. Reading these two provisions together gives the picture that not only the approval (PIC in other words), but also the involvement of the farmers will be needed while allowing access to PGRFA. However, this interpretation needs to be tested in the light of other guidelines issued by the Secretariat of the CBD and the more binding instrument, the Nagoya Protocol on Access and Benefit Sharing to CBD. Nagoya Protocol stipulates the following principles:

  • Provide for legal certainty, clarity and transparency of their domestic access and benefit-sharing legislation or regulatory requirements;
  • Provide for fair and non-arbitrary rules and procedures on accessing genetic resources;
  • Provide information on how to apply for prior informed consent;
  • Provide for a clear and transparent written decision by a competent national authority, in a cost-effective manner and within a reasonable period of time;
  • Provide for the issuance at the time of access of a permit or its equivalent as evidence of the decision to grant prior informed consent and of the establishment of mutually agreed terms, and
  • notify the Access and Benefit sharing Clearing-House accordingly;
  • Where applicable, and subject to domestic legislation, set out criteria and/or processes for obtaining prior informed consent or approval and involvement of indigenous and local communities for access to genetic resources; and
  • Establish clear rules and procedures for requiring and establishing mutually agreed terms. Such terms shall be set out in writing and may include, inter alia:
    • A dispute settlement clause;
    • Terms on benefit-sharing, including in relation to intellectual property rights;
    • Terms on subsequent third-party use, if any; and
    • Terms on changes of intent, where applicable.

One of the principles of Prior Informed Consent is it should be obtained from national competent authorities in the case of access genetic material preserved in situ. What is the role of the traditional farmers here is the question. The Nagoya Protocol stipulates that “Respecting established legal rights of indigenous and local communities associated with the genetic resources being accessed or where traditional knowledge associated with these genetic resources is being accessed, the prior informed consent of indigenous and local communities and the approval and involvement of the holders of traditional knowledge, innovations and practices should be obtained, in accordance with their traditional practices, national access policies and subject to domestic laws.”

This suggests that if there are established legal rights for farmers over the PGR or TK, they will have to be respected, while access is given to them. This gives the scope to the national legislations to create even property rights to the farmers over the PGR and TK.

 

4. Benefit sharing

 

 

Benefit sharing is another potential right that stems from the CBD. When the plant breeders develop a new variety out of the traditional varieties that are conserved by the farmers, the new variety gets protection as a PBR, and is of highly economic value. But, the farmers who conserved the traditional varieties do not get anything. So, the benefit sharing concept demands that the farmers (in CBD, the word used is, local community and indigenous people) should be given a share of the benefit that is accrued to anyone by the usage of the TK or PGR that is maintained by them. In CBD it is provided in Article 19 thus :

“Each Contracting Party shall take all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms.”

Nagoya Protocol also deals with benefit sharing thus:

  1. In accordance with Article 15, paragraphs 3 and 7 of the Convention, benefits arising from the utilization of genetic resources as well as subsequent applications and commercialization shall be shared in a fair and equitable way with the Party providing such resources that is the country of origin of such resources or a Party that has acquired the genetic resources in accordance with the Convention. Such sharing shall be upon mutually agreed terms.

  2. Each Party shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilization of genetic resources that are held by indigenous and local communities, in accordance with domestic legislation regarding the established rights of these indigenous and local communities over these genetic resources, are shared in a fair and equitable way with the communities concerned, based on mutually agreed terms.
  3. To implement paragraph 1 above, each Party shall take legislative, administrative or policy measures, as appropriate.
  4. Benefits may include monetary and non-monetary benefits, including but not limited to those listed in the Annex.
  5. Each Party shall take legislative, administrative or policy measures, as appropriate, in order that the benefits arising from the utilization of traditional knowledge associated with genetic resources are shared in a fair and equitable way with indigenous and local communities holding such knowledge. Such sharing shall be upon mutually agreed terms. (Nagoya Protocol Article 5)

The Nagoya Protocol envisages a clearing house for the purpose of access and benefit sharing. The provision provides thus:

  1. An Access and Benefit-sharing Clearing-House is hereby established as part of the clearing-house mechanism under Article 18, paragraph 3, of the Convention. It shall serve as a means for sharing of information related to access and benefit-sharing. In particular, it shall provide access to information made available by each Party relevant to the implementation of this Protocol.
  2. Without prejudice to the protection of confidential information, each Party shall make available to the Access and Benefit-sharing Clearing-House any information required by this Protocol, as well as information required pursuant to the decisions taken by the Conference of the Parties serving as the meeting of the Parties to this Protocol. The information shall include:
  • Legislative, administrative and policy measures on access and benefit-sharing;
  • Information on the national focal point and competent national authority or authorities; and
  • Permits or their equivalent issued at the time of access as evidence of the decision to grant prior informed consent and of the establishment of mutually agreed terms.

3. Additional information, if available and as appropriate, may include:

  • Relevant competent authorities of indigenous and local communities, and information as so decided;
  • Model contractual clauses;
  • Methods and tools developed to monitor genetic resources; and
  • Codes of conduct and best practices.

4. The modalities of the operation of the Access and Benefit-sharing Clearing-House, including reports on its activities, shall be considered and decided upon by the Conference of the Parties serving as the meeting of the Parties to this Protocol at its first meeting, and kept under review thereafter.” (Article 15)

5. Conclusion

One of the main problems with sharing of benefits regarding country of origin (or countries of origin) and the indigenous and local people is that, to fix the country of origin, or the particular indigenous or local communities within that country, who hold the plant genetic resources or the traditional knowledge is very difficult.

Even if a particular community is recognized as the holders of a particular PGR or TK, it is still a question as to how the benefit should be utilized. Actually, being a group right, these two concepts called the prior informed consent, and the equitable sharing of benefits cannot be of any practical relevance, unless there are clear methods for creating these two concepts as group rights, and thus the realization of it.

 

you can view video on International Law and the Protection of Farmers’ Rights Convention on Biological Diversity

Reference

  1. P.S. Seema, Protection of Farmers’ Rights in India: Challenges for Law in the context of Plant Breeders’ Rights, 2012.
  2. www.ffla.net/…/63-indigenous-peoples-free-prior-and-informed–consent-in
  3. https://www.cbd.int/convention/text/
  4. G.S Rodengal, Convention on Biological Diversity and Developing Countries, Kluwer Academic Publishers, 2000
  5. https://www.cbd.int/doc/articles/2002-/A-00098.pdf
  6. https://wedocs.unep.org/bitstream/handle/20.500.11822/8175/-Handbook%20on%20the%20Implementation%20of%20Conventions%20Related%20to%20Biol ogical%20Diversity%20-20001529.pdf?sequence=2&isAllowed=y