A UN report to be discussed on Monday at the Human Rights Council argues that farmers’ seeds are key to preserving biodiversity and countries should protect them.
Farmers and indigenous peoples have saved, used and bartered seeds for thousands of years, resulting in rich, diverse gene pools. But current laws favouring commercial seeds used in industrial agriculture are posing a threat to this knowledge, according to the UN special rapporteur on the human right to food, Michael Fakhri.
In his latest report, which he will present to the Human Rights Council on Monday, Fahkri warns that countries are not properly protecting farmers' traditional ways and instead are increasingly favouring intellectual property rights and contract laws.
Why seeds matter. The latest report by the Intergovernmental Panel on Climate Change (IPCC) made a clear statement: climate change is having devastating consequences on human societies and on the Earth’s ecosystems. Scientists have warned that biodiversity is degrading incredibly fast, with around 10 per cent of plant and animal species going extinct in the last 12,000 years.
As climate change accelerates, global temperatures are rising, rainfall patterns are becoming erratic, droughts and floods more frequent, and pests are becoming even more destructive. Crops, which used to be able to grow under certain conditions, are increasingly threatened. Yields have dropped sharply in many regions, with each degree of added warming threatening to cause a three to seven per cent in crop yield loss, according to the IPCC report.
“If we don't address seeds in the immediate term, we're gonna continue losing life to the point where we might hit a tipping point where it's too late,” Fakhri told Geneva Solutions.
Fakhri argues that crop diversity is key to coping with future climate conditions, especially those which we can’t predict.
“Let's say you're in an area that has a certain pattern of rainfall and because of climate change, you're experiencing drought more often. You start noticing which plants are surviving under the new conditions. You collect those seeds, you share them and now we have a new variety that has adapted in real time,” he explained.
This is essentially how conventional plant breeding works, but according to Fakhri’s report, misinterpreted intellectual property rights laws are making these practices illegal in a growing number of states.
How seeds are protected
Since 1995, countries are required by the Trade-Related Aspects of Intellectual Property Rights Agreement, or TRIPS, to protect plant varieties through patents or some other regime.
“Since the WTO was created there has been a long-standing fundamental disagreement over what this means. There is absolutely no consensus amongst member states,” Fakhri said.
The United States has chosen to use patents to protect rights on living materials. But most countries have complied by signing up to the International Union for the Protection of New Varieties of Plants (UPOV), which gives breeders commercial control over their varieties.
UPOV argues that it fosters innovation by ensuring that the patent holder can get a return on its investments, thus improving the chances of developing crops that are resilient to climate change.
But Fakhri differs: “A corporation is designed to give investors and shareholders a profit. They're not going to necessarily design the best seed for life to continue flourishing. They're going to design the best seed that serves market demand under climate change conditions that generates a profit.”
While UPOV provides exceptions for non-commercial uses which could apply to farmers' seeds, in practice countries have put in place certification frameworks requiring seeds to be distinctive, uniform and stable.
“Farmers cannot respond to industrial criteria, so they are de facto excluded,” Philip Seufert, policy adviser at FIAN International, told Geneva Solutions.
“Farmer seeds are the precondition for everything. If you're a country that wants a commodity seed system, that's your sovereign right. But don't do that until you first have a robust legal system that protects farmers' right to save, use, exchange and sell seeds,” said Fakhri.
Fighting to put farmers rights at the centre
Smallholder farmers – less than two hectares in size – make up around 84 per cent of the world’s farms yet they are among the world’s poorest and the most affected by food insecurity. Some developing countries, which overrepresent this group, are increasingly pushing for a farmer rights approach.
The UN declaration for the rights of peasants adopted by the General Assembly in 2018 states that peasants have “the right to save, use, exchange and sell their farm-saved seed or propagating material”.
Fernando Rosales, former negotiator for the Bolivian mission to the UN in Geneva, which led the initiative, says that negotiations were difficult. “When we were at the negotiating table, developed countries said that [UPOV] was their standard and that it was not the Human Rights Council’s purview to move beyond that,” he told Geneva Solutions.
“We worked with a lot of experts trying to reach the right balance, and finally said that if you are a firm producing commercial seeds, you can sell and use it as you deem appropriate. But you have to respect peasant’s right to their seeds and you cannot punish them for using your seeds, if they use them in good faith.”
Rosales, who now works with the South Centre as project coordinator, says that the declaration has started to be used in several cases in Colombia, Ecuador and other Latin American countries to defend peasants' rights.
The International Treaty on Plant Genetic Resources for Food, which comprises 148 countries, is also viewed as a strategic place to push for farmers rights, given its broad membership. The issue is due to come up at the agreement’s next meeting in September.
“It has been a contentious issue. States such as Canada, the US and the Europeans are strongly pushing for a more corporate agenda, while some countries from the Global South are pushing for a real implementation of the rights of peasants,” Seufert says.
African countries, including Niger and Malawi, and other Latin American countries including Bolivia and Ecuador have been outspoken about having rules to ensure industry respects farmer’s rights, he notes.
Advocates are hoping to see a breakthrough from the meeting, possibly in the form of some guidelines as to how to implement farmer’s rights enshrined by the treaty.
Seufert points out that Fakhri’s report could help frame the upcoming discussion from a human rights perspective. “International negotiations around seeds have tended to frame it as a biodiversity or environmental issue. This report frames the issue of seeds clearly within the human rights framework, from the right to food and other human rights, especially the right to life,” he said.