Restrictive seed laws are leaving out peasant farmers who are key to feeding the world and developing climate friendly food systems.
Peasant rights movements warn that intellectual property rights regimes are becoming widespread in the developing world, threatening their own traditional way of seed saving and exchanging.
“Seeds are humanity’s common good,” said Alimata Traoré from Rural Women for Food Sovereignty, a Malian network of 50 cooperatives of 5,000 peasant women across the country who practise agroforestry to produce cereals and vegetables.
Speaking to Geneva Solutions, Traoré explained that in her country, where 80 per cent of the food comes from peasant seeds, only registered seeds could be legally bought and sold.
Traoré is part of La Via Campesina, a global network of peasant farmers around the world advocating for food sovereignty, with common ownership of seeds at its core.
Why it’s complicated. The system they envision is nothing new. It has been largely used for thousands of years by peasant farmers who grow, save, exchange and sell their seeds. Today, countries are increasingly following an intellectual property rights approach that rights groups say is at odds with peasants’ right to seeds, which is recognised by the UN mainly through the UN declaration on the rights of peasants adopted in 2018.
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement requires all 164 members of the World Trade Organisation to protect plant varieties either through patents or other specific protection regimes. Currently, 71 states and the European Union have complied with the TRIPS Agreement by adhering to the International Union for the Protection of New Varieties of Plants (UPOV), which gives plant breeders commercial control over the production, sale and other marketing of their new plant varieties, with some exceptions for non-commercial use and research purposes.
Plants make up 80 per cent of the food we eat, and yet their genetic diversity is eroding at an incredibly fast pace, with a 75 per cent decline since the beginning of the 20th century, according to the Food and Agriculture Organization (FAO).
The aim of the UPOV system is to encourage the development of new varieties. Investment would not be possible “without a plant variety protection system that ensures that you have a certain time to be able to commercialise the plant variety and recover the investment,” Yolanda Huerta, legal counsel and director of training and assistance at UPOV, told Geneva Solutions.
“In some of the countries where there is no plant variety protection, either products from improved varieties need to be imported because there is no local breeding taking place, or there is only breeding in public breeding institutes that depend on public funds,” she added.
“When a country takes a decision that it is in the national interest to introduce plant variety protection and become a member of UPOV, it’s because they want to create an environment that will facilitate a diversity of breeders – public, private, local, foreign, small and large enterprises as well as individuals.”
Rights groups dispute the claim that the UPOV system can help protect biodiversity. They argue that it is part of a system that has encouraged agricultural intensification and monocultural practices, which are viewed as some of the main culprits of biodiversity loss.
The decline of seeds. Since the beginning of agriculture some ten centuries ago, the world has used over 10,000 different varieties of plants for food. Today, 12 crops account for 80 per cent of food globally, according to the FAO.
The vast majority of seeds used worldwide are still peasant seeds. Through their traditional practices, peasants can collect, save and can also come up with new and more climate-resistant varieties. In Mali, it is “the women who have the knowledge about which seeds to save and how to conserve them for future harvesting seasons”, explained Traoré. Her organisation is working to collect and multiply native seeds to maintain their “food sovereignty”.
Farmers excluded. But like in other UPOV member states, to be registered within its framework, seeds must meet certain criteria, including being stable and uniform so that the characteristics of the plant are the same with each generation. Peasant seeds, which are by nature unstable and constantly evolving, are excluded from this system, limiting their spread.
Huerta noted that UPOV doesn’t stop countries from recognising the peasant seed system. “Varieties that are not protected, or are no longer under protection because the time has expired, or landraces, wild plants and everything that is in nature, are outside the scope of the UPOV convention,” she said.
But in many cases, countries also ban the saving, selling and exchange of non-protected seeds, which is an important income source for many farmers.
This is the case in the European Union, where non-protected seeds cannot be commercialised. The EU is currently revising its seed legislation and rights groups are pushing for peasant seeds to be recognised.
In Mali, peasant groups have also sat down with the government and revised the law for the informal seed system to be recognised. A text has been filed but the Ministry of Agriculture has yet to adopt it, Traoré noted.
While the understanding partly helped solve the recognition problem, the regulation framework remains largely focused on the formal seed system, failing to take into account the needs and worries of peasant farmers, which make up the greater part of the producers.
Restrictions and the lack of recognition of their traditional ways have pushed many traditional farmers into buying commercial seeds. At first, they seem more profitable since they provide higher yields and are more stable, but farmers then enter a dependence loop of having to buy new seeds from the breeder every year.
In an ideal world, peasants would only use their own seeds, but “states are promoting commercial seeds through subsidies and developing programmes,” observed Christophe Golay, senior research fellow and strategic adviser on economic, social and cultural rights at the Geneva Academy, a practice that has been previously criticised by former UN special rapporteur on the right to food Olivier de Schutter.
Golay cites the example of the Bill and Melinda Gates Foundation project Alliance for a Green Revolution in Africa (AGRA), which according to rights groups has promoted in many countries the cultivation of corn, reducing the proportion of other more nutritious and climate-resistant crops, such as millet and sorghum.
The peasants who were used to reusing, exchanging and selling their seeds cannot do the same with the commercial variety of corn, losing an important source of income.
The UPOV regime allows an exception for farmers to save, resow and in some cases exchange and sell protected seeds in the case of subsistence farming, but governments have to have a law that allows this exception. For Golay, this “farmer’s privilege” is still too restrictive.
In many cases, it is developed countries which are pushing for developing nations to adopt this model. Switzerland, for example, has repeatedly included in its trade agreement conditions that developing countries adopt the UPOV 1991 convention and according to research by the Geneva Academy about Swiss foreign policy, “there is no evidence that any of the eight countries party to the EFTA-Mercosur trade negotiations consulted peasants or rural stakeholders or allowed them to participate in the talks”.
Rights groups also claim that intellectual property rights regimes have led to legal cases being brought against smallholder farmers for saving and resowing protected seeds. According to Huerta, UPOV hasn’t received reports from their members of legal claims on breeder rights grounds in relation to acts by smallholder farmers.
Another issue raised is the concentration of commercial seed rights in the hands of a few companies. UPOV argues that their plant protection framework encourages a more diversified pool of breeders, ensuring that public and private actors both big and small can participate in the endeavour.
According to research by Professor Philip Howard from the International Panel of Experts on Sustainable Food Systems (IPES-Food), who has been tracking the merging of seed firms, four giants – Bayer who owns Monsanto, Chem-China, Corteva and BASF – control 60 per cent of protected seed sales globally.
As climate change continues to accelerate and conditions to produce food become harsher, there is an urgent need to come up with more resilient crops. Positions diverge on whether crop bioengineering or a return to small scale production systems holds the answer.
Traoré underscored that “people must realise the value of peasant farmers and their knowledge” but also that farmers must learn about their rights and become familiar with the UN declaration on peasants rights and other international instruments to be able to demand that those rights are respected.
For Huerta, there needs to be “more understanding about complementarity, the role of each treaty or law and how they serve important purposes, and how they can create synergies of working together rather than creating this impression that they are one against the other”.
She also pointed out that it is a matter for policy-makers to involve farmers, “understand [their] needs and ensure that the tools that they put in place are really adapted to meet those policy objectives”.