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Outcome on FAO Treaty/UPOV inter-relations, far cry from expectations
Published in SUNS #8207 dated 23 March 2016

Geneva, 22 Mar (Sangeeta Shashikant) - The meetings of the International Union for the Protection of New Varieties of Plants (UPOV) ended last week with a decision to hold a joint symposium on 26 October with the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) on the inter-relations between the Treaty and the UPOV Conventions.

The outcome is a far cry from expectations many had with the process of identification of inter-relations, such as the commissioning of an independent study that examines the extent to which the activities of UPOV and WIPO support or hinder farmers' rights, and if a symposium is held, that it should adequately include speakers who are keen on the full realization of Article 9 and particularly from the peasant farming community.

The 91st session of the Consultative Committee, the main decision-making body of UPOV, took the decision on 17 March.

The Committee considered UPOV document CC/91/6 which contains comments of Denmark, Germany, Norway, Turkey and the United States as well as the preliminary list of issues identified by the ITPGRFA on interrelations of the ITPGRFA and the relevant international instruments of UPOV and WIPO with regard to farmers' rights.

The Committee also heard a presentation by Shakeel Bhatti, the ITPGRFA Secretary, who was however not present when the decision was taken by the Committee.

The Committee endorsed elements of the symposium programme presented by Bhatti as follows:

Session 1: Overview of UPOV and the ITPGRFA; Session 2:Analysis of the Inter-relations between Farmers' Rights and Plant Breeders' Rights Under the ITPGRFA and the UPOV Convention - Presentation by 4 experts; Session 3: Experiences of the Contracting Parties in Implementing the UPOV Convention and the ITPGRFA - Experiences shared by 4 Contracting Parties; Session 4: Overview of initiatives involving the ITPGRFA and UPOV - Information initiatives (joint workshops), Practical initiatives (Platform for Co-development and Transfer of Technology; Public Private Partnership on Pre-breeding); Mutual attendance, participation, and information exchange (Committees, enhancement, etc).

The Committee also "noted that the draft program would need to be considered within the ITPGRFA" and "If there were substantial changes proposed by the ITPGRFA, the Consultative Committee would be consulted by correspondence. If agreement could not be reached by correspondence, the Consultative Committee agreed that it would need to reconsider the matter further at its ninety-second session."

In addition, the decision also includes:

* "more than four more presentations by Contracting Parties might be necessary" and "it would be useful to provide information on real problems experienced by farmers and breeders";

* "four experts, to be agreed by the Office of the Union, in consultation with the President of the Council, and the Secretary of the ITPGRFA, to be invited to present their views at the Symposium";

* "Contracting Parties to the UPOV Convention and the ITPGRFA would present information on their experiences in implementing the UPOV Convention and the ITPGRFA";

* "invitations to the Symposium to be sent to members and observers in UPOV bodies and to Contracting Parties and observers to the ITPGRFA and the Symposium to be open to the public with advance registration, with the presentations and a video of the Symposium being made available on the UPOV website after a suitable broadcast delay";

* "a joint publication of the proceedings of the Symposium to be produced by the ITPGRFA, containing the speakers' written contributions and a summary of discussions, to be made available on the UPOV website at a later date";

* "The Consultative Committee agreed to consider the outcome of the Symposium at its ninety-second session and to consider any possible further action concerning interrelations at that time".

Expressing disappointment with the outcome, Francois Meienberg from the Zurich-based Berne Declaration said, "It seems that UPOV has hijacked the whole process and the ITPGRFA has lost control. While the process was first developed by the ITPGRFA with a lot of emphasis on 'a participatory and inclusive process', the decision adopted by UPOV does not even mention the involvement of stakeholders in the process."

Meienberg stressed that, "In addition, the decision states that it is the UPOV office, which agrees on the speakers in consultation with the other partners. There is a risk that the main questions regarding farmers' rights will not be tackled. The Treaty Secretariat should never have accepted such an agreement. The result of this process will fail to implement the Resolution taken by the Governing Body of the ITPGRFA."

Viviana Munoz from the South Centre, an intergovernmental think tank of developing countries based in Geneva, said: "I was perplexed that the Secretariat of the Treaty did not begin its presentation by highlighting farmers' rights under the Treaty but rather chose to present it as the final issue after several others. Farmers' rights are the core issue that the interrelations question is meant to address."

Laurent Gaberell from the Association for Plant Breeding for the Benefit of Society (APBREBES) also expressed disappointment with the outcome.

He argued that "the programme of the Symposium had diverged from the objective of the Governing Body Resolutions which was about examining the interrelations between UPOV and the ITPGRFA with a focus on farmers' rights. Instead, the programme examines in general the interrelations between UPOV and the ITPGRFA."

He also expressed concern that "the process had been taken over by the UPOV Secretariat and the programme did not include experiences of peasant farmer organizations, or the experience of Parties to the ITPGRFA that have implemented non-UPOV sui generis plant variety protection systems and thus were in a better position to fully realize farmers' rights".

BACKGROUND

The subject of identification of inter-relations emerged with the adoption in 2013 of Resolution 8/2013 on "Implementation of Article 9, Farmers' Rights" by the ITPGRFA Governing Body.

Motivated by concerns that the activities of UPOV and the World Intellectual Property Organization (WIPO) were undermining implementation of Article 9, the Resolution requested the ITPGRFA Secretariat "to invite UPOV and WIPO to jointly identify possible areas of interrelations among their respective international instruments".

Following the Resolution, in October 2014, the ITPGRFA Secretariat outlined in Notification GB6-028 a clear process for the identification of inter-relations, which involved, jointly with UPOV and WIPO, the convening of a small team of experts supported by a transparent, participatory and inclusive process.

In 2015, the ITPGRFA Governing Body adopted another resolution urging the Treaty secretariat to "continue with the process" thus endorsing the steps outlined in Notification GB6-028.

Thereafter, the Consultative Committee of UPOV took note of the developments at the ITPGRFA and agreed to invite Shakeel Bhatti, the Secretary of the Treaty, to make a presentation on the subject of inter-relations at the 91st session of the Consultative Committee.

In February of this year, more than 50 civil society and farmer organizations wrote to Bhatti, stating that the suggestion to hold a symposium whereby Contracting Parties present information on their experiences in implementing the UPOV Convention and ITPGRFA was inadequate for the identification of possible areas of inter-relations between the Treaty and relevant instruments of UPOV and WIPO.

The signatories of the letter urged the Treaty Secretariat to identify independent experts with extensive expertise on Farmers' rights to undertake an investigation on implementation of Article 9 by UPOV and WIPO.

DISCUSSIONS AT THE CONSULTATIVE COMMITTEE

Bhatti, the Treaty Secretary, highlighted that the ITPGRFA text has many inter-relations with plant breeding.

He explained Article 6 of the Treaty which concerns sustainable use of plant genetic resources for food and agriculture, and the multilateral system established by the Treaty which created a global gene pool for food and agriculture and which transfers material for plant breeding, via the signing of a standard material transfer agreement (SMTA), adding that the system was still being improved.

He also highlighted the Governing Body decision to launch global information system as well as the technology transfer platform that approved participation of the UPOV Secretariat in the platform.

With regard to Farmers' Rights, Bhatti explained Article 9 of the Treaty as well as the resolutions adopted by the Governing Body and that the Ad hoc Committee on Sustainable Use (ACSU) had identified a preliminary list of issues concerning inter-relations and forwarded the same to UPOV and WIPO, adding that it looked forward to receiving comments from UPOV members on the list.

With regard to the way forward, Bhatti proposed commissioning expert studies as inputs for the symposium for reporting to the Governing Body in 2017.

The APBREBES representative highlighted the findings of its paper on the "International Contradictions on Farmers' Rights" that had earlier been submitted to the Treaty Secretariat.

APBREBES argued that Farmers' Rights are a core component of the ITPGRFA and as such its full implementation is a prerequisite for achieving the Treaty's objectives.

Farmers' Rights includes the right to save, use, exchange and sell farm-saved seed and other propagating material, to participate in decision-making regarding, and fair and equitable sharing of the benefits arising from, the use of plant genetic resources for food and agriculture, APBREBES stressed.

These rights are according to the Preamble of the Treaty fundamental to the realization of Farmers' Rights, as well as the promotion of Farmers' Rights at national and international levels.

APBREBES said in its examination of the inter-relations with regard to Farmers' Rights, it found a number of contradictions hindering the realization of such rights.

APBREBES pointed to several examples of such contradictions.

"For example, countries that are members of the International Treaty had submitted their legislation to the UPOV Council for assessment of conformity with the 1991 Act of UPOV. And these countries were required to delete provisions in their plant variety protection legislation, which allowed exchange, and sale of seeds among small farmers as such provisions were inconsistent with the 1991 Act of UPOV," the APBREBES representative highlighted.

"Further since UPOV is engaged in providing technical assistance with regard to PVP, it is in a position to enable realization of farmers' right to participate in decision-making processes. Unfortunately, there are concerns that UPOV's activities may actually be enabling the non-fulfilment of that right."

She added, "Recently, AFSA, the Alliance for Food Sovereignty Africa, which is a pan African platform of CSOs, smallholder farmers and others, voiced out in an open letter how it was deliberately excluded from the process leading to the adoption of a Regional Protocol on PVP for the African Regional Intellectual Property (ARIPO) region which was supported by UPOV."

APBREBES also noted that there is existing literature finding UPOV Conventions to be incompatible with the realization of farmers' rights.

It referred to a 2015 study funded by the German Federal Ministry for Economic Cooperation and Development and published by GIZ which assessed the UPOV Conventions and its compatibility with the ITPGRFA.

The study concluded among others that, "it is difficult to see how an UPOV 91-based PVP system could be considered to advance the realisation of the Farmers' Rights as they are enshrined in ITPGRFA, especially for small-scale farmers. Rather, it results in restricting these rights in several ways."

APBREBES further noted that some UPOV members may disagree with the conclusion that there is a conflict between the UPOV instruments and the Treaty, and it is for this reason that it is important to have an open discussion, and to further understand different perspectives as well as to embark on further in-depth independent expert analysis of the issues that arise with regard to implementation of Farmers' Rights and the UPOV Conventions.

The majority of UPOV members are also members of the ITPGRFA, thus it would be important to ensure coherence and mutual supportiveness of these international instruments, APBREBES emphasized.

With regard to the symposium, APBREBES said that it should be regarded "only as one step in the process of identifying and addressing the interrelations and not an end in itself" and should ensure a balance of views of UPOV Members and of Parties to the International Treaty as well as adequate representation of civil society and peasant farmer organizations that are committed to the full implementation of Article 9 of the International Treaty as panellists in this symposium. The symposium should be open to the public and ensure full participation of delegates to the International Treaty.

APBREBES also urged the convening of a team of independent experts led by the Treaty to analyse the identified list of inter-relations and further supported by a transparent, participatory and inclusive process, as a symposium is only a forum where countries and other stakeholders can present their views and experiences and is not an arena for analysis.

With regard to the preliminary list of inter-relations, APBREBES stressed that it should include the preamble, Articles 6 and 9.1 of the ITPGRFA.

The South Centre said it was important to recognize the importance of both formal and informal seed systems and ensuring equity in farming systems, particularly in developing countries, and thus there is an urgent need for countries to take measures to protect and promote Farmers' Rights, in accordance with Article 9 of the Treaty and towards achieving the United Nations agreed Sustainable Development Goals (SDGs).

Countries through the SDGs are committed to tackling hunger not only by increasing agricultural productivity but also the incomes of small-scale food producers, in particular women, indigenous peoples, and family farmers, as well as by ensuring sustainable food production systems and resilient agricultural practices adapted to climate change as well as are committed to maintain the genetic diversity of seeds, and ensure access to and fair and equitable sharing of benefits from the utilization of genetic resources and associated traditional knowledge.

Protecting farmers' practices with respect to saving, using, exchanging and selling seeds and other propagating material is central to achieving these objectives, the South Centre added.

In stressing that the issue of inter-relations of UPOV and the ITPGRFA is crucial to advance the realization of Farmers' Rights, the South Centre further said that the result from the discussion on inter-relations should be to facilitate the enactment and implementation of legislation by members of UPOV and Contracting Parties of the ITPGRFA that promotes the full and fair exercise of Farmers' Rights.

It further suggested to extend the list of identified interrelations to include the Preamble, Articles 6 and 9.1 of the Treaty.

It supported the call for deeper analysis on the issue of inter-relations between UPOV, the ITPGRFA, and WIPO as well as the establishment of an independent experts' committee to undertake a report. It also supported the idea of a symposium that was participatory and open and included participation of farmer organizations.

Bolivia, which also chairs the discussion on the United Nations Declaration on the Rights of Peasants, said it places high importance on consistency with various instruments and it supported the idea of a study and a symposium with broad and open participation of various interest groups.

Switzerland said that it supported the idea of a symposium as a first element but it would be important to include other stakeholders in the discussion such as civil society, farmers, and academia with a clear interest in the issues.

It added that the symposium should not be restricted to the exchange of views but should also discuss the list of inter-relations in order to deepen the understanding of the inter-relations and to promote coherence in the implementation of the different instruments.

It further said that the holding of a symposium is not sufficient and supported an independent expert study that analyses issues and serves as common basis for deliberation.

Brazil said that it recognized the enormous contribution of farmers that constitutes the basis for food and agriculture, adding that a symposium presents a valuable opportunity for raising awareness and that broad participation was desirable to enable stakeholders to bring in additional points of view. It expressed openness in getting information on the expert group mentioned in the Notification GB6-028.

Colombia supported the idea of holding a symposium, adding that there was need for clarity on the application of the rights of farmers under the UPOV Convention, the right of farmers to conserve, exchange, and sell farm saved seed and concept of rights of farmers, and acknowledgement of farmers as breeders. This will allow for different interpretation to protect Farmers' Rights and breeders' rights.

Norway said that the process thus far had identified key issues but stressed that there was a need for further analysis to explain the content and consequences of inter-relations. It supported a study by an expert group as well as the convening of a symposium.

Ecuador said that it advocates greater participation and transparency to achieve a fair balance, adding that its Constitution refers to food sovereignty and conservation. It said there was a need to support the symposium and to address the role of indigenous peoples, and called for it as well as Articles 6 and 9.1 to be added to the list of inter-relations.

Argentina supported the holding of a symposium. It also said that a few topics that should be added are how do we make compatible "Farmers' Rights" with "privilege of farmers" as established by the UPOV Convention. It sought clarification on the notion of farmers, adding that there are a lot of farmers, big and small.

According to diplomatic sources, the US expressed its concern over the discussion taking place since it was not a signatory to the ITPGRFA and opposed the suggestion of conducting any study on the issue of inter-relations.

 


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