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Santilli, Juliana. FarmersRights, Chapter 8 of Santilli, Juliana. Agrobiodiversity and

the Law: regulating genetic resources, food security and cultural diversity, Earthscan,

London, 2012

AGROBIODIVERSITY AND THE LAW, JULIANA SANTILLI

CHAPTER 8: FARMERS RIGHTS

8.1. HISTORICAL BACKGOUND

The realization of farmers rights is essential to ensure the conservation and

sustainable use of agrobiodiversity, and a cornerstone of the International Treaty on

Plant Genetic Resources for Food and Agriculture. Farmersrights include access to

land and agrarian reform, water, natural resources, energy, appropriate technology and

education, health care, political participation and freedom of association, among others1.

Although these rights are intrinsicably linked. However, in this book, we will focus on

farmersrights as set out in article 9 and in other provisions of the International Treaty,

since we believe that such instrument provides an important opportunity to construct

and implement farmersrights at the national level, since it is the first legally binding

international agreement that explicitly recognizes farmers' rights. We do not understand

that farmers rights are limited to those recognized by the International Treaty it must

be stressed but these can be a starting point.

Currently, there is not an international instrument that deals specifically with

farmersrights, and the responsibility for realizing farmers rights, as set out in the

International Treaty, rests with national governments, according to their needs and

priorities. There are no legally binding international standards on farmersrights. Via

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Campesina (an international movement of peasants) has already called for an

International Convention on the Rights of Peasants, arguing that there are already

conventions to protect vulnerable groups of people, such as Indigenous peoples,

women, children and migrant workers2. However, such international convention still

does not exist, and contracting parties to the International Treaty must adopt national

laws and measures to protect and promote farmersrights. Next, we will show how the

concept of farmers rights developed internationally and reached the formulation in the

treaty. Then, we will analyze how farmers rights can be implemented at the national

level, and more specifically in developing countries.

The expression farmers rights was coined in the 1980s by Pat Mooney and

Cary Fowler, from the non-governmental organization Rafi3, to highlight the valuable

contribution of farmers for the global genetic pool and food diversity. They defended

the recognition of farmers rights at the FAO Commission on Plant Genetic Resources

as a measure for North-South equality and as a counterweight for plant breeders rights,

which already existed and were legally enforced. According to Mooney (2011),

international NGOs insisted that farmers varieties were the product of farmer genius

and should not be treated in any way as being less than varieties produced by the public

or private sector4 Since then, the expression farmers rights became widely used, and

was included in several international instruments, but with few concrete results.

Farmers rights were formally recognized for the first time in 1989, when the

FAO Conference adopted Resolution 5/89, which endorsed farmers rights as rights

originating from past, present and future contributions of farmers to conservation,

development and availability of plant genetic resources, particularly those from centers

of origin/diversity. These rights were vested in the international Community5, as

trustee for present and future generations of farmers, for the purpose of ensuring full

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benefits to farmers, and supporting the continuation of their contributions, as well as the

attainment of the overall purposes of the International Undertaking on Plant Genetic

Resources for Food and Agriculture, in order to: a) ensure that the need for conservation

is globally recognized and that sufficient funds for these purposes will be available; b)

assist farmers and farming communities, in all regions of the world, but especially in the

centers of origin and diversity of plant genetic resources, in the protection and

conservation of their plant genetic resources, and of the natural biosphere; c) allow

farmers, their communities, and countries in all regions, to participate fully in the

benefits derived, at present and in the future, from the improved use of plant genetic

resources, through plant breeding and other scientific methods."

Resolution 5/89 considers that: a) in the history of mankind, unnumbered

generations of farmers have conserved, improved and made available plant genetic

resources; b) the majority of these plant genetic resources come from developing

countries, the contribution of whose farmers has not been sufficiently recognized or

rewarded; c) farmers, especially those in developing countries, should benefit fully from

the improved and increased use of the natural resources they have preserved, d) there is

a need to continue the conservation (in situ and ex situ), development and use of the

plant genetic resources in all countries, and to strengthen the capabilities of developing

countries in these areas. Resolution 5/89 was the first international instrument to

recognize farmers rights, but it was not legally binding. It was adopted as an annex of

the International Undertaking on Plant Genetic Resources for Food and Agriculture,

along with Resolution 4/89, which also recognized plant breeders rights as provided for

under UPOV (International Union for the Protection of New Varieties of Plant). As

Andersen (2005) points out, recognition of Farmers' Rights (under Resolution 5/89) was

clearly motivated by the need to create acceptance for the formulations on plant

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breeders' rights, particularly among developing countries. Nevertheless, opponents of

plant breeders' rights gained recognition of farmers' rights in exchange for something

that already existed, i.e. plant breeders' rights. Two years later, a new resolution (3/91)

decided that farmers' rights would be implemented through an international fund on

plant genetic resources, to support plant genetic conservation, particularly, but not

exclusively, in the developing countries. This fund, however, never materialized, which

created frustration among developing countries.

In 1992, Agenda 21, a comprehensive plan of action to be taken globally,

nationally and locally to promote sustainable development, approved during the United

Nations Conference on Environment and Development (UNCED), also stressed the

need to strengthen the Global System on the Conservation and Sustainable Use of Plant

Genetic Resources for Food an Agriculture by, inter alia, taking further steps to realize

farmers' rights 6

. In the Nairobi (Kenya) Conference which approved the agreed text of

the Convention on Biological Diversity, on May 1992, Resolution 3 also recognised the

need to seek solutions to outstanding matters concerning plant genetic resources, in

particular: a) access to ex situ collections not addressed by the Convention, and b)

farmers' rights. CBD does not explicitly recognize farmers rights, but sets forth, in its

Article 8 (j), that knowledge, innovations and practices of local communities and

indigenous populations should be respected and application of this knowledge should be

encouraged by means of approval and participation of its holders and benefit sharing

with local and indigenous communities. In 1996, the Global Plan of Action for

Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture,

also included, among its long-term objectives the realization of farmers rights, at the

national, regional and international levels. In 1999, a study by the Economic and

Social Council about the right to adequate food submitted to the UN Human Rights

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Commission, held that farmers' rights should be given attention by the human rights

community and promoted, since our future supply of food, and its sustainability,

depend on such rights being established on a firm footing.

Although the concept of farmers rights has been incorporated into many

international instruments, there was never consensus as to its meaning, the extent of its

content and the adequate way to implement it. Some arguments for the recognition of

farmersrights are listed below:

1) It would be a measure of equity between the holders of plant germplasm (farmers,

especially those living in centers of diversity of agricultural crops, in tropical and sub-

tropical countries) and the holders of agricultural biotechnology (based mainly in the

northern countries). There would be a moral obligation to ensure that farmers are

compensated for their contribution to conservation of agrobiodiversity. While

intellectual property rights in the form of patents or plant breeders rights

compensate breeders and encourage them to develop new commercial varieties, there is

no compensation and/or support for farmers to continue to conserve and sustainably use

plant genetic resources. Furthermore, inte