1 Santilli, Juliana. “Farmers´Rights”, Chapter 8 of Santilli, Juliana

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Transcript of 1 Santilli, Juliana. “Farmers´Rights”, Chapter 8 of Santilli, Juliana

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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