Executive Summary

Name of Report: The Surin Rice Seed ESC Human Rights Report

Executing Body: The Northeast Thailand Human Rights Working Team in association with the Sub-Committee for ESCR of the National Human Rights Commission of Thailand; The Faculty of Law, Khon Kaen University

Dates of Research: April-May 2007

Coordinated with: Surin Farmers’ Support (SFS) and the Surin Rice Fund

Method of Research: Interviews with villagers in Donlaeng Tai, Prasat District, Surin, on issues surrounding indigenous rice and Jasmine rice variety 105, cultivation practices, and their relationship to culture

Purpose of Report: This report aims to provide a means for villagers to voice their concerns and to explain the key connection between indigenous seeds, food, and culture. We believe that the argument that links seeds, food and culture is essential for world citizens to understand, as the repository of diversity and sustainability on this planet resides with those closest to the land. Violations, lack of protection, or the failure to fulfill these rights affects not only the food security but also the livelihoods and culture of small scale farmers worldwide. If they fail, or if economic pressures cause them to fail, then the planet as a whole, and all of its inhabitants, are at risk.

Rights Examined: International Covenant on Economic, Social, and Cultural Rights (ICESCR):

Article 11.1: Right to FoodArticle 15 (a) and (c): Right to Culture

Summary of Finding: In agricultural communities, indigenous seeds represent a key long-term relationship between people and the land. Communities base many decisions on the seeds they grow such as when and where things are planted, how labor in households is organized, what religious ceremonies and other aspects of culture are carried out, and what people eat on seeds. This relationship can be interpreted as the ‘culture’ referred to in Article 15 and what the spirit of Article 15 of the ICESCR is intended to cover. Therefore, by promoting the monocropping of Jasmine 105 rice at the expense of other rice varieties, and by not actively encouraging the use and preservation of indigenous seeds, the Thai State has failed to fulfill its obligations as specified under Articles 11.1 and 15.1a and 15.1c of the ICESCR.

Section I: Introductory Comment

The International Covenant on Economic, Social and Cultural Rights has yet to play a significant role in Thai political discourse.

This report was written to serve a variety of purposes. First, human rights have proven to be an effective tool for mobilizing and empowering communities and their movements. Second, this report hopes to frame the struggles, past and present, of these communities into a framework understandable to national and international audiences ั from communities facing similar problems, to policy makers and international human rights organizations. Third, the Thai government, though a signatory to the ICESC since 1999, has yet to submit a report to the United Nations.

This report aims to serve as a tool to encourage the Thai government to follow through on its commitment of 1999, by complying with the obligations set forth in the Covenant, through legislative, and other means.

The primary purpose of this report is to illustrate to the communities of Northeast Thailand the purpose, effects, and possibility of producing a human rights report. This report is intended to serve as the first step in a larger process of developing the capacity of communities to produce their own human rights reports.

The Northeast Thailand Human Rights Working Team (NTHRWT) is made up of representatives from the dam-affected people’s network, the slum network, the anti-mine network, the HIV/AIDS network, the alternative agriculture network, and the land and forest network. Students and staff of the Council on International Educational Exchange (CIEE Thailand) have helped organize the meetings and provided the main impetus in researching and drafting the report, while there has been some assistance from the Faculty of Law at Khon Kaen University and the Sub-Committee on Economic, Social, and Cultural Rights of the National Human Rights Commission of Thailand.

The NTHRWT started with a test ESCR report template, which was tested in Surin province, looking at two issues: one involving the prohibiting of villagers to enter a forest their livelihoods depend on, and the other examining the relationship between the rights to indigenous rice seeds, food, and culture in southern Surin province.

With these two draft reports, participants will take into consideration the lessons learned from this exercise, and lay out a master ESCR report template. With that template in hand, networks and individual communities will be invited to draw up their own ESCR report plans.

Hopefully, these efforts will be mentored by the National Human Rights Commission and a leader in the ESCR movement in Thailand, Amnesty International.

The hope is that there will be fully constituted ESCR reports ready to be launched on World Human Rights Day, 10 December 2007. With reports in hand, the working team will move into

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phase two of the project—how to use the reports to create greater compliance and create movements around ESCR.

Please contact us at ____________ with any suggestions or questions.

The Northeast Thailand Human Rights Working Team

May 2007

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Section II: Background

Traditional Farming Methods

Traditionally, farmers in NE Thailand (Isaan) were almost entirely self-reliant. They grew or gathered all of their own food, made their own clothes and built their own houses. They only purchased the necessities that could not be made from the resources around them—such as metal items like ploughs, hoes and knives.

Rice was, as it is today, a staple crop. In fact, rice has been grown in Thailand for at least 5,000 years by small-scale farmers (Panyakul 2003). In the past, the land dictated which rice variety was grown. Because of the many different soil and environmental conditions found throughout the region, Isaan farmers planted a variety of indigenous rice types which can be divided into two categories: field rice and paddy rice. A typical family would grow at least 3-5 different varieties. Families would generally grow varieties that had different maturation periods so as to ensure a rice supply throughout the year and minimize the labor needed at any one harvesting period. Families largely relied on their own labor but would receive help from neighbors when needed.

The diverse system of farming that was traditionally practiced by farmers minimized the destructive effects of drought. By growing both field rice and paddy rice, farmers grew seeds that had varying levels of drought tolerance. Field rice is more resilient and can grow with little rainfall, therefore, it was especially important for survival in drought years. Growing a diversity of rice varieties also minimizes pest and disease problems because they generally target one crop variety.

At the end of each growing season, farmers would save seeds from the plants that had the most desirable characteristics, such as pest or drought resistance and best overall appearance and taste. Farmers regularly borrowed and exchanged seeds with their neighbors and families. This practice increased the diversity of their rice fields and allowed them to grow new varieties without ever purchasing seeds. The selection of seeds over generations helped to ensure that each variety adapted to the local environment and was able to withstand potentially destructive environmental changes.

Jasmine 105

Changes in agriculture came with the Green Revolution, a multifaceted, government promoted strategy that emerged during the 1950s to restructure agriculture along industrial lines. With its philosophy that modernizing agriculture would raise the standard of living for the world’s poor, the Green Revolution promoted the production of cash crops for export. At this time, the Thai government began projects aimed at collecting and improving rice varieties. The Rice Department collected Jasmine rice seeds from around the nation to search for the best breeding varieties. Through this process, researchers discovered that the 105th ear of the 199 ears collected from Chacherngsao province just east of Bangkok, possessed the most desired characteristics for planting and consumption. In 1959, they registered this fragrant rice as “Khao Dowk Mali 105” which is also referred to as “Hommali 105” (Jasmine 105).

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The Ministry of Agriculture marketed Jasmine both domestically and internationally and after a few years, Jasmine commanded a premium price in the market.  The Ministry began advising Isaan farmers to grow Jasmine 105 and farmers heeded because they received a higher price at the mills. As the market demand for long grain rice varieties like Jasmine increased, rice mills switched their machinery that could only process long grain rice.

Currently, there are many forces that make it difficult for farmers to grow and trade indigenous varieties. It is difficult for farmers to grow indigenous rice when all their neighbors are growing Jasmine because the rice season now revolves around the Jasmine harvesting cycle.  Extra laborers are only available to assist with the Jasmine harvest and most farmers drain their fields after harvesting the Jasmine rice, making it difficult to grow rice varieties that mature after that time. Additionally, indigenous varieties can no longer be processed on the machines most commonly found at mills.1 Furthermore, restrictions at mills regarding the purity of Jasmine rice prevent local farmers from growing indigenous varieties in close proximity to Jasmine rice.  Mills insist that Jasmine rice not be mixed with other types of rice.  If any mixed rice is found when the mills inspect the farmers' rice, they will assume that all the rice is mixed and will give the farmer a lower price for their rice. 

The mills command such strict policies because Jasmine white rice is one of the best known Thai rice varieties worldwide. As such, the Thai government continues to create campaigns aimed at promoting Thai Jasmine rice to international and domestic markets. Different strategies include intensive advertisement campaigns abroad, creation of a Thai Hom Mali Rice Brand in 2005, and a strategy by the Ministry of Commerce to turn Thailand into the world’s leader in exports of food products by the year 2008. As a part of this plan, the Ministry of Agriculture and Cooperatives has determined that in order to “improve each [rice] strain’s quality as well as make its cooking properties more consistent and in line with the demand of the local and overseas rice markets,”2 they will zone the rice cultivating regions by rice strain. Jasmine rice has been zoned to grow in the Northeast of Thailand. Jasmine rice is also promoted through Thai agencies like Thai Airways International, the Tourism Authority of Thailand, and the Thai Restaurant and Hotel Associations. Extensive promotion campaigns have successfully created a significant international market for Thai Jasmine Rice.3

Donlaeng Tai Village

Donlaeng Tai Village is located in the Tahmaah sub-district of Surin Province near the Cambodian border. Historically, Donlaeng Tai has been largely self-sufficient, much like other Isaan villages. They have practiced traditional farming methods including growing and saving indigenous seeds, 1 There is also widespread concern about the corruption of rice mills. Villagers in Donlaeng Tai voiced concerns and problems about mills having the power to suppress prices and dictate what they pay the farmers. The Politics of Rice (การเมอืงเรื่องขา้ว ภายใต้อำานาจรฐัทนุผูกขาด) examines much of this corruption and concluded that the government has largely overlooked these problems. By not strictly regulating rice mill policies and actions, the government has not demonstrated that they are pro-actively working to ensure a secure and stable livelihood for small scale farmers. Conditions and obstacles such as these illustrate how the livelihoods of these farmers are at risk because of the vulnerabilities created by this method of rice farming which the government strongly promotes.2 Thailand’s Rice Strategy 2004-20053 Thai exports of Jasmine rice in 2004 totaled over 2 million tons which was up from almost 1.5 million in 2002.

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growing a variety of different rice breeds, as well as different plants and vegetables.

Like communities across Isaan, Donlaeng Tai village was affected by government promotion of Jasmine 105. About 40 years ago, villagers remember the State first coming into the village and recommending new commercial varieties of rice seeds. It wasn't until 15 years later that state officials came in and began promoting Jasmine 105. Fertilizers were also promoted at this time. Companies would set up demonstration plots to show the effectiveness of their fertilizers. They would also provide small amounts of fertilizer to village leaders. Farmers in Donlaeng Tai Village began to abandon their indigenous rice varieties for the more profitable Jasmine rice.

Currently, there are approximately 70 households in Donlaeng Tai Village—all of which rely on rice farming for their livelihood. Most rice varieties in the village have been lost or extremely diminished. This loss of biodiversity follows the trend of the province, in which only an estimated 27 of the over 180 native seed varieties are grown today. For example, Samrat Tohngiam from Donlaeng Tai believes he is the only person left growing one indigenous rice type, Nianguang. He grows this rice because part of his field is unsuitable for growing Jasmine rice—a popular reason for those still growing indigenous varieties. While Samrat does grow Nianguang, most of his field looks like his neighbors’ fields, brimming with Jasmine 105. It is this variety that serves as the main source of income for Donlaeng Tai villagers.

Along with the variety of rice they grow, villagers in Donlaeng Tai also share one particular hardship: debt. Villagers report that almost all households are in debt between 10,000 and 100,000 baht to the Bank of Agriculture and Agricultural Cooperatives (BAAC). Most debt was incurred from the costs of increased inputs required for Green Revolution farming techniques.

Unlike other farmers in Isaan, many villagers in Donlaeng Tai are reducing their debt by transitioning to organic farming with the help of the SFS. They are one of a number of communities that run their own organic rice mill which sells through a fair-trade market to France and the United States. Rice from 20 of the Donlaeng Tai households holds certification from the Organic Agriculture Certification of Thailand while another 26 households have received the less strict Surin Province Organic Certification.

Another rice program that Donlaeng Tai villagers participate in is the Thai Government's Jasmine Seed Program. This program, started in the early 1990s, works as follows: for every bag of Jasmine seeds that a farmer buys, the government guarantees to buy back twenty bags of Jasmine rice grains at the end of the season which they then use as seed. The government then distributes these seeds to other communities around Isaan. Villagers have calculated the average earnings from this program and estimate that they earn about 400-500 baht per rai.

While both the organic and non-organic farmers in Donlaeng Tai mostly grow Jasmine rice, there have been recent attempts by members of the village to begin using indigenous seeds and seed saving techniques in an attempt to save the remaining indigenous rice varieties still present in the village. An SFS seed study group works to encourage farmers to grow indigenous varieties and to save their seeds. Part of this effort includes sponsoring seed-saving workshops and working collectively to select and save both indigenous and Jasmine seeds using a hand-made seed selector. Despite these efforts, Phakphum Inpaen says the group still lacks the capital and government support

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it needs to expands its project. Villagers still feel that at least half of their fields must be dedicated to growing Jasmine rice in order to earn enough income to support themselves and their families.

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Section III: Chronology of Events1935/2478 - The government first promotes specific rice varieties, such as Pung Ngan, Thong Raya Dam, Khaw Thod Long, Jumpa Song, Pin Kaew, Bang Pra, Nam Dok Mai and Nang Tanee.4

1941/2484 – The Han Tra Rice Research Station in Ayuthaya province opens, becoming the first rice research station in Thailand.

1950/2493 – The Rice Variety Improvement Project begins. Researchers from the US Department of Agriculture serve as consultants on the project. The project aimed to select and improve rice varieties for better quality and higher yields.

1950/2493– Ministry of Agriculture initiates a nationwide collection of rice varieties to search for the best Jasmine breeding seeds.

1954/2497 – The Ministry of Agriculture establishes the Rice Department, responsible for rice research, selection and breeding, as well as other technological knowledge related to rice.

1959/2502 – Seeds from the105th ear of Jasmine rice collected from Chacherngsao Province are certified by the Department of Agriculture as “Khao Dowk Mali 105” or “Hom Mali 105.”

1960/2503 – The International Rice Research Institute (IRRI) is established and the office is built in Los Bayos, Phillipines.

1960s – The State recommends new commercial rice varieties to Donlaeng Tai Village.

Early 1980s – The state brings Jasmine rice to Donlaeng Tai village.

Early 1990s – Donlaeng Thai Villagers become involved in the Ministry of Agriculture Rice Seed Development Project.

1993 – The Rice Tech company applies for trademark registration with the US Patent and Trademark Office for the rice trademark name “Jasmati.”

1998 – Over 500 Thai farmers march from the government house to the US Embassy in Bangkok demanding that Rice Tech and the US government stop infringing on the name of Thai Jasmine rice.

2001 – The Thai government sends “a fact finding mission” to IRRI to investigate the conduct of IRRI concerning the transfer of Thai Jasmine rice seed to Chris Deren, a US researcher.

2001- U.S. researchers initiate the “Stepwise Program for Improvement of Jasmine Rice for the United States” which aims to develop Jasmine rice that can be grow in the United States.

20035 – The Thai Rice Foundation was established to undertake projects and programs on Thai rice.

2004 - The Commerce Ministry launches a plan to make Jasmine rice prominent in global markets, directly boosting the Kingdom's exports and maintaining its prestige as the world's biggest rice-exporter.

4 Panyakul 20035 Unclear when the TRF was founded – villagers cite 2003 or 2004

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2005 – The National Centre for Genetic Engineering and Biotechnology (Biotec) develops new breeds of Jasmine rice that are tolerant of drought, pests and disease.

2005 – The Thai Government launches the Thai Hom Mali Rice Brand.

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Section V: Analysis and Assessment

Right to Food (ICESCR, Articlen11)

By only promoting Jasmine 105 and not indigenous seeds they have failed to fulfill their responsibilities as a signatory to the ICESCR. The government’s success in locating international markets for Jasmine 105 led to monocropping and a subsequent loss of crop biodiversity as villagers were encouraged to forsake their indigenous rice seeds.

Without the government actively promoting indigenous seeds, biodiversity was lost and therefore core components of the local culture were lost. While the actions of the State during the Green Revolution cannot be held accountable to the ICESCR, their actions since 1999 must be kept to the standards presented within the document. Unfortunately since the signing of the ICESCR, the government has not taken steps to protect the people’s right to food and culture. Any actions they have taken in protecting seeds have been inaccessible to the people whose lives these seeds affect.

In Donlaeng Village, many of the core obligations outlined in the General Comments on The Right to Food have been fulfilled. That is, the community has access to the, “minimum essential food which is sufficient, nutritionally adequate and safe,” and have been ensured “their freedom from hunger.” However, the government has failed to comply in two key aspects: they have failed to ensure long term food security and have not pro-actively engaged in activities that strengthen people’s access to and utilization of resources and which ensure their livelihood. The problems facing Donlaeng Tai Village are not unique and the state must address them in order to achieve the “progressive realization” of the right to food as outlined in the ICESCR.

Article 11.1 - The Right to Food1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.

Section 7 of General Comment 12 7. The concept of adequacy is particularly significant in relation to the right to food since it serves to underline a number of factors which must be taken into account in determining whether particular foods or diets that are accessible can be considered the most appropriate under given circumstances for the purposes of article 11 of the Covenant. The notion of sustainability is intrinsically linked to the notion of adequate food or food security, implying food being accessible for both present and future generations. The precise meaning of “adequacy” is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions, while “sustainability” incorporates the notion of long-term availability and accessibility.

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Section 15 of General Comment 7 on the Right to Food spells out clearly the obligations of the State. First, the State must “respect existing access to adequate food,” which means states may not “take any measures that result in preventing such access.” Second, the State’s obligation to protect means that the State may not act, nor allow others to act, in any way that may “deprive individuals of their access to adequate food.” Third, the State is obligated to fulfill, which “means the State must pro-actively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, including food security.”

Determination of Compliance or Violation of Article 11

In assessing the State’s compliance the following questions, taken from the wording of Section 7, must be explored.

I. Did the State take appropriate measures to ensure the realization of Article 11.1?II. Did the State act to ensure adequate food or food security for the present generation?III. Did the State act to ensure adequate food or food security for future generations? Has the State acted to ensure the long-term availability and accessibility to food?IV. Did the State respect existing access to adequate food? Did the State take any measures that resulted or may result in preventing such access?V. Did the State allow other enterprises to deprive individuals of their accses to adequate food?

I. Did the State take appropriate action to ensure the realization of Article 11.1?

Assessment: The Thai government is provisionally in compliance. That is, the community has the “minimum essential food which is sufficient, nutritionally adequate and safe,” and has been ensured “their freedom from hunger.”

II. Did the State act to ensure adequate food or food security for the present generation?

Assessment: The Thai government is provisionally in compliance for the same reasons as stated above.

III. Did the State act to ensure adequate food or food security for future generations? Has the State acted to ensure the long-term availability and accessibility to food?

Assessment: The Thai government has failed to adequately act.

It could be provisionally argued that the State has fulfilled this obligation for Jasmine rice farmers since today’s food-secure population could provide food for the generation to come. That is, by actively seeking international markets for Jasmine rice, the government has allowed a higher income for such farmers, which allows for better housing and greater access to food. However, closer examination reveals that the State’s actions threaten “long-term availability,” a key term in Section 15 of General Comment 12. The nature of the promotion of Jasmine 105 is neither environmentally nor economically sustainable and therefore threatens the food security of future generations.

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The government-promoted monocropping of Jasmine 105 is unsustainable for many reasons and the difficulties inherent in this type of farming can be seen most clearly when comparing it to a farming system which grows many rice varieties.

1. Jasmine 105 is more susceptible to drought and flooding.That is, Jasmine 105 requires a steady water level and is therefore hit hard when there are weather fluctuations. As Naichusak Saijaem explained, “if it rains too much, the Jasmine rice dies; if it is too dry, the rice dies.”

2. Jasmine 105 is especially vulnerable to pests.This is both because of the monocropping practice and because the rice’s fragrant scent is especially attractive to insects. “If there were four to five kinds of rice growing, the average bug would choose hom mali,” says Phakphum Inpaen. In years with bad pests, farmers estimate that up to 10% of the crop might be lost, as compared to the 3% they reported when growing a diversity of rice varieties.

3. Crop diseases are more common since growing Jasmine 105.Two years ago, farmers in Donlaeng Tai had an outbreak of fungus that badly damaged their rice. This fungus affected only Jasmine 105, compromising 30-40% of their total crop. The economic effects of lost crops are felt by small scale farmers, especially in a community like Donlaeng Tai where the average family already has 50,000 baht of debt.

4. Jasmine 105 is not native to Northeast Thailand and has, therefore, not adapted to local soil conditions.Unlike indigenous seed varieties, which have developed and adapted to suit local soil conditions, villagers have recognized that their soil is not well suited for growing Jasmine 105. As a result, some type of fertilizer, either organic or chemical, is required. So while Jasmine rice has the highest buying price of 2,480 baht per rai, it also has the highest inputs cost at 1,817 baht per rai6.

If farmers grow multiple rice varieties, the effects of drought, flooding, pests and disease are minimized because the environmental conditions that affect one type of rice will not harm, and may even nourish other rice varieties. Simply stated, farmers and their crops are at greater risk if monocropping Jasmine 105 than those who plant a diversity of indigenous seeds. Growing one seed variety is like putting all eggs in one basket. Firstly, the gamble is made that no pest or environmental condition will present itself which destroys that crop. Secondly, the farmer becomes totally dependent on the market price of that one crop. This is especially true for Jasmine 105 which requires high input costs.

Yet, the Thai government is continuing the promotion of Jasmine 105 at the expense of indigenous varieties by expanding international markets and encouraging Isaan farmers to continue growing Jasmine 105 in their 2004-2008 Rice Strategy. While there are no laws prohibiting the use of indigenous seeds, the market conditions and heavy government support for Jasmine 105 make it difficult for small scale farmers to continue to grow their indigenous seeds. The monocropping of Jasmine 105 makes these small scale farmers completely dependent on the Jasmine market as well as

6 การเมอืงเรื่องขา้ว ภายใต้อำานาจรฐัทนุผูกขาด

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the bodies that sell the seeds and buy the rice. This dependence illustrates the vulnerabilities facing small scale farmers’ livelihoods.

It is actions such as these that jeopardize the farmers’ economic situations and the security inherent in biodiverse farming methods, thereby jeopardizing the availability of food in the future.

IV. Did the State respect existing access to adequate food? Did the State take any measures that resulted or may result in preventing such access?

Assessment: The Thai government has failed to comply.

In Section 7 of General Comment 12 the definition of “adequate food” is “determined by…climatic and ecological conditions.” Therefore, State policies and practices which did not include the promotion of indigenous seeds suited for the local “climactic and ecological conditions” were in violation of the States duties. See the reasons stated under the section above for a full explanation of this argument.

V. Did the State allow other enterprises to deprive individuals of their access to adequate food?

Assessment: The Thai government is provisionally in compliance.

Conclusion on Right to Food

As a signatory to the International Covenant on Economic, Social and Cultural Rights, the Thai government has an obligation to respect, protect, and fulfill its citizens' right to food.  While the government has not taken measures to actively deny the villagers of Donlaeng Tai access to food or their indigenous seeds, they have failed to actively fulfill the right to food by not promoting the use of the indigenous seeds that would ensure villagers adequate food for generations to come.

While we have explored the State’s incompliance in regards to their obligations to respect and protect the adequacy and sustainability of food, one could more explicitly consider the States’ obligations under Section 15 of General Comment 12 to fulfill this right. The State must “pro-actively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, including food-security.” The scope of this report has examined the relationship between and effects of agricultural policies on livelihoods and food security. The ICESCR recognizes the inherent relationship between the right to food and other rights provided for within the Covenant. Therefore, the government’s responsibility to ensure the right to food must be emphasized and enforced as the level of compliance can either impede or promote the realization of these other rights.

Right to Culture (ICESCR, Articlen15)

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Agriculture in general and rice farming in particular is so central to the lives of the Donlaeng Tai villagers that their culture, as well as their livelihoods, are inseparable from their food. Seeds are the fundamental and initial resource of these communities; therefore, when agricultural policies limit farmers’ access to their resources, they are essentially inhibiting the culture that has become ingrained in the grains.

As a source of nutrition, rice makes up 55-80 percent of Thai people’s total calories consumed, 2 or approximately 332.6 - 385.2 pounds of rice per capita.7 To say, “Let’s eat,” in Thai translates literally to “Eat rice.” Since rice is such a major source of sustenance and livelihood, it has also become a basis for culture. Festivals are tied to the rice season, with Phi Ta Haek paying homage to rice spirits during land preparation and Boon Koon Larn honoring the Mother Spirit of rice during the harvest. The government policies that led to a loss of rice biodiversity have, therefore, affected local cultural practice. The government has taken little action to protect or promote indigenous seeds and, consequently, has taken little action to promote the culture surrounding these seeds.

In fact, the actions the State has taken to protect indigenous seeds have not made these seeds accessible to the people and have actually made the seeds more vulnerable to exploitation from outside parties. This includes the government’s participation in the International Rice Research Institute (IRRI), a large seed bank in the Philippines, and their construction of national seed banks.

While indigenous seeds have largely disappeared from villages, many communities are unaware that over the past century governments have been storing seeds in seed banks around the world. Villagers cannot access the seeds from within these banks, even those that have come from their communities. Additionally villagers have been restricted from participating in the decisions regarding who can use them. Without recognition of communities as the collective owners of their natural resources, and their right to access these resources and participate in their use, communities are unable to freely and fully participate in their culture as outlined in Article 15.

Thai critics have therefore argued that since the advent of the Green Revolution government agricultural policy has “invariably destroyed rural self-reliance, self-sufficiency and local seed varieties. Technology was transferred from villages to scientific labs, germplasm was transferred from agricultural fields to gene banks, [and] agricultural research centers were set up to destroy local seed varieties.” 8

In order to fulfill their responsibilities under Article 15 the State must recognize communities’ rights to these seeds as they form the basis of culture. “Communities have the right to preserve and protect,” said Phakphum Inpaen, “If someone wants to use our seeds, they should have to ask for permission from this community.”

Article 15.1a – The Right to Take Part in Cultural life

1. The States Parties to the present Covenant recognize the right of everyone:a. To take part in cultural life;

7 Panyakul, 20038 Santasombat, 1970

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There is currently no General Comment or formal elaboration provided for Article 15.1a within the Covenant. However, two years prior to their ratification of the ICESCR the Thai government pledged to honor communities’ cultural rights in Section 46 of the Constitution: “Persons so assembling as to be a traditional community shall have the right to conserve or restore their customs, local knowledge, arts or good culture of their community.” Additionally, in 1992 Thailand signed the Convention on Biodiversity, thereby pledging to:

Respect, preserve and maintain knowledge, innovations, and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising form the utilization of such knowledge, innovations and practices.

The Convention formally recognized the Thai State’s role in promoting local culture and knowledge for the benefit of sustainability and biodiversity. As already established, the local culture of indigenous seeds in Surin communities serves as an effective mechanism for fulfilling these obligations. The Convention also reaffirms the government’s role in promoting the content of Article 15.1 c—the participation in and sharing of the benefits of local knowledge holders in the use of their products—i.e. farmers and their seeds. Regardless of the seemingly vague wording of Article 15.1, Thailand has reiterated this right, as well as the other sections of Article 15, within these other obligations.

Determination of Compliance or Violation of Article 15.1a

When analyzing the compliance of the State to article 15,1a the following question should be raised:

I. “Did the State take appropriate measures to ensure the realization of 15.1a?”

Assessment: The State has failed to adequately act.

The government’s continued role in promotion of Jasmine 105 along with their failure to meaningfully promote indigenous seeds illustrates that appropriate measures have not been taken to ensure the realization of communities’ right to partake in cultural life. This connection between seed promotion and culture may seem distant to those unfamiliar with the local context, but for farmers it is clear and direct.

As already established, farmers in Donlaeng Tai traditionally practiced many rituals around the act of growing rice. These included ceremonies performed before transplanting rice seedlings, during the first ploughing, while transplanting the first rice seedlings and during the rice harvest. Traditionally, most community ceremonies also utilized specific varieties of rice. For example, when building a house, Nian Guang rice would be planted around the pillars to “help protect the house from dangers, bring good fortune and help the houses be there for a long time. All would go well for a family that used this rice for ritual purposes,” remembers Bancha Kabawnchalad. In some instances, villagers will buy a specific type of rice that is no longer grown in the village because it is so essential to the cultural practice.

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As the economic viability of traditional farming and indigenous seeds decreases, the possibility to continue the cultural practices associated with them, including saving and trading seeds, subsequently decreases. A fundamental element of the culture of Isaan farmers ceases to exist as they lose indigenous seeds. The absence of local seeds and traditional ceremonies has rendered former customs and knowledge inaccessible, especially for future generations.

Because of the strong connection between rice varieties and culture, in order to fulfill their obligations under Article 15.1a the State needs to pro-actively preserve the accessibility of these seeds in the local community.

15.1c – The Right to Benefit from the Protection of Moral and Material Interests

The States Parties to the present Covenant recognize the right of everyone:

c. To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

The General Comments for this article clarify that the author may be an “individual or group of individuals” and that any scientific, literary or artistic production “refers to creations of the human mind…such as scientific publications and innovations, including knowledge, innovations and practices of indigenous and local communities.” The farmers of Donlaeng Tai had developed, adapted and saved their indigenous seeds for generations. Regardless of actions by the State or by the villagers that led to their gradual disappearance, the farmers still remain the author of their creation (indigenous seeds) and have the right to be recognized and protected as such.

The State’s core obligations, which are to immediately be put into effect following ratification, are defined within General Comment 39.

1. The State must “take legislative and other necessary steps to ensure the effective protection of the moral and material interests of authors.”

2. The State must protect the rights of authors to be recognized as the “creators of their scientific, literary and artistic productions.” and object to “distortion, mutilation or other modification or, or other derogatory action in relation to their productions.”

3. The State must respect and protect the basic material interests of the authors…that are “necessary to enable those authors to enjoy an adequate standard of living.”

4. The State must ensure equal access to “administrative, judicial or other appropriate remedies enabling authors to seek and obtain redress.”

5. The State must balance the effective protection of moral and material interests with all other rights recognized in the Covenant.

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Determination of Compliance or Violation of Article 15.1(c)

When assessing the compliance of the State to its core obligations detailed by section 39 of General Comment 17, the following questions must be answered:

I. Did the State take appropriate measures to ensure the realization of 15.1c?II. Did the State take legislative or other steps to ensure effective protection of the moral and material interests of this community and their indigenous seeds?III. Did the State act to protect the rights of authors to be recognized as the creators of their productions?IV. Did the State object to any distortion, mutilation or other modification of or other derogatory action in relation to the author’s production?V. Did the State respect and protect the basic material interests which are necessary to enable those authors to enjoy an adequate standard of living?VI. Did the State ensure equal access to administrative, judicial or other appropriate remedies enabling authors to seek and obtain redress when the author’s interests have been infringed?VII. Did the State act to balance protection of protection of the moral and material interests with the state’s obligation to fulfill other human rights?

I. Did the State take appropriate measures to ensure the realization of 15.1c?

Assessment: The State has not taken appropriate measures to ensure the realization of the protection of indigenous seeds by small scale Thai farmers. The elements involved in ensuring the realization of this article are presented below.

II. Did the State take legislative or other steps to ensure effective protection of moral and material interests?

Assessment: The Thai government has failed to comply.

The General Comment 17 explicitly states that the protection of moral and material interests detailed by the ICESCR differs from those later created under the World Trade Organization’s Treaty on Intellectual Property Rights (TRIPS).

The TRIPS agreement, upheld by neo-liberal economic policies around the world, binds each country to set up a domestic system that works to recognize intellectual property rights from other countries. Intellectual property rights are the rights granted to a creator of a good that prevents others from using the invention without authorization. Copyrights, trademarks, geographic indication, industrial designs, patents, layout-designs, and undisclosed information (like trade secrets) are all considered intellectual property and are thus covered by the TRIPS Agreement.9

Through the neo-liberal approach to international patent rights, the TRIPS Agreement has favored

9 “Intellectual property: protection and enforcement,” WTO

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capital-intensive methods of improving plant varieties, such as genetic modification, which in turn has favored capital abundant countries. Under the TRIPS Agreement, trade advantage is granted to developed nations because traditional cultivation methods, such as keeping seeds for the next year’s harvest to improve a crop, are not recognized as patentable. Therefore, the centuries of cultivation in Basmati rice in India or Jasmine rice in Thailand, for example, do not qualify the plants for patents. As one analyst explains, “because our patent laws do not recognize this traditional form of breeding as ‘prior art,’ sophisticated biotechnological corporations have successfully sought patents on Basmati rice by genetically modifying it so that the rice is able to grow in the United States.”10

Developing countries are often the source of the genetic resources used by breeding programs in developed countries. The absence of a property rights regime protecting the genetic diversity of developing countries coupled with the potential profits of selling a patented plant variety lead to a high incidence of what is termed bio-piracy, the “unauthorized and uncompensated taking of biological resources.”

Thailand has developed its patent laws and legislation in order to meet international and domestic demands to adhere to TRIPS. In 1979, Thailand passed their first patent law, which excluded patents on products essential to peoples’ livelihoods. Since then, Thailand has been economically and politically pressured by countries and corporations, from the United States and elsewhere, to tighten their patent laws and remove these restrictions. In 1992, the State proceeded to remove patent restrictions placed on medicines and electronic productions, though the patenting of plants and animals were still excluded. In 1999, Thailand passed the Plant Variety Protect Act (PVPA) that was designed to promote plant breeding for agricultural purposes and protect native and wild plant varieties. Some may argue that the PVPA represents a step towards the government’s progressive realization of their obligation; however, this act has been criticized as protecting corporations above protecting the indigenous property of local communities11.

The 1997 Thai Constitution is more in accordance with General Comment 17 in that it recognizes the right of traditional communities to “conserve or restore their customs, local knowledge, arts or good culture of their community.” (Section 46) Unfortunately, there has been little additional legislation to ensure that this right is protected and as they relax restrictions on patent rights, they are furthering their non-compliance.

In addition to a lack of pro-active legislation, the Thai government has placed Thai rice seeds—including several indigenous varieties—in seed banks that are inaccessible to communities. Thailand has placed seeds in the International Rice Research Institute (IRRI)12, the National Rice Seed Bank Center and more recently the Thai Rice Foundation. These seed banks do not share seeds with their communities of origin, nor do they involve communities in decisions regarding the use of their seeds.

The threat that this brings to the moral and material interests of villagers are illustrated by research

10 Woods, 200211 Samabuddhi 200212 The IRRI was established in 1960 by the Ford and Rockefeller Foundations in cooperation with the Philippines government. The IRRI supports scientists working on rice research while providing further training and education to both agricultural and academic communities. They also oversee a gene bank that holds approximately 5,500 varieties of Thai rice – making Thailand IRRI’s fourth-largest donor.

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started in 1995 by Chris Deren, a professor at the University of Florida’s Everglades Research and Education Center in Belle Glade, and Neil Rutger, of the United States Department of Agriculture. This team is attempting to produce a mutation of Jasmine rice that will grow across America, including Florida’s Everglades, while retaining the characteristics derived from conditions in Thailand.

Deren and Rutger obtained Jasmine rice seeds for this research from the gene bank of the International Rice Research Institute (IRRI) without following two mandatory procedures:

1. Alerting the donor and owner of the seeds (the Thai government) 2. Requiring lenders to sign an official contract that ensures against future patenting.

If high-quality Jasmine was able to be grown in the United States it would disadvantage poor farmers by working towards a market in which Thai farmers who developed Jasmine for generations, cannot compete. As the Action Group on Erosion, Technology, and Concentration (ETC), an information and analysis organization headquartered in Canada, states, “Far from eradicating poverty, the transfer of Jasmine to the USA would create poverty.”13

Just as this research was conducted without the knowledge of the community from central Thailand who had developed the particular Jasmine seed for generations, similar research could threaten the ability of communities from the Northeast to benefit from and have decision-making power in the use of their indigenous seeds.

While the Thai government has started to take seeds back from IRRI in the last three years, communities have yet to benefit from this transition. The recaptured seeds are stored at the Thai Rice Foundation under Royal Patronage. In 2002, significant protest was needed to force the Office of Rice to let communities in Surin access five or six types of the returned seeds varieties. During transport the seeds were not kept at low enough temperatures and were unusable at the time of arrival. SFS has requested that seeds be resent with new varieties as well, but they have not received them.

Since the government has no policies ensuring the return of seeds to communities or recognizing communal ownership of seeds, none of their actions to protect indigenous seeds in seed banks can be seen as working to comply with Article 15c. By providing rice seeds to organizations such as IRRI, and maintaining their own Rice Bank, the Thai State has only acted to protect the country as a whole but has not effectively protected particular Thai communities’ control of their own resources and moral and material interests.

III. Did the State act to protect the rights of authors to be recognized as the creators of their productions?

Assessment: The Thai government has failed to comply.

The State’s actions to protect indigenous seeds as explained above do not respect or recognize Thai community’s rights to be the authors of their indigenous seeds. By giving seeds without

13 ETC Group News Release 2001

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communities’ consent to seed banks, the State has effectively not recognized communities’ rights to ownership of seeds. The seed banks’ policies deny communities access and participation, further restricting their right to ownership. The State has not acted to object to existing policies or present legislation that would ensure that communities are protected as authors and therefore has not acted to protect the communities’ right to recognition.

IV. Did the State object to any distortion, mutilation or other modification of or other derogatory action in relation to the author’s production?

Assessment: The Thai government has failed to comply.

The State has not taken to steps to oppose the use and modification of indigenous seeds. However, the State has several times acted to protect Jasmine 105 seeds from similar modification.

The Thai State has objected to distortion or modification of Thai seeds when the international market for Jasmine 105, and therefore national interest, is threatened. This happened both in the case involving Chris Deren, Neil Rutger, and IRRI and in their petition of Ricetec’s trademark of ‘Jasmati Rice.’ In the former instance the State lobbied IRRI in 2001 after discovering that the organization had transferred their Jasmine rice seeds to U.S. researchers without following proper procedure. The State also took pro-active measures in 2001 when RiceTec Inc. started selling “American Jasmine rice” under the name “Jasmati.”46**** The State filed a complaint with the U.S. Federal Trade Commission against the American company that had registered a trademark for “Jasmati” rice. When the ruling permitted the sale of “Jasmati”, the Thai government spent around $4,000 to acquire a new trade name of Hom Mali rice (the Thai word for Jasmine rice).

While the Thai government has objected to the distortion and modification of Jasmine 105, they continue to conduct and support research on indigenous seeds without recognition of the communities of origin. “We can see only big companies and all the big universities gain the benefits of using our seeds,” says Phakphum Inpaen, “[they did it] without telling us and we didn’t get anything out of it. The true owner didn’t get anything out it.” Similarly, Samrat Tohngiam feels that “even for government research we should be part of deciding if the government can take the seeds.”

The Thai government has implemented a number of rice variety improvement programs and has introduced over sixty varieties. Nearly half of them are indigenous varieties while the other half are improved varieties which are usually derived from indigenous varieties.14 The Thai government has not created a system in which communities can give authorization for, participate in or directly benefit from the research. This illustrates the State’s lack of concern for protecting communities’ indigenous seeds from distortion or modification, by parties both within and outside of the country.

V. Did the State respect and protect the basic material interests which are necessary to enable those authors to enjoy an adequate standard of living?

Assessment: The Thai government has failed to comply.

14 Panyakul 2003

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The State has not complied with protection of basic material interests needed for local communities to presently enjoy adequate and sustainable food—as seen in Article 11 and the General Comment on the Right to Food. As previously argued, the lack of protection of indigenous seeds will threaten local communities’ abilities to enjoy adequate and sustainable food in the future. Please refer to the assessment of domestic compliance for Article 11.1.

VI. Did the State ensure equal access to administrative, judicial or other appropriate remedies enabling authors to seek and obtain redress when the author’s interests have been infringed?

Assessment: The Thai government has not adequately complied.

An assessment of the States’ actions to ensure equal access to remedies is difficult to make. However, the State has certainly not ensured small Isaan communities’ access to appropriate remedies. Villagers from Surin Province have had to protest government agencies in order to ask for IRRI to return seeds, request government action to protect Thai seeds and to return indigenous seeds to their communities of origin. The inability of villagers and communities to access administrative or judicial remedies in a meaningful manner has led villagers to stage protests in order to address infringements on their rights.

Conclusion

The State has not taken appropriate or effective measures to ensure Thai agriculture communities’ control or protection of their indigenous knowledge and seeds. Traditional rice farming practices have been a central part of Thai culture for thousands of years. As such, it is essential that farmers be able to preserve and protect their indigenous knowledge and practices. The State has not been proactive in ensuring the recognition of communities as authors of their seeds or preventing or objecting to the unauthorized use and modification of indigenous seeds. Communities have struggled to access and use their seeds stored in seed banks and have received limited assistance from the State. This inaccessibility affects farmers’ abilities to ensure their own long-term food security, secure their livelihood and participate in cultural acts surrounding their indigenous seeds and knowledge.

General Recommendations

In order to take steps toward the progressive realization of the Right to Food and the Right to Culture, the Thai government must take steps to promote the use and preservation of indigenous seeds throughout the country. Regardless of the steps taken, throughout the development and implementation of any program or policy regarding indigenous seeds, community participation is critical.

1. The State should create educational programs promoting the use and preservation of indigenous seeds in agricultural communities.

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2. The State should provide financial support of existing community organizations that protect and support the use of Indigenous seeds.

3. The State should create an independent organization (similar to the NHRC) that oversees agricultural policies and provides alternatives to mainstream policies.

4. The State should recognize communities’ ownership rights over their indigenous knowledge and traditions through both legislation and government actions.

5. The State should continue to bring Thai seeds back to Thai seed banks.

6. The State should create policies that provide communities access to the indigenous seeds located within seed banks or other research institutions.

7. The State should involve communities within institutions that control seeds in order to allow for them to participate in the decisions regarding the conditions under which the seeds are used.

8. The State should create local community-based seed banks that could be managed by the communities to control and distribute indigenous seeds.

Sources

Inpaen, Peung, et al. Personal Interview. 24 April 2007.

Inpaen, Phakphum, et al. Personal Interview. 25 April 2007.

“Intellectual property: protection and enforcement,” WTO <www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm>

Panyakul, Vitoon. Thai Rice: The Rice of Freedom, (Bangkok: Green Net, May 2003), 13.

Samabuddhi, Kultida.  "Plant Variety Protection Act: NGO says law puts native strains at risk; Crops developed over decades may be lost."  Bangkok Post.  20 Sep 2002. <http://www.sea-user.org/news-detail.php?news_id=907>

Santasombat, Dr. Yos. “Sui Generis Rights: History of a Struggle,” BioThai 1 January 1970, < www.biothai.org/cgi-bin/content/rights/show.pl?0003>

Tohngiam, Samrat, et al. Personal Interview. 25 April 2007.

Thailand’s Rice Strategy 2004-2005: To Become the “World’s Kitchen” <http://www.bangkokbank.com/download/Thailand_Rice_Strategy.pdf>

“U.S. Acquisition of Aromatic Thai Rice Breaks Trust,” ETC Group News Release, 30 October

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2001, <www.etcgroup.org>

Woods, Michael. “Food for Thought: The Biopiracy of Jasmine and Basmati Rice,” Albany Law Journal of Science and Technology,” 2002, 6.

การเมอืงเรื่องขา้ว ภายใต้อำานาจรฐัทนุผูกขาด “Politics of Rice.” 2005.

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