(from Vocabulary of Commons, article 61)
by Suman Sahai
- 1 The agro-biodiversity commons
- 1.1 The value of the agro-biodiversity commons to agriculture and food security
- 1.2 Genetic diversity and livestock breeding
- 1.3 Gender and agro-biodiversity
- 1.4 Challenges to agro-biodiversity from diverse sources
- 1.4.1 Globalisation of the food system and marketing
- 1.4.2 The replacement of local varieties by improved or exotic varieties and species
- 1.4.3 Challenges to local knowledge
- 1.4.4 Population increase in developing countries and agribusiness in the developed world
- 1.4.5 Catastrophes and climate variation
- 1.4.6 Flawed policies
- 1.4.7 Agro-biodiversity loss through new technology and IPR
- 1.5 Fencing the commons
- 1.5.1 Intellectual property right (IPR)
- 1.5.2 TRIPS and biodiversity
- 1.5.3 IPR over biological materials
- 1.5.4 UPOV
- 1.5.5 CoFaB as developing country alternative to UPOV
- 1.5.6 UPOV is against developing country interests
- 1.5.7 TRIPS plus
- 1.5.8 Impact on biodiversity and communities
- 1.5.9 Primacy of CBD over TRIPS
- 1.5.10 Biofuels and the commons in India
- 1.6 Legal support for the commons
The agro-biodiversity commons
The Earth’s genetic resources are a common inheritance of all people. They must be shared and held in trust for the human race and for the animals, birds, insects and other living creatures that live with us. In many developing countries, as in Africa and many parts of Asia, nearly 70 to 80% of the people depend on natural resources like biodiversity for their food and livelihoods. As human beings discovered the many properties of the biodiversity around them, they learnt to use this biodiversity in wide-ranging ways. An important kind of biodiversity emerged out of this process of human interaction—agricultural biodiversity or ‘agro-biodiversity’. This agro-biodiversity, along with the knowledge associated with it, is a key component of the global genetic commons.
Agro-biodiversity of all food species is a vital sub-set of general biodiversity. It provides the foundation for the food and livelihood security of billions of people, not just for local communities but also for industrial agriculture. Agro-biodiversity is the first link in the food chain, developed and safeguarded by farmers, herders and fishers throughout the world. It is the result of the innovation, careful selection and scientific development undertaken by farmers, herders and fishers over millennia. The sustained management of these diverse biological resources, and the passing to successive generations of the indigenous knowledge of its properties, resulted in an ecologically balanced system that served communities across the world for centuries. It is now coming under threat.
- Crop varieties, livestock breeds, fish species and undomesticated (wild) resources within field, forest, and rangeland and including tree products, wild animals hunted for food and plants and animals in aquatic ecosystems.
- Natural undomesticated species involved with production ecosystems that support food cultivators including soil micro-biota, pollinators, bees, butterflies, earthworms, and natural predators of pests.
- Undomesticated species in the larger environment that are part of ecosystems that support food production. These could be agricultural, pastoral, forest and aquatic ecosystems.
Agro-biodiversity results from the interaction between the environment, genetic resources and the management systems and practices used by culturally diverse peoples resulting in the different ways land and water resources are used for food production and income generation. It includes the variety of animals, plants and micro-organisms which are necessary to sustain key functions of the agro-ecosystem, the structure and processes that enable it to support agriculture and food production and foster the food security of diverse people across the world. Agro-biodiversity has spatial, temporal and scale dimensions especially at agro-ecosystem levels. Almost all agro-ecosystems in the world are ‘man-made’ and most have been to some extent modified or cultivated by human activity for the production of food, for income and for livelihood security.
Agro-ecosystems may be identified at different levels, for instance, a field, crop, herd, pond, a farming system, a land-use system or a watershed. These can be aggregated to form a hierarchy of agro-ecosystems. Ecological processes can also be identified at different levels. Valuable ecological processes that result from the interactions between species and between species and the environment include, inter alia, biological processes like the microbial breakdown of biomass and those which maintain soil organic matter and fertility. Water quality and climate regulation are also influenced by ecological processes, for instance, the micro-climates created in different forests with varying canopy types.
Very importantly, the interaction between the environment, genetic resources and management practices may guide the evolutionary process. This could involve such processes as introgression from wild relatives, hybridisation between cultivars, mutations, and natural and human selections. These result in genetic material like crop varieties and animal breeds that are well adapted to local conditions and adapted to withstand the likely abiotic and biotic variation to occur there. Agro-biodiversity is therefore not only the result of human activity. Human life per se is dependent on it not just for the immediate provision of food and other goods, but for the biological health of land that will sustain food production and for the maintenance of the wider environment.
Agro-ecosystems are extremely diverse. They comprise polycultures, monocultures, and mixed farming systems, including crop–crop (rice–wheat); crop–livestock systems (rice–fish), agro-forestry, agro-silvo-pastoral systems, aquaculture as well as grasslands, pastures and fallow lands. Some of the key functions needed to maintain stable, robust, productive and sustainable agro-ecosystems include the following:
- Biological processing of organic matter and recycling of nutrients to maintain soil fertility and sustain plant and consequently animal growth.
- Filtering and breaking down pollutants to enable clean and healthy air and water.
- Protection and conservation of soil and water resources.
- Moderation of climatic effects such as maintaining rainfall patterns and modulation of the water cycle.
- Sequestration of CO 2 by plants to reduce global warming.
- Absorption of solar energy by the land and its subsequent release.
- Maintenance of productive plant, fish and animal populations.
- Maintenance of landscapes and habitats.
Rural communities in environments where intensive agriculture cannot be practiced rely on a wide range of crop and livestock types. This helps them maintain their livelihoods in the face of sub optimal soils, biotic and abiotic stress like disease and uncertain rainfall, fluctuation in the price of cash crops and socio-political upheaval. Many minor or underutilised crops are frequently found in proximity to the main staple or cash crops. Yet they are neglected and little effort is made to either conserve them or mainstream them for domestic use or the market. During times of stress like drought or flood, such under utilised plants can play a very important role in food production systems at the local level. Plants that will grow in infertile or degraded soils, and livestock that will survive on little fodder are crucial to the survival strategies of communities.
Indigenous knowledge and culture are an integral part of agro-biodiversity, because it is the human activity in agriculture that shapes and conserves this biodiversity. Biodiversity has been protected over generations because the cultural diversity associated with it was retained. Utilising indigenous knowledge systems, cultures in many parts of the world have built production and life support systems that use and conserve biodiversity. Monocultures, by contrast, have severed links with any cultural context of the biodiversity they use. Their production systems consume and exploit biodiversity. They do not conserve it.
Agro-biodiversity and Indigenous Knowledge
Indigenous knowledge is the information that people in a given community have developed over time. It is based on experience and adapted to the local culture and environment and is continuously evolving. It is embedded in social structures. Different groups of people, ethnic groups and clans hold different knowledge. Women and men often possess very different skills and knowledge of local flora and fauna.
Indigenous knowledge, and gender differences within that knowledge, are key factors that shape and influence plant and animal diversity. Such knowledge can help increase the relevance and efficiency of agro-biodiversity management and conservation efforts at different levels.
Indigenous knowledge continues to be an important asset for resource poor people to sustain their livelihoods.
The value of the agro-biodiversity commons to agriculture and food security
It is increasingly recognised that the traditional practice of maintaining genetic diversity in the field, within the community, is the key to long-term sustainable food production. In agriculture and forestry, genetic diversity can enhance production in all agricultural and ecosystem zones. Several varieties can be planted in the same field to minimise crop failure, and new varieties can be bred to maximise production or adapt to adverse or changing conditions.
Newer strategies for stabilising production involve the use of varietal blends (a mix of strains sharing similar traits but based on different parents) or multilines (varieties containing several different sources of resistance). In each case, the crop represents a genetically diverse array that can better withstand disease and pests. Despite these efforts, genetic uniformity still places some crops at risk of disease outbreaks and in some regions that risk is considerable. Some 62% of rice varieties in Bangladesh, 74% in Indonesia, and 75% in Sri Lanka are derived from one maternal parent.
In the United States from 1930 to 1980, the use of genetic diversity by plant breeders, accounted for at least half of the doubling in yields of rice, barley, soybeans, wheat, cotton, and sugarcane; a threefold increase in tomato yields; and a fourfold increase in yields of corn, sorghum and potato.
As important as genetic diversity is to increasing yields, it is at least as important in maintaining existing productivity. Introducing genetic resistance to certain insect pests can increase crop yields, but since natural selection often helps insects quickly overcome this resistance, new genetic resistance has to be periodically introduced into the crop just to sustain the higher productivity. Pesticides are also overcome by evolution, so another important agricultural use of genetic diversity is to offset productivity losses from pesticide resistance.
Wild relatives of crops have contributed significantly to agriculture, particularly in disease resistance. Thanks to wild wheat varieties, domesticated wheat now resists fungal diseases, drought, winter cold, and heat. Rice gets its resistance to two of Asia’s four main rice diseases from a single sample of rice from central India, Oryza Nivara.
Genetic diversity and livestock breeding
Genetic diversity is becoming increasingly important in forestry and fisheries, and the use of genetic resources in livestock breeding has markedly increased yields. The average milk yield of cows in the United States has doubled over the past 30 years, and genetic improvement accounts for more than 25% of this gain in at least one breed. Although not as dramatic, Asia has also seen a rise in milk output due to the improved genetic stock of dairy cattle.
For a variety of reasons, genetic diversity has been less useful in livestock breeding than in crop breeding. This is partly because maintaining livestock germplasm is tougher logistically than maintaining the genetic material of plants. An additional problem is that many of the closest relatives of domesticated animals are extinct, endangered, or rare, and thus unavailable for breeding. Their conservation should be a priority area for germplasm conservation.
Genetic improvement of forest species
Genetic improvement of forest species has also received less attention than crop improvement. Until recently, most timber was harvested from the wild and little attention was paid to breeding programmes. In addition, because trees are so long-lived, the rate of genetic improvement of tree species is quite slow. Tests and measurements of growth characteristics have been made for some 500 species (primarily conifers) over the years, but less than 40 tree species are being bred. Yet, impressive gains have been made with these species. In intensive breeding programmes, a 15 to 25% gain in productivity per generation has been attained for trees growing on high-quality sites without inputs of fertilizer, water, or pesticides.
Fish breeding has not been widely utilised to enhance yields because most of the fish eaten is caught from the wild. An exception is aquaculture. In one case, the domestic carp (Cyprinus carpio) was bred with a wild carp in the Soviet Union to enhance the cold resistance of the domestic species and allow a range extension to the north.
Maintaining and enhancing soil biodiversity for increased agricultural production
Improvement in agricultural sustainability will require the optimal use and management of soil fertility and soil physical properties. Both rely on soil biological process and soil biodiversity. This implies management practices that enhance soil biological activity and thereby build up long-term soil productivity and health. Such practices are of major importance in marginal lands to avoid degradation, and in degraded lands in need of restoration. Certain ecological principles are needed to enhance soil biological diversity and thereby increase agricultural production. These include supply of organic matter, distributing crop varieties to create a greater diversity of niches and resources that stimulate soil biodiversity and protecting the habitat of soil organisms.
Genetic diversity and food security
Genetic diversity gives species the ability to adapt to changing environments, and combat biotic and abiotic stress like pests and diseases, drought and salinity. This diversity is the raw material for breeding new varieties of crops, which provide the basis for more productive and resilient production systems that are better able to cope with such stresses as drought or overgrazing and can reduce the potential for soil erosion.
Subsistence farmers, particularly in marginal areas, are well aware of the relationship between the stability and sustainability of their production systems and the diversity of crops and crop varieties on their lands. This diversity is their greatest insurance against risk. Their management and use of a diverse range of varieties has helped them to survive under the most difficult conditions. Across Asia farmers have classically planted a mix of varieties in the same field so that if some fell victim to pest and disease, others would survive, ensuring that at least some grain could be harvested. Under monoculture conditions, the entire crop would be wiped out in the face of pest and disease, leaving the farmer nothing to take home.
By growing a range of different crops, farmers have a better chance of meeting their needs and reducing their risk. These might be crops that mature at different times or mixed cropping, when two or more crops are cultivated in the same field. Crop varieties can also be selected for foods with long shelf life to help to ensure a stable food supply throughout the year. Multiple varieties in the field provide a nutritionally balanced diet for farm families and diversify their income sources.
Gender and agro-biodiversity
Men and women play important, but different, roles in the management and conservation of agro-biodiversity. There is a gender differentiation in the roles and responsibilities in agriculture. Gender relations are also affected by the upheavals in the management and conservation of agro-biodiversity and local knowledge.
Cultural values continue to be the driving force of biodiversity management and conservation. Changing food culture and dietary habits can lead to the erosion of women’s knowledge of processing, preparation and storage. This ultimately leads to the erosion of plant diversity and family food security and health. Commercialized agriculture, modern technologies and innovations have created high external-input dependent systems. These often rely on introduced species and varieties, which have introduced changes in gender roles. Changes within the household composition affect available labour resources and have a profound impact upon agricultural management practices and agro-biodiversity. Shocks, such as HIV-AIDS, have an impact on gender relations and the interaction with other livelihood assets.
A gendered long-term strategy for the conservation, utilisation, improvement and management of genetic resources will require:
- Acknowledgement that there are gender-based differences in the roles, responsibilities and contributions of different socio-economic groups in farming communities.
- Recognition of the value of men’s and women’s knowledge, skills and practices and their right to benefit from the fruits of their labour.
- Equity in agricultural policies and implementation strategies to provide incentives for the sustainable use of genetic resources, especially through in situ conservation and improved linkages with ex situ conservation.
- Appropriate national legislation to uphold the principles of equity and protect ‘threatened’ genetic resources for food and livelihoods, guarantee their continued use and management by local communities.
- Ensuring that any benefits accrued from the commercial exploitation of genetic diversity is dedicated for the use of the local community.
- Incorporating gender issues in legal instruments that regulate the management and use of biodiversity, at national and international levels.
- Increasing the access of farm men and women to land and water resources, to education, extension, training, credit and appropriate technology.
- Participation of rural women and men in decision making.
Challenges to agro-biodiversity from diverse sources
Expansion of industrial and green revolution agriculture This includes intensive livestock production, industrial fisheries and aquaculture. Some production systems use genetically modified varieties and breeds. Moreover, relatively few crop varieties are cultivated in monocultures and a limited number of domestic animal breeds, or fish, are reared.
Till the nineteenth and early twentieth century, the agriculture sector had a sufficiently high autonomy vis-a-vis the other economic sectors. Today, the food industry which processes the raw foodstuff industrially is a highly concentrated trade sector and holds a dominating position. It demands standardised agricultural products that can be easily treated by machines.
With the industrialisation and intensification of agriculture, investments have escalated and pressure has increased to compensate these costs by means of higher productivity. This is being achieved through intensive land use systems, mechanisation, higher inputs of fertilisers and pesticides, monocultural cultivation and the breeding of high yielding crops and high performing livestock. These processes have caused massive ecological effects and unsustainable production and consumption patterns with impact, among others, on agro-biodiversity.
Globalisation of the food system and marketing
The extension of industrial patenting and other intellectual property systems to living organisms has led to the widespread cultivation and rearing of fewer varieties and breeds. This results in a more uniform, less diverse, but more competitive global product. As a consequence, there have been changes in farmers’ and consumers’ perceptions and preferences, marginalisation of small-scale, diverse food production systems that conserve farmer varieties of crops and breeds of domestic animals; reduced integration of livestock in arable production, which reduces the diversity of uses for which livestock are needed; and reduced use of ‘nurture’ fisheries techniques that conserve and develop aquatic biodiversity.
The replacement of local varieties by improved or exotic varieties and species
Nearly all countries confirm genetic erosion is taking place and that it is a serious problem. Genetic erosion usually occurs as old varieties in farmers’ fields are replaced by newer ones. Genes and gene complexes found in farmers’ varieties are not found in the new varieties. The total number of varieties is reduced when commercial varieties are introduced into traditional farming systems. Few systematic studies of the genetic erosion of crop genetic diversity have been done so far.
Challenges to local knowledge
Local knowledge and local institutions managing this knowledge are particularly challenged by rapid socio-economic and environmental changes. Areas of very rapid population growth, or a concomitant reduction in resources by external pressures, may require particular adaptations of new agricultural technologies to increase food production and the diversification of livelihoods, leading to irrelevance of local knowledge. Immigration can mean that the repertoires of knowledge, for agricultural/pastoral production and environmental conservation, are out of focus with the new set of opportunities and constraints. Gradual environmental changes, such as climate change, widespread deforestation, or land degradation, challenge the resilience and adaptability of local knowledge systems. Rapid commercialisation and economic shocks can also undermine local knowledge.
Population increase in developing countries and agribusiness in the developed world
With the vertical integration of the food chain and the linking of farmers’ fields to retail stores, companies began to standardise products, leaving no room for the banana that failed to measure to prescribed norms, the french beans that were too long or too short or wheat which did not have the prescribed gluten content. This led to severe genetic loss since such crop varieties gradually displaced from farmers’ fields.
Monocultures of crops to produce standardised fruit and grain and a few animal breeds with optimal food-product conversion efficiency have starkly reduced genetic diversity. This has resulted in the neglect and marginalisation of small-scale, diversified food production systems that are based on a diversity of farmers’ varieties and breeds of domestic animals, which may have low milk yields but can survive pests and disease and have a high ratio of fodder convertibility. These diverse gene pools varied with the eco-geography even within the same region and helped to maintain a broad genetic support base for agriculture.
Catastrophes and climate variation
One need look no further than the recent devastation caused by the Kosi river shifting course in Bihar. Apart from the loss of human life and assets, the crops of the area have been swept away and along with them, the traditional varieties that were cultivated there. In the coming days of global warming and climate change, cyclones and hurricanes will increase and with that will increase the probability of loss of genetic diversity. Whereas stocks of seed of the high yielding varieties (HYV) and parental lines of hybrids are carefully maintained, these can be restored but government agencies and the Indian Council for Agricultural Research (ICAR) have no provisions for conserving seed of traditional varieties, therefore, many traditional varieties could be lost forever.
Genetic diversity in animal breeds was starkly reduced in the 1960s and 1970s when the livestock improvement programme started in India. This consisted of importing cattle to cross with indigenous breeds and a large scale programme of artificial insemination using the imported cattle as one parent. During the artificial insemination programme, large numbers of bulls of indigenous breeds were culled or castrated to prevent them from impregnating the animals meant to be inseminated. This resulted in substantial loss of genes of less productive animal breeds, which had other traits like the ability to withstand extreme temperatures, resist diseases and survive in fodder scarce times.
In developing countries, loss of diversity has been reinforced by a donor policy that has promoted the import of exotic breeds and crossbreeding that threatens the survival of local breeds. Both the markets for agricultural inputs and for agricultural outputs have been increasing in size, thus feeding into a globalising food market that demands goods in huge consignments. In order to process them industrially, those agricultural goods need to be homogenous. Therefore, apart from the yields, it is the requirements of industrial cultivation, husbandry and processing (and to some extent consumer demand) that determine the breeding objectives rather than nutritional value, taste, improved stress resistance or adaptation to natural conditions.
Agro-biodiversity loss through new technology and IPR
Modern, highly selective breeding methods contribute to diversity loss making possible dangerous degrees of homogenisation. In livestock breeding artificial insemination, multiple ovulation and embryo transfer are applied to reproduce only a few top performers; a huge number of other individuals are thus excluded from breeding and the genetic distance within populations is correspondingly reduced. Hybrid breeding, with both animals (e.g. poultry, pigs) and plants (e.g. corn, rice), and cloning are methods used to reproduce genetically homogenous and high performing livestock and plant varieties. In the case of animals, impacts on the genetic pool are expected when traditional breeding gets replaced by the modern methods. Also, since hybrid breeding produces infertile breeds and seed, farmers cannot use the material to continue breeding/growing according to their own selection preferences. They are forced to rely on commercially bred/grown homogenous livestock and seeds, which they have to buy again every year. In plant breeding, ‘Genetic Use Restriction Technologies’ (GURTs) have the same effect.
The economic and technological developments detrimental to agro-biodiversity were partly supported by policies and governance structures such as intellectual property rights and sovereignty regimes that regulate access to genetic resources as well as seed and livestock breeding laws. These have encouraged high output and homogenisation, thus affecting the choice of plants and livestock.
At the coming into force of the World Trade Organisation (WTO), Trade Related Intellectual Property Rights (TRIPs), Intellectual Property Rights (IPR) laws had to be enacted over biological resources in all countries. Patents and stringent Breeders Rights restricted the free flow of germplasm and contain it in compartments that are increasingly privately owned. Two major IPR regimes can be distinguished that impact on agro-biodiversity in varying degrees. The first is patents, the other is Plant Variety Protection (PVP), applying only to plants. PVP systems based on International Union for the Protection of New Varieties of Plants (UPOV) are designed to diminish agro-biodiversity.
The criteria for variety protection—the so called ‘DUS requirements’ (for Distinct, Uniform i.e. homogenous and Stable), impacts on plant variability. Secondly, Plant Breeders, Rights, like other IPRs have indirect effects on agro-biodiversity by restricting access to genetic resources. The uniformity criterion aims at minimising genetic diversity within a plant variety, because to quality for a Plant Breeder’s Right the variety must be distinguishable from other varieties. This physical distinctiveness and uniformity, comes at the expense of genetic variability. In the field, uniform varieties are less able to withstand biotic and abiotic stress. At the same time, the uniformity criterion puts genetically diverse land races out of the purview of protection. The DUS criteria inclines breeders to develop varieties that have low adaptability and are highly adjusted to mono cultural production systems for large markets.
Fencing the commons
Intellectual property right (IPR)
For rural and tribal communities across the world, biodiversity has always been a local, commonly shared resource on which food and livelihood security depends. The process that began with the Uruguay GATT Round in 1986 to introduce new intellectual property laws was in effect, an effort to encircle the commons and move them from a domain of collective stewardship to a regime of private property, through enforcing patents.
Biodiversity has always been a common resource with societies developing a series of practices which fostered conservation and sustainable use. In the spirit of commons, local communities share seeds, medicinal and other economically useful plants with anyone who wishes to have them. The notion of ‘owning’ these resources or excluding anyone from its use, is alien to communities that have nurtured biodiversity and agro-biodiversity.
Innovation, which has constantly added value to the biodiversity commons, has always been collectively owned, even if there was a single innovator (rarely) and always shared. When conducting awareness programmes with communities about the dangers of biopiracy, the community tradition of sharing the resource prevents them from denying outsiders on collection trips. According to them, grazing lands, forests... belong to everyone... as do seeds, plants, butterflies, beetles, water bodies and their fish, reeds and aquatic life. In the concept of commons, no one is excluded. The ideal approach to maintaining the commons of seed/biodiversity/ agro-biodiversity, is to have no IPR on any kind of genetic resources. But if governments have given in to IPR regimes, the struggle to maintain the commons must at least insist on a sui generis law that India has framed, incorporating farmers rights, in place of patents.
In colonial times the commons were captured and community power usurped by the state as it appropriated for itself the forests, water and other common resources. Independent India embraced the Doctrine of Public Trust according to which individual property rights cannot be accorded on natural resources like rivers and forests but the era of globalisation is threatening to close the circle and an effort is on to privatise the commons again. Biodiversity is particularly hard hit as the biotechnology sector develops into a juggernaut. Industrial countries have technologies but they do not have access to the biological diversity, the diversity of genes to convert these technologies into products. The GATT/WTO process began the circling of the biodiversity commons with the proposed IPR regimes and the push to patent plants and genes that were embedded in the biodiversity commons. Turmeric, Aayahuasca, Neem, Basmati rice, Enola beans and hundreds of products belonging to local communities in different parts of the world were sought to be privatised by patents sanctioned under the WTO/TRIPS.
Countries must challenge the designs of corporations sneaking in through TRIPS to privatise the commons and ensure that IPR regimes do not allow the patenting of biological resources, plants seeds, gene or, microorganisms. India spurned patents on biodiversity and enacted a unique and progressive legislation called the Protection of Plant Varieties and Farmers Rights Act, 2001. This legislation empowers farmers by giving them rights that allow them to exercise full rights over their seeds. Empowering the community with such rights would enable their recovery of the commons.
Mahatma Gandhi encapsulated the philosophy of the commons in his advice that resource use should be restrained and based on equity. He said that ‘The earth provides enough for everyone’s need, but not for everyone’s greed’. In rural and indigenous communities across the world, the ‘ownership’ of resources is in the form of common entitlements and usufruct rights. This contrasts with the ownership of rights practiced in the European system, which are based on the concept of private property, which excludes everyone except the owner. The IPR regime proposed through the GATT/WTO is a European concept of exclusive property ownership as against the collective ownership practiced by local communities.
TRIPS and biodiversity
In the last decades there has been a distinct shift in the way biological resources are being treated. What was a ‘natural’ resource, accessible to all, has now become an ‘economic’ resource, to be privatised. In this process, resources jointly held and nurtured by communities, is converted to a private property owned by a few and withheld increasingly from the local communities.
This shift has been negotiated in recent international and national developments. Two major international agreements, the Agreement on TRIPS of the WTO and the United Nations Convention on Biological Diversity (CBD), with mutually conflicting approaches, are now shaping the domestic regimes of member states with respect to biological resources and associated indigenous knowledge. The agreement on TRIPS engenders privatisation of biological resources by allowing patents to be granted on biological materials and associated indigenous knowledge. On the other hand, the CBD acknowledges that local communities have rights over bio-resources and indigenous knowledge.
Article 27.3(b) of TRIPS has brought biological resources under the purview of IPR, hence providing for private ownership over bio-resources with exclusive commercial rights. Biological diversity has become the much sought after raw material of the life sciences industry. Whilst corporations in the developed world have mastered the techniques of recombinant DNA technology, the raw matter is located principally in the tropical and semi-tropical countries of the developing South. Not only the resources, but the associated knowledge of their properties are located within indigenous communities.
To gain access to biological resources, the life science corporations, through their governments, have extended the scope of IPR to biological materials at the global level. This development took place in the ‘Uruguay GATT Round’ that began in 1986 and concluded in Marrakesh in 1994. During this round, life forms and genetic resources were brought into the ambit of one system for IPR.
IPR over biological materials
The key element of the TRIPS agreements related to agricultural genetic resources is the requirement for WTO members to make patents available for any inventions, whether products or processes, in all fields of technology without discrimination. One reason for greater interest in patents is the rapid development of biotechnology in agriculture.
There are four options within Article 27.3(b). The first is to allow patents on everything. This would include all materials and all forms of technology. Secondly, to exclude plants, animals and biological processes, but not plant varieties. This means that whereas naturally found plants, animals and the natural biological process by which they are created, could be excluded from patents, crop varieties could not. The third option is to exclude plants, animals and biological processes from patenting and to introduce a special sui generis for the protection of plant varieties. A sui generis system allows the country to create a system of their choice that would enable the minimum protection agreed to in the WTO. The final option is to exclude plants, animals and essentially biological processes from patenting but not plant varieties, and to provide a sui generis right. This last would mean that plant varieties could be patented or protected by an independently created sui generis system. Most developing countries have chosen option 3. A sui generis system of protection is one adapted to particular subject matter, and allows countries to make their own rules for protection of new plant varieties.
Article 27.3(b) of TRIPS is perhaps the most controversial clause of the entire WTO agreement. It requires members to provide for the patenting of micro-organisms and genetically engineered organisms (‘non-biological and microbiological processes’) and WTO members are now in the process of defining their positions regarding the future of the provisions. There are indications that a few members like the US would like the sui generis option to be eliminated altogether, while most developing countries are preparing national legislation to implement it. There are proposals to treat UPOV as the only sui generis option for plant varieties. UPOV is not in the interest of developing countries since it does not have any rights for farmers. There is only one right, that granted to the breeder, which in today’s context is increasingly ‘the company’. Patents on seeds would severely restrict the farmers’ access to them, since they would have to buy fresh seed for every sowing. Women would be particularly disadvantaged under UPOV since their access to their own seeds ensures that they can contribute to food and nutrition for the household.
When the Uruguay GATT Round started in 1986, the US proposed broad coverage of patentable subject matter, including plants and living organisms. The developing nations not surprisingly, proposed the exclusion of plants from patent protection. At that time, the Europeans supported patents on plants but changed their position later since the European Patent Convention does not allow plant varieties to be patented. Plant varieties in Europe were protected by Plant Breeders Rights but the situation seems to be changing in favour of admitting patents as well.
The US introduced the Plant Patent Act in 1930. Under this Act, the breeder of any new and distinct variety of asexually reproduced plants may apply for a plant patent. Although the US encouraged plant breeders in other countries to seek similar protection for plant varieties, the United Kingdom did not follow suit, largely because commercial interests at the time were not strong enough to push for patents on plants. This changed in the 1950s. In 1956, the French government invited the governments of Western Europe to a diplomatic conference on the protection of new plant varieties. An international convention was finalised and signed by the member states, which ultimately led to the framing and adoption of the UPOV Convention in 1961.
The UPOV system started as a flexible system of protecting plant varieties with a Breeders Right. Farmers were granted exemptions from the Breeders Rights and could save seed from their harvest to plant the next crop. Scientists and researchers too enjoyed exemptions that allowed them to use breeder protected material to breed other varieties. However, through repeated reviews in 1972 and then 1978, the flexibilities granted to farmers and researchers were whittled away. Finally the 1991 UPOV convention has become like the patent system—a monopoly granting right which excludes farmers and refuses to acknowledge the role they have played in the creation of new plant varieties.
CoFaB as developing country alternative to UPOV
The UPOV model is both against farmers and against biodiversity. As an alternative to it, Gene Campaign and Centre for Environment and Development (CEAD) in 1998 drafted an alternative for developing countries to implement their Farmers and Breeders Rights. This treaty called the Convention of Farmers and Breeders, (CoFaB) seeks to fulfil the following goals:
- Maintain genetic diversity in the field.
- Provide for breeders of new varieties to have protection for their varieties in the market, without prejudice to public interest.
- Acknowledge the enormous contribution of farmers to the identification, maintenance and refinement of germplasm.
- Acknowledge the role of farmers as creators of land races and traditional varieties which form the foundation of agriculture and modern plant breeding.
- Emphasise that the countries of the tropics are germplasm owning countries and the primary source of agricultural varieties.
- Develop a system wherein farmers and breeders have recognition and rights accruing from their respective contribution to the creation of new varieties.
The UNDP Human Development Report (1999) commended CoFaB as an alternative to UPOV. Describing CoFaB as a ‘strong and coordinated international proposal’ which ‘offers developing countries an alternative to following European legislation by focusing legislation on needs to protect farmers’ rights to save and reuse seed and to fulfil the food and nutritional security goals of their people’.
UPOV is against developing country interests
There are potential conflicts between TRIPS patenting regime, CBD and the International Treaty on Plant Genetic Resources (ITPGR) of the FAO. These conflicts are widely seen as more political than legal in nature, and the US government has made early implementation of TRIPS a top priority of its foreign policy. These matters are likely to emerge as matters of dispute under the WTO’s dispute settlement system in the coming years.
UPOV 1991 conditions will significantly diminish the farming community’s capacity to be self-sufficient in seed and self-reliant as agricultural producers. It promotes the interests of commercial plant breeders in the North rather than the farming communities. UPOV requires plant varieties to be ‘distinct’ from other varieties, produce genetically ‘uniform’ progeny, and remain genetically ‘stable’ over generations. After the 1991 UPOV amendment, a new quality ‘novelty’ has been added to the minimal characteristics required. The uniformity requirement has potential to contribute to genetic erosion. In addition, the cost of maintaining UPOV certification is beyond the means of most farmer-breeders. Although peasant farmers have also cultivated plant varieties expressing desirable traits over time, their varieties rarely meet the UPOV requirements list. These conditions for a ‘Plant Breeders’ Right certificate’ under UPOV go contrary to the goal of enhancing genetic diversity. Furthermore, the kind of protection it grants is an exclusive monopoly right. This contrasts sharply with the broader goals of collective remuneration and benefit-sharing expressed in a number of other global agreements.
A number of influential bodies, including the WTO itself, are pushing for a narrowing of the sui generis option to one legislative model provided by the UPOV. UPOV is not mentioned in the TRIPS Agreement. Independent legal and economic experts have reiterated that UPOV should not be accepted as an effective sui generis system for TRIPS and that there is ample scope for manoeuvre, flexibility and national discretion in interpreting the sui generis option. The UPOV system promotes commercially bred plant varieties for industrial agricultural systems at the expense of more sustainable biodiverse systems. Since 435‘Plant Breeders’ Rights’ (PBRs) are only given for a variety that is genetically uniform, UPOV automatically discourages genetically diverse and locally adapted seeds.
Applying the TRIPS framework to bio-resources is against the interests of indigenous and farming women and men. Women are the most skilled in the use of bio-resources for food, medicine and other uses, and use these resources to improve the health and nutrition status of their families, as well as to earn some income. The TRIPS Agreement does not recognise that local communities have any rights over bio-resources and associated knowledge. It fails to acknowledge or protect farmers’ rights, explicitly recognised in the CBD and ITPGR. In addition, the TRIPS Agreement, unlike CBD or ITPGR, does not acknowledge the essential role of women in rural communities in conserving biodiversity. It does not make any provision to ensure benefit sharing from technology and innovation, or require any prior informed consent of the people (primarily women) whose knowledge is tapped for technological innovation.
Audacious as it is in its attempt to privatise biodiversity, TRIPS lays down only minimum standards of IPR protection. These standards were never really accepted by the industrialised countries and the trans national corporations who have been the real drivers of IPRs on biodiversity. The effort to bypass the multilateral process of the WTO and force stronger levels of IPR on developing countries who are the owners of biodiversity has taken the shape of Free Trade Agreements (FTAs) which are deals done bilaterally. Developed countries are negotiating special closed deals with governments of the South that establish much stronger requirements for IPRs on biological resources, than those agreed under WTO/TRIPS. These ‘TRIPS-plus’ standards are being introduced through a range of bilateral, regional and sub regional agreements.
The main elements of these bilateral treaties that make them TRIPS-plus are the following.
- No exclusions to patents TRIPS allows members to exclude plants and animals from their patent laws. But under bilateral agreements with industrialised countries, Jordan, Mongolia, Nicaragua, Sri Lanka and Vietnam have been asked to provide patent protection on plants and animals.
- Reference to UPO TRIPS makes no reference to UPOV, nor does it define ‘effective sui generis system’ granting some flexibility to member countries in choosing their IPR option. Requiring countries to sign onto UPOV 1991 in FTAs, is clearly TRIPS-plus.
Impact on biodiversity and communities
IPR regimes on bio-resources and the commercialisation of these for markets will result in resource depletion. Commercial interests that target bio-resources on a large scale for the market will threaten the resource base, and with it, the knowledge base developed around the bio-resources. The impact on women and through them, families, will be immediate. There is a steady depletion of rare medicinal flora from the hill regions because of collections being conducted by pharmaceutical companies. A subspecies of Taxus baccata, the Himalayan Yew tree in the Himalayan region is facing near extinction thanks to over exploitation for its the cancer curing properties. Large areas of the Kumaon and Garhwal Himalayas in India have been stripped of medicinal plants by head loaders collecting for foreign and Indian companies. This devastation of flora means that women lose the resources they need for use in home remedies to treat their families and their livestock.
Patents on seeds would take away the women’s ability to breed new, locally adapted varieties for food, healing and rituals. This would strike at food and nutritional security of families and also at the socio-cultural identity of communities. Women have bred varieties for special uses integral to local food habits and cultural and religious practices. Some varieties are offered to the gods at certain festivals. Still others play a role in rituals during marriage and death ceremonies.
When patents are permitted, there is currently no requirement for disclosing the source of the plant material, nor the key information lead for the claimed ‘invention’, that is the indigenous knowledge of the characteristics, say of the particular medicinal plant. Biopiracy is a misappropriation of the intellectual property of local communities. In the case of the patent on turmeric, or neem, the knowledge of the wound healing property or the bactericidal property of the respective plants was the basis of the ‘invention’ that was granted a patent by the US Patent and Trademark Office. The consequences could be twofold. Exercise of the patent in India could lead to corporate control over wound healing or antiseptic products derived from turmeric and neem. On the other hand if such products had export potential to the US, such an opportunity could be denied because the existing US patent could be used to block any imports.
Whether in the field of medicinal plants or in agriculture, it seems clear that women will be excluded from the decision making process. They will have less say in what will be planted in the field because seed availability will increasingly shift to crops with a single dominant trait. Women are likely to have fewer options and less flexibility to use bio-resources for multiple uses. Since participation in the cash economy to make up the loss in these sectors will either not be possible for women or place additional burdens on them, it is more likely that the ensuing deprivations will become permanent.
Primacy of CBD over TRIPS
There is a large body of opinion held by academia, politicians, and civil society groups all over the world, that IPRs should not be regulated under WTO at all. Refining the jurisdiction of TRIPS would be part of a more fundamental reassessment of whether trade policy instruments governing market access should determine national intellectual property regimes. In recent times, several platforms have demanded granting primacy to CBD over TRIPS. More and more nations should support this move and place this as a demand at the TRIPS review. The official Indian position has asked for a CBD–TRIPS linkage.
Demanding primacy for the CBD is justified and supported by Article 22 of the CBD which says: The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.
It is clear that the implementation of TRIPs is detrimental to the health of biological diversity and therefore its implementation must be made subservient to the conditions of the CBD.
Biofuels and the commons in India
The biofuel policy is yet another attempt to commandeer the commons for private interests. The Indian government has a National Policy for Biofuels. According to this, India is investing in Jatropha plantations to produce biodiesel as a supposedly clean fuel. It is argued that Jatropha will be cultivated only on wastelands, as though wastelands were barren lands where nothing grew and where miraculously Jatropha would. There is no such thing as wasted land in India. ‘Wasteland’ is a land classification referring to land that is not suited for traditional cultivation. These are common lands which the village community uses. Uncultivated land is used as grazing pastures on which the livestock depends for fodder. Wastelands are typically biodiversity rich and provide a range of useful plants and services (like water) to the village community. Among other things, wastelands provide fodder, leafy greens and wild foods, and most importantly, medicinal plants on which the rural community depends for its health and veterinary care needs.
The Biofuel Policy usurps the commons, taking away critical spaces and resources from the community to provide a resource to the elite. Diverting the biodiversity rich commons to produce fuel for the automobiles of the rich is unethical.
Legal support for the commons
Doctrine of Public Trust
The Doctrine of Public Trust (DPT) is a legal principle which asserts that certain natural resources are of such immense value to society as a whole that individual property rights to them is unjustifiable. DPT has its roots in the Roman Empire where it was deemed these resources, which included forests, seashores, rivers and air were gifts of nature and meant to benefit all of society regardless of wealth or stature. It was also decreed and that it was the state’s duty to preserve these commonly shared resources. British Common Law continued this legacy with the adoption of elements of DPT into the Magna Carta, but changed the principle of ownership, allowing the state to own these resources to a limited extent. The state however could not grant ownership to private entities if this was detrimental to the public. Indian Law is largely based upon English Common law and thus DPT has been carried over into Indian jurisprudence.
This was reaffirmed by the Supreme Court of India in the landmark case in Indian environmental law, M.C. Mehta v. Kamal Nath (M.C. Mehta v. Kamal Nath and others (Span Motels Case) 1997 (1) SCC 388). The court ruled that state owned lands which were leased out for the development of private enterprise must be returned to their natural ecological state if environmental damage had resulted from the said development. In their judgment the justices stated that ‘the doctrine of public trust is a part of the law of the land’ in India. The court held that the government’s role is not to act as the absolute owner of natural resources but merely to hold the land in trust for the public good. Therefore in the absence of any further legislation, the executor acting under DPT cannot relinquish the natural resources or transfer them into private ownership.
Under DPT, the state is entrusted with the duty to protect the resources on behalf of its constituents and to make certain that it is not given for private ownership, thereby denying the rights of the public to freely enjoy these resources. Thus the state has to ensure that the benefits derived from the resources which the people have been utilising as a historical commons remain undisturbed. Since society as a whole is the beneficiary, it would be inappropriate and ultimately criminal for a private entity to be allowed to put these resources to their private and commercial use. DPT provides ample legal space to insist that it is the state’s responsibility to ensure that Indian biodiversity is conserved and kept available for the use of the people who have historically enjoyed access to it and freely derived benefits from it. In the case of IPR regimes, under DPT, the Indian state cannot allow the alienation of common resources like biodiversity and agro-biodiversity through patents and hence allow (limited) ownership to pass into the hands of private entities.
PESA and FRA
The rights of the tribal people of India to access and utilise the genetic resources, which they have used for millennia, presents a challenge and an opportunity for the Government of India to protect the nation’s rich biodiversity as a commons. Forest management under British colonial rule in India as well as post-colonial independence rule was marked by its disregard for the rights of tribal peoples to utilise the products of the forest as they had for centuries. Most unjust and inequitable was the law which placed ‘forest’ lands under government control through eminent domain whereas tribal peoples living on their ancestral lands were said to be ‘encroaching’ on government land and needed to be removed.
These gross injustices were the target of a sustained campaign to rectify the situation. During the 1990s, the eminent domain of the government was challenged by civil society who argued that the rights of the tribal people over local resources were sacrosanct and therefore non-negotiable. They insisted that nothing short of constitutional recognition for these rights would suffice. This pressure resulted in the 73rd amendment to the constitution which advocated decentralised governance in rural areas. Based on the recommendations of the Bhuria Committee, the parliament passed a separate legislation in 1996 as an annexure to the 73rd Amendment which delineated special provisions for panchayats in the fifth schedule areas.
This is the Panchayats (Extension to Schedule Areas) Act, 1996, PESA. It decentralised existing approaches to forest governance by recognising the traditional rights of tribal communities over ‘community resources’ which were deemed to include land, water, and forests. At the time of its inception, PESA was significant not just because it provided for a wide range of rights and privileges, but also because it provided the principle of local authority which acted as a basis for future law making concerning the tribal people.
While PESA showed great promise in preserving forest and tribal areas as a commons for the ancestral peoples of that land, it has been marked by difficulties and controversies in implementation. These issues of implementation must be resolved by stronger action on the part of the government to continue with the devolution of power to village authorities.
The Scheduled Tribes (Recognition of Forest Rights) Act of 2005, was more effective in the realisation of rights. The Act has defined forest land as land of any description falling within any forest area and includes most types of forests. The law provides for recognition and vesting of forest rights to Scheduled Tribes in occupation of forest land prior to 13 December 2005 and to other traditional forest dwellers who are in occupation of forest land for at least three generations, which is 75 years, up to a maximum of 4 hectares. These rights are heritable but not alienable or transferable. Forest rights include, among other things, the right to hold and live in the forest land under individual or common occupation for habitation, self cultivation for livelihood, etc. Moreover, the Act recognises the rights over ‘community forest resource’ which it defines as customary common forest land within the traditional or customary boundaries of the village including protected areas. This legislation has more potential for preserving biodiversity as a commons for the tribal people and forest dwellers of India and for them to continue to use these bio-resources in ways in which they always have.