ENB:09:68
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FARMERS’ RIGHTS
The Working Group on Farmers’ Rights met for five sessions from 19-22 May 1997, under the chairmanship of Mr. Gert Kleijer (Switzerland), using Article 12 of the Bureau’s text as the basis for discussion. At the outset, the Chair noted that the all textual revisions were provisional and must be considered in light of the entire IU.
Article 12.1: The Working Group began its deliberations with a discussion of Article 12.1, which recognizes the contribution that farmers of all regions of the world — in particular those in the centres of origin and crop plant diversity — have made to the conservation and development of PGR, which constitute the basis of food and agriculture production throughout the world. ZAMBIA, on behalf of the African Group, requested the insertion of language that recognized the contribution of farmers as forming the basis for “Farmers’ Rights” (FR).
Although noting its willingness to pursue the objectives of Farmers’ Rights, CANADA acknowledged the seriousness of enshrining a new international right in a legally-binding treaty and expressed its reservation over adding a specific reference to FR, a term that at present is still only vaguely defined. This opinion was echoed by AUSTRALIA, the US, SWITZERLAND and the EU. The latter suggested including a definition of FR in Article 2 and, in the meantime, referring to the definition provided by Chapter 32 of Agenda 21. AUSTRALIA, supported by CANADA, requested that brackets be placed around “Farmers’ Rights” in the title of Article 12 and proposed further amendments in order to highlight the fact that the Working Group had not fundamentally agreed upon a definition for FR.
The EU stated that while it could accept reference to FR, the Working Group should go further and recognize the “rights of farmers.” However, CANADA and the US were unwilling to recognize the contributions of farmers as the basis for recognizing either the “rights of farmers” or “FR,” as it considered the rights conferred to be too broad in scope.
At its fourth session, the Working Group continued discussion of Article 12.1. The EU announced that it had worked with the African Group on a text and could now accept “FR as elaborated in Article 12.3.” CANADA, supported by ARGENTINA, AUSTRALIA and SENEGAL, expressed doubt that Article 12.3 constituted an elaboration of rights, but rather a number of measures to be taken by States to implement Articles 12.1 and 12.2.
The US could not agree with the EU text and reiterated its firm position that FR should be addressed nationally, given that the rights that extend to its citizens are encoded in the US Constitution. The US, supported by AUSTRALIA, said it would be difficult to accept “Farmers’ Rights” or “farmers rights” since it is not specific enough to be recognized as a right in the same sense as a right to free speech, to association or as expressed in human rights law. While the US indicated its willingness to establish measures to assist and encourage farmers, it had difficulty with elevating in a legal document something that was defined as a concept in FAO Resolution 5/89 to the status of right, such as the right to be free from torture. JAPAN stated the need for a clear definition of FR before it could agree to Article 12.1 since it also viewed FR as a concept rather than a set of substantive rights.
ETHIOPIA commented that “the decisions of the US, the most influential country in the world, affect everyone: ‘When elephants fight the grass suffers. We are the grass that is being trod upon.’” ETHIOPIA expressed its disappointment that unlike the EU, which had demonstrated a desire to enter into serious negotiations, the US revealed a desire to go backward. NORWAY noted that while it was impossible to go backward because the concept of FR has been recognized by the international community, at the same time FR could not be given a legal definition without further discussion.
Based on the numerous amendments proposed, NORWAY suggested that a Contact Group be created to work on Article 12.1. The Contact Group, comprised of Colombia, Egypt, Ethiopia, India, the Netherlands and the US, met Tuesday and Wednesday and presented its compromise text of Article 12.1, the whole of which was in brackets, to the Working Group at its fifth session. The Working Group did not negotiate the text but only discussed whether the text could be used as another option under Article 12.1.
CANADA commented that the Contact Group’s compromise text was virtually identical to the negotiating text and that the former was not acceptable because of the references to FR as elaborated in Article 12.3 and to FAO Resolution 5/89, both of which were too vague. Nonetheless, the majority of countries approved of the text as a supplementary option.
Article 12.2: The Chair noted the impossibility of consolidating the three separate text proposals for Article 12.2, which recognizes the need to realize FR. The first option, which addresses the responsibility of national governments and the international community to realize FR, was favored by the AFRICAN GROUP, EGYPT and BRAZIL, who added that national governments and the international community were equally important and responsible for ensuring the rights of farmers since both are the recipients of PGR. The EU, SWITZERLAND and CANADA preferred the second option, which calls on Parties to recognize the need to strengthen the role of farmers in conservation and sustainable use of PGRFA and to ensure fair and equitable sharing of benefits. The EU added that it was also willing to work on the first option.
The US and AUSTRALIA preferred the third alternative, which calls on Parties to recognize the need to promote the efforts of their farmers to conserve and sustainably use PGRFA, and suggested adding at the end, “and the need for the international community to assist in such efforts, including support for the conservation and sustainable use initiatives that directly benefit farmers.” The EU was unable to work on the basis of the third option and could not accept the US text. COLOMBIA also rejected the US proposal, adding that the purpose of Article 12.2 was to support initiatives, not only in the interests of farmers but of the entire international community.
Registering a strong reservation with the broad and undefined principles underlying the first option, AUSTRALIA noted that its position was directly counter to that of the EU, and that it did not want to accept the responsibility of recognizing FR at national or international levels.
The Chair directed the Working Group to use the first option as the basis for its work. INDONESIA stated that the full responsibility should be implemented at the national level since each government understands what rights must be given to farmers to improve their living. CANADA, supported by the US, noted that the implementation of a right is just as complex at the international level as it is nationally and questioned whether there was precedent for such a distinction between the two.
The US stressed that the realization of rights is a matter of national sovereignty and suggested the following text for the first option: “Parties recognize that the responsibility for realizing the rights of farmers, as defined by FAO Resolution 5/89 individually and collectively, where recognized by national law, rests with the national government.” The US added that it could drop reference to the FAO Resolution if “their” was added in front of “farmers” so that the phrase would read: “Parties recognize that the responsibility for realizing rights of their farmers, as they relate to PGRFA...”.
The EU supported the US proposal, but with the amendment: “the rights of their farmers, as elaborated in Article 12.3”. CANADA commented that it did not view Article 12.3 as an elaboration of rights but a means by which governments will act upon a recognition of the rights of farmers.
During the Working Group’s fifth session, AUSTRALIA withdrew its reservation on Article 12.2, provided that the third option in the Bureau’s compiled text of Article 12.2 be reinserted into the Working Group’s amended Article 12.2 as another option.
Article 12.3: During the Working Group’s discussion of the chapeau of Article 12.3, which suggests measures for implementing FR, AUSTRALIA, seconded by CANADA, requested the removal of treaty language given that no decision has been made about elevating the IU to treaty status. The EU suggested amending Article 12.3(a), which calls on Parties to assist farmers in the conservation and sustainable use of PGRFA. COLOMBIA noted that since both Article 12.2 of the IU and Article 8(j) of the CBD made reference to “indigenous and local communities,” Article 12.3 should continue in a similar vein.
Addressing Article 12.3(a)(i), regarding national germplasm, AUSTRALIA suggested wording that reflects that fact that a number of countries do not have a recognizable framework regarding the accumulation of germplasm. AUSTRALIA also suggested merging Article 12.3(a)(i) with Article 12.3(a)(ii) (preserving native germplasm) and Article 12.3(a)(v) (regional programmes). In its fourth session the Working Group agreed that Article 12.3(a)(ii) was unnecessary and could be deleted, as could Article 12.3(a)(iv), “[activities that help to [prevent environmental degradation/control the erosion] of arable land],” since most delegations were unwilling to accept a text that was so broad in scope.
Addressing Article 12.3(b), which concerns the use of international programmes to benefit farmers, the AFRICAN GROUP suggested language indicating that it was necessary to reorient international programmes to assist in furthering farmers’ activities in PGR. Furthermore, the Working Group should not operate under the false assumption that programmes were already working in this area. AUSTRALIA proposed the elimination of references to international programmes, because the narrowing of such programmes to directly benefit farmers, combined with the suggestion that all international programmes must benefit farmers, is not a feasible way of helping farmers. BRAZIL proposed amendments that would ensure that international programmes did not conflict with national legislation.
In Article 12.3(c), which suggests measures to be taken to implement national commitments that benefits farmers, MEXICO, supported by COLOMBIA and VENEZUELA, suggested that the language of Article 8(j) of the CBD — “indigenous and local communities” — should be used. AUSTRALIA, supported by the US, stated that since the issue of benefit sharing was problematic, the entire paragraph should be deleted or placed in brackets.
In Article 12.3(d), regarding support measures for research, training and institutional capacity building activities at the local level, the US, supported by AUSTRALIA, noted that the sub-article was very detailed and better suited to a document at the level of the Global Plan of Action. The AFRICAN GROUP preferred the text in it current form, noting that it was necessary to elaborate what needed to be done to remove the financial and market barriers and other constraints that operate against farmers and their livelihoods, in particular, the need for measures for training, credit facilities and institutional capacity with the participation of local countries, which is important for ability to participate in benefit sharing.
In Article 12.3(e), which concerns the integration of farmers’ knowledge, AUSTRALIA noted that “traditional farmers’ knowledge” is an unclear term. In addition, the US suggested the substitution of “adaptation of” with “integration of,” the logic being that what needs to take place is the integration of two types of technologies — traditional and modern.
In Article 12.3(f), regarding the promotion of national and international scientific and technological research, the Working Group agreed to the consolidated text proposed by the US, “Promote national and international scientific and technological agricultural research that supports and enhances, as appropriate, farmer-based knowledge systems related to PGRFA.”
The Working Group could not agree on any of the three options under Article 12.3(g), concerning the Farmers’ Privilege. The Chair directed the US, ARGENTINA and the EU to form an informal group to draft compromise text. The outcome of this discussion was a fourth option: “Protect, consistent with national and international legislation, as appropriate, the ability of farmers and their communities to keep, use, exchange, share and market seed and other plant reproductive materials of their farmers’ varieties/landraces.” ETHIOPIA commented that it did not understand what international legislation would mean in this context and that the text falls short of what it wanted in terms of the Farmers’ Privilege. NORWAY agreed that the compromise text was a weakening of the Farmers’ Privilege as compared to the International Convention for the Protection of New Varieties of Plants (UPOV Convention) of 1978.
In Article 12.3(h), the EU, seconded by AUSTRALIA, noted that since this sub-article addressed financial resources it should be included in Article 14, which addresses financing for the entire IU. Furthermore, of the two options for Article 12.3(h), the EU preferred the second, which calls for appropriate efforts to mobilize financial resources to support farmers, but with the deletion of the language, “without restricting or distorting trade.” The AFRICAN GROUP, supported by EGYPT, CAMEROON, INDONESIA, on behalf of the developing countries of Asia, and COLOMBIA, preferred the first option, which calls for the establishment and implementation of an international fund. EGYPT, supported by ZAMBIA and SUDAN, argued that FR and providing financial resources affects access to genetic resources and that unless FR is linked to the fund, there can be no FR, access or IU. Since there was no consensus on either option, the Working Group agreed that the text should remain in brackets.
The Working Group was also unable to agree on compromise text for Article 12.3(i), which concerns the transfer of technology. Amendments suggested by the US were rejected by ETHIOPIA, COLOMBIA, KENYA and BRAZIL because they were completely devoid of provisions for the transfer of technology as well as access to the results of research and development from the improved use of PGR through modern scientific methods as well as from their commercial use. These countries reiterated the position that access, scope and FR are one package — if there is no agreement on one then there is none on the others.
After a lengthy and general debate on the similarities of Articles 12.3(j), (k) and (l), which are concerned with legislation and legal protection systems for indigenous knowledge, innovations, materials and practices, it was agreed that Articles 12.3(j) and (k) would be deleted and (l) modified.
Two options were established for Article 12.3(m), which concerned legal protection systems to render effective the rights of farmers and the fair and equitable sharing of benefits arising out of PGRFA. The EU suggested: “Elaborate and establish systems (including sui generis systems), as appropriate, pertaining to the fair and equitable sharing of the benefits arising out of the utilization of plant genetic resources with their farmers.” CANADA, indicated its support for the EU text provided that “food and agriculture” was added to “plant genetic resources.” SWITZERLAND also supported the EU text, provided that the language “on a national level” was added to reflect that the paragraph referred to national systems. ARGENTINA suggested the amendments, “Study the possibility of developing juridical or legal protection systems or systems of legal protection in order to render effective the rights of farmers and the fair and equitable sharing of the benefits arising out of the utilization of PGRFA.” BRAZIL, seconded by COLOMBIA, supported the Argentine text, provided stronger language was used in the introduction such as “endeavor to,” and added that sui generis systems may not be applicable to national systems. ARGENTINA agreed to use the word “promote” instead.
NORWAY supported the EU text, noting that sui generis language was important and that it should be developed at the national, and not the international, level. SENEGAL said that the legal repercussions dictate that regulation should be left to the discretion of national governments. INDIA, supported by BRAZIL, stated the need for a system at both the national and international levels.
The Working Group ended its fifth session with further discussion of Article 12.3(m), which became Article 12.3(k) in the text submitted to the plenary due to the earlier deletion of two sub-articles. BRAZIL was amenable to either option provided that it was on a national level because Article 12.3(n)[l] addressed the international level and they viewed the two sub-articles as completely different concepts. BRAZIL, supported by ARGENTINA, proposed language for the first option that would indicate that not only legal systems but other mechanisms would be promoted to effectuate the rights of farmers, as well as language for the second option, “to ensure” the fair and equitable sharing of benefits.
The US supported the second option, but unlike BRAZIL inserted “promote” rather than “ensure.” JAPAN favored the second option, but did not have a clear understanding of the meaning of sui generis systems on a national level and called for its replacement with the language, “on the national level.”
The EU, US and AUSTRALIA then requested the deletion of Article 12.3(n)[l], which addressed international sui generis systems. However, the AFRICAN GROUP requested that the article remain. Although the US also requested the deletion of Article 12.3(o)[m], which calls on farmers and farming communities to fully participate in the definition and implementation legislation on FR and the IU at national and international levels, the EU disagreed. EGYPT requested that specific reference be made to an international fund.
The document produced in discussion by the Working Group was adopted in plenary without discussion.