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FARMERS’ RIGHTS

The Working Group on Farmers’ Rights, chaired by Mr. R .S. Paroda, met for four sessions on Tuesday and Wednesday. In its consideration of a revision of IU Article 12 on Farmers’ Rights, the Working Group had before it the Third Negotiating Draft (3ND), the WG-11 Report and its annexes, a Secretariat non-paper, and a draft submitted by the EU. The Chair emphasized that the Working Group’s task was not to revisit the entire IU, but to address the related issues that pertain to FR. He drew attention to the many legal issues involved, the relation of FR to the other Working Group’s discussion on scope and access, and emphasized the necessity of harmonizing the IU with the CBD.

The Working Group on Farmers’ Rights began its deliberations with a general discussion on IU Article 12. Rephrasing the FAO Legal Counsel’s equation of FR to a “bundle of rights” as “a bundle of issues,” the US noted that FR remains ill-defined, and emphasized the need to give careful consideration to the terms used in defining “rights.” Reiterating its position from Leipzig, that FR must be related to national rather than international actions, the US stated that the exercise of rights is nationally determined, and that international law protects the rights of individuals as opposed to groups. To avoid circular discussion, the US stated that FR should not focus on terminology but should be addressed within the context of the IU and, specifically Article 12. In response to a question posed by ZIMBABWE, the US stated that existing multilateral regimes, such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) and the International Union for the Protection of New Varieties of Plants (UPOV), could protect traditional, indigenous and farmers’ knowledge.

Underscoring the fact that the CBD recognizes the role of indigenous groups and local communities in maintaining and developing biodiversity, ETHIOPIA, on behalf of the African Group, noted that individuals form groups and that if the individual is worth protecting under international law, then groups are worthy of even greater protection. ZIMBABWE added that in Africa indigenous knowledge has evolved through generations, and these generations constitute communities. INDIA emphasized that it is only within developed countries that individual rights are considered the only rights worthy of protection.

Although SWEDEN stressed the special responsibility vested with the international community concerning FR, since they were first launched in the IU, it supported the US’s interpretation of FR as a “bundle of issues”, and proposed: a ranking of issues related to implementation; an analysis of the legal implications of the collective rights associated with these issues; and identifying the most appropriate agency to address them. BRAZIL identified three measures for implementation of FR: the establishment of an international sui generis system to address areas not covered by UPOV and WIPO; the development of national legislation for this purpose; and an international mechanism to harmonize these national laws. Expressing its rejection of an interpretation of FR as a new fundamental human right, CANADA sought clarification on the definition of FR, and stressed the necessity of harmonization with national legislation. NORWAY categorized FR as an extension of IPR, and stressed the need to avoid discussing legal implications and to focus on operationalizing FR.

In the context of this debate, the FAO Legal Adviser noted that there is no precise definition for FR due to the difficulties in identifying the group affected. Originally, the term “vested in the international community” was used in an effort to provide a level of concreteness. He noted that the revision of the IU has brought broad recognition of FR, but also uncertainty as to the proper approach for implementation. In recent years, he explained that many strands of FR have emerged: “bundle of rights”; the use of a multilateral mechanism and fund to implement FR; the recognition of farmers’ privilege; the protection of informal innovations; sui generis systems, and compensation to farmers for the use of PGR that they have developed. Several delegates suggested that this list be explored to see how FR are dealt with in each instance and how they enhance the IU.

FRANCE noted that the rights of groups and communities were not only complex, but far exceeded the framework of the meeting. One of the principles of UN is that States, not groups, be represented. If FR is pursued as an IPR or sui generis system, it should be covered by other fora, such as WIPO. FRANCE favored any measures that would promote access by farmers from the South, as it would contribute to implementing their rights and making them partners in sustainable development. CHINA supported international recognition of farmers’ historical contribution to the conservation and utilization of genetic resources, explaining that developing countries will be the major beneficiaries of this contribution, and that lack of financial resources and know-how in developing countries has ultimately affected food security.

In response to requests by SWEDEN, BRAZIL AND FRANCE that relevant organizations participate in the discussion on FR, the WTO read passages on the contribution of genetic material by countries and communities from a recently “unrestricted” document that outlined the WTO Secretariat’s views on the interface between the CBD and the TRIPs agreement.

GAMBIA expressed surprise that delegates were raising issues concerning FR since FR was developed initially to deal with the deficiencies in plant breeders rights and intellectual property rights. The AFRICAN GROUP reasoned that if the entire population can be represented on one extreme it can also be done at the other, and called for an expression of international will to recognize the contribution of farming communities. MALAYSIA reminded the Working Group of its mandate to determine the mechanism for multilateral action that should be taken, and suggested using the proposal to establish the “International Fund” as a guide for determining general principles and priorities. ZIMBABWE asserted that FR are a matter of justice, whether environmental, social or economic issues were involved.

The UK explained that although groups can have legal identities through cooperatives, societies and other means, the danger in debating on an international level is that it employs a top-down approach that may not be helpful to the farmers themselves. Although an enabling framework may be called for at the international level, real action and implementation should be taken at the national level.

COLOMBIA said that the origin of the concept of FR pertains to the international community, and therefore should be addressed internationally as well as nationally. COLOMBIA also called for a national legal framework of sui generis legislation for the acknowledgment of FR, and strongly supported the maintenance of the farmers’ privilege in IPR legislation, particularly with regard to patents. INDIA addressed the debate of community versus individual rights by referring to the EC, which is now given a seat next to all other countries, as evidence that a group can achieve legal recognition.

AUSTRALIA determined that the major issue is how to deal with FR in a legally-binding instrument and, given that it was not clear that the Working Group had agreed to text in the revised IU that would include FR, it was necessary to decide which principles would be included in the revised IU.

ARTICLE 12: Following this general discussion on Farmers’ Rights, delegates proceeded to address IU Article 12 point-by-point. In addressing the individual points relating to FR, the Working Group used the 3ND as the basis for discussions. SWEDEN, supported by the US, noted the necessity of a consensus IU, and proposed a list of the relevant issues that could be used as the basis for preparations for negotiations at next meeting.

In discussing the title of IU Article 12, “Farmers’ Rights”, CANADA, supported by AUSTRALIA and the US, refused to commit to the language “Farmers’ Rights” until the overall content of the article was finalized. EGYPT agreed to revisit this issue later but felt that an article titled “Farmers’ Rights” was needed. INDIA said that the text could remain in brackets because FR is mentioned elsewhere.

ARTICLE 12.1: The Working Group then addressed IU Article 12.1, which recognizes the contribution that farmers of all regions have made to the conservation and development of PGR, which constitutes the basis of plant production throughout the world, and which forms the basis for the concept of FR. Suggestions were made by a number of delegates concerning language and replacement text was proposed.

FRANCE stated that FR should not remain in the IU since it may be considered ambiguous and encouraged the Working Group to determine the concepts, such as “a common heritage of humankind” and “benefit-sharing”, that lie behind FR. SWEDEN noted that the CBD introduced an alternative to FR such that if the IU is harmonized with the CBD, there will be both a national (the sovereignty over natural resources) and an international (the rights of farmers) component. CANADA, stressing that while it did not contest the importance of recognizing the contribution of farmers, asked if the creation of a set of rights in a legally-binding treaty was appropriate since it raised questions that could not be addressed by a treaty. Although NORWAY agreed with the concept of FR, it noted that its categorization as a political or legal concept must be decided by each government and, in the meantime, the language should remain in brackets. This motion was supported by JAPAN, CHINA, the US, BRAZIL, the AFRICAN GROUP and ZIMBABWE.

INDIA, supported by ZAMBIA and ALGERIA, expressed frustration at what appeared to be a potentially watered down document. ALGERIA stressed that a mandate had been given to the Working Group to have preliminary discussions and that sending brackets to the plenary would only present diversions.

ARTICLE 12.2: The WG expressed general support for the EU text regarding IU Article 12.2, which states that FR are “vested in [the International Community], as trustee for present and future generations of farmers, for the purpose of ensuring full benefits to farmers, and supporting the continuation of their contributions...”. The US expressed the need to look to other fora, such as WIPO, WTO, and UPOV. CANADA was concerned about language that would result in a serious drain of financial resources if rights were vested nationally but funds were provided internationally. The AFRICAN GROUP noted that although this was a replacement of international law with national law, it did not change the fact that there are international dimensions to what the farmers do, and if action is needed at all levels the wording should be changed to reflect this.

ZIMBABWE stated that the IU cannot abrogate international responsibility solely to the national governments. Both international and national law must take responsibility at the appropriate level. Furthermore, in supporting the continuation of the contribution of farmers, it is necessary to recognize farmers’ knowledge and their ownership of it. The portion of this knowledge that has a scientific basis should be recognized as a discipline in its own right and should be developed at all levels.

The EU suggested using the alternative wording that it had presented in its text. NEW ZEALAND noted that each country has a different perception of what a farmer is, let alone FR, and therefore it supported Articles 12.1 and 12.2 of the EU proposal without modifications, noting that they reflected careful consideration of international law. SWEDEN expressed the need to harmonize the text with the CBD by adding “Farmers’ Rights” and removing the words “indigenous communities.”

The US supported consideration of the EU text but added that until issues pertaining to scope and access were determined, it would be impossible to determine benefits. Although the EU text was closer to the CBD, it too has some definitional problems that will need to be resolved in the future. INDIA expressed its willingness to consider the EU proposal.

ARTICLE 12.3: During the third session of the WGFR, delegates discussed IU Article 12.3, which concerns the best way to implement FR. The EU, supported by the US and CHINA, suggested that the main expressions of FR be moved to the preamble, and that mechanisms related to monitoring be addressed in a separate article on the IU in its entirety. The AFRICAN GROUP expressed similar views, but stated that the idea of “sustainability” should be reflected in the preamble. A number of paragraphs from the Secretariat’s non-paper were proposed by delegates. However, the US reasoned that, although the language could be changed to fit the article, there were more appropriate fora for addressing IPR issues. The AFRICAN GROUP responded that these other fora may not be inclusive of all the countries, such as UPOV, and that issues important to agriculture should be addressed in the IU so that all member States can participate. BRAZIL supported the AFRICAN GROUP on IPR, suggesting that the Commission was the right fora to facilitate the process, although in consultation with all other relevant fora. In response to a warning by ZIMBABWE that the US should not mislead the Working Group, the US reiterated its position that, “where appropriate”, these issues should be addressed in the relevant fora that are currently negotiating legally-binding instruments on these issues, and added that it was clear that an IPR regime could not be administered by the FAO.

OTHER ISSUES: The Working Group revisited its discussions of a definition on FR and the Chair highlighted the Secretariat’s revised three-page paper containing the submissions from the Working Group. SWEDEN, supported by the US, NORWAY, the AFRICAN GROUP, ZIMBABWE and MALAYSIA, rejected the strategy of attempting to formulate a precise legal definition of FR as too complicated, and suggested that when institutionalizing a topic in a treaty, it should be done in an operative article, laying down the commitments. The AFRICAN GROUP, supported by ZIMBABWE and MALAYSIA, added that it may be convenient to define FR in the future.

In resuming deliberations on IU Article 12, the Chair directed the members of the Working Group to bring their views together, although they were not required to agree on a final view or begin negotiations. Following distribution of a Secretariat paper summarizing earlier deliberations, the Chair reopened the floor for discussion. Noting that the Working Group was not prepared to negotiate further on IU Article 12.1, the US, supported by SWEDEN, the EU and AUSTRALIA, suggested sending the different proposed texts to the plenary. The US added that the Working Group was still putting ideas on the table, and that these views should be compiled in a document so that countries could reflect and further develop their positions.

BRAZIL announced that the G-77 had prepared a consolidated proposal from developing countries for IU Articles 12.1 and 12.2, although the AFRICAN GROUP reserved the right to revise the common text that constituted the developing countries proposal.

After the delegates discussed the G-77 proposal, FRANCE attempted to clarify the confusion concerning the presentation to the plenary and proposed that all the texts tabled in the Working Group could replace the relevant parts of the 3ND. Although this suggestion was supported by the US and CANADA, EGYPT said such a decision should be left to the plenary. The UK, supported by MEXICO, noted that the Working Group did not have the mandate to delete text. MEXICO also noted that the issues of FR and scope and access are interlinked and that decision must be left to the plenary.

PLENARY: In presenting his report to plenary on Thursday, the Chair of the Working Group on Farmers’ Rights stressed that the discussions were a pre-negotiation exercise intended to flag important issues that should be considered by the Commission in its future deliberations. Noting that the most important outcome of the WGFR was that alternative texts had been tabled by the EU, the US, and “developing countries”, the Chair called on the Commission to determine the status of the new submissions vis-�-vis Article 12, as presented in 3ND. FRANCE, supported by the US, favored replacing Articles 12.1 and 12.2, as presented in 3ND, with the relevant comments made by the WG, but noted that Article 12.3 should remain. CHINA announced that a revised draft of the combined developing countries’ proposal was being distributed.

In response to CANADA’s disappointment over the stronger tone of the new developing country proposal, the AFRICAN GROUP explained that the compilation of the positions of the developing country regions had been done quickly in an effort to be constructive, but that this process had been incomplete. They stressed that there was no new wording added and that the new proposal should not be interpreted as a destructive move by the developing countries; it was intended to be an editorial effort.

The Commission agreed that Article 12 of 3ND would be replaced by the texts presented in the Working Group on Farmers’ Rights. ETHIOPIA, supported by SWEDEN, stressed the importance of consultations, particularly at the national level, in addressing FR, and recommended that in the process of consultations, only those directly concerned — the farming community itself and agencies that work on farmers issues — should be included. AUSTRALIA, supported by SWEDEN and the US, and the AFRICAN GROUP suggested that WTO, WIPO, UPOV and the CBD be invited to report to future meetings of the Commission.

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