March 1997 THE YEAR OF AGRICULTURAL BIODIVERSITY REVISITED GRAIN 1996 was a year of unprecendented international attention focused on the issue of agricultural biodiversity. The subject was on the agenda at a plethora of international fora, and it was hard to keep pace with all that was happening. Here we attempt to evaluate the impact of "The year of agricultural biodiversity". While there was limited progress made on issues concerning conservation and management, little was achieved on questions of access to genetic resources, or on the establishment of Farmers' Rights or the rights of local communities and indigenous peoples to control their genetic resources. Important alliances were built amongst NGOs, which will be vital for the challenges they will face in countering the ever-growing power and influence of the WTO and the forces of globalisation in the coming years. "The year of agricultural biodiversity" - GRAIN's characterisation of 1996 - has come and gone. At the start of the year we outlined four criteria with which to measure the success or failure of the various upcoming events (see Seedling 1/96). The time has come to assess what was achieved at these international fora. Our goals were deliberately ambitious, and we didn't expect to see them all reached in a single year, but hoped for significant progress in that direction. The criteria for success were to see: Â· Increased control by farmers over their resources Â· A shift in priorities from ex-situ to on farm management of genetic resources Â· Farmers granted rights over their germplasm and knowledge (this includes the right to benefit from, to share and to further develop crop germplasm and the right to say no to appropriation and commercialisation, and establishing procedures for Prior Informed Consent) Â· Increased participation by farming communities in setting research priorities. The triangle of biodiversity-related objectives - conservation, utilisation and benefit sharing - outlined in the Convention on Biological Diversity (CBD) and the International Undertaking (IU) of the UN Food and Agriculture Organisation (FAO) suffered mixed fates last year. With the acceptance of the FAO's Global Plan of Action in Leipzig, the conservation aspect moved ahead, while the other two objectives were left trailing behind. In 1996 there was little or no progress made on the legal questions concerning access to genetic resources, on the establishment of Farmers Rights or the rights of local communities and indigenous peoples to control their genetic resources. Neither were there any concrete political moves to bring back diversity into agriculture and the fields where food is being produced. The main obstacle to progress in these arenas was the behaviour of the Organisation for Economic Co-operation and Development (OECD) country delegations, and the influence of the transnational corporations lurking in their shadows at these key meetings. At almost every international conference, the same pattern emerged: industrialised countries, and especially the US, blocked any moves to establish a system of collective rights for communities and farmers. OECD countries fear that such a move threatens the drive to patent monopolies on genetic resources and on technologies of the life industry. They more or less refused to talk about Rights or Intellectual Property Rights (IPRs) outside the framework of the Trade-Related Property Rights (TRIPS) Agreement of the World Trade Organisation (WTO). No wonder then, that the FAO Commission on Genetic Resources for Food and Agriculture (CGRFA) made so little progress in its tasks of renegotiating the International Undertaking, giving concrete expression to the issue of Farmers' Rights and shaping the IU into a draft protocol for the Convention on Biological Diversity. 1996 saw an increased emphasis on the commodity value of genetic resources and trade issues came closer to the fore. Some Southern governments are opting for quick-fix, short-term solutions to the question of benefit-sharing by entering into bilateral deals with Northern interests rather than engaging in long multilateral negotiations with uncertain outcomes. Others recognise the importance of negotiating for long-term solutions to the thorny and difficult questions of access and benefit sharing. The negotiations in the different fora also saw the erosion of the traditional block groupings of North and South. The alliances of the G77 reached breaking point on several occasions. This was due to the different interests and technology levels amongst Southern countries. Those with greater technological capacity and interests in becoming competitive in the biotechnology arena often joined up with the `Northern interest club' in the hope that they too would benefit from the policies being proposed by the North. This move may well fail to pay off. Agricultural biotech is increasingly controlled by a smaller and smaller handful of transnational companies, which are carefully laying the ground to make it very difficult for any Southern country to establish its own independent position in biotechnology. NGOs move forward 1996 was a year of coalition-building for NGOs and the birth of a movement of sorts. NGOs participated in unprecedented numbers in the international meetings organised by the FAO and CBD. The FAO's 4th Technical Conference on Plant Genetic Resources in Leipzig in June and the November World Food Summit in Rome attracted hundreds of groups representing or working with farmers in their own countries to debate the ownership of seeds and the future of agriculture. Likewise, meetings of the Ad Hoc Working Group on Biosafety and the Conference of the Parties to the CBD brought together hundreds of others to Denmark and Argentina to consider the implications of genetic engineering and bioprospecting on ecosystems and indigenous communities. Leipzig and Buenos Aires saw increased links between policy NGOs, indigenous groups and farmer organisations from North and South. As a whole, information sharing among NGOs has improved and more NGOs, farmer movements and indigenous peoples groups became engaged in the issues. Considerable NGO energy was also devoted to practical work in the field: conserving and utilising endangered or locally-adapted varieties, empowering farmers and implementing programs to advance diversified production systems based on local resources and knowledge. Efforts were made to increase collaboration with NGOs working at the national level and in national processes. This focus reflects the need to counter the forces of globalisation and the trend to move all decision making to international fora, with particular emphasis on the WTO. It is increasingly difficult for NGOs to be heard at these huge events, and it is national delegations that have the power to influence the outcomes. In Europe the Leipzig process and the adopted Plan of Action created some political space for NGOs to challenge existing seed marketing laws, which up to now have required - amongst other things - uniformity and high yields as conditions for seed certification and sale. To evaluate the success or failure of the year with respect to biodiversity, it is probably appropriate to have a quick look at the different events and conferences (see box). The year in brief The Leipzig Technical Conference In June, the `Global Plan of Action for Plant Genetic Resources for Food and Agriculture' was discussed and adopted at the International Technical Conference in Leipzig. The content of the action plan survived the FAO negotiating process, but the document is very weak on policy issues as measured by GRAIN's criteria for progress. The renegotiation of FAO's International Undertaking on Plant Genetic Resources The renegotiation was delayed from April to December, and even then the Commission failed to make much progress. Some countries stressed the need to clarify their positions, especially with respect to scope, access and Farmers' Rights. Regional consultations may help this process. COP III The parties to the Convention on Biological Diversity at its third conference (COP III) discussed agricultural biodiversity issues. It came up with a good critique of industrial agriculture, but this was not linked to any action plan. The CBD still has a long way to go on the rights agenda. The World Food Summit The political outcome of the Summit was poor. A modest step forward was the recognition that food should not be used as a political weapon. But the rest of the positive initiatives (including a Code of Conduct and the Right to Food) disappeared from the draft or were watered down by the time the Summit was held. The end result benefits industrial agriculture and regards international trade as "essential to food security". The WTO Ministerial Conference The WTO conference in Singapore largely ignored IPRs and the Agreement on Agriculture was more an issue for the South than the North. The final Ministerial Declaration simply stated that these two agreements must be implemented according to schedule. In contrast to all the preceding international meetings, governments absolutely refrained from questioning the wisdom of the free trade drive. CGIAR renewal The ongoing renewal of the Consultative Group on International Agricultural Research (CGIAR) saw no substantial moves towards more effective participation of farmers or their rights, and diversity in agriculture still remains a public relation tool for the CGIAR system instead of becoming a guideline for action. The CGIAR group moved closer to industry's covetous glances at the centres' germplasm, whilst simultaneous attempts to win the approval of NGOs failed. Although the renewal was claimed to be a success, the financial crisis became even worse in 1996. The US reduced its financial commitment substantially, leading to lay-offs and policy shifts away from Integrated Pest Management (IPM) and (always marginal) participatory research methods. Some have been already commented in earlier issues of Seedling. The ones that took place towards the end of 1996 are summarised below: COP 3 in Buenos Aires The agenda of the Third Conference of the Parties to the Convention on Biological Diversity (COP3) included agricultural biodiversity. The debate was often overshadowed by turf fighting over whether COP or FAO should lead in this area. The Australian government attempted to avoid any references to sustainable agronomic practices which might impede the full industrialisation of agriculture. In the end a "something for all" resolution was approved, which at least keeps the door open to the idea of bringing in a renegotiated International Undertaking as a protocol to the Convention. The working group on agriculture came up with quite a clear statement on the damaging effects of industrialised agriculture on biodiversity, but did not prescribe any action to counter this trend. There was a lot of procrastination over establishing some sort of process to address the implementation of Article 8(j) on the rights of indigenous peoples and local communities. The presence of more than 400 indigenous peoples' and numerous farmer representatives added some needed pressure, but even so, all that was achieved was agreement to hold a five day workshop on the subject in May 1998 in Montreal. The full weight of the trade lobbies was felt on the IPR issue. The `Decision on Intellectual Property Rights' which COP III adopted encourages studies to evaluate "the potential of existing intellectual property rights systems in achieving the objectives of the Convention." By not mentioning any more the possible harmful effects IPRs have on biodiversity, the CBD seems to be bowing down to the World Trade Organisation's ideology. Many NGOs pursuing biodiversity issues considered COP3 to be one of the key events last year. Thirty five Latin American NGOs and farmer representatives met in Buenos Aires for two days for what could be considered a very important step in promoting a co-ordinated approach to agricultural biodiversity issues in the region. The meeting called for a moratorium on all bioprospecting-biopiracy activities and agreed on a resounding "NO" to patents on life. Some thirty other NGOs, including major international players, then joined the Latin Americans for another two days of strategising, out of which came an "Open Letter to Peoples and Governments: Defending Our Rights", which picked up the moratorium and no-patents initiatives. The WTO Ministerial Conference The original aim of the December conference in Singapore was to review the implementation of the Marrakech agreements. However, OECD countries pushed to address additional issues, like investment and competition rules or core labour standards. Many developing countries opposed this move, stressing that this was premature, given that the implementation of existing agreements was currently inadequate. One issue of concern to developing countries was the implementation of the agricultural agreements. Argentina contested that treatment of agricultural issues in the WTO had been blocked by countries which continue to subsidise production, and that progress on negotiations for agricultural export credit was unsatisfactory. Several developing countries were concerned about how the application of sanitary, phyto-sanitary and/or technical measures would hinder their market access. Others urged consideration of the possible negative effects of the agricultural reform programme on Least Developed Countries (LDCs) and net food-importing developing countries. Several countries proposed to start exchanging information in preparation for the round of negotiations on agriculture which will begin in 1999. Most negotiations took place in informal groups organised by delegations from developed countries, which were confidential and by invitation only. Most Southern countries were kept out, and since they were not organised into a group like the G77 (as they have been in other international fora), these delegations were kept almost entirely in the dark as to what was going on. The success of industrialised countries in managing to include issues like labour, environment and investment standards into the WTO agenda, while downplaying issues of interest to the South, like further liberalisation in agriculture and textiles, showed that WTO still is heavily biased towards the interests of the North. NGOs were united in their report to the WTO secretariat, which criticised the WTO's lack of transparency and poor access to information. The FAO Commission In December, the FAO Commission on Genetic Resources for Food and Agriculture met to revise the International Undertaking (IU). The debate focused on the discussions related to access to plant genetic resources and on Farmers' Rights. A TRIP to the future 1999: the TRIPS Agreement will revise its clause on sui generis (Art. 27.3.b). As some industrialised countries are not happy with article 27 that allows plants and animals to be excluded from patentability, the start of the overall review process in 1999 will probably mean strong pressure to lift this exclusion. Already in 1995 the member countries to the European Patent Convention (EPC) pushed for a revision of the convention and for "scrapping" article 53.b. which render plants and animal varieties as non-patentable. The proposed new European Patent Directive (see next article) tries to anticipate this revision as well. For governments of developing countries as well as NGOs, however, the exclusion in TRIPS article 27 is not strong enough, as it still requires some form of intellectual property on the seeds that farmers sow, the very basis of food security. Everyone should be aware that the exclusion might be removed, not reinforced, and that the industrialised countries could start their campaigning on this long before the next Ministerial Conference in1998. 2000: developing countries are obliged to fully implement the TRIPS agreement. Article 71.1 foresees an additional review (and renegotiation) in 2000: "The Council for Trade-Related Aspects of Intellectual Property Rights shall review the implementation of this Agreement after the expiration of the transitional period" (which is January 1, 2000, for developing countries). The same article offers the possibility of expanding the scope of the TRIPS Agreement by saying "The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement." In Singapore several countries including the US emphasised the importance of the full implementation of the TRIPS Agreement and proposed the early start of new negotiations. Meanwhile, India and other developing countries expressed their concern about the adverse effects of the TRIPS agreement, including heavy implementation costs. In a press brief for Ministerial Conference the WTO secretariat stated that "further negotiations" will start in 1998 "with a view to broaden and improving the Agreement on the basis of mutual reciprocity". GRAIN inquired twice with external relations officials of at WTO about this. The answer was that the WTO officials don't know why this statement entered into the press brief. But: if the information is wrong, why does the WTO secretariat not correct it or stop its further dissemination? The delegates are in the process to debate different access regimes. In the end some crops - those traditionally more dependent on a continuous flow of germplasm, or which are particularly important for global, regional, national and/or local food security - might fall under a relatively open access regime, with the countries of origin (the South) being compensated through a North-financed fund. Other crops - such as industrial crops- could be subject to an open regime of access with a bilateral benefit-sharing system. Finally, some crops could be excluded from the scope of the Undertaking, and be subject to specialised access agreements between the country of origin and the one requesting the resources. The crucial point for developing countries will be how to retain or gain control over germplasm flows. Farmers' Rights have been formally recognised in the IU and are to be redefined in the current renegotiations. The concept originally referred to a financial fund for farmers in recognition of their role as creators and stewards of agricultural diversity. However, the lack of real political will and financial resources have kept them as an empty concept. The definition of Farmers' Rights must be expanded if farmers are to continue as creators and stewards of agricultural diversity. Farmers' Rights to control their resources must include the right to participate in any benefits derived from the use of their germplasm and knowledge, the right to freely develop and exchange crop germplasm, and the right to deny access to agents who wish to privatise their germplasm. Farmers' Rights must acknowledge the collective nature of both genetic resources and their associated knowledge. The African group came up with a common understanding of Farmers Rights which reflects some of these ideas. The G-77 partially took it up and presented it as its position (see Box). But Farmers' Rights still have a long way to go. All countries were invited to deliver more ideas on the revision and on specific questions for the next meeting of the commission in May 1997. Additionally, WTO, WIPO, UPOV and the CBD will be asked to transmit relevant background information on access and benefit-sharing related to PGR and agricultural biodiversity. Some countries felt that they needed national and regional consultations before the next meeting. Ethiopia for example will probably host a regional meeting in April. Where to from here? First of all it is important that what has been agreed upon be implemented. The Global Plan adopted in Leipzig proposes some concrete action that will benefit farmers and remove some of the obstacles that hinder the use of biodiversity in agriculture. The revision of FAO's International Undertaking will still take some time. The challenge here will be to ensure that the negotiated access regime encourages the exchange of genetic resources, which is open but does not limit the negotiating power of developing countries. Farmers' Rights must not be allowed to become a simple fund to finance conservation activities. The negotiating process will probably be confronted with threats of withdrawal from industrialised countries. However, a renegotiated Undertaking without the US and Europe as members does not make much sense, nor would it likely be accepted as a protocol to CBD by the Parties of the Convention. Any negotiated access and rights regime must be able to counterbalance the WTO's drive for stricter IPR protection. The evaluation of Agenda 21 by the UN General Assembly in June 1997, could help to strengthen environmental aspects and agreements on the international agenda. These agreements have come under immense pressure from trade interests and the globalisation wave in recent years. An intensified discussion on the importance of sustainability could partially counter the current dominance of the trade agreements. If 1996 was "the year of agricultural biodiversity," then the next few years could be labelled as "the years to defend agricultural biodiversity" from neoliberal trade policy. In the medium term, the WTO reviews and negotiations will be as crucial as any discussions on the international agenda as the US and other OECD countries push hard for stronger IPR protection. At the end of February this year, the Clinton administration proposed that the Free Trade Area of the Americas (FTAA) boast the "highest levels of intellectual property protection found in regional [trade] arrangements". NAFTA has already higher IPR requirements than the WTO. The US is pushing for a new IPR round to be initiated at the ministers of the Americas meeting in Belo Horizonte in May to put its ideas into practice. As was the case in the GATT Uruguay rounds, higher standards in regional trade agreements sooner or later become (minimum) standards in world wide agreements. In terms of genetic resources, developing countries could, at least in theory, have more negotiating leverage than they usually have in international agreements. This is because they possess the resources which the commercial interests desire, and are better able to set the terms of trade. If the FAO and CBD negotiations are well-managed, the G77 could develop a stronger bargaining position within the WTO negotiations - particularly in relation to the TRIPS revision. NGOs must continue to demand more transparency from WTO. The revision of the WTO agreements on TRIPS and Agriculture will be crucial. NGOs preparing themselves for these two important events should co-operate closely and agree at least on some minimum objectives they want to achieve. For the TRIPS revision this could be that the Agreement freely allows the exclusion of plants, animals and indigenous knowledge from patentability. We should also aim to convince enough governments to resist the OECD and keep the sui generis options open. In terms of the Agricultural Agreements, diversity-based agriculture that promotes food self-sufficiency must not be sacrificed to Northern trade and biotech interests. The Agreement must be stripped of the clauses that explicitly allow export subsidies on the part of the US and EU. It must restore and enforce the anti-dumping provisions of Art.6 in the pre-Uruguay Round GATT Agreement. The current obligation to open domestic markets to foreign food (to import a minimum percentage of agricultural products) must be kicked out. WTO has to accept that food security is a legitimate form of national security, for which WTO obligations can be waived. The point is that the CBD and FAO - and ministries of environment and agriculture at the national level - have some expertise in genetic resources and should well appreciate the harm which IPRs on living materials and the privatisation of genetic resources can do to food security and biodiversity. As a matter of urgency, they must stand up against the momentum being created at WTO towards free trade and global patent regimes. If NGOs are to influence the outcome of all of these fora on behalf of human rights, farmers' rights, indigenous peoples' rights, biodiversity, biosafety, and food security, we have to improve the position of developing country governments in these negotiations. We can help by sharing information and other resources with the people of those countries who in turn may choose to provide their governments with a rationale for better co-ordinating agricultural, environmental, and trade policies in their respective government ministries.