The History of Farmers' Rights - Fridtjof Nansens Institutt

30 Regine Andersen
resources and as a basis for farmers’ rights. Brush starts out with an analysis
of the nature of the ‘common heritage’ regime that was a prevalent
feature of the management of crop genetic resources until the adoption of
the CBD. In this context he explains key characteristics of traditional
agricultural knowledge and the background to the closing of the genetic
commons by the upcoming intellectual property rights regimes under the
World Trade Organization and by the access and benefit sharing regime
under the CBD. He offers examples of domestic implementation of these
regimes from Colombia, Mexico and Costa Rica, all showing the negative
effects of such regimes for the management of crop genetic resources.
An important reason for these problems is that the access and benefit
sharing regimes derived from the CBD failed to distinguish between wild
and domesticated plant genetic resources. According to Brush, there are
three important differences (pp. 21[A]/80[B]): ‘(1) involvement of numerous
farmers and farming communities in creating and maintaining
genetic resources, (2) genetic complexity of crop traits, and (3) a long
history of exchange and publicly supported conservation of crop genes
within and outside of their places of origin.’ Crop genetic resources
should be approached in a fundamentally different way, reviving the
‘common heritage’ approach.
On this background, Brush analyses the International Treaty. He concludes
that the ‘common heritage’ principle has re-emerged in the Treaty,
with its Multilateral System of Access and Benefit Sharing. This is the
context in which the provisions of the International Treaty on farmers’
rights are explored. Bioprospecting contracts between farming communities
and seed companies would not only be legally difficult, but could
also lead to market failure because a multitude of farmers would face an
extremely limited set of potential ‘buyers’ of their genetic resources. For
this and other reasons, alternative approaches to the realization of farmers’
rights need to be found. Brush suggests four guidelines for the crafting
of national policies (pp. 29[A]/93[B]): (1) the goals of farmers’ rights
should balance breeders’ rights and encourage farmers to continue as
stewards and providers of crop genetic resources; (2) farmers’ rights
should be viewed as collective rights rather than rights of individual
farmers or communities; (3) farmers’ rights should not be exclusive and
are not meant to limit access to genetic resources; and (4) mechanisms
are needed for sharing the benefits received by the international community
from the genetic material from farmers’ fields or international
collections.
According to Brush, the weakness of the International Treaty is that it
does not give proper emphasis to the obligations of industrial and developing
countries to support the conservation of crop genetic resources.
Therefore, it does not solve Hardin’s classic ‘tragedy of the commons’ 32
that has beset the management of crop genetic resources, allowing breeders
to benefit from the access to genetic resources without bearing the
32 Hardin, Garrett (1968): ‘The Tragedy of the Commons’, Science, 162, pp.
1243–1248