Origin of the concept in FAO
Thorough analysis of the documentation shows that the concept of Farmers' Rights was first brought up in international negotiations in the Food and Agriculture Organization (FAO) in 1986.
We will, however, first have a brief look at earlier FAO discussions and decisions relevant for understanding the context, starting with 1983. Then we will proceed to four relevant meetings in 1986 and 1987. Documents from these meetings show that opinion differed as to the concept of Farmers' Rights and whether and how to give it recognition. However, various considerations and practical solutions were suggested already at this point (particularly in 1987), and these were more or less reflected in later discussions, in the literature and in the final recognition of Farmers' Rights in the International Treaty. The negotiations in 1987 can be said to form the foundation for all further negotiations on Farmers' Rights, and provided substantial input to the framing of our current understanding of the concept.
Twenty-second Session of the FAO Conference, Rome, 1983
In 1983 the International Undertaking on Plant Genetic Resources was adopted at the FAO Conference, which is the supreme governing body of the organization. The objectives were to ensure that plant genetic resources for food and agriculture would be explored, preserved, evaluated and made available for plant breeding and scientific purposes. The Undertaking was based on 'the universally accepted principle that plant genetic resources are a heritage of mankind and consequently should be available without restriction' (Article 1). This formulation, and other articles with it, were to form the basis for controversies with regard to intellectual property and plant breeders' rights, as they had already emerged in the negotiations leading up to the International Undertaking. In turn, these controversies came to provide the background for the introduction of 'Farmers' Rights' as a political concept, as we shall see. In 1983, there was, however, as yet no documented mention of Farmers' Rights.
At the same Conference Session, the Commission on Plant Genetic Resources was established (Resolution 9/83, Twenty-second Session of the FAO Conference, Rome, 1983), to deal with issues related to plant genetic resources, including monitoring the operation of the international arrangements provided for in the International Undertaking. The Commission was later to become an important arena for discussions on Farmers' Rights. Later on, in 1995, the mandate of the Commission was broadened to cover all components of agrobiodiversity of relevance to food and agriculture (Resolution 3/95, Twenty-eighth Session of the FAO Conference, Rome, 1995). It was then renamed the Commission on Genetic Resources for Food and Agriculture (CGRFA).First Session of the Commission on Plant Genetic Resources, 1985
The First Session of the Commission on Plant Genetic Resources was held in Rome, 11-15 March 1985. At this session there was still no documented mention of Farmers' Rights. However, the Commission noted that 74 of the 156 FAO member nations had expressed support for the Undertaking; further, that several countries had indicated that they were not in a position to adhere to the agreement, or that they lacked the means to give effect to the commitments contained therein (paragraphs 7, 10 and 11). Urging these countries to respond positively, even though they might not manage to comply with all provisions of this non-binding agreement, the Commission considered the suggestion from some members that the text of the Undertaking should be modified (paragraphs 12 and 13). It recommended that the Secretariat prepare a paper, for consideration by the Commission at its next session, analysing countries' reservations to the Undertaking and delineating possible courses of action, including suggestions for possible interpretations of the text to increase acceptance of the Undertaking (paragraph 13).
The Commission also established a Working Group, chaired by its Chairman and consisting of 23 members from different country groups, to consider the progress made in implementing the Commission's programme of work and any other matters referred to it by the Commission (pararaphs 78-80). It was in this Working Group that Farmers' Rights were first addressed in the FAO system, but that did not come until 1986.FAO Conference Session 1985
At the following sessions of the FAO Council (the executive organ of the FAO Conference) and Conference in 1985, implementation of the International Undertaking was a subject, but no mention of Farmers' Rights as such was documented. The rights of plant breeders were, however, explicitly addressed at the Conference Session (paragraph 291). Due to the low number of countries adhering to the International Undertaking, countries were urged to spell out their reservations to this non-binding international agreement. Various members indicated that their national legislation, including plant breeders' rights, determined the degree to which they could adhere to the Undertaking. Several members were of the view that if the Undertaking was modified in this respect, more countries could adhere to it.
First Meetings of the Working Group of the Commission on Plant Genetic Resources, 1986
The first time that Farmers' Rights were reported as being addressed in an FAO forum was at the First Meeting of the Working Group in Rome, 2-3 June 1986. The meeting focused on legal and technical matters in addition to discussing the feasibility of establishing an international fund for plant genetic resources. In their analysis of country reservations to the International Undertaking, the Working Group identified various categories of reservations, one of which involved plant breeders' rights (paragraph 9); and considered ways and means to reach negotiated solutions to the problem so as to achieve widest possible adherence to the International Undertaking. One solution could be to recognize the rights of plant breeders. It was in this context that Farmers' Rights were addressed for the first time (paragraph 14):
"The working Group emphasized that, in addition to the recognition of plant breeders' rights, specific mention should be made of the rights of the farmers of the countries where the materials used by the breeders originated. These materials were the result of the work of many generations and were a basic part of the national wealth. FAO should study this subject with a view to formulating a constructive solution."
On the basis of the discussion in the Working Group on how to deal with country reservations to the Undertaking and attract greater adherence, a report was produced for the Second Session of the Commission on Plant Genetic Resources, to be held in Rome in March 1987:
Chapter III of the Report is devoted to Farmers' Rights. It links the issue to the question of access to genetic resources, but reveals substantial uncertainties as to the understanding of the concept:
"10. Any rights which might be recognized for farmers in connection with genetic material originating in a particular country would have to be linked to the question of the collection and transfer of genetic material in that country. No such concept is to be found at this juncture in national legislation which is available to the Organization.
11. It is understood to be the practice that the collection and expedition of such genetic material is arranged in agreement with the country where such material is found in situ and that specimens of all such material collected are furnished to the government concerned and often form the basis of national collections of plant genetic resources in certain developed countries.
12. If the Commission considered that the question of 'Farmers' Rights' required further elucidation or emphasis, it could do either or both of the following:
(a) Endorse the procedure described in paragraph 11 above, in particular that specimens of plant genetic resources collected be furnished to the 'in situ government';
(b) Request that members of the Commission supply to the Secretariat all relevant information concerning the legal concept of Farmers' Rights in their country (if such concept exists) with a view to the preparation of a study on the subject if the information received provides a sufficient basis therefore."Whereas this report indirectly questions the relevance of Farmers' Rights, the situation was to change considerably in 1987.
The Second Meeting of the Working Group of the Commission, 1987
FAO, 1987: 'Report by the Chairman of the Working Group on its Second Meeting', Report of the Second Session of the Commission on Plant Genetic Resources, CL 91/14, Appendix F.
The Second Meeting of the Working Group of the Commission on Plant Genetic Resources took place in Rome, 12-13 March 1987, and prepared the ground for discussions in the upcoming Second Session of the Commission with regard to several agenda items. At this meeting, Farmers' Rights were addressed in greater detail, so these parts of the report from the meeting constitute an important basis for understanding the history of this concept. The relevant portions of the text (paragraphs 8-9 and 11-12) are not easily accessible, and are quoted in full here:
"8. During the discussion of document CPGR/87/4, the Working Group agreed that the breeding of modern commercial plant varieties had been made possible first of all by the constant and joint efforts of the people/farmers (in the broad sense of the word) who had first domesticated wild plants and conserved and genetically improved the cultivated varieties over the millennia. Thanks were due in the second place to the scientists and professional people who, utilizing these varieties as their raw material, had applied modern techniques to achieve the giant strides made over the last 50 years in genetic improvements. In recent years some countries had incorporated the rights of the latter group into laws as 'Breeders' Rights', i.e. the right of professional plant breeders or the commercial companies which employ them to participate in the financial benefits derived from the commercial exploitation of the new varieties. However, as document CPGR/87/4 pointed out, there was presently no explicit acknowledgement of the rights of the first group, in other words, no 'Farmers' Rights'. The Working Group considered such rights to be fair recognition for the spade-work done by thousands of previous generations of farmers. And which had provided the basis for the material available today and to which the new technologies were in large measure applied. The Group agreed, that what was the issue here was not individual farmers or communities of farmers but the rights of entire peoples who, though having bred, maintained and improved cultivated plants, had still not achieved the benefits of development nor had they the capacity to produce their own varieties. Alternative names such as 'right of the countries of origin' or 'gene donors', were proposed, but the conclusion was that the name 'Farmers' Rights' was the most expressive.
9. The Working Group explicitly refused to give a definition of the 'Right of Farmers' but was unanimous in recommending its recognition by the Commission. Many delegations asked the Secretariat to examine possible mechanisms for giving concrete expression to this right (to the extent possible), in specific activities designed to promote and develop national germplasm conservation programmes, plant genetic improvement, and seed production in the developing countries, and through the International Fund (…).
11. The Working Group recommended that the foundations for arriving at this single interpretation be established by a small, informal contact group, made up of delegates standing for the various options. Participation in the contact group would be voluntary, and would be open to observers as well. This contact group would meet during the second session of the Commission, i.e. now. The Working Group agreed that the three major items which should be negotiated by the Contact Group were:- Breeders' Rights
- Farmers' Rights, and
- The free exchange of genetic material.
12. The Working Group concurred that Breeders' Rights and Farmers' Rights were parallel and complementary rather than opposed, and that the simultaneous recognition and international legitimization of both these rights could help to boost and speed up the development of the people of the world."
As these quotes show, the main element of the Farmers' Rights concept concerned the need to reward farmers for their contribution to plant genetic resources for food and agriculture. The rights holders were not to be single farmers or communities, but entire peoples, i.e. a form of collective right. The idea of developing farmers' and plant breeders' rights simultaneously in order to seek a balance between the two also emerged at this meeting. The Contact Group had a challenging task in seeking a single interpretation, a point to which we return below.
Second Session of the Commission on Plant Genetic Resources, 1987
FAO, 1987: Report of the Second Session of the Commission on Plant Genetic Resources, 16-20 March 1987, CL 91/14.
At its Second Session, the Commission on Plant Genetic Resources agreed to adopt practical measures to ensure wider adherence to the Undertaking (paragraph 12), and established the Contact Group (paragraph 34). In this context, a broader discussion on Farmers' Rights unfolded. Since this is the first documented discussion of Farmers' Rights in the Commission, and also this report is not easily accessible, its paragraphs on Farmers' Rights are quoted in their entirety (paragraphs 37-42):
"37. On the question of farmer' rights, delegations expressed a wide range of opinion. Most delegations which intervened on the subject stressed the importance of the concept of Farmers' Rights, holding that these rights derived from centuries of work by farmers which had resulted in the development of the variety of plant types which constituted the major source of plant genetic diversity; many of these resources were now being exploited in other countries as well and had become, in fact, part of the common heritage of mankind. They considered that Farmers' Rights were up to a point comparable with breeders' rights, which even existed in the national legislation of many countries, and it was therefore fitting that Farmers' Rights should also be recognized.
38. One delegation, whilst supporting very strongly the concept of Farmers' Rights, was of the opinion that the term did not present an adequate characterization of the concept, since it was too broad; that delegation would have preferred the term, 'rights of centre of origin countries', it suggested that the above two expressions could be combined, and that the Commission might agree to the term, 'rights of farmers in centres of origin countries'.
39. Many of the delegations that were in favour of recognizing the concept of Farmers' Rights felt that this could be done immediately, while continuing to seek a more detailed definition. On the other hand, some delegations were of the opinion that such a complex and important subject required yet further reflection before formal recognition is given to it.
40. Some delegations suggested that the procedure described in paragraph 11 of the document would be an adequate solution to the problem, that is, that the collection and exporting of genetic material originating in a particular country be arranged in agreement with that country, and specimens of material collected be furnished to the government concerned. Some also felt that the suggestion in paragraph 12 (b) of the document (that a study on the subject be prepared by the Secretariat on the basis of information provided by members of the Commission) would serve a useful purpose in developing a definition of the concept of Farmers' Rights.
41. A number of delegates considered that the concept of Farmers' Rights should be linked to the establishment of an international fund for plant genetic resources, pursuant to Article 8 of the Undertaking (see also CPGR/87/10). The establishment of such a fund would provide a means of implementing a programme of action for plant genetic resources, mainly in developing countries, thus benefiting the farmers whose work had given rise to the many plant genetic resources that now exist.
42. A few delegations considered that it would not be feasible to attribute Farmers' Rights to any particular country of origin, since there had been a constant exchange of plant genetic resources over time among the various regions of the world, and since such exchanges had been mutually beneficial."Finally the Working Group was asked to proceed with negotiations aimed at achieving an agreed interpretation of the Undertaking, in order to attract further countries to adhere to the agreement. The Chairman was requested to invite interested parties to participate in the negotiations. Many delegates considered that these talks should also cover the question of the formal recognition of the concept of Farmers' Rights (paragraph 46), and it was proposed that the Working Group should consider Farmers' Rights in relation to plant breeders' rights, and then report to the next session of the Commission on possible mechanisms to give practical expression to these rights (paragraph 78).
The Commission also discussed the establishment of an International Fund for Plant Genetic Resources, and the topic of Farmers' Rights was brought up (paragraph 30):"(…), it was pointed out that such a fund should serve mainly to increase support for the improved conservation and utilization of plant genetic resources in developing countries. In this way, the fund would provide a mechanism which would help to realize the Farmers' Rights to benefit directly from increased agricultural production through varietal improvement."
Meeting of the Contact Group, 1987
FAO, 1987: 'Summary Report on the Deliberations of the Contact Group by its Chairman', Report of the Second Session of the Commission on Plant Genetic Resources, 16-20 March 1987, CL 91/14, Appendix G.
The Contact Group proposed by the Working Group and created by the Commission was composed of 17 members, and met during the meeting of the Commission, on 17 March, 1987. The Summary Report gives the following account of the discussion on Farmers' Rights (paragraph 3):
"The Contact Group agreed that this was a difficult task: breeders' rights are already recognized by national legislation in many countries. The so-called 'Farmers' Rights', however, which stem from the work that farmers have performed over the centuries, which resulted in the formation of the land-races, have not found any recognition in the laws and institutions of nations. It was agreed that these rights, too, must be given some formal recognition. It was acknowledged that, while the so-called 'Farmers' Rights' could not yet be given a precise definition, some sort of compensation for their most valuable contribution to the enrichment of the plant genetic resources of the world was well-founded and legitimate. It was pointed out that one way of giving practical recognition to this right could be in a form of multifaceted international cooperation including a freer exchange of plant genetic resources, information and research findings, and training. Another way could be through monetary contribution for financing a programme for the furtherance of the objectives of the International Undertaking on Plant Genetic Resources."
Thus, the Contact Group did not arrive at a definition of 'Farmers' Rights', but outlined some ways and means of according practical recognition. The Contact Group concluded that the views expressed in the Contact Group, as well as in the Commission and in the Working Group, should be taken into account by the negotiating group in the search for a negotiated interpretation of the controversial provisions in the Undertaking (paragraph 8).
Sessions of the FAO Council and Conference, 1987
FAO, 1987: Report of the Council of FAO, Ninety-first Session, Rome, 17-26 June 1987, CL 91/REP.
At the Session of the FAO Council in June 1987, Farmers' Rights were addressed for the first time in a Council session (paragraph 104):
"The Council noted with satisfaction the Commission's decision to initiate negotiations through its Working Group to achieve an agreed interpretation of the controversial parts of the international Undertaking on Plant Genetic Resources, and to include in this interpretation clarification and recognition of plant breeders' rights and Farmers' Rights."
However, in the ensuing Twenty-fourth Session of the Conference in Rome in November 1987, there was no reported mention of Farmers' Rights (C 1987/REP: Report of the Conference of FAO Twenty-fourth Session, Rome, 7-27 November 1987).