Sowing Bitter Seeds

A little-known treaty set up by a handful of European countries threatens smallholder farmers

Seeds are where it’s at. There’s no food without seeds. This is a hill I am willing to die on.

The dishes we savour with each bite, the oil we prefer to cook with, and the tipple of our choice: all derived from seeds.

There may come a time when we can grow all of our food without seeds but I doubt it will happen in my lifetime. Possibly not in yours either.

But there is a battle going on at the moment between supporters of smallscale farmers who want to continue the age-old practice of saving, exchanging, and reproducing their own seeds, and those who want to protect the intellectual property rights of people who breed new varieties of seeds that they say are essential for society but which farmers must buy and cannot reproduce.

That’s what this week’s issue is about.

P.S. This issue is delayed because I had technical problems that required professional help from my better half.

Mix of peruvian native corns from local market in Cusco, Peru. (Getty Images)

Before GMOs, there was UPOV.

GMO (genetically modified organism) is usually used to describe a plant, animal, or microorganism whose DNA has been altered through genetic engineering. GMO crops have been a source of vociferous and emotional debate for many years. They’re impossible to avoid in the U.S. but barely present in many parts of the world.

The debate has gotten both more vociferous and emotional with the arrival of Nobel-winning CRISPR-Cas9 technology that allows parts of the genome to be edited and manipulated. This means one can choose to modify specific genes to enhance desirable traits and/or suppress undesirable ones.

A big criticism of these new techniques is how big seed companies use intellectual property (IP) rights to maintain their monopolistic control of the market.

But did you know that UPOV, a treaty that provides IP rights to plant breeders, has been around since 1961? Whereas the first GMO produce - a GMO tomato - came on the market in 1994, according to the U.S. Food & Drug Administration (FDA).

Few of us have heard of UPOV. But advocates for smallholder farmers, anti-poverty groups, and environmental organisations say it promotes industrial, monoculture farming and is part of the larger ecosystem that is pushing a single model of agriculture and robbing farmers of their agency in the process.

A special note: Talking about UPOV and seed laws can get very technical very quickly. You can also get bogged down by linkages to the WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the contradictions with the International Treaty on Plant Genetic Resources for Food and Agriculture.

So I’ve made a conscious decision to stick to what I see as the heart of the issue: how UPOV could further worsen the imbalance of power in our food systems. I also feel those profiting from the current system often make things intentionally complex so we’d give up trying to understand the root causes and asking hard questions. It’s important to lift the veil.

What is UPOV?

It is the French acronym for the “Union Internationale pour la Protection des Obtentions Végétales”, an intergovernmental organisation established by the International Convention for the Protection of New Varieties of Plants, also known as the "UPOV Convention”.

The first UPOV Act was drafted in 1961 and has been revised three times. The 1991 update has been the biggest bone of contention.

Its mission “is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society”, the Geneva-based organisation said on its website.

New, improved varieties of plants would help feed a growing population amid climate change, boost crop productivity, increase farmers’ income, and provide employment to millions of people while respecting the natural environment, UPOV added.

However, there is frustratingly little information on how UPOV or the International Convention came about on the “About UPOV” section of the website. It was from the Quaker United Nations Office’s 2011 report that I learnt of its intriguing origins.

“The Convention was largely conceived and designed by and for European commercial breeding interests” the report said.

“Two organisations were deeply involved…: (i) the International Association for the Protection of Intellectual Property (AIPPI), which largely comprises lawyers with a pro-industry stance; and (ii) the International Association of Plant Breeders (ASSINSEL).”

UPOV says it has 79 members as of February 2, 2024. It also says 18 States and one intergovernmental organisation have initiated the procedure for acceding to the Convention and 25 States and another intergovernmental organisation have been in contact for assistance in developing laws based on the Convention.

How does it work?

UPOV says developing a successful plant variety takes a lot of time and effort, yet faces the threat of reproduction once it is released.

“Sustained and long-term breeding efforts are only worthwhile if there is a chance to be rewarded for the investment made. To recover the costs of this research and development, the breeder may seek protection to obtain exclusive rights for the new variety.”

This means granting them an IP right called “the breeder’s right”.

“The breeder’s right means that the authorisation of the breeder is required to propagate the variety for commercial purposes. The UPOV Convention specifies the acts that require the breeder’s authorisation in respect of the propagating material of a protected variety and, under certain conditions, in respect of the harvested material. UPOV members may also decide to extend protection to products made directly from harvested material, under certain conditions.”

To be protected, breeders must file applications with relevant authorities of UPOV members and meet the criteria: novelty, distinctiveness, uniformity, and stability.

It all sounds reasonable, right?

So why are people concerned?

In many countries around the world, there are two parallel seed systems: the commercial sector and the farmer-managed system and concerted efforts to expand and boost the former have come at the expense of the latter, said Ruth Segal, Policy Lead on Food Systems and Land at international organisation CAFOD.

“Yes, you do need to protect the investment of plant breeders, but there needs to be an appropriate balance between plant breeders’ rights and farmers rights. At the moment, that balance is not there in the later iterations of UPOV, particularly the one in 1991,” she told me in an interview.

“Farmers rights have been squashed and reduced and turned into just a kind of voluntary exception that a country can choose if they want but they don't have to.”

“If you don't have control over the seeds of the crops that you're growing, then you don't have control over choices about what kind of agriculture, what kind of crops, what kind of food you want to grow, and how you want to engage with the market.”

What are the problems?

Reinforcing a destructive model of agriculture: Proponents of UPOV say access to new, improved seed varieties lead to an increase in yields and farmers’ incomes.

Critics say the cultivation of standardised seeds calls for a standardisation of agriculture, which favours a system that is intensive and input-heavy, which has adverse consequences on both nature and climate.

Reinforcing the corporate concentration in agriculture: Four companies (Bayer, Corteva, ChemChina, and BASF) control 51% of the global commercial seed market.

I usually see it as a bad sign when a handful of players have such outsized power, because they can set prices, determine R&D priority, and influence global and national policies. However, others disagree this is happening.

“Corporate control is a really big part of (the concerns), because once the corporates have control of those markets, they can bring GMOs in, because there's nothing to stop them, because there are no other seeds,” said Ruth.

Disregarding farmers’ contribution and ignoring their roles as seed breeders: Farmers have been conserving and breeding seeds since agriculture began but UPOV’s system neglects their important roles and contribution and instead put them squarely as consumers, critics say.

This creates an inaccurate, incomplete, and simplistic narrative of farmers solely as buyers of seeds and the commercial seed sector as benefactors.

Neglects country-level differences: The 1991 Act “pays little attention to differences among countries” with regards to the diversity of agricultural conditions and actors, said a 2015 study commissioned by the German government. I haven’t been able to find the full report though so if you have it, please share!

Criminalising traditional seed exchanges: Around the world, farmer-managed systems provide the vast majority of seeds for agriculture but they are in danger of being decimated, according to civil society groups.

“The system put in place by the UPOV Convention bans the use of farm seeds or subjects it to the payment of royalties and criminalises their sale and exchange,” the European branch of global peasant movement La Via Campesina (ECVC) said in 2021.

Practical issues: Having to buy commercial seeds instead of reusing saved (or) exchanged seeds mean farmers have to spend money. If they’re hybrid seeds, farmers have to buy them every year, costing them even more.

Who’s being harmed?

Small farmers in general, including those in rich countries (see the above report from ECVC).

But a new report from CAFOD co-authored by Ruth showed women farmers in the developing world, who already face multiple levels of discrimination, are bearing the brunt.

Women farmers often do not have access to the same information, training and support as men, rely on farmer-managed seed systems that are more flexible and accessible, and are usually unable to afford seeds from the commercial sector, let alone become a producer, it said.

The reported included a case study, conducted with local umbrella organisation BIBA-Kenya, on the gender impacts of the 2012 seed regulations.

“The legislation mandates that all seeds sold in the market must be certified, and it establishes strict penalties for the sale of uncertified seeds. Violating the provisions of the act renders the offender liable for a fine up to one million Kenyan shillings or imprisonment for a term up to two years, or both,” the report said.

The changes in the law affected the availability of traditional seed varieties and the quality of seeds women can access and have been detrimental to women’s role as seed savers and gender equality, it found. The costs of seeds increased in both systems too, with commercial seeds costing approximately four times that of the farmer system.

In theory, seed savers can certify their own seeds under UPOV but the process is prohibitively expensive for smallholder farmers - over 2,000 Euros - as well as lengthy and bureaucratic.

“We have lost many local seed varieties for the last 20 years due to over emphasis on using the hybrid seeds,” one respondent said.

Where else is this happening?

The CAFOD report above listed six countries - Liberia, Sierra Leone, Zambia, Niger, Chad, and Benin - where governments are under pressure to revise their seed laws and/or become a member of UPOV. They all have ongoing projects with the World Bank where receiving funds are contingent upon adopting/amending/reforming seed certification regulations.

This open letter from dozens of organisations list a few more places: Guatemala, El Salvador, Thailand, Indonesia, and the Philippines.

I spoke to Eugene Ng'andu, an officer with Caritas Zambia’s Livelihoods, Climate Change, and Environment Programme, about what’s happening in his country.

He said the Zambian seed sector is governed mainly by two laws: the Plant Variety and Seeds Act which focuses on the production, certification, and marketing of seeds, and the Plant Breeders Rights (PBR) Act of 2007 which is concerned with providing exclusive rights to breeders for the varieties they develop. A more informal farmer-led seed system also exists, producing about 70% of the seed needs in the country.

Both laws have been under review but the PBR is being replaced as I write this, to align with the 1991 UPOV Act in order for Zambia to become a member.

But Zambia already has a seed certification authority, known as the SCCI, which is internationally accredited and a member of OECD.

“So why would you be wanting to join UPOV 91 when you're already doing fine?” asked Eugene. “We have seen a move from external partners, especially those in the private sector, pushing for this.”

Under the conditions of the World Bank’s “Growth Opportunities Programme-for-Results Project”, Zambia has to complete four Acts, including two related to seeds, and get them approved by the Parliament before funding will be released, CAFOD said.

But the new PBR Act would strip farmers’ rights to save, produce, and exchange the seeds, which are enshrined under a local law and are included, albeit on a limited scale, in the current Act, Eugene said. “But when you look at the bill which is being advanced, all of this has been scrapped.”

“The small scale farmers have been servicing the country in terms of food and nutrition security, but also in terms of the seed needs. It is self regulated and uncertified, but (they are) indigenous seeds, adapted to different areas and agroecological regions of the country,” he said.

“These farmers have to be empowered, and whatever law that comes into place has to ensure that we take into consideration the rights of these small scale farmers."

Who’s pushing for it?

As you may have guessed, the World Bank is a major proponent. Others have identified the European Commission and free trade deals as pushing for UPOV.

In other words, this is being imposed by industrialised nations on pretty much the rest of the world.

What does UPOV say?

UPOV says it is neither promoting nor pushing farmers to choose any particular varieties of seeds or method of farming.

It also says no restrictions are placed under who can be considered a breeder, IP rights are necessary for breeders, and that becoming a member actually leads to a reduction in the use of inputs.

It added that its system was “create to benefit society” and a breeder can authorise a farmer “to exchange seeds of protected varieties freely within the local community”.

Final thoughts

Ruth articulated this way better than I could so I’m just going to leave you with her comments.

“There's this big issue around GMOs and ownership and manipulating human nature, and you can have that conversation. But on a day-to-day level, farmers are not able to afford certified seeds and these plant breeders rights and plant variety protection have massive impact on farmers.”

“We all need food. We rely on there being an environment that functions to produce food, and the more that is controlled by a very small number of multinational corporations, the more risk there is for all of us. At that level, it matters for us as well as for the smallholder farmers.”

Thin’s Pickings - UPOV Edition

1. Seed Systems and Gender Equality - CAFOD

   A report that came out in September on how seed certification schemes and laws affect women.
   

2. Sowing the seeds of poverty: How the World bank harms poor farmers - CAFOD

   Last year’s report criticising the World Bank for “promoting a model of agricultural development that benefits large-scale agribusiness at the expense of some of the world’s poorest smallholder farmers”.
   

3. The Role of the International Union for the Protection of New Varieties of Plants (UPOV) - Quaker United Nations Office

   Published in 2011, this provides a pretty comprehensive overview of UPOV, its origins, how the system works, and if there are alternatives.
   

4. Incorporating Peasants’ Rights to Seeds in European Law - ECVC

   I included this report not only for its content but also to show the problems aren’t limited to the developing world.

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