Agrobiodiversity and the Law: Regulating Genetic Resources, Food Security and Cultural Diversity – By Juliana Santilli


Agrobiodiversity and the Law: Regulating Genetic Resources, Food Security and Cultural Diversity , by Juliana Santilli , published by Earthscan , 2012 , 348 pp . £60.00, hardback .

Santilli, in a timely and informative analysis, claims that the need to conserve agrobiodiversity is no less important than the protection of wild biodiversity (p. xiv). In a highly accessible analysis, she explains the key legal challenges and measures being taken to regulate and protect agrobiodiversity, which she defines as including all crops, livestock and their wild relatives and all interacting species (such as pollinators, pests, predators, and so on) and the genetic diversity within them. At the heart of her work is an awareness of the intimate link between conservation of agrobiodiversity and the protection of farmers' rights to own, grow, develop, share, sell and benefit from their own local varieties.

Chapters 1–3 provide an overview of the nature, scope and definition of agrobiodiversity, its importance for securing rights to food, health and environmental sustainability, the threats and impacts of climate change for the maintenance of diversity, and the overall lack of international and national protection of livestock diversity.

The meat of the study begins in Chapter 4, where Santilli shows how seed laws that seek to ‘modernize’ agriculture with the production of uniform high-yielding plant varieties undermine traditional access by poor farmers to seed provided by indigenous and local communities. She goes on to examine a range of recent legislative efforts designed to liberalize the transfer of seed among local farmers (Brazil), distinguish between property rights and collective community heritage (Italy), permit farmers to choose between commercial and local varieties (Switzerland), and allow farmers to exchange seed of conservation varieties whether or not protected by plant breeders rights (Norway).

Chapter 5 examines the evolution of international law relating to the protection of plant breeders' rights including the World Trade Organization (WTO) Trade Related Intellectual Property Rights Agreement requirements for member States to provide sui generis plant variety protection. The original UPOV 1978 (International Union for the Protection of New Plant Varieties Agreement) is contrasted with American patents on plant varieties and UPOV 1991, which tends towards a form of patent-like protection. Santilli again provide useful information on measures taken in order to protect farmers' rights to their seed and the breeders' exemption from patent-like regulation. This includes India's efforts to achieve WTO compliance while remaining outside UPOV, European directives seeking to protect the breeders' exemption and farmers' rights to seed and the decision by some countries, including China, Brazil and Argentina to protect farmers rights by remaining in UPOV 1978.

Chapter 6 describes the historical and current national and international regulation of plant genetic resources (PGR). Santilli describes how PGR for food and agriculture, the subject of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), came to be distinguished from genetic resources as a whole, which are now regulated by the 2010 Nagoya Protocol.

Brazil has been one of the world's leaders in developing national regulations on access to genetic resources and benefit sharing; however, the path has not been smooth. In Chapter 7, Santilli describes in detail efforts over the past 10+ years to implement regulations adopted in 2001, which she claims requires modification to overcome their lack of clarity and transparency. The Brazilian position is contrasted with that of Peru, where sui generis legislation requires the prior informed consent of indigenous peoples for access to their traditional knowledge. Neither country has, in Santilli's view, found the answer to governance of rights over shared resources and knowledge. Therefore, she calls for the adoption of national regulations on agrobiodiversity, falling outside Annex 1 of the ITPGRFA, in order to protect in-situ resources and their utilization for food and agriculture.

Farmers' rights are the focus of a detailed analysis in Chapter 8. The concept has proven aspirational in the extreme: all benefits to date have come in the form of donations, such as the announcement by the European Union during Rio+20 to give €5 million (US$ 6.5 million) towards the Benefit-sharing Fund of the International Treaty. Santilli argues in favour of a more expansive notion of farmers' rights that recognizes their collective nature, facilitates traditional exchange and regulation under customary law, and promotes innovate schemes for benefit sharing, such as participatory plant breeding projects, payments for environmental services and protected agrobiodiversity zones as a means to support their conservation activities. The analysis includes a discussion of projects in Central America, Indian legislation on plant variety protection and seeds, and the interpretation and implementation of farmers' rights under the African model law.

Chapter 9 addresses the related issue of livestock keepers' rights. Animal genetic diversity is under severe strain with erosion currently running at a rate of about one breed a month. There is, however, no specific regime protecting the rights of livestock breeders and keepers, and Santilli argues for recognition of stewardship rights of indigenous and local communities over their local livestock breeds.

Chapter 10 goes outside the area of genetic resources to examine the experience of the open source movement, which has to date inspired proposals for a ‘General Public Licence for Plant Germplasm’ and for a ‘protected commons’, in which sharing of PGR among farmers and plant breeders is unimpeded while being protected from monopolistic appropriation. Indigenous peoples, however, have noted the existence of a plurality of local commons, and Santilli argues such customary legal regimes and resource management practices must be taken into consideration in the development of any open source system.

Where Santilli really caught my attention was in Chapter 11, where she explores the links between agrobiodiversity and cultural heritage. This includes reviews of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) Convention on Intangible Cultural Heritage and its links to food security and protection of crop diversity, and the UNESCO Convention on the Protection of World Cultural Heritage and its recognition of ‘cultural landscapes’, such as rice terraces in the Philippines. Brazil again provides an example of national implementation, including registration of the traditional agricultural system of the Negro River region, in November 2010. The chapter concludes with a description of Globally Important Ingenious Agricultural Heritage Systems – an initiative of the Food and Agriculture Organization of the United Nations (FAO) for the conservation and adaptive management of such sites. Places such as the ancient terraces in the valleys of Cusco and Puno in Peru, rice-fish agriculture in China and pastoral systems in Africa have already been included in a system, which FAO hopes to expand to 100–150 sites worldwide.

In Chapter 12 Santilli describes the limitations of the existing system of protected areas for the protection of important agrobiodiversity areas. She argues in favour of the creation of an internationally recognized protected area category aimed at conserving agrobiodiversity and discusses a range of options, drawing on examples such as the Potato Park in Peru. The jury is still out, however, on the benefits and potential downside for farmers of applying protected areas protection to agrobiodiversity zone – an issue I would have liked to see teased out in more detail.

Chapter 13 describes the legal basis for geographical indicators (GI), and presents both success stories and failures such as that in Mexico where the creation of GIs for tequila and Mezcal have led to the promotion of monocultures and loss of diversity of agave. In Santilli's view, GIs for origin-based products must form part of a comprehensive and integrated rural development strategy, acting as a starting point for the development and promotion of an entire geographical/cultural heritage.

Santilli's study is both expansive and thought-provoking. At the same time, addressing such a wide range of issues reduces the possibility of dealing with each in depth, and at times I was left wishing for more discussion of issues of personal interest. That said, it is a very welcome addition to the literature, providing a comprehensive and readily digestible induction into the complexities and potential future directions of agrobiodiversity conservation and regulation. Its easy style, clear explanation of technical terms, and informative analysis and exploration of emerging aspects will make it widely accessible and a useful addition to the libraries of anyone seeking to get their head around the emerging area of agrobiodiversity governance.