Implications for change and implementation of international legislation
by Michèle PERRIN-TAILLAT (THE FULL ARTICLE IS AVAILABLE IN ENGLISH AND FRENCH-LINKS AT THE END)
Plant terminology in legislative texts regulating the commercialisation, use and protection of plants is not unbiased. Words matter. They both influence and reflect the adopted approach, and they have an impact on the action taken in the real world. One may ask the question whether plant terminology is adequate to truly protect plant diversity, whether we look at it from the angle of cultivated plant diversity and food systems, or from the angle of “wild” species.
Beside various verbal denominations that make sense in their particular context, it has become more and more common to resort to digital representations of plants (DSI) that can create difficulties at the negotiating table when it has become necessary to implement much needed reforms. Plant law has direct implications on human health and well-being, in particular as regards access to healthy and sufficient food throughout the world. It bears upon the United Nations three pillars: human rights, peace and security, and development.
How can we achieve an inclusive discourse that both makes sure that plants are considered with respect and guarantees that all human beings have a say on matters that concern them?
Such is the question we must ask if we want to avoid seeing a privileged minority deprive others of their right of speech and action.
Cultivated plants in legal texts
DUS criteria and PVP Certificate (Plant Variety Protection Certificate)
Plant terminology in international legislation does not pay due respect to scientific accuracy, neither does it represent our vital need for plants, our emotional response to them, or the respect due to them.
Terms have been developed in the context of trade and industrialisation of cultivated plants.
The aim is to stimulate innovation and protect the rights of those who invent, produce and commercialise new varieties that have to be clearly identified and be reproduced unchanged to be marketable.
A new variety must be:
- distinct from existing varieties
- stable (i.e. reproduced unchanged
These three criteria, known as the DUS criteria, must be fulfilled to obtain a PVP Certificate. They have the merit of guaranteeing quality seeds, but are a barrier to cultivated diversity if applied too strictly.
The concept of patent has developed to protect the rights of authors and artists, and the rights of inventors of objects or technical processes. Such entities do not belong to the biological realm, and the extension of patents to biological beings such as plants is not without problem.
The question is whether the patent applies to
- the new plant variety only
- the process that led to the creation of the new variety
- the genetic sequence that has been identified as relevant for the creation of the new variety.
If the third option is chosen, all existing plants that carry the identified genetic sequence are under
threat of coming under patent protection, including plants that have been in existence for millennia
as a result of peasant selection and wild plants selected by nature without the help of humans.
European attempts to restore cultivated biodiversity
There has been growing concern worldwide about the disappearance of older cultivated varieties (around 75% worldwide as underlined by the FAO , and probably more today), and the European Union has been giving more attention to some older cultivated varieties.
The new term Conservation variety has emerged in Directive 2008/62/EC (providing for certain derogations for acceptance of agricultural landraces and varieties which are naturally adapted to the local and regional conditions and threatened by genetic erosion and for marketing of seed and seed potatoes of those landraces and varieties) and in Directive 2009/145/EC (providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties)
The phrase “varieties with no intrinsic value for commercial crop production” is indeed surprising: it is vague, judgemental, and contemptuous of those varieties.
It must be noted that the 2008 and 2009 directives are limited in scope: “landraces and varieties which are naturally adapted to the local and regional conditions and threatened by genetic erosion” excludes the adaptation of such varieties outside their region(s) of origin as well as varieties that are not threatened by genetic erosion.
• to be accepted as a conservation variety, a landrace or variety must present an interest for the conservation of plant genetic resources;
• some degree of distinctness, stability and uniformity are required (Article 2(2));
• the complexity for registration of a conservation variety deters many small actors.
The 2008 and 2009 directives have a limited impact on cultivated plant conservation and have been criticised for opening only very restricted opportunities for small actors. They can only operate within what is referred to as “niche markets“.
At the citizen and consumer end, people have become aware of the undesirable side-effects of conventional agriculture:
• food, air, water and soil contamination;
• biodiversity loss;
• human health problems;
• greenhouse gas emissions.
The package industrial seed-herbicide-pesticide-chemical fertilisers has revealed itself as a bad solution to feed humanity, and alternatives have to be found.
Organic agriculture should offer an alternative, but there is a shortage of plant varieties suitable to be grown under organic conditions. The EU new Organic Regulation has been raising hopes to remedy the errors of the past and present (Regulation 2018/848 – entry into force initially planned for January 2021, postponed to January 2022).
The EU new Organic Regulation has introduced new terms :
• organic varieties
• organic heterogeneous material.
The definitions of these terms in the Regulation is open to diverse interpretations. It had been understood by many that “heirloom varieties” would come under the organic heterogeneous material category, but the latest Delegated Act by the European Commission seems to indicate that they are not sufficiently heterogeneous to come under this category. As they seem to be too heterogeneous to come under the organic variety category, they are likely to be dangling outside European legislation – again. It has been put forward by some that “heirloom varieties” were covered by the 2008 and 2009 directives mentioned above – but we have seen that this is far from being the case.
Terms such as “heirloom varieties“, “traditional varieties“, “old varieties“, “peasants’ seeds“, etc are not part of EU terminology. EU legislation is therefore blind to the reality of plants commonly referred too under these labels.
EU terminology addresses plant innovation, not existing plants. This is a weak argument to let old varieties down, and it is more than time to give these old friends of humankind some attention and some legal reality. There will be a seven-year trial period for the Organic Regulation from 1 January 2022, so what time brings remains to be seen.
- Ecosystem and participative research, which has been ignored by the Green Revolution, must be encouraged.
- It has become vital to agree on a common language that respects both plants and humans, who have always been friends and partners for millennia.
- The right terms must be used in order to overcome the barriers to an ecosystem approach.
- The UN Declaration on the Rights of Peasants (UNDROP, 2018), a new instrument for Human Rights, marks a turning point in favour of such an approach.
- What about putting Human and Nature Rights above Trade and Industrial Rights rather than under them as it is the case now?
- What about putting the health and well-being of humans and ecosystems, rather than trade and profit, at the heart of our legislation?
- What about seeing human beings within ecosystems, rather than above them?
- What about seeing human beings as part of Nature, rather than beings who have an unlimited right of life and death over other beings?
- What about promoting a duty to care rather than a right to destroy?
Plants can no longer be seen only as genetic resources, atomised bits of life exploited for trade and profit. They are beings of their own right, who contribute to a balanced way of living for many other beings, including us, humans. Let’s call them plants, let’s call them by their names, let’s enjoy their presence and protect their diversity before it is too late, before we are left with nothing but tears to cry for their absence.
Download the full article presented in December 2020 at the
9th International Annual Conference on the Rights of Nature for Peace and Sustainable development United Nations, Geneva
Naming plants Implications for change and implementation of international legislationDownload PDF here
Implications pour l’évolution et la mise en oeuvre de la législation internationaleTélécharger le PDF ici
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