The world’s agribusiness corporations are pursuing their attempts
to privatize and monopolize our seeds. Behind their efforts is a clear
goal: to make the age-old practice of saving and breeding seeds into a
crime and gain monopoly control over seeds. Latin America has not
escaped these attacks.(Photo: GRAIN)
Much of this corporate activity is being carried out under the aegis
of an international convention known as UPOV, but not all of it – some
Latin American governments have come up with farm-unfriendly provisions
of their own devising, involving patents on biotechnology “events,”
health standards, marketing standards, certification laws, various types
of record keeping requirements, tax rules, the misnamed “good
agricultural practices,” research programs, seed market establishment
policies, and more.
Eight years ago we wrote, “If we look at them today, seed laws are
all about repression. They’re about what farmers can’t do. They dictate
what kind of seeds can’t be sold, can’t be exchanged and in some cases
can’t even be used. All in the name of regulating trade and protecting
food growers! In this sense, seeds laws go hand in hand with
intellectual property rights (IPR) regimes like plant variety protection
and patents. The two kinds of laws – marketing regulations and property
rights – reinforce each other.”
If anything has changed since then, it is that privatization
strategies have become more numerous, extreme, and ambitious. What the
multinationals and the governments were not expecting was the level of
the popular resistance that has emerged at the national and regional
levels.
What is UPOV?
The International Union for the Protection of New Varieties of Plants
(UPOV) is an intergovernmental organization with its head office in
Geneva, Switzerland. UPOV came into being with the adoption of the
International Convention for the Protection of New Varieties of Plants.
The Convention was adopted in Paris in 1961 and was revised in 1972,
1978, and 1991. The mission of UPOV is, according to the organization,
“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.”2 In UPOV-speak, “protection” means privatization.
The history of UPOV is that of an ongoing and apparently limitless
expansion of seed company rights along with a concomitant shrinkage of
farmers’ rights and freedoms. The original convention only granted
property rights over varieties developed by the party requesting them;
it granted little more than an exclusive right to market a private
variety and did not establish specific sanctions. With its subsequent
revisions, UPOV now grants monopoly rights over “discovered” varieties
and the production, marketing, export and import thereof. In addition,
it allows property owners to apply for the confiscation of crops,
plantations, harvests, and products derived from the harvest. It even
allows companies to file criminal complaints, which can lead to prison
terms for farmers.
UPOV 91 is the version of the convention now being imposed around the
world under the pretext of “protection.” However, it has been clearly
demonstrated that UPOV 91 violates farmers’ individual and collective
right to save seed for replanting and allows corporations to monopolize
biodiversity. These provisions give the corporations total commercial
control over seeds and knowledge that were once owned collectively by
whole communities. A further menace represented by UPOV is that it
accelerates the erosion of biodiversity by promoting varietal
uniformity. This is tremendously risky because uniformity can lead to
crop loss and greater food insecurity. Finally, seed privatization
hinders research and the free flow of knowledge.
In Latin America and the Caribbean, the following countries are UPOV
members: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica,
Ecuador, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic,
Trinidad and Tobago, and Uruguay. Of these, only Costa Rica, Panama, the
Dominican Republic, and Peru are currently applying UPOV 91.3
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The bottomless pit of corporate ambition
The seed laws now being drafted amount to the wholesale application of UPOV 91 and in some cases go even further. For example:
a) They allow for the privatization of
“discovered” varieties. Not only is this nonsensical from the standpoint
of intellectual property law (only human inventions are patentable), it
is absurd when applied to plant varieties, which are mostly the work of
many human beings over long periods of time. In other words, the new
laws allow companies or research institutes to take what does not belong
to them: the indigenous plant varieties developed by farmers. This
theft is facilitated by the absence of any provision in the laws that
would prevent varieties shown to be already circulating in peasant
agriculture from being declared “new.”
b) The theft becomes truly outrageous
where new laws grant property rights over “similar” varieties as well,
regardless of how long these have been in existence. In other words,
UPOV laws legalize retroactive theft. One such clause, included in
Resolution 970, put forward by Colombian Institute for Livestock and
Agriculture (ICA), touched off a farmers’ strike that forced the
government to withdraw the resolution.
c) Penalties for those who refuse to make
sense out of this nonsense are significantly increased. Not only can
seeds be confiscated, so can the crops, plantations, harvests, and
products derived from them. The offences are summary in nature, meaning
that complainants can avoid lengthy evidentiary proceedings and still
obtain the confiscation of the materials in question. Practical
experience provides good reasons to fear that the corporations will try
to scare farmers and peasants who dare to rebel by hitting them with
multiple complaints under these laws. The situation is exacerbated by
the option for the corporations to file criminal complaints, which can
result in jail terms for the farmers.
This is the heart of the UPOV laws. Some of them go even further: in
the Chilean case, the law initially gave enforcement power to the seed
companies, creating a de facto private police. The Argentine bill
creates a mandatory registry of “seed users” – meaning anyone who grows
food, for a living or otherwise.
And the UPOV laws themselves are only part of the story.
Certification and marketing laws have been a central feature of seed
privatization campaigns in Mexico and Colombia. Brazil has turned to
marketing standards. In Argentina, the privatization of biotechnological
“events” is making unfortunate headway, while throughout the Southern
Cone, corporations are creating a parallel legal universe by forcing
their customers to sign royalty-bearing private contracts. Almost
everywhere we find credit and technical assistance policies being made
contingent on the use of seeds produced by corporations or research
institutes.
All these mechanisms work together towards a single goal: absolute corporate control over seeds.
Resistance is growing and spreading
But Latin America is also where citizens have successfully resisted
many such attempts to take away their rights. The following is a rundown
of ongoing popular and peasant campaigns that have been key to the
defeat of these corporate machinations.
Chile
The UPOV offensive in Chile differs little from what is taking place
in other countries. Various provisions facilitate the appropriation of
local seeds by corporations and criminalize peasants’ use of their own
seeds. Absurd situations are created in which companies registering any
variety as their own can stop people from using varieties “similar” to
it. And the threat of confiscation of seeds, crops, and plantations is
among the new measures imposed on peasant families who dare to continue
doing what they have always done.
What the corporations and the government did not expect was the
societal reaction against these measures. The first act in the drama was
the passage on first reading, in 2010, of the UPOV 91-compliant Seeds
Act, this over fierce opposition by peasant organizations (especially
ANAMURI and CLOC-VC) and civil society groups.
Despite this initial defeat, the organizations continued to raise
public awareness of the dangerous aspects of the act. As a result of
their efforts, by the time Chile joined UPOV 91, domestic opposition had
become much broader and more vehement. A group of senators appealed to
the Constitutional Court to declare Chile’s UPOV membership
unconstitutional. This initiative too was unsuccessful, but public
education efforts continued under the impetus of the widespread social
mobilization that has taken place since 2011.
Today, rejection of seed privatization and the “UPOV 91” Act has
become a broad-based national concern which has, so far, kept the bill
from being passed. Under pressure from the US government, the right-wing
government fast-tracked the bill, attempting to push it through before
the opposition could react. This time, mobilization took place all
across the nation and involved high-profile marches, Internet-based
information campaigns, radio programs, TV interviews, information
sessions in rural communities and universities, meetings with religious
authorities, conversations and discussions with senators, and so forth.
The impact of all this mobilization work was to break the silence on
the issue in Chile and to convince a majority of senators (21 of 38) to
vote against the bill. Faced with this new situation, the government
withdrew the bill, intending to postpone voting until after the November
2013 elections, when a number of its senatorial opponents will have
retired.
At time of writing, in early October, peasant and civil society
organizations are continuing to mobilize to ensure that the bill goes
down to defeat.
Argentina
The bill to amend the Seeds Act in Argentina is the
fruit of active lobbying by Monsanto beginning in 2003. It was then that
the company began to request “legal certainty” for its investments in
GMOs. Since the government of the day was not receptive to its
overtures, the company announced that it was withdrawing from the
country and would not introduce new events. In its battle to collect
royalties, Monsanto asked the European courts to stop whole shiploads of
GE soybeans from departing for Argentina because Argentina refused to
pay for the genes they allegedly contained. The courts threw out
Monsanto’s claim.
At the end of the last decade, the government repeatedly announced
that it was going to table a new Seeds Act in Congress, but it was only
in 2012 that a radical change of official stance took place. In June
2012, President Cristina Fernández announced at the Council of the
Americas that further to conversations with Monsanto, the company would
be making new investments in the country, focusing on a GE corn
processing plant in the Malvinas Argentinas district of the city of
Córdoba.
A few months later, in a joint press conference, Minister of
Agriculture Norberto Yahuar and Pablo Vaqueros, President of Monsanto
Argentina, announced the approval and launch of a new genetically
modified soy variety called “Intacta” (resistant to glyphosate and
insecticide) and an amendment to the Seeds Act to protect investors
“because of the high costs they incur.” A commitment was made to table
the corresponding bill in Congress before the end of 2012.
Civil society organizations reacted immediately, and with even
greater vehemence when it became known that the draft under discussion
was being negotiated in secret by the Ministry of Agriculture with the
large seed trade associations and landowners. The call to reject the
Seeds Act amendments spread across society and was taken up by a great
many associations. It led to a range of oppositional activities,
mobilizations, presentations, and documents.
An analysis of the leaked draft, obtained by its opponents, showed
that it includes amendments to the existing act (dating from 1973)
designed to incorporate nearly the entirety of UPOV 91 into domestic
law.
The National Indigenous Peasant Movement, Friends of the Earth, and
GRAIN started a petition campaign which, by late November, had garnered
the support of more than 500 civil society organizations and 3,500
individuals.
The document “10 motivos para luchar contra el proyecto de ley que pretende privatizar las semillas en la Argentina”4
reads as follows: “the bill does not protect knowledge or biodiversity;
it merely promotes privatization and protects property rights to what
is in fact the collective heritage of our peoples, especially the
peasant and indigenous communities. In this way, it puts forward an
unacceptable principle: that it is possible and acceptable to privatize
knowledge and various life forms.” It continues: “This paves the way to
further expropriation and privatization of agricultural and wild
biodiversity in Argentina. The bill makes possible the greater
privatization of Argentina’s genetic resources and native biodiversity
by expanding so-called plant breeders’ rights. In addition, it makes
illegal or gravely restricts practices that have existed since the
beginning of agriculture: seed selection, breeding, improvement, saving,
reproduction, and exchange based on the previous harvest.”
The document concludes with a call to “reject this bill, which
represents a grave attack on every inhabitant of this country.
Agriculture fulfills an eminently social function, that of sustaining
and feeding the entire population. To jeopardize the food security and
sovereignty of Argentina by granting new privileges to transnational
agribusiness corporations is to take the road of surrendering our
national sovereignty.”
Due to the broad-based rejection of the initiative, the bill never
made it into Parliament, and its opponents claimed a partial victory. In
the initial months of 2013, the Minister of Agriculture announced that
the bill would not be sent to Congress in an election year. However, he
soon announced (under pressure from Monsanto, it seems clear) that the
bill would be submitted to Congress right after the elections.
In the meantime, Monsanto is keeping up its offensive by forcing
people who buy the new “Intacta” RR2 soybeans to sign an “extended
royalty” contract. Monsanto states on its web site for this variety5
that “growers wishing to opt, at their own discretion, to use soybean
seeds containing the Intacta RR2 technology must sign a limited-use
license with Monsanto for the technology.” This provision attests to a
very peculiar understanding of the concept of discretion that verges on
the illegal.
Argentine civil society continues to monitor these developments
closely and to act accordingly. One important step is a blockade,
spearheaded by the groups “Asamblea Malvinas Lucha por la Vida” and
“Mothers of Barrio Ituzaingó Anexo,” of the intended construction site
for a Monsanto plant, which has been ongoing for three weeks.
Colombia
In April 2012, the Colombian Congress passed Bill 1518 adopting the
International Convention for the Protection of New Plant Varieties, thus
complying with its obligation to protect the interests of agribusiness
corporations under the free trade agreement (FTA) with the United
States.
Colombian civil society immediately denounced the fact that the law
had been passed without regard for higher-order provisions and
international legal frameworks which obligate the government to
guarantee the rights of everyone under its jurisdiction and, more
specifically, to preserve the country’s food sovereignty and security.
According to Grupo Semillas and the “Semillas de Identidad” campaign,
UPOV was ratified “without regard for the fundamental right of ethnic
minorities to prior consultation,” and its main goal is to achieve “the
granting and protection of plant breeders’ rights. The strategy begins
by establishing a set of conditions that native and indigenous varieties
cannot meet because their genetic improvement was the result of farmers
operating according to entirely different principles from those of
modern plant breeders. It continues by enacting provisions for the
protection of [corporate] economic interests and essentially forces
farmers to use these seeds at the behest of the transnationals.”6
Based on this analysis, a number of organizations appealed to the
Constitutional Court and, in December 2012, obtained a decision
declaring Law 1518 unenforceable.7
In so doing, they halted the progress of UPOV 91, arguing that the
government had failed to consult the indigenous and tribal peoples in
regard to legislative or administrative measures affecting them
directly, as required by Article 6 of Convention 169 of the
International Labour Organization (ILO). While the threat of UPOV’s
approval still looms, the consultation process required by the Court has
yet to be put in place. This decision caused consternation on the part
of the United States, which asserted in the media its entitlement to sue
Colombia for losses caused by the Constitutional Court’s decision to
declare the unenforceability of Laws 1518 and 1520, since these laws
were intended to bring the country into compliance with the FTA.8
During 2013, events related to peasant struggles put the fate of
seeds back in the spotlight. A documentary film, 9.70: la historia de la
semilla privatizada,9
by the young director Victoria Solano, sent shock waves through
Colombian society as people woke up to the impact of seed privatization.
Resolution 9.70 of the ICA (Colombian Institute for Livestock and
Agriculture) dates from 2010 and is intended to control the production,
use, and marketing of seeds. This resolution applies the concepts of
intellectual property law to seeds and was passed as a requirement for
approval of the US-Colombia FTA. “The documentary analyzes the impact of
the resolution, focusing on the case of Campoalegre, a town in southern
Colombia where it was applied. In 2011, the ICA went to the town and
confiscated 70 tons of rice. It later returned with law enforcement
officials, and ultimately dumped the rice into a landfill, claiming that
it was illegal,” said the filmmakers.
The powerful public impact of the documentary coincided with the
beginning of peasant mobilizations on August 19, which shook the
country. The peasants’ rejection of Resolution 9.70 became a central
component of their demands. As a result of these campaigns, Resolution
9.70 was “frozen for two years” – an immense triumph for Colombia’s
peasants and civil society organizations. However, the central demand of
the people of Colombia has yet to be granted: the outright repeal of
the resolution along with any attempt to impose UPOV 91 through other
channels.10
Venezuela
In Venezuela, a bill to amend the Seeds Act is making its way through
the legislative process and causing great concern among civil society
organizations. The situation there is complex because the initiative
inaugurates an intellectual property regime even as it takes the
salutary step of banning GMOs.
The GMO-free Venezuela campaign11
has been monitoring this bill and has called for “a ban on transgenic
seeds in the country, a ban on any type of intellectual property rights
or patents over seeds, and an expanded debate over the bill with a view
to building an appropriate legislative framework in conjunction with the
revolutionary popular collectives and movements.”
The bill’s proponents have stated in public that it will ban GMOs in
Venezuela, but the popular campaign has expressed concern in regard to
the “language of the bill, which continues to recognize plant breeders’
rights, does not clearly define the mechanisms that will be used for
surveillance and punishment of those who violate the transgenic seed
provisions, establishes a strict oversight regime for indigenous or
common seed, establishes sanctions that may result in the
criminalization of traditional seed exchange practices, and still lacks
mechanisms for public participation. We consider all these aspects to be
issues of concern to the popular movement in the continuing debate over
this bill.”
The commitment to a broad public debate and the intense mobilization
on the part of Venezuelan social movements have opened up the political
space necessary for amendments to be made to the bill so that it meets
popular demands.
Mexico
With the entry into force of NAFTA, a sequence of laws were passed12 – first the Plant Varieties Act (1996),13 followed by the Biosafety Act (2005)14 and the Seeds Act (2007)15
– whereby the Mexican legal system took a big step towards seed
registration, certification, patenting, and privatization. It is a clear
attempt to force farmers to use lab-created seeds and to criminalize
the saving and exchange of native seeds, even though these practices
have formed the basis of indigenous, peasant, and indeed the entire
country’s food systems for millennia.
Although Mexico did not sign the 1991 version of the agreement, its
Seeds Act of 2007 explicitly provides for the criminalization of native
seeds by establishing arbitrary quality and “stability” criteria that
essentially amount to the freezing of varietal traits in time. It is as
if seed evolution itself is being outlawed, and farmers are being made
accomplices to the crime.16
This law, along with the Plant Varieties Act of 1996 (enacted to
comply with UPOV) and its regulation of 1998, paved the way for the
privatization of plant varieties and breeding materials, as well as
for-profit variety concessions and sales under regulations highly
favourable to the corporations.
In 2012, a vast coalition of peasant and civil society organizations
succeeded in halting the UPOV 91 amendments to the Plant Varieties Act.
The amendments would have had the grave outcome of granting private
breeders “monopolies to obtain exclusive profits from the sale of seeds
and other plant material for up to 15 years, or 18 in the case of
perennial ornamental, forest, or orchard plants – even when the plants
they used to develop the new varieties are in the public domain.”17
Genetically modified organisms were included pursuant to the Biosafety
Act, which was absurd “since GMOs are created by introducing genetic
material from non-plant species.”18
The “reloaded” version of the Plant Varieties Act would have given a
key boost to the Seeds Act of 2007 in that it would have inaugurated a
seeds policy along with a search and seizure system for uncertified or
unregistered seed – absurdly termed “pirate seed” for lack of an
invoice, when these varieties have been saved and exchanged for at least
6000 years. The amendments to the Plant Varieties Act have been
postponed, but it would be a mistake to suppose they have been
abandoned.19
In the rest of Latin America and the Caribbean, the situation varies
depending on whether or not an FTA has been signed with the United
States. This is the case for Costa Rica and the Dominican Republic,
which have had to change their domestic laws in accordance with CAFTA,
and for Peru, which also has an FTA with the United States. As for the
rest of the continent, while there are no active attempts to push
through UPOV 91, the general pattern of industry influence over
government continues, and we may well see a push for UPOV in the coming
months (e.g., in Paraguay).
Resistance bears fruit
In the context of the ascendancy of agribusiness in the region, it is
surprising that resistance to corporate control of seeds has borne
fruit in nearly every country where campaigns have been mounted.
In Argentina, the draft of the Seeds Act being discussed in secret
never emerged from the Ministry of Agriculture to be tabled in
Parliament.
In Chile, societal mobilization helped secure a majority of senators to vote against the “Monsanto Bill.”
In Colombia, peasant mobilization put a temporary stop to Resolution 9.70.
In Venezuela, there are firm commitments to keep the principles upheld by Hugo Chávez from being betrayed.
And in Mexico, societal campaigning prevented the Federal Plant Varieties Act from being revised for compliance with UPOV 91.
This brings us to October 2013. We don’t know what will happen in the
coming months, but it’s clear that these wins do not mean the battle is
over. The social movements are well aware of the continuing challenges
involved with coordinating activities, raising awareness, and finding
new allies to fend off future attacks. If we are to defend seeds as a
heritage for all peoples, nothing less will do. We must all continue to
dedicate ourselves to the success of the Seeds Campaign of Via
Campesina.
© 2013 GRAIN
GRAIN is a small international
non-profit organisation that works to support small farmers and social
movements in their struggles for community-controlled and
biodiversity-based food systems
Source: http://www.commondreams.org/view/2013/11/03-1
