Beyond access and benefit‐sharing: Lessons from the law and governance of agricultural biodiversity

• Published date: 01 July 2018
• Date: 01 July 2018
• Author: Elsa Tsioumani
• DOI: http://doi.org/10.1111/jwip.12094

DOI: 10.1111/jwip.12094

ORIGINAL ARTICLE

Beyond access and benefit-sharing: Lessons

from the law and governance of agricultural

biodiversity

Elsa Tsioumani

BeneLex Project, Strathclyde Centre for Environmental Law and Governance, Glasgow, UK

Correspondence

Elsa Tsioumani, ERC Research Fellow,

BeneLex project, Strathclyde Centre for

Environmental Law and Governance, Glasgow,

UK.

Email: elsa.tsioumani@strath.ac.uk;

elsa@iisd.org

Funding information

European Research Council, Grant number:

335592

The concept of fair and equitable benefit-sharing emerged

in the early 90s as a corollary to the principle of national

sovereignty over natural and genetic resources. In the

context of agricultural biodiversity use, it can be concep-

tualized in three ways: as a defensive tool to balance the

injustices enshrined in the intellectual property rights

system; as a development tool to reap part of the benefits

of the emerging biodiversity market; and as an incentive, to

reward and enable farmers' continued contribution to

conservation. This article seeks to assess the potential of

the concept in operationalizing fairness and equity in

agricultural biodiversity governance, in an increasingly

complex legal and policy landscape of conflicting rights and

policies. It briefly explains its emergence in the context of

the evolving principles of governance of agricultural

biodiversity; and analyses the structure and application

of the Multilateral System of Access and Benefit-sharing

established by the International Treaty on Plant Genetic

Resources for Food and Agriculture in the framework of

intellectual property- and human rights-related processes.

Identifying linkages, challenges and key lessons, which are

useful for a wide range of processes within and beyond the

international environmental law realm, it concludes that

the concept falls short of its promises. It thus calls for

imagining new dialogues and concepts to redefine the

© 2018 The Authors. The Journal of World Intellectual Property © 2018 John Wiley & Sons Ltd

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boundaries between what must remain in the public

domain, what may be managed as a commons and what

may be privatized.

KEYWORDS

access, agricultural biodiversity, fair and equitable benefit-

sharing, human rights, intellectual property, International Treaty

on Plant Genetic Resources for Food and Agriculture

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INTRODUCTION

Agriculture in the twenty first century faces multiple challenges. It needs to produce more food to feed a growing

population and more feedstocks for a potentially huge bioenergy market, with a smaller rural labor force. It needs to

contribute to overall development in many agriculture-dependent developing countries. It needs to adopt more

efficient and sustainable production methods in the face of reduced resources and increased environmental

pressures. It also needs to adapt to climate change (FAO, 2009). In other words, the world needs to produce more

food, using fewer resources, in a more challenging environment and in a context of globalization, rapid urbanization,

growing inequities and insecure land tenure (IAASTD, 2008, pp. 2–3). Never before has it been more important for

humanity to generate, use fairly and share equitably the benefits of, agricultural production, technology and

knowledge.

Agricultural biodiversity is the foundation of all agricultural production. The term is not defined in the Convention

on Biological Diversity (CBD).

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Subsequent decisions of the CBD Conference of the Parties may be used to interpret

the term (Brunnée & Toope, 2000). Agricultural biodiversity is therefore understood as:

a broad term that includes all components of biological diversity of relevance to food and agriculture, and all

components of biological diversity that constitute the agricultural ecosystems, also named agro-ecosystems:

the variety and variability of animals, plants and micro-organisms, at the genetic, species and ecosystem

levels, which are necessary to sustain key functions of the agro-ecosystem, its structure and processes (CBD,

2000, Appendix).

Agricultural biodiversity is the outcome of interactions among genetic resources, the environment, and the

knowledge, management systems and practices used by farmers. It represents an excellent example of the potential

for positive interaction between humans and nature (Pimbert, 1999). It is inextricably linked both to the local

environment and climate, and to human ingenuity and cultural preferences.

In the form of seeds or other plant propagating material, plant genetic resources for food and agriculture (PGRFA)

are the necessary building blocks for crop improvement, and thus the world's agriculture and food production. PGRFA

are used either by farmers on farm aiming at maintaining the quality and yield of their crops or by professional

breeders in ex situ facilities. As such, they play a crucial role in farmers' livelihoods, agricultural development and world

food security (FAO, 2010).

Crucially, unlike other natural resources, plant genetic resources are renewable, and usually a very small quantity

is required for breeding, research and development. The economic benefit is largely linked to the information

contained in the resource, rather than the resource itself (Guneratne, 2012, p. 69). In addition, the final product can be

used as propagating material and vice versa. Another characteristic of PGRFA is that conservation and use are linked:

conservation is performed through use, and unless an agricultural variety is used, it cannot be conserved for more than

a few decades before it eventually dies (FAO, 2012, pp. 29–35). Traditional crop varieties serve as reservoirs of

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