The existential crisis of climate change is rapidly “approaching the ‘point of no return’” and without action will soon “jeopardize critical food and water supplies.” While much attention is shed upon the climate crisis, intimately intertwined—and arguably a bigger threat to human stability—is the biodiversity crisis. The biodiversity crisis, or “the rapid loss of species and the rapid degradation of ecosystems,” is happening at a rate 100 to 1000 times faster than the natural extinction rate. Worldwide, the biodiversity crisis threatens more than one million species with serious risk of extinction due to climate change and habitat loss. In particular, current industrial agricultural systems accelerate biodiversity loss and amplify climate change, which in turn intensifies widespread food insecurity and has left over 800 million people without adequate nutrition. To combat these intertwining crises, global scale policy is imperative to encourage agricultural practices that sustain the earth’s fragile ecosystem and equitably support communities that depend on it. Although the International Seed Treaty is billed to promote food security for all, it fails to provide adequate biodiversity conservation or promote equity. As the Seed Treaty is currently negotiated, the seed industry holds an imbalance of power over farmers and Indigenous Peoples, treating seeds as commodities rather than a tool to promote biodiversity and equity.
This Article will first discuss each interlocking crisis in turn: food security, biodiversity loss, and climate change. This Article will then explore the inability of the International Seed Treaty to protect biodiversity and promote food and economic justice. Finally, this Article will provide recommendations for amendments to the Seed Treaty that will protect biodiversity, create nutrient-rich and accessible food systems, and promote equality.
International legal tools are crucial to combat climate change and protect the biodiversity that creates the foundation of the global food system. To understand the role that policy plays in protecting ecosystems that support food systems, this Part defines food insecurity, biodiversity loss, and climate change, and illustrates how they are all inextricably intertwined.
Food security occurs “when all people, at all times, have access to sufficient, safe and nutritious food to…maintain a healthy and active life.” However, over 820 million people worldwide are food insecure. Even those with access to adequate calories may remain malnourished as existing agriculture systems overproduce highly processed foods and staple grains, while underproducing healthier foods like nuts, fruits, vegetables, and seeds.
Yet, climate change threatens worldwide ability to produce an adequate supply of nutrient-dense foods. Climate change results in increasing temperatures, changing precipitation patterns, and greater frequency of extreme weather events, making it nearly impossible for farmers to successfully produce stabilized crops. Further, climate change affects the food supply by decreasing crop yield, quality, access, and stability. Because many crops rely on symbiotic relationships with other plants in the ecosystem to fight off pests and disease, loss of biodiversity results in crop vulnerability. Moreover, the increased CO2 in the atmosphere reduces the nutritional value of crops. Wheat, for example, loses 6 to 12 percent protein, 4 to 6 percent zinc, and 5 to 8 percent iron with increased atmospheric CO2, all of which are vital nutrients to human health.
While climate change threatens food crops, industrialized agriculture exacerbates climate change. One third of total anthropogenic global greenhouse gas (GHG) emissions come from agriculture, far more than the transportation sector (23 percent). This includes emissions from all aspects of agriculture, including land use, storage, transportation, packaging, processing, retaining food, and consumption. Specifically, crop and livestock activities contribute about 9–14 percent of emissions; land use change activities, such as deforestation, contribute 5–14 percent; and supply chain activities contribute 5–10 percent of GHGs.
Industrialized agriculture further intensifies climate change through deforestation, loss of soil, and loss of biodiversity. While shifting towards monocultures, humans have tamed one-half of wild ecosystems for farmland on our planet. Clearing land for agriculture, commercial logging, and other land uses drive deforestation, resulting in both CO2 emissions and the loss of potential carbon sinks. The loss of potential carbon sinks is due to nutrient-rich soil’s ability to store more carbon than any other medium. Biodiverse farming can prevent soil erosion, which averts erosion consequences such as low-nutrient soil’s inability to support plant growth and retain water. When soil does not retain moisture, local precipitation patterns change. Thus, increasing biodiversity to improve soil health is imperative to climate change mitigation.
Biodiversity is a critical safeguard of our worldwide ecosystems. It is the interlocking connection between the billions of species on earth, sustaining life and creating stable ecosystems. Biodiversity is important for stability on all ecosystem levels and is a key tenant in agroecology and “climate smart agriculture” (CSA). CSA describes hundreds of agricultural practices promoted by the Food and Agriculture Organization (FAO) that use plants to “capture and store atmospheric carbon dioxide in the soil to achieve”  the International Panel on Climate Change (IPCC) report goal of decreasing CO2 emissions by 45 percent to achieve net zero by 2050. CSA techniques “sustainably increase the productivity of a given crop (intensification), build resilience to climate change (adaptation), and reduce GHG emissions (mitigation).”
Agroecology, also referred to as regenerative agriculture, is an agricultural practice that applies ecological concepts to farming. This practice takes CSA techniques a step further by mimicking natural ecosystems and moving away from external inputs. Thus, creating a holistic vision of the food system and to uplift peasant farmers and their practices rather than promoting industrial agricultural corporations and commodified goods. For example, agricultural communities of the southwestern United States grow the Three Sisters: corn, beans, and squash. When grown together, corn provides a structure for the beans, beans fix nitrogen in the soil so other plants can absorb the nutrients, and the squash leaves shade the ground to improve moisture retention and deter weeds. Similarly, agroecology prioritizes biodiversity in the farming ecosystem rather than planting monocultures, to take advantage of symbiotic relationships between crops.
On an individual level, biodiversity in crops is imperative to human health and adaptation to climate change. Eating a variety of plants increases gut diversity, which supports brain processing and behavior, immune development, and metabolism. However, the industrialized system of agriculture grows and promotes only thirty edible species worldwide out of about 30,000 edible species available on our planet. The lack of diet diversity leaves one in three people worldwide with micronutrient deficiencies and without the ability to mitigate health issues associated with climate change, such as asthma. For example, broccoli sprouts have a high concentration of the compound sulforaphane, which boosts the body’s ability to neutralize toxins in the body, including those from air pollution. Therefore, food biodiversity is crucial to human health and adaptation to climate change consequences such as wildfires and pollution.
To protect the world’s biodiversity and safeguard the global food system, effective international legal tools are imperative. However, many of the current available tools–including the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement–only tangentially discuss agriculture, despite agriculture’s major implications for climate change. The UNFCCC is the principal international environmental treaty, ratified by 197 countries and entered into force in 1994, which aims to “[p]revent ‘dangerous’ human interference with the climate system.” Mainly, the UNFCCC focuses on adaptation to climate change through finance adaptation projects in developing countries. Although the UNFCCC has incorporated many issues over time, agriculture has yet to be integrated into the negotiations.
The Paris Agreement does not do much better for sustainable agriculture. As adopted at COP 21, the final version of the Paris Agreement dropped any mention of agriculture. However, the Paris Agreement mentions food security and food production twice. First, the preamble of the Paris Agreement states: “Recognizing the fundamental priority of safeguarding food security and ending hunger, and the particular vulnerabilities of food production systems to the adverse impacts of climate change.” Second, Article 2 discusses strengthening the global response to climate change, and lists “[i]ncreasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low [GHG] emissions development, in a manner that does not threaten food production” as one method. Still, while the Paris Agreement recognizes the necessity of balancing anthropogenic emissions and sources of carbon sequestration, the Paris Agreement provides limited means of promoting CSA practices.
However, a promising international treaty–the International Treaty on Plant Genetic Resources for Food and Agriculture (the “Seed Treaty”)–was subsequently adopted as the first ever binding multilateral agreement on sustainable agriculture. The FAO adopted the Seed Treaty to further its objective to “achieve food security for all” and ensure humans’ regular access to high-quality food to lead healthy and active lives. The Seed Treaty aims to “guarantee food security through the conservation, exchange and sustainable use of the world’s plant genetic resources for food and agriculture (PGRFA),” while ensuring fair and equitable benefit-sharing arising from the use of PGRFA. Further, the Seed Treaty attempts to promote seed biodiversity in agricultural, through recognizing the contribution of farmers, establishing a global system to provide access to plant genetic materials, and ensuring the global sharing of these genetic materials.
After seven years of negotiation, the Seed Treaty entered into force on June 29, 2004, and now has 147 signed parties. The Treaty is a conglomeration of characteristics of previous instruments. First, the Seed Treaty was presented as the International Undertaking on PGRFA (IU), which stated that genetic resources should be the common heritage of humanity. This meant that plant materials should be held in trust for future generations and protected from exploitation by individual nation states or corporations. Eventually, the IU was subsumed by the Convention on Biological Diversity (CBD). The CBD is a legally binding treaty originally meant to be an umbrella framework for in situ conservation of seeds, or conserving seeds from within their natural ecosystem as opposed to in a seed bank or lab. However, the CBD brought genetic resources under the jurisdiction and sovereignty of national governments, rather than common heritage. Therefore, the Seed Treaty was brought “in harmony” with the CBD, becoming the agricultural arm of the CBD. In contrast to the CBD, the Seed Treaty’s conservation is ex situ, or outside the habitat.
The Seed Treaty has four main features: farmers’ rights, sustainable use, the multilateral system (MLS), and access and benefit sharing. First, the Treaty recognizes the enormous contribution farmers have made to the ongoing development of the world’s plant genetic resources and calls to protect the traditional knowledge of these farmers. Second, the Treaty promotes sustainable use of plant genetic material through development and maintenance of diverse farming systems. However, the key operative element of the Treaty is the MLS. The MLS gives the Treaty’s ratifying nations free access to genetic resources from the sixty-four plants listed in the treaty. Under the MLS, parties to the Treaty “agree to establish a multilateral system, which is efficient, effective, and transparent” to “facilitate access to [PGRFA],” and to equitably share “the benefits arising from the utilization of these resources.” Finally, the access and benefit sharing article regulates how the MLS can be used. Those who access the materials must use them for research, breeding, and training for food and agriculture and cannot claim intellectual property rights over the resources in the form that they received them. When a commercial product is developed using the resources obtained from the MLS, the developer may either share the product for use or pay an equitable share of the resulting monetary benefits.
At first, the Seed Treaty was praised as a great step forward. At the intersection of three crises–the climate crisis, the biodiversity crisis, and global food insecurity–the treaty aims to conserve PGRFA to combat all three. It was meant to safeguard farmers’ rights, promote diversification in farming in the face of pressure to increase monocultures and uniform seed, and even channel some of the seed industry’s profits into conservation. However, the Seed Treaty is still in negotiations over fifteen years after the Treaty went into force. Many details are still at issue, but two major issues prevent Parties from adding more species to the list of sixty-four and from realizing the Treaty’s full potential. First at issue is whether PGRFA relates to the genetic sequencing of plants or to the plant material itself. Second at issue is the level of farmers’ participation and representation. Ultimately, without finalized negotiations, the Treaty has missed the mark in a number of ways, including failing to promote equity and biodiversity.
Another major way the Seed Treaty has continued to fail to reach expectations is a failure to promote equity. Failure to negotiate poses environmental, social, and economic justice issues, including failure to create obligations for farmers’ rights and to ensure equitable sharing of PGFRA. Most significantly, the Seed Treaty fails to spread influence of the industrial sector, where four corporations own 60 percent of the commercial seed sales. With this imbalance of negotiating power, there are no actual obligations for farmers’ rights. The original Treaty draft stated that farmers have “the right to use, exchange, and in the case of varieties no longer registered, market farm-saved seed.” However, the language now only guarantees those rights to farmers in countries with laws that do not preempt those rights.
Further, the farmers who develop resilient and biodiversity-conserving seeds that feed the world are not properly compensated for their knowledge or seeds, as the equitable sharing of plant genetic materials called for in the Treaty has not materialized. Moreover, fifteen years into the Treaty, farmers are not meaningfully represented to bring these issues to light. When industry, or large seed producers and manufacturers, accesses material, they often slightly modify the material to patent the new seed. This is permissible because article 12.3(d) only prohibits claiming intellectual property rights over PGRFA “or their genetic components, in the form received” from the MLS. The language “in the form received” does not specify what manipulation of the seed’s genetics bars a claim to intellectual property rights–a debate taken advantage of by the seed industry. After a patent, industry can share the new resource or pay into a research, education, and conservation fund. However, as of 2017, the industry had never paid and owed $270 million. Therefore, the adapted genetic material is sold and industry profits, but the farmers themselves do not.
In theory, the Seed Treaty helps the agricultural system both adapt to climate change and mitigate its effects. Specifically, the Treaty acknowledges PGRFA’s potential to improve crop genetics “essential in adapting to unpredictable environmental changes and future human needs,” and states a need to use of PGRFA to expand locally adapted plants. The Seed Treaty also encourages “the wider use of diversity of varieties and species . . . in order to reduce crop vulnerability and genetic erosion, and promote increased world food production compatible with sustainable development.” Thus, parties to the Treaty are able to use PGRFA to create and exchange seeds that mitigate climate change by planting seeds that use fewer external inputs such as pesticides, thereby reducing contamination of the ecosystem.
Still, despite its aspiration, the Seed Treaty does not efficiently conserve biodiversity because it solely uses ex situ practices for a limited number of species. First, it fails to be a good adaptation tool, as its focus on ex situ conservation impedes plants from adapting to specific variances in local climates. Second, the Seed Treaty only lists sixty-four protected crop species in its annex, which is not enough to promote diversity to spread the risk of climate destruction. Therefore, without both in situ and ex situ conservation of a consequential number of the world’s 30,000 edible species, the Seed Treaty fails to promote biodiversity in agriculture, limiting the effectiveness of agroecology and furthering climate change.
Nature is the solution. In addition to collecting a consequential store of seeds, the Seed Treaty must build resiliency in the food system through increased biodiversity and farmers’ rights. Rather than exploit farmers’ knowledge to create commodities, the Seed Treaty should incentivize biodiversity-enhancing food production that regenerates nutritious, biodiverse, and culturally appropriate food. This paper recommends three actions: (1) amplify peasant farmer voices in decision-making; (2) promote agroecology practices; and (3) support a just transition.
Uplifting voices of the most impacted and marginalized is imperative to ensure a world agricultural system that alleviates food insecurity and does not degrade the climate. In agricultural systems, peasant farmers or small-scale farmers–usually family-owned and women–produce 70 percent of the world’s available food using less than 25 percent of the world’s agricultural land. These farmers preserve most of the world’s seed diversity and protect ecosystems and cultural diversity of food. While often disproportionately affected by climate change, they are not given meaningful opportunity to participate in policy making. These farmers’ ability to work with politicians, folks in the agricultural industry, and the research community is vital to promote and support their biodiversity-conserving, resilient, nutrient-dense, agroecological systems.
To amplify these important voices, the governing body should create a working group with at least four representatives of farmers and farmers’ organizations from each region tasked with ensuring that the power of the industry does not undermine farmers’ needs. The working group must oversee transparency of the MLS–including how genetic resources are exchanged. Already, delegates from developing nations have called for effective representation of farmers, peasants, and Indigenous People, to recognize their contributions and vast knowledge. This request was met with opposition, citing that more representatives would slow the decision-making process. Still, elevating marginalized voices is vital to creating fair and equitable solutions and to preserving the traditional knowledge of sustainable farming systems able to feed the world without climate degradation.
In addition to representation, farmers should have sufficient property rights over seeds to use, exchange, and farm save, or save seeds from crops for further seasons. A critical issue for farmers’ rights is the meaning of the clause: “in the form it was received.” Not surprisingly, developed countries and seed industry representatives interpret this phrase broadly to include some genetic developments. This broad interpretation allows the industry to make miniscule changes in the seed’s genes and then patent the “new” seed. The interpretation intensifies the industry’s influence over the Treaty, leaving farmers without compensation and without the ability to continue producing biodiversity-conserving, resilient seeds. The clause “in the form it was received” should be deleted so that Article 12.3(d) reads: “Recipients shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources for food and agriculture, or their genetic parts or components.” This language shift guarantees sufficient modification of genetics before intellectual property rights are claimed.
Second, the Seed Treaty must incentivize the transformation of industrialized agriculture to agroecology practices. International decisionmakers need to implement policies that dissuade homogenous, chemical-heavy monocultures and incentivize biodiverse agroecology to support nature rather than work against it. For far too long, the U.S., Canada, and corporations, among others, have touted industrialized agriculture as the sole solution to the world’s hunger problems; however, agroecology produces more nutritious food, provides more economic opportunity, and supports, rather than degrades, the environment. The days of short-term economic gains from tech solutions to agriculture must end. Policies must continue to incentivize scientific research, farmers’ ability to seed save, and sharing of traditional knowledge, thereby promoting long-term sustainable food systems and economic prosperity. Educational programs must be instated to teach agroecology practices that mitigate effects of and increase resilience to climate change, as well as increase productivity of a diverse, nutritious food supply. Additionally, conservation must be done both in situ as well as ex situ, as in situ conservation better allows for crops to adapt to shifting climates and promotes biodiversity. For ex situ conservation strategies, small seed banks should be placed in local communities in addition to existing large seed banks.
Finally, a just transition is needed to encourage and support industrial farmers to shift to agroecology. Often used in relation to a shift from coal to renewable energy, just transition is defined as a “unifying and place-based set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.” The concept of a just transition arose in the late 1990’s when environmental activists sought to bridge a relationship with workers affected by environmental degradation. The term describes not just the destination, but more importantly, the means to get there by “redressing past harms and creating new relationships of power for the future through reparations.”
To create a just transition from industrialized agriculture to agroecology, international legal tools must address inequalities, ensure inclusiveness and participation from marginalized farmers, and develop a comprehensive framework to transform the current system of seed trading to benefit all people as well as the climate and nature. This Article recommends three main steps for a successful just transition: first, creating a dialogue between farmers on the ground and policy-makers; second, implementing the transition with skill development programs, infrastructure grants, and incentives for farmers; and third, developing policies that promote equitable knowledge sharing to develop and improve techniques. While the seed industry and industrial farmers may oppose a transition to agroecology for reasons such as the expense of the transition or worries about the economic effects, agroecology provides more economic opportunity than industrialized agriculture techniques. Moreover, the seed industry must be held accountable for the funds owed to the conservation fund of the Treaty. Those resources can be used to finance the transition, create monetary incentives and infrastructure support, and properly compensate farmers for their contributions of seeds and traditional knowledge.
Three interlocking crises–the climate crisis, the biodiversity crisis, and food insecurity–threaten global food security due to the world’s current overreliance industrialized agriculture practice. While many international legal tools exist to/have been created to deal with mitigation and adaptation of climate change, only the International Seed Treaty targets agriculture, the highest GHG-emitting industry. Still, the tool fails to promote biodiversity and equity due to an imbalance of power between the seed industry and farmers. To achieve the true potential of the Seed Treaty’s goal of guaranteeing food security through conservation and exchange of PGRFA while ensuring farmers’ rights, three policy shifts are recommended: (1) amplifying peasant farmer voices; (2) promoting agroecology; and (3) supporting a just transition.
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. Id. ; International Treaty on Plant Genetic Resources for Food and Agriculture pt. I, art. 1, Jun. 29, 2004, http://www.fao.org/3/a-i0510e.pdf [hereinafter “ITPGRFA”].
. See U.N. ITPGRFA, Closing Statement of the 8th sess. of the Governing Body (2019), available at http://www.ukabc.org/GB8_IPC_ClosingStatement_rev_EN.pdf (“This has been a tough week for all of us here.”).
. Id. . (arguing that the issue of Digital Sequence Information (DSI) “is not an issue for scientific debate only” but that it is a socio-political issue which, if not dealt with, “will jeopardize Farmers’ Rights to use, sow, sell, and exchange” PGRFA.)
. Id. . (“Acknowledging Article 9.2(c) of the Treaty that farmers’ participation in the decision-making processes is a MUST not just for the effective implementation of the Treaty but for the future of sustaining and enhancing seed and agricultural biodiversity which is essential for the food security of the world.”)
. Patrick Mulvany, Fiddling in Rome? Reflections on the International Seed Treaty, GRAIN (Nov. 21, 2019), https://www.grain.org/en/article/6360-fiddling-in-rome-reflections-on-the-international-seed-treaty.
. Id. . (“It is obvious that this system is turning into a dream come true for the corporate seed industry . . . [who] get guaranteed access to all the material in the system, most of which came from farmers,” whereas farmers and research centers are “explicitly required to make their own materials available in order to join.”)
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