Free Trade” Agreements Are Criminalising Farmers’ Seeds for the Benefit of Multinational Corporations

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FA Note:  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.

What could be more rou­tine than sav­ing seeds from one sea­son to the next? After all, that is how we grow crops on our farms and in our gar­dens. Yet from Guatemala to Ghana, from Mozam­bique to Malaysia, this basic prac­tice is being turned into a crim­i­nal offence, so that half a dozen large multi­na­tion­al cor­po­ra­tions can turn seeds into pri­vate prop­er­ty and make mon­ey from them.

But peo­ple are fight­ing back and in sev­er­al coun­tries pop­u­lar mobil­i­sa­tions are already forc­ing gov­ern­ments to put seed pri­vati­sa­tion plans on hold.

GRAIN has pro­duced an updat­ed dataset Trade agree­ments pri­vatis­ing bio­di­ver­si­ty (plain text) on how so-called free trade agree­ments are pri­vatis­ing seeds across the world.

Guatemala’s trade agreement with the US obliges it to adhere to the UPOV Convention. But popular resistance forced the government to repeal a national law passed for this purpose. (Photo: Raúl Zamora)

Guatemala’s trade agree­ment with the US oblig­es it to adhere to the UPOV Con­ven­tion. But pop­u­lar resis­tance forced the gov­ern­ment to repeal a nation­al law passed for this pur­pose. (Pho­to: Raúl Zamo­ra)

Guatemala’s trade agree­ment with the US oblig­es it to adhere to the UPOV Con­ven­tion. But pop­u­lar resis­tance forced the gov­ern­ment to repeal a nation­al law passed for this pur­pose. (Pho­to: Raúl Zamo­ra)
Trade agree­ments have become a tool of choice for gov­ern­ments, work­ing with cor­po­rate lob­bies, to push new rules to restrict farm­ers’ rights to work with seeds. Until some years ago, the most impor­tant of these was the World Trade Organization’s (WTO) agree­ment on Trade-Relat­ed Aspects of Intel­lec­tu­al Prop­er­ty Rights (TRIPS). Adopt­ed in 1994, TRIPS was, and still is, the first inter­na­tion­al treaty to estab­lish glob­al stan­dards for “intel­lec­tu­al prop­er­ty” rights over seeds.1 The goal is to ensure that com­pa­nies like Mon­san­to or Syn­gen­ta, which spend mon­ey on plant breed­ing and genet­ic engi­neer­ing, can con­trol what hap­pens to the seeds they pro­duce by pre­vent­ing farm­ers from re-using them – in much the same way as Hol­ly­wood or Microsoft try to stop peo­ple from copy­ing and shar­ing films or soft­ware by putting legal and tech­no­log­i­cal locks on them.

But seeds are not soft­ware. The very notion of “patent­ing life” is huge­ly con­test­ed. For this rea­son, the WTO agree­ment was a kind of glob­al com­pro­mise between gov­ern­ments. It says that coun­tries may exclude plants and ani­mals (oth­er than micro-organ­isms) from their patent laws, but they must pro­vide some form of intel­lec­tu­al prop­er­ty pro­tec­tion over plant vari­eties, with­out spec­i­fy­ing how to do that.

In Costa Rica, the fight against the Central American Free Trade Agreement was very much a fight to prevent the patenting of the country’s unique wealth of biodiversity and against UPOV – the Union for the Protection of New Plant Varieties. (Photo: Fighting FTAs)

In Cos­ta Rica, the fight against the Cen­tral Amer­i­can Free Trade Agree­ment was very much a fight to pre­vent the patent­ing of the country’s unique wealth of bio­di­ver­si­ty and against UPOV – the Union for the Pro­tec­tion of New Plant Vari­eties. (Pho­to: Fight­ing FTAs)

Trade agree­ments nego­ti­at­ed out­side the WTO, espe­cial­ly those ini­ti­at­ed by pow­er­ful economies of the glob­al North, tend to go much fur­ther. They often require sig­na­to­ry coun­tries to patent plants or ani­mals, or to fol­low the rules of the Gene­va-based Union for the Pro­tec­tion of New Plant Vari­eties (UPOV) that pro­vide patent-like rights over crop vari­eties. Whether in the form of patent laws or UPOV, these rules gen­er­al­ly make it ille­gal for farm­ers to save, exchange, sell or mod­i­fy seeds they save from so-called pro­tect­ed varieties.2 In fact, in 1991 the UPOV con­ven­tion was mod­i­fied to give even stronger monop­oly pow­ers to agribusi­ness com­pa­nies at the expense of small and indige­nous farm­ing com­mu­ni­ties. This 1991 ver­sion of UPOV now gets wide­ly pro­mot­ed through trade deals.

Onslaught of FTAs

The North Amer­i­ca Free Trade Agree­ment – signed by Mex­i­co, Cana­da and the US, at about the same time TRIPS was being finalised – was one of the first trade deals nego­ti­at­ed out­side the mul­ti­lat­er­al are­na to car­ry with it the tighter seed pri­vati­sa­tion noose. It oblig­ed Mex­i­co to join the UPOV club of coun­tries giv­ing exclu­sive rights to seed com­pa­nies to stop farm­ers from recy­cling and reusing cor­po­rate seeds. This set a prece­dent for all US bilat­er­al trade agree­ments that fol­lowed, while the Euro­pean Union, the Euro­pean Free Trade Asso­ci­a­tion and Japan also jumped on the same idea.3

A non­stop process of diplo­mat­ic and finan­cial pres­sure to get coun­tries to pri­va­tise seeds “through the back door” (these trade deals are nego­ti­at­ed in secret) has been going on since then. The stakes are high for the seed indus­try. Glob­al­ly, just 10 com­pa­nies con­trol 55% of the com­mer­cial seed market.4

But for these cor­po­ra­tions, that mar­ket share is still not enough. Across Asia, Africa and Latin Amer­i­ca, some 70–80% of the seeds farm­ers use are farm-saved seeds, whether from their own farms or from neigh­bours or near­by com­mu­ni­ties. In these uncon­quered ter­ri­to­ries, the agribusi­ness giants want to replace seed sav­ing with seed mar­kets and take con­trol of those mar­kets. To facil­i­tate this, they demand legal pro­tec­tions from gov­ern­ments to cre­ate and enforce cor­po­rate monop­oly rights on seeds. This is where free trade agree­ments come in as a per­fect vehi­cle to force coun­tries to change their laws.

Lat­est trends

GRAIN has been track­ing how trade deals signed out­side the mul­ti­lat­er­al sys­tem are coerc­ing coun­tries to adopt the industry’s wish-list of intel­lec­tu­al prop­er­ty rights for seeds, and ratch­et up glob­al stan­dards in that process, since 15 years. A recent update of our dataset shows that this trend is not let­ting up. In fact, there are wor­ri­some signs on the hori­zon.

◦ The most impor­tant recent gains for Mon­san­to, Dupont, Lima­grain and Syn­gen­ta – the world’s top seed com­pa­nies – have come from new trade deals accept­ed by Latin Amer­i­can states. In 2006, the US (home to Mon­san­to and Dupont) closed major deals with Peru and Colom­bia forc­ing both coun­tries to adopt UPOV 1991. The EFTA states (home to Syn­gen­ta) did the same in 2008 and the EU (home to Lima­grain) in 2012.5 In Cen­tral Amer­i­ca, a sim­i­lar pat­tern occurred. The US secured a very pow­er­ful Cen­tral Amer­i­ca Free Trade Agree­ment in 2007, forc­ing all coun­tries to adhere to UPOV 1991. EFTA did the same last year.

March Against Monsanto in Accra, Ghana – Under a clause included in an interim Economic Parternship Agreement concluded with the EU, Ghana’s government will have to negotiate rules on intellectual property, including traditional knowledge and genetic resources.

March Against Mon­san­to in Accra, Ghana – Under a clause includ­ed in an inter­im Eco­nom­ic Partern­ship Agree­ment con­clud­ed with the EU, Ghana’s gov­ern­ment will have to nego­ti­ate rules on intel­lec­tu­al prop­er­ty, includ­ing tra­di­tion­al knowl­edge and genet­ic resources.

◦ An impor­tant step towards stronger pro­pri­etary seed mar­kets was recent­ly tak­en in Africa. After ten years of talks, Eco­nom­ic Part­ner­ship Agree­ments (EPAs) were con­clud­ed between the EU and sub-Saha­ran African states in 2014. Most of them “only” lib­er­alise trade in goods for now, but also con­tain a com­mit­ment to nego­ti­ate com­mon intel­lec­tu­al prop­er­ty stan­dards with Brus­sels. The expec­ta­tion is that those stan­dards will be based on what the Caribbean states already agreed to in their 2008 EPA: an oblig­a­tion to at least con­sid­er join­ing UPOV. This is sig­nif­i­cant because until now African states have been under no oblig­a­tion to adopt UPOV as a stan­dard, and actu­al­ly tried to come up with their own sys­tems of plant vari­ety protection.6 And while it’s true that African enti­ties like the anglo­phone African Region­al Intel­lec­tu­al Prop­er­ty Organ­i­sa­tion (ARIPO) and the fran­coph­o­ne African Intel­lec­tu­al Prop­er­ty Organ­i­sa­tion (OAPI) are already join­ing UPOV, under the EU trade deals, coun­tries them­selves would be the ones to join. Fur­ther towards the hori­zon, Africa is har­mon­is­ing with­in itself as its sub­re­gion­al trade blocs merge and unite to form a sin­gle con­ti­nen­tal free trade zone, sup­pos­ed­ly by 2017. This is expect­ed to bring with it an inter­nal har­mon­i­sa­tion of intel­lec­tu­al prop­er­ty laws across the con­ti­nent, like­ly tight­en­ing the noose even fur­ther.

◦ The Trans-Pacif­ic Part­ner­ship (TPP) agree­ment is pos­si­bly the scari­est FTA under nego­ti­a­tion right now in terms of what it may do to farm­ers’ rights to con­trol seeds in Asia and the Pacif­ic. This is because the US, which is lead­ing the talks with 11 oth­er Pacif­ic Rim coun­tries, is play­ing hard­ball. Leaked nego­ti­at­ing text from May 2014 shows the US call­ing not only for UPOV 1991 to be applied in all TPP states but also for the out­right patent­ing of plants and ani­mals. We don’t yet know whether these demands will also appear in the Transat­lantic Trade and Invest­ment Part­ner­ship (TTIP) cur­rent­ly being nego­ti­at­ed between the US and the EU, as the text remains inac­ces­si­ble to the pub­lic.

◦ While the extent of what has to be pri­va­tised expands, so do the penal­ties for dis­re­spect­ing these norms. Under numer­ous FTAs, coun­tries like the US require that farm­ers who infringe on these new intel­lec­tu­al prop­er­ty rights on seeds face pun­ish­ment under crim­i­nal law instead of civ­il law. In some cas­es, like the recent­ly con­clud­ed EU-Cana­da Com­pre­hen­sive Eco­nom­ic and Trade Agree­ment (CETA), the mere sus­pi­cion of infringe­ment could see a farmer’s assets seized or have their bank accounts frozen.7

Big bat­tles heat­ing up

Image right: Solidarity march in Melbourne, Australia: even Colombians far from home were shocked to learn how the US and EU trade deals have pushed Bogotá to criminalise farmers’ seeds. (Source: Erik Anderson/Flickr)

Image right: Sol­i­dar­i­ty march in Mel­bourne, Aus­tralia: even Colom­bians far from home were shocked to learn how the US and EU trade deals have pushed Bogo­tá to crim­i­nalise farm­ers’ seeds. (Source: Erik Anderson/Flickr)

The good news is that social move­ments are not tak­ing this sit­ting down. They are becom­ing very active, vocal, bold and organ­ised about this. In 2013, Colom­bians from all walks of life were shak­en up when they saw first­hand how US and Euro­pean FTAs could result in their own gov­ern­ment vio­lent­ly destroy­ing tonnes of seeds saved by farm­ers who did not know what the new rules were. The out­rage, break­ing out in the midst of a mas­sive nation­al agrar­i­an strike, was so strong that the gov­ern­ment actu­al­ly agreed to sus­pend the law tem­porar­i­ly and re-exam­ine the issue direct­ly with farm­ers’ representatives.8

In 2014, it was Guatemala’s turn to be rocked when the gen­er­al pub­lic realised that the gov­ern­ment was push­ing through the adop­tion of UPOV 1991 with­out prop­er debate because of trade deals like CAFTA.9People were furi­ous that indige­nous com­mu­ni­ties were not con­sult­ed as is required, espe­cial­ly when the pur­pose of the law – ulti­mate­ly – is to replace indige­nous seeds with com­mer­cial seeds from for­eign com­pa­nies like Mon­san­to or Syn­gen­ta. After months of pres­sure, the gov­ern­ment backed down and repealed the law.10 But – as in Colom­bia – this retreat is only tem­po­rary while oth­er mea­sures will be looked at. In yet oth­er parts of Latin Amer­i­ca, like in Chile and Argenti­na, new laws to imple­ment UPOV 91, often dubbed “Mon­san­to Laws”, are also being intense­ly and suc­cess­ful­ly resist­ed by social move­ments.

In Africa too, waves of pub­lic protest are ris­ing against the plant vari­ety pro­tec­tion regimes which coun­tries are now going into. In Ghana, a vibrant cam­paign is under way to stop the coun­try from adopt­ing UPOV 1991 legislation.11

September 2013 protest against FTAs: in Thailand, popular movements are resisting the possibility that talks over a free trade agreement between Thailand and the EU will result in UPOV being imposed on the nation’s farmers. (Photo: FTA Watch)

Sep­tem­ber 2013 protest against FTAs: in Thai­land, pop­u­lar move­ments are resist­ing the pos­si­bil­i­ty that talks over a free trade agree­ment between Thai­land and the EU will result in UPOV being imposed on the nation’s farm­ers. (Pho­to: FTA Watch)

Else­where, civ­il soci­ety net­works like the broad based Alliance for Food Sov­er­eign­ty in Africa are fil­ing appeals to stop ARIPO from adopt­ing UPOV-based leg­is­la­tion and join­ing the union.12

Cor­po­rate inter­est groups have pushed too far try­ing to pri­va­tise what peo­ple con­sid­er a com­mons. This is not lim­it­ed to seeds. The same process has been going on with land, min­er­als, hydro­car­bons, water, knowl­edge, the inter­net, even impor­tant microor­gan­isms, like avian flu a few years ago or the Ebo­la virus today. Peo­ple are fight­ing back to stop these things falling under the exclu­sive con­trol of a few cor­po­ra­tions or defence min­istries. A good way to take part in this bat­tle is to join the cam­paigns to stop impor­tant new trade deals like TTIP, CETA, TPP and the EPAs – and to get old ones like the US and Euro­pean deals with Mex­i­co, Cen­tral Amer­i­ca, Colom­bia or Chile rescind­ed. Trade deals are where a lot of these rules do get writ­ten and that is where they should be erased.

For a clos­er look at the sta­tus of trade agree­ments that impose seed pri­vati­sa­tion, down­load GRAIN’s Novem­ber 2014 dataset, “Trade agree­ments pri­vatis­ing bio­di­ver­si­tyTrade agree­ments pri­vatis­ing bio­di­ver­si­ty (plain text).

Going fur­ther

- GRAIN, “Seed laws in Latin Amer­i­ca: the offen­sive con­tin­ues, so does pop­u­lar resis­tance”, Decem­ber 2013. (EN, ES, FR)

- Bio­di­ver­si­dad, “Leyes de semi­l­las y otros pesares”, Sep­tem­ber 2014. (ES only)

- Dai­ly updates on trade deals at or @bilaterals_org or (EN, ES, FR)


1 “Intel­lec­tu­al prop­er­ty” is a gov­ern­ment enforced monop­oly right. It serves to ensure that peo­ple pay for the right to use some­thing for a cer­tain peri­od of time, so that who­ev­er invent­ed it can recoup his or her invest­ment. “Plant vari­ety” means seeds which will grow into a spe­cif­ic kind of plant with spe­cif­ic char­ac­ter­is­tics.
2 Under the UPOV sys­tem, farm­ers can some­times save seeds from pro­tect­ed vari­eties to use them again. It depends on which ver­sion of the UPOV Con­ven­tion a coun­try signs and whether the gov­ern­ment exer­cis­es this option. Some­times it is restrict­ed to farm­ers’ replant­i­ng the seeds on their own farm or to only cer­tain crops or to pay­ment of a licence. Under the patent sys­tem, it is sim­ply ille­gal to use patent­ed seeds with­out pay­ing for them – even if a bird drops them onto your field!
EFTA is com­posed of Ice­land, Licht­en­stein, Nor­way and Switzer­land.
ETC Group, “Who owns nature?”, 2008.
5 Ecuador is also now nego­ti­at­ing with the EU, based on the text signed with Colom­bia and Peru.
6 For exam­ple, the Organ­i­sa­tion of African Uni­ty draft­ed its own mod­el law on plant vari­ety pro­tec­tion based on com­mu­ni­ty rights.
7 See Nation­al Farm­ers’ Union, “CETA + Bill C-18 = too much pow­er for seed com­pa­nies”, June 2014.
GRAIN, “Colom­bia farm­ers’ upris­ing puts the spot­light on seeds”, Sep­tem­ber 2013.
9 Per­haps not very vis­i­ble to the pub­lic eye was the 2013 EFTA-Cen­tral Amer­i­ca FTA, which makes the same demands as CAFTA.
10 See EFE, “Guatemala repeals plant breed­er rights law”, 5 Sep­tem­ber 2014.
11 See the web­sites of Food Sov­er­eign­ty Ghana and Panafrican­ist Inter­na­tion­al.
12 Alliance for Food Sov­er­eign­ty in Africa, “AFSA appeals to ARIPO, AU and UNECA for pro­tec­tion of farm­ers’ rights & right to food”, 2 July 2014.