NO.6, YEAR 2004 POLICY BRIEF Traditional Farming Practices and Farmers' Rights in the HKH Region

Agriculture without independent and self- ○○○○○○○○○○○○○○○○○○○○○○○○ forest, 11 percent is covered under protected areas and responsible indigenous farmers will end up in severe five percent is used for agriculture. Over 150 million ecological disaster people representing scores of ethnic groups live within - Dr Toni Hagen this fragile and marginal landscape and another half a BACKGROUND billion inhabitants depend on its resources, downstream The Hindu-Kush Himalayan (HKH) region is the larg- in the hinterlands. The region is primarily characterised est and most diverse mountain setting in the world, by richness in biodiversity and associated indigenous comprising 3500 km long complex landscape of moun- knowledge, antiquity of agriculture, niche opportuni- tains, plateaus, river gorges, and plains. The region in- ties and human adapted to harsh environments. cludes Afghanistan, Northern Pakistan, China's Xizang The economy of the region's hills and mountains is Autonomous Region, Western Sichuan, North West primarily agriculture-based. Farming systems in the Yunnan and Chengdu, the northern hilly region of HKH region present a mosaic of distinct agriculture Burma, Chittagong Hill Tracts of Bangladesh, Indian and livestock production systems, representing various Himalayas, Bhutan and Nepal. This vast tract of land- agro-ecoregions. Pastoralism and agro-pastoralism mass includes such ranges and chains known as the ○○○○○○○○ cover a vast part of the HKH in the highland areas, Himalayas, the Karakoram, the Hindu-Kush, the notably in Tibet (China) and some northern areas of Hengduan Mountains, and the Tibetan Plateau. Pakistan, India and Nepal. In the sedentary farming The mountains in the region are young and fragile and dominated by food grain and mixed crop farming sys- in terms of land use 39 percent is pasture, 21 percent is tems, livestock play crucial role providing draft power, 1 manure, meat and milk. Shifting cultivation is prevalent ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ farming systems, thereby directly affecting their rights in the eastern Himalayan region—North-east India, and and livelihood options. In addition, in recent years, due bordering areas between China and Myanmar. Here live- to globalisation and the World Trade Organisation stock farming is a part of the livelihood of the shifting (WTO) system, new challenges are surfacing. Different cultivators. WTO agreements deprive farmers from enjoying their right to exercise traditional farming practices. Among Agriculture that includes production of cereals, grain the WTO implications on traditional farming practices legumes, oilseeds, fruits, vegetables and spices; manage- and farmers' rights, the implications of intellectual prop-

POLICY BRIEF ment of cattle, poultry, goat, sheep and pig; and pro- erty right (IPR) rules are most profound. This is also because WTO rules are binding. Countries, which are members or are seeking membership, are required to modify their national agricultural plans, poli- cies and acts in tune with WTO rules, including IPR rules. The challenge lies in interfacing national interests while complying with WTO commitments. This is a very complex task for the HKH countries for two main reasons. The first reason relates to national strategy. Countries in the region have not developed adequate and proper policy instruments and legal mechanisms that respect and reward traditional farming practices duction of agro-forestry along with mixed cropping, and farmers' rights. The second reason relates to inter- mixed farming system and shifting cultivation signifi- national rules. Governments in the region are still not cantly contributes to food security in the mountain well equipped to understand WTO and its IPR rules, economy. Because of the varied ecosystem, off-season let alone capitalising them in the interest of farmers. vegetable production, quality seed production and or- At the international level, there have been some praise- chard farming have also tremendous potential. worthy initiatives in relation to the establishment and Notwithstanding these potentials, a majority of people enforcement of the international rules that call for the are deprived of basic necessities of the present day life. protection and promotion of traditional farming prac- Widespread poverty and food insecurity are their ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ tices and farmers' rights. Among them, most significant major concerns. are the International Undertaking on Plant Genetic Re- sources (IUPGR), 1989, the Convention on Biological Despite movements initiated to apply modern agricul- Diversity (CBD), 1992 and the International Treaty on tural practices and systems in recent years, traditional Plant Genetic Resources for Food and Agriculture farming practices still have intrinsic value in the agricul- (ITPGRFA), 2001 (discussed below). tural system of the region. They have been significantly contributing in maintaining a balance in the nature by INDIGENOUS MANAGEMENT OF promoting interdependence of agro-horticultural crops, forestry, animal husbandry and medicinal and aromatic AGRICULTURE AND NATURAL RESOURCES plants in the mountains. Farming communities of the Indigenous knowledge and traditional practices in the HKH region attach great value to the forest ecosystem agricultural systems have been in existence in the HKH as well as to the integration of livestock into the moun- region for millennia. Farmers with their practical knowl- tain farming system. The communities in the region have edge have developed several production systems suited been practicing traditional farming systems for harness- to marginal and fragile mountain environments. The ing ecological potential of land and conserving natural eco-friendly agriculture and sustainable soil management resources for millennia. These traditional practices not are practiced even in such harsh environments through only contribute to the development and advancement terracing, composting, mulching, mixed copping, mixed of farming systems but also help them meet their spe- farming, etc. cific needs of life. Traditional knowledge about plant species in the local However, much to the dismay of these mountain farm- communities has opened up the whole gamut of ethno- ers, the protection and promotion of such practices are botanical studies. An array of edible wild plant species not a priority for their governments. In the national plans from the forest is consumed as the sources of starch, and policies, they are, more often than not, ignored. protein, vitamins and minerals in rural life. Medicinal Countries in the region have not been able to devise and aromatic plants are collected from forest and used appropriate policy instruments and legal mechanisms for treating human and animal diseases and nutritional that protect and promote traditional farming practices. disorder. Rangelands and pastures are being managed Such a policy and legal constraint has severely limited for raising livestock in the high mountains. Farmers have farmers' freedom and their ability to practice traditional in depth knowledge about which plants are useful for 2 what purposes, when they can be used, where they can ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ production potential to contribute globally in sustain- be grown and from where they can be obtained. able utilisation of diverse mountain ecosystems. Farm- These farming communities have also good understand- ing communities are aware of the variability in micro ing of diverse agro-ecosystems in a watershed since niches and possess knowledge on the management and parcels under their possessions are scattered. Normally, use of the niche specific diversity. watershed contains large variations in terms of soil tex- STATEMENT OF THE PROBLEM ture, fertility pattern, moisture regime, drainage, tem- perature, precipitation and vegetation. Management of In the present era, the tendency to ignore/underesti- POLICY BRIEF the variability, one of the important tasks in the agricul- mate traditional materials, methods and knowledge by the HKH governments and research and development tural system, is accomplished based on the experience agencies has severely affected the mountain economy passed from generation to generation and innovativeness in general and farmers’ livelihood in particular. The of the farming communities. They select crops (species gradual disappearance of local knowledge and tradi- diversity) and varieties (genetic diversity) to plant and tional farming practices is a common phenomenon. select seed for on-farm planting (ecosystem diversity). There is no respect and reward for farmers and their Use of compost and diverse cropping patterns are age- rights are ignored. Several credit schemes and market old practices in soil fertility management. Recently, com- forces act against local genetic resources and traditional binations of compost and farming practices. The genetic chemical fertilisers are also be- resources are being eroded par- ing used to optimise produc- ticularly in high production do- tivity levels. Farming commu- ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ main of fertile valleys. Highly toxic and health hazardous nities have developed general chemicals are being used to con- perception about the combina- trol insect pests. tion that the compost enhances the efficiency of the inorganic Governments have not initiated fertiliser by reducing the leach- measures to involve knowledge- ing and increasing the availabil- rich farmers in the decision mak- ing process. Farmers are still not ity of the nutrients, hardening seen as partners. In research and of soil and preventing the development, they are not in- fertiliser from making the soil volved. Countries have not de- acidic. Scientific studies also in- veloped adequate provisions of dicate the similar phenomenon officially registering farmers’ va- and recommend the use of rieties/landraces/traditional combination of compost and knowledge. This has not only re- inorganic fertilisers for sustainable soil management. stricted farmers/communities from ownership over re- sources and knowledge but has also encouraged Similarly, understanding of seasonal pest occurrence, unauthorised piracy. Governments have not developed distribution and its management exists in the rural com- a proper mechanism to generate a fund for traditional munities. The contributions of traditional knowledge farm-based initiatives. to the modern agriculture in food production, crop yields, pest management etc. are quite significant. Moreover, as mentioned above, the globalisation pro- cess and the WTO system have further exacerbated these The other important aspect of traditional farming prac- problems. In the name of globalisation and the WTO, tices includes the issue of seed management. There is the benefits of farmers’ knowledge and practices are no denying that seed is the most essential agricultural being reaped by other communities outside the local input in the traditional farming system. Many studies on domain. Multinational corporations (MNCs) engaged seed supply system reveal that farmers extensively use in plant breeding, pharmaceutical and biotechnology farm-saved seed. However, their dependence on for- have been making every effort to exploit the traditional mal seed supply system is extremely low. Rather farmer- knowledge of the local farming communities. But the to-farmer seed dissemination culture is the most com- poor farming communities are still far from enjoying mon feature. They exchange, buy, borrow and sell seed the fruits of their age-old knowledge and practices. with their neighbours and also offer them as gifts to There is a significant cultural variation between tradi- relatives. tional communities and so-called modern communi- The hills and mountains have comparative advantage ties in the way they view this subject matter. While tradi- because of niche opportunities for production of low tional knowledge in traditional communities is mostly volume and high value crops. They have a tremendous in public domain, i.e., freely accessible, modern com- 3 POLICY BRIEF

4 munity, which has not made any significant contribu- ○○○○○○○○○○○○○○ ments and rules that relate to traditional farming prac- tion for the preservation of such knowledge, has been tices and farmers' rights. using them for own benefits and patent them for ob- The IUPGR adopted in 1989 by United Nations Food taining proprietary rights, thereby perpetuating the no- and Agriculture Organisation (FAO) Intergovernmen- tion of private property over these knowledge systems. tal Commission on Plant Genetic Resource, Resolution Given the increasing trend of globalisation and its in- 5/89 has defined farmers' rights as the “rights arising trusive nature, if governments in the re- from the past, present and future contri- butions of farmers in conserving, im-

gion do not devise mechanisms to safe- POLICY BRIEF guard traditional farming practices and ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ proving and making available plant ge- farmers’ rights well in time, the moun- netic resources particularly those in the tain economy will suffer much heavier centers of origin/diversity. These rights burden of adjustment in days to come. are vested in the international community, as trustees for present and future genera- INTERNATIONAL AGREEMENTS tion of farmers for the purpose of en- SUPPORTING TRADITIONAL suring full benefits to farmers, and sup- FARMING PRACTICES AND porting the continuation of their contri- butions as well as the attainment of overall FARMERS' RIGHTS purposes of the International Undertak- In recent years, global communities from ing.” the developed as well as developing world have recognised indigenous The CBD, 1992 is the international agree- knowledge and traditional farming prac- ment that for the first time incorporated tices as a cornerstone of research and the principles of ethics and equity in the development in agriculture. In this regard, in order to conservation and utilisation of global biodiversity. The be able to develop appropriate policy and legal instru- vital roles of indigenous peoples/local communities are ments, it is important for the governments of the HKH addressed in the Article 8 (j) of the CBD as follows: region to properly understand the international agree- “Subject to its national legislation, respect, preserve, and maintain knowledge, innovations and practices of in- digenous and local communities embodying traditional Box: 1 life style relevant for the conservation and sustainable use of biological diversity and promote their wider UPOV AND FARMERS' RIGHTS application with the approval and involvement of the The developing countries have criticised the UPOV holders of such knowledge, innovations and practices model on several grounds, not least because becom- and encourage equitable sharing of benefits arising from ing a member of UPOV or enacting the legislation in the utilisation of such knowledge, innovations and prac- tune with this model is not a requirement of TRIPS. tices”. Farmers in the developing countries practice subsis- The ITPGRFA, 2001 while recognising farmers’ rights tence farming and have been saving and reusing seeds also underscores the need to protect traditional knowl- for time immemorial. They have been exchanging their edge. Article 9 of the ITPGRFA mentions that the con- seeds with their neighbours. Some farmers, who do tracting parties agree that the responsibility for realising not have enough land to engage in full-fledged agri- farmers' rights, as they relate to plant genetic resources cultural productions, are engaged in production of for food and agriculture (PGRFA), rests with national seeds, though in a very limited quantity, and do sell governments. In accordance with their needs and pri- them at the local market to eke out their living. Thus, orities, each contracting party should, as appropriate, saving, exchanging, reusing and selling seeds are the and subject to its national legislation, take measures to means of their livelihood. The UPOV Convention, how- protect and promote farmers’ rights, including: ever, restricts the ability of farmers to excercise these • livelihood options. Protection of traditional knowledge relevant to PGRFA; UPOV's Article 15.2 allows farmers to reuse protected • material only if the ‘legitimate interests of the breed- The right to equally participate in sharing benefits ers’ are taken care of - the legitimate interests being arising from the utilisation of PGRFA; and nothing but the royalty that the breeders should be • The right to participate in making decisions, at the paid. The FAO views it as 'downgrading of the Farmers’ national level, on matters related to the conserva- Privilege'. tion and sustainable use of PGRFA. Adapted from: Adhikari, Ratnakar and Kamalesh Adhikari The same Article also mentions that nothing in this Ar- (2003), UPOV: Faulty Agreement and Coercive Practices, ticle shall be interpreted to limit any rights that farmers Policy Brief, SAWTEE, Kathmandu. have to save, use, exchange and sell farm-saved seed/ 45 POLICY BRIEF

6 propagating material, subject to national law and as The Act states, "farmers are entitled to save, use, re- appropriate. sow, exchange, share or sell his/her farm produce in- cluding seed of a variety protected in the same manner INTERNATIONAL AGREEMENTS AGAINST as he/she was entitled before the coming into force of TRADITIONAL FARMING PRACTICES AND this legislation". The Act also seeks to reward the farm- FARMERS' RIGHTS ers who are engaged in the conservation and preserva- tion of genetic resources of landraces and wild rela- Within the WTO system, the Agreement on Trade Re- tives of economic plants and their improvement through lated Aspects of Intellectual Property Rights (TRIPS) selection and preservation. POLICY BRIEF has profound implications for the traditional farming practices and farmers' rights. Article 27:3 (b) of the ISSUES FOR CONSIDERATION Agreement is the most controversial provision in the entire agreement, which states: International treaties and agreements are as diverse as ecosystems of the HKH region. The people of the "Members may exclude from patentability plants and mountain region understand the use of diverse ecosys- animal other than microorganisms, and essentially bio- tem around them, but cannot follow the language and logical processes for the production of plant and ani- understand the implications of international treaties and mal other than non-biological and microbiological pro- agreements on their livelihoods. The gaps are obviously cesses. However, Members shall provide for the pro- tection of plant varieties either by patents or by effec- Box: 2 tive sui generis system or by any combination thereof…" The definitional construct of this Article precludes rec- POLICY OPTIONS FOR THE HKH REGION ognition of technologies, innovations and practices of Given the present and future threats to traditional local farming communities and their collective owner- farming practices and farmers' rights, the HKH govern- ship for common social good. The obvious implica- ments must devise policy and legal instruments that tion is that the traditional knowledge and creativity of recognise, respect and reward the following farmers' local farming communities cannot be protected and rights: rewarded. This provision provides legal cover to the • The right of farmers to protect their traditional corporations to get involved in theft of traditional knowledge associated with plant genetic resources knowledge and bio-piracy. from being misappropriated. Similarly, since there is no interpretation of "effective • The rights of farmers over plant varieties and local sui generis system", the HKH countries find it difficult to knowledge over and above the corporate breed- enact an effective sui generis system for the protection of ers’ rights. new varieties of plants. Precisely because of this ambi- • The traditional rights of farmers to save, use, sow, guity, the developed countries have been exerting pres- re-sow, exchange, sell and improve farm-saved seed sures on the developing countries to enact their legisla- of all plant varieties. tion in tune with International Union for the Protection • The right of farmers to receive equitable benefit of New Varieties of Plants (UPOV), which they refer sharing, both monetary and non-monetary, for the as the only effective sui generis system. The UPOV Con- use of plant genetic resources created and con- vention, however, does not respect or reward farmers' served by them for the development of new com- rights and their traditional practices. Rather it promotes mercial varieties, with due regards being given to the interests of the MNCs and breeders. The develop- the economic valuation of the plant and seed vari- ing countries have criticised UPOV on several grounds eties developed by them during the process of evo- (See Box: 1). lution since centuries. To counter the clout of UPOV, India has taken a bold • The right of farmers to be informed of the market initiative by enacting the Protection of Plant Varieties opportunities so that they could better assess the and Farmers' Rights (PPVFR) Act in 2001. The Act has marketing options for the outputs they derive from balanced the rights of both the breeders and farmers. the use of traditional knowledge. In line with Article 27.3 (b) of TRIPS, the Act aims to • The right of farmers to get protected against bio- establish “an effective system for the protection of plant piracy and theft of their traditional knowledge. varieties, the rights of farmers and plant breeders to • The right of farmers to be aware of national and encourage the development of new varieties of plants”. international agreements and legal systems affect- Within the provision of the Act, farmers' rights are pro- ing their livelihoods directly or indirectly. tected by safeguarding the interest of farmers and other Adapted from: The resultion adopted at the Regional village and local communities engaged in plant breed- Seminar on Evolving Sui Generis Options for the Hindu- ing in two ways: (i) by protecting their own on-farm Kush Himalayas, Organised by SAWTEE and Interna- activities; and (ii) providing incentives in the form of tional Centre for Integrated Mountain Development rewards for their contribution to farming. (ICIMOD) on 24-26 March 2003, Kathmandu. 57 because of illiteracy and ignorance. The farming com- POLICY RECOMMENDATIONS munities are cognisant of their capacity in producing Traditional farming practices are the repository of in- food for humankind. The reservoir of ethno-engineering digenous knowledge. Relevant traditional farming prac- knowledge for the management of soil erosions through tices and knowledge must be utilised in research and terracing on sloping areas has provided a greater base development endeavours. Partnership with farmers on for sustainable agriculture to the global community. The an equal footing in the management of agriculture and indigenous knowledge they possess is freely available related natural resources has to be considered. There- to all. Their intellectual property is meant for service, fore, the following policy recommendations are worth POLICY BRIEF not for business. Several scientific advances have been considering: • An institutional mechanism should be put in place that recognises and rewards farmers for their con- tributions in the area of agricultural development and environmental conservation that they have made through their indigenous farming knowledge and practices. • Provisions of officially registering farmers’ variet- ies/landraces/traditional knowledge would help es- tablishing the ownership of communities/farmers over resources and knowledge. It would discour- made based on traditional knowledge of the farming age unauthorised piracy. communities. • Farmers should be allowed to save, reuse, exchange However, of late, the scenario is undergoing a meta- and sell seeds of protected plant varieties. Resource morphosis. Resource poor and illiterate farmers are be- poor farmers (small scale farmers) must be facili- ing asked to compete globally and follow international tated in terms of access to technology and decision rules and regulations. There is a dire need to boost public making. There should be a mechanism to generate a and private partnership for increased investment in ag- fund for traditional farm-based initiatives. riculture research and development but not at the cost • The countries of the HKH region must be allowed of poverty-stricken farming communities of the moun- to devise their own sui generis system for plant vari- tain region. It is time that the global community put ety protection. serious thoughts on what can be done to provide small • scale farmers and farming communities their due share Wider consultations should take place at all levels, of benefits. involving the farmers as well as local and indigenous communities in the process of designing legislation The governments of the HKH region should under- aimed at protecting farmers’ rights and their tradi- stand that unless they do devise policy and legal instru- tional knowledge. UPOV is not the only option. Ref- ments that protect traditional farming practices and erences of other international agreements and trea- farmers' rights, the farmers in the mountains will re- ties, and other countries' legislation such as India main vulnerable, poor and marginalised (See Box: 2). should be taken.

Launched in December 1994 at Nepal by a consortium of South Asian non-governmental organisations, SAWTEE is a recognised, registered, non-profit and non-governmental organisation. Its goal is to enable South Asian communities to benefit from and minimise the harms of changing regional and global economic paradigms. It operates as a regional network through its secretariat in Kathmandu and 11 member institutions from five South Asian countries, namely Bangladesh, India, Nepal, Pakistan and Sri Lanka.

Post Box No: 19366, 254 Lamtangeen Marg, Baluwatar, Kathmandu, Nepal, Tel: 977-1-4415824/4444438, Fax: 977-1-4444570, E-mail: [email protected], Web: www.sawtee.org

Published with the support from Ford Foundation and ActionAid, this Policy Brief is a part of the three-year Regional Programme on Securing Farmers’ Rights to Livelihood in the Hindu-Kush Himalaya Region implemented by SAWTEE and ICIMOD. We are indebted to Mr Anupam Bhatia, ICIMOD, Kathmandu, Mr Bipul Chatterjee, CUTS, Jaipur and Ms Avanthi Weerasinghe, LST, Colombo for their invaluable comments and suggestions.

© 2004, SAWTEE. This Policy Brief has been researched and written by Dr Madhusudan Upadhyaya, Nepal Agriculture Research Council (NARC), Lalitpur, Nepal for SAWTEE, Design: Indra Shrestha, Printed at Modern Printing Press, Kathmandu. 8