1 THE GLOBAL CROP COMMONS AND ACCESS AND BENEFIT-SHARING LAWS Examining the limits of international policy support for the collective pooling and management of plant genetic resources Michael Halewood, Isabel López Noriega and Selim Louafi This book addresses how the collective pooling and management of plant genetic resources for food and agriculture (PGRFA) can be supported through international law. The collective pooling of plant genetic resources is not new – it has always been a vital form of support for agricultural development, crop improvement and agri- cultural research. What is new is that such pooling has become the object of regula- tion, including international laws controlling access to genetic resources and the sharing of benefits arising from their use. One of the objectives of this book is to evaluate the current state of access and benefit-sharing laws and how they influence internationally coordinated efforts to pool and manage genetic resources. Since the most important recent development in the field has been the creation of the multilateral system of access and benefit sharing (multilateral system) under the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), many of the chapters in this book will focus on the architecture and functioning of this system.1 Another objective is to understand some of the tensions that are presently threatening to frustrate the potential of access and benefit-sharing laws – again, with a particular focus on the Treaty’s multilateral system – to support the collective pooling and management of these resources. A third objective is to identify opportunities to address these tensions in proactive and constructive ways. In this introduction, we provide a quick overview of plant genetic resource-pool- ing practices at farmer, community, research network and international levels. We also provide a snapshot of how access and benefit-sharing laws are (and are not) supporting those practices. We present an analysis of two issues related to the design of the multilateral system that are giving rise to tensions that are threatening to undermine the system’s potential to support the collective pooling and management of PGRFA. We conclude with an overview of the chapters that follow. 2 Michael Halewood, Isabel López Noriega and Selim Louafi Collective pooling of PGRFA Farmers have been engaged in collective systems of conservation and innovation – openly sharing planting materials and conserving them through use – since the earliest crop domestications. Relatively open flows of plant germplasm attended the spread of agriculture and have subsequently followed (or been driven by) imperialism, coloni- zation, emigration, trade, development assistance and climate change. As crops have moved around the world, and as the scope of agricultural innovation and production systems have shifted and expanded, so too has the scope and coverage of pools of shared plant genetic resources that support those systems. Farmers’ ancestral practices in germplasm conservation and innovation can still be found in small farming systems and in remote areas. These practices rely, to a great extent, on the exchange of planting materials between farmers. Although farmers prefer to select and save seed from their own harvest, seed and harvest loss, experimentation and the establishment of new households make them acquire seed from other farmers or from the market (Almekinders et al., 1994; Badstue et al., 2006; Hodgkin et al., 2007; McGuire, 2007). Farmer-to-farmer seed exchange often forms dynamic networks where, by virtue of social relations, interdependence and reciprocity rules, farmers have access to other farmers’ seed stock. In this way, a decentralized and changing pool of germplasm is created. A number of studies show that, in some seed networks, certain farmers play a predominant role in germplasm conservation, generation and supply. Analysis of exchange patterns in Yucatan (Mexico), Rajasthan (India) and East Java (Indonesia) show that some farmers or even villages are specialized in seed production and supply for certain crops. They are known for reliably and regularly producing and selling seed (Hodgkin et al., 2007; Linnemann and Siemonsma, 1987; Weltzein and Vom Brocke, 2001). In Kaski and Bara, Nepal, community members consider some farmers to be ‘nodal farmers’ since they maintain a relatively larger amount of crop diversity than other members of the community. These farmers look for new cultivars, con- serve them and experiment with them. They thereby play an important role in the flow of genetic material as they give seed to other farmers (Subedi et al., 2003). In addition to informal exchange networks, farmers generate and participate in organized germplasm exchange systems, such as seed fairs and community seed banks. Seed fairs have been in existence for centuries in some parts of the world. In the Andes, for example, people from different communities often congregate in religious festivities, normally at the end of the harvest, and sell, buy and exchange plant genetic resources and related knowledge (Tapia and Rosa, 1993). Typically, in a response to crisis situations such as war, long droughts and dramatic loss of local diversity, community seed banks have represented a much more explicit form of common pooling of plant genetic resources at the local level. Local germplasm and associated knowledge are collected from within the community, markets and neighbouring villages, stored in seed banks, multiplied, and then distributed to farmers whenever they need it (Shrestha et al., 2008). Often, these efforts are supported by international and national development agencies. The global crop commons and access and benefit-sharing laws 3 Germplasm exchange patterns expanded over larger scales as cultivation spread to new areas (Kloppenburg and Kleinman, 1988). The early development of agriculture has involved slow extensions of domestication processes and the movements of crops and germplasm beyond their natural area. These movements experienced a dramatic increase with the first contacts between Europe and the Americas. A vast array of plants was introduced from the Americas to Europe and vice versa. This so-called ‘Columbian exchange’ (Crosby, 1972) also witnessed the establishment of botanic gardens to receive, nurture, classify and transship exotic plants (Brockway, 1988). The subsequent mercantilist expansion of plantation systems oriented toward export con- tributed to further movements of PGRFA across continents, mainly through the initiative of European governments and trading companies. The advent of scientific breeding after the rediscovery of Mendel’s laws in the early twentieth century (first developed in the 1880s) helped to guide the search for new material on the basis of known genetic characteristics (Byerlee and Dubin, 2010; Pistorius, 1997). Breeders’ collections were first conscious efforts to pool genetic resources from all around the world for improvement purposes (Garrison Wilkes, 1988). Public sector breeders’ practices of relatively open systems of germplasm exchange through informal networks has since become widespread and well documented (Byerlee and Dubin, 2010; SGRP, 2011). The famous Russian scientist Nicolay Vavilov (2007), during the same period, identified the major centres of crop diversity and first collected an enormous number of plants not for breeding purposes but, rather, for genetic study. Pooling efforts very much remained of an ad hoc nature and were linked to short-term use (Frankel, 1988). The development and maintenance of these shared pools was often more a by-product of the way in which the genetic resources were used rather than an end in itself. Often the resources were de facto pooled as a function of the way they were used and openly available between farmers, breeders and research partners in both the formal and informal research and development sectors. When the pooled resources no longer served a purpose, the members of the pool would dissipate and the resource pool would fall into disuse. Since crop diversity is a function of the interaction of environment, plant reproduction systems and human intervention, this diversity can disappear in the absence of the latter. After the Second World War, as a result of progress in genetics, the emergence of disease resistances in improved varieties and increased contact between scientists world- wide, there was increased interest and demand for a more systematic approach to exchanging PGRFA (Kloppenburg, 1988a). The Food and Agriculture Organization (FAO) decided in 1948 to establish a world clearing house to increase cooperation in plant exploration and the recording of living collections (Whyte and Julèn, 1963). This clearing house consisted in building a catalogue of available material around the world to foster its utilization in international breeding programmes. However, the FAO efforts were not restricted to information pooling – it also oversaw the physical delivering of samples, especially in relation to breeders in developing countries. By the end of the 1950s, the FAO had distributed approximately 20,000 seed envelopes per year (Pistorius, 1997). However, until the late 1960s, the main part of 4 Michael Halewood, Isabel López Noriega and Selim Louafi the worldwide exchanges of genetic material was taking place within a network of so-called ‘plant introduction stations’, which were mainly centred in Western Europe, the United States, Australia, New Zealand and the Soviet Union. These stations