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1
Cast into the Stones of International Law: A Critique of the UPOV Standards in the Light of Scientific
Insights and Policy Shifts Towards Agroecology and Natural Farming
Mrinalini Kochupillai*, a, b, # & Julia Köningerc, #
Abstract
This contribution critically considers how underlying assumptions in international IP treaties reflect, as
well as impact upon, realities. International IP treaties, and more broadly international agreements which
set minimum standards and so harmonize and co-ordinate norm-setting among and within states
frequently codify underlying assumptions about the social, economic, cultural or environmental utility of
the standards they aim to globalize. While these assumptions may be correct in particular territorial,
historic and socio-economic context, once they are engrained in international standards that are cast into
the stones of international treaty law, they become global norms that are at best difficult, and at times even
factually impossible to implement, amend or adapt. In worse case scenarios, the habitual implementation
of such laws can lead to significant socio-economic, cultural, as well as environmental dystrophy.
Whenever an implementation of such standards does not materialize the underlying assumptions, the
global norms ultimately become redundant, more broadly challenging their legitimacy. Using the
international protection of plant varieties as an example, this contribution critically reviews the
assumptions built into the UPOV treaty regime, and whether they are supported by modern science and
empirical research on biodiversity, food security, nutrition and seed sovereignty. Contrary to expectations,
this redundancy may extend beyond the context of biodiversity rich countries of the Global South, into
countries of the Global North, that are also (and perhaps more severely) struggling with biodiversity losses
and climate change.
I Introduction
An ancient Indian proverb says:
It is because lions are lazy, snakes are scared, and intellectuals have
difference of opinions, that there is happiness on the planet.
This proverb highlights the importance of
diversity1 - in opinions, approaches, interpretations and perspectives – whether it be in economic, social,
political, regulatory or scientific discourse. Diversity is not only critical for the growth and development
of any democracy, but also for the evolution of social, economic, legal and scientific thought. Needless to
say, diversity is also critically important for innovation.
The central relevance of diversity for innovation is particularly obvious in the agricultural seeds sector.2
Yet, international intellectual property (IP) regulations in this sector have long assumed that “uniformity”
and “homogeneity”3, rather than “diversity” and “heterogeneity”, are of central relevance for the
protection and incentivization of innovation. With this assumption, several other assumptions have
* Corresponding author. Email: m.kochupillai@tum.de
a Guest Professor and Core Scientist, Department of Data Science in Earth Observations, Technical University of Munich
b Faculty, Munich Intellectual Property Law Center, Max Planck Institute for Innovation & Competition, Germany
c Doctoral Candidate, University of Vigo
1 Sanskrit proverb quoted and explained by R. Shankar, "Learning From Mistakes," 2014,
https://www.artofliving.org/wisdom/learning-from-mistakes (accessed 27 May 2021).
2 Mrinalini Kochupillai,
Promoting sustainable innovations in plant varieties
, vol. 5 (Springer, 2016) p. 11-14; K Rerkasem and
Michael Pinedo-Vasquez, "Diversity and innovation in smallholder systems in response to environmental and economic changes,"
Managing Biodiversity in Agricultural Ecosystems. Columbia University Press, NY
(2007): 362; Eric JB von Wettberg et al.,
"Ecology and genomics of an important crop wild relative as a prelude to agricultural innovation,"
Nature communications
9, no.
1 (2018).
3 At the commercial end of things, replicability and scalability are important additional factors that determine the commercial
success of a variety. Scalability, that is, without loss of uniform and distinctive features by which one can tell a seed and its produce
apart of those of others.
2
followed, particularly the assumption that only plant breeders in the formal sector4 can innovate and create
new plant varieties capable, inter alia, of ensuring food security, not farmers in the informal sector.5
Yet, this assumption, and the focus on “uniform” and “stable” seeds has led to an alarming loss in crop
biodiversity (and associated diversity in human nutrition) within the last century: According to estimates
from the United Nations Food and Agriculture Organization (UN FAO), more than 75% of crop genetic
diversity has been lost since the widespread adoption of conventional agriculture based on a very few crop
varieties.6 Today, 75% of the world’s food derives from only 12 plants, world nutrition is primarily based
on 10 crops, of which three, namely, rice, maize and wheat, contribute nearly 60% of the calories and
proteins obtained by humans from plants.7
Further, international IP regulations, particularly the UPOV Plant Breeders’ Rights (PBR) regime, also
assume that managing the genetic make-up of seeds (i.e., ensuring genetic purity, uniformity and stability)
and protecting resulting varieties with Plant Breeders’ Rights (PBRs), patents, or a combination of the
two, is adequate to optimally protect, and thereby incentivize, seed innovations; notably, seed innovations
by the formal sector. What is emphasized by the UPOV/PBRs regime, therefore, is the ‘internal
environment’ of a seed. In practical reality, however, to manifest the goodness (or the best) of the uniform
and stable internal seed environment, the external environment has to be carefully managed and
maintained by those buying and using the seeds. If this is not done, the internal genetic environment of
the seed fails to deliver on its promised goodness (e.g. in the form of high yields). In other words, uniform,
stable seeds only perform
ceteris paribus
.
UPOV/PBRs, therefore, also presumes that it is possible, in all or most circumstances, to meticulously
manage the external environment a seed is faced with (e.g. in terms of optimal irrigation, fertilizer and
pesticide usage, soil quality, etc.). This assumption is a rather hefty one, largely divorced from the realities
of marginal environments and subsistence farms, which include over 40% of the Earth's drylands,
particularly in Africa (13×l06km2) and Asia (11×l06 km2).8 Even within the European Union, 29% of the
agricultural area is farmed in marginal environments.9
Further, existing systems that mandate a focus on uniformity and stability to incentivize and protect
innovations, excludes farmers (the informal sector) from the seed innovations landscape in two ways:
First, the system fails to recognize the fact of farmers’ innovations (i.e., farmer-selection-based
in situ
improvements in seeds from generation to generation).10 Second, by regulatory or policy-driven insistence
on the cultivation of “uniform” seeds, that by definition, have narrow genetic make-ups, the possibility of
(downstream) innovations by farmers is severely restricted.11 Yet, perhaps ironically, the possibility of
4 Seed sector innovators have been broadly classified into two groups: (i) formal innovators, i.e., plant breeders affiliated with
Universities, research institutions or the seed industry, and (ii) informal innovators, i.e., farmers (particularly small and marginal
farmers, who constitute almost 80 percent of India’s farming community). See Shawn McGuire and Louise Sperling, "Seed
systems smallholder farmers use,"
Food Security
8, no. 1 (2016): p. 179-95.
5 Food and Agriculture Organization of the United Nations,
The seed sector and food security
(2001),
http://www.fao.org/3/Y2722E/y2722e0d.htm (accessed 6 June 2021).
6 FAO, "What is happening to agrobiodiversity?," (1999), http://www.fao.org/3/y5609e/y5609e02.htm (accessed 06 June 2021).
7 Ibid.
8 Robin P White, Daniel B Tunstall, and Norbert Henninger,
An ecosystem approach to drylands: building support for new
development policies
(World Resources Institute Washington, DC, 2002). In 1986, 1.4 billion farmers (or more) of the
agricultural landholding in countries of the Global South farm in marginal conditions (nearly 10 million people in Latin America,
280 million in Africa, and over 90 million in Asia raise food under difficult conditions), see Edward C Wolf,
Beyond the Green
Revolution: New Approaches for Third World Agriculture. Worldwatch Paper 73
(ERIC, 1986).
9 B Elbersen et al., "Mapping marginal land potentially available for industrial crops in Europe" (paper presented at the 26th
European Biomass Conference & Exhibition, 2018).
10 See for example, the story of HMT Rice, as well as Farmers’ Varieties application trends in Kochupillai,
Promoting sustainable
innovations in plant varieties
, 5, p. 113-22, supra note 2. See also Mrinalini Kochupillai, "Is UPOV 1991 a good fit for developing
countries?," in
Innovation Society and Intellectual Property
, ed. J. Drexl and A Sanders (Edward Elgar, 2019a), p. 44.
11 Kochupillai, "Is UPOV 1991 a good fit for developing countries?," p. 44-45, 50-52, supra note 10. Zewdie Bishaw and
Michael Turner, "Linking participatory plant breeding to the seed supply system,"
Euphytica
163, no. 1 (2008) state: “The
limitations of formal breeding approaches have been recognized in recent years, especially for crops grown in marginal and
diverse environments, where farmers’ requirements are more complex. This has prompted interest in alternative participatory
plant breeding strategies in which farmers can play an active role in the selection process”.
3
(upstream) informal innovation increases if the starting point is genetically variable, indigenous and
heterogenous seeds.
Assumptions that underlie international treaties are expected to reflect, as well as impact upon, realities.
This is equally true for international IP treaties, as well as various international agreements which set
minimum standards aimed at harmonizing and co-ordinating norm-setting among and within states. These
assumptions, as well as the (minimum) legal standards they result in, are of a scientific, socio-economic,
political or mixed nature, depending on the subject matter of the treaty/agreement. In effect, therefore,
international treaties and agreements frequently codify underlying assumptions about the social,
economic, cultural and/or environmental utility of the standards they aim to globalize.
While these assumptions may be correct in particular territorial, historic, scientific or socio-economic
contexts, once they are engrained in international standards that are cast into the stones of international
treaty law, they become global norms that are at best difficult, and at times even factually impossible to
implement, amend or adapt to suit local realities. In worse case scenarios, the habitual implementation
of such laws can lead to significant socio-economic, cultural, as well as environmental dystrophy.12 They
can also distort and artificially limit scientific research endeavours and reduce, rather than optimize,
equitable and inclusive innovations by all potential innovators.13 At the same time, whenever the
implementation of such standards does not lead to the materialization or manifestation of the underlying
assumptions, the global norms may ultimately become redundant, more broadly challenging their
legitimacy.
Using the international protection of plant varieties as an example, this contribution critically reviews the
assumptions built into the UPOV treaty regime, and examines whether they are supported by modern
science and empirical research on the importance of biodiversity for sustainable agriculture, food security
and nutrition. The article also highlights recent regulations and policies that embrace emerging scientific
findings and empirical trends and indicate a possible future trend towards norm-redundancy. Contrary to
expectations, this redundancy may extend beyond the context of biodiversity rich countries of the Global
South, into countries of the Global North, that are also (and perhaps more severely) struggling with
biodiversity losses and climate change.14
A Research questions
This contribution was guided by the following research questions:
1. What scientific presumptions underlie the UPOV treaty and the PBR regime it establishes?
2. What scientific presumptions underlie the Convention on Biological Diversity (CBD) and the
International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)?
3. What is the scientific and historical basis of the regulatory focus on uniformity/homogeneity and
stability? Does this focus correspond with current and emerging scientific understanding of how
sustainability can be ensured in agricultural production and innovation?
4. In what way, if at all, does agricultural biodiversity support food security and seed related
innovations?
These questions are explored in this paper also with a more long-term view of determining whether a
fundamental re-thinking of international intellectual property regulations is called for to promote and
incentivize what has been previously referred to as “sustainable innovations” in plant varieties.15
B Arrangement of the paper
12 Empirical research has revealed, for example, that innovations in the agricultural seed sector, supported by intellectual property
laws and associated seed replacement policies, have led to the gradual erosion of the culture of the farmer-to-farmer seed sharing
and seed exchange. This culture was crucial for in situ seed conservation and farmer improvement of seeds from location to
location and generation to generation. Kochupillai,
Promoting sustainable innovations in plant varieties
, 5, p. 222, 26 supra note
2.
13 Ibid. and also, Kochupillai, "Is UPOV 1991 a good fit for developing countries?," supra note 10.
14 WWF,
LIVING PLANET REPORT 2020 - Bending the curve of biodiversity loss
, WWF (2020),
https://www.zsl.org/sites/default/files/LPR%202020%20Full%20report.pdf (accessed 06 June 2021).
15 Kochupillai,
Promoting sustainable innovations in plant varieties
, 5, p. 15, supra note 2.
4
The paper is arranged as follows: following this introduction, section II briefly explores the assumptions
that underlie the UPOV agreement and the Plant Breeders Rights (PBR) regime it establishes.
Specifically, section II discusses the meaning and scope of the key terms under PBR regimes, giving
special attention to the historical scope of the term “variety” and the scientific basis of the focus on
“uniformity” (or homogeneity) and stability. Section III explores the assumptions that underlie the
Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for
Food and Agriculture (ITPGRFA). It specifically discusses the scientific basis of the importance given to
“diversity” (contained in landraces and farmers’ varieties) and “traditional knowledge” in the CBD and
the Seed Treaty. Section III also looks into current scientific research that highlights the importance and
the inter-relationship between seed and soil (microbial) diversity for the performance of
indigenous/heterogenous seeds in marginal environments, and the limited utility of “uniform” seeds in
such environments and in the face of climate change. In Section IV, the value of traditional (ecological)
knowledge vis-à-vis protection and enhancement of agrobiodiversity (i.e., seed and soil microbial diversity)
is explored in the context of the “Natural Farming” movement in India. Section V concludes with
exploring recent legislation in Europe that indicate a sort of “return to innocence”, focusing, once again,
on the importance of local seed and food diversity in the face of climate change and the ongoing global
pandemic. Section V also makes recommendations for further research and the need to urgently re-direct
international effort towards more diversity supporting “minimum standards” in intellectual property and
associated regulations.
II Assumptions underlying UPOV
A UPOV and its underlying assumptions: (Botanical) Varieties versus (Legal) Varieties
The International Union for the Protection of New Varieties of Plants (UPOV), was established by the
International Convention for the Protection of New Varieties of Plants (UPOV Convention). The
Convention itself was adopted in Paris in 1961 and was revised in 1972, 1978 and 1991. According to its
website, “UPOV's mission is to provide and promote an effective system of plant variety protection, with
the aim of encouraging the development of new varieties of plants, for the benefit of society.16”
UPOV focusses on promoting and protecting new “plant varieties”. The term “
plant variety
” is considered
to neither have a scientific nor a botanical origin.17 Its origin as well as rise to popular usage is usually
traced to the UPOV Convention of 1962. However, the term “
variety
” has a legal as well as a botanical
origin.
In the legal context, the term ‘variety’ was indeed defined, perhaps for the first time, under UPOV.18
UPOV defined the term under Article 2.2 of its 1962 Act, which states:19
For the purposes of this Convention, the word “variety” applies to any cultivar, clone, line,
stock or hybrid which is capable of cultivation and which satisfies the provisions of
subparagraphs (1)(c) and (d) of Article 6.
Article 6(1) (c) and (d) then go on to describe the
“homogeneity”
and
“stability”
requirement that every
“
cultivar, clone, line, stock or hybrid”
must fulfil in order to be deemed a “
new
variety
” and to qualify for
protection:
16 "Mission," 2011, https://www.upov.int/portal/index.html.en,.
17 European Patent Office, "Definition of the term "plant varieties"," ed. Case Law of the Boards of Appeal.
https://www.epo.org/law-practice/legal-texts/html/caselaw/2019/e/clr_i_b_3_1_1.htm
18
See
Sabine Demangue,
Intellectual Property Protection for Crop Genetic Resources: A Suitable System for India
(Herbert Utz
Verlag, 2005), p. 18.
19 In this regard, it is relevant to note that there existed a legal definition of “plant variety” from the year 1962 at least. Several
cases in the European Union also have accepted that the concept of “Plant Varieties” has been borrowed from the UPOV
convention.
See
ibid., 132, citing T 320/87 (Hybrid Plants/Lubrizol) point 12 of the reasons; T 49/83 (Propagating
material/CIBA-GEIGY) point 2 of the reasons; T56/93 (Plant Cells/PLANT GENETIC SYSTEMS), point 23 of the reasons;
G 1/198 (Transgenic Plants/NOVARTIS II), point 3.1 of the reasons.
5
(c) The new variety must be sufficiently
homogeneous
, having regard to the particular features of
its sexual reproduction or vegetative propagation.
(d) The new variety must be
stable
in its essential characteristics, that is to say, it must remain true
to its description after repeated reproduction or propagation or, where the breeder has defined
a particular cycle of reproduction or multiplication, at the end of each cycle.
In the European Union, the Biotechnology Directive20 clarifies the meaning of plant varieties by stating
that:
“…a variety is defined by its whole genome and therefore possesses individuality and is clearly
distinguishable from other varieties.”
21
Recital 31 adds that
“…a plant grouping which is characterized by a particular gene (and not its whole genome) is not a plant
variety.
22
The 1991 Act of UPOV substantially modified the definition of “variety” and replaced the “homogeneity”
requirement with the “Uniformity” requirement. UPOV 1991 states:
(vi) “variety” means a plant grouping within a single botanical taxon of the lowest known rank, which
grouping, irrespective of whether the conditions for the grant of a breeder’s right are fully met, can be
- defined by the expression of the characteristics resulting from a given genotype or combination of
genotypes,
- distinguished from any other plant grouping by the expression of at least one of the said
characteristics and
- considered as a unit with regard to its suitability for being propagated unchanged;
Thus, under the legal definition, in order to be deemed a “variety”, the plant grouping must (i) exhibit
specific characteristics that result from a given genotype, i.e., from the “internal environment” of the seed
as a whole, or, in other words, from its entire genome and not due to the expression of a particular gene;
(ii) these characteristics (or at least one of them) should help distinguish it from any other plant grouping,
and (iii) it must be able to propagate itself
unchanged
.
It is in the context of botanical taxons and ranks mentioned in the above legal definition of “variety”, that
one can (also) find the botanical meaning of the term. The International Code of Nomenclature for Algae,
Fungi and Plants23 places the term “Variety (varietas)” as the category in the botanical nomenclatural
hierarchy between species and form (forma).24
20 Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological
inventions (Biotechnology Directive).
21
See
Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of
biotechnological inventions,
Recital 30, Official Journal L 213, 30/07/1998, pp.0013 – 0021 (1998).
See
Demangue: 2005, supra
note 18.
22
See
Demangue,
Intellectual Property Protection for Crop Genetic Resources: A Suitable System for India
, p. 133
See
Demangue: 2005, supra note 18.
23 Chapter 1, Article 4.1 of the International Code of Nomenclature for algae, fungi and plants states:
4.1.
The secondary ranks of taxa in descending sequence are tribe (tribus) between family and genus, section (sectio) and series
(series) between genus and species, and variety (varietas) and form (forma) below species.
See ISHS Secretaria,
The International
Code of Nomenclature for Cultivated Plants (ICNCP)
(2009), http://www.ishs.org/scripta-horticulturae/international-code-
nomenclature-cultivated-plants-ninth-edition (accessed 06 June 2021).
24 In the plant kingdom, every plant is grouped or classified using a taxonomic hierarchy. The plant becomes more and more
specific (and easy to identify) as we go down the hierarchy, i.e. to lower ranks in the hierarchy. In other words, each rank
comprises a set of organisms that become more and more specific as we go down the hierarchy. At the top of the (botanical)
hierarchy, for example, is the taxonomic rank “life”, followed by “domain”, “kingdom”, “phylum”, “class”, “order”, “family”,
“genus” and “species.” Below the rank of species, come “sub-species”, followed by “variety” and then “form”.
6
This botanical usage of the term “variety” pre-dates the adoption of UPOV and has been defined in
different ways by various notable botanists. The emergence of the term was highly influenced by Darwin’s
work on evolution of species.25 One of the earliest definitions of “variety” is by Linnaeus, who, in 1753,
in the
Species Plantarum
, defined “variety” as: “a plant changed by accidental cause due to the climate,
soil, heat, wind, etc. It is consequently reduced to its original form by a change of soil. Further, the kinds
of varieties are size, abundance, crispation, colour, taste, smell. Species and genera are regarded as always
the work of nature, but varieties are more usually owing to culture. 26”
The reference to ‘culture’ in the botanical definition of “variety” is significant as it indicates the very
localized nature of a “variety” and that various cultural contexts can lead to the evolution, in various
geographies, of diverse varieties belonging to the same species (or sub-species). The interpretation of
Linnaeus’ work by Fernald (1940)27 confirms this understanding, as he opined that Linnaeus “generally
designated as varieties
indigenous
plants which he considered to be
natural (often geographic) variations
within the broad limits of his specific concept. 28” (emphasis supplied)
In later works, botanists have distinguished “sub-species” and “varieties”, with the former term used to
indicate “major morphological variations” or “variations of greater value”, while the latter to indicate
“minor ones”. Asa Gray, a leading botanist of 19th century America, said in 1836 that “any considerable
change in the ordinary state or appearance of a species is termed a variety. These arise for the most part
from two causes, viz.: the influence of external circumstances29, and the crossing of races.”30 Here we see,
therefore, that before the era of genetic engineering rose to prominence, varieties were known to result
not just from “crossing” (i.e. breeding activities that seek to change the “internal environment” of the
seed), but also by natural environmental factors (i.e. the “external environment” to which a seed is
subjected). In other words, it is not just the “internal atmosphere” of a seed, but also its external
environment that determines its characteristics. Indeed, today even geneticists confirm that the (seed’s)
external environment (that contributes specific nourishment, inter alia, through soil and manure quality,
as well as biotic and abiotic stressors) will also contribute to determining which genes will express
themselves and which will remain dormant,31 particularly when the seed’s internal genetic environment
has not been artificially narrowed with the aim of ensuring “uniformity” and “stability” in specific external
conditions.
Undoubtedly, the use of the term “variety” has become less frequent within the field of botany32 (with
preference given to the more important differences reflected under the taxonomic ranks “species” and
25 Karen Hunger Parshall, "Varieties as incipient species: Darwin's numerical analysis,"
Journal of the History of Biology
15, no.
2 (1982): p. 199.
26 As translated by Ramsbottom in 1938: see Ramsbottom, J. (1938), Linnaeus and the species concept. Proceedings of the
Linnaen Society of London 192-219; p. 199. See also, Robert T. Clausen, "On the use of the terms" subspecies" and" variety","
Rhodora
43, no. 509 (1941): p. 159.
27 Merritt Lyndon Fernald, "Some spermatophytes of eastern North America,"
Contributions from the Gray Herbarium of
Harvard University
, no. 131 (1940) cited in Clausen, "On the use of the terms" subspecies" and" variety"," p. 160.
28 Others, however, disagreed with Fernald and found Linnean varieties to have little to do with geographic limitations but were
“minor variations in colour, leaf-cutting, crispation, pubescence, habit and similar characters….” although an “occasional one is
geographically significant. See Clausen, "On the use of the terms" subspecies" and" variety"," p. 160.
29 See, however, the discussion under sub-section IIB, where we see that early geneticists considered genetic identity to be
independent of environmental influence. More recently, historians of science have attempted to re-emphasize the importance of
taking environmental influences into account, together with the inherent genetic make-up of seed to avoid determinism resulting
from a focus exclusively on a seed’s “internal” environment. Gregory Radick, "Teach students the biology of their time,"
Nature
News
533, no. 7603 (2016).
30 Asa Gray,
Elements of botany
(G. & C. Carvill & Company, 1836) as cited in Kuang-Chi Hung, "Finding Patterns in Nature:
Asa Gray's Plant Geography and Collecting Networks (1830s-1860s)" (2013), p. 77,
https://core.ac.uk/download/pdf/28945214.pdf (accessed 06 June 2021).
31 Ya‐Nan Chang et al., "Epigenetic regulation in plant abiotic stress responses,"
Journal of integrative plant biology
62, no. 5
(2020).
32 By the early 1900s, the term “variety” started being disfavoured by botanists due to its broad and non-specific nature, often
indicative only of “minor” differences. The American Code of Botanical Nomenclature, for example, stated that “The term
variety is relegated to horticultural usage.” Later, botanists who were inclined to adopting the experimental approach to
taxonomy said in the context of the term “variety” that it “has such a multiplicity of uses and so often applied only to races,
ecologic responses, horticultural forms, or even to abnormalities that,… its use in serious taxonomic work were better
discontinued.” Indeed, from an experimental point of view, various experts opined that the most important unit under the rank
7
“subspecies.”) However, it is important to note that the botanical term “variety”, which reflects “minor”
differences, does not presuppose “uniformity” or “stability”, neither within the same farmland (due to
shifting environmental circumstances), nor across various geographic, environmental, soil type and other
factors. In fact, within specific species and sub-species, a variety can be expected to naturally display
different characteristics depending on various external factors and influences. Further, the changes seen
in any “variety” (in the botanical sense) can originate from the work not just of plant breeders, but also of
farmers, inter alia, based on cultural preferences and environmental expediencies.
It is, therefore, quite interesting that India, while following a definition of variety that is very close to the
above UPOV definition,33 also recognizes a different category called “farmers’ varieties.” Farmers varieties
are defined to include landraces and wild relatives of a variety. To this extent, the Indian law seems to
include both the legal as well the botanical understanding of “variety” within its scope. Section 2(l) of the
Indian law states:
2(l) “farmers’ variety” means a variety which—
(i) has been traditionally cultivated and evolved by the farmers in their fields; or
(ii) is a wild relative or land race of a variety about which the farmers possess the common
knowledge;
Wild relatives and landraces34 differ significantly from UPOV’s “varieties” because they can and do
change
during the course of repeated cycles of propagation. This change occurs as a result of the genetic variability
inherent in heterogenous (as opposed to homogenous) propagation materials (such as seeds), and is
triggered, inter alia, by external circumstances such as climate change, pest attacks, drought or flood
conditions etc. While genetic variability makes landraces and farmers’ varieties more robust in the face
of biotic and abiotic stresses, it is antithetical to “uniformity” and “stability”, which are pre-conditions for
the grant of plant breeders’ rights certificates under UPOV.
B
UPOV and its underlying assumptions: The Scientific (Ir)rationale of the DUS requirement
The legal concept of uniformity can be traced back to the “homogeneity” requirement under the 1962
UPOV Act, which became “Uniformity” in the later acts. UPOV 1991 (Article 8) defines a “uniform”
variety rather generally, as
A variety shall be deemed to be uniform if, subject to the variation that may be expected from the
particular features of its propagation, it is sufficiently uniform in its relevant characteristics.
The regulatory focus on uniformity can be traced back to the (re)discovery of Mendelian genetics in the
early 1900s.35 Gregor Johann Mendel published his understanding of the laws of heredity in 1865.
However, the dissemination of the findings in the scientific and political community followed only in
1900, rediscovered by K.E. Correns, E. von Tschermak and H. de Vries.36 They rejected breeding
methods inspired by Darwin’s evolutionary theory as scientifically unsound and not feasible for practical
“species” should be the “ecotype”, carefully determined by experiment and by plotting distributions on maps and analyzing
specimen plants both cytologically and genetically. It is noteworthy here that botanists can often detect “geographic and
ecological variations” of ecotypes, that are classified as taxonomic sub-species Clausen, "On the use of the terms" subspecies"
and" variety"," p. 159; at p. 163-164.
33 but excludes “combination of genotypes” under the first bullet point.
34 A landrace has been defined as a “dynamic population of a cultivated plant that has a historical origin, a distinct identity and
lacks formal crop improvement, as well as often being genetically diverse, locally adapted and associated with traditional
farming systems.” Tania Carolina Camacho Villa et al., "Defining and identifying crop landraces,"
Plant Genetic Resources
3,
no. 3 (2005): 373, 81.
35 Christophe Bonneuil, "Seeing nature as a ‘universal store of genes’: how biological diversity became ‘genetic resources’, 1890–
1940,"
Studies in History and Philosophy of Science Part C: Studies in History and Philosophy of Biological and Biomedical
Sciences
75 (2019): p. 3.
36 Christophe Bonneuil, "Producing identity, industrializing purity: Elements for a cultural history of genetics,"
A cultural history
of heredity
4 (2008); Michael Blakeney,
Intellectual property rights and food security
(Cabi, 2009).
8
breeding,37 and focused, instead, on Mendel’s theory of heredity based on
stability
of genes.38 Johannsen
emphasized the
purity
of genetic material39 - he considered “the genotype as a whole as the elementary
species and the
pure line
, as the key permanent biological type”.40 In the early 1900’s, with the expanding
practice of plant breeding, the understanding that genetic purity is rare and actually leads to instability
,
was increasingly overtaken by the understanding that genetic purity and stability are indicative of quality
and replicability.41 Early geneticists considered genetic identity to be independent of environmental
influence (i.e., that gene expression is not influenced by the plant’s environment, but primarily or
exclusively by the internal genetic make-up of the plant, i.e. the plant genome).42 This led to a sort of
obsession with
genetic purity
and
stability
that continues in the plant breeding community to date.43
According to Provine (1971), “the climate of biological opinion was favorable to the pure line theory”.44
When Johannsen presented his pure line theory at a symposium in 1910, most geneticists accepted the
theories without adequate proof.45
There are, indeed, also more economics-driven reason for the continuing importance given to pure and
stable genetic materials: Pure and stable genetic material lead to uniform and stable plant varieties that
can be easily protected by plant breeders’ rights and patents. Indeed, industrial standardisation and quality
controls have allowed and supported the emergence of the breeding industry.46 Industrial breeders can be
said to have considerably contributed to the success of Mendel’s and Johannsen’s theory47 because the
existence of property rights permits the charging of monopoly rents and recoupment of (allegedly) high
costs involved in the creation, certification, and marketing of new varieties.48
37 Bowler called this “The eclipse of Darwinisms”, see Peter J Bowler,
The eclipse of Darwinism: Anti-Darwinian evolution
theories in the decades around 1900
(JHU Press, 1992), 15. Rather than just being a shift in evolutionary thinking, biology’s
knowledge regime shifted “from an evolutionary space-time to an experimental-combinatory space-time…19th century biology’s
emphasis was on continuous change, exchange and admixture—rather than on stability, fixity, isolation and purity—as
fundamental properties of life and as driving forces of evolution… Early 20th century biologists, on the contrary, put the
emphasis on isolation as the driving force of speciation (synthetic theory of evolution) and ceased to view naturally occurring
hybridization and gene flow as a major research object sought for new typological units reinforcing stability and fixity as an
underlying principle of life and turned organisms into purified reagents that experimental strategies put in reaction with one
another.” Bonneuil, "Producing identity, industrializing purity: Elements for a cultural history of genetics," p. 85, 86, supra note
36.
38 “Mendel’s theory of heredity relies on equality and stability throughout all stages of the life cycle”, see Petr Smýkal et al.,
"From Mendel’s discovery on pea to today’s plant genetics and breeding,"
Theoretical and Applied Genetics
129, no. 12
(2016): p. 2267.
39 W Johannsen, "Heredity in populations and pure lines,"
Classic Papers in Genetics
(1903).
40 Bonneuil, "Producing identity, industrializing purity: Elements for a cultural history of genetics," supra note 36, citing
Frederick B Churchill, "William Johannsen and the genotype concept,"
Journal of the History of Biology
7, no. 1 (1974).
41 Emerging from the beer brewing industry and the mass production of standard quality beer by Johann, see Bonneuil,
"Producing identity, industrializing purity: Elements for a cultural history of genetics," 98.
42 Mary Douglas, "An analysis of the concepts of pollution and taboo,"
London: Ark
(1966). Bonneuil, "Producing identity,
industrializing purity: Elements for a cultural history of genetics," p. 105, supra note 36, states that “in the wide cultural shift
from the 19th to the 20th century, a deep and intrinsic genetic identity was constructed for living organisms, separated from the
influence of the place and the environment.”
43 In 1890, Proskowetz proposed a race catalogues of materials (varieties) at the International Congress for Agriculture and
Forestry in Vienna in 1890, E von Proskowetz and F Schindler, "Welches Werthverhältnis besteht zwischen den Landrassen
landwirthschaftlicher Culturpflanzen und den sogenannten Züchtungsrassen" (paper presented at the Internationaler land-und
forstwirthschaftlicher Congress zu Wien, 1890), p. 3; Bonneuil, "Seeing nature as a ‘universal store of genes’: how biological
diversity became ‘genetic resources’, 1890–1940," supra note 35. See also Bonneuil, "Producing identity, industrializing
purity: Elements for a cultural history of genetics," supra note 36.
44 William B Provine, "The origins of theoretical population,"
Genetics. Chicago: University of Chicago Press
(1971): 108.
45 “In 1910 (sic) the pure line theory seemed so obvious that most outstanding geneticists accepted it without adequate proof.
Most of them also accepted the related selection theory, and the two ideas became firmly associated.” Ibid.
46 “Pure lines, and the particular kind of typological thinking that was associated with them, were the cornerstone of the
production of both sound knowledge and of large agro-food markets and industries.” Bonneuil, "Producing identity,
industrializing purity: Elements for a cultural history of genetics," p. 98 Supra note 36. See also Blakeney,
Intellectual property
rights and food security
, supra note 36.
47 Berris Charnley and Gregory Radick, "Intellectual property, plant breeding and the making of Mendelian genetics,"
Studies in
History and Philosophy of Science Part A
44, no. 2 (2013), https://doi.org/https://doi.org/10.1016/j.shpsa.2012.11.004
(accessed 06 June 2021).
48 Harvey E Lapan and GianCarlo Moschini, "Innovation and trade with endogenous market failure: The case of genetically
modified products,"
American Journal of Agricultural Economics
86, no. 3 (2004).
9
Pure (parental) lines, purified for specific traits, are also a prerequisite for the creation of F1 hybrids.49 F1
hybrids, in turn, also help industrial breeders maintain their market monopolies in two ways: (i) once two
(or more) parental lines are crossed to create an F1 hybrid, it is difficult to identify (or recreate) the
parents. This is because the resulting hybrid out-performs both parents due to a phenomenon known as
hybrid vigour or heterosis;50 (ii) F1 hybrids do not reproduce true to type. This means that farmers who
attempt to save seeds from the harvest of their F1 seeds for sowing the next season’s crop are likely to
experience ever-lowering yields due to the segregation of genetic materials in the second generation.51
Blakeney et al. (2009) argue that it was perhaps no coincidence that the dissemination of Mendelian
theory in the early 1900s coincided with the industry push for property rights for new inventions and
discoveries in agriculture.52 To ensure ‘quality control’, the purity and stability criteria of plant material
became the norm not only for industrial seed production but also in experimental biology and as a means
of ensuring fairness in social and economic dealings.53
The standardisation of plant breeding and its focus on uniformity and purity caused a divide between
landraces (preserved and improved over time by farmers
in situ
) and cultivars (resulting out of plant
breeders’ labs or out of highly regulated and carefully managed agricultural testing lands).54 Landraces
were considered “not suitable for anything”, obsolete, unproductive, and were reduced to a mere gene
store55 (as indicated in the popular term “plant genetic resources”). A resolution on conserving landraces
in 190756 by a locally-oriented public initiator “soon came under private breeders' fire” leading to its
decline.57 However, as a paradox of modern breeding, the breeder Baur (1914) warned of their
disappearance and the urgent need to preserve landraces.58
What has resulted since the widespread acceptance of Mendelian genetics and the “pure line” theory, is
a systematic exclusion of farmers (as seed sellers) from the agricultural seed market, especially in Europe.59
This resulted in a whole array of undesirable consequences, including the erosion of agricultural
biodiversity and rapid conversion to conventional farming heavily reliant on expensive chemical inputs.60
Arguably, therefore, the requirements of “uniformity” and “stability” have been introduced into the (legal)
definition of ‘plant variety’ through a legal fiction because genetic purity, uniformity and stability are
important primarily from a legal (and industrial) standpoint, and not from scientific or (marginal) farm-
environment perspectives. Blakeney et al. (2009) have also stated that “the scientific notion does not
necessarily coincide with the legal concept. The law may require certain characteristics for a protected
variety that may not be essential for a scientific definition”. 61
49 F1 hybrids are the first filial generation resulting from cross-mating of distinctly different parent types. F1 have hybrid vigor,
which is a manifestation of heterozygosity and allows breeders to improve the performance of resulting generation. See NU
Khan, "F1 Hybrid,"
S. Maloy and K. Hughes
(2013).
50 Stanley Maloy and Kelly Hughes,
Brenner's encyclopedia of genetics
(Academic Press, 2013), Heterosis by Timberlake, W.
E.
51 A Riaz et al., "Genetic diversity of oilseed Brassica napus inbred lines based on sequence‐related amplified polymorphism
and its relation to hybrid performance,"
Plant breeding
120, no. 5 (2001).
52 Blakeney,
Intellectual property rights and food security
, supra note 36.
53 Bonneuil, "Producing identity, industrializing purity: Elements for a cultural history of genetics," p. 99, 100 supra note 36
54 Ibid., p. 95. supra note 36.
55 Bonneuil, "Seeing nature as a ‘universal store of genes’: how biological diversity became ‘genetic resources’, 1890–1940," p. 3,
supra note 35, citing Erwin Baur,
Die Bedeutung der primitiven Kulturrassen und der wilden Verwandten unserer
Kulturpflanzen für die Pflanzenzüchtung
(éditeur non identifié, 1914).
56 VIII. Internationaler Landwirtschaftlicher Kongress Wien. 21-25 Mai 1907. Organisation. Vienna: Versay, vol. 1, p. 282.
57 Bonneuil, "Seeing nature as a ‘universal store of genes’: how biological diversity became ‘genetic resources’, 1890–1940," p. 3,
supra note 35.
58 Baur,
Die Bedeutung der primitiven Kulturrassen und der wilden Verwandten unserer Kulturpflanzen für die
Pflanzenzüchtung
Jahrbuch Deutsche Landwirt.
Gesell.(Saatzuchtabteilung)
, 1914. Also see Kochupillai, M.
Promoting
Sustainable Innovations in Plant Varieties
, supra note 2 at p. 11-14.
59 Elise Demeulenaere and Yvonne Piersante, "In or out? Organisational dynamics within European ‘peasant seed’ movements
facing opening-up institutions and policies,"
The Journal of Peasant Studies
47, no. 4 (2020).
60 Jonathan Harwood,
Europe's Green Revolution and Others Since the Rise and Fall of Peasant-Friendly Plant Breeding
(Routledge, 2012), p. 144.
61 Blakeney,
Intellectual property rights and food security
, p. 88, supra note 36.
10
In fact, as stated previously, pure, uniform, and stable lines are able to perform well only in carefully
managed environments because, contrary to the claims of early geneticists, a plant’s genetic identity is not
independent of its environment but highly influenced by it.62 In this context, the following explanation is
helpful:
This observation can be better understood by the following scientific facts: the physical
properties (including shape, size, yield, pest resistance etc.) of a plant are dependent on its
environment as well as on its genotype (i.e. genes and genetic structure).
63 Environmental
variations, as well as genetic variations, will therefore affect the phenotype of a crop.
64
Environmental variations cannot be built into the genetic makeup of a crop. However, formal
crop improvement (plant breeding) programs can manage the genetic makeup of a crop…. In
order to ensure that a formally bred seed or plant is selected on the basis of its ‘nature’ (i.e.
genetic makeup) and not its ‘nurture’ (i.e. the environment in which it is grown), formal plant
breeders breed plants in as uniform an environment as possible.
65 It is expected (or presumed)
that these uniform environments will also be reproducible in commercial or actual farmers’
fields. It is for this reason that formally bred cultivars often fail in natural environments that
are not engineered to mimic the breeders’ ideal environments. Landraces and traditional
varieties that have high genetic variability, on the other hand, are able to perform even in the
most adverse of natural farm conditions because of their inherent genetic variability….
66 In
developing countries where a large percentage of farmers do not have the means to simulate
artificial perfect farm conditions, the importance of landraces becomes even more apparent.
(Footnotes are from the original)
This is where we can start to understand the relevance of agrobiodiversity contained in farmers’ varieties
and landraces. We discuss this in further detail in the following section.
III Assumption underlying the Convention on Biological Diversity (CBD) and the Seed Treaty
62 Contrary to what one might expect from the legal focus on genetic purity and resulting uniformity and stability, complex gene-
environment interactions influence the characteristics of seeds Diane R Campbell and Nickolas M Waser, "Evolutionary
dynamics of an Ipomopsis hybrid zone: confronting models with lifetime fitness data,"
The American Naturalist
169, no. 3 (2007)
Both landraces and commercial varieties are influenced by and adapt to their environment, see Monica Rodriguez et al.,
"Genotype by environment interactions in barley (Hordeum vulgare L.): different responses of landraces, recombinant inbred
lines and varieties to Mediterranean environment,"
Euphytica
163, no. 2 (2008). He et al. 2014 found temperature and access to
light to significantly impact seed development - Hanzi He et al., "Interaction between parental environment and genotype affects
plant and seed performance in Arabidopsis,"
Journal of experimental botany
65, no. 22 (2014). They also found nitrate to have
a small impact on the traits of seeds. Rainfall and available phosphorus positively and significantly influence the content of relevant
nutrients such as iron and zinc in seeds, while temperature, total soil nitrogen and manganese negatively impacted seed iron
content, see Mashamba Philipo, Patrick A Ndakidemi, and Ernest R Mbega, "Environmental and genotypes influence on seed
iron and zinc levels of landraces and improved varieties of common bean (Phaseolus vulgaris L.) in Tanzania,"
Ecological
Genetics and Genomics
15 (2020). These facts continue to give sleepless nights to plant breeders in scientific laboratories and
industries alike. The increasing importance given to IoT devices and remote sensing data to ensure “climate smart” and
“precision” agriculture, is a result of this fact, see Rodriguez et al., "Genotype by environment interactions in barley (Hordeum
vulgare L.): different responses of landraces, recombinant inbred lines and varieties to Mediterranean environment,"). Supra note
62.
63 See Kochupillai,
Promoting sustainable innovations in plant varieties
, 5, p. 54, supra note 2, footnote 18, citing interviews with
experts: “Characteristics of plants are determined by their genes or genetic composition: The expression of certain genes or
combinations of genes produces a trait – for example, a specific colour, taste, smell or other characteristics such as pest resistance,
high yield, nutritive value etc. However, whether or not certain genes are expressed depends,
inter alia
, on the environment
(including the soil, climate, water conditions etc.) in which the plant is grown.”
64 Specific environments cause specific genes within the cells of plants to either express themselves or remain dormant. The
phenotype (or physical characteristics of a plant, which include traits such as yield and pest resistance) are a product of the
genotype of the plant and the environment in which it grows.
65 George Acquaah,
Principles of plant genetics and breeding
(John Wiley & Sons, 2009), p. 79.
66’ Villa et al., "Defining and identifying crop landraces," p. 374, supra note 34 who say that landrace conservation is therefore
closely associated with food security and that landraces are also playing an increasingly important role in alternative farming
systems such as organic farming.
11
A Underlying assumptions of CBD and the Seed Treaty: The scope and importance of “diversity”
& “traditional knowledge”
Juxtaposed to UPOV’s assumption of the importance of “uniformity”, “stability” and related “genetic
homogeneity” or “purity”, is the CBD’s and the Seed Treaty’s (ITPGRFA) assumption of the importance
of (agro)biodiversity. Since its inception, the CBD has underscored (and, therefore, assumed) the
importance of biodiversity within the soil (i.e. the soil microbiome) & on the soil (i.e. seed/plant
biodiversity). Equally relevant is the recognition and high status given within the CBD to the valuable role
played by traditional knowledge & associated systems, practices, & innovations, in maintaining this
biodiversity & using it in a sustainable manner (CBD, Articles 8(j), 17). The CBD also mandates the
sharing of social and economic benefits (“benefit sharing”) with the people preserving and using this
knowledge in situ.67
Equitable benefit sharing is presumed necessary not only to ensure fair compensation for sharing
biodiversity and associated know-how, but also to ensure that communities engaged in protection and
in
situ
conservation of (agro)biodiversity have (monetary) incentives to continue their important work.68
Similar to the CBDs focus on biodiversity generally, the Seed Treaty, focusses on agrobiodiversity,
especially agricultural seed diversity and mechanisms to conserve, preserve and protect this diversity, while
facilitating its equitable and beneficial sharing.
‘Conservation’ and ‘preservation’, however, are unfortunate terms in the context of agrobiodiversity69, not
least because farmers and farmer communities don’t just conserve this diversity but constantly improve it
and innovate with it, with the help of traditional and indigenous know-how and technologies. Indeed, the
CBD encourages international “cooperation for the development & use of technologies, including
indigenous and traditional technologies, in pursuance of the objectives of the Convention”.70
The relevance of traditional technologies, as well as of associated traditional ecological knowledge (TEK),
is, however, context-dependent. To understand the context, it is useful to go back in time to the
development of “high yielding varieties” (HYVs) during the “Green Revolution”. Prior to the
development of HYVs by Norman Borlaug, “lodging” was witnessed when traditional (indigenous or
Desi
) wheat seeds were treated with chemical fertilizers: they would grow rapidly and prematurely fill up
with grain, the weight of which made them ‘lodge’ and die before they were ready for harvest.71
The careful breeding of semi-dwarf wheat and rice seed varieties (HYVs) under the “Green Revolution”
resolved a two-fold problem: the problem of traditional varieties being non-responsive to fertilizer treated
soils72 and the problem of lodging,73 paving the way for bumper crops, and the promise of economic and
social prosperity for all farmers. Indeed, the notion that scientific intervention for the creation of “new
varieties” is necessary for high yield and food security was also propelled in developing countries, at least
in part, by the demonstrated success of Normal Borlaug’s HYVs.74
67 CBD, "CONVENTION ON BIOLOGICAL DIVERSITY," Article 2 (1992): Article 10, https://www.cbd.int/doc/legal/cbd-
en.pdf (accessed 06 June 2021).
68 Mrinalini Kochupillai et al., "Incentivizing Research & Innovation with Agrobiodiversity Conserved In Situ: Possibilities and
Limitations of a Blockchain-Based Solution,"
Journal of Cleaner Production
(2021).
69 Kochupillai, "Is UPOV 1991 a good fit for developing countries?," supra note 10.
70 CBD, "CONVENTION ON BIOLOGICAL DIVERSITY," Article 18.4
71 Adnan Noor Shah et al., "Lodging stress in cereal—effects and management: an overview,"
Environmental Science and Pollution
Research
24, no. 6 (2017).
72 Thomas F Döring et al., "Comparative analysis of performance and stability among composite cross populations, variety
mixtures and pure lines of winter wheat in organic and conventional cropping systems,"
Field Crops Research
183 (2015): 240;
Odette D Weedon and Maria R Finckh, "Heterogeneous winter wheat populations differ in yield stability depending on their
genetic background and management system,"
Sustainability
11, no. 21 (2019): 9.
73 Ayako Okuno et al., "New approach to increasing rice lodging resistance and biomass yield through the use of high gibberellin
producing varieties,"
PLoS One
9, no. 2 (2014).
74 In India, several economic and political pressures also led to the systematic replacement of traditional, diversity-based crops
and farming systems with uniform, homogenous-varieties based monocultures. Kochupillai,
Promoting sustainable innovations
in plant varieties
, 5, p. 86-91, supra note 2.
12
What is not discussed in the success story of the “Green Revolution” is its impact on
traditional/indigenous seeds and landraces that were
not
engineered to withstand the application of
chemical fertilizers. The claim that the cultivation of traditional seeds that incorporate agrobiodiversity
and genetic variability is not adequate for food security, needs to be considered in this context. Studies
that compare the productivity of landraces with that of improved varieties on fertilizer treated soils
can,
therefore, be expected to show lower yields for landraces and farmers’ varieties, than for seeds whose
genetic environment is engineered to perform in such soils. Therefore, the rapid expansion of
conventional agriculture and the resulting loss of indigenous/traditional knowledge and associated farming
systems that teach farmers how to retain soil fertility without chemical inputs and “improved” seeds, are
among the main threats to landraces and in-situ agrobiodiversity conservation.75
Yet, landraces, indigenous/farmers’ varieties and associated traditional knowledge-based farming systems
offer a robust local strategy for food security, including coping with climate change. They may also
economically benefit (marginal) smallholder farmers by granting them independence from cost-intensive
inputs such as breeders’ seeds, chemical fertilizers and pesticides, while helping revive and conserve local,
traditional knowledge.76
In the following sub-sections, we take a closer look into the current scientific understanding of the
importance of diversity and variability contained in landraces and the impact of plant genetic diversity on
soil health and nutrition contained in food. In the next section (section IV), we also look at how indigenous
and local farming systems based on traditional ecological knowledge (TEK) are helping farmers in India
conserve both seed and soil (microbial) diversity, leading to enhanced farmer profits, improved soil health
and increase in agrobiodiversity. The rapid adoption of these farming systems and associated adoption of
indigenous, heterogenous seeds across India (and beyond) calls to question the rationale and assumptions
underlying the NDUS criteria employed to incentivize innovations in plant varieties.
B Underlying assumptions of CBD and the Seed Treaty: The relevance of landraces and genetic
variability
We saw in the previous section that modern genetics and the science of plant breeding developed under
the aegis on Mendel’s theory of heredity and were supported by pure-line theories proposed by scientists
such as Johanssen.77 However, already in 1972, the US report “Genetic Vulnerability of Major Crops”
attracted attention in science:78 it found genetic uniformity to be the source of vulnerability to plant diseases
and abiotic/biotic stresses. The report challenged dominant scientific thought and the national policies
that relied on it. However, it is important to note here that although scientists take on the blame for the
focus on uniformity, the markets (and consumers) also demand uniformity (e.g. in the form size, shape,
colour, texture of vegetables and grains).79
Not surprisingly, therefore, today, the legal fictions and assumptions underlying UPOV continue to
unchangeably favour Mendel’s theory of heredity and the pure line theory. Empirical, as well as scientific
evidence opposing these theories, is, however, rising. Various studies find higher variety and variability of
plant genetic resources to be more efficient than pure lines. For example, increased within-crop genetic
diversity has been found to enhance yield stability and yield reliability while permitting rapid and dynamic
response to change (e.g. changes in climatic or biotic stresses).80
75 Benbrahim et al., "On-farm conservation of Zaer lentil landrace in context of climate change and improved varieties
competition,", supra note 76.
76 Nadia Benbrahim et al., "On-farm conservation of Zaer lentil landrace in context of climate change and improved varieties
competition,"
Univ J Agric Res
5 (2017); Ana Carolina Feitosa Vasconcelos et al., "Landraces as an adaptation strategy to
climate change for smallholders in Santa Catarina, Southern Brazil,"
Land Use Policy
34 (2013).
77 Raoul A Robinson, "Breeding for quantitative variables. Part 2: Breeding for durable resistance to crop pests and diseases,"
and farmer participation
(2009): 368.
78 National Research Council,
Genetic Vulnerability of Major Crops.
, National Academy Of Sciences (Washington, D.C,
1972),
79 V Ramanatha Rao, AHD Brown, and M Jackson,
Managing plant genetic diversity
(Cabi, 2001), 6.
80 Döring et al., "Comparative analysis of performance and stability among composite cross populations, variety mixtures and
pure lines of winter wheat in organic and conventional cropping systems," supra note 72.
13
Unlike pure lines and hybrids created in artificial or carefully managed environments, landraces are, by
definition, unique to the region where they evolve.81, 82 Although farming (including farming with landraces
or farmers’ varieties) reduces the overall plant or natural biodiversity, cultivation with
traditional/indigenous landraces, rather than with uniform and stable seeds, helps increase, or at least
maintain,
agro
biodiversity. In this context, it is useful to revisit the distinction between genetic
variation
and genetic
variability
as discussed in significant detail elsewhere:83
Genetic variation is synonymous with genetic diversity or biodiversity….
84 Genetic variability,
on the other hand, refers to the ability of the genetic make-up of a specific crop variety
(sic.)
(or landrace) to transform or adapt itself to varying biotic and abiotic stresses.
85 The process
of creating a landrace in a region leads to the reduction of the genetic pool or genetic variation
seen within that region prior to the commencement of agriculture there in. However,
individual landraces, although displaying a certain genetic integrity, have a high level of
genetic variability that equips them to withstand specific biotic and abiotic stresses within the
local area where they were developed.
86 This genetic variability therefore confers on
landraces, their peculiar suitability to local climatic and soil conditions and their superior
ability to resist pests and diseases, particularly those endemic to a specific geographic and
climatic region.
(Footnotes are from the original)
In other words, the genes of landraces are highly variable due to continuous evolution in the face of
unpredictable phenological events linked, inter alia, to climate change.87 This variability helps landraces
adapt to varying biotic and abiotic stresses, such as weather extremes or pest attacks, making them more
climate resilient than improved and uniform varieties.88 Research has shown, for example, that Lucerne
landraces from five different countries learned to cope differently with environmental stress situations
such as drought (Italian landraces) or salt-stress environments (Moroccan landraces).89 Lima bean
landraces showed high adaptability to drought and temperature stress and competitiveness under such
81 As farmers repeatedly select seeds having desirable traits necessary to ensure high yield and pest resistance in the next season’s
harvest, they narrow down the gene pool of the crop. In other words, agriculture leads to a reduction in genetic diversity (also
called genetic
variation
) or of natural biodiversity in areas where human agricultural intervention is commenced. It is this selected
gene pool that has a certain identity that is termed by modern science as a ‘landrace’.
82 A landrace has been defined as “dynamic population(s) of a cultivated plant that has a historical origin, a distinct identity and
lacks formal crop improvement, as well as often being genetically diverse, locally adapted and associated with traditional farming
systems.” Villa et al., "Defining and identifying crop landraces," 373, 81. Landraces with a more identifiable set of traits are often
described as farmers’ varieties. See also Noel Kingsbury,
Hybrid: the history and science of plant breeding
(University of Chicago
Press, 2009), 39-40
,
However, the exact breadth and scope of the terms ‘landrace’ and ‘farmers’ varieties’ appears not to be
clearly demarcated in the scientific literature. David A Cleveland, Soleri Daniela, and Steven E Smith, "A biological framework
for understanding farmers’ plant breeding,"
Economic Botany
54, no. 3 (2000): 377, 78. The authors suggest a much broader
definition than that suggested by Camacho Villa et al. According to them, farmers’ varieties include landraces, locally adapted
modern varieties, and progeny from crosses between landraces and modern varieties.
83 Kochupillai,
Promoting sustainable innovations in plant varieties
, 5, p. 52, supra note 2.
84 Kingsbury,
Hybrid: the history and science of plant breeding
, 39-42
.
It is noteworthy, however, that the Convention on
Biological Diversity uses the term ‘variability’ in its definition of Biological Diversity. Article 2 of the CBD defines Biological
Diversity as “the variability among living organisms from all sources including,
inter alia
, terrestrial, marine and other aquatic
ecosystems and the ecological complexes of which they are part: this includes diversity within species, between species and of
ecosystems.”
85 Acquaah,
Principles of plant genetics and breeding
, 79.
86 Kim Kleinman, "Noel Kingsbury, Hybrid: The History and Science of Plant Breeding (Chicago and London: University of
Chicago Press, 2009), xv+ 493 pp., $35.00,"
Journal of the History of Biology
44, no. 1 (2011): 262.
87 Other stressful environments include high salinity or high temperatures: Sangam L Dwivedi et al., "Landrace germplasm for
improving yield and abiotic stress adaptation,"
Trends in plant science
21, no. 1 (2016). For example, adapted to water scarcity
in Sub Saharan conditions Pauline Chivenge et al., "The potential role of neglected and underutilised crop species as future
crops under water scarce conditions in Sub-Saharan Africa,"
International journal of environmental research and public health
12, no. 6 (2015).
88 Reza Mohammadi et al., "Adaptation patterns and yield stability of durum wheat landraces to highland cold rainfed areas of
Iran,"
Crop Science
54, no. 3 (2014).
89 P Annicchiarico et al., "Adaptation of landrace and variety germplasm and selection strategies for lucerne in the
Mediterranean basin,"
Field Crops Research
120, no. 2 (2011).
14
conditions compared to commercial cultivars.90 In unfavourable areas in Morocco, mainly landraces are
cultivated due to their better adaptability and better yields.91 Farmers planting a higher diversity of maize
in Mexico are better able to mitigate weather extremes by climate change.92 Hybrid seed material generates
higher yields in stable, favourable environments, while landraces outcompete in highly variable
environments, which are more likely in future due to climate change.93 As observed in a previous text,
… it is due to this genetic variability that landraces (in association with traditional farming
practices) are often found by empirical and scientific research to outperform modern
‘improved’ varieties in various environments, notably marginal environments.
94 Landraces are
therefore also crucial for long-term food security, especially in developing countries where a
large percentage of farmers cultivate crops in marginal environments where improved
varieties do not perform.
95
However, it is also this genetic variability inherent in landraces and farmers varieties that make them
heterogenous (rather than homogenous or “uniform”). Landraces and farmers’ varieties are, therefore,
unsuitable for protection by plant breeders’ rights, even when a landrace is significantly distinctive from
other landraces or farmers’ varieties.
C
Underlying assumptions of CBD and the Seed Treaty:
Seed-Soil Interactions, Nutrition and
Environmental Sustainability
Plant genetic materials co-evolve with their surrounding microorganisms (pathogenic and symbiotic),
forming what is known as the holobiont.96 Plant root secretions and associated soil microorganisms
together constitute the root microbiome. The soil surrounding the plant root, which is particularly rich in
beneficial microbiological activity, is called the rhizosphere.97 The more diverse the microbial population
in the rhizosphere, the better the symbiotic exchange between plants and microorganisms, supporting
nutrient exchange,98 resulting in higher nutrient content in the plant, vegetable or crop. 99 Intimate
associations between plant-root and soil microbes is also critical for the establishment and maintenance
90 María Isabel Martínez-Nieto et al., "Resilience capacity assessment of the traditional Lima Bean (Phaseolus lunatus L.)
landraces facing climate change,"
Agronomy
10, no. 6 (2020).
91 Benbrahim et al., "On-farm conservation of Zaer lentil landrace in context of climate change and improved varieties
competition," supra note 76.
92 Carolina Ureta et al., "Maize yield in Mexico under climate change,"
Agricultural Systems
177 (2020).
93 Rodriguez et al., "Genotype by environment interactions in barley (Hordeum vulgare L.): different responses of landraces,
recombinant inbred lines and varieties to Mediterranean environment," p.244. Supra note 62.
94 Villa et al., "Defining and identifying crop landraces," 374. Also see Kochupillai,
Promoting sustainable innovations in plant
varieties
, 5, p. 216, supra note 2, whose empirical research with farmers in Deobhog, Chattisgarh (Jan-Feb 2012) led to the finding
that the local mung bean landrace outperforms and is preferred by farmers in the region of Chattisgarh over the improved variety
provided by the government university,
inter alia
, because it does not need irrigation, fertilizers or pesticides and gives a
guaranteed yield (even if not a very high yield).
95 Villa et al., "Defining and identifying crop landraces," 374 who say that landrace conservation is therefore closely associated with
food security.
96 Holobiont describes a biological entity composed of the sum of the composed host and associated microorganisms (they may
be mutualistic or parasitic). A holobiont is able to function autonomically. Eugene Rosenberg and Ilana Zilber-Rosenberg,
"The hologenome concept of evolution after 10 years,"
Microbiome
6, no. 1 (2018). The human holobiont consists of 53,000
genomes (of which only 20,000 are human genomes), see Curtis Huttenhower et al., "Structure, function and diversity of the
healthy human microbiome,"
nature
486, no. 7402 (2012).
97 Roeland L Berendsen, Corné MJ Pieterse, and Peter AHM Bakker, "The rhizosphere microbiome and plant health,"
Trends
in plant science
17, no. 8 (2012).
98 Marcel GA Van Der Heijden et al., "A widespread plant-fungal-bacterial symbiosis promotes plant biodiversity, plant
nutrition and seedling recruitment,"
The ISME journal
10, no. 2 (2016); Paola Bonfante and Iulia-Andra Anca, "Plants,
mycorrhizal fungi, and bacteria: a network of interactions,"
Annual review of microbiology
63 (2009).
99 Wendy Sangabriel-Conde et al., "Native maize landraces from Los Tuxtlas, Mexico show varying mycorrhizal dependency for
P uptake,"
Biology and fertility of soils
50, no. 2 (2014).
15
of stable relations between plant hosts and rhizobial microorgansims (host-microbial homeostasis),100
which is crucial for plant disease suppression.101
Interestingly, it is not just the quality of the soil that impacts seed and crops, but the plant genotype, in
turn, influences the root microbiome102 and consequently, plant-microbe interactions. Evolutionary
changes in host genotypes influence the bacterial selection process, determining richness, diversity, and
relative abundances of taxa.103 For example, for barley, the community composition at the root-soil
interface significantly declined from wild genetic resources to landraces to modern plant varieties.104
Plants also co-evolve with microorganisms that are hosted in their cell walls (endophytes).105 These
microorganisms offer various advantages to host plants such as the production of phytohormones106 or the
solubilization of nutrients such as phosphorus.107 These microorganisms are also crucial for the
germination of seeds108 and for fighting seed-borne diseases.109 While a part of these microorganisms
(bacteria) are vertically transmitted from parent to progeny seedlings110 (around 45%)111 other parts are
horizontally transmitted, impacted by environmental characteristics such as the soil microbiome,112
climatic conditions and human practices. 113
Similarly, research comparing older landraces of wheat,114 breadfruit,115 soybeans116 and maize117 with more
modern varieties found the older ancestors benefiting more from symbiotic associations with mycorrhizal
100 M Amine Hassani, Paloma Durán, and Stéphane Hacquard, "Microbial interactions within the plant holobiont,"
Microbiome
6, no. 1 (2018). Homeostasis is the state of steady self-regulating processes that allow steady internal conditions maintained for
survival (e.g. body temperature, oxygen content in the blood). The stability gained is a dynamic equilibrium.
101 Alberto Pascale et al., "Modulation of the root microbiome by plant molecules: the basis for targeted disease suppression and
plant growth promotion,"
Frontiers in Plant Science
10 (2020).
102 Marie‐Lara Bouffaud et al., "Root microbiome relates to plant host evolution in maize and other P oaceae,"
Environmental
microbiology
16, no. 9 (2014); Derek S Lundberg et al., "Defining the core Arabidopsis thaliana root microbiome,"
Nature
488, no. 7409 (2012); Manuel Aira et al., "Plant genotype strongly modifies the structure and growth of maize rhizosphere
microbial communities,"
Soil Biology and Biochemistry
42, no. 12 (2010); Jason A Peiffer et al., "Diversity and heritability of
the maize rhizosphere microbiome under field conditions,"
Proceedings of the National Academy of Sciences
110, no. 16
(2013).
103 Bouffaud et al., "Root microbiome relates to plant host evolution in maize and other P oaceae," Supra note 102.
104 Davide Bulgarelli et al., "Structure and functions of the bacterial microbiota of plants,"
Annual review of plant biology
64
(2013).
105 Eric B Nelson, "Microbial dynamics and interactions in the spermosphere,"
Annu. Rev. Phytopathol.
42 (2004).
106 Phytohormones are plant hormones regulating plant metabolism and consequently plant growth and additionally, they play a
vital role in plant’s defence response mechanisms against stresses, see Dilfuza Egamberdieva et al., "Phytohormones and
beneficial microbes: essential components for plants to balance stress and fitness,"
Frontiers in microbiology
8 (2017).
107 Kusam Lata Rana et al., "Endophytic microbes from diverse wheat genotypes and their potential biotechnological
applications in plant growth promotion and nutrient uptake,"
Proceedings of the National Academy of Sciences, India Section
B: Biological Sciences
(2020).
108 Joanne C Chee-Sanford et al., "Do microorganisms influence seed-bank dynamics?,"
Weed Science
54, no. 3 (2006)
109 Ashley Shade, Marie-Agnès Jacques, and Matthieu Barret, "Ecological patterns of seed microbiome diversity, transmission,
and assembly,"
Current opinion in microbiology
37 (2017).
110 Kusam Lata Rana et al., "Biodiversity, phylogenetic profiling and mechanisms of colonization of seed microbiomes,"
Trends
of microbial biotechnology for sustainable agriculture and biomedicine systems: diversity and functional perspectives. Elsevier,
Amsterdam
(2020); Anderson Ferreira et al., "Diversity of endophytic bacteria from Eucalyptus species seeds and colonization
of seedlings by Pantoea agglomerans,"
FEMS microbiology letters
287, no. 1 (2008).
111 Pablo R Hardoim et al., "Dynamics of seed-borne rice endophytes on early plant growth stages,"
PloS one
7, no. 2 (2012)
112 Stephanie Klaedtke et al., "Terroir is a key driver of seed‐associated microbial assemblages,"
Environmental microbiology
18,
no. 6 (2016); Joseph Edwards et al., "Structure, variation, and assembly of the root-associated microbiomes of rice,"
Proceedings of the National Academy of Sciences
112, no. 8 (2015).
113 Klaedtke et al., "Terroir is a key driver of seed‐associated microbial assemblages," Supra note 112.
114 BAD Hetrick, GWT Wilson, and TC Todd, "Mycorrhizal response in wheat cultivars: relationship to phosphorus,"
Canadian Journal of Botany
74, no. 1 (1996).
115 Xiaoke Xing et al., "Mutualism breakdown in breadfruit domestication,"
Proceedings of the Royal Society B: Biological
Sciences
279, no. 1731 (2012).
116 E Toby Kiers, Mark G Hutton, and R Ford Denison, "Human selection and the relaxation of legume defences against
ineffective rhizobia," ibid.274, no. 1629 (2007).
117 Sangabriel-Conde et al., "Native maize landraces from Los Tuxtlas, Mexico show varying mycorrhizal dependency for P
uptake," supra note 99.
16
fungi (Mycorrhizal symbiosis).118 The mycorrhiza root colonization119 of landraces exceeded those of
modern hybrid cultivars by 149%, doubling sorghum yields, also correlating with higher mineral nutrients
in sorghum.120 Further, heirloom bean landraces have been found to contain higher nutrient contents than
modern varieties.121 Symbiotic associations also result in more resistant plants, particularly in low-fertility
soils:
For example, heirloom bean landraces from Spain adapt well to dry conditions122 and Sangabriel-Conde
et al. (2014) found native maize outcompeted hybrid variants in taking up symbiotic and direct
phosphorus.123 However, plant varieties react very individually.124 Due to mycorrhiza symbiosis, the
productivity and sensual quality of in-situ cultivated landraces can be addressed more efficiently and
inclusively by agricultural practices beneficial for arbuscular mycorrhiza fungi, such as omitting pesticide
usage, avoiding soil mechanisation or inoculating the plants with arbuscular mycorrhiza fungi.
Interestingly, landraces have been found to react more positively to the inoculation of arbuscular
mycorrhizal fungi than genetically modified hybrid maize, which responded negatively.125 This was
confirmed by Sudanese sorghum landraces inoculated with arbuscular mycorrhiza fungi, significantly
increasing net photosynthesis compared to non-mycorrhizal plants.126 Higher nutrient availability (e.g. as
a result of using mineral fertilizers) in soils results in less plant-microbial symbiosis.127 For example, in
nutrient-rich environments under the usage of mineral fertilizers, plants downregulate symbiosis,128 and
plants stop interacting with arbuscular mycorrhiza fungi when alternative strategies are available to extract
nutrients.129 Over the last centuries, this has been found to result in plants losing their ability to form
symbioses with beneficial fungi.130
In order to re-teach plants to form symbiotic ties with beneficial microorganisms, including bacteria and
fungi that help enhance yields (of indigenous heterogenous seeds) and nutritive value of crops, it is
essential to revive TEK based farming systems. In the next section, we look at one such TEK based
farming system, namely, “Natural Farming” that has rapidly gained popularity among small and
118 Mycorrhizal symbiosis are associations between arbuscular mycorrhizal fungi and land plants. While the fungi provide vital
mineral nutrients, plants return the favor by providing fixed carbon, see Leonie H Luginbuehl and Giles ED Oldroyd,
"Understanding the arbuscule at the heart of endomycorrhizal symbioses in plants,"
Current Biology
27, no. 17 (2017).
119 Mycorrhiza root colonization refers to fungi colonising the plant’s root microbiome. The symbiosis is happening through the
colonization of plant material with highly branched fungal structures (arbuscules) that are formed within the plant’s root. The
exchange of nutrients is vital for plants’ nutrient supply and also for defense mechanisms against various stress factors (abiotic
stress: high temperature, water scarcity, salinitiy; biotic stress: pathogens). Ibid.
120 Adam B Cobb et al., "The role of arbuscular mycorrhizal fungi in grain production and nutrition of sorghum genotypes:
enhancing sustainability through plant-microbial partnership,"
Agriculture, Ecosystems & Environment
233 (2016).
121 Tugce Celmeli et al., "The nutritional content of common bean (Phaseolus vulgaris L.) landraces in comparison to modern
varieties,"
Agronomy
8, no. 9 (2018).
122 PA Casquero et al., "Performance of common bean (Phaseolus vulgaris L.) landraces from Spain in the Atlantic and
Mediterranean environments,"
Genetic Resources and Crop Evolution
53, no. 5 (2006).
123 Sangabriel-Conde et al., "Native maize landraces from Los Tuxtlas, Mexico show varying mycorrhizal dependency for P
uptake," supra note 99.
124 For example, landraces of durum wheat created fewer symbionts with fungi in less fertile soil conditions: Walid Ellouze et
al., "Potential to breed for mycorrhizal association in durum wheat,"
Canadian journal of microbiology
62, no. 3 (2016).
However, no differences in symbionts of durum landraces and modern cultivars were found, Petronia Carillo et al.,
"Biostimulatory action of arbuscular mycorrhizal fungi enhances productivity, functional and sensory quality in ‘Piennolo del
Vesuvio’cherry tomato landraces,"
Agronomy
10, no. 6 (2020).
125 Diana Marcela Morales Londoño et al., "Landrace maize varieties differ from conventional and genetically modified hybrid
maize in response to inoculation with arbuscular mycorrhizal fungi,"
Mycorrhiza
29, no. 3 (2019).
126 Tilal Abdelhalim, Ramia Jannoura, and Rainer Georg Joergensen, "Arbuscular mycorrhizal dependency and phosphorus
responsiveness of released, landrace and wild Sudanese sorghum genotypes,"
Archives of Agronomy and Soil Science
(2019).
127 Robin van Velzen et al., "Comparative genomics of the nonlegume Parasponia reveals insights into evolution of nitrogen-
fixing rhizobium symbioses,"
Proceedings of the National Academy of Sciences
115, no. 20 (2018); JU Regus et al., "Nitrogen
deposition decreases the benefits of symbiosis in a native legume,"
Plant and soil
414, no. 1-2 (2017).
128 Luisa Lanfranco, Valentina Fiorilli, and Caroline Gutjahr, "Partner communication and role of nutrients in the arbuscular
mycorrhizal symbiosis,"
New Phytologist
220, no. 4 (2018).
129 Gijsbert DA Werner et al., "Symbiont switching and alternative resource acquisition strategies drive mutualism breakdown,"
Proceedings of the National Academy of Sciences
115, no. 20 (2018).
130 Maximilian Griesmann et al., "Phylogenomics reveals multiple losses of nitrogen-fixing root nodule symbiosis,"
Science
361,
no. 6398 (2018).
17
subsistence farmers in India, increasing their profits and yields, while supporting conservation and
improvement of agrobiodiversity, in situ.
IV Traditional Ecological Knowledge and Agrobiodiversity: Lessons from the “Natural Farming”
movement in India
A Traditional ecological knowledge and agrobiodiversity
Traditional Ecological Knowledge (TEK) has been defined as a “cumulative body of knowledge, practices,
and beliefs, evolving by adaptive processes and handed down through generations by cultural
transmission, about the relationship of living beings (including humans) with one another and with their
environment”.131 In TEK-based farming systems, plant genetic material and human knowledge co-evolve
in close adaptation to climatic and cultural changes. This essentially means that various TEK-based
farming systems have emerged independently across various parts of the globe.132 Nonetheless, TEK
systems do follow certain basic principles, giving significant importance to the autonomy of farmers133
(local inputs only, on farm nutrient re-cycling, saving seeds)134 and their knowledge, which is verified season
after season.135 Since TEK based farming systems pre-suppose and preserve the functioning of self-
sustaining ecosystems, they are also defined as agro-ecological farming systems.136 Unlike conventional
farming systems that rely heavily on uniformity and stability, diversity (in seeds, crops, soil microbes etc.)
is the lifeblood of agro-ecological and TEK-based farming systems.137
Locally selecting, multiplying, saving,138 improving and exchanging seeds with desirable traits such as stress-
resilience, hardiness, taste and yield139 has yielded an astounding heterogeneity of planting materials that
are genetically non-uniform, variable and diverse.140 Such planting materials are characterized by a
particularly high within-variety diversity (intra-varietal genetic diversity).141 They adapt year by year to local
131 Fikret Berkes, "Traditional ecological knowledge in perspective,"
Traditional ecological knowledge: Concepts and cases
1
(1993): p. 3.
132 Dunja Mijatović et al., "The role of agricultural biodiversity in strengthening resilience to climate change: towards an
analytical framework,"
International journal of agricultural sustainability
11, no. 2 (2013).
133 Peter M Rosset and Maria Elena Martínez-Torres, "Rural social movements and agroecology: context, theory, and process,"
Ecology and society
17, no. 3 (2012).
134 TEK based farming systems are highly dependent on natural resources, which requires the protection of such resources. For
example, deep rooting trees are planted to facilitate and regulate nutrient and water supply, see Henk Verhoog et al., "The role
of the concept of the natural (naturalness) in organic farming,"
Journal of agricultural and environmental ethics
16, no. 1
(2003): p. 36; Sanjay Chadha, JP Saini, and YS Paul, "Vedic Krishi: Sustainable livelihood option for small and marginal
farmers,"
NISCAIR Publications
(2012), http://nopr.niscair.res.in/handle/123456789/14389 (last accessed 06 June 2021);
Thierry Bonaudo et al., "Agroecological principles for the redesign of integrated crop–livestock systems,"
European Journal of
Agronomy
57 (2014), p. 49.
135 Fikret Berkes and Nancy J Turner, "Knowledge, learning and the evolution of conservation practice for social-ecological
system resilience,"
Human ecology
34, no. 4 (2006).
136 Charles Francis et al., "Agroecology: The ecology of food systems,"
Journal of sustainable agriculture
22, no. 3 (2003).
137 For example, Scandinavian and Japanese TEK farming following a mosaic landscape, see Miguel A Altieri and Parviz
Koohafkan, "Globally Important Ingenious Agricultural Heritage Systems (GIAHS): extent, significance, and implications for
development" (paper presented at the Proceedings of the Second International Workshop and Steering Committee Meeting
for the Globally Important Agricultural Heritage Systems (GIAHS) Project. FAO, Rome, Italy, 2004), p. 2.; Björn E Berglund
et al., "Traditional farming landscapes for sustainable living in Scandinavia and Japan: Global revival through the Satoyama
Initiative,"
Ambio
43, no. 5 (2014): 575 or also Traditional Mediterranean Polycultural Landscape, see Giuseppe Barbera and
Sebastiano Cullotta, "The traditional mediterranean polycultural landscape as cultural heritage: Its origin and historical
importance, its Agro-Silvo-Pastoral complexity and the necessity for its identification and inventory," in
Biocultural diversity in
Europe
(Springer, 2016), p. 22-24.
138 In seed saving, seeds are harvested to plant them in the proceeding growing season(s).
139 Kristin Ohlson,
The soil will save us: How scientists, farmers, and foodies are healing the soil to save the planet
(Rodale
Books, 2014); Peter H Thrall et al., "Evolution in agriculture: the application of evolutionary approaches to the management of
biotic interactions in agro‐ecosystems,"
Evolutionary Applications
4, no. 2 (2011).
140 J Cebolla-Cornejo, S Soler, and F Nuez, "Genetic erosion of traditional varieties of vegetable crops in Europe: tomato
cultivation in Valencia (Spain) as a case study,"
International Journal of Plant Production
1, no. 2 (2012).
141 Mathieu Thomas et al., "On‐farm dynamic management of genetic diversity: the impact of seed diffusions and seed saving
practices on a population‐variety of bread wheat,"
Evolutionary applications
5, no. 8 (2012).
18
climatic conditions and soil properties. Saved (heterogenous) seeds and high in-situ biodiversity,
therefore, lead to more robust plants.142
Apart from more diverse plant genetic material, agro-ecological practices that diversify in-soil living
organisms contribute to more stable ecosystems.143 The more diverse the in-soil living organisms, the better
functioning are ecosystem services such as the cycling of vital nutrients for plant growth,144 regulation of
the water supply and food webs controlling pests.145 Together, seed and soil biodiversity constitute the
backbone of TEK based farming systems. In the next sub-section, we explore this in the context of the
“Natural Farming” movement in India.
B TEK and the ‘Natural Farming’ Movement in India
Natural Farming is an agro-ecological farming practice based on TEK of India.146 Like most TEK based
farming systems, Natural Farming (NF) considers seed diversity and healthy soil as fundamental
prerequisites for efficient and sustainable crop cultivation.147 Over the last decade, NF methods in India
have rapidly gained popularity and momentum due to their positive impact on overall farm resilience,
particularly by rehabilitating degraded soils148 and increasing farmer profits.
As an aftermath of the Green Revolution in India, in the late 20th century, vast soil resources were found
to have been significantly degraded from the intensive usage of pesticides, mineral fertilizers and soil
mechanization.149 NF practices support the ecological recovery of soil functions by using farming practices
that revive, enhance and protect soil biodiversity.150 Biostimulant preparations151 made by farmers using
local materials and agricultural waste, enhance performance of indigenous, heterogenous seeds by
improving seed germination, soil properties, etc.152 Healthy soils allow farmers to cut dependencies on
142 Moreira et al. (2006), 3.
143 While the functioning of ecosystems increases with the diversity of organisms, after a certain diversity, no additional functions
are provided. However, the stability of the ecosystem increases constantly with increasing diversity, see Allan Konopka, "What
is microbial community ecology?,"
The ISME journal
3, no. 11 (2009).
144 Tsipe Aavik and Aveliina Helm, "Restoration of plant species and genetic diversity depends on landscape‐scale dispersal,"
Restoration Ecology
26 (2018).
145 Cameron Wagg et al., "Soil biodiversity and soil community composition determine ecosystem multifunctionality,"
Proceedings of the National Academy of Sciences
111, no. 14 (2014).
146 Several practices in Natural Farming (that are still used in the present day) have been documented in the ancient Vedic texts
of India dating back to 3000 BC – 1000 BC, Vedic- (Rigveda, Atharvaveda) and Ayurvedic texts (Charaka Samhita, Sushruta
Samhita): N Srikanth, Devesh Tewari, and A Mangal, "The science of plant life (vriksha ayurveda) in archaic literature: an
insight on botanical, agricultural and horticultural aspects of ancient India,"
World J. Pharm. Pharmacol. Sci
4, no. 6 (2016).
147 Jianli Liao et al., "Natural farming improves soil quality and alters microbial diversity in a cabbage field in japan,"
Sustainability
11, no. 11 (2019); Hoon Park and Michael W DuPonte, "How to cultivate indigenous microorganisms," (2008).
148 Jo Smith et al., "Potential yield challenges to scale-up of zero budget natural farming,"
Nature Sustainability
(2020/01/20
2020), https://doi.org/10.1038/s41893-019-0469-x, https://doi.org/10.1038/s41893-019-0469-x (last accessed 06 June 2021).
149 Raj Patel, "The long green revolution,"
The Journal of Peasant Studies
40, no. 1 (2013).
150 Such practices include: (i) the usage of fewer pesticides and mineral fertilizers (Klaus Birkhofer et al., "Long-term organic
farming fosters below and aboveground biota: Implications for soil quality, biological control and productivity,"
Soil Biology
and Biochemistry
40, no. 9 (2008); Yi Yang et al., "Soil carbon sequestration accelerated by restoration of grassland
biodiversity,"
Nature communications
10, no. 1 (2019); Martin Hartmann et al., "Distinct soil microbial diversity under long-
term organic and conventional farming,"
The ISME journal
9, no. 5 (2015)); (ii) avoiding tillage (María Jesús I Briones and
Olaf Schmidt, "Conventional tillage decreases the abundance and biomass of earthworms and alters their community structure
in a global meta‐analysis,"
Global Change Biology
23, no. 10 (2017)) or (iii) by providing high-quality sources of nutrients to soil
organisms, see Sören Thiele-Bruhn et al., "Linking soil biodiversity and agricultural soil management,"
Current Opinion in
Environmental Sustainability
4, no. 5 (2012).
151 Biostimulants are any substance or microorganisms applied to plants to enhance the efficiency of their nutrient uptake. By
enhancing the number and diversity of microorganisms, plant growth and stress resilience is improved, see Patrick du Jardin,
"Plant biostimulants: definition, concept, main categories and regulation,"
Scientia Horticulturae
196 (2015).
152 MS Nemagoudar et al., "Isolation and characterization of microflora in beejamrutha,"
Karnataka Journal of Agricultural
Sciences
27, no. 2 (2014); MN Sreenivasa, Nagaraj Naik, and SN Bhat, "Beejamrutha: A source for beneficial bacteria,"
Karnataka Journal of Agricultural Sciences
22, no. 5 (2010); RJ Patel et al., "Growth of mango (Mangifera indica L.) rootstocks
as influenced by pre-sowing treatments,"
Journal of Applied and Natural Science
9, no. 1 (2017): 585.
19
expensive inputs (e.g. mineral fertilizers, seeds and pesticides),153 thereby reducing costs and increasing
farmer-profits. This inspired the name ‘Zero Budget Natural Farming’ (ZBNF).154
Due to its success, NF practices have spread rapidly throughout India, and is recognized as the “largest
‘experiment’ in agro-ecology in the world”.155 The Food and Agricultural Organization of the United
Nation has defined ZBNF simultaneously as a set of farming methods and as a grassroots peasant
movement.156 According to recent news reports, NF has been adopted by several Indian States such as
Andhra Pradesh, Himachal Pradesh, Gujarat, Haryana, Karnataka and Kerala, with Andhra Pradesh
implementing its NF program at a mass scale. According to the Andhra Pradesh government, as of March
2020, 620,000 farmers (10.5 per cent of all farmers) were enrolled in the programme.157 Civil society and
NGO-led NF movements have also spread to states such as Karnataka, Tamil Nadu and Maharashtra,
where more than one hundred thousand farmers have been estimated to follow natural farming practices.
Himachal Pradesh aims to convert the entire state to natural farming by 2022.158
Several non-governmental organizations are also actively engaged in imparting education in NF under the
government’s Paramparagat Krishi Vikas Yojna (PKVY) (which can be translated as ‘scheme for the
promotion of traditional agriculture’).159 In March 2020, the government declared a new sub-mission to
specifically promote the adoption of Indian Natural Farming under the name ‘Bhartiya Prakritik Krishi
Padhati’ (BPKP) (which can be translated as “Indian Natural Farming Method”).160 PKVY and BPKP
are sub-components of India’s Soil Health Management scheme under the National Mission of
Sustainable Agriculture and “aims to develop sustainable models of organic farming through a mix of
traditional wisdom and modern science.”
Although research on the impact of NF on farm yields has not been consistent across states, the overall
success and rising popularity of NF results from a combination of factors, including rising farmer profits,
reduced costs, improved soil health and improved personal health of farmer families that have adopted
NF in recent years.161 Proponents of NF also emphasize its ability to revive and improve local
153 SR Devarinti, "Natural farming: eco-friendly and sustainable?,"
Agrotechnology
5, no. 2 (2016).
154 Ashlesha Khadse et al., "Taking agroecology to scale: The zero budget natural farming peasant movement in Karnataka,
India,"
The Journal of Peasant Studies
45, no. 1 (2018).
155 Smith et al., "Potential yield challenges to scale-up of zero budget natural farming," supra note 148.
156 Food and Agriculture Organization of the United Nations, "Zero Budget Natural Farming in India," (2016).
http://www.fao.org/3/a-bl990e.pdf (last accessed 06 June 2021).
157 Vineet Kumar, " Indian states step up natural farming adoption ", 2020,
https://www.downtoearth.org.in/blog/agriculture/indian-states-step-up-natural-farming-adoption-73281(last accessed 01 June
2021).
158 Ibid.
159 Since 2016, NGOs such as the Sri Sri Institute for Agricultural Sciences and Technology (SSIAST) have trained over 4000
farmers in Natural Farming in Andhra Pradesh alone. See Internation Business Times, "Heartwarming success story of how the
AOL helped small farmers make big profits in drought-hit Kurnool,"
Internation Business Times,
2017,
https://www.ibtimes.co.in/heartwarming-success-story-how-aol-helped-small-farmers-make-big-profits-drought-hit-kurnool-
754817 The NGO claims to have trained 2.5 million farmers in NF techniques across India. See https://www.artofliving.org/in-
en/projects/natural-farming (last accessed 01 June 2021).
160 https://niti.gov.in/natural-farming-niti-initiative (last accessed 01 June 2021).
161 Interviews with Indian farmers in Andhra Pradesh and Chattisgarh (Februrary-March, 2021) who have adopted NF within
the last decade revealed a diversity of reasons for moving away from conventional to Natural Farming. According to Mr. Yash
Mishra, Khajri Farms, Chattisgarh, since the adoption of NF, the soil of his “model” farm has become much more fertile and
gives excellent yields, including for indigenous and heterogenous seeds of ancient rice, wheat, millet and pulses. (Online
interview with Mr. Yash Mishra, February and March 2021). See also, University of Leeds, "Model Farms and Farmers in
Seva," 2019, https://idip.leeds.ac.uk/2019/07/25/model-farms-and-farmers-in-seva/ (accessed 01 June 2021). Yash Mishra
shares that at the heart of his work lies the urge to revive (traditional) seed systems. Similarly, Mahboob Basha, an award-
winning red chilli farmer in Andhra Pradesh attributes his success to his decision to migrate to Sri Sri Natural Farming in 2016.
According to Basha and several farmers in the region who have been trained by local Non-Governmental Organizations
(NGOs) such as the Sri Sri Institute for Agricultural Sciences and Technology (SSIAST) and the Art of Living Foundation
(AOL), NF ensures that they are able to get a good yield even in severe drought conditions where conventional farming fails.
See Internation Business Times, "Heartwarming success story of how the AOL helped small farmers make big profits in
drought-hit Kurnool," https://www.ibtimes.co.in/heartwarming-success-story-how-aol-helped-small-farmers-make-big-profits-
drought-hit-kurnool-754817 (last accessed 01 June 2021). Other farmers interviewed said that their own health, as well as the
health of the entire family, has improved since they migrated to NF. “We are now happy to bring our children to the fields and
20
agrobiodiversity in the form of indigenous seeds and soil microbial diversity, as well as helping revive
indigenous cattle breeds, preventing their extinction. It is interesting that means of accomplishing these
very ends are currently also being sought by the EU, where 29% of the agricultural land resides in marginal
environments.
C
Seed biodiversity in TEK and Natural Farming
The cultivation of local varieties of (indigenous, heterogeneous) seeds lies at the heart of Natural Farming,
serving as the prerequisite for food security and sustainability in terms of profits, environment and socio-
cultural aspects.162 Such varieties are adapted to their environment over an extended period and often
display high resilience to biotic and abiotic stresses present in that environment.163 The high adaptability
and hardiness exhibited by landrace varieties allow for low cost and low input farming.164 Also, saving
seeds cuts dependencies and high costs associated with purchasing seeds from the market season after
season. The social practice of seed sharing and conservation enhances the diversification of seed material,
inter alia, in the form of in-situ agrobiodiversity conservation165 as well as local farmer-selection based
improvements over time. Needless to say, agroecological farming systems that rely on seed exchange, also
help support and maintain local and ancient cultures of sharing.
In addition to conserving knowledge on diversities and traits, Natural Farming in India also includes
knowledge of how to enhance the germination rate of indigenous seeds for better plant vitality and stress
resistance.166 A well-known example of such a formulation is a seed-stimulant preparation deriving from
Indian TEK texts, called Angara preparation or
Beejamrut
(or Bheej-Amrut).167 It is typically composed
of cow manure, water, limestone and local soil (however, recipes vary locally).168 Acting as a plant growth
stimulant, farmers report negligible seed mortality rate, improvement in seedling length and vigour, and
let them play there while we do our daily farm chores. Earlier, we were not happy to do this because of the chemicals.”
Interview with farmers in Andhra Pradesh, Kurnool region, February, 2021.
162 Alexander Wezel et al., "Agroecology in Europe: Research, education, collective action networks, and alternative food
systems,"
Sustainability
10, no. 4 (2018); Sejabaledi Agnes Rankoana, "The Use of Indigenous Knowledge in Subsistence
Farming: Implications for Sustainable Agricultural Production in Dikgale Community in Limpopo Province, South Africa,"
Toward a Sustainable Agriculture: Farming Practices and Water Use
(2017).
163 Fabien Girard and Christine Frison,
The commons, plant breeding and agricultural research: challenges for food security
and agrobiodiversity
(Routledge, 2018); Samuel T Turvey, Jessica V Bryant, and Katherine A McClune, "Differential loss of
components of traditional ecological knowledge following a primate extinction event,"
Royal Society open science
5, no. 6
(2018)
164 For example, nutrients are provided by microorganisms as an ecosystem service, see Kevin M Murphy et al., "Evidence of
varietal adaptation to organic farming systems,"
Field Crops Research
102, no. 3 (2007).
165 Oliver T Coomes et al., "Farmer seed networks make a limited contribution to agriculture? Four common misconceptions,"
Food Policy
56 (2015); Marco Pautasso et al., "Seed exchange networks for agrobiodiversity conservation. A review,"
Agronomy
for sustainable development
33, no. 1 (2013). John Briggs and Boyson Moyo, "The Resilience of Indigenous Knowledge in
Small-scale African Agriculture: Key Drivers,"
Scottish Geographical Journal
128, no. 1 (2012/03/01 2012): 66,
https://doi.org/10.1080/14702541.2012.694703, https://doi.org/10.1080/14702541.2012.694703 (last accessed 06 June 2021);
Girard and Frison,
The commons, plant breeding and agricultural research: challenges for food security and agrobiodiversity,
supra note 163
.
Roy Ellen and Simon Platten, "The social life of seeds: the role of networks of relationships in the dispersal
and cultural selection of plant germplasm,"
Journal of the Royal Anthropological Institute
17, no. 3 (2011). TEK-based farming
systems visualize human beings (and animals, such as cattle) as part of nature and consequently aim for the co-existence and co-
evolution of entities that benefit from each other through ecosystem services (synergies within the ecosystem).165 These systems
evolve in harmony with local socio-cultural realities and in accordance with local site conditions. They are deeply embedded in
local (often unique) cultural, natural, social and economic practices and circumstances.
166 Burra Shyamsunder, "Study of Traditional Organic Preparation Beejamrita for Seed Treatment,"
International Journal of
Modern Agriculture
10, no. 2 (2021).
167 Chadha, Saini, and Paul, "Vedic Krishi: Sustainable livelihood option for small and marginal farmers," p. 485, supra note
134.
168 N Devakumar et al., "Microbial analytical studies of traditional organic preparations beejamrutha and jeevamrutha,"
Building
organic bridges
2 (2014).
21
enhanced seed germination rates.169 Bheej-Amrut has been found to contain N-fixing, P-solubilizing
bacteria, actinomycetes and fungi.170
In recent interviews, farmers confirmed the effectiveness of Beej-amrut. 171 Migrating to NF also gradually
reduces farmer-dependence on market purchased “uniform” and “stable” seeds, as farmers rely on (and
prefer) indigenous heterogenous seeds that can be saved and exchanged without cost and give their best
yields in chemical-free NF soils.171
C
Soil biodiversity in TEK and Natural Farming
Revival of seed biodiversity in TEK systems is dependent on the diversity of soil organisms, which are
protected and promoted by a plethora of farming practices.172 For example, applying plant residues as
mulch provides a nutritious carbon source for soil organisms.173 Particularly under dry conditions,
mulching can significantly increase grain yield174 and reduce the amount of water/irrigation needed for
crop survival.175 Similarly, low tillage, a practice common in TEK based farming systems, is a practice that
is gaining attention in the context of sustainable farming. Its efficacy has been shown in several studies.176
Preparations that act like microbial plant biostimulants and improve soil properties are also gaining
popularity among Indian farmers (especially those practising NF).
Most biostimulant formulations under NF are based on (cow) manure. These formulations transform
manure via fermentation into a potent biofertilizer that significantly enhances soil biodiversity177 such as
the mycorrhizal networks. Apart from cow manure, farmer-made biostimulants are based on local, site-
specific inputs such as sugar (e.g. ripe fruits), proteins (e.g. pea flour), minerals (such as mineral flour)
169 Nemagoudar et al., "Isolation and characterization of microflora in beejamrutha," supra note 152"; Sreenivasa, Naik, and
Bhat, "Beejamrutha: A source for beneficial bacteria," supra note 152; Patel et al., "Growth of mango (Mangifera indica L.)
rootstocks as influenced by pre-sowing treatments," 585, supra note 152.
170 Devakumar et al., "Microbial analytical studies of traditional organic preparations beejamrutha and jeevamrutha," supra note
168.
171 Interviews with farmers in Andhra Pradesh and Chattisgarh, Feb-March 2021. Interviews were also conducted with farmers
who received training in NF but have not so far (fully) migrated. The reasons for the hesitation include several practical matters
such as the non-availability of cow dung to make NF inputs on farm, the labor intensive nature of the work, lack of machines to
mechanize the making of NF inputs, and general inertia preventing farmers from moving away from conventional farming that
now seems more convenient in terms of fertilizers and pesticide use and application, as well as the availability of “minimum
support price” for production resulting from standard/uniform seeds of wheat, rice etc.
172 As for example, the case for the mycorrhizal fungal diversity, which determines plant biodiversity, ecosystem variability and
productivity, Marcel GA Van Der Heijden et al., "Mycorrhizal fungal diversity determines plant biodiversity, ecosystem
variability and productivity,"
Nature
396, no. 6706 (1998). Also, the microbiomes of endophytes living inside the internal
tissues of plants crucially contribute to nutrient cycles and thus to the growth and resilience of plants, see Lata Rana et al.
“Biodiversity, phylogenetic profiling and mechanisms of colonization of seed microbiomes,"
(2020), supra note 110, p. 99.
173 Else K Bünemann, GD Schwenke, and L Van Zwieten, "Impact of agricultural inputs on soil organisms—a review,"
Soil
Research
44, no. 4 (2006).
174 Xiao-Yan Li et al., "Incorporation of ridge and furrow method of rainfall harvesting with mulching for crop production under
semiarid conditions,"
Agricultural Water Management
50, no. 3 (2001).
175 Due to fewer water that evaporates, also the salinity level of the soils after irrigation can be lowered, see Maomao Hou,
Lvdan Zhu, and Qiu Jin, "Surface drainage and mulching drip-irrigated tomatoes reduces soil salinity and improves fruit yield,"
Plos one
11, no. 5 (2016).
176 Maike Krauss et al., "Enhanced soil quality with reduced tillage and solid manures in organic farming–a synthesis of 15 years,"
Scientific reports
10, no. 1 (2020); Lukman Nagaya Mulumba and Rattan Lal, "Mulching effects on selected soil physical
properties,"
Soil and Tillage Research
98, no. 1 (2008); KL Sharma et al., "Long term evaluation of reduced tillage and low cost
conjunctive nutrient management practices on productivity, sustainability, profitability and energy use efficiency in sorghum
(Sorghum bicolor (L.) Moench)-mung bean (Vigna radiata (L.) Wilczek) system in rainfed semi-arid Alfisol,"
Indian J. Dryland
Agric. Res. & Dev
30, no. 2 (2015).
177 Lukas Kilcher, "How organic agriculture contributes to sustainable development,"
Journal of Agricultural Research in the
Tropics and Subtropics, Supplement
89 (2007); Yue Xie et al., "Can living mulches in intercropping systems reduce the
potential nitrate leaching? Studies of organic cauliflower (Brassica oleracea L. var. botrytis) and leek (Allium porrum L.)
production across European conditions,"
Renewable Agriculture and Food Systems
32, no. 3 (2017); S Canali et al.,
"Enhancing multifunctional benefits of living mulch in organic vegetable cropping systems," ibid. ; Corrado Ciaccia et al., "Living
mulch for weed management in organic vegetable cropping systems under Mediterranean and North European conditions,"
ibid. ; Matthias Klaiss, Franziska Siegrist, and Gilles Weidmann, "Intercropping grain peas with barley," (2017) Those practices
are mostly applied in organic farming.
22
and local soil.178 The application of these formulations improves the soil’s physical, chemical, and
biological properties179 which are crucial to extract phosphorous from organic wastes.180 Natural Farming
biofertilizers have been shown to increase the availability of nutrients for sunflowers while decreasing the
concentration of contaminants, such as chloride and sulfate.181
In addition to Beejamrut, NF preparations include the biostimulants Jeev-Amrut and Ghanjeev-Amrut.182
Jeev-Amrut preparations have been found to significantly increased yields of sunflower seeds.183 Apart
from higher yields in onions, beans and rice, traditional preparations have also been found to effectively
control several plant pathogens.184
TEK farming systems are growing in popularity, partly because of the need to recover degraded soils, and
the wish for healthy, nutritious food. They are also growing out of social movements seeking to move
away from high-yield oriented, high-input, high-cost farming, which is also highly vulnerable. Recent
studies and developments are also helping better understand, interpret and improve upon such ancient
practices for modern application.185 These studies point to the importance of TEK based formulations in
promoting sustainable agriculture that also supports the cause of enhanced food and nutritional security.
Despite its recent boom in India, TEK systems are globally endangered.186 They are mostly used by
smallholder-farmers, who are outcompeted by intensive agricultural systems, or by the loss of habitats,
178 "Pflanzenstärkungsmittel - Definition," Bundesamt für Verbraucherschutz und Lebensmittelsicherheit, 2009,
https://www.bvl.bund.de/DE/04_Pflanzenschutzmittel/01_Aufgaben/04_Pflanzenstaerkungsmittel/psm_Pflanzenstaerkungsmitt
el_node.html (last accessed 06 June 2021).
179 Devarinti, "Natural farming: eco-friendly and sustainable?," supra note 153; Liao et al., "Natural farming improves soil quality
and alters microbial diversity in a cabbage field in japan," supra note 147; Suryatapa Das, Annalakshmi Chatterjee, and Tapan
Kumar Pal, "Organic farming in India: a vision towards a healthy nation,"
Food Quality and Safety
4, no. 2 (2020).
180 Ariel A Szogi, Matias B Vanotti, and Kyoung S Ro, "Methods for treatment of animal manures to reduce nutrient pollution
prior to soil application,"
Current Pollution Reports
1, no. 1 (2015).
181 Azka Iftikhar et al., "Effect of gibberellic acid on growth, photosynthesis and antioxidant defense system of wheat under zinc
oxide nanoparticle stress,"
Environmental Pollution
254 (2019).
182 These formulations are close cousins of a more ancient formulation known as
Panchagavya
(translated as “five products from
the cow”), composed of cow dung, cow urine, milk, curd and clarified butter. Panchagavya has been found to increase plant
yields comparably to mineral fertilizers. C Ananda, "Augmentation of Plant Growth Promoting Microorganisms Through
Fermentation of Cow Dung and Cow Urine" (University of Agricultural Sciences GKVK, Bangalore, 2011); Chadha, Saini, and
Paul, "Vedic Krishi: Sustainable livelihood option for small and marginal farmers," supra note 134. Further, some studies have
shown Jeev-amrut and Ghana Jeev-amrut to reduce soil microorganisms, while Panchagavya was found to increase them. (ibid.)
Seeds treated with Panchagavya resulted in an enhanced length of root and shoot, dry mass, leaf area, chlorophyll content, and
photosynthetic activity after 15 days of sowing. Reasons are most likely contributed to the high amount of Lactobacillus
bacteria, but also further effective microorganisms such as Saccharomyces, Streptomyces, and Rhodopseudomonas were found
in Panchagavya, see E Leo Daniel Amalraj et al., "Microbiological analysis of panchagavya, vermicompost, and FYM and their
effect on plant growth promotion of pigeon pea (Cajanus cajan L.) in India,"
Organic Agriculture
3, no. 1 (2013): 27.
183 GS Manjunatha et al., "Effect of farm yard manure treated with jeevamrutha on yield attributes, yield and economics of
sunflower (Helianthus annuus L.),"
Karnataka Journal of Agricultural Sciences
22, no. 1 (2009).
184 Chadha, Saini, and Paul, "Vedic Krishi: Sustainable livelihood option for small and marginal farmers," supra note 134. There
is significant current research on plant-microbe interaction and the soil microbiome that emphasize the promise of ‘microbe
powered’ sustainable agriculture. See Omri M Finkel et al., "Understanding and exploiting plant beneficial microbes,"
Current
Opinion in Plant Biology
38 (2017); Janet K Jansson and Kirsten S Hofmockel, "The soil microbiome—from metagenomics to
metaphenomics,"
Current opinion in microbiology
43 (2018); Gustavo Santoyo et al., "Plant growth-promoting bacterial
endophytes,"
Microbiological research
183 (2016).
185 Trent Brown, "Agrarian crisis in Punjab and ‘Natural Farming’as a response,"
South Asia: Journal of South Asian Studies
36,
no. 2 (2013); Daniel Münster, "Zero budget natural farming and bovine entanglements in South India,"
Rachel Carson Center
Perspectives
1 (2017); Khadse et al., "Taking agroecology to scale: The zero budget natural farming peasant movement in
Karnataka, India," supra note 154.
186 For example, in Greece and Spain, Erik Gómez-Baggethun, Esteve Corbera, and Victoria Reyes-García, "Traditional
ecological knowledge and global environmental change: research findings and policy implications,"
Ecology and society: a
journal of integrative science for resilience and sustainability
18, no. 4 (2013); Alpine regions in Austria, Elisabeth Johann,
"Traditional forest management under the influence of science and industry: the story of the alpine cultural landscapes,"
Forest
Ecology and Management
249, no. 1-2 (2007); in the UK, Ian D Rotherham, "Bio-cultural heritage and biodiversity: emerging
paradigms in conservation and planning,"
Biodiversity and conservation
24, no. 13 (2015); and in Portugal, Amélia Frazão-
Moreira, Ana Maria Carvalho, and Elisabete Martins, "Local ecological knowledge also ‘comes from books’: cultural change,
landscape transformation and conservation of biodiversity in two protected areas in Portugal,"
Anthropological Notebooks
, no.
15 (1) (2009)
23
altered lifestyles,187 negative attitudes towards the word ‘traditional’,188 and an introduction of new
(‘improved’) seed varieties that do not consistently yield result in marginal environments.189 Legal and
regulatory changes, together with major shifts in educational curriculums of universities and regional
agricultural extension officers, are urgently needed to help revive and maintain a diversity of TEK based
farming systems as possible and beneficial substitutes of conventional farming systems, particularly for
marginal environments.
IV Conclusions and Recommendations
Aano bhadra krtavo yantu vishwatah
190
(Let noble thoughts come to me from all directions/all parts of the world)
In this paper, we have seen how the UPOV definition of variety together with the insistence on uniformity
and stability as pre-requisites for acquisition of PBRs, are grounded in legal fiction, industrial/economic
expediencies and a narrow focus on mendelian genetics that de-emphasizes the influence of external
factors (soil health, climate change and biotic and abiotic stresses) on seed health, performance and
productivity. These “minimum standards” set up by UPOV (as well as European and national regulations
that follow UPOV), assume that seeds and plant varieties that meet the DUS criteria are also better
equipped to ensure high yields, meet climate challenges and enhance food security, while promoting
optimal innovation. Yet, emerging scientific understanding, as well as ground realities, particularly (but
not exclusively) in the context of marginal farm environments and rapid climate change suggest that
diversity and heterogeneity, rather than uniformity and homogeneity, are necessary for climate smart,
sustainable agriculture that protects seed and soil biodiversity, while enhancing yields and (small) farmer
incomes. Here, the presumptions underlying the CBD and the Seed Treaty that (agro)biodiversity and
benefit sharing is of fundamental relevance for environmental protection and sustainable agriculture, gain
fresh relevance.
Further, empirical research, as well as several recent case studies and farmer stories, suggests that not just
plant breeders but also small and subsistence farmers are innovators.191 Yet, under current IP protection
regimes, their innovations (whether it be in relation to the improvement of indigenous seeds or
improvements/local adaptation of TEK based farming systems) remain without recognition or reward,
further advancing the misconception that only plant breeders can innovate in the face of climate change.
The revival as well as governmental support of TEK based farming systems can encourage farmers
(especially small and subsistence farmers) to adopt sustainable farming systems that enhance
agrobiodiversity and also increase their profits. It can also help bring back dignity to the farming
profession, preventing further and rapid rural-urban migration.
History has been a witness to the dangers associated with discarding diversity and accepting only one line
of thinking, knowhow, or one source of (planting) materials as effective, efficient or correct. UPOV’s
NDUS criteria have undoubtedly served their purpose of promoting industrial and formal plant breeding
efforts. However, they have increasingly led to the rejection and discrediting of innovations emerging from
farmers’ fields and from agrobiodiversity protecting traditional knowledge and associated farming systems.
187 Eric M Bignal and David I McCracken, "The nature conservation value of European traditional farming systems,"
Environmental reviews
8, no. 3 (2000): 152.
188 The word was often connected to something obsolete and denoted in the 19th-century to describe simple, savage and static
characteristics, Fikret Berkes, Johan Colding, and Carl Folke, "Rediscovery of traditional ecological knowledge as adaptive
management,"
Ecological applications
10, no. 5 (2000): 5.
189 Catherine Odora Hoppers, "Old truths, new realities,"
Africa Insight
32, no. 1 (2002): 7.
190 Rig-Veda Samhita 1.89.and the Yajurveda Samhita available here: http://literature.awgp.org/book/yajurveda/v2.76 (last
accessed 01 June 2021).
191 Mrinalini Kochupillai, Radick, Gregory, Rao, Prabhakar, Kopytko, Nathalie, Köninger Julia, Matthiessen, Jasper,
"Sustainable Seed Innovation," White Paper for the Indian Government (2019) p. 10; "Farmers’ Stories," University of Leeds,
2019, https://idip.leeds.ac.uk/category/farmers-stories/; Clinton Beckford, David Barker, and Steve Bailey, "Adaptation,
innovation and domestic food production in Jamaica: Some examples of survival strategies of small‐scale farmers,"
Singapore
Journal of Tropical Geography
28, no. 3 (2007).
24
Scientific communities the world over can ill-afford to lose this rich source of time-tested, practical
knowledge. In keeping with the findings of modern science, international legal regulations need to
embrace, acknowledge, incentivize and reward the conservation and
in situ
improvement of knowledge
and materials from diverse sources, in order to ensure sustainable innovations in seeds and plant varieties
in the long run. A step in this direction can already be seen in India, and to a limited extent, also in
Europe. However, a lot more needs to be done at national as well as international levels.
A Trends in Europe
Contrary to what might be expected, the relevance of agrobiodiversity is high and growing not only in
countries of the Global South. The importance of agrobiodiversity contained, inter alia, in heterogenous,
non-uniform seeds is also increasingly acknowledged within Europe. In 2018, the EU adopted Regulation
(EU) 2018/848 of 30 May 2018 on organic production and labelling of organic products (published on
14 June 2018). This regulation, for the first time, permits and encourages, inter alia, the marketing for
organic agriculture of “plant reproductive material of organic heterogeneous material.192”
Such heterogeneous materials do not need to fulfil the registration and certification requirements under
various EU laws.193 The regulation clarifies that ‘heterogeneous materials’, unlike current proprietary
seeds, need not be uniform or stable, and notes based on “Research in the Union on plant reproductive
material that does not fulfil the variety definition... that there could be benefits of using such diverse
material… to reduce the spread of diseases, to improve resilience and to increase biodiversity.”
Accordingly, the regulation removes the legal bar on the marketing of “heterogeneous materials” and
encourages its sale for organic agriculture, thus clearing the way for the more expansive use of indigenous,
non-uniform seeds in agriculture. It is expected that once the delegated acts under the EU regulation are
formulated, they will support the creation of markets and marketplaces facilitating trade in heterogeneous
seeds, including by small farmers who have, thus far, been left out of the competition in seed markets.194
192 The regulation defines such materials under Article 3 as follows:
(18) ‘organic heterogeneous material’ means a plant grouping within a single botanical taxon of the lowest known rank which:
(a) presents common phenotypic characteristics;
(b) is characterised by a high level of genetic and phenotypic diversity between individual reproductive units, so that that
plant grouping is represented by the material as a whole, and not by a small number of units;
(c) is not a variety within the meaning of Article 5(2) of Council Regulation (EC) No 2100/94 (33);
(d) is not a mixture of varieties; and
(e) has been produced in accordance with this Regulation;
193 European Parliament and the Council, "On organic production and labelling of organic products and repealing Council
Regulation (EC),"
REGULATION (EU) 2018/848
(2018). https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32018R0848&from=EN; Hanspeter Schmidt, "Regulation (EU) 2018/848--The New EU
Organic Food Law,"
European Food & Feed Law Review
14, no. 1 (2019); Grégoire Turpin, "Decentralization and
liberalization of seeds and plant genetic resources regulations in Europe: a Danish case study" (Norwegian University of Life
Sciences, Ås, 2018); Alexandra Fuss et al., "How to implement the organic regulation to increase production & use of organic
seed. Policy recommendations for national and regional authorities," (2018); Judit Feher et al., "Diversified food system: Policy
to embedding crop genetic diversity in food value chains," (2019) The relevant recitals of the regulation state:
(36) Research in the Union on plant reproductive material that does not fulfil the variety definition as regards uniformity shows
that there could be benefits of using such diverse material, in particular with regard to organic production, for example, to reduce
the spread of diseases, to improve resilience and to increase biodiversity.
(37) Therefore, plant reproductive material that does not belong to a variety, but rather belongs to a plant grouping within a single
botanical taxon with a high level of genetic and phenotypic diversity between individual reproductive units, should be available
for use in organic production.
For that reason, operators should be allowed to market plant reproductive material of organic heterogeneous material without
having to comply with the requirements for registration and without having to comply with the certification categories of pre-
basic, basic and certified material or with the requirements for other categories set out in Council Directives 66/401/EEC (18),
66/402/EEC (19), 68/193/EEC (20), 98/56/EC (21), 2002/53/EC (22), 2002/54/EC (23), 2002/55/EC (24), 2002/56/EC (25),
2002/57/EC (26), 2008/72/EC (27) and 2008/90/EC (28), or in acts adopted pursuant to those Directives.
That marketing should take place following a notification to the responsible bodies referred to in those Directives and, after the
Commission has adopted harmonised requirements for such material, provided that it complies with those requirements.
194 Mrinalini Kochupillai, Radick, Gregory, "A wake-up call on proprietary seeds,"
The Hindu
(2019).
https://www.thehindu.com/opinion/op-ed/a-wake-up-call-on-proprietary-seeds/article27072442.ece; Wezel et al., "Agroecology
in Europe: Research, education, collective action networks, and alternative food systems," supra note 162.
25
Further, in the context of nutrient recycling and natural fertilizers for organic agriculture, the amended
recital 5a of the proposed EU regulation (which is a part of the EU Circular Economy Package) of “CE
marked fertilizers” is very relevant. The recital as proposed by the EU Parliament read: “(5a) To ensure
effective use of animal manure and on-farm compost, farmers should use those products which follow
the spirit of “responsible agriculture”, favoring local distribution channels, good agronomic and
environmental practice and in compliance with union environmental law,…. The preferential use of
fertilizers produced on-site and in neighboring agricultural undertakings should be encouraged.”195 Despite
the crucial role that this provision could have played in the revival of TEK based farming that teaches
farmers how to produce biostimulants and organic fertilizers on farm, the fertilizer regulation (EU
2019/1009) dropped the proposal.196
Nevertheless, recently, the importance of locally adopted seeds was put back on the agenda in the Farm
to Fork Strategy (2020), announcing that “the Commission will take measures to facilitate the registration
of seed varieties, including for organic farming, and to ensure easier market access for traditional and
locally-adapted varieties.”197
These legal and regulatory trends suggest a small but decisive step in the direction of diversifying the
marketplace for agricultural seeds. They are also in line with the emerging scientific understanding of the
urgent need to revive seed and soil microbial diversity for the sake of sustainable farming and food
security. However, based on past scientific understanding, the EU has, for decades, strictly regulated the
agricultural seeds and inputs sector outlawing active participation by farmers in the creation of agricultural
seeds and associated organic fertilizers produced on-farm. These regulations have resulted in the
development of specific practices and mindsets in agriculture, including among small and marginal
farmers. Changing laws at the high EU levels cannot lead immediately to a shift in local practices and
mindsets.
Following the principles of translational ethics and order ethics, in order to ensure compliance with
ethically appropriate behaviour (including environmentally sustainable behaviour), it is necessary to
ensure that legal, regulatory and governance structures incentivize the appropriate action. This can be
done, inter alia, by removing perverse incentives and ensuring necessary structural changes within existing
institutional frameworks (including by imparting proper education and information to farmers, rural
agricultural extension officers and University students) such that human choices can be naturally steered
towards accomplishing sustainable outcomes. Here, the EU can learn from the natural farming movement
in India, which was steered by NGOs and civil society groups to begin with but is now receiving support
from the central and state governments.
B Reviving agrobiodiversity and local food cultures
Membership trends in international conventions like UPOV (that govern the sphere of innovations in
agricultural seeds) suggest that countries of the Global North and those of the Global South are in general
disagreement as to the “minimum standard” of protection appropriate for local/national circumstances.
Yet the ground realities revealed by various empirical research studies suggest that the missing emphasis
on diversity at the international (regulatory) level have permeated into agricultural practice, even in
195 European Parliament, "Amendments adopted by the European Parliament on 24October 2017 on the proposal for a
regulation of the European Parliament and of the Council laying down rules on the making available on the market of CE
marked fertilising products and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009 (COM(2016)0157 –C8-
0123/2016 –2016/0084(COD))," (2017). https://www.europarl.europa.eu/doceo/document/TA-8-2017-0392_EN.pdf?redirectc
(accessed 30 May 2021).
196 Regulation EU 2019/1009, "Regulation (EU) 2019/1009 of the European Parliament and of the Council of 5 June 2019
laying down rules on the making available on the market of EU fertilising products and amending Regulations (EC) No
1069/2009 and (EC) No 1107/2009 and repealing Regulation (EC) No 2003/2003 (Text with EEA relevance)," ed. European
Parliament and the Council (2019). https://eur-lex.europa.eu/eli/reg/2019/1009/oj (accessed 06 June 2021).
197 European Union, "COM(2020) 381 final: COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE
COMMITTEE OF THE REGIONS: A Farm to Fork Strategy for a fair, healthy and environmentally-friendly food system,"
(2020). https://ec.europa.eu/info/sites/default/files/communication-annex-farm-fork-green-deal_en.pdf (accessed 06 June 2021).
26
countries that, on paper, do not comply with international “minimum standards”. This has led to a
colossal loss, not only of local agrobiodiversity, but also of socio-cultural diversity, including cultures and
traditions linked to food.
In this context, traditional agriculture, based on indigenous and heterogenous seeds, can also support the
revival and nourishment of “local agro-food system” (LAFs). A “local agro-food system” is a form of
production of local identity-based foods explicitly grounded in specific territorial dynamics of agriculture,
food and consumption networks.198 Conceptualized by Muchnik and Sautier (1998), the aim of LAFS is
to generate territorial dynamics, based on collective action, as a way of valorizing local food identity and
adding value to local resources, such as agricultural landscapes and ecosystems, local knowledge, local
social networks, food traditions and cultures, and native vegetable varieties and animal breeds.199 While
recognizing that much of the LAFS in Europe have been lost following the widespread adoption of
conventional (modern) agriculture,200 LAFS research currently focusses on studying remaining local agro-
food systems, particularly in Latin America and some regions of Europe, or on using it as a conceptual
approach for analyzing local agriculture and food-specific resources, as well as studying its close
connection with, and impact on, (agro)biodiversity.201 Needless to say, the COVID pandemic has also
highlighted the urgent need to ensure local self-sustainable agriculture. This is much more likely if we
revive and promote the use of locally adapted seeds that are robust in the face of sudden climatic changes,
as well as biotic stresses.
Given the vast and diverse agro-climatic zones, not just in Asia and Africa, but also in Europe,202 countries,
especially those that house the largest numbers of small and subsistence farmers, can benefit socio-
economically as well as environmentally by adopting farming systems and regulatory policies that
encourage the use in agriculture, of local biodiversity, and incentivize farmer level innovations with this
diversity.
C Re-thinking the NDUS test
In the light of mounting evidence in the form scientific research as well as on-farm experiences of small
and marginal farmers, it is necessary to re-think the NDUS test and identify approaches that can
incentivize and promote sustainable seed innovations not in isolation of environmental and soil
interactions, but in combination with sustainable farming practices. Such innovations can include seed
improvements that go hand in hand with innovative and sustainable soil management practices, manure
and farm waste (nutrient) recycling methods, and/or seed storage techniques that are cost-effective and
implementable in rural, low income and low-tech environments.
Beyond regulatory efforts, recent research based on extensive consultations with natural farmers in India
has also recommended the adoption of technological means such as blockchain or distributed ledger
198 Javier Sanz-Cañada, "Local Agro-Food Systems in America and Europe. Territorial anchorage and local governance of
identity-based foods,"
Culture & History Digital Journal
5, e001 (2016), https://doi.org/10.3989/chdj.2016.001 cited in Virginie
Amilien and Pascale Moity-Maïzi, "Controversy and sustainability for geographical indications and localized agro-food systems:
Thinking about a dynamic link,"
British Food Journal
(2019).
199 José Muchnik and Denis Sautier, "Systèmes agro-alimentaires localisés et construction de territoires,"
Proposition d’action
thématique programmée. CIRAD. Paris, France. 46p
(1998) cited in Javier Sanz-Canada (2016), Local Agro-Food Systems in
America and Europe. Territorial anchorage and local governance of identity-based foods, Culture and History Digital Journal
5(1).
200 Urban Emanuelsson,
The rural landscapes of Europe
(Formas, 2009); Mónica Hernández-Morcillo et al., "Traditional
ecological knowledge in Europe: status quo and insights for the environmental policy agenda,"
Environment: Science and
Policy for Sustainable Development
56, no. 1 (2014).
201 More recently, LAFS scholars have also investigated the impact of Geographical Indications labels and local governance
frameworks on the strength and survival of LAFS, and giving concrete recommendations on the means of re-creating “partially
abandoned local food identities by means of collective actions and public-private partnerships”. Bolette Bele, Ann
Norderhaug, and Hanne Sickel, "Localized agri-food systems and biodiversity,"
Agriculture
8, no. 2 (2018).
202 In the EU, 50% are small-holder farmers, cultivating less than 2 hectares operating less than 2.4% of land according to C
HLPE, "Investing in smallholder agriculture for food security,"
A report by the High Level Panel of Experts on Food Security
and Nutrition of the Committee on World Food Security
(2013). Particularly in Eastern Europe, land is highly fragmentated
Morten Hartvigsen, "Land reform and land fragmentation in Central and Eastern Europe,"
Land use policy
36 (2014).
27
technology (DLT) to support transparent sourcing of materials from farmer-innovators and assured
benefit sharing with the help of smart contracts.203 Further research and R&D funding, together with
concerted international efforts are needed to conduct more in-depth farmer interviews, build necessary
prototypes, and test the prototypes in real conditions to determine their suitability and sustainability.
This is not to say that uniform varieties and the NDUS test need to be done away with altogether.
However, it is necessary, as a first step, to recognize that the unidirectional focus under current intellectual
property laws and associated regulations, that incentivizes and protects innovations only by the formal
seed sector, or permit marketing only of certified uniform materials, is both inequitable and non-
sustainable. Diversity in regulatory approaches is necessary to ensure that all potential innovators in the
formal and informal sector can equitably participate in the landscape of seed innovations, while protecting
and enhancing agrobiodiversity for present and future generations.
203 Kochupillai, "Sustainable Seed Innovation," supra note 2; Kochupillai et al., "Incentivizing Research & Innovation with
Agrobiodiversity Conserved In Situ: Possibilities and Limitations of a Blockchain-Based Solution".
