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Fair and Equitable Benefit-Sharing in Agriculture

Nguyễn Gia Hào

Academic year: 2023

Chia sẻ "Fair and Equitable Benefit-Sharing in Agriculture"


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The concept of fair and equitable benefit sharing concerns the fair and equitable distribution of benefits derived from the use of genetic resources between providers (countries rich in biodiversity and genetic resources and indigenous peoples and local communities who hold similar knowledge) and users (companies and institutions that use such resources to develop marketable products). In the first chapter, I begin by exploring the emergence of the concept of fair and equitable benefit sharing in the context of emerging principles of agricultural biodiversity governance. I then trace the emergence of the concept of fair and equitable benefit sharing of importance to land governance in environmental treaties, including the CBD and the UN Convention to Combat Desertification (UNCCD).

A Commentary on the Nagoya Protocol on Access and Benefit-Sharing to the Convention on Biological Diversity.

1 Fair and equitable benefit- sharing in agricultural research and

However, as explored below, these exemptions are limited in the 1991 version of the UPOV Convention (UPOV 91). This led to the adoption of the International Enterprise on Plant Genetic Resources for Food and Agriculture, which is explored in the next section. Currently, the majority of material positively identified as belonging to the Treaty's MLS is housed by the CGIAR centres.

It also institutionalizes the sharing of benefits arising from the use of these resources, including monetary and non-monetary benefit sharing. Monetary benefit sharing refers to the return to the Treaty System of some of the benefits of the commercialization of products developed from material accessed through the MLS. Integration of Intellectual Property Rights and Development Policy, Report of the Intellectual Property Rights Commission.

2 Fair and equitable benefit- sharing in land governance

These elements relate to the nature of the source, the scope of the regulation and the definition of the beneficiaries. When it comes to the nature of the resource, land has traditionally been considered renewable but fixed in supply. Determining beneficiaries is much more complex and context-specific when it comes to sharing benefits from land use.

The emergence of the legal concept of farmers' rights is the result of equity, justice and conservation-related considerations. This lack of clarity is reflected in the (limited) literature and points to the value of the work undertaken by Louisa Parks (2019) as part of the BeneLex project and the need for ongoing research into household and local understanding of benefit sharing. This may be particularly important not only in relation to the implementation of farmers' rights, but also in the context of the global land rush, which is further addressed below.

However, practice shows the limitations of the concept of benefit sharing, even when applying a broad construction as above. This is reflected in the provisions of the VGGT, which are examined below, and also in the UN Peasants Declaration. Movement (MST), one of the most active social movements in the region, known for its massive land occupations.

169, a report of the UN Committee on the Elimination of Racial Discrimination39 and the reports of the UN Special Rapporteur on the rights of indigenous peoples. In the previous analysis, I have mapped and assessed the emergence and applications of the concept of fair and equitable benefit-sharing in land management, with a particular focus on farmers' rights and on the management of public lands, including the case of large-scale agricultural investment. These movements have recently been a driving force behind the development of international law, most clearly reflected in the adoption of the UN Declaration on Peasants' Rights.

In addition, redistribution of land or agricultural reforms in accordance with the provisions of the VGGT and UN farmers.

3 Moving beyond fair and equitable benefit- sharing

According to the Treaty, mechanisms for non-monetary benefit sharing include information exchange, access to and transfer of technology, capacity building, as well as facilitated access to genetic resources in the MLS, which is recognized as a benefit in itself. Although these mechanisms are certainly economic in the sense that they involve financial and human resources, monetary benefit sharing strictly refers to the return of a portion of the profits resulting from the commercialization of products developed on the basis of materials obtained by the MLS. Exploring benefit-sharing applications provides an opportunity to more comprehensively map and assess international law relevant to sustainable agriculture.

Discussing their origins and rationale, legal basis and implementation challenges, I propose a broad construction of farmers' right to benefit sharing. In this context, fair and equitable sharing of benefits does not have a consistent normative content and legal scope across all international instruments relevant to sustainable agriculture. Although still linked to ideas of justice and solidarity with the vulnerable, benefit sharing in land management is sometimes formulated as a policy objective while others as a protection.

A key issue regarding the implementation of land use benefit sharing is its relationship with actual access to resources; the benefit to be shared is often the land itself or the right to use it. When it comes to managing public lands, the use of benefit-sharing considerations can be used to promote fair and equitable use of public lands. Benefit-sharing considerations have been conveyed in the form of safeguards in the case of large-scale agricultural investment, although questions remain regarding the relationship between benefit-sharing and land-use rights, particularly customary ones.

The legal architecture supporting the application of fair and equitable benefit sharing lies in environmental treaties and instruments related to human rights and agriculture. In this context, in the next chapter I explore a series of case studies that illustrate community-level understandings of benefit sharing.

4 Exploring grassroots initiatives from the seed to the landscape

The project of conservation and development of community plant genetic resources in Vietnam was one of the projects under Community Biodiversity. The Park is further responsible for maintaining access to the genetic material, including securing it for distribution and planting by Potato Park members and third parties. The parties further recognized the role of Potato Park in developing a community protocol, as explored below.

The process that led to the agreement was complex and illustrated the challenges that accompany endogenous benefit sharing. It also serves as a biocultural community protocol in the sense of the Nagoya Protocol, regarding the relationship of the Potato Park as a collective entity with outsiders seeking access to its genetic resources and traditional knowledge. The Potato Park Association has tasks related to the implementation of the agreement, including the sharing of benefits between the park's communities and the regulation of the park's collectives.

The involvement of the Potato Park in international processes of relevance to plant genetic resources and traditional knowledge is particularly impressive. The repatriation agreement with the CIP was the driving force behind the participatory process that led to the development of the agreement between the communities on the fair and equitable distribution of benefits. ANDES (2010) 'The local community of the potato park signs a new repatriation agreement with the international potato center', ANDES press release, available at: www.andes.

2003) 'The Second Enclosure Movement and the Construction of the Public Domain', Law and Contemporary Problems Seed Laws: Bottlencks and Opportunities for Participatory Plant Breeding', in O. Winge (reds), Farmers and Plant Breeding: Current Approaches and Perspectives. 2007) 'Inleiding: 'n Oorsig van die Knowledge Commons', in C.

5 Conclusions and a research agenda

The Benefit Sharing Fund has operated only on the basis of voluntary contributions from the donor country. In the second chapter I have explored the applications of fair and equitable benefit sharing in the field of land governance, a vital area of ​​law in the struggle for endogenous agricultural development, rarely studied in relation to the field of ABS for research and development. In accordance with the concept of fair and equitable sharing of benefits on the basis of research and development, as described above, this twin.

Unlike biodiversity-based research and development, where fair and equitable benefit-sharing is an established international law concept and policy objective, land management is still largely a matter of national law. After this exploration, I conclude that fair and equitable sharing of benefits lacks a consistent normative content and legal scope in all international instruments relevant to sustainable agriculture. However, questions remain about the relationship between benefit sharing and land use rights, especially customary rights.

Thus, benefit sharing can be used to reproduce injustices and impose dominant ideological, economic and developmental models. The overall analysis supports that the concept of fair and equitable benefit sharing has the potential to contribute to sustainable agriculture and rural livelihoods goals if it is broadly constructed to cover both the process for achieving it and the substantive outcome. In this sense, benefit sharing should be understood as integrative mechanisms for information exchange, technology transfer and capacity building, called non-monetary benefit sharing in the field of research and development, and mechanisms for transparency, participation and accountability in decision-making regarding land allocation and use.

In this context, seeking inspiration at a grassroots level, I have explored a series of case studies that illustrate a community-level understanding of benefit sharing. At this stage, the ethos of sharing, enshrined in the concept of fair and equitable sharing of benefits, is in direct contrast to a political and economic system that increasingly commodifies genetic and natural resources and knowledge.


Nagoya Protocol on Access and Benefit Sharing 2; objective 51; from public lands 101–110; in relation to farmers. Food and Agriculture Organization (FAO) 7; impact of CBD on 12; Land Journal 103; on the sovereign rights of nations over their plant genetic resources 12; Resolution 3/91, 12; Resolution 4/89, 72; Voluntary guide to the formulation of national seed policy 137. Management agreement with JIRCAS 38; negotiations with JIRCAS 35; as a non-profit research organization 31; patent applications 33, 42; on the patentability of genetic sequences 37; patents on breeding methods related to rice genes 3, 6; SPIKE gene example 33 International Treaty on Plant Genetics.

169, 150; as an autochthonous biocultural heritage area 148; indigenous peoples living in 149–150; intercommunity benefit sharing agreement 154; relations within the community 149; Law of indigenous communities and regional agrarian promotion in forests and lowland valleys Nagoya Protocol concerning 154; National System of Protected Areas 150; objectives of 150;. Quechua principles 149; repatriation agreement 151; representation to the Peruvian state 150; the right to share benefits 151; the right to self-determination 148; Sumac Causay 149; sustainable management of 149.

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