The new seed treaty called the International Treaty on Plant Genetic Resources for Food and Agriculture (IT-PGRFA) has now come into force after a decade of negotiations and procedural formalities but how far it can protect farmers' rights remains doubtful.

The treaty's objective is to ensure that the agricultural biodiversity of the crops nurtured by farmers over millennia is conserved and that there is equitable benefit sharing from its sustainable use. It is in harmony with the Convention on Biological Diversity (CBD) and covers all plant genetic resources relevant for food and agriculture.

The FAO Commission on Genetic Resources for Food and Agriculture had held seven-year long negotiations to finalize the treaty which was adopted on November 3, 2001 with only two countries abstaining - the USA and Japan.

It was to become a law when a total of 40 countries had ratified it plus 90 days. It took about three years and it was on March 31 this year that the 40th ratification, by the United Kingdom, was deposited at the FAO's office in Rome.

So, the treaty came into force on June 29 - 30 months after being adopted by the FAO Conference. To date 54 countries have ratified the treaty. Pakistan is among the signatories.

The treaty process has been facilitated by the FAO which recently discredited itself by publishing a biased report in favour of GM crops. A major challenge in the final phase of the negotiations was whether, and to what extent, monopoly tools such as intellectual property rights (IPR) should be allowed - a key demand of the developed countries. And, ultimately the IPRs were included in the treaty in an indirect manner despite strong objections by the developing countries.

The treaty is essentially a compromise - a bad compromise. There is no guarantee that the genetic resources will not be commercialized, nor is there any clarity on benefit-sharing being prevented from commercial use.

However, the treaty brings together several of the issues faced by the farmers and governments, stemming from the privatization and loss of genetic diversity. It seems that most of the issues will be dealt at the organizational level or by the dispute panel through the space the treaty provides in the days to come.

The compromise text that governments finally agreed on contains a very muddled paragraph on IPR. Although it looks as if it leaves room for an anti-IPR stance, the Article in question basically states that the seeds and other genetic materials governed by the treaty can be patented - as long as they are modified in some way.

Some NGOs have urged the Governing Body of the treaty to resolve the ambiguities in the clause on intellectual property rights (Article 12.3.d) in order to ensure that the seeds and genes covered by the treaty are kept in the public domain and that free access is not restricted by patents.

Numerous Asian governments such as India, Malaysia and the Philippines were very active in the negotiations on the text. But a few NGOs were involved in the discussions. The number of crops included in the list is 35 and that of forages 30.

There are fears that such a small list may be viewed as an exhaustive one for food relevant crops. To add more crops will require an amendment in the Annex 1 which is a difficult task.

The farmers' rights, as described in the text, include protection of the traditional knowledge relevant to plant genetic resources; to equitably participate in sharing the benefits arising from the utilization of the genetic resources; to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources; nothing in Article 9 shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seeds subject to national laws.

However, the Article 9 on farmers' rights is a weak statement and puts ultimate responsibility on national governments, without support of any international mechanism or enforcement procedure. Then, farmers' control over seeds is made subject to national legislation. In both cases, the corporate interests can manipulate to deprive farmers of their basic rights and also grab control over seeds.

The Article 12.3 (d) says that access to plant genetic resources from the Multilateral System is provided to the recipients on the condition, among others, that they "... shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources for food and agriculture or their genetic parts or components in the form received from the Multilateral System".

This is perhaps the most controversial Article in the treaty. It implies that the genetic material from the Multilateral System can be patented (or restrict access through IPRs) if they have been modified in some way.

The words "in the form received" suggest that the IPRs on modified parts and components of the listed crops and forages would be permitted. The serious implications of such a wording are further heightened by the fact that certain western countries allow even mere isolation of a gene from a plant, leave aside substantial modification.

The treaty does envisage commercialization of genetic resources in the context of benefit sharing but does not mention IPRs as the basis for benefit sharing, as the biotech industry would have liked. So, the industry does not support the treaty since, they say, the IPR provisions are ambiguous.

The treaty had raised much hopes about creating a strong and unambiguous international instrument bringing to a halt the further privatization of crop genetic resources and ushering in a complete safeguard of the rights of farmers. But it has obviously failed to do so. A lot has been left to future interpretation and debate once the governing body starts meeting.

So, the new treaty is hardly expected to play an instrumental role in promoting food security and sustainable management of biodiversity. The weak text agreed upon in November favours the food multinationals and enables them to exploit the ambiguities in it to illegally use genetic resources wherever possible.

The developing countries can still meet the challenge by turning the ambiguous space in the treaty into a tool that promotes food sovereignty and farmers' interests. But for that to happen, governments will have to make clear choices - the ones they avoided while finalizing the treaty.

It goes without saying that agricultural diversity that feeds the world was created through the free exchange of seeds by farmers within and between communities, countries and continents. This free exchange must continue. But the treaty is ambiguous on this point.

The text says that no IPRs may be claimed from the genetic resources covered by the treaty. But the UK, EU countries and others are insistent that the weasel words inserted into the text mean that they should have the right to privatize resources extracted from the common pool covered by the treaty, if these resources are modified and are no longer "in the form received".

Those developing countries which are eager to support the conservation efforts of their farmers will find themselves increasingly at war with corporate interests as they struggle to defend free access in the upcoming negotiations on a universal Material Transfer Agreement - the agreement that provides the rules of access to the common resources covered by the treaty.

The governing body, made up of all the countries that have ratified the treaty, will face great pressure from powerful rich countries seeking privatization of the resources taken from the common gene pool. And these same countries are the ones that should, in fact, be paying for the conservation programmes but, it seems, they will not do so unless their demands are accepted.

The future of agriculture depends on international cooperation and on the open exchange of the crops and their genes that farmers all over the world have developed and exchanged over 10,000 years. No country is sufficient in itself. All depend on crops and the genetic diversity within these crops from other countries and regions.

There are a number of issues that will require clarification by the governing body. These are:

1. Will the treaty allow new crop varieties or genes from food crops, if extracted, transformed or modified and included in new varieties, to be patented and have other intellectual property rights claims? If permitted this would facilitate removal of these vital genetic resources from the public domain. The spread of patented genes in the environment would undermine farmers' rights.

2. Will the Material Transfer Agreement (MTA) that has to be developed be equitable and protect crop genetic resources from privatization?

3. Will the treaty be recognized as the competent authority to deal with plant genetic resources for food and agriculture by the World Trade Organisation and especially its Agreement on Trade Related aspects of Intellectual Property Rights (TRIPs) with respect to these resources?

4. Will the treaty provide benefits and funding commensurate with the contribution that farmers have made over past centuries to the development of the diversity of crops?

5. Will the treaty's governing body insist on full international recognition of farmers' rights?