(Free) Trade Deals Criminalising Individuals

GRAIN has been tracking how trade deals signed outside the multilateral system are coercing countries to adopt the industry's wish-list of intellectual property rights for seeds, and ratchet up global standards in that process, since 15 years. A recent update of our dataset shows that this trend is not letting up. In fact, there are worrisome signs on the horizon.

◦ The most important recent gains for Monsanto, Dupont, Limagrain and Syngenta – the world's top seed companies – have come from new trade deals accepted by Latin American states. In 2006, the US (home to Monsanto and Dupont) closed major deals with Peru and Colombia forcing both countries to adopt UPOV 1991. The EFTA states (home to Syngenta) did the same in 2008 and the EU (home to Limagrain) in 2012. In Central America, a similar pattern occurred. The US secured a very powerful Central America Free Trade Agreement in 2007, forcing all countries to adhere to UPOV 1991. EFTA did the same last year.

◦ An important step towards stronger proprietary seed markets was recently taken in Africa. After ten years of talks, Economic Partnership Agreements (EPAs) were concluded between the EU and sub-Saharan African states in 2014. Most of them “only” liberalise trade in goods for now, but also contain a commitment to negotiate common intellectual property standards with Brussels. The expectation is that those standards will be based on what the Caribbean states already agreed to in their 2008 EPA: an obligation to at least consider joining UPOV. This is significant because until now African states have been under no obligation to adopt UPOV as a standard, and actually tried to come up with their own systems of plant variety protection. And while it's true that African entities like the anglophone African Regional Intellectual Property Organisation (ARIPO) and the francophone African Intellectual Property Organisation (OAPI) are already joining UPOV, under the EU trade deals, countries themselves would be the ones to join. Further towards the horizon, Africa is harmonising within itself as its subregional trade blocs merge and unite to form a single continental free trade zone, supposedly by 2017. This is expected to bring with it an internal harmonisation of intellectual property laws across the continent, likely tightening the noose even further.

◦ The Trans-Pacific Partnership (TPP) agreement is possibly the scariest FTA under negotiation right now in terms of what it may do to farmers' rights to control seeds in Asia and the Pacific. This is because the US, which is leading the talks with 11 other Pacific Rim countries, is playing hardball. Leaked negotiating text from May 2014 shows the US calling not only for UPOV 1991 to be applied in all TPP states but also for the outright patenting of plants and animals. We don't yet know whether these demands will also appear in the Transatlantic Trade and Investment Partnership (TTIP) currently being negotiated between the US and the EU, as the text remains inaccessible to the public.

◦ While the extent of what has to be privatised expands, so do the penalties for disrespecting these norms. Under numerous FTAs, countries like the US require that farmers who infringe on these new intellectual property rights on seeds face punishment under criminal law instead of civil law. In some cases, like the recently concluded EU-Canada Comprehensive Economic and Trade Agreement (CETA), the mere suspicion of infringement could see a farmer's assets seized or have their bank accounts frozen.

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For a closer look at the status of trade agreements that impose seed privatisation, download GRAIN's November 2014 dataset, “Trade agreements privatising biodiversity”.