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Peasants’ Rights as New Human Rights: Promises and Concerns for Agrobiodiversity Conservation

Published online by Cambridge University Press:  14 March 2022

Zainab LOKHANDWALA*
Affiliation:
Department of Law, SOAS University of London, United Kingdom
*
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Abstract

Agrobiodiversity conservation is vital for food security, maintaining ecological balance, and preserving socio-cultural norms. There is substantial evidence to support that agrobiodiversity hotspots coincide with localized, small-scale peasant food systems. Preserving such food systems is necessary for protecting agrobiodiversity. The current legal framework over agrobiodiversity is fragmented and inadequate. A major portion of this framework is situated within intellectual property law and farmers’ rights law, neither of which are designed to foster sustainable management of agrobiodiversity. In this context, the 2018 Peasants’ Rights Declaration has the potential to fill the gaps in the existing framework. The paper critically analyses the Declaration by exploring some of its legal innovations in improving agrobiodiversity conservation. While some of these innovations are commendable, they are unlikely to be adopted by states owing to their radical nature. Their adoption would require a massive overhaul of the existing agricultural model and power structures embedded within it.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
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Copyright © The Author(s), 2022. Published by Cambridge University Press

“Biodiversity” means all life. It includes all living organisms across different ecosystems and denotes the variability among different organisms, species in plant and animal life and ecosystems.Footnote 1 Agrobiodiversity is a crucial subset of biodiversity, and all food humans consume is a product thereof. The Food and Agricultural Organization (FAO) defines agrobiodiversity to include:Footnote 2

domesticated plants and animals raised in crop, livestock, forest and aquaculture systems, harvested forest and aquatic species, the wild relatives of domesticated species, other wild species harvested for food and other products, and … the vast range of organisms that live in and around food and agricultural production systems.

Maintaining a high degree of agrobiodiversity is essential for securing adequate, nutritious, and culturally appropriate food and protecting the environment. In 2019, the FAO released its first ever report on the state of biodiversity in food and agriculture.Footnote 3 According to this report, there is overwhelming evidence to support that biodiversity plays a key role in food security and nutrition,Footnote 4 and this diversity has been in sharp decline across different food systems in the world.Footnote 5 Only nine major food crops account for 66% of global food consumption, and only 200 crops contribute to global food output among the hundreds of thousands of plant varieties cultivated for food.

Amidst sharp declines and near-extinctions of plant varieties,Footnote 6 several agrobiodiversity hotspots still thrive in different parts of the world. These are most often found in diffused and localized peasant farms and home gardens rather than in large commercial farms.Footnote 7 Traditional farming undertaken by peasants (especially special groups such as indigenous peoples) contribute vastly to agrobiodiversity sustainable use and conservation.Footnote 8 Agrobiodiversity, in turn, plays an important role in food security, nutrition, and providing livelihoods for peasants.Footnote 9 Peasant systems hence need to be preserved for ensuring agrobiodiversity richness.

Despite overwhelming evidence on the importance of preserving agrobiodiversity and the crucial role that peasant food systems play in doing so, the current “mainstream” food and agricultural model is characterized by completely different features, such as hybrid high-yielding seeds, technological intensity, resource intensity, large-scale landholding by individuals or corporations, and cultivation for profit in the globalized commodity trade of agricultural products. Productivist-oriented large-scale agriculture has diminished agrobiodiversity due to its reliance on monocropping; terminator technology within hybrid seeds; and intensive use of chemical pesticides, weedicides and fertilizers.Footnote 10 Such an agricultural model is a chief driver of agrobiodiversity loss due to its dependence on massive land use changes and overexploitation of resources, and creates pollution.Footnote 11

The legal framework pertaining to the use, sustenance, and conservation of agrobiodiversity can be found across several fields of study, and as such is fragmented. For instance, seed laws, access and benefit sharing laws, biodiversity law, intellectual property rights as they operate over plant genetic resources and traditional knowledge, and several other categories play an important role in governing agrobiodiversity. Thus, to find the law governing agrobiodiversity one would have to join bits and pieces of all these laws, as there is no singular body of law that focuses solely on it. Furthermore, to find the law managing and promoting agrobiodiversity conservation is even harder, as “agriculture” and “environment” have evolved as somewhat separate and compartmentalized law-policy fields. Cross-cutting issues, such as agrobiodiversity conservation, remain relegated to the sidelines in both spheres.

In this context, the United Nations Declaration on Rights of Peasants 2018Footnote 12 (UNDROP) is a new entrant on the legal playfield vis-à-vis agrobiodiversity. Although the focus of this Declaration is not agrobiodiversity per se, it is unique in its holistic approach that connects agriculture with environmental protection through the link of “peasantness”. This Declaration is unique in many ways, yet its potential in promoting agrobiodiversity conservation requires examination. The UNDROP is a culmination of the efforts of numerous organizations and social movements involved in advocating for food sovereignty for peasants.Footnote 13 It is based on the importance of “peasantness” that serves social, cultural, economic, and environmental functions. It recognizes “peasants” as a special category of right-holders, and makes several references to traditional knowledge, rights over seeds, and sustainable use of biological resources.Footnote 14

This paper is premised on the fact that peasant food systems need to be protected for, inter alia, conserving agrobiodiversity. The paper is organized into two sections: the first sets the context by exploring the UNDROP's ingenuity in reframing agricultural governance by orienting itself around small farmers and peasants. By recognizing unique rights of peasants to produce food using their own seeds, the Declaration promotes agrobiodiversity conservation the peasant way. The second section critically evaluates the UNDROP to make the argument that while the Declaration's legal innovations are commendable, they are unlikely to be adopted by states owing to their radical nature. A legal adoption of peasant rights as a special category of human rights, since the Declaration uses a rights language, would require a massive overhaul of the existing agricultural model and power structures embedded in this model. The paper takes a sceptical view of the Declaration's contribution towards conservation of agrobiodiversity.

I. Peasants’ Rights as a New Entrant to the Legal Framework Governing Agrobiodiversity

Many laws have a direct impact on agrobiodiversity, which are relevant for not only legal practitioners but also agricultural scientists and social scientists.Footnote 15 These laws include seed laws, biodiversity laws, laws governing traditional knowledge, access, benefit sharing, etc. The agrobiodiversity “legal framework” is a jigsaw combination of many pieces borrowed from other legal regimes that focus on something else other than agrobiodiversity per se. Among these laws, the influence of intellectual property rights (IPR) has remained predominant. In other words, much of the substantive content of the agrobiodiversity legal framework lies within the intellectual property space. This creates numerous problems; most relevant for this discussion is IPRs lack of concern for conservation. After all, this regime is meant to reward innovations of “new” plant varieties, rather than protecting “old” varieties.

The progressive introduction of IPR in the sphere of food and agriculture has led to common pool resources such as seeds of farmers’ traditional varieties and wild plant varieties to become privatized. Different forms of “seed enclosures” have developed over the past decades that prohibit or discourage farmers from saving and using their own seeds.Footnote 16 The operation of such enclosures has been a driver of depleting agrobiodiversity, as farmers are forced to make a switch to protected seeds.Footnote 17 Patents and plant breeder rights are examples of seed enclosures. Patents over plant genetic material including seeds are recognized in some countries, such as the USA.Footnote 18 Since the enactment of the Plants Patent Act 1930,Footnote 19 and the simultaneous growth of the biotechnology sector in the US, IPRs have spread across different food systems in the world. In the 1960s, the “successes” of the Green Revolution in some countries led to a rise in demand for high-yielding seed varieties. At the same time, owing to the reluctance of some European countries to introducing patents for plants, rights resembling patents and plant breeder rights were defined and developed by the International Union for the Protection of New Varieties of Plants (UPOV) Conventions.Footnote 20 The UPOV Conventions operate in seventy-seven member states, where commercial plant breeders are allowed to secure a patent-like right over plant varieties they “innovate”. In 2001, the Agreement on Trade Related Aspects of Intellectual Property RightsFootnote 21 (TRIPS Agreement) mandated World Trade Organization (WTO) member states to extend IPR protection to plant varieties.Footnote 22 This has further expanded the sphere of IPRs in agriculture to 164 member states of the WTO.

Farmers’ rights were introduced as an attempt to allay some of the issues that IPRs in agriculture brought with it. The International Treaty on Plant Genetic Resources for Food and AgricultureFootnote 23 (ITPGRFA), in its Article 9, defines “farmers’ rights” as rights to save, use, exchange, and sell farm-saved seeds.Footnote 24 What the ITPGRFA settled with was commendable in one sense, as it framed farmers’ privileges under UPOV as “rights”.Footnote 25 Notwithstanding this language of entitlement, the farmers’ rights framework is limited in imagination and scope because it only stands as a response to IPRs.Footnote 26 Farmers’ rights makes no provision for conservation, but acknowledges that traditional seed saving and exchanging practices result in conservation of agrobiodiversity.Footnote 27 To take India as an example, its farmers’ rights legislation is being increasingly rendered irrelevant given the current seed market and technological trends. More than 80% of seeds in the market are hybrid varieties, thereby leaving little or no incentive for the farmer to save, exchange, and sell his/her own varieties. The use of hybrid varieties has increased drastically,Footnote 28 thereby decreasing farmers’ incentives to carry on such a practice. In this context, a rise in scientific methods of breeding replacing traditional ones, rights over traditional knowledge, and benefit sharing available under the farmers’ rights legislation have increasingly been forgotten.Footnote 29

The sustainability of food systems depends on preserving the agro-biogenetic variability. The farmers’ rights regime, while recognizing the dangers of seed enclosures and recognizing the value of peasant farmers’ seed saving practices, stopped short of a bold framing. They remain an ideal, and a highly specialized category of exceptions to IPRs. Farmers’ rights are not “rights of farmers” due to their limited conceptualization.

The advent and spread of proprietary conceptions of agrobiodiversity marked a major departure from traditional farming practices and beliefs around agriculture and nature as a whole.Footnote 30 Other arenas of law do not quite match the influence of IPR in agrobiodiversity. For instance, seed laws across the world have seen trends of countries pushing towards greater standardization, certification, and commercialization.Footnote 31 These laws too are not directed towards promoting sustainable agriculture, let alone specifically conserving agrobiodiversity. In all cases, the laws work in tandem with the global neoliberal model of agriculture that encourages and perpetuates major environmental costs that remain unaccounted for.Footnote 32 Sustainability is a question of effective management of agrobiodiversity for current and future generations as well as conservation. Traditional farming practices involve sustainable management and conservation of biological resources as farmers stand to benefit the most from it. Farmers are also custodians of traditional knowledge associated with several plants that are crucial for maintaining an agro-ecosystemic balance. Under the current legal system, farmers are not incentivized or rewarded for sustainable and conservation of agrobiodiversity.

At the international level, the Convention on Biological Diversity (CBD) and the ITPGRFA both make clear references to sustainable management and conservation of biological genetic resources, and the special role that farmers play in achieving this.Footnote 33 Even though the CBD mentions IPR in connection with conservation of such resources,Footnote 34 neither the CBD nor the ITPGRFA create any rights for farmers’ traditional knowledge, nor entrusts any specific party with the obligation to conserve. Furthermore, IPR treaties like the TRIPS and the UPOV Conventions make no reference to sustainable management and conservation. This creates a vacuum at the national level, as environmental obligations are hardly prioritized vis-à-vis other obligations under the IPR system.Footnote 35

With increasing IPR coverage within agriculture and other environmental law regimes not engaging with agrobiodiversity conservation, the UNDROPs entry into the field provides some unique insights into the question. Even prior to the UNDROP, claims over conserving traditional seeds, and traditional ways of farming have been articulated as human rights’ claims.Footnote 36 Activism around seeds in numerous countries has highlighted the inadequacies of the current legal framework in protecting farmers against different forms of seed enclosures.Footnote 37 Such activism has led to creation of seed commons, seed banks, open-source seed systems, and recognizing special rights (beyond farmers rights) to produce food.Footnote 38 The UNDROP represents a culmination of many of these claims, made using the rights language. That is, the UNDROP articulates these struggles through the “right to seeds”, recognized primarily in Article 19 of the UNDROP. It is relevant for agrobiodiversity conservation through its articulation of right to seeds, protecting seed commons, and overall preserving peasant food systems that are agrobiodiversity hotspots.

II. Analysing the Undrop's Potential in Promoting Agrobiodiversity Conservation

The peasants’ rights framework argues that in order to achieve environmentally sustainable agriculture, agriculture needs to be peasant oriented. The UNDROP hopes to promote agroecological conservation through the recognition and realization of peasants’ rights, especially rights over seeds. To what extent will the UNDROP lead to agrobiodiversity conservation can be gauged through an assessment of some its legal innovations, and what their implementation in national contexts look like.

The Declaration recognizes the contributions of peasants and rural populations to food production, and the “special relationship” they have with land and resources; and recognizes their vulnerabilities to dispossession, unfair working conditions, and their political repression. By using the rights language, the Declaration identifies a special category of right holders and sets new standards for their individual and collective rights to land, natural resources, seeds, biodiversity, and food sovereignty. The Declaration assumes a holistic vision in protecting the rights of peasants, which most significantly includes their rights over seeds. With specific reference to environmental rights and provisions pertaining to agrobiodiversity conservation, Articles 18, 19, and 20 of the Declaration contain wide-ranging rights to seeds, conservation and protection of the environment, and protection of traditional knowledge.

Peasants’ rights over seeds include rights to save, exchange, donate, sell, use, and reuse farm-saved seeds of peasants’ varieties, and to maintain, control, protect, and develop these seeds and property over these seeds.Footnote 39 States are obliged to respect, protect, and support peasant seed systems through supporting research ensuring the participation of peasants in research and development, and by investing more into research on and development of orphan cropsFootnote 40 and seeds that respond to the needs of peasants in developing countries.Footnote 41 The current system described above with respect to rights to save, use, exchange, and sell seeds are protected by IPR, and are not human rights. The coming of the Peasants’ Rights Declaration has changed this, as it has been framed within the human rights system.

A. Bottom-up Radical Foundations of Peasants’ Rights

Peasants’ rights advocacy finds its ancestry in the food sovereignty movement and, as such, many core claims overlap in both these movements. Seed rights and the right to define one's food system are common to both movements.Footnote 42 Food sovereignty itself has been framed in the language of rights, and is defined as the “right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods, and their right to define their own food and agriculture systems”.Footnote 43 Food sovereignty has been developed by Via Campesina as a countermovement that aims to counteract the negative outcomes of neoliberalism in food and agriculture, such as agricultural commodification, environmental degradation, decreasing control of farmers over their biogenetic resources, water stress, land fragmentation, and diminishing rural livelihoods.Footnote 44

In the past, Via Campesina did make efforts to institutionalize food sovereignty rights by demanding an international convention on food sovereignty in 2003Footnote 45 and 2004;Footnote 46 however, since the 2007 Nyéléni Declaration, this attempt has more-or-less been abandoned.Footnote 47 Food sovereignty rights were since channelized in new directions. In 2008, Via Campesina proposed a draft Declaration on the Rights of Peasants, Men and Women in the United Nations (UN) Human Rights Council, upon the initiative of and building upon previous work done by the Indonesian peasant union, Serikat Petani.Footnote 48 In 2012, the Council adopted a resolution to establish a working group to negotiate a draft Declaration on Peasants’ Rights. Several peasant organisations participated in the negotiations of this working group. And in December 2018, years of negotiation and preparations led to the final draft of the UNDROP being adopted by the UN General Assembly. The UNDROP contains, among other rights, the right to food sovereignty under Article 15.4, which is a reflection of the cross-fertilization between both these movements.

The adoption of the UNDROP has, for the first, time paved the way for identifying some of the concrete rights that a food sovereignty convention might have articulated. These rights are heavily debated,Footnote 49 yet their location has been made more certain. The framing of several food sovereignty claims, such as preserving traditional and indigenous food systems, preserving the peasant way of cultivation, resources rights over land, seeds, and traditional knowledge etc. in a language of human rights is significant.Footnote 50

B. Rights-Based Framing of Peasants’ Claims

Peasants’ rights comprise not only a reiteration of existing conventional human rights, but also propose ‘new’ rights that orient previously existing human rights towards peasants’ claims. Given its radical underpinnings, peasants’ rights are seen as act of radical democracy, decolonisation, and more broadly rights against capitalism.Footnote 51 These rights innovations being negotiated and agreed upon by states within the UN is commendable, given the strength of corporations and neoliberal institutions that force states to act otherwise. Solomon argues that collective rights to land and the rights over seeds and genetic resources “reflect articulations that contest the logic of transnational capitalism, of private property, contract, accumulation, and the exploitation of people and natural resources.”Footnote 52

In the past, development programmes which used human rights language focused mainly on private property, and were linked primarily to global capitalist forces.Footnote 53 Rather than human rights being employed to secure and consolidate local communities’ land tenure, they have been known to cause or facilitate dispossession. For example, government-led initiatives to formalize land rights in East African countries, such as Kenya, Tanzania, and Ethiopia were carried out in the name of formalising informal land rights by documenting the owners and access holders. These programmes led to many right holders alienating their rights, as formalization meant they now had a title deed that could easily be transferred.Footnote 54 The use of rights towards fostering development has been interpreted as Western and colonial impositions which seek to replace local practices and traditions that operate informally.Footnote 55 Grassroots movements and activists have thus viewed the role of law, and specifically the role of human rights, ambivalently. Human rights when framed in elite spaces away from communities which will be impacted by them can work against their interests, and even when framed with their participation are still very hard to access.

Despite these limitations that human rights can pose, the human rights language has been used by many marginalized communities as a tool of resistance against capitalist forces. The rights language has been used to mobilize support, promote international solidarity, and defend against abuses and violence by several marginalized groups. By utilising the human rights framework, social movements reshape the institutions and understanding of human rights.Footnote 56 In this vein, Shawki argues that some elements of this process:

go well beyond affirmation and reformulation and can be seen as instances of extension and innovation. … They seek to strengthen the international legal status of certain human rights norms in ways that can challenge economic paradigms and existing power relations.Footnote 57

The UNDROP brings forth a more radical, democratic, and emancipatory conception of human rights and, therefore, it will be left on states, movements, and other actors as to how they make use of this document to advance peasants’ rights in either one or more such directions.

The rights language has proven to be a powerful tool despite its many limitations.Footnote 58 Rights claims are understood as universal and have the capacity to integrate within its fold multiple ideologies from diverse ideological, political, and cultural origins.Footnote 59 This explains why human rights vocabulary has been used in diverse struggles, such as the civil rights movement, LGBTQI+ groups, labour rights, indigenous peoples, etc.,Footnote 60 yet human rights cannot break free from its Western, liberal, and individualist foundations.Footnote 61 Human rights have been critiqued for their statist orientation, as it is difficult for claimants to define and enforce obligations for private entities such as corporations, especially transnational enterprises.Footnote 62 Some scholars have pointed out that human rights emphasize the appropriation of economic resources without any comment on the equality of outcome or welfare of society at large. Even group rights are framed as claims over resources for the group in question, without paying any attention to the common pool from which the resources are claimed.Footnote 63 These are caveats to the use of human rights, which have not dissuaded groups from framing their demands in the rights language. Critical human rights scholars have further pointed out such iterations redefine human rights more into something more pluralistic,Footnote 64 and redirect rights towards promoting non-Western conceptions of freedom.Footnote 65

A good example of rights transforming into more grounded, non-Western versions is the reception that the right to food has received within the food sovereignty and peasant rights movements. The right to food has been contested as it overly focuses on the consumer of food rather than the producers of food.Footnote 66 The right to food could theoretically be secured by importing grain from across the world or producing it using high-technological inputs and hybrids, or through consolidation and grabbing of land by displacing thousands of peasants, all of which food sovereignty strongly opposes. While the right to food in a conventional sense has not been received well within these movements, the UNDROP does acknowledge, in the Preamble, the work of the UN Committee on World Food Security on the right to food. Further, Article 15.5 secures the right to food for peasants. The content of the right to food has thus transformed to include newer dimensions, such as the right to food that is produced the peasant-way.

In this way, while the UNDROP is an example of human rights being used as an emancipatory tool for a particular group,Footnote 67 the Declaration also stands to revolutionize the human rights framework itself. Shivji distinguishes this phenomenon by explaining that some rights born out of struggles from below cannot be theorized as legal rights in the absolutist sense.Footnote 68 They are not just claims, but a means of struggle in and of themselves. They are thus akin to “righteousness” rather than “rights”. As a soft-law source, the essence of the UNDROP can provide new righteous insight to existing human rights. Hence, notwithstanding a framing within the UN human rights institutional space, in a language of “rights” that the UN and its members can understand, peasant claims under the UNDROP stand more as expressions of righteousness rather than rights.Footnote 69 It is hence also arguable that these claims have limited or no legal content translatable at the national level.

C. Legal Innovations within the UNDROP: Limitations of using the Rights Language for Promoting Conservation

The UNDROP's attempts at circumventing the limitations of a rights-based framing are commendable. However, how will the provisions in the Declaration translate to transformative changes in agricultural law and policy? Such legal and policy reform is crucial to address the urgent agrobiodiversity conservation issues in the food system. Accordingly, this section analyses the UNDROP's environment related provisions. This section argues that its provisions do not adequately address the environmental concerns. Moreover, even if one were to take an optimistic reading of the UNDROP, the radical yet ambiguous nature of crucial provisions within the Declaration render it difficult to be adopted as law or policy at a domestic level to enact real change.

The question of agrobiodiversity conservation is raised in the Preamble of the UNDROP, where it recognizes the “contributions of peasants … in conserving and improving biodiversity, which constitute the basis of food and agricultural production throughout the world”.Footnote 70 Then Article 19 spells out peasants’ right to seeds. It includes “the right to save, use, exchange and sell their farm-saved seed or propagating material” (Article 19.1), “the right to maintain, control, protect and develop their own seeds and traditional knowledge” (Article 19.2), and states’ obligations “to support peasant seed systems and promote the use of peasant seeds and agrobiodiversity” (Article 19.6). To gauge the potential of Article 19 and other provisions under the UNDROP in promoting agrobiodiversity conservation, this section divides the discussion into five parts: beginning with an analysis on seed rights as environmental rights.

1. Seed rights as environmental rights

To gauge the potential of seed rights in promoting agrobiodiversity conservation, seed rights can be read as environmental rights of peasants. Environmental rights have evolved globally at the international and national levels as offshoots of both human rights and environmental law.Footnote 71 The UNDROP has been drafted as a specialized human rights treaty and endorsed by the UN Human Rights Council, however the potential, applicability, and impact of seed rights can be gauged better if they are understood as environmental rights. As such, seed rights under the UNDROP are a result of peasant activism against seed enclosures created by IPRs embedded within a larger neoliberal agricultural model. Environmental rights have also stemmed from environmental degradation being seen as a human rights violation,Footnote 72 where governments are held accountable against a higher standard than would otherwise be the case. Under Article 19, a similar tone is perceptible, where peasants assert seed rights and expect their governments to combat the negative impacts of IPRs on agrobiodiversity, which especially affect peasants, as the disappearance of traditional seeds threatens their own food security, environmental stability, and socio-cultural integrity.

When understood as environmental rights, seed rights have both the substantive and procedural elements as other environmental rights articulated in other specialized human rights treaties. The substantive element being that such rights are essential for peasants to enjoy other conventional human rights.Footnote 73 For instance, Article 24 of the African CharterFootnote 74 and Article 29 of the Declaration on the Rights of Indigenous Peoples recognizes a right to environment, and constructs this right as being essential for satisfaction of other socio-economic and cultural rights. Seed rights can be read in the same way as seeds are an intrinsic element of peasant life, and the loss of control over seeds can arguably lead to a loss of peasantness. The Declaration hopes to foster empowerment of peasants to participate in the deliberative process of framing food and agricultural policy such that they be entitled to fashion laws, policies, and governmental decisions to suit their needs. This is the procedural element of seed rights as environmental rights, akin to environmental treaties on access to information and public participation. For instance, the Aarhus Convention 1998Footnote 75 reads procedural environmental rights as human rights. Food sovereignty rights and seed rights within the UNDROP can be read as procedural environmental rights wherein peasants “have a right to determine their own food and agricultural systems” (Article 15.4), and states have an obligation to “take appropriate measures to ensure that agricultural research and development integrates the needs of peasants and … ensure their active participation in the definition of priorities and the undertaking of research and development”.

Accordingly, the UNDROP contains several provisions that are relevant to the environment. However, to what extent are these provisions translatable in policy terms is the larger question. There is a long history of using the human rights framework for environmental protection.Footnote 76 Both human rights law and environmental law, with special reference to use and protection of natural resources, have interwoven to see an increasing mention of environmental concerns in human rights instruments and vice versa, the use of a rights-based discourse, the constitutional status of some environmental human rights, the environmental claims before human rights tribunals, and so on. The growth and application of environmental rights, as markers of increasing interwovenness of human rights and environment, have not been free of challenges. Environmental rights continue to struggle reconciling with collective claims, indigenous and customary environmental conceptions, and unique environmental problems and conditions.Footnote 77 In this context, the seed rights within the UNDROP are even harder to frame, use, and implement as law.

2. Power relations in food and land

To implement the radical agenda of peasants’ rights requires states to fundamentally restructure their food and agricultural models that are entrenched in set power structures. In several countries, political power is exercised by land-owning elites who have massive investments in agriculture.Footnote 78 This land-agriculture-politics nexus is challenged by the very idea of peasants’ rights. It is thus one thing to sign a non-binding declaration as a mode of endorsement for an international cause of emancipation, but it is quite another matter to ratify a binding treaty on peasants’ rights if it ever were to come about. In many ways, the UNDROP follows the footsteps of UN Declaration on the Rights of Indigenous Peoples (UNDRIP),Footnote 79 wherein states were found willing to negotiate and sign a declaration for rights of indigenous peoples; however, states are evidently uncomfortable with the core ideas of UNDRIP, such as self-determination. India for instance, while endorsing the UNDRIP does not recognize that its own tribal populations are “indigenous peoples”. It thus, conveniently locates the problématique somewhere else, such as in the USA, Canada, or Australia where the term has been historically used. This may repeat with the UNDROP, wherein “cunning states”, such as India, fail to recognize the issues of power-asymmetry within its own food and agricultural model.Footnote 80 Land rights under Article 17 of the UNDROP state that states shall “provide legal recognition for land tenure rights, including customary land tenure rights not currently protected by law, recognizing the existence of different models and systems”.Footnote 81 Further, the Declaration obliges states to protect peasants against eviction, recognize peasants’ legitimate tenure, and recognition of “natural commons and their related systems of collective use and management”.Footnote 82 The vagueness in the many terms used is not only a taxonomic problem. These rights, at their heart, contest the logic of capitalism and globalization.Footnote 83 They are expressions of alternatives to privatization and corporatization of land and the accumulation of natural resources that leads to forced displacements, land grabs, and financial speculative land investments. The realization of such rights would require more than a mere enactment or amendment of land laws, but a restructuring of the political economy of natural resource law itself.

Other resource rights within the UNDROP adopts similar tonality. These rights include the right to access natural resources and participate in their management (Article 5), the right to participate in preparation and implementation of policies affecting them (Article 10), the right to food sovereignty (Article 15.4), and the right to water (Article 21), which includes a right to water for livelihood (Article 21.2). Peasants and other people working in rural areas have the right to the conservation and protection of the environment and the productive capacity of their lands (Article 18). Land and resource rights under the UNDROP are expressed as states’ obligations. Its framing within the UN as a human rights declaration cannot escape this statist orientation.Footnote 84

Reconciling the peasants’ rights radical agenda with the legitimacy and agency the UNDROP attributes to the state is problematic. The UNDROP provides an alternative paradigm to the dominant agricultural model. The right to food sovereignty on the one hand is claimed for peasants, communities, and peoples; a right that embraces a multiplicity of sovereignties.Footnote 85 Such a radical foundation challenges the monopoly of the government as defining “public interest”, and hence UNDROP's emphasis on the state “as the only legitimate source of law making and applying” is irreconcilable with food sovereignty for peasants. Lowering of standards to merely “participation rights” is not a worthy goal of the UNDROP.

3. Contradictions in the rights framework

Some rights cannot be reconciled with others. The ambiguity of resource rights aside, Article 5 imagines a scenario of exploitation of natural resources which “peasants [] traditionally hold”, wherein a social and environmental impact assessment and consultations in good faith should be conducted. It is the duty of the state to carry out such assessments and consultations, yet the Declaration does not explicitly speak of peasants rejecting any proposal of exploitation. However, Article 15.4 spells out a right to food sovereignty, which, under the food sovereignty discourse includes a “right to reject” any agricultural model.Footnote 86 The UNDROP does not go so far, but somewhat qualifies the right to food sovereignty by adding that this right “includes the right to participate in decision-making processes on food and agriculture policy”. The radical agenda of peasants see a compromise in their articulation of land and resource rights that are provided and secured by the state. In this respect, it is not clear whether the UNDROP stands in support of state sovereignty over natural resources and eminent domain or against its exploitative uses against peasants.Footnote 87

4. Lowering protections

Some rights provide a lower standard of protection than already enjoyed under other laws. Here again, while Article 5 states that it does not prejudice a higher standard of protection under any other domestic or international law,Footnote 88 clause (c) of paragraph 2 speaks of fair and equitable benefit sharing to be on “mutually agreed terms between those exploiting the natural resources and the peasants”. It does not in and of itself use the language of “free, prior, and informed consent” and even defends the right to development in its framing of Article 5.Footnote 89 With respect to Article 19 on rights to seeds, the Declaration goes so far to spell out a right to “maintain, control, protect, and develop their own seeds” and “participate in the making of decisions on matters relating to the conservation and sustainable use of plant genetic resources”.Footnote 90

The peasants’ rights framework also does not adequately engage with the question of food security. The Declaration stands against capitalistic, mechanistic, and globalized agriculture. It does not, however, engage with the motivations and reasons that led to such a style of agriculture being widely adopted. For instance, in the 1960s, when Green Revolution technology was announced, there were few takers in the developing world, barring the notable exceptions of India and Indonesia. India was on the brink of famine and feared hunger of a colossal scale in the coming years. It had no option but to adopt large-scale technology-intensive agriculture that would solve its food shortage crisis.Footnote 91 Within only five years, India and Indonesia overcame its cereal deficit and became global exporters of grain. Today the world has the advantage of hindsight, and especially so with respect to the environmental impact of agro-technologies introduced by the Green Revolution. Yet, what about the benefits that mass-production has rendered? The peasants’ rights movement's rejection of the food security agenda has not adequately answered this question.Footnote 92 Critical scholars have raised concerns over the romanticizing and essentialization of peasant farmers by the food sovereignty movement.Footnote 93 In most parts of the world, the profitability of small-scale agriculture is a serious issue, and how peasant food systems, even if they were meted out with legal protection, would find a way to be profitable is not addressed within the Declaration. Can the adoption of peasants’ rights curb or reverse trends of low-profitability and depeasantization prevailing across the world?Footnote 94

5. Problematic definition of peasants

Finally, defining peasants as a normative category is difficult. The identification of peasants as a special group marks a unique development of law, unlike any other category of people that human rights law has specialized in in the past. A specialization for groups such as “women”, “indigenous peoples”, “linguistic minorities”, or “disabled people” have several objective makers. This is not to say that there will never be any doubts over inclusion and exclusion. But a historical and scientific basis of distinguishing the group has been possible. With respect to peasants, definitions may lead to, or rely on, reification or “culturization” of the idea of who is a “peasant”. Political or economic distinctions are not enough, and this fuzziness around who is included within this category and who isn't is a question that the Declaration fails to address. The lack of clear parameters or definition of who is a peasant is a crucial flaw. To give an example of the farmers’ protests in India's capital city, New Delhi introduced three farm laws in September 2020. These protests have been endorsed by food sovereignty and peasant organizations across the world.Footnote 95 However, the farmers that are protesting against the apparent corporatization of Indian agriculture comprise mainly landed elites from the states of Punjab and Haryana, the epicentres of the Green Revolution.Footnote 96

The limitations that a human-rights-frame naturally pose for peasants’ claims are significant, however commendable the attempts made at circumventing them. Articles 18 and 19 read together have the potential for promoting agrobiodiversity protection through the protection of peasant food systems. Yet the author takes a sceptical view of these rights being translated into law, for they are embedded in a radical agenda that lacks clarity on the nature and scope of natural resource rights, environmental rights that not as strongly framed as a radical agenda would have them do, and the question of who is a peasant. The UNDROP as an instance of rights from below, or an articulation of grassroots struggles against capitalist forces is indeed remarkable,Footnote 97 yet its relevance for furthering environmental protection through conservation of seeds is doubtful. In this sense, its entry into the field of agrobiodiversity protection through the human rights gate is a major development, yet its manifestation within the domestic contexts of states is difficult to imagine.

III. Conclusion

The extent of legal innovation the UNDROP employs stands juxtaposed to the restrictions of its human rights-based framing. This paper has tried to highlight the fragmentation and inefficiency of the legal framework covering agrobiodiversity. Given the overwhelming influence of IPR law over plant genetic resources and biological diversity, the urgent issues of protection and conservation of agrobiodiversity have been inadequately dealt with by international law. The current agricultural model stands largely opposed to the interests of peasant farmers, who are the chief actors in agrobiodiversity conservation.

In this context, the UNDROP poses as a possible solution to fill up the legal vacuum over agrobiodiversity. It uses the rights language and the international human rights institutional architecture to propose a holistic change of current food and agricultural systems. By focusing on the interests of peasants and preserving the peasant-way that in turn promotes judicious use of resources and protects agrobiodiversity, it frames several peasants’ claims in the language of rights. The emancipatory dimension of celebrating and preserving “peasantness” is a landmark development in human rights law. The author explores UNDROP to assess its potential in promoting agrobiodiversity conservation through peasants’ rights to seeds and other resource rights. There are obvious constraints that the rights-language pose, and this is especially true when human rights are used for furthering the environmental agenda. Despite the long history of the environmental and human rights nexus, this Declaration fails on some counts, making it difficult for its legal enactment and implementation. One, the UNDROP cannot escape the statist framing, and despite its radical foundations, depends on states for granting rights. There is a lack of clarity in crucial provisions on land rights and rights to allow (or disallow) exploitation of traditionally held resources. Some of the standards mentioned herein are not as strong as they could be. However, overall, the UNDROP as radical articulation of peasants’ claims cannot be achieved without reordering rural power asymmetries and massively rearranging the architecture of agriculture itself. According to the author, all these factors render much of its noble content unusable in the domestic context.

Acknowledgements

The author would like to thank Professor Philippe Cullet and Dr Birsha Ohdedar for their comments and support.

Funding statement

None.

Competing interests

The author declares none.

Zainab LOKHANDWALA is a PhD candidate and Teaching Fellow at Department of Law, School of Oriental and African Studies (SOAS) University of London, United Kingdom.

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