law environment and developmentjournalto the international treaty on plant genetic resources for...

LEADLawEnvironment and

DevelopmentJournal

VOLUME

151

AN EVALUATION OF THE IRAQI DRAFT LAW ON THE PROTECTIONAND EXCHANGE OF PLANT GENETIC RESOURCES

FOR FOOD AND AGRICULTURE

Nihaya Khalaf

ARTICLE

LEAD Journal (Law Environment and Development Journal)is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the

Law Environment and Development Centre of SOAS University of Londonand the International Environmental Law Research Centre (IELRC)

LEAD is published at wwwlead-journalorginfolead-journalorg

ISSN 1746-5893

This document can be cited asNihaya Khalaf lsquoAn Evaluation of the Iraqi Draft Law on the Protection

and Exchange of Plant Genetic Resources for Food and Agriculturersquo 151 Law Environment and Development Journal (2019) p 1

available at httpwwwlead-journalorgcontent19001pdfDOI httpsdoiorg1025501SOAS00033078

Nihaya Khalaf Lecturer in Law Al Salam University Ltd Company Kuwait Email nalshati7gmailcom

Published under a Creative Commons Attribution-NonCommercial-ShareAlike 30 Unported License

ARTICLE

AN EVALUATION OF THE IRAQI DRAFT LAW ON THEPROTECTION AND EXCHANGE OF PLANT GENETIC

RESOURCES FOR FOOD AND AGRICULTURE

Nihaya Khalaf

TABLE OF CONTENTS

1 Introduction 3

2 Genetic Resources and Genetic Material 321 Derivatives 422 Is it all about Access 4

3 Granting Access 531 Access to Plant Genetic Resources of the MLS 532 Access for Scientific Research Purposes 633 Access for Commercial Purposes 7

4 Scope of Access and Benefit Sharing 7

5 Property Claims to Plant Genetic Resources 851 Iraqi Farmers Less or more Rights 952 Other Entitlements Concerning Plant Genetic Resources 9

6 Conclusion 10

1INTRODUCTION

In Iraq the Draft Law on the Protection and Exchangeof Plant Genetic Resource for Food and Agriculture(DLPEP) is currently awaiting the endorsement ofParliament The proposed law is expected to set outthe framework for systematic provisions of access toboth in situ and ex situ plant genetic resources for foodand agriculture The DLPEP as Article 2 provides aimsat the conservation and sustainable use of plant geneticresources as well as regulating their exchange foracademic purposes scientific research training andplant breeding Under the proposed legislativeframework however access to and utilisation of geneticresources other than those of plants and associatedtraditional knowledge remain largely unregulated inIraq

This paper analyses Iraqrsquos policy on access and benefitsharing in order to identify shortcomings and optionsfor improvement Section 2 discusses the definitionalambiguities of plant genetic resources which could haveimplications on defining the scope of the protectionthat will be provided It also looks at the objectives ofthe Draft Law which provides evidence of theconservation goal in its present form Section 3examines relevant provisions on access and their scopeIt analyses the three different categories of access toplant genetic resources proposed in the DLPEP accessto the MLS material access for commercial purposesand access for scientific research Farmersrsquo rights will bediscussed in section 4

2GENETIC RESOURCES AND GENETICMATERIAL

Over the past few years The DLPEP has been a subjectof discussion in Iraq It is currently under considerationof the Iraqi parliament and is being discussed bydifferent stakeholders notably the Ministry ofAgriculture The DLPEP contributes to the

implementation of Iraqrsquos obligations under theITPGRFA1 and also covers plant genetic resourcesthat are covered by the Convention on BiologicalDiversity (CBD) and the Nagoya Protocol (NP)2

The DLPEP defines genetic material and geneticresources as lsquoliving genetic material of plant originrsquo3 4

The definition is however ambiguous as it does notdraw a clear distinction between genetic resources andgenetic material This is in part due to translationproblems and the technical language of the protectedsubject matter It is important to mention that plantsare also defined in the Iraqi Agriculture QuarantineAct (762012) whose Article 1 defines plants as lsquolivingplants or parts thereof including seed or plant geneticmaterialrsquo

Looking at the above definition the term lsquogeneticmaterialrsquo has been preceded by the word lsquolivingrsquo andthis may make the scope of protection narrow A broad

Law Environment and Development Journal

3

1 Iraq became a contracting party on 27 November 2014to the International Treaty on Plant Genetic Resourcesfor Food and Agriculture Rome 3 November 20012400 UNTS 303 [hereafter ITPGRFA]

2 Iraq acceded on 26 October 2009 to the Convention onBiological Diversity Rio de Janeiro 5 June 1992 1760UNTS 79 [hereafter CBD] Various steps have been takenin implementation of the countryrsquos obligations underthe Convention These include the preparation of anational report to the CBD the development of a nationalbiodiversity strategy and action plans and the initiationof designated protected areas The Iraqi NationalBiodiversity Strategy and Action Plan (NBSAP) formsan important strategy for the implementation of theCBD and functions as an overall framework for theconservation of biodiversity in the country The FourthNational Report to the Convention on BiologicalDiversity (the first for Iraq) sets out a framework formaterializing the vision of the NBSAP into practicalactions to ensure effective conservation and sustainableutilisation of the countryrsquos biological resources TheFifth National Report on Biodiversity (March 2014)underscores that legislative institutional and financialrehabilitation are needed on an equal basis See IraqiMinistry of Environment Fourth National Report tothe Convention on Biological Diversity (Ministry ofEnvironment Iraq 2010) 19 Iraqi Ministry ofEnvironment Fifth National Report on Biodiversityrsquo(Ministry of Environment Iraq 2014) 1 17

3 Draft Law on the Protection and Exchange of PlantGenetic Resources for Food and Agriculture art 1[hereafter DLPEP] Note that the original text is in Arabicand all translations are the authorrsquos own

4 DLPEP (n 3) art 1

definition of plant genetic resources covers any materialof plant origin that contains genetic information ofactual or potential value5 In fact genetic resources donot necessarily refer to the full organism such as a plantgenetic resources may refer to a cell tissue or a characteror the genetic makeup with physiological characteristicswhich are rare and can be transferred from one object toanother6 According to Article 2 of the ITPGRFA plantgenetic material means lsquoany material of plant originincluding reproductive and vegetative propagatingmaterial containing functional units of heredityrsquo7 Theelement of functional units of heredity in the definitionof genetic resources entails however that somebiological products such as gene sequences which aregenetic parts and components are not protected

Finally while the ITPGRFA explicitly refers to thescientific and socio-economic value of genetic materialthe qualifying element of the concept lsquogenetic resourcesrsquothat is not defined in the DLPEP is the specificationthat genetic material is of socio-economic value8

21 Derivatives

The proposed law extends the definition of derivativesto include in addition to naturally occurringcompounds products that can be developed throughthe use of plant genetic resources and their geneticcomposition such as plant varieties and other similarproducts The DLPEP defines derivatives lsquoالمشتقاتrsquo aslsquoproducts which are developed or extracted from plantgenetic resources obtained in accordance with this lawrsquo9As such the draft extends the definition of derivatives

to include in addition to naturally occurring compoundsproducts that can be developed through using plantgenetic resources and their genetic compositionDerivatives however are not defined in the ITPGRFAwhich indeed does not address access to these resourcesand their utilisation The NP defines derivatives butthe definition covers only naturally occurringbiochemical compounds10 It defines derivatives inArticle 2(e) as lsquoa naturally occurring biochemicalcompound resulting from the genetic expression ormetabolism of biological or genetic resources even ifit does not contain functional units of heredityrsquo11

22 Is it all about Access

The proposed law aims at the protection conservationand the regulation of the exchange of plant geneticresources for scientific research and training and plantbreeding12 It also aims to ensure fair sharing of thebenefits arising out of the utilisation of plant geneticresources13 According to Article 9(d) it is confirmedthat benefits arising from the utilisation of plant geneticresources shall be directed to the conservation of theseresources14 The link between the conservation andbenefit sharing objectives is seen as important becausefair and equitable benefit-sharing in itself does notnecessarily mean contributing towards theconservation of crop biodiversity15 The NP hasrecently addressed this issue in Article 9 whichencourages contracting parties to take measures toensure that benefits arising out of the utilisation ofgenetic resources are directed towards the conservationand sustainable use of biodiversity16

Iraq Draft Law Plant Genetic Resources

4

5 ITPGRFA (n 1) art 26 Arab Organization for Agricultural Development lsquoThe

Guide to Legislations on Plant Genetic Resources forFood and Agriculture in the Arab Worldrsquo (ArabOrganization for Agricultural Development ArabLeague Al Khartoum 2003)1 21 [authorrsquos translation]

المنظمة العربیة للتنمیة الزراعیة دلیل التشریعات في مجال الموارد الوراثیة النباتیة لالغذیة والزراعة في الوطن العربي ( المنظمة العربیة للتنمیة الزراعیةجامعة الدول العربیة الخرطوم 2003)1lsquo21

7 According to Article 2 of the CBD (n 2) geneticresources refer to lsquogenetic material of actual or potentialvaluersquo and in its turn genetic material is defined as lsquolsquoanygenetic material of plant animal microbial or otherorigin containing functional units of heredityrsquo

8 ITPGRFA (n 1) art 29 DLPEP (n 3) art 1

10 Carlos Correa lsquoImplications for Bio Trade of the NagoyaProtocol on Access to Genetic resources and the Fair andEquitable Sharing of Benefits Arising from theirUtilizationrsquo(United Nations publications New York andGeneva 2011) ltwwwbiotradeorgresourcespublicationsunctad _ditc_ted_2011_9pdfgt

11 Protocol on Access to Genetic Resources and the Fairand Equitable Sharing of Benefits Arising from theirUtilization Nagoya 29 October 2010 UN Doc UNEPCBDCOPDECX1 art 2(e)

12 DLPEP (n 3) art 2113 DLPEP (n 3) art 2(c)14 DLPEP (n 3) art 12(d)15 Thomas Greiber et al An Explanatory Guide to the

Nagoya Protocol on Access and Benefit-Sharing (IUCN2012) 125

16 Protocol on Access to Genetic Resources and the Fairand Equitable Sharing of Benefits Arising from theirUtilization Nagoya 29 October 2010 UN Doc UNEPCBDCOPDECX1 art 9

However it can be observed that the objective ofconservation of plant genetic resources is not presentin the operative sections of the DLPEP except in Article2 and in reference to the duty of the Plant GeneticResources Unit to cooperate with concerned entities inthe implementation of the conservation andsustainable utilisation provisions But the languageof Article 2(a) suggests that it only allows thedevelopment of new genetic compositions forcommercial purposes It provides that the law aims atlsquofacilitating access to plant genetic resources for academicand scientific purposes and the utilisation of theseresources to develop genetic compositions forcommercial purposesrsquo17

In addition the proposed law aims to regulate accessto plant genetic resources and their transfer outsidethe country18 It could be argued that the utilisationof genetic material of accessed crops may not requirethe transfer of these resources outside Iraq as it ispossible to conduct the research inside the country Itwill encourage domestic research and help humanresource development19 To conclude conducting suchresearch in Iraq is important to combat biopiracy andto facilitate the transfer of conservation technologyand its corresponding knowhow to Iraq

3GRANTING ACCESS

Articles 8 and 9 of the proposed law constitute thecore provisions on access according to which access toplant genetic resources could be put to commercial ornon-commercial uses Three different categories ofaccess to plant genetic resources have been set down

by the DLPEP access to the MLS material access forcommercial purposes and access for scientific researchpurposes20 In doing so the proposed lawdistinguishes between access situations on the basisof the purpose of access and sets different provisionsfor each access situation

31 Access to Plant GeneticResources of the MLS

The proposed law provides that access to plant geneticresources of Annex 1 to the ITPGRFA shall bethrough the Multilateral System (MLS) and the sharingof the benefits arising from their utilisation will be inaccordance with the provisions of the ITPGRFA21 Itprovides that other non-food related industrial usessuch as chemical and pharmaceutical uses areexcluded22

According to Article 112 of the ITPGRFA the MLScovers plant genetic resources for food and agriculturelisted in Annex 1 to the Treaty which are under themanagement and control of contracting parties and inthe public domain Correarsquos analysis of the conceptlsquomanagement and controlrsquo suggests that the wordlsquomanagementrsquo refers to lsquothe actual handlingrsquo of Annex1 plant genetic resources and not to the legal status ofthese resources23 The term lsquomanagementrsquo means thecapacity of a contracting party to carry out acts ofconservation and utilisation directly or indirectlythrough a third party24 This explains the reason whyArticle 112 of the ITPGRFA deliberately introducedor added the word lsquocontrolrsquo which is a legal qualification

Therefore the interpretation of the management andcontrol requirement may become difficult in Iraq as itis a federal state The decentralised governance in Iraqcreated by the new political system of 2003 representsa dramatic shift especially for those state agencies with


5

17 DLPEP (n 3) art 2(a)18 The aims of DLPEP (n 3) art 2 include the regulation of

access to plant genetic resources and the transfer ofthese resources outside Iraq

19 Ashish Kothari lsquoIndiarsquos Biodiversity Act Finally A stepin the Right Directionrsquo ltwwwiatp orgfiles IndiasBiodiversity_Act_Finally_A_Step_in_the_htmgtUNCTAD Facilitating Transfer of Technology toDeveloping Countries A Survey of Home-CountryMeasures (UNCTAD Series on Technology Transfer andDevelopment United Nations 2004) 11-4

20 DLPEP (n 3) art 8221 DLPEP (n 3) art 91(a)22 DLPEP (n 3) art 91(b)23 Carlos M Correa PGRFA under Control and

Management of the Contracting Parties and in the PublicDomain First Meeting of the Ad Hoc Advisory TechnicalCommittee on the Standards Material TransferAgreement and the Multilateral System of the TreatyDoc ITAC-SMTA-MLS 1104 (2009) 3-5

24 Ibid

no previous experience of decentralisation25 Forinstance the 2005 Constitution of Iraq vests authorityin the federal regional and governorate governmentsand grants significant authority to regional and localgovernments without specifying the way that thedifferent levels of government should work with eachother to achieve the established aims26 In addressingthe distribution of authority between the federalgovernment and regional and governorategovernments Article 115 of the 2005 Constitutionstates that all powers that are not assigned exclusivelyto the central government are retained by the regionalgovernments27 Thus it is argued that the 2005Constitution creates confusion with respect to themanagement of natural resources and their revenue28

Practically speaking focusing on plant genetic resourcesthe gene bank in Abu Gharib is part of the plantgenetic resources unit of the Federal Ministry ofAgriculture Thus its collections which include 3000accessions some of them collected in 1977 are deemedto be automatically included in the MLS The Ministryof Agriculture has begun documenting plant geneticresources and the number of crop gene banks inBaghdad has continued to grow Plant genetic resourcesof Annex 1 in the Kurdistan region including those

in ex situ conditions appear prima facie to not becovered and the inclusion of these collections wouldneed to be carried out with the consent of the entitiesconcerned as stated in the ITPGRFA

The second criterion for the inclusion in the MLS isthat plant genetic resources for food and agricultureof Annex 1 must be in the public domain29 Theterm lsquopublic domainrsquo is defined as a legal qualificationreferring either to public property (ie things thatbelong to the public and are dedicated to their use) oraccording to intellectual property law to plant geneticresources that are not protected by intellectual propertyrights In the contemporary state of Iraq the conceptof lsquopublic domainrsquo has a wider ambit when interpretedunder administrative law Over a decade ago exactlyuntil the 2003 invasion of Iraq the InterimConstitution of 1970 prohibited claiming privateproperty rights over natural resources Article 13 ofthe Interim Constitution stated that lsquonatural resourcesand basic means of productions are owned by thepeoplersquo However the 2005 Constitution does notaddress the legal status of natural resources except foroil30

While the proposed law recognises state property rightsover plant genetic resources it does not prohibitclaiming intellectual property rights over the MLSmaterial under the ITPGRFA This would mean thatcrop genetic resources received from Iraq in accordancewith the MLS can be claimed via intellectual propertyrights even if they have not been modified in any wayThe ITPGRFA and the SMTA however ban theclaiming of intellectual property rights on materialaccessed in the form received from the MLS

32 Access for Scientific ResearchPurposes

The proposed law regulates access to plant geneticresources for scientific research providing that access toplant genetic resources is permitted for academicscientific and educational purposes or for plant geneticresources breeding31 In setting the provisions foraccess to plant genetic resources for scientific research


6

25 Mishkat Al Moumin lsquoThe Legal Framework for ManagingOil in Post-Conflict Iraq A Pattern of Abuse andViolence over Natural Resourcesrsquo in P Lujala SA Rustad(eds) High Value Natural Resources and Peacebuilding(Earthscan 2012) 419

26 Similarly Constitution of Iraq 2005 art 121 assigns theregional government lsquothe right to exercise executivelegislative and judicial powers in accordance with thisConstitution except for those authorities stipulated inthe exclusive authorities of the federal governmentrsquo Italso recognises that the regional power has the right toamend the application of national law inside the regionif there is a contradiction between regional and nationallegislation concerning any issue that is outside theexclusive authority of the federal government Ibid

27 Constitution of Iraq 2005 art 115 states All powers notstipulated in the exclusive powers of the federalgovernment belong to the authorities of the regionsand governments that are not organized in a regionWith regard to other powers shared between federalgovernment and the regional government priority shallbe given to the law of the regions and governorates notorganized in a region in case of dispute

28 A clear manifestation of this complex legal situation isthe oil dispute between the Iraqi central governmentand the Kurdistan Regional Government Al Moumin(n 25) 421

29 ITPGRFA (n 1) art 11230 Constitution of Iraq 2005 art 11131 DLPEP (n 3) art 91(a)

parties create conditions to promote research whichcontributes to the conservation and sustainable useof biodiversity particularly in developing countriesto set simplified measures on access for non-commercial research purposes taking into account theneed to address a change of intent for such research38

Besides the language of Article 92 suggests that theDraft Law does not distinguish between access to plantgenetic resources and their transfer The DLPEPprovides that access for commercial purposes requiresthe applicant to sign a material transfer agreementwithout any reference to procedures of prior informedconsent (PIC) or mutually agreed terms (MAT)39

4SCOPE OF ACCESS AND BENEFITSHARING

One of the key characteristics of the Draft Law is itsbroad scope in covering plant genetic resources thatare subject to the CBD NP and ITPGRFA Article 3(a)of the Draft Law makes it clear that the provisions ofthe law apply to all plant genetic resources within thelimits of the territory of Iraq and its territorial watersas well as to plant genetic resources that have beenacquired in accordance with international law

Although derivatives are defined in the proposed lawin Article 1 derivatives are not mentioned in Article 3in the scope of the draft which explicitly provides thatthe provisions of this law apply to all plant geneticresources The sufficiency of the proposed law toestablish a framework for access and benefit sharingfrom which derivatives are extracted is questionableIndeed this legislative policy reflects the ITPGRFAprovisions on access and benefit sharing which coverall plant genetic resources for food and agricultureunder Annex 1 to the Treaty but omit Article 2 thatincludes genetic compositions and parts that defineplant genetic resources40

purposes Article 91(a) of the Draft Law prohibits theuse of plant genetic resources accessed for scientificresearch for commercial purposes without the writtenconsent of the competent national authority32 It alsoprohibits under the non-commercial usage categoryclaims to intellectual property rights over plant geneticresources and associated traditional knowledge Thepractices of public research institutes in Iraq show thatthey do not generally seek intellectual property rightsas they are non-profit making entities It is worthnoting that the proposed law does not prohibit suchclaims in respect of access to the MLS material andaccess for commercial purposes In this context neitherthe Nagoya protocol nor the CBD prevent claimingintellectual property rights over genetic resources ortraditional knowledge

33 Access for Commercial Purposes

The third category in the Draft Law is access to plantgenetic resources for commercial uses The DLPEPpermits access to plant genetic resources for commercialuses but it excludes the MLS material of Annex 1from its scope33 The word ldquocommercialrdquo is critical tothe way the Draft Law restricts access to plant geneticresources The DLPEP does not define the termlsquocommercial usersquo Commercial utilisation of geneticresources is defined by the CBD as ldquoresearch activitiesthat explore the commercial potential of bioresourcesor associated traditional knowledgerdquo34

However there are cases where it is difficult to draw aclear distinction between commercial and non-commercial uses of plant genetic resources35 It isargued that private and public research institutionsmay engage in both commercial and non-commercialresearch And they normally use similar researchmethods and processes that may contribute tobiodiversity conservation36 Greiber et al maintain thatthe intent and not the form of the research undertakendetermines whether the research is commercial or non-commercial 37 Article 8(a) of the NP requires that state


7

32 DLPEP (n 3) art 92(a)33 DLPEP (n 3) art 934 Secretariat of the Convention on Biological Diversity

Uses of Genetic Resources (2010) 1 235 Greiber et al (n 15) 11936 Ibid 11937 Ibid 17

38 Ibid 11939 DLPEP (n 3) art 92(b)40 Greiber et al (n 15) 34

The proposed law while defining its own scope refersto traditional knowledge It provides that the lawapplies to lsquoplant genetic resources for food andagriculture hellip and any information related to theseresourcesrsquo41 The phrase lsquoinformation related to theseresourcesrsquo can be interpreted as referring to traditionalknowledge considering that the DLPEP recognisesfarmersrsquo rights to participate in making decisions onmatters related to the conservation and sustainablemanagement of PGRFA

Besides the potential benefits under the Draft Laware expected to be limited as the law will be inimplementation of the ITPGRFA under which thefacilitation of access to plant genetic resources is a majorbenefit of the MLS42 The draft also regulates accessto plant genetic resources that are covered by the CBDand its protocol but access under either entails bilateralnegotiations in order to determine benefits includingthe benefits to be shared with the provider

Finally although Iraq is a federal state decentralisationprinciples find no place in the draftrsquos provisions TheDLPEP is expected to be implemented at threefunctional levels federal regional and local A three-tier institutional structure should be envisaged in thelaw In order to implement these provisions a federalinformation system needs to be set up Its functionsshould be the compilation of information on issuesrelated to the genetic diversity of the country Theimplementation of the ITPGRFA with regard to accessto crop species covered by the MLS requires theseresources to be under the management and control ofthe governments of the contracting parties and thisinvolves issues that are not easy to determine

5PROPERTY CLAIMS TO PLANTGENETIC RESOURCES

The proposed law recognises state property rights toplant genetic resources and associated traditional

knowledge Article 3(c) of the Draft Law explicitlyprovides that plant genetic resources and all relatedinformation belong to the state43 State property rightsalso known as public property are defined as propertywhich is in turn owned by all but with the state havingcontrol over access and utilisation44 However stateproperty rights over plant genetic resources have nobasis in the CBD45 and ITPGRFA as they both makeit clear that plant genetic resources are subject to theprinciple of state sovereignty Under the CBD and itsProtocol it is intended that parties exercise more stricterapplication of their sovereign rights over their biologicalresources46 in a way that a provider country has theright to oversee access to genetic resources andassociated traditional knowledge and the power tonegotiate and agree on access conditions with potentialusers

Under Iraqi law the possible application of stateproperty rights over plant genetic resources may notbe practical comparing to the principle of statesovereignty According to Correa state sovereignty isabout the power and jurisdiction of states ldquoto establishhow the resources and assets (tangible and intangible)existing in its territory are distributed used andeventually subject to property rightsrdquo47 Althoughrecognising public property over genetic resources is inline with the social and political conceptions of property


8

41 DLPEP (n 3) art 3142 DLPEP (n 3) art 6(b)5

43 DLPEP (n 3) art 344 Kevin Guerin lsquoProperty Rights and Environmental

Policy A New Zealand Perspectiversquo (Working Paper NewZealand Treasury New Zealand 2003) 1 2-8

45 Kent Nnadozie Legal Status of Genetic Resources inNational Law Fifth Meeting of the Open Ended ADHOC Open-Ended Working Group on Access andBenefit Sharing UN Doc UNEPCBDWG-ABS55(2007) 1-7

46 Jorge Cabrera Medaglia et al The Interface between theNagoya Protocol on ABS and the ITPGRFA at theInternational Level Potential Issues for Considerationin Supporting Mutually Supportive Implementation atthe National Level (Fridtjof Nansen Institute Report 12013) 31 Gerd Winter lsquoTowards Regional CommonPools of GRs- Improving the Effectiveness and Justiceof ABSrsquo in Evanson C Kamau and Gerd Winter (eds)Genetic Resources Traditional Knowledge and the Law Solutionsfor Access and Benefit Sharing (Earthscan 2009)1 21

47 Carlos Correa lsquoSovereign and Property Rights over PlantGenetic Resourcesrsquo (Background Study Paper No2Commission on Plant Genetic Resources Rome 7-11November 1994) 2

rights in the country Iraqrsquos freedom to legislate issubject to its obligations under international lawPractically speaking the establishment of propertyrights over genetic resources is limited by the intangiblenature of its genetic components (their DNA RNAgene and genotype information) These limitationsto the proposed legislative framework need to beaddressed by future studies

51 Iraqi Farmers Less or moreRights

The proposed law recognises the right of Iraqi farmersto participate in decision-making in issues related tothe conservation of plant genetic resources in theirareas and their right to share benefits arising out ofthe transfer of these resources48 However theproposed law does not address the customary rightsof farmers to use save exchange and sell farm savedseeds and propagating material Its Article 7(a)provides that the state shall ensure and protect farmersrsquorights with regard to plant genetic resources49 Thismeans that core of farmersrsquo rights such as their rightsto access seeds are subjected to the discretions of thecompetent authority The right to save use andexchange farm saved seeds in Iraq has to be seen in thecontext of seed production where most seeds comefrom farmersrsquo reserves while the public sector has beenable to fulfil only 4 per cent of the countryrsquos demandfor improved seeds since 200350

It can be argued that farmersrsquo rights if adopted asproposed in the DLPEP will provide little or noprotection to Iraqi farmers Article 7 of the DLPEPdoes not protect farmersrsquo rights to use save andexchange farm saved seeds even though the ITPGRFAdoes not exclude the possibility of recognising suchrights in the national laws of contracting parties51 Itestablishes that lsquo[n]othing in this Article shall beinterpreted to limit any rights that farmers have tosave use exchange and sell farm-saved seed


propagating material subject to national law and asappropriatersquo52 Also it is unclear why the DLPEP linksfarmersrsquo rights to share the benefits of plant geneticresources to the transfer of these resources as potentialusers may or may not need to transfer the accessedgenetic material outside Iraq53

52 Other Entitlements ConcerningPlant Genetic Resources

In Iraq agriculture was excluded from being protectedby intellectual property rights and currently there existsno legal system for the protection of plant varietiesThe 1970 Interim Constitution of Iraq banned privateownership of natural resources54 Intellectual propertyrights in agriculture arose with the policy changes thatfollowed the invasion of the country where strongprotection for plant varieties was introduced and thepatenting of plant genetic resources and enablingtechnologies was permitted This was combined withthe setting new standards on enforcing intellectualproperty rights consisting of civil administrative andcriminal procedures55 Thus one might ask how farfarmersrsquo rights are taken into consideration under thecondition of private property rights It can be arguedthat options adopted by the proposed law to protectfarmersrsquo rights are limited due to the broad protectionof plant patents and plant breedersrsquo rights in Iraq Forinstance the scope of patentable subject matter can beconsidered as significantly broad to include plants andanimals while biological processes for their productionare not excluded under Order 81 from the scope ofpatentability Order 81 allows the patentability of plantsinventions directed to plants (such as plant productsplant cells and genes) and plant varieties Article 2 ofOrder 81 defines the scope of patent protectionproviding that all inventions in all fields of technologythat are industrially applicable novel and involve aninventive step are patentable Also Article 14 of Order81 defines an invention as lsquohellipany innovative idea inany of the fields of technology which relates to a productor a manufacturing process or both and practicallysolves a specific problem in any of those fieldsrsquo56

9

48 DLPEP (n 3) art 7(b)49 DLPEP (n 3) art 7(a)50 FAO Newsroom Rebuilding Iraqrsquos Collapsed Seed Industry

(2005) ltwww faoorg News roomennews2005107246indexhtml gt

51 Gerald Moore Witlod Tymowski Explanatory Guide tothe International Treaty on Plant Genetic Resources forFood and Agriculture (World Conservation Union 2009) 74

52 ITPGRFA (n 1) art 9(2)53 DLPEP (n 3) art 7(b)54 Interim Constitution of Iraq 1970 art 1355 Order 81 on lsquoPatent Industrial Design Undisclosed

Information Integrated Circuits and Plant Varietyrsquo56 Ibid art 14

The recent legislative developments in Iraq willeffectively mean that complex allocation of rights overplant genetic resources could cause conflicts of interestand thereby affect access to these resources Theproposed law recognises plant genetic resources as stateproperty rights and also acknowledges farmersrsquo rights

to these resources57 However simultaneouslyexclusionary intellectual property rights may be takenout on plant genetic resources in accordance with theprovisions of Order 81 There are doubts about the extentto which such conflicting interests would contribute tosustainable agriculture and food security in Iraq


10

57 DLPEP (n 3) art 3

Figure1 Legal status of plant genetic resources and mechanismsfor access to different types of these resources

6CONCLUSION

This paper has analysed key aspects of the DLPEPincluding the coverage of the proposed law access andbenefit sharing provisions implementation agenciesand the different entitlements established in the draft

The broad scope of the DLPEP is no doubt difficultto implement within the current technologicalinstitutional and legal capacities of Iraq While the lawis intended for the implementation of the ITPGRFAits scope of application covers access to plant geneticresources subject to the CBD and to the NP

In fact it cannot be overlooked that the legislator ofthe DLPEP became embroiled in a challenging area oflaw and that the draft provisions barely address thevarious difficulties and implications involved Forinstance the definition of plant genetic resources andgenetic material in the DLPP is imprecise Article 1 ofthe draft does not distinguish between geneticresources and genetic material as it offers one definitionfor both terms This could cause confusion whenapplying the law Moreover although the practices offarming and rural communities reflect a rich agriculturalheritage the DLPEP neither defines traditionalknowledge nor protects such knowledge Iraq is a centreof agrobiodiversity with rich agricultural heritage

The implementation of the ITPGRFA requiresconsidering policy issues relating to food security andsustainable agriculture This consideration should alsofocus on their coherence and the mutual support withthe CBD and NP On this basis once the DLPEP isadopted and entered into force what has beenconsidered a public good in Iraq since the earliest timeswill be divided up into different property rights andwill become the subject of claims of conflictinginterests In particular the DLPEP does not prohibitclaims to intellectual property rights over plant geneticresources accessed for the purposes of the MLS andfor commercial purposes


11

LEAD Journal (Law Environment and Development Journal) is jointly managed by theLaw Environment and Development Centre SOAS University of London

soasacukledcand the International Environmental Law Research Centre (IELRC)

ielrcorg

LEAD Journal (Law Environment and Development Journal)is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the

Law Environment and Development Centre of SOAS University of Londonand the International Environmental Law Research Centre (IELRC)

LEAD is published at wwwlead-journalorginfolead-journalorg

ISSN 1746-5893






ARTICLE



Nihaya Khalaf

TABLE OF CONTENTS

1 Introduction 3





6 Conclusion 10

1INTRODUCTION










3




4 DLPEP (n 3) art 1



21 Derivatives






4













3GRANTING ACCESS








5






24 Ibid









6
















7












8















9









10



6CONCLUSION






11



ielrcorg






ARTICLE



Nihaya Khalaf

TABLE OF CONTENTS

1 Introduction 3





6 Conclusion 10

1INTRODUCTION










3




4 DLPEP (n 3) art 1



21 Derivatives






4













3GRANTING ACCESS








5






24 Ibid









6
















7












8















9









10



6CONCLUSION






11



ielrcorg

TABLE OF CONTENTS

1 Introduction 3





6 Conclusion 10

1INTRODUCTION










3




4 DLPEP (n 3) art 1



21 Derivatives






4













3GRANTING ACCESS








5






24 Ibid









6
















7












8















9









10



6CONCLUSION






11



ielrcorg

1INTRODUCTION










3




4 DLPEP (n 3) art 1



21 Derivatives






4













3GRANTING ACCESS








5






24 Ibid









6
















7












8















9









10



6CONCLUSION






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ielrcorg



21 Derivatives






4













3GRANTING ACCESS








5






24 Ibid









6
















7












8















9









10



6CONCLUSION






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ielrcorg



3GRANTING ACCESS








5






24 Ibid









6
















7












8















9









10



6CONCLUSION






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ielrcorg









6
















7












8















9









10



6CONCLUSION






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7












8















9









10



6CONCLUSION






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ielrcorg









8















9









10



6CONCLUSION






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ielrcorg









9









10



6CONCLUSION






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ielrcorg




10



6CONCLUSION






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ielrcorg




11



ielrcorg



ielrcorg

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