Prachatai - 23 July 2020
Thai House Committee on CPTPP presses clarification on Thailand official observer status in UPOV
On 22 July 2020, the House of Representatives Committee investigating potential impacts of CPTPP heard report from its Subcommittee on Agriculture following inquiries submitted to the secretariat of UPOV convention regarding legal provisions to prevent impacts on Thai farmers.
Assoc. Prof. Surawit Wannakrairoj, a member of the Agriculture Subcommittee, informed the House Committee about an anomaly on the UPOV website which categorizes Thailand’ status in relation to UPOV as an official “observer” who “has been in contact with the Office of the Union [UPOV secretariat] for assistance in the development of laws based on the UPOV Convention” and hence granted access to observe in the four main bodies of the convention.
Information on the UPOV website clearly define rules governing the granting of observer status to any States if the countries “have officially expressed an interest in becoming a member of UPOV”. Additionally, the Subcommittee was informed by the UPOV secretariat via email communication that an official from the Department of Agriculture (DOA) is identified as the main contact.
Nikorn Chamnong, Vice Chairman of the Agriculture Subcommittee, added that the Subcommittee is concerned whether the Thai government had already submitted its intent to join the UPOV 1991 convention [without informing the public]. Therefore, this matter needs urgent clarification.
Kannikar Kijtiwatchakul, a member of the House Committee, sees this as an extremely irregular practice. In comparison, when the Comptroller General’s Department under the Ministry of Finance wished to become an observer in WTO’s Agreement on Government Procurement (GPA); it had to seek approval from the Cabinet. However, there is no cabinet resolution regarding Thailand’s observer status in UPOV. Accordingly, misconduct by civil servants may be considered.
On the other hand, Thidakoon Saenudom, Director of Plant Variety Protection Research in DOA, maintained that Thailand has not submitted an official intent to join UPOV and the status in question was granted solely by UPOV(‘s decision).
Nonetheless, Kiat Sitteeamorn, House Committee member, stressed that this is a critical matter because this kind of intergovernmental bodies have specific rules or charter governing how to grant a status to any States or organizations. If Thailand never submit its official intent, the Ministry of Agriculture shall inform, in writing, the UPOV secretariat to make correction on the status; the result of which should be reported back to the Committee.
“The Ministry of Agriculture should reflect on its conduct and follow proper practice. This tactic should not be used because in the end it will jeopardize the country’ status.”
Following inquiries the Committee had submitted to the UPOV secretariat, responses on main issues are summarized below:
— On protection coverage: that UPOV1991 would require all new plant genera and species to be protected after 10 years since becoming party to the convention; Special exception cannot be made for sensitive plants varieties which constitute over 65% of agricultural areas of the country (the House Committee refers to rice).
— On farmer’s privilege (e.g. saving seed for further cultivation): UPOV secretariat referred to recommendations from a 2017 diplomatic meeting which contains a great number of terms and conditions; the secretariat’s answer emphasizes on reasonable limitation and protection in accordance with regulations on plant breeders’ rights.
— On requirements: regarding possibility to include information on plant origins when registering new plants; UPOV secretariat responded that this is not possible. Granting plant breeders’ rights shall not entail further requirements beyond what UPOV 1991 has stipulated, i.e. novelty, distinctness, sufficient uniformity, and stability.
— On exemption: whether Thailand could reserve the rights to deny protection of plants varieties which are domestically banned for commercial cultivation (the House Committee refers to genetically modified plants); UPOV secretariat responded that UPOV mandates do not cover market control. However, any control measures shall not affect enforcement of UPOV’s requirements while no further requirement shall be made beyond the four conditions discussed above.
— Additionally, to become a party to the UPOV Convention, Thailand must submit its draft law [on protection of plant variety rights or plant breeders’ rights] to be reviewed by the UPOV Council on conformity to the convention.
With the above-mentioned responses from UPOV, the House Committee member Kiat Sitteeamorn concluded with grave concerns over possible intervention in domestic legislation process; seed exchanges which farmers may not consider it a commercial activity but UPOV may see otherwise; adding that the GMO issue is majorly concerning.