FREE TRADE AGREEMENTS (FTAs) AND UPOV 1991 COMPLIANCE: A POLICY RE-EVALUATION

Protecting Philippine Agriculture While Pursuing Trade Agreements

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The Philippines has legitimate national interests in protecting farmers' seed systems, agricultural biodiversity, indigenous knowledge, and food security. While international trade agreements are important, these objectives should not require the country to adopt legal obligations that reduce its policy space beyond what international law requires.

North-South FTAs serve as the primary mechanism encouraging developing nations to adopt the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV 1991). Trade agreements such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) often include binding commitments requiring members to accede to this specific convention.

However, full accession is neither an absolute prerequisite for international trade participation nor a uniform standard among member states. Notably, New Zealand—a founding CPTPP member—negotiated vital flexibilities during implementation, securing the right to adopt any measures necessary to protect indigenous flora and honor its obligations under the Treaty of Waitangi, even where those measures diverge from UPOV 1991 standards [1]. The Philippines maintains a comparable, compelling mandate to protect its indigenous communities, national biodiversity, and local agricultural sectors.

Because UPOV 1991 remains one of the most contentious international instruments regarding plant variety protection (PVP), numerous signatory states have deliberately refrained from full accession. Ratification is frequently delayed or set aside due to the framework's severe restrictions on traditional seed-saving practices, its potential disruption of domestic seed systems, and substantial public concern.

• CPTPP Precedents: Chile has consistently withheld ratification of UPOV 1991 despite obligations under its FTAs with the United States (2003), Japan (2007), and Australia (2009), as well as its membership in the CPTPP. Similarly, neither Mexico nor New Zealand has acceded to UPOV 1991 under the CPTPP. Given these precedents, the Philippines is under no imperative to rush compliance without thoroughly safeguarding its domestic interests.

• Broader Global Precedents: Other nations have similarly prioritized sovereign development needs over trade-bound PVP mandates. Liechtenstein has not acceded to UPOV despite its EFTA commitments. Colombia has deferred ratification under the US-Colombia Trade Promotion Agreement (in force since 2012), and Nicaragua has not joined UPOV 1991 despite a deadline established under CAFTA-DR over fifteen years ago.

These precedent cases demonstrate that trade obligations must yield to national priorities and sovereign socio-economic needs. Furthermore, treaty commitments are dynamic, positioning the Philippines to strategically advocate for structural flexibilities within trade agreements like the CPTPP as review opportunities arise.

This cautious approach aligns directly with international human rights standards. UN human rights experts—including the Special Rapporteur on the Right to Food and the UN Working Group on the Rights of Peasants—recently issued formal communications to both the European Union and the Philippine Government regarding proposed PVP provisions in the EU-Philippines FTA. They warned that compelling alignment with UPOV 1991 poses serious risks to the right to food by undermining farmers’ customary rights to save, exchange, and sell seeds. Mandatory compliance threatens to erode agricultural biodiversity, constrain national policy space, and disproportionately harm smallholder farmers.

This intervention reflects a consistent consensus among UN experts. UN Special Rapporteur Michael Fakhri explicitly recommended to the UN Human Rights Council that accession to UPOV 1991 should no longer be a prerequisite in bilateral or regional trade negotiations, urging states to remove such mandates from existing treaties. This reinforces earlier findings by former Special Rapporteur Olivier De Schutter, who urged developing nations to resist provisions extending beyond the minimum requirements of the WTO TRIPS Agreement and instead establish sui generis PVP systems calibrated to their own development goals and human rights obligations.

The Philippines must exercise its sovereign prerogative to defend domestic agricultural resilience, ensuring that international trade commitments do not compromise smallholder livelihoods, food security, or national legal flexibility.

[1] New Zealand negotiated these flexibilities to ensure that implementation of its plant variety protection regime would not prevent the Crown from fulfilling its obligations to Māori under the Treaty of Waitangi. The exception preserves the government's ability to adopt measures necessary to protect Māori interests in native (taonga) plant species and to uphold principles of customary guardianship (kaitiakitanga).

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