The study explains in particular the different forms of legal protection
required by international IPR agreements, including the system of plant
breeders' rights in the 1978 and 1991 UPOV Acts, the choice between patent and
sui generis protection created by article 27.3(b) of the TRIPs Agreement and the
impact of so-called "TRIPs plus" bilateral and regional treaties.
It analyses the alternatives available to a state depending upon the different
IPR treaties it has ratified. Each of these treaties grants national governments
a different level of discretion to choose how to protect plant varieties as a
form of intellectual property. Once a government has consulted this study to
determine the degree of discretion it enjoys as a result of its treaty
ratifications.
It can then review those portions of the study that identify the mechanisms that
it may adopt, consistent with its international obligations, to balance the
protection of IPRs against other societal objectives. Governments interested in
retaining discretion would be advised to monitor and participate in these
negotiations, with a view to harmonizing their international obligations,
thereby avoiding the necessity of turning to international tribunals to settle
their disputes.
Introduction
According to FAO survey of the Horticulture sector the total orchards /vineyards
areas by years 1996 and 2003 are shown around 109 900 and 79 800 hectare
respectively. In the 1970s dried fruit, raisins and nut contributed more than 40
percent of the country's foreign exchange earnings, but recently because of
prolonged war and conflict, the country has lost some of its former market
niches.[1]
A wide variety of vegetables including potatoes and onions are cultivated
throughout the country. The different varieties of melons are also famous. Over
80 percent of the population is dependent on the agricultural and livestock
management sector Agricultural land is estimated to be 7.8 million hectare (12
percent of the total land area) of which 3.3 million ha is irrigated and 4.5
million ha is rain fed cropping.[2]
There is two farming systems exist:
- A mixed crop and livestock
- Migratory pastoral system
Wheat is the main staple food crop in Afghanistan cultivated by almost all
farmers using both irrigated and rain fed land. All farming activities (farming
areas and yields) are susceptible to seasonal conditions (availability of
rainfall and irrigation water) shows the difference of wheat yields and areas
between the years 2002 (drought year) and 2003 (year of sufficient
precipitation).[3]
On average, per capita consumption of wheat is 152 kg per year.[4] It is
estimated to be among the highest in the world. Rice, Maize and Barley as the
main cereal grains and some other high - value crops such as cumin, sesame,
linseed, sugar cane, cotton and sugar beet are cultivated where appropriate.[5]
It is to be noted that wheat, cereals and high - value crop production is
largely focused on home and somewhat local markets consumption rather than
export. Afghanistan's economy is largely supported by sales of quality fresh and
dry fruits. The main fruits and nuts such as grapes, mulberry, pomegranates,
apples, apricots, cherry, almonds, walnuts and wild pistachio are found in
Afghanistan.[6]
Land Cover and Biodiversity
The plant cover of Afghanistan has been influenced highly by diverse ecological
conditions, ranging from barren deserts (sand dune areas),[7] to sub-tropical
regions to steppes (the most important grazing areas), to the river valleys
(areas of tugai vegetation and cultivated fruit orchards), to the higher
mountains including areas of semi desert.[8]
Thus, the precipitation and altitude are the main factors resulting in the
diversity of the country's flora. A limited part in the south east which belong
to the sub- tropical zone, receive the impact of the Indian monsoons. The divers
ecological conditions in Afghanistan have favored the establishment of a complex
and varied floral compositions. Groombridge (1992) give an estimate of 3500
species of vascular plants and 30-35% of endemic. Some other estimation shows
the number of plant species to be about 5000.[9]
In Situ Conservation of Plant Genetic Resources
Due to the last three decades of war condition coupled with a six year long
drought the agriculture sector in Afghanistan has been greatly damaged and that
way its products have decreased by 50 percent (US Bereau of the Census,
1998).[10] To compensate for this loss, rural people have started to utilize the
free natural resources.
Smuggling of timber deliberate burning of forests, overgrazing, cutting of
woodland, uprooting of medicinal plants and conversion of rangeland to rainfed
cropping became the daily business of the people. This is an excessive removal
or extermination of some species indigenous or endemic to Afghanistan.[11]
The coniferous and Oak forest in the south east, and pistachio forests in the
north which covered 1.3 million (FGP1971) and 450 000 ha of land (UNCCD Report,
2006) decreased by 50%) and 50-70 percent respectively (UNeP2002). Vegetation of
deserts, steppes and mountainous areas,[12] covering 70 percent of the total
land area, because of extraordinarily strong exploitation decreased by 45
percent (UNCCD 2006). If the situation continues in the same way, Afghanistan
will lose some of its valuable wild plant genetic resources in the near future.8
In their natural habitat even now the following plant species are endangered:
- Cedrus Deodara
- Taxus Baccata,
- Pistcia Vera
- Pinus Gerardiana,
- Glycyrrhiza Globra,
- Ferula Asafetida,
- Carum Carviet.
Prior to the war some of these wild tree species such as pistacia vera and
Pinus gerardiana stands were consciously protected because their seeds were used
by the local people but even exported in remarkable quantities. In the late
1970s, due to the food requirements, Afghanistan was almost self-sufficient.[13]
This country has imported only 2500 tons of improved seeds for research
purposes.[14] There were several agricultural research stations in the different
agro-ecological zones, which provided farmers with high-yielding and
disease-resistant varieties of seeds and saplings. During the civil war, there
already existed eleven research stations and gene banks, where about 1770
samples were stored and these have been completely looted.[15]
Nothing of the farmer research programs remained. In addition; in that time
there has been a greater interest to protect forests, wetlands and habitat rich
in biodiversity. Some habitat of particular importance has been selected and
proposed as protected areas of nature reserves. [16]Some steps forward have been
taken to be officially recognized, but because of political instability and
social disorders through those years, this work could not be completed.[17]
Recently once again some sites were designated as national parks/ protected
areas, aiming at conservation biology (in situ conservation of plant genetic
resources). The ecological characteristic of these sites are summarized as
follows: [18]
Big Pamir:
Gazette as protected area/ nature reserve. This is a mountainous area with many
glaciers and lakes, covering an area of 67 938 ha. It supports alpine vegetation
such as different species of the family of Ericaceae, many types of grass and
outstanding vegetation of Primula macrophyte.[19]
Ab-i- Estada:
A large lake of 27 000 ha. It is surrounded by arid highland steppes, which are
dominated by the vegetation of Amygdalus spp, Cousinia spp, Tamarix spp and
Artemisia spp.[20]
Ajar Valley
Proposed as National Park/Nature reserve, covering an area of 40 000 ha. This
valley supports different vegetation of Salix spp, Tamarix spp, Herbaceous
plants, Ephedra spp, Zygophyllum, Acantholimon steppe, and Carex stenophylla
meadows communities. This is an important grazing area for ibex and urial.[21]
Bande Amir
Designated as National Park. A chine of 6 lakes, interconnected by calcium
carbonate dams, occupies an area of 41 000 ha. Its surrounding area has the
vegetation of Salix spp, Mentha longifolia, Acantholimon community, Tulipa spp,
Alliums pp, Gagea spp, and Ranunculus sp.
Hamun-i- Puzak
Designated as Nature Reserve, large permanent lake, in the flat Seistan basin,
covering an area of 35 000ha. The lake is covered with reed beds ( Phragmites
australis) and algae, which is used by a large number of migratory waterfowl. In
its surrounding areas, different vegetation of Artemisia and Tamarix occur.[22]
Nurestan
Designated as National Park/Nature Reserve. This is a mountainous area with an
elevation of up to 6 300 m, supporting various plant species of Juglans, Betula,
Quercus, Cedrus, Pinus, Juniperus and Alpine shrubland.[23]
Dashte Nawar
Designated as Flamingo and waterfowl sanctuary/Nature Reserve. It covers an area
of 7 500 ha. The plain is covered with a highland steppe, rich in grasses such
as Bromus, Puccinellia, Aeluropus, Herbaceous plant and Acanthelimon community (Glaux
maritima, Crypsis aculeate, Polygonum sibericum). The lake itself has a dense
cover of algae.[24]
The selection of these areas was based on uniqueness, richness in species and
type of ecosystems etc. [25]the environment law support the establishment of
protected areas for conservation of genetic resources. It should be noted that
several crops used in Afghanistan include a range of primitive varieties, which
yield less but are adaptable to the harsh ecological condition of the
country.[26]
In situ conservation (National parks) means that they may provide valuable
material for the genetic improvement of their subsequent generation.[27] Some
plant species whose wild ancestors are found in Afghanistan are pistacia spp,
Pyrus spp, Malus spp, Prunus spp, Amygdalus spp and cereals- Triticum, Oryza
etc.[28]
These species grow in different places and are in a state of extinction. It is
foreseen that the National Parks and Reserves will save all varieties (fruits,
nuts, cereals and important genotypes of wild plants species),[29] which have
medicinal, nutritious and economical worth. Furthermore in the rural areas many
of these wild plant species are cooked and used for eating.
Finally, The former Ministry of Agriculture, Irrigation and Livestock (MAIL) the
present regime still has dilemma[30] with international organisation to manage
the above mentioned national parks and natural reserves.[31] It is foreseen that
the management of some national parks and nature reserves such as Big Pamir,
Dara -e- Ajar, Band-e- Amir and Norestan will be assisted by an International
Agency called Wild Life Conservation Society (WCS).[32]
The Perennial Horticulture Development Project (PHDP) which is funded by the
European Union began the germ plasm collection programmed in July 2006,[33] with
a review of location of germ plasm resources.[34] The objectives of the
programme are collection of varieties of fruits and nuts that are produced by
commercial nurseries in the country.
The objective of the program is: The preservation, promotion and the use of the
most relevant local genotypes Reducing the risk of erosion by establishing in
situ collection (original sites of the plant) and ex situ collection or field
gene bank.[35]
Conclusion
The genetic diversity inherent in living systems makes patent claims difficult
to defend. The development of genetically uniform organisms would make it easier
for corporations to maintain their patent claims. Biotech companies holding
broad spectrum patents on food crops will lure farmers to grow modified
varieties with promises of greater yields and disease resistance.
However, numerous examples worldwide show the improved crops have failed to hold
up to corporate promises, and led to the loss of the rich diversity of
traditional crop varieties. First World patenting of Third World genetic
resources represents theft of community resources.
Patents held by the industrialized world on resources from the developing world
will serve as a tool for the North to accumulate more wealth from the already
economically impoverished South. Microorganisms, plants, animals and even the
genes of indigenous people have been patented for the production of
pharmaceuticals and other products.
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End-Notes:
- www Org/Jef, Sayed Qudrat Hashimy & Jackson Magoge, Role of WTO in the
Promotion of Trade and IPR in Afghanistan, Volume 7 1 (2022).
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(last visited Feb 8, 2023).
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(last visited Feb 8, 2023).
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Few Intellectual Property Rights in Afghanistan, 94 (2021), https://papers.ssrn.com/abstract=4291992
(last visited Feb 8, 2023).
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(last visited Feb 8, 2023).
- Sayed Qudrat Hashimy, Protecting Geographical Indications in
Afghanistan, (2022), https://papers.ssrn.com/abstract=4324242 (last visited
Feb 8, 2023).
- Org/Jef, Hashimy, and Magoge, supra note 1 at 23.
- Hashimy, supra note 4.
- Id.
- Sayed Qudrat Hashimy, War Crimes in Afghanistan, (2022), https://papers.ssrn.com/abstract=4344441
(last visited Feb 8, 2023).
- Sayed Qudrat Hashimy, Protecting Geographical Indications in
Afghanistan, (2022), https://papers.ssrn.com/abstract=4324242 (last visited
Feb 8, 2023).
- Abdoul Niane et al., National catalogue of wheat varieties in
Afghanistan, (2020).
- Hashimy, supra note 6.
- Org/Jef, Hashimy, and Magoge, supra note 1.
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(last visited Feb 8, 2023).
- Sayed Qudrat Hashimy, Recognition and Legitimacy of the Taliban
Government: A Conundrum in International Law, 26 Journal of International
Issues 1 (2022).
- Hashimy, supra note 10
- Study of Genetic Diversity of Sheep Breeds in Afghanistan – Biosciences
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(last visited Feb 8, 2023).
- Sowing the wheat seeds of Afghanistan's future - Poole - 2022 - PLANTS,
PEOPLE, PLANET - Wiley Online Library, https://nph.onlinelibrary.wiley.com/doi/10.1002/ppp3.10277
(last visited Feb 8, 2023).
- Org/Jef, Hashimy, and Magoge, supra note 1.
- "World's least known bird" found breeding in Afghanistan, Reuters, Jan.
18, 2010, https://www.reuters.com/article/us-bird-afghanistan-idUSTRE60H06B20100118
(last visited Feb 8, 2023).
- Sayed Qudrat Hashimy, China's Belt-Road Initiative and Investment
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(last visited Feb 8, 2023).
- Hashimy, supra note 4 at 15.
- Id. at 56.
- Sayed Qudrat Hashimy, China's Belt-Road Initiative and Investment
Strategies: A Two Pillar Approach to Afghanistan, 12 International Journal
of Science and Research (IJSR) 449, 444 (2023).
- Org/Jef, Hashimy, and Magoge, supra note 1 at 9.
- Niane et al., supra note 12.
- Hashimy, supra note 4 at 15.
- Hashimy, supra note 11 at 34.
- Sayed Qudrat Hashimy, Recognition And Legitimacy of the Taliban
Government: A Conundrum in International Law, (2023), https://papers.ssrn.com/abstract=4150964
(last visited Feb 8, 2023).
- Org/Jef, Hashimy, and Magoge, supra note 1.
- Hashimy, supra note 11 at 11.
- Hashimy, supra note 25.
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- Deepak Tripathi, Breeding Ground: Afghanistan and the Origins of
Islamist Terrorism (Illustrated edition ed. 2011).
Written By:
- Mohammad Rasikh Wasiq
- Sayed Mahdi Sadat Nasiri
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