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Promote and Protect Farmer Seed System for Agricultural Biodiversity and Food Security: SEARICE Statement for the CSO Consultation on the Right to Food

Seeds are the source of food and livelihood of small farmers. Small food producers like the farmers, especially in developing countries, operate within an informal seed system. Farmers save, re-use and exchange seeds with other farmers, and this has sustained their agricultural production and contributed to crop diversity ever since agriculture begun.

1We emphasize the direct contribution of biodiversity to food security, nutrition and well-being. It provides a variety of food sources of a range of nutritional requirements, and provides a safety net to vulnerable households in times of crisis. Diverse farming systems contribute to more diverse diets to communities that produce their own food, thus improving nutrition, and providing solutions to malnutrition.”

We wish to build on this universal context of the farmer seed system and its vital role in ensuring agricultural biodiversity which is recognized by the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). Likewise, we support the recommendations of the former Special Rapporteur on the Right to Food, Olivier de Schutter in his Final report: The transformative potential of the right to food[2].  We give particular attention to the general recommendations[3] of the said Report on which we are able to put forward specific recommendations drawn from our site-specific experiences in engaging with farmer organizations and networks from CSOs and government agencies at the local, national and international level.

1. State Obligation to Protect, Promote and Fulfill the Right to Food and the Implementation of Farmers’ Rights. Outside of the UN system, the attributes of the informal seed system of farmers have been translated into formal legal entitlement through the Farmers’ Rights provided under the ITPGRFA. These rights are: right to equitably participate in sharing benefits; participation in decision-making; protection of traditional knowledge; and the right to use save and exchange seeds. However, these rights only relate to the plant genetic resources, and their implementation is left to the national governments of the contracting parties with no specific provisions under the Treaty on the remedies in case of its violation. It was noted that “these so-called farmers’ ‘rights’ remain rights without remedies: they are rights only by name. The provision remains vague, and implementation of this provision is highly uneven across the States parties. This is in sharp contrast with the enforcement, at international level, of plant breeders’ rights and biotech-industry patents. Furthermore, there exists no forum in which the implementation of farmers’ rights in various settings is discussed, in order to provide benchmarks and examples of good practices which Governments could seek inspiration from[4]

We therefore recommend the immediate signing of the proposed Executive Order PROVIDING FOR THE COLLECTION, CHARACTERIZATION, CONSERVATION, PROTECTION, AND SUSTAINABLE USE OF PLANT GENETIC RESOURCES FOR FOOD AND AGRICULTURE, APPROPRIATING FUNDS THEREFORE AND FOR OTHER PURPOSES. The proposed draft was drawn from the 2-year-long meetings and consultations with key stakeholders. It provides among others that the Department of Agriculture, with the participation of relevant government agencies, farmers’ organizations and other stakeholders, shall conduct a review of laws, policies, rules and, regulations relating to plant genetic resources, including seed regulations, to determine if they are consistent with Farmers’ Rights and recommend such actions as may be needed to amend or modify them. The review shall include recommendations on how to address violations of Farmers’ Rights, including the imposition of penalties[5]. This will actualize the state commitment to implement the Farmers’ Rights at the national level and it will set into motion the review of existing policies that runs contrary or is not supportive of the protection of farmers’ rights. Moreover, it will be consistent with the call for the swift implementation of farmers’ rights.

At the local level, local governments units (LGUs) promoting sustainable agriculture through adoption of organic farming practices, establishment of seed banks to conserve and manage farmer-bred and traditional seed varieties for local food security should be promoted by the national government. These practices enhance the functioning of the farmer seed system, thereby ensuring the availability, accessibility, and adequacy of seeds. Ultimately, it ensures the agricultural biodiversity and food security of the local communities. Municipalities like Arakan and Clarin in Mindanao and Calasiao, Pangasinan in Luzon have invariably drafted local ordinances that support and institutionalize farmers’ rights and the accompanying support system for their realization such as proposal to establish seed banks and seed registry for farmer-bred varieties and traditional varieties.

2. Promoting Innovations and Incentives on Plant breeding and the De Facto Exclusion of Farmers.

2.1 The Philippine Plant Variety Protection Act of 2002 (Republic Act No. 9168) provides protection to new plant varieties in the Philippines, as part of the country’s compliance with its commitments under the WTO-TRIPS. It follows the same requirements for protection, terms of protection, and scope of breeders’ rights as the UPOV 1991 Act, but differs in that it provides for a non-optional exception in favor of the traditional right of small farmers to save, use, exchange, share or sell their farm produce of a protected variety (with certain exceptions and conditions), a gene trust fund, and a community registry, among others[6].

A Human Rights Impact Assessment (HRIA) on the specific provision[7] of PVP Act of 2002, which is very similar to UPOV 91, indicated that the following results:

1.  It could negatively impact the functioning of the informal seed system. Its restrictions on the use, exchange and sale of farm-saved PVP seeds would severely affect the positive linkage between the formal and informal seed systems, and make it harder for resource-poor farmers to access improved seeds. Moreover, selling seeds (including those protected by PVP laws) is an important source of income for many farmers. From a human rights perspective, restrictions on the use, exchange and sale of protected seeds could therefore adversely affect the right to food, as seeds might become either more costly or harder to access.

2. Restrictions on the use, exchange and sale of farm-saved seeds might lead to fewer options for farmers, who then become increasingly dependent on the formal seed sector. Improved varieties, however, often require more inputs compared to local farmers’ varieties, pushing up production costs. In the case of varieties protected in line with UPOV 91, seed costs drive up production expenses even further. From a human rights perspective, higher production costs pose a risk to cash-strapped farmers by destabilising their household budget. This could negatively impact a range of human rights, by reducing the amount of household income available for food, healthcare or education.

3. Furthermore, there have been indications that several UPOV-related provisions could undermine other public interest policies and processes by negatively impacting the state’s ability to comply with other international legal obligations (for example under the Convention on Biological Diversity or the International Treaty on Plant Genetic Resources for Food and Agriculture) or national policies.

4. In conclusion, the research provides clear evidence on potential human rights impacts and further areas of concern  that should be carefully considered when designing and implementing PVP laws. The findings of the impact assessment showed (i) strong dependence of small-scale farmers on informal seed systems in developing countries, (ii) the threat to the enjoyment of the right to food when access to seeds of protected varieties is restricted, and (iii) the increasing malfunctioning of the informal seed system as the result of stringent laws including UPOV 91-style PVP laws on seeds

Relevant recommendations of the study to the Philippine Government are as follows:

• undertake an HRIA before drafting a national PVP law or before agreeing to or introducing intellectual property provisions in trade and investment agreements in the area of agriculture

• improve the linkages between the formal and informal seed systems and apply a differentiated approach to PVP for different users and different crops

• ensure that governments abide by a transparent and participatory process that includes all potentially affected stakeholders when drafting, amending or implementing PVP laws and related measures

• inform government agencies and others involved in seed policy about their obligations concerning the right to food

• identify what accompanying measures may be necessary for new PVP-related laws, and implement them, including measures to mitigate and remedy any potential adverse impacts of the PVP-related laws on human rights or on the informal seed sector

• monitor the impact of PVP laws on the right to food, with particular attention to ways in which PVP-related laws or policies impact different segments of the population

2.2 Quality Seeds for Farmers through Seed Certification. The Seed Industry Development Act of 1992 (Republic Act No. 7308) seeks to promote and accelerate the development of the seed industry, including the conservation, preservation and development of PGRs of the Philippines. A key policy objective of this law is to promote the development of quality seeds and encourage private breeding through incentives. Seeds to be certified as “quality seeds” have to undergo the certification process, the cost of which is prohibitive for small farmer-breeders for the testing of the varieties that they have bred. This was aired by farmer-breeders during the Farmer-Breeder Conference conducted by SEARICE last December 2014. A farmers group in Calasiao, Pangasinan, on the other hand, lamented that even though they have produced surplus of local varieties that they have bred and developed, the local government could not procure the seeds that they have produced since there is a standing government guideline to procure only certified seeds, otherwise, it will be disallowed by government auditor. Thus, this has the effect of de facto exclusion of farmers from market access and to the incentives provided under the law, and ultimately, on their economic right to livelihood and their right to food in the context of having means to access it.

Although we find it commendable that the Department of Agriculture came out with a Guideline on the Implementation of Community-Seed Banks, which recognize an equivalent quality control for seeds produced by farmers, we recommend the review and/or amendment of existing seed certification laws/standards to incorporate and allow for local (i.e. provincial or regional) mechanisms to recognize and certify farmer-developed rice varieties.

3. Genetically Modified Organisms (GMO) and Food Availability and Access:

 1) FARMERS’ ACCESS TO TRADITIONAL VARIETIES DIMINISH: In the Philippines, the introduction of GMO crop like Bt Corn has significantly reduced the availability of and access of farmers to various conventional or traditional varieties. In Candon City, Ilocos Sur, most corn farmers are using Bt Corn because this is the only available variety in the market. Farmers claimed that they are having difficulties in finding the usual conventional and native varieties that they plant in their farms.

2) LIMITED INFORMATION ABOUT GMOs: Farmers have little or no information about the GMO crops that they are planting. In the Philippines, there are farmers who claimed that they don’t know that Bt Corn is a genetically modified variety or what GMOs are in general. They were only informed that Bt Corn is a new variety that will address pest control problems, particularly the corn borer.

3) FARMERS COULD NO LONGER SHARE OR EXCHANGE SEEDS TO OTHER FARMERS: Sharing and exchanging seeds among farmers have been a universal practice among farmers for centuries as part of the cultural and traditional knowledge of farming communities. With GM crops replacing native or traditional varieties in the market, farmers can no longer share or exchange seeds because GM crops are protected by patents.

We recommend the following:

1. Review EO 430 and the Philippine Bio-safety Guidelines.

The mandate of the NCBP, emanating from EO 430, should be reviewed. The leadership role played by the DOST in this policymaking body should be re-considered in view of the fact that the agency’s flagship programs are centered on modern biotechnology. The National Committee on Biosafety of the Philippines (NCBP) has not been up to task in performing its duty to raise public awareness on the issues and development of genetic engineering, as mandated in Executive Order 430. It has instead concentrated its efforts in processing and approving applications of field trials of genetically engineered crops like Bt Corn, Bt Eggplant and Golden Rice.  Issues in public participation on biosafety regulations, accountability and transparency should have primacy in the review process. Tthe Philippine Biosafety Guidelines should likewise be reviewed, in light of the recent developments in genetic engineering worldwide and the coming into force of the International Biosafety Protocol under the Convention of Biological Diversity (CBD).

Finally, we support the passage of House Bill 3795[8], also known as the Right to Adequate Food Framework Act of 2014 since it will provide among others a comprehensive framework to ensure the right of every Filipino to access adequate food at all times. On this note, we wish to underscore the need to incorporate agricultural biodiversity in measures to address hunger, poverty and nutrition.

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[1] SEARICE is a  regional non-government organization that promotes and implements community-based conservation, development and sustainable use of plant genetic resources in partnership with civil society organizations, government agencies, academic research institutions and local government units in Bhutan, Lao PDR, Philippines, Thailand, Vietnam, Cambodia and Timor Leste.

[2] A/HRC/25/57 , Final report: The transformative potential of the right to food, Report of the Special Rapporteur on the right to food, Olivier De Schutter, UN Human Rights Council, 25th Session, 24 January 2015available at  http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session25/Documents/A_HRC_25_57_ENG.DOC

[3] The following are the key recommendations on Seeds

(a) Make swift progress towards the implementation of farmers’ rights, as defined in article 9 of the International Treaty on Plant Genetic Resources for Food and Agriculture;

(b) Not allow patents on plants and establish research exemptions in legislation protecting plant breeders’ rights;

(c) Ensure that their seed regulations (seed certification schemes) do not lead to an exclusion of farmers’ varieties; and

(d) Support and scale up local seed exchange systems such as community seed banks and seed fairs, and community registers of peasant varieties.

[4] A/64/170, interim report of the Special Rapporteur on the right to food, Olivier De Schutter, submitted in accordance with paragraph 36 of General Assembly resolution 63/187 available at  http://ap.ohchr.org/documents/alldocs.aspx?doc_id=15881

[5] The draft Executive Order was formulated by the Technical Working Group for the ITPGRFA under the Department of Agriculture. SEARICE is a member of the TWG

[6] Chirisgel Rayan Cruz, Exploring the Legal Terrain for Farmers’ Rights Advocacy and Plant Genetic Resources Conservation, Development & Use,SEARICE Review, December 2009 p. 7

[7] Section 43d of the PVP Act defines the exceptions to plant variety protection: “The traditional right of small farmers to save, use, exchange, share or sell their farm produce of a variety protected under this Act, except when a sale is for the purpose of reproduction under a commercial marketing agreement. The Board shall determine the condition under which this exception shall apply, taking into consideration the nature of the plant cultivated, grown or sown. This provision shall also extend to the exchange and sell of seeds among and between said small farmers: Provided that the small farmers may exchange or sell seeds for reproduction and replanting in their own land.”

[8] Filed by  Akbayan Representatives Barry Gutierrez and Walden Bello, together with Dinagat Representative Kaka Bag-ao and Quezon City District 6 Representative Kit Belmonte