Article 11 – Coverage of the Multilateral System
The Multilateral System having been established in Article 10, Article 11 establishes its scope. After much debate, it was agreed that while the scope of the Treaty in general would be “PGRFA” (as defined in Article 3), the multilateral system would only apply to PGRFA of a specified list of crops, chosen because countries' interdependence on them and their importance for food security. This is partly because some countries wanted to see how benefits would flow under a limited multilateral system before committing themselves to a wider coverage. It was also because some countries wanted to limit the application of the multilateral system so as to allow for bilateral arrangements for access and benefit sharing of other PGRFA.
11.1 In furtherance of the objectives of conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of benefits arising out of their use, as stated in Article 1, the Multilateral System shall cover the plant genetic resources for food and agriculture listed in Annex I, established according to criteria of food security and interdependence.
Article 11.1 states that the multilateral system will cover the PGRFA listed in Annex I.
It also states that the list in Annex I is “established according to criteria of food security and interdependence.” This reflects a historical statement referring to the way in which the list was put together. A first draft list was indeed proposed on the basis of the importance of the crops to food security and interdependence, although it was negotiated by States on the basis of other factors too. But as a historical statement, the phrase is of limited legal importance. The list has been established, and it is the list that governs whether a crop is within the Multilateral System or not. The statement of the basis on which the list is elaborated will however have legal import in the interpretation of the list and more particularly in considering future amendments to the list. These, under Article 23 and 24, must be adopted by consensus of the Governing Body. But the phrase “established according to criteria of food security and interdependence” gives criteria as to the crops that can, or should be included into the list in the future. Similarly, the introductory phrase to Article 11.1 (“In furtherance of the objectives of conservation and sustainable use of PGRFA and the fair and equitable sharing of benefits arising out of their use, as stated in Article 1”) provides not only an explanation of how the list was put together and a tool for interpretation, but also a yard stick for future amendments, and good grounds on which new additions to the list may be put forward.
One of the criteria for the establishment of the list is “food security”. The term “food security” has been defined in the World Food Summit Plan of Action. The introduction to the GPA states that it has to be considered “at the individual, household, national, regional and global levels. Food security exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life”. More specifically, Objective 2.3 states that food supplies should be “safe, ... appropriate and adequate to meet the energy and nutrient needs of the population”.
According to this agreed definition, food security has to be considered not only at a global level, but also at a regional and local level. Many minor crops, for example, are staple crops for populations regionally or locally. Importantly in this respect, Annex I to the Treaty includes taro, coconut, yam and grass-pea, staple crops of importance only for specific regions. In light of the criterion of “food security”, Annex I should take into account a qualitative component. Some crops may bring rare aminoacids, rare lipids, vitamins, minerals, or any nutritional factor facilitating digestion or maintaining health by having bactericidal or vermifuge properties. Such a qualitative approach would suggest the inclusion of most fruits and nuts, as well as herbs and spices. Nevertheless, it is widely recognized that food security depends on a wider range of plant species that can be accommodated on any manageable list.
Annex I was the subject of substantial scientific input from experts through forums such as technical workshops and groups of experts. Nevertheless, the initial negotiating position of regions had some wanting as few as 6 crops for the multilateral system, while another pushed for more than 400. As the list was to be agreed “by consensus,” negotiations began with the list of 6 crops and expanded largely as a result of countries' becoming convinced of the need to include more crops, including many of interest to the CGIAR within the Multilateral System. Ultimately, the Contracting Parties agreed that Annex I would include some 40 or so crops99 and 29 forage species (see Annex I). Nevertheless, soybean, groundnut, oil palm, flax, sugarcane, tomato and most tropical forages are excluded from the system. Moreover, certain species that are part of the genepool used by breeders of cassava, maize, potato and common beans are also excluded. The list does not include industrial crops such as tea and coffee, which thus fall totally outside the Multilateral System.
In addition to the problem of which crops to include, negotiators faced the related problem of how to define each crop in operational terms such that Contracting Parties and other actors might know, with certain precision, what fell within the scope of Annex I. There was never any doubt that wheat would be included in the multilateral system. But, what, precisely, does “wheat” really mean? Panels of experts provided scientific information on these and other questions (such as which forage species are most important to food security). In the end, negotiators listed crops, often as much on the basis of political as scientific criteria, including indicative genus/genera, noting whenever a particular genus or species was excluded.
In some cases, negotiators decided to exclude specific species associated with a crop, and in some cases the excluded species are ones typically considered part of the genepool that a breeder might use or want access to. Two examples would be Phaseolus polyanthus and Solanum phureja. The definition of cassava includes Manihot esculenta only, thus wild relatives now being used to increase protein content and improve disease resistance, are excluded from the Multilateral System. Finally, some definitions are simply ambiguous. For example, “Wheat” is included in Annex I, but defined as “Triticum, et al.”. The meaning of “et al.” is left unclear. Additions and exclusions to Annex I can be made by consensus by the Governing Body. The extent to which the list is changed in the future will depend on the experience of countries in the initial running of the Multilateral System, including in particular the extent to which real benefits are perceived to flow under the System.
Importantly, in defining the coverage of the multilateral system, Article 11 makes no distinction between pre-existing material held and material acquired after entry into force of the Treaty. Material collected before, and after, entry into force of the CBD are also treated equally. In this way, only for PGRFA crops included in Annex I, Article 11 of the Treaty was intended to resolve the status of those ex situ collections that were not “acquired in accordance with the CBD”, as requested in the Nairobi Final Act. Other aspects are clarified in Article 15.
Aside from its substantive content, the text of Annex I is less than clear in certain regards, reflecting the state of biological science and changes in knowledge over time. For example, the Treaty acknowledges only implicitly the fact that taxonomists and breeders disagree about what is included within a particular crop gene pool. Knowledge of such groupings changes over time. It is questionable whether the materials under the Multilateral System will expand and contract as taxonomic understandings of what constitutes a particular genus evolve. Assuming that the Governing Body will not want to undertake the cumbersome and costly task of constituting its own taxonomic authority, on what basis will Contracting Parties and centres decide whether questionable categories/materials are included or excluded? Practically speaking, how would the Treaty handle cases where materials considered today to be part of Annex I, fall off the list by virtue of changes in taxonomic practices?
11.2 The Multilateral System, as identified in Article 11.1, shall include all plant genetic resources for food and agriculture listed in Annex I that are under the management and control of the Contracting Parties and in the public domain. With a view to achieving the fullest possible coverage of the Multilateral System, the Contracting Parties invite all other holders of the plant genetic resources for food and agriculture listed in Annex I to include these plant genetic resources for food and agriculture in the Multilateral System.
11.3 Contracting Parties also agree to take appropriate measures to encourage natural and legal persons within their jurisdiction who hold plant genetic resources for food and agriculture listed in Annex I to include such plant genetic resources for food and agriculture in the Multilateral System.
11.4 Within two years of the entry into force of the Treaty, the Governing Body shall assess the progress in including the plant genetic resources for food and agriculture referred to in paragraph 11.3 in the Multilateral System. Following this assessment, the Governing Body shall decide whether access shall continue to be facilitated to those natural and legal persons referred to in paragraph 11.3 that have not included these plant genetic resources for food and agriculture in the Multilateral System, or take such other measures as it deems appropriate.
Originally it was the intention of many of the negotiators to include all listed PGRFA in the Multilateral System and not just those under public management and control and in the public domain. It was thought by these negotiators that this would be simpler and would eliminate the need for contractual MTAs to accompany accessions obtained from the Multilateral System thus reducing transaction costs. The obligations under the Multilateral System would then need to be enforced through national policy or legislation. A number of countries, however, believed that it would be necessary to limit the obligations of Contracting Parties to material under their control and for which they were responsible as well as to materials placed voluntarily in the Multilateral System, and that the obligations attached to the accessions obtained from the Multilateral System would need to be passed on through some form of contractual instrument. In the end, and rather late in the negotiations, it was the latter view that prevailed. Once a contractual approach was agreed for Article 13.2(d)(ii), the limitation of the Multilateral System to materials under public management and control and in the public domain became inevitable. Indeed many governments felt that legally they could only commit to contractual conditions concerning PGRFA under their management and control and in the public domain, or PGRFA voluntarily placed in the Multilateral System by their holders: to purport to deal with all material subject to the property rights of individual natural or legal persons within their jurisdiction would, in their view, be to deprive those persons of some elements of those rights.
Article 11.2 thus states that the multilateral system includes “all PGRFA listed in Annex I that are under the management and control of the Contracting Parties and in the public domain”. In this connection it should be noted that, according to the first Report on the State of the World's Plant Genetic Resources for Food and Agriculture, some 88% of global PGRFA held ex situ is indeed maintained in national collections.
The expression “under the management and control” of a Contracting Party is a factual as well as a legal qualification. If the collection is actually managed and controlled by the Contracting Party, then this qualification is met: if on the other hand the collection is managed and controlled by a separate entity over which the State does not have any control, then the qualification is not met. The issue may become more significant in countries that have a federal system and where genebanks are under state or provincial control, or in other countries where genebanks have been set up as public entities outside the government's direct control. In such countries, it would appear that such collections are not prima facie covered, and the extension of the system to cover those collections would need to take place with the consent of the institutions concerned. This is provided for under Article 11.3 of the Treaty.
The expression “in the public domain” is a qualification of a legal nature. The term “public domain” means either public property or, in intellectual property law, materials which are not protected by intellectual property rights. In the present context, the expression “in the public domain” clearly has the latter meaning. This is not to say that the Multilateral System cannot include material that is protected by intellectual property rights. Such material can, of course, always be included in the Multilateral System voluntarily by the holder of such rights under Article 11.2. But those PGRFA are not automatically included within the purview of the Multilateral System.
The Multilateral System thus essentially applies to plants, seeds, cuttings, etc. that are managed and controlled by governments of Contracting Parties and free from intellectual property rights. This would exclude all provincial government, public (non-governmental) entity and private holdings of plant genetic resources, and any material over which intellectual property rights are claimed. As property rights in the material found in the collections are to be respected (see Article 12(3)(f)), a number of delegates thought these additional restrictions were unnecessary. However, the limitation is balanced by four provisos:
First, all other holders of PGRFA listed in Annex I are invited to include those genetic resources in the Multilateral System, with the aim of achieving the fullest possible coverage of the multilateral system (Article 11(2));100
Second, parties agree to take measures to encourage natural and legal persons under their jurisdiction to include in the multilateral system the listed PGRFA that they hold (see Article 11(3));
Third, there is a built-in review by the Governing Body to assess progress on including PGRFA held by natural and legal persons within the Multilateral System within 2 years of the entry into force of the Treaty (Article 11(4)); and
Fourth, there is a provision for the Governing Body, following the review, to decide (consistent with the provisions of Art. 19.2) whether or not access shall continue to be facilitated for those natural and legal persons that have not included their holdings of PGRFA in the Multilateral System (Article 11(4)).
The review provisions, and threat of possible exclusion from the benefits of the Multilateral System, are intended to encourage the holders of semi-public and private collections, such as provincial governments, universities and independent research institutes, and private collectors, to place their PGRFA voluntarily within the multilateral system.
11.5 The Multilateral System shall also include the plant genetic resources for food and agriculture listed in Annex I and held in the ex situ collections of the International Agricultural Research Centres of the Consultative Group on International Agricultural Research (CGIAR), as provided in Article 15.1a, and in other international institutions, in accordance with Article 15.5.
The Treaty recognises in Article 15.1 the importance to the Treaty of the ex situ collections of PGRFA held by the IARCs of the CGIAR in trust for the international community, as well as ex situ collections held by other international institutions. Article 11.5 includes within the multilateral system the PGRFA held in those collections and listed in Annex I, subject to the provisions of Article 15. In this connection, it is interesting to note that the criteria established in Article 11.2 do not apply to PGRFA held by the IARCs. In practice, of course, PGRFA held in the in-trust collections are not under the management and control of a Contracting Party. The in-trust collections also do not normally include material that is subject to intellectual property rights, although they could include such material.
Article 11.5 also provides for the inclusion within the multilateral system of the ex situ collections of other international institutions that sign agreements with the Governing Body. This is further described at Article 15.5.
For plant genetic resources listed in Annex 1, access and benefit sharing are to be in accordance with the Treaty (Article 12 and 13). Plant genetic resources not listed in Annex 1 and collected before the entry into force of the Treaty, are to be made available in accordance with MTAs currently in use between the FAO and the IARCs (see Articles 15.1(a) and (b)).101
The role of the IARCs and other international institutions, and the collections they hold, is dealt with in more detail in Article 15.
99It is difficult to be specific on the number of crops included. The list of crops in Annex I has 35 entries. But some of these entries, such as “Brassica complex” include a number of distinct crops. In other cases, individual crops are excluded from the general entry, as for example, in connection with the listing of “maize”.
100Article 11.2 refers to “all other holders” of Annex 1 PGRFA. Would this also apply to holders of Annex I PGRFA in a Non-Contracting Party? In principle it would seem not. Article 11.2 addresses the coverage of the Multilateral System as between Contracting Parties, and the second sentence would seem to complete the concept of coverage in the same context. In any case, nothing would prevent the holder of PGRFA listed in Annex 1 from making such material available under the same terms as the Multilateral System. Conversely, a unilateral voluntary action by the holder of such PGRFA that is not within the jurisdiction of a Contracting Party, would not create any rights of obligations on the part of that non-Contracting Party.
101Article 15.1(a) and (b) of the Treaty.
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