Article 19 – Governing Body
Article 19 is basically self-explanatory. It establishes the Treaty's highest organ: the Governing Body. The Governing Body is to be composed of representatives of all Contracting Parties to the Treaty. In addition, observers and non-governmental organizations may attend sessions of the Governing Body. Its basic function is to steer and supervise the entire process of implementing and further developing the Treaty. Given the fact that certain issues under the Treaty have not yet been fully resolved, particularly with respect to the operation of the Multilateral System, the decision-making role of the Governing Body will be particularly important.
The Governing Body is to be composed of all Contracting Parties. There is no provision in the Treaty for the establishment of an executive body of restricted membership to guide the implementation of the Treaty during intersessional periods, although to some extent the Bureau to be established under Article 19.11 may perform that task. The Governing Body will have important decisions to take at its first meeting, including
Determine the level, form and manner of payment to be made for commercialization (Article 13.2(d)(ii));
Adopt the funding strategy for the implementation of the Treaty (Article 19.3(c)); and
Consider and approve procedures and operational mechanisms to promote compliance with the Treaty and address issues of non-compliance (Article 21).
Since only Contracting Parties will be able to participate in this first meeting, many countries will probably seek to speed up their ratification procedures to ensure that they are in a position to take part in it.
19.2 All decisions of the Governing Body shall be taken by consensus unless by consensus another method of arriving at a decision on certain measures is reached, except that consensus shall always be required in relation to Articles 23 and 24.
Article 19.2 specifies that decisions of the Governing Body are to be adopted by consensus and not by voting. Consensus, in this context, means that the decision is taken without any Contracting Party expressing its opposition to the decision or refusing to join in the consensus. In effect it gives each Contracting Party a veto over the decisions of the Governing Body. In practice, many Contracting Parties may not be entirely happy with a potential decision of the Governing Body but may not wish to stand in the way of a consensus and exercise their rights of veto over that decision. While stressing the general requirement for consensus in decisionmaking, the Article does allow for the Governing Body to decide that some matters may be decided by another method of decision-making, presumably something less than consensus, provided that the decision to resort to that other method of decision-making is itself made by consensus. Such modified methods of decisionmaking, however, cannot be applied to the adoption of amendments to the Treaty (Article 23) or its annexes (Article 24), which are deemed to be of such importance that they require consensus at all times.
Most treaties seek to promote consensus in decision-making. The Treaty is consistent with the approach of the CBD, for example, which provides that the rules of procedure of the Conference of Parties (COP) to the Convention must be adopted by consensus: the detailed rules on decision making are then set out in the rules of procedure. The Rules of Procedure adopted by the COP to the CBD include some elements that, as of this writing, have never been able to be resolved, and remain bracketed 13 years after the Convention entered into force (CBD Rules of Procedure Article 40). As these rules stand (with bracketed text still unadopted), COP decisions on all matters of substance may only be taken by consensus. The only nonconsensus mechanisms in the CBD relate to the adoption of amendments (Article 29) and annexes (Article 30), which may occur by vote of two-thirds of the parties present and voting, but are not binding on Parties that do not wish to be bound (countries that do not ratify the amendment, or those that submit a notification regarding the annex, pursuant to Article 30.).
The Governing Body of the Treaty could also develop and adopt rules of procedure that would allow for decision-making by majority or supermajority vote in certain circumstances. In practice, the negotiators have always worked by consensus in drawing up the Treaty in the first place. And some of the decisions to be taken by the Governing Body are so important that all Contracting Parties must be on board if the decisions are to have any meaning. During the latter part of the negotiations, some countries tried to draw up a list of important decisions that would always require consensus. This became so long, that the attempt was eventually abandoned. Amendments to the Treaty itself and to the Annexes to the Treaty, and in the list of crops covered by the Multilateral System in Annex I, were of particular concern to certain countries, who wished to retain veto rights over any changes to the list that would threaten the overall balance of the System.
On the positive side, the consensus process is often preferable as a standard method of working in multilateral forums because voting on issues can divide membership and leave certain parties feeling unheard. Reaching consensus may raise also levels of commitment by group members because everyone is agreeing on a solution. Moreover, parties are more likely to implement decisions they accept, and consensus makes acceptance more likely. The consensus- building process, however, requires time and discipline.
(a) provide policy direction and guidance to monitor, and adopt such recommendations as necessary for the implementation of this Treaty and, in particular, for the operation of the Multilateral System;
The general function of the Governing Body is to promote the implementation of the Treaty, and in essence to promote the achievement of its objectives. In so doing it will need to give policy direction and guidance, and to adopt decisions. Since a number of matters related in particular to the operation of the Multilateral System have been left unresolved in the Treaty, perhaps the most important matters in the immediate term will relate to that particular subject area. For example, the Governing Body will need to decide on the level, form and manner of payment to be made under Article 13.2(d)(ii) and indeed on the whole standard MTA. Other important matters will relate to the adoption of the funding strategy.
(b) adopt plans and programmes for the implementation of this Treaty;
(c) adopt, at its first session, and periodically review the funding strategy for the implementation of this Treaty, in accordance with the provisions of Article 18;
The provisions of paragraph (b) require no commentary. The adoption under paragraph (c) of the funding strategy for the Treaty will be of particular importance, particularly from the point of view of the confidence of developing countries in the effectiveness of the benefit sharing provisions of the Treaty and the willingness of donors to provide the required financial resources. In this context, it is likely that the Governing Body will be asked to enter into a relationship agreement with the new Global Crop Diversity Trust under this agenda heading at its first meeting. It is envisaged that the Trust, which will provide endowment and other funds for ex situ collections, will be an element of the funding strategy.
(d) adopt the budget of this Treaty;
The budget of the Treaty will probably refer at least initially to operational costs of meetings and secretariat.
(e) consider and establish subject to the availability of necessary funds such subsidiary bodies as may be necessary, and their respective mandates and composition;
No provision is made under the Treaty itself for the establishment of subsidiary bodies, such as the Subsidiary Body on Scientific, Technical and Technological Advice established under Article 25 of the CBD. The Governing Body is thus given a free hand in deciding on such subsidiary bodies, if any, that it considers necessary. The Governing Body will need to have a report before it on the availability of the necessary funds before it takes any decision to establish any such bodies.
(f) establish, as needed, an appropriate mechanism, such as a Trust Account, for receiving and utilizing financial resources that will accrue to it for purposes of implementing this Treaty;
This provision is the nearest the Treaty comes to establishing a financial mechanism. Basically this will probably take the form of a Trust Account established under the Financial Regulations of FAO, to receive the commercial benefit sharing payments under Article 13.2(d) and various voluntary contributions.
(g) establish and maintain cooperation with other relevant international organizations and treaty bodies, including in particular the Conference of the Parties to the Convention on Biological Diversity, on matters covered by this Treaty, including their participation in the funding strategy;
The Governing Body will need to establish relations and cooperate with a number of other bodies dealing with PGRFA. This provision singles out the Conference of Parties to the CBD as a prime example. Indeed Article 1.2 of the Treaty makes it clear from the outset that the objectives of the Treaty can only be achieved by closely linking the Treaty to the CBD as well as to FAO. Relations will also need to be established with the new Global Crop Diversity Trust, for which the Governing Body will be asked to provide overall policy guidance.
(h) consider and adopt, as required, amendments to this Treaty, in accordance with the provisions of Article 23;
(i) consider and adopt, as required, amendments to annexes to this Treaty, in accordance with the provisions of Article 24;
The adoption of both amendments to the Treaty and to the annexes will require consensus. Given the somewhat limited scope of the crops listed in Annex 1, many countries will be looking to an extension of that list as soon as possible in the light of experience with the operation of the Treaty. The requirement of consensus, however, may slow down any such extension.
This will be an important function of the Governing Body, given that confidence in the Treaty, particularly on the part of developing countries, will depend on effective flows of resources being realized under the benefits sharing provisions of the Treaty.
(k) perform such other functions as may be necessary for the fulfilment of the objectives of this Treaty;
This is a normal catch-all provision to be found in most international agreements. For example, a number of Articles in the Treaty allow the Governing Body to take specific action for which no corresponding power is provided under Article 19, other than this general provision. These include:
Article 11.4 – Provides for a built-in review by the governing body to assess progress on the measures to encourage natural and legal persons under their jurisdiction to include in the multilateral system the listed PGRFA that they hold;
Article12.3(h) – In the absence of national legislation, set standards with respect to access to PGRFA found in in situ conditions; and
(l) take note of relevant decisions of the Conference of the Parties to the Convention on Biological Diversity and other relevant international organizations and treaty bodies;
(m) inform, as appropriate, the Conference of the Parties to the Convention on Biological Diversity and other relevant international organizations and treaty bodies of matters regarding the implementation of this Treaty; and
These provisions define the nature of the relationship between the Governing Body of the Treaty and the Conference of Parties to the CBD, as well as other relevant international organizations. The relationship is not one of subordination; it is one of cooperation. The Governing Body will take note of relevant decisions in other bodies, and will in turn inform them on matters regarding the implementation of the Treaty. These governing bodies can also decide to extend their cooperation to other activities besides exchanging information.
Both matters are important matters to be decided by the Governing Body. The ex situ collections held by the IARCs are of vital importance to the success of the Treaty. The Treaty cannot govern these collections directly, since the IARCs have their own international legal personality but are not States, and therefore cannot become becomes Parties to the Treaty in their own right. Under international law, a treaty cannot impose obligations or rights on third parties without their consent. Thus the mechanism of the signature of separate agreement between the Governing Body and the IARCs was chosen as a means of bringing those collections within the purview of the Treaty. Article 15.1(b) provides that the MTA currently in use by the IARCs under the in-trust agreements with FAO is to be amended by the Governing Body, in consultation with the IARCs, not later than its second regular session.
19.4 Subject to Article 19.6, each Contracting Party shall have one vote and may be represented at sessions of the Governing Body by a single delegate who may be accompanied by an alternate, and by experts and advisers. Alternates, experts and advisers may take part in the proceedings of the Governing Body but may not vote, except in the case of their being duly authorized to substitute for the delegate.
Through Article 19.4, the Treaty adopts the “one State, one vote” method, thereby ensuring that each State has an equal say in the decisionmaking process. This is a traditional rule of international law derived from the principle of sovereign equality. The only exception to this rule is in the case of regional economic integration organizations, such as the European Community, which will exercise on matters within their competence a number of votes equal to their members that are Contracting Parties to the Treaty.
19.5 The United Nations, its specialized agencies and the International Atomic Energy Agency, as well as any State not a Contracting Party to this Treaty, may be represented as observers at sessions of the Governing Body. Any other body or agency, whether governmental or non-governmental, qualified in fields relating to conservation and sustainable use of plant genetic resources for food and agriculture, which has informed the Secretary of its wish to be represented as an observer at a session of the Governing Body, may be admitted unless at least one third of the Contracting Parties present object. The admission and participation of observers shall be subject to the Rules of Procedure adopted by the Governing Body.
Identical to Article 23(5) of the CBD, this Article deals with two distinct matters: the admission of observers, and (once admitted) their right to participate in meetings of the Governing Body. It empowers the Governing Body to regulate both the admission and participation of observers through the rules of procedure adopted in accordance with Article 19.7.
Certain basic rules regarding admission are, however, already mentioned in this Article. There are two distinct cases. The first case includes institutions that, by their very nature, have a right to participate and, therefore, are ipso facto admitted. These include the United Nations, its specialized agencies and any State not a party to the Treaty. The second case includes all other institutions, whether governmental or not. These must submit to an admission procedure:
qualification in the field dealt with by the Treaty;
notification of the Secretariat that observer status is sought; and
lack of objection on the part of at least 1/3 of the Parties present at the particular meeting in question.
The last requirement indicates that the procedure does not grant blanket admission to all future meetings. Instead, the second category must reapply for observer status for all subsequent meetings. The Governing Body will also have to determine, once admitted, an observer's right to participate in the meeting.
19.6 A Member Organization of FAO that is a Contracting Party and the member states of that Member Organization that are Contracting Parties shall exercise their membership rights and fulfil their membership obligations in accordance, mutatis mutandis, with the Constitution and General Rules of FAO.
At present, only one Organisation meets the criteria for coverage under this section. In November 1991, the European Community (EC) was admitted to membership of FAO as its first Member Organization. The admission of the EC followed the adoption of amendments to the FAO's Constitution and General Rules, allowing membership by regional economic integration organizations to which their members have transferred jurisdiction over matters within the purview of FAO. Since members countries of the EC have transferred competence in certain areas involvement in those matters, including the right to vote, must therefore be exercised by the EC itself. Under the Constitution and General Rules of FAO, a Member Organization of FAO exercises membership rights on an alternative basis with its member states that are Member Nations of FAO. That means that membership rights are exercised by the EC on matters on which it has exclusive competence, and by the individual Member States of the EC on matters that remain within their exclusive competence. On matters where competence is shared between the EC and its Member States, both may speak from the point of view of their own competence, but only one or the other may exercise the right to vote. The distribution of competences as between the EC and its Member States must be described in a notice to the Director-General of FAO and circulated to all Member Nations. More significantly, the EC and its Member States are required to notify FAO, prior to any meeting of the Organization, of the distribution of competences and of the right to vote in respect of each item of the agenda of the meeting. The present provision requires that the same scheme of membership should apply to membership by the EC and its Member States in the Governing Body of the Treaty.
The Treaty does not provide for the Governing Body's procedural and financial rules. Rather, the Governing Body is given the responsibility to create those rules itself. As specified in Article 19.2, these are to be adopted by consensus. The rules of procedure cannot of course change the rules applicable, for example, to the adoption of amendments to the Treaty or its annexes, as that would be inconsistent with the provisions of the Treaty.
The purpose of a quorum requirement is to ensure that no decisions are taken without a sufficient number of Parties present. Under Article 19.8, a majority (50 percent plus one) of the current Parties constitutes a quorum at any session of the Governing Body. Regional economic integration organizations, such as the EC, can count towards a quorum on matters within their respective designated competences, to the extent of the number of votes that the organization is entitled to exercise on those matters.
19.9 The Governing Body shall hold regular sessions at least once every two years. These sessions should, as far as possible, be held back-to-back with the regular sessions of the Commission on Genetic Resources for Food and Agriculture.
In order to fulfil its purpose, the Governing Body needs to meet regularly. As noted above, the Treaty is a dynamic instrument, and there are a large number of matters on which the policy direction and guidance of the Governing Body will be required. However, as with other issues, the Treaty leaves it to the Governing Body to decide at what intervals it should meet, provided it is at least once every two years.
The Article encourages the Governing Body to hold its regular sessions back-to-back with the regular sessions of the CGRFA. This is because the CGRFA will retain some functions of relevance to the Treaty such as the preparation of reports on the state of the world's PGRFA and the updating of the rolling GPA. Ensuring that the meetings are held back-to-back will reduce costs, thereby contributing to the participation of representatives from developing countries. It will also make it easier to coordinate the actions of the Governing Body on the one hand and the Commission on the other.
19.10 Special Sessions of the Governing Body shall be held at such other times as may be deemed necessary by the Governing Body, or at the written request of any Contracting Party, provided that this request is supported by at least one third of the Contracting Parties.
Article 19.10 provides two separate bases by which a special session of the Governing Body may be convened:
When deemed necessary by the Governing Body; and
When requested in writing by a Contracting Party, with the support of at least one third of the Contracting Parties.
Article 19.11 provides for the election of a Chairperson and Vice-Chairpersons in accordance with the Rules of Procedure, to be adopted under Article 19.7. While the powers of the Bureau are not specified, it may be requested to play a significant role in overseeing the implementation of the Treaty during intersessional periods. However, the real power of decisionmaking on important matters is likely to remain with the Governing Body itself, operating by consensus.
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