Article 2 – Use of Terms
For the purpose of this Treaty, the following terms shall have the meanings hereunder assigned to them. These definitions are not intended to cover trade in commodities:
The purpose of definitions in legal instruments is to provide agreed specific meaning to certain terms used in the Treaty. In interpreting a Treaty, terms are normally given their ordinary meaning according to everyday usage. However, some terms may need to be given specific meanings that may differ from normal usage. The way in which such terms are defined can and will affect the nature and scope of the obligations assumed and rights accorded under the Treaty. The definitions found in this section are thus fundamental in determining the scope of the Treaty. Since the definitions section forms part of the binding terms of the Treaty, the definitions found in this section prevail in the event of any inconsistency with their usual meaning.
The definitions given in Article 2 are of course limited in their application to the Treaty itself. In particular, the negotiators have been careful to indicate that these definitions, including in particular the definition of PGRFA, do not cover trade in commodities. This was introduced to prevent misinterpreting the term “products” in Article 13.2(d)(ii) as referring to commodities.55 Indeed it is important to recall that the Treaty refers to plant genetic resources and not to plants or crops as commodities.
Eight terms are defined in this Article. As will be seen in more detail below, most of the definitions are based, more or less closely, on those found in the CBD.
“In situ conservation” means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated plant species, in the surroundings where they have developed their distinctive properties.
The Treaty's definition of “in situ conservation” is identical to that in the CBD, with the exception of the limiting reference to plant species. It acknowledges that genetic resources exist both in natural ecosystems and human created agro-eco-systems. Thus, the definition of this term extends to both wild and domesticated genetic resources for food and agriculture. Wild genetic resources occur in situ where they exist in natural surroundings such as ecosystems and habitats. Domesticated or cultivated species occur in situ where they exist in “the surroundings where they have developed their distinctive properties.”
In addition to addressing the “maintenance and recovery of viable populations of species”, the Treaty's definition of “in situ conservation” with respect to wild species extends to the conservation of the actual ecosystems, as well as the natural habitats that populations of spe- cies depend on. This definition therefore implicitly recognizes that in situ species conservation of wild species cannot be successful without conserving the environment in which the populations of those species exist.
With respect to the in situ conservation of domesticated or cultivated plant species, the phrase “in the surroundings where they have developed their distinctive properties” refers to the development of identifiable plant varieties, such as landraces, within man-made agricultural systems. This applies whether or not those plants are reproductively isolated from the wild populations from which they originated. The term would also refer to a research centre, if that is where the distinctive properties of a given variety were developed.
The term “in situ conservation” is only used once in the Treaty, namely, in Article 5.1(d), which states that each Contracting Party will “promote in situ conservation of wild crop relatives and wild plants for food production”.
Unlike the CBD, no separate definition is given of the term “in situ conditions”. However the meaning is clear from the terms used in the definition of “in situ conservation”, which is in line with the definition used in the CBD. The definition in Article 2 of the CBD reads: “In situ conditions means conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.”
“Ex situ conservation” means the conservation of plant genetic resources for food and agriculture outside their natural habitat.
With the exception of the use of the more specific “plant genetic resources for food and agriculture” instead of “components of biological diversity”, the definition used in the Treaty is identical to that found in the CBD.
The term includes conservation of PGRFA in genebanks in the form of seed, tissue or pollen; in plantations; or in botanic gardens or other live collections, such as ex situ conservation stands. The definition also includes biological resources cultivated in areas other than those where they had developed their distinctive properties and maintained on farms that have not contributed to the development of those properties (for example, fruit trees kept in a field genebank or orchard).
Ex situ conservation is an important tool for the conservation of plant biodiversity, as well as to allow for the recovery of PGRFA following natural and humanitarian emergencies, and to provide continuous access to plant genetic resources to plant breeders, other researchers, farmers and indigenous and local communities. In such cases, the role of good and accessible documentation is very important.
The only reference to this term in the Treaty can be found at Article 5.1(e), which states that each Contracting Party will, inter alia, “cooperate to promote the development of an efficient and sustainable system of ex situ conservation”.
“Plant genetic resources for food and agriculture” means any genetic material of plant origin of actual or potential value for food and agriculture.
“Genetic material” means any material of plant origin, including reproductive and vegetative propagating material, containing functional units of heredity.
As two of the most important terms found in the Treaty, there was considerable debate over these definitions, which lasted right up to the actual adoption of the Treaty. The main issue was whether or not to expand the definition of PGRFA to include not only genetic material of plant origin, but also its genetic parts and components. The issue is linked closely with the provisions of Articles 12 and 13 on access to PGRFA and benefit sharing in the Multilateral System. The final compromise was to refrain from including the reference to genetic parts and components in the definition of PGRFA, but to include it in Article 12.3(d) in connection with the ban on the claiming of intellectual property rights over material received from the Multilateral System in the form received. Some ambiguities remain in the wording of Article 12.3(d), which will be commented on in connection with that provision. Under Article 13.2(d)(ii), the right of recipients to take out intellectual property rights over derivatives of material accessed from the Multilateral System is implicitly recognized. Article 13.2(d)(ii) provides for recipients of material to make mandatory or voluntary payments where plant genetic resources products that incorporate material accessed from the Multilateral System are commercialized.
Under the definitions as they now stand, PGRFA are defined as meaning any genetic material of plant origin of actual or potential value for food and agriculture, and in its turn, genetic material is defined as any material of plant origin, including reproductive and vegetative propagating material, containing functional units of heredity. These definitions parallel similar definitions in the CBD.
The following three comments can be made on the content of these definitions:
PGRFA are subject to the provisions of the Treaty only insofar as they have value for food and agriculture. The requirement that genetic material must have actual or potential value if it is to be classed as PGRFA is drawn from the parallel definition in the CBD. In this connection, it is to be noted that almost all plant genetic resources may be of potential value: indeed that value may only be realized when future needs arise, as for example in the case of pest or disease resistant traits. Of particular importance however is the restriction that the value must be for food and agriculture. Indeed the Treaty covers only plant genetic resources in so far as they are used, or can be used, for food and agriculture, and does not cover their use for any other purpose.
PGRFA are defined as genetic material, and “genetic material” is defined as containing functional units of heredity. It can be argued, therefore, that functional units of heredity (i.e. genetic parts and components such as individual genes or gene sequences) are not in themselves PGRFA, although they are part, or components, of PGRFA. The definition, however, remains ambiguous in this respect, and may need to be clarified by the Governing Body.
The term “functional unit of heredity” is not defined, but would appear to include at least all genetic elements containing DNA (deoxyribonucleic acid) i.e. genes.
“Variety” means a plant grouping, within a single botanical taxon of the lowest known rank, defined by the reproducible expression of its distinguishing and other genetic characteristics.
The plant kingdom has been classified into a ranking system containing many divisions and sub-divisions. The most commonly used ranks of classification in the plant kingdom are, in descending order, Division, Class, Order, Family, Genus and Species. These ranks are called taxonomic groups, or “taxa” for short. While the above are the main taxa, most taxonomists would continue the classification to the level of sub-species, and even botanical races.
The rank of species denotes a group of individuals that share a long number of heritable characteristics, but which are mainly reproductively isolated, that is, the individuals of a species cannot usually interbreed by natural means with individuals of another species.
Although the rank of species is an important botanical classification, it is clear that the plants within a species can be very different. Farmers and growers need plants that are adapted to the environment in which they are grown and which are suited to the cultivation practices employed. Therefore, farmers and growers use a more narrowly defined group of plants, selected from within a species, called a plant “variety”, (not necessarily, in the precise sense used in the UPOV Convention).
The definition found in the Treaty, which is similar in many respects to that found in the UPOV Convention,56 states that it is “a plant grouping within a single botanical taxon of the lowest known rank” (i.e. sub-species or botanical race).
Moreover, this definition clarifies that a variety's distinguishing and other genetic characteristics must remain unchanged through the process of propagation. In essence this reflects the ‘distinctness’, and ‘stability’ criteria set out in the UPOV Convention. If a plant variety grouping does not meet these criteria, it is not considered to be a “variety” for the purpose of the Treaty.
The term “variety” appears in the Treaty in two places in Article 6. Article 6.2(b) states that the sustainable use of PGRFA may include measures such as “strengthening research which enhances and conserves biological diversity by maximizing intra- and inter-specific variation for the benefit of farmers, especially those who generate and use their own varieties”. Article 6.2(g) addresses “reviewing, and, as appropriate, adjusting breeding strategies and regulations concerning variety release”.
It is interesting to note that the use of the term in Article 6(b) refers to farmers' varieties. These may, in fact, not always meet the criteria of stability referred to above. There may indeed be a lack of consistency between the definition of “variety” and the actual use of the term in the Treaty.
“Ex situ collection” means a collection of plant genetic resources for food and agriculture maintained outside their natural habitat.
Similar to the term “ex situ conservation”, this term focuses on the physical collection of plant genetic resources held outside the environment where the plants developed their distinctive properties.
Most of the ex situ collections are held in national seed banks. The IARCs of the CGIAR hold about 12% of the world's ex situ collections of PGRFA57 and also have major crop improvement programmes, organized in collaboration with national programmes. They hold most of their ex situ collections ‘in trust’ for the benefit of the international community under agreements with FAO (see Box 10).
The term “ex situ collections” is used in Article 11, which addresses the coverage of the Multilateral System. Article 11.5 states that the Multilateral System shall include the plant and genetic resources for food and agriculture held in the ex situ collections of the IARCs of the CGIAR. Further reference to this issue is made in Article 15.1
“Centre of origin” means a geographical area where a plant species, either domesticated or wild, first developed its distinctive properties.
“Centre of crop diversity” means a geographic area containing a high level of genetic diversity for crop species in in situ conditions.
The terms “centre of origin” and “centre of diversity” or “centre of crop diversity” are used in the Treaty on two occasions. First, the Preamble acknowledges the past, present and future contributions of farmers, “particularly those in centres of origin and diversity”. Second, Article 9.1 states that “the Contracting Parties recognize the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centres of origin and crop diversity, have made and will continue to make”.
As in the definition of “in situ” conservation, the definition makes reference to both wild and domesticated plant species. However, the emphasis in the definition is on the process of domestication and cultivation carried out by farmers and indigenous communities in the centres of origin and crop diversity, given the use of the phrase “first developed its distinctive properties”. Nevertheless, it can still be difficult to determine in any particular case where a plant species first developed its distinctive properties.
More information about the centres of origin and centres of diversity can be found in Box 4.
55It should be noted that the common usage of “commodities” would exclude PGRFA. See: www.investorwords.com/cgi-bin/getword.cgi.
56The UPOV Convention defines “plant variety” in Article 1(vi) as: “a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder's right are fully met, can be – defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, – distinguished from any other plant grouping by the expression of at least one of the said characteristics and – considered as a unit with regard to its suitability for being propagated unchanged;”.
57State of the World Report, 1996.
< previous section < index > next section >