Article 35 – Authentic Texts
The Arabic, Chinese, English, French, Russian and Spanish texts of this Treaty are equally authentic.
All authentic texts of the Treaty are equally authoritative, and the terms of the treaty are presumed to have the same meaning in each authentic text. However, cases of discrepancies between authentic language versions may happen. In those situations, the discrepancy can only be resolved by negotiation and amendment of one or more versions in accordance with Article 23. The addition of an authentic version necessitates the amendment of the relevant article (here 35) of the Treaty.
Box 21. National legislation and policy options for implementation
Pursuant to Articles 26 and 28, the Treaty's obligations become effective upon a particular State only when:
Ratification enables States to participate in all of the international framework set up under the provisions of the Treaty, including in particular the Multilateral System of access and benefit-sharing. It also enables Parties to participate in the Governing Body and to protect and advance their interests in the range of matters that the Governing Body will address in the course of promoting the effective implementation of the Treaty. Participation in the Treaty will of course involve costs to support international secretariat activities under the Treaty after it enters into force and for participation in the work of the Governing Body. Ratification would not, however, involve direct additional compulsory payments to other Contracting Parties, such as developing countries or countries with economies in transition. For the most part, it is assumed that the system of compulsory benefit-sharing envisaged under the Treaty will operate through and within the framework of national contract law through the standard MTAs.
On the other hand, if a State does not ratify the Treaty, the capacity of their domestic plant breeders to access PGRFA on which they rely from sources outside the country (including from the IARCs) could become more difficult and less cost effective. Similarly, their access to collections in a country which is a Party to the Treaty might then have to be governed by bilateral access agreements – with greatly increased transaction costs.129
Each Party to the Treaty incurs certain important obligations, including obligations to:
promote an integrated approach to the exploration, conservation and sustainable use of PGRFA (Article 5.1);
eliminate, or minimize threats to PGRFA (Article 5.2);
promote the sustainable use of PGRFA (Article 6.1);
realize Farmers' Rights (Article 9);
provide facilitated access to plant genetic resources for food and agriculture covered by the Multilateral System in accordance with the provisions of Part IV of the Treaty(Article 12); and
ensure that opportunities are available for seeking recourse under their national legal systems in case of contractual disputes arising under the standard MTAs (Article 13).
Once these obligations become effective, the Party must implement these commitments into national actions. Most often, it may appear that changes to domestic legislation may not be necessary to implement the Treaty. In many countries, it may be possible to implement the Treaty administratively, without the need for new national legislation. Some changes in the procedures of holders of ex situ PGRFA, particularly in relation to MTAs, will nevertheless be required so that their procedures conform with the requirements of the Treaty.
For those countries that do decide to implement domestic legislation, numerous options exist. Generally speaking, the Treaty imposes broad obligations, leaving the manner in which they are implemented to the Parties' discretion. This was done in order to ensure that Parties would be able to meet their commitments under the Treaty in a manner that meets their own goals, policies, and resources. For this reason, it is outside the terms of reference of this guide to provide specific language that could be implemented into domestic legislation. Moreover, the responsibility for PGRFA may be shared among various levels of government: from national, and/or sub-national, to municipal, each with its own sphere of competence.
Therefore, as a broad principle, Parties will need to examine their current legislative and regulatory regimes with respect to the objectives of the Treaty and take the necessary and practical steps towards creating an improved legislative framework that supports the conservation and sustainable use of PGRFA. It should be noted that legislation is most effective when it is developed and used as part of an overall strategy that includes planning, education and incentives. For example, the Treaty's Article 7.1 talks about implementing an integrated approach, as well as promoting the sustainable use of PGRFA, into agricultural and rural development policies and programmes.
When implementing the Treaty's commitments into domestic law, if that becomes necessary, it would be important to determine whether PGRFA should be addressed through changes in existing laws, treated in a distinct piece of national legislation, or whether a single piece of legislation should cover the commitments of both the Treaty and the CBD. Prima facie, in light of the complementary nature of the two regimes, there is nothing that is inherently contradictory that would prevent the adoption of a unified legislation.
There are, nevertheless, important distinctions between the CBD and the Treaty. Primary among these is their focus. The CBD addresses biological diversity very broadly, including the conservation and sustainable use of genetic resources, as well as access and benefit sharing. The Treaty, on the other hand, has a narrower scope, addressing in a more detailed way the conservation and sustainable use of PGRFA. With respect to the PGRFA listed in Annex I, Parties to the Treaty have agreed to a special multilateral system of access and benefit sharing. As mentioned earlier, this mechanism is intended to be consistent with the CBD, and to represent the first multilateral approach to its implementation.
Where national legislation has already been enacted or drafted for the implementation of the CBD, it will be necessary to review that legislation for compatibility with the provisions of the Treaty, particularly in so far as access is concerned. Where legislation for the implementation of the CBD provides a system of prior informed consent and mutually agreed terms on a bilateral basis for access to genetic resources in general, it may be necessary to discuss facilitated access to PGRFA under the Multilateral System with particularity. A review of national contract law and judicial procedures may also be needed to ensure that adequate opportunities for recourse are available in the national legal system in case of breaches of the obligations of the standard MTAs.
129See generally, Bert Visser, Derek Eaton, Niels Louwars and Jan Engels, Transaction costs of germplasm exchange under bilateral agreements, in Strengthening partnerships in agricultural research for development in the context of globalization, Proceedings of the GFAR conference 21–23 May 2003, Dresden, Germany, GFAR/IPGRI, 2003, pp. 51–80.
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