The International Treaty on Plant Genetic Resources for Food and Agriculture (the “Treaty”) was adopted by the Thirty-first session of the FAO Conference on 3 November 2001. The Treaty was approved under Article XIV1 of the FAO Constitution by a vote of 116 Members in favour with two abstentions.2 The Treaty has since been signed by 78 countries and entered into force on 29 June 2004, ninety days after the deposit of the fortieth instrument of ratification, acceptance, approval or accession.3 The adoption of the Treaty brought to an end more than seven years of difficult negotiations, launched by Resolution 7/93 of the Twenty-seventh Session of the FAO Conference in 1993: the Resolution called for negotiations, through the FAO Commission on Genetic Resources for Food and Agriculture (CGRFA), to revise the International Undertaking on Plant Genetic Resources, in harmony with the Convention on Biological Diversity4 (CBD).
The Treaty, in harmony with the CBD, provides for the conservation and sustainable use of plant genetic resources for food and agriculture (hereafter referred to as “PGRFA”), as the basis for sustainable agriculture and food security. Most importantly, it provides for the special needs associated with plant genetic resources for food and agriculture. For a multitude of generations, farmers have drawn on many thousands of different plant genetic resources in order to breed the major crops that today feed the world. The further development of agriculture, and the world's food security, will depend on farmers and breeders continuing to have easy, low-cost access to the plant genetic resources necessary to face new environmental and agricultural challenges, including access to the information, technical and financial resources and capacity necessary to utilize those resources fully. This flow of plant genetic resources for food and agriculture had been endangered by developments that have in practice forced breeders and farmers to seek access to PGRFA on a bilateral basis and by practical difficulties of negotiating terms for access and benefit sharing for such a large number of individual transactions.
The Treaty ensures this continued flow so essential to agriculture and food security by setting up a multilateral system of facilitated access and benefit sharing for those plant genetic resources that are most important for food security and on which countries are most interdependent. These plant genetic resources are listed in Annex I to the Treaty.
For these resources, the Contracting Parties to the Treaty have, in the exercise of their sovereign rights over their plant genetic resources, agreed to facilitate access on a multilateral basis. Moreover, they have agreed on standard terms and conditions for access and benefit sharing, thereby avoiding the need to resort to bilateral negotiations over each transaction. These standard terms and conditions include the sharing of benefits derived from the commercial use of PGRFA. In addition, Contracting Parties have agreed on a range of other benefits to be shared, including information, capacity building and access to and transfer of technology. These benefits are targeted at developing countries to enable them to conserve and utilise their own PGRFA and any they may obtain from the Multilateral System. While the Multilateral System covers only certain listed plant genetic resources, the Treaty sets a framework for the conservation and sustainable use of all PGRFA and establishes the institutional machinery to oversee the implementation of its provisions.
Before dealing in more detail with the origins of the Treaty, it may be appropriate to clarify the special nature of PGRFA and their importance for agriculture and food security.
The special nature of PGRFA and the need to seek special solutions for PGRFA as separate from other genetic resources have been recognized by Resolution 3 of the Nairobi Conference that adopted the CBD in 1982, by the Conference of Parties to the CBD itself,5 and in the Preamble to the Treaty.6 What then is the special nature of PGRFA that differentiates them from other genetic resources and why are they so important for agriculture and food security?7
As used in the Treaty,8 PGRFA (and “plant genetic resources”) are the genetic resources or material of actual or potential value for food and agriculture that are contained in plants.9 As such they are to be differentiated from the crops themselves as commodities, i.e. the biological resources. PGRFA are important as tools or “building blocks” for breeders, including traditional farmers, in improving crops and introducing new traits into those crops, such as drought or pest resistance.
PGRFA, or at least those of cultivated crops, are essentially a man-made form of biodiversity. Cultivated crops, on which man depends for his food and survival, have been created by man, and, for the most part, cannot exist without his continued intervention. Over the millennia, farmers have domesticated wild plants and, through a process of selection and breeding, made them suitable for modern agriculture. This they have done by breeding out the natural traits, such as shattering of seed-heads prior to maturity or seed dormancy, that allow those plants to survive in the wild. They have also done it by breeding in new traits such as higher yields, and drought or disease resistance. Any individual landrace is thus the product of the breeding work of thousands of farmers over many generations. PGRFA also depend on continued and active human management. Without that human care and selection, PGRFA will revert to the wild and may be of little further value to food and agriculture. Maintaining intra-specific genetic diversity, i.e. genetic diversity within individual species, is essential for maintaining yield stability and the ability of crops to adapt to new diseases and other environmental challenges.
Farmers and breeders depend on PGRFA as building blocks for the improvement of their crops. The world is continually faced with the need to increase crop productivity, and to develop new varieties more adapted to face environmental and biological challenges or to meet the needs of local communities. To meet these needs and challenges, farmers and plant breeders must have access to a wide range of PGRFA and to the essential information about those PGRFA that will allow good use to be made of them.
PGRFA are important in two ways.
First, they are important as an immediate resource, i.e. for the particular characteristics they may provide, in terms of pest resistance, drought tolerance, plant architecture, taste or colour.10 Much of the increase in food production over the last half century can be attributed to innovations achieved through plant breeding, drawing on existing genetic resources. However, the large increases in yield that have been achieved in areas of high agricultural potential have not been replicated in more marginal areas. There is also a problem of genetic erosion caused by the replacement of diverse genetic material on farms by modern varieties. Further large increases in food production will be required to feed the dramatically expanding population of the world. New plant breeding strategies will have to aim at improving economic and environmental sustainability by developing cultivars that produce ever higher yields with less use of expensive and potentially harmful chemical inputs. The new varieties will also need to be more adapted to the needs of local farmers in more marginal areas or economies, and incorporate increased genetic diversity. All of this will place increased demands on the availability of a wide range of PGRFA. While many countries may have large genebanks relating to their major crops, there will always be a need for access to a wider range of diversity from the centres of origin of the crop species, for example to find resistances to new diseases.
The nature of the plant breeding process calls for a broad range of plant genetic resources as inputs into any one successful product. Indeed a new plant variety can often be the product of generations of breeding by farmers and breeders, which may stretch across many countries. Even at the stage of developing an individual new commercial variety, scientists may have to screen literally thousands of samples in search of a particular agronomic characteristic. Depending on the crop, breeders commonly work with up to 60 or so different landraces originating from 20 to 30 different countries. This wealth of parentage, particularly when seen in the context of the selection and breeding work of generations of farmers, means that it is difficult to track the original parentage of the products of plant breeding or of their several distinctive properties, as well as to calculate the extent to which any particular genetic input has been instrumental in producing the special characteristics of a new commercial variety.11
But PGRFA are not only important for dedicated plant breeders: they are also particularly important for traditional small-scale farmers in maintaining the quality and yield of their crops. Farmers have traditionally engaged in crop improvement, selecting seeds for various desirable traits, and replanting only those that displayed the best characteristics. Part of this tradition of crop improvement has been the practice of exchanging seeds among farmers in order to maintain levels of intra-specific genetic diversity that can protect their crops against yield fluctuation and diseases and other environmental challenges. However, as farmers have become more reliant on modern, commercial agriculture, new varieties of crops have replaced the traditional, highly variable farmer varieties, leading to an overall loss of diversity, including intra-species diversity, at the farm level.
Second, PGRFA are important as an insurance against unknown future needs. Modern varieties that tend to be more uniform are replacing a large number of traditional genetically more heterogeneous varieties, thus increasing crop vulnerability. Disasters such as the Irish potato famine in the 1840s and the destruction of the Sri Lankan coffee industry by rust are in themselves evidence of the need for increased genetic diversity in crops. Meeting such new and unexpected challenges will require continuing and increased exchange of PGRFA.
The fundamental importance of PGRFA for agriculture and food security was recognized by the World Food Summit – a landmark event in the fight against food insecurity held in Rome in 1966. The Rome Declaration on World Food Security and the World Food Summit Plan of Action, adopted at the close of the Summit, provide a framework for ongoing efforts to eradicate hunger. Objective 3 of the Plan of Action contains an express commitment on the part of governments to “promote the conservation and sustainable use of biological diversity and its components in terrestrial and marine ecosystems, with a view to enhancing food security”. 12 In Objective 3.2 (e), the governments further commit themselves to promoting “an integrated approach to conservation and sustainable utilisation of PGRFA, through inter alia appropriate in situ and ex situ approaches, systematic surveying and inventorying, approaches to plant breeding which broaden the genetic base of crops, and fair an equitable sharing of the benefits arising from the use of such resources.” Conversely, the linkage between PGRFA and food security is also underlined in the specific reference to the World Food Summit's Declaration and Plan of Action in the Preamble to the Treaty.
PGRFA have, for centuries, been freely and widely exchanged, not only among farmers in a particular locality, but also more widely across the world's continents and regions. Potatoes originated in the Andes mountains of Latin America and are now staple crops in Europe and elsewhere in the world; barley and wheat were first domesticated in the Near East; rice originated in South-East Asia. Very often crops fared better in their new environments than in the original centres of origin, given that the new environments were often free from the natural diseases and pests prevalent in those centres of origin. But once such diseases and pests do find their way into those new environments, breeders and farmers may have to go back to the centres of origin and biodiversity of crops in order to find natural resistances. The Irish potato famine of the 1840s is one example, where natural resistances to the phytophthera infestans potato blight had to be sought in the centres of origin of the potato in South America, in order to save Europe's potato harvests. A more recent example has been the Taro Leaf Blight, which threatened to wipe out the taro crop of at least one South Pacific country, a crop that was essential to the food security of that country. The country had to look to other countries, both within the Pacific Region and outside in order to find new taro stock that is resistant to the disease. Other countries in the region will be forced to broaden the genetic base of their taro crops if they are to avoid similar crises. Broadening the genetic base of staple crops in the Pacific region was specifically recognized by the Ministers of Agriculture in the Pacific Region as being crucial to food security in the region.16
The exchange of PGRFA has continued over the ages, and almost all countries in the world are now heavily interdependent on PGRFA from other parts of the world for their agricultural development. Moreover, the flow of PGRFA is two-way. No country or region of the world is entirely self-sufficient in terms of the plant genetic resources needed to sustain and improve its major crops.17
Without access to genetic diversity from sources outside the country or region, crop improvement in those countries or regions cannot be properly undertaken. Conserving PGRFA is not just a question of preserving diversity of consumer choice for tomatoes or potatoes: it is a matter of ensuring that tomatoes and potatoes, and any other crops for that matter, can continue to be available to feed the world!
The origins of the Treaty date back to the International Undertaking on Plant Genetic Resources (the “International Undertaking”), which was adopted by the FAO Conference in November 1983 under Resolution 8/83 (see Box 2). It was the first international instrument dealing with the conservation and sustainable use of PGRFA. The International Undertaking18 was a voluntary (non legally-binding) agreement which sought “to ensure that plant genetic resources of economic and/or social interest, particularly for agriculture, will be explored, preserved, evaluated and made available for plant breeding and scientific purposes”.19 The International Undertaking was based on the principle, then universally accepted, that plant genetic resources were “a heritage of mankind and consequently should be available without restriction”.20 In line with that principle, adhering governments and institutions having plant genetic resources under their control subscribed to the policy of allowing access to samples of such resources and to permit their export where the resources have been requested for the purposes of scientific research, plant breeding or genetic resource conservation.21
While the International Undertaking attracted wide support,22 a number of countries either indicated that they could not support it23 or adhered to it only subject to reservations,24 in part concerning the concept of free availability and its compatibility with Plant Breeders' Rights. At the same time, there was a growing feeling of the inequality of a system that rewarded the contributions of some innovators to the development of plant genetic resources through plant variety protection and patents, but failed to recognize the important contribution over time of farmers' innovations in selecting and breeding, as well as conserving, plant genetic resources. There was also growing concern that any system addressing PGRFA must reflect more fully the sovereign rights that countries have, and always have had over those resources. To meet these growing concerns, the FAO Con ference in 1989 adopted a series of Agreed Interpretations of the International Undertaking. 25 The Agreed Interpretations recognized that Plant Breeders' Rights, as provided for by the International Union for the Protection of New Varieties of Plants (UPOV) (see Box 9), were not incompatible with the International Undertaking. At the same time, they recognized Farmers' Rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources, particularly those in the centres of origin/diversity.26 A further Conference Resolution in 1991 reiterated the sovereign rights of States over their plant genetic resources, clarified that breeders' lines and farmers' breeding materials should only be available at the discretion of their developers during the period of their development, and that Farmers' Rights should be implemented through an international fund on plant genetic resources.27
Meanwhile negotiations on access to genetic resources, and the fair and equitable sharing of benefits arising from their use, formally adopted in May 1992, at a Conference28 convened by United Nations Environment Programme (UNEP) in Nairobi (the Nairobi Conference). The Convention was heralded and opened for signature almost immediately thereafter at the United Nations Conference on Environment and Development (UNCED) of 1992. It entered into force in December 1993. The CBD provided a comprehensive framework for the conservation and sustainable use of biological resources, and a series of commitments regarding sharing genetic resources and their benefits, with emphasis on decision-making at the national level. It recognizes the sovereignty of States over their natural resources, and laid down the principle that the authority to determine access to genetic resources rests with the national government concerned, implemented through national legislation. However, each Contracting Party is to endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses, and agrees not to impose restrictions that run counter to the objectives of the Convention. Access, where granted, is to be on mutually agreed terms and is subject to prior informed consent of the Contracting Party providing such resources unless otherwise determined by that Party.29 The countries in which the resources are to be used are also bound by specific requirements regarding measures taken with the aim of sharing benefits arising from the commercial and other utilization of genetic resources and other matters. These are similarly to be on terms mutually agreed with the Contracting Party providing the resources.
For the purpose of access and benefit sharing, “genetic resources provided by a Contracting Party are only those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that acquired the genetic resources in accordance with the Convention.”30 Some commentators (including the authors) interpret this provision to be a specific exclusion, eliminating ex situ material collected before the entry into force of the Convention, including gene bank collections of the International Agriculture Research Centres of the Consultative Group on International Agricultural Research (CGIAR) as well as many national collections.31 The Nairobi Conference recognized the need to seek solutions to these and other outstanding matters concerning plant genetic resources within the Global System for the Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture established by FAO (see Box 8).32 It called in particular for solutions to be found to the question of access to ex situ collections not acquired in accordance with the Convention and to the question of farmers' rights.33 This call was reinforced in Agenda 21,34 adopted by UNCED, which called for the strengthening of the FAO Global System on Plant Genetic Resources, and its adjustment in line with the outcome of the negotiations on the CBD, as well as for the realization of Farmers' Rights.
The invitation extended by the Nairobi and UNCED was taken up in November 1993 by the FAO Conference, which adopted Resolution 7/ 93 requesting the Director-General of FAO to provide a forum for negotiations among governments for the adaptation of the International Undertaking on Plant Genetic Resources, in harmony with the CBD, the consideration of the issue of access on mutually agreed terms to plant genetic resources, including ex situ collections not addressed by the Convention, and the issue of the realization of Farmers' Rights.
As mentioned above, the negotiations, which culminated in the adoption of the Treaty were long and difficult. They took place within the framework of the FAO CGRFA, initially in the Commission itself, and later in a Contact Group of some 40 delegations established by the Commission. At one stage the Chairman convened an informal meeting of experts in Montreux, Switzerland, to help give direction to the negotiations. The Chairman's elements derived from that meeting were indeed instrumental in that respect. The main difficulties arose out of the need to balance access with real benefit sharing, the need to take into account intellectual property issues, and the inherent complexity of the subject matter.
The CBD (see Box 3) and the Bonn Guidelines adopted under it have taken great steps in protecting the world's genetic resources and biodiversity, and ensuring equitable regimes of access and benefit sharing. But the CBD is not an implementation mechanism, and does not address the role of existing international systems, or directly address the special needs associated with PGRFA. In particular, where it is thought necessary to negotiate access to genetic resources on a case-by-case bilateral basis, the consequent high transaction costs involved, coupled with increased prevalence of intellectual property rights over genetic resources, has threatened to stifle the continued exchange of PGRFA on which modern agriculture depends.35 Accessing PGRFA on a bilateral basis is problematic for farmers and breeders in all countries. It is in fact particularly difficult for those developing countries that are both economically poor and relatively poor in genetic resources. They have fewer prospects of accessing genetic resources through bilateral exchanges, given that they do not have the funds, technologies or sources of original genetic diversity to negotiate such exchanges.36
The Treaty addresses germplasm availability, directly. Countries have decided, in the exercise of their sovereign rights over their genetic resources and in harmony with the CBD, to establish a multilateral system for access and benefit sharing for a negotiated list of important crops - selected on the basis of their importance for food security and the extent of countries interdependence on access to those resources. For these resources, the Contracting Parties to the Treaty have agreed to forgo their individual rights to negotiate separate access and benefit sharing terms and to insist on giving their prior informed consent on a bilateral basis. For these resources, they have agreed to apply standard terms that have been mutually agreed by all parties on a multilateral basis, in order to ensure the continued flow of those plant genetic resources and to lower the transaction costs involved.
The CBD also left unsettled the issue of the ex situ collections, such as those held by the International Agricultural Research Centres (IARCs) of the Consultative Group on International Agricultural Research (CGIAR), acquired Group of some 40 delegations established by the Commission. At one stage the Chairman convened an informal meeting of experts in Montreux, Switzerland, to help give direction to the negotiations. The Chairman's elements derived from that meeting were indeed instrumental in that respect. The main difficulties arose out of the need to balance access with real benefit sharing, the need to take into account intellectual property issues, and the inherent complexity of the subject matter. prior to the entry into force of the Convention. Resolving the status of these collections was one of the main objectives of the negotiations, and is an important achievement, of the new Treaty.
Both FAO and the Conference of Parties to the CBD have welcomed the Treaty as providing a special solution for plant genetic resources for food and agriculture that is responsive to the needs of farmers, breeders and sustainable agriculture in general.
The original mandate for the negotiation of the Treaty, as given by the FAO Conference in 1993, stressed that the revision of the International Undertaking should be in harmony with the CBD and should deal with the issues of access on mutually agreed terms to PGRFA, including ex situ collections, and the realization of Farmers' Rights. This indeed sums up the essence of the relationship between the Treaty and the CBD. The Convention deals with biological diversity as a whole and sets the framework for its conservation and sustainable use. It creates a series of specific commitments relating to genetic resources, specifically, access and benefit sharing. While addressing economic and social concerns, its objectives are basically environment oriented. The Treaty, on the other hand, deals with the specific issues raised by the conservation and sustainable use of PGRFA, and its objectives are more related to food and agriculture. For the PGRFA that have been deemed especially important for food security and on which countries are most interdependent, as listed in Annex I to the Treaty, the Parties to the Treaty have agreed on a special multilateral system of access and benefit sharing. This is not inconsistent with the Convention, but is an area in which the Parties to the Treaty have agreed that, as between themselves, the terms under which these genetic resources are accessed should be mutually agreed on a multilateral rather than on a bilateral basis, and they are the terms set out in the Treaty itself.
During the final stages of the negotiations of the Treaty, questions arose as to its legal status, and its connection with the CBD. At one stage, it was suggested that the Treaty might become a Protocol to the Convention. In the end, this approach was rejected, and the Treaty was adopted as an independent international agreement under Article XIV of the FAO Constitution. One of the main reasons for this approach was the idea that the Treaty was essentially an agricultural rather than an environmental treaty and as such should be responsive to the needs of the agriculture sector: the agricultural flavour of the Treaty, and the necessary technical support, would best be maintained by locating its Governing Body and Secretariat within FAO. The Treaty, however, expressly recognizes the importance of maintaining close links between the Treaty and both FAO and the Convention.37
The objective of this Guide is to help countries, institutions and individuals to understand the provisions of the Treaty, and to assist them in considering options for its implementation. It does not attempt to provide an authoritative interpretation of the Treaty or to resolve any of the many ambiguities in the text of the Treaty. This is a function for the Contracting Parties themselves, acting in their own countries or in the Governing Body of the Treaty. In keeping with this objective, the Guide is aimed at governments, international institutions, public institutions, civil society organizations, and private entities and individuals who have an interest in the provisions of the new Treaty.
The main components of the Treaty are the general provisions relating to conservation and sustainable use of plant genetic resource for food and agriculture, the provisions on Farmers' Rights, the Multilateral System of Access and Benefit Sharing, Supporting Components and Financial Provisions. The other provisions of the Treaty deal with institutional matters and final clauses.
The general provisions on the conservation and sustainable utilization of PGRFA apply to all PGRFA, and not just those listed in Annex I to the Treaty. Drawing on the Global Plan of Action for the Conservation and Sustainable Use of PGRFA (GPA) (see Box 15), and developing themes already set out in the CBD, the general provisions of the Treaty set a modern framework for the conservation and sustainable utilization of PGRFA. Article 5 sets out the main tasks that Contracting Parties are to carry out with respect to the conservation, exploration, collection, characterization, evaluation and documentation of PGRFA. As with comparable CBD provisions relating to identification, conservation, sustainable use and monitoring of biological diversity, these responsibilities are placed on each Contracting Party, acting individually or where appropriate in cooperation with other Contracting Parties, and call for the promotion of an integrated approach to the exploration, conservation and sustainable use of PGRFA. Article 6 requires the Contracting Parties to develop and maintain appropriate policy and legal measures that promote the sustainable use of PGRFA and gives a nonexhaustive list of the types of measure that may be included. Articles 7 and 8 deal with national commitments, international cooperation and technical assistance.
Article 9 of the Treaty deals with Farmers' Rights, in response to the requests of both the Nairobi Conference for the adoption of the CBD,42 and the 1993 FAO Conference. Article 9 recognizes the contribution of local and indigenous communities and farmers to the conservation and development of plant genetic resources as a basis for food and agriculture production, and places the responsibility for realizing those rights on national governments. The measures that individual Contracting Parties should take include the protection and promotion of: (i) traditional knowledge relevant to PGRFA (Article 9.2(a)); (ii) rights of farmers to participate equitably in the sharing of benefits arising from the utilization of PGRFA (Article 9.2(b)); and (iii) the right to participate in mak ing decisions at the national level with respect to the conservation and sustainable use of PGRFA. The provisions of Article 9 are neutral with respect to the issue of the right of farmers to save, use, exchange and sell farm-saved seed, the so-called “farmers' privilege”, an issue that was hotly contested during the negotiations. The compromise wording of the Treaty recognizes implicitly that farmers may have such rights under national law; if they do have such rights, they are not in any way to be seen as limited by the provisions of Article 9.
A key focus of the Treaty is the Multilateral System of Access and Benefit-sharing established by the Contracting Parties under Part IV. The Multilateral System was established both to facilitate access to genetic resources of major food crops and forage species and to share, in a fair and equitable way, the benefits arising from the utilization of these resources, in accordance with multilaterally agreed terms and conditions.
Many countries wished to see as wide a coverage as possible of crops to be included in the Multilateral System. Others wished to see the Multilateral System starting off with a strictly limited list of the most important crops. In the end, the negotiators agreed on a list of crops, chosen ostensibly according to the criteria of their importance for food security and their interdependence.
In practice the list, set out in Annex I to the Treaty, was negotiated at least in part on the basis of the perceived interests of individual negotiating parties, with some crops important to food security being excluded.43 Nevertheless the list as finally negotiated does include most of the major food crops, including cereals such as rice, wheat, maize, sorghum and millets; grain legumes such as beans, peas, lentils, chickpeas and cowpeas; roots and tubers such as potatoes, sweet potatoes, cassava and yams; oil crops such as coconut, sunflower and the Brassica complex; and fruits such as Citrus, apple and banana/plantain. Missing from the list are a number of crops that might appear to be covered by the criteria of food security and interdependence, such as soybeans, groundnuts, sugar cane, the wild relatives of cassava included in the genus Manihot, several fruits, and tomato.44 In some cases, some species of crops, such as species of maize and Brassicas, have been specifically excluded. In addition to food crops, the list set out in Annex I also includes 29 genera of forages, mainly of temperate origin.
Not all crops on the list, however, are automatically included in the Multilateral System. Only those crops for which some PGRFA are under the management and control of the Contracting Parties, and are in the public domain, are included within the Multilateral System (see Article 11.2). The Multilateral System also includes PGRFA listed in Annex I and held by the IARCs of the CGIAR, or by other entities that have voluntarily included them in the Multilateral System (Article 11.5). The Contracting Parties are required to take appropriate measures to encourage natural and legal persons in their jurisdictions to include their holdings of Annex I PGRFA in the Multilateral System. The Governing Body is to review progress in this regard within a period of two years of the entry into force of the Treaty.
Under (Article 12 of the Treaty, the Contracting Parties agree to take the necessary legal or other appropriate measures to provide facilitated access through the Multilateral System to other Contracting Parties and to legal and natural persons under their jurisdiction. The Article also sets out the terms and conditions that will be applicable for such facilitated access. These include the important condition that access will be provided solely for the purpose of utilization and conservation for research, breeding and training for food and agriculture. Access for other purposes may be subject to future regimes, including those developed by the CBD, as between Parties to that Convention. Recipients of material through the Multilateral System are required not to claim intellectual property or other rights that limit facilitated access to PGRFA, or their genetic parts or components, in the form received from the Multilateral System. As in Article 15.5 of the CBD, access is subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party. Facilitated access is to be accorded through a standard Material Transfer Agreement (MTA) to be adopted by the Governing Body of the Treaty.
Article 13 of the Treaty sets out the agreed terms for benefit sharing within the Multilateral System. First of all, the Contracting Parties recognize that facilitated access to PGRFA itself constitutes a major benefit of the Multilateral System (Article 13.1). Other mechanisms for benefit sharing include the exchange of information, access to and transfer of technology, capacity building, and the sharing of benefits arising from commercialisation (Article 13.2). Commercial benefit sharing is to be achieved through the involvement of the private and public sectors in activities identified in Article 13, through partnerships and collaboration. The most striking innovation in the area of benefit sharing, however, is the agreement that the standard MTA is to include a requirement that recipients that commercialize products that are PGRFA and incorporate materials accessed from the Multilateral System pay to an international fund or other mechanism established by the Governing Body an equitable share of the benefits arising from the commercialisation of the product (Article 13.2(d)). The payment is to be mandatory where restrictions are placed on the availability of the product for further research and breeding, as for example is the case with the taking out of patents in some jurisdictions. Where no such restrictions are placed on further availability for research and breeding, the recipient is not under any obligation to make such a payment, but is encouraged to do so. The level, form and manner of payment, in line with commercial practice, are to be determined by the Governing Body at its first meeting. The Governing Body is empowered, though not obliged, to review the levels of payment, and may also assess, within a period of five years from the entry into force of the Treaty, whether to extend the mandatory payments to cases where no restrictions are placed on availability. The benefits arising from the use of PGRFA are to flow directly or indirectly to farmers in all countries who conserve and utilize PGRFA, especially those in developing countries and countries with economies in transition (Article 13.3).
Part V of the Treaty deals with supporting components for the Treaty. In general these are activities that lie outside the institutional structure of the Treaty itself, but which provide essential support for the proper implementation of the Treaty and its objectives. These include promoting the effective implementation of the rolling GPA, the encouragement of international plant genetic resources networks, and the development and strengthening of a Global Information System on PGRFA, including a periodic assessment of the state of the world's PGRFA.
Of particular importance are the provisions of Article 15 dealing with ex situ collections held by the IARCs of the CGIAR and other international institutions. As noted above, the negotiators were anxious to include the collections of Annex I materials held by the IARCs in the Multilateral System, but the Treaty itself could not deal directly with those collections, because the IARCs have their own international legal personality, and thus cannot be bound without their consent. Since they are not States, they are not entitled to become parties to the Treaty in their own right. A different legal mechanism had to be found to ensure that the IARCs and their collections would be covered. Accordingly, the Treaty now includes a provision calling on the IARCs to sign agreements with the Governing Body to bring their collections within the purview of the Treaty.
PGRFA listed in Annex I that are held by the IARCs are to be made available as part of the Multilateral System. Material held by the IARCs, and collected before the entry into force of the Treaty, that are not listed in Annex I are to be made available in accordance with the MTA currently being used by the IARCs under their in trust agreements with FAO. These MTAs are to be amended by the Governing Body no later than its second session, to bring them into line with the Treaty, including in particular its provisions on facilitated access and benefit sharing under the Multilateral System. Non-Annex I material received by the IARCs after the coming into force of the Treaty are to be made available for access on terms consistent with those agreed between the IARCs and the country of origin of the resources, or the country that acquired them in accordance with the CBD. The Contracting Parties agree to provide IARCs that have signed agreements with the Governing Body with facilitated access to PGRFA covered by the Multilateral System. Parties are also encouraged to provide those IARCs with access, on mutually agreed terms, to non-Annex I material that are important to the programmes and activities of the IARCs.
The Governing Body will also seek to establish similar agreements with other relevant international institutions.
Part VI of the Treaty addresses one of the most important aspects of the Treaty, namely, the financial resources. Article 18 provides that parties that Parties are to implement a funding strategy that will assist in the implementation of the Treaty's activities. The objectives of the strategy are to enhance the availability, transparency, efficiency and effectiveness of the provision of financial resources for the Treaty. The funding strategy will include the financial benefits arising from the commercialisation of plant genetic resources under the Multilateral System, but also includes funds made available through other international mechanisms, funds and bodies. In this connection, the Contracting Parties commit themselves to taking the necessary and appropriate measures to ensure that due priority is given to the effective allocation of predictable and agreed resources for the implementation of plans and programmes under the Treaty. The Governing Body may establish targets for funding for priority activities, plans and programmes. Voluntary contributions may be provided by Contracting Parties and other sources, but this Part does envisage mandatory payments by Contracting Parties.
The Treaty establishes a Governing Body composed of all Contracting Parties. The Governing Body will act as the supreme body for the Treaty and provide policy direction and guidance for the implementation of the Treaty and in particular the Multilateral System. All decisions of the Governing Body are to be taken by consensus, although the Governing Body is empowered to agree by consensus on another method of decision making for all matters other than amendments to the Treaty and to its Annexes. The Treaty also provides for the appointment of a Secretary of the Governing Body. Since the Treaty is adopted under Article XIV of the FAO Constitution, the Secretary is to be appointed by the Director General of FAO, although he is required to seek the approval of the Governing Body for that appointment.
The Treaty was open for signature between 4 November 2001 and 3 November 2002 and is subject to ratification, acceptance or approval. It remains open for accession by all Members of FAO, including Member Organizations such as the European Community, and by other States that are members of the United Nations (UN) or any of its specialized agencies or the International Atomic Energy Agency (IAEA). It entered into force 90 days after the deposit of the fortieth instrument of ratification, acceptance, approval or accession, i.e. on 29 June 2004.
1Article XIV of the FAO Constitution provides that “[t]he Conference may, by a two-thirds majority of the votes cast and in conformity with rules adopted by the Conference, approve and submit to Member Nations conventions and agreements concerning questions relating to food and agriculture”.
2Under the terms of Article XIV, the Conference is required to proceed to a vote on the adoption of conventions. The outcome of the vote is equivalent to an adoption by consensus, in that no Member voted against the adoption of the Treaty.
4Convention on Biological Diversity, 5 June 1992, 31 I.L.M. 818 (1992).
5Decision II/15 of the second Meeting of the Conference of Parties starts with the words “Recognizing the special nature of agricultural biodiversity, its distinctive features and problems needing distinctive solutions”.
6The first paragraph of the Preamble to the Treaty provides that the Contracting Parties are “convinced of the special nature of PGRFA, their distinctive features and problems needing distinctive solutions”.
7See generally, Carlos Correa, Implications of National Access Legislation for Germplasm Flows, Proceedings of the GFAR conference 21–23 May 2003, Dresden, Germany, GFAR/IPGRI, 2003, p. 37.
8As distinct from its usage in the Convention on Biological Diversity, as discussed below.
9Article 2 of the Treaty defines plant genetic resources for food and agriculture as “any genetic material of plant origin of actual or potential value for food and agriculture”. “Genetic material”, in turn, is defined as “any material of plant origin, including reproductive and vegetative propagating material, containing functional units of heredity.”
10See generally, Cooper D., Engels, J. and Frison, E. 1994. A multilateral system for plant genetic resources: imperatives, achievements and challenges. Issues in Genetic Resources No. 2, May 1994. International Plant Genetic Resources Institutes, Rome, Italy.
11In this sense, the distinctive nature of PGRFA raises questions as to the extent to which the definition of country of origin established in the Convention on Biological Diversity can be easily applied to agricultural crops, which are noted for their intra-species diversity. The definition seems to have been more appropriate for the regulation of access to medicinal species found in rain forests. See Cary Fowler, Implementing access and benefit-sharing procedures under the Convention on Biological Diversity: the Dilemma of crop genetic resources and their origins, 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, p. 110.
12World Food Summit Plan of action. Objective 3.1(a), in Report of the World Food Summit, 1996 FAO Doc. WFS 96/REP Part One. The term “food security” has been defined in the World Food Summit Plan of Action. The introduction to the Plan of Action 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”.
13Ximena Flores Palacios, Contribution to the Estimation of countries' interdependence in the area of plant genetic resources, Background Study Paper No. 7, Rev.1.
14Nutritional value of some of the crops under discussion in the development of a multilateral system, Background Study Paper No. 11, April 2001, prepared by the Nutrition Division of FAO.
15I.e. the supply of energy available from foods. For each nutrient, a Nutrition Conversion Factor (NCF) specific to each FAO commodity was selected in the study and used to calculate the energy or nutrient availability from that commodity.
16In Point 17 of their Communiqué adopted in September 2004, the Ministers of Agriculture of the Pacific Region “Acknowledged that access to genetic resources (crop, tree and animal) is necessary to ensure food security in the long-term. Broadening the genetic base of crops, trees and livestock, genetic improvement and diversification are crucial in coping with rapid change. Regional initiatives such as NARI's PARCIP should be supported. Access to and utilization of genetic resources will be enhanced through active participation in PGR networks, both at the regional level (PAPGREN) and at the international level (COGENT and BAPNET). To ensure continued access to genetic resources the countries of the region should consider endorsing the RGC MTA, ratifying the International Treaty, signing the Establishment Agreement for the Global Crop Diversity Trust.”
17See Cary Fowler: Rights and Responsibilities: Linking Conservation, Utilization, and Sharing of Benefits of Plant Genetic Resources, in Intellectual Property Rights III Global Genetic Resources: Access and Property Rights, Eds S. Eberhart, H. Shands, W. Collins & R. Lower, Crop Science Society of America, Madison, Wisconsin, USA 1998, p. 34-35.
18For the full text of the International Undertaking see http://www.fao.org/ag/cgrfa/IU.htm.
19International Undertaking, Article 1.
20International Undertaking, Article 1.
21International Undertaking, Article 5.
22113 countries adhered to the International Undertaking.
23E.g. Australia, Canada, and United States of America.
24E.g. Argentina, Belgium, Bulgaria, Colombia, Cuba, Denmark, Egypt, France, Germany, Hungary, Iceland, Ireland, Israel, Jamaica, Mexico, Netherlands, New Zealand, Oman, Switzerland, United Kingdom, and Zimbabwe.
25FAO Resolutions 4/89 and 5/89.
26The Resolution provides that these rights are vested in the International Community, as trustee for present and future generations of farmers, for the purpose of ensuring full benefits to farmers, and supporting the continuation of their contributions, as well as the attainment of the overall purposes of the International Undertaking.
27Conference Resolution 3/91.
28Conference for the Adoption of the Agreed Text of the Convention on Biological Diversity.
29The Convention does not prescribe how that determination should be made by individual Contracting Parties: in the absence of any such prescription, it could include both determinations at the national level and determinations within the context of a multilateral arrangement.
30Convention on Biological Diversity, Article 15.3.
31See Glowka, et al., A Guide to the Convention on Biological Diversity (IUCN Environmental Policy and Law Paper No. 30) (IUCN, 1994).
32See Final Act of the Conference for the Adoption of the Agreed Text of the Convention on Biological Diversity, 22 May 1992.
33Resolution 3, operative paragraph 4.
34Agenda 21, UN Doc. A/CONF.151/4 (1992).
35While the CBD called on Contracting Parties to endeavour to create conditions to facilitate access to genetic resources, the Convention requires that access be subject to prior informed consent and on mutually agreed terms. Since the CBD operates through legislative, policy and other measures adopted at the national level, these requirements have necessarily been implemented on a bilateral, even a caseby- case basis, thus slowing down the exchange of PGRFA, to such an extent as to endanger plant breeding activities particularly in the developing world and with small scale enterprises.
36See Cooper D., Engels, J. and Frison, E. 1994, p. 4.
37Article 1.2 states that the Treaty's objectives “will be attained by closely linking this Treaty to the Food and Agriculture Organization of the United Nations and to the Convention on Biological Diversity.”
38Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 U.N.T.S. 243 (1976) (entered into force 1 July 1975).
39Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of WildFauna and Flora, 1992 O.J. (L 206) 7.
40The treaty defines biological diversity as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”
41Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, 39 I.L.M.1027 (2000).
42Resolution 3, operative paragraph 4.
43Each country in the negotiations had the opportunity to exclude any crop from the list. In some cases, had countries agreed to include particular crops, this might well have sparked reciprocal concessions from other countries on other crops.
44See H. David Cooper, The International Treaty on Plant Genetic Resources for Food and Agriculture, in Reciel, Vol. 11 No. 1, 2002.
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