RECIEL 11 (1) 2002. ISSN 0962 8797
The International Treaty on Plant Genetic
Resources for Food and Agriculture
INTERATIONAL
ARTICLES
ON BIODIVERSITY
TREATY
Blackwell Publishers
Ltd ON PLANT GENETIC RESOURCES
H. David Cooper
INTRODUCTION
The adoption of the International Treaty on Plant Genetic
Resources for Food and Agriculture (the Treaty)1 by
the Conference of the Food and Agriculture Organization of the United Nations (the FAO Conference) on 3
November 2001 completes one of the tasks set by the
Earth Summit in Rio in 1992.2 As reflected in the Preamble
to the new Treaty, it will also contribute to meeting
the goals of the Rome Declaration on World Food
Security and the World Food Summit Plan of Action.
The objectives of the Treaty are:
the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable
sharing of the benefits arising out of their use, in harmony
with the Convention on Biological Diversity, for sustainable
agriculture and food security.3
The original International Undertaking on Plant
Genetic Resources was a non-binding agreement
adopted by the FAO Conference in 1983.4 Based on the
principle of the heritage of mankind over plant genetic
resources, it provided a framework for international
cooperation in the area of plant genetic resources conservation and use.5 In 1993, the FAO decided, in light
of the 1992 Earth Summit and the adoption of the text
of the Convention on Biological Diversity (CBD),6 to
revise the undertaking, in harmony with the new convention. The negotiations set up in the Commission on
Genetic Resources for Food and Agriculture (CGRFA)
1
International Treaty on Plant Genetic Resources for Food and
Agriculture (Rome, 3 November 2001).
2
United Nations Conference on Environment and Development,
Agenda 21, Chapter 14, Progamme Area 14G: Conservation and
sustainable utilization of plant genetic resources for food and sustainable agriculture (Rio de Janeiro, 14 June 1992), para. 14.60.
3
Treaty, Article 1.
4
Resolution 8/83, Twenty-Second Session of the FAO Conference
(Rome, 23 November 1983).
5
See D. Cooper, ‘The International Undertaking on Plant Genetic
Resources’, 2:2 RECIEL (1993), 158.
6
Convention on Biological Diversity (Rio de Janeiro, 5 June 1992).
7
K. ten Kate and C. Lasén Diaz, ‘The Undertaking Revisited: A
Commentary on the Revision of the International Undertaking on
Plant Genetic Resources for Food and Agriculture’, 6:3 RECIEL
(1997), 284.
for this purpose were often difficult and took over 7
years to complete.7 The difficulties encountered in the
negotiations reflect various complexities in reconciling
the need for facilitating access to the genetic resources
of food crops with the sovereign rights of countries,
and in balancing the divergent but interacting interests of farmers, public- and private-sector breeders,
biotechnology companies, and others. Initial progress
was particularly slow and negotiations ground to a
halt in 1998. The impasse was overcome following
agreement on key elements of the Treaty by an informal group of negotiators meeting in their personal
capacities in Montreux, Switzerland in January 1999.
It then took almost 3 more years to finalize the Treaty,
most of the work being done by a Chair’s Contact
Group of about 40 countries (see Table 1).
The centrepiece of the Treaty is its ‘multilateral system
for access and benefit sharing’,8 which guarantees
facilitated access to genetic resources of major food
crops and forage species. Access to a wide genetic base
of crop plants will allow the development of improved
crop varieties, and thus help to meet the demands of
producing more food, producing it more sustainably
and addressing challenges such as climate change.
It will also allow farmers (particularly those working
under difficult conditions in the poorest countries) to
have access to the resources they need to guarantee
their own food security, and help ensure that small
breeding companies and entrepreneurial farmers can
compete with large companies and contribute to economic development.
Access is only one side of the Treaty. For the first time,
access to genetic resources is matched on a multilateral
basis with guaranteed benefit sharing. Taking into
account also its detailed provisions on the conservation and sustainable use of plant genetic resources for
food and agriculture (PGRFA), the Treaty has the
potential to make an important contribution to global
food security and sustainable agriculture.
This article analyses the main features of the Treaty,
reviews some of the major issues at stake during the
negotiations and considers its relationship to the CBD.
8
Treaty, Part IV, Articles 10, 11, 12 and 13.
© Blackwell Publishers Ltd. 2002, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
1
H. DAVID COOPER
RECIEL 11 (1) 2002
TABLE 1 MILESTONES IN THE NEGOTIATING PROCESS
November 1993, Rome
FAO Conference adopted Resolution 7/93 mandating negotiations in the Commission on
Genetic Resources for Food and Agriculture (CGRFA)
1994 –1997, Rome
Four sessions of the Commission were held, at which the 1983 text was integrated with
subsequent resolutions, and new texts for scope, availability and farmers’ rights, and
various proposals for a list of crops, were tabled
December 1997, Rome
Progress by the Commission at its Fourth Extraordinary Session was achieved on several
Articles on the basis of a text proposed by the African Group, resulting in the first fairly
complete consolidated text
June 1998, Rome
Negotiations at the Fifth Extraordinary Session became deadlocked on the issues of
access and benefit sharing, farmers’ rights and financial resources
January 1999, Montreux
Agreement was reached by an informal group on key elements for the agreement to
guide the subsequent negotiations
April 1999, Rome
Progress was made on the basis of a composite text incorporating the chairman’s
elements made by the Chair’s Contact Group during the Eighth Regular Session of the
Commission. Agreement reached on farmers’ rights
August 2000, Tehran
The Third Session of the Chair’s Contact Group achieved a breakthrough on the
provisions for commercial benefit sharing. The breakthrough was inspired by, but not
identical to, an earlier proposal of the International Seed Trade Federation/International
Association of Plant Breeders (FIS/ASSINSEL). The agreement was later revised,
following pressure from various countries
April 2001, Spoletto
A list of crops was put in place by the Sixth Session of the Chair’s Contact Group.
Development of legal and institutional matters and crystallization of a compromise on
intellectual property rights were achieved
June 2001, Rome
During penultimate negotiations in an extraordinary session of the full Commission,
major concessions on the coverage of a multilateral system were made, increasing the
prospect of most countries adhering to the new agreement
October 2001, Rome
The final text was prepared by a working group established by the FAO Council.
Disagreement on intellectual property rights remained.
3 November 2001, Rome
FAO Conference adopted the International Treaty on Plant Genetic Resources for Food
and Agriculture
A COMPREHENSIVE TREATY
The Treaty is a comprehensive agreement, the
objective of which is to achieve the conservation and
sustainable use of PGRFA, and the fair and equitable sharing of benefits derived from their use, in
harmony with the CBD. Its goal is the attainment of
sustainable agriculture and food security.9 The objectives are to be attained by closely linking the International Treaty to both the FAO and the CBD. The
Treaty covers all PGRFA.10 The definitions used in the
Treaty are largely derived from and consistent with
those in the CBD.11 Under its general obligations,12
9
Ibid., Article 1.
Ibid., Article 3. As described later, some of the provisions for
access and benefit sharing apply only to certain categories of
PGRFA (see ibid., Articles 11, 12, 13 and 15).
11
Nevertheless, agreement on certain definitions (ibid., Article 2)
was difficult to achieve. For example, whether or not PGRFA should
include ‘parts and components’ and the implications of this for the
application of intellectual property rights were difficult issues. New
definitions were agreed for ‘variety’ and ‘centre of crop diversity’.
12
Treaty, Article 4.
10
© Blackwell Publishers Ltd. 2002.
2
parties are to ensure the conformity of their laws,
regulations and procedures with their obligations under
the Treaty.
A MODERN FRAMEWORK FOR
THE CONSERVATION AND
SUSTAINABLE USE OF PLANT
GENETIC RESOURCES
The Treaty includes provisions for the conservation
and sustainable use of PGRFA in its Articles 5 and 6.
Though overshadowed in the negotiating process by
the more contentious issues related to access and
benefit sharing, finance and intellectual property
rights, these provisions are central to the Treaty and
they provide a modern framework for action towards
the conservation and sustainable use of PGRFA. They
develop various themes in the CBD while providing
the specificity for PGRFA, which is lacking in the
Convention. The Treaty draws upon the Global Plan
of Action for the Conservation and Sustainable Use
RECIEL 11 (1) 2002
of PGRFA (the Global Plan of Action) – an agreed
framework for the conservation and sustainable use
of PGRFA adopted by 150 countries at the Leipzig
International Technical Conference in 199613 and
subsequently endorsed by the FAO Conference and
the Conference of the Parties to the CBD.14 Attention
is given to conserving diversity at the genetic, species
and agro-ecosystem levels.
INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES
strategies and action plans (NBSAPs) into sectoral and
inter-sectoral policies.17
RECOGNITION OF FARMERS’
RIGHTS
Article 9 of the Treaty states that parties are to:
Article 5 of the Treaty calls for an integrated approach
to the exploration, conservation and sustainable use of
PGRFA and includes specific provisions on surveying,
inventorying and collecting PGRFA as well as on insitu and ex-situ conservation. Explicit reference is
given to ‘on-farm’ conservation by farmers, as distinct
from in-situ conservation of wild PGRFA. This is an
example of greater specificity in the Treaty as compared to the CBD. Consistent with the CBD, in the
provisions for the conservation of wild PGRFA (for
instance wild crop relatives and wild plants for food
production) emphasis is given to supporting the
efforts of indigenous and local communities. As concerns ex-situ conservation, the focus is for parties to
cooperate in promoting an efficient and sustainable
system, echoing the Global Plan of Action, which notes
the need for a more rationale system of genebanks
that avoids, for example, unnecessary duplication
between collections.15
The Treaty’s Article 6 requires parties to develop and
maintain appropriate policy and legal measures that
promote the sustainable use of PGRFA. Measures for
sustainable use include those aimed at improving the
use of plant genetic resources through plant breeding
by farmers and professional breeders alike, as well as
promoting diversity at all levels. This includes the
deployment of genetic diversity on farms, the use of a
wider range of species (including locally adapted varieties and underutilized crops), and promoting diverse
farming systems.16
Article 7 of the Treaty calls for integration of these
activities into agricultural and rural development
programmes and policies. This complements Article 6
of the CBD in the integration of national biodiversity
13
Global Plan of Action for the Conservation and Sustainable Use
of PGRFA (Leipzig, 23 June 1996).
14
CBD, Decision III/11 of the Conference of the Parties (Buenos
Aires, 1996).
15
See n. 13 above, at Activity 5.
16
Article 6 of the Treaty draws upon what the Conference of the
Parties of the CBD identifies as the key elements of the Global Plan
of Action. These elements are the broadening of the genetic base of
major crops, the increasing of the range of genetic diversity available
to farmers, the strengthening of the capacity to develop new crops
and varieties that are specifically adapted to local environments, the
exploration and promotion of the use of underutilized crops, and the
deployment of genetic diversity to reduce crop vulnerability (see
CBD, Decision III/11, at para. 16(a)).
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 for the conservation and development of plant genetic resources
which constitute the basis of food and agriculture production throughout the world.
As indicated in the Preamble to the Treaty, this
recognition is the basis for ‘farmers’ rights’. Farmers’
rights is a subject that was originally introduced by the
FAO Conference in 1989 by its Resolution C5/89.18
Although this resolution was adopted by consensus,
the topic of farmers’ rights has attracted much interest
and controversy since that time. The subject occupied
considerable negotiating time during the revision of
the undertaking, with a substantial ‘bundle of rights’
being discussed.19 By comparison, the provisions in the
final text of the Treaty are relatively concise.
The Treaty provides for three substantive elements of
farmers’ rights:20
• protection of relevant traditional knowledge (echoing Article 8(j) of the CBD);
• the right of farmers to participate equitably in
sharing benefits arising from the utilization of
PGRFA; and
• the right of farmers to participate in making decisions at national levels.
These are important substantive provisions. The right
to participate equitably in sharing benefits is a significant addition to the rights of farmers, indigenous
peoples and local communities, and, potentially, to
the benefits that might accrue to them. The text goes
further than Article 8(j) of the CBD in this respect.
Perhaps more important still is the right to participate
in making decisions at the national level on matters
related to the conservation and sustainable use of
PGRFA. This includes, for example, decisions relating
to the implementation of the Global Plan of Action,
and thus reinforces the call in the Plan itself for the
involvement of all stakeholders.
17
Article 7 of the Treaty also sets out the main areas of international collaboration as discussed later in this article.
18
See n. 5 above.
19
See n. 7 above.
20
Treaty, Article 9(2).
© Blackwell Publishers Ltd. 2002.
3
H. DAVID COOPER
The operational provisions of the Treaty leave responsibility for realizing farmers’ rights to national governments.21 However, the Preamble includes a reference,
added during the final stages of negotiations, to the
promotion of farmers’ rights at international as well as
national levels.22
In Article 9(3), the Treaty specifies that:
nothing in this Article shall be interpreted to limit any
rights that farmers have to save, use, exchange and sell
farm-saved seed/propagating material, subject to national
law and as appropriate.
This is a neutral provision, negotiated during a late
night session of the Chair’s Contact Group, that fails
to reflect the element which was informally agreed at
Montreux on:
the right to use, exchange, and in the case of landraces and
varieties that are no longer registered, market farm-saved
seed.23
Due to this omission and because of the limitation
of responsibility for implementation to the national
level, the agreed text was viewed with disappointment
by many civil society organizations that have campaigned for farmers’ rights over the past two decades.24
In addition to the substantive elements of Article 9(2)
of the Treaty, the basis for farmers’ rights is reflected
in the provisions on both benefit sharing and finance,
which are essentially international in nature. Article
13(3) of the Treaty states that:
[t]he Contracting Parties agree that benefits arising from
the use of plant genetic resources for food and agriculture
... should flow primarily, directly and indirectly, to farmers
who conserve and sustainably utilize plant genetic resources
for food and agriculture.
Article 18(5) elaborates these ideas, stating that:
priority will be given to the implementation of agreed plans
and programmes for farmers in developing countries, especially in least developed countries, and in countries with
economies in transition, who conserve and sustainably
utilize PGRFA.
RECIEL 11 (1) 2002
There also are provisions for the transfer of technologies for the benefit of farmers in Article 13(2)(b)(iii),
and as already noted above, a farmer focus is evident
in Articles 5 and 6 of the Treaty.
THE MULTILATERAL SYSTEM
FOR ACCESS AND BENEFIT
SHARING
ESTABLISHMENT OF THE
MULTILATERAL SYSTEM FOR
ACCESS AND BENEFIT SHARING
The centrepiece of the Treaty is a ‘multilateral system
for access and benefit sharing’, which for certain categories of PGRFA (as discussed in the next section)
guarantees facilitated access in return for benefit sharing. The logic of such a system, at least for the major
crops, is overwhelming for various reasons.25 First, as
acknowledged in the Preamble to the Treaty, agriculture in all countries depends largely on PGRFA that
originated elsewhere. Second, future advances in crop
improvements, which are needed for sustainable agriculture and food security, require continued access to
a wide genetic base without major restrictions. Third,
due to movements of people and resources over past
millennia, as well as to modern collecting efforts, the
genetic resources of major crops are already widely
distributed ex situ, both in genebanks and in production areas and, thus, attribution of country of origin is
often very difficult.26
Agreement to establish a multilateral system was not
reached easily. Countries were careful not to undermine the provisions of the CBD.27 Article 15 of the
CBD, recognizing sovereign rights of States over their
own natural resources, establishes that the authority
to determine access to genetic resources rests with
national governments. Access must be on mutually
agreed terms and subject to the prior informed consent of the providing country, unless otherwise determined by the party concerned.
25
21
Ibid. Some countries already have legislation containing provisions for farmers’ rights with regard to equitable sharing of benefits
(see, for instance, Indian Protection of Plant Varieties and Farmers’
Rights Act No. 53 of 31 August 2001).
22
In any case, the governing body could decide to review national
implementation of this Article as part of the compliance procedures
provided in Article 21 of the Treaty.
23
CGRFA-8/99/Rep (FAO, 1999), at F2.
24
See, for example, GRAIN, ‘A Disappointing Compromise’, 18:4
Seedling (2001), 2. See also ETC Group, ‘The Law of the Seed’, 3:1
Translator (2001).
© Blackwell Publishers Ltd. 2002.
4
D. Cooper et al., ‘A Multilateral System for Plant Genetic
Resources: Imperatives, Achievements and Challenges’, Issues in
Genetic Resources 2 (IPERI, 1994).
26
Ibid. See also C. Fowler et al., ‘Unequal Exchange? Recent
Transfers of Agricultural Resources and their Implications for Developing Countries’, 19:2 Development Policy Review (2001), 181; J.R.
Kloppenburg and D.L. Kleinman, ‘Plant Germplasm Controversy –
Analyzing Empirically the Distribution of the World’s Plant Genetic
Resources’, 37:3 Bioscience (1987), 190.
27
Note that at the time that these matters were being addressed,
the CBD had only recently been negotiated. It entered into force a
few weeks after the FAO Resolution 7/93 (Rome, November 1999)
initiating the negotiations for the revision of the undertaking.
RECIEL 11 (1) 2002
Article 10 of the Treaty states, even more clearly than
the Convention itself, that ‘[p]arties recognize the
sovereign rights of States over their own plant genetic
resources for food and agriculture’ and repeats that
‘the authority to determine access to those resources
rests with national governments’. Article 10(2) and the
Preamble to the Treaty emphasize that the establishment of a multilateral system is made by the parties
‘in the exercise of their sovereign rights’.28 By agreeing to the terms of the Treaty, parties to the CBD, in
effect, would be determining that for access to a defined
sub-category of PGRFA, prior informed consent would
not be required on each and every occasion, but rather
that a multilaterally determined set of mutually agreed
terms (as set out in Articles 12 and 13 of the Treaty)
would apply. The provisions in the Treaty for a special
multilateral approach to access and benefit sharing
can be seen therefore as a particular way of applying
Article 15(2) of the CBD, which states that:
[parties] shall endeavour to create conditions to facilitate
access to genetic resources for environmentally sound uses
by other Contracting Parties and not to impose restrictions
that run counter to the objectives of this Convention.29
Along with rooting the establishment of the multilateral
system in the exercise of sovereign rights, Article 10 of
the Treaty carefully balances access and benefit sharing, specifying that these should be ‘complementary’
and ‘mutually reinforcing’.
COVERAGE OF THE
MULTILATERAL SYSTEM
In the early phase of negotiations, much time was
spent debating the scope of the revised undertaking.
Ultimately, it was agreed that while the scope of the
Treaty in general – as defined in Article 3 – would be
simply ‘plant genetic resources for food and agriculture’, the multilateral system would only apply to a list
of crops. This is because certain countries that are
generally rich in biodiversity – even if not particularly
28
Treaty, Article 10(2).
At its Second Meeting in 1995, the Conference of the Parties to
the CBD, recognizing the special nature of agricultural biodiversity,
its distinctive features and its distinctive problems, declared its support for the process engaged by the CGRFA for the revision of the
International Undertaking to harmonize it with the Convention. This
support was reaffirmed at subsequent meetings. At its Fifth Meeting, the Conference of the Parties stressed that, in developing
national legislation on access, it was important that parties take into
account and allow for the development of a multilateral system to
facilitate access and benefit sharing in the context of the Treaty. The
draft ‘Bonn Guidelines on Access and Benefit Sharing’ (developed
subsequently in the framework of the CBD to serve as inputs to the
development of national legislation or contracts under mutually
agreed terms for access and benefit sharing) indicates that such
national legislation should be without prejudice to the access and
benefit-sharing provisions of the Treaty.
29
INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES
so in PGRFA – wanted to limit the application of the
multilateral system, thereby leaving the potential for
bilateral arrangements under Article 15 of the CBD to
be applied for all other plant genetic resources, including medicinal plants and others that may have potential value under bilateral deals. In the same vein, it
was agreed that material made available through the
multilateral system should be ‘provided solely for the
purpose of utilization and conservation for research,
breeding, and training’ related to food and agriculture.30 Chemical, pharmaceutical and/or other industrial uses beyond food and animal feed are excluded.31
The finalized list (Annex 1 of the Treaty) comprises
35 crops, applying, in most cases, to the level of the
genus. It includes most 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 potato,
sweet potato, cassava and yams), plus a list of forages
(32 genera). According to Article 11 of the Treaty, the
list is ‘established according to criteria of food security
and interdependence’. Obviously, there is no foolproof
or completely objective means of constructing such a
list and, indeed, the final list was the result of extensive negotiations between regions.
The most widely quoted indicators of importance for
global food security are total global production and
contribution to human dietary intake of energy, protein or fat, aggregated at a global scale. Use of these
indicators can be extended to include crops that are
important to particular regions of the world, even if
they do not rank highly at the global level.32 Obvious
crops missing from Annex 1 that might be expected to
feature on a list constructed on such a basis include
soybean, groundnuts, sugar cane, the wild relatives of
cassava included in the genus Manihot and, perhaps,
tomato.33 On the other hand, the agreed list does
include some staple crops of importance only for
specific regions or localities (for instance taro,
cocoyam, grass-pea) and some fruit and vegetable
crops (such as asparagus and apple). Forages on the
agreed list are largely of temperate origins. The list is
under-representative of African forage grasses and
Latin American forage legumes. The absence of industrial crops like tea, coffee, rubber and oil-palm is not
surprising given the prevalence of bilateral or commercial arrangements for these commodities;
although such crops can have important roles in food
security in some regions (such as oil-palm in Africa).
30
Treaty, Article 12(3)(a).
Ibid.
32
See FAO, The State of the World’s Plant Genetic Resources
(FAO, 1998), 14.
33
See M. de Mirando Santos, ‘A List of Food Crop Genera to Compose the Annex to the International Undertaking’, in M. Broggio
(ed.), Exploring Options for the List Approach (Istituto Asgronomico
per l’Oltremare, 1999), 129.
31
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H. DAVID COOPER
With the exception of the few crops noted above, the
list is a fairly comprehensive one in respect of the
globally and regionally important staples. Of course,
food security and health depend on a wider range of
plant species than can be accommodated on any manageable list. Different species of minor staples are
important for local food security in different locations.
Beyond cultivated crops, harvested wild species and
‘weeds’ are also important for food security. Also,
research has shown that an even larger group of plants
may be essential for their pharmacological properties.34 If all these were aggregated globally, a vast
number of species would be involved.35 No list could
ever accommodate all such species without becoming
unworkable.
The international exchange of germplasm is less
important for locally specific crops than for global
commodities such as rice, wheat and maize. However,
conservation and improvement of such local crops is
important in addressing food security and agricultural
development. This is particularly so, given that locally
specific staple crops are proportionately more important in the diets of rural poor people, especially in
developing countries. It is vital, therefore, that attention is given to underutilized crops, as provided for in
the Global Plan of Action. Given the broad scope of
Article 3 of the Treaty, there is no reason why the limited size of the list should be used to justify a weakening of efforts in this regard.36
Not all the PGRFA of the crops in Annex 1 of the
Treaty are automatically included in the multilateral
system. Rather the resources are limited to:
• PGRFA under the management and control of
parties and in the public domain, such as national
genebanks (subject to additional conditions as
described below);37 and
• material in the genebanks of the International
Agricultural Research Centres and other international institutions, as provided for in Article 15 of
the Treaty.38
Other holders of PGRFA on the list in Annex 1 are
invited to include such material in the multilateral
system ‘with a view to achieving the fullest possible
coverage’.39
34
T. Johns, ‘Phytochemicals as Evolutionary Mediators of Human
Nutritional Physiology’, 34 International Journal of Pharmacognosy
(1996), 327.
35
R. Prescott Allan and C. Prescott Allan, ‘How Many Plants Feed
the World?’, 4:4 Conservation Biology (1990), 365.
36
However, if transboundary access to genetic resources is required
in this respect, appropriate terms would need to be agreed in
accordance with the Treaty and the CBD (as applicable).
37
Treaty, Article 11(2).
38
Ibid., Article 11(5).
39
Ibid., Article 11(2).
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6
RECIEL 11 (1) 2002
Article 11(2), limiting material in the multilateral system to PGRFA under the management and control of
parties and in the public domain, was inserted late in
the negotiations to protect private interests. As property rights in the material found in the collections are
to be respected,40 many delegates thought this additional restriction was unnecessary or even counter to
the spirit of the agreement. As a result, the limitation
is balanced by three provisos. The first proviso is that
parties agree to take measures to encourage natural
and legal persons under their jurisdiction to include
in the multilateral system the listed PGRFA that
they hold.41 Second, there is a built-in review by the
governing body to assess progress on these measures
within 2 years of the entry into force of the Treaty.42
Third, there is provision for the governing body,
following the review, to decide whether or not access
shall continue to be facilitated to those natural and
legal persons.43 Thus, the review will have significance and there are strong incentives for parties to
ensure that not only national collections, but also
other public collections – such as those held by universities and independent research institutes – and
private collections, are included in the multilateral
system.
In defining the coverage of the multilateral system,
Article 11 makes no distinction between pre-existing
material held and material acquired after entry into
force of the Treaty.44 Material collected before and
after entry into force of the CBD are also treated
equally. Thus, for PGRFA of crops included in Annex
1, the Treaty resolves the status of ex-situ collections
acquired not in accordance with the CBD, as requested
in the Nairobi Final Act.45
TERMS OF ACCESS FOR THE
MULTILATERAL SYSTEM
In Article 12, the Treaty provides for facilitated access
to material in the multilateral system for the purposes
of food and agriculture research, breeding and training in this area. Parties are to take the necessary steps
to provide such access to other parties and to legal
and natural persons under the jurisdiction of any
party.46 However, as noted above, provision to legal
and natural persons is subject to the review by the
40
Ibid., Article 12(3)(f).
Ibid., Article 11(3).
42
Ibid., Article 11(4).
43
Ibid.
44
However, as noted in the next section, parties are obliged to apply
the terms of ‘facilitated access’ (Article 12(3) and (4)) to material
acquired on these terms.
45
United Nations Environment Programme, Nairobi Final Act of the
Conference for the Adoption of the Agreed Text of the Convention
on Biological Diversity (Nairobi, 22 May, 1992), Resolution 3, para. 4.
46
Treaty, Article 12(2).
41
RECIEL 11 (1) 2002
governing body of the inclusion of material in private
genebanks.47
Facilitated access is to be accorded ‘expeditiously
without the need to track individual accessions’.48 It
should be free of charge or with a fee to cover the
minimal cost involved.49 ‘Passport data’ and other nonconfidential information is to be made available with
the samples.50 Facilitated access is subject to various
property rights and conditions. Intellectual property
rights and other property rights must be respected.51
This means, for example, that material protected by
plant breeders’ rights (otherwise known as plant variety protection) and patents will be made available in
accordance with those rights. Furthermore, access to
material under development, including material being
developed by farmers, shall be at the discretion of its
developer during the period of its development.52 This
means that breeders’ lines, for example, do not have to
be released. Finally, in-situ material shall be provided
according to national legislation, or in its absence,
according to standards that may be set by the governing body.53 This may allow for additional protection,
such as legislation reflecting the interests of indigenous peoples and local communities or the State.
Conceivably, the International Code for Germplasm
Collecting and Transfer (adopted by the FAO Conference in 1993) may be adapted for this purpose.
However, Article 12(3)(h) states that this provision is
‘without prejudice to the other provisions under this
Article’. Thus, legislation in place in some countries
that poses additional conditions may need to be
adjusted, if those conditions are incompatible with the
provisions of Article 12 of the Treaty. An additional
condition is that:
[r]ecipients shall not claim any intellectual property or
other rights that limit the facilitated access to the plant
genetic resources for food and agriculture, or their genetic
parts or components, in the form received from the Multilateral System.54
This is discussed in the next section.
Article 12 of the Treaty specifies that facilitated access
shall be in accordance with the provisions of the
Treaty, therefore the benefit-sharing provisions (discussed below) are also conditions on such access.
Finally, PGRFA accessed under the multilateral system must continue to be available under the terms of
the Treaty. Article 12 provides for facilitated access to
INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES
PGRFA in the multilateral system in emergency disaster situations, for the purpose of contributing to the
re-establishment of agricultural systems, in cooperation with disaster relief coordinators.55 Although not
providing any special conditions, the presence of this
provision reinforces the recognition of the need for
expeditious access in such cases.
Facilitated access must be pursuant to a standard
material transfer agreement (MTA), reflecting the
conditions of use, limitation of intellectual property
rights and continued availability for access, as well as
conditions for commercial benefit sharing and any
other relevant provisions of the Treaty.56 MTAs are a
form of contract between the provider and recipient of
material that specifies conditions as to the use of the
material. A standard MTA is to be adopted by the
governing body, on the basis of a recommendation
of the interim committee established to make initial
preparations for the implementation of the Treaty.57
The recommendation of the interim committee shall
be prepared on the basis of work by a group of experts
to be appointed according to criteria established by
the interim committee.
Since the Montreux meeting in 1999, it had been
assumed by most participants and observers in the
negotiations that, consistent with the idea that that
access shall be ‘without the need to track individual
accessions’,58 MTAs would not be necessary. However,
provision for an MTA was introduced during the
penultimate negotiating session in June 2001 at Rome.
This provision has the effect of reducing transactions
to the level of a contract between legal persons. As
stated in Article 12(5), ‘obligations arising under such
MTAs rest exclusively with the parties to those MTAs’.
This does not change, however, the basic obligation in
Article 12(2) which stipulates that parties agree to take
measures to provide access to other parties.59 Furthermore, parties are to ensure that parties to an MTA
have an opportunity to seek legal recourse. Under
Article 21, the governing body may approve measures,
such as monitoring and offering legal advice or assistance, to promote compliance and address issues of
non-compliance. Provision of legal advice and assistance may be particularly important in strengthening
the capacity of developing countries and countries
with economies in transition, and to follow up on the
implementation of MTAs.
55
47
48
49
50
51
52
53
54
Ibid.,
Ibid.,
Ibid.
Ibid.,
Ibid.,
Ibid.,
Ibid.,
Ibid.,
Article 11(4).
Article 12(3)(b).
Article
Article
Article
Article
Article
12(3)(c).
12(3)(f ).
12(3)(e).
12(3)(h).
12(3)(d).
Ibid., Article 12(6).
Ibid., Article 12(4).
57
The Interim Committee is established by the FAO Conference
Resolution adopting the text of the Treaty (see FAO Resolution
3/2001 (Rome, 3 November 2001), Article B).
58
See n. 23 above, at F2.
59
As described in the previous section, access to legal and natural
persons may become conditional following the governing body’s
assessment of the implementation of Article 11(3) of the Treaty.
56
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7
H. DAVID COOPER
The terms of access under the multilateral system
described above apply to ‘facilitated access’. Under the
Treaty, a party is obliged to provide access to PGRFA
listed in the multilateral system on these terms:
(a) when requested to do so by another party;60 and
(b) when such PGRFA has been acquired under these
same terms.61 Beyond these cases, the Treaty does not
stipulate when these terms should be applied, or when
MTAs should be used.62 This will be determined by the
practice of parties and international institutes, and in
light of decisions of the governing body. In practice,
and in order to apply a single set of conditions for all
transfers, parties and international institutes could
decide to provide and acquire all material according
to the terms of ‘facilitated access’ in Article 12(3)
and 12(4), thus both simplifying the administration
of access and optimizing the sharing of benefits.63
CONDITIONS RELATING TO
INTELLECTUAL PROPERTY
RIGHTS
The provision on intellectual property rights (Article
12(3)(d)) was one of the most controversial points in
the Treaty negotiations. In fact, it was the last issue to
be finalized, and only then by a vote at the FAO Conference in which ten countries supported its removal.
Two countries (USA and Japan) abstained from the
vote to adopt the Treaty because, or partly because, of
this provision.64
During the negotiations, all countries agreed that intellectual property rights (patents and plant breeders’
rights) should not be applied to the PGRFA in the
form that they are actually received from the multilateral system.65 An equivalent condition is contained
in the ‘in-trust’ agreement between the FAO and the
International Agricultural Research Centres,66 and as
60
And, subject to Article 11(4), when requested by any legal or
natural person under the jurisdiction of a party or by an international
institute that has signed an agreement with the governing body.
See Treaty, Articles 12(2) and 15(2) and (5).
61
Treaty, Article 12(4).
62
During the last phase of the negotiations in the open-ended working group established by the FAO Council, the United States proposed text stating that the establishment of the multilateral system
did not preclude access being requested and provided outside the
scope of the Treaty (see FAO, International Undertaking on Plant
Genetic Resources: Information Pursuant to Rule XXI.1 of the
General Rules of the Organization (CL 121/5-Supp.1, 2001), at 22).
However, this proposal was not accepted by the working group.
63
In any event, it is expected that over time, more and more transfers will be subject to the conditions of Article 12 as obligations in
MTAs to pass on such conditions accrue.
64
The main reason stated by the USA was the absence of a clause
on national security (see FAO, Verbatim Record of the Thirty-First
Session of the Conference (C 2001/PV/4, 2002)).
65
Treaty, Article 12(3)(d).
66
See FAO/CGIAR, Agreement Between the International Agricultural Research Centres and the FAO Placing Collections of Plant
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8
RECIEL 11 (1) 2002
such has been endorsed by the CGFRA. Indeed, intellectual property rights cannot – or should not – be
taken out on such material in any event.
Questions were raised whether intellectual property
rights should be taken out on ‘components’ or ‘derivatives’ of PGRFA from the multilateral system. Eventually,
developing countries acknowledged that intellectual
property rights can be taken out on derivatives
(indeed, in effect, the commercial benefit-sharing
mechanism in Article 13(2)(d)(ii) of the Treaty is
triggered by patents on derivatives). Developing
countries were not prepared, however, to accept the
legitimacy of patents on ‘parts and components’ of
PGRFA accessed through the multilateral system. After
all, under bilateral arrangements (as provided for
under the CBD), the providing countries have the possible opportunity to include limits to recipients’ use
of intellectual property rights in the mutually agreed
terms of access. However, once providing countries
have agreed on multilateral terms in the Treaty, they
no longer have such leverage. Thus, developing
countries were determined to include at least some
minimal restrictions on claims of intellectual property
rights.67
The European Union and the developing countries
eventually agreed on a compromise text, which states
that:
[r]ecipients shall not claim any intellectual property or
other rights that limit the facilitated access to the plant
genetic resources for food and agriculture, or their genetic
parts or components, in the form received from the Multilateral System.68
Most countries of the Organization for Economic
Cooperation and Development were prepared to agree
to the compromise, although on adoption of the Treaty
some expressed their regrets as to the ambiguity of
this text. These countries (Canada and Australia) and
Switzerland indicated that in supporting adoption of
Germplasm under the Auspices of FAO (Washington, 26 October
1994). The Agreement states at Article 3(b): ‘The Centre shall
not claim legal ownership over the designated germplasm, nor shall
it seek any intellectual property rights over that germplasm or
related information’. At Article 9, it states that ‘[w]here samples of
the designated germplasm and/or related information are transferred to any other person or institution, the Centre shall ensure that
such other person or institution, and any further entity receiving
samples of the designated germplasm from such person or institution, are bound by the conditions set out in Article 3 (b)’. Note that
this is a model agreement. A number of identical agreements
between the FAO and each of the IARCs were signed on 26 October 1994.
67
M. Byström, P. Einarsson and G. Axelsson Nycander, Fair and
Equitable: Sharing the Benefits from the use of Genetic Resources
and Traditional Knowledge (Swedish Council on Biological Diversity,
1999).
68
Treaty, Article 12(2)(d).
RECIEL 11 (1) 2002
the Treaty, they understood that the wording would
not impinge in any way on national intellectual property rights, laws or policies. The European Union, for
its part, indicated that its interpretation of the text
was that parts and components that were the subject
of innovations could, in fact, be the object of intellectual property rights. The developing countries
emphasized the importance of avoiding applications of
intellectual property rights that would restrict access
to PGRFA.69 In all likelihood, the governing body will
review this matter when the Treaty has entered into
force.
The issues affecting intellectual property rights are
significant because in some legal jurisdictions it is
possible to patent DNA sequences that have been
isolated from plant material without any structural
modification. A patent holder could restrict use of
such protected material by others, even if it was
obtained from material from the multilateral system.
While to some developed countries allowing such
patents is considered necessary to encourage innovation, to others – developed and developing countries
alike – it amounts to a misappropriation of resources
and is contrary to the spirit of the Treaty.70
BENEFIT SHARING UNDER THE
MULTILATERAL SYSTEM
Article 13 of the Treaty provides that benefits arising
from the use, including commercial use, of PGRFA
under the multilateral system shall be shared fairly
and equitably through the exchange of information,
access to and transfer of technology, capacity building
and the sharing of the benefits arising from commercialization. For commercial use, the Treaty also
includes provisions for public–private partnerships
and for monetary benefit sharing. Additionally, the
parties are to consider modalities of a strategy of
voluntary benefit-sharing contributions from foodprocessing industries.
INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES
As with the CBD,73 access to and transfer of technologies, including those protected by intellectual property
rights, shall be provided and/or facilitated under
fair and equitable terms to developing countries and
countries with economies in transition. As in the
CBD, Article 13 of the Treaty also provides that such
access and transfer shall respect intellectual property
rights.74
A set of measures for technology transfer is specified in Article 13 of the Treaty, including the use
of crop-based thematic groups on the utilization of
PGRFA, partnerships in research and development,
commercial joint ventures, human resource development and effective access to research facilities.75 Related
measures are provided for under capacity building,
including those that establish and/or strengthen programmes for scientific and technical education and
training, those that develop and strengthen facilities
for conservation and sustainable use of PGRFA, and
those that improve scientific research in developing
countries or in cooperation with developing country
institutions.76 The Treaty also provides for exchange
of information on PGRFA under the multilateral
system and associated technologies and research
results.77
The Treaty contains special provisions for monetary
benefit sharing in the cases of commercialization
of products that are PGRFA and that incorporate
material accessed from the multilateral system. Article
13(2)(d)(ii) of the Treaty states that:
recipients shall pay to [a] mechanism . . . an equitable share
of the benefits arising from the commercialization of that
product, except whenever such a product is available without restriction to others for further research and breeding,
in which case the recipient who commercializes shall be
encouraged to make such payment.
It is recognized in Article 13 that facilitated access
is itself a benefit.71 The Article’s provisions on transfer
of technology indicate that such facilitated access
extends to improved varieties and to other genetic
materials that embody technologies that are developed
through the use of PGRFA in the multilateral system.72
Criteria for whether or not ‘a product is available
without restriction to others for further research and
breeding’78 are not given in the text. However, on the
basis of the negotiating history of this provision (see
discussion below) it is understood that such mandatory monetary benefit sharing would be invoked
when commercialized products are protected by patents,79 or other intellectual property rights that limit
the availability of the product, or any constituent
PGRFA accessed through the multilateral system, or
69
73
See FAO, n. 64 above.
In this context it is relevant to note that the Conference of the
Parties to the CBD has recognized ‘that intellectual property rights
might, under certain circumstances, constrain access to and use
of genetic resources and scientific research’ (CBD, Report of the
Open-Ended Ad Hoc Working Group on Access and Benefit Sharing
(UNEP/CBD/COP/6/6, 2001), Recommendation 3, at 35).
71
Treaty, Article 13(1).
72
Ibid., Article 13(2)(b)(i).
70
CBD, Articles 16 and 19.
Treaty, Article 13(2)(b)(iii); CBD, Article 16.
75
Treaty, Article 13(2)(b)(ii).
76
Ibid., Article 13(2)(c).
77
Ibid., Article 13(2)(a). This is similar to the provisions in Article 17
of the CBD.
78
Treaty, Article 13(2)(d)(ii).
79
Unless there are exemptions for research and breeding (see
ibid.).
74
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9
H. DAVID COOPER
conceivably by contractual or technological means
that have the same effect.80
The level, form and manner of benefit-sharing payments are to be determined by the governing body, at
its first meeting.81 The Treaty specifies that the level,
form and manner of the payment shall be in line with
commercial practice. The governing body may decide
to establish different levels of payment for various
categories of recipients who commercialize such
products, and to exempt small farmers from such payments in developing countries and in countries with
economies in transition. It may review the levels of
payment from time to time.82
The negotiating history of Article 13(2)(d)(ii) of the
Treaty is an interesting one. At the Fifth Extraordinary
Session of the CGRFA in June 1998, ASSINSEL – an
association of private-sector companies – suggested a
system in which patent holders, in the event of protection by patents limiting free access to the new genetic
resources, would contribute to a fund for collecting,
maintaining, evaluating and enhancing genetic resources. The Commission viewed this idea favourably
and, subsequently, the spirit of the approach was
reflected in text agreed ad referendum at the Third
Session of the Chair’s Contact Group at Tehran in
August 1999. Like the ASSINSEL proposal, the Tehran
text distinguished between patents (as limiting free
access) and plant breeders’ rights (which allow unrestricted use of germplasm contained in a protected
variety). This reflected the interests of the majority of
the ASSINSEL membership, which – composed primarily of small- and medium-sized companies – tends
to use plant breeders’ rights more often than they use
patents. However, unlike the ASSINSEL proposal, no
provision was made in the Tehran text for a material
transfer agreement, reflecting the agreement in Montreux to eliminate the need for tracking individual
accessions. At a later meeting of the Chair’s Contact
Group in Neuchatel, four countries indicated that they
did not support the Tehran text after all. Some
claimed that the use of patents to trigger benefit
sharing might be incompatible with Articles 27(1) and
29 of the World Trade Organization Agreement on
80
Examples of contractual means that limit the availability of the product or any constituent PGRFA are contracts commonly employed
for the protection of genetically modified crops. Examples of technological means are variety-level genetic use restriction technologies
or ‘Terminator Technologies’, if they are commercialized. On the other
hand, note that F1 hybrids and the PGRFA they contain, such as
most commercial maize varieties, are available for further research
and breeding, unless otherwise protected by patents. Thus, even
though the constituent lines are usually protected by trade secrets
and thus themselves unavailable, the genetic material that they contain is available.
81
This will be done on the basis of a recommendation of the Interim
Committee.
82
Treaty, Article 13(2)(d)(ii).
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10
RECIEL 11 (1) 2002
Trade Related Intellectual Property Rights (TRIPs)83
by imposing additional conditions for intellectual
property protection. These countries wished to avoid
any implication that patents had negative effects and
to support what they considered was a ‘tax on innovation’. At the same time, some non-government organizations had qualms for the opposite reasons, believing
that any link between patents and benefit sharing
might legitimize patents. Later still, following pressure
from the larger companies within its membership,
ASSINSEL also indicated that it did not support the
text because of the absence of MTAs. Provision for an
MTA was introduced into Article 12 of the Treaty during the penultimate negotiating session in June 2001.
Article 12(5) states that ‘obligations arising under such
MTAs rest exclusively with the parties to those MTAs’.
At the same time, explicit reference to intellectual
property rights was removed.
Monetary benefit sharing is triggered by any commercialization, but this is only mandatory when the product is covered by patents or other intellectual property
rights that restrict access. Patent offices could thus
assist with the implementation of these provisions in
Article 13.84 The Conference of the Parties to the CBD
has been recommended by its Working Group on
Access and Benefit Sharing to invite parties and governments to encourage the disclosure in applications
for intellectual property rights of the country of origin
of genetic resources. This would be done where an
invention concerns or makes use of genetic resources
in its development and would act as a possible contribution to tracking compliance with prior informed
consent and the mutually agreed terms on which
access to those resources was granted.85 As applied to
facilitated access under the Treaty, such procedures
could facilitate the identification of inventions that
make use of material obtained from the multilateral
system86 and/or material included in the list of crops
and forages in Annex 1.
As noted above, while payments are mandatory in certain cases, voluntary payments are encouraged in all
83
Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPs), General Agreement on Tariffs and Trade: Multilateral Trade
Negotiations Final Act Embodying the Results of the Uruguay
Round of Trade Negotiations (Marrakech, 15 April 1994), Annex 1C.
84
The Secretariat of the World Intellectual Property Organization has
suggested to the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore that
it might wish to consider the desirability and feasibility of practical
and low cost mechanisms to implement intellectual property based
benefit-sharing arrangements (see World Intellectual Property
Organization, Intergovernmental Committee on Intellectual Property
and Genetic Resources, Traditional Knowledge and Folklore, First
Session (30 April 2001–3 May 2001, WIPO/GRTK/IC/1/3), at 18).
85
See CBD, n. 70 above, at 35.
86
Such procedures may also facilitate the identification of inventions
that make use of material obtained from an international centre in
conformity with the provisions of Article 15.
RECIEL 11 (1) 2002
cases of commercialization. Article 13(2) of the Treaty
contains a provision for the governing body to review
this within a period of 5 years from the entry into force
of the Treaty and to assess whether the mandatory
payment requirement shall apply also in cases where
commercialized products that use PGRFA from the
multilateral system are available without restriction to
others for further research and breeding.
The setting of the level of payments is likely to be
a difficult and controversial process. The Treaty
specifies that they should be in line with commercial practice,87 but such practice is limited, at least in
the field of food and agriculture. There may also well
be different views as to what constitutes relevant
commercial practice. The relative low profitablity of
the seed sector (as compared to the pharmaceutical
sector) would suggest an upper limit on the level.
However, if the level is set too low, the resulting
disillusionment could undermine implementation of
the Treaty.
Monetary benefit sharing is only triggered on commercialization of products that use PGRFA transferred
under the terms of facilitated access with an accompanying MTA.88 Initially, the number of such instances
may be limited, since many potential users have their
own PGRFA collections, which may suffice for some
time. There will clearly be a lag between transfer of
PGRFA and the realization of benefit sharing due to
the time needed for research, development and commercialization. For these reasons, during a considerable period of time following the entry into force of the
Treaty, mandatory payments triggered by commercial
use may turn out to be a small part of the total benefitsharing package. In fact, the benefit-sharing provisions of information exchange, technology transfer
and capacity building, together with voluntary benefit
sharing and use of the financial strategy, may be more
significant in financial terms.
Article 13 of the Treaty also explicitly links benefit
sharing and the funding strategy. It is recognized that
the ability to fully implement the Global Plan of Action
will depend largely upon the effective implementation
of benefit sharing and of the funding strategy. At its
first meeting, the governing body will consider:
relevant policy and criteria for specific assistance under the
agreed funding strategy established under Article 18 for the
conservation of PGRFA in developing countries, and countries with economies in transition whose contribution to
the diversity of plant genetic resources for food and agriculture in the multilateral system is significant and/or which
have special needs.89
87
Treaty, Article 13(2)(d)(ii).
See discussion under Terms of Access for the Multilateral
System.
89
Treaty, Article 13(4).
INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES
The Treaty states that benefits shared under the multilateral system should flow primarily to farmers who
conserve and sustainably utilize PGRFA.90
INTERNATIONAL
COOPERATION AND THE
SUPPORTING COMPONENTS
OF THE TREATY
Article 7(2) of the Treaty sets out the main areas of
international collaboration, including capacity building
in developing countries and countries with economies in transition, enhancing international activities,
supporting international institutional arrangements
provided in Part V of the Treaty and implementation
of the funding strategy. This is supplemented by
Article 8 of the Treaty which calls for technical assistance between parties to facilitate implementation of
the Treaty, especially for parties that are developing
countries or countries with economies in transition.
The supporting components of the Treaty set out in
Part V (Articles 14–17) include the Global Plan of Action,
the ex-situ collections held by the International
Agricultural Research Institutes of the Consultative
Group on International Agricultural Research (CGIAR),
networks for collaboration and a global information
system.
THE GLOBAL PLAN OF ACTION
According to Article 14 of the Treaty, parties should
promote implementation of the Global Plan of Action.
The Global Plan of Action is also referred to in the
Preamble and in Articles 13(2), 13(4) and 18(3) on
benefit sharing and financial resources.
The Global Plan of Action was adopted by 150 countries at the Leipzig International Technical Conference
in 1996 and subsequently endorsed by the FAO Conference and the Conference of the Parties to the CBD.
It provides an agreed framework for the conservation
and sustainable use of PGRFA, comprising 20 priority
activities in the fields of in-situ conservation and
development, ex-situ conservation, use of PGRFA, and
institutions and capacity building.
Many organizations have adopted the Global Plan of
Action as a basis for their planning and priority setting, but implementation, as reported to the CGRFA
and its Intergovernmental Working Group on Plant
Genetic Resources, has so far been limited. The FAO
88
90
Ibid., Article 13(3).
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11
H. DAVID COOPER
Conference Resolution adopting the Treaty notes that
the Treaty is to facilitate implementation of the Global
Plan of Action.91 Likewise, full implementation of the
Global Plan of Action will contribute to the success of
the Treaty.
INTERNATIONAL EX-SITU
COLLECTIONS
The International Agricultural Research Centres
(IARCs) of the CGIAR hold perhaps the most important ex-situ collections of PGRFA 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
the FAO. The Centres recognize the authority of the
CGFRA. MTAs have been developed within this trust
framework. Many of the collections were collected
prior to the entry into force of the CBD and fall outside the scope of its Article 15 and related provisions.
The importance of these collections is recognized in
the Treaty and the Centres will be called upon to
sign agreements with the governing body, which will
supersede the existing agreements with the FAO.92
As with the present agreement, the IARCs recognize
the authority of the governing body to provide policy
guidance relating to ex-situ collections held by them.
There also are provisions for cooperation with the
Treaty Secretariat.93 In order to smooth the transition
to these new arrangements, the CGFRA has requested
the IARCs and the FAO to update the MTAs, reflecting
as far as possible the conditions envisaged in the
Treaty.94 Following the entry into force of the Treaty,
two new MTAs will be developed to cover material
held by the Centres. One MTA will be for material held
by the IARCs and listed in Annex 1 to the Treaty (for
which the provisions of the multilateral system would
apply)95 and a second MTA will be for all other material collected prior to the entry into force of the
Treaty.96 The relevant provisions of the Treaty, especially Articles 12 and 13, will apply and there will be
obligations on the IARCs to inform the governing body
of the MTAs into which they have entered. Source
countries would be entitled to receive material without
91
See FAO Resolution, n. 57 above, at Article A(5).
Treaty, Article 15(1).
93
Ibid., Article 15(1)(c)–(g).
94
CGRFA, Resolution of the Sixth Extraordinary Session of the
Commission on Genetic Resources for Food and Agriculture
(CGRFA-Ex6/01/REP, 2001), at Appendix G.
95
Treaty, Article 15(1)(a).
96
Ibid., Article 15(1)(b). Until the governing body (in consultation
with the IARCs) amends the MTA, this material will be made available under the provisions of the MTA pursuant to the existing agreements between the IARCs and the FAO. The amendments must be
made no later than by the second regular session of the governing
body.
92
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RECIEL 11 (1) 2002
an MTA and benefits will be applied particularly to
centres of diversity.
Non-Annex 1 material collected after the entry into
force of the Treaty will be provided on mutually
agreed terms, in accordance with the provisions of the
CBD, as applicable.97 However, parties are encouraged
to provide facilitated access to non-Annex 1 material
that is important to the programmes and activities
of the IARCs.98 In practice, therefore, there may be
convergence between the conditions of access for the
crops listed in Annex 1 and other material held in
international collections. The provision for similar
agreements to be established with other international
institutions99 provides an opportunity for further
expansion of facilitated access and benefit sharing to
ex-situ collections.
NETWORKS AND INFORMATION
SYSTEMS
Cooperation through networks and the involvement of
all relevant institutions in such networks is encouraged (Article 16 of the Treaty). Consistent with the
Global Plan of Action,100 this might include, inter alia,
regional plant genetic resources networks and cropspecific networks, as well as networks for seed security. There is indeed ample opportunity for improved
synergy between different networks. Some regional
and crop-specific PGRFA networks already facilitate
the exchange of PGRFA, as well as related information and technologies, sometimes also using MTAs.
The European Cooperative Programme on Genetic
Resources, for example, includes several such crop
networks.
Article 17 of the Treaty provides for the development
and strengthening of a global information system to
facilitate the exchange of information, on scientific,
technical and environmental matters related to PGRFA,
with the expectation that such exchange of information will contribute to the sharing of benefits. The
information system is to be based on existing information systems and developed in cooperation with the
clearing house mechanism of the CBD.101 An element
for early warning on hazards that threaten the efficient
maintenance PGRFA is also included ‘based on
notification by the Contracting Parties’.102 Thus, a
large centralized information system is not envisaged
and cooperation with a range of relevant information
97
Ibid., Article 15(3).
Ibid., Article 15(4).
99
Ibid., Article 15(5).
100
See n. 13 above, Activity 16.
101
Treaty, Article 17(1).
102
Ibid., Article 17(2).
98
RECIEL 11 (1) 2002
INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES
networks and databases will be needed. The existing
FAO World Information and Early Warning System,
which is not mentioned in the Treaty, will need to be
adapted if it is to play its full potential role. Additionally, if all countries are to benefit from the global
information system, major efforts will be needed to
strengthen national capacities, as provided for in the
Global Plan of Action.103 Provision is also made for
the periodic reassessment of the state of the world’s
PGRFA in order to facilitate the updating of the Global
Plan of Action.104
• relevant international financial mechanisms, funds
and bodies – in this respect parties are committed
to take measures within the respective governing
bodies to ensure due priority and attention to the
effective allocation of predictable and agreed
resources for the implementation of plans and
programmes under the Treaty;109
• domestic resources for national actions in accordance with needs and capabilities;110
• funds arising from the provisions on commercial benefit sharing in Article 13(2)(d) of the
Treaty;111
• voluntary contributions from the private sector,
non-government organizations and other sources,
including: (i) those in respect of commercial benefit
sharing from material not protected by patents as
provided for in Article 13(2)(d) of the Treaty
(including those in respect of commercialized
products protected by plant breeders’ rights); (ii)
voluntary contributions from the food industry
pursuant to Article 13(6) of the Treaty; and (iii)
any other voluntary contributions. The governing
body shall consider modalities of a strategy to promote such contributions.112
FINANCIAL PROVISIONS
Article 18 of the Treaty provides a funding strategy,
the objectives of which are ‘to enhance the availability,
transparency, efficiency and effectiveness of the provision of financial resources to implement activities
under the Treaty’.105 Further, the governing body shall
periodically establish a target to mobilize funding
for priority activities, plans and programmes, taking
the Global Plan of Action into account.106 As with
other agreements of this type, it is recognized in the
text of the Treaty that the extent to which developing
countries and countries with economies in transition
will effectively implement their commitments will
depend on the effective allocation of the resources
by the developed countries. However, developing
countries and countries with economies in transition
are committed to accord due priority in their own
plans and programmes to building capacity in
PGRFA.107
Multiple sources for funding are recognized in the text
of the Treaty as follows:
• bilateral, regional and multilateral channels
(including a trust account to be established by the
governing body);108
103
See n. 13 above, Activities 17 and 18.
Treaty, Article 17(3).
105
Ibid., Article 18(1) and (2).
106
Ibid., Article 18(3). Cost estimates for the implementation of the
Global Plan of Action were developed for the International Technical
Conference (Leipzig, 1996). At the request of the Leipzig Conference, the cost estimates were revised with three options of per
annum figures based on an assumed 10-year period of implementation (1996 figures): US$150 million (basic approach); US$248
million (moderate approach) and US$455 million (comprehensive
approach). These estimates include a significant share of the costs
of implementing activities in developing countries, which include, for
example, the costs related to the general running of national
PGRFA programmes. Also included are activities undertaken largely
for global benefit, regardless of their location, such as long-term
conservation and genetic enhancement (see CGRFA-Ex3/96/Inf.1
(FAO, 1996), Annex).
107
Treaty, Article 18(4)(b).
108
Ibid., Article 18(4)(c).
104
In the use of financial resources, priority will be given
to the implementation of agreed plans and programmes for farmers in developing countries, especially in least developed countries and in countries with
economies in transition, who conserve and sustainably utilize PGRFA. Use of such financial resources
is not restricted by the Treaty to the crops listed in
Annex 1, although the governing body in setting the
policy and criteria for assistance under the funding
strategy is to take into account the contribution of
countries to the diversity of PGRFA in the multilateral
system.113
The Treaty does not provide for mandatory payments
from parties (except for a subset of commercial benefit
sharing, as described earlier, and, in these cases, payments are mandatory not from parties per se, but
from recipients of material from the multilateral system). Nevertheless, the establishment of a financial
strategy and a target for the strategy are significant
steps forward, which should improve transparency
in funding. It remains to be seen whether the Treaty
will also improve funding availability, efficiency and
effectiveness.
109
Ibid., Article 18(4)(a).
Ibid., Article 18(4)(d).
111
Ibid., Article 18(4)(e). Together with those arising from Article
15(1)(b)(iii), these funds will accrue in the trust account established
by the governing body referred to in Article 18(4)(c) of the Treaty.
112
Ibid., Article 18(4)(f ).
113
Ibid., Article 13(4).
110
© Blackwell Publishers Ltd. 2002.
13
H. DAVID COOPER
INSTITUTIONAL PROVISIONS:
A TREATY AT THE INTERFACE
OF AGRICULTURE, TRADE
AND THE ENVIRONMENT
Article 19 of the Treaty establishes a governing body
to provide policy direction and guide implementation
of the Treaty.114 Many tasks are specified,115 reflecting
tasks already noted in this article. Significantly, some
tasks, such as the adoption of a funding strategy, are
to be addressed at the first session of the governing
body. Where possible, sessions of the governing body
are to be held back to back with meetings of the
CGRFA.116 (The CGFRA will retain some functions of
relevance to the Treaty such as the preparation of
periodic reports on the state of the world’s PGRFA
and, possibly, the updating of the Global Plan of
Action.) In practice, the relationship and division of
labour between the two bodies is likely to evolve with
time. As decided in the FAO Resolution adopting the
Treaty, the CGFRA shall act as the Interim Committee
for the Treaty pending the Treaty’s entry into force.117
The Director-General of FAO, with the approval of the
governing body, will appoint the secretary of the governing body.118
While the Treaty was adopted under Article XIV of the
FAO Constitution,119 it has a high degree of autonomy
within the framework of the organization. The governing body can adopt the budget and may establish subsidiary bodies. All States recognized by the United
Nations, and not just FAO members, have equal rights
to become parties.120 All decisions of the governing
body shall be taken by consensus, unless, by consensus, another method of arriving at a decision is
reached.121 This requirement – seen by many as a
major potential impediment to efficient decision making – arose during the negotiations as a result of exasperation with a few countries that were insisting on
consensus for long lists of particular issues of importance to them, without regard to the cumulative consequences of such actions. The first meeting of the
governing body will have an opportunity to rectify this
situation, but, even then, consensus will be required
for amendments to the Treaty or its Annexes (Articles
23 and 24), including amendments to the list of crops
and forages covered by the multilateral system.122
114
115
116
117
118
119
120
121
122
Ibid., Article 19(1) and (3)(a).
Ibid., Article 19(3)(a)–(n).
Ibid., Article 19(9).
See FAO, n. 57 above, at Article B(1).
Treaty, Article 20.
Ibid., Preamble.
Ibid., Articles 25 and 26.
Ibid., Article 19(2).
Ibid., Article 19(2).
© Blackwell Publishers Ltd. 2002.
14
RECIEL 11 (1) 2002
One of the functions of the governing body specified in
the Treaty is to establish and maintain cooperation
with other relevant international organizations and
treaty bodies, including the Conference of the Parties
to the CBD. The governing body is to take note of relevant decisions of the Conference of the Parties to the
CBD and other relevant international organizations
and treaty bodies, and to keep these bodies informed
of matters regarding the implementation of the
Treaty.123 Following recommendations prepared by the
CBD’s Subsidiary Body for Scientific, Technical and
Technological Advice, the Conference of the Parties to
the CBD is expected to agree, at its Sixth Meeting in
2002, to establish and maintain cooperation with the
governing body and Secretariat of the Treaty.
Given the overlapping mandates of the Treaty and
the CBD, the built-in requirements for exchange of
information and review of decisions are important to
ensure that the two agreements remain in harmony as
they each develop in the light of decisions of their
respective governing bodies. This will be particularly
important in the area of access and benefit sharing to
PGRFA for which the specific provisions of Articles 11,
12, 13 and 15 do not apply.124
The relationship between the Treaty and other international agreements in general is dealt with in the
Preamble, which is similar in form to the Preamble of
the CBD’s Cartagena Protocol on Biosafety. These provisions in the Treaty state that it and other relevant
international agreements should be mutually supportive, that nothing in the Treaty is to be interpreted to
imply a change in the rights and obligations of the
parties under other international agreements, and that
these provisions are not intended to create a hierarchy
between the Treaty and other international agreements.
A concern is the relationship between the Treaty and
the World Trade Organization agreements, in particular, the TRIPS Agreement and the Agreement on Agriculture. In respect of the Agreement on Agriculture,
many countries were concerned that ‘support’ for
farmers (Articles 5 and 6 of the Treaty) and national
financial support (Article 14(4)(d) of the Treaty)
should not be construed to legitimize the use of tradedistorting subsidies in agriculture.125 The Treaty’s final
agreed text leaves the relationship between these
agreements unclear. In fact, during the adoption of the
text, while many countries (including some developing
countries and European countries) emphasized that
123
Ibid., Article 19(3)(g), (l) and (m).
Such PGRFA are nevertheless covered by the general provisions
of the Treaty.
125
The provisions in Article 18(4)(d) of the Treaty state that ‘[t]he
financial resources provided shall not be used to ends inconsistent
with this Treaty, in particular in areas related to international trade in
commodities’.
124
RECIEL 11 (1) 2002
INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES
the Treaty was ‘not subordinate’ to other agreements,
others (from the ‘Cairns Group’ and the ‘Miami
Group’) insisted that it did not change in any way the
rights and obligations of the parties under other international agreements. It will be up to countries implementing the various agreements to ensure that they
are really mutually supportive.
• farmers everywhere (but particularly those working under difficult conditions in the poorest countries) to have access to the resources they need to
guarantee their food security; and
• small breeding companies and entrepreneur
farmers to contribute to economic development
and to compete with larger companies.
Article 21 of the Treaty provides that the governing
body, at its first meeting, is to consider and approve
procedures and operational mechanisms to promote
compliance and to address issues of non-compliance.
Two types of procedures and mechanisms are set out
in Article 21. These consist of monitoring and advice,
including legal advice and assistance. The governing
body could decide to invite parties to report on their
implementation of the Treaty and compliance with
it.126 This would fill what would otherwise be an
important gap in the Treaty, since a reporting mechanism is not provided for explicitly.
The perceived advantages and disadvantages of intellectual property rights are reflected in the text of the
Treaty in a balanced manner. Commercialization of
products protected by certain forms of intellectual
property rights will trigger mandatory monetary
benefit sharing. At the same time the application of
intellectual property rights on material from the
multilateral system is limited, even if the extent of this
limitation is ambiguous. Together with the bias in
favour of plant breeders’ rights over patents in the
provisions on commercial benefit sharing, the Treaty
may benefit small seed and breeding companies in
relation to larger ones.
CONCLUSIONS
For the first time, access to genetic resources is
matched on a multilateral basis with guaranteed
benefit sharing. In cases of commercial benefit sharing
this will be monetary in nature. Where triggered by
commercialization of patented products, benefit sharing will be mandatory. The mandatory benefit-sharing
mechanism is of major symbolic importance. Politically, there had to be a mandatory element in the
agreement to balance the guarantee of facilitated
access. However, other elements of the benefit-sharing
package, including voluntary measures and the use
of the financial strategy, may be more significant in
magnitude of total transfers. Implementation of the
multi-faceted funding strategy will require continued
cooperation and goodwill, not only of traditional
donors, but also of private industry and all aspects of
civil society.
The Treaty brings together the CBD and the agricultural sector. Less comfortably, perhaps, it interfaces
with issues of international trade. As expressed by
Malaysia at the time of the adoption of the Treaty,
the Treaty has the potential to contribute to an enlightened form of globalization.127 It is the first major
binding international instrument specifically oriented
towards sustainable agriculture. While in harmony
with the CBD, the Treaty provides for special
approaches to the conservation, sustainable use, and
access and benefit sharing needed for PGRFA.
The creation of a multilateral system is a major
achievement, notwithstanding its limitations in terms
of crops and types of collection covered. Facilitated
access reflects both the reality of the status quo
(PGRFA are already widely distributed so that it is
too late to bolt the stable door now that the horse
has already fled), and the desirability of maintaining
it (everyone needs unfettered access to the genetic
resources of the major food crops). Facilitated access
is important because it allows:
• plant breeders, including those in the International
Agricultural Research Centres, to continue to
develop improved crop varieties, drawing upon the
widest genetic bases, to meet the demand for more
food, produced more sustainably, and in the face of
new challenges such as climate change;
126
Compliance with the terms of the MTAs is dealt with in Article
12(5) of the Treaty and is treated as a contractual issue between
parties to the MTA.
127
See FAO, n. 64 above.
The benefit-sharing mechanisms and the financial
strategy will allow all stakeholders to benefit from the
use and improvement of PGRFA, especially smallscale farmers in developing countries who have contributed to the conservation and availability of these
resources. The adoption of the Treaty will facilitate the
full implementation of the Global Plan of Action for
the conservation and sustainable use of PGRFA, as
agreed in Leipzig in 1996.
Implementation of the Global Plan of Action in a
manner that benefits farmers may in practice be
the main manifestation of farmers’ rights. However,
the Treaty also provides for the right of farmers to
participate equitably in sharing benefits and to participate in making decisions at national levels on matters related to the conservation and sustainable use of
PGRFA.
© Blackwell Publishers Ltd. 2002.
15
H. DAVID COOPER
In all of these aspects, implementation of the Treaty
will go beyond the list of crops and forages in Annex 1.
Indeed, a broad scheme is essential to protecting the
diversity of plant genetic resources. The Treaty provides a modern approach to conservation and sustainable use and provides an overarching framework for
PGRFA networks and information systems, and allows
continued operation of the IARCs in germplasm conservation and improvement.
The Treaty will enter into force after it has been
ratified by 40 countries. Before that, the CGRFA, acting as the Interim Committee of the Treaty, must prepare for the first meeting of the governing body.
Among other tasks, it must develop proposals for a
standard MTA, a funding strategy with targets and for
mechanisms for compliance. These will be tough
tasks, but with commitment and cooperation of all
stakeholders, they can be accomplished.
© Blackwell Publishers Ltd. 2002.
16
RECIEL 11 (1) 2002
H. David Cooper works on policy and technical issues
related to plant genetic resources at the Food and
Agriculture Organization of the United Nations, Rome.
Recently he was the programme officer for agricultural
biodiversity in the Secretariat of the Convention on
Biological Diversity, Montreal. He was the coordinator
and principal author of FAO’s ‘State of the World’s Plant
Genetic Resources’ prepared for the 1996 Leipzig
International Technical Conference on Plant Genetic
Resources. He has followed the negotiations for the
revision of the International Undertaking since their inception. The author is grateful to Murthi Anishetty, Carlos
Correa, Kakoli Ghosh, Tony Gross, Arturo Martinez, Leslie
Lipper, Gerald Moore and Clive Stannard, as well as the
editorial staff of RECIEL, for their useful comments on
earlier drafts of this article. The views expressed in this
article are personal and they do not necessarily reflect,
in any way, the views of the FAO or its Member Nations,
or the views of the Secretariat or the parties of the CBD.