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Table of Contents and Authorship:
~ History: Development, Negotiation, Adoption, and Implementation of the Treaty (Dorothy Johnson)
~ Detailed Analysis of Treaty Text (Dorothy Johnson & Megan McDonell)
~ The Operative Theory of the Treaty (Megan McDonell)
History: Development, Negotiation, Adoption, and Implementation of the Treaty
The
International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)
roots began sprouting in the early
1980's.1 and resulted in the first international agreement dealing with protection and disruption of plant genetic resources.2 This was after nearly three decades of planning and development to
avoid
wide-spread famine in developing nations, a fear that had been was
spreading to the international arena since the late 1950's.3
In the mid-1970's, domestic policies around the globe to promote national
scientific organizations devoted to creating sustainable plant resources,
in concert with farmers and international agricultural
research
organizations.
4
The benefit of creating a treaty to deal with these matters is the treaty's formal nature. It establishes rules of the treaty as international law, and particularly in dealing with plant genetic resources, the creation of national accountability.5 Also, a good idea cannot grow without financial mechanisms for support. The ITPGFRA is a legally binding contract, formalizing the cooperative efforts of nations, intergovernmental organizations, and non-governmental agencies.
The initial treaty was named the International Undertaking, which sought to ensure access to plant genetic resources on an international scale. It was drafted by the Food and Agriculture Organization (FAO) of the United Nations when they created the Commission on Plant Genetic Resources during their 1981 conference.6 Guidelines for the treaty were previously established by the Commission on Biological Diversity.7
The International Undertaking had several resolutions added to it over the
next fifteen years. The first was in September of 1983. From this
resolution the commission established an intergovernmental body to monitor
parties and to recommend measures ensuring the undertaking's success. The
resolution relied on the Commission of Forestry and the Commission on
Agriculture to review actions by th
e FAO and advise
future decisions in the field of plant genetic resources.
8
This draft still left many issues, such as farmer's rights, member responsibility, and resource access, up to interpretation. The next two resolutions made in the spring of 1989 recognized both the rights of farmers (informal innovators) and breeders (formal innovators) in their claims of plant genetic resources.9 Resource access was addressed in 1992 with "Agenda 21," creating the FAO Global System on Plant Genetic Resources.10 The Nairobi Final Act went further in protecting farmers' rights and access to "ex-situ" sites, or areas in which plants are grown outside of their native habitats.11 This was again reiterated by the 1993 resolution.
The next draft was written during the 1995 United Nations Conference on Environmental Development. Its purpose was to increase general awareness the need for plant genetic resources.12 A commission was established to work with the FAO and guide their policies, in cooperation with the Commission on Biological Diversity. Seeking to take an integrated approach to problem solving, the FAO involved both non-government organizations and other intergovernmental organizations, such as the World Trade Organization and the Consultive Group on International Agricultural Research.13 Finally, this resolution increased national sovereignty and rights to access.
The last additions to the treaty were made in 1996, at the Leipzig International Technical Convention where the Leipzig declaration was signed.14
One hundred and fifty nations signed the declaration finalizing the scope of access to the resources and establishing rules of equal benefits-sharing that result from the plant genetic resources.15
The treaty was
adopted on November 3, 200116
during the 31st FAO session, but has yet to be ratified. The
Director-General of the FAO has given to deadline of November 4, 2002 for
ratification.17
List of Signatories:
http://www.fao.org/ag/cgrfa/memC.htm
Detailed Analysis of Treaty Text
(i) Conference of the Parties
Because this treaty was adopted on November 3, 2001, the governing body established a temporary schedule of meetings and outline of what they will accomplish in each session. The first meeting will be held one year after the ratifying date, after which meetings will be held every two years. These regular sessions will be held as close to the Commission on Genetic Resources for Food and Agriculture's regularly scheduled sessions as possible. A special session may be called by the governing body, or by any participating member, so long as there is at least one-third approval and the request in made in writing.
(ii) Secretariat
The secretariat,
located in Rome, Italy, provides general support services in negotiations
and advising. As outlined in the ITPGRFA, the secretariat is appointed by
the Director-General of the FAO and must meet the approval of the
Governing Body, or ratifying nations. The main duties of the secretariat
consist of eight detailed tasks in the realm of organization and
communication. First, the secretariat provides administrative support to
the Governing Body during and outside of meetings, as well as for any
subsidiary bodies that may be established. Next, the secretariat may be
assigned any tasks by the Governing Body to help the governing body
function more smoothly. The secretariat must also report any of its
actions to the Governing Body. Acting as a liaison for and between all
member nations and the Director-General of the FAO, the secretariat
communicates all decisions of the Governing Body and information received
from either subsidiary bodies or member nations. Additionally, the
secretariat must provide this documentation in the six languages of the
United Nations. These languages are Arabic, Chinese, French, English,
Russian, and Spanish. Finally, the secretariat must coordinate their
actions with the secretariats of other organizations, specifically, the
secretariat on the Convention of Biological Diversity.
(iii) Subsidiary Bodies
The subsidiary bodies, or those who can be called upon for technical assistance or information, consists of one main group, the International Agricultural Research Centres (IARC) of the Consultive Group on International Agricultural Research (CGIAR). The IARC must make available the various plants, which are being maintained outside their natural habitat, as listed in Annex I of the treaty. 18 The IARC will be required to periodically inform the governing body of any crop or material transportation agreements between nations.
The IARC
will also act a police force to report any cases of non-compliance. A case
of non-compliance would deal with a party who did not share or distribute
either the genetic plant material or the benefits resulting from the
knowledge or use of the genetic material.
The IARC will also maintain facilities housing plant materials, manage the
products, and distribute them accordingly. Finally, the IARC will
recognize the authority of the governing body in terms of policies
regarding the IARC's collections of out of habitat grown plants.
The treaty also establishes a broad network for an information web, to
encourage communication and exchange between the parties in the governing
body.
(iv) Provisions for Amending the Treaty
An
amendment to the treaty may be made by any contracting party. The
amendment must be adopted at a session of the Governing Body. The text
must be communicated to the contracting parties by the secretariat and
must be done at least 6 months before the session takes place. At the
session, the amendment is accepted by a consensus. It wi
ll come into force
if the contracting parties ratify, accept and approve of the amendment. On
the 90th day after the two thirds of the contracting parties deposit their
instruments of ratification, the amendment will go into effect. For any
other contracting party, the amendment will go into effect 90 days after
it deposits its instrument of ratification.
(v) Financial Mechanisms
The objectives of the funding strategy are to enhance the
availability, transparency, efficiency and effectiveness of the provision of financial resources to implement activities. For plan and programs, especially dealing with economies in transition, the Governing Body will establish a target for funding. The financial
mechanisms and funds must work to allocate agreed resources for the implementation of plans and programs. For the economies in transition and developing countries, priority will go to building capacity in plant genetic resources for food and agriculture. Developed
countries, depending on their capabilities, will help provide financial resources for economies in transition and developing countries. The financial resources will not be used inconsistently with the treaty and any financial benefits resulting from commercialization are part of the funding strategy. Contracting parties, non-governmental organizations and other sources may give voluntary contributions and the Governing Body will work on a strategy to promote these contributions. Priority for the implementation of plans and programs will be given to developing countries who conserve and utilize plant and genetic resources. A budget will also be adopted and a Trust Account set up for
receiving and utilizing financial resources.
(vi) Provisions on Entry into Force
The treaty will enter into force on the 90th day after 40
contracting parties deposit their instruments of ratification, acceptance
approval or accession. 20 of the instruments must have been deposited by
members of FAO. For any member of the FAO or any state that is a member of
the United Nations, any of its specialized agencies or part of the Atomic
Energy Agency that
ratifies the treaty after this, it will enter force on the 90th day following the deposit of its instrument of ratification, acceptance, approval or accession.
The
Operative Theory of the Treaty Text
The purpose of the treaty is to ensure biological diversity and eventually reduce world hunger. Diverse plants are needed for food, clothing and
medicine.19 This treaty aims to protect the plant species used for these purposes. With more biological diversity, there is less chance for devastation by disease and pests. We do not make use of the many species we have available and the treaty aims to explore different species as well as protect widely-used species. The treaty is a mixture of agricultural, environmental and trade issues.
20
Traditional methods of cultivation are giving way to new techniques and
technologies. Because of this, we are losing access to remedies and
species we need.21 The
traditional methods must be preserved to complement the new methods; they
should not be replaced. Many of the communities in which these methods are
still practiced are in developing countries and need the help of developed
countries to protect them. A major part of the treaty also deals with
Farmers' Rights. It is agreed that farmers should share in the benefits of
the utilization of plant genetic resources and farmers should participate
in the decision-making regarding conservation and sustainable use of these
resources. Another major aspect of the treaty is in the multilateral
system it creates. This system is made up of the contracting parties to
facilitate access to plant genetic resources and to share the benefits of
this utilization. The treaty stresses benefit-sharing, which means that
all parties will have access to the same information regarding genetic
resources, access to technology, will work on capacity-building, meaning
programs and facilities for conservation, and all parties will share in
the benefits of commercialization arising from the use of these resources.
The person or company that commercializes a product that is a genetic
resource will pay a share of the benefits to the parties.
22
Plant resources are to be explored, collected,
conserved, characterized, evaluated and documented, to see what species
exist and how they can be used and saved.
Diversity means maintaining diverse farming
systems, promoting plant breeding to adapt to different areas, broadening
the genetic base of crops, promoting local crops and using a wider range
of varieties. The main idea is to explore existing and possible species
and to protect them to use today and in the future.
The treaty was only recently adopted in November
of 2001. It is now facing ratification by 40 parties, of which it has
received 9 signatures. The next meeting is planned for 2003, when it is
hoped that the treaty will have been ratified.23 For
now, the Commission on Genetic Resources for Food and Agriculture is
acting as the Interim Committee. The first meeting of the Committee is
projected to be sometime in 2002. Until the treaty has been ratified, the
Interim Committee will prepare drafts for rules of procedure, financial
rules and will write a proposal for the budget. Another major goal for the
Commission is to draft the Material Transfer Agreement which is to be
established by the Governing Body at the first meeting.
24 The MTA concerns the
conditions for access and benefit-sharing under the treaty. At the time of
adoption, the parties were not all in agreement over this issue because it
concerns intellectual property rights. The intellectual property rights
are a controversial issue because they do not allow farmers to freely use,
exchange and develop the species they manage.
25 The treaty explains that
corporations wanting to patent varieties should pay the parties a share of
these commercial benefits. Upon adoption, the parties were not in complete
agreement over this issue, and further discussion will take place at the
first meeting.
26 The Interim committee is also
consulting the International Agriculture Research Centres, establishing an
expert group for technical and legal expenses, communicating with the
secretary of the Convention on Biological Diversity and establishing
cooperation with the COP of the CBD. Upon ratification, the Governing Body
must still address the level, form and manner of monetary payments on
commercialization, the terms of the standard MTA, the funding strategy and
cooperation with other relevant international bodies.
27
The International Treaty on Plant Genetic
Resources for Food and Agriculture works indirectly to alleviate world
hunger and protect species.28
Instead of calling for very specific measures, such as pinpointing
specific species to protect, the treaty calls for research on all species
to get an idea of what resources are available. The treaty aims to protect
species around the world. It is difficult to protect species in
undeveloped countries because many species and traditional techniques are
presently being destroyed. The treaty recognizes the importance of having
diverse plant resources and seeks to protect them through research and
conservation. With all the nations involved, developed nations can aid
developing nations and states can work together to conserve genetic
resources. The treaty does not ask each party to feed a homeless person.
It indirectly serves to solve world hunger by protecting species we use
today and furthering research to protect species we will need in the
future. By learning about new resources, states can increase biological
diversity, which, in turn creates more adaptable and useful species.
29 It is a commitment to explore
the possibilities of plant genetic resources.
The predecessor to the current treaty was called
the International Undertaking, and work on it began in 1983. In 1994, it
was decided that the Undertaking should no longer rely on voluntary
cooperation. The working group decided to add more explicit terms such as
"Farmers' Rights" and the word "Undertaking" was
changed to "Convention" which implies more of a legally-binding
document.30
Some nations were reluctant to make it binding because there systems
of plant breeding were not compatible with the requirements of the treaty,
but this issue was solved.31
Analysts of the treaty believe that after 7 years of negotiations, the
treaty is a "milestone" in biological diversity.32
Clive Stannard of FAO's commission of plant genetic resources, claims
"the Treaty is historic because it represents a legally-binding,
international commitment to the improvement of the world's key food and
feed crops."
33
A major
aspect of the treaty was the inclusion of Farmers' Rights and their being
explicitly laid out. Therefore, the treaty needed the binding cooperation
of everyone involved, instead of being based on a voluntary commitment.
Part of having a legally binding document agreement means creating
financial mechanisms to support the aims of the treaty, and the agreement
needed more detailed provisions in reference to the International Fund for
Farmers' Rights.
34 "For the first time, it
provides the International Agricultural Research Centres of the CGIAR with
a long-term, secure legal framework for the ex situ collections which they
hold in trust, and on which their research programs are based..."
The contracting parties want to ensure that collections of species are
protected by the governments involved. The International Undertaking in
1983 was overrun by the Convention on Biological Diversity because it was
decided that genetic resources should be under the jurisdiction of
national governments.36 The
voluntary agreement was easier to agree upon and adopt, but it had less
impact on the government and private sectors in dealing with large
investments.
37 The convention is now an
international instrument under the umbrella of the Food and Agriculture
Organization and the Convention on Biological Diversity. Under the FAO and
as a legally binding agreement, the treaty has much more stability,
especially in terms of institutional and financial support. Some analysts
believe the current text of the treaty is still too weak.
38
An editorial written for Genetic Resources Action International contends that the treaty is vaguely written, especially in protecting farmers' rights and ending the privatization of genetic resources. GRAIN argues that the treaty should not allow genetic resources to be patented under any circumstances. It also states that the treaty is not forceful enough in its enforcement procedure and that the treaty should rely on an international mechanism in addition to state governments.39
Most analysts agree the time has come for a binding agreement on the protection of plant genetic resources; the only contention lies in whether it is strong enough.
1. Commission on Genetic Resources for Food and Agriculture, International Undertaking on PGRFA, (2002), available at: <http://fao.org/ag/cgrfa/iu.htm>.
2. Id.
3. Consultive Group on International Agricultural Research, Who We Are: History of CGIAR, (2001), <http://www.cgiar.org/who/wwa_history.htm1#background>.
4. id.
5. Genetic Resources Action International,
A Disappointing Compromise, (2001)
available at: <http://www.grain.org/publications/seed-01-12-1-eno.cfm>.
6. Commission on Genetic Resources for Food and Agriculture, Commission on Plant Genetic Resources, (2002) <http://www.fao.org/ag/cgrfa>.
7. Commission on Genetic Resources for Food and Agriculture, International Undertaking on PGRFA, (2002), available at: <http://fao.org/ag/cgrfa/iu.htm>.
8. Commission on Genetic Resources for Food and Agriculture, Resolution 9/83, 22nd Conference of the FAO Conference, (2002), available at: <ftp://ext-ftp.fao.org/waicent/pub/cgfra8/Res/C9-83E.pdf>.
9. Commission on Genetic Resources for Food and Agriculture, International Undertaking on PGRFA, (2002), available at: <http://fao.org/ag/cgrfa/iu.htm>.
10. Id.
11. Id.
12. Commission on Genetic Resources for Food and Agriculture, Resolution 3/95, 28th Conference of the FAO Conference, (2002), available at: <ftp://ext-ftp.fao.org/waicent/pub/cgfra8/Res/C3-95E.pdf>.
13. Id.
14. International Institute for Sustainable Development, A Brief introduction to Negotiations on Plant Genetic Resources for Food and Agriculture, (2000), available at: <http://www.iisd.ca/linkages/biodiv/geneticsintro.html>.
15. Commission on Genetic Resources for Food and Agriculture, International Undertaking on PGRFA, (2002), available at: <http://fao.org/ag/cgrfa/iu.htm>.
16. Commission on Genetic Resources for Food and Agriculture, Commission on Plant Genetic Resources, (2002), <http://www.fao.org/ag/cgrfa>.
17. Food and Agriculture Organization of the United Nations, A Treaty on Agrobiodiversity, (2002), available at: <http://www.fao.org/ag/magazine/0112sp3.htm>.
18. Commission on Genetic Resources for Food and Agriculture, International Treaty on Plant Genetic Resources for Food and Agriculture, (2002), available at: <ftp://ext-ftp.fao.org/waicent/pub/cgrfa8/iu/ITPGRe.pdf>.
19.
Commission on Genetic Resources for Food and Agriculture, Making Plant Genetic Resources Beneficial and Accessible for
All, (2001), <http://www.fao.org/news/2001/011005-e.htm>.
20. Commission on Genetic Resources for Food and Agriculture, International
Treaty on Plant Genetic Resources for Food and Agriculture Approved by FAO
Conference, (2001), <http://www.fao.org/WAICENT/OIS/PRESS_NE/PRESSENG/2001/pren0181.htm>.
21. Commission on Genetic Resources for Food and Agriculture, Making Plant Genetic Resources Beneficial and Accessible for All, (2001), <http://www.fao.org/news/2001/011005-e.htm>.
22.
Commission on Genetic Resources for Food and Agriculture, Agreement Reached on Protecting Plant Genetic Resources,
(2001), <http://www.fao.org/news/2001/010703-e.htm>.
23. Commission on Genetic Resources for Food and Agriculture, Conference
Resolution, (2001), available at < ftp://ext-ftp.fao.org/waicent/pub/cgrfa8/res/c3-01e.pdf>.
24.
Id.
25. GRAIN, A Disappointing Compromise, (2001), <http:// www.grain.org/publications/sed-01-12-1-en.ctm>.
26. Greenpeace, Ratification Urgently Needed for Crucial Treaty on Plant Genetic Resources,
(2001), <http://www.greenpeace.org/~geneng/highlights/pat/FAO_4.htm>.
27. UK agricultural biodiversity coalition, Governing Genetic Resources: Profit for a Few or Food for All,
(2001), <http://
www.ukabc.org/iu_article.pdf, UKabc 2002>.
28. Commission on Genetic Resources for Food and Agriculture, International Treaty on Plant Genetic Resources for Food and Agriculture Approved by FAO Conference, (2001), <http://www.fao.org/WAICENT/OIS/PRESS_NE/PRESSENG/2001/pren0181.htm>.
29. Commission on Genetic Resources for Food and Agriculture, Making Plant Genetic Resources Beneficial and Accessible for All, (2001), <http://www.fao.org/news/2001/011005-e.htm>.
30. Commission on Genetic Resources for Food and Agriculture, Revision of the International Undertaking, (2001), available at <ext-ftp.fao.org/waicent/pub/cgrfa8/cgrfa6/R6W9E.pdf>.
31. Id.
32. Commission on Genetic Resources for Food and Agriculture, International Treaty on Plant Genetic Resources for Food and Agriculture Approved by FAO Conference, (2001), <http://www.fao.org/WAICENT/OIS/PRESS_NE/PRESSENG/2001/pren0181.htm>.
33. Agriculture 21, A Treaty on Agrobiodiversity, (2001), <http://www.fao.org/ag/magazine/0112sp3.htm>
34. Commission on Genetic Resources for Food and Agriculture, Revision of the International Undertaking, (2001), available at <ext-ftp.fao.org/waicent/pub/cgrfa8/cgrfa6/R6W9E.pdf>.
35. Agriculture 21, A Treaty on Agrobiodiversity, (2001), <http://www.fao.org/ag/magazine/0112sp3.htm
36. GRAIN, A Dissappointing Compromise, (2001), <http:// www.grain.org/publications/sed-01-12-1-en.ctm>.
37. Commission on Genetic Resources for Food and Agriculture, Revision of the International Undertaking, (2001), available at <ext-ftp.fao.org/waicent/pub/cgrfa8/cgrfa6/R6W9E.pdf>.
38. GRAIN, A Dissappointing Compromise, (2001), <http://www.grain.org/publications/sed-01-12-1-en.ctm>.
39. Id.