International Treaty on Plant Genetic Resources for Food and Agriculture in United States

International Treaty on Plant Genetic Resources for Food and Agriculture

Title of the Treaty

The International Treaty on Plant Genetic Resources for Food and Agriculture

About the International Treaty on Plant Genetic Resources for Food and Agriculture

An International Undertaking on Plant Genetic Resources, negotiated in the UN Food and Agriculture Organisation, was adopted in 1983. It dealt with access to, conservation and sustainable use of plant genetic resources of economic and/or social interest. It was a voluntary agreement.

The Convention on Biological Diversity (CBD) was adopted in 1992. It also deals with, inter alia, access to, conservation and sustainable use of genetic resources. In addition, the CBD recognised national sovereignty over genetic resources, previously considered a ‘common heritage of mankind’, and established that access to such resources should be subject to national legislation. It also introduced provisions requiring prior informed consent for access to genetic resources and on the sharing of benefits arising from their use.

The 1993 FAO Conference decided that the International Undertaking on Plant Genetic Resources should be revised in harmony with the CBD. Protracted negotiations eventually lead to the adoption of the International Treaty on Plant Genetic Resources for Food and Agriculture by the FAO Conference on 3 November 2001. This is a legally binding agreement.

The main objectives of the IT are sustainable agriculture and food security through the conservation and sustainable use of PGRFA. The central plank of the IT is a Multilateral System of Access and Benefit-Sharing. The Multilateral System applies to a list of crops and forages specified in the Treaty which include many, but not all, of the most important crops necessary for food security. It applies only to PGRFA under the management and control of Contracting Parties, although private owners of PGRFA are encouraged to add their resources to the system and be bound by the Treaty’s tenets.

Under the Multilateral System, Contracting Parties undertake to facilitate access to PGRFA, which is subject to a number of specific conditions. These include that:

access shall be provided solely for the purpose of utilisation and conservation for research, breeding and training for food and agriculture;
all available non-confidential information on the material accessed should be provided;
no intellectual property rights shall be claimed which limit facilitated access to the material, or its genetic parts and components, in the form received from the Multilateral System.

A standard contract (known as a material transfer agreement), which will specify all conditions, will be established by the Governing Body for use in all exchange of PGRFA under the Multilateral System.

A range of benefits are to be made available, largely not linked to access to PGRFA under the Multilateral System. Such benefits include exchange of information, access to and transfer of technology, capacity building and monetary and other benefits derived from commercialisation of PGRFA. The main aim of the benefits, together with a funding strategy (which serves to make available resources for the implementation of the entire Treaty), is to provide developing countries with the resources and capability to conserve and sustainably use their own PGRFA and any that they may access under the Multilateral System. Such benefits will be delivered through bilateral and multilateral arrangements including through plans and programmes to be adopted by the Governing Body.

Monetary benefit-sharing will arise where a product derived from PGRFA obtained through the Multilateral System, which is also a genetic resource (e.g. a new plant variety), is commercialised and to which access for further research and breeding is restricted (e.g. through some forms of intellectual property right). In such cases, an equitable share of the benefits must be paid into a fund that will form part of the funding strategy. The mechanism for establishing the share of benefits is to be decided by the Governing Body. In all other cases where products derived from PGRFA obtained under the Multilateral System are commercialised, voluntary contributions are encouraged.

Another important element of the IT is its provisions regarding the International Agricultural Research Centres (IARCs) of the Consultative Group on International Agricultural Research. The IARCs hold the world’s largest collection of PGRFA, which is held in trust under the auspices of the FAO. Through their plant breeding work, IARCs have been crucial to achieving increased agricultural production and food security in developing countries over the last 40 years. The IT clarifies their relationship with the FAO, ensuring that the PGRFA they hold will continue to be held for the benefit of the international community.

The IT also responds to the call by developing countries for international recognition of Farmer’s Rights. Such Right’s might include protection of traditional knowledge and rights to save, use, exchange and sell farm saved seed. The responsibility for realising Farmer’s Rights rests with national governments.

The European Community (EC) (now, European Union) took a leading role in these negotiations and their successful conclusion. While it would have been desirable to ensure initial Treaty coverage of a longer list of crops to which the Multilateral System will apply, the instrument has the potential to become a major platform for international efforts to achieve world food security. The safeguarding of the PGRFA held by IARCs is particularly important. The IT is also the first legally binding international agreement concerned with sustainable agriculture and forms a starting point on which the international community should be able to build for the future.

The Treaty excludes the possibility of reservations.

Article 22.3 provides that when ratifying the Treaty, or at any time thereafter, Contracting Parties may make a declaration specifying that, in the case of any disputes between Parties that cannot be resolved either between the Parties concerned or through mediation by a third party, it accepts either compulsory arbitration according to a procedure laid down in Annex II to the Treaty or submission to the International Court of Justice. In the absence of such a declaration, disputes will be subject to a conciliation procedure, also laid down in Annex II to the Treaty. The UK does not intend to make a declaration at the time of ratification.

The Commission Legal Services have advised that the EC should make a declaration at the time of ratification with regard to Article 12.3(d) of the Treaty. This article states that ‘recipients of [material from the Multilateral System] 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.’ The wording is ambiguous and could be interpreted as restricting the extent to which innovations involving genetic resources may be protected by intellectual property rights. At the time of adoption of the Treaty the EC and its Member States made a statement making clear that our interpretation of this Article would enable such inventions to be patentable, provided that all other criteria for patentability were satisfied. It is proposed that a similar statement be made at the time of ratification.

Implementation

The IT will enter into force 90 days after it has been ratified by at least 40 countries. As of 5 June 2003 88 countries had signed the IT, of which 21 had also deposited instruments of ratification, acceptance, approval or accession. The EC and all Member States signed the IT on 6 June 2002.

Implementation of the provisions of the IT falls partly within Community competence and partly within the competence of Member States. It is therefore necessary for the EC and each Member State individually to ratify the IT. A Council Decision will be required for EC ratification. When the Commission makes its proposal for such a decision (expected in early 2003), a further Explanatory Memorandum will be tabled.

The Commission Legal Services do not consider that new EU legislation will be required.