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5. AGROBIODIVERSITY


I. INTRODUCTION

On 3 November 2001, the International Treaty on Plant Genetic Resources for Food and Agriculture (Treaty) was adopted by the FAO Conference at its 31st session in Rome, by Resolution 3/2001, with 116 favourable votes, no dissenting votes and two abstentions (Japan and the United States).

The Treaty is a new, legally binding instrument which seeks to ensure the conservation and sustainable management of plant genetic resources for food and agriculture, as well as the fair and equitable sharing of the benefits arising from their use (art. 1.1). At the crossroads of agriculture, commerce and the environment, the Treaty also aims to promote synergy in these areas (preamble). As one commentator put it, this newly born treaty is “the latest innovation to address the intersection of international environmental, agricultural and trade law”. (Earth Negotiations Bulletin, 2001)

Once in force, the Treaty will succeed the International Undertaking on Plant Genetic Resources (Undertaking), a soft law instrument adopted by FAO in 1983, and the first international agreement to deal with sustainable management of plant genetic resources at the global level. The Undertaking was adopted by Resolution 8/83 of the FAO Conference to “ensure that plant genetic resources of economic and/or social interest, particularly for agriculture, will be explored, preserved, evaluated and made available for plant breeding and scientific purposes”. (Art. 1) Three other resolutions containing agreed interpretations were subsequently adopted and annexed to the Undertaking. As of June 2002, 113 countries had adhered to it.

Secretariat functions for the Undertaking have been performed by the FAO Commission on Genetic Resources for Food and Agriculture (Commission), an intergovernmental forum that was also created in 1983 to facilitate policy dialogue and technical discussions on genetic resources of relevance to food and agriculture. Its mandate, initially limited to plant genetic resources, was broadened in 1995 to cover all components of agrobiodiversity. As of June 2002, 161 countries and the European Union were members of the Commission.

As the Treaty is one of the most significant developments in agriculture and natural resource management since Rio, this chapter briefly describes is gestation, highlights its main provisions, discusses implementing measures and outlines the arrangements to be made in preparation for its entry into force.

II. DEVELOPMENT OF THE INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES

Unlike some recent biodiversity or environment-related conventions, such as the 2001 Convention on Persistent Organic Pollutants (POPs) or the 2000 Cartagena Protocol on Biosafety, for which the negotiations were swiftly completed in a matter of two or three years, the present Treaty's gestation was not an easy one. It is the result of a hard-fought seven-year negotiating process, which began in November 1994 at the 1st extraordinary session of the Commission, and continued through June 2001 following three regular and five extraordinary sessions. The negotiations also included an informal expert meeting and six intersessional meetings of the Chairman's Contact Group.[1] The process was eventually concluded within an open-ended working group which met in Rome during the 121st session of the FAO Council, from 30 October to 1 November 2001, only two days before the Treaty's formal adoption.

The adoption of the Treaty fulfils the request in Resolution 7/93 of the FAO Conference that the Director-General of FAO provide a negotiation forum for “the adaptation of the International Undertaking on Plant Genetic Resources, in harmony with the Convention on Biological Diversity”, and for “consideration of the issue of access on mutually agreed terms to plant genetic resources, including ex situ collections not addressed by the Convention”.

This move was partly in response to biodiversity-related developments which had occurred about the same time. In particular, when the agreed text of the Convention on Biological Diversity (CBD) was adopted in Nairobi in May 1992, Resolution 3 of the Final Act stated that access to ex situ collections not acquired in accordance with the CBD, as well as farmers' rights, were outstanding matters for which solutions should be sought within the FAO Global System on Plant Genetic Resources - that is, primarily through the Undertaking. Similarly, a month later at the UN Conference on Environment and Development (UNCED), Chapter 14 of Agenda 21 (“Promoting Sustainable Agriculture and Rural Development”) had called for the strengthening of the FAO system on plant genetic resources, including through steps to realize farmers' rights, as well as the “adjustment” of that system in line with the CBD.

Earlier, between 1989 and 1991, the original text of the Undertaking had already been the subject of a series of “agreed interpretations”, which aimed to find an equitable balance between the interests of developing and developed countries, and between the rights of farmers (informal innovators of farmers' varieties) and of breeders (formal innovators of commercial varieties and breeders' lines). This process helped attract a broader acceptance of the Undertaking over the years, through the following decisions of the FAO Conference:

The three resolutions were then incorporated into the text of the Undertaking as Annexes 1, 2 and 3. This gradual evolution resulted in key shifts in the Undertaking's conceptual grounds, particularly as regards the recognition of: (i) its compatibility with plant breeders' rights as provided for by UPOV; (ii) the need to realize farmers' rights; and (iii) state sovereignty over plant genetic resources.

These moves helped address some of the concerns that had been voiced by a number of countries, both developed and developing. The Undertaking was originally founded on “the universally accepted principle that plant genetic resources are a heritage of mankind and consequently should be available without restriction” (art. 1, emphasis added). Some developed countries, concerned that such a heritage-based approach could undermine the rights of plant breeders, had adhered to the Undertaking with reservations; hence, the explicit recognition of plant breeders' rights in Resolution 4/89. This, however, was counterbalanced by the simultaneous recognition of farmers' rights, stemming from “the enormous contribution that farmers of all regions have made to the conservation and development of plant genetic resources, which constitute the basis of plant production throughout the world”, a position that was largely advocated by developing countries.

At the same time, those decisions contributed to paving the way for the revision of the Undertaking in a manner consistent with related legal instruments. In this connection, Resolution 3/91 explicitly stated, on the one hand, that “breeders' lines and farmers' breeding material should only be available at the discretion of their developers during the period of development”, echoing to some extent the 1991 amendment to the UPOV Act; and, on the other hand, that “nations have sovereign rights over their plant genetic resources”, and that “the concept of mankind's heritage, as applied in the International Undertaking on Plant Genetic Resources, is subject to the sovereignty of the states over their plant genetic resources”. Such language reflected an obvious move from a heritage-based approach towards a sovereignty-based approach, a position that had already prevailed at the time in the draft text of the CBD, and which was later repeatedly confirmed in various UNCED and post-UNCED legal documents. Resolution 3/91 therefore clearly contributed to closing the gaps between the Undertaking and related conventions, in particular with the draft CBD.

III. CORE OF THE TREATY

3.1. Underlying Principles

As finally approved, the Treaty - while articulating the specific nature and needs of the agriculture sector - reflects some of the major principles of contemporary international environmental and biodiversity law, as enunciated, for example, in the Rio Declaration or in the CBD.

The sovereign rights of states over their plant genetic resources is one of those principles. It is clearly affirmed in the very first paragraph of the preamble to Resolution 3/2001 by which the Treaty was adopted, as well as in the second-to-last paragraph of the preamble and in article 10 of the Treaty itself, particularly in relation to access rights. Conversely, no reference is made in the Treaty to the “heritage of mankind”, a concept that was central to the Undertaking. Instead, the notion that plant genetic resources are a “common concern of all countries” is used in the Treaty's preamble, in line with similar wording in the preamble to the CBD (“Affirming that the conservation of biological diversity is a common concern of humankind”). The Treaty and the CBD are therefore in full harmony in this regard.

The principle that plant genetic resources should be conserved and used in a sustainable way is also unequivocally stated in the Treaty - where the term “sustainable” appears no less than 24 times, and “sustainably” twice. Article 6, more specifically, spells out the type of measures that should be taken to promote sustainability in this context, including the following: (i) encouraging farming systems that enhance the sustainable use of agrobiodiversity and other natural resources; (ii) maximizing intra- and inter-specific variation for the benefit of farmers, especially those who apply ecological principles in maintaining soil fertility and combating diseases, weeds and pests; (iii) broadening the genetic base of crops and increasing the range of genetic diversity available to farmers; and (iv) promoting increased world food production compatible with sustainable development.

Access to information related to plant genetic resources is another principle that is addressed by various provisions of the Treaty. According to article 13.2-a, for instance, non-confidential information regarding catalogues, inventories, technologies, results of research, etc. on plant genetic resources is to be made available to contracting parties through the global information system provided for in article 17. This system is to be developed by Treaty members, in collaboration with the CBD's Clearing-House Mechanism, in order to facilitate information exchange “on scientific, technical and environmental matters related to plant genetic resources for food and agriculture”, with a view to contributing to the sharing of benefits therefrom.

Furthermore, there is ample provision in the Treaty for participation in decisionmaking by interested stakeholders on various aspects of plant genetic resource conservation and use, first in the preamble (para. 8), then in articles 6.2-c and 9.2-c.

3.2. Groundbreaking Provisions

It is in light of the above principles that the substantive provisions of the Treaty should be read. Some of these are groundbreaking. First and foremost, farmers' rights have now been formally endorsed by a legally binding instrument at the global level. The relevant provisions of the Treaty are article 9 (see Box 1) and paragraphs 7 and 8 of the preamble, which largely borrowed from, and built upon, the aforementioned FAO Conference Resolutions 4/89, 5/89 and 3/91, which conceptualized the notion of farmers' rights under the Undertaking.

Box 1 - Article 9: Farmers' Rights

9.1. The Contracting Parties 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.

9.2. The Contracting Parties agree that the responsibility for realizing Farmers' Rights, as they relate to plant genetic resources for food and agriculture, rests with national governments. In accordance with their needs and priorities, each Contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote Farmers' Rights, including:

(a) protection of traditional knowledge relevant to plant genetic resources for food and agriculture;

(b) the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and

(c) the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.

9.3. 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 important landmark in contemporary treaty law represents a major step toward wider acknowledgement and genuine implementation of the rights conferred on informal innovators (“traditional farmers”), to rest on an equal footing with the rights already granted to formal innovators (“modern breeders”) by existing conventions, and reaffirmed by this Treaty in paragraph 6 of the preamble and articles 6.2(c)) and 7.2(b), in particular.

The scope of the Treaty covers all plant genetic resources for food and agriculture (art. 3). Within this broader framework, another key element of the Treaty is the provision for a Multilateral System of Facilitated Access and Benefit-Sharing for plant genetic resources, to which the whole of Part IV - articles 10 through 14 - is devoted. The system aims to provide facilitated access to an agreed list of over 60 plant genera, including 35 crops and 29 forages, established on the basis of interdependence and their importance for food security (art. 11). The current agreed list, which includes most crops that are considered essential to world food security, is appended to the main body of the Treaty as Annex I.

Contracting parties agree to provide to each other facilitated access in accordance with the conditions specified in article 12.3, in particular that recipients “shall not claim any intellectual property or other rights that limit the facilitated access to plant genetic resources for food and agriculture, or their genetic parts or components, in the form received from the Multilateral System”. The subject of heated discussions during the negotiations of the Treaty, this clause was opposed by some countries which were concerned that it could impinge on their intellectual property laws and policies, while other countries viewed it as consistent with theirs. With a view to its interpretation and implementation, this provision will surely need to be further debated within the Treaty's Governing Body.

By pooling these resources in such a way, and dealing with them through multilateral arrangements, countries forgo the possibility of bilateral arrangements. This being the case, the benefits resulting from the use of genetic resources - including commercial use - do not return to the country of origin, but are to be shared in a fair and equitable manner through multilateral mechanisms. In addition, they should flow primarily to farmers in all countries, especially in developing countries and countries with economies in transition, who conserve and sustainably utilize plant genetic resources for food and agriculture (art. 13).

The Treaty makes provision for benefits accruing from the use - including the commercial use - of the material accessed under the Multilateral System to be shared fairly and equitably, through a variety of actions (art. 13). These include partnerships and collaboration with the private and public sectors of countries in development and in transition. There will be increased opportunities for developing joint strategies for the conservation and sustainable use of plant genetic resources; for the facilitation of research partnerships and the pooling of resources to exploit plant genetic resources; for access to relevant research and technologies; and for access by germplasm providers to information and training.

It should be noted in this connection that, in 1993, the FAO Conference adopted the International Code of Conduct for Plant Germplasm Collecting and Transfer to promote the rational collection and sustainable use of genetic resources, to prevent genetic erosion and to protect the interests of both donors and collectors of germplasm. The Code is based on the principle of national sovereignty over plant genetic resources and sets out standards and principles to be observed by the countries and institutions that adhere to it. It proposes procedures for collection; provides guidelines for collectors; and extends responsibilities and obligations to the sponsors of missions, the curators of genebanks and the users of genetic material. It calls for the participation of farmers and local institutions in collecting missions and proposes that users of germplasm share the benefits derived from the use of plant genetic resources with the host country and its farmers. A primary function of the Code is to serve as a point of reference until such time as individual countries establish their own codes or regulations for germplasm exploration and collection, conservation, exchange and utilization.

But it is the provisions of the Treaty regarding the sharing of the monetary benefits arising from commercial use that represent the real conceptual breakthrough in this connection. For the first time, someone who obtains a commercial profit from the use of genetic resources administered multilaterally will be obliged, by a Standard Material Transfer Agreement, to share such profits fairly and equitably, and to make an equitable payment to the multilateral mechanism. Such payments are to be used by the Governing Body of the Treaty as part of its funding strategy for benefit-sharing (art. 13.2(d)).

The Treaty distinguishes between mandatory and voluntary payment. Payment is mandatory on the commercialization of a product that is a plant genetic resource and that incorporates material accessed from the Multilateral System, when this product is not available without restriction to others for further research and breeding. Payment is voluntary when such product is available.

The Governing Body shall, at its first meeting, determine the level, form and manner of the payments, in line with commercial practice. It may also decide to establish different levels of payment for various categories of recipients trading in such products, and from time to time review the levels of payment. Furthermore, the Governing Body may assess, within five years of the entry into force of the Treaty, whether mandatory payment shall also apply in cases where commercial products are available without restriction for further research and breeding (art. 13.2(d)(ii)). The contracting parties shall also consider modalities of a strategy of voluntary benefit-sharing contributions by food processing industries that benefit from plant genetic resources (art. 13.6).

Such monetary benefit-sharing is part of a larger whole. In article 18, the Treaty establishes a funding strategy, which will mobilize funding for priority activities, plans and programmes, in particular in developing countries and countries with economies in transition. Moreover, the contracting parties are to take the necessary and appropriate measures within relevant international mechanisms, funds and bodies to ensure that due priority and attention are given to the effective allocation of predictable and agreed resources, taking into account the priorities established in the Global Plan of Action for the Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture adopted in 1996 by 150 countries at the Leipzig International Technical Conference on Plant Genetic Resources for Food and Agriculture. The Plan is intended as a framework, guide and catalyst for action at community, national, regional and international levels. It seeks to create an efficient system for the conservation and sustainable use of plant genetic resources, through better cooperation, coordination and planning and through the strengthening of national capacity.

Last, but not least, the Treaty for the first time provides an agreed international framework for the ex situ collections of plant genetic resources held in trust by the International Agricultural Research Centres (IARCs) of the Consultative Group on International Agricultural Research (CGIAR) and by other relevant international organizations. An international network of ex situ collections was created in 1989 under the auspices of FAO in collaboration with CGIAR. In 1994, 12 CGIAR centres signed agreements with FAO whereby they placed most of their collections (some 500 000) in that network and agreed to hold the designated germplasm in trust for the benefit of the international community, and not to claim ownership or seek intellectual property rights over the germplasm and related information. The signature of agreements between IARCs and other such organizations and the Treaty's Governing Body is foreseen for the purpose of making the collections' material available within the context of the Multilateral System, and under the terms and conditions set out in article 15.

Other important provisions of the Treaty include those dealing with: (i) the promotion of international networks for cooperation on plant genetic resources (art. 16); (ii) the institutional arrangements to be put in place for the operation of the Treaty (arts. 19 and 20); and (iii) compliance, dispute settlement, amendments, reservations and termination (arts. 21-35). A number of these provisions relate to the future functioning of the Treaty, whose Governing Body is made up of all contracting parties. The parties shall in turn elect the Chair and Vice-chairs of the Governing Body, who will form the Bureau (art. 19), with a Secretary appointed by the Director-General of FAO (art. 20).

IV. IMPLEMENTING THE TREATY

4.1. Paving the Way: Interim Arrangements

During the year following its adoption, the Treaty will remain open for signature at FAO Headquarters (art. 25), with the Director-General of FAO performing depository functions (art. 34). As of June 2002, in addition to the European Union, 56 countries had signed the Treaty, including 35 developing countries and 20 developed countries. Moreover, seven countries had already deposited their instrument of ratification (Canada, Eritrea, India, Jordan, Sudan), of acceptance (Cambodia) or of approval (Guinea). The Treaty will enter into force three months after its ratification by 40 contracting parties (art. 28).

In the interim, various institutional and financial arrangements, described in Resolution 3/2001, should be adopted to prepare for the Treaty's future implementation. They mainly consist of the following:

These tasks and others will keep negotiators and experts busy for quite some time. Progress in these matters will be indispensable if the Treaty is to attract, before long, the required number of ratifications to become effective. To this end, mobilizing appropriate resources will be essential, as well as strengthening cooperation among all those active in the area of agrobiodiversity. Contracting parties will also have to prepare for compliance with the Treaty, particularly in terms of building the capacities and acquiring the tools necessary to exercise their rights and fulfil their obligations.

4.2. Promoting Compliance: National Legislation

Among the chief measures to be taken in this respect are the design or adjustment of domestic policies and laws relating to agrobiodiversity to meet the Treaty's requirements, as explicitly stated in articles 4 and 6 of the Treaty. Mechanisms to promote compliance will also include legal assistance to countries in development and in transition on matters covered by the Treaty (art. 21). Moreover, the terms of the Standard Material Transfer Agreement, by which commercial benefits will be fairly and equitably shared, will be a major conceptual task, for which new national implementing legislation will also be required.

New legislation will be especially needed in such novel areas as farmers' rights (art. 9.2), as they are crucial in providing an incentive for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world (Esquínas-Alcázar, 2000 and 1987). The process of conceptualizing and writing laws in this area has started only very recently. India is the first country to have passed a law in this area: the Protection of Plant Varieties and Farmers' Rights Act 53 of 31 August 2001 (Sahai, 2000), already mentioned in Chapter 4. The 2000 OAU “African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources”, in Part V on farmers' rights, is another illustration of emerging efforts towards the formal sanction of farmers' rights.[2] Some of the relevant provisions of both texts, abstracted in Box 2, are clearly inspired by, if not modelled after, the concept of farmers' rights as developed under the Undertaking and reaffirmed by the Treaty.

In the broader area of genetic resources, some 50 countries have already introduced, or are developing, laws and other policy measures to regulate access modalities and provide for benefit sharing. The majority of countries contemplating such laws are developing countries. Regional groups, national governments or state governments already regulating access to genetic resources to ensure prior informed consent and benefit-sharing include: the Andean Pact (Bolivia, Colombia, Ecuador, Peru, Venezuela); Australia (the states of Western Australia and Queensland); Brazil (at the federal level and the states of Acre and Amapa); Cameroon; Costa Rica; the Republic of Korea; Malaysia (the state of Sarawak); Mexico; the United States (within Yellowstone and other national parks) and the Philippines (GRAIN, 2002).

In general, existing access legislation recognizes sovereign rights over biological resources, sets forth the administrative process for access and establishes conditions for access. Much of the existing national access legislation applies to all genetic resources and, like the CBD, does not distinguish between different sectors of biodiversity, or between resources maintained in situ or ex situ. In the Syrian Arab Republic, however, specific legislation is being developed in line with the Treaty. In view of its novelty, this legislation is described hereafter in some detail.

Box 2 - Farmers' Rights in Two Recent Texts

African Model Legislation (2000)

Indian Act (2001)

Recognition of Farmers' Rights

24(1) Farmers' Rights are recognized as stemming from the enormous contributions that local farming communities ... have made in the conservation, development and sustainable use of plant and animal genetic resources that constitute the basis of breeding for food and agriculture production; and

(2) For farmers to continue making these achievements, therefore, Farmers' Rights have to be recognized and protected.

Application of the Law on Farmers' Varieties

25(1) Farmers' varieties and breeds are recognized and shall be protected under the rules of practice as found in, and recognized by, the customary practices and laws of the concerned local farming communities, whether such laws are written or not.

(2) A variety with specific attributes identified by a community shall be granted intellectual protection through a variety certificate which does not have to meet the criteria of distinction, uniformity and stability. This variety certificate entitles the community to have the exclusive rights to multiply, cultivate, use or sell the variety, or to license its use without prejudice to the Farmers' Rights set out in this law.

Farmers' Rights

26(1) Farmers' Rights shall ... include the right to:

a) the protection of their traditional knowledge relevant to plant and animal genetic resources;

b) obtain an equitable share of benefits arising from the use of plant and animal genetic resources;

c) participate in making decisions, including at the national level, on matters related to the conservation and sustainable use of plant and animal genetic resources;

d) save, use, exchange and sell farm-saved seed/propagating material of farmers' varieties;

e) use a new breeders' variety protected under this law to develop farmers' varieties, including material obtained from genebanks or plant genetic resource centres; and

f) collectively save, use, multiply and process farm-saved seed of protected varieties.

Definitions

2(k) “farmer” means any person who- (i) cultivates crops either by cultivating the land himself; or (ii) cultivates crops by directly supervising the cultivation of land through any other person; or (iii) conserves and preserves, severally or jointly, with any person any wild species or traditional varieties or adds value to such wild species or traditional varieties through selection and identification of their useful properties.

(l) “farmers' variety” means a variety which- (i) has been traditionally cultivated and evolved by the farmers in their fields; or (ii) is a wild relative or land race of a variety about which the farmers possess the common knowledge.

Chapter VI - Farmers Rights

39(1) Notwithstanding anything contained in this Act, a farmer-

(i) Who has bred or developed a new variety shall be entitled for registration and other protection in like manner as a breeder of a variety under this Act,...

(iii) Who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation shall be entitled in the prescribed manner for recognition and reward from the National Gene Fund; Provided that material so selected and preserved has been used as donors of genes in varieties registrable under this Act,

(iv) shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act;

Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.

4.3. A Pioneering Effort: The Syrian Arab Republic's Draft Law

With assistance from FAO, the Government of the Syrian Arab Republic is formulating legislation on exchange of plant genetic resources. The draft legislation mandates bilateral arrangements between specified Syrian authorities and any party seeking access to Syria's plant genetic resources. The legislation has a broad scope. In addition to facilitated access to plant genetic resources, it provides for the fair and equitable sharing of benefits derived from their use, and recognizes the rights of farmers and local communities (Cantarella and Cooper, 2002).

What makes the Syrian legislation noteworthy is that it is the first national legislation to be drafted in conformity with the Treaty; in fact, Syria signed the Treaty at the World Food Summit: five years later in Rome in June 2002. The draft legislation not only embodies the principles of the Treaty, but also provides for the mechanisms to facilitate access under the multilateral system (MLS) established in the Treaty. The legislation is also consistent with the CBD.

The Syrian legislation sets forth three basic access and benefit-sharing arrangements: one under the MLS, and the other two for access not pursuant to the MLS - one for applicants requesting access for non-commercial purposes and one for commercial purposes. The legislation is designed to avoid unnecessarily cumbersome access procedures, both for the applicants and for the Syrian authorities. As such, the legislation provides for simple procedures and standard terms and conditions in the case of access requests made under the Treaty and applications for non-commercial purposes. The access regime allows applicants to define their intentions with respect to access and avoids the need to infer the nature of the access from the description of the project in the application. Nonetheless, the ultimate determination as to what type of access is appropriate rests with the Syrian authority.

4.3.1. Access Under the Treaty

The terms of access for plant genetic resources for food and agriculture under the MLS are in complete accordance with the Treaty. Access shall be provided solely for the purposes of utilization and conservation for research, breeding and training for food and agriculture, and is contingent on the applicant's acceptance of the Standard Material Transfer Agreement provided for in the Treaty. (The Syrian legislation provides for an interim MLS Material Transfer Agreement to be used pending the adoption of the Standard Material Transfer Agreement by the Governing Body of the Treaty.) The legislation incorporates the list of crops covered under the MLS. Additionally, it establishes that plant genetic resources on this list held in national ex situ collections (including those held by Syrian universities and research institutes), as well as those held in situ on government lands, are included under the MLS. The list of crops may be amended in accordance with any amendments to the Treaty's list, or if the Syrian authorities independently determine that additional plant genetic resources should be made available.

4.3.2. Access Other Than Under the Treaty

As noted, the terms of access other than under the Treaty are determined according to the purpose for which access is sought.

(a) Non-commercial Purpose

Applicants who desire access to plant genetic resources solely for academic, educational, scientific or public use purposes must execute a non-commercial Material Transfer Agreement. No rights to commercialization are granted to the applicant, nor may the applicant claim any rights, including intellectual property rights, over the plant genetic resources or any derivatives or associated traditional knowledge. Additionally, the legislation allows the Syrian authority discretion to enter into umbrella agreements with Syrian universities and research institutes and international institutes based in Syria, to facilitate academic, research and not-for-profit activities.

(b) Commercial Purpose

Applicants who desire access for any commercial purpose must execute a Commercial Material Transfer Agreement. Commercial purposes include use or exploitation of plant genetic resources for financial gain, including but not limited to sale, product development, market research, pre-market approval and pursuit of intellectual property (or any other) rights. The applicant and the Syrian authority negotiate these agreements in consultation with relevant stakeholders on a case-by-case basis, and in reference to the conditions of access and benefit sharing provided in the subsidiary regulations to the draft legislation. These draw upon the “Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Use”, adopted at CBD's 6th Conference of Parties in April 2002. (CBD, 2002) The terms of the Commercial Material Transfer Agreement must be reviewed by a Policy Advisory Body, which, before granting access, will advise on both the adequacy of the terms proposed and of the consultation process with stakeholders.

For access for commercial purposes, while rights over the plant genetic resources themselves cannot be acquired under any circumstances, the issue of rights over derivatives, other than proximate derivatives, is also to be addressed on a case-by-case basis. Thus, a Commercial Material Transfer Agreement could potentially permit a recipient of plant genetic resources to acquire intellectual property rights in a technology, process or end product derived from such plant genetic resources, but not the plant genetic resources themselves or their proximate derivatives.

4.3.3. Sustainable Use and Benefit Sharing

Recognizing that the goals of conservation, sustainable use and benefit sharing can only be achieved if plant genetic resources are accessed, the Syrian legislation balances access to, and protection of, plant genetic resources. It provides a clearly defined regulatory scheme that facilitates access by informing applicants of the Syrian requirements before they submit their applications. Moreover, the legislation provides streamlined procedures for applicants making requests under the Treaty or seeking access for non-commercial purposes, and eliminates restrictive administrative requirements that would create disincentives for undergoing the access process. Consequently, the regime facilitates access for precisely those applicants whom the Treaty aims to assist.

In order to protect the plant genetic resources and to promote benefit sharing, the procedures for applications made for commercial purposes or for those that might involve transfer of any rights over the plant genetic resources require full prior informed consent procedures and negotiation of mutually agreed terms on a case-by-case basis. The legislation also sets out the range of conservation and sustainable use activities that should be promoted by the authority through policies and programmes that are largely derived from the Treaty.

4.3.4. Farmers' Rights

Consistent with the Treaty's goals, the access regime of the draft Syrian legislation also protects the rights of local communities and farmers' rights. The legislation provides for the protection of traditional knowledge, the right of farmers and local communities to participate in decisionmaking at the national level on matters related to the conservation and sustainable use of plant genetic resources and the sharing of benefits arising from the use of plant genetic resources. The legislation also requires consultation with farmers and local communities prior to granting consent for collecting in situ plant genetic resources. The legislation provides for public disclosure of information provided in applications, which increases transparency and can contribute to involving stakeholders in the access process. Finally, the legislation does not apply to or affect customary exchange of plant genetic resources between farmers.

V. CONCLUSION

The International Treaty on Plant Genetic Resources for Food and Agriculture is the first legally binding instrument that deals specifically with agrobiodiversity at the global level, providing for the conservation and sustainable use of plant genetic resources for food and agriculture. It is grounded on contemporary principles of natural resource and biological diversity law, such as sovereignty of states over their plant genetic resources coupled with the duty to protect and use them sustainably, along with the principles of access to information and of participation in decisionmaking by interested stakeholders. Thus, notwithstanding its distinctiveness in terms of agrobiodiversity, the Treaty may be viewed as belonging to the wider family of modern biodiversity-inspired international legal instruments.

The Treaty addresses conservation measures - both in situ and ex situ - as well as the rights of traditional farmers and of modern breeders. Its centrepiece is the multilateral system of facilitated access to plant genera that are essential to food security, and of equitable sharing of the benefits arising from their use, under conditions to be set out in the Standard Material Transfer Agreement after the Treaty's entry into force.

In view of this, contracting parties will need to develop new legislation or to adjust existing laws in the area of agrobiodiversity. In particular, making benefit sharing and farmers' rights a reality, at the national level as well as between nations, will represent a challenge in the coming years - and one of the manifold tasks to be steadily addressed in implementing the Treaty.

REFERENCES

Cantarella, C. & Cooper, H.D. 2002. Formulation of Draft Legislation on Plant Genetic Resources for Syria. FAO, Rome.

CBD. 2002. Report of the Ad Hoc Open-ended Working Group on Access and Benefit-sharing. Convention on Biological Diversity. UNEP/CBD/COP/6/6, 31 October 2002.

Earth Negotiations Bulletin. 2001. Negotiations on the International Treaty on Plant Genetic Resources for Food and Agriculture: 30 October - 3 November 2001. Vol. 9, No. 213 (www.iisd.ca/biodiv/iu-wg).

Esquínas-Alcázar, J. 1987. Plant Genetic Resources: A Base for Food Security. CERES, No. 118, Vol. 20/4, 1987.

Esquínas-Alcázar, J. 2000. Agricultural Biological Diversity and Farmers' Rights. World Conference on Bioethics, Gijón, Spain.

ETC Group. 2001. The Law of the Seed! Erosion, Technology and Concentration Group. Vol. 3, No. 1 (www.etcgroup.org/documents/trans_treaty_dec2001.pdf).

FAO. 1999. Progress Report on the International Network of ex situ Collections Under the Auspices of FAO, CGRFA-8/99/7, Rome. (ftp://ext-ftp.fao.org/waicent/pub/cgrfa8/8-7-e.pdf).

FAO. 2002. A Treaty on Plant Genetic Resources (www.fao.org/ag/magazine/0112sp3.htm).

GRAIN. 2002. Biodiversity Rights Legislation. Genetic Resources Action International (GRAIN) (www.grain.org/brl/index.cfm).

Mekouar, M.A. 2001. A Global Instrument on Agrobiodiversity: The International Treaty on Plant Genetic Resources for Food and Agriculture. Environmental Policy and Law [also published in 2002 as FAO Legal Paper Online No. 24 (www.fao.org/Legal)].

Sahai, S. 2000. India's Plant Varieties Protection and Farmers' Rights Act, www.ciroap.org/food/PVP_SUNS.PDF.

Swaminathan Research Foundation. 1996. Agrobiodiversity and Farmers' Rights. Proceedings of a Technical Consultation on an Implementation Framework for Farmers' Rights, Madras.


[1] The Contact Group comprised 40 countries and the European Union.
[2] General references to farmers' rights may be found in a few other texts, such as Costa Rica's 1998 Ley de biodiversidad, which provides: (i) "El Estado reconoce la existencia y validez de las formas de conocimiento e innovación y la necesidad de protegerlas, mediante el uso de los mecanismos legales apropiados para cada caso específico" (art. 77); and (ii) "El Estado otorgará la protección indicada en el artículo anterior, entre otras formas, mediante [...] derechos de los agricultores" (art. 78). Another example is Bangladesh's draft Plant Varieties Act of 1998, which recognizes farmers' rights in article 22.

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