XV. Appendix F - Reservations from member nations to the resolution on the International code of conduct for plant germplasm collection and transfer
I. Reservation of Brazil
Brazil actively participated in the long negotiations leading to the final draft of the International Code of Conduct for Plant Germplasm Collection and Transfer. My delegation was generally supportive of the terms of the draft and recognized the importance of the Code in fostering the development of legal instruments on access and sharing of benefits, particularly in the short interim period pending the entry into force of the convention on biological diversity.
This being the case, the Brazilian delegation does not wish to create any obstacle to the adoption of the draft by the Conference. However, the text before us contains certain concepts and provisions which are not in line with the more recent evolution of internationally agreed documents on the subject. Therefore, as the Conference is about to adopt the voluntary Code of Conduct, Brazil feels bound to register its reservations to the text, as follows:
First: in disagreement with Article 15, paragraph 7, of the Convention on biological diversity, which stipulates that the sharing and development, as well as the benefits of its commercial utilization, should be carried out on a fair and equitable basis, the text of the Code of Conduct in Article 1, paragraph 7, restricts the concept of fair and equitable sharing of benefits, when it says: (quote) "by suggesting ways in which the users may pass on a share of benefits to donors ..."
Second: in Article 3.2 the Code states that "continued availability of plant genetic resources is a common concern of mankind", which goes beyond what was recognized by the Convention in its Article 15. At the same time the Code adds that "in executing these rights, access to plant genetic resources should not be unduly restricted", which constitutes a limitation of Article 15 of the Convention, recognizing the competence of governments in permitting access to genetic resources in accordance with their national law and subject to their previous agreement.
Third: in Article 4, the scope of the Code is defined as "to ensure that the collection, transfer and use of plant germplasm is carried out with the maximum benefit to the international community", rather than to the benefit of the providers, as would be expected in a post-UNCED document.
Fourth: in Articles 6 to 8, the process indicated for issuing, requesting and granting collect permits does not foresee agreement over the sharing of benefits. According to these articles, it is incumbent upon the country authority solely to "expeditiously" accept or deny authorization for the mission, when in fact conditions should he defined for the sharing of benefits derived from the mission.
Fifth: Articles 12 and 13 - responsibilities of sponsors and curators - deal specifically with "ex-situ" conservation, without referring to the proviso that "ex-situ" conservation should be undertaken preferably in the country of origin, as stated in Article 9 of the Convention.
Sixth: of particular concern to us is the drafting of Article 14 - Responsibilities of Users when it reads that "without prejudice to the concept of farmers"' rights (...) users of the germplasm should (...) consider providing some form of cooperation for the benefits derived from the use of germplasm". We believe that it is not a question of "considering compensation", but of mandatory benefit sharing, under agreed terms, with the country which provides the resources.
Seventh: as regards Articles 14 and 16, we find the prerogatives granted to the Commission of Plant Genetic Resources somewhat excessive. This applies in particular to the dispute settlement functions attributed to the Commission, as well as to the monitoring procedures envisaged.
Under these circumstances, my delegation requests that the Report of the Conference reflect the Brazilian reservations, as well as Brazil's position regarding the adoption of the text: had there been a vote, Brazil would have at least abstained.
II. Reservation of Colombia
The delegation of Colombia wishes to place on record, as it has in the various FAO fore which have discussed the draft International Code of Conduct for Plant Germplasm Collection and Transfer, that it accepts this Code to the extent that it is in keeping with the National Constitution of Colombia and with Colombian legislation on the subject.