COMMENTS ON COMPLIANCE
21 of the International Treaty on Plant Genetic Resources for Food and Agriculture requires the first meeting of the Governing Body to "consider and approve cooperative and effective procedures and operational mechanisms to promote compliance with the provisions of this Treaty and to address issues of non-compliance"
The Commission on Genetic Resources for Food and Agriculture, acting as Interim
Committee for the Treaty, was tasked, by Resolution 3/2001 of the Thirty-first
Session of the FAO Conference, with preparing this issue for the Governing Body.
At its first meeting, in October 2002, the Interim Committee requested the
Director General of the FAO to collect countries' views on compliance with the
Treaty and requested that the submissions of the countries be posted on the FAO
web-site (see report of the first meeting of the Interim Committee, paragraph
13). All comments received were posted on this web-page.
meeting of the Interim Committee in November 2004 reviewed document CGRFA/MIC-2/04/3,
Compilation and Analysis of Governments’ Views on Compliance with the
International Treaty on Plant Genetic Resources for Food and Agriculture,
which can be found at
http://www.fao.org/ag/cgrfa/docsic2.htm, and agreed that countries could
submit further views on compliance to the Secretariat for compilation and for
placing on the Commission’s web-site. The Interim Committee decided that the
issue of compliance should be forwarded to an Open-ended Working Group, to be
convened subject to the availability of extra-budgetary funds prior to being
submitted to the Governing Body, for consideration at its first session.
Circular State Letter of 3 February 2005 the Director General requested countries’ further views on compliance. Comments received to date are shown below. Comments from other countries will be added as and when they are received.
A Background Study Paper on “Compliance Building under the
International Treaty on Plant Genetic Resources for Food and Agriculture” is
also available. It can be found as Background Study Paper No.20 at
on compliance with the Treaty have been received from:
- Burkina Faso
- European Community
- Sierra Leone
- Syrian Arab Republic
- Trinidad and Tobago
- United Arab Emirates
- United States of America
- Viet Nam
El art. 21 del Tratado establece que las Partes en su primera reunión deberán examinar procedimientos de cooperación y mecanismos operacionales para promover la observancia del Tratado. En virtud de ello, durante primera reunión del Comité Interino para el Tratado sobre Recursos Fitogenéticos para la Alimentación y la Agricultura se decidió establecer un grupo de trabajo de composición abierta para examinar varios temas jurídicos, y entre ellos el tema de los procedimientos para promover el cumplimiento con el Tratado. A esos efectos, se solicita a los países que presenten sus opiniones sobre el cumplimiento con este Tratado y se ha preparado el documento CGRFA/MIC-1/02/7 en el cual se analizan los regímenes existentes en este momento para promover la observancia en otros tratados multilaterales.
Con los comentarios preliminares sobre el tema de cumplimiento del Tratado, la Argentina considera que deben enfatizarse aquellos aspectos relacionados con la creación de capacidades, la cooperación entre las Partes y el asesoramiento. Es necesario crear un sistema orientado hacia la facilitación de la observancia de las normas por parte de los Estados Partes del Tratado.
Teniendo en cuenta que el Tratado establece un sistema de acceso facilitado para ciertos cultivos con el fin de garantizar la seguridad alimentaria a nivel mundial, se considera que el régimen de observancia no debiera ser de tipo sancionatorio sino, por el contrario, uno de tipo simplificador y no-controversial.
En el caso de los países en desarrollo, la provisión de cooperación y asistencia técnica para promover la observancia del Tratado es fundamental.
Asimismo, con respecto a las cláusulas que se incluyan en los Acuerdos de Transferencia de Materiales, éstas deben regirse por las normas que regulan los contratos privados. En cada contrato en particular podrán preverse, sanciones por incumplimiento.
En este sentido será necesario prever mecanismos para asegurar que existan procedimientos adecuados para garantizar que se respete el objetivo del Tratado que es garantizar la seguridad alimentaria a través del uso autorizado del material genético. Si en algún caso no se respetara el objetivo del Tratado, y se diera un uso no autorizado al material, todos los Estados deberán cooperar para evitar que aquellos que dieran tal uso puedan continuar haciéndolo. En particular, el Estado donde funciona el organismo que recibe el material deberá procurar el cumplimiento del art. 12.3 del Tratado, facilitando la ejecución de las penas previstas en el contrato de transferencia de material e impidiendo que se le dé un uso diferente al previsto.
Para ello será necesario promover el establecimiento de normas nacionales de reconocimiento de sentencias que garanticen el respeto por las cláusulas establecidas en los Acuerdos de Transferencia de Materiales y permitan a las partes ejecutar las penalidades previstas en los mismos cuando exista un incumplimiento contractual. En efecto, el Tratado prevé que las partes deben garantizar la posibilidad de presentar un recurso, en consonancia con los requisitos jurisdiccionales aplicables, en virtud de sus sistemas jurídicos, en caso de que surjan controversias contractuales en el marco de tales acuerdos.
En síntesis, se considera que el Artículo 21 del Tratado debe implementarse reforzando los aspectos relacionados con la creación de capacidades, la cooperación entre las Partes, el intercambio de información y el asesoramiento mutuo con el fin de permitir a los países generar los marcos jurídicos adecuados para el cumplimiento del Tratado, así como los sistemas y procedimientos internos tendientes al cumplimiento de los Acuerdos de Transferencia de material.
Pursuant to paragraph 13 of the Report of the Interim Committee for the International Treaty on Plant Genetic Resources for Food and Agriculture (CGRFA-MIC-1/02/REP) and the Director-General's 23 June 2003 notice, Australia hereby submits its comments on compliance with the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).
Article 21 of the ITPGRFA states:
"The Governing Body shall, at its first meeting consider and approve cooperative and effective procedures and operational mechanisms to promote compliance with the provisions of this Treaty and to address issues of non-compliance. These procedures and mechanisms shall include monitoring, and offering advice or assistance, including legal advice or legal assistance, when needed, in particular to developing countries and countries with economies in transition."
In accordance with Article 21, Australia believes that the compliance regime should be facilitative, transparent, non-confrontational, non-judicial, forward orientated and non-binding. It should be proactive in order to prevent the occurrence of instances of non-compliance and matters of dispute.
Procedures designed to address the issue of non-compliance should fundamentally be removed from the dispute settlement procedures to ensure that they do not prejudice Article 22 relating to the settlement of disputes.
Fundamentally, the compliance regime should only address instances of non-compliance by the Parties to the ITPGRFA and not disputes arising between individuals over the terms of a Material Transfer Agreement (MTA). The available mechanisms for recourse concerning disputes over MTA's are outlined in Article 12.5.
The compliance regime should be principles based in accord with existing multilateral compliance mechanisms.
Principles and Elements of the Compliance Regime
The principles upon which the compliance regime should be based are:
The elements of the compliance regime mechanism should be:
- Cost effective
- Procedurally fair
The principles and elements reflect the underlying tenet of Article 21 which is to promote compliance with the provisions of the ITPGRFA in a cooperative framework.
Compliance Regime Structural Mechanism
The operative mechanism of the compliance regime could be a variety of structures in accord with existing multilateral agreements. The composition of the selected structure should originate from Parties elected by the Governing Body, not from independent experts. This would ensure the cooperative and facilitative tenet is paramount as each elected Party would adhere to their obligation to promote the ITPGRFA and the compliance thereof by all other Parties.
Compliance Regime Monitoring
The selected method of monitoring should be one that is not burdensome on the Parties in relation to resource commitments. Monitoring should take a format that enables the identification of opportunities for assistance with compliance, rather than identifying instances of non-compliance to be brought before the compliance regime structural mechanism to be dealt with as an instance of breach of obligations.
La République du Bénin a activement pris part aux différentes phases des discussions qui ont abouti à l'élaboration et l'adoption du Traité international sur les ressources phytogénétiques pour l'alimentation et l'agriculture. L'Institut national des recherches agricoles du Bénin (INRAB) a été présent à chacune des invitations de la FAO.
Le Gouvernement du Bénin a déjà élaboré les outils rélatifs à la ratification et à la signature dudit traité et les a soumis à l'Assemblée nationale pour son adoption.
Aussi voudrais-je vous confirmer que le Bénin n'au aucune objection particulière quant à l'application dudit traité.
This is with reference to your letter No: G/LE-69 of 3 March 2004 with regard to the comments on the International Treaty on Plant Resources for Food and Agriculture for the First Meeting of the Open-ended Expert Working Group. In this context, I am pleased to inform you that the 81st Session of the National Assembly of Bhutan has endorsed the International Treaty on Plant Genetic Resources for Food and Agriculture in August 2003.
II me plaît de vous traduire tout l'intérêt que mon pays porte pour le Traité international sur les ressources phytogénétiques pour l'alimentation et l'agriculture et le souhait de le voir entrer en vigueur dans les meilleurs délais. Le Burkina Faso après avoir activement pris part aux différentes négociations ayant abouti à l'adoption du Traité a très vite signifié son intérêt en signant ledit Traité le 9 novembre 2001.
Depuis lors, notre point focal ayant pris part à ces négociations, a organisé des ateliers de sensibilisation à l'adresse des départements ministériels directement ou indirectement impliqués dans la gestion des ressources phytogénétiques.
Le Conseil des Ministres du Burkina Faso a soumis à notre Assemblée Nationale un avant projet de loi en vue de permettre la ratification. Me référent à toutes ces actions, j'ai l'avantage de vous rassurer que des dispositions diligentes sont prises pour une ratification très prochaine dudit Traité.
Tout en poursuivant les processus de ratification selon les règles de mon pays, nous soulignons l'importance et l'impact des articles 22 dans son alinéa 22.3 (a) que nous rappellerons lors de notre ratification. Nous nous permettrons d'approcher nos juristes pour mieux appréhender l'article 12 particulièrement dans ses alinéas 12.3 (d) et (e).
Je tiens particulièrement à vous renouveler toute ma reconnaissance et tous mes remerciements à votre excellence et à travers vous le Directeur Général de la FAO, pour vos soutiens et appuis multiples qui ont permis à notre Représentant/Point focal de prendre part durant les sept (7) ans de négociations, aux différentes rencontres.
Canada is strongly supportive of efforts to develop a compliance procedure, particularly one focussed on promoting compliance (ie., reducing incidence of non-compliance).
As per article 21 of the Treaty, the objectives are to promote compliance with the provisions of this Treaty and to address issues of non-compliance in a cooperative and effective manner. The mechanism should be focussed on promoting compliance and providing advice and assistance to Parties experiencing difficulties in complying with their obligations.
While in the long term, Canada favours the creation of a standing committee, which should meet sufficiently frequently for compliance issues to be dealt with in an expeditious manner, we believe that initially we would benefit for a trial period where compliance issues would be dealt with as part of a permanent agenda item at the meeting of the Governing Body. This would allow Parties to consider and approve at the first meeting of the Governing Body an initial cooperative and effective procedure and operational mechanism to promote compliance as required by Article 21 of the Treaty while permitting Parties to gain experience and identify the best way to deal with issues of compliance in the future.
Canada considers that there isn’t sufficient time before the entry into force of the Treaty to negotiate a detailed compliance procedure. Parties could set up an interim mechanism, which could consist of an ad hoc working group of legal and technical experts on compliance that could meet during the meeting of the Governing Body, as required, and that would have a mandate to address issues of non-compliance referred to it by the Governing Body and also to develop recommendations for an appropriate compliance procedure and operational mechanism to be developed based on experience gained.
The composition of the ad hoc expert working group could be similar to the composition of the current membership of the Expert Group on the Terms of the Standard Material Transfer Agreement, although smaller (e.g. 12), to reflect an appropriate balance between developed and developing countries and countries with economies in transition, with each FAO region being represented. As the role of the working group is essentially to provide advice and expertise, members should have the necessary legal or technical expertise to contribute effectively to the work of the working group.
The Agriculture Research Centre, representing the Ministry of Agriculture and Agrarian Reform, and being the competent authority responsible for applied agricultural research and the exchange of the majority of plant genetic resources, especially with the International Agriculture Research Centres, will take a number of actions to promote compliance with the provisions of the International Treaty on Plant Genetic Resources for Food and Agriculture, signed by Egypt on 29 August 2002, as follows:
- Establish an special mechanism in the form of a committee comprising specialists in the field of plant genetic resources and their use in the various breeding programmes, to be provided with the necessary information on plant genetic resources, both indigenous and foreign, and their origins and uses according to the Treaty.
- Develop a protocol for the work of this committee as regards means to implement the Treaty, and dealings of the Committee with other parties relevant to plant genetic resources according to national legislation and international law, and establish necessary standards to promote compliance with the treaty and implement legislation on the exchange of material, both indigenous and foreign.
- The Committee will take required measure to promote compliance, and provide advice and guidance to concerned parties, and inform them of the provisions of the treaty to avoid violations and disputes.
- Strengthen institutional links between bodies concerned with the exchange of plant genetic resources, and to ensure communications and cooperation with relevant international organizations.
- Coordinate guidance and educational efforts as regards the compliance with the provisions of the treaty and its implementation.
- Establish continuous contacts with FAO Commission for Plant Genetic Resources for Food and Agriculture, and study its conclusions and recommendations with a view to their implementation in Egypt.
Many multilateral agreements have developed compliance mechanisms or are in the process of developing them. The EU´s submission draws on existing compliance mechanisms and those still under development. It highlights the key elements of these compliance mechanisms, identifies options and sets out the EU´s views on a number of important elements.
Parties to the International Treaty on Plant Genetic Resources for Food and Agriculture ("International Treaty") are obliged under international law to comply with their obligations under the Treaty. To assist Parties to meet these obligations the International Treaty includes a provision which states that "the Governing Body shall, at its first meeting, consider and approve cooperative and effective procedures and operational mechanisms to promote compliance with the provisions of this Treaty and to address issues of non-compliance. The procedures and mechanisms shall include monitoring, and offering advice or assistance, including legal advice or legal assistance, when needed, in particular to developing countries and countries with economies in transition." (Article 21 of the International Treaty).
In accordance with Article 21, the EU believes that the procedure should be non-adversarial, non-judicial, cooperative, transparent, effective and forward-looking. It should help to prevent the occurrence of disputes and cases of non-compliance.
Non-compliance procedures differ fundamentally from dispute settlement procedures and so should not prejudice the provision on settlement of disputes. In addition, it should be noted that the compliance procedures and mechanisms address non compliance by Parties with provisions of the International Treaty and not disputes arising between individuals over terms of a MTA.
Elements of a Compliance Procedure
The following elements are commonly found in compliance mechanisms:
- Size and composition of any committee established
- Function and mandate
- Actors entitled to raise compliance issues in the procedure
- Potential measures
- Sources of information
In addition, Article 21 states that the mechanisms and procedures shall include monitoring. These elements will be considered in more detail below:
The objective of the compliance regime of the International Treaty is to promote compliance with the provisions of this Treaty and to address issues of non-compliance (see Article 21).
B. Size and composition of any committee established
A Compliance Committee is usually established by a decision of the Conference of the Parties, in this case the Governing Body of the International Treaty. The Committee would administer the compliance regime. In establishing the Committee the following elements should be considered:
- Expertise of the members
- Capacity of the members
- Division of seats in the Committee
The EU favours a small (e.g. about 7 members) Committee composed of technical and legal experts who serve in their personal capacity. The mandate would provide for the terms of office and could include staggered terms to allow for continuity as well as the input of new thinking. The seats in the Committee should be divided on the basis of a formula that secures an equitable geographical representation of experts from different FAO regions. Consideration should be given to the role of IARCs within the Committee.
C. Function and mandate
The EU considers that the Governing Body would establish a standing Committee and provide its mandate. The Governing Body should also provide further policy guidance as and when appropriate. The Committee could:
- Examine individual cases of non-compliance as well as general compliance issues.
- Advise Parties and facilitate assistance to Parties experiencing difficulties, including follow up actions.
- Recommend or decide on measures.
- Report to the Governing Body on its activities.
There should also be procedural safeguards to ensure the proper functioning of a compliance mechanism, which could include:
- Parties concerned to be informed of the issue and allowed to make representations.
- Clear time-limits.
- Submissions to be supported by corroborating information.
- Exclusion of the basis of ill-founded or de-minimis cases.
- Openness and confidentiality rules.
The type and nature of the safeguard measures is closely related to the decision making function of the Committee, the range of measures that are available to the Committee and who is permitted to trigger the procedure. The more decision making power the Committee has the greater the importance of having effective safeguard measures.
D. Actors entitled to raise compliance issues in the procedure
This is a key element of any compliance regime: Who may initiate the process (often referred to as "triggering") and bring matters to the attention of the Committee?
With respect to individual cases of non-compliance, the following actors should be permitted to trigger the compliance procedure:
- Party to Party trigger
Consideration should be given to whether, and to what extent, other actors should be permitted to trigger the compliance procedure, for example:
- Submission by Secretariat
- Committee itself
E. Potential measures
A range of measures could be available to the Committee so that it can act quickly and flexibly taking into account such factors as the cause, type, degree, duration frequency of non-compliance: Examples of such measures are:
- Provision of advice
- Facilitation of technical, financial and legal assistance
- Request to concerned Party to develop an Action Plan to bring it back into compliance
Some compliance procedures include stronger measures such as issuance of cautions, declarations of non-compliance and, where necessary, partial or full suspension of specific rights and privileges of the Party concerned in accordance with international law. The need for stronger measures will be dependent on the type and nature of the provisions in the Treaty. In accordance with Article 21, we consider that the primary focus should be on supportive measures such as the facilitation of advice and assistance. Also, consideration should be given to who, i.e. the Committee or the Governing Body, should take measures.
F. Sources of information
Consideration should be given to the sources of information the Committee may take into account when considering cases of specific and general compliance. A wide range of sources of information are available e.g. information gained from monitoring; information may also be available from individuals or NGOs. The Committee should be able to draw on a wide range of information which it considers relevant, including information from a Party involved in a case of non-compliance.
Article 21 specifically states that the procedures and mechanisms shall include monitoring. Such monitoring could include, for example, national reporting and the monitoring of the consequences of action taken to resolve situations of non-compliance. The role of the IARCs should be considered.
Also, consideration should be given to the inclusion of a review clause to examine the effectiveness of the mechanism.
The Department of Agriculture & Cooperation in the Ministry of Agriculture, New Delhi is the nodal agency for implementation of the various provisions of the ITPGRFA and the Joint Secretary (Seeds) is the focal point. The Treaty is being implemented through National Bureau of Plant Genetic Resources, New Delhi. As mentioned under Article 21 of the ITPGRFA, the compliance procedures and mechanisms should be transparent, cooperative, non-judicial and non-punitive so as to achieve the goals of the Treaty.
India is also one of the seven countries for the establishing of the National Information Sharing Mechanism on the Implementation and Monitoring of the Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture, as enshrined under Article 14 of the Treaty. We are of the opinion that the Commission on Genetic Resources/FAO may provide special financial/technical assistance to the countries, especially in Asia and Africa, which are primary centres of origin in respect of certain crops.
We have following comments to offer in respect of compliance procedures to the Treaty as under:
- The objective of the compliance procedures should be to identify compliance difficulties, establish the cause of such difficulties and formulate responses and advise to correct the state of non-compliance.
- It should be different from a "dispute settlement procedure". The disputes between contracting parties of the ITPGRFA regarding access to particular PGRFA may arise. But this does not necessarily mean non-compliance.
- The special needs of the developing countries and diversity rich countries in particular should be identified. These could be guidance on specific issues like institutional support, development of suitable national policy guidelines on benefit sharing, farmer rights and IPR issues.
- The corrective measures like withdrawal of certain privileges to parties to non-compliance should be considered as last options. The non-compliance due to circumstances beyond the parties controls should be considered and advise to comply should be provided, before such measures are taken.
- The procedures should be transparent as far as possible, and voluntary in nature for confidence building among parties.
A brief report on the compliance measures is enclosed as annexure.
Pursuant to paragraph 45 -on the report of the interim committee for the International Treaty on Plant Genetic Resources for food and Agriculture, and the Director General's request for views from member states on compliance with the treaty, Kenya hereby submits its views as follows.
1. The contracting parties should identify a reference point known to the Governing Body for the implementation of this Treaty.
2. The Governing Body should use the instrument for compliance to assist contracting parties particularly developing countries and countries with economies in transition to comply to the Treaty through:
- Technical and legal advice
- Material and Institutional Support.
3. Developing countries and economies in transition should get special assistance to comply to certain elements of the Treaty e.g Farmers Rights, Benefit Sharing and IPR issues.
4. For clarity in compliance the terms used should be clearly defined to avoid different interpretations by parties.
5. The Governing Body should put in place a mechanism for monitoring compliance to assist in timely handling of non-compliance.
6. Transparency and tolerance should be the key to the Governing Body's, procedures and mechanisms, this will in return foster compliancy and confidence. It should be non-coercive, friendly and voluntary in nature.
7. Compliance Committee or Secretariat to remove the burden from the Governing Body. A compliance committee could be constituted to handle day to day issues arising from non-compliance. This could be constituted from parties representatives to the FAO.
8. The suspension of parties or withdrawal of certain privileges to parties due to non-compliance should be the last option to be thought of. This presupposes that non-compliance in due to circumstances beyond the parties' control who need assistance to comply.
1. The idea of establishing an open ended Expert Working Group to address, inter alia procedures to promote compliance with the treaty is being supported. This will assist developing countries to participate in establishing procedures to promote compliance.
2. For effective national enforcement, developing countries would require guidance from the FAO for the development of appropriate institutional framework, drafting of appropriate national laws and regulations and in capacity building.
The places of initial domestication of different crops are called "Centres of Origin", many of which are located in developing countries and are source of germplasm to develop new high yielding varieties adapted to biotic and a-biotic stresses. Since no nation has within its borders the desired spectrum of genetic resources, international collection and exchange occurs. Not all participants in this exchange, however, view the benefits as fairly balanced between donors and recipients. Another issue is that valuable genetic resources not yet collected and preserved may be endangered by land use change in some countries. Considering the importance of genetic resources, the FAO in 1983 adopted an undertaking for conservation of these resources to be exchanged openly and with a minimum restriction. On the other hand, the 1993 "Convention on Biological Diversity (CBD)" provides a framework for dealing with all biodiversity, re-cognizing that it is a subject to the jurisdiction of states which have a sovereign right to regulate access to it and to set the terms under which such access will be granted. Due to conflicts in two International Treaties, the FAO has adapted a new treaty on "Plant Genetic Resources for Food and Agriculture" in 2001. The new treaty will enter into force and govern the international exchange of designated crop genetic resources. It will also attempt to resolve longstanding issues over how the benefits derived from the use of genetic resources are shared. In order to proceed further, the FAO has constituted an Interim Committee, the meeting of which had held on 9-11 October, 2002.
Brief and Comments
International Treaty on Plant Genetic Resources for Food and Agriculture was adopted by the 31st Session of FAO Conference. The international treaty would facilitate the global plan of action for the Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture. The plan of action is a set of recommendations prepared from country reports and which mainly covers the following:
- Conservation of Plant Genetic Resources for Food Security.
- Sustainable Utilization of Genetic Resources.
- Fair and Equitable Sharing of Benefit Arising from Genetic Resources.
- Assistance of Countries and Institutions to Identify Priority of Action.
- Strengthen existing Programmes and Enhance Institutional Capacity.
Eighty countries have ratified this treaty for its implementation. Since Plant Genetic Resources are primary building blocks for the evaluation of high yielding, wider adaptability and superior traits crop varieties so great emphasis has been placed in this treaty on their conservation and sustainable use and capacity building of the organization concerned with conservation of genetic resources. Moreover, this agreement is going to be quite significant in managing and utilizing the Plant Genetic Resources held in genebank.
It is evident from the report that the objectives of the treaty would be supported by a number of initiates, such as plans to establish a global "Conservation Trust". The Trust would provide funds to help national government and institutions to develop an economically efficient and sustainable system for ex-situ conservation. An appeal has been made to all countries to ratify the treaty as soon as possible. This agreement is going to be quite significant in managing and utilizing the Plant Genetic Resources held in genebank. Due to importance of the FAO treaty on Plant Genetic Resources for Food and Agriculture in conservation and exchange on mutually agreed terms, the Government of Pakistan with approval of Cabinet has already deposited its "Instrument of Accession" to the treaty with the Director-General, FAO.
As regards to "Procedures and Mechanisms to promote Compliance with International Treaty on Plant Genetic Resources for Food and Agriculture", Romania supports the development of national, regional and global tools and legislation necessary for the implementation, enforcement and compliance with IT.
In this respect the following aspects would be considered:
- Establishment of a Compliance Committee aimed to promote compliance with IT, and to address non-compliance issues;
- development of guidelines on compliance with obligations under the Treaty, that would be focused on offering advice and/or technical, legal and financial assistance, when needed, in particular to developing countries and countries with economies in transition;
- monitoring on the implementation of the IT provisions by adopting a standardized reporting format;
- need for transparency and public access to information.
Actions to be undertaken at national level:
- capacity building including technical and financial support in order to maintain and develop institutions (i.e. National Genebank, Breeding Stations and Agricultural Research Institutes) involved in National Program on Plant Genetic Resources;
- designation of a national focal point responsible for coordination plant genetic resources activities;
- establishment of an institutional network to carry out enforcement activities;
- timely reporting on the implementation of obligations under Treaty, and evaluation of specific difficulties in compliance and adoption of measures aimed at improving compliance.
We have pleasure to observe that not only has Sierra Leone signed and ratified the Treaty but has also attended all meetings of the Commission in this respect. This indicates the very keen interest my country has in the Treaty.
However, as this is a new Treaty with no previous experience on matters relating to compliance we wish to make the following suggestions:
- Any relevant experiences relating to compliance in similar international treaties or Conventions already in force should be used with respect to resolving any issues on compliance involving the Treaty as they arise in future.
- That these measures be simple, flexible and not adversarial in nature.
- That parity between small and big countries; developed and developing countries, and these countries with economies in transition be guaranteed in the use of plant genetic materials for food and agriculture covered by this Treaty.
Switzerland welcomes the possibility to make comments on the application of the International Treaty (IT) with a view elaborating co-operative and effective procedures and operational mechanisms to promote compliance with the provisions of the IT and to address issues of non-compliance, pursuant to Article 21 of the Treaty.
Switzerland believes that the effective procedures and mechanisms for assessing and promoting compliance, preventing non-compliance, and restoring compliance are very important to achieve the objectives of the IT. Switzerland therefore welcomes and will actively support the elaboration of such procedures and mechanisms.
On the core elements and possible outcomes of such a regime, Switzerland has the following views:
A standing committee (the Compliance Committee) should be established by the Governing Body to guide the procedures and mechanisms related to compliance.
The Compliance Committee should consist in Government representatives with knowledge in the relevant sciences (legal, technical, public policy and management). It should be composed of members of all the FAO regional groups, in analogiam to the decision adopted at the first meeting of the CGRFA acting as the Interim Committee of the IT on the composition of the Expert Group on the terms of the Standard MTA.
Information is a key element for reviewing Contacting Parties' compliance with the IT. Therefore and effective and timely reporting systems should be periodical and in a standard form ensuring comparability of the reports.
The reports should be addressed to the Compliance Committee and contain information on the implementation by the Contracting Parties of the all legal obligations, including Art. 12.5. Consequently the assessment of the Compliance Committee should cover all the respective elements contained in the reports. On the other hand, the implementation of MTAs between providers and users of the plant genetic resources for food and agriculture shall not be subject to the compliance procedure but, pursuant to Art. 12.5, be dealt with under the national legal systems of the Contracting Parties concerned.
The Secretary of the Governing Body of the IT should also act as the Secretary of the Compliance Committee.
Apart from the information contained in the reports, the Compliance Committee should also consider questions on compliance based on information submitted by a Party with respect to itself or with respect to another Party.
Procedures and outcomes
On the basis of the reports, the Compliance Committee will have to assess whether a Party is in compliance with its obligations and, if compliance has not been demonstrated, trigger the compliance procedure.
The Party concerned should be entitled to participate fully in the process, but not in the elaboration and adoption of the decision.
The Compliance Committee may seek or receive relevant information from Parties, experts and/or competent IGOs and NGOs.
The Compliance Committee takes a decision on every case treated. The decision should state whether the Party concerned is in compliance or not. If a Party is found to be in no-compliance, the decision should include consequences and measures. Such consequences and measures should primarily be aimed at assisting the Party concerned to fulfill its obligations and come back into compliance. They should take into account the cause, type, degree and frequency of non-compliance.
The Compliance Committee should report to the Governing Body on its work, the cases treated and the decisions taken.
Based on the agreements signed by the IARCS and the other relevant international institutions with the Governing Body, the IARCs should also be subject to the compliance procedures and mechanisms. However, they may be adapted to take into account the specific status of the IARCs or the other relevant international institutions.
SYRIAN ARAB REPUBLIC
The Ministry of Agriculture and Agrarian Reform presents its compliments and refers to the Director-General's letter Ref. LE-67 concerning the "Effective Procedures and Operational Mechanisms to Promote Compliance with the Treaty on Plant Genetic Resources for Food and Agriculture".
We have the pleasure to inform you that the following measures and procedures have been undertaken:
- The Syrian Arab Republic undertakes legal procedures to ratify the Treaty and issuing related Presidential Decree.
- The Ministry of Agriculture and Agrarian Reform has prepared, in cooperation with FAO, a project on Formulation of a Legislation on Plant Genetic Resources. The draft legislation in in harmony with the International Treaty on Plant Genetic Resources and it will be endorsed after obtaining the necessary legal approval from the relevant units.
- The General Commission for Agricultural Research has been identified as a National Focal Point coordinating all issues related to the Plant Genetic Resources.
- The General Commission for Agricultural Research conducts campaigns to collect, assess, maintain and preserve Genetic Resources by both medium and deep cooling. Field activities to maintain the Genetic Resources in situ, and awareness campaigns for farmers to participate in managing these sites are also conducted.
- Additional administrative support has been given to carry out scientific activities related to Genetic Resources. From managerial point of view, the Department of Genetic Resources has been separated to act as an independent unit linked to the General Director of the General Commission for Scientific Agricultural Research aiming at activating and facilitating its tasks.
Through the International Treaty on Genetic Resources, our Ministry aims that FAO and donors work on the following:
- Provide appropriate technical training for staff working on Genetic Resources.
- Identify operational and efficient mechanisms aiming to provide the required technical assistance from the Governing Body of the Treaty.
Kindly accept our highest consideration.
TRINIDAD AND TOBAGO
The Government of Trinidad and Tobago supports unconditionally the provisions of Article 21 of the Treaty. To this end, the recommendations of the second meeting of the Interim Committee in November 2004, which decided that the issue of compliance should be forwarded to an Open-ended Working Group, is supported.
On the issue of compliance with the Treaty, the Government is of the view that particular attention should be paid to Article 13, which specifies benefit sharing in the Multilateral System with regard to:
- Exchange of information;
- Access and transfer of technology;
- Capacity building;
- Sharing monetary and other benefits of commercialization.
Trinidad and Tobago further recommends that non-compliance with the Treaty should be treated according to Article 21, where the mechanism for compliance includes offering advice and assistance particularly in the case of developing countries with economies in transition.
In view of these considerations, Trinidad and Tobago wishes to suggest that the Open-ended Working Group consider the establishment of a Transaction and Resolution Expert Committee to guide contracting parties within the framework of the Treaty.
UNITED ARAB EMIRATES
1. The Commission on Genetic Resources, represented by FAO, shall develop training plans for personnel in the relevant ministries and institutes who are entrusted with the management and protection of genetic resources for food security and sustainable agriculture. The purpose would be to explain the objectives of the Treaty and technical and scientific aspects for its implementation, and introduce them to all crops designated genetic resources and ways to manage and conserve these crops, prevent their deterioration and their uses in agriculture.
2. FAO shall provide member countries, in particular developing countries, with expertise and assistance to determine crops designated genetic resources for agriculture.
3. The Commission, represented by FAO, shall require signatory countries to submit initial reports- as country reports- on crops designated as genetic resources on the basis of surveys, and a synthesis of such reports to be distributed to signatory countries for use by plant breeders in these countries.
4. Ensure transparency between the Commission and signatories to the Treaty, and compliance requirements should be simple, flexible, easy to implement and removed from the traditional approach based on the imposition of penalties on states that do not comply with the Treaty. Instead, the Commission should provide advice and assistance to these states with the view of promoting compliance with the Treaty.
5. The Commission shall, in its first meeting, verify those countries that failed to comply with the Treaty, and to examine the reasons for non-compliance, its scope and frequency. The Commission shall, however, assist these countries to overcome obstacles in this respect, and thus ensure compliance with the Treaty as required.
UNITED STATES OF AMERICA
Pursuant to paragraph 13 of the Report of the Interim Committee for the International Treaty on Plant Genetic Resources for Food and Agriculture (CGRFA-MIC-1/02/REP) and the Director General's 23 June 2003 notice, the United States hereby submits its views on compliance with the International Treaty on Plant Genetic Resources for Food and Agriculture. (IT-PGRFA).
Article 21 of the IT-PGRFA states: "The Governing Body shall, at its first meeting, consider and approve cooperative and effective procedures and operational mechanisms to promote compliance with the provisions of this Treaty and to address issues of non-compliance. These procedures and mechanisms shall include monitoring, and offering advice or assistance, including legal advice or legal assistance, when needed, in particular to developing countries and countries with economies in transition."
The compliance procedures and mechanisms should be cooperative and non-confrontational. United States supports non-confrontational compliance procedures and mechanisms focused on promoting compliance and assisting any Parties experiencing difficulties meeting their obligations. The procedures and mechanisms should be simple, flexible and primarily facilitative in nature. This view is in line with Article 21, whose textual focus is on the cooperative side of avoiding and addressing compliance problems. A confrontational, quasi-judicial regime that makes "determinations" of non-compliance would be inconsistent with this mandate. Moreover, there are separate procedures available for Parties that seek a judicial process. They may pursue dispute settlement under Article 22.
The focus of the compliance procedures and mechanisms should be on offering advice and assistance. While, as noted below, Parties should have taken the necessary steps to be in compliance before ratifying the Treaty, it is possible that unexpected situations might arise leading to non-compliance with a particular Treaty provision. Assistance to address such situations is what is envisioned by the reference in Article 21 to developing a "cooperative" compliance system that "promotes" compliance by offering "advice or assistance, including legal advice or assistance.
They should not be punitive. Consistent with the overall compliance promoting focus of Article 21, it would be inappropriate for the mechanisms and procedures to take or recommend punitive actions against parties perceived to be in non-compliance. As a legal matter, only the Governing Body, and not a sub-entity, has legal authority to respond to a Party in material breach of the agreement, as provided in Article 60 of the Vienna Convention on the Law of Treaties. Furthermore, even recommending punitive measures to the Governing Body would be inconsistent with the mandate of Article 21 and would be counter-productive to the goal of promoting compliance.
Procedures and mechanisms should suit the unique needs of the Treaty. The compliance procedures and mechanisms must be designed to fit the specific needs and unique features of the IT-PGRFA. Although elements from other regimes (environmental and/or non-environmental) may ultimately be adapted for IT-PGRFA purposes, a wholesale adoption of a regime from a separate agreement is not appropriate.
Transparency is essential. The procedures and mechanisms should be as transparent as possible. Transparency is likely to foster compliance, as well as confidence on the part of both Parties and the public that the compliance process is credible, fair and effective.
Compliance procedures and mechanisms should not be developed in a vacuum. Rather, they should respond to the actual compliance problems Parties are facing. Although the first meeting of the Governing Body might choose to approve initial limited procedures and mechanisms to promote compliance, it would be advisable to wait until we have a better understanding of the actual compliance problems faced by Parties in the first years of Treaty implementation. Then, more extensive procedures and mechanisms could be developed if needed to specifically address real compliance issues.
Compliance procedures and mechanisms must be cost-effective. Given the limited budget and secretariat resources available, the Contracting Parties need to be mindful about the possible costs in creating any new standing, permanent treaty bodies and instead should handle compliance on an ad hoc basis. It is important to consider whether the money to be spent on particular procedures or mechanisms more productively could be spent on other mechanisms or activities that would efficiently and directly advance Treaty compliance and other objectives.
Countries should ensure that they have the domestic authority to comply prior to becoming Parties to IT-PGRFA. As noted in both the UNEP Guidelines on Compliance and Enforcement and the recently adopted ECE Guidelines on the same topic, it is vital that States only join a treaty, including this one, once they have ensured that all the necessary domestic laws and institutions are in place to be in compliance once they join. Thus, the compliance procedures and mechanisms should not be viewed as a substitute for countries' development of their own domestic authority, rather it should be viewed as a tool in helping Parties respond to compliance issues that may arise once their initial domestic authority has been obtained.
There should be no differentiation within the compliance procedures and mechanisms. The compliance procedures and mechanisms should apply equally to all Parties to the Treaty. The Treaty does not differentiate among categories of Parties with respect to the core control obligations, and the compliance mechanism should not do so either. Indeed there is no treaty basis providing otherwise, and the compliance regime should be designed to support the Treaty's basic design, not alter it.