27 The International Treaty on Plant Genetic Resources for Food and Agriculture

Dr. Aneesh V. Pillai

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Table of contents

1. Learning outcome

2. Introduction

3. Benefit sharing under the ITPGRFA

4. Multi-lateral system

4.1. Access under MLS

4.2. Benefit sharing under MLS

4.2.1.  Exchange of information

4.2.2.  Access to and transfer of technology

4.2.3.  Capacity building

4.2.4.  Sharing of monetary and other benefits of commercialisation

5. Conclusion

 

 

The access and benefit sharing envisaged under the ITPGRFA is entirely different from that under the CBD. One of the main objectives of CBD is to conserve and preserve PGR. But the main objectives of ITPGRFA are” the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention on Biological Diversity, for sustainable agriculture and food security.” So, conserving the PGRFA for further research and plant breeding is of paramount importance. However, there is an attempt at least to recognise some rights of the farmers in this Treaty.

This Treaty defines Farmers’ Rights in Article 9.1 thus:

“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 basisof 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:

  • Protection of traditional knowledge relevant to plant genetic resources for food and agriculture;
  • The right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and
  • 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 definition makes it clear that Farmers’ Rights is related only to the conservation and preservation of PGR. They are:-

  • Protection of TK
  • Equitable sharing of benefit
  • Participation in decision making. All these are obviously group rights.

Traditional knowledge, is held by group of people, and it is transferred from generation to generation. Quite obviously, it is not possible at all to identify a particular person who holds the TK. So, protection of TK relating to PGR is a group right.

3. Benefit Sharing under the ITPGRFA

Regarding the right to save, use, exchange, and sell the farm saved seed or the propagating material, the Treaty is not clear as to whether these rights are recognized. While on the one hand the Treaty says, “Affirming also that the rights recognized in this Treaty to save, use, exchange and sell farm-saved seed and other propagating material ,”, the Treaty in the context of recognizing farmers’ rights says only that “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 means that though the Preamble seems to recognize Farmers’ Rights, this right, when comes to the body part is subject to national law.

4. Multi Lateral system

Under the CBD, the system of benefit sharing was bilateral, and it was a dealing between the person/persons who seek access to the PGR, and the State directly. So, the State was required to ask the prior informed consent from the farmers (in the case of PGRFA), and to make arrangements for the equitable benefit sharing for them. But under the ITPGRFA, the system is, multilateral (MLS).

Access under the MLS

The Multilateral System covers the plant genetic resources for food and agriculture listed in Annex I, established according to criteria of food security and interdependence. The Multilateral System includes all plant genetic resources for food and agriculture listed in Annex I that are under the management and control of the Contracting Parties and in the public domain. With a view to achieving the fullest possible coverage of the Multilateral System, the Contracting Parties have to invite all other holders of the plant genetic resources for food and agriculture listed in Annex I to include these plant genetic resources for food and agriculture in the Multilateral System.

The access and benefit sharing is determined in the following terms:-

  • Access shall be provided solely for the purpose of utilization and conservation for research, breeding and training for food and agriculture, provided that such purpose does not include chemical, pharmaceutical and/or other non-food/feed industrial uses. In the case of multiple-use crops (food and non-food), their importance for food security should be the determinant for their inclusion in the Multilateral System and availability for facilitated access.
  • Access shall be accorded expeditiously, without the need to track individual accessions and free of charge, or, when a fee is charged, it shall not exceed the minimal cost involved
  • All available passport data and, subject to applicable law, any other associated available non-confidential descriptive information, shall be made available with the plant genetic resources for food and agriculture provided;
  • Recipients shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources for food and agriculture, or their genetic parts or components, in the form received from the Multilateral System;
  • Access to plant genetic resources for food and agriculture under development, including material being developed by farmers, shall be at the discretion of its developer, during the period of its development;
  • Access to plant genetic resources for food and agriculture protected by intellectual and other property rights shall be consistent with relevant international agreements, and with relevant national laws;
  • Plant genetic resources for food and agriculture accessed under the Multilateral System and conserved shall continue to be made available to the Multilateral System by the recipients of those plant genetic resources for food and agriculture under the terms of this Treaty and
  • Without prejudice to the other provisions under this Article, the Contracting Parties agree that access to plant genetic resources for food and agriculture found in in situ conditions will be provided according to national legislation or, in the absence of such legislation, in accordance with such standards as may be set by the Governing Body.”

Benefit Sharing under the MLS

 

 

It is interesting to note that The Contracting Parties recognize that facilitated access to plant genetic resources for food and agriculture which are included in the Multilateral System constitutes itself a major benefit of the Multilateral System. This is thus not a direct payment to the persons who contribute the PGR. Unlike under the CBD it is not a dealing between the State and those who access the PGR. Access is given to all PGR listed in Annexure I and benefit is given in some other way. Only sometimes in the form of money. This means that the farmers who conserved and preserved a particular PGR may not be directly benefited by giving access.

The benefits arising from the use, including commercial, of plant genetic resources for food and agriculture under the Multilateral System has to be shared fairly and equitably through the mechanisms of:-

  • The exchange of information,
  • Access to and transfer of technology,
  • Capacity-building, and the
  • Sharing of the benefits arising from commercialization,

Taking into account the priority activity areas in the rolling Global Plan of Action, under the guidance of the Governing Body.

Exchange of information

The Contracting Parties have to make available information like catalogues and inventories, information on technologies, results of technical, scientific and socio-economic research, including characterization, evaluation and utilization, regarding those plant genetic resources for food and agriculture under the Multilateral System. Such information has to be made available, where non-confidential, subject to applicable law and in accordance with national capabilities. Such information has to be made available to all Contracting Parties to this Treaty through the information system.

Access to and transfer of technology

  • The Contracting Parties has to provide and facilitate access to technologies for the conservation, characterization, evaluation and use of plant genetic resources for food and agriculture which are under the Multilateral System. Recognizing that some technologies can only be transferred through genetic material, the Contracting Parties shall provide and/or facilitate access to such technologies and genetic material which is under the Multilateral System and to improved varieties and genetic material developed through the use of plant genetic resources for food and agriculture under the Multilateral System, in conformity with the provisions of Article 12. Access to these technologies, improved varieties and genetic material shall be provided and/or facilitated, while respecting applicable property rights and access laws, and in accordance with national capabilities.
  • Access to and transfer of technology to countries, especially to developing countries and countries with economies in transition, shall be carried out through a set of measures, such as the establishment and maintenance of, and participation in, crop-based thematic groups on utilization of plant genetic resources for food and agriculture, all types of partnership in research and development and in commercial joint ventures relating to the material received, human resource development, and effective access to research facilities.
  • Access to and transfer of technology as referred to in (i) and (ii) above, including that protected by intellectual property rights, to developing countries that are Contracting Parties, in particular least developed countries, and countries with economies in transition, shall be provided and/or facilitated under fair and most favourable terms, in particular in the case of technologies for use in conservation 21 Part IV The multilateral system of access and benefit-sharing as well as technologies for the benefit of farmers in developing countries, especially in least developed countries, and countries with economies in transition, including on concessional and preferential terms where mutually agreed, inter alia, through partnerships in research and development under the Multilateral System. Such access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights.

Capacity-building

Contracting Parties have to give priority to:-

  • Establishing and/or strengthening programmes for scientific and technical education and training in conservation and sustainable use of plant genetic resources for food and agriculture,
  • Developing and strengthening facilities for conservation and sustainable use of plant genetic resources for food and agriculture, in particular in developing countries, and countries with economies in transition, and
  • Carrying out scientific research preferably, and where possible, in developing countries and countries with economies in transition, in cooperation with institutions of such countries, and developing capacity for such research in fields where they are needed.

Sharing of monetary and other benefits of commercialization

  • The Contracting Parties agree, under the Multilateral System, to take measures in order to achieve commercial benefit-sharing, through the involvement of the private and public sectors in activities identified under this Article, through partnerships and collaboration, including with the private sector in developing countries and countries with economies in transition, in research and technology development;
  • The Contracting Parties agree that the standard Material Transfer Agreement referred to in Article 12.4 shall include a requirement that a recipient who commercializes a product that is a plant genetic resource for food and agriculture and that incorporates material accessed from the Multilateral System, shall pay to the mechanism referred to in Article 19.3f, an equitable share of the benefits arising from the commercialization of that product, except whenever such a product is available without restriction to others for further research and breeding, in which case the recipient who commercializes shall be encouraged to make such payment. The Governing Body shall, at its first meeting, determine the level, form and manner of the payment, in line with commercial practice. The Governing Body may decide to establish different levels of payment for various categories of recipients who commercialize such products; it may also decide on the need to exempt from such payments small farmers in developing countries and in countries with economies in transition. The Governing Body may, from time to time, review the levels of payment with a view to achieving fair and equitable sharing of benefits, and it may also assess, within a period of five years from the entry into force of this Treaty, whether the mandatory payment requirement in the MTA shall apply also in cases where such commercialized products are available without restriction to others for further research and breeding.
  • Article 13.3 provides that the Contracting Parties agree that benefits arising from the use of plant genetic resources for food and agriculture that are shared under the Multilateral System should flow primarily, directly and indirectly, to farmers in all countries, especially in developing countries, and countries with economies in transition, who conserve and sustainably utilize plant genetic resource for food and agriculture.

4. Conclusion

Under this system, countries are in a position to access to all the PGRFA included in this system as per the rules of ITPGRFA. The Treaty’s truly innovative solution to access and benefit-sharing is its declaration that 64 of our most important crops – crops that together account for 80 percent of all human consumption. On ratifying the Treaty, countries agree to make their genetic diversity and related information about the crops stored in their gene banks available to all through the (MLS). This gives scientific institutions and private sector plant breeders the opportunity to work with, and potentially to By facilitating research, innovation and exchange of information without restrictions, this cuts down on the costly and time consuming need for breeders to negotiate contracts with individual gene banks. The Multilateral System sets up opportunities for developed countries with technical know-how to use their laboratories to build on what the farmers in developing countries have accomplished in their fields.

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Reference

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  • Raustiala, K. and Victor, D. (2003). The Regime Complex for Plant Genetic Resources. SSRN Electronic Journal.
  • Rose, Gregory. “International Law of Sustainable Agriculture in the 21st Century: The International Treaty on Plant Genetic Resources for Food and Agriculture,” Georgetown International Environmental Law Review vol. 15, no. 4 (2003): p. 583-632.
  • Gepts, P. 2006. Plant Genetic Resources Conservation and Utilization . Crop Sci. 46:2278-2292. doi:10.2135/cropsci2006.03.0169gas
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