INTERNATIONAL UNDERTAKING ON
PLANT GENETIC RESOURCES (IU)
Keeping free access to the world's plant genetic resources for food and agriculture
4th Contact Group
Meeeting: 13 - 18 November 2000, Neuchâtel
Update from Rome (Monday 20th November 2000):
GERBASI ACCLAIMED BY 27 COUNTRIES IN FAO COUNCIL
Ambassador Gerbasi made an effective intervention in the FAO Council and despite some of our worst fears, carried the day.
The report says: "The completion of the negotiations for the revision of the International Undertaking will result in a major, legally binding new international instrument, which will provide Governments with solutions to their specific needs in relation to plant genetic resources for food and agriculture, in harmony with the Convention on Biological Diversity, and with strong links to both the FAO and the Convention, thereby underwriting food security and sustainable development in all regions. "
He said: "I am convinced that if the political will exists, and it has to exist, this should be shown in a concrete and incontrovertible way. I am convinced that only ourselves, representatives of the agricultural sector, can find the appropriate solutions to the problems and aspirations of the agriculture sector. We also have to proceed rapidly. The only way to conclude our negotiations relatively rapidly will be through political commitment to conclude by a fixed date, not subject to more changes. Because of this, those countries that participate in the negotiation process need to send delegations at a sufficiently high political level that allows them to take decisions at the negotiating table itself."
He was supported by at least 27 countries whose interventions praised his conduct of the process and encouraged him to continue, with even more urgency. Negotiations in the Contact Group will continue in the new year, probably starting in February with the CGRFA meeting in April.
There is clear political commitment within the FAO. This now needs to be translated into political commitment in Capitals.
Our sincere thanks go to Amb. Gerbasi for his dedication, diplomacy and desire to see a successful conclusion to these vital negotiations.
ENB concluded as follows:
ALL ROADS LEAD TO ROME:
The fate of the IU now returns to Rome and the meeting of the FAO Council, which will review the Contact Groups progress. Originally envisioned as a one- or two-meeting process, many in the Contact Group hoped they add two more meetings to the slate to bring the negotiations to a close.
An Extraordinary Meeting of the CGRFA originally intended for late January is now beyond consideration, and others are setting their sites on the next meeting of the FAO Conference in November 2001.
The prolonged history of the negotiations begs the question: What are the incentives for countries within these negotiations? Some expressed fear that over the years the negotiating process may have lost sight of the original altruistic need to address food security, since questions continually arose as to how the IUs implementation would have an impact on national realities, such as federal systems and national IPR or access legislation.
Ultimate resolution of this process is a matter of political will. However, political will is often impelled by public concern, which in the case of the IU, has waned severely over the past six years. The negotiations of Kyoto Protocol to the Climate Change Convention and the Cartagena Protocol on Biosafety came to a successful ending amid waves of political urgency. The IU must generate a new wave of public concern at all levels if it is to come to its long-awaited conclusion.
Update from Neuchâtel (Thursday & Friday 16/17th November 2000):
SOWING DISCORD IN SWITZERLAND
Four countries in favour of WTO/TRIPs predominance are grinding the IU to dust. Despite the best efforts of the EU and G77 supported by Industry and CSOs, to keep negotiations alive, strong objections came from the usual quarters.
Four English-speaking industrialised countries from North America and the Antipodes have colluded to try and scupper negotiations. The IU is the only international agreement that will ensure the free flow of the plant genetic resources for food an agriculture, ensure that benefits from their use are equitably shared with the farmers who developed these resources and provide the bedrock of food security for future generations. This is now in jeopardy.
So poor was the performance in Neuchatel that Chair Gerbasi was heard to chide negotiators that they had had four meetings to get clarification on four articles and they hadn't been able to agree on even one of them. The only Article which remains uncontested by the negotiators is the poor text on Farmers' Rights - Article 15 - agreed at the 8th CGRFA in April 1999, that could limit rather than enhance these Rights. Not much to show for a few million dollars of negotiating effort.
It is a pity, to put it mildly, that countries did not agree to an extraordinary meeting of the CGRFA at this time, as proposed in Tehran. This would have increased pressure on the four dissenting countries whose antics would have become clearer to all members and the public at large - not just the long-suffering Contact Group members.
No one in the Contact Group or the CGRFA needs reminding of the importance of the IU to the international community. The Rio Process mandated FAO to bring the IU in harmony with the CBD. FAO Conferences have reiterated this commitment. CBD Parties have repeatedly called for a rapid conclusion of negotiations, most recently in May this year.
Are the four objecting countries so myopically obsessed with the dominance of WTO/TRIPs that they cannot hear the clamour for agreement, not even the call from the seed industry?
There will be time over Thanksgiving and Christmas, when their tables will be overflowing with a surfeit of food, for these four countries to reflect on their selfishness, greed and gluttony and to ask themselves why they are reluctant to share even a small part of these benefits with the world's peoples who provided them with this richness of diet.
The rest of the world should send an appropriate Seasonal Message dressed perhaps in Scrooge's Ghost of Christmas Future - a dystopia of famine and poverty - as a wake-up call to the citizens of these countries that they are implicated in this destructive enterprise.
Will Carnaval time in Brazil really revitalise the negotiating process? The FAO Council should encourage Amb. Gerbasi to continue with the negotiations but also lay down a final gauntlet that the CGRFA come up with agreed text of a legally-binding document at its next meeting in April 2001 ready for presentation to their next Council meeting later in June.
The clock is ticking but the batteries are running low.
After the hot house progress in Tehran, the icy winds blowing from Geneva to Neuchatel are dealing a bitter blow.
Update from Neuchâtel (Wednesday 15th November 2000):
WTO and WIPO came, colluded and confused. Delegates were little wiser. We have all known that the interpretation of the WTO rules is quite subjective and this was confirmed. WIPO confuses Traditional Knowledge protection, Access and Benefit Sharing with Biotech Patents and said that a meeting in early 2001 will consider, among other things "legislation to regulate ABS, protection of biotechnological inventions and a multilateral system for facilitating ABS which could address linkages to Article 14.2(d)(iv)." See ENB: http://www.iisd.ca/vol09/enb09165e.html.
The Conact Group meeting seems determined to filibuster its way through the week, using up valuable negotiating time in repetitive points trying to define what should be indefinable: the focus must be on trying to FREE UP the flow of PGRFA on which world food security depends and compensating and rewarding the millions of farm families throughout the world whose communities have contributed their knowledge and skills to filling the world's larder.
The IU should ensure that the genetic resources in the plant species that underpin the world's food security are barred from privatisation. It should also ensure that benefits from the use of these plants by the seed and food industries and ultimately consumers are equitably shared with farmers in Developing Countries.
Who is going to have the courage to push the delegates to agreeing an imaginative farmer-friendly IU that really does what both FAO and CBD conferences have called for? An IU that will: safeguard the world's PGRFA to ensure global food security; allow the free flow of these resources; implement Farmers' Rights; and ensure there is fair and equitable sharing of benefits from any commercial use of these resources [by the seed and food industries]?
Update from Neuchâtel (Tuesday 14th November 2000):
Things seem to be going worse, Tuesday... The contentious compromise text brokered in Tehran - 14.2(d)(iv) - that we were all concerned about has been objected to by 4 DEVELOPED countries - not as we might have expected by DEVELOPING countries unwilling to accept the concept of IPRs on PGRFA.
Something more than a WTO explanation is needed today - someone needs to communicate the overriding need for this instrument - the IU - to FACILITATE the free-flow of PGRFA not PRIVATISE it...
The world's seeds have been developed by farmers through open access and free exchange. In most countries in the South 90% of seeds are still saved on-farm and sourced locally. IPRs and Patents will impede this. And the more than half a million samples of crop, forage and agroforestry species <http://sgrp.cgiar.org/cgiar_geneticresources-germpla.htm> taken from farmers and held in Trust in the genebanks of the CGIAR institutes must also be safeguarded in the public domain - free of any form of privatisation. This is what the IU is about - not bickering over miniscule payments from patent and IPR royalties.
ENB reported yesterday from Neuchatel: <http://www.iisd.ca/vol09/enb09164e.html>
"ARTICLE 14.2(d)(iv): This provision addresses payment of royalties for materials accessed under the MS on which intellectual property rights (IPR) or commercial protection restrict further access. The provision had been agreed upon in principle in Tehran, subject to consultations by some developed countries in their capitals. Four developed countries noted that they could not accept the provision as it stands, for reasons including, inter alia: potential conflicts with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (e.g., discrimination against fields of technology and impairment of enjoyment of patent rights); confusion over the articles purpose (for royalty sharing, venture capital or compensation for material excluded from the MS); confusion over the meaning of "product" and "exploitation"; unresolved issues within Article 12 on the scope of the MS and Article 13 regarding access and IPR; concern over implementation of such a provision at the national level and the costs involved; potential contravention of Article 13 ensuring minimal costs for access and benefit-sharing; and relation to international agricultural research centers.
Two countries objected to arguments regarding potential conflicts with TRIPS, noting that: patent holders privileges would not be infringed upon; TRIPS has exceptions for discriminating against a field of technology; and TRIPS has an exception regarding plants and animals. One developing country noted that only in the case of a patent will benefit-sharing be mandated and royalties paid, and that only a few countries permitted patenting and thereby treat a plant variety as a product.
Several delegates requested clarification of issues relating to TRIPS by a representative of the World Trade Organization (WTO). Two countries noted that there are no fixed answers to these legal questions. Several developing countries remarked that participants have had ample time to consult and that reopening agreed language from Tehran posed a dangerous challenge. Chair Gerbasi urged those with reservations to avoid reopening debate, and expressed hope that the input of a WTO expert scheduled to address the group the following morning would resolve technical and legal confusion.
IN THE CORRIDORS The temperature in the room fell along with the snow outside, as delegates continued their third day of deliberations on Article 16, again circling around the question of developed country contributions and a funding mechanism. The room got even colder when a few countries noted their inability to accept a provision regarding commercial benefit-sharing and a package provisionally agreed upon in Tehran. All ears now await clarification by a WTO representative on legal questions regarding potential conflicts between TRIPS and the IU."
Update from Neuchâtel (Monday 13th November 2000):
Funding difficulties are creating a North-South divide. Some Developed countries do not seem to accept that implementation of activities and measures to ensure the conservation and free-flow of plant genetic resources for food and agriculture are 'necessary'! What price food security - or maybe that is seen simply as tradeable - not a Right?
"An observer stressed the importance of clearly funding the GPA and the IU with predictable and agreed as well as new and additional resources, given the importance of food as a basic human right. She highlighted the danger of relying on voluntary funds to secure such a right, and suggested that simply requiring voluntary or charitable contributions from the private sector could set a poor precedent." (Ref ENB http://www.iisd.ca/vol09/enb09163e.html)
The IU cannot be allowed to degenerate into a legally-binding collection of voluntary and charitable Articles subject to the whim of national governments and private companies. Beware what happened to Article 15 on Farmers' Rights (see draft negotiating text ftp://ext-ftp.fao.org/waicent/pub/cgrfa8/cg4/c4w2e.pdf)
(From ITDG Briefing Paper, October 2000)
Call to Action to Pressure Governments to Complete Negotiations on International Undertaking on Plant Genetic Resources (IU)
NGOs concerned with agricultural biodiversity and development, building on recent statements made at GFAR and COP5, are organising to pressure governments to come to an agreement on the International Undertaking in time for its presentation to CBD/COP 6. A position paper outlining the issues and Call to Action are available from The Berne Declaration and ITDG.
A direct lobby of relevant government departments and ministers will be part of the process to call for the rapid completion of negotiations on an International Undertaking, in harmony with the CBD, that would ensure PGRFA is kept in the public domain, a commitment of substantial resources to make the system function including benefits linked to the commercial use of the resources for plant breeding and food, and a strengthening of the IU's farmer-oriented elements.
We invite NGOs, Farmers institutions and other Civil Society Organisations to participate through circulating the Position Paper "Seeds for All" and the Call to Action to interested NGOs, lobbies of both Agriculture and Environment Ministers as well as the CGRFA, and increasing media interest in the importance of the IU, as a countervailing force to Patenting and GE, for protecting these resources for food security.
For more information or email copies of the paper, please contact: Patrick Mulvany (mailto:Patrick_Mulvany@CompuServe.com) of Intermediate Technology Development Group (ITDG) in the UK, or François Meienberg (mailto:email@example.com ) of the Berne Declaration in Switzerland.
The negotiations on the International Undertaking on Plant Genetic Resources (IU) are at a critical stage and need extra efforts to ensure they are completed in time for presentation to CBD/COP 6.
As public awareness of the implication of patents, corporate ownership of living organisms and genetic engineering becomes more sophisticated, the paradigm offered by the IU promises to be both inspirational and popular. It should be championed as a first, fundamental and practical step for a positive and more equitable system for sustaining life on this planet.
We would urge you to interest those working on TRIPs and GE issues to make the links with the IU negotiations, emphasising its importance for sustainable agriculture and as a model for keeping genetic resources in the public domain.
If we want to defend farmers interests and follow through our commitments made over the last two decades, not least in the 1996 NGO lobbies in Leipzig and elsewhere which promoted Farmers Rights, we have to work in favour of the rapid conclusion of the negotiations on the IU and its presentation as a legally-binding instrument to the CBD at its next Conference (COP 6) in 2002.
A lot of pressure must be brought to bear on governments to complete negotiations of an effective IU during the next twelve months. This will build on statements made by NGOs to governments at both the Global Forum on Agricultural Reasearch (GFAR), Dresden and the 5th Conference of the Parties to the Convention on Biological Diversity (CBD/COP 5) in Nairobi in May 2000(1). See "Seeds for All" an NGO Position Paper on the International Undertaking developed at these meetings. Farmers' organisations, research institutions and NGOs worldwide should work together to raise the political profile of the IU, to inform the media and to build up pressure for an effective and legally-binding IU.
A public campaign for an International Undertaking is needed
The International Undertaking is the principal international agreement that could:
The IU is the worlds best hope for providing protection for these vital resources against the spread of unsustainable agricultural technologies and practices. These pose a major threat to genetic resources for food and agriculture and the wider environment. The increasingly powerful trans-national Life Industry is making multi-billion investments in these technologies and inputs including genetic modification and is able to protect their investments through patents and Plant Variety Protection. The IU would go some way towards helping to protect PGRFA from this corporate threat.
If we want an effective International Undertaking there is a lot of work to do to convince governments that a rapid conclusion of these negotiations is necessary, that Farmers Rights must be recognised and that tangible and real benefits must be provided back to farmers so that their work in developing and sustaining these resources will continue.
Farmers, research institutions and NGOs worldwide should work together to make the IU a topic of public concern, to inform the media in order to build up political pressure for an effective IU.
While the IUs capacity to be a functioning part of international initiatives for defending plant genetic resources for food and agriculture and farmer practices, it will depend on the political and economic support of richer nations (defined by both their financial and germplasm reserves). The embodiment of the IUs principles within the context of the CBD will greatly enhance the exploration of innovative models of democratic and practical resource sharing.
The inclusion of these principles in the CBD will encourage a broader approach to sustaining agricultural biodiversity outside of the constraints of outmoded, commercial laws on IPR, which are based on, and more suited to, mechanical concepts of invention.
An International Undertaking, in harmony with the CBD would ensure:
We must convince all governments that it is in everyone's interests to complete the IU negotiations
We invite NGOs, Farmers institutions and other Civil Society Organisations to:
Patrick Mulvany (mailto:Patrick_Mulvany@CompuServe.com) of the ITDG (Intermediate Technology Development Group) in the UK, or François Meienberg (mailto:firstname.lastname@example.org) of the Berne Declaration in Switzerland.
A Position Paper on the International Undertaking on Plant Genetic Resources
A legally-binding International Undertaking on plant genetic resources (IU), linked to both the Food and Agriculture Organization (FAO) and Convention on Biological Diversity (CBD) is essential for global food security. It is the only agreement that could ensure the conservation and the sustainable use of plant genetic resources for food and agriculture (PGRFA), and the fair and equitable sharing of benefits back to farmers, arising from the use of these resources.
Because of the above and the interdependence on PGRFA between countries and the impossibility for bilateral tracking of origin and use of these resources, the IU is an indispensable instrument for these resources. NGOs are calling for the rapid conclusion to the negotiations on the International Undertaking.
We all benefit from the contribution that the diversity of PGRFA has made to food security, but the farmers who developed and sustain this diversity have received little recognition and no incentives.
The NGOs and Farmers' Organisations that participated in the Global Forum on Agricultural Research, held in Dresden in May 2000, adopted a statement which called, among other things, for 'the immediate completion of the International Undertaking', taking into account 'the contributions to the world's food system and the research needs of farming communities'.
At the same time, NGOs participating in the COP-V of the Convention on Bioogical Diversity in Nairobi issued similar calls: The Parties to the Convention must send a strong message to FAO to rapidly complete the harmonisation of the International Undertaking on Plant Genetic Resources with this Convention to include forceful Articles on Farmers Rights; a multilateral system of Access, outlawing proprietary ownership through patents and Plant Variety Protection of all designated materials and the genes they contain; and Benefit Sharing related to end use i.e. food security.
The 1983 voluntary IU is being renegotiated by countries through the FAO Commission on Genetic Resources for Food and Agriculture to bring into harmony with the Convention on Biological Diversity (CBD) as a legally-binding instrument. As such, it will necessarily contribute to the objectives of the CBD through its focus on the conservation and the sustainable use of PGRFA, and the fair and equitable sharing of benefits arising from the use of PGRFA.
But, given the distinctive nature, origin and problems of PGRFA and the farmers knowledge embodied in these, the IU will need to provide a framework which simultaneously permits free and facilitated access and exchange, through a multilateral system of access to the resources, and recognises and provides incentives to farmers and their communities for their historical and current contributions to the development of PGRFA, through the implementation of internationally recognised Farmers Rights.
For the last five years there have been ongoing negotiations to try to secure an international agreement on access to and use of the Plant Genetic Resources for Food and Agriculture (PGRFA), developed in farmers fields and stored in national, regional and international genebanks. The Intergovernmental Commission on Genetic Resources for Food and Agriculture (CGRFA), housed within the UN Food and Agriculture Organisation, is charged with leading these negotiations. The aim is to secure an International Undertaking (IU), adapted to be in harmony with the Convention on Biological Diversity (CBD).
During this time, the mandate and scope of these negotiations, as agreed by the FAO and supported by Decisions of the Conference of the Parties to the CBD (COP Decisions II/15, III/11, IV/6, V/9)(1) has been constantly questioned by some countries. The conflict is largely between those who wish to see farmers and other stakeholders have free multilateral rights of access to, and benefit sharing from, genetic resources they have developed and use to maintain food security; and those who support bilateral arrangements and the encroachment of intellectual property rights and law into these areas.
Demands for an IU that will make a difference
1. Legal Character
The IU should be a legally binding instrument adopted as a protocol to the CBD and under the auspices of the FAO. Where other existing international agreements are in conflict with the objectives of the IU and could cause damage or threat to PGRFA, the IU has to have precedence.
2. Coverage of the multilateral system of access and benefit-sharing
The multilateral system should cover all PGRFA, especially that which is of importance to food security in any specific locality. A clear demarcation between PGRFA and other genetic resources that are regulated under the CBD could be achieved by listing the species or genera that should be included in the IU.
3. Access and Benefit-Sharing and Financial Incentives
Access and benefit-sharing should be regulated within a multilateral system which is part of the IU.
Access to germplasm, facilitated through the multilateral system, would itself be a major benefit to all stakeholders. To do so, access has to be provided to all PGRFA, in situ and ex situ, acquired both before and after the coming into force of the CBD. To guarantee a facilitated access to all germplasm exchanged through the multilateral system, the material, germpalsm, genes and derivatives thereof, should be excluded from patenting and from IPRs like the UPOV system. If Access is facilitated in this way, future breeding work and Farmers' Rights will be supported.
Benefits should be shared through the fair and equitable sharing of the results of research and development, incentives and other public sector measures and the benefits arising from commercial utilisation of PGRFA for plant breeding and food. In addition, extra financial incentives could be secured through a global fund resourced from government grants and intergovernmental programmes.
These grants, income and revenues should be under the political control of the Conference of the Parties to the IU and be used to contribute to agreed plans and programmes to implement Farmers' Rights and to support PGRFA conservation and sustainable use (e.g. the Leipzig Global Plan of Action) in particular in developing countries.
4. Farmers' Rights
The Farmers' Rights are crucial for the conservation and development of PGRFA. The wording of the composite draft text, adopted by the eight regular session of the commission on genetic resources for food and agriculture (CGRFA, April 99) is as yet incomplete as it:
The CBD has reiterated its willingness to consider the renegotiated IU as a legally-binding instrument linked to FAO and the Convention, possibly as a Protocol. (Decisions III/11 and V/9). The CBD also calls upon " Parties to coordinate their positions in both forums." (Decision V/9). The timetable for achieving this before COP 6 in 2002 is tight and requires agreement of the finalised text at FAO's Council in November 2000, so that it can be discussed by SBSTTA 6 in 2001. An alternative timetable might be its adoption by the FAO Conference in November 2001 and its presentation directly by the FAO Conference to the CBD, as originally called for in CBD Decsison III/11. This still gives little negotiating time for completion - the pressure is on. Donor governments are therefore urged to find sufficient funds to enable rapid completion of the negotiations within this timeframe.
Position paper written by Patrick Mulvany (ITDG) and François Meienberg (Berne Declaration), June 2000. Grateful thanks to all who commented on the early drafts, especially Joyce Hambling, Pat Mooney, Dan Leskien, Henk Hobbelink, Peter Einarsson, Jan Boring, Christine von Wiezäcker and Kristin Dawkins
Patrick Mulvany (mailto:Patrick_Mulvany@CompuServe.com) of the ITDG (Intermediate Technology Development Group) in the UK, and François Meienberg (mailto:email@example.com) of the Berne Declaration in Switzerland.
(1) The landmark 1996 Buenos Aires COP Decision III/11 on the conservation and sustainable use of agricultural biodiversity echoes the three objectives of the CBD and contains paragraphs that include inter alia decisions on a multi-year Programme of Work to promote the positive and mitigate the negative impacts of agricultural practices on biological diversity in agro-ecosystems and their interface with other ecosystems and promote the objectives of the CBD with respect to genetic resources for food and agriculture. In Annex 1, it describes the problems and possibilities for agricultural biodiversity in different agricultural systems. The Decision also highlights the need to establish a relationship with WTO on matters concerning trade and agricultural biodiversity, and it encourages the FAO to complete the negotiations on the International Undertaking to be in harmony with the CBD.