Keeping free access to the world's plant genetic resources for food and agriculture

5th Contact Group Meeeting: 3 - 8 February 2001, Rome

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CALL FOR CIVIL SOCIETY ORGANISATIONS TO TAKE CLEAR POSITION IN THE IU NEGOTIATIONS

Observers will be accepted in the Governing Body meetings under new working as per CBD Article 23.4(j) "...Any other body or agency, whether governmental or non-governmental, qualified in fields relating to conservation and sustainable use of PGRFA, which has informed the Secretariat of its wish to be represented as an observer at a meeting of the (IU) Governing Body, may be admitted unless at least one third of the Members present object...". Update: (Saturday 10th February 2001): The Contact Group dissolved into various drafting groups Friday afternoon. By the end of the day, the plenary session had still not reconvened. Serious misunderstandings remained about how to include the CGIAR centre genebanks in the IU. Simple wording to prevent IPRs on PGRFA in the IU "Recipients shall not claim any intellectual property or other rights that limit the facilitated access to the PGRFA in the Multilateral System;" was seemingly impossible to agree. All is not lost (other than precious negotiating time) and the CG will reconvene in April. Maybe before then, political pressure from Ministers of Agriculture and Environment can be increased to ensure that negotiators have a clear mandate to secure an agreement in time for the Extraordinary Session of the Commission (CGRFA) in mid-2001. Update: (Thursday 8th February 2001): The Contact Group struggled to define the rules by which open access to the CGIAR centres' genebanks would be maintained. At present they are protected under the FAO-CGIAR Accord although it is unclear how much this limits options to seek IPRs on any genetic material derived from the base collections. The FAO-CGIAR Agreements, implemented in part through Material Transfer Agreements, require that the CGIAR Centres pass on the obligations concerning nonclaim of ownership and intellectual property rights over designated germplasm and related information, to subsequent recipients. However, a representative of the CGIAR declared that any "restrictions" imposed on the use of CGIAR-held materials could have tremendous ripple effects throughout world agriculture, because of the international spread of genetic material of the major food crops. For example, more than 75% of the developing world's total wheat area and about a third of its maize area are now devoted to growing CGIAR centre varieties. If by "restrictions" this means limiting the "freedom" to seek IPRs on derived material, then this would have grave consequences for the IU. The CGIAR Centre collections, and the genes they contain, must be in the IU and be kept in the public domain. On Thursday, the Contact Group will, at last, start to deal with the contentious issues in Article 13. In this article is a clause that deals with the scope of the IU Art.13.2 (d). The text currently reads: "[Recipients shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources [, or their genetic parts or components], for food and agriculture[, in the form] received [from the Multilateral System]]/[No plant varietal or patent protection will be sought by recipient Parties on the plant genetic resources for food and agriculture received under this Multilateral System]; " Consistent with the overall aim of the IU to ensure facilitated open access to all PGRFA, an acceptable unbracketed version of this text might read: "Recipients shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources, or their genetic parts or components, for food and agriculture received from the Multilateral System;" As GRAIN point out in their paper prepared for this meetingThe renegotiation of the International Undertaking on PGRFA - Some observations on the interface between the Multilateral System and IPRs: "It must be made clear that IPRs can under no circumstances be claimed by a Party or another recipient on the materials received from the Multilateral System, including any genetic parts and components isolated from such material. It must be emphasized that if the restriction is not extended to genetic parts and components, it will be entirely ineffectual and allow unlimited privatisation of material that is being shared through the System." We await the outcome of the deliberations... One ray of light emerged in the darkness of yesterday evening. A technical committee made progress in defining terms such as "germplasm", "genetic material" and "ex situ collection". They may yet achieve their high school biology grades! (See also yesterday's report by ENB: http://www.iisd.ca/linkages/vol09/enb09177e.html). Update: (Wednesday 7th February 2001): The Contact Group is wallowing in minutiae, but of some importance eventually, once the so-far-ignored contentious issues have been resolved. Of interest yesterday was the apparent consensus about the future legal status of the IU with as a legally-binding instrument linked to both the FAO and the CBD Observers will be accepted in the Governing Body meetings as per CBD Article 23.4(j) "...Any other body or agency, whether governmental or non-governmental, qualified in fields relating to conservation and sustainable use of biological diversity, which has informed the Secretariat of its wish to be represented as an observer at a meeting of the Conference of the Parties, may be admitted unless at least one third of the Parties present object...". Negotiators may start to tackle Article 12 "Coverage of the Multilateral System" this afternoon and will have to confront less than helpful wording on the CGIAR centre genebank collections that was tabled in Neuchatel in November. (See also ENB: http://www.iisd.ca/linkages/vol09/enb09176e.html). Update: (Tuesday 6th February 2001): The CG opened with a challenge from Louise Fresco, FAO/ADG Agriculture, who "highlighted a number of potential consequences should agreement not be reached, including: loss of credibility within the agricultural sector and within the larger UN system; increased tensions within international institutions and agreements, including the CBD, WTO and the Consultative Group for International Agricultural Research; difficulties in fully implementing the Global Plan of Action (GPA); and reversion to bilateral negotiations which could prove cumbersome and expensive." (Source ENB: http://www.iisd.ca/linkages/vol09/enb09175e.html). Gerbasi proposed an agenda order that starts with the Governing Body (Article 17), which was discussed on Monday and then Articles 18, 20 and 21, before Articles 12 and 13. The contentious Article 14 which includes Commercial Benefit Sharing will NOT be discussed at this meeting. CSOs will be offering the opportunity for their inclusion in the new Governing Body which could yet end up as a Protocol to the CBD. "A regional group requested that the IU be mutually reinforcing with regard to agriculture, environment and trade, and noted their willingness to consider the IU as a protocol to the CBD." (Source: ENB) Update: (Monday 5th February 2001): Gerbasi is continuing to take a tough line and will insist on keeping the negotiations on track. How will he deal with the reluctance of certain parties (and it is not just the USA and Australia) to embrace open access of all materials including those and their derivatives that have been patented or whose access is restricted through other IPRs and Plant Variety Protection systems? Maybe, just deal with less contentious Articles... but that will only paper over the cracks temporarily. Update: (Saturday 3rd February 2001): CAN COUNTRIES FACE UP TO THE GERBASI CHALLENGE - OR WILL THEY DESCEND INTO INTRA-REGIONAL FACTIONS? ... AND THE USA & FRIENDS - WILL THEY BE INVITED TO THE PARTY? CSOs ARE WATCHING... Ambassador Gerbasi made an effective intervention in the FAO Council last November and 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." CIVIL SOCIETY ORGANISATIONS MUST TAKE A CLEAR POSITION IN THE FINAL STAGES OF THE IU NEGOTIATIONS: Clear political commitment to complete the IU negotiations and its subsequent implementation The IU to be the predominant international agreement on plant genetic resources for food and agriculture (PGRFA) -- and as such to influence interpretation of WTO rules, where these conflict The exemption of PGRFA from all forms of intellectual property rights - meaning not only the intact material, but also the germplasm and genes it contains - once the IU comes into force An internationally-enforced obligation to implement Farmers' Rights in all countries Access arrangements to cover all the varieties of all the crops covered by the IU including those on farms, in research institutes, public and private collections &c, Legally-binding benefit-sharing from the use of any resources that are currently privatised, and a direct consumer-producer link through contributions from the food industry (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. Background Papers are available at: <www.ukabc.org/IU.htm> and <www.evb.ch/bd/food.htm>. Also see the GRAIN Seedling Article - "IU: Now or Never" <www.grain.org> (Draft available - Click Here) 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:food@evb.ch ) of the Berne Declaration in Switzerland.

A Call for Action on the International Undertaking on Plant Genetic Resources

Download "Call to Action" as PDF file

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:

• protect the rapidly eroding genetic resources which underpin global food security
• recognise the ongoing contributions of farmers and provide incentives
• keep PGRFA and the genes in them in the public domain, not permitting either patents or other IPRs such as UPOV convention on these resources. An IU defined in this way will be in harmony with the CBD and will respond to the demands of southern countries for the revision of the World Trade Organization's agreement on Trade Related aspects of Intellectual Property Rights (WTO/TRIPs) Article 27.3(b) to include widening of the scope of exclusions from patentability to cover all life forms (and their comonents) and for a sui generis system in which the conservation and sustainable use of biological diversity and the promotion of Farmers' Rights are fully taken into account.

The IU is the world’s 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 IU’s 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 IU’s 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:

• Multilateral access to these genetic resources for current and future generations, outlawing Intellectual Property claims on any of the material, the genes they contain or knowledge in the system;
• Benefits are linked to the commercial use of the resources for:
• Plant breeding - to produce seeds and other propagating material that will enhance food security
• Food - some contribution directly or indirectly from consumers to reflect the contribution that PGRFA has made to the food they eat
• Benefits to farmers are commensurate with and compensate them for their historical contribution to developing the resources for global food security
• Farmers’ Rights to save, use, exchange and sell seeds and other propagating material and, in the case of seeds and other material restricted by national law, the right to sell them in their customary manner and markets;
• Committed financing for the IU and for associated programmes such as the Leipzig Global Plan of Action.

We must convince all governments that it is in everyone's interests to complete the IU negotiations

Proposed Actions:

We invite NGOs, Farmers institutions and other Civil Society Organisations to:

• Adopt the Position Paper "Seeds for All"
• Circulate this Call to Action, the Position Paper "Seeds for All" and related information (e.g. GRAIN paper on the IU) to other interested NGOs
• Lobby both Agriculture and Environment Ministers to support the points raised in the Position Paper and urging them to find sufficient funds to enable rapid completion of the negotiations within a timeframe that allows its adoption by CBD/COP 6 (for detailed demands see: "Seeds for All" - A Position Paper on the International Undertaking)
• Follow the negotiations of the FAO/CGRFA and publicise these through email and websites in order to identify where pressure needs to be brought to bear
• Interest media in the importance of the IU, as a countervailing force to Patenting and GE, for protecting these resources for food security.

Contact:

Patrick Mulvany (mailto:Patrick_Mulvany@CompuServe.com) of the ITDG (Intermediate Technology Development Group) in the UK, or François Meienberg (mailto:food@evb.ch) of the Berne Declaration in Switzerland.

Also see:<www.ukabc.org/IU.htm>, <www.evb.ch/bd/food.htm> and <www.grain.org>.

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SEEDS for ALL

Download position paper "Seeds for All" as PDF file

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.

It would:

• assure global food security in the long term.
• reward the enormous contribution that farmers all over the world have made to the conservation and development of plant genetic resources, and ensure the continuity of this work in the future.
• give traditional knowledge the same status as scientific plant breeding.
• include the distinctive requirements of PGRFA in the Convention on Biological Diversity.
• conserve the enormous but rapidly decreasing diversity of PGRFA developed by farmers over centuries
• keep PGRFA in the Public Domain.

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.”

History

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

In general:

• We need a clear political statement for new and additional funding to implement the IU.
• We demand that serious, legally binding benefit sharing, in accordance with the CBD, is implemented in the IU.
• Because there are many lessons to be learned, the IU needs a mechanism for reviewing the agreement. With fixed reviews, the IU could be signed earlier, because some questions, which cannot be solved now, could be negotiated in the following years.
• The IU needs a strong, independent and open-ended Commission, with representation from Farmers' Groups and Civil Society Organisations, to control the implementation.
• No Patents or IPRs as defined in the UPOV system, should be taken out on the material, including the germplasm and the genes it contains, received through the multilateral agreement.
• An obligation to implement Farmers Rights in all countries.

Specifically:

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:

• does not provide international rules on Farmers’ Rights (the present draft still makes them subject to National legislation). Such rules should include the prohibition of any biological methods (e.g. Terminator Technologies) that prevent farmers from saving seeds.
• does not guarantee farmers their inalienable rights to save, use, exchange and sell seeds and other propagating material and, in the case of seeds and other material restricted by national law, the right to sell them in their customary manner and markets.

Timetable

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

Contacts:

Patrick Mulvany (mailto:Patrick_Mulvany@CompuServe.com) of the ITDG (Intermediate Technology Development Group) in the UK, and François Meienberg (mailto:food@evb.ch) of the Berne Declaration in Switzerland.

Also see:<www.ukabc.org/IU.htm>; <www.evb.ch/bd/food.htm> and Last Chance for an Open Access Regime? Paper by GRAIN.

(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.