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19. The International Treaty on Plant Genetic Resources
– Shakeel Bhatti45
Food and Agriculture Organization
I will be offering the perspective of intergovernmental organizations and
processes, with a focus on one intergovernmental process in particular, the International
Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). After a short
introduction about the international legal architecture that governs genetic resources and,
in particular, plant genetic resources, I will describe what has already been achieved in
the context of the international treaty, which is the creation of a multilaterally governed
gene pool of more than 1 million accessions of plant genetic material and which
constitutes a commons for biological materials. Next, I will discuss the steps that the
governing body of the treaty decided on in June of this year, which is developing policy
for the intangible elements of this global gene pool. Finally, I will end with a few
reflections on operationalizing such open knowledge environments as they are foreseen
in this treaty.
In the ITPGRFA you already find something resembling an integrated commons
linking both material and digital data and databases within a distributed and open access
framework. Furthermore, it has a larger framework in its federated network of gene banks
and of information portals that is now being established, which is being administered by a
governing body made up of the 121 contracting parties of the treaty.
With that in mind, let me begin by locating the treaty within the relevant
international legal instruments and institutional frameworks. First, is the Convention on
Biological Diversity (CBD). This international treaty creates a multilateral system of
access and benefit-sharing and implements those access and benefit-sharing principles on
a multilateral basis. As we heard, it takes about one or two years to negotiate a well-done
bilateral access agreement, and they must be negotiated on a case-by-case basis.
By contrast, under the ITPGRFA we have more than 600 transfers every day of
plant genetic material related to agriculture. It would be impossible to negotiate access
and benefit-sharing on a bilateral case-by-case basis for all of these transfers. Instead, the
multilateral system laid out by the international treaty provides a low-transaction-cost,
pooled commons of genetic material. Other components of the international governance
architecture include the 1961 International Union for the Protection of New Varieties of
Plants (UPOV); the 1994 Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS) and the various intellectual property agreements that are incorporated by
reference under the TRIPS standards, such as the Paris Convention; and the 1985
Budapest Treaty on Deposit of Microorganisms for Purposes of Patent Procedure. The
Consultative Group on International Agricultural Research (CGIAR) is not a legal
instrument, but rather the largest network of agricultural research centers and gene banks
of plant genetic resources in agriculture, and it plays an important role in the treaty.
The timeline leading up to the ITPGRFA can be traced back to the CBD, which
was adopted in 1992. In 1994, a request was transmitted to the Food and Agricultural
Organization (FAO) of the United Nations to revise a preexisting soft law instrument into
45
Presentation slides available at
http://sites.nationalacademies.org/xpedio/idcplg?IdcService=GET_FILE&dDocName=PGA_053725&Rev
isionSelectionMethod=Latest.
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a binding framework that would be in harmony with the access and benefit-sharing
principles of the CBD. The negotiations lasted for seven and a half years, and finally, in
2001, the treaty was adopted by the FAO Conference, coming into force in 2004. The
first governing body session under the treaty was held two years later, and within three
years following that session, 40 instruments of ratification were deposited.
Then, in 2006, two years after the ITPGFRA came into effect, the first session of
the governing body adopted the Standard Material Transfer Agreement (SMTA). It was
the fastest rate of ratification of an FAO-administered treaty in the history of FAO. The
SMTA is the standard contract for transferring genetic material within the multilateral
system. The third session of the governing body was held just a few months ago (in June
2009) in Tunisia, and the next session will be held in March 2011 in Bali.
Figure 19–1 offers a very simplified diagram illustrating how the multilateral
system of the treaty works.
Private
Voluntary
Sector
International Treaty Main Other
contributions
Operational Systems & (eg, NW, IT)
Mechanisms
1,1% of net sales
Benefit-
Multilateral System sharing fund
> 1.2 million > 440,000 transfers in
SMTA3
accessions first year (CGIAR
of genetic Priorities
alone)
R2
material
Criteria
SMTA2
Operational Procedures
priority:
R1
farmers in developing countries who
> 600 transfers every
SMTA1 day worldwide conserve and sustainably utilize
PGRFA
P
1 information
On-farm
sustainable use
exchange &
Others conservation
CP t ht f
Int’l Natural and
org legal person
FIGURE 19–1 The main operational systems and mechanisms of the International
Treaty on Plant Genetic Resources for Food and Agriculture.
SOURCE: United Nations Food and Agriculture Organization,
http://www.planttreaty.org/
In essence, the treaty creates a multilaterally governed gene pool. Genetic
material is put into that gene pool by various actors. These include the nations that have
ratified the treaty and also international organizations, such as the International Atomic
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Energy Agency, which has included its mutant germplasm repository in this gene pool
and is now also being governed by the terms of the treaty. Individuals and organizations
also contribute genetic material, including private sector entities and indigenous and local
communities, such as the Quechua communities from Peru, who deposited their own
germplasm into this gene pool. There is a broadening range of stakeholders who are
including material. A major contributor is the group of international agricultural research
centers of the CGIAR, which have so far deposited the bulk of material that we know of
and about which we have solid documentation.
Once material is included in the gene pool, its use is governed by a chain of
SMTAs. It begins with the provider of the material transferring it under a standard
material transfer agreement, call it SMTA1, to the recipient. This recipient can now
become a provider and transfer the material under a second agreement, SMTA2, to a
second recipient. By receiving the material under the SMTA, the recipient takes on an
obligation to transfer this material to other parties only under the same terms and
conditions specified in the original SMTA. This builds a contractual chain which
eventually leads—after a long series of transfers that, in plant breeding, often takes 5 to
10 years—to the development of a commercial product.
If that product is not available without restrictions for further research, training,
and breeding—for example, if the product is under a patent claim—then the SMTA
specifies that the recipient shall pay 1.1 percent minus 30 percent of net sales of that
product to the beneficiary fund of the ITPGRFA. This is a multilaterally created,
governed, and administered trust fund that receives proceeds from products that
incorporate material received from the gene pool. This beneficiary fund also receives
funding from a series of other channels, such as voluntary contributions from contracting
parties. A number of governments, including Norway, Spain, Italy, and Switzerland, have
given voluntary contributions. At the opening of the Svalbard Global Seed Vault in
Norway, Prime Minister Stoltenberg along the Minister of Agriculture at that time
announced that Norway will each year contribute 0.1 percent of all national seed sales to
the beneficiary fund of the treaty. Contributions also come from the private sector,
including philanthropic grant-making institutions, foundations, and individual
philanthropists.
The accumulated funds are dispersed according to multilaterally agreed-upon
funding priorities, selection criteria, and operational procedures. For example, the treaty
specifies a priority for funding to farmers in developing countries who conserve and
sustainably use plant genetic diversity. At the second session of the governing body, three
funding priorities were set by the governing body: on-farm conservation of plant genetic
diversity, information exchange and technology transfer, and sustainable use of plant
genetic resources, including through characterization, research, and participatory plant
breeding. These funding priorities are intended to further the conservation and
maintenance of genetic diversity, which in turn feeds the global gene pool that is
established by the treaty. In short, the treaty is intended to create a virtuous circle,
overseen by the governing body of the treaty. That governing body now includes 121
governments, with additional ratifications being underway at present.
The system started up in 2007, and since that time there have been more than 1.2
million accessions of plant genetic material that we know of. That last qualifier is
important because in reality there have certainly been far more accessions, but we do not
know of all the material that is included in the system. Getting complete and reliable
datasets specifying which material is included in the system is itself a major undertaking
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that is now under way. At present, we have data—again, incomplete data—that indicate
that in the last 12 months, there were about 440,000 transfers by the CGIAR alone. This
does not include transfers of material from regional and national gene banks. There is a
total of more than 600 transfers each day worldwide.
On the benefit-sharing side, in June of this year the benefit-sharing fund disbursed
half a million dollars in grants for the conservation of crop genetic diversity and the
sustainable use of genetic resources. The governing body has adopted an objective of
raising $160 million over the next 5 years for the benefit-sharing fund, with a planning
target of $50 million. It also adopted a strategic plan, which lays out the mobilization of
these resources over the next five years.
Operationally, we have almost completed the first phase of treaty implementation,
which consists of putting the multilateral system into operation, developing the Standard
Material Transfer Agreement, and starting up the commercial benefit-sharing activity
through the trust fund.
To provide a sense of how the commercial benefit-sharing is going, let me offer a
few details. The first call for proposals for benefit-sharing projects under the trust fund of
the treaty was solicited for one month starting in early December 2008. Within that
period, more than 450 applications were received. Keep in mind that this included the
Christmas–New Year period. The submissions were from countries around the world.
The treaty specifies three noncommercial benefit-sharing mechanisms: exchange
of information, technology transfer, and capacity building. Of these, the first two are
particularly relevant.
Concerning the exchange of information, the treaty states that access to plant
genetic resources that are protected by intellectual and other property rights shall be
consistent with the relevant international agreements and minimum standards for the
availability, exercise, and enforcement of intellectual property rights, and shall also be
consistent with relevant national laws. The treaty also states, however, that recipients
shall not claim any intellectual property rights or other rights that limit free access to
plant genetic resources for food and agriculture or to their genetic parts or components in
the form received from the multilateral system.
Thus, the treaty is consistent with international intellectual property (IP)
standards, but it sets out a particular model for acquisition of IP. Those terms are also
reflected, of course, in the Standard Material Transfer Agreement and are passed on
contractually to each recipient of genetic material from the gene pool. Then, if a recipient
commercializes a product that is itself a plant genetic resource and that incorporates
material from the multilateral system, and where such product is not available without
restriction to others for further research, training, and breeding, the treaty specifies that
the recipient shall pay 1.1 percent minus 30 percent of the sales of the commercialized
product into the trust fund established by the governing body for the purpose of benefit-
sharing.
There is, consequently, a patent-based, benefit-sharing trigger here. The treaty
also calls for the governing body to review the operation of this entire system and the
terms, for both access and benefit-sharing, five years after coming into force. It further
states that the governing body may review the levels of payment with a view to achieving
fair and equitable sharing of benefits and may also assess whether the mandatory
payment requirement in the material transfer agreement shall apply also in cases where
such commercialized products are available without restriction to others for further
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research and breeding. This exercise was originally scheduled to be done this year, but it
was postponed to the next session of the governing body.
Research results are also governed by the SMTA, which requires that the recipient
of material shall make available to the multilateral system—through a global information
system that will be created under the treaty—all non-confidential information that results
from research and development carried out on the material. The recipient is also
encouraged to share, through the multilateral system, any non-monetary benefits that
result from research and development. Finally, the SMTA provides that after the
expiration or abandonment of intellectual property rights, the product that incorporates
the material should be placed back into one of the collections that are part of the
multilateral system.
The next steps in the implementation of the treaty will include the implementation
of Article 17, which concerns a global information system for plant genetic resources.
This Article foresees that the contracting parties will develop a global information system
to facilitate the exchange of information on scientific, technical, and environmental
matters related to plant genetic resources, making information on plant genetic resources
for food and agriculture available to all contracting parties. Thus, in addition to the
material, which is pooled and governed by the terms of the multilateral system, the
system will also include an information component to facilitate the exchange of all the
data and information that results from the use and the exchange of material within the
gene pool.
In June of this year, the governing body requested the secretariat to develop a
vision paper that would take stock of existing information systems and outline a process
for developing this global information system. So the next phase is moving from the
tangible part of the system—the material—to the intangible, information-oriented side. A
number of provisions in the treaty will then be operationalized through this process,
including the two noncommercial benefit-sharing mechanisms, exchange of information
and technology transfer.
Concerning exchange of information, the treaty states that parties agree to make
available information that encompasses catalogues and inventories, as well as
information on technologies and all results of technical, scientific, and socioeconomic
research, including the characterization, evaluation, and utilization of the plant genetic
resources within the multilateral system. All this information will be included in this
information system.
With regard to technology transfer, the treaty specifies that parties facilitate
access to technologies for the use of plant genetic resources, recognizing that some
technologies can be transferred only in the form of genetic material itself. Again, the
applicable intellectual property standards must be respected.
The treaty then sets out a set of very specific measures for tech transfer
implementation, such as the establishment of crop-based thematic groups; the use of plant
genetic resources for food and agriculture; and various types of partnerships in research,
development, and commercial joint ventures. The transfer of technology must be
consistent with IP standards.
Figure 19–2 shows the ratifications and other measures of progress on the
international treaty over the past decade. The green line shows that the number of
SMTAs has really skyrocketed. Requests for capacity building have also increased
sharply. Given that we are working with 121 jurisdictions, which have different legal
frameworks, different languages, different institutional settings, different ministries
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responsible, different gene bank exchange practices, and different institutional actors, the
implementation of a global multilateral system that functions coherently is quite a
formidable task.
FIGURE 19–2 Progress on the international treaty.
SOURCE: United Nations Food and Agriculture Organization,
http://www.planttreaty.org/
Seen from the point of view of open knowledge environments, the treaty has
essentially established a global materials commons that is multilaterally managed. This
differentiates it from the bilateral access and benefit sharing regime under consideration
in the context of the CBD. The materials commons is now fully operational through the
globally applied Standard Material Transfer Agreement, and we have recently adopted a
dispute resolution procedure for any disagreements that might arise from these SMTAs.
There is a four-stage escalating alternative dispute resolution procedure that begins with
amicable negotiations and progresses through mediation, arbitration, and, finally, binding
arbitration under the International Chamber of Commerce.
By beginning of next year we will also have a global information infrastructure to
support the operation of this system consisting of a data store and a PID server, which
serves unique permanent identifiers (PIDs) for users of the multilateral system. The treaty
then calls for a global information system, a step on the path to an information commons
based on noncommercial benefit sharing in which the exchange of information itself is
considered to be a noncommercial benefit of the gene pool.
In moving towards that information commons, the treaty now has sustained
operational funding by governments plus an existing secretariat based in Rome and
housed in the FAO. The treaty’s governing body has become one of the main convening
forums of the plant genetic resource community. Furthermore, the treaty is increasingly
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being taken as a model by such institutions as the World Health Organization. We are
working closely with them to develop virus-sharing and benefit-sharing MTAs that will
be based on those provided for in the treaty.
The treaty still faces various challenges. Further operationalizing and stabilizing
the multilateral system is one. While the system has been successfully started, it is not yet
at the stage where it should be. Significant challenges and problems remain to be
addressed. For example, we need to focus on the project cycle for the benefit-sharing
fund and orient this towards facilitating scientific research on the plant genetic material in
the gene pool.
The treaty has a twofold nature, being both an intergovernmental political process
and an operational system. Maintaining policy and operational coherence within a daily
operation across so many countries and jurisdictions is a major task and requires a very
significant investment of resources.
We are running a capacity building program with Bioversity International, and we
are providing a great deal of assistance to countries working on their national
implementing legislation. It is also important to facilitate interactions between the
contracting parties who govern the system and the users of the system, that is, the gene
banks, the researchers, universities, companies, and so forth.
Finally, the treaty addresses access and benefit sharing for genetic resources
specifically in the context of agriculture. It is important to have the specificity of
agricultural genetic resources recognized in other policy forums, not only the CBD, but
also the United Nations Framework Convention on Climate Change and the various food
security efforts that are going on in the field.
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