By Catherine Saez
As the world struggles with a global food crisis, the Food and Agriculture Organisation of the United Nations (FAO) is working to support biodiversity as a way to contribute to food security.

To that end, the FAO has launched an initiative to ensure that this global genetic diversity is accessible, in the hopes that this will promote sustainable agriculture and increased food security.

The International Treaty on Plant Genetic Resources for Food and Agriculture, which addresses the need for diversity by promoting conservation and sustainable use of plant genetic resources for food and agriculture (PGRFA) and equitable sharing of benefits derived from their use, was adopted by the FAO Conference in November 2001 and it came into force in June 2004. As of mid-July, 118 countries, or contracting parties, had signed the accord, according to the website.

The treaty aims at collecting and sharing global plant genetic resources to sponsor genetic diversity and ensure food security. Its main components are: farmers’ rights, the multilateral system of access and benefit sharing, and a funding strategy.

Farmers’ Rights and Benefit Sharing

The treaty recognises the contribution of farmers to the diversity of crops. In Article 9, it describes a global system to provide farmers, plant breeders and scientists with access to plant genetic material and ensures that recipients share benefits they derive from the use of these genetic materials.

This also ensures that diverse genetic resources are not merely conserved, but also used to “improve yields and quality… to face plant diseases and climate change and meet evolving human needs.”

The treaty encourages contracting party governments to “as appropriate… take measures to protect and promote farmers’ rights,” including the right to participate in decision-making on plant genetic resources at the national level, the right to the protection of traditional knowledge, and the right to participate equitably in benefit-sharing. It also recognises that farmers may have the right to save, use, exchange and sell farm-saved seed, although this depends on action by national legislations, according to Shakeel Bhatti, executive secretary of the treaty.

The Multilateral System and Transfer of Genetic Resources

Under the treaty, contracting parties agree to make their genetic diversity and related information about the crops stored in their gene banks available to all. The tool for this is a multilateral system of access and benefit-sharing, which was implemented in 2007. During the first eight months of its existence, it was used to make 89,000 transfers of material, said Bhatti.

The system creates an online, searchable database of genetic resources contained in signatory countries’ gene banks. It applies to 64 major crops and forages (food crops for grazing animals, such as cattle), including rice, wheat, lentils, apples, sorghum and yams.

Materials included in the multilateral system are under the management and control of the contracting parties and mostly are in the public domain. However, some IP rights could remain on material voluntarily included in the system by their holders at the invitation of contracting parties.

According to the treaty, recipients of genetic materials shall not claim IP rights on plant genetic resources or their genetic parts, in the form they received them from the multilateral system. The treaty also makes allowances for access to genetic material still protected by IP laws, saying international IP regulations must be followed but that developing and least developed countries should be given favourable terms for access to sustainable technologies.

Should a recipient create another plant with some of the genetic materials obtained through the multilateral system, the contracting parties agree that benefits arising from its use must be shared fairly and equitably, especially those arising from commercialisation.

“The funds will go exclusively to the benefit of farmers in developing countries,” said Bhatti. Benefit sharing also is achieved through facilitated access to genetic material for all users, technology transfer for conservation, characterisation, evaluation and use of genetic resources, and capacity-building through scientific and technical education, and training in conservation and sustainable use.

Transfers of genetic materials are done through standard material transfer agreements (SMTAs) between providers and recipients. Access to genetic materials is only allowed for utilisation and conservation for research, breeding and training for food and agriculture. Neither chemical nor pharmaceutical uses are possible.

Breeders Reluctant to Use Multilateral System

The conditions under which materials are obtained through the multilateral system do not seem to meet breeders’ expectations, according to the International Seed Federation (ISF). With members in over 70 developed and developing countries, ISF says they represent a large majority of the world seed trade and plant breeders’ community.

Although the ISF said it “strongly supports the multilateral system and the principle of the standard material transfer” in a 2007 position paper, Bernard Le Buanec, senior advisor and secretary general of the organisation until December 2007, expressed concerned at the absence of a threshold of the level of incorporation of accessed material in the final product.

“When we integrate a genetic material in a research programme, we would like to pay royalties only from a certain percentage of the material used. If we fall below this percentage, we should be exempt of royalties,” Le Buanec said.

Another major problem, according to Le Buanec, is that there is no time limit on SMTAs. “Very few corporations are willing to commit for an infinite period of time,” he said, adding that there needs to be a clause in the SMTA allowing for termination of the contract. “The governing body will have to review it in future years,” he said, as private companies will not likely use the system as it is. To his knowledge, most SMTAs have been signed by universities or public corporations.

Breeders can share benefits arising from use of the multilateral system in two ways. If they choose not to patent a new seed variety they have created, then it is accessible to all, said Le Buanec, and represents a benefit in kind. “For us, this is benefit-sharing,” said Pierre Roger, senior IP attorney for Groupe Limagrain. If they patent their creation, then there will be a sharing of the commercial benefits.

NGOs Question Treaty Efficacy For Farmers’ Rights

For Philippe Cullet from the International Environmental Law Research Centre, the treaty does not fulfil the goal of strengthening farmers’ rights. The right to save, use and exchange stated in the treaty is “basically restating things which are so obvious that they should make policy makers blush,” he said. “It is a bit like saying that farmers have a right over the crops they have grown over their own land.”

According to Cullet, the problem is that the treaty does not preclude the introduction of “technology-use” agreements that would prevent, as a condition of sale, farmers from replanting second-generation seeds from a purchase.

GRAIN, an NGO promoting the sustainable management and use of agricultural biodiversity reported in November 2007 that some 30 farmers’ and other civil society organisations formally asked that the exchange of crop genetic materials be halted at a United Nations meeting on the treaty because they felt that governments were not meeting their obligations. Some farmers said that the treaty favoured multinational seed companies in giving them access to farmers’ seeds without reciprocal benefits, according to GRAIN.

Many unresolved tensions surround the treaty, according to Hope Shand from the non-governmental ETC Group, which was involved in the seven-year negotiations leading to the treaty.

“ETC Group believes that the treaty’s interpretation of farmers’ rights must be strengthened within the context of food sovereignty. Governments must commit money and energy into a long-term strategy for on-farm conservation and breeding,” she said.

The right to save, use and exchange seeds is a complex ground. In a declaration of civil society organisations present at the second meeting of the governing body of the treaty in November 2007, farmers tied their rights on reusing, conserving, protecting, exchanging and selling their seeds to their rights to freely access genetic resources to their contribution to the conservation and renewal of biodiversity, reported GRAIN. However, seed saving, conserving, and selling are forbidden in a number of countries that are signatories to the treaty. The civil society organisations said that it was the treaty’s responsibility to assist states to implement legislation that upholds these rights.

Noting in 2007 that “there is uncertainty in many countries as to how farmers’ rights can be implemented,” the governing body has adopted a resolution on farmers’ rights and initiated an information gathering exercise said Bhatti. A request has been issued to provide information on how farmers’ rights are implemented in individual countries and how those countries plan to proceed, he said.

Funding Strategy: the Norwegian Initiative

The funding of the treaty appears to be a trying operation, with monetary benefits from commercialisation of new varieties not expected for years, due to lengthy research processes and the apparent lack of government funding.

In March 2008, Norway announced that it intends to make an annual contribution to the benefit-sharing fund of the treaty. The contribution will amount to 0.1 percent of the value of all seeds that are sold through Norwegian agribusiness and bought by Norwegian farmers. Norway says that it is challenging other countries to make similar contributions.

Steve Suppan, from the Institute for Agriculture and Trade Policy, said that judging from listserv reports, the implementation of the treaty has been difficult partly due to lack of funding by the contracting parties.

Catherine Saez may be reached at csaez@ip-watch.ch.