Road to expand int’l access to plant genetic resources rocky

Genetic resources 5

8 May 2024, Geneva (TWN) – The road to set up a global access and benefit sharing system for plant genetic resources related to food and agriculture remains rocky.

The Ad Hoc Open-Ended Working Group to Enhance the Functioning of the Multilateral System (the Working Group) of the International Treaty on Plant Genetic Resources on Food and Agriculture (the Treaty) met in April for the 11th time.  It adopted a report that “supported generally” to expand the coverage of the Multilateral System (MLS) of the Treaty “with relevant safeguards” to “all” plant genetic resources for food and agriculture (PGRFA).

However, even as the Working Group adopted that conclusion, it is not a done deal – several Regions, civil society and farmer organizations expressed concerns about the different aspects of the proposed expansion and the governance of the MLS.

The 11th meeting of the Working Group took place at the FAO Headquarters in Rome, from 16 to 18 April. India and Australia are the Co-Chairs. This was its second meeting after work resumed in 2022 post Covid-19.

Although the expansion is only for PGRFA, on the face of it, the process is on a slippery slope, where the expansion could end up covering virtually all the plant genetic resources of a given Contracting Party to the Treaty, especially developing country Parties.

The MLS is established under Article 10 of the Treaty to facilitate access to PGRFA and to share, in a fair and equitable way, the benefits arising from the utilisation of these resources, on a complementary and mutually reinforcing basis.

The next step is a notification to be issued inviting regions, all Contracting Parties, and relevant stakeholders to provide written submissions on elements of the “June 2019 draft package” other than the three “hotspots” by end of May 2024. The hotspots are the issues most hard to resolve because Parties have quite strong divergent views on them.

The June 2019 draft package is the outcome of several meetings of the Working Group up until June 2019 before the Covid-19 disruption, and contains a draft resolution, amended Annex 1 (list of covered PGRFA) and revised standard material transfer agreement to be signed while accessing PGRFA available under the MLS.

The Co-Chairs plan to finalise their proposal for a draft package of measures in July 2024 with the aim of having it available in all UN languages six weeks before the 12th meeting.

Expansion of the PGRFA covered by the MLS is one among the three hotspots. The other two are Digital Sequence Information (DSI)/Genetic Sequence Data (GSD) of PGRFA and the benefit sharing payment structures and rates. Interestingly the Co-Chairs have opted to avoid getting written submissions on these issues from the Contracting Parties.

As part of the decision, the members of the Working Group have been encouraged to coordinate within their Region, conduct stakeholder consultations and gather information “of possible Contracting Party exemptions to the expansion of Annex 1”. This means the Co-Chairs have decided to go with the June 2019 package content on the expansion of Annex 1, which calls for expansion of the MLS scope to “all PGRFA”, while allowing for a limited number of exceptions which countries can make on certain species that are native to them, without affecting the scope of the MLS as such.

The report of the 11th meeting states accordingly: “On the expansion of Annex I, the Working Group generally supported an expansion of the list contained in Annex I, as one element of the package of measures, with relevant safeguards. The Working Group considered that the amendment text contained in the “June 2019 draft package” was a compromise linked to compromises on other elements of that package. The Working Group agreed to continue to work towards an expansion covering all plant genetic resources for food and agriculture, under the condition that robust safeguards could be included in a manner that would address the concerns of all Regions.”

The report further states: “Accordingly, the Working Group agreed to focus its work on further elaborating the safeguards, including for Contracting Parties at national level. The Working Group also considered that discussions will be needed to address concerns about a clear understanding of the term “all plant genetic resources for food and agriculture”, especially in the case of an expansion to all PGRFA”.  (Emphasis added.)

The phrase “all other plant genetic resources for food and agriculture”, as used in the June 2019 package was highly contested and several members sought clarity on this phrase.

The June 2019 package on expansion of Annex I reads thus: “In furtherance of the objectives and scope of this Treaty, in accordance with Article 3 of  this Treaty, and without prejudice to Article 12.3 h of this Treaty, the Multilateral System shall,  in addition to the Food Crops and Forages listed above, cover all other plant genetic resources for food and agriculture, including those plant genetic resources for food and agriculture  previously excepted or excluded in the list above, that are under the management and control of  the Contracting Parties and in the public domain and that are found in ex situ conditions”. (Emphasis added.)

Farmers’ organisations told the Working Group they are not ready for the expansion of Annex I to “all PGRFA”. The developing country Contracting Parties sought clarification on the phrase and what it includes. Developed country Parties and the Working Group Co-Chairs indicated that they are talking about the PGRFA found within the national ex situ collections of the Contracting Parties, and not necessarily “all PGRFA”.

Civil society representatives pointed out to the “non-exhaustive” nature of the definition and indicated that the 2019 package is not clear considering the various perspectives existing among the members about the paragraph.

Amidst these discussions, the Working Group Co-Chairs plan to expand the coverage of the MLS to all PGRFA on the basis of the 2019 suggestion. However, the Working Group noted that it would not be possible for “some Contracting Parties” to agree to the expansion of Annex I to “all” PGRFA “without the safeguards”.

A delegate representing farmers’ organisations said that even if the language was improved to only refer to national ex situ collections, the plan to expand is a concern as often peasants’ seeds end up in national collections of the governments without the free, prior and informed consent of the peasants who developed such seeds. Farmers want safeguards against such acts before adopting an expanded list, the delegate argued.

Lack of clarity over safeguards

As the working group Co-Chairs chose to make the June 2019 draft package the starting point of the work, the safeguard already provided therein is a closed negative list. At the time of ratification of the amendment to Annex 1, Contracting Parties are allowed to make a negative list of native species, meaning species which the country will not make available using the terms and conditions of the MLS.

However, a Contracting Party is not allowed to add new species or new PGRFA into this list at any point in time later than its ratification of the amendment. Also, the Party is under a commitment to reduce the negative list stage by stage.

Thus, the negative list will not affect the ability of the other Parties to share the same species originating in their countries. The June 2019 draft package is not clear about the status of PGRFA belonging to a native species excluded by country A, but already available in the national collection or in the collections of Article 15 institutions.

[Under Article 15 of the Treaty, international agricultural research centres of the Consultative Group on International Agricultural Research (CGIAR) holding collections of crop germplasm have signed agreements with the Governing Body, in order to make the collections available worldwide under the Multilateral System and benefit from financial and technical assistance for maintenance and improvement of the collections.]

Noting all these inadequacies of the safeguard in general, the Africa Region, Near East Region, certain Members of the Asia Region, and farmers’ organisations proposed counter proposals. The Africa Region said it would like to have an amendment which only adds specified plant genetic resources to Annex I, in line with requirements of the Nagoya Protocol, which says specialised international access and benefit sharing instruments can be created for specific genetic resources for specified purposes.

[The Nagoya Protocol of the Convention on Biological Diversity provides that Parties can develop a specialised international access and benefit sharing instrument for specific genetic resources under Paragraph 4 of Article 4. The MLS of the Treaty has historically sought this status, although such a status is still contested.]

The Near East Region and certain Members of the Asia Region called for progressive expansion of the list stage by stage.

Civil society representatives in the Working Group expressed the need for the negative list to be open such that Parties are allowed to add additional species or PGRFA to the list at later stages after ratification as well.

They also raised the importance of measures relating to accountability and transparency of the MLS, to avoid possible leakage of PGRFA resources for non-Treaty purposes, as important safeguard and trust building measure to encourage Parties to notify more and more PGRFA to the Treaty.

The Co-Chairs however made their decision very clear to the Working Group that they will continue work with the negative list idea while developing their proposed package. A developing country delegate told Third World Network that “Although this is not a barrier to members of the Working Group to suggest other safeguards or alternative proposals, this agenda setting decision could have significant impact on the future negotiations. In fact, it has been prejudicial”.

At the instance of the North America Region supported by the Group of Latin America and the Caribbean (GRULAC), the Members of the Working Group are also encouraged to coordinate within their region, conduct stakeholder consultations and gather information “of possible Contracting Party exemptions to the expansion of Annex 1”.

Safeguards other than Negative List – Governance and other hotpots

The negative list safeguard is not enough as the major concerns associated with the expansion of access are heavily interlinked with other hotspots such as issues associated with PGRFA digital sequence information/genetic sequence information and the payment structures and rates. Without improving accountability and transparency, sovereign rights over PGRFA are heavily compromised for the Parties, no matter how much longer each Party’s negative list can be.

It must be noted that access is facilitated by the MLS solely for the purpose of utilisation and conservation for research, breeding and training for food and agriculture. However, there are no proper checks to ensure the shared resources are not leaked to other users.  There are very little accountability and transparency mechanisms in place to ensure that the resources have not been used for other purposes. This is abridging the country of origin’s sovereign rights over PGRFA.

To the contrary, the institutions recognized under Article 15 of the Treaty such as centres of the Consultative Group for International Agricultural Research (CGIAR) have been uploading genetic sequence data (GSD) or digital sequence information (DSI) of the PGRFA to websites from which users beyond Treaty purposes can also access. This could considerably compromise, or probably has compromised, the opportunities of the affected countries to enter into bilateral benefit sharing agreements for use of MLS crops for non-food purposes.  In fact, some of these websites also promote anonymous use of PGRFA GSD/DSI inconsistent with Article 10(2) of the Treaty which requires the MLS to be transparent and efficient.

A farmers’ organization representative told Third World Network, “We know there is theft happening from the house regularly. We are talking about bringing more and more properties in the house, without improving the security”.

It is also clear that there are ways in which PGRFA from the MLS and their DSI/GSD or native traits could be subjected to intellectual property claims which render redundant the whole idea of facilitated access under the MLS. Civil society representatives also referred to a recent Dutch Gene Bank notification cautioning the claimants of intellectual property that there might be a conflict with the obligations under the MLS.

However, there is nothing in the report of the Working Group on how these concerns will be addressed, though the Co-Chairs have several times indicated that they will look into the notes they made during the 11th meeting.  The Co-Chairs have further noted in the report that they would consider the possible implications for Farmers’ Rights when working on the negotiating text, following the invitation by the Treaty Governing Body in Resolution 7/2023.

Regarding PGRFA DSI/GSD the Working Group recalled Resolutions 3/2023 on the enhancement of the functioning of the Multilateral System and 16/2023 on the consideration of DSI/GSD on PGRFA for the objectives of the International Treaty. The Working Group agreed to consider the possibility of developing a specialized approach for PGRFA DSI/GSD under the Treaty, although it will continue to monitor developments in other fora.

The North America Region, Republic of Korea, and Japan nevertheless stated they do not consider that a mandatory obligation exists to share benefits arising from the use of PGRFA DSI/GSD.

The Africa Region told the Working Group that PGRFA DSI/GSD should be shared through databases accountable to the Treaty secretariat and there should not be Intellectual property rights on native traits and GSD.

Regarding payment rates, the Working Group considered two models and two options. First of two models is the single access model, which is not much different from the current existing model where the seed industry would take material and breed. However, until they commercialise a product which incorporates an PGRFA specifically obtained through the MLS they do not have to pay. The difference from the existing system is that the user must pay if there is commercialisation. In the existing system, the user does not have to pay if they make the PGRFA available for further research and breeding.

The second model is the subscription model that requires the seed industry to become a subscriber to the MLS and pay regular annual payments based on the total income they generate on seeds of crops listed in Annex 1. In this case, there is no need for proving a direct relationship between the product commercialised and the utilisation of PGRFA from the MLS for making payments. It is enough that PGRFA commercialized by the user belongs to a crop in Annex 1.

The two options under consideration of the Working Group are the subscription only option or subscription plus single access option. Asia, Africa and certain members in the Europe Region expressed a priority for a subscription only model such that all industrial users will be subscribers. They indicated that to make benefit sharing a reality, perhaps there should not be an option given to the users to choose a single access option.  This is because there is significant time gap between accessing a PGRFA from the MLS and commercializing a product from it.

However, the North America region seems to be interested in the second option as well. GRULAC indicated they need more time to study the options.- Third World Network