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While most observers would have predicted greater progress on scope and access, and very little on FR, in fact the reverse occurred. <W0>Many delegates expressed surprise that a common approach on FR was reached so quickly. However, many delegates in the Working Group on Farmers’ Rights noted that the issues of FR and scope and access are inter-linked, and that there can be no agreement on FR without simultaneous agreement on scope and access.

FARMERS’ RIGHTS: Although a few countries expressed frustration that nothing substantive was achieved, compared to the Third Negotiating Draft (3ND), where there were many diverging positions, the Working Group was able to produce three consolidated proposals: one presented by all the developing countries; one by the EU, which had previously been unable to present a common position; and another by the US, the most vocal in its reluctance to recognize any form of Farmers’ Rights.

Overall, the Working Group’s dynamics were positive and there seemed to be an understanding that pre-negotiation discussions were in order. In this light, there was a willingness to explore the issues associated with FR from both national and international perspectives, building on understandings reached at the Leipzig Conference. Together the delegates developed a framework that will be used as a launch pad for further discussions.

The most contentious discussion concerned the actual definition of FR. Most countries agreed that FR has not been defined adequately by the FAO and that it is unclear what it is in fact a right to. There was also a realization that countries view the notion of FR from different perspectives based on their own legal systems’ recognition of groups versus individuals. This is a genuine problem for many countries since recognizing Farmers’ Rights may have extraordinary economic and social consequences. On the other hand, some countries perceive the recognition of groups to be a natural evolution of international law. In reality, there are very few countries that have been successful at incorporating FR into domestic legislation. Many countries also disagreed on the proper fora for addressing FR, including whether the FAO was the appropriate agency to administer such a scheme.

The concept of FR was recognized with the adoption of resolutions C5/89 in 1989 and C5/91 in 1991, which provided for the implementation of FR through an international fund on PGR. However, with the entry into force of the CBD, the focus shifted from PGR as the “common heritage of mankind” to the concepts of benefit-sharing (Article 1) and the sovereign rights of States over their natural resources (Article 15). The result is that the use of both national legislation and an international approach appears to be the direction that the discussions on FR will take.

SCOPE AND ACCESS: Throughout deliberations in plenary, an open- ended working group and a “Friends of the Chair” contact group, delegates made preliminary progress on outlining the various options for scope and access. Since there are so many different access regimes around the world, both private and public, bilateral and multilateral, it is difficult to conceptualize how the system as a whole might operate. Several participants noted the absence of clarity on how the various components of a system for the exchange of PGRFA, might link together. For example, what would be the conditions for access and benefit-sharing? Would these differ for different kinds of PGRFA? How would benefit- sharing link to Farmers’ Rights? How would different national regimes, with private and public actors participate in a harmonized international regime? Without a vision of how these components interact, observers noted, it is difficult for negotiators to allow room for their negotiating positions on component issues such as scope to shift.

Countries will not only need to understand the rationale for each others’ positions, they will need to better evaluate their own interests. Perhaps this is why Ethiopia’s proposal to devise a scenario of options regarding scope and access, dubbed the “matrix” approach by the US, was widely considered to be a “breakthrough” at the meeting. Appealing in its simplicity, the proposal would allow countries to conduct a cost-benefit analysis for each option. As one delegate put it, once countries can calculate their interests regarding various access arrangements, they will be in a better position to bargain.

Solutions that provide conceptually coherent and institutionally implementable definitions of scope, access, benefit-sharing and Farmers’ Rights is an intellectual, political, legal and managerial challenge. Since the science and technology are evolving, countries’ negotiating positions are still politically far apart, legal issues remain unresolved and the human and financial implications of implementing any of the proposed solutions are far from clear. This proposal by IPGRI, although somewhat controversial, was considered by many delegates to be thought-provoking. Indeed, the presentation by IPGRI and the ensuing discussion resembled a university seminar rather than an intergovernmental meeting. Their attempts to articulate positions on these complex matters forced delegates to grapple with these issues, and enabled them the better to appreciate the complexities involved. Delegates went beyond the political posturing that resulted in impasse at previous meetings that addressed the IU, in order to explore the interests and concerns that underlie their own and others’ positions.

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