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SCOPE AND ACCESS
WORKING GROUP ON SCOPE AND ACCESS: The Working Group on Scope and Access, chaired by Mr. Fernando Gerbasi (Venezuela), met for three sessions on Monday and Tuesday, 19-20 May 1997, to negotiate Articles 3 (Scope) and 11 (Access). The Working Group used the Bureau’s Text as the starting point for its negotiations, as well as a Secretariat paper that synthesized the various conditions of access discussed during the first day of the meeting and/or contained in written regional submissions. The Chair introduced the Bureau’s Text and noted that the regional consultations had resulted in a clarification of concepts and movement toward common ground, especially within regions, on key issues such as system(s) and conditions of access to PGRFA. He also noted the continuing inter-regional differences in some of these areas, as reflected in the consolidated text.
The Bureau’s Text listed three options for system(s) of access to PGRFA, which included unrestricted access, a multilateral system of access and exchange, and/or bilateral access. The Chair noted that these were not mutually exclusive, which left open the possibility that a combination of access systems could apply to different categories of genetic material. Another area of divergence, reflected in the Bureau’s Text, related to the categories of genetic material to which the system(s) of access would apply. Options in the text included a list of major crops, material found in national and/or international collections, and/or material designated voluntarily by countries. The Chair called on delegates to try to achieve consensus on the outstanding issues, instead of reiterating regional positions.
Article 3: The Bureau’s Text, which stated that “This Undertaking relates to plant genetic resources for food and agriculture” was accepted by all delegates with little debate. BRAZIL, on behalf of the Latin America and Caribbean Group (GRULAC), and ANGOLA, on behalf of the African Group, highlighted that Articles 1 and 2 of the IU on objectives and definitions, respectively, would have an impact on scope as expressed in Article 3. The NETHERLANDS, on behalf of the EU, noted its preference to refer to key objectives of the IU in this article, but concurred with the wording in the Bureau’s Text.
Article 11.1: Debate on this introductory article on access centered around four key elements included in the formulation in the Bureau’s Text: the sovereign rights of States over their genetic material, the facilitation of access to genetic material, in accordance with the CBD, and the role of national legislation. Revisions to the text, including some or all of the above elements, were tabled by the African Group, the US and Colombia. While CANADA noted that State sovereignty was a well-accepted principle, and thus did not need repeating in this article, IRAN expressed its preference for the reference to be retained. The US noted that reference to the CBD’s provisions may be inappropriate in an article designed explicitly to implement such provisions. CANADA and the EU pointed out that a number of the proposals on the table seemed to make access to PGRFA contingent upon the existence of national legislation, rather than merely subject to already existing national legislation.
In response to the views expressed, the Chair formulated new text for this article that stated that “Parties recognize the sovereign rights of States over their PGRFA, including the authority to determine access to those resources, subject to national legislation, and in accordance with the CBD”. INDIA, BOLIVIA, COLOMBIA and the AFRICAN GROUP registered their agreement with this formulation. The EU objected, since the reformulated text did not contain the key idea of “facilitating access,” which was as important as the other elements. The Working Group decided to revisit this sub-article at a later session.
Article 11.2: Debate on this main article on access, as formulated in the Bureau’s Text, revolved around the system(s) of access to PGRFA (unrestricted, multilateral and/or bilateral), options relating to the material to be included within such system(s), the conditions of access to these materials, and whether or not, and in what form, benefit- sharing was to be included within this article.
System(s) of access: The G-77, supported by ARGENTINA, the AFRICAN GROUP, COLOMBIA and BOLIVIA, emphasized the need to establish a multilateral system of access and exchange covering designated genetic material. Categories of material falling outside this system would be governed by bilateral agreements, to be entered into by contracting Parties on mutually agreed terms, keeping in mind the provisions of the CBD. The EU noted the need for a combination of an unrestricted and a multilateral system of access to PGRFA, the cornerstone of which would be an International Network, which would include collections of PGRFA at national, regional and international levels. The US reiterated the need for unrestricted access to a specified sub-set of PGRFA.
In the debate that followed, CANADA noted that reference to bilateral arrangements appeared unnecessary, since material falling outside the scope of the multilateral system would be covered under the purview of the CBD. The AFRICAN GROUP noted its preference to retain the reference to bilateral arrangements. In response to queries from the US, BRAZIL and CANADA on the composition and mode of functioning of an International Network, the EU clarified that Parties and various other participants could be included in the Network, which could include International Agricultural Research Centers, as well as designated national collections, whether ex situ or in situ.
The US noted that a number of well-functioning networks on genetic resources already existed, and pointed out that the aim of the current exercise should be to continue the facilitated open-access regime on genetic resources that the world has benefited from to date, rather than create new institutional arrangements. BRAZIL questioned the EU’s suggestion that the Network would consist of “Parties and participants”, noting that his understanding was that only States and regional economic integration organizations could be part of the IU, not associations or private enterprises. AUSTRALIA noted that instead of creating new institutional arrangements, a simple list of participating organizations could be created and placed with the FAO. The EU pointed out that since the Network was envisioned to be more that just a simple exchange of germplasm, and would include sharing of information and technology transfer, it seemed unlikely that it could be placed wholly under the FAO, yet it was too early to take that decision.
In response to the Chair’s observation that there seemed to be agreement emerging on a multilateral system of access and exchange, whatever the modalities of such a system, the US stated that it agreed to the need for a multilateral arrangement rather than a system and that, with the rapid change in communications, there were various ways in which distributive networks could work quickly and efficiently. One example was the Consultative Group on International Agricultural Research (CGIAR) electronic network of commodity centres, information from which could be accessed from one website.
GERMANY and FRANCE noted that the multilateral system, including the Network, was envisioned as more than an Internet catalogue from which genetic material could be ordered. Instead, it would be an instrument that would generate benefits — both monetary and non-monetary — which would then be shared equitably. FRANCE noted that such a network was already in place in Europe, was functioning very well and could serve as a model for the International Network. MALAYSIA, on behalf of the G-77, supported by the EU, MADAGASCAR, ARGENTINA, MALAWI and IRAN, on behalf of the Middle East, stressed the need for a multilateral system of exchange with mutual benefit-sharing. Further discussion of this issue was taken up in a contact group that met later in the week.
Material to be included: A second related issue covered in the debate on Article 11.2 addressed the material for which access was being debated. MALAYSIA, supported by the AFRICAN GROUP, noted that material voluntarily designated by countries, as well as material whose source country was unknown, should be included within the multilateral system of access and exchange. The US emphasized the need for access to the list of major food crops important to world food security, outlined in Annex A in the Bureau’s Text. IRAN suggested that important food crops should be covered under a multilateral system, while other crops could be covered by bilateral arrangements. BRAZIL noted that further consultations within his region were necessary regarding the US proposal for a list. He further emphasized that his delegation was unable to accept a proposal for a system wherein countries would volunteer PGRFA, since this might result in one country volunteering another country’s germplasm in its possession. A clearer mandate on the material to be covered is required.
JAPAN noted that since the goal of this exercise was to harmonize the IU with the CBD, the distinction in the CBD between countries of origin and countries providing genetic material should be kept in mind. He pointed out that “country of origin” is defined in the CBD as one with the genetic resources in in situ conditions at the time of the CBD’s entry into force, and emphasized that it would be impossible for his country to accept a retroactive application of the CBD.
Regarding the US proposal for a list to which access would apply, the EU noted its preference for broad networks rather than narrow lists. The US pointed out that the Network proposed by EU would also require a list of institutions and collections, and that lists should be modified in light of new information. AUSTRALIA noted that rather than listing material, a list of institutions and collections that would go beyond the CGIAR might be more useful. The US noted its support for such a list if it included all germplasm relevant to PGRFA.
Conditions for access: BRAZIL, supported by COLOMBIA and MALAYSIA, on behalf of the G-77, noted strong opposition to the idea of unrestricted access and preference for the concept of facilitated access. This access would be as quick as possible, with a minimum of bureaucratic delays, and with a declaration that use of acquired PGRFA would be food and agriculture-related. Furthermore, conditions for facilitated access would include cost-sharing for in situ collections. MALAYSIA, supported by ANGOLA, pointed out that conditions for access were laid out in detail in the African Group’s regional proposal.
JAPAN emphasized that unrestricted access to PGRFA was what generated benefits in the first place. The US noted that they did not intend “unrestricted” to apply to genetic material in landraces or in situ farmers’ fields; rather they intended it to apply to the sub-set of genetic material, the major food crops, specified in Annex A to Article 11.2 in the Bureau’s Text. To make this clearer, the US proposed adding a list of designated institutions that maintained such genetic material to the Annex. CANADA pointed to the need to understand how delegations were using the terms “unrestricted” and “facilitated” access. He noted that facilitated access seemed to include the idea that access would be quick, used only for food and agricultural purposes, and would include cost-sharing for in situ collections. Unrestricted access, on the other hand, seemed to include the above, as well as the notion that: access would not be denied, except in the presence of technical hurdles; access would be provided on the basis of a simple exchange of correspondence; and benefit sharing would not be based upon individual transactions of germplasm exchange.
Following these clarifications, MALAYSIA, supported by COLOMBIA, BOLIVIA, BRAZIL, ARGENTINA and TANZANIA, reiterated that the concept of facilitated access was the only acceptable one. The US concurred with use of the term “facilitated” but proposed using the phrase “facilitated open access”. COLOMBIA, BRAZIL and MALAWI questioned the value-added of the term “open”.
Following these discussions, a Secretariat Paper that synthesized the various options, and characterized them according to procedural, use, cost and benefit sharing conditions of access, was considered by the Group. BRAZIL, supported by ARGENTINA, called for inclusion, under procedural conditions, of a clause specifying that every individual instance of access should not give rise to a counterpart benefit, but rather that access and exchange should be based upon the principle of broad reciprocity. CANADA noted that to minimize bureaucracy in facilitating access, an option could be to employ a common sales practice whereby upon opening a package, certain obligations were incurred. ECUADOR noted that the condition stating that “access will not be denied once requested” may pose problems for countries with legislation requiring a contract between Parties in order for an exchange to occur, as well as where the authority to deny requests was vested in designated national entities. The Chair noted that national legislation would always take precedence over the IU and, furthermore, that the standing of the IU and its mode of implementation still remained unclear. JAPAN pointed out that technical hurdles could sometimes prevent provision of a sample. INDIA, supported by the EU, TANZANIA and ARGENTINA, voiced its strong support for a clause under procedural conditions stating that access should be facilitated by the provision of adequate information on genetic material.
Benefit-Sharing: In discussions on benefit-sharing within the context of Article 11.2, JAPAN noted that the main beneficiaries of unrestricted access to PGR were plant breeders in developed and developing countries, not farmers, and that it was this access that generated benefits in the first place. He reiterated the need, therefore, to consider how the various schemes for access could provide incentives to plant breeders. CANADA, supported by AUSTRALIA, reiterated that access to PGR constituted, in itself, the most important benefit to be shared, and thus should be the main benefit referred to in Article 11.2. He noted that other articles could cover additional benefits such as technology transfer and information exchange. COLOMBIA, supported by the AFRICAN GROUP, reiterated that reference to benefits in addition to the benefit of access — whether monetary or non-monetary — was crucial to the access provisions of the IU and should be included in Article 11.2. While CANADA repeated its willingness to discuss different benefit-sharing categories and mechanisms in appropriate articles of the IU, it also reiterated that benefit sharing should not be linked to individual transactions of germplasm exchange.
Article 11.4: As formulated in the Bureau’s Text, this article states that Parties acquiring PGRFA under the auspices of the IU, yet utilizing this material for non- agricultural purposes, would be obliged to fairly and equitably share the benefits arising from such use. The EU, supported by the US, AUSTRALIA and CANADA, pointed out that if the use was not food and agriculture-related, it should fall under the purview of the CBD, and this article should be deleted. TANZANIA, supported by CAMEROON, ETHIOPIA, MALAWI, SAMOA and MALI, noted the importance of including this article in the IU, arguing that in its absence PGRFA used in the pharmaceutical industry, for example, would not be eligible for benefit sharing.
CONTACT GROUP ON SCOPE AND ACCESS: Following the debates in three sessions of the Working Group on Scope and Access, a Contact Group was established to continue the negotiations. The Contact Group used the Bureau’s Text, as amended by the Working Group, as the basis for its deliberations. The Contact Group was comprised of the US, Canada, Australia, the Netherlands, France, Switzerland, Germany, Norway, Poland, Malaysia, India, China, Japan, Angola, Ethiopia, Tanzania, Malawi, Brazil, Argentina, Colombia, Iran and Morocco. It met for two long sessions on Tuesday and Thursday afternoons under the Chairmanship of Mr. Fernando Gerbasi (Venezuela).
After the first session of the Contact Group, the Chair reported to the Wednesday morning plenary on the status of negotiations, which were reflected in the document entitled “Text considered in the Working Group meeting on 19 and 20 May”. The Chair noted that substantial progress had been made. Article 3 on Scope remained consensus text, as agreed to in the Working Group. In addition, Article 11.1 was now consensus text, and included reference to the key elements of sovereign rights of States over their PGRFA, the authority to determine access to these resources subject to national legislation, and the need to facilitate access to such resources in accordance with the CBD.
The Chair then noted that the first part of Article 11.2, on system(s) of access was now consensus text. It reads: “Parties agree to establish a multilateral system, which is efficient, effective and transparent, to facilitate access to PGRFA.” A second sentence in this article, dealing with benefit-sharing within this multilateral system, was in brackets because negotiations on its wording remained incomplete.
Given agreement to establish a multilateral system of access, conditions for such access were now included in a new Article 11.3. The first part of this article included bracketed options calling for access to be free of charge, with a modest handling fee, or at the lowest charge possible. The second part noted that recipients of material must be informed and/or must formally agree that material received could be used for research, breeding or training in food and agriculture. A reference to other use of this material being subject to different conditions, including a reference to the CBD, remained in brackets. The Chair noted that the Working Group should continue its deliberations as a contact group to consolidate progress made to date.
Following a second meeting of the Contact Group on Thursday, a document entitled “Text Considered in Meetings on May 22nd” was distributed in plenary on Friday morning. In presenting this document, the Chair emphasized that progress had been made, despite the fact that brackets now appear around text that had been previously been agreed to. He noted that while Article 3 on scope remained unchanged, Articles 11.1 and Article 11.2 were now bracketed. Noting that the text would have to remain as it currently stood, and in order to accurately reflect the progress made on this issue, the Chair proposed deleting brackets around sub-articles, and placing one set of square brackets around Article 11 in its entirety, to signal that negotiations on the contents of the article as a whole were still underway. Delegates supported the Chair’s suggestion, and endorsed the fact that progress had indeed been made.