ENB:09:68
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A BRIEF ANALYSIS OF THE IU NEGOTIATIONS
Most delegates agreed that CGRFA-7 marked the beginning of real negotiations toward revising the IU. However, the level and seriousness of the negotiations were not consistent across issue areas: while deliberations on Farmers’ Rights remained largely rooted in rhetoric, scope and access were the subject of intelligent and detailed discussion.
SCOPE AND ACCESS: While a working group was constituted to negotiate both scope and access, the scope issue, which was the focus of much attention at CGRFA-EX-3 in December, was almost absent from the discussions. While considering the article on scope in the Working Group, delegates quickly accepted a Bureau formulation, arising out of regional group submissions, which stated that “the IU relates to PGRFA”. Some delegates attributed this formulation to an informal agreement — reached during regional consultations — not to add qualifiers to PGRFA, which would include or exclude particular categories of PGR such as forest or medicinal resources, or pre- or post-CBD collections of genetic material. A developing country delegate noted that, with the definition of “plant genetic resources” still at large, this agreement signaled a decision to defer these discussions until later, when both PGR and PGRFA would have to be defined under Article 2 of the IU. This strategy allowed delegates to focus their full attention on access issues, where debate centered around the system(s) and conditions of access, and benefit sharing within an access regime.
A clear marker of progress within the access discussions was the agreement among a vast majority of the delegations — most notably the EU and the G-77 — on the need for a multilateral system of access and exchange, which is efficient, effective and transparent, to facilitate access to PGRFA. The modalities for such a multilateral system remained nebulous, and questions about how it would function were raised throughout the week. Nonetheless, a number of delegates noted that even an agreement in principle on the need for a multilateral system was a crucial first step. This was the case, noted one delegate, because in order for a multilateral system to be “efficient, effective and transparent” it would have to include benefit-sharing provisions that were acceptable to all Parties. This provided the much-needed meeting ground from wherein to debate the operationalization and modalities of such a system. A further conceptual advance was the understanding, among a number of countries, that a multilateral system of access and exchange should constitute more than just a set-up for exchange of germplasm, but rather that it should generate benefits, whether monetary or non-monetary, through its very existence and functioning.
Notwithstanding this progress, deliberations during the meeting seemed to encounter an almost unavoidable chicken-and-egg problem, whereby discussions and decisions on one issue appeared to be contingent upon another. Delegates noted, for example, that without discussing conditions of access to PGRFA, it would be inopportune or even impossible to designate the material to which the access system would pertain. At the same time, without knowing the material to which access was sought, conditions of access would be difficult to specify. A number of delegates noted that if one had to choose, a focus on conditions of access, along with benefit-sharing, would be a logical place to begin, since decisions in these areas would allow countries to decide whether or not their best germplasm would be available through the multilateral system.
Discussions on benefit-sharing also reflected the complexity of the issues. While not debated in any detail, the brief references to the distinctions between the country of origin versus the provider country, in the sharing and exchange of PGRFA, hinted at the fact that this will be a key area of contention in future deliberations.
Another point of confusion related to whether benefit-sharing pertained to every single transaction or exchange of germplasm. Delegates noted that this would be a logistical nightmare, in addition to being inefficient and costly. While a number of countries — both North and South — emphasized that a link between benefit-sharing and individual transactions was emphatically not what they desired, it remained unclear whether that was the general understanding. One delegate clarified that only in the event of commercialization of a product developed from PGRFA, made available through the multilateral system, that benefit-sharing provisions would take effect, rather than applying to routine exchanges for research or breeding. In general, however, benefit- sharing would relate to access to the PGRFA, technology transfer, sharing of information, and research and training activities relevant to conservation and sustainable use of PGRFA.
It is noteworthy that while discussions on scope and access provided a good foundation for future deliberations, consensus text was not adopted, largely as a result of the wariness on the part of a few delegations about making an explicit link between the access and benefit-sharing provisions of the IU. Some delegates also indicated their reluctance to enshrine recognition of the “sovereign rights of States over their PGRFA” as a potential future legal principle. The fact that these constituted minority views was evident in the closing plenary when delegates applauded to signal their approval of a clause on benefit-sharing in the meeting’s final report.
FARMERS’ RIGHTS: The Commission also entered into negotiations on Farmers’ Rights (FR) as it began to seek a better understanding of the objectives of various regional groups and the boundaries of those objectives, aided in part by a consolidated text that assisted in delineating the parameters of the debate. This was also the first time discussions on FR went beyond the entrenched positions of OECD and G- 77 blocks.
In particular, there has been a convergence of positions between a number of EU countries and most of the G-77 countries, in that both recognize FR as more than a concept. Consequently, several non-European OECD countries have found themselves increasingly isolated on this issue. Although they have not formally constituted themselves as such, several delegates anticipate the establishment of the JUSCANZ Group (Japan, US, Canada, Australia and New Zealand — with the exception of Norway) within the IU negotiations.
While the debate remains largely rhetorical and a precise definition of FR remains elusive, some delegates consider that it may be possible to reach a common understanding of the meaning of FR by specifying who recognizes such rights, where, and under what circumstances, and whether their realization requires the creation of an international fund.
Nonetheless, the Working Group on Farmers’ Rights current modus operandi has been unproductive. To date, any progress made through informal consultations has been quickly undermined in formal working group negotiations. One factor that has limited the effectiveness of the Working Group is its inability to agree on the meaning of basic entities such as farmers, traditional, indigenous and local farming communities. Another important area of ambiguity is whether the rights to be defined are national or international in scope. Indeed, many delegates expressed concern that it will be much more difficult to achieve consensus on an international right because the answers to questions such as “What is a farmer?” vary in each country. Such questions underscore the challenge inherent in forging common understandings when there are divergent frames of reference.
Given the difficulties outlined above, some delegates have privately cautioned against attempts to force a consensus on Farmers’ Rights at this stage of the negotiations. Still, several delegates have pointed to the rapprochement of the African Group and the EU as a possible way forward.
CONCLUSION: In starting negotiations on the most complex and contentious aspects, the Commission may have underestimated the difficulties inherent in revising the IU. Numerous delegates expressed concern that focusing exclusively on the toughest aspects of revising the IU is a high-risk strategy — one that may backfire in later stages of the negotiations.
With actual negotiations underway, several delegates have commented that more thought should be given to a proper negotiating structure. For example, the Commission could establish one or more parallel working groups to address other aspects of the IU, such as the relationship with other legal instruments, international cooperation, role of international organizations and information exchange. Reaching agreement on these less contentious provisions within the IU would serve as a confidence-building exercise among delegations.
Nonetheless, the decision to devote the first two days of the meeting to regional consultations signals an effort to better structure the negotiating process. There was general acknowledgment that the negotiations on both scope and access, and Farmers’ Rights had resulted in an understanding of regional and inter-regional positions on these highly contentious issues. Delegates saw this as an important advance from consideration of these issues only six months earlier at CGRFA-EX3.
The formal outputs of the IU negotiations at this meeting — heavily bracketed texts on access and Farmers’ Rights — cannot capture the progress made during CGRFA-7. The meeting resulted in the clarification of issues, further formulation of interests and consolidation of positions — key ingredients for the effective completion of negotiations for the revision of the IU. The Commission’s designation of the IU negotiations as its uppermost priority for the next biennium should provide ample opportunity to build on the progress made at this meeting.