Summary report, 5–10 February 2001
5th Intersessional Contact Group Meeting on the Revision of the International Undertaking on Plant Genetic Resources, in Harmony with the CBD
The Fifth Inter-sessional Contact Group Meeting on the Revision of the International Undertaking on Plant Genetic Resources for Food and Agriculture (IU), in harmony with the Convention on Biological Diversity (CBD), was held at the headquarters of the United Nations Food and Agriculture Organization (FAO) in Rome, Italy, from 5-10 February 2001. One hundred fifteen participants from 38 countries, one regional economic integration organization, and intergovernmental and non-governmental organizations attended the meeting. Delegates continued discussions on Articles 12 (Coverage of the Multilateral System), 17 (Governing Body), 18 (Secretariat), 20 (Amendments of the Undertaking) and 21 (Amendments of Annexes), as well as a proposed article on supporting components of the Multilateral System (MS). Delegates also held a general discussion on the IUs legal basis in relation to the FAO and the CBD. In addition, a technical group was formed to list and define terms used within the text of the IU.
The meeting advanced discussion in some procedural areas, while deferring discussion on specific institutional relations regarding the Governing Body and secretariat until the question of the IUs legal basis is resolved. Delegates also debated voting rules and decision-making procedures without resolution. On substantive issues, the Contact Group held extensive discussions on the terms for including ex situ collections held by Centres under the Consultative Group on International Agricultural Research (CGIAR) and other international institutions. While the Group did not resolve issues on conditions for material not listed in Annex I (List of Crops covered by the MS), several delegates thought that the discussions were valuable in clarifying the range of issues and positions regarding such collections. The overall pace of discussions remains slow, raising concerns among some delegates about meeting the November 2001 deadline recently set by the 119th FAO Council. The next meeting of the Contact Group will take place in Italy from 23-28 April 2001.
A BRIEF HISTORY OF THE PROCESS
THE FAO GLOBAL SYSTEM: The FAO established the inter-governmental Commission on Plant Genetic Resources in 1983. Renamed the Commission on Genetic Resources for Food and Agriculture (CGRFA) in 1995, the Commission is currently comprised of 160 countries and the European Community. The CGRFA coordinates, oversees and monitors the development of the Global System for the Conservation and Utilization of Plant Genetic Resources for Food and Agriculture, which is comprised of the Commission itself and the non-binding IU, the rolling Global Plan of Action (GPA), the International Fund for Plant Genetic Resources, the World Information and Early Warning System, Codes of Conduct and Guidelines for the Collection and Transfer of Germplasm, the International Network of Ex Situ Collections under the auspices of FAO, and the international network of in situ conservation areas and crop-related networks.
THE INTERNATIONAL UNDERTAKING: The IU, the first comprehensive instrument on plant genetic resources for food and agriculture (PGRFA), was established in November 1983 by FAO Conference Resolution 9/83. Its objective is to ensure that PGRFA are explored, collected, conserved, evaluated, utilized and made available for plant breeding and other scientific purposes. It was originally based on the principle that PGRFA should be "preserved and freely available for use, for the benefit of present and future generations" as part of the common "heritage of mankind." This principle, however, was subsequently subjected to "the sovereignty of States over their plant genetic resources" (FAO Resolution 3/91). Although a non-binding agreement, the IU was not adopted by consensus, as eight developed countries formally recorded reservations. To date, 113 countries have adhered to the IU, with Brazil, Canada, China, Japan, Malaysia and the US as notable exceptions. In April 1993, the Commission considered the implications of the 1992 UN Conference on Environment and Development, and the CBD in particular, for the IU. Recognizing that the CBD would play a central role in determining policy on PGRFA, the Commission agreed that the IU should be revised to be in harmony with the Convention. At its First Extraordinary Session, held in November 1994, the Commission reviewed a First Negotiating Draft, which incorporated three interpretative annexes into the IU, and provided a more rational structure, grouped into 14 articles.
SIXTH SESSION OF THE CGRFA: The CGRFA held its sixth session at FAO Headquarters in Rome in June 1995. In addition to its regular agenda, the Commission considered a Second Negotiating Draft. At this meeting, the Commission focused its discussions on provisions for scope, access, farmers rights and the preamble.
SECOND EXTRAORDINARY SESSION OF THE CGRFA AND FOURTH INTERNATIONAL TECHNICAL CONFERENCE ON PGRFA: The CGRFA held its second extraordinary session in Rome in April 1996, in order to address several issues in preparation for the Fourth International Technical Conference on Plant Genetic Resources (ITCPGR-4), held in Leipzig, Germany, in June 1996. ITCPGR-4 agreed on an international programme for the conservation and utilization of PGRFA. Representatives of 148 States adopted the Leipzig Declaration and the GPA.
THIRD EXTRAORDINARY SESSION OF THE CGRFA: The CGRFA held its Third Extraordinary Session in Rome in December 1996. Delegates considered a Third Negotiating Draft and returned to discussions on scope, access and farmers' rights. Although the meeting did not produce any new negotiated text, it did make progress on difficult and often divisive issues.
SEVENTH SESSION OF THE CGRFA: The CGRFA held its seventh session in Rome in May 1997. Delegates continued negotiations on the revision of the IU in two working groups, addressing scope, access and farmers rights. The meetings most notable achievements were conceptual advances regarding farmers rights and the establishment of a Multilateral System (MS) to facilitate access to PGRFA.
FOURTH EXTRAORDINARY SESSION OF THE CGRFA: The CGRFA held its fourth extraordinary session in Rome in December 1997. Delegates considered a Fourth Negotiating Draft in one working group and one contact group. The working group produced consolidated text on: objectives; relationship of the IU with other international agreements; conservation, exploration, collection, characterization, evaluation and documentation of PGRFA; sustainable use of PGRFA; international cooperation; the GPA; the international network of PGRFA; global information systems on PGRFA; and farmers' rights. The contact group continued discussions on issues related to access and benefit-sharing, and made progress as proposals began to take shape for a MS to facilitate access to PGRFA through a list of major crops. The first exchange of views on benefit-sharing was insightful, and the complexities of tackling the private/public sector interface and balancing intellectual property rights (IPR) interests were acknowledged.
FIFTH EXTRAORDINARY SESSION OF THE CGRFA: The CGRFA held its fifth extraordinary session in Rome in June 1998. Delegates continued discussions in an open-ended working group and a Chair's contact group. The working group reviewed the provision on farmers rights. The contact group reviewed elements of an article on access to PGRFA and introduced new text on benefit-sharing and financial arrangements. Overall, the working group made little progress on the issue of farmers' rights, as fundamental differences divided key regional groups, particularly on ascribing legal rights for farmers. The contact group made some progress on access, however, the relationship between facilitated multilateral access and IPR continued to be problematic.
115TH FAO COUNCIL: The FAO Council held its 115th session in Rome in November 1998. The Council recognized progress made to date and supported convening an informal meeting of experts to address benefit-sharing, farmers rights, the financial mechanism, the legal status of the revised IU, and other issues.
MONTREUX EXPERTS MEETING: The meeting of experts was held in Montreux, Switzerland, in January 1999. Participants attended in their personal capacity to discuss the IUs legal status, its structure, the MS, farmers rights and financial resources. Based on the discussions, Chair Fernando Gerbasi (Venezuela) drafted a series of "Chairmans Elements" reflecting areas of broad consensus as a basis for continuing the negotiations. There was general consensus that the IU should take the form of a legally binding instrument and that its structure should be dynamic. The Chairmans Elements address: scope; objectives; national commitments, programmes and rural development policies; the MS, including components for facilitated access and benefit-sharing; farmers rights; financial resources; a legally-binding instrument; and provisions for amending the IU and its annexes.
EIGHTH SESSION OF THE CGRFA: The CGRFAs eighth session was held in Rome in April 1999. The Commission decided to continue negotiations on the IUs revision using a Composite Draft Text, and authorized the Chair to convene a Contact Group to advance negotiations, using the Chairmans Elements derived from the Montreux meeting. The Contact Group consisted of 41 countries selected according to regional representation and was formed to address the most contentious issues under debate. The Commission also authorized an Extraordinary Session of the Commission to adopt the final text when appropriate, so that the results could be submitted to the 119th Session of the FAO Council in November 2000. Negotiations proceeded on Articles 11 (Multilateral System of Access and Benefit-sharing), 12 (Coverage of the MS) and 15 (Farmers Rights). Significant progress was made on farmers rights with the adoption of agreed text.
FIRST INTER-SESSIONAL CONTACT GROUP MEETING: The first meeting of the Contact Group took place in Rome from 20-24 September 1999. The group focused on Article 14 (Benefit-sharing), on the basis of a submission by developing countries, addressing sub-articles on: exchange of information; access to and transfer of technology; capacity building; and the sharing of monetary benefits of commercialization. Consensus was reached on text for exchange of information, while text on access to and transfer of technology and its implications for IPR remained bracketed. On commercial benefit-sharing, the group recognized the link between the income derived from the commercial use of PGRFA and benefit-sharing, but there was insufficient time for review.
SECOND INTER-SESSIONAL CONTACT GROUP MEETING: The second meeting of the Contact Group took place in Rome from 3-7 April 2000. The group continued a general discussion on Articles 13 (Facilitated Access), 14 (Benefit-sharing) and 16 (Financial Resources), and made some progress on clarifying positions and agreeing on text.
THIRD INTER-SESSIONAL CONTACT GROUP MEETING: The third meeting of the Contact Group was held in Tehran, Iran, from 26-31 August 2000. The Contact Group continued negotiations on Articles 13, 14 and 16. The group made significant progress with a provisional package agreement on IPR and commercial benefit-sharing, which was subject to review by a few developed countries. Regions also submitted lists of crops for consideration under Annex I (List of Crops) with numbers ranging from nine to 287 crops.
FOURTH INTER-SESSIONAL CONTACT GROUP MEETING: The fourth meeting of the Contact Group was held in Neuchtel, Switzerland, from 12-17 November 2000. Significant time was devoted to discussion of Article 16, where agreement was reached on most provisions. Provisional progress made on IPR and commercial benefit-sharing at the third Contact Group meeting was called into question as four countries stated, based on consultations with their capitals, that a proposed compromise package was unacceptable. Delegates also engaged in extended discussions and considered input from external experts regarding intellectual property issues as related to the IU, CBD and the World Trade Organizations Agreement on Trade-related Aspects of Intellectual Property Rights.
119TH FAO COUNCIL: The FAO held its 119th Council meeting in Rome from 20-25 November 2000, where it reviewed Chair Gerbasis report, detailing obstacles and areas of progress within the negotiations. The Council requested Chair Gerbasi to convene further sessions of the Contact Group as required, and a meeting of the CGRFA to finalize the IUs revision for submission to the 31st FAO Conference in November 2001.
REPORT OF THE CONTACT GROUP
Amb. Fernando Gerbasi, Chair of the CGRFA, opened the Fifth Inter-sessional Contact Group Meeting for the Revision of the International Undertaking on Plant Genetic Resources, in harmony with the CBD on Monday, 5 February 2001, at FAO headquarters in Rome. Louise Fresco, Assistant Director General for the FAO Agriculture Department, noted significant support by countries at the recent 119th FAO Council for continuing negotiations. She said that the Contact Group needs to forward its work to the CGRFA in June for reporting to the 31st FAO Conference in November. She highlighted the potential consequences should there be no agreement on the IU, including: loss of credibility within the agricultural sector and within the larger UN system; increased tensions within international agricultural, environmental and trade institutions and agreements; difficulties in implementing the GPA; and reversion to bilateral negotiations for access to genetic resources. She concluded by thanking the Governments of Belgium, Italy, Japan, the Netherlands, Norway, Sweden and Switzerland for their financial support.
Using the Composite Draft Text (CGRFA/CG-5/01/2) as a basis for discussion, Chair Gerbasi proposed that the Contact Group address Articles 12 (Coverage of the MS), 13 (Facilitated Access), 17 (Governing Body), 18 (Secretariat), 20 (Amendments of the IU), 21 (Amendments of Annexes) and a new article on supporting components of the MS. A regional group of developing countries highlighted the need to overcome disagreement on Article 14 (Benefit-sharing in the MS). Chair Gerbasi said that Article 14 was excluded from the proposed list because it contains no brackets.
Chair Gerbasi reviewed his report to the 119th FAO Council, as well as the Councils acknowledgement of the need for a regionally balanced legal group to address the legal consistency of negotiated text, and a technical group to address the definition of key terms. Chair Gerbasi then requested comments on a Chairs proposal for the terms of reference for such groups. A number of delegates recognized the lack of legal representation at this meeting, and it was noted that formation of a legal group would be premature. Chair Gerbasi called for a report on legal inconsistencies by the FAOs Legal Counsel to the legal group, which would meet during the sixth meeting of the Contact Group. After some discussion, Chair Gerbasi also requested formation of an open-ended technical group to formulate a list of terms to be defined.
The Contact Group met daily in morning, afternoon and occasional evening sessions, held a general discussion on the IUs legal basis, and conducted negotiations on Articles 12, 17, 18, 20 and 21. A small group was convened to assist discussions on proposals related to Article 12, and the technical group met to establish and define a provisional list of terms. The following summary reviews the articles discussed in their numerical rather than chronological order.
Editors Note: As a matter of policy, the Earth Negotiations Bulletin does not directly attribute statements made by governments in informal negotiations when requested to do so.
LEGAL BASIS OF THE IU
On Tuesday, 6 February, Chair Gerbasi, noting difficulties in resolving particular issues in Article 17, called for comments on the IUs legal and institutional relationship to the FAO and CBD systems. The FAOs Legal Counsel drew attention to document CGRFA-8/99/9, on legal and institutional options for the IUs revision. Such options include:
- maintaining the IU as a non-legally binding agreement;
- adoption as a legally binding agreement under Article 14 (Conventions and Agreements) of the FAO Constitution;
- adoption at a diplomatic conference under the FAOs auspices, but outside its constitutional framework;
- adoption as a protocol to the CBD; and
- adoption as an agreement for the implementation of the CBD in the area of PGRFA (under this "implementing agreement" option, the IU could be adopted either under Article 14 of the FAO Constitution, or at a diplomatic conference under the auspices of the FAO but outside its constitutional framework).
He noted that the "implementing agreement" option would establish practical and legal links with the CBD, and allow non-Parties to the CBD to become members of the IU.
Several delegations generally supported the IU as a legally binding instrument with close links to both the FAO and CBD. A group of developed countries expressed preference for the "implementing agreement" option, while noting that they would consider the option for a protocol to the CBD. A developed country preferred adoption under Article 14 of the FAO Constitution. One developed country favored adoption in a diplomatic conference to achieve greater flexibility, provided the FAO Secretariats support is guaranteed. A developing country expressed concern with the financial implications of each option, noting a shortage of FAO resources. The FAOs Legal Counsel stated that the FAO Constitution provides for different modalities on the degree of the IUs financial independence, noting a tendency for more autonomous agreements under the FAO.
Chair Gerbasi asked for ways to operationalize the link between the IU and the FAO and CBD. A representative of the CGRFA proposed a parallel resolution for adoption by the FAO Conference and the CBD Conference of the Parties (COP), which could address: mutual reporting at intergovernmental and secretariat levels; mutual access to information; development of joint programmes of work and joint working groups; and response of the IU Governing Body to CBD COP requests in the area of PGRFA. The CBD Secretariat referenced CBD COP-3 and COP-5 decisions welcoming options linking the FAO and the CBD to the IU. Chair Gerbasi then deferred further discussion on the issue for a future meeting.
ARTICLE 12 (COVERAGE OF THE MULTILATERAL SYSTEM)
This article addresses the scope and coverage of the MS, and was discussed in detail from Wednesday to Saturday, 7-10 February.
ARTICLE 12.1: On Wednesday, 7 February, delegates noted that Article 12.1, which states that the MS shall cover PGRFA listed in Annex I, had been adopted ad referendum, pending adoption of Article 21 (Amendments of Annexes).
ARTICLE 12.2: Regarding ex situ collections held by international institutions, delegates considered proposals for: reformulation of the existing Article 12.2 of the Composite Draft Text; a proposed Annex V; and a Chairs compromise proposal for creating a new article.
Composite Draft Text: Article 12.2 of the Composite Draft Text defines the material covered by the MS and specifically addresses material held in ex situ collections by the International Agricultural Research Centres (IARCs) of the Consultative Group on International Agricultural Research (CGIAR) and other international institutions. On 7 February, delegates began discussing alternate text proposed during the Fourth Contact Group Meeting by a regional group of developing countries, requiring CGIAR Centres and other international institutions to be subject to the IUs provisions and adhere to a new formulation of Annex V (Conditions for International Institutions Holding Ex Situ Collections). Developed countries supported the first formulation in the Composite Draft Text, which would require adherence by these Centres to the IUs provisions only after they agreed to accept them. One developed country stated that the Centres could not be legally compelled to join the MS, stressed that the IU should be created with incentives for participation, and noted that Centres would be required to adhere to the MS once they had agreed to become a part of it. A number of developing countries raised concerns that exclusion of Centres collections, if left to their discretion, would result in a parallel system outside of the MS, noted that material is currently held in trust for the international community, and emphasized the need to clearly define the relationship of the Centres to the IU.
A representative for the CGIAR said that each of the 11 Centres is an independent legal entity having a separate agreement with the FAO. He supported an appropriate legal mechanism by which all Centres could become a part of the MS. He also advocated inclusion of as many crops as possible, asking Parties to consider how to resolve the issue of restricting material held in trust for the international community under the MS, and suggested that crops not on the list be maintained and accessed through current FAO agreements.
In response to this discussion, a regional group of developed countries tabled a proposal that more specifically addressed PGRFA currently held in trust under FAO auspices in collections of CGIAR Centres that have concluded an agreement with the Governing Body and PGRFA held in collections of other international institutions that accept the provisions of the IU under terms to be mutually agreed with the Governing Body. The proposal also included a new Article 12.3, stating that the Governing Body shall seek to establish agreements with the CGIAR Centres in accordance with the provisions of Article 12 and Annex V. Response to this text was deferred to allow for consultations.
On Thursday, 8 February, questions surrounding inclusion of material held in the collections of CGIAR Centres and other international institutions were discussed at length. Another group of developed countries tabled a proposal addressing PGRFA listed in Annex I and held in the collections of CGIAR Centres or other international institutions agreeing to be bound by the IUs provisions on facilitated access and benefit-sharing, and by other management, administrative and dispute resolution requirements. It states that participating institutions may, at their discretion, provide facilitated access to PGRFA not listed in Annex I on the same terms as for materials in Annex I, although such material shall not be considered part of the MS.
Developing countries emphasized that they opposed giving international institutions holding PGRFA the latitude to decide whether they should be included in the MS, since this would leave open the possibility for a parallel system to the IU. They supported creating a single MS under a single authority, which would automatically include all Annex I material, including collections held by the Centres. A representative of the group of developed countries stressed that binding provisions cannot be imposed unilaterally on other international institutions. Another group of developed countries said that the proposal suggested creation of an alternative system for Centres collections not in Annex I and instead supported their inclusion within the MS.
A developed country said that any voluntary effort by the Centres to make more of their material available should be permitted and encouraged, and that the ideal situation would be to include all CGIAR crops within Annex I. Two developing countries responded that identical treatment of all material, left to the Centres discretion, would contravene the sovereignty principle enshrined in the CBD, as countries would no longer have control over resources they had provided. This raised the issue of who owns the genetic resources within the Centres, with some developing countries emphasizing national sovereignty over resources provided and some developed countries emphasizing that the FAO Agreements with Centres state that such resources are to be held in trust for the international community.
A representative of the CGIAR stated that each Centre has a legal personality allowing it to sign onto an agreement. He concurred with the interpretation that the Centres cannot be legally bound to sign the IU, but underscored that they want to be a part of the system. He advocated consideration of procedural measures whereby the IUs entry into force would pend formal adherence by all Centres to the terms of the IU.
Delegates also raised questions regarding inclusion of genetic materials within the CGIAR Centres collected prior to the CBDs entry into force, held in trust for the international community, versus those collected afterwards, along with the consequences for crops within those collections not contained in Annex I to be covered by the MS. An NGO representative: emphasized that germplasm flows between countries show benefits to developing countries; stressed the importance of the Centres to food security; and agreed with developing countries that legal, structural and political change should take place within the CGIAR Centres to harmonize them with the IU, so that collections would be securely in the hands of the IU and the international community.
Following these debates, developing countries introduced a new text for Annex V (Ex Situ Collections Held by International Institutions under the IU).
Proposed Annex V (Ex Situ Collections Held by International Institutions under the IU): The proposed Annex V aimed to regulate the status, access and sharing of benefits derived from the use of material and related data held by international institutions. Originally tabled by a regional group of developing countries during the Fourth Contact Group Meeting, a revised version of Annex V was drafted by developing countries and presented on Thursday, 8 February, following discussions on Article 12. On Friday, 9 February, delegates began discussing Article 2 (Basic Understanding) of the proposed annex, regarding the terms for management of Annex I and non-Annex I material as divided into three categories or sub-provisions. Article 2.1 proposed that Annex I material would be dealt with in accordance with the provisions of the Multilateral System (MS). Article 2.2 proposed that non-Annex I material held by international institutions, and thus excluded from the MS, shall be accessed in accordance with a standard Material Transfer Agreement (MTA) detailed in Article 3 (MTA) of the proposed annex, and subject to the conditions set in Articles 13 (Facilitated Access) and 14 (Benefit-sharing) of the IU. Article 2.3 proposed that non-Annex I material received after the IUs entry into force shall be accessed according to mutually agreed terms to be decided by the international institution and the country where the material is collected, in harmony with the CBD.
Developing countries stressed that under the MS there would be no tracking and thus no need for MTAs. For non-Annex I material, MTAs would serve to track it and impose conditions set in Articles 13 and 14, as well as in Article 3 of the proposed annex. They also emphasized that tracking in the proposed Article 2.3 would be based on mutually agreed terms between the international institution and the country providing the material, recognizing the terms of the CBD. Following a remark by a developed country that the proposed annex creates parallel systems for managing Annex I and non-Annex I materials, the developing country said the proposal reflects a comprehensive way to handle PGRFA, placing all material under the authority of the Governing Body. Another developing country stressed that the IU should address all collections, stating that handling of non-Annex I material in the same way as Annex I material, if left to the discretion of the institutions (as provided for in one of the developed country proposals), would extend Annex I in a manner not negotiated by countries. Chair Gerbasi noted that the differentiation between non-Annex I material acquired before and after the IUs entry into force addresses the Contact Groups mandate to resolve the issue of ex situ collections held prior to the CBDs entry into force. A developing country explained that in their formulation both categories would be subject to the terms of the CBD.
With general consensus that language from this annex could be incorporated into the body of the IU, developed countries supported, inter alia: combining text from the proposal on non-Annex I material with text from an earlier proposal by a group of developed countries on providing such material at the discretion of the institution; distinguishing between PGRFA currently held in Centres of the CGIAR and material held in other institutions; and subjecting non-Annex I material to provisions in Articles 13 and 14. Delegates then discussed: moving language on non-Annex I, pre-IU material into Article 12; its handling in accordance with the provisions of the MS; and specification of only "in trust" materials.
Regarding the third article of the proposal, which sets the terms for a standard MTA for non-Annex I, pre-IU material, delegates discussed language regarding the recognition of the sovereign rights of the provider country and pre-existing property rights. The fourth article on management and administration generated discussion on the extent of the Governing Bodys mandate for providing management guidelines to other international institutions, financial implications and the responsibility of such institutions in preventing violations of the MTA. On this last point, a representative of the CGIAR noted practical difficulties in enforcement and highlighted a general policy agreed between the FAO and Centres for pursuing suspected violations. Chair Gerbasi, supported by a developing country, proposed examining how to include language on pursuing violations.
Chair Gerbasi then convened a small group of delegates to draft compromise language on how to include materials held by Centres and other international institutions. The small group met throughout the afternoon and late into the evening to outline positions based on previous discussions. Following these deliberations, Chair Gerbasi tabled a Chairs Proposal combining elements from the proposals on Article 12.2 and Annex V, which would become a new Article 8 under the IU.
Chairs Proposal for New Article 8: On Saturday, 10 February, delegates offered initial reactions to this proposal, and agreed to consider it as a basis for discussion during the contact groups next meeting. The final report of the meeting includes both the original text and a version reflecting comments by delegates. (Note: this article is not intended to replace existing Article 8.)
In a general comment on the proposal, a group of developed countries proposed including the article in Part IV of the IU, regarding the MS on access and benefit-sharing.
Article 8.1: This provision addresses recognition by the Parties of the CGIAR Centres collections as an important element of the IU and invites the Centres to sign agreements with the Governing Body, according to a list of terms and conditions, set in sub-provisions 8.1(a)-(f).
Delegates generally agreed to specify collections held in trust, but disagreed on a developing countrys proposal that the Governing Body, in signing agreements with the Centres, shall do so in accordance with a list of terms and conditions. A developed country stated that such text raises the previously discussed legal problem of imposing an agreement to independent entities and supported the Chairs existing language. Both options were bracketed.
Article 8.1(a): This provision states that Annex I material held by the Centres shall be provided according to the provisions of Part IV of the IU (MS).
Article 8.1(b): This provision treats non-Annex I, pre-IU material in accordance with a standardized MTA, the conditions of which are to be determined by the Governing Body at its first meeting, according to Article 13 and 14 of the IU and taking into account sovereign rights of the country of origin.
A regional group of developed countries favored a more precise formulation of the reference to Articles 13 and 14, and proposed that the issue of sovereign rights be treated under Article 11. Developing countries preferred that reference to relevant provisions of Articles 13 and 14 be replaced with language on obligations of recipients of material.
A developed country proposed that the Governing Body should decide by consensus and that the MTA cover both pre and post-IU material. Developing countries proposed that non-Annex I material should be legally accepted by Parties to an MTA before access is granted, to establish a link between the Centre and the person receiving the material.
Article 8.1(b)(i): This provision states that the Centres shall periodically inform the country in whose jurisdiction the material was collected, of MTAs regarding that material. A number of developed countries asked for provision of information to the country providing the PGRFA.
Article 8.1(b)(ii): This provision states that the Party in whose jurisdiction materials were collected shall be provided with samples on demand. It was supported by a number of developed countries.
Article 8.1(b)(iii): This provision states that benefits deriving from the commercial use of non-Annex I crops shall accrue to the mechanism mentioned in Article 17.2(h) of the IU, on the mechanism for receiving and utilizing financial resources for the IUs implementation, and be applied to the conservation and sustainable use of these crops in developing countries. During discussion: a developed country proposed its deletion; a regional group of developed countries noted links to Article 14; developing countries proposed reference to the regions from where the material was collected; and a delegate proposed inclusion of reference to countries with economies in transition.
Article 8.1(b)(iv): This provision recognizes that the Centres shall take all the relevant measures in cases of violation of the MTA. A developed country suggested, and Chair Gerbasi and a regional group of developed countries supported, alternate text noting that the Centres and the Governing Body shall develop appropriate guidelines to address cases of violation of MTAs, which would replace language stating that the Centres shall take all relevant measures.
Article 8.1(c): This provision states that the Centres recognize the authority of the Governing Body to provide policy guidance. Developing countries proposed reference to policy "direction and guidance."
Article 8.1(d): This provision states that the Centres remain in charge of their conservation facilities and manage the collections in accordance with internationally accepted standards.
Article 8.1(e): This provision regulates the possibility of technical support to the Centres by the IU secretariat, either directly or through an implementation mechanism. A number of developed countries supported reference to a direct or indirect use of the implementation mechanism.
Article 8.1(f): This provision gives to the IU secretariat the rights of access to the Centres facilities, and inspection of conservation and exchange activities.
Article 8.1(g): This provision regulates the evacuation and transfer of a Centres collection in case of obstruction or threat to its orderly maintenance, or force majeure. A regional group of developing countries questioned dealing with these agreements in such a general nature, noting that the Governing Body might want to discuss how such operations should be undertaken, and consider situations where force majeure may call for actions that might not be amenable to countries.
Article 8.2: This provision states that non-Annex I, post-IU material shall be accessed on mutually agreed terms decided between the source country and the receiving institution, in harmony with the CBD. A developed country proposed its deletion, with support from a number of other developed countries and a country with an economy in transition. Developing countries preferred its retention.
Article 8.3: This provision states that the Governing Body will also seek to establish agreements for the purposes stated in the article with other relevant international institutions.
Article 8.4: A developed country proposed this new provision, which would state that Parties are encouraged to provide facilitated access, as appropriate, to PGRFA of non-Annex I crops that are important to the programmes and activities of the CGIAR Centres, and noting that such access should be, to the extent possible, on terms consistent with the in-trust nature of the CGIAR ex situ collections.
A developing country suggested, and all agreed, to delete reference to "facilitated" access. He also proposed adding language on consistency with the provisions of the article, and this text remains in brackets.
Regarding the Contact Groups discussions on ex situ collections held by international institutions, the final report includes the original version of the Chairs Proposal for a new article and a version reflecting delegates comments on it.
IDENTIFICATION OF MATERIALS: On Thursday, 8 February, addressing a footnote in the text of Article 12, on further consideration of identification and end-use, a developed country introduced the issue of identification of materials covered by the IUs scope. She noted that certain federal States do not have the authority to commit to providing material outside their management and control, namely private property and material in control of tribes or constituent States. A developing country asked whether the scope of the MS would then be limited to national collections. Questions were raised on how arrangements for participation of other institutions could be made, whether entities unwilling to place their material in the MS would have access to other materials in the MS, and whether Parties would provide benefits in accordance with the IUs terms. Delegates noted that: developing countries hold most PGRFA in the public domain, which could result in unequal participation in the MS; the minimum governments can do is influence the private sectors participation in the MS; and implementation at the national level is the responsibility of governments.
Discussion proceeded to focus on issues surrounding access and ownership with regard to the private sector. A representative from an NGO, supported by an industry representative and a developing country, noted that according to Article 13.2(e), material under development would fall outside of the MS, and stressed that the private sector actually holds less then 2% of germplasm collections. The industry representative further noted that materials accessed by private enterprise are generally available through public genebanks. Delegates then addressed: the relation of private property to facilitated access; implications for commercial benefit-sharing to PGRFA under development; and collaboration between beneficiaries and the MS. A group of developed countries said that Article 12 did not address ownership or control, and that inclusion in the MS was not an issue of access.
One developed country then proposed inclusion of language in Article 12 stating that the MS shall encompass only those PGRFA that are under the management and control of a Partys national government. When asked how this proposal would impact Article 14.2(d)(iv), on commercial benefit-sharing, the delegate responded that governments could encourage partnerships and other benefit-sharing arrangements that would not be in conflict with the MS. Developing countries stated that this proposal was too restrictive and implied that the MS will become an exchange process between governments. Another developed country said the proposal excluded material exchanges within the private sector because their inclusion would create problems for implementation of relevant benefit-sharing provisions, exchanges of material would be difficult to track, and payment of royalties would be hard to enforce. An NGO representative said that governments hold the power to determine how material is accessed and used by the private sector, that tracking would not be required under the MS and that this provision should not be connected to 14.2(d)(iv).
The proposal was modified to suggest that the MS would at a minimum encompass those PGRFA that are under the management and control of the national government of a Party, and that Parties may, at their discretion, include in the MS material that is not under the management and control of the national government. Delegates still could not agree, citing problems with designating materials for the MS, the need to address the issue under Article 13, and dispute over the extent to which tracking for benefit-sharing would be required. The modified text remains in brackets for further consideration.
INFORMATION ON PGRFA: A group of developed countries proposed a new provision for Article 12 on providing information, such as contact details, for obtaining PGRFA available for facilitated access. Several delegates questioned how the provision related to other information provisions under Articles 10 (World Information Network/[Information Systems] on PGRFA), 13 and 14.2(a), on exchange of information for benefit-sharing in the MS, and whether such a provision should be included under Article 13, given its focus on accessed PGRFA. The group of developed countries clarified that the provision intends to identify how to access PGRFA, while Article 10 addresses knowledge of PGRFA, Article 13 addresses information to accompany accessed material and Article 14.2(a) addresses more substantive information related to benefit-sharing. Delegates agreed to consider placing this text under Article 13, and deferred further discussion.
The proposed provision states that Parties will provide information on PGRFA listed in Annex I that is available for facilitated access. Such information will include contact details for how to obtain materials to be provided to the information system referred to in Article 10. It also references CGIAR Centres making such information available.
ARTICLE 17 (GOVERNING BODY)
On Monday and Tuesday, 5-6 February delegates discussed Article 17. Following these deliberations, a consolidated version of Article 17 was distributed on Wednesday, 7 February, for consideration and revision at the next Contact Group meeting.
ARTICLE 17.1: Delegates agreed to defer discussion on Article 17.1, on the establishment of the Governing Body, until agreement is reached on the IUs legal basis.
ARTICLE 17.2: Regarding Article 17.2s chapeau on the Governing Bodys functions, the group agreed to reformulate the provision such that the Governing Body shall promote the IUs full implementation, keeping in view its objectives. The provision then segues into the Governing Bodys particular tasks listed in the articles sub-provisions.
Article 17.2(a) (formerly 17.2(c)): This provision provides for guidance and adoption of recommendations for the IUs implementation. Following discussion, delegates agreed to renumber it to reflect its importance, and to include the functions of former Article 17.2(c), on policy direction and monitoring, and former Article 17.2(k), on adoption of recommendations. The final text states that the Governing Body shall provide policy direction, guidance, and monitoring, and also adopt recommendations for the IUs implementation and the operation of the MS.
Article 17.2(b) (formerly 17.2(a)): This provision addresses the state of PGRFA and its implications for world food security. The formulation changed slightly following a remark that the CGRFA is formally responsible for reviewing such matters. The final text states that the Governing Body shall take into account the state of PGRFA and its implications for world food security.
Article 17.2(c) (formerly 17.2(b)): This provision addresses the Governing Bodys role in reviewing and updating the Global Plan of Action (GPA). It remains in brackets since delegates have still not resolved in Article 8 (GPA) whether the GPA would be guided by the IUs Governing Body or the CGRFA. During discussion, two delegates also noted that the GPA itself states that it will be monitored and guided by the CGRFA.
Article 17.2(d): This provision states that the Governing Body will adopt plans and programmes for the IUs implementation. It was approved with only a minor change.
Article 17.2(e): This provision addresses the adoption and periodic review of the funding strategy for IUs implementation. The original text also provided for adoption of the IUs budget. The group discussed whether it was appropriate for the Governing Body or the FAO Council to adopt the budget. The FAOs Legal Counsel noted that the answer depends on the relationship between the IU and FAO. The group finally agreed with a Chairs proposal to split the provision into two sub-provisions and to bracket the sub-provision on the adoption of the budget (Article 17.2(f)). The final text states that the Governing Body shall adopt and periodically review the funding strategy for the IUs implementation.
Article 17.2(f): This provision, on the adoption of the IUs budget, remains in brackets pending a decision on the IUs legal basis.
Article 17.2(g) (formerly 17.2(f)): Regarding this provision, on the establishment of subsidiary bodies, delegates approved a proposal to include consideration of their mandates and composition. The final text states that the Governing Body shall consider and establish such subsidiary bodies as may be necessary, and their respective mandates and composition.
Article 17.2(h): This provision, on the establishment of a mechanism, such as a Trust Account, for receiving and utilizing financial resources, was approved at a previous meeting.
Article 17.2(i): This provision, on establishment of cooperation with other international organizations, was approved at a previous meeting.
Article 17.2(j): This provision provides for consideration and adoption of amendments to IU. During discussion, one country proposed bracketing the entire provision since Article 20 (Amendments) has yet to be discussed. Another delegate proposed deletion, to which others objected. Delegates ultimately agreed to use CBD language. The final text states that the Governing Body shall consider and adopt amendments to the IU, as required, in accordance with Article 20.
Article 17.2(k) (formerly 17.2(j)[sic]): This provision provides for periodic review and adoption of amendments to the IUs annexes. Although some delegations suggested bracketing the provision until Article 21 (Amendments of Annexes) is discussed, it was noted and agreed that the Governing Body would still review and amend annexes, regardless of any substantive change to Article 21.
The final text states that the Governing Body shall periodically review and, as necessary, adopt amendments to the annexes to the IU, in accordance with the provisions of Article 21.
Article 17.2(l): This new provision provides for consideration of a strategy to encourage voluntary contributions with reference to Articles 14 (Benefit-sharing) and 16 (Financial Resources). During the debate one regional group of developed countries recalled prior agreement that references to voluntary benefit-sharing contributions by the food industry and to forms of IPR restricting use of PGRFA under Article 14.2(d)(iv), on commercial benefit-sharing, would be moved to Article 17.2. However, four developed countries reiterated their continued reservations to the overall text of Article 14.2(d)(iv). Delegates agreed to include general language proposed by Chair Gerbasi.
The final text states that the Governing Body shall consider modalities of a strategy to encourage voluntary contributions, in particular, with reference to Articles 14 and 16.
Article 17.2(m) (formerly 17.2(l)): This provision, on performing other functions as necessary to fulfill the IUs objectives, was approved without comment.
ARTICLE 17.3: This provision, which states that the Governing Body shall be composed of all Parties to the IU, was approved without debate.
ARTICLE 17.4: This provision details Parties representation and participation of delegates, alternates, experts and advisers in the sessions of the Governing Body, providing for one vote for each Party. A footnote subjects the provision to final resolution of the IUs legal basis, following the remark of a group of developed countries stressing the particular situation of regional organizations with multiple Member States, arguing that they should not be accorded only one vote.
ARTICLE 17.5: During discussion on Article 17.4, delegates agreed to include a new provision to regulate observers representation at meetings. It reflects CBD language, providing that the UN and its agencies may be represented as observers at meetings of the Governing Body. Any other body or agency, governmental or non-governmental, qualified in fields relating to conservation and sustainable use of PGRFA may also be admitted after it has informed the secretariat, unless at least one-third of the Parties present object. The admission and participation of observers is subject to the Governing Bodys rules of procedure.
ARTICLE 17.6 (FORMERLY ARTICLE 17.5): This provision addresses decision-making and voting procedures under the Governing Body. During a long discussion on the issue, the following options were supported:
- providing that decisions regarding amendments to or revisions of Annexes I (List of Crops) and V (Conditions for Participation of International Institutions in the MS) will be adopted by consensus;
- providing that the two-thirds majority vote apply except where consensus is specifically required;
- providing that all decisions will be approved by consensus as per the CBD; and
- providing that consensus will be the general rule except where noted otherwise.
The final text includes two bracketed options. The first one states that Parties shall make every effort to reach agreement on all matters by consensus. If, nevertheless, no agreement can be reached, the decision shall be taken by a two-thirds majority of the Parties present and voting, unless where specifically stated that consensus is required. The second option would include Article 17.9 (of the final text), and state that the Governing Body shall adopt by consensus rules of procedure for itself and any subsidiary body, as well as financial rules, in consistency with the IU.
ARTICLE 17.7 (FORMERLY 17.6): This provision, stating that "Parties present and voting" shall mean Parties present and casting an affirmative or negative vote, was approved without debate.
ARTICLE 17.8 (FORMERLY 17.7): This provision regulates membership rights and obligations of FAO Member Organizations and their Parties in accordance with the FAO Constitution and General Rules. The provision was approved with a footnote that subjects it to final resolution of the IUs legal basis, following a remark on the particular situation of regional organizations concerning voting rules.
ARTICLE 17.9 (FORMERLY 17.8): Discussed within the context of Article 17.5, this provision, which remains in brackets subject to the result of negotiations on Articles 20 and 21, states that the Governing Body may adopt and amend its own rules of procedure, which shall not be inconsistent with the IU.
ARTICLE 17.10: This new provision, proposed by a developed country, states that the presence of the majority of the Parties shall be necessary to constitute a quorum. Delegates were unable to agree whether a quorum would constitute a simple majority or a two-thirds majority, and decided to revisit the provision later.
ARTICLE 17.11 (FORMERLY 17.9): This provision regulates the timeframe for the Governing Bodys regular sessions (at least once every two years). Following a suggestion of a group of developed countries, delegates also agreed that the sessions should be held back to back with the CGRFAs regular sessions.
ARTICLE 17.12 (FORMERLY 17.10): This provision, on convening special sessions of the Governing Body at the request of at least one-third of Parties, was approved without discussion.
ARTICLE 17.13 (FORMERLY 17.11): This provision regulates the election of the Governing Bodys Bureau. Several countries posed questions regarding the number of Vice Chairs, allowance of consecutive terms, determination of when terms would start and the length of terms. It was agreed that such issues would be detailed in the rules of procedure. The final text states that the Governing Body shall elect its Chairs and Vice Chairs (Bureau), in conformity with its rules of procedure.
ARTICLE 18 (SECRETARIAT)
Article 18, on the appointment of the secretary, secretariat, staff and functions, was discussed on Tuesday and Wednesday, 6-7 February.
ARTICLE 18.1: During discussions on Article 18.1, on appointment of the secretary, a developed country proposed replacing Articles 18.1, 18.2, on secretariat staff, and 18.3, on its responsibilities and functions, with language stating that the CGRFA Secretariat shall act as the secretariat, to which several countries objected. Delegates then discussed the need for staff, appointment by the Governing Body or the FAO Director-General, implications of the IUs legal basis, and opportunities to link the IU with the FAO and the CBD.
Delegates agreed to bracket two options. The first uses the original text stating that the FAO Director-General will appoint the secretary with the approval of the Governing Body or Bureau. The second states that the CGRFA Secretariat shall serve as the secretariat to be assisted by staff as required. The formulations also reflect the need to consider a final decision on the IUs legal basis.
ARTICLE 18.2: Article 18.2, on secretariat staff, was approved with a minor amendment. The article states that the secretary shall be assisted by such secretariat staff, as may be required, with the approval of the Governing Body.
ARTICLE 18.3: Regarding Article 18.3, a group of developed countries proposed additional text on the secretariat being able to delegate administrative tasks associated with the MS. After some discussion, delegates agreed to text stating that some activities could be delegated or shared by the secretariat, under conditions to be approved by the Governing Body.
ARTICLE 18.4 (FORMERLY 18.3): After some discussion on Article 18.4 (the responsibilities of the secretariat), delegates agreed on text stating that the secretariat shall: arrange for and service meetings of the Governing Body; assist the Governing Body in carrying out its functions and responsibilities, including specific tasks assigned by the Governing Body; and report to the Governing Body on its activities.
ARTICLE 18.5 (FORMERLY 18.4): Article 18.5, on dissemination of materials, was approved without comment. It states that the secretariat shall disseminate to all Parties Governing Body decisions and information received from Parties.
ARTICLE 18.6 (FORMERLY 18.5): Article 18.6, on translation of documentation, was approved with the reference to official FAO languages bracketed pending resolution of the IUs legal basis. The provision states that the secretariat shall provide translations of documentation for Governing Body meetings in the official FAO languages.
ARTICLE 18.7 (FORMERLY 18.6): Article 18.7, on cooperation with other organizations, was approved without comment. The provision states that the secretariat shall cooperate with other organizations and bodies, particularly the CBD secretariat and the COP, in achieving the IUs aims.
ARTICLE 20 (AMENDMENTS OF THE UNDERTAKING)
Article 20, addressing the process of making and approving amendments to the IU, was discussed by the Contact Group on Wednesday, 7 February.
ARTICLE 20.1: Regarding Article 20.1, on proposing amendments, delegates agreed to bracket reference to communicating amendments to the FAO Director-General, pending resolution of the IUs legal status. The final text states that any Party may propose an amendment to the IU and includes a bracketed reference to communicating them to the FAO Director-General.
ARTICLE 20.2: Article 20.2 was agreed without substantive discussion. The article states that amendments shall be adopted at a meeting of the Governing Body, and that such amendments should be communicated to Parties at least six months prior to such a meeting.
ARTICLE 20.3: Regarding Article 20.3, on the terms for reaching agreement on amendments, several delegates suggested deferring discussion upon resolution of Article 17.6, on decision-making in the Governing Body. A number of countries stated that amendments should be adopted by consensus rather than by a two-thirds majority. Others noted that Parties not accepting an amendment would not be bound by it according to Article 20.4. The final text contains two bracketed proposals. The first states that Parties shall try to reach decisions by consensus and if all such efforts are unsuccessful, adoption of the amendment shall require a two-thirds majority of the Parties present and voting (with at least two-thirds of all Parties present), except where consensus is specifically required. The second option requires all amendments to be adopted by the consensus of all Parties to the IU.
ARTICLE 20.4: Regarding Article 20.4, on the entering into force of adopted amendments, delegates debated over whether language was contingent upon resolution of Article 20.3, and generally agreed to the text as drafted. The final text states that any amendment adopted by the Governing Body shall come into force among Parties having accepted it 90 days after the deposit of instruments of ratification by two-thirds of the Parties. After debate over the meaning of "accepted" on Saturday, 10 February, the term was bracketed.
ARTICLE 20.5: Article 20.5, on avoidance of repetitious voting, was approved without discussion. The text states that an instrument deposited by a member organization (such as a regional economic integration organization) shall not be counted as additional to those deposited by its member States.
ARTICLE 21 (AMENDMENTS OF ANNEXES)
Discussion on Article 21 took place on Wednesday, 7 February. The article draws on the text of CBD Article 30 (Adoption and Amendment of Annexes).
ARTICLE 21.1: This provision, stating that the annexes shall form an integral part of the IU, was approved without debate.
ARTICLE 21.2: Following discussion and two proposed formulations by a developing country, three options were bracketed: the formulation in the Composite Draft Text stating that amendments to annexes shall be proposed and adopted according to the procedures set out in Article 20 (Amendments of the Undertaking); a formulation stating that amendments shall be proposed according to the procedures set out in Article 20; and a formulation stating that amendment of annexes shall be adopted by consensus of all Parties to the IU.
ARTICLE 21.3: Regarding this provision, on the entry into force of amendments to the annexes, delegates agreed to use the procedures detailed in Article 20.4.
PROPOSED ARTICLE (SUPPORTING COMPONENTS OF THE MS)
On Wednesday, 7 February, a regional group of developed countries proposed a new article on supporting components of the MS for insertion in Part IV of the IU (encompassing Articles 11, 12, 13 and 14). The proposal had originally been tabled at the Third Contact Group Meeting in Tehran for consideration by other delegations. The group proposing the new article explained that it further develops the Montreux Elements on information systems, PGRFA networks and partnerships in research and technology development. Several developing countries expressed concern over:
- the provisions relation to Articles 9 (International Network of PGRFA/International PGR Networks), 10 (World Information Network/Information Systems on PGRFA) and 14 (Benefit-sharing);
- potential confusion over the provisions relevance to crops not included under the MS; and
- perception of partnerships and networks as being integral to, and not simply supporting components of, the MS.
Regarding the specific components, a developed country highlighted that: information systems could serve as a supporting component to facilitate the exchange of information referenced in Article 14.2; networks could serve as a supporting component for access to and transfer of technology mentioned in Article 14.2; and partnerships for research and development would not be a supporting component since they are explicitly referred to in Article 12 and are thereby part of the MS. Upon suggestions to consider Articles 9 and 10 first, further discussion was deferred.
On Monday, 5 February, the technical group met in an evening session to identify terms requiring definition under the IU. Delegates proposed terms for a provisional list and noted the need to distinguish among those terms contained in agreed text, in bracketed text (denoted in ) and in text yet to be negotiated (denoted with an *). On Wednesday, 7 February, the group met again and refined the list of terms to include: in situ conservation; ex situ conservation; PGRFA (which would take into account [genetic parts or components]); [germplasm]; [genetic material]; center of origin; center of crop diversity; traditional knowledge; crops (recognizing the need to consider various usages, such as crop vulnerability and neglected crops); rights-holder; Parties; variety (recognizing the need for definitions of varieties, improved varieties and farmers varieties*); [ex situ collection]; underutilized species*; management on-farm*; and living modified organisms*.
The group met on Friday, 9 February, to start defining terms in agreed text, referring to definitions used in other relevant agreements, such as the CBD. The definitions of texts discussed are as follows.
IN SITU CONSERVATION: "The conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated plant species, in the surroundings where they have developed their distinctive properties."
EX SITU CONSERVATION: "The conservation of plant genetic resources for food and agriculture outside their natural habitat."
PGRFA: "The reproductive or vegetative propagating material of plant species [, including their genetic components,] of actual or potential value for food and agriculture."
CENTRE OF ORIGIN: The two bracketed options for this definition are: 1) "the [geographical] area where an individual plant taxon [originated]/[developed its distinctive properties]"; and 2) "the place where the wild progenitor of the cultivated species occurs in nature."
CENTRE OF CROP DIVERSITY: The three bracketed options for this definition are: 1) "the region where maximum diversity of the species occurs in in situ conditions"; 2) "a geographic area containing a high level of genetic diversity for one or more crop species"; and 3) "a geographic region in which the greatest variability of a crop occurs."
During the closing session, Chair Gerbasi raised the issue of when and where the next Contact Group session would be held. He announced that the Government of Italy had expressed its interest in hosting the meeting outside of Rome (Spoletto and Assisi were mentioned as possibilities) from 23-28 April 2001. Developing countries requested the opportunity to meet for consultations on 22 April 2001.
A regional group of developed countries requested that the legal group meet at the next session, and a regional group of developing countries requested additional resources for two legal experts. The Chair of the technical group on definitions noted that the group would communicate inter-sessionally and requested that it convene on 22 April 2001, to continue its work. The developing country and technical group requests for meeting time were generally approved.
The group reviewed the text of articles addressed during the week and made general comments and minor corrections. Chair Gerbasi thanked the delegates, conference staff and the Secretariat for their hard work and adjourned the meeting at approximately 2:30 pm.
A BRIEF ANALYSIS OF THE CONTACT GROUP MEETING
As delegates left FAO headquarters at the meetings close, one participant highlighted the IUs appropriate designation as an "undertaking." The weeks discussions again revealed central divides between groups of countries and the extreme complexity of issues under consideration. While the meetings in Tehran and Neuchtel struggled with the nuances of IPR and the linkages between access and benefit-sharing, work in Rome endeavored to untie the knots around the IUs legal basis and international ex situ collections. Many of the more procedural discussions on the Governing Body and secretariat were left pending resolution of the IUs final institutional home. Bright spots did appear during discussions on definitions and the specific functions of the Governing Body, and many appreciated the in-depth exchange of views on inclusion of CGIAR Centres. This brief analysis will address the trickier issues encountered during discussions on institutional issues and the larger substantive debates. It will then attempt to provide an overall picture of where the negotiations stand as the Contact Group looks forward to its next session in April.
Much of the meeting was devoted to sorting out procedural and legal matters regarding voting, the Governing Body, secretariat and the IUs legal basis (i.e., relationship to the FAO and the CBD). While progress was made in defining the roles of the Governing Body and the secretariat, voting rules were a predictably difficult issue, as delegates could not agree on how to agree; that is on how and where decisions should be made by consensus or majority voting. Some suggested borrowing a page from the CBD negotiations by relegating voting procedures on some issues to the rules of procedure to be defined after the IUs entry into force. However, delegates failed to note that such discussions on voting under the CBDs rules of procedure are still outstanding, thereby leaving decision-making by consensus as the default.
The IUs legal basis also led to difficult discussions although surprisingly of a more technical than political nature. Some participants had long been awaiting a contentious turf battle as to whether the IU would be a protocol to the CBD or come under the auspices of the FAO. There was general agreement on the need for ties with both, possibly as an FAO implementing agreement to the CBD. The real questions that delegates could not answer and even the Secretariat struggled with were the specific budgetary and governance implications if the IU was placed under the FAO Constitution or not. One delegate observed that since a predominance of delegates as well as the Secretariat staff came from the CGRFA and FAO, there was an implicit assumption that the FAO would be the default institutional home. Hopefully, the presence of experts for the legal working group at the Contact Groups next session will be able to provide further guidance on the more technical and procedural issues.
COLLECTIONS, DESIGNATIONS AND DEFINITIONS
The key substantive discussion during this meeting involved how to include the collections of the CGIAR Centres and other international institutions under the IU. At one point, delegates debated whether the matter was a political or a legal one, and, in the end, determined that it is both. There was general political agreement, including from CGIAR representatives themselves, that the Centres should come under the IU. This now requires drafting appropriate text, which is ultimately a technical matter of closing any legal loopholes. The larger political issue involved the inclusion of terms and how to apply to non-Annex I material, which would include resolving the longstanding question of determining the status of ex situ collections held prior to the CBDs entry into force (and its consequent recognition of national sovereignty over genetic resources). Thus the larger debate requires negotiating an essentially new system to encompass different, and arguably undefined, property regimes over internationally held PGRFA. To further add to the list of complications is the consideration of the implications regarding the contents of Annex I (and thereby the number of non-Annex I crops). Provided the Group can resolve the issue of how to incorporate such collections, the issue remains as to the question of whether and how non-Parties can access such material, which hits to the legal question of whether a subset of States under the CGRFA can set conditions on PGRFA now held in trust for the international community.
The issue of designated collections also gave rise to a moment of heated debate. Many developing countries objected to statements by some developed countries noting that they could not obligate private property holders to provide access to their materials. Such developing countries, where public institutions hold the majority of their PGRFA, noted the inherent imbalance in such a system. Ironically, a concerted, if not coordinated, push by the NGO and industry representatives quelled the debate by noting that private sector holdings are generally declining and that resources they use are generally already available in public collections.
On the issue of definitions, delegates noted with pleasant surprise that discussions had proceeded much more easily than expected. Many had feared that politically contentious issues in the body of the IU would be drawn into the definition of terms to be used. However, the technical group proceeded on a relatively smooth basis, drawing from and modifying terminology from other legal texts and excluding terms more appropriate for interpretation at the national level. While significant work remains, initial progress was encouraging.
ROME WASNT BUILT IN A DAY
Indeterminate resolution of numerous issues left a number of delegates pondering how to pick through the pieces in approaching the next meeting. This weeks discussions added a host of unresolved issues to the existing list from Tehran and Neuchtel, which includes the tangled web of linkages between facilitated access and benefit-sharing, especially with regard to IPR concerns. Such issues encompass both political and technical dimensions requiring fundamentally new arrangements in international law. While several delegates noted the reiteration of debates held two, four or even six years ago, there was a general impression that such discussions and the positions within them, were becoming clearer and more refined.
In view of this extended history, the Contact Group displayed a surprising lack of political urgency, despite a flurry of excitement and even desperation seen at the close of the Neuchtel discussions in anticipation of the FAO Councils subsequent review. Even such clich expressions as "political will" and negotiating in "trust and good faith" were lacking from the dialogue, and arguably absent in the frequent swapping of almost mutually unacceptable proposals. Some suggested that the process was reverting to its usual nature, having been granted several more months of breathing room, following the FAO Councils recent decision to extend the life of the IUs negotiations.
Certainly the issues are not new, and a few participants were critical about the lack of preparation by numerous delegations on several areas addressed this week. Some applauded Chair Gerbasis decision to move discussions on CGIAR ex situ collections into a small group, and then cringed as delegations reverted back to their original positions when offering comments on the Chairs compromise proposal. One delegate suggested that the sluggish pace of discussions partially reflects a different political culture under the FAO, which differs significantly from the often more intensive pace of the international environmental legal arena, where conventions and protocols comparatively have been generated at a much faster pace.
In closing, one hopeful delegate noted that questions of pace and progress are always relative. While this meeting further clarified the basic foundational issues, establishing such a multifaceted and unprecedented legal architecture requires patience and perseverance. Looking ahead to the Contact Groups next session in April, delegates must balance their cumulative efforts to define these complex issues with a renewed sense of political urgency if this Undertaking is to be successful.
THINGS TO LOOK FOR
WORKSHOP ON INTERLINKAGES SYNERGIES AND COORDINATION AMONG MULTILATERAL ENVIRONMENTAL AGREEMENTS: This informal regional workshop will be held from 26-27 February 2001, in Kuala Lumpur, Malaysia. For more information, contact: Motoyuki Suzuki, United Nations University; tel: +81-3-3499-2811; fax: +81-3499-2828; e-mail: [email protected]; Internet: http://www.unu.edu
CONFERENCE ON TRADE AND ENVIRONMENT BRIDGING GAPS AND MOVING FORWARD: This conference will take place from 8-9 March 2001, in Geneva. It is being organized by the Global Environment and Trade Study (GETS) and the World Trade Institute (WTI). For more information, contact: Monica Araya, GETS; tel: +1-203-432-5216; fax: +1-203-432-3817; e-mail: [email protected]; Internet: http://www.gets.org/Geneva2001.htm
INFORMAL CONSULTATION ON THE PROPOSED GLOBAL STRATEGY FOR PLANT CONSERVATION: This consultation will be held on 11 March 2001, in Montreal, Canada. For more information, contact: the CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: [email protected]; Internet: http://www.biodiv.org
SIXTH MEETING OF THE CBDS SUBSIDIARY BODY FOR SCIENTIFIC, TECHNICAL AND TECHNOLOGICAL ADVICE: SBSTTA-6 will meet from 12-16 March 2001, in Montreal. For more information, contact: the CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: [email protected]; Internet: http://www.biodiv.org
PANEL OF EXPERTS ON ACCESS AND BENEFIT SHARING: This panel will meet from 19-22 March 2001, in Montreal. For more information, contact: the CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: [email protected]; Internet: http://www.biodiv.org
ANALYZING THE INTERACTION BETWEEN AGRICULTURAL PRACTICES AND THE SUSTAINABLE USE OF BIODIVERSITY: This workshop will be held in Brussels, Belgium, on 23 March 2001. For more information, contact: Laura Bugua, European Centre for Nature Conservation; tel: +31-13-466-3240; fax: +31-13-466-3250; e-mail: [email protected]; Internet: http://www.ecnc.nl/doc/projects/agrobiws.html
THIRD MEETING OF THE INTERIM COMMISSION ON PHYTOSANITARY MEASURES: ICPM-3 will be held from 2-6 April 2001, in Rome. For more information, contact: Robert Griffin, AGPP, FAO; tel: +39-065705-4812; fax: +39-065705-6347; e-mail: [email protected]; Internet: http://www.fao.org/ag/agp/agpp/PQ/Default.htm
SIXTH MEETING OF THE CONTACT GROUP ON THE REVISION OF THE IU: IU-CG6 will be held in Italy from 23-28 April 2001. For more information, contact: Clive Stannard, CGRFA, FAO; tel: +39-06570-55480; fax: +39-06570-56347; e-mail: [email protected]; Internet: http://www.fao.org/ag/cgrfa/meetings.htm
FIRST MEETING OF THE INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE: The Committees First Meeting within the World Intellectual Property Organization will be held from 30 April to 3 May 2001, in Geneva. For more information, contact: WIPO Information Center, tel: +41-22-338-8181; e-mail: [email protected]; Internet: http://www.wipo.org