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Summary report, 15–23 May 1997

7th Session of the CGRFA

The Seventh Session of the Commission on Genetic Resources for Food and Agriculture(CGRFA-7) was held at FAO Headquarters in Rome from 15-23 May 1997. During themeeting, delegates continued negotiations on the revision of the InternationalUndertaking on Plant Genetic Resources in harmony with the Convention on BiologicalDiversity. The Commission also established the mechanisms that will allow it to carry outits broadened mandate effectively, considered reports from FAO and internationalorganizations, and addressed follow-up to the Fourth International Technical Conferenceon Plant Genetic Resources (ITCPGR-4), which was held in Leipzig, Germany, from 17-23 June 1996.

Two working groups addressed various aspects of the International Undertaking. TheWorking Group on Scope and Access worked on the principles and procedures that mightunderlie systems of access to plant genetic resources for food and agriculture (PGRFA).Progress on this issue since the last negotiating session was most clearly reflected by thefact that a vast majority of the participants agreed, in principle, to establish a multilateralsystem to facilitate access to PGRFA in an efficient, effective and transparent way. TheWorking Group on Farmers’ Rights clarified positions as countries gained a betterunderstanding of the precise objectives of various groups and the logical limits of thoseobjectives. Given that the negotiations on the Iternational Undertaking took up the bulkof substantive debate, it is not surprising that the Commission agreed to call for anotherextraordinary session devoted exclusively to the IU as a matter of first priority.

A BRIEF HISTORY OF THE PROCESS

The FAO established the intergovernmental Commission on Plant Genetic Resources(CPGR) in 1983. Renamed the Commission on Genetic Resources for Food andAgriculture (CGRFA) in 1995, the Commission is currently comprised of the 151member States of the FAO. The CGRFA coordinates, oversees and monitors thedevelopment of the Global System for the Conservation and Utilization of Plant GeneticResources for Food and Agriculture, which is comprised of the Commission itself and thenon-binding International Undertaking (IU) on Plant Genetic Resources, the rollingGlobal Plan of Action and International Fund for Plant Genetic Resources (PGR), theWorld Information and Early Warning System (WIEWS), Codes of Conduct andGuidelines for the Collection and Transfer of Germplasm, the International Network ofEx Situ Collections under the auspices of the FAO, an international network ofin situ conservation areas and crop-related networks.

THE INTERNATIONAL UNDERTAKING: The International Undertaking, thefirst comprehensive agreement on PGR, was established in November 1983, by FAOConference Resolution 9/83. Its objective is to ensure that plant genetic resources —especially species of present or future economic and social importance — are explored,collected, conserved, evaluated, utilized and made available for plant breeding and otherscientific purposes. It was originally based on the principle that PGR should be“preserved … and freely available for use, for the benefit of present and futuregenerations” as part of the common “heritage of mankind.” This principle, however, wassubsequently 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 since eightdeveloped countries formally recorded reservations. Over the years, through a series ofadditional interpretive resolutions, the IU has achieved wider acceptability. As of May1997, 111 countries had adhered to the IU, with Brazil, Canada, China, Japan, Malaysiaand the US as notable exceptions.

The 13 years since the IU’s adoption have seen heightened interest in and awareness ofthe issue of biodiversity, culminating in the entry into force of the Convention onBiological Diversity (CBD) in 1993. Advances in biotechnology and developments inrelated matters concerning intellectual property rights have added urgency, andcomplications, to the need to further develop an international regime relating to themanagement of PGR. Countries are now looking anew at the IU as a possible vehicle forthis purpose.

In April 1993, the Commission considered the implications of the 1992 UN Conferenceon Environment and Development (UNCED), and the CBD in particular, for the IU.Recognizing that the CBD would play a central role in determining policy on PGR, theCommission 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 aFirst Negotiating Draft, which incorporated the three interpretative annexes into the IU,and provided a more rational structure, grouped into 14 articles.

SIXTH SESSION OF THE CGRFA: The Commission on Plant GeneticResources (CPGR-6) held its sixth regular Session at FAO Headquarters in Rome in June1995. In addition to its regular agenda, the Commission considered a Second NegotiatingDraft, which included the comments made and alternative wording suggested byCommission members to the First Negotiating Draft. At this meeting, the Commissionfocussed its discussions on Articles 3, 11 and 12 (pertaining to scope, access andFarmers’ Rights, respectively), and undertook a first reading of the Preamble. Proposalsmade by Commission members were integrated into a Third Negotiating Draft. InOctober 1995, the FAO Conference (Resolution 3/95) agreed to broaden the mandate ofthe Commission on Plant Genetic Resources to cover all aspects of genetic resources ofrelevance to food and agriculture, and to change its name to the Commission on GeneticResources for Food and Agriculture. The implementation of the broadened mandate is ona step-by-step basis starting with animal genetic resources, and should not interfere withthe negotiations for the revision of the International Undertaking. The Conference furtheragreed that the broadened Commission may establish “intergovernmental technicalsectoral working groups…, with appropriate geographical balance, to assist [the CGRFA]in the areas of plant, animal forestry and fisheries genetic resources.”

SECOND EXTRAORDINARY SESSION OF THE CGRFA AND THE FOURTHINTERNATIONAL TECHNICAL CONFERENCE ON PGR: The CGRFA held itsSecond Extraordinary Session at FAO Headquarters in Rome from 22-27 April 1996 inorder to address several issues in preparation for the Fourth International TechnicalConference on Plant Genetic Resources (ITCPGR-4) held in Leipzig, Germany, from 17-23 June 1996. ITCPGR-4 agreed on an international programme for the conservation andutilization of plant genetic resources for food and agriculture. Representatives of 148States adopted the Leipzig Declaration, the Conference’s key political statement, and aGlobal Plan of Action (GPA), the Conference’s main substantive output. Contentiousissues, including financing and implementation of the GPA, technology transfer,Farmers’ Rights and access and benefit-sharing, were the subject of ongoing contactgroup consultations. Their resolution, adopted as a package by the final plenary,represented a careful compromise of strongly held positions. Delegates were alsopresented with the first comprehensive Report on the State of the World’s Plant GeneticResources and a progress report on the revision of the International Undertaking.

THIRD EXTRAORDINARY SESSION OF THE CGRFA: The CGRFA held itsThird Extraordinary Session at FAO Headquarters in Rome from 9-13 December 1996.During the week-long meeting, delegates focused on Farmers’ Rights, scope and accessto genetic resources in relation to the revision of the International Undertaking. Buildingon the results of a two-day meeting of the Commission’s standing Working Group,during which several countries put forward proposals, delegates confronted both thepolitical and intellectual complexities as well as time constraints of revising theInternational Undertaking.

Although the meeting technically constituted the third formal negotiating session for therevision of the IU, CGRFA-EX3 can be characterized as a constructive pre-negotiationexercise. The meeting did not produce any new negotiated text, but it did make progresson difficult and often divisive issues. Many delegations moved beyond political posturingin order to clarify the concerns and interests that underlie their different positions. The G-77, the EU and the US each tabled text on Farmers’ Rights to serve as the foundation forthe Commission’s future deliberations on this issue. CGRFA-EX3 also commissioned a“two-step” study that would set out the various options for scope and access under arevised IU, and assess the viability of these arrangements. Finally, the Commissionagreed on arrangements for the continuation of its work on the IU.

THE FAO GLOBAL SYSTEM

The FAO established the intergovernmental Commission on Plant Genetic Resources(CPGR) in 1983. Renamed the Commission on Genetic Resources for Food andAgriculture (CGRFA) in 1995, the Commission is currently comprised of the 151member States of the FAO. The CGRFA coordinates, oversees and monitors thedevelopment of the Global System for the Conservation and Utilization of Plant GeneticResources for Food and Agriculture, which is comprised of the Commission itself and thenon-binding International Undertaking (IU) on Plant Genetic Resources, the rollingGlobal Plan of Action and International Fund for Plant Genetic Resources (PGR), theWorld Information and Early Warning System (WIEWS), Codes of Conduct andGuidelines for the Collection and Transfer of Germplasm, the International Network ofEx Situ Collections under the auspices of the FAO, an international network ofin situ conservation areas and crop-related networks.

THE INTERNATIONAL UNDERTAKING: The International Undertaking, thefirst comprehensive agreement on PGR, was established in November 1983, by FAOConference Resolution 9/83. Its objective is to ensure that plant genetic resources —especially species of present or future economic and social importance — are explored,collected, conserved, evaluated, utilized and made available for plant breeding and otherscientific purposes. It was originally based on the principle that PGR should be“preserved … and freely available for use, for the benefit of present and futuregenerations” as part of the common “heritage of mankind.” This principle, however, wassubsequently 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 since eightdeveloped countries formally recorded reservations. Over the years, through a series ofadditional interpretive resolutions, the IU has achieved wider acceptability. As of May1997, 111 countries had adhered to the IU, with Brazil, Canada, China, Japan, Malaysiaand the US as notable exceptions.

The 13 years since the IU’s adoption have seen heightened interest in and awareness ofthe issue of biodiversity, culminating in the entry into force of the Convention onBiological Diversity (CBD) in 1993. Advances in biotechnology and developments inrelated matters concerning intellectual property rights have added urgency, andcomplications, to the need to further develop an international regime relating to themanagement of PGR. Countries are now looking anew at the IU as a possible vehicle forthis purpose.

In April 1993, the Commission considered the implications of the 1992 UN Conferenceon Environment and Development (UNCED), and the CBD in particular, for the IU.Recognizing that the CBD would play a central role in determining policy on PGR, theCommission 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 aFirst Negotiating Draft, which incorporated the three interpretative annexes into the IU,and provided a more rational structure, grouped into 14 articles.

SIXTH SESSION OF THE CGRFA: The Commission on Plant GeneticResources (CPGR-6) held its sixth regular Session at FAO Headquarters in Rome in June1995. In addition to its regular agenda, the Commission considered a Second NegotiatingDraft, which included the comments made and alternative wording suggested byCommission members to the First Negotiating Draft. At this meeting, the Commissionfocussed its discussions on Articles 3, 11 and 12 (pertaining to scope, access andFarmers’ Rights, respectively), and undertook a first reading of the Preamble. Proposalsmade by Commission members were integrated into a Third Negotiating Draft. InOctober 1995, the FAO Conference (Resolution 3/95) agreed to broaden the mandate ofthe Commission on Plant Genetic Resources to cover all aspects of genetic resources ofrelevance to food and agriculture, and to change its name to the Commission on GeneticResources for Food and Agriculture. The implementation of the broadened mandate is ona step-by-step basis starting with animal genetic resources, and should not interfere withthe negotiations for the revision of the International Undertaking. The Conference furtheragreed that the broadened Commission may establish “intergovernmental technicalsectoral working groups…, with appropriate geographical balance, to assist [the CGRFA]in the areas of plant, animal forestry and fisheries genetic resources.”

SECOND EXTRAORDINARY SESSION OF THE CGRFA AND THE FOURTHINTERNATIONAL TECHNICAL CONFERENCE ON PGR: The CGRFA held itsSecond Extraordinary Session at FAO Headquarters in Rome from 22-27 April 1996 inorder to address several issues in preparation for the Fourth International TechnicalConference on Plant Genetic Resources (ITCPGR-4) held in Leipzig, Germany, from 17-23 June 1996. ITCPGR-4 agreed on an international programme for the conservation andutilization of plant genetic resources for food and agriculture. Representatives of 148States adopted the Leipzig Declaration, the Conference’s key political statement, and aGlobal Plan of Action (GPA), the Conference’s main substantive output. Contentiousissues, including financing and implementation of the GPA, technology transfer,Farmers’ Rights and access and benefit-sharing, were the subject of ongoing contactgroup consultations. Their resolution, adopted as a package by the final plenary,represented a careful compromise of strongly held positions. Delegates were alsopresented with the first comprehensive Report on the State of the World’s Plant GeneticResources and a progress report on the revision of the International Undertaking.

THIRD EXTRAORDINARY SESSION OF THE CGRFA: The CGRFA held itsThird Extraordinary Session at FAO Headquarters in Rome from 9-13 December 1996.During the week-long meeting, delegates focused on Farmers’ Rights, scope and accessto genetic resources in relation to the revision of the International Undertaking. Buildingon the results of a two-day meeting of the Commission’s standing Working Group,during which several countries put forward proposals, delegates confronted both thepolitical and intellectual complexities as well as time constraints of revising theInternational Undertaking.

Although the meeting technically constituted the third formal negotiating session for therevision of the IU, CGRFA-EX3 can be characterized as a constructive pre-negotiationexercise. The meeting did not produce any new negotiated text, but it did make progresson difficult and often divisive issues. Many delegations moved beyond political posturingin order to clarify the concerns and interests that underlie their different positions. The G-77, the EU and the US each tabled text on Farmers’ Rights to serve as the foundation forthe Commission’s future deliberations on this issue. CGRFA-EX3 also commissioned a“two-step” study that would set out the various options for scope and access under arevised IU, and assess the viability of these arrangements. Finally, the Commissionagreed on arrangements for the continuation of its work on the IU.

REPORT OF CGRFA-7

The Seventh Session of the Commission on Genetic Resources for Food and Agriculturewas officially opened on Thursday, 15 May, by Mr. Abdoulaye Sawadogo, AssistantDirector-General of the FAO’s Agriculture Department. Welcoming the Commission’s151 member States as well as various UN agencies, IGOs and NGOs, Sawadogo outlinedevents over the past two years, which he described as the most active and important sincethe Commission’s creation in 1983. In particular, he noted the unanimous adoption of aresolution by the 1995 FAO Conference to broaden the mandate of the Commission toinclude all sectors of agro-biodiversity as well as the two extraordinary sessions in 1996,the first of which served as a preparatory meeting for the Fourth International TechnicalConference, and the second dedicated to negotiations for the revision of the InternationalUndertaking.

ORGANIZATIONAL MATTERS: The Commission elected a new Bureau forthe next biennium: Mr. Fernando Gerbasi (Venezuela) as Chair; Mr. Tewolde G.Egziabher (Ethiopia), Mr. Eng Siang Lim (Malaysia), Mr. Mohammed Taeb (Iran), Mr.Gert Kleijer (Switzerland), Mr. Andrew Pearson (Australia), and Mr. Thomas Forbord(US), as Vice-Chairs; and Mr. Michel Chauvet (France) as Rapporteur.

In addition, delegates adopted the provisional agenda and timetable (documents CGRFA-7/97/1/Rev.1 and /Add.2), containing the following items: continuation of negotiationsfor the revision of the IU; future work of the Commission; revision of terms of referenceand procedures of the Working Group(s); report of ITCPGR-4; follow-up to ITCPGR-4and progress report on the FAO Global System; consideration of FAO’s programme ongenetic resources for food and agriculture; reports from international organizations ontheir programmes, policies and activities on genetic resources for food and agriculture;date and place of the next session; and adoption of the final report.

REGIONAL CONSULTATIONS: Delegates agreed that for the rest of the firstday, regional groups would meet to prepare their respective positions for continuednegotiations to revise the IU, followed by inter-regional consultations on 16 May. TheChair asked each region to prepare regional positions on the three issues of scope, accessand benefit-sharing. The Bureau then met over the weekend to review and, wherepossible, consolidate these regional texts, which were translated and available Mondaymorning. This consolidated text, entitled “Text of Articles 3, 11 and 12 Compiled andConsolidated by the Bureau on Saturday, 17 May 1997” (Bureau’s Text), replaced therelevant sections of the Fourth Negotiating Draft of the IU. The Commission also agreedthat two Ad Hoc Working Groups would meet on 19 and 20 May: one groupwould consider the first 11 articles of the IU, including Article 3 on scope and Article 11on access; the other group would consider the remaining articles, including Article 12 onFarmers’ Rights.

REVISION OF THE INTERNATIONAL UNDERTAKING

WORKING GROUP ON SCOPE AND ACCESS: The Working Group onScope and Access, chaired by Mr. Fernando Gerbasi (Venezuela), met for threesessions on Monday and Tuesday, 19-20 May 1997, to negotiate Articles 3 (Scope) and11 (Access). The Working Group used the Bureau’s Text as the starting point for itsnegotiations, as well as a Secretariat paper that synthesized the various conditions ofaccess discussed during the first day of the meeting and/or contained in written regionalsubmissions. The Chair introduced the Bureau’s Text and noted that the regionalconsultations had resulted in a clarification of concepts and movement toward commonground, especially within regions, on key issues such as system(s) and conditions ofaccess to PGRFA. He also noted the continuing inter-regional differences in some ofthese areas, as reflected in the consolidated text.

The Bureau’s Text listed three options for system(s) of access to PGRFA, which includedunrestricted 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 possibilitythat a combination of access systems could apply to different categories of geneticmaterial. Another area of divergence, reflected in the Bureau’s Text, related to thecategories of genetic material to which the system(s) of access would apply. Options inthe text included a list of major crops, material found in national and/or internationalcollections, and/or material designated voluntarily by countries. The Chair called ondelegates to try to achieve consensus on the outstanding issues, instead of reiteratingregional positions.

Article 3: The Bureau’s Text, which stated that “This Undertaking relates toplant genetic resources for food and agriculture” was accepted by all delegates with littledebate. BRAZIL, on behalf of the Latin America and Caribbean Group (GRULAC), andANGOLA, on behalf of the African Group, highlighted that Articles 1 and 2 of the IU onobjectives and definitions, respectively, would have an impact on scope as expressed inArticle 3. The NETHERLANDS, on behalf of the EU, noted its preference to refer to keyobjectives 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 fourkey elements included in the formulation in the Bureau’s Text: the sovereignrights of States over their genetic material, the facilitation of access to geneticmaterial, 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 theAfrican Group, the US and Colombia. While CANADA noted that State sovereignty wasa well-accepted principle, and thus did not need repeating in this article, IRAN expressedits preference for the reference to be retained. The US noted that reference to the CBD’sprovisions may be inappropriate in an article designed explicitly to implement suchprovisions. CANADA and the EU pointed out that a number of the proposals on the tableseemed 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 thatstated that “Parties recognize the sovereign rights of States over their PGRFA, includingthe authority to determine access to those resources, subject to national legislation, and inaccordance with the CBD”. INDIA, BOLIVIA, COLOMBIA and the AFRICAN GROUPregistered their agreement with this formulation. The EU objected, since the reformulatedtext did not contain the key idea of “facilitating access,” which was as important as theother 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’sText, revolved around the system(s) of access to PGRFA (unrestricted, multilateral and/orbilateral), options relating to the material to be included within such system(s), theconditions 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, theAFRICAN GROUP, COLOMBIA and BOLIVIA, emphasized the need to establish amultilateral system of access and exchange covering designated genetic material.Categories of material falling outside this system would be governed by bilateralagreements, to be entered into by contracting Parties on mutually agreed terms, keepingin mind the provisions of the CBD. The EU noted the need for a combination of anunrestricted and a multilateral system of access to PGRFA, the cornerstone of whichwould be an International Network, which would include collections of PGRFA atnational, regional and international levels. The US reiterated the need for unrestrictedaccess to a specified sub-set of PGRFA.

In the debate that followed, CANADA noted that reference to bilateral arrangementsappeared unnecessary, since material falling outside the scope of the multilateral systemwould be covered under the purview of the CBD. The AFRICAN GROUP noted itspreference to retain the reference to bilateral arrangements. In response to queries fromthe US, BRAZIL and CANADA on the composition and mode of functioning of anInternational Network, the EU clarified that Parties and various other participants couldbe included in the Network, which could include International Agricultural ResearchCenters, as well as designated national collections, whether ex situ or insitu.

The US noted that a number of well-functioning networks on genetic resources alreadyexisted, and pointed out that the aim of the current exercise should be to continue thefacilitated open-access regime on genetic resources that the world has benefited from todate, rather than create new institutional arrangements. BRAZIL questioned the EU’ssuggestion that the Network would consist of “Parties and participants”, noting that hisunderstanding was that only States and regional economic integration organizations couldbe part of the IU, not associations or private enterprises. AUSTRALIA noted that insteadof creating new institutional arrangements, a simple list of participating organizationscould be created and placed with the FAO. The EU pointed out that since the Networkwas envisioned to be more that just a simple exchange of germplasm, and would includesharing of information and technology transfer, it seemed unlikely that it could be placedwholly 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 amultilateral system of access and exchange, whatever the modalities of such a system, theUS stated that it agreed to the need for a multilateral arrangement rather than a systemand that, with the rapid change in communications, there were various ways in whichdistributive networks could work quickly and efficiently. One example was theConsultative Group on International Agricultural Research (CGIAR) electronic networkof 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 beordered. Instead, it would be an instrument that would generate benefits — both monetaryand non-monetary — which would then be shared equitably. FRANCE noted that such anetwork was already in place in Europe, was functioning very well and could serve as amodel for the International Network. MALAYSIA, on behalf of the G-77, supported bythe EU, MADAGASCAR, ARGENTINA, MALAWI and IRAN, on behalf of the MiddleEast, 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 onArticle 11.2 addressed the material for which access was being debated. MALAYSIA,supported by the AFRICAN GROUP, noted that material voluntarily designated bycountries, as well as material whose source country was unknown, should be includedwithin the multilateral system of access and exchange. The US emphasized the need foraccess to the list of major food crops important to world food security, outlined in AnnexA in the Bureau’s Text. IRAN suggested that important food crops should be coveredunder a multilateral system, while other crops could be covered by bilateral arrangements.BRAZIL noted that further consultations within his region were necessary regarding theUS proposal for a list. He further emphasized that his delegation was unable to accept aproposal for a system wherein countries would volunteer PGRFA, since this might resultin one country volunteering another country’s germplasm in its possession. A clearermandate 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 geneticmaterial should be kept in mind. He pointed out that “country of origin” is defined in theCBD as one with the genetic resources in in situ conditions at the time of theCBD’s entry into force, and emphasized that it would be impossible for his country toaccept a retroactive application of the CBD.

Regarding the US proposal for a list to which access would apply, the EU noted itspreference for broad networks rather than narrow lists. The US pointed out that theNetwork proposed by EU would also require a list of institutions and collections, and thatlists should be modified in light of new information. AUSTRALIA noted that rather thanlisting material, a list of institutions and collections that would go beyond the CGIARmight be more useful. The US noted its support for such a list if it included all germplasmrelevant to PGRFA.

Conditions for access: BRAZIL, supported by COLOMBIA andMALAYSIA, on behalf of the G-77, noted strong opposition to the idea of unrestrictedaccess and preference for the concept of facilitated access. This access would be as quickas possible, with a minimum of bureaucratic delays, and with a declaration that use ofacquired PGRFA would be food and agriculture-related. Furthermore, conditions forfacilitated access would include cost-sharing for in situ collections. MALAYSIA,supported by ANGOLA, pointed out that conditions for access were laid out in detail inthe African Group’s regional proposal.

JAPAN emphasized that unrestricted access to PGRFA was what generated benefits inthe first place. The US noted that they did not intend “unrestricted” to apply to geneticmaterial in landraces or in situ farmers’ fields; rather they intended it to apply tothe sub-set of genetic material, the major food crops, specified in Annex A to Article 11.2in the Bureau’s Text. To make this clearer, the US proposed adding a list of designatedinstitutions that maintained such genetic material to the Annex. CANADA pointed to theneed 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 bequick, used only for food and agricultural purposes, and would include cost-sharing forin situ collections. Unrestricted access, on the other hand, seemed to include theabove, as well as the notion that: access would not be denied, except in the presence oftechnical hurdles; access would be provided on the basis of a simple exchange ofcorrespondence; and benefit sharing would not be based upon individual transactions ofgermplasm exchange.

Following these clarifications, MALAYSIA, supported by COLOMBIA, BOLIVIA,BRAZIL, ARGENTINA and TANZANIA, reiterated that the concept of facilitated accesswas the only acceptable one. The US concurred with use of the term “facilitated” butproposed using the phrase “facilitated open access”. COLOMBIA, BRAZIL andMALAWI questioned the value-added of the term “open”.

Following these discussions, a Secretariat Paper that synthesized the various options, andcharacterized them according to procedural, use, cost and benefit sharing conditions ofaccess, was considered by the Group. BRAZIL, supported by ARGENTINA, called forinclusion, under procedural conditions, of a clause specifying that every individualinstance of access should not give rise to a counterpart benefit, but rather that access andexchange should be based upon the principle of broad reciprocity. CANADA noted thatto minimize bureaucracy in facilitating access, an option could be to employ a commonsales practice whereby upon opening a package, certain obligations were incurred.ECUADOR noted that the condition stating that “access will not be denied oncerequested” may pose problems for countries with legislation requiring a contract betweenParties in order for an exchange to occur, as well as where the authority to deny requestswas vested in designated national entities. The Chair noted that national legislation wouldalways take precedence over the IU and, furthermore, that the standing of the IU and itsmode of implementation still remained unclear. JAPAN pointed out that technical hurdlescould sometimes prevent provision of a sample. INDIA, supported by the EU,TANZANIA and ARGENTINA, voiced its strong support for a clause under proceduralconditions stating that access should be facilitated by the provision of adequateinformation on genetic material.

Benefit-Sharing: In discussions on benefit-sharing within the context ofArticle 11.2, JAPAN noted that the main beneficiaries of unrestricted access to PGR wereplant breeders in developed and developing countries, not farmers, and that it was thisaccess that generated benefits in the first place. He reiterated the need, therefore, toconsider how the various schemes for access could provide incentives to plant breeders.CANADA, supported by AUSTRALIA, reiterated that access to PGR constituted, initself, the most important benefit to be shared, and thus should be the main benefitreferred to in Article 11.2. He noted that other articles could cover additional benefitssuch as technology transfer and information exchange. COLOMBIA, supported by theAFRICAN GROUP, reiterated that reference to benefits in addition to the benefit ofaccess — whether monetary or non-monetary — was crucial to the access provisions ofthe IU and should be included in Article 11.2. While CANADA repeated its willingnessto discuss different benefit-sharing categories and mechanisms in appropriate articles ofthe IU, it also reiterated that benefit sharing should not be linked to individualtransactions of germplasm exchange.

Article 11.4: As formulated in the Bureau’s Text, this article states that Partiesacquiring 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 arisingfrom such use. The EU, supported by the US, AUSTRALIA and CANADA, pointed outthat if the use was not food and agriculture-related, it should fall under the purview of theCBD, and this article should be deleted. TANZANIA, supported by CAMEROON,ETHIOPIA, MALAWI, SAMOA and MALI, noted the importance of including thisarticle 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 threesessions of the Working Group on Scope and Access, a Contact Group was established tocontinue the negotiations. The Contact Group used the Bureau’s Text, as amended by theWorking Group, as the basis for its deliberations. The Contact Group was comprised ofthe 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 andThursday afternoons under the Chairmanship of Mr. Fernando Gerbasi (Venezuela).

After the first session of the Contact Group, the Chair reported to the Wednesdaymorning plenary on the status of negotiations, which were reflected in the documententitled “Text considered in the Working Group meeting on 19 and 20 May”. The Chairnoted that substantial progress had been made. Article 3 on Scope remained consensustext, as agreed to in the Working Group. In addition, Article 11.1 was now consensustext, and included reference to the key elements of sovereign rights of States over theirPGRFA, the authority to determine access to these resources subject to nationallegislation, and the need to facilitate access to such resources in accordance with theCBD.

The Chair then noted that the first part of Article 11.2, on system(s) of access was nowconsensus text. It reads: “Parties agree to establish a multilateral system, which isefficient, effective and transparent, to facilitate access to PGRFA.” A second sentence inthis article, dealing with benefit-sharing within this multilateral system, was in bracketsbecause negotiations on its wording remained incomplete.

Given agreement to establish a multilateral system of access, conditions for such accesswere now included in a new Article 11.3. The first part of this article included bracketedoptions calling for access to be free of charge, with a modest handling fee, or at thelowest charge possible. The second part noted that recipients of material must beinformed 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 materialbeing subject to different conditions, including a reference to the CBD, remained inbrackets. The Chair noted that the Working Group should continue its deliberations as acontact 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 Fridaymorning. In presenting this document, the Chair emphasized that progress had beenmade, despite the fact that brackets now appear around text that had been previously beenagreed to. He noted that while Article 3 on scope remained unchanged, Articles 11.1 andArticle 11.2 were now bracketed. Noting that the text would have to remain as it currentlystood, and in order to accurately reflect the progress made on this issue, the Chairproposed deleting brackets around sub-articles, and placing one set of square bracketsaround Article 11 in its entirety, to signal that negotiations on the contents of the articleas a whole were still underway. Delegates supported the Chair’s suggestion, and endorsedthe fact that progress had indeed been made.

SCOPE AND ACCESS

WORKING GROUP ON SCOPE AND ACCESS: The Working Group onScope and Access, chaired by Mr. Fernando Gerbasi (Venezuela), met for threesessions on Monday and Tuesday, 19-20 May 1997, to negotiate Articles 3 (Scope) and11 (Access). The Working Group used the Bureau’s Text as the starting point for itsnegotiations, as well as a Secretariat paper that synthesized the various conditions ofaccess discussed during the first day of the meeting and/or contained in written regionalsubmissions. The Chair introduced the Bureau’s Text and noted that the regionalconsultations had resulted in a clarification of concepts and movement toward commonground, especially within regions, on key issues such as system(s) and conditions ofaccess to PGRFA. He also noted the continuing inter-regional differences in some ofthese areas, as reflected in the consolidated text.

The Bureau’s Text listed three options for system(s) of access to PGRFA, which includedunrestricted 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 possibilitythat a combination of access systems could apply to different categories of geneticmaterial. Another area of divergence, reflected in the Bureau’s Text, related to thecategories of genetic material to which the system(s) of access would apply. Options inthe text included a list of major crops, material found in national and/or internationalcollections, and/or material designated voluntarily by countries. The Chair called ondelegates to try to achieve consensus on the outstanding issues, instead of reiteratingregional positions.

Article 3: The Bureau’s Text, which stated that “This Undertaking relates toplant genetic resources for food and agriculture” was accepted by all delegates with littledebate. BRAZIL, on behalf of the Latin America and Caribbean Group (GRULAC), andANGOLA, on behalf of the African Group, highlighted that Articles 1 and 2 of the IU onobjectives and definitions, respectively, would have an impact on scope as expressed inArticle 3. The NETHERLANDS, on behalf of the EU, noted its preference to refer to keyobjectives 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 fourkey elements included in the formulation in the Bureau’s Text: the sovereignrights of States over their genetic material, the facilitation of access to geneticmaterial, 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 theAfrican Group, the US and Colombia. While CANADA noted that State sovereignty wasa well-accepted principle, and thus did not need repeating in this article, IRAN expressedits preference for the reference to be retained. The US noted that reference to the CBD’sprovisions may be inappropriate in an article designed explicitly to implement suchprovisions. CANADA and the EU pointed out that a number of the proposals on the tableseemed 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 thatstated that “Parties recognize the sovereign rights of States over their PGRFA, includingthe authority to determine access to those resources, subject to national legislation, and inaccordance with the CBD”. INDIA, BOLIVIA, COLOMBIA and the AFRICAN GROUPregistered their agreement with this formulation. The EU objected, since the reformulatedtext did not contain the key idea of “facilitating access,” which was as important as theother 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’sText, revolved around the system(s) of access to PGRFA (unrestricted, multilateral and/orbilateral), options relating to the material to be included within such system(s), theconditions 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, theAFRICAN GROUP, COLOMBIA and BOLIVIA, emphasized the need to establish amultilateral system of access and exchange covering designated genetic material.Categories of material falling outside this system would be governed by bilateralagreements, to be entered into by contracting Parties on mutually agreed terms, keepingin mind the provisions of the CBD. The EU noted the need for a combination of anunrestricted and a multilateral system of access to PGRFA, the cornerstone of whichwould be an International Network, which would include collections of PGRFA atnational, regional and international levels. The US reiterated the need for unrestrictedaccess to a specified sub-set of PGRFA.

In the debate that followed, CANADA noted that reference to bilateral arrangementsappeared unnecessary, since material falling outside the scope of the multilateral systemwould be covered under the purview of the CBD. The AFRICAN GROUP noted itspreference to retain the reference to bilateral arrangements. In response to queries fromthe US, BRAZIL and CANADA on the composition and mode of functioning of anInternational Network, the EU clarified that Parties and various other participants couldbe included in the Network, which could include International Agricultural ResearchCenters, as well as designated national collections, whether ex situ or insitu.

The US noted that a number of well-functioning networks on genetic resources alreadyexisted, and pointed out that the aim of the current exercise should be to continue thefacilitated open-access regime on genetic resources that the world has benefited from todate, rather than create new institutional arrangements. BRAZIL questioned the EU’ssuggestion that the Network would consist of “Parties and participants”, noting that hisunderstanding was that only States and regional economic integration organizations couldbe part of the IU, not associations or private enterprises. AUSTRALIA noted that insteadof creating new institutional arrangements, a simple list of participating organizationscould be created and placed with the FAO. The EU pointed out that since the Networkwas envisioned to be more that just a simple exchange of germplasm, and would includesharing of information and technology transfer, it seemed unlikely that it could be placedwholly 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 amultilateral system of access and exchange, whatever the modalities of such a system, theUS stated that it agreed to the need for a multilateral arrangement rather than a systemand that, with the rapid change in communications, there were various ways in whichdistributive networks could work quickly and efficiently. One example was theConsultative Group on International Agricultural Research (CGIAR) electronic networkof 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 beordered. Instead, it would be an instrument that would generate benefits — both monetaryand non-monetary — which would then be shared equitably. FRANCE noted that such anetwork was already in place in Europe, was functioning very well and could serve as amodel for the International Network. MALAYSIA, on behalf of the G-77, supported bythe EU, MADAGASCAR, ARGENTINA, MALAWI and IRAN, on behalf of the MiddleEast, 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 onArticle 11.2 addressed the material for which access was being debated. MALAYSIA,supported by the AFRICAN GROUP, noted that material voluntarily designated bycountries, as well as material whose source country was unknown, should be includedwithin the multilateral system of access and exchange. The US emphasized the need foraccess to the list of major food crops important to world food security, outlined in AnnexA in the Bureau’s Text. IRAN suggested that important food crops should be coveredunder a multilateral system, while other crops could be covered by bilateral arrangements.BRAZIL noted that further consultations within his region were necessary regarding theUS proposal for a list. He further emphasized that his delegation was unable to accept aproposal for a system wherein countries would volunteer PGRFA, since this might resultin one country volunteering another country’s germplasm in its possession. A clearermandate 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 geneticmaterial should be kept in mind. He pointed out that “country of origin” is defined in theCBD as one with the genetic resources in in situ conditions at the time of theCBD’s entry into force, and emphasized that it would be impossible for his country toaccept a retroactive application of the CBD.

Regarding the US proposal for a list to which access would apply, the EU noted itspreference for broad networks rather than narrow lists. The US pointed out that theNetwork proposed by EU would also require a list of institutions and collections, and thatlists should be modified in light of new information. AUSTRALIA noted that rather thanlisting material, a list of institutions and collections that would go beyond the CGIARmight be more useful. The US noted its support for such a list if it included all germplasmrelevant to PGRFA.

Conditions for access: BRAZIL, supported by COLOMBIA andMALAYSIA, on behalf of the G-77, noted strong opposition to the idea of unrestrictedaccess and preference for the concept of facilitated access. This access would be as quickas possible, with a minimum of bureaucratic delays, and with a declaration that use ofacquired PGRFA would be food and agriculture-related. Furthermore, conditions forfacilitated access would include cost-sharing for in situ collections. MALAYSIA,supported by ANGOLA, pointed out that conditions for access were laid out in detail inthe African Group’s regional proposal.

JAPAN emphasized that unrestricted access to PGRFA was what generated benefits inthe first place. The US noted that they did not intend “unrestricted” to apply to geneticmaterial in landraces or in situ farmers’ fields; rather they intended it to apply tothe sub-set of genetic material, the major food crops, specified in Annex A to Article 11.2in the Bureau’s Text. To make this clearer, the US proposed adding a list of designatedinstitutions that maintained such genetic material to the Annex. CANADA pointed to theneed 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 bequick, used only for food and agricultural purposes, and would include cost-sharing forin situ collections. Unrestricted access, on the other hand, seemed to include theabove, as well as the notion that: access would not be denied, except in the presence oftechnical hurdles; access would be provided on the basis of a simple exchange ofcorrespondence; and benefit sharing would not be based upon individual transactions ofgermplasm exchange.

Following these clarifications, MALAYSIA, supported by COLOMBIA, BOLIVIA,BRAZIL, ARGENTINA and TANZANIA, reiterated that the concept of facilitated accesswas the only acceptable one. The US concurred with use of the term “facilitated” butproposed using the phrase “facilitated open access”. COLOMBIA, BRAZIL andMALAWI questioned the value-added of the term “open”.

Following these discussions, a Secretariat Paper that synthesized the various options, andcharacterized them according to procedural, use, cost and benefit sharing conditions ofaccess, was considered by the Group. BRAZIL, supported by ARGENTINA, called forinclusion, under procedural conditions, of a clause specifying that every individualinstance of access should not give rise to a counterpart benefit, but rather that access andexchange should be based upon the principle of broad reciprocity. CANADA noted thatto minimize bureaucracy in facilitating access, an option could be to employ a commonsales practice whereby upon opening a package, certain obligations were incurred.ECUADOR noted that the condition stating that “access will not be denied oncerequested” may pose problems for countries with legislation requiring a contract betweenParties in order for an exchange to occur, as well as where the authority to deny requestswas vested in designated national entities. The Chair noted that national legislation wouldalways take precedence over the IU and, furthermore, that the standing of the IU and itsmode of implementation still remained unclear. JAPAN pointed out that technical hurdlescould sometimes prevent provision of a sample. INDIA, supported by the EU,TANZANIA and ARGENTINA, voiced its strong support for a clause under proceduralconditions stating that access should be facilitated by the provision of adequateinformation on genetic material.

Benefit-Sharing: In discussions on benefit-sharing within the context ofArticle 11.2, JAPAN noted that the main beneficiaries of unrestricted access to PGR wereplant breeders in developed and developing countries, not farmers, and that it was thisaccess that generated benefits in the first place. He reiterated the need, therefore, toconsider how the various schemes for access could provide incentives to plant breeders.CANADA, supported by AUSTRALIA, reiterated that access to PGR constituted, initself, the most important benefit to be shared, and thus should be the main benefitreferred to in Article 11.2. He noted that other articles could cover additional benefitssuch as technology transfer and information exchange. COLOMBIA, supported by theAFRICAN GROUP, reiterated that reference to benefits in addition to the benefit ofaccess — whether monetary or non-monetary — was crucial to the access provisions ofthe IU and should be included in Article 11.2. While CANADA repeated its willingnessto discuss different benefit-sharing categories and mechanisms in appropriate articles ofthe IU, it also reiterated that benefit sharing should not be linked to individualtransactions of germplasm exchange.

Article 11.4: As formulated in the Bureau’s Text, this article states that Partiesacquiring 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 arisingfrom such use. The EU, supported by the US, AUSTRALIA and CANADA, pointed outthat if the use was not food and agriculture-related, it should fall under the purview of theCBD, and this article should be deleted. TANZANIA, supported by CAMEROON,ETHIOPIA, MALAWI, SAMOA and MALI, noted the importance of including thisarticle 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 threesessions of the Working Group on Scope and Access, a Contact Group was established tocontinue the negotiations. The Contact Group used the Bureau’s Text, as amended by theWorking Group, as the basis for its deliberations. The Contact Group was comprised ofthe 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 andThursday afternoons under the Chairmanship of Mr. Fernando Gerbasi (Venezuela).

After the first session of the Contact Group, the Chair reported to the Wednesdaymorning plenary on the status of negotiations, which were reflected in the documententitled “Text considered in the Working Group meeting on 19 and 20 May”. The Chairnoted that substantial progress had been made. Article 3 on Scope remained consensustext, as agreed to in the Working Group. In addition, Article 11.1 was now consensustext, and included reference to the key elements of sovereign rights of States over theirPGRFA, the authority to determine access to these resources subject to nationallegislation, and the need to facilitate access to such resources in accordance with theCBD.

The Chair then noted that the first part of Article 11.2, on system(s) of access was nowconsensus text. It reads: “Parties agree to establish a multilateral system, which isefficient, effective and transparent, to facilitate access to PGRFA.” A second sentence inthis article, dealing with benefit-sharing within this multilateral system, was in bracketsbecause negotiations on its wording remained incomplete.

Given agreement to establish a multilateral system of access, conditions for such accesswere now included in a new Article 11.3. The first part of this article included bracketedoptions calling for access to be free of charge, with a modest handling fee, or at thelowest charge possible. The second part noted that recipients of material must beinformed 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 materialbeing subject to different conditions, including a reference to the CBD, remained inbrackets. The Chair noted that the Working Group should continue its deliberations as acontact 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 Fridaymorning. In presenting this document, the Chair emphasized that progress had beenmade, despite the fact that brackets now appear around text that had been previously beenagreed to. He noted that while Article 3 on scope remained unchanged, Articles 11.1 andArticle 11.2 were now bracketed. Noting that the text would have to remain as it currentlystood, and in order to accurately reflect the progress made on this issue, the Chairproposed deleting brackets around sub-articles, and placing one set of square bracketsaround Article 11 in its entirety, to signal that negotiations on the contents of the articleas a whole were still underway. Delegates supported the Chair’s suggestion, and endorsedthe fact that progress had indeed been made.

FARMERS’ RIGHTS

The Working Group on Farmers’ Rights met for five sessions from 19-22 May 1997,under the chairmanship of Mr. Gert Kleijer (Switzerland), using Article 12 of theBureau’s text as the basis for discussion. At the outset, the Chair noted that the all textualrevisions were provisional and must be considered in light of the entire IU.

Article 12.1: The Working Group began its deliberations with a discussion ofArticle 12.1, which recognizes the contribution that farmers of all regions of the world —in particular those in the centres of origin and crop plant diversity — have made to theconservation and development of PGR, which constitute the basis of food and agricultureproduction throughout the world. ZAMBIA, on behalf of the African Group, requestedthe insertion of language that recognized the contribution of farmers as forming the basisfor “Farmers’ Rights” (FR).

Although noting its willingness to pursue the objectives of Farmers’ Rights, CANADAacknowledged the seriousness of enshrining a new international right in a legally-bindingtreaty and expressed its reservation over adding a specific reference to FR, a term that atpresent is still only vaguely defined. This opinion was echoed by AUSTRALIA, the US,SWITZERLAND and the EU. The latter suggested including a definition of FR in Article2 and, in the meantime, referring to the definition provided by Chapter 32 of Agenda 21.AUSTRALIA, supported by CANADA, requested that brackets be placed around“Farmers’ Rights” in the title of Article 12 and proposed further amendments in order tohighlight the fact that the Working Group had not fundamentally agreed upon a definitionfor FR.

The EU stated that while it could accept reference to FR, the Working Group should gofurther and recognize the “rights of farmers.” However, CANADA and the US wereunwilling to recognize the contributions of farmers as the basis for recognizing either the“rights of farmers” or “FR,” as it considered the rights conferred to be too broad in scope.

At its fourth session, the Working Group continued discussion of Article 12.1. The EUannounced that it had worked with the African Group on a text and could now accept “FRas elaborated in Article 12.3.” CANADA, supported by ARGENTINA, AUSTRALIAand SENEGAL, expressed doubt that Article 12.3 constituted an elaboration of rights, butrather a number of measures to be taken by States to implement Articles 12.1 and 12.2.

The US could not agree with the EU text and reiterated its firm position that FR should beaddressed nationally, given that the rights that extend to its citizens are encoded in the USConstitution. The US, supported by AUSTRALIA, said it would be difficult to accept“Farmers’ Rights” or “farmers rights” since it is not specific enough to be recognized as aright in the same sense as a right to free speech, to association or as expressed in humanrights law. While the US indicated its willingness to establish measures to assist andencourage farmers, it had difficulty with elevating in a legal document something thatwas defined as a concept in FAO Resolution 5/89 to the status of right, such as the rightto be free from torture. JAPAN stated the need for a clear definition of FR before it couldagree to Article 12.1 since it also viewed FR as a concept rather than a set of substantiverights.

ETHIOPIA commented that “the decisions of the US, the most influential country in theworld, affect everyone: ‘When elephants fight the grass suffers. We are the grass that isbeing trod upon.’” ETHIOPIA expressed its disappointment that unlike the EU, whichhad demonstrated a desire to enter into serious negotiations, the US revealed a desire togo backward. NORWAY noted that while it was impossible to go backward because theconcept of FR has been recognized by the international community, at the same time FRcould not be given a legal definition without further discussion.

Based on the numerous amendments proposed, NORWAY suggested that a ContactGroup be created to work on Article 12.1. The Contact Group, comprised of Colombia,Egypt, Ethiopia, India, the Netherlands and the US, met Tuesday and Wednesday andpresented its compromise text of Article 12.1, the whole of which was in brackets, to theWorking Group at its fifth session. The Working Group did not negotiate the text butonly discussed whether the text could be used as another option under Article 12.1.

CANADA commented that the Contact Group’s compromise text was virtually identicalto the negotiating text and that the former was not acceptable because of the references toFR as elaborated in Article 12.3 and to FAO Resolution 5/89, both of which were toovague. Nonetheless, the majority of countries approved of the text as a supplementaryoption.

Article 12.2: The Chair noted the impossibility of consolidating the threeseparate text proposals for Article 12.2, which recognizes the need to realize FR. The firstoption, which addresses the responsibility of national governments and the internationalcommunity to realize FR, was favored by the AFRICAN GROUP, EGYPT and BRAZIL,who added that national governments and the international community were equallyimportant and responsible for ensuring the rights of farmers since both are the recipientsof PGR. The EU, SWITZERLAND and CANADA preferred the second option, whichcalls on Parties to recognize the need to strengthen the role of farmers in conservation andsustainable use of PGRFA and to ensure fair and equitable sharing of benefits. The EUadded that it was also willing to work on the first option.

The US and AUSTRALIA preferred the third alternative, which calls on Parties torecognize the need to promote the efforts of their farmers to conserve and sustainably usePGRFA, and suggested adding at the end, “and the need for the international communityto assist in such efforts, including support for the conservation and sustainable useinitiatives that directly benefit farmers.” The EU was unable to work on the basis of thethird option and could not accept the US text. COLOMBIA also rejected the US proposal,adding that the purpose of Article 12.2 was to support initiatives, not only in the interestsof farmers but of the entire international community.

Registering a strong reservation with the broad and undefined principles underlying thefirst option, AUSTRALIA noted that its position was directly counter to that of the EU,and that it did not want to accept the responsibility of recognizing FR at national orinternational levels.

The Chair directed the Working Group to use the first option as the basis for its work.INDONESIA stated that the full responsibility should be implemented at the nationallevel since each government understands what rights must be given to farmers to improvetheir living. CANADA, supported by the US, noted that the implementation of a right isjust as complex at the international level as it is nationally and questioned whether therewas precedent for such a distinction between the two.

The US stressed that the realization of rights is a matter of national sovereignty andsuggested the following text for the first option: “Parties recognize that the responsibilityfor realizing the rights of farmers, as defined by FAO Resolution 5/89 individually andcollectively, where recognized by national law, rests with the national government.” TheUS added that it could drop reference to the FAO Resolution if “their” was added in frontof “farmers” so that the phrase would read: “Parties recognize that the responsibility forrealizing rights of their farmers, as they relate to PGRFA...”.

The EU supported the US proposal, but with the amendment: “the rights of their farmers,as elaborated in Article 12.3”. CANADA commented that it did not view Article 12.3 asan elaboration of rights but a means by which governments will act upon a recognition ofthe rights of farmers.

During the Working Group’s fifth session, AUSTRALIA withdrew its reservation onArticle 12.2, provided that the third option in the Bureau’s compiled text of Article 12.2be reinserted into the Working Group’s amended Article 12.2 as another option.

Article 12.3: During the Working Group’s discussion of the chapeau of Article12.3, which suggests measures for implementing FR, AUSTRALIA, seconded byCANADA, requested the removal of treaty language given that no decision has beenmade about elevating the IU to treaty status. The EU suggested amending Article 12.3(a),which calls on Parties to assist farmers in the conservation and sustainable use ofPGRFA. COLOMBIA noted that since both Article 12.2 of the IU and Article 8(j) of theCBD made reference to “indigenous and local communities,” Article 12.3 shouldcontinue in a similar vein.

Addressing Article 12.3(a)(i), regarding national germplasm, AUSTRALIA suggestedwording that reflects that fact that a number of countries do not have a recognizableframework regarding the accumulation of germplasm. AUSTRALIA also suggestedmerging Article 12.3(a)(i) with Article 12.3(a)(ii) (preserving native germplasm) andArticle 12.3(a)(v) (regional programmes). In its fourth session the Working Group agreedthat Article 12.3(a)(ii) was unnecessary and could be deleted, as could Article 12.3(a)(iv),“[activities that help to [prevent environmental degradation/control the erosion] of arableland],” since most delegations were unwilling to accept a text that was so broad in scope.

Addressing Article 12.3(b), which concerns the use of international programmes tobenefit farmers, the AFRICAN GROUP suggested language indicating that it wasnecessary to reorient international programmes to assist in furthering farmers’ activitiesin PGR. Furthermore, the Working Group should not operate under the false assumptionthat programmes were already working in this area. AUSTRALIA proposed theelimination of references to international programmes, because the narrowing of suchprogrammes to directly benefit farmers, combined with the suggestion that allinternational programmes must benefit farmers, is not a feasible way of helping farmers.BRAZIL proposed amendments that would ensure that international programmes did notconflict with national legislation.

In Article 12.3(c), which suggests measures to be taken to implement nationalcommitments that benefits farmers, MEXICO, supported by COLOMBIA andVENEZUELA, suggested that the language of Article 8(j) of the CBD — “indigenousand local communities” — should be used. AUSTRALIA, supported by the US, statedthat since the issue of benefit sharing was problematic, the entire paragraph should bedeleted or placed in brackets.

In Article 12.3(d), regarding support measures for research, training and institutionalcapacity building activities at the local level, the US, supported by AUSTRALIA, notedthat the sub-article was very detailed and better suited to a document at the level of theGlobal Plan of Action. The AFRICAN GROUP preferred the text in it current form,noting that it was necessary to elaborate what needed to be done to remove the financialand market barriers and other constraints that operate against farmers and theirlivelihoods, in particular, the need for measures for training, credit facilities andinstitutional capacity with the participation of local countries, which is important forability to participate in benefit sharing.

In Article 12.3(e), which concerns the integration of farmers’ knowledge, AUSTRALIAnoted that “traditional farmers’ knowledge” is an unclear term. In addition, the USsuggested the substitution of “adaptation of” with “integration of,” the logic being thatwhat needs to take place is the integration of two types of technologies — traditional andmodern.

In Article 12.3(f), regarding the promotion of national and international scientific andtechnological research, the Working Group agreed to the consolidated text proposed bythe US, “Promote national and international scientific and technological agriculturalresearch that supports and enhances, as appropriate, farmer-based knowledge systemsrelated to PGRFA.”

The Working Group could not agree on any of the three options under Article 12.3(g),concerning the Farmers’ Privilege. The Chair directed the US, ARGENTINA and the EUto form an informal group to draft compromise text. The outcome of this discussion was afourth option: “Protect, consistent with national and international legislation, asappropriate, the ability of farmers and their communities to keep, use, exchange, shareand market seed and other plant reproductive materials of their farmers’varieties/landraces.” ETHIOPIA commented that it did not understand what internationallegislation would mean in this context and that the text falls short of what it wanted interms of the Farmers’ Privilege. NORWAY agreed that the compromise text was aweakening of the Farmers’ Privilege as compared to the International Convention for theProtection of New Varieties of Plants (UPOV Convention) of 1978.

In Article 12.3(h), the EU, seconded by AUSTRALIA, noted that since this sub-articleaddressed financial resources it should be included in Article 14, which addressesfinancing for the entire IU. Furthermore, of the two options for Article 12.3(h), the EUpreferred the second, which calls for appropriate efforts to mobilize financial resources tosupport farmers, but with the deletion of the language, “without restricting or distortingtrade.” The AFRICAN GROUP, supported by EGYPT, CAMEROON, INDONESIA, onbehalf of the developing countries of Asia, and COLOMBIA, preferred the first option,which calls for the establishment and implementation of an international fund. EGYPT,supported by ZAMBIA and SUDAN, argued that FR and providing financial resourcesaffects access to genetic resources and that unless FR is linked to the fund, there can beno FR, access or IU. Since there was no consensus on either option, the Working Groupagreed that the text should remain in brackets.

The Working Group was also unable to agree on compromise text for Article 12.3(i),which concerns the transfer of technology. Amendments suggested by the US wererejected by ETHIOPIA, COLOMBIA, KENYA and BRAZIL because they werecompletely devoid of provisions for the transfer of technology as well as access to theresults of research and development from the improved use of PGR through modernscientific methods as well as from their commercial use. These countries reiterated theposition that access, scope and FR are one package — if there is no agreement on onethen there is none on the others.

After a lengthy and general debate on the similarities of Articles 12.3(j), (k) and (l),which are concerned with legislation and legal protection systems for indigenousknowledge, innovations, materials and practices, it was agreed that Articles 12.3(j) and(k) would be deleted and (l) modified.

Two options were established for Article 12.3(m), which concerned legal protectionsystems to render effective the rights of farmers and the fair and equitable sharing ofbenefits arising out of PGRFA. The EU suggested: “Elaborate and establish systems(including sui generis systems), as appropriate, pertaining to the fair and equitablesharing of the benefits arising out of the utilization of plant genetic resources with theirfarmers.” CANADA, indicated its support for the EU text provided that “food andagriculture” was added to “plant genetic resources.” SWITZERLAND also supported theEU text, provided that the language “on a national level” was added to reflect that theparagraph referred to national systems. ARGENTINA suggested the amendments, “Studythe possibility of developing juridical or legal protection systems or systems of legalprotection in order to render effective the rights of farmers and the fair and equitablesharing of the benefits arising out of the utilization of PGRFA.” BRAZIL, seconded byCOLOMBIA, supported the Argentine text, provided stronger language was used in theintroduction such as “endeavor to,” and added that sui generis systems may not beapplicable to national systems. ARGENTINA agreed to use the word “promote” instead.

NORWAY supported the EU text, noting that sui generis language was importantand that it should be developed at the national, and not the international, level.SENEGAL said that the legal repercussions dictate that regulation should be left to thediscretion of national governments. INDIA, supported by BRAZIL, stated the need for asystem at both the national and international levels.

The Working Group ended its fifth session with further discussion of Article 12.3(m),which became Article 12.3(k) in the text submitted to the plenary due to the earlierdeletion of two sub-articles. BRAZIL was amenable to either option provided that it wason a national level because Article 12.3(n)[l] addressed the international level and theyviewed the two sub-articles as completely different concepts. BRAZIL, supported byARGENTINA, proposed language for the first option that would indicate that not onlylegal systems but other mechanisms would be promoted to effectuate the rights offarmers, as well as language for the second option, “to ensure” the fair and equitablesharing of benefits.

The US supported the second option, but unlike BRAZIL inserted “promote” rather than“ensure.” JAPAN favored the second option, but did not have a clear understanding of themeaning of sui generis systems on a national level and called for its replacementwith the language, “on the national level.”

The EU, US and AUSTRALIA then requested the deletion of Article 12.3(n)[l], whichaddressed international sui generis systems. However, the AFRICAN GROUPrequested that the article remain. Although the US also requested the deletion of Article12.3(o)[m], which calls on farmers and farming communities to fully participate in thedefinition and implementation legislation on FR and the IU at national and internationallevels, the EU disagreed. EGYPT requested that specific reference be made to aninternational fund.

The document produced in discussion by the Working Group was adopted in plenarywithout discussion.

PLENARY

The Commission met in plenary on Thursday, 21 May, to consider the other items on itsagenda.

FUTURE WORK OF THE COMMISSION (AGENDA ITEM 9) AND WORKING GROUPS (AGENDA ITEM 3)

The Commission considered Agenda Items 3 and 9 together. The Secretariat introducedthese items and explained that, pursuant to the FAO Resolution to broaden the mandate ofthe Commission, the FAO Council adopted interim statutes for the Commission inNovember 1995, which provided that “the CGRFA may establish intergovernmentaltechnical sectoral working groups, with appropriate geographical balance, to assist it inthe areas of plant, animal, forestry and fisheries genetic resources”, taking into accountfinancial and administrative implications. As a basis for deliberations on this issue,delegates referred to the document, “Establishment and Terms of Reference ofIntergovernmental Technical Sectoral Working Groups of the Commission” (CGRFA-7/97/2), in particular, Annex 2, “Proposed Statutes of the Working Group”, which wasagreed at CGRFA-6. Although there was general agreement on the establishment of anintergovernmental technical working group on animal genetic resources (AGR) and thetransformation of the standing Working Group of the Commission into anintergovernmental technical working group (ITWG) on plant genetic resources, theCommission devoted two sessions to debating the terms of reference, including themandate and composition of the working group(s), timing and frequency of sessions, andelection of officers.

SECTORS: CANADA noted that forestry genetic resources (FGR) could bebrought into future sessions of the CGRFA, in line with the gradual broadening of itsmandate, but that it would be premature to create an ITWG-FGR at this time. The USexpressed support for the continuation of the Panel of Experts on Forests and proposedthat FGR be the subject of the next ITWG established by the Commission. SIERRALEONE underscored the urgent need to establish an ITWG on forest genetic resources.

SAMOA called on the Commission to address fisheries and forestry genetic resources,both priorities for small island developing States. CAPE VERDE called for an ITWG tobe established for fisheries genetic resources.

TERMS OF REFERENCE/MANDATE: The US and AUSTRALIA proposedthat any new ITWG should examine specific questions assigned to it by the Commission.EGYPT took issue with the US contention that the statutes for both ITWGs be identical,and stated that progress should be reviewed every biennium by the Commission.MEXICO called for a specific mandate for each ITWG, taking into account progressmade.

The EU recommended that the ITWG-AGR elaborate and develop strategies from thealready formulated Global Strategy for the Management of Farm Animal GeneticResources (GS-FAGR) as a follow-up to the relevant CBD COP-3 decision on ongoingloss of genetic diversity in farm animals. ARGENTINA, JAPAN and PAKISTANspecified that the ITWG-AGR should focus on GS-FAGR.

MALAWI and BANGLADESH both noted that the ITWG-AGR should consideradequate funding for developing countries to stem the great loss of AGR at the nationallevel. Underscoring the problem of producing sufficient animal protein in mostdeveloping countries, INDONESIA expressed support for a ITWG-AGR, but cautionedthat it would be “meaningless” without the resolution of PGR issues. COLOMBIA notedits preference to continue addressing PGR within the Commission itself. SOUTHAFRICA recommended that the ITWG-PGR not be established until negotiations on therevision of the IU were concluded, unless it be assigned a special task, such as facilitatingthe implementation of the GPA. POLAND stated that the primary task of a ITWG-PGRshould be to assist the Commission in completing the IU revision.

TIMING AND FREQUENCY OF SESSIONS: CANADA, supported by the US,noted a contradiction between the Commission’s draft statutes (which specify thatmeetings shall be held at least once a year) and FAO Council’s statutes (which specifymeetings no more than once a year). The EU, AUSTRALIA, VENEZUELA, ETHIOPIA,CHINA and UGANDA recommended that the ITWG-AGR should exist for a limited,well-defined period of time. MADAGASCAR proposed that the meetings of the twoITWGs be held concurrently to avoid the costs of “excessive sectoralization”.

COMPOSITION: CHINA, the EU, GRULAC and the AFRICAN GROUPsupported the draft statutes that provide that the ITWG be comprised of 23 Member-States as follows: five from Africa; five from Europe; four from Asia; four from LatinAmerica and the Caribbean; three from the Near East; one from North America; and onefrom Southwest Pacific.

CANADA proposed a reduced ITWG membership of 17 as follows: North America andSouthwest Pacific would each retain one representative but the remaining regions wouldbe reduced to three. The US expressed its preference for two representatives per regionbut indicated its willingness to consider three representatives for other regions who sopreferred. AUSTRALIA proposed two representatives for each of North America and theSouth Pacific, and three for the other regions. SAMOA requested that the SouthwestPacific regional representation be extended from one to two and that the mega-diverseregion be designated “Pacific” so as to incorporate more small island developing States.

ELECTION OF OFFICERS: While the US and EGYPT recommended that theelection of officers be vested with the ITWG itself, ARGENTINA, CUBA, MALAWI,MEXICO and BANGLADESH stated that the ITWG Chair should be elected by the bodythat confers the mandate and in which country representation is greatest, i.e., theCommission. Moreover, while the EU and CANADA recommended that the ITWGreport to the FAO Commission on Agriculture (COAG) until IU negotiations areconcluded, BRAZIL, the US, EGYPT, ARGENTINA, CUBA, MEXICO and UGANDAproposed that the ITWG-AGR report directly to the Commission.

FINANCIAL AND ADMINISTRATIVE ISSUES: JAPAN underscored that theactivities of the ITWG should be covered within the budget and programme of the FAO.NORWAY and SWEDEN underscored that an extraordinary session of the CGRFAshould not require extra-budgetary resources. The EU underscored that no engagementcould be entered into until financial implications had been considered. The EU stated thatthe first priority must be the IU.

AUSTRALIA questioned the appropriateness of establishing these Working Groups atthis time given the Commission’s crucial responsibility to complete the revision of theIU. The US noted that without financial assurances from the FAO Director-General, itwas difficult to see how meetings of the Working Groups would not interfere with IUrevision. In response to requests by CANADA and the US regarding the financial andadministrative implications of ITWG meeting(s) over the next biennium, the Secretariatexplained that the availability of funds will depend on whether the “zero growth”proposed by the FAO Director-General is real or nominal.

BUREAU STATUTES: On the basis of the above interventions, the Bureaurevised the draft statutes. The following statutes were adopted by the Commission, withtwo minor amendments made in the final plenary.

The Commission will assign specific tasks to the ITWGs so that they can carry out itsmandate to review issues related to agro-biodiversity in the areas of PGRFA/AGRFA andadvise the Commission on these matters; consider progress made in implementing theCommission’s programme of work on PGRFA/AGRFA as well as any other mattersreferred to it by the Commission; and report to the Commission on its activities. Thetiming and duration of each ITWG session, which cannot be held more than once a year,will be decided by Commission. The ITWGs will be composed of 27 representatives: fiveeach from Africa, Asia, Latin America and the Caribbean, and Europe; three from theNear East; and two each from North America and the Southwest Pacific. The ITWGs willelect their own officers, including a Chair and one or more Vice-Chairs from among itsown members at the beginning of each session.

The Bureau proposed that the first task assigned to the ITWG-AGR will be to developand facilitate the implementation of the GS-FAGR. Noting that the ITWG-PGR may notbe the appropriate mechanism for active and effective participation of all countries inrevising the IU, the Bureau further recommended that rather than holding a meeting ofITWG-PGR during this biennium, a one-week extraordinary session of the Commissionshould be convened in order to continue and, if possible, conclude negotiations on the IU.The Secretariat confirmed that although they would request funds for an extraordinarysession, they could not guarantee their delivery, and invited countries to defend thisproposal in the appropriate FAO fora.

After lengthy debate on terminology, delegates agreed that the statutes should refer toplant genetic resources for food and agriculture and animal genetic resources for food andagriculture.

REPORT OF THE INTERNATIONAL TECHNICAL CONFERENCE AND FOLLOW-UP (AGENDA ITEMS 4 AND 5)

The Secretariat presented the Report of the Fourth International Technical Conference(ITCPGR/96/REP) as well as documentation relevant to its follow-up: the ProgressReport on the Follow-up to the International Technical Conference on PGR (CGRFA-7/97/4); Revision of Cost Estimates for the Global Plan of Action (CGRFA-7/97/4Annex); Monitoring of the Rolling Global Plan of Action (CGRFA-7/97/5); and CurrentExpenditures on PGR (CGRFA-7/97/6).

PROGRESS REPORT ON THE GLOBAL SYSTEM (AGENDA ITEM 5)

The Secretariat presented the Progress Report on the Global System for the Conservationand Sustainable Utilization of PGRFA (CGRFA-7/97/3) and called on the Commission toprovide guidance in the following areas:

  • cooperation between the CGRFA/FAO and the CBD and United Nations Commission on Sustainable Development (CSD) in the area of agro-biodiversity;
  • the implications of its broadened mandate for various components of the Global System, in particular the scope of the World Information and Early Warning System;
  • review and monitoring of the implementation of the Global Plan of Action (GPA) for the Conservation and Sustainable Utilization of PGRFA (including funding and/or financing mechanisms);
  • periodic updating of the State of the World Report on PGRFA; and
  • codes of conduct and guidelines for germplasm collecting and transfer, the extension of existing agreements with the 12 CGIAR Centres in the context of the international network of ex situ collections under the auspices of FAO, and the role of crop-related and regional PGRFA networks in promoting the GPA.

CONSIDERATION OF FAO’S PROGRAMME ON GENETIC RESOURCES FOR FOOD AND AGRICULTURE (AGENDA ITEM 7)

Introducing this item, the Secretariat explained that in light of the FAO Conference’sdecision to broaden the Commission’s mandate in a step-by-step process, the FAO’susual report on PGR (CGRFA-7/97/8.1) was complemented by a report on other fields ofagricultural biodiversity, with special emphasis on animal genetic resources (CGRFA-7/97/8.2).

In a formal statement to the Commission, Dr. Louisa Fresco, Assistant Director of FAO’sSustainable Development Department, underscored the need to develop an integratedapproach to biodiversity. Regarding plant genetic resources, Fresco noted the success ofthe Leipzig meeting and the challenge of implementing its outputs. Regarding forestgenetic resources, she highlighted the importance of regional activities in developing amore comprehensive GPA. Regarding animal genetic resources, Fresco underscored thedevelopment of a Global Strategy for which a country-based network could serve as animplementing structure. She added that the FAO has not yet established a formalstructure to address fish genetic resources. Finally, the CBD and FAO, with support fromthe Netherlands and involvement of the International Plant Genetic Resources Institute(IPGRI) and UNESCO, will convene a meeting to develop a joint work programme forimplementing the CBD COP-3 decision on agro-biodiversity.

CANADA, supported by the US, deplored the document’s arrival only one week prior tothe Commission meeting, which “crippled” delegates’ ability to advise the FAO on itsprogramme. Nonetheless, he underscored the document’s consideration of the economicvaluation of genetic resources as well as a study of the interaction between biodiversityand trade.

REPORTS FROM INTERNATIONAL ORGANIZATIONS (AGENDA ITEM 6)

Introducing the item, the Secretariat noted that previous sessions of the Commission havereceive reports from international governmental and non-governmental organizations ontheir programmes, policies and activities on PGRFA. Following the broadening of theCommission’s mandate, the Secretariat invited a wide range of relevant organizations toreport on all aspects of agricultural biodiversity. Reports that were received in time forprinting are contained in document CGRFA-7/97/7. Reports were received from thefollowing organizations:

  • UN AND IGOS: Asian Development Bank; Commonwealth Secretariat; Convention on Biological Diversity; Global Environment Facility; Inter-American Institute for Cooperation in Agriculture; International Atomic Energy Agency; International Centre for Agriculture and Biosciences; International Fund for Agricultural Development; International Office of Epizootics; UNEP; UNIDO; UNESCO; and the World Bank.
  • INTERNATIONAL AGRICULTURAL RESEARCH CENTRES OF THE CGIAR: El Centro Internacional de Agricultura Tropical; International Centre for Agricultural Research in Dry Areas; International Crop Research Institute for the Semi-Arid Tropics; International Centre for Living Aquatic Resources Management; International Institute of Tropical Agriculture; International Service for National Agricultural Research; and West African Rice Development Association. In its capacity as the convening Centre of the CGIAR’s System-wide Genetic Resources Programme, IPGRI consolidated these individual reports into a joint report.
  • INTERNATIONAL NON-GOVERNMENTAL ORGANIZATIONS: International Association of Plant Breeders (ASSINSEL); European Association for Animal Production; International Centre for Underutilized Crops; International Union of Forestry Research Organizations; International Committee for Animal Recording; Rare Breeds International; and Rural Advancement Foundation International (RAFI).

After the Secretariat’s presentation of the documentation, representatives from the CBDSecretariat, ASSINSEL, IPGRI, RAFI and UPOV made statements.

CLOSING PLENARY

Delegates gathered on Friday evening for the final plenary in order to consider the draftreport of the meeting, as presented by the Rapporteur. The Commission agreed to hold itseighth session during the second half of April 1999, and approved the following draftagenda: revision of the IU; report of the ITWG-AGRFA on the development of the GS-FAGR; progress report on the Global System and the GPA; consideration of FAO’spolicies, programmes and activities on GRFA; international cooperation in the field ofGRFA and cooperation with the CBD; and future work of the Commission and itsITWGs. The Secretariat requested that those regions that have yet to nominate theirrepresentatives to the ITWGs do so no later than 30 June 1997.

With reference to the future work of the Commission and the establishment of its ITWGs,SAMOA and CAPE VERDE requested that the report record that some delegationsstressed the importance of fisheries genetic resources. INDIA and NORWAY supportedtheir legal right to insist that these views, aired during plenary discussion, be recorded.ARGENTINA objected to the inclusion of this statement and proposed instead, “Somedelegations felt that without prejudging the decisions of other FAO bodies, there arepriorities set out by the Commission in dealing with various topics.” In the end, the reportjuxtaposed the views of Samoa and Cape Verde with a note that “one delegation objectedto fisheries being a priority” in the future work of the Commission.

Finally, regarding a paragraph noting the significant progress achieved at the meeting onnegotiations for the revision of the IU, debate centered on two issues. First, the USpointed out that he could not recall the reference in which the Commission “stressed theneed for high-level governmental involvement in the negotiating process,” and called forits deletion. The NETHERLANDS insisted that, in his closing remarks on behalf of theEU regarding this agenda item, he had highlighted the need for high-level politicalinvolvement. The US, supported by AUSTRALIA, suggested that the final report reflectthe fact that this was the position of a few delegations, rather than the Commission. Thissuggestion was ultimately rejected and the reference to high-level political involvementwas retained.

Second, MALAYSIA, supported by COLOMBIA, suggested adding “and the equitablesharing of benefits arising from their utilization” to a sentence highlighting theimportance of the conservation and sustainable utilization of PGRFA for global foodsecurity. The US noted that introduction of this new text constituted an attempt to reopennegotiations. AUSTRALIA suggested substituting “a large number of countriesrecognized” rather than “the Commission recognized” in this sentence. A Secretariatreformulation of this paragraph, which contained the new text, was ultimately adopted.

The Commission concluded its meeting with the adoption of the report at 11:00 pm.

A BRIEF ANALYSIS OF THE IU NEGOTIATIONS

Most delegates agreed that CGRFA-7 marked the beginning of real negotiations towardrevising the IU. However, the level and seriousness of the negotiations were notconsistent across issue areas: while deliberations on Farmers’ Rights remained largelyrooted in rhetoric, scope and access were the subject of intelligent and detaileddiscussion.

SCOPE AND ACCESS: While a working group was constituted to negotiateboth scope and access, the scope issue, which was the focus of much attention atCGRFA-EX-3 in December, was almost absent from the discussions. While consideringthe article on scope in the Working Group, delegates quickly accepted a Bureauformulation, arising out of regional group submissions, which stated that “the IU relatesto PGRFA”. Some delegates attributed this formulation to an informal agreement —reached during regional consultations — not to add qualifiers to PGRFA, which wouldinclude or exclude particular categories of PGR such as forest or medicinal resources, orpre- or post-CBD collections of genetic material. A developing country delegate notedthat, with the definition of “plant genetic resources” still at large, this agreement signaleda decision to defer these discussions until later, when both PGR and PGRFA would haveto be defined under Article 2 of the IU. This strategy allowed delegates to focus their fullattention on access issues, where debate centered around the system(s) and conditions ofaccess, and benefit sharing within an access regime.

A clear marker of progress within the access discussions was the agreement among a vastmajority of the delegations — most notably the EU and the G-77 — on the need for amultilateral system of access and exchange, which is efficient, effective and transparent,to facilitate access to PGRFA. The modalities for such a multilateral system remainednebulous, 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 needfor 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” itwould have to include benefit-sharing provisions that were acceptable to all Parties. Thisprovided the much-needed meeting ground from wherein to debate the operationalizationand 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 shouldconstitute more than just a set-up for exchange of germplasm, but rather that it shouldgenerate benefits, whether monetary or non-monetary, through its very existence andfunctioning.

Notwithstanding this progress, deliberations during the meeting seemed to encounter analmost unavoidable chicken-and-egg problem, whereby discussions and decisions on oneissue appeared to be contingent upon another. Delegates noted, for example, that withoutdiscussing conditions of access to PGRFA, it would be inopportune or even impossible todesignate 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 bedifficult to specify. A number of delegates noted that if one had to choose, a focus onconditions of access, along with benefit-sharing, would be a logical place to begin, sincedecisions in these areas would allow countries to decide whether or not their bestgermplasm would be available through the multilateral system.

Discussions on benefit-sharing also reflected the complexity of the issues. While notdebated in any detail, the brief references to the distinctions between the country of originversus the provider country, in the sharing and exchange of PGRFA, hinted at the factthat this will be a key area of contention in future deliberations.

Another point of confusion related to whether benefit-sharing pertained to every singletransaction or exchange of germplasm. Delegates noted that this would be a logisticalnightmare, in addition to being inefficient and costly. While a number of countries —both North and South — emphasized that a link between benefit-sharing and individualtransactions was emphatically not what they desired, it remained unclear whether thatwas the general understanding. One delegate clarified that only in the event ofcommercialization of a product developed from PGRFA, made available through themultilateral system, that benefit-sharing provisions would take effect, rather thanapplying 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 ofPGRFA.

It is noteworthy that while discussions on scope and access provided a good foundationfor future deliberations, consensus text was not adopted, largely as a result of thewariness on the part of a few delegations about making an explicit link between theaccess and benefit-sharing provisions of the IU. Some delegates also indicated theirreluctance 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 wasevident in the closing plenary when delegates applauded to signal their approval of aclause on benefit-sharing in the meeting’s final report.

FARMERS’ RIGHTS: The Commission also entered into negotiations onFarmers’ Rights (FR) as it began to seek a better understanding of the objectives ofvarious regional groups and the boundaries of those objectives, aided in part by aconsolidated text that assisted in delineating the parameters of the debate. This was alsothe 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 EUcountries and most of the G-77 countries, in that both recognize FR as more than aconcept. Consequently, several non-European OECD countries have found themselvesincreasingly isolated on this issue. Although they have not formally constitutedthemselves as such, several delegates anticipate the establishment of the JUSCANZGroup (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 remainselusive, some delegates consider that it may be possible to reach a commonunderstanding of the meaning of FR by specifying who recognizes such rights, where,and under what circumstances, and whether their realization requires the creation of aninternational fund.

Nonetheless, the Working Group on Farmers’ Rights current modus operandi hasbeen unproductive. To date, any progress made through informal consultations has beenquickly undermined in formal working group negotiations. One factor that has limited theeffectiveness of the Working Group is its inability to agree on the meaning of basicentities such as farmers, traditional, indigenous and local farming communities. Anotherimportant area of ambiguity is whether the rights to be defined are national orinternational in scope. Indeed, many delegates expressed concern that it will be muchmore difficult to achieve consensus on an international right because the answers toquestions such as “What is a farmer?” vary in each country. Such questions underscorethe challenge inherent in forging common understandings when there are divergentframes of reference.

Given the difficulties outlined above, some delegates have privately cautioned againstattempts 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 asa possible way forward.

CONCLUSION: In starting negotiations on the most complex and contentiousaspects, the Commission may have underestimated the difficulties inherent in revising theIU. Numerous delegates expressed concern that focusing exclusively on the toughestaspects of revising the IU is a high-risk strategy — one that may backfire in later stagesof the negotiations.

With actual negotiations underway, several delegates have commented that more thoughtshould be given to a proper negotiating structure. For example, the Commission couldestablish one or more parallel working groups to address other aspects of the IU, such asthe relationship with other legal instruments, international cooperation, role ofinternational organizations and information exchange. Reaching agreement on these lesscontentious provisions within the IU would serve as a confidence-building exerciseamong delegations.

Nonetheless, the decision to devote the first two days of the meeting to regionalconsultations signals an effort to better structure the negotiating process. There wasgeneral acknowledgment that the negotiations on both scope and access, and Farmers’Rights had resulted in an understanding of regional and inter-regional positions on thesehighly contentious issues. Delegates saw this as an important advance from considerationof these issues only six months earlier at CGRFA-EX3.

The formal outputs of the IU negotiations at this meeting — heavily bracketed texts onaccess and Farmers’ Rights — cannot capture the progress made during CGRFA-7. Themeeting resulted in the clarification of issues, further formulation of interests andconsolidation of positions — key ingredients for the effective completion of negotiationsfor the revision of the IU. The Commission’s designation of the IU negotiations as itsuppermost priority for the next biennium should provide ample opportunity to build onthe progress made at this meeting.

THINGS TO LOOK FOR

CONSULTATIVE GROUP ON INTERNATIONAL AGRICULTURALRESEARCH (CGIAR) MID-TERM MEETING: This meeting will take place from26-30 May 1997 in Cairo, Egypt. For more information, please contact the IPGRIRegional Office for Europe, Via delle Sette Chiese 142, 00145 Rome, Italy; fax: +39-6-5750309. Also visit their home page at http://www.cgiar.org/ipgri.

FIRST INTERNATIONAL CONFERENCE ON INTELLECTUAL PROPERTY OFINDIGENOUS PEOPLES FOR THE NEW MILLENNIUM: This conference,entitled “Conferencia Internacional: La Propiedad Intelectual de los Pueblos Indigenasante el Nuevo Milenio,” is scheduled for 2-6 June 1997, and will be hosted byWATU/Accion Indigena and Secretaria de Estado para la Cooperacion International ypara Iberoamerica. For information contact: Margrieth Nazareth Cortes, WATU/AccionIndigena, P. de la Chopera, Semisotano, 28045 Madrid, Spain; tel: +34 1 473 3031; fax:+34 1 473 2501; e-mail: [email protected]

INTELLECTUAL PROPERTY RIGHTS III: This conference, entitled“Intellectual Property Rights III - Global Genetic Resources: Access and Property RightsWorkshop,” will be held at the Holiday Inn Capitol, 550 C Street, SW, Washington DC,USA from 4-6 June 1997. The conference will review factors affecting global access toplant genetic resources and the effect of intellectual property rights on the exchange ofthese materials. For further information contact: American Society of Agronomy, 677South Segoe Road, Madison, WI 53711, USA. To register via the Internet tryhttp://www.agronomy.org/ipr/.

SPECIAL SESSION OF THE UN GENERAL ASSEMBLY: The SpecialSession of the UN General Assembly is scheduled for 23-27 June 1997. The session,which will be preceded by a week of informal consultations, will conduct an overallreview and appraisal of progress in implementing the UNCED agreements since the 1992Earth Summit. For more information, contact: Andrey Vasilyev, UN Division forSustainable Development, tel: +1-212-963-5949, fax: +1-212-963-4260, e-mail:[email protected] Also visit the Home Page for the Special Session athttp://www.un.org/DPCSD/earthsummit/.

CONFERENCE ON THE FUTURE FOREST POLICY IN EUROPE: Thisconference will take place from 15-18 July 1997 in Joensuu, Finland. For moreinformation, contact: Brita Pajari, tel: +358-13-252-223; fax: +358-13-124-393; e-mail:[email protected]

CONVENTION ON BIOLOGICAL DIVERSITY: The third meeting of theSubsidiary Body on Scientific, Technical and Technological Advice (SBSTTA-3) will beheld in Montreal from 1-5 September 1997. The third meeting of the Ad HocGroup on Biosafety (BSWG-3) is scheduled for 13-17 October 1997 in Montreal. TheFourth Meeting of the Conference of the Parties (COP-4) will be held in Bratislava,Slovakia, from 4-15 May 1998. For more information, contact the CBD Secretariat, 393Saint Jacques St., Office 300, Montreal, Quebec, H2Y 1N9, Canada; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: [email protected]

OTHER CBD-RELATED MEETINGS: A meeting of the Liaison Group onForest Biological Diversity will be held in Helsinki, Finland, from 25-28 May 1997. ALatin American and Caribbean regional meeting on the Clearinghouse Mechanism istentatively scheduled for July in Colombia. A workshop on the implementation of Article8(j) (traditional knowledge) is tentatively scheduled from 10-14 November 1997 in avenue to be determined. For more information, contact the CBD Secretariat.

INTERNATIONAL CONFERENCE ON MEDICINAL PLANTSCONSERVATION, UTILIZATION, TRADE AND BIOCULTURES: This meetingis scheduled from 16-20 February 1998 at the National Institute of Advanced Studies,Indian Institute of Science Campus, Bangalore, India. The meeting will focus on the issueof medicinal plants for survival. For further information contact the Foundation forRevitalisation of Local Health Traditions (FRLHT), No. 50, 2nd Stage, MSH Layout,Anandnagar, Bangalore 560 024, India; tel: +91 80 333 6909/0348; fax: +91 80 3334167; e-mail: [email protected]

EIGHTH SESSION OF THE COMMISSION ON GENETIC RESOURCES FORFOOD AND AGRICULTURE:<M> The next session of the CGRFA will take placeduring the second half of April, 1999. For more information, contact FAO, Viale delleTerme di Caracalla, 00100 Rome, Italy; tel.: +39(6) 52251; fax: +39(6) 52253152;Internet: http://www.fao.org or http://web.icppgr.fao.org.

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