Conclusion

Regarding the Treaty’s overall goals of food security and sustainable agriculture, the above study reveals that the way the MLS is designed and implemented does not seem to contribute significantly to reaching food security and sustainable agriculture.

On the matter of the difference in scope of the Treaty (all PGRFA) and of the MLS (only Annex-I PGRFA), the legal examination highlights the complications in the implementation process resulting from these discrepancies in scope. It also shows that Treaty stakeholders are more open than a few years ago in addressing this matter, inter alia by envisaging an enlargement of the annex I list of crops. However, this matter should be tackled together with the access and the Farmers’ Rights issues, as a harmonization of scope will not happen as long as facilitated access constraints persist.

To conclude on the analysis of the implementation of farmers’ rights, it is clear that in the consecutive Governing Body meetings the different Resolutions regarding FRs have become more substantial, more specific, and therefore more easily implementable.

Regarding facilitated access, the analysis shows several things. First, that access­ing seed by all PGRFA beneficiaries is not straightforward, i.e. the primary ben­eficiaries (smallholder farmers) do not benefit from Article 13.1). Second, that there remains a discomfort and distrust from a majority of contracting parties as to the potential enlargement of the Annex I list. This distrust is explained by the fact that many stakeholders do not benefit from the system. Consequently, reviewing the existing system will necessitate to leave some space to all stake­holders to participate in the process. Finally, it also reveals that further work is needed to design and promote sui generis PVP systems as well as adapt seed certification and commercialization regulations to recreate an effective farmers’ exemption.

On benefit-sharing, the study shows that the system is very ineffective. The lack of funding is crucial, but more so is the position in which the Treaty places ‘beneficiaries’ of the Benefit-sharing Fund, i.e. farmers. This position of ‘passive receiver’ of the system contrasts with the central role and position of farmers in our world food chain as food producers, biodiversity stewards and crop variety innovators. This contrast creates structural dysfunction in the Treaty’s stake­holder’s relationship that hinders reaching the Treaties objectives. This central role should be reflected in the Treaty.

Addressing the information and knowledge topic, the Treaty analysis demon­strates that the Global Information System developed in response to the Treaty’s obligations does not meet the needs of all stakeholders, but rather focuses on breeders and researchers.

On the seventh Treaty topic, the various rules and procedures regarding monitoring, sanctions, dispute settlement and amendments to the Treaty were detailed. The assessment stresses the creativity of the Third Party Beneficiary instrument as an innovative international law instrument. However, this tool could have a much greater potential in facilitating the implementation of the Treaty and suffers from a lack of transparency. Besides, the compliance mecha­nism seems to be kept voluntarily void, thereby being inefficient in helping contracting parties complying with all Treaty obligations. Since the entry into force of the Treaty, no dispute has arisen between contracting parties, i.e. at the state level. However, a dispute has arisen in 2012-2013 through the Third Party Beneficiary procedure - regarding two transfers of PGRFA without the required SMTA - and was resolved fairly quickly. Finally, regarding the amendment

The Treaty on Plant Genetic Resources 133 provision, contracting parties seem to direct the Treaty review process towards a formal amendment of the SMTA and Annex I, excluding the choice of negotiat­ing a protocol to the Treaty.

Last, regarding participation and governance issues, the legal analysis stresses that there is little space for other actors than states, as the only contracting par­ties to the Treaty, to formally play a role in the collective governance of PGRFA.

Notes

1 Parts of the following description are drawn from Garforth and Frison (2007), and Frison et al. (2011: chapter 1).

2 This quote expresses very well the narrative that was dominant during the negotiation of the Treaty and the state of mind of the different parties at stake, i.e. the fact that seeds used to be freely accessible to all, that their appropriation has led to the genetic erosion of agrobiodiversity and that a solution to reopen access to conserved seeds was to be cre­ated. While I share the point of view that excessive appropriation has had serious nega­tive consequences on biodiversity, farmers' social networks and livelihoods and even on innovation, I contest the idea that seeds have always been ‘in open access' and exchanged under no rules. Rather, I claim that seeds are exchanged under rules defined by com­munities within seed networks (Coomes et al., 2015; see also Girard and Frison, 2018) and that international regulations have to take this fact into account when designing and implementing systems managing the conservation and sustainable use of seeds (Frison, 2018). Girard (2018: 123) explains that ‘relying on archaeological evidence and inferences drawn from ethnographic data, it is well-established that seeds were domesticated and selected in “a decentralized manner, following largely informal but nonetheless binding rules and norms like reciprocity” (Schmietow, 2012: 74; also see Brush, 2004)'.

3 International Treaty on Plant Genetic Resources for Food and Agriculture, Food and Agri­culture Organization, 2400 UNTS 303.

4 Number of States listed as Contracting Parties on the Plant Treaty website on 1 March 2018. In comparison, the CBD has 196 Contracting Parties and the Nagoya Protocol has 104.

5 On 1 March 2018, signatory members to the Treaty were Colombia, Cabo Verde, Dominican Republic, Haiti, the Former Yugoslav Republic of Macedonia, Nigeria and Thailand. According to Article 18 of the Vienna Convention on the Law of Treaties, these signatory States have the obligation to refrain from acts which would defeat the object and purpose of the Treaty.

6 Vienna Convention on the Law of Treaties, 23 May 1969, 8 I.L.M. 679.

7 Book proposal submitted to Cambridge University Press.

8 An important exception to this general rule for underuse of PGRFA relates to the exploi­tation of in-situ wild relatives collected for direct use, i.e. plants that are collected from the wild and which are not cultivated. For these in-situ wild relatives, the ‘tragedy of the commons' over-exploitation dilemma may exist.

9 The Nairobi Final Act stresses the importance of the agreements reached within FAO and called for the IU to be revised in harmony with the CBD. Resolution 3 from the

Nairobi Final Act (the relationship between the Convention on Biological Diversity and the promotion of sustainable agriculture) was adopted 22 May 1992 in Nairobi. Available at www.cbd.int/doc/handbook/cbd-hb-09-en.pdf (last accessed December 2010).

WTO was an observer to Treaty meetings at the Second Session of the Governing Body in 2007.

Adopted during the International Technical Conference on Plant Genetic Resources in 1996 (Fourth International Technical Conference on Plant Genetic Resources, Leipzig Germany, June 1996). The GPA lists twenty agreed priority activity areas organized into four groups: In-situ conservation, ex situ conservation, utilization of PGR and institutions & capacity building.

National policies and structures for ex situ conservation are in place in most countries since FAO Member States have developed and implemented international policies which have been translated at the national levels. There is no need for more structure, bodies or policies (excepting the need for further funding, as in every field).

The GPA is included in the Treaty as a ‘supporting component' in its Article 14.

FAO Member States had to submit their country reports for Second States of the World's PGRFA report. The country reports include a number of aspects of direct relevance to the implementation of Article 6, namely: information systems; PGRFA-related policies and regulations; and utilization of PGRFA. These reports also fulfil the countries' obliga­tions under Article 17.3 of the Treaty to cooperate with the Commission in periodically assessing the state of the world's PGRFA in order to facilitate the updating of the rolling Global Plan of Action. See FAO, ‘Second Report on the State of the World's Plant Genetic Resources for Food and Agriculture', 2010 See also the First report FAO, ‘The State of the World's Plant Genetic Resources for Food and Agriculture', 1996 Available at www.fao. org/agriculture/crops/thematic-sitemap/theme/seeds-pgr/sow/sow2/en/.

The GCDT is considered a component of the Plant Treaty through the financial imple­mentation of ex situ conservation.

For example, in comparing two funding from the Treaty for conservation activities, as for ex situ conservation activities the GCDT endowment fund received US$ 170 million, while the Benefit-sharing Fund of the Treaty dedicated around US$ 10 to 15 million for in-situ and on-farm conservation projects.

The committee met twice: in 2012 and in 2015. see www.planttreaty.org/content/ ad-hoc-technical-committee-sustainable-use

The Stakeholder Consultation is accessible on the Treaty Website as an online sur­vey; available at www.planttreaty.org/sites/default/files/files/ITPGRFA_SU_toolbox_ stakeholder_survey_FINAL_EN.pdf.

For a synthetic view of these obligations, see the Resolution 7/2013 scheme on the Treaty website, available at www.planttreaty.org/sites/default/files/Res7_2013_schema_en.pdf. At GB 6, Australia, Canada, Ecuador, Egypt, El Salvador, Germany, Italy, Kenya, Lesotho, Madagascar, Mali, Niger, Pakistan, Seychelles, Syria, Sweden, Tanzania, Uruguay and Zam­bia have submitted a report (with sometimes very limited content). Available at www. planttreaty.org/content/sustainable-use-submissions.

Cooperazione Rurale in Africa e America Latina (ACRA) and consortium part­ners, the GREEN Foundation, Programa Colaborativo de Fitomejoramiento Par- ticipativo en Mesoamerica (FMPA), the Consultative Group for International Agricultural Research (CGIAR) and The Southeast Asia Regional Initiatives for Community Empowerment (SEARICE). Available at www.planttreaty.org/content/ sustainable-use-submissions.

There is a recognition that there is a multiplicity of terms that have been used in this area (including, inter alia,‘genetic sequence data', ‘genetic sequence information', ‘genetic information', ‘dematerialized genetic resources', ‘in silico utilization', etc.) and that further

The Treaty on Plant Genetic Resources 135 consideration is needed regarding the appropriate term or terms to be used (Resolution 9/2017: § 12 note 47; see also Resolution 5/2017: § 9).

23 It should be noted that the text in the Treaty differs significantly from the ‘Jurisdictional Scope’ of Article 4 of the CBD.

24 I thank Esther van Zimmeren for sharing this idea with me.

25 See Treaty website for the list of material available through the MLS www.fao.org/ plant-treaty/areas-of-work/the-multilateral-system/collections/en/.

26 The eleven Centres holding such collections in trust signed such agreements in 2006. The agreements are available on the Treaty website at www.planttreaty.org/content/ agreements-concluded-under-article-15.

27 An example of such copyleft license in the plant field exists with the Open Source Seed Initiative (OSSI). Van Overwalle (2018: 95-6) clearly explains this initiative: ‘Inspired by the free and open source software movement that has provided alternatives to proprietary software, OSSI was created to “free the seed” and “to make sure that the genes in at least some seed can never be locked away from use by IPRs”. OSSI sets forth that it is dedicated to maintaining fair and open access to plant genetic resources worldwide in order to ensure the availability of germplasm to farmers, gardeners, breeders and communities of this and future generations. The core strategy for achieving these goals is the dissemina­tion and propagation of the OSSI pledge and of OSSI-pledged varieties. The OSSI pledge claims to ensure the four Open Source Seed Freedoms for this and future generations: (1) the freedom to save or grow seed for replanting or for any other purpose; (2) the freedom to share, trade, or sell seed to others; (3) the freedom to trial and study seed and to share or publish information about it; (4) the freedom to select or adapt the seed, make crosses with it, or use it to breed new lines and varieties. The “copyleft” commitment ensures that the OSSI pledge is transmitted with any further distribution of the seed or the seed of any new varieties bred from it. In this way, OSSI aims to preserve the unencumbered exchange of plant germplasm for breeding purposes and guarantee the rights of farmers and gardeners to save and replant seed’.

28 Brazil has completely reversed its position on this issue, advocating since 2012/13 the need for expanding the MLS to all PGRFA, while it was initially one of the strongest countries opposed to this option. Personal communication.

29 For example, an ‘African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources’ was designed in 2000 where several provisions deal with the matter. However, according to the ‘Farmers’ Rights Legislation & Policy Database’, in Africa only Ethiopia has adopted a legislation dealing with FRs. According to this database, one African coun­try, eight Asian countries, one country in the Americas (Costa Rica), and no countries in Oceania or Europe have adopted legislations dealing with FRs. Available at www. farmersrights.org/database/index.html (Accessed on December 23, 2015).

30 The Benefit-sharing Fund website (changed in 2017) is available at www.fao.org/ plant-treaty/areas-of-work/benefit-sharing-fund/overview/en/

31 Submissions of information on interrelations with UPOV and WIPO have been presented at Governing Body 6 by seven civil society organizations and one by the European Seed Association. Available at www.planttreaty.org/content/farmers-rights-submissions

32 With the notable exception of the only submission handed by an international organiza­tion, which was sent by the European Seed Association (ESA) on 27.01.2015, and which identifies no actual or potential difficulties in implementing both the Treaty’s FRs and UPOV obligations. The ESA submission states that ‘[w]ith regard to Article 9, the UPOV Convention clearly should not be scrutinized on how it supports the various elements of Farmers’ Rights (such as for example protection of traditional knowledge or the par­ticipation of farmers in decision-making on matters concerning the conservation and sustainable use of PGRFA) for the simple reason that it is not a task for UPOV to deliver on such goals; the joint exercise should nevertheless reflect on areas where there are some

clear interrelations’. This rather laconic declaration by ESA, which is supported by UPOV, ignores the arguments presented by the other seven submissions. Moreover, maintaining this issue as a question to be dealt with at the national level, denotes a clear will to avoid any in-depth collaborative work on the subject at the international level, denying the clear international aspects of the recognition and implementation of both rights systems. Available at www.planttreaty.org/sites/default/files/ESA_15.0015.1.pdf

Until 2013, the accessions provided by the CGIAR constituted more than half of the total MLS material available.

It is only on 10 March 2015 that the Secretariat of the International Treaty made available online the statistics on the Multilateral System in order to increase the understanding of germplasm flows, as part of the Global Information System on plant genetic resources for food and agriculture.

On September 2014, this number had already raised to 450, thereby confirming that 2013 was a shift year in the implementation process.

The Treaty Data Store contains SMTAs reported by genebanks of Contracting Parties and of five International institutions related to the Treaty through its Article 15 (CIMMYT, IRRI, Bioversity International, CIP and ICARDA). The Data Store functions since 2012. Available at https://mls.planttreaty.org/itt/index.php.

Research method implemented for this section was ‘lighter’ than for Phase One, that is to say that the official documents have not all been studied in-depth and in a systematic manner, as these documents only cover proposals not yet adopted by Contracting Parties. A thorough legal analysis will be conducted at the end of the MLS review process, once the revised SMTA will be adopted.

The Global Crop Diversity Trust is considered an essential element of the funding strat­egy. It is an endowment fund being set up by FAO and Bioversity International (then IPGRI) under the policy guidance of the Governing Body of the Treaty to provide funds in perpetuity for ex situ collections of PGRFA.

In October 2013, the Secretariat issued a figure identifying the main donors of the BSF These are: Norway, the European Commission, Italy, Spain, IFAD (International Food and Agriculture Programme), Australia, Ireland, Germany and others.

Global Crop Diversity Trust website, available at www.croptrust.org/

In October 2013, the main donors of the BSF were: Norway, the European Commission, Italy, Spain, IFAD, Australia, Ireland, Germany and others.

In a Treaty Secretariat study, a model shows that with the current membership and avail­ability in the MLS, it will be 38 years before the current fundraising target is reached (Stannard et al., 2012: 156).

The Brazilian Agricultural Research Corporation (EMBRAPA) and the Indonesian Agency for Agricultural Research and Development (IAARD) hosted a workshop in Brasilia, Brazil (June 2012) and a second workshop in Bandung (July 2013), with a number of stakeholders to discuss the establishment of the Platform for the Co­Development and Transfer of Technologies developed as a major capacity building instrument.

The Clearing House Mechanism (Article 18.3 of the CBD) is coordinated by the execu­tive secretary and aims at the promotion and facilitation of technical and scientific coop­eration; of information exchange among Parties, other Governments and stakeholders; and creating a fully operational mechanism with the participation of all CBD Parties and an expanded network of partners. www.cbd.int/convention/articles.shtml?a=cbd-18.

DOI webpage of the Global Information System of the Treaty, available at www.fao.org/ plant-treaty/areas-of-work/global-information-system/doi/en/; www.planttreaty.org/ news/updated-version-multi-crop-passport-descriptors.

The International Rice Research Institute (IRRI) has made the first contribution to the gateway by placing with it the genome sequences of more than 3,000 rice varieties. See www.fao.org/news/story/en/item/335405/icode/.

More information can be found on the GLIS portal. www.fao.org/plant-treaty/areas- of-work/global-information-system/en/.

The Global Sustainable Development Report was launched in June 2015 during the 2015 session of the High Level Political Forum (HLPF) on Sustainable Development. See https://sustainabledevelopment.un.org/globalsdreport/2015.

There is a lot to say about traditional knowledge related to genetic resources. This specific issue falls outside the scope of this research but would definitely require further work. This is one of the major limits of the present book. For information on the intersection of traditional knowledge and IPRs see inter alia Posey and Dutfield (1998); Grosheide and Brinkhof (2002); De Carvalho (2005); Srinivas (2008); Von Lewinski (2008); Kamau and Winter (2009); Dutfield (2004).

‘These measures include the amendment of WIPO-administered patent systems (the International Patent Classification system and the Patent Cooperation Treaty Minimum Documentation). [...] WIPO has developed a toolkit to provide practical assistance to TK holders on documenting TK'. See www.wipo.int/tk/en/tk/

WIPO database on Traditional Knowledge, Traditional Cultural Expressions & Genetic Resources Laws, available at www.wipo.int/tk/en/databases/tklaws/

I was part of the Belgian delegation for two Governing Body meetings (the First Session in 2006 and Second Session in 2007), as legal advisor.

However, I have heard of such difficulties for a representative of a farmers' organization in other fora, for which it took four years to acquire the status of observer within the UPOV and WIPO, where the procedure might be different. Personal communication.

I have experienced this observer status under my University flag for four Governing Body sessions (2009, 2011, 2015 and 2017).

I have experienced this status within two other negotiating fora: the CGRFA and the WIPO-IGC. I was part of the delegation representing the CGIAR at the 13 th meeting of the CGRFA in 2011.

It is important to note that Shakeel Bhatti was the former Head of the Genetic Resources, Biotechnology and Associated Traditional Knowledge Section at WIPO, where he was responsible for WIPO's work on intellectual property law in relation to genetic resources, biodiversity, traditional knowledge and biotechnology. Shakeel Bhatti has taught inter­national patent law and genetic resource policy at several universities in India, Japan and Sweden. His background rooted in the IP field may explain some directions that have been taken in Governing Body governance and decisions, inter alia in relation to the Div­Seek initiative.

The Big Five are BASF, Dupont, Dow Chemical Company, Monsanto-Bayer, and Syngenta.

See same sub-section, point (4) below. The Informal Multi-stakeholder Dialogue initiative was endorsed by the Treaty Secretariat. See ‘Rio Six-Point Action Plan for the Interna­tional Treaty on Plant Genetic Resources for Food and Agriculture', Second High-level Roundtable on the International Treaty on Plant Genetic Resources for Food and Agri­culture, United Nations Conference on Sustainable Development Rio de Janeiro, Brazil, 21 June 2012. Available at www.planttreatyorg/sites/default/files/ME253e(Rio_action_ plan)01.pdf.

The composition of the WG-MLS is as follow: up to five members for Africa, Asia, Europe and Latin America and the Caribbean; up to 3 members for Near East; up to two mem­bers for North America and South West Pacific. Two co-chairs are elected from these regional representatives (Resolution 2/2013, point 23).

Prior preparatory meetings and/or conference calls took place between December 2013 and September 2014, but no official documents are openly accessible. Treaty Secretariat, ‘Facilitator's Summary: Informal Stakeholder Workshop on Multilateral System of the ITPGRFA', Submissions Received from Stakeholders Groups and International Orga­nizations: The Meridian Institute, document IT/OWG-EFMLS-2/14/Inf.4.1, Second Meeting of the Ad Hoc Open-ended Working Group to Enhance the Functioning of the Multilateral System, Geneva, Switzerland, 9-11 December 2014.

61 Twenty-four participants from farmers' organizations, civil society organizations, the seed industry and research institutes as well as five staff members were present at workshop. The list of participants can be found in the meeting document IT/OWG-EFMLS-2/14/ Inf.4.1

5