Facilitated access to PGRFA

The fourth theme addressed in the Treaty analysis is the facilitated access to PGRFA, set up by the Multilateral System of access and benefit-sharing (MLS). In Section 1, it was shown that using seeds sustainably was a crucial element for their conservation and for reaching food security.

The Treaty on Plant Genetic Resources 95 list of crops and forages is facilitated for a range of specific uses. Several Treaty provisions deal with the facilitated access concept: Articles 1, 10, 12, 13.1 and 15 and the obligations deriving from the Standard Material Transfer Agreement (SMTA). In this section, a presentation of the facilitated access concept will be followed by an assessment of its implementation.

Defining facilitated access under the MLS

The MLS functions as a virtual common-pool of PGRFA for which access is facilitated and which triggers benefit-sharing obligations upon their use (Man­zella, 2013: 150-163; Stannard, 2013: 243-263). The Treaty (Articles 10-13), complemented by the provisions of the SMTA, establish the rules regarding the material included in the MLS, the terms and conditions of its access and use, and how (monetary and non-monetary) benefits shall be shared. Managing access and benefit-sharing in a multilateral way and providing for a facilitated access to many important crops is considered as a major benefit in itself (Article 13.1). Under the MLS, access is free (or under limited processing and shipping fees) and facilitated through the use of the SMTA. The fact that no contract needs to be negotiated between providers and recipients puts every party on an equal footing and constitutes a major achievement in the exchange of genetic resources. For now, the CGIAR has been the most important provider of material on the basis of the SMTA, mainly to developing countries.

The prevalence of State’s sovereign rights going against the intrinsic logic of PGRFA

Following the adoption of the CBD (CBD Article 3; Rio Declaration on Envi­ronment and Development, Principle 2; Stockholm Declaration on the Human Environment, Principle 21), access to genetic resources has been hooked on to states’ sovereign rights to control the use of ‘their’ genetic resources (Treaty Article 10). FAO Conference Resolution 8/83; FAO Conference Report 1985 § 294; FAO Conference Report 1989 § 105; (Halewood, 2014 : 301-307) This ‘principle means that a state has the power and jurisdiction to establish the man­ner in which the resources will be shared and used as well as whether they are the object of property rights (private or public) and the conditions under which this may occur’ (Correa, 2013: 182).

To match the primacy of the sovereign rights principle (Aalberts, 2012; Nagan and Hammer, 2004: 141-187) with the idea of creating a common-pool of seeds (to be accessed without any systematic prior informed consent by contracting parties), negotiators proposed to ‘twist’ the principle (ibid). By stating in Article 10.2 that the MLS is established through the exercise of states’ sovereign rights, contracting parties turned around the necessity to obtain prior informed consent for each request to access genetic resources on a state’s territory. By doing so, unrestricted availability of germplasm was ambitioned without renouncing to the primacy of national sovereignty (Halewood, 2014: 301-307).

However creative this solution might have been, it has only built around the difficulties that the sovereign rights principle entails on access to genetic resources, i.e. enclosure due to appropriation. Furthermore, it has not explicitly acknowledged the necessity of creating a mechanism where common man­agement adapted to the resource would prevail. Although clearly reflecting a majority of the contracting parties’ intention, this strong formal recognition of sovereign rights as a founding principle of the MLS is, in essence, contradictory with the intrinsic logic of PGRFA conservation and sustainable use and with the founding principle of unrestricted availability of seeds under the IU.

The facilitated access to Annex I PGRFA in the MLS

The Governing Body of the Treaty has adopted a specific contract, i.e. the Standard Material Transfer Agreement, in order to facilitate the exchange of PGRFA material through its MLS. The SMTA is a contract between two parties (a provider and a recipient) defining the terms and conditions for the transfer to take place. As a contract, the SMTA operates at the level of private contract law, rather than public international law (even if one of the parties, or both, are public entities). On this basis, the SMTA imposes rights and obligations only to its parties. However, there is a major difference between the SMTA and a ‘normal’ material transfer agreement: the origin of the mate­rial transferred is the provider and the destination of the benefits is the MLS (through the BSF) rather than the provider of the material. There is therefore a tripartite relation between the usual provider, the recipient and the MLS as a third virtual ‘entity’. In order to recognize the latter, the SMTA has cre­ated the ‘Third Party Beneficiary’ (3PB, see below in this chapter), as formal representative of the MLS.

This SMTA is used by all providers and recipients willing to exchange mate­rial under the scope of the MLS (for a detailed explanation of its functioning see Manzella, 2013). This scheme is applicable to PGRFA covered by the MLS, that is to say material listed in the Annex I of the Treaty and all PGRFA held in trust by the CGIAR, but also in the case where the contracting parties (i.e. providers and recipients) agree to use the SMTA for non-Annex I PGRFA, or if a Contracting Party (like Germany and The Netherlands) decides to impose at the national level the use of the SMTA for all PGRFA under its control and management. The purpose of the access must remain for research, breeding, or training for food and agriculture (Article 6.1 SMTA), otherwise the general rules of the CBD (Article 15) and its Nagoya Protocol (Article 6) should be applied.

The Treaty on Plant Genetic Resources 97 equitable share of the commercial benefits to the Benefit-sharing Fund (Treaty Article 13.2d(ii)) if further access to the material commercialized is restricted by the recipient, for instance through IPRs (Chiarolla and Jungcurt, 2011). Payment is otherwise voluntary.

Finally, material can be transferred between contracting parties and non­contracting parties with the SMTA when the material originates from the MLS (Article 6.4 SMTA). However, a provider from a non-member country may provide access to non-MLS PGRFA to a recipient in a Treaty Contracting Party under whatever contract he chooses (in accordance with its national legislation), even if the material is a duplicate from material covered by the MLS. In this manner, a recipient (i.e. the seed industry) may avoid using MLS material in order to escape the benefit-sharing related obligations.

Intellectual property rights and the Multilateral System

Article 12.3(d) — one of the most sensitive provision of the MLS — requires that recipients shall not claim IPRs that would limit facilitated access to the PGRFA or ‘their genetic parts and components, in the form received from the Multilat­eral System’. Besides, Article 12.3(f) recognizes existing IPRs. These provisions can be interpreted in very different manners. Some parties fear that recipients will patent their products and keep them outside the MLS (Helfer, 2005). In order for IPRs to support the Treaty’s objectives, IPRs should not limit the facilitated access to PGRFA in the MLS and IPRs should be a means to capture value from the development and commercialization resulting from the facilitated access to crops in the MLS.

It is clear that a recipient cannot take IPRs that prevent others from obtaining, from the MLS, a PGRFA in the same form in which it was originally sent to the first recipient, e.g. a seed or a cutting (Article 6.2 SMTA). It is still not clear, however, if a recipient can seek IPRs over isolated parts and components of those seeds or cuttings from materials within the MLS, such as genes. In any case and importantly, independently of the outcome of this debate, such property rights must not prevent future recipients from obtaining the same seeds or cuttings (Halewood and Nnadozie, 2008: 129). In the future, a Governing Body decision or a dispute settlement decision might provide a common interpretation on the terms ‘parts and components, in the form received’. For now, it is considered that IPRs do not hinder too much the facilitated exchange of PGRFA, although voices heard from developing countries in particular put forth that IPRs limit

the efficient implementation of the MLS (Frison et al., 2011b: general conclu­sion; Mwila, 2013).

The Treaty does not prevent recipients from seeking IPRs over improved products that incorporates materials received from the MLS. If the material is restricted or protected in a way that does not allow further recipients to use it for further breeding and research, the recipient has the obligation to share a percentage of the commercial benefits back to the MLS (see below).

Patents may limit what enters the MLS but not alter the material already included in the system as long as it is in the system. However, material may be taken out of the MLS in two different ways. First, anyone can simply decide to stop conserving an MLS accession; if there is no duplicate, the material is lost. Second, a Member State may step out of the Treaty (Article 32). In this case, MLS material from that country, which has not been transferred to another country, would leave the MLS and be available for patenting.

Implementing the facilitated access to the Multilateral System

Since June 2004, contracting parties have been busy creating all the necessary tools and instruments to operationalize the Treaty and implementing all self­standing obligations from the Treaty. Implementation of the MLS has certainly concentrated most of contracting parties’ attention since the entry into force of the Treaty (together with the Funding Strategy). This constitutes Phase One of the implementation covering the period 2004—2013. By the end of Phase One, contracting parties came to the observation that the MLS was not fulfilling their expectations in terms of facilitated access and in terms of financial outcomes for benefit-sharing activities (Galluzzi et al., 2016: 5). As a reaction, contracting parties initiated a review process in order to ‘increase user-based payments and contributions to the [BSF]’, and ‘enhance the functioning of the [MLS]’ (Resolu­tion 1/2015: § 2 and point 4). This review process launched the implementation Phase Two, from 2013 to nowadays, which will attract more attention below.

Implementation Phase One 2004—2013

During the first period, contracting parties devoted their efforts to building an efficient MLS. Through numerous Governing Body Resolutions, they adopted the necessary tools and instruments, such as the SMTA (Resolution 2/2006), the Third Party Beneficiary entity (Resolutions 5/2009; 5/2011; 9/2013), the mechanism to promote compliance and address issues of non-compliance (Resolutions 3/2006; 1/2007; 2/2009; 2/2011; 9/2013), as well as the Fund­ing Strategy (Resolutions 1/2006; 3/2009; 3/2011; 2/2013) and the Benefit­sharing Fund, etc. to fulfil their obligations. This busy process was facilitated

The Treaty on Plant Genetic Resources 99 by the work of the Secretariat of the Treaty and its Secretary, who organized six Governing Body meetings and numerous inter-sessional meetings of various working groups/contact groups/ad hoc working groups, expert groups, etc. In the following sub-section, various aspects of this implementation process will be analysed. While the efficient institutional functioning of the Treaty will not be addressed (for details see Frison, 2016: 178-187), I will focus on the actual (much more difficult) implementation of the MLS obligations by contracting parties. An evaluation of the collections and accessions in the MLS, as well as data on the use of SMTAs and flows of PGRFA will be addressed.

One should not underestimate the theoretical breadth of what is included in Annex I. As a matter of fact, all PGRFA, from the moment they are part of the Annex I list and under the management and control of the contracting parties and in the public domain, are ‘automatically’ included in the MLS without any declaration or notification. It is clear that the Treaty provisions impose no specific procedure to include material in the MLS. This is what happens in theory. In reality however, ‘actual use of material depends on information being made public about what materials are available and where they may be accessed, along with related non-confidential information’ (IT/AC-SMTA-MLS 1/10/ Report: 11; IT/AC-SMTA-2 MLS 2/10/Report: point 12; IT/AC-SMTA-MLS 3/12/Report: points 12 and 15; IT/AC-SMTA-MLS 4/12/Report: point 9). Although no specific procedure is explicitly defined in the Treaty (except from the fact it should be as simple as possible with not tracking obligation; see Treaty Article 12.3(b) and SMTA 5(a)), the concrete need to know what accession is part of the MLS constitutes a logical prerequisite for users to be able to identify potential material to be accessed. To this end, the Treaty Secretariat has made available specific tools to help contracting parties in this process of identification. First, a ‘Letter of Notification of Inclusion of Material in the Multilateral System’ can be downloaded on the Treaty website. ‘Notification to the Secretary, or an equivalent public statement, creates a legitimate expectation on the part of potential recipients that the materials in question will be made available under an SMTA, on request’ (IT/AC-SMTA-MLS 2/10/Report: 5). The Treaty Secretariat also established a website to publish the notifications of material included in the MLS. In some cases, these notifications contain a link to web portals where the samples are documented or where the material can be ordered online. Following a recommendation of the Ad Hoc Advisory Committee on the SMTA and the MLS (IT/AC-SMTA-MLS 2/10/Report: 9 and in particular point 65), a ‘Handbook to the Implementation of the Multi­lateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture’ (IT/AC-SMTA-MLS 3/12/Inf.22/Inf.2) was drafted to help countries implement their obligations, including that of including PGRFA in the MLS. Following this guidance, the MLS has been furnished with material designated by contracting parties (Article 11.2), by the CGIAR Centres and other international organizations (Articles 11.5 and 15), by other natural and legal persons (Article 11.4), as well as the material resulting from BSF projects and included in the MLS.

As of March 2018, 43 out of 145 contracting parties notified one or several lists of accessions to the Treaty Secretariat. One can objectively say that this participation could significantly be improved. This clearly shows that the ‘auto­matic’ inclusion of material in the MLS is not such an easy and straightforward process. Indeed, it requires that national repositories maintain updated and complete list of the material with all the necessary information (passport data, etc.). This is clearly not the case for many countries (IT/AC-SMTA-36 MLS 2/10/Report: 36). Furthermore, the fact that the negotiation of the Annex I list of PGRFA impose on contracting parties to distinguish what seeds are covered and what seeds are not covered by the MLS creates a significant administrative burden on Member states, in particular for developing countries. Indeed, many contracting parties need more support to operate this technical identification of the material covered by Annex I, in the form of capacity building. There is no doubt that the system would be much easier if all PGRFA were covered by the MLS and contracting parties would only have to provide access to their national databases of collections, without the need to investigate, almost accession by accession, whether the content of their collections enters the MLS or not. Some countries have adopted this philosophy by developing a wide national policy providing access to all the PGRFA under their control and management using the SMTA. The Netherlands and Germany decided to do so and already effec­tively use the SMTA for all the crops and forages under their management and control, thereby de facto widening the MLS.

In accordance with Treaty Articles 11.5 and 15, the CGIAR centres have included their PGRFA in the MLS, through a letter of agreement signed on 16 October 2006 between the eleven IARCS of the CGIAR and FAO, as legal entity representing the Governing Body. This collaboration is the logical con­tinuation of the previously International Network of Ex Situ Collections under the Auspices of FAO held in trust for the international community since 1994. Other international research centres have also signed such agreements with the Treaty. In furtherance of the CGIAR policy of widest diffusion of PGRFA, contracting parties agreed that CGIAR centres commit to using the SMTA for the transfer of all material held by CGIAR collections, not only Annex I mate­rial (IT/GB-2/07/Report: §§ 66-68). This aimed at simplifying the exchange procedures by avoiding to use different MTAs and hence reduce costs. Transfers are made with the same SMTA, complemented by an interpretative footnote which clarifies that the SMTA provisions should not be interpreted as preclud­ing the use of the SMTA for transfers of non-Annex I material, collected before the entry into force of the Treaty (IT/GB/2/07/13 rev.1: § 9). Following this new enlargement of the material covered under the MLS, material originating from the CGIAR constitutes an important percentage of the accessions made available under the MLS,³³ with more than 665,684 accessions notified to the Treaty Secretariat on a total of 1, 561,638 materials notified by the end of 2017 (IT/GB-7/17/Inf.4: 4; for a detailed overview of the material per country see ‘Appendix: Plant Genetic Resources Available in the Multilateral System’ of the same document).

Article 11.3 enables natural and legal persons within the jurisdiction of con­tracting parties and who hold PGRFA listed in Annex I to include such PGRFA in the MLS. Similarly to the notifications by contracting parties, very few natural and legal persons have done so (only six between March 2009 and 2016).

Finally, one last option contributes to furnish the MLS with accessions: incorporating the material resulting from the activities under the calls of the Benefit-sharing Fund (IT/AC-SMTA-MLS 4/12/Report: point 9). While there is no such obligation stated in the Treaty or in its operationalizing instruments documents, including material resulting from BSF funded projects follows the intentions of contracting parties to have as wide an MLS as pos­sible. It is reasonable to interpret this fact as an implicit strong encouragement to voluntarily contribute material to the MLS (Treaty Articles 11.3, 11.5, 15; SMTA Article 6.9).

At every Governing Body Session and in inter-sessional meetings, contracting parties have tackled the issue of the inclusion of PGRFA in the MLS and have integrated it in Resolutions related to the implementation of the MLS (Resolu­tion 4/2009: points 7-11; Resolution 4/2011: points 3-5; Resolution 1/2013: points 14-17; Resolution 1/2015: point 11). By doing so, states recalled the importance of the ‘availability of plant genetic resources for facilitated access [as] the foundation of the Multilateral System’ (IT/AC-SMTA-36 MLS 2/10/ Report: 36), thereby insisting upon inclusion being a primary precondition for the system to be effective.

The adoption of the text of the SMTA at the first meeting of the Governing Body enabled contracting parties to start implementing the facilitated access obligation as from January 1st, 2007. After an enthusiastic beginning when figures (from the CGIAR) rapidly showed that SMTAs were used to exchange PGRFA all around the world, the enthusiasm lowered significantly after a few years. Indeed, SMTAs are signed by recipients and providers to exchange seeds under the Treaty, but these users seem to be those very same users accessing PGRFA through the previously existing CGIAR collections. A report (IT/ GB-4/11/Inf. 5) showed that from 1 January 2007 to 31 December 2009, the Centres distributed a total of 1.15 million samples of PGRFA. Approximately 84 per cent of the samples were sent to developing countries or countries with economies in transition, 9.5 per cent to developed countries and 6.5 per cent to CGIAR Centres. 18 per cent were sent by the Centres’ genebanks, and 82 per cent from the breeding programmes’. Few other data were available before 2013,³⁴ i.e. on the number of SMTAs signed (other than those with CGIAR centres) or on the type of providers and recipients, or on the type of material exchanged. A study stated that by the end of June 2013, there were 261 users³⁵ registered in the Treaty Data Store.³⁶

These figures show that important companies from the Seed Industry (except from the European Seed Industry) tend to avoid accessing seeds using the SMTA. Besides the cost related to potential benefit-sharing obligations, the administra­tive burden related to the SMTA might explain the reluctance in its use to access PGRFA, as well as the fact that they own important private genebanks. Although the initial aim was to render access as simple as possible, the fact that a contract (even a standard one) has to be filled in with specific information (notably on the pedigree of the material), signed and sent, and that relevant information needs to be transmitted to the Third Party Beneficiary, is quite a burden for the providers and recipients (IT/AC-SMTA-MLS 2/10/Report: §§ 21-29 and Appendixes 4 and 5; IT/AC-SMTA-MLS 2/10/3). Issues about traceability and control of transfers are also regularly mentioned by Treaty stakeholders. Even for the CGIAR Centres’ using the SMTA for all their material exchanges (including non-Annex I material) it is a challenge. SMTA Article 6.5(b) requests the pro­vider to identify the material received from the MLS and specify that the trans­ferred PUD derives from that material. This obligation poses a problem to the CGIAR, because all improved material are transferred with an SMTA, thereby creating enormous tracking obligations with most of the material exchanged (Resolution 1/2015: §§ 22-25).

To enhance the use of the SMTA, the Treaty Secretariat created the ‘Easy- SMTA’ online tool, which aims at facilitating the signature and handling of SMTAs. However, this does not seem to have dramatically increased its use and contracting parties came to the conclusion that the SMTA had to be reviewed in order to ‘increas[e] user-based payments and contributions to the [BSF]’, and ‘enhance[e] the functioning of the [MLS]’ (Resolution 1/2015: § 2 and Point 4).

Implementation Phase Two 2013 — nowadays (end 2017)

The realization that it is difficult for contracting parties to implement their obligations and that this does not allow all users of PGRFA to effectively benefit from the MLS has functioned as a wake-up call at GB5. This was translated into an official review process through the establishment of the Open-ended Work­ing Group on the MLS and the Advisory Committee on the Funding Strategy. In this section, the purpose is not to analyse paragraph by paragraph the work conducted by the above mentioned working group and advisory committee;³⁷ the review is not complete yet and options evolve from one GB to the other. Rather, a brief explanation of the main solutions sought for the enhancement of the MLS by contracting parties at the last GB (GB7, held in Kigali, Rwanda, 30 October - 3 November 2017) will be provided and commented upon. Fund­ing issues are definitely crucial to the functioning of the system. However they are not legal instruments per se, and therefore they fall out of the scope of this analysis.

The work carried out by the various working groups, advisory commit­tee, contact groups and co-chairs has evolved from the initial mandate to ‘increase user-based payments and contributions to the BSF in a sustainable and predictable long-term manner, and enhance the functioning of the MLS by additional measures’ (Resolution 2/2013: point 23), to the lately renewed mandate to ‘develop a proposal for a Growth Plan to attain the enhanced Mul­tilateral System, taking into account Annex 1 to this Resolution, as appropriate;

The Treaty on Plant Genetic Resources 103 revise the Standard Material Transfer Agreement [...]; and elaborate criteria and options for possible adaptation of the coverage of the Multilateral System’. (Resolution 2/2017)

To help contracting parties progress in the negotiation, various study-topics were requested by the Treaty Secretariat, for which background studies (Moeller and Stannard, 2013), synoptic studies (IT/OWG-EFMLS-2/14/3; IT/OWG- EFMLS-2/14/4; IT/OWG-EFMLS-2/14/5; IT/OWG-EFMLS-2/14/6) and research studies were outsourced. These documents allowed the negotiators to progress on the matter, but not sufficiently to adopt firm proposals.

Contracting parties came to the conclusion that one option to enhance the functioning of the MLS was to revise the financial benefit-sharing mechanism included in the SMTA (mainly Articles 6.7 and 6.11) to render the SMTA more attractive. One of the solutions explored is to create a ‘subscription payment’ mechanism (IT/OWG-EFMLS-4/15/4; IT/GB-6/15/06 Rev 2; IT/OWG- EFMLS-3/15/Inf.5), which would become a real alternative to the Articles 6.7/6.8 standard benefit-sharing mechanism. The rationale behind this proposal is the same as the one behind SMTA Article 6.11 but enhanced with the recog­nition that both payment options are closely interrelated and that both options should be equivalent in terms of costs and benefits for the users, for them to be able to actually make a choice between using one or the other (and therefore be encouraged to use the SMTA rather than acquiring material by other means). To widen up the range of situations where payments would be due and to follow on the example given by Norway, the Subscription System proposed at GB7 would entail payments at different (not yet negotiated) rates, i.e. when a recipi­ent commercializes a product that would remain available without restriction as well as when commercializing a product that is not available without restriction to others for further research and breeding (Resolution 2/2017: Annex 2, point 1 and 2; Annex 3, Article 3).

Article 6.11 functions as an upfront payment scheme. This option is called the ‘crop-based alternative payment scheme’ because benefit-sharing is trig­gered by the sales of products belonging to one specifically identified crop or related products (other products that are PGRFA belonging to the same crop). This alternative payment scheme is rarely chosen by SMTA users (Correa, 2011: 249-256). As mentioned above, the payments are to be made whether the prod­uct is under restricted access or not. The rate is of 0.5 per cent of the sales of the product or related products during a ten-year period of time. The seed industry has repeatedly highlighted that this rate was too high (Guiramand et al., 2012). Furthermore, it is not clear what happens once the ten-year period is over: Do parties fall back on the 6.7 regime? And if so, would this mean that tracking obligation would need to be complied with since the signing of the SMTA?

In the last proposal, the revised SMTA would provide

the option to subscribe to a Subscription System. Companies and other users interested in becoming subscribers of the Subscription System would

be given a period of one year after a date to be set by the Governing Body to declare their willingness to sign on to the Subscription System. The new and revised SMTA containing the Subscription System as an access mecha­nism would automatically become effective, once companies that represent a to be agreed amount of money corresponding to approximately [30%] of global seed sales of crops contained in the Multilateral System (i.e. listed in Annex I) sign on to the Subscription System.

(Resolution 2/2017: Annex 1 Growth Plan)

The proposal further suggests that ‘at the same time that the Governing Body adopts the new and revised SMTA, it should decide on amending Annex I of the Treaty, including a new list of crops. The amended Annex I would (1) delegate the power of future expansion of the Multilateral System to the Governing Body, and (2) include a list with a first set of specific crops, thereby once again linking coverage of the MLS with the conditions of access. Furthermore, to facilitate the notification of accessions by contracting parties, the Treaty Secretariat encour­ages to use the new tool they developed for that purpose, i.e. the Digital Object Identifiers (DOIs) of the Global Information System (see below), as one of the methods for the identification of material available in the MLS (Resolution 4/2017: point 4).

While the issue of adapting the coverage of the MLS remained ‘taboo’ until the 2011-2013 biennium, contracting parties are now much more open to discuss­ing this option (Resolution 2/2017). This is definitely a good thing in my view. Indeed, in an ideal world, if the MLS covered all PGRFA everywhere, for all food and agriculture purposes, and if the payment scheme was of an upfront payment type, users would have no other choice than acquiring material through the system. The system would be unique, uniform and simple. There would be no tracking obligation and potentially no need for any contractual (formal) agree­ment. Of course we are far from this utopia, however, there are voices expressing their willingness to move in that direction (Stannard, 2013).

While it is undeniable that a review is needed, the way in which negotiators have tackled this issue sounds partly unproductive to me. The highly technical studies, projections and scenarios proposed at GB6 in the numerous studies on which negotiators have based their discussions have added confusion rather than simplified the proposed mechanism. The proposal for a Subscription System at GB7 seems simpler and more realistic, but the tsunami caused by the vivid dis­cussion on the DSI as ‘a cross-cutting matter affecting the entire Treaty agenda’ (ENB, 2017: 14), does not predict a rapid decision on these matters. It remains to be seen what will come out of the review process at GB8 in 2019.

In this section, the purpose was to understand what covers the facilitated access to Annex I PGRFA obligation and to evaluate its implementation. The analysis above shows that contracting parties have difficulties in providing access to their resources; that accessing seed by all PGRFA beneficiaries is not straight­forward; and that working on reviewing the existing system will necessitate to leave some space to all stakeholders to participate in the review process as well

The Treaty on Plant Genetic Resources 105 as in the implementation of the forthcoming system. I support a simplification of the facilitated access procedure not for the sake of homogenization, which I believe is detrimental to the diversity of resources and their management mecha­nism, but to render the system implementable. A subscription system might be one way of rendering the process easier to implement and more attractive to some stakeholders. However, I question the utility of remaining in the same appropriation paradigm regarding seed management. I argue that a shift needs to operate from considering the physical resources as exclusively appropriable, the dematerialization of resources openly accessible under no rules, and the facili­tated access rationale based on IPRs, to a holistic approach to seed management, where interdependence between seeds and their custodians is put at the core of the system, with an inclusive approach to the right to use those resources for the benefit of humanity, present and future (see below final chapter).