List of Treaty constraints identified by stakeholders

Following the presentation of Treaty stakeholders and of their various interests and positions, I will now summarize the challenges and constrains faced by Treaty stakeholders in their implementation of the Treaty.

The above list of constraints is based on the stakeholders’ experience with the implementation of the Treaty. They are very diverse and deal with scien­tific, technical, legal, political and/or economic aspects of the Treaty imple­mentation. Many constraints cover several of these aspects at the same time. This makes it even harder to tackle them. In an attempt to facilitate the analysis of all the constraints identified, they have been categorized into four types of associated needs: the need for more clarity; the need for review and update; the need for further development; and the need for more coherence and coordination. This classification should help in identifying what type of legal procedures could respond to these needs (i.e. amending the Treaty, adopting agreed interpretations, adopting codes of conducts, etc.). This categorization is not exhaustive but allows to raise the following four questions (Frison et al., 2011b: 268-270).

Is there a need for clarification of Treaty provisions?

Many stakeholders have indicated the need to clarify various Treaty provisions to guide its implementation, in particular, of Article 11.2 and Article 12.3(d).

Table 5.2 List of constraints identified by Treaty stakeholders

A clear example of ambiguity concerns the scope of the following expression ‘PGRFA [...] that are under the management and control of the contracting parties and in the public domain’ (Article 11.2). The need to provide guid­ance in the interpretation of this and other ambiguities related to the MLS has led to the establishment by the Governing Body of an Ad Hoc Technical Advisory Committee.

Is there a need for further development of Treaty mechanisms and strategies?

Stakeholders have pleaded for rapid action by the Governing Body to develop further mechanisms and strategies in various aspects. A major exam­ple concerns the non-monetary benefit-sharing obligations (Article 13.2(a), (b) and (c)), which is poorly implemented according to many authors. A sec­ond example relates to the need to further develop financial mechanisms helping countries to implement the GPA priority activities, and especially the priorities that are not directly covered by funds already established (the GCDT or the Benefit-sharing Fund). Indeed, many priorities of the GPA do not foresee an appropriate and specific financing mechanism to implement them yet. This could perhaps be done by taking advantage of the experience of other existing fundraising mechanisms and funding organizations active in the agricultural sector (such as the Global Environmental Facility (GEF), the United Nations Development Programme (UNDP) or the International Fund for Agricultural Development (IFAD)). A third example where fur­ther development is needed relates to the Global Information System. At the last Governing Body meeting, progress was made on this question (see Chapter 4 above).

Is there a need for review or update of Treaty mechanisms and strategies?

The text of the Treaty and its implementation mechanisms and strategies request, in certain cases, such review and update processes. Several examples can be men­tioned, such as the review by the Governing Body of the levels of payment in the SMTA (Article 13.2(d)(ii)); or the periodic establishment of a funding target (Article 18.3).

Is there a need for a stronger coordination and coherence

to facilitate the Treaty implementation?

Many stakeholders have stressed the limited coordination and coherence at three levels, resulting sometimes in numerous competing and/or conflicting international obligations: (1) between governing bodies and secretariats of international institutions; (2) between national representatives attending different but related international fora such as the WTO, the CBD and the ITPGRFA; and (3) between different sectors and people at the national level responsible for the implementation of these different international obligations. (1) At the secretariat and governing body level, periodic meetings between Secretaries and joint meetings between Governing Bodies of different international organiza­tions could be two options leading to the development of common programmes and activities, mitigating the limited coordination and coherence problems. At GB 5 and 6, such impulse to collaborate further with the CBD, UPOV and WIPO has been provided by the Governing Body and the Treaty secretariat. An example of inter-sectorial cooperation in the negotiating process is provided by the mutual recognition and support between the Treaty and the Nagoya Proto­col on Access and Benefit-Sharing. The Protocol expressly refers to the Treaty as a complementary instrument of the international ABS regime (CBD, COP Decision X/1: §§ 6 and 11 of the preamble). (2) At the national delegation level, common preparatory meetings and inter-sectorial composition of delegations could be envisaged to prepare for international meetings. (3) At the national level, coordination by national inter-sectorial committees could contribute to improve coherence and coordination when implementing international obliga­tions at the national level.