Scope of the Treaty

The scope of the Treaty refers to two different aspects: the resources the Treaty relates to and the boundaries of the Treaty application. A description of specific rules and procedures relating to the scope of the MLS will be provided, before a short description of where contracting parties stand regarding the implementa­tion of these provisions.

Defining what material is covered by the Treaty and its MLS

Defining what should be understood by PGRFA is crucial, as it determines to what resources the Treaty (and its objectives of conservation, sustainable use and access and benefit-sharing) should be applied. Generally speaking, PGRFA are crops and forages used as nutrients for humans and animals. The notion of ‘PGRFA’ encompasses both the physical material (i.e. the plant, the seed, the tuber, cuttings, bulbs, etc.), and the related information and data accompanying the material. Indeed, PGRFA would be useless to farmers, scientific research­ers and breeders if they had no information about the characteristics of a specific variety compared to another, or about the environment (soil, weather, ecosystem conditions, etc.) where this variety comes from. PGRFA should therefore be approached as being both a tangible and an intangible good, as these two sides of the same coin are intrinsically linked (Brahy, 2008). This dual character complicates the management of seeds significantly, especially as far as the intellectual protection of the intangible aspect of the PGRFA is concerned (Correa, 1999).

The definition of ‘PGRFA’ and ‘genetic material’ are determinant in under­standing the scope of application of the Treaty and of the MLS and consequently in delimitating its implementation. Article 3 specifies that the ‘Treaty relates to PGRFA’, that is to say to ‘any genetic material of plant origin of actual or potential value for food and agriculture’ (Article 2 § 4).

The Treaty on Plant Genetic Resources 83 is narrowed by the consideration that the said value should be related to food and agriculture purposes. This is consistent with the lex specialis characteristic of the Treaty as opposed to the CBD.

Regarding the genetic material, its definition mentions ‘functional units of heredity’. There has been a debate during the negotiation of the Treaty as to specifying in Article 2 whether the functional units of heredity defined as ‘genetic parts or components’ (understood as being individual genes or gene sequences) would be considered as PGRFA by themselves (Moore and Tymowski, 2005: 35). As a compromise, contracting parties left the definition ambiguous, although it might mean leaving the Governing Body to interpret the matter at a later stage. However, if the term ‘functional units of heredity’ is in the end not specified, according to Moore and Tymowski (ibid), it ‘would include at least all genetic elements containing DNA, i.e. genes’. The lack of precision on contentious terms was voluntary to allow moving on with the negotiation. However, it has not erased the contentious views but only postponed the agreement on difficult questions to the implementation phase, making it more complex.

A good example arose during GB7 with the touchy question of digital/ genetic sequence information (DSI)²² (Resolution 13: 2017; also see 9/2017: § 12; 10/2017: § 14). As a phenomenon of dematerialization, DSI covers ‘the information and knowledge content of genetic material [that could be] extracted, processed and exchanged in its own right, detached from the physical exchange of the plant genetic material’ (FAO, IT/GB-5/13/4).

consider at its Eighth Session the potential implications of the use of “digital sequence information” on genetic resources for the objectives of the International Treaty, and to consider it for inclusion in the [Multi-Year Programme of Work 2018—2025] at that meeting.

(Resolution 13/2017: point 2)

Furthermore, contracting parties and other relevant stakeholders are requested to provide information on the

relevance of “digital sequence information” on PGRFA for food security and nutrition, in order to facilitate consideration by the Governing Body, at its Eighth Session, of the potential implications of the use of “digital sequence information” on PGRFA for the objectives of the International Treaty, including exchange, access and the fair and equitable sharing of the benefits arising from their use.

(Resolution 13/2017: point 4)

The Treaty Secretariat shall compile this information for the next GB.

In an area where DSI gain more and more value in plant breeding biotech, defining whether DSI is considered part of the ‘genetic material’ or not will have huge implications in terms of benefit-sharing and IPRs. It has been argued that, as coded information, DSI were not genetic material as covered by the Treaty (EU, Japan and Seed Industry declarations made during GB7) even though the genetic sequence originates from the coding of physical PGRFA originating from the MLS. As argued by Halewood et al. in a very recent article (2018: 2), laws regulating the access and use of PGRFA ‘require users to share monetary benefits in exchange for access to, and use of material genetic resources in the development of new commercial products; they do not extend in scope to genetic sequence information’ (emphasis added). This emphasis on the ‘material­ity’ of PGRFA is questionable, because it is written nowhere in the Treaty that PGRFA refers to the ‘material/physical’ shell of the genetic resources. Accord­ing to their interpretation, DSI falls outside the scope of the MLS obligations, in particular the benefit-sharing obligation, but also (and for now this is not highlighted in the debate) the IPRs obligations (Article 12.3d). According to these stakeholders, DSI should be freely available for further use without falling under the scope of the MLS.

I do not share this view and I strongly question this interpretation of the Treaty clauses. Article 12.3.c) of the Treaty states that ‘[a]ll available passport data and, subject to applicable law, any other associated available non-confidential descriptive information, shall be made available with the plant genetic resources for food and agriculture provided’. Halewood et al. in the same article explain that DSI technology enables

the extensive characterization and traceability of the stocks that are cur­rently held by gene banks. [...] Moreover, extensive genotyping, linked to measured traits, allows repositories to be searched for strains containing desired genetic elements and/or trait characteristics.

(Halewood et al., 2018: 3)

Therefore, Halewood et al. confirm that the purpose of DSI technology is to characterize PGRFA in a more efficient manner. According to me, this char­acterization process is precisely what Article 12.3.c) refers to, i.e. the passport

The Treaty on Plant Genetic Resources 85 data and descriptive information of the PGRFA. And this is no more than logic. Contracting parties know very well that accessing the physical part of the PGRFA on its own is of no use. This is precisely why, since the beginning of the design of the Treaty, they included the obligation to provide the related information with the PGRFA. This is also the reason why the definition of the ‘parts and components’ terms was so contentious during the negotiations. It is hypocritical to state that the genetic information extracted from a variety (i.e. the DSI) is not defined as its ‘parts and components’ simply because one can now use the coded information to synthesize a gene and insert it in a variety without needing to access to the original physical material (whereas this was not so obvious at the moment the Treaty was negotiated and signed). Validating such interpretation would render the whole MLS void. The fact that we can now provide more precise genetic information related to the PGRFA using genomics does not change the purpose of the exchange or the (material and informational) object accessed. The coded information derives from the physical material and is used to design a new variety. Doing so, the DSI will regain physicality in an improved variety to be commercialized and has no value outside of its physical shell. Not including the DSI in the definition of the genetic material is simply a means to avoid being obliged by the MLS benefit-sharing provisions as well as the IPRs clauses. This is clearly not fair, nor equitable. This interpretation does not respect the spirit or the objectives of the Treaty and it does not implement properly the interpretation principles of the Vienna Convention on the law of Treaties.

Coverage of the Multilateral System

The scope of the Treaty applying to all PGRFA (Article 3)²³ encompasses a more limited coverage for the MLS (Article 11), similar to a Russian doll (Frison, 2016: 123-148). Indeed, within the Treaty’s general scope of application, the specific clauses on Access and Benefit-sharing obligations (the MLS) only relate to the Annex I list of 64 crops and forages. It is estimated that these crops, combined, provide about 80 per cent of our food from plants. However, crops important to food security like soybean, groundnut or tomato remain excluded from the system.

Some authors also argue that the scope of the Treaty is too limited because the facilitated access only applies to PGRFA used for breeding, research and training purposes (Lawson, 2009: 252). However, the scope of the MLS - i.e. material listed in Annex I for the uses prescribed by the Treaty — is a reflection of the political climate during which the Treaty was negotiated (Frison et al., 2011a: chapter 2), and which, in many ways, prevails until the present day. It is clear from the history of the negotiations, and from the way in which the list of materials included in the MLS fluctuated during the negotiations (Lim and Halewood, 2008: 249), that the Treaty might never have been finalized if some delegations would have insisted on the MLS covering all PGRFA for all purposes. Thirteen years after its entry into force, a proposal to enlarge the scope of the MLS to all PGRFA, and therefore to suppress the nested scopes in the Treaty and MLS,

was put on the table by Switzerland at GB7. While this proposal has not been adopted by the GB, it shows that mentalities have evolved on this matter, and perhaps in a near future such harmonization of scope will occur.

Coupled to this issue is the question as to whom are the Treaty obligations applicable? All providers and recipients of PGRFA in all contracting parties’ territories? Do they extend to recipients in non-contracting parties, as the SMTA contains a viral clause of application imposing any further transfer of the material to occur using the SMTA? The geographical scope of the Treaty is an important question to tackle. It raises the difficult problem of porous boundaries of the whole system. As long as countries with major genebanks, such as China are outside the Treaty, it is relatively easy to bypass the MLS system by accessing identical PGRFA accessions outside the MLS (i.e. the economic concept of free­riding). Expanding the scope of the Treaty to all PGRFA and to all countries would be a way to circumvent the bypassing problem.

Article 11 enumerates five types of PGRFA which form the MLS basket of material: 1) PGRFA listed in Annex I, which are under the management and control of contracting parties and in the public domain (Article 11.2); 2) con­tributions from all other holders of PGRFA listed in Annex I, upon invitation by contracting parties (Article 11.2); 3) PGRFA included voluntarily by natural and legal persons within the jurisdiction of the contracting parties, who hold material listed in Annex I (Article 11.3); 4) PGRFA listed in Annex I and held in ex situ collections of the CGIAR (Articles 11.4 and 15.1a); and 5) PGRFA listed in Annex I and held in ex situ collections of other international institu­tions (Articles 11.4 and 15.5). Moreover, there is only one case in which the obligations under Article 11 can be limited, that is to say when the PGRFA is ‘under development’ (including material being developed by farmers). In this case, the material ‘shall be at the discretion of its developer, during the period of its developments’ (Article 12.3(e)). Yet, in practice, it is difficult to identify which material is effectively included in the MLS, and the boundaries of the MLS bas­ket of accessions seem to be rather blurred. The question of the coverage of the MLS has been one of the most contentious issues during the Treaty negotiations: what material is to be included in the MLS by contracting parties? And indeed, it is an important question as the access will be facilitated only to those specific PGRFA, and as the effectiveness of the benefit-sharing mechanism will partly depend on the material included in the system. The recent discussion about DSI and their inclusion or not in the MLS exemplifies this important question.

Rules and procedures related to the coverage of the MLS

This section reviews for what type of use the materials included in the MLS can be accessed. It also details the specific rules and procedures applicable for products under development.

Article 12.3(a) states that ‘access shall be provided solely for the purpose of utilization and conservation for research, breeding and training for food and agri­culture, provided that such purpose does not include chemical, pharmaceutical

The Treaty on Plant Genetic Resources 87 and/or other non-food/feed industrial uses’. This means that PGRFA that are used for another purpose, such as the production of biofuels, cosmetics or phar­maceuticals are not considered as PGRFA under the MLS (Treaty Secretariat, 2012a, 2012b: §§ 19-21). This distinction is important because the exchange mechanism and applicable law will differ when the subject matter is used for food/feed or for other purposes. Indeed, for the latter, the CBD and its access and benefit-sharing obligations under the Nagoya Protocol are applicable (Garforth and Frison, 2007: 4; Treaty Secretariat, 2012b : §§ 27-31). In fact, the same species or even the same variety can be both within and outside of the MLS, depending on the intended use. For example, this is the case for some yam (Dioscorea sp.) species which are in the MLS when intended to be used for food but are not included if they are intended for a pharmaceutical purpose, in mak­ing the contraceptive pill for example. The same applies for a maize variety that can be used for animal feed or for biofuel production.

Furthermore, the Treaty creates a special regime for PGRFA under develop­ment where the material under development is part of the MLS but is subject to certain discretionary powers of the developer as long as it is under development. This special regime will be applied for a limited period of time and could be assimilated to a sort of trade secret protection mechanism.²⁴ Indeed, the devel­oper’s discretionary powers include the authority not to transfer any informa­tion to the MLS Third Party Beneficiary, to restrict access to the material being developed (not to the original material) and to set special conditions (including financial) on the transfer of that material during the period of development. Upon commercialization of the final product on the open market, the normal MLS regime applies again, and the material sold shall be subject to Article 13.2(d)(ii) regarding benefit-sharing obligations.

Implementing the provisions on the scope of the Treaty

Implementation of the provisions relating to the scope and boundaries of the Treaty cross-cut with the implementation of the provisions on access to PGRFA under the MLS, addressed below in this chapter. Therefore, only brief informa­tion will be provided here.

Agreeing on a common understanding of what PGRFA are covered by the Treaty and by the MLS is important to implement Treaty obligation in a coher­ent and harmonized manner. In order to operationalize the ABS provisions of the MLS it has been necessary to identify and designate the accessions that are meant to be part of the MLS. During the implementation phase, states have had difficulties in doing so. Indeed, few information on the collections and acces­sions to be part of the MLS have been communicated to the Treaty Secretariat.²⁵

Today, following the proposal made by Switzerland at GB7, contracting parties are envisaging reopening the debate on the coverage of the MLS. However, the G-77 and the African groups are still reluctant to discuss this option before sig­nificant progress is made on other issues, such as the implementation of the ABS mechanism (and in particular the benefit-sharing aspects), or the promotion of

FRs. However, some stakeholders hope that enlarging the coverage of the MLS might contribute to increase the monetary returns to the Benefit-Sharing Fund. Furthermore, it is argued that it would simplify significantly the administrative burden related to the access procedures, as it would allow the use of one unique material transfer agreement.

Up till recently, the majority of holdings brought into the Multilateral System are those of the CGIAR Centres or other international organizations (e.g. the Tropical Agricultural Research and Higher Education Centre or the Interna­tional Coconut Genebank for Africa and the Indian Ocean). The experience of the CGIAR Centres with the implementation of the Treaty seem to be positive (IT/GB-3/09/Inf. 15; IT/GB-4/11/Inf. 4, point 14; and IT/GB-4/11/Inf. 5), as the Treaty considerably simplifies the task of the Centres in making PGRFA available and notably reduces the administrative costs involved. Even more so as the Governing Body, at its second meeting, recognized that the Centres should use the same SMTA for both Annex I and non-Annex I material.²⁶ However, some difficulties have arisen regarding the tracking obligation when transfer­ring PUDs. This question is being addressed by the Governing Body (Resolu­tion 1/2015: §§ 22-25) and will hopefully be resolved once the review process of the MLS and SMTA is over. Using the SMTA for non-Annex I materials (Article 15; GB-2/07/Report, §§ 66-68) is a means that de facto enlarges the scope of the MLS (Frison et al., 2010: 5-6). The 11 Centres holding such collections in trust signed agreements with the GB in 2006, placing the col­lections under the Treaty. The Second Session of the Governing Body in 2007 recognized that the CGIAR Centres should use the SMTA when distributing non-Annex I materials. All recipients of those materials from the Centres are receiving them on legal terms and conditions identical to those applying to materials in the multilateral system, and they are contractually bound, when passing them on (or new PGRFA incorporating those materials), to use the SMTA. This may represent a significant de facto expansion of the Treaty’s MLS. Some countries have also decided to use the SMTA when distributing non-Annex I PGRFA. Likewise, countries participating in the European Gene­bank Integrated System (AEGIS) have agreed to use the SMTA for distributing important PGRFA designated as European Accessions, whether they are listed in Annex I or not (AEGIS, 2009).

De facto enlargement of the scope of the MLS also occurs by transfers to recipients in non-contracting parties. On this matter, the Treaty is silent, but it appears there is nothing to prevent a provider in a Contracting Party to send materials to a recipient in a non-Contracting Party using the SMTA. Since the recipient in a non-Contracting Party would then be bound by the terms and conditions of the SMTA through the viral clause of the SMTA, he should use the SMTA for subsequent transfers of the same material and new PGRFA incor­porating the material received. This viral clause is similar to a

copyleft feature of open-access schemes, [which] endeavors to attach the sharing norm to the intellectual resource itself-not only to the contractual parties. The copyleft feature can lead to a particular provision or regulation applying to any user of the work or invention-almost equating the contract to a right against the world.²⁷

(emphasis in original, Dusollier, 2007: 1395; also see Van Overwalle, 2018: 95)

By doing so, the ‘reach’ of the MLS can de facto expand beyond the territories of contracting parties (Hope, 2008: 79), although this can serve as a disincentive for states to ratify the Treaty as they can access the material without having to con­tribute to the MLS with their own genetic resources (Halewood et al. 2013: 13).

In sum, today some people still consider that the list is too extensive (Lim, 2011), while others believe the MLS should apply to all PGRFA (van den Hurk, 2011). Nonetheless, more and more Treaty stakeholders believe that modifying and/or expanding Annex I will be necessary in the medium term, especially because very important crops, such as tomatoes, soybeans or peanuts are not included (Coradin and Sampaio, 2011; ²⁸ Cubero, 2011; Fernandez Diaz-Silveira, 2011; Fraleigh and Harvey, 2011; Mozafari, 2011; Visser and Borring, 2011) and because external fac­tors, such as climate changes, might impact on what crop is or has become crucial for food security Echoing the views of developing countries, some authors do not reject the idea of a modification of the list, potentially to all PGRFA, but do not support such a development before it is clear that the MLS functions efficiently, in particular with respect to its benefit-sharing provisions (Fernandez Diaz-Silveira, 2011; Egziabher et al., 2011; Lim, 2011). This analysis is even stronger since the passionate debate on DSI that took place during GB7.