The International Undertaking on Plant Genetic Resources: a failed attempt to keep resources in the public domain

In the 1980s and 1990s, concern arose that genetic diversity from developing countries was being used for profit in the North with no return to the coun­tries of origin (Dutfield, 2004: 52-59).

The political discussion and negotiating process began in the FAO Confer­ence³¹ in November 1979,³² when the Spanish delegation, later supported by numerous countries, proposed the development of an international agreement on PGRFA and the establishment of a germplasm bank under the jurisdic­tion of the United Nations. During the 1981 FAO Conference, this proposal became a draft resolution³³ written by Mexico and presented by the Latin American and Caribbean Group (GRULAC)³⁴ region on behalf of the G-77.³⁵ As a result, the next FAO Conference (November 1983)³⁶ approved the first intergovernmental agreement on this subject - with the reservation of eight countries.³⁷ The same conference established an intergovernmental body - the FAO Commission on Plant Genetic Resources (CPGR)³⁸ (today the Com­mission on Genetic Resources for Food and Agriculture (CGRFA), which includes 167 member countries and the European Community)³⁹ to monitor its implementation (Mekouar, 2002: 2).

The Undertaking is a non-binding agreement based on the principle that plant genetic resources are a heritage of humankind that should be available without restriction (Fowler, 1994: 159-167).

Recognizing that: (a) plant genetic resources are a heritage of mankind to be preserved and to be freely available for use, for the benefit of present and future generations.

Article 1 (Objective) of the Undertaking specifies that:

1. The objective of this Undertaking is to ensure that plant genetic resources of economic and/or social interest, particularly for agriculture, will be explored, preserved, evaluated and made available for plant breeding and scientific purposes. This Undertaking is based on the universally accepted principle that plant genetic resources are a heritage of mankind and conse­quently should be available without restriction.

It was argued that in this way, unrestricted access to PGRFA would continue to be ensured (Tsioumani, 2005: 121). However, developed countries had pre­cisely used that principle to promote their free access to resources in gene-rich countries (Aoki, 2008: 71). For their parts, developing countries believed that recognizing the heritage of humankind principle in an international agreement would safeguard their interests (Tilman, 2016: 273-297). Developing countries thought that this principle would allow them to access the improved varieties developed using PGRFA originating from the South but improved in laborato­ries situated in developed countries where financial and technical means were available (Bordwin, 1985 : 1069). The IU recognized plant genetic resources to be the heritage of humankind,⁴⁰ but this principle was subject to the scope of application of the IU, which had a very broad definition of PGRFA (Aoki, 2008: 71). This meant that PGRFA including land races, wild and weedy species but also breeders’ lines, commercial varieties and other products of biotechnolo­gies should be available to everybody.⁴¹ Unsurprisingly, a number of developed countries did not support the IU as they felt that this clause ran counter to their economic interests.⁴² This particular issue explains why the IU was approved with eight reservations.

this position soon leads to the argument that common heritage and intel­lectual property are incompatible [and that] the intellectual and political divide between these views overshadows discussions of the future of crop resources. Despite the recognition of the importance of international public goods, the subtleties that characterize public goods and the public domain were lost in the political rhetoric of the international debate over plant resources. The contest between these two views takes on political signifi­cance because of the increased value of genetic resources, the need to secure a firm financial base to support conservation, and the need to provide for continued access and movement of genetic resources between countries.

(Brush, 2004: 232)

Stoll further argues that it

cannot be overlooked that the different claims made in this case clearly rep­resent the conflicting interests involved. The recognition of plant breeders’ rights and the proprietary character of breeding lines were of comfort to the breeding industry - which in those days was mainly situated in the North. The so-called ‘farmers’ rights’ and the concept of a sovereign right on [genetic resources] can be roughly considered a counterclaim of the South. In sum, the example amply shows that plant [genetic resources], which can be considered a public good, have become the subject of claims of different stakeholders. This is likely to cause conflicts in demand, intensive negotia­tion and result in inefficiencies.

(Stoll, 2009: 7)

In an effort to bring the reluctant developed countries on board and resolve this conflict, three Agreed Interpretations of the IU were negotiated in the FAO Commission between 1983 and 1991.⁴³ International non-governmental orga­nizations (INGOs) played an essential role in this part of the process (Mooney, 2011). One particularly important initiative was the Keystone International Dia­logue Series on Plant Genetic Resources (Frison et al., 2011a: 8).

The agreed interpretations thus largely led to the abandonment of the com­mon heritage approach (Esquinas-Alcazar and Hilmi, 2008),⁵⁰ and set the rationale for compensating traditional farmers as conservationists and providers of PGRFA (Fowler, 1994: 190-192). Brush (2004: 233) regrets that ‘conceptual­izing crop genetic resources as common heritage leaned towards rules derived for rivalry goods rather than towards the rule regulating public goods in the public domain’. He argues that common heritage intrinsically includes the concept of ‘property over any and all biological material’. He concludes that ‘the motifs of tangible property and theft dominated this discourse and thwarted consensus about protection of the public domain while promoting social util­ity’.

History of the seed regulatory setting 35 reinforced the ‘hyperownership’ logic. Furthering this trend, in parallel to these developments, countries were negotiating the Convention on Biological Diver­sity. In response, in 1993, the FAO Conference adopted Resolution 7/93 at its 27th Session, requesting the FAO Director-General to provide a forum for nego­tiations among governments, for (a) the Revision of the IU, in harmony with the CBD; (b) consideration of the issue of access on mutually agreed terms to plant genetic resources, including ex situ collections not addressed by the Convention; and (c) the issue of the realization of Farmers’ Rights.

Besides, within FAO related fora, FAO Member States were building a ‘Global System for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture’ (the Global System) through the adop­tion of an International Code of Conduct for Plant Germplasm Collecting and Transfer, Genebank Standards, a Global Plan of Action on Plant Genetic Resources for Food and Agriculture (GPA)⁵² and the first report on the State of the World’s Plant Genetic Resources for Food and Agriculture (Prison et al., 2011b: 281—291). By implementing these tools, the Global System had the objective to

ensure the safe conservation and promote the availability and sustainable utilization of plant genetic resources, for present and future generations, by providing a flexible framework for sharing the benefits and burdens. The System covers both the conservation of plant genetic resources (ex situ and in situ, including on-farm) and their sustainable utilization.

(CGRFA, 1997: § 3)

For their part, the CGIAR (also called the CG Centres) noted a serious decrease in access to varieties for their gene banks, thereby justifying the need for a clearer legal access system at the international level. Moore and Frison explain that

[t]he need to find a more appropriate system of access to PGRFA [...] coupled with a lack of clarity over the legal status of the ex situ collections acquired before the entry into force of the CBD, led directly to the conclu­sion of the In Trust agreements between the CG Centres and FAO.

(Moore and Frison, 2011: 154)

Twelve centres of the CGIAR, and subsequently other institutions, signed in 1994 agreements with FAO to place most of their collections (some 500,000 accessions) in the realm of the IU under the auspices of FAO. Through these agreements, the Centres agreed to hold the designated germplasm ‘in trust for the benefit of the international community’ and could neither claim legal own­ership over the material nor seek IPRs (Gotor and Caracciolo, 2009). According to Brahy (2008: 225), ‘[t]he heart of the Agreement is the safeguarding of shared access and reciprocity social norms. The Agreement insists on the continuity with past policies and social norms’. Indeed, The Centres also had to make samples of these resources available to users for the purpose of scientific research,

plant breeding and genetic resources conservation without restriction.⁵³ This was carried out through the use of a Standard Material Transfer Agreement (SMTA), identical for all the CGIAR material. Brahy (ibid: 227) notes that ‘[b]eyond its content, this agreement is an interesting attempt to “formalize social norms”, i.e. insert their provision into contracts’. It should be noted that the text of this SMTA was later considered and amended by the Governing Body of the Treaty as the basis for the current SMTA (Moore and Frison, 2011: 157). The agree­ments provided an interim solution, until the revision of the IU was completed.

Box 2.4 A failed attempt to keep resources in the public domain with the IU on Plant Genetic Resources

• 1979: Beginning of FAO policy discussions on PGRFA

• 1983: Creation of the Commission on Plant Genetic Resources and adoption of the IU on plant genetic resources

• 1989 and 1991: International Keystone Dialogue Series on PGRFA

• 1993: 27th session FAO Conference adoption of Resolution 7/93 to open negotiation for the Plant Treaty

• 1994: 12 CG Centres sign the ‘In Trust Agreements’ with FAO

• 1995: Broadening of the Commission on Plant Genetic Resources with a mandate to cover all components of biodiversity for food and agriculture

• 1996: Publication of the first report on the State of the World’s PGRFA