The negotiations of the International Treaty on Plant Genetic Resources for Food and Agriculture were not alien to, but strongly influenced by the his­torical and geopolitical context in which they were developed (see Chapters 2 and 3 this book).1

Safrin summarizes some of the major issues at stake regarding genetic resources management at the time of the negotiation of the Treaty:

Some resources benefit from being shared [...].

(Safrin, 2004: 670)

In the 1970s and 1980s, when an utopian socialism was still believed to be pos­sible, the almost romantic concept of plant genetic resources, seen as ‘heritage of [hu]mankind’ to be made ‘available without restriction’, was defended with pas­sion by most developing countries and some developed countries. This idealistic vision was reflected in the 1983 International Undertaking on Plant Genetic Resources (IU). After the fall of the Berlin wall and the start of an era of the so-called ‘real politics’, neo-liberal economic theories prevailed. Consequently to the increasing privatization of genetic resources, the concept of seeds as ‘heri­tage of [hu]mankind’ to be made ‘available without restriction’ was replaced by those of ‘global concern’, ‘state’s sovereignty’ and ‘facilitated access’, as reflected in the Convention on Biological Diversity (CBD) and later in the Plant Treaty. The adoption of the CBD in 1992, and two years later of the TRIPS Agree­ment in the context of the WTO Uruguay Round, as binding international agreements, was a wake-up call for the agricultural sector.

These formal negotiations took place between 1994 and 2001. The FAO Commission on PGRFA met in three regular sessions and six extraordinary sessions. In order to speed up negotiations by reducing the number of active negotiators, the Commission appointed a regionally balanced contact group composed of 47 countries. Between 1999 and 2001, the contact group held six meetings to discuss controversial issues and to pave the road for the Commis­sion negotiations. The sixth extraordinary session of the Commission intended to conclude the negotiations, but delegates could not reach agreement on several points. These pending issues were resolved during the 121st session of the FAO Council in October 2001. In a euphoric atmosphere, the negotia­tions were completed during the thirty-first conference of FAO, on 3 Novem­ber 2001, with the adoption of the Plant Treaty by consensus with only two abstentions: Japan and the USA (Thirty-First Session of the Conference of FAO, C 2001/PV: 73; also see Charles, 2001c).

The Treaty³ adopted in 2001 entered into force on 29 June 2004, after it was ratified by more than 40 countries (Article 28.1). However, the following analysis will show that the Treaty has only really started to be operational around the years 2010—2011, once its main tools and mechanisms had been developed and adopted by the governing body (inter alia the SMTA, the Benefit-sharing Fund, the Compliance Committee, etc.). To date, 145 states are contracting par­ties.⁴ Seven countries are signatory but not yet party to the agreement.⁵ There remain 44 non-contracting parties including inter alia Bolivia, Botswana, China, Gambia, Israel, Mexico, Mozambique, New Zealand, the Russian Federation and South Africa.

By creating the Treaty and its MLS, contracting parties sought to strike an equitable balance between public and private interests in access to seeds but the Treaty tools and mechanisms do not necessarily fulfil this objective, and

The Treaty on Plant Genetic Resources 73 countries have difficulties in implementing the Treaty. As a result, I posit that a de facto imbalance of rights pertaining to seeds exists, which needs to be re-balanced to implement adequately the MLS and allow all stakeholders to reach the Treaty’s objectives. To verify this hypothesis, I asked myself how do the Treaty and its mechanisms function, and are there data and evidence to assess the efficiency of the Treaty implementation. To answer these questions, a legal interpretation of the Treaty clauses is carried out, inspired from the classical method of public international law for Treaty interpretation (Cor- ten and Klein, 2011).⁶ This interpretative exercise is cross-checked with data and statistics on the implementation of the Treaty by its contracting parties (data come partly from the Treaty Secretariat website). The aim is to draw a precise picture of the limits in the Treaty text and in its implementation pro­cess by highlighting eight main topics, which are crucial for understanding and implementing the Treaty. The results of this in-depth legal analysis are to be published in extenso in 2020.⁷ This chapter summarizes these results without entering into too many details of the technical legal interpretation and research methods. It presents the essence of the legal research under eight thematic sections: sustainable agriculture and food security; scope of the Treaty and its MLS; Farmers’ Rights; access to seeds; benefit-sharing obliga­tions and the Benefit-sharing Fund; the Third Party Beneficiary and other related legal procedures (monitoring, sanctions, conflict resolution); informa­tion and knowledge; and finally governance issues related to stakeholders’ participation.