Treaty governance and stakeholders’ participation

Like for any international convention, the contracting parties of the Plant Treaty have established its administrative bodies (Treaty Articles 19-20), which care for the administrative functioning of the instrument.

Administrative bodies governing the Treaty

Two administrative bodies are responsible for the institutional functioning of the Treaty: the Governing Body and the secretary. As these institutional provisions are common in international environmental treaties, comments will remain concise.

The Governing Body

Article 19 establishes the highest organ of the Treaty, the Governing Body, which is composed of representatives of all its contracting parties (Article 19.1). This Article defines the role, procedures, rules, etc., which contracting parties have to apply for the Treaty’s main organ to be effective. The Governing Body’s function is ‘to promote full implementation of this Treaty, keeping in view its objectives’ (Article 19.3). Sessions of the Governing Body must be regular, at least one meeting every two years (Article 19.9) and preferably held to back with CGRFA meetings. Special sessions may be held, if necessary and agreed upon by contracting parties (Article 19.10). Decisions are taken by consensus (unless decided otherwise) (Article 19.2). However, consensus is compulsory for the adoption of amendments to the Treaty (Article 23) or to its Annexes (Article 24). Consensus implies that every state may potentially exercise a veto over Governing Body decisions. So far, even if a contracting party does not agree with the totality of every decision content, a veto has never been exercised explicitly.

Observers

Observers may attend sessions of the Governing Body (Article 19.5) as long as they are ‘qualified in fields relating to conservation and sustainable use of [PGRFA]’. Candidate entities must inform the secretary, which transmits the request to the Governing Body. The Governing Body may deny access to the observer if one third of the contracting parties object to its participation. This procedure seems fairly straightforward and difficulties for candidates to acquire the status of observer within the Governing Body forum have not been reported.⁵³ Usual observers are NGOs, including farmers’ organizations, Uni­versities⁵⁴ or other research institutions. CGIAR centres which have signed an agreement with the Governing Body are automatically accepted as observers without other formalities. Representatives of the United Nations and specialized agencies may also participate in Governing Body sessions as observers (Article 19.5 & Rules of Procedure, VII).⁵⁵ Finally, states that are not contracting parties (signatory members or non-parties) may also attend Governing Body sessions as observers (ibid).

The functions of the Governing Body

Article 19.3 specifies non-exhaustively the functions of the Governing Body, which relate to providing policy directions (19.3(a)), adopt plans and pro­grammes (b), adopt a funding strategy to be periodically reviewed (c), adopt the Treaty budget (d), consider and eventually establish subsidiary bodies when necessary (e), establish a Trust Account (f), cooperate with other relevant inter­national organizations and treaties (g), envisage amendments to the Treaty (h) and its annexes (i) if necessary, encourage voluntary contributions (j), perform any other functions necessary for the fulfilment of the Treaty’s objectives (k), take note of CBD-COP and other relevant international organizations’ decisions (l) and inform the CBD-COP and other relevant international organizations of relevant Treaty implementation issues (m), and finally approve the CGIAR centres’ term of agreement relationship (n) referred in Treaty Article 15.

Rules of Procedures

Article 19.7 states that the Governing Body shall adopt and amend, as required, its own rules of procedures, which were adopted at GB1 (IT/GB-1/06/Report; § 9 and Appendix D). Rule 1 clarifies that the ‘rules of procedure shall apply to all sessions of the Governing Body and the activities of its Secretary. They shall also apply, mutatis mutandis, to subsidiary bodies of the Governing Body unless the Governing Body should decide otherwise, in accordance with Rule 9.2’. Basically the Rules of Procedures builds on Article 19 provisions and details more specific functioning rules to allow for the Governing Body meetings to be effective. Such specific rules are for example how to introduce an item in

The Treaty on Plant Genetic Resources 125 the agenda of the following Governing Body, the role of the secretary and its secretariat in compiling and rendering available all necessary documents and information for the functioning of every Treaty meeting, etc.

The Bureau

The Bureau (Article 19.11) is the administrative entity without which Gov­erning Body sessions would not function. The bureau is constituted by the chairperson of the Governing Body, six vice-chairpersons (one per FAO region, except from the region of the Chairperson) and a rapporteur. They are elected by the Governing Body at the beginning of every Governing Body meeting and they serve during the whole biennium. The rules of procedures of the Treaty detail the role of the bureau in Rule II. The bureau facilitates the operation of Governing Body sessions and all inter-sessional meetings. The bureau meets regularly in between sessions and during Governing Body meetings. As the chairperson of the bureau is also the person chairing Governing Body meetings, he/she functions as the link between the formal negotiation activities and the administrative endeavours necessary to support the operation of official meet­ings.

The Secretary

The secretary (Article 20) of the Governing Body is appointed by the director­general of FAO with the approval of the Governing Body. He/she may be assisted by the required staff. Its role is to provide administrative support for Governing Body sessions, assist the Governing Body in carrying its functions, and report on its activities (Article 20.2). He/she has the duty to communicate to all contracting parties and to FAO director-general all decisions of the Gov­erning Body and information received from contracting parties (Article 20.3). He/she shall do so in the six official languages of the UN (Article 20.4). Finally, he/she shall cooperate with other organizations and treaty bodies, in particular the Secretariat of the CBD (Article 20.5).

Following FAO Resolution 3/2001, the Secretariat of the CGRFA has acted, since November 2001, as the Secretariat of the Interim Committee for the Treaty, with the Secretary of the Commission (Jose (Pepe) Esquinas-Alcazar) acting as the secretary of the Interim Committee, until a new secretary would be appointed.

Implementing governance procedures

Treaty governance is not an easy item to assess, as the Treaty follows classical rules of international law regarding laws of treaties, but also many informal practices that can only be understood by participating to the process from the inside (and which have no legal value, but strong political impact). In the following sub-section, brief information is provided regarding the function­ing of the Governing Body, the Secretary’s mandate, and most of all on the attempts to include stakeholders in different ways during the review of the Treaty process.

The Governing Body meetings

Since the First Governing Body in 2006, contracting parties have been very active in crafting the legal and technical apparatus to apply Treaty obligations. This dynamism transpires from the many meetings that took place. The Govern­ing Body meetings allow the 145 contracting parties to identify and discuss their needs and to negotiate and adopt the resulting instruments and mechanisms.

Renewal of the Secretary’s mandate

In 2010, the FAO secretariat followed an ad hoc procedure of consultation of the bureau of the Treaty, as a result of which the Director-General of FAO extended the appointment of the executive secretary for a term of four years. In 2014, as the second term of office of the secretary was drawing to a close, the FAO secretariat proposed an interim extension of the appointment of the secretary, pending review of the matter by the Governing Body and approval of a pro­cedure to that effect. At the Sixth Session of the Governing Body, a document was presented to establish such a procedure (IT/GB-6/15/26.). With Resolution 12/2015, contracting parties decided to set the matter on the provisional agenda of the Seventh Session of the Governing Body and to extend the appointment of the current secretary until the designation of a new secretary, following approval by the Governing Body at its Seventh Session in 2017. At GB7, contracting parties attempted to remedy this procedural gap by considering the document ‘Procedures for the Appointment and Renewal of the secretary of the Govern­ing Body of the International Treaty’ (36 IT/GB-7/17/30). However, the GB ‘failed to reach a consensus on the proposed procedures due to concerns raised regarding the shared responsibility of the FAO Secretariat and the Governing Body on the Procedures for the Appointment and Renewal of the secretary of the Governing Body of the International Treaty. Therefore, it decided to revisit this issue at its Eighth Session and requested the FAO Secretariat to reconsider, in close consultation with the Bureau, the proposal for the selection and appoint­ment of the secretary of the Governing Body of the International Treaty to more appropriately reflect the concerns raised at this Seventh Session’ (IT/GB-7/17/ Report: § 47). Notwithstanding this delay, the GB appointed Dr Kent Nnadozie, who has been exercising the function ad interim for more than a year already, as secretary of the International Treaty for a period of two years, consistent with the decision of the Council ofFAO at its 155th Session (IT/GB-7/17/Report: § 45).

Consultation with stakeholders, in particular the seed industry, during the review process of the MLS and funding strategy between 2012 and 2015

It is the first time that an official sub-organ of the Treaty conducts an official consultation with a non-contracting parties stakeholders’ group outside the GB, other than their usual participation as observers (or within country’s delegation) to Treaty meetings. Negotiators realized that if they wanted the seed industry to use the SMTA, they would need a good understanding of its expectations. It should therefore be applauded that such consultation of members from the seed industry took place in 2012-2013. The review (Moeller, 2014) seems to have been well-received by the private sector, whose interviewees have frequently expressed support to the Treaty. The results of this review are available on the Treaty website and have been integrated in the working documents of the WG-MLS.

The myth of the financial solution by the seed industry

To this positive note, some remarks will be added. First, this consultation is of primary importance, as one of the issues that render the Treaty so difficult to implement is the fact that stakeholders other than contracting parties are not sufficiently integrated in the Treaty institutional function­ing (as part of the governance scheme). However, I believe it is a myth to imagine that obtaining the participation of the seed industry in the MLS will solve major financial issues in the Treaty. It is unlikely that the private sector will voluntarily pay for the overall cost of conservation and sustainable use activities worldwide. This is not to say that they should not contribute. On the contrary, they should pay their fair share. However, unless govern­ments manage to impose the system to the ‘Big Five’ who have been most reluctant to access material from the MLS,⁵⁷ it will not work. Indeed, while these companies have the financial means to pay a significant, fair share, they also can perfectly live without accessing material from the MLS for the near future, relying on their significant private collections. The sole participation of the small-to-medium-size private sector industry would not be sufficient to create a stable, long-term secured and financially sustainable funding source for the Treaty’s Funding Strategy. Efforts in convincing the Big Five to participate in the system should be enhanced. Dialogue with the CEOs could be an opportunity to better share views and identify common ground for participation. However, up to now, such dialogue has not been possible. A solution might lay in informal consultation with these CEOs. The Informal Multi-stakeholder Dialogue initiative (see below)⁵⁸ that took place in 2014 could have provided for such open and frank debate and could have fertilized the soil for finding an innovative agreement (out of the box). Unfortunately, the initiative has not been pursued. It is therefore crucial that efforts towards finding other means of obtaining financial support are maintained and come to a positive outcome.

The absence of other stakeholder groups’ consultations

A second remark is made regarding the fact that other stakeholder groups outside contracting parties have not been consulted. While it is easy to understand that there are no specific stakeholder groups, other than the seed industry, whose participation in the MLS would potentially bring significant financial benefits back to the Treaty, it is nonetheless a pity that the voice of these groups were not heard on the same basis. Indeed, other PGRFA users might have interesting opinions and concrete proposals to make in ways of enhancing the functioning of the MLS, regarding both monetary and non­monetary aspects. Farmers’ Consultations have taken place (see above same chapter, Farmers Rights’ section), but not at the same time, and not with the same purpose.

‘Silent observers’ at the WG-MLS

Third, an interesting note is made regarding the composition of the WG-MLS. Besides the usual experts and negotiators representing the FAO Regions in the Treaty Governing Body,⁵⁹ the secretariat staff and two official observers rep­resenting main Treaty stakeholder groups (civil society organizations, the seed industry, farmers’ organizations, and the CGIAR centres; Resolution 2/2013: point 23), additional ‘silent observers’ were admitted to the meetings (IT/ OWG-EFMLS-1/14/Report). Their participation could be considered as an indirect additional way of consulting stakeholder groups, along the line of the WG-MLS’ mandate. These silent observers included people from NGOs (such as the South Centre, the Third World Network or the Centre for Research, Information, Action in Africa), the Seed Industry (Syngenta International AG or the European Seed Association), as well as representatives from FAO and other international bodies (CBD, CGRFA) (IT/OWG-EFMLS-1/14/Report; IT/OWG-EFMLS-2/14/Report; IT/OWG-EFMLS-3/15/Report; IT/OWG- EFMLS-4/15/Report). This shows the clear need and will of contracting parties to collaborate with the direct users/stakeholders of the MLS in finding ways to enhance its functioning. This sounds logical, as these are the real people who actually use the SMTA and MLS material. However, from an international law point of view, such an initiative is not the usual practice, as official representa­tives of governments are the only negotiators with recognized power of deci­sion, engaging the state they represent. The fact that these technical meetings have been opened to more stakeholders confirms the realization that decisions need to take into account and include the voice of the stakeholders on which the decisions will apply. This note might sound simplistic and quite logical, but from the viewpoint of negotiation practices within the Treaty forum, it may be considered as a ‘little revolution’. This is probably why negotiators, very cautiously, specified in the first meeting report that ‘this decision would set no precedents for other inter-sessional bodies of the Governing Body’ (IT/OWG- EFMLS-1/14/Report). This practice should be encouraged and widened. Yet, it should not be interpreted in an overly optimistic manner. ‘Normal’ observers may only talk when they are invited to do so (contrary to contracting parties who may request the floor at any time), and as their title says, the fact that these additional observers are ‘silent observers’ certainly limits their real involvement in the (formal) discussions.

The multi-stakeholder dialogue initiative: a missed opportunity

Finally, a last comment is made regarding the ‘Informal Multi-stakeholder Dialogue’ initiative that took place in 2013-2014. At the second High-level Roundtable on the International Treaty on Plant Genetic Resources for Food and Agriculture (United Nations Conference on Sustainable Development Rio de Janeiro, Brazil, 21 June 2012), a ‘Rio Six-Point Action Plan for the International Treaty on Plant Genetic Resources for Food and Agriculture’ (the ‘Rio Six-Point Action Plan’) was adopted by consensus. The third point of the Rio Six-Point Action Plan had the objective to ‘facilitate a new Keystone-type dialogue, to complete the governance of all plant genetic resources for food and agriculture under the Treaty’. This was to take the form of an informal multi-stakeholder dialogue (the Informal Dialogue), as adopted by Resolution 2/2013, where contracting parties welcomed ‘the organization of an informal multi-stakeholder dialogue to enhance the functioning of the Multilateral System and increase contributions to the Benefit-sharing Fund, which may provide input to the Ad Hoc Working Group’ (Resolution 2/2013, point 7). Similar informal consul­tation had taken place between 1994 and 2001 under the Keystone Dialogue sessions, and between 1999 and 2002 with the follow-up Crucible Group, with the same facilitators Michael Lesnig and Timothy Mealey (see below Chapter 5).

Bioversity International and the Meridian Institute jointly convened the Informal Dialogue which took place in September 2014 in the form of a two- day workshop (IT/OWG-EFMLS-2/14/Inf.4.1).⁶⁰ The rationale for organizing such dialogue was mainly to allow all stakeholders to talk to each other and express their views and perspectives more freely, applying Chatham House rules, in parallel to the formal negotiating process. Indeed, the formal process does not necessarily provide space for investigating options and solutions outside the limited scopes of official positions. Allowing representatives of a variety of stakeholder groups⁶¹ involved in the Treaty to compare their perspectives on the state of implementation of the Treaty and documenting these diverse perspec­tives constitutes an important contribution to the formal negotiating process, which has fed the second meeting of the WG-MLS.

However, the Informal Dialogue was not pursued further in parallel to the work of the WG-MLS. The information document summarizing the reflec­tions expressed during the two-day workshop contains important aspects, which would have benefited from further explorations by the same participants in later gatherings, until the overall review of the MLS and Funding Strategy of the Treaty are completed. Such informal dialogue constitutes a good place to tackle highly technical issues (and take these issues far from the political sphere for a while), by those very persons who deal with these aspects in their everyday work (contrary to negotiators in official Governing Body meetings who are gener­ally representatives of ministries and not direct users of PGRFA). Such open, de-politicized dialogue enables the development of ideas that might not persist if they were to be first introduced in the formal setting (whether at an Ad Hoc Working Group or Governing Body meeting). It seems that this initiative, which has been pushed by some stakeholders to create the space for ‘out of the box’ thinking, has been hesitantly adopted by the Governing Body through Resolu­tion 2/2013 and has subsequently been given very limited space and scope, in order, perhaps not to override the official formal negotiations of the Ad Hoc Working Group. It is a pity that the complementary role of the initiative to the formal negotiations has not been better understood and that more resources and space have not been devoted to this Informal Dialogue for it to provide

The Treaty on Plant Genetic Resources 131 significant and useful inputs to the formal process. This is especially true taking into account the success in unlocking difficult negotiations between ‘opponent’ stakeholders that had occurred thanks to such informal process at the time of the Keystone Dialogues.

In this section, information on the rules and procedures for the governance of the Treaty showed that there is little space for other actors than states to gov­ern the PGRFA issues at stake. However, History has shown with the Crucible Group and Keystone Dialogues the utility of involving all other stakeholders outside of formal negotiation processes in discussing problems and imagining solutions that would contribute to collectively face major future challenges. Moreover, one may wonder how come farmers’ expertise, needs and solutions are not officially included in the governance system of the Treaty, when they are the ones dealing with seeds in their everyday practice to feed the world.