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TWN Info Service on Biodiversity and Traditional Knowledge (May13/01)
20 May 2013
Third World Network
 

Dear friends and colleagues, Access and benefit sharing related to genetic resources for food and agriculture is rising in importance at the United Nations Food and Agriculture Organization (FAO).

The FAO Commission on Genetic Resources for Food and Agriculture (CGRFA) met on 15-19 April 2013 to consider activities related to access and benefit sharing (ABS) and, in parallel, possible changes to the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).

We are pleased to share with you a report of the meeting by Edward Hammond, who attended the meeting on behalf of Third World Network. Hammond also provides some  preliminary thoughts on the linkages with the Nagoya Protocol on ABS that was concluded under the Convention on Biological Diversity (CBD) in December 2010, that is under ratification for entry into force.

The April discussions in the CGRFA made clear that a number of countries are thinking about the future of the ITPGRFA, and that some favor changes to it, including the elaborate process of amendments.  Motivations for such changes include industry’s demand for a single ABS regime for crop plants, and governments’ concern that the Treaty lacks financial viability.

Hammond states that whether such efforts would generate positive results for developing countries, however, is an unanswered question, and many (but not all) developing countries that oppose transfer of responsibilities to the Treaty are obviously skeptical. This is an understandable position given the puny benefits thus far directed to small and diverse farmers in developing countries through the Treaty’s benefit sharing mechanism, and the reportedly negligible income generated from the Standard Material Transfer Agreement (SMTA) used by the Treaty’s multilateral system.

Other skeptics include the United States, which is not a party to the Treaty and would prefer not to see the center of gravity for ABS-related activity in crops to drift toward the ITPGRFA Governing Body, where its influence is more limited than in the Commission.

In addition, many developing countries are concerned that modifications to the Treaty might come at the expense of the Nagoya Protocol, although a smaller number of others, notably Brazil, appear to be interested in exploring the idea.

Hammond observes that if any process is begun in the CGRFA  to develop ABS rules or recommendations, or a process in the Treaty to change its multilateral system, or both, such work will need to be consistent with the Nagoya Protocol, in particular its Article 4, which states that other specialized access and benefit sharing agreements and “international instruments” may be developed, provided that they are supportive of and do not run counter to the objectives of the Protocol and the [CBD]. Such an instrument may replace the Nagoya Protocol, only for the specific genetic resources it covers, only when it “is consistent with, and does not run counter to the objectives of the Convention and this Protocol.”

Hammond also cautions developing countries to carefully consider whether  non-binding arrangements such as guidelines or codes of conduct as proposed by some developed countries would be beneficial, particularly in view of the fact that optional benefit sharing in agriculture under the ITPGRFA has proven ineffectual in delivering benefits to developing country small farmers, who conserve and develop key diversity of agricultural genetic resources.

Since there was no consensus, the April meeting has deferred concrete action on ABS for genetic resources for food and agriculture until at least early 2015.  Meanwhile a dialogue has been initiated to bring together selected participants from various sectors and interest groups, led by Bioversity International (a centre of the CGIAR). The third high level round table of the ITPGRFA is also scheduled for July 2013 in Indonesia. At the UN Conference on Sustainable Development (Rio+20) conference in June 2012, the second high level round table was sponsored by Italy, Norway, and Brazil.  Represented at the round table were those Treaty members that choose to attend and not the whole membership of the Treaty.  Although the round table does not have a formal function in Treaty decisions, it did nevertheless adopt an “Action Plan” that the Treaty Secretariat is working to implement.

With best wishes,
Third World Network


What Future for Access and Benefit Sharing for Agricultural Genetic Resources?
By Edward Hammond (
eh@pricklyresearch.com)

FAO Commission considers ABS-related activity and, in parallel, FAO members weigh changes to the International Treaty on Plant Genetic Resources for Food and Agriculture

The UN Food and Agriculture Organization Commission on Genetic Resources for Food and Agriculture (CGRFA) has deferred concrete action on access and benefit sharing (ABS) for genetic resources for food and agriculture until at least early 2015.

Commission members disagree on both the need for and specifics of approaches that FAO should take on ABS for crop plants, animal, aquatic, forest, and other genetic resources for food and agriculture, and sorting out these difference may take some time.

Delegates at the 15-19 April 2013 meeting at FAO headquarters in Rome uneasily settled on a hybrid between Europe’s preference for a unified approach across all kinds of ABS for food and agriculture versus individually discussing ABS for each of the different types of genetic resources under FAO’s remit, a proposal mostly favored by other North countries.

Many developing countries are wary of both ideas and are concerned that FAO could be used by North countries and business interests to impede implementation of the Nagoya Protocol to the Convention on Biological Diversity (CBD), which is gathering ratifications and pending entry into force. 

No new meetings of the FAO ad hoc committee on ABS, which met once last year, were planned.

Adding complexity to the discussions as they relate to crop plants are disagreements over the roles of the CGRFA and the Governing Body of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). This revolves around potential transfer of responsibilities from the Commission to the Treaty, including which should address ABS for crop plants that are outside of the Treaty’s multilateral system.  Commission members took no major action but agreed to revisit the issue at its next meeting.

Possible reassignment of responsibilities from the CGRFA to ITPGRFA, in turn, has bearing on open questions about the future of the Treaty, particularly its benefit sharing mechanism for small and diverse farmers, which is widely regarded as having fallen short. These questions too are being actively discussed on the sidelines, as governments prepare for the next Treaty meeting in September.

Notwithstanding criticism of the Treaty’s weak benefit sharing system, there was open talk in the corridors and at side-events in April on the possibility of expanding the Treaty’s Annex 1, or even amending the Treaty to modify its beleaguered benefit sharing system.

Thus, the seemingly bureaucratic question of which branch of FAO takes responsibility for non-Annex 1 crop plants may ultimately have implications for ABS for all crops.

If and how to address ABS for the Commission’s subsectors

The CBD’s Nagoya Protocol applies to all genetic resources, including for food and agriculture, with the sole exception of those genetic resources for which a specialized regime exists.  The only such system at present is the multilateral system of the ITPGRFA, which applies to seeds of the crops listed in the Treaty’s Annex 1.

Thus, upon its entry into force the Protocol applies to all the genetic resources addressed by the Commission, with the exception of those in the ITPGRFA’s multilateral system.

(Pending the entry into force of the Nagoya Protocol, the access and benefit sharing provisions of the CBD applies to all CBD Parties and these consist of almost all UN Member States with the notable exception of the United States.)

Commission members have agreed that it is “premature” to attempt negotiation of new specialized ABS regimes in food and agriculture. Although perspectives don’t perfectly align on North-South lines, many North countries favor the development of guidelines, best practices, and other “soft” measures on ABS in the Commission. Some seemingly favor, at least in the long run, the possible development of binding measures.  (They clearly disagree, however, on how to do this.)

South countries are generally less enthusiastic about work on soft measures at the Commission, and favor limiting activity to information gathering and similar activities.  Many among them, Africa being most vocal, emphasize the importance of the Nagoya Protocol on ABS for the Commission’s subsectors, prompting countries such as Canada to reply by arguing that the “distinctive characteristics” of genetic resources for food and agriculture require different treatment than other genetic resources in national laws to implement the Protocol.

(This treatment, in Canada’s view, emphasizes the pre-Nagoya status quo, which in turn, reinforces developing country suspicions that Canada and its allies are seeking to impede the Protocol through ABS discussions at FAO.)

The Commission’s consideration of ABS began by considering two options for future work.  The first was to continue an Ad Hoc Committee on ABS, which met for the first time in Svalbard, Norway, in 2012. The second was to put the Ad Hoc Committee on a more formal status as a Technical Working Group of the Commission. The latter proposal was linked to Europe’s ambition for an approach to ABS spanning across the Commission’s subsectors. (See: TWN Info Service on Biodiversity and TK: “Europe wants genetic resources out of mandatory benefit sharing”, 19 September 2012.)

Intervening first, the UNITED STATES however immediately proposed a third option, which was to consider ABS separately in each of the Commission’s sub-sectoral Working Groups. The US said that the Working Groups could “identify commonly accepted practices,” and “identify stakeholders and provide this list to the Commission.”

In other words, the US wanted to spread out the ABS discussion to many different meetings and committees, and avoid a unified approach or any quick move towards guidelines or similar measures.

NAMIBIA, speaking for Africa, emphasized the importance of the Nagoya Protocol and unenthusiastically endorsed continuance of the Ad Hoc Committee. It proposed, however, to reshape the Committee’s work into “one with a stronger element of national ownership.” In other words, Africa was willing to continue discussing ABS on an ad hoc basis, but wanted to steer the committee away from Europe’s approach.  On the US proposal, Namibia said it needed to consult within the region, but it expressed hesitancy, saying the Commission should “not split up ABS discussion into splinters all over the place, this will be to all of our detriment”.

The COOK ISLANDS, speaking for the Southwest Pacific, said it supported the US proposal.

MONGOLIA, speaking for Asia, said it preferred continuing the Ad Hoc Committee.

CUBA, on behalf of GRULAC said it too preferred continuing the Ad Hoc Committee. 

BRAZIL followed with a more nuanced intervention, in which it alluded to issues about the debate surrounding transfer of responsibilities of the Commission to the ITPGRFA Governing Body.  Brazil said that it supported GRULAC, and it also recalled that the Nagoya Protocol allowed for negotiation of specialized instruments.  Brazil said that the Commission “can” continue to discuss ABS for genetic resources for food and agriculture.

THE NETHERLANDS, speaking for the European Regional Group, said that ABS guidelines should be developed by the Commission, and that the Ad Hoc Committee should be converted into an Expert Working Group.  Europe emphasized the need for work to proceed quickly because of the impending entry into force of the Nagoya Protocol. Europe wanted the Commission to develop a “matrix of options” for work on ABS in food and agriculture, and for the matrix to be shared with the Convention on Biological Diversity.

CANADA supported the US proposal and emphasized the need to “appropriately accommodate” the Commission’s subsectors in work on ABS (which, in Canada’s view, mainly means protecting them from changes stemming from the Nagoya Protocol). Like Brazil, Canada also began raising issues about division of work between the Commission and ITPGRFA.  Canada strongly favored any work on ABS for plants to take place in the Treaty, and not at the Commission.

JAPAN urged that countries “take into account the distinctive features” of genetic resources for food and agriculture in implementing the Nagoya Protocol.

The Secretariat of the ITPGRFA intervened to inform of its relevant work and also raised the issue of division of responsibilities between it and the Commission.  The ITPGRFA said its scope included all plant genetic resources for food and agriculture, therefore its Governing Body could decide on any work within this scope. It was advising the Commission of this, and wanted to avoid duplication. While delivered in a gentle tone, ITPGRFA’s message that it should be in charge of all plants was the strongest manifestation so far of the debate over “repartitioning” the Commission and Treaty’s responsibilities.

The International Seed Federation (ISF) intervened stating its preference for a single international ABS regime for all genetic resources used in plant breeding. The seed industry said this regime must recognize the volume of transactions and complicated parentage of varieties in the plant breeding business. In this respect, the seed industry was enthusiastic about the ITPGRFA multilateral system, saying that it offers “administrative simplicity”, and “provides resources at minimal cost.”  ISF wanted “complete coherence” between the multilateral system and the regime applied to non-Annex 1 crops, and that if this was not developed under the Treaty, that it should be done though “model clauses”.

The negotiations result

The Chair (Canada) summarized that it was his sense of the discussion that it was agreed that the Commission could look into non-binding ABS items but not “agreements”, which were binding.   Brazil said it preferred the language of the Ad Hoc Committee, which was that work on binding measures was “premature”.

A Friends of the Chair group was formed, open to participation by all members, with Cuba, the US, Netherlands, Namibia, Mongolia, Brazil, and Australia representing the various regions.  Iran, which did not intervene in the plenary, did wish to work in the Friends of the Chair group. It was unclear if it participated as Iran or in representation of the Near East region.

After several meetings of the Friends of the Chair, a compromise text was tabled that resembles a hybrid of the US and European proposals. In it, each region is to nominate two representatives who are experts in ABS.  The representatives will together form a “team of technical and legal experts”.  This team will “prepare written materials and propose guidance” for the Commission’s Working Groups on genetic resources subsectors and participate in their meetings, including the Working Group on plants. In subsectors where there is no Working Group, such as microbes and invertebrates, the team is to work with the Commission Secretariat.

This team will prepare a document titled “Draft Elements to Facilitate Domestic Implementation of Access and Benefit Sharing for Different Subsectors of Genetic Resources for Food and Agriculture”, which is to be tabled and discussed at the next Commission meeting in early 2015. 

Thus, while ABS discussions will be distributed through the working groups (as Africa feared), the output of these discussions is to be pulled into a single document for discussion by the Commission at its next meeting.


(Not) Transferring responsibilities from the Commission to ITPGRFA

The Commission also considered the question of its relationship to the ITPGRFA and the division of responsibilities between them in relation to plants.  While ostensibly a bureaucratic matter, due to the different memberships and legal natures of the Commission and Treaty, this item has potentially significant ABS implications, particularly if processes to expand the Treaty’s annex or to amend the Treaty are begun.

Before the Commission meeting, a joint session of the ITPGRFA and Commission bureaus was intended to take place.  The Commission Chair, however, said that a formal meeting was impossible due to the late arrival of documents.

CUBA, speaking for GRULAC, said that it was unable to announce a group position due to the late documents.

CANADA said that it supports transfer of activities from the Commission to the Treaty “where feasible”, and that this included responsibility for preparing the State of the World report and monitoring and updating the Global Plan of Action on Plant Genetic Resources for Food and Agriculture.  Canada also said that it supported amending the ITPGRFA to allow it to take over work on genebank standards, but that this amendment wasn’t urgent. 

(Several observers wondered if Canada also had other things in mind for a Treaty amendment process.)

THE NETHERLANDS, speaking for the European Regional Group, said it ultimately favored a “functional division of tasks” between the Treaty and Commission but did not seek transfers now, and further feared that transfers might weaken “the role of the Commission as a coordinating body.”  The Netherlands said ABS for plants could be discussed in both places.

JAPAN supported transferring responsibility for the Code of Conduct on Germplasm Collection to the ITPGRFA.

MEXICO said the Commission is the right place to discuss plants, and that ABS-related plant discussions could also happen at the Treaty and be considered by the Commission.

IRAN, speaking for the Near East region, said it supports the transfer of policymaking tasks related to plants to the Treaty, and said that the Treaty was not subordinate to the Commission. Technical work on plants, Iran said, could remain with the Commission. It favored development of a step-by-step plan for transfer of tasks.

[Of note, while the Near East region’s position on transfer of responsibilities was different than that of other regions with developing countries, the Near East did not take a position in favor of amendment of the Treaty, as did Northern supporters of transferring responsibilities.]

The US said it saw a role on plants for both the Commission and Treaty, but did not want a transfer of tasks.  The US, which is not an ITPGRFA party, said “We like the Commission’s large membership,” and said it would not like to see the Treaty amended. 

MOROCCO, speaking for Africa, said the question was complex and that Africa needed to evaluate further more before it took a position.

ECUADOR supported the status quo.

AUSTRALIA supported transferring activities to the Treaty, and said that both the Treaty and the Commission’s statutes may need amendment. To begin, Australia said, those tasks that don’t require Treaty amendments should be transferred.

THE NETHERLANDS, noting that several delegations had argued that transfer of tasks to the Treaty would avoid waste and duplication, asked the Secretariats to please identify what waste and duplication was occurring.

The Commission Secretariat said that there was none.  The ITPGRFA Secretariat said that perhaps governments would like to compile their own experiences on the issue into reports.

With no consensus on transfer of any activities, the agenda item was closed with agreement to further discuss this issue at future Commission meetings.

On the margins 1:        ITPGRFA benefit sharing and Treaty finance

Discussions in the Commission made clear that a number of countries are thinking about the future of the Treaty, and that some favor changes to it, including the elaborate process of amendments.  Motivations for such changes include industry’s demand for a single ABS regime for crop plants, and governments’ concern that the Treaty lacks financial viability.

Whether such efforts would generate positive results for developing countries, however, is an unanswered question, and many (but not all) developing countries that oppose transfer of responsibilities to the Treaty are obviously skeptical. This is an understandable position given the puny benefits thus far directed to small and diverse farmers in developing countries through the Treaty’s benefit sharing mechanism, and the reportedly negligible income generated from the Standard Material Transfer Agreement (SMTA) used by the Treaty’s multilateral system.

Other skeptics include the United States, which is not a party to the Treaty and would prefer not to see the center of gravity for ABS-related activity in crops to drift toward the ITPGRFA Governing Body, where its influence is more limited than in the Commission.

In addition, many developing countries are concerned that modifications to the Treaty might come at the expense of the Nagoya Protocol, although a smaller number of others, notably Brazil, appear to be interested in exploring the idea.

At a side event sponsored by the Treaty, one of Europe’s representatives at the most recent meeting of the Treaty’s Ad Hoc Advisory Committee on the Funding Strategy, in Geneva in September 2012, informally detailed options for the future financing of the Treaty that are under consideration.  The non-mutually exclusive possibilities include:

• The “African option”, which would require users of the multilateral system to make payments based on access and use, rather than the current commercialization-oriented triggers.

• Increasing the percentage of benefit sharing required in the current multilateral system.

• The “Norwegian option” of pledging 1% of seed sales in countries to the benefit sharing fund.

• Expanding Annex 1.

• Voluntary benefit sharing by vegetable crops breeders based on intellectual property licensing.

[The delegate mentioned that there were six possibilities under consideration but only described five.  The report of the Ad Hoc Committee (IT/ACFS-7/12/Report), describes fewer. A side event planned for later in the week, where these issues were to be discussed in greater detail, was cancelled.]

On the margins 2:        High level meetings and a dialogue

At the UN Conference on Sustainable Development (Rio+20) conference in June 2012, the ITPGRFA held its second “high level round table” on the Treaty.  The meeting was sponsored by Italy, Norway, and Brazil.  Represented at the round table were those Treaty members that choose to attend and not the whole membership of the Treaty.  Although the round table does not have a formal function in Treaty decisions, it did nevertheless adopt an “Action Plan” that the Treaty Secretariat is working to implement. (See the round table report here: http://bit.ly/105fyyW)

A third high level meeting is planned for July 2013 in Indonesia.

Among the items on the action plan from Rio is a new “Keystone-type dialogue”, aimed “to complete the governance of all plant genetic resources for food and agriculture under the Treaty.”  The word Keystone refers to an American organization, the Keystone Center, which specializes in bringing together different sides of policy debates in order to create compromise solutions. A non-profit organization, the Keystone Center is directed by a Board that runs a gamut of interests from large environmental organizations to major players in the seed industry. 

In the late 1980s and early 1990s, a Keystone dialogue on plant genetic resources (formally under the aegis of the Keystone organization) took place between industry, NGOs, CGIAR centers, and government officials. This dialogue is viewed as having been influential in the eventual development of the Global Plan of Action on plant genetic resources and the negotiation of the ITPGRFA. Such dialogues typically employ some version of Chatham House rules, in which statements made by participants are not directly attributed to them outside of dialogue meetings.

Bioversity International, the CGIAR centre based in Rome (formerly IPGRI) is taking the lead in setting up the new dialogue, and at the Commission meeting invitations were privately offered to approximately 15 government, NGO, and industry representatives to attend a first meeting in May.  According to IPGRI, this group is intended to expand at a second meeting later in 2013.  The membership and terms of reference of this group, as well as how its output is intended to be related to the Treaty’s formal processes, remains unclear, and may as yet be undefined.  It is widely rumored that current Bioversity Director-General Emile Frison is interested in a leading role in the group.

Upcoming activity: What’s in an “instrument”?

In the coming intersessional period, the Commission’s ABS-related work will focus on the “Team of Experts” and their interaction with the Secretariat and the Commission’s Working Groups, which promises the Commission’s return to considering ABS issues at its meeting in early 2015. FAO regions will shortly be nominating these experts.

[The Commission has recently met in April of every other year, however, due to FAO budget cycles, it is suggested that the next meeting will be held earlier in the year, perhaps as early as January.]

For plant genetic resources for food agriculture, the focus now shifts to the next meeting of the ITPGRFA Governing Body, scheduled for 24-28 September 2013 in Muscat, Oman.  The report of the Ad Hoc Finance Committee, in particular, is likely to prompt discussions with an important bearing on both the future of the international regime for ABS for crop plants as well as the future of the Treaty’s benefit sharing mechanism.

If any process is begun in the Commission to develop ABS rules or recommendations, or a process in the Treaty to change its multilateral system, or both, such work will need to be consistent with the Nagoya Protocol, in particular its Article 4, which states that other specialized access and benefit sharing agreements and “international instruments” may be developed, provided that they are supportive of and do not run counter to the objectives of the Protocol and the [CBD]. Such an instrument may replace the Nagoya Protocol, only for the specific genetic resources it covers, only when it “is consistent with, and does not run counter to the objectives of the Convention and this Protocol.”

Developing countries may wish to pay particular attention to the Nagoya consistency of any “instruments” developed at FAO and consider very carefully their scope, legal status, and support for the CBD and Nagoya Protocol. The understanding, stemming from the (FAO) Ad Hoc ABS committee, and reiterated by the Commission, is that it is “premature” to explicitly develop any new binding international agreements on ABS in agriculture but, as described by the Canadian Chair, the Commission may consider development of “instruments”, which may be binding or non-binding. 

Continued work in the Commission on non-binding “instruments” (such as guidelines or codes of conduct), if the product is endorsed by the Commission members, thus raises the possibility of replacing the mandatory nature of benefit sharing under the Nagoya Protocol with lesser, optional variations, for agricultural genetic resources. 

That is, somewhat counter-intuitively, a non-binding “instrument” endorsed by the Commission might have the effect of narrowing the applicability of the binding requirements of the Nagoya Protocol and CBD.

It should be carefully considered by developing countries if this type of arrangement would be beneficial, particularly in view of the fact that optional benefit sharing in agriculture under the SMTA of the Plant Treaty has proven ineffectual in delivering benefits to developing country small farmers, who conserve and develop key diversity of agricultural genetic resources.+

 


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