FAO: Fixing seed treaty's access and benefit-sharing system
Published in SUNS #7670 dated 8 October 2013

Austin, Texas, USA, 7 Oct (Edward Hammond*) -- There is a move to improve the access and benefit-sharing system of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).

The Treaty's Governing Body, at its 5th session that met on 24-29 September in Muscat, Oman, decided to start talks to change the Treaty's access and benefit-sharing structure, and its Multilateral System to exchange seeds, which includes key genebanks with collections of many of the world's most important food and feed crops.

Although a formal decision on changes lies at least two years away, and likely more, if the talks are successful, they will likely require amendments to the Treaty.

ITPGRFA's Governing Body also endorsed a "multi-stakeholder dialogue" to provide input into the talks. The dialogue is being organised and promoted by Bioversity International, the Rome-based member of the Consultative Group on International Agricultural Research (CGIAR).

Bioversity has scaled back its ambition for the dialogue, first tabled in mid-2012, but it continues to be described in very different terms by different prospective participants.

A FAILING ABS SYSTEM

Almost 12 years after its adoption in late 2001, the ITPGRFA's access and benefit-sharing (ABS) system has failed to generate mandatory - or even voluntary - payments from the seed industry, even though industry relies on the diversity placed in the Multilateral System (MLS) genebanks to develop commercial seed offerings.

The Treaty's Benefit Sharing Fund, which was intended to support projects to help small farmers conserve and develop crop biodiversity, has thus been starved of financing.

The increasingly stark imbalance - industry has full access to crop diversity in the MLS, while support for small farmers has largely failed to materialise - has led many governments, North and South, to question the Treaty's long-term viability.

Since its inception, the Benefit Sharing Fund has only managed to function through sporadic voluntary contributions from governments such as Norway and the European Union.

At the recent ITPGRFA's Governing Body's 5th Session, governments at last widely and formally acknowledged that the Treaty could fail if the benefit-sharing system is not made more effective.

To address the looming crisis, the Governing Body established an Ad Hoc Working Group charged with evaluating alternatives for the Treaty's financial mechanism and with "enhancing" the Treaty's Multilateral System of access to diverse varieties of 60 globally important crops, such as maize, wheat, potatoes, rice, beans, and sorghum.

The Working Group will meet at least two times before the Governing Body reconvenes in 2015.

Modifying the Treaty's ABS system will require successfully balancing a complicated set of concerns.

In general, access and benefit-sharing for biodiversity - including crop diversity - that is not inside the ITPGRFA MLS is subject to the terms of the Convention on Biological Diversity (CBD) and, more particularly, its Nagoya Protocol on access and benefit-sharing, which is gathering ratifications and is expected to enter into force in 2014.

For agricultural germplasm, Europe particularly favours the Treaty's MLS, despite its shortcomings - a position that some link to hesitancy about the Nagoya Protocol.

At the ITPGRFA, Europe is pursuing an unsubtle quid pro quo, dangling the possibility of a fixed benefit-sharing system in return for granting its desire to expand the number of crops in the MLS.

In contrast, nearly all developing countries take a position more in favour of the CBD's approach for agriculture, and say that the Treaty's benefit-sharing mechanism must be fixed first, before any serious talk of adding new crops to the MLS.

Within the Food and Agriculture Organisation (FAO), responsibility for genetic resources for food and agriculture is divided between the ITPGRFA and the Commission on Plant Genetic Resources for Food and Agriculture (CGRFA).

North countries outside Europe, such as Canada and Australia, also generally favour the approach of the FAO over the CBD for addressing genetic resources for food and agriculture, including for other types of agricultural diversity (such as domesticated animals and industrial microbes) that fall under the purview of the CGRFA.

These countries' position, however, is complicated by the fact that their ally the United States has not ratified the ITPGRFA, and maintains a position that the Treaty should not be changed.

Until recently, Japan was in a similar position as the US, however, it has now acceded to the Treaty and will shortly begin participating as a full contracting party.

There are concerns among developing countries that the "other North" countries, and to an extent Europe, are seeking to start numerous processes within FAO, a number of which may be ultimately inconclusive, but each pertinent to some aspect of genetic resources for food and agriculture, as a means of maintaining the status quo and thwarting the application of the Nagoya Protocol to agricultural genetic resources.

THE COURSE OF DISCUSSION

As the meeting got underway on 24 September, discussion on the sidelines made clear that progress on the financial mechanism was widely regarded a "make or break" issue for the Treaty.

In a brief consideration in the plenary that afternoon, Europe spoke if its desire to simultaneously discuss the issues of benefit-sharing and expanding the MLS to cover more crops.

In contrast, Indonesia, speaking for developing countries, the Group of 77 and China, said that developing a fix for the benefit-sharing system was a priority, and that while it would support establishment of an Ad Hoc Working Group to further discuss this issue, it did not see expansion of the MLS as a main consideration of that Working Group nor as a precondition to improved benefit-sharing.

Kenya, speaking on behalf of Africa, supported the G77 and China, and emphasised that any solution to the Treaty's ABS problems needed to be harmonious with the Nagoya Protocol.

Honduras, speaking for GRULAC (Group of Latin American and Caribbean countries), also signaled that it would not accept expansion of MLS as a precondition to improved benefit-sharing.

The Chair moved to establish a contact group.

In the ensuing discussion, Brazil, while "taking into consideration the G77 and China", diverged from GRULAC and said that it favoured Europe's position and was very eager to begin talks.

Further, Brazil disagreed with Ecuador, which asked for time for regional consultations to select contact group members.

Malaysia, speaking for Asia, emphasised that the Treaty was a "package deal" intended to balance access and benefit-sharing, but that the "Treaty is going nowhere" at present because benefits are not flowing.

Asia emphasised the need for a "new package" to last the next 20 years. It warned that while the Treaty took seven years to negotiate, the Parties couldn't afford to take so much time now.

If Parties were insufficiently ambitious, Asia warned, the Treaty might as well be placed in "maintenance mode" and meetings of its Governing Body switched from every two to every four years.

An "open ended" contact group was formed that all countries could attend, with regional representation for speaking. This group met several times over the following days to develop draft resolution text.

In the contact group, broad agreement emerged that an intersessional process was needed to discuss access and benefit-sharing, with only Canada expressing hesitancy and acting to put a brake to the process.

More difficult questions surrounded the terms of reference for the intersessional Working Group, specifically, whether or not it would discuss potential expansion of the MLS.

After some back and forth, a compromise was reached that the Working Group would take up the issue of benefit-sharing at its first meeting, with the mandate to consider how to "increase user-based payments and contributions to the Benefit-sharing Fund in a sustainable and predictable long-term manner".

At its following meeting, the Working Group would take up the MLS, then considering the possibility to "enhance the functioning of the Multilateral System by additional measures".

The phrase "enhance the functioning" was proposed by Europe as a compromise when it became apparent that developing countries, particularly Africa and GRULAC, would not accept Europe's favoured proposal for the Ad Hoc Working Group to discuss the "scope" of the MLS.

The contact group lengthily considered regional balance in the Working Group, and ultimately decided to use a standard FAO formula for regional representation.

(Five each from Africa, Europe, Asia, and GRULAC, three from the Near East, and two each from North America and the Southwest Pacific.)

Considerable time was devoted to efforts by Canada (as North America) and Australia (as the Southwest Pacific) to secure a place at the negotiating table in the Working Group for the United States, despite the fact that it was clear from the beginning that other regions had no intention of allowing a non-party to work on an equal basis as contracting parties in the Working Group.

Europe pressed other contracting parties to allow formal participation (as observers) for civil society organisations, farmers' organisations, the seed industry, and the CGIAR.

Europe's proposals were strongly supported by Africa and met no resistance except from the Southwest Pacific.

Represented by Australia, the Southwest Pacific did not object to observer participation in principle, but it sought to place that participation on an unsure footing by insisting on a number of contingencies.

SOME SORT OF DIALOGUE, MAYBE

On the subject of the multi-stakeholder dialogue, the Governing Body decided that it "Welcomes 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."

Organised by Bioversity International, this informal process to discuss the Treaty's future was formerly described as a "Keystone-type dialogue" - in reference to a particular style of Chatham House process used by the Keystone Center, an American institute specialising in bringing government, CSOs, and industry together for talks.

(A previous Keystone Dialogue on agriculture fed into the process of negotiation of the ITPGRFA.)

As it became clear that the Governing Body would establish the Working Group with representation from stakeholders, enthusiasm for the dialogue waned in important quarters, especially among European delegates.

CSOs were also divided. Some backed the effort, while others favoured a more open and inclusive format for discussion between stakeholders.

At the end of the meeting, a dialogue was endorsed by the Governing Body, but its style of organisation remained unclear. Some, including the ITPGRFA Executive Secretary, continued to refer to it as a "Keystone dialogue".

Bioversity itself described a scaled-down and more open process than what it initially proposed. Other advocates insisted that informal discussions pointed in the direction of a time-limited, and relatively open process designed to provide a single input into the Working Group at the beginning of its deliberations.

The ITPGRFA Governing Body will next meet in 2015, and during the intersessional period, the Working Group will meet at least two times. Contracting parties will shortly put forward regional representatives.

The ITPGRFA Bureau is charged with selecting two representatives each from CSOs, farmers' organisations, the seed industry and the CGIAR.

[* Edward Hammond is Director of Prickly Research (www. pricklyresearch. com) and has worked on biodiversity issues since 1994. He attended the ITPGRFA Governing Body's 5th session in Oman.]