TWN Info Service on Sustainable Agriculture
1 April 2025
Third World Network

FAO: Proposals to amend Plant Treaty open door to corporate control and biopiracy?

1 April (TWN) – A proposal to expand the crop coverage of a global treaty on plant genetic resources for food and agriculture has raised concerns.

The Thirteenth meeting of the Ad hoc Open-Ended Working Group to Enhance the Functioning of the Multilateral System (WG13) of the International Plant Treaty Genetic Resources for Food and Agriculture (Plant Treaty) is meeting from 1 to 4 April at the FAO headquarters in Rome.

The WG13 meeting will consider proposals to amend the Plant Treaty with a view to expand the list of the plants covered under Annex 1. This is part of the Working Group’s mandated task to enhance the functioning of Multilateral System of the Plant Treaty.

The scope expansion proposals raise concerns that they may lead to corporate control of food crops and increase biopiracy of plant genetic resources to unprecedented levels, creating an environment of impunity without clear provisions for accountability and equitable benefit sharing from the use of those resources.

The proposals, if adopted, would potentially alter the basic structure of the Plant Treaty by expanding the scope of its multilateral system (MLS) to include “all plant genetic resources”, compared to the current limited list of such resources in Annex 1, which are accessible through the Plant Treaty.

These amendments have been proposed by the Co-Chairs of the Working Group, who will be presiding over this week’s meeting.

A key concern over the proposed amendments is the impact on the access and benefit sharing (ABS) mechanism under the Plant Treaty. Instead of strengthening benefit sharing mechanisms that secure sovereign rights of developing country Parties and the rights of farmers in all countries, the amendments could lead to a further erosion of transparency and accountability in the ABS mechanism. This in turn could also potentially open the door for further biopiracy and abuse of rights of developing countries and their indigenous peoples and local communities to their natural resources and associated traditional knowledge.

It is widely acknowledged, including in the Plant Treaty, that it is farmers who have conserved and sustainably used plant genetic resources for food and agriculture (PGRFA) that is the basis of food sovereignty and security. Farmers’ rights are explicitly enshrined in the Plant Treaty. Africa and Latin America currently contribute 58% of PGRFA, while Asia contributes 20% to the MLS. The developed country regions like the European Union and North America together contribute only about 16% to the system.

Current Functioning of MLS leads to undetectable usage and biopiracy

Annex 1 establishes the existing scope of the Plant Treaty, a selection of food crops and forages that was negotiated when the treaty was born. Article 12 obligates Parties to take legal or other appropriate measures to provide facilitated access to the PGRFA of these food crops and forages. Article 11 also obligates Parties to take appropriate measures to encourage natural and legal persons within their jurisdiction who hold plant genetic resources for food and agriculture listed in Annex I to include such resources in the MLS. The Treaty further provides for the Governing Body to decide on additional measures regarding persons who do not include their PGRFA in the MLS, including denying facilitated access to such persons.

“Include in the MLS” practically means announcing the willingness to share PGRFA under the Standard Material Transfer Agreement (SMTA) of the Plant Treaty. Once this is communicated, the person is supposed to share PGRFA with any prospective recipient who requests for such access. The recipients are further allowed to share such PGRFA with third parties, by using the same SMTA. The usual practice is that Parties notify the Plant Treaty Secretariat to include their ex-situ collections maintained by government entities as part of the MLS system. Countries have various formats and procedures in which they maintain or build ex situ collections.

The signed SMTAs are registered with the Treaty Secretariat, and FAO as a third-party beneficiary has created a Trust Account named “Benefit Sharing Fund”. If the recipients commercially sell “seeds or other propagating materials” developed using the MLS PGRFA and restrict others from further research and breeding, they are then expected to contribute 1.1 % of the sales value less 30% (apparently a cost deduction) to the Fund. 

It must be noted that all other ways of using plant genetic resources for food and agriculture purposes and making commercial benefits out of such uses are not covered in the SMTA. Since MLS operations began, around 112,000 SMTAs have shared 6.7 million PGRFA with 25,300 users, yet only five seed companies have contributed to the Benefit Sharing Fund, collecting a mere total of $391,721, of which 91% has come from one firm.

Similarly, the shared PGRFA are not supposed to be used for non-food/non-feed purposes. In the case of use for food and agriculture the FAO Benefit Sharing Fund should be receiving benefits, while Parties should be receiving benefits directly through the national biodiversity authorities for non-food-non-feed uses. However, there is no monitoring system of the usage of the system or PGRFA maintained by FAO.

No information about the SMTA, except for aggregate statistics are available in the public domain for farmers organisations or civil society organisations to undertake vigilance initiatives that their rights as well as their countries’ rights are protected. There is currently no way to track the diversion of PGRFA to other commercial uses. According to a CGIAR presentation made on 31 March 2025, even the commercial use of PGRFA in seed or plant variety products is not detectable by authorities unless the recipients come forth and disclose their use.

Thus, the Treaty has already become an instrument promoting biopiracy with impunity to the violators of national ABS laws. This s in contravention of the Plant Treaty itself as well as the Convention on Biological Diversity (CBD) that governs genetic resources not covered by the Plant Treaty. There is hardly anything to rectify this situation in the proposals to enhance the functioning of MLS that will be discussed this week at the FAO.

[CGIAR is the Consultative Group for International Agriculture Research. The Plant Treaty and CBD share the same objectives of conservation and sustainable use of genetic resources, as well as fair and equitable benefit sharing from such genetic resource use.]

Proposals to enhance MLS

The proposals to enhance comes in three parts: (i) proposed amendments to the treaty (Annex 1), (ii) proposed amendments to the SMTA, and (iii) the resolution adopting these amendments, along with other measures.

Substantively, these parts deal with three specific issues.

First, the proposed amendments to the Plant Treaty will only increase facilitated access to seeds and propagating materials.

Second, the proposed amendments to the SMTA deals with payment options and rates, and certain other additions such as confidentiality clauses.

Third, the resolution deals with issues of digital sequence information (DSI) arising from the PGRFA, issues of non-ratification of amendments and non-entry into force of amendments, certain clarification as to interpretation and application of SMTA, intellectual property rights, and other allied matters.

Proposals to expand Annex 1 scope exacerbates the problems

Three new paragraphs are proposed to be inserted in Annex 1 of the Plant Treaty as follows:

“1. In furtherance of the objectives and scope of this Treaty, in accordance with Article 3 of this  Treaty, and without prejudice to Article 12.3 h of this Treaty, the Multilateral System shall, in  addition to the Food Crops and Forages listed above, cover all other plant genetic resources for food  and agriculture, including those plant genetic resources for food and agriculture previously excepted  or excluded in the list above, that are under the management and control of the Contracting Parties  and in the public domain and that are found in ex situ collections.

2. At the time of its ratification, acceptance or approval of this Amendment, a Contracting Party may, exceptionally, declare certain and a limited number of species that it will not make available under the terms and conditions of the Multilateral System. Such a declaration shall not affect the rights and obligations of any other Contracting Party related to the species, nor those of the International Agricultural Research Centres or other International Institutions that concluded an agreement with the Governing Body under Article 15 of this Treaty. A Contracting Party may withdraw its declaration at any time, or eliminate plant genetic resources for food and agriculture from its list at any time, but shall not make any additional declaration.

3. The Governing Body may decide at its Fourteenth Session that Contracting Parties, who have ratified, accepted or approved this amendment, may declare, within a specified period of time, additional species that they will not make available under the terms and conditions of the Multilateral System.”

These proposed amendments to Annex 1 effectively removes limitations on the scope of the MLS by allowing any plant species to fall under the MLS, if a trait or gene from those species potentially benefits food crop or forage breeding. PGRFA is defined in Article 2 as any “genetic material of plant origin of actual or potential value for food and agriculture”.

As of now, Annex I contains a list of 35 food crops and 29 forages selected according to Article 11.1. based on two criteria – importance of food security and the level of interdependence between countries to maintain access to genetic diversity relating to these crops.

The proposal is to give up on this list and open up the Annex for “all PGRFA”. It is also proposed to include all previously excluded crops. The language in the proposed Paragraph 1 further talks about three conditions such as the PGRFA has to be under the management and control of the Party, and in the public domain, as well as to be found in ex situ collections. However, the treaty has only a definition for “ex situ collections”, and there is no definition for “management and control” or for “public domain”.

Technical experts suggest to TWN that there are practically very limited difficulty in establishing any of these conditions. PGRFA found in one territory could easily end up in ex situ collections almost without any conscious effort of regulatory / oversight officials. This means practically, if a developed country claims that any of the plants found in the territory of a developing country Contracting Party has some potential value for food and agriculture, there will be significant international pressure on those developing countries to make genetic resources of such plants available through the MLS. There will be even technical assistance promises and channels to make plants found in in situ conditions a part of ex situ collections.

Even non-edible plants like teak or Chinese happy tree (Camptotheca acuminata) and rare species endemic to certain countries (e.g. Musa textilis, Welwitschia, or Bamboo Orchid), could be compelled to be shared through the MLS, if a government university researcher has collected and added the samples into the university collection. There are around 30,000 edible plants and 7,000 cultivated plants. These plants would certainly be considered as part of the MLS even reasonably assuming that PGRFA is strictly understood as edible plants. 

The proposed Paragraph 2 provides a one-time opportunity to list the plants that countries consider that are outside of the scope of the MLS. However, this is not practical considering the number of species that will get otherwise included, let alone undiscovered species. This negative list approach (all are included except for what is explicitly excluded) means, countries can only indicate a few limited crops to be out of the scope of the MLS.

According to observers, this is an attempt to usurp jurisdiction over plant genetic resources from national legislation and the CBD.

It should be noted that the proposal to expand Annex I is inconsistent with the basic structure of the Plant Treaty and its MLS. The preamble to the Plant Treaty clearly refers to the MLS as a system for ABS for a “negotiated selection of PGRFA”. Article 1 also maintains that the objectives of the Treaty are to be in harmony with the CBD meaning it should not alter the rights guaranteed under the Convention. This is achieved currently by limiting the scope of the MLS through Articles 11.1. and 12.3.a of the Plant Treaty.

Article 11.1 states: “In furtherance of the objectives of conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of benefits arising out of their use, as stated in Article 1, the Multilateral System shall cover the plant genetic resources for food and agriculture listed in Annex I, established according to criteria of food security and interdependence”.

Article 12.3.a states: “… In the case of multiple-use crops (food and non-food), their importance for food security should be the determinant for their inclusion in the Multilateral System and availability for facilitated access”.

However, with the Working Group Co-chairs’ amendment proposals, this understanding of the Plant Treaty is fundamentally changed – it is no more a negotiated selection; the Annex is no longer a list of food or forage crops selected based on food security and interdependence, but all PGRFA. There is no harmony with CBD as this expansion amounts to a takeover, and leaves a very limited number of plant genetic resources to be regulated under national legislation. Thus, a developed country could pressurize developing countries to notify any plant genetic resources found in a developing country territory to be considered as part of MLS and share them through the SMTA which offers a system of opacity and impunity to biopiracy. 

Illusion of improvements in Benefit Sharing

While the proposed amendments aim to broaden the scope of the MLS to include all plant resources, they fail to effectively enhance benefit sharing under the Plant Treaty via amendments to the Treaty itself. Currently, the revisions centre on benefit-sharing obligations within the SMTA but do little to improve the enforcement of user payments. The suggested “subscription system” is merely a rebranded version of an existing mechanism under Article 6.11 of the SMTA. Moreover, participation in this system remains optional, allowing recipients to opt for alternative payment methods that permit prolonged delays or even complete avoidance of payments after years of deferral.

An observer close to the Plant Treaty proceedings for several years now, told TWN that “25,000 users have accumulated access to 6.6 million (samples of) PGRFA using around 112,000 SMTA. Yet we do not know about one user, who has opted for Article 6.11 currently”.

Additionally, all these payment options impose no benefit-sharing obligations until the commercialization of a product which is a PGRFA in itself. In other words, recipients are only required to contribute financially if, and when, a seed or propagating material reaches the market – and even then, only if MLS resources can be definitively proven to have been used in its development. Given the absence of a robust accountability mechanism, tracking or verifying such integration remains nearly impossible.

Moreover, if an entity acquires PGRFA from the MLS, modifies it, and cultivates the crop exclusively by itself and/or its subsidiaries, it can continue selling the food crops without ever being required to share benefits. Similarly, if a food processing company or brewing company acquires PGRFA from the MLS, modifies it, and cultivates the crop exclusively for its own food production, it can continue selling the final processed food product without ever being required to share benefits. There is nothing proposed to cover this kind of commercialization in the SMTA. The stark weakness in the current system will remain, where payments from businesses that commercialise use of PGRFA in an exclusive manner through corporate tie-ups are not captured.

Erosion of transparency and accountability

Rather than addressing the existing transparency issues, the proposed amendments introduce three new confidentiality clauses within the SMTA, further legitimizing the current lack of public access to information on who utilizes MLS resources and how they are used.

This directly undermines the sovereign rights of States, as recognized by the CBD and its Nagoya Protocol on access and benefit sharing, which recognises nations’ authority to regulate access to genetic resources and their DSI across various sectors, including pharmaceuticals and bioenergy. The Plant Treaty has created exceptions to this national regulation of access for betterment of food security across the globe for a negotiated selection of plant genetic resources.

However, it is very clear that the resources shared through MLS cannot be used for other purposes. The resources need to be separately collected via authorization of respective national authorities and benefit sharing should be committed directly with them, should someone want to use resources for these other purposes. The revenue or other products like medicines that could be created from such other use is to benefit their populations.

Since such rights exist beyond the scope of the Plant Treaty and a part of it is being contributed to the treaty for a global public good, it is imperative that the treaty upholds, rather than weakens, the rights of States. The Plant Treaty needs to respect and value the contributions Parties (and their farmers) are making for food security; by protecting the rights they are sharing with the Treaty. Strong transparency mechanisms, and reporting obligations are required to do so.

However, instead of undertaking that responsibility, a package of measures supposedly to enhance the MLS seeks to make the situation even more opaque. This not only provides ways for recipients to divert the resources but also subject the resources to intellectual property claims and other rights without acknowledging the contributions of the original provider and without any prior informed consent from them. Once such created rights are obtained then the same could be used to dominate the food economy, to the extent that even the right to seeds of farmers are jeopardized.

Furthermore, on the proposed measures with respect to DSI generated from PGRFA, there is no clear guidance regarding the process of data generation, storage, exchange, subsequent use and benefit sharing arising from the use of the DSI without accessing materials. As a result, the recipients especially from the North and those funded by the North can keep publishing DSI in an unaccountable manner in databases that promote anonymous sharing under the guise of open access.

In fact, the package of measures fails to promote open science as agreed unanimously by States under the UNESCO Recommendation of Open Science – although certain proposed measures speak about open access. The proposal here on open access as well, without good data governance as required under the Open Science Recommendation, risks avoidance of benefit sharing with impunity and acceleration of digital biopiracy.

In short, the proposed package of measures goes against the spirit of the MLS as mentioned in Article 10.2 which states the facilitated access to PGRFA as well as fair and equitable benefit sharing from the utilization of the PGRFA should be “mutually reinforcing”. Even though it is clear that benefit sharing has failed, while access via SMTA has really flourished, the package of measures does very little to improve benefit sharing. At the same time, it proposes radical expansion of Annex 1 which could potentially cover all plant genetic resources from the countries that are Plant Treaty Parties and lock in more corporate control of genetic resources.