Plant genetic resources are the foundation for modern agriculture, which depends to a large extent on the continued improvement of plant crops. All regions and countries are dependent, to a greater or lesser degree, on PGRFA from other regions or countries – that is, countries are interdependent insofar as PGRFA are concerned. Therefore, continued access to a wide range of plant genetic resources in other regions is essential not only for crop improvement and modern agriculture but also for achieving food security.
The list of crops set out in Annex I to the ITPGRFA, which are included in the Multilateral System of ABS, has been established in accordance with the criteria of food security and interdependence.
The crops listed contribute some 80 % of the world’s total energy food supply.
Source: G. Moore and W. Tymowski, Explanatory Guide to the International Treaty on Plant Genetic Resources for Food and Agriculture (Gland and Cambridge: IUCN, 2005), p. 5.
Scope of the Multilateral System
All the PGRFA of the crops listed in Annex I are not automatically included in the Multilateral System.
Only the crops for which PGRFA are under the management and control of the Contracting Parties and are in the public domain are automatically included within the Multilateral System (Article 11(2) of the ITPGRFA). All other holders of PGRFA are encouraged to include them into the system, and Contracting Parties shall take appropriate measures to encourage those inclusions (Article 11(2) and (3) of the ITPGRFA). Furthermore, the Multilateral System includes PGRFA listed in Annex I and held in the ex-situ collections of the International Agricultural Research Centres of the Consultative Group on International Agricultural Research (Article 11(5) of the ITPGRFA).
Facilitated access
Contracting Parties agreed to facilitate access to the PGRFA included in the Multilateral System for other Contracting Parties and for legal and natural persons under their jurisdiction, according to the conditions set out in Article 12 of the ITPGRFA. In particular, Article 12 provides that:
such facilitated access will only be provided for the purpose of utilisation and conservation for research, breeding, and training for food and agriculture and not for chemical, pharmaceutical, and other industrial uses beyond food and animal feed (Article 12(3)(a) of the ITPGRFA) – access for other purposes is therefore not covered by the Multilateral System;
facilitated access shall be pursuant to a standard material transfer agreement (SMTA) that has been developed by the Governing Body (Article 12(4) of the ITPGRFA);28 and
recipients of material are required not to claim intellectual property or other rights that limit facilitated access to PGRFA, or to their genetic parts or components, in the form received from the Multilateral System (Article 12(3)(d) of the ITPGRFA).
It is important to note that by being a Contracting Party to the ITPGRFA, a country is effectively agreeing that access to the specific PGRFA does not require Contracting Parties to grant PIC or to negotiate bilaterally MAT for each transaction (Moore and Tymowski, 2005, p. 28). In legal terms, however, it could be said that PIC has already been granted through Article 11 of the ITPGRFA and that MAT have been pre-negotiated and agreed multilaterally by the Contracting Parties, as contained in the SMTA, which a recipient must accept in order to obtain PGRFA from the Multilateral System.
Furthermore, it needs to be recognized that for PGRFA outside of the limited scope of the Multilateral System, Contracting Parties may nevertheless decide to provide facilitated access as foreseen under Article 12(3) and (4) of the ITPGRFA (Moore and Tymowski, 2005, p. 89).
Benefit-sharing
Article 13 of the ITPGRFA sets out the agreed terms for benefit-sharing within the Multilateral System.
According to Article 13(1), the Contracting Parties recognize that facilitated access to PGRFA itself constitutes already a major benefit. Furthermore, any benefits arising from the utilization of these resources shall be shared fairly and equitably through a range of mechanisms described in Article 13(2):
exchange of information;
access to and transfer of technology;
capacity-building; and
sharing of monetary and other benefits of commercialization.
An important innovation of the ITPGRFA in the area of benefit-sharing can be found in Article 13(2)(d) (ii). A provision is included in the SMTA that requires recipients who commercialize products that are PGRFA and that incorporate materials accessed from the Multilateral System to pay an equitable share of the benefits arising from the commercialization of the product into an international fund established by the Governing Body. Such payment is mandatory where restrictions are placed on the availability of the product for further research and breeding. Where no such restrictions are in place, the recipient is not under any obligation to make a payment but is encouraged to do so voluntarily. The benefits arising from the use of PGRFA shall flow directly or indirectly to farmers in all countries who conserve and utilize PGRFA, especially those in developing countries and countries with economies in transition (Article 13(3) of the ITPGRFA) (Moore and Tymowski, 2005, p. 16).
Arguably, the ITPGRFA provides for a specialized international ABS instrument in the sense of Article 4(4) of the Nagoya Protocol and thus prevails over the ABS provisions under the Protocol. Also, the possible expansion of Annex I of the ITPGRFA may qualify as relevant ongoing work or practices under other international instruments, in terms of Article 4(3) of the Nagoya Protocol. This understanding is supported by different provisions in the Preamble of the Nagoya Protocol that specifically recognize and recall the importance of the ITPGRFA and its Multilateral System.
International Convention for the Protection of New Varieties of Plants
The International Convention for the Protection of New Varieties of Plants, adopted in Paris in 1961 (entry into force in 1968),29 established the International Union for the Protection of New Varieties of Plants (UPOV). The mission of the UPOV is “to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society”.
Farmers have practiced seed selection and plant breeding since the beginning of agriculture. The UPOV Convention acknowledges the achievements of breeders of new varieties of plants by providing a sui generis form of intellectual property protection that has been specifically adapted for the process of plant breeding and has been developed with the aim of encouraging breeders to develop new varieties of plants. It offers protection to the breeder, in the form of a “breeder’s right”, if the plant variety meets the following requirements:
distinct from existing, commonly known varieties;
sufficiently uniform;
stable; and
new in the sense that they must not have been commercialized prior to certain dates established by reference to the date of the application for protection.30
According to Article 15(1) of the UPOV Convention, three compulsory exceptions limit the breeder’s right that shall not extend to acts done:
privately and for non-commercial purposes (exemption for subsistence farmers);
for experimental purposes (the so-called research exemption); or
for the purpose of breeding other varieties (the so-called breeder’s exemption).
29 Since its adoption, the International Convention for the Protection of New Varieties of Plants was revised in 1972, 1978, and 1991.
30 UPOV Introduction, at www.upov.int/en/about/introduction.htm.
Furthermore, Article 15(2) contains an optional exception for farm-saved seed, the “farmer’s privilege”, such that “each Contracting Party may, within reasonable limits and subject to safeguarding of the legitimate interest of the breeder, restrict the breeder’s rights in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety”.
UPOV considers the system of breeder’s rights and exceptions as a specialized form of ABS. This reflects the view of UPOV that plant breeding is a fundamental aspect of the sustainable use and development of genetic resources and that the worldwide community of breeders needs access to all forms of breeding material to sustain the greatest progress in plant breeding and to maximize the use of genetic resources for the benefit of society.31 It therefore provides for access to genetic resources as a key requirement for sustainable and substantial progress in plant breeding, and it includes benefit-sharing principles in the form of breeder’s exemptions and other exceptions to the breeder’s right.
United Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea (UNCLOS) was adopted in 1982 and entered into force in 1994. UNCLOS is perceived as the cornerstone of the currently existing international legal framework governing the oceans and seas. It “sets out the legal frameworks within which all activities in the oceans and seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector.”32
UNCLOS foresees different maritime zones within which coastal States can exercise different rights and are expected to fulfil certain obligations:
In its internal waters and the territorial sea, the coastal State exercises sovereignty over the living and non-living natural resources found in the water column, the seabed, and the subsoil thereof.
In its contiguous zone, the exclusive economic zone, as well as on the continental shelf up to 200 nautical miles from the baseline, the coastal State enjoys sovereign rights over the exploitation, conservation, and management of living and non-living natural resources found in the water column, the seabed, and the subsoil thereof and exercises jurisdiction over marine scientific research and for the protection of the marine environment.
On its extended continental shelf (not exceeding 350 nautical miles from the baseline or 100 nautical miles from the 2.500 metre isobaths), the coastal State enjoys sovereign rights over non-living natural resources found in the seabed and the subsoil thereof, as well as over sedentary species – that is, organisms that “either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil”.
ABS for marine genetic resources found in these geographic areas is subject to national legislation and thus falls under the scope of the Nagoya Protocol. In contrast, marine genetic resources found in areas beyond national jurisdiction (ABNJ) – that is to say, the high seas and the so-called Area (that is the deep seabed) – are outside of the scope of the Nagoya Protocol.
31 UPOV. Access to Genetic Resources and Benefit-sharing – Reply of UPOV to the Notification of June 26, 2003, from the Executive Secretary of the Convention on Biological Diversity (CBD) (Council of UPOV, 37th ordinary session, 2003), p. 2, at www.upov.int/news/en/2003/pdf/cbd_response_oct232003.pdf.
32 UN doc A/RES/65/37, of 7 December 2010, Preambular para 4, at