Article 10 – Multilateral System of Access and Benefitsharing
As stated earlier, given the peculiar characteristics of PGRFA, negotiators to the Treaty focussed on the creation of a multilateral system for PGRFA, in harmony with the CBD. This multilateral system obviates the need for determining countries of origin or negotiating terms of access on a case-by-case basis. Instead, facilitated access to genetic materials of an agreed list of crops (set out in Annex I) is to be given, and benefits are to be shared, by Contracting Parties to the Treaty, on the basis of multilaterally agreed terms.
The underlying reasons why a multilateral system for PGRFA was required are numerous. As noted earlier, the maintenance of a high level of intra-specific genetic diversity in crops is essential to preserve yield stability and the ability of crops to resist diseases and adapt to other environmental challenges. Plant breeders, including traditional farmers, need to have easy access to a wide range of genetic diversity in order to develop improved varieties that can meet these challenges. It is particularly important to have access to genetic diversity from the centres of origin and diversity of those crops. Crops often do better outside their centres of origin, where they may be free from their natural pathogens and parasites. But where those or similar diseases and pests strike, it is essential to be able to go back to the centres of origin in order to find resistance to them. When, for example, the famous Irish potato famine struck in the 1830s, it was necessary to turn to the centres of origin in South America to seek traits of resistance to Phytophthora downy mildew.
The needs are not just one way: all countries and regions are to a large extent interdependent on other countries and regions for plant genetic diversity if they are to maintain food security. Countries, particularly poor, developing countries, cannot rely on purely bilateral arrangements for securing access to the plant genetic diversity they need. Such arrangements cannot respond to the continuous needs of the agricultural sector. To set up purely bilateral arrangements is also too costly. Since all countries face the same needs, the only practical solution is to provide for a system of access and benefit sharing on a multilateral basis.
It is to meet these needs that Article 10 establishes the Multilateral System of access and benefit sharing for PGRFA (of a defined list of crops) and associated information.
10.1 In their relationships with other States, the Contracting Parties recognize the sovereign rights of States over their own plant genetic resources for food and agriculture, including that the authority to determine access to those resources rests with national governments and is subject to national legislation.
10.2 In the exercise of their sovereign rights, the Contracting Parties agree to establish a multilateral system, which is efficient, effective, and transparent, both to facilitate access to plant genetic resources for food and agriculture, and to share, in a fair and equitable way, the benefits arising from the utilization of these resources, on a complementary and mutually reinforcing basis.
In Articles 10.1 and 10.2, as well as in the Preamble to the Treaty, the Contracting Parties specifically assert that they have sovereign rights over their PGRFA, and that they are exercising these sovereign rights in establishing the multilateral system. Sovereign rights over PGRFA and the authority of national governments to determine access to those resources are central concepts in the CBD. This article links with the CBD, and makes it clear that the Multilateral System established by the Treaty is fully in harmony with the Convention. Indeed the rules set out in Article 15 of the Treaty governing access and benefit-sharing for the Multilateral System are intended to apply, inter alia, Article 15.2 of the CBD to PGRFA:
“[Parties] shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention”
as well as Article 15.4:
“Access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article”
and Article 15.5:
“Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.”
By becoming party to the Treaty, Contracting Parties have mutually agreed, at the multilateral level, on the terms of access and benefit sharing for PGRFA covered by the Multilateral System to be used in transactions among themselves, and have given their prior informed consent on a multilateral basis, as a means of facilitating access to those PGRFA.
In addition to asserting the Parties' sovereign rights, Article 10.2 establishes the scope of the multilateral system. First, it serves a dual purpose, that is:
To facilitate access to PGRFA; and
To share the benefits arising from the utilization of PGRFA fairly and equitably.
These two purposes must operate on a “complementary and mutually reinforcing basis”. As such, it would be inconsistent with the Treaty for Contracting Parties to promote a multilateral system that provides access without benefit- sharing, or benefit-sharing without access. Moreover, the processes of facilitating access, and sharing benefits should ideally strengthen each other.
Finally, Article 10.2 provides that the purposes of the multilateral system must be achieved in a manner that is “efficient, effective, and transparent”. This provision refers, at least in part, to the institutional structure of the multilateral system, and is similar to some previous proposals, including those put forward as early as June 1991 by the participants at the Keystone International Dialogue Series on Plant Genetic Resources at their third plenary session in Oslo as part of their “Global Initiative for the Security and Sustainable Development of Plant Genetic Resources”.
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