Article 15 – Ex Situ Collections of Plant Genetic Resources for Food and Agriculture held by the International Agricultural Research Centres of the Consultative Group on International Agricultural Research and other International Institutions
The IARCs of the CGIAR hold important ex situ collections of PGRFA and also have major crop improvement programmes, organized in collaboration with national agricultural research systems. While CGIAR Centres currently maintain only approximately 12% of the accessions held in ex situ conditions worldwide, they conserve a comparatively higher percentage of known diversity, due in large part to the composition of the collections. On average, landraces and wild relatives comprise only 16% of national collections. The comparable figure for the CGIAR Centres is 73%.119 In addition, CGIAR collections are generally well maintained and well documented. The combination of these factors makes these collections a unique resource and one of great utility to breeders. Not surprisingly, the collections are used extensively: research on flows of accessions into and out of CGIAR genebanks demonstrates that virtually every country in the world is a major net beneficiary of germplasm flows.120 CGIAR collections, therefore, are important not just for CGIAR plant breeders, but serve as an important resource for any international system of germplasm conservation and management.
Much of the material collected has come through joint missions. Duplicate samples of the collected materials have always been made available to national programs and national genebanks. Research results, (such as characterization and evaluation data) have subsequently been made available to national programmes to enable them to use and develop these resources more fully and efficiently. In many cases, national scientists received training and funds to work with the materials.
Countries have been able to obtain far more materials from the CGIAR than they, individually, could ever have contributed. Even during the height of collecting activities, developing countries were requesting 4 samples for every 1 they contributed. In recent years, the ratio has widened to at least 60 to 1. Since 1994, Centres have distributed more samples to developing countries than they collected since the founding of the CGIAR.
Centre collections serve as an “insurance policy” for countries against the loss of diversity at the national level. More than 40 countries have benefited from being able to obtain materials from the CGIAR that are no longer available within the country that first provided them to the Centre.
Centres produce and provide valuable, improved germplasm free to countries. Each year the Centres send out hundreds of thousands of samples, products of their research, to national programs and others. In terms of sheer numbers, distribution of improved materials dwarfs that of landraces, wild relatives, etc., that constitute the bulk of materials covered under the Agreement with FAO. The products of Center research provide enormous economic benefits to developing countries. Two examples serve to illustrate that point: (a) over the past 30 years, 85% of all spring bread and 86% of all spring durum varieties released by developing countries and sown by their farmers had CIMMYT-produced wheat in their ancestries; (b) while yams are one of the most important crops in the world, particularly for low-income people, few developing countries have a single public-sector plant breeder working on the crop. Most national programs and the millions of farmers they serve, therefore, depend heavily on the International Institute of Tropical Agriculture (IITA) in Africa to supply them with disease-resistant productive yam varieties.
The legal status of the CGIAR collections has always been ambiguous. In 1994, 12 of the CGIAR Centres signed agreements with FAO placing collections of plant germplasm held by them under the auspices of FAO. The collections were recognized under those agreements as being held by the Centres in trust for the benefit of the international community. Their status was discussed extensively in the negotiations leading to the Treaty, resulting in Article 15, devoted to these collections.
Generally speaking, Article 15 calls on the IARCs of the CGIAR to sign agreements with the Governing Body to bring their ex situ collections under the terms of the Treaty. Such agreements are necessary in order to bring the collections within the purview of the Treaty, as the IARCs have their own legal personality and governance system, and cannot be bound by the provisions of the Treaty without their consent. But since they are not States, they cannot become Parties to the Treaty in their own right. Under these agreements, PGRFA falling under the Multilateral System would be distributed under the terms of the standard MTA common to Contracting Parties and Centres.
Non-Annex I PGRFA assembled prior to the coming into force of the Treaty would also be distributed under a different MTA (based on the current MTA as amended and approved by the Governing Body). Material not covered by the multilateral system that is received and conserved after the coming into force of the Treaty would be available on terms mutually agreed with the country of origin or other country that acquired them in accordance with the CBD or other applicable law. Other provisions of the Treaty related to the Centres are similar to those now in effect under the FAO-CGIAR Agreements. No provisions are specified for differential treatment of Contracting Parties and non-Parties in relation to materials made available by Centres under the Treaty.
15.1 The Contracting Parties recognize the importance to this Treaty of the ex situ collections of plant genetic resources for food and agriculture held in trust by the International Agricultural Research Centres (IARCs) of the Consultative Group on International Agricultural Research (CGIAR). The Contracting Parties call upon the IARCs to sign agreements with the Governing Body with regard to such ex situ collections, in accordance with the following terms and conditions:
Article 15.1 defines the scope of the Treaty with respect to the Centres. Specifically, it uses language similar to the previous agreement with the FAO in its reference to ex situ collections being held in trust by the Centres. Moreover, it calls upon Centres to sign agreements with the Governing Body of the Treaty regarding such ex situ collections.121 “Calling upon” the Centres to sign such agreements is more vigorous language than simply “inviting” them to do so, but does not presume to replace CGIAR governance as would occur if the Treaty explicitly declared that the collections are part of the Multilateral System. In effect, the Treaty's provisions extend to:
all materials held “in trust” by the Centres as of the date on which the Centres sign formal agreements with the Governing Body, regardless of whether these materials are of crops listed in Annex I or not; and
PGRFA of Annex I crops acquired after the coming into force of the Treaty.
The Treaty's provisions on providing facilitated access and benefit-sharing will not apply, however, to materials of non-Annex I crops such as groundnut, soyabean, and most tropical forages, acquired after the entry into force of the Treaty. Such materials would be acquired, in the case of Parties to the CBD, in accordance with the provisions of the CBD on the basis of “prior informed consent” and “mutually agreed terms”, or, in the case of parties who are not Parties to the CBD, on other bilateral terms. Importantly, this would not preclude a Centre from acquiring such materials on terms that are consistent with the Treaty and that would allow them to be distributed under the same standard MTA. The subparagraphs of Article 15 differentiate between Annex I and non-Annex I PGRFA in terms of how Centres will manage these materials.
(a) Plant genetic resources for food and agriculture listed in Annex I of this Treaty and held by the IARCs shall be made available in accordance with the provisions set out in Part IV of this Treaty.
Under this subparagraph, Centres are to make available Annex I materials, which constitute the vast majority of accessions held by Centres, in the same way as Contracting Parties to the Treaty. This means that the rules for handling most Centre-held germplasm will be exactly the same as those applicable to countries that are Contracting Parties. As noted elsewhere in this Guide, those rules as set out in the Treaty still contain certain ambiguities. Once those ambiguities are resolved for the Contracting Parties, they will automatically be resolved also for the IARCs.
(b) Plant genetic resources for food and agriculture other than those listed in Annex I of this Treaty and collected before its entry into force that are held by IARCs shall be made available in accordance with the provisions of the MTA currently in use pursuant to agreements between the IARCs and the FAO. This MTA shall be amended by the Governing Body no later than its second regular session, in consultation with the IARCs, in accordance with the relevant provisions of this Treaty, especially Articles 12 and 13, and under the following conditions:
Article 15.1(b) lays out the terms under which Centres will manage and make available non-Annex I materials collected prior to the coming into force of the Treaty.
The intention of the Treaty appears to be for Centres to manage non-Annex I materials held “in trust” by the Centres in roughly the same way as Annex I materials. There are a few differences, however, as well as some possible ambiguities in the text of this Article. The text calls for non-Annex I PGRFA collected prior to the entry into force of the Treaty to be made available in accordance with the terms of the MTA currently being used by the Centres until it is amended by the Governing Body of the Treaty to reflect the provisions of the Treaty dealing with access and benefit-sharing: the term “currently in use” means currently in use at the time of entry into force of the Treaty. The general formulation may cause some problems, in that some materials collected by Centres prior to the coming into force of the Treaty will have been acquired with conditions attached that may preclude their being treated this way. Since the coming into force of the CBD, and even earlier, Centres have collected materials on the basis of terms mutually agreed with the country in which they were collected. For most non-Annex I materials that were collected on this basis, managing them in a manner consistent with the Treaty should not be problematic. This may not be the case, however, in some cases where the materials were collected with conditions attached. Treaty negotiators clearly did not intend the language of Article 15.1(b) to negate agreements that Centres might have made with countries when collections were made. This problem may therefore need to be resolved in the agreements that Centres conclude with the Governing Body of the Treaty. These agreements may need to clarify that Centres will manage non-Annex I PGRFA according to Article 15, subject to cases where the terms under which the materials were acquired will not allow for this.
A similar situation may also arise in some cases with Annex I materials. Through the Treaty, Contracting Parties will have bound themselves to providing facilitated access to PGRFA of materials in the multilateral system. However, non-Contracting Parties will not have committed themselves to this, and Centres may not be able to renegotiate or abrogate agreements with such countries that included conditions relating to how the Centres might use or distribute these PGRFA.
Article 15.1(b) also provides that Centres will continue to use the MTA currently in use by the Centres until an amended MTA, reflecting the relevant provisions of the Treaty, is agreed upon by the Governing Body. The text of the paragraph charges the Governing Body with finalizing the amendments to the MTA no later than its second meeting.
The MTA currently in use by the Centres incorporates certain changes agreed upon by the FAO CGRFA at its Ninth Regular Session in 2002, as an interim measure, to bring it into line with some of the concepts used in the Treaty. The changes agreed by the Commission have been agreed to by all the Centres concerned and have been adopted by those Centres on 1 May 2003. Those interim changes do not yet incorporate the mandatory benefit sharing provisions of Article 13.2(d)(ii).
(i) The IARCs shall periodically inform the Governing Body about the MTAs entered into, according to a schedule to be established by the Governing Body;
Article 15.1(b)(i) again applies only to non-Annex I materials held in trust by the Centres and collected before the Treaty enters into force. The Centres are to make periodic reports to the Governing Body on the MTAs they have entered into. Such reports will presumably list the recipients of materials provided under those MTAs. Such records are already routinely kept by Centres at this time, and therefore, the obligation should be easily met. It is to be noted that the obligation on the Centres is to inform the Governing Body about the MTAs entered into by the Centres. It does not require the Centres to track subsequent transfer of the material (see discussion of Article 12.3(b)).
(ii) The Contracting Parties in whose territory the plant genetic resources for food and agriculture were collected from in situ conditions shall be provided with samples of such plant genetic resources for food and agriculture on demand, without any MTA;
Article 15.1(b)(ii) allows for the restoration of genetic resources to Parties that supplied the materials to the Centre, without resort to an MTA. A provision similar to this is found in the current agreements with FAO, with the exception that the current agreements with FAO speak of repatriation to the “country that provided such germplasm.” This may not necessarily be the country where the material was collected from in situ conditions.
This provision may give rise to practical difficulties in implementation, as it is understood that Centres may not always know where the material was collected in in situ conditions. The practical impact of this distinction between the two agreements (i.e. the “in-trust” agreements and the new agreements with the Governing Body) may not be substantial. The material will be available in any case, the question is simply whether an MTA should be required or not. Under the Treaty, “restoration” applies only to countries from which the material was collected in in situ conditions. Otherwise, access is handled under the normal rules governing access pursuant to Articles 12 and 13.
(iii) Benefits arising under the above MTA that accrue to the mechanism mentioned in Article 19.3f shall be applied, in particular, to the conservation and sustainable use of the plant genetic resources for food and agriculture in question, particularly in national and regional programmes in developing countries and countries with economies in transition, especially in Centres of diversity and the least developed countries; and
This subparagraph presupposes that the MTA that is to accompany non-Annex I material will also contain a similar provision on benefit sharing to that used in the Multilateral System, including the sharing of monetary and other benefits of commercialization under Article 13.2(d)(ii). Article 13.3 of the Treaty provides for the way in which shared benefits arising from the use of PGRFA under the Multilateral System are to be used. They are to flow primarily, directly and indirectly, to farmers in all countries, especially in developing countries and countries with economies in transition who conserve and sustainably utilize PGRFA. The benefits arising under the MTA that is to accompany non-Annex I material, are outside the Multilateral System. They therefore fall outside the general prescription of Article 13.3 and the way in which they are to be used needs to be dealt with in a specific provision.
Article 15.1(b)(iii) specifies that benefits that arise as a result of the MTA will be applied, in particular for the conservation and sustainable use of the PGRFA in question, particularly in national and regional programmes in developing countries and countries with economies in transition, especially in Centres of diversity and the least developed countries. In other words, if a germplasm recipient uses the received materials in ways that trigger the benefit-sharing provisions of the MTA, then the funds generated will be directed towards conservation and sustainable use of those particular PGRFA in developing countries and so on. This would imply that some separate record will need to be kept of the resources generated and the use to which they are put. It is to be noted that this paragraph, in using the words “in particular” indicates priorities for the use of the accrued benefits, and does not completely rule out other uses.
(iv) The IARCs shall take appropriate measures, in accordance with their capacity, to maintain effective compliance with the conditions of the MTAs, and shall promptly inform the Governing Body of cases of non-compliance.
Article 15.1(b)(iv) addresses the issue of the responsibilities of Centres for maintaining compliance with the terms of the MTAs. This paragraph, which covers only non-Annex I PGRFA, is substantially similar to the agreement already in place between FAO and the CGIAR Centres. In the current agreement with FAO, Centres are not required, for example, to monitor compliance, nor are they are required to enforce compliance, for instance, by resorting to legal action. This matter was clarified in Joint Statements made to the FAO Commission Genetic Resources for Food and Agriculture by FAO and IPGRI on behalf of the CG Centres at the time of reporting on the signature of the in trust agreements and later on the implementation of the agreements.122
Use of the word “maintain” instead of “ensure” indicates that countries do not expect Centres to guarantee compliance; they simply expect Centres to distribute materials properly, under the standard MTA, to take appropriate measures within their capabilities to bring about compliance and report cases of non-compliance when these come to the attention of the Centres. This approach has produced a very high level of compliance with the MTAs currently in use by Centres.
It should also be noted that Article 12.5 requires Contracting Parties to provide recourse procedures for non-compliance with the terms of MTAs under their national legal systems.
(c) IARCs recognize the authority of the Governing Body to provide policy guidance relating to ex situ collections held by them and subject to the provisions of this Treaty.
(d) The scientific and technical facilities in which such ex situ collections are conserved shall remain under the authority of the IARCs, which undertake to manage and administer these ex situ collections in accordance with internationally accepted standards, in particular the Genebank Standards as endorsed by the FAO Commission on Genetic Resources for Food and Agriculture.
(e) Upon request by an IARC, the Secretary shall endeavour to provide appropriate technical support.
(f) The Secretary shall have, at any time, right of access to the facilities, as well as right to inspect all activities performed therein directly related to the conservation and exchange of the material covered by this Article.
(g) If the orderly maintenance of these ex situ collections held by IARCs is impeded or threatened by whatever event, including force majeure, the Secretary, with the approval of the host country, shall assist in its evacuation or transfer, to the extent possible.
Articles 15.1(c) through (g) apply to all IARCheld materials covered by the Treaty. Each of these five paragraphs finds a precedent in the existing agreements with FAO. Indeed, the language in those agreements was used as the basis in drafting this section of the Treaty. For ease of comparison, the table below provides the relevant reference for each paragraph:
Corresponding Paragraph in FAO-CGIAR Agreements
The most obvious change in wording in the above paragraphs between the existing FAOCGIAR Agreements and the Treaty is in Article 15.1(c). The FAO-CGIAR Agreements speak of the Centres recognizing the authority of FAO and its Commission “in setting policies” for the International Network. The Treaty refers, perhaps more accurately, to the authority of the Governing Body to “provide policy guidance” relating to the ex situ collections held by the Centres and covered by the Treaty. In practice, however, it is difficult to imagine circumstances under which the Centres would not follow the guidance of the Governing Body.
In effect, however, the change between the Treaty language and the FAO-CGIAR Agreement language is largely cosmetic. Centres have indicated that they will continue to welcome the policy advice of governments, collectively expressed through the Governing Body and the FAO Commission, and will follow that guidance. In practice, the Centres have on occasions actively sought such guidance on specific issues, such as the interpretation of the phrase “germplasm and related information” in the FAO-CGIAR Agreements.
15.2 The Contracting Parties agree to provide facilitated access to plant genetic resources for food and agriculture in Annex I under the Multilateral System to IARCs of the CGIAR that have signed agreements with the Governing Body in accordance with this Treaty. Such Centres shall be included in a list held by the Secretary to be made available to the Contracting Parties on request.
Article 15.2 provides for “reciprocity” by requiring Contracting Parties to provide centres with “facilitated access” to PGRFA covered by Annex I. The phrase “facilitated access” is used in describing what Contracting Parties are required to provide to each other, and thus this paragraph provides that access will be provided to centres under the same arrangements as those for governments that are Contracting Parties to the Treaty. This will facilitate the centres' collecting work.
15.3 The material other than that listed in Annex I, which is received and conserved by IARCs after the coming into force of this Treaty, shall be available for access on terms consistent with those mutually agreed between the IARCs that receive the material and the country of origin of such resources or the country that has acquired those resources in accordance with the Convention on Biological Diversity or other applicable law.
Article 15.3 expresses existing policy within the CGIAR, namely that Centres now acquire new materials in accordance with the terms of the CBD, namely, with “prior informed consent,” and on the basis of “mutually agreed terms” or other applicable law. Subsequent distributions of such materials are in accordance with the terms agreed at the time of acquisition. This paragraph requires that Centres continue to observe this practice. This approach could also apply to those Annex I materials collected in the past under specific conditions, particularly if acquired from non-Parties to the Treaty. It is to be noted that the reference to “country of origin of such resources” differs from the wording used in the CBD. Article 15 of the CBD refers to the “country providing those resources, provided that that country is the country of origin of those resources or has acquired the genetic resources in accordance with the Convention.”
15.4 The Contracting Parties are encouraged to provide IARCs that have signed agreements with the Governing Body with access, on mutually agreed terms, to plant genetic resources for food and agriculture not listed in Annex I that are important to the programmes and activities of the IARCs.
Article 15.4 provides Centres with a tool unavailable to Contracting Parties to the Treaty. This paragraph implicitly acknowledges the importance of Centre research on non-Annex I crops. It encourages Contracting Parties to provide access to PGRFA of these crops. While some crops of importance to the CGIAR were not included in Annex I, Article 15.4. provides some support for the Centres' work on those crops. Presumably, Centres will be able to report to the Governing Body on their experiences with gaining access to non-Annex I materials, and in this way will be able further to encourage compliance with this provision.
Article 15.5 simply states that the Governing Body may establish agreements with other institutions in conformity with Article 15.
No information, however, is provided as to what constitutes a “relevant international institution”. Presumably, the wording was left intentionally broad to allow any institution with a PGRFA collection to be a party to an agreement. One such example could be the Tropical Agriculture Research and Higher Education Center (Centro Agronómico Tropical de Investigación y Enseñanza – CATIE).
119FAO (1998) The State of the World's Plant Genetic Resources for Food and Agriculture. Rome: FAO.
120Fowler, C., Smale, M. and Gaiji, S. (2001) “Unequal Exchange? Recent Transfers of Agricultural Resources and their Implications for Developing Countries,” Development Policy Review. Vol. 19, No. 2.
121The Treaty makes specific reference to materials held “in trust,” i.e., to those formally designated under agreements with FAO.
122See Report of the First Extraordinary Session of the Commission on Plant Genetic Resources, November 1994, para. 37 (the text of the first Joint Statement is reproduced in document CPGR Ex1/94/Inf. 5/Add. 1); and Progress Report on the International Network of Ex Situ Collections under the Auspices of FAO, presented to the Eighth Regular Session of the Commission on Genetic Resources for Food and Agriculture in April 1999, document CGRFA-8/99/7.
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