Article 31 – Non-Parties
The Contracting Parties shall encourage any Member of FAO or other State, not a Contracting Party to this Treaty, to accept this Treaty.
This Article is a reflection of the drafters' desire to have the Treaty have as wide an application as possible, and therefore to encourage nonparties to become Contracting Parties.
The issue of how non-Parties should be treated became controversial during the course of negotiations, particularly from the point of view of access to materials under the Multilateral System. The question was whether the Treaty should dictate the use of different, and potentially discriminatory, treatment of non-Parties. In the end, no specific provision was included in the Treaty text. In essence, this choice leaves this matter up to each individual Contracting Party. There is no provision that would require Contracting Parties to deny access to PGRFA listed in Annex I to countries that have not agreed to be bound by the Treaty. Nor is there anything that would require them to grant such access. The provisions of Article 11.3 and 11.4, which deal with decisions as to whether access should continue to be facilitated to persons that have not included their PGRFA in the Multilateral System refer only to natural and legal persons under the jurisdiction of Contracting Parties and not to non-Contracting Parties.
Article 31 of the Treaty, in dealing with non-Parties, therefore confines itself to stating that Contracting Parties are to encourage any Member of FAO or other State who is not a Party to this Treaty, to become a Party. This is intended to achieve as broad a coverage of the Treaty's provisions as possible. While the obligation to encourage non-members is mandatory, the Treaty does not specify what means are to be used.
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