As in other international treaties, the preamble forms part of the treaty, but does not establish binding legal obligations. Rather, it serves to explain the motives of the negotiating States, and the basic assumptions on which the treaty is based. It also serves to express additional concerns of the negotiating States and organizations, not all of which may be fully taken up in the substantive provisions of the treaty. A short commentary is provided with respect to the paragraphs of the preamble. Many of the themes presented below will be examined in greater detail in the commentary on substantive articles of the Treaty.
The Contracting Parties,
Convinced of the special nature of plant genetic resources for food and agriculture, their distinctive features and problems needing distinctive solutions;
There are several distinctive features of PGRFA that are not reflected in other components of biodiversity:
PGRFA is actively managed by farmers;
Many components of PGRFA would not survive without human activity; local and indigenous knowledge and culture are integral parts of agricultural biodiversity;
PGRFA has, historically, spread to outside regions of origin, and large collections of this material exist outside these regions;
Many economically important farming systems are based on crop species introduced from elsewhere. This creates a high degree of interdependence between countries for the genetic resources on which our food systems are based;
As regards crop improvement and use, genetic diversity within species is at least as important as diversity between species, in particular for crop improvement purposes;
Maintaining the flow of plant genetic materials and the genetic diversity within them is essential to the work of crop improvement that will allow agriculture to respond to new environmental and economic challenges and help to ensure world food security;
The nature of the plant breeding process calls for a broad range of genetic diversity as inputs to any one successful product, implying difficulties in tracking original parentage and in calculating the extent to which any particular genetic input has been instrumental in producing the special characteristics of a new commercial variety;
Because of the degree of human management of agricultural biodiversity, its conservation in production systems is inherently linked to sustainable use –preservation through protected areas is of less relevance to cultivated genetic resources and more to the wild relatives of these crops;
While in situ (or on-farm) conservation of PGRFA remains of primary importance, much of the crop diversity is now being held ex situ in genebanks or breeders' materials, rather than on-farm.
This paragraph acknowledges that PGRFA have distinctive features and characteristics as compared with other genetic resources, and raise distinctive issues that are not satisfactorily dealt with by existing genetic resources regimes.
The wording of the paragraph follows quite closely that of Decision II/15 of the second meeting of the Conference of Parties to the CBD, which starts with the words “Recognizing the special nature of agricultural biodiversity, its distinctive features and problems needing distinctive solution”. The Nairobi Conference that adopted the CBD in adopting Resolution 3 on The Interrelationship between the CBD and the Promotion of Sustainable Agriculture “recognize[d] the need to seek solutions to outstanding matters concerning plant genetic resources within the Global System for the Conservation and Sustainable Use of Plant Genetic Resources for Food and Sustainable Agriculture, in particular (a) Access to ex situ collections not acquired in accordance with th[e] Convention; and (b) The question of farmers' rights”.
The paragraph thus sets out the need for special treatment of PGRFA, and in particular the justification for the establishment of a multilateral system for access and benefit sharing.
Alarmed by the continuing erosion of these resources;
This paragraph recognizes that PGRFA have been, and continue to be, eroded, and implies that this will have negative consequences. For example, a reduction in plant genetic resources will limit the evolutionary adjustment of agricultural systems to changing environmental and economic conditions. Moreover, farmers would not be able to spread the risk of crop failure or experiment with and refine crop varieties to suit their tastes and changing needs, including the needs of consumers.
PGRFA are essential for two main functions:
Sustainable production of food and other agricultural products, including providing the building blocks for the evolution or deliberate breeding of useful new crop varieties; and
Meeting new and unforeseen needs and conditions. The transformation of agriculture, including the rapid spread of high-yielding, widely adapted varieties, has raised concern that the diversity of traditional varieties and farmers' landraces is being lost. This concern is especially relevant in areas where diversity is concentrated and where farmers maintain not only local seed of ancestral crop populations, but also the human knowledge and behavioural practices that have shaped this diversity for generations.
The Report on the State of the World's Plant Genetic Resources for Food and Agriculture found specific examples of ongoing replacement of farmer varieties and loss of wild relatives of cultivated crops:
The Republic of South Korea referred to a study which showed that 74 percent of varieties of 14 crops being grown on particular farms in 1985 had been replaced by 1993.
China reported that nearly 10,000 wheat varieties were in use in 1949. Only 1,000 were still in use by the 1970s. China also notes losses of wild groundnut, wild rice, and an ancestor of cultivated barley.
Malaysia, Philippines and Thailand reported that local rice, maize, and fruit varieties are being replaced.
Ethiopia noted that native barley was suffering serious genetic erosion and that durum wheat is being lost.
Large-scale erosion of local varieties of native crops and crop wild relatives was noted by Andean countries. Argentina points to losses of Amaranthus and quinoa.
Uruguay stated that many landraces of vegetables and wheat had been replaced. And Costa Rica reported replacement of native varieties of maize and Phaseolus vulgaris.
Chile commented on losses of local potato varieties, as well as oats, barley, lentils, watermelon, tomato and wheat.
Cognizant that plant genetic resources for food and agriculture are a common concern of all countries, in that all countries depend very largely on plant genetic resources for food and agriculture that originated elsewhere;
Building on the CBD, this paragraph makes reference to plant genetic resources for food and agriculture as a “common concern of all countries.” Common concern implies the paramount importance of PGRFA to the international community. The change in wording from the International Undertaking on Plant Genetic Resources should be noted. The International Undertaking described plant genetic resources as “a heritage of mankind”. This was later clarified in the third agreed interpretation annexed to the International Undertaking as being subject to the sovereignty of the states over their plant genetic resources.
The paragraph emphasizes that all countries depend very largely on PGRFA that originated elsewhere. Indeed, there is much greater interdependence among countries for PGRFA than for any other kind of biodiversity. Continued agricultural progress implies the need for continued access to the global stock of PGRFA. No region can afford to be isolated, or to isolate itself, from the germplasm of other parts of the world. (On the interdependency of countries on one another's PGRFA see Box 1).
The concept of common concern is normally to be found together with the principle of national sovereignty in modern treaties. The relationship between these two principles will be examined in further detail below (see, for example, Article 5.1 and Box 14).
Acknowledging that the conservation, exploration, collection, characterization, evaluation and documentation of plant genetic resources for food and agriculture are essential in meeting the goals of the Rome Declaration on World Food Security and the World Food Summit Plan of Action and for sustainable agricultural development for this and future generations, and that the capacity of developing countries and countries with economies in transition to undertake such tasks needs urgently to be reinforced;
This paragraph emphasizes the importance of plant genetic resources, including their conservation, exploration, collection, characterization, evaluation and documentation, for world food security. The Rome Declaration on World Food Security, adopted at the World Food Summit in 1996, committed the world's leaders to an ongoing effort to eradicate hunger in all countries, with an immediate view to reducing the number of undernourished people to half their present level no later than 2015. At that time, the number of people that did not have enough food to meet their basic nutritional needs stood at over 800 million. The Rome Declaration also recognized the need for urgent action to combat the erosion of biological diversity. Paragraph (f) of Objective 2.1 of the World Food Summit Plan of Action states that governments, in partnership with all actors of civil society, and with the support of international institutions will, as appropriate, “promote access, by farmers and farming communities, to genetic resources for food and agriculture.” Paragraph (e) of Objective 3.2 provides that they will also “promote an integrated approach to conservation and sustainable utilization of PGRFA, through inter alia appropriate in situ and ex situ approaches, systematic surveying and inventorying, approaches to plant breeding which broaden the genetic base of crops, and fair and equitable sharing of benefits arising from the use of such resources”.
The paragraph also introduces elements of intergenerational equity – the relationship between past, present, and future generations with respect to the use of the common patrimony of the world's natural and cultural resources.45 The starting proposition is that each generation is simultaneously custodian and beneficiary of this common patrimony. As custodian, each generation owes certain moral obligations to future generations. These moral obligations can be transformed into legally enforceable norms, and include the duty to conserve resources, to avoid adverse impacts, and to compensate for environmental harm. As beneficiary, each generation has certain rights to this common patrimony. These rights are the obverse of the moral obligations each generation owes, as the custodian of the common patrimony, to future generations. The theory of intergenerational equity is based on three principles:
The principle of conservation of options requires each generation to con- serve the diversity of the natural and cultural resource base so that it does not unduly restrict the options available to future generations in solving their problems and satisfying their own values.
The principle of conservation of quality requires each generation to maintain the quality of the planet so that it is passed on in no worse condition than the present generation received it.
The principle of maintained access requires each generation to provide its members with equitable rights of access to the legacy from past generations and should conserve this access for future generations.
Third, this paragraph specifies that developing countries and economies in transition require specific attention. These countries often do not possess the financial resources and knowledge to properly conserve, explore, collect, characterize, evaluate, and document PGRFA. The needs of developing countries and countries with economies in transition are addressed in Article 7 (international cooperation), 8 (technical assistance), 13 (benefit sharing and capacity building) and 18 (financial resources).
The obligations of Contracting Parties with respect to the conservation, exploration, collection, characterization, evaluation and documentation of PGRFA are set out in Article 5.
Noting that the Global Plan of Action for the Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture is an internationally agreed framework for such activities;
The GPA, which was adopted by the Fourth International Conference on Plant Genetic Resources in 1996 sets a scientific and technical framework for the conservation and sustainable utilization of all PGRFA and identifies agreed priority activity areas (see Box 15). Articles 5 and 6 of the Treaty, which set out the basic obligations of Contracting Parties with respect to the conservation and sustainable use of PGRFA draw heavily on this scientific and technical framework. The importance of the GPA for the Treaty – it is listed as one of the Treaty's supporting components – is specifically recognized in Article 14 of the Treaty, and all Contracting Parties should promote its effective implementation.
Acknowledging further that plant genetic resources for food and agriculture are the raw material indispensable for crop genetic improvement, whether by means of farmers' selection, classical plant breeding or modern biotechnologies, and are essential in adapting to unpredictable environmental changes and future human needs;
PGRFA are essential “building blocks” for plant breeding programmes. They include germplasm from primary, secondary and tertiary genepools. Primary genepools include the genetic variation in the breeding population of a species and closely related species that commonly interbreed with, or can be routinely crossed with, the species. Secondary genepools include the genetic variation in the breeding populations of related species that can be crossed with the species using less usual methods, such as mentor pollen, or embryo rescue. Tertiary genepools refer to all the genetic variation in other organisms that cannot be crossed with the species. With the development of genetic engineering, it is theoretically possible to transfer genes isolated from any organism (plant, animals, virus, or bacterium) into a plant. This makes the line between the secondary and tertiary gene pools somewhat fuzzy (see Maynard, C. 1996. Forest Genetics Glossary).
The paragraph acknowledges that crop genetic improvement can be achieved by many different means: farmers' selection, classical plant breeding, or modern biotechnologies. In view of its historical importance, farmers' selection is listed first.
The paragraph re-emphasizes the element of intergenerational equity by making reference to future human needs, and stresses the importance of plant genetic resources as a raw material that can be used to adapt crops to unpredictable environmental changes. Since one cannot predict the full extent of those changes, there is a corresponding need to conserve as broad an array of biodiversity as possible (on the role of PGRFA in plant breeding, see Box 4).
Affirming that the past, present and future contributions of farmers in all regions of the world, particularly those in centres of origin and diversity, in conserving, improving and making available these resources, is the basis of Farmers' Rights;
This paragraph acknowledges the importance of the past, present and future contributions of farmers in conserving, improving and making available PGRFA, and introduces the concept of “Farmers' Rights”. The concept first entered international law via the first two agreed interpretations of the International Undertaking on Plant Genetic Resources of the Food and Agriculture Organization. Annex II to the International Undertaking, adopted by Resolution 5/89 of the FAO Conference, defined Farmers' Rights as:
“Rights arising from the past, present and future contributions of farmers in conserving, improving and making available plant genetic resources, particularly those in centres of origin/ diversity.”
As formulated in the agreed interpretations, the recognition of Farmers' Rights was linked with the recognition of Plant Breeders' Rights, and, in the view of many, balanced those more formal rights. Innovations achieved through the process of traditional farmer selection ongoing over many generations, had not hitherto been recognized or rewarded.
The paragraph presages the substantive article on Farmers' Rights in Part III (Article 9) of the Treaty.
The paragraph also acknowledges that the contributions of farmers are not evenly distributed across the planet but are instead concentrated in “centres of origin and diversity” of cultivated plants and their wild relatives, which are largely located in the tropical and subtropical regions of Africa, Asia and South America.
On the meaning of the terms “centres of origin” and “centres of diversity”, see Box 4.
Affirming also that the rights recognized in this Treaty to save, use, exchange and sell farm-saved seed and other propagating material, and to participate in decisionmaking regarding, and in the fair and equitable sharing of the benefits arising from, the use of plant genetic resources for food and agriculture, are fundamental to the realization of Farmers' Rights, as well as the promotion of Farmers' Rights at national and international levels;
The substantive provisions on Farmers' Rights are set out in Article 9 of the Treaty. This paragraph would suggest that Farmers' Rights will be realized and promoted at national and international levels by implementation of these substantive provisions.
There are, however, some differences between the substantive provisions and those set out in this paragraph.
First, the list of rights “recognized in this Treaty” differs somewhat from the list of Farmers' Rights that the Contracting Parties agree to protect and promote in Article 9. Most important, the right to save, use, exchange and sell farm-saved seed is listed on an equal footing with the other rights as being fundamental to the realization of Farmers' Rights. In Article 9, the equivalent provision on farm-saved seed is separate from the treatment of other manifestations of Farmers' Rights and is largely neutral in its effect. While Contracting Parties should take measures to protect traditional knowledge, to protect and promote the right to share equitably in benefits, and to enable participation in making decisions, Article 9 places no obligations on Contracting Parties with respect to farm-saved seeds: the treatment of the so-called farmers' privilege48 is left entirely to national decisionmakers. Article 9 thus limits itself to clarifying that the provisions of the substantive Article do not limit any rights that may be granted under national law. The preambular paragraph seems to go further than the substantive provision, and follows more closely some of the wording of the Chairman's Elements derived from the Montreux meeting of experts (see Introduction). On the other hand, the list of examples of the components of Farmers' Rights is more extensive in Article 9, which, unlike the preambular paragraph, mentions the protection of traditional knowledge.
Second, the explicit reference in the preambular paragraph to the promotion of Farmers' Rights at the international level should be viewed in the context of the substantive provisions of Article 9, which carefully refrain from any reference to Farmers' Rights at the international level. This was intended, in conformity with the wording of the Chairman's Elements derived from the Montreux meeting of experts.
Some developing countries may be considering the inclusion of a national mechanism for Farmers' Rights on their own or as part of national sui generis Plant Breeders' Rights legislation, following the Agreement on Trade- Related Aspects of Intellectual Property Rights49 (TRIPS Agreement) of the Uruguay Round of multilateral trade negotiations. Such provisions find support in this explicit reference in the preambular paragraph to the promotion of Farmers' Rights at the international as well as the national level. Farmers' Rights have already been recognized at the international level, albeit in non-legally binding instruments adopted before the adoption of the Treaty (Agenda 21 and Resolution 3 of the Nairobi Final Act).
To a certain extent, the multilateral system of benefit sharing set up under Article 13 of the Treaty, including the payments to be made under Article 13.2(d)(ii), the benefits of which are to flow primarily to farmers in all countries, can also be seen as a practical implementation of Farmers' Rights at the international level. This ties in with FAO Conference Resolution 4/89, in which the adhering states to the International Undertaking considered that “the best way to implement the concept of Farmers' Rights is to ensure the conservation, management and use of plant genetic resources, for the benefit of present and future generations of farmers. This could be achieved through appropriate means, monitored by the Commission on Plant Genetic Resources, including in particular the International Fund for Plant Genetic Resources”. This point was endorsed by FAO Conference Resolution 3/91 in the following words: “...Farmers' Rights will be implemented through an international fund on plant genetic resources which will support plant genetic conservation and utilization programmes, particularly, but not exclusively, in the developing countries”.
Recognizing that this Treaty and other international agreements relevant to this Treaty should be mutually supportive with a view to sustainable agriculture and food security;
Affirming that nothing in this Treaty shall be interpreted as implying in any way a change in the rights and obligations of the Contracting Parties under other international agreements;
Understanding that the above recital is not intended to create a hierarchy between this Treaty and other international agreements;
These three paragraphs should be viewed together. They constitute a compromise wording designed to address the question of the relationship between the Treaty and other relevant international agreements, including in particular the CBD and various World Trade Organization (WTO) trade agreements. Under the Vienna Convention on the Law of Treaties,50 later treaties between the same parties dealing with the same subject matter supersede the provisions of earlier treaties, unless wording to the contrary is included in the later treaty. The negotiators were eager to avoid this effect, while at the same time avoiding any notion of hierarchy among the various international agreements. To this end, the first of the three paragraphs specifically states that all relevant treaties should be interpreted in a mutually supportive manner that achieves the goals of the Treaty, namely, sustainable agriculture and food security. This evokes a similar provision in the preamble to the CBD dealing with the complementarity of existing international arrangements. In the Convention, however, the substance of the second paragraph is dealt with in a separate article in the main body of the Convention, Article 22.51 The Treaty paragraph does not include the exception contained in the Convention covering the situation where the exercise of the rights and obligations under existing agreements would cause serious damage or threat to biological diversity.
Aware that questions regarding the management of plant genetic resources for food and agriculture are at the meeting point between agriculture, the environment and commerce, and convinced that there should be synergy among these sectors;
This paragraph recognizes the complex relationship between PGRFA, the environment and commerce, including trade related intellectual property rights. All sectors must work together in order to be effective, both at the national and at the international level. In a sense, the paragraph highlights the essential nature of the Treaty. The Treaty is essentially an agricultural treaty, dealing with plant genetic resources and their importance for food and agriculture and eventually food security. On the other hand, the Treaty was intended to be in harmony with the CBD and the environmental framework it set up for the conservation and sustainable use of all biodiversity. The need for the Treaty to look both towards the needs of agriculture and the concerns of the environment is also reflected in particular in the wording of Article 2.1, which provides that the objectives of the Treaty will be attained by closely linking the Treaty to FAO and to the CBD.
At the national level, this paragraph also implies that close cooperation between the relevant ministries will be required in implementing the Treaty.
Aware of their responsibility to past and future generations to conserve the World's diversity of plant genetic resources for food and agriculture;
This paragraph draws on a similar provision in the preamble to the CBD. In the case of the Treaty paragraph, however, more stress in laid on the past contributions of farmers in conserving and developing PGRFA, which themselves create a responsibility on the present generation to conserve that diversity for future generations.
Recognizing that, in the exercise of their sovereign rights over their plant genetic resources for food and agriculture, states may mutually benefit from the creation of an effective multilateral system for facilitated access to a negotiated selection of these resources and for the fair and equitable sharing of the benefits arising from their use; and
First, this paragraph reaffirms the concept that Contracting Parties have sovereign rights over their PGRFA. This reflects similar wording in the preamble to the CBD and indeed in the Third Agreed Interpretation of the International Undertaking. As noted above, the notion of “sovereign rights” is normally linked to the concept of “common concern” expressed in the third preambular paragraph.Second, this paragraph introduces the concept of the multilateral system. The paragraph recognizes that all countries may benefit from the creation of a multilateral approach for plant genetic resources that are important for food security and on which all countries are interdependent. The paragraph further makes the point that this multilateral approach is not inconsistent with the CBD and the concept that States have sovereign rights over their PGRFA. Indeed, the paragraph points out that it is “in the exercise of their sovereign rights” that the Contracting Parties to the Treaty have agreed to establish a multilateral system for those plant genetic resources. By agreeing to the terms of the Treaty, countries are effectively agreeing that for access to a defined sub-category of PGRFA, as between Contracting Parties, prior informed consent will not be required for each transaction, and the terms of access and benefit sharing will not need to be negotiated bilaterally. Rather, a multilaterally determined set of mutually agreed terms will apply. By recognizing the mutual benefits Contracting Parties may derive from the multilateral system, this paragraph implicitly acknowledges that a purely bilateral approach to access and benefit sharing is not well suited for PGRFA. This is so for several reasons:
Due to movements of people and resources over the past millennia as well as to modern collecting efforts, the genetic resources of major crops are widely distributed ex situ both in genebanks and in production areas;
Agriculture in all countries depends largely on PGRFA that originated elsewhere; and
Future advances in crop improvements, which are needed for sustainable agriculture and food security, require continued access to a wide genetic base without major restrictions.
Desiring to conclude an international agreement within the framework of the Food and Agriculture Organization of the United Nations, hereinafter referred to as FAO, under Article XIV of the FAO Constitution;
Article XIV of the FAO Constitution empowers the FAO Conference to “... approve and submit to Member Nations conventions or agreements concerning questions relating to food and agriculture”. International agreements adopted under this procedure are international agreements in their own right, and once they come into force, are fully binding on their Contracting Parties. They are however adopted under the constitutional aegis of FAO and thus have constitutionally prescribed links with FAO. These include the power of the Director-General to appoint the Secretary of the Governing Body (Article 20), albeit only with the approval of the Governing Body. Article XIV agreements also historically benefit from a certain level of financial and technical support from FAO. This constitutional linkage of the Treaty with FAO acknowledges the essentially agricultural flavour of the interests addressed by the Treaty and the competence of FAO in this area. However, the Treaty stresses in Article 1 that the Treaty must also be closely linked to the CBD if it is to attain its objectives.52
45See Edith Brown Weiss, Our Rights and Obligations to Future Generations, 84 Am. J. Int'l L. 198 (1990); Edith Brown Weiss, The Planetary Trust: Conservation and Intergenerational Equity, 11 Ecology L. Q. 495 (1984). See also Gary P. Supanich, The Legal Basis of Intergenerational Responsibility: An Alternative View-The Sense of Generational Identity, 3 Y.B. Int'l Envtl. L. 94 (1992).
46De Candolle was one of the foremost botanists of the nineteenth century. His book, Origin of Cultivated
47The term “massal selection” refers to the traditional method of selecting suitable reproductive material from the best plants in a particular farm or other holding.
48The “farmers privilege” was generally enunciated under the International Convention for the Protection of New Varieties of Plants (UPOV 1991), 2 December 1961, 33 U.S.T. 2703, 815 U.N.T.S. 89, as Revised at Geneva on 10 November 1972, on 23 Ocober 1978, and on 19 March 1991.
49Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments – Results of the Uruguay Round, 33 I.L.M. 81 (1994).
50Vienna Convention on the Law of Treaties, 23 May 1969, 8 I.L.M. 679.
51Article 22 states: 1. The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause serious damage or threat to biological diversity. 2. Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea.
52Other agreements and conventions concluded under Article XIV of the FAO Constitution include: the Agreement for the Establishment of the Asia-Pacific Fishery Commission (1948), the Constitution of the International Rice Commission (1948), Agreement for the Establishment of a General Fisheries Commission for the Mediterranean (1949) [Amended text approved by FAO Council at its 113th Session], the International Plant Protection Convention (1951) [Revised text approved by FAO Conference at its 29th Session (November 1997)], the Constitution of the European Commission for the Control of Foot-and-Mouth Disease (1953), the Plant Protection Agreement for the Asia and Pacific Region (1955), the Convention Placing the International Poplar Commission within the framework of FAO (1959), the Agreement for the Establishment of an FAO Commission for Controlling the Desert Locust in South-West Asia (1963), the Agreement for the Establishment of a Commission for Controlling the Desert Locust in the Central Region (1965), Agreement for the Establishment of a Commission for Controlling the Desert Locust in North-West Africa (1970), the Agreement for the Establishment of a Regional Animal Production and Health Commission for Asia and the Pacific (1973), the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993), the Agreement for the Establishment of the Indian Ocean Tuna Commission (1993), the Agreement for the Establishment of the Regional Commission for Fisheries (RECOFI) (1999), and the Agreement for the Establishment of a Commission for Controlling the Desert Locust in the Western Region (2000).
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