Summary report, 9–13 December 1996

The Third Extraordinary Session of the Commission on Genetic Resources for Food andAgriculture (CGRFA-EX3) was held at FAO Headquarters in Rome from 9-13 December1996. During the week-long meeting, delegates focused on Farmers’ Rights, scope andaccess to genetic resources in relation to the revision of the International Undertaking(IU) on Plant Genetic Resources in harmony with the Convention on Biological Diversity(CBD). Building on the results of a two-day meeting of the Commission’s standingWorking Group, during which several countries put forward proposals, delegatesconfronted both the political and intellectual complexities of revising the InternationalUndertaking.

Although the meeting technically constituted the third formal negotiating session for therevision of the IU, CGRFA-EX3 can be characterized as a constructive pre-negotiationexercise. The meeting did not produce any new negotiated text, but it did make progresson difficult and often divisive issues. Many delegations moved beyond political posturingin order to clarify the concerns and interests that underlie their different positions. Aworking group on Farmers’ Rights allowed for the frank exchange of often conflictingviews. The G-77, the EU and the US each tabled text on Farmers’ Rights that will serveas the foundation for the Commission’s future deliberations on this issue. CGRFA-EX3also commissioned a “two-step” study setting out the various options for scope andaccess under a revised IU, and assessing the viability of these arrangements. Finally, theCommission agreed on arrangements for the continuation of its work on the IU. Inparticular, in agreeing to devote the first two days of the next Commission meeting toregional consultations, countries will be able to better consolidate their positions for thenext round of negotiations.

A BRIEF HISTORY OF THE PROCESS

Plant genetic resources (PGR) constitute perhaps the most important part of biodiversity:the variation between and among food crops; the trees that supply timber, fuel, food andfodder; and the plants that provide oil, rubber, fiber, medicinal plants, etc. PGRencompass the plants that have been carefully managed and nurtured by humans in farms,fields and forests throughout the world, as well as wild relatives of these plants. PGRprovide plants with their particular characteristics including chemical composition,nutritional value, resistance to pests and diseases, and adaptation to particularenvironments.

No country is self-sufficient in PGR. For instance, North America is completelydependent upon other regions of the world for its supply of genetic diversity for its majorfood crops; sub-Saharan Africa is approximately 87 percent dependent on other parts ofthe world. Despite this interdependence, there is asymmetry in the availability of PGR, onthe one hand, and the means to conserve them and benefit from them, on the other. It isthe relatively “gene poor” countries that possess the financial and technical resourcesnecessary to benefit from the use of PGR, most of which originate in developingcountries. It is this North-South imbalance that has been both the driving force behindand the main obstacles to efforts to secure international access agreements.

THE FAO GLOBAL SYSTEM

In 1983, the FAO established the intergovernmental Commission on Plant GeneticResources and adopted the non- binding International Undertaking on Plant GeneticResources (IU). The Commission, renamed the Commission on Genetic Resources forFood and Agriculture (CGRFA) in 1995, is currently comprised of the 149 memberStates of the FAO. The Commission and the International Undertaking constitute themain institutional components of the Global System for the Conservation and Utilizationof Plant Genetic Resources for Food and Agriculture, which also includes otherinternational instruments and technical mechanisms being developed by the FAO.

At its most recent regular session, held in June 1995, the Commission concentrated ontwo issues in particular: negotiations for the revision of the International Undertaking (thefocus of the first extraordinary session of the Commission in November 1994) andpreparations for the Leipzig Conference (the focus of a second extraordinary session ofthe Commission in April 1996).

THE INTERNATIONAL UNDERTAKING: The International Undertaking, thefirst comprehensive agreement on PGR, was established in November 1983 as FAOConference Resolution 9/83. Its objective is to ensure that plant genetic resources —especially species of present or future economic and social importance — are explored,collected, conserved, evaluated, utilized, and made available for plant breeding and otherscientific purposes. It is based on the principle that PGR should be “preserved, and to befreely available for use, for the benefit of present and future generations” as part of the“heritage of mankind.” This principle, however, was subsequently subjected to “thesovereignty of States over their plant genetic resources” (Resolution 3/91).

Although a non-binding agreement, the IU was not adopted by consensus since eightdeveloped countries formally recorded reservations. Over the years, through a series ofadditional interpretive resolutions, the IU has achieved wider acceptability. As ofDecember 1996, 111 countries had adhered to the IU, with Brazil, Canada, China, Japan,Malaysia and the US as notable exceptions.

The thirteen years since the IU’s adoption have seen heightened interest in and awarenessof the issue of biodiversity, culminating in the entry into force of the Convention onBiological Diversity in 1993. Advances in biotechnology and developments in relatedmatters concerning intellectual property rights have added urgency, and furthercomplications, to the need to further develop an international regime relating to themanagement of PGR. Countries are now looking anew at the IU as a possible vehicle forthis purpose.

In April 1993, the CGRFA considered the implications of the 1992 UN Conference onEnvironment and Development (UNCED), and the CBD in particular, for the IU.Recognizing that the CBD would play a central role in determining policy on PGR, theCGRFA agreed that the IU should be revised to be in harmony with the Convention. Todate, two sessions of the Commission included such negotiations: the First ExtraordinarySession held in November 1994 and the Sixth Regular Session held in June 1995. At thislast meeting, the Commission asked the Secretariat to prepare a “single consolidatedtext”, reflecting written submissions by countries. This Third Negotiating Draft (3ND)juxtaposes IU language with CBD language on related provisions.

SECOND EXTRAORDINARY SESSION OF THE CGRFA: The SecondExtraordinary Session of the FAO Commission on Genetic Resources for Food andAgriculture (CGRFA-EX2) was held at FAO Headquarters in Rome from 22-27 April1996. During this meeting, delegates addressed several issues in preparation for theFourth International Technical Conference on Plant Genetic Resources. These included:the first comprehensive state-of-the-world report on plant genetic resources, which wasforwarded to the Conference; and a heavily bracketed Global Plan of Action, which wasfurther consolidated by a two-day working group meeting held from 10-12 June in Rome.

ITCPGR-4: The Fourth International Technical Conference on Plant GeneticResources (ITCPGR-4), meeting in Leipzig, Germany from 17-23 June 1996, agreed onan international programme for the conservation and utilization of plant genetic resourcesfor food and agriculture (PGRFA). Representatives of 148 States adopted the LeipzigDeclaration, the Conference’s key political statement, and a Global Plan of Action(GPA), the Conference’s main substantive output. Contentious issues, includingfinancing and implementation of the GPA, technology transfer, Farmers’ Rights andaccess and benefit-sharing, were the subject of ongoing contact group consultations.Their resolution, adopted as a package by the final plenary, represented a carefulcompromise of strongly held positions. Delegates were also presented with the firstcomprehensive Report on the State of the World’s Plant Genetic Resources, and aprogress report on the revision of the International Undertaking.

ELEVENTH SESSION OF THE WORKING GROUP: The Eleventh Session ofthe Working Group (WG-11) of the CGRFA was held at FAO Headquarters from 5-6December 1996. Although WG-11 did not, as mandated by CGRFA-EX2, prepare asimplified text to serve as a basis for the Commission’s negotiations, it did address theissues of scope, access and benefit-sharing (Farmers’ Rights). Written proposals andpapers were submitted by Brazil, France, the US, Canada and the International PlantGenetic Resources Institute (IPGRI). These served as the basis for further discussions atCGRFA-EX3.

REPORT OF CGRFA-EX3

The Third Extraordinary Session of the Commission on Genetic Resources for Food andAgriculture (CGRFA-EX3) was officially opened by Commission Chair Jos M. Bolivar(Spain) who noted the spirit of compromise that prevailed during the meeting of theWorking Group that preceded CGRFA-EX3. He expressed hope that the Commissionwould take significant steps toward achieving the objectives, which are in the genuineinterest of the international community. Mr. Abdoulaye Sawadogo, Assistant Director-General of the FAO’s Agriculture Department, delivered an opening statement on behalfof the FAO Director-General. Welcoming new members to the Commission andobservers from other UN organizations, IGOs and NGOs, he stated that the major task in1997 would be to follow up Leipzig, particularly in terms of financing, implementing andmonitoring the GPA as well as making progress on the revision of the IU. Delegatesobserved a minute of silence in memory of Mr. John Suich, who had led the UKdelegation in previous meetings of the Commission.

ORGANIZATIONAL MATTERS: Delegates adopted the provisional agendaand timetable (document CGRFA-EX3/96/1 and 2), containing the following items:continuation of negotiations for the revision of the IU; report of the Eleventh Session ofthe Working Group; continuation of negotiations; and other business, including follow-upto ITCPGR-4.

In addition to Jos Bolivar, who was elected Chair of the Commission at its sixth sessionin June 1995, the Commission elected Mr. Moorosi Raditapole (Lesotho) and Ms.Kristiane Herrmann (Australia) as first and second Vice-Chairs, respectively, and Mr.Fernando Jos Marroni de Abreu (Brazil) as Rapporteur.

The Commission then addressed the Report of the Working Group before opening thefloor to formal statements in plenary, which continued for the rest of the day on Monday.The meeting then established two open-ended working groups. The Working Group onFarmers’ Rights, chaired by Mr. R. S. Paroda (India), held four sessions on Tuesday andWednesday before reporting back to plenary on Thursday. The Working Group on Scopeand Access held two sessions on Tuesday, at the end of which the Chair, Mr. Jos MiguelBolivar, established a “Friends of the Chair Contact Group” (FOC). This group met underthe chairmanship of Dr. Bryan Harvey (Canada) for three sessions on Wednesday beforereporting back to plenary on Thursday. On the basis on these plenary interventions, themeeting decided to reconvene an “expanded” FOC (on the basis of regionalrepresentation, also drawing on the original participants to ensure continuity) in parallelto plenary. This expanded Friends of the Chair Contact Group met for one session onFriday morning. Chair Harvey then presented the results of this second round ofdiscussions in plenary on Friday afternoon.

REPORT OF THE WORKING GROUP

The Report of the Eleventh Session of the Working Group of the CGRFA (CGRFA-EX-3/96/3) was presented by its Chair, Mr. R. S. Paroda (India). Paroda noted that the Reportincluded appendices containing written submissions by Brazil, France and the US. IPGRIand Canada had also made available information papers (CGRFA-EX3/96/LIM/2 andLIM/3, respectively).

Regarding scope (IU Article 3), the report noted that: there was general agreement thatthe IU should apply to PGRFA, with specific reference to food security; the scope of anymechanism for access and benefit-sharing might be narrower than the scope of the overallIU; consideration of the possible inclusion of forest genetic resources should bepostponed, until the conclusion of discussions in other fora; the scope of any agreementon access and benefit-sharing would involve resolving a number of issues, such asdetermining whether the same arrangements should be made for various classes ofgenetic resources or only apply to specific ones.

Several options were considered with respect to access (IU Article 11), and relatedbenefit-sharing, which might be provided on a multilateral basis, a bilateral basis or on amixed basis. For instance, one option provided for the Commission to establish a mechanism for access to genetic resources in accordance with national legislation andbenefit-sharing. Another option was to bring an indicative list of genetic resources thatcontribute to food security, while allowing countries to include or exclude materialaccording to agreed criteria. There was general agreement that should a list be developed,provisions should be made for countries to voluntarily designate additional materialsunder the agreement. The report noted that the expansion of intellectual property rights(IPR) had both advantages and disadvantages with respect to access and benefit-sharing.

In considering the issue of Farmers’ Rights (FR) (IU Article 12), the report noted that:according to the present IU, the concept of FR was based on recognition of the past,present and future contribution of farmers in conserving, improving and making availablePGRFA; a broader concept of FR appeared to be emerging, which may lead to an overalllegal definition; and some elements of this definition would be more appropriatelydeveloped at the national level, and some countries are developing national mechanismsto promote FR.

A number of countries commented on the report presented by the Chair. BRAZIL notedthat no general agreement was reached on either the scope of the IU or on access. Onbehalf of the African Group, ETHIOPIA, supported by ZIMBABWE and EGYPT, statedthat FR should not be regarded as a concept; it is a reality which is being implemented ina number of countries. The US, supported by IRELAND, on behalf of the EU, stated that,as this was a Chair’s report, it was not to be edited and that comments by delegates couldbe reflected in the Commission’s report. In response, INDIA noted that contentiousissues, such as the “concept” of FR, may need consideration by the Commission.

FORMAL STATEMENTS

The US expressed its commitment to making progress on the revision of the IU and thatin light of the CBD, with its clear provisions for sovereignty over natural resources andaccess on mutually agreed terms, it is necessary to examine where further multilateralrules are needed. The US supported focusing only on those resources for which there isan agreed global interest in maintaining open access. BRAZIL called for theestablishment of a facilitated access regime for PGR that constitutes the basis for humanworld food production, but noted that agreements on access and scope are dependent onprogress on the issue of FR. CHINA stated that lack of funding and technology hasaffected developing countries’ conservation and utilization of PGR, the historicfoundation of farming communities. CHINA further asserted that developed countrieshave a responsibility and an obligation to compensate the contribution of farmers sincegenetic resources are mainly held in developing countries.

CANADA underscored its report, which surveys benefits in relation to food security.Given that the CBD underscores the fair and equitable sharing of benefits through access,transfer, and by appropriate funding, its report attempts to illustrate how benefits can beshared in ways that are in keeping with the CBD. MALAYSIA underscored that the IUwas being revised in the context of a changing global economy based on free marketforces and increasing privatization, and called for benefit-sharing between those that“improve” genetic resources and those that provide genetic resources “for improvement”.MEXICO highlighted two key items with regard to the IU that required resolution —ex situ collections prior to the CBD and Farmers’ Rights — noting that althoughthis last issue is controversial, it raises important legal, political and ethical issues thatmust be addressed. Mexico concluded that benefit-sharing, which is linked to access,scope and FR, will require balancing benefits and obligations on both sides.

Noting that FR is no longer a concept but a reality, ZIMBABWE underscored theimportance of empowering women, who represent the majority of farmers in Africa.Their indigenous knowledge should be developed not through expropriation into formalR&D systems but rather through FR and benefits. COLOMBIA asserted that the revisionof the IU was part of a process designed to establish a new international order for morebalanced and fair agricultural developments, based on the recognition of indigenouspeople and FR. Any attempt to establish a free-access regime without compensationwould be in contravention rather than harmony with the CBD. EGYPT objected toseparating FR from scope and access, and urged all members to reach a joint agreementon all three issues in a fair and equitable manner.

The EU stressed the need for basic agreement on scope, access and FR as follows: withregard to scope, the IU should cover all PRGFA, with an emphasis on those resourcesthat contribute to world food security; provisions for access should be based on mutually-agreed terms that cover all material; and benefit-sharing should stress the multiplicity ofbenefits that can be shared, particularly through the use of existing mechanisms such asthe FAO Global System, CBD, UNDP, World Bank, UNEP and the Consultative Groupon International Agricultural Research (CGIAR). Expressing hope that a revised IU willbecome a protocol under the CBD, SWEDEN stated that harmonization will requireaddressing every CBD article, not just Article 15 on access. Further noting that theerosion of PGRFA is caused primarily by unsustainable farming systems, SWEDENcalled the CBD’s Third Conference of the Parties’ (COP-3) decision on agriculturalbiodiversity a “breakthrough” in intergovernmental negotiations that should guide therevision of the IU.

Noting that the Leipzig Conference would facilitate progress here, FRANCE outlined itsproposal for access according to a two-pronged approach in which parties woulddesignate, on a species-by-species basis, materials for international networks, and accessto non-designated materials would be negotiated on a case-by-case basis. VENEZUELAnoted that the implications of PGR for food security necessitated the implementation ofthe IU as soon as possible, and stated that FR must also be recognized as more than aconcept since it is also interlinked with issues of access and technology transfer.

SOUTH AFRICA described its introduction to PGR issues as an “eye-opener”,particularly since it had been isolated from the FAO for many years. Although SOUTHAFRICA had been involved with the activities of many international agriculturalorganizations, these activities have been of a technical nature. The FAO, on the otherhand, appears to be extremely politically loaded, making it difficult to follow the debateson technical issues without proper insight and prior knowledge of the political nuances,emotional and ideological sentiments and economic aspirations of the variousplayers. INDIA agreed with the interventions by developing countries, in particularMalaysia, Brazil and the African Group, and called on the Commission to carry out itswork in conformity with the decisions reached at COP-3 and the mandate of the CBD asfollows: to focus on scope and agricultural biodiversity for ensuring food security; toaddress access in bilateral and multilateral terms; and to acknowledge that FR was nolonger a concept but a reality.

GHANA supported China, Malaysia and Zimbabwe on the issue of FR, noted the lack offunding in developing countries for the sustainable use of genetic resources, and calledfor a provision in the IU that would make funds available for ex situ and insitu conservation. BOLIVIA noted that the progress made at Leipzig providedmomentum for deliberations on the revision of the IU, and that this must be done inharmony with the CBD.

PERU noted the interrelationship between the issues of scope and access and FR andthat the future work of the Commission should take into account the decisions from COP-3 and be in harmony with the objectives of the CBD.

GERMANY stated that the main objective of the Commission should be to maintain andstrengthen cooperative activities for PGRFA and sustainable benefit-sharing that areongoing at the regional and national levels. Noting the important changes in the worldeconomy, GERMANY called for the involvement of the private sector. JAPANunderscored the importance of using PGRFA as a basis for meeting the present and futureneeds for food security, and noted that the IU will become a strong tool in the “post-CBD” era. JAPAN further noted that, with regard to scope, the provisions of the CBDshould not be applied retroactively to PGR, and that FR are merely a conceptual issue andcannot be placed in the same category as Plant Breeders’ Rights (PBR), which have afirm legal IPR basis.

The CBD SECRETARIAT then presented the COP-3 decisions of particular relevance toCGRFA-EX3. The decision on agricultural biodiversity calls for the effective and speedyrevision of the IU in harmony with the CBD. While noting that the legal status of arevised IU had not yet been decided, the COP affirmed its willingness to consider adecision by the FAO Conference “that the revised International Undertaking should takethe form of a protocol.” The decision on access to genetic resources urges the rapidconclusion of the negotiation for the adaption of the IU in harmony with the CBD, inparticular providing solutions regarding access to ex situ collections not acquiredin accordance with the Convention.

ITALY’S NATIONAL ACADEMY OF SCIENCES underscored the paradox that whileknowledge of biotechnology and of groups of genes is increasing, their extinction isoccurring more rapidly. In briefing the delegates on the submission of an appeal writtenby himself and the M.S. Swaminathan Research Foundation to concerned scientiststhroughout the world (since signed by 900 scientists and experts, and presented to theWorld Food Summit), the representative urged scientists who are advisers to theirgovernments to join in this effort to recognize the importance of biodiversity for food andagriculture and to promote the principles of the CBD.

The International Union for the Protection of New Varieties of Plants (UPOV)underscored a growing list of member States who are developing countries. Outliningfarmer’s privilege legislation under the UPOV Convention, the representative stated that:while farmer’s privilege is implicit under the 1978 Act, it is specifically referred to as anoption available to member States under the 1991 Act; and member States can restrictbreeders’ rights so long as it is within “reasonable limits” in order to allow a farmer toproduce his own seed for use in the next growing season.

The Rural Advancement Fund International (RAFI), on behalf of non-industry-affiliatedNGOs, stated that the revised IU should include agriculture in its totality and shouldprovide for the most full and free exchange of germplasm possible, considering that thekey to global food security is local conservation, development and use of GR. Furtherasserting that non-adherence to the IU means no access, RAFI stated that the coreconditions for access must include FR, no IPR and benefit-sharing. VIA CAMPESINAasked the Commission to bring about a broad-based consultation process, as stated in theLeipzig report, with producers’ organizations, peasants, indigenous people and farmers atthe national, regional and international levels. Stating that such a process would allowfarmers to participate with governments in the development of implementing policies forthe rights of their peoples, VIA CAMPESINA then outlined 11 principles on which theinternational community should recognize FR.

GRAIN stated that a fundamental and integral part of FR is the right of farmers and localcommunities to fully participate in the shaping, definition and implementation of themeasures and legislation of FR at the national and international levels, as well as in thedevelopment, implementation and review of the IU.

SCOPE AND ACCESS

WORKING GROUP ON SCOPE AND ACCESS: When the Working Group onScope and Access convened on Tuesday delegates had before them: the ThirdNegotiating Draft (3ND) of the Revision of the International Undertaking on PlantGenetic Resources; the Report of the Chair of the Eleventh Session of the Working Groupof the CGRFA (WG-11 Report contained in CGRFA-EX3/96/3), including an appendixcontaining submissions by the US, France and Brazil; an informal paper presented by theEuropean Community and its member States; an information paper by Canada, “Benefitsof the Use of Genetic Resources in Agriculture” (CGRFA-EX3/96/LIM/3); and a studyby IPGRI on “Options for Access to PGR and the Equitable Sharing of Benefits Arisingfrom their Use” (CGRFA-EX3/96/LIM/2).

Although the Chair noted general agreement for his proposal, consistent withprevious CGRFA decisions on this matter — to use 3ND as a starting point fordiscussions on scope (Article 3 of the IU) and access (Article 11 of the IU) — delegatesdeliberated the order in which to address these issues. The US proposed starting with aspecific rather than general consideration of scope by addressing the scope of the IU’saccess provisions in Article 11. In so doing, delegates could determine whether the IUshould seek to cover all situations in which access to PGRFA is sought (as highlighted inthe EU paper) or only a sub-set of situations, such as those in which there is a globalinterest in open access rather than on mutually agreed terms (MAT). This would allow forconsideration of a broad access regime or a narrower one.

The EU called for a clear division of work between scope and access, and proposedstarting with the scope provisions of the IU. MALAYSIA expressed its preference forcommencing with scope, noting that IPGRI’s study set out a way to explore the definitionof scope, which could then be incorporated into legal language. BRAZIL expressedsupport for the US proposal to start with the scope of access provisions in Article 11, onthe basis that it would allow delegates to identify what type of resources they wereprepared to agree on. Reminded by the EU that it represented 15 member States, theChair stated that the WG would first consider scope.

BRAZIL stated that it could be more “flexible” in its consideration of scope if access wasaddressed first. The Chair asked whether delegates might want to reconsider theirdecision in light of a conclusion in the WG-11 Report to the effect that in order to definescope, a number of other issues, including access, would need to be decided first.

GERMANY explained that the EU distinguished between two different scopes: oneregarding the overall IU (encompassing a framework for activities such as conservationand sustainable use), which the EU wishes to be wide; the other regarding arrangementsfor access. Arguing that it would be easier to agree on the former scope, GERMANYstated that the latter should be discussed later. The US responded that for the EU’sproposal to have the desired effect, one need not have a general scope article. Indeed, theUS argued that general scope articles often raised legal questions regarding the coverageof operative provisions of agreements, and that the norm was to apply different degrees ofscope to different provisions.

Asserting that the activities under the different provisions of the IU are interlinked andthat their scopes should not differ, CANADA deplored a “retreat” to previous positionsgiven that the WG-11 discussions had been so fruitful. Emphasizing the urgency ofmoving forward, CANADA suggested first discussing scope as it applied to Article 11,with both the expectation that the scope of that article will likely apply to all other IUprovisions and the understanding that other delegations may have differing views. TheEU later agreed to first discuss access without prejudice to scope. In an attempt to movediscussion forward on access arrangements, NEW ZEALAND stated that the objectivesof the agreement could best be promoted through a network of participating institutions,based on mutually agreed terms, and recorded in appropriate contracts.

BRAZIL asserted that the first question should be whether the IU should address accessto all PGRFA or only focus on a limited group for which there is global interest inmaintaining unrestricted or facilitated access. Noting that the former approach haspreviously resulted in deadlock because not all types of PGRFA are seen by all countriesas requiring the same type of access and benefit-sharing, BRAZIL underscored theachievability of an agreement, on mutually agreed terms, on access and benefit-sharingfor a list of PGRFA that are important to world food security. CANADA called for amore ambitious agreement and challenged delegates to outline their rationale for wishingto exclude specific crops from the IU. The US stated that a list should not apply to areaswhere is agreement on unrestricted access, but should be confined to germplasm held inactive collections of international centres and national genebanks when it is acquiredprior to the entry into force of the CBD or acquired post-CBD but pre-revised IU, forwhich no conditions have been specified. ETHIOPIA, supported by MALAYSIA and theEU, stated that the IU should encompass access to all PGRFA because any list mightrestrict the future expansion of human food needs. COLOMBIA asserted that access toPGRFA would need to be accompanied by access to corresponding technology andlegally-protected material, as addressed in the CBD. Cautioning against attempts torenegotiate the basic principles underlying CBD Article 15 (access to genetic resources),MALAYSIA stated its willingness to discuss pre-CBD collections.

CANADA identified two types of scope: biological scope (e.g., covered crops) for whichdelegates had proposed either a limited list or no limitations unless justified on the basisof objection to other crops being included); and temporal scope (e.g., pre- or post-CBD).On this basis, CANADA suggested that delegates focus on language in Article 3 but inapplication to Article 11. In response to NORWAY’s objection to a restrictive list,BRAZIL explained that its criteria for inclusion in the list — world food security andinterdependence — justified clear multilateral terms of access and benefit-sharing.

Recalling CANADA’s challenge to countries to outline any objections to specific crops,the UK noted that COP-3 would not have called for the CGRFA to reach a speedyconclusion to revising the IU if Parties had deemed the issues to have been adequatelyaddressed by the CBD.

In response to GERMANY’s statement that food security was achieved mainly in the“farmer’s field”, BRAZIL noted that international agreements do not preclude countriesor regions from negotiating agreements to ensure access to promote the sustainable use ofregionally or locally important crops. He hoped this concern would be converted intofinancing the GPA’s chapter on under-utilized crops.

Noting that human consumption is not based solely on PGR, FRANCE stated the IUshould be as broad as possible, proposing that every country identify which materialwould be subject to free and unrestricted access. He further stated a proliferation ofaccess regimes, through the creation of categories at local, national and regional andinternational levels, would not facilitate access in accordance with CBD Article 15.2.

The US cited the UN Convention on the Law of the Sea (UNCLOS) as a legal precedentfor a regime that allows for the amendment of lists over time in accordance with scientificchange.

On behalf of the African Group, TANZANIA stated that access should be open to allPGRFA, but would not automatically be free and that rules of access would need to benegotiated. COLOMBIA stated that ease of access and food security should notundermine the CBD’s benefit-sharing provisions.

CANADA underscored the need to come to a multilateral agreement that will facilitateaccess for the broadest scope of crops under the terms of the CBD and in respect ofnational laws on property. In response to CANADA’s query as to whether Brazil mightbe willing to consider a longer list initially (given that delegations might have differentideas as to which crops might meet the two criteria), BRAZIL responded that they areopen to suggestions.

ARGENTINA stated that Resolution 3 of the Nairobi Final Act, which called for theharmonization of the IU in line with the CBD, underscored the promotion of sustainableagriculture, not food security. AUSTRALIA stated that although it could appreciate theapparent logistical simplicity of lists, the exclusion of pre-CBD ex situ collectionswould create a highly ambiguous situation, and called for the scope to be “all-embracing”. The US proposed adding specificity to discussions on access provisions, byasking if there be one set of rules or different sets of rules for different sets of PGRFA.GERMANY stated that the EU paper provides for a broad, flexible and multilateralsystem within which institutions and countries would designate all the PGR in thecollections, subject to exceptions. In response to BRAZIL’s query as to whether thisrepresented the final EU proposal that appeared to be more of a compilation rather than acoordination of positions, FRANCE responded that it was not yet definitive but rather aninformal paper designed to advance discussions.

On behalf of developing countries of Asia, MALAYSIA stated that if such a list wereagreed, it would be necessary to discuss conditions to facilitate multilateral access toPGR necessary for food security. TANZANIA concurred, noting that it would only bepossible for Article 15.2 to truly facilitate multilateral access if national sovereignty isrespected. Noting that the CBD’s recognition of sovereignty over natural resources doesnot grant property rights over genetic resources, CANADA stated that the UN systemallowed for national governments to exercise sovereignty while entering into multilateralagreements. In response to a similar contention by the US that agreement on multilateralrules on access could only build on Article 15’s provisions regarding mutually agreedterms, MALAYSIA maintained that the terms of access under a multilateral agreementwould need to implement Article 15. Expressing concern that terminology such as “open”and “unrestricted” could be imposed on nations in such a way as to hamper nationallegislation, TANZANIA stated that the African Group wanted to negotiate the terms ofaccess under a multilateral agreement according to CBD Article 15.

ANGOLA, on behalf of the African Group, and MALAYSIA, on behalf of thedeveloping countries of Asia, each tabled text that builds upon a pre-existing proposal fornew wording in Article 3.1 of the 3ND. While the African proposal underscores speciesof economic and social importance having actual or potential value, the Asian proposalunderscores agricultural crops of economic and social importance and having greatinterdependence among countries. Both proposals state that access to PGRFA shall besubject<W0> to national sovereignty and legislation, and linked with Farmers’ Rights,technology transfer and benefit-sharing. JAPAN objected to including these issues inarticles on scope, noting that they should be addressed in an article on objectives. Notingthat it builds upon text from the CBD, CUBA supported the text proposed by ANGOLA,and requested that it be considered as a compromise. CANADA proposed thatreformulation of Article 3.1, which makes links with elements of the IU not discussed bythe CGRFA since November 1994, be postponed until delegates had completedconsideration of Article 11.

At the beginning of the second session of the Working Group on Scope and Access, thosecountries who made submissions to the WG-11 Report outlined their proposals. Notingthat the central question regarding access is whether the IU should seek to establish acomprehensive set of rules or whether to narrow the IU provisions on access to thosegenetic resources for which there is global interest in maintaining unrestricted access, theUS stated its support for the latter option. In response to MALAYSIA’s call for a clearunderstanding of the term “unrestricted access”, the US explained that it meant “withoutconditions,” but should be applied in only in specific circumstances. CANADA,MALAYSIA and the US deliberated whether the patenting of a gene sequence from anInternational Agricultural Research Centre or the inclusion of a patented gene inaccessions in national or international collections would affect the availability of thegermplasm from which it was derived. The US expressed concern that a focus on themost difficult scenarios would ignore the significant benefits from open access to thegenetic resources of major food crops. ETHIOPIA noted a consensus among countries onthe desire for access, but also on the need for compromise so as to ensure fair terms ofaccess and benefit-sharing for all owners and users.

The UK expressed concern that the discussion on IPRs was getting into areas beyond thecompetence of the CGRFA, noting the COP-3 decision on access, which requests theCGRFA to cooperate with the WTO through its Committee on Trade and Environment inexploring the linkages between CBD Article 15 and relevant articles of the WTOagreement on Trade-Related Intellectual Property (TRIPs).

Citing a document regarding access issues for consideration in Stage II of the revision ofthe IU (CGPR/6/95/8 Supp), which notes that the CBD provides for the right of access byother Parties subject to prior informed consent (PIC) and mutually agreed terms,ANGOLA asked whether “unrestricted” meant “free”. The US maintained that theimportant point was that any benefits gained from restricting access to genetic resourcesthat are widely held all over the world, far beyond their centres of origin, are outweighedby the benefits to potential users of freely available material.The US added thataddressing certain cases in which global interest is such that access can be mutuallyagreed is not inconsistent with the CBD but rather builds upon it. COLOMBIA statedthat in several Commission background papers, unrestricted was defined as “permanentlyavailable”, but noted that such access required several conditions that are linked tobenefit-sharing. CANADA added that the 3ND emphasizes that access shall beunrestricted for “research, breeding and educational purposes” but does not refer tocommercial purposes. MALAYSIA complimented Canada for actually outlining some ofthe conditions for access and noted that conditions could also be discussed in line withCBD Article 15.2. Noting that the distinction made by Canada is inspired by patents andsui generis regimes, COLOMBIA stated another sine qua non for access,often required by access legislation, is access to information pertinent to the handling anduse of PGR and participation by the country of origin in research on these geneticresources.

FRANCE explained that although protected varieties could not be sold directly, theycould be used for research and breeding purposes, even privately, and this could be thesubject of unrestricted access. Stating that there is no reason to have a harsher accessregime for genetic resources than for PGR, FRANCE noted that although one cannotclaim rights on genetic resources, it is possible to claim them on the results of researchand then go on commercialize them. COLOMBIA asserted that the current strengtheningof intellectual property regimes can run counter to the establishment of easy access. TheUS noted that it would be closer to the CGRFA’s area of expertise if it posed the samequestions from a different angle. Assuming unrestricted meant “not subject toconditions”, the Commission could discuss categories of germplasm for which access issought and the purposes for doing so.

FRIENDS OF THE CHAIR CONTACT GROUP: At the end of the secondsession, Chair Bolivar called for the creation of a small contact group of the “Friends ofthe Chair” (FOC) to be comprised of Brazil, Colombia, Angola, Ethiopia, Tanzania,Malaysia, Japan, Canada, the US, Poland and an EC representative. The FOC would meetin order to specify conclusions in light of the discussions in the Working Group on Scopeand Access. The FOC, as initially constituted, met for three sessions under thechairmanship of Dr. Bryan Harvey (Canada), who presented the first Report of theFriends of the Chair’s Contact Group (CGRFA-EX3/96/WGSA/1) to plenary onThursday. The report outlined a list of options to be discussed in order to make progressin developing consensus text and is organized according the following questions:

• What would the objectives of/justifications for facilitating access through a multilateral agreement?
• To what genetic resources, in which locations, would such facilitated access apply? and
• How would access be facilitated?

The report also noted that several submissions to the FOC, including those made by theAfrican Group and Australia, as well as those made to WG-11 by the EU, the US, Franceand Brazil, be added to the 3ND.

PLENARY: The International Plant Genetic Resources Institute (IPGRI)summarized the major findings of “Options for Access to PGR and the Equitable Sharingof Benefits Arising from their Use” (CGRFA-EX3/96/LIM/2), a study commissioned byCGRFA on the feasibility of possible systems for the exchange of PGRFA as well as thetransaction costs likely to be incurred in the various system options. The study proposesthat a mixed multilateral/ bilateral option may be appropriate in certain circumstances, forexample to promote benefit-sharing in the event of commercialization. In assessing the“web of different systems”, the study notes that a current example of a multilateralsystem is the Consultative Group on International Agricultural Research (CGIAR). Thestudy suggests that in the absence of agreement on a multilateral system, countries willwork towards some form of multilateral exchange (e.g., regional cooperation ornetworks) due to the transaction costs of operating bilaterally.

Several delegations expressed appreciation for IPGRI’s presentation, noting that itprovided both food for thought, and a sounding board for either clarifying or articulatingtheir own positions. In the ensuing discussion, the EU stated that the IPGRI had clarifiedscope in distinguishing between PGR for food and agriculture and PGRfor pharmaceuticals. BRAZIL noted that the presentation had reinforced its understandingthat genetic resources are subject to various forms of collaboration from bilateral tomultilateral. CANADA highlighted the accommodation of bilateral arrangements withina global exchange system, and suggested that IPGRI consider the transaction costs of thevarious proposals on prior informed consent. MEXICO recommended that IPGRI providea more precise description of materials held in International Centres in order to ensuretheir availability to humankind. COLOMBIA explained that the current networks in LatinAmerica are ill-suited to a multilateral agreement, and called for new systems and a studyon the technical, legal and economic implications of exchanges between publicauthorities and the private sector. The US stated that the international community has aninterest in making existing networks work, and that it is essential to keep costs down andrules simple in devising any multilateral system.

The International Association of Plant Breeders for the Protection of Plant Varieties(ASSINSEL) underscored three key issues in the implementation of both the IU and theCBD: maintenance of and access to PGR; use of effective technologies; and protection ofintellectual property. He explained that industry’s need for high, short-term returns oninvestment meant that the private sector could not ensure adequate long-termmaintenance of PGR. He noted that industry recognized that free access did notnecessarily mean cost-free access.

GHANA underscored that genebanks continue to degenerate due to years of fruitlessnegotiations and the absence of networks in West and Central Africa. SWEDEN wasencouraged by ASSINSEL’s concern regarding genetic erosion. FRANCE noted the“goodwill” and willingness of plant breeders to participate in national conservationstrategies on PGR.

ETHIOPIA stated that countries might better evaluate the advantages and disadvantagesof various multilateral agreements if these were presented according to a “package” ofscenarios on scope and access: wide scope and unrestricted access; wide scope andrestricted access; limited scope and unrestricted access; or limited scope and restrictedaccess. The US stated that a “matrix” presenting a variety of possibilities on scope andaccess would clarify some of the benefits of open and unrestricted access and wouldallow for move forward, starting with international collections and then “broadening”from this “small” area. Noting Ethiopia’s proposal to examine the costs and benefits ofvarious options, FRANCE suggested developing a programme of work that would putfuture discussion on a new and better footing. Recognizing that the atmosphere of themeeting had improved, delegates deliberated how to proceed and eventually agreed toreconvene the FOC contact group, which would be extended to accommodate tworepresentatives from each region, also drawing on the original participants to ensurecontinuity.

On Friday morning, the FOC Chair presented the results of this second round ofdiscussions in report (CGRFA-EX3/96/WGSA/1/ Add.1) which, allowing for numerousamendments proposed by delegates during plenary discussions, served as the basis for theCommission’s decision on Scope and Access.

The report noted that the although the FOC used Ethiopia’s proposal for developing amatrix on scope and access as a basis for its deliberations, even a multi-dimensionalmatrix could not cover all important aspects, given the complexity of the issues involved.Therefore, the Commission recommended that IPGRI, in conjunction with the FAOSecretariat, carry out a study in two steps: a characterization of options on scope andaccess (to be completed by 31 January 1997 and circulated to the Commission forcomments); and a “notional assessment” of the “pros and cons” of each option as well asof their viability. The study will draw on the issues raised on scope and access inthe first report of the FOC (CGRFA-EX3/96/WGSA/1) as well as regional and countrypapers submitted to WGSA and WG-11. It was also suggested that the transaction costsof prior informed consent arrangements should also be studied. The final study will needto be completed in time to be of use to delegates in their preparations for CGRFA-7 inMay 1997.

FARMERS’ RIGHTS

The Working Group on Farmers’ Rights, chaired by Mr. R .S. Paroda, met for foursessions on Tuesday and Wednesday. In its consideration of a revision of IU Article 12on Farmers’ Rights, the Working Group had before it the Third Negotiating Draft (3ND),the WG-11 Report and its annexes, a Secretariat non-paper, and a draft submitted by theEU. The Chair emphasized that the Working Group’s task was not to revisit the entire IU,but to address the related issues that pertain to FR. He drew attention to the many legalissues involved, the relation of FR to the other Working Group’s discussion on scope andaccess, and emphasized the necessity of harmonizing the IU with the CBD.

The Working Group on Farmers’ Rights began its deliberations with a general discussionon IU Article 12. Rephrasing the FAO Legal Counsel’s equation of FR to a “bundle ofrights” as “a bundle of issues,” the US noted that FR remains ill-defined, and emphasizedthe need to give careful consideration to the terms used in defining “rights.” Reiteratingits position from Leipzig, that FR must be related to national rather than internationalactions, the US stated that the exercise of rights is nationally determined, and thatinternational law protects the rights of individuals as opposed to groups. To avoid circulardiscussion, the US stated that FR should not focus on terminology but should beaddressed within the context of the IU and, specifically Article 12. In response to aquestion posed by ZIMBABWE, the US stated that existing multilateral regimes, such asthe World Trade Organization (WTO), the World Intellectual Property Organization(WIPO) and the International Union for the Protection of New Varieties of Plants(UPOV), could protect traditional, indigenous and farmers’ knowledge.

Underscoring the fact that the CBD recognizes the role of indigenous groups and localcommunities in maintaining and developing biodiversity, ETHIOPIA, on behalf of theAfrican Group, noted that individuals form groups and that if the individual is worthprotecting under international law, then groups are worthy of even greater protection.ZIMBABWE added that in Africa indigenous knowledge has evolved throughgenerations, and these generations constitute communities. INDIA emphasized that it isonly within developed countries that individual rights are considered the only rightsworthy of protection.

Although SWEDEN stressed the special responsibility vested with the internationalcommunity concerning FR, since they were first launched in the IU, it supported the US’sinterpretation of FR as a “bundle of issues”, and proposed: a ranking of issues related toimplementation; an analysis of the legal implications of the collective rights associatedwith these issues; and identifying the most appropriate agency to address them. BRAZILidentified three measures for implementation of FR: the establishment of an internationalsui generis system to address areas not covered by UPOV and WIPO; thedevelopment of national legislation for this purpose; and an international mechanism toharmonize these national laws. Expressing its rejection of an interpretation of FR as anew fundamental human right, CANADA sought clarification on the definition of FR,and stressed the necessity of harmonization with national legislation. NORWAYcategorized FR as an extension of IPR, and stressed the need to avoid discussing legalimplications and to focus on operationalizing FR.

In the context of this debate, the FAO Legal Adviser noted that there is no precisedefinition for FR due to the difficulties in identifying the group affected. Originally, theterm “vested in the international community” was used in an effort to provide a level ofconcreteness. He noted that the revision of the IU has brought broad recognition of FR,but also uncertainty as to the proper approach for implementation. In recent years, heexplained that many strands of FR have emerged: “bundle of rights”; the use of amultilateral mechanism and fund to implement FR; the recognition of farmers’ privilege;the protection of informal innovations; sui generis systems, and compensation tofarmers for the use of PGR that they have developed. Several delegates suggested thatthis list be explored to see how FR are dealt with in each instance and how they enhancethe IU.

FRANCE noted that the rights of groups and communities were not only complex, but farexceeded the framework of the meeting. One of the principles of UN is that States, notgroups, be represented. If FR is pursued as an IPR or sui generis system, it shouldbe covered by other fora, such as WIPO. FRANCE favored any measures that wouldpromote access by farmers from the South, as it would contribute to implementing theirrights and making them partners in sustainable development. CHINA supportedinternational recognition of farmers’ historical contribution to the conservation andutilization of genetic resources, explaining that developing countries will be the majorbeneficiaries of this contribution, and that lack of financial resources and know-how indeveloping countries has ultimately affected food security.

In response to requests by SWEDEN, BRAZIL AND FRANCE that relevantorganizations participate in the discussion on FR, the WTO read passages on thecontribution of genetic material by countries and communities from a recently“unrestricted” document that outlined the WTO Secretariat’s views on the interfacebetween the CBD and the TRIPs agreement.

GAMBIA expressed surprise that delegates were raising issues concerning FR since FRwas developed initially to deal with the deficiencies in plant breeders rights andintellectual property rights. The AFRICAN GROUP reasoned that if the entire populationcan be represented on one extreme it can also be done at the other, and called for anexpression of international will to recognize the contribution of farming communities.MALAYSIA reminded the Working Group of its mandate to determine the mechanismfor multilateral action that should be taken, and suggested using the proposal to establishthe “International Fund” as a guide for determining general principles and priorities.ZIMBABWE asserted that FR are a matter of justice, whether environmental, social oreconomic issues were involved.

The UK explained that although groups can have legal identities through cooperatives,societies and other means, the danger in debating on an international level is that itemploys a top-down approach that may not be helpful to the farmers themselves.Although an enabling framework may be called for at the international level, real actionand implementation should be taken at the national level.

COLOMBIA said that the origin of the concept of FR pertains to the internationalcommunity, and therefore should be addressed internationally as well as nationally.COLOMBIA also called for a national legal framework of sui generis legislationfor the acknowledgment of FR, and strongly supported the maintenance of the farmers’privilege in IPR legislation, particularly with regard to patents. INDIA addressed thedebate of community versus individual rights by referring to the EC, which is now givena seat next to all other countries, as evidence that a group can achieve legal recognition.

AUSTRALIA determined that the major issue is how to deal with FR in a legally-bindinginstrument and, given that it was not clear that the Working Group had agreed to text inthe revised IU that would include FR, it was necessary to decide which principles wouldbe included in the revised IU.

ARTICLE 12: Following this general discussion on Farmers’ Rights, delegatesproceeded to address IU Article 12 point-by-point. In addressing the individual pointsrelating to FR, the Working Group used the 3ND as the basis for discussions. SWEDEN,supported by the US, noted the necessity of a consensus IU, and proposed a list of therelevant issues that could be used as the basis for preparations for negotiations at nextmeeting.

In discussing the title of IU Article 12, “Farmers’ Rights”, CANADA, supported byAUSTRALIA and the US, refused to commit to the language “Farmers’ Rights” until theoverall content of the article was finalized. EGYPT agreed to revisit this issue later butfelt that an article titled “Farmers’ Rights” was needed. INDIA said that the text couldremain in brackets because FR is mentioned elsewhere.

ARTICLE 12.1: The Working Group then addressed IU Article 12.1, whichrecognizes the contribution that farmers of all regions have made to the conservation anddevelopment of PGR, which constitutes the basis of plant production throughout theworld, and which forms the basis for the concept of FR. Suggestions were made by anumber of delegates concerning language and replacement text was proposed.

FRANCE stated that FR should not remain in the IU since it may be consideredambiguous and encouraged the Working Group to determine the concepts, such as “acommon heritage of humankind” and “benefit-sharing”, that lie behind FR. SWEDENnoted that the CBD introduced an alternative to FR such that if the IU is harmonized withthe CBD, there will be both a national (the sovereignty over natural resources) and aninternational (the rights of farmers) component. CANADA, stressing that while it did notcontest the importance of recognizing the contribution of farmers, asked if the creation ofa set of rights in a legally-binding treaty was appropriate since it raised questions thatcould not be addressed by a treaty. Although NORWAY agreed with the concept of FR, itnoted that its categorization as a political or legal concept must be decided by eachgovernment and, in the meantime, the language should remain in brackets. This motionwas supported by JAPAN, CHINA, the US, BRAZIL, the AFRICAN GROUP andZIMBABWE.

INDIA, supported by ZAMBIA and ALGERIA, expressed frustration at what appeared tobe a potentially watered down document. ALGERIA stressed that a mandate had beengiven to the Working Group to have preliminary discussions and that sending brackets tothe plenary would only present diversions.

ARTICLE 12.2: The WG expressed general support for the EU text regarding IUArticle 12.2, which states that FR are “vested in [the International Community], as trusteefor present and future generations of farmers, for the purpose of ensuring full benefits tofarmers, and supporting the continuation of their contributions...”. The US expressed theneed to look to other fora, such as WIPO, WTO, and UPOV. CANADA was concernedabout language that would result in a serious drain of financial resources if rights werevested nationally but funds were provided internationally. The AFRICAN GROUP notedthat although this was a replacement of international law with national law, it did notchange the fact that there are international dimensions to what the farmers do, and ifaction is needed at all levels the wording should be changed to reflect this.

ZIMBABWE stated that the IU cannot abrogate international responsibility solely tothe national governments. Both international and national law must take responsibility atthe appropriate level. Furthermore, in supporting the continuation of the contribution offarmers, it is necessary to recognize farmers’ knowledge and their ownership of it. Theportion of this knowledge that has a scientific basis should be recognized as a disciplinein its own right and should be developed at all levels.

The EU suggested using the alternative wording that it had presented in its text. NEWZEALAND noted that each country has a different perception of what a farmer is, letalone FR, and therefore it supported Articles 12.1 and 12.2 of the EU proposal withoutmodifications, noting that they reflected careful consideration of international law.SWEDEN expressed the need to harmonize the text with the CBD by adding “Farmers’Rights” and removing the words “indigenous communities.”

The US supported consideration of the EU text but added that until issues pertaining toscope and access were determined, it would be impossible to determine benefits.Although the EU text was closer to the CBD, it too has some definitional problems thatwill need to be resolved in the future. INDIA expressed its willingness to consider the EUproposal.

ARTICLE 12.3: During the third session of the WGFR, delegates discussed IUArticle 12.3, which concerns the best way to implement FR. The EU, supported by theUS and CHINA, suggested that the main expressions of FR be moved to the preamble,and that mechanisms related to monitoring be addressed in a separate article on the IU inits entirety. The AFRICAN GROUP expressed similar views, but stated that the idea of“sustainability” should be reflected in the preamble. A number of paragraphs from theSecretariat’s non-paper were proposed by delegates. However, the US reasoned that,although the language could be changed to fit the article, there were more appropriatefora for addressing IPR issues. The AFRICAN GROUP responded that these other foramay not be inclusive of all the countries, such as UPOV, and that issues important toagriculture should be addressed in the IU so that all member States can participate.BRAZIL supported the AFRICAN GROUP on IPR, suggesting that the Commission wasthe right fora to facilitate the process, although in consultation with all other relevant fora.In response to a warning by ZIMBABWE that the US should not mislead the WorkingGroup, the US reiterated its position that, “where appropriate”, these issues should beaddressed in the relevant fora that are currently negotiating legally-binding instrumentson these issues, and added that it was clear that an IPR regime could not be administeredby the FAO.

OTHER ISSUES: The Working Group revisited its discussions of a definition onFR and the Chair highlighted the Secretariat’s revised three-page paper containing thesubmissions from the Working Group. SWEDEN, supported by the US,NORWAY, the AFRICAN GROUP, ZIMBABWE and MALAYSIA, rejected thestrategy of attempting to formulate a precise legal definition of FR as too complicated,and suggested that when institutionalizing a topic in a treaty, it should be done in anoperative article, laying down the commitments. The AFRICAN GROUP, supported byZIMBABWE and MALAYSIA, added that it may be convenient to define FR in thefuture.

In resuming deliberations on IU Article 12, the Chair directed the members of theWorking Group to bring their views together, although they were not required to agree ona final view or begin negotiations. Following distribution of a Secretariat papersummarizing earlier deliberations, the Chair reopened the floor for discussion. Notingthat the Working Group was not prepared to negotiate further on IU Article 12.1, the US,supported by SWEDEN, the EU and AUSTRALIA, suggested sending the differentproposed texts to the plenary. The US added that the Working Group was still puttingideas on the table, and that these views should be compiled in a document so thatcountries could reflect and further develop their positions.

BRAZIL announced that the G-77 had prepared a consolidated proposal from developingcountries for IU Articles 12.1 and 12.2, although the AFRICAN GROUP reserved theright to revise the common text that constituted the developing countries proposal.

After the delegates discussed the G-77 proposal, FRANCE attempted to clarify theconfusion concerning the presentation to the plenary and proposed that all the texts tabledin the Working Group could replace the relevant parts of the 3ND. Although thissuggestion was supported by the US and CANADA, EGYPT said such a decision shouldbe left to the plenary. The UK, supported by MEXICO, noted that the Working Group didnot have the mandate to delete text. MEXICO also noted that the issues of FR and scopeand access are interlinked and that decision must be left to the plenary.

PLENARY: In presenting his report to plenary on Thursday, the Chair of theWorking Group on Farmers’ Rights stressed that the discussions were a pre-negotiationexercise intended to flag important issues that should be considered by the Commissionin its future deliberations. Noting that the most important outcome of the WGFR was thatalternative texts had been tabled by the EU, the US, and “developing countries”, theChair called on the Commission to determine the status of the new submissions vis--visArticle 12, as presented in 3ND. FRANCE, supported by the US, favored replacingArticles 12.1 and 12.2, as presented in 3ND, with the relevant comments made by theWG, but noted that Article 12.3 should remain. CHINA announced that a revised draft ofthe combined developing countries’ proposal was being distributed.

In response to CANADA’s disappointment over the stronger tone of the new developingcountry proposal, the AFRICAN GROUP explained that the compilation of the positionsof the developing country regions had been done quickly in an effort to be constructive,but that this process had been incomplete. They stressed that there was no new wordingadded and that the new proposal should not be interpreted as a destructive move by thedeveloping countries; it was intended to be an editorial effort.

The Commission agreed that Article 12 of 3ND would be replaced by the texts presentedin the Working Group on Farmers’ Rights. ETHIOPIA, supported by SWEDEN, stressedthe importance of consultations, particularly at the national level, in addressing FR, andrecommended that in the process of consultations, only those directly concerned — thefarming community itself and agencies that work on farmers issues — should beincluded. AUSTRALIA, supported by SWEDEN and the US, and the AFRICANGROUP suggested that WTO, WIPO, UPOV and the CBD be invited to report to futuremeetings of the Commission.

CLOSING PLENARY

The final plenary went well into Friday night as delegates deliberated the draft report ofthe meeting, as presented by the Rapporteur, Mr. Fernando Jos Marroni de Abreu(Brazil). After lengthy debate on the status of several formal statements made during themeeting, delegates agreed to append statements on behalf of the FAO Director-Generaland the CBD Secretariat in their entirety to the report, and to highlight the presentation byIPGRI, while removing reference to the ASSINSEL presentation.

On the basis of discussions in the penultimate session of the plenary, the Commissionfinalized arrangements for the next regular meeting of the Commission, scheduled forMay 1997. Following the opening session, during which the Commission would elect anextended Bureau (to allow for complete regional representation) and address otherorganizational matters, regional groups would meet throughout the remainder ofThursday and Friday in order to discuss and reach agreement on regional proposals.During the weekend, the Secretariat would compile and translate the various textsproposed, with the Bureau consolidating them, where possible.

Emphasizing the need to expedite and focus negotiations for revising the IU, countrieswere invited to make additional submissions for circulation at the next meeting. TheSecretariat will also invite the WTO, WIPO, UPOV and the CBD to transmit relevantbackground documentation, within their respective areas of competence, especiallyrelated to access and benefit-sharing with regard to PGR and agricultural biodiversity. Anumber of countries emphasized the need for countries and regions to clarify and definetheir positions, particularly with respect to scope, access and Farmers’ Rights. This couldinvolve national and regional consultations with all stakeholders, including farmers, localcommunities, women’s groups and NGOs.

On the basis of the first ad hoc expert working group on animal genetic resourcesconvened by the FAO in January 1997, which will consider the possible establishment ofan intergovernmental sectoral working group, the Commission will consider, for the firsttime, the issue of animal genetic resources. Finally, the Commission agreed that thequestion of follow-up to ITCPGR-4 and the revision of the cost estimates of the GlobalPlan of Action should be taken up by CGRFA-7.

Following the termination of interpretation services at 1:30 am, delegates continueddeliberations in English. Noting his lack of fluency in this language, Chair Bolivarinvited Vice-Chair Kristiane Herrmann (Australia) to chair the remainder of the meeting.

On behalf of Spanish-speaking countries, COLOMBIA stated that the interruption ofinterpretation services was unacceptable because it precluded equal participation indiscussions and decisions of the meeting, and called for the meeting to come to an end. Following brief consultations and a trilingual statement by FRANCE in Spanish, Frenchand English requesting that the report register its protest, the meeting resumed and theCommission adopted the report at 3:30 am on Saturday morning.

A BRIEF ANALYSIS OF THE MEETING

Although CGRFA-EX3 was officially the third negotiation session for the revision of theInternational Undertaking (IU), it was the first meeting entirely dedicated to the subject.As a result, CGRFA-EX3 reflected a pre-negotiation phase, in which delegates are stilldefining the range of issues to be addressed and identifying common areas of agreementand disagreement. Indeed, delegations displayed a marked reluctance to engage innegotiations. Several observers noted that this reluctance was symptomatic of eitherholiday distraction or “conference fatigue”, since most delegates had attended either thethird meeting of the Conference of the Parties (COP-3) for the Convention on BiologicalDiversity (CBD) in Buenos Aires or the World Food Summit in Rome only weeks before.

Others attributed their hesitance to negotiate to something more substantive: therealization that revising the IU in harmony with the Biodiversity Convention wouldrequire, as one delegate put it, “radical reform”. Those delegates who proposed importinglanguage directly from the CBD were quickly reminded that this was not a “cut andpaste” exercise.

One observer noted that the inertia of the meeting was inversely proportionate to theurgency of the need to address ex situ collections acquired prior to the entry intoforce of the CBD. The challenging nature of this issue is highlighted by the fact that CBDArticle 15.3 on access to plant genetic resources does not address post-CBD collections.One delegate interpreted this to mean that the Biodiversity Convention effectively gaveup on collections which preceded its entry into force. There was general concern forclarity on this issue — noting that the Commission could not afford to “paper over”political differences as the CBD did. While some delegates see the IU revision process asan attempt by developing countries to operationalize the benefit-sharing provisions of theCBD, others see it as an attempt by industrialized countries to revise the CBD accordingto the IU.

WORKING GROUPS

While most observers would have predicted greater progress on scope and access, andvery little on FR, in fact the reverse occurred. <W0>Many delegates expressedsurprise that a common approach on FR was reached so quickly. However, manydelegates in the Working Group on Farmers’ Rights noted that the issues of FR and scopeand access are inter-linked, and that there can be no agreement on FR withoutsimultaneous agreement on scope and access.

FARMERS’ RIGHTS: Although a few countries expressed frustration thatnothing substantive was achieved, compared to the Third Negotiating Draft (3ND), wherethere were many diverging positions, the Working Group was able to produce threeconsolidated proposals: one presented by all the developing countries; one by the EU,which had previously been unable to present a common position; and another by the US,the most vocal in its reluctance to recognize any form of Farmers’ Rights.

Overall, the Working Group’s dynamics were positive and there seemed to be anunderstanding that pre-negotiation discussions were in order. In this light, there was awillingness to explore the issues associated with FR from both national and internationalperspectives, building on understandings reached at the Leipzig Conference. Together thedelegates developed a framework that will be used as a launch pad for further discussions.

The most contentious discussion concerned the actual definition of FR. Most countriesagreed that FR has not been defined adequately by the FAO and that it is unclear what itis in fact a right to. There was also a realization that countries view the notion of FR fromdifferent perspectives based on their own legal systems’ recognition of groups versusindividuals. This is a genuine problem for many countries since recognizing Farmers’Rights may have extraordinary economic and social consequences. On the other hand,some countries perceive the recognition of groups to be a natural evolution ofinternational law. In reality, there are very few countries that have been successful atincorporating FR into domestic legislation. Many countries also disagreed on the properfora for addressing FR, including whether the FAO was the appropriate agency toadminister such a scheme.

The concept of FR was recognized with the adoption of resolutions C5/89 in 1989 andC5/91 in 1991, which provided for the implementation of FR through an internationalfund on PGR. However, with the entry into force of the CBD, the focus shifted from PGRas the “common heritage of mankind” to the concepts of benefit-sharing (Article 1) andthe sovereign rights of States over their natural resources (Article 15). The result is thatthe use of both national legislation and an international approach appears to be thedirection that the discussions on FR will take.

SCOPE AND ACCESS: Throughout deliberations in plenary, an open-ended working group and a “Friends of the Chair” contact group, delegates madepreliminary progress on outlining the various options for scope and access. Since thereare so many different access regimes around the world, both private and public, bilateraland multilateral, it is difficult to conceptualize how the system as a whole might operate.Several participants noted the absence of clarity on how the various components of asystem for the exchange of PGRFA, might link together. For example, what would be theconditions for access and benefit-sharing? Would these differ for different kinds ofPGRFA? How would benefit- sharing link to Farmers’ Rights? How would differentnational regimes, with private and public actors participate in a harmonized internationalregime? Without a vision of how these components interact, observers noted, it isdifficult for negotiators to allow room for their negotiating positions on component issuessuch as scope to shift.

Countries will not only need to understand the rationale for each others’ positions, theywill need to better evaluate their own interests. Perhaps this is why Ethiopia’s proposal todevise a scenario of options regarding scope and access, dubbed the “matrix” approach bythe US, was widely considered to be a “breakthrough” at the meeting. Appealing in itssimplicity, the proposal would allow countries to conduct a cost-benefit analysis for eachoption. As one delegate put it, once countries can calculate their interests regardingvarious access arrangements, they will be in a better position to bargain.

Solutions that provide conceptually coherent and institutionally implementabledefinitions of scope, access, benefit-sharing and Farmers’ Rights is an intellectual,political, legal and managerial challenge. Since the science and technology are evolving,countries’ negotiating positions are still politically far apart, legal issues remainunresolved and the human and financial implications of implementing any of theproposed solutions are far from clear. This proposal by IPGRI, although somewhatcontroversial, was considered by many delegates to be thought-provoking. Indeed, thepresentation by IPGRI and the ensuing discussion resembled a university seminar ratherthan an intergovernmental meeting. Their attempts to articulate positions on thesecomplex matters forced delegates to grapple with these issues, and enabled them thebetter to appreciate the complexities involved. Delegates went beyond the politicalposturing that resulted in impasse at previous meetings that addressed the IU, in order toexplore the interests and concerns that underlie their own and others’ positions.

REGIONAL PARTICIPATION

Many delegates agreed that one of the major achievements of this meeting was the way inwhich developing countries, in particular the African Group, came together to consolidatetheir positions into a coherent proposal reflecting the interests that are morespecific to their region. In contrast, many noted the apparent lack of EUcoordination. One observer commented that the EU’s request for an expanded “Friends ofthe Chair” was based on a desire for some European countries to represent themselvesdirectly as internal differences continued to persist within the region.

Another positive aspect of this meeting was near-universal country participation. Forinstance, the Secretariat explained that at the first extraordinary session of theCommission, there were more members on the US delegation than representatives of allthe African countries combined. Several participants noted that this enhancedparticipation was a reflection of the momentum of Leipzig, COP-3 and the World FoodSummit.

NEXT STEPS

It was noted that the reflective mood that prevailed during the meeting allowed delegatesto ask fundamental questions about what the IU should achieve. As a result, once actualnegotiations get underway, delegates will have a firmer foundation on which to makegreater progress. Nevertheless, efforts will need to be intensified in the lead up to COP-4in May 1998, if the Commission is to respond to COP-3’s call for the speedy andeffective completion of the revision of the IU.

Governments will need to do their homework if they are to return to the table withconcrete proposals in the next round of negotiations. Some expressed hope that asdelegates gain more technical knowledge, positions may begin to converge.

Whereas the Commission was once, as one delegate described, a “limited forum”, itsdeliberations have now sparked the interest of powerful organizations like the WTO andWIPO. In formally inviting input from these organizations at its next meeting, numerousdelegates expressed the belief that the Commission is asserting itself as a political player.The Commission’s decision to formalize links with other multilateral bodies, to facilitateintersessional work, and to dedicate the first two days of its next session to regionalconsultations all contribute to laying a solid foundation on which to launch a seriousintergovernmental negotiation process for the revision of the International Undertaking inharmony with the Convention on Biological Diversity.

THINGS TO LOOK FOR

The following is a list of related FAO meetings that will be held in the coming months.For more information, contact FAO, Viale delle Terme di Caracalla, 00100 Rome, Italy;tel.: +39(6) 52251; fax: +39(6) 52253152; Home Page: http://www.fao.org.

AD HOC OPEN-ENDED WORKING GROUP ON ANIMAL GENETICRESOURCES: This meeting will be held at FAO Headquarters in Rome from 7-9January 1997.

FAO COMMISSION ON AGRICULTURE (COAG): This meeting will be heldat FAO Headquarters in Rome from 7-11 April 1997.

SEVENTH SESSION OF THE FAO COMMISSION ON GENETIC RESOURCESFOR FOOD AND AGRICULTURE: This meeting is scheduled for May 1997 atFAO Headquarters in Rome. For additional information see http://web.icppgr.fao.org.