Summary report, 12–14 July 2023
10th Meeting of the Ad Hoc Open ended Working Group to Enhance the Functioning of the ITPGRFA Multilateral System
Plant genetic resources for food and agriculture (PGRFA) help to increase and diversify food production and protect from pests and diseases. They also play a key role in adaptation to climate change and in evolving food production conditions. The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) established a Multilateral System (MLS) for facilitated access to a specified list of PGRFA, and monetary and non-monetary benefit-sharing from the use of these resources. The benefit-sharing component, however, did not live up to expectations, leading parties to convene an Ad Hoc Open-ended Working Group to Enhance the Functioning of the MLS in 2013. Despite significant progress made during six years of negotiations, the Treaty’s Governing Body (GB) could not reach consensus on the enhancement at its eighth session in 2019, nor did it agree on the formal continuation of deliberations. Building on a series of informal consultations, GB 9 in 2022 re-established the Working Group with a view to finalize a package for the enhancement of the MLS by GB 11 in 2025.
The tenth session of the Working Group heard updates on informal consultations held during the intersessional period and reflected on changes in the international landscape since 2019, including recent decisions on access and benefit-sharing (ABS) from the use of digital sequence information/genetic sequence data (DSI/GSD) in other international fora, and what this means for potential avenues of work.
Working Group Co-Chairs Michael Ryan (Australia) and Sunil Archak (India) sought guidance on the way forward, both in terms of process and substance, with a focus on the key issues at the heart of debates: DSI/GSD; expansion of the list of crops in Annex I of the Treaty; and the payment structure and rates for benefit-sharing. While the meeting revealed continued divergence between party positions on these issues, delegates agreed on a preliminary way forward with the draft “June 2019 package” as a starting point. This package included a draft revised Standard Material Transfer Agreement (SMTA), amendment of Annex I, and a draft resolution with implementing provisions. The Co-Chairs are now expected to reflect the Working Group’s deliberations in their checkpoint report, which will include a proposal on the advancement of negotiations. GB 10, which is scheduled to convene in November 2023, will review the report and decide on the continuation of negotiations, including their timeline and budget.
The Working Group is composed of up to 27 regional spokespersons: up to five each from Africa, Europe, Asia, and Latin America and the Caribbean (GRULAC); up to three from the Near East; and up to two each from North America and South West Pacific. Civil society, the seed industry, farmers’ organizations, and research and academia, including CGIAR, are represented by two spokespersons each. Its tenth session convened from 12-14 July 2023, at the headquarters of the Food and Agriculture Organization of the UN (FAO) in Rome, Italy.
A Brief History of the Treaty
Concluded under the auspices of the FAO, the ITPGRFA is a legally-binding instrument that targets the conservation and sustainable use of PGRFA, and fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention on Biological Diversity (CBD), for sustainable agriculture and food security. It establishes an MLS for facilitated access to a specified list of PGRFA including 35 crop genera and 29 forage species (Annex I), and institutionalizes monetary and non-monetary benefit-sharing from the utilization of these resources in the areas of commercialization, information exchange, technology transfer, and capacity building.
The Treaty was adopted on 3 November 2001 by the FAO Conference, following seven years of negotiations. It entered into force on 29 June 2004, and currently has 150 parties.
Key Turning Points
GB 1: The first session of the Treaty’s GB (June 2006, Madrid, Spain) adopted the SMTA and the Funding Strategy. The SMTA includes provisions on a benefit-sharing scheme, providing two options. First, the recipient can choose to pay 0.77% of gross sales from commercialization of new products incorporating material accessed from the MLS, if its availability to others for further research and breeding is restricted. Alternatively, the recipient can choose to pay 0.5% of gross sales on all PGRFA products of the species they accessed from the MLS, regardless of whether the products incorporate the material accessed and regardless of whether the new products are available without restriction. The GB further adopted:
- its rules of procedure, including decision making by consensus;
- financial rules with bracketed options on an indicative scale of voluntary contributions or voluntary contributions in general;
- a resolution establishing a Compliance Committee;
- the relationship agreement with the Global Crop Diversity Trust; and
- a model agreement with CGIAR and other international institutions.
GB 2: The second session of the GB (October-November 2007, Rome, Italy) addressed the implementation of the Funding Strategy, the material transfer agreement for non-Annex I crops, and sustainable use of PGRFA. The meeting also adopted a resolution on farmers’ rights, as well as a joint statement of intent for cooperation with the FAO Commission on Genetic Resources for Food and Agriculture (CGRFA).
GB 3: The third session of the GB (June 2009, Tunis, Tunisia) agreed to: a set of outcomes for implementation of the Funding Strategy, including a financial target of USD 116 million for the period July 2009 - December 2014; a resolution on the implementation of the MLS, including setting up an intersessional advisory committee on implementation issues; procedures for the Third Party Beneficiary; and a resolution on farmers’ rights.
GB 4: The fourth session of the GB (March 2011, Bali, Indonesia) adopted procedures and mechanisms on compliance, and reached consensus on the long-standing item of the financial rules of the GB. It also adopted resolutions on farmers’ rights, sustainable use, and implementation of the Funding Strategy.
GB 5: The fifth session of the GB (September 2013, Muscat, Oman) established the Ad hoc Open-ended Working Group to Enhance the Functioning of the MLS, with the mandate to develop measures to increase user-based payments and contributions to the Benefit-sharing Fund (BSF), as a priority, as well as additional measures to enhance the functioning of the MLS. GB 5 also adopted a resolution on the funding strategy for the BSF containing a list of innovative approaches to increase voluntary contributions and a work programme on sustainable use.
The Working Group met four times during the intersessional period (May 2014, December 2014, June 2015, and October 2015).
GB 6: The sixth session of the GB (October 2015, Rome, Italy) extended the mandate of the Working Group on the MLS, and requested that it, among other issues:
- elaborate a full draft revised SMTA;
- elaborate options for adapting coverage of the MLS, based on different scenarios and income projections; and
- consider issues regarding genetic information associated with material accessed from the MLS.
The meeting adopted a work programme for the Global Information System, and resolutions on a series of substantive, cooperation-related, and administrative items, with a focus on addressing the shortfall in the BSF and on strengthening the implementation of Treaty provisions on conservation and sustainable use of PGRFA on-farm, through the work programme on sustainable use and farmers’ rights.
The Working Group met three times during the intersessional period (July 2016, March 2017, and September 2017).
GB 7: The seventh session of the GB (October-November 2017, Kigali, Rwanda) extended the mandate of the Working Group on the MLS, requesting it to:
- continue revision of the SMTA;
- develop a proposal for a growth plan to attain the enhanced MLS; and
- elaborate criteria and options for possible adaptation of the coverage of the MLS.
GB 7 further established an Ad Hoc Technical Expert Group on Farmers’ Rights; reconvened the Ad Hoc Advisory Committee on the Funding Strategy and Resource Mobilization to develop the updated Funding Strategy; and decided to put DSI on the GB 8 agenda.
Working Group on the MLS: At its eighth meeting (October 2018), the Working Group continued negotiations on specific clauses of the SMTA. Its ninth meeting (June 2019) reached a tentative compromise to amend Annex I of the Treaty (list of crops in the MLS), to include all PGRFA under the management and control of parties and in the public domain, in ex situ conditions, while allowing for reasoned national exemptions for a limited number of native species. The Working Group also agreed on a package of measures, allowing for simultaneous adoption of the revised SMTA and the amendment of Annex I. Negotiations continued on the draft revised SMTA. Consensus was reached on several provisions, with DSI/GSD and rates for benefit-sharing payments remaining as the main outstanding issues, and the meeting was suspended to allow for additional time to finalize negotiations.
At the resumed ninth meeting (October 2019), the Working Group was unable to bridge positions between developed and developing countries. Working Group Co-Chairs Hans Hoogeveen (Netherlands) and Javad Mozafari (Iran) issued a compromise proposal on a package of elements, addressing benefit-sharing payment rates, benefit-sharing from DSI/GSD, and the review of the enhanced MLS, but consensus was elusive. Deep principled divergences remained, in particular regarding benefit-sharing payments from the use of DSI/GSD.
GB 8: At its eighth session (November 2019, Rome, Italy), the GB did not reach agreement on the package of measures to enhance the functioning of the MLS, nor on continuing intersessional work. GB 8 adopted a series of other resolutions, including on farmers’ rights, conservation and sustainable use of PGRFA, and the Funding Strategy. Still, as many noted with frustration, failure to enhance the MLS indicated it was time for sober contemplation on the future of the Treaty.
GB 9: At its ninth session (September 2022, New Delhi, India), the GB reestablished the Working Group on enhancing the functioning of the MLS, in a decision hailed as the main achievement of the meeting. GB 9 also addressed issues related to cooperation with the CBD, including on DSI/GSD, and finalized a set of options for encouraging, guiding, and promoting the realization of farmers’ rights.
Working Group Report
Opening the meeting on Wednesday, 12 July 2023, Working Group Co-Chair Ryan, noted strong support for enhancing the MLS, despite challenging discussions in the past. He pointed to the Co-Chairs’ proposal, saying it outlines a balanced package, and underscored the objective to finalize the enhancement of the MLS at GB 11. Co-Chair Archak highlighted the MLS is “the soul of the Treaty” and admonished delegates to make good use of this chance to enhance it.
ITPGRFA Secretary Kent Nnadozie lauded delegates’ willingness to reengage in discussions and resolve outstanding issues. He emphasized an efficient and effective MLS is key not only for the Treaty, but also for contributing to other global goals.
Organizational matters: The Working Group adopted the agenda and timetable (IT/OWG-EFMLS-10/23/2.2), with the understanding that developments in other fora would be taken up after the update by the Co-Chairs on the consultative process.
Regional statements: AFRICA pointed out that the Treaty was negotiated within seven years, while negotiations on the enhancement of the MLS have been going on for ten. He recalled the need to enhance the MLS and invited delegates to “get the job done.” ASIA considered that informal discussions were helpful in identifying commonalities and called for more physical and online meetings throughout the next biennium.
EUROPE outlined expectations for a realistic process with good balance that leads to finalizing the enhancement of the MLS at GB 11, noting the package deal discussed in June 2019 is a good starting point, and highlighting the need for collaboration with the Funding and Compliance Committees. She underscored the new momentum on DSI brought about by developments under the CBD, the World Health Organization (WHO) and the new Agreement on the Conservation and Sustainable Use of Marine Biodiversity Beyond National Jurisdiction (BBNJ), calling for policy coherence while underscoring the importance of the sector-specific approach. She said the MLS should be simple, user friendly, easy to understand, and increase legal certainty and user-based income.
GRULAC noted the importance of building trust among members, learning from past experiences. He called for focusing on process, underscoring the need for transparency and inclusiveness, and considered it premature to engage in substantive discussions at this Working Group meeting. The NEAR EAST requested logistical and financial support for their region to continue contributing to discussions on enhancing the MLS at the international, regional and subregional levels.
NORTH AMERICA highlighted developments in other fora regarding genetic resources and DSI, and stressed the need to respect the focus of the Treaty. He noted the “difficult and interesting” task ahead to decide whether it is possible to reach agreement on a package of measures on enhancing the MLS. PAPUA NEW GUINEA stated the South West Pacific region was not able to hold consultations to develop a regional position.
Update by the Co-Chairs on the Consultative Process
Co-Chair Ryan presented the Co-Chairs’ update on the consultative process (IT/OWG-EFMLS-10/23/3). He noted parties’ willingness to engage in the enhancement process and commitment to building on earlier work, ensuring early attention to key issues and considering developments in other fora.
He then shared the main take-aways on DSI, expansion of Annex I, and payment structure and rates for benefit-sharing, among others. Regarding DSI, he suggested discussions focus first on shared principles, while the potential need for a definition can be addressed, if required to finalize a package. He also highlighted developments in the international landscape, underlining the need for consultation and coordination at the international and national level.
In relation to Annex I, he noted a broad view that expansion is highly desirable to achieve the Treaty’s objectives, also highlighting that significant challenges remain on how that may be approached. On benefit-sharing, he underlined the significance of paying attention to both monetary and non-monetary benefits. He also highlighted the importance of ensuring access for a broad range of users while also keeping access costs down for those contributing to monetary benefit-sharing.
AFRICA advised careful consideration of expansion of Annex I and of the high-level segment proposed to be organized at GB 11 to celebrate agreement on enhancing the MLS. GRULAC urged for focus on the Treaty’s rationale and objective, and highlighted consensus on the need to strengthen the BSF.
The Working Group then heard a report on the informal meeting on DSI/GSD, payment rates, and other relevant aspects of the MLS enhancement (IT/OWG-EFMLS-10/23/3/Inf.1), delivered by Julian Portilla, Meridian Institute, who facilitated the meeting (30 May – 1 June 2023, Prangins, Switzerland).
Portilla noted broad recognition by participants that commercial use of MLS-derived DSI should trigger monetary benefit-sharing under the Treaty. Noting that a definition of DSI remains elusive, he presented two general views: adopting a definition more specific to plant breeding; or continuing discussions without a definition, following the lead of other instruments. Reflecting on developments in other fora, he stated that the question has changed from whether the Treaty should include DSI, to whether it could rely on the CBD to collect and distribute benefits from DSI use. He reported that most people in attendance at the informal meeting believed the Treaty should manage benefits from DSI. He added that discussions also focused on ways to engage with other instruments, and ensure harmonization and coordination.
He said that participants agreed in principle that if benefit-sharing is enhanced, expansion of Annex I can contribute significantly to fulfilling the Treaty’s objectives. He highlighted that gradual expansion is highly impractical because of the need for ratification of any amendment to the Treaty, including the Annex. He discussed options to decouple a gradual approach towards a full expansion from repeated ratification, including by removing Annex I from the Treaty text or requiring countries to establish national plans on how they will include their genetic resources in the MLS.
Regarding benefit-sharing payment models, he said that the subscription system remains the most attractive option, but some parties stressed the need for a flexible approach to access the MLS. Discussions highlighted the role that parties could play in facilitating access by paying for the subscription of national industry or partially subsidizing subscription costs. Overall, it was recognized that a diversity of funding streams would be beneficial to the BSF.
Developments in Other Relevant Fora
The Secretariat presented an overview of developments in other relevant fora (IT/OWG-EFMLS-10/23/5), including the CBD, the new legally-binding agreement on BBNJ, and negotiations under the WHO on a treaty on pandemics.
The CBD Secretariat highlighted Goal C of the Kunming-Montreal Global Biodiversity Framework, which relates to the fair and equitable benefit-sharing from genetic resources, DSI, and traditional knowledge associated with genetic resources. She also pointed to references to cooperation with other biodiversity-related conventions, and highlighted Decision 15/9 on DSI, which establishes a multilateral benefit-sharing mechanism from DSI use, including a global fund, and a time-bound process to undertake the mechanism’s development.
Co-Chair Ryan stressed the need for national-level coordination among focal points to different multilateral environmental agreements to achieve synergies at the international level, and legal certainty.
EUROPE stressed the need to maintain close contact with relevant processes, particularly the CBD. ASIA underscored the need to reflect the Treaty’s objective on food security and said the MLS should be more attractive, transparent, and workable. CANADA highlighted overlaps between the CBD and the Treaty, particularly regarding DSI. Noting the need to respect the Treaty’s objective and beneficiaries, including the farming sector, he said the CBD could potentially provide a mechanism also for PGRFA, but intense cooperation would be required.
CIVIL SOCIETY suggested building on DSI-related provisions in other fora, noting that CBD Decision 15/9 outlines issues for further consideration, including triggering points for benefit-sharing and principles of data governance. He also pointed to provisions of the BBNJ agreement that speak to the agreement’s relation to databases. FARMERS ORGANIZATIONS lamented that one of their representatives was unable to secure a visa to attend the Working Group meeting. He highlighted questions related to access to DSI, and linkages with intellectual property rights (IPRs).
Co-Chair Archak pointed out that DSI databases are not maintained by the Treaty, the CBD, or the new BBNJ agreement themselves, and emphasized the need for a procedure on engaging with these databases. He invited delegates to go beyond a general call for collaboration with relevant fora, and instead identify specific solutions. GRULAC called for a permanent dialogue between Secretariats.
NORTH AMERICA suggested the Treaty can provide input to discussions under the CBD on how to address PGRFA. The REPUBLIC OF KOREA said finding agreement on an ABS system for the use of DSI will be less complicated under the Treaty than under the CBD and the Nagoya Protocol, as the Treaty’s scope is limited to PGRFA, and purposes of access are confined to breeding, research, and training for food and agriculture. He suggested the CBD can learn from discussions under the Treaty and build on its experience with the MLS.
Co-Chairs’ Proposal on Enhancing the Functioning of the Multilateral System
Co-Chair Ryan introduced the Co-Chairs’ proposal on enhancing the functioning of the MLS (IT/OWG-EFMLS-10/23/4), noting it is grounded in the June 2019 package and sets a pathway forward both on key substantive issues and on process for further work. He emphasized recent changes in the policy landscape, and the value of informal discussions and small groups to build understanding and work on clearly defined tasks. Noting the Co-Chairs’ view that a discussion on a potential definition of DSI will not be fruitful, he urged to first discuss the principle of benefit-sharing from DSI use. He also noted the Co-Chairs’ view that establishing a mechanism under the Treaty is preferable to developing an agreement with the CBD on PGRFA-related benefits. He drew attention to two potential approaches for expanding Annex I, either through a mechanism that allows the GB to periodically include additional crops or through national plans. On benefit-sharing payments, he suggested revisiting the idea of government contributions to the BSF. He further drew attention to the need for a subscription system that is accessible and attractive to a broad range of users. He finally called for attention to coordination between the Working Group and the Compliance Committee and the Committee on the Funding Strategy and Resource Mobilization.
Co-Chair Ryan then invited delegates’ views on how to improve the Co-Chairs’ proposal to be included in the checkpoint report to GB 10. Co-Chair Archak recalled that the objective is not to engage in text-based negotiations on the proposal, but to collect input on the way forward and additional options for addressing outstanding divergences.
June 2019 Draft Package: Participants agreed that the June 2019 package was a good starting point for negotiations, with many underlining that a lot of additional work is needed. Delegates addressed the process and focus of negotiations, including whether previously agreed-on issues could be re-opened and whether proposals from the informal meeting in Prangins could be included in the Co-Chairs’ report. Delegates emphasized the importance of not losing previous progress, while maintaining the possibility to consider alternatives not previously discussed.
Proposals on the way forward: The Co-Chairs invited comments on the use of small groups, organization of a high-level segment, regional consultations, and engagement with stakeholders, drawing attention to the proposed timeline for the Working Group.
EUROPE drew attention to challenges regarding the establishment of small groups, however noting the Co-Chairs’ prerogative to convene Friends of the Co-Chairs groups. Underscoring the need for regional representativeness, AFRICA supported the convening of small groups. GRULAC preferred formal Working Group meetings and emphasized strengthened regional consultations to foster inclusivity and transparency. NORTH AMERICA welcomed virtual meeting formats. The Co-Chairs indicated their willingness to engage in other fora and regional consultations by means of virtual participation.
EUROPE welcomed the convening of a high-level segment at GB 11, noting it could contribute to “flag the seriousness” of what the Working Group is trying to achieve, increase visibility and, if needed, help reach consensus. NORTH AMERICA considered such a decision premature, noting it would “put pressure on the process.” ASIA suggested that a high-level segment should not be planned for GB 11, proposing to schedule such a segment once discussions have concluded.
On the timeline, EUROPE underscored the importance of an effective and target-oriented process towards a decision at GB 11. He welcomed the proposed timeline and its synchronicity with the CBD Working Group on DSI and the CGRFA, noting the different processes should inform each other; and called for consideration of a full draft package of measures at the 12th meeting of the Working Group.
Reflecting on discussions, Co-Chair Ryan noted: support for holding up to four Working Group meetings; strong support for regional consultations; and lack of consensus on a high-level segment. He stressed the need to clarify the elements of the June 2019 package and noted small groups could be convened as needed.
Digital Sequence Information/Genetic Sequence Data: Co-Chair Archak invited interventions on DSI and recent CBD developments. Parties offered different views on what should be the focus of discussions. GRULAC pointed out the CBD and BBNJ agreed on the principle of benefit-sharing from use of DSI, and invited parties to find creative ways to channel the benefits of the use of PGRFA, including DSI, into work under the Treaty. EUROPE also underlined that benefit-sharing from the use of DSI has been agreed in principle at the CBD, and emphasized that the proposed subscription system in the June 2019 package addresses DSI, in contrast to the single-access option.
NORTH AMERICA expressed concern over the lack of a definition of DSI, especially regarding the need for legal clarity in the SMTA. PAPUA NEW GUINEA underlined the importance for the MLS to provide access to DSI with as little financial and administrative hurdles as possible, and to enhance the capacity within developing countries to use technologies required to leverage DSI.
FARMERS ORGANIZATIONS and CIVIL SOCIETY underlined the importance of looking at the potential impacts of IPRs on DSI and on farmers’ rights and the use of their traditional knowledge. CIVIL SOCIETY further reiterated the need to develop a framework for addressing DSI, while considering the responsibilities and accountability of database holders, and ensuring that access to DSI is not hampered by patents.
ASIA, the NEAR EAST, and PAPUA NEW GUINEA called for agreeing on a workable definition of DSI, while EUROPE opposed. CIVIL SOCIETY noted that the CBD and the WHO negotiations indicate that a definition of DSI is not necessary to move forward.
Reflecting on discussions, Co-Chair Ryan drew attention to changes in the international landscape and the need to deal with DSI, noting a range of views about the need for a definition.
Amendment of Annex I: Many regions underscored that expansion of the list of crops in Annex I should be considered within the broader package of MLS enhancement, especially in conjunction with improved benefit-sharing.
EUROPE preferred discussing how progressive expansion can be achieved in different countries, and cautioned against the option of giving the GB flexibility to agree on priority crops for inclusion in Annex I, noting such a discussion would sideline all other agenda items. GRULAC stressed the need for multilateral negotiations on the list of crops. NORTH AMERICA called for a simple process, noting that expansion is important to attract users and, therefore, payments. PAPUA NEW GUINEA supported expansion of Annex I, but called for defining the scope of “all PGRFA.” She urged clarifying the objective of expansion, whether it is food security or increased contributions to the BSF, adding that in the latter case the crops added should be of interest to the seed industry.
EUROPE and GRULAC underscored the need to duly consider all options for expansion, with GRULAC drawing attention to expansion through positive or negative lists. EUROPE and NORTH AMERICA opposed reference to the definition of a common goal or vision “by 2050.” CIVIL SOCIETY noted the options for expansion can be clustered into two categories, depending on whether expansion refers to all crops or not. He also underscored the process of Annex I expansion should be tied to a review of the functioning of the MLS and the benefits it generates.
GRULAC noted countries have different views on what “all PGRFA” means, with some considering it includes crop wild relatives while others opposed such a broad scope. EUROPE said the objective is to align the scope of the MLS with that of the Treaty, referring to PGRFA under the control of parties and in ex situ collections.
NEPAL underscored the importance of the rights of farmers to their material. CIVIL SOCIETY called for clarifying the role of IPRs, noting they can pose a barrier to access. FARMERS ORGANIZATIONS lamented that farmers’ rights are not respected in many parties and underscored that farmers are not inclined to put their seeds into the MLS due to the risk of appropriation. He said the Working Group should address these problems before agreeing on an expansion.
AFRICA asked the Secretariat to compile a brief report on new insights on the functioning of the MLS. EUROPE agreed, stating that parties need a common understanding of why there was not more benefit-sharing in the past. She also called for considering the link between mandatory benefit-sharing payments and patents in the current SMTA. GRULAC reiterated the importance of mandatory payments to the BSF, which would in turn justify expansion of the Annex. Similarly, the NEAR EAST said that if it is agreed to enhance monetary benefit-sharing in a sustainable manner, then most countries of the region would agree to gradually expand the scope of Annex I. NORTH AMERICA said more information needs to be made available on what is accessible under the MLS.
CGIAR underlined that there are two rationales for expanding Annex I: including crops with demonstrated commercial value to increase monetary benefit-sharing; or including a long list of crops with no demonstrated commercial market but are important for food security. He also pointed out that the MLS is mainly used by public research organizations. FARMERS ORGANIZATIONS mentioned that most public research organizations do not commercialize new seeds, but their work is used by the seed industry, which often patents its products.
Co-Chair Ryan noted continued broad support for the expansion of Annex I in principle, adding that more discussion is needed on how to realize that.
Payment Structure and Rates: Co-Chair Ryan called for comments on the subscription system and single access option, noting potential tension between creating a simple system while attracting a diversity of users.
NORTH AMERICA stressed maintaining the single access option on the table. EUROPE and NEAR EAST expressed preference for having a subscription system only, with EUROPE noting the need to consider the expectations of genebanks and to make subscription affordable for all users. GRULAC noted growing consensus on the subscription system, adding that if rates are appropriate, the single access option is not needed.
CIVIL SOCIETY said that inclusiveness depends on good payment rates, adding that exemptions from subscription fees could be based on thresholds. He then identified challenges and uncertainties regarding the option of country contributions to the BSF. GRULAC supported considering possibilities for country contributions, drawing attention to current practice by Norway. CGIAR proposed an option of payments at the time of commercialization, noting it simplifies benefit-sharing and relieves the burden of tracking and tracing uses. NORTH AMERICA added the rates should be commercially viable.
On cooperation with the Standing Committee on the Funding Strategy and Resource Mobilization, CIVIL SOCIETY highlighted the Working Group should negotiate the payment rates, with its work in turn informing the Committee’s work on the funding target.
Summarizing the discussions, Co-Chair Ryan noted strong support for the subscription system, recognizing that thresholds or exemptions are critical for its attractiveness and effectiveness. He said views are mixed on the single access option, largely because of complexity-related concerns and interaction with DSI.
Other SMTA Provisions: EUROPE and GRULAC reiterated their opposition to setting up small groups at this point, with GRULAC emphasizing the need for continued negotiations within the Working Group before turning to legal experts.
CGIAR delineated that in some food security-related cases, recipients want to release material in the form they received it, but have to pass through intermediary organizations to produce a large enough quantity of disease-free material, which is a commercial service. He noted this form of use is not currently anticipated within the scope of the SMTA and called for addressing this in the revision process. Responding to Co-Chair Archak, he clarified, for example, this relates to groundnuts, bananas, and cassava. PAPUA NEW GUINEA confirmed such direct release is common practice in some countries, underscoring the need for legal certainty.
CIVIL SOCIETY called for clarifying IPR-related provisions of the SMTA, with FARMERS ORGANIZATIONS querying whether they cover DSI. ASIA noted the SMTA currently only covers physical material and called for reflecting on a definition of DSI and its coverage in the SMTA. JAPAN considered that DSI is information, not material, and thus lies outside of the scope of the Treaty and should not be included in the SMTA. AFRICA underscored that “information cannot be created out of nowhere” and DSI comes from genetic resources, and invited delegates to build on the advances achieved under the CBD. The NEAR EAST called for clarifying the scope of DSI within the Treaty and including DSI in the SMTA. CIVIL SOCIETY suggested learning from other fora’s approaches to dealing with the material/information question, pointing to the WHO’s SMTA and its work on developing a database and a data use agreement. The SEED INDUSTRY cautioned against different forms of benefit-sharing for genetic resources and DSI, saying that this would impose additional costs for research and development.
NORTH AMERICA reiterated opposition to mandatory monetary benefit-sharing, noting benefit-sharing under the subscription system should be voluntary. If parties have a different understanding, he said, there may not be a point in continuing the negotiations.
EUROPE called for addressing the content of resolutions to be adopted at GB 11, including enabling elements, such as trust-building measures, and DSI-related matters that might be best addressed in a resolution rather than the SMTA.
Preparations for the 10th Session of the Governing Body
The Co-Chairs asked for comments, including on the Working Group’s programme of work and budget. They clarified that two reports will be submitted to GB 10: the report of the 10th meeting of the Working Group, and their checkpoint report, which will outline progress over the past biennium and include their revised proposal. Following a question from the REPUBLIC OF KOREA, the Co-Chairs clarified that using the June 2019 package as a “starting point” meant that in drafting their proposal they will be explicit on where they are following the package or deviating from it.
EUROPE suggested that the Co-Chairs report on progress and ask GB 10 to endorse their proposed way forward and mandate the Working Group to start formal negotiations. NORTH AMERICA noted that GB 10 must take a decision on whether negotiations should begin or not. He further asked for an update on changes to the functioning of the MLS and the flow of benefits. He said that the GB needs to address whether the Treaty includes DSI and, if so, elaborate on the specific needs of such a system, keeping in mind the need for a simple system and close coordination with work under the CBD. GRULAC, AFRICA, the NEAR EAST, and ASIA emphasized the importance of regional consultations and asked for budgetary support.
Informal Exchange of Views
On Thursday, 13 July 2023, delegates held an informal exchange of views under Chatham House rules on options for expansion of Annex I. Co-Chair Ryan provided an overview of relevant elements of the June 2019 package, including:
- expansion of Annex I through an amendment to the Treaty, thus requiring ratification;
- possibility for parties to make reasoned exemptions for a limited number of native species;
- elements related to the BSF, such as the privileged flow of BSF funds to parties that have ratified the amendment and the exclusion of exempted species from funding; and
- elements related to progress review, such as regular reporting on ratifications.
Delegates drew attention to the envisaged relationship between the revised SMTA and the amendment of Annex I, bridged through a GB resolution, noting the subscription system of the SMTA would be expected to be immediately operational to generate benefits, while ratification and entry into force of the expanded Annex I would require time.
They addressed practical and legal complexities related to the Treaty’s amendment and ratification, including difficulties that could be encountered by national parliaments, and the need for awareness and incentives to foster swift ratification. They recalled that two-thirds of parties need to ratify the amendment for it to enter into force (ITPGRFA Article 23.4) and highlighted challenges regarding the potential operation of two different versions of the Annex at the same time, including with regard to accession to the Treaty by new parties, pointing to the relevance of the Vienna Convention on the Law of the Treaties.
A lengthy discussion took place about finding a balance between facilitating exchanges and access to PGRFA, while also ensuring benefits flow back to support conservation and sustainable use. Some queried whether the current system does indeed contribute to conservation, while others asked for parties not to discount that some benefit-sharing has occurred, albeit through voluntary contributions. In response, one participant asked how much additional benefits would flow into the BSF if contributions became mandatory, reiterating the importance of finding solutions to make the Treaty sustainable in the future. Some participants highlighted the importance of considering farmers’ rights and IPRs. Reflecting on discussions, the Co-Chairs recognized the importance for the system to provide confidence to users by addressing concerns of availability, as well as to providers by increasing the flow of benefits.
One delegate noted that certain CBD parties only agreed to the decision on DSI as part of a package deal to reach agreement on the GBF. Highlighting the importance of expert knowledge, he said IPR-related questions are best addressed under the World Intellectual Property Organization.
Delegates then reflected on the attractiveness of the subscription system and the single access option, noting this relates to balancing their respective payment rates with the varying certainty on the need for payment as well as different payment timelines. One participant underscored that a number of companies signed a declaration signifying their willingness to subscribe to the system. Several participants converged on noting the single access option should be kept for the time being as “an insurance,” indicating that agreement on rates and thresholds for small companies as well as free subscriptions for some institutions could unlock agreement on retaining only the subscription system. Delegates also emphasized the challenge of adapting the single access option to DSI.
Adoption of the Report
On Friday, 14 July 2023, Co-Chair Ryan invited comments on the draft report of the meeting.
On the adoption of the agenda and organization of work, GRULAC called for specifying that the item on developments in other relevant fora was taken up before the discussion on the Co-Chairs’ proposal on enhancing the functioning of the MLS, highlighting this order should be followed at future meetings.
NORTH AMERICA proposed noting that it was clearly stated that the outcomes of this meeting should provide GB 10 with the necessary information to decide whether the Working Group should continue to meet. Co-Chair Ryan suggested, and delegates agreed, to reflect wording from the relevant GB 9 resolution to the effect that Working Group members welcomed the opportunity to provide advice to the Co-Chairs on process and substance to inform further development of the Co-Chairs’ proposal and checkpoint report to the GB on progress and for any further guidance regarding continuation of the process.
On the consultative process, CIVIL SOCIETY suggested reflecting stakeholders’ interest in participating in regional consultations. Noting regional consultations are organized by parties, Co-Chair Ryan said the Co-Chairs would pass this information on to them, but that the statement would not be included in the report as it was not specifically echoed by a party during the meeting.
Delegates engaged in a lengthy debate over a reference to a call for submissions on capacity-building needs for accessing and using DSI/GSD, formulated in GB Resolution 16/2022. Responding to NORTH AMERICA, Co-Chair Ryan clarified it was a stakeholder group who reminded delegates of this call for submissions. Seeing as the statement was not echoed by a party, NORTH AMERICA underscored it should not be incorporated in the report. Delegates converged on the Working Group noting the importance of capacity building for accessing and using DSI/GSD, and thanking the Secretariat and the Co-Chairs for making relevant information available.
A lengthy discussion took place over reference made to the elements of the June 2019 package, including a revised SMTA, a proposal for expansion of Annex I, and a draft resolution with implementing provisions, and where the three key issues of DSI, amendment of Annex I, and payment structure and rates fit in. Co-Chair Ryan clarified that the June 2019 package provides the broad structure for discussions, while the three key issues point to particular topics needing more work, and are reflected in various parts of the package, for instance payment rates are largely addressed in the revised SMTA.
EUROPE proposed making explicit that the timeline of the Working Group should be ambitious, and that the Working Group should consider a full draft package of measures at its twelfth meeting.
Participants also discussed at length the possibility of holding virtual meetings, with NORTH AMERICA suggesting the report mention them as an option, and GRULAC emphasizing that formal meetings remain in-person.
NORTH AMERICA called for specifying the Working Group discussed “the possibility of” convening of a high-level segment at GB 11. They also suggested, and delegates agreed, to point to agreement in other relevant fora that benefits arising from the use of DSI/GSD “on genetic resources within their respective scopes and mandates” should be shared fairly and equitably.
FARMERS ORGANIZATIONS, CIVIL SOCIETY, and NORTH AMERICA called for adding references to: exploring the link between DSI and IPRs; addressing database accountability; and reflecting the range of views expressed on benefit-sharing from the use of DSI/GSD, respectively. With the Co-Chairs noting there are other gaps in the June 2019 package related to DSI/GSD, delegates ultimately refrained from any additions. Co-Chair Ryan indicated the Co-Chairs will reflect on all points made during the meeting, including those not specifically captured in the meeting report.
At the suggestion of GRULAC, delegates agreed that the Working Group expressed broad support, in principle, for the expansion of Annex I while underscoring the interlinkage of all measures within the package, “in particular with the aim of increasing user-based income to the BSF in a sustainable and predictable long-term manner.”
NORTH AMERICA called for specifying that the need to maintain the single access option was expressed by some members. With EUROPE underscoring that some expressed concerns with the option, delegates agreed to note that a range of views were expressed on the matter.
NORTH AMERICA proposed noting a suggestion was brought up to consider other uses of MLS material. Co-Chair Ryan cautioned this would require an amendment to the Treaty and EUROPE preferred not to insert such specific comments in the report. The suggestion was withdrawn.
Delegates had a lengthy debate on how to refer to the issues that require early attention. GRULAC and EUROPE suggested clarifying that discussions on payment structure and rates aim at enhanced benefit-sharing. Emphasizing the need for balance, NORTH AMERICA noted that the availability of material also constitutes a benefit. EUROPE also proposed to remove references to “hotspots” and rather refer to issues requiring early attention, noting the term “hotspots” may be confusing to non-Working Group members. Delegates converged on identifying DSI/GSD, expansion of Annex I, and structure and rates for monetary benefit-sharing payment as requiring early attention.
With these and other minor amendments, delegates adopted the meeting report.
Closure of the Meeting
In closing statements, regions expressed their appreciation to the Co-Chairs and the Secretariat for their work and commitment. GRULAC expressed optimism and confidence in the process. Recognizing that “multilateralism is never easy” he stressed the importance of parties coming together to find common ground. AFRICA called upon delegates to exercise flexibility and listen to the “small voices” within the process, underlining that it is in everybody’s interest to uplift the image of the Treaty.
Yasmina El Bahloul (Morocco), GB 10 Chair, highlighted the enriching discussions on legal and policy matters, noting that issues have evolved over time. ITPGRFA Secretary Kent Nnadozie looked forward to a celebratory conclusion of the negotiations at GB 11, noting that it would be a significant milestone for the Treaty.
Co-Chair Ryan expressed gratitude for everyone’s constructive spirit and contributions. Co-Chair Archak assured participants that the Co-Chairs will include all points discussed over the days into their checkpoint report and proposal. Underlining the importance of documentation of multilateral negotiations, he thanked the Earth Negotiations Bulletin for capturing what is taking place within negotiating rooms and sharing developments with the world.
The meeting closed at 5:30 pm.
A Brief Analysis of the Meeting
Agricultural development is based on exchanges of plant genetic resources for food and agriculture (PGRFA). Farmers have been exchanging seeds since the beginning of time, creating what we now call agricultural biodiversity. Researchers and plant breeders have used farmers’ varieties to develop the crops that constitute the basis of commercial food production. A complex international framework governs agricultural research and development, which includes often contradictory rules addressing biodiversity conservation, farmers’ rights, intellectual property rights (IPRs), and access and benefit-sharing (ABS) norms.
The International Treaty of Plant Genetic Resources for Food and Agriculture (ITPGRFA) is a centerpiece of this normative puzzle. Its Multilateral System (MLS) of ABS regulates exchanges of PGRFA listed in Annex I of the Treaty, with the goal of sustainable agriculture and global food security. Access to such PGRFA is facilitated for research, breeding, and training purposes, to enable continued agricultural development and resilient food production in the face of changing global conditions. Fair and equitable benefit-sharing is institutionalized to reward farmers for their PGRFA stewardship, enable sustainable practices, and inject justice in a sector increasingly characterized by market concentration and corporate domination.
For various reasons however, the benefit-sharing component of the MLS has not lived up to the expectations of its drafters. The Treaty’s Benefit-sharing Fund (BSF) operated mainly on the basis of countries’ voluntary contributions. The Treaty’s System, operating through a Standard Material Transfer Agreement (SMTA), showed limited potential to generate the envisaged payments from its users, which would then be redistributed to benefit farmers in the developing world. Negotiations to enhance the functioning of the MLS were thus initiated in 2013 to develop measures to increase user-based payments and contributions to the BSF, as well as enhance the functioning of the MLS through the potential expansion of the list of crops covered in Annex I. However, these negotiations stopped abruptly in 2019, with disagreements focusing on benefit-sharing from the use of digital sequence information (DSI) and benefit-sharing payment rates.
The ninth meeting of the ITPGRFA Governing Body (GB 9), held in September 2022, in New Delhi, India, decided to reconvene the Working Group and renew efforts to reach agreement on enhancing the MLS. This meeting in Rome—the tenth meeting since the beginning of negotiations—marked the resumption of negotiations.
This brief analysis will provide a snapshot of the state of play when negotiations collapsed in 2019, highlight the changes in the international policy landscape since then, and illustrate some hopes and challenges for the road ahead.
Where we left off
With GB 10 only a few months away, deliberations in Rome focused on charting out the structure and focus of negotiations. The Working Group agreed to use the “June 2019 package” as a starting point. The 2019 package bundles the significant amount of work achieved in the first block of negotiations, from 2013 to 2019, on three main areas: revision of the SMTA; expansion of the list of crops in Annex I; and implementation measures through a GB resolution.
Discussions on the revision of the SMTA, the contract through which all PGRFA transfers in the MLS take place, moved towards development of a subscription system. The subscription system would guarantee upfront benefit-sharing payments while ensuring access to PGRFA in the MLS. This would nullify the need for tracking and tracing of PGRFA transfers and guarantee legal certainty, while ensuring the predictability and sustainability of benefit-sharing flows to the Treaty system. Some delegates, however, insisted on maintaining a “single access” option, meaning the possibility for a one-off access to MLS material without subscription. They argued that different access options would attract a diversity of users. Others considered that the availability of a single access option would be a barrier to increased use of the subscription system. On Annex I, the Working Group reached tentative compromise in 2019 to amend Annex I to cover “all” PGRFA under the management and control of parties and in the public domain, in ex situ conditions, while allowing for reasoned national exemptions regarding a limited number of native species. Expansion of Annex I and revision of the SMTA to increase benefit-sharing flows have been historically seen as the two sides of the MLS enhancement. Developed countries with significant research and development capacities push for expansion of the Annex, to ensure uninhibited access to a broad pool of crops. Developing countries prioritize improved benefit-sharing flows, arguing that PGRFA outside Annex I would fall under the terms of the CBD’s Nagoya Protocol on ABS and hoping to negotiate improved benefit-sharing terms in bilateral transactions with users under the Protocol.
Beyond agreement on these two main areas, a plethora of legal questions remain as to the adoption and implementation of the necessary amendments. Since Annex I is an integral part of the Treaty, ratification by two-thirds of its membership is required for entry into force of any expanded version, and parallel operation of two different lists of PGRFA cannot be ruled out. Back in 2019, a GB resolution was envisaged to address issues related to ratification and entry into force, which foresaw immediate entry into force of the revised SMTA to allow for benefits to accrue through the subscription system and incentivize the ratifications required.
Where we are
Although delegates in Rome agreed to use the 2019 draft package as a basis, they also noted the need to consider new ideas that have emerged since, as well as recent developments in relevant international fora.
While deliberations in Rome did not get into the draft revised SMTA, they indicated that the appetite for continued reference to a “single access” option remains, at least as a bargaining chip. In an informal exchange of views under Chatham House rules, a delegate noted that agreement on rates and thresholds for small companies as well as free subscriptions for some institutions could unlock agreement on retaining only the subscription system. The discussions were proof of the continued deep divergence of views on two key issues that caused negotiations to collapse in 2019: payment rates and, most importantly, benefit-sharing from use of DSI.
Significant recent changes in the international policy landscape, however, are expected to influence the deliberations, particularly regarding DSI. Indeed, the international community moved from a decade-long stalemate towards agreeing that technological developments would render ABS frameworks obsolete, unless the principle of benefit-sharing from DSI use is accepted. In December 2022, the fifteenth meeting of the Conference of the Parties to the Convention on Biological Diversity (CBD) agreed that benefits from use of DSI should be shared fairly and equitably. It also decided to establish, as part of the Kunming-Montreal Global Biodiversity Framework, a multilateral benefit-sharing mechanism from DSI use. More recently, the new legally-binding agreement on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) also includes provisions on benefit-sharing from DSI use.
Regarding expansion of Annex I, the fundamental division between developed and developing countries resurfaced in Rome. An increasing number of delegates, however, seem to accept that, as long as benefit-sharing flows are guaranteed, expansion of the Annex will be to the benefit of agricultural communities and global food security.
Legal questions regarding adoption of the package were mostly touched upon in an informal exchange of views under Chatham House rules. Echoing discussions during an informal meeting organized intersessionally by the Swiss government, delegates highlighted the legal complexity of the matter and the need for choosing the simplest possible route to achieve the envisioned amendments. They recalled that two-thirds of parties need to ratify the amendment for it to enter into force, which requires significant political will. With delegates looking for creative solutions to avoid the need for repeat ratification, new ideas for a gradual approach towards full expansion were discussed. This could, for example, be facilitated either by removing Annex I from the Treaty text or through national plans, according to which countries include their PGRFA in the MLS. They also highlighted challenges regarding the potential operation of two different versions of the Annex at the same time and the need to clarify accession pathways for new parties.
Where we are going
As delegates repeatedly acknowledged during the meeting, a significant amount of work remains to be done. Reaching agreement by GB 11 in 2025, as currently scheduled, will not be easy. Positions remain entrenched on a list of controversial issues, especially DSI and the benefit-sharing structure and rates. Legal questions related to the implementation and entry into force of the required amendments are genuinely complex and will require imaginative legal thinking, at both the international and national levels. For the enhancement of the MLS to succeed, three different but equally essential elements are needed: enhancing understanding and bridging positions on controversial items; analyzing legal challenges and developing workable solutions; and, as a prerequisite, building trust among negotiators.
The Treaty community will necessarily reconsider fundamental issues regarding its structure, beneficiaries, and the relationship of its MLS with other international regimes, including, crucially, on IPRs. Will delegates manage to agree on a simple and efficient benefit-sharing mechanism, decoupled from patenting, as is the case under the current SMTA? A participant put forward a new idea during the meeting, to link the benefit-sharing requirement with commercialization—an idea that promises simplicity and predictability, without tracking and tracing requirements. DSI-related questions also offer the opportunity to reconsider IPR-related questions, including the risks to food security caused by increased patenting and corporate control of agricultural development. Given the fact that DSI is currently maintained in public databases, but with patenting expanding in several jurisdictions, what is the risk of misappropriation of PGRFA-related DSI? How do patents disrupt access to DSI, and how do they affect the Treaty’s system of facilitated access? How do they affect farmers’ rights? Ultimately, deliberations on DSI offer the possibility to explicitly link items on the MLS and farmers’ rights, traditionally kept separate under the Treaty. While some participants underscored the need to address this as part of the process, others pointed to the World Intellectual Property Organization as a more suitable forum.
Importantly, the international context has changed since the last round of negotiations before 2019. As a result, several new opportunities lie ahead. The Treaty is currently the only operational multilateral benefit-sharing mechanism. With its strengths and weaknesses, it will be used as a model, both for the CBD in its development of the multilateral mechanism for benefit-sharing from the use of DSI on genetic resources, and for the World Health Organization, currently negotiating a treaty on pandemics. Success of the negotiations on enhancing the MLS by 2025 would solidify the Treaty’s place in the international ABS landscape and provide welcome momentum for other multilateral processes.
One thing to keep in mind is that agreement on the MLS enhancement ultimately rests with the Treaty’s Governing Body. This underscores the importance not only of GB 10 as a key milestone, but also the regional consultations that need to take place on the road to GB 11 to ensure buy-in from all parties. As the Co-Chairs emphasized, organizing such consultations is up to parties, although the Co-Chairs and stakeholders indicated their willingness to participate in such meetings. Admonishing all to engage in constructive deliberations, one delegate recalled that negotiations on the MLS enhancement have already surpassed those on the Treaty itself in terms of length—ten years compared to seven. Parties might not get another chance if negotiations break down again.