International Treaty on Plant Genetic Resources for Food and Agriculture, 2001

1. Why a separate treaty for food crops

The CBD (1992) replaced the “common heritage” approach with state sovereignty and bilateral access deals based on prior informed consent and mutually agreed terms. That model works for a rare medicinal plant found in one country. It works badly for food crops, for three reasons:

• Interdependence: every country depends on crops that originated elsewhere. India grows maize, potato, chilli and tomato from the Americas; the Americas grow wheat and rice from Asia.
• Pedigree complexity: a modern wheat variety may have dozens of landraces from many countries in its ancestry, so identifying “the” provider for benefit sharing is impractical.
• Ex situ collections: much crop diversity sits in gene banks collected before 1993, which Article 15(3) of the CBD leaves outside its access rules.

Resolution 3 of the Nairobi Final Act adopting the CBD text (1992) recognised these open questions. The FAO renegotiated its non-binding International Undertaking on Plant Genetic Resources (1983) to bring it into harmony with the CBD. The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) was adopted by the FAO Conference in November 2001 and entered into force in 2004. India is a party.

2. Objectives and definitions

Article 1: the conservation and sustainable use of plant genetic resources for food and agriculture (PGRFA) and the fair and equitable sharing of the benefits arising out of their use, in harmony with the CBD, for sustainable agriculture and food security. The three objectives mirror the CBD’s, applied to one sector. Article 2 defines genetic material as in the CBD and PGRFA as any genetic material of plant origin of actual or potential value for food and agriculture.

3. Conservation and sustainable use

• Article 5: survey and inventory PGRFA; promote collection; support on-farm management and conservation by farmers and local communities; promote in situ conservation of crop wild relatives, including in protected areas; maintain ex situ collections; monitor and reduce threats.
• Article 6: sustainable use through policies that promote diverse farming systems, research that benefits farmers, participatory plant breeding, broadening the genetic base of crops, wider use of local and locally adapted crops and underutilised species, and review of breeding and seed regulations.

These duties are framed as “as appropriate” and “subject to national legislation”, so they are soft in form, but they recognise that biodiversity in agriculture is kept alive by farmers in fields, not only in gene banks.

4. Farmers’ rights (Article 9)

Article 9 recognises the enormous contribution that local and indigenous communities and farmers of all regions, particularly in centres of origin and crop diversity, have made and will continue to make to the conservation and development of plant genetic resources. Responsibility for realising farmers’ rights rests with national governments, which should take measures to protect and promote them, including:

1. protection of traditional knowledge relevant to PGRFA;
2. the right to participate equitably in sharing benefits arising from their use; and
3. the right to participate in decision-making, at the national level, on conservation and sustainable use.

Article 9.3 states that nothing in the Article limits any rights farmers have to save, use, exchange and sell farm-saved seed, subject to national law and as appropriate. This is the first binding recognition of farmers’ rights, though its content is left to national law. India’s PPV&FR Act, 2001 (section 39) is one of the strongest national implementations.

5. The Multilateral System (Articles 10 to 13)

Parties, “in the exercise of their sovereign rights” (Article 10), agree to pool a list of crops in a Multilateral System of Access and Benefit-sharing.

• Coverage (Article 11): the 64 crops and forages in Annex I, chosen for food security and interdependence (rice, wheat, maize, potato, sorghum, millets, pulses, brassicas, among others), that are under the management and control of parties and in the public domain, plus the collections of the CGIAR international agricultural research centres placed under the Treaty (Article 15). Soybean, groundnut, sugarcane and most tropical fruits are not in Annex I.
• Facilitated access (Article 12): for research, breeding and training for food and agriculture, but not for chemical, pharmaceutical or other non-food industrial uses; expeditiously, free or at minimal cost; with passport data.
• Standard Material Transfer Agreement (SMTA): adopted by the Governing Body in 2006, used for every transfer, and binding on later recipients. It replaces case-by-case PIC and MAT.
• Benefit sharing (Article 13): information exchange, technology transfer, capacity building and monetary benefits. A recipient who commercialises a PGRFA product incorporating material from the System must pay an equitable share into the Benefit-sharing Fund if the product is not available without restriction for further research and breeding.

6. The IP clause: Article 12.3(d)

“Recipients shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources for food and agriculture, or their genetic parts or components, in the form received from the Multilateral System.”

The words “in the form received” divide readers. Industry and some developed countries read them to allow patents on isolated or modified genes, because these are no longer in the form received. NGOs and many developing countries read them to bar any claim that would restrict others from using the material and its genes. The clause shows the Treaty trying to coexist with TRIPS and UPOV without resolving the conflict.

7. Institutions

• Governing Body of all parties (Article 19), which adopted the SMTA and the funding strategy.
• Benefit-sharing Fund, which supports farmers in developing countries; mandatory payments have been small and most money has come from voluntary contributions.
• Global Information System (Article 17) and the link with the Global Crop Diversity Trust, which funds long-term gene bank conservation.

8. Relationship with the CBD, Nagoya and TRIPS

• The Treaty is a specialised instrument “in harmony with” the CBD. Article 4(4) of the Nagoya Protocol recognises that where a specialised ABS instrument applies, Nagoya does not apply to the parties to it for the resources covered. Annex I crops under the SMTA are therefore outside the bilateral PIC and MAT model.
• Non-Annex I crops and non-food uses fall back on the CBD and Nagoya.
• The Treaty does not override TRIPS; Article 12.3(d) and the preamble’s statement that the Treaty and other international agreements should be mutually supportive leave the relationship to interpretation.

9. India’s implementation

• PPV&FR Act, 2001: farmers’ rights (section 39), community rights (section 41), benefit sharing (section 26) and the National Gene Fund (section 45).
• Biological Diversity Act, 2002: the NBA regulates access to Indian biological resources generally, so the two regimes must be read together: Annex I material moving under the SMTA from the national gene bank at the National Bureau of Plant Genetic Resources follows the Treaty, while other access follows the BDA. Section 40 of the BDA allows the Central Government to exempt biological resources normally traded as commodities.

How this is examined

Likely long questions. “Explain the salient features of the International Treaty on Plant Genetic Resources for Food and Agriculture, 2001.” “The Multilateral System of the ITPGRFA is a departure from the bilateral model of the CBD. Discuss.”

Likely short notes. Multilateral System; SMTA; farmers’ rights under Article 9; Article 12.3(d); Annex I crops; Benefit-sharing Fund.