The International Treaty on Plant and Genetic Resources for Food and Agriculture (ITPGRFA) 2001.

International Undertaking on Plant and Genetic Resources (IUPGR) was adopted in 1983 by the new Commission on Plant and Genetic resources of the Food and Agriculture Organisation (FAO) of the United Nations. The objectives of this “non binding legal instrument”[1] were ‘to ensure the safe conservation and promote the unrestricted availability and sustainable utilization of plant and genetic resources for present and future generations, by providing a flexible framework for sharing the benefits and burdens’[2] and to ensure that plant genetic resources for food and agriculture would be explored, preserved, evaluated and made available for plant breeding and scientific purposes.[3] It was based on ‘the universally accepted principle that plant genetic resources are a heritage of mankind and consequently should be available without any restriction.’[4]

The Undertaking reverberated the concerns of countries regarding access to and use of bio genetic resources, the role of intellectual property, especially patents and plant breeders’ rights as applied to bio genetic resources, the relation between sovereignty and the principle of “common heritage of mankind” and small farmers’ contribution to the conservation of plant genetic resources.[5] Tensions and frictions were observable amid biodiversity-rich countries in the South and industrialized and technologically advanced but biodiversity-poor countries in the North.[6]

After the adoption of Convention on Biological Diversity (CBD) at the United Nations Conference on Environment and Development (UNCED), a set of new binding principles and rules applicable to access to genetic resources in general were introduced. [7] These new rules were in contrast with many provisions of the IUPGR. In November 1993, FAO’s Resolution 7/93 recognized the need to review the Undertaking as applied to plant genetic resources for food and agriculture in particular and develop a binding treaty in conformity with the CBD rules.[8] The Commission on Genetic Resources then held series of negotiations and discussions to revise the IPGUR, these negotiations finally came into a conclusion in November 2001. [9]The revised undertaking was then transformed into the ITPGRFA when it was adopted by the FAO in Rome in November 2001. [10]

The international treaty on plant and genetic resources for food and agriculture (ITPGRFA) is a legally binding agreement adopted by the United Nations Food and Agriculture Organization (FAO) Conference on, November, 2001.[11] After ratification by forty countries (the minimum required for its entry into force) the ITPGRFA entered into force on 29 June 2004 as the first legally binding international agreement exclusively dealing with the plant genetic resources for food and agriculture (PGRFA) management.[12] This treaty stresses that, bio genetic resources are no longer the common heritage of humankind and they cannot be treated as freely accessible commodities.[13] It further asserts that the authority to determine access to these resources rests with national government and is subject to national legislations and polices.[14] It also recognises both the sovereign rights and interdependence of countries over their plant genetic resources for food and agriculture and establishes a multilateral system that aims to facilitate access and benefit sharing.[15]

The general provisions of the Treaty set a modern framework for the preservation and sustainable utilization of PGRFA. As per article 6 of the treaty[16], each contractual party are obliged to carry out main tasks with respect to conservation, exploration, collection, characterization, evaluation and documentation of PGRFA. These obligations are placed on each state party, acting individually or where appropriate in cooperation with other Parties, and call for the promotion of an integrated approach to the exploration, conservation and sustainable use of PGRFA.[17]

Article 6[18] of the treaty confers obligation to the Contracting Parties to develop and maintain appropriate policy and legal measures that promote the sustainable use of PGRFA and gives a non exhaustive list of the types of measure[19] that may be included.[20] The treaty acknowledges the contribution of local and indigenous communities and farmers in the conservation and development of plant genetic resources as a basis for food and agriculture production. Furthermore, it places the responsibility for realizing those rights on national governments.

The contracting parties acknowledge the ‘enormous’ contribution of local and indigenous communities and farmers in the conservation and development of plant genetic resources as a basis for food and agriculture production. Furthermore, it places the responsibility for protecting and promoting those rights on national governments.[21]The measures that individual Contracting Parties should take include the protection and promotion of: (i) traditional knowledge relevant to PGR[22]; (ii) rights of farmers to participate equitably in the sharing of benefits arising from the utilization of PGRFA[23]; and (iii) the right to participate in making decisions at the national level with respect to the conservation and sustainable use of PGRFA.[24]

The main focus of the treaty is in providing ways for the preservation and sustainable  use  of  genetic  resources  for  food  and  agriculture,  as the basis for sustainable agriculture and food  security.[25] The flow of PGRFA[26] had been endangered by developments that forced breeders and farmers to seek access to PGRFA on a bilateral basis and by practical difficulties of negotiating terms for access and benefit sharing for such a large number of individual transactions. The treaty ensures this continued flow of PGRFA which is so  essential  to  agriculture  and  food  security  by  setting  up  a  multilateral  system  of  facilitated  access and benefit sharing for those plant genetic resources that are most important for food  security and on which countries are most interdependent. The contracting parties have agreed on standard terms and conditions for access and benefit sharing, thereby avoiding the need to resort to bilateral negotiations over each transaction. In addition, states have agreed on sharing a range of other benefits, including transfer of technology, access to information and capacity building.[27]

The treaty calls for contractual parties to implement a funding strategy that will assist in implementing the objectives of the treaty. The funding strategy will include the financial benefits arising from the commercialisation of plant genetic resources under the Multilateral System, but also includes funds made available through other sources including voluntary contributions made by the contracting parties.

The governing body of the treaty is composed of all contracting parties and will act as the supreme body for the treaty and provide policy direction and guidance for overseeing and promoting the full implementation of the treaty.[28] Each member has one vote in the governing body, which meets twice a year. The FAO director general with the approval of the governing body appoints the secretary of the governing body. Any dispute between the contracting parties relating to the implementation of the treaty should be solved by negotiations; if necessary a third party can be involved.[29] If in case the negotiations for settlement of disputes fails then the treaty provides for arbitration with its own sets of procedures listed in annex II of the treaty.[30] Remedy can be sought through International Court of Justice if other dispute settlement mechanism provided by the treaty fails.[31]

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[1] Ruiz Manuel, Overview of the International Treaty on Plant Genetic Resources for Food and Agriculture, 2004.

[2] Dutfield Graham, Intellectual Property, Biogenetic Resources and Traditional Knowledge, Earthscan (2004), Pp 39.

[3] Andersen Regine, Governing Agrobiodiversity: International Regimes, Plant Genetics and Developing Countries, University of Oslo, 2007, Pp 113.

[4] See Art. 1 of the International Undertaking on Plant Genetic Resources (IUPGR) 1983.

[5] Ruiz Manuel, Overview of the International Treaty on Plant Genetic Resources for Food and Agriculture, 2004.

[6] Ibid.

[7] Carrizosa et al, Accessing Biodiversity and Sharing the Benefits: Lessons from Implementation of the Convention on Biological Diversity. IUCN (2004), Pp 2-3

[8] Ibid.

[9] Dutfield Graham, Intellectual Property, Biogenetic Resources and Traditional Knowledge, Earthscan (2004), Pp 40.

[10] Ibid.

[11] Bhattarai Ananda, Protection of Himalayan Biodiversity, International Environmental Law and Regional Legal Framework, Sage Publications (2010), Pp 53.

[12] Andersen Regine, Governing Agrobiodiversity: International Regimes, Plant Genetics and Developing Countries, University of Oslo, 2007, Pp 109.

[13] Carrizosa et al, Accessing Biodiversity and Sharing the Benefits: Lessons from Implementation of the Convention on Biological Diversity. IUCN (2004), Pp I.

[14] Ibid.

[15] Dutfield Graham, Intellectual Property, Biogenetic Resources and Traditional Knowledge, Earthscan (2004), Pp 39-41.

[16] See article 5 of International Treaty on Plant Genetic Resources for Food and Agriculture 2001.

[17] Moore Gerald et al, Explanatory Guide to the International Guide on Plant Genetic Resources for Food and Agriculture, IUCN (2005), Pp 15

[18] See article 6 of International Treaty on Plant Genetic Resources for Food and Agriculture 2001

[19] The sustainable use of plant genetic resources for food and agriculture may include such measures as:

a)       pursuing fair agricultural policies that promote, as appropriate, the development and maintenance of diverse farming systems that enhance the sustainable use of agricultural biological diversity and other natural resources;

b)        strengthening research which enhances and conserves biological diversity by maximizing intra- and inter-specific variation for the benefit of farmers, especially those who generate and use their own varieties and apply ecological principles in maintaining soil fertility and in combating diseases, weeds and pests;

c)       promoting, as appropriate, plant breeding efforts which, with the participation of farmers, particularly in developing countries, strengthen the capacity to develop varieties particularly adapted to social, economic and ecological conditions, including in marginal areas;

[20] Moore Gerald et al, Explanatory Guide to the International Guide on Plant Genetic Resources for Food and Agriculture, IUCN (2005), Pp 15

[21] Ibid

[22] Article 9.2 (a), ITPGRFA.

[23] Ibid, (b)

[24] Ibid, (c)

[25] Moore Gerald et al, Explanatory Guide to the International Guide on Plant Genetic Resources for Food and Agriculture, IUCN (2005)

[26] PGRFA here should be understood as, easy and low cost access of farmers and breeders to the plant genetic resources necessary to face new environmental and agricultural challenges, including access to the information, technical and financial resources and capacity necessary to utilize those resources fully.

[27] Ruiz Manuel, Overview of the International Treaty on Plant Genetic Resources for Food and Agriculture, 2004.

[28] See article 19 of the ITPGRFA 2001

[29] See article 22 of the ITPGRFA 2001.

[30] Andersen Regine, Governing Agrobiodiversity: International Regimes, Plant Genetics and Developing Countries, University of Oslo, 2007, Pp 124

[31] Ibid.

This is also a working draft but I will try to update the final version as soon as possible.