International law of sustainable agriculture in the 21st century: The International Treaty on Plant Genetic Resources for Food and Agriculture

Georgetown International Environmental Law Review, Summer 2003 by Rose, Gregory

ARTICLES

I. INTRODUCTION

The International Treaty on Plant Genetic Resources for Food and Agriculture (PGR Treaty)3 is the first ever binding multilateral agreement on sustainable agriculture.4 It is a milestone in the fields of international law for the environment and agriculture, auguring a new era.5 International institutions concerned with agriculture have finally matured into a holistically integrated, multilateral twenty-first century legal understanding. Or so it might seem. Alternatively, the PGR Treaty is a cobbling together of inadequate existing arrangements under a new title.

This paper examines the new PGR Treaty, assessing what is innovative about it and examining how it repackages existing arrangements. The PGR Treaty is described in the context of the pre-existing arrangements and the political forces that shaped it. The examination commences by providing a historical perspective on the transfer and use of plant genetic resources, and then the family of institutional arrangements that predate the Treaty are introduced. This family primarily consists of the International Undertaking on Plant Genetic Resources for Food and Agriculture6 (International Undertaking) and the Treaty on Biological Diversity7 (CBD), and special note is made of their attempts to address the politically central issues of allocation of property and profit flowing from plant genetic resources. The Treaty is, primarily, a combination of the characteristics of those two instruments. Further, by identifying the strengths and weaknesses of those instruments, the innovations and omissions in the PGR Treaty are highlighted and the efforts to harmonise them analysed.

The article next appraises the PGR Treaty's implementation prospects by noting the presence or absence of features usually found in successful treaty regimes and concludes with a description of the challenges ahead if the Treaty is indeed to generate a new era of international law for sustainable agriculture.

II. PLANT GENETIC RESOURCES

What are plant genetic resources for food and agriculture? Plant genetic resources are the reproductive or propagating materials of plants that encode their unique characteristics.8 Because the new Treaty addresses plant genetic resources "for food and agriculture," it primarily concerns humanity's uses for them.9

Of course, plants have many uses to humans in addition to food and agriculture. For example, coconut is used for both food and fiber, garlic for both food and medicine, and linseed and sugar for both food and industry. Nor is food production a necessary purpose of agriculture. Crops such as rubber, cotton, timber, ornamental flowers, and medicinal herbs all have principally non-food uses. Thus, "plant genetic resources for food and agriculture" (PGRFA) is not a scientific or precise phrase. Rather, it encompasses an unidentified range of activities, making it difficult to define the scope of the new Treaty.

The world's primary stores of PGRFA are located in geographic areas with the highest levels of plant inter- and intra-specific genetic variability.10 These areas, first identified in the 1920s by the Russian geneticist Vavilov, reveal that the plants that comprise humanity's main food staples have their origins in the tropical and sub-tropical zones of Asia, Africa, and Latin America.11

However, the centres identified by Vavilov no longer monopolise PGRFA diversity. Through 12,000 years of human cultivation and exchange, many plant varieties for food and agriculture were, and continue to be, developed and their distribution extended. Farmers have traditionally enriched the global store of crop varieties over millennia of investment. Initially, humans undertook this enrichment at the margins of Vavilov centres or, occasionally, over longer travels. The advent of European tall ships and the resulting colonisation of the New World resulted in major transfers of PGRFA from the Old World to the New and across the imperial colonies to plantations.12 A wide range of introduced plant varieties may now be found growing unaided in the natural environment (in situ) wherever there is a history of their agricultural production. Indeed, all regions naturally rich in endemic PGRFA now depend on crops from other regions for much of their food production.13

In the twentieth century, varied samples of important crop varieties were gathered and concentrated in seed banks (ex situ) to facilitate the conservation, development, and distribution of plant varieties for food and agriculture. Most of these crop varieties are located outside the germplasm's country of origin,14 continuing the historic dispersion of plant diversity.

The creation of seed banks has not maintained the diversity of plant genetic resources, however. Almost half of all germplasm stocks in seed banks currently need to be regenerated because many are inadequately stored and are degraded. In addition, in situ genetic variability is eroding where natural plant habitats are disrupted and where traditional agricultural crops or farming methods are displaced by uniform modern cultivars and methods.15 The combined effect is that plant genetic resources are being lost at an alarming rate, both in their countries of origin and in seed banks. Efforts to halt this loss and to conserve and develop PGRFA form part of the challenge of sustainable agriculture.