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

The status of the International Undertaking since the adoption of the PGR Treaty is unclear. There has been no resolution on the part of the Commission on Genetic Resources for Food and Agriculture to repeal the Undertaking, nor has there been any negation of it in the body of the PGR Treaty itself. The Undertaking is therefore technically operative, but functionally defunct.84

Unreconciled diverse interests at an international level hampered the implementation of the International Undertaking. These were, on one hand, the interests of the (mostly developing) countries, which had a natural abundance of PGRFA and wished to maintain control over them, and, on the other hand, the interests of the (mostly developed) countries which had made capital investments in breeding or engineering PGRFA and wished to maintain control over their refined products. It is ironic that, whilst seeking to restrict foreign access to its own holdings, each also desired unhindered free access to the others' holdings of PGRFA.

This tension was reflected in the revision of the International Undertaking. Ultimately, the main issue was who would get what and for how much. This dilemma is analysed here as a series of issues: What is the scope of PGRFA covered? Is access facilitated to those PGRFA? Is a commercial benefit to be shared? Should special arrangements be made for those originators of PGRFA who are traditional agricultural cultivators (called "Farmers' Rights")?

A. INTERNATIONAL UNDERTAKING - SCOPE

In Article 2 of the International Undertaking, plant genetic resources were defined as the reproductive or vegetative propagating material of five categories of plants.85

These five categories ranged from naturally occurring varieties ("wild" and "weed" species), through those that have been modified by traditional breeding practices at the village level ("primitive" and "obsolete" cultivars), to modern cultivars, including even the refined species held by professional breeders like seed companies ("special genetic stocks"). This broad scope alarmed some developed country FAO members, as the free access principle appeared to include the commercially valuable PGRFA produced by their agricultural research enterprises.86

Although the five categories of PGRFA listed were only within the scope of the International Undertaking if used for food and agriculture, it should be noted that it is impossible ab initio to identify a particular PGRFA on the basis of what it can later be used for. Therefore, all PGRFA might be initially included within the scope of the International Undertaking, pending an exclusion by agreement of the CGRFA. This ambiguity remains within the PGR Treaty.

B. INTERNATIONAL UNDERTAKING - ACCESS

The Undertaking was originally based on the "universally accepted" principle that PGRFA are part of the shared (but not common) "heritage of mankind" and "should be available without restriction."87 While "heritage of mankind" was not defined, the Undertaking made it clear that this meant that the world's PGRFA should be "freely available" to all (although not necessarily free of charge). Article 5 on "Availability of Plant Genetic Resources" stated: