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 Code reiterates that nations have sovereign rights over their PGRFA, but also that PGRFA should be made readily available.63 It recognises the rights of local farming and indigenous communities to the PGRFA they maintain. At the same time, the Code re-emphasises the need to share the benefits derived from PGRFA between the source States and the collectors or users of germplasm. To this end, it suggests ways in which the collectors or users may pass on a share of the benefits to the donors, recognising the rights and needs of local communities and farmers.

Unlike the Multilateral System under the PGR Treaty and the CGIAR-FAO agreements, the Code's provisions concerning access are not legally binding on its adherents. Nevertheless, the Code includes reporting provisions to allow the CGRFA to monitor its implementation.64 In the case of non-observance by a collector of the principles of the Code or of the rules and regulations of the host country, the host country can report the matter to the CGRFA. Any such offence against the Code would jeopardise an offending State's entitlement to a certificate from the FAO stating that there are no unresolved complaints against them.65 Nevertheless the Code ultimately lacks force.

Outside the Code of Conduct, regional developments to implement the CBD are consistent with implementation of the Code. These regional developments are discussed in the context of the CBD, which is the driving force in these developments, in Section V.C, infra.

I. IN SITU: CONSERVATION

The FAO, in cooperation with other organisations, is developing a network of in situ conservation areas.66 This work takes place under the Global Plan of Action and focuses on conserving wild relatives of cultivated plants, the promotion of "on-farm conservation," and the utilisation of "land races."67

Fowler and Mooney persuasively argue that the conservation of agricultural diversity can best be achieved through the use of many strategies.68 Reliance exclusively on ex situ conservation in IARC seed banks is seen as a risky strategy because the range of accessions collected is skewed, incomplete, and suboptimal. Therefore, additional in situ conservation through on-farm use of land races of PGRFA by farmers is essential. Successful examples of on-farm approaches include seed saving through community seed banks in Indonesia, the Seed Savers Exchange in the United States, and community-based education programs for conservation of land races in India and the Philippines.69

J. CBD: AGRICULTURAL BIODIVERSITY

Beyond the FAO Global System, but in tandem with the International Technical Conference in Leipzig, the Conference of Parties to the CBD adopted a decision on conservation and sustainable use of agricultural biodiversity in 1996. The CBD decision extends beyond plants to include animal genetic resources and mandates that the CBD work on the conservation of diversity at the interface of agro-ecosystems with other ecosystems, the sustainable use of genetic resources for food and agriculture, and the equitable sharing of benefits.70 The CBD's emerging work on agricultural biodiversity takes place in close collaboration with the FAO. For example, much information collection for the CBD on current agricultural biodiversity was performed by the FAO, and the CBD welcomed the FAO Global Plan of Action and revision of the International Undertaking.71