LAST CHANCE FOR AN OPEN ACCESS REGIME?

LAST CHANCE FOR AN OPEN ACCESS REGIME?

The negotiations relating to access and use of agricultural genetic resources are soon to reach a 20-year milestone, though some negotiators might think "millstone" more appropriate. In November 1981, the 150 or so member states of the UN’s Food and Agriculture Organisation (FAO) proposed setting up an international convention to conserve agricultural biodiversity, to ensure that it is used for the benefit of all, and to avoid any restrictive practices that limit its availability. Two years later the FAO adopted the International Undertaking on Plant Genetic Resources (IU), despite strong opposition from most industrialised countries, who nevertheless managed to turn the call for a legally-binding Convention into a voluntary Undertaking.

From the beginning, the strategy of the developing countries and NGOs that supported them was to create a legal multilateral instrument that would help draw a halt to the further privatisation of agricultural genetic resources, as well as a strong UN-based political platform to bring these resources under governmental control. Those were the days that the donor-led Green Revolution agricultural research institutions were facilitating massive gene flows from the farmers fields in the South to genebanks under control of the North. Those were also the days when transnational companies from the agrochemical sector were starting to buy up seed companies worldwide, and when industrialised countries started implementing monopoly Plant Breeders Rights over crop varieties. Developing countries and people concerned with sustainable agricultural development had good reason to be worried.

The South’s proposal was to treat genetic resources as the "common heritage of mankind" and to keep them in the public domain. The major industrialised powers obviously found this threatening and strongly opposed such a move. The fighting was particularly strong over the South’s insistence on free and unrestricted access to breeders’ lines and finished varieties. After several years of intense discussion, a way out of the deadlock was found in 1989 through a resolution, annexed to the IU, which on one hand recognised that Plant Breeders Rights did not conflict with the IU, and on the other hand did recognise "Farmers’ Rights." Farmers’ Rights – among other things – established the rights of farmers and their communities to participate fully in the benefits derived from genetic resources. As an expression of these rights, an international fund would be established to support genetic resource conservation and use in the South. Farmers Rights were conceived as a counterweight to the Plant Breeders Rights, and to balance – and perhaps stop – the increasing control of bio-diversity in the hands of a few large companies.

Until the early 1990s, the South’s demands in relation to agricultural genetic resources were for free access, no intellectual property rights and political control through a multilateral framework and forum. But then the political winds started to change direction. Privatisation of agricultural research in industrialised countries continued at a rampant speed, propelled by neo-liberal policies and developments in technology (in particular biotechnology). The patenting of genetic resources increasingly gained acceptance in the North. The South witnessed powerlessly how none of its objectives in relation to the biodiversity negotiations came near fulfillment. So it opted for a radical change in strategy: trading in the concepts of "common heritage" for "national sovereignty," and "free access for all" for the "fair and equitable share of the benefits." The thinking was that this would allow individual nation states to better control (and benefit from) their own biological resources. Some observers referred to this as the "bilateralisation" of the biodiversity debate. These principles became the cornerstones of the Convention on Biological Diversity (CBD), in the light of which the Undertaking is now being re-negotiated.

The change in approach towards genetic resources engendered by the CBD did not encourage the already recalcitrant North to contribute towards the International Fund they had agreed to set up. In order to foster support for the Fund, FAO organised a process to draw up a Global Plan of Action (GPA), which established priorities for the conservation and use of agricultural plant genetic resources. The 20-point plan was finally agreed at FAO’s Leipzig Conference in 1996. While it did include some interesting proposals to work more towards on-farm management of biodiversity, and constructive measures to broaden the genetic base of agriculture, it still came under criticism from NGOs for being too much of a "genebank plan."

Although the Global Plan of Action was on the table, it was clear that not much action would take place until the rules of the game were clarified. A re-negotiated Undertaking was needed which would complement the CBD. Also, the bulk of genetic resources collected before the CBD – millions of seed samples – were outside any agreement. For most of the 1990s, the negotiations dragged on, in every direction except forward, largely because of confusion about what was at stake. The negotiations also failed to attract enough political interest to gain any serious commitments – on access, on funding, on anything. The CBD loomed over as an excuse not to move forward, rather than as an inspiration to finalise a deal.

Perhaps the most important difference between countries was the level of perceived need for a multilateral system for agricultural biodiversity at all. A few countries, lead by Brazil with its huge rainforest bioresources, leaned towards bilateral agreements, and argued for a very limited scope for the Undertaking. On the other hand, countries like France and the UK expounded endlessly about the importance of an open-acess regime, but failed to offer anything concrete in terms of financial support or benefit sharing. Most countries did agree, though, that strictly bilateral approaches were inappropriate in the case of agricultural biodiversity.

By 1998, negotiations had come very close to total standstill, having produced an overly long, unreadable and almost completely bracketed (ie not agreed) negotiating text. They were saved only by an informal meeting involving a small group of the key negotiators who produced a short text known as the Chairman’s Elements. This contained draft solutions to several of the key conflict issues and had enough support to hold a new round of negotiations.

Since then, progress has been considerable, at least relatively speaking. The April 1999 meeting of the Commission – at which the Chairman’s elements formed the central negotiating text – produced only moderately bracketed text for three central Articles, including an entirely unbracketed Farmers’ Rights Article. A contact group (subcommittee) was also created to speed up the pace. This group negotiated most of another key Article, Benefit-sharing, in September 1999, and then met again for what was to become a dramatic meeting in April 2000.

On the agenda were the contentious issues of Financial Resources, Access and the unresolved parts of the Benefit-sharing article. With agreement almost in sight, the Brazilian delegation dropped a bomb by presenting a proposal containing a new variation on their well-known theme of limiting the coverage of the Multilateral System (MLS). The proposal was simply to limit the MLS only to material collected before the CBD came into force (instead of both pre- and post-CBD materials). This would have rendered the Undertaking almost meaningless.

Paradoxically however, the Brazilian move led not to a breakdown but to a breakthrough in negotiations. Brazil had counted on support from other developing countries. But after a long, tense day of regional consultations, all the other participants, North and South alike, came out against Brazil. On this basis, new text was compiled for most of the remaining Articles. While the key political issues are still unresolved, all the elements of a deal are now in place.

The text remains remarkably close to the Chairman’s Elements of early 1999, the key components being:

Farmers’ Rights. Perhaps the most important key to unblocking the negotiations was the formula for disarming the issue of Farmers’ Rights. The new text is a true compromise in the sense that probably none of the negotiating partners are very happy with it, while all can live with it. In other words, it changes virtually nothing, while allowing all parties to back out without losing face (see box).

Scope/coverage. The scope of the Undertaking is now defined as all Plant Genetic Resources for Food and Agriculture. The coverage of the Multilateral System, however, will be much narrower, being based on the criteria of food security and interdependence. In practice, most of the major food crops will probably be covered, but the exact list remains to be negotiated.

Benefit-sharing. The broad perspectives originally opened by Farmers’ Rights are now supplanted by the narrower concept of benefit sharing. In the new IU, this is conceived to consist partly of the value inherent in having a Multilateral System of access, and partly in direct financial benefits. There is no agreement about the formal strength of the financial commitment, nor about the cost distribution model, nor about actual figures. The negotiating text includes a proposal to channel part of royalties from plant breeding patents into the same financial mechanism.

Intellectual Property Rights (IPRs). While in general IPRs are not contested, there is also text – bracketed but most likely acceptable – that bans any IPRs on materials received through the MLS. The debate is still open on the extent to which IPRs would be allowed on modifications of the original materials (new crop varieties, isolated genes, etc).

The Old and New Undertakings compared

The new Undertaking will have little direct impact on Farmers’ Rights over genetic resources. The only direct reference to farmer plant breeders is that they will now be formally granted the same rights over their breeding materials, during the period of development, as formal sector breeders. This is not a new provision, but it could now become a legally-binding commitment, which may prove useful as some protection against biopiracy. But in essence, the IU relates to the formal research and breeding sector, and its direct effects will be felt almost exclusively there.

But it can be argued that indirectly there are clear benefits to farmers, in that the Undertaking promises at least some shelter from purely bilateral and commercial plant genetic resources management systems. This agreement is in no way revolutionary, but there is little doubt that a world with the Undertaking is a better place for farmers than one without it.

The main potential positive effects of the agreement are listed below. How much of this will actually materialise depends on the final stage of negotiations:

• Facilitated access to agricultural biodiversity. The IU re-establishes, between parties and within the limits of the crops covered, the free exchange of genetic materials that was the norm until the advent of IPRs. In a world of increasing interdependence, this makes a very considerable difference to plant breeders, increasing choice and rewarding cooperation, while reducing cost and administrative red tape. Importantly, unlike the CBD, the system will cover both pre- and post-CBD materials.

• Strengthened public sector breeding and conservation in the poorer part of the world thanks to more stable funding commitments from the richer part of the world. If directed well, this should also support and promote on-farm biodiversity management. While public research institutions are not perfect systems for agricultural research and development (R&D), they are almost always a better alternative than the transnational companies which increasingly dominate the R&D arena.

• A strong global forum specifically for agricultural biodiversity will be preserved. The FAO Commission on Genetic Resources, created by the original Undertaking, has contributed a lot to advancing the political discussion about genetic resources between governments, and with other actors, including NGOs and farmers’ organisations. There is a clear and continued need for such a high level political forum. Should the Undertaking renegotiation fail, it is unclear what would be the natural home for the discussion on agricultural genetic resources.

• A model for multilateral access and benefit sharing. The new Undertaking could also serve as a model for agreements in other genetic resources sectors. The present trend toward privatisation and commercialisation is mostly to the disadvantage of local livelihood systems based on natural resources (fishing, forestry etc). The instances where local communities can benefit from commercialisation under bilateral contracts are few and far between.

For the Undertaking to become legally-binding and operational, a lot still has to happen. The crucial (and conflictive) issues are clearly on the table. It’s time to get serious. In the words of Jan Borring, the seasoned head of the Norwegian delegation: "Developed countries should realise that without some credible mechanism for benefit-sharing there will be no agreement on a multilateral system with open access to plant genetic resources for food and agriculture. On the other hand, developing countries should realize that no [rich] country will accept new obligations (for funding or otherwise) to a system where facilitated/open access applies only to a very limited number of crops." Up to now, serious commitments have been elusive. This has to change. For the IU to make any difference, we need at least:

Industrialised countries must step up with concrete commitments. To implement the GPA, already agreed upon by the international community in Leipzig, a annual budget of some $US 450 million was suggested. This is not a lot of money for the donor community. And it certainly is not much money if the industrialised world gets a relatively open and multilateral access regime for it in return. Europe must stop dragging it feet, and come forward. The US and some others must decide whether they want to be part of the system (and comply) or be left out (and stop blocking the negotiations).

Industrialised countries have to realise that they cannot have it both ways: free access on one hand, and privatisation on the other. For the MLS to meet its objectives, the material in the system and the derivatives of that material have to remain public goods free from IPRs. Only then can the MLS contribute to the strengthening of independent and relevant agricultural research, and build bridges to farmer-based biodiversity management.

The new formualtion of Farmers Rights is a far cry from the original idea. But even in its weakened form, a clear monitoring and review mechanism is needed at the level of the Commission, to ensure that governments live up to their commitments and that the rights of farmers are upheld.

The FAO-based Intergovernmental Commission that now governs and renegotiates the Undertaking must be politically upgraded. Countries need to send high level representation that is able to take decisions and make commitments. Governments must realise that this is about politics and the future of agriculture, not genebank administration, and represent themselves accordingly. In addition, NGOs and Farmers’ Organisations must be allowed to play a much more active role. If there is one lesson to be learned from previous international agreements, it is that unless civil society groups are actively involved and committed to help steering and implementing them, they remain mostly empty paperwork.