|
||
|
TWN
Info Service on Biodiversity and Traditional Knowledge (Apr25/02) Plant Treaty: South calls for better MLS governance, expanded definition of “commercialisation” Rome, 3 April (TWN) – Developing countries have called for better governance of the Multilateral System (MLS) on Access and Benefit-sharing of the International Treaty on Plant Genetic Resources for Food and Agriculture (the Plant Treaty). They also sought an expanded definition of the term “commercialisation” during the first day of the negotiations of the 13th Meeting of the Ad Hoc Open-ended Working Group to Enhance the Functioning of the Multilateral System (WG13) of the Treaty. Treaty Parties from Asia demanded better MLS governance, highlighting aspects relating to digital sequence information (DSI) generated from plant genetic resources for food and agriculture (PGRFA) shared through the MLS. They also called for expansion of the scope of commercialisation in the Treaty’s Standard Material Transfer Agreement (SMTA) to cover all forms of commercialisation for food and agriculture. Similarly, the African Group sought changes in the definition of the term “product”. [Developing countries from the Asia region are represented by Malaysia, Nepal and the Philippines in the Working Group.] Both these groups and several other developing countries from the Near East and GRULAC regions made it clear that the current SMTA does not capture benefits arising from the use of PGRFA DSI, and that voluntary payments with regard to DSI are not enough. Some of them also pointed out that the MLS should capture the benefits arising from the use of DSI without accessing PGRFA from the MLS. [The Near East group is represented by Jordan, Iran and Lebanon in the Working Group. GRULAC is the Group of Latin America and the Caribbean.] The WG13 meeting is taking place from 1 to 4 April at the headquarters of the Food and Agriculture Organization in Rome. The meeting is trying to enhance the MLS based on a proposed package of measures developed by the Co-chairs. The meeting has 7 agenda items: (1) Opening of the meeting, (2) Adoption of the agenda and organization of work, (3) Developments in other relevant fora, (4) Package of measures to enhance the functioning of the Multilateral System, (5) Next steps to finalize the package of measures; (6) Other matters; (7) Adoption of the Report. The MLS is a system for facilitating access to seeds and other propagating materials (technically known as PGRFA) for research and breeding, and for fair and equitable sharing of the benefits arising from the utilization of the same, on a mutually reinforcing basis. Unfortunately, the system has failed to deliver on its mandate on a mutually reinforcing basis, with only access to PGRFA materials having improved since the establishment of the MLS. The developed countries in the Working Group are single-mindedly focussing on improving legal certainty of the facilitated access to seeds for their companies, while attempting to dilute legal certainty of the benefit sharing obligations of such companies by giving them various options amounting to loopholes. They also seek to maintain or even strengthen the current environment that keeps biopiracy undetected. The Co-chairs’ proposed package of measures that are currently being negotiated reflects most of their demands, while very little reflects the demands of the developing countries. These measures, if adopted, could lead to corporate control over PGRFA and increased biopiracy. Limited negotiations and focus on finish line On day one of the meeting (1 April), the Co-chairs said they would be “unsympathetic” towards new proposals as they wanted to focus on the finish line, which is proposed as November 2025, when the Treaty’s Governing Body would meet. Ever since the Working Group resumed its work in 2022, after it was suspended in 2019, the Co-chairs and Secretariat of the Treaty have been trying to not open up the existing Treaty for the purpose of enhancement of benefit sharing. At the same time, they have supported amending the Treaty to expand the scope of the MLS from 64 plants to almost “all plants” that have potential value for food and agriculture (full expansion). This was considered necessary to keep the Plant Treaty intact. Further, the negotiations have been revolving around a 2019 package which had several “agreed ad ref” provisions (meaning text on which there is initial consensus), even though the circumstances have widely changed since 2019. The Working Group has been trying its best to make very limited changes to those provisions. There have not been much text-based negotiations in the Working Group in its past several sessions. In the meetings, Working Group members would express their ideas, perspectives, proposals and arguments. After the collection of these general ideas and opinions, the Co-chairs would try to modify their proposals, sometimes through a smaller drafting group. The WG13 meeting seems to continue with this process, partly because of limited time, and partly because developed countries' demands are already adequately reflected. Key demands from developing countries Developing countries have always been very cautious about expanding the scope of PGRFA included in the MLS. Many of them have opposed the “full expansion” from the Annex 1 list of crops covered under the MLS to “all PGRFA”. They have also opposed suggestions of a “negative list”, which would automatically include all PGRFA unless specifically excluded from the MLS. Several of them wish to see a “positive list” or limited and periodic expansion of the list under Annex 1. During Agenda Item 4 on the package of measures, the Philippines, speaking for itself, Malaysia and Nepal (the only other 2 developing countries from Asia represented in the Working Group), cautioned that the Working Group should not assume that “expansion of the Annex will come at ease” and called for mutually reinforcing proposals on issues such as benefit sharing, limiting the scope of intellectual property, use of DSI, transparency and governance of the MLS. Previously at the Working Group’s 12th meeting, the Philippines and the Asian developing countries had opposed “full expansion” and a negative list approach. GRULAC made a statement saying that they have compromised their historic opposition to the expansion of the Annex in expectation of a subscription system which would substantially address funding gaps for implementation of the Treaty through payments from the users of PGRFA from the MLS. They called for a discussion on the payment rates and to arrive at a commitment of rates which would help to consider whether there should be further efforts to negotiate expansion of the Annex. In their opening statement on Agenda Item 1, they stressed the need for a subscription-only system for benefit sharing. The African Group reminded that the better payment structure should also include mandatory payments from the use of DSI, not just voluntary payments. In addition, during Agenda Item 3 regarding developments in other fora, the Asian developing countries, taking note of the discussions in other fora such as the Convention on Biological Diversity (CBD) and the World Health Organization (WHO), also called for better governance to be ensured on the DSI generated from PGRFA. Call for “future-proof” and “product-neutral” definition of commercialization One of the key aspects of developing country proposals is the call to expand the idea of commercialization in the SMTA. They argued that the definitions of sales and commercialization have to be revised to capture “all forms” of commercialization using the MLS, not just seed sales. They also stressed that commercialization should include even the commercialization of data analytic services that use PGRFA DSI from the MLS. The Philippines delegation further said that Asian developing countries do not think that the “current limited understanding of commercialization” should continue to guide the actions and negotiations of the Working Group. The definitions need to be “future-proof” and “product-neutral”. The proposal from the African Group indicated that they want to change the definition of product to include “direct use”, which would also expand the scope of the commercialization that will be then taken into account for the calculation of benefit sharing payments. Since the Co-chairs proposed to first discuss payment structure and rates, civil society organizations (CSOs), taking note of the proposals from Africa and Asia, requested a note in the draft stating that the definition of commercialization and sales will be discussed further so as to enhance the scope of commercialization. The Parties supported the CSOs’ statement and negotiations on the payment structure and rates began. Divergent views on payment structure The Co-chairs proposed to discuss specifically the provision dealing with payment structure and rates, instead of going paragraph by paragraph in the SMTA. Although they proposed to discuss rates first, the differences between countries regarding payment options took centre stage in the negotiations. There was no discussion on the numbers, as sought by the GRULAC. The African Group tried to propose discussing subscription as a separate distinct system, defining recipients and bringing all texts in the SMTA relating to subscription together (these are currently dispersed across the text). Norway proposed discussing a subscription system outside of the SMTA. On one side, there are countries who want only a “subscription system” in which recipients of PGRFA are required to pay annually based on the turnover they generate from seed sales in total, irrespective of the fact of whether those seeds in the market are developed using the MLS or not. On the other side, there are countries who consider the subscription system only as an option from which the recipients can choose. These other options allow recipients to receive the materials and use it for several years without making any payments, until they develop another PGRFA product (seeds) using the MLS and commercially sell it on the open market. This optional system has failed since the Treaty was established, not just because it was optional, but also due to the lack of governance and transparency which allows recipients to produce PGRFA products and commercialize without being detected by the MLS. Thus, developing countries have strongly demanded a system which ensures that user-based payments will be predictable and sustainable. On the other hand, North America in particular Canada, is opposed to a subscription-only system. In between these positions are a few countries who are trying to push for a wide range of options to bridge both options – most of which, if not all end up as an optional system of payments. All of them compromise predictability in benefit sharing. Europe takes a step back on “subscription-only” system During the first day of the meeting, the divergences in the European region on the subscription system for benefit sharing payments became apparent. Not all countries from the region fully support subscription-only options. Germany proposed to discuss various options so as to bring more users into the MLS. Countries like Norway and Switzerland have long been advocating for a subscription-only system in exchange for a full expansion of the Annex in the Working Group, if not formally, at least informally. However, as the divergences in the European region become apparent, this placed pressure on countries like Norway and Switzerland to find alternative compromises. Better governance of PGRFA DSI and reference to UNESCO Recommendation During the discussion on Agenda Item 3, the Co-chairs invited the CBD Secretariat representative to present her views and perspectives on developments in other fora. She took note of the document prepared by the Plant Treaty Secretariat on the issue, which was primarily focussed on the CBD COP16 decision related to DSI. The Plant Treaty Secretariat note had missed several key elements which were included in the COP16 DSI decision, such as (i) the sovereign right of the Parties to nationally legislate on the use of DSI, (ii) the possibility of including aspects relating to the DSI in the material transfer agreements (iii) the role and obligations of databases, (iv) the obligations of database-hosting and -sponsoring Parties, and (v) certificates issued by the CBD multilateral mechanism for payments made in line with the COP decision for the use of DSI under the scope of the mechanism. [The CBD multilateral mechanism is a newly established multilateral ABS mechanism for the use of DSI, that is publicly accessible, beyond the scope of any other national and international ABS agreement: see TWN reports on the adoption of the multilateral mechanism and its Cali Fund.] The CBD Secretariat pointed out the missing reference to the certificates, while CSOs pointed out the other elements. The developments in the negotiations for different ABS systems in the WHO were also discussed. Unlike the CBD, the WHO and Plant Treaty seek to obligate States to share genetic materials for specific purposes. Therefore, the WHO and Plant Treaty should remain ready to ensure that genetic materials or any other valuable component or data derived from them should not be diverted to other purposes, which would compromise sovereign rights. The CSOs stressed that the UNESCO Recommendation, which calls for good data governance, along with the CARE (Collective benefit, Authority to control, Responsibility, and Ethics) Principles on Indigenous Data Governance, should also be included in the package alongside the FAIR Principles. Taking note of these discussions, the Asian developing countries also proposed to include the package of measures needed for better governance and transparency with respect to use of PGRFA DSI. In their opening statement, CSOs had earlier stressed that unless the lack of accountability and transparency is addressed and tackled, they would not be supporting their governments in contributing more resources into the Treaty MLS. The International Planning Committee (IPC) for Food Sovereignty, representing millions of peasants, small-holders and indigenous peoples around the world, had also strongly called for the regulation of the use of DSI at national levels. They said this is because “open access to DSI has allowed companies to plunder the Multilateral System over the last fifteen years without even having to access it, just by downloading related genetic sequence information published online by researchers”. Failure to regulate the use of DSI would mean that the Treaty would “never be able to ensure protection for farmers' rights and prevent the patenting of genetic resources contained in the Multilateral System, and provided by those very same farmers”, the IPC stressed. It highlighted that the CBD’s multilateral mechanism for sharing the benefits of the use of DSI is unfortunately based on voluntary rather than mandatory payments, which would not make it any more effective than the current Treaty mechanism. “It is now our responsibility as a Group to correct its ineffectiveness.” +
|
||
