TWN Info Service on Biodiversity and Traditional Knowledge (Apr25/07)
21 April 2025
Third World Network

Plant Treaty: MLS Working Group debate on expansion of scope of plants postponed

Kochi, 21 April 2025 (TWN) – The 13th Meeting of the Ad Hoc Open-ended Working Group (WG13) to Enhance the Functioning of the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty) has postponed talks relating to the Co-chairs’ proposal to expand the scope of plants covered by the Treaty.

The 13^th meeting concluded in the first week of April at the FAO Headquarters in Rome.

Annex I of the Plant Treaty contains a list of negotiated selection of crops for which Contracting Parties (Parties) undertake to share genetic resources under the Multilateral Access and Benefit Sharing System (MLS).

The Co-chairs have proposed text for amending the Plant Treaty to fully expand the list of the plants contained in Annex I. Full expansion means practically renders the list meaningless and opens the Treaty to all plant genetic resources. This is one of the most contentious issues addressed by the Working Group and postponing these talks is seen as a strategy to avoid disruptive debates in the penultimate session of the Working Group. The idea is to arrive at an agreement on most parts of the text and then negotiate on the expansion of the Annex based on the consensus arrived till then. However, this approach gives very little time to negotiate text for amendments that alter the basic structure of the Treaty itself or discuss alternative ideas.

There is only one more meeting scheduled for the Working Group that will be in Peru from 7 to 11 July 2025. After this 14^th meeting the Working Group will have to submit its outcome to the Governing Body of the Plant Treaty scheduled for November.

The Plant Treaty has long established and operationalized the MLS with an aim to:

·         Facilitate access to seeds and propagating materials (technically referred to as “plant genetic resources for food and agriculture”) of the plants listed in the Annex for research and breeding; and

·         Share, fairly and equitably, benefits arising from their utilization, on a mutual reinforcing basis.

The Parties undertake to share seeds and propagating materials with each other, and their natural and legal persons, based on a set of terms and conditions determined collectively by the Parties to the Treaty, instead of the terms and conditions set by the provider country. The terms determined by the Parties collectively are put into a Standard Material Transfer Agreement (SMTA), which the providers and recipients of the seeds and propagating materials will sign at the time of their transaction.

Unfortunately, even though approximately 6.6 million seeds and other propagating materials have been shared with more than 25,000 users under the auspices of the Plant Treaty in the last two decades, only five users so far have shared monetary benefits with the Food and Agriculture Organization (FAO), which is the third-party beneficiary receiving monetary contributions on behalf of the Parties to the Treaty. Thus, the Treaty implementation has failed to facilitate access and benefit sharing on a mutually-reinforcing basis, owing to several loopholes in the Plant Treaty text, and lack of accountability and transparency.

However, instead of addressing these gaps in the Treaty and its implementation, the Working Group has been focussing on expanding the scope of the MLS with regard to the seeds and propagating materials transacted under the system.

Despite resistance from developing countries like Nepal, Malaysia, the Philippines, Lebanon, Jordan, Iran and the African Group countries, the proposals from the Working Group Co-chairs are focussed on the idea of “full expansion”, with a one-time applicable “negative list” of Parties without any alternative options.

(Negative list means that all seeds and propagating materials are covered except for those explicitly excluded by the Parties at the time of ratification of the proposed amendment. This is in contrast to the existing structure where only those seeds and propagating materials of crops listed in the Annex are covered under the MLS.)

Latin American developing countries have declared their willingness to accept the full expansion of the Annex since the Working Group resumed its work following the 2022 decision of the Governing Body of the Treaty.

Representatives of the Group of Latin American and Caribbean Countries (GRULAC), including Brazil, Argentina, Peru, Chile and Ecuador, have however reiterated that their commitment to full expansion is based on an understanding that there will be effective benefit-sharing. On the other hand, the prospects of achieving better benefit-sharing contributions continue to wither away at each meeting of the Working Group as the members seem to find it more important to adopt measures by the next Governing Body session, regardless of whether they are efficient and effective.

Farmers’ representatives from various continents have been opposing the proposal for expansion of Annex I. Unfortunately, developed countries do not give equal weightage to their concerns, when compared to that of the commercial seed sector.

Around 146 organisations, inclusive of farmers’ groups and civil society organisations from around the world, recently sent a letter to the developing country delegations at WG13, categorically requesting the negotiators to reject the proposal to fully expand the Annex. They requested instead for a dynamic process of expanding access to the PGRFA in the MLS which is tied to improvements in benefit-sharing. (See the letter in English, French and Spanish.)

Amending the Plant Treaty for expansion of the Annex

Annex 1 of the Plant Treaty lists 64 food and forage crops that are selected on the basis of their relevance to food security and interdependence between Parties for accessing maximum germplasm or genetic diversity relating to those crops. For example, a country like India cultivates maize and may have developed indigenous landraces. However, for accessing native varieties and closely connected landraces, India would have to rely on foreign nations, especially from the Americas.

Accordingly, Article 11.1 of the Plant Treaty states that “in furtherance of the objectives of conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of benefits arising out of their use, as stated in Article 1, the Multilateral System shall cover the plant genetic resources for food and agriculture listed in Annex I, established according to criteria of food security and interdependence”.

Thus, considering the importance of access to genetic diversity for improving food crop varieties and maintaining food security, and the interdependence of Parties to maintain such access, the 64 crops and forages were originally selected to be shared under the Plant Treaty. This limitation of the scope was designed also to maintain harmony with the Convention on Biological Diversity (CBD), which recognizes national sovereign rights over genetic resources in general, as well as the rights of indigenous peoples and local communities over their genetic resources.

Article 1 of the Treaty states: “The objectives of this Treaty are the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention on Biological Diversity, for sustainable agriculture and food security”.

What is not covered by the Plant Treaty continues to be subject to national legislation adopted pursuant to the CBD to which all countries, except the United States and the Vatican, are Parties.

The Preamble of the Treaty makes it clear that the MLS is designed to deal with a “negotiated selection” of plant genetic resources for food and agriculture (PGRFA).

However, the proposal in the Working Group is to disregard this “negotiated selection” approach and open the Annex to “all PGRFA” by amending the Plant Treaty. PGRFA means “any genetic material of plant origin of actual or potential value for food and agriculture”. Thus, not only food crops and edible plants, but also wild plants and non-edible plants, could be considered as part of the MLS if it is claimed that they have a potential value for food and agriculture.

The current proposal to amend the Plant Treaty appears in the negotiation text for Annex 1and reads thus:

“1. In furtherance of the objectives and scope of this Treaty, in accordance with Article 3 of this  Treaty, and without prejudice to Article 12.3 h of this Treaty, the Multilateral System shall, in  addition to the Food Crops and Forages listed above, cover all other plant genetic resources for food  and agriculture, including those plant genetic resources for food and agriculture previously excepted  or excluded in the list above, that are under the management and control of the Contracting Parties  and in the public domain and that are found in ex situ collections.

2. At the time of its ratification, acceptance or approval of this Amendment, a Contracting Party may, exceptionally, declare certain and a limited number of species that it will not make available under the terms and conditions of the Multilateral System. Such a declaration shall not affect the rights and obligations of any other Contracting Party related to the species, nor those of the International Agricultural Research Centres or other International Institutions that concluded an agreement with the Governing Body under Article 15 of this Treaty. A Contracting Party may withdraw its declaration at any time, or eliminate plant genetic resources for food and agriculture from its list at any time, but shall not make any additional declaration.

3. The Governing Body may decide at its Fourteenth Session that Contracting Parties, who have ratified, accepted or approved this amendment, may declare, within a specified period of time, additional species that they will not make available under the terms and conditions of the Multilateral System.”

Farmers decry “seed trafficking” in the name of an enhanced MLS

The Plant Treaty considers increased sharing of seeds and propagating materials under the auspices of the MLS itself as a major benefit. For this reason, several incentives are created under the MLS, which are being currently misused by the recipients of the PGRFA, to avoid benefit sharing both under Plant Treaty and elsewhere, amounting to undetected biopiracy.

Farmers’ organisations thus questioned the intent of the MLS enhancement. They stress that in the name of seed-sharing, what is actually taking place is the auctioning of seeds to the highest bidders and limiting the rights of farmers over seeds.

“What is happening through this Treaty and in this Working Group can be called as the process of legitimising and legalising Seed Trafficking”, said Tanmay Joshi, a farmer from central India, representing the International Planning Committee for Food Sovereignty (IPC) in the opening statement to WG13. IPC represents millions of peasants, small-holders and indigenous peoples around the world.

IPC said that the Co-chairs’ proposal rightly recalls the prohibition for the beneficiary to claim intellectual property rights over the PGRFA supplied by the MLS, their genetic parts and components, and that farmers' rights must be respected. “However, they do not propose any legally binding measure for verifying compliance and sanction violations”, they pointed out. Therefore, they asserted that the MLS is becoming an instrument of biopiracy, and the expansion of Annex 1 worsens this situation by making the MLS open to all plant genetic resources for food and agriculture.

As mentioned above, there are several provisions in the Plant Treaty which were originally designed as incentives to promote seed sharing, research and breeding. However, they are often used as legal loopholes.

For example, Article 12.3.b of the Treaty says “Access shall be accorded expeditiously, without the need to track individual accessions and free of charge, or, when a fee is charged, it shall not exceed the minimal cost involved.” This provision is misinterpreted to the extent that it has become an excuse to not set up accountability and reporting mechanisms, which would improve governance. 

Article 12.3.b only says that providers should not burden recipients with obligations to undertake tracking of individual accessions shared by them. However, it is often cited by the Treaty Secretariat and the developed countries as a common understanding that governing the access and use of the seeds is impractical and cumbersome. In a sense, because of the above provision, they seem to argue that the original drafters of the Treaty had not included good governance and accountability mechanisms because these cannot be efficient.

Another example is Article 13.2.d.ii where recipients of the MLS who commercialise seeds developed using the resources received from the MLS need not contribute to the benefit sharing fund, if such newly developed seeds are available for further research and breeding by others. This provision is currently being cited by North America, Germany, and the seed industry to pre-empt effective measures to improve benefit-sharing.

Similarly, the Plant Treaty says the recipients should not seek intellectual property or other rights that limit the facilitated access to the PGRFA, or their genetic parts or components, in the form received from the MLS. However, this provision is also interpreted as permissive of intellectual property and/or such other rights on newly developed seeds and the use of the resources or derivatives including sequence data in the development of such seeds. 

Since the Working Group resumed its sessions after the 9th Session of the Governing Body of the Plant Treaty, there has never been a discussion on these loopholes and lack of appropriate governance. According to the IPC, “the problem lies in the structure of the discussion”.

“A process that should not only include the participation of peasants and Indigenous Peoples, but be built entirely around their demands and rights, is now so far from them, and steadily heading in the opposite direction” they stated.

Farmers’ groups also emphasise that “Open access to DSI [digital sequence information] 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. Consequently, if this group does not focus on a proposal to regulate the use of DSI at national level, it will 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”.

They demanded that the Working Group not rely on the mechanism developed for sharing benefits arising from the use of DSI, which is a voluntary mechanism. They argued that it is the responsibility of the Working Group to build effective mechanisms and measures in this regard.

The IPC concluded by saying “For these reasons, we advise all the Contracting Parties, and particularly the representatives of the countries of the Global South, against concluding agreements on the expansion of Annex I and payment structures. Even in the best-case scenario, i.e. where it is decided to base access to the Multilateral System solely on the subscription system, no meaningful payments will ever be made, because large companies can now rely on DSI of the MLS PGRFA. To protect the Multilateral System from biopiracy, we must first prevent the patenting of DSI linked to the genetic resources it contains”.

Measures proposed on DSI under the current package of measures are highly inadequate because they cover only the use of DSI by those who have received seeds and propagating materials through the MLS. Thus, if a seed company downloads DSI from the CGIAR centres’ databases and uses the same for developing their new variety, the company will not be required to share benefits unless it has also accessed seeds through the MLS. Unfortunately, the Treaty and SMTA do not use the phrase “sequence information or data” explicitly, and recipients like CGIAR centres therefore argue that they are free to upload DSI into any database and share it with anonymous third parties, no matter whether they use it for food or feed purposes or other purposes.

The Co-chairs’ amendment proposals to the Treaty or SMTA do not address any of these concerns.   

Working Group postpones the discussion on Annex expansion to its last meeting

Although WG13 discussed a package of measures for enhancement of the MLS, it did not open negotiations on the above proposals to amend the Treaty. The Co-chairs indicated, before opening the discussion on the expansion of Annex 1, that there needs to be clarity regarding other measures needed for enhancing the MLS. These essentially relate to the benefit-sharing payment structure and rates, as well as issues relating to the handling of DSI generated from the shared PGRFA materials.

The Working Group members agreed with the Co-chairs and followed the suggested programme of work. According to observers familiar with the talks, this could be a delaying tactic to limit discussion on the expansion of the Annex and to rush through its conclusion at the final meeting of the Working Group. Often, a lack of time results in developed country proposals dominating the final meetings and thus these can remain in the final draft with limited changes.

Developing countries from Asia reminded the Working Group about the interlinkages between issues such as the expansion of the Annex, benefit-sharing, intellectual property, DSI, transparency and governance of the MLS. They urged that no assumption be made that the expansion of the Annex is a settled issue, while the SMTA and other problematic aspects of the Treaty remain effectively unchanged. They also called for expanding the scope of commercialization covered under the SMTA and appropriate governance of DSI generation, storage and usage within the SMTA.

Next steps

According to the Draft Report of the WG13 meeting, the following activities are agreed as next steps:

i. Reconvening the Standing Group Legal of Experts (SGLE) with the mandate and

composition set out in the Draft Terms of Reference contained in Appendix 4. Details for the working of the SGLE were also agreed including specific legal questions raised during this meeting and provided in paragraph 12. The SGLE will work virtually and by electronic means. The Terms of Reference of the SGLE may be updated at the fourteenth meeting of the Working Group, as needed.

ii. Regions as well as by Contracting Parties are invited to provide written submissions ahead of the meeting.

iii. Regional meetings will be organized during the next intersessional period.

iv. The Co-Chairs will continue to communicate and consult with the regional contact points nominated after the last meeting to prepare the next meeting.

v. Exploratory Notes will not be developed. However, a number of Information Documents rates scenarios, percentage of incorporation, etc.) and non-papers will be prepared, including a Workflow that illustrates the different options the Recipient has under the Standardized Material Transfer Agreement.

vi. The text resulting from this meeting and adopted in the Report will be used in Regional Consultations and in the next Working Group Meeting.

The next Working Group meeting will be held on 7 to 11 July 2025, in Peru. The outcomes of that meeting will be submitted to the 11th Session of the Governing Body, scheduled for November 2025.