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SCOPE AND ACCESS

WORKING GROUP ON SCOPE AND ACCESS: When the Working Group on Scope and Access convened on Tuesday delegates had before them: the Third Negotiating Draft (3ND) of the Revision of the International Undertaking on Plant Genetic Resources; the Report of the Chair of the Eleventh Session of the Working Group of the CGRFA (WG-11 Report contained in CGRFA-EX3/96/3), including an appendix containing submissions by the US, France and Brazil; an informal paper presented by the European Community and its member States; an information paper by Canada, “Benefits of the Use of Genetic Resources in Agriculture” (CGRFA-EX3/96/LIM/3); and a study by IPGRI on “Options for Access to PGR and the Equitable Sharing of Benefits Arising from their Use” (CGRFA-EX3/96/LIM/2).

Although the Chair noted general agreement for his proposal, consistent with previous CGRFA decisions on this matter — to use 3ND as a starting point for discussions on scope (Article 3 of the IU) and access (Article 11 of the IU) — delegates deliberated the order in which to address these issues. The US proposed starting with a specific rather than general consideration of scope by addressing the scope of the IU’s access provisions in Article 11. In so doing, delegates could determine whether the IU should seek to cover all situations in which access to PGRFA is sought (as highlighted in the EU paper) or only a sub-set of situations, such as those in which there is a global interest in open access rather than on mutually agreed terms (MAT). This would allow for consideration of a broad access regime or a narrower one.

The EU called for a clear division of work between scope and access, and proposed starting with the scope provisions of the IU. MALAYSIA expressed its preference for commencing with scope, noting that IPGRI’s study set out a way to explore the definition of scope, which could then be incorporated into legal language. BRAZIL expressed support for the US proposal to start with the scope of access provisions in Article 11, on the basis that it would allow delegates to identify what type of resources they were prepared to agree on. Reminded by the EU that it represented 15 member States, the Chair stated that the WG would first consider scope.

BRAZIL stated that it could be more “flexible” in its consideration of scope if access was addressed first. The Chair asked whether delegates might want to reconsider their decision in light of a conclusion in the WG-11 Report to the effect that in order to define scope, a number of other issues, including access, would need to be decided first.

GERMANY explained that the EU distinguished between two different scopes: one regarding the overall IU (encompassing a framework for activities such as conservation and sustainable use), which the EU wishes to be wide; the other regarding arrangements for access. Arguing that it would be easier to agree on the former scope, GERMANY stated that the latter should be discussed later. The US responded that for the EU’s proposal to have the desired effect, one need not have a general scope article. Indeed, the US argued that general scope articles often raised legal questions regarding the coverage of operative provisions of agreements, and that the norm was to apply different degrees of scope to different provisions.

Asserting that the activities under the different provisions of the IU are interlinked and that their scopes should not differ, CANADA deplored a “retreat” to previous positions given that the WG-11 discussions had been so fruitful. Emphasizing the urgency of moving forward, CANADA suggested first discussing scope as it applied to Article 11, with both the expectation that the scope of that article will likely apply to all other IU provisions and the understanding that other delegations may have differing views. The EU later agreed to first discuss access without prejudice to scope. In an attempt to move discussion forward on access arrangements, NEW ZEALAND stated that the objectives of the agreement could best be promoted through a network of participating institutions, based on mutually agreed terms, and recorded in appropriate contracts.

BRAZIL asserted that the first question should be whether the IU should address access to all PGRFA or only focus on a limited group for which there is global interest in maintaining unrestricted or facilitated access. Noting that the former approach has previously resulted in deadlock because not all types of PGRFA are seen by all countries as requiring the same type of access and benefit-sharing, BRAZIL underscored the achievability of an agreement, on mutually agreed terms, on access and benefit-sharing for a list of PGRFA that are important to world food security. CANADA called for a more ambitious agreement and challenged delegates to outline their rationale for wishing to exclude specific crops from the IU. The US stated that a list should not apply to areas where is agreement on unrestricted access, but should be confined to germplasm held in active collections of international centres and national genebanks when it is acquired prior to the entry into force of the CBD or acquired post-CBD but pre-revised IU, for which no conditions have been specified. ETHIOPIA, supported by MALAYSIA and the EU, stated that the IU should encompass access to all PGRFA because any list might restrict the future expansion of human food needs. COLOMBIA asserted that access to PGRFA would need to be accompanied by access to corresponding technology and legally-protected material, as addressed in the CBD. Cautioning against attempts to renegotiate the basic principles underlying CBD Article 15 (access to genetic resources), MALAYSIA stated its willingness to discuss pre-CBD collections.

CANADA identified two types of scope: biological scope (e.g., covered crops) for which delegates had proposed either a limited list or no limitations unless justified on the basis of objection to other crops being included); and temporal scope (e.g., pre- or post-CBD). On this basis, CANADA suggested that delegates focus on language in Article 3 but in application to Article 11. In response to NORWAY’s objection to a restrictive list, BRAZIL explained that its criteria for inclusion in the list — world food security and interdependence — justified clear multilateral terms of access and benefit-sharing.

Recalling CANADA’s challenge to countries to outline any objections to specific crops, the UK noted that COP-3 would not have called for the CGRFA to reach a speedy conclusion to revising the IU if Parties had deemed the issues to have been adequately addressed by the CBD.

In response to GERMANY’s statement that food security was achieved mainly in the “farmer’s field”, BRAZIL noted that international agreements do not preclude countries or regions from negotiating agreements to ensure access to promote the sustainable use of regionally or locally important crops. He hoped this concern would be converted into financing the GPA’s chapter on under-utilized crops.

Noting that human consumption is not based solely on PGR, FRANCE stated the IU should be as broad as possible, proposing that every country identify which material would be subject to free and unrestricted access. He further stated a proliferation of access regimes, through the creation of categories at local, national and regional and international levels, would not facilitate access in accordance with CBD Article 15.2.

The US cited the UN Convention on the Law of the Sea (UNCLOS) as a legal precedent for a regime that allows for the amendment of lists over time in accordance with scientific change.

On behalf of the African Group, TANZANIA stated that access should be open to all PGRFA, but would not automatically be free and that rules of access would need to be negotiated. COLOMBIA stated that ease of access and food security should not undermine the CBD’s benefit-sharing provisions.

CANADA underscored the need to come to a multilateral agreement that will facilitate access for the broadest scope of crops under the terms of the CBD and in respect of national laws on property. In response to CANADA’s query as to whether Brazil might be willing to consider a longer list initially (given that delegations might have different ideas as to which crops might meet the two criteria), BRAZIL responded that they are open to suggestions.

ARGENTINA stated that Resolution 3 of the Nairobi Final Act, which called for the harmonization of the IU in line with the CBD, underscored the promotion of sustainable agriculture, not food security. AUSTRALIA stated that although it could appreciate the apparent logistical simplicity of lists, the exclusion of pre-CBD ex situ collections would create a highly ambiguous situation, and called for the scope to be “all- embracing”. The US proposed adding specificity to discussions on access provisions, by asking if there be one set of rules or different sets of rules for different sets of PGRFA. GERMANY stated that the EU paper provides for a broad, flexible and multilateral system within which institutions and countries would designate all the PGR in the collections, subject to exceptions. In response to BRAZIL’s query as to whether this represented the final EU proposal that appeared to be more of a compilation rather than a coordination of positions, FRANCE responded that it was not yet definitive but rather an informal paper designed to advance discussions.

On behalf of developing countries of Asia, MALAYSIA stated that if such a list were agreed, it would be necessary to discuss conditions to facilitate multilateral access to PGR necessary for food security. TANZANIA concurred, noting that it would only be possible for Article 15.2 to truly facilitate multilateral access if national sovereignty is respected. Noting that the CBD’s recognition of sovereignty over natural resources does not grant property rights over genetic resources, CANADA stated that the UN system allowed for national governments to exercise sovereignty while entering into multilateral agreements. In response to a similar contention by the US that agreement on multilateral rules on access could only build on Article 15’s provisions regarding mutually agreed terms, MALAYSIA maintained that the terms of access under a multilateral agreement would need to implement Article 15. Expressing concern that terminology such as “open” and “unrestricted” could be imposed on nations in such a way as to hamper national legislation, TANZANIA stated that the African Group wanted to negotiate the terms of access under a multilateral agreement according to CBD Article 15.

ANGOLA, on behalf of the African Group, and MALAYSIA, on behalf of the developing countries of Asia, each tabled text that builds upon a pre-existing proposal for new wording in Article 3.1 of the 3ND. While the African proposal underscores species of economic and social importance having actual or potential value, the Asian proposal underscores agricultural crops of economic and social importance and having great interdependence among countries. Both proposals state that access to PGRFA shall be subject<W0> to national sovereignty and legislation, and linked with Farmers’ Rights, technology transfer and benefit-sharing. JAPAN objected to including these issues in articles on scope, noting that they should be addressed in an article on objectives. Noting that it builds upon text from the CBD, CUBA supported the text proposed by ANGOLA, and requested that it be considered as a compromise. CANADA proposed that reformulation of Article 3.1, which makes links with elements of the IU not discussed by the CGRFA since November 1994, be postponed until delegates had completed consideration of Article 11.

At the beginning of the second session of the Working Group on Scope and Access, those countries who made submissions to the WG-11 Report outlined their proposals. Noting that the central question regarding access is whether the IU should seek to establish a comprehensive set of rules or whether to narrow the IU provisions on access to those genetic resources for which there is global interest in maintaining unrestricted access, the US stated its support for the latter option. In response to MALAYSIA’s call for a clear understanding of the term “unrestricted access”, the US explained that it meant “without conditions,” but should be applied in only in specific circumstances. CANADA, MALAYSIA and the US deliberated whether the patenting of a gene sequence from an International Agricultural Research Centre or the inclusion of a patented gene in accessions in national or international collections would affect the availability of the germplasm from which it was derived. The US expressed concern that a focus on the most difficult scenarios would ignore the significant benefits from open access to the genetic resources of major food crops. ETHIOPIA noted a consensus among countries on the desire for access, but also on the need for compromise so as to ensure fair terms of access and benefit-sharing for all owners and users.

The UK expressed concern that the discussion on IPRs was getting into areas beyond the competence of the CGRFA, noting the COP-3 decision on access, which requests the CGRFA to cooperate with the WTO through its Committee on Trade and Environment in exploring the linkages between CBD Article 15 and relevant articles of the WTO agreement on Trade-Related Intellectual Property (TRIPs).

Citing a document regarding access issues for consideration in Stage II of the revision of the IU (CGPR/6/95/8 Supp), which notes that the CBD provides for the right of access by other Parties subject to prior informed consent (PIC) and mutually agreed terms, ANGOLA asked whether “unrestricted” meant “free”. The US maintained that the important point was that any benefits gained from restricting access to genetic resources that are widely held all over the world, far beyond their centres of origin, are outweighed by the benefits to potential users of freely available material.The US added that addressing certain cases in which global interest is such that access can be mutually agreed is not inconsistent with the CBD but rather builds upon it. COLOMBIA stated that in several Commission background papers, unrestricted was defined as “permanently available”, but noted that such access required several conditions that are linked to benefit-sharing. CANADA added that the 3ND emphasizes that access shall be unrestricted for “research, breeding and educational purposes” but does not refer to commercial purposes. MALAYSIA complimented Canada for actually outlining some of the conditions for access and noted that conditions could also be discussed in line with CBD Article 15.2. Noting that the distinction made by Canada is inspired by patents and sui generis regimes, COLOMBIA stated another sine qua non for access, often required by access legislation, is access to information pertinent to the handling and use of PGR and participation by the country of origin in research on these genetic resources.

FRANCE explained that although protected varieties could not be sold directly, they could be used for research and breeding purposes, even privately, and this could be the subject of unrestricted access. Stating that there is no reason to have a harsher access regime for genetic resources than for PGR, FRANCE noted that although one cannot claim rights on genetic resources, it is possible to claim them on the results of research and then go on commercialize them. COLOMBIA asserted that the current strengthening of intellectual property regimes can run counter to the establishment of easy access. The US noted that it would be closer to the CGRFA’s area of expertise if it posed the same questions from a different angle. Assuming unrestricted meant “not subject to conditions”, the Commission could discuss categories of germplasm for which access is sought and the purposes for doing so.

FRIENDS OF THE CHAIR CONTACT GROUP: At the end of the second session, Chair Bolivar called for the creation of a small contact group of the “Friends of the Chair” (FOC) to be comprised of Brazil, Colombia, Angola, Ethiopia, Tanzania, Malaysia, Japan, Canada, the US, Poland and an EC representative. The FOC would meet in order to specify conclusions in light of the discussions in the Working Group on Scope and Access. The FOC, as initially constituted, met for three sessions under the chairmanship of Dr. Bryan Harvey (Canada), who presented the first Report of the Friends of the Chair’s Contact Group (CGRFA-EX3/96/WGSA/1) to plenary on Thursday. The report outlined a list of options to be discussed in order to make progress in developing consensus text and is organized according the following questions:

The report also noted that several submissions to the FOC, including those made by the African Group and Australia, as well as those made to WG-11 by the EU, the US, France and Brazil, be added to the 3ND.

PLENARY: The International Plant Genetic Resources Institute (IPGRI) summarized the major findings of “Options for Access to PGR and the Equitable Sharing of Benefits Arising from their Use” (CGRFA-EX3/96/LIM/2), a study commissioned by CGRFA on the feasibility of possible systems for the exchange of PGRFA as well as the transaction costs likely to be incurred in the various system options. The study proposes that a mixed multilateral/ bilateral option may be appropriate in certain circumstances, for example to promote benefit-sharing in the event of commercialization. In assessing the “web of different systems”, the study notes that a current example of a multilateral system is the Consultative Group on International Agricultural Research (CGIAR). The study suggests that in the absence of agreement on a multilateral system, countries will work towards some form of multilateral exchange (e.g., regional cooperation or networks) due to the transaction costs of operating bilaterally.

Several delegations expressed appreciation for IPGRI’s presentation, noting that it provided both food for thought, and a sounding board for either clarifying or articulating their own positions. In the ensuing discussion, the EU stated that the IPGRI had clarified scope in distinguishing between PGR for food and agriculture and PGR for pharmaceuticals. BRAZIL noted that the presentation had reinforced its understanding that genetic resources are subject to various forms of collaboration from bilateral to multilateral. CANADA highlighted the accommodation of bilateral arrangements within a global exchange system, and suggested that IPGRI consider the transaction costs of the various proposals on prior informed consent. MEXICO recommended that IPGRI provide a more precise description of materials held in International Centres in order to ensure their availability to humankind. COLOMBIA explained that the current networks in Latin America are ill-suited to a multilateral agreement, and called for new systems and a study on the technical, legal and economic implications of exchanges between public authorities and the private sector. The US stated that the international community has an interest in making existing networks work, and that it is essential to keep costs down and rules simple in devising any multilateral system.

The International Association of Plant Breeders for the Protection of Plant Varieties (ASSINSEL) underscored three key issues in the implementation of both the IU and the CBD: maintenance of and access to PGR; use of effective technologies; and protection of intellectual property. He explained that industry’s need for high, short-term returns on investment meant that the private sector could not ensure adequate long-term maintenance of PGR. He noted that industry recognized that free access did not necessarily mean cost-free access.

GHANA underscored that genebanks continue to degenerate due to years of fruitless negotiations and the absence of networks in West and Central Africa. SWEDEN was encouraged by ASSINSEL’s concern regarding genetic erosion. FRANCE noted the “goodwill” and willingness of plant breeders to participate in national conservation strategies on PGR.

ETHIOPIA stated that countries might better evaluate the advantages and disadvantages of various multilateral agreements if these were presented according to a “package” of scenarios on scope and access: wide scope and unrestricted access; wide scope and restricted access; limited scope and unrestricted access; or limited scope and restricted access. The US stated that a “matrix” presenting a variety of possibilities on scope and access would clarify some of the benefits of open and unrestricted access and would allow for move forward, starting with international collections and then “broadening” from this “small” area. Noting Ethiopia’s proposal to examine the costs and benefits of various options, FRANCE suggested developing a programme of work that would put future discussion on a new and better footing. Recognizing that the atmosphere of the meeting had improved, delegates deliberated how to proceed and eventually agreed to reconvene the FOC contact group, which would be extended to accommodate two representatives from each region, also drawing on the original participants to ensure continuity.

On Friday morning, the FOC Chair presented the results of this second round of discussions in report (CGRFA-EX3/96/WGSA/1/ Add.1) which, allowing for numerous amendments proposed by delegates during plenary discussions, served as the basis for the Commission’s decision on Scope and Access.

The report noted that the although the FOC used Ethiopia’s proposal for developing a matrix on scope and access as a basis for its deliberations, even a multi-dimensional matrix could not cover all important aspects, given the complexity of the issues involved. Therefore, the Commission recommended that IPGRI, in conjunction with the FAO Secretariat, carry out a study in two steps: a characterization of options on scope and access (to be completed by 31 January 1997 and circulated to the Commission for comments); and a “notional assessment” of the “pros and cons” of each option as well as of their viability. The study will draw on the issues raised on scope and access in the first report of the FOC (CGRFA-EX3/96/WGSA/1) as well as regional and country papers submitted to WGSA and WG-11. It was also suggested that the transaction costs of prior informed consent arrangements should also be studied. The final study will need to be completed in time to be of use to delegates in their preparations for CGRFA-7 in May 1997.

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