Intellectual Property Norm Setting in ex situ Plant Germplasm Access and Benefit Sharing Arrangements
Chapter 4
Intellectual Property Norm Setting in ex situ Plant Germplasm Access and Benefit Sharing Arrangements
Introduction
The preference for cheap food of uniform and predictable quality, the increasing urbanization and move away from subsistence farming, and the increased global population necessitate a huge increase in global agricultural production to feed, clothe and sustain future populations.1 Added to this are the likely detrimental impacts of climate change.2 The solution is an increasing reliance on the positive potential for advances in science and technology to increase the efficiency, effectiveness and quantity of food, feed and fibre production. This will require, in part, new plant varieties and access to the germplasm to breed these new varieties. As a direct consequence, these trends and developments have precipitated the need more carefully to conserve and share plant germplasm.
IP is embedded in accessing and benefit sharing in both the germplasm and the incidental institutions and facilities for its conservation and sharing. While patents and plant breeders’ rights are the major forms of IP directly affecting the germplasm, other forms of IP play important roles. These include trade secrets to protect lines for hybrids, geographical indications to protect qualities, origins, reputations and characters, copyright over databases and publications and so on. These incidents of IP have both positive and negative consequences, encouraging and rewarding creations and inventions meanwhile also limiting access and increasing prices. The challenge is to understand how IP operates in germplasm exchanges. And then to find an appropriate balance between the needs of inventors, creators, investors and consumers, and a broader public interest in efficient and effective conservation, exchange and use.
Perhaps the most significant consequence of IP has been its imposition on the previously free sharing of germplasm that characterized the Green Revolution in the 1950s, 1960s and 1970s. With the advent of the United Nations’ Convention on Biological Diversity (CBD) in 1993 and the Food and Agriculture Organization of the United Nations (FAO) International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty) in 2004, germplasm is now subject to a regulatory regime that promotes IP in the context of formal agreements (contracts) between the genetic resource holders and those accessing the genetic resource. While the forms of IP are set down in both international and domestic regulation, such as the minimum standard for copyright, patents, trademarks, and so on, in the World Trade Organization’s Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), those implementing the CBD and Plant Treaty are establishing norms for the circumstances in which IP will be adopted and asserted. As a consequence the policies and practices of some of those implementing the CBD and Plant Treaty are considered in this chapter to investigate the likely contours of IP in practice.
Thus, this chapter reviews the evolving legal architecture implementing the CBD and Plant Treaty in the context of ex situ germplasm collections (principally the Consultative Group of International Agricultural Research’s (CGIAR) germplasm collections) to identify the sources of IP norms affecting germplasm. The chapter demonstrates there are a range of sources and that together these sources are establishing norms for the roles of IP in germplasm exchange arrangements. This is important because accessing the germplasm and then using the materials to improve the food, feed and fibre is the first step in increasing the efficiency and effectiveness of production to deal with necessary increased global agricultural production. The chapter is structured as follows: the next part traces the evolution of the legal architecture that has led to the predominant arrangements for ex situ collections under the FAO’s Global System on Plant Genetic Resources for Food and Agriculture. While this legal architecture does not provide the only means of regulating ex situ collections, it does track the evolving concerns about establishing and maintaining ex situ collections and the global coordination of global agriculture. The following part outlines both the CBD and the Plant Treaty and their IP obligations. The next part then outlines the institution implementing these agreements to demonstrate the sources of authority establishing norms for the ways in which IP is being used in accessing and benefit sharing germplasm exchanges. The final part concludes that there is the potential for IP to affect both the price and availability of food, feed and fibre in the future, although whether this will be problematic is still a question for the future.
The Evolving Legal Architecture
The United Nations Conference on the Human Environment in 19723 recommended for plants that ‘Governments should make sure that valuable gene pools held by individuals or small institutes are also held in national or regional collections’,4 and for ‘plant germplasms (agriculture and forestry), organize and equip national or regional genetic resources conservation centers’,5 and that ‘the need for liaison among the parties participating in the global system of genetic resources conservation requires certain institutional innovations’.6 To this end the conference endorsed a recommendation ‘[t]o assist in the liaison and cooperation between national and regional centers, with special emphasis on international agreements on methodology and standards of conservation of genetic material, standardization and coordination of computerized record systems, and the exchange of information and material between such centers.’7
In effect, this was recognition of a coordinating role for the FAO as an impetus for conserving plant germplasm through ex situ collections.8 Around the same time the CGIAR Technical Advisory Committee considered a report by an expert working group about the conservation of the world’s genetic resources that had also recommended the development of a global network of germplasm collections and creating a coordination centre.9 The coordination centre was later established as the International Board for Plant Genetic Resources (IBPGR).10 The FAO and IBPGR then worked together ‘promoting the international collaboration of national, regional and international plant genetic centers in which plant genetic resources are collected, maintained, evaluated, exchanged and distributed’.11 This eventually crystallized as impetus for an international instrument dealing with germplasm together with developing the global network of germplasm collections and an evolving legal architecture for their regulation.12
The foundation for the FAO’s formal authority for regulating plant genetic resources was the adoption in 1983 of the International Undertaking on Plant Genetic Resources (International Undertaking)13 and the establishment of the Commission on Plant Genetic Resources14 (now the Commission on Genetic Resources for Food and Agriculture – CGRFA – and now with a broadened mandate to cover all components of biodiversity of relevance to food and agriculture).15 The International Undertaking contemplated an international arrangement consisting of a number of centres covering global genetic resources and the necessary expertise to conserve the germplasm.16 The FAO also established an intergovernmental body to oversee these developments, the now CGRFA.17
The International Undertaking was subsequently amended in 1989 to accommodate evolving concerns about IP and biotechnology18 and farmers’ rights,19 and in 1991 to recognize national sovereignty over genetic resources.20 Then in 1992 an agreed text of the CBD was settled with express recognition that genetic resources not covered by the CBD needed to be addressed and farmers’ rights needed to be resolved.21 In 1993 the FAO itself resolved to revise the International Undertaking in the CGRFA forum in harmony with the CBD.22
Negotiations in the CGRFA continued throughout the 1990s, leading eventually to the adoption of the Plant Treaty in 2001.23 Along the way the FAO endorsed the Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture in 1996 as an internationally agreed framework for the conservation, exploration, collection, characterization, evaluation and documentation of plant genetic resources.24 And in 2000, the Conference of the Parties to the CBD ‘envisaged’ that the revised International Undertaking (the now Plant Treaty) would ‘play a crucial role in the implementation of the [CBD]’,25 and that the Plant Treaty system was integral to national responses to implement the CBD.26 These various influences are expressly recognized in the Plant Treaty providing, in part, in Art 1:27
The objectives of this [Plant 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 … These objectives will be attained by closely linking this [Plant Treaty] to the Food and Agriculture Organization of the United Nations and to the Convention on Biological Diversity.
And also, in part, in Art 14: ‘Recognizing that the rolling [Global Plan of Action] is important to this [Plant Treaty], Contracting Parties should promote its effective implementation, including through national actions and, as appropriate, international cooperation to provide a coherent framework, inter alia, for capacity-building, technology transfer and exchange of information …’.
In 2006 the Plant Treaty’s Governing Body determined that the Global Plan of Action’s priorities were also priorities for the Plant Treaty’s Funding Strategy.28 Then in 2009 the Plant Treaty’s Governing Body invited the CGRFA, when revising the Global Plan of Action, to take into account the Plant Treaty and reflect the Plant Treaty’s provisions in the revised Global Plan of Action.29 The effect of the Plant Treaty has been to link the various developments affecting IP in the Plant Treaty, the FAO, the CBD and the Global Plan of Action. This legal architecture is referred to collectively as the FAO’s Global System on Plant Genetic Resources for Food and Agriculture.30 Reflecting the balance between the different institutions and their capacities to deliver on various aspects of the conservation and sustainable uses of genetic resources, these developments have resulted in a collection of institutions, agreements, mechanisms and instruments directed to conserving genetic resources for food and agriculture. This now comprises (monitored by the CGRFA and its Intergovernmental Technical Working Group on Plant Genetic Resources for Food and Agriculture):31
a. Institutions – The key institution is the CGRFA that provides a forum for donors or users of germplasm, funds and technology to discuss, on an equal footing, matters related to plant genetic resources.32 To further assist the CGRFA there is the Intergovernmental Technical Working Group on Plant Genetic Resources for Food and Agriculture.33 Following the adoption of the Plant Treaty the Governing Body also has a key role to ‘provide policy direction and guidance to monitor and adopt such recommendations as necessary for the implementation of the [Plant Treaty] and, in particular, for the operation of the Multilateral System’.34
b. Agreements – The relevant agreements included Plant Treaty,35 the International Code of Conduct for Plant Germplasm Collecting and Transfer,36 draft Code of Conduct on Biotechnology,37 and various gene bank standards and guidelines.38
c. Mechanisms – World Information and Early Warning System of Plant Genetic Resources for Food and Agriculture (WIEWS),39 crop and thematic networks (facilitation mechanisms),40 and the international network of ex situ collections (including the CGIAR Centers under the Plant Treaty Article 15 agreements) and in situ on-farm areas.41
d. Instruments – The relevant instruments include the State of the World’s Plant Genetic Resources for Food and Agriculture,42 the Second Report on the State of the World’s Plant Genetic Resources for Food and Agriculture,43 the Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture,44 and the Second Global Plan of Action for Plant Genetic Resources for Food and Agriculture.45
The key agreements are considered next.
Threshold Agreements
The uppermost levels of formal regulation are the international agreements. In dealing with accessing germplasm these include a general scheme under the United Nations’ CBD and a specific scheme dealing with a limited number of agriculturally significant plants under the FAO’s Plant Treaty. While each of these schemes does not establish minimum standard IP, both schemes establish norms for the ways in which IP is addressed.
Convention on Biological Diversity (CBD)
The CBD provides a scheme for access to ‘genetic resources’46 according to the authority of the Nation State ‘[r]ecognising the sovereign rights of States over their natural resources’47 with an obligation to facilitate access for ‘environmental sound uses’ without imposing restrictions that are counter to the CBD’s objectives.48 Further, access must be from countries of origin or countries that have acquired the genetic resources according to the CBD,49 on mutually agreed terms,50 with prior informed consent,51 and most importantly, taking:
legislative, administrative or policy measures, as appropriate, and in accordance with Arts 16 [access to and transfer of technology] and 19 [handling of biotechnology and distribution of its benefits] and where necessary through the financial mechanism established by Arts 20 [financial resources] and 21 [financial mechanism] with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilisation of genetic resources with the Contracting Party providing such resources.52
In resolving how the CBD might work in practice, the Conference of the Parties to the Convention on Biological Diversity agreed to the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilisation (Bonn Guidelines)53 as voluntary guidelines that apply to all genetic resources covered by the CBD (except human genetic resources),54 in a manner that is ‘coherent and mutually supportive of the work of relevant international agreements and institutions’55 and ‘without prejudice’ to the Plant Treaty.56
This was ‘merely the first step on a long and complex process to secure access and benefit-sharing’ under the CBD,57 ‘recognizing’ that ‘a package of measures may be necessary to address the different needs of Parties and stakeholders in the implementation of access and benefit-sharing arrangements’.58 This was responding to broader concerns about fairly and equitable share the benefits from using genetic resources under the CBD that had been expressed at the UN World Summit on Sustainable Development59 and at the UN General Assembly.60 The outcome of further negotiations was the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol).61
The obligations imposed by the Nagoya Protocol are essentially that Members will establish appropriate legislative, administrative or policy measures to ensure that any benefits (monetary and non-monetary) are shared with the originating holder of the resource.62 Where these are indigenous and local communities, any benefits (monetary and non-monetary) are to be shared with the indigenous and local communities concerned.63 And further, where ‘traditional knowledge associated with genetic resources’ are used, then there must be appropriate legislative, administrative or policy measures to ensure that any benefits (monetary and non-monetary) are shared with the ‘indigenous and local communities holding such knowledge’.64 The Nagoya Protocol restates the CBD’s requirements of mutually agreeable terms and prior informed consent and extends this to include the relevant ‘indigenous and local communities’ and ‘approval and involvement of indigenous and local communities’ respectively.65 Significantly, the Protocol sets out necessary procedural standards for establishing prior informed consent66 and requires the establishment of a ‘national focal point on access and benefit-sharing’67 and an ‘Access and Benefit-sharing Clearing-House’.68 The clearinghouse is anticipated to provide access to ‘model contractual clauses’, ‘methods and tools developed to monitor genetic resources’ and ‘codes of conduct and best practices’.69
The Nagoya Protocol marked a significant recognition of the existing IP standards by accepting that other international agreements continued to have force (and while not explicitly mentioned, clearly TRIPS was in mind).70
The outcome of the CBD, Bonn Guidelines and Nagoya Protocol is that IP is a matter for the parties to determine at the time they are negotiating the access and benefit-sharing arrangements as a term or condition of the access and benefit-sharing contract. In achieving this, the CBD makes general provision that IP as part of access to technology in exchange for access to genetic resources ‘shall be provided on terms which recognize and are consistent with the adequate and effective protection of IP rights’,71 and that some measures might be necessary to compensate non-government providers of IP as a part of access and benefit-sharing agreements.72 The CBD also requires cooperation to ensure IP does not ‘run counter’ to the CBD’s conservation and access and benefit sharing objectives.73
The interaction between IP and the CBD remains contentious and unresolved with internationally contested inherent conflicts between TRIPS and the CBD being that TRIPS requires genetic materials be protected by patents or a sui generis plant variety that privately appropriates genetic resources over which a country has sovereign rights under the CBD,74 and that these privileges do not also require the additional measures set out in the CBD, such as prior informed consent, mutually agreed terms and benefit sharing.75 The CBD issue also remains deadlocked in the main IP forums at the WTO with three apparent blocks: those favouring amending TRIPS, those seeing no conflict between TRIPS and the CBD, and those considering that the WTO’s Council of TRIPS is addressing the issue and that it should not be duplicated by the WTO’s Committee on Trade and Environment.76
The advance of the Nagoya Protocol was to impose requirements that the country of origin of the resources establish rules and procedures for assessing mutually agreed terms (including the terms of benefit sharing addressing IP)77 by issuing a permit78 through a competent national authority79 and information (‘[w]ithout prejudice to the protection of confidential information’)80 to an Access and Benefit-sharing Clearing-House mechanism.81 A further obligation is to ‘take appropriate, effective and proportionate legislative, administrative or policy measures’ to ensure prior informed consent, mutually agreed terms and traditional knowledge obligations have been complied with82 through ‘checkpoints’.83 The Access and Benefit-sharing Clearing-House is also intended to provide ‘[m]odel contractual clauses’84 and ‘[c]odes of conduct and best practices’.85 The Conference of Parties to the CBD provides periodic stock-take of model contract clauses,86 albeit this has not happened yet. The effect over time will be to establish norms for the ways IP is addressed and the ways IP is structured in access and benefit sharing agreements.
International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty)
The Plant Treaty provides a scheme for accessing plant genetic resources forming the ‘efficient, effective, and transparent’ Multilateral System.87 The Multilateral System includes ‘all plant genetic resources for food and agriculture listed in Annex 1 that are under the management and control of the Contracting Parties and in the public domain’,88 contributions from the ‘the ex situ collections of the International Agricultural Research Centers (IARC) of the CGIAR’89 and contributions from ‘other international institutions’.90 Access to these materials in the Multilateral System is according to a ‘Standard Material Transfer Agreement’ (SMTA) that has been adopted by the Treaty’s Governing Body.91 Other materials collected after 29 June 2004 must comply with the other international obligations, primarily the CBD’s prior informed consent and mutually agreed terms (addressed above).
The Plant Treaty makes express provision for IP, providing that access to the Multilateral System must comply with the condition that:
Recipients shall not claim any [IP] or other rights that limit the facilitated access to the plant genetic resources for food and agriculture, or their genetic parts or components, in the form received from the Multilateral System.92
Access to plant genetic resources for food and agriculture protected by intellectual and other property rights shall be consistent with relevant international agreements, and with relevant national laws.93
Further provision is made for access and transfer of technology, including that protected by IP.94 In short, the Plant Treaty provides that IP should not be claimed over materials received by the Recipient under an SMTA, albeit any changes or modifications by the Recipient may be subject to IP claims. Where materials are outside the scope of the Plant Treaty and to be used for purposes other than ‘the purposes of research, breeding and training for food and agriculture’ (excluding ‘chemical, pharmaceutical and/or other non-food/feed industrial uses’)95, then IP can be claimed. The meaning of these terms remains uncertain and will likely be clarified through the experience of contracting according to the norms established by the Governing Body (and the CGIAR Centers) for implementing the Plant Treaty.
The Institutions Effecting the Agreements
The analysis of the CBD and Plant Treaty demonstrate the ways these agreements embrace existing international commitments to IP, such as the TRIPS, and then make provision for IP to be incorporated in access and benefit sharing arrangements. The institutions putting into effect the CBD and the Plant Treaty (doing the accessing, conserving and benefit sharing) that will establish norms for these IP obligations. While under the CBD there will be the plethora of national competent authorities reporting through the periodic stock-takes of model contract clauses to the Conference of the Parties to the CBD,96 this is not readily apparent yet.97 There are, however, other institutions that have provided some insights and these are considered here.
Commission on Genetic Resources for Food and Agriculture (CGRFA)
The CGRFA was expressly established by the FAO as a part of responding to the International Undertaking.98 Key functions of the CGRFA are now a broad mandate to cover all components of biodiversity of relevance to food and agriculture99 and to monitor (with the Intergovernmental Technical Working Group on Plant Genetic Resources for Food and Agriculture)100 the implementation of the Global Plan of Action101 as part of the FAO’s Global System on Plant Genetic Resources for Food and Agriculture.102 While IP is not an explicit focus of the CGRFA, it is an issue that impacts on various aspects of their work and an acknowledged matter of interest. This has arisen as a result of the CGRFA’s involvement as the FAO’s forum for dealing with plant genetic resources and in dealing with the Global Plan of Action. These are addressed in turn.
The FAO in 1989 expressly adopted an Agreed Interpretation of the International Undertaking that recognized the role of IP providing, in part:103
Plant Breeders’ Rights as provided for under UPOV (International Union for the Protection of New Varieties of Plant) are not incompatible with the International Undertaking … A state may impose only such minimum restriction on the free exchange of materials … as are necessary for it to conform to its national and international obligations.104
At the same time the FAO endorsed the concept of farmers’ rights being:
rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources, particularly those in the International Community, as trustee for present and future generations of farmers, for the purpose of ensuring full benefits to farmers, and supporting the continuation of their contributions, as well as the attainment of the overall purposes of the International Undertaking.105
More recently, the CGRFA was the forum for revising the International Undertaking in harmony with the CBD, considering the issue of access on mutually agreed terms to plant genetic resources, including some ex situ collections and the realization of farmers’ rights.106 The outcome of the revised International Undertaking was the Plant Treaty and its provision for IP (dealt with above), and express provision recognizing farmers’ rights that is now dealt with by the Governing Body of the Plant Treaty.107 There remains, however, an ongoing interest in IP through regularly reviewing developments in all relevant forums as an international cross-sectorial policy issue,108 a key issue in the Strategic Plan 2010-2017 for the implementation of the Multi-Year Programme of Work,109 and the potential to establish further norms.110
The Global Plan of Action was adopted in 1996.111 The initial plan essentially sets out 20 priority activities in four broad groupings: (i) in situ conservation and development; (ii) ex situ conservation; (iii) the use of plant genetic resources; and (iv) institution and capacity building.112 The Global Plan of Action itself was compiled through a preparatory process involving meetings of countries providing recommendations about activities, priorities and programmes in the area of plant genetic resources of concern and various reports including the State of the World’s Plant Genetic Resources for Food and Agriculture.113 The first Global Plan of Action adopted in 1996114 was based on the first State of the World’s Plant Genetic Resources for Food and Agriculture.115 Since then the Global Plan of Action has been reviewed116 based on the Second of the State of the World’s Plant Genetic Resources for Food and Agriculture.117 The second Global Plan of Action details a broad strategic framework to enhance conservation and use of plant genetic resources for food and agriculture through establishing standards for operating germplasm banks, promoting information collections and exchanges, capacity building among contributors to a ‘true global system’, enhancing linkages, promoting in situ conservation, promoting the conservation of crop wild relatives, and promoting ‘[c]onservation and use at the community, national, regional and international levels’.118 The second plan details 18 priority activities organized into four main groups: (i) in situ conservation and management; (ii) ex situ conservation; (iii) sustainable use; and (iv) building sustainable institutional and human capacities.119
While IP is not an immediate focus of the Global Plan of Action, IP is likely to affect its implementation. This is expressly recognized in the context of building and strengthening national programs:
The creation or strengthening of links should be promoted, as appropriate, among national institutions and entities specialized in technology transfer, in order to assist national bodies to negotiate the acquisition of technologies needed to conserve, characterize, and use [plant genetic resources for food and agriculture] and associated information, in accordance with the [Plant Treaty], the CBD and [IP] rights.120
The CGRFA’s Strategic Plan 2010-2017 for the implementation of the Multi-Year Programme of Work expressly recognizes that IP is in issue121 and that any deliberations have the potential to establish norms.122 In engaging with the Plant Treaty and the CBD the role and place of IP is undoubtedly in issue.123
Governing Body
The Plant Treaty established a Governing Body to promote the ‘full implementation’ of the Plant Treaty.124 In implementing the IP obligations in a Material Transfer Agreement125 the Governing Body negotiated a SMTA that addressed IP arrangements that were to apply to accessing the Multilateral System.126 The SMTA is a contractual agreement between a Provider of materials127 covered by the Plant Treaty’s Multilateral System128 and a Recipient for use or conservation ‘for the purposes of research, breeding and training for food and agriculture’ (excluding ‘chemical, pharmaceutical and/or other non-food/feed industrial uses’).129 In providing the materials the Provider undertakes that: ‘Access to Plant Genetic Resources for Food and Agriculture protected by intellectual and other property rights shall be consistent with relevant international agreements, and with relevant national laws.’130
In return the Recipient undertakes: ‘The Recipient shall not claim any [IP] or other rights that limit the facilitated access to the Material provided under this Agreement, or its genetic parts or components, in the form received from the Multilateral System.’131 Also:
A Recipient who obtains [IP] rights on any Products [being ‘Plant Genetic Resources for Food and Agriculture that incorporate the Material or any of its genetic parts or components thereof that are ready for commercialization, excluding commodities and other products used for food, feed and processing’132] developed from the Material or its components, obtained from the Multilateral System, and assigns such [IP] rights to a third party, shall transfer the benefit-sharing obligations of this Agreement to that third party (footnote omitted).133
In short, the intention is that IP should not be claimed over materials received by the Recipient under an SMTA, albeit any changes or modifications by the Recipient may be subject to IP claims. Where materials are outside the scope of the Plant Treaty and to be used for purposes other than ‘the purposes of research, breeding and training for food and agriculture’ (excluding ‘chemical, pharmaceutical and/or other non-food/feed industrial uses’)134 then IP can be claimed. This analysis also shows that the SMTA (and Plant Treaty) are limited in scope to ‘facilitated access’ to the materials in the Multilateral System only for use or conservation for the purpose of ‘research, breeding and training for food and agriculture’.135 Any other uses, including ‘chemical, pharmaceutical and/or other non-food/feed industrial uses’,136 are outside the bounds of the SMTA and will require a separate agreement with no express obligations to benefit-share under the Plant Treaty. In short, the Plant Treaty and SMTA limit the scope to material provided for the purpose of ‘research, breeding and training for food and agriculture’. Material provided for these other purposes might be provided on more or less favourable and different terms and conditions (albeit subject to the mandatory obligations of the CBD from 29 December 1993). The meaning of these terms ‘the purposes of research, breeding and training for food and agriculture’ (excluding ‘chemical, pharmaceutical and/or other non-food/feed industrial uses’) are unclear leaving considerable scope for access and benefit sharing outside the bounds of the Plant Treaty and its mandatory benefit sharing arrangements in the SMTA.
The CGIAR Centers
A central element to the Plant Treaty was the intention that it should include the germplasm collections of the CGIAR Centers. To this end the Plant Treaty expressly provided: ‘The Multilateral System shall also include the plant genetic resources for food and agriculture listed in Annex I and held in the ex situ collections of the International Agricultural Research Centers of the [CGIAR].’137
The Plant Treaty then makes provision for each of the CGIAR Centers to enter into agreements with the Plant Treaty’s Governing Body, making all the CGIAR Centers’ ex situ collections available under the Plant Treaty.138 Agreements have been entered into and the CGIAR Centers’ collections are now part of the Plant Treaty’s Multilateral System accessed using the Plant Treaty’s SMTA.139 Albeit these collections are within the Plant Treaty’s Multilateral System,140 the CGIAR centers maintain an alternative evolving legal architecture. This legal architecture reflects the delicate balance between the CGIAR centers conducting their agricultural research activities and the funders providing the necessary funding for that research.
The CGIAR was established in 1971 under the auspices of the World Bank with funding from a range of sources including the FAO and the United Nations Development Program (UNDP).141 As such, CGIAR started out as a funding arrangement for agricultural research targeting various existing institutions and programs that subsequently evolved into institutions that developed and maintained ex situ collections.142