The genetic resources of plants are a fundamental part of the rich biodiversity of our planet.
Plant breeding is the science of recombining plant genetics into new varieties with desirable traits. To create new varieties, thousands of genetic resources are screened in observation and disease trials to find those with interesting characteristics. Plant breeders, therefore, are dependent on plant genetic resources and need access to the widest genetic diversity available. For these reasons, conservation of, access to and sustainable use of plant genetic resources are of crucial importance for plant breeders. Plant breeders are directly or indirectly involved in the conservation and management of plant genetic resources and ensure the sustainable use of such resources via the process of plant breeding itself.
In the context of plant breeding, access to genetic resources and the sharing of benefits arising out of their utilization is regulated by two international instruments: the Convention on Biological Diversity (CBD) and its Nagoya Protocol, and the FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA, “Treaty”).
The Convention on Biological Diversity is an international agreement setting out rules on conservation and sustainable use of genetic resources, and on access to such genetic resources and the fair and equitable sharing of benefits arising out of their utilization. It was adopted in 1992 and entered into force at the end of 1993. In 2010 an implementing protocol, the Nagoya Protocol, was adopted with the view of further detailing rules on access and benefit sharing.
Under the regime defined by the Convention on Biological Diversity and its Nagoya Protocol, genetic resources are accessed under the rules of prior informed consent and mutually agreed terms which must be negotiated and obtained in bilateral discussions between the provider country and the user of the genetic resource, if so decided by the provider country. The scope of the CBD/Nagoya Protocol-type ABS regime extends to all genetic resources including plant genetic resources, although its rules only apply to those plant genetic resources which are not covered by other specific access and benefit-sharing instrument. In practical terms, this means that all plant genetic resources that do not fall under the specific access and benefit-sharing instrument of the Treaty are accessible under the rules of CBD/Nagoya Protocol.
In the European Union, the compliance pillar of the Nagoya Protocol has been implemented via EU Regulation 511/2014, providing for a due diligence obligation with which users of genetic resources must comply if they are using genetic resources within the EU territory. This regulation is complemented by an Implementing Regulation, a horizontal guidance document and several sectoral guidance documents.
The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGFRA, “Treaty”) is an international agreement adopted under the aegis of the United Nations’ Food and Agricultural Organization (FAO) in 2001. It entered into force in 2004. The Treaty has created a Multilateral System (MLS) of access and benefit sharing providing facilitated access to plant genetic resources for food and agriculture.
The MLS of the Treaty provides access to genetic resources belonging to crops that are listed on the Annex I of the Treaty. The MLS is based on the principle of multilateralism allowing users to access all material available in the MLS under the same pre-set conditions that are laid down in the Treaty’s standard Material Transfer Agreement (sMTA).
Likewise, the Treaty’s benefit-sharing mechanism recognizes one of the basic principles of plant breeding which is the free availability of genetic material for further breeding, also embedded in the UPOV-type plant variety protection system.
Indeed, with a view to protect and promote biodiversity, breeders may share benefits. Benefit sharing can take many forms, it can be mandatory or voluntary, it can also be in the form of money or through activities that benefit stakeholders.
Mandatory benefit sharing often means that the plant breeder must commit to pay a sum of money in exchange for the right to breed with genetic resources that will be used to develop and commercialize new crop varieties. On the other hand, Voluntary benefit sharing can mean plant breeders providing financial support to national gene banks, conservation programmes or other projects but can also include in kind activities.
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Sources:
- Convention on Biological Diversity (CBD):
https://www.cbd.int - FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA): http://www.fao.org/plant-treaty/en
