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W. E. SIEBECK
restriction, led to the subsequent narrowing of the free exchange prnciple. In 1989, FAO adopted
two resolutions 11 providing an „agreed interpretation“ according to which plant breeders' rights
are not incompatible with the Undertaking, meaning that such materials remained outside the
Undertaking. In exchange for this concession to industrial countries, developing countries won
endorsement of the concept of farmers' rights 12 . To this date farmers' rights remain a moral but
unfulfilled commitment given by the industrial countries to recognize and reward „the enormous
contribution that farmers of all regions have made to the conservation and development of plant
genetic resources". FAO has established a Fund for Plant Genetic Resources which has received
minimal contributions.
The concept of farmers' rights and its acceptance in the FAO marks the first time that a quid-proquo
rationale was introduced into the discussion on access to germplasm. Accordingly, developed
countries will owe more for its use than payment of the cost of its conservation. 13
The free-flow principle was further restricted though not formally abandoned when in 1991 FAO
adopted another resolution 14 which, while recognizing the common heritage principle, subordinates
it "to the sovereignty of the states over their plant genetic resources." It suspends the free
availability rule by declaring that „conditions of access to plant genetic resources need further
clarification".
Thus, the credo of the common heritage of mankind, though deprived of much of its practical
content, formally survives in FAO. It has found no place in the Biodiversity Convention.
4 International Research Collaboration under the Aegis of the Biodiversity Convention
The Convention on Biological Diversity was adopted by the Earth Summit in Rio de Janeiro in
June 1992 which represented the first major international attempt to establish a blueprint of actions
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Resolutions 4/89 and 5/89 adopted by the Twenty-fifth Session of the FAO Conference, Rome, 11-29
November, 1989 and incorporated into the International Undertaking as Annexes 1 and 11, respectively.
'Farmers' rights mean rights arising from the past, present and future contributions of farmers in
conserving, improving, and making available plant genetic resources, particularly those in the centers of
origin/diversity. These rights are vested in the International Community, as trustee for present and future
generations of farmers ..." (Resolutions 5/89 ibid).
It should be noted that the farmers' rights concept, by definition, only covers genetic material in the hands
and on the land of farmers, and not its weedy relatives which are of increasing importance in
biotechnology research.
Resolution 3/91 adopted by the Twenty-sixth Session of the FAO Conference, Rome, 9-28 November
1991 (now Annex 3 to the International Undertaking).