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plant genetic resources for food and agriculture - FAO

plant genetic resources for food and agriculture - FAO

ACCESS TO PGR, THE

ACCESS TO PGR, THE SHARING OF BENEFITS ARISING OUT OF THEIR UTILIZATION AND THE REALIZATION OF FARMERS' RIGHTS genetic resources, including prior informed consent of the national government providing access and of the local communities involved, along the lines of the Bonn Guidelines adopted in 2001. The OAU Model Legislation deals in more detail with the rights of local communities and Farmers’ Rights and also covers PBR. Both the OAU Model legislation and the ASEAN Framework Agreement take the form of guidelines for the establishment of ABS regimes by national governments in the region; however no African country has yet enacted law following the OAU model. The Andean Community Decision 391, on the other hand, requires each Andean Community member to enact legislation that is consistent with it. To the extent that the regional initiatives set out detailed procedures for ABS based on the bilateral model, there may well be a need for Parties to the ITPGRFA to consider revising them to take into account the MLS of ABS established under the ITPGRFA. Compliance: one of the problems facing national ABS regimes has been difficulty in ensuring compliance with and enforcing the conditions placed on the use of the genetic resources, especially once the material has been accessed and has left the country. Taking legal action to enforce the agreed conditions of ABS in foreign courts is very expensive and can be beyond the resources of many countries. Legal recourse may be necessary not only where genetic resources have been accessed in contravention of national legislation or used in contravention of the agreed conditions but also when, following initial research, the material is used for purposes that were not covered in the original agreement, such as commercial exploitation. It was partly for these reasons that the role of the Third Party Beneficiary was conceived in the SMTA under the MLS established under the ITPGRFA. 35 While the issue of compliance remains complex, the proposal for a certificate of origin/source/legal provenance is one approach being suggested in international fora as a means of alleviating at least some of the concerns, although its feasibility remains in some doubt. The requirement for such a certificate has been taken up in the ABS legislation of a number of developing countries, for example Costa Rica and Panama. Disclosure of origin requirements have been enacted in the patent legislation of a number of European countries, including Belgium, Denmark, Germany, Norway, Sweden and Switzerland. 7.4 Farmers’ Rights under the ITPGRFA The ITPGRFA deals with the issue of the realization of Farmers’ Rights, a concept originally launched in the interpretations of International Undertaking on PGR. Recognizing that the responsibility for realizing Farmers’ Rights rests with national governments, Article 9 of the ITPGRFA calls on Contracting Parties to take appropriate measures to protect and promote Farmers’ Rights. For the first time in an international instrument, the possible scope of Farmers’ Rights is clarified, as including: the protection of traditional knowledge relevant to PGRFA; the right of farmers to equitably share benefits that result from their use; and their right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of PGRFA. The ITPGRFA does not limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law. Recent debates on the implementation of Farmers’ Rights have focused on the distinction between the ‘ownership’ approach and the ‘stewardship’ approach. The former places emphasis on the right of farmers to be rewarded for genetic material obtained from their fields and used in commercial varieties and the latter places emphasis on the rights that farmers need to have in order to allow them to continue as stewards and innovators of agrobiodiversity. Both approaches are clearly reflected in the present state of national implementation of Farmers’ Rights as described in Chapter 5. The Third Meeting of the Governing Body of the ITPGRFA, held in Tunis in 2009, 36 reviewed the state of implementation of Article 9 of the ITPGRFA dealing with Farmers’ Rights. As Contracting Parties had provided only a small number of submissions, describing the status of implementation, the Secretariat of the ITPGRFA was requested to convene 175

CHAPTER 7 regional workshops on Farmers’ Rights to discuss national experiences in implementing the Article. 7.5 Changes since the first State of the World report was published Since the publication of the first SoW report, there has been a great deal of activity with respect to the development of the international and national legal and policy frameworks for ABS. Less progress has been made overall in the implementation of Farmers’ Rights. Major changes that have occurred in these areas include: • perhaps the most far-reaching development has been the entry into force of the ITPGRFA in 2004. This International Treaty establishes an MLS of ABS that facilitates access to PGRFA of the most important crops and forages for food security; as of February 2010, there were 123 Parties to the ITPGRFA; • negotiations have been initiated by the Contracting Parties to the CBD aimed at developing an international regime on ABS. These are scheduled to be finalized before the 10th Meeting of the Conference of Parties in 2010; • discussions on certain matters related to ABS are also taking place in other fora such as the TRIPS Council, WIPO and WHO; • the FAO CGRFA adopted a Multi-Year Programme of Work in 2007 and recommended that “FAO continue to focus on ABS for genetic resources for food and agriculture in an integrated and interdisciplinary manner…”, including PGRFA, along with genetic resources of farm animals, microbes and beneficial insects, fish and forest species; • in February 2010, the CBD Database on ABS Measures listed 32 countries with legislation or regulations addressing ABS. Of these, 22 had adopted new laws or regulations since 2000. Most of these have been developed in response to the CBD rather than the ITPGRFA. 176 THE SECOND REPORT ON THE STATE OF THE WORLD’S PGRFA 7.6 Gaps and needs While much has been achieved, the following is a list of some of the areas that still require attention: • at the global level, there is still a great deal of work to be done in international fora on defining a comprehensive international ABS regime. Any new international regime needs to take into account the specific needs of the agriculture sector and other sectors; • while the special requirements of PGRFA are provided for in the ITPGRFA, more needs to be done to raise awareness of the importance of the ITPGRFA among governments and to encourage wider participation therein; • many countries have expressed the need for assistance, both with regards to advice and capacity building for the implementation of the ITPGRFA and its MLS for ABS. Assistance is also needed in ensuring a proper interface between the ITPGRFA and the CBD; • potential difficulties remain in implementing ABS in the context of material found in in situ conditions, even when that material falls within the MLS; • there is a need for stronger coordination in the development of policies, legislation and regulations among the various ministries, state, regional or provincial governments and other institutions having responsibility for different aspects of PGRFA; • several countries have expressed the need for assistance in developing policies, legislation, regulations and practical measures for implementing Farmers’ Rights. While a few countries are experimenting in this area, to date there are no wellproven models that could be widely adopted. Existing examples of such legislation need to be evaluated and information made available on their effectiveness and how they function in practice; • one way to realize Farmers’ Rights is through making available better varieties. Plant breeding and seed dissemination systems need to be strengthened and greater attention paid to the needs and circumstances of resource-poor farmers, the guardians of much genetic diversity. Regulatory systems also need to be responsive to the needs of farmers.

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    The Second Report on THE STATE OF T

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    I hope and trust that the informati

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    5.5 Changes since the first State o

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    Appendix 2 Major germplasm collecti

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    3.2 Holders of the six largest ex s

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    The CGRFA requested that the SoWPGR

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    Chapter 7 - Access to plant genetic

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    Executive summary �his report des

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    documentation and characterization

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    Given the high level of interdepend

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    TABLE 1.2 Comparison between the co

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    CHAPTER 1 in national agricultural

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    FIGURE 1.1 Global priority genetic

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    14 CHAPTER 1 NEAR EAST effective at

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    CHAPTER 1 comparisons, or use the i

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    18 CHAPTER 1 FIGURE 1.3 Interdepend

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    CHAPTER 1 even national, germplasm

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    26 CHAPTER 1 X. & Li, Z. 2006. Gene

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    THE STATE OF EX SITU CONSERVATION 1

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    98 CHAPTER 4 including rice, maize

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    CHAPTER 4 biosafety monitoring and

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    CHAPTER 4 Different plants are rich

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    CHAPTER 4 breeding activities over

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    118 CHAPTER 4 16 Op cit. Endnote 8.

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    Chapter 5 The state of national pro

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    STATUS BY COUNTRY OF NATIONAL LEGIS

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    STATUS BY COUNTRY OF NATIONAL LEGIS

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    STATUS BY COUNTRY OF NATIONAL LEGIS

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    MAJOR GERMPLASM COLLECTIONS BY CROP

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    THE STATE-OF-THE-ART: METHODOLOGIES

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    THE STATE-OF-THE-ART: METHODOLOGIES

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    Appendix 4 State of diversity of ma

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    APPENDIX 4 some country reports. 6

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    APPENDIX 4 option for perennial tax

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    APPENDIX 4 regeneration of existing

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    APPENDIX 4 An operational comprehen

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    APPENDIX 4 FIGURE A4.2 Global yield

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    APPENDIX 4 Role of crop in sustaina

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    APPENDIX 4 and Myanmar (3 percent).

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    APPENDIX 4 progenitor is the wild s

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    appendiX 4 Ex situ conservation sta

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    APPENDIX 4 Documentation, character

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    APPENDIX 4 The two global chickpea

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    APPENDIX 4 in collections, absence

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    APPENDIX 4 FIGURE A4.5 Global yield

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    338 APPENDIX 4 are also conserved.

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    340 APPENDIX 4 WebPDF/Crop percent2

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    342 APPENDIX 4 90 Op cit. Endnote 2

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    344 APPENDIX 4 159 GCDT. 2007. Glob

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    346 APPENDIX 4 217 Op cit. Endnote

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    348 APPENDIX 4 291 Op cit. Endnote

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    350 APPENDIX 4 366 Ibid. Endnote 35

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    BAAFS Beijing Academy of Agricultur

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    CN Centre Néerlandais (Côte d’I

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    DTRUFC División of Tropical Resear

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    HRIGRU Horticultural Research Inter

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    INIA CARI Centro Regional de Invest

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    IVM Institute of Grape and Wine «M

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    NISM National Information Sharing M

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    REHOVOT Department of Field and Veg

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    SRI Sugar Crop Research Institute,

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    WCMC World Conservation Monitoring

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