A key international agreement governing many of the world’s most important crop diversity collections was recently extended by 165 countries, ensuring that this diversity, which is critical for crop improvement will remain in the public domain for the foreseeable future.

Today, the Future Harvest Centres of the CGIAR conserve more than 500,000 samples of seeds and other plant parts in storage facilities called genebanks. The Centres do not own the material in the collections but serve as trustees or custodians for them on behalf of the world community. An agreement with the Food and Agriculture Organization of the United Nations spells out the Centres’ responsibilities as trustees. Since the conclusion of the agreement in 1994, it has been reviewed and endorsed by countries on a number of occasions at meetings of FAO’s inter-governmental Commission on Genetic Resources for Food and Agriculture. In addition, civil society organizations have consistently voiced strong support for the agreements. In October, 2002, the agreement, which comes up for renewal every four years, was extended for an additional four years by the mutual consent of the FAO Commission and the Centres.

The agreements explicitly recognize the principle that the crop diversity collections are in the public domain and remain available to all users. The agreements also point to the future. From the beginning they were seen as interim agreements that would be modified when a comprehensive approach to managing crop diversity was adopted through an international treaty on the subject. The International Treaty on Plant Genetic Resources for Food and Agriculture was adopted by the FAO Conference in November 2001 and will come into force following ratification by 40 countries. It relates to both national and internationally held collections of crop resources.

The CGIAR was actively involved in supporting the negotiations for the new Treaty, and it has warmly welcomed its adoption. It has also signalled its intention to conclude a new agreement with the Treaty’s Governing Body so as to place Center-held collections squarely and formally under the Treaty.

Since the 1994 agreement was signed with FAO, the Future Harvest Centres have distributed more than 600,000 samples of so-called “in trust” plant material from its genebanks, the overwhelming majority to public sector plant breeders in developing countries. These samples have been distributed under the terms of a Material Transfer Agreement (MTA) endorsed by the FAO Commission. This MTA, soon to be updated in line with the new Treaty, aim to ensure that recipients will not take out intellectual property protection on in-trust material nor any other legal action that would prevent others from accessing the same material from the Centres in future.

The MTA serves as a contract between the Centre providing material and the recipient. Unfortunately, the Future Harvest Centres cannot guarantee that everyone will always fully comply with the terms of the contract, any more than a municipal authority can guarantee that all motorists will always stop at a red traffic light. In this case however, rates of compliance appear to be rather higher than those of motorists. The Centres have investigated all instances of possible violations of the MTA. A small number of situations have arisen – amounting to somewhat less than 0.001% of all transfers – in which Centres felt that the MTAs had been or were in the process of being violated. The Future Harvest Centres took action in cooperation with FAO, and all situations were successfully resolved. FAO has subsequently thanked the Centres for their responses to these cases and acknowledged their commitment to the 1994 in-trust agreement.

While the Future Harvest Centres have expressly foresworn any claims of ownership over the in-trust materials, they have accepted certain obligations concerning the enforcement of the MTAs. Due to the high cost of litigation—and the fact that the Centres do not own but simply conserves and makes available crop diversity to users as a service—it has been agreed with FAO that Centres would reserve the right to enforce the MTAs by litigation if necessary, but that they would not be required to do so. In practice, litigation has never been necessary.

The CGIAR is not aware of any current or on-going violation of any MTA covering any of the 700,000 samples distributed to date. Indeed, though the few cases involving possible violation have been and continue to be widely reported, all have been resolved to the satisfaction of FAO and the CGIAR.

Crop diversity is a matter of great public concern. This is not surprising given the fact that this diversity provides the biological underpinning for global agriculture. The interdependence of countries with regard to this diversity—no country could survive without access to the crop resources originating outside of its borders—just makes the concern more profound.  Historically, this concern has manifested itself in a number of ways. Countries have asserted their sovereignty over the material. Moreover, farmers and plant breeders have claimed various rights, as well. Countries, through the Treaty, have acknowledged and sought to realize many of these claimed rights, an approach the CGIAR and most international and non-governmental organizations have supported.

One thing has remained constant – at least since the early 1980s – and that has been the commitment and resolve of both the CGIAR and countries that the genetic resources held by the Future Harvest Centres remain available for all to use. This is the only way that the “public good” nature of the collections can be ensured.