1. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Legal aspects of (public domain) genetic resources as part of the Global Strategic Cacao Collection Jan Engels

2. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 CBD provides overall legal framework Entered into force in December 1993 Objectives relate to conservation, sustainable use and equitable sharing of benefits Tends to favour bilateral arrangements Based on the concept of national sovereignty over PGRFA within borders of a state; and Each country to set its own terms of access to those resources General (Bonn) guidelines on ABS established CBD requested FAO to deal with two outstanding issues, i.e.  the legal status of ex situ collections acquired prior to the entry into force of CBD (i.e. the International Treaty), and  Farmers’ Rights (now a national responsibility)

3. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 International Treaty on PGRFA Entered into force June 2004 More than 115 countries have ratified Multilateral System of Access and Benefit-sharing Facilitated access for germplasm included in Annex I (i.e. 35 food crops and 29 forage species). NB. Cacao is NOT included in Annex I! Article 15 deals with other species held in trust by IARC Centres – to be treated in same manner New standard MTA agreed upon Non-Annex I material: ABS procedures of CBD Intention to use Art. 15.5 for cacao (as CATIE and CRU)

4. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Current situation of cacao genetic resources Two international collections (already recognized by IBPGR as base collections) : –CRU, University of the West Indies, Trinidad –CATIE, Costa Rica Many national and/or institutional (?) collections (in Latin America, West Africa and Asia) Private collections (Nestle, others?) Material in quarantine station(s) Plenty of material in farmers’ fields and in nature

5. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Current situation of cacao genetic resources Legal status of various collections: international collections: predominantly in public domain; accessions with questioned status not “designated” –CRU in process of concluding formal agreement with GB of IT through Government of Trinidad and Tobago –CATIE signed agreement with Governing Body of IT Material in quarantine station(s): public domain material National collections: under national sovereignty; discussions with Brazil and Ecuador started to identify accessions Private sector collections: available at discretion of owners Material in farmers’ fields : at discretion of farmers Material in nature: under national sovereignty

6. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Current exchange practices of cacao GR Public domain material:  freely available  use of SMTA proposed  some accessions widely distributed  following international quarantine procedures (i.e. Reading Centre) National material:  “informal” exchange  no (or limited) use of (S)MTA  usually no quarantine procedures followed Private sector material: any exchange? Countries are reluctant or not willing to provide formal access

7. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Current exchange practices of cacao GR Current situation is not satisfactory:  Not in agreement with existing legal frameworks  Facilitates or leads to bio-piracy  Not sustainable; creates uncertainty  No basis for equitable benefit-sharing  Risky as quarantine measures are not followed  No incentive for conservation to countries ▬► Important to achieve legal status for cacao ▬► Proposal to follow same/similar system as CGIAR as foreseen in CacaoNet

8. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Some salient features of CGIAR in-trust collections 1994 agreements concluded between Centres and FAO 1995 and 1998 First and Second Joint Statements of FAO and CG Centres on interpretations of the Agreements 1998 Guidelines for the designation of accessions under the FAO Agreement 1998Material Transfer Agreements (MTA) for PGR held in trust, incl. steps for implementing MTA 1999 Guidelines for germplasm acquisition agreements 2003 Interim MTA, in order to comply with conditions agreed upon in International Treaty

9. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Some salient features of CGIAR in-trust collections (cont.) International Treaty enters into force in June 2004 1 st meeting Governing Body of IT decides SMTA, recognized legal status of IARCs collections Agreements between IARCs and GB signed on 16 October 2006 Arrangements being made to use SMTA of the IT also for the public domain cacao germplasm (i.e. CATIE, CRU and Reading)

10. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Elements of Agreements between IARCS and GB Authority of Governing Body of IT to provide policy guidance to Centres recognized Collections to be maintained in accordance with international standards (i.e. Genebank Standards) Germplasm accessions, and related information, to be made available without restrictions and with SMTA Centres and recipients not to claim legal ownership over designated germplasm, and Not to seek any intellectual property rights over designated germplasm or related information

11. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Implementation steps of FAO-CGIAR Centre Agreements Designating individual accessions (incl. updating list of designated accessions every two years) Acquisition and transfer agreements Monitoring compliance and enforcement Progress reporting to FAO Commission on GRFA Promoting distribution and use (e.g. through research and information sharing - SINGER) Article 15 of the International Treaty establishes status of the IARC collections (non-Annex I spp.)

12. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Summary of CGIAR policy on IPP relating to Genetic Resources No IPP permitted on designated germplasm under CGIAR- FAO agreement Centres to follow a defensive policy with respect to IPP on derivatives, i.e. when needed to ensure/promote international public good Plant Variety Protection permitted on derivatives of designated germplasm Patent protection on derivatives (genes, gene constructs, traits, varieties) permitted only with Centre permission Guiding principles on handling GMOs

13. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Perceived advantages of placing germplasm under auspices of FAO Incorporating “new” germplasm collections in the International Network of Ex Situ Collections under the auspices of FAO will have a number of benefits, including: Collections obtain a legal status comparable to those of the other International Centres of the CGIAR system which form part of the International Network of Ex Situ Collections, and hence could resolve the questions on status of materials gathered before the entry into force of the CBD; It will lay the ground for adherence to Article 15 of the IT (only for international research institutions – also CATIE and CRU - ); Consequently, clear and transparent ABS conditions (SMTA) No need for further “informal” exchange; adherence to plant quarantine measures; less/no bio-piracy

14. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Perceived advantages of placing germplasm under auspices of FAO It will strengthen the global network of Ex Situ Collections for the benefit of the global farming community; The contract with FAO will increase the "visibility" of institute and its collections in the international community and will result in a new dimension of recognition of and trust in the institute by the outside world (i.e. management of collections according to established international standards); It will strengthen the collaboration between international institutes and Bioversity/CGIAR, thus benefiting institution’s collections; Foregoing point might well increase the likelihood of accessing new funds;

15. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Perceived advantages of placing germplasm under auspices of FAO Signing agreements now with FAO, and subsequently with the Governing Body of the International Treaty will help guarantee access, under the terms of the Treaty, to a wide range of public-domain germplasm, as defined in Annex I and the designated germplasm that is currently part of the International Network ; It would emphasize the institutes’ role in providing important platform for CacaoNet, and thus to the benefit of its member countries; The above would provide basis for closer association with Global Crop Diversity Trust (endowment fund!) ▬► more sustainable arrangements!

16. Expert Consultation on Development of a Global Cacao Conservation Strategy University of Reading, UK 10-13 March 2008 Legal status collections - summary of current status a.Working towards Global Collection to obtain legal status comparable to that of CG collections, under Art. 15.5 of Treaty as non-Annex I crops b.International collections at CATIE and CRU (and Reading) under auspices of GB of Int. Treaty c.Discussions with countries (i.e. Brazil and Ecuador) to add selected accessions of nat. coll. d.Use of SMTA, wherever applicable e.Through awareness stress importance of CacaoNet partners to follow same procedures