WORLD TRADE
ORGANIZATIONWT/CTE/W/146
23 June 2000
(00-2557)
Committee on Trade and Environment Original:  English
FAO INTERNATIONAL UNDERTAKING ON PLANT GENETIC RESOURCES
Communication from the FAO
The following communication, dated 20 June 2000, has been received from the Commission
on Genetic Resources for Food and Agriculture of the Food and Agriculture Organization (FAO),
with the request that it be circulated to Members.
_______________
1. This letter is in response to the request made at the WTO Committee on Trade and
Environment, held on 29 February - 1 March 2000 by the representative of Thailand, on behalf of
ASEAN, for a clarification from the FAO on the International Undertaking on Plant Genetic
Resources, particularly as to whether the revised text of the Undertaking would become a legally-binding instrument, and what were the advantages and disadvantages of this Undertaking being a
stand-alone text, or a protocol to the Convention on Biological Diversity (CBD).
2. On the question of whether the International Undertaking will become a legally-binding
agreement, I should like to draw your attention to the record of the FAO Conference,
Rome, 12-23 November 1999, where:
“The Conference also confirmed that the negotiations on the
revision of the International Undertaking would proceed on the basis
that the Undertaking would take the form of a legally-binding
instrument, closely linked to FAO and the Convention on Biological
Diversity”.
3. Annex I contains the full text of the section of the Conference Report regarding the
International Undertaking.
4. With regard to the final legal form that the International Undertaking will take, please note
that this matter is still under discussion in the negotiations.  The range of options for the legal status of
the revised International Undertaking, including discussion of the relative advantages of the
International Undertaking being a stand-alone text , or a protocol to the CBD, is considered in
document CGRFA-8/99/9, Revision of the International Undertaking on Plant Genetic Resources:
legal and institutional options .  This document was submitted to the FAO Intergovernmental
Commission on Genetic Resources for Food and Agriculture, at its last regular session
on 19-23 April 1999.  This document is attached as Anne x II and is also available at our web-site, at
http://www.fao.org/ag/cgrfa/docs8.htm .
5. Finally, please note that the Conference of the Parties to the CBD has been informed regularly
of progress in the negotiations for the revision of the International Undertaking, and has repeatedly
stressed its support.  In Decision II/15, in expressing its support, the Conference of the PartiesWT/CTE/W/146
Page 2
recognized the special nature of agricultural biodiversity, its distinctive features and problems needing
distinctive solutions.  In Decision III/11, the Conferen ce of the Parties also affirmed its willingness to
consider a decision by the FAO Conference, that the revised International Undertaking should take the
form of a protocol to the Convention, should it take that decision.  The matter has not yet been
considered by the FAO Conference.
6. The Commission is at the disposal of the Committee on Trade and Environment, should
Members wish any further information.WT/CTE/W/146
Page 3
ANNEX I
REPORT OF THE THIRTIETH SESSION OF THE FAO CONFERENCE1
ROME, 12-23 NOVEMBER 1999
International Undertaking on Plant Genetic Resources for Food and Agriculture2 – Item 8
1. The Conference considered that the successful completion of the negotiations for the revision
of the International Undertaking, as an international instrument for the conservation and sustainable
utilization of plant genetic resources for food and agriculture, and for access to these resources, was
essential in ensuring global food security and sustainable agriculture for present and future
generations.
2. The Conference considered that the Undertaking was at the meeting point between
agriculture, the environment and commerce, and agreed that there should be consistency and synergy
in the agreements being developed in these differen t sectors.  It felt that early success in these
negotiations should allow the agricultural sector to shape solutions that took its specific needs into
account.
3. The Conference expressed satisfaction with the progress made in the negotiations by the
Commission on Genetic Resources for Food and Agriculture and its Contact Group during 1999,
particularly in regard to the consensus reached on the text on Farmers’ Rights.  It considered,
however, that much work was still needed in order to finalize the negotiations in the year 2000.  It
expressed its appreciation for the untiring efforts of its Chairman, Ambassador Fernando Gerbasi, andits desire that he carry the process through to completion.  It agreed that the Chairman’s Elements
developed in Montreux, Switzerland, in January 1999 should continue to provide the framework in
which to seek further consensus on the text of the revised Undertaking.  It appealed for the
Negotiating Parties to show flexibility and a spirit of constructive compromise in this regard.
4. The Conference agreed that a cornerstone of the revised Undertaking should be the
Multilateral System for Access and Benefit-Sharing.
5. The Conference also confirmed that the negotiations on the revision of the International
Undertaking would proceed on the basis that the Undertaking would take the form of a legally-
binding instrument, closely linked to FAO and the Convention on Biological Diversity.  It  recognized
that the full implementation of the Global Plan of Action for the Conservation and Sustainable
Utilization of Plant Genetic Resources for Food and Agriculture  would be greatly facilitated by the
funding strategy of the International Undertaking.
6. The Conference expressed its gratitude to the Governments of Germany, Japan, Norway,
Spain, Sweden, Switzerland, the United Kingdom and the United States of America for their generous
contributions to the process in 1999.
7. The Conference requested that the text of the revised International Undertaking be finalized,
as planned, for submission to the Hundred and Nineteenth Session of the FAO Council in
November 2000.  It appealed to all countries to facilitate this process.  In this spirit, Members stressed
the importance for countries that are developing releva nt legislation to do so in such a way that would
enable them to take into account and allow for the elements of this new international agreement.
                                                     
1 Draft Report of the Plenary Part V (from Commission I).  Adopted without change.
2 C 99/9; C 99/LIM/21; C 99/I/PV/4; C 99/I/PV/7.WT/CTE/W/146
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8. The Conference recognized that progress was subject to the provision of extrabudgetary funds
for further negotiating meetings of the Chairman’s Contact Group and the Commission.  It therefore
appealed to countries to provide the funds necessary to prepare and run the meetings, and to facilitate
the participation of developing countries.  It expressed appreciation for Japan’s announcement of afurther contribution towards the costs of the next negotiating session of the Contact Group.WT/CTE/W/146
Page 5
ANNEX II
REVISION OF THE INTERNATIONAL UNDERTAKING
ON PLANT GENETIC RESOURCES:  LEGAL
AND INSTITUTIONAL OPTIONS
Eighth Regular Session of the Commission on Genetic Resources for Food and Agriculture
Rome, 19-23 April 1999
Item 4 of the Draft Provisional Agenda
(document CGRFA-8/99/9, November 1998)
1. INTRODUCTION
1. At its First Extraordinary Session in No vember 1994, the Commission on Plant Genetic
Resources, now renamed the Commission on Genetic Resources for Food and Agriculture (CGRFA)
agreed that the negotiations for the revision of the International Undertaking on Plant Genetic
Resources (the Undertaking) should proceed in three stages.  The first was the integration of the threeinterpretative annexes into the Undertaking and bringing it into harmony with the Convention on
Biological Diversity (the Conventi on).  The second was the consideration of the two issues of access
to plant genetic resources, including access to collections acquired outside the Convention and the
realization of farmers’ rights.  The third stage was to consider legal and institutional options,
including, in particular, the legal status of the renegotiated Undertaking and related institutionalquestions.  The present document discusses these options.  It is a development of the options paper
presented to the Sixth Commission in June 1995 as  document CPGR6\95\9, though not yet discussed
by the Commission.
2. OPTIONS FOR THE LEGAL STATUS OF THE RENEGOTIATED UNDERTAKING,
IN HARMONY WITH THE CONVENTION ON BIOLOGICAL DIVERSITY
2. There are basically five main options.
(i) Continuation of the present legal status of the Undertaking
3. The original Undertaking, and its three annexes, were adopted by the FAO Conference as
voluntary, non-legally-binding inst ruments.  Should Member Nations wish to preserve its non-legally-
binding nature, then the renegotiated Undertaking could be submitted to the FAO Conference,
hopefully at its Thirtieth Session in November 1999, for adoption in the same way as the original
Undertaking and annexes.
4. Non-legally-binding instruments are normally easier to agree upon than binding instruments.
In the case of the International Undertaking, the initial reluctance of Member Nations to commit
themselves to a legally-binding instrument was due, at least in part, to the reservations that some
Governments had regarding the compatibility of the International Undertaking with their own systems
of plant breeders’ rights, reservations which in mo st cases have been either withdrawn or otherwise
overcome through the adoption of the interpretative annexes.
5. While voluntary instruments may be easier to adopt in international fora, they have
concomitantly less impact on government or private sector behaviour, and provide less security for
transactions involving substantial investments or other transfers of funds.  If the revised Undertaking
is to provide for assured access to plant genetic resources and benefit-sharing under a multilateralsystem, including financial mechanisms, then it may well be necessary to think in terms of a legally-
binding instrument.WT/CTE/W/146
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(ii) Adoption as a legally-binding agreement under Article XIV of the FAO Constitution
6. Article XIV of the FAO Constitution provides for the approval of global agreements related
to food and agriculture by the FAO Conference and their submission to FAO Members for their
acceptance.  Agreements are normally adopted by the FAO Conference on the recommendation of a
technical conference or series of technical m eetings, such as those of the FAO Commission on
Genetic Resources for Food and Agriculture.  They enter into force on the deposit of the required
number of acceptances in accordance with the provisions set down in the agreement.  Under
Article XIV of the Constitution, agreements may prov ide for participation also by non-member States,
provided that they are members of the United Nations or a specialized agency or the International
Atomic Energy Agency.  Such agreements do not provide for participation by entities other than
States, although such participation in some form  or other would not be precluded, e.g., through
participation in a scheme set out in an annex or protocol to the agreement.
7. Agreements under Article XIV of the FAO Constitution have the same legal force as other
international agreements and can provide the same fl exibility in respect of final clauses, acceptance
procedures, etc.  In particular, they may provide for the normal procedure of signature and ratification
by contracting parties.  They may also provide for reservations to be made by individual contracting
parties on such conditions as the agreement may determine.  Since such agreements are adoptedwithin the constitutional framework of FAO, they, and the institutions they establish, must remain
linked to FAO in accordance with the provisions set out in the Basic Texts.
1  The adoption of the
revised International Undertaking as an agreement under Article XIV of the FAO Constitution would
automatically ensure a measure of institutional and financial support from FAO.
8. Up to now, some 13 international agreements have been adopted under Article XIV of the
FAO Constitution, ranging from the International Plant Protection Convention in 1951, amended
in 1997, to the Agreement for the Establishment of the Indian Ocean Tuna Commission and the
International Agreement to Promote Compliance with International Conservation and Management
Measures by Fishing Vessels on the High Seas adopted by the FAO Conference in 1993.
(iii) Adoption as a legally-binding agreement under the auspices of FAO but outside its
constitutional framework
9. While explicit provision is made for the adoption of agreements under Article XIV of the
FAO Constitution, it is still open for FAO to convene a diplomatic conference for the adoption of an
international agreement outside the strict framewor k of the FAO Constitution.  Indeed during the last
seven years some six such diplomatic conferences have been convened for the adoption of agreements
outside the framework of FAO2, as compared to two agreements adopted under the aegis of
Article XIV of the Constitution.3  Agreements adopted in this way do not necessarily need to be
linked to FAO in any formal way, although of course they can be so linked if required.  They also
offer more flexibility to the contracting parties from  the point of view of timing, in that they can be
                                                     
1 Part R of the Basic Texts.  Required constitutional linkages include provisions regarding the
appointment of the staff of any bodies established under the agreement, financial controls and powers of theFAO Conference with respect to the amendment of the agreement.
2 Regional Convention on Fisheries Cooperation Among African States Bordering the Atlantic Ocean
(1991), Agreement for the establishment of the Intergovernmental Organization for Marketing Information and
Cooperation Services for Fishery Products in Africa (INFOPECHE) (1991), Agreement for the establishment ofthe Near East Plant Protection Organization (NEPPO) (1993), Constitution of the Centre for MarketingInformation and Advisory Services for Fishery Products in the Arab Region (INFOSAMAK) (1993),Constitution of the Centre for Marketing Information and Advisory Services for Fishery Products in LatinAmerica and the Caribbean (INFOPESCA) (1994), and the Convention for the Establishment of the Lake
Victoria Fisheries Organization (1994).
3 See paragraph 8 above.WT/CTE/W/146
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concluded at any time, without necessarily awaiting a session of the biennial FAO Conference.  While
they thus offer more flexibility to contracting parties in so far as institutional options are concerned,
the procedures for their adoption are more costly, involving the convening of a separate diplomatic
conference.  They also do not entail the automatic institutional and financial commitment of FAO as
with agreements concluded within the framework of the FAO Constitution.  Diplomatic conferences
for the adoption of international agreements can be convened by the FAO Conference or Council or
by the Director-General on the authority of the Conference or Council.
(iv) Adoption as a legally-binding Protocol to the Convention on Biological Diversity
10. Article 28 of the Convention on Biological Diversity provides for the adoption of Protocols to
the Convention.  Protocols must be adopted by th e Conference of the Parties to the Convention.
Protocols are subject to substantially the same procedures of signature, ratification, acceptance,
approval or accession as the Convention itself.
11. It would thus be legally possible for a renegotiated Undertaking to be adopted as a Protocol to
the Convention on Biological Diversity.
12. However, any such decision would have to be taken first by the negotiating parties to the
revised Undertaking, the Commission on Genetic Resources for Food and Agriculture and the
appropriate Governing Body of FAO and ultimately by the Conference of the Parties to theConvention on Biological Diversity itself.
13. Adoption of the revised Undertaking as a Protoc ol to the Convention on Biological Diversity
would ensure harmonisation of action taken under the revised Undertaking with that taken by the
Contracting Parties under the Convention.  It w ould also facilitate access to common financial
mechanisms.  On the other hand, it may also tend to restrict the institutional options open to thecontracting parties to those provided by the Convention, although this may not necessarily be the
case.
4 It would also inevitably impart more of an environmental, as opposed to the present
agricultural, flavour to the revised Undertaking.
14. Should the revised Undertaking have already b een adopted as a legally-binding agreement
under Article XIV of the FAO Constitution or as a free-standing agreement, the possibility should notbe excluded of transforming such an agreement at a later stage into a protocol to the Convention on
Biological Diversity, in the same way as may be envisaged for other agreements already in existence,
such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) or the Ramsar Convention on Wetlands of International Importance especially as Waterfowl
Habitat (Ramsar Convention).  However, this would mean that the agreement would need first to go
through the full adoption, acceptance and entry into force procedures as an Article XIV agreement or
a free-standing agreement, and then to go through separate adoption, ratification and entry into forceprocedures as a Protocol to the Convention on Biological Diversity.
(v) Adoption as a legally-binding Agreement for the Implementation of the Convention on
Biological Diversity in the Area of Plant Genetic Resources for Food and Agriculture
15. A further possible option might be to adopt the revised Undertaking as a legally-binding
instrument in implementation of the Convention on Bi ological Diversity, or certain specified articles
thereof, in the area of plant genetic resources for food and agriculture.  Under this option the legally-
binding instrument could be adopted either as a Convention or other Agreement under Article XIV of
the FAO Constitution or at a diplomatic conference under the auspices of FAO but outside its
                                                     
4 See below paras 22-25.WT/CTE/W/146
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constitutional framework.  In this sense, the fifth option may also be viewed as a sub-option of options
(ii) and (iii).
16. The most recent example of such an “implementing agreement” would the 1995
UN Agreement for the Implementation of the Provisions of the United Nations Convention on the
Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling
Fish Stocks and Highly Migratory Fish Stocks (the UN Fish Stocks Agreement).  As its title suggests,
that agreement implements and amplifies certain provisions of the UN Law of the Sea Convention,
while retaining its own separate and distinct legal identity, without being an integral part or protocol
thereof.
17. The “implementing agreement” option represents a midway solution between that of a
protocol to the Convention on Biological Diversity and a free-standing agreement.  It would on the
one hand ensure that the implementing agreement is in full harmony and consistency with the
Convention, while at the same time allowing greater  flexibility both from the point of view of the
Parties to the agreement and the institutional implications.  So far as the parties are concerned, the
Convention on Biological Diversity requires that States may not become parties to a protocol unless
they are at the same time parties to the parent Convention.5  No such restriction would necessarily
apply in the case of an implementing agreement, and indeed, this was one of the advantages of theapproach in the case of the UN Fish Stocks Agreement, where a number of influential countries were
not yet parties to the UN Convention on the Law of the Sea.  The “implementing agreement”
approach would also allow more flexibility in the governance and secretariat servicing of the legally-
binding instrument, in that all such arrangements  could be set out in the implementing agreement
itself, without restrictions imposed by the Conventi on on Biological Diversity.  It would not, however,
preclude use of the same institutional mechanisms should this prove desirable.
18. The “implementing agreement” approach would also require the sequential agreement of both
the negotiating parties to the revised Undertaking, the Commission on Genetic Resources for Food
and Agriculture and the appropriate Governing Body of FAO, and the Contracting Parties to the
Convention on Biological Diversity.
3. INSTITUTIONAL OPTIONS FOR THE RENEGOTIATED UNDERTAKING
19. To a great extent, the institutional options will be dependent on the approach taken towards
the legal status of the renegotiated Undertaking.  Whatever its legal status, the renegotiated
Undertaking will probably require all or any of the following institutions:
A Governing Body
20. At present the “Governing Body” of the Unde rtaking is the FAO Conference, acting on the
advice of the FAO Council and, more particularly, the FAO Commission on Genetic Resources forFood and Agriculture.  If the renegotiated Undertaking retains its status as a voluntary undertaking
adopted by the FAO Conference, then the “Governing Body” will likely remain unchanged.
Similarly, if the renegotiated Undertaking is adopted as a legally-binding Agreement under Article
XIV of the FAO Constitution, then the Governing B ody would be formed by those Members of FAO
and other eligible states that are party to the new agreement, or if - as in the case of the 1993 FAOAgreement to Promote Compliance with Internat ional Conservation and Management Measures by
Fishing Vessels on the High Seas (the FAO Compliance Agreement) - no specific provision is made
for a separate governing body of parties, by the FAO Conference, presumably acting on the advice of
a specialized body such as the Commission on Genetic Resources for Food and Agriculture.  If, on the
other hand, the Undertaking becomes a Protocol to the Convention on Biological Diversity, or a free-
                                                     
5 Convention on Biological Diversity, Article 32.WT/CTE/W/146
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standing agreement, then the “Governing Body” of the renegotiated Undertaking would normally be
formed automatically by the Parties to the Protocol or Agreement itself.  In either case, there would
seem to be a need to establish some form of institutional links in the renegotiated Undertaking
between, on the one hand, the Conference of the Parties to the Convention on Biological Diversity, or
an eventual Protocol on Plant Genetic Resources, where intergovernmental responsibility lies forbiological diversity in general, and, on the other hand, FAO and its Commission on Genetic
Resources for Food and Agriculture, which has special competence in the area of plant genetic
resources.  If the approach of an “implementing” agreement were to be adopted, then the options
would be open, depending on whether the agreement is adopted under Article XIV of the
Constitution, or outside the constitutional framework of FAO.
Scientific and Technical Body
21. At present no specific scientific and technical body is set up under the Undertaking.  The role
of providing scientific and technical advice is in practice performed by the Commission on Genetic
Resources for Food and Agriculture itself and its Intergovernmental Technical Working Group on
Plant Genetic Resources for Food and Agriculture.  If the revised Undertaking is adopted as a legally-
binding agreement under Article XIV of the FAO Constitution, or as a free-standing agreement, it
may confirm this role of the Commission and its Working Group, or provide for a separate Scientificand Technical Body to be established by the governing body of the revised Undertaking.  The
scientific and technical body could be composed of members of the governing body itself, or set up as
an expert panel.  In either case the body could draw upon scientific and technical input from
appropriate bodies such as FAO and other intergovernmental organizations, as well as research
institutions, notably the International Plant Genetic Resources Institute (IPGRI) and the other Centresof the Consultative Group on International Agricult ural Research (CGIAR).  Under the Convention on
Biological Diversity, this role is allocated to a Subsidiary Body on Scientific, Technical and
Technological Advice (SBSTTA).  The SBSTTA however is made up of participants from all Parties
to the Convention and acts for the Convention as a whole.  If the revised Undertaking were to be
adopted as a protocol to the Convention, it would be open to the parties to establish a specifictechnical body for that protocol.
Secretariat
22. At present, while no specific provision is made in the Undertaking for a Secretariat,
secretariat functions are in practice provided by FAO through the Secretariat to the FAO Commission
on Genetic Resources for Food and Agriculture.  Were the renegotiated Undertaking to retain the
status of a voluntary Undertaking adopted by the FAO Conference, or an agreement under
Article XIV of the FAO Constitution, then these arra ngements would automatically continue to apply
in practice, and could be reflected legally in the ne w instrument.  Parties to a free-standing agreement
would of course be free to choose such new secretariat arrangements as they may wish.
23. Under the Convention on Biological Diversity, provision is made for the designation of a
secretariat from amongst existing competent international organizations, and at the first meeting of the
Conference of the Parties, the United Nations Environment Programme (UNEP) was designated to
provide the secretariat for the Convention, with the participation of FAO and the United Nations
Educational, Scientific and Cultural Organizati on (UNESCO) through the secondment of officers in
their own fields of specialization.  Under Article 14 of the Convention, the Secretariat to the
Convention is also required “to perform the function assigned to it by any protocol”.  This, however,
would not preclude the designation by a particular protocol of a separate technical secretariat for thatprotocol, where specialized technical competence may be required.  Nor, a fortiori , would it preclude
an arrangement such as the obverse of the present secretariat arrangements for the Convention on
Biological Diversity, whereby, for example, the Secretariat could be provided by FAO or UNESCO,
with the participation of UNEP, or indeed any shad es of joint participation by a number of agencies.WT/CTE/W/146
Page 10
In this context it is to be noted that under an increasing number of international agreements
specialized units have in practice been set up to service protocols dealing with specialized subjects.6
24. If the approach of an “implementing agreement” to the Convention on Biological Diversity
were to be adopted, then there would in principle be  full flexibility for the parties to the implementing
agreement to structure the secretariat arrangements for that agreement as they may wish, without any
restrictions.
25. It is to be noted that the selection of secretariat and the place of meeting of normal sessions of
the Governing Body may well have a strong influen ce on the character of the Governing Body and the
tone and thrust of its discussions.  Thus maintenance of the present Convention secretariat
arrangements would accentuate the environmental flavour of any plant genetic resources protocol,
while closer involvement of FAO would accentuate agricultural and developmental interests.
4. IMPLEMENTING MECHANISMS
26. A technical implementing role in the collection, conservation, maintenance, evaluation,
documentation, exchange and use of plant genetic resources is accorded under the Undertaking to
national and regional institutions supported by the CGIAR, in particular IPGRI.7  These activities will
be of particular practical importance to the attainment of the objectives of any renegotiated
Undertaking.  More recently, the relevant CGIAR Centres, and other networks, have placed their
collections of designated germplasm under the auspices of FAO as part of the International Network
of Ex Situ  Collections and recognized the intergovernmental authority of the FAO Commission on
Genetic Resources for Food and Agriculture in connection with policy with respect to those
collections.8  They remain, however, autonomous bodies subject to their own systems of governance
and funding.  Options will need to be considered for ensuring the continued availability of thetechnical expertise accumulated by those Centres, and for ensuring close linkage between the
implementing activities of the CGIAR Centres at the technical level and the intergovernmental policy
direction role of the parties to the renegotiated Undertaking, based possibly on the development of the
contractual link already established under the agreements between FAO and the various CGIAR
Centres.
9
Financial mechanisms
27. At present the Undertaking contains rather vague wording regarding financial mechanisms
under the rubric of Article 8, Financial Security.  More detailed, but still general, provisions are
                                                     
6 One example is the regional centre for combating oil pollution emergencies (Regional Oil Combating
Centre) set up in Malta under the aegis of the International Maritime Organization (IMO) which in effectperforms the substantive functions of a secretariat in respect of the Protocol concerning Co-operation in
Combating Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency
adopted under the Barcelona Convention on the Protection of the Mediterranean Sea from Pollution of 1976.Similar centres have been set up under protocols adopted under the Kuwait Convention for Co-operation on theProtection of the Marine Environment from Pollution of 1978 and the Regional Convention for the Conservationof the Red Sea and the Gulf of Aden Environment in 1982.  The possibility of a separate protocol secretariat was
also discussed in connection with the Montreal Protocol to the Vienna Convention for the Protection of the
Ozone Layer.  It is understood that the retention of existing secretariat arrangements is also being contemplatedif agreements such as CITES or the Ramsar Convention are to be brought within the framework of theConvention on Biological Diversity as protocols.
7 International Undertaking, Article 7.
8 Agreements between the International Agricultural Research Centres and FAO Placing Collections of
Plant Germplasm under the Auspices of FAO, 26 October 1994.
9 Idem.WT/CTE/W/146
Page 11
contained in the annexes to the Undertaking, including a reference to an International Fund to be
established for the implementation of Farmers’ Rights.
28. A renegotiated Undertaking will obviously need to include firmer provisions with respect to
financial mechanisms, if the Undertaking is to achieve its objectives.  The general question will arise
as to whether and to what extent, the renegotiated Undertaking should provide for independent andautonomous financial mechanisms, or, on the other hand, draw on existing financial mechanisms,
such as those provided for under the Convention on Biological Diversity.  The answer to this question
will, of course, be dependent to a large degree on the approach adopted with respect to the legal status
of the renegotiated Undertaking.  A general concern may be to provide some dedicated mechanism or
window of an existing mechanism that would overcome the problem of competition between
agricultural and environmental interests.  Additionally the question arises as to whether the
renegotiated Undertaking should have a single mechanism such as the Global Environment Facility(GEF) or a window thereof, draw upon multiple channels
10 through a facilitating mechanism
(analogous to the Global Mechanism of the Convention to Combat Desertification (CCD), or some
combination thereof.
29. The Convention on Biological Diversity in its Article 21 provides for the establishment of a
mechanism for the provision of financial resources to developing country Parties for the purposes of
the Convention on a grant or concessional basis.  No final decision has yet been taken by the
Conference of the Parties to the Convention regard ing the financial mechanism, which continues to be
provided on an interim basis by the GEF of the United Nations Development Programme (UNDP),
UNEP and the International Bank for Reconstruction and Development (World Bank).  Were the
renegotiated Undertaking to be adopted as a protocol to the Convention on Biological Diversity, thenit could be expected that the financial mechanism established under the Convention, or a dedicated
window thereof, would be utilized as the financial mechanism for such a protocol, although legally
there would be no impediment to providing for a separate fund.  Should the renegotiated Undertaking
be adopted within the framework of FAO, or as a free-standing agreement, the possibility would still
exist, subject of course to the agreement of the Conference of the Parties, of drawing on the financialmechanism set up under the Convention.  Use could al so be made of the GEF, or a window thereof,
independent of and parallel to its use, on an interim basis, by the Convention.  Provision could, of
course, also be made for an independent and autonomous financial mechanism to be established under
the renegotiated Undertaking, whether this should take the form of a fund fed from governmental
contributions, a mechanism linked in some way to access to plant genetic resources or the benefits to
be derived from their use, or any combination of the above.
30. If the approach of an “implementing agreement” were to be adopted, then the parties would
again be free to choose the extent to which they  would wish to draw upon the financial mechanism
established under the Convention on Biological Divers ity, subject of course to the agreement of the
Parties to that Convention, or to establish specific and distinct financial mechanisms under the
agreement itself.
5. ACTION BY THE COMMISSION
31. The above is presented for the information of the Commission in making its choices as to the
legal status of the revised Undertaking.
__________
                                                     
10 In this context it should be noted that the Common Fund for Commodities also provides funds for
research on the improvement of specific plant genetic resources at the request of the intergovernmental
commodity groups concerned