US embassy cable - 04ROME3105

UNCLAS  ROME 003105 
 
SIPDIS 
 
 
STATE FOR E, EB, OES/ETC - NEUMANN, EB/TPP/BTT - MALAC 
AND IO/EDA - KOTOK 
USDA FOR FAS - RICHEY, REICH AND HUGHES 
AND ARS - BRETTING AND BLALOCK 
USAID FOR EGAT/ESP - MOORE AND BERTRAM 
 
FROM U.S. MISSION TO THE UN AGENCIES IN ROME 
 
E.O. 12958:  N/A 
TAGS: EAGR, ETRD, EAID, SENV, KIPR, AORC, FAO 
SUBJECT:  PLANT GENETIC RESOURCES: MATERIAL TRANSFER 
AGREEMENT EXPERT GROUP TO MEET 4-8 OCTOBER 2004 
 
REF:  (A) ROME 1417;  (B) ROME 1057; 
      (C) ROME 0280 
 
1.  Summary:  The Expert Group on the Terms of the 
Standard Material Transfer Agreement (MTA) will hold its 
first meeting on 4-8 October in Brussels, hosted by the 
European Commission (EC).  The standard MTA will specify 
the terms for access and benefit sharing under the 
multilateral system envisioned in the International 
Treaty (IT) on Plant Genetic Resources for Food and 
Agriculture.  The work of the Expert Group is therefore 
crucial, since the IT cannot be implemented fully until 
the standard MTA is agreed.  Officials at the FAO 
Secretariat (which also serves as secretariat to the IT) 
 
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outlined their preparations for the meeting and 
procedural issues that need to be addressed.  They 
believe that the Expert Group's first tasks include 
bringing new delegates up to speed and building North- 
South confidence.  End summary. 
 
2.  According to its Terms of Reference (TOR), the Expert 
Group "shall develop and propose recommendations, which 
may be considered by the Interim Committee for the 
Treaty, on the terms of the standard MTA, in accordance 
with Article 12.4 of the IT."  The Group is also asked 
"to provide advice and, where appropriate, propose 
options and/or elements for inclusion in the standard 
MTA" on various topics.  These include, inter alia, the 
level and form of payments, whether to exempt small 
farmers from developing countries or transitional 
economies from payments, what constitutes 
"commercialization" under the IT, what constitutes 
"incorporation" of material, etc. 
 
3.  In the past several months, U.S. Mission has held 
periodic discussions on arrangements for the upcoming MTA 
Expert Group meeting with Jose Esquinas-Alcazar, 
Secretary of the FAO Commission on Genetic Resources for 
 
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Food and Agriculture, most recently on 9 August.  We 
raised a number of practical and procedural questions, 
and sought the Secretariat's views on the meeting more 
generally.  Key points of the discussion are reviewed 
below. 
 
4.  EC Support:  On 15 July, the EC Directorate General 
for Health and Consumer Protection (SANCO) formally 
offered to host and pay for the MTA meeting on 4-8 
October and preparatory meetings of developing-country 
delegations on 1-3 October.  FAO Director General Diouf 
accepted the EC offer in a letter signed 10 August. The 
EC and FAO Secretariat have been working out a memorandum 
of understanding (MOU) that spells out the details.  Once 
the MOU is approved and an agreement with the Belgian 
government regarding privileges and immunities is 
finalized, FAO will be able to issue invitations to the 
meeting.  The MTA meeting was to have been held in 2003, 
but had to be rescheduled several times for lack of 
sufficient voluntary contributions.  With the EC's offer 
and other contributions in the pipeline, Esquinas is now 
confident that FAO will have adequate resources for all 
IT-related meetings programmed for CY 2004. 
 
5.  U.S. Contribution:  As instructed by USDA, U.S. 
Mission informed FAO on 28 July that the USG contribution 
of approximately $50,000, originally earmarked for the 
first MTA Expert Group meeting, could be used for other 
IT-related events if -- as is now confirmed -- the MTA 
meeting is fully funded.  We added the stipulation that 
the contributions of the USG and other donors to the IT 
process should be recognized explicitly at the MTA 
meeting. 
 
6.  Participation of Advisors and Observers:  We asked 
about the possibility of attendance of additional 
advisors and observers, in addition to the two experts 
and two advisors from North America region specified in 
the TOR.  Esquinas said that the FAO Legal Office 
understands the TOR to mean that this is a restricted 
meeting, and no others may be present in the meeting 
room.  The Legal Office has determined, however, that it 
would be acceptable for an advisor's seat at the table to 
rotate among several individuals, but only one of them 
could be physically present at any one time. 
 
7.  Participation - Continued:  Esquinas pointed out that 
 
 
the matter of representation on the MTA Group had been 
contentious at the first Interim Committee (IC) meeting, 
and the numbers were arrived at after long negotiations. 
In particular, developing countries feared that, in the 
absence of strict limits, the wealthier governments could 
pack the MTA with their own experts.  Therefore, any 
decision by the Secretariat that would appear to deviate 
from the numbers set in the TOR would not only be legally 
questionable, but would raise serious political 
difficulties.  Even the Legal Office's ruling on the 
possibility of rotating advisers may raise some eyebrows 
or hackles, Esquinas thought.  Against this background, 
FAO's acceptance of the EC offer to host the first MTA 
meeting also is somewhat controversial.  As for the 
presence of industry observers, that was discussed at the 
IC, but no conclusion was reached other than the 
statement in the TOR that "advisors may include, inter 
alia, representatives from government, industry, academia 
and civil society." 
 
8.  International Organizations:  Regarding participation 
of international organizations, even the Convention on 
Biological Diversity secretariat is not included in the 
list of Expert Group members spelled out in the TOR. 
Only the Consultative Group on International Agricultural 
Research (CGIAR) may nominate a representative.  The 
World Intellectual Property Organization (WIPO) and the 
International Union for the Protection of New Varieties 
of Plants (UPOV) may only do so upon the request of the 
Expert Group. 
 
9.  U.S.  Expert:  We informed the Secretariat, on 
instructions from USDA, that the U.S. expert at the 
meeting would continue to be David Hegwood, who, 
effective 17 August, will become Minister Counselor and 
Alternate Permanent Representative at U.S. Mission Rome. 
We explained that no final decision had been taken on the 
occupant(s) of the single U.S. advisor slot. 
 
10.  List of Experts:  Esquinas said that the Latin 
American and Caribbean Regional Group (Grulac) has not 
yet designated its four experts.  He is reluctant to 
release the list of experts and advisors until it is 
complete.  He added, however, that he will not allow the 
Grulac's indecision to hold up preparations for the 
meeting.  Once the invitation letter is ready, FAO will 
send it out to the experts designated by each region, 
and, if there are no designees, to the permanent 
representation heading the relevant regional group. 
 
11.  Selection of a Chairman:  Esquinas said the 
Secretariat is concerned that deciding on a Chairman for 
 
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the Group could end up using up a lot of substantive 
negotiation time.  According to the FAO Legal Office, the 
Chairman should be one of the experts, but the problem is 
that most of the experts are likely to want to 
participate actively in the debate.  It would be 
difficult to find someone who would be both knowledgeable 
about the issues and sufficiently detached from them to 
serve as an impartial moderator.  An "ideal" solution 
would be for the Chair of the IC, Fernando Gerbasi, to 
serve also as Chair of the Expert Group, but the latter's 
availability is not certain.  Esquinas expressed cautious 
optimism that, once the full list of experts is 
available, a suitable candidate for chair will appear 
among them, and that this could be agreed informally in 
advance of the October meeting. 
 
12.  Flexibility:  Esquinas noted that, although the 
Secretariat has to take a strict-constructionist view on 
 
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matters of procedure, the Expert Group itself is 
sovereign.  If the Group decides on a course of action 
(on, say, the selection of a Chair) by consensus and no 
member of the Group questions it, then the matter rests. 
We take this to mean that the FAO Legal Office would not 
of its own accord quibble with procedural decisions made 
by the Expert Group if it is not asked for its opinion. 
 
13.  First Steps:  According to Esquinas, not all of the 
experts nominated thus far by other regions are 
knowledgeable about MTA issues.  There will therefore be 
something of a learning curve to bring the newcomers up 
to speed.  Esquinas' expectations for the first MTA 
Expert Group meeting are modest.  He sees confidence- 
building between North and South as an essential first 
 
E 
 
 
step. 
 
14.  U.S. Mission Comment:  The negotiation and entry 
into force of the IT was a significant achievement, but 
this was made possible in large part because the treaty 
provides only a framework, leaving key contentious issues 
such as the content of the standard MTA to other groups. 
Now for the diabolical details.  Knowledgeable officials 
at the FAO Secretariat clearly believe that the upcoming 
meeting of the MTA Expert Group will need to do 
considerable groundwork in education and confidence- 
building before they can even begin to tackle those 
essential details. 
 
Hall 
 
 
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	2004ROME03105 - Classification: UNCLASSIFIED