260 • Technologies To Maintain Biological Diversity 



ommendation 39 called on governments to agree 

 to an international program to preserve genetic 

 resources. This recommendation has been im- 

 plemented most actively with offsite conserva- 

 tion of cultivated and domesticated materials, 

 particularly crop germplasm. In fact, the crea- 

 tion of the international plant germplasm sys- 

 tem that now exists has been credited, in large 

 part, to the Stockholm conference (63). 



The only other international agreement deal- 

 ing specifically with offsite maintenance of 

 germplasm is the FAO International Undertak- 

 ing on Plant Genetic Resources. This initiative 

 to establish, among other things, an interna- 

 tional convention dealing with the maintenance 

 and free flow of plant germplasm has been con- 

 troversial since its inception in 1981. Although 

 initiated as a binding convention, for political 

 expediency it emerged as a nonbinding agree- 

 ment in 1983, although efforts to make it bind- 

 ing continue (3). As outlined in article 1 of the 

 resolution (26): 



The objective of this undertaking is to ensure 

 that plant genetic resources of economic and/or 

 social interest, particularly for agriculture, will 

 be explored, preserved, evaluated, and made 

 available for plant breeding and scientific pur- 

 poses. This undertaking is based on the univer- 

 sally accepted principle that plant genetic 

 resources are a heritage of mankind and conse- 

 quently should be available without restriction. 



Subscription to the FAO undertaking has 

 been polarized along industrial and developing- 

 country lines, with some exceptions on both 

 sides (68,82). Developing-country charges that 

 industrialized countries have been capitalizing 

 on Third World genetic resources without re- 

 muneration is central to the debate (53). The 

 most hotly contested aspect, however, is free 

 access to private breeders' germlines. Indus- 

 trial countries with plant breeders' rights leg- 

 islation (discussed later in this chapter), which 

 include the United States, are unable, if not un- 

 willing, to subscribe to the undertaking with- 

 out major reservations. 



The issues of control and free flow of genetic 

 resources are likely to be debated further in in- 

 ternational fora. A closer examination of the 



U.S. position and options is needed. (Further 

 consideration of this issue is provided in the 

 following discussion of international offsite 

 programs.) 



lit 



Law 



International patent law is tangentially rele- 

 vant to genetic resource maintenance because 

 the proprietary status that patenting living or- 

 ganisms provides is central to the debate on 

 international access to germplasm. Current de- 

 bate focuses on plant patenting, although it 

 could well extend to microbial patenting, for 

 example, in the future. Advances in biotech- 

 nology have brought increased attention to 

 patenting living organisms because of the lucra- 

 tive possibilities the technology offers and be- 

 cause of the likelihood that these advances will 

 accelerate trends toward patenting (e.g., through 

 the ability to establish genetic "signatures" on 

 human-altered organisms). The ability of leg- 

 islation to keep pace with rapidly evolving bio- j, 

 technologies is uncertain and raises serious |l 

 questions for policymakers (67). Effects of patent- 

 ing on genetic diversity in agricultural crops 

 raise further concerns (see box 10-A). 



The expansion of plant patenting into inter- || 

 national law occurred with the establishment 

 in 1961 of the International Union for the Pro- 

 tection of New Varieties of Plants (lUPOV), con- 

 sisting of countries party to the international 

 convention on this issue. The convention itself 

 does not provide global patent protection. How- 

 ever, the parties to the convention— almost ex- 

 clusively industrial countries — agreed to enact 

 plant breeders' rights (PBR) legislation and to 

 guarantee citizens the right to obtain protec- 

 tion under their respective national patent sys- 

 tems (6). 



The system does not affect the free flow of 

 germplasm as such. It typically permits pro- 

 tected material to be used for research and 

 breeding by nations that have obtained the 

 rights. Further, there is currently no legal ob- 

 stacle in using the same material in other coun- 

 tries (6). 



Critics charge that since the inception of 

 lUPOV, there has been a concerted effort to 



