In 1992, in Rio de Janeiro, the United Nations hosted an Earth Summit to consider the state of the world's environment. In addition to producing a number of nonbinding declarations of international environmental policy, the Earth Summit gave birth to the Convention on Biological Diversity (CBD). The specific concern of the CBD is biological diversity, which the convention defines as "the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are a part; this includes diversity within species, between species and of ecosystems." As set forth in Article 1 of the Convention, the objective of the CBD is

[t]he conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.

The CBD marked the end of the common heritage of mankind conception of genetic resources. The CBD does not refer to a "common heritage," and its preamble states only that conservation of biodiversity is a "common concern of humankind." Instead, the CBD reasserts the principle, earlier espoused in Resolution 3/91 of the FAO Commission on Plant Genetic Resources, that nations have sovereign rights over natural resources within their boundaries, and that "the authority to determine access to genetic resources rests with the national governments and is subject to national legislation." Article 15(5) of the CBD gives teeth to the sovereignty principle by requiring collectors of genetic resources to obtain the permission of the nation where the resources are located before they may be removed. The state's authority to regulate access is tempered by Article 15(2), which requires signatories to the CBD to "endeavor to create conditions to facilitate access to genetic resources," and forbids them to "impose restrictions which run counter to the objectives of this Convention."

The sovereign rights of nations over genetic resources within their boundaries inspired concerns among intellectual property right holders that their rights would be displaced by sovereignty rights. However, the CBD's conception of sovereign rights does not grant states an "ownership" right over genetic resources. Ownership of physical matter containing genetic material remains subject to national law, which varies considerably, and may be held by public entities or private parties. Likewise, the CBD affirms the validity of intellectual property rights over genetic resources. However, state sovereignty does give states powers to control and limit?#8364;”potentially quite significantly?#8364;”the exercise of such property rights.

Addressing another concern of developing countries, Article 16 of the CBD requires member countries "to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that ... make use of genetic resources." Anticipating biotechnology industry objections, the article also states that, "in the case of technology subject to patent and other [intellectual property rights], such access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of [intellectual property rights]."

Article 19 of the CBD provides that developing countries should receive a share in the benefits from biotechnology. Parties to the Convention must "take all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms." Left unresolved were key questions such as the meaning of sharing in "benefits" of biotechnology: did this mean a share of financial rewards or only access to the technology itself?

Reactions to the CBD in the international community were mixed. Some nations hailed the Convention as a long-overdue measure of partial justice for developing countries. For some observers, the CBD seemed to raise as many questions as it answered, since many of its provisions are conceptual in nature, and it fails to provide practical guidance on how to achieve specific results. Others have criticized the Convention for its "circularity," in assuming that simply declaring that sovereign rights and mandatory benefit-sharing are consistent with intellectual property rights makes them so. Indeed, the United States refused to sign the CBD, in part, because of biotechnology industry concerns that its sovereign rights and technology transfer provisions would undermine intellectual property rights. President Clinton eventually signed the CBD. However, the United States Senate has never ratified the Convention, and it has not become binding on the United States.

Despite the nonparticipation of the United States, forces behind the CBD gained momentum after 1992, as many nations passed legislation to implement the CBD genetic resources provisions. For example, in 1995, by executive order, President Fidel Ramos of the Philippines established a system for conservation of and access to biological and genetic resources. Among other things, the decree set forth minimum terms for academic and commercial research agreements, which provided for, inter alia, (1) limits on the number of biological samples that may be exported from the Philippines, (2) reciprocal rights of access by the Philippine government and Filipino citizens to collections taken from the Philippines and stored in depositaries abroad, and (3) the payment of royalties to the Philippine national government, local or indigenous cultural communities or specific individuals, as appropriate, when commercial use is derived from the biological and genetic resources taken.

Similarly, in 1996, the Andean Community, in Decision No. 391, adopted a Common Regime on Access to Genetic Resources, which mirrored some provisions of the Philippine decree and also provided that member countries may establish "partial or total limitations on access to genetic resources or their derivatives" in a variety of circumstances.

These and other attempts to implement the CBD are doubtless well-intentioned, but it is now widely accepted that restrictive access laws have obstructed the international flow of plant germplasm, which is critical for continued agricultural research. This negative effect on research, combined with the fact that the CBD left many important questions unanswered, underscored the need to harmonize access and benefit-sharing mechanisms and to fill in gaps. Fortunately, steps in this direction were taken even before the CBD entered into force. In 1993, FAO adopted Resolution 7/93, calling for intergovernmental negotiations for revision of the International Undertaking. The purpose of these negotiations, which continued until 2001, would be to make the International Undertaking legally binding, to clarify issues, and to bring it into conformity with the CBD. In the end, the negotiators agreed upon a binding treaty that brought further clarity to some of the issues left undefined by the CBD.

On November 3, 2001, in Rome, after more than 15 sessions of the FAO Commission on Genetic Resources and its subsidiary bodies, representatives of 116 nations approved a new International Treaty on Plant Genetic Resources for Food and Agriculture (the Treaty). Of the nations participating in the conference, only the United States and Japan abstained, both of them citing concerns about a lack of clarity regarding the effect of the Treaty on intellectual property rights. The Treaty will enter into force on June 29, 2004.

The Treaty applies only to plant genetic resources useful for food and agriculture (PGRFA). It establishes the following objectives: (1) to encourage the conservation of plant genetic resources in order to preserve and enhance the genetic diversity of plant species and varieties of value to food or agriculture; (2) to provide a workable, juridical basis for rewarding farmers for their contributions in conserving, improving, and making available plant genetic resources; (3) further development of the system of national sovereignty over plant genetic resources first established in the CBD, while ensuring that such exercise of sovereignty does not hinder international exchange of such resources; and (4) creation of a Multilateral System of Access and Benefit-Sharing, which will coordinate exchanges of plant genetic resources, and in some cases, require payments by persons or entities who commercially exploit such resources, to the nations from which such resources originated. When the Treaty comes into force, a Governing Body, comprised of states that have signed the Treaty, will be established to implement its provisions.

The general provisions of the Treaty require member states to survey, inventory, and otherwise conserve PGRFA, and to take policy and legal measures to promote their sustainable use. These measures are to be implemented at the national level and through international cooperation. Member states also agree to promote the provision of technical assistance to one another, and especially to developing country and transitioning economy members.

Article 9 of the Treaty strongly reaffirms the principle of Farmers' Rights, and requires each member state, "subject to its national legislation," to take measures to promote and protect Farmers' Rights, including:

1. Protection of traditional knowledge relevant to PGRFA;
   
2. The right to equitably participate in sharing benefits arising from the utilization of PGRFA; and
   
3. The right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of PGRFA.