The Convention on Biological Diversity (CBD) for "the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from genetic resources" was adopted in June 1992 at the Earth Summit. The Convention entered into force on 29 December 1993. It applies to the 188 States that ratified it, of which the United States is not a part.

The CBD covers the three levels of biological diversity : ecosystems, species and their genetic diversity. With regard to genetic resources, the CBD introduces two new notions :

•  It sets genetic resources under the status of national sovereignty : States have now the authority to declare what legislation is applicable to the resources on their territory (excluding resources gathered on their territory prior to 1993 - the date on which the CBD entered into force - and which are now located abroad). Accordingly, the status of ownership of genetic resources is a matter of the national legislation of the said State.

•  It subjects access to genetic resources to prior informed consent of the providing State, and to the sharing of benefits arising from the use of genetic resources, according to terms and conditions negotiated case by case.

To facilitate access to genetic resources, share the resulting benefits and stimulate research, States party to the CBD are encouraged to take relevant "legislative, administrative or policy measures".

Several reasons explain why the general framework established by the CBD can not easily be applied as such in the food and agriculture context : the genetic resources of a same species are broadly distributed and often duplicated throughout the planet. Moreover, the creation of new plant varieties requires the breeding of dozens of varieties which have been improved beforehand, which emanate from multiple providers, and whose individual contribution to the final genetic improvement is generally impossible to establish, even a posteriori. These realities make difficult the attainment of prior informed consent and the a priori definition of benefit-sharing conditions via bilateral channels. This runs contrary to the very nature of agricultural specificity, which is multilateral, collective and interdependent.

The International Treaty on plant genetic resources for food and agriculture adopted by the FAO in November 2001 entered into force on 29 June 2004. Its objectives are "the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of benefits arising out of their use, in harmony with the Convention on Biological Diversity, for sustainable agriculture and food security". It recognizes "the sovereign rights of the States over their own plant genetic resources for food and agriculture". As such, it is clearly in line with the CBD, and it is legally binding for the States that ratify it.

The International Treaty is based on four pilars :

•  " Farmers' Rights ", defined as a range of social and political rights to be realized by national governments (Article 9) ;

•  a " Multilateral System for Access and Benefit-Sharing " which adapts the principles of the CBD to the distinctive features of food and agriculture. This system implies that signatory States undertake to respect the free circulation of genetic resources in the public domain, and of genetic resources voluntarily made available and which are included among a list of 35 crops and 29 forages (in France, the National Collections have been established with a view to be incorporated in the Multilateral System). However, the sharing of the monetary benefits derived from genetic resources is mandatory via a joint fund, if such products are not freely available for research and breeding (Articles 10 to 14) ;

•  further clarification of the regime of the ex situ collections of the International Agricultural Research Centres (Article 15) ;

•  a " Funding Strategy " to mobilise more effectively existing funding sources for implementing the objectives of the Treaty (Article 18), in particular towards the Global System for the Conservation and Sustainable Utilization of Genetic Diversity for Food and Agriculture.

Intellectual property rights have particularly significant implications for the utilisation of genetic resources :

•  the inventive step is essential for identifying and exploiting the benefits of these resources for agricultural, industrial or health purposes ;

•  the outcome of the inventive step is often itself a genetic resource (breeding for food and agriculture in particular), and easy to replicate ;

•  the pursuit of scientific progress, especially in the field of genetics, relies on access to the publication of R&D results.

The TRIPS agreement (Agreement on Trade-Related Aspects of intellectual Property Rights) lists seven major categories of intellectual property. Among them, two in particular must be applied by WTO member States in the context of the utilisation of genetic resources : patent and the protection of plant varieties.

Patents apply to any invention meeting three criteria : novelty, inventive step and industrial application. In Europe, patent rights are defined by the European Patent Convention and, in the EU, by the Directive on the Legal Protection of Biotechnological Inventions.

The Plant Breeders' Right (PBR) is based on four criteria : novelty, distinctness, uniformity and stability. Two major distinctions set the PBR apart from patents : the "breeder's exemption" and the "farmer's privilege".

•  the "breeder's exemption" allows for the free use of protected varieties "for the purpose of breeding of other varieties";

•  the "farmer's privilege" allows "farmers to use, for propagation purposes on their own holdings, the protected variety", and this under the jurisdiction of the Member States that have opted for this, as well as under the terms and conditions set forth by law. The PBR is governed by the national laws adopted by the States Party to the Convention for the Protection of New Varieties of Plants (i.e. UPOV Convention).

A third category of rights, grouped under the designation " geographical indications " is frequently linked to products resulting from the utilisation of genetic resources, particularly when traditional or collective knowledge is used, as is the case with many regional products.