Raniyal Niyada P argues that the proposed ITPGRFA ‘Package Deal’ marks a shift from sovereignty-based access and benefit-sharing towards an access-management framework. Through a TWAIL lens, the reflection explores how reforms concerning Digital Sequence Information, crop expansion, and subscription-based benefit-sharing may deepen existing inequalities in the governance of plant genetic resources.

---

TWAILR: Reflections ~ 94/2026

---

Introduction

The Eleventh Session of the Governing Body (hereinafter the Governing Body) of the International Treaty on Plant Genetic Resources for Food and Agriculture (the Treaty) concluded in Lima, Peru on 29 November 2025, marking a significant shift in the governance of Plant Genetic Resources for Food and Agriculture (PGRFA). The treaty adopted by the Food and Agriculture Organisation in 2001, institutionalizes the larger aim of conserving PGRFA, while promoting its sustainable use, and ensuring an equitable flow of benefits to the providers of the PGRFA. The mechanism is structured around a Multilateral System (MLS), which creates a shared pool of key crops —listed in Annex I through agreement—from provider countries for research and development, while systematically channelling the benefits arising out of such utilisation to the providers through both monetary and non-monetary methods. The current MLS makes available selected genetic resources including the genetic diversity and related information about the crops stored in the public gene banks of contracting parties. Any contracting party can access any of the resources by subscribing to the terms of a Standard Material Transfer Agreement (SMTA), thereby ensuring cost and time efficiency. The SMTA mandates that the users share the benefits arising out of such accessed resources through a benefit sharing mechanism. A Benefit sharing fund (BSF) is created by the Treaty to receive all such contributions, which is further intended to flow to the providers of these genetic resources.

The Treaty engages through a cycle of regular biennial Governing Body sessions supported by technical intersessional deliberations. The Tenth Governing Body concluded in 2023 in an evolving multilateral global ecosystem. Coupled with rapid technological advancements, including in genomics, the shifting landscape in genetic resource management raises a fundamental identity crisis for the Treaty. The Treaty, originally designed to regulate the physical exchange of PGRFA, now struggles to remain relevant in the technologically advanced digital realm. With the user- based royalties at a staggering low, the current system is facing a financial collapse that necessitates a move towards a more predictable and efficient revenue model. The intersessional work and the Eleventh Governing Body, therefore, focused on addressing the enhancement of the MLS to fix the revenue failures, the expansion of the list of crops in the MLS, and the incorporation of Digital Sequence Information (the DSI) into the scope of the Treaty to prevent digital biopiracy. The DSI, also known as Genetic Sequence Data (GSD), is the digital representation of genetic material that bypasses the need for accessing physical seed in plant breeding. The Government of Switzerland’s proposal, made before the 11^th Governing Body as item 8 of the Provisional Agenda, to amend the Annex I of the ITPGRFA, by expanding the scope of the MLS to “all other plant genetic resources for food and agriculture”, along with developing nations’ demand to include DSI into scope of the Treaty, led to a structural deadlock during the negotiations. The Chair, Alwin Kopše’s ‘Package-deal’ was a proposal intended to address this deadlock.

The proposed model reclassifies access from a conditional grant where the providers retain control over resources into a transaction where the providers have no further claim once the payment is processed.

While the official negotiations ended without a consensus, the Chair, Alwin Kopše’s ‘Package-deal’ proposal indicates the normative shift in the treaty architecture. Though the ‘package deal’ is a non-binding suggestive proposal, it was taken note of and serves as a basis for future work without requiring additional intersessional meetings. The package deal integrates enhancement of the MLS through expanding the crops under Annex I of the treaty with the inclusion of DSI/GSD for access regulation and a subscription-based benefit sharing model.

Hence the Package Deal links three distinct reforms for expanding MLS crops, including DSI and an alternative revenue generation model for benefit sharing into a single compromise transaction. While the developing countries have argued for inclusion of DSI to prevent digital biopiracy, this is offered at the cost of expanding the crop list of the MLS and moving towards fee-based access. The deal effectively transforms a sovereignty-grounded, right-based access and benefit sharing (ABS) regime on PGRFA into an access-management framework. The proposed model reclassifies access from a conditional grant where the providers retain control over resources into a transaction where the providers have no further claim once the payment is processed. This creates a system in which payment of a fee secures access to the global gene pool, disregarding how value is ultimately created. This, I argue transforms the treaty architecture to a negotiated sovereignty model. As Argentina argued, the fact that the compromise proposal is being taken note of for future discussions indicates that the decisions are only postponed. Rather than resolving the fundamental issues over sovereignty, equality and the benefit sharing mechanism, the compromise propose effectively lays down the groundwork for the Twelfth Governing Body Meeting in 2027.

By coupling the technologically driven demand for inclusion of DSI governance with expansion of the Annex I and alternative benefit sharing model, this compromise proposal risks masking redistribution failures of the current system with administrative convenience. This was achieved through consensus-building, while eroding the autonomy of the providers of PGRFA, especially in the Global South. I argue through the piece that the cumulative consequence of the Eleventh session of the Governing Body is the negotiation of sovereign control over the PGRFA in exchange for procedural certainty for the users through pre-cleared access at the cost of distributive justice for the provider countries. I further argue that this is a modern iteration of colonial style legal enclosures which are structured to undermine the gene-rich Global South in international fora through power asymmetry.

This analysis employs Third World Approaches to International Law (TWAIL) as a methodological commitment, borrowing from  B.S. Chimni and Chidi Oguamanam. It reads international law’s formally neutral laws as hegemonical residues of colonial power relations, rather than purely technical tools. This pattern also translates to the plant genetic resources governance where instruments framed as harmonising or efficiency-driven tend to reproduce rather than solve the problematic asymmetry as established by Titilayo Adebola. The problem of colonial hegemony and reproduction of problematic asymmetry it sustains, forms the core analytical foundation of this reflection paper.

Redistribution Failures

The Treaty’s MLS houses around 2.6 million accessions, contributed by 69 provider countries. The shared resource pool was accessed a total of 7,185,946 times by 189 recipient countries, indicating extensive reliance on the available gene pool (as of 21/07/2026). While the access statistics remain high, 97.4% of the overall contribution to the Benefit Sharing Fund (BSF), is derived from the voluntary contributions alone. The MLS user-based income, i.e., royalties from the use of genetic resources from the available gene-pool remains at a staggering low of about 2.24%, raising question of long-term financial sustainability. While the contribution from parties has improved over time, the MLS user-based revenue generation has remained comparatively low. (Figure 1)

With 7.11 million instances of access and a negligible 2.24% of the user-based payments to the BSF, the present access is at an effective price of 11 cents USD (approximately 9.5 INR) per transaction. This effectively devalue the true socio-economic and biological value of the global genetic resources, essentially subsidizing commercial access at the expense of provider autonomy. Further, this disproportionate contribution to the BSF indicates that the commercial utilization of genetic resources is either largely escaping the payment channels or being manipulated through legal and contractual pathways that do not trigger monetary obligations under the Treaty. The redistribution failures of the MLS further materialized in the BSF reports, which show that the fund utilization projects are primarily non-monetary through capacity building and technology transfer and not monetary to the providers of the resources in the gene pool. Thus perpetuating the Treaty’s institutional mechanism as the sole gatekeeper of redistribution. This is particularly problematic as this centralisation threatens to replace the sovereign rights of the provider nation for administrative efficiency. This points to a serious enforcement and design flaw within the MLS framework, indicating the dilution of the core normative principle of equitable benefit sharing. It further undermines reciprocity principles of the treaty, threatening the structural viability of the MLS itself. This erosion is not merely administrative oversight but a structural asymmetry with unrestricted access to the gene pool and a deferred benefit sharing obligations. Access to the gene pool is immediate and unconditional while the corresponding benefit-sharing obligations remain delayed and in sometimes never materialise.

Negotiating Sovereignty: The Package Deal

On November 29, 2025, i.e. the last day of the sessions, Chair Alwin Kopše introduced a compromise package deal proposal to address the structural deadlock during negotiations. The proposal is anchored in a trade-off as it cobbles together an expansion in Annex I, to include additional crops, and an implementation of an alternative subscription-based benefit sharing scheme for addressing imbalance in monetary-benefit sharing, (as shown above) along with the inclusion of DSI/GSD in the Treaty subject. This model forms a new interlocked panel of expansion and access-management in the global PGRFA framework. While the DSI inclusion challenges the fundamentals of the current Access and Benefit Sharing system, as access is no more physical, the proposed subscription model tries to monetise access rather than sharing the benefits flowing from utilisation. When combined with the proposed expansion of the crops under the MLS, the Eleventh Governing Body threatens to reorient the Treaty framework from benefit sharing to an access-facilitation framework, regulated through an ‘access-tax.’ This compromise package deal, hence, challenges the absolute sovereignty the providers retain over the genetic resources. This analysis of a negotiated sovereignty fits within a broader phenomenon of B.S. Chimni’s internationalisation of property rights whereby international law increasingly reconstitutes what were once sovereign entitlements as internationally administered commodities. The following sections inquiry as the mechanism employed for this commodification.

Expanding Crops Under the Multilateral System

The enhancement of the MLS system began in 2017 as a proposal to expand the crop list under Annex I. The Swiss government proposed an amendment to Annex I of the Treaty to include “all other plant genetic resource for food and agriculture.” The Ad Hoc Open-ended Working Group considered this proposal, and Switzerland further reaffirmed the amendment proposal in the Eighth, Ninth, Tenth and the current Eleventh Sessions of the Governing Body. The compromise deal has limitedly integrated this proposal by expanding the MLS to an additional list of crops. It raises question on dilution of seed sovereignty, especially in the package deal context, where the expansion could possibly open the provider countries’ rich biodiversity for uncontrolled access by multinational agribusiness firms. Given the previous instance of ‘Basmati Rice Lines and Grains’ patent and ‘Field bean cultivar named Enola’ patent in the US to name a few, the users use intellectual property rights (IPR) tools to restrict access to the newly developed seed from the common pool. Despite different outcomes, a common pattern emerges from these cases: how IP tools are used for ‘fencing off’ otherwise public domain property and an overt burden on the provider countries to contest the appropriation. The resultant IPR fencing could be detrimental to the small and medium farmers, echoing concerns of food security and food sovereignty. Considering this history, the present proposal to further open the global biodiversity under the MLS mechanism poses critical concerns. As Chidi Oguamanam observes, these conventional IP models succeed in creating privatized legal enclosures and expanding Annex I accelerates this commodification The blanket inclusion of all genetic materials is a form of enclosure of the Global South’s biodiversity through international tools and, thereby shifts the burden onto developing nations to contest these appropriations.

The proposal risks facilitating the unregulated access to the PGRFA of developing nations without a guaranteed equitable benefit sharing. Unless clear mechanisms to measure and disburse monetary benefit claims are in place, the proposal appears fundamentally detrimental to the autonomy of developing nations over their seed pool. India has maintained that the expansion should be voluntary and gradual, stressing that a positive list approach should be taken rather than blanket inclusion of all crops.  Though these administrative efficiency in treaty might seem neutral at first glance it facilitates the subordination of Global South’s genetic resources to the Northern biotechnology. In a true trade-off, the proposed Package Deal, instead of opting to expand the Annex I to include ‘all crops’, has rather proposed to incorporate an ‘additional list’, which would be curated by contracting parties at a later stage. This seems to be a ‘compromise,’ but given the potential outcomes, the proposal requires rigorous deliberations with a focus on agricultural and farming community across globe.

Digital Sequence Information: The New Paradigm of Access

The current MLS system facilitated access to physical accession of PGRFA in the common pool. However, with the advent of technology, plant breeding has moved towards utilising DSI/GSD to develop new plants, hence the consideration to include DSI/ GSD into the subject matter of the Treaty.

The fundamental problem of DSI/GSD inclusion is a lack of universally accepted definition along with the inherently digital nature of the data, that when sequenced can be shared unrestrictedly. Once the data enters the unregulated DSI/GSD matrix, the current ABS mechanism will be rendered ineffective, as there is no requirement to access physical genetic resources. This bypasses the material transfer trigger which further incapacitates the current ABS mechanism. The second issue is that DSI/GSD renders sequence information more fluid, making it difficult to trace. DNA, RNA, proteins, and the metabolites have the potential to be valuable DSI/GSD. However, the further a molecule is from the DNA along the chain of this conversion, the harder it is to trace the original source, undermining the traceability the current ABS system depends on.

DSI/GSD based plant breeding also uses multiple source materials, making traceability more challenging. Moreover, the uneven access to sequence capacity between the Global North and the Global South adds to this challenge. The nuanced question of DSI/GSD exposes the structural lacuna of the material-based ABS governance system which resonated in the Convention on Biological Diversity 1992 too. In the Eleventh Session of Governing Body of the Treaty, India maintained that DSI/GSD should remain part of the MLS system, stemming from the bigger challenge of preventing digital biopiracy. An unregulated DSI/GSD use could remain detrimental to the Global South as it is likely to dilute the sovereignty and control on these PGRFA. Further Adebola and Manzella argues that DSI/GSD creates a governance vacuum that risks digital biopiracy and weakens the regulatory capacity of the Global South.  Though the requirement to include DSI/GSD as part of the treaty is structurally flawed in the current mechanism, the demand to protect the DSI/GSD is necessary. However, the question remains as to how to redesign the governance architecture of ABS as the current system is built around the access to physical accessions.

Subscription Model of Access

The revised Standard Material Transfer Agreement’s subscription-based model is proposed to replace the traditional track-and-pay system of ABS structure that triggers payment once there is an actual utilisation of resources. The subscription-based model requires the recipient to pay a fixed sum to access the genetic resources from the MLS, regardless of whether or how those resources are subsequently used. By contrast, the track-and-pay system grants access on the condition that benefits arising from actual utilisation are shared with the providers. The former, in other words, disassociates payment from utilisation, the later conditions benefit sharing on it. 

One major criticism of the existing track-and-payment scheme is that it is difficult to enforce, especially when multiple source materials are used in the process of developing new materials, for example, the DSI/GSD based breeding methods. The new payment model proposes to address this gap by mandating pay and use, i.e., it levies a fee for access to the genetic resources from the pool. This takes away the burden of tracking the use of the genetic resources and creates onus on the accessor to pay for access. The proposed model ensures a systemic flow to the benefit-sharing fund, which promises to be more sustainable. The Earth Negotiation Bulletin reports that the developing countries supported a ‘subscription-only system, to minimize complexity and bring a predictable flow of incomes’ but is yet to agree on the specific rates. However, it is important to note that the subscription-based approach to benefit sharing commodifies access, by making access to the MLS into a paid licence rather than a negotiated right. The immediate significance of this shift is that a license, unlike a right, can be priced, revised and withdrawn by the institution administering it. The larger implication is also that the term of access moves from something provider countries negotiate to something that are simply charged for, irrespective of the benefit ultimately received or not.

Apart from the failure to generate MLS user-based income, the traditional ABS structure fails in its pursuit of distributing the benefits to the providers of the resources. The proposed new subscription-based model does not address the asymmetrical benefit flow towards the providers of the genetic resources but only addresses the fund generation to the BSF. The compromise proposal attempts to solve these redistribution failures by fundamentally restructuring the ABS architecture by shifting from “track-and-pay” to an access regulated subscription model. This reorientation aims to ensure a stable income to the fund other than through voluntary contributions (Currently at 97.4% of the BSF). However, the cost of procedural certainty comes with significant cost of pre-cleared access to the genetic resources for provider-nations. For this reason, the new proposed mechanism does not solve the larger issues of the redistribution failure of the current MLS. The proposed scheme is more aligned with a centralised pooling model, PGRFA made available through the MLS and payments are collected in a common fund administered by treaty bodies. The benefit sharing under the new scheme is no longer linked with the provider state but redistributed through institutional decision-making, weakening the provider country’s control over access to and benefits from the resources.

A critical evaluation of the proposed subscription-based payment scheme reflects that it is faulty and structurally counterproductive to the objectives of the ABS mechanism. The traditional ABS mechanism enables regulated access granted by the ‘holder’ of the genetic resources on the condition that the providers would benefit from the utilisation of such genetic resources, including monetary and non-monetary means. This regulated access is conditioned on a Prior Informed Consent (PIC) on Mutually Agreed Terms (MAT), which respects and integrates the value embedded in acknowledging the holder’s role in conserving, improving, and making available these resources for further development. The true functionality of the ABS mechanism is the reiteration of ownership on genetic resources with the holder while ensuring that the resources are made available for research and development thereby meeting the goals of food security rooted in sustainable development. The current subscription-based payment scheme combined with the proposed enhancement of the MLS, threaten to erode the normative premise that the genetic resources remain under the control of the holder and can only be accessed under a consent-driven ecosystem. This successfully redefines a sovereign right into a market commodity and forced marketisation of biological heritage as critiqued by Chidi Oguamanam. It is also integral to note that even if the subscription model generates funds, it categorically separates the benefits from the actual provider country.

While the proposed subscription model seems pragmatic in ensuring guaranteed revenue to the BSF, I argue that creating a payment for access model over a rights-based model creates problematic precedents that are likely to reverberate in future biodiversity negotiations. The proposed model shifts the rights-based regime to an access-management framework. The benefits that flow towards the providers essentially becomes an institutional decision which historically privileges dominant powers in international organisations. Negotiating away sovereignty over resources for a potentially more reliable redistribution pathway may not justify the associated costs. It is ideal to have a more efficient system to track use and to put active onus on the users to share benefits including blockchain technology rather than systemically shifting the ABS matrix.

Procedural Lacuna and The Package Deal

The compromise proposal was met with critical dissent as developing nations expressed concerns over lack of transparency, stressing that the proposals were brought in the plenary in the evening of the final day without providing substantial time for discussion. The compromise proposal was further only available in English language alone. The last-minute proposal indicates procedural inequity vitiating the sovereign consent. Furthermore, the compromise text being in English alone pushed language asymmetry creating structural disadvantage thereby narrowing the procedural fairness. This procedural pattern succeeds in structurally excluding the Global South from meaningfully participating in high-stake negotiations. These exclusions, identified as epistemic marginalisation, has historically functioned as a form of manufacturing consent within Third World Approach to International Law traditions. This works by treating certain languages and forms of legal reasonings as peripherical to what counts as authoritative deliberations. These dynamics reflect a broader pattern where dominant actors sustain their positions, not through force but by securing consensus of their world view as natural and neutral. The Package Deal’s procedural conditions, framed as administratively neutral, repeats similar pattern, i.e., the procedural compromise obscures the extent to which the underlying terms were never open to genuine contest.

Packaging the enhancement of the Annex I list along with DSI inclusions in the compromise draft, raises questions on manufacturing consent. The demand on inclusion of DSI in the treaty is merely a response to the technological advancement, on the contrary the forced inclusion of the more crops into the MLS is suggestive and packaging them together threatens the autonomy of the providers over their resources. Echoing similar concerns during the WTO Uruguay Round of GATT negotiations, B.S. Chimni, argued that the third word was offered the Final Act as a single undertaking without provision to accept individual agreements separately. He further argues that the third world countries gained little from the GATT ‘package deal’, ‘undermining the legitimacy of single undertaking practice.’ The latest compromises of the proposed ‘package deal’ are also dubious at best. The close-door negotiations and the lack of transparency, as raised by India and Uganda in the forum, are detrimental to the future of the Treaty itself. This procedural marginalisation reflects broader patterns of centralized administrative efficiency over epistemic and sovereign rights of the providers as demonstrated by scholars like Chidi Oguamanam and B.S. Chimni.

This shift from sovereignty grounded rights-based regime to an access facilitation network regulated by access-fees commodifies genetic heritage of developing nations for the sake of administrative efficiency.

Conclusion

The Eleventh session of the Governing Body signalled a structural, fundamental, and philosophical shift in the MLS system. The crisis and response are not merely technological and administrative but rather structural and normative. This fundamental shift is threefold: 1. Stretching a material-based treaty design into a non-material (digital) utilisation along with the expansion of crops under the MLS; 2. The shift in the ABS regime into an access management mechanism; 3. A manipulation of a sovereignty based regulated access into a pre-cleared and price tagged utilisation model, which undermines the autonomy of the providers. The compromise package further aids in this shift and is used to mask the distribution failure in the current system. This shift from sovereignty grounded rights-based regime to an access facilitation network regulated by access-fees commodifies genetic heritage of developing nations for the sake of administrative efficiency.

Fundamentally the questions remain: how can a systemic structure that is constructed to address the questions onmaterial-based treaty govern a non-material digital sequence data transfer? Will this necessarily address the failure of redistribution in the system? The MLS and the ABS framework at large must evolve into a hybrid material–digital architecture to remain legitimate and adopt a stronger benefit sharing mechanism to meet the goal of distributive justice and not shift from its core values of the Treaty. While the proponents of the expansion proposal argue that it aims to strengthen equity, the feasibility and conceptual coherence remain contested, given the asymmetrical benefit flow from the current system. This proposed subscription model also indicates the shift in the international jurisprudence on PGRFA, from regulated access based on sovereignty over the contracting parties to merely access management. Any reform on the system must be rooted in the normative foundation of the Treaty principle, acknowledging the autonomy and sovereignty of the providers and holders of these resources. The need of the hour is a hybrid material-digital architecture that prioritized justice over mere administrative convenience. Any reform hence must move beyond the access management and acknowledge the autonomy and sovereignty of the holders of these resources.