Moving forward with the international undertaking: Legal mechanisms to alleviate mistrust

The International Undertaking (IU) ' a non-binding intergovernmental agreement to promote the conservation, exchange and utilization of plant genetic resources ' was conceived in controversy during meetings held by the Food and Agriculture Organization (FAO) between 1981 and 1983. The acrimony and distrust that characterized those discussions, and indeed much of the history of germplasm development and exchange, continues to influence the negotiations to revise the IU to bring it in harmony with the Convention on Biological Diversity (CBD). The issues of scope, access and benefit-sharing have been particularly divisive. The critical issues are so inter-related that it is difficult for parties to make progress on one when uncertainty exists on the resolution of the others. Mistrust can be a serious stumbling block to reaching agreement. With time running short before the self-imposed deadline of completing the negotiating process in 2000, it is important for the parties to explore ways to signal their willingness and ability to foster trust. This paper explores legal mechanisms that may help parties overcome the barriers that cause them to act with suspicion. Specifically the paper explores resolutions, memorandum of understanding, letters of intent, and traditional and emerging diplomatic mechanisms. An evaluation of these tools and experience shows that there can be value in: (1) disaggregating specific elements of negotiation, (2) identifying common interests and principles that will govern and/or have to be incorporated into the final agreement, and (3) establishing a process whereby it is politically difficult to ignore the outcome and recommendations. The paper concludes by suggesting the negotiators may wish to consider various alternatives for moving forward including: (1) separating the benefit-sharing issue and addressing it during the negotiating process through a unilateral letter of intent, (2) signing a mutual letter of intent or memorandum of understanding outlining the intentions of the parties or relevant groupings of parties on controversial issues, or (3) signing a letter of intent or memorandum of understanding that separates controversial issues and establishes a process by which they will be resolved.