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Mixed
reactions on new access and benefit-sharing treaty
The
palpable relief of adopting a number of major decisions at the recently
concluded meeting of Parties to the Convention on Biological Diversity
(CBD) was accompanied by lingering doubts over the new treaty on access
and benefit-sharing.
Chee
Yoke Ling
AFTER
almost six years of work launched officially in 2004 and a marathon
negotiation session lasting 15 days and most nights prior to (13-15
October) and during the 10th meeting of the CBD Conference of Parties
(18 to 29 October) in Nagoya, Japan, the 'Nagoya Protocol on Access
to Genetic Resources and the Fair and Equitable Sharing of Benefits
Arising from Their Utilisation' was adopted.
The
objective is 'the fair and equitable sharing of the benefits arising
from the utilisation 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, thereby contributing to
the conservation of biological diversity and the sustainable use of
its components'.
Most
government delegates said that the Protocol is imperfect but that they
could 'live with it'. Bolivia,
Cuba, Ecuador and Venezuela, representing the views
of the regional Bolivarian Alliance for the Peoples of Our America (ALBA),
put on record that they could not accept a Protocol that failed to meet
the minimum requirements of preventing biopiracy. However, they did
not stand in the way of all the other Parties that agreed to adopt the
Protocol.
COP
10 adopted the Nagoya Protocol on ABS and established an Open-ended
Intergovernmental Committee to prepare for the first meeting of the
Parties to the Protocol. The Committee will meet on 6-10 June 2011 and
23-27 April 2012. The Protocol will be open for signature by governments
at the UN headquarters in New
York from 2 February 2011 to 1 February 2012.
Fifty ratifications are needed for the Protocol to enter into force.
Fernando
Casas (Colombia)
and Timothy Hodges (Canada),
the Co-Chairs of the Open-ended Working Group on ABS that was mandated
by COP 7 in 2004 to negotiate the treaty, were nominated by Argentina and supported by the COP
to also co-chair the new Committee. Argentina will be chair of the Group
of 77 developing countries in 2011.
However,
at the closing plenary past midnight into 30 October, Bolivia, Cuba,
Ecuador and Venezuela expressed their deep disappointment over the ABS
Protocol and put on record their rejection of the document even though
they decided not to block its adoption.
Venezuela, on behalf of ALBA, said
that eight years ago (when heads of state decided on an international
regime on ABS at the Johannesburg Summit) there were expectations of
an ABS document that would stop the 'scourge of biopiracy'. However,
it said that the negotiated document has suffered many changes and does
not contain what is needed.
Bolivia's Aldo Claure Banegas said
that the Protocol does not fully reflect the views of all Parties and
it could not accept the document. It added that in implementing the
CBD, Parties should take into account the intrinsic value of biodiversity,
and the ecological, genetic, social, economic, scientific, educational,
cultural, recreational and aesthetic values of biological diversity
and its components, as this is stipulated in the preamble to the CBD.
Throughout the two weeks, Bolivia
consistently opposed what it saw as the commodification of nature in
the various draft decisions under negotiation.
(Among
the decisions that were finally adopted, one relates to 'Engagement
with Business' and there were several side events with corporations
involved, including a few co-organised with the CBD secretariat and
the Global Environment Facility.)
Cuba said that the years of work to
help poor countries have been diminished, and though it also did not
agree with the document, it did not stand in the way of consensus.
Brazil's Luiz Machado said that it
did not want to stand in the way since it was a 'delicately balanced'
document. Brazil
is also the current chair of the 17-member Group of Like-Minded Megadiverse
Countries (LMMC) that has been a key player throughout the years of
negotiations, being the grouping that strongly promoted the interests
of countries of origin of biological resources.
Namibia, on behalf of the Africa Group,
said that after all this time the Protocol is not the best of documents
'but we can live with it and more importantly, there is Article 25 on
review (of the Protocol). When it is implemented we can see how it is
- what we want is the best for Africa'.
It also wanted its statement to go into the record of the conference.
In
an interview with Third World Network, the chief negotiator of Malaysia,
Gurdial Singh Nijar, emphasised that a detailed analysis of the Protocol
needs to be done before developing countries sign on to the new treaty.
What was unacceptable, he said, was that negotiators who worked hard
for almost six years did not get to finish their work and ultimately
the Protocol as it stands was imposed on Parties, as the text of the
final and most contentious issues were essentially determined by a handful
of people in a non-transparent and non-participatory manner. Many negotiators
were prepared to continue working, and if needed, an extension of time
could have been agreed on, with adoption later at an Extraordinary COP
meeting in 2011.
(This
happened with the CBD's first protocol, the Cartagena Protocol on Biosafety,
which failed to be concluded at the Cartagena COP meeting and was later
adopted in an Extraordinary COP session in Montreal.)
Marathon
negotiations and contentious issues
Prior
to the COP 10 meeting, the Inter-regional Negotiating Committee (ING)
convened for a three-day meeting on 13-15 October that extended into
the morning of the fourth day. This Committee was set up by the Open-ended
Working Group on ABS early this year to enter into full negotiations.
The mandate of the Open-ended Working Group and with it the ING ended
on 16 October.
The
opening COP 10 plenary on 18 October proceeded to establish the Informal
Consultative Group (ICG) that was to complete its work to finalise the
ABS Protocol by 22 October and this was further extended twice due to
the wide divergence between developing and developed countries on key
issues of the Protocol.
On
25 October, the Co-Chairs reported to the COP 10 plenary on progress
made and the outstanding unresolved issues. Yet another deadline of
28 October was given but negotiations reached a deadlock.
At
this point, the COP 10 Presidency convened a 'facilitating group'. The
European Union, Namibia
(for the Africa Group), Brazil
(recognised for its role as the LMMC chair and a key regional spokesperson)
and Norway
(representing a bridging viewpoint) were invited to be part of this
facilitating group. The Like-Minded Asia-Pacific Countries were noticeably
unrepresented even though they were among the most active players throughout
the negotiations.
On
28 October, the second last day of COP 10, negotiations went off the
public track, with many negotiators themselves at a loss as to what
was happening. Frustration and speculation abounded in the corridors.
Compromise text was floated on the unresolved issues of scope and compliance
but this was again not successful.
On
the last day, 29 October, the COP 10 Presidency took over the negotiations,
taking them to a ministerial level. However, the chief negotiators of
the countries concerned were in attendance, according to those involved.
The
unresolved issues were essentially about the scope of the Protocol and
the strength and effectiveness of the compliance mechanism, and a 'balance'
was finally struck by the COP 10 Presidency (Japan)
largely with the participation of the European Commission negotiators.
The resulting President's draft Protocol was distributed on 29 October
morning and regional groups met with the Japanese Minister Ryu Matsumoto
who basically persuaded all Parties to accept his text.
It
should be noted that by this time, a considerable part of the Protocol
had already been agreed to by Parties in the intergovernmental setting,
and the compromise presented by the COP 10 President worked with the
language that was in brackets. The new addition was the multilateral
fund proposed by the Africa Group.
However,
all negotiators (as is the UN practice) worked on the understanding
that 'nothing is agreed until everything is agreed' this is to allow
them to consider a treaty in its entirety when all provisions have been
individually agreed to.
In
this case, the provisions on access had been resolved first except for
a few aspects, under which developing-country Parties assume additional
obligations to those found in the CBD (see box 'Access obligations increased').
With the final weak compliance provisions and critical aspects of traditional
knowledge left out of the Protocol, the overall implications for developing
countries need careful analysis.
Scope
On
scope, there were several aspects.
First,
the definition of the terms 'utilisation of genetic resources' (the
CBD requires benefit-sharing for the commercial and other utilisation
of genetic resources) and 'derivatives'of genetic resources took up
considerable time over the past year. Developed countries wanted a narrow
definition and developing countries the opposite. The final definition
is open to interpretation.
According
to Hartmut Meyer, a scientist who participated in the ABS negotiations
for the past five years and was also a participant at the experts' workshop
convened by the CBD secretariat on concepts, terms and definitions of
the Protocol in 2009, it would seem that access to purified extracts
that do not contain DNA any longer is not under the Protocol.
However,
Meyer said that access to extracts that contain DNA and to any other
biological material for research and development purposes using all
molecules of the material is under the Protocol. All these extracts
are important for the Protocol because at least 90% of all known biopiracy
cases involve these substances (see box 'Legal definitions can create
loophole').
Secondly,
China, India,
Malaysia, Nepal
and the Philippines
especially argued strongly for benefit-sharing from the use of traditional
knowledge that is publicly available and not identifiable with any specific
indigenous or local community and thus belongs to the State. China, India
and Nepal
are particularly affected as they have ancient traditional knowledge
that is widespread but well documented relating especially to medicinal
formulations and treatments.
Such
knowledge continues to be freely accessed and the long-available therapeutic
formulations and consequential products are regularly patented in developed
countries as 'inventions' with 'novelty' value. This was in Article
9.5 of the draft Protocol until late 28 October, but did not make it
to the final document. A final attempt by China to offer compromise language
for Article 9.5 was rejected by developed countries.
However,
the preamble to the Protocol does recognise 'the unique circumstances
where traditional knowledge associated with genetic resources is held
in countries, which may be oral, documented or in other forms, reflecting
a rich cultural heritage relevant for conservation and sustainable use
of biological diversity'.
Thirdly,
the acquisition and use of genetic resources before the entry into force
of the new ABS Protocol was also debated. Developing countries argued
for benefit-sharing of continuing and new uses of such genetic resources
even though the genetic resources were obtained prior to the entry into
force of the Protocol and now reside in public and private ex situ collections
mostly in developed countries.
Fourthly,
another major subject of discussion centred on benefits derived from
resources collected in areas outside national jurisdiction such as the
high seas and the Antarctica region.
The Africa Group in particular argued that while access cannot be regulated
in these situations, no one should be allowed to benefit from these
resources without sharing with the rest of the world.
The
Africa Group proposed a multilateral fund for the benefits that cannot
be linked to a specific country of origin or providing country under
the CBD. The Protocol now contains the following provision in Article
7bis:
'Parties
shall consider the need for and modalities of a global multilateral
benefit-sharing mechanism to address the fair and equitable sharing
of benefits derived from the utilisation of genetic resources and traditional
knowledge associated with genetic resources that occur in transboundary
situations or for which it is not possible to grant or obtain prior
informed consent. The benefits shared by users of genetic resources
and traditional knowledge associated with genetic resources through
this mechanism shall be used to support the conservation of biological
diversity and the sustainable use of its components globally.'
However,
the provision is for a 'mechanism' and it is not clear if this means
an actual fund. Secondly, the mandate is to 'consider the need for and
modalities of' such a mechanism. Such formulation for a biosafety protocol
in Article 19(3) of the CBD led to several years of debate on the 'need
for' before actual work on a protocol commenced. There is also no timeframe
for this to be established; the issue will be taken up at the second
meeting of the preparatory Intergovernmental Committee for the Protocol
in April 2012. The question, therefore, is whether this global benefit-sharing
promise is illusory.
Fifthly,
pathogens (viruses) used to develop vaccines and diagnostic kits were
another highly contentious issue. Developed countries to various degrees
wanted all these to be excluded from the Protocol, which according to
developing countries would result in an empty and meaningless Protocol.
The
final compromise is in Article 6(b): 'In the development and implementation
of its access and benefit-sharing legislation or regulatory requirements,
each Party shall: Pay due regard to cases of present or imminent emergencies
that threaten or damage human, animal or plant health, as determined
nationally or internationally. Parties may take into consideration the
need for expeditious access to genetic resources and expeditious fair
and equitable sharing of benefits arising out of the use of such genetic
resources, including access to affordable treatments by those in need,
especially in developing countries.'
A
preambular paragraph in the Protocol that was not negotiated but objected
to in the first reading by developing countries is as follows: 'Mindful
of the International Health Regulations (2005) of the World Health Organisation
[WHO] and the importance of ensuring access to human pathogens for public
health preparedness and response purposes, ...'
These
Regulations are interpreted by developed countries at the WHO as requiring
mandatory sharing of viruses, for influenza viruses of a pandemic nature,
currently being negotiated in a WHO ABS system. Such an interpretation
is disputed by developing countries.
Compliance
The
other highly contentious issue was the question of compliance that Co-Chairs
Casas and Hodges constantly underlined as the 'core of the core' of
the Protocol.
The
impasse was over the requirement of mandatory checkpoints to monitor
biopiracy resulting from non-compliance with the national ABS laws of
a country of origin/provider country of genetic resources. In addition
was the mandatory disclosure of information related to prior informed
consent of a government and/or that of an indigenous or local community.
The
final text requires one or more 'effective' checkpoints to be designated
but leaves it to a Party to choose what that may be. Developing countries
had insisted that patent and other intellectual property offices be
the minimal mandatory checkpoint, and this was highly resisted by developed
countries except for Norway.
An
indicative list of checkpoints to guide Parties in national implementation
of the Protocol was also resisted and this list no longer features in
the adopted Protocol. The contested and now deleted non-exhaustive list
was as follows:
_
Competent national authority in the user country;
_
Research institutions subject to public funding;
_
Entities publishing research results relating to the utilisation
of genetic resources;
_
Intellectual property examination/patent and plant variety
offices;
_
Authorities providing regulatory or marketing approval of products
derived from genetic resources/resulting from the use of genetic resources
or its derivatives;
_
Indigenous and local communities, including their relevant
competent authorities, that may grant access to traditional knowledge
associated with genetic resources.
Although
traditional knowledge and the rights of indigenous and local communities
have been given stronger recognition in the Protocol compared to the
CBD provisions, the compliance provisions on checkpoints do not cover
traditional knowledge.
Many
provisions are qualified with 'as appropriate' and 'where applicable',
leaving much to be interpreted at the national implementation level.
The
future of the Protocol and its impact in preventing biopiracy and ensuring
that the CBD objective of fair and equitable benefit-sharing is met
will continue to be fought out in the coming years.
This
article is reproduced from the South-North Development Monitor (SUNS,
No. 7032, 3 November 2010), which is published by the Third
World Network.
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Access
obligations increased
Chee
Yoke Ling
THE
CBD clearly reaffirms the sovereign rights of states over their
natural resources, and so Article 15(1) provides that 'the authority
to determine access to genetic resources rests with the national
governments and is subject to national legislation'.
No
one has the right to freely access a country's genetic resources.
The obligation under the CBD is that each Party 'shall endeavour
to create conditions to facilitate access to genetic resources
for environmentally sound uses' by other Parties and 'not to impose
restrictions that run counter to the objectives' of the CBD.
The
concept of 'countries of origin' is recognised and so at the initiative
of Mexico in 2002, 12 countries with
high biodiversity organised themselves into the Like-Minded Megadiverse
Countries Group (LMMC). There are now 17 members: Bolivia,
Brazil, China, Colombia,
Costa Rica,
Democratic Republic of the Congo, Ecuador, India,
Indonesia,
Kenya, Madagascar,
Malaysia, Mexico, Peru,
the Philippines,
South Africa and Venezuela. The LMMC was at the forefront
of safeguarding the interests of countries of origin in the ABS
negotiations.
The
CBD covers access provided by Parties that are countries of origin
or by the Parties that have acquired the genetic resources concerned
in accordance with the CBD.
Access,
where granted, shall be on mutually agreed terms, and subject
to prior informed consent (PIC) of the Party providing such resources.
A Party can choose to not require PIC - the European Union stressed
that this is something its member states will do.
The
quid pro quo for access is benefit-sharing and this is in Article
5(7) that requires each CBD Party to take 'legislative, administrative
or policy measures, as appropriate . with the aim of sharing in
a fair and equitable way the results of research and development
and the benefits arising from the commercial and other utilisation
of genetic resources' with the Party providing such resources.
Such sharing shall be upon mutually agreed terms, and includes
the sharing of technology.
The
lack of implementation of the third CBD objective of fair and
equitable benefit-sharing was worsened by more and more reports
of biopiracy, largely exposed by non-governmental organisations
(NGOs). At the insistence of developed countries, CBD Parties
only developed voluntary Bonn Guidelines on ABS, and not a legally
binding protocol. This led to the LMMC (supported by the Group
of 77 developing countries) succeeding in getting the 2002 Johannesburg
Summit on Sustainable Development to call for an international
benefit-sharing regime under the CBD.
At
the COP 7 meeting in 2004 in Kuala Lumpur, Malaysia, the LMMC urged Parties to
convene a working group to begin negotiations. The EU, Australia, Canada
and Switzerland
favoured the Bonn Guidelines and wanted to defer any new negotiations.
They also insisted that any regime must be about access as well.
The Africa Group supported a legally binding regime that balanced
access with benefit-sharing concerns, and that included technology
transfer. The mandate was finally to negotiate an international
regime on ABS.
Throughout
the negotiations until the Nagoya COP meeting, developing countries
(especially the Group of Like-Minded Asia-Pacific Countries formed
in November 2009 at the 8th meeting of the ABS Working Group)
stressed again and again that the question is not about balance
between access and benefit-sharing within the protocol, but rather
that the protocol seeks to correct the deep imbalance since the
colonial period when developing countries' biological resources
have been taken freely and most often without permission. Therefore,
the core and focus of the protocol has to be about benefit-sharing
obligations and an effective compliance system.
As
negotiations finally got going on text in 2010, it was clear that
most developed countries wanted to take the opportunity to ensure
access for their corporations and researchers. The EU wanted minimum
access standards to be included; Japan raised questions on the integrity
of national ABS laws and argued also for international access
conditions if it were to enforce compliance with the laws of other
Parties.
The
most extreme was Canada which insisted that 'national
treatment' be given by Parties requiring PIC for access to genetic
resources: 'Provide for equal treatment in applications for access
to genetic resources between similar domestic and foreign applicants
and between similar foreign applicants of different Parties.'
This was vehemently rejected by developing countries and several
developed countries also said this was too much.
The
adopted Nagoya Protocol saw the deletion of the Canadian proposal
and the inclusion of this option: 'Provide for fair and non-arbitrary
rules and procedures on accessing genetic resources' in Article
5 on Access to Genetic Resources.
Parties
now have to also take appropriate measures to provide for:
_
Legal certainty, clarity and transparency of their domestic ABS
legislation or regulatory requirements;
_
Information on how to apply for prior informed consent;
_
A clear and transparent written decision by a competent national
authority, in a cost-effective manner and within a reasonable
period of time;
_
The issuance at the time of access of a permit or its equivalent
as evidence of the decision to grant PIC and of the establishment
of mutually agreed terms (relating to access), and notify the
Access and Benefit-sharing Clearing-House accordingly;
_
Where applicable, and subject to domestic legislation, set out
criteria and/or processes for obtaining prior informed consent
or approval and involvement of indigenous and local communities
for access to genetic resources.
Parties
must also establish clear rules and procedures for requiring and
establishing written mutually agreed terms for access that may
include, inter alia:
_
A dispute settlement clause;
_
Terms on benefit-sharing, including in relation to intellectual
property rights;
_
Terms on subsequent third-party use, if any; and
_
Terms on changes of intent, where applicable.
On
access to traditional knowledge associated with genetic resources
that is held by indigenous and local communities, Parties shall
take appropriate measures in accordance with domestic law 'with
the aim of ensuring' that such knowledge 'is accessed with the
prior and informed consent or approval and involvement of these
indigenous and local communities, and that mutually agreed terms
have been established'.
'Special
considerations' are set out in Article 6 of the Protocol when
Parties develop and implement their ABS legislation or regulatory
requirements:
_
'Create conditions to promote and encourage research which contributes
to the conservation and sustainable use of biological diversity,
particularly in developing countries, including through simplified
measures on access for non-commercial research purposes, taking
into account the need to address a change of intent for such research.'
(emphasis added)
Though
there were no brackets around this paragraph in the last version
of the draft Protocol that was openly negotiated by Parties (as
of noon of 27 October), there was some uncertainty surrounding
its finality.
_
'Pay due regard to cases of present or imminent emergencies that
threaten or damage human, animal or plant health, as determined
nationally or internationally. Parties may take into consideration
the need for expeditious access to genetic resources and expeditious
fair and equitable sharing of benefits arising out of the use
of such genetic resources, including access to affordable treatments
by those in need, especially in developing countries.' (emphasis
added)
This
was a very controversial issue and remained unresolved and heatedly
debated till the last hours when the open negotiations by Parties
were terminated. The EU wanted immediate access and, with other
developed countries such as Australia,
also sought to expand the situations to 'pre-emergencies' - all
of which were considered by developing countries and observers
as an indirect way of excluding pathogens for vaccine development
from PIC requirements. Though 'expeditious' benefit-sharing is
also in the paragraph, a senior German health official, in a meeting
with some NGOs including Third World Network in Nagoya, admitted that his
government would not be able to ensure that German pharmaceutical
companies indeed share such benefits. The final text was formulated
by a small group under the auspices of the Japanese COP Presidency,
whose members are not officially known.
_
'Consider the importance of genetic resources for food and agriculture
and their special role for food security.'
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Legal
definitions can create loophole
Hartmut
Meyer
ONE
major problem in developing a comprehensive international anti-biopiracy
law is that the CBD defines ‘genetic material’ and ‘genetic resources’
through the term ‘containing functional units of heredity’, which
is essentially DNA.
This
means that where substances or products do not contain DNA, it
may be argued by some that these are outside the CBD scope.
Some
real world examples are as follows:
a)
Leaves – contain DNA
b)
Liquid extract of leaves – contains some DNA, but is not used
widely because biochemicals tend to degrade in water
c)
Alcohol extract of leaves – does not contain DNA (DNA does not
dissolve in alcohol), and is widely used because biochemicals
are well preserved in alcohol.
The
situation covered in (c) is, for example, seen in the InBio model
in Costa Rica,
the often-cited example of a good ABS practice. InBio, a Costa
Rican research institution, obtains genetic resources from the
country’s national forests, makes extracts, cleans these extracts,
and then offers them for access by institutions from other countries.
So the access is to ‘non-genetic resources’ as a result of the
definition of the relevant terms in the CBD.
At
the same time the InBio model of increasing scientific and technological
capacity in Costa Rica is regarded as a positive
model. So in the end, while the scientific capacity of a developing
country may increase in some way, the definitional trick can result
in shifting the regulation of access to ‘genetic resources’ (and
consequently benefit-sharing) out of the ABS Protocol.
This
is the reason why almost all national ABS laws cover access to
‘biological resources’, which include these DNA-free extracts
and even purified substances from biological origin.
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Some
progress on the rights of indigenous peoples and local communities
Chee
Yoke Ling
REPRESENTATIVES
of indigenous peoples' groups were very active throughout the
years of negotiations of the Protocol on Access and Benefit-Sharing.
The International Indigenous Forum on Biodiversity (IIFB) is the
platform that is officially recognised by Parties and the secretariat
of the CBD.
While
the participation of indigenous and local communities (the constituency
contained in the CBD) has been unprecedented among multilateral
treaty processes, the IIFB nevertheless registered its strong
disappointment with many aspects of the final Protocol text. As
with many government Parties and civil society organisations,
they were also critical of the lack of transparency and participation
in the last 48 hours of the Nagoya COP negotiations.
While
the Protocol goes further in spelling out the rights of indigenous
and local communities relating to access and benefit-sharing,
it failed in some critical aspects. The most glaring is the removal
of traditional knowledge from Article 13 on compliance measures
such as checkpoints to be designated by user-country governments
to prevent biopiracy and ensure that there has been prior informed
consent and benefit-sharing agreements, among others, related
to the use of genetic resources.
Until
the final stages, developing countries insisted that the compliance
measures to be taken must cover traditional knowledge associated
with genetic resources. All such references were in brackets due
to objections from almost all developed countries.
These
measures were to support user-country Parties' compliance obligations
under Article 12bis by monitoring and enhancing transparency on
the utilisation of genetic resources. (Article 12bis is about
compliance by users with the domestic ABS legislation or regulatory
requirements of countries from where the traditional knowledge
is accessed and used, such as those related to prior informed
consent of indigenous and local communities, and benefit-sharing
terms involving traditional knowledge associated with genetic
resources.)
The
adopted Protocol now does not oblige the compliance measures listed
in Article 13 to be applied to such traditional knowledge. They
apply only to utilisation of genetic resources.
Indigenous
rights declaration
Paragraph
25 of the Protocol's preamble, which notes the United Nations
Declaration on the Rights of Indigenous Peoples, was heavily contested
by several developed countries, especially Canada which still
has not signed on to the 2007 UN Declaration that has been endorsed
by almost all UN member states.
At
one point the various options appeared as follows with many qualifications:
'[Taking into account] [Affirming] [any established] [the existing]
rights [in national law] of [individuals,] indigenous and local
communities [and countries] to genetic resources and associated
traditional knowledge[, subject to national legislation where
applicable [and, where appropriate, the United Nations Declaration
on the Rights of Indigenous Peoples]].'
At
the closing hours of the Nagoya COP meeting, Canada
agreed to the weak compromise of just 'noting' the Declaration.
However,
preambular paragraph 26 affirms 'that nothing in this Protocol
shall be construed as diminishing or extinguishing the existing
rights of indigenous and local communities'.
(The
preamble of a treaty guides the interpretation of the operational
provisions contained in the various Articles.)
Rights
- and qualifications
The
scope of the Protocol applies to traditional knowledge associated
with genetic resources within the scope of the CBD and to the
benefits arising from the utilisation of such knowledge.
Although
the Protocol goes further than the CBD in spelling out the rights
of indigenous peoples and local communities, the provisions are
heavy with qualifications leaving much to the discretion of national
governments. These qualifications (see text in italics below)
were put in by both developed and some developing countries.
Article
4 on Fair and Equitable Benefit-Sharing states in paragraph 1,
'Each Party shall take legislative, administrative or policy measures,
as appropriate, with the aim of ensuring that benefits arising
from the utilisation of genetic resources that are held by indigenous
and local communities, in accordance with domestic legislation
regarding the established rights of these indigenous and local
communities over these genetic resources, are shared in a fair
and equitable way with the communities concerned, based on mutually
agreed terms.'
Article
5 on Access to Genetic Resources states in paragraph 1bis, 'In
accordance with domestic law, each Party shall take measures,
as appropriate, with the aim of ensuring that the prior informed
consent or approval and involvement of indigenous and local communities
is obtained for access to genetic resources where they have the
established right to grant access to such resources.'
A
separate Article 5bis deals with Access to Traditional Knowledge
Associated with Genetic Resources: 'In accordance with domestic
law, each Party shall take measures, as appropriate, with the
aim of ensuring that traditional knowledge associated with genetic
resources that is held by indigenous and local communities is
accessed with the prior and informed consent or approval and involvement
of these indigenous and local communities, and that mutually agreed
terms have been established.'
Article
9 is on Traditional Knowledge Associated with Genetic Resources,
requiring domestic law implementing the Protocol to 'take into
consideration indigenous and local communities' customary laws,
community protocols and procedures, as applicable, with respect
to traditional knowledge associated with genetic resources'.
The
effective participation of indigenous and local communities is
required when Parties establish mechanisms to inform potential
users of traditional knowledge associated with genetic resources
about their obligations.
Parties,
in their implementation of the Protocol, 'shall, as far as possible,
not restrict the customary use and exchange of genetic resources
and associated traditional knowledge within and amongst indigenous
and local communities in accordance with the objectives of the
Convention'.
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Women's
role in ABS recognised
Chee
Yoke Ling
THE
CBD preamble recognises 'the vital role that women play in the
conservation and sustainable use of biological diversity and affirm[s]
the need for the full participation of women at all levels of
policy-making and implementation for biological diversity conservation'.
Accordingly
the ABS Protocol preamble in paragraph 11 recognises 'the vital
role that women play in access and benefit sharing' and affirms
'the need for the full participation of women at all levels of
policy making and implementation for biodiversity conservation'.
Although
the substantive operational provisions are qualified (as are all
substantive provisions related to indigenous peoples and local
communities), these are nevertheless a step forward. Women in
rural societies across the developing world often have significant
roles in relation to biodiversity conservation and sustainable
use, but market economies and 'modernisation' inevitably result
in policies and the conferment of resource rights in ways that
marginalise and even deny women their rightful place.
In
Article 9 of the Protocol dealing with Traditional Knowledge Associated
with Genetic Resources, paragraph 3 states that 'Parties shall
endeavour to support, as appropriate, the development by indigenous
and local communities, including women within these communities,
of:
(a)
Community protocols in relation to access to traditional knowledge
associated with genetic resources and the fair and equitable sharing
of benefits arising out of the utilisation of such knowledge;
(b)
Minimum requirements for mutually agreed terms to secure the fair
and equitable sharing of benefits arising from the utilisation
of traditional knowledge associated with genetic resources; and
(c)
Model contractual clauses for benefit-sharing arising from the
utilisation of traditional knowledge associated with genetic resources.'
Despite
the qualified obligation, this is a substantive requirement that
enhances the role of women in deciding on community-level procedures
for prior informed consent and terms of access and benefit-sharing.
In
the provisions related to Capacity in Article 18, paragraph 3
states, 'As a basis for appropriate measures in relation to the
implementation of this Protocol, developing country Parties, in
particular the least developed countries and small island developing
States among them, and Parties with economies in transition should
identify their national capacity needs and priorities through
national capacity self-assessments. In doing so, such Parties
should support the capacity needs and priorities of indigenous
and local communities and relevant stakeholders, as identified
by them, emphasising the capacity needs and priorities of women.'
Paragraph
5 specifically provides that all the capacity-building development
measures set out in Article 18 may include 'special measures to
increase the capacity of indigenous and local communities with
emphasis on enhancing the capacity of women within those communities
in relation to access to genetic resources and/or traditional
knowledge associated with genetic resources'.
On
financing related to such capacity-building and development, the
CBD Conference of Parties acting as the Meeting of Parties to
the Protocol shall provide guidance to the financial mechanism
(in this case the Global Environment Facility). Such guidance,
according to Article 19(3), shall take into account the need of
developing country Parties, in particular the least developed
and the small island developing States among them, and of Parties
with economies in transition, for financial resources, as well
as the capacity needs and priorities of indigenous and local communities,
including women within these communities.
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Will
we share the biggest part of the benefits?
François
Meienberg and Christine von Weizsäcker
ONE
of the main issues in the ABS Protocol negotiations was genetic resources
held ex situ. It is obvious that a major part of genetic resources has
already been taken from the countries of origin during the past 400
years, and are now kept in botanical gardens (see figure), research
institutions, by genetic resource broker companies, companies for outsourced
access, and even commodities on the shelves of supermarkets. It was
thus a crucial question: Will we share the benefits arising out of the
utilisation of these resources or will the new Protocol legitimise the
biopiracy which has occurred since the time of colonisation?
Sharing
nothing but the benefits from the utilisation of genetic resources acquired
after the entry into force of the Protocol for a given country, would
mean refusing to share the biggest part of the benefits. Users would
be able to examine ex situ collections in their own country or in non-Parties
or check if the resource is available in the open market. If a user
has illegally accessed a genetic resource in a country of origin, he
would be able to pretend that he legally found it ex situ.
A
recent case: The Nestle rooibos patents
This
case exemplifies how benefits to Northern corporations are derived from
genetic resources first accessed long ago. Nestle has newly applied
patents on the use of rooibos for cosmetic purposes. Rooibos is clearly
an endemic plant to South Africa
and, even now, only grown in certain areas of South Africa. It is also evident that
everybody can find roiboos tea on the shelves of his neighbourhood supermarket.
Nobody will urge somebody who drinks rooibos tea at home to ask for
prior informed consent of the South African Focal Point (as this does
not fall under the common understanding of utilisation, as was once
again confirmed during the ABS working group negotiations). But reading
the CBD, it should be evident that the benefits - for example, out of
the commercialisation of the new use as cosmetics based on genetic resources
- should be shared with the country of origin.
It
is maybe one of the most widespread misunderstandings of CBD obligations
that benefits should only be shared when the genetic resource has been
accessed under the rules of the Convention. This is nowhere spelt out
in the Convention text. On the contrary, Art. 15 clearly states that
the 'benefits arising from the commercial and other utilisation of genetic
resources' should be shared fairly and equitably with the provider country.
Botanical
gardens show that it is possible
The
principles of Botanic Gardens Conservation International state, 'Share
benefits arising from the use of genetic resources acquired prior to
the entry into force of the CBD, as far as possible, in the same manner
as for those acquired thereafter.'
Moreover,
botanical gardens working together in the International Plant Exchange
Network (IPEN) have agreed to use a material transfer agreement which
includes the following paragraph: 'By signing this Agreement the recipients
commit themselves to act in compliance with the CBD and its agreed provisions
on Access and Benefit-Sharing. This includes a new Prior Informed Consent
(PIC) of the country of origin for any uses not covered by terms under
which it has been acquired (such as commercialisation).'
The
International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA) also does not differentiate between genetic resources accessed
by CGIAR centres (or other seed banks) before or after the coming into
force of the CBD.
These
examples show that it is state of the art to include ex situ accessions
into future benefit-sharing agreements - irrespective of whether they
have been accessed before or after the coming into force of the CBD.
Fortunately,
in the final version of the recently adopted Nagoya Protocol on ABS,
all wording which would have restricted the scope of the Protocol to
genetic resources and the associated traditional knowledge acquired
after the entry into force of the Protocol, has been deleted.
Therefore
new utilisations of genetic resources held ex situ are part of the Protocol.
In addition, the Protocol now also includes a mechanism to share benefits
of genetic resources that occur in transboundary situations or for which
it is not possible to grant or obtain prior informed consent. Art. 7bis
reads as follows:
'Parties
shall consider the need for and modalities of a global multilateral
benefit-sharing mechanism to address the fair and equitable sharing
of benefits derived from the utilisation of genetic resources and traditional
knowledge associated with genetic resources that occur in transboundary
situations or for which it is not possible to grant or obtain prior
informed consent.ÿThe benefits shared by users of genetic resources
and traditional knowledge associated with genetic resources through
this mechanism shall be used to support the conservation of biological
diversity and the sustainable use of its components globally.'
One
possible case under such a mechanism would be that of a genetic resource
which left the country of origin a long time ago and is now kept in
a botanical garden - but where the origin is not identifiable anymore.
However,
no timeframe is given for the setting up of this mechanism. This will
only be looked into at the second meeting of the preparatory Intergovernmental
Committee for the Protocol in April 2012.
François
Meienberg is with the Swiss non-governmental organisation Berne
Declaration. Christine von Weizsäcker is with Ecoropa.
*Third
World Resurgence No. 242/243, October-November 2010, pp 16-25
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