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THIRD WORLD RESURGENCE

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.

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.'   


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.      


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'.  


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.  

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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