Info Service on Biodiversity and Traditional Knowledge (Jul18/02)
Austin/London, 18 Jul (Edward Hammond and Lim Li Ching) - Discussions at a subsidiary meeting of the Convention on Biological Diversity (CBD) unravelled spectacularly on the issue of sequence information of genetic resources.
As a result, the entire draft decision containing recommendations to the next Conference of the Parties (COP) of the CBD in November 2018, to be held in Sharm El-Sheikh, Egypt, has been squared bracketed, indicating no agreement.
This is in addition to the document containing another thirty-four square brackets around specific text.
A corresponding draft decision for the next Conference of the Parties serving as the meeting of the Parties (COP-MOP) to the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization is similarly bracketed.
The failure to make progress reflects the high stakes related to sequence information.
Developed countries, whose biomedical and biotechnology industries increasingly rely on sequence information for product development, are seeking to preserve the status quo of "free" access to sequences, while biodiverse developing countries seek benefit sharing from commercial use of sequences in line with the sharing required for use of genetic resources by the CBD and Nagoya Protocol.
The twenty-second meeting of the CBD's Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA-22), took place from 2-7 July 2018, in Montreal, Canada.
The issue of sequence information, or digital sequence information on genetic resources, has gained increasing importance as countries have become concerned that the proliferation of sequence and other genetic information in internet databases and other locations is promoting biopiracy.
["Digital sequence information on genetic resources" is being used as a placeholder term in the CBD discussions as there is no agreement yet on the terminology or definition.]
"Free" access to sequences without a requirement for benefit sharing would severely undermine the third objective of the CBD, and that of the Nagoya Protocol, which is the fair and equitable sharing of benefits arising from the utilization of genetic resources.
At the last COP and COP-MOP meetings in Cancun, Mexico in December 2016, Parties had agreed to a process to start serious work on the issue: views were collected from Parties and a fact-finding study conducted, followed by a meeting of an Ad Hoc Technical Expert Group (AHTEG).
SBSTTA-22 considered the outcomes of this process and was tasked with making appropriate recommendations for the next COP and COP-MOP.
From the beginning, this was clearly going to be a difficult task as Parties held sharply divergent views.
Developing countries, who are mainly the provider countries and hold a great wealth of biological diversity, wanted sequence information to be squarely part of the CBD and the Nagoya Protocol, and for obligations on sequences to mirror those for genetic resources collected in the field.
They asserted that sequence information at some point originated from a physical source, and that it is a subsequent use derived from access.
As such, the use of sequence information is a product of utilisation of genetic resources and therefore there are obligations for fair and equitable benefit sharing.
In this regard, at the first consideration of the issue in plenary, Brazil, speaking for the Group of Latin America and Caribbean Countries (GRULAC), provided a detailed proposal for the recommendations, focused on capturing benefits from commercial use of sequences by companies and offering developed countries ( and others), "simplified access" to sequence data.
Brazil was thereby suggesting standardized - and hence easier - access and benefit sharing procedure for databases, a proposal that should have been of keen interest to the developed countries.
Malawi, speaking on behalf of the Africa Group, also stressed that sequence information was within the scope of the CBD and the Nagoya Protocol and that therefore, its utilisation was subject to benefit sharing obligations.
Other Parties who made similar points included Bolivia, China, Colombia, Ethiopia, India, Malaysia, Rwanda, South Africa, Sudan and Venezuela.
On the other hand, developed countries, such as Australia, Belgium, Canada, the European Union, France, Germany, Sweden, Switzerland and the United Kingdom insisted that genetic sequences, under the CBD, cannot be considered to be equivalent to genetic resources.
Due to the divergent views, a Contact Group was immediately set up, which met on the first night of the meeting.
The co-chairs were Hendrick Segers (Belgium) and Hesiquio Benitez (Mexico).
A non-paper was produced by the co-chairs after the first meeting and became the basis of discussions. However, due to the still widely divergent views, a " Friends of the Co-Chairs" group was set up after the second meeting.
Parties in the "Friends of the Co-Chairs" group were Brazil, Bolivia, Canada, the European Commission, Ethiopia, India, Mexico, New Zealand, South Korea and Switzerland.
By the time the Contact Group met again on the afternoon of Friday, 6 July, the smaller group had achieved some compromise, with few brackets remaining in the text.
The main points of contention were with respect to the crux of access and benefit sharing issues. Disagreement remained over whether there should be benefit sharing if there was the commercial use of sequence information.
A proposal for the CBD Executive Secretary to commission a study on benefit sharing associated with sequence information was bracketed.
Similarly, tasks for the AHTEG to consider mechanisms for the fair and equitable sharing of benefits derived from the commercial utilization of sequence information and for ensuring compliance with benefit-sharing obligations from the utilization of sequence information as well as subsequent applications and commercialization were not agreed to.
GRULAC's proposal to subject the use of sequence information for research and development to simplified measures, was also not agreed to.
This was a major concession by provider countries to allay the fears of the developed countries that research and development would be stopped if sequence information were to be subject to benefit sharing requirements.
Language to facilitate access and support the exchange and use of sequence information, which was a demand of the developed countries, was also not agreed to.
In the corridors, European delegates claimed that they rejected the "simplified access" proposal because "we don't know what it means," even though the term is found in the Nagoya Protocol.
To anyone familiar with access and benefit sharing negotiations, GRULAC's offer was clearly a friendly gesture to the developed countries, and Europe's failure to take up the opportunity - as well as an African invitation to work on the definition of digital sequence information - led many observers to conclude that Europe was delaying and not seriously engaged in the discussion.
When the "Friends of the Co-Chairs" outcome came back to the Contact Group near the close of the meeting, it quickly became clear that the deep divisions between developing and developed countries had not been worked out.
Finland, with support from Switzerland, was eager to have the text state that "open access" to sequences provides benefits, but the two European countries rejected the proposal of Malawi and Malaysia, on behalf of the Like-Minded Group of Megadiverse Countries (LMMC), to balance the European position by noting that the benefits should be shared fairly and equitably.
With this inauspicious start to the final Contact Group meeting, the week's negotiations began to unravel.
Brazil, speaking on behalf of GRULAC and the LMMC, regretted that their compromise proposal for simplified measures was not accepted and rued the major resistance by some developed countries that continued to block the furthering of the discussion on benefit sharing.
It then asked to re-introduce its previous text that stated that benefits from the commercial use arising from utilisation of sequence information arising from access shall be shared in a fair and equitable way, and that simplified measures for non-commercial research and development should be subject to domestic legislation.
This was followed by a succession of Parties, both developing and developed, reverting to more hardline positions and re-introducing text that reflected these.
All of these re-appearing proposals were placed in square brackets.
As co-chair Benitez went through the document, more and more brackets were added.
Finland then said there were too many issues to be dealt with and therefore asked for the paragraph referring to the establishment of the AHTEG and the Annex containing its terms of reference, to be bracketed.
The issue of the AHTEG was a compromise already, as developing countries ha d initially asked for an Open- Ended Working Group, which is a negotiating body, to work out benefit sharing mechanisms for sequence information, a proposal that has sound justification given the implications of the issue, which reach well beyond the technical considerations that are typically an AHTEG's charge.
They had agreed to the compromise of an AHTEG, which is a technical body, to consider the issue instead.
However, given that everything was back on the table, Malawi then asked for the option of the Open-Ended Working Group to be included again in the text.
Finland then asked for the entire draft decision text to be put in square brackets.
With that, in less than two hours, all the work that had gone on in the week before had unravelled, despite attempts by the developing countries to put forward reasonable and compromise oriented proposals.
The intransigence of some developed countries, to refuse to engage in discussions on benefit sharing for sequence information at all, was squarely to blame.
At the plenary, the co-chairs recommended that the bracketed Conference Room Paper be adopted directly as an "L document" without further discussion or amendment.
The Chair of SBSTTA-22 accepted this proposal and called for all the recommendations, as bracketed, to be forwarded to the COP.
Japan again brought up its contention (which it had repeated from the start of the meeting) that sequence information was a "new and emerging issue" and that there should be a procedure to assess whether or not this was the case.
SBSTTA has a procedure for identifying and assessing new and emerging issues, and Japan questioned whether due process has been followed.
However, the CBD Deputy Executive Secretary explained that since the mandate given to SBSTTA to address this topic came from CBD and Nagoya Protocol decisions, this was independent of any process that SBSTTA has for identifying new and emerging issues.
Clearly, the Parties to the CBD and Nagoya Protocol are aware that the sequence information is a critical and important topic that needs to be addressed urgently.
It would be up to them to do so at their next meetings in November 2018 in Sharm El-Sheikh, Egypt, where the topic of sequence information will no doubt be the most hotly debated.