TWN Info Service on Biodiversity and Traditional Knowledge (Aug24/07)
16 August 2024
Third World Network

CBD: Difficult discussions continue on digital sequence information  

Montreal, 16 August 2024 (Nithin Ramakrishnan) – Discussions at the Ad Hoc Open-ended Working Group on Benefit-sharing from the Use of Digital Sequence Information on Genetic Resources continue to be contentious. A conference room paper (CRP) will be issued today, the last day of the Working Group’s 2^nd meeting, only a few hours ahead of its closing session.

The concerns relating to the nature of the benefit sharing provisions – i.e., whether they are obligatory or voluntary – remain.

The second non-paper was issued in all U.N. languages yesterday, 15 August 2024, and was heavily criticised by the developing countries for not being reflective of their concerns and demands. The previous version of the non-paper was also criticised for not being reflective of the various proposals made during the plenary discussion on the elements proposed by the Co-Chairs for the further development of the multilateral mechanism.

Egypt, on behalf of the 54 countries of the African Group, lamented that the non-paper “fails to strike balance”. The African Group said that there is a lack of clear language which establishes benefit sharing obligations, monitoring mechanisms and provisions for non-monetary benefit sharing. It cautioned that such tendencies could lead to a lack of trust in the Working Group which would affect the negotiations.

Similarly, Argentina on behalf of GRULAC, also pointed out that their demands were not adequately reflected in the non-paper.

India also defended the issues of sovereign rights over genetic resources, which the non-paper seems to have forgotten.

Africa insists on legally-binding benefit sharing, mechanism to ensure DSI is not shared illegally

The major demands of the African Group throughout the week were two-fold:

Firstly, the CBD multilateral mechanism should create legally-binding benefit sharing obligations on the users of digital sequence information (DSI) on genetic resources, for both monetary and non-monetary benefits.

Secondly, the CBD multilateral mechanism should adopt measures such as the establishment of a DSI database within the existing ABS clearing house mechanism, which shall provide legitimate means to make DSI publicly available in accordance with the national laws of the countries of origin of the genetic material from which DSI is derived.

The Group also called for the provisions to encourage existing sequence databases to ask for verifiable documents from the DSI uploader, indicating their legal rights to make DSI publicly available in accordance with the national laws of the countries of origin of the genetic material from which DSI is derived.

Several members of the Group, and a couple of other developing country Parties supported the proposal made by the Third World Network (TWN) to obligate Parties sponsoring the sequence databases to ensure that such databases take measures to implement the DSI decision.

The African Group also raised the stakes in the discussion on non-monetary benefit sharing. It clearly explained that monetary benefit sharing and non-monetary benefit sharing are not either/or options, as both have to be mandatory. The gross injustices developing countries faced during the Covid-19 pandemic emergency, where vaccines were hoarded by the developed countries and technology licences were not given to developing country manufacturers, underscore the importance of this issue.

India calls out elephant in the room: CBD compatibility of public databases

India was entirely on point in focusing attention on the usage of the phrase “public databases”. The entire decision rests on the use of DSI from public databases. As such, it is critical that the public databases, as a priority, respect the rights of the Parties recognized under the CBD.

The premise of the multilateral mechanism is that Parties decide which DSI enters public databases, and the multilateral mechanism collects benefits from the use of DSI from such databases. But for this premise to stand intact, the public databases need to respect the decisions and laws of the Parties over the genetic materials and sequence information generated from them.

If the databases neglect the national laws of the countries of origin of genetic materials and allow sharing of DSI anonymously, the logic and structure of the entire of multilateral mechanism fails. “How can the multilateral mechanism claim benefits arising from the use of such DSI?” asked India.

India then proposed to develop a data governance framework for the sharing of DSI under the multilateral mechanism. It also proposed to alter the language in the non-paper from “use of DSI from public databases” to “use of DSI from CBD-compatible databases”.

Parties are committing to use the multilateral mechanism for finding better resources of biodiversity conservation and sustainable use, while they have full rights to continue using their national access and benefit sharing (ABS) systems. Thus Parties, especially mega biodiverse countries, are effectively transferring some part of their economic opportunities to the international community and the CBD multilateral mechanism, for global public good.

Therefore, it should be the duty of the mechanism and the international community to respect the rights of the Parties that are at the heart of these economic opportunities.  Anonymous use of the databases and data leaks will undermine the sustainability of benefit sharing in the long run, both for the Parties and the multilateral mechanism.

GRULAC demands differential treatment for developed and developing country users

In an attempt to secure more fairness and equity, GRULAC countries insisted that the multilateral mechanism reflect the differential treatment afforded to developed and developed country Parties under the Convention. They demanded that the obligations on sharing monetary benefits should rest on the users of DSI from the developed countries.

Some other developing countries, such as India, also supported this demand. “A multilateral ABS system can be fair and equitable only if it provides differential treatment to developing countries,” a negotiator told TWN.

Developed countries attempt to exclude technology from benefit sharing obligations

The developed country Parties, such Norway, Japan, Switzerland and Korea, continued to press hard to avoid any form of legal obligations on the users of the DSI to share benefits fairly and equitably – either contractual or legislative. They also stressed the need to avoid any formalisation of frameworks or schemes for sharing non-monetary benefits such as technologies developed using DSI.

Discussions on non-monetary benefit sharing were further taken up in a Contact Group on the evening of 15 August.

In paragraph 3 on non-monetary benefit sharing, the second non-paper deleted a phrase, “subject to individual circumstances”, that was used in the first non-paper. That clause made non-monetary benefit-sharing voluntary and some developed country Parties were keen to reinsert it.

A regional developing country group pointed to the list of sectors highly dependent on the use of DSI in Enclosure A of the document, and suggested developing specific non-monetary benefit sharing frameworks for each sector in due course.

Responding to an observer comment regarding the injustices experienced by developing countries during the Covid-19 pandemic, where vaccines and diagnostics developed using DSI were hoarded in the developed countries, a developed country Party insisted that the CBD multilateral mechanism is not a legally-binding mechanism and therefore cannot force companies to share life-saving products like medicines, or technologies that are global public goods.

Turning a blind eye towards gross injustices such as the inequities in access to medicines created by pharmaceutical monopolies, that Party called instead for the multilateral mechanism to “incentivize” and “encourage” companies to share more non-monetary benefits.

Other developed country Parties pushed to add “mutually agreed terms” to the clause calling for technology transfer as benefit sharing. One developed country Party dismissed concerns for the need for non-monetary benefit sharing and called instead for “academic research” on how such benefits can be shared.

“All torch bearers of open science fall silent the moment someone asks to share outcomes of the scientific process. How disingenuous it is to see that delegations who want to promote monopolies over technology are the same delegations who call for open access to research data. Their notion of open science is not consistent with the UNESCO Recommendation of the Open Science 2021”, a senior developing country delegate told TWN. +