Panellists To CBD: Funds Needed To Save Biodiversity, Genetic Resources Not In Nagoya Protocol Should Be Included

SHARM EL-SHEIKH, Egypt – The access and benefit sharing protocol of the UN Convention on Biological Diversity is based on bilateral agreements between providers and users of genetic resources. There are, however, many cases where genetic resources are dispersed, and difficult to attribute to only one location. The issue is being discussed at the biennial meeting of the CBD member states, in particular the possibility of a global multilateral benefit-sharing mechanism to address those genetic resources not yet covered by the protocol. A side event yesterday explored the possible conditions and needs for establishing such a mechanism, and called for urgent action.

The 14th meeting of the Conference of the Parties to the Convention on Biological Diversity (CBD), and the third meeting of the Parties to the Nagoya Protocol [pdf] on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization is taking place from 13-29 November in Sharm El-Sheikh, Egypt.

Article 10 of the Nagoya Protocol asks that the protocol’s members consider the need for and modalities of a global multilateral benefit-sharing mechanism to address cases of transboundary situations, or for which it is not possible to grant or obtain prior informed consent.

Discussion are ongoing at the COP this week to find agreement on a draft decision on the global mechanism. An unofficial paper [pdf] (non-paper) was issued by the co-chairs of the contact group seeking to find agreement on a draft decision. The non-paper calls for a study on specific cases as described in Article 10, answering requests by some member states such as Japan, Switzerland, and the European Union countries (IPW, Biodiversity/Genetic Resources/Biotech, 20 November 2018).

According to the side event organisers, the International Law Research Program, Center for International Governance Innovation (CIGI) in Canada, Article 10 is generating increased attention. The article concerns issues such as transboundary resources, but also shared traditional knowledge, and digital sequence information, they said.

Manuel Ruiz Muller, director and principal researcher for the International Affairs and Biodiversity Program, Peruvian Society for Environmental Law, said the idea of a multilateral fund for genetic resources is not new and was already discussed in the late 1970s.

As the CBD was being negotiated in the late 1990s, a few scholars had proposed the idea of creating some kind of international system of benefit-sharing for the use of genetic resources. However the idea of a multilateral system did not catch on, he said, as countries focused on sovereignty.

A question arising from Article 10, he said, is what is meant by “transboundary.”

Article 10 is treated as an exception, as an exceptional situation but looking at the reality, genetic resources are extremely dispersed and disseminated across countries and jurisdictions. Some countries also share the same type of genetic resource, he said.

According to Ruiz, Article 10 does not apply to exceptional situations but is a substantive dimension of the protocol. An international regime should allow for the free flow of resources. It is not an attack on sovereignty, he said, and benefit-sharing would arise if the innovation based on genetic resources is protected by intellectual property and generates enough revenue. There is a need to reconsider what sovereignty means, he said.

Saving Biodiversity Cannot Wait

Pierre du Plessis, access and benefit-sharing advisor for the African Union, said the first question when discussing needs is the urgency with which sustainable funding is required to work on biodiversity conservation. “There is not a lot of time to save biodiversity,” he said.

He said a CBD High-Level Panel on the Global Assessment of Resources for Implementing the Strategic Plan for Biodiversity 2011-2020 found that an estimated US$150 billion a year would be needed to save biodiversity. According to du Plessis, four sectors (functional food, cosmetics, pharmaceuticals, and biotechnology) are expected to reach US$3 trillion a year by 2020. A five percent share of those earnings would yield US$150 billion, he said, adding, “we could do it if we really wanted to.”

Article 10 was a placeholder for further negotiations, he said, a ‘wiggle room’ to allow for both the adoption of the protocol, and a way forward. However, Article 10 is essential for the full implementation of the protocol, he said.

He noted that some countries do not have prior informed consent or a benefit-sharing system in place, which still allows for misappropriation of resources. He added, in his presentation, that the scope of the Nagoya Protocol needs to be widened to include resources such as digital sequence information, pathogens, marine genetic resources, and to close loopholes undermining the protocol.

There is a need to reaffirm the commons but with differentiated responsibilities, he said. He suggested establishing a global fund, and that grants be made directly to indigenous peoples and local communities to support local conservation and sustainable use.

Du Plessis also said the aim of the global mechanism could be to collect benefits which are not currently covered in bilateral mutually agreed terms. It would not undermine the bilateral system, and could be based on a blended approach, he said.

Digital Sequence Data, Whether In or Out, Needs Inclusion

According to Margo Bagley, senior fellow with CIGI’s International Law Research Program, there are two approaches to terminology. For some, terminology is not critical, in particular for some providers of digital sequence information (DSI). On the other hand, users have a stronger interest in terminology, for legal certainty and possibility of exclusion, she said.

Other possible terms include natural information, genetic information, genetic sequence data, digital sequence data and more, she said.

The danger of a particular terminology, she said, is the fact that technology continues to evolve and a specific terminology may not capture later developments, just as illustrated by the current question to know whether the Nagoya Protocol includes DSI or not.

Those opposed to the inclusion of DSI, mostly users, argue that the scope of the protocol is limited to tangible material, and that restricting access to GR and DSI would inhibit research. Including DSI would create uncertain monetary obligations, and legal uncertainty, such as about patent rights, they say.

According to Bagley’s presentation, if the definition of genetic material or genetic resources includes DSI, then prior informed consent, and mutually agreed terms on benefit-sharing will “dramatically complicate the legal use of DSI…”

If the definition of genetic material in the protocol does not include DSI, benefit-sharing could potentially be handled under the global multilateral benefit-sharing mechanism as described in Article 10.

A bilateral system, such as the one established by the Nagoya Protocol, is not ideal for dealing with DSI utilisation, Bagley said. This is because there is no robust sequence tracking system, there is a wide use of partial sequence combinations by researchers. They often use sequences from vast numbers of diverse organisms, and the same sequence may occur in multiple organisms from different geographic areas.

For example, she said in her presentation, “the synthetic biology production of steviol glocosides in yeast involves the use of genes from ~ 30 different possible species including a mushroom, grapevine, legume, and a fungal plant pathogen.”

She added that the value of a single sequence can be very difficult to quantify and transaction costs could be difficult to imagine if researchers working with thousands of sequences have to try negotiating benefit-sharing for each of them.

According to Bagley, the lack of monetary benefit-sharing contributes to the lack of conservation and sustainable use of biodiversity.

According to Chris Lyal of the United Kingdom Natural History Museum, applying prior informed consent and mutual agreed terms to DSI would imply a very large number of transactions.

He noted in his presentation that there was often very low incremental value of a single sequence to the research, and application of prior informed consent and mutually agreed terms on DSI would be detrimental to the use of DSI, and act directly against CBD implementation.

 

Image Credits: Catherine Saez