Stakeholders Restless About Biodiversity Benefit Sharing Protocol

NAGOYA, JAPAN – Negotiations on a legal international instrument to prevent biopiracy and ensure that resource holders are compensated on Thursday continued to demand the attention of delegates in the closed-door discussions here. Meanwhile, civil society argued that the Convention on Biological Diversity is at a critical point while a research institute provided a model agreement for providers and users of genetic resources.

The draft protocol being discussed from 18-22 October in Nagoya by the Informal Consultative Group, designated to continue working on the draft document, is meant to be a legally binding protocol on access and benefit sharing to the 1992 UN CBD. Several issues remain hotly discussed such as the inclusion or not of pathogenic genetic material in the protocol.

During a side event on Wednesday, organised by the Third World Network (TWN), Hartmut Meyer, consultant for the Church Development Service, said that the debate about whether or not to include pathogens in the ABS protocol touches on the debate about patents and access to medicine. He cited a case where Indonesia shared its pathogenic genetic resource on a flu virus with the World Health Organization for research on a vaccine but the resource was used by private companies to produce a vaccine, which was patented by industry. The multilateral system is not able to prevent such things from happening, he said.

Chee Yoke Ling, director of programmes for the TWN, said that developing country delegations are small and it is very difficult for them to follow all negotiations.

The negotiations at COP are held in plenary sessions, but also in two working groups which share the work of discussing the agenda items, and there are parallel discussions on ABS.

The convention is at a very critical stage, she said. The 2010 target to reduce the loss of [corrected] biodiversity has failed. The strategic plan for the next 10 years has to be agreed on but the second and third objectives of the convention were the ones that bore the most disappointment: the sustainable use of the components of biological diversity, and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources.

In the convention, Article 15 (7) describes the obligations of the parties concerning the sharing of the benefits. It states that parties “shall take legislation, administrative or policy measures … 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 utilization of genetic resource…” This language is not strong enough, said Yoke Ling and “the fight here is to tighten the language to ensure there is ABS,” she said.

Protocol on Right to Share and to Access

Parties should have the right to regulate access and “the right to say no,” she added. Developed countries are reluctant to have a binding instrument but they want a right to access genetic material. Developing countries want the same level of rights for access as for benefit sharing, she said.

The biggest fight is over the scope of the protocol as some countries are trying to exclude pathogens and derivatives from genetic resources, but derivatives are the area which generate the most benefits, she said. Some countries are saying that pathogens are the business of the WHO, agriculture is the business of the UN Food and Agriculture Organization, and intellectual property rights the domain of the World Intellectual Property Organization.

On the temporal scope, according to Yoke Ling, developing countries would like the protocol to go back to 1993, when the CBD came into force. However, developed countries disagree with a retroactive application of the protocol to cover genetic resources collected since 1993.

US A Non Party but Impacting Debate

For Christine von Weizsaecher, president of Ecoropa, a European network following CBD negotiations, one big party is a non-party to the CBD: the United States. And that creates a problem, as one strong economic player is not a party to the convention. That impacts the political attitude of developed countries, she said, in particular, if they feel that the United States has a comparative market advantage.

Furthermore, in many countries, the positions of the ministries responsible for environment, trade, agriculture, and intellectual property are so far apart that parties do not have a strong national position on the convention, she said.

Another factor that complicates the process is that nowadays companies rely a lot on outsourcing. Access and biopiracy are outsourced, she said, as is the collection with small genomics companies doing the collecting. This is where checkpoints to ensure compliance are of utter importance.

ABS is at the core of the Nagoya negotiations, she said, as the CBD needs the three legs of the convention to stand. The “ABS part has been withheld by industrialised countries” for too long, she said, adding that some countries that pride themselves on being innovators seem reluctant to be innovative in the legal sector.

IP rights are no longer about rewarding the inventors, Yoke Ling said. They are about monopoly, and the CBD is a different way at looking at property.

Non-Commercial Research Under ABS

In a separate side event yesterday, Susette Biber-Klemm, senior researcher at the Swiss national centre of competence in research, said there is a negative perception of the ABS obligation in scientific community for non-commercial research, after a survey was conducted during an ABS programme run by the Swiss Academy of Sciences and it found that scientists thought the ABS procedure is burdensome and pointless.

The programme spanned over seven years, from 2003 to 2010, and aimed at raising awareness in academic circles about access to genetic resources and the fair and equitable sharing of benefits. It was also meant to provide the scientific community guidance for “those going in the field to collect material, she said.”

The Swiss ABS programme, based on the CBD recommendations, developed an Agreement on Access and Benefit Sharing for Non-Commercial Research which was launched yesterday along with the report on the programme.

The most important lessons, said Biber-Klemm, were brought from the cooperation with colleagues from providing countries, which allowed the identification of potential areas of conflict. Providers are often concerned about the potential “Trojan horse” character of non-commercial research, she said, and integrating providers and users of the resources in the discussion is essential. The manual was prepared for the Swiss community but can be used by the international community, said Sylvie Martinez, science officer at the University of Basel, and co-author of the study.

The sample agreement seeks to ease negotiations and contribute to cooperative solutions, said Biber-Klemm. Different situations in research, such as taxonomy and microbiology, involving traditional knowledge or not, raise different needs for providers, she said.

The sample agreement contains model clauses to tailor it to the needs of users and providers. The level of complexity increases the need for control, Martinez said, and all published research could eventually be used for commercial purposes as unexpected research results might trigger thoughts of commercial use. There is also sometimes no clear line between non-commercial and commercial research, she said.

Tom Nixon of the International Chamber of Commerce, commenting on the presentation, said that commercialisation is at the end of a long process. He called for consultations of a wide range of stakeholders and said that some stakeholders could be affected by the current negotiations on an ABS protocol.