Convention On Biological Diversity Biennial Meeting Looks At How New Technologies Will Affect Its Objectives

Member countries of the UN Convention on Biological Diversity are meeting in Egypt for its biennial conference of the parties, and the conference of the parties of its protocol on access and benefit sharing, until the end of November. New technologies are high on the agenda of the meeting, such as synthetic biology and genetic sequence information of genetic resources, and how they will impact the convention’s objectives. Delegates are also expected to discuss a potential global multilateral benefit-sharing mechanism, and criteria for international specialised instruments of access and benefit-sharing which could substitute the protocol’s obligations in certain cases.

The 14th meeting of the Conference of the Parties to the Convention on Biological Diversity (CBD), the ninth meeting of the Parties to the Cartagena Protocol on Biosafety 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 are taking place from 13-29 November in Sharm El-Sheikh, Egypt. The next CBD COP is scheduled to take place in China in the fourth quarter of 2020.

The CBD Conference of the Parties (COP) agenda [pdf] also covers diverse topics such biodiversity and climate change, and the mainstreaming of biodiversity within and across sectors.

The topic of digital sequence information (DSI) on genetic resources has been difficult as member states are unsure on how to proceed with it. DSI in most cases can replace the biological material, in particular in the context of the Nagoya Protocol. Some fear that accessing DSI could threaten the access and benefit-sharing mechanism of the protocol since DSI is not included in the scope of the protocol at the moment.

According to the annotated agenda [pdf], digital sequence information “emerged as a cross-cutting issue” both under the CBD and the Nagoya Protocol. At previous COP, member states decided to consider this week and next any potential implications on the use of DSI on genetic resources for the three objectives of the CBD and the objective of the Nagoya Protocol.

The CBD objectives are: the conservation of biological diversity; the sustainable use of the components of biological diversity; and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, which is the objective of the Nagoya Protocol, itself a supplementary agreement to the CBD.

According to the International Institute for Sustainable Development (IISD), Malawi for the African Group, and Brazil for the Like-Minded Megadiverse Countries, said DSI falls within the scope of the CBD and its protocols. DSI should be tied to access and benefit-sharing obligations, they said.

Japan and Switzerland took the opposite view and said access and benefit-sharing obligations only refer to biological genetic resources, IISD said.

Following a decision [pdf] taken at the 2016 CBD COP, member states were invited to submit views and information on potential implications of the use of digital sequence information on genetic resources for the three objectives of the CBD. The CBD secretariat was then requested to prepare a compilation and synthesis of views and information submitted. Over 50 submissions were received by the CBD secretariat, 14 of which were CBD member states, and one non-member (United States).

Ethiopia for the African Group said the potential of DSI should be maximised while preventing inadvertent undermining of the purpose and objectives of the CBD. If measures are designed to ensure fair and equitable sharing of benefits, the Ethiopian comment said, there will be “little need for controlling access, and monitoring compliance will be simplified and facilitated.”

The EU in its submission said DSI can be very useful for the conservation and sustainable use of biological diversity. “In-field rapid sequencing is also becoming increasingly important for protecting public health and is commonly used in molecular epidemiology….” The EU stressed the importance of easy access to DSI for non-commercial research. The EU, the submission said, is concerned that “disproportionate restrictions on sequencing of the genetic resources and the publication of DSI could result in a slowing down of research progress on a global scale due to decreased accessibility of information.”

India said the issue deserves urgent consideration, while Switzerland said including DSI would extend the nature of what the term “genetic resource” refers to in the CBD and Nagoya Protocol. “The implications of such a redefinition on the existing legal framework remain difficult to assess because of the general lack of a common understanding of what constitutes” DSI, the Swiss contribution said.

The US, which is not member of the CBD, said any action hindering the access and use of DSI would hinder the objectives of the CBD, and would have negative implication for innovation.

According to the nongovernmental Third World Network contribution, “gene segments, genes and, indeed, entire organisms of high economic value (e.g. vaccine viruses) are now synthesized from DSI that may be exchanged electronically.” DSI, the group said, should be considered the equivalent of biological material, with users of DSI subject to the same benefit-sharing obligations as users of the biological materials that are the source of that DSI.

“The CBD should explore how repositories of DSI, such as microbial collections, botanical gardens, academic institutions, etc., and particularly large databases such as Genbank and the European Nucleotide Archive, can require users to agree to benefit sharing as a precondition of access to DSI,” they said.

According to Joseph Henry Vogel, professor of economics at the University of Puerto Rico- Río Piedras, the interventions made on the floor on 18 November reflected a North-South divide. “The North argued that ‘genetic resources’ are tangible material and that DSI was, therefore, inappropriate or out-of-scope. The South perceived any such interpretation as contrary to scientific fact and, ultimately, an existential threat to the Convention,” he told Intellectual Property Watch.

Global Multilateral Benefit-Sharing Mechanism

Article 10 of the Nagoya Protocol asks that parties “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.”

This morning, CBD members discussed the Global Multilateral Benefit-Sharing Mechanism, with the same divide, according to Vogel. However, he said, “the South did not connect the dots between the Sunday [discussion on DSI] and Monday [Global benefit-sharing mechanism] plenaries.” The economic rationale for the Global Multilateral Benefit-Sharing Mechanism “is precisely because genetic resources are intangible material. So, the economics of information remains studiously ignored despite its continuous appearance in the literature since the presentation of the CBD in 1992.”

During discussions this morning, Japan said it was premature to work on modalities when specific cases relating to Article 10 had yet to be identified. Switzerland agreed and engaged member states to further implement the Nagoya Protocol as it stands. South Korea also said there is limited information on specific cases and called for further studies on the topic.

The EU said there are currently no evident reasons to consider the need for such a global mechanism, but the implementation of the Nagoya Protocol should be supported. Any discussions on needs and modalities should not reopen the geographical scope of the protocol, the delegate added.

The Philippines suggested that all brackets in the draft decision [pdf – page 36] be removed, as did countries such as Egypt, Uganda, Malaysia, Sudan, and Niger. Egypt said genetic resources are currently being stolen and trafficked through different means, and added that many developing countries may not have the means to implement the Nagoya Protocol.

Malaysia said the mechanism should be set up and then applied to future cases. It is like a compliance committee, the delegate said, you start by establishing it, and do not wait for the first case and act then.

India said the country did not yet meet any cases where prior informed consent could not be obtained but in such situations where countries of origin cannot be identified, there is a need for a global mechanism to be established, and then modalities can be discussed.

Synthetic Biology

Another item on the agenda is synthetic biology. An Ad Hoc Technical Expert Group on Synthetic Biology delivered a report  [pdf] in December 2017, with a number of remarks. Among those the group said technological developments within the field of synthetic biology are “advancing at an accelerated rate, resulting in an increasing number of organisms” being engineered using various techniques.

The expert group also noted the need to develop and conduct assessment of the potential positive and negative impacts of synthetic biology on the three objectives of the CBD, including the relationship between indigenous peoples and local communities and “Mother Nature,” and the rights recognised by the United Nations Declaration on the Rights of Indigenous Peoples.

The group suggested a horizon scanning of synthetic biology under the CBD to keep track of progress in the adaptation of risk assessment and risk management of organisms developed through synthetic biology.

The draft decision [pdf] for COP 14 on this item suggests that horizon scanning, monitoring and assessing of developments in the field of synthetic biology, including those that result from genome editing, is needed for reviewing new information regarding the potential positive or negative impacts of synthetic biology.

The draft decision establishes a process and modalities for regular horizon scanning, monitoring and assessment of new developments in the field of synthetic biology. It also establishes a reporting mechanism; and extends the Ad Hoc Technical Expert Group on Synthetic Biology.

A non paper [pdf] was published yesterday by the contact group tasked with finding consensus language on the decision. The non paper proposes two alternatives on horizon scanning, monitoring and assessing. One of the alternative includes genome editing, the other not.

According to IISD, Mexico, Malaysia, Bolivia, Venezuela and Egypt were in favour of including genome editing, while Argentina, Brazil, Peru, Canada, Paraguay, Honduras, Panama, Ecuador, Colombia, and South Africa for the African Group were against it.

The Nagoya Protocol COP agenda [pdf] includes topics such as the financial mechanism and resources; measures to assist in capacity-building and capacity development: the access and benefit-sharing clearinghouse and information sharing; the specialised international access and benefit-sharing instruments; and the global multilateral benefit-sharing mechanism.

Specialised International Access and Benefit-Sharing Instruments

The COP is also expected to discuss criteria for specialised international access and benefit-sharing instruments. According to Article 4.4 of the Nagoya Protocol, “Where a specialized international access and benefit-sharing instrument applies that is consistent with, and does not run counter to the objectives of the Convention and this Protocol, this Protocol does not apply for the Party or Parties to the specialized instrument in respect of the specific genetic resource covered by and for the purpose of the specialized instrument.”

The World Health Organization has been considering its Pandemic Influenza Preparedness (PIP) Framework as a strong candidate to become a specialised international access and benefit-sharing instrument.

South Africa for the African Group, according to IISD, said the criteria for such a specialised instrument should recognise parties’ sovereign rights and be clear on issues including indigenous peoples and local communities, and prior informed consent. Mexico and Argentina said any international specialised instrument on access and benefit-sharing should be binding.

Potential criteria proposed by the COP draft decision include the fact that the instrument would be developed and agreed through an intergovernmental process. The instrument, according to the criteria, would apply to a specific set of genetic resources and/or traditional knowledge associated with genetic resources which would otherwise fall under the scope of the Nagoya Protocol.

The instrument should be consistent with and supportive of, and not run counter to the three objectives of the CBD, the criteria indicate.

 

Image Credits: CBD