How many roads? Negotiating an international regime on access and benefit sharing

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How many roads? Negotiating an international
regime on access and benefit sharing

• SOAS LEDC / FIELD Lecture Series
• London
• 31 January 2008
• Linda Siegele
• FIELD

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Topics to be covered

• Access and benefit sharing (ABS) in the
  Convention on Biological Diversity (CBD)
• Stakeholders and their views
• Why an international regime?
• Where we are now
• Where this might end up
• Overarching international legal questions

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ABS in the CBD (1994)

• Preamble
• Aware that conservation and sustainable use of
  biological diversity is of critical importance
  for meeting the food, health and other needs of
  the growing world population, for which purpose
  access to and sharing of both genetic resources
  and technologies are essential (emphasis added)
• Article 1 Objectives
• The objectives of this Conventionare the
  conservation of biological diversity, the
  sustainable use of its components and the fair
  and equitable sharing of the benefits arising out
  of the utilization of genetic resources,
  including by appropriate access to genetic
  resources(emphasis added)
• Article 2 Use of Terms
• Country of origin of genetic resources means
  the country which possesses those genetic
  resources in in-situ conditions
• Country providing genetic resources means the
  country supplying genetic resources collected
  from in-situ sources, including populations of
  both wild and domesticated species, or taken from
  ex-situ sources, which may or may not have
  originated in that country.
• Genetic resources means genetic material of
  actual or potential value.

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ABS in the CBD (1994)

• Article 15 Access to Genetic Resources
• Sovereign rights of States over their natural
  resources (Art. 15.1 reiterates Art. 3)
• Facilitate access to genetic resources (Art.
  15.2)
• Countries of origin or providers (Art. 15.3)
• Access on mutually agreed terms (MAT) (Art. 15.4)
• Access subject to prior informed consent (PIC) of
  provider (Art. 15.5)
• Research in provider country (Art. 15.6)
• Fair and equitable sharing of benefits on
  mutually agreed terms (MAT) (Art. 15.7)

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ABS in the CBD (1994)

• Related articles
• Article 8(j)
• Respect, preserve and maintain knowledge,
  innovations and practices of indigenous and local
  communities
• Article 10(c)
• Protect and encourage customary use of biological
  resources in accordance with traditional cultural
  practices
• Article 16 Access to and transfer of technology
• Article 19 Handling of biotechnology and
  distribution of its benefits
• Article 20 Financial resources
• Article 21 Financial mechanism

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The stakeholders and where they stand

• CBD Parties (and non-Parties)
• Traditional users (industrialised North)
• European Community (EU)
• Japan, US, Canada, Australia New Zealand
  (JUSCANZ)
• Norway Switzerland
• Traditional providers (megadiverse South)
• Group of Like-minded and mega-diverse countries
  (LMMC)
• Grupo Latino Americano y del Caribe (GRULAC)
• African Group
• Intergovernmental organisations
• FAO
• WIPO
• UNCTAD
• Indigenous and local communities
• Civil society
• Environmental NGOs
• Industry groups

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Why an international regime?

• Conditions leading to the call (failure of the
  grand bargain)
• Poorly regulated access
• Lack of fair equitable benefit sharing
• Misappropriation of genetic resources
• What was done about them
• WSSD Joint Plan of Implementation (2002)
• UNGA Resolution 57/260 (2002)
• CBD Multi-year Programme of Work (2003)
• CBD COP 7 (2004)

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Creation of the ABS Working Group

• 2000 Original mandate (Decision V/26)
• WGABS 1 (Bonn Guidelines, 2001)
• COP 6 (Bonn Guidelines agreed, 2002)
• WGABS 2 (process, nature, scope, elements
  modalities, 2003)
• 2004 New mandate (Decision VII/19)

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WGABS the new mandate

• Terms of Reference (Decision VII/19 D Annex)
• Mandate to elaborate and negotiate an
  international regime on access to genetic
  resources and benefit sharing with the aim of
  adopting an instrument/instruments to effectively
  implement the provisions in Article 15 and
  Article 8(j) of the Convention and the three
  objectives of the Convention.

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WGABS the new mandate

• Terms of Reference (Decision VII/19 D Annex)
• Process elaborate and negotiate the nature,
  scope and elements of an international regime on
  ABS within the framework of the CBD
• Nature The international regime could be
  composed of one or more instruments within a set
  of principles, norms, rules and decision-making
  procedures, legally-binding and/or non-binding
• Scope
• (i) Access to genetic resources and promotion
  and safeguarding of fair and equitable sharing of
  the benefits arising out of the utilization of
  genetic resources in accordance with relevant
  provisions of the Convention on Biological
  Diversity
• (ii) Traditional knowledge, innovations and
  practices in accordance with Article 8(j).
• Elements 23 elements listed (with 23 related
  agreements and fora)

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WGABS the new mandate

• Summary of the mandate
• The CBDs parties are to negotiate and
  elaborate an international regime.
• The aim of the endeavour is to implement Articles
  1, 8(j) and 15 of the CBD.
• There is no decision on whether any new elements
  of the international regime should be binding or
  non-binding.
• A gap analysis must be undertaken before a
  decision can be made on the nature and content of
  the international regime.
• The process for this is set out in the decision.
• The interests of indigenous peoples in this
  endeavour are of great importance.
• Both access and benefit sharing are part of the
  scope of this exercise.
• All countries are to be considered as both users
  and providers.

Hodges Daniel (2005)
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The new mandate whats happened since then?

• WGABS 3 (Bangkok, February 2005)
• Proliferation of elements
• Matrix for gap analysis
• WGABS 4 (Granada, February 2006)
• The Granada Text (Annex 4)
• Participation of indigenous peoples
• COP 8 (Curitiba, March 2006)
• Decision on process only
• WGABS 5 (Montreal, October 2007)
• Chairs text on areas of convergence
• WGABS 6 (Geneva, January 2008)
• Mapping a way forward (nature, scope, objectives
  and major components)

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WGABS 6 - Summary

• Areas of convergence
• Supporting national legislation
• Standard contracts and model clauses
• Building negotiating, monitoring and enforcement
  capacity
• Areas of divergence
• Nature binding / non-binding
• Scope genetic resources / derivatives /
  traditional knowledge
• Objective access AND benefit sharing?

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The International Regime where is it going?

• COP 9 (Bonn, May 2008)
• Decision on process
• Negotiation on substantive issues based on work
  from WGABS 6
• Inter-sessional work
• A minimum of two WGABS meetings
• Informal consultations
• COP 10 (Nagoya, 2010)
• Decision on the international regime

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Related international processes

• World Intellectual Property Organisation (WIPO)
• Traditional knowledge
• International patenting rules
• World Trade Organisation
• The Agreement on Trade-related Aspects of
  Intellectual Property Rights (TRIPS) patenting
  genetic material and disclosure of origin
• International Treaty on Plant Genetic Resources
  for Food and Agriculture (the Treaty)
• Access to ex-situ collections for certain food
  plants
• Intl Union for the Protection of Plant Varieties
  (UPOV)
• Controlling the distribution of seed varieties

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Overarching international legal questions

• International vs national level
• Binding (hard law) vs non-binding (soft law)
• Compliance
• Monitoring and enforcement
• Developing mutually agreed terms
• Model clauses and contracts
• Private vs public international law
• Sharing of benefits
• Sovereign rights
• Good governance
• Non-State rights, including rights over natural
  resource use
• Declaration on the Rights of Indigenous Peoples
  (Art. 31)