Nagoya Protocol on Access to Genetic Resources

Various news was posted back in October on the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.  One was from Bioversity International “Bioversity welcomes Nagoya Protocol“.  A later update included a short interview with Michael Halewood, head of the Policy & Law Unit at Bioversity International. 

The interviewer asked about the implications of the Protocol on the International Treaty, in particular the Multilateral System (MLS) for access and benefit-sharing.  Michael Halewood explains that the fear was the protocol might ignore the Treaty, but that, in the end, language was used in the final agreement “adequately recognized the International Treaty”. 

I also asked Peter Munyi, Legal Counsel at ICIPE (and former consultant to CAS-IP) what his reactions to the Protocol were.  He had the following to say:

“With a Protocol on access and benefit sharing of genetic resources having been adopted in October in Nagoya, focus now shifts on ratification, acceptance and approval. The protocol opens for signature on 2nd February 2011. The speed at which countries will move to deposit their instruments of ratification and approval of the protocol will the indicative of whether the compromises made in Nagoya have gone down well in the capitals of the negotiators.

It will also be interesting to see how the adopted protocol will in future shape discussions and negotiations on genetic resources, traditional knowledge and access and benefit sharing that are taking place at the FAO, WIPO and WHO. Work has already been cut out for the inter-sessional intergovernmental committee in preparation for the first meeting of the parties to the protocol, which in the earliest will take place in 2012 in India during COP 11.

There still remain a number of unsettled issues, including what the internationally recognized certificate will look like, the global multi-lateral benefit-sharing mechanism. However, before we start thinking about these issues all over again, it would be useful if we could start by congratulating all the negotiators for tireless work that has finally borne fruit, not forgetting the able leadership provided by Fernando Cassas and Tim Hodges to the process.”

You can access the protocol text from the IP-watch.org upload.

For more opinions on the agreement see:

“Meeting review: TK at CBD COP 10” from TK bulletin,

“Mixed reactions on new access and benefit sharing treaty” from TWN 

“BIO’s take on the CBD Nagoya Protocol” from PatentlyBIOTech.

The long road to Access and Benefit Sharing

 The Ad-Hoc Open-Ended Working Group on Access and Benefit Sharing (ABS) of the Convention on Biological Diversity (CBD) resumed at its ninth meeting once again in Montreal between 10 and 16 July. At the previous meeting in November (see CAS-IP blog of 25 November 2009), many issues were left unresolved, in particular the mechanisms that states should adopt to create a protocol which could be incorporated into national laws.

At this July meeting states’ delegates discussed and intended to finalise the protocol drafted by the Co-Chairs, Fernando Casas of Colombia and Timothy Hodges of Canada.  However, in Montreal most of the delegates objected, saying that the protocol had not been negotiated by all relevant parties and that some key issues still needed to be properly discussed.

It is surely true that everyone worked day and night and, according to many attendees, with a very positive attitude; however, many hurdles seemed to be barring the road to success. The biggest hurdles were the use and commercialisation of products derived from genetic resources, access to pathogens in case of emergency situations (like in the case of the Pandemic Influenza – see CAS-IP blog of 9 June 2009), and the relationship between the CBD and the Protocol and their enactment into member states through national laws. In relation to this last point, the EU for example, argued that member states can only claim and exercise their right to benefit-sharing if they have created internal mechanisms that enact the principles of the Convention and of the Protocol which are only on an international level.  

It seems that they are still many unresolved questions and issues.  Is it realistic to believe that the text as it has been left last Friday can be approved by consensus at the next and tenth meeting, which will be held in Nagoya, Japan, between 18 and 29 October 2010.  Many attendees for example felt that the protocol drafted by the Co-Chairs was much simpler than the recent Montreal document and that too much is at stake for those developing countries that are too dependent on exotic genetic resources for their economic development.

Everyone must be aware of the complexities that need to be resolved and it has been decided that before meeting in Japan next October there should be another round of discussions in September, probably in Indonesia.

I am very interested in following these discussions and seeing whether members will be able to reach a real understanding of everyone’s interests and concerns, as well as a genuine trust and confidence in each other.

The Summary & Analysis of the meeting can be found here: http://www.iisd.ca/biodiv/rabs9/.  See also the IP Watch post “Consensus on binding biodiversity agreement elusive; to reconvene in September”.

Post written by Francesca Re             Manning of CAS-IP

The landscape for access and benefit sharing of genetic resources

Last month the Secretariat of the Convention on Biological Diversity posted a notification regarding the communication of a proposed Protocol pursuant to Article 28 paragraph 3 of the Convention on Biological Diversity.  The notification is available on the Secretariat’s web site at: http://cdn.www.cbd.int/doc/notifications/2010/ntf-2010-071-abs-en.pdf

Now, what does this all mean? I asked Peter Munyi, a lawyer and consultant to CAS-IP.  He told me:

“…the expectation is that the protocol will, if adopted,  provide an internationally recognized landscape for access and benefit sharing of genetic resources. While  this  protocol is also seen as  having potential to spur technology transfer from the north to the south, and to stem biopriracy,  the devil is in the detail. The proposed text on scope  (article 3) is wide and non-exclusive. It’s therefore proposed to have all genetic resources  falling within the ambit of the protocol. This includes plant genetic resources that are the subject of the ITPGRFA, as well as others  such as animal GRs, forest GRs and microbials, that have been the subject of discussions with the FAO Commission on Genetic Resources for Food and Agriculture.”

So, until now discussions are continuing about how the sectorial approach will fit in with the proposed protocol (in particular for our interest area, PGRFA).  I was pointed in the direction of a pertinent paper entitled “International Agreements and Processes Affecting an International Regime on Access and Benefit Sharing under the Convention on Biological Diversity“, (Thanks Isabel).  The document is intended as:

“… a contribution to the ongoing negotiations of an international regime on access and benefit sharing (ABS) under the Convention on Biological Diversity (CBD). It aims at clarifying the main interfaces with other international agreements and processes relevant for ABS, in view of the challenges of ensuring consistency with these established frameworks. Furthermore, it provides information of importance for identifying the scope of an international ABS regime. And finally, it seeks to contribute to the discussion of the usefulness and possible design of a sectoral approach to ABS.”

See specifically the first section of the report “Interface with the International Treaty on Plant Genetic Resources for Food and Agriculture” for implications a new international regime for access and benefit sharing could have on materials in the multi-lateral system.

Should be some further clarity after the next session in the Autumn.

The Convention on Biological Diversity (CBD); comment on meetings that concluded this month

A few days ago the meeting on the Convention on Biological Diversity (CBD) in Montreal was concluded.  First, the sixth meeting of the Ad-hoc Open-ended Working Group on Article 8(j) and Related Provisions (Article 8(j) WG 6) of the CBD was held (from 2 to 6 November), and then the eighth meeting on Access Sharing (9-15 November).  You can see a summary of the highlights along with related documents here http://www.iisd.ca/biodiv/wg8j-6/ and here http://www.iisd.ca/biodiv/abs8/

Dr Claudio Chiarolla, expert, UNEP ABS Knowledge Hub of the International Institute for Sustainable Development (IISD), made the following comments:

“the discussions on traditional knowledge (Article 8j) developed reasonably well. It seemed however that too much caution was taken in relation to the mechanisms to incorporate the text of new submissions into the draft of the international ABS regime; the result was that ‘real’ negotiations on this document did not even start.”

I agree that this is a shame as a Protocol, once incorporated into national laws, could change radically the way that research and innovation are carried out, as well as turning a very convoluted document like the CBD into something more concrete and manageable. On a positive conclusive note though Dr Chiarolla adds:

“it was encouraging however to see how many countries were discussing openly and frankly the issue of Prior Informed Consent (PIC) of indigenous and local communities”.

Is WIPO’s alleged push towards traditional knowledge really working?

Post written by Francesca Re Manning, consultant to CAS-IP

Sarawak Biodiversity Centre, TK and IP Management: a trip report

photo by G.H.Teh

 The weekend before last was special.  The Bioversity-APO office, where I’m hosted, organised a trip for their staff and family members to Kuching.  This beautiful city is located in Sarawak, the biggest state in Malaysia which probably has the richest biodiversity in the country.  When we arrived on Friday morning, we were transported to the Sarawak Biodiversity Centre (SBC) (http://www.sbc.org.my/) for a visit and tour of their facility. SBC has been involved in various projects on traditional knowledge (TK) documentation with indigenous communities for about 10 years now (click here for more information – publication sharefair2009 PN).  During this time, they have managed to collect and document TK and information of various medicinal plants, and to subsequently conduct research to “discover chemicals and enzymes…that would be useful over a broad range of applications as industrial related products such as essential oils, bio-pesticides and commercial dyes” (see: SBC’s Bioprospecting Programme -).

photo by Chan Yunn Horng

As part of the visit, I presented a talk on IP management (see – SBC Presentation by GHTeh), by sharing experiences in the CGIAR system on various issues. 

 

 

From conversations with the Chief Executive Officer of SBC, Dr Rita Manurung, I have been apprised of the following IP challenges faced by the institution:

a)       Formation of an IP policy for SBC and the state of Sarawak;

b)       Development of in-house IP capacity to assist with IP management and implementation;

c)       Providing access to genetic resources and associated TK in a way that respects and takes into account the contribution of indigenous communities in Sarawak; and

d)       Developing benefit-sharing mechanisms for use of genetic resources and associated TK by third parties.

 Although my visit was very brief, the impression I got about SBC was very encouraging.  They have been pioneers in Malaysia for TK documentation and it is highly likely that this state institution is well on its way to strategise on taking their TK inventory and discoveries to the next level.  “We cannot stop the progress of science and technology”, says Dr Manurung.  To this, I can only say that IP must be an enabling tool for us to share with the world the wonders of biodiversity and the many promises that it can potentially bring for mankind.

Post written by Guat Hong Teh, legal specialist for CAS-IP.

CORRECTION & addition to the post “in times of swine flu”

https://casipblog.wordpress.com/2009/06/09/in-times-of-swine-flu-protecting-the-rights-of-developing-countries-over-their-genetic-resources/
After we posted the item about swine flu and protecting the rights of developing countries’ genetic resources we were contacted by the writer of the original article at IP Watch.  Kaitlin Mara emailed:

“I was concerned there might have been some misunderstanding over what I wrote, so I just wanted to clarify a couple of points.

1) the SMTA in the agreement on pandemic influenza is not the SMTA of the International Treaty; it was written especially for the purposes of virus transfer (and thus there’s no reason for the material being transferred to involve food or feed). . In drafting the SMTA for flu, delegates at WHO used the model of the SMTA on plant genetic resources as a guide (as well as 8 others, but they paid particular attention to the work of the International Treaty).

2) whether the language of the SMTA is too broad or not is a matter of debate. This is certainly the position of industry, of the US, and of other industrialised nations. This is not at all the position of many, possibly most, developing nations — Brazil and Indonesia have been particularly strong on this point — who believe a broad SMTA is  necessary to ensure their access to vaccines and other benefits. I just wanted to be clear that “too broad” is not a consensus opinion.

Also, whether or not to actually use an SMTA is not, from my understanding, still an issue. Getting rid of it was something the US proposed informally, but it didn’t go very far. The issue now is really scope.”

I would like to thank Kaitlin Mara for her clarifying comments.  In fact it is my understanding that the use of the ITPGRFA’s SMTA for non food purposes is highly debated by many involved with the International Treaty; there are express wordings excluding it for such uses in the language of the IT and the IT’s SMTA.  Therefore, apologies for any confusion we may have caused with the original post.

In times of swine flu; protecting the rights of developing countries over genetic resources

http://www.ip-watch.org/weblog/2009/05/18/who-members-fail-to-finish-pandemic-flu-preparations/

How do we ensure that genetic material for vaccines and viruses, which could help fight the current threat of Mexican swine flu, are transferred and shared effectively?  The material used to develop a vaccine could be transferred by using a Standard Material Transfer Agreement (“SMTA”) of the International Treaty for Plant Genetic Resources for Food and Agriculture (the “International Treaty”) – despite the material being used neither for food nor for animal feed.
However, many developed nations, including the United States (which incidentally is not party to the International Treaty) have objected to the use of the SMTA claiming that it’s broad provisions lead to unacceptable delays during times when a serious health threat is posed.  This has meant that a considerable amount of material has been distributed without the use of an SMTA. 

Developing countries fear their natural resources may be used to create a vaccine, but then the benefits will not be shared with them.  Or, an additional risk could be that materials given to the World Health Organization (“WHO”) with the intent to prevent a pandemic could be transferred to private companies for the manufacture of vaccines and then perhaps used for different purposes. 

Despite objections being made by some countries regarding the use of the SMTA in the sharing of viruses, the WHO Secretariat is already exploring this possibility, and is considering whether there are any lessons to learn from the use of an SMTA in access and sharing of benefits within the multilateral system of plant genetic resources for food and agriculture created by the International Treaty.

The question is: despite these specific reasons for not wanting to use the SMTA, is it not true that something should anyway be done to the language of the document as it is too broad?

The original blog post was written by Francesca Re Manning with contributions from Peter Munyi.  Both Francesca and Peter are consultants to CAS-IP.

Observations ahead of the 7th meeting of the ad hoc open-ended working group on access and benefit-sharing

 http://www.cbd.int/doc/?meeting=ABSWG-07

The latest CBD meeting on Access & Benefit Sharing is due to start this week. The lead link is to the official site with the agenda and other participant materials. Peter Munyi, Chief Legal Officer at ICIPE  and consultant to CAS-IP, is in Paris for the meeting and made the following reflections on the process so far:

“Right now, it’s not clear the nature of the instrument that will be adopted … however, there’s a lot of pressure and goodwill to see the negotiations succeed. … The larger question is whether the CG Centre’s current engagement on these issues, through a ‘centralist’ approach is sufficient. The current discussions are dealing with non-PGRFA, but also with PGRFA utilized not in accordance with the ITPGRFA. It’s not clear whether a sectoral approach will be adopted in the end, and I believe it’s necessary for centres to be more active not only in the current ABS negotiations but also in the work of the FAO Commission on Genetic Resources.”