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.

Update on the CBD

IPWatch has reported on the meeting that industry representatives had last week in Geneva to discuss the legally binding regime that the Convention on Biological Diversity (CBD) intends to create for the access and benefit sharing (“ABS”) of national genetic resources and traditional knowledge.  Presumably this discussion was sparked by the Montreal meeting of 2-15 November (see our blog posted on 25 November).  The industry claimed that:

“A legally-binding international system on ABS may harm business interests and also fail to reach its objectives of protecting and preserving biodiversity. “

Further, Esther Schmitt, unit head of natural products at Swiss biotechnology company Novartis added:

“Successful collaboration between local communities and biotechnology companies requires legal certainty, exclusivity and  transparency and prior informed consent.”

I agree with Ms. Schmitt that the international community needs legal certainty, and IPWatch quotes Alan Oxley, chairman of the Asia-Pacific Economic Cooperation (APEC) Centre at the Royal Melbourne Institute of Technology University in Australia:

“Part of the difficulty in negotiation of the regime is that there is “no common agreement on what the problem is…There is “no legally-instructive definition of the key terms,” nor an agreement on the “means by which commitments are to be delivered”.”

And unless economic activities are encouraged, developing countries will not have real benefits to enjoy.

However, a question comes to mind: “whose business interests and whose biodiversity”?  It seems clear that the industry does not want to be legally bound to national rules as to ways of accessing and using the genetic resources of developing countries.  How many companies have really contributed towards the Secretary Fund of the ITPGRFA?  And how many companies complain about the requirement to compensate the international community for depriving it of its genetic resources (see the payment mechanisms of the SMTA, art. 6 and 7)?

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

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

“Seed policies and the right to food; enhancing agrobiodiversity and encouraging innovation.” Report to the UN General Assembly

“Seed policies and the right to food”; The Report of the Special Rapporteur on the right to food from the UN website*

(*I was having problems with this link today; so if you too have problems  connecting to the UN docs library link then please try this alternative link from the “Voices from Africa” website — Kay)

The report is written by Olivier De Schutter who is currently the Special Rapporteur on the right to food.  Click here for the annoucement that it will be presented at the UN General Assembly on October 21st.

The Summary concludes with:

“The…report explores how States could implement seed policies that contribute to the full realization of human rights. It identifies how research and development could best serve the poorest farmers in developing countries, and how commercial seed systems could be regulated to serve the right to food and ensure the right of all to enjoy the benefits of scientific progress. Finally, it examines how farmers’ seed systems could best be supported, in order to serve the interest of all in the preservation of agrobiodiversity.”

The report looks, in some detail, at IP issues and at the role of TRIPS, UPOV and CBD.  Section headings include:

• The developing regime of IP rights and biodiversity protection
• The expansion of IP rights
• The protection of biodiversity and the risk of misappropriation of genetic resources
• Crop genetic diversity as a global public good
• Redirecting innovation towards the realization of the right to food
• IP rights in the commercial seed systems and the right to food
• Farmers’ seed systems and the right to food

In the conclusion, the report calls for continued innovation on all fronts and urges a non-linear approach:

“Our paradigm of agricultural development must…be redefined”.

Donors and both the CGIAR and FAO are called upon to assist and support such innovation.

This report underlines the complexity of the work we are engaged in pursuing, and focuses attention on IP issues.

Post written by Peter Bloch, consultant to CAS-IP

UPDATE from Paris. 7th meeting of the ad hoc open-ended working group on access and benefit-sharing

https://casipblog.wordpress.com/2009/03/31/observations-ahead-of-the-7th-meeting-of-the-ad-hoc-open-ended-working-group-on-access-and-benefit-sharing/

We blogged some pre-meeting observations earlier this week (see lead link). Today Peter Munyi, Chief Legal Officer at ICIPE and consultant to CAS-IP sent the following update, and his observations:

“The negotiations towards an international regime on access and benefit sharing resumed officially on 2nd April at UNESCO, Paris.  The roadmap towards the regime is clear as outlined in CBD COP 9 in 2008.  The subject matter for negotiations during the next 7 days is the objective and scope of the international regime, as well as the main elements (benefit sharing, access and compliance). 

With regard to objective and scope of the international regime it is clear that pursuant to the programme of work laid out by CBD COP Decision IX/12, at the end of the next 7 days, the negotiators must come up with at least a finalized draft operative text.  If this does not happen, the earliest that negotiations on these two issues will be revisited will be in March 2010 during Working Group 9 or October 2010 in COP 10.  For compliance, the expectation is that parties will at least develop an advanced draft operative text that can be subjected to further negotiations in Working Group 8 in November 2009. 

There are a number of sticking issues in these negotiations.  The status of pre-CBD collections is one and whether they should be included in the scope of the regime.  Intellectual properties particularly in the context of benefit sharing, and also as an important check point in tracking material as well as disclosure of origin is another.  The intellectual property issue has trade implications, and how an understanding is reached towards the different viewpoints held by regions should be something to pay attention to as it may have implications on the dynamics of managing intellectual property in the future.  There are other sticking issues relating to the definition and understanding of derivatives; whether to include human genetic resources; whether to include pathogens, for example those subject to discussions at the World Health Organization relating to influenza flu viruses and, the relationship an international regime will have with other treaties of relevance.

For the CG centres, the debate and negotiations are important.  Genetic resources are the subject matter of their work.  How they will be accessed and shared in future is in the hands of the negotiators who obviously, do not include the CG Centres.  Since the negotiations must come to an end in COP 10 in October 2010, in less than 18 months therefore, there will be multilateral instrument that will regulate and facilitate access to genetic resources and benefit sharing.”

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.”