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.
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.
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.