~by Nathan Thanki

Although not classically what many would immediately think of as being a priority for a Convention on Biological Diversity (CBD), which one might imagine is solely concerned with conservation of cuddly polar bear cubs and lush rainforests,  access and benefit sharing (ABS) for genetic resources and their derivatives have their own Nagoya Protocol (NP). So it is worth saying a few explanatory words for any readers of [Earth] who are more familiar with CBD’s more dysfunctional, glamorous sister climate change convention than they are with ABS.

*Disclaimer: before going any further, I should say that there are many more in depth, user-friendly, objective guides to and analyses of ABS issues—such as those provided by the CBD secretariat (cbd.int), Earth Negotiation Bulletins (iisd.ca/process/biodiv_wildlife.htm#cbd), Third World Network (twnside.org.sg/access.htm), CEBLAW (ceblaw.um.edu.my/aboutus.php), and as always Wikipedia—which you should read if you are interested.  But I’ll give my own very shallow, unclear, and biased account.

To begin; what is being accessed? What constitutes genetic resources (GRs)? GRs include living organisms—plants, animals, and microscopic life—which have genetic material that may be useful to us: commercially in industry, pharmaceuticals, agriculture, cosmetics; and non-commercially in research, conservation, gene/seed banks and botanical gardens. However, the FAO already have an International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), so the ABS regime deals mostly with pharmaceuticals. Crucially derivatives are also mentioned in the language of the NP and have long been controversial in the ABS negotiations. I’m not of a scientific mind so to put it quite simply and by the book (the Oxford Dictionary of Biochemistry) derivatives are “compounds that at least theoretically can be formed from the precursor compound” (the original GR). So basically a user group could take a GR back to the lab, run it through some expensive machines for analysis, reproduce exactly what they want and then develop some product that can be seen as being new and justifiably patentable. Profits will be made, lots and lots of profits, and the benefits should be shared.

As to where and how such GRs are accessed, that can be either in-situ—that is to say in the field and overwhelmingly in the resource rich developing world—or ex-situ, i.e. in our collections such as Kew Gardens, almost exclusively located in the developed world. This differentiation becomes important when we consider benefits: should Kew Garden reap the benefits for a GR that it sourced from the Amazon? In this way, there are so many intricacies to ABS: it is never black and white. There can be cases of one user group and one provider group, but more often the case involves many user groups and many provider groups. Also, sometimes a GR that has been accessed for non-commercial uses ends up being used for commercial purposes.

There are agreed terms for how to do ABS. Access and use of and benefits from GRs have to be based on mutually agreed terms (MAT) between the users and providers. Prior informed consent (PIC) is the permission given by the competent national authority of a provider country to a user. It must be in accordance with the national legal/institutional framework. The complication around PIC is not immediately obvious, arising from varying understandings of the obscure language of the NP, but it goes as follows. If a provider country does not have said legal/institutional frameworks for ABS in place (and due to a lack of capacity they don’t: if the environment ministry is staffed by a handful of people it seems unlikely) then it cannot meet the commitment of the Protocol. PIC is particularly important for indigenous and local communities (ILCs) who are the owners of traditional knowledge (TK) about the many properties of GRs. However, their PIC is left to the discretion of the Party (the government of the provider country), and given that Kenya, Nigeria, and Burundi abstained and the USA (who is not a party to CBD anyway), Canada, Australia, and New Zealand voted against adopting the UN Declaration on the Rights of Indigenous People, we can see that this discretion might do very little for ILCs. If PIC for ILCs is referred to national law, then countries where that law doesn’t respect ILCs can do as they like legally. On top of the human considerations, there are also environment impacts. The CBD is quite clear: access of GRs should be done in a way that does not damage the environment, i.e. it must be sustainable use rather than plunder. Speaking of pillage and plunder, the term used for the exploitation of traditional knowledge of ILCs for commercial gain without fair and equitable benefit sharing is biopiracy. Developing countries want to use their own resources (common heritage of mankind goes out the window when you’re being exploited) to develop—so they have the sovereign right to deny access to a user. However, given that these resources have been commodified and so can be sold, there really isn’t much choice—you have to allow some kind of access. What the developed countries have fought tooth and nail for is the caveat that Parties must “avoid discriminatory rules in processing access permits.” It’s somewhat like telling a person that they must not discriminate who they have sex with, which is of course rape.

While there are such severe measures regarding what developing countries must to facilitate the access part of ABS, there is much less done to ensure the fair and equitable benefits sharing part. Benefits do not just take the form of a lump sum cheque: they can be anything from research funding and royalty payments to sharing of research and “social recognition” (in the NP there are almost twice as many examples of non-monetary benefits than there are of monetary ones). The NP again puts it very much in the hands of the user Party, “to take legislative, administrative, or policy measures, as appropriate” to ensure benefits are shared. No suggestions for what this may look like are given. This lack of a compliance mechanism has been one of the biggest criticisms of the ABS regime. The NP has paved the way for an ABS clearing house, similar to that of the Biosafety regime, which is supposed to facilitate compliance. However, what this clearing house will look like is not clear, other than that it should include relevant information regarding policy measures on ABS, national focal points, permits showing PIC and MAT, and codes of conduct. We will have to wait until the second Intergovernmental Committee on the Nagoya Protocol (ICNP2) next year to see how the details are fleshed out. Of particular concern is that ILCs are squeezed out of the picture, with each Party deciding for itself whether or not to establish an ILC focal point within the clearing-house. And then of course, as with everything, there is the issue of money. How will benefits be shared, how will the regime be funded? What is the financial mechanism of ABS? Currently it is the Global Environment Facility (GEF), which is fed by the World Bank. As of 2011 there is the Nagoya Protocol Implementation Fund (NPIF) which is meant to build capacity of developing countries, help them ratify the Protocol ASAP, and to raise some much-needed awareness about ABS. So far Japan and the EU have put in 1 billion Yen and 1 million Euros respectively.

As I hope to have conveyed by now, there are many issues in ABS left underdeveloped and many complex questions left unanswered. For example, what about benefits arising from the natural resources of areas that are under no national jurisdiction: Antarctica and the high seas? What’s the temporal scope: what about GRs that were accessed prior to the Protocol, and which are still benefitting the user party? What about GRs that, say, the British Natural History Museum loaned out from its vast archive of plants collected (without PIC and MAT) by Victorian explorers with the help of slaves that is now used in research leading to the development of a new medicine—who then is owed benefits? What of Indonesia’s claim that in the 2008 avian flu pandemic it was forced to hand over GRs to help develop a vaccine, but was then not given said vaccine and was not compensated in any way? Are pathogens also not included under ABS, as with crops? Do WTO rules trump the NP? How do non-Parties, like the United States with its vast assemblage of plundered GRs and TK fit into the picture? Even after 19 years as a pressing issue, ABS is still chaotic. Bio-piracy continues, indeed is facilitated in ways by the regime through a particular reading of the NP, which was adopted in a rush rather than negotiated. Benefit-sharing is still reluctant and very limited. ILCs are still exploited and ignored when possible. The UNFCCC still hogs the (often unflattering) limelight. While many eyes may be on Durban this December and many more on Rio next June, the trench warfare of ABS quietly continues.