Terms of engagement: the trench war over bio-resources

~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.

Congratulations! … It’s a Protocol.

by Trudi Zundel

It’s a fairly grotesque analogy: the Nagoya protocol as a newborn infant, finally emerging after years of arduous labour, ready to face the world but also helpless, in need of nurture and care. One would (or at least I did) expect the UN to be too reserved a forum for such visuals, yet Janet Lowe, ICNP Co-Chair from New Zealand, has analogised the Nagoya Protocol as such. This was not just a one-off metaphor, though; it has popped up several times in the discourse so far. In response to protests by Egypt about the text, the Co-Chair said that “sometimes babies cry not because something is wrong but because they want attention.” The Nagoya Protocol isn’t just any newborn, it’s a colicky one at that. If one was to extend the infant analogy of the Nagoya Protocol a bit farther, poor baby Nagoya’s story gets pretty dark.

Its parents had a difficult time conceiving. They tried for years and years but couldn’t seem to agree on the process.  Finally, on the final night of the COP in Nagoya, a baby simply needed to be made. There was no time for the natural process, but thankfully the Co-Chairs came to the rescue and said “Here! Adopt my baby!” And so, the Nagoya Protocol was ‘born,’ or rather ‘adopted’ (… kind of a COP-out). There was no going back. It was a living, fixed organism, in the charge of the Secretariat and the States.

I know they say that parents love adopted babies as much as their own, but in this instance that may not be the case. The baby is really difficult! It cries for attention, according to Lowe, of its own accord.  States appear to be the reluctant parents of this bawling infant. And while all babies need to be nurtured into good health, its parents may have unwittingly adopted a terminally ill, or significantly disabled, child. That’s not politically correct to say, and makes me very uncomfortable. I would never refer to an actual baby in that manner.  And I guess it’s here that the metaphor of baby Nagoya Protocol falls apart.

The Nagoya Protocol is not a baby. It is a document. We don’t need to be politically correct in referring to a document  –it doesn’t have rights!  It’s inanimate! While metaphors such as these are useful, they are also dangerous in their reductions. Personifying and infantilizing the Nagoya Protocol creates an image that is hard to escape from, one which places the Parties in a passive role, separate from the process of its creation and left to make the best of the outcome. Escaping from the baby metaphor could change the game a bit.

The process of developing a foetus is passive gestation, and parents have limited say in whatever baby comes out. The Nagoya Protocol’s imperfections are not the result of genetic probabilities, though, but of foreseeable and negotiable issues within a complex global political system. It is not newborn! It is one of many textual manifestations of years and years of genetic resource trade, politics, and exploitation. While it’s a fixed document, of course it should be criticized. Of course we should reflect on the skewed process that resulted in its creation, take responsibility for it.

The flawed process has been acknowledged, and I understand that the Co-Chair’s plea to keep moving forward and nurturing the Protocol was aimed at avoiding a re-negotiation the content or wording of the Nagoya Protocol. However, the analogy continues throughout projections for the future of the protocol: States and the Chair have mentioned that “the baby needs to crawl before it can walk,” “it may stumble but will pick itself up and carry on,” and numerous other references. This personification is problematic because it absolves Parties, to a certain extent, from their responsibility in shaping the Protocol as it develops. While they’re responsible for nurturing and encouraging it, it will carry on and become independent.

This is a very dangerous idea. For the Protocol’s mechanisms to a) begin to meet the needs of its Member States, and b) to continue to meet their needs, they require constant attention and commitment from all Stakeholders. A Protocol left to itself isn’t actually independent; it is only run and influenced more subtly. As we’ve seen here in Montreal, the Secretariat is far from neutral, and States need to pay consistent heed to keep the Bureau and Secretariat in check. The document doesn’t need to be nurtured, it needs to be whipped into shape. You can’t whip a baby.

It is difficult to implement a Protocol that Parties don’t agree with.  I think that States, and the Chairs that facilitate the meeting, should try to ensure that any protocol that is “born” meets the needs of the Parties creating it, and that all issues are fully negotiated. Adopting a baby just for the sake of “having a baby” is a silly idea–especially when the baby isn’t actually a baby, but is instead a flawed Protocol that will have significant effects in the real world. A protocol has the potential for positive or very, very negative results, and the outcome depends less on what happens after it’s “born” and more on the active, dynamic process that creates it.


Although security is quite tame here in Montreal, once inside the building I notice the silent, uniformed men who guard bathrooms and closets, never saying anything. At a side event at lunch, I turned around only to see one such guard standing in a darkened, empty translating room, watching. In the plenary I notice them as they patrol up and down, looking along every row of laptops. Who do they think is here? Are they on the lookout for biopirates and corporate criminals?

The Personal is Political at the CBD

~by Graham Reeder

This week, three COA delegates have been observing the Convention on Biological Diversity’s Intergovernmental Committee for the Nagoya Protocol on Access to Genetic Resources and Benefit Sharing of Benefits Arising from their Utilization (UNEP-CBD-ICNP1), a technical meeting that aims to lay the groundwork for how to begin implementing the recently (Oct 2010) agreed upon Nagoya Protocol.

Things have been picking up speed here in Montreal over the past few days. We spent Monday and Tuesday watching delegations give feedback on the texts that the secretariat had prepared. Nothing dramatic happened until Tuesday afternoon, when the Egyptian Delegate, Dr Ossama El-Tayeb,  put his foot down, challenging the secretariat’s attempt to redefine (and water down) the already agreed upon definition of compliance; which would make it non-legally binding and holding no weight in court. This caused quite a ruckus, as the secretariat were clearly doing all they could to avoid any substantive deliberation and to stick to menial administrative editing that could then be ignored. This relates to a larger issue that many countries have with these negotiations because the secretariat has attempted to push through text by separating the form and the function of the access and benefit sharing mechanism.

As we listened to Dr. El-Tayeb’s various interventions, we couldn’t help but notice that despite getting slapped on the wrist by both the co-chairs and the African Group as a whole (represented by Cameroon), he has a much better grasp of what was in the text and is able to navigate the process with grace and poignancy. Another example of personality politics during negotiations is the Chinese delegate; he managed to challenge the co-chairs directly, which almost never happens, but did so with enough humility and humour that he got away with it. These interventions are dramatically different in character than, for example, those of Cuba, who attempted to point out inadequacies in the early days of the negotiations but were shut down by the co-chairs for being off-topic or untimely. What we later learned was that when a recommendation is made at the incorrect time, as deemed by the co-chairs, the recommendation is struck from the record and needs to be re-stated in order to be included in the report. Many less experienced delegates do not necessarily understand this and find their valuable input thrown into a void.

Delegation dynamics are complex and subtle; Christine von Weizsacker of Ecoropa explained to us that some larger delegations arrive not only with government environmental department representatives, but with watchdogs from trade, health, and international affairs departments who make sure that the delegation’s promises conform with other internal national matters. This is one of many reasons that larger delegations from the global north are so conservative. Smaller delegations on the other hand, are at an even greater disadvantage. Although many delegates arrive with legal expertise and a strong understanding of the texts and issues at hand, most of them do not have up to 20 years of experience in these kinds of arenas. UN negotiations are a subtle and frustrating art, and without the comfort levels that come with having known most in the room for years, as is clearly the case for delegates from Egypt, Japan, the EU, Canada, and China, it is near impossible to sway the room or even have one’s voice heard.

This is not only a problem at the technical meetings for the Convention on Biological Diversity; the UN faces challenges of representation and fairness across the board. Having been carried out of a long history of diplomatic exclusion, the old boys club that was once the League of Nations still has a long way to go before being truly fair. The impression this leaves me with is not a cheerful one. The art of negotiating requires many resources to maintain negotiators that excel for the constituencies that they represent, often leaving important decisions to the luck of the draw. It seems that Egypt has managed to get an excellent hand, but they fight an upward battle when the rich nations of the world spend a lot of money to print their own cards. Given all this inefficiency and nepotism, it is no wonder that most of the important work that is done in diplomacy occurs behind closed doors, while the global south and civil society have brought in a huge change by raising their profiles and getting to the negotiating table, they still find themselves locked out or uninvited to the meetings that set the rules of the game.

Making sure this work gets done is one of the key roles that civil society fills at negotiations, NGOs can often say things that countries cannot, for fear of losing diplomatic clout or being punished by trade/aid cuts (a practice the United States is particularly fond of). The work that UNfairplay does to support small and underrepresented delegations at climate negotiations is inspiring and important. Check them out at www.unfairplay.info/, particularly their report (Project FIG) on filling in the gaps.