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– by Linda Siegele, Le'a Malia Kanehe
Along with the Framework Convention on Climate Change and the Convention to Combat Desertification, the text of the CBD was agreed by parties at the United Nations Conference on Environment and Development (UNCED), held in Rio de Janeiro in 1992. The “Earth Summit” was unprecedented in terms of size, scope and lasting influence, but it was not free of conflict. Access and benefit sharing was one point of contention, exemplifying the overarching divide between developed and developing countries.
The agreement finally reached on ABS has been called the “grand bargain”. Basically, developing countries agreed to provide access to their genetic resources in return for a share in the economic benefits derived from developed-country-use of those resources. In practical terms, however, implementing this bargain has been difficult.
At first glance the notion of access to genetic resources and benefit sharing appears simple. In fact, it is a densely packed collection of concepts. The Convention defines genetic resources as “genetic material of actual or potential value”, and genetic material as “any material of plant, animal, microbial or other origin containing functional units of heredity”. Combined, these definitions imply not only that genetic resources have some form of commercial value, but also that this value lies in their component hereditary units, or DNA. Extracting DNA or other similar hereditary material generally requires a high level of technological expertise.
A diverse set of stakeholders
What is perhaps the CBD’s most significant principle is found in Article 3, which provides that states have the sovereign right to exploit their own resources. Nonetheless, parties to the CBD are required to protect and encourage customary uses of these resources in accordance with traditional practices; and the preamble to the CBD ties this obligation directly to indigenous and local communities. Accordingly, stakeholders in the “grand bargain” include:
– sovereign states (developed and developing countries alike),
– indigenous peoples and local communities, and
– the biotech industry.
In keeping with the principle of state sovereignty over natural resources, the CBD gives states the ultimate authority to grant access to genetic resources. Access is to be based on mutually agreed terms, subject to the prior informed consent of the party providing access. Parties to the CBD have recognised that the involvement of relevant stakeholders, including indigenous and local communities, is essential to the proper working of an ABS regime.
Benefits that arise from the use of the genetic resources must also be shared on mutually agreed terms. Again, the relevant stakeholders need to be identified and involved. “Benefits”, moreover, are not only understood in commercial terms. Biotech research and participation in such research are also considered benefits. Therefore, developing countries that provide access to genetic resources must in turn be given access to the technologies needed to make use of these resources, even where such technology is subject to patents and other intellectual property rights. It remains unclear exactly who is to be given such access. Indigenous and local-community groups have been very active in the negotiation process so far, but in the end, decisions will be made by the national governments (see below).
In 2001, the ABS working group, which was set up by the CBD parties, produced a set of voluntary guidelines for “establishing legislative, administrative and policy measures on ABS”. These non-binding provisions are called the Bonn Guidelines after the city where they were developed. These guidelines aimed at national governments were adopted by the parties in 2002.
Later that year, at the World Summit on Sustainable Development (WSSD) in Johannesburg, participating countries lifted ABS to a matter for international resolution. They agreed to negotiate “an international regime to promote and safeguard the fair and equitable sharing of benefits arising out of the utilisation of genetic resources”.
The CBD parties gave themselves until 2010 to comply with the WSSD mandate; but to date, very little progress has been made. For the most part, the parties have lined up along the same North-South divide that existed in 1992. Developed-country parties are leaning toward a non-binding regime, emphasising the principles of intellectual-property and contract. Developingcountry parties, on the other hand, are adamant that the regime consist of a legally-binding internationally agreed protocol, which includes provision for a comprehensive monitoring system.
In the ABS negotiations much more is at stake than resolving an argument over money and influence between sovereign states. Other relevant issues include
– the rights of indigenous peoples over genetic material and associated knowledge sourced from their traditional lands,
– the question of whether genetic resources and associated traditional knowledge can be patented and privately owned,
– the practicality of developing a global framework for regulating access to genetic resources and benefit sharing, taking into account different categories of genetic resources with different uses.
Tracing the true origin of genetic resources and monitoring their trajectory from source to ultimate utilisation requires a high level of technical sophistication and coordination. It remains to be seen whether a regulatory regime that must define at a given point in time its nature, scope and objectives can be flexible enough to keep up with the rapidity of technological change.
Ultimately, the ABS negotiations are a test of international law and its ability to effectively address the multi-faceted complexity of global issues. The experience gained in the ABS negotiating process could provide valuable lessons for the international community as it is tasked with resolving other global environmental issues.