Opinion | Wronged by the Wrong Language: The International Regime on Access and Benefit-Sharing
Nomenclature matters. Harvard naturalist E.O. Wilson insists that "[t]he first step to wisdom, as the Chinese say, is getting things by their right names." Getting things by the wrong name, albeit unwise, need not be fatal. In Through the Looking Glass, Humpty Dumpty tells Alice that names can mean whatever he chooses for them to mean. For the Convention on Biological Diversity (CBD) "genetic resources" means "material of actual or potential value" where "‘genetic material" means "any material of plant, animal, microbial or other origin that contains functional units of heredity." "Material" is synonymous with "tangible" and so "genetic material is [anything tangible] of plant, animal, microbial or other origin that contains functional units of heredity" However, the object of biological research is intangible, as evidenced by "genetic information," a ubiquitous term in the scientific literature. An economics of information exists and its prescriptions are unambiguous: policies that enhance efficiency and equity for tangibles aggravate inefficiency and inequity for intangibles. The CBD has gotten both the name ("genetic resources") and the meaning ("material of any plant, [etc.]") wrong and the combination is fatal for the International Regime on Access and Benefit-Sharing (ABS). In other words, the Conference of the Parties (COP) has embarked on the wrong road and must turn back.
Ancients would often kill the messenger of bad news; through wilful ignorance, moderns achieve the same effect. The politician who was wrong says to the wronged constituency "No one could have foreseen the [fill in the blank for the crisis du jour]." The truth is that almost every big piece of bad news was foreseeable and foreseen by [fill in the blank for an expert]. Salient examples are the absence of weapons of mass destruction and Hans Blix, or financial collapse through massive leveraging and Nouriel Roubini. The failure of the CBD to achieve fair and equitable ABS is no exception. In 1996, USAID commissioned the first author of this piece to assemble case studies for The Summit of the Americas on Sustainable Development. Case Number Six was entitled "The Impossibility of a Successful Case of Bioprospecting without a Cartel." But even then the argument was not new, having been launched in book form in 1992, the year of the signing of the CBD. Over the next eighteen years, various publications pondering the implications of genetic resources as information appeared, the latest being "The Museum of Bioprospecting, Intellectual Property, and the Public Domain: A Place, A Process, A Philosophy." A Google search will prove fruitful.
In a nutshell, the justification for oligopoly rights over genetic information is the same as for monopoly intellectual property rights. Nevertheless, as late as July 2010, CBD experts were still writing about political economy and the International Regime without any utterance of the rationale for a cartel, even as minimum requirements are discussed. The ancients would be proud.
How can the International Regime turn back? Over an illustrious career, John Kenneth Galbraith (1908-2006) envisioned academia as a countervailing power to vested interests. In the concluding chapter of Collapse Jared Diamond writes something similar with regards to the role of NGOs. As an academic and a program director for an NGO, the authors of this piece are less sanguine. COP delegates seem impervious to dissent, be it from the academy or an NGO. We look to the cracks in the existing power structure.
An analogy between carbon emissions and ABS may be useful: just as the insurance industry is pitted against Big Oil and Coal, certain elements within biotechnology are unaligned with those of Big Pharma and Agro. Especially hopeful is the International Barcode of Life (iBOL), which must secure access to achieve its mission. So far, its strategy has been to split hairs between commercial and non-commercial research and join the long list of wannabe CBD exceptions. We believe that that beaten path is the wrong road and urge iBOL to elevate Plan B, viz. the biodiversity cartel, to Plan A. The cartel-as-International Regime gets the nomenclature right while doing right by the stakeholders.
The mechanism of the cartel-as-International Regime is simple. Genetic resources would flow freely with disclosure of the species bioprospected in the patent application. Any resultant royalties would be distributed proportional to the range within the countries of origin. For species so widely distributed that the costs of determining the range outstrip the royalties collected, the sum "should be used to diminish the fixed costs of the gargantuan database." These words were published in Genes for Sale (1994), before anyone imagined that iBOL would emerge as the gargantuan database.
Early reviews of Genes for Sale obsessed with the database: it did not exist and would not exist for many years. COPX delegates, who wrongly conceive "genetic resources" as tangibles, can save face by claiming that only with the formal activation of iBOL in October 2010 is the Biodiversity Cartel possible, Google be damned.
Joseph Henry Vogel is a Professor at the University of Puerto Rico-Río Piedras and Manuel Ruiz is Programme Director at the Peruvian Society of Environmental Law. The opinions are those of the authors.
Convention on Biological Diversity, Article 2. http://www.cbd.int/convention/convention.shtml
Vogel, Joseph Henry. "White Paper: The Successful Use of Economic Instruments to Foster the Sustainable Use of Biodiversity: Six Cases from Latin America and the Caribbean". Biopolicy Journal, volume 2, Paper 5 (PY97005), 1997
Cabrera Medaglia, Jorge. "The Political Economy of the International ABS Regime Negotiations: Options and Synergies with Relevant IPR Instruments and Processes" (Geneva, Switzerland: International Centre for Trade and Sustainable Development, 2010).