CBD Reaches Agreement on Access and Benefit Sharing, But Some Question Its Effectiveness
In the wee hours of Saturday morning in Nagoya, Japan, a UN biodiversity summit was gavelled to a close. Thousands of participants rose to their feet in applause, despite some misgivings about the agreement that had just been reached.
After twelve days of up and down discussions, the tenth conference of the parties (COP 10) to the Convention on Biological Diversity concluded at 1:30am on 30 October with agreement on a protocol on access and benefit sharing (ABS) regarding genetic resources used in inventions, as well as accords on financing and a strategic plan for the organisation's work.
For much of the conference, which started on 18 October, it had seemed as though the CBD talks would join multilateral negotiations on trade and climate change in discord and deadlock (see Bridges Weekly, 27 October 2010). The outcome remained uncertain even hours before the final plenary as countries seemed to be unable to agree on a number of contentious issues regarding the ABS protocol. Only a compromise text formally introduced by Japan, the host of the meeting, managed to bridge the diverging positions help governments avert a collapse.
A number of developing countries lead by the G77-China bloc had repeatedly stated that they would not settle for an agreement on financing and the strategic plan alone. "Brazil and others could not accept the adoption of a strategic plan and a financial resource mobilization strategy if no [ABS] protocol is put into place. We are not bluffing. We are very clear on this", Brazil had warned during a press conference earlier that week.
They were true to their word. Once formal agreement on the ABS protocol was reached, a package consisting of the three main decisions was quickly sealed and adopted, accompanied by almost 50 specialised room documents. Delegates applauded COP 10 as a historic success.
Protocol just a starting point
Caution, however, mingled with the celebration and relief. "The ABS Protocol is only a starting point. Whether it will result in the viable regime against bio-piracy now depends on the implementation," one delegate told Bridges.
The African Group formally made a similar point in the closing plenary, stating for the record that the protocol was simply a first step for moving towards the implementation of the Convention's third objective, which is the "fair and equitable sharing of the benefits arising out of the utilization of genetic resources." Other countries called the protocol "imperfect" and "incomplete," though nonetheless an "important step" and "milestone achievement".
"It was momentum we had to make use of. Not agreeing was not an option. It would have squashed whatever we had achieved by now," a government official explained.
A masterpiece of ambiguity
While a certain degree of creative ambiguity is a hallmark of international accords, the text of the ABS protocol has left experts puzzled about what exactly has been agreed on for many critical issues, including the substantive and temporal scope of the agreement, giving rise to a range of partially conflicting interpretations.
While finalising the text, some disputed provisions were simply deleted. Other disagreements were resolved by replacing clauses with general statements that leave considerable room for interpretation.
Some crucial examples of ambiguity relate to the inclusion or exclusion of "derivatives," the protocol's temporal scope, the regulation of publicly available traditional knowledge and the compliance mechanism.
According to experts, some 90 percent of all biopiracy is related to derivatives - "naturally occurring biochemical compounds resulting from the genetic expression of metabolism of biological or genetic resources" - rather than the actual genetic resources capable of reproduction. The inclusion of derivatives was thus a main demand by a large number of developing countries.
The ABS protocol's treatment of derivatives is far from straightforward. Article 2 of the accord, which covers terms used in the text, includes far-reaching definitions of "derivatives" and the "utilization of genetic resources." Article 3, which sets out the scope of the accord, on the other hand, makes no explicit mention of derivatives. Instead, it refers to "genetic resources within the scope of Article 15 of the Convention" and "the benefits arising from the utilization of such resources". However, whether Article 15 of the CBD covers derivatives is the subject of disagreement between developing and developed countries. On the other hand, "benefits arising from the utilisation" of genetic resources could be interpreted to cover derivatives. "Utilisation" is also mentioned in Article 4, which covers fair and equitable benefit-sharing.
Also unclear was the status of genetic resources that had been taken out of their place of origin prior to the entry into force of the ABS protocol. Some parties to the CBD feared that a large number of cases could fall outside the Protocol's scope without some sort of retroactive protection.
The finally agreed Article 3 remains silent on the temporal scope of the ABS protocol, thus sidestepping any clear decision on the matter. The Japanese compromise text introduces a new provision, Article 7bis, calling upon parties to "consider a global multilateral benefit-sharing mechanism" to address "transboundary situations" and "situations for which it is not possible to grant or obtain prior informed consent." This could in theory apply to the use of genetic resources obtained ‘ex situ' (outside of their place of origin), or in a manner not compliant with the CBD. It would, however, depend on future negotiations. Public international law set out in the Vienna Convention on the Law of Treaties prohibits retrospective effect unless parties to a treaty agree otherwise. However, it does allow new agreements to apply to certain types of existing situations -as it is the case of Article 70 of the TRIPS Agreement un- , which could potentially cover situations in which resources had been accessed or were being used when the treaty entered into effect.
No compulsory disclosure requirement in patent applications
Other vague provisions leave much to be addressed by domestic processes. This is particularly true for compliance mechanisms. For years, many governments and experts have demanded a so-called "disclosure requirement" in patent applications - a requirement for patent applicants to disclose the use of any traditional knowledge or genetic resources used in their invention (several countries, including some developed ones, now support a similar requirement in talks at the World Trade Organization).
The demand for a disclosure requirement, as well as other issues relating to compliance, are now covered by an obligation to "take appropriate, effective and proportionate measures to address situations of non-compliance" and to "establish one or more effective checkpoints having functions relevant to the utilization of genetic resources" that "would collect or receive as appropriate, relevant information." However, what constitutes "appropriate, effective, and proportionate" is left to national authorities to decide. Therefore, the international regime alone will not provide legal certainty; its success will hinge on national implementation efforts.
Other international organizations and ongoing practices
Similar language also underpinned a compromise on how to deal with emergency situations that threaten human, animal or plant health. Novel language now states that "parties may take into consideration the need for expeditious access to genetic resources and expeditious fair and equitable sharing of benefits, including access to affordable treatments by those in need, especially in developing countries." This provision would be directly relevant to ongoing negotiations at the World Health Organization, where governments are debating whether countries should be obliged to share genetic material relating to human pathogens (such as the avian flu), and whether they can fairly expect to receive benefits for doing so.
Also ambiguous is the relationship between the new ABS protocol and talks on traditional knowledge at the World Intellectual Property Organization (WIPO). Following an explicit request from the European Union, the COP decision adopting the ABS protocol mentions a review process "in the light of developments in other international organizations, inter alia, WIPO" (in accordance with Article 25). The protocol also refers to "ongoing works and practices" which could be used to argue that the regulation of publicly available traditional knowledge should be handled at WIPO. Again, the agreement-facilitating silence on the specific relationship between the ABS protocol and WIPO created uncertainty that could make some aspects of the protocol subject to procedures outside the CBD.
All in all, however, papering over differences seems to be the only way in which governments could have found a compromise on the ABS protocol. Observers have argued that this would have not changed in the coming years, since differences seemed simply too stark on various core issues. In that light, they argue, the adoption of the Protocol, whatever its shortcomings, can be welcomed - so long as policymakers (and those who hold them accountable) bear in mind that much depends on the eventual domestic implementation, future review processes and in some cases other negotiating fora. Given that the US is not a party to the CBD, the importance given to other institutions, such as the WTO, could enhance the effectiveness of some of the ABS protocol's provisions.
The protocol will be open for signature from 2 February 2011 to 1 February 2012 and is to take effect 90 days after the fiftieth party has ratified it. The first meeting of the Intergovernmental Committee of the Protocol is to take place in June 2011.
To access a copy of the ABS Protocol, click here.