How to improve the system on access to genetic resources and benefit sharing?

7 November 2018
  • 25 years of access and benefit sharing in international treaties and national laws have not yielded the expected results nor satisfied the expectations of many countries.
  • We must rethink genetic resources as (natural) information and not as tangible, material resources.
  • Applying the economics of information offers conceptually sound and robust solutions to access and benefit sharing.
  • Bounded openness to natural information emerges a robust approach based on low transaction costs and simple procedures.

 

Of all the issues negotiated by the Convention on Biological Diversity (CBD) more than 25 years ago, access to genetic resources and benefit sharing (ABS) was the most contentious. Control of and rights over genetic resources dominated the process and pitted countries in the South (biodiversity endowed) against countries in the North (technologically advanced).

These talks resulted in the convention approving the basic and general principles for an international regime to govern the conditions under which genetic resources can be accessed and used, and how monetary and non-monetary benefits – for example technology transfer –  derived thereof can be shared equitably among countries.

Starting in 1994, countries in the South rapidly began to develop their national ABS regimes. Many now have national legislation in place and others are in the process of elaboration. As a result of the convention, two specific ABS instruments were approved for the further refinement, improvement, and precision of ABS principles: the International Treaty on Plant Genetic Resources for Food and Agriculture (2001) and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits (2010). 

However, 25 years of ABS in international treaties and national laws and regulations have not yielded the expected results nor satisfied the expectations of many countries. The reasons behind this vary considerably. One increasingly strong argument is that genetic resources have been treated in policy and legal frameworks as a tangible element when, in fact, for the purpose of their use in biotechnology and other related fields – for example bioinformatics and genomics – it is their informational dimension that is critical as an asset and source of value.

From the times of Darwin, Mendel, and Schrodinger, to the more recent works of Crick, Venter, and Dawkins, scientists have acknowledged the informational dimension in genes and its importance – something which seems to have been overlooked in the CBD and its derived policy and legal processes.

Furthermore, the assumption that “sovereignty” and contracts can result in fairness and equity in benefit sharing is highly disputable. Jurisdiction shopping (“looking for the best bargain”) over geographically dispersed and disseminated tangible resources, for example, reduces the price of access and is reflected in the low royalties negotiated in these agreements. Examples abound.

In addition, new technologies such as synthetic biology and the concept of digital sequence information have added further emphasis to these discussions. Policy and legal frameworks are struggling to catch up with these technologies and capture their relevance to ABS.

Scholars have become more interested in these issues and policymakers are paying added attention to the matter. A number of experts who were exploring biodiversity and genetic resources as information in the early 1990´s – for example Stone, Swanson, Vogel, Kagedan, and Parry – were highlighting the need to develop more coherent frameworks to regulate ABS. The concept of “natural information” now seems to be gaining traction in academic and policy discussions.

As a result, “bounded openness over natural information” emerges a robust conceptual approach based on low transaction costs and simple procedures for accessing the biological medium of natural information.

In simple terms, under bounded openness genetic resources should flow unimpeded (the openness) for the purpose of research and development, but not free of costs: when and if a commercially successful intellectual property protected innovation is generated, a previously negotiated fixed royalty rate corresponding to the type of industry – for example pharmaceutical or cosmetics – will determine the sharing of monetary benefits according to the spatial distribution of species from which natural information has been extracted (the boundedness).  Benefits are shared ex post and only if distribution is worthwhile. If not, monies will be directed to an institutional mechanism – widely recognised international research institutions for example – to improve technologies and capacities to undertake taxonomy and calculate the distribution of species.

Although substantial changes may be required in international policy processes, and a review of the CBD and Nagoya Protocol will also be warranted, as a Turkish proverb goes, “No matter how far we have advanced along the road, if we think we are not heading in the right direction then we must turn back.” That is the approach the ABS process may need: critical self-reflection and a shift in direction. 

 

This post is derived from the paper Access to Genetic Resources and Benefit Sharing 25 Years on: Progress and Challenges authored by Manuel Ruiz Muller and commissioned by ICTSD.

Manuel Ruiz is Director and Principal Researcher at the International Affairs and Biodiversity Programme, Peruvian Society for Environmental Law.

 

Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect the views of ICTSD. Further perspectives will be published in response to this discussion on the Convention on Biological Diversity and access and benefit sharing.