Accessing genetic resources and sharing the benefits: Lessons from implementing the Convention on Biological Diversity

International Workshop, 29–31 October 2003
MU II, Davis Campus, University of California, Davis CA USA

Conclusions

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Background

In 1992, the Convention on Biological Diversity (CBD) provided a mandate for countries to develop national genetic resources access and benefit-sharing (ABS) policies. In the last ten years, however, countries have encountered multiple obstacles in developing such policies. Further motivation for developing national ABS policies was provided by the 2001 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization. In addition, the Plan of Implementation that came out of the 2002 Johannesburg World Summit on Sustainable Development recommended (a) promotion of the wide implementation of and continued work on the Bonn Guidelines on ABS as an input for countries developing ABS policies and (b) the negotiation of the development of an international regime to promote the fair and equitable sharing of benefits derived from the use of genetic resources. Only a limited number of countries have developed and implemented ABS policies and there has been a slowing of the flow of genetic resources and reciprocal benefits between countries.

A large-scale and comparative analysis of different national experiences with the development and implementation of ABS policies in all the Pacific Rim countries that have signed the CBD was initiated in 2001 by the University of California. An overview of the results was presented at a workshop held 29-31 October 2003 at the University of California, Davis. Forty-five experts on ABS issues from seventeen Pacific Rim countries, multilateral organizations involved in CBD implementation, NGOs with CBD expertise, collections-based organizations, industry, and academia participated. The workshop also provided an opportunity to define the main elements and gaps of the existing international system of ABS governance, the main elements of the future international regime on ABS, and measures that might be taken by the international community to enhance effective international governance. These are the main conclusions reached during the workshop:

Main elements of the existing international system of ABS governance

• Hard law elements (CBD, TRIPS, International Treaty on Plant Genetic Resources for Food and Agriculture, international phytosanitary laws, regional and national ABS, IPR, and traditional knowledge laws and policies).
• Soft law elements (Bonn Guidelines, national biodiversity strategies and action plans, and regional policies, such as Organization of African Unity ABS Model Law).
• Codes of Conduct: Professional societies (such as the International Society for Ethnobiology), institutional groups (such as botanical gardens), and private sector companies have adopted codes of conduct or ethics that provide guidelines about the collection of samples and traditional knowledge and benefit-sharing criteria.

Gaps in the existing international system of ABS governance

• Many countries are struggling to develop national ABS laws and policies. Lack of technical expertise, budgetary constraints, weak government structures and political support, local social conflict, and conflict over ownership of genetic resources are some of the factors that have prevented the development of these laws and policies. In the Pacific Rim region 41 countries have signed the CBD. Only 22% of these countries have developed a national ABS law or policy, 58% of these countries are in the process of developing these laws and policies, and 20% are not engaged in any systematic process leading to the development of these ABS frameworks.
• Implementation of ABS policies and laws has been relatively poor all over the world. In the Pacific Rim region, national ABS laws in the Philippines, Costa Rica, Samoa, Mexico, and the United States (not a CBD member) have been invoked to facilitate access to a total of 29 bioprospecting projects since 1992. (Other projects have been implemented under bilateral ABS agreements.) Issues identified with the slow implementation of national laws include PIC conflicts, lengthy and overly complex application procedures, ambiguities in the scope of ABS frameworks, inadequate biodiversity conservation incentives, and variation in the expertise on these issues among the individuals assigned the responsibility for carrying out the development of ABS policies from nation to nation.
• There is a gap between expectations of what bioprospecting might deliver and the reality of what it can deliver. For some persons, the issue is that as yet there are no clear guidelines on what amounts to equitable benefit sharing; there is an excessive focus on monetary benefits; and technology transfer is neither well defined and understood nor well linked to genetic resources access and utilization; For others, however, the issue is an excessive focus on nonmonetary benefits and technology transfer thereby obfuscating the crux of the problem: unrealistically low royalty rates that are entertained in negotiations only because of rent-seeking behavior by authorities in the source country.
• There is a wide perception that the CBD has not led to any significant increase in technology transfer, one of the pillars of the CBD’s ABS provisions.
• Knowledge of the processes of science and discovery in biotechnology, of intellectual property, and of market-established agreement (or contract) terms is fragmentary.
• There is an absence of compliance and verification mechanisms to monitor and enforce the CBD’s ABS provisions, however, it is widely accepted that the courts should be only a final recourse.
• There is a shortage of information gathering, exchange, and dissemination mechanisms, and a need to enhance the capacity and scope of the CBD clearinghouse role.

Main elements of the future international regime on ABS

• An international regime will continue to include elements of both soft and hard law, and may involve implementation of the CBD, strengthening of the Bonn guidelines, and development of provider and user measures and international arbitration systems.

Measures that might be taken by the international community to enhance effective international governance

• User measures such as disclosure of origin, voluntary certification schemes, and adoption of incentives and other measures to secure technology transfer and import/export and transport regulations might promote compliance with ABS policies and help to ensure the equitable sharing of benefits and an increase in transfer of technology.
• Components of national ABS policies designed to attract researchers (including both academic and corporate bioprospectors) to study biodiversity could be an effective means to counter the global trend of declining bioprospecting efforts and increase opportunities for benefit-sharing, advancement of science, and furthering our understanding of biodiversity.
• Development of an internationally recognized system to document the flow of genetic resources, including where appropriate a means to provide evidence of PIC, has an important part to play in consolidation of an effective system of international ABS governance. The use of the terms certificates of origin, source, and provenance have different political and practical implications. Studies to clarify these concepts would be useful.
• The transfer of samples to third parties should not be carried out except to the extent authorized by the countries of origin or the authorized ex situ collection that provided the sample.
• Transfer of technology is one of the principal forms of nonmonetary benefit sharing provided for in the CBD and is a crucial component of ABS. It would be useful if the CBD could initiate gathering of information and analysis of these questions: Where do genetic resource-related technologies occur and where have they been transferred?; What is the extent of recipient capacity to use and further develop such technologies?; Where has transfer been sustainable and where not?; and What are the reasons for success or failure in transfer of technologies?
• It is important to explore the possibility of developing guidelines for technology transfer in the context of articles 16 and 19 of the CBD. One approach meriting consideration would be to have the CBD include within its program of work the development of guidelines on technology transfer.
• An ombudsman or complaints authority associated with the CBD, as well as at regional and national levels, offers an interesting possibility for development of alternative dispute resolution mechanisms. An ombudsman office at the level of CBD may be linked to a linked series of regional structures for monitoring compliance with the CBD and Bonn Guidelines in ABS agreements.

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