Progress achieved and outstanding issues on the way to adopting an International Regime on Access and Benefit Sharing under the

Convention on Biological Diversity

Presented to the

Workshop on Access and Benefit Sharing in Non-commercial Research

Lyle GlowkaLegal Advisor

Convention on Biological Diversity

Outline

1. CBD ABS provisions 2. Progress and trends over the last

15 years3. International Regime on ABS4. Suggestions on making this

meeting count

CBD ProvisionsThree objectives:• Conservation of biological diversity• Sustainable use of its components • Fair and equitable sharing of the

benefits from use of genetic resources

CBD Innovation“New” Equity Relationship:

Access to genetic resources in exchange for sharing of benefits derived from their use

Provisions of the CBD Four fundamental access-related principles:• Sovereign rights over genetic resources• Facilitate access to genetic resources• Prior informed consent• Mutually agreed terms

Provisions of the CBDFive fundamental benefit-sharing obligations:

• Research and development results (article 15(7))• Commercial or other benefits derived from use

(article 15(7))• Access to and transfer of technology using

genetic resources (article 16(3))• Participation in biotechnological research on the

genetic resources (article 19(1))• Priority access to results and benefits arising from

biotechnological use (article 19(2))

Over the last 15 years…• Near universal CBD membership• Global level processes

[FAO: Commission on Genetic Resources (On-going)] WTO: TRIPS Agreement (1995) CBD: WG-Art. 8(j) (1998) ATS: Bioprospecting in Antarctica (1999) WIPO: Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and

Folklore (2001) FAO: International Treaty on PGRFA (Rome, 2001) UNGA: UNICPOLOS (2001) and Ad Hoc Working Group on Biodiversity Beyond the Limits of Any National

Jurisdiction (2004) WSSD: International Regime on ABS (2002) UN: Declaration on the Rights of Indigenous Peoples (2007)

• Other processes Regional initiatives National initiatives Sectoral initiatives (e.g., codes of conduct) Capacity building projects Countless publications and studies

• Actual bioprospecting deals

Over the last 15 years…

• At national and regional level: Primary focus has been the provider side of ABS +/- 60 countries: have actually established an ABS regime or are working

towards one 12 of 17 “like-minded mega-diverse countries” have created an ABS regime

• At global level: Primary focus is compliance and enforcement

Progress on Benefit SharingSource: CBD Technical Series 38 (Laird and Wynberg, 2008)

• Benefit sharing: Growing as standard [business] practice Major CBD acheivement: Standards of best practice have emerged Need for PIC and benefit sharing is understood (e.g., Larger or more socially responsible

organisations) Sectors still out of the loop

• Questions remain: Who should benefit? Businesses prefer to direct benefits to scientific research institutions and partners (rather

than governments) ILCs should benefit but challenges remain

• Lack of resolution: What are appropriate benefits? Scale of benefits difficult to resolve Need to take a wider perspective: Importance of non-monetary benefits

• Importance of partnerships Access to local expertise Legal certainty +/- Compliance mechanism

ABS: Practical ConcernsSource: CBD Technical Series 38 (Laird and Wynberg, 2008)

• Misunderstanding and mistrust• Biopiracy charges have increased

Growing concern with negative attacks, bad press and criminalisation• Lack of awareness of ethical and legal obligations• Lack of governmental understanding of commercial/scientific research practices

and risks• Lack of competent national authorities (or unclear responsibilities)• Regulatory confusion, complexity and shifting goal posts• Legal certainty concerns• Impacts on science and development

ABS Timeline

• CBD: Entry into force (1993) • COP IV: Panel of Experts on ABS (1998)

• COP V: Open-ended Working Group on ABS (2000)

• COP VI: Bonn Guidelines (2002) • WSSD: Political mandate for international regime on ABS (2002)

• COP VII: WG-ABS mandated to work on international regime (2004) • COP VIII: Renewed WG-ABS mandate/established 2010 deadline (2006)

• COP IX: Established basis of negotiations to 2010 and identified outstanding issues for further exploration (2008)

The way forward… COP Decision IX/12 on ABS• Main basis for negotiations agreed• WG-ABS (x3 meetings)

WG-ABS7: Objective, scope, compliance, benefit sharing and access WG-ABS8: Nature, TK associated with GRs, compliance, benefit sharing and access WG-ABS9: Refinement

• Expert groups (x3 meetings) Concepts / terms / sectoral approaches Compliance-related issues TK associated with GR (Art 8(j) WG)

• Commissioned studies (x5) Direct methods to ID genetic resources using DNA sequences Options to track / monitor genetic resources (“Persistent global unique identifiers”) Compatibility with other regimes (e.g., FAO Int’l Treaty PGRFA) Cross-jurisdictional access to justice: Real and transactional costs Ensuring compliance in conformity with ILC customary laws

• Individual experts Should “economic rent” be charged for access to genetic resources? Global Information System on PGRFA (FAO Int’l Treaty PGRFA)

Making this meeting count Expert group: Concepts / terms / sectoral approaches (2-5 Dec 2008, Namibia)• Questions posed:

What are the different ways of understanding biological resources, genetic resources, derivatives and products?

What are the implications for the IR’s development including in relation to…commercial and non-commercial research? Identify different forms of GR use in relation to sectoral and sub-sectoral activities in the context of

ensuring benefit sharing (CBD Art 15(7)) Identify and describe sector-specific characteristics of ABS arrangements and identify the differences, if

any, between approaches in sectors What are the range of options and approaches for taking these different characteristics into account in

order to bring coherence to ABS-related practices in different sectors?• How this workshop can help:

Lend insight on the distinctions between BRs, GRs, derivatives and products, as well as the implications of technological trends, e.g., genomics, proteomics, metagenomics and publically accessible data/databases

Clarify the various “communities of biodiversity research” and their existing practices with respect to GR use and ABS to date (NB: CBD applicable to terrestrial and marine realms)

Identify options/approaches: Is there a common approach to ABS that could be taken across the broader biodiversity research community or will a range of approaches be needed to address individual biodiversity research communities?

+/- Recommendations on simplified access procedures?

Making this meeting count Expert group: Compliance (end of Jan 2009, Japan)• Questions posed (x4):

What kind of voluntary measures are available to enhance compliance of users of foreign genetic resources?

Are particular compliance measures needed for research with non-commercial intent? If so, how could these measures address challenges arising from changes in intent and/or users, particularly considering the

challenge arising from a lack of compliance with relevant access and benefit-sharing legislation and/or mutually agreed terms.

• How this workshop can help: Biodiversity research communities: Are there gaps in defining and applying best practice? Codes of conduct: How to ensure compliance? Suggestions to overcome obstacles?

Role of community etiquette, peer pressure, public funding agencies, journals, etc.? Other measures? Perspectives on the role of intermediaries Perspectives on the change of use/intent issue

Outlook

COP 10, Nagoya, Japan, October 2010