Birdlife Policy Brief on Access and Benefit Sharing

) Neil Palmer (CIAT

BirdLife Policy Brief for CBD COP-10, Nagoya

Access & Benefit Sharing (ABS) Access to genetic resources and the fair and equitable sharing of benefits arising from their use is one of the three fundamental objectives of the Convention on Biological Diversity (CBD). This provision is commonly known as Access & Benefit Sharing or ABS. It refers to the way genetic resources – whether from plants, animals or microorganisms – are accessed in countries of origin and how the benefits that result from their use by various research institutes, universities or private companies are shared with the people or countries that provide them. In 2000, CBD members created a working group to address concerns of bio-piracy and ensure that developing countries benefit from discoveries based on native species or traditional medicine. Bio-piracy refers to the commercial exploitation of plants or other genetic matter without adequately compensating the countries and communities where they are found.

The World Summit on Sustainable Development (WSSD), held in 2002, asked the CBD to complete the development of a new regime on ABS by 2010. Since its creation, the ABS working group has met more than nine times. The draft protocol, introduced in March 2010 at the ninth meeting of the Ad Hoc Open-ended Working Group on Access and Benefit Sharing in Cali, Colombia, gathered the essential parts of the international regime but has since been the subject of countless amendments in the form of bracketed text leaving several options for further discussion. Further meetings in Montreal in July and September to try to obtain consensus on key issues failed to issue a text agreeable to all parties and bracketed text was again found throughout the draft text. Critical issues that remain outstanding include the scope of the new protocol, the provisions on access, benefit sharing, and compliance.

BirdLife believes that it is imperative that COP-10 wraps up negotiations on the international ABS regime resulting in a Protocol to the CBD which is legally binding. The treaty must be comprehensive and should have an effective compliance system. The critical importance of this issue is manifest in the stated resolve of many developing countries to block progress in all other aspects of the Convention unless there is consensus regarding the establishment of a legally binding regime on ABS. Governments must muster the political will to resolve the outstanding issues at the next meeting of the working group and endorse a new protocol in Nagoya.

Article 3 – The Scope of the Protocol Outstanding issues revolve around genetic resources acquired before the entry into force of the protocol, and what genetic resources, such as human genetic resources, or human pathogens, may be excluded from the text. There is also no agreement yet with regards to whether the protocol should cover traditional knowledge, derivatives (ie products derived from genetic resources)

and genetic resources obtained beyond national jurisdiction. Another area of contention is the relationship between the protocol and other international instruments such as the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) and the World Trade Organisation (WTO).

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Article 4 – Benefit Sharing After the third session of the ninth meeting of the working group which took place in September 2010, it appears that negotiators have agreed that the benefits arising from the utilisation of genetic resources shall be fairly and equitably shared with the provider and that this sharing shall be based upon “mutually agreed terms”. Also, Parties will be encouraged to take legislative, administrative and policy measures to ensure this.

There also appears to be agreement that benefits may be monetary or non-monetary. However, there is no agreement with regards to sharing of benefits arising from the use of traditional knowledge associated with genetic resources with the local community holding that knowledge. Other outstanding issues include the status of ex-situ collections, bilateral/multilateral agreements and what happens in the absence of “mutually agreed terms” (MAT).

Article 5 – Access There has been a lot of discussion and controversy on the draft provision on the establishment of a procedure that ensures access to genetic resources and/or associated traditional knowledge with the “prior informed consent” (PIC) of the provider country/ country of origin and the involvement of the community concerned. This issue is still unresolved.

Article 6 – Special consideration to non-commercial research and emergency situations A footnote to this article states that “this article was the proposal of one Party, and was neither agreed nor negotiated, it remains entirely in brackets, the first meeting of the Conference of Parties serving as the Meeting of the Parties to this protocol shall adopt guidelines to support Parties in implementing this Article”. Several Parties are wary about exemptions under this article for fear that the grey zone between noncommercial and commercial use might be exploited to circumvent the provisions of the protocol. On the other hand, supporters of this provision point to the need for procedures to handle “emergency situations, including serious threats to public health, food security or biological diversity,” and the sharing of pathogens.

Article 12 – Compliance with domestic legislation or regulatory requirements on access and benefitsharing Parties are required to take appropriate (legislative, administrative or policy) measures to ensure that genetic resources have been accessed in accordance with “mutually agreed terms” (MAT) and “prior informed consent” (PIC), as required by the domestic legislation or regulatory requirement of the provider country. Since the two issues are unresolved, there is no agreement about whether this should apply to derivatives and associated traditional knowledge.

BirdLife contact in Nagoya:

Leticia Lopez leticia.lopez@birdlife.org