Terms of engagement: the trench war over bio-resources

~by Nathan Thanki

Although not classically what many would immediately think of as being a priority for a Convention on Biological Diversity (CBD), which one might imagine is solely concerned with conservation of cuddly polar bear cubs and lush rainforests,  access and benefit sharing (ABS) for genetic resources and their derivatives have their own Nagoya Protocol (NP). So it is worth saying a few explanatory words for any readers of [Earth] who are more familiar with CBD’s more dysfunctional, glamorous sister climate change convention than they are with ABS.

*Disclaimer: before going any further, I should say that there are many more in depth, user-friendly, objective guides to and analyses of ABS issues—such as those provided by the CBD secretariat (cbd.int), Earth Negotiation Bulletins (iisd.ca/process/biodiv_wildlife.htm#cbd), Third World Network (twnside.org.sg/access.htm), CEBLAW (ceblaw.um.edu.my/aboutus.php), and as always Wikipedia—which you should read if you are interested.  But I’ll give my own very shallow, unclear, and biased account.

To begin; what is being accessed? What constitutes genetic resources (GRs)? GRs include living organisms—plants, animals, and microscopic life—which have genetic material that may be useful to us: commercially in industry, pharmaceuticals, agriculture, cosmetics; and non-commercially in research, conservation, gene/seed banks and botanical gardens. However, the FAO already have an International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), so the ABS regime deals mostly with pharmaceuticals. Crucially derivatives are also mentioned in the language of the NP and have long been controversial in the ABS negotiations. I’m not of a scientific mind so to put it quite simply and by the book (the Oxford Dictionary of Biochemistry) derivatives are “compounds that at least theoretically can be formed from the precursor compound” (the original GR). So basically a user group could take a GR back to the lab, run it through some expensive machines for analysis, reproduce exactly what they want and then develop some product that can be seen as being new and justifiably patentable. Profits will be made, lots and lots of profits, and the benefits should be shared.

As to where and how such GRs are accessed, that can be either in-situ—that is to say in the field and overwhelmingly in the resource rich developing world—or ex-situ, i.e. in our collections such as Kew Gardens, almost exclusively located in the developed world. This differentiation becomes important when we consider benefits: should Kew Garden reap the benefits for a GR that it sourced from the Amazon? In this way, there are so many intricacies to ABS: it is never black and white. There can be cases of one user group and one provider group, but more often the case involves many user groups and many provider groups. Also, sometimes a GR that has been accessed for non-commercial uses ends up being used for commercial purposes.

There are agreed terms for how to do ABS. Access and use of and benefits from GRs have to be based on mutually agreed terms (MAT) between the users and providers. Prior informed consent (PIC) is the permission given by the competent national authority of a provider country to a user. It must be in accordance with the national legal/institutional framework. The complication around PIC is not immediately obvious, arising from varying understandings of the obscure language of the NP, but it goes as follows. If a provider country does not have said legal/institutional frameworks for ABS in place (and due to a lack of capacity they don’t: if the environment ministry is staffed by a handful of people it seems unlikely) then it cannot meet the commitment of the Protocol. PIC is particularly important for indigenous and local communities (ILCs) who are the owners of traditional knowledge (TK) about the many properties of GRs. However, their PIC is left to the discretion of the Party (the government of the provider country), and given that Kenya, Nigeria, and Burundi abstained and the USA (who is not a party to CBD anyway), Canada, Australia, and New Zealand voted against adopting the UN Declaration on the Rights of Indigenous People, we can see that this discretion might do very little for ILCs. If PIC for ILCs is referred to national law, then countries where that law doesn’t respect ILCs can do as they like legally. On top of the human considerations, there are also environment impacts. The CBD is quite clear: access of GRs should be done in a way that does not damage the environment, i.e. it must be sustainable use rather than plunder. Speaking of pillage and plunder, the term used for the exploitation of traditional knowledge of ILCs for commercial gain without fair and equitable benefit sharing is biopiracy. Developing countries want to use their own resources (common heritage of mankind goes out the window when you’re being exploited) to develop—so they have the sovereign right to deny access to a user. However, given that these resources have been commodified and so can be sold, there really isn’t much choice—you have to allow some kind of access. What the developed countries have fought tooth and nail for is the caveat that Parties must “avoid discriminatory rules in processing access permits.” It’s somewhat like telling a person that they must not discriminate who they have sex with, which is of course rape.

While there are such severe measures regarding what developing countries must to facilitate the access part of ABS, there is much less done to ensure the fair and equitable benefits sharing part. Benefits do not just take the form of a lump sum cheque: they can be anything from research funding and royalty payments to sharing of research and “social recognition” (in the NP there are almost twice as many examples of non-monetary benefits than there are of monetary ones). The NP again puts it very much in the hands of the user Party, “to take legislative, administrative, or policy measures, as appropriate” to ensure benefits are shared. No suggestions for what this may look like are given. This lack of a compliance mechanism has been one of the biggest criticisms of the ABS regime. The NP has paved the way for an ABS clearing house, similar to that of the Biosafety regime, which is supposed to facilitate compliance. However, what this clearing house will look like is not clear, other than that it should include relevant information regarding policy measures on ABS, national focal points, permits showing PIC and MAT, and codes of conduct. We will have to wait until the second Intergovernmental Committee on the Nagoya Protocol (ICNP2) next year to see how the details are fleshed out. Of particular concern is that ILCs are squeezed out of the picture, with each Party deciding for itself whether or not to establish an ILC focal point within the clearing-house. And then of course, as with everything, there is the issue of money. How will benefits be shared, how will the regime be funded? What is the financial mechanism of ABS? Currently it is the Global Environment Facility (GEF), which is fed by the World Bank. As of 2011 there is the Nagoya Protocol Implementation Fund (NPIF) which is meant to build capacity of developing countries, help them ratify the Protocol ASAP, and to raise some much-needed awareness about ABS. So far Japan and the EU have put in 1 billion Yen and 1 million Euros respectively.

As I hope to have conveyed by now, there are many issues in ABS left underdeveloped and many complex questions left unanswered. For example, what about benefits arising from the natural resources of areas that are under no national jurisdiction: Antarctica and the high seas? What’s the temporal scope: what about GRs that were accessed prior to the Protocol, and which are still benefitting the user party? What about GRs that, say, the British Natural History Museum loaned out from its vast archive of plants collected (without PIC and MAT) by Victorian explorers with the help of slaves that is now used in research leading to the development of a new medicine—who then is owed benefits? What of Indonesia’s claim that in the 2008 avian flu pandemic it was forced to hand over GRs to help develop a vaccine, but was then not given said vaccine and was not compensated in any way? Are pathogens also not included under ABS, as with crops? Do WTO rules trump the NP? How do non-Parties, like the United States with its vast assemblage of plundered GRs and TK fit into the picture? Even after 19 years as a pressing issue, ABS is still chaotic. Bio-piracy continues, indeed is facilitated in ways by the regime through a particular reading of the NP, which was adopted in a rush rather than negotiated. Benefit-sharing is still reluctant and very limited. ILCs are still exploited and ignored when possible. The UNFCCC still hogs the (often unflattering) limelight. While many eyes may be on Durban this December and many more on Rio next June, the trench warfare of ABS quietly continues.

Congratulations! … It’s a Protocol.

by Trudi Zundel

It’s a fairly grotesque analogy: the Nagoya protocol as a newborn infant, finally emerging after years of arduous labour, ready to face the world but also helpless, in need of nurture and care. One would (or at least I did) expect the UN to be too reserved a forum for such visuals, yet Janet Lowe, ICNP Co-Chair from New Zealand, has analogised the Nagoya Protocol as such. This was not just a one-off metaphor, though; it has popped up several times in the discourse so far. In response to protests by Egypt about the text, the Co-Chair said that “sometimes babies cry not because something is wrong but because they want attention.” The Nagoya Protocol isn’t just any newborn, it’s a colicky one at that. If one was to extend the infant analogy of the Nagoya Protocol a bit farther, poor baby Nagoya’s story gets pretty dark.

Its parents had a difficult time conceiving. They tried for years and years but couldn’t seem to agree on the process.  Finally, on the final night of the COP in Nagoya, a baby simply needed to be made. There was no time for the natural process, but thankfully the Co-Chairs came to the rescue and said “Here! Adopt my baby!” And so, the Nagoya Protocol was ‘born,’ or rather ‘adopted’ (… kind of a COP-out). There was no going back. It was a living, fixed organism, in the charge of the Secretariat and the States.

I know they say that parents love adopted babies as much as their own, but in this instance that may not be the case. The baby is really difficult! It cries for attention, according to Lowe, of its own accord.  States appear to be the reluctant parents of this bawling infant. And while all babies need to be nurtured into good health, its parents may have unwittingly adopted a terminally ill, or significantly disabled, child. That’s not politically correct to say, and makes me very uncomfortable. I would never refer to an actual baby in that manner.  And I guess it’s here that the metaphor of baby Nagoya Protocol falls apart.

The Nagoya Protocol is not a baby. It is a document. We don’t need to be politically correct in referring to a document  –it doesn’t have rights!  It’s inanimate! While metaphors such as these are useful, they are also dangerous in their reductions. Personifying and infantilizing the Nagoya Protocol creates an image that is hard to escape from, one which places the Parties in a passive role, separate from the process of its creation and left to make the best of the outcome. Escaping from the baby metaphor could change the game a bit.

The process of developing a foetus is passive gestation, and parents have limited say in whatever baby comes out. The Nagoya Protocol’s imperfections are not the result of genetic probabilities, though, but of foreseeable and negotiable issues within a complex global political system. It is not newborn! It is one of many textual manifestations of years and years of genetic resource trade, politics, and exploitation. While it’s a fixed document, of course it should be criticized. Of course we should reflect on the skewed process that resulted in its creation, take responsibility for it.

The flawed process has been acknowledged, and I understand that the Co-Chair’s plea to keep moving forward and nurturing the Protocol was aimed at avoiding a re-negotiation the content or wording of the Nagoya Protocol. However, the analogy continues throughout projections for the future of the protocol: States and the Chair have mentioned that “the baby needs to crawl before it can walk,” “it may stumble but will pick itself up and carry on,” and numerous other references. This personification is problematic because it absolves Parties, to a certain extent, from their responsibility in shaping the Protocol as it develops. While they’re responsible for nurturing and encouraging it, it will carry on and become independent.

This is a very dangerous idea. For the Protocol’s mechanisms to a) begin to meet the needs of its Member States, and b) to continue to meet their needs, they require constant attention and commitment from all Stakeholders. A Protocol left to itself isn’t actually independent; it is only run and influenced more subtly. As we’ve seen here in Montreal, the Secretariat is far from neutral, and States need to pay consistent heed to keep the Bureau and Secretariat in check. The document doesn’t need to be nurtured, it needs to be whipped into shape. You can’t whip a baby.

It is difficult to implement a Protocol that Parties don’t agree with.  I think that States, and the Chairs that facilitate the meeting, should try to ensure that any protocol that is “born” meets the needs of the Parties creating it, and that all issues are fully negotiated. Adopting a baby just for the sake of “having a baby” is a silly idea–especially when the baby isn’t actually a baby, but is instead a flawed Protocol that will have significant effects in the real world. A protocol has the potential for positive or very, very negative results, and the outcome depends less on what happens after it’s “born” and more on the active, dynamic process that creates it.



The Personal is Political at the CBD

~by Graham Reeder







Can we part with conventions?

by Nathan

There’s nothing new under the hot Montreal sun, but it is worth noting anyway. The Intergovernmental Committee on the Nagoya Protocol opened Monday morning, the first meeting on access and benefit sharing since the Protocol was finalised at the COP last October. For a protocol that seems wholly unfinished—Swizz cheese with more holes than cheese as one observer put it, or, as new co-chair Janet Lowe keeps putting it, a new-born baby in want of attention—there was an awful lot of back-patting and congratulating. Obviously, at a UN event this should come as no surprise, indeed it has become an expectation—Chairs and Parties are expected to decorate opening statements with more flowers than Kew gardens ex-situ collection; 90% introduction + 10% remembering that we must finish on time = zero content. A cynic might say it’s intentional.

Eventually we do get off the ground in the afternoon session of day 2, but that’s too late for a 5 day meeting. It’s seemingly small things such as, but not limited to, the delayed start that soon become the norm at these conferences. Wearing suits serves no real function, but we still do it. Distributing thousands of sheets of paper is redundant when every delegate has a laptop in front of them and the text changes so fast anyway, but that still happens. Holding fancy banquets at great expense is kind of unnecessary, but I don’t see that stopping anytime soon. It all signals a fetishism of ‘proper process,’ a lingering sentiment of older diplomatic practice that surely has no place in what should be urgent talks leading to drastic action, but in fact have been 20 years of gestation finally birthing a weak infant.

Of course this process is difficult. Of course we won’t have a protocol that immediately stops the lucrative practice of biopiracy, or sets clear parameters for what fair and equitable benefit sharing looks like. But if we expect precious hours and days to be wasted saying congratulations;  if we expect even the smallest demands of developing countries to be unmet for the longest time, and the voices of civil society to be largely ignored; if we expect for all real decisions to be made in small backroom meetings; and if we expect that the it is always the party who brings the money that calls the shots; if we expect nothing to happen, simply because it is conventional, then what good are these UN Conventions-climate, biodiversity, desertification, or other?

It is these sorts of norms that are now entrenched into the UN process which, by what is essentially tacit consent, help to uphold the very problems they now intend to solve. What can we expect, though, when those problems—like climate change, overpopulation, biopiracy and the like—too are caused by unquestioned norms on a broader societal level?

So it seems that the successful Convention will have to part with convention. The Convention on Biological Diversity has taken a few steps in the right direction—ABS negotiations have broken out of some manacles by giving civil society an active role at the table. Maybe, perhaps after Rio+20, this small change can lead to broader procedural adjustments. This is our hope for now.