Almost 15 years since the entry into force of the Convention, the operationalization of the third objective of the Convention remains a challenge. Indeed out of 190 Parties to the Convention, only approximately sixty have either adopted or are in the process of adopting access and benefit-sharing measures.
One might ask, what has impeded the implementation of the third objective of the Convention? The complexity of the issue which touches upon different types of genetic resources (e.g. plant, animal, micro-organisms) used by different actors (scientists, private companies) for different purposes (research, commercialization) in different sectors (e.g. agriculture, pharmaceutical, cosmetics, horticulture) certainly has contributed to the challenge. In addition, lack of awareness at the national level, including at the level of decision makers, has likely contributed to absence of progress with implementation. Lack of human and institutional capacity as well as the absence of adequate infrastructure in a number of developing countries has also impeded further developments.
The 2010 deadline for the negotiation of the International Regime on access to genetic resources and benefit-sharing is considered by many as a test for the Convention. Provisions of the Convention The Convention on Biological Diversity is a framework agreement. The objectives of the Convention are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources (1).
The main provisions addressing the issue of access to genetic resources and the equitable sharing of benefits arising out of the utilization of genetic resources are contained in articles 15, 16, and 19 of the Convention, which set out the obligations of Parties as providers and users of genetic resources. Article 8(j) addressing the protection, preservation and maintenance of traditional knowledge of indigenous and local communities, also addresses access and benefit-sharing as it relates to traditional knowledge associated with genetic resources.
As providers of genetic resources, Parties to the Convention are to take measures to facilitate access to their genetic resources. The Convention clearly establishes that States have sovereignty over their natural resources (2)and therefore have the authority to determine access to their genetic resources through national legislation. The Convention provides that Parties are “to create conditions to facilitate access to genetic resources for environmentally sound uses” (3). “Access shall be subject to prior informed consent of the Contracting Party providing such resources” (4) and shall be granted on the basis of “mutually agreed terms” (5) between the user and the provider. When acting as users of genetic resources, Parties to the Convention also have obligations to ensure the fair and equitable sharing of benefits arising out of the utilization of genetic resources. Measures are to be taken “with the aim of sharing, in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources” (6); to provide “access to and transfer of technology which makes use of genetic resources” (7). Measures are also to be taken “to provide for the effective participation in biotechnological research activities by those Contracting Parties, especially developing countries, which provide the genetic resources for such research” )8). Finally, all practicable measures shall be taken by Parties “to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties” (9).
In order to make these principles operational, Governments are to take measures to regulate on the one hand access to their genetic resources and the sharing of benefits arising from the utilization of these resources and, on the other hand, the use of genetic resources acquired by users under their jurisdiction in foreign countries, to ensure that these users comply with the access and benefit-sharing requirements imposed by providers, in accordance with the provisions of the Convention.
Bonn Guidelines on access to genetic resources and fair and equitable sharing of the benefits arising out of their utilization In order to assist Parties and stakeholders with the implementation of the Convention, the Bonn Guidelines were adopted by the Conference of the Parties in April 2002. These voluntary guidelines were developed to assist Governments and stakeholders in developing an overall access and benefit-sharing strategy, and in identifying the steps involved in the process of obtaining access to genetic resources and benefit-sharing. More specifically, the guidelines are meant to assist Governments and stakeholders when developing legislative, administrative or policy measures on access and benefit-sharing and/or when negotiating contractual arrangements for access and benefit-sharing. The international regime on access and benefit-sharing A few months following the adoption of the guidelines, at the World Summit on Sustainable Development, Governments called for action to “negotiate within the framework of the Convention on Biological Diversity, bearing in mind the Bonn Guidelines, an international regime to promote and safeguard the fair and equitable sharing of benefits arising out of the utilization of genetic resources” (10).
An intergovernmental body (11), the Ad Hoc Open-ended Working Group on Access and Benefit-sharing, was given the mandate to negotiate and elaborate the international regime at the seventh meeting of the Conference of the Parties in February 2004. In carrying out its task, the Working Group is to consider the nature, scope and elements of such an international regime.
During the first two meetings of the Working Group as the negotiating body, discussions focused on the nature, scope and potential objectives of the international regime. Little discussion was carried out on the possible elements of the international regime.
At the eighth meeting of the Conference of the Parties, in 2006, the designation of co-chairs to lead the negotiation process and the establishment of 2010 as the deadline for the completion of the negotiations has given a new impetus to the negotiating process.
As decided by COP-8, two meetings of the Working Group will be held prior to COP -9 (12). It will continue its consideration of the possible elements of the international regime and further consider the nature, scope and objectives of the regime.
The co-chairs have invited Parties to focus on concrete options for an international regime. Although no agreement was reached on such options at the 5th meeting of the Working Group, on the basis of the discussions, the co-chairs identified potential areas of convergence, options, possible tools and concepts for clarification. The outcomes of these meetings will be considered by COP-9, in 2008
The negotiations of the international regime are at this point in time very polarized. At one end of the spectrum some countries advocate the need for a legally binding agreement to apply the principles of the Convention on access and benefit-sharing and prevent the misappropriation of genetic resources. At the other end of the spectrum, other countries argue that access and benefit-sharing provisions of the Convention are to be implemented at the national level and, therefore, priority should be given to the development of instruments to assist Parties and stakeholders in this task. At this stage of the process, the structure and content of the international regime remain unclear.
The challenge ahead is to reconcile these views by reaching consensus on the development of an international regime to the benefit of all stakeholders involved in access and benefit-sharing by providing a clear, simple, transparent framework for access and benefit-sharing, which provides legal certainty for both providers and users of genetic resources.
Valerie Normand is Programme Officer, Access & Benefit-sharing,
Secretariat of the Convention on Biological Diversity (CBD).
(1) Article 1 of the Convention.
(2) Article 3 and article 15 of the Convention.
(3) Article 15 paragraph 2.
(4) Article 15 paragraph 5.
(5) Article 15 paragraph 4.
(6) Article 15 paragraph 7.
(7) Article 16 paragraph 3.
(8) Article 19 paragraph 1.
(9) Article 19 paragraph 2.
(10) Paragraph 44(o) of the Plan of Implementation of the World Summit on Sustainable Development.
(11) The Ad Hoc Working Group on Access and Benefit-sharing was given the mandate to elaborate and negotiate the international regime in decision VII/19D of the Conference of the Parties.
(12) The first of these two meetings was held in Montreal, from 8 to 12 October 2007 and focused on the possible elements of the international regime. The second of these meetings is to be held in Geneva, Switzerland, from 21 to 25 January 2008.
