The adoption and entry into force of the CBD has changed the context for all those using or potentially interested in using genetic resources. It is therefore not surprising that actual and potential providers and users of genetic resources have confronted governments promoting the implementation of the Convention’s provisions on ABS with a range of concerns: definitions are regarded as too vague, existing access frameworks as overly burdensome, decisions taken by national authorities appear unreliable, existing mechanisms to support compliance with user obligations as insufficient to generate confidence with providers, etc. Some of these concerns have been reinforced by highly politicised and symbolic discourses on ‘biopiracy’ and the misappropriation of traditional knowledge associated with genetic resources and the alleged inadequacy of the current patent systems to prevent the granting of ‘bad patents’.
Back on track The adoption of the Bonn Guidelines proved insufficient to take some political heat out of the ABS debate. Between COP-7 and COP-8, the ABS negotiations stalled over a few ‘hot’ political issues, such as the nature of the international regime, potential disclosure requirements in patent applications and issues related to traditional knowledge. This reinforced rather than helped to overcome existing differences. COP-8 in Brazil, in March 2006, was important to put the ABS negotiations back on track. The commitment to intensify and move the negotiations forward is shown by the establishment of a 2010-deadline as well as by the designation of Fernando Casas from Colombia and Timothy Hodges from Canada as permanent Co-Chairs of the ABS working group.
European proposals The EU supported the ABS decision at COP-8, fully conscious that the 2010 deadline would force the European Community and its 27 Member States to rapidly develop and politically agree on concrete proposals in response to key concerns of its partners. To facilitate this discussion, the European Commission has, since COP-8, convened a series of expert meetings with ABS stakeholders and government negotiators. These meetings have been instrumental for moving beyond symbolic discussions and for better understanding the interests of stakeholders as well as practical challenges in the development and implementation of concrete ABS arrangements between specific providers and specific users of genetic resources. EU stakeholders are both major providers and users of genetic resources and do indeed share many interests in relation to ABS. This includes interests in legal certainty, enhancing transparency about transactions of genetic resources and associated rights and obligations as well as lowering transaction costs. Furthermore, providers and users face specific and additional challenges if they are located in different jurisdictions.
In the run-up to and during WG-ABS-5, the EU suggested a range of specific elements for inclusion in the further negotiation (1). Most importantly, the EU has identified the need for the ABS negotiations to explicitly address the link between national access frameworks and discussions on additional measures to support compliance with ABS requirements. In this respect, the EU proposes developing international standards on national access law and practice and suggests essential elements of such standards. It also proposes that the further negotiations consider a range of additional and more specific international obligations of all Parties to support compliance with ABS requirements vis à vis Parties whose national access frameworks meet international access standards.
The EU proposes, for instance, developing an international definition of what constitutes “misappropriation” of genetic resources, building on ABS-related codes of conduct and a more formal engagement with public research funding agencies. It also suggests initiating work to develop menus of model clauses for potential inclusion in material transfer agreements and makes the case that the ABS negotiations need to reflect and build on existing technological possibilities to ensure that rules and instruments of the international ABS regime are crafted in a way that maximises the utility of modern IT-tools to ABS governance.
At COP-8, the 2010 deadline might have seemed far away. At the time of writing this article, shortly before WG-ABS-6, it seems already very close. Few months remain until COP-9. To meet the 2010 deadline, it is essential that COP-9 identifies the main components of the international ABS regime that will be subject to technical, text-based negotiations. The EU has come a long way in developing its own perspective on the potential ingredients of a COP-9 decision on ABS. Clearly, its proposals will not be sufficient to bridge existing differences on some of the fundamental political issues such as disclosure or misappropriation of traditional knowledge. One should expect, however, that the EU’s proposals for the further ABS negotiations will help to identify common ground and potential areas of consensus that have for quite some time been clouded by a largely symbolic discourse over ‘hot’ political issues.
Business perceptions Business perceives the ABS negotiations mainly from a ‘user perspective’. Potential outcomes are often characterised as ‘over-regulating’ activities that currently function well. There seems to be little appreciation of the potential of this negotiation to significantly improve the operative environment of companies interested in using genetic resources. With the ABS negotiations moving forward, however, it is less and less rational to remain sitting on the fence, hoping that the negotiations might eventually break down.
The EU works towards a COP-9 decision on ABS that identifies the main components of the international ABS regime. These components should then be subject to technical, text-based negotiations with the objective to complete negotiations on operational text at the earliest possible time before COP-10. At this point, there is still much appreciation, at least within the EU, for fresh, practical and pragmatic ideas that should be considered in the further negotiation of the international ABS regime as well as for constructive criticism. Responsible governments and their negotiators, tasked with balancing the interests of providers and users of genetic resources will make every effort to listen and understand. This window of opportunity might close already in early 2009. It will be too late to bring forward new ideas when negotiations have moved to a technical, text-based modus. Time has come for business to develop a positive agenda on access and benefit-sharing.
Matthias Buck is Policy Officer for International Biodiversity and Biosafety in the International Environmental Agreements and Trade Unit of
the European Commission’s Environment Directorate-General.
(1) The main suggestions made in the run-up to and during WG-ABS-5 have been formally endorsed by the Council of the European Union on 28 June 2007. They are explained in more detail in the EU’s submission of 28 November 2007 on concrete options on issues on the agenda of WG-ABS-5 and WG-ABS-6 (www.cbd.int/doc/meeting.aspx?mtg=ABSWG-05&tab=1).
The views expressed in this article are those of the author and do not necessarily reflect those of the European Commission.
