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[ Biological diversity ]

Tough talks

“ABS” stands for access and benefit sharing, and is shorthand for access to genetic resources and the fair and equitable sharing of the benefits arising out of their utilisation. In essence, this is the third and final objective of the Convention of Biological Diversity (CBD), with the conservation and the sustainable use of biodiversity being the first two. While the notion may seem straightforward, it has been very difficult to implement. In the run up to the 2010 deadline for agreeing an international ABS regime, this issue will be among the most hotly debated at the CBD Conference of the Parties in Bonn in May.

[ By Linda Siegele ]

Along with the Framework Convention on Climate Change and the Convention to Combat Desertification, the text of the CBD was agreed by parties at the United Nations Conference on Environment and Development (UNCED), held in Rio de Janeiro in 1992. The “Earth Summit” was unprecedented in terms of size, scope and lasting influence, but it was not free of conflict. Access and benefit sharing was one point of contention, exemplifying the overarching divide between developed and developing countries.

The agreement finally reached on ABS has been called the “grand bargain”. Basically, developing countries agreed to provide access to their genetic resources in return for a share in the economic benefits derived from developed-country-use of those resources. In practical terms, however, implementing this bargain has been difficult.

At first glance the notion of access to genetic resources and benefit sharing appears simple. In fact, it is a densely packed collection of concepts. The Convention defines genetic resources as “genetic material of actual or potential value”, and genetic material as “any material of plant, animal, microbial or other origin containing functional units of heredity”. Combined, these definitions imply not only that genetic resources have some form of commercial value, but also that this value lies in their component hereditary units, or DNA. Extracting DNA or other similar hereditary material generally requires a high level of technological expertise.


A diverse set of stakeholders

What is perhaps the CBD’s most significant principle is found in Article 3, which provides that states have the sovereign right to exploit their own resources. Nonetheless, parties to the CBD are required to protect and encourage customary uses of these resources in accordance with traditional practices; and the preamble to the CBD ties this obligation directly to indigenous and local communities. Accordingly, stakeholders in the “grand bargain” include:
– sovereign states (developed and developing countries alike),
– indigenous peoples and local communities, and
– the biotech industry.

In keeping with the principle of state sovereignty over natural resources, the CBD gives states the ultimate authority to grant access to genetic resources. Access is to be based on mutually agreed terms, subject to the prior informed consent of the party providing access. Parties to the CBD have recognised that the involvement of relevant stakeholders, including indigenous and local communities, is essential to the proper working of an ABS regime.

Benefits that arise from the use of the genetic resources must also be shared on mutually agreed terms. Again, the relevant stakeholders need to be identified and involved. “Benefits”, moreover, are not only understood in commercial terms. Biotech research and participation in such research are also considered benefits. Therefore, developing countries that provide access to genetic resources must in turn be given access to the technologies needed to make use of these resources, even where such technology is subject to patents and other intellectual property rights. It remains unclear exactly who is to be given such access. Indigenous and local-community groups have been very active in the negotiation process so far, but in the end, decisions will be made by the national governments (see below).

In 2001, the ABS working group, which was set up by the CBD parties, produced a set of voluntary guidelines for “establishing legislative, administrative and policy measures on ABS”. These non-binding provisions are called the Bonn Guidelines after the city where they were developed. These guidelines aimed at national governments were adopted by the parties in 2002.

Later that year, at the World Summit on Sustainable Development (WSSD) in Johannesburg, participating countries lifted ABS to a matter for international resolution. They agreed to negotiate “an international regime to promote and safeguard the fair and equitable sharing of benefits arising out of the utilisation of genetic resources”.

The CBD parties gave themselves until 2010 to comply with the WSSD mandate; but to date, very little progress has been made. For the most part, the parties have lined up along the same North-South divide that existed in 1992. Developed-country parties are leaning toward a non-binding regime, emphasising the principles of intellectual-property and contract. Developingcountry parties, on the other hand, are adamant that the regime consist of a legally-binding internationally agreed protocol, which includes provision for a comprehensive monitoring system.


Conclusion

In the ABS negotiations much more is at stake than resolving an argument over money and influence between sovereign states. Other relevant issues include
– the rights of indigenous peoples over genetic material and associated knowledge sourced from their traditional lands,
– the question of whether genetic resources and associated traditional knowledge can be patented and privately owned,
– the practicality of developing a global framework for regulating access to genetic resources and benefit sharing, taking into account different categories of genetic resources with different uses.

Tracing the true origin of genetic resources and monitoring their trajectory from source to ultimate utilisation requires a high level of technical sophistication and coordination. It remains to be seen whether a regulatory regime that must define at a given point in time its nature, scope and objectives can be flexible enough to keep up with the rapidity of technological change.

Ultimately, the ABS negotiations are a test of international law and its ability to effectively address the multi-faceted complexity of global issues. The experience gained in the ABS negotiating process could provide valuable lessons for the international community as it is tasked with resolving other global environmental issues.

Protecting indigenous peoples in biodiversity negotiations

[ By Le`a Malia Kanehe ]

For decades, the biotech industry has claimed patents over our seeds, our medicines and applications of our ancestral knowledge related to the use of the flora and fauna from our traditional territories, and packaged all of these for sale on the global market for pharmaceutical, cosmetic, chemical, industrial and other uses. Proponents of the Convention on Biological Diversity’s proposed international regime on access and benefit sharing (ABS) is touting this legal regime as a measure to end this biopiracy.

However, as an Indigenous lawyer who is familiar with the issues, I consider the proposed regime as just another application of western law to legitimise theft from Indigenous peoples and local communities. The governments are negotiating the rules for the legalised hunt for non-human genetic material and the traditional knowledge of Indigenous peoples and local communities. In this context, it makes sense to speak of “biocolonialism” – the extension of the forces of colonisation to the biologicalresources that Indigenous peoples have nurtured over millennia.

At COP 9 in Bonn, CBD, Parties will have several optional texts and measures before them. They relate to the objectives, scope, nature and elements of the regime that is being designed and is supposed to come into force after COP10 in 2010. Developed and developing countries disagree on most issues under negotiation.

One principle they agree on is that states hold sovereignty over genetic resources within their boundaries. Accordingly, they agree that the CBD regime must vest states with the right to determine access to such resources.

However, this consensus shows their common failure to fully recognise and protect the rights of Indigenous peoples to legal ownership over our traditional territories and the related decision-making power to determine access to and use of genetic material that has originated from our lands and waters.

This issue is of particular importance to the Pacific region where many countries’ legal systems recognise customary title or collective land ownership by Indigenous peoples. A 2004 United Nations University study reports that “in the Pacific region ... upwards of 80 % of land and a significant portion of coastal and marine areas are subject to traditional tenure rights. Likewise, in this region, rights over both biological and genetic resources are subject to customary law rights. It can be seen, therefore that under such circumstances ABS issues must be governed with due respect for and compliance with customary law.”

Tremendous progress would be made if the CBD parties would simply acknowledge the UN Declaration on the Rights of Indigenous Peoples adopted by the UN General Assembly in September 2007 as the international minimum standard. Although some of the more Indigenous-supportive states have focused on integrating the provisions in Article 31 related to our rights to traditional knowledge and genetic resources in the ABS regime, none of them want to address Article 26, which states, in relevant part:
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources… Recognising this provision would of mean a complete overhaul to the principle of state sovereignty over genetic resources that serves as a foundation to the CBD itself.

Quite clearly, the process in the CBD is a negotiation about genes and traditional knowledge. In many cases, these genes arise from our territories, lands and waters; and the knowledge related to those genes is ours. Therefore, any decision making about the rules to regulate the buying and selling of those genes and Indigenous knowledge must include our right to make our own decisions about what will be the best path for our future generations based on our own cultural and spiritual beliefs and related customary and/or codified laws.

D+C, 2008/05, Focus, Page 197-199