Index

Expert Opinion: Protecting Genetic Resources

By Manuel Ruiz

Since 2002, the Group of Like-minded Megadiverse Countries has been calling for and promoting the establishment of an international regime on access to genetic resources and benefit-sharing (ABS). In its founding declaration at the World Trade Organization (WTO) Ministerial Conference in Cancun in 2003, and statements thereafter, the Group has repeatedly called for the establishment of an international regime on ABS. As a result, with the backing of the political mandate of the Convention on Biological Diversity’s (CBD), the Ad Hoc Expert Working Group on ABS has started the process of creating an international ABS regime.

What is the nature of the international regime on ABS and, more importantly, does it need to be created? The answer to these questions is not as straightforward as the enthusiasm among certain countries would suggest.

Firstly, it is difficult to obviate the fact that an international regime on ABS already exists in practice. A “regime” is defined as a set of international, regional and national laws, policies instruments, rules, principles and practices which govern a certain issue. One could argue, then, that an ABS regime already exists in the form of the complex interrelations, overlap and contradictions of a host of international instruments— the UN Food and Agriculture Organization’s (FAO) International Treaty on Plant Genetic Resources for Food and Agriculture, the CBD and the Bonn Guidelines on ABS, Decision 391 of the Andean Community on ABS, the Organization of African Unity (OAU) model law, ABS institutional policies and codes of conduct, and more.

As a second comment, a different issue is whether this regime operates in an effective way and takes into account the needs and interests of (especially) developing countries and countries of origin. From preliminary, almost anecdotal information, one could conclude that this regime is still in the process of becoming fully functional and achieving an equitable balance of interests among countries. If this is so, then the question is not whether we need to negotiate an international regime (which brings us dangerously closer to negotiating yet another international ABS instrument, which will almost certainly look like the Bonn Guidelines, albeit of a binding nature), but how do we ensure that the regime currently in place becomes operational.

Thirdly, if this is so, it is then important to identify where there may be gaps and problems in the existing international ABS regime and how they can be overcome and solved. One area is the need to establish a necessary linkage between ABS instruments and intellectual property rights (IPR) regimes—especially in the case of patents, plant breeders’ rights and plant variety protection. Whether the gap implies a need for new patentability criteria, new disclosure requirements or certificates indicating legal provenance and origin prior to granting IPRs, these issues have all been part of considerable debates in the CBD, the World Intellectual Property Organization, the Council for Trade-related Aspects of Intellectual Property Rights, FAO and others. This is certainly an area where the current international ABS regime is missing necessary commitments and even differentiated obligations among countries. This gap in the ABS regime could be overcome through a precise decision, a mandate to amend national legislation, or, even, a protocol or annex to the CBD, as well as developing strong and coherent negotiating positions in the diverse fora in which ABS-related matters are being discussed.

Fourthly, given the current push to modify IPR standards worldwide—to satisfy industrialized countries’, and especially U.S., interests— there is a need to counter balance this pressure by either precluding the standardization of patent, plant breeders’ rights or plant variety protection rules (which should really respond to countries’ scientific, social, industrial and economic needs) as the ideal negotiating position or ensuring that biodiversity-related concerns are recognized and specifically addressed in new legislative instruments, whether at the national or international levels. Two examples of the way in which developing countries have creatively addressed this situation are India’s Plant Varieties and Farmers Rights Act (2001) and the Andean Community Decision 486 on Intellectual Property (2000), containing provisions on disclosure and ensuring legal provenance of resources and traditional knowledge (TK) prior to the granting of patents. By allowing for the protection of local innovation through farmers’ rights incorporated in the plant variety protection regime and by requiring disclosure of origin and legal provenance of resources and TK respectively, both these instruments contribute to a creative interpretation of the TRIPS Agreement, the practical use of its flexibilities and the establishment of positive synergies between the IPR and ABS systems.

Finally, the key to the success of the CBD is not to overburden its already impossible agenda. Much can be achieved simply by building upon the potentially useful and practical options available—for example, linking the ABS and IPR regimes. Moreover, after more than ten years, it is time to implement and apply existing tools and instruments to ensure the realization of the CBD’s objectives. It is often said that international instruments are naturally cumbersome, certainly complex, and tend to be slow in becoming operational. To a considerable extent this is true. To overcome this tendency closer cooperation needs to be undertaken between scientists, legal experts and policy-makers.

Manuel Ruiz, from Peru, is Director of the Programme on International Affairs and Biodiversity of the Peruvian Society for Environmental Law (SPDA).