Paris, 03 Nov 2004
Prepared by the ICC Commission on Biosociety and Commission on Intellectual Property
The Conference of the Parties to the Convention on Biological Diversity (CBD) decided at its 7th meeting to elaborate and negotiate an international regime on access to genetic resources and benefit-sharing with the aim of adopting an instrument\instruments to effectively implement the [access and benefit sharing provisions] of the Convention and the three objectives of the Convention (COP 7, Decision 28). This decision was pursuant to direction from the 2002 World Summit on Sustainable Development. The development of this regime promises to have a significant impact on the evolutionary path from the pre-CBD era of relatively unfettered use of genetic resources to the post-CBD era characterized by bilateral and contractual agreements regarding such resources, subject to internationally agreed principles and practices.
The following paper describes the obligations in the CBD and highlights some of the considerations that will need to be kept in perspective as the countries advance this transition both within the CBD process and in related intergovernmental forums. It focuses particularly on complications to this transition that derive from the evolving patterns of use of genetic resources; on identifying those governmental and intergovernmental forums that will play a key role in the orderly transition to post-CBD processes; and on identifying some of the major issue areas that have arisen in those forums that will have to be addressed,
The paper also discusses some implications of the CBD provisions for other multi-lateral agreements, including the International Treaty for Plant Genetic Resources of the UN Food & Agriculture Organization, and the primary international forums responsible for intellectual property rights, the WTO Council on Trade Related Aspects of Intellectual Property Systems, and the World Intellectual Property Organization..Obligations in the CBD
The CBD entered into force in December of 1993, with the first meeting of the Conference of the Parties to the CBD in November of 1994. The Convention is far-reaching in its scope and mandates, but nowhere has it spawned a more fundamental change than in the realm of genetic resources1. Prior to CBD, many regarded such resources as part of the common heritage of all mankind. The CBD, however, refuted this view and confirmed that states have sovereign rights over their natural resources, and declared specifically with respect to genetic resources that authority to determine access to genetic resources rests with the national governments and is subject to national legislation (Article 15).
Importantly, the Convention also obliges Parties to endeavour to create conditions to facilitate access to genetic resources… and not to impose restrictions that run counter to the objectives of the Convention. That access shall be on mutually agreed terms and subject to prior informed consent of the [Party that is the country of origin or Party having acquired the resources in accordance with the Convention], unless otherwise determined by that Party. It further obligates all Parties to the Convention to take legislative, administrative or policy measures… 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 with the… Party providing such resources (all from Article 15).
Adding yet another layer, the Convention obligates each Party, subject to its national legislation, to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities… and promote their wider application with the approval and involvement of the holders of… and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices (Article 8).
Related to the above changes is the further mandate recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, and obligating Parties to cooperate … to ensure that such rights are supportive of and do not run counter to its objectives (Article 16).
Complications in implementing these obligations
The "conceptual model" upon which the obligations were based was one of a linear flow of genetic resources beginning with "bioprospecting" to extract them from their in-situ state, following negotiation of mutually agreed terms with the sovereign state and after consultation with the concerned indigenous and local communities. The extracting agent develops a commercial product based upon the extracted resource with some R&D investment, and then shares the proceeds from that product according to the agreed arrangements. It is also evident from CBD discussions that there is a "reference case" that many delegates seem to have in mind as they consider the access and benefit sharing (ABS) elements of the CBD. The case that seems to drive much of the thinking is the patented pharmaceutical product based largely upon therapeutic properties extracted from genetic resources, identified through traditional knowledge of these properties, and that yields billions of dollars in profits. Unfortunately, both the conceptual model and this reference case are exceptions to the normal methods of accessing genetic resources and the normal result of the use of those resources. Their persistence in the perspective of many CBD participants sustains misconceptions that have profound implications in meeting obligations under the CBD.