Paris, 18 Sep 2006
There are many different types of genetic resources used by many different types of institutes and industries for many different purposes. Further, these genetic resources have been continuously exchanged, altered and improved. Genetic resources have an enormous range of uses: a few of these, from two important fields, are illustrated below.
Increased food production over the last half-century owes much to innovations achieved through plant breeding by recombining existing resources.
In major crop species, a high to very high percentage of genetic resources has been freely exchanged and intermingled over the ages and over nearly all countries in the world. The resulting plant varieties are based upon multiple accessions: in general, only those accessions used by formal breeders in the last several decades have specific documented origins. Ultimately these varieties result from the screening of thousands of recombinations of genetic material.
A wide variety of biological materials is used in biomedical research. These materials range from human materials, through non-human materials found in humans (such as bacteria and viruses), through animal and plant biological materials. Some materials are indigenous and unique: most are staple commercial products obtained through ordinary commercial channels.
Consideration of whether there should be a Certificate - and, if so, what it should be, how it should operate and its legal effects - must take account of reality: numerous and diverse uses and continuous intermingling of genetic resources in the past and at present. Any benefits of using a Certificate must be weighed against the practical impact of such a certificate on the real world use of genetic resources, the conservation of those resources and their sustainable use. ICC welcomes the creation of a Group of Technical Experts to consider these issues and to clarify what role any Certificate might play in the International ABS Regime within the CBD. The widest consultation is essential. We look forward to participating in these discussions as they progress.
We give below an overview of issues that should be considered in the Group of Technical Experts on the Certificate. We note that the mandate for the discussions explicitly states that the desirability of any certification scheme is not to be pre-judged. We should therefore make clear that ICC is as yet far from convinced that Certificates are either useful or practical, whether applying universally or only in some technical areas. Accordingly ICC expects to make further comments if more specific proposals are developed.
A certificate is a tool rather than a goal
The concept of a Certificate as proposed in the CBD context is as a standard document or system of proof of conformity to access and benefit-sharing obligations between a provider of genetic resources and the recipient of those resources.
A Certificate is a tool that may be useful to reach a desired goal. However, what exactly is the goal intended? Is the Certificate for genetic resources "in the form received", does it apply to the presence of components or even to derivatives based upon (or even on knowledge from) the material accessed? Is the Certificate linked to a product, either original or final, or to a process? Or is it linked to traceability, benefit-sharing or to trade? Until the goal is precisely defined, questions such as these which relate to the scope of the scheme cannot properly be addressed.
Answering these questions also involves identifying with precision what practical problems exist, how frequently they arise and the nature and extent of their consequences. Evidence as to the need for any certificate is vital. The report 'UNEP/CBD/WG-ABS/4/INF/6' analysed for example claims of "misappropriation of genetic resources" and concluded that many of the claims of biopiracy are disagreements arising out of uncertainties about ABS requirements. A certificate will not help this situation.
Defining the scope of the Certificate
Any certification scheme for genetic resources must take into account that they are not static and very broadly defined.
- Genetic resources are sometimes uniquely available from certain countries only, sometimes widely available commodities or staple commercial products.
- Genetic resources often have considerable "genetic overlap" between accessions or even complete duplication between different origins due to extensive interchange over the ages; this makes the value of any Certificate (whatever it certifies) questionable.
- Genetic resources are acquired for many different purposes by many different groups: ranging from those whose sole interest is to trade, to industrial users, to academic institutions, to conservation bodies etc.
- Genetic resources are used in many different ways by different users. They may be used as items of trade, as products into which research is conducted for commercial or academic purposes, in foods, etc.
- Genetic resources are changing continuously. For example, in plant breeding, during genetic recombination the specific identity of each original accession is lost (the accession is never exploited "in the form received"). To maintain the link with a Certificate, a formal "tracking system" during breeding and development would be needed. This could be a heavy burden on some smaller researchers.
- There are many different types of derivatives from genetic resources ranging from some pharmaceuticals through cosmetics through food products such as bread and wine. Sometimes, derivatives may contain no genetic resources or indeed biological materials; and the final product may be far removed (in function, structure and time) from the original genetic resource.
The value-creation chain from genetic resources to a final product can therefore involve a number of diverse steps and players; many of the steps and players are invisible to third parties and, indeed, invisible to others participating in the value-creation chain.
The number of transactions involving genetic resources – including legal transactions (trading) and functional transactions (use) – may run into millions every day. If derivatives (however defined) are included, the numbers of transactions are multiplied. Indeed, every time a loaf of bread or bottle of wine is purchased, a legal transaction occurs using a derivative of genetic resources. We illustrate this below with examples from two sectors only.
Submission of ICC to the CBD Secretariat pursuant to Decision VIII/4 paragraph 1 regarding the form, intent and functioning of an internationally recognized Certificate, including its practicality, feasibility and costs
Prepared by the Commission on Intellectual Property
Note: In the following paper, the term 'Certificate' is used in place of "certificate of origin/source/legal provenance". This is simply for convenience, and is not intended to preempt any decisions about what any certificate should certify, or what it should be called.
International Chamber of Commerce ,
The World Business Organization
International Chamber of Commerce , The World Business Organization