Third World Network
ABS WG4 BRIEFING PAPER
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SOME KEY ISSUES FOR THE NEGOTIATIONS OF
THE INTERNATIONAL REGIME ON ACCESS AND BENEFIT SHARING
1.
The mandate for the Ad Hoc Open-ended Working Group on Access and Benefit Sharing is clear, i.e.
to further elaborate and negotiate an international regime for adoption by the Parties to the Convention
on Biological Diversity.
Heads of States agreed at the 2002 World Summit on Sustainable Development to “negotiate ... an
international regime to promote and safeguard the fair and equitable sharing of benefits arising out of the
utilization of genetic resources”.
In 2004 the CBD Conference of Parties in Decision VII/19 D mandated the ABS WG to “elaborate and
negotiate the nature, scope and elements of an international regime on access and benefit-sharing with the aim
of adopting an instrument/instruments to effectively implement the provisions in Article 15 and Article 8(j)of
the Convention and the three objectives of the Convention”.
At the Bangkok meeting of the Working Group in February 2005, it was agreed that the ABS WG4’s task is
“further elaboration and negotiation by Parties” [UNEP/CBD/WG-ABS/3/7 Decision 3/1 para. 2]. The UN
General Assembly in December 2005 has reiterated the call “to continue ongoing efforts towards elaborating
and negotiating an international regime”.
This is THE one gap that needs to be filled to prevent biopiracy and to achieve the objectives of the
Convention on Biological Diversity. What is not needed is protracted “gaps anlaysis” of the matrix: as the
South African delegation aptly remarked at the Bangkok meeting, the Working Group cannot be responsible
for creating an “analysis paralysis”.
2.
Parties should no longer delay the important and urgent work that needs to be done. The outcome of
the ABS WG must be one legally binding international instrument, with its central focus being the fair and
equitable sharing of benefits from the sustainable use of biological resources and/or associated traditional
knowledge.
3.
It is time for the CBD to assert its primacy. While the World Intellectual Property Organisation
(WIPO) has provided much food for thought, the current fundamental thrust of WIPO will eventually lead to
proprietary monopolistic systems. The ABS Working Group and the Article 8(j) Working Group should now
develop further the thinking and elaboration of sui generis options, while providing an understanding of, and
approach to, intellectual property from the CBD perspective. The guiding provision should be Article 16(5)
of the CBD which requires Parties to ensure that IPRs “support and do not run counter to” the CBD
objectives.
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4.
At the same time, governments at the World Trade Organisation’s TRIPS Council should seriously
work towards:
i)
the completion of the review of Article 27.3(b) to define the scope of patentability that would exclude
the patenting of plants, animals, microorganisms and parts thereof as well as human genetic material. At the
very least the rights of Members to exclude patentability of these materials, including some derivatives, must
be maintained.
ii)
where patentability of certain derivatives or products are permitted, the amendment of the TRIPS
Agreement to include the 3 disclosure requirements in patent applications relating to genetic resources
and/or associated traditional knowledge. These are disclosure of: country/source of origin, evidence of prior
informed consent under national law, evidence of a fair and equitable benefit sharing arrangements under
national law. The 6th Ministerial Conference of the WTO in December 2005 requested the WTO Director
General “to intensify his consultative process” on the relationship between TRIPS and the CBD. “The
Director-General shall report to each regular meeting of the [Trade Negotiation Committee] and the General
Council. The Council shall review progress and take any appropriate action no later than 31 July 2006”.
5.
The linkages between the work of the ABS Working Group and the Article 8(j) Working Group
are one central component of the negotiations of the international instrument under the CBD. Prior informed
consent is the foundation for matters relating to access to biological resources, both at the level of the State
and of indigenous peoples and local communities. An essential feature of PIC is the right to say No. Benefitsharing rules and arrangements must also ensure the protection of the rights of indigenous peoples and
local communities.
6.
The scope of the international regime should include all biological resources (parts thereof, gene
sequences) and the information relating to or obtained from such biological resources; derivatives; and/or
traditional knowledge associated with biological resources and/or derivatives.
7.
The central focus of the international regime must be fair and equitable benefit sharing, including
the establishment of principles, standards and implementing mechanisms (international, regional and
national). Access is primarily a matter for national regulation, as clearly spelt out in Article 15(1) of the
CBD. Conditions for access in national regulatory systems include: a) conservation; b) sustainable use; c)
environmentally sound uses; d) article 8(j) and related provisions; e) benefit sharing. The CBD sets the legal
basis for “regulated access” and not “facilitated access” as demanded by a few Parties.
8.
While the international regime is being negotiated, the ABS Working Group should recommend that
the CBS Secretariat undertake work to set up a mechanism for the monitoring and documenting biopiracy.
This can include established and possible cases of the misappropriation of biological resources and/or
associated traditional knowledge. This can build on initiatives started by some national governments (e.g. the
Brazilian congressional committee on biopiracy; research and documentation by the Government of India),
research institutions and non-governmental organisations (e.g. the US-based Edmonds Institute; the successful
challenge to a number of patents on the uses of neem given by the European Patent Office, by the
International Federation of Organic Agriculture Movements, the Research Foundation for Science,
Technology and Ecology of India and the Greens/EFA in the European Parliament).
Such biopiracy acts can include the illegal or inappropriate use of patents (such as “broad” patents that violate
the basic tenets of patent law) and other intellectual property claims, as well as misappropriation outside the
field of IPRs.
9.
The intensification of bioprospecting for microorganisms and their potential uses within and outside
national territories, including from marine and deep seabed resources requires urgent attention. More
information is also needed on the role of intermediary parties involved in bioprospecting of all biological
resources and/or associated traditional knowledge. The gathering and documentation of such information will
be very helpful for the international regime negotiations and for developing implementing tools and
mechanisms.
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