Biodiversity and International Rules on Benefit Sharing

By: Kamalesh Adhikari
Published on SAWTEE's May 2008 Issue of Trade and Development E-newsletter.

In the course of commercial and sustainable use of biodiversity, the world has been facing a serious challenge of identifying measures that harmonize the diverse interests of both technology-rich developed countries and biodiversity-rich developing countries.  This is evident from the ongoing multilateral trade negotiations at the 'Council for TRIPS' under the World Trade Organization (WTO). 

The conflicting positions taken by WTO Members--noticeable from the corporate interest-driven agenda of developed countries and the community interest-driven agenda of developing countries--have complicated the negotiation process of the review of Article 27.3 (b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which deals with patentability options.  As a result, WTO Members are yet to come to consensus on how this Article of the multilateral agreement should be amended.
 
In particular, developing countries consider that TRIPS safeguards the interests of scientists, commercial breeders and multinational seed and pharmaceutical companies without any recognition to the need to protect the rights of local, indigenous and farming communities such as in relation to biopiracy. They emphasize that TRIPS must require intellectual property applicants to meet the 'disclosure requirement' so that biopiracy is discouraged, and countries and communities providing resources and knowledge benefit from the commercial use of their biodiversity and related knowledge.

In this respect, these countries want TRIPS to be amended for reconciling it with the equity principles of the Convention on Biological Diversity (CBD) 1992, of which 191 countries are contracting parties, excluding the United States. CBD calls on its parties to undertake domestic legal measures to protect biodiversity, promote the sustainable use of its components, and develop mechanisms to facilitate 'appropriately' the access to genetic resources and to ensure fair and equitable sharing of benefits arising out of the use of such resources.
 
Realizing the need to facilitate the implementation of access and benefit sharing (ABS) regime, CBD negotiators have made some important decisions. The contracting parties have been negotiating for the development of an international ABS regime, which they expect to form an important international legal basis to realize the three objectives of the Convention--biodiversity conservation, sustainable use of its components, and fair and equitable sharing of benefits arising out of the use of genetic resources. However, CBD negotiations too have been passing through a complicated process, due to the same reason of conflicting positions of technology-rich developed countries and biodiversity-rich developing countries.

At the recent ninth meeting of the Conference of Parties (COP 9) to CBD, which was held during 19-30 May 2008 in Bonn, Germany, governments from 191 countries discussed the issue of the international ABS regime.  Whether or not to make this regime a legally binding agreement was one of the major issues discussed in the meeting. While some countries were in favour of a legally binding regime, others opposed the initiative. Ultimately, delegates at Bonn agreed on a firm process towards the establishment of international ABS rules. The COP 9 produced a plan for the negotiations that sets out a clear roadmap leading up to 2010 and provides a short list of options as to which elements should be legally binding and which not.
 
Against this backdrop, it is important to see whether the future CBD negotiations will adequately identify the conditions and measures for facilitating judicious access to genetic resources and associated traditional knowledge. Given the growing support of developing countries for 'disclosure requirement', including at the WTO, if the international ABS regime does not incorporate 'disclosure requirement' and develop tools for effectively monitoring its compliance in the course of the implementation of ABS processes, the world will not make any progress towards achieving the important objectives of the Convention, mainly in relation to 'authorized access through prior informed consent' and 'fair and equitable sharing of benefits'.