Stemming biopiracy in the third world

Prospects seem encouraging for a new international agreement to prevent biopiracy and to ensure fair and equitable benefit sharing from the use of biological resources and associated traditional knowledge. October 2010 is the target for this agreement to be adopted by governments that are Parties to the United Nations Convention on Biological Diversity (CBD), when the governments gather in Nagoya, Japan for the biennial Conference of the Parties.

By CHEE YOKE LING

Issue No. 231/232 (Nov/Dec 2009)

DEVELOPING countries hold most of the planet's biodiversity and their indigenous peoples and local communities hold, nurture and use a wealth of traditional knowledge related to biodiversity. Governments and many organisations representing indigenous peoples' rights want a legally binding agreement to correct injustices and stop the misappropriation (commonly called 'biopiracy') of those biological resources and associated traditional knowledge.

Negotiations finally took off in 2005 with the CBD's Ad Hoc Open-ended Working Group on Access and Benefit-sharing (ABS Working Group) tasked to negotiate an 'international regime on access and benefit sharing'. This came after years of insistence by developing countries because of the continued lack of implementation of the CBD's third objective, i.e. the fair and equitable sharing of benefits arising from the use of biological resources (see Box 1). On the contrary, concerns over biopiracy have grown since the CBD entered into force in 1994 (see Box 2 and related articles on potential biopiracy cases in this issue of TWR).

Developing countries argue that regardless of the strength of their national ABS laws, once biological material and associated knowledge leave their countries and are used (from research to commercialisation) in other countries, they face daunting obstacles in enforcing their rights. In reality most countries still do not have national laws, rendering them even more vulnerable to biopiracy.

If a Protocol on Access and Benefit Sharing does finally materialise, this would be the culmination of almost 15 years of persistent demands by developing countries, in the face of years of strong resistance and even rejection by most developed countries and big business interests such as the pharmaceutical and biotechnology industries.

Optimism sparked when there was a discernible shift in the momentum towards a possible Protocol when CBD Parties in the ABS Working Group ended a week's meeting (9-15 November 2009) in Montreal with one consolidated text that will be negotiated and hopefully finalised in March 2010 in Cartagena, Colombia before the result is sent on to the 10th meeting of the Conference of the Parties (COP) in Nagoya.

There was a growing sense of urgency in Montreal as there will be only one more week of formal negotiations in March 2010 before the COP meets later in October to formally adopt the agreement. Though there is still no agreement on practically all the key components, there is one single document now that contains the makings of an agreement. There is no full agreement on whether it will be one legally binding international agreement but more developed countries signalled a willingness to have a Protocol when they met in Montreal. (A Protocol is a legally binding agreement, usually adopted as a separate agreement under a broader 'parent' international treaty, in this case the CBD.)

The Co-Chairs of the negotiating process Fernando Casas (Colombia) and Tim Hodges (Canada) in a joint statement at the closing plenary session said that there was a 'preponderant understanding' in the Working Group that the 'negotiations of the international regime aim at finalising a draft protocol under the CBD'.

For many years developed countries have been resistant to the calls of developing countries for a single legally binding international agreement to deal with access and benefit sharing. Their preferences ranged from voluntary guidelines to an international regime comprising legally binding and non-legally binding instruments (but not a single agreement).

It was thus noteworthy that Japan, initially among the most resistant, said in the closing plenary session that it was 'very supportive of the Co-Chairs' assessment of the preponderance of views' in the Working Group. The head of delegation, Masayoshi Mizuno, said that, 'This Working Group will continuously and relentlessly aim to adopt a protocol in Japan.' (Japan will host the COP meeting that is scheduled to adopt the final outcome of the negotiations, and many hope that the new government will adopt a more progressive position on a 'Nagoya Protocol'.)

He also clarified his statement at the opening plenary (9 November) on this item, where he said Japan would not exclude a legally binding regime and that the nature would be determined after discussions on the substance. Pending that discussion Japan was not in a position to accept a legally binding international regime 'at this stage', indicating that it was prepared to do so under certain conditions.

Most delegates at the meeting regarded this as a significant shift in Japan's position.

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