Multiple ‘access and benefit sharing’ treaties create more confusion than clarity

T. V. Padma

T. V. Padma
South Asia regional coordinator, SciDev.Net


“Access and benefit sharing” (ABS) should, rightly, concern everyone. But what we seem to be witnessing are multiple ABS treaties that sometimes cause confusion.

For those engaged with biodiversity, there is the 2010 Nagoya Protocol on ABS. The Food and Agriculture Organization (FAO’s) Plant Treaty Multilateral System deals with exchange of food and forage crops; and the World Health Organization (WHO’s) Pandemic Influenza Preparedness Framework deals with sharing of bird flu samples, are two others.

“Any domestic regime will have to straddle through various, already existing ABS regimes, and international protocols involving ABS,” points out Shalini Bhutani, Campaign for Conservation ad Community Control over Biodiversity, a Delhi-based non government organisation.

Will biodiversity or agriculture treaties apply to plant and animal genetic resources? Credit: Shahnoor Habib Munmun, Wikipedia

Meanwhile at COP-11, I saw a paper by Norway’s Fridtjof Nansens Institutt (FNI), a foundation engaged in research on international environmental energy and energy resource management politics and law.

It says after the Nagoya Protocol, the Commission on Genetic Resources for Food and Agriculture (CGRFA) under the FAO started discussing ABS for six sectors – plants, aquaculture, farm animals, forestry, micro-organisms and invertebrates; and ABS for plants outside the FAO’s multilateral system.

The new round of FAO discussions are apparently explained in the context of food security, need for exchange of genetic resources and “maintain” global governance in agriculture.

The FNI paper points out that the new CGRFA discussions leave out a core issue – that it is the intellectual property rights and concentration of ownership of food production.

It says the key feature divergence between the Nagoya Protocol and the CGRFA is decoupling of benefits from both the provider and the resources given, which “highly political” as it has the “potential to undermine the whole global principle of sovereign rights over genetic resources.”

Detaching the benefits from the providers will give receiver the material without having any contractual obligations with anyone claiming for a share in benefits. So no user of genetic resources for food and agriculture will be obliged to share benefits based on the specific use of the resource

Hopefully, the various agencies will not work at cross-purposes – but  something tells me they will.

This blog post is part of our coverage on COP 11 Convention on Biological Diversity — which takes place 8–19 October 2012. 

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One Response to Multiple ‘access and benefit sharing’ treaties create more confusion than clarity

  1. danleskien says:

    The FAO Commission on Genetic Resources for Food and Agriculture and the issue of Access and Benefit-sharing

    I would like to thank the author for this article which, however, requires some clarification and explanation.

    As far as the work of the Commission on Genetic Resources for Food and Agriculture (CGRFA) on access and benefit-sharing (ABS) for genetic resources for food and agriculture (GRFA) is concerned, it is important to note that FAO and its Commission have a longstanding history of dealing with this issue. In 1983, the FAO Conference adopted the International Undertaking on Plant Genetic Resources for Food and Agriculture, which provided a policy and planning framework for the Commission with respect to plant genetic resources. During the following years, the Commission negotiated further resolutions that interpreted the International Undertaking, and in 1994, started revising the International Undertaking. As a result of this process, the FAO Conference in 2001 adopted the International Treaty on Plant Genetic Resources for Food and Agriculture (International Treaty), the first legally binding and fully operational international instrument for access and benefit-sharing for genetic resources.

    In the years following the adoption of the International Treaty, the Commission continued to follow the topic closely. Access and benefit-sharing remained high on the agenda of the Commission and of FAO. In 2009, when the negotiations of the Nagoya Protocol were still on going, the Commission prepared and the FAO Conference adopted a resolution addressing the negotiations.

    The Resolution (18/2009) stressed the essential role of
    GRFA in food security and sustainable development and recognized the interdependence of countries with respect to these resources and the dependence of the resources for their survival on active cooperation among all stakeholders involved in their conservation, breeding and sustainable utilization as well as benefit-sharing.

    The Resolution also invited negotiators of the Nagoya Protocol to: (1) take into account the special nature of agricultural biodiversity, in particular of genetic resources for food and agriculture, their distinctive features and problems needing distinctive solutions; (2) consider sectoral approaches which allow for differential treatment of different sectors or sub-sectors of genetic resources, different genetic resources for food and agriculture, different activities and purposes for which the activities are carried out; (3) to explore and assess options that allow for adequate flexibility to acknowledge and accommodate existing and future agreements relating to access and benefit-sharing developed in harmony with the Convention on Biological Diversity and (4) to work closely with the Commission on Genetic Resources and the Governing Body of the International Treaty regarding access and benefit-sharing in the area of genetic
    resources for food and agriculture in a mutually supportive manner in future years.

    An analysis of the Nagoya Protocol shows that FAO’s appeal to the negotiators of the Protocol did not go unheard. The Protocol explicitly recognizes the importance of genetic resources to
    food security, the special nature of agricultural biodiversity, its distinctive features and problems needing distinctive solutions, as well as the interdependence of all countries with regard to
    GRFA and the special nature and importance of these resources for achieving food security worldwide and for sustainable development of agriculture in the context of poverty alleviation and climate change. In this regard, the Protocol also acknowledges the fundamental role of the International Treaty and the Commission.

    The Protocol also requires its Parties to consider, in the development and implementation of their access and benefit-sharing legislation or regulatory requirements, the importance of GRFA and their special role for food security. In addition, they shall create conditions to promote and encourage research which contributes to the conservation and sustainable use of biological diversity, particularly in developing countries, including through simplified measures on access for non-commercial research purposes, taking into account the need to address a change of intent for such research. The Protocol also leaves ample room for other international agreements in the field of access and benefit-sharing. The Protocol does not prevent its Parties from developing and implementing other relevant international agreements, including other specialized access and benefit-sharing agreements, provided that they are supportive of and do not run counter to the objectives of the Convention and the Protocol. One of the instruments explicitly acknowledged by the Protocol is the International Treaty developed in harmony with the Convention.

    Thus, the Nagoya Protocol seems to provide the flexibility the
    FAO Conference may have had in mind when it invited the negotiators of the Protocol to explore and assess options that allow for adequate flexibility to acknowledge and accommodate
    existing and future agreements relating to access and benefit-sharing.

    The Commission’s work on ABS for GRFA was and is not intended to and neither did nor does it undermine the Nagoya Protocol. It is intended and hopefully will assist countries in implementing the Protocol in a way that accommodates the needs of breeders and researchers who exchange GRFA and who depend on access to these crucial resources. Some of the features of GRFA an ABS law needs to accommodate include: (1) the importance of international exchange of GRFA to the functioning of the food and agriculture sector; (2) the high volume of international exchanges of germplasm; (3) the interdependence of countries with regard to GRFA; (4) the incremental nature of the innovation process; (5) the diversity of stakeholders, users and providers of GRFA. These features indicate that bilateral ABS contracts concluded on a case-by-case basis, as envisioned by the Nagoya Protocol, might not always be the most attractive option to agree on an exchange of GRFA. But the Protocol itself recognizes this and points to a number of things that can be done about this problem, e.g. the development of standard and model clauses.

    The Commission’s work also does not undermine or question the national sovereignty of countries over their natural, including genetic resources. Systems like the “Multilateral System of Access and Benefit-sharing” which forms part of the International Treaty and facilitates, through standardization, access and benefit-sharing for genetic resources of 64 of our most important crops, do not question or undermine the principle of national sovereignty – joining as a country such a system is an expression of this sovereignty. If countries join the International Treaty (or any other ABS agreement) and thus commit themselves to provide specific genetic resources under specific access and benefit-sharing conditions, rather than under bilateral contracts negotiated on a case-by-case basis, they are not giving up their national sovereignty, they are making use of it.

    Dan Leskien,
    Secretariat of the Commission on Genetic Resources for Food and Agriculture
    Food and Agriculture Organization of the United Nations

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