How might the operation of a global multilateral benefit-sharing mechanism co-exist with the underlying principles, objective and scope upon which the Nagoya Protocol is based?
Ms. Kathryn Garforth,
Secretariat of the Convention on Biological Diversity#5078
Secretariat of the Convention on Biological Diversity#5078
13 years ago
The first set of indicative and additional questions for round 2 of the online discussions on Article 10 of the Nagoya Protocol is as follows:
How might the operation of a global multilateral benefit-sharing mechanism co-exist with the underlying principles, objective and scope upon which the Nagoya Protocol is based?
- How to apply Art. 10 and 11 without causing harm to the principle of the sovereign right of states over their natural resources?
- How to ensure that a global multilateral benefit-sharing mechanism does not represent a disincentive for implementation of the bilateral system of the Protocol?
How might the operation of a global multilateral benefit-sharing mechanism co-exist with the underlying principles, objective and scope upon which the Nagoya Protocol is based?
- How to apply Art. 10 and 11 without causing harm to the principle of the sovereign right of states over their natural resources?
- How to ensure that a global multilateral benefit-sharing mechanism does not represent a disincentive for implementation of the bilateral system of the Protocol?
Dear all,
Thank you all for an interesting discussion in the first round.
I indeed see the link with how to understand 'genetic resources' as a core of the concepts in the CBD which is becoming challenging. One reason for this is perhaps a static understanding of what is a genetic resources: if genetic resource is to be determined at the point of time when access to the biological material where the GR happen, then very often the situation will be that biological material crosses a border without any PIC or MAT. If the GMBSM will cover all these situations, then the mechanism could create an incentive for users who later recognises that they are accessing the GR in that biological material. If determining whether something is a GR is determined at access, the definition in CBD art 2 basically will be determined by the intention of the one taking the biological resources cross borders. That would probably lead to a large number of art 10 situations.
If benefit sharing obligations generally were thought of as arsing when GR are utilised, the GMBSM could capture all situations where either the user cannot show a PIC or a MAT or proving that the GR were acquired outside the ABS system legally. In such a case, the GMBSM will interrelate as a positive incentive for users to either comply when taking biological material cross-border, or at a later stage when benefits starts to be created.
See also section 3 and 6 in the enclosed FNI Report.
If the GMBSM shall work on a mandatory basis, there is a clear need for specific and clear definition of the trigger points for when benefits shall be shared. The abscens of such, will lead to the set-up of a a system which does not create any sharing. Here the learning of the extremely narrow definition of trigger-situations in the International Treaty on Plant GR for Food and Agruculture needs to be learnt from so the triggers are more functionally defined in the GMBSM.
Thank you all for an interesting discussion in the first round.
I indeed see the link with how to understand 'genetic resources' as a core of the concepts in the CBD which is becoming challenging. One reason for this is perhaps a static understanding of what is a genetic resources: if genetic resource is to be determined at the point of time when access to the biological material where the GR happen, then very often the situation will be that biological material crosses a border without any PIC or MAT. If the GMBSM will cover all these situations, then the mechanism could create an incentive for users who later recognises that they are accessing the GR in that biological material. If determining whether something is a GR is determined at access, the definition in CBD art 2 basically will be determined by the intention of the one taking the biological resources cross borders. That would probably lead to a large number of art 10 situations.
If benefit sharing obligations generally were thought of as arsing when GR are utilised, the GMBSM could capture all situations where either the user cannot show a PIC or a MAT or proving that the GR were acquired outside the ABS system legally. In such a case, the GMBSM will interrelate as a positive incentive for users to either comply when taking biological material cross-border, or at a later stage when benefits starts to be created.
See also section 3 and 6 in the enclosed FNI Report.
If the GMBSM shall work on a mandatory basis, there is a clear need for specific and clear definition of the trigger points for when benefits shall be shared. The abscens of such, will lead to the set-up of a a system which does not create any sharing. Here the learning of the extremely narrow definition of trigger-situations in the International Treaty on Plant GR for Food and Agruculture needs to be learnt from so the triggers are more functionally defined in the GMBSM.
The Global Mechanism should have operating rules and procedures under a mandate from the Nagoya Protocol targets for the purpose of complementing.
---How to apply Art. 10 and 11 without causing harm to the principle of the sovereign right of states over their natural resources?---
International cooperation does not constitute a violation of the sovereignty of states, it is based on the sum of wills matching. Article 10 and 11 should be applied in a complementary and harmonious.
---How to ensure that a global multilateral benefit-sharing mechanism does not represent a disincentive for implementation of the bilateral system of the Protocol?---
With clear rules and under the commitments made at the Nagoya Protocol, ie no more than establish the obligations to those obtained in the Protocol.
Clear rules provide security and legal certainty to the parties.
---How to apply Art. 10 and 11 without causing harm to the principle of the sovereign right of states over their natural resources?---
International cooperation does not constitute a violation of the sovereignty of states, it is based on the sum of wills matching. Article 10 and 11 should be applied in a complementary and harmonious.
---How to ensure that a global multilateral benefit-sharing mechanism does not represent a disincentive for implementation of the bilateral system of the Protocol?---
With clear rules and under the commitments made at the Nagoya Protocol, ie no more than establish the obligations to those obtained in the Protocol.
Clear rules provide security and legal certainty to the parties.
“How to apply Art. 10 and 11 without causing harm to the principle of the sovereign right of states over their natural resources?”
A global multilateral benefit-sharing mechanism over natural information does not “cause harm to the principle of the sovereign right of states.” On the contrary, it would exercise the principle. The argument is not radical and has even penetrated the mainstream media. In a New York Times Opinion-Editorial “There are Two Ways to Look at Sovereignty,” Prof Jenny Martinez of the Stanford Law explains how any multilateral agreement can be considered an “exercise of sovereign power, not a diminution of it” (6 December 2012, http://www.nytimes.com/roomfordebate/2012/12/06/have-treaties-gone-out-of-style/with-un-treaties-there-are-two-ways-to-look-at-sovereignty).
In Round 1, Manuel Ruiz (#4835) and Pierre du Plessis (#5066) made the same point about exercises of sovereignty, which can also be found in the refereed literature (see Matthias Buck and Clare Hamilton, “The Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization to the Convention on Biological Diversity” (2011, Review of European Community & International Environmental Law, 20(1), 47–61).
“How to ensure that a global multilateral benefit-sharing mechanism does not represent a disincentive for implementation of the bilateral system of the Protocol?”
Any answer would take the Parties even farther down the wrong road. Applying the economics of information to natural information, we should be asking: “How to ensure that a global multilateral benefit-sharing mechanism will represent a disincentive for implementation of a bilateral system of the Protocol?”
A global multilateral benefit-sharing mechanism over natural information does not “cause harm to the principle of the sovereign right of states.” On the contrary, it would exercise the principle. The argument is not radical and has even penetrated the mainstream media. In a New York Times Opinion-Editorial “There are Two Ways to Look at Sovereignty,” Prof Jenny Martinez of the Stanford Law explains how any multilateral agreement can be considered an “exercise of sovereign power, not a diminution of it” (6 December 2012, http://www.nytimes.com/roomfordebate/2012/12/06/have-treaties-gone-out-of-style/with-un-treaties-there-are-two-ways-to-look-at-sovereignty).
In Round 1, Manuel Ruiz (#4835) and Pierre du Plessis (#5066) made the same point about exercises of sovereignty, which can also be found in the refereed literature (see Matthias Buck and Clare Hamilton, “The Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization to the Convention on Biological Diversity” (2011, Review of European Community & International Environmental Law, 20(1), 47–61).
“How to ensure that a global multilateral benefit-sharing mechanism does not represent a disincentive for implementation of the bilateral system of the Protocol?”
Any answer would take the Parties even farther down the wrong road. Applying the economics of information to natural information, we should be asking: “How to ensure that a global multilateral benefit-sharing mechanism will represent a disincentive for implementation of a bilateral system of the Protocol?”
- How to apply Art. 10 and 11 without causing harm to the principle of the sovereign right of states over their natural resources?
FRENCH
De mon point de vue, le principe du droit souverain des Etats sur leurs ressources naturelles part d'une constatation à double facette : d'une part, le fait pour l'Etat de respecter l'intégrité de ses semblables et en contrepartie de voir son intégrité respectée. De cette réalité ressort deux principes, en l'occurrence, le principe de l'utilisation non-dommageable du territoire national et de la contribution à la protection de l'environnement hors des frontières nationales (I) et en deuxième lieu le principe de non-intervention (II).
Pour le respect du principe de l'utilisation non-dommageable du territoire national et contribution à la protection de l'environnement hors des frontières nationales, la Cour Internationale de Justice, affirme « l'obligation pour tout Etat de ne pas laisser utiliser son territoire aux fins d'actes contraires aux droits d'autres Etats ».
Il s'agit là d'une conséquence directe de l'égalité et de la réciprocité des droits souverains. Ceci est particulièrement vrai s'agissant des conséquences des activités qu'un Etat déterminé peut entreprendre à l'intérieur de sa propre zone de compétences. Il devra veiller à s'assurer que des dommages ou préjudices divers ne seront pas entraînés sur le territoire des Etats par ses propres activités ou celles qu'il autorise. L'exercice par chacun de sa compétence territoriale, notamment en matière d'aménagement du territoire ou dans le cadre de l'exercice de sa souveraineté sur les ressources naturelles, ne peut s'effectuer que sans préjudice du droit des tiers.
Notons ensuite que cette règle, de caractère coutumier, ne voit plus aujourd'hui sa portée restreinte aux seules relations de voisinage entre Etats limitrophes. Elle a notamment pris, sur la base du principe 21 de la Déclaration de Stockholm sur l'environnement humain (1972), une portée considérable dans le cadre du droit international de l'environnement confirmant sa portée coutumière. Cette valeur coutumière a, en effet, été affirmée par la Cour internationale de justice, lorsque dans le premier arrêt de son histoire spécifiquement consacré en bonne part au droit international de l'environnement. Il s'agit de sa décision intervenue en l'affaire du projet Gabcikovo-Nagymaros entre la Hongrie et la Slovaquie (25 septembre 1997). Dans chacune de ces espèces, elle déclare : « l'obligation générale qu'ont les Etats de veiller à ce que les activités exercées dans les limites de leur juridiction ou dans des zones ne relevant d'aucune juridiction nationale fait maintenant partie du corps de règles du droit international de l'environnement ».
Enfin, l’essentiel serait que les missions du mécanisme soient claires, sans ambigüité et transparentes. Il faut aussi que ces mécanismes d’accès ne soient pas en concurrence déloyale avec ceux des Etats.
ENGLISH
From my point of view, the principle of the sovereign right of States over their natural resources from a finding double aspect: first, the fact that the State to respect the integrity of his fellows and in return see integrity respected. This fact is evident two principles, namely, the principle of non-damaging use of the country and contributing to the protection of the environment beyond national borders (I) and second, the principle of non- -Intervention (II).
To respect the principle of non-damaging use of the national territory and contribution to environmental protection across national borders, the International Court of Justice said "the obligation for the State not to allow knowingly its territory for acts contrary to the rights of other States. »
This is a direct consequence of equality and reciprocity sovereign rights. This is particularly true as regards the consequences of activities that a given state can be undertaken within its own area of expertise. It will seek to ensure that damage or various harms are not trained on the territory of states by its own activities or those authorized. The exercise by each of its jurisdiction, particularly in terms of land or through the exercise of sovereignty over natural resources, can only be done without prejudice to the rights of third parties.
Then note that this rule of customary, today sees its limited scope only neighborly relations between neighboring states. She took particular, on the basis of principle 21 of the Stockholm Declaration on the Human Environment (1972), reaching under the international environmental law confirming his usual range. This customary law has, in fact, been confirmed by the International Court of Justice, where the first stop of his story specifically devoted largely to international environmental law. This is the decision taken in the Gabcikovo-Nagymaros project between Hungary and Slovakia (25 September 1997). In each of these species, she says, "the general obligation of States to ensure that activities within their jurisdiction or in areas beyond national jurisdiction is now part of the body rules of international environmental law. »
Finally, the key is that the missions of the mechanism are clear, unambiguous and transparent. It also requires that these access mechanisms are not in unfair competition with those states.
From my point of view, to keep the bilateral protocol system, we could designate a competent authority for the mechanism for resources that would be considered against cross-border and / or why it would be impossible to give the PIC and MAT of level a state. It's Authority will give the PIC and MAT, contact the CHM Protocol and the need with States.
FRENCH
De mon point de vue, le principe du droit souverain des Etats sur leurs ressources naturelles part d'une constatation à double facette : d'une part, le fait pour l'Etat de respecter l'intégrité de ses semblables et en contrepartie de voir son intégrité respectée. De cette réalité ressort deux principes, en l'occurrence, le principe de l'utilisation non-dommageable du territoire national et de la contribution à la protection de l'environnement hors des frontières nationales (I) et en deuxième lieu le principe de non-intervention (II).
Pour le respect du principe de l'utilisation non-dommageable du territoire national et contribution à la protection de l'environnement hors des frontières nationales, la Cour Internationale de Justice, affirme « l'obligation pour tout Etat de ne pas laisser utiliser son territoire aux fins d'actes contraires aux droits d'autres Etats ».
Il s'agit là d'une conséquence directe de l'égalité et de la réciprocité des droits souverains. Ceci est particulièrement vrai s'agissant des conséquences des activités qu'un Etat déterminé peut entreprendre à l'intérieur de sa propre zone de compétences. Il devra veiller à s'assurer que des dommages ou préjudices divers ne seront pas entraînés sur le territoire des Etats par ses propres activités ou celles qu'il autorise. L'exercice par chacun de sa compétence territoriale, notamment en matière d'aménagement du territoire ou dans le cadre de l'exercice de sa souveraineté sur les ressources naturelles, ne peut s'effectuer que sans préjudice du droit des tiers.
Notons ensuite que cette règle, de caractère coutumier, ne voit plus aujourd'hui sa portée restreinte aux seules relations de voisinage entre Etats limitrophes. Elle a notamment pris, sur la base du principe 21 de la Déclaration de Stockholm sur l'environnement humain (1972), une portée considérable dans le cadre du droit international de l'environnement confirmant sa portée coutumière. Cette valeur coutumière a, en effet, été affirmée par la Cour internationale de justice, lorsque dans le premier arrêt de son histoire spécifiquement consacré en bonne part au droit international de l'environnement. Il s'agit de sa décision intervenue en l'affaire du projet Gabcikovo-Nagymaros entre la Hongrie et la Slovaquie (25 septembre 1997). Dans chacune de ces espèces, elle déclare : « l'obligation générale qu'ont les Etats de veiller à ce que les activités exercées dans les limites de leur juridiction ou dans des zones ne relevant d'aucune juridiction nationale fait maintenant partie du corps de règles du droit international de l'environnement ».
Enfin, l’essentiel serait que les missions du mécanisme soient claires, sans ambigüité et transparentes. Il faut aussi que ces mécanismes d’accès ne soient pas en concurrence déloyale avec ceux des Etats.
ENGLISH
From my point of view, the principle of the sovereign right of States over their natural resources from a finding double aspect: first, the fact that the State to respect the integrity of his fellows and in return see integrity respected. This fact is evident two principles, namely, the principle of non-damaging use of the country and contributing to the protection of the environment beyond national borders (I) and second, the principle of non- -Intervention (II).
To respect the principle of non-damaging use of the national territory and contribution to environmental protection across national borders, the International Court of Justice said "the obligation for the State not to allow knowingly its territory for acts contrary to the rights of other States. »
This is a direct consequence of equality and reciprocity sovereign rights. This is particularly true as regards the consequences of activities that a given state can be undertaken within its own area of expertise. It will seek to ensure that damage or various harms are not trained on the territory of states by its own activities or those authorized. The exercise by each of its jurisdiction, particularly in terms of land or through the exercise of sovereignty over natural resources, can only be done without prejudice to the rights of third parties.
Then note that this rule of customary, today sees its limited scope only neighborly relations between neighboring states. She took particular, on the basis of principle 21 of the Stockholm Declaration on the Human Environment (1972), reaching under the international environmental law confirming his usual range. This customary law has, in fact, been confirmed by the International Court of Justice, where the first stop of his story specifically devoted largely to international environmental law. This is the decision taken in the Gabcikovo-Nagymaros project between Hungary and Slovakia (25 September 1997). In each of these species, she says, "the general obligation of States to ensure that activities within their jurisdiction or in areas beyond national jurisdiction is now part of the body rules of international environmental law. »
Finally, the key is that the missions of the mechanism are clear, unambiguous and transparent. It also requires that these access mechanisms are not in unfair competition with those states.
From my point of view, to keep the bilateral protocol system, we could designate a competent authority for the mechanism for resources that would be considered against cross-border and / or why it would be impossible to give the PIC and MAT of level a state. It's Authority will give the PIC and MAT, contact the CHM Protocol and the need with States.
- How to ensure that a global multilateral benefit-sharing mechanism does not represent a disincentive for implementation of the bilateral system of the Protocol?
FRENCH
De mon point de vue, pour conserver le système bilatéral du protocole, on pourrait désigner une Autorité compétente pour le mécanisme pour les ressources qui seraient considérées contre transfrontalières et /ou pour lesquelles il serait impossible de donner le PIC et le MAT au niveau d’un Etat. C’est Autorité qui donnera le PIC et le MAT, communiquera avec le CHM du Protocole et au besoin avec les Etats.
ENGLISH
From my point of view, to keep the bilateral protocol system, we could designate a competent authority for the mechanism for resources that would be considered against cross-border and / or why it would be impossible to give the PIC and MAT of level a state. It's Authority will give the PIC and MAT, contact the CHM Protocol and the need with States.
FRENCH
De mon point de vue, pour conserver le système bilatéral du protocole, on pourrait désigner une Autorité compétente pour le mécanisme pour les ressources qui seraient considérées contre transfrontalières et /ou pour lesquelles il serait impossible de donner le PIC et le MAT au niveau d’un Etat. C’est Autorité qui donnera le PIC et le MAT, communiquera avec le CHM du Protocole et au besoin avec les Etats.
ENGLISH
From my point of view, to keep the bilateral protocol system, we could designate a competent authority for the mechanism for resources that would be considered against cross-border and / or why it would be impossible to give the PIC and MAT of level a state. It's Authority will give the PIC and MAT, contact the CHM Protocol and the need with States.
I could be possible if the multilateral mechanism is used as a complement of bilateral system. When it is applied just to specific exceptions where PIC and MAT can not be obtained.
Some transboundary situations (GR and TK) could be solved under Article 11.
- How to apply Art. 10 and 11 without causing harm to the principle of the sovereign right of states over their natural resources?
If the multilateral mechanism respects the country´s decision of establish a bilateral system to legislate the genetic resources under its jurisdiction.
Respecting if the country decide to use the multilateral mechanism just when is not possible to use the bilateral one.
Indigenous willing must be taken in account when a national or international mechanism will involve its communities and its TK (through a consulting process)
Some transboundary situations (GR and TK) could be solved under Article 11.
- How to apply Art. 10 and 11 without causing harm to the principle of the sovereign right of states over their natural resources?
If the multilateral mechanism respects the country´s decision of establish a bilateral system to legislate the genetic resources under its jurisdiction.
Respecting if the country decide to use the multilateral mechanism just when is not possible to use the bilateral one.
Indigenous willing must be taken in account when a national or international mechanism will involve its communities and its TK (through a consulting process)
The Objective of the Nagoya Protocol refers to the need for “appropriate” access to GR and transfer of technology, but specifies that this must be with recognition of the rights over those resources. The Scope clarifies that the Protocol applies to those genetic resources within the scope of Article 15 of the CBD. As clearly noted in Article 15, states have sovereign rights over their genetic resources. Therefore, the concept of the multilateral benefit-sharing mechanism may conflict with the Objective and Scope of the Protocol, particularly with regard to the recognition of states’ sovereign rights over their genetic resources. Because Article 10 of the Nagoya Protocol instructs Parties first to consider the need for a global multilateral benefit sharing mechanism, it is important that Parties first implement the Nagoya Protocol and develop experience with it. This will allow Parties to more fully consider the need for a global multilateral benefit sharing mechanism and ensure that any mechanism developed does not run counter to the principles, objective and scope of the Protocol and of the CBD itself.
Any overarching mechanism aimed at benefit sharing across multiple states risks undermining the sovereign rights of those states over the genetic resources found within their borders. One of the principles of the CBD is that states should have the freedom to create mutually agreed terms for access and benefit sharing as they deem appropriate for their needs. While one state may feel it is important to create greater regulations on access to their genetic resources, another state may determine that for its needs, it is more important to ensure access as a means of achieving benefits. These decisions should be left to individual states as sovereign rights holders over their own genetic resources.
A key first step is for states to implement the Nagoya Protocol and determine its effectiveness for achieving the goals of the CBD. Without this experience, it will be difficult for Parties to determine the most effective means of addressing transboundary GR. There is also the concern that states may simply rely on the global multilateral benefit sharing mechanism and therefore fail to implement the Protocol nationally. It is important to note, however, that Art. 10 states any benefits obtained from the global multilateral benefit sharing mechanism are to be used only for conservation of GR globally. Therefore, it is in the states’ own interests to implement the Protocol and apply it as they deem appropriate if they wish to derive benefits from the commercialization of their own genetic resources.
Any overarching mechanism aimed at benefit sharing across multiple states risks undermining the sovereign rights of those states over the genetic resources found within their borders. One of the principles of the CBD is that states should have the freedom to create mutually agreed terms for access and benefit sharing as they deem appropriate for their needs. While one state may feel it is important to create greater regulations on access to their genetic resources, another state may determine that for its needs, it is more important to ensure access as a means of achieving benefits. These decisions should be left to individual states as sovereign rights holders over their own genetic resources.
A key first step is for states to implement the Nagoya Protocol and determine its effectiveness for achieving the goals of the CBD. Without this experience, it will be difficult for Parties to determine the most effective means of addressing transboundary GR. There is also the concern that states may simply rely on the global multilateral benefit sharing mechanism and therefore fail to implement the Protocol nationally. It is important to note, however, that Art. 10 states any benefits obtained from the global multilateral benefit sharing mechanism are to be used only for conservation of GR globally. Therefore, it is in the states’ own interests to implement the Protocol and apply it as they deem appropriate if they wish to derive benefits from the commercialization of their own genetic resources.
The clearly stated scope of the Protocol is that of Article 15 of the Convention, which recognizes sovereign rights over natural resources, and that the authority to determine access to genetic resources rests with national governments and is subject to national legislation. Article 10 is subject to this scope, as are all other articles in the Nagoya Protocol. For this reason, it is difficult to see how natural resources that fall outside the jurisdiction of a Contracting Party could be covered by a GMBSM under Article 10.
Regarding [#5163]: The invocation of “sovereignty” has become a panchrestron (http://dictionary.reference.com/browse/panchreston). One can argue that a GMBSM better expresses sovereignty than does the bilateral approach, as the latter goes against national interests due to the race-to-the-bottom for a MTA. The 193 Parties to the CBD should note well that the leading non-Party invokes “sovereignty” only at its convenience. For example, the sovereignty of the US has long been the purported reason for not ratifying the 1973 UN Convention on the Law of the Sea (UNCLOS) until said treaty became in the national interests of the US. The Bush Administration strongly endorsed ratification of UNCLOS (http://www.isn.ethz.ch/isn/Digital-Library/Articles/Detail/?ots591=4888caa0-b3db-1461-98b9-e20e7b9c13d4&lng=en&id=53665). The lesson to be learned from UNCLOS is that GMBSM must compel the User to pay royalties to the Providers no matter where the genetic material that harbored the natural information was accessed.
Article 10 refers specifically to prior informed consent, a key principle of the Convention and the Nagoya Protocol. Both instruments clearly state that access shall be subject to the prior informed consent of the Contracting Party providing the resource, unless otherwise determined (by that Party). For this reason, it is difficult to see how the requirement to obtain prior informed consent could be applied in the absence of the will of the Contracting Party providing the resource, or any sovereign state providing a resource for that matter.
Dear all:
The Framework Law No. 300 of Mother Earth and Integral Development for the Good Living established in Article 13.5, the development of the Plurinational State of Bolivia by actions "to prevent the mercantilization of genetic resources, water privatization, biopiracy and illegal transfer of genetic material, the participation of monopolies and / or oligopolies in the production and marketing of seeds and food”. In this context, Bolivia cannot participate in global multilateral benefit-sharing mechanism based in contracts and mercantilization processes therefor.
The Plurinational State of Bolivia at COP11 held in Hyderabad – India, has proposed the need to establish a modality that is not based on the market for access to genetic resources and the fair and equitable sharing of benefits arising from their use, as a condition to promote the ratification of the Nagoya Protocol. In this context, Bolivia raises to start the mechanism of the multilateral benefit sharing of genetic resources worldwide through an approach that is not based on the market; that means, in no marketing or mercantilization of genetic resources.
In this way, the decision XI / 1 (CBD COP11, 2012) in paragraph 4 establishes at the end of the completion of the work of the Expert Group in the third session of the Intergovernmental Committee, that should be consider the need for a further study, including approaches not based in the markets. Then, from the beginning of the design process should be analyzed to build a modality that is not based on the market to the overall functioning of the multilateral mechanism.
This mechanism should have the following premises:
1. Process Development of complementarity between the states and people in the framework of the exchange of genetic resources based on the principles of solidarity, fellowship, social justice, creating edifying links and respect for the rights of the Mother Earth.
2. Exchange in access of genetic resources for the solution of the problems for developing countries are fundamentally linked to the eradication of extreme poverty, including problems of food and health.
3. Processes development of complementarity between states and people under the exchange of genetic resources to solve mutual problems associated with technology transfer, financing and capacity building.
Regards,
Sorka Copa Romero
The Framework Law No. 300 of Mother Earth and Integral Development for the Good Living established in Article 13.5, the development of the Plurinational State of Bolivia by actions "to prevent the mercantilization of genetic resources, water privatization, biopiracy and illegal transfer of genetic material, the participation of monopolies and / or oligopolies in the production and marketing of seeds and food”. In this context, Bolivia cannot participate in global multilateral benefit-sharing mechanism based in contracts and mercantilization processes therefor.
The Plurinational State of Bolivia at COP11 held in Hyderabad – India, has proposed the need to establish a modality that is not based on the market for access to genetic resources and the fair and equitable sharing of benefits arising from their use, as a condition to promote the ratification of the Nagoya Protocol. In this context, Bolivia raises to start the mechanism of the multilateral benefit sharing of genetic resources worldwide through an approach that is not based on the market; that means, in no marketing or mercantilization of genetic resources.
In this way, the decision XI / 1 (CBD COP11, 2012) in paragraph 4 establishes at the end of the completion of the work of the Expert Group in the third session of the Intergovernmental Committee, that should be consider the need for a further study, including approaches not based in the markets. Then, from the beginning of the design process should be analyzed to build a modality that is not based on the market to the overall functioning of the multilateral mechanism.
This mechanism should have the following premises:
1. Process Development of complementarity between the states and people in the framework of the exchange of genetic resources based on the principles of solidarity, fellowship, social justice, creating edifying links and respect for the rights of the Mother Earth.
2. Exchange in access of genetic resources for the solution of the problems for developing countries are fundamentally linked to the eradication of extreme poverty, including problems of food and health.
3. Processes development of complementarity between states and people under the exchange of genetic resources to solve mutual problems associated with technology transfer, financing and capacity building.
Regards,
Sorka Copa Romero
The Bolivian position (Comment #5185 and #5186) is reminiscent of the “common heritage of mankind” doctrine that pre-dates the ratification of the CBD and persists in Andorra, the Holy See, South Sudan and the United States of America. In some cases, the free flow of natural information has advantages that outweigh the disadvantages as exemplified in crop germplasm (see Stephen B. Brush, ed., “Valuing Traditional Knowledge”). However, in the qualifiers “fair and equitable,” the Parties have implicitly recognized that the disadvantages are greater than the advantages across genetic resources as a whole.
A GBSM which incorporates “bounded openness over natural information” enables a more efficient and equitable market solution to the question of access. In that sense, bounded openness does not correspond to the Bolivian position. However, the solution does cohere with the Bolivian emphasis on the alleviation of extreme poverty and “the principles of solidarity, fellowship, social justice.” The proceeds from a significant royalty levied on biotechnologies that utilize natural information would not be earmarked. The Party would decide how to allocate the proceeds to public goods. One would hope good government means that the allocation would go to those projects with the greatest social return. Rather than a conservation project, the greatest social return may be in electrification, sanitation or public health. Counterintuitively, the absence of earmarking conservation does not mean that there will be less conservation. By distributing the proceeds according to geographic area of the species (plural) which harbor the natural information, incentives are aligned among countries to conserve habitat.
The alternative to bounded openness is the bilateral approach that has resulted in very few Material Transfer Agreements, royalties too low to disclose and earmarking.
A GBSM which incorporates “bounded openness over natural information” enables a more efficient and equitable market solution to the question of access. In that sense, bounded openness does not correspond to the Bolivian position. However, the solution does cohere with the Bolivian emphasis on the alleviation of extreme poverty and “the principles of solidarity, fellowship, social justice.” The proceeds from a significant royalty levied on biotechnologies that utilize natural information would not be earmarked. The Party would decide how to allocate the proceeds to public goods. One would hope good government means that the allocation would go to those projects with the greatest social return. Rather than a conservation project, the greatest social return may be in electrification, sanitation or public health. Counterintuitively, the absence of earmarking conservation does not mean that there will be less conservation. By distributing the proceeds according to geographic area of the species (plural) which harbor the natural information, incentives are aligned among countries to conserve habitat.
The alternative to bounded openness is the bilateral approach that has resulted in very few Material Transfer Agreements, royalties too low to disclose and earmarking.
To imagine how a multilateral mechanism might co-exist with the rest of the Protocol it is first necessary to abandon the unfounded assumption that multilateral and bilateral ABS approaches are incompatible, mutually exclusive or somehow in conflict. It is also untrue that the bilateral approach must be fully implemented before the need for a multilateral element can be agreed.
A GMBSM will deliver most value if it is created as soon as possible and implemented alongside the bilateral system as a complementary option. It would also be useful not to prejudge the exact modalities of the GMBSM and to remember that it could encompass sub-sections, such as ring-fenced regional, sub-regional or sectoral arrangements; it could also (especially if implemented in a phased, stepwise approach aimed at developing an SMTA with sectoral model clauses) accommodate different ABS models, such as “bounded openness over natural information” (the logic of which, to my mind at least, seems fairly unassailable in cases where the subject matter is indeed strictly natural information) and “ethical biotrade” (which is particularly relevant in cases where users require secure long-term repeated access to a supply chain of biological resources, but there is also a clear ABS element).
As far as co-existing with underlying principles are concerned, the Protocol explicitly recognises in its Preamble the principle “that an innovative solution is required to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent”.
Article 10 was added to the Protocol exactly because its other (bilateral) provisions do not adequately address all ABS situations (or even most ABS situations – as others have argued here). It is indeed difficult to imagine how the “underlying principles, objective and scope upon which the Nagoya Protocol is based” can all be reconciled during implementation if there is no supplementary global mechanism for dealing with those cases, or aspects of cases, which cannot be accommodated by the bilateral “standard” approach.
The Protocol further recognises “that public awareness of the economic value of ecosystems and biodiversity and the fair and equitable sharing of this economic value with the custodians of biodiversity are key incentives for the conservation of biological diversity and the sustainable use of its components”. This principle would be seriously undermined (and with it the objectives of the CBD and the NP) if the economic value is not shared fairly and equitably (or not shared at all), with the custodians of biodiversity (who might not necessarily be the same “providers” who benefit under the MAT of a strictly bilateral system).
If the NP creates a “two-track” international ABS system, which on the one hand allows some GR and/or ATK (e.g. from countries that do not require PIC, or ABNJ, or Antarctica, or purchased as commodities, or already available as information in the “public domain”) to be utilised “for free” (i.e. with no benefit sharing obligation) while on the other hand burdening all “bilateral resources” with the transaction costs (and legal uncertainties in transboundary situations) of negotiating MAT and obtaining PIC, the effect will almost certainly be to divert a very substantial share of research and investment budgets towards “free” opportunities (a rational market response). This would fatally compromise effective functioning of the ABS system, to the long-term detriment of sustainable use and conservation, and would additionally violate Article 4(b) (and arguably Article 5) of the CBD.
Making international policy that leads to such perverse outcomes would runner counter to and undermine the objectives of the CBD and NP, and fall dismally short in raising the resources so badly needed to support conservation and sustainable use. By contrast, creating a functioning GMBSM will establish the moral (and – to the extent that it is taken up in national law – legal) principle that all utilisation of biodiversity that results in private benefits must be accompanied by providing a fair and equitable share of those privatised benefits “to support ... conservation ... and sustainable use ... globally” (including voluntary sharing of benefits arising from continuous utilisation). Moreover, the GMBSM will provide a vehicle through which innovative solutions can be tried out by those Parties who are willing to do so.
From the above it is evident that the bilateral system in fact needs (and from the very beginning needs) to be complemented by a multilateral mechanism if the total system of bilateral and multilateral measures is to co-exist with the “underlying principles, objective and scope upon which the Nagoya Protocol is based”.
It is worth pointing out that in principle the NP has no inherent or expressed bias against multilateral solutions:
“Recalling the Multilateral System of Access and Benefit-sharing established under the International Treaty on Plant Genetic Resources for Food and Agriculture developed in harmony with the Convention” [i.e. multilateral ABS systems are not fundamentally in disharmony with the CBD]
and
“Recognizing that international instruments related to access and benefit-sharing should be mutually supportive with a view to achieving the objectives of the Convention” [i.e. a GMBSM must be mutually supportive with the bilateral provisions of the CBD but is otherwise acceptable]
The issue of scope only arises here if it is assumed that the scope of the GMBSM must necessarily be exactly the same as that described in Article 3 (which would completely ignore the fact that Article 10 was introduced to postpone difficult decisions on the scope, as I indicated in my submission during Round 1). Even in cases where it is admittedly beyond the competence of the CBD to make legally binding access rules (e.g. ABNJ and the Antarctic Treaty Area) the GMBSM can nevertheless leave open the option of it later being used by and for benefit sharing beyond the scope of Article 15 of the CBD, or as part of a solution to specific categories of ABS that are well within the scope of Article 15 but nevertheless require distinctive solutions (e.g. GR for food and agriculture, or pathogens), or in a “mixed” system if so directed by domestic legislation and/or agreed in MAT.
The issue of scope is also closely tied in with matters related to compliance, tracking and monitoring. In this regard it must be recalled that the NP was negotiated as part of an international ABS regime precisely to safeguard fair and equitable sharing of the benefits arising from GR and ATK that are utilised in another jurisdiction from the one where they were accessed. To make the compliance, tracking and monitoring system functional, users will need to show at appropriate checkpoints that they have the legal right to utilise a particular GR and/or ATK, either because they have obtained PIC and concluded MAT bilaterally, or else because they have accessed the resources from a situation where PIC is not required or could not (practically) be granted or obtained.
This implies that even those Parties who choose not to require PIC would ideally still need to put in place some system to provide users with proof that they have utilised the resource legally, otherwise users will experience problems when trying to pass checkpoints in other jurisdictions (e.g. making the mandatory disclosure required by Chinese patent applications).
Likewise, ABNJ and Antarctic Treaty ABS processes, in which no-one presumably has or could ever acquire a legal right to grant access, would nevertheless need to establish a way for users to prove that resources were in fact accessed from these areas, and not from neighbouring territorial waters subject to sovereign control over access.
Additionally, there are the many situations in which multiple resources are utilised to develop a product (and sometimes none of them is later used in the actual product), or where background IP that originated from biopiracy but is now in the public domain is combined with new access and utilisation. In such situations it becomes very (often prohibitively) expensive and difficult to disentangle the relative contribution of each utilised resource and agree on fair and equitable benefit sharing.
In all of these situations, a flexible, pragmatic and solution-seeking GMBSM could help both providers and users, as well as biodiversity itself.
• How to apply Art. 10 and 11 without causing harm to the principle of the sovereign right of states over their natural resources?
The sovereign right of states over their natural resources is enshrined in the UN Charter and the CBD and can therefore not be touched as a principle. Article 11 is irrelevant here, because it only specifies that “Parties shall endeavour to cooperate, as appropriate, with a view to implementing this Protocol” (Article 11.1) or “... the objective of this Protocol” (Article 11.2). [As an aside, since the Objective in Article 1 does not mention ATK at all it is far from clear what Article 11.2 actually means in practice.] As pointed out by other participants, there are many examples of cooperative arrangements between States around the management of shared resources which either do not harm sovereign rights, or where sovereign rights are voluntarily curtailed in pursuit of a shared objective. The GMBSM should not (and most likely cannot) force any State to provide PIC unless it chooses to do so, but it can provide those who are willing to use it with an additional tool for securing benefit sharing.
• How to ensure that a global multilateral benefit-sharing mechanism does not represent a disincentive for implementation of the bilateral system of the Protocol?
This question can be understood in two ways: a) the GMBSM could create a disincentive to implement the access provisions in Article 6, or b) it could create a disincentive for users to seek bilateral ABS agreements based on PIC and MAT.
In the first case Article 6 already provides an “unless otherwise determined by that Party” exception on access rules. It would also be perfectly within the sovereign right of a Party to provide free access but still stipulate in its domestic legislation or regulatory requirements that users have to share benefits through the GMBSM. In reality most countries will probably (eventually) develop domestic ABS laws to secure their rights to those resources that are undoubtedly within the bilateral system (e.g. endemics and valuable one-off mutations). There is no obvious reason why the creation of a GMBSM would provide a disincentive to implement national access measures (although, as other have pointed out, there might be capacity restraints on doing so quickly and efficiently.
In the second case it is true that arduous national PIC and MAT requirements can create an incentive for users to seek access from different sources, or to concentrate research and investment efforts on those resources that do not have such high transaction costs and/or legal uncertainties attached. But this “disincentive” would not be created by the GMBSM – if anything the mechanism will (as pointed out above) establish both the principle of a universal benefit sharing obligation, and a practical way to implement it, thereby effectively lessening the “competitive advantage” that could arguably be secured by seeking “soft” access, and making it more, not less, likely that users will seek access through bilateral arrangements (at least in many more cases).
A GMBSM will deliver most value if it is created as soon as possible and implemented alongside the bilateral system as a complementary option. It would also be useful not to prejudge the exact modalities of the GMBSM and to remember that it could encompass sub-sections, such as ring-fenced regional, sub-regional or sectoral arrangements; it could also (especially if implemented in a phased, stepwise approach aimed at developing an SMTA with sectoral model clauses) accommodate different ABS models, such as “bounded openness over natural information” (the logic of which, to my mind at least, seems fairly unassailable in cases where the subject matter is indeed strictly natural information) and “ethical biotrade” (which is particularly relevant in cases where users require secure long-term repeated access to a supply chain of biological resources, but there is also a clear ABS element).
As far as co-existing with underlying principles are concerned, the Protocol explicitly recognises in its Preamble the principle “that an innovative solution is required to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent”.
Article 10 was added to the Protocol exactly because its other (bilateral) provisions do not adequately address all ABS situations (or even most ABS situations – as others have argued here). It is indeed difficult to imagine how the “underlying principles, objective and scope upon which the Nagoya Protocol is based” can all be reconciled during implementation if there is no supplementary global mechanism for dealing with those cases, or aspects of cases, which cannot be accommodated by the bilateral “standard” approach.
The Protocol further recognises “that public awareness of the economic value of ecosystems and biodiversity and the fair and equitable sharing of this economic value with the custodians of biodiversity are key incentives for the conservation of biological diversity and the sustainable use of its components”. This principle would be seriously undermined (and with it the objectives of the CBD and the NP) if the economic value is not shared fairly and equitably (or not shared at all), with the custodians of biodiversity (who might not necessarily be the same “providers” who benefit under the MAT of a strictly bilateral system).
If the NP creates a “two-track” international ABS system, which on the one hand allows some GR and/or ATK (e.g. from countries that do not require PIC, or ABNJ, or Antarctica, or purchased as commodities, or already available as information in the “public domain”) to be utilised “for free” (i.e. with no benefit sharing obligation) while on the other hand burdening all “bilateral resources” with the transaction costs (and legal uncertainties in transboundary situations) of negotiating MAT and obtaining PIC, the effect will almost certainly be to divert a very substantial share of research and investment budgets towards “free” opportunities (a rational market response). This would fatally compromise effective functioning of the ABS system, to the long-term detriment of sustainable use and conservation, and would additionally violate Article 4(b) (and arguably Article 5) of the CBD.
Making international policy that leads to such perverse outcomes would runner counter to and undermine the objectives of the CBD and NP, and fall dismally short in raising the resources so badly needed to support conservation and sustainable use. By contrast, creating a functioning GMBSM will establish the moral (and – to the extent that it is taken up in national law – legal) principle that all utilisation of biodiversity that results in private benefits must be accompanied by providing a fair and equitable share of those privatised benefits “to support ... conservation ... and sustainable use ... globally” (including voluntary sharing of benefits arising from continuous utilisation). Moreover, the GMBSM will provide a vehicle through which innovative solutions can be tried out by those Parties who are willing to do so.
From the above it is evident that the bilateral system in fact needs (and from the very beginning needs) to be complemented by a multilateral mechanism if the total system of bilateral and multilateral measures is to co-exist with the “underlying principles, objective and scope upon which the Nagoya Protocol is based”.
It is worth pointing out that in principle the NP has no inherent or expressed bias against multilateral solutions:
“Recalling the Multilateral System of Access and Benefit-sharing established under the International Treaty on Plant Genetic Resources for Food and Agriculture developed in harmony with the Convention” [i.e. multilateral ABS systems are not fundamentally in disharmony with the CBD]
and
“Recognizing that international instruments related to access and benefit-sharing should be mutually supportive with a view to achieving the objectives of the Convention” [i.e. a GMBSM must be mutually supportive with the bilateral provisions of the CBD but is otherwise acceptable]
The issue of scope only arises here if it is assumed that the scope of the GMBSM must necessarily be exactly the same as that described in Article 3 (which would completely ignore the fact that Article 10 was introduced to postpone difficult decisions on the scope, as I indicated in my submission during Round 1). Even in cases where it is admittedly beyond the competence of the CBD to make legally binding access rules (e.g. ABNJ and the Antarctic Treaty Area) the GMBSM can nevertheless leave open the option of it later being used by and for benefit sharing beyond the scope of Article 15 of the CBD, or as part of a solution to specific categories of ABS that are well within the scope of Article 15 but nevertheless require distinctive solutions (e.g. GR for food and agriculture, or pathogens), or in a “mixed” system if so directed by domestic legislation and/or agreed in MAT.
The issue of scope is also closely tied in with matters related to compliance, tracking and monitoring. In this regard it must be recalled that the NP was negotiated as part of an international ABS regime precisely to safeguard fair and equitable sharing of the benefits arising from GR and ATK that are utilised in another jurisdiction from the one where they were accessed. To make the compliance, tracking and monitoring system functional, users will need to show at appropriate checkpoints that they have the legal right to utilise a particular GR and/or ATK, either because they have obtained PIC and concluded MAT bilaterally, or else because they have accessed the resources from a situation where PIC is not required or could not (practically) be granted or obtained.
This implies that even those Parties who choose not to require PIC would ideally still need to put in place some system to provide users with proof that they have utilised the resource legally, otherwise users will experience problems when trying to pass checkpoints in other jurisdictions (e.g. making the mandatory disclosure required by Chinese patent applications).
Likewise, ABNJ and Antarctic Treaty ABS processes, in which no-one presumably has or could ever acquire a legal right to grant access, would nevertheless need to establish a way for users to prove that resources were in fact accessed from these areas, and not from neighbouring territorial waters subject to sovereign control over access.
Additionally, there are the many situations in which multiple resources are utilised to develop a product (and sometimes none of them is later used in the actual product), or where background IP that originated from biopiracy but is now in the public domain is combined with new access and utilisation. In such situations it becomes very (often prohibitively) expensive and difficult to disentangle the relative contribution of each utilised resource and agree on fair and equitable benefit sharing.
In all of these situations, a flexible, pragmatic and solution-seeking GMBSM could help both providers and users, as well as biodiversity itself.
• How to apply Art. 10 and 11 without causing harm to the principle of the sovereign right of states over their natural resources?
The sovereign right of states over their natural resources is enshrined in the UN Charter and the CBD and can therefore not be touched as a principle. Article 11 is irrelevant here, because it only specifies that “Parties shall endeavour to cooperate, as appropriate, with a view to implementing this Protocol” (Article 11.1) or “... the objective of this Protocol” (Article 11.2). [As an aside, since the Objective in Article 1 does not mention ATK at all it is far from clear what Article 11.2 actually means in practice.] As pointed out by other participants, there are many examples of cooperative arrangements between States around the management of shared resources which either do not harm sovereign rights, or where sovereign rights are voluntarily curtailed in pursuit of a shared objective. The GMBSM should not (and most likely cannot) force any State to provide PIC unless it chooses to do so, but it can provide those who are willing to use it with an additional tool for securing benefit sharing.
• How to ensure that a global multilateral benefit-sharing mechanism does not represent a disincentive for implementation of the bilateral system of the Protocol?
This question can be understood in two ways: a) the GMBSM could create a disincentive to implement the access provisions in Article 6, or b) it could create a disincentive for users to seek bilateral ABS agreements based on PIC and MAT.
In the first case Article 6 already provides an “unless otherwise determined by that Party” exception on access rules. It would also be perfectly within the sovereign right of a Party to provide free access but still stipulate in its domestic legislation or regulatory requirements that users have to share benefits through the GMBSM. In reality most countries will probably (eventually) develop domestic ABS laws to secure their rights to those resources that are undoubtedly within the bilateral system (e.g. endemics and valuable one-off mutations). There is no obvious reason why the creation of a GMBSM would provide a disincentive to implement national access measures (although, as other have pointed out, there might be capacity restraints on doing so quickly and efficiently.
In the second case it is true that arduous national PIC and MAT requirements can create an incentive for users to seek access from different sources, or to concentrate research and investment efforts on those resources that do not have such high transaction costs and/or legal uncertainties attached. But this “disincentive” would not be created by the GMBSM – if anything the mechanism will (as pointed out above) establish both the principle of a universal benefit sharing obligation, and a practical way to implement it, thereby effectively lessening the “competitive advantage” that could arguably be secured by seeking “soft” access, and making it more, not less, likely that users will seek access through bilateral arrangements (at least in many more cases).
I believe Pierre du Plessis has well-expressed some of the basic rationale of Article 10. While much of the discussion here has been on fair and equitable benefit sharing, the fundamental purpose of all ABS must be kept within the pillars of the CBD, primary of which is to conserve and sustainably use biodiversity. Economics plays a role, but to place arguments entirely within an economic framework are a mistake. And one needs to be careful about elevating some useful heuristics to the level of inescapable truths. Full spectrum and life-cycle assessments can include many principles beyond economics, including political economy, human rights, resource rights, development objectives, and so on.
Much of the thinking around the negotiation of the Nagoya Protocol was around the bilateral negotiation model of user and provider. And it remains an important context of access, But as Pierre points out, negotiators were aware of other contexts, and not simply willfully ignorant, or these contexts, which is why Article 10 was developed.
I would like to focus on what Pierre du Plessis wrote in post [#5191]:
"The Protocol further recognises “that public awareness of the economic value of ecosystems and biodiversity and the fair and equitable sharing of this economic value with the custodians of biodiversity are key incentives for the conservation of biological diversity and the sustainable use of its components”. This principle would be seriously undermined (and with it the objectives of the CBD and the NP) if the economic value is not shared fairly and equitably (or not shared at all), with the custodians of biodiversity (who might not necessarily be the same “providers” who benefit under the MAT of a strictly bilateral system)."
As I reflected on in an earlier post, bilateral ABS agreements may be a significant source of benefit sharing for megadiverse countries, but can be less effective for benefit sharing with indigenous peoples and local communities. First this may occur because the current territories of indigenous peoples may be much smaller than their original extent. In may place of the world, there is ample evidence that biodiversity has been maintained and enhanced through traditional practices (e.g. burning in high-altitude "yards" in North America, clam gardening by American Indians that assembled ecosystem engineers to increase local biodiversity, maintenance of intermediate successional states, etc.). focusing only on territorial rights can seriously underestimate real contributions to the maintenance of biodiversity. Area-based proxies can also underestimate contributions in pooled schemes because it can ignore disproportionate positive contributions that can originate from biodiversity hotspots maintained by indigenous peoples and local communities. Just because traditional knowledge may be transboundary or cannot be localized to a single community or set of communities does not mean it is not contributing to biodiversity conservation or should be receive support. Bilateral ABS agreements are important in new product development, but may miss supporting a very large number of practices and knowledge systems for maintaining biodiversity.
Similarly, much of the "natural information" generated by cultivators and indirectly through habitat modification that leads to natural selection on "natural information" is considered by many to be in the "public domain". In terms of recent innovations in technology, such "embodied information" is considered to be protectable, while ancient embodied ancient knowledge is asserted to be in the "public domain". Understand that the concept of the "public domain" is contested, in drawn primarily from copyright law which may be inappropriate, and is largely undefined in law.
Regardless, there is strong resistance to retrospectivity, it is used in exceptional cases to remedy past injustices (e.g. see: Sampford, CJG, Louise, J, Blencowe, S & Round, T 2006, Retrospectivity and the rule of law , Oxford University Press, Oxford; New York). The Nagoya Protocol does not accept the principle, but Article 10 can be seen to give forward-looking effect to the problems of such historical contributions. In order to ensure continuing contributions in the future "biocultural hotspots" need to actively supported and maintained in order for them to generate cultural ecosystem services (culturally maintained biodiversity and agrobiodiversity) that are the focus of ABS. In other words, the GMBSM has the potential to balance the focus on bilateral transactions to ensure that the biocultural contexts for generating and sustaining biodiversity at multiple levels are supported.
There are some examples from the commodities trade. In the 1990s, if memory serves, the European Union began to return a border tax on coffee to the provider countries, No conditionality was placed on the funds, and many countries put them into general budgets. Colombia, however, made the decision to put the fees into a fund for environmental repair and enhancement in coffee growing regions. In other words, the funds were used to mitigate the environmental damages of coffee growing.
Properly constructed, a GMBSM could assemble funds for creating national, regional or global biocultural heritage trusts targeted to projects and monetary/non-monetary benefit-sharing activities that directly benefit both indigenous peoples and local communities. Pooled funds can supplement the benefits coming from bilateral benefit sharing arrangements, and be distributed among many communities.
The frameworks developed should focus on the concept of "conjointness" ("co-"), such as in the co-protection, co-production, co-facilitation etc. of both traditional knowledge and biodiversity. The "natural information" and "bounded openness" approaches have been discussed, but generally by only a few advocates and, at least in my mind, need a lot more clear explanation and mutual understanding before they could serve as premises for legal measures. Indigenous peoples and local communities aren't generally trying to maximize efficiency, research, innovation, minimize transaction costs, etc. Many express the primary desire to maintain ways of life. This should be understood in at least two senses. First, as the Nagoya Protocol recognizes, they should be able to have to opportunity to continue their traditional practices. Equally importantly, they should have access to environments that enable them to actualize their opportunities. In a famous case in the United States, the Supreme Court in the Boldt Decision held that treaty language with the Indian tribes in the Pacific Northwest guaranteed them a sovereign right to 50% of the take of the fish. But Judge Bolt in the decision that led to the constitutional review also held that that treaties not only guaranteed a right to go fishing, but that the tribes also have a right to catch fish. In order to catch fish, there must be sufficient habitat and management context to ensure that fish are available to catch. By directing funds to maintain these contexts, a GMBSM can address some of the limitations of both bilateral agreements and proposed "commons" models.
Finally, these arguments related to what I believe are deficiencies that need to be addressed in any global commons model. Local commons are perpetual, or at least last as long as communities continue to maintain them. In a local commons, both traditional knowledge and resources are co-protected, co-monitored, co-enforced and so on through norms, institutions, customs, law, protocols and social regulation. These change over time, but the conjoint interactions are continuously adjusted and maintained. Commons models of research and benefit sharing do not seem to me to capture and respect the multiple dimensions of meaning and value of either traditional knowledge or associated genetic resources of indigenous peoples and local communities. Traditional knowledge and genetic resources are probably not believed by most IPLCs to be simply information, natural or otherwise. And they will be concerned not only in the direct benefits from bilateral or multilateral ABS, but also in potential boomerang and crowding out effects (e.g. in TK is used as a lead in developing biotech products that are adopted and promoted in such a way to crowd out traditional landraces or practices).
Much of the thinking around the negotiation of the Nagoya Protocol was around the bilateral negotiation model of user and provider. And it remains an important context of access, But as Pierre points out, negotiators were aware of other contexts, and not simply willfully ignorant, or these contexts, which is why Article 10 was developed.
I would like to focus on what Pierre du Plessis wrote in post [#5191]:
"The Protocol further recognises “that public awareness of the economic value of ecosystems and biodiversity and the fair and equitable sharing of this economic value with the custodians of biodiversity are key incentives for the conservation of biological diversity and the sustainable use of its components”. This principle would be seriously undermined (and with it the objectives of the CBD and the NP) if the economic value is not shared fairly and equitably (or not shared at all), with the custodians of biodiversity (who might not necessarily be the same “providers” who benefit under the MAT of a strictly bilateral system)."
As I reflected on in an earlier post, bilateral ABS agreements may be a significant source of benefit sharing for megadiverse countries, but can be less effective for benefit sharing with indigenous peoples and local communities. First this may occur because the current territories of indigenous peoples may be much smaller than their original extent. In may place of the world, there is ample evidence that biodiversity has been maintained and enhanced through traditional practices (e.g. burning in high-altitude "yards" in North America, clam gardening by American Indians that assembled ecosystem engineers to increase local biodiversity, maintenance of intermediate successional states, etc.). focusing only on territorial rights can seriously underestimate real contributions to the maintenance of biodiversity. Area-based proxies can also underestimate contributions in pooled schemes because it can ignore disproportionate positive contributions that can originate from biodiversity hotspots maintained by indigenous peoples and local communities. Just because traditional knowledge may be transboundary or cannot be localized to a single community or set of communities does not mean it is not contributing to biodiversity conservation or should be receive support. Bilateral ABS agreements are important in new product development, but may miss supporting a very large number of practices and knowledge systems for maintaining biodiversity.
Similarly, much of the "natural information" generated by cultivators and indirectly through habitat modification that leads to natural selection on "natural information" is considered by many to be in the "public domain". In terms of recent innovations in technology, such "embodied information" is considered to be protectable, while ancient embodied ancient knowledge is asserted to be in the "public domain". Understand that the concept of the "public domain" is contested, in drawn primarily from copyright law which may be inappropriate, and is largely undefined in law.
Regardless, there is strong resistance to retrospectivity, it is used in exceptional cases to remedy past injustices (e.g. see: Sampford, CJG, Louise, J, Blencowe, S & Round, T 2006, Retrospectivity and the rule of law , Oxford University Press, Oxford; New York). The Nagoya Protocol does not accept the principle, but Article 10 can be seen to give forward-looking effect to the problems of such historical contributions. In order to ensure continuing contributions in the future "biocultural hotspots" need to actively supported and maintained in order for them to generate cultural ecosystem services (culturally maintained biodiversity and agrobiodiversity) that are the focus of ABS. In other words, the GMBSM has the potential to balance the focus on bilateral transactions to ensure that the biocultural contexts for generating and sustaining biodiversity at multiple levels are supported.
There are some examples from the commodities trade. In the 1990s, if memory serves, the European Union began to return a border tax on coffee to the provider countries, No conditionality was placed on the funds, and many countries put them into general budgets. Colombia, however, made the decision to put the fees into a fund for environmental repair and enhancement in coffee growing regions. In other words, the funds were used to mitigate the environmental damages of coffee growing.
Properly constructed, a GMBSM could assemble funds for creating national, regional or global biocultural heritage trusts targeted to projects and monetary/non-monetary benefit-sharing activities that directly benefit both indigenous peoples and local communities. Pooled funds can supplement the benefits coming from bilateral benefit sharing arrangements, and be distributed among many communities.
The frameworks developed should focus on the concept of "conjointness" ("co-"), such as in the co-protection, co-production, co-facilitation etc. of both traditional knowledge and biodiversity. The "natural information" and "bounded openness" approaches have been discussed, but generally by only a few advocates and, at least in my mind, need a lot more clear explanation and mutual understanding before they could serve as premises for legal measures. Indigenous peoples and local communities aren't generally trying to maximize efficiency, research, innovation, minimize transaction costs, etc. Many express the primary desire to maintain ways of life. This should be understood in at least two senses. First, as the Nagoya Protocol recognizes, they should be able to have to opportunity to continue their traditional practices. Equally importantly, they should have access to environments that enable them to actualize their opportunities. In a famous case in the United States, the Supreme Court in the Boldt Decision held that treaty language with the Indian tribes in the Pacific Northwest guaranteed them a sovereign right to 50% of the take of the fish. But Judge Bolt in the decision that led to the constitutional review also held that that treaties not only guaranteed a right to go fishing, but that the tribes also have a right to catch fish. In order to catch fish, there must be sufficient habitat and management context to ensure that fish are available to catch. By directing funds to maintain these contexts, a GMBSM can address some of the limitations of both bilateral agreements and proposed "commons" models.
Finally, these arguments related to what I believe are deficiencies that need to be addressed in any global commons model. Local commons are perpetual, or at least last as long as communities continue to maintain them. In a local commons, both traditional knowledge and resources are co-protected, co-monitored, co-enforced and so on through norms, institutions, customs, law, protocols and social regulation. These change over time, but the conjoint interactions are continuously adjusted and maintained. Commons models of research and benefit sharing do not seem to me to capture and respect the multiple dimensions of meaning and value of either traditional knowledge or associated genetic resources of indigenous peoples and local communities. Traditional knowledge and genetic resources are probably not believed by most IPLCs to be simply information, natural or otherwise. And they will be concerned not only in the direct benefits from bilateral or multilateral ABS, but also in potential boomerang and crowding out effects (e.g. in TK is used as a lead in developing biotech products that are adopted and promoted in such a way to crowd out traditional landraces or practices).
Posted on behalf of Marwan al Bassatneh, Arab Centre for the Studies of Arid Zones and Dry Lands (posted late as original message was mis-directed):
Dear All,
We think The GMBSM shall work on a mandatory basis, there is a clear need for specific and clear definition of the trigger points for when benefits shall be shared. The abscess of such, will lead to the set-up of a system which does not create any sharing. Here the learning of the extremely narrow definition of trigger-situations in the International Treaty on Plant GR for Food and Agriculture needs to be learnt from so the triggers are more functionally defined in the GMBSM.
Dear All,
We think The GMBSM shall work on a mandatory basis, there is a clear need for specific and clear definition of the trigger points for when benefits shall be shared. The abscess of such, will lead to the set-up of a system which does not create any sharing. Here the learning of the extremely narrow definition of trigger-situations in the International Treaty on Plant GR for Food and Agriculture needs to be learnt from so the triggers are more functionally defined in the GMBSM.
