Negotiating an International Regime for Access and Benefit Sharing and its Impact on Microbial Commons

1. Negotiations for an International Regime for Access and Benefit Sharing and the Microbial Research Commons Stefan Jungcurt International Institute for Sustainable Development (IISD)

2. New element of international regulation of MGR management Phytosanitary and quarantine requirements Biosafety and Health ABS Standards and taxonomy Access to and use of MGR Biosecurity Handling packaging and transport IPRs How will the new regime affect the opportunities to establish and maintain microbial (semi-) commons?

3. Brief History

4. A Regime in 2010? “This process is where climate change was at in the seventies…” “… it took three decades for the science on climate change to penetrate the international policy process”

5. State of the Negotiations • Outcome of ABS 7 (April 2009): • 35 pages, more than 2000 square brackets (i.e. instances of disagreement) • ≈ 50% of the regime • ABS 8 to address remaining 50% (more text and brackets • ABS 9 to conclude negotiations ! • Highly unlikely that “regime” can be adopted in 2010 (-) impact on microbial research commons uncertain (+) opportunities to engage and influence

6. Text on Scope The International Regime on Access and Benefit-sharing applies to [all] [biological resources,] genetic resources, [including viruses and other pathogenic [, as well as potentially pathogenic] organisms and genetic sequences regardless of their origin] [derivatives,] [products] [benefits arising from commercial and other utilization] as well as [to their] [associated] traditional knowledge, innovations and practices [covered by the Convention on Biological Diversity] [in accordance with Article 8(j)] [within national jurisdiction and of a transboundary nature] [in accordance with the relevant provisions of the Convention on Biological Diversity] [subject [and mutually supportive] to other [relevant] international obligations] [and without prejudice to other international obligations]. [The International Regime will also apply to genetic resources of migratory species that for natural reasons are found on the territories of the Parties.] • Which microbial genetic resources will be covered? • Which activities will be affected?

7. ABS Politics • “Grand Bargain” of the CBD • ABS in exchange for developing country participation • ABS to finance biodiversity conservation • Influence of Agenda 21 • National sovereignty • Commoditization logic • Expectations of developing country suppliers • Focus on monetary benefits (national income from trade in genetic resources) • ABS to counterbalance IPRs in user countries and secure property rights over GR (enclosure) • “Biopiracy” as modern form of colonialism • User countries • Focus on facilitating access • No restrictions/conditions on IPRs

8. ABS Politics • Commoditization logic is at odds with the principles of a research commons • Fight about the distribution of benefits dominates discussion on creation of benefits (“blockbuster” phenomenon) • Up to ABS 6 very little involvement of the scientific community Rays of light: • Increasing recognition of interdependence in genetic resources • Increasing recognition of the link between access and use • Supplier countries with emerging biotech sectors show interest in joint efforts in research and development (in informal talks!) • Some cite ITPGR as possible model for other genetic resource

9. Involvement of Experts and User Groups • CBD Technical Expert meetings • Certificates (2007) • Concepts, Terms, working definitions and sectoral approaches (2008) • Compliance (2009) • Traditional knowledge (2009) • Other initiatives • Workshop on non-commercial research (Consortium for the Barcode of Life, 2008) • Sectoral linkages (UNU-IAS/Japan Bioindustry Association - 2008) • Traditional Knowledge (Austria, 2008) • Too little too late • Recommendations are not or only partially reflected in negotiations

10. Nothing is agreed until everything is agreed! Corner Stones and Main Components

11. Corner Stones • Legally binding • Protocol to CBD • Ratification only by CBD Parties • Unknown ratification period • Participation may be limited • Objective: secure compliance with national ABS legislation • International minimum standards • model domestic legislation • Model clauses for MTAs • Certificates

12. Access • International Access standards (that do not require harmonization of domestic legislation) • Ensure all elements of ABS are covered • Prior Informed consent • Mutually agreed terms • Disclosure requirements • Clarity and transparency • Legal certainty • Model domestic legislation • Supplier countries oppose standardization of access legislation -> increased transaction costs

13. Benefit Sharing • Sharing results of research and development on mutually agreed terms • Access to research results • Technology transfer • Participation in research activities/joint activities • International minimum conditions and standards • Option for multilateral sharing when origin is unclear or resources exist transboundary • Trust funds for transboundary situations

14. Compliance • International understanding on misapropriation/misuse (def. of biopiracy) • Sectoral menus of model clauses for MTAs • Codes of conduct for important user groups • Best practice codes of conduct • Tracking system and information exchange • Research funding agencies to require compliance with ABS requirements • Disclosure requirements

15. Certificates • Internationally recognized certificate issued by a domestic competent authority • Minimum information • Details of supplier, user and rights holder • Unique identifier • Subject matter • Geographic location of access • Proof of prior informed consent • Uses permitted and restricted • Conditions of transfer • Confirmation of compliance with domestic access requirememnts

16. Certificates • Other information • Databases for evidence of compliance/progressive compliance with PIC and MAT • Patent application databases • Integration of taxonomies • Use of Barcoding and linking with unique identifiers • Other ideas • Use of existing tracking procedures • Automatic issuing of certificates based on compliant MTAs • Consolidation with existing permitting systems • Standards for recording of collections

17. Possible Implications • Restrictions through domestic access laws • Increased transaction costs due to lack of harmonization • Lack of recognition of diversity of user practices • Disclosure requirements? • Origin of MGRs?

18. Options and Opportunities • Provide input to the discussion on “sectoral” approaches • Raise awareness of ongoing transformations (existing and changing practices) • Proposals for different research/user communities (communities of practice) • Learn from ITPGR experience? • Use international networks to coordinate proposals and lobbying efforts with national governments • Ensure that COP 10 decision does not close the door to these discussions