These comments are made in my personal capacity and should not be mistaken for official African negotiating positions, although they are partly based on views expressed by the African Group in the past.
Separate threads make understanding linkages harder, so I’m combining my thoughts in one intervention, for the sake of coherence.
Coming into the discussion late, it strikes me that most of the contributions made so far are essentially rehashing arguments from long ago, in some cases from before the CBD or Nagoya Protocol were agreed.
We cannot go on like this: science (or the IPBES, anyway) clearly says it is now or never, that we must bring about “transformative change” that will “bend the curve on biodiversity loss” and “lead to a new deal for people and nature” creating “a nature-positive world” where humanity is “living in harmony with nature” by 2050.
Let us be clear about what is at stake here: without a substantial agreement (not procedural, not just another AHTEG), including numerical targets that can be monitored and verified, on how to share the benefits of DSI:
- There will be no agreement adopted in Kunming on any Post- GBF;
- Progress on enhancing the functioning of the multilateral system of ABS under the ITPGRFA will be further delayed;
- The FAO Commission on Genetic Resources for Food and Agriculture will be frustrated in its efforts to develop guidance for national ABS measures on the various sub-sectors of GRFA;
- The UNGA negotiations on a BBNJ instrument will face severe difficulties;
- Efforts at WHO to negotiate a “Pandemic Treaty”, or extend the PIP Framework to seasonal influenza, or generally improve ABS measures related to pathogens, will struggle to achieve effective implementation, even if the Covid-19 momentum could maybe be used to force through an agreement; and
- ABS will not make the potential contribution to resource mobilization that it is capable of, while developed countries preoccupied with post-Covid economic recovery will not cover the funding gap, and biodiversity will continue to decline, in many places probably beyond recovery.
Although JF Kennedy was wrong about the Chinese word for “crisis” being composed of the symbols for “danger” and “opportunity”, we nevertheless do face great dangers in the present crisis, but also have great opportunities to bring about global change, if we are prepared to go beyond a narrow conception of “DSI” and are brave enough to “rethink ABS”, as many have suggested we do.
Against this background and before going into finer details I have the following broad observations on the three threads in this discussion:
1. Policy options categories and other options
Policy, like politics, is the art of the possible. While I have great empathy for the unenviable position of the Secretariat, who must remain neutral and be seen to remain neutral at all times, it’s not really all that helpful to present policy options that have no chance of being agreed because they don’t meet the expectations of some (or any) of the stakeholder groups involved. It’s a good idea, as others have pointed out too, to bear in mind that some of the policy option categories are not mutually exclusive or incompatible (e.g. capacity development will probably form part of whatever solution is eventually agreed, not least because of CBD Articles 16, 17, 18 and 19; a multilateral system of benefit sharing can coexist with bilateral control of access in specific cases).
2. Criteria Framework for assessing policy options
In my view the most important criteria are that the agreed solution must:
- Guarantee substantial financial resources to support conservation and sustainable use through fair and equitable sharing of monetary benefits
- Avoid imposing additional bureaucracy, compliance burdens or transaction costs on non-commercial basic research and the DSI infrastructure that supports it
- Significantly improve ease and speed of access, and lower the associated transaction costs for both users and providers
- Encourage, facilitate, and reward innovation
- Respect sovereign rights of States and human rights of IPLCs
- Ensure legal certainty and predictable costs for users, to encourage investment
- Build on and be compatible with existing international, national, and customary ABS legal systems
- Transfer technical capacity and skills to developing countries to enable green and sustainable socio-economic development, to meet the SDGs
- Be fit for the post-2020, post-Covid 19, hyperconnected digitalised information-driven global economy
- Be future-proof against technological developments
3. Policy options feasibility and appropriateness
- Considering the urgency and time constraints, policy options are only feasible if they can be agreed and implemented immediately, without needing new international legal instruments to be negotiated, or requiring substantial changes to national ABS legal systems
- They are only appropriate if their benefits will clearly and unambiguously outweigh the cost of implementing them
- In addition to being feasible and agreeable, policy options must also be politically possible, i.e. must be of a form that can be adopted as part of the Post-2020 GBF by the decision makers gathered in Kunming, and later supported in other bodies like the ITPGRFA, FAO CGRFA, WHO, UNGA BBNJ etc.
Additional thoughts and comments
DSI is a placeholder term; regardless of whether it is eventually retained or not, or what agreed meaning is assigned to it, it will remain just one of the tools (albeit increasingly the most popular and versatile spanner in the toolbox) for “doing biology”, from taxonomy through environmental surveys to plant and animal breeding, genome editing, synthetic biology, industrial biotech, drug design etc. In the context of “utilization of genetic resources” however, DSI is not fundamentally different from ancient technologies such as the firestick, axe, net, bow and arrows, hoe, plough, sickle, scythe, or their more modern mechanised versions (chainsaws, rifles, humongous agricultural machines, feedlots, bioreactors, …) It would be a mistake to focus only on the tools and not on the work that is done with them, and their impacts on biodiversity and society.
Likewise Intellectual Property, including patents, are simply (policy) tools for incentivising and rewarding innovation. Yes, using patents as legal tools for biopiracy has been very contentious in the CBD, partly due to timing – the WTO TRIPS agreement bringing in patents on life in 1995, shortly after the CBD was adopted. But changes to the international IP system will not be brought about in the CBD and, judging by the 20 years of mostly fruitless deliberations in the WIPO IGC, will take a long time to achieve even in the proper forum. I would therefore suggest the best way to treat IP in the discussions about ABS for DSI is to see them as tools that (sometimes) add additional benefits to specific forms of GR utilization for a limited period. How these additional benefits be captured and shared to support conservation and sustainable use of biodiversity seems to me a more productive line of enquiry.
Exactly because patents only sometimes (and then quite randomly) result in increased benefits being generated, I do not agree with Vogel et al that they are the appropriate “boundary” (or trigger) to use in a bounded openness system (which I otherwise support, in most respects). It would be much easier, effective, durable (even expired patents can still generate substantial benefits, e.g. through generic products) and – importantly – far less divisive to set the boundary/trigger for benefit sharing at the level of commercial sales. To put this in a different way: it doesn’t really matter how a user generates monetary benefits (using DSI or not, using IP protection or not) as long as a fair and equitable share of those benefits is mobilised to support conservation. I will return to how this could best be done below.
Since I have now mentioned bounded openness, let me make some further comments on that concept, which I believe is key to reaching a workable agreement:
- Insights derived from the economics of information (especially the near-zero cost of copying) are obviously highly relevant to any discussion about governing natural information but cannot be transferred wholesale without some reflection on how natural information (in the genetic sense) is originally generated (through evolution) and reproduced (through ecosystem succession processes).
- If I understand the proposed model correctly, granted IP will trigger a 15% (negotiable for different sectors) royalty that will be allocated to countries of origin proportionately to their share of the habitat of the organism involved, as an incentive for maintaining that habitat (in earlier versions the relationship between the range states was also characterised as a “cartel”). Where this formula is impractical, for various reasons, the benefits will be used to cover the cost of administering the system and/or used to support global taxonomy. To be frank, I can’t see this working (in the sense of producing good conservation and sustainable use outcomes) except in a limited set of circumstances. If such a system had been implemented 30 years ago AND the promised technology transfer, capacity development, joint R&D and shared IP had also been put in place it might have worked. But considering the scale and intensity of the biodiversity crisis we face now I can’t see how tinkering with market corrections will translate into states (and IPLCs) agreeing to bear the opportunity costs of foregoing more lucrative exploitative uses of habitats.
– In my view we need a system that is both more direct, collecting money where it is made and spending it where biodiversity needs it, and at the same time more hands-off about what happens in the open part, before the boundary is reached. Another way to put this is that we need to decouple access from benefit sharing to the extent possible. If “rents” are to be extracted (I share Mariana Mazzucato’s intense dislike of the concept, even as I understand that most economists use it as a neutral term-of-art) then let those rents accrue to global biodiversity, through a project-based approach that funds verifiable activities selected according to a scientific process (e.g. through cyclical priority-setting by the IPBES), administered by established institutions (e.g. the GEF) and implemented by actual custodians of biodiversity on the ground (IPLCs, local governments, biodiversity-rich states, maybe even NGOs) . Such project-based approach to benefit-sharing has worked well enough in the ITPGRFA, despite its multilateral system of ABS having been woefully inadequate at generating benefits from user-based payments. Considering that the biodiversity funding gap runs to hundreds of billions of dollars, I don’t believe fungibility will be a serious impediment to such a system.
Let me turn next to the small but important matters of access and open data. As Akio Yamamoto pointed out [#2081] the bilateral architecture of ABS under the CBD and NP is already baked in and would be very difficult to change in international law, without enormous upheavals and very substantial delays. We will therefore have to accept the existence of these bilateral instruments, as well as the reality that many countries will not compromise their sovereign rights over genetic resources in a wholesale way, and creatively design (an) improved ABS system(s) around them. One legal precedent for how this can be done is found in the ITPGRFA, where the Parties “in the exercise of their sovereign rights” agreed to establish a multilateral ABS system (Treaty-making being a qualified compromise of sovereignty anyway).
In this regard it’s interesting to note that many states are ambiguous about bilateral ABS: in the context of Nagoya Article 10, for example, Switzerland adamantly opposes even talking about potential modalities for a global multilateral benefit sharing mechanism, but at the ITPGRFA they are the formal proponent of a decision to expand the multilateral system, and at WHO they have offered to host a bio-depository for pathogens under the proposed “pandemic treaty” (which has not yet settled on a multilateral ABS mechanism but is being pushed by the EU and others in the direction of a multilateral access system; benefit sharing can presumably wait).
The problem with bilateral ABS, as we have heard loudly and repeatedly from the ICC and some academic research sectors, is that national ABS measures can take a very long time or even be completely dysfunctional, preventing access, research and innovation. Stakeholders from the user end of the spectrum are understandably reluctant to see this situation replicated for DSI. Many are also keen to have easier access mechanisms for specific categories of GR (pathogens, GRFA). The problem here is that tightly controlling access through PIC and MAT is the ONLY way developing countries can hope to extract benefit sharing (even when it is often a forlorn hope of some unspecified benefits a long time hence). Unless this impasse can be broken more countries will seek to control the use of DSI through MAT at the time of access and, as legal capacities grow, more and more users will find themselves in court for violating legal or contractual provisions governing DSI. As Henry Novion pointed out [#2090] only a very small part of biodiversity has been sequenced and the ABS community should find a way to keep this work unrestricted – but not at the expense of foregoing benefit sharing.
There are many stakeholders in this discussion who seem to focus mainly on maintaining open access to the sequences already deposited in the INSDC system (and its polyps). Their case might be stronger if they added a call for private proprietary data to be openly available too. Adding new sequences to the collections will at some stage require PIC and MAT for access to new GR from countries with ABS laws in place. The outcome is likely to be contractually agreed restrictions on the sharing and use of sequences, just as is the case now with proprietary data.
So what can we do to improve access to GR, preserve open access to DSI already shared on the global system, and encourage more open sharing? I would suggest that it will take making providers an “offer you can’t refuse”: a global ABS system that also shares benefits from new and on-going utilisation of GR that has already been accessed, including from ex situ collections, and is collected on all commercial uses of biology, at retail level, to capture maximum value added, spread the burden lightly between billions of consumers, and remove the potential market-distorting (and wasteful) effects of businesses trying to find loopholes.
The benefit sharing target will need to be commensurate with the identified funding gap – say US$500-750 billion/a – and tied to global GDP so that it adjusts automatically for inflation (which might soon spiral out of control due to massive cash printing in response to Covid). Since we’re living in the age of soundbites, one way to phrase it could be “1% of global GDP/a for 30x30”. Another might be “one penny in the dollar for a nature-positive world”. It would certainly help immensely to raise public awareness about biodiversity, which could then be guided into local actions, funded from the global benefit sharing fund. Since this approach is based on the idea that everyone will cooperate enthusiastically and there will be no opportunities for free riding, a legally binding agreement is not required – a voluntary arrangement in the form of a CoP Decision will do nicely, enforced through markets and monitored by consumers and civil society. It will also apply to US firms, with no need for the non-Party to join the CBD. We don’t need another AHTEG or inter-governmental negotiating committee, and we certainly don’t need more studies. Attempting to make it legally binding will simply produce the same outcome as Nagoya: utmost efforts to water down provisions by some developed countries, who then fail to ratify the new instrument anyway.
To be attractive to users this new scheme must of course also generate legal certainty about their rights to utilise not only DSI, but any GR that is not explicitly protected by a sovereign and only made available through bilateral PIC and MAT. I am convinced that, once significant benefits are seen to be flowing into the system, and into on-the-ground conservation, very few states will bother with using access to extract benefits, and then only for endemic species of high cultural or economic value (the national genetic crown jewels, so to speak). For users the deal is straightforward: because the benefits are collected at retail level you can access anything you like and use it in any way you want, as long as it’s legal.
Where would such a system leave non-monetary benefit sharing? A few years ago I looked at this in some detail (and then spectacularly failed to write the final report, but that’s another story) and my impression was that non-monetary benefit sharing is almost exclusively confined to basic research collaborations, based on a collegial approach to scientific enquiry, often driven by the need of foreign researchers for in-country collaborators, guides, interpreters and cultural orientation, and just as often dependent on research grants and/or funding from development assistance. This kind of non-monetary benefit sharing will undoubtedly continue. In some cases the private sector claims that it is sharing non-monetary benefits, but I found very few examples and they were all either a form of in-kind philanthropy (drilling a well for people who harvest your raw material; funding a kindergarten for a community in your supply chain), or else involved respondents confusing societal benefits arising from their profit-making activities (new health products, better crop genetics) for non-monetary benefit sharing.
If you think the amount mentioned above (US$500-750 billion/a, which is based on the funding gap as estimated by the Expert Panel) it unrealistic, consider that WWF estimates ecosystem services to be worth US$125 trillion/a, WEF estimates US$44 trillion of global GDP to be highly to moderately dependent on biodiversity and ecosystem services, and the potential economic opportunity in meeting the SDGs has been put at US$12 trillion. Biodiversity needs to be paid for, and there will be no profits on a dead planet.
In the last two weeks the OECD has announced that it is on the verge of agreeing on a global system for taxing digital businesses, while President Biden called for an agreement on a global minimum corporate tax rate to stop the neoliberal race to the bottom among governments. Maybe we are approaching a point in history where we can have another Bretton Woods, or a humane version of the Washington consensus, in which we change the ABS narrative away from the current zero-sum death-struggle between fiduciary duty seeking to limit costs and states restricting access to raise the resources needed to protect biodiversity.
Maybe one of the transformative changes we manage to make in Kunming will be to move towards an enthusiastic duty, shared by all, to support conservation through sharing the benefits of sustainable use. If we can make the required changes, we can solve not only the DSI issue, but the far more important one of how to live in harmony with a nature-positive world.
But if we don’t manage to change for the better, I guess we can expect to see more of this kind of misleading, counterfactual and downright dangerous misinformation:
International Business Times, 11 April 2021 https://www.ibtimes.com/international-agreement-could-lead-pandemics-worse-covid-19-3178648
by Thomas Cueni, director-general of the International Federation of Pharmaceutical Manufacturers Associations.
This International Agreement Could Lead To Pandemics Worse Than COVID-19
Imagine if China had refused to share Covid-19's genetic sequences with other countries. Vaccine development would have been delayed indefinitely. Monitoring the virus would have been next to impossible.
Thankfully, that didn't happen. Chinese scientists shared the full SARS-CoV-2 sequence on Jan. 10, 2020, thus kickstarting the development of multiple vaccines created in record time.
But such a nightmarish alternative scenario is not farfetched. China could have referred to an international agreement known as the Nagoya Protocol to indefinitely withhold this vital data, even as the death toll soared around the globe.
Just imagine if China had refused to share – someone somewhere else would have had to sequence the virus. Luckily we don’t have to imagine what would have happened if IFPMA had opposed a proposal at WTO to share its patents on vaccines, because that has actually happened, and vaccine production has actually been delayed, as the death toll soars around the world…
Seriously people, come on: we really are better than this.
Enjoy the rest of your weekend.