Dr Chris Lyal studies insects in the Natural History Museum's Department of Entomology, where his speciality is the largest of all beetle groups, the weevils. As well as his research work he is the UK National Focal Point for the Convention on Biological Diversity's Global Taxonomy Initiative and for several years worked as a Programme Officer for the CBD Secretariat. He has visited many different countries both for research and while working with people on biodiversity policy and capacity-building issues.
In an earlier blog I mentioned I’d come back to benefits from genetic resources and the CBD, so I’ll now try to grasp the nettle.
One of the three objectives of the Convention is Fair and Equitable Access to the Benefits arising out of the utilization of Genetic Resources of Biological Diversity. This is the part that receives least attention of all, and which many of the Parties to the Convention want action on. As Bob has mentioned in one of his postings, one of the three outcomes that many countries want from Nagoya is an International Regime on Access and Benefit-Sharing. So what does this mean? One thing it means is a lot of terminology, but as so much of the discussions are terminology-heavy, I’d better go for it.
Under Article 3 of the Convention "States have … the sovereign right to exploit their own resources …". Broadly speaking, this means that the biodiversity of a country belongs to that country, and cannot be exploited without the permission of that country. Article 15 makes it clearer: “Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.”. So if anyone wants to get hold of a ‘genetic resource’ (“genetic material of actual or potential value”) they have to ask the government of the country in which it is found and obey its laws. In practice this may mean getting permission from a variety of bodies and people, including at very local level, to access these ‘resources’. The general mechanism for this is to make it clear what use is going to be made of the resource and get agreement with the provider country (‘Prior Informed Consent’ - PIC) and then agree a form of contract, a ‘Material Transfer Agreement’ (MAT). This will probably have a section on how any benefits are shared. The benefits might be money, if something gets commercialised, or information, or support for conservation, or a host of other things. So far so good. However, different countries have developed legislation in different ways, and there is real lack of clarity on how legislation in one country might be applied to someone from another country who has exploited genetic material without PIC and MAT. That is part of the background for the desire for an International Regime, so that access can be regulated and compliance can be more easily monitored and enforced.
In principle that sounds OK. Stuff growing in my garden belongs to me; you can’t take genes from it without my permission, and if you make money out of those genes I want a cut. In practice, it is a touch more difficult. How does a country know what is being collected and used out, how does it manage the permits it issues, how does it monitor what happens when genetic material is being examined outside the country, and passed between different researchers? Any process put in place is likely to be expensive in time and money; should it apply only to people who are planning to utilise a genetic resource commercially, or to everybody, including those who are carrying out purely academic research with no financial implications? How do you tell which is which? Should the regime apply only to the genetic material or to derivatives (“a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if they do not contain functional units of heredity”). Should this apply to human genetic material? Should it apply to disease organisms, where it might be important to transfer and use genetic material very rapidly? Of course, one doesn’t just take genetic material from the environment, one takes organisms and extracts the genetic material afterwards. Because of this any legislation tends to be applied to specimens that might be collected, because of the potential benefits from the genetic material within them. So should it apply to commodities, such as potatoes? How does it apply to the exotic pot plants so many of us grow at home?
The basis of the discussion is very important; countries have seen and are still seeing money being made by big companies from exploiting genetic information gleaned from organisms they have collected, but no return coming back to the country of origin. The problems in developing a regime that can protect such countries whilst not paralysing other activities in support of the Convention, and can be practically implemented, are considerable. The proposed text of the regime to be agreed at Nagoya is still being negotiated, and as of this morning still contains much text that is bracketed, which indicates that the negotiators have not yet agreed on the appropriate wording. It is important that we have something out of Nagoya that we can take forward, so we can move forward on this area of the Convention.