In our second lesson, we evaluate strategies to equitably allocate the benefits of the world’s biodiversity (i.e. “life on earth”), most of which is concentrated in developing countries.
Our time together won’t be spent studying these issues in the abstract. Rather, we’re going to run a simulation of an international treaty negotiation. Each person in the class will be assigned to a role in a national, regional or non-governmental delegation negotiating the terms of what became the Nagoya Protocol. Here’s the background you need to prepare for, or follow up on, that negotiation exercise.
The CBD and its Protocols
The Convention on Biological Diversity includes provisions on “access and benefit sharing” (or ABS for short), which led to the recent Nagoya Protocol. The issue of “liability and redress” for potential harms caused by living modified organisms (LMOs) are dealt with in the Cartegena Protocol on Biosafety and the most Nagoya – Kuala Lumpur Supplementary Protocol. We’ll review the texts of these international legal instruments closely during class.
Access and Benefit Sharing
Much of our discussion will be oriented around the successes of a working group on access and benefit sharing. This group worked for a long time, culminating in a marathon meeting (actually, a six-year series of meetings) that began in Cali, Columbia, continued in Montreal, Canada, and finally wrapped up in Nagoya, Japan. Hence the “Nagoya Protocol.” You can read the news reports about the conclusion of those negoatiations and subsequent developments here, here and here, as well as in this press release. More generally, the best source of news on the topic of biodiversity and genetic resources is Intellectual Property Watch.
As for what you should read about the CBD and Nagoya Protocol for the purpose of our in-class negotations simulation, or an exam response to this issue, I suggest this awareness-raising material on ABS. If you’re either confused or interested in more details about the CBD in general, I can’t think of any better, more comprehensible introduction than this book chapter:
- Susan Bragdon, Kathryn Garforth and John E. Haapala Jr., “Safeguarding Biodiversity: The Convention on Biological Diversity,” in Geoff Tansey and Tasmin Rajotte eds., The Future Control of Food: A Guide to International Negotiations and Rules on Intellectual Property, Biodiversity and Food Security (Earthscan/IDRC/QIAP, 2008) 82-114.
Plant Genetic Resources for Food
The CBD isn’t the only agreement imposing obligations about access and benefit sharing. But other international treaties establish different rules. We’ll begin now to delve into some of the details surrounding the Food and Agriculture Organization’s (FAO’s) “plant treaty” (to be studied more fully later in the mini-course). To understand similarities and differences between approaches, please take a look at:
- Kathryn Garforth and Christine Frison, “Key Issues for the relationship between the Convention on Biological Diversity & the International Treaty on Plant Genetic Resources for Food and Agriculture,” Quaker International Affairs Programme Occassional Paper No. 2 (Quaker, July 2007)
Traditional Knowledge
Another incredibly complex issue is layered over all issues of access and benefit sharing: what to do about the traditional knowledge of indigenous and local communities? We’ll look at provisions from the CBD and the Plant Treaty pertaining to this matter. And we’ll also examine the activities of a WIPO intergovernmental committee (known as “the IGC”) working on traditional knowledge, genetic resources and traditional cultural expressions (TK, GR and TCE). Look at the mandate and purpose of this alphabet soup to find out how it is supposed to come up with a proposed legal text (i.e. a potential new treaty), which is already overdue.
Students interested in a more detailed study of the intersections among these issues might wish to read a great book on the topic:
- Charles McMannis, 2007. Biodiversity and the law : intellectual property, biotechnology and traditional knowledge.
