[Commentary] CBD: Can the cure kill?

The Convention on Biological Diversity (CBD) celebrated 25 years of coming into force this year. “Celebrating 25 years of action for biodiversity” was the theme for the International Day of Biological Diversity on May 22. Yes, it is the silver jubilee year and for majority of conservationists it is the time for celebration!

On June 29 2018 an interesting paper appeared in the journal Science titled When the cure kills – CBD limits biodiversity research authored by more than 175 experts, including several from India that elaborate how the Convention curtails research and collaboration in biodiversity. Interesting indeed, but needs a reflection.

As someone who has been associated with the CBD processes in various capacities, including as the chief of Biodiversity Programme at United Nations Environment Programme (UNEP) with a focus on the Convention (the CBD is a UNEP Convention), I have followed the negotiations and discussions on implementation very intimately for almost 25 years now.

The Convention and its Protocols, namely the Cartagena Protocol on Biosafety, 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 and the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress, have all matured during the last 25 years in terms of both their focus and implementation, supported by the Parties to the CBD.

Like in any international, multilateral environment agreement, discussions and decisions at the level of the Convention are a set of broad intentions to deal with realising the objectives of the Convention. With the interests of 196 countries, with varied socio-economic and political conditions, at stake,  ideal situations and comprehensive decisions are difficult. As a seasoned negotiator one can simply say that the Convention will provide for something for everyone but not everything for someone.

Discussions on ethics and equity initiated by developing countries

Let me provide a quick analysis and review of how things evolved within the CBD during the past 25 years, all guided explicitly by the member states or Parties to the Convention.

When countries started negotiating the Convention in the lead up to the final Act in Nairobi, before the adoption of the Convention in 1992, the focus was on conservation and sustainable use of biological resources for posterity, using the guidance from Brundtland Commission.

Developing countries realised that the one key negotiating strength they have in the process is the wealth of biological and genetic resources and associated traditional knowledge. At the same time, the apprehension was the rapid progress made through new and innovative scientific and technological applications such as biotechnology and the implications of new and emerging regime of privatising knowledge and resources through Intellectual Property Rights (IPRs) would undermine the ability of developing countries to use the wealth of biological resources for their benefit if the financial and technology rich developed countries would use the resources and seek IP protection, depriving them of the benefit of the resource presence.

Thus, discussion on access to genetic resources and benefit sharing (ABS) was born where countries wanted prior informed consent to be the basis of using the sovereign wealth of their countries for commercialisation purposes.

For the first time, the concept of ethics and equity got included in the discussions and Article 15 of the Convention was negotiated and agreed upon.

On the face of it, there was no one questioning the need or importance of having this clause but the trouble started when countries began to explore ways and means to implement the provisions.

The first challenge was to translate the intent of consent, agreement to use and share the benefits equitably to action on the ground in the absence of any experience on how to do this. The second challenge was to differentiate commercial and non-commercial research and the third was to define the ownership of the resources and associated knowledge to share the benefits fairly. The fourth challenge was to determine the value of the resources and associated knowledge to come up with the nature and volume of benefits, both monetary and non-monetary, that is equitable and the fifth was the recognition of jurisdictions of the ABS contracts where countries need to recognise and honour the ABS frameworks of other countries from where the resources were sourced.

The premise was to facilitate access for prospecting and benefit sharing

These aside, the discussions to determine the implementation framework on ABS, started with a clear understanding that if countries are rich in genetic resources, they need to be shared and used to make benefits and such use should be based on principles of prior informed consent, mutually agreed terms of use and transfer and a material transfer agreement that included benefit sharing. Therefore, the premise was to ‘facilitate’ access to the resources so that prospecting can happen and benefit flow can begin.

However, the focus of ABS shifted from being a ‘facilitative’ regime to a ‘restrictive’ regime very soon. The simple apprehension was that it was improper to provide access and fight misappropriation but better to restrict providing access. This was a turning point in the ABS discussions.

With limited capacities, understanding and resources to implement a restrictive regime, providing access to genetic resources almost came to a standstill, including for research globally. This was a blow to collaborations, prospecting and use of country’ s genetic resources per se.

How to correct the situation

Since 1994, millions of dollars have been spent on building capacities and awareness regarding ABS. To a large extent, the focus of these activities has been on elaborating the elements of ABS frameworks and explain ing the meaning and contents of the issues related to ABS. In spite of this, examples of successful ABS frameworks cited even today are at least a couple of decades old. Does this mean that there have been no successful ABS agreements? No, certainly not. Hundreds of successful ABS agreements do exist but what is lacking is the flow of benefits from these agreements which are yet to become visible.

For example, in India, several hundred ABS agreements were made but the benefit accrual has been limited. Even if benefits are accrued, they have not yet been shared with the communities for conservation and related action.

Misconceptions about ABS

Here are some common misconceptions about access and benefit sharing (ABS) as outlined in the Convention. First, the ABS regime has to be restrictive to ensure country will benefit from the resources. This is completely incorrect. Merely possessing biodiversity does not mean anything. Unless prospecting happens and benefits accrue, the purpose of having the ABS regime will not be served. For this, countries and communities need to make an inventory of resources as well as attract potential prospecting opportunities.

Second, having an ABS framework will make country and communities richer by millions of dollars. This is untrue. Merely having the resources and a framework does not mean anything. Even after 25 years of implementing actions related to ABS, no single country has made enough monetary gains by using ABS frameworks. This is largely because not all ABS agreements result in making commercially successful products nor the research results in tangible gains. Also, countries have not yet tried using ABS as an innovative financing mechanism, though opportunities abound.

Third, ABS regime will stop misappropriation of genetic resources. Certainly, this is not true. The regime has to be complied with by all stakeholders and there should be enough awareness at the local level where resources get accessed about the dos and don’ts of an ABS framework.

Fourth, all research and development should be covered by ABS agreements. This is also not true. Non-commercial research and certain collaborations are better managed out side the purview of ABS frameworks to make it easy for research community to undertake research and collaborate.

Lastly, having an ABS framework will protect the IPRs and community rights is another misconception. The IPR regime related issues are country specific and community rights- based approaches also differ.

Implementation has to be simple and progressive

In spite of years of work on building capacities and awareness on these issues, countries are still struggling to understand some of the implications of the above.

While there is merit in the argument that the CBD did make research and collaborations more challenging, it is neither the intent of the Convention nor the manner in which decisions are made at the global level. As with any international, legally binding agreement, the CBD has to be implemented at national level and countries have the sole prerogative to make things simple and progressive.

A lack of understanding, use of inappropriate and notional experiences, weak implementation capacities and over-enthusiasm to protect the resources and associated knowledge have all pushed the third objective of the CBD into a corner attracting criticism of the Convention as a whole.

Unless countries understand the true spirit of the Convention and the related provisions ranging from having sovereign rights to stopping misappropriation and sharing the benefits with the providers of the resources, the Convention will continue to struggle in achieving the objectives.

To sum up, it is the country frameworks that need to be designed to overcome the implementation challenges of CBD, provided the policy makers and implementers understand the value and relevance of the Convention.

[Balakrishna Pisupati is chairperson, FLEDGE, former chairperson of the National Biodiversity Authority, and has spent many years working on biodiversity policy at UNEP and IUCN.]

Read a commentary by Priyadarsanan Dharma Rajan and K. Divakaran Prathapan who were part of the lead authors of the paper in Science where they argue that the CBD is detrimental to taxonomic research: [Commentary] CBD obstructs biological research that needs international collaboration