One important aspect of user-side measures and obligations is embodied in the commitments that countries made under other primary obligations of the CBD, which (apart from general financial obligations of Parties under Articles 19 and 20) relate to ensuring or promoting
source-country participation in scientific research/development based on that country's genetic resources;
technology transfer; and
These responsibilities may not be easily passed through to users. Consequently, any country with jurisdiction over users of foreign-origin genetic resources may need to provide a higher level of direct government action and involvement to meet these commitments.
Article 15.6 identifies one further ABS obligation connected with the use of genetic resources (beyond the obligation to bring about benefit-sharing):
Each Contracting Party shall endeavor to develop and carry out scientific research based on genetic resources provided by other Contracting Parties with the full participation of, and where possible in, such Contracting Parties.
Although Article 15.6 has not been well promoted or developed, its requirements may ultimately be among the most important in Article 15. In essence, these provisions are an affirmative commitment to scientific development, and they apply only to genetic resources.414 On its shoulders, this commitment carries a further obligation – this research shall be developed and carried out with the source country's “full participation” and, where possible, in that country.
At a minimum, Article 15.6 suggests that user governments must either engage in or promote research. At present, however, few governments may be directly involved in the level and volume of scientific study that will enable the development of scientific research programs and activities based on genetic resources, and their implementation in the source country. This suggests a need to allocate funds and incentives for the development of partnerships between user governments and their companies, universities, and (private, parastatal and governmental) research institutions, which are collectively the primary vehicles through which developed countries engage in “scientific research based on genetic resources.”
The other requirements of Article 15.6 seemingly cannot be passed through to industry. In most countries, it is not accepted for the government to compel private companies to establish operations in a particular country, to engage in partnerships or to take other actions, although they may provide incentives and inducements to take this type of action. Moreover, Article 15.6 does not call on governments merely to regulate, but to take action. It seems clear that, in order to bring about this shift in the location (and thus the capacity development) in the genetic research field, it will be necessary for governments to take action that provides incentives or encouragements to companies that would otherwise be unlikely to under-take the additional expense and regulatory demands of developing foreign research projects and facilities.
To date, there has been little information provided through CBD reporting and similar processes, regarding any country's concerted effort to implement Article 15.6. To some extent, this reticence may be caused by the same internal political factors which are mentioned in the opening of this chapter – after all, there is an argument that an increase in the research capacity of developing countries may increase competition with user-country companies.415
Article 15.6 envisions a very important kind of benefit sharing and technology transfer, the creation of research and development opportunities. In terms of CBD objectives of promoting conservation and sustainable use, this “research opportunity” provision appears to be more important even than benefit sharing, for several reasons. First, a directed program which creates research facilities and assists in their development and successful operation will, of necessity, provide a broader understanding throughout the country of the importance of preservation of the country's biological diversity. Even if only communicated informally, the enlargement of recognition of this value by an educated and employed sector within the country will by definition add to the extent of acceptance by the electorate – the seat of primary decision-making in democratic systems around the world.
Second, as demonstrated by the current genetic research facilities located in and operated by developing countries, local development of facilities and capacity in this field fills a critical gap that is virtually unmet by existing research facilities in developed countries – the development of genetic-resource-based solutions to locally specific environmental, food security, and other problems. While developed-country facilities and companies offer their solutions to the world, their analysis of the problems to be addressed by genetic research is strongly tinged by the suite of issues most relevant to North America and Europe. For example, while multinational GMO development has focused on assisting farmers to combat specific problems (tolerance to certain pesticides and resistance to certain lepidopteron pests), the most pressing problems for farmers in Guatemala and South Africa, for example, have been adapting to more localized problems and conditions.416 Genetic research facilities and projects in these two countries have largely not needed (or attempted) to develop products that might compete with multinationals, but have tailored their work to addressing a more locally relevant suite of concerns.
Similarly, significant academic developments relating to potentially interesting properties such as the anti-parasitic properties of crocodilian blood (being studied and documented in the academic world)417 currently have little financial appeal for developed country pharmaceutical companies. However, intensive efforts to determine how these properties might be used pharmaceutically may be of critical importance to researchers in Africa, where the number of deaths from amoebic parasites (and connected diarrheic infections) are significant.418 Pharmaceutical development of these properties into saleable medicines may never yield the profits available for products directed at northern markets, but, if developed through sponsored or supported programs may have greater positive impact than the entire US$ 21,500,000 expended annually by the US on all of its international development, economic and technical assistance programs.419
As noted above, the CBD appears to recognize that it may not be possible to make progress on the entire scope of the third objective through Article 15 alone. Although the negotiators clearly preferred Article 15 and its approach of passing on ABS requirements to user companies, the Convention also recognizes the broader equity needs of the benefit-sharing objective. In this connection, it notes a number of specific, separate national obligations of the Parties, in addition to Article 15. All of these requirements are specifically linked to ABS, however, in that they utilize the basic mechanism – identification of the “country providing the genetic resources” as the recipient of particular kinds of benefits and support to national development.
In general, these provisions can be considered in two groups – (i) provisions that call on user countries to adopt further legislation (or extend the reach of benefit-sharing legislation beyond the immediate “user” of particular genetic resources), and (ii) provisions linked to matters of direct national responsibility (such as Articles 20 and 21 (financial resources) of the CBD), which clearly cannot be “laid off” by imposing the obligation on user companies.
In the first group, the Convention identifies a number of areas in which countries may attempt to promote the achievement of the third objective through legislation and policy. Thus Parties have specifically committed to take measures to provide the source country with “access to and transfer of technology,”420 “effective participation in biotechnological research activities”421 and “advance priority access to the results and benefits arising from biotechnologies,”422 where the technologies, activities and results being provided utilize genetic resources from that country.
Each of these provisions is interesting individually, however, the collective importance of technology transfer (Articles 16, 18 and 19) to the achievement of all of the CBD objectives is more relevant to the current analysis, and has not been adequately studied. At this point, the analysis simply notes these three sub-clauses, and considers only two primary points – (i) the integration of technology transfer responsibilities with the ABS provisions of Article 15 and (ii) the relatively subtle distinctions among these three specific provisions.
The scope of Articles 16 and 18, “technology transfer” and “technical cooperation (capacity building)” are not a part of the benefit-sharing system of Article 15 and contain hardly any reference to “genetic resources.” These articles impose a broader requirement – to support all three objectives and the implementation of all the operative articles. Their relevance to ABS can be discerned by comparing their general provisions with those addressed to countries' with users under their jurisdiction. Similarly, the determination of what constitutes “utilization of genetic resources” under Article 15, and when the ABS system ceases to apply (discussed in 184.108.40.206) may also be relevant in determining the point at which the Article 15 responsibilities of users are converted into the Article 16 and 18 responsibilities of user countries.
Four separate provisions of the CBD focus directly on transfer of technology to source countries (Articles 15.7, 16.3, 19.1 and 19.2) and a fifth does so indirectly (Article 15.6's provisions relating to “full participation” of the source country in scientific research). It seems appropriate to briefly consider the differences between them. In this discussion, it is useful to remember a basic rule of statutory interpretation – the assumption that every provision in a statute has a purpose. In other words, no provision should be assumed to be meaningless or a duplication. This raises a question: Do developed-country obligations of technology transfer extend further with regard to source countries that have provided genetic resources?
One of the clearest differences between Article 15.7 and the other provisions regarding technology transfer and sharing is their description of the countries with whom technology or results should be shared. While Article 15 applies to any country “which provided the genetic resources” without distinction, Articles 16.3, 19.1 and 19.2 apply “especially” to “developing countries.” This is an important difference.
The existence of these three additional specific technology transfer provisions relating to genetic resources underscores the fact that Article 15 was intended to create a neutral mechanism for equitable recognition and compensation of the contribution of genetic resources to products and research. It also underscores the fact that the Convention's overall goal of equity cannot be met solely by such a neutral mechanism, but must be supplemented by special provisions for developing countries that are sources of relevant genetic resources. The specific reference “equity” in Article 15.7 is not repeated in the technology transfer provisions of Articles 15.6, 16.3 and 19.1. The Convention appears to recognize that it will be necessary to transfer technology, and to promote technology transfer and national “participation” by developing countries in technological and product development, even beyond the particular equities of the individual transaction.
Another obvious distinction among the provisions is the nature of the information, technology and results being transferred. While Articles 15 and 16 focus on any research or information arising out of the utilization of genetic resources, Article 19 is focused specifically on “biotechnology.” The difference between biotechnology and other utilization of genetic resources is not entirely clear in the CBD; however, it is clear that Article 19's provisions are generally stronger and more demanding than Articles 15 and 16, suggesting that national governments have a much greater role with regard to “biotechnology” (whatever that is).
There is a further distinction among these four provisions regarding the type of action each country is expected to take. Articles 15.7, 16.3 and 19.1 all call for “legislative, administrative or policy measures, as appropriate,” while Article 19.2 calls for “all practicable measures.” Again this stronger and broader language appears to indicate that the Parties feel that there are at least two categories of utilization of genetic resources – “biotechnology” and “other utilization” – and that the former is subject to a higher level of national obligation. In the opposite direction, Article 15.6 simply requires Parties to “endeavor” to carry out research measures in the source country and with source-country participation. This too suggests a lower level of obligation, where the development involved is not “biotechnology.”
Finally, it is noted that several other CBD requirements are directly focused on the benefit-sharing objective and should be integrated with other user-country measures under ABS. Of these, one of the most important is Article 17, which requires countries to “facilitate the exchange of information, from all publicly available sources..., taking into account the special needs of developing countries.” It also notes specifically that “such exchange of information shall where feasible, include repatriation of information.” This provision could be very important to the ABS regime, if user countries make an affirmative effort to implement it. A frequent comment made during the CBD negotiations related to the fact that information taken from or based on the source country is rarely shared or repatriated. Regarding the claim that this information it is “publicly available,” it is noted that source countries often do not have any practical means of finding or accessing it. Repatriation might also constitute the basis of a “registry” through which user countries keep track of information and genetic resources that have been accessed, utilized or otherwise “acquired... in accordance with the Convention.”
Perhaps more important, however, are the ABS-related provisions of Articles 20 and 21, regarding the provision of financial assistance, both for implementation of the ABS system, and for actual contributions and benefit sharing. In several places, the CBD specifically notes that Articles 20 and 21 should be called upon, “where necessary,” to enable the creation and operation of national ABS systems, and to support and create incentives through which benefit sharing can become a reality.423 Accordingly, it is necessary to note under Article 20.1, that countries have the obligation, through the financial mechanism and otherwise, to “provide, [each] in accordance with its capabilities, financial support and incentives in respect of those national activities which are intended to achieve the objectives of this Convention.” More specifically, developed country Parties are expected to “provide, and developing country Parties avail themselves of, financial resources related to the implementation of this Convention through bilateral, regional and other multilateral channels.” (Art. 20.3)
Perhaps most important to the overall creation of a functional ABS regime at international and national levels, the Convention calls on Parties to “consider strengthening existing financial institutions to provide financial resources for the conservation and sustainable use of biological diversity” (Art. 21.4).
Through the long process of creating this book, we have been assisted in a variety of ways, both substantive and practical, by a number of knowledgeable and helpful sources. It is not possible to fully describe all such assistance; however, it is essential at least to recognize it and express our gratitude to those who made the most significant contributions of time and effort. Accordingly, we want to thank the following people for their active assistance: Ann DeVoy, Project Assistant of IUCN's Environmental Law Centre, who has provided a strong and supporting hand to our work from its inception, and her colleagues Anni Lukács, Monica Pacheco-Fabig, Jil Self, who also provided critical services quickly and cheerfully; Tiina Rajamets for proofreading and other advice; and Daniel Klein, who has served as the focal point of the Project since he joined IUCN's Environmental Law Centre in August, 2006.
In terms of the legal and political substance of this book, we obtained information, advice and suggestions from many sources. We are particularly grateful for peer review provided by Manuel Ruiz and Fernando Casas, and for substantive input and comments from: Françoise Burhenne-Guilmin, Jorge Caillaux, Grethe H. Evjen, Ute Feit, John Herity, Sarah Hernandez, Timothy Hodges, Birthe Ivars, Olivier Jalvert, Veit Koester, Horst Korn, Ikechi Mgbeoji, Valerie Normand, Dan Ogolla, Maria Julia Oliva, François Pithoud, Peter Johan Schei, Sezanneh M. Seymour, Caroline Strulik and Seizo Sumida.
414 The other commitment to technological development is CBD Article 18.5, which calls on Parties to “promote the establishment of joint research programs and joint ventures for the development of technologies relevant to the objectives of this Convention.”
415 See for example, UNITED STATES: Technology Transfer Act, 15 USC Sec. 3701, which includes a variety of incentives, including access to federal technology, as inducements for research and development, as well as international technology transfer and technical assistance by US enterprises.
416 Briefly discussed in Hårstad, 2005, reviewing more detailed information developed through the UNEP-GEF biosafety projects, and posted online at http://www.unep.ch/biosafety/. This website provides a wealth of information regarding the level of utilization of genetic resources through modern laboratory genetic modification by over 100 developing countries and countries in economic transition.
417 See, Merchant et al., 2006.
418 See, WHO information system, at http://www.who.int/topics/en/.
419 From US Agency for International Development, 2008 Budget Request, available online (in summary form) at http://www.usaid.gov/policy/budget/cbj2008/fy2008cbj_highlights.pdf.
420 CBD Article 16.3, which provides in full that “Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that Contracting Parties, in particular those that are developing countries, which provide genetic resources are provided access to and transfer of technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights, where necessary, through the provisions of Articles 20 and 21 and in accordance with international law andconsistent with paragraphs 4 and 5 below.”
421 CBD Article 19.1, which provides in full that “Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, to provide for the effective participation in biotechnological research activities by those Contracting Parties, especially developing countries, which provide the genetic resources for such research, and where feasible in such Contracting Parties.”
422 CBD Article 19.2, which provides in full that “Each Contracting Party shall take all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms.”
423 See, Articles 1 (including the phrase “and by appropriate funding” in its description of the equitable benefit-sharing objective); 15.7 (noting that legislative, regulatory and other measures should be supplemented, “where necessary, through the financial mechanism established by Articles 20 and 21”), 16.3 (calling for technology transfer to be made available “where necessary, through the provisions of Articles 20 and 21 and in accordance with international law”); and the 15th and 16th preambular paragraphs (calling for “new and additional financial resources and appropriate access to relevant technologies.”)
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