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Food security and access and benefit sharing laws relating to genetic resources: promoting synergies in national and international governance

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Abstract

Are the national laws regulating access to genetic resources that countries have enacted in exercise of their sovereign rights accorded by the Convention on Biological Diversity jeopardising food security by failing to take into account the distinctive features of genetic resources for food and agriculture? If so what can be done about it? What are the obstacles to doing so? And how can they be overcome, especially in the context of the present ongoing negotiations for an international regime on access and benefits sharing under the biodiversity convention? This article examines the impact of the national access laws and other instruments on the free access and exchange of these genetic resources and hence on the maintenance of agricultural biological diversity upon which food security hinges so critically. It highlights the obstacles that stand in the way of developing countries facilitating access to their genetic resources and proposes a multilateral non-market-orientated approach to overcome them.

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Notes

  1. These GRFA include: animal genetic resources; aquatic genetic resources; forest tree germplasm; and microbial collections.

  2. There are 16 such centres that hold ex situ germplasm collections. They make up the Consultative Group on International Agricultural Research (CGIAR). On 16 October 2006, 11 of these centres signed agreements under Article 15 of the ITPGRFA placing their collections, 650,000 accessions of the world’s most important crops,within the purview of the ITPGRFA.

  3. This is a standardised contract prescribed by Article 12 of the ITPGRFA to provide facilitated access to a number of plant GRFA.

  4. See document IT/GB-3/09/Inf.15. With respect to the samples for which the Centres were able to provide details of the recipients, 80% were sent to developing countries and countries with economies in transition, 6% to developed countries and 14% were inter-Centre transfers.

  5. See as a typical example, the case of Brazil whose agriculture has been based on genetic resources accessed over time from outside the country: sugarcane from New Guinea, coffee from Ethiopia, rice from the Philippines, soybean and oranges from China, and cocoa varieties from Mexico. National forestry relies on eucalyptus from Australia, pine trees from Central America and the Caribbean. Cattle raising relies on bovines from India, horses from Central Asia and to some extent on African grasses. Fish farming relies heavily on carp from China and tilapia from Eastern Africa. Apiculture is based on varieties derived from crossbreeding of honey bees of genus Apis, originating from Europe and Tropical Africa. It was the international exchange and easy access to genetic resources without great formality and based on reciprocity between countries and organisations that “played a crucial role in the evolution of Brazilian agriculture” (Mariante et al. 2009, pp. 41–42).

  6. UN COMTRADE database on trade in bovine semen, and live bovine animals, pigs and equines for breeding.

  7. Defined as the protection of the economy, environment and human health from negative impacts associated with pests, diseases and weeds (Australian Government, September 2005, cited in Lovett 2009).

  8. As of 28 December 2009, according to the CBD web page (http://www.cbd.int/doc/lists/nfp-abs-cna.pdf), only 15 countries reported to the CBD on the establishment of a National Competent Authority which is usually responsible for implementation of ABS provisions of the CBD. Less than half of these had specific ABS laws. However, many countries have dedicated ABS laws that they have implemented through national competent authority but have not reported this fact to the CBD. The most notable examples are Philippines, India and Brazil.

  9. This was part of a study undertaken principally by the author and was funded by the FAO (Nijar et al. 2009).

  10. The African Model Law for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, 1998; and the Draft ASEAN Framework Agreement on Access to Biological and Genetic Resources, 2004 (revised).

  11. ‘Biological resources’ include genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity. CBD, Article 2.

  12. These are often traded under the assumption that their value as a genetic resource is included in the price paid by a willing buyer.

  13. This is countenanced by the TRIPS Agreement, Article 30(iii). See also Tansey and Rajotte (2008). Under a utility patent, the disclosure requirement is satisfied by the deposit of a sample of a living organism. Access to the patented genetic material for research with (but not on) it is permitted. The deposited seed (or tissue) may be used in the production of new plant types (Kloppenburg 2004).

  14. The US allows research without the authorisation of the patent owner narrowly for scientific purposes only. Whether the use is for commercial purposes or not is not determinative: Madley v Duke 64 USPQ 2d 1737 (Fed Cir 2002). In European and other countries, experimentation on an invention (not with an invention) is allowed even for commercial purposes (Correa 2007).

  15. However some laws, by not specifying access to GR for conservation purposes for which approval was necessary, seem to impliedly exempt such access from the purview of its ABS law.

  16. See as an example, Brazilian Provisional Act 2, 186-16/01.

  17. Only Bhutan explicitly exempts commodities; India reserves the right to declare such an exemption.

  18. Taxonomic identification keys helped Thai scientists to detect the presence of a pest A. dispersus. A potential biocontrol agent, Nephasis oculatus, was then introduced from Hawaii to help lessen the infestation and provide an eventual long-term control. The cost was less than a few thousand US dollars. Today, the pest only occurs sporadically. This pest attacks broad-leaved crops and fruit trees such as guava and mango (Waterhouse and Sands 2001 cited in BIONET (undated)).

  19. Malawi and Sabah.

  20. Philippines, Hawaii, Uganda and Kenya.

  21. Bhutan, Bangladesh, Costa Rica, Brazil, Andean Decision 391, ASEAN Framework Agreement 2004, Bolivia, Afghanistan, India and Ethiopia.

  22. FAO Conference Resolution 5/89. The ITPGRFA places the responsibility of realising Farmers’ Rights on national governments and lists some of the measures for protecting and promoting these rights. See ITPGRFA, Article 9.2.

  23. Costa Rica.

  24. Bhutan. Exemption: Sect. 4(f); Objective: Sect. 2(h), Bhutan Biodiversity Act 2003. For the content of Farmers’ Rights, see also ITPGRFA, Article 9.1–9.3. A crucial aspect is the right of farmers to have, use, exchange and sell farm-saved seed and propagating material. The farmers and breeders’ right entitlement to access materials is based on this provision, combined with the objective of its law recognising and protecting farmers’ and breeder’s rights.

  25. India requires foreign persons and entities and non-resident Indians to obtain approval for access for commercial utilisation. Such utilisation excludes: conventional breeding or traditional practices in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry or bee keeping. See Indian Biodiversity Act 2002, Sect. 2f. This provision seems to imply that foreign and non-resident Indian nationals are exempt from the ABS requirements for activities excluded from the definition of ‘commercial utilisation’, including activities of conventional breeding or traditional practices in use in the specified agricultural field.

  26. Amongst the ‘non-bioprospecting’ activities that Hawaii exempts (by its Draft Bill on Bioprospecting 2007, Sect. 1) from its access provisions are the taking of biological samples that are part of usual practices in crop cultivation, animal husbandry and aquaculture, and biological resources for any commercial or related non-commercial activity such as collecting broodstock for (and harvesting of) trees, plants and flowers. Although the term ‘part of usual practices’ is not defined, this provision seems to exempt farmers and breeders from the access requirements of the law. Bioprospecting is defined as any activity undertaken to harvest or exploit, for any purpose, samples or derivatives, in situ or ex situ, of genetic or biochemical resources from plants, animals or microorganisms.

  27. These include 35 crops (the main ones including rice, maize, potato, beans, millet, lentil, barley, rye, banana/plantain, cassava and yams), 15 legume forages, 12 grass forages and 2 other forages.

  28. It is possible that there are other ways, outside of ABS laws, for Parties to deal with crops in the MLS. Brazil, for example, deals with these through policy measures (Mariante et al. 2009).

  29. Bonn Guidelines, Article 10.

  30. Ibid.

  31. For example, Australia, India and Ethiopia.

  32. Bolivia, Hawaii, Pakistan, Uganda, Kenya, Bangladesh and the Northern Territory of Australia.

  33. Brazil and Costa Rica.

  34. Bolivia, Kenya, Australia, Pakistan and Bangladesh.

  35. Australia imposes a mere AUD 50 for access for commercial purposes. There is no charge for any other access (Burton 2009).

  36. Developing countries presently access animal germplasm from developed countries. The cost is heavily subsidised by public funding. See footnote 46 and accompanying text.

  37. Costa Rica, India, Pakistan, Guyana.

  38. CBD, Article 15(7).

  39. India, Pakistan, Afghanistan, Bhutan, Bulgaria, Malawi, Australia, Nigeria, Guyana, South Africa and Philippines.

  40. Bangladesh.

  41. Hawaii and Sabah.

  42. India and Brazil.

  43. Ethiopia, Bhutan, Guyana, Philippines and South Africa.

  44. Brazil, Vanuatu, South Africa, India, Kenya and the Draft ASEAN Framework Agreement.

  45. Brazilian Provisional Act 2001, Article 16(5); General Rules for Access to the Genetic and Biochemical Elements and Resources of the Biodiversity, 2003 (Costa Rica), Article 7.

  46. The access of animal germplasm by the South from the North has been funded largely by public sector subsidies and through commercial market transactions. If the provider countries of the North were to impose similar requirements for access, especially as regards benefit-sharing, it is difficult to gauge the consequences for developing countries. Absent any public funding, it could impede the free flow and exchange of such genetic resources to these countries.

  47. The Bonn Guidelines state that permitted uses should be clearly stipulated and new application for changes or unforeseen uses should be required. Bonn Guidelines, Article 34.

  48. The Bonn Guidelines suggest that special terms and conditions should be established under mutually agreed terms to facilitate taxonomic research for non-commercial purposes in this context—Article 16(b)(viii).

  49. For example, Bolivia, Brazil, Costa Rica, India, Philippines, Bhutan and Ethiopia.

  50. Standard Material Transfer Agreement, Articles 5(e) and 6.9 require the provider and the recipient, respectively, to inform the governing body of the ITPGRFA of the material transfer agreements entered into.

  51. The International Undertaking was adopted by the FAO Conference in 1983. It was a voluntary (non-binding) agreement which preserved the principle that plant genetic resources were the common heritage of mankind and should be made available without restriction for plant breeding, scientific research or genetic resource conservation.

  52. The Plant Variety Protection Act of the US is the outcome of a 100-year struggle by industry to protect plant varieties developed by agribusiness. This is described further in Kloppenburg (2004).

  53. Known by its French acronym—Union Internationale pour la Protection des Obtantions Vegetales.

  54. The lobbying by UPOV and other seed organisations and by Free Trade Agreements (for example the 2000 FTA between the US and Jordan required Jordan to join UPOV) also played a key role (Dutfield 2008).

  55. Seeds deposited as part of the requirement in patent law to satisfy the provision of sufficient information to enable a person skilled in the art to make or use the invention, may be accessed and the deposited seed (or tissue) may be used in the production of new plant types. Note that the research must be with but not on the patented product.

  56. India has set up a Traditional Knowledge Digital Library to prevent the granting of wrong patents on the basis that such knowledge is in the public domain and reflects ‘prior art’. It provides information on traditional knowledge existing in the country in languages and format understandable by patent office examiners in other jurisdictions. Also, the San-Hoodia case shows that companies acknowledge that benefits may be shared even if the traditional knowledge upon which the product is made was in the public domain. In this case, a South African research institute (CSIR) entered into a benefit sharing agreement with the San community arising from a product created based on the commonly known knowledge of the San of the Hoodia plant’s appetite suppressant function.

  57. In March 1998, a patent was granted to Delta & Pine Land Co, a leading private seed company that had sponsored research for a method for producing seed that is incapable of germination. Since then, other companies—Syngenta, Pharmacia, DuPont and BASF—have developed a variety of similar techniques collectively known as Genetic Use Restriction Technologies. They have not yet been commercialised primarily because of a resolution at the CBD reasserted during the Eighth Meeting of the Conference of the Parties in Curitiba in 2006 (Decision VIII/23C).

  58. The mandate to negotiate an international regime on access and benefit sharing arising out of the utilisation of genetic resources was set up at the seventh Conference of the Parties in 2004. Since then, eight Working Group meetings have been held to negotiate its terms. To expedite the process, two meetings in a new format were held in January 2010 at Montreal. This was followed by the ninth Working Group meeting in Cali in March 2010. This took the form of a meeting of 26 persons chosen by the Co-Chairs of the Working Group (Friends of the Co-Chairs) from 26–29 January 2010, and an intersessional meeting of representatives chosen by the UN Groupings of countries, eight from each region, of which only 5 were allowed at the negotiating table at any one time.

  59. The proposed draft ASEAN Framework Agreement on Access to Biological and Genetic Resources (Revised 2004) has yet to be adopted.

  60. India (every application for plant variety protection must also contain a complete passport data of the parental lines from which the variety has been derived. See the Plant Varieties and Farmers Rights Act, 2004, Sect. 18(1)(e).

  61. Report of the Group of Experts on an internationally recognised certificate of origin/source/legal provenance, Lima, 22–25 January 2007: UNEP/CBD/WG-ABS/5/7, at p. 9. As genetic resources are now being used in various forms ranging from extracted DNA to various types of sequence data that are readily copied and can be used for a variety of purposes, tracking genetic resources requires means for providers to track the uses of the data and information derived from their genetic resources. This task of tracking successive uses of such information is complex but theoretically feasible (Thompson et al. 2009).

  62. ITPGRFA, Article 13.

  63. The ITPGRFA, for example, balances such apparently divergent interests as: conservation and use; in situ and ex situ resources; rights of farmers and breeders; and free access and intellectual property rights.

  64. “The CBD objectives are thought to be mutually supported and innately related…The present international moral dimensions of sustainability demand the ‘fair and equitable’ distribution of the benefits arising out of the utilization of resources” (Smagadi 2006, p. 283). The Brundtland Commission also refers to the link between equity and sustainability (Brundtland 1987).

  65. ‘‘In our more modest moments, today’s soybean breeders must admit that a more ancient society made the big accomplishments in soybean breeding and that we have merely fine-tuned the system to date’’. (Leffel 1981 cited in Kloppenburg 2004, p. 185).

  66. ‘’Probably, the total genetic change achieved by farmers over the millennia was far greater than that achieved by the last hundred or two years of more systematic science-based effort’’ (Simmonds 1979, cited in Kloppenburg 2004, p. 185).

  67. At the TRIPS Council, developing countries have proposed an amendment to the TRIPS Agreement. The avowed objective is to check the misappropriation of biological and genetic resources. Many of these countries oppose patents over life forms arguing that there is a need to ensure that the CBD and the WTO are implemented in a mutually supportive way. These proposals require an application for a patent to disclose the source and country of origin of the genetic resources and associated traditional knowledge, furnish evidence of consent by the country of origin as well as evidence of the fair and equitable sharing of the benefits. See further: WT/GC/W/564.

  68. CBD, Article 16(5).

  69. Recipients shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources for food and agriculture, or their genetic parts or components, in the form received from the Multilateral System. ITPGRFA, Article 12.3(d).

Abbreviations

ABS:

Access and benefit sharing

CBD:

Convention on biological diversity

FAO:

Food and Agriculture Organisation of the United Nations

GRFA:

Genetic resources for food and agriculture

IPRs:

Intellectual property rights

ITPGRFA:

International treaty on plant genetic resources for food and agriculture

MLS:

Multilateral system

TRIPs:

WTO agreement on trade related intellectual property rights

UPOV:

Union for the protection of new varieties of plants

WTO:

World trade organization

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  1. Law Faculty, University of Malaya, 50603, Kuala Lumpur, Malaysia

    Gurdial Singh Nijar

  2. Centre of Excellence for Biodiversity Law, Kuala Lumpur, Malaysia

    Gurdial Singh Nijar

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Nijar, G.S. Food security and access and benefit sharing laws relating to genetic resources: promoting synergies in national and international governance. Int Environ Agreements 11, 99–116 (2011). https://doi.org/10.1007/s10784-010-9131-9

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