SUM 3000 4000 Environment and Development The Case

SUM 3000 / 4000 Environment and Development. “The Case of Biodiversity in International Negotiations” G. Kristin Rosendal Fridtjof Nansens Institutt

1. Overview of presentation • The issue: Loss and value of biodiversity • Main focus: Agreed but diverging objectives – Convention on Biological Diversity (CBD) objectives: Balance conservation, access and benefit sharing – TRIPS and WIPO objective: Stimulate innovation – FAO objective: Access to breeding material • Implementing diverging objectives: Two theoretical perspectives Fridtjof Nansens Institutt

2. Relevance • Protection: Breeders and bioprospectors need legal protection (intellectual property rights) of genetic material to assure a fair return from investments in genetic improvement. • Access: Farmers, breeders and bioprospectors need access to genetic resources for food and medicine production and genetic improvement • Conservation: Biodiversity is threatened and there is a need for models of incentives for conservation • How to balance protection & access - and stimulate innovation and conservation? Fridtjof Nansens Institutt

3. Biodiversity: Ecosystems, species, genes • Loss of biodiversity: – Loss is 100 times faster than ’natural average rate’ – Of the 7 -60 mill. species world-wide; only 1. 9 mill. scientifically described: Do not know what is being lost • Increased attention on value of biodiversity: – U. S. biotechnology generates US$ 13 billion yearly – loss deprive people of ecosystem services worth about US$250 billion yearly – Non-economic: Intrinsic and cultural value • Rapid loss + High value = Political focus Fridtjof Nansens Institutt

4. Economic value of genetic diversity • Agriculture and animal breeding: – Depend on access to diversity of genetic material to retain high yield, adapt to changes and resist diseases • Medicinal potential: Bioprospecting – Less than 1 % of all plants, insects, marine and microbiological organisms has been examined for chemical traits – 80% rely on herbal medicines & traditional knowledge about their use – OECD: yearly value of products derived from genetic resources estimated at 500 - 800 billion US$ Fridtjof Nansens Institutt

5. CBD: International negotiations • Science and politics: Consensus • From conservation to equity: Conflict – 1970 s: Ramsar, CMS, CITES. 19902: CBD • The conflict in the CBD negotiations: – 1. Main bulk of terrestrial species found in tropical areas – 2. Genetic resources: Input factors for biotechnology – 3. Biotechnological inventions building on traditional knowledge and seeds collected from tropical areas – 4. Privatisation & patents also within life sciences – 5. Patents hardly applicable in developing countries: Rosy periwinkle – International agreement: Balance access to genetic resources and equitable sharing of benefits Fridtjof Nansens Institutt

6. Establishment of the CBD • Contents of CBD: Some highlights – Into force 1993: 188 Parties (- USA and Iraq) – Three main objectives: 1. Conservation of biodiversity, 2. sustainable use of biodiversity, 3. equitable sharing of benefits from use of genetic resources – Compromise: National sovereignty to balance free access and patent protection – Conservation: Reverse loss by 2010 Fridtjof Nansens Institutt

7. Establishment of the Bonn Guidelines • CBD Bonn Guidelines (2002): – Prior informed consent and mutually agreed terms – Material Transfer Agreement: Document conditions – Participation of all stakeholders (8 j) – Claim for information about access and country of origin in patent application – Certification system for trade in genetic resources Fridtjof Nansens Institutt

8. Interaction between multilateral agreements • FAO: Access to breeding material (seeds) – 1983 -89: From Common Heritage of Mankind to patents – 2001: Treaty on Plant Genetic Resources • CBD: Conservation, access, benefit sharing – 1992: CBD. 2002: Bonn Guidelines. • WTO/TRIPS and WIPO: Stimulate innovation – Trade Related Aspects of Intellectual Property Rights – 2005: WIPO: Draft Substantive Patent Law Treaty • Internationally agreed - but diverging objectives Fridtjof Nansens Institutt

9. Disruptive effects of interaction • Some views on disruptive effects: – IRP vs conservation: IPR systems may indirectly weaken indigenous and local groups in their efforts to achieve bilateral agreements on bioprospecting – IPR vs equity: IPR hardly provides incentives for conservation – Access vs conservation: Excessive harvesting may result once a promising sample has been made; but – incentives for conservation are also likely to be small if end products are derived from synthetic processes • Challenge: – Develop compatible policies and institutions in countries providing and countries using genetic resources Fridtjof Nansens Institutt

10. Analytical approaches to implementation • The realist view predicts: Power decides – Interest maximising and structural power relations between states decide outcomes and implementation – Industrialised countries dictate bioprospecting deals • The ideational view predicts: Norms count – Learning through co-operation in international negotiations – Spreading of norms through legitimising effect of international regimes • How do the predictions match empirical findings? Fridtjof Nansens Institutt

11. Supporting the realist view: ‘Power decides’ • Forum ‘shopping’: From CBD to TRIPS – WTO/TRIPS: Strong economic sanctions & dispute settlement mechanisms, powerful states dominate – ‘TRIPS plus’: Bilateral trade agreements – WIPO: Substantive Patent Law Treaty: World patent? • Weak bilateral negotiation power in ‘South’: – – Lack of administrative capacity Geographical distribution of genetic resources Small revenue from bioprospecting Lack of compatible ABS regulation in user countries • Unbalanced implementation: – Ever stricter patent- and access-regulations create ‘anticommons’ and ‘arms race’ Fridtjof Nansens Institutt

12. Supporting the ideational view: Norms and learning • ‘Green’ legitimacy: – Private sector users seek legitimacy in genetic resources transactions (Kew, Biotics) • Learning: – International fora: Spread of norms on ABS – UNESCO: Traditional knowledge and intellectual property developing model provisions on the protection of folklore – UNCTAD: The Biotrade Initiative – WIPO: Protection of traditional knowledge – WSSD 2002: WTO rules not to override environmental treaties – National implementation: Follow Bonn Guidelines • Conclusion: Scope for reconciliation or ‘theory determines findings’? Fridtjof Nansens Institutt

13. Prospects for conservation • Conflict over IPR and ABS take central stage? • IPR and ABS have stronger stakeholders than conservation • CSR and private partnerships: Fragmented responsibility? • Few signs of success for 2010 goal, • but getting developing countries on board through ABS is prerequisite for conservation, access and innovation Fridtjof Nansens Institutt

A Guide to Acronyms • CBD: Convention on Biological Diversity • IPR: Intellectual Property Rights • ABS: Access and Benefit Sharing • FAO: Food and Agricultural Organization • • TRIPS: Trade-relater Aspects of intellectual Property Rights WTO: World Trade Organization • WIPO: World Intellectual Property Organization • CSR: Corporate Social Responsibility • WSSD: World Summit on Sustainable Development (UN Conference, Johannesburg 2002) Fridtjof Nansens Institutt