SUM 3000 / 4000 Environment and Development.

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

2. 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

3. 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?

4. 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

5. 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$

6. 5. CBD: International negotiations • Science and politics: Consensus • From conservation to equity: Conflict • 1970s: 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

7. 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

8. 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 (8j) • Claim for information about access and country of origin in patent application • Certification system for trade in genetic resources

9. 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

10. 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

11. 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?

12. 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’

13. 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’?

14. 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

15. 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)