Success of the Convention on Biological Diversity (CBD) depends on our understanding of biodiversity. Hence, CBD and the subsequent Nagoya Protocol on Access and Benefit-sharing (NP) urge signatory nations to promote and encourage research on biodiversity. However, imposition of sovereign rights of nations on their biological resources and the emphasis on the CBD third objective of fair and equitable sharing of the benefits arising out of the utilization of genetic resources (GR) through access and benefit-sharing (ABS) are coming in the way of achieving the primary objectives of the CBD relating to conservation of biological diversity and its sustainable use.

In the meantime, examples of financially significant ABS agreements are scarce even after a quarter century of existence of the CBD. A survey of megadiverse countries having functional ABS legislation showed that very few commercial ABS agreements (2.05 per year per country) have been concluded, suggesting a lack of demand for GR by potential users. Instead, the regulations to harness perceived benefits by individual countries have made much needed biodiversity exploration and research difficult and in some cases even impossible. The global research community has been complaining about the challenges they face in accessing and exchanging biological material for research as well as international collaborations that are crucial for the global food security and conservation of biodiversity.

No Substitute for Sharing of Biological Resources

Biological resources being truly renewable, their use promotes further improvement and ex situ conservation as in the case of crop plants. Use of any biological resource in a given area does not limit its use elsewhere. However, throughout the negotiations in the run up to the CBD and NP, biological resources were treated akin to non-renewable resources such as oil and coal.

The principles underlying the CBD and NP are laudable, and both underscore that access to GR should also address the issues of equity. However, with the third CBD objective of ABS making a slip, it is becoming evident that the CBD and NP may not be able to address the issues of equity raised by developing countries at the Earth Summit in 1992, which ultimately culminated in nationalization of genetic resources. As governments began to enact national legislation to regulate access to biological resources within their borders for benefit-sharing from the derived products, consequences of such actions on biodiversity research and food security are being overlooked. The principal victim of these legislative actions is biodiversity research that includes inventories and international collaborations as its core. Such restrictions, apart from curtailing research and development, run counter to the objectives of the CBD. Enormous amounts of biological data, including Digital Sequence Information (DSI), are increasingly being published via the database portals of the International Nucleotide Sequence Database Collaboration (INSDC). The unlimited and open access DSI encourages collaboration among researchers besides enabling conservation and sustainable use of biological diversity. As access to DSI is coming to the center stage of negotiations in the forthcoming 14th meeting of the Conference of the Parties (COP 14) to the CBD, the global research community is increasingly concerned about the free flow of information, which is essential for the advancement of science.

New Treaty for Non-profit Research and Development

Not-for-profit research, such as inventories and taxonomic studies, intended for the public domain, should be differentiated from commercial research leading to proprietary rights. On the one hand, access has to be open when the benefits are in the public domain, and the providers of the biological resource are free to make use of the benefits just as anybody else. On the other hand, if the benefits are confined to the private realm through intellectual property rights, the provider may secure a share bilaterally.

The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), popularly known as the “Seed Treaty,” provides a promising model for international collaboration on biodiversity research. The treaty ensures worldwide public accessibility to GR of essential food and fodder crops. While the CBD and NP necessitate access to GR on a bilateral basis through case-by-case negotiations, the Seed Treaty adopts a multilateral system for ABS (MLS) through a Standard Material Transfer Agreement, averting the need for bilateral negotiations. The MLS established under the Seed Treaty has been viewed as a very successful model in terms of volume of material exchanged (8,500 transfers every week) in contrast to the very limited performance of the bilateral system of the CBD and NP. Exchange of genetic material under the Seed Treaty is exempted from the NP requirements, and the benefit sharing requirement arises only when access for further research and breeding is restricted through intellectual property rights. One possible course of action for the CBD COP might be to add a legally binding treaty to promote and facilitate biodiversity research, conservation and international collaboration. Such a treaty could address legal uncertainties in the governance of global research commons such as microbial culture collections held by the World Federation of Culture Collections as well as DSI published through the portals of INSDC or taxonomic type materials held in various museums all over the world.

Intrinsically, GR is a public resource – truly renewable, non-rivalrous and non-exclusive – much similar to the knowledge resources. Its dissemination across national boundaries further enriches their diversity, value and conservation. For example, cultivation of a crop variety in a region does not limit its use elsewhere. Thus, it is imperative that GR are retained as common heritage. Man, as a biological species, depends more or less on the same GR for survival, irrespective of the national boundaries. Open access to GR addresses the issues of equity by ensuring access to biological resources for all. This advocates the universal freedom to study, distribute, modify and utilize GR by any one and for any purpose. As in the case of open source software licenses, many forms of free and open access licenses can be conceived for GR too. The open access model offers people the right to freely distribute copies and modified versions of GR with stipulation that the same rights should be preserved in derivative works in the future.

Biodiversity forms the basis of global food and livelihood security, and the nations of the world are linked in a complex web of genetic interdependence that ensures global food security. Countries have gained much more than their individual contributions through the exchange and sharing of a myriad kinds of crops and domestic animals from all over the world. Similarly, international collaboration is inevitable for understanding life on earth, its conservation and sustainable use. The objectives of the CBD are interlinked with the Goals of the 2030 Agenda for Sustainable Development and three SDGs in particular: SDG 2 (zero hunger), SDG 14 (life below water) and SDG 15 (life on land). It is time that the forthcoming CBD COP take stock of the impacts of parochial restrictions on open access and free exchange of biological resources due to the NP and national ABS regimes, and adopt the necessary course correction to help achieve sustainable development for all.

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This article was authored by Priyadarsanan Dharma Rajan, Ashoka Trust for Research in Ecology and the Environment (ATREE), Bangalore, India, and Kaniyarikkal Divakaran Prathapan, Kerala Agricultural University, Kerala, India.