The ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization' to the Convention on Biological Diversity has been hailed as a giant step towards the implementation of the third objective of the CBD.
The ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization’ to the Convention on Biological Diversity (CBD) has been hailed as a giant step towards the implementation of the third objective of the CBD: the fair and equitable sharing of benefits arising out of the utilization of genetic resources, including by appropriate access to them. Implementing this third objective will contribute, it is hoped, to the conservation of biological diversity and the sustainable use of its components, the other two objectives of the CBD.
The Protocol confronts policy makers and administrators responsible for its implementation at the national level with a number of challenges. One of these challenges is the Protocol’s obligation to consider, in the development and implementation of access and benefit-sharing (ABS) measures, the importance of genetic resources for food and agriculture (GRFA) and their special role in food security. On the one hand, the Protocol explicitly recognizes the importance of genetic resources to food security, the special nature of agricultural biodiversity, its distinctive features and problems needing distinctive solutions as well as the interdependence of all countries with regard to GRFA, and the importance of GRFA for sustainable development of agriculture in the context of poverty alleviation and climate change. On the other hand, the Protocol provides little guidance as to how the special features of GRFA may be adequately reflected in domestic ABS measures.
What makes genetic resources for food and agriculture so special, when compared with other genetic resources? Unlike wild biodiversity, many GRFA are managed by farmers and often depend on this human influence. There is great and growing interdependence between farming communities, including indigenous peoples and local communities, and countries for GRFA, in particular in times of climate change. Historically, GRFA have moved together with people throughout the world, spurred by migration, colonization and trade. It has been and, in large parts of the world, still is common practice to exchange GRFA among local communities, farmers, livestock keepers, foresters and breeders, as part of customary improvement and production processes. As a result, a significant part of the genetic diversity used in current agricultural and food production systems is of “exotic” origin.
Some of the special features of GRFA may pose significant challenges in the development, adaptation and implementation of ABS measures.
Country of Origin
ABS measures will usually require that the country of origin of a genetic resource has granted prior informed consent (PIC) and that mutually agreed terms (MAT) have been established. “Country of origin of genetic resources” means the country that possesses those genetic resources in in situ conditions. “In situ conditions” means conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties. Given these legal definitions, it may be difficult in the case of many GRFA to determine with certainty their “country of origin” because they have been widely exchanged across regions, countries and communities and over often long periods of time. Many different stakeholders, including indigenous peoples and local communities, farmers, researchers and breeders have contributed to their development, in different places and at different points in time. Stakeholders are seeking clarity on this issue and, in order to share benefits, need to know with whom.
Policy makers might also face the challenge of specifying the activities that trigger the ABS requirements, i.e. the need for users to apply for PIC and share benefits. The Nagoya Protocol’s trigger is “utilization” which means “to conduct research and development on the genetic and/or biochemical composition of genetic resources, including through the application of biotechnology (…).” Following this definition, certain typical uses of GRFA, for example growing crop seeds and subsequently using the harvested products for human consumption, do not qualify as utilization and therefore do not trigger ABS obligations. Other activities regularly performed with respect to GRFA are more difficult to qualify. Fish farming, for example, while serving the purpose of producing fish for human consumption may simultaneously, through selection due to the hatchery environment, contribute to the genetic development and, in fact, domestication of the fish. Many GRFA are being shaped, developed and improved through their continued use in agricultural production. Where “research and development” and agricultural production occur in tandem, it may be difficult to distinguish “utilization” from the production of agricultural products for sale and human consumption.
In 2013, practical issues like these have led the Food and Agriculture Organization of the UN (FAO)’s Commission on Genetic Resources for Food and Agriculture (CGRFA) to put in place a process, the outputs of which are to be ‘Elements to Facilitate Domestic Implementation of Access and Benefit-Sharing for Different Subsectors of Genetic Resources for Food and Agriculture.’ ‘Draft Elements,’ developed by a Team of Technical and Legal Experts on Access and Benefit-sharing from all the regions of FAO, will be discussed at the Commission’s Fifteenth Regular Session, to be held from 19-23 January 2015 at FAO Headquarters.
The ‘Draft Elements’ aim to assist governments considering developing, adapting or implementing ABS measures, to take into account the importance of GRFA, their special role in food security and the distinctive features of the different subsectors of GRFA, while complying, as applicable, with international ABS instruments. The ‘Draft Elements’ aim to make ABS work for GRFA.