The Legal and Political Economy of ABS: ABS and Non-Parties to the Nagoya Protocol

About the Centre for International Sustainable Development Law (CISDL) The CISDL is an independent legal research centre that collaborates with the McGill University Faculty of Law and Cambridge University, and also works with a network of developing countries’ faculties of law The Centre’s mission is to promote sustainable societies and the protection of ecosystems by advancing the understanding, development and implementation of international sustainable development law. Contacts: Ms. Marie-Claire Cordonier Segger, Senior Director - mcsegger@cisdl.org Prof. Jorge Cabrera Medaglia, Lead Counsel, Biodiversity & Biosafety Law - jcabrera@cisdl.org Mr. Frederic Perron-Welch, Programme Coordinator, Biodiversity & Biosafety Law - fperron@cisdl.org

A Brief History of Access and Benefit-Sharing under the CBD ABS in Development Over 20 Years COP-7 Affirmed Bonn Guidelines and focused WG to look at Art.8(j) and Art.15 intersections. COP-8 Established meeting schedule for WG to complete its work “as early as possible”. COP-9 Set further WG meetings and called on Parties to implement Arts. 8(j) and 15 by the next meeting. COP-10 Parties adopt the Nagoya Protocol on ABS in Decision X/1 . COP-12/ COP-MOP 1 Nagoya Protocol on ABS enters into force 12 October 2014. WSSD Para 44(o) calls for the negotiation of an international regime on ABS. CBD Fair and equitable BS established as the third objective, access to GR is based on Art 15. COP-4 Decision IV/8 on ABS establishes an expert panel to develop common understanding of basic concepts and to explore all options for ABS. COP-5 Decision V/26 reconvenes expert panel and establishes a WG on ABS to consider terms for PIC/MAT, etc. COP-6 Decision VI/24 adopts Bonn Guidelines, extends mandate of WG on ABS to work on use of terms, definitions etc. Ongoing Negotiations in WG ABS 2004 2006 2008 2010 2014 Ad-hoc Working Group on ABS (WG ABS) The WG on ABS had 9 meetings (2002-2010) to develop guidelines on ABS protection, draft terms relating to key terms (PIC, MAT, Definitions etc…) and spearheaded the ongoing elaboration and negotiation of the international regime on ABS. 2002 1993 1998 2000 2002

CBD Strategic Plan 2011-2020 Target Summary Target 16 aims to implement the third objective of the CBD on equitable sharing of benefits arising from the utilization of genetic resources by ratifying or acceding to the Protocol in sufficient numbers for it to enter into force by 2015 and be operational. The Target requires countries to undertake the necessary domestic legal and political process to adhere to the international treaty, and to assess and modify existing rules or develop new legislation, regulations or administrative measures to ensure effective implementation of Protocol obligations. Operationalization of the Nagoya Protocol will require meeting new obligations while taking into account existing national legislation on subjects as varied as contract law, indigenous rights, property law, intellectual property rights, confidentiality, access to justice etc. Aichi Target 16 - By 2015, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization is in force and operational, consistent with national legislation

ABS in Context The basic obligations relating to access to genetic resources and benefit sharing resulting from their use flow from the CBD, which has 194 Parties. The Nagoya Protocol will soon provide an additional level of regulation for those CBD Parties that are also Parties to the Protocol (53) when it enters into force 12 October 2014. Despite near universal membership, the CBD lacks one of the biggest players in the field of biotechnology: the USA. As a result, there are three categories of States: Parties to the NP & CBD, Parties only to the CBD, and non-Parties to both agreements

ABS in Context The three categories of Parties creates legal and economic implications for most Parties to the CBD: i.e. States that are Parties to the CBD but not Parties to the Protocol. These countries are bound by the ABS obligations found in Articles 8(j) and 15, but may have close ties to States that are in other categories (Parties to the Nagoya Protocol, or the United States of America). As a consequence, issues of political economy occupy the minds of national decision-makers when considering the ratification of the Nagoya Protocol.

Case Study: Canada General Information Federal parliamentary democracy with ten provinces and three territories. Constitutional division of powers between Federal and Provincial Governments. Party to the CBD, Non-Party & Non-Signatory to the Nagoya Protocol. Diverse aboriginal population with differing treaty rights depending on time of contact. Consultations on ABS Policies have been carried out for ten years with no clear result.

Case Study: Canada Biogeography At 9.98 million sq./km, Canada is the world's second-largest country by total area, with 15 terrestrial ecozones, which can be subdivided into 53 ecoprovinces and 194 ecoregions, and 5 marine ecozones. The ecozones range from temperate rainforests in the West to Arctic Cordillera in the North and include arctic, plains, boreal forest, taiga, wetlands, mountains and deciduous forests.

Case Study: Canada Economy 11th largest economy in the world with a GDP of over $1.8 trillion 8th on Human Development Index Per-capita income of ~$52,000/yr Member of OECD, G8, G20, WTO, APEC Commonwealth One of the world’s top 10 trading nations with a highly globalized economy Ranked 4th in the world for scientific research in 2012 Bio-based economy has grown to over 6% of GDP and 1,000,000 jobs

Case Study: Canada Free Trade Agreements

Case Study: Canada Draft Policy Guidance Identifies the objectives, guiding principles, scope and common elements that Canada’s federal, provincial and territorial governments agree should guide the development and implementation of measures to manage genetic resources within their jurisdictions. Non-binding and only approved in draft form. No updates since it was released.

Case Study: Canada Objectives Promote the conservation and sustainable use of Canada’s biodiversity Improve Canada’s competitiveness in the bio-based economy Support ethical scientific research and development Foster regional and Aboriginal development Support Canada’s foreign policy objectives Contribute to the improvement of the health of Canadians

Case Study: Canada Principles Environment-focused – contributing to the conservation and sustainable use of biodiversity Practical and economically supportive –generating and sharing economic benefits of the utilization of genetic resources among both providers and users as a means of contributing to sustainable development Simple, efficient and adaptable – taking into account different sectors and allowing for different approaches in different jurisdictions

Case Study: Canada Principles Supportive of current governmental policies – and building on and respecting Canada’s existing international commitments Balanced, equitable and transparent – balancing responsibilities between users and providers of genetic resources in a manner that is clear and whose rationale makes sense Inclusive – developed and implemented with the appropriate involvement of Aboriginal groups and communities

Case Study: Canada Implementing ABS Policy in Canada Canada’s federal, provincial and territorial governments agreed to: Encourage the application of existing mechanisms, such as contracts and permits, to the fullest extent possible, supplemented by regulatory and non-regulatory measures. Promote consistency through, for example, the use of consistent public information. Collaborate in the development, application and monitoring of implementation tools and in the development of cooperative approaches to ABS policy in Canada. Share their experiences regarding access and benefit sharing with other jurisdictions.

Conclusions The Nagoya Protocol will enter into force on 12 October 2014 with 54 of 194 CBD Parties as members, leaving 140 Parties to the CBD that are non-Parties to the Nagoya Protocol. This creates a situation where CBD Parties must attempt to implement Article 15 while taking into consideration non-Parties to the CBD, and Parties to the Nagoya Protocol. International political economy will play a large role in determining whether the Nagoya Protocol becomes universal or effectively creates a cartel for genetic resources among its Parties (i.e. by blacklisting researchers and companies from non-Parties due to concerns over compliance). Industrialized countries like Canada will likely remain outside the ambit of the Nagoya Protocol until the international situation strongly influences the Government’s cost/benefit analysis. In Canada, the economic harm caused by ratifying the Nagoya Protocol would likely exceed the economic benefits due to economic integration with the United States. For the Canadian Government, this material calculation outweighs any moral or ethical considerations linked to benefit-sharing on GR and TK.

Question for the Audience How do we alter the international political/economic calculations that undermine the functionality of ABS to increase the number of Parties to the Nagoya Protocol?

Mr. Frederic Perron-Welch, M.A. LL.B. Thank You Mr. Frederic Perron-Welch, M.A. LL.B. Legal Research Fellow and Programme Coordinator, Biodiversity & Biosafety Law Centre for International Sustainable Development Law 3644 Peel St, Montreal, Quebec, Canada H3A 1W9 www.cisdl.org / fperron@cisdl.org