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92 | IAASTD Global Report

to regulating access. Very different approaches were taken by individual countries to implement their sovereignty rights. Noticeably, the African Union and some countries in Asia (notably India and Thailand) have developed an approach that combines aspects of access and benefit sharing and breeder's rights in one regulatory framework, thereby clearly indicating the connection between the two issues.

     While a restrictive bilateral approach to implementing the CBD may be appropriate for wild endemic species of flora or fauna, it is not well suited to plant genetic resources for food and agriculture (Box 2-4). All domesticated crops are the end result of contributions of farmers from numerous countries or continents over extremely long periods of time.

  

The CBD explicitly closed the concept of "heritage of mankind" that had been expressed in the 1980s. The nonbinding International Undertaking (Box 2-5) has re-established a commons for the crops and forages included in its Annex 1. CIP and IRRI have reported that since the CBD came into force, movement of plant varieties from and to their gene bank collections have been noticeably reduced and regulation of biological materials has resulted in increased bureaucracy and expense. Very few cases of effective (even non-monetary) benefit sharing as a result of CBD-based regulation during the first decade of the Convention (Visser et al., 2005). The key message is that promoting fair and equitable sharing of the benefits arising from the use of genetic

Box 2-4. Convention on Biological Diversity.

Goals

1. Conservation of biological diversity

2. Sustainable use of its components

3. Fair and equitable sharing of benefits arising from genetic resources

The CBD asserts sovereignty rights to regulate access to genetic resources. It recognizes, and is to be interpreted consistent with, intellectual property over genetic resources. The sovereignty principal was to be implemented through prior informed consent and mutually agreed terms for access to genetic resources.

     The Nairobi Final Act, 1993, resolution 3, signed by the signatories to the CBD acknowledged that the access and benefit sharing framework established by the CBD did not sufficiently address the situation of existing ex situ collections of PGRFA held around the world. It further states that it was important to promote cooperation between the CBD and the Global System of Sustainable Use of Plant Genetic Resources for Food and Agriculture as supported by FAO. This resolution set the stage for the further investigation into appropriate access and benefit sharing regime or regimes for PGRFA. This led indirectly to the seven years of negotiations of the International Treaty on Plant Genetic Resources for Food and Agriculture.

Positive Outcomes

  • Heightened awareness globally of the inequitable distribution of benefits associated with the use of genetic resources
  • Heightened awareness globally of the need to value, use and conserve indigenous and local knowledge, and to promote in situ conservation.
  • Created a framework for the development of a plan of coordinated work on Agricultural Biodiversity
  • Created a framework for funding for in situ conservation promotion projects through the Convention's funding mechanism: Global Environmental Facility

Problems

  • The CBD does not distinguish between domesticated agricultural resources, collected in the form of ascensions of given crop (intra-species), and other biological resources, such as

wild plants collected for pharmaceutical applications. In fact, the convention seems to have been drafted more with the latter in mind (bio-prospecting).

  • The CBD links benefit sharing to being able to identify the country of origin of a resource. The CBD defines the "country of origin of genetic resources" as "the country which possesses those genetic resources in in situ conditions." In turn, it defines "in situ conditions" as those "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." Pursuant to this definition, the CBD requires more than simply identifying the country of origin of a crop-it requires the identification of the country of origin of the distinctive properties of the crop. Because of the international nature of the development and use of PGRFA, the CBD's method of linking the "origin" of traits to benefit sharing is impractical and often impossible to make work.
  • The CBD has contributed to and reinforced exaggerated expectations about the commercial market value for local crop and forages varieties, leading countries to take measures to restrict access to those resources as a means of eventually capturing their market value (through use licenses) rather than sharing them in cooperative research projects that would likely result in significantly higher overall public benefit.

As a result of these factors, some critics feel the convention is inappropriate for the agricultural genetic resources, while allowing that it may still have potential for redistributing benefits associated with the use of other forms of genetic resources.

     In the field of agriculture, the CBD was a groundbreaking assertion of national sovereignty over genetic resources. The sovereignty principal was to be implemented through prior informed consent and mutually agreed terms for access to genetic resources. Its implementation is through bilateral agreements between provider country and user.

Adopted at the Earth Summit in Rio de Janeiro, Brazil 1992, came into force 29 December 1993.
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