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Snaring the Wealth: Can Negotiators Reach a Uniform Position on Patenting the World's Genetic Resources?

A new international regime hopes to help reverse the trend of biodiversity loss as well as spur economic growth and research for both industrial and developing nations



Winfried Bruenken, courtesy Wikimedia Commons

High in the Cederberg Mountains of South Africa grows a bristly shrub that embodies the tug-of-war taking place between industrialized and developing nations over the value of genetic resources—the genes found in plant, animal or microbial cells used for research as well as in commercial products, such as enhanced seeds and naturally derived cosmetics and pharmaceuticals.

The leaves of rooibos, translated from Afrikaans as "red bush," are sipped in ruby-hued teas around the world but were previously sought by early settlers for their capacity to heal skin and reduce inflammation. Now, Nestec, SA, a subsidiary of Switzerland-based Nestlé, is trying to patent rooibos's healing properties for use in beauty products, a process some call a misuse of genetic resources and associated traditional knowledge. Others consider it an advancement of science and an economic boon, given the industry's estimated value of $500 billion to $800 billion, as of 1999.

A truce in the worldwide tussle over the use and patenting of genetic resources is scheduled for the middle of October when the parties to the Convention on Biological Diversity (CBD)—an international legally binding treaty on upholding the world's ecological sustainability—are set to gather in Nagoya, Japan, in hopes of finalizing a protocol on "access and benefit–sharing [ABS]." The aim is to ensure that the benefits resulting from researching animals, plants and microorganisms, such as the invention of new medicines or enhanced genes to improve crop varieties, are "fairly and equitably shared" among the providers and users. Whereas most people agree on the need for such a legally binding agreement, the fine print is still being tweaked between industrialized and developing countries. Even if the protocol is adopted in Nagoya, the only way for it to be truly effective is for it to have a strong compliance component.

"I think there is a clear ethical mandate for developed countries to create partnerships with developing countries, rather than subordinate them," says Paul Root Wolpe, a bioethicist who directs Emory University's Center for Ethics. "There also needs to be clear ways for those countries to not only get paid, but receive the other benefits of their own biological resources."

Ethics aside, there is also a political mandate. It reaches back to 1992 when 154 governments adopted the CBD. At that time, developed countries such as Canada, Germany and Japan agreed to share the associated benefits of poorer countries' genetic resources. In return, developing nations would help preserve them.

The vision was for countries and biodiversity a win–win situation. Over time it would spur scientific knowledge, catalyze commercial production, protect species and help enable developing countries to undertake bioprospecting themselves. It is akin to the "teach a man to fish" philosophy.

Unfortunately, less industrialized countries have not received the intended compensation, says Krystyna Swiderska, senior researcher in the Natural Resources Group of the International Institute for Environment and Development, which has led to a growing feeling of distrust between providers and users. The term "bio-piracy" evolved from this distrust and numerous examples exist.

Take the example of açaí fruit pulp, which is found in high-antioxidant health drinks sold in the U.S. The name of the fruit was patented, causing Brazilians to have to fight over the right to use the name "açaí" in their own products. Brazil eventually won this battle in court. Similar arguments have erupted over basmati and jasmine rice, neem, ayahuasca, tumeric and the hoodia cactus, to name a few.

The new protocol would change this trend by legally binding the industrialized countries that utilize the genetic resources to the ABS laws of the countries of origin, adds Swiderska, even though the negotiation's outcome remains uncertain because delegations still need to agree on a number of key elements. One is whether the protocol should apply to genetic resources that have already been collected. Many developing countries hope this will be the case, although the E.U. and others oppose this proposal.

"Given the substantive implications of the ABS Protocol for research and industry, any application of the new rules to past activities would create legal uncertainty for users, not legal certainty," E.U. negotiator Matthias Buck wrote in an e-mail, "We are supportive of a legally binding instrument on ABS precisely because our stakeholders would appreciate greater legal certainty on access and benefit–sharing for genetic resources in the future."

To clarify, Buck used the metaphor of a speeding ticket, noting that a person cannot be punished for speeding yesterday if a traffic sign was only placed on the street today.

Another key area of disagreement is whether derivatives of genetic resources, such as biochemicals produced by DNA, should be included in or excluded from the text of the protocol or left to be negotiated bilaterally. The third relates to the inclusion of traditional knowledge. The negotiators have a few days before the Conference of the Parties to the CBD to finalize these details.

For all those involved in the negotiations it may help to remember that 2010 has been declared by the United Nations the "International Year of Biodiversity". This year was supposed to mark a reduction in the rate of global biodiversity loss. This has not happened. Instead, animals and plants continue to go extinct at an alarming rate. According to the IUCN Red list of Threatened Species, of the 47,000 species assessed by the agency the world is losing species about 1,000 times more than the assumed normal rate.

If negotiators are successful at hashing out their differences, ideally then, a new day may dawn for the global preservation of species and science.

"We need a regime that provides enough confidence for access, and in exchange the access is facilitated and facilitates interesting research and use," says Johanna von Braun of Natural Justice, an environmental law firm that's working on the rooibos issue. "This would help benefit everyone."

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