Global Governance of Genetic Resources: Access and Benefit Sharing after the Nagoya Protocol 9780203078020

Table of contents :
Cover......Page 1
Title Page......Page 4
Copyright Page......Page 5
Table of Contents......Page 6
List of figures and tables......Page 8
List of contributors......Page 10
Foreword......Page 14
About COST......Page 16
Acknowledgements......Page 18
Abbreviations......Page 20
1 Global governance of genetic resources: background and analytical framework......Page 22
2 The term ‘genetic resources’: flexible and dynamic while providing legal certainty?......Page 39
3 The negotiations of the Nagoya Protocol: issues, coalitions, and process......Page 54
4 The role of non-state actors in the Nagoya Protocol negotiations......Page 81
5 The role of the European Union in the Nagoya Protocol negotiations: self-interested bridge building......Page 100
6 The role of Switzerland in the Nagoya Protocol negotiations......Page 117
7 Goals, strategies and success of the African Group in the negotiations of the Nagoya Protocol......Page 135
8 The Nagoya Protocol and the diffusion of economic instruments for ecosystem services in international environmental governance......Page 153
9 Beyond Nagoya: towards a legally functional system of access and benefit sharing......Page 179
10 The impact of the Nagoya Protocol on the evolving institutional complex of ABS governance......Page 199
11 Balancing ABS and IPR governance in the aquaculture sector......Page 217
12 Governance options for ex-situ collections in academic research......Page 234
13 Conclusions: an assessment of global governance of genetic resources after the Nagoya Protocol......Page 252
Index......Page 272

Citation preview

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Global Governance of Genetic Resources

The Convention on Biological Diversity’s (CBD) initial 1992 framework of global Access and Benefit Sharing (ABS) governance established the objective of sharing the benefits arising from the use of genetic resources fairly among countries and communities. Since then, ABS has been a contested issue in international politics—not least due to the failure of effective implementation of the original CBD framework. The Nagoya Protocol therefore aims to improve and enhance this framework. Compared to the slow rate of progress on climate change, it has been considered a major achievement of global environmental governance, but it has also been coined a ‘masterpiece of ambiguity’. Global Governance of Genetic Resources analyses the role of a variety of actors in the emergence of the Nagoya Protocol and provides an up-to-date assessment of the core features of the architecture of global ABS governance. It offers a central resource regarding ABS governance for those working on and interested in global environmental governance. This is achieved by focusing on two broad themes of the wider research agenda on global environmental governance, namely architecture and agency. Sebastian Oberthür is the Academic Director of the Institute for European Studies at the Vrije Universiteit Brussel, Belgium. G. Kristin Rosendal is a Research Professor at the Fridtjof Nansen Institute, Norway.

Routledge Research in Global Environmental Governance

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Improving Global Environmental Governance Best practices for architecture and agency Norichika Kanie, Steinar Andresen and Peter M. Haas Global Governance of Genetic Resources Access and benefit sharing after the Nagoya Protocol Edited by Sebastian Oberthür and G. Kristin Rosendal

Global Governance of Genetic Resources

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Access and benefit sharing after the Nagoya Protocol Edited by Sebastian Oberthür and G. Kristin Rosendal

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First published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Sebastian Oberthür and G. Kristin Rosendal selection and editorial material; individual chapters, the contributors The right of Sebastian Oberthür and G. Kristin Rosendal to be identified as author of the editorial material, and of the individual authors as authors of their contributions, has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Global governance of genetic resources : access and benefit sharing after the Nagoya Protocol / Sebastian Oberthür, G. Kristin Rosendal. pages cm. — (Routledge research in global environmental governance) Includes bibliographical references and index. 1. Biodiversity conservation—Law and legislation. 2. Convention on Biological Diversity (1992). Protocols, etc., 2010 Oct. 29. I. Oberthür, Sebastian, editor of compilation. II. Rosendal, G. Kristin, editor of compilation. K3488.G56 2013 344.04'6—dc23 2013018199 ISBN: 978-0-415-65625-2 (hbk) ISBN: 978-0-203-07802-0 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

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Contents

List of figures and tables List of contributors Foreword About COST Acknowledgements Abbreviations 1 Global governance of genetic resources: background and analytical framework

vii ix xiii xv xvii xix

1

S E B A S T I A N O B E RT HÜR AND G. KRI S T I N ROS E NDA L

2 The term ‘genetic resources’: flexible and dynamic while providing legal certainty?

18

M O RT E N WA L L ØE T VE DT AND P E T E R JOHAN S CH EI

3 The negotiations of the Nagoya Protocol: issues, coalitions, and process

33

L I N D A WA L L B OT T, F RANZ I S KA WOL F F A N D J U S T Y N A P O ŻAROWS KA

4 The role of non-state actors in the Nagoya Protocol negotiations

60

A M A N D I N E O R S I NI

5 The role of the European Union in the Nagoya Protocol negotiations: self-interested bridge building

79

S E B A S T I A N O B E RT HÜR AND F L ORI AN RABI T Z

6 The role of Switzerland in the Nagoya Protocol negotiations M A R C H U F T Y, TOBI AS S CHUL Z AND MAURI CE TSC H O PP

96

vi

Contents

7 Goals, strategies and success of the African Group in the negotiations of the Nagoya Protocol

114

L I N D A WA L L BOT T

8 The Nagoya Protocol and the diffusion of economic instruments for ecosystem services in international environmental governance

132

F R A N Z I S K A WOL F F

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9 Beyond Nagoya: towards a legally functional system of access and benefit sharing

158

M O RT E N WA L L ØE T VE DT

10 The impact of the Nagoya Protocol on the evolving institutional complex of ABS governance

178

S E B A S T I A N OBE RT HÜR AND JUS T YNA P O ŻARO WSK A

11 Balancing ABS and IPR governance in the aquaculture sector

196

G . K R I S T I N R OS E NDAL , I NGRI D OL E S E N AND MO RTEN WA LLØ E TV ED T

12 Governance options for ex-situ collections in academic research

213

S U S E T T E B I BE R- KL E MM, KAT E DAVI S , L AUREN T G A U TIER A N D S Y LV I A I . M ART I NE Z

13 Conclusions: an assessment of global governance of genetic resources after the Nagoya Protocol

231

S E B A S T I A N OBE RT HÜR AND G. KRI S T I N ROS EN D A L

Index

251

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Figures and tables

Figures 4.1 4.2 6.1 6.2 10.1

Number of NSAs participating as observers in the ABS negotiation process Number of WGABS meetings attended by each NSA registered as observer Total number of submissions of various parties in the Working Group on Access and Benefit Sharing (2003–2010) Number of Swiss submissions in the WGABS (per year from 2003 to 2010) The institutional complex of global ABS governance

61 66 105 106 182

Tables 3.1 3.2 4.1 5.1

Relevant meetings during the ABS negotiations (2002–2010) Key actors’ preferences on main elements of the Nagoya Protocol Positions of the main NSAs regarding the core issues of the Nagoya Protocol Share of countries in biotechnology patent applications under the Patent Cooperation Treaty in 2006

47 52 68 89

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Contributors

Susette Biber-Klemm graduated in 1992 as a doctor in international law of environment and conservation of biological resources at the University of Basel and holds a postgraduate master’s degree in applied ethics. She is a lecturer for interdisciplinary courses in environmental law and international and national law of sustainable development. Since 2003, she has led as a consultant the programme on ABS for academic research at the Swiss Academy of Sciences. Kate Davis is a consultant on ABS issues and the ABS Advisor for Botanic Gardens Conservation International (BGCI). She was previously CBD Implementation Officer at Royal Botanic Gardens, Kew. Her work has centred on helping scientists, horticulturists and national and international policymakers to understand how ABS relates to ex-situ collections and biodiversity research. She was closely involved in the Nagoya Protocol negotiations. Laurent Gautier received his Ph.D. in tropical botany in 1992 at the University of Geneva after 3 years’ fieldwork in Côte d’Ivoire. He has been involved in research projects in floristics, systematics, vegetation studies and monitoring of deforestation in Africa and Madagascar. He is currently head of the flowering plants herbarium at Conservatoire et Jardin Botaniques de la Ville de Genève, Switzerland, and pursues his research and capacity-building activities in Madagascar. Marc Hufty is a professor at the Graduate Institute of International and Development Studies, Geneva, Switzerland. His current research activities focus on multilevel governance processes applied to biodiversity conservation. He coordinates the research topic biodiversity at the Center for International Environmental Studies. Sylvia I. Martinez received her master’s degree in biology from the University of Basel. In 1997, she was appointed coordinator of the biodiversity research cluster of the Swiss Priority Programme Environment of the Swiss National Science Foundation. Currently, she is a coordinator at the Zurich-Basel Plant Science Center—a center of competence in academic plant research of the ETH Zurich and the Universities of Basel and Zurich.

x

Contributors

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Sebastian Oberthür is the Academic Director of the Institute for European Studies, Vrije Universiteit Brussel. Trained as a political scientist with a strong background in international law, his research focuses on issues of international and European environmental and climate governance, with an emphasis on institutional issues and perspectives. He has published widely on these matters. Ingrid Olesen is the research director in breeding and genetics in the Division of Aquaculture in Nofima, Norway, and holds a minor position as adjunct professor at the Norwegian University of Life Sciences in aquaculture breeding and genetics. She holds a Dr. Scient. (Ph.D.) in farm animal breeding. Her research focuses on animal genetics and breeding, genetic analyses of disease resistance, definition of breeding goals, fish welfare and—in collaboration with social scientists—issues of access, rights and benefit sharing of aquaculture genetic resources. Amandine Orsini is a professor of international relations at the Université St Louis, Brussels. Her research focuses on global environmental politics from different angles such as negotiating strategies, business lobbying, nonstate participation, foreign policy analysis or regime complexes. Justyna Pożarowska is a Ph.D. researcher at the Institute for European Studies (IES) at the Vrije Universiteit Brussel (VUB), where she was conducting her research on the interaction of international institutions in the global governance of genetic resources. She has coauthored several articles on international institutions and their interactions in the field of biodiversity with the focus on access and benefit sharing from genetic resources. For several years, she has also been working for the Polish governmental administration dealing with European and international law on public procurement. Florian Rabitz is a Ph.D. researcher at the Institute for European Studies (IES) at the Vrije Universiteit Brussel (VUB). Having a background in political science, he is mainly working on institutional issues in global environmental politics and access and benefit sharing in particular. G. Kristin Rosendal is a research professor with the Fridtjof Nansen Institute, Norway, and holds a Ph.D. in political science. She has published extensively on the formation, implementation and interaction of international regimes on environmental and resource management and trade, in particular issues relating to biodiversity, forestry management, biotechnology and genetic resources. She participates in aWorking Group of the Norwegian Biotechnology Advisory Board and has been a member of the National Committee on Global Change. Peter Johan Schei is an associate researcher at the Fridtjof Nansen Institute, Lysaker, Norway (after having been director from 2004–2012). He was head of the Norwegian delegation to the negotiations and Conferences of the Parties of the Convention on Biological Diversity (CBD) from 1989 to 2004 and served as chair of the CBD’s Subsidiary Body on Scientific, Technical and Technological Advice from 1996 to 1997.

Contributors

xi

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Tobias Schulz is a research fellow at the Swiss National Research Institute for Forest, Snow and Landscape, Birmensdorf, Switzerland. His research interests comprise the impact of political institutions and societal organization on political decision making and implementation regarding environmental and resource protection. Maurice Tschopp studied political science in Lausanne and obtained a master’s degree in development studies in 2011 at the Graduate Institute of International and Development Studies for his thesis on the role of Switzerland in the Nagoya Protocol process. He currently works for the organization Creciendo in Bolivia. Morten Walløe Tvedt is a senior research fellow at the Fridtjof Nansen Institute, Lysaker, Norway. Tvedt has published extensively in the area of biological resource law and intellectual property. Tvedt is currently working on a monograph on patent law and the sui generis option in the plant sector for developing countries. Linda Wallbott is a research associate at the Cluster of Excellence ‘Formation of Normative Orders’ at Johann Wolfgang Goethe-University Frankfurt, Germany. Her research interest focuses on international negotiations and institutional and normative dynamics in global environmental governance. Franziska Wolff is a senior research fellow at the German think tank Öko-Institut and is the deputy head of its Environmental Law & Governance Division. With a background in political science and economics, her research focuses on the management of natural resources.

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Foreword

The adoption of the Nagoya Protocol by COP10 of the CBD at Nagoya, Japan, on 29 October 2010, was a landmark decision in global governance of natural resources. During the negotiations of the CBD in the early 1990s it became increasingly clear that the objectives of conservation and sustainable use of biodiversity had to be complemented with an objective on sharing of benefits from the utilization of genetic resources. Implementation progress and achievement of this third objective of the CBD been rather slow, and the Protocol will hopefully speed up implementation here. Lack of progress in this field is also probably hampering the achievement of the other two objectives of the convention. In September 2011 a group of scholars met at the Fridtjof Nansen Institute, Norway to discuss and analyse the current status and future prospects of global governance of genetic resources after the adoption of the Nagoya Protocol. This book is a result of this meeting, and it gives me great pleasure to congratulate Kristin Rosendal and Sebastian Oberthür who have been the driving forces and editors of this volume. It is a very timely book for the implementation of the Protocol as only 18 parties to the CBD (as of 8 July 2013) have so far ratified or formally accepted it so far. The focus of the book is on actors, agency and architecture, and it will contribute to the academic discussions and implementation challenges regarding the protocol, which has a number of complexities and ambiguities. There may be many reasons for Kofi Annan’s and Braulio Diaz’s appeal to parties to the CBD to ratify the Protocol as soon as possible. Implementation of the CBD as a whole depends to a large extent on the effectiveness of this follow-up. The three objectives of the CBD should be seen in context, and implementation of the Convention and the Protocol is closely linked. In relation to the current work on the Sustainable Development Goals, it is crucial that the world also has the right instruments to manage the living basis for this development. This book will hopefully contribute both to the academic discussions and practical follow-up work to achieve this overarching goal. Peter Johan Schei Trondheim, 8 July 2013

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About COST

COST - European Cooperation in Science and Technology is an intergovernmental framework aimed at facilitating the collaboration and networking of scientists and researchers at European level. It was established in 1971 by 19 member countries and currently includes 35 member countries across Europe, and Israel as a cooperating state. COST funds pan-European, bottom-up networks of scientists and researchers across all science and technology fields. These networks, called ‘COST Actions’, promote international coordination of nationally-funded research. By fostering the networking of researchers at an international level, COST enables break-through scientific developments leading to new concepts and products, thereby contributing to strengthening Europe’s research and innovation capacities. COST’s mission focuses in particular on:

• • •

Building capacity by connecting high quality scientific communities throughout Europe and worldwide; Providing networking opportunities for early career investigators; Increasing the impact of research on policy makers, regulatory bodies and national decision makers as well as the private sector.

Through its inclusiveness, COST supports the integration of research communities, leverages national research investments and addresses issues of global relevance. Every year thousands of European scientists benefit from being involved in COST Actions, allowing the pooling of national research funding to achieve common goals. As a precursor of advanced multidisciplinary research, COST anticipates and complements the activities of EU Framework Programmes, constituting a “bridge” towards the scientific communities of emerging countries. In particular, COST Actions are also open to participation by non-European scientists coming from neighbour countries ( for example Albania, Algeria, Armenia, Azerbaijan,

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xvi About COST Belarus, Egypt, Georgia, Jordan, Lebanon, Libya, Moldova, Montenegro, Morocco, the Palestinian Authority, Russia, Syria, Tunisia and Ukraine) and from a number of international partner countries. COST’s budget for networking activities has traditionally been provided by successive EU RTD Framework Programmes. COST is currently executed by the European Science Foundation (ESF) through the COST Office on a mandate by the European Commission, and the framework is governed by a Committee of Senior Officials (CSO) representing all its 35 member countries. More information about COST is available at www.cost.eu. EUROPEAN COOPERATION IN SCIENCE AND EUROPEAN COOPERATION IN SCIENCE AND TECHNOLOGY

COST is supported by the EU RTD Framework Programme’

ESF provides the COST Office through an EC contract

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Acknowledgements

This book is the product of a workshop on, Access and Benefit Sharing (ABS) Governance after the Nagoya Protocol: Architecture and Actors, co-organized by the Fridtjof Nansen Institute (FNI, Lysaker, Norway) and the Institute for European Studies (IES) at the Vrije Universiteit Brussel (VUB). We are grateful for support for the workshop, which was held in September 2011 at the FNI, and the resulting book by the European Science Foundation’s COST Action IS0802, The Transformation of Global Environmental Governance: Risks and Opportunities, the IES, the VUB’s political science department and the FNI. Furthermore, many thanks go to COST associates Steinar Andresen, Eleni Dellas, Aarti Gupta and Philipp Pattberg for initiating and ameliorating the process leading to developing this book. The workshop was also endorsed by the Earth System Governance Project, to which the book in turn contributes. The workshop brought together a group of scholars, all active and experienced in the field of international environmental policy and law, in particular issues pertaining to the governance of biodiversity and genetic resources. The group featured several disciplines, including political science, law and biology— disciplines most valuable for producing insights into global governance of genetic resources. All chapters of this volume emanated from the workshop, and we are particularly grateful to the contributing authors for their patience with our recurring requests for revisions. We would also like to thank Dr. Kabir Sanjay Bavikatte at Natural Justice (Cape Town, South Africa) for his valuable contribution to the chapter on the role of the African Group in the Nagoya Protocol negotiations. We wish to gratefully acknowledge support by the Norwegian Research Council under its ELSA/FUGE Programme (for the project Stimulating Sustainable Innovation in Aquaculture, project no. 187970), the multidonor ABS Capacity Development Initiative administered by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) and the Research Foundation—Flanders (FWO) for the research project Governance Through Regulatory Complexes: The International and European Management of Genetic Resources (project no. G.0226.08N). This support greatly enabled us to initiate and make our respective contributions to this project. Our thanks also go to Marilena Zidianaki, Maryanne Rygg (FNI) and Chris Saunders for valuable technical, logistical and editorial assistance in bringing

xviii Acknowledgements

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together the various chapters of the volume. We are also grateful to Ane Jørem and Claes Lykke Ragner at the FNI for providing logistical support for the workshop. Finally, we would like to express our gratitude for the very helpful guidance by Routledge. We wish to express particular thanks to Helen Bell, Louisa Earls and Helena Hurd for the excellent cooperation in producing this book. Helen Bell greatly facilitated the writing and editing process by providing invaluable assistance (and staying patient with us). Responsibility for the content remains, of course, with the authors. Sebastian Oberthür (Brussels, Belgium) and G. Kristin Rosendal (Lysaker, Norway) April 2013

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Abbreviations

A/R ABS AG ARDEC AT BIO CBD CDM CGRFA CISDL CITES COP DNA ENB EU FAO FAO Commission FOEN G-77 GHG GIFT GR GRULAC ICC IIFB IIN ILCs ING IPCB IPEN IPPC

afforestation and reforestation access and benefit sharing African Group Aquaculture Research and Development Centre Antarctic Treaty Biotechnology Industry Organization Convention on Biological Diversity Clean Development Mechanism Commission on Genetic Resources for Food and Agriculture Center for International Sustainable Development Law Convention on International Trade in Endangered Species of Wild Fauna and Flora Conference of the Parties deoxyribonucleic acid Earth Negotiations Bulletin European Union Food and Agriculture Organization of the United Nations FAO Commission on Genetic Resources for Food and Agriculture Federal Office for the Environment (Switzerland) Group of 77 greenhouse gas Genetic Improvement of Farmed Tilapia genetic resources Group of Latin American and Caribbean Countries International Chamber of Commerce International Indigenous Forum on Biodiversity Indigenous Information Network indigenous and local communities Interregional Negotiating Group Indigenous Peoples Council on Biocolonialism International Plant Exchange Network International Plant Protection Convention

xx Abbreviations

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IPR ITPGR IUCN JUSCANZ LMAPC LMMC MAT MEA MLS MNCs mRNA NAHO NGO NP NSA OAU OECD OIE PGRFA PIC RAIPON R&D REDD+ SMTA TK TRIPS (Agreement) UNCLOS UNDP UNEP UNFCCC UPOV WGABS WHO WIPO WSSD WTO WWF

intellectual property right International Treaty on Plant Genetic Resources for Food and Agriculture World Conservation Union Japan, United States, Canada, Australia, New Zealand Like-Minded Asian Pacific Countries Like-Minded Megadiverse Countries mutually agreed terms multilateral environmental agreement Multilateral System (of the ITPGR) multinational corporations messenger ribonucleic acid National Aboriginal Health Organization nongovernmental organization Nagoya Protocol nonstate actor Organization of African Unity Organization for Economic Co-operation and Development World Organization for Animal Health plant genetic resources for food and agriculture prior informed consent Russian Association of Indigenous People of the North research and development Reducing Emissions from Deforestation and Forest Degradation in Developing Countries standard material transfer agreement traditional knowledge (Agreement on) Trade-Related Aspects of Intellectual Property Rights United Nations Convention on the Law of the Sea United Nations Development Programme United Nations Environment Programme United Nations Framework Convention on Climate Change International Convention for the Protection of New Varieties of Plants Working Group on Access and Benefit Sharing World Health Organization World Intellectual Property Organization World Summit on Sustainable Development World Trade Organization World Wildlife Fund

1

Global governance of genetic resources Background and analytical framework

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Sebastian Oberthür and G. Kristin Rosendal Introduction The international governance of access to and benefit sharing from genetic resources (ABS) in essence constitutes an attempt to redistribute the benefits of the utilization of biological resources in order to create incentives for biodiversity conservation. Due primarily to land use change but also climate change, pollution and invasive alien species, the loss of biodiversity is estimated to proceed at 100–1,000 times the natural rate; that is, without human activity (Heywood 1995; Millennium Ecosystem Assessment 2005a). The resulting loss of ecosystem services is estimated at an annual US$250 billion (Millennium Ecosystem Assessment 2005b). In response, the world has been seeking ways to create incentives for biodiversity conservation. There is often a mismatch between regions in which benefits are enjoyed and in which the conservation costs are borne (EC 2008). Thus, many tropical developing countries are particularly rich in terrestrial species and related genetic resources (GR) and associated traditional knowledge, whereas the technological capacity to exploit GR is concentrated in developed countries. The users and beneficiaries of GR need access to both wild and improved genetic material in order to carry out innovations and improvements in, for example, chemical industries and for food and medicine. Equitable sharing of benefits between providers and users of GR is held to address the existing imbalance and thereby create incentives for biodiversity conservation in developing provider countries. Politically, it involves a trade-off between access to GR (in which GR users are interested) and benefit sharing (in which GR providers are interested) and, given the distribution of GR and relevant biotechnological capacity, a strong North-South conflict (Brand et al. 2008). The Convention on Biological Diversity (CBD) adopted in 1992 constitutes the centre of international ABS governance that has been fleshed out in the 2010 Nagoya Protocol. Against the backdrop of the rise of biotechnology, the CBD in 1992 first established a framework of global ABS governance. This framework was integrated into the broader framework for the governance of biological diversity established by the CBD. Concretely, the CBD instituted ‘the fair and equitable sharing of the benefits arising out of the utilization of genetic resources’ as one of its three overall objectives next to the ‘conservation of biological diversity’ and

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2

Sebastian Oberthür and G. Kristin Rosendal

‘the sustainable use of its components’ (Art. 1 CBD). However, ABS remained a contested issue in international politics not least due to failure of effective implementation of the CBD framework. Consequently, 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 was adopted at the tenth Conference of the Parties (COP) to the CBD in October 2010, aiming to improve and enhance the existing framework. The Nagoya Protocol has been considered a major achievement of global environmental governance, but it has also been coined a ‘masterpiece of ambiguity’ (ENB 2010). The Protocol forms the occasion for this book that aims to take stock of the status of and the prospects for global ABS governance after the Nagoya Protocol in an accessible manner. In so doing, we are trying to provide a useful resource and reference for those interested in broader debates about global environmental governance by linking to core analytical themes of the Earth System Governance Project (Biermann et al. 2009a). ABS has been in the centre of attention of neither international environmental politics nor the community of scholars analysing global environmental governance. Much of the existing literature on ABS governance is indeed specialised and technical. We are intent on enabling a broader uptake of the theme of ABS governance and the relevant lessons and inputs it can provide for general debates about global environmental governance. To this end, we especially relate to three of the core analytical problems identified in the science plan of the Earth System Governance Project (Biermann et al. 2009a). Under the auspices of the International Human Dimensions Programme on Global Environmental Change (IHDP), the Earth System Governance Project assembles the largest social science research network in the area of governance and global environmental change. As regards the analytical problems identified in this context, ABS governance itself is, first, about ‘allocation and access’, fairness and equity and their relationship to and importance for environmental protection. Second, we explore this field of governance through the lens of ‘agency’ by exploring the role of various actors in the elaboration of the Nagoya Protocol. Third, we explore different elements of the ‘architecture’ of international ABS governance. We elaborate on the themes of agency and architecture as they relate to ABS governance in general and the Nagoya Protocol in particular further in this introductory chapter. Finally, it is worth noting that the book combines different disciplinary perspectives, especially including legal and political science analysis. In this first chapter, we set the scene for our endeavour in three main steps. First, we briefly present the background and cornerstones of international ABS governance from the CBD to the 2010 Nagoya Protocol. This discussion provides a baseline for the elaboration of key elements of ABS governance after the Nagoya Protocol in later chapters. Second, we introduce the conceptual framework of the book by elaborating on the analytical concepts of ‘architecture’ and ‘agency’ in relation to ABS as an issue of ‘allocation and access’. As mentioned, this discussion attempts to embed the volume in the broader debates of global environmental governance. Third, the chapter provides a brief overview of the

Background and analytical framework 3 structure of the volume and the content of the individual contributions. Overall, the book analyses the role of a variety of actors in the emergence of the Nagoya Protocol and provides an up-to-date assessment of core features of the architecture of global ABS governance after the Nagoya Protocol.

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Background: international ABS governance towards Nagoya To understand international ABS governance, it is important to understand the key terms ‘biological diversity’ and ‘genetic resources’ as well as their relationship. Biological diversity is a broad concept that has been used to embody the variability among living organisms from all sources, including diversity within species, among species and of ecosystems (Art. 2 CBD). Genetic resources are the hereditary material (genes) in all animals, plants and mircoorganisms; the concept refers to genetic material of actual or potential value for humanity (ibid.). Genetic diversity or variability is necessary to sustain vitality in both wild and domesticated plants and animals and can also be central for the development of new and improved products, especially within the chemical and pharmaceutical sectors. Genetic diversity and GR are a function of both species and ecosystem diversity: Either way, high levels of biological diversity bring with them richness of GR. In many cases, especially within the medicinal sector, traditional knowledge about the characteristics, effects and possible uses of particular plants (and other species) that is held by indigenous and local communities (ILCs) is crucial for efforts to utilize and exploit related GR in biotechnology and the life sciences. At the same time, the relevant communities contribute to the conservation and sustainable use of biological diversity, including GR. However, the traditional knowledge of ILCs has frequently been subject to exploitation in the process of utilization of GR without appropriate acknowledgement and benefit sharing (CBD 2009; von Lewinski 2008). As such, ABS often refers to GR as well as the associated traditional knowledge, with the protection of the latter facing particular hurdles. For ease of reference, any reference to GR in the following is meant to include a reference to traditional knowledge (unless indicated otherwise). Economic interest in and value of GR has grown with the development of modern biotechnology since the 1970s. User countries and corporations tend to argue that there is little money to be shared from bioprospecting while simultaneously criticizing ABS legislation in provider countries for undermining access and innovation efforts (Grajal 1999). Somewhat paradoxically, if the latter were the case, there would also seem to be some potential for reaping and sharing benefits. Still, the commercial value of GR is in itself greatly disputed (McGraw 2001; Rosendal 2006). The value of products derived from GR worldwide has been estimated between US$500 and 800 billion (ten Kate and Laird 1999). Indirectly assessing the value in the pharmaceutical sector, traditional medicinal knowledge has been found to increase the success ratio of bioprospecting by 400 per cent (Gehl Sampath 2005; Swanson 1995: 59).

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The development of modern biotechnology1 coincided with increased privatization of agricultural and pharmaceutical research in the 1970s. This brought about an economic incentive to introduce patent protection at the same time as technological capability grew to apply patents in the field. Modern biotechnology made it possible to fulfil the legal patent criteria for inventions involving biological material (Crespi 1988). Since patenting is a very costly affair, it has been largely dominated by multinational corporations (Gleckman 1995). At the onset of the CBD negotiations, developing countries held only about 1 per cent of all patents in biotechnology, and by 2005, that figure had increased to 4 per cent (UNDP 2005: 135; WCED 1987). Inherent in this development was an imbalance of the appropriation of the benefits of the utilization of GR between the providers (mainly developing countries) and the users (mainly industrialized countries) of these resources. Whereas the bulk of the world’s remaining terrestrial species diversity is found in tropical developing countries, it is the developed countries that largely possess the (bio)technology to reap economic benefits from the genetic variability of these resources on a large scale. This imbalance is foundational for the North-South conflict that has structured international ABS politics from its beginning (Brand et al. 2008; Rosendal 2000). This imbalance was further accentuated by changes in the governance of property rights to GR in the years preceding the CBD, moving from the nonexclusiveness for all genetic material to exclusive rights to parts of the genetic material. These changes, which were another essential ingredient of the aforementioned North-South conflict, took place in particular within the Food and Agriculture Organization of the UN (FAO) and the emerging World Trade Organization (WTO). During what has been coined the ‘seed wars’ in the FAO, it was seen as a victory of developing countries when the FAO Undertaking on Plant Genetic Resources for Food and Agriculture of 1983 established that all categories of relevant plant GR should be considered ‘common heritage of mankind’ and should thus be subject to free exchange for exploration, preservation, plant breeding and scientific research (Andersen 2008; Pistorius and van Wijk 1999; Raustiala and Victor 2004). Responding to the emerging application of intellectual property rights (IPRs) within the life sciences, however, an Agreed Interpretation of the Undertaking adopted in 1989 signified an acceptance of the principle of payment for legally protected varieties, hence making IPRs compatible with the Undertaking. At the same time, developed countries succeeded in strengthening and harmonising IPRs in the WTO through the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This was accompanied by an expansion of the patent system into the area of biotechnology, which led to the problematic relationship between the CBD and TRIPS (Tolba 1998: 144). Overall, these developments gave rise to asymmetries between actor interests along two dimensions. First, the increased technological and economical ability to exploit GR and the mentioned changes of the property rights framework gave developed countries the major benefits from use, with little or no benefits accruing to the developing countries. Second, the global distribution of terrestrial

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Background and analytical framework 5 species diversity gave the South the major burden of biodiversity conservation, with few costs directly falling on the North. As a particular feature distinguishing biodiversity from other international environmental and resource management issues, the (primary) owners/stewards of biodiversity were asked to change their behaviour—to conduct resource conservation and submit to stricter IPR regulations (Rosendal 2000)—for the benefit of the (primary) users. In response, developing countries successfully argued for national sovereignty over GR in the CBD negotiations between 1989 and 1992 (Rosendal 2000). Their call for compensation gathered widespread acceptance and culminated in the three-fold objectives of the CBD (conservation, sustainable use and benefit sharing), of which fair and equitable sharing of benefits arising from utilization of GR was the most controversial. Article 15 of the Convention recognises the sovereign rights of countries over their natural resources, and as a result, they may determine access to GR under their jurisdiction. Access to GR is to be subject to ‘prior informed consent’ (PIC) of the provider country and is to be granted on the basis of ‘mutually agreed terms’ (MAT). The system thus entails a multilateral framework for how domestic legal systems can be set up to guide the conclusion of a contract between the provider and the user of GR. Generally, countries should share in a fair and equitable way the benefits arising from the commercial and other utilization of GR with the party providing such resources. In essence, the CBD creates an ABS system that aims to facilitate commercial transactions (largely between a provider state and a private user) based on contracts. Contracts between GR users and providers should indicate their reciprocal rights and obligations, including appropriate arrangements for the sharing of the benefits (in various forms), and thus support transparency. In this way, the commercialisation of GR could become mutually advantageous and the resulting revenues support conservation and sustainable use of GR/biodiversity (Brand et al. 2008; Tvedt and Young 2007). Overall, the inclusion of ABS in the CBD was not only the result of a strategy by developing countries in the battle over property rights over GR, but it also possesses an environmental rationale. In particular, it is construed to provide an (indirect) incentive for biodiversity conservation. Estimates of the number of existing species in the world vary from about 5 to 100 million (Wilson 1992), of which only some 1.9 million have been described scientifically. The current rate of species extinction is extremely high (Heywood 1995; Wilson 1992). While the percentage of protected areas has doubled from 6 to 12 per cent since 1990, the quality of the protection is still contested (Millennium Ecosystem Assessment 2005b: 11). The UN Millennium Ecosystem Assessment (2005b) concludes that biodiversity loss leads to an annual human deprivation of US$250 billion in various kinds of ecosystem services. Under the circumstances, ABS can be seen as a means to channel some of the (economic) benefits arising from the use of biological diversity back to its (primary) owners so as to incentivize them to conserve this diversity (for future income) (Koester 1997; Rosendal 2000; see also Wolff, this volume). As the value of GR increases with the advances of biotechnology, so could, in this conceptualisation, the incentives for biodiversity conservation.

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The lack of effective implementation of ABS provisions of the CBD resulted in requests for a strengthening of the system by developing countries and the launch of negotiations on what became the Nagoya Protocol (Le Prestre 2002; Rosendal 2000; see also Wallbott et al., this volume, for further details). While implementation of access procedures in developing countries remained weak as well, deficiencies in implementation of benefit-sharing obligations in developed countries remained the main barrier to effective ABS governance. User countries failed to effectively implement benefit-sharing requirements into their national legal systems, and to the extent they did, actual implementation and enforcement remained deficient (CBD 2007; Tvedt and Young 2007). As a result, cases of ‘biopiracy’ (i.e. the illegal access to and utilization of GR in circumvention or neglect of ABS requirements) proliferated (see Mgbeoji 2006; Robinson 2010) and requests by developing countries for enhancing the international ABS regime intensified. The Nagoya Protocol adopted as a result in October 2010 reconfirms and elaborates the basic ABS approach of the CBD. It was signed by 91 countries and the European Union (EU) and will enter into force once 50 states have ratified it (count as of April 2013: 16). As an instrument of international law, the Protocol does constitute a legally binding treaty, as demanded by developing countries (and resisted by many developed countries). In the following, we provide a snapshot of its main contents, the various elements of which are further elaborated in other contributions to this volume (especially, Wallbott et al., this volume; Tvedt, this volume; on the Nagoya Protocol, see also for the following, Buck and Hamilton 2011; Morgera and Tsioumani 2011; Nijar 2011). Core elements of the Protocol include the elaboration of international access standards (demanded by developed countries) and of user measures (a demand of developing countries). As regards access to GR, the Protocol obliges provider countries that decide to require PIC to provide for legal certainty, clarity and transparency of their domestic ABS legislation and for clear rules and procedures for requiring and establishing MAT, as further detailed in Article 6 of the Protocol. As regards compliance/user measures, parties to the Protocol shall take appropriate measures securing that the GR utilized on their territory have been accessed in accordance with PIC and MAT as required by the provider country in its national legislation. They also have to provide appropriate, effective and proportionate measures to address situations of noncompliance (Art. 15). To support compliance, parties are also obliged to take measures to monitor the utilization of GR through the designation of one or more checkpoints. The checkpoints will collect from users information on the source of GR, if PIC was received, if MAT were established and/or on GR utilization. Permits issued by user countries can serve as (nonobligatory) internationally recognized certificates of compliance that contain such relevant information. Importantly, countries (especially user countries) are also obliged to ‘ensure that an opportunity to seek recourse is available under their legal systems (. . .) in cases of disputes arising from mutually agreed terms’ and to take effective measures regarding access to justice and mutual recognition and enforcement of foreign judgments and arbitral awards (Art. 18). In other words, provider countries are required to take action to enable enforcement of MAT that is

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Background and analytical framework 7 to be provided for under the jurisdiction of user countries. A long-standing central demand of developing countries to establish a mandatory disclosure requirement regarding GR and associated information in patent application did—again—not succeed in the Nagoya negotiations. As regards traditional knowledge, the Protocol establishes/reconfirms similar requirements as regards GR with respect to PIC by ILCs and the establishment of MAT ensuring fair benefit sharing, including the taking of measures to address situations of noncompliance and the possibility of recourse and access to justice. The main difference, however, consists in the requirements being formulated in less binding language, being subject to domestic law of provider countries as well as the nonapplicability of the monitoring system (‘checkpoints’) and the internationally recognized certificate of compliance. As regards the scope of resources covered, the Protocol covers not only GR but also their derivatives (Art. 2), which are currently more often the source of the benefits. The exact temporal and functional scope is still subject to debate because of the ambiguity of some of the language of the Protocol (see Tvedt, this volume). Providers wished for wide definitions of the temporal and the functional scope of the Nagoya Protocol, while users preferred to limit its applicability to GR. It is worth noting that the Protocol envisions the establishment of a Global Multilateral Benefit-Sharing Mechanism applicable to transboundary situations for which it is not possible to grant or obtain PIC (Art. 10). The exact need for and possible form of this mechanism remain to be determined. The relationship with other international institutions forms another key element of the Protocol. Overall, the relevant provisions of the Protocol (esp. Art. 4) give general guidance to the future ABS-related development (and interpretation) of other relevant international institutions. Accordingly, complementary specialized ABS regimes cannot only be maintained but may also be newly created and further developed (as demanded by the users), provided that they are supportive of and do not run counter to the objectives of the Nagoya Protocol and the CBD (Art. 4.2; as demanded by provider countries). The CBD acknowledges the need to balance ABS with IPRs. Its Article 16.5 requires parties to cooperate to ensure that IPRs are supportive of and do not run counter to the CBD objectives. Various proposals for making disclosure of the origin of genetic material as well as information to confirm that it has been acquired in accordance with PIC and MAT requirements part of mandatory patenting criteria have been raised and failed during negotiations (Tvedt 2006; see also Tvedt, this volume). Disclosure would also strengthen the search for prior art before a patent is granted (WIPO 2005). Such a disclosure requirement could take softer or harder forms (depending on the kind of sanction for noncompliance) and be a valuable tool for implementing and enforcing existing benefitsharing obligations (Kamau 2009). It remains on the agenda of negotiations on international IPR standards under the WTO and the World Intellectual Property Organization (WIPO). The underlying structure of ABS-IPR systems is central to the debate on ABS governance and the understanding of the ABS/IPR debate. IPRs are guaranteed

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by governments and not touched under ABS, while ABS is trying to correct the consequences by delegating to decentralised negotiations between private/public actors. IPR systems have a long history of evolution and are firmly grounded with effective domestic compliance mechanisms that are able to regulate international transactions in addition to those involving GR. Finally, a number of provisions of the Nagoya Protocol that point towards future work deserve mentioning. Elements to be further elaborated/addressed in the future include the elaboration of the aforementioned Global Multilateral Benefitsharing Mechanism (Art. 10); the ABS Clearing-House to serve as a means for sharing relevant information (Art. 14); model contractual clauses (Art. 19); codes of conduct, guidelines and best practices and/or standards (Art. 20); awareness raising (Art. 21); capacity building (Art. 22); monitoring and reporting (Art. 29); procedures and mechanisms to promote compliance (Art. 30); and regular assessment and review of the effectiveness of the Protocol (Art. 31).

Analytical framework: architecture and agency This volume employs the two analytical perspectives of architecture and agency to shed light on international ABS governance after the Nagoya Protocol as an issue of ‘allocation and access’. Whereas in other areas of international environmental governance questions of ‘equity’ and ‘fairness’ are usually addressed in order to enable/advance the solution of an environmental problem and thus as a means to another end, it constitutes much more of an end in itself as regards ABS. For example, equity is a principle of the United Nations Framework Convention on Climate Change (UNFCCC) that guides parties in their efforts to prevent ‘dangerous anthropogenic interference with the climate system’ as the ultimate objective of the UNFCCC (see Arts. 2 and 3 UNFCCC). In contrast, the fair and equitable sharing of the benefits arising out of the utilization of GR constitutes the very objective of ABS governance under the CBD, whereas the resulting environmental effects are assumed more than explicitly addressed and pursued (see previous discussion). In the following, we elaborate on the concepts of architecture and agency as they guide the analysis in and the contributions to this volume. Architecture: internal and external dimensions According to the science plan of the Earth System Governance Project, the notion of governance architecture refers to ‘the interlocking web of widely shared principles, institutions and practices that shape decisions at all levels in a given area of earth system governance’ (Biermann et al. 2009a: 31). It directs attention to the ‘larger systems of institutions and governance mechanisms in particular areas’ (ibid.: 32). Thereby, the problem of architecture very much overlaps with what others have referred to as the ‘fragmentation’ of global environmental governance (e.g. Biermann et al. 2009b) and with the notion of the interplay/ interaction of international institutions (Oberthür and Gehring 2006; Young 2002) and of institutional complexes (Oberthür and Stokke 2011; Raustiala and Victor

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Background and analytical framework 9 2004). What is common to these concepts is that they aim to enable an exploration of the cogovernance of issue areas in international affairs by various institutions. Attention is thus broadened beyond the ‘traditional’ focus on individual institutions in order to reflect that, given the proliferation of international institutions in global environmental governance and beyond over the past decades, such institutions are not created or operated on an institutional ‘clean slate’ (Raustiala and Victor 2004: 296) but usually enter and operate in a densely populated institutional environment. As such, understanding the dynamics of governance in a particular issue area requires investigation of the broader setting of institutions interacting in this governance. We broaden the notion of architecture for our purposes to also include the ‘interior design’ of the resulting ‘building’ or governance structure. This volume aims at taking stock of the status and prospects of international ABS governance. To this end, it is not only important to analyse the broader complex of international institutions contributing to governance in this issue area. It is also crucial to understand and investigate the main governance approach or approaches pursued within the issue area and its central institution(s). In focus in this respect are the mix of policy instruments (regulatory, informational, market-based, etc.), their subjects and objects, that together amount to the overall governance approach or mode of governance (hierarchy, markets, networks, etc.). This internal dimension of ‘architecture’—contrasting and complementing the aforementioned ‘external’ dimension—remains important even if it may not constitute a particularly new area of research: Its design, the ‘fit’ with relevant underlying governance conditions (Galaz et al. 2008; Young 2002) and the specific ‘endogenous-exogenous alignment’ (Young 2010) remain essential for understanding the performance and effectiveness of governance. Eventually, the internal and the external dimension of ‘governance architectures’ are likely to be closely related, and paying attention to both promises a much richer picture and understanding of governance in an issue area, as we hope to demonstrate further in this volume. After all, an important aspect of the interaction of various institutions of a governance architecture concerns the conflicts, tensions, complementarity or synergy that arise in the interplay of the governance approaches pursued in each of the elemental institutions. Contributions to this volume explore both the internal and external dimensions of the global ABS governance architecture. The internal dimension is in focus in the chapters by (1) Wolff, who elaborates on the market-based approach pursued under the CBD as further developed with the Nagoya Protocol in comparison with economic instruments in other areas of international environmental/biodiversity governance, and (2) Tvedt, who explores in some detail the main elements of the ABS governance arrangements under the CBD and its Nagoya Protocol, reflecting on the conditions that might be required for effective (‘functional’) implementation. Oberthür and Pożarowska complement the internal emphasis of these chapters with an exploration of the external dimension of the global ABS governance architecture focusing on the effects of the Nagoya Protocol on the evolving division of work in the relevant institutional complex. The chapters by Rosendal

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and colleagues and Biber-Klemm and colleagues operate at the interface of the internal and the external dimension: They investigate how two particular sectors (aquaculture and academic research/ex-situ collections) operate within the multiinstitutional governance architecture, including the question of whether and, if so, where and at what level appropriate governance arrangements may be developed.

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Agency: actors and actor constellations Public policy and governance is the result of the interaction of different players. Consequently, identifying key actors and analysing the main factors driving them as well as their interaction and influence is an important if not indispensable task if we want to understand the evolution of policy and governance institutions. It thus seems logical for this volume to zoom in on the role of different actors in the negotiations on the Nagoya Protocol, one of the most significant developments in global ABS governance of recent times, which this volume aims to explore and understand. This focus is in line with and speaks to the role of ‘agency’ as highlighted in the science plan of the Earth System Governance Project (Biermann et al. 2009a: 36–43). It is specifically focuses our analysis on the role of different actors in decision making rather than implementation. Much attention has been paid in recent research in global environmental governance to the role of nonstate actors and hybrid forms of agency and cooperation. As the science plan of the Earth System Governance Project argues, this shift in focus from states and intergovernmental cooperation to nonstate actors and transnational cooperation and cooperation across the private–public divide finds its rationale in the growing awareness of the limited steering capacity of states and an apparent ‘reconfiguration of authority in the realm of earth system governance’ (Biermann et al. 2009a: 38) that assigns new importance and responsibility to agency beyond states and governments (see discussion and references in Biermann et al. 2009a: 36–43). Rather than simply following this focus of attention, we pursue our particular selection of actors in function of the aim and context of this volume and the field of governance it explores. First of all, the volume in particular aims at shedding light on how the 2010 Nagoya Protocol came about and has affected and shaped global ABS governance. As an instrument of international law in the framework of the United Nations, the Protocol was negotiated and adopted by states, more precisely the parties to the CBD. It is these states that possess the authority to shape the intergovernmental institution in focus—and bear the corresponding responsibility. Furthermore, intergovernmental institutions in general (i.e. also beyond the CBD and its Nagoya Protocol) remain formative in global ABS governance (Andersen et al. 2010; Oberthür and Pożarowska, this volume). Overall, a focus on state actors (and their constellations) thus seems in order for our purposes. Without forgetting about the role of nonstate actors, there are good reasons to pay attention to and not forget about states and the evolving forms of their cooperation in global environmental governance.

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Background and analytical framework 11 The five chapters of this volume that address agency reflect this focus. Contributions on individual states or specific coalitions capture both a range of positions and a range of negotiation strategies. One chapter addresses the role of the EU and its member states as the most important developed country actor in the Nagoya process (Oberthür and Rabitz, this volume). Two chapters focus on the intellectual/ entrepreneurial leadership by Switzerland (Hufty et al., this volume) and the African Group (Wallbott, this volume) as small/weak states with prominent roles in the negotiations. Amandine Orsini complements this governmental focus with an analysis of the role of various nonstate actors in the Nagoya process. A specific group of nonstate actors, namely those hosting and/or accessing public ex-situ collections (especially for academic research), are furthermore explored in the chapter by Biber-Klemm and colleagues, although exploring their role not in the international negotiations but in trying to implement appropriate ABS policies. Finally, the chapter by Wallbott and colleagues complements the analyses of individual actors and specific actor coalitions by analysing the role of all major actors and coalitions in the negotiations on the Nagoya Protocol. Finally, it is worth pointing to the ambiguities concerning the concepts of developing and developed/industrialized countries, or the ‘South’ and the ‘North’, as common in analyses of ABS governance. The concepts tend to obscure obvious and significant political, economic and cultural differences within the two groups. As large parts of the international debate on biodiversity have been formulated as part of a North-South conflict, it may make sense to stick to this admittedly simplified dichotomy. However, the dichotomy has become more fragmented and it has become more common to speak about providers and users. This dichotomy of providers and users also tends to follow the traditional ‘South’-‘North’ division, although it may involve both state and nonstate actors. Users may, for instance, come in the form of a multinational corporation or a hybrid between academic and commercial interests, and a local or indigenous community, a university or a ministry may constitute providers.

Overview of chapters Turning to the overview of the chapters of this volume, the further exploration of agency and architecture in the global governance of genetic resources is preceded by another scene-setting contribution following this introductory chapter. In Chapter 2, Morten Walløe Tvedt and Peter Johan Schei elaborate, from a legal perspective, on the concept of ‘genetic resources’, which is central to the understanding of how ABS can be governed. Tvedt and Schei argue that, as biotechnology and knowledge on genetics change, the definition of ‘genetic resources’ on the one side requires some flexibility and a dynamic interpretation to enable the ABS system to capture future potential values of genetic material. On the other side, for a legal system to provide for legal certainty (to be enforced by courts), the main definition needs to have some level of stability. The authors argue that the CBD’s definition of ‘genetic resources’ is robust enough to cope with unforeseen challenges.

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The subsequent five chapters analyse the role of key actors and actor coalitions in the emergence of the Nagoya Protocol. While the first of this set of chapters provides an overview of the negotiation history of the Nagoya Protocol, the four subsequent chapters look into the role of individual actors and groups of actors. They cover both important provider and user interests and highlight notions of leadership and coalitions. In Chapter 3, Linda Wallbott, Franziska Wolff and Justyna Pożarowska analyze the history of the ABS negotiations leading to the Nagoya Protocol in 2010. They introduce six key issues addressed in the negotiations, including the legal nature (binding international treaty or not), scope (what GR and utilization), traditional knowledge, international standards for accessing GR in provider countries, compliance with user measures (including the question of mandatory disclosure requirements) and the Protocol’s relationship with other international agreements. Importantly, the chapter elaborates on the interests of key (coalitions of ) state actors and how they shaped the dynamics of the Nagoya process. These coalitions include the Like-Minded Megadiverse Countries, the Like-Minded Asia-Pacific Countries, the Group of Latin American and Caribbean Countries, the African Group, the EU and non–EU developed countries. On this basis, the authors trace the dynamics of the road towards the Nagoya Protocol. In Chapter 4, Amandine Orsini investigates the role of nonstate actors in the negotiations of the Nagoya Protocol. She characterizes the key nongovernmental organizations, firms and indigenous groups that took part in the negotiations, analyzes their positions and investigates their lobbying strategies. Though small in number, a broad variety of nonstate actors were actively engaged in the negotiations. Most of them came from developed countries and only one organization had environmental issues on its advocacy agenda. All identified groups have acted through collaborative networks and have usually focused on specific points, to the detriment of a broader political agenda. Even though she cautions that their influence on the negotiation process is hard to evaluate, Orsini argues that the outcome of the negotiations correlates more with the positions of indigenous and nongovernmental organizations than those of business actors. In Chapter 5, Oberthür and Rabitz analyse the role of the heaviest weight among developed countries in the Nagoya process: the EU. They argue that the EU pursued rather conservative (status quo-oriented) interests but turned somewhat more moderate after a policy review in 2006/07. The EU’s status quo orientation was not least rooted in strong biotechnology interests and corresponding IPR legislation. Initiated by the European Commission, the policy revision in 2006/07 was driven by the desire to unblock the broader CBD agenda and to live up to expectations of EU support for multilateralism and global environmental governance. The policy revision may have served both EU interests and international objectives. As the authors argue, it allowed the EU to achieve most of its objectives at the Nagoya conference, and it facilitated or even enabled progress (even though limited) towards more effective ABS governance in the form of the Nagoya Protocol.

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Background and analytical framework 13 Chapter 6 investigates the role of Switzerland in the Nagoya Protocol negotiations. Marc Hufty, Tobias Schulz and Maurice Tschopp argue that the country, even though a small state, had a significant impact on the negotiations and played a bridge-building role between developed and developing countries. The weight of the Swiss life industry in the national economy and in the ‘global bioeconomy’ helps us understand Switzerland’s active engagement in the negotiations. Structural and ‘contingent’ explanatory factors identified by the authors include a tradition of bridge-building, significant bureaucratic autonomy, a technical rather than political agenda, technical expertise and long-term involvement of Swiss delegates and their action as ‘negotiation facilitators’. Overall, the chapter contributes to a better understanding of how small states, through the role of intellectual leaders, may have an impact (in the special setting of the CBD and the Nagoya Protocol). In Chapter 7, Linda Wallbott examines the role of the African Group in the negotiations and points to both intellectual and entrepreneurial elements in the strategy of the Group, deploying scientific and moral arguments. By making the adoption of a Strategic Plan for Biodiversity 2011–20 and the Strategy for Resource Mobilization conditional upon the adoption of the ABS Protocol (together with other developing countries), the African Group used classical bargaining tactics of issue linkage and package deals. Apart from achieving a legally binding protocol and the seed of a Global Multilateral Benefit-Sharing Mechanism, the African Group had to accept watered-down provisions on most of their goals. Similar to the chapter on Switzerland, Wallbott also highlights that ‘weak’ states can exert leadership to influence the course of multilateral negotiations. The next five chapters address the architecture of ABS governance. The first two of these analyse the internal dimension, whereas the following three chapters turn towards the external dimension. In Chapter 8, Franziska Wolff analyses ABS regulation under the CBD as specified by the Nagoya Protocol as a market-based mechanism for ecosystem services (conceived of as the benefits humans derive from ecosystems such as GR and carbon sequestration). The chapter elucidates the particular features of the market for GR by comparing it with three other economic instruments existing or emerging at the international level: the International Treaty for Plant Genetic Resources for Food and Agriculture with its multilaterally negotiated, fixed benefit-sharing ‘fee’; the market for emission certificates from forest carbon projects under the Kyoto Protocol’s Clean Development Mechanism; and the emerging global payment scheme for reducing greenhouse gas emissions from deforestation and forest degradation in developing countries (REDD+). In focus are the ecosystem services targeted, the instruments’ evolution, their regulatory content and their effects. Against the backdrop of an intensifying policy discourse promoting the use of economic instruments, the chapter cautions against viewing these instruments as a panacea for the governance of biodiversity and ecosystem services. Chapter 9 by Morten Walløe Tvedt provides a legal discussion of how ABS can be made legally functional in practice for users and providers of GR. Walløe

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Tvedt examines how various aspects of the ABS system of the Nagoya Protocol could be designed in order to achieve the aim of sharing benefits with providers of GR. The author starts from the insight that incentives are needed for users of GR to share the benefits created in a fair and equitable manner. On this basis, the core issues of the Nagoya Protocol are assessed from a legal point of view, including user measures (disclosure of origin), scope (point of access versus point of utilization of GR) and the relationship to other international agreements. Overall, the chapter explores how user obligations and access regulations set out in the Nagoya Protocol can be harmonized so as to form a legally functional ABS system. In Chapter 10, Sebastian Oberthür and Justyna Pożarowska undertake to assess the impact of the Nagoya Protocol on the complex of international institutions involved in ABS governance. Building on the notion of ‘interplay management’, they introduce the institutional complex of global ABS governance, distinguishing among three different subsections of this overall complex that are varyingly affected by the Protocol. The authors argue that, while clarifying and consolidating (rather than changing) the current division of labour and balance within the broader institutional complex, the Nagoya Protocol provides guidance for and frames future developments of and within other elemental institutions of this complex. Post-Nagoya developments within the different sub-complexes of global ABS governance provide evidence that, while overall consolidating the institutional complex, the Protocol has spurred important developments in other elemental institutions. Chapter 11 by G. Kristin Rosendal, Ingrid Olesen and Morten Walløe Tvedt aims to examine actors’ perceptions of needs for regulating access to aquatic GR and legal protection of the results. Available options are discussed in light of the scope of the Nagoya Protocol and its relationship to other international institutions. The normative objective to maintain affordable access to improved breeding material for food security illustrates the nature of breeding material as a public good in line with ABS thinking. As patenting may remove basic knowledge and GR from the public domain, many actors warn that it can have negative implications for aquaculture as a food-providing sector. The more dominant gene flow from South to South in aquaculture raises new and interesting questions for regional ABS governance in aquaculture. Still, for developing countries, it may be important to establish legislation based on the principles and rules of the ABS regime under the CBD and the Nagoya Protocol in order to strengthen their position vis-à-vis multinational corporations that show an interest in accessing aquatic GR. In Chapter 12, Susette Biber-Klemm, Kate Davis, Laurent Gautier, and Sylvia I. Martinez discuss options for ABS governance of GR stored ex situ relating to noncommercial academic biodiversity research. Ex-situ collections provide an essential infrastructure for scholarly research into biodiversity, yet they face concerns of providers that they enable commercial utilization of resources originally accessed under the flag of noncommercial intent. The problem consists in a dilemma between the providers’ interest in control and appropriate benefit sharing and the need of research for unbureaucratic access to and exchange of the resources. The chapter investigates several approaches to resolving the problem.

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It discusses whether a uniform sectorial approach could ensure fair and equitable benefit sharing and be feasible. Based on the analysis of three case studies, it explores the potential of the Global Multilateral Benefit-Sharing Mechanism (Art. 10 Nagoya Protocol) and the voluntary approaches of the Protocol’s Articles 19 and 20. It concludes that a combined bottom-up/top-down approach may be most appropriate and help pave the way to agreement on general principles at the international level. In the concluding Chapter 13, we attempt to synthesize the findings of this volume into an overall assessment of the status and prospects of global ABS governance after the Nagoya Protocol.

Note 1 While ‘old’ biotechnology includes traditional activities such as brewing beer and baking bread, modern or ‘new’ biotechnologies refers to activities like tissue culture and recombinant-DNA (r-DNA) techniques.

Bibliography Andersen, R. (2008) Governing Agrobiodiversity: Plant Genetics and Developing Countries, Aldershot, UK: Ashgate. Andersen, R., Tvedt, M.W., Fauchald, O.K., Winge, T., Rosendal, G.K. and Schei, P.J. (2010) International Agreements and Processes Affecting an International Regime on Access and Benefit Sharing under the Convention on Biological Diversity. Implications for Its Scope and Possibilities of a Sectoral Approach, Lysaker, Norway: Fridtjof Nansen Institute. Biermann, F., Betsill, M.M., Gupta, J., Kanie, N., Lebel, L., Liverman, D., Schroeder, H. and Siebenhüner, B., with contributions from Conca, K., Costa Ferreira, L. da, Desai, B., Tay, S. and Zondervan, R. (2009a) Earth System Governance: People, Places and the Planet, Science and Implementation Plan of the Earth System Governance Project. Earth System Governance Report 1, IHDP Report 20. Bonn, IHDP: The Earth System Governance Project. Biermann, F., Pattberg, P., van Asselt, H. and Zelli, F. (2009b) ‘The Fragmentation of Global Governance Architectures: A Framework for Analysis’, Global Environmental Politics 9(4): 14–40. Brand, U., Görg, C., Hirsch, J. and Wissen, M. (2008) Conflicts in Environmental Regulation and the Internationalisation of the State. Contested Terrains, London/New York: Routledge. Buck, M. and Hamilton, C. (2011) ‘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’, Review of European Community and International Environmental Law 20(1): 47–61. CBD (2007) Analysis of Gaps in Existing National, Regional and International Legal and Other Instruments Relating to Access and Benefit-sharing, UN Doc. UNEP/CBD/WGABS/5/3, 13 September 2007. CBD (2009) Report of the Meeting of the Group of Technical and Legal Experts on Traditional Knowledge Associated with Genetic Resources in the Context of the International

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Regime on Access and Benefit-Sharing, Convention on Biological Diversity, UN doc. UNEP/CBD/WG-ABS/8/2, 15 July 2009. Crespi, R.S. (1988) Patents: A Basic Guide to Patenting in Biotechnology, Cambridge, UK: Cambridge University Press. EC (2008) The Economics of Ecosystems and Biodiversity, European Communities. Wesseling, Germany: Welzel and Hardt. ENB (2010) Monday, 1 November, Vol. 9 No. 544, page 6. Available online at http://www. iisd.ca/biodiv/cop10/. Galaz, V., Olsson, P., Hahn, T., Folke, C. and Svedin, U. (2008) ‘The Problem of Fit among Biophysical Systems, Environmental and Resource Regimes, and Broader Governance Systems: Insights and Emerging Challenges’, in O.R. Young, L.A. King and H. Schroeder (eds.) Institutions and Environmental Change: Principal Findings, Applications and Research Frontiers, Cambridge, MA: MIT Press, 147–186. Gehl Sampath, P. (2005) Regulating Bioprospecting: Institutions for Drug Research, Access and Benefit-sharing, New York: United Nations University. Gleckman, H. (1995) ‘Transnational Corporations’ Strategic Responses to Sustainable Development’, in H. O. Bergesen, G. Parmann, and Ø. B. Thommessen (eds.) Green Globe Yearbook, Oxford, UK: The Fridtjof Nansen Institute and Oxford University Press, 93–106. Grajal, A. (1999) ‘Biodiversity and the Nation State: Regulating Access to Genetic Resources Limits Biodiversity Research in Developing Countries’, Conservation Biology 13(1): 6–10. Heywood, V.H. (ed.) (1995) Global Biodiversity Assessment, UNEP, Cambridge, UK: Cambridge University Press. Kamau, E.C. (2009) ‘Disclosure Requirements—A Critical Appraisal’, in E.C. Kamau and G. Winter (eds.) Genetic Resources, Traditional Knowledge and the Law, London: Earthscan, 399–418. Koester, V. (1997) ‘The Biodiversity Convention Negotiation Process and Some Comments on the Outcome’, Environmental Policy and Law 27(3): 175–92. Laird, S., and Wynberg, R. (2008) Access and Benefit Sharing in Practice: Trends in Partnerships across Sectors, Convention on Biological Diversity Technical Series 38. Available at http://www.cbd.int/doc/publications/cbd-ts-38-en.pdf. Le Prestre, P.G. (ed.) (2002) Governing Global Biodiversity: The Evolution and Implementation of the Convention on Biological Diversity, Aldershot, UK: Ashgate. McGraw, D.M (2001) ‘The Story of the Biodiversity Convention: Origins, Characteristics and Implications for Implementation’, in Le Prestre, P.G. (ed.) (2002) Governing Global Biodiversity: The Evolution and Implementation of the Convention on Biological Diversity, Aldershot, UK: Ashgate, 7–38. Mgbeoji, I. (2006) Global Biopiracy: Patents, Plants and Indigenous Knowledge, Vancouver, BC: UBC Press. Millennium Ecosystem Assessment (2005a) Living beyond Our Means: Natural Assets and Human Well-being, Washington, DC: Island Press. Millennium Ecosystem Assessment (2005b) Ecosystems and Human Well-Being. Biodiversity Synthesis, Washington, DC: Island Press. Morgera, E. and Tsioumani, E. (2011). ‘Yesterday, Today and Tomorrow: Looking Afresh at the Convention on Biological Diversity’, Yearbook of International Environmental Law 22 (2011): 1–38. Nijar, G. S. (2011) The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: An Analysis, CEBLAW Brief, Kuala Lumpur, Malaysia: Centre of Excellence for Biodiversity Law (CEBLAW).

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Background and analytical framework 17 Oberthür, S. and Gehring, T. (eds.) (2006) Institutional Interaction in Global Environmental Governance. Synergy and Conflict Among International and EU Policies, Cambridge, MA: MIT Press. Oberthür, S. and Stokke, O.S. (eds.) (2011) Managing Institutional Complexity: Regime Interplay and Global Environmental Change, Cambridge, MA: MIT Press. Pistorius, R., and van Wijk, J. (1999) The Exploitation of Plant Genetic Information, Amsterdam: Amsterdam University Press. Raustiala, K. and Victor, D.G. (2004) ‘The Regime Complex for Plant Genetic Resources’, International Organization 58(2): 277–309. Robinson, D. (2010) Confronting Biopiracy: Challenges, Cases and International Debates, London: Earthscan. Rosendal, G.K. (2000) The Convention on Biological Diversity and Developing Countries, Dordrecht, the Netherlands: Kluwer Academic Publishers. Rosendal, G.K. (2006) ‘Balancing Access & Benefit-Sharing and Legal Protection of Innovations from Bioprospecting: Impacts on Conservation of Biodiversity’, Journal of Environment and Development. Special issue on biodiversity 15(4): 428–447. Swanson, T. (1995) Intellectual Property Rights and Biodiversity Conservation, Cambridge, UK: Cambridge University Press. ten Kate, K., and Laird, S.A. (1999) The Commercial Use of Biodiversity: Access to Genetic Resources and Benefit-sharing, London: Earthscan. Tolba, K.M. (1998) Global Environmental Diplomacy. Negotiating Environmental Agreements for the World, 1973–1992, Cambridge, MA: MIT Press. Tvedt, M.W. (2006) ‘Elements for Legislation in User Countries to Meet the Fair and Equitable Benefit-Sharing Commitment’, Journal of World Intellectual Property 9(2): 189–212. Tvedt, M.W. and Young, T.R. (2007) Beyond Access: Exploring Implementation of the Fair and Equitable Sharing Commitment in the CBD, Gland, Switzerland: IUCN. UNDP (2005) Human Development Report, New York: United Nations Development Programme. von Lewinski, S. (2008) Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge, and Folklore, Alphen aan den Rijn, the Netherlands: Kluwer Law Intl. WCED (World Commission for Environment and Development) (1987) Our Common Future, Oxford, UK: Oxford University Press. Wilson, E.O. (ed.) (1988) Biodiversity, Washington DC: National Academy Press. WIPO (2005) Intellectual Property and Traditional Knowledge, Booklet No. 2, WIPO Publication No. 920(E), Geneva: World Intellectual Property Organization. Young, O.R. (2002) The Institutional Dimensions of Environmental Change: Fit, Interplay, and Scale, Cambridge, MA: MIT Press. Young, O.R. (2010) Institutional Dynamics. Emergent Patterns in International Environmental Governance, Cambridge, MA: MIT Press.

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The term ‘genetic resources’ Flexible and dynamic while providing legal certainty?1

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Morten Walløe Tvedt and Peter Johan Schei Background, context and purpose The term ‘genetic resources’ is at the very core of access and benefit sharing (ABS) because it defines the object that is sought to be regulated. By defining the object of the regulations, the term ‘genetic resources’ establishes the coverage of ABS as a legal system. Understanding what is meant by the legal definition of ‘genetic resources’ is therefore a matter at the heart of ABS. One challenge is that the definition needs to meet two somewhat contradictory virtues. A definition needs to be sufficiently dynamic and flexible to cope with rapid developments in biotechnology and knowledge on genes and genetics (see ‘Changes in knowledge and technology’ below). At the same time, it must be sufficiently precise that it is possible to determine with a sufficient degree of legal certainty whether one is operating inside or outside the system. This chapter explores the context in which the term operates. It first takes a closer look at the wording as it appears in the Convention on Biological Diversity (CBD) to identify its flexibility and more precise legal elements. Since the term is one of international law, we subsequently look at how it has been used in other international forums to furnish some additional considerations. In discussions regarding international and national policy and law, the term ‘genetic resources’ is used as if it is a uniformly and well-defined one (Andersen et al. 2010). Against this backdrop, we then discuss how the definition in the CBD relates to new technological developments. There is no binding state practice (opinion juris) or consistent international practice that could qualify as international customary law and freeze the meaning of the term ‘genetic resources’. When tested on new and changing knowledge and cutting-edge technological developments, the definition of ‘genetic resources’ still seems to be adequate. ABS was brought into the CBD as an innovative mechanism to balance access to genetic resources (GR) with provision of funds and technology to the providing party. Such funds were also intended to promote conservation and sustainable use of biological diversity; indeed, the sharing of benefits was made an objective of the Convention itself. Prior to the CBD, ‘genetic resources’ was neither a commonly used legal concept nor did it represent clearly defined objects of ownership or property rights, save from a rather specific use in the plant sector, where

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The term ‘genetic resources’ 19 ‘plant genetic resources’ was often used synonymously with accessions of seeds for plant breeding (Tvedt and Young 2007). This raises certain challenges insofar as a core concept is a relatively new one in international law. In the negotiations leading to the Nagoya Protocol, suggestions were on the table to elaborate the existing understanding of GR in greater detail; there was a lack of political consensus on such a definition, and it was not therefore included in the final Protocol (CBD 2008). Relevant jurisprudence and theoretical discussions will therefore, in accordance with the Vienna Convention on the Law of Treaties,2 be of interpretative value. In parallel, there are huge expectations in the business community regarding what ‘bioeconomy’ could achieve. According to the European Association for BioIndustries (EuropaBio) and the European Federation of Biotechnology Section on Applied Biocatalysis (ESAB), which represent European biotechnology industries: ‘Biotechnology will drive expansion of the global economy, increasing wealth while reducing Humankind’s environmental footprint’.3 The Organization for Economic Cooperation and Development (OECD) expresses similar expectations: The biosciences add value to a host of products and services, producing what some have labelled the ‘bioeconomy’. The bioeconomy project assessed the pervasiveness of biotechnological applications, prospects for future development, potential impacts on the economy and society and potential policy solutions to promote and diffuse these innovations in a way that is consistent with broader policy goals.4 These optimistic views regarding business potential can be contrasted with business representatives to the CBD often stressing that the value of GR is low, which then again is being used as an argument against an ABS system (ICC 2009). The positive views on the potential of value creation by the bioeconomy could also indicate that ABS has the potential to become an important and valuable innovative financing mechanism for the conservation of biodiversity and its sustainable use.

Interpreting the term ‘genetic resources’ in the CBD The CBD Article 2 defines ‘genetic resources’ as follows: ‘Genetic resources’ means genetic material of actual or potential value. ‘Genetic material’ means any material of plant, animal, microbial or other origin containing functional units of heredity.

A first observation is that ‘genetic material’ may have any biological origin, ‘plant, animal, microbial or other’. As has been noted elsewhere, ‘genetic resources are a subset of biological resources’ (CBD 2008: 6). The definition clearly covers biological origins from mircoorganisms to the highest forms of life. The words ‘any material’ prompt one to ask whether there is a need for the material to stay

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in a biological form or whether the information in the genes is covered after it has been transferred into another form. The wording ‘other origin’ might also cover material with biological origin although being processed by synthetic processes. Two concepts need to be discussed in greater detail: first, biological functionality as genetic material and, second, the value of the functional units of heredity in the organism.

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Functional units of heredity The qualifying element in the definition is the specification that ‘genetic material’ is any material containing ‘functional units of heredity’. The more specific meaning of this expression is not further specified in the CBD. ‘Functional’ is used here in a biological sense. Legal language must be interpreted according to the principles of international law and in accordance with the biological concepts described. ‘Functional units of heredity’ relates basically to genes, which, when the CBD was drafted (1992), were generally considered the only functional units of the DNA in organisms. The part of the DNA whose function was not well understood was not considered to be a functional unit of heredity. There are no indications in the definition linking an interpretation to the state of knowledge in 1992. This builds flexibility into the definition, indicating a somewhat dynamic concept. It is difficult to capture in an enforceable legal term the evolving knowledge of GR and their role in the development of organisms in a manner offering a clear and applicable criterion for whether a certain transaction or part of an organism is covered by the scope of ABS (see below). The term ‘functional’ qualifies the object. It has several connotations in the English language, two of which are relevant here: ‘relating to, or having a function’ and ‘working or operating’ (Compact Oxford English). To have a function is thus a broad concept. This broadness is also reflected in the words ‘working or operating’, where the emphasis is on any way of having a function or operating. The scientific and technological understanding of what is working or operating as functional units of heredity changes with advances in science, thus linking the definition to technological progress. ‘Functional’ could be understood as referring to different dimensions or levels, such as having an internal function inside the organism. Any molecular construct inside the cells or organisms could be functioning at a microorganic level. Functionality could also be understood as extending to functionality outside the organism from which it originated. ‘Functional’ could refer both to the genetic structure per se and to the information encapsulated in the DNA sequence (nucleotide) that can be screened and transferred into a digital form and become functional in a new, digital form. Tvedt and Young (2007) discussed four potential ways of understanding genetic material: first, GR as biological resources; second, GR as microphysical material; third, GR understood as information. The fourth and seemingly most viable in this context is the following:

The term ‘genetic resources’ 21

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The use of physical terms such as “material” suggests that “genetic resources” encompasses both (micro) physical and intangible/informational elements— the information and its biological source. This option suggests that “genetic resources” should include all of the following: (i) the micro/physical component (extracting, multiplying and studying genetic or biochemical material); (ii) the information (synthesis or other development, or processes to do so); and (iii) intangible and tangible being used together (i.e., where a molecule/ sequence cannot be synthesized or multiplied, but must be continuously collected from wild sources) (Tvedt and Young 2007: 65). Understanding the functionality of units of heredity so as to include both the microphysical and the informational element covers a multiplicity of uses. If both the genetic material and the information it codes for are included in the definition of genetic resources as a resource, the scope of the CBD would reflect the economic value of biodiversity to a larger extent. The form in which the information currently occurs seems less decisive for the definition. Transfer of genetic information into a digital electronic form on a computer would not change its genetic character. The medium into which the hereditary information is later transferred is not decisive for whether it is being included in the definition. The decisive criterion is the biological origin rather than the biological form. Vogel and colleagues go even further in emphasising ‘genetic resources as natural information’ to be more important than the microbiological material (Kamau et al. 2010; Vogel et al. 2011: 55). There is a consequential argument that supports this interpretation. If genetic information were not covered by the definition, development would quickly outdate the rules of the CBD (see ‘Changes in knowledge and technology’ below). If the ABS system is to cope with technological progress, GR need to be viewed as naturally developed information coded in the language of DNA. ‘Functional’ includes a dynamic element. Advancement of knowledge and technology changes the manners in which the elements of biological material are being used. The meaning of biological functionality will therefore necessarily follow these developments. ‘Genetic material’ can be understood as material in a broad sense originating from any biological source in which units of heredity are operating or have a function either in the organism or more widely, including reference to genetic material as information. Genetic material of actual or potential value ‘Genetic resources’ are defined as genetic material (with functional units of heredity) of ‘actual or potential value’. This definition seeks to capture the value—actual and potential—of the genetic material. ABS rests on an assumed separation between sales of biological resources for bulk purposes and uses of the inherent genetic material. The definition of GR is formulated so as to make a distinction between GR and biological resources. This fine line in the definition is connected

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to the types of values that are realized. Situations in which biological bulk values are captured clearly lie outside the definition. Capturing the value of the genetic material is covered by the definition. This has proven complicated in practice. The value of a certain gene or part of the DNA molecule is difficult to assess or specify before it has undergone research. The informational dimensions of GR are becoming increasingly valuable as knowledge expands and becomes more widely accessible in databases of information on the functions of the hereditary material (see ‘Changes in knowledge and technology’ below). The technology for capturing the economic value of genetic material is becoming more advanced and sophisticated and increasingly based on the electronic or digital use of DNA. The wording of the definition seeks to resolve this uncertainty by mentioning both actual and potential value. The ordinary understanding of ‘value’ is not restricted solely to its economic aspects. Value is commonly understood as being ‘social, economic, cultural and spiritual in nature’ (CBD 2009: 28). In this quotation, the emphasis is also on the social, cultural and spiritual aspects of biological diversity in addition to its economic value. But because these values are harder to measure, their importance is likely to be downplayed when it comes to understanding ‘genetic resources’. The noneconomic value of genetic material is reflected in the manner in which benefit sharing can take place. Both Appendix II to the Bonn Guidelines adopted under the CBD in 2002 (see Wallbott et al., this volume) and the Annex to the Nagoya Protocol list ways of sharing benefits that include research collaboration and technology transfer. Creation of such nonmonetary benefits could be seen as a manifestation of the values of genetic material. Any type of value might be relevant when deciding whether something should be regarded as ‘genetic resources’ or not. The way ‘value’ is conceived here does little to limit the scope of the definition. The definition uses both ‘actual’ and ‘potential’ to describe the value of GR. Actual value might be more or less evident or clear. Actual value is not static inasmuch as the material might have one value when used in a particular way and a different value when used in another. The reference to ‘potential’ is broader and extends the dynamic aspect of the definition of GR. The value of the material at the time of access is potential in that one cannot know the specific value before it has been realized. This could be read as including a dynamic reference to the current scientific situation: Actual value would then concern the value of genetic material in combination with known and developed technologies at the time the genetic material is accessed. Potential value could then be understood to encompass possible future techniques that could release the potential value of the functional units of heredity or new areas of use discovered at a later stage. The material might prove to be valuable for something other than the original purpose. In cases without evident current value, genetic material still qualifies as a GR. The use of the term ‘potential value’ encompasses ways of realising the value of the functional units of heredity that lie in the future. ‘Potential value’ contains a further reference to scientific progress, as advancements in knowledge and technology may allow new values to be harvested from the material.

The term ‘genetic resources’ 23 Since the state of science of functionality in biology and thus potential value changes, the wording of the legally binding definition suggests dynamism in relation to evolving science and technology. One can say that the definition will cover all biological material if its use captures either the actual or the potential value of the hereditary elements.

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What was meant to be captured by ‘genetic resources’ historically? In international law, the ‘the preparatory work of the treaty and the circumstances of its conclusion’ can be used as supplementary means of interpretation (Vienna Convention on the Law of Treaties, Art. 32). When the CBD was negotiated from 1989 to 1992, there was a general feeling of optimism related to the possible benefits arising from the use of GR in modern biotechnology, particularly through recombinant DNA techniques. Early field trials of genetically altered bacteria took place in the 1980s, and the first successful field trials of genetically engineered cotton were carried out in the 1990s. Discussions of the objectives of the Convention had a clear focus on these new technologies and their expected benefits. The definition of GR captured these new prospects. The sense of optimism led to the inclusion of the term ‘genetic resources’ in the third objective of the CBD regarding the fair and equitable benefit sharing, as well as in Article 15 of the CBD. Although clearly understood as a subsection of or included in ‘biological resources’, how the concept of ‘genetic resources’ was to be interpreted was left fairly open. There was general agreement to exclude from this objective utilization of biological material as commodities or ‘in bulk’, where the genetic material or information was not utilized per se. Actual or planned utilization of the GR contained in any accessed biological material was, however, an essential basis for realising benefit sharing. The definitions of ‘genetic resources’ and ‘genetic material’ rest on the understanding of the concept of ‘functional units of heredity’. That concept is not, however, defined further in the Convention. It was generally considered to be roughly synonymous with the current scientific understanding of genes. The word ‘functional’ was basically used to distinguish genes/genetic material from the larger part of DNA in most higher-order organisms (plants, animals, fungi) that did not code for any protein. One way in which genes operate is when the molecular structure in the DNA makes a blueprint. This blueprint is called a protein and gives instructions to or controls itself different processes in the organism as a whole. ‘Functional’ meant at that time what was known about which parts of a gene were useful as opposed to those with no known function. What was known as ‘junk DNA’ did not apparently code for any protein or have any other function. The politically disputed and legally uncertain question is what counts as a GR and is thereby within the scope of the relevant rights and obligations. This question arises particularly in the case of more indirect ways of realising the value of genetic material. Uncertainty exists with respect to objects that are more remote from the functional units of heredity, such as enzymes extracted from biological

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material or from biochemicals. It is more doubtful whether such objects are covered by the definition. These questions have surfaced again during discussions on the CBD in relation to whether derivatives are covered by the scope of ABS. The subject of debate is the distance (derivation) from the functional units of heredity at which the obligation to share benefits remains in force (or loses its force). Drawing a fine line here is more of a political than a purely legal exercise. Countries have considerable discretion to leave an elaboration of the details to later interpretation or to adopt specific definitions in an attempt to resolve the issue. In practice (that is, in a nonlegislation context), demarcation will be made either through a private law agreement regulating a bioprospecting accord or a court deciding rights to GR in a dispute over benefit sharing. If a case comes before a court, several conflicting interests would be relevant for the interpretation. On the one hand, GR users are claimed to have a need for an end point for the benefitsharing obligations. On the other hand, the benefit-sharing objective of CBD was introduced to capture a fair part of benefits generated from the use of biodiversity and give it back to the countries providing those resources, which is not an objective with a definite end point. This objective could therefore be described in terms of capturing the value of modern uses, but the point has not really been explicitly clarified, although there was a general understanding of the benefit-sharing mechanism to include benefits from a broader set of modern biotechnological uses/products. The manner in which genetic material is used will evolve with time. This is a strong argument to ensure a dynamic definition of the basic scope. The argument against flexibility is that it could reduce legal certainty. These definitional challenges could be avoided by putting the emphasis on the trigger point ‘utilization of genetic resources’. This definition is probably not going to be static in a political sense because discussions on the matter will no doubt continue in relevant forums. The introduction of the new term ‘traditional knowledge related to genetic resources’ in the Nagoya Protocol One type of knowledge that is more explicitly dealt with in the Nagoya Protocol is traditional knowledge (TK) related to genetic resources. There is no explicit reference to ‘traditional knowledge’ as an object for ABS in CBD Article 15. This changed with the Nagoya Protocol. Article 3 in the Protocol refers explicitly to TK in its scope: ‘This Protocol shall also apply to traditional knowledge associated with genetic resources within the scope of the Convention and to the benefits arising from the utilization of such knowledge.’ With this article (and the other places in the Protocol dealing with this topic), a new legal concept has been taken into treaty law. No treaty has referred to the concept of ‘traditional knowledge associated with genetic resources’ prior to the Nagoya Protocol. Bavikatte and Robinson (2011) have analysed the gains of the indigenous and local communities in the negotiations leading to the Nagoya Protocol. They emphasize the substantial difference between the scarce legal content of CBD Article 8( j) and the content of the rights to TK in the Nagoya Protocol. TK related to GR plays an important

The term ‘genetic resources’ 25 role in the search for new genes and the enzymes coded for in these genes. This newly developed concept of law has the potential to enable indigenous and local communities to come together and set the rules for access to GR and for utilising related TK (Abrell et al. 2009).

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State practice and meaning given to the concept of ‘genetic resources’ in other international forums The use of the concept of ‘genetic resources’ has spread since its inclusion in the CBD, and now it features in numerous national laws, international treaties,5 discussions6 and documents. In international law, international customary law is recognized as a source of law.7 Thus, the manner in which countries have defined ‘genetic resources’ in their national ABS policies and laws could give an indication of what could be an agreed-upon understanding of the concept. Looking at national laws, however, there is also no uniform understanding of ‘genetic resources’ that could serve as a concept in international customary law. The main lesson from our review of recent examples of the use of ‘genetic resources’ as it is conceived in various international forums and agreements is that it has no definite, consistent meaning. We note numerous meaning, such as accessions for breeding, DNA samples, genetic information, digitalized information and a generalized concept of biological diversity at the gene level. Different definitions will likely affect relations between different regimes that (seek to) regulate governance of GR. It would also likely affect the scope of ABS under the CBD and the Nagoya Protocol. For example, there is perceived uncertainty about which ‘plant genetic resources’ fall under the scope of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR). The regulatory scope of the ABS regime of the Nagoya Protocol could be limited by other international agreements (e.g. the Commission on Genetic Resources for Food and Agriculture of the FAO seeks to regulate inter alia microorganisms and the WHO human pathogens), not least if they apply a less flexible and narrower definition. A narrower definition could in consequence narrow the general scope of ‘genetic resources’. The task here is not to analyse these effects but to point out the possible implications of many different definitions. In several international contexts outside the CBD, the term has also been used with various meanings. In one specific case, ‘genetic resources’ is often used in discussions of ‘plant genetic resources for food and agriculture’. The International Undertaking on Plant Genetic Resources (1983) in its Article 2.1(a) defined ‘plant genetic resources’ as the reproductive or vegetative propagating material of the following categories of plants: i. cultivated varieties (cultivars) in current use and newly developed varieties; ii. obsolete cultivars; iii. primitive cultivars (land races); iv. wild and weed species, near relatives of cultivated varieties; v. special genetic stocks (including elite and current breeders’ line and mutants).8 The core meaning of the term is ‘reproductive or vegetative propagating material’. This is basically a reference to seeds used as breeding material to achieve new plant varieties by conventional breeding methods. The ITPGR definition builds partly

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on the definition in the CBD but is more specific and considerably narrower in scope. For the purpose of the ITPGR, the term ‘plant genetic resources’ is defined in Article 2 as follows:

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‘Plant genetic resources for food and agriculture’ means any genetic material of plant origin of actual or potential value for food and agriculture. ‘Genetic material’ means any material of plant origin, including reproductive and vegetative propagating material, containing functional units of heredity.

By applying the term ‘reproductive and vegetative propagating material’, this definition of genetic material diverges from the general definition of the CBD but shares core features with the understanding adopted in the aforementioned International Undertaking. The FAO Commission on Genetic Resources for Food and Agriculture (CGRFA) discussed ABS and thus also issues related to GR at its twelfth and thirteenth sessions in October 2009 and July 2011, respectively. The background studies to the twelfth meeting used ‘genetic resources’ with several different meanings: In the document on standards for gene banks, the term is mostly used in the sense of accessions to seeds for breeding purposes (FAO 2009: para. 28). This same impression can be found regarding ‘on-farm management of plant genetic resources for food and agriculture, in situ conservation of crop wild relatives and wild plants for food, particularly in developing countries’ (FAO 2009: para. 32). Where ‘animal genetic resources’ are dealt with, it tends to refer to genetic diversity between and within animal breeds (FAO 2009: paras. 35–43). The reports on invertebrates and microorganisms do not use the term, raising doubts as to whether the CGRFA on this topic leaves ‘genetic resources’ as a concept and rather discusses the organisms as biological resources. Regarding aquaculture, aquatic GR are mentioned in general terms, making it difficult to extract a particular meaning (FAO 2009: paras. 66–69). It is first in the report on biotechnology for food and agriculture that the emphasis turns towards new technologies in the sector. The Commission requested FAO to prepare a scoping paper describing the range of biotechnologies being applied to the conservation and utilization of GR for food and agriculture (FAO 2009: para. 72). Here the concept of ‘genetic resources’ is used in connection with utilization and conservation. We see that ‘genetic resources’ is used in different contexts, apparently with different content, in this document from the CGRFA. From these studies, we conclude that no precise and uniform understanding of ‘genetic resources’ is applied in the CGRFA. In the World Intellectual Property Organization (WIPO) Intergovernmental Commission on Genetic Resources, Traditional Knowledge and Folklore, references are made to ‘genetic resources’. Here the concept of ‘genetic resources’ diverges from that used in the forums and texts from FAO. The Intergovernmental Commission discusses defensive protection systems for GR. This gives the impression that the elements of innovation and information are broader than those in the FAO but do not correspond to those of the CBD. It is, however, not easy to

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The term ‘genetic resources’ 27 extract from these discussions a single or consistent meaning of the term ‘genetic resources’. The UN General Assembly (UNGA) established an Ad Hoc Open-ended Informal Working Group to report on issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction under the Law of the Sea (resolutions 59/24, 63/111 and 64/71). This working group uses the term ‘genetic diversity’, but it is also linked to the value of the material. The discussions also target the ‘scientific . . . understanding, potential use and application’ (UNGA 2011, para. 62), indicating a reference to marine GR as a basis for scientific research. Here, ‘genetic resources’ is used in terms of genetic information in the organisms, but again no coherent understanding can be extracted. The Antarctic Treaty System includes a set of agreements regulating various aspects of the area south of 60° S latitude. The discussions here mainly concern the activity of bioprospecting in the Antarctic; the term ‘genetic resources’ has not been included within the scope of these discussions (Tvedt 2010). International organizations dealing with patent law and its harmonization use the term ‘genetic resources’ mainly in the context of discussions on disclosure of the origin of the material used in an invention based on biological material (Hoare and Tarasofsky 2007; Tvedt 2006; see also Oberthür and Pożarowska, this volume). These discussions seek to establish a link that allows for the tracking of the GR into patented inventions based on such material. This topic is on the agenda of the Council of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as part of the World Trade Organization (WTO),9 the Patent Cooperation Treaty,10 and of the Standing Committee on the Law of Patents under WIPO. Patent law as such does not use the term ‘genetic resources’. This finds expression in the EU Directive on biotechnological inventions that applies the terms ‘gene’ and ‘genetic information’, ‘genetic identity’ and ‘genetic engineering’, but without reference to ‘genetic resources’.11 This underscores the need to ensure the inclusion of genetic information in the corresponding term in the CBD in order to maintain the balance between the legal systems of ABS and intellectual property rights (IPR): As ‘genetic information’ is an important part of the value captured by IPR patent systems, it needs to be captured by the ABS system as well. From this brief survey, no general conclusions can be drawn regarding the specific understanding of ‘genetic resources’ outside the CBD. The uses we have examined do not amount to evidence of state practice that would limit the flexibility one assigns to the GR definition under the CBD. This plurality of uses in other international organizations is a strong indication of the multidimensionality of the concept of ‘genetic resources’.

Changes in knowledge and technology Much has happened regarding knowledge and technological development since the entry into force of the CBD. The understanding of DNA, genes and gene regulation and expression is constantly evolving (Shapiro 2007). Today we know far

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more about genes, gene expression and gene functioning than was the case in 1992. It would therefore be interesting to see whether the term ‘genetic resources’ manages to capture technological developments post–1992. Technological developments and new discoveries and uses of functional units of heredity have been reflected in proposals in the negotiations. Different actors have promoted their interests in a broader- or narrower-scoped ABS. This is important for understanding the conflict over core issues in the negotiations leading to the Nagoya Protocol, such as derivatives and pathogens (see Wallbott et al. and Tvedt, this volume). Technological developments give rise to new ways of using GR, with potentially increased value becoming an object of benefit sharing. It was generally believed that a single gene coded for a particular and welldefined protein. There is an emerging consensus among scientists that the central dogma on unidirectional information flow, from DNA to mRNA to protein (‘one gene—one protein’ thesis), may not be totally valid (Shapiro 2009: 14–15). Through so-called ‘differential’ or ‘alternative splicing’ and other forms of mRNA editing after transcription to RNA from DNA, thousands of different proteins may come from a single gene. There are a lot more feedback, modification and natural engineering mechanisms than earlier anticipated. The manner in which a gene is expressed and works in an organism depends on several regulatory factors outside the gene itself, even on signals from outside the cell. This indicates that ‘functional units of heredity’ must be interpreted beyond the gene itself. Today it is a fairly straightforward matter to read and copy long sequences of DNA. There has been a drive towards mapping the complete genome of organisms, or full genome sequencing, as it is also known. Increased knowledge has led to successful mapping of the complete genomes of several species, including Homo sapiens. This in turn improves our understanding of how genes are programmed to function and what regulates gene expression in the various cells, although our knowledge here is still fragmentary. Some scientists even hold that it is the full genome that should be seen as the ultimate ‘functional unit of heredity’ given the present state of our knowledge. The projects mapping the full genome are closely related to the use of a specific genetic material. The object of this exercise is to understand how the units of heredity function and is thereby easily subsumed under the CBD definition. The area of genomics is currently producing new knowledge and a wider understanding of all the genes in a cell or tissue and how DNA, mRNA or even proteins function in the cell under different conditions. Genomics can provide a better understanding of the totality of how a gene may have different functions under varying conditions and of how different conditions interact with the DNA, mRNA and proteins. The starting point is the DNA, RNA or even a protein, but the emphasis is on the knowledge-related and informational dimensions of the resource. The focus of these activities is to better understand the functions of genetic material and develop this information to become useful for research and development. Proteomics can be explained as the large-scale study of proteins, in particular their structures and functions. Where genomics looks at the DNA and RNA, proteomics focuses on the protein that is coded for in DNA and RNA. The goal is

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The term ‘genetic resources’ 29 a ‘comprehensive, quantitative description of protein expression and its changes under the influence of biological perturbations such as disease or drug treatment’.12 This is an example of how new knowledge can open new units of heredity as functional in organisms, supporting a dynamic understanding of the concept of ‘genetic resources’. The proteins are expressed by the genes and are thus not objects of heredity themselves but rather a necessary result thereof. This could be taken as an argument that proteomics is a derivative, as has been discussed in the CBD, rather than the resource itself. Synthetic biology is a rapidly growing field of research and molecular engineering. The name was first used in the early 1970s, but it was not until this century that the term gained widespread use. Synthetic biology indicates that it has become possible to create or recreate chemical systems resembling or imitating life (Benner and Sismour 2005: 533–543). If or when knowledge and technology make it possible to recreate biology in this way securely and precisely, the use of the microphysical genetic material might be relegated to a more remote position, and the informational dimension of ‘genetic resources’ will doubtlessly become more important and comprehensive. However, as synthetic biology copies biology in a synthetic way, there has been some use of genetic material in the process, that is, functional units of heredity. In synthetic biology, the link back to the biological material in which the genetic information was found becomes more remote. ‘Bioinformatics’ is used in several ways. One meaning refers to the application of computer science and information technology to the field of biology, molecular biology in particular. It has proven a crucial tool in genomics and for the sequencing of the DNA of various organisms. By applying information technology, mankind can expand and develop the understanding of biological processes. In practice, bioinformatics is a way of realising the value of the information in the genetic material as one dimension of GR disconnected from the biological sources in which it was originally found. To the extent that these new techniques do in fact realize the value of functional units of heredity, they are covered by the definition. Changes in one’s understanding of what parts of the genome are functional units of heredity will be covered by the definition, as it does not include any reference to the technological knowledge in 1992, though it does include an element of technological neutrality. This shows that the definition in CBD is robust enough to grasp the ‘genetic resources’ in a changing technological context.

Final observations This chapter has discussed the concept of ‘genetic resources’ in the CBD and has shown that the manner in which the definition is constructed has enabled it to cope with progress in science and technology. Given the multitude of conceptions of genetic material, one firm conclusion can be drawn: No customary law can be said to have narrowed down the flexibility embedded in the wording. That notwithstanding, ABS has not succeeded as an innovative benefit-sharing mechanism from business back to providing countries for genetic resources. ABS

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has not provided the CBD with the necessary economic alternative value of biological diversity for its GR to become an incentive for biodiversity conservation and sustainable use. Knowledge about and techniques using genetic material are evolving rapidly. If the concept of genetic resources is understood narrowly, that is, related to the state of knowledge in 1992, the ABS system may not be able to capture the future potential value of genetic material, not least when it is used in or as a basis for synthetic biology or other new bioeconomic technologies. In the implementation of ABS as a part of the CBD, there is a need to strike a balance between maintaining a broad and dynamic understanding of genetic resources while at the same time seeking to establish legal certainty for users and providers so both can have predictability regarding their respective rights and obligations. There is, however, a dilemma and a contradiction between, on the one hand, leaving a definition dynamic and flexible while, on the other, understanding it in a manner that creates legal certainty and thus is enforceable. If the definition of genetic resources is made very narrow, it will make it impossible to transfer the whole idea of ABS into a functional system providing alternative values to biological diversity. For the sake of comparison, the patent system has married the two virtues of legal certainty and flexibility in the object to those rights: The object of a patent right is clearly defined as the ‘claimed invention’; this provides a clear definition. The flexibility is built into this system by each invention being individually determined by the inventor in the ‘patent claims’, which are the elements of the invention to which the inventor claims an exclusive right. These claims can be determined with a high degree of legal certainty with a clear system of interpretation and enforcement. Learning from this, we would suggest leaving the definition of genetic resources as dynamic as it is in the CBD, capturing the flexibility and changes in the manner of capturing the value of the functional units of heredity. The manner in which legal certainty for the user of GR could be defined and created is by specifying the acts of utilization of genetic resources. These ideas are further developed elsewhere (Tvedt, this volume).

Notes 1 The research presented in this chapter is partly a contribution from the Fridtjof Nansen Institute (FNI), Norway, as part of a research project on Access and Benefit Sharing carried out in cooperation with the multidonor ABS Capacity Development Initiative and by the research project Exploring Legal Conditions and Framework for Marine-based Bioprospecting and Innovation funded by the Norwegian Research Council. A first paper on the concept ‘genetic resources’ was published in 2010 (see Schei and Tvedt 2010). The authors would like to thank Kristin Rosendal and Ole Kristian Fauchald (both of FNI) for useful comments on the manuscript; final responsibility rests, however, with the authors. 2 Vienna Convention on the Law of Treaties, United Nations, 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980. 3 See http://www.bio-economy.net/bioeconomy/about_bioeconomy/index_aboutbioecon omy.html (accessed 30 October 2012).

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The term ‘genetic resources’ 31 4 See http://www.oecd.org/futures/long-termtechnologicalsocietalchallenges/thebioecon omyto2030designingapolicyagenda.htm (accessed 30 October 2012). 5 Such as the International Treaty on Plant Genetic Resources for Food and Agriculture, Food and Agriculture Organization of the United Nations, 3 November 2001, 2400 UNTS, entered into force 29 June 2004. 6 See, for example, the WIPO Intergovernmental Commission on Genetic Resources, Traditional Knowledge and Folklore; the discussions in the WIPO Standing Committee on the Law of Patents; in the Commission on Genetic Resources for Food and Agriculture in the FAO; and in the TRIPS Council of the WTO. 7 Statute of the International Court of Justice, United Nations, 26 June 1945, Art. 38. 1 b. 8 Resolution 8/83 of the Twenty-second Session of the FAO Conference, Rome, 5 to 23 November 1983. 9 TRIPS became international law together with the entry into force of the WTO in 1995. 10 Patent Cooperation Treaty, WIPO, 19 June 1970, entered into force 24 January 1978, as amended on 28 September 1979, 3 February 1984 and 3 October 2001; by July 2012 it had 146 country members. 11 Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, 6 July 1998, [1998] OJ, L 213/13, entered into force 30 July 1998. 12 The US National Library of Medicine, http://www.ncbi.nlm.nih.gov/pubmed/9740045 (accessed 20 February 2013).

Bibliography Abrell, E., Bavikatte, K., Jonas, H., Köhler-Rollefson, I., Lassen, B., Martin, G., Rukundo, O., von Braun, J. and Wood, P. (2009) Bio-cultural Community Protocols. A Community Approach to Ensuring the Integrity of Environmental Law and Policy, Nairobi, Kenya: United Nations Environment Program and Natural Justice. Andersen, R., Tvedt, M.W., Fauchald, O.K., Winge, T., Rosendal, K. and Schei, P.J. (2010) International Agreements and Processes Affecting an International Regime on Access and Benefit Sharing under the Convention on Biological Diversity. Implications for its Scope and Possibilities of a Sectoral Approach, FNI Report 3/2010, Lysaker, Norway: Fridtjof Nansen Institute. Bavikatte, K. and Robinson, D.F. (2011) ‘Towards a People’s History of the Law: Biocultural Jurisprudence and the Nagoya Protocol on Access and Benefit Sharing’, Law, Environment and Development (LEAD) Journal 7(1): 35–51. Benner, S.A. and Sismour, A.M. (2005) ‘Synthetic Biology’, Nature Reviews Genetics 6: 533–543. CBD (2008) Report of the Meeting of the Group of Legal and Technical Experts on Concepts, Terms, Working Definitions and Sectoral Approaches, UN doc. UNEP/CBD/WGABS/7/2, 12 December 2008. CBD (2009) The Role of Commons/Open Source Licences in the International Regime on Access to Genetic Resources and Benefit-Sharing, UN doc. UNEP/CBD/WG-ABS/8/ INF/3, 30 July 2009. FAO (2009) Report of the Twelfth Regular Session of the Commission on Genetic Resources for Food and Agriculture, FAO doc. CGRFA-12/09/Report, 19–23 October 2009, Rome, Italy: Food and Agriculture Organization of the United Nations. Hoare, A.L. and Tarasofsky, R.G. (2007) ‘Asking and Telling: Can “Disclosure of Origin” Requirements in Patent Applications Make a Difference?’, Journal of World Intellectual Property 10(2): 149–169.

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ICC (2009) Pathogens and the International Regime on Access and Benefit-Sharing, ICC Doc No. 450/1051, 11 September 2009, Paris: International Chamber of Commerce. Kamau, E.C., Fedder, B. and Winter, G. (2010) ‘The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: What is New and What Are the Implications for Provider and User Countries and the Scientific Community?’, Law, Environment and Development (LEAD) Journal 6(3): 246–262. Schei, P.J. and Tvedt, M.W. (2010) ‘Genetic Resources’ in the CBD: The Wording, the Past, the Present and the Future, FNI Report No. 4/2010, March 2010, Lysaker, Norway: Fridtjof Nansen Institute. Shapiro, J.A. (2007) ‘Bacteria Are Small But Not Stupid: Cognition, Natural Genetic Engineering and Socio-bacteriology’, Studies in History and Philosophy of Biological and Biomedical Sciences 38: 807–819. Shapiro, J.A. (2009) ‘Revisiting the Central Dogma in the 21th Century’, Natural Genetic Engineering and Natural Genome Editing 1178: 6–28. Tvedt, M.W. (2006) ‘Elements for Legislation in User Countries to Meet the Fair and Equitable Benefit-Sharing Commitment’, Journal of World Intellectual Property 9(2): 189–212. Tvedt, M.W. (2010) ‘Patent Law and Bioprospecting in Antarctica’, Polar Record 47(1): 46–55. Tvedt, M.W. and Young, T.R. (2007) Beyond Access: Exploring Implementation of the Fair and Equitable Sharing Commitment in the CBD, IUCN Environmental Policy and Law Paper No. 67/2, Gland, Switzerland: International Union for Conservation of Nature and Natural Resources. UNGA—United Nations General Assembly (2011) Oceans and the Law of the Sea. Report of the Secretary-General, Addendum, United Nations General Assembly, Sixtysixth Session, UN doc. A/66/70/Add.1, 11 April 2011, http://www.navy.mi.th/navedu/ stg/databasestory/data/Sea-stability/OceanManagement/Ocean%20and%20LOSC%20 UNGA%20Report%202011.pdf (accessed 14 March 2013). Vogel, J.H., Álvarez-Berríos, N., Quiñones-Vilches, N., Medina-Muñiz, J.L., Pérez-Montes, D., Arocho-Montes, A.I., Val-Merniz, N., Fuentes-Ramírez, R., Marrero-Girona, G., Mercado, E.V. and Santiago-Ríos, J. (2011) ‘The Economics of Information, Studiously Ignored in the Nagoya Protocol on Access to Genetic Resources and Benefit Sharing’, Law, Environment and Development (LEAD) Journal 7(1): 52–65.

3

The negotiations of the Nagoya Protocol Issues, coalitions and process

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Linda Wallbott, Franziska Wolff and Justyna Pożarowska Introduction When the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (NP) was adopted by the end of the International Year of Biodiversity in October 2010, its negotiators and experts had met some 20 times over 6 years (see Table 3.1). The result of this process was the NP, complemented by the Strategic Plan for Biodiversity 2011–2020 with its 20 targets on the conservation and sustainable use of biodiversity as well as a Strategy for Resource Mobilization to provide financial support for the Convention’s implementation. This chapter provides an overview of the Protocol’s negotiating history. We embed the understanding of this agreement in the wider constellation of actor interests and institutional arrangements from which it emerged. Our analysis is based on policy documents, including reports from relevant international meetings,1 the daily coverage of meetings by the Earth Negotiations Bulletin (ENB),2 party submissions, secondary literature and a multitude of interviews with negotiators, civil society observers and other stakeholders during the negotiations. We proceed as follows: First, we introduce the issue of access and benefit sharing (ABS) as it has historically evolved in various international arenas. On this basis, we provide an overview of the key issues of the ABS negotiations under the Convention on Biological Diversity (CBD) that led to the adoption of the Nagoya Protocol. This is followed by an exploration of the position of the main statecoalitions on these issues. It paves the ground for the subsequent analysis of the dynamics in the final negotiation phase, including the endgame in Nagoya, and of the trade-offs that resulted in the final agreement. Finally, a short outlook is given on future challenges regarding the implementation of the Protocol.

ABS as an emerging issue in international politics ABS related to genetic resources (GR) became an issue during the 1980s in three interlinked political arenas, namely agriculture, trade and intellectual property rights (IPRs) and the environment (Pistorius 1995; see also Raustiala and Victor 2004). In the agricultural arena, following awareness of ‘genetic erosion’ (Frankel

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and Bennett 1970), countries of the Global South started to argue that they provided a great wealth of GR for food and agriculture. These resources were used (often through international seed banks) and commercialized with the help of IPRs by breeders from the North. However, the resulting benefits were not shared with the ‘donor’ regions and the local farmers who had initially developed the material (Flitner 1995; Mooney 1983). The conflict (dubbed ‘seed wars’) was to some extent mitigated by adopting a nonbinding International Undertaking on Plant Genetic Resources for Food and Agriculture (1983) under the auspices of the Food and Agriculture Organization of the United Nations (FAO). The Undertaking stipulated that plant GR were a ‘common heritage of mankind’ and should consequently be available without restriction. However, it was clarified in 1989 that this would not preclude the application of plant breeders’ rights (i.e. specific IPRs for new plant varieties). This is regarded by some observers as bringing to an end the phase in which seeds were seen as a common heritage. As a consequence, developing countries started arguing for national sovereignty over GR instead (Rosendal 2006b: 269). In the trade and IPR arena, industrialized countries first tightened plant breeders’ rights in a revision of the International Convention for the Protection of New Varieties of Plants (UPOV-1991; Wolff 2004). In the negotiations leading to the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), they called for global IPR standards, including on biological matter. Particularly, the TRIPS negotiations influenced the ABS deliberations within the CBD (Rosendal 2006a). Critics of IPRs—and in particular patents—on biological matter argued that these enabled the appropriation, without compensation or consent, of biological resources and knowledge of indigenous communities and farmers (later dubbed ‘biopiracy’), hence creating perverse incentives that encouraged the destruction of biodiversity (see Dutfield 2000). Repercussions of these conflicts occurred in the environmental arena. Advances in modern biotechnologies created new opportunities for commercializing GR from ‘wild’ biodiversity (SCBD 2010a), which was newly perceived as ‘green gold’. While biodiversity hotspots were located above all in the Global South, the technological utilization of biological resources and creation of value added took place mostly in the North, with IPRs hedging the costs of biotechnological research and development. Increasingly, patents were taken out on organic material like DNA and cell lines. The emerging discourse on the economic value of GR and on the distribution of benefits derived from their use (Suplie 1995) blended—and partly clashed—with the more traditional discourse on nature conservation. It was soon recognized that focusing on the conservation of species was insufficient to warrant their survival. Subsequently, different types of diversity—of ecosystems, species, genes—were brought together in the new concepts of ‘biological diversity’ and ‘biodiversity’ (Wilson 1988; see also Haila and Kouki 1994), and the management focus was expanded from ‘preservation’ towards ‘conservation’ and ‘sustainable use’ of nature. During the 1980s, a series of important declarations eventually culminated in

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The negotiations of the Nagoya Protocol 35 the launch of international negotiations on the CBD. It was opened for signature at the 1992 UN Conference on Environment and Development in Rio de Janeiro and entered into force in 1993. Industrialized and developing countries had entered the CBD negotiations with very different agendas (Rosendal 2000) that were also reflected in the ABS debate. Some of the more powerful countries from the North, notably the US along with Western conservation organizations such as the World Conservation Union (IUCN) or the World Wildlife Fund (WWF), were interested in protecting wild species and habitats. They wanted to exclude from the negotiations access to biological resources in the South, the economic value of GR and benefit sharing. In contrast, many countries from the South, supported by Southern nongovernmental organizations (NGOs) and Northern groups with a development focus, preferred to expand the treaty’s scope to domesticated biodiversity (cultivated plants, farm animals) and to the sustainable use (rather than pure preservation) of biodiversity. Furthermore, developing countries organized in the Group of 77 (G-77) and China sought to be compensated for conserving the world’s biodiversity hotspots, among others, through the transfer of (bio-)technologies (Heins 2001). In response to the aforementioned efforts of industrialized countries to globalize and/ or tighten IPR regimes on biological materials, including during the seed wars, developing countries gave up their earlier call for a ‘common heritage’ regime on GR (Rosendal 2000) and claimed national sovereignty over natural resources instead (McConnell 1996). Industrialized countries conceded to this claim when it became clear that otherwise many developing countries would not agree to the CBD. In exchange, no language restricting or regulating IPRs was included in the CBD, with Northern countries ‘confident that their interests would be secured by the TRIPS regulations under the WTO’ (Rosendal 1999: 10). In the end, the international community established a shared responsibility for the conservation and sustainable use of biodiversity (Art. 1 and 6 CBD) and introduced as a third objective ‘the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding’ (Art. 1 CBD). Governments also recognized the sovereign rights of states over their natural resources within their jurisdiction (Art. 3) and the authority of states to determine access to their GR (Art. 15). Specifically, Article 15 of the CBD requires that access to GR is based on ‘prior informed consent’ (PIC) and ‘mutually agreed terms’ (MAT). In practice, PIC is a public permit by a provider country authority that GR may be collected (in a specified area). MAT are a contract between the provider country authority and the user that regulates the conditions of utilization (e.g. allowing commercial use) and the terms of benefit sharing (through upfront payments, royalties etc.). Thus, the CBD was fully directed towards individually negotiated (‘bilateral’), private (i.e. contractual lawbased) ABS agreements to realize its third objective (Görg and Brand 2006). For the US, however, the national sovereignty principle was one of the reasons for not ratifying the CBD (Chandler 1993).

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After the CBD’s entry into force, the discussions on implementing the ABS provisions initially centred on how to operationalize access. Gradually, awareness shifted towards the realization of benefit sharing. At the CBD’s fifth Conference of the Parties (COP-5) in Nairobi in 2000, an ad hoc open-ended Working Group on Access and Benefit Sharing (WGABS) was established with the mandate to develop ‘guidelines and other approaches’ on ABS. The output—which became known as the Bonn Guidelines—was drafted in parallel to the closing negotiations within the FAO of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR)3 (Chambers 2003), which is the binding successor of the aforementioned International Undertaking. COP-6 adopted the Bonn Guidelines in The Hague in April 2002. In the negotiations on the Bonn Guidelines, industrialized countries mostly argued for voluntary provisions focusing on access (Frein and Meyer 2010). Developing countries, in contrast, fought for a binding protocol obliging user countries to implement domestic measures to support benefit sharing, including through prosecuting ABS violations by users under their jurisdiction (‘user measures’). While the Guidelines remained voluntary and focused on access, developing countries managed to assert some of their interests as well, for instance regarding the inclusion of biochemical compounds, the prevention of subordinating references to TRIPS and the establishment of some user responsibilities (Frein and Meyer 2010: 21). The partial success of the South resulted also from coalition building among the most biodiversity-rich developing countries: In February 2002, these had formed the Group of Like-Minded Megadiverse Countries (LMMC) that was to become an important actor in the following ABS negotiations (see section on LMMC below). After the adoption of the Bonn Guidelines, the LMMC—still dissatisfied with the Guidelines’ nonbinding nature and overall lack of user measures— successfully launched an initiative at the World Summit on Sustainable Development (WSSD) in Johannesburg later in 2002. It resulted, against initial opposition of the US and the EU, in the recommendation to ‘negotiate within the framework of the CBD an international regime to promote and safeguard the fair and equitable sharing of benefits arising out of the utilization of genetic resources’ (para. 44(o) Johannesburg Plan of Implementation). This recommendation emphasized benefit sharing rather than access and, reinforced by UN General Assembly resolution 57/260, triggered the negotiations of an ‘international ABS regime’, which was to become the Nagoya Protocol.

Key issues Legal nature A major controversy was whether the instrument to be adopted would be legally binding (Aubertin and Filoche 2011: 54). The WGABS’ mandate of 2004 stated that ‘[t]he international regime could be composed of one or more instruments within a set of principles, norms, rules and decision-making procedures,

The negotiations of the Nagoya Protocol 37 legally-binding and/or non-binding’ (COP decision VII/19). The contentiousness of the issue is related, among others, to the fact that the legal nature and bindingness of the ABS regime concerns not only the enforceability of state conduct but also the compliance of private actors with user measures and the establishment of possible sanction mechanisms. Furthermore, it affects the regime’s relationship with other international institutions (see section on ‘Relationship with other international agreements’ below).

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Scope Another fundamental conflict in the ABS negotiations revolved around the scope of the Protocol-to-be, that is, the kind of resources and traditional knowledge (TK) covered. Three (partly interrelated) dimensions of scope can be distinguished (see also Buck and Hamilton 2011; Frein and Meyer 2011; Winter and Kamau 2011). First, the issue of geographical scope relates to the question whether only resources under national jurisdiction—as set out in Article 4 CBD—or also those resources accessed in areas beyond national jurisdiction (most importantly, the high seas and the Antarctic area) would be covered. Since these are governed by the United Nations Convention on the Law of the Sea (UNCLOS) and the Antarctic Treaty (AT), the geographical scope also related to the Protocol’s relationship with other agreements (see section on ‘Relationship with other international agreements’ below). Second, temporal scope deals with the two questions of whether and how to address the utilization of GR and associated TK (1) collected before the entry into force of the CBD and (2) accessed between the entry into force of the CBD in 1993 and the entry into force of the Nagoya Protocol. Regarding the first, it was particularly debated whether the future Protocol should extend to GR acquired in pre–CBD times and stored in ex-situ collections (such as gene banks and botanical gardens), used in research and development after 1993. Regarding the latter, a number of provider countries insisted that ABS obligations had actually started in 1993 with the CBD’s coming into force. All in all, the issue of temporal scope points to the disputed question whether the Protocol should apply at the point of access to GR (in provider countries) or at the point of utilization (in user countries). Finally, economic scope relates to the question whether the Protocol should merely cover the use of genes/DNA or also the biochemical compounds resulting from the activity of genes, situated within or outside the genetic material. In this context, it was disputed whether biological resources, derivatives4, pathogens5 and human GR6 should be included in/excluded from the Protocol’s scope of application. While the breeding sector uses the genetic information/DNA of the resource, other sectors such as medicine, cosmetics and food supplements industries use biochemical compounds of GR (BD et al. 2009: 1). If the use of biochemical components was excluded from the scope of the Protocol—as one interpretation of relevant CBD provisions suggests—a majority of bioprospecting cases would not be subject to benefit sharing (see Tvedt, this volume). Another

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facet of the discussions on economic scope was whether benefits should be shared that are not directly derived from raw materials (such as plant specimens collected directly from the field) but that arise from intermediate research products that are based on synthetic processes of isolated gene sequences. These might, after all, be obtained from GR stored in ex-situ collections or imported for consumption but subsequently used for research purposes, for example, Rooibos tea (Gupta 2011).7 The definition of the Protocol’s economic scope would also affect its relationship with other international agreements that had designed or were developing other ABS systems (ITPGR, World Health Organization; see section on ‘Relationship with other international agreements’ below). Traditional knowledge Critical questions during the negotiations included (CBD 2009b): What conditions should govern access to traditional knowledge associated with GR? Should benefits resulting from its utilization be shared? TK, originally held by indigenous and local communities (ILCs), is often used for identifying potentially valuable GR and biochemical compounds in nature (‘bioprospecting’, Sampath 2005) as well as for developing new products from GR (see also previous section on Scope). However, this may happen without the consent and compensation of the knowledge holders, creating instances of ‘biopiracy’. Furthermore, user companies may be awarded patents on products or processes that are not novel because they have long been known to ILCs—without having been published or recognized in the (Western-based) international IPR system (cf. Görg and Brand 2006: 109; McGraw 2002). After their demands to recognize TK in fora addressing IPRs, such as TRIPS and the World Intellectual Property Organization (WIPO), had largely failed, developing countries pushed (successfully) for subjecting access to TK associated with GR to the PIC and MAT requirements (and hence to benefit sharing). This met with some opposition by developed countries, especially as regards the application of indigenous rights and/or disclosure requirements to TK issues. Hence, they argued that ongoing negotiations within WIPO covered TK as a whole, including TK associated with GR. A special case intensely debated was the status of ‘publicly available’ TK like Indian Ayurveda or traditional Chinese medicine (Nijar 2011c: 28). It was disputed whether in such cases of diffused knowledge, in which no particular holder of TK can be identified, PIC and MAT should instead be established with the respective government. This demand of some developing countries (see section on ‘Key actors and interests’ below), however, was rejected by developed countries, which preferred the unconditioned access to such TK (‘public domain’). International access standards Access to GR and associated TK was at the core of industrialized countries’ and business sector interest (e.g. CBD 2007b: 28–33). From their perspective, existing

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The negotiations of the Nagoya Protocol 39 procedures were often not conducive to access and de facto impeded the development of biotechnological, pharmaceutical and other relevant industries. To start with, not all provider countries had established their own national ABS legislation, leaving users with legal uncertainty. In other provider countries, ABS legislation existed but access procedures were nontransparent and cumbersome. Access procedures were also not standardized among provider countries and in some cases gave preferential treatment to domestic users. The demands of user countries in the negotiations hence included equal treatment of foreign and national applicants for access in line with internationally standardized WTO rules; effective ABS decision making by competent authorities including time- and cost-effective processing of applications and issuance of necessary documents; and easy access to relevant information such as data on national ABS legislation or obligations vis-à-vis ILCs. In addition, industrialized countries requested simplified access for noncommercial research. Compliance measures to support benefit sharing As mentioned before, the CBD promotes private-law contracts between providers and users that cover inter alia the access conditions and the terms and volume of benefit sharing. Since not much benefit-sharing revenues had accrued since the CBD’s entry into force (SCBD 2010a), the core demand of developing countries for the international ABS regime was that user countries support them in the enforcement of benefit-sharing obligations. For this purpose, ‘compliance measures’ were to be developed. These encompass policies (at user country or international level) aimed to support compliance of users with (a) ABS law in provider countries and (b) private ABS contracts (MAT; CBD 2009a). A third level of compliance—with the Protocol as such—refers to the behaviour of states rather than of users and is not dealt with here. Above all, provider countries called upon user countries to ensure that GR/ TK utilized on their territories had been acquired in accordance with providercountry ABS legislation, especially regarding PIC and MAT (Barber et al. 2003). For this purpose, they should monitor the flows and utilization of GR/TK on their territories. This implied establishing ‘checkpoints’, that is, authorities that would collect information on GR such as their source, legal status and authorized form of utilization (commercial/noncommercial). Concrete checkpoints discussed included customs, research funding organizations, patent offices (favoured by developing countries) and authorities responsible for marketing or other approvals (e.g. of drugs, cosmetics, chemicals including biocides and pesticides, food additives, novel food, genetically modified organisms etc.). An international certificate, to be notified to an ABS clearinghouse and to be submitted at checkpoints, was proposed to confirm either the origin of the GR/TK, its source, its legal provenance or—as was finally agreed—users’ compliance with providers’ ABS requirements (CBD 2007a). With regard to compliance with MAT, user countries should also facilitate appeal procedures and access to justice in their own jurisdictions.

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Building on previous similar but unsuccessful calls within the WTO and WIPO, developing countries advocated the introduction of an obligatory requirement to disclose the origin of GR/TK in patent applications, underpinned by sanctions. A strong disclosure requirement was perceived by them as the most effective way of enforcing benefit sharing. The majority of developed countries, however, opposed any interference with the international patent system (see section on ‘Key actors and interests’ below).

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Relationship with other international agreements The relationship between the prospective Protocol and other relevant international instruments was another important point in the negotiations since ABS regulation under the CBD overlaps, for instance, with agreements or organizations addressing: (a) specific types of GR such as the FAO’s ITPGR (regarding specific plant GR for food and agriculture), UNCLOS and the Antarctic Treaty (marine and other GR) and the WHO (pathogens); and (b) IPRs such as UPOV, TRIPS and WIPO (see Oberthür and Pożarowska, this volume). Such institutional complexity raises the problem of delimitating jurisdictional competences with regard to ABS. Generally, developing countries argued for the Protocol to become an umbrella treaty that should provide rules and provisions spanning other relevant international instruments (ENB 2010a). In this vein, they also argued that the WTO-TRIPS and WIPO patent systems should be amended to require mandatory disclosure of source/origin of GR/TK in patent applications (Deere 2011: 96). In contrast, developed countries aimed at excluding from the Protocol’s scope GR or ABS issues covered by other existing or prospective international instruments. Above all, they were adamant to prevent the Protocol from interfering with WTOTRIPS, which requires that innovations based on GR shall in general be patentable (with some defined exceptions and special cases; see Art. 27.1 and 27.3(b) TRIPS) and is endowed with its own enforcement procedure. They rejected a mandatory disclosure obligation in patent application under the NP arguing that the international patent system was not to achieve ABS objectives. Furthermore, they argued for addressing TK within WIPO that had been working for a considerable time on the issue (TWN 2009). Later in the negotiations also the issue of benefit sharing from pathogens emerged. Covering pathogens within the Protocol (as requested by developing countries) would ensure fair benefit sharing from the use of viruses for vaccine production, which was lacking under the WHO. This request met with opposition from developed countries that insisted on addressing this matter under the WHO. At the same time, though, these countries tried to ensure expeditious access to pathogens in cases of health emergencies under the Protocol. Furthermore, conflicts existed with respect to the inclusion of GR placed in areas beyond national jurisdiction (especially marine GR), which have not been subject to any ABS mechanism so far but could in principle be addressed within other existing institutions (UNCLOS, Antarctic Treaty).

The negotiations of the Nagoya Protocol 41

Key actors and interests This section profiles the main state-based coalitions that shaped the course of ABS negotiations under the CBD (on the role of nonstate actors, see Orsini, this volume). Since ‘material interest structure goes a long way in predicting the parties’ negotiation positions’ (Rosendal 2000: 125), we in particular consider the wealth in GR (linked to biological diversity) and the related technological capacity (biotechnology, pharmaceuticals, cosmetics, agriculture etc.; see SCBD 2010a).

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JUSCANZ JUSCANZ is a group of non–EU industrialized countries initially formed by Japan, the US, Canada, Australia and New Zealand around 1995 and later joined by Switzerland, Norway and Iceland.8 It is no negotiating group but perceives itself as an informal platform for exchanging views among states with similar interests (Just et al. 2010: 48). Apart from selected regions in the US, Japan and Australia, JUSCANZ members are not particularly rich in biodiversity but are important user countries with significant biotechnology, pharmaceutical and/or biochemical sectors. The US is by far the largest single biotechnology market (Bourne Partners 2011) and also spearheads the global pharmaceutical market (VFA 2010). While it has not ratified the CBD, it has attended the NP negotiations. During these, Japan, Canada and New Zealand acted as more ‘hard-line’ JUSCANZ members (partly also expressing US interests), with Switzerland and Norway taking more moderate positions (see also Hufty et al. in this volume). Initially, JUSCANZ members opposed any new international instrument on ABS, pointing to national ABS legislation and the Bonn Guidelines (with only Norway stating that the latter should be further developed into a Protocol to the CBD). JUSCANZ members were eager to ensure legal certainty in the context of access standards to GR. They also wanted to secure that the Protocol would be TRIPS compatible and not preempt IPRs related to inventions based on the use of GR/TK (see also Brand et al. 2008). They moreover opposed disclosure requirements in patent applications (with the exception of Norway and Switzerland) and rejected an internationally recognized certificate of compliance with ABS regulations in provider countries (with the additional exception of Australia). JUSCANZ also argued for TK to be dealt with at the national level, with Canada taking the most hesitant position on recognizing ILCs. Finally, the group fought for the prospective instrument to have limited scope, excluding, for example, derivatives, pathogens and products, human GR and collections of ex-situ resources. The European Union Apart from the Mediterranean basin, Europe has no biodiversity hotspots. However, following the US, it is the most significant site for research and development on GR, for example, in the biotechnology sector (Bourne Partners 2011) but also

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in other user sectors (cf. Frison 2007; Hernandez 2007). This has shaped the negotiation positions of the EU and other European countries, including, with a lesser role, the non–EU Central and Eastern European countries. The EU played a major role in the Nagoya Protocol negotiations (see also Oberthür and Rabitz, this volume). In the early years of negotiating (around 2004), it prioritized the implementation of the Bonn Guidelines over developing a new and binding international regime. By 2007, the EU, deviating from other developed countries, declared itself ready to support the legal bindingness of at least some elements of a regime—on condition that the regime included international access standards and a legal framework favourable to free trade. Elements that the EU was willing to accept as binding included standardized ‘material transfer agreements’ in different sectors, an internationally recognized certificate of compliance and specific types of compliance measures. Building on the existing option within the EU Biotechnology Directive (1998) to nationally require disclosure of origin, the EU was ready to accept the possibility to disclose the origin of GR and associated TK in patent applications and was determined to do so under the WTO and/or WIPO rather than under the CBD. While the EU moved to support a (fully) binding Protocol and the certificate of compliance, it rejected inclusion of a list of checkpoints into the Protocol and in particular the mandatory designation of patent offices. Like most developed countries, the EU advocated a narrow temporal and economic scope of the Protocol. In this context, it particularly demanded immediate access to pathogens in health emergencies and simplified access for noncommercial research. It further agreed to the inclusion of TK into the Protocol’s ABS provisions, though not into its monitoring system and sidelining a reference to publicly available TK. With regard to other international agreements, the EU was cautious not to overhaul existing treaty obligations, for example, from the ITPGR. It strongly rejected interference with WTO-TRIPS and insisted that the IPR-related aspects of TK protection be primarily discussed in WIPO. It also argued that any regulation of (marine) GR beyond national jurisdiction would fall under the authority of UNCLOS and the Antarctic Treaty system. Like members of JUSCANZ, the EU was eager to provide flexibility for future development of specialized ABS systems. The G-77 and China As the largest intergovernmental organization of developing countries, the G-77 and China involves those (mostly tropical) nations that are richest in biodiversity. Apart from assembling provider-country interests, some of its newly industrializing members feature emerging biotechnology and pharmaceutical sectors, most notably Brazil, China and India (Ernst & Young 2011). These few but vocal members have hence increasingly developed user-country interests in addition to their long-standing provider-country perspectives. Following the entry into force of the CBD, resource-rich G-77 countries like Brazil, India, Costa Rica and South Africa were proactive in drafting national ABS regulations. However, the lack of user-country measures led them to regard

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The negotiations of the Nagoya Protocol 43 internationally binding regulation as the only means to prohibit the misappropriation of GR and to implement fair and equitable benefit sharing (Winter and Kamau 2011: 374–75). During the ABS negotiations, members of the G-77 and China rarely acted as one homogeneous negotiation group but pursued their interests in various subgroups. These subgroups shared similar positions on key issues and in their general approach to frame the issue not only as a technical but also as a political and legal one. Hence, they advocated a legally binding regime with a focus on benefit sharing rather than on access, with the widest possible scope and binding compliance measures, including checkpoints such as patent offices, customs and research institutes in user countries. Furthermore, they saw international ABS negotiations as an opportunity to reform intellectual property law, particularly by linking the ABS system to the patent system. Differences between—and within—these coalitions were rooted, among others, in differences in the natural biodiversity endowment, levels of development, existence and legal/political standing of ILCs, wealth of TK and (evolving) technological capacity including prospective own user capacities. As a result, the ABS negotiations saw an increasing differentiation of the G-77 and China. The Like-Minded Megadiverse Countries (LMMC) Formed in 2002, the LMMC group counted 17 members in 2004–2005 (Bolivia, Brazil, China, Columbia, Costa Rica, the Democratic Republic of Congo, Ecuador, India, Indonesia, Kenya, Madagascar, Malaysia, Mexico, Peru, the Philippines, South Africa and Venezuela). These contain approximately 60 to 70 per cent of the terrestrial species diversity and are mostly acknowledged as ‘megadiverse countries’ by the United Nations Environment Programme (UNEP) (Voges and Biberhofer 2010: 124). Several LMMC members are among the developing countries that have increasingly developed user interests as well, especially China, India and Brazil (Ernst & Young 2011). The founding objective of the LMMC was to exert leadership towards the creation of an international ABS regime, including legally binding instruments and compliance provisions (LMMC 2002a, 2002b). The LMMC argued that the realization of the potential value of natural resources and GR and their integration in the international IPR system (Voges and Biberhofer 2010: 115) was a necessary means to promote sustainable development. Without an internationally binding regulation, access for scientists, companies and private investors could easily be restricted (Winter and Kamau 2011: 375). The LMMC advocated an encompassing scope of the Protocol. Since the creation of wealth and of benefits to be shared would in a large majority of cases result from processing activities of biochemical components of GR (cf. BD et al. 2009: 1; ten Kate and Laird 1999: 2), a meaningful agreement would be conditional on the inclusion of derivatives and extracts. The LMMC were intent on balancing new international access standards with strong compliance measures, a certificate of origin and the checkpoint system for research and development in user countries. In 2005, the coalition requested

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‘mandatory disclosure of the country of origin of biological material and associated TK in the IPR application, along with an undertaking that the prevalent laws and practices of the country of origin have been respected, (and) mandatory specific consequences in the event of failure to disclose the country of origin in the IPR application’ (LMMC 2005). Accordingly, provisions of international agreements like WTO-TRIPS should be harmonized with the Protocol-to-be, for example, through amendments to ensure effective implementation of ABS.

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The Like-Minded Asia-Pacific Countries (LMAPC) The Asian-Pacific region is one of the most biodiversity-rich regions in the world. But also in terms of the technological and industrial use of GR, individual countries such as China, India and Singapore have developed relevant markets. Under the leadership of Malaysia, several developing country members of the Asia-Pacific countries formed the LMAPC in 2009 to play a more prominent role in the negotiations. LMAPC have shared many core positions with the LMMC, arguing for a single legally binding instrument, wide scope, harmonization of relevant international agreements, a clear system for benefit sharing and a strong compliance system including disclosure requirements and checkpoints. The group opposed mandatory language related to a list of measures on access. One particular feature of the LMAPC was their concern with TK. Especially India, Nepal and China argued for benefit sharing from the use of publicly available TK that was not identifiable with any specific ILC, like Ayurveda or traditional Chinese medicine. Such TK should not be considered freely accessible. Instead, PIC and MAT requirements would not only apply in principle as well but should furthermore be secured at country level (ENB 2009). The African Group The African Group (AG) is an official UN regional group with 54 members covering all African UN members. A number of the (especially tropical) regions represented by these countries are rich in biodiversity. In terms of technological capacities for using GR, the only relevant biotechnology sector is in South Africa (Ernst & Young 2011), and Africa’s capacity for pharmaceutical research and development and local drug production features among the lowest globally (Berger et al. 2010). Like other G-77 coalitions, the AG called for a legally binding regime. As regards scope, however, the coalition’s position was more ambitious than the one of other G-77 subgroups. It insisted more than others on covering GR beyond national jurisdiction (especially marine GR) and human GR by the Protocol and advocated a broad reference to derivatives in all their current and future forms. An international agreement should be rooted in the principles of ‘use and utilization’ and value adding: Hence, also ex-situ collections that are the basis of continuing and derivative uses should be included in the benefit-sharing provisions of the Protocol.

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The negotiations of the Nagoya Protocol 45 Specifically, future access to TK should be in accordance with customary laws, practices and procedures of ILCs. Benefits should be shared directly with the community providing the knowledge through processes overseen by national governments. The AG proposed a global multilateral benefit-sharing mechanism that should receive the benefits from the utilization of GR for which PIC was not (any more) available. This funding would be used for the conservation and sustainable use of biodiversity in developing countries and thus to realise the CBD’s broader agenda. In pursuing a ‘holistic approach’, the Group also requested respect for sovereign rights, national legislation, compliance, disclosure and access to research and technology relevant to biological resources and GR. Linking access standards and user measures, strong checkpoints in both provider and user countries should verify certificate-based information on GR. Finally, the AG advocated an umbrella Protocol spanning other international agreements in order to prevent parallel processes of international ABS politics (for more detail, see Wallbott in this volume). The Group of Latin American and Caribbean Countries (GRULAC) GRULAC consists of 33 member states. The region contains a tremendous variety of ecosystems, more than 40 per cent of global biodiversity, and is the single most biologically diverse area in the world (Bovarnick and Alpizar 2010: 2). However, only a few GRULAC members have significant capacities to process these resources industrially. Above all, Brazil has an expanding biotechnological sector (Ernst & Young 2011: 32) and, along with Mexico and Argentina, a relevant pharmaceutical market (Espicom 2012). Given the considerable overlap of their membership, the positions of GRULAC and the LMMC show significant proximity on key issues, including a legally binding protocol and access standards. GRULAC was prepared to accept text references to TK associated with GR, with PIC required according to national legislation. Also, GRULAC suggested that ‘provider countries may choose not to issue a certificate if they decide not to require PIC under Article 15.5 CBD’ (ENB 2010a). Any certificate, however, should contain a list of minimum criteria. Also, GRULAC recognized the need to establish appropriate access to justice and redress mechanisms for providers and users in national legal systems. Finally, GRULAC aimed for explicitly stressing and ensuring ‘mutual supportiveness’ of the Protocol and other agreements.

Developing the Nagoya Protocol: Reflections on negotiation dynamics The long and winding road to Nagoya Following the WSSD in Johannesburg and the resolution of the UN General Assembly in 2002 (see section on ‘ABS as an emerging issue in international politics’ above), negotiations of an ‘international regime on access and benefit-sharing’

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were formally mandated within the framework of the CBD at COP-7 in Kuala Lumpur in 2004 (Decision VII/19). At the instigation of user countries, the CBD negotiation mandate was not restricted to benefit sharing (like the WSSD mandate) but also included access. The subsequent process in the WGABS (see Table 3.1) was first focusing on exploring options and positions regarding the regime’s legal nature, scope and elements, including with the help of a gap analysis and technical expert groups. At the fourth WGABS meeting in Granada in January 2006, the AG submitted a first draft text for an ABS Protocol (see Wallbott, this volume). However, at that time, most of the developed countries were still opposed to a legally binding instrument and were not yet ready to engage in text-based negotiations. As a result, despite the insistence of developing countries to use it as a basis for negotiations, this so-called ‘Granada text’ was eventually dropped. Still, the discussions helped focus the diverging perspectives of developing and developed countries. At COP-8 in Curitiba in 2006, parties agreed to complete the work on the international regime before COP-10 (2010; Decision VIII/4). They also introduced permanent co-chairs for the Working Group, thus providing greater continuity and facilitating the subsequent deliberations. WGABS-6 (Geneva, 2008) was critical as it served to hammer out what parties considered to be must-haves (so called ‘bricks’) and may-haves (so called ‘bullets’) of the regime (CBD 2008a: Annex). Negotiations intensified at COP-9 (Bonn) in 2008, when a roadmap was adopted and a detailed timetable spelled out. The COP also decided to establish three expert groups to support the work of the WGABS (Decision IX/12). At WGABS-7 (Paris) in 2009, text-based negotiations finally started, with operational text being developed on the basis of material submitted by the different groups based on the identified bricks and bullets. By the end of 2009, at WGABS-8 in Montreal, negotiators faced a text of 57 pages and 3,400 pairs of square brackets (ENB 2010a), a convolute known as ‘the Montreal Annex’. In 2010, the number of meetings further increased (see also Table 3.1). During WGABS-9 in Cali (Colombia) in March 2010, negotiations proceeded in a regionally balanced negotiation format (‘Vienna Setting’). Conflict became rife again, mainly surrounding questions of compliance and scope, including the question of whether pathogens should be covered by the Protocol.9 Parties mutually accused each other of acting in bad faith and trust seemed lost. Nevertheless, the co-chairs were able to present a draft protocol (‘Cali Annex’, CBD 2010a). At the meeting of the CBD’s Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) in Nairobi in May 2010, it became clear that the AG and GRULAC were considering employing the Strategic Plan for Biodiversity 2011–2020, an overarching framework on biodiversity including a set of biodiversity targets desired by industrialized countries, as a means to influence the ABS negotiations. In a fragile setting, parties resumed WGABS-9 in Montreal in July 2010 and met as an Interregional Negotiating Group (ING) again in Montreal (September 2010) and then in Nagoya (October 2010) right before the start of COP-10. Resembling the aforementioned Vienna Setting, the ING comprised five representatives from each UN region, two representatives each for ILCs, civil

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Table 3.1 Relevant meetings during the ABS negotiations (2002–2010) (Continued ) Meeting

Date and venue

Main issues/results

WSSD

08–09/2002 Johannesburg, South Africa

Recommendation to negotiate within CBD an international benefit-sharing regime

WGABS-2

12/2003 Montreal, Canada

Experiences with Bonn Guidelines

COP-7

02/2004 Kuala Lumpur, Malaysia

Mandate to the WG-ABS to negotiate an international ABS regime

WGABS-3

02/2005 Bangkok, Thailand

Start of negotiations; international certificate and compliance measures

WGABS-4

01–02/2006 Granada, Spain

Draft Protocol text by the African Group; international certificate and compliance measures

COP-8

03/2006 Curitiba, Brazil

Request to WG-ABS to complete work before COP-10

WGABS-5

10/2007 Montreal, Canada

Benefit sharing, access, compliance, TK, capacity building

WGABS-6

01/2008 Geneva, Switzerland

Development of working document with must-have and may-have components

COP-9

05/2008 Bonn, Germany

Roadmap for completion of negotiations by 2010

WGABS-7

04/2009 Paris, France

Negotiations of operational text on objective, scope, compliance, benefit sharing, access

WGABS-8

11/2009 Montreal, Canada

Nature of regime, TK, capacity building, compliance, benefit sharing, access; adoption of Montreal Annex

WGABS-9

03/2010 Cali, Columbia

Derivatives and certificate of compliance; draft Protocol (Cali Annex)

WGABS-9bis (resumed)

07/2010 Montreal, Canada

Work on Cali Annex; scope and pathogens, derivatives, utilization, compliance measures

ING

09/2010 Montreal, Canada

Negotiations on revised Cali Annex; relationship with other instruments, compliance, scope, pathogens, derivatives and utilization (Continued )

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Table 3.1 (Continued ) Meeting

Date and venue

Main issues/results

ING

10/2010 (13–15) Nagoya, Japan

WGABS-9ter (resumed)

10/2010 (16) Nagoya, Japan

COP-10

10/2010 (18–29) Nagoya, Japan

Final negotiations including on scope, utilization, derivatives, compliance measures, relationship with other instruments, emergency situations and TK-related issues; informal ministerial consultations on draft compromise proposal by Japanese COP presidency; adoption of Nagoya Protocol

Sources: Data from WGABS and COP reports, CBD (2012), Earth Negotiations Bulletin, interviews. Note: In addition, four expert meetings took place on: an ‘Internationally recognized certificate of origin/source/legal provenance’ (01/2007 in Lima, Peru), ‘Concepts, terms, working definitions and sectoral approaches’ (12/2008 in Windhoek, Namibia), ‘Compliance with user-measures’ (01/2009 in Tokyo, Japan) and ‘Traditional Knowledge associated with Genetic Resources’ (06/2009 in Hyderabad, India).

society, industry and public research, as well as representatives of the current (Japan) and upcoming (India) COP presidencies. While progress was made, several issues remained pending, including scope and compliance issues. Just after the meeting in September in Montreal, the G-77 and China raised the pressure10 at the UN General Assembly High-Level Meeting on Biodiversity by making the adoption of the Strategic Plan dependent on the finalization of the Protocol and the CBD Strategy for Resource Mobilization. Northern countries could hardly reject the suggestion if they wanted to avoid blame for not halting the continuing loss of biodiversity, given the failure to reach the international objective agreed at the WSSD in 2002 to significantly reduce the rate of biodiversity loss (SCBD 2010b; see also Billé et al. 2010). Furthermore, another failure of UN negotiations after the 2009 climate summit in Copenhagen would have put the system of multilateral environmental governance as a whole in crisis. Hence, pressure was high and, given the cleavages regarding scope and compliance, many parties and observers doubted that there could be a substantial agreement in Nagoya. Dynamics of the negotiations at COP-10 When COP-10 started, 18 out of 37 articles of the draft Protocol had been approved and another 6 articles were largely free of brackets. However, a solution for major contentious issues remained outstanding (CBD 2010b). The Nagoya ABS discussions were again conducted in the Vienna Setting of an informal consultative group, and small drafting groups were formed to deal with the outstanding issues. During the first week of the COP, a number of the less essential articles were agreed upon. Progress, however, could not be sustained the closer negotiators came

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The negotiations of the Nagoya Protocol 49 to the hot potatoes of the concept of utilization, derivatives and temporal scope as well as compliance including checkpoints. Half-way into the second week, fundamental differences persisted, most importantly on utilization/derivatives, and rumours spread that only a ‘framework’ ABS agreement might be adopted. In this atmosphere, developing countries reiterated that the adoption of a Strategic Plan and the Strategy for Resource Mobilization would depend on the adoption of an ABS Protocol. On its part, the Japanese COP presidency asked the informal consultative group to complete the negotiations by midnight of 28 October. Should the deadline not be met, the COP president would, after bilaterally consulting with regional leaders, prepare a proposal for consideration by the COP at the next (and final) day (CBD 2011: para. 92). After a compromise proposal by the presidency had been discussed in informal and ministerial consultations throughout the night and the morning of 29 October, the presidency finally presented a ‘take it or leave it’ draft of the Protocol. It had been produced in consultations with a small group including the EU, Brazil, Norway and the AG (not, however, Asian-Pacific parties; Nijar 2011a). Allegedly, the cornerstones of the deal were: an agreement on the concept of ‘utilization’ struck between Brazil and the EU; accommodation of the suggestion of the AG to establish a Global Benefit-Sharing Mechanism for those resources for which PIC/MAT could not be obtained anymore; and a special clause on ABS for pathogens in case of health emergencies (ENB 2010b). Also, Japan motivated the process by announcing that it would contribute US$2 billion and the establishment of a Japan Biodiversity Fund, both in support of implementing the Convention (TWN 2010). Although a great number of governments (in particular, of the LMAPC) had not been represented in the making of this deal, the draft protocol was presented by Japan as ‘a genuine compromise text’ (Aubertin and Filoche 2011: 57; also Buck and Hamilton 2011) between user and provider countries. This view was not shared by all parties, and some protested vehemently against the exclusive process and its outcomes (CBD 2011; ENB 2010c). Also, many civil society organizations were disappointed with the result. The draft text by the Japanese presidency was finally adopted and an intergovernmental committee was established to undertake the necessary preparations for the first meeting of the parties to the Protocol. The Nagoya Protocol became part of a bigger package including the Strategic Plan (Decision X/2) and the Strategy for Resource Mobilization (Decision X/3). Main elements of the Nagoya outcome To start with, the Nagoya Protocol is binding for those countries that will ratify it. With regard to scope, the Protocol geographically applies to GR ‘within the scope of Article 15’ of the CBD, including those GR over which states exercise sovereign rights, that is, which are under parties’ national jurisdiction. As a consequence, bioprospecting activities and (marine) GR in the high seas or Antarctica are not regulated by the Protocol. Importantly, the Protocol does not explicitly address temporal scope and only deals with the issue implicitly in its Article 10

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on the global multilateral benefit-sharing mechanism. This article stipulates that benefits resulting from the utilization of GR or TK that ‘occur in transboundary situations’ (e.g. in more than one country of origin) or for which it is not possible to grant or obtain PIC (e.g. because they were collected in past times) might in the future be shared through the aforementioned global mechanism that would complement the (bilateral) contractual law approach to ABS (Buck and Hamilton 2011). Article 10 establishes a ‘procedural obligation’ (Buck and Hamilton 2011), with the design and modalities of a global mechanism being subject to further negotiations. Whereas the issue of ex-situ resources is not addressed explicitly, derivatives are defined in Article 2, which broadens the economic scope of the Protocol to include not only genetic information but also ‘naturally occurring biochemical compound[s] resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity’ (Art. 2(e) NP). Whereas this excludes from the Protocol synthetic molecules that are (indirectly) modelled on GR falling within its scope, it captures, for example, medicines that are (directly) based on biochemical substances. Furthermore, derivatives are implicitly captured by the imminent link between benefit sharing and the concept of ‘utilization of GR’. The latter is defined as ‘research and development on the genetic and/or biochemical composition of genetic resources’ (Art. 2(c) NP, own emphasis). This language broadens the scope of the Protocol beyond what industrialized countries originally wanted. Finally, regarding pathogens, Article 8(b) NP calls upon parties to ‘[p]ay due regard to emergencies’. Article 4 on the relationship with other agreements and instruments is also relevant in this respect (see below). Regarding TK associated with GR, the Nagoya Protocol goes beyond the CBD and to a certain extent accommodates developing country preferences: It subjects access to such TK held by ILCs to PIC by and MAT with these communities (Art. 7) and requires that benefits are shared with them (Art. 5.5). Also, guidelines are set with regard to domestic policies on TK associated with GR (Art. 12). These requirements are, however, qualified by references to ‘[i]n accordance with domestic law’ and ‘as appropriate’. Furthermore, the Protocol does not define what TK is, when it is ‘held’ by a community and what an indigenous and local community is. Neither is TK covered by the monitoring system or the international certificate that the NP establishes in its Article 17. Finally, all references to publicly available TK were eliminated in the end. Still, with TK being covered under the Protocol, countries can subject such knowledge to ABS obligations in their domestic law (ENB 2010c). The access provisions in Article 6 of the Protocol reaffirm sovereign rights over natural resources. Subject to domestic legislation, a user desiring to access GR needs to obtain PIC of the providing party. PIC is only required when a provider country has passed ABS legislation. This is a deviation from the CBD, which stipulates that PIC is always required ‘unless otherwise determined by that party’ (Art. 15.5 CBD). Developed countries were also successful in linking the introduction of user measures to that of legally certain, clear and transparent domestic access provisions in provider countries: In the Protocol, provider countries

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The negotiations of the Nagoya Protocol 51 that require PIC for access to GR are obliged to create a ‘user-friendly’ system for access (cf. Oberthür et al. 2011). They shall provide, inter alia, for ‘legal certainty, clarity, and transparency’ of their domestic ABS legislation, ‘fair and nonarbitrary’ access rules, ‘information on how to apply for prior informed consent’ and criteria and procedures for establishing MAT and for obtaining PIC or approval and involvement of ILCs. National focal points and competent national authorities are responsible for advising on PIC and MAT, with the latter also having the responsibility of granting access (Art. 13). Regarding benefit sharing, the Protocol sets out that benefits arising both from the utilization (i.e. research and development) of GR/TK and from subsequent applications and commercialization shall be shared (Art. 5). In the case of GR or TK held by ILCs, benefits shall be shared with these communities. To support user compliance with benefit-sharing obligations, parties shall introduce effective measures, among others to deal with noncompliance, in order to provide that GR/ TK utilized within their jurisdiction have been accessed in accordance with PIC/ MAT (Art. 15 and 16). They also need to monitor the utilization of GR (Art. 17) by designating at least one checkpoint that will collect information on the source and utilization of a GR as well as on the existence of PIC/MAT. An internationally recognized certificate of compliance is introduced that will serve as internationally enforceable evidence of PIC and MAT. Certificates, once issued, will also be made available to the ABS Clearing House envisaged in Article 14. Finally, Article 18 obliges parties to provide in their jurisdictions access to justice and the possibility to seek recourse in case of disputes related to MAT. While binding compliance measures, checkpoints and the certificate are thus part of the Protocol, developing countries’ call for mandatory disclosure requirements and for a list of mandatory checkpoints—including patent offices—failed (cf. Kamau et al. 2010). Regarding its relation to other international agreements and instruments (see also Oberthür and Pożarowska, in this volume), the Protocol’s Article 4 determines that its parties can be parties to other relevant international agreements ‘provided that they are supportive of and do not run counter to the objectives of the Convention and this Protocol’. Furthermore, ‘specialized’ ABS instruments that fulfil this condition can overrule the Nagoya Protocol. As advocated by industrialized countries, the NP hence does not apply to GR covered by specialized ABS instruments; however, such instruments still need to take into account the ABS rules/ objectives of the CBD/NP regime. Table 3.2 shows that both developing and developed countries have managed to assert their interests on relevant issues. Overall, the Nagoya Protocol balances diverging interests while keeping alive the UN system of multilateral environmental negotiations. In analogy to McGraw’s conclusions on the CBD negotiations, the Protocol’s adoption ‘can be attributed not so much to the fact that both industrialized and developing countries found many areas of common ground. Rather, it demonstrates that each negotiating group had a substantial portion of their respective vital demands met within the framework of the agreed text’ (McGraw 2002: 29).

Source: Own compilation

Relationship with other international agreements

Benefit sharing and compliance/user measures

list of mandatory checkpoints (including patent offices); mandatory disclosure requirement; international certificate no subordination of NP

wide inclusion, including publicly available TK (LMAPC) —(no focus)

Scope Traditional knowledge

International access standards

legally binding

LMMC/LMAPC/ GRULAC

Legal nature

Issue

‘umbrella protocol’

access to TK in accordance with ILC practices and procedures like LMMC/LMAPC/ GRULAC plus direct benefit sharing with communities

very wide inclusion

legally binding

AG

JUSCANZ

no interference of NP with other IPR regulation

benefit sharing agreed in bilateral contracts; no binding compliance measures

stable international access standards

initially nonbinding, later bindingness depending on content strictly narrow no inclusion

Table 3.2 Key actors’ preferences on main elements of the Nagoya Protocol

no interference of NP with other regulation, recognition of specialized ABS instruments

limited support for binding user measures, but not: list of mandatory checkpoints (patent offices)

detailed access standards, legal certainty

narrow acceptance of limited inclusion

partial acceptance of bindingness

EU

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no subordination of NP, recognition of specialized ABS instruments

binding user measures: at least one checkpoint (no reference to patent offices); international certificate

rather narrow inclusion (but limited and not publicly available TK) detailed access standards

legally binding

Nagoya Protocol

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Concluding remarks The negotiation process of the Nagoya Protocol was shaped, for many years, by a rigid North-South divide and long-standing interest coalitions. The resulting Protocol, in the end, bridges vital interests of both industrialized and developing countries. On the one hand, countries rich in GR and poor in relevant technological and industrial capacities (mostly developing countries) were interested in a regime that stringently supports benefit sharing. Countries poor in biodiversity but well equipped with technologies (developed countries), on the other hand, advocated simple access to GR abroad. However, some of the newly industrializing countries such as Brazil, India and China have built up (bio-)technological capacities and have gradually developed user-country interests and identities next to their provider-country perspective. This transformation was particularly noticeable in the case of Brazil: Initially very vocal and powerfully influencing the LMMC positions, it later toned down to an extent that was perceived as betrayal by some (Nijar 2011a, 2011c). The international negotiation setting was to a large extent structured by materially determined interests. Core issues included the scope of the future Protocol (including its geographical, temporal and economic range) and compliance measures to support benefit sharing. Bridges could be built by introducing the concept of ‘utilization’ and the prospect of a global multilateral benefit-sharing mechanism, both of which may to some extent balance a rather narrow scope. Other contentious issues were the legal nature of the agreement, the standing of (publicly available) traditional knowledge, international access standards and the relationship with other agreements and instruments. What, then, are the main challenges regarding the Protocol’s future development and its potential for success? Generally, the NP contributes to enhanced multilateralism in ABS governance and to further specifying the CBD’s rights and responsibilities, rules and procedures. One challenge lies in the fact that, while addressing governments, it ultimately aims at governing the transnational behaviour of private agents. As a result, the effective implementation of the Protocol, probably more than other multilateral environmental agreements, depends on efforts in both provider and user countries. By the time the NP will enter into force, many users will have made efforts for evading the implementation of the present regime in individual provider countries by focusing on GR available in ex-situ collections or in areas not subject to national ABS legislation. On the side of provider countries, the Protocol requires the establishment or further elaboration of detailed domestic ABS legislation as a precondition for the obligation of user countries to comply with PIC requirements. Many developing countries will require substantial financial and technical support for the building of human, legal and institutional capacities from the international community. In the case of suspected misappropriation, especially local communities will face challenges in effectively seeking recourse and access to justice in the different legal systems of user countries (see also Oberthür et al. 2011; Tvedt in, this volume).

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On the side of user countries, there is considerable leeway in implementing user measures: While requiring effective measures, the Protocol does not specify concrete measures (such as the checking of certificates in relevant approval procedures) and often qualifies obligations by the insertion of ‘as appropriate’. In addition, even if environmental ministries in user countries consider a holistic implementation approach—designating a variety of checkpoints to examine the certificates of compliance in various existing administrative procedures—they are likely to face domestic challenges by other, partly more powerful ministries (e.g. economy, agriculture, health, research) and interests. Raising awareness and building capacity at the level of implementing authorities (checkpoints) are further challenges. Considering that it is not easy to recognize ex post whether GR were utilized in developing a product, it will be a tremendous effort to identify in which cases users are required to submit a certificate. This, however, is the precondition for successful control and an effective Protocol. Also, it remains to be seen how related international institutions will handle possible implications that arise from the NP. As of mid-2012, WIPO still works on an international treaty on IPR related to GR, TK and folklore. Within the WTO, developing countries have proposed to make the internationally recognized certificate of compliance an obligatory requirement for transfers of GR, including the granting of related patents, the development of mechanisms to ensure monitoring of TK associated with GR and the clarification of the status of publicly available TK. While the prospect of these proposals may not be very bright, those benefiting most from a weak implementation of the NP may use such other arenas to contain or even undermine the NP. Finally, the interpretation, further development, acceptance and ultimately the effectiveness of the Nagoya Protocol will be shaped by further negotiations as well as through its implementation. Negotiations on, among others, the global multilateral benefit-sharing mechanism and on procedures for state compliance are already ongoing, pending the entry into force of the Protocol. The Protocol itself furthermore foresees, in its Article 31, a review process to start 4 years after its entry into force. Therefore, the provisions of the Protocol will most likely be subject to further interpretation and development—with their meaning and effectiveness being not least shaped by the regional and local implementation of the Protocol.

Notes 1 See www.cbd.int/meetings/ (accessed 20 February 2013). 2 See www.iisd.ca/vol09/ (accessed 8 March 2013). 3 The ITPGR is also private/contract-law based. However, under the Treaty, a standard contract has been developed multilaterally. 4 In the broadest understanding, a ‘derivative’ is ‘the result of the utilization of a genetic resource through human activity’ (CBD 2008b; see also Schei and Tvedt 2010: 20–22). 5 That is, disease causing microorganisms. 6 Human GR had been excluded from the scope of the CBD in Decision II/11, but the issue recurred during the negotiations on the Nagoya Protocol.

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7 Another aspect of the debate on economic scope was the role of noncommercial research (see Biber-Klemm et al. in, this volume). 8 Occasionally the group was joined by Mexico, the Republic of Korea, Israel, Turkey, Andorra, Liechtenstein and San Marino. 9 This conflict was not least spurred by the lack of benefit sharing for Indonesia’s supply of avian influenza strains in 2006 to foreign laboratories from which vaccines were manufactured (and gene sequences were patented) (CBD Alliance 2010). 10 See also the G-77 Ministerial Declaration, http://www.g77.org/doc/Declaration2010. htm (accessed 9 October 2012).

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CBD (2007a) Report of the Meeting of the Group of Legal and Technical Experts on an Internationally Recognized Certificate of Origin/Source/Legal Provenance, UNEP/CBD/ WG-ABS/5/7, 20 February 2007, Montreal: Convention on Biological Diversity. CBD (2007b). Compilation of Submissions by Parties, Governments, Indigenous and Local Communities and Stakeholders on Concrete Options on Substantive Items on the Agenda of the Fifth and Sixth Meetings of the Ad Hoc Working Group on Access and Benefit Sharing, UN Doc. UNEP/CBD/WG-ABS/6/INF/3, 13 December 2007. CBD (2008a) Report of the Ad Hoc Open-Ended Working Group on Access and BenefitSharing on the Work of Its Sixth Meeting, UN Doc. UNEP/CBD/COP/9/6, 31 January 2008. CBD (2008b) Report of the Meeting of the Group of Legal and Technical Experts on Concepts, Terms, Working Definitions and Sectoral Approaches, UN Doc. UNEP/CBD/ WG-ABS/7/2, 12 December 2008. CBD (2009a) Report of the Meeting of the Group of Legal and Technical Experts on Compliance in the Context of the International Regime on Access and Benefit-Sharing, UN Doc. UNEP/CBD/WG-ABS/7/3, 10 February 2009. CBD (2009b) Report of the Meeting of the Group of Technical and Legal Experts on Traditional Knowledge Associated with Genetic Resources in the Context of the International Regime on Access and Benefit-Sharing, UN Doc. UNEP/CBD/WG-ABS/8/2, 15 July 2009. CBD (2010a) ‘Annex I—Revised Draft Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity’, in Report of the First Part of the Ninth Meeting of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing, UN Doc. UNEP/CBD/ WG-ABS/9/3, 26 April 2010. CBD (2010b) Report of the Third Part of the Ninth Meeting of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing, UN Doc. UNEP/CBD/COP/10/5/ Add.5, 17 October 2010. CBD (2011) Report of the Tenth Meeting of the Conference of Parties to the Convention on Biological Diversity, UN Doc. UNEP/CBD/COP/10/27, 20 January 2011. CBD Alliance (2010) ECO 30(2), Friday, 26 March 2010. Chambers, W.B. (2003) ‘Emerging International Rules on the Commercialization of Genetic Resources: The FAO International Plant Genetic Treaty and CBD Bonn Guidelines’, Journal of World Intellectual Property 6(2): 311–329. Chandler, M. (1993) ‘Biodiversity Convention: Selected Issues of Interest to the International Lawyer’, Colorado Journal of International Environmental Law and Policy 4(1): 141–175. Deere, C. (2011) The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries, Oxford, UK: Oxford University Press. Dutfield, G. (2000) Intellectual Property Rights, Trade and Biodiversity, London: International Union for the Conservation of Nature. ENB (2009) ‘ABS Highlights: Tuesday 10 November 2009’, Earth Negotiations Bulletin 9(484). ENB (2010a) ‘Summary of the Ninth Meeting of the Working Group on Access and Benefit-Sharing of the Convention on Biological Diversity: 22–28 March 2010’, Earth Negotiations Bulletin 9(503). ENB (2010b) ‘CBD COP 10 Highlights: Thursday 28 October 2010’, Earth Negotiations Bulletin 9(542).

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The negotiations of the Nagoya Protocol 57 ENB (2010c) ‘Summary of the Tenth Conference of the Parties to the Convention on Biological Diversity: 18–29 October 2010’, Earth Negotiations Bulletin 9(544). Ernst & Young (2011) Beyond Borders—Global Biotechnology Report 2011, http://www. ey.com/Publication/vwLUAssets/Global_Biotechnology_Report_2011/$FILE/Biotech_ BeyondBorders_2011.pdf (accessed 26 March 2013). Espicom (2012) The Outlook for Pharmaceuticals in Latin America, http://www.espicom. com/pharmaceuticals-outlook-latin-america (accessed 15 June 2013). Flitner, M. (1995) Sammler, Räuber und Gelehrte: Die politischen Interessen an pflanzengenetischen Ressourcen 1895–1995, Frankfurt/Main: Campus. Frankel, O.H and Bennett, E. (eds.) (1970) Genetic Resources in Plants: Their Exploration and Conservation, FAO-IBP Technical Conference on the Exploration, Utilization, and Conservation of Plant Genetic Resources (1967: Rome, Italy), Conference Proceedings Edition, Oxford, UK: Blackwell Scientific Publications. Frein, M. and Meyer, H. (2010) Das ABC des ABS-Regimes. Biopiraterie und die Verhandlungen auf dem Weg nach Nagoya, Bonn: Church Development Service (EED). Frein, M. and Meyer, H. (2011) The Nagoya Protocol on Access and Benefit Sharing (ABS) under the Convention on Biological Diversity (CBD), Berlin: World Wildlife Fund (WWF)/Church Development Service (EED). Frison, C. (2007) ‘Belgian Federal Survey: Public Infrastructures and ABS Regulations for Innovation in the Life Science Research: Access, Conservation and Use of Biological Diversity in the General Interest’, in U. Feit and F. Wolff (eds.) European Regional Meeting on an Internationally Recognized Certificate of Origin/Source/Legal Provenance, Report of the International Workshop hosted by the German Federal Agency for Nature Conservation in the Isle of Vilm, 24–29 October 2006, Bonn: Bundesamt für Naturschutz, 100–106. Görg, C. and Brand, U. (2006) ‘Contested Regimes in the International Political Economy: Global Regulation of Genetic Resources and the Internationalization of the State’, Global Environmental Politics 6(4): 101–123. Gupta, M.P. (2011) Access and Benefit Sharing: Viewpoints from Provider Countries, Center for Pharmacognostic Research on Panamanian Flora, College of Pharmacy, University of Panamá, http://www.icsu.org/freedom-responsibility/pdf-images/ABS_ WS_Presentation_Gupta.pdf (accessed 25 March 2013). Haila, Y. and Kouki, J. (1994) ‘The Phenomenon of Biodiversity in Conservation Biology’, Annales Zoologici Fennici 31(1): 5–18. Heins, V. (2001) Der Neue Transnationalismus. Nichtregierungsorganisationen und Firmen im Konflikt um die Rohstoffe der Biotechnologie. Frankfurt/New York: Campus. Hernandez, S. (2007) ‘Non-paper on Economic Valuation of the Use of Genetic Resources in France’, in U. Feit and F. Wolff (eds.) European Regional Meeting on an Internationally Recognized Certificate of Origin/Source/Legal Provenance. Report of the International Workshop hosted by the German Federal Agency for Nature Conservation in the Isle of Vilm, Germany, 24–29 October 2006, Bonn: Bundesamt für Naturschutz, 107–108. Just, D., Kornherr, N., Litzka, R. and Oppermann, L. (2010) ‘Odyssee des internationalen ABS-Regimes. Eine Analyse struktureller Probleme und asymmetrischer Kräfteverhältnisse’, in U. Brand (ed.) Globale Umweltpolitik und Internationalisierung des Staates—Biodiversitätspolitik aus strategisch-relationaler Perspektive, Münster: Westfälisches Dampfboot, 27–74. Kamau, E.C., Fedder, B. and Winter, G. (2010) ‘The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: What is New and What Are the Implications for

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Provider and User Countries and the Scientific Community?’, Law, Environment and Development Journal 6(3): 246–262. LMMC (2002a) Cancún Declaration of Like-Minded Megadiverse Countries, http://www. weltvertrag.org/e375/e719/e1045/CancunDeclarationonLike-MindedMegadiversity Countries_2002_ger.pdf (accessed 10 February 2013). LMMC (2002b) Cusco Declaration on Access to Genetic Resources, Traditional Knowledge and Intellectual Property Rights of Like-minded Megadiverse Countries, http://www. comunidadandina.org/ingles/documentos/documents/cusco29–11–02.htm (accessed 10 February 2013). LMMC (2005) New Delhi Ministerial Declaration on ABS, http://www.chmguatemala.gob. gt/Members/esolorzano/mis-documentos-2011/documentos/paises-megadiversos-lmmc/ New%20Delhi%20Ministerial%20Declaration%20on%20ABS.pdf (accessed 10 February 2013). McConnell, F. (1996) The Biodiversity Convention. A Negotiating History, London/The Hague/Boston: Kluwer Law International. McGraw, D.M. (2002) ‘The Story of the Biodiversity Convention: From Negotiation to Implementation’, in P.G. Le Prestre (ed.) Governing Global Biodiversity: The Evolution and Implementation of the Convention on Biological Diversity, Hampshire, UK: Ashgate Publishing Limited, 7–38. Mooney, P. (1983) ‘The Law of the Seed’, Development Dialogue 1983, 1–2, http://www. dhf.uu.se/publications/development-dialogue/the-law-of-the-seed-another-develop ment-and-plant-geneticresources/ (accessed 25 March 2013). Nijar, G.S. (2011a) The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: An Analysis, CEBLAW Brief, Kuala Lumpur: Centre of Excellence for Biodiversity Law (CEBLAW). Nijar, G.S. (2011b) The Nagoya ABS Protocol and Pathogens—Policy Brief No. 4, Geneva: South Centre. Nijar, G.S. (2011c) The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: Analysis and Implementation Options for Developing Countries. Research Papers 36, Geneva: South Centre. Oberthür, S., Gerstetter, C., Lucha, C., McGlade, K., Pożarowska, J. and Rabitz, F., (2011) Intellectual Property Rights on Genetic Resources and the Fight Against Poverty. Study for the European Parliament, Brussels: Directorate-General for External Policies of the Union. Pistorius, R.J. (1995) ‘Forum-Shopping: Issue Linkages in the Genetic Resources Issue’, in R. Bartlett, P. Kurian and M. Malik (eds.) International Organizations and Environmental Policy, Westport, CT: Greenwood Press, 209–221. Raustiala, K. and Victor, D.G. (2004) ‘The Regime Complex for Plant Genetic Resources’, International Organization 58(2): 277–309. Rosendal, K. (1999) ‘Biodiversity: Between Diverse International Arenas’, in H.O. Bergesen, G. Parmannand and Ø.B. Thommessen (eds.) Yearbook of International Co-operation on Environment and Development 1999/2000, London: Earthscan, 39–47. Rosendal, K. (2000) The Convention on Biological Diversity and Developing Countries, Dordrecht, the Netherlands: Kluwer Academic Publishers. Rosendal, K. (2006a) ‘The Convention on Biological Diversity: Tensions with the WTO TRIPS Agreement over Access to Genetic Resources and the Sharing of Benefits’, in S. Oberthür and T. Gehring (eds.) Institutional Interaction in Global Environmental Governance—Synergy and Conflict among International and EU Policies, Cambridge, MA: MIT Press, 79–102.

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The negotiations of the Nagoya Protocol 59 Rosendal, K. (2006b) ‘Regulating the Use of Genetic Resources—Between International Authorities’, European Environment 16(5): 265–277. Sampath, P.G. (2005) Regulating Bioprospecting: Institutions for Drug Research, Access, and Benefit-Sharing, Tokyo/New York/Paris: United Nations University Press. SCBD (2010a) ‘Access and Benefit-Sharing in Practice: Trends in Partnerships’, CBD Technical Series No. 38, Montreal: Secretariat of the Convention on Biological Diversity. SCBD (2010b) Global Biodiversity Outlook 3, Montreal: Secretariat of the Convention on Biological Diversity. Schei, P.J. and Tvedt, M.W. (2010) ‘Genetic Resources’ in the CBD: The Wording, the Past, the Present and the Future, FNI Report 4/2010, Lysaker, Norway: Fridtjof Nansen Institute. Suplie, J. (1995) Streit auf Noahs Arche: Zur Genese der Biodiversitäts-Konvention, Berlin: Wissenschaftszentrum Berlin. ten Kate, K. and Laird, S.A. (1999) The Commercial Use of Biodiversity: Access to Genetic Resources and Benefit-Sharing, London: Earthscan. TWN (2008) CBD Meeting Dominated by Talks on Access and Benefit Sharing Regime, Penang, Malaysia: Third World Network. TWN (2009) Hope for an Anti-Biopiracy Treaty in 2010, Issue No. 231/232 (Nov/Dec 2009), Penang, Malaysia: Third World Network. TWN (2010) Biodiversity Convention Adopts Landmark Decisions; Doubts Prevail on ABS Protocol, Penang, Malaysia: Third World Network. TWN (2011) The Road to an Anti-Piracy Agreement, Penang, Malaysia: Third World Network. VFA (2010) The Pharmaceutical Market, Association of Research-Based Pharmaceutical Companies (vfa), http://www.vfa.de/en/statistics/pharmaceuticalmarket/ (accessed 13 July 2012). Voges, M. and Biberhofer, P. (2010) ‘Neue Macht des Südens? Die Politisierung internationaler Biodiversitätspolitik durch die Like-Minded Group of Megadiverse Countries’, in U. Brand (ed.) Globale Umweltpolitik und Internationalisierung des Staates— Biodiversitätspolitik aus strategisch-relationaler Perspektive, Münster: Westfälisches Dampfboot, 105–154. Wilson, E.O. (ed.) (1988) Biodiversity, Washington, DC: National Academy Press. Winter, G. and Kamau, E.C. (2011) ‘Von Biopiraterie zu Austausch und Kooperation’, Archiv des Völkerrechts 49(4): 373–398. Wolff, F. (2004) ‘Legal Factors Driving Agrobiodiversity Loss’, Environmental Law Network International (ELNI) Review 1/2004: 1–11.

4

The role of non-state actors in the Nagoya Protocol negotiations

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Amandine Orsini

Introduction The Nagoya Protocol to the Convention on Biological Diversity (CBD) adopted in October 2010 is not only the most comprehensive international environmental agreement of recent years, but the negotiations on the Protocol have also featured the particularly active and constructive involvement of non-state actors (NSAs)— compared to recent climate negotiations, for instance (Fisher 2010). The ambition of this chapter is to delineate this involvement in more detail. The expression ‘non-state actors’ is used to refer to a broad range of international actors that are not governmental. Similar expressions are ‘major stakeholders’, used in UN parlance, or ‘private actors’. In particular, NSAs refer to business actors (being individual firms, business associations etc.), scientific stakeholders (individual experts, academia, research organizations etc.), non-profit organizations (more commonly referred to as non-governmental organizations— NGOs), indigenous and local communities (ILCs), farmers, workers, women and youth. Two lessons to be drawn from the abounding literature on NSAs in international politics are that their number is constantly rising and that they play a crucial role at all stages of international policy making, including for agenda setting, treaty negotiations and implementation of international norms (for a synthesis, see Josselin and Wallace 2001). This is even more the case for environmental issues that often raise scientific, economic and social debates. The access and benefit sharing (ABS) issue is no exception to this rule and generated intense discussions on a broad range of international topics such as intellectual property, trade, agriculture, traditional knowledge and biodiversity conservation. When acting on the international scene, NSAs can pursue two broad tracks. They can either follow intergovernmental processes and offer their assistance in dealing with them or they may prefer to elaborate their own private rules. Here, the focus is on the first track, as the intergovernmental agenda for ABS is progressing at great pace (see Wallbott et al., this volume). For influencing intergovernmental processes, NSAs can choose between two options. They can either try to be integrated within national delegations to follow the usual game of intergovernmental negotiations or register as observers. While government players are covered in

other chapters of this volume, the focus here is on NSAs as independent players in the negotiation game. Moreover, there are several signs of NSAs’ direct involvement in former international negotiations and in particular in the CBD negotiations. NSAs have been influential early, for instance in negotiating the scope of the CBD, advocating an extension from a conservation treaty to a convention dealing with the sustainable use of genetic resources (GR) (Bled 2010: 579–580). In particular, NGOs followed assiduously the negotiation of Article 15 of the CBD dealing with ABS yet had a rather low influence (Arts 1998: 189–196). Following the adoption of the Convention’s text, NSAs also actively influenced the elaboration of the Bonn Guidelines. In this case, opponents to strong ABS regulations— including business, scientists and NGOs—were influential in drafting the text but were subsequently defeated by a second coalition—also gathering several kinds of NSAs—that managed to foster the adoption of a mandate to negotiate an ABS regime in 2002 (Bled 2010: 582–583). Analysis of NSAs’ involvement in the subsequent intergovernmental ABS negotiations is rare or even nonexistent. This may be surprising since their presence during the negotiation meetings (Figure 4.1) has been rather high compared to other negotiations under the CBD, such as the negotiations on the Cartagena Protocol on biosafety (for a comparison, see Burgiel 2007: 77).

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Non-state actors in the Nagoya Protocol negotiations 61

Figure 4.1 Number of NSAs participating as observers in the ABS negotiation process Source: Information from the CBD Secretariat. Note: “WGABS-2” etc. denotes the meetings of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing (WGABS) that negotiated the Nagoya Protocol; see also Wallbott et al., this volume.

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62 Amandine Orsini The CBD negotiating process is very dynamic and open to the participation of observers. Accreditation is granted by the CBD Secretariat according to precise but flexible guidelines. It the gives right to participate in the plenary sessions and contact groups of every working session unless one third of the parties object to the presence of observers (a rule that has never been applied in the ABS case). While participating in negotiating sessions, NSAs can make statements after all interested parties have expressed their views and can propose negotiating text as long as they are supported by at least one government. Expert groups are the only negotiating format for which limits apply for the number of NSAs allowed to attend, but similar limits exist for national delegates. Also, like in every negotiating process, the very last sessions tended to be closed to observers. This was the case for the third meeting of the ninth session of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing (WGABS) (WGABS-9ter) in October 2010 and to some extent for the second meeting of the ninth session (WGABS-9bis) in July 2010, but again this limitation applied to many national delegations as well. Overall, the ABS negotiations were rather open to NSAs, in particular thanks to the co-chairs’ very inclusive approach (see also Wallbott et al., this volume). Overall, NSAs’ involvement in the ABS negotiations has been high. But many questions remain regarding this involvement. To address them, the next section first presents the analytical framework that serves as the basis for the ensuing empirical analysis. This is followed by a discussion of the characteristics of the NSAs that followed the Nagoya Protocol negotiations and an investigation of their respective positions. Subsequently, the strategies followed by these NSAs are analysed before their overall influence is investigated. The conclusions summarize the results obtained and discuss the potential role of NSAs in the implementation of the agreement. The analysis is based on several methodological tools. Quantitative research tools, such as statistics on the lists of participants to the negotiations of the Nagoya Protocol, help identify the key NSAs. Qualitative research tools, such as process tracing and exemplification based on archive consultation, interviews, field work (conducted from 2006 until 2008 at the CBD) and the available scientific and grey literature (in particular the CBD documents and the Earth Negotiations Bulletin) help to specify the positions and activities of the identified NSAs.

Analytical framework As it represents a crucial question, many studies have already focused on the influence of NSAs on environmental negotiations. In particular, they help us clarify who NSAs are, what they advocate, how they try to exert influence and with which results. Who NSAs are obviously depends on to which category they belong (NGOs, business, research etc.). But what often matters most is the resources they have at their disposal. In particular, NSAs can have material, organizational or discursive resources. Material resources are defined with respect to financial and human capacities but also as access to technology, control of rare goods or role in the

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Non-state actors in the Nagoya Protocol negotiations 63 economy. In that sense, material resources are sometimes referred to as ‘economic power’ (Boström and Tamm Hallström 2010), designating the link NSAs have with national economies in terms of raw materials or employment. Economic power is often associated with business actors (Betsill and Corell 2007). Yet several transnational NGOs also have great material resources: For instance, in 2010, Greenpeace International collected more than US$226 million in grants and donations (Greenpeace International 2010: 27). Organizational resources are defined as the capacities to network with others and refer to information on the political process. It is often a ‘must’ to network with peers (NGOs with NGOs, business with business etc.) but also with other categories of NSAs (Boström and Tamm Hallström 2010) and with policy makers. This helps developing public relations with political targets (Shawki 2011: 104). In the policy network approach, several studies have pointed to the privileged access of business to policymakers (Bernhagen 2008), while NGOs are particularly known for their capacities to network together (Botetzagias et al. 2010). In any case, organizations opt for networking since in the long run it can offer them a number of potential benefits, such as increased access, efficiency, visibility, credibility or legitimacy, reduced isolation as well as solidarity and support (Botetzagias et al. 2010). However, in practice, networks also often present some drawbacks, and power relations or problems of equal participation can undermine their efficiency (Doherty 2006; Dombrowski 2010). This helps explain why networks are often created around precise tasks and do not replace individual lobbying (Kautto 2009; Orsini 2011). Under these circumstances, maintaining access to decision makers and politicians might be a safer organizational strategy. Organizational strength is also about identifying key negotiation meetings—where to meet and network—and identifying key targets—who to network with. Discursive resources refer to the ability to master information and expertise (i.e. grounded information based on experience) and to frame debates regarding the policy question discussed (Boström and Tamm Hallström 2010). They can take the shape of research- or expertise-based reports and papers. Discursive resources are known as the prime ‘weapon’ of advisory NGOs (Gulbrandsen and Andresen 2004; see also Raustiala 1997 and Shawki 2011). However, business has also considerable discursive strength (Bernhagen 2008). The technical information on the environmental issues discussed that firms frequently master gives them considerable leverage. Since discursive strength is not just about information as a whole but mostly about ‘unique’ information or ‘alternative’ information (Boström and Tamm Hallström 2010), business benefits from information asymmetry on a great number of issues. Information per se is not sufficient for discursive power. To have power, NSAs have to be able to frame the ongoing debates around such information and to provide for analysis, advice and policy options. Discursive resources are also tightly linked to credibility, resting both on the capabilities to propose consensus and on the reliability of information. It seems that actors are found to be trustworthy to different degrees, with NGOs scoring high while states and corporations are seen as strategic users of truth (Boström

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64 Amandine Orsini and Tamm Hallström 2010). In order to understand who has been influential, one should carefully measure each NSA’s resources. A further crucial point is to understand what NSAs advocated or which political positions they took. In this regard, there is an increasing recognition that NSAs can act on common bases despite their diverse origins and natures. While business and NGOs had initially been juxtaposed in the literature according to their for-profit/not-for-profit characteristics, this dichotomy has been progressively abandoned. In 2002, Edwards already noted that ‘most NGOs are still confused about their identity. They have always been both market-based actors, providing services at a lower price than the commercial sector, and social actors, representing particular non-market values and interests in the political process’ (Berry and Gabay 2009: 345). It is now widely recognized that the so-called ‘NGO community’ encompasses a broad diversity of viewpoints (see among others Alcock 2008; Böstrom and Tamm Hallström 2010). Similarly, several business actors may support environmental regulation to secure their market or to obtain a competitive advantage. Overall, their position is likely to depend on their sector, their relation to technology and their level of internationalization (Falkner 2008). The ‘business community’ is therefore fragmented (Kautto 2009; Tienhaara et al. 2012). As a consequence, researchers have recognized the broad variety of NSAs’ political positions by placing them on a ‘green to grey’ continuum (Vormedal 2008). Once political positions are established, NSAs will also have to determine their strategies to pursue their interests. Four kinds of political strategies have been identified earlier in the literature on NSAs’ lobbying, in particular based on environmental NGOs’ strategies during the negotiations of the Cartagena Protocol on biosafety (Arts and Mack 2003). Two strategies are insider ones—that is, they imply a contact between the influencer and the ‘influencees’. These are lobbying, defined as informal influence on delegates, and advocating, the formal matching of lobbying. For example, lobbying can involve bribing, threatening, and informal contacts, while advocating can be done through distributing letters, working documents, statements, draft texts or submissions in order to have one’s voice heard. Two other strategies are outsider ones. Again, outsider strategies can be divided according to their formal or informal character. Informal outsider strategies include exercising public pressure, organizing protests and naming and shaming campaigns. Formal outsider strategies include promotion: distributing to all participants and observers relevant reports, books, awareness-raising materials, organizing side events and so forth. Moreover, where intergovernmental negotiations take place in the context of a larger regime complex, as has been the case with respect to the Nagoya Protocol (Morin and Orsini 2011; Oberthür and Pożarowska, this volume), NSAs may be able to use strategically different negotiation fora to advance their agenda. For instance, indigenous organizations could urge the CBD to better recognize their rights by mentioning progress achieved at the WIPO negotiations on the same issue. This fifth strategy can be labelled a ‘multi-fora strategy’. Regarding the impact of NSAs (the final ‘so what’ question), Betsill and Corell have proposed an extended framework to assess the impact of NSAs on

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Non-state actors in the Nagoya Protocol negotiations 65 environmental negotiations (Betsill and Corell 2007). In particular, this framework relates influence to participation and distinguishes influence on the negotiating process (i.e. on issue framing, agenda setting and the position of key actors) from influence on the negotiating outcome (including influence on the substantial issues of the adopted negotiating text). Moreover, Betsill and Corell argue that previous work has often confused correlation between NSA activities and negotiation outcome. Resources and strategies deployed do not necessarily lead to influence. Resources, strategies and goal attainment may at best be indicators of influence but do not prove such influence. Producing evidence for such influence requires careful process tracing so as to ‘assess causality by recording each element of the causal chain’ (Zürn and George and Bennett, quoted in Betsill and Corell 2007: 30). Others have shared this concern for empirical research, nuance and counter-factual reasoning, as ‘any quantitative or qualitative determination of political influence remains after all an informed guess’ (Arts 1998: 74). Given these requirements, a comprehensive assessment of NSA influence and impact on the Nagoya Protocol is beyond the scope of this chapter. The most that is on offer here is the investigation of some broad correlations between the level of NSA involvement and the agreed Protocol text. The results have to be considered carefully and should not be taken as a claim regarding actual NSA influence.

NSAs in the Nagoya Protocol negotiations: A small but diverse core group Few NSAs have been able to engage in the ABS debate continuously over a longer period of time, with most of them only following one or two ABS working group meetings (see Figure 4.2). As we contend that influence is correlated to participation, the subsequent analysis focuses on the 12 NSAs most present in the negotiations. Table 4.1 contains the names of and further information about the positions of these organizations (the International Indigenous Forum on Biodiversity is not part of the group of 12 most present organizations; see below in this section). Moreover, Tebtebba is appearing twice; see also below in this and the following section). These NSAs have followed at least 8 of the 10 WGABS meetings. Several elements confirm that material and organizational resources are prerequisites for long-term participation in ABS negotiations. Firstly, out of these 12 NSAs, 3 have their headquarters in developing countries, while 9 are based in Europe or in North America. This clear discrepancy between Northern and Southern interests can be explained by the lack of resources of developing countries’ NSAs, in particular material and organizational resources. Furthermore, some regions are not represented at all, such as Latin America. Whereas it needs to be taken into account that some of the identified NSAs are international in scope, this result is still surprising considering that Latin America is a very biodiversity-rich region. Secondly, three of these NSAs are business organizations, three are broad-scope NGOs that seek (sustainable) development as an objective, three are indigenous

66 Amandine Orsini 350

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Number of NSAs

300 250 200 150 100 50 0

1

2

3

4

5

6

7

8

9

10

Number of WGABS meetings attended

Figure 4.2 Number of WGABS meetings attended by each NSA registered as observer Source: Information from the CBD Secretariat.

organizations and three represent ILCs. These categories of stakeholders involved are the ones that are directly concerned by ABS agreements in the field (in particular business and indigenous peoples). Surprisingly, half of the key NSAs are close to indigenous peoples’ interests. The CBD, relying on its Article 8( j) that addresses ILCs and the knowledge they hold, has a special fund to support the participation of ILCs. However, only three out of the six NSAs working on indigenous issues have direct links with indigenous groups, whereas the other three mostly gather Northern researchers interested in indigenous issues. Again, this finding confirms the importance of material and organizational resources to participate directly in the negotiating process. Thirdly, the scope of membership within these 12 NSAs varies, being national, regional but also international. Yet most of them have organizations, not individuals, as members, confirming the importance of resources for long-term involvement. Moreover, the national organizations represented actually have strong links with their respective governments. For instance, Berne Declaration and the National Aboriginal Health Organization (NAHO) are heavily financed by the Swiss and Canadian governments, respectively. Regarding expertise, none of the identified NSAs has a mission specifically related to ABS. ABS is a recent and highly technical issue that requires established expertise and experience. It is also an issue that cuts across many other topics and interacts with several NSAs’ usual campaigns, including environment, trade, development, human rights or intellectual property. As a result, only the NSAs that had already established experience in one of these fields have been able to get involved in the long term. Finally, one key element is that most of these organizations are involved in common networks with different levels of institutionalization. On a very formal basis, Tebtebba is actually a member of the Third World Network (explaining why

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Non-state actors in the Nagoya Protocol negotiations 67 it appears in the indigenous peoples’ group and in the NGO group; see below in this and the following section), and both organizations consequently work together and adopt very close positions. Less institutionalized (but with a strong political basis), the International Indigenous Forum on Biodiversity (IIFB) has, since the third Conference of the Parties to the CBD in November 1996, gathered many organizations close to indigenous interests, including all those included in our selection of 12. The IIFB has a website, makes statements in the name of its members and organizes side events; however, it has no legal personality and is not an NSA per se (for instance, it has not registered for meetings of the WGABS). At a more informal level than the IIFB stands the CBD Alliance, a network which, since the fifth meeting of the WGABS in October 2007, has gathered a number of NGOs and indigenous groups that are following the CBD negotiations. Berne Declaration, Third World Network and therefore Tebtebba are all part of this network. The CBD alliance does not possess a legal personality and does not have a leading political role, but it is used by its members as a platform for information exchange and regularly publishes the ECO Newsletter that presents summaries, reflections and positions on the CBD negotiations. Finally, the International Chamber of Commerce (ICC) has put a third informal network among some of the identified NSAs in place since the fourth meeting of the WGABS in 2006. It consists in the organization of ‘industry group’ meetings, gathering all representatives from the private sector at the beginning of each negotiation session. The initiative mainly serves as an information platform and ensures dialogue between the different business representatives engaged in ABS (Orsini 2011). Overall, most of these networks are informal so that participation in common actions is left to the discretion of each NSA. Thus, a broad variety but a small number of NSAs were engaged in the negotiations. Importantly, the main NGOs, business actors and indigenous organizations came from developed countries, were organization based and were already experienced groups, showing that material, organizational and discursive resources are important prerequisites to engage in the negotiations. Also, every identified NSA is part of at least one network, suggesting that the identified NSAs had to share their resources to improve their chances of impact.

NSAs’ positions in the ABS negotiations: Four directions The analysis of the positions of the main identified NSAs in the ABS negotiations is drawn from a systematic screening of CBD documents, calendars of side events, NSAs’ websites, reports of the Earth Negotiations Bulletin covering the whole negotiation period of the Nagoya Protocol and some archive material collected during fieldwork. Table 4.1 presents the overall positions and main claims of the 12 NSAs identified. The positions of the NSAs regarding the ‘core issues’ as identified by Wallbott and colleagues (this volume), such as legal nature, scope, international access standards, compliance/user measures and the relationship with other international agreements, are presented here. Moreover, a discussion on a sixth important item that was dealt with by most NSAs, the rights of ILCs, is included in this section.

Binding

Tebtebba TWN Berne Declaration

CISDL

ABS regime supporters

ABS system supporter

Not needed

Note: ‘—’indicates that no element was found on this core issue.

—

Broad scope

—

—

—

—

—

ILCs are main beneficiaries of ABS measures

Participation of ILCs and property for ILCs

Need clear definition of ILCs and traditional knowledge before any decision

Other agreements Rights of ILCs

Access to patented — material Strong users responsibility — Integrate ABS in other policy fields

—

No certificate Patents

Access standards User measures

Broad scope PIC; customary law; ownership of traditional knowledge

No regime

Source: Own assessment of various sources (see main text).

—

Binding

BIO No regime CropLife International ICC

Legal nature Scope

ILC supporters Tulalip tribes Tebtebba IPCB IIN NAHO RAIPON IIFB

Opponents

Overall position NSAs

Table 4.1 Positions of the main NSAs regarding the core issues of the Nagoya Protocol

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Non-state actors in the Nagoya Protocol negotiations 69 As ABS concerns a great diversity of stakeholders, the ‘green-grey’ continuum mentioned above is of high relevance. In particular, NSAs can be gathered into four groups, from the more defensive to the more proactive ones (see Table 4.1). Firstly, three organizations have been strong opponents to a binding and comprehensive protocol on ABS: the ICC, the Biotechnology Industry Organization (BIO) and CropLife International. The ICC, one of the broadest global industry coalitions (Orsini 2011), has often been vocal at the beginning of negotiating sessions (seven oral interventions were found) to indicate that industry was interested in the debates. However, the ICC, in all its interventions and submissions (six submissions to the CBD secretariat were found), kept a rather vague position on a number of points, questioning the utility of an international ABS regime as a main strategy and raising concerns about any new issue that was arising during the negotiations. For instance, when expressing its views on the issue of traditional knowledge protection, the ICC raised several questions to the parties, asking for a definition of traditional knowledge, an efficient way of tracing it and the rationale for considering it under special intellectual property rights (ICC 2006). At the fifth meeting of the WGABS in October 2007, the ICC was also vocal against any disclosure requirement/certificate because it would be too costly. BIO, an American industry coalition dedicated to biotechnology, has also always forcefully opposed any progress during the negotiations. BIO has advocated voluntary guidelines, not a binding protocol, to tackle the ABS issue, underlining the importance of the BIO Guidelines adopted by its members. It also questioned the involvement of the biotechnology industry in cases of biopiracy (during side events at the third and fourth meeting of the WGABS in 2005 and 2006) and argued that patents are the only way to generate benefits from GR (BIO 2007). Finally, CropLife International, a coalition of seed companies using biotechnology, has been more discrete in the negotiations but has defended the same views as the other business coalitions. Notably, BIO and CropLife have organized or co-sponsored two side events together, and during its only oral intervention made at the sixth meeting of the WGABS in January 2008, CropLife International stated that the regime should support national implementation based on the Bonn Guidelines with a view to increasing global biotrade. A second group gathers the organizations that fight for the rights of ILCs, including the Indigenous Information Network (IIN), Tebtebba (also known as the Indigenous Peoples’ International Centre for Policy Research and Education), the Indigenous Peoples Council on Biocolonialism (IPCB), the National Aboriginal Health Organization (NAHO), the Russian Association of Indigenous People of the North (RAIPON) and the Tulalip Tribes (a federally recognized Indian tribe located on the Tulalip Reservation in Washington State). For this group of organizations, the IIFB is clearly the political voice, while the individual organizations of the network are acting as its operational arms. The IIFB organized two side events during the negotiations and made at least 29 recorded interventions during the meetings of the WGABS. Therefore, IIFB has been the most vocal NSA in the negotiations, the second most vocal being the ICC with seven interventions. Moreover, the IIFB submitted a text on the participation of indigenous peoples

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70 Amandine Orsini at the eighth Conference of the Parties, mentioned during the sixth meeting of the WGABS (2008), and a text on the rights of ILCs and compliance with prior informed consent (PIC) at the same meeting. During the eighth meeting of the WGABS in November 2009, the IIFB submitted operative text on capacity building, traditional knowledge and the nature of the regime (during contact group meetings). Overall, IIFB fights for the rights of ILCs in terms of participation in policy processes and land property. It is a strong advocate of the UN Declaration on the Rights of Indigenous Peoples and noted that the recognition and protection of indigenous rights should be a cross-cutting issue in the negotiated text (rather than a separate element). Regarding ABS, it claimed the PIC of indigenous peoples and the recognition of customary law and ownership of traditional knowledge. On the issue of indigenous rights and traditional knowledge, IIFB supported a strong (binding) and broad international regime covering transboundary or exsitu resources and shared traditional knowledge. In parallel to these political actions, Tebtebba, Tulalip, IPCB and RAIPON have individually participated in international workshops and expert groups on traditional knowledge. NAHO has also participated in awareness-raising actions, diffusing a document on the CBD negotiating process. While the actions of these organizations have been more limited than the ones of IIFB, they have advocated the same position. The third group gathers the supporters of a strong ABS international regime in every aspect and therefore beyond the mere recognition of indigenous rights. Three organizations have been supporters of a binding and comprehensive Protocol: Berne Declaration (a Swiss non-governmental organization promoting more equitable, sustainable and democratic North-South relations), the Third World Network (TWN) and, as a member of TWN, Tebtebba. Regarding scope, they asked that GR and their utilization be covered by the international regime (Berne Declaration et al. 2005a) and supported an extended temporal scope. Furthermore, these organizations have emphasized the need to establish strong international mechanisms including user measures to impede misappropriation. They have also been particularly active in asking for affordable access to patented GR (Berne Declaration et al. 2005b). These organizations have also forcefully recalled that first of all, ILCs needed to benefit from ABS regulations. For instance, the Berne Declaration has extensively publicized the case of the cactus Hoodia as an illustration of the misappropriation of GR taking place in developing countries. Indeed, while Hoodia is now widely commercialized and distributed as an appetite suppressant, the San communities, who discovered these interesting properties of the plant in the first place, were left without any ABS agreement. Regarding compliance, these organizations have asked for strong user responsibility (Berne Declaration and Biowatch 2005), with the possibility to use a system of disclosure of origin in patent applications, to develop mechanisms to prevent the sale of biopiracy products or to take already-sold biopiracy products out of the market and to fine their producers (Berne Declaration et al. 2009). Finally, the Center for International Sustainable Development Law (CISDL) represents a category on its own. The CISDL has been active in diffusing information on existing ABS laws, in writing reports about current national, international

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Non-state actors in the Nagoya Protocol negotiations 71 and non-state initiatives on ABS and in raising awareness among delegations— in particular African delegations—concerning the CBD negotiations. However, CISDL has not focused so much on the content of the CBD international regime but has rather advocated the integration of ABS provisions in trade agreements: ‘this sort of recognition of ABS issues in international trade agreements is what is required if sustainable development is going to be put into practice’ (CISDL 2003: 13). Moreover, it is the only organization that fought for environmental provisions. During the eighth meeting of the WGABS in November 2009, it organized a side event to show that ABS should also be integrated in international agreements on forests. Finally, with respect to other groups, the CISDL is closer to the UN organizations such as the United Nations Environment Programme and to the CBD secretariat and supported a more systemic vision of ABS across all these institutions. The positions held by NSAs have been varied, also due to the high number of sub-issues addressed in the negotiations. In particular, most NSAs have focused on specific negotiated points—intellectual property, indigenous rights or the relation to other agreements—to the detriment of a broader political agenda for ABS. Another striking feature is the compartmentalization of positions according to the categories of actors: Business actors, for instance, had a very different position than NGOs. Indeed, the most involved NSAs advocated strong, radical views. Differences of positions are also visible between the group of NGOs identified and the indigenous organizations. Both categories followed different core issues and, apart from Tebtebba, never produced common submissions. Finally, it appears that intellectual property rights and indigenous rights have had particularly strong advocacy coalitions, due to strong economic and developmental interests, while support for environmental conservation remained weak, with only the CISDL bridging ABS with environmental concerns. Other studies have demonstrated a similar trend in biodiversity governance (Rosendal 2006: 442–443), which is likely to be detrimental to the environmental objectives of the CBD.

NSAs’ strategies: Privileging formal channels with advocacy and promotion In the analytical framework, five strategies that NSAs can mobilize in order to influence the negotiations have been identified: lobbying, advocating, exercising public pressure, undertaking promotion activities and exercising multi-fora strategies. Based on the screening of available documents, on the fieldwork and interviews conducted and on archive material, four interesting features arise regarding the main strategies used by NSAs during the negotiations. Firstly, NSAs pursued few informal strategies and in particular, as far as the author knows, no public pressure strategies. This can be explained by the low degree of awareness of the ABS issue by government officials but also by the wider public. Lobbying was the only informal strategy mobilized, which was mainly directed at agenda setting. In particular, the TWN has been very efficient at launching the negotiation process, by proposing—through an informal partnership with

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72 Amandine Orsini the African group and the Malaysian delegation (one member of the TWN then became Malaysian delegate)—the first draft of the protocol at the fourth meeting of the WGABS in 2006, the so-called ‘African Group proposal’ (see Wallbott, this volume). Opponents to the adoption of such a binding protocol, in particular BIO and ICC, were very surprised by the draft text and tried to get it off the table by counter-lobbying target delegations during the same meeting (own observation). The African text was turned into an annex, but business failed in its attempt to delay substantial negotiations on the Nagoya Protocol (see also Wallbott and Wallbott et al., this volume). Secondly, advocacy has been the main strategy used by NSAs, which tried to cooperate with national delegations, privileging insider strategies. Business and ILCs have favoured oral interventions (as mentioned, 29 by IIFB and 7 by ICC) and CBD submissions (six by ICC, four by IIFB and three by BIO) to demonstrate their will to cooperate with delegations. Business and NGOs have also circulated position papers during the negotiations (ICC six, Berne Declaration four, TWN three and Tebtebba two). NGOs may have favoured these types of documents (and not oral interventions or CBD submissions) in order to circulate their ideas to a wider audience (see also discussion on promotion). To the contrary, no position papers of the IIFB could be identified, likely due to its status as an ad hoc coalition. Overall, indigenous peoples have been very successful at obtaining endorsements of their drafts by national delegations. IIFB’s proposals were, for example, endorsed by Norway and Haiti during the sixth meeting of the WGABS in 2008; by Norway, Haiti and the African Group during the eighth meeting of the WGABS in 2009; and by the Philippines and Australia, among others, at the resumed ninth meeting of the WGABS in July 2010. Industry was less successful at having its positions heard by governments, even though Japan supported an ICC proposal on the need to conduct a study regarding the costs related to an international certificate at the fifth meeting of the WGABS in 2007, while Canada endorsed a BIO proposal on the protection of confidential information at the eighth meeting of the WGABS in 2009. This can be explained by the fact that business, being opposed to a binding international agreement, formulated fewer text proposals than other NSAs. Thirdly, promotion has been an important strategy as well, in particular for business and to a lesser extent for NGOs. The ICC organized six, BIO three and CropLife International two side events during the whole negotiation period (bringing the total for industry to eleven). Moreover, both ICC and BIO produced position papers (ICC seven and BIO one) that were circulated to delegates but also to a wider public. Business thus wanted to communicate widely its positions, reaching a broader audience. NGOs also conducted promotion activities, not so much by organizing side events (one each by TWN and Berne Declaration but four by CISDL) but by circulating position papers (three by TWN, four by Berne Declaration). In particular, Berne Declaration circulated some ABS case studies with examples of the misappropriation of GR. NGOs also actively distributed the ECO Newsletter. Finally, indigenous people also organized side events (two by IIFB) in order to present their claims to a wider public and probably to reach delegates and stakeholders that are not usually confronted with indigenous rights issues.

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Non-state actors in the Nagoya Protocol negotiations 73 Fourthly, all of the mentioned NSAs have also pursued their interests in other institutional settings than the CBD. For instance, the TWN organized side events on intellectual property issues at the CBD, the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO). The Tulalip made a submission to WIPO on the protection of traditional knowledge and Tebtebba to WTO on the importance of customary law (of ILCs). Industry has warned the negotiators in both these arenas (WIPO and WTO) that a strong Nagoya Protocol could represent a threat to trade and innovation. Finally, the TWN has also informed the members of the World Health Organization (WHO) of the usefulness of the CBD agreement for ABS regarding pathogens and vaccines. In addition to common obstacles, this last point makes the evaluation of influence even more complicated, as one should look at several negotiating processes to obtain a full picture. Overall, the influence of NSAs on the CBD negotiation process is hard to evaluate, but general correlations between some of the points they fought for and the adopted text can be identified.

An agreement more favourable to ILCs and NGOs than to business While testimonies have to be considered with caution, NSAs have expressed views demonstrating that indigenous groups were rather satisfied by the agreement, while industry was more cautious. Tulalip representative Preston Hardison announced that the protocol was ‘a fairly big win and is pretty good overall’. Gurdial Singh Nijar, former TWN representative, qualified the Nagoya Protocol as ‘a magnificent treaty’, noting that it was a milestone in history (Rÿser 2010). In contrast, industry has been rather discreet after the adoption of the agreement, noting that ‘if implemented appropriately, it can provide a solid framework for CBD parties and businesses to act as partners’ (ICC 2010b, author’s emphasis). While a full assessment requires more elements than the ones gathered here, it is still possible to discuss the accuracy of these claims and, in particular, the apparent satisfaction of indigenous groups and NGOs compared to the cautious stance of business with regard to the adopted text. Such a discussion can be done regarding the format of the agreement and regarding its content. With regard to the format, it appears that business interests have lost their battle against any additional, binding international agreement on ABS. While they were advocating applying the voluntary Bonn Guidelines (see section on ‘NSAs’ positions in the ABS negotiations’ above), the Nagoya Protocol creates some legal constraints on its future parties. At the same time, most provisions of the Protocol are subject to national legislation and therefore do not have an international scope per se (which has to be kept in mind when considering the content of the text, as developed below in this section). Indeed, business actors might benefit from the interpretation that national governments and in particular developed countries will have of the text. Yet the final agreement is international and binding and—judging from the experience with the twin sister of the Nagoya Protocol, the 2000 Cartagena Protocol—it is likely that the Nagoya Protocol will have a strong normative impact on ABS governance and will raise international

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74 Amandine Orsini concern for ABS ( just as the Cartagena Protocol did for genetically modified organisms). As regards the content of the Protocol, some general parallels can be drawn between NSAs’ involvement and their successes or failures. Before doing so, it is important to note that the vagueness of the adopted text complicates any assessment of its content but is also a sign of the antagonistic forces that shaped the Nagoya Protocol as adopted. It is nevertheless possible to correlate the relatively strong representation of ILCs’ interests in the Nagoya Protocol negotiations with the relatively successful outcome for them regarding the formulation of their rights. Article 6.2 on access mentions the need to obtain PIC by ILCs. The same provisions are contained in Article 7 for access to traditional knowledge. Regarding benefit sharing, Article 7.2 mentions the need to share benefits with ILCs. Finally, Article 12 suggests several measures to be implemented by providers in order to improve awareness and negotiating conditions of ILCs regarding ABS. However, all these articles are, as mentioned earlier, subject to domestic legislation, and some core elements of the text do not extend to traditional knowledge (Art. 17). Even though admittedly rather hortatory in character, the preamble of the Protocol contains further general considerations in referring to the need to identify the ‘rightful holders’ of the traditional knowledge associated with GR and mentions the UN Declaration on the Rights of Indigenous Peoples as well as existing rights of ILCs (as advocated by the IIFB; see section on ‘NSAs’ positions in the ABS negotiations’ above). Furthermore, there seems to be a correlation between the lack of environmental interest groups in the negotiations on the Nagoya Protocol and the absence of concrete commitments for biodiversity conservation (see also Oberthür and Rosendal, this volume). As mentioned previously, the CISDL was the only organization to have the environmental dimension of ABS on its agenda. Moreover, the environment was only one of the many dimensions it was fighting for (together with development, equitable trade or ILCs’ rights). Finally, it is particularly difficult to assess the results obtained by industry in terms of the content of the text, especially because industry was mostly opposed to any Nagoya Protocol. Just prior to the final negotiations on the Protocol, the ICC expressed concerns about the draft Protocol text in October 2010. In particular, the ICC asked for the deletion of several provisions, including on disclosure or checkpoint requirements for patents and other intellectual property rights, on the retroactive effect and on the relationship of the agreement with other existing treaties (advocating a subordination of the Nagoya Protocol under existing international agreements; ICC 2010a). Some of these requests of industry are reflected in the Nagoya Protocol (no mention of patents or intellectual property rights), but not all are (the retroactive effect and the hierarchy issue remain unclarified). Moreover, the Protocol covers a relatively broad scope (including derivatives; see Tvedt, this volume), which, as indicated earlier, was strongly opposed by industry. Finally, compliance mechanisms, including a certificate, have been adopted. Article 17 requires the issuance of an internationally recognized certificate of compliance that will travel with the GR as a passport. While such a certificate shall

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Non-state actors in the Nagoya Protocol negotiations 75 be established ‘without prejudice to the protection of confidential information’ (a provision most likely proposed by industry) and is non-mandatory, it opens the possibility for developing countries to adopt national legislation linking the certificate to the patent system or to pursue a hardening of this requirement by linking it to patenting at the WTO and WIPO (Oberthür and Pożarowska, this volume), which goes against the interests of BIO, the ICC and CropLife. In contrast, the broad scope of the adopted agreement and the proposed compliance mechanisms play in favour of NGOs (Berne Declaration and the TWN). However, as indicated before, the eventual meaning of the Protocol will be shaped to a large degree in the future implementation, in particular as many provisions of the Protocol are vague and/or subject to national legislation. NSAs have different kinds of relationships with national governments that will be mainly in charge of implementation. Industry members may frequently have strong links with governmental representatives, not least because business controls much of the expertise and information regarding the use of GR at the national level. In contrast, the national level has traditionally been detrimental to the recognition of the rights of ILCs.

Conclusion This chapter undertook to assess the resources, positions, strategies and, to a limited extent, impact of the main NSAs that participated in the negotiations on the Nagoya Protocol. The study demonstrates imbalances in representation by these NSAs, with most of them coming from developed countries and no group focusing particularly on environmental issues. It also found that material, organizational and discursive resources were crucial prerequisites in order for NSAs to participate in the long term. NSAs were therefore often part of collaborative informal networks in which they could join their forces when needed. Overall, the positions of the stakeholders involved have been varied, with most of them focusing on specific negotiating points that were of particular interest to them and their general objectives. There has been a clear compartmentalization of the positions of NSAs according to different categories. The analysis also showed that the ABS negotiations have been characterized mostly by formal and insider strategies, such as advocacy. The available evidence suggests that lobbying was practiced mostly for agenda setting. Promotion, as a formal-outsider strategy, was also used in an attempt to mobilize a wider audience, and multi-fora strategies were pursued by several NSAs. In the end, the negotiating outcome suggests that proponents of a binding and comprehensive Protocol may have been more skilled at influencing the process than the opponents. ILCs have been particularly vocal in the negotiations. Yet opponents have had substantial impact on the negotiations, including by ensuring that much of the agreement is subject to national legislation. The tendencies observed at the international level are likely to be reversed at the national level—business having significantly more influence on implementation than NGOs and ILCs. As a reaction to a future weakening of ABS provisions on ILCs’ rights, indigenous groups are in the process of developing roots in a

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76 Amandine Orsini high number of fertile grounds, being close to numerous local claims. Implementation is where the executive arms of the IIFB will be particularly active. For instance, RAIPON, like most indigenous organizations, follows implementation issues closely, conducting awareness-raising and capacity-building activities and advocating strong compliance (RAIPON 2011). NAHO, a Canadian group, also organizes enforcement workshops on ABS. While provisions on ILCs’ rights might not be countered by business, which so far has demonstrated a low interest in this issue, ILCs’ support for strong ABS legislation, taken over by NGOs, will face industry’s resistance. The recent discussions between the ICC and the European Commission on the ABS agreement illustrate the mobilization of business at the implementation level (ICC 2012). In addition, one may need to keep an eye on other negotiating fora than the Nagoya Protocol as well in order to assess the influence of different NSAs in global ABS governance, including in particular WIPO for traditional knowledge and WTO for disclosure (Oberthür and Pożarowska, this volume).

Bibliography Alcock, F. (2008) ‘Conflicts and Coalitions Within and Across the ENGO Community’, Global Environmental Politics 8(4): 66–91. Arts, B. (1998) The Political Influence of Global NGOs: Case Studies on the Climate and Biodiversity Conventions, Utrecht: International Books. Arts, B. and Mack, S. (2003) ‘Environmental NGOs and the Biosafety Protocol: A Case Study on Political Influence’, European Environment 13(1): 19–33. Berne Declaration and Biowatch (2005) Briefing Paper: Responsibilities of User Countries Regarding the Sale of Biopirated Resources or Traditional Knowledge, prepared for WGABS-3, Bangkok, 14–18 February 2005, http://www.evb.ch/cm_data/public/ Responsibilities_of_user_countries_regarding_the_sale_of_biopirated_resources_or_ traditional__0.pdf (accessed 14 December 2012). Berne Declaration, Biowatch, eed, German NGO Forum on Environment and Development, Tebtebba and TWN (2005a) Briefing Paper on the Scope of an International ABS Regime, prepared for WGABS-3, Bangkok, 14–18 February 2005, http://www.evb. ch/cm_data/public/On%20the%20Scope%20of%20an%20International%20ABS%20 Regime.pdf (accessed June 2013). Berne Declaration, Biowatch, eed, German NGO Forum on Environment and Development, Tebtebba and TWN (2005b) Briefing Paper: Patents on Genetic Resources Contradict ‘Facilitated Access’, prepared for WGABS-3, Bangkok, 14–18 February 2005, http://www. evb.ch/cm_data/public/Patents_on_genetic_resources.pdf (accessed 14 March 2013). Berne Declaration, Ecoropa, eed and TWN (2009) The International ABS Regime: Suggestions to Ensure the Enforcement of Provider Rights, prepared for WGABS-7, Paris, 2–8 April 2009, http://www.evb.ch/cm_data/ABSWG-7-NGO-Enforcement.pdf (accessed 14 December 2012). Bernhagen, P. (2008) ‘Business and International Environmental Agreements: Domestic Sources of Participation and Compliance by Advanced Industrialized Democracies’, Global Environmental Politics 8(1): 78–110. Berry, C. and Gabay, C. (2009) ‘Transnational Political Action and ‘Global Civil Society’ in Practice: the Case of Oxfam’, Global Networks 9(3): 339–358.

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Non-state actors in the Nagoya Protocol negotiations 77 Betsill, M.M. and Corell, E. (eds.) (2007) NGO Diplomacy: The Influence of Nongovernmental Organizations in International Environmental Negotiations, Cambridge, MA: MIT Press. BIO (2007) Letter to His Excellency Ahmed Djoghlaf, 30 November 2007, Washington, DC: Biotechnology Industry Organization, http://test.bio.org/ip/international/20071130.pdf (accessed 14 December 2012). Bled, A.J. (2010) ‘Technological Choices in International Environmental Negotiations: An Actor-Network Analysis’, Business & Society 49(4): 570–590. Boström, M. and Tamm Hallström, K. (2010) ‘NGO Power in Global Social and Environmental Standard-Setting’, Global Environmental Politics 10(4): 36–59. Botetzagias, I., Robinson, P. and Venizelos, L. (2010) ‘Accounting for Difficulties Faced in Materializing a Transnational ENGO Conservation Network: A Case-Study from the Mediterranean’, Global Environmental Politics 10(1): 115–151. Burgiel, S. (2007) ‘Non-state Actors and the Cartagena Protocol on Biosafety’, in Betsill, M.M. and Corell, E. (eds.) NGO Diplomacy: The Influence of Nongovernmental Organizations in International Environmental Negotiations, Cambridge, MA: MIT Press, 67–100. CISDL (2003) A New Regime on Access to Genetic Resources and Benefit-Sharing?, 14 March 2003, Montréal: Centre for International Sustainable Development Law, http://cisdl.org/public/docs/news/brief_biodiv.pdf (accessed 14 March 2013). Doherty, B. (2006) ‘Friends of the Earth International: Negotiating a Transnational Identity’, Environmental Politics 15(5): 860–880. Dombrowski, K. (2010) ‘Filling the Gap? An Analysis of Non-Governmental Organizations Responses to Participation and Representation Deficits in Global Climate Governance’, International Environmental Agreements: Politics, Law and Economics 10(4): 397–416. Falkner, R. (2008) Business Power and Conflict in International Environmental Politics, Houndmills, UK: Palgrave Macmillan. Fisher, D.R. (2010) ‘COP-15 in Copenhagen: How the Merging of Movements Left Civil Society Out in the Cold’, Global Environmental Politics 10(2): 11–17. Greenpeace International (2010) Annual Report 2010, Amsterdam: Greenpeace Interna tional, http://www.greenpeace.org/international/Global/international/publications/greenpeace/2011/GPI_Annual_Report_2010.pdf (accessed 14 December 2012). Gulbrandsen, L.H. and Andresen, S. (2004) ‘NGO Influence in the Implementation of the Kyoto Protocol: Compliance, Flexibility Mechanisms, and Sinks’, Global Environmental Politics 4(4): 54–75. ICC (2006) Discussion Paper: Protecting Traditional Knowledge, ICC Doc. No. 450/2009, 12 January 2006, Paris: International Chamber of Commerce, http://www.iccwbo.org/ Advocacy-Codes-and-Rules/Document-centre/2006/Protecting-traditional-knowledge/ (accessed 14 December 2012). ICC (2010a) Priority Areas of Concern for Business, for Interregional Negotiating Group, 18–21 September 2010, Montreal, ICC Doc. No. 450/1058, 9 September 2010, Paris, France: International Chamber of Commerce, http://www.iccwbo.org/Data/ Documents/Intellectual-property/Convention-on-Biological-Diversity/Priority-Areasof-Concern-for-Business-(for-Interregional-Negotiating-Group,-18–21-September2010-Montreal)/ (accessed 14 December 2012). ICC (2010b) Nagoya Protocol Requires Legal Certainty, ICC says, Nagoya, Japan, 2 November 2010, ICC News section, International Chamber of Commerce, http://www. iccwbo.org/News/Articles/2010/Nagoya-Protocol-requires-legal-certainty,-ICC-says/ (accessed 14 December 2012).

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78 Amandine Orsini ICC (2012) Nagoya Protocol Implementation in the EU: Comments on a Possible Due Diligence System and the EU Timber Regulation, International Chamber of Commerce, ICC Doc. No. 450/1075, 18 June 2012, http://www.iccwbo.org/Advocacy-Codesand-Rules/Document-centre/2012/Nagoya-Protocol-Implementation-in-the-EUComments-on-a-possible-due-diligence-system-and-the-EU-Timber-Regulation/ (accessed 14 December 2012). Josselin, D. and Wallace, W. (eds.) (2001) Non-State Actors in World Politics, Houndmills, UK: Palgrave Macmillan. Kautto, P. (2009) ‘Nokia as an Environmental Policy Actor: Evolution of Collaborative Corporate Political Activity in a Multinational Company’, Journal of Common Market Studies 47(1): 103–125. Morin, J.-F. and Orsini, A. (2011) ‘Linking Regime Complexity to Policy Coherency: The Case of Genetic Resources’, GR:EEN Working Paper Series 15/ 2011. Orsini, A. (2011) ‘Thinking Transnationally, Acting Individually: Business Lobby Coalitions in International Environmental Negotiations’, Global Society 25(3): 311–329. RAIPON (2011) To the Secretariat of the Convention on Biological Diversity, submission by the Russian Association of Indigenous Peoples of the North, 29 August 2011, http:// www.cbd.int/abs/submissions/em-compliance/raipon-en.pdf (accessed 14 December 2012). Raustiala, K. (1997) ‘States, NGOs, and International Environmental Institutions’, International Studies Quarterly 41(4): 719–740. Rosendal, G.K. (2006) ‘Balancing Access and Benefit-Sharing and Legal Protection of Innovations from Bioprospecting: Impacts on Conservation of Biodiversity’, Journal of Environment and Development 15(4): 428–447. Rÿser, R.C. (2010) ‘Access & Benefit: Genes’, Fourth World Eye Blog, 3 November 2010, http://cwis.org/FWE/2010/11/03/council-of-the-creeconvention-on-biodiversitynyoyaprotocolindigenous-peoples/ (accessed 14 March 2013). Shawki, N. (2011) ‘Organizational Structure and Strength and Transnational Campaign Outcomes: A Comparison of Two Transnational Advocacy Networks’, Global Networks 11(1): 97–117. Tienhaara, K., Orsini, A. and Falkner, R. (2012) ‘Global Corporations’, in Biermann, F. and Pattberg, P. (eds.) Global Environmental Governance Reconsidered, Cambridge, MA: MIT Press, 45–68. Vormedal, I. (2008). ‘The Influence of Business and Industry NGOs in the Negotiation of the Kyoto Mechanisms: The Case of Carbon Capture and Storage in the CDM’. Global Environmental Politics 8(4): 36–65.

5

The role of the European Union in the Nagoya Protocol negotiations Self-interested bridge building

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Sebastian Oberthür and Florian Rabitz Introduction The European Union (EU; i.e. both the EU itself and its member states) was one of the key players in the negotiations on the Nagoya Protocol. Cooperation and participation of the EU in an ABS protocol was crucial for its prospects: With the US not participating in the negotiations because it is not a party to the Convention on Biological Diversity (CBD), the EU represented about half of the (non–US) utilization of genetic resources (GR) to be regulated (see Table 5.1). It was regulation of the utilization of GR to ensure fair and equitable benefit sharing that was in focus by the demandeurs of the Protocol, that is, developing countries. Thus, developing countries knew that having the EU on board was crucial for advancing benefit sharing by means of a protocol. Consequently, the EU formed part of the inner circle of the negotiations. It was a prominent player throughout the negotiation process (and probably the most prominent player among developed countries) and belonged to the small core group (including also Brazil, Norway and the African Group) that hammered out the deal at Nagoya. Under the circumstances, it may furthermore not be surprising that the EU achieved most of its policy objectives as regards the Nagoya Protocol and the broader agenda of the Nagoya conference, including in particular the adoption of a Strategic Plan for Biodiversity 2011–2020 (comprising the so-called Aichi Biodiversity Targets) and a Strategy for Resource Mobilization (e.g. Aubertin and Filoche 2011; ENB 2010; Wallbott et al., this volume). This success of the EU is all the more noteworthy given that it occurred less than a year after the failed EU leadership at the Copenhagen climate summit of December 2009 (Oberthür 2011; van Schaik and Schunz 2012). Against this backdrop, this chapter explores and explains in more detail the role of the EU in the negotiations on the Nagoya Protocol. We proceed in two broad steps in order to find answers to the following two questions: (1) Did the EU pursue policy objectives that qualify it as an international environmental leader in the Nagoya process? (2) Which factors explain the EU’s policy objectives and their evolution? As regards the first question, we in the next section first establish that an actor’s policy objectives should be in line with recognized collective international goals, as in our case defined by the CBD itself, to qualify for international leadership.

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In the subsequent empirical analysis, we argue that the EU’s policy objectives in the Nagoya process can overall be characterized as conservative (status quo– oriented), with little ambition to move the world closer to the CBD’s objective of fair and equitable benefit sharing. However, the EU’s position, while remaining conservative overall, became moderately more progressive in 2006/07 in the wake of a policy review initiated by the European Commission. The EU’s revised policy objectives made it less conservative than other industrialized countries but remained too conservative to enable us to speak of international EU leadership. We further provide some more evidence that the Nagoya results are very much in line with EU policy objectives. We then investigate four potential explanatory factors that figure prominently in the literature on the EU’s role in global environmental governance, namely domestic interests, domestic legislation, norms, and policy entrepreneurship. We argue that strong biotechnology interests in several EU member states, lack of a direct strong link between ABS and generally accepted environmental norms (‘sustainable development’) and existing legislation on intellectual property rights (IPRs) in combination with nonexisting legislation on ABS help us understand the rather conservative overall position of the EU. However, they fail to provide hints as to the policy change of 2006/07. We find an explanation for this change especially in the entrepreneurial role of the European Commission. It was the Commission that initiated the policy review leading to the policy change of 2006/07 by exploiting the limited room for manoeuvre that internal biotechnology interests left. The Commission’s efforts and the EU’s willingness to compromise during the negotiations were not least driven (1) by the desire to enable progress on other CBD agenda items and (2) by the EU’s normative support for multilateralism and global environmental governance, as reinforced by the crisis of multilateral environmental governance in the wake of the failed 2009 Copenhagen climate summit. Overall, we argue that the EU role in the Nagoya process was ambivalent as it successfully pursued its own interests and, in doing so, helped advance the negotiations towards the Nagoya Protocol. As a result, the EU, on the one side, fended off attempts of developing countries to make more substantive progress towards fair and equitable benefit sharing, in particular by adapting the international system of IPRs. On the other side, the EU’s policy change of 2006/07 enabled agreement on the Nagoya Protocol—which could hardly have been achieved without the EU—and the (limited) progress it constitutes for international ABS governance.

External EU policy on ABS in the Nagoya process Establishing a standard for leadership: Ambition Much of the existing literature on leadership in international (environmental) politics has been concerned with leadership typologies based on the resources used by an actor to exert influence. With some variation, this literature has generally distinguished three modes of leadership. First, structural leadership, coercive leadership or ‘sticks and carrots’ refers to the use of positive and negative incentives based

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The European Union in the Nagoya Protocol negotiations 81 on military and economic power. Second, entrepreneurial leadership, instrumental leadership or problem solving refers to the ability of an actor to apply diplomatic means in order to create winning coalitions. Third, an actor exerting intellectual, unilateral or directional leadership uses ideas and domestic tools to influence the perception of other countries (see discussion with further references in Grubb and Gupta 2000; Skodvin and Andresen 2006; see also Hufty et al., this volume; Wallbott, this volume). While these different leadership modes may provide hints as to driving factors, they provide little guidance for distinguishing leaders from other influential actors (also Eckersley 2012; Skodvin and Andresen 2006). Acknowledging the inherently normative nature of the concept of ‘leadership’, we suggest that, to qualify for international leadership, an actor’s policy objectives need to be in line with a recognized collective international goal. This approach is in line with the conceptual literature on environmental leadership. For example, Arild Underdal has referred to leadership being associated with the ‘collective pursuit of some common good or joint purpose’ (Underdal 1994: 178–179) and Robyn Eckersley (2012) to a ‘shared’ or ‘common purpose’. In the context of international institutions (such as the CBD and its Nagoya Protocol), the overall purpose(s) of the institution in question can serve as a suitable internationally recognized standard. The core purpose of multilateral environmental agreements (such as preventing dangerous climate change or protecting biodiversity) is usually enshrined in a treaty to which all members have subscribed. An actor’s policy objectives can thus be considered to qualify for leadership to the extent that they aim at the—frequently still contested—realization of the overall institutional purpose. As regards the EU, such a benchmark also finds a further rationale in the EU’s established support for multilateralism. In this way, our proposed standard also integrates to a significant extent the EU’s contribution to the effectiveness of the international institution in question (see Laatikainen and Smith 2006: 10). An environmental leader’s policy objectives can thus be expected to be both ambitious and ‘reformist’. Realising the recognized purpose(s) of multilateral environmental agreements, such as preventing dangerous climate change, protecting the ozone layer, reducing transboundary air pollution, restricting trade in endangered species, protecting biodiversity and so, forth regularly requires significant behavioural and policy changes. Consequently, if an actor’s objectives are ambitious in aiming at realising the purpose of multilateral environmental agreements, they will, as a general rule, also be reformist (as opposed to conservative). We therefore assess in the following to what extent the EU pursued ambitious versus conservative policy objectives in the Nagoya process. While our analysis focuses on the EU’s policy objectives and their evolution, we also briefly touch upon the second core aspect of international environmental leadership, namely the degree to which the EU was successful in achieving its goals. The leadership literature generally assumes that international leaders have some level of success in achieving their objectives (e.g. Grubb and Gupta 2000; Skodvin and Andresen 2006; Underdal 1994; see also Schirm 2010). We address this aspect in the following to a limited degree by analysing to what extent the Nagoya Protocol and the broader outcome of the Nagoya conference are in line

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with the EU’s policy objectives while leaving a more elaborate analysis of actual EU influence to another occasion.

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The EU’s policy objectives: From conservative to moderately conservative As the driving force in the Nagoya process, developing countries pursued the most ambitious policy objectives aiming at an effective implementation of the benefitsharing objective of the CBD, as can be demonstrated with reference to five major issues in the negotiations. First, developing countries (acting through several subgroups, including the Like-Minded Megadiverse Countries, the African Group, the Group of Latin American and Caribbean Countries and the Like-Minded AsiaPacific Countries; see Wallbott et al., this volume) asked for the new international regime to be legally binding (meeting with opposition or scepticism of developed countries). Second, developing countries requested binding user-country measures to enforce compliance by actual users (e.g. biotechnological firms). They in particular demanded the establishment of so-called mandatory disclosure requirements, that is, an obligation to disclose in patent applications the origin of any GR used and other relevant information (including on ‘prior informed consent’ and ‘mutually agreed terms’; see Tvedt, this volume). In contrast, industrialized countries rejected any interference with the patent system as regulated under the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (WTO-TRIPS) and the World Intellectual Property Organization (WIPO). Third, developing countries advocated a broad temporal and substantive scope of the new regime, covering new utilization of GR accessed in the past (as now contained in ex-situ collections), derivatives (such as biochemical compounds derived from biological/GR) and related information, while developed countries argued for limiting the scope to newly accessed resources only. Fourth, several developed countries suggested the establishment of firm international access standards to be implemented by provider countries so as to ensure transparency and legal certainty. And finally, developing countries requested subjecting other international institutions, at least in part, to the new regime, whereas developed countries were eager to shield other institutions (including WTO and WIPO) from interference (Buck and Hamilton 2011; Wallbott et al., this volume). Before proceeding to the analysis of EU external ABS policy, it is important to understand the structures in which such policy is made. The organization of EU external ABS policy largely followed the established general practices for EU external policy (see Delreux 2012). In areas of ‘shared competence’ such as environmental policy, the EU itself—commonly represented by the European Commission—and the EU member states usually possess competence and thus all usually participate in international negotiations (and both the EU and its member states usually become parties to the resulting ‘mixed’ multilateral agreements). Consequently, both the EU and the member states are parties to the CBD and participated in the negotiations on the Nagoya Protocol. In the negotiations, the EU (including the member states) is usually represented by the Presidency of the Council of the European Union, which rotates every 6 months among the EU

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The European Union in the Nagoya Protocol negotiations 83 member states, or the European Commission (or both). In any event, the EU and its member states usually have a common position and speak with one voice in the negotiations. The making of external EU policy therefore regularly implies policy coordination involving representatives of the member states and the Commission meeting prior to and at the international negotiation sessions (e.g. Delreux 2011). The EU’s external ABS policy was consequently elaborated in the formation on biological diversity of the Working Party on International Environment Issues (WPIEI) of the EU Council involving all member states as well as the European Commission. The agreed negotiating positions were subsequently, following common practice, reflected in so-called Council Conclusions, that is, conclusions of the Council of EU Environment Ministers that meets about every three months. On this basis, the delegations of the member states and the Commission further coordinated their strategy through daily meetings at the international negotiations. The EU and its member states were formally represented in the negotiations by the rotating Council presidency (in Nagoya: Belgium) and the European Commission, with the latter acquiring an increasingly central role in the context of the review of the EU’s external ABS policy from 2006 (see below in this section and in ‘Norms and the role of the European Commission as a policy entrepreneur’). The EU’s policy objectives on ABS that emanated from this system until 2005 can be considered ‘conservative’. The EU and its member states lacked coherence on the issue at stake and can be characterized as bystanders in the 1990s (Rosendal 2000: chapter 5). In line with this early positioning, Council conclusions (Environment Ministers) from 2002 up until 2005 hardly mention ABS but instead focus on the CBD under the perspective of biosafety, biodiversity conservation and sustainable use. Accordingly, whereas the EU managed to put common positions forward and speak with one voice from the beginning of the Nagoya process, its positions were hardly substantive and not helpful for advancing the international negotiations. It in particular prioritized the implementation of the Bonn Guidelines over developing a new and binding international regime. Overall, the EU’s approach was passive/reactive so that it remained associated with the general position of industrialized countries as briefly characterized previously.1 Following an internal policy review (see also section on ‘Norms and the role of the European Commission as a policy entrepreneur’ below), the EU position changed significantly and grew much more detailed in 2006/2007 as reflected in the Environment Council Conclusions of 9 March 2006 and 28 June 2007 as well as in EU submissions to the international negotiations (see in particular CBD 2008: 28–33; CBD 2009: 7–24; also for the following).2 The revised EU position in particular related the legal nature of the new regime, user-country measures and international access standards in a package that satisfied all major internal interests. Specifically, the EU offered to support the legal bindingness of at least some elements of a future agreement, including certain user-country measures (demanded by provider interests), in exchange for minimum ‘international standards on national access law and practice’ (CBD 2008: 30; attractive to biotechnology interests). Such international access standards

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were to provide for easy and transparent procedures for users wishing to obtain ‘prior informed consent’ to access GR by provider countries. However, binding user-country measures acceptable to the EU could not include the aforementioned mandatory disclosure requirements in IPR applications demanded by developing countries. The EU also rejected inclusion of a list of checkpoints into the Protocol and in particular the mandatory designation of patent offices as such checkpoints. Instead, the EU advocated a voluntary ‘internationally recognized certificate of compliance with national access rules’ (CBD 2008: 31) as a means to facilitate compliance. Whereas the EU was in substance prepared to look into a ‘soft’ requirement to disclose the origin of GR in patent applications (as it had proposed in 2004 in WIPO and was prepared to accept as part of a package deal within the WTO), it was determined to have this debate in the WTO and/or WIPO rather than the CBD. As regards scope and the relationship with other international institutions in general, the EU position remained unchanged and in line with the established viewpoint of developed countries. The scope should be restricted to GR accessed after the entry into force of any protocol (in order to prevent a ‘retroactive application’ that the EU considered unacceptable as possibly leading to a de facto invalidation of existing patents). Furthermore, interference with other international institutions should be avoided. To accommodate, trade/IPR interests within the EU (especially noninterference with the WTO and WIPO), was emphasized. Later on, in 2009, the EU also strongly demanded explicit noninterference with the World Health Organization (WHO), since health interests in the EU had identified access to viruses for pharmaceutical research (especially in situations of health emergency) as a particular concern (see also Nijar 2011). Interference with the international IPR system and the WHO became a nonnegotiable ‘red line’. In addition, the EU emphasized the authority of other international institutions to address and regulate ABS matters in accordance with their mandates, which would include the possibility of them developing specialized ABS systems in the future. With this revised position, the EU remained oriented towards the conservative end of the spectrum but moved towards developing countries to some extent. In contrast, most other industrialized countries (Australia, Canada, Japan and New Zealand—with the US not participating since it is not a party to the CBD) strongly resisted the idea of a legally binding international regime, instead preferring voluntary measures and codes of conduct. With its revised external policy, the EU positioned itself as building a bridge between developed and developing countries. At the same time, the EU position remained conservative as it promised rather limited substantive progress towards realising the benefit-sharing objective of the CBD (also compared to the proposals by developing countries; e.g. Aubertin and Filoche 2011; ENB 2010; Wallbott et al., this volume). Implications of the EU’s policy change The EU policy change injected new momentum into the international negotiations and arguably paved the way towards agreement in Nagoya in 2010. The

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The European Union in the Nagoya Protocol negotiations 85 heaviest weight among developed countries moving towards developing countries had to appeal to the latter as a significant opening. With its revised external policy, the EU positioned itself as most progressive among developed countries (joining Norway and Switzerland; see also Hufty et al., this volume). While this position was far from any unequivocal support for measures to ensure effective benefit sharing, it helped bridge the gap between developed and developing countries and kick-started a process that had been gridlocked for several years. The EU’s change of policy can thus be directly related to the acceleration of the international negotiations from 2006 (see Wallbott et al., this volume). In contrast to earlier times, the EU now also by and large acted in a proactive way trying to push the international negotiations towards their successful conclusion. From being a bystander in the early 1990s, the EU became the central developed country player. Consequently, the EU was also a key actor in the final negotiations in Nagoya, where it was included in the informal consultations between the Japanese conference presidency and a small group of delegations including the EU, Brazil, Norway and the African Group. Overall, the EU’s revised, more progressive and bridge-building ABS policy can be considered crucial for securing the Nagoya Protocol (e.g. Aubertin and Filoche 2011; ENB 2010). As its reward, the EU achieved most of what it wanted in the Protocol and in the broader Nagoya package (see also Joseph 2010; Wallbott et al., this volume). Since developing countries knew that having the EU on board was crucial for advancing benefit sharing, it may not be surprising that the Protocol is very much in line with the revised EU position. The legally binding Nagoya Protocol adopted in October 2010 elaborates and clarifies the regulatory framework of the CBD. Rather than including mandatory disclosure requirements opposed by the EU, it obliges parties to make compliance with ABS requirements mandatory under domestic law, to facilitate and enable private enforcement through their domestic judicial systems and to designate ‘checkpoints’ that are to collect from users information on the origin of GR utilized and further related information. As supported by the EU, permits issued by provider countries and containing this information can serve as (nonobligatory) internationally recognized certificates of compliance. As regards the scope, the Protocol arguably does not apply to GR accessed in the past (even though this issue remains on the international agenda as regards the further development and implementation of the Protocol). As proposed by the EU, the Protocol furthermore establishes international access standards, requiring parties to provide for legal certainty, clarity and transparency of their domestic ABS legislation. Finally, also in line with the EU’s objectives, the Protocol stipulates that other international institutions should be supportive of and not run counter to the CBD regime to achieve mutual supportiveness. Complementary specialized ABS regimes under other frameworks can be newly created, maintained and further developed (see e.g. Buck and Hamilton 2011; Kamau et al. 2010; Nijar 2011). The major concession the EU had to make would appear to be the broader scope of the Protocol that does not only cover GR as such, but also derivatives. According to Buck and Hamilton (2011: 57), this broadened scope enhanced the economic value of the Nagoya Protocol to provider countries at least twentyfold.

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In exchange, the EU did not only claim the diplomatic success of the conclusion of the Protocol but also secured the overall success of the Conference that in particular also adopted a Strategic Plan for Biodiversity 2011–2020 (including the so-called Aichi Biodiversity Targets) and a Strategy for Resource Mobilization (ENB 2010; Morgera and Tsioumani 2011). Overall, the outcome of the Nagoya conference can thus be considered a major success for the EU.

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Explaining the EU’s external ABS policy In the following, we first introduce briefly a set of four core explanatory factors. This will provide the basis for the subsequent analysis to shed light on the driving forces that may explain (1) the EU’s overall rather conservative external ABS policy in the Nagoya process and (2) the policy change towards a more moderate position in 2006/2007. Core explanatory factors Based on the literature on the role of the EU in international environmental policy (e.g. Falkner 2007; Kelemen and Vogel 2010; Schreurs and Tiberghien 2007), we identify in the following four particular explanatory factors that together compose our explanatory model: domestic interests, existing domestic legislation, EU norms and the role of policy entrepreneurs. First, the status of internal EU legislation has been identified as an important factor (e.g. Bretherton and Vogler 2006: 89–110). This factor is closely related to the type of intellectual/unilateral/directional leadership (see above) since it provides an important basis for any ‘leadership by example’ (see also Parker and Karlsson 2010). Not least, ambitious internal policies serve to underpin and reinforce ambitious international demands of the EU and enhance their credibility. In addition, established internal policies and laws provide a common platform for international positions of the EU, since EU member states (and relevant stakeholders) have a strong interest in ‘uploading’ domestic EU regulations, especially where these are relatively ambitious (e.g. Falkner 2007; Kelemen 2010; Kelemen and Vogel 2010). Thus, the existence of ambitious internal legislation has a unifying effect, enhancing the degree of interest homogeneity within the EU (see next). Second, the domestic interests especially of EU member states may affect the EU’s policy objectives in international negotiations. In focus in this respect is the relative strength of status quo–oriented and ambitious, reformist interests across the EU. Strong status quo–oriented interests are likely to hamper ambitious positions by the EU. Conversely, strong domestic support for ambitious policies can help explain ambitious EU external policy objectives. How strong these interests need to be across the EU in order to carry the day will not least depend on the applicable decision-making procedure within the EU: Qualified majority voting will require less homogeneity than unanimity (e.g. Falkner 2007; see also Groenleer and van Schaik 2007; Rhinard and Kaeding 2006). In this context, possible (political) issue linkages deserve attention. For example, an actor may attempt to

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The European Union in the Nagoya Protocol negotiations 87 improve its position by linking the issue under negotiation with another one (Stein 1980). As a consequence, other interests than those directly related to the issue focused upon may need to be considered. Third, relevant norms shared among EU member states and other relevant EU actors may drive EU positions in international negotiations. Prime candidates for such norms as regards multilateral environmental negotiations may be ‘sustainable development’ (as enshrined in Arts. 3 and 21 of the Treaty on European Union as well as Art. 11 of the Treaty on the Functioning of the European Union) and the well-known EU support for multilateralism in general and global environmental governance in particular. The latter norms may drive the EU towards ambitious policies in line with recognized multilateral objectives and towards international agreement in general (see also van Schaik and Schunz 2012). Finally, ‘policy entrepreneurs’ may play a key role in grasping emerging windows of opportunity that allow them to link problems to solutions (Kingdon 1995). Such policy entrepreneurs may be instrumental in agreeing on a substantive EU position in the first place and in pushing the EU towards becoming more ambitious. In this respect, Schreurs and Tiberghien (2007) have argued that the multilevel, multiactor system of the EU provides multiple entry points for interested actors, including the European Commission, to push for progressive environmental policy. EU external ABS policy and its evolution may thus also be explained with reference to the activities of policy entrepreneurs (see also Boasson and Wettestad 2013). Domestic politics and law: Strong status-quo forces Domestic politics and law contribute to our understanding of why the EU pursued relatively conservative policy objectives in the Nagoya process. They possess little explanatory power, however, as regards the policy change of 2006/07. The conservative policy objectives of the EU in the Nagoya process correspond well with a lack of ambitious EU legislation on ABS. While the EU has developed some action plans addressing biodiversity at large along with selected pieces of legislation addressing the conservation and sustainable use of biodiversity (especially the Birds and Habitats Directives; Louka 2004: 271–278), the EU and its member states do not have specific legislative frameworks addressing ABS in place.3 Relevant legislative frameworks do, however, exist as regards IPRs, especially the 1998 Biopatents Directive as well as Council Regulation (EC) No 2100/94 on plant variety rights (along with related legislation at member-state level). The Biopatents Directive implements Article 27.3 of the WTO-TRIPS Agreement by establishing the patentability of biotechnological inventions across the EU. In its 27th preambular consideration, it does establish that the geographical origin of a GR used in an invention is to be disclosed in patent applications, but it also excludes any effect on the processing of the application or the validity of the resulting patent. Several EU member states (including Germany, Italy and Belgium) subsequently implemented this provision in their national patent laws accordingly.4 Regulation 2100/94 (and several accompanying implementing

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regulations) creates a uniform European system for the protection of new breeds (that is somewhat weaker than patent protection), which constitutes a sui generis system under Article 27.3 TRIPS for this particularly sensitive area (CBD 2007; Seville 2009). If anything, this existing legislation would thus lead one to expect that the EU would be—as it was—hesitant to agree to far-reaching ABS provisions and in particular to changing existing IPR rules (e.g. by introducing a mandatory disclosure requirement), since this would require changes of established domestic legislation. No major changes of relevant EU legislation occurred throughout the Nagoya process that would help explain the policy change of 2006/07. Domestic interests also help us understand the EU’s rather conservative external ABS policy but cannot account for the policy change in 2006/2007 either. First of all, biotechnological industry and related interests are comparatively strong in the EU. The EU is the second-largest player in global biotechnology behind the US. Biotechnology in Europe is used mainly in agro-food applications and pharmaceuticals; its overall contribution to European Gross Value Added is estimated to be in the range of 1.43–1.69 per cent (Papatryfon et al. 2008). Taking patent applications as an indicator (as is common), figures in Table 5.1 indicate that the EU has a market share of close to 30 per cent, second only to the US (around 40 per cent) and far ahead of others (Japan around 12 per cent; others less than 5 per cent). Second, biotechnological interests are distributed asymmetrically within the EU, with Germany, the UK, France, Denmark, the Netherlands and a couple of other Western European countries accounting for the largest part. Specializations vary, with Swedish industry focusing on the health sector, whereas German industry is far more diversified. At the other end of the spectrum, a number of EU member states, especially the eastern ones, possess hardly any significant biotechnological industry (European Commission 2007; van Beuzekom and Arundel 2009; Table 5.1). These interests remained rather stable throughout the Nagoya process. Even though interest by biotechnology stakeholders in international access standards grew to some extent, biotechnology industry remained much opposed to the Nagoya Protocol throughout the process (see Orsini, this volume). Member states with significant stakes in biotechnology constituted a significant group that could hardly be outvoted by others, even though qualified majority voting would in general be applicable. These others, at the same time, did not have high stakes as regards the management of GR in general and benefit sharing in particular. Under these circumstances, we should thus expect the EU to pursue rather status quo–oriented interests (as it did). However, as in the case of EU legislation, the rather stable internal constellation of interests can hardly contribute to our understanding of the policy change in 2006/07. Taking into account that ABS was part of the broader CBD agenda and thus linked to other items does provide some explanatory leverage, though. This issue linkage was implicit at first but became explicit during 2010. In the 2000s, developing countries increasingly held back progress on other CBD agenda items closer to the heart of the EU because of a lack of progress on ABS. Trying to resolve the resulting deadlock provided an important rationale and motivation for the EU policy review and subsequent policy change in 2006/07.5 During the Nagoya process, progress on other CBD agenda items remained dependent on progress on ABS. Towards the Nagoya conference, this linkage was then reinforced

The European Union in the Nagoya Protocol negotiations 89

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Table 5.1 Share of countries in biotechnology patent applications under the Patent Cooperation Treaty in 2006 Country/Region

%

USA

41.5

EU-27

27.4

– Germany

7.0

– UK

4.5

– France

3.6

– Netherlands

2.8

– Denmark

1.7

– Italy

1.4

– Sweden

1.4

– Spain

1.3

– Belgium

1.3

– other EU

2.4

Japan

11.9

Canada

3.2

South Korea

3.0

Australia

2.1

China

1.9

India

0.9

Russian Federation

0.8

Brazil

0.3

South Africa

0.1

Other

6.9

TOTAL

100

Source: Data from Van Beuzekom and Arundel 2009: 71.

and made explicit by developing countries led by Brazil, which made the adoption of an ABS Protocol at Nagoya a precondition for agreeing to a Strategic Plan for Biodiversity 2011–2020 and a Strategy for Resource Mobilization (e.g. ENB 2010; Morgera and Tsioumani 2011: 12; Wallbott et al., this volume). Norms and the role of the European Commission as a policy entrepreneur Normative factors contribute in particular to understanding the EU’s policy change of 2006/07 and its willingness to compromise to some extent during the negotiations. To start with, the link between ABS and sustainable development/

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environmental protection is rather indirect since ABS, as pursued under the CBD, is framed as an economic issue that raises equity concerns rather than as an issue of environmental protection. Therefore, the environmental impetus of ‘sustainable development’ did hardly provide a suitable normative basis for pushing the EU towards an ambitious ABS policy—but also did not support the rather conservative EU position. Consequently, the aforementioned conclusions of the Environment Council and the EU submissions to the international negotiations hardly relied on related normative arguments so that one EU negotiator referred to developing countries occupying the ‘moral high ground’ on most negotiating items.6 In contrast, the EU’s normative support for multilateralism in general and global environmental governance in particular did provide an important rationale and driver for the efforts of the EU to take a more constructive and proactive role in the negotiations and to work towards their successful conclusion. Such a more proactive EU position had the attractive potential to remove the dissonance between the established self-perception of the EU as a champion of multilateralism and the EU’s actual ABS position so far. During the last year of the negotiations, this normative factor was reinforced by the historical context of the Nagoya conference that took place in the aftermath of the failed 2009 Copenhagen climate summit. Under the circumstances, failure to agree on the aforementioned package would have meant failure for the CBD as a whole, which could have spelt doom for the EU’s commitment to global environmental governance. In contrast, a successful conference provided the opportunity to demonstrate that multilateralism and global environmental governance can deliver. To be sure, this context did not only put pressure on the EU but also on other participants, including developing countries. Nevertheless, it helps us understand why the EU was prepared to work towards an unloved Protocol from 2006 and to make some modest concessions in the negotiations to this end (such as the inclusion of derivatives).7 Finally, our research suggests that the European Commission played a crucial role as a policy entrepreneur in changing and elaborating the EU position from 2006/2007. In the context of a change of staff in the responsible unit of DG Environment, the Commission took the initiative to hold a wide range of consultations with member states, stakeholders and experts to develop a consistent EU position that would align member states with significant biotechnological interests with those interested in advancing global environmental governance and multilateralism (including the Commission and DG Environment itself). In addition, DG Environment staff invested a significant effort in elaborating further details of the outlined international system that would make it consistent and workable.8 In substance, DG Environment combined several elements to create a win-win situation for all major interests involved. In particular, agreement on (limited) progress on benefit sharing (demanded by provider interests) was made conditional on agreement on internationally harmonized access standards (attractive to biotechnology interests), while a more constructive EU position was especially expected to advance negotiations on other parts of the CBD agenda (see previous sections). Overall, DG Environment thus skilfully exploited the existing political room for manoeuvre to move the EU position beyond the existing lowest common

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The European Union in the Nagoya Protocol negotiations 91 denominator (i.e. the position of conservative biotechnology interests). While a more ambitious position may have seemed warranted in order to make bigger advances towards effective benefit sharing, attempts to move the EU further might arguably have risked activating opposition by member states with significant biotechnology interests and may have endangered the modest advances made. Since it both served environmental and multilateralist interests and represented only modest concessions on the side of industry interests, the Commission’s initiative gained traction among member states.9 On this basis, the Commission acquired an increasingly central role in EU internal coordination and external representation of the EU from 2006. The Commission’s entrepreneurial role, in particular the expertise and capacity that DG Environment demonstrated in developing and putting forward policy proposals, was increasingly acknowledged by EU member states. As a result, the Commission became the de facto EU negotiator in the Nagoya process. Eventually, this process culminated in the Council granting the Commission a formal negotiating mandate under Article 300 of the Treaty Establishing the European Community for nearly all issues in the protocol negotiations (exception: traditional knowledge and capacity building) on 26 October 2009, which it renewed for the Nagoya conference itself on 21 September 2010 (now based on Art. 218 of the Treaty on the Functioning of the European Union that entered into force in December 2009; Delreux 2012).10

Concluding remarks The EU was a crucial player in the negotiations on the Nagoya Protocol. As the heaviest weight among developed countries, accounting for about half of the non– US biotechnology market, EU participation was indispensable so that the EU had veto power. In this privileged position, the EU was a prominent player throughout the negotiation process, formed part of the inner circle of the negotiations and belonged to the small core group that hammered out the deal at Nagoya. The external EU policy objectives on ABS do not qualify the Union as an international environmental leader in the Nagoya process. These policy objectives can overall be characterized as rather conservative and status quo–oriented, contrasting with strong demands of developing countries aimed at significantly advancing the benefit-sharing objective of the CBD. However, the EU’s position, while remaining conservative overall, became more moderate and progressive in 2006/07 in the wake of a policy review initiated by the European Commission. Its revised policy objectives made the EU less conservative than other industrialized countries but left it far more conservative/less ambitious than developing countries. While the EU did thus not qualify as an international environmental leader, it achieved most of its goals at Nagoya. The Nagoya Protocol very much reflects the main positions of the EU and respects its ‘red lines’. In addition, the EU was successful in securing the overall success of the Nagoya conference, including the adoption of a Strategic Plan for Biodiversity 2011–2020 and a Strategy for Resource Mobilization.

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Four factors that figure prominently in the literature on the EU’s role in global environmental governance help us understand the rather conservative EU policy objectives and their evolution/softening. First of all, strong biotechnology interests in several EU member states prevented a (more) ambitious external EU policy on ABS. This was further reinforced by domestic legislation that grants IPRs to biotechnological inventions but does not provide for benefit-sharing standards and their enforcement. At the same time, ABS as an equity issue rather than a matter of environmental protection does not lend itself well to activating generally accepted environmental norms (such as sustainable development). As these factors remained relatively stable throughout the Nagoya process, they fail to provide hints as to the EU’s policy change of 2006/07. We find an explanation for this change especially in the entrepreneurial role of the European Commission. It was the Commission that initiated the policy review leading to the policy change of 2006/07. The policy space for this review was in particular created by two factors. First, environmental stakeholders (including the Commission’s DG Environment) were interested in advancing international ABS discussions in order to allow for progress also on other items on the broader CBD agenda. Second, a more constructive role of the EU in the international negotiations promised to reduce the tension between its ABS policy and its declared support of multilateralism and global environmental governance. These factors—reinforced by the explicit issue linkage by developing countries between the Protocol and the other Nagoya outcomes as well as by the shadow of the failed Copenhagen climate summit—also underlay the willingness of the EU to accept limited compromises as regards the Protocol. The 2006/07 revision of the EU’s policy objectives may have served both EU interests and international objectives. Arguably, the EU’s policy change of 2006/07 enabled or at least greatly facilitated agreement on an ABS protocol. It was crucial for finding a way out of the long-lasting stalemate in the international negotiations and paved the way towards an agreement. As such, it, on the one side, allowed the EU to maximize its gains in Nagoya: It succeeded in securing a binding ABS Protocol that respects the core EU interests, progress on the other two objectives of the CBD closer to the EU’s heart and a reinvigoration of multilateral environmental governance. On the other side, the revised EU external ABS policy also contributed to the (limited) progress of global ABS governance that the Nagoya Protocol constitutes. While one may have wished for the EU leading with more ambition towards a truly effective international ABS regime, without its policy revision, there might have been no Nagoya Protocol and thus no progress on the development of international ABS policy at all. The EU has followed up on honouring the agreement reached at Nagoya by taking steps to ratify and implement the Nagoya Protocol. The EU and most of its member states are signatories to the Protocol. In addition, the European Commission has initiated implementation of the Protocol as a step towards its ratification. In particular, it presented a proposal for an EU Regulation on ABS to the European Parliament and the Council in October 2012 that would put in place a system of due diligence for ensuring that GR are accessed in accordance with the requirements of the Protocol. The proposed Regulation is meant to prepare the EU

The European Union in the Nagoya Protocol negotiations 93 for ratification of the Nagoya Protocol by ensuring it complies with the Protocol’s provisions (European Commission 2012). While the adoption of the Regulation remains pending as of April 2013, it may be adopted in the course of 2013 or in early 2014, which should enable a smooth ratification of the Protocol.

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Notes 1 The Environment Council conclusions are available at http://www.consilium.europa. eu/press/press-releases/environment?lang=en&BID=89 (accessed 12 March 2013); see also the reports of the Earth Negotiations Bulletin on the negotiating sessions at http:// www.iisd.ca/process/biodiv_wildlife.htm and Wallbott et al., this volume. 2 For the Environment Council conclusions, see note 1 above. 3 See http://www.cbd.int/abs/measures/ (accessed on 25 March 2013). 4 Ibid. 5 Interviews with key EU negotiators from DG Environment and member states, 29 September 2010, 8 February 2011, 17 August 2011 and 14 July 2012. 6 Interview with key EU negotiator from DG Environment, 17 August 2011. 7 The relevance of these factors was also acknowledged and emphasized in our interviews with key EU negotiators from DG Environment, 8 February 2011 and 17 August 2011, and with member state negotiator, 14 July 2012. 8 See interviews referred to in note 5 above. 9 Ibid.; for the detailed EU position, see in particular CBD 2008: 28–33 and CBD 2009: 7–24. 10 See also interviews referred to in note 5 above; the granting of a negotiating mandate was further supported by a widespread scepticism of member states vis-à-vis the next incoming Council presidencies at that point in time (Sweden, Spain).

Bibliography Aubertin, C. and Filoche, G. (2011) ‘The Nagoya Protocol on the Use of Genetic Resources: One Embodiment of an Endless Discussion’, Sustentabilidade em Debate 2(1): 51–63. Boasson, E.L. and Wettestad, J. (2013) EU Climate Policy: Industry, Policy Interaction and External Environment, Farnham, UK: Ashgate. Bretherton, C. and Vogler, J. (2006) The European Union as a Global Actor, 2nd edition, London: Routledge. Buck, M. and C. Hamilton (2011) ‘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’, Review of European Community & International Environmental Law 20(1): 47–61. CBD (2007) Analysis of Gaps in Existing National, Regional and International Legal and Other Instruments Relating to Access and Benefit-Sharing, UN Doc. UNEP/CBD/WGABS/5/3, 13 September 2007, Convention on Biological Diversity. CBD (2008) Compilation of Submissions by Parties, Governments, Indigenous and Local Communities and Stakeholders on Concrete Options on Substantive Items on the Agenda of the Fifth and Sixth Meetings of the Ad Hoc Working Group on Access and Benefit Sharing, UN Doc. UNEP/CBD/WG-ABS/6/INF/3, 13 December 2007, Convention on Biological Diversity. CBD (2009) Compilation of Submissions by Parties, Governments, International Organizations, Indigenous and Local Communities and Stakeholders in Respect of the Main

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Components of the International Regime on Access and Benefit-Sharing Listed in Decision IX/12, Annex I, UN Doc. UNEP/CBD/WG-ABS/7/INF/1, 2 February 2009, Convention on Biological Diversity. Delreux, T. (2011) The EU as International Environmental Negotiator, Aldershot, UK: Ashgate. Delreux, T. (2012) ‘The Rotating Presidency and the EU’s External Representation in Environmental Affairs: The Case of Climate Change and Biodiversity Negotiations’, Journal of Contemporary European Research 8(2): 210–227. Eckersley, R. (2012) Does Leadership Make a Difference in International Climate Politics? Paper presented at the International Studies Association Annual Convention 2012, San Diego, 1–4 April 2012. ENB (2010) The Tenth Meeting of the Conference of the Parties (COP 10) to the Convention on Biological Diversity (CBD), 18–29 October 2010, The Earth Negotiations Bulletin, http://www.iisd.ca/biodiv/cop10/ (accessed 21 April 2013). European Commission (2007) Competitiveness of the European Biotechnology Industry, http://ec.europa.eu/enterprise/sectors/biotechnology/files/docs/biotech_analysis_ competitiveness_en.pdf (accessed 21 April 2013). European Commission (2012) Proposal for a Regulation of the European Parliament and of the Council on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union, Doc. COM(2012) 576 final, Brussels, 4 October 2012: European Commission. Falkner, R. (2007) ‘The Political Economy of “Normative Power” Europe: EU Environmental Leadership in International Biotechnology Regulation’, Journal of European Public Policy 14(4): 507–526. Falkner, R. (2009) ‘The Global Politics of Precaution: Explaining International Cooperation on Biosafety’, in S. Brem and K. Stiles (eds.) Cooperating Without America: Theories and Case Studies of Non-Hegemonic Regimes, London: Routledge, 105–122. Groenleer, M. and Van Schaik, L. (2007) ‘United We Stand? The European Union’s International Actorness in the Cases of the International Criminal Court and the Kyoto Protocol’, Journal of Common Market Studies 45(5): 969–988. Grubb, M. and Gupta, J. (2000) ‘Leadership: Theory and Methodology’, in J. Gupta and M. Grubb (eds.) Climate Change and European Leadership: A Sustainable Role for Europe? Dordrecht: Kluwer, 15–24. Joseph, R. (2010) ‘International Regime on Access and Benefit Sharing: Where Are We Now?’ Asian Biotechnology and Development Review 12(3): 77–94. Kamau, E.C., Fedder, B. and Winter, G. (2010) ‘The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: What is New and What Are the Implications for Provider and User Countries and the Scientific Community?’ Law, Environment and Development Journal 6(3): 246–262. Kelemen, R.D. (2010) ‘Globalizing European Union Environmental Policy’, Journal of European Public Policy 17(3): 335–349. Kelemen, R.D. and D. Vogel (2010) ‘Trading Places: The Role of the United States and the European Union in International Environmental Politics’, Comparative Political Studies 43(1): 427–456. Kingdon, J.W. (1995) Agendas, Alternatives and Public Policies, London: Longman. Laatikainen, K.V. and Smith, K. (2006) ‘Introduction—The European Union at the United Nations: Leader, Partner or Failure?’ In K.V. Laatikainen and K. Smith (eds.) The European Union at the United Nations: Intersecting Multilateralisms, Basingstoke, UK: Palgrave Macmillan, 1–23.

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The European Union in the Nagoya Protocol negotiations 95 Louka, E. (2004) Conflicting Integration: The Environmental Law of the European Union, Cambridge, UK: Intersentia. Morgera, E. and Tsioumani, E. (2011) ‘Yesterday, Today and Tomorrow: Looking Afresh at the Convention on Biological Diversity’, Yearbook of International Environmental Law (2011): 1–38. Nijar, G. (2011) The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: An Analysis, CEBLAW Brief, Kuala Lumpur: Centre of Excellence for Biodiversity Law. Oberthür, S. (2011) ‘The European Union’s Performance in the International Climate Change Regime’, Journal of European Integration 33(6): 667–682. Papatryfon, I., Zika, E., Wolf, O., Gómez-Barbero, M., Stein, A.J. and Bock, A. (2008) Consequences, Opportunities and Challenges of Modern Biotechnology for Europe, Luxembourg/Seville: European Commission, Joint Research Centre, Institute for Prospective Technological Studies. Parker, C.F. and Karlsson, C. (2010) ‘Climate Change and the European Union’s Leadership Moment: An Inconvenient Truth?’ Journal of Common Market Studies 48(4): 923–943. Rhinard, M. and Kaeding, M. (2006) ‘The International Bargaining Power of the European Union in “Mixed” Competence Negotiations: The Case of the 2000 Cartagena Protocol on Biosafety’, Journal of Common Market Studies 44(5): 1023–1050. Rosendal, G.K. (2000) The Convention on Biological Diversity and Developing Countries, Dordrecht, the Netherlands: Kluwer Academic Publishers. Schirm, S. (2010) ‘Leaders in Need of Followers: Emerging Powers in Global Governance’, European Journal of International Relations 16(2): 197–221. Schreurs, M.A. and Tiberghien, Y. (2007) ‘Multi-Level Reinforcement: Explaining European Union Leadership in Climate Change Mitigation’, Global Environmental Politics 7(4): 19–46. Seville, C. (2009) EU Intellectual Property Law and Policy, Cheltenham, UK: Edward Elgar. Skodvin, T. and Andresen, S. (2006) ‘Leadership Revisited’, Global Environmental Politics 6(3): 13–27. Stein, A.A. (1980) ‘The Politics of Linkage’, World Politics 33(1): 62–81. Underdal, A. (1994) ‘Leadership Theory: Rediscovering the Arts of Management’, in I.W. Zartman (ed.) International Multilateral Negotiation: Approaches to the Management of Complexity, San Francisco: Jossey-Bass, 178–197. van Beuzekom, B. and Arundel, A. (2009) OECD Biotechnology Statistics 2009, Without Place: OECD, www.oecd.org/dataoecd/4/23/42833898.pdf (accessed 23 April 2013). van Schaik, L.G. and Schunz, S. (2012) ‘Explaining EU Activism and Impact in Global Climate Politics: Is the Union a Norm- or Interest-Driven Actor?’ Journal of Common Market Studies 50(1): 169–186.

6

The role of Switzerland in the Nagoya Protocol negotiations

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Marc Hufty, Tobias Schulz and Maurice Tschopp

Introduction1 This chapter aims at understanding the role played by Switzerland in the negotiations on ‘Access and Benefit Sharing’ (ABS) that led to 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. Our objective is to examine how the Swiss position was elaborated and promoted by illustrating selected cases in which it made a difference. Switzerland has been active from the start in the emerging ABS regime at the international level through a committed participation in the negotiations and at the national level by adopting early and innovative measures, such as the implementation of the Bonn Guidelines, the establishment of a national ABS coordination group and a focal point, the development of guidelines for good practices for the academic community, the development of a business management tool, the coordination of Swiss botanical gardens with the International Plant Exchange Network (IPEN) and the revision of its patent law (Kraus and Rüssli 2011). As a ‘small state’, it could be assumed that Switzerland has only a limited influence in international relations. However, we believe the country exerts a notable impact in some international negotiations, especially in environmental negotiations. Potential explanatory factors are both structural and contingent. Internationally, Switzerland has a long tradition of bridge building and mediation, and since the early 1990s, the reinforcement of multilateralism and the promotion of environmental issues have become two priorities of its foreign policy (besides the promotion of peace, human rights, international development and its economic interests, as stipulated by the Swiss Constitution). In the domestic realm, Switzerland has reinforced the national administrations involved in these areas while maintaining its autonomy and the tradition of an inclusive foreign policy. Its foreign policy formation relies on consensus building and federalist traditions that have played a role in the establishment of a cohesive national position but also on a surprisingly ad hoc organization of the national consultation processes and on personal networks. According to this research, Swiss delegations to multilateral environmental negotiations have been characterized by the technical expertise of the delegates,

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Switzerland in the Nagoya Protocol negotiations 97 their motivation and shared values, their participation in the foreign policy formation, their stability over time and the experience gained in the negotiations, as well as their action as knowledge brokers and facilitators. Evidence for this chapter is mainly based on qualitative data provided by a set of semistructured in-depth interviews with key negotiators from Switzerland who represent the federal government as well as different interest groups affected by the international ABS regime, such as scientists, multinational pharmaceutical enterprises and nongovernmental organizations (NGOs). Despite the risk of bias due to the high representation of federal agencies among our interviewees and the unavoidable tendency of any person to present his or her best face, we believe these interviews allowed us to grasp the domestic position formation processes, the negotiation strategies of the Swiss representatives and how they represented Switzerland in the ABS negotiations. The interviews are complemented by primary sources, including internal reports from governmental sources and CBD sources as well as specialized literature. The period covered, 1998 through 2010, can be divided into two stages. In the period 1998 through 2002, negotiations started and the Bonn Guidelines were adopted. The second period, 2003 through 2010, began with the adoption of the terms of reference for an international regime on ABS by the Conference of the Parties (COP) of the Convention on Biological Diversity (CBD) and concluded with the adoption of the Protocol in 2010. As we argue, Switzerland was a leading actor in the early stage of negotiations and a significant contributor in the later stage. The chapter is structured in five sections. The first one briefly presents the historical context in which international negotiations on ABS took place, viewed from Switzerland. The second reviews the literature on small states and identifies the contexts in which small states are able to gain influence in international negotiations. The third section explores Switzerland’s foreign policy to understand the specificities of domestic policy formation and of the Swiss delegations to ABS negotiations. The fourth section presents the Swiss participation in the negotiations with the example of issues for which Switzerland is believed to have made a difference (Bonn Guidelines, disclosure of origin and pathogens), while the final section interprets the results and trends. What we have learned helps to better understand how small states play a role in the special setting of the CBD and its Nagoya Protocol. In certain circumstances and under some conditions, small states can be important players in international settings, capable of intellectual and entrepreneurial leadership.

ABS negotiations The rapid development of biotechnologies and genetic engineering2 has increased the interest in biological and genetic resources (GR)3 and traditional knowledge and their economic value. The increased economic importance of wild and domesticated GR and the rapid loss of biodiversity have led to the adoption of the CBD, opened for signature in 1992 in Rio de Janeiro. Yet the

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debates leading to the CBD became increasingly politicized as biodiversity-rich developing countries became conscious of the potential value of their GR. As ‘exporters’/providers, they decided to demand the principle of sovereignty to be applied to GR, as well as the fair sharing of the benefits resulting from their exploitation. The inclusion of the principles of sovereignty (CBD Art. 3) and of ‘fair and equitable sharing of the benefits arising out of the utilization of biological resources’ (CBD Art. 1 and 15.4) into the CBD were perceived as a success for developing countries. However, soon after the entry into force of the CBD, developing countries organized in the Group of 77 (G-77) complained that the dispositions on ABS were insufficient and needed to be further developed (Tully 2003: 85). Several negotiation processes were conducted in the 1990s and 2000s, not only within the context of the CBD but also in other forums, such as the WTO (World Trade Organization) and WIPO (World Intellectual Property Organization). In the course of these processes, it appeared that the biodiversity negotiations lacked strong leadership. The issues of intellectual property rights (IPR), access to genetic resources and benefit sharing were characterized by strong conflicts. The US, leader in the creation of the CBD, had chosen not to join the CBD, as it did not approve an ABS regime, and to promote IPR in the WTO and WIPO, while Europe maintained a low profile until 2006. This left space for smaller actors and for vertical and horizontal coordination mechanisms, an issue that has not been yet systematically researched. It is against this background that we investigate the case of Switzerland. Surprisingly little has been written on the role of this country, whereas it hosts many organizations linked to biodiversity (such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora [CITES], the Ramsar Convention on Wetlands, the United Nations Environment Program for Europe, the World Wildlife Fund and the World Conservation Union [IUCN]) and had hosted many of the informal and formal activities that led to the CDB (McGraw 2002) and invested a lot in the process. With respect to biotechnology, one would assume that the stakes are rather high. Switzerland is one of the countries most integrated in the world economy and its biotechnology industry is important: Almost 200 Swiss companies are active in production and/or research in biotechnology. The country is known to have developed the highest proportion of biotherapies per capita and, in 2008, it ranked third (after Denmark and Sweden) in venture capital invested in life sciences industries (van Beuzekom and Arundel 2009), especially in medical applications (Lévy and Pastor Cardinet 2007) but also in agriculture. Having developed such a considerable biotech industry, Switzerland had enacted relatively advanced legislation with respect to ABS prior to the adoption of the Nagoya Protocol, and it had long encouraged voluntary efforts of private business and states. An important revision of the Swiss patent law in 2008, for example, obliged patent applicants to declare the source/origin of the biological resource or traditional knowledge used in the development of a product (IPI 2008). In light of this domestic regulation, one may argue that new international

Switzerland in the Nagoya Protocol negotiations 99 regulation could have been in the interest of Swiss industry, since this might secure investments and impose minimum standards on potential competitors (Harris 2008).

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Small states and power What is a ‘small state’? Finding a stable definition has proven elusive. Whatever the criteria (e.g. population, geographical size or economic strength) or the approach (objectivist or psychological), there are exceptions or intellectual difficulties that make any definition unworkable. One pragmatic solution, admittedly controversial, is to consider as such countries that define themselves and are seen by others as small (Hey 2003). This is the option we take here. While it could be debated if Switzerland should be considered an intermediary power when it comes to knowledge, economy and finance,4 the country is politically and strategically considered a small country by scholars and by the Swiss government itself. This was confirmed repeatedly in our interviews. From a realist perspective in international relations, states exert influence5 through ‘hard power’, derived mainly from their military and economic resources. Small states are therefore seen as minor actors that lack influence and autonomy (Browning 2006). They are also perceived as weak in the context of international negotiations. With low bargaining power, they lack the financial means and the critical number of qualified staff that would allow them to follow multiple debates, engage in dialogue with interest groups, compile scientifically persuasive arguments and gain credibility with partners (Panke 2010a). Accordingly, small states would have no option but to jump on the bandwagons of larger states. In contrast, the interest-based literature assumes that negotiations pass through different stages. In given circumstances, notably when negotiations are starting, a ‘veil of uncertainty’ can open ‘windows of opportunity’ for all states to gain influence through leadership, defined as the ‘asymmetrical relationship of influence in which one actor guides or directs the behaviour of others toward a certain goal over a certain period of time’ (Underdal 1994: 178), be it structural (translating hard power in bargaining leverage), entrepreneurial/instrumental (linked to negotiating skills) or intellectual (based on ideas). Any state delegation may thus grow into an ‘entrepreneurial leader’, with the ability to ‘shape the perspectives of those who participate in institutional bargaining’ (Young 1991: 128) or into an ‘intellectual leader’, which ‘relies on the power of ideas to shape the way in which participants in institutional bargaining understand the issues at stake and to orient their thinking about options available to come to terms with these issues’ (Young 1991: 288). The concept of intellectual leadership is related to the cognitivist perspective, for which international institutions are strongly influenced by ideas. Practically, ‘setting the agenda’ (influencing which issues are to be debated), ‘framing the issue’ (influencing the definition of an issue) and influencing the design of solutions through expert knowledge on a specific issue are examples of the ‘power of ideas’ that can be independent of structural power.

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A growing body of literature has examined in depth the different ways small states can gain influence in international negotiations. There is an agreement that entrepreneurial/instrumental and intellectual leadership is especially critical in complex negotiation settings: ‘[B]ased partly on individual skills, status, and effort, it is a role to which representatives of small countries and international secretariats with constrained mandates can also aspire’ (Underdal 1994: 190). By acquiring technical skills and expert knowledge of the substance or by building on their negotiation skills, reputation and ability to foster integrative bargaining, small states can act as ‘smart players’ (Arter 2000), compensating for their relative power deficit (Goetschel 1998). Negotiation skills are crucial when it comes to the capacity to broker a compromise agreement. In certain circumstances such as deadlocks between powerful opponents, ‘representatives of some small countries, particularly those in the middle position on an issue may even find themselves in an advantageous position compared with their great power colleagues’ (Underdal 1994: 190). However, skills alone are not sufficient; representatives are also dependent on their countries’ reputation and resources. Reputation, or the way a state and its representatives are perceived by others, can be an asset in negotiations. It can make a difference when it comes to occupying special positions in the negotiation structure, such as the chair of a committee, itself a potential source of influence. Yet it is a neglected dimension. Reputation is built from multiple interactions in an historical setting and based on factors such as the political positioning but also trustworthiness, technical competence, flexibility and so forth. It also derives from domestic preconditions related to structural factors such as political stability and orientation and more conjectural ones such as the role a government is willing to play in a specific forum, ministerial hierarchies (Panke 2010b), internal coordination (Kassim et al. 2000) and the procedures for selecting representatives and formulating their mandate. In her examination of activities of small member states of the EU, Panke concludes that the more active states all have set up particular structures at the domestic level, such as ‘motivated personnel and no disrupted administrative working conditions’ (2010b: 814) and ‘balanced systems for the development of national positions’ (2010b: 799), believed to be supportive of an effective demeanour at the international level. As a general hypothesis, small states have chances to step up as entrepreneurial and intellectual leaders in given circumstances when negotiation skills and ideas are predominant over structural power. We assume this to be the case early in negotiation processes, when windows of opportunity open for agenda setting or issue framing, in negotiations on highly technical issues (such as environmental negotiations), when ideas and expertise are crucial assets and in processes characterized by strongly opposed coalitions, when spaces for bridge-building skills open. The actual realization of such chances for influencing negotiations depends very much on factors specific to each country, such as its reputation, motivation, the nature of the domestic policy formation process, as well as the qualities of its delegations, as measured by expertise, diplomatic skills, stability, social capital and the like.

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Swiss foreign policy formation Switzerland has always seen itself as a ‘special case’ (Sonderfall ), supported by direct democracy and anxious to keep a distance with an agitated world. Or so goes the myth. It is true that the country never had a colony and that it remained neutral in the conflicts that shook Europe and the world, being active in peace building, humanitarian law and development aid. But in fact, it is only after 1945 that neutrality became a fundamental pillar of the Swiss political system (Goetschel et al. 2005). Since then, it has been central in Switzerland’s foreign policy, along with bilateralism and an active policy of good offices. It explains why Switzerland remained reluctant to participate in multilateral organizations until the beginning of the 1990s. Bilateralism was systematically privileged over multilateralism, as the Swiss government perceived that dealing with partners on a one-by-one basis was more advantageous for a small country (Goetschel 2007). By being independent from the major blocks (it is not a member of the EU), Switzerland could play the role of a bridge builder in the international system, also a way for the country to compensate for its self-perceived smallness and weak structural power. However, neutrality has always been a flexible concept. The country has been unfailingly engaged in favor of economic liberalism, ranking repeatedly among the most open and competitive national economies.6 And despite its reluctance to engage in the UN system, Switzerland has traditionally supported the reinforcement of the international governance system and international community by hosting a range of international organizations and actors.7 The end of the Cold War came as a shock to Swiss foreign policy. The political rent of ‘good offices’ between the world’s major powers was rapidly fading away. Switzerland needed to act swiftly to avoid a situation of self-marginalization. A bell rang when Switzerland ‘lost’ the CBD Secretariat to Canada and the UNFCCC Secretariat to Germany in the 1990s.8 Switzerland adapted to the new circumstances and formally joined the Bretton Woods Institutions in 1992 and the United Nations in 2002 after years of domestic controversy and several referendums. It also set new priorities for its foreign policy, with global governance becoming one of its major strategic domains of action. The central character of environmental protection, as well the necessity to promote solutions at the international level through multilateral collaboration, was reasserted on various occasions by the Swiss authorities (Conseil Fédéral 2010; Federal Council 2000). Yet the activities of the Swiss delegations in multilateral environmental negotiations have not been the subject of much academic interest. To our knowledge, the most comprehensive analysis to date is a chapter by Arquit Niederberger and Schwager (2004), in which they gather various observations and hypotheses on the policymaking procedures for environmental foreign policy. According to them, the most important characteristics of Swiss environmental foreign policy are the central role played by the federal administration, the lack of guidance and absence of clear strategic objectives from the Federal Council and a policymaking process that tends to be personalized and network centred rather than rule and institutions based. We have thus focused our research on the national process

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of the Swiss international position formation addressed further in this section and on Switzerland’s role during the international ABS negotiations, addressed in the next section. The Swiss executive (Federal Council) is composed of seven councillors (ministers), each responsible for a department, composed of several specialized offices with civil servants at their heads. The ministers are elected by and accountable to the Parliament and represent the four major political parties in a coalition. The Swiss presidency, a symbolic function, turns annually among the seven ministers. At a formal level, the Federal Council is in charge of the country’s foreign affairs and one councillor is responsible for the environment. The councillor has a great margin of autonomy but coordinates with his/her colleagues for general political orientations. For international environmental affairs, the councillor usually delegates the formation of the government’s position and current affairs to the Federal Office for the Environment (FOEN)9 and especially to the International Affairs Division, specialized in following international environmental treaties. The federal councillor and the FOEN’s director will at some point participate in international negotiations as such, but they mostly have a coordination and representation role. The International Affairs Division is thus the main body represented in Swiss delegations to the CBD, usually by specialized high-ranking civil servants. Beyond this formal hierarchy, dense horizontal and vertical collaboration mechanisms between various administrative bodies and interest groups form Swiss environmental foreign policy and characterize the representation of Switzerland in international forums. In the case of the ABS negotiations, while the formation of the Swiss position and the representation of Switzerland have been led by the FOEN, the office has never acted independently. Its mandate has been to coordinate with other administrative bodies, mainly with the Federal Institute for Intellectual Property10 and the Federal Office for Agriculture. Other Departments such as the Department of Foreign Affairs and the State Secretariat for Economic Affairs have also been involved, but with a more peripheral role. Interest groups involved in the ABS policy formation have especially included the pharmaceutical industry association Interpharma and advocacy NGOs such as the Bern Declaration. In fact, governmental coordination structures are not overly hierarchical. Consensus building is the rule by tradition but also because no federal councillor or specialized office has a priority over others. In spite of routinized coordination procedures such as interministerial meeting, much is left to an apparently open and rather informal process. The degree of hierarchy remains rather low at first sight. However, the interministerial coordination process relies on a formally defined conflict-resolution mechanism that prescribes how to proceed when a common position cannot be reached. In that case, the different positions are presented formally to the Federal Council, triggering an additional round of negotiations and an eventual political decision. Based on our interviews, it is the strategy of the leading department (FOEN) to avoid this conflict-resolution procedure under most circumstances, which implies dense coordination procedures, often under severe time pressure.

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Switzerland in the Nagoya Protocol negotiations 103 Hence, the low involvement of the Federal Council underlined by Arquit Niederberger and Schwager (2004) is actually corroborated. Nevertheless, they have not fully perceived that this low involvement is to be explained mostly by the intensive coordination and consultation processes taking place during policy formation, involving the offices, technical experts and recognized lobbies (NGOs and business), under the ‘shadow’ of the Federal Council and the Parliament. The legendary length of Swiss decision making could in this regard be seen as a pragmatic way for anticipating and defusing potential conflicts, a valuable asset for a small country dependent on economic niches, opportunities and timely action. The political tradition of consensus building generated the practice of systematically including representatives of ‘stakeholders’ in the coordination processes as well as in the delegations to international conferences. While the role of stakeholder representatives is formally purely consultative, several interviewees have suggested that they also allow to ‘give a pulse’ or a ‘feedback’, allowing negotiators to make sure the positions they defend will be positively received by domestic interest groups, thus facilitating their later endorsement. An additional striking feature of the Swiss involvement in CBD negotiations is the high continuity of the personnel involved. Some of them have been involved for more than 20 years, and some have been members of the Swiss delegation to international meetings for the entire period while also participating in the domestic position formation. They obviously built a recognized expertise not only on the substance but also on procedures. It was mentioned on several occasions that other delegations rely on their expertise, an untested assertion, but the disproportionate share of Swiss chairs of negotiating groups, illustrated in the following section, is an additional hint in that direction. It might also have to do with the fact that Swiss delegations were mostly composed of technical experts and administrators rather than diplomats or lawyers, suggesting that Switzerland favours a negotiation strategy based on technical expertise rather than a political agenda.

Switzerland as an actor in the ABS negotiations According to our research, Switzerland has been influential in the ABS negotiations under the CBD in different ways, especially by chairing meetings and by submitting proposals at key moments. While chairing a meeting in international negotiations is not a proof of influence, being elected as a chair regularly by peers certainly reveals a good reputation, trustworthiness, know-how, commitment— in sum, ‘entrepreneurial leadership’ as defined earlier. Overall, Swiss delegates chaired negotiating groups or meetings in 8 of the 12 ABS meetings that took place between 1999 and 2010,11 co-chairing the Expert Panel in 1999 through 2001 (established by the COP in 1998 with the mandate to develop a common understanding of basic concepts and to explore options for ABS) and, on a regular basis, ‘contact groups’ (ad hoc meetings to resolve particularly contentious issues during and between COPs and the Working Group on ABS—WGABS, which replaced the Expert Panel) in 2002 through 2010. With Norway and Canada, it was one of the most active delegations in that regard. While not all these groups

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were of equal importance, most were in their moment unique and decisive in the process. Switzerland was able to play the role of an intellectual leader by steadily promoting innovative ideas at key moments of the negotiations. This activity has been high throughout the negotiations. During 1999 to 2001, the country was one of the major promoters of the process that led to the adoption of the Bonn Guidelines in 2002, a non–legally binding code of conduct aimed at guiding CBD parties and other stakeholders (such as research institutes, universities and private companies) in the implementation of the ABS provisions of the CBD (see also Wallbott et al., this volume). The Bonn Guidelines were significant for the Nagoya Protocol in two ways: It was the only instrument agreed by the COP to implement ABS dispositions until 2010, and much of its content found its way into the Nagoya Protocol. Already active on the question of ABS, the Swiss government had commissioned in 1998 a national survey on ABS practices of the private sector and research institutions. The poll was presented at COP-4 in Bratislava in 1998. On this basis, the Swiss government had concluded that a code of conduct would be ‘the most flexible mechanism for addressing complex questions related to facilitation of access to genetic resources and the aim of sharing benefits, in a fair and equitable way’ (UNEP 1998: 5). As a consequence, an interministerial group (Institute for Intellectual Property, State Secretariat for Economic Affairs, FOEN) was constituted with the objective of preparing a proposal, the Draft Guidelines (Girsberger et al. 2000), submitted first in October 1999 as a ‘nonpaper’ (an informal proposition) to the first meeting of the Expert Panel held in 1999 in San José, Costa Rica, and then submitted by the Expert Panel to COP-5 in 2000. The Draft Guidelines served as the basis of negotiations during the second meeting of the Expert Panel (March 2001) and in the first meeting of the ABS working group (October 2001) for what became the Bonn Guidelines. According to Dross and Wolff (2005: 15), ‘(t)hese draft guidelines were the foundation on which the Bonn Guidelines were developed’. Overall, the Bonn Guidelines unanimously adopted at COP-6 in The Hague in 2002 differ from the Draft Guidelines, but they bear the Swiss fingerprints. Many articles are directly inspired, and the key contribution made by the Swiss draft is of common understanding (Dross and Wolff 2005; Hodges and Daniel 2005; Siebenhüner and Supplie 2005; Tully 2003). The Draft Guidelines helped to clarify a number of misunderstandings among negotiators and stakeholders (WIPO 2001). After 2002, the context evolved quickly. Unsatisfied with the solution of a code of conduct, developing countries expressed their preference for a legally binding instrument. The Expert Panel was brought to an end and the negotiations were from then on conducted in the more political WGABS. Tensions between industrialized and developing countries were then at their height. While Switzerland had promoted a voluntary approach until 2002, in the name of pragmatism, it accepted the idea of a binding regime expressed by a majority of the parties to the CDB and, on the basis of the very same pragmatism, it was among the parties that tried to build bridges among the negotiating blocks. Between 2003 and 2010, it submitted

20 proposals to be discussed in the WGABS and in sectoral working groups, with the explicit goal of offering concrete solutions to the deadlocks that marked the negotiations, in what amounts to ‘intellectual leadership’, as defined earlier. Two figures, based on a compilation of submissions by parties in ABS negotiations as recorded in WGABS meeting documents, illustrate the number of submissions made by Switzerland in the negotiations that took place in 2003 through 2010. The Swiss delegation was as active as the EU delegation. Although not all submissions were of equal importance, most were substantial and some were decisive. Two examples of this contribution are on the issues of ‘pathogens’ and ‘disclosure of origin’. The ‘disclosure of origin’ is the idea that users have to be transparent on the origin of the GR they are employing in order to enable the fair sharing of benefits. The disclosure of source/origin of GR and traditional knowledge was an element of the WGABS mandate. It became one of Switzerland’s battle horses in ABS and other forums. Already in 2003 and 2004, it had submitted three documents to WIPO’s Patent Cooperation Treaty to define the disclosure of source and include it as an obligation in the Treaty. The same documents were submitted to WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, as well as to the TRIPS Council of the World Trade Organization. Switzerland informed the WGABS about this process on several occasions (UNEP 2005, 2006), proposing the adoption of the principle in the future protocol. It explained its position by

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Figure 6.1 Total number of submissions of various parties in the Working Group on Access and Benefit Sharing (2003–2010) Source: Own compilation from CBD documents.

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Figure 6.2 Number of Swiss submissions in the WGABS (per year from 2003 to 2010) Source: Own compilation from CBD documents.

linking it to the concepts of ‘prior informed consent’ and ‘mutually agreed terms’ that frame ABS governance under the CBD (see especially Tvedt, this volume). Disclosure of source/origin would increase transparency, traceability, technical prior art and mutual trust, and it would become a common norm for different regimes related to GR and traditional knowledge. It also reflected ongoing changes in the domestic patent law of Switzerland. As mentioned previously, Swiss patent law was revised in 2008 to require patent applicants to declare the origin of biological resources or traditional knowledge used in the development of a product (IPI 2011). The disclosure of origin of genetic resources was highly disputed in the international negotiations as it was also in other forums. Similarly, there was no consensus regarding declaring national patent offices as checkpoints. While developing countries preferred patent offices to introduce at least some degree of checks and balances, this idea was rejected by developed countries that rather wanted ‘national competent authorities’ to act as checkpoints (Nijar 2011). Including the phrase ‘the source of genetic resource’ in Article 17.1, which was pushed successfully by the Swiss delegation in the negotiations, as our interviewees confirmed, was arguably the best possible compromise, since it left at least the possibility to declare the national patent offices as checkpoints without explicitly prescribing it. This case can thus be interpreted as a demonstration of intellectual leadership, although it seems to fit some domestic interests of Switzerland in the first place. Given the adoption of that clause in the national patent law, the Federal Institute for Intellectual Property could potentially play the role of a checkpoint without requiring any administrative restructuring or the adoption of new domestic legislation. This is in line with the finding of Arquit Niederberger and Schwager (2004) that Swiss delegates tend to push solutions in international environmental negotiations that would require incremental changes in the Swiss legal and

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Switzerland in the Nagoya Protocol negotiations 107 administrative framework. It is also consistent with the notion of Panke that by having the reputation of being neutral, small states can ‘seemingly defend common interests and, thereby, systematically promote their own policy preferences’ (Panke 2010b: 804). Our second example is the work done on the scope of the ABS protocol, especially on the question of whether to include pathogens in the protocol. Pathogens (biological agents that cause some type of disease in their host, especially viruses, bacteria and fungi; Andersen et al. 2010) entered the CBD debate early after 1992 in connection with invasive species. The question was then addressed by the WHO in 2006 to 2007 on the occasion of the influenza epidemic (‘avian flu’) and Indonesia’s decision to withhold samples of the H5N1 virus from WHO researchers under the principle of state sovereignty for fear that the samples might be used to produce a commercial vaccine that they themselves would not be able to afford. After 2007, the WGABS debated whether human pathogens should fall under the scope of the future protocol. The European Union, as well as several business and pharmaceutical lobbies, was against their inclusion, in opposition to developing countries, which argued that an exclusion would weaken the scope of a protocol. The discussions had come to a standstill. Illustrating this quest for a middle ground, Switzerland proposed at WGABS-8 (2009) to introduce special considerations to access GR in case of important concerns for health of human beings, animals or plants (UNEP 2009) as an alternative to the plain exclusion of pathogens. It was coupled with another proposal put forward by the Swiss Academy of Natural Science,12 which demanded facilitated access procedures to GR for institutions doing noncommercial research, a position supported by the Swiss delegation during the debates. However, it drew scepticism from developing countries on the argument that it was difficult to differentiate commercial from noncommercial research given the complexity of research structures and the potential commercial and unpredictable returns of nonprofit research (Nijar 2011). Nonetheless, research institutions, led by the Swiss Academy of Natural Science, were recognized as stakeholders in the ABS negotiations, with the same status as NGOs and the private sector. Switzerland eventually played a central role at the final stages on these issues, chairing a contact group during COP-10 (2010) aimed at reaching a solution on the question of emergency cases and noncommercial research. The Swiss delegation’s work was recognized in Article 8(a) and (b) of the Protocol, as proposed by Japan on the last day of negotiations, on special consideration that fosters facilitated access procedures in cases of health emergencies and for noncommercial research. This intermediary solution had meanwhile become satisfying for both developing and industrialized countries. On the highly divisive issue of the pathogens, Switzerland thus played the role of an ‘intellectual leader’ by facilitating a solution. Swiss delegates also showed traits of ‘entrepreneurial leadership’ by promoting their idea both through official proposals in the WGABS sessions (UNEP 2009), and by co-chairing a group on this specific issue. As demonstrated by Orsini and Morin (2011), an additional feature of the Swiss position is its especially high level of coherence between different forums

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and regimes, such as the World Trade Organization, the World Health Organization and the Food and Agriculture Organization, or the Cartagena Protocol. The explanation is simple: The delegations are organized in the same fashion for different forums, comprising representatives from several offices and often the same people, who have a high influence on the Swiss position formation. To caricature, concerning GR and intellectual property rights, the same team was negotiating in parallel in the different forums. As we have seen, being a small country is an advantage in this aspect: coordination is stable, dense, informal and efficient.

Discussion and conclusion ABS emerged as a global issue in the context of the conflict between industrialized and developing countries over GR and traditional knowledge. Finding solutions to accommodate the interests of both sides was and remains a complex process. Switzerland, given the weight of its life industry and research, as well as its pragmatic tradition in favour of free trade, had a strong interest in promoting a smooth development of the issue. At the same time, changes in the European geostrategic configuration had encouraged a reorientation of its foreign policy towards the promotion of global environmental governance. Switzerland thus proportionally invested huge resources in the ABS negotiations. As Siebenhüner and Suplie (2005: 513) have stressed, the early phase of negotiations on ABS (1998–2002) ‘was characterized by an overall uncertainty in decision-making and lack of direction within the negotiation process’. There was no strong leadership to promote an international ABS regime or to implement the ABS provisions of the CBD, especially not from the major industrialized countries. This absence of leadership, as well as the chaotic context of the negotiations, constituted a window of opportunity for Switzerland, which was able to propose innovative ideas and pragmatic solutions. The evidence we have collected and presented indicates that the broad consultation process at the domestic level in combination with the informal coordination of specialized offices was a crucial precondition to detect opportunities for taking action and differentiate good from bad opportunities. The most obvious example is the Bonn Guidelines. They emerged out of a domestic survey among scientists and enterprises in Switzerland, which pointed to the need for a better definition of important but badly understood concepts. In addition, the close informal collaboration between offices, each with specialized technical expertise and cumulating together a huge experience of international environmental regimes, was key to the crafting of the Draft Guidelines. The proposal appeared to be balanced and was presented at the right time. In sum, the domestic coordination process supported the strategy of intellectual leadership at the international level. For the later negotiation stage (2002–2010), we identified two instances in which the Swiss delegation left a mark. Both examples (pathogens and the declaration of source) can be interpreted as bespoken compromises that hit the mark and were accepted by otherwise deeply divided negotiators. Interviews suggest

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Switzerland in the Nagoya Protocol negotiations 109 that the Swiss inclusive policy formation process helps to forge compromises in general and that it certainly was important for the Swiss delegation to be informed about the various positions before entering the negotiations in order to be able to put forward a proposition acceptable by different parties in due time. Hence, the nonhierarchically structured and virtually autonomous domestic process may also lead to rather decentralized elaboration of very specific issues, for which only a few delegates may have sufficient expertise. The only restriction in such cases (for which no explicit policy guidance of the government is given) seemingly is the government’s generally applicable red line that nothing shall be negotiated that would require the revision of domestic legislation. The experts in the Swiss delegation have considerable discretion (but also heavy responsibility) to find proposals that will be well received by the international community and still be compatible with existing domestic regulation. Our analysis shows that a small country can influence international environmental negotiations, to a limited extent and in adequate circumstances, by following a mediating and bridge-building strategy on the one hand and by taking advantage of windows of opportunity to act as an intellectual leader on the other hand. We observed three particular aspects of Swiss foreign policy making, and the related domestic coordination processes in particular, that contributed to the success of the Swiss delegation at the ABS negotiations. First, the broad consultation process aimed at bringing as much expertise as possible from nonstate actors makes it easier to anticipate potential opposition and therefore to elaborate a proposal acceptable to most parties and to act as a bridge builder. The Swiss consensus-building tradition can be useful at the international level, as it opens the expertise available to negotiators to committed nonstate actors. Second, the high continuity of the personnel involved, not only from the ministries but also from the nonstate actors, significantly adds to the consistency of the Swiss positions, including across different negotiation forums, as the negotiators often represented the country in other forums of the ‘biodiversity regime complex’ (WTO, WIPO, FAO). Third, a well-structured but informal interministerial/interoffice consultation process, backed by formal procedures as a last resort, facilitates interpersonal relations of trust; it is perceived by interviewees to be a highly efficient decisionmaking procedure. Hence, we are more optimistic than Arquit Niederberger and Schwager (2004) with respect to the domestic coordination process related to foreign environmental policy we have examined or more optimistic than Goetschel and Michel (2009), who made a generally critical diagnosis of the national position formation processes with respect to international peace-promoting policy. Although the domestic policy formation process seems to be ad hoc when viewed from the outside, from what we could observe, the process is efficient, although in a highly informal way. Consequently, one might conclude that the informally organized coordination process at the domestic level was successful in that it guaranteed not only the high autonomy of the ministries involved and a relatively open negotiation mandate but also the coherency of the Swiss position and, making due allowance, enabling Switzerland to ‘punch above its weight’ in the ABS negotiations.

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Notes 1 This chapter benefited from the comments of C. Betzold, L. Goetschel, S. Justiniano, C. Norloff, S. Oberthür, J. Pożarowska and K. Rosendal. With many thanks. 2 Biotechnology: the modification of living organisms to alter their properties. Genetic engineering: the use of molecular biology to modify the genome of a living organism, with the intention of altering its properties. 3 Genetic resources are defined in Article 2 of the CBD as genetic material of actual or potential value. Biological resources include genetic resources, organisms or parts thereof, populations or any other biotic component of ecosystems with actual or potential use or value for humanity (ibid.). 4 Switzerland has a population of eight million, yet the seven indexed Swiss universities rank in the 200 world top universities in Shanghai, Times and QS rankings, while the country ranks No. 6 in the absolute number of Nobel Prizes, http://www.bbc.co.uk/ news/magazine-11500373 (accessed 14 April 2012) and No. 9 in the number of patents granted, http://www.wipo.int/ipstats/en/statistics/patents (accessed 14 April 2012). It also ranks No. 7 for the number of multinational firms in the Fortune 500 Index http:// money.cnn.com/magazines/fortune/global500/2011/index.html (accessed 5 September 2011), and Swiss banks manage 27 per cent of the world’s cross-border private assets, Swiss National Bank http://www.snb.ch (accessed 12 April 2012). 5 Power is the set of resources at the disposal of an actor, while influence is the capacity of an actor to modify another actor’s behaviour (Betsill and Corell 2008). 6 WEF Global Competitiveness Index, http://www.weforum.org (accessed 5 September 2011). 7 It hosts 25 international organizations headquarters, 7 quasi-intergovernmental organizations and 250 UN-recognized NGOs; http://www.eda.admin.ch/eda/en/home/topics/ intorg/inorch.html (accessed 5 September 2011). 8 The provisional CBD and UNFCCC (United Nations Framework Convention on Climate Change) secretariats were hosted in Geneva until it was decided to move them in 1995, following competitive processes at CBD COP-2 and UNFCCC COP-1. 9 From 1989 to 2006, the FOEN (BAFU in German) was named the Swiss Agency for the Environment, Forests and Landscape. 10 The Institute for Intellectual Property, created in 1888, is a legally independent organization, responsible for helping the industry with intellectual property rights issues. It acts contractually (under a service agreement) as a federal agency for various departments, advising the Federal Council, preparing related legislative projects and representing Switzerland in some international fora. 11 We have taken into account the meetings for which comprehensive official reports and reports of the Earth Negotiations Bulletin (International Institute for Sustainable Development) were produced, basically the Expert Panel, WGABS and COPs. 12 The Swiss Academy of Natural Science is a nonprofit organization created in 1815 to encourage science. With a network of 35,000 scientists, it is recognized as a public utility and subsidized by the Federal Secretariat of Education and Research.

Bibliography Andersen, R., Tvedt, M.W., Fauchald, O.K., Winge, T., Rosendal, K. and Schei, P.J. (2010) International Agreements and Processes Affecting an International Regime on Access and Benefit Sharing under the Convention on Biological Diversity, Fridjof Nansen Institute Report 3/2010, Lysaker, Norway: Fridjof Nansen Institute. Arquit Niederberger, A. and Schwager, S. (2004) ‘Swiss Environmental Foreign Policy and Sustainable Development’, Swiss Political Science Review 10(4): 93–123.

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Switzerland in the Nagoya Protocol negotiations 111 Arter, D. (2000) ‘Small State Influence within the EU: The Case of Finland’s “Northern Dimension Initiative” ’ , Journal of Common Market Studies 38(5): 677–697. Betsill, M.M. and Corell, E. (2008) NGO Diplomacy: The Influence of Nongovernmental Organizations in International Environmental Negotiations, Cambridge, MA: MIT Press. Browning, C. (2006) ‘Small, Smart and Salient? Rethinking Identity in the Small States Literature’, Cambridge Review of International Affairs 19(4): 669–684. Conseil Fédéral (2010) Rapport sur La Politique Extérieure 2010, Berne: Département Fédéral des Affaires Étrangères de la Confédération Suisse. Dross, M. and Wolff, F. (2005) New Elements of the International Regime on Access and Benefit-Sharing of Genetic Resources—The Role of Certificates of Origin, BfN Skripten No. 127/2005, Bonn: Federal Agency for Nature Conservation. Federal Council (2000) Foreign Policy Report 2000, Presence and Cooperation: Safeguarding Switzerland’s Interests in an Integrating World (Translation), Berne: Swiss Federal Department of Foreign Affairs. Girsberger, M., Kopše, A. and Pythoud, F. (2000) Draft Guidelines on Access and Benefit Sharing Regarding the Utilisation of Genetic Resources, UN Doc. UNEP/CBD/COP/5/ INF/21, 3 April 2000, Convention on Biological Diversity. Goetschel, L. (1998) ‘The Foreign and Security Policy Interests of Small States in Today’s Europe’ in Goetschel, L. (ed.) Small States Inside and Outside the European Union: Interests and Policies, Boston: Kluwer, 13–31. Goetschel, L. (2007) ‘The Wider Setting of Swiss Foreign Policy’ in Church, C.H. (ed.) Switzerland and the European Union: A Close, Contradictory and Misunderstood Relationship, London: Routledge, 169–185. Goetschel, L., Bernath, M. and Schwarz, D. (2005) Swiss Foreign Policy: Foundations and Possibilities, London: Routledge. Goetschel, L. and Michel, D. (2009) Der aussenpolitische Handlungsspielraum der Schweiz als Nichtmitglied der Europäischen Union: ein Blick auf einige Aspekte der Friedensförderung, Basel: Europainstitut der Universität Basel. Harris, P.G. (2008) ‘Bringing the In-Between Back in: Foreign Policy in Global Environmental Politics’, Politics & Policy 36(6): 914–943. Hey, J. (ed.) (2003) Small States in World Politics: Explaining Foreign Policy Behavior, Boulder, CO: Lynne Rienner. Hodges, T. and Daniel, A. (2005) ‘Promises and Pitfalls: First Steps on the Road to the International ABS Regime’, Review of European Community and International Environmental Law 14(2): 148–160. IPI (2008) Examen quant au fond des demandes de brevet nationales: Directives, Berne: Institut Fédéral de la Propriété Intellectuelle. IPI (2011) Examen quant au fond des demandes de brevet nationales: Directives, Berne: Institut Fédéral de la Propriété Intellectuelle. Kassim, H., Peters, G. and Wright, V. (eds.) (2000) The National Co-ordination of EU Policy, Oxford, UK: Oxford University Press. Kraus, D. and Rüssli, M. (2011) ‘Access and Benefit Sharing User Measures in Switzerland’, Journal of World Intellectual Property 14(1): 54–74. Lévy, M. and Pastor Cardinet, E. (2007) R-D en biotechnologie en Suisse: Indicateurs ‘Science et Technologie’, Neuchâtel: Actualités Office Fédéral de la Statistique (OFS) Économie Nationale. McGraw, D. (2002) ‘The Story of the Biodiversity Convention’ in LePrestre, P. (ed.) Governing Global Biodiversity, London: Ashgate, 7–38.

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112 Marc Hufty, Tobias Schulz and Maurice Tschopp Nijar, G.S. (2011) The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: An Analysis, CEBLAW Brief, Kuala Lumpur: Centre of Excellence for Biodiversity Law (CEBLAW). Orsini, A. and Morin, J.-F. (2011) Linking Regime Complexity to Policy Coherency: The Case of Genetic Resources, Global Re-ordering Revolution through European Networks, GR:EEN Working Paper Series No. 15, www.greenfp7.eu/papers/working papers (accessed 27 March 2013). Panke, D. (2010a) ‘Good Instructions in No Time? Domestic Coordination of EU Policies in 19 Small States’, West European Politics 33(4): 770–790. Panke, D. (2010b) ‘Small States in the European Union: Structural Disadvantages in EU Policy-making and Counter-strategies’, Journal of European Public Policy 17(6): 799–817. Siebenhüner, B. and Suplie, J. (2005) ‘Implementing the Access and Benefit-sharing Provisions of the CBD: A Case for Institutional Learning’, Ecological Economics 53(4): 507–522. Tully, S. (2003) ‘The Bonn Guidelines on Access to Genetic Resources and Benefit Sharing’, Review of European Community and International Environmental Law 12(1): 84–98. Underdal, A. (1994) ‘Leadership Theory: Rediscovering the Arts of Management’, in Zartman, I. (ed.) International Multilateral Negotiation: Approaches to the Management of Complexity, San Francisco: Jossey-Bass Publishers, 178–197. UNEP (1998) Access to Genetic Resources and Means for Fair and Equitable Benefit Sharing. Case study submitted by Switzerland, UN Doc. UNEP/CBD/COP/4/INF.16, 4 March 2008, Convention on Biological Diversity. UNEP (2005) Proposals by Switzerland Regarding the Declaration of the Source of Genetic Resources and Traditional Knowledge in Patent Applications, UN Doc. UNEP/ CBD/WG-ABS/3/INF/7, 31 January 2005, Convention on Biological Diversity. UNEP (2006) Measures to Support Compliance with Prior Informed Consent of the Contracting Party Providing Genetic Resources and Mutually Agreed Terms on which Access was Granted in Contracting Parties with Users of such Resources under Their Jurisdiction, UN Doc. UNEP/CBD/WG-ABS/4/INF/12, 17 January 2006, Convention on Biological Diversity. UNEP (2009) Compilation of Submissions by Parties, Governments, International Organizations, Indigenous and Local Communities and Relevant Stakeholders in Respect of the Main Components of the International Regime on Access And Benefit-Sharing Listed in Decision IX/12, Annex I, UN Doc. UNEP/CBD/WGABS/7/INF/1, 2 February 2009, Convention on Biological Diversity. van Beuzekom, B. and Arundel, A. (2009) OECD Biotechnology Statistics 2009, Paris: Organization for Economic Cooperation and Development (OECD). WIPO (2001) Draft Guidelines on Access and Benefit Sharing Regarding the Utilisation of Genetic Resources. Document Submitted by the Government of Switzerland, WIPO Doc. WIPO/GRTKF/IC/1/9, 27 April 2001, World Intellectual Property Organization. Young, O. (1991) ‘Political Leadership and Regime Formation: On the Development of Institutions in International Society’, International Organization 45(3): 281–308.

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Interviews Philippe Roch, ex-Head FOEN, 13 October 2009 François Pythoud, Federal Office for Agriculture, ex-FOEN, 9 June 2010 Beat Nobs, Ambassador, 7 June 2010 François Meienberg, Bern Declaration, 20 May 2011 Marco D’Alessandro, FOEV, 3 June 2011 Martin Girsberger and Benny Müller, Institute for Intellectual Property, 8 June 2011 Sylvia Martinez, Swiss Academy of Natural Science, 15 June 2011 Kaspar Sollberger, FOEV, 16 June 2011 Axel Braun, Roche, 9 July 2011 Peter Johan Schei, FNI, 28 November 2011

7

Goals, strategies and success of the African Group in the negotiations of the Nagoya Protocol

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Linda Wallbott Introduction1 The African Group (AG) is a recognized regional group within the United Nations (UN) system. At the time of the Nagoya negotiations in October 2010, it comprised more than 50 members, most of which are rich in biodiversity but lack the industrial capacity to process these resources in own research and development activities. Faced with the continuous challenge of limited financial and human resources, the issue-specific consolidation of the coalition as regards the negotiations on access and benefit sharing (ABS) in the framework of the Convention on Biological Diversity (CBD) has been facilitated especially by the development of shared understandings of key terms within the policy area. This in turn equipped the coalition with the ability to engage in the multilateral negotiations on an ABS Protocol with substantial weight. Herein, the main interests of the Group related above all to achieving legal bindingness and a wide scope of the future agreement combined with an effective compliance mechanism. The Group’s claim to codify benefit sharing also for new and continuing utilization of genetic resources (GR) for which prior informed consent (PIC) is not available (anymore) was a distinctive feature of its position. A case in point is sharing of benefits that arise from research and development based on a resource that was accessed pre-CBD (including in colonial times) but then stored ex situ, for example in gene banks or botanical gardens. In the end, the AG was able to promote the compromise idea of a Global Multilateral Benefit-Sharing Mechanism into the Protocol. This should secure benefit sharing for those situations in which more than one party or community holds the respective resource and for those that cannot be safeguarded by PIC. Building upon international relations negotiation theory, presented in the next section, this chapter analyses the role of the AG during the ABS negotiations of the Nagoya Protocol, focusing on the ‘internal’ perspective of the Group’s coalition-building activities as well as its negotiation strategies and arguments in the broader CBD context. The final section of the chapter assesses in how far the substance of the Nagoya Protocol can be seen as a success for the AG and what it implies for the Group’s position in future international ABS governance.

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Theoretical approaches to the study of weak states and coalitions in international negotiations For a long time, international politics have been regarded as being largely predetermined by the given power and situation structure (the available choices and constraints) and the ensuing constellation of state preferences within the international system. Thus, approaches such as (neo-)realism render material and military resources to be the determining factors that shape the outcome of multilateral negotiations. In this perspective, states that are poorly equipped with these resources (like developing countries) are generally exposed to major powers’ abilities, for example, to make side payments and to effectively deploy cross-institutional strategies in situations of institutional complexity (Drezner 2009). They focus on structural/coercive leadership not readily available for weak states. These could only align in big numbers in order to form a blocking coalition in those negotiations that work—like the CBD—with consensus or unanimity (Hampson and Hart 1995: 29–30). From this perspective, it would seem implausible that the AG could have affected the outcome of the ABS negotiations substantially. However, such a perspective would not allow us to completely capture the dynamics of the negotiation process and the possibility of material power resources being mediated by the issue area in which negotiations take place (ibid.: 5), their organization and institutional setting (Johnston 2001), the generation of leadership to serve as a focal point for positions to coalesce around (Young 1991) or the impact of normative framings within negotiations (Deitelhoff 2009). Accordingly, various studies have challenged the realist notion and have shown that also small states may affect international negotiations beyond their assumed weight (for example, Deitelhoff and Wallbott 2012) by building on constructivist notions of international society’s structure. One basic assumption of these approaches is to ascribe a constitutive function to norms (understood as ‘collectively held or ‘intersubjective’ ideas and understandings on social life’: Finnemore and Sikkink 2001: 392), which are considered not only to constrain the actors’ scope of actions but also to reciprocally constitute their interests and identity (March and Olsen 1998: 951). In a critical reading, social institutions and political settings like negotiations in the UN are regarded as contested terrains in which norms reveal their ‘dual quality’ (Wiener 2007: 49) as both structuring and being socially constructed. In this context, prominent explanations of norm and policy diffusion have focused on the role of norm entrepreneurs (Finnemore and Sikkink 1998; cf. also Florini 1996), that is, collective or individual actors that promote the adoption of new norms by calling attention to issues or by ‘creating’ them through reframing. Their strategies include the initiation of learning processes through information dispersion, issue linkage and shaming and blaming, the mobilization of networks and establishment of coalitions by build-up of trust and long-standing bonds (Ostrom 1990: 43). In this sense, norm entrepreneurs can exert leadership of a nonstructural type in various ways, whereas they need some kind of organizational platform from and through which they promote their interests (Finnemore and Sikkink 1998: 899).

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First, intellectual/directional/ideational leadership (cf. Grubb and Gupta 2000; in the following: intellectual) helps shape the perspectives of participants in institutional bargaining as to what might be desirable and feasible. This ‘raises the moral standard against which others will be judged’ (Gupta and Ringius 2001: 282). Correspondingly, norm entrepreneurs create an interpretative framework in which certain issues are presented as problematic and illegitimate and propose morally adequate solutions to this problem. Second, they practice entrepreneurial/ instrumental leadership (in the following: entrepreneurial) by making use of diplomatic and political skills, including integrative bargaining, in crafting an agreement, issue linkage and build-up of coalitions (see also the discussions of leadership in Hufty et al., this volume; Oberthür and Rabitz, this volume). From this perspective, African states could have acted through the AG in the Nagoya negotiations not least because they shared similar moral principles and perspectives on the issues at stake (Hopmann 1996: 260–61). The coalition, then, might have served as an organizational platform through which these principles could be further developed and promoted, equipping the coalition with the preconditions to exert nonstructural power in the UN negotiations. Traditionally, though, the norm entrepreneur-literature has focused on the impact of nongovernmental organizations (NGOs), whereas states have, mostly been depicted as norm receivers responding to the demands and contestation of transnational advocacy networks and epistemic communities (Wunderlich 2013). Correspondingly, case studies on single states or state coalitions as norm entrepreneurs in international politics are still rare (ibid.). Thus, the following analysis of the AG’s role and strategies in the Nagoya Protocol negotiations provides for a contribution to the growing literature of weak states as norm entrepreneurs.

The African Group: Inception and consolidation of the coalition The AG is the UN regional group with the largest number of member states. While these are heterogeneous in several respects, most of them share not only weak economic prosperity but also a sense of historical injustice, as Africa’s resources were often pillaged during colonial times. Hence, the Group, being composed of biodiversity-rich provider countries,2 saw ABS as a way to remedy this historical injustice through a recognition of their rights over African GR and the fair sharing of benefits from their utilization (Interview 2012). Emergence and consolidation of pan-African cooperation on ABS After the seventh Conference of the Parties to the CBD (COP-7) had adopted the mandate to negotiate an international ABS regime in 2004, African stakeholders undertook regular efforts to ‘foster an open exchange [. . .] based on existing local, national and regional [ABS] initiatives and experiences and to create an understanding how local, national and international regulations depend on each other to be effective in implementing the third objective of the CBD’,3 kicking off at the Regional ABS Capacity-Building Workshop for Eastern and Southern Africa in Addis

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Goals, strategies and success of the African Group 117 Abeba in 2005.4 The recommendations that came out of this event (CBD 2005) provided the basis for the African Common Vision on ABS, which was further elaborated and finalized during the first pan–African multistakeholder workshop in Cape Town in November 2006. It combined the vision of all the stakeholders present at the Cape Town meeting, including governments, NGOs, indigenous and local communities (ILCs) and business and aimed ‘at defining the desired state of ABS in Africa through a concrete description of how ABS should ‘look and feel like’ in 2010’.5 During that meeting also, the ABS Capacity-Building Initiative for Africa was agreed, involving Dutch and German Development Cooperation. The Initiative was officially launched the following year at COP-86 and facilitated the development of a common position for the international ABS negotiations by providing an institutional framework for exchange. It also organized trainings and preparatory meetings for negotiators, high-level events as well as pan–African and multistakeholder workshops. Important for coalition building was the overcoming of the French-English language barrier among AG members (Interview 2012). In this regard, the Initiative helped develop a pan–African position through organizing capacity-building workshops and stakeholder consultations separately for Francophone and Anglophone Africa. The results—where they pertained to the negotiations—were combined, developed into a common African position and further discussed at African workshops and training courses with either a regional or issue focus. The Initiative again provided interpreters at these workshops as well as for the two-day African coordination meetings convened before every negotiating session of the Ad Hoc Open-Ended Working Group on Access and Benefit Sharing (WGABS; Interview 2012). This collective learning process helped create common technical and conceptual knowledge, which started to yield effect in terms of the coalition’s voice and visibility on the international stage in 2008. At COP-9, for the first time, a statement on behalf of the AG was made in the ABS negotiations. Before that, in the years 2004 through 2008, only a handful of individual statements of African states had been recorded—compared to around 50 submissions by members of the coalition of non–European industrialized countries (JUSCANZ), around 40 submissions by members of the Like-Minded Megadiverse Countries (LMMC) and more than 10 submissions by the European Community/Union in the same period.7 Also, between the establishment of the WGABS in 2001 and COP-10 in 2010, more than 20 international meetings related to the ABS negotiations had taken place (see Wallbott et al., this volume). To cover all these meetings unilaterally would have been highly problematic for many AG members. Hence, the analysis of the issues on the agenda and the identification of possible solutions at group level were crucial for entering into text-based negotiations at UN level. Thus, in 2008, the AG appointed a team of drafters from different African regions to elaborate the AG’s response to the call by COP-9 for parties to submit operational text for further negotiations (Decision IX/12). The resulting submission, reviewed at the Third Pan African Capacity Building Workshop in November 2008, was then included in the documents for WGABS-7 in April 2009 (see section on ‘Main goals of the African group’ below).8

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118 Linda Wallbott In the run-up to the Nagoya Conference, other pan–African workshops were held in Cairo in 2009 and in Namibia in March 2010, focusing on operational text for the international negotiations. Finally, the African Ministers of Environment at a meeting in Bamako in June 2010 renewed their commitment to finalizing the negotiations for the ABS Protocol at the resumed ninth meeting of the WGABS in Montreal in July 2010, in time for signature at COP-10 of the CBD (CBD 2010b). Next to this substantial development of the AG’s issue-specific platform character, the AG actively strengthened expertise and linkages with a broader public, again supported by the ABS Initiative. Thus, issue-specific consultations like ‘ABS and Business’ or ‘ABS and ILCs’ were organized with participation of key African negotiators, and the AG—markedly different from other negotiating groups—would allow African ILC representatives and lawyers, for example from the International Indigenous Forum on Biodiversity (IIFB), to participate in its coordination meetings (Interview 2012). Even though the Group would remain heavily dependent on capable individuals, these activities contributed to building up the AG’s knowledge and argumentative resources at large. Given the high level of issue-specific scientific and technical abstraction and the expertise required, the pooling of economic, technical and human capacities enabled the coalition to manage the complexity of the negotiations. At the same time, it is well known from coalition theory that the flexibility of a coalition correlates negatively with its size and heterogeneity (Narlikar and Tussie 2004). The ability to maintain cohesion is more difficult the more heterogeneous the interests and values of the coalition members are. While allying in big numbers would turn out as a way to get weight behind the Group’s substantial claims in the negotiations, the AG thus faced internal conflicts during the Nagoya process, not least because of overlapping solidarities of some members with other coalitions like the LMMC (see Wallbott et al., this volume). Whereas AG members felt morally united and shared similar moral principles and perspectives on the issue, two different positions nevertheless emerged. Some felt that the Group should not compromise in the negotiations, because ABS was about finally compensating for past wrongdoings. Other more pragmatic members advocated a rather integrative approach, emphasizing win-win solutions instead of an ideologically driven agenda. The strategy should be informed by what was practically feasible and what other countries would also deem as fair. In the end, the AG, led by a ‘few key issue leaders who had a firm grasp on the substance of the negotiations and who managed to convince and take with them the other less well-versed members of the AG’ (Interview 2012; see also section on ‘Leadership and ‘Realpolitik’’ below), was able to find a middle way between these views and to maintain its unity. Hence, the issue-related consolidation of the coalition and its exposure in the negotiations turned out to initiate a reflexive learning or ‘socialization’ process. Many of the early positions within the AG were driven by ideology. But these positions got more nuanced and oriented towards technical solutions as the negotiations proceeded, since the AG itself ‘learned’ that not all of its early positions were implementable (Interview 2012).

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Main goals of the African Group in the negotiations of the Nagoya Protocol One position from which the AG did not depart, however, was that an integrated approach was needed to realize the Convention’s three objectives: the conservation of biological diversity, sustainable use of its components and the fair and equitable sharing of benefits arising from GR. Regarding the key issues in the negotiations (see Wallbott et al., this volume), the AG aimed for a substantial, legally binding protocol to apply to all GR and associated traditional knowledge (TK). Of highest priority to the AG was the issue of scope: The Protocol should cover GR accessed in areas beyond national jurisdiction like the high seas or the Antarctic Treaty Area (geographical scope); GR for which PIC could not be obtained anymore (temporal scope); and derivatives, pathogens, products and subsequent uses (economic scope). Initially, the AG had argued that the agreement should cover access to biological resources in order to guarantee the highest compliance level possible (Interview 2012). Background to this was the presumption that an effective ABScompliance mechanism could not be established if it built on language of Article 15 of the CBD. This Article talks about ‘genetic material’, but the implications of this concept were unclear and widely disputed among parties and observers.9 In early 2010, though, some AG members began to argue for more flexibility in order to facilitate compromises with other parties. As a result, the AG shifted its focus regarding the envisaged scope of the future Protocol to genetic resources. Importantly, this move was accompanied by establishing a common understanding (which had emerged through the internal processes described above) that access in the protocol should mean utilization of GR—thereby including derivatives, products and pathogens—and not only sampling of resources in areas of origin (for a general discussion of this point, see Tvedt, this volume). The AG asserted that value adding through biotechnological processes in industrialized countries and the creation of goods was dependent on resource depletion in developing countries. Accordingly, it would thwart the CBD’s third objective to claim that benefit sharing was necessarily symmetrical to access based on PIC of a Party (AG 2012). Restricting benefit sharing of the international regime to GR accessed post–CBD would limit the emerging system considerably, as most of the GR that have been documented were accessed pre–CBD but stored, for example, in botanical gardens and gene banks and potentially processed ex situ (until) today. Thus, the aforementioned AG submission to WGABS-7 in 2009 (CBD 2009b) was specifically directed to pre–CBD accessions. In this regard, the AG was asking for benefit sharing from continuing uses of GR after the entry into force of the CBD (without PIC). Furthermore, the AG argued that PIC be secured, mutually agreed terms (MAT) be negotiated and benefits shared for new uses of GR and associated TK acquired pre–CBD. Even if a biological resource were accessed as commodity, its (subsequent) utilization as a GR would be covered by the Protocol. The same would go for resources accessed in areas beyond national jurisdiction (high seas, Antarctica). This emphasis on utilization of GR as the basis for benefit

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sharing should, from the AG’s view, facilitate parties’ agreement on a meaningful compliance mechanism, as it would stop discussions on the different characteristics of genetic material or biological resources respectively (Interview 2012). Importantly, the AG, unlike industrialized countries, felt this option was not retroactive application of a treaty as prohibited by Article 28 of the Vienna Convention on the Law of Treaties. Also at WGABS-7, the AG had developed the idea of a multilateral mechanism (AG 2012), aiming at benefit sharing also for those GR that had been accessed in the ‘grey period’ (Chiarolla 2010: 8) between the entry into force of the CBD in 1993 and the entry into force of the ABS Protocol (see also Buck and Hamilton 2011: 59). In 2010, the Group then suggested to create a multilateral fund (Global Multilateral Benefit-Sharing Mechanism) to complement the bilateral contractual ABS system (Burton 2010). This Global Mechanism should facilitate sharing of benefits arising from the utilization of GR that could not be related to a known providing authority (PIC not available and/or from an area beyond national jurisdiction) or that is obtained by more than one country or local community as source of origin (transboundary situations). Its revenues should then be used to support conservation and sustainable use of biodiversity and the sustainable use of its components. In line with its understanding of ‘access as utilization’, the AG opposed the introduction of international access standards as a precondition for compliance with national ABS legislation, as desired, for example, by the European Union (ENB 2009). Importantly, the AG called for the protection of TK and indigenous practices through mandatory PIC and access to be in accordance with ILC’s practices and procedures.10 Finally, it would be worthwhile to develop accessed material jointly by providers and users, to bridge the technology gap (ENB 2010a), thereby taking into account Article 12(b) of the CBD that aims at promoting and encouraging research also to contribute to biodiversity conservation and sustainable use (ENB 2010b). In line with these considerations, the AG wanted to link access standards and user measures so that the burden of ensuring compliance would not only rest with provider countries. This should include strong checkpoints in both provider and user countries and a certification scheme to verify PIC and MAT, as well as a dispute settlement procedure. The rights of ILCs should be effectively safeguarded, including through compliance measures relating to TK—as part of a general comprehensive and strong compliance system—and specific rules dealing with nonparties. Benefits should be shared directly with the community providing the (traditional) knowledge but through processes overseen by national governments and according to national legislation (ENB 2010a). Finally, the AG argued for a mandatory disclosure requirement in patent applications. This latter issue points directly to the Protocol’s relation to other agreements. Here, as already indicated, the AG objected its subordination to other relevant institutions (CBD 2009b). Not only was the AG concerned that industrialized countries would move matters of intellectual property rights (IPR) to other arenas like the World Trade Organization (WTO); regarding the International Treaty on

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Plant Genetic Resources for Food and Agriculture (ITPGR), the AG had, in its 2009 submission, suggested to exclude from the ABS provisions under the CBD those species that were already covered through the benefit-sharing provisions of the ITPGR (CBD 2009b: 18). But there was some general scepticism regarding the ITPGR’s ability to prevent transnational corporations from patenting genetic material accessed through the Treaty’s multilateral system. The same scepticism existed with respect to other international organizations such as the WHO regulating pathogens—potentially forcing developing countries to negotiate ABS regulations for genetic material in several other forums (Rosendal 2011: 72).

Strategy and role of the African Group in the Nagoya Protocol negotiations Outreach and networks The AG kept on pursuing outreach and networking in the run-up to the Nagoya conference to reach its goals. At party level, though, it did not rely exclusively on its traditional basis anymore; internal discussions had purported that in the ABS negotiations, a G77 coalition could be a liability rather than an asset since some countries ‘had the luxury of delaying the process—a luxury that Africa did not have’ (Interview 2012). Hence, while the G77 had at earlier times been rather successful in global environmental arenas in general and the CBD in particular (Najam 2002; Rosendal 2000, 2011), its members negotiated as various subgroupings during the ABS negotiations. Several of these pursued partially similar strategies and objectives. Importantly, the AG moved jointly with other developing countries like the Group of Latin American and Caribbean Countries (GRULAC) and the LMMC to link the adoption of the ABS Protocol to the adoption of the Strategic Plan for Biodiversity 2011–20 and the Strategy for Resource Mobilization at Nagoya (see Wallbott et al., this volume, and below). Furthermore, the Group had begun to establish links between ABS and substantially related other processes (e.g. the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore of the World Intellectual Property Organization, the CBD Programme of Work on Protected Areas, the Cartagena Biosafety Protocol and the ITPGR). The occasional participation of persons following these other processes provided the AG with a broader perspective of the institutional complex (see Oberthür and Pożarowska, this volume) and cross-institutional strategies employed by other parties. All in all, these measures helped the AG gather reliable information and discover available policy opportunities and possible constraints. Leadership and ‘Realpolitik’ Some AG delegates were involved in CBD expert group discussions on ABS and served as co-chairs of various negotiation groups. On the basis of the aforementioned processes, they had a reputation for being open to pragmatic reason and

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compromise in the negotiations at large and could build on long-standing relations with the secretariat and across country lines. The AG and its reputable key individuals kept pursuing leadership and bridge-building strategies inside the Protocol negotiations. Displaying features of entrepreneurial leadership invoked notions of mutual trust, respect and long-standing bonds. Through their text-based contributions and diplomatic skills, the AG contributed to crafting structures and focal points in the multilateral setting. Already in 2006, the AG had proposed a draft ABS protocol. This was well received especially by other developing countries, including the LMMC and GRULAC (Ling 2006), and it was acknowledged as a valuable input into the negotiations. Production of operational text (including related explanations and rationale) continued throughout the Protocol negotiations (e.g. CBD 2009b). Also, the mechanisms that had assisted the AG to consolidate internally were transferred to the multilateral setting. For example, Namibia, one of the leading AG members, with the support of Canada, Austria, Germany and Spain, hosted the meeting of the Group of Legal and Technical Experts on Concepts, Terms, Working Definitions and Sectoral Approaches in December 2008 (CBD 2009a).11 This undertaking contributed to intellectual leadership discussed in the paragraphs below, as it was ultimately concerned with the creation of a common framework to define the ‘appropriate’ matter of deliberations in order to facilitate joint problem solving.12 The Group exerted entrepreneurial leadership by invoking possible win-winscenarios and pursuing integrative bargaining for the realization of the CBD’s ‘global agenda’ (CBD 2010b: para. 41). Promoting issue linkage, the AG suggested a comprehensive ABS regime in order to protect all parties’ and ‘the planet’s biological future’ (ibid.) from vested private interests that ‘wished to maintain ‘business-as-usual’’ (ibid.) and the dominance of (competitive) IPR. Thereby, the Group reframed the ABS issue as an integrative (rather than a distributive) one that was in every party’s interest. This opened up space for suggesting win-winsolutions and connecting with those that regarded international ABS regulation also as an attempt to preserve biodiversity. At the same time, the Group complemented its evocation of general normative prospects/principles of environmental governance with an appeal to cost-benefit rationality. Accordingly, ‘public awareness of the economic value of ecosystems and biodiversity [. . .] is the primary incentive available for sustainable use and conservation’ (CBD 2010a: para. 130). Thereby, the AG not only demonstrated once more its inclination to issue linkage but, in what may be considered intellectual leadership, also linked its position to general normative prospects of the international community—a classical (re)framing strategy of norm entrepreneurs. This intellectual leadership of the AG showed in various facets. Thus, the Group presented itself as a guardian of the global public good ‘biodiversity’ by pointing out that Africa had conserved those resources ‘from time immemorial’ (CBD 2010b: para. 68). It tried to strengthen the legitimacy of its normative claims by pointing to their coherence with existing international norms such as the mandate of the World Summit on Sustainable Development (2002) and various COP decisions. Especially regarding temporal scope, the AG argued that there was a ‘moral obligation’ (ENB 2010c) for benefit sharing from new and continuing uses

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of GR after the entry into force of the CBD, hereby trying to reframe the (supposedly) distributive issue to one of universal moral standards. Accordingly, the AG called upon other parties’ ‘spirit of fairness and flexibility’, also by raising the moral appeal to acknowledge the AG’s own ‘integrative’ contribution to the international negotiations: In attempting to reach a consensus, the African Group had accepted the narrow concept of GR in place of the larger concept of biological resources; it had accepted a watered down definition of derivatives; it had accepted minimum standards for access that infringed on national sovereignty; and it had agreed to water down the notions of compliance and the enforcement of judgments. The African Group had nothing left to compromise on and asked other participants to make an effort at serious compromise as well. (CBD 2010b: para. 41) Pointing out the unfairness of appropriation from the commons without giving back, the ABS protocol can be interpreted as a way to compensate for the injustices of colonialism. Furthermore, ‘Africa’s historical experiences of misappropriation and inappropriate exploitation of its valuable resources’ underpinned the Group’s demand for a strong compliance system, assuming that ‘voluntary measures without more punitive remedies and sanctions for noncompliance are unlikely to be sufficient’ (AG 2011). In sum, the AG employed a broad portfolio of intellectual/directional and entrepreneurial leadership activities. At the end of the Nagoya negotiations, however, the AG also used classical bargaining tactics, switching ‘between moral shaming and Realpolitik’ (Interview 2012). The credo of the AG was that conservation and sustainable use would not happen without benefit sharing. Whereas there was no other forum for the AG to pursue this strategic linkage, the Group made clear that, without significant progress on benefit sharing, Africa would not engage with the broader CBD agenda. In this sense, the AG, along with other developing countries, repeatedly made the adoption of the aforementioned Strategic Plan for Biodiversity and Strategy for Resource Mobilization conditional upon the adoption of the ABS Protocol—being well aware that industrialized countries would not want to take the blame for another failure of UN environmental politics after the Copenhagen Climate Summit only months before. It even suggested that all environmental negotiations would be derailed if the developed countries did not play a fair hand (Interview 2012). Since decisions within the framework of the CBD require consensus, the AG was able to threaten the blocking of decision making.

The African Group and the Nagoya Protocol: Looking back and ahead The Nagoya Protocol: A success for the African Group? The Nagoya Protocol was, in the end, the result of small-group consultations including the EU, Norway, Brazil, Japan as the host and Namibia on behalf of the AG (Nijar 2011). Being included in this decisive situation alongside industrialized

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countries and one emerging economy can be regarded a first success for the AG. Afterwards, the AG made clear that the Protocol was not the best of documents ‘but we can live with it and more importantly, there is Article [31] on review [of the Protocol]. When it is implemented we can see how it is’ (in TWN 2011: 95). Whereas the legal bindingness of the Protocol is one success for the AG, as for other developing countries, the benefits that provider countries will reap from the agreement depend to a large extent on the still uncertain ratification and subsequent implementation by user countries in the North, especially regarding user compliance (see also Tvedt, this volume; see Wallbott et al., this volume for a broader discussion of the negotiation results). Regarding the AG’s priority issue of scope, the result is somewhat mixed. On the one hand, pathogens are mentioned (Art. 8(b)) and derivatives are defined (Art. 2(e)) in the Protocol, whereby its economic scope is extended beyond pure GR. Also, the Protocol refers to the concept of ‘utilization of genetic resources’ as the basis of benefit sharing in its preamble. Whereas the Protocol does not mention anything about (pre–CBD) ex-situ resources (temporal scope) or GR in the high seas or the Antarctic Treaty Area (geographical scope), temporal scope and transboundary situations may be implicitly captured in Article 10 of the Protocol, which provides that: Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. This provision does not go as far as the AG’s initial demand but merely establishes a procedural obligation to consider, first, the need for the establishment and, second, the modalities of a global mechanism (Buck and Hamilton 2011: 59; see below). Realizing that some industrialized countries, in particular some former colonial powers, would not be willing to buy into the redistributive and implementation uncertainties that a regulation of ex-situ resources under the ABSProtocol would entail (Interview 2011), the AG considered that this was as far as they could push (Interview 2012). With a view to international access standards and TK, in the interest of the AG, the Protocol does reaffirm the principle of state sovereignty over GR. Furthermore, it subjects access to TK associated with GR to PIC/MAT with the relevant ILCs (Art. 7) as well as to the sharing of benefits with them (Art. 5). Implementation challenges remain, however, in this regard, in particular given low administrative capacity in many African countries. Accordingly, in 2012, the AG suggested that an ABS ombudsman should be established to provide assistance to developing countries and ILCs (ENB 2012). With regard to compliance mechanisms in support of benefit sharing, the Protocol puts forward an ‘internationally recognized certificate of compliance’. However, while the AG alongside other developing countries had demanded that checkpoints and certificates would aim to control the use of GR/TK, their role is

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Goals, strategies and success of the African Group 125 now limited to monitoring and enhancing transparency of the utilization of GR and does not cover associated TK (Frein and Meyer 2011: 14). Furthermore, information is only to be included in the certificate ‘when it is not confidential’ (Art. 17.4). Also, patent offices and mandatory disclosure requirements are not considered in the Protocol, as requested by the AG (and other developing countries). Summing up, while the AG had to accept many compromises, it went home with a legally binding agreement that adds the option of a multilateral Global Mechanism to deal with issues of scope and to complement the bilateral contractual ABS system. With this foot in the door, the Group relies on its ability to shape future processes, for example, in the Intergovernmental Committee for the Nagoya Protocol established at COP-10. In this sense, ‘the game has not ended yet’ (Interview 2012). International ABS governance after Nagoya: Implications for the African Group As indicated, the ‘Global Mechanism’ envisaged in Article 10 of the Nagoya Protocol constitutes a priority for the AG post–Nagoya. Issues to be decided include the Mechanism’s sources (voluntary or mandatory, private and/or public); the technical and governance mechanisms to determine those situations for which it is not possible to obtain PIC or that are of transboundary character; the beneficiaries as well as the use of the benefits; the relationship between the Mechanism and the existing Clearing-House Mechanism; and whether the mechanism would be established under the Nagoya Protocol or the Convention (entailing different composition of parties; see CBD 2012: 29–30; Tvedt 2011). Regarding these matters, the AG favours an approach that may encompass protective as well as marketoriented aspects (ABS Initiative 2011). Furthermore, the issue of (non-)compliance is of ongoing concern for the AG. Since African states may be able to profit from the established ABS norms, the AG has actively promoted the Nagoya Protocol. Only 6 weeks after COP10, the AG, for example, put forward a Proposal on Genetic Resources and Future Work within WIPO’s aforementioned Intergovernmental Committee, stressing that other international instruments be mutually supportive and not run counter to the objectives of the CBD and the Nagoya Protocol (WIPO 2010; see also Oberthür and Pożarowska, this volume). Also, the Group argued that Article 30 of the Nagoya Protocol on a compliance mechanism implies the mandate to produce an encompassing institutionalized system related to Articles 15 through 18 of the Protocol on compliance with domestic legislation, monitoring and MAT. In this context, lessons could be learned from other relevant agreements (ENB 2011), including the 1972 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the ITPGR (AG 2011). At the same time, experience with previous environmental negotiations suggests that the normative sway and success of the South’s argumentation may not last into the implementation phase. This has been partly explained by more powerful interests winning through in forums that matter more for the actual

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international transactions of GR, such as WTO-TRIPS and the ITPGR (Raustialia and Victor 2004; Rosendal 2000, 2011). In this regard, the ‘considerable space for interpretation’ (Frein and Meyer 2011) that results from the lack of precision of the Protocol’s provisions might facilitate ambiguous implementation.

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Conclusions This chapter was concerned with the role, strategies and success of the African Group, composed of mostly developing but biodiversity-rich states, in multilateral ABS negotiations under the CBD. The distinct goal of the Group was to secure benefit sharing on the basis of utilization (and not merely access) of GR. Furthermore, the AG advocated a legally binding agreement that was to be mutually supportive of negotiations and processes in related areas. Linking up access standards and user measures, strong checkpoints in both provider and user countries should verify certificate-based information on GR. Regarding scope, the Group argued that pre–CBD collections (including those stored ex situ) should be included in the Protocol, because they are most often the basis of continuing and derivative uses. Hence, their exclusion would significantly weaken the Protocol and the realization of the CBD’s third objective. In this context, the AG proposed a global multilateral benefit-sharing mechanism for benefit sharing from the utilization of GR for which PIC was not available (anymore) that were located in areas beyond national jurisdiction or that were held by more than one party/community. The benefits would then be used to support conservation and sustainable use of biodiversity. But the Group had to compromise in the face of industrialized countries’ unwillingness to accept the economic and technical implications of benefit-sharing provisions for the utilization of ex-situ resources. Still, the legal bindingness of the Protocol, the reference to ‘utilization’ and the inclusion of a provision to follow up on the idea of the multilateral mechanism were big successes for the AG in the negotiations. The formation and consolidation of the AG in the Nagoya negotiations has served various purposes, not least to counter material and financial disadvantages in comparison to industrialized countries. By pooling economic, technical and human resources, AG members were empowered to manage the complexity of UN ABS negotiations. In this context, the AG was an important forum for its members to generate shared understanding regarding the main concepts and their implication in this issue area in order to prepare and to defend their positions. Importantly, members of the AG had come together also on the basis of a shared identity rooted in the perceived injustices of colonial times. In other words, African states shared a similar understanding of the moral nucleus of the issue (in particular temporal scope). As such, the coalition provided a crucial platform and channel for the norm-promoting activities of its members, aiming to make up for past wrongs. Dissemination of knowledge and crafting of argumentative resources within the coalition helped establish alternative power resources. As a result and despite their weak material capacities, the Group’s members were able to bring diplomatic skills and entrepreneurial as well as intellectual leadership

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Goals, strategies and success of the African Group 127 to bear. These were apparent through well-noted issue linkage, the proposition of win-win solutions, the formation of issue-based coalitions and outreach, the preparation of text proposals and the (re)framing of issues. In the ‘contested terrain’ of the international negotiations, the Group was able to attach new meaning to the issue of ABS and to continuously shape the negotiations agenda. Yet the AG also made use of the procedural provisions of the negotiation process (consensus requirement) in order to obtain concessions from other parties when it repeatedly framed a package deal as the only possible outcome of COP10. It was able to raise the pressure for two reasons: First, in an atmosphere of high moral stakes and public sensitivity to UN environmental negotiations, industrialized countries did not want to ‘go home with nothing’ after the poor results of the Copenhagen Climate Summit only months before. Second, gains for each party were dependent on other parties’ commitment. Whereas developing countries wanted to secure benefit sharing, industrialized countries were interested in sustained access to GR in developing countries, which could be spoiled by restrictive national legislation, for example, in African countries. In sum, the AG’s relative coherence and persistence despite major powers’ opposing interests and own coalition-building efforts (see Wallbott et al., this volume) can be regarded a success. Even more, the Group did not just tip the scales as a blocking coalition but also managed to affect the substance of the agreed Protocol. Thus, the AG as a ‘weak’ group of states (nevertheless) acted as norm entrepreneurs in world politics, effectively shaping negotiation structures and outcomes beyond their assumed weight. In the end, even though the AG was not able to realize all its goals, ‘many of the negotiators in the AG did feel that we had some important victories [. . . and] we made some big breakthroughs’ (Interview 2012).

Notes 1 This chapter is based on analysis of primary and secondary literature, interviews and own participatory observation at the tenth Conference of the Parties to the CBD in Nagoya in October 2010. Kabir Bavikatte provided essential information for this article. I gratefully acknowledge his valuable input. Furthermore, I thank Nicole Deitelhoff and the co-editors for helpful comments on a previous version of this chapter. 2 South Africa, the Democratic Republic of Congo, Kenya and Madagascar are even members of the Like-Minded Megadiverse Countries (LMMC). 3 See http://www.abs-initiative.info/545.html (accessed 2 December 2012). 4 Already in 2000, the African Union had adopted ‘The African Model Legislation for the protection of the rights of local communities, farmers and breeders, and for the regulation of access to biological resources’ (OAU 2000). 5 See http://www.abs-initiative.info/milestones.html (accessed 6 October 2012). 6 Since then, the initiative (now called ABS Capacity Development Initiative) has become a multidonor undertaking (including Norway, Denmark and the EU) and has extended its regional scope to include Caribbean and Pacific states (http://www.abs-initiative. info/504.html, accessed 6 October 2012). 7 See http://www.cbd.int/abs/submissions/ (accessed 8 October 2012). 8 See http://www.abs-initiative.info/antsiranana_11-080.html (accessed 8 October 2012).

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9 Furthermore, medicine, cosmetics and food supplement industries use biochemical compounds of GR, while, for example, the breeding sector uses the genetic information/DNA of the resource (Berne Declaration et al. 2009: 1). Hence, if the use of biochemical components were excluded from the scope of the Protocol—as one interpretation of Article 15 in conjunction with Article 2 of the CBD suggests—a majority of bioprospecting cases would not be subject to this ABS regulation (for a more detailed discussion of concepts, see Tvedt, this volume). 10 For example, a so-called biocultural community protocol with the purpose to regulate access to knowledge and resources would be developed after a consultative process within a community, outlining its core ecological, cultural and spiritual values and customary laws (Bavikatte and Jonas 2009: 20). 11 One of three expert groups established by the COP in 2008; see Wallbott et al., this volume. 12 See also Hufty et al., this volume, for an elaboration of individual delegates as knowledge brokers and negotiation facilitators.

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ENB (2012) ‘Summary of the Second Meeting’, 2–6 July, Earth Negotiations Bulletin 9(579), http://www.iisd.ca/vol09/enb09579e.html (accessed 10 December 2012). Finnemore, M. and Sikkink, K. (1998) ‘International Norm Dynamics and Political Change’, International Organization 52(4): 887–917. Finnemore, M. and Sikkink, K. (2001) ‘Taking Stock: The Constructivist Research Program in International Relations and Comparative Politics’, Annual Review of Political Science 4: 391–416. Florini, A. (1996) ‘The Evolution of International Norms’, International Studies Quarterly 40(3): 363–389. Frein, M. and Meyer, H. (2011) The Nagoya Protocol on Access and Benefit Sharing (ABS) under the Convention on Biological Diversity (CBD), World Wildlife Fund (WWF)/ Church Development Service (EED), http://www.cbd.int/abs/side-events/icnp2/abswwf-eed-2011-en.pdf (accessed 18 March 2013). Grubb, M. and Gupta, J. (2000) ‘Leadership: Theory and Methodology’, in Gupta, J. and Grubb, M. (eds.) Climate Change and European Leadership: A Sustainable Role for Europe?, Dordrecht, the Netherlands: Kluwer Academic Publishers, 15–24. Gupta, J. and Ringius, L. (2001) ‘The EU’s Climate Leadership: Reconciling Ambition and Reality’, International Environmental Agreements: Politics, Law and Economics 1(2): 281–299. Hampson, F.O. and Hart, M. (1995) Multilateral Negotiations: Lessons from Arms Control, Trade and the Environment, Baltimore, MD: Johns Hopkins University Press. Hopmann, P.T. (1996) The Negotiation Process and the Resolution of International Conflicts, Columbia: University of South Carolina Press. Johnston, A.I. (2001) ‘Treating International Institutions as Social Environments’, International Studies Quarterly 45(4): 487–515. Ling, C.Y. (2006) Africans Propose Draft CBD Access and Benefit Sharing Protocol, http://www.biosafety-info.net/file_dir/860848857fae44abd.doc (accessed 19 November 2012). March, J.G. and Olsen, J.P. (1998) ‘The Institutional Dynamics of International Political Orders’, International Organization 52(4): 943–969. Najam, A. (2002) ‘Unravelling of the Rio Bargain’, Politics and the Life Sciences 21(2): 46–50. Narlikar, A. and Tussie, D. (2004) ‘The G20 at the Cancun Ministerial: Developing Countries and their Evolving Coalitions in the WTO’, World Economy 27(7): 947–966. Nijar, G.S. (2011) The Nagoya Protocol on Access and Benefit Sharing: An Analysis, CEBLAW Brief, Kuala Lumpur, Malaysia: Centre of Excellence for Biodiversity Law (CEBLAW), http://biogov.uclouvain.be/multistakeholder/presentations/Gurdial-NijarNagoyaProtocolAnalysis-CEBLAW-Brief.pdf (accessed 18 March 2013). OAU (2000) African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, Nigeria: Organization of African Unity, http://www.cbd.int/doc/measures/abs/msr-absoau-en.pdf (accessed 10 December 2012). Ostrom, E. (1990) Governing the Commons: The Evolution of Institutions for Collective Action, Cambridge, UK: Cambridge University Press. Raustialia, K. and Victor, D.G. (2004) ‘The Regime Complex for Plant Genetic Resources’, International Organization 58(2): 277–309. Rosendal, G.K. (2000) The Convention on Biological Diversity and Developing Countries, Dordrecht, the Netherlands: Kluwer Academic Publishers.

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Goals, strategies and success of the African Group 131 Rosendal, G.K. (2011) ‘Biodiversity Protection in International Negotiations: Cooperation and Conflict’, in Dinar, S. (ed.) Beyond Resource Wars: Scarcity, Environmental Degradation, and International Cooperation, Cambridge, MA: MIT Press, 59–86. Tvedt, M.W. (2011) A Report from the First Reflection Meeting on the Global Multilateral Benefit-Sharing Mechanism (FNI Report 10/2011), Lysaker, Norway: Fridtjof Nansen Institute. TWN (2011) The Road to an Anti-Biopiracy Agreement. The Negotiations under the United Nations Convention on Biological Diversity, Penang, Malaysia: Third World Network. Wiener, A. (2007) ‘The Dual Quality of Norms and Governance Beyond the State: Sociological and Normative Approaches to “Interaction” ’, Critical Review of International Social and Political Philosophy 10(1): 47–69. WIPO (2010) Proposal of the African Group on Genetic Resources and Future Work, WIPO Doc. WIPO/GRTKF/IC/17/10, 8 December 2010, World Intellectual Property Organization, http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ ic_17_10.pdf (accessed 10 December 2012). Wunderlich, C. (2013) ‘Theoretical Approaches in Norm Dynamics’, in Müller, H. and Wunderlich, C. (eds.) Norm Dynamics in Multilateral Arms Control, Athens, Georgia: University of Georgia Press: 20–47. Young, O.R. (1991) ‘Political Leadership and Regime Formation: On the Development of Institutions in International Society’, International Organization 45(3): 281–308.

Interviews Interview (2011) Interview with a delegate of the European Union, June 2011. Interview (2012) Interview with a delegate of the African Group, April 2012.

8

The Nagoya Protocol and the diffusion of economic instruments for ecosystem services in international environmental governance

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Franziska Wolff Introduction With the adoption of the Nagoya Protocol in 2010, a policy process drew to a close that (re-)defined sovereignty and property rights on genetic resources (GR) and embedded them into a governance system, establishing a global market for GR. This process is part of a broader trend towards an incentive-based governance of biodiversity and ecosystem services. Ecosystem services are ‘the benefits people obtain from ecosystems’ (MA 2005a: v). Traditionally, biodiversity and land-use policies were dominated by command-and-control approaches and by planning. However, in the past decades, an increasing number of economic instruments have been introduced in Organization for Economic Co-operation and Development (OECD) and developing countries (OECD 2008; UNEP 2004). More recently, this trend has influenced international environmental governance. Since the late 1980s, when debt-for-nature swaps were first introduced as a bilateral economic mechanism, four international policy instruments have been designed that (will) establish either markets or payments for ecosystem services: In 1992, the access and benefit-sharing (ABS) provisions of the Convention on Biological Diversity (CBD) created a global market for GR, the rules of which were specified by the Nagoya Protocol (2010). The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR), adopted in 2001 under the auspices of the Food and Agriculture Organisation of the United Nations (FAO), created a (non–market-based) payment scheme for a specific subset of GR, deviating from the CBD’s system. Within the climate regime, the Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC) in 1997 introduced three market mechanisms, including the Clean Development Mechanism (CDM). Six years later, with the recognition of forestry activities within these mechanisms, a global market for forest carbon was created. Finally, in 2005, negotiations started under the UNFCCC on an instrument aimed at ‘reducing emissions from deforestation and forest degradation in developing countries’ (REDD+). This instrument-to-be will compensate tropical forest nations for protecting their forests, either through the carbon markets or an international payment scheme.

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The Nagoya Protocol and the diffusion of economic instruments 133 Beyond these concrete instruments, the 2000s saw an intensification of a wider policy discourse promoting the use of economic instruments for biodiversity and ecosystem services (Wolff et al. Forthcoming). It was supported, among others, by the UN’s Millennium Ecosystem Assessment (MA 2005a), the Stern Review (Stern 2006), The Economics of Ecosystem and Biodiversity initiative (TEEB 2010) and the ‘green economy’ discourse that shaped the Rio+20 UN Conference on Sustainable Development (UN 2011). This discourse is not undisputed. A number of scholars and practitioners have voiced concerns about technical and ethical difficulties involved in the pricing of nature’s services (e.g. Vatn 2010) and about equity and legitimacy (Corbera et al. 2007). However, it has not yet been explored in a comparative fashion whether the environmental performance of international economic instruments for biodiversity and ecosystem services lives up to the expectations and justifies their promotion. Against this backdrop, this chapter aims to shed light on the global governance of ABS by relating it to and comparing it with other international policies that strive to protect biodiversity or ecosystem services on the basis of economic mechanisms. Following a brief section on concepts and analytic framework, I will explore and compare the above-mentioned examples of economic instruments for ecosystem services established in the context of the CBD and its Nagoya Protocol (NP), the ITPGR, the CDM (forestry projects) and REDD+. These instruments are selected because to date they are the only existing—and in the case of REDD+ still emerging—economic instruments for biodiversity and ecosystem services at the international level. The analysis covers (a) the targeted ecosystem services; (b) the instruments’ evolution; (c) the instruments as such, focusing on their economic nature and the transactions they induce; and (d) the instruments’ effects. The research is based on institutional and document analysis and expert interviews as well as a review of quantitative and qualitative data on instrument effects. In a concluding assessment, I compare the four instruments, helping to elucidate the particular features of the CBD/NP market. More generally, the comparison confirms those voices sceptical of the introduction of markets for ecosystem services; non–market-based payment schemes are regarded as less problematic.

Concepts and analytic framework Ecosystem services and economic instruments The CBD/NP market for GR can be regarded as a ‘market for ecosystem services’. Ecosystem services encompass ‘provisioning’ services (or goods) such as food, water, timber or GR; ‘regulating’ services like the regulation of climate, floods, disease and water quality; ‘cultural services’ such as recreation and spiritual fulfilment; and ‘supporting services’ like soil formation or nutrient cycling. Biodiversity is regarded as the very basis of ecosystem services (MA 2005a). The Millennium Ecosystem Assessment argues that the loss and degradation of ecosystem services is intrinsically linked to the insufficient monetary appreciation of the frequently ‘invisible’ functions of ecosystems. Therefore, the greater

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use of economic instruments and market-based approaches in the management of ecosystem services is advocated (MA 2005a: 95–97). Economic instruments for ecosystem services are understood here to include positive or negative incentives fostering the provision of ecosystem services. My focus will be on monetary (as opposed to nonmonetary) incentives. These are employed with the aim of realigning the behaviour of land users through changing the relative prices of their actions and nonactions. Negative incentives encompass taxes, fees or user charges on ecosystem services. Positive incentives such as payments to landowners for conserving biodiversity or agri-environmental compensation schemes are often subsumed under the category of ‘payments for ecosystem services’. The level of payments can be set by governments or by markets (understood as the interplay of supply and demand in a system of voluntary exchange). In the latter case, we can also speak of ‘markets for ecosystem services’ as a subcategory of payments for ecosystem services. Analytic framework for assessing instrument effects This chapter will evaluate, among others, the actual or potential effects of the selected instruments. In the following, I briefly set out an analytic framework for this assessment that draws from the work on regime effectiveness (Miles et al. 2001; Young 2011). The first step required is to determine the dependent variable by asking ‘what are the effects of the instrument in question?’ The instrument is conceptualized as the result of a political process (i.e. a ‘policy output’). Its effects include ‘policy outcomes’ (behavioural change caused by the instrument) and ‘policy impacts’ (resulting effects on policy goals, contribution to problem solving). Based on this differentiation, the question of instrument effects can be broken down into a set of more specific subquestions: To what extent can we observe that the instrument induces behavioural changes (outcomes)? These include changes in the behaviour of contracting parties (introducing domestic policies, if required for implementation) and of the instrument’s ultimate addressees (i.e. land users, bioprospectors etc.) leading, ideally, to compliance with the instrument. To what extent can we assume that these behavioural changes lead to relative or absolute improvements in the state of biodiversity or ecosystem services (impact)? And what are the effects on local resource users who oftentimes act as resource stewards? A major methodological challenge lies in causal attribution: Based on process tracing and causal reconstruction, we need to carefully examine whether the observed changes in outcomes (e.g. land-use practices) and impacts (e.g. reductions in greenhouse gas concentrations) are indeed attributable to the international instrument. This becomes harder the longer causal chains are. When evaluating instrument effects in this chapter, I review pre-existing quantitative and qualitative data where available. Where instruments have not yet created effects, conceptual analysis replaces data analysis. In the following, I describe the four selected instruments and assess their effects in accordance with the above framework.

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The market for genetic resources: ABS under the CBD and the Nagoya Protocol

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The targeted ecosystem service The ecosystem service that the ABS provisions of the CBD and NP aim to foster is GR. These are the materials of plant, animal, microbial or other origin containing functional units of heredity with an actual or potential value. GR are ‘provisioning’ services (goods) in that they provide the basis for many products—among others, in the biotechnology, pharmaceutical, horticulture, cosmetic, seed, crop protection, food and beverage industries. Scientists either try to use the genetic structure of GR as such, biochemical compounds contained in the material or information encapsulated in the nucleotide sequence of the genetic material (Deke 2008). GR can thus be used both as natural resources and as informational goods. The market value of the highly heterogeneous GR mainly derives from the genetic information they contain. Apart from provisioning ecosystem services, the diversity of GR and ultimately of biodiversity existing in natural habitats provides insurance that enhances overall ecosystem resilience (Loreau et al. 2002). Thus, it also fosters regulating and supporting services (disease regulation, soil formation etc.). The state of GR has continually worsened over the past 50 years: The unprecedented changes to ecosystems affected by humans (through modern agriculture, expanding infrastructures, settlements etc. as well as pollution) have resulted in a ‘substantial and largely irreversible loss in the diversity of life on Earth’ (MA 2005a: 2). Instrument evolution Starting in the 1980s, the evolution of the ABS regime of the CBD and the NP is intrinsically linked both with concerns about biodiversity loss and with equity and discursive struggles related to the economic exploitation of GR through various industries (‘green gold’; see Wallbott et al., this volume). The instrument The adoption of the CBD in 1992 created a framework for market-based transactions of GR.1 Its regulatory basis includes the CBD’s objective to pursue ‘the fair and equitable sharing of the benefits arising out of the utilization of genetic resources’ (Art. 1 CBD); the principle of national sovereignty over natural resources (Art. 3 and 15); the provisions of Art. 8( j) on traditional knowledge and of Art. 15 on access and benefit sharing. The Nagoya Protocol of 2010, at the time of writing not yet in force, specifies the CBD’s ABS provisions. The resulting instrument is a ‘direct market’ for GR covered by the CBD/NP.2 In contrast to an ideal-type market for ecosystem services (Wunder 2005), in the GR market, a price is attributed not to the provision of ecosystem services but to the (commercial) use of ecosystem services (i.e. GR). Apart from the equity goal

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of sharing benefits, the indirect effect intended is to valorize GR and set an incentive for their conservation. Who are the market participants involved in a concrete transaction? ‘Sellers’ of GR are CBD parties that possess such resources under natural (in situ) conditions (‘countries of origin’), such as the biodiversity-rich countries of the Global South, or parties that have acquired the GR in accordance with the CBD and provide them via collections (ex situ). ‘Buyers’ include commercial and, if only in a figurative sense, noncommercial users of GR. The former are companies from the above-mentioned industries that use the genetic information or biochemical compounds contained in GR for the development of industrial products or processes. They are often but not exclusively situated in the Global North. Few companies systematically search for GR in the wild (‘bioprospect’) themselves; it is more common to subcontract intermediaries for this purpose. Noncommercial users are academics who bioprospect and research GR in disciplines such as taxonomy, ecology, biochemistry or genetics (see also Biber-Klemm et al., this volume); they sometimes pass on material to commercial users. Depending on the GR in question, the number of buyers and suppliers can be quite low. In the case of endemic medicinal plants, for instance, a single buyer may come upon a single supplier (bilateral monopoly). However, where GR exist in several (e.g. neighbouring) countries under in-situ conditions, interested buyers can choose among competing providers. For globally ubiquitous GR, such as microbes sought after by the biotechnology sector, this is a potentially high number. Competition on the side of buyers exists as well to some extent, for example, when ABS contracts secure exclusive rights to the longer-term exploitation of GR existing in desired areas. Transactions between market participants might consist of the payment of a monetary benefit-sharing sum and/or the transfer of nonmonetary (in-kind) benefits, partly with a cash value. Benefit sharing is a quid pro quo for regulating access to the resource and is negotiated bilaterally between a user and a provider within a multilaterally negotiated framework. Payments are mandatory when monetary benefits arise from the ‘utilization’ of a genetic resource—defined as the conduct of research and development on genetic and/or biochemical composition, including through biotechnology—from subsequent applications or from commercialization. In practice, monetary benefit sharing can encompass fees per sample, milestone payments, royalties on net sales, and/or licensing agreements, while nonmonetary benefit sharing covers, among others, training, capacity building, research exchanges, supply of equipment, technology transfer and joint publications (SCBD 2008: 118). The NP newly encourages users and providers to direct the accrued benefits towards the conservation and sustainable use of biodiversity. However, no mechanism exists to monitor compliance with this provision or deal with noncompliance. Before acquiring a genetic resource, a user must ensure the provider country’s prior informed consent (PIC) and negotiate a benefit-sharing agreement with the relevant authority based on ‘mutually agreed terms’ (MAT). A set of international access standards and requirements regarding the establishment of responsible

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The Nagoya Protocol and the diffusion of economic instruments 137 authorities shall facilitate the procedure for users. Users conducting basic research are granted simplified access conditions. With the entry into force of the NP, the market transaction will be accompanied by the requirement that users comply with so-called ‘user (compliance) measures’. With such measures, user countries are to verify that GR utilized within their jurisdiction have been accessed in accordance with PIC and MAT. User countries can thus support providers in the enforcement of benefit-sharing obligations. While the concrete design of user measures is up to the individual parties, companies and researchers will in any case be required to provide information on the utilized GR (e.g. pertaining to source, PIC or MAT) at so-called ‘checkpoints’ in user countries, including through a newly introduced internationally recognized certificate of compliance (see Tvedt, this volume). Instrument effects How successful has the CBD been so far and is the NP likely to be in stimulating, through its ABS provisions, the conservation and sustainable use of biodiversity? The number of provider countries that have implemented ABS legislation is a first indicator of the size of the GR market, since such a market can only emerge where countries commit bioprospectors to PIC and MAT. To date, 31 developingcountry provider states (as well as eight industrialized countries) have implemented domestic legislation with PIC or MAT requirements (SCBD 2013). The number of user countries that have implemented user measures indicates the extent to which these support providers in enforcing ABS compliance, thus increasing market size. As of early 2013, only 10 countries had introduced user measures. These consist of disclosure of origin legislation and, in one case, voluntary industry guidelines (SCBD 2013). The number of countries that have already ratified the NP indicates how many states are willing to consolidate the CBD’s GR market by implementing the more extensive ABS rules of the NP. By March 2013, with altogether 92 signatories, 15 countries had ratified the Protocol. Fifty ratifications are necessary for the NP to enter into force. Voluntary commitment by commercial users—in the context of ‘corporate social responsibility’—potentially promotes ABS and can thus increase the volume of benefit sharing. To date, a number of codes of conduct for commercial users exist in the drug and biotechnology sectors (only), but their sponsors do not track how many companies use them. While the focus of these instruments is on promoting their signatories’ compliance with domestic PIC and MAT requirements, some go beyond compliance, for example, with regard to stakeholder involvement, avoiding negative impacts on traditional use when commercializing GR or promoting the conservation and sustainable use of GR. The volume of the GR market is equivalent to the amount of benefits shared. To date, no quantitative data exist on the overall number of bioprospecting contracts concluded, the prices agreed upon or the resulting sum of monetary (or nonmonetary) benefit sharing (SCBD 2008). Most evidence is case based (SCBD

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2008); some countries have reported on the conclusion of ABS contracts in their national reports to the CBD. For instance, Brazil reported in 2010 that since the creation of its national ABS authority in 2002, only 25 benefit-sharing contracts had been concluded (mostly with universities), owing to complex and difficultto-implement legislation (Brazil 2010: 213). An iconic case is the bioprospecting deals between the National Biodiversity Institute (INBio) of Costa Rica and US drug company Merck, which are reported to total at US$4.5 million—a sum unrivalled to date by other publicly known contracts, though small when compared to the US$400 million the country annually derives from ecotourism (Bishop et al. 2008: 73). Generally, their heterogeneity, incommensurability and the uncertainty regarding their performance (i.e. genetic traits of interest) makes it difficult to ascribe market values to GR. As a consequence of these different factors, figures on the overall size of the global GR market should be accepted with caution. Recent estimates vary from US$17.5 to 30 million (Bishop et al. 2008: 70) to US$0.4 to 1.9 billion (Parker and Cranford 2012: 74). While the complaints of commercial users about access restrictions hampering technological innovation seem to (paradoxically) suggest that there is a potential for reaping benefits (Rosendal 2006: 442), numerous observers have held that the political expectations regarding benefit sharing have by far exceeded the actual and likely revenues (e.g. Bishop et al. 2008: 68). The Global Biodiversity Outlook 3 concludes that the subtarget ‘to ensure the fair and equitable sharing of benefits arising out of the use of genetic resources’ of the international 2010 biodiversity target has not yet been achieved (GBO-3 2010: 19). The share of protected areas can give an indication of provider country efforts to conserve and sustainably use biodiversity, with protected areas being the most common tool for nature protection in developing countries (Miteva et al. 2012). There is no institutional safeguard in the CBD and only a weak one in the NP, advising benefit-sharing revenues to be invested in nature conservation. However, the ‘selling nature to save it’ argument (McAfee 1999) that shaped ABS negotiations assumes that the introduction and smooth functioning of a GR market quasiautomatically creates incentives for GR providers to protect their countries’ nature. To examine this assumption, I will analyze how the shares of terrestrial and marine protected areas have developed in the 17 so-called Like-Minded Megadiverse Countries that claim to hold approximately 70 per cent of all biodiversity. Comparing data from the year in which national ABS legislation first came into effect—a precondition for trading GR—with data from 2010 (IUCN and UNEP-WCMC 2011),3 it emerges that in most cases the observable expansion of protected areas temporally precedes the introduction of GR markets (via national ABS legislation); in the remaining six cases, reports to the CBD (e.g. Brazil 2010:213–214; Mexico 2009:119; Philippines 2009: 65) reveal that the countries in question have not received monetary benefits at a significant scale. As a consequence, the above hypothesis is rejected (for the time being) at least partially; it still seems possible that countries’ expectation of potential future benefits may trigger an expansion of protected areas (for more details, see Wolff Forthcoming). These findings do not preclude that GR markets might boost the conservation and

The Nagoya Protocol and the diffusion of economic instruments 139 sustainable use of biodiversity in other ways than the expansion of protected areas (but data on alternative indicators are weak at the international level). Neither do they preclude that GR markets will in the future induce more conservation efforts once ABS legislation is more widely implemented (among both provider and user countries) and trusted, following implementation of the NP.

A payment scheme for plant genetic resources for food and agriculture: ABS under the ITPGR

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The targeted ecosystem service Plant genetic resources for food and agriculture (PGRFA) are a subset of GR, namely the seed and planting material of modern cultivars, traditional varieties, crop wild relatives and other wild plant species used in agriculture (FAO 2013). Seeds have been developed by humans over millennia with intense exchanges and interdependencies between regions of the world. They are ‘provisioning’ ecosystem services: They provide the genes and genetic information required for plant breeding and biotechnology and ultimately for human consumption and world food security. At the same time, the diversity of PGRFA actively used in agriculture (i.e. ‘on farm’) is linked to ‘regulating’ ecosystem services: It protects against crop pests, diseases and abiotic stresses (e.g. drought; FAO 2011: 5) and hence against crop losses. Between 1900 and 2000, some 75 per cent of PGRFA were lost, particularly in industrialized countries (FAO 2010b). Low variability in crop rotation and increasing uniformity of agro-ecosystems are associated with these trends. The problem is driven, above all, by the spread of modern agriculture (FAO 2010b). Instrument evolution The ITPGR and the payment scheme (fee) it introduces result from a lengthy political conflict that is tightly intertwined with the history of the CBD. While the increasing loss of PGRFA gradually became an issue of international concern as of the 1960s, reflected in the emergence of the concept of ‘gene erosion’, PGRFA became genuinely politicized only in the 1980s (Pistorius 1997). A conflict, dubbed ‘seed wars’ (cf. Kloppenburg and Kleinman 1987), arose between developed and developing countries on the exchange of seed. Although developing countries were major providers (often through international gene banks) of crop diversity, they were not rewarded for contributing this wealth to the development (mostly within industrialized nations) of ‘improved’ varieties. These varieties were typically protected by intellectual property rights (IPRs), making them even more expensive for developing-country farmers. As a reaction, also to the increasingly recognized genetic erosion, the legally nonbinding International Undertaking for Plant Genetic Resources was adopted under the auspices of the FAO in 1983. It stipulated that PGRFA were a ‘common heritage of mankind’ and should be available without restriction. When it was later clarified that this should not preclude the application of plant breeders’ rights (i.e. specific IPRs for new plant varieties), developing countries rather called for replacing the common heritage principle with national

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sovereignty over GR in CBD negotiations (Rosendal 2006: 432). The subsequent adjustment of the International Undertaking to the CBD led to the ITPGR. Its ABS system was recognized by the CBD parties as a complementary instrument to the Nagoya Protocol.

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The instrument The ‘multilateral system’ (MLS) for ABS established by the ITPGR (Art. 10–13) addresses the previously described biodiversity, food security and equity concerns. Unlike the market-based payment scheme under the CBD/NP operating through bilateral case-by-case contracts between GR buyers and sellers, it constitutes a non–market-based, multilateral payment scheme that applies to all covered GR. ‘Facilitated access’ is granted for specific PGRFA, and specific uses of these resources trigger the payment of fixed (fee-like) benefit-sharing rates into an international Benefit-Sharing Fund. ABS under the ITPGR differs from the CBD/ NP system largely because the distinctive features of PFGRA (see previous) were regarded by users/user countries as incompatible with the ‘country of origin’ concept and bilateral ABS negotiations. The MLS is operationalized through a Standard Material Transfer Agreement (SMTA) negotiated by the ITPGR parties. It serves as a template for the private contracts for concrete germplasm transfers between providers/‘sellers’ (mostly gene banks) and recipients/‘buyers’4 (breeders, national agricultural research centres etc.). These actors exchange within the MLS a subset of PGRFA, namely 35 food crops and 29 forages listed in the Treaty’s Annex I, to the extent that they are under the management and control of contracting parties and in the public domain or are held in international ex-situ collections. Most notably, this includes the gene bank network of the Consultative Group on International Agricultural Research (CGIAR). When PGRFA within the MLS are used for agricultural (as opposed to industrial) research, breeding or training, access to them is ‘facilitated’. Hence, access does not require PIC and MAT, as under the CBD/NP, and is free of charges except those covering the minimal costs involved. Recipients shall not claim intellectual property or other rights that limit the facilitated access to the GR or its genetic parts or components ‘in the form received’ from the MLS (Art 12.3(d) ITPGR, Art. 6.2 SMTA). This language aims to reconcile, without actually clarifying, the fundamental conflict on whether it would be possible to receive patents on unaltered MLS material. Breeders are encouraged to share the nonmonetary benefits resulting from their research and development on PGRFA from the MLS. Furthermore, monetary benefit sharing is mandatory when a recipient commercializes a product incorporating MLS material (i.e. sells a variety on the open seed market) if and only if that product is not ‘available without restriction to others for further research and breeding’ (Art. 13.2(d)(ii) ITPGR). Unlike in the CBD, it is hence not the commercialization of a product per se that triggers mandatory benefit sharing. Restrictions for further research and breeding are generally understood to be legal (e.g. patents), contractual (trade secrets) or technological (genetic use restriction

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The Nagoya Protocol and the diffusion of economic instruments 141 technologies, possibly also hybrid varieties; Halewood et al. 2013: 11). States have set a standardized rate for annual monetary benefit sharing in such cases: 1.1 per cent gross or 0.77 per cent net of the product’s gross sales. Independent of whether the product is available without restriction, but for all products belonging to the same crop, recipients can opt to make annual payments at a discounted rate of 0.5 per cent of a product’s gross sales for a period of 10 years (renewable). Where a commercialized product remains available without restriction, monetary benefit sharing is encouraged but voluntary. To foster compliance, providers and recipients have various reporting obligations. However, there are no ‘checkpoints’ like in the Nagoya Protocol at which fulfilment of benefit-sharing obligations is controlled. Instrument effects When assessing the MLS’s effects to date, one must take into consideration that the MLS became legally operational in 2006 and its practical implementation at the domestic level is ongoing in a number of countries. Hence, effects as well as data on the effects are likely to be (still) restricted. The amount of PGRFA included in the MLS by parties and international institutions shows the actual volume of the MLS: By January 2011, around one million ex-situ accessions had been made available to the MLS with sufficient documentation (ITPGR 2011b; 2011c). Of these, roughly two thirds stem from international gene banks, one third from European Region parties and institutions and only 2.6 per cent from other regions. National gene banks, particularly outside Europe, are so far regarded as laggards. The private sector has not placed any collections into the system, although it is encouraged to do so under the ITPGR. The distribution of material under the conditions of the SMTA is an indicator of access to the MLS: Between January 2007 and December 2009, the centres of the aforementioned Consultative Group on International Agricultural Research distributed some 1.15 million PGRFA samples with the SMTA (ITPGR 2011a: 9). Only 0.07 per cent of the samples were directly given to farmers (Chiarolla and Jungcurt 2011: 23). In addition to Annex I material, both the Consultative Group’s collections and some (e.g. European) contracting parties have distributed small shares of non–Annex I material with SMTAs. The number of products being commercialized that incorporate material received under an SMTA and that are not available without restrictions for further research and breeding is the basis for mandatory monetary benefit sharing: At the time of writing and due to lengthy breeding cycles (7–10 years for most crops), few if any MLS accessions had already resulted in commercial products. However, it was known that MLS material was in the industrial pipeline and that in some cases patents were likely.5 The resources of the Benefit-Sharing Fund, above all the revenues from mandatory benefit sharing, indicate how much money the payment scheme is able to generate for funding PGRFA projects. Due to the time lag referred to previously, no recipient had made mandatory benefit-sharing payments by early 2011,

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while one company contributed US$1,190 on a voluntary basis (ITPGR 2011c: para. 42). The Benefit-Sharing Fund has thus been filled with voluntary contributions from a range of contracting parties and international organizations. However, the annual subtargets of the Fund’s overall funding target (US$116 million for 2010–2014) have so far been missed, with only US$15.1 million mobilized between 2010 and 2012 (ITPGR 2012: para. 4). The institutional requirements for and actual success of the projects funded by the Benefit-Sharing Fund is a proxy for the MLS’s potential impact on biodiversity and ecosystem services. Projects are to primarily encourage farmers in developing countries to on-farm manage and conserve crop diversity. To date, two biennial project cycles have been concluded (2008, 2010), endowed with altogether US$5.5 to 7 million and covering 11 small-scale and 19 larger-scale projects. The actual success of the second-cycle projects will be independently evaluated.

The market for forest carbon: Afforestation and reforestation projects under the Clean Development Mechanism The targeted ecosystem service Climate change is driven by increasing greenhouse gas (GHG) concentrations in the atmosphere. One strategy to mitigate climate change is to biologically sequester, or remove, carbon from the atmosphere by increasing terrestrial carbon pools, for example, through afforestation and reforestation (A/R). A/R is the direct conversion through humans of nonforest land to forest land through planting, seeding and/or promoting natural seed sources (Nabuurs et al. 2007: 550) on land that was nonforested on a long-term (afforestation) or temporary (refortestation) basis. Carbon sequestration through A/R is a ‘regulating’ ecosystem service, as it contributes to global climate regulation. Through photosynthesis, trees (and plants in general) transform carbon dioxide (CO2), the quantitatively most significant GHG, into carbon. The carbon is stored in the form of biomass (in leaves, branches, trunks and roots) and organic carbon in the soil. Depending on age, site quality, species composition, management style, disturbances and so on, trees may either store more, equal or less CO2 than they release (acting as a carbon sink, reservoir or CO2 source; MA 2005b). The Intergovernmental Panel on Climate Change estimated that A/R could store 197 to 584 megatons of carbon per year from 2008 through 2012 (IPCC 2000: para. 58), making up some 10 to 30 per cent of the annual emissions from deforestation. Instrument evolution The UN Framework Convention on Climate Change (UNFCCC) of 1992 is primarily geared towards the reduction of GHG emissions but treats sinks as equally important. The Kyoto Protocol to the UNFCCC introduced binding emissionreduction targets for industrialized countries and allowed counting removals by sinks (carbon sequestration) towards these targets. Specifically, it was allowed to

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The Nagoya Protocol and the diffusion of economic instruments 143 offset mitigation obligations through A/R projects under the CDM in developing countries and through some additional types of forestry projects under the Joint Implementation mechanism in developed countries. Both the introduction of market-based instruments and the inclusion of sinks were advocated by the US, some other Western emitter countries and parts of the international business community as cost-effective options for achieving the Kyoto targets (Meckling 2011; Ott and Oberthür 1999). They were contested by the EU, developing countries and many environmental organizations who feared, among other things, that offsets and sinks would ease the pressure on tackling the fundamental causes of climate change in the North (Boyd et al. 2008). The resistance was ultimately overcome, including by rigidly capping the offsetting of emissions through credits from CDM A/R projects. The CDM market for A/R offsets formally started with registration of the first project in 2006 and is now operating in the Kyoto Protocol’s second commitment period (2013–2020). The instrument The CDM (Art. 12, Kyoto Protocol) establishes an international market mechanism that creates an artificial commodity: the globally homogenous and commensurable ‘carbon credit’ from mitigation projects in developing countries certified to have resulted in a specific amount of GHG emission reductions or, in the case of A/R projects, CO2 removals. Industrialized countries with reduction targets under the Kyoto Protocol as well as private entities within these countries can buy these certificates to meet part of the Kyoto emission commitments. As a projectbased mechanism, the CDM follows a ‘baseline and credit’ logic: Credits from a project are created when it can be plausibly assumed that emissions have been reduced vis-à-vis a previously defined counterfactual baseline scenario (i.e. the assumed emissions trajectory without the project). This is to ensure that emission reductions are ‘additional’ to any that would have occurred in the absence of the project. Since the Kyoto Protocol targets are binding, the resulting market is a ‘compliance market’. Sellers on the (primary6) market for forest carbon offsets are, in a wide sense, the CDM project participants with at least some ownership or control of the project. Participants stem from host and investor countries and typically include a commercial project developer, public and private investors from industrialized Kyoto countries, carbon seller(s) and others. Up-front investors often expect to recover all or at least a share of their funds through the sale of credits and timber in the future (Corbera and Friedli 2012: 211). Buyers on the primary market are above all industrialized country governments, the energy sector and carbon market players (Peters-Stanley et al. 2012: 13). Buying governments and companies are at the same time often involved in the projects as participants, directly consuming the created offsets. With 44 A/R projects being registered with the CDM in early 2013, sellers on the primary market as well as buyers (likewise around 40) are easily countable

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(UNEP and Risø Centre 2013). With the limited number of participants and transactions, the primary A/R market is a relatively ‘thin’ market. A market transaction consists of the sale or purchase of credits resulting from a CDM A/R project. The projects undergo an elaborate project cycle (Netto and Barani Schmidt 2009) starting with a joint design by host party participants and industrialized country investors, approval of the resulting ‘project design document’ by the host and investor countries and validation by accredited ‘designated operational entities’ against the relevant requirements. These requirements include, for instance, that A/R projects be implemented only on specific lands (e.g. areas not forested before 1990 in the case of reforestation); that the projects and emission removals they create be ‘additional’ (see previous section); that they be designed in a way that minimizes ‘leakage’ (i.e. increases of emissions outside the project’s spatial boundaries resulting from the project); that their socioeconomic and environmental impacts be accounted for in the project design; and that stakeholders be consulted. Once validated and formally accepted (‘registered’) by the CDMs, third-party auditors quantify and verify, in accordance with approved methodologies, the net emission removals generated by the project compared to a business-as-usual baseline. When timber is harvested during the project’s lifespan, the emitted units must be subtracted. Internationally tradable emission credits, called ‘certified emission reductions’ (CERs), are the issues, with one such credit equalling one tonne of carbon dioxide equivalent. Addressing the sector-specific problem of ‘nonpermanence’—that is, the fact that the carbon sequestered in forestry projects can be reversed through, for example, deforestation or natural disasters—A/R projects can only create time-restricted credits: Temporary credits expire after 5 years and long-term credits after a maximum of 60 years. Both types of credits must be replaced by other credits after their expiry. A/R credits can be used to meet an investor country’s Kyoto targets, though only up to 1 per cent (per year) of the country’s respective base year emissions. Typically, buyers pay for the future delivery of credits long before they are issued through binding forward purchases. Instrument effects The number of A/R projects registered with the CDM is a first rough indicator of market size: As mentioned before, by early 2013, altogether 44 projects were registered (UNEP and Risø Centre 2013). The uptake of projects started very slowly in 2006, intensified by 2009 and peaked in 2011. Still, this outcome represents only 0.8 per cent of all CDM projects. It also compares unfavourably with the large number of A/R projects in the voluntary forest carbon market. The niche status of the CDM A/R market is generally attributed to onerous rules and temporary crediting caused by environmental integrity concerns; the risks that investors associate with temporary credits; and the exclusion of A/R credits from the EU Emissions Trading Scheme. Local opposition to plantations and criticism from international nongovernmental organizations (NGOs) also play a role.

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The Nagoya Protocol and the diffusion of economic instruments 145 The market volume for primary market transactions demonstrates the money generated for forest carbon sequestration, weighing the volume of generated CO2 removals with the prices achieved. The total market volume is estimated to have ranged between US$4.5 million (2007) and US$21 million (2011), with an accumulated value of only US$55.6 million (2006–2011, no data available for 2008; Peters-Stanley et al. 2012: 13). While the CDM has thus probably leveraged more money than the Global Environmental Facility for forestry and land-use-based mitigation projects (US$30.6 million in 2007–2010, cf. GEF 2010: 78), the private sector has contributed to this significantly less than expected. Also, the market volume of A/R credits from the CDM is much smaller than that of other CDM sectors and the carbon economy as a whole, totalling US$176 billion in 2011 (World Bank 2012: 10). The amount of issued CO2 credits reveals the mitigation impact of the projects (assuming issuance reflects the actually sequestered amounts of carbon). Between the first-ever issuance of CDM credits from a forestry project in April 2012 and March 2013, 5.7 million temporary credits were generated in altogether seven A/R projects, reflecting the assumed removal of 5.7 megatons of CO2. To what extent these removals are actually ‘additional’ is difficult to assess, and studies have shown that A/R projects have not always convincingly demonstrated their additionality (Corbera and Friedli 2012: 213). Existing uncertainties in carbon accounting scenarios and ill-defined leakage accounting systems can furthermore undermine the projects’ climate benefit (Corbera and Friedli 2012: 213). The claimed mitigation effect of A/R projects is comparatively small: It equals 0.5 per cent of all CDM credits issued until March 2013 (UNEP and Risø Centre 2013) and some 3 per cent of the minimum potential attributed by the Intergovernmental Panel on Climate Change to A/R per year in the first Kyoto Protocol commitment period (197 megatons of carbon per year). Fundamentally, net carbon benefits of plantations are diminished by the release of soil carbon through reforestation and harvesting activities as well as by fires and insect outbreaks, which are particularly likely in the case of large-scale monocultural plantations. The sequestration potential of plantations hence must be related to more effective forms of land-use-based mitigation, in particular the natural expansion of forests through succession (SCBD 2011: 11 and 59). Finally, it is worth reiterating that A/R projects under the CDM do not reduce global GHG emissions but are at best climate neutral. Impacts on biodiversity and the provision of other ecosystem services are potential side effects of forestry projects under the CDM. To date, there are few empirical assessments of existing CDM forestry projects, and the analysis of (potential) ecosystem impacts is often carried out in Project Design Documents (Corbera and Friedli 2012; Thomas et al. 2010). Reviews and empirical literature on other A/R projects—for example, in the voluntary carbon market—highlight that afforestation and reforestation can have both positive and negative ecosystem impacts (e.g. Murdiyarso 2004; SCBD 2003: 58). They can help to restore forest areas, protect watersheds and biodiversity, support the return or survival of native

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plant and animal populations, reduce pressures on natural forests (as sources of forest products) and so forth—but only under certain conditions, such as the use of natural regeneration and native species, minimization of chemical use, and environmentally sensitive foresting techniques and management practices. On the downside, CDM A/R projects can disturb natural ecosystems, intensify land use, promote the clearing of existing natural forests while introducing large-scale monocultural plantations with exotic or genetically modified species, increase erosion, reduce underground water supply and degrade soils and water quality through fertilizer use. Project design documents of registered projects indeed reveal a tendency to at least partially use fast-growing nonnative tree species, and few projects actually forbid the use of fertilizers (Corbera and Friedli 2012: 214). To the extent that plantations are established on agricultural lands, carbon sequestration to offset industrialized countries’ emissions may displace food production in developing countries. Finally, NGOs have highlighted that CDM plantations can exacerbate local land disputes and violence, in individual cases through the eviction of peoples (Grainger and Geary 2011). Indirectly, such side effects may induce further ecosystem degradation.

A market or payment scheme for forest carbon? Reducing emissions from deforestation and forest degradation (REDD+) The targeted ecosystem service The ecosystem service primarily targeted by the emerging REDD+ mechanism is the biological sequestration of carbon through forests, as described previously. Unlike the CDM, however, REDD+ aims to provide this service only partially through (re-)building (new) carbon stocks but above all through conserving existing stocks. Worldwide, forests contain about 50 per cent of terrestrial organic carbon stocks, with forest biomass constituting about 80 per cent of all terrestrial biomass (MA 2005b: 587). Thus the main thrust of REDD+ is to counter deforestation and forest degradation and related emissions: Worldwide, around 13 million hectares of land were annually deforested between 2000 and 2010, with some recent signs of improvement (FAO 2010a), plus 2.4 million hectares of tropical forests were annually degraded during the 1990s (Nabuurs et al. 2007), mainly as a result of agricultural expansion. Deforestation and forest degradation are estimated by the Intergovernmental Panel on Climate Change to have caused about 20 per cent of anthropogenic global CO2 emissions during the 1990s (Denman et al. 2007: 514), rendering forestry the third largest GHG emitting sector. In addition, the tropical forests (including primary forests) addressed by REDD+ are home to millions of people and to more biodiversity than any other terrestrial biome. Beyond carbon and biodiversity, they provide for soil and water protection, fibre, fuel, nonwood forest products and livelihoods as well as sociocultural ‘services’ (MA 2005b).

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Instrument evolution Over the past decades, a number of attempts have been made to curb global (in particular tropical) deforestation (Humphreys 2011). Ultimately, however, these have failed. REDD+ as a new approach to tackling deforestation was initiated from within the climate change regime rather than the previous forestry- and biodiversity-related policy arenas. Already during the Kyoto Protocol negotiations, parties discussed whether ‘avoided deforestation’ (as it was called then) should become an eligible activity for CDM projects, alongside afforestation/reforestation. However, the idea was rejected at the time due to concerns among others by Brazil and the EU regarding uncertainties of GHG emission reduction estimates, the potentially large scale of credits, nonpermanence and leakage (Streck and Scholz 2006). Leakage was feared to be particularly high for avoided deforestation projects. However, when a group of scientists and NGOs in 2003 presented a concept rewarding nations for reducing deforestation at the national rather than project level (Santilli et al. 2003), it was received well by the parties: In 2005, the newly established Coalition for Rainforest Nations under the leadership of Costa Rica and Papua New Guinea requested to take up the issue on the agenda of the UNFCCC negotiations. The subsequent negotiation dynamics of what became titled REDD+ were due to various factors (Wolff 2011): new knowledge—for example, regarding the volume of deforestation-related emissions, the cost effectiveness of avoided deforestation as a mitigation strategy and forest carbon monitoring and accounting—played a role, as well as the widespread perception of REDD+ as a win-win(-win) situation. For developed countries, REDD+ was a means to curb deforestation-related emissions, provide cost-effective offsets and engage developing countries in the process of negotiating a post–Kyoto climate regime. For developing countries, it appeared to be a promising source of revenues. NGOs expected ‘co-benefits’ from REDD+ (at least in its early design) in the form of biodiversity protection and ecosystem services, as well as rural development. In the following process, the scheme’s scope was expanded from ‘deforestation’ (RED) to include forest ‘degradation’ (REDD) and a number of further activities (REDD+). At the time of writing (early 2013), no decision has yet been taken regarding the concrete financing mechanism of REDD+ (market vs. fund/payment). Meanwhile, REDD+ has gained international dynamics outside the UNFCCC through pilot projects financed by newly created multi- and bilateral funds (Cerbu et al. 2011). Unlike the mechanism negotiated within the UNFCCC, however, these pilots are project based. Instrument options The goal of REDD+ is to ‘collectively aim to slow, halt, and reverse forest cover and carbon loss’ (Decision 1/CP.16), either through a market-based or a fundbased (like payments for ecosystem services) design. Both would be based on emission reductions induced by national (as opposed to project-level) policies and measures addressing (a) deforestation, (b) forest degradation and (c) the so-called

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‘+’ activities, namely conservation of forest carbon stocks, sustainable management of forests and enhancement of forest carbon stocks. Respective national policies or measures are not internationally determined. Conceivably, these could include the designation of forest reserves, land tenure reforms, measures countering illegal logging, domestic payment schemes for ecosystem services, investment in monitoring and enforcement capacity, agricultural zoning or restrictions on road building. The success of such activities in terms of emission reductions or removals is to be measured, reported and verified (within national monitoring systems) against national7 ‘reference levels’. These are baselines for measuring progress towards the ultimate goal of REDD+. Parties can develop reference levels relatively flexibly ‘in accordance with national circumstances’. Following strategy and capacity building in developing countries (‘REDD+ readiness’) and the implementation of concrete REDD+ activities, their eventual monetary compensation—whether through the market or a fund—is to be ‘results based’, i.e. tied to quantified emission reductions and removals against the defined reference levels. The national implementation of REDD+ should take into consideration ‘safeguards’ to prevent possible harmful effects. Safeguards pertain to stakeholder participation, addressing the risks of impermanence, leakage and nonadditionality and preventing the conversion of natural forests into plantations. If REDD+ were designed as a market, verified emission reductions and removals would generate certificates that could be traded on the international carbon markets. Developing countries participating in the mechanism would be the sellers. UNFCCC parties with emission reduction targets under the envisaged post–2020 climate agreement, as well as regulated private actors, could buy the certificates, like CDM offsets, to meet part of their obligations. A market-based design of REDD+ would necessitate a decision on the ‘fungibility’ of REDD+ credits: In an ‘integrated market’ approach, they would be fully exchangeable with other credits from the UNFCCC’s compliance market, in a ‘dual market’ approach not. In order to deal with the nonpermanence of biological carbon sequestration, REDD+ crediting could be temporary (like CDM credits from A/R projects), although options such as buffers or insurance solutions are conceivable as well (Dutschke and Angelsen 2008). Designed as an international fund, REDD+ could take at least two forms. First, independent of the carbon markets, voluntary contributions by industrialized countries would ‘feed’ into a self-standing REDD+ fund or a window within the Green Climate Fund established in 2011. Either would provide monies to developing countries covering, for instance, agreed full and incremental costs for REDD+ activities. Second, it has been suggested to alternatively fill a REDD+ fund/window with finances generated indirectly through the carbon markets or through market mechanisms other than the carbon market itself (market-linked approach). Beyond national carbon taxes, this includes revenues from the auctioning of emission allowances at the international, EU or national level. Rather than a market transaction between sellers and buyers of carbon offsets, developing countries implementing REDD+ activities would apply for and receive results-based payments for the ecosystem service of carbon sequestration.

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Potential instrument effects With REDD+ not yet finalized in terms of its finance mechanisms, let alone adopted, its potential effects can be assessed only ex ante. I will focus here on critical factors relating to the potential effects of a market-based REDD+ scheme. The supply of REDD+ credits (ideally) mirrors the level of emission reductions or removals and hence points to the mechanism’s capacity to mitigate climate change. Potential tropical forest sector abatement has been modelled at an impressive 3.5 gigatons CO2 per year in 2030 (Eliasch 2008: 168). Credit supply will depend on, among other factors, the number of developing countries participating in the mechanism, the stringency of (nationally defined) reference levels and the costs of domestic REDD+ implementation. While an undersupply of REDD+ credits would result in high credit prices, an oversupply—at least, if credits are fungible with other certificates—could potentially ‘flood’ GHG markets because avoiding deforestation is regarded as a relatively cheap mitigation option (Stern 2006: 217). Market flooding would depress the prices of other Kyoto credits and hence lessen the incentive for industrialized countries to restructure carbon-based industries. Options suggested to deal with this problem include limiting either the fungibility of REDD+ credits or the abatement effort that can be met from REDD+ credits (‘supplementarity limit’; Eliasch 2008). Factors that drive the climate impact of REDD+ beyond those influencing credit supply include design features dealing with leakage, nonpermanence and additionality as well as the degree to which national REDD+ policies address drivers of deforestation (Angelsen 2008; Palmer and Engel 2009). The demand for REDD+ emission reductions or removals, and hence credits, is likewise crucial for REDD+ effectiveness. Should it be too low, the mechanism will not generate sufficient funds for effective forest protection. Also, low demand would depress REDD+ credit prices, weakening the prices of other credits and lessening the incentives for low-carbon development paths. Demand is determined, above all else, by the level of ambition of emission reduction commitments, followed by supplementarity limits and abatement cost in developing countries (Eliasch 2008: 172). Should the introduction of a market-based REDD+ mechanism not be combined with deeper emission reduction targets for developed countries, REDD+ offsets will lead to higher levels of emissions in developed countries, and the net effect on global emissions will be neutral at best (Boucher 2008). While the post–2020 pledges are yet undecided, the emission reductions agreed upon for the Kyoto Protocol’s second commitment period remain, with about 18 per cent below 1990 levels by 2020, far from the 25 to 40 per cent recommended by scientists. This indicates that at least before 2020, demand would not suffice to achieve significant emission reductions. The prices achieved for credits influence the financing available for implementing REDD+ policies. Prices are determined by the interaction of demand and supply (see previous) as well as by the abatement costs. While it is often assumed that REDD+ activities are a comparatively cheap form of mitigation, some scepticism has been voiced: Apart from the direct costs of building capacity and implementing national REDD+ policies, opportunity costs arise from lost profit

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opportunities that follow from not logging or converting forest land (above all for agricultural uses such as palm oil, soybeans, cattle grazing etc.). When the (volatile) prices on national or global commodity markets exceed the carbon prices, deforestation becomes profitable again. The level of finance generated via a potential REDD+ market indicates whether and how much additional funding must be tapped in order to reach the goal of ultimately halting emissions from deforestation and forest degradation in developing countries. The level of finance is influenced by the demand for REDD+ credits, the relative prices of these credits compared to nonforest credits (see above) and the rules of the mechanism (e.g. supplementarity limits; Eliasch 2008: 183). The Eliasch Review estimates that in order to halve emissions from deforestation by 2030, an annual investment of US$17 to 33 billion is necessary (Eliasch 2008: 75). This figure is limited to funding results-based and fully monitored, reported and verified actions; it does not include the costs of the early phases of REDD+ implementation—strategy/capacity building and policy implementation, which are widely accepted as being unable to attract market-based funding but rather requiring public resources. The Eliasch Review estimates that the global carbon market could only generate around US$7 billion per year for forest abatement (excluding A/R) by 2020, leaving a significant funding gap to be filled from other sources (Eliasch 2008: 182). Impacts on biodiversity and the provision of other ecosystem services are potential side effects of REDD+ (SCBD 2011). The potential of such effects has increased with expanding the mechanism’s scope by the ‘+’ activities (Pistorius et al. 2011). Indirectly, activities enhancing forest carbon stocks can create incentives for the conversion of primary forests and degraded forests into commercial tree plantations. With REDD+ still focusing on (quantitative) biomass production and disregarding (qualitative) forest biodiversity crucial for the resilience of forest ecosystems and the permanence of forest carbon stocks, successful REDD+ policies could also amplify the pressure on nonforest ecosystems with high biodiversity values (‘interecosystem leakage’). Similarly, the inclusion of sustainable management of forests raises concerns because there is no common understanding of the concept or well-defined criteria and indicators (Pistorius et al. 2011). With regard to forest-dependent communities, concern has been voiced that a REDD+ market might lead to increasing land rents and food prices, land speculation and ‘land grabbing’ by carbon traders and governments, subsequently ‘locking up’ forests and jeopardizing the rights of indigenous peoples and local communities to use and access forests and their ecosystem services (Griffiths 2007).

Comparison and concluding assessment This chapter has presented four international-level economic instruments that aim at promoting biodiversity or specific ecosystem services. How do they compare? How do they perform or are they likely to perform in the future? What are implications for the use of economic instruments in international environmental governance?

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The Nagoya Protocol and the diffusion of economic instruments 151 The analysed biodiversity instruments target a provisioning service (i.e. a physical good: wild and agro-GR), while the climate instruments address a regulating service (i.e. an immaterial good: carbon sequestration). Within each policy field, there are underlying differences with regard to the nature of the ecosystem service targeted, the causes of its degradation and/or its political intricacies. For example, the GR regulated under the CBD/NP grow in the wild and are jeopardized by land use pressures and pollution. In contrast, the GR governed by the ITPGR have been developed by humans over centuries and are jeopardized by underutilization. Furthermore, although the nature of carbon sequestration is basically the same CDM A/R projects and REDD+, the former aims to build new carbon sinks (through setting up plantations), while the latter also conserves existing sinks and pools (by protecting natural forests) and potentially other ecosystem services. Looking at the genesis of these instruments, the primary objective of the CBD’s ABS rules was to address an equity issue—the increasing appropriation of GR by Northern-based industries through IPRs—by introducing benefit sharing. The ITPGR’s thrust rather was to secure access to GR. While we can thus understand the market-based design of the CBD’s ABS regime as a result of developing countries asserting their interests (in benefit sharing), the ITPGR’s nonmarket design largely reflects the interests of industrialized nations (in access). Ironically, in the case of the A/R-CDM, the constellation is reversed: Its market-based design reflects industrialized nations’ interest in tapping the relatively cheaper mitigation potential of other regions (the Global South) and sectors (forestry). With REDD+, the finance mechanism has not yet been selected, and the distribution of identifiable preferences remains unclear. Coming to the core of the analysed economic instruments, we have looked at two markets for ecosystem services, including one direct (ABS under the CBD) and one tradable rights market (CDM A/R projects); one non–market-based payment scheme (ABS under the ITPGR); and one economic instrument in which the finance options are still under discussion (REDD+). The two markets were established through the creation and allocation of exclusive property rights, while the ITPGR allocates nonexclusive rights. The markets analysed exhibit different levels of competitiveness, linked to different levels of homogeneity and commensurability in the traded goods and to different numbers of market participants. In terms of the (potential) ecological performance of the instruments analysed, the review of data is rather sobering: They all exhibit modest effects at best. The CBD has so far failed ‘to ensure the fair and equitable sharing of benefits arising out of the use of genetic resources’ (GBO-3 2010: 19), and it remains unclear to what extent benefits are invested in nature conservation. The implementation of the Nagoya Protocol can be expected to improve the situation, but it cannot address some of the more fundamental obstacles to effectiveness: For example, the market demand for GR from in-situ habitats in provider countries is bounded to some extent by the free availability of the pre–CBD or, arguably, pre–NP material and genetic information stored ex situ. Problems in enforcing PIC and MAT as well as user measures result not only from weak institutional capacities but from the difficult traceability of GR linked to their small size as well as the immateriality,

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reproducibility and synthesisability of genetic information (see also Tvedt and Schei, this volume). Finally, the NP’s institutional safeguard of directing ABS revenues into biodiversity protection is rather weak. The implementation of the ITPGR’s MLS at the national level is ongoing and its effects—including the generation of monetary benefits—are still limited. The reluctance of national gene banks to incorporate material into the MLS is related to technical complexities and possibly lack of trust; the reluctance of companies to do so reflects free-riding behaviour. Since monetary benefit sharing is only mandatory when further research and breeding are restricted, monies will in the future, too, only accrue when patents, trade secrets or technological restrictions are applied. Especially the use of patents, however, is largely limited to NorthAmerican seed companies, while the seed sectors in Europe and other regions mostly use plant breeders’ rights, which to a smaller extent restrict further research and breeding and thus do not trigger monetary benefit sharing. Ultimately, monetary benefit sharing may hence be limited to a specific segment of the global seed industry and may not generate as much money as expected. It is not without irony that linking mandatory monetary benefit sharing to patents, which were at the heart of the original international dispute, might in fact make them more acceptable in the long run. With regard to the CDM-market, the amount of emissions reduction attributable to forestry projects is limited and the projects’ additionality not always undisputed. The small market size is linked to, among other factors, onerous governance structures necessary to maintain the CDM’s ecological integrity as well as the risks related to project development (e.g. with regard to land tenure) and to the investment in carbon credits (nonpermanence, temporary nature of credits). In addition, the largest existing cap-and-trade system, the EU Emissions Trading Scheme, excludes credits from CDM forestry projects. Beyond carbon sequestration, A/R projects have the potential to unfavourably affect biodiversity and ecosystem services other than carbon sequestration. The potential effects of REDD+ are still subject to conjecture. Independent of the future finance mechanism, national implementation (including the setting of reference levels and provisions for measuring, review and verification) will crucially affect REDD+ effectiveness. If a market-based design were chosen, the mechanism’s overall climate benefits would depend on concrete market modalities (fungibility of credits, supplementarity limits etc.) as well as on the interaction of supply and demand—and hence the ambitiousness of the overall emission targets and the costs of national REDD+ policies. The inherent coupling of emission markets with global goods and capital markets—impressively visible when prices in the EU Emissions Trading Scheme crashed in the aftermath of the global financial crisis—has further implications: Forest conservation and the climate effects from REDD+ would be tightly interlinked with the volatile and complex dynamics of those other markets that are beyond the ‘control’ of the REDD+ actors. With the economic instruments presently implemented generating only modest effects, we should ask whether the dominance of this type of instrument in the policy discourse is justified. Certainly, their present performance

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The Nagoya Protocol and the diffusion of economic instruments 153 reflects various circumstances, including time lags, difficult enforceability, nonambitious targets or suboptimal design. However, some challenges seem to be directly linked to their ‘economic’ nature and more specifically to the ‘marketbasedness’ of some of them: For instance, the income and ecological effects generated from direct or tradable rights markets depend on the dynamics of demand, supply and coupled markets. Offset markets will not reduce environmental degradation but redistribute mitigation efforts. Paying for the provisioning of ecosystem services at the global level may ‘crowd out’ voluntary sustainable resource use practices. It is hence questionable whether economic instruments are a panacea for the international governance of biodiversity and ecosystem services. While economic instruments have their strengths, a broad range of factors—from problem characteristics to actor constellations, instrument design, policy process and market conditions—ultimately influences their performance in specific contexts. Depending on these, other instruments may be more effective—or legitimate—in many cases. In the context of the international governance of ABS, this implies that approaches should be explored that aim at creating common pools for GR, for instance at the regional level or in the context of a Global Multilateral BenefitSharing Mechanism (Art. 10, NP).

Notes 1 It should be recognized, however, that for specific types of resources—such as seed (with the exception of landraces) and breeding lines—markets had already existed prior to the CBD. 2 The scope of the NP covers GR that are of nonhuman origin and do not fall under specialized ABS regimes (such as within the ITPGR or WHO), access to which has taken place after entry into force of the NP and within jurisdictions that have national ABS legislation. 3 Data from 1993 (entry into force of the CBD) serve as a baseline. 4 The term ‘buyer’ is not completely adequate, as payment for PGRFA is only due in specific cases (see below). 5 Interview with a member of the Secretariat of the ITPGR, 03 July 2012. 6 A primary market covers the initial transactions between CDM project developers and investors, a secondary market subsequent trades. It is the transactions on the primary market that serve to finance the provision of ecosystems’ ‘carbon sequestration’ function. 7 Subnational accounting and monitoring, reporting and verification (MRV) is allowed ad interim.

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Boucher, D. (2008) Filling the REDD Basket: Complementary Financing Approaches, Cambridge, MA: Union of Concerned Scientists. Boyd, E., Corbera, E. and Estrada, M. (2008) ‘UNFCCC Negotiations (pre-Kyoto to COP-9): What the Process Says about the Politics of CDM-sinks’, International Environmental Agreements 8: 95–112. Brazil (2010) Fourth National Report to the Convention on Biological Diversity: Brazil, October 2010, Brasília: Ministry of the Environment, Secretariat of Biodiversity and Forests, Office of the National Program for Biodiversity Conservation. Cerbu, G.A., Swallow, B.M. and Thompson, D.Y. (2011) ‘Locating REDD: A Global Survey and Analysis of REDD Readiness and Demonstration Activities’, Environmental Science and Policy 14: 168–180. Chiarolla, C. and Jungcurt, S. (2011) Outstanding Issues on Access and Benefit Sharing under the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture, Background Study Paper, Zurich and Oslo: The Berne Declaration (Switzerland) and Development Fund (Norway). Corbera, E., Brown, K. and Adger, W.N. (2007) ‘The Equity and Legitimacy of Markets for Ecosystem Services’, Development and Change 38(4): 587–613. Corbera, E. and Friedli, C. (2012) ‘Planting Trees through the Clean Development Mechanism: A Critical Assessment’, ephemera 12(1): 194–229. Deke, O. (2008) Environmental Policy Instruments for Conserving Global Biodiversity, Berlin: Springer. Denman, K.L., Brasseur, G., Chidthaisong, A., Ciais, P., Cox, P.M., Dickinson, R.E., Hauglustaine, D., Heinze, C., Holland, E., Jacob, D., Lohmann, U., Ramachandran, S., da Silva Dias, P.L., Wofsy, S.C. and Zhang, X. (2007) ‘Couplings Between Changes in the Climate System and Biogeochemistry’, in S. Solomon, D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor and H.L. Miller (eds.) Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge, UK, and New York: Cambridge University Press, 500–587. Dutschke, M. and Angelsen, A. (2008) ‘How Do We Ensure Permanence and Assign Liability?’ in A. Angelsen (ed.) Moving Ahead with REDD: Issues, Options and Implications, Bogor, Indonesia: Center for International Forestry Research, 77–86. Eliasch, J. (2008) Climate Change: Financing Global Forests: The Eliasch Review, London: Routledge. FAO (2010a) Global Forest Resources Assessment 2010: Main Report, Rome: Food and Agriculture Organization. FAO (2010b) The Second Report on the State of the World’s Plant Genetic Resources for Food and Agriculture, Rome: Food and Agriculture Organization. FAO (2011) Second Global Plan of Action for Plant Genetic Resources for Food and Agriculture, Rome: Food and Agriculture Organization. FAO (2013) Seeds and Plant Genetic Resources: A Basis for Life, http://www.fao.org/ agriculture/crops/core-themes/theme/seeds-pgr/en/ (accessed 9 February 2013). GBO-3 (2010) Global Biodiversity Outlook 3, Montreal, Canada: Secretariat of the Convention on Biological Diversity. GEF (2010) OPS4: Progress toward Impact—Fourth Overall Performance Study of the GEF, Washington, DC: Global Environment Facility, Evaluation Office. Grainger, M. and Geary, K. (2011) The New Forests Company and its Uganda Plantations, Oxford, UK: Oxfam.

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The Nagoya Protocol and the diffusion of economic instruments 155 Griffiths, T. (2007) Seeing ‘RED’? ‘Avoided Deforestation’ and the Rights of Indigenous Peoples and Local Communities, Moreton-in-Marsh, UK: Forest Peoples Programme. Halewood, M., Noriega, I.L. and Loafi, S. (2013) ‘The Global Crop Commons and Access and Benefit-Sharing Laws: Examining the Limits of International Policy Support for the Pooling and Management of Plant Genetic Resources’, in M. Halewood, I.L. Noriega and S. Loafi (eds.) Global Commons: Challenges in International Law and Governance, Abingdon, Oxon, UK: Routledge, 1–34. Humphreys, D. (2011) ‘International Forest Politics’, in G. Kütting (ed.) Global Environmental Politics: Concepts, Theories and Case Studies, London and New York: Routledge, 135–150. IPCC (2000) IPCC Special Report: Land Use, Land-Use Change, and Forestry—Summary for Policymakers, Intergovernmental Panel on Climate Change, http://www.ipcc.ch/ pdf/special-reports/spm/srl-en.pdf (accessed 29 March 2013). ITPGR (2011a) Experience of the IARC of the CGIAR with the Implementation of the Agreements with the Governing Body, with Particular Reference to the Use of the Standard Material Transfer Agreement for Annex 1 and non-Annex 1 Crops, IT Doc. IT/ GB-4/11/Inf.5, January 2011. ITPGR (2011b) Report on the Implementation of the Multilateral System of Access and Benefit Sharing, IT Doc. IT/GB-4/11/12, January 2011. ITPGR (2011c) Reviews and Assessments under the Multilateral System, and of the Implementation and Operation of the Standard Material Transfer Agreement, IT Doc. IT/ GB-4/11/13, January 2011. ITPGR (2012) Resource Mobilisation: Implementation of the Strategic Plan for the Implementation of the Benefit-Sharing Fund, IT Doc. IT/ACFS-7/12/3, September 2012. IUCN and UNEP-WCMC (2011) World Database on Protected Areas (WPDA), October 2010, http://www.unep-wcmc.org/world-database-on-protected-areas-wdpa_76.html (accessed 3 April 2013). Kloppenburg, J. and Kleinman, D.L. (1987) ‘Seed Wars: Common Heritage, Private Property, and Political Strategy’, Socialist Review 95: 7–41. Loreau, M., Naeem, S. and Inchausti, P. (eds.) (2002) Biodiversity and Ecosystem Functioning, Oxford, UK: Oxford University Press. MA (2005a) Ecosystems and Human Well-Being: General Synthesis, Report of the Millennium Ecosystem Assessment, Washington, DC: Island Press. MA (2005b) ‘Forest and Woodland Systems’, in Millennium Ecosystem Assessment (2005) Ecosystems and Human Well-being: Current State and Trends. Findings of the Condition and Trends Working Group. Volume I, Washington, DC: World Resources Institute, 585–622. McAfee, K. (1999) ‘Selling Nature to Save It? Biodiversity and the Rise of Green Developmentalism’, Environment and Planning D: Society and Space 17(2): 133–154. Meckling, J. (2011) ‘The Globalization of Carbon Trading: Transnational Business Coalitions in Climate Politics’, Global Environmental Politics 11(2): 26–50. Miles, E.L., Underdal, A., Andresen, S., Wettestad, J., Skjærseth, J.B. and Carlin, E.M. (2001) Explaining Environmental Regime Effectiveness: Confronting Theory with Evidence, Cambridge, MA: MIT Press. Miteva, D.A., Pattanayak, S.K. and Ferraro, P.J. (2012) ‘Evaluation of Biodiversity Policy Instruments: What Works and What Doesn’t?’ Oxford Review of Economic Policy 28(1): 69–92.

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Murdiyarso, D. (2004) ‘Assessing Biodiversity in LULUCF-CDM Projects: Towards Synergizing UNFCCC and CBD’, in T. Okuda and Y. Matsumoto (eds.) Kyoto Mechanism and the Conservation of Tropical Forest Ecosystem, Tokyo: Organising Committee of the International Symposium/Workshop on the Kyoto Mechanism and the Conservation of Tropical Forest Ecosystems, 101–106. Nabuurs, G.J., Masera, O., Andrasko, K., Benitez-Ponce, P., Boer, R., Dutschke, M., Elsiddig, E., Ford-Robertson, J., Frumhoff, P., Karjalainen, T., Krankina, O., Kurz, W.A., Matsumoto, M., Oyhantcabal, W., Ravindranath, N.H., Sanz Sanchez, M.J. and Zhang, X. (2007) ‘Forestry’, in B. Metz, O.R. Davidson, P.R. Bosch, R. Dave and L.A. Meyer (eds.) Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge, UK, and New York: Cambridge University Press, 543–584. Netto, M. and Barani Schmidt, K.-U. (2009) ‘The CDM Project Cycle and the Role of the UNFCCC Secretariat’, in D. Freestone and C. Streck (eds.) Legal Aspects of Carbon Trading: Kyoto, Copenhagen, and Beyond, Oxford: Oxford University Press, 177–192. OECD (2008) Report on Implementation of the 2004 Council Recommendation on the Use of Economic Instruments in Promoting the Conservation and Sustainable Use of Biodiversity, Paris: Organization for Economic Cooperation and Development Working Group on Economic Aspects of Biodiversity. Ott, H. and Oberthür, S. (1999) The Kyoto Protocol: International Climate Policy for the 21st Century, Berlin: Springer. Palmer, C. and Engel, S. (eds.) (2009) Avoided Deforestation: Prospects for Mitigating Climate Change, London and New York: Routledge. Parker, C. and Cranford, M. (2012) The Little Biodiversity Finance Book: A Guide to Proactive Investment in Natural Capital (PINC), Oxford, UK: Global Canopy Programme. Peters-Stanley, M., Hamilton, K. and Yin, D. (2012) Leveraging the Landscape: State of the Forest Carbon Markets 2012, Washington, DC: The Ecosystem Marketplace. Pistorius, R. (1997) Scientists, Plants and Politics: A History of the Plant Genetic Resources Movement, Rome: International Plant Genetics Research Institute. Pistorius, T., Schmitt, C.B., Benick, D. and Entenmann, S. (2011) Greening REDD+: Challenges and Opportunities for Forest Biodiversity Conservation, Policy Paper, Second revised edition, Freiburg, Germany: University of Freiburg. Rosendal, K.G. (2006) ‘Balancing Access and Benefit Sharing and Legal Protection of Innovations from Bioprospecting: Impacts on Conservation of Biodiversity’, Journal of Environment and Development 15(4): 428–447. Santilli, M., Moutinho, P., Schwartzman, S., Curran, L., Nepstad, D. and Nobre, C. (2003) Tropical Deforestation and the Kyoto Protocol: A New Proposal, paper presented at the Ninth Meeting of the Conference of the Parties (COP-9), December 2003, Milan, Italy. SCBD (2003) Interlinkages between Biological Diversity and Climate Change: Advice on the Integration of Biodiversity Considerations into the Implementation of the United Nations Framework Convention on Climate Change and its Kyoto Protocol, CBD Technical Series No. 10, Montreal: Secretariat of the Convention on Biological Diversity. SCBD (2008) Access and Benefit-Sharing in Practice: Trends in Partnerships across Sectors, CBD Technical Series No. 38, Montreal: Secretariat of the Convention on Biological Diversity. SCBD (2011) REDD-plus and Biodiversity, CBD Technical Series No. 59, Montreal: Secretariat of the Convention on Biological Diversity. SCBD (2013) List of Countries and Regions with Measures (Type of measure considered: legislation), Convention on Biological Diversity, https://www.cbd.int/abs/measures/ groups.shtml (accessed 9 January 2013).

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The Nagoya Protocol and the diffusion of economic instruments 157 Stern, N. (2006) The Economics of Climate Change: The Stern Review, HM Treasury/ Cabinet Office, Cambridge, UK: Cambridge University Press. Streck, C. and Scholz, S.M. (2006) ‘The Role of Forests in Global Climate Change: Whence We Come and Where We Go’, International Affairs 82(5): 861–879. TEEB (2010) The Economics of Ecosystems and Biodiversity: Mainstreaming the Economics of Nature: A Synthesis of the Approach, Conclusions and Recommendations of TEEB, Mriehel, Malta: Progress Press. Thomas, S., Dargusch, P., Harrison, S. and Herbohn, J. (2010) ‘Why Are There So Few Afforestation and Reforestation Clean Development Mechanism Projects?’, Land Use Policy 27(3): 880–887. UN (2011) The Future We Want − Zero Draft of the Rio+20 Outcome Document, http:// www.uncsd2012.org/futurewewant.html (accessed 3 April 2013). UNEP (2004) The Use of Economic Instruments in Environmental Policy: Opportunities and Challenges, Nairobi, Kenya: United Nations Environmental Programme. UNEP and Risø Centre (2013) CDM/JI Pipeline Analysis and Database, 1 March 2013, http://cdmpipeline.org/publications/CDMPipeline.xlsx (accessed 29 March 2013). Vatn, A. (2010) ‘An Institutional Analysis of Payments for Environmental Services’, Ecological Economics 69(6): 1245–1252. Wolff, F. (2011) ‘Explaining the Construction of Global Carbon Markets: REDD+ as a Test Case?’ International Journal of Global Energy Issues 35(2/3/4): 255–274. Wolff, F. (Forthcoming) Economic Instruments for Ecosystem Services in International Biodiversity and Climate Change Politics: Discourses, Diffusion, Effects, unpublished PhD dissertation, Freiburg/Berlin. Wolff, F., Schleyer, C. and Arts, B. (Forthcoming) ‘The Discourse and Politics of Marketbased Instruments for Ecosystem Services: Introduction’, Journal of Environmental Policy and Planning. World Bank (2012) State and Trends of the Carbon Market 2012, Washington, DC: Carbon Finance at the World Bank. Wunder, S. (2005) Payments for Environmental Services: Some Nuts and Bolts, CIFOR Occasional Paper No. 42, Jakarta, Indonesia: Center for International Forestry Research. Young, O.R. (2011) ‘Effectiveness of International Environmental Regimes: Existing Knowledge, Cutting-edge Themes, and Research Strategies’, Proceedings of the National Academy of Sciences of the United States of America (PNAS) 108(50): 19853–19860.

9

Beyond Nagoya Towards a legally functional system of access and benefit sharing

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Morten Walløe Tvedt 1

Introduction Article 15.7 of the Convention on Biological Diversity (CBD) obliges user countries to take legal, administrative and policy steps so that value creation in the bio-economy can contribute to conservation and sustainable use of biological diversity. To this effect, this chapter explores the legal functionality of international governance of access and benefit sharing (ABS) under the CBD and its Nagoya Protocol (NP) and what can be done to enhance it through national legislation building on and implementing the Protocol. As Article 4.4 puts it, the Nagoya Protocol ‘is the instrument for the implementation of the access and benefit-sharing provisions of the Convention’. Therefore, in discussing the implementation of the NP, the binding obligations of CBD Article 15 remain at the centre of attention. Since the NP is subject to an individual ratification process, one can foresee that there will be three groups of countries in the years to come: states party to both the NP and the CBD; states party to the CBD that are not (yet) party to the NP; and the one nonparty to the CBD (i.e. the US). The main focus of this study is on the first group of countries. Still, it is important to discuss what CBD members outside the NP can do to make ABS legally functional. The CBD is a quid pro quo in which the biodiversity-rich countries undertook obligations to conserve biological diversity, whereas the actual users of genetic resources (GR) that create economic and other benefits should contribute to the conservation and sustainable use of biological diversity as a resource. The main rationale of the benefit-sharing system is to provide a commercial mechanism for channelling economic and other resources into activities that promote conservation. CBD members are obliged under Articles 15 and 3 of CBD to do so. These provisions, however, target states rather than the actual users. International law needs to be transformed into national law to oblige these users and become legally functional. The legal functionality of ABS relies on strong incentives for actors to follow the rules or a related effective enforcement mechanism. As argued elsewhere in this volume (Tvedt and Schei, this volume), the legal concept ‘genetic resources’ is both flexible and dynamic and sensitive to current developments in biotechnology and biology. This flexibility is essential for the system to cope with the

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Beyond Nagoya 159 rapid pace of innovation and technological achievements in the sector. A functional ABS system also needs to introduce legal certainty by establishing clear and concise rules that are enforceable by courts. A court can only apply the legal provision if the system is based on considerations that are amenable to verification by external evidence. Failure to enact compatible legislation in user and provider countries makes it very difficult to enforce ABS in courts of law or through other judicial means. Legal certainty implies that those subject to legislation can understand their obligations and rights. Lack of consistency could create legal uncertainty in ABS transactions. The first task here is to identify the challenges facing a legally functional ABS system. The NP still leaves questions undecided. For some questions, further interpretation is needed and there is room to adopt different solutions in national law. Second, a look at the core rules in the NP giving guidance to users and user countries is offered. Following this, a look back at the access side of the NP is taken so as to identify how these two sides of regulation are connected. This part includes a look at the exclusions from the NP, which can be expected to become a core challenge for making ABS functional. Before concluding, I explore the link between access rules and the user side of ABS to identify their close interlinkage in a functional system.

Challenges to a functional ABS system One of the major challenges to make ABS functional in practice arises from the general legal landscape in which it is embedded. The CBD contains a number of obligations for member countries, which have now been fleshed out in the NP. The members of the CBD and NP are all states, and states as a general rule in public international law are subject to the obligations. In that sense, neither the CBD nor the NP as such is binding upon any other entities than their respective member countries. No private party, company or researcher has any right or obligation under the CBD or NP. ABS is mainly an international mechanism. It targets situations in which a GR from one country is used within the jurisdiction of another country. The provider country has sovereign rights to regulate matters relating to resource management within its territory, inter alia access to GR (inter alia as recognized by CBD Art. 15.1). A pillar and general rule of international law is the principle of sovereignty. From a user-side perspective, sovereignty establishes that it is up to the legislation of the user country to decide whether and how there shall be any obligations on the user of foreign GR. Sovereignty also limits the legal validity or force of rules from one country in the territory of another. Even a providing country with perfectly drafted access legislation has no guarantee of receiving benefits. Any user legislation must be correlated to legislation in provider countries in order to contribute to making the ABS system functional. One way of doing this could be to oblige the actual users under their jurisdiction to comply with access standards and make it possible to pursue breaches of legislation and contracts through the legal system of the user country.

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To capture the potential value of genetic material at the time of access has proven far from simple during the 20 years in which the CBD has been in force. At the time of access, the value of GR is often only latent. In some very specific situations, the value may be more easily discernible, as when a company knows a particular virus will be used as raw material in the development of a new vaccine. The critical issue is how to determine whether the accessed material will be used to realize the potential or actual value of the units of heredity (which is the criterion for being a GR, according to CBD Art. 2: see Tvedt and Schei, this volume). At the point of time when biological material crosses a border, it depends on the intentions of those accessing the material whether the transaction qualifies as a GR or not. As intentions are neither observable nor verifiable at this stage, they are not easy to estimate or verify. In addition, far from all cross-border transfers of biological material are driven by definite intentions. A small bag of seeds may be removed for the ostensible purpose of making a bracelet or serving as food, whereas the actual reason is to plant the seeds to breed a new variety. Also, intentions can change. So at the time of access, the economic value of the material will be less apparent than when it has led to a marketable product or service. This palpable lack of certainty at the time of access, combined with the one-sided focus on regulation of access, is one probable reason ABS has yielded only limited benefit sharing until now. It is at the point of utilization that the actual or potential value of the GR becomes evident and more easily verifiable externally. As soon as the use has resulted in a product and revenue starts flowing in, the benefits become manifest. At this point in time, it is easier to know and prove before a court that genetic material, directly or indirectly, has formed part of the value-capturing process in retrospect (Tvedt and Young 2007). This was also recognized by an expert group convened during the negotiations on the Protocol: ‘Actual or potential use of genetic material indicates an attribution of value’ (CBD 2008b: Annex, para. 12). Still, various technical legal problems may make it difficult to legally enforce the obligations on the GR user, particularly beyond the jurisdiction of the provider country (CBD 2008a; Young and Tvedt 2009). The problem at the time of utilization, however, is that the genetic material now is outside the jurisdiction of the providing country. If user countries do not address this challenge in their implementation of the CBD and the NP, a huge loophole in the system will be maintained (Tvedt and Fauchald 2011). ABS governance under the CBD is based on the notion of a contract between the provider country and user (Bhatti et al. 2009; Glowka 1998). The NP continues to build on this contractual approach, even though two decades of its application have produced very disappointing benefit-sharing results. ABS governance under the CBD can be regarded as a system for creating incentives for private (or public) entities to share benefits generated by the GR use in a fair and equitable manner so as to support conservation and sustainable use of biodiversity. CBD Article 15.7 foresees the use of administrative, policy and legal measures by the contracting parties to the CBD to create such incentives. Lack of incentives has been identified as a leading cause of limited success of benefit sharing in practice. The incentive structure and reasons benefit sharing is important have remained

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underexplored in the scholarly literature (Tvedt and Young 2007). A core question is why a company from one country, which finds a useful GR on the territory of another country, should share a part of its earnings with that country. The GR user has a moral obligation, translated into law in CBD Article 15, to share a fair and equitable part of the benefits arising from such utilization with the providing country. Those benefiting from biodiversity should contribute to its sustainability over the longer term. When a company’s shareholders want the largest return from their investment, however, voluntary benefit sharing is an illusion. At the moment, there is a lack of both positive incentives and negative sanctions motivating companies to share benefits.

The Nagoya Protocol and the user of genetic resources The key to creating a functional system for benefit sharing is the rules targeting GR use. In this section, three issues connected to the GR user are explored. First, a closer look at the concept of ‘utilization of genetic resources’ as a trigger point for obligations on the user is offered. Exploring when GR are utilized and regulating such activities could resolve many of the difficulties with the term ‘genetic resources’. This is followed by an exploration of the concept of ‘fair and equitable’ as a qualifier for the level of benefits to be shared under the CBD and NP. In practice, this moral consideration has been left to the negotiations between two parties to a contractual relationship. The third subsection brings into focus the relationship between the rules of the Nagoya Protocol governing the user side and how they link to the provider side of the ABS system. Exploring the content of ‘utilization of genetic resources’ This section looks at practical alternatives for specifying when GR are utilized. It shows how the Protocol could have given momentum to making benefit sharing happen, first by making it mandatory to establish concrete benefit-sharing obligations and second by instituting a clear definition of this term. Finally, it shows that the Protocol failed in the attempt at developing this essential legal criterion in a functional manner. This leads ABS back to access as the main trigger point. All in all, 193 countries are currently CBD members and thus legally bound to take relevant measures independently of whether they ratify the NP. The obligation on user countries to create conditions for benefit sharing follows from CBD Article 15.7: Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, [. . .] with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms.

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Benefit-sharing obligations have constituted substantive international law since the CBD’s entry into force in 1993. The Convention’s wording establishes ‘utilization’ as a core element of the ABS system by virtue of being the important trigger point for benefit sharing (CBD 2008b; Tvedt and Young 2007: 58–60 and 65–68; Young and Tvedt 2009: section 4.1.2). Although all countries whose nationals may be GR users are obliged to take ‘legislative, administrative or policy measures’, enabling benefit sharing to happen in a fair and equitable manner, a survey carried out in 2006/07 found very few examples of such measures (Tvedt and Young 2007). This lack of compliance, technically speaking, amounts to a breach of obligation in public international law. A breach of international law, according to international customary law, could lead to state responsibility, laid out in the draft articles on State Responsibility.2 ‘Utilization’ as a trigger point for benefit sharing has the great advantage that it is manifest in a legally provable manner when a certain company or person has utilized GR. If implemented in a functional manner, this could enhance legal certainty for both users and providers. Courts would be able to assess whether GR have been used in the chain of value creation. If countries were to establish this trigger point for the benefit-sharing obligation, it would mark an important step towards achieving a functional ABS system. During the negotiations on the NP, a consensus was growing that ABS could only work in practice if user countries took appropriate steps to change domestic legislation. When the mandate for the negotiations was adopted in 2004, it was essentially meant to target the benefit-sharing side of ABS (see also Wallbott et al., this volume). It was, however, only at a much later stage, after the African countries brought forward ‘utilization of genetic resources’ as a core concept, that it received attention (see also Wallbott, this volume). In 2009, an expert group on utilization was established to report on proposals for this important cornerstone of a functional ABS regime. The expert group provided a long list of actions with explanations on what should be regarded as utilization, including: ‘1) Genetic modification; 2) Biosynthesis; 3) Breeding and selection; 4) Propagation and cultivation of the genetic resource in the form received; 5) Conservation; 6) Characterization and evaluation; 7) Production of compounds naturally occurring in genetic material’ (CBD 2008b: Annex, para. 13). This list, however, was not included in the Protocol and is not binding in law. Countries did not so much disagree with these actions as examples of utilization, but they would not allow the list to become part of a treaty obligation. Thus, clarity and legal certainty of defined obligations linked to utilization by users was omitted. The definition of GR utilization, which eventually found its way into Article 2 NP, reads like this: (c) ‘Utilization of genetic resources’ means to conduct research and development on the genetic and/or biochemical composition of genetic material, including through the application of biotechnology as defined in Article 2 of the Convention.

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The essence of this definition is the formulation ‘conduct research and development on the genetic and/or biochemical composition of genetic material’. ‘Research’ is a broad term and covers both academic and nonacademic activities. ‘Development’ can be understood differently, too, from changes at the genetic level to commercial development of products based on genetic material. The certainty a list with explanations could have provided now depends on more complex matters of interpretation. The wording does not explicitly mention ‘genetic information’, which is nevertheless included in the definition of ‘genetic resources’ (see Tvedt and Schei, this volume). ‘Fair and equitable’ benefit sharing: Depending on mutually agreed terms NP Article 5.1 and CBD Article 15.7 refer to how benefit sharing can proceed in practice: ‘Such sharing shall be upon mutually agreed terms.’ This signifies how the NP is building on private law agreements as a tool of making ABS legally functional. The NP neither attempts to specify what is meant by ‘fair and equitable’ in a substantive manner nor does it establish any procedural standards to this effect. The reference to mutually agreed terms (MAT) thus makes the acceptable level of benefit sharing completely relative to any level to which the provider and user agree. The rules regulating the access side (NP Art. 6) contain no reference to benefit sharing. This leaves the level of benefits solely up to the outcome of negotiations in individual ABS contracts, without any multilateral system for reviewing whether benefit-sharing arrangements are fair and equitable. Also, no guidance is given from the global level on how to interpret an ABS contract in a court. The focus on MAT here makes it dubious whether a providing country that has legally established a fixed level of benefit sharing could claim that level as binding if it were not accepted under private contract or by MAT. Ensuring that the sharing will be fair and equitable is left to negotiation and mutual agreement. This is an obstacle to the establishment of an internationally agreed level for ‘fair and equitable’ against which each contract could be assessed. The NP’s user-side regulations link ABS to a private law agreement at the time of access to the GR. This may be too early to have proper information about the actual or potential value of the GR and hence, it will be difficult to decide on what would constitute fair and equitable benefit sharing. The Protocol does not oblige user countries to impose general benefit-sharing obligations on users that do not have a contract. The Protocol only obliges user countries to establish rules encouraging users to comply with the access measures of the provider. User-side obligation to promote compliance with access rules The NP takes utilization as its point of departure for the ABS system. From a legal functionality perspective, it hence becomes interesting to look at where and how

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the term is used in the Protocol—in other words, which obligations are connected to ‘utilization of genetic resources’ as a trigger point for benefit sharing? The main article addressing GR utilization is NP Article 15:

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1.

2.

Each Party shall take appropriate, effective and proportionate legislative, administrative or policy measures to provide that genetic resources utilized within its jurisdiction have been accessed in accordance with prior informed consent and that mutually agreed terms have been established, as required by the domestic access and benefit-sharing legislation or regulatory requirements of the other Party. Parties shall take appropriate, effective and proportionate measures to address situations of noncompliance with measures adopted in accordance with paragraph 1.

The obligation upon the user country is ‘to provide that genetic resources utilized within its jurisdiction have been accessed in accordance with’ prior informed consent (PIC) and MAT. The obligation is rather formal in its scope; countries are required to provide for that GR utilization within their territory has happened according to PIC or MAT. NP Article 15 does not require countries to oblige their users to share benefits with the providing country, and the main regulatory burden is left with the providing country. User countries must have a system (legal or administrative) encouraging GR users to meet the obligations regarding access in the providing country, but no substantial rule in the NP obliges the user country to enact legislation requiring actual users to share benefits. From the perspective of countries rich in biological diversity, it redirects or returns the regulatory burden back to them by linking the obligation of benefit sharing to the system of access in the providing country. This reinforces the problem of sovereignty described above. Countries are also obliged to take measures to address the situation in which a user has not complied with the access legislation of the provider country. The wording in the NP (‘appropriate, effective and proportional measures’) leaves considerable discretion to user countries with regard to their implementation of this obligation. From a practical perspective, there are several ways of ensuring that GR that are utilized under a country’s jurisdiction have been accessed in accordance with the access rules of the provider. For example, users could be required to prove relevant GR were accessed legally according to the regulations and policies of the provider country. Furthermore, it would also be possible to establish substantive obligations on product control and approval before a product based on GR could be produced and marketed in order to implement this obligation. There are not many examples of user countries that have taken legislative steps to ensure compliance with access regulations of another country. Section 60(1) of the Nature Diversity Act (2009) of Norway stands out as a notable example of an even stricter rule than what follows from NP Article 15:

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The import for utilization in Norway of genetic material from a state that requires consent for collection or export of such material may only take place in accordance with such consent. The person that has control of the material is bound by the conditions that have been set for consent. The state may enforce the conditions by bringing legal action on behalf of the person that set them. (Emphasis added, unofficial translation) This provision gives effect to the providing country’s ABS tools in a direct manner by two important rules. First, import is illegal if access to the imported material to Norway has not followed the rules on ABS in the providing countries. Second, if consent has been given, the conditions set out there shall be linked to the material for the future. The two rules together attempt to create an incentive for parties to enter into ABS agreements and also to resolve the problem of tracking an ABS claim from the jurisdiction of the providing country into the user state. Although the Norwegian rules go beyond what is required in the NP, there are several obstacles to their enforcement under Norwegian jurisdiction (Tvedt and Fauchald 2011: 392). Access regulated by the MAT, which is a private law agreement, is more likely to be enforceable in Norway than PIC, which is a public administrative decision (Tvedt and Fauchald 2011: 395 and 398). Providing countries should therefore consider basing their law on private law agreements rather than administrative decision. When user countries implement PIC and MAT into national legislation, it is important not to create disincentives for users to follow the ABS legislation of the providing country. Sanctions for not having an ABS contract need to be at least as strict as the consequences for companies that have entered into such accords. Otherwise, the user country legislation will create a disincentive for the user to adhere to the rules of the providing country at all. In a situation in which user countries do not implement equally strong reactions for noncompliance, a disincentive is created for other countries to implement strict obligations on their biotechnology. And when user country obligations vary in severity, large companies accessing GR will be encouraged to relocate to the country with the weakest obligations, prompting a ‘race to the bottom’ (enacting weaker rules) in countries that want to attract businesses involved in GR utilization. The trouble is partly caused by the lack of any minimum standards in the NP for user countries. If there is a private law contract, general contract law helps in its enforcement despite a number of specific challenges for GR contracts (as identified by Tvedt and Fauchald 2011). Since the user-side regulation in the Nagoya Protocol is linked to the enforcement of access contracts, the next topic to explore is how providing countries can regulate access aiming at a functional system and how a provider country can use private law contracts to bridge the gap of sovereignty and make ABS functional.

Access as dealt with in the Nagoya Protocol The next step is to explore the rules set forth by the NP for the provider countries. The reference back to access legislation as the core of the user country obligations

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reinforces the importance of enacting access legislation in providing countries. NP Articles 6 (GR) and 7 (traditional knowledge) set out the main rules on international access standards. Without access legislation, a providing country must rely on the goodwill and philanthropy of the bioprospector to receive any benefits. As the main user obligation is to take measures to ensure that the actual GR user has complied with the access requirements of a provider country, implementing access legislation has become even more important than it was before. The CBD and NP refer to two legal tools for implementing domestic access rules. The one is an administrative decision on PIC and the other a tool of private contract law, the MAT. The legislation on access of a providing country could include one or both of these legal tools. The NP details what providing countries may determine in their access regulation. The NP sets out a list of detailed criteria on the establishment of access regulations in the providing country in Article 6.3. One important criterion is that the access rules shall ‘[p]rovide for legal certainty, clarity and transparency’ (Art. 6.3(a)) and ‘fair and nonarbitrary’ procedures for granting access (Art. 6.3 (b)). These and other rules shall ensure a transparent and unequivocal system for GR users who aim at getting access legally. The regulation in the providing country also needs to disclose the procedures and the manner in which the user can enter into a contract providing access. This can include ‘[t]erms on benefit-sharing, including in relation to intellectual property rights; [t]erms on subsequent thirdparty use, if any; and [t]erms on changes of intent’ (Art. 6.3(g)). This streamlining of access can bring us two steps closer to a functional legal system. First, by standardising access rules, legal certainty for the users or applicants will be enhanced because they will know more of what is expected from them. Access procedures would become clearer and easier to follow. Second, standardization could also help enforcement in the user country. If the access side of ABS is streamlined, it would be more difficult for user countries to use legal uncertainty in providing countries as an argument for not making ABS enforceable under their jurisdiction. These obligations upon the providing countries are far more detailed than the obligations upon the user countries to ensure that benefits are actually shared in an equitable manner. The level of detail of these rules is impressive in requiring that providing countries take very concrete steps in their implementation of the NP. There is an urgent need for providing countries to put this in place. During the NP negotiations, a proposal was made that access to GR for foreigners should be on the same terms as for national users. This was at odds with the international character of ABS governance and did not succeed. It was a peculiar suggestion insofar as ABS, as outlined in CBD Article 15, is an international mechanism. It was not intended to regulate domestic GR use. Despite this peculiar attempt to confuse ABS, the NP clearly established ABS as an international mechanism, as this proposal did not make it into the final NP. During the negotiations, several proposals were put forward which, if approved, would have emptied the ABS system. The functionality of the ABS system could have been undermined if significant exceptions and exclusions had

Beyond Nagoya 167 been introduced. The next section reviews proposals to remove or exclude certain GR and situations from the Protocol.

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Excluding access situations from the Nagoya Protocol The rules of the NP imply that the essence of ABS is provider-country legislation based on a contract at the point of time of access. In the negotiations, there were comprehensive discussions on exemptions from the general ABS norms. This is reflected in several articles of the NP, notably Articles 4 and 8. In the following, I discuss in particular special provisions for noncommercial research, pathogens and (future) sectoral agreements. Noncommercial research One particular concern was that ABS should not unnecessarily hinder pure academic research. Particular procedures for ‘noncommercial research purposes’ received great attention during the negotiations and are now embedded in Article 8(a), which requires each party to: Create conditions to promote and encourage research which contributes to the conservation and sustainable use of biological diversity, particularly in developing countries, including through simplified measures on access for non-commercial research purposes, taking into account the need to address a change of intent for such research. The rationale behind simplified access for research purposes is based on the idea of not obstructing academic research with burdensome access procedures. The wording is based on the assumption that commercial and noncommercial research can be clearly distinguished. This assumption permeates a number of submissions to the negotiations leading to the NP (Biber-Klemm et al. 2010). In reality, noncommercial research can often lead to discoveries of substances and knowledge of potential commercial value. Universities can take part in a commercial productdevelopment line. Furthermore, the intent and ambitions of the original researcher may change from publication to patenting and licensing. A private company may use the published research and specimens as a starting point for commercialization, even if the researcher’s work was purely academic and without commercial intent. If access with noncommercial intent is laid open or unregulated, then benefit sharing, for all practical reasons, will depend on philanthropy and in effect be voluntary, as commercial users can also gain access via academic channels. Special rules for noncommercial research could potentially therefore create a huge loophole and even a disincentive to state that access is sought for commercial uses. In addition, there is a challenge of time. The longer the research takes and the more is invested in a certain accession of GR, the more the researcher will probably feel psychologically remote from the original access situation. In effect, this

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might cause the user to feel remote from the provider and also less obliged to go back to the initial provider for benefit sharing. Taken together, these factors add up to a greater challenge for the global ABS system than if no private law agreement was required for noncommercial access. The wording of Article 8(a) suggests a simplified access procedure without clarifying the relationship between such simplified access and the normal system of access according to NP Article 6. The reference seemingly presupposes that the regular access procedure will be less simplified. As NP Article 6.3 establishes detailed rules for what access permission must entail, one may ask why the negotiators of the Protocol did not rather specify in Article 6.3 some additional requirements for the noncommercial access situation. Those who advocate steps to address the special needs of the noncommercial research sector tend to emphasize simplified access for noncommercial use (Biber-Klemm et al. 2010) without considering the need to couple such simplified access with enforceable and simplified benefit-sharing obligations when or if any benefits occur. The alternative view is that a system entailing a simple access procedure needs stronger regulation of utilization to capture the situation of changed intent (CBD 2010). This view is based on the inherent complexity of the matter and the blurred division of commercial and noncommercial research, which will tend to create a loophole in the system. The difficult technical issue is how to establish simplified access regulations for noncommercial research purposes while taking into account situations in which such research would subsequently lead to the creation of economic or other commercial benefits. This is not easily solved at the point of time of access. At the point of time of utilization and creation of benefits, the differentiation between commercial and academic research is manifest and externally verifiable. Thus, in drafting access agreements, providing countries should impose detailed rules on what happens in case the intent changes. As long as user-country legislation does not target this situation, providing countries must secure their interests at the point of access—including academic or apparently noncommercial users. Lack of user-country legislation can therefore contribute to hindering academic access. The challenge of time between the initial bioprospecting activity and commercial use will probably limit the potential for benefit sharing in these situations. Special regulation of access to pathogens Pathogens are broadly understood as microorganisms that have a negative effect on other organisms. The special regulation, or rather exclusion, of pathogens from the scope of the Protocol was a highly contentious issue during the last year of negotiations. An example that sheds light on the ABS conflict pertaining to pathogens is the case of Indonesia refusing to hand over its virus strains of avian flu for free, as demanded by the World Health Organization (WHO). Indonesia required benefits to be shared from its utilization and argued that if the samples were to be

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sent out without any form of agreement, the results of research and development would most likely be patented. As a result, the vaccines would be available only at high and often unaffordable prices to the country in which avian flu was most widespread. Pathogens are one of the most obvious cases of ABS because samples are often used to make a vaccine or a medicine for a particular disease. The International Chamber of Commerce argued that pathogens were outside the scope of the CBD as follows: The Convention on Biological Diversity (CBD) encourages the ‘preservation of biodiversity’ and ‘the sustainable use of its component’. These goals must be interpreted within the context of the clear and reasonable meaning of the explicit text of the Treaty itself. The CBD definitions of biological and genetic resources do not specifically mention pathogens or pests—single cell or multi-cellular organisms which can so often cause damage to human, animal and plant health. Instead, Article 2 of the Convention defines biological and genetic resources as those having either ‘actual or potential use or value for humanity’. While certain uses of pathogens and pests may be envisaged that merit inclusion under the IR [International Regime], the conventional understanding of the term ‘pathogen’ or ‘pest’, where society aims at eradication or control of the organism, does not meet this test. A reasonable interpretation of this article, therefore, would seem to exclude those pathogens and pests from the scope of the CBD which represent only a ‘threat’ to biodiversity and to the overall ecosystem. (ICC 2009: 5–6) This suggested interpretation by the ICC presupposes that the CBD only covers biodiversity that is desirable to protect, not organisms with a potentially negative effect on other organisms. There is, however, no indication in the CBD that harmful elements of biodiversity are or should be exempt from the scope of the Convention. No sources oppose the inclusion of a snake with a deadly poison in the conservation objectives of the CBD. Equally, the CBD does not state that any GR from organisms harmful to humans or animals should be outside the scope of ABS. The definition of ‘genetic material’ in Article 2 refers to ‘biological origin’ without any limitations to it. Furthermore, when used to develop vaccines and medicines, pathogens are economic resources just like any other biological source of genetic material. In fact, it is the organisms with most lethal effect on humans that are probably (and ironically) of greatest interest from a biotechnology perspective: Venomous snakes and spiders, lions and crocodiles are all valuable in terms of biological diversity. Moreover, the same microorganisms under different environmental circumstances can be pathogenic, occasionally pathogenic or not pathogenic at all. The classification of ‘human, plant and animal pathogens’ as a separate class would thus be a futile exercise. Thus, neither the wording of the CBD nor its objectives open up for the ‘reasonable interpretation’ presented by the ICC.

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Pathogen exchange is an essential aspect of the ABS system: There is a close connection between the accessed pathogenic GR and the end product. There is a direct connection between the pathogen and the particular invention, such as a medicine or a vaccine, derived therefrom. This makes the pathogen/vaccine situation a typically easily proven ABS situation. The country providing the samples of or accession to the pathogen has a significant need for the end product derived from said pathogen. The disease caused by the pathogen in question will typically be a major problem in the source country, as exemplified by the case of Indonesia and avian flu. Benefit sharing in the form of affordable access to the resulting medicines will therefore be highly significant for exactly these countries. Pathogens mutate and take on new forms. They will always represent an interesting and valuable GR for the pharmaceutical sector and a potentially valuable resource for provider countries through benefit sharing. Instead of taking pathogens out of the Protocol, the negotiating parties recognized special needs and inserted a special rule under Article 8(b) that requires each party to: [P]ay due regard to cases of present or imminent emergencies that threaten or damage human, animal or plant health, as determined nationally or internationally. Parties may take into consideration the need for expeditious access to genetic resources and expeditious fair and equitable sharing of benefits arising out of the use of such genetic resources, including access to affordable treatments by those in need, especially in developing countries. This wording gives the parties less freedom to exempt pathogens from ABS than originally suggested. It establishes an important principle by coupling expeditious access and equally expeditious benefit sharing, thereby reinforcing the balanced bonds between these two sides of ABS. There are other international processes that are important to give rights to and utilization of pathogens, notably the patent system represented both by the granting of patents and the law-making process of the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore of the World Intellectual Property Organization (WIPO); the work on microorganisms for agriculture of the Commission on Genetic Resources for Food and Agriculture under the Food and Agriculture Organization (FAO); and the WHO system for exchange of viruses. To date, all ABS for pathogens are covered by the NP. To what extent pathogens will be covered by the NP also in the future is left to states to decide, as Article 8 must be seen in the light of Article 4. The next section discusses Article 4 that sets discretion for other organizations to regulate ABS and thus take certain resources out of the Protocol. Sector-wise reopening of the NP Compromise Another politically difficult issue during the negotiations was the relationship between the NP on the one hand and other international instruments and work relevant to ABS on the other. NP Article 4 establishes four different rules, all

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Beyond Nagoya 171 of which delimit the scope and applicability of the ABS system under the CBD. The text is difficult to penetrate and its consequences not easily foreseen. Beyond establishing the NP as the main tool for implementing ABS, it permits existing obligations, in casu the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR), a certain lex specialis status that shall not be amended by the NP. Article 4 also keeps the door open for specialized ABS instruments to be devised for specific GR. In this regard, several other international organizations have discussed relevant arrangements since the adoption of the NP in October 2010 (see also Oberthür and Pożarowska, this volume). This is at the same time a challenge for a uniform ABS system. May 2011 saw the conclusion of the lengthy negotiations on a system of exchange for pandemic viruses. The result was a new standard material agreement under the auspices of the WHO. With regard to access to viruses, this standard material transfer agreement contains rules on both access and benefit sharing. One possible concern is whether the balance under NP Article 8 requiring ‘expeditious fair and equitable sharing of benefits’ will be appropriately reflected when the WHO deals with the matter, not least because the power play is different there than in the CBD. In June 2011, the Working Group on Marine Biological Diversity beyond Areas of National Jurisdiction decided to include in negotiations the question of benefit sharing from the use of marine resources beyond national jurisdiction. For these resources, the patent system is the only legal system establishing rights to such material. The interesting question is whether there is a need for specific (access and) benefit-sharing arrangements regarding these resources. In July 2011, the aforementioned FAO Commission decided to undertake intersessional work on ABS for six groups of GR of importance to food production. In this work, it is essential to take on board technical studies of the different sectors and their perceptions of international law rather than simply basing a new text on the assumption that these groups of organisms should be regulated by particular ABS rules (see Rosendal et al., this volume). WIPO’s Intergovernmental Committee on GR deals with the link between ‘genetic resources’ and intellectual property rights. Also, the results from these long ongoing talks will affect the functionality of ABS under the NP. These four UN organizations are all caretakers of legitimate global concerns. The quick responses in addressing ABS within these arenas after the agreement in Nagoya can be interpreted as forum shopping. The motivation for and results of these processes are not easily predicted. It will be a challenge for the delegates to the CBD and NP to keep all these negotiations under surveillance and to ensure that new ABS regimes will contribute to conservation of biological diversity, its sustainable use and sharing of benefits.

Rules establishing the practical link between utilization and access The approach with the greatest potential to increase the legal functionality of ABS governance is to see the system of access, utilization and sharing of benefits in

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close conjunction (Tvedt and Fauchald 2011). A major challenge for ABS is how to enforce MAT, PIC or even provider rules across borders, that is, under another jurisdiction. There are considerable obstacles in such cross-border situations, where user measures play an important role in addressing cross-border disputes and disagreements. More specifically, this leads to exploring: (1) how MAT could be enforced across borders; (2) how PIC (i.e. a PIC decision’s requirements) could be enforced across borders (since MAT could be incorporated in a PIC decision, there is a certain overlap here); and (3) how compliance with access legislation can be enforced were a user simply to ignore PIC (and MAT) requirements. Enforcement rules establish a link between utilization and creation of benefits back to sharing with the providers or custodians of GR. The task here is to look at a number of legal issues in this respect. As described earlier, there are political and legal obstacles connected to giving the laws of one country effect under the jurisdiction of another. Therefore, NP Articles 15 and 18, dealing with enforcement, are of crucial interest. Tvedt and Fauchald (2011) conduct a test of enforcement of an ABS claim under the legal situation in Norway in the three situations of noncompliance described above. They explore three noncompliance situations in order to investigate whether it is possible under Norwegian law to pursue a claim for fair and equitable benefit sharing before Norwegian courts with any chance of success. The main finding is that only if there is a contract can benefit sharing agreed in this contract be effectively enforced before a court; the situation in which GR are taken without any form of permit is the one that is most difficult to pursue in the court system. This illustrates the real challenges of law in making ABS functional and that the MAT procedure is the most viable legal tool in today’s system. The Protocol on enforcement of PIC and MAT and tackling noncompliance CBD Article 15 prescribes MAT in two different contexts. The first involves MAT at the point of time of access; the latter is connected to the manner in which benefits shall be shared (Article 15.7, second sentence). Despite the similar use of terminology and the fact that both refer to a similar contractual mechanism, they also refer to different points in time and situations. Thus the CBD prescribes two contractual mechanisms: one when giving access and another when benefits are to be shared. Article 18.1 of the Protocol encourages providers and users to include information in the MAT that is negotiated at the time of access about a number of topics and in particular the jurisdiction under which the agreement shall be governed, the applicable background law and options for alternative dispute resolution. One core user obligation is to take measures in user-country legislation as set out in Article 18.2 and 18.3 concerning enforcement of MAT by using the legal system of the user country. There is no corresponding reference to enforcement of PIC. This entails an interesting distinction in the respective enforcement of PIC and MAT. The legal recourse the user country is obliged to open for the providing countries refers only to the enforcement of the private law agreement and does not open for requiring the enforcement of the administrative decision of granting access in the PIC. This follows the general tendency in the NP to focus on the

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Beyond Nagoya 173 enforcement of MAT without giving legal recourse to enforcing the administrative PIC decision. In the debates regarding ABS, CBD is often characterized as a ‘bilateral’ approach to ABS, whereas the ITPGR is characterized as a ‘multilateral’ approach. These characteristics are often coupled with the view that the multilateral approach of the ITPGR is easy and functional, whereas the bilateral one is referred to as being a complex system. One common feature, however, is that both systems are based on private law agreements: the ‘standard material transfer agreement’ and the ‘mutually agreed terms’. The ITPGR is ‘multilateral’ by being based on a standard agreement that is not negotiated individually. In fact, NP Article 19 encourages parties to develop ‘model contractual clauses’. Most often in international law, ‘multilateral’ and ‘bilateral’ refer to the countries being parties to an agreement, the criterion being whether an agreement is between two states only or more than two states. The use of these terms appears more confusing than clarifying. The ITPGR could therefore be called a ‘standardized contractual approach’ whereas the CBD/NP could be called a ‘tailor-made contractual approach’ that could become a ‘model contractual approach’ if the system under Article 19 is used. As Tvedt and Fauchald conclude, the easiest legal vehicle to enforce in the Norwegian legal situation is the private law agreement. Ironically, the MAT is the easiest enforceable ABS situation, because it is governed by international private law already. In addition, the NP offers most support to this legal situation. The focus of NP Article 6 on the requirements to be set out in the PIC is therefore somewhat misleading to a providing country implementing access legislation. It reduces the real chance of provider countries to enforce their sovereign rights by setting conditions on access and utilization one-sidedly in the PIC. The system in the NP encourages provider countries to set the conditions for access in the (bioprospecting) agreement rather than in the PIC. The third problematic situation arises when the user has breached an access law and there is no PIC or MAT. Due to the principle of sovereignty, protection against violations of access law is extremely weak in the legislation of a user country. In this situation, the user country and the providing country have merely an obligation to collaborate to solve the issue—the providing state has not been given any further rights under the jurisdiction of the user country. Ironically enough, these situations, in which the user has made no real attempt to meet ABS requirement—he has ignored the law—are the most difficult to enforce or pursue by legal means. The Protocol does not oblige countries to make the access law of one country directly enforceable under the jurisdiction of the user country. Here, countries are encouraged to collaborate. Enforcement of prior informed consent: An example As seen above, the Protocol does not require user countries to make the PIC enforceable under their law. For ABS to become functional, countries might want to consider how they can give legal effect also to the PIC under their own legislation. Here, Norway has come up with an interesting rule: ‘The person that has

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control of the material is bound by the conditions that have been set for consent’ (Norwegian Nature Diversity Act Art. 60, first para., second phrase). The NP has no corresponding clause obliging user countries to implement any act giving direct effect in national legislation to the conditions set for the consent (as does the Norwegian act). This rule will help enforcement to some extent since it would make the content of a PIC binding under national law. However, despite this clear wording, the Norwegian example suggests that there is no guarantee that a PIC will be enforced by national courts, and for a number of reasons (Tvedt and Fauchald 2011). One important reason is that Norwegian courts can hardly decide on the validity of an administrative decision of another country. It would be very problematic from a sovereignty perspective. Different administrative systems and principles of interpretation of administrative decisions exacerbate the obstacles in the way of enforcing PIC in the user-country jurisdiction. As seen previously, the NP does not help here, as there is no requirement to give legal effect to PIC. NP Article 15.1 says only that each party shall ‘take appropriate, effective and proportionate legislative, administrative or policy measures to provide that genetic resources utilized within its jurisdiction have been accessed in accordance with prior informed consent and that mutually agreed terms have been established’, and Article 15.3 says that ‘Parties shall, as far as possible and as appropriate, cooperate in cases of alleged violation of domestic access and benefit-sharing legislation or regulatory requirements’. Thus, the obligation is to collaborate, not to make the terms and content of the PIC of another country binding under the user-country law. This is a challenge to the functionality of the ABS.

Concluding remarks: Compatible user-country measures as key The impact of ABS arrangements under the CBD and its NP depends on the manner in which the relevant rules and principles are transformed into national legislation and policy. There is a need to be very practical for these rules to lead to behavioural changes amongst users and providers. If not, ABS arrangements will not have the expected impact on conservation and sustainable use of biological diversity. The Protocol, once in force, will not in itself be able to ensure in practice a fair and equitable sharing of benefits. The poor history of ABS implementation, despite the legally binding language of CBD Article 15.7, is a reminder of the discrepancy between states undertaking an obligation in law and actually implementing it in national legislation, especially among user countries. There is still a lack of documented examples of clearly stated intentions actually leading to benefit sharing. One task for an international ABS regime is to encourage or incentivize all users to actually comply with its rules. Therefore, one way forward may be to require all countries to report on the ‘appropriate legal, administrative and policy measures’ they have taken to ensure compliance with ABS according to CBD Article 15.7. A corresponding decision could be adopted by the Conference of the Parties to the CBD independently of the work on the Protocol and its ratification. A review process could also create an

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Beyond Nagoya 175 incentive for states to ratify the Nagoya Protocol, knowing that their ABS implementation is going to be reviewed independently of membership of the Protocol. The main challenge to achieving a legally functional ABS system consists, however, in getting provider and user countries to enact compatible national legislation, so that (a) incentives are created for users to enter into appropriate contracts; (b) such contracts are made enforceable in the jurisdictions where the GR are used; and (c) a system is set up for collecting and redistributing part of these benefits back to the custodians of biological diversity. An overall virtue of an ABS system is probably to make it simple for users not to feel as if they are taking a lot of unnecessary steps without any effect or impact on conservation and sustainable use of biological diversity. Conservation and sustainable use cannot be achieved by legal measures alone. ABS is just a tool and innovative mechanism for creating and realising the value of GR. The fundamental difficulty of the access-contract approach is that of regulating benefit sharing by contract when biological material crosses borders. The main concept of CBD Article 15 as to ‘genetic resources’ is inherently difficult to determine objectively at the time of access, because it will depend upon the ‘intention’ of the exporter or those accessing biological material (Tvedt and Schei, this volume; Medaglia and Silva 2007; Schei and Tvedt 2010; Tvedt and Young 2007: section 4.1 and 4.2). In reality, there are, however, disincentives for companies to fully comply with ABS. If a user can utilize GR from another country without suffering consequences for noncompliance with ABS requirements under the legislation of the user country, there will be few incentives to disclose the intention of the access as bioprospecting (Tvedt and Young 2007: 31; Young and Tvedt 2009: 56). In fact, under the company laws of developed countries, it can be illegitimate to undertake transactions that do not increase the net profit of the company. The literature has indicated that the larger companies increasingly want to appear as legitimate GR buyers (Rosendal 2006). To achieve a legal, functional system, it is essential to create balanced systems in both user and provider countries. The opening in the NP for sector-wise ABS rules for pathogens, academic use and other more or less specified groupings of GR might take care of important and specific rationales. The danger is fragmentation of what is covered by the general ABS rules of the NP. ABS establishes a mechanism to counterbalance private exclusive rights to innovation and discovery based on genetic material. When certain uses or resources are taken out of the scope of ABS under the Protocol, there is no guarantee that the balance required in the CBD is maintained. In other forums, the negotiating power differs from that in the CBD. Article 4 opens for a continuous renegotiation of the balance of ABS. This increases the risk that the patent system will become stronger in creating rights to these objects. ‘Access’ has most often been understood as the point of time at which someone acquired the biological sample hosting the GR. There is, however, another, competing understanding of when ‘access’ happens: at the point of time when the GR are accessed in the sense of their becoming utilized. Since ‘access’ is not defined by the CBD or NP, there is considerable discretion for state practice to give it a

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more specific content. This understanding could enhance legal certainty in international ABS law by firmly excluding trade in commodities as a matter of ‘access’. But if the biological material is used to realize the genetic information therein, then ‘access to GR’ will take place in isolation from access to the physical sample. One argument for this understanding is that it circumvents the obstacles connected to controlling all biological resources crossing borders for the purpose of finding out whether they are going to be used for the sake of their genetic information. This also has potential to promote access for pure academic research. Whether such an interpretation would be compatible with access standards and the understanding of ‘access’ in the NP remains an open question, which needs to be further discussed. Recognising that the value of genetic material often lies in the information the genes are carrying, the informational aspects of biological resources can even cross borders in a digitized manner, making it even more impossible to use the point of time of access to a sample functional as a trigger point. Problems also arise when the material was physically accessed long ago, but the information in the genetic material was not utilized until much later. By defining the notion of access as when the genetic material is used, changes in intention would be captured. Whether this solution would be politically acceptable is an open question. If ABS is to be functional as an innovative mechanism to give value and create incentives for countries to conserve biodiversity, the incentives need to be built into the system. The key to making ABS legally functional while ensuring revenue for the conservation and sustainable use of biodiversity is held by the user countries and the companies creating the benefits based on the GR of other countries. For this to happen, users—companies and others—need to change their behavior and contribute in concrete cases to conservation and sustainable use. The Nagoya Protocol gives some useful guidance on how legal systems can be developed further, but without implementation into national legislation, the Protocol cannot be expected to alter the behaviour of GR users.

Notes 1 The research presented in this chapter is partly a contribution from the Fridtjof Nansen Institute (FNI), Norway, as part of a research project on access and benefit sharing carried out in cooperation with the multidonor ABS Capacity Development Initiative and by the research project Biotechnology in Agriculture and Aquaculture—Effects of Intellectual Property Rights in the Food Production Chain funded by the Norwegian Research Council. 2 Responsibility of States for Internationally Wrongful Acts, International Law Commission, Yearbook of the International Law Commission, 2001, Vol. II (Part Two), entered into force 9 June 2001.

Bibliography Bhatti, S., Carrizosa, S., McGuire, P. and Young, T. (2009) Contracting for ABS: The Legal and Scientific Implications of Bioprospecting Contracts, IUCN Environmental Policy and Law Paper No. 67/4, Gland, Switzerland: International Union for the Conservation of Nature.

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Beyond Nagoya 177 Biber-Klemm, S., Martinez, S.I., Jacob, A. and Jevtic, A. (2010) Agreement on Access and Benefit Sharing for Non-commercial Research, Bern: Swiss Academy of Science. CBD (2008a) Concepts, Terms, Working Definitions and Sectoral Approaches Relating to the International Regime on Access and Benefit-sharing, UN Doc. UNEP/CBD/ABS/ GTLE/1/INF/2, 29 November 2008. CBD (2008b) Report of the Meeting of the Group of Legal and Technical Experts on Concepts, Terms, Working Definitions and Sectoral Approaches, UN Doc. UNEP/CBD/ WG-ABS/7/2, 12 December 2008. CBD (2010) Report of a Scientific Experts Meeting on Access and Benefit-sharing in Non-Commercial Biodiverity Research, UN Doc. UNEP/CBD/COP/10/INF/43, 22 October 2010. Glowka, L. (1998) A Guide to Designing Legal Frameworks to Determine Access to Genetic Resources, Bonn: International Union for Conservation of Nature (IUCN)—Environmental Law Centre. ICC (2009) Pathogens and the International Regime on Access and Benefit-Sharing, Policy Brief Document No. 450/1051, 11 September 2009, Paris: International Chamber of Commerce. Medaglia, J.C. and Silva, C.L. (2007) Addressing the Problems of Access: Protecting Sources, While Giving Users Certainty, IUCN Environmental Policy and Law Paper No. 67/1, Gland, Switzerland: International Union for Conservation of Nature. Rosendal, G.K. (2006) ‘Regulating the Use of Genetic Resources: Between International Authorities’, European Environment 16(5): 265–277. Schei, P.J. and Tvedt, M.W. (2010) ‘Genetic Resources’ in the CBD: The Wording, the Past, the Present and the Future, FNI Report No. 4/2010, Lysaker, Norway: Fridtjof Nansen Institute. Tvedt, M.W. and Fauchald, O.K. (2011) ‘Implementing the Nagoya Protocol on ABS: A Hypothetical Case Study on Enforcing Benefit Sharing in Norway’, Journal of World Intellectual Property 14(5): 383–402. Tvedt, M.W. and Young, T.R. (2007) Beyond Access: Exploring Implementation of the Fair and Equitable Sharing Commitment in the CBD, IUCN Environmental Policy and Law Paper No. 67/2, Gland, Switzerland: International Union for Conservation of Nature. Young, T.R. and Tvedt, M.W. (2009) Balancing Building Blocks of a Functional ABS System, FNI Report No. 7/2009, Lysaker, Norway: Fridtjof Nansen Institute.

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10 The impact of the Nagoya Protocol on the evolving institutional complex of ABS governance Sebastian Oberthür and Justyna Pożarowska Introduction The relationship with other international institutions was a central issue in the negotiations and forms a central element of the 2010 Nagoya Protocol to the Convention on Biological Diversity (CBD). Access to and benefit sharing from genetic resources (ABS) cuts across a number of other issue areas implicating various other international institutions, including the World Trade Organization (WTO), the UN Convention on the Law of the Sea (UNCLOS), the World Intellectual Property Organization (WIPO), the Antarctic Treaty (AT) System, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) of the Food and Agriculture Organization (FAO), the World Health Organization (WHO) and others, as further elaborated in this chapter. How the new ABS Protocol under the CBD should relate to these other international institutions was a major contentious issue in the negotiations and is prominently addressed in the Protocol (Buck and Hamilton 2011; Nijar 2011; Wallbott et al., this volume). This chapter undertakes to assess the impact of the Nagoya Protocol on the institutional complex of ABS governance. We develop our argument in three steps. First, we introduce a conceptual framework by clarifying the notion of institutional complexes. We introduce ‘interplay management’ as a major mechanism shaping interinstitutional divisions of labour within these multi-institutional governance architectures. We furthermore develop, building on the relevant literature, a framework for the systematic assessment of the impact of interplay management decisions taken within elemental institutions of an institutional complex on the evolution of other elemental institutions and thus the broader complex. Second, we present the institutional complex of global ABS governance by introducing the component institutions of the complex as belonging to either of three distinctive sub-complexes characterized by varying kinds of differentiation (benefit appropriation, sectoral specialization, geographical specialization), with only the CBD featuring in all of them.1 Third, we analyse on this basis the impact of the Nagoya Protocol on the highly ‘fragmented’ institutional complex of global ABS governance. To this end, we analyse relevant post–Nagoya developments in the other component institutions. We find that the discernable effects differ across

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sub-complexes in accordance with the latters’ distinct divisions of labour and the differentiated impulse of the Nagoya Protocol. Overall, we argue that the Protocol can be understood as an attempt to preserve and reinforce the central position of the biodiversity regime in international ABS governance by providing guidance to future developments within other relevant institutions (as opposed to challenging these institutions). The Protocol has consolidated and clarified the division of labour existing in the three distinctive sub-complexes. In so doing, it triggered or at least facilitated new developments in other component institutions of the overall complex, especially as regards the sub-complexes involved in a sectoral and geographical specialization.

Conceptual framework Institutional complexes and related divisions of labour The proliferation of institutional complexes in the literature reminds us of the need to have clear criteria for the identification of institutional complexes. Many if not most issue areas of global governance are affected significantly by more than one international institution. Consequently, the analysis of international governance has increasingly moved from the exploration of specific institutions to the investigation of institutional/regime complexes or architectures (Biermann et al. 2009; Keohane and Victor 2011; Oberthür and Stokke 2011; Raustiala and Victor 2004). As the number of identified institutional complexes continues to grow, we should be wary of their arbitrary identification (Orsini et al. 2013). In a first step, we may define an institutional complex as a set of two or more international institutions that are interdependent and as such interact to cogovern a particular issue-area in international relations. This definition is compatible with the definition by Raustiala and Victor as ‘partially overlapping and non-hierarchical institutions governing a particular issue-area’ (Raustiala and Victor 2004: 279). However, it includes two significant specifications. First, the independent coexistence of a number of international institutions is not enough. Only by influencing each other’s emergence and development (institutional dynamics) or their consequences in various domains (effectiveness), the institutions become relevant for each other and ‘overlap’ so as to cogovern. Second, for a set of institutions to qualify as an institutional complex, the interaction among them needs to amount to an enduring interdependence relationship as regards their governance efforts (see, also for further references, Stokke and Oberthür 2011: 10–13). In addition, the definition does not explicitly address the issue of hierarchy as highlighted by Raustiala and Victor. Whereas international organizations and treaties are not formally hierarchically structured, their interdependence and interaction may be more or less asymmetrical so that an element of informal hierarchy might not be excluded a priori (Orsini et al. 2013). Since issue areas are, ultimately, socially constructed, we may employ issuearea delimitations that are widely shared by policy makers and other researchers in order to determine the borders of institutional complexes. In contrast to

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international regimes, institutional complexes are rarely ‘negotiated’ and policy makers thus do not regularly define the boundaries of institutional complexes. However, regime members increasingly develop explicit shared understandings of which other institutions are relevant for their governance efforts. Such shared understandings can serve as a useful point of reference, as may, as a second-best criterion, the delimitations applied by other researchers (Stokke and Oberthür 2011: 10–13; see also discussion by Orsini et al. 2013). A concept that allows us to grasp the structures of institutional complexes is the ‘division of labour’ between the elemental institutions. It implies some kind of (functional) differentiation between the elemental institutions in either of at least three ways. First, varying elemental institutions may specialize on various regulatory subsets or sectors of the overall issue area. In climate governance, for example, the International Civil Aviation Organization (ICAO) focuses on greenhouse gas emissions from international aviation, while the Montreal Protocol for the protection of the ozone layer addresses certain industrial greenhouse gases (Keohane and Victor 2011; Liu 2011). Second, institutions within a complex may specialize on the supply of certain governance functions such as the creation of knowledge, regulation, capacity building or enforcement, as is apparent in Arctic governance (Stokke 2011). Third, elemental institutions may spatially specialize on certain geographical regions, as is implicated in the differentiation between areas under national jurisdiction (under the CBD), the high seas (under UNCLOS), and Antarctica (under the AT system) in ABS governance (see next section). Interplay management and its effects Institutional complexes are very much shaped by collective ‘interplay management’. Interplay management refers to conscious efforts by any relevant actor or group of actors to address and improve institutional interaction and its effects, usually in pursuit of collective objectives as enshrined in the institutions in question. As regards negotiated institutions, interaction originates from and is shaped by political decisions within these institutions (Gehring and Oberthür 2009). The focus on these decisions as ‘interplay management’ opens up a collective governance perspective on institutional complexes that links structural elements with agency. While interplay management can conceptually occur at different levels, ‘unilateral management’ within each of the elemental institutions involved has so far, in line with the fragmentation of international (environmental) governance, been the most prominent kind of collective governance of interinstitutional relations and institutional complexes. Understanding the relevant decisions within the elemental institutions thus promises to contribute significantly to understanding stability and change of institutional complexes (see also Oberthür and Pożarowska 2013; Stokke and Oberthür 2011: 6–10, including for further references). This stability and change resulting from interplay management materializes in the evolving interinstitutional division of labour. Any fragmented governance architecture will always display some level of a division of labour, that allows

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The impact of the Nagoya Protocol on the evolving institutional complex 181 us to identify the type of differentiation between them (see previous discussion). What can and does vary is the elaboration and clarity of this division of labour, including the level of its contestation. For example, Thomas Gehring has found that a functional differentiation of governance of the trade-environment interface has grown to increasingly clarify that the WTO would be in charge of defining general criteria for trade measures for environmental purposes, while multilateral environmental agreements (MEAs) may actually design and adopt such measures (Gehring 2011). Interinstitutional divisions of labour and fragmentation can thus change and range from interinstitutional conflict, competition, overlap and duplication of functions on one side (‘disorder’) to a more or less complete delimitation of governance tasks, interinstitutional synergy, cooperation and compatibility on the other (‘integration’, ‘order’; similarly, Biermann et al. 2009). How may interplay-management decisions affect the interinstitutional equilibrium within institutional complexes? Since institutional complexes are characterized by the enduring interdependence relationship of their elemental institutions, relevant decisions within the elemental institutions have to affect this interdependence relationship. As a consequence, decisions will usually be relevant if they trigger the causal mechanism of ‘interaction through commitment’ (Gehring and Oberthür 2009) (including associated effects at the outcome/implementation level). Cases of interinstitutional learning (Gehring and Oberthür 2009: ‘cognitive interaction’) usually do not by themselves affect the interinstitutional balance.2 More concretely, two of the three ideal types of interaction through commitment that Gehring and Oberthür (2009) distinguish may be expected to be relevant for the context of global ABS governance. First, a decision taken within one elemental institution of a complex may influence the ‘jurisdictional delimitation’ between the institutions concerned (i.e. their respective fields of authority). The decision may address the regulatory borders directly or affect them indirectly (e.g. by claiming regulatory authority for an area in competition with another institution). Second, the transfer of a particular substantive commitment from one institution to another may activate an additional means of implementation in a lasting, enduring way. For example, transfer of a commitment from a soft-law institution to an international treaty could ‘harden’ it and activate additional support for implementation. The third causal mechanism concerns the transfer of a commitment from a regional to a global institution (‘nested institutions’), which is not relevant for our context because we are essentially looking at institutions with global membership. These potential avenues of influence are useful in assisting us in identifying the relevant elements of the decision investigated and the ways in which these may structurally affect other elemental institutions of a complex.

The institutional complex of ABS governance Leaving aside regional and bilateral arrangements, the institutional complex of ABS governance consists of a dozen international institutions and processes. These have been acknowledged in the negotiations on the 2010 Nagoya Protocol, including through two decisions of the Conference of the Parties (COP) to the

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CBD in 2004 (decision VII/19) and 2008 (decision IX/12). Accordingly, the following regimes and processes form, in addition to the CBD, part of international ABS governance: the FAO and in particular its Commission on Genetic Resources for Food and Agriculture (FAO Commission) and the ITPGR; the WTO, including in particular the Agreement on Trade-related Aspects of Intellectual Property Rights (WTO-TRIPS); WIPO and its conventions and treaties; the International Union for the Protection of New Varieties of Plants (UPOV) administering the UPOV Convention; UNCLOS and related UN processes addressing marine genetic resources (GR); the AT system; the WHO; the International Plant Protection Convention (IPPC), the World Organization for Animal Health (OIE); and a number of human-rights instruments and fora (Figure 10.1; see also Andersen et al. 2010; Nijar 2011). The institutional complex has a particular structure, with the CBD and its Nagoya Protocol at its centre as depicted in Figure 10.1. The CBD regime has remained the only institution that aims at regulating ABS comprehensively, including both aspects of access and benefit sharing. Perhaps more importantly, the CBD ‘interacts’ with all the indicated institutions by affecting them and/or being affected by them as regards ABS. In contrast, the interaction among the other elemental institutions is much more limited. For example, it is difficult to see how a possible ABS regulation under the Antarctic Treaty system would be directly relevant for ABS regulation for plant GR under the ITPGR, human pathogens

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The impact of the Nagoya Protocol on the evolving institutional complex 183 under the WHO or animal pathogens under the OIE (see also following sections). Interaction of the other elemental institutions focuses on their respective subcomplexes. We can distinguish three such sub-complexes that display separate logics of interaction, different types of division of labour and varying dynamics, as explicated in the following. First, the CBD has been involved with the AT system and UN bodies in charge of developing and applying UNCLOS in a geographical division of labour that has remained relatively stable since the emergence of the ABS issue on the international agenda in the 1990s. Article 4 of the CBD explicitly limits the Convention’s application to areas and activities under national jurisdiction so that GR in marine areas beyond national jurisdiction and in Antarctica are generally not covered by the CBD (except where actors in these areas act under national jurisdiction). GR in these areas, including the seabed, ocean floor and water column, are increasingly relevant for ABS because of their potential for biotechnology (Leary et al. 2009; Lohan and Johnston 2005). Comprising the 1959 Antarctic Treaty, the 1972 Convention for the Conservation of Antarctic Seals, the 1980 Convention on the Conservation of Antarctic Marine Living Resources and the 1991 Madrid Protocol on Environmental Protection to the Antarctic Treaty, the AT system forms a joint and all-encompassing governance regime for Antarctica, in principle also including GR. UNCLOS of 1982, as amended by the Implementing Agreement of 1994, establishes a comprehensive governance system for the seas, in principle also covering marine GR in areas beyond national jurisdiction. Further decision making is shared by the Meeting of the State Parties to UNCLOS, convened by the Secretary-General of the UN, and the UN General Assembly (La Fayette 2009; UNU-IAS 2005). Both the AT system and UNCLOS–related processes have claimed jurisdictional competence over GR in line with their general authority over their respective areas, even though none of them has so far adopted relevant arrangements (La Fayette 2009). A second sub-complex within the evolving global governance architecture on ABS concerns the general approach to and norm of the appropriation of the benefits arising from the use of GR and/or traditional knowledge. To be sure, the other sub-complexes also concern the distributional core of ABS governance but do not address the general approach towards the appropriation of benefits as do the institutions of this sub-complex. At the latter’s core, the relationship between WTO-TRIPS and the CBD—that were negotiated in parallel in the late 1980s and the early 1990s—has been described as an ‘arms race’ (Rosendal 2006). Whereas the CBD promotes fair and equitable benefit sharing between providers and users of GR as requested by developing countries, WTO-TRIPS favours benefit appropriation by the users of GR by ensuring intellectual property rights (IPRs) for inventions based on GR or traditional knowledge (patent protection for 20 years) as supported by developed countries. In this conflict, WIPO, based on its objective ‘to promote the protection of intellectual property throughout the world’ (WIPO Convention, Art. 3), tends to support effective IPR protection (Rosendal 2006). Relevant discussions under the CBD, the WTO and WIPO have focused on the request of developing countries to require a disclosure of

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origin of genetic material and related traditional knowledge (and some further accompanying information) as a prerequisite of granting patent protection. Such a requirement could substantially strengthen implementation of requirements for fair and equitable benefit sharing (that otherwise lack teeth), while it may constitute a burden for IPR protection (Ho and Vickrey 2003; WIPO 2006). Overall, this sub-complex is thus characterized by conflict between competing objectives supported by different stakeholders. Human rights instruments intervene in this conflict by, on the one side, supporting the protection of IPRs and, on the other side, increasingly recognising the rights of indigenous and local communities, in particular related to their traditional knowledge. Thus implicitly requiring a balancing of different rights, recent developments have tended to strengthen support for fair and equitable benefit sharing (Francioni 2006; Louka 2002). As human rights instruments are more of an intervening factor in this sub-complex (mediating between the main elemental institutions), they are not implicated in the Nagoya Protocol itself and thus not considered further in the analysis in this chapter. The third sub-complex involves a sectoral differentiation. Whereas the CBD covers GR as a whole, several other international institutions are at various stages of developing specialized ABS systems for specific sub-sectors. At the most advanced stage, the ITPGR developed under the FAO—also in response to the CBD itself and in relation to the UPOV Convention covering particular IPR protection for new plant varieties—has established a recognized special ABS system for plant GR for food and agriculture (Jungcurt 2008). The FAO Commission has furthermore discussed the scope for specific regulation of ABS regarding other GR for food and agriculture (animals, forestry, microorganisms etc.). A further broad area of sectoral specialization concerns pathogens. The WHO has operated a system for sharing viruses and other pathogens (especially for pharmaceutical research). The IPPC and OIE were identified in the negotiations as possessing the competence to elaborate specialized systems for plant and animal pathogens, respectively, but have not yet done so (Andersen et al. 2010; Bulmer 2009; Laird and Wynberg 2008). These three sub-complexes display clearly separate logics of interaction and division of labour and are characterized by varying dynamics and underlying political issues. We should thus distinguish among them when analysing the impact of the Nagoya Protocol.

The impact of the Nagoya Protocol on the institutional complex As mentioned before, the relationship between the newly emerging Protocol and other international institutions formed a key part of the negotiations. The resulting provisions of the Nagoya Protocol shaping its relationship with other international institutions reflect more the positions of the EU and other developed countries than those of the developing countries (see Wallbott et al., this volume). In the following, we first provide an overview of these provisions of the Protocol.

The impact of the Nagoya Protocol on the evolving institutional complex 185 Subsequently, we explore the meaning and impact of these provisions on the institutional complex with reference to the sub-complexes of ABS governance identified previously, including relevant post–Nagoya developments.

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The relevant rules of the Nagoya Protocol The Nagoya Protocol and the decision adopting it address the relationship with other international institutions prominently (even though many concrete textual proposals did not survive the negotiation process). Four articles of the Protocol are particularly relevant in this respect: Article 3 on the scope of the Protocol, Article 4 on the ‘relationship with international agreements and instruments’, Article 8 on ‘special considerations’, and Article 10 on a ‘global multilateral benefit-sharing mechanism’. In addition, the Protocol establishes a system designed to enhance implementation and compliance, which touches upon the relationship with the WTO and WIPO. Finally, the Protocol’s preamble and COP decision X/1 adopting the Protocol contain relevant provisions that help in the interpretation of the aforementioned articles. First of all, Article 3 of the Nagoya Protocol limits the scope of the Protocol’s application to ‘genetic resources within the scope of Article 15 of the Convention’. Article 15 of the CBD, in turn, recognizes ‘the sovereign rights of States over their natural resources’ (para. 1) and, on this basis, regulates access to GR under national jurisdiction. Article 3 would thus seem to suggest that the Nagoya Protocol does not apply to GR outside national jurisdiction (see following section). Article 4 explicitly addresses the relationship with international agreements and instruments. Its paragraph 1 reaffirms Article 22.1 of the CBD so that the Protocol does not affect the rights and obligations of any Party under other existing international agreements, ‘except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity’. The added second sentence that ‘[t]his paragraph is not intended to create a hierarchy between this Protocol and other international instruments’ seems to have a largely declaratory character (see also Buck and Hamilton 2011). Paragraph 2 explicitly allows parties to develop and implement other relevant international agreements, including other specialized ABS agreements, ‘provided that they are supportive of and do not run counter to the objectives of the Convention and this Protocol’. According to paragraph 3, the Protocol should be implemented in a mutually supportive manner with other relevant instruments, and due regard should be paid to ‘useful and relevant ongoing work or practices under such international instruments and relevant international organizations’, again with the proviso that they should be supportive of and not run counter to the objectives of the CBD and the Protocol. Paragraph 4, finally, even determines that specialized ABS instruments that are consistent with and do not run counter to the objectives of the CBD and the Protocol overrule the Nagoya Protocol for their membership and for their specific purpose. Article 8.b—even though framed in nonmandatory, hortatory language— specifically acknowledges a possible need for and justification of special

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arrangements for human, animal and plant health, especially as regards emergency situations. In this respect, it highlights the need for expeditious access and expeditious benefit sharing, including access to affordable treatments for those in need, especially in developing countries. Article 8.c furthermore stresses the importance of GR for food and agriculture in the context of food security. Article 10 of the Protocol envisages consideration of a global multilateral benefit-sharing mechanism (‘Global Mechanism’) with respect to GR and traditional knowledge ‘that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent’. It furthermore determines that the benefits (from such GR) shared through the Global Mechanism ‘shall be used to support the conservation of biological diversity and the sustainable use of its components globally’. As regards user-country measures, Article 17 on checkpoints and the creation of a nonmandatory ‘international certificate of compliance’ are particularly noteworthy. Checkpoints designated by parties are to collect and receive information on the origin of GR, prior informed consent, the establishment of mutually agreed terms and/or the utilization of GR. The international certificate of compliance is to provide proof of compliance with relevant ABS requirements and thus to enhance transparency in order to facilitate international GR transactions (Buck and Hamilton 2011: 53–54). The Protocol’s preamble and Decision X/1 contain various other relevant references. Thus, ongoing work of other international forums is recognized in the preamble of the Protocol and in paragraph 6 of the decision adopting the Protocol, which specifically mentions WIPO in this respect. Complementing Article 10 (see previous discussion), the Protocol’s preambular paragraph 13 furthermore recognizes that ‘an innovative solution is required’ for GR ‘that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent’. The Protocol’s preamble furthermore acknowledges relevant ongoing work in other international fora (para. 18) and recognizes that international ABS instruments should be ‘mutually supportive with a view to achieving the objectives of the Convention’ (para. 20). In the preamble, the ITPGR receives particular recognition as being in harmony with the CBD and as playing a ‘fundamental role’ together with the FAO Commission; the broader agricultural sector is recognized as particularly important and requiring distinct solutions. Furthermore, the health sector is specifically addressed and recognized in the preamble. Geographical sub-complex The Nagoya Protocol essentially confirmed the existing geographical division of labour between the CBD, UNCLOS (areas beyond national jurisdiction/marine GR) and the AT system (Antarctic Treaty Area), although it kept a possible opening for addressing the issue under the Protocol. As mentioned previously, Article 3 of the Protocol on its scope appears to reinforce the existing geographic delimitation (see also Buck and Hamilton 2011). At the same time, those advocating that the Protocol should also address marine/Antarctic GR, most notably the African

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The impact of the Nagoya Protocol on the evolving institutional complex 187 countries, consider Article 10 as keeping the issue on the agenda since ‘prior informed consent’ does not work for access to these GR that are outside national jurisdiction. In contrast, developed countries argue that the Global Mechanism is subject to Article 3 so that it, if needed at all, could not apply to GR beyond national jurisdiction (ENB 2012a; Tvedt 2011). After Nagoya, some progress has been made on ABS under UNCLOS. Less than a year after the Nagoya conference, the relevant Ad Hoc Open-Ended Working Group under the UN General Assembly agreed in June 2011 on launching a process on marine biodiversity beyond national jurisdiction that would also consider ABS regarding marine GR and might possibly develop an implementing agreement to UNCLOS covering marine GR (including benefit sharing), marine protected areas, environmental impact assessments, capacity building and transfer of marine technology (ENB 2011a). After the UN General Assembly had given its blessing to these plans in 2011 (Resolution 66/231), progress has been slow, with the major issue of contention being whether the process should result in an UNCLOS implementing agreement (the EU, developing countries) or not (Canada, Japan, Russia, the US). The Rio+20 UN Conference on Sustainable Development in June 2012 in this respect agreed on ‘taking a decision on the development of an international instrument under UNCLOS’ before the end of 2014 (UN General Assembly 2012: Annex, para. 162). There are good reasons to believe that the Nagoya Protocol has facilitated these post–Nagoya developments. First of all, pressure to address the issue somehow was mounting with ABS regulation moving forward under the CBD. More specifically, the outcome of Nagoya weakened the prospect of achieving regulation of marine GR under the CBD and one important reason for blocking progress under UNCLOS, namely the claim to regulate marine GR in the Nagoya Protocol. Interested developing countries had an increasing incentive to move forward under UNCLOS so as not to lose discussions on marine GR completely and could (and did) now use the Nagoya Protocol, more specifically the Global Mechanism under Article 10, to press for progress under UNCLOS. Thus, South Africa stressed in the post–Nagoya discussions under UNCLOS that if no progress could be made in this context, relevant efforts could be channelled to the CBD/Nagoya Protocol, especially the Global Mechanism (ENB 2011a; 2012b). Several developed countries prepared to consider such a deal could, in turn, see the advantage of thereby keeping the discussions out of the framework of the CBD. They also had more room for manoeuvre to move forward on ABS regarding marine GR under UNCLOS in exchange for advancing on other parts of the package attractive for them (marine protected areas, environmental impact assessments). Similar pressures exist as regards the AT system, although no progress on ABS was made at the 2011 and 2012 meetings. Again, agreement on the Nagoya Protocol removed a major political obstacle to discussing ABS under the AT. The start of negotiations under UNCLOS further increased pressure on the AT to take up the issue, because there is a potential overlap between the UNCLOS areas beyond national jurisdiction and the AT area. As a result, if agreement under UNCLOS was reached, the jurisdictional authority of the AT might be in danger. Accordingly,

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several countries pushed to move forward on ABS arrangements under the AT at the 2011 meeting in the light of the Nagoya Protocol—which was, however, insufficient to overcome opposition by others, in particular the US (ATCM 2011: 82–83). In the negotiations on ABS rules under UNCLOS and, possibly, the AT system, the Nagoya Protocol should strengthen those in favour of strong benefit-sharing provisions. First of all, the general provisions of Article 4 of the Protocol regarding other international agreements and instruments (see above) would seem to suggest that any arrangements under UNCLOS and the AT system should synergize with the CBD and the Nagoya Protocol and thus aim for appropriate benefit sharing. While it may be argued that the Protocol as a whole, including its Article 4, does not apply to the geographic areas regulated under UNCLOS and the AT by virtue of Article 3, the situation remains ambiguous and it should in any event be difficult to oppose the notion of mutual supportiveness as also contained in the Protocol’s preamble (paras. 18 and 20; see above). Benefit-appropriation sub-complex As regards the WTO and WIPO, the Protocol does not create any inconsistencies, but its Article 4 provides broad guidance for possible future developments. While not requesting any particular modifications, these provisions do provide support to those pursuing adaptations of the WTO and WIPO regimes (i.e. developing countries) to reflect, acknowledge and help enforce fair and equitable benefit sharing. In addition, the introduction of an international certificate of compliance on the one side consciously avoided direct interference with patent requirements under WTO-TRIPS and WIPO. On the other side, however, the certificate provides an opening for developing countries in that it, even though remaining nonmandatory, formally recognizes under international law the usefulness of having information on the origin of GR and further relevant information available and commits parties to the Protocol to related action. Developing countries have embraced these openings in both the WTO and WIPO. In the WTO, a number of developing countries submitted a new proposal in 2011 to ‘enhance mutual supportiveness between the TRIPS Agreement and the CBD’ (WTO 2011). In addition to suggesting the introduction of a disclosureof-origin requirement into the TRIPS Agreement, these countries also suggested that a copy of an internationally recognized certificate of compliance become a mandatory requirement for patent applications (ibid.). Whereas it is difficult for Nagoya signatories to argue against such a provision, because they appear to have accepted the usefulness of such international certificates, the inclusion of such a requirement in the TRIPS Agreement would substantially harden it and support its effective implementation (see also Pavoni 2013). In WIPO, proposals for how to strengthen synergy between the Nagoya Protocol and WIPO have also been presented by developing countries after Nagoya and have found their way into draft negotiating text. Negotiations on GR have been ongoing within WIPO’s Intergovernmental Committee on

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The impact of the Nagoya Protocol on the evolving institutional complex 189 Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore since 2001. Similar to the discussions under the WTO, developing countries in 2011 introduced in the Committee a new request for a disclosureof-origin requirement that is framed in the context of the Nagoya Protocol with references to checkpoints and the international certificate of compliance. These proposals have been reflected in the negotiating text that developing countries wish to see adopted as an international treaty. As such, the Nagoya Protocol can be said to have brought ‘new impetus’ to the WIPO discussions with developing countries stressing that any outcome ‘be CBD and Nagoya compatible’ (VivasEugui 2012: 26). Overall, the Nagoya Protocol can thus be said to have strengthened the proponents of a disclosure requirement within both the WTO and WIPO. Based on the Protocol’s emphasis on mutual supportiveness, they have been able to build an increasingly consistent case for their cause, drawing in the core elements of the user-country measures agreed in Nagoya, especially regarding the international certificate of compliance. However, Nagoya has not (yet) led to any changes of WTO or WIPO rules, not least since it has not weakened the US–led opposition against the disclosure requirement (with the general stalemate within the WTO further impeding an outcome of these debates). Sectoral specialization sub-complex The Nagoya Protocol clarifies and consolidates the relationship between the central CBD regime and specialized ABS regimes (see also Buck and Hamilton 2011). Overall, the Protocol assumes a guiding function in defining the general objectives while allowing other, sectoral institutions to develop any complementary specialized rules. The Protocol thus further clarifies the relationship between the CBD regime and specialized regulatory systems much in line with developed countries’ preferences: The Protocol paves the way for potential further sectoral specialization provided that it is in line with the general guidance of the central regime towards fair benefit sharing. Those interested in giving the CBD a more central role in regulating ABS in sectors covered by specialized institutions will find it more difficult to maintain their position on this basis. In return, provider countries receive clear support in their pursuit of fair and equitable benefit sharing under those specialized arrangements. The struggle over possible sectoral arrangements and what would be in line with the CBD regime will first of all have to take place in these sectoral contexts that may possess weaker prospects for benefit-sharing interests. At the same time, these interests hold a strong position because advocates of new sectoral agreements will have to convince them that such sectoral agreements would be beneficial as compared with the Protocol (which otherwise applies by default). This clarification and consolidation has led to significant developments in both the WHO and the FAO. The World Health Assembly of the WHO—after several years of negotiation—finally adopted a Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits in May 2011. The formally nonbinding Framework

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determines benefit-sharing arrangements specific to the sector based on two types of standard material transfer agreements. The first one covers virus sharing within the WHO’s influenza surveillance network and establishes that the provider and recipient of samples should not apply for intellectual property rights over the material received from the network. The second addresses virus sharing outside the WHO network that is to result in benefit sharing in the form of making available or providing affordable access to vaccines (at least 10 per cent), antiviral medicines and/or production licenses. It was also agreed that the pharmaceutical industry would, starting from 2012, cover half of the running costs of the Global Influenza Surveillance Network (which amounted to about US$56.5 million in 2010). While a number of developing and developed countries successfully requested the deletion of a reference to the Nagoya Protocol, there can be little doubt that the Protocol helped bring about the WHO agreement. It removed one of the reasons for developing countries to hold out in the WHO in the hope for a more favourable agreement under the CBD. And it significantly enhanced the willingness of industry to settle for an agreement under the WHO in order to prevent the implicated pathogens from falling under the Nagoya Protocol (Wilke 2013). The FAO Commission, in July 2011, established an Ad Hoc Technical Working Group on Access and Benefit Sharing in order to explore which sectors related to food and agriculture may require the elaboration of distinctive solutions, possibly including legal instruments, in line with and implementing the Nagoya Protocol (Chiarolla et al. 2013; ENB 2011b). While the Nagoya Protocol also in this respect settled the question of regulatory authority of the FAO, the enhanced activities under the FAO Commission ensued from a focused discussion on the implications of the Nagoya Protocol and can thus be understood as a direct response to the Protocol. To what extent they will lead to tangible ABS regulation of additional sectors of GR for food and agriculture (beyond the ITPGR) will depend on the ongoing assessment of the need for and usefulness of such specialized arrangements, including as regards their distributional consequences as compared to the default of the Nagoya Protocol (Chiarolla et al. 2013; see also Rosendal et al., this volume). Overall, the Nagoya Protocol has made the way free for any future specialized ABS arrangements that countries consider beneficial. By explicitly and specifically confirming the general lex specialis rule, the Nagoya Protocol has especially helped remove political impediments to sectoral specialization in ABS governance that have already led to relevant developments in the WHO and the FAO. Related initiatives may in the future also be taken in the other elemental institutions of this sub-complex. For example, following the adoption of the Nagoya Protocol, the IPPC has begun to assess the implications for its operation, noting possible impacts of the Protocol ‘on the feasibility to develop and commercialize biological control agents’ (FAO 2012: para. 7).

Conclusion The Nagoya Protocol is a prime example of international governance of and under conditions of institutional complexity. Together with the CBD as its mother

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The impact of the Nagoya Protocol on the evolving institutional complex 191 treaty, the Protocol forms the core of the multi-institutional architecture of global ABS governance that contains roughly a dozen multilateral institutions (see Figure 10.1). The complex itself even displays a substructure: Its elemental institutions relate in different ways to the CBD regime and are involved in different kinds of division of labour: a geographical specialization (AT system, UNCLOS), concerning the appropriation of benefits (WTO-TRIPS, WIPO, human rights) and a sectoral specialization (UPOV, ITPGR, FAO, WHO, IPPC, OIE). The relationship between the evolving ABS regime of the CBD and these international institutions and how to shape and develop this relationship was a major subject in the negotiations on the Nagoya Protocol. There has hardly been any other MEA in which issues of institutional complexity have figured more prominently and in more varied ways going beyond the ‘traditional’ conflict between MEAs and the WTO. The Nagoya Protocol clarifies and consolidates rather than changes the existing interinstitutional equilibrium within the complex through three main elements. First, the relevant provisions do not appear to create any obvious inconsistencies with other elemental regimes of the complex that would enhance the pressure within those regimes to adapt. Second, the Protocol reinforces the CBD regime’s claim to form the centre of the governance architecture by giving general guidance to the future development (and interpretation) of the other elemental institutions: In developing their own systems, other elemental regimes should be supportive of and not run counter to the CBD regime in order to synergize the complex. Third, the Protocol clarifies and consolidates the relationship with other elemental regimes. Accordingly, complementary specialized regimes cannot only be maintained but may also be newly created and further developed and ABS in areas beyond national jurisdiction and Antarctica may (best) be addressed under UNCLOS and the AT system, respectively. In addition, the substantive provisions on user-measures/compliance and implementation, especially the introduction of a nonmandatory ‘international certificate of compliance’, open up possibilities for strengthening this element by linking it to patent regulation under the WTO and WIPO. Through this clarification and consolidation, the Nagoya Protocol has spurred significant developments within other elemental institutions of the complex. The WHO has passed a specialized ABS agreement regarding virus pathogens, and the FAO and UNCLOS have initiated processes that consider the conclusion of agreements in the future. In other elemental institutions, the internal balance has been affected with possible effect on future outcomes. Also, the opportunity to strengthen the Protocol’s compliance and implementation provisions through the WTO and WIPO has since been pursued by developing countries. A major part of these dynamics within the complex prompted by the Protocol can be traced back to the clarification and confirmation of the existing division of labour between the elemental institutions, which has framed or limited future forum-shopping and regime-shifting options of actors. As pointed out by Tvedt (this volume), a possible proliferation of sectoral approaches could be seen as hollowing the Nagoya Protocol and may not necessarily be to the advantage of developing provider countries. However, the exact effects of such a specialization remain to be analysed further.

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The governance effect of the Nagoya Protocol on the institutional complex can be traced through the causal mechanism of ‘interaction through commitment’ and more specifically the ideal types of ‘jurisdictional delimitation’ and ‘additional means’. It is costly for states that agreed to the Protocol to disregard its provisions. As a result, the commitment implied makes it difficult for them to argue against the authority of other elemental institutions to pass specific ABS regulation or against following the Protocol’s general guidance in other relevant institutions. Most of the provisions on the relationship with other institutions address (and clarify) the delimitation of regulatory authority ( jurisdictional delimitation). Furthermore, the assistance that the WTO and WIPO could provide for the effective implementation of the ABS regime drives the effect on these institutions (additional means). These two types of ‘interaction through commitment’ seem to capture the primary governance impact of the Nagoya Protocol on the broader institutional complex. They may provide logical starting points for assessing the potential (ex ante) and actual (ex post) effects of interplay management efforts also in other cases. The Nagoya Protocol thus constitutes a significant further step towards a clear division of labour and an interinstitutional order in the architecture of global ABS governance. It reinforces the CBD regime’s claim to form the centre of the governance architecture by defining the general objectives to be pursued and streamlined into all other elemental institutions. At the same time, it grants other institutions the possibility to develop specialized arrangements and thus further deepens and develops the division of labour in the geographical and sectoral sub-complexes. The governance impulse of the Protocol was perhaps weakest as regards the division of labour with the WTO and WIPO (benefit-appropriation sub-complex), but keeping the status quo may in fact further engrain it. Overall, the further development of the governance architecture will not least depend on future decisions taken within the other elemental institutions as well as under the Protocol (e.g. regarding the multilateral benefit-sharing mechanism). We hope that we have demonstrated that the Protocol has further framed and shaped the related ongoing and future political struggles in the elemental institutions of the complex.

Notes 1 These first two steps partially draw on Oberthür and Pożarowska (2013). 2 Stokke (2001) refers to these two causal mechanisms as ‘normative’ and ‘ideational interplay’, respectively.

Bibliography Andersen, R., Tvedt, M.W., Fauchald, O.K, Winge, T., Rosendal, K. and Schei, P.J. (2010) International Agreements and Processes Affecting an International Regime on Access and Benefit Sharing under the Convention on Biological Diversity. Implications for Its Scope and Possibilities of a Sectoral Approach. Lysaker, Norway: Fridtjof Nansen Institute. ATCM (2011) Final Report of the Thirty-fourth Antarctic Treaty Consultative Meeting, 20 June 2011–1 July 2011, Buenos Aires: Secretariat of the Antarctic Treaty.

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The impact of the Nagoya Protocol on the evolving institutional complex 193 Biermann, F., Pattberg, P., van Asselt, H. and Zelli, F. (2009) ‘The Fragmentation of Global Governance Architectures: A Framework for Analysis’, Global Environmental Politics 9(4): 14–40. Buck, M. and Hamilton, C. (2011) ‘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’, Review of European Community & International Environmental Law 20(1): 47–61. Bulmer, J. (2009) Study on the Relationship Between an International Regime on Access and Benefit-Sharing and Other International Instruments and Forums that Govern the Use of Genetic Resources. The International Treaty on Plant Genetic Resources for Food and Agriculture and the Commission on Genetic Resources for Food and Agriculture of the Food and Agriculture Organization of the United Nations, UN Doc. UNEP/ CBD/WG-ABS/7/INF/3/Part.1, 3 March 2009. Chiarolla, C., Louafi, S. and Schloen, M. (2013) ‘An Analysis of the Relationship between the Nagoya Protocol and Instruments Related to Genetic Resources for Food and Agriculture and Farmers’ Rights’, in Morgera, E., Buck, M., Tsioumani, E. (eds.), The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications for International Law and Implementation Challenges, Leiden/Boston: Martinus Nijhoff, 83–122. ENB (2011a) ‘Summary of the Fourth Meeting of the Working Group on Marine Biodiversity Beyond Areas of National Jurisdiction: 31 May–3 June 2011’, Earth Negotiations Bulletin 25(70). ENB (2011b) ‘Summary of the Thirteenth Regular Session of the Commission on Genetic Resources for Food and Agriculture: 18–22 July 2011’, Earth Negotiations Bulletin 9(556). ENB (2012a) ‘Summary of the Second Meeting of the Intergovernmental Committee for the Nagoya Protocol on Access and Benefit Sharing to the Convention on Biological Diversity: 2–6 July 2012’, Earth Negotiations Bulletin 9(579). ENB (2012b) ‘Summary of the Fifth Meeting of the Working Group on Marine Biodiversity Beyond Areas of National Jurisdiction: 7–11 May 2012’, Earth Negotiations Bulletin 25(83). FAO (2012) Report on the Promotion of the IPPC and Cooperation with Relevant Regional and International Organizations, FAO Doc. CPM 2012/25, March 2012, Food and Agriculture Organization of the United Nations, Commission on Phytosanitary Measures. Francioni, F. (2006) ‘Genetic Resources, Biotechnology and Human Rights: The International Legal Framework’, EUI Working Papers, Law No. 2006/17, San Domenico di Fiesole: European University Institute, Department of Law. Gehring, T. (2011) ‘The Institutional Complex of Trade and Environment: Toward an Interlocking Governance Structure and a Division of Labor’, in Oberthür, S. and Stokke, O.S. (eds.) Managing Institutional Complexity. Regime Interplay and Global Environmental Change, Cambridge, MA/London: MIT Press, 227–254. Gehring, T. and Oberthür, S. (2009) ‘The Causal Mechanisms of Interaction between International Institutions’, European Journal of International Relations 15(1): 125–156. Ho, C.M. and Vickrey, C.E. (2003) Disclosure of Origin and Prior Informed Consent for Applications of Intellectual Property Rights Based on Genetic Resources—A Technical Study of Implementation Issues—Final Report, UN Doc. UNEP/CBD/WG-ABS/2/ INF/2, 29 September 2003. Jungcurt, S. (2008) Institutional Interplay in International Environmental Governance: Policy Interdependence and Strategic Interaction in the Regime Complex on Plant Genetic Resources for Food and Agriculture, Aachen, Germany: Shaker.

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Keohane, R.O. and Victor, D.G. (2011) ‘The Regime Complex for Climate Change’, Perspectives on Politics 9(1): 7–23. La Fayette, L.A.D. (2009) ‘A New Regime for the Conservation and Sustainable Use of Marine Biodiversity and Genetic Resources Beyond the Limits of National Jurisdiction’, International Journal of Marine and Coastal Law 24: 221–280. Laird, S. and Wynberg, R. (2008) ‘Access and Benefit-Sharing in Practice: Trends in Partnerships across Sectors’, CBD Technical Series No. 38, Montreal: Secretariat of the Convention on Biological Diversity. Leary, D., Vierros, M., Hamon, G., Arico, S. and Monagle, C. (2009) ‘Marine Genetic Resources: A Review of Scientific and Commercial Interest’, Marine Policy 33(2): 183–194. Liu, J. (2011) ‘The Role of ICAO in Regulating the Greenhouse Gas Emissions of Aircraft’, Carbon and Climate Law Review 4/2011: 417–431. Lohan, D. and Johnston, S. (2005) Bioprospecting in Antarctica, Yokohama, Japan: United Nations University-Institute of Advanced Studies (UNU-IAS). Louka, E. (2002) Biodiversity and Human Rights: The International Rules for the Protection of Biodiversity, Ardsley, NY: Transnational Publishers. Nijar, G. S. (2011) The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: An Analysis, CEBLAW Brief, Kuala Lumpur, Malaysia: Centre of Excellence for Biodiversity Law (CEBLAW). Oberthür, S. and Pożarowska, J. (2013) ‘Managing Institutional Complexity and Fragmentation: The Nagoya Protocol and the Global Governance of Genetic Resources’, Global Environmental Politics 13(3), forthcoming. Oberthür, S. and Stokke, O.S. (eds.) (2011) Managing Institutional Complexity. Regime Interplay and Global Environmental Change, Cambridge, MA/London, England: MIT Press. Orsini, A., Morin, J.F. and Young, O.R. (2013) ‘Regime Complexes: A Buzz, A Boom or a Boost for Global Governance?’, Global Governance 19(1): 27–39. Pavoni, R. (2013) ‘The Nagoya Protocol and WTO Law’, in Morgera, E., Buck, M. and Tsioumani, E. (eds.) The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications for International Law and Implementation Challenges, Leiden/ Boston: Martinus Nijhoff, 185–213. Raustiala, K. and Victor, D.G. (2004) ‘The Regime Complex for Plant Genetic Resources’, International Organization 58(2): 277–309. Rosendal, G.K. (2006) ‘The Convention on Biological Diversity: Tensions with the WTO TRIPS Agreement over Access to Genetic Resources and the Sharing of Benefits’, in Oberthür, S. and Gehring, T. (eds.) Institutional Interaction in Global Environmental Governance. Synergy and Conflict Among International and EU Policies, Cambridge, MA/London: MIT Press, 79–102. Stokke, O.S. (2001) The Interplay of International Regimes: Putting Effectiveness Theory to Work, FNI Report 14/2001. Lysaker, Norway: The Fridtjof Nansen Institute. Stokke, O.S. (2011) ‘Interplay Management, Niche Selection, and Arctic Environmental Governance’, in Oberthür, S. and Stokke, O.S. (eds.) Managing Institutional Complexity. Regime Interplay and Global Environmental Change, Cambridge, MA/London, England: MIT Press, 143–170. Stokke, O.S. and Oberthür, S. (2011) ‘Introduction: Institutional Interaction in Global Environmental Change’, in Oberthür, S. and Stokke, O.S. (eds.) Managing Institutional Complexity. Regime Interplay and Global Environmental Change, Cambridge, MA/ London: MIT Press, 1–23.

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The impact of the Nagoya Protocol on the evolving institutional complex 195 Tvedt, M.W. (2011) A Report from the First Reflection Meeting on the Global Multilateral Benefit-Sharing Mechanism (FNI Report 10/2011), Lysaker, Norway: Fridtjof Nansen Institute. UN General Assembly (2012) Resolution 66/288: The Future We Want, UN Doc. A/RES/ 66/288, 11 September 2012. UNU-IAS (2005) Bioprospecting of Genetic Resources in the Deep Sea Bed: Scientific, Legal, and Policy Aspects, Yokohama, Japan: United Nations University—Institute of Advanced Studies. Vivas-Eugui, D. (2012) Bridging the Gap on Intellectual Property and Genetic Resources in WIPO’s Intergovernmental Committee (IGC), Issue Paper No. 34, Geneva: International Centre for Trade and Sustainable Development. Wilke, M. (2013) ‘A Healthy Look at the Nagoya Protocol: Implications for Global Health Governance’, in Morgera, E., Buck, M. and Tsioumani, E. (eds.) The 2010 Nagoya Protocol on Access and Benefit-sharing in Perspective: Implications for International Law and Implementation Challenges, Leiden/Boston: Martinus Nijhoff, 123–148. WIPO (2006) Interrelation of Access to Genetic Resources and Disclosure Requirements in Applications for Intellectual Property Rights: Report of the World Intellectual Property Organization (WIPO), UN Doc. UNEP/CBD/COP/8/INF/7, 16 January 2006. WTO (2011) Draft Decision to Enhance Mutual Supportiveness Between the TRIPS Agreement and the Convention on Biological Diversity, Communication from Brazil, China, Colombia, Ecuador, India, Indonesia, Peru, Thailand, the ACP Group, and the African Group, WTO Doc. TN/C/W/59, 19 April 2011.

11 Balancing ABS and IPR governance in the aquaculture sector

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G. Kristin Rosendal, Ingrid Olesen and Morten Walløe Tvedt Introduction International governance of access and benefit sharing (ABS) based on utilization of genetic resources (GR) under the Nagoya Protocol (NP) and the Convention on Biological Diversity (CBD) enters a densely populated institutional environment. This relates to one of the core conflicts of the negotiations: whether and how to negotiate alternative ABS regimes for specific sectors and GR types. Article 4 of the Nagoya Protocol opens opportunities for other international organizations than the CBD to negotiate new specialized agreements regulating ABS. This issue remains a source of conflict among the parties (see Tvedt; Oberthür and Pożarowska; Biber-Klemm et al., all this volume). This chapter examines international legal frameworks for governance of aquatic GR and discusses the interests in and needs for a sector-based approach to international GR transactions in aquaculture. Aquaculture—the breeding and farming of aquatic species of animals—is currently the world’s fastest-growing food industry, and its role in response to the global food crisis is evident (FAO 2010). All breeding depends on a steady input of fresh genetic material in order to avoid inbreeding and to secure breeding goals. Without input of new genetic material, organisms are unable to evolve and adapt to changing environments, climates, new pests and diseases. Access to new and improved genetic material is hence an important component for breeders to continue innovation and upgrading. Fish farmers, too, need affordable access in order to produce food for an increasing world population (Olesen et al. 2007; Rosendal et al. 2006). At the same time, developing and maintaining breeding programmes is very costly, while the results are cheap to copy (Rye 2012). Hence, breeders need to control and secure revenues from their investments. This can be achieved through patents or other intellectual property rights (IPRs) and biological protection. This raises questions of access to and control over GR. GR governance faces the challenge of balancing several objectives, including access to resources for innovation, some type of protection to secure revenues and to stimulate innovation and conservation of biological diversity, all important for food security. There is hence a need to balance legal protection and affordable access in order to encourage aquatic food production and further breeding and innovation. A core challenge is to grant protection specifically to innovation and formulate the scope

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Balancing ABS and IPR governance in the aquaculture sector 197 of IPRs in a way that does not stifle innovation. In the agricultural sector, the establishment of exclusive rights through patents and plant breeders’ rights has been met with various types of access regulation regarding breeding material, both of which may arguably hamper access (Esquinas-Alcazar 2005). The CBD/NP represents one way of balancing these objectives. This chapter examines structural and technological developments as well as legal options and discusses the interests in and need for an alternative approach to aquatic GR. A major challenge to the implementation of the Nagoya Protocol is its relationship to emerging frameworks for governing GR within the variety of sectors in which these resources are in use. The notion that interacting international institutions may reciprocally affect each other has been widely acknowledged and explored (Oberthür and Gehring 2006; Rosendal 2001; Young 1996). The relationship between the CBD/ABS and IPR regimes, notably the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement under the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) has been subject to a number of studies (Posey and Dutfield 1996; Rosendal 2000, 2006; Tvedt 2005, 2006). The relationship between the CBD’s ABS and the FAO International Treaty for Plant Genetic Resources for Food and Agriculture (ITPGR) has also been duly explored (Andersen 2008; Jungcurt 2008; Raustiala and Victor 2004). Currently, the FAO Commission on Genetic Resources for Food and Agriculture (FAO Commission) is discussing whether to establish sector-specific rules also for aquatic GR and microorganisms, including nonhuman pathogens that plague food production (see also Oberthür and Pożarowska, this volume). This sectoral approach is based on the argument that these sectors have different needs for accessing and controlling GR compared to those covered by the Nagoya Protocol. These processes are in their early stages and have not been subject to much analysis. While the FAO and the CBD/NP may complement each other, they might also be vying for regulatory leadership on governing pathogens and breeding material. As Hasenclever and colleagues remind us (1996: 191), delineating an issue area is itself a highly political process. As shown by Tvedt (this volume), ABS constitutes a mechanism to balance private exclusive rights to innovation and discovery based on genetic material. Removing particular uses or resources from the ABS regime of the CBD/NP may shift the balance between providers and users achieved under the CBD. In other forums, interest constellations and negotiating power are likely to differ from that in the CBD.

Approach and methodology The chapter starts by describing the legal options for ABS and IPRs as mentioned above. The balance between ABS and IPRs has long been discussed in the agriculture sector, but the exchange of aquatic GR has only recently received attention (Bartley et al. 2009; Greer and Harvey 2004: 5; Olesen et al. 2007; Rosendal et al. 2006). The CBD/NP, the FAO Commission and IPR regimes represent legal options for access to and protection of GR, options that users and providers might

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strategically choose or mix. Then we examine biological, technological and structural traits, which might also affect choices. Biological and technological traits of aquaculture could substantiate a need for a differentiated sector approach to ABS (Bartley et al. 2009). Aquaculture has until recently been less characterized by ABS-IPR conflicts compared to the plant breeding sector. Also, biological differences make it more difficult to legally protect populations of fish compared to plant varieties. The presentation of structural factors highlights trends in ownership to aquatic GR, with a focus on breeding programmes. From the agricultural sector, it is well known that users (in particular multinational corporations—MNCs) have a greater interest in securing IPRs, while providers generally opt for strong ABS regulations. These diverging interests are based on differences in technological and economic capacity to acquire IPRs and utilize GR and on differences in harbouring biological diversity (Raustiala and Victor 2004; Rosendal 2000, 2006). Increased pressure for commercialization leads to market concentration and increased interest in IPRs. These trends have caused pressure to harmonize and strengthen IPR legislation through international forums and a corresponding response in terms of ABS legislation (Esquinas-Alcazar 2005; Rosendal 2006). The empirical evidence is drawn from case studies of cod and salmon aquaculture in Norway and Chile, carp and shrimp in India and the cases of Genetic Improvement of Farmed Tilapia (GIFT) in South East Asia and Ghana (Olesen et al. 2007; Ponzoni et al. 2010; Ramanna Pathak 2012; Rosendal et al. 2006, 2012, 2013).1 On this basis we discuss interests in and needs for a sectoral approach to ABS by taking aquatic GR out of the scope of the NP. The case studies build upon reports from the aquaculture sector, academic articles and policy documents as well as interviews with key actors in the aquaculture sector. The studies include different stakeholders’ perceptions of a need for access and legal protection of breeding material and their experiences with relevant regulations.

Legal options for access, equity, conservation and innovation The CBD/NP pertains to international GR transactions, and the purpose here is to examine situations in which aquatic genetic material crosses national borders. Conservation is basically a prerequisite for access, innovation and benefit sharing. The essence of the CBD is to tie the balance between ABS and IPRs to that of conservation. The CBD attempts to establish a system for innovation based on biodiversity in order to contribute in a fair manner to conservation and sustainable use of biodiversity. Central in the CBD and the NP are the concepts of prior informed consent (PIC) and mutually agreed terms (MAT) (Tvedt, this volume). Without benefit sharing from GR utilization, there may be less willingness and ability to conserve and share biodiversity in developing countries. Patents are granted in national or increasingly in regional systems. The WTO and WIPO establish global standards for harmonization of various aspects of intellectual property rights in all member countries. Harmonized IPR regulations target all technological fields, including biotechnology. IPR legislation seeks its

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Balancing ABS and IPR governance in the aquaculture sector 199 justification in increasing the incentive for innovation. There are, however, indications that broad patent claims in the life sciences have the potential to hamper innovation by stifling access to technology (EU 2008; Feindt 2010; Hendrickx et al. 1993). TRIPS and WIPO have widened the scope for control over GR through IPRs. The tension between the overlapping objectives of IPR regulations and ABS remains a controversial North–South issue (Rosendal 2011). Patent law has been adapted to the life sciences through a large number of incremental steps. Among the first and more visible steps is the 1980 Diamond v. Chakrabarty case,2 in which the US Supreme Court accepted a patent to a genetically modified bacterium, with the consequence that patents may be granted on living organisms. Since then, patents in biotechnology have become increasingly wide and the patent criterion of inventive step has been lowered (Safrin 2004). It has also been pointed out that patent filings are increasingly replacing journal articles as places for public disclosure, hence reducing the body of knowledge in the literature.3 These tendencies increase the relevance of asking whether patents contribute to innovation or not. The ABS system seeks to balance expanding patent regimes by establishing a compromise between access to technology and access to the input factors in biotechnology—genetic resources (Koester 1997; Rosendal 2000). This interaction between different international objectives has caused North–South conflicts over access to seeds and medicinal plants versus patented technology in agriculture and pharmacy. Access is paramount to breeding, which accounts for the ITPGR and the FAO Commission putting higher emphasis on access than on mandatory benefit sharing. It also explains why the FAO members are reluctant to endorse the ABS system of the CBD (with its PIC and MAT), as benefit sharing could put some constraints on access, similar to IPRs (see Wolff, this volume). According to the ITPGR (Art. 12.3(d)), recipients shall not claim intellectual property rights that limit the facilitated access to material ‘in the form received’ from the multilateral system. However, GR users under the ITPGR are not obliged to share benefits based on the specific use of the resource (Tvedt 2012a). Accordingly, many African countries have been reluctant to donate their seeds to the FAO multilateral system, fearing that it leaves the door open for MNCs to access their seeds, while ‘in the form received’ is insufficient to prevent MNCs from patenting (Andersen 2008; Rosendal 2010). The FAO Commission process on inter alia aquatic GR does not discuss the link between patents and a special need for open access or the need for balancing these legal systems.

The specifics of utilising aquatic genetic resources Biological and technological traits pertaining to ABS in aquaculture Here we highlight how biological characteristics of aquatic species and technological developments affect the need for IPRs in aquaculture. The biology of fish might instigate both a greater need for IPRs and greater barriers to complying with IPR criteria, compared to the seeds sector. These barriers can be overcome with gene technology (Olesen et al. 2007).

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An important biological aspect in aquaculture is the relatively long interval (2 to 3 years) between acquisition of roe and marketing of farmed fish. This makes fish farming more vulnerable to market fluctuations compared to most agriculture crop production, where seeds will yield a harvest the same or following year. Some terrestrial animal husbandry is similar to fish farming in this respect, but it is less vulnerable, as livestock farmers primarily produce for domestic markets. Farmed shrimp and salmon are to a much larger extent produced for international markets, and this tends to complicate cooperation strategies, at least for smallscale farmers. For the bulk of aquaculture, including most carp production, the situation is presumably different, with most of the production for domestic markets. The vulnerability caused by long time intervals between acquisition of roe and marketing may increase the need and pressure for patenting in aquaculture. Biologically, the aquaculture and livestock sectors have, however, been less suited to the use of IPRs compared to plants. This is mainly because IPRs such as patents and plant breeders’ rights often require stability and uniformity, which calls for a higher level of genetic homogeneity. Fish populations as such are not patentable, and they generally need a higher degree of genetic diversity to stay healthy compared to many plant species. Thus, the requirements of patent law have not been biologically viable. This would change with the application of gene technology, which eases the way for IPRs to be applied to GR through genetic markers, including for aquatic material (Olesen et al. 2007). Moreover, the tendency observed in farm animal breeding of applying for process patents to breeding techniques may become relevant for fish (Tvedt 2007; Tvedt and Finckenhagen 2008). Salmon is much further down the road in terms of breeding and market consolidations compared to other species, and this is also where gene technology possesses the most immediate potential. Despite these biological and technological traits, breeders in general still opt for more traditional strategies for protection of breeding material (Rosendal et al. 2006, 2013). The most common biological protection strategy for selective breeding programmes is continuous upgrading, often combined with material transfer agreements, in order to keep the competition at bay and secure revenues. This provides rather weak control compared to IPRs, especially in relation to third parties to the contract, but it allows affordable access to the material for all breeders.4 Legal (IPR) protection of breeding results through patents potentially provides stronger control but is considered cumbersome, inefficient and expensive by actors in the (Norwegian) aquaculture branch. In previous investigations, it has been found that many fear that broadly permissive patent practice may limit innovation (Olesen et al. 2007). Providers and users—structural trends in ownership Salmon farming in Chile: International transactions with aquatic genetic resources Salmon farming in Chile dates back to the early 1970s and is based on Coho salmon from Japan and Atlantic salmon from Norway. In 2007, 30 to 40 per cent of the Chilean salmon production was still based on roe imported from Norway

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(Liabø et al. 2007). Most salmon breeding companies in Norway sign contracts with cooperating multipliers that propagate their genetic material for further sale to the industry, whereby multipliers agree that the material cannot be utilized or sold for further breeding. These private law agreements have not prevented the material from being acquired without authorization by third-party breeders (Olesen et al. 2007; Rosendal et al. 2006). The Norwegian companies Marine Harvest, Fjord Seafood and Cermaq were among the most dominant farm owners in Chile (Liabø et al. 2007) prior to the 75 per cent production collapse following a severe viral disease outbreak in 2008.5 Salmon farming in Norway: From public to multinational owners The Norwegian approach to aquaculture has been based on public breeding programmes and regional concerns tied to licensing policies (White Paper 2004– 2005). Breeding programmes were started with public financing in 1971 by a nonprofit research institute (Gjøen and Bentsen 1997). The base populations of these programmes were collected from Norwegian rivers, and in 1985 these populations were transferred to the cooperative ownership of salmon farmers’ organizations. However, as a result of an economic crisis in the late 1980s, ending with the bankruptcy of the cooperative, this activity was transferred to a shareholder company in 1992, AquaGen AS (Liabø et al. 2007). In order to secure the value of the publicly funded breeding material for the public interest, the structure of ownership was first divided between private and public shareholders. This was subsequently turned into a private venture company. Between 2009 and 2012, the shares were sold to a multinational, world-leading corporation in breeding (poultry, pig, aquaculture), the German EW Group.6 With this breeding programme supplying 35 per cent of the genetic material to the global salmon farming industry,7 this raises several problems from a gene-sovereign right perspective. Norwegian salmon breeders and farmers may end up in a situation with potentially limited access to breeding material from Norwegian salmon rivers. The material bought by the EW Group can theoretically be made unavailable for Norwegian breeders and less affordable for Norwegian farmers, subject to commercial assessments of the EW Group. This raises an interesting question regarding the relationship between private rights and the sovereign rights of a state over its natural resources. In line with the CBD, both the Nature Diversity Act of 2009 and the Act on Management of Wild Marine Resources of 2008 establish genetic material as a common property of the community of Norway. Export of breeding material includes genetic material and may hence require special regulations to secure the interests of the exporting country in maintaining these resources as common property. In this case, there is a qualitative difference between regular export of roe for fish farming and moving the breeding lines of AquaGen out of Norwegian jurisdiction. It is still an open question whether the latter would require a permit from the government. There have not, to our knowledge, been formal discussions in government on how to go about the sales of these breeding stocks of Norwegian salmon.

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Cod farming in Norway: At a crossroads The national project on cod breeding was initiated in 2001 (Liabø et al. 2007: 77). The establishment and operation of breeding programmes is very capital intensive (FHL 2008). Cod farming is still plagued with disease, and it was among the sectors that were hardest hit by the 2008 financial crisis (Dreyer and Bendiksen 2010). There is an increasingly high discrepancy between capacity and actual production in the cod-farming sector. The current official goal is to retain the cod breeding material and associated competence and knowledge bases as a Norwegian public good. As there is presently little commercial value here, public funding is still the preferred choice. Norwegian authorities express a normative persuasion to share this material with external users, such as cod breeders and farmers in Scotland. Nonetheless, the official view is that cod, like salmon, is intended to become profitable and commercialized at some point later on. However, the legal process of how to deal with this has only just started (Rosendal et al. 2013). Farmed tilapia in Asia: From public to private good The GIFT programme in South East Asia has similarities with parts of the salmon breeding programme in Norway. GIFT fish were originally a public good, funded by the UNDP, FAO, the Asian Development Bank and donor countries. During the 1990s, the GIFT programme provided fast-growing tilapia for small-scale Asian fish farmers, accompanied by training in traditional selection methods and lowinput technology to breeders in Asia and Africa (Greer and Harvey 2004). Then, due to financial drought and failure in commercialization through a foundation, the major part of the material of the breeding programme was sold to the MNC GenoMar. As a private company, GenoMar aims at profit and cannot uphold the original mandate of disseminating GIFT to poor countries more or less free of charge (Ponzoni et al. 2010). Regional access to tilapia from the Volta Basin: Case of Ghana Ghana has received technology transfer by getting access to GIFT breeding technology but has so far not been able to receive GIFT fish as a part of benefit sharing. There is great diversity of tilapia in the Volta Basin, the watershed of which is shared among Ghana, Togo, Ivory Coast and Burkina Faso. Based on this diversity, an advanced breeding programme for tilapia has been developed—the Akosombo tilapia strain—by the Aquaculture Research and Development Centre (ARDEC) in Ghana. In the aftermath of the Nagoya Protocol, Ghana is in the process of formalising ABS legislation and institutions (Rosendal et al. 2012). The results from the Akosombo breeding programme could arguably either be patented as breeding processes or remain a public good and be shared with countries in the region. Taking into consideration the interdependence of the countries that share tilapia in the Volta Basin, the issues of access and benefit sharing are important for this food production sector and an important case of transboundary GR transactions.

Balancing ABS and IPR governance in the aquaculture sector 203 This case exemplifies the need for benefit sharing, technology transfer and access in a regional perspective.

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Shrimp and carp farming in India: Increased external dependency India’s shrimp industry was until recently based on a steady input of native shrimp species, but it has been hampered by very few examples of successful captive breeding. In effect, India decided to import shrimp material for farming and downscaled most of its own efforts at breeding. The species are the nonnative vannamei and native monodon, imported from various MNCs, and the Indian shrimp farming industry is now largely dependent on breeding material from abroad (Ramanna Pathak 2012). For the domestic-market-oriented carp farming, Indian authorities express a normative persuasion that breeding material should also be shared with external users (Rosendal et al. 2013) and of ensuring affordable access for stakeholders (Ramanna Pathak 2012). This is in line with India’s National Biodiversity Act of 2002, which was enacted to implement the CBD to regulate access and use of GR. India strongly opposed TRIPS, and the Patent Act amendments (2002, 2005) do not provide for patents for plants and animals (Ramanna Pathak 2012). Foreign nationals must seek permission before accessing and patenting any biological resource in India (Ramanna Pathak 2012).

Discussion: A sectoral approach to aquatic genetic resources Drawing lessons from the cases, we discuss the interest in and need for a sectoral approach. Would provider countries be best advised to use the Nagoya Protocol or a special regime under FAO to enhance exchange of aquatic genetic material among them? Would an ABS regime along the lines of the NP provide them with better control in the case of MNCs appropriating and patenting their genetic material? And how are IPRs likely to play a role in these cases? Biology and trends in ownership structure: Increased need for access The cases display similar structural patterns of breeding programmes starting out with public funding, collecting genetic material from domestic sites to produce high-quality breeding material and an intention to keep this in the public domain for affordable access and dissemination. Next comes a phase of privatization and concentration, in which the breeding programmes are expected to become commercial (Ponzoni et al. 2010; Ramanna Pathak 2012; Rosendal et al. 2013). The trends frequently involve MNCs as both providers and major users of the aquatic genetic material; hence, international transactions enter the picture. A recurring question raised in our reviewed case studies is what this may imply for affordable access to upgraded material in public breeding programmes. It is in this phase that the balance between various forms of ABS and IPRs systems becomes relevant, as

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both put some constraints on access. Another question is whether the patent system can provide the fundament for making breeding programmes economically viable. With interesting similarities to the general ABS debate prompted by the CBD/ NP in the agricultural and pharmaceutical sectors, there is arguably little immediate value in breeding programmes and bioprospecting for aqua-pharmacy (Rye 2012). Previous studies have shown that the incentives for capitalising on salmon breeding materials have been virtually nonexistent, due to low roe prices and low profit for improved breeding material (Olesen et al. 2007; Rye 2012). Similarly, there is arguably little profit to be reaped from increased knowledge about and improvements of GR and their traits, as has also been claimed in the ABS debate. At the same time, it is hard to refute the great profits from biotechnology at all levels, including breeding, and there is a growing business interest in access to genetic material (Laird and Wynberg 2005). This seems paradoxical with a view to the value attributed to faster-growing and hence cheaper fish, which is resulting from the breeding programmes. Here, we also see that the willingness to pay is small, but the interest in access is high. The problem is that bringing forth fast-growing, disease-free fish is very expensive, whereas the result can easily be copied at very low costs. This situation may arguably indicate a need for maintaining the public good represented by public breeding programmes and a responsibility for these programmes when faced with demands for profitability and the poor incentives for investing in fish breeding. This suggests that breeding programmes making new fish strains available for increased food production or lower environmental impacts could be seen as a typical public good.8 The example of the tilapia GIFT programme is relevant here. The main criticism of the GenoMar deal was that donors had invested to produce GIFT for dissemination in poor countries. With GenoMar, however, GIFT fish and related training became much less accessible to poor farmers (Ponzoni et al. 2010). At the same time, in the face of dwindling public support, more of the ‘GIFT legacy’ might have been lost altogether without GenoMar’s investments (Eknath and Hulata 2009: 209). This illustrates the problem of maintaining a high-quality breeding programme for affordable access to improved material for poor farmers; this is hardly compatible with shareholders’ need for short-term profits. There are similarities between the normative approach of Norwegian and Indian authorities and the GIFT donors in managing the breeding programmes. Most central is the public interest in establishing good breeding material for breeders and farmers, large- and small-scale alike, to enhance food security (Liabø et al. 2007; Ramanna Pathak 2012; Rosendal et al. 2006, 2013). With their domestic ABS legislation, Norwegian and Indian authorities express a normative persuasion that aquatic breeding material should also be shared with external users. Similarly, India and Ghana could have vested interests in safeguarding regional access to carp and tilapia. Whether commercial or not, breeding programmes are vulnerable to access restrictions on wild and bred genetic material. It is costly to keep up the high quality of the programmes, as in order to adapt to future changing production systems, breeding material must also be continuously upgraded to stay healthy. However,

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Balancing ABS and IPR governance in the aquaculture sector 205 the cost of maintaining a good, disease-free material is very high, and it is questionable whether the market can be expected to deliver this service or product even with a well-functioning IPR scheme in place, when there is such a high degree of uncertainty regarding profits.9 We have seen that the dominant market actors were not able to supply this service in the Chilean case, and we have seen the loss of affordable access resulting from the discontinuation of public funding for GIFT. These cases illustrate the challenge of securing the policy goal of affordable access in order to stimulate genetic improvements in aquaculture. Also in agriculture, IPRs and ABS regulations alike are regarded as not only incentives but also challenges to crop breeding and food security (Esquinas-Alcazar 2005). This could speak in favour of emphasising access rather than benefit sharing in aquaculture. Differences in the gene flow as an argument for a sectoral approach In contrast to seeds in agriculture, there have been few cases of ABS issues arising in the aquaculture sector. A central explanation for lack of ABS claims is that ‘exchange of aquatic genetic resources has generally not been from South to North, as appears to have been the case in the crop sector’ (Bartley et al. 2009: 33).10 Moreover, breeding programmes are most common for salmon and tilapia. The gene flow is largely restricted to North to South in the case of salmon and from South to South in the cases of shrimp and tilapia (Bartley et al. 2009: 38; Liabø et al. 2007). In addition to the GIFT case, an example of South-South gene flow is found in Ghana, where there is mutual dependency among the countries that share tilapia within the Volta basin. This situation has raised a domestic debate in Ghana about whether to secure IPRs to the tilapia GR in the Ghanaian breeding programme or to maintain open access to this material in the Volta basin for the common good (Rosendal et al. 2012). The international transfers of salmon raised similar concerns about whether Norwegian salmon breeders might lose control over breeding material as the salmon GR were shipped out to Chile and elsewhere (Olesen et al. 2007). However, Norwegianowned MNCs have become very dominant in salmon breeding and farming in Chile. Hence, some Norwegian actors, notably the MNCs Marine Harvest and Cermaq, retain access to the Atlantic salmon material. The case exemplifies how relatively small multinationals with integrated production, controlling a large part of the value chain, can dominate the technological utilization of the resources. As salmon is produced for international markets, the Chilean aquaculture crisis and loss permitted increased salmon production elsewhere by the same company. As the provider and user in the case of salmon largely derive from the same country, ABS principles of PIC and MAT would not be invoked and there would seem to be little demand for a multilateral system for exchange of aquatic GR similar to the ITPGR. Still, while there have been few cases of ABS issues across national borders, due to structural developments in ownership we may see future access issues arising between small-sized enterprises and MNCs engaged in the fish farming industries. The rise of MNCs may affect the balance between ABS and IPRs and hence trigger the need for strong PIC and MAT to balance IPRs.

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The cases illustrate the uneven relationship that is rapidly developing between small-scale and large-scale actors, as MNCs already control large parts of the improved genetic material, not only in salmon but also for shrimp and tilapia. India, Norway and Ghana would hence seem well advised to take legal measures to keep their genetic material in a national public domain but aim at a better balance internationally between ABS and IPRs. Ghana might need ABS legislation with PIC and MAT in the case of MNCs taking an interest in African breeding programmes on tilapia. Here the ABS system of the CBD/NP provides for stronger control than what can be expected from the FAO Commission if drawing on the principles of the ITPGR. The latter treaty decouples benefits from the provider as well as from the resources, as no demand is made on the user to enter into contractual obligations to share benefits (Tvedt 2012a). However, the cases of shrimp and tilapia also illustrate how it is important for developing countries to ensure regional access to shared genetic material. The special situation of a gene flow in aquaculture primarily between countries of the South differs from the seed flow from South to North in agriculture. FAO’s stronger emphasis on access rather than benefit sharing might fit the need for regional exchange. These types of access regimes do not, however, address the overall balance between ABS and IPRs. Hence we ask: Are actor interests in balancing ABS and IPRs different in aquaculture? The sale of the Norwegian salmon breeding programme to the multinational EW Group raised questions about access to and further improvement of breeding material in (previously) publicly funded programmes. In a situation in which public material is privatized, national authorities have the policy option, which could be bolstered by the Nagoya Protocol, of tying legal conditions to the acquisition (Tvedt 2010; this volume). The Norwegian Nature Diversity Act seeks to enhance access and to counter patenting on genetic material from public collections. This could be in the form of obligations to maintain affordable access to breeding material from programmes supported by public funding, such as restrict patenting along the lines of FAO’s ban on patents on material ‘in the form received’ from its system. It is difficult, however, to draw the legal lines between such genetic material and patentable material. These boundaries have never been tested by courts of law (Tvedt 2012a). Hence, we need to examine actors’ interests in access to and protection of aquatic genetic material and whether these interests are changing with the developments in technology and in ownership structure, in order to discuss the need for a sectoral approach in aquaculture. Several case studies indicate that in response to the structural tendencies towards privatization and larger and fewer firms, the aquaculture sector may become compelled to follow a strategy of patenting for competitive reasons (Ponzoni et al. 2010; Ramanna Pathak 2012; Rosendal et al. 2013). Currently, the application of IPRs has not, however, moved beyond being a point of discussion in aquaculture, and breeders take precautions against patenting by publishing results

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Balancing ABS and IPR governance in the aquaculture sector 207 from innovation. A prominent example is how neither of the two salmon breeding companies (AquaGen and Landcatch Natural Selection) that managed to map the marker gene that affects resistance to the highly devastating infectious pancreatic necrosis chose to patent it. This was, however, prior to the sale of AquaGen to the multinational EW Group, and it is possible that patenting would have been the strategy chosen by the EW Group. This could have detrimental consequences for the industry, as a monopoly right could hinder others from embarking on the same research and breeding. There are examples in which patents have had a chilling effect on investments and innovation, such as the patent on a naturally occurring virus strain involved in pancreas disease (another major disease in farmed fish), which has hindered subsequent development of vaccines (Tvedt 2012b). Actors in both the private and public sectors agree upon the great value of securing free access to wild GR for breeding material. The same actors realize that the real value lies in continued upgrading and improvement, and they argue that patents are not useful for this (Olesen et al. 2007; Rosendal et al. 2013): The long protection period in patent law (20 years) hardly promotes rapid innovation in a sector in which continued upgrading in a biological dynamic system is the most viable and sustainable approach. Thus, patenting introduces a more static system than the biological system itself calls for, which would seem more likely to hamper than to stimulate innovation. A widespread concern among actors is that evolving IPR regimes represent a constraint to future continuous upgrading and access, as it may pave the way for further monopolization in the sector (Olesen et al. 2007). Within the private sector, it was also argued that there is a need to return to stronger public investments in order to avoid IPRs and the emergence of monopoly actors, such as Monsanto in the seeds sector, and thus secure the livelihood of poor people (Rosendal et al. 2013). Compared to the crop seeds sector, in which four MNCs have a market share of 30 per cent of global sales and the five largest MNCs account for 80 per cent of patents granted at the US Patent Office (Louwaars et al. 2009: 25 and 35), aquaculture is still much less dominated by MNCs. This could in part be explained by the US being a source of the bulk of MNCs, but it is only a small actor in aquaculture.11 There are, however, some multinationals on the horizon, such as CP Thai, Marine Harvest, Nireus Aquaculture and the EW Group. Their activities also tend to encompass large segments of farmed animals (chicken and swine), and they tend to focus on developing an integrated approach, thus giving them an even greater potential for becoming dominating actors in the food supply chain. These tendencies might become even stronger if the use of patents increases correspondingly. Hence, providers still seem to have a need for maintaining the discretion to use ABS to balance IPRs. MNCs would clearly have an interest in free access and voluntary benefit sharing (allowing for free-rider strategies) in line with ideas reflected in the ITPGR (Wallbott et al., this volume; Tvedt, this volume). In a scenario of greater MNC dominance, provider countries would seem to be best served by an ABS regime that includes PIC and MAT in line with the CBD and the Nagoya Protocol.

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Summary and concluding remarks The overall international gene flows within the aquaculture sector go a long way in explaining why it has been less subject to ABS-IPR conflicts between developed and developing countries compared to the plant and pharmaceutical sectors. As the gene flows largely go from South to South or from North to South, the need for either a Nagoya Protocol ABS regime or a multilateral system similar to the ITPGR seemed less prominent in aquaculture. The predominant gene flows from South to South do, however, raise new and interesting questions for ABS governance in aquaculture. For widely used species such as carp, shrimp and tilapia, developing countries might be interested in increased regional cooperation aimed at safeguarding affordable access among themselves. Here, ideas from the ITPGR could be interesting, as access is more important than benefit sharing. Still, while not engendering a North-South conflict, the basic problems of access to aquatic genetic material resemble that of the general ABS-IPR conflict: Aquaculture is experiencing pressure towards higher production efficiency and short-term profits. This leads to a stronger push for patent protection, aided by harmonization through TRIPS and WIPO. Vaccines, feed products, marker genes and breeding methods are patentable, even though fish populations are not. Our cases indicate that as a result of the market concentration, ABS-IPR conflicts are likely to evolve between small-scale providers and MNC users also in the aquaculture sector. For provider countries, ABS legislation along the lines of the Nagoya Protocol may thus be a relevant means for controlling aquatic GR. Authorities in Norway, India, Ghana and the GIFT donors share the normative objective of maintaining affordable access to improved breeding material. This illustrates the nature of breeding material as a public good in line with ABS thinking. As patenting may remove basic knowledge (GR) from the public domain, many actors warn that it can have negative implications for aquaculture as a foodproviding sector. A common concern among actors is how to maintain affordable access to good breeding material in a globalized market. The biology of breeding suggests that the real value lies in continuous upgrading. Patenting is generally not useful for this, as it freezes innovation to what is described in the patent claim for the protection period of 20 years. Structural and technological changes within the aquaculture sector seem, however, to be more influential than biological traits in affecting actors’ perceptions of a need for patent protection: The sector displays a growing attention to IPR options alongside a growing apprehension that this could lead aquaculture into the same type of conflicts as those experienced within the plant breeding sector. And a 20-year patent monopoly is generous time for an MNC in building its market position. This is relevant to Article 4 of the NP and the debate concerning the need for sector approaches. So far, the CBD/NP is the most comprehensive in terms of balancing access, equity, conservation and legal protection, although with limited success in implementing these principles. The question is whether other systems are more promising. The current negotiation agenda in the FAO Commission to

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Balancing ABS and IPR governance in the aquaculture sector 209 develop a governance system for inter alia aquatic GR and microorganisms does not include issues of IPRs and power relations between providers and users. The discussions in the FAO Commission largely refrain from acknowledging concern for the strong drive for patents and monopolies in the food production sectors. To remove all genetic material with a potential for domestication from the governance regime of the Nagoya Protocol would thus seem to run counter to the interests of the developing world. Also for countries like Norway with both a strong industry and a broad genetic diversity in the relevant species, one can question their national interest in accepting an FAO treaty that would commit them to refraining from exercising their sovereign rights over nationally important GR. So far, benefit sharing is more explicit and visible under the CBD/NP through PIC and MAT, compared to alternative voluntary systems envisaged by the FAO. For developing countries to negotiate ABS regimes under the FAO could mean going back to square one with regard to achieving benefit sharing and a system balancing IPRs. By donating their genetic material to other governance systems, they might leave the legal door open for MNCs to access and patent this material with no obligations for sharing. They would also lose the discretion to exercise their sovereign rights over nationally important GR. The transfer of all types of domesticated GR from the Nagoya Protocol to the FAO would be in the interest of MNCs, as access here is detached from mandatory benefit sharing and there is no focus on the balance towards IPRs. An overall question is how to maintain affordable access to genetic breeding material in light of the difficulties involved in keeping such material within the public domain. Provider countries still seem best advised to establish ABS regulations along the lines of the Nagoya Protocol in order to maintain stronger control and negotiation cards in future bioprospecting deals. For food security worldwide, the goal of finding a balance between the objectives of access, equity and sustainable use seems to be relevant across sectors. Using the potential under the NP to develop sector models for access and benefit sharing particularly adapted for this sector might prove to be a more balanced and future-oriented solution.

Notes 1 While Asian countries and China in particular dominate aquaculture with 88 per cent of the total world production, the salmon industry is dominated by Norway, Chile, Canada and Scotland. 2 Diamond v. Chakrabarty, 447 U.S. 303 (1980). 3 See http://www.ornl.gov/sci/techresources/Human_Genome/elsi/patents.shtml (accessed 29 October 2011). 4 For a discussion of the legal and biological aspects relating to the various options, see Rosendal and colleagues 2006. 5 See http://www.ft.com/cms/s/0/53494efa-1c2c-11df-86cb-00144feab49a.html#axzz1u QrXBDgB (accessed 1 March 2013). 6 See http://www.fishfarmer-magazine.com/news/fullstory.php/aid/1415/EW_Group_ac quires_majority_shareholding_of_Aqua_Gen.html (accessed 23 September 2009). 7 See http://www.aquagen.no/no/Spesialmapper_skjult_fra_meny/Nyheter/EW+Group+kj %C3%B8per+50,2+prosent+av+Aqua+Gen.9UFRnSZn.ips (accessed 25 January 2013).

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8 Public funding is often initially the preferred choice for aquatic breeding programmes due to the high costs. Compared to commercial breeding programmes, aimed at shortterm profit, a public programme may have a broader range of breeding goals, including animal welfare and environmental concerns. Hence, it is expected to obtain gains in growth rate and economic returns later than a private programme—but to give more long-term viable fish material and become more sustainable (Olesen et al. 2007). 9 It may seem that it is neglect of this paradoxical situation that has led to pressure towards privatization, profitability and eventually IPRs in the aquaculture sector. 10 Also, traditional knowledge may have less significance in aquaculture compared to agriculture and medicine, as the bulk of the world’s fish farming is based on wild catches (even though knowledge about what fish are more suited to catch and breed may be relevant). 11 While seafood is the number-one traded food in the world, it constitutes the secondlargest trade deficit in the US, only beaten by oil (Koonse 2012).

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Balancing ABS and IPR governance in the aquaculture sector 211 Jungcurt, S. (2008) Institutional Interplay in International Environmental Governance: Policy Interdependence and Strategic Interaction in the Regime Complex on Plant Genetic Resources for Food and Agriculture, Aachen, Germany: Shaker Verlag. Koester, V. (1997) ‘The Biodiversity Convention Negotiation Process and Some Comments on the Outcome’, Environmental Policy and Law 27(3): 175–192. Koonse, B. (2012) How Aquaculture, Food Security, Trade, and Food Safety are Intimately Connected, paper delivered at the Aquaculture America Conference, Las Vegas, US, February 2012. Laird, S. and Wynberg, R. (2005) The Commercial Use of Biodiversity: An Update on Current Trends in Demand for Access to Genetic Resources and Benefit-Sharing, and Industry Perspectives on ABS Policy and Implementation, UN Doc. UNEP/CBD/ WGABS/4/INF/5, 22 December 2005, Convention on Biological Diversity. Liabø, L., Nystøl, R., Pettersen, I., Vang, T.A., and Veggeland, F. (2007) Rammebetingelser og Konkurranseevne for Akvakultur (Framework Conditions and Competitiveness in Aquaculture), Oslo: Norsk Institutt for Landbruksøkonomisk Forskning. Louwaars, N., Dons, H., von Overwalle, G., Raven, H., Arundel, A., Eaton, D., and Nelis, A. (2009) Breeding Business. The Future of Plant Breeding in the Light of Developments in Patent Rights and Plant Breeders’ Rights, Wageningen, the Netherlands: Centre for Genetic Resources. Oberthür, S. and Gehring, T. (eds.) (2006) Institutional Interaction: Enhancing Cooperation and Preventing Conflicts between International and European Environmental Institutions, Cambridge, MA: MIT Press. Olesen, I., Rosendal, G.K., Bentsen, H.B., Tvedt, M.W. and Bryde, M. (2007) ‘Access to and Protection of Aquaculture Genetic Resources—Structures and Strategies in Norwegian Aquaculture’, Aquaculture 272(Supplement 1): 47–61. Ponzoni, R.W., Khaw, H.L, and Yee, H.Y. (2010) GIFT: The Story Since Leaving ICLARM (Now Known As the WorldFish Centre)—Socioeconomic, Access and Benefit Sharing and Dissemination Aspects, FNI Report 14/2010, Lysaker, Norway: Fridtjof Nansen Institute. Posey, D.A. and Dutfield, G. (1996) Beyond Intellectual Property. Toward Traditional Resource Rights for Indigenous Peoples and Local Communities. Ottawa: International Development Research Centre. Ramanna Pathak, A. (2012) Access to Genetic Resources and ‘Rings of Protection’ in Indian Shrimp Aquaculture, FNI Report 5/2012, Lysaker, Norway: Fridtjof Nansen Institute. Raustiala, K. and Victor, D.G. (2004) ‘The Regime Complex for Plant Genetic Resources’, International Organization 58(2): 277–309. Rosendal, G.K. (2000) The Convention on Biological Diversity and Developing Countries, Dordrecht, the Netherlands: Kluwer Academic Publishers. Rosendal, G.K. (2001) ‘Impacts of Overlapping International Regimes: The Case of Biodiversity’, Global Governance 7(1): 95–117. Rosendal, G.K. (2006) ‘Regulating the Use of Genetic Resources—Between International Authorities’, European Environment 16(5): 265–277. Rosendal, G.K. (2011) ‘Biodiversity Protection in International Negotiations: Cooperation and Conflict’ in Dinar, S. (ed.) Beyond Resource Wars: Scarcity, Environmental Degradation, and International Cooperation, Cambridge, MA: MIT Press, 59–86. Rosendal, G.K., Olesen, I., Bentsen, H.B., Tvedt, M.W. and Bryde, M. (2006) ‘Access to and Legal Protection of Aquaculture Genetic Resources—Norwegian Perspectives’, Journal of World Intellectual Property 9(4): 392–412.

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Rosendal, G.K. (2010) Access to and Benefit Sharing of Genetic Resources in Cameroon: Legal and Institutional Developments and Challenges, FNI Report 8/2010, Lysaker, Norway: Fridtjof Nansen Institute. Rosendal, G.K., Olesen, I. and Tvedt, M.W. (2012) Access to, Equity and Protection of Genetic Resources in Ghana: Legislation and Institutions for ABS and the Case of Tilapia (O. niloticus), FNI Report 15/2012, Lysaker, Norway: Fridtjof Nansen Institute. Rosendal, G.K., Olesen, I. and Tvedt, M.W. (2013) ‘Evolving Legal Regimes, Market Structures and Biology Affecting Access to and Protection of Aquaculture Genetic Resources’, Aquaculture, published online 6 April 2013, DOI: 10.1016/j. aquaculture.2013.03.026. Rye, M. (2012) ‘Considerations for Sustainable Genetic Improvement of Aquaculture Species’, paper presented to Aquaculture America Conference, Las Vegas, NV, 1 March 2012. Safrin, S. (2004) ‘Hyperownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life’, American Journal of International Law 98(4): 641–685. Tvedt, M.W. (2005) ‘How Will a Substantive Patent Law Treaty Affect the Public Domain for Genetic Resources and Biological Material?’ Journal of World Intellectual Property 8(3): 311–344. Tvedt, M.W. (2006) ‘Elements for Legislation in User Countries to Meet the Fair and Equitable Benefit-Sharing Commitment’, Journal of World Intellectual Property 9(2): 189–212. Tvedt, M.W. (2007) ‘Patent Protection in the Field of Animal Breeding’, Acta Agriculturae Scandinavica, Section A—Animal Sciences 57(3): 105–120. Tvedt, M.W. (2010) Norsk Genressursrett, Oslo: Cappelen Akademiske Forlag. Tvedt, M.W. (2012a) Side Event on FAO/CGRFA presented at the Eleventh Conference of the Parties (COP11) to the Convention on the Biological Diversity, 8–19 October 2012, Hyderabad, India. Tvedt, M.W. (2012b) ‘Patent Law Affects Innovation in Aquaculture’, Global Aquaculture Advocate, September/October 2012, 70–71. Tvedt, M.W. and Finckenhagen, M. (2008) ‘Scope of Process Patents in the Field of Animal Breeding’, Journal of World Intellectual Property 11(3): 203–228. White Paper (2004–2005) (Stortingsmelding) Den Blå Åker (The Blue Field) 19. Young, O.R. (1996) ‘Institutional Linkages in International Society: Polar Perspectives’, Global Governance 2(1): 1–24.

12 Governance options for ex-situ collections in academic research

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Susette Biber-Klemm, Kate Davis, Laurent Gautier and Sylvia I. Martinez

Introduction ‘Biodiversity research’ in the sense of Article 8(a) of the Nagoya Protocol (NP) is directed at taking stock and increasing knowledge in systematics, ecology and evolution. Genetic resources (GR) are collected, identified, classified, characterized and stored for scientific and/or educational use in ex-situ facilities (Biber-Klemm et al. 2010). Non-commercial academic biodiversity research is an important actor as regards access and benefit sharing (ABS): Research on GR is to a substantial degree carried out by academia and its results are essential for conservation and sustainable use of biological diversity. This chapter discusses options for governance of ABS of GR and associated traditional knowledge (TK) stored ex situ relating to non-commercial academic biodiversity research. We consider public collections that are essential for research contributing to conservation and sustainable use of biological diversity. The focus is on resources that are subject to the NP, excluding agrobiodiversity (in particular crops) that are accessed for use in breeding and when in part another system applies. In our view, research on natural resources and associated TK takes place in three ‘spheres’: (1) in a strictly non-commercial one; (2) in a transitional sphere and (3) in a commercial sphere. A problem regarding the sharing of benefits may arise if a resource or information accessed for non-commercial, academic research willingly or unwillingly crosses over to commercial use. Although we believe that the probability of this happening is small to non-existent as regards non-living samples (as stored in herbaria, for instance) and—as will be shown—controlled in the case of living resources (as in botanical gardens), it seems that this possible transition from the first sphere into the third one is at the bottom of the request of providers for strict compliance measures and tight control of the movement of the resources throughout the value and information chain. This claim conflicts with essential elements of academic good practice: 1) the accessibility of resources in situ and ex situ for peers; 2) storage of the in-situ accessed resources in repositories in order to guarantee replicability of results; 3) the exchange of resources within a peer network; and 4) publication of the research results (Martinez and Biber-Klemm 2010).

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The concern of non-commercial academic research is that the dilemma between control and accessibility leads to continuing uncertainty and to providers hesitating to grant access to GR and TK for academic research. We argue that the unresolved questions have the potential to harm academic biodiversity research and international research cooperation. Consequently, we need to discuss options that are apt to serve the needs and interests of both the research community and the GR providers. In this chapter, we discuss this problem with regard to ex-situ collections established and maintained by public institutions in the context of their mandate to advance biodiversity-related research and education. As illustrated below, ex-situ collections are an important working instrument for public research, to comply with the previously mentioned academic good practice and to guarantee safeguarding and accessibility of the stored samples in the public interest (in contrast to private collections that serve commercial research and development [R&D] and are under secrecy of the owner). Our hypothesis is that, in order to assure continuity of research into biological resources, two major issues need to be addressed: the creation of trust in the non-commercial scientific networks and securing benefit sharing in case of commercial use of resources accessed from public ex-situ collections. There exist models that address the problem. Yet each of them addresses only one of these concerns. We attempt to learn from these models and to assess resulting options with regard to efficiency, practicability and feasibility. The basic question is whether we can identify elements that can be combined into a uniform solution within the ABS system under the Convention on Biological Diversity (CBD) and its NP. The chapter proceeds as follows. First, we describe the problem contrasting relevant positions in the negotiations of the NP with the requirements of good scientific practice in academic research and their application regarding ex-situ collections and publications. We then present brief case studies that provide responses to issues raised by the above analysis. Finally, we discuss the question of creating a uniform solution, taking into account the provisions of the NP.

The problem: Common and conflicting interests The debate about the status of resources stored in ex-situ collections located outside the country of origin is not new. In the negotiations of the CBD, resources acquired before its entry into force, including pre-existing ex-situ collections, were excluded from its scope. The topic has regularly surfaced ever since. At the centre of the debate stands the claim to subject these resources to Article 15 of the CBD too, arguing that access to resources stored ex situ constitutes ‘new use’ triggering a new benefit-sharing obligation (see, e.g., CBD 1998: para. 223 and following sections; see also Tvedt, this volume). Yet so far, no substantive solution has been agreed upon, with the exception of certain plant GR regulated by the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR; see following sections). Similarly, the question of sharing benefits resulting from the use

Governance options for ex-situ collections in academic research 215 of publicly available TK was an issue throughout the NP negotiations (Wallbott et al., this volume). The following section sketches the different interests involved and the respective positions in the NP negotiations.

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Ex-situ collections, academic research and the CBD As in the political discourse, the language regarding ex-situ resources is somewhat unclear (compare Nijar 2011b) and clarification is necessary. Here we discuss public ex-situ collections, in contrast to (1) ex-situ resources in general (that might include resources that are accessible in a commercial context) and (2) private collections that serve the interest of commercial exploitation. Accordingly, the focus is on public ex-situ collections of biological material located outside their country of origin and outside the Food and Agriculture Organization (FAO) system (see section on ‘Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture’ below), as well as on published TK. We are considering collections that serve a public interest because they are essential for research contributing to the conservation and sustainable use of biological diversity in the sense of Article 8(a) NP. Ex-situ collections are very diverse: They are held by a great variety of institutions and differ in size, types of resources held and available resources. They include culture collections, cell banks, germplasm collections, stock centres, herbaria, museum collections, zoos and botanic gardens. They may comprise diverse GR (dead, living or abstract information) that have been accessed before or after entry into force of the CBD/NP and for which crucial access information (origin, transfers) may not always be available. Their common denominator is that they are all essential for non-commercial, academic research (OECD 2001). Ex-situ collections document, archive and adequately preserve the (dead or living) accessions for science and education. To advance scientific knowledge, researchers make results and data publicly available for others to build on. Collected material, data and analyses have to be stored beyond the completion of the project (Salathé 2008). Submitting information (including genetic information) to appropriate repositories and databases guarantees the credibility of published research results and enables peer scientists to interpret, reproduce and validate the results (European Science Foundation 2000). An example of the research routines in taxonomy may illustrate the importance of ex-situ collections for non-commercial biodiversity research. The accurate taxonomic identity of a studied organism is an essential prerequisite for sound research. For this purpose, scientists often have to rely on the expertise of taxonomists. Due to a global shortage of taxonomic knowledge (CBD 2007), researchers may have to send their specimens to specialized taxonomists located abroad. Reference collections that form huge libraries of scientific data and contain specimens collected across time and space (Thomson 2003) provide a crucial basis for additional analytical studies (for instance, about underlying causes of biodiversity changes and evolution). Without early natural history collections, many species would be unknown, because they are nowadays extinct. Current knowledge relies

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on specimens collected since the 16th century and held in repositories across the entire globe. Each repository is also home to taxonomists that are specialists for a certain group of organisms. Thus, taxonomy relies on an incessant exchange of specimens among specialists around the world who identify, examine and verify the classification of organisms. It requires a dense networking among scientists and throughout repositories. Fixed living material stored in a botanical or zoological institute can potentially be sent to any other interested institution. For example, Conservatoire et Jardin Botaniques de la Ville de Genève, one of the top 10 botanical collections, receives an average of 15,000 specimens per year and exchanges on loan about 8,000 specimens with more than 100 institutions worldwide. To ensure transparency of scientific research, publications are the most important means of reporting on research findings (Salathé 2008). It is imperative that a publication disclose enough information to allow peers to assess its validity. In addition, the published knowledge stimulates new ideas and thus the advancement of science. This poses a particular problem for research on TK. Providers consider publication of TK as a vehicle for its misappropriation (Barrett and Bannister 2010; Dutfield 2006). This mistrust is triggered by the experience that in some cases, TK has been patented in the form in which it was published, because the existing prior art had not been taken account of. In contrast, the problem in the context of academic research is caused by a disparity in the value systems: According to the (Western) intellectual property rights system, published TK is in the public domain and therefore freely accessible. It can therefore be legitimately used for commercial R&D without the consent of its holders and without any obligation to share the resulting benefits. This also applies to the patenting of the research results based on published TK. Debates regarding ex-situ collections and published TK The described needs of academic research and ex-situ collections collide with the interests of the providers of the resources in sharing the benefits resulting from their utilization. The providers’ concern is that GR and TK accessed for noncommercial use cross over to commercial R&D without their consent and agreed terms. This basic problem is amplified by the apprehension that access to exsitu resources is replacing bioprospecting in situ (Meienberg and von Weizsäcker 2010). In our view, this problem is rooted in the ABS system itself. It seems that at the time of its inception, the idea was based on a linear model of bioprospecting.1 Yet in practice, the ABS processes prove to be complex indeed. For biodiversityrich countries, it is difficult to control the movements of informational values through the innovation and value chain in the technology-rich countries. This and the reluctance of ‘user countries’ to introduce effective control and compliance measures led to their increased anxiety to forgo benefit sharing (Biber-Klemm 2008; Biber-Klemm et al. 2010: 15–17). This concern resulted in strong claims

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Governance options for ex-situ collections in academic research 217 for stringent control and compliance measures (Wallbott et al., this volume; Nijar 2011a). In this context, in the negotiations of the NP there was intense debate about ex-situ resources, including the question of published TK, and in several areas consensus could not be attained. Two interlinked requests of provider countries deserve particular mention. First, based on the aforementioned concern that ABS obligations might be sidestepped by accessing resources stored ex situ, it was suggested that collections direct researchers that wish to access a stored sample to its country of origin ‘and he or she will have to abide by the ABS law or administrative or policy measures of that country . . .’ (Nijar 2011b: 21). If applied to academic practice, such a request would completely paralyze research. The problem is amplified by the fact that the collections host a huge amount of specimens (dead and living) that have been accessed in situ long before the entry into force of the CBD/NP. In respect to this question of the temporal scope of the ABS obligations, provider countries suggested, second, in the negotiations that access to ex-situ resources, formerly accessed in situ and stored for scientific purposes, for commercially oriented R&D be considered a ‘new use’ corresponding to a new access that needs to conform to the ABS requirements. This approach sets out from a broad interpretation of ‘access’ that met with opposition of others who argued that access and utilization are to be regarded as linked, thus subjecting only resources accessed in situ after the entry into force of the CBD or the NP to the system (See Buck and Hamilton 2011; Kamau et al. 2010; Nijar 2011a). Similarly, the question of published TK touches upon two controversial points, namely the question of the applicability of the public-domain argument and the question of the temporal scope in case of accessing TK published before the entry into force of the CBD/NP for utilization in (commercial) R&D. It was discussed under the more general heading of ‘publicly available TK’. Developing countries argued that ABS obligations should also apply when knowledge was not obtained directly from indigenous and local communities or when there was no identifiable owner of the resource (Nijar 2011b). In Nagoya, as a way out of the deadlock, non-negotiated language on a Global Multilateral Benefit Sharing Mechanism was eventually included in the NP as Article 10. It gives the mandate to the COP to ‘consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of GR and TK associated with GR . . . for which it is not possible to grant or obtain prior informed consent’. This solution does not resolve the divergences but opens a window for taking them up at a later stage (see also next section). Analysis: Common and conflicting interests The CBD is characterized by the triple goal of conservation and sustainable use of biological resources and equitable sharing of the benefits arising from utilization

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of genetic resources. Academic biodiversity research answers to this common interest: In order to conserve and sustainably use biological biodiversity, all parties to the CBD have agreed to identify and monitor the biological diversity on their territory. To this end, a major research effort in basic science such as taxonomy, ecology and conservation biology is called for (Martinez and Biber-Klemm 2010). The complementary responsibilities of providers and users enshrined in the ABS system are meant to contribute to this common goal. In practice, this logical but very abstract concept reveals its high complexity. In our case, there is a basic dilemma between easy access to and free exchange of the resources versus the securing of benefit sharing by tight control measures. Among providers exists the concern that resources originating from their country, accessed for noncommercial ends, will be used commercially (with or without prior patenting) without their consent and without sharing (monetary) benefits. Yet the academic practice of transparency and open access makes the tracking of GR throughout the value chain, as proposed as control measures, difficult and costly. The roots of this antagonism are complex, ramified and reaching deep into the history of colonialism. Its background is formed by the advances in science in the last century, the ensuing paradigm shift in the discipline of plant genetic resources and the process of decolonization after World War II. Due to the progress in science and technology (Palladino 1993), awareness rose of the commercial value of biodiversity and, at the same time, of its increasing loss. Concurrently, the rise of profit-oriented companies working with expensive R&D methods created pressures to provide intellectual property protection. This led to an increasing gap between raw and worked materials. Whereas raw materials remained freely accessible, worked materials became more and more protected and accessible only by paying a higher price (Biber-Klemm 2008). In the movement of the emancipation of the former colonies in the 1960s and 1970s,2 political debates characterized by a North–South divide questioned this development. Eventually, the patentability of inventions based on genetic engineering was responded to by the reaffirmation of the sovereign rights of states over their GR by the CBD and the creation of the ABS system. In the view of academics working in non-commercial biodiversity research, these enclosure scenarios do not touch upon their investigations. To the contrary, they consider their research in the biodiversity-rich countries of the South generating knowledge that is essential for conservation of GR and their sustainable use, including for their valorization by the host countries. They hold the view that they contribute to the global public interest of biodiversity conservation and to the interest of the host country to learn about its GR. The concern of academic research is that the concerns of the providers will lead to measures that impede their research and scientific progress such as: − requirement of impractical monitoring measures; − decision of holders of TK to keep their knowledge secret; − requirement of a precontrol of the publication of research results, postponing publication and thus putting at risk the success of the research.

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Governance options for ex-situ collections in academic research 219 Accordingly, researchers are willing to agree to any contract prohibiting the commercialization of the resources they are interested in. Yet they are only able to monitor their utilization as long as they are under their direct control. Once the resources are stored in an ex-situ facility, it is no longer possible to personally meet this obligation. This pinpoints the dilemma that ultimately consists in a problem of control. We argue that it is urgent to find pragmatic answers to this access-control dilemma. As the debate in the field is highly politicized, we propose to strive for practical solutions: solutions that are adapted to the respective needs and concerns of the involved stakeholders and parties that do not create additional administrative burden and are effective (lowest cost, highest effect) and that lead to a result within a reasonable time frame. Under a governance approach, the question is what would be the optimal structures, instruments and mechanisms to govern ex-situ collections for academic research under ABS principles, serving the interests of both providers and users of GR and GR-TK. The strategic question is whether to opt for a uniform solution, for instance in connection to the negotiations on Article 10 NP, or for a bottom-up process, leaving the initiative to the networks of ex-situ collections.

Case studies After the CBD’s adoption, public ex-situ collections became aware of their potential problems with regard to the CBD’s ABS principles. A series of instruments and systems was created to answer to the respective requirements. In the following, we analyse three cases of ex-situ collections that aim to resolve the access-control dilemma. We will present them with a focus on the previously identified ‘hot’ issues that are: 1) facilitating access and exchange for research; 2) handling of pre– and post–CBD/NP accessions; and 3) measures at the interface of non-commercial and commercial research to assure the sharing of benefits. This will be followed by an analysis of relevant commonalities and divergences. The Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture The most prominent example answering to the access-control–benefit-sharing challenge is the Multilateral System of Access and Benefit Sharing of the ITPGR. The Multilateral System operationalizes the ABS system for plant genetic resources for food and agriculture. The adoption of the ITPGR in 2001 marks the end of a long development shaped by progress in science and breeding and subsequent controversies about open access and enclosure (Biber-Klemm 2011). The ITPGR is a ‘specialized ABS instrument’ in accordance with Article 4 NP addressing the specifics of crop breeding (ITPGR, preamble and Art. 1). In our context, the treaty is of interest because it facilitates access to—and consequently exchange of—ex-situ resources, includes access for R&D in a commercial context and provides a specific system of benefit sharing that is decoupled

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from access—the Multilateral System. The Multilateral System aims to resolve the dilemma between facilitating access and sharing of benefits. It finds its rationale in the need for easy access to and the sharing of GR at the local, regional and global levels in order to advance breeding programmes. Restrictions of access to genetic diversity would jeopardize food security (Cooper et al. 1994). The Multilateral System covers a set of crop varieties selected and agreed upon by the contracting parties according to the criteria of food security and interdependence. It includes those accessions that are under management and control of the contracting parties and in the public domain. In particular, all ex-situ facilities of the International Agricultural Research Centres of the Consultative Group on International Agricultural Research are included in the system (Art. 11 ITPGR; Scarascia-Mugnozza and Perrino 2002). The system facilitates access for the contracting parties and for legal and natural persons under their jurisdiction. Access is to be granted for the purpose of utilization and conservation for research, breeding and training for food and agriculture. Explicitly excluded are chemical, pharmaceutical and/or other non-food/ feed industrial uses (Art. 12.3). Within the Multilateral System, access is possible without need to track the origin of individual accessions. This means that there is no need to go back to the original source of the sample for prior informed consent (PIC) and mutually agreed terms (MAT), even if the samples are to be used for breeding for commercial ends. Conditions for utilization are framed in Article 12 of the ITPGR and implemented in a standard material transfer agreement (SMTA). The sharing of monetary and non-monetary benefits is decoupled from access (see Kamau and Winter 2009). Free access to the ex-situ collections is considered a major non-monetary benefit. In the case of commercialization, monetary benefits are shared via a Benefit-Sharing Fund. The contribution is obligatory if the product that contains the accessed resource is patented and therefore taken out of the public domain. The Fund invests in high-impact projects supporting farmers in developing countries to conserve crop diversity in their fields and assisting farmers and breeders globally to adapt crops to changing needs and demands.3 The SMTA establishes a continuous chain of agreements between subsequent recipients. This system ensures that the benefit-sharing obligations of the ITPGR are passed onto any person or entity that develops a product (i.e. seeds) derived from the Multilateral System. Tracking through the chain of transfers under the SMTA is (theoretically) assured by notification obligations of the recipients of the accessions. As the SMTA is a bilateral contract, compliance is to be monitored by the contractual partners, that is, the ex-situ facilities. This control of compliance is relatively weak (see also Chiarolla and Jungcurt 2011: 56 and section on ‘The case studies analysed’ below). The International Plant Exchange Network (IPEN) The International Plant Exchange Network (IPEN) is a voluntary registration system for non-commercial exchange of plant material between botanic gardens

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Governance options for ex-situ collections in academic research 221 based on the CBD. It is a closed network that allows tracking of the included plant material throughout the system. It was developed by the Verband Botanischer Gärten (an association of gardens in German-speaking countries) and taken over by the European Consortium of Botanic Gardens. As of 4 February 2013, 155 gardens are registered, almost all of them situated in Europe.4 The network aims at implementing the ABS principles for botanic gardens and creating a climate of confidence between providers—frequently countries of the South—and the gardens in order to facilitate access in the country of origin. IPEN facilitates exchange of living plant material, including parts of plants, between the member gardens for display, education, rising public awareness, scientific research and conservation activities. In order to build trust and to control the movements of the material, it features three instruments: (1) a common policy, defined in a code of conduct, to which participating gardens have to adhere; (2) a documentation system that allows tracking of the resources and their derivatives within the network; and (3) a uniform material transfer agreement (MTA) for material leaving the system. The Code of Conduct sets out the responsibilities for acquisition, maintenance and supply of living plant material and associated benefit sharing in accordance with the CBD’s ABS system. For instance, only plant material that has been acquired in accordance with the provisions of the CBD can be accepted. If material is acquired in situ, the PIC of the providing country has to be obtained. The inclusion of pre– CBD material is recommended.5 The tracking of the resources is made possible by two types of documentation: First, the garden that introduces plant material into IPEN has to keep documentation recording all relevant information about the plant accession, such as taxonomic data, type of material, source, permits related to the acquisition and any conditions or terms of the country of origin. This garden also has to provide the accession with the IPEN number, a numerical code that allows identification of the garden keeping the first documentation, the country of origin and the existence of any restrictions of use by the provider. This number—the second type of documentation—follows the material through all exchanges within IPEN. The principles on ABS and their implementation at the Royal Botanic Gardens, Kew In contrast to the first two examples that have an institutional character, the Principles on Access to Genetic Resources and Benefit-Sharing offer a procedural approach that is based on an internationally tested framework (Latorre et al. 2001). This approach allows adaptation to the specifics of the particular institution and its types of resources and uses, coverage of the entire research chain including potential commercialization and responding to changing situations. The Principles have been endorsed by a globally diverse range of gardens.6 The Principles have been developed in a pilot project involving 28 botanical institutions from 21 gardens worldwide and provide a one-page framework that covers acquisition, curation, use and supply of GR, use of written agreements and benefit sharing. They require gardens to develop and communicate an institutional policy setting about how they will implement the Principles. Further,

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since gardens may be involved in some commercial activities, the Principles require that they prepare a transparent policy on the commercialization (including plant sales) of GR acquired before and since the CBD entered into force and their derivatives. The Royal Botanic Gardens, or ‘Kew’, uses the Principles as the framework for its current ABS policy.7 In Kew’s implementation, three generalizable steps stand out: (1) doing a ‘CBD audit’—establishing precisely what Kew holds and does—to build a realistic policy; (2) raising staff awareness across the institution via involvement and training; and importantly (3) establishing a centre for ABS knowledge and advice, a CBD Unit. In this setting, Kew developed appropriate policies, strategies, mechanisms and instruments. First, it focuses its international efforts on longer-term partnerships with in-country institutions, formalized in written agreements that set out the terms of the collaborations and the use of the material, corresponding to the nature of the partnership. All agreements are centrally registered so that benefit-sharing expectations can be known and met. Second, an Overseas Fieldwork Committee centralizes fieldwork approval to ensure that Kew acquires material from in-situ sources legally and ethically. Committee approval requires staff and associates to show that they are working with partners and getting appropriate PIC and MAT, including benefit sharing. Copies of permits are deposited with the CBD Unit and obligations are noted. Third, in addition to partnership agreements, Kew uses a range of standard documents (material supply agreements for transfer to third parties, a letter for potential providers setting out standard uses, for PIC; a letter for donors to establish material is legal). Owing to huge specimen flows, especially in the herbarium, Kew imposes standard terms on material (e.g. non-commercialization). Providers are asked to agree to those terms before herbarium material is accepted into Kew. Certain restrictions (e.g. no transfer) can be noted on labels and in databases, but if material comes with restrictions that would overly restrict access at Kew or require PIC or reporting for all uses of the material, it must usually be declined. The (unstated) goal of these efforts has been to ensure that Kew can build and keep its partners’ trust and continue to be a global leader in plant science and conservation. Although Kew’s proactive ABS approach was initially perceived by many inside and outside Kew to be cumbersome and costly, its leadership in coordinating the pilot project that produced the Principles on ABS and its development of capacity-building tools for ex-situ institutions (Williams et al. 2009) has helped to gain recognition and trust. The case studies analysed The question guiding the case studies was whether they offer common elements to answer the access-control dilemma that can be combined into a uniform solution within the ABS of the CBD/NP. In comparison, commonalities and divergences of the cases appear. First, the rationale in all three cases is to assure the functionality of the ex-situ collections for research, in particular to facilitate access and exchange. Whereas the Multilateral System has its focus on the latter, the two

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Governance options for ex-situ collections in academic research 223 botanical garden examples strongly focus on building trust vis-à-vis the providers through promoting transparency and permitting (some) control. Second, the systems are linked to institutions and based on a defined framework. Yet the institutions also differ in important respects. The Multilateral System is based on an international treaty. In contrast, the systems of the public ex-situ collections operate on the basis of common principles or guidelines to be adopted by adhering collections. Third, both the ITPGR and the IPEN system are limited in scope. Whereas the Multilateral System (MS) covers selected varieties of plant genetic resources agreed upon by the parties, IPEN only covers non-commercial exchange of living material within the network of adhering gardens (primarily in Europe), whereas the procedural approach of the Kew Principles is flexible in this regard. Fourth, all systems provide for standards to address the dilemma between easy access and exchange and the control of a possible transition into commercial use. These standards are defined in a code of conduct (IPEN) or material transfer agreements (Multilateral System and Kew). They take up the ‘ABS-sensitive’ aspects of ex-situ collections, define responsibilities of participating entities and include mechanisms aiming at assuring benefit sharing in the case of commercialization. For instance, they require proof of legal access to the material to be integrated in the collection and the transfer of data between users within the system. They define the permitted utilization within the system and prescribe measures and responsibilities in case of resources leaving the system (non-commercialization; commercialization with PIC; commercialization and benefit sharing). Yet they also share a weak point: The conditions regarding the utilization of the resources, including the conditions regarding a possible commercial use, are laid down in the MTAs. The control of compliance is a priori based on these bilateral contracts only and therefore is the responsibility of the providing collection. In the case of the SMTA of the Multilateral System, further obligations regarding further actions of the recipient are explicitly excluded (Art. 6.4). This means that the problem of control, pointed out previously for the researchers transferring specimens to ex-situ facilities, extends to transfers of material stored in ex-situ facilities that are based on bilateral contractual agreements. Neither researchers nor ex-situ facilities possess the capacities required to follow up on each contract. To summarize, whereas the systems show commonalities regarding the goal to resolve the access-control dilemma, the operationalization differs in important elements. The ITPGR operates a system of open exchange for specified types of utilization (including commercialization) of a limited/defined number of resources that is linked to a decoupled benefit-sharing system. IPEN consists of a closed pool with a stringent tracking system for a certain type of resources. In the third case, a procedural approach is chosen that is defined by principles agreed upon by the participants. The differences between the systems are due to: (1) the types of resources covered; (2) the relevant characteristics of the research carried out (compare Biber-Klemm et al. 2010) and (3) the variety of types of collections and of the institutions and organizations hosting them.

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Options for ABS governance of ex-situ collections For academic non-commercial research, the need for transparency and cooperation within a peer network and the general scarcity of financial and time resources leads to a vision of free access and exchange within the world of academic science while sharing with providers the non-monetary benefits that accrue in academic research. In addition, the sharing of potential economic benefits could be assured via a decoupled funding mechanism. Such a system would ease access and exchange within the group, lower transaction costs and facilitate research that is important for the conservation of biological diversity (Kamau and Winter 2009). The question is whether, in the process of implementing the NP, there is the potential for creating such a system within a reasonable time frame. We propose to test this vision against relevant options offered by the NP: the development and implementation of specialized ABS-agreements (Art. 4.2), the negotiation of a Global Multilateral Benefit Sharing Mechanism (Art. 10), the possibility of the creation of sectorial and cross-sectorial model contractual clauses for Mutually Agreed Terms (Art. 19) and the development of codes of conduct, guidelines and best practices with the option of their adoption by the conference of the parties (Art. 20). The first two options ultimately require consensus of the state parties involved. The other two allow for sectorial, bottom-up initiatives by non-governmental entities that may be taken up at the global, political level at a later stage. The top-down centralized approach The two centralized options—the development of a specialized agreement and the Global Mechanism—draw heavily upon the example of the ITPGR and its Multilateral System. It is important to note, however, that in the case of the ITPGR, a strong coalition existed that advocated a uniform solution (Biber-Klemm 2011). In the case of public ex-situ collections, no such lobby exists, but there are a variety of different positions and perspectives: Even if non-commercial research appears as a global stakeholder group with a common interest in free access and exchange, the research community, as a stakeholder group, is itself fragmented. Moreover, the different types of collections may (or may not) have found solutions that are adapted to their specific types of resources and research. And last, the user–provider dichotomy includes different opinions regarding temporal scope. Consequently, the interest of the international community of states to take up the issue is small to non-existent. This diagnosis makes the conclusions of a specialized agreement for all ex-situ collections very unlikely. As regards the Global Mechanism, the question of ex-situ collections will resurface.8 Therefore, and notwithstanding the previous diagnosis, it can be tested whether this mechanism could serve to create a uniform solution for ex-situ collections. A first question is what options the Global Mechanism offers to share benefits resulting from the use of resources accessed (for commercial R&D) in ex-situ collections. According to Article 10 NP, the goal of the Mechanism would be to

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Governance options for ex-situ collections in academic research 225 assure the sharing of (monetary) benefits in cases in which no PIC is possible (or in transboundary situations). With regard to ex-situ collections, this would apply to resources or TK accessed post–CBD/NP in situ for non-commercial purposes only that either cannot be tracked back (orphaned resources) or for which no agency to give PIC and to renegotiate MAT for commercial use could be found within a reasonable time span. If the NP is implemented, both situations should occur only exceptionally; the Global Mechanism could here serve as a fallback solution. If the concept of ‘new use’ (i.e. access to resources stored for non-commercial scientific purposes for commercially oriented R&D; see section on ‘Debates regarding ex-situ collections’ above) is accepted, such a system could also be applied to resources or TK accessed in situ pre–CBD/NP. If we deviate from the analysis de lege lata, we take note that in practice there are ex-situ collections that—in order to ease administrative procedures and for ethical reasons—do not differentiate between pre– and post–CBD/NP accessions regarding conditions for external access. In these cases, a moral duty for sharing benefits could be postulated by the holders of the collections. To ease procedures and save transaction costs, this issue could be solved via contributions to a funding system under Article 10 NP analogous to the Multilateral System. Going one step further, setting out from the idea that commercial use generates benefits and therefore should be fostered, the Global Mechanism could be used as a pool solution for a decoupled benefit-sharing mechanism for commercial use of GR accessed in public ex-situ collections. To this end, the Global Mechanism might be combined with creating uniform MAT under Article 19.1 NP for access in-situ and ex-situ for non-commercial research purposes. Such a contract would have to contain clauses permitting storage in ex-situ collections, free access and exchange within the scientific community and—in cases of successful commercial R&D—guarantee of decoupled benefit sharing. However, this solution goes against the wording of the NP and would imply changing the scope of Article 10 that targets GRs for which it is not possible to obtain prior informed consent (and GRs in transboundary situations), and therefore the doubts regarding consensus are similar to those expressed in discussing the option of a sectorial agreement. In addition, we must take into account that Article 10 is a relatively vague concept. Negotiations—if they ever lead to results—will take a long time. Nevertheless, it will be important for public ex-situ collections to voice their positions, flexibilities and concerns (in particular as regards temporal scope and access for commercial ends) in these debates. This might provide a starting point for common solutions. In conclusion, a uniform, centralized top-down approach is difficult. One reason is that the different types and needs of collections and the fragmentation within the academic community might make it difficult to define and implement any such special regime. Moreover, the political disagreements regarding temporal scope (see section on ‘Debates regarding ex-situ collections’ above), the ensuing access/ use debate and a reluctance to move away from the prevailing contract-based ABS system make a timely solution unlikely. Therefore, considering these criteria and

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taking account of the need to build trust in the non-commercial scientific practices now, this approach could not result in a solution within a reasonable timeframe— if it is feasible at all.

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Building on what is already there An alternative approach would be to set out from what already exists, building from the bottom up on the solutions found thus far. The potential for more global solutions could so be assessed in a process owned by the scientific community itself. The aim would be to first examine, in a North-South cooperation, resource-, research- and institution-type specific solutions. Such endeavours would nevertheless have to keep in mind the need to demarcate common ground and to define general principles. Such an approach has several advantages: First, it allows the creation of solutions that are adapted to the different types and needs of collections. This approach could allow us to determine whether a uniform solution for all ex-situ collections is possible or, alternatively, which types of resources/categories of ex-situ collections could join together to elaborate common instruments. Second, in order to build trust, results of a cooperative approach within the scientific community/communities involving organizations and facilities of both industrialized and developing countries and outside the formal negotiation process might prove beneficial for a possible later political discussion. Third, this approach allows for different initiatives by different actors—one institution on a local or regional level (e.g. Kew) or a network of specific types of institutions—to be ultimately taken up by related organizations at a global level (e.g. Botanic Gardens Conservation International, the World Federation of Culture Collections, International Council of Museums’ Committee for Collections and Museums of Natural History). As the NP offers options to take up such bottom-up initiatives in its Articles 19 and 20, the results of such initiatives could ultimately be fed into the process of implementation of the NP, perhaps leading to uniform model contractual clauses or codes of conduct, or to the agreement on general principles for public noncommercial ex-situ collections.

Conclusions Our goal in this chapter was to assess whether the recently adopted NP offers a framework for the creation of a uniform instrument to resolve the conflicting interests of ABS stakeholders regarding public ex-situ collections in order to accommodate the common interest in research for biodiversity conservation. In the sense of a hypothesis, we proposed the creation of a ‘pool’ solution in connection with the realization of a Global Multilateral Benefit Sharing Mechanism. The question led to the definition of criteria: The instrument would have to take up needs and concerns of the involved stakeholders, and it must be cost effective and capable

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Governance options for ex-situ collections in academic research 227 of integration into the NP framework. With respect to the first criterion, we examined the access-control dilemma, consisting on the one hand of the prerequisite of easy access to resources stored in ex-situ collections for academic biodiversity research and on the other hand of the needs of the providers to control the flow of the resources through the information and value chain. We conclude that a top-down fully fledged solution covering all public exsitu collections will be out of reach within any reasonable time frame due to lack of lobbying power on the side of the academic community and difficulties in finding a consensus within the NP. At the level of the NP, the issue of ex-situ resources is closely linked to ‘hot’ political issues such as the questions of the temporal scope of the protocol and instruments to assure control of misappropriation/compliance. At the same time, ex-situ collections do not form a homogenous body but are highly diverse as regards the resources stored, their institutional setting and research conducted. Consequently, their ABS relevance may differ. Moreover, the international academic community in itself has little political coherence. We furthermore conclude that a bottom-up approach that builds on what is already there holds promise. In spite of the highlighted differences between public ex-situ collections, the analysis of three case studies dealing with plant GR revealed some commonalities, especially in the search for solutions for the non-commercial/commercial tension. To this end, all have institutionalized a type-specific framework that defines conditions for use operationalized in respective standard MTAs and via institution-internal responsibilities. Thus there is potential to define a minimal common denominator, as regards, for example, the interests involved, principles adopted and possible mechanisms governing the non-commercialcommercial interface. Such common ground and common principles might eventually result in a common standard/set of guidelines/code of conduct that could be officially adopted under NP Article 20.2. Thus, the approach would be complemented by a top-down political process at the level of the NP, flagging minimum requirements regarding, for example, control measures and temporal scope. This conclusion does not mean that in our view, an involvement of the academic stakeholders, in particular ex-situ collections, in the present debates on the implementation of the NP can be foregone. We submit that their technical and practical expertise is needed as a factual background for the political debates, in particular on the Global Multilateral Benefit Sharing Mechanism; in turn, these debates could form a platform for the aforementioned political process. We end by flagging the importance of trust building evoked throughout the chapter. It has been demonstrated that public ex-situ collections as partners in ABS-relevant exchange of GRs have limited means to control subsequent utilization of the material. MTAs are private-law contracts; and so it should be in the competence and responsibility of the ex-situ collection providing the resource to

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control conformity with the conditions of the MTA by the user. Yet, as is also the case for provider countries, the capacities of the collections do not allow them to follow up on each contract. This leads us to underline the importance of establishing measures to control the non-commercial/commercial interface in the national implementation of the NP (such as checkpoints in case of commercialization, patent application or application for admission to the market) in order to take pressure off non-commercial research and ex-situ collections.

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Notes 1 Compare the early examples, in particular the InBio Merck case, in Cabrera Medaglia (2004). 2 Among others flagged by the UN declaration on the New International Economic Order; compare Biber-Klemm (2008). 3 See http://www.planttreaty.org/node/3072 (accessed 14 February 2013). 4 See http://www.bgci.org/resources/ipen/ (accessed 14 February 2013). 5 See IPEN’s Code of Conduct, http://www.bgci.org/resources/Criteria_for_IPEN_mem bership_and_registration/ (accessed 14 February 2013). 6 See www.kew.org/conservation/endorsements.html (accessed 17 March 2013). 7 See Kew’s ‘Policy on Access to Genetic Resources and Benefit-Sharing’, www.kew.org/ conservation/docs/ABSPolicy.pdf (accessed 14 February 2013). 8 See CBD (2012); Earth Negotiations Bulletin (2012).

Bibliography Barrett, K. and Bannister, K. (2010) ‘Challenging the Status Quo in Ethnobotany: A New Paradigm for Publication May Protect Cultural Knowledge and Traditional Resourc[es]’, Cultural Survival Quarterly Issue 24(4): 10–13, http://www.culturalsurvival.org/publi cations/cultural-survival-quarterly/none/challenging-status-quo-ethnobotany-new-para digm-public (accessed 2 March 2013). Biber-Klemm, S. (2008) ‘Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits Resulting from Their Use—the Challenges of a New Concept’, Environmental Law Network International (ELNI) Review 1(8): 12–18. Biber-Klemm, S. (2011) Livestock Keepers’ Rights. NCCR Trade Regulation Working Paper 2011/68, http://www.wti.org/fileadmin/user_upload/nccr-trade.ch/wp3/3.5/Work ing%20paper%202011%2068%20-%20Pdf.pdf (accessed 2 March 2013). Biber-Klemm, S., Martinez, S.I. and Jacob, A. (2010) Access to Genetic Resources and Sharing of Benefits—ABS Program 2003–2010, Bern, Switzerland: Swiss Academy of Sciences, http://abs.scnat.ch/downloads/documents/ABS_Report2003-2010_SCNAT_ web.pdf (accessed 18 February 2013). Buck, M. and Hamilton, C. (2011) ‘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’, Review of European Community and International Environmental Law 20(1): 47–61. Cabrera Medaglia, J. (2004) Biodiversity for (Bio)Technology under the Convention on Biological Diversity: Bioprospecting Partnership in Practice. IP Strategy Today, No. 11, New York: Biodevelopments, http://www.biopirateria.org/otrosdocs/04-b-%20IP%20 Strategy.pdf (accessed 18 February 2013).

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Governance options for ex-situ collections in academic research 229 CBD (1998) Report of the Fourth Conference of the Parties to the Convention on Biological Diversity, UN doc. UNEP/CBD/COP/4/27, 15 June 1998, Convention on Biological Diversity. CBD (2007) ‘Guide to the Global Taxonomy Initiative’, Technical Series No. 30, Montreal: Convention on Biological Diversity. CBD (2012) Synthesis of Views with Respect to the Need for and Modalities of a Global Multilateral Benefit Sharing Mechanism (Article 10) Note by the Executive Secretary, UN doc. UNEP/CBD/ICNP/2/7, 2 March 2012. Chiarolla, C. and Jungcurt, S. (2011) Outstanding Issues on Access and Benefit Sharing under the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture, Background Study Paper, Zürich and Oslo: Berne Declaration and Utviklingsfondet. Cooper, D., Engels, J. and Frison, E. (1994) ‘A Multilateral System for Plant Genetic Resources: Imperatives, Achievements and Challenges’, Issues in Genetic Resources 2, May 1994, Rome: International Plant Genetic Resources Institute. Dutfield, G. (2006) Protecting Traditional Knowledge: Pathways to the Future, ICTSD Programme on IPRs and Sustainable Development, Issue Paper No. 16, June 2006, Geneva: International Centre for Sustainable Development. European Science Foundation (ed.) (2000) Good Scientific Practice in Research and Scholarship, European Science Foundation Policy Briefing, www.efs.org/fileadmin/Public_ documents/Publications/ESPB10.pdf (accessed 10 October 2012). Kamau, E.C., Fedder, B. and Winter, G. (2010) ‘The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: What Is New and What Are the Implications for Provider and User Countries and the Scientific Community?’ Law, Environment and Development Journal 6(3): 246–262. Kamau, E.C. and Winter, G. (eds.) (2009) Genetic Resources, Traditional Knowledge and the Law: Solutions for Access and Benefit Sharing, London: Earthscan. Latorre, G.F., Williams, C., Ten Kate, K. and Cheyne, P. (2001) Results of the Pilot Project for Botanic Gardens: Principles on Access to Genetic Resources and Benefit-Sharing, Common Policy Guidelines to Assist with Their Implementation and Explanatory Text, Kew, UK: Royal Botanic Gardens, www.bgci.org/resources/abs_principles/ (accessed 2 March 2013). Martinez, S.I. and Biber-Klemm, S. (2010) ‘Scientists—Take Action for Access to Biodiversity’, Current Opinion in Environmental Sustainability (2): 1–7. Meienberg, F. and von Weizsäcker, C. (2010) ‘Will We Share the Biggest Part of the Benefits?’, Third World Resurgence No. 242/243: 16–25, October-November 2010, http:// www.twnside.org.sg/title2/resurgence/2010/242-243/cover02.htm (accessed 10 October 2012). Nijar, G.S. (2011a) The Nagoya Protocol on Access and Benefit Sharing: An Analysis, CEBLAW Brief, Kuala Lumpur, Malaysia: Centre of Excellence for Biodiversity Law (CEBLAW). Nijar, G.S. (2011b) The Nagoya Protocol on Access and Benefit Sharing: Analysis and Implementation Options for Developing Countries, South Centre Research Paper 36, Geneva: South Centre. OECD (2001) ‘Biological Resource Centres: Underpinning the Future of Life Sciences and Biotechnology’, Science and Technology Series, Paris: Organization for Economic Cooperation and Development. Palladino, P. (1993) ‘Between Craft and Science: Plant Breeding, Mendelian Genetics, and British Universities, 1900–1920s’, Technology and Culture 34(2): 300–323.

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Salathé, M. (ed.) (2008) Integrity in Scientific Research—Principles and Procedures, Bern: Swiss Academies of Arts and Sciences. Scarascia-Mugnozza, G.T. and Perrino, P. (2002) ‘The History of ex-situ Conservation and Use of Plant Genetic Resources’, in Engels, J.M.M., Ramanatha Rao, V., Brown, A.H.D. and Jackson, M.T. (eds.) (2002) Managing Plant Genetic Diversity, Oxon, UK, and New York: CABI Publishing, 1–22. Thomson, K.S. (2003) Treasures on Earth: Museums, Collections, and Paradoxes, London: Faber and Faber. Williams, C., Davis, K., Cheyne, P. and Ali, N. (2009) The CBD for Botanists: A Guide to the Convention on Biological Diversity for People Working with Botanical Collections, Kew, UK: Royal Botanic Gardens, www.kew.org/data/cbdbotanists.html (accessed 17 March 2013).

13 Conclusions

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An assessment of global governance of genetic resources after the Nagoya Protocol Sebastian Oberthür and G. Kristin Rosendal Introduction Our aim in this book has been to take stock of the status and assess the prospects of global governance of access to and benefit sharing from genetic resources (ABS) after the 2010 Nagoya Protocol (NP) to the Convention on Biological Diversity (CBD). We have approached this theme in terms of ‘architecture’ and ‘agency’ along the lines of the science plan of the Earth System Governance Project (Biermann et al. 2009). Placing ABS within global environmental governance, we asked to what extent and how ABS governance is typical or special. With regard to actors and actor constellations as well as architecture, we examined the evolution over time and asked to what extent the picture is one of stability or change. A central question has also been whether and how the evolving structure of global ABS governance may contribute to a sustainable resolution of the ABS issue and, thereby, more effective conservation of biological diversity. In this concluding chapter, we aim to synthesize the findings of this volume by discussing the state of global ABS governance after the Nagoya Protocol in three steps. First, we discuss the main findings of the volume as regards key actors and coalitions. Second, we review the post–Nagoya architecture of global ABS governance. Third, we explore the relationship of ABS governance and biodiversity conservation and thus the environmental dimension of this area of global governance.

Key actors and coalitions Our volume suggests that actors and actor constellations in global ABS governance share many commonalities with those in other issue areas of global environmental governance while also displaying a few less common/specific features. We discuss in the following: the continuing trend towards multipolarity and the disintegration of the developing world, the absence of the US, the role of the EU, the significance of small actors and the role of nonstate actors. Developing countries: Disintegration and differentiation State coalitions in ABS governance in general and as regards developing countries in particular seem to reflect a trend towards increasing multipolarity that also

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characterizes other areas of global environmental politics. In ABS governance, the increasing multipolarity especially comes to the fore through an apparent disintegration and diversification of the developing world. During the CBD negotiations in the late 1980s and the early 1990s as well as during the early years of the CBD, developing countries held a united position presented by the ‘Group of 77’ (G-77), including on ABS (e.g. Rosendal 2000). In contrast, the G-77 was virtually absent from the negotiations on the NP in which developing countries rather pursued their interests in a number of regional groupings, including the Like-Minded Megadiverse Countries (LMMC), the Like-Minded Asia-Pacific Countries (LMAPC), the Group of Latin American and Caribbean Countries (GRULAC) and the African Group (Wallbott et al., this volume; Wallbott, this volume). This trend of the diversification and disintegration of the G-77 mirrors similar trends in other areas of global environmental politics, with climate change providing a flagship example. It is also noteworthy that, as in other areas, differentiation of developing countries follows a slightly different pattern than that of industrialized countries in that concurrent membership in several subgroups seems to be rather common and accepted. For example, members of the LMMC commonly also were members of regional groupings. These regional groupings have provided a focal point of developing-country coalitions in recent ABS governance. This pattern seems to contrast somewhat the diversification of developing-country coalitions in climate governance (including least-developed countries, emerging economies etc.) that seems to be more inspired by commonalities of economic interests. It may reflect the fact that, while economic differences (measured in terms of patent applications) between developing countries have been emerging to some extent as regards biotechnology, these have so far remained small when compared to the enormous gulf between industrialized and developing countries in this field (van Beuzekom and Arundel 2009). Under these circumstances, one may wonder what has driven the differentiation and disintegration of the G-77 in global ABS governance. As the chapter by Wallbott and colleagues vividly demonstrates, the large variety of developing-country coalitions in the Nagoya process stands in stark contrast with the relatively large overlap of their interests, especially when compared with the different groups of industrialized countries. On the central issues of bindingness, user-country measures, scope and access standards, there was very little variance between developing countries. In this perspective, the disintegration of the G-77 in the Nagoya process may rather be a reflection of more general trends of diversification among developing countries in global (environmental) politics than of sharp differences of interests between them in this specific field. A related question concerns whether pursuing their interests through various (regional) groupings rather than jointly through the G-77 weakened developing countries overall in the Nagoya process. On the one side, a look into the history of global biodiversity politics may suggest an affirmative answer. In the 1990s, the G-77 acting united was judged to be very successful in negotiating multilateral environmental agreements in general (Miller 1995; Najam 2005; Williams 2005) and the CBD in particular (Rosendal 2000). In contrast, the African Group

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(Wallbott, this volume) and other developing-country groupings (Wallbott et al., this volume) can hardly be considered to have been very successful as regards the NP. Instead, as the chapter by Wallbott and colleagues in this volume convincingly demonstrates, the Protocol appears to reflect to a rather large degree the preferences of ‘moderate’ developed countries such as the EU (Oberthür and Rabitz, this volume) and Switzerland (Hufty et al., this volume). On the other side, it remains unclear or questionable whether, how and to what extent the counterfactual scenario of more G-77 unity could have delivered a more favourable result. In particular, there was hardly any carrot (or stick) available to induce developed countries to accept markedly more ambitious and effective ABS measures. In the case of the negotiations on the CBD, the issue of ABS was linked to the issues of biodiversity conservation and sustainable use of its components, more attractive to developed countries. In Nagoya, this link also existed, but the NP was the only international treaty in the Nagoya package. It may thus seem questionable whether a united G-77 could have motivated developed countries to accept significant further concessions in exchange for agreement on the Strategic Plan for Biodiversity 2011–2020 with its 20 targets on the conservation and sustainable use of biodiversity as well as a Strategy for Resource Mobilization (a point on which the developing countries acted in a coordinated way anyway). At the same time, there are few signs that would suggest that the split of the G-77 worked much in favour of the developing countries or made them better equipped to achieve their common goals. Looking forward, the centrifugal forces of evolving economic interests are likely to grow stronger over the coming years also in the field of ABS governance. Biotechnology is on the rise in various emerging economies and likely to increasingly affect their interests. As a result, the clear juxtaposition between developing countries as providers of genetic resources (GR) (and associated traditional knowledge1) and industrialized countries as the users, which is already put into question by the existing diversification of coalitions, is likely to be further undermined in the future. The traditional North–South cleavage in ABS governance (e.g. Brand et al. 2008; Rosendal 2000) may thus be increasingly complemented and blurred by evolving economic interests, especially as regards more advanced developing countries. The role played by Brazil in the final negotiations in Nagoya—and the dissatisfaction with it on the side of less advanced developing countries—may be a first sign of this trend (Wallbott et al., this volume; Nijar 2011). The chapter by Rosendal and colleagues in this volume adds a further dimension by pointing to South–South gene flows (in aquaculture) that do not engender a North–South conflict but rather one between small-scale actors and multinational corporations. As a result, a more nuanced framing of actor constellations in global ABS governance may be required in future analyses. At the same time, the US and EU still hold the bulk of multinational corporations in both the pharmaceutical and food-oriented biotechnology sectors, which would suggest that the traditional North–South divide in ABS governance may not disappear anytime soon (Rosendal et al., this volume; as it may be here to stay also in more general: Najam 2011).

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Developed countries: The US and the EU ABS governance is one of several areas of global environmental governance characterized by nonparticipation of the US. The US was one of the driving forces behind efforts to elaborate a global agreement on biodiversity that resulted in the adoption of the CBD in 1992. However, the US advocated a convention focusing on nature preservation (together with major nongovernmental organizations and several European countries including France, Germany and the UK). That the US lost this battle and developing countries succeeded in including the objective of ‘fair and equitable benefit sharing’ in the CBD is a major reason the US has not ratified the Convention that otherwise has global coverage (with more than 190 parties). The US could not accept including genetic material and traditional knowledge in the CBD, as this made the case for reimbursing tropical countries for their contributions to agriculture (plant GR/seeds) and pharmacy (Rosendal 2000). Over time, the US appears to have increasingly distanced itself from the CBD, which creates challenges for both the US and global ABS governance. To be sure, the high threshold of a two-thirds majority in the US Senate required for the ratification of international treaties makes US participation in multilateral (environmental) agreements an uphill battle beyond ABS and biodiversity governance. Thus, the US has also not ratified several other global environmental agreements, including the three chemical conventions (Basel, Rotterdam, Stockholm; Andresen et al. 2012; DeSombre 2011). However, in some areas the US government displays a vivid interest in being involved by participating actively as an ‘observer’, including in the aforementioned chemical conventions; in other areas, the US more consistently distances itself from the relevant international agreement, as is most prominent in the case of the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC). The CBD and especially its ABS component seems to increasingly fall into this second category, with the US refraining from interfering in the negotiations on the NP in any formal way (even if the interests of its industry may have at times been reflected by other developed countries such as Australia). As in other areas of environmental policy, this poses obvious challenges to both: (1) global ABS governance since the US still possesses the strongest biotechnology industry worldwide, with a share of about 40 per cent of the global market, and (2) the US since significant policy developments affecting its industry occur without its direct participation. The absenteeism of the US also shaped the role of the EU and its member states (in the following referred to as the EU in aggregate) in the Nagoya process in important ways—not much unlike other issue areas in global environmental governance in which the US does not participate. First of all, as Oberthür and Rabitz show in this volume, it made the EU the single most important user country whose agreement was crucially required for any meaningful ABS Protocol. The EU held about half of the non–US market as regards biotechnology; without its cooperation, a Nagoya ABS Protocol would have remained without actual effect from the

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Conclusions 235 outset. At the same time, the EU also had to be vigilant not to introduce a burden on its industry that would cause a further relocation to the US, reinforcing rather ‘conservative’ EU interests. Overall, the issue area of ABS, and of biotechnology more broadly, may thus be said to reflect, on the user side, a rather traditional constellation in which the US and the EU together hold a much more dominant position (with a combined ‘market’ share of about two thirds)—a constellation that has declined elsewhere and may also be declining in this field. Under the circumstances, Nagoya does provide an example of effective EU influence contrasting the experience of EU failure at the Copenhagen climate summit in 2009. The EU was very much able to get what it wanted in Nagoya, even though its role did not exactly amount to ‘environmental leadership’ (Oberthür and Rabitz, this volume). Given its critical importance for the effectiveness of any ABS protocol, it may not be surprising that the EU played a crucial role in the negotiations, including during the end game in Nagoya (Wallbott et al., this volume). As a result, the NP respects the EU’s ‘red lines’, and the EU also achieved its other main goals in Nagoya: the Strategic Plan for Biodiversity 2011–2020 and the Strategy for Resource Mobilization. Against the backdrop of strong biotechnology interests in several EU member states and a lack of progressive domestic ABS legislation, EU external ABS policy, however, remained ‘conservative’ and thus hardly aimed at advancing the CBD’s benefit-sharing objective. At the same time, normative support for global environmental governance and the desire to move the broader CBD agenda forward drove the EU to soften its stance, which arguably enabled agreement on the NP. Overall, it might not be justified to label the EU as an ‘environmental leader’ in the Nagoya process, as it has been in other MEAs (e.g. Oberthür 2009). However, the progress that the NP does constitute would also hardly have been possible without the EU. As Oberthür and Rabitz argue, the achievements of the EU were not least based on the European Commission acting as a policy entrepreneur internally. It was at the initiative of, and guided by, the European Commission that the EU was able to align its self-interest with a bridge-builder role (together with Norway and Switzerland) trying to find common ground between the more conservative industrialised JUSCANZ (Japan, the US, Canada, Australia and New Zealand) countries (see also Burton 2013) and developing countries. It was this bridge-building role that eventually allowed the EU, Switzerland and Norway to realise most of their interests in the international negotiations. The role of the European Commission highlighted by Oberthür and Rabitz links to the broader literature on the scope for policy entrepreneurs in EU environmental policy making (e.g. Schreurs and Tiberghien 2007). Overall, the role of user countries has traditionally been and remained more varied in general in their approach to the ABS issue than that of developing countries. As the chapter by Wallbott and colleagues in this volume illustrates, the overlap between the positions of various developing countries’ groupings appears to be greater than that among different developed countries. As regards the latter, there have generally been significant differences in the willingness to accommodate developing-country demands, especially as regards user-country measures.

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Having said that, developed countries have shared a lack of genuine interest in a functioning ABS system.

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Small states and nonstate actors The two chapters on Switzerland (Hufty et al., this volume) and the African Group (Wallbott, this volume) illustrate how relatively small countries can make a difference in international negotiations. Both lacked the material resources to engage in ‘structural leadership’ but instead pursued the softer forms of ‘entrepreneurial’ and ‘intellectual leadership’ with some success from different angles (for a discussion of these different leadership categories, see, e.g., Grubb and Gupta 2000). Switzerland underpinned its intellectual and entrepreneurial role with a positioning as a ‘moderate’ industrialized user country (along with the EU and Norway): It possesses a significant biotechnological industry but was nevertheless willing to go some way to meeting the demands of developing provider countries. By occupying some kind of middle ground between hardliners on both sides—but most of all in comparison with the JUSCANZ group of ‘conservative’ industrialized countries—Switzerland was (along with the EU and Norway) able to play a bridge-building role that enhanced its credibility and helped it contribute to the shaping of the NP—as Hufty and colleagues argue, probably punching above its general weight in international relations. In contrast, the African Group was probably the most ambitious coalition, arguing forcefully for more effective benefit sharing. Given that positioning and the lack of a broader G-77 coalition, it may not be surprising that it succeeded much less in getting its views reflected, although it may still have shaped the Nagoya discussions and their outcome in important ways, as the chapter by Wallbott suggests. Nonstate actors had a limited role to play in the intergovernmental negotiations on the NP. The new treaty needed to be adopted by the parties to the CBD and thus focused attention on state governments, which remain major actors in global governance, especially where the latter relies on international treaties. Our main interest in the emergence of the NP thus almost automatically led us to focus on the role of states and their governments. Nevertheless, nonstate actors did participate in and affect the negotiations and their outcome. The chapter by Orsini allows us to specify the significance and contributions of nonstate actors in the Nagoya process. Interesting to note is the rather low level of participation of environmental interest groups in the negotiations, very much reflecting the rather indirect relationship of the ABS issue with the broader biodiversity agenda, as well as the lack of attention of mainstream environmental organizations to the issue. In contrast, the interests of indigenous and local communities (ILCs) have been strongly represented, which may be linked to the relatively strong outcomes as regards the issue of ‘traditional knowledge’ in the NP (Orsini, this volume). Nonstate actors primarily relied on advocacy and lobbying, but they also attempted to mobilize a wider audience. Reflecting the multi-institutional nature of global ABS governance (see below on architecture),

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several nonstate actors also pursued multifora strategies. It may be surprising that Orsini finds the advocates of ABS to have been more successful in affecting the outcome of the negotiations than the opponents. Orsini also finds, however, that especially the achievements of ILCs as regards traditional knowledge remain subject to national legislation. Overall, authority to decide on the NP—and the political responsibility for doing so—has clearly remained with states and their governments.

The post–Nagoya architecture of global ABS governance In the introductory chapter, we distinguished between the internal and external dimensions of governance architectures. Following this distinction, we discuss first the ‘interior design’ of the global system of ABS governance before exploring its multi-institutional external dimension. In both sections, we explore the situation pre–Nagoya and analyse to what extent this situation has changed with the NP. Subsequently, we discuss challenges and prospects of the overall system of ABS governance after the Nagoya Protocol, touching on both the internal and external dimensions. The interior design The CBD/NP provides a multilateral framework for how domestic legislative systems can be set up to govern contract-based exchanges of GR between providers and users of these resources. The system has remained stable since the CBD was established in 1992, although it has evolved over time. Until the 1980s, most GR were accessed free of charge. With (bio)technological developments and modifications of intellectual property right (IPR) systems, the resulting profits were increasingly appropriated by GR users (mainly from developed countries). The CBD, in its Preamble and Articles 3 and 15.1, acknowledged the sovereign rights of states over their natural resources and, in its Article 1, established ABS as one of its three objectives. Consequently, global ABS governance can be considered an attempt at designing a particular ‘payment for ecosystem services’ mechanism, using public law to provide for benefit sharing from the private sector: Users of GR would compensate providers for access to GR by sharing the benefits arising from their utilization. Importantly, concrete benefit-sharing arrangements were to be established and agreed upon by the individual market participants case by case. Consequently, the CBD determined, in its Article 15.4 and 15.7, that ABS shall be upon ‘mutually agreed terms’ (MAT), that is, as contractually agreed by both sides. As a safeguard, access was made dependent on the ‘prior informed consent’ (PIC) by the providers of GR (Art. 15.5 CBD). Given first promising existing examples of commercial exchanges of GR known as ‘bioprospecting agreements’, such a contract-based approach to ABS looked like the ideal way of ensuring that providers (mostly developing countries) could finally benefit from users’ profits (Wolff, this volume; Tvedt, this volume).

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On this basis, the ABS system constructed under the CBD has structured international ABS governance in a particular way that lies at the bottom of the challenge of making it work and achieving a ‘functional regime’ on this basis (Tvedt, this volume). In this respect, it is important to understand a number of peculiar characteristics of this governance mechanism as constructed under the CBD and further analysed in the chapters by Tvedt and Wolff in this volume. First, the GR transaction is in large part one involving public and private actors in structurally different roles. Thus, access is usually granted by public authorities in provider countries in accordance with public/administrative law. In contrast, benefits are commonly generated by private actors (biotechnology companies etc.) in user countries operating under private law. The ABS mechanism thus operates across a public–private divide and, in addition, across national boundaries. Second, the national sovereign rights of states to their GR bring with them that it is up to individual states to determine conditions for access. And third, the exchange relationship in the ABS transactions does not involve a well-defined unit that is traded (like a ton of carbon dioxide on the international emissions trading market), but the value of any GR accessed—and thus the benefit to be shared—evolves with research on and with the specifics of the utilization of the GR over time. As a result of these characteristics, effective implementation of ABS requirements involves and requires monitoring of compliance with and enforcement of national-law requirements determined by provider countries and of related contracts under private international law (‘mutually agreed terms’), within the legal systems of user countries. Under the circumstances, there are ample opportunities for private actors interested in the utilization of GR to circumvent and evade ABS requirements (Tvedt, this volume). While it is common that multilateral (environmental) agreements ultimately aim at regulating the behaviour of private (nonstate) actors, the particular approach and mix characterising ABS governance under the CBD does constitute a particular challenge in this respect in trying to regulate a transboundary exchange mechanism across the public–private divide. It may be traced back to the twofold roots of ABS in the belief in governments’ ability to regulate environmental issue areas (prominent when the CBD was negotiated) and the increasing prominence of private/ public partnerships (that grew as ABS governance was further developed in the 1990s and 2000s). This duality underpins the contested nature of the instrument, torn between a multilateral regime and one that is essentially bilateral and left to private actor contracts. Given these specific circumstances, it may not be surprising that ABS governance under the CBD remained deficient. On the side of provider countries, efforts to control the flow of GR led to a patchwork of access requirements emerging (if they emerged), which did not help facilitate ABS deals. This has fed concerns about ‘cumbersome’ access requirements that have traditionally formed the basis of complaints about such access requirements hampering scientific innovation, food security and even efforts to enhance sustainable development and conservation (Fowler 2001; Grajal 1999; Morgera et al. 2013; for the area of academic research, see also Biber-Klemm et al., this volume), which have also provided

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Conclusions 239 an important driving force for the elaboration of sectoral arrangements (see next section). Those concerned about cumbersome ABS legislation have focused on access as regards international regulation and its implementation (Morgera et al. 2013) while rarely subjecting IPR systems to similar critical review. However, deficiencies in implementation on the side of user countries has probably been a more important barrier to effective governance of GR. User countries failed to effectively implement benefit-sharing requirements into their national legal systems, and to the extent they did, actual implementation and enforcement remained deficient (CBD 2007; Tvedt and Young 2007). As a result, the cases of ‘biopiracy’ (i.e. the illegal access to and utilization of GR in circumvention or neglect of ABS requirements; see Mgbeoji 2006; Robinson 2010) probably outnumbered the cases of effective ABS deals (even though such an assessment remains guesswork because of a lack of information about such deals; see also Wolff, this volume). It is this deficiency in the actual operation of ABS governance under the CBD that nurtured and reinforced the demand for reform of the system by developing countries, especially a much-enhanced implementation in user countries. The NP attempts to further develop the basic ABS governance approach enshrined in the CBD by trying to address its deficiencies. Somewhat surprisingly, and probably reflecting international ABS politics that in every step involve a reconciliation of user and provider interests, the Protocol develops international access standards and related requirements much further so as to enhance transparency and legal certainty in this area in provider countries. In addition, the Protocol also aims to advance the implementation and enforcement of benefit sharing in user countries by introducing requirements (1) for control/monitoring of the utilization of GR and (2) for related legislation that should enhance possibilities for taking action to enforce ABS contracts under private law in user-country jurisdictions. It does not address the measure with the perhaps highest potential, namely mandatory disclosure requirements in patent applications. Overall, it very much remains within the existing system logic with its particular challenges and difficulties as regards implementation and enforcement of domestic legal requirements of provider countries in foreign jurisdictions of user countries. As the key for effective implementation of global ABS governance lies with those least interested, namely developed user countries, ensuring an effective operation of the system as elaborated through the NP remains a challenge (see Tvedt, this volume; see also section on ‘Challenges and prospects’ below). The evolving institutional complex of global ABS governance The ABS regime under the CBD has always formed part, and indeed the centre, of a broader institutional complex of global ABS governance. In accordance with the analysis by Oberthür and Pożarowska in this volume, we can distinguish three different subformations of this complex that raise different issues and challenges. First of all, ABS governance under the CBD has been involved in a geographical division of labour with the UN Convention on the Law of the Sea (UNCLOS) and the Antarctic Treaty system over benefit sharing as regards areas beyond national

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jurisdiction and Antarctica—areas that have largely been considered to be outside the scope of the ABS system of the CBD. Second, a sectoral division of labour has been emerging between the overarching CBD and sectoral institutions that devise specialised ABS systems, including the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR), the Food and Agriculture Organization of the United Nations (FAO) addressing plant GR for food and agriculture more broadly, and the World Health Organization (WHO) regarding human pathogens. Finally, and perhaps most importantly, attempts to establish a functional division of labour between the ABS regime under the CBD on the one side and the World Trade Organization (WTO) with its Agreement on Trade-Related Aspects of Intellectual Property (WTO-TRIPS) and the World Intellectual Property Organization (WIPO) on the other have revealed and reinforced tensions with these institutions. These tensions are based on the role WTO-TRIPS and WIPO (and the interests they represent) play in strengthening the hands of those who possess IPRs regarding GR in the overall ABS governance system. As a result, they have resisted attempts to accommodate benefit-sharing interests by adapting the IPR system through the introduction of a mandatory disclosure requirement. This evolving structure and interinstitutional division of work was unsuccessfully challenged by developing countries, in particular the African Group, in the negotiations on the NP. Developing countries were generally arguing for clearly establishing that the ABS regime under the CBD would not be subordinate but rather superior to other international institutions, although internal rifts existed in particular as regards the geographical and sectoral divisions of labour (see Wallbott et al., this volume). In any event, the African Group not only failed in its attempt to establish the superiority of the NP over other institutions, but the NP to the contrary seems to further deepen the existing divisions of labour: It in particular explicitly allows other international institutions to address ABS and, in doing so, even to preempt the NP as long as they operate in accordance with the ABS objectives of the CBD and the Protocol. Consequently, several ABS-related activities have occurred in other institutions of the institutional complex post–Nagoya, including under UNCLOS, the FAO and the WHO. These developments provide evidence for a trend towards a further deepening of the interinstitutional division of labour among the institutions involved ‘on the ground’: At least as regards the geographical and sectoral subformations of the governance architecture, further specialised agreements may be elaborated post–Nagoya. In contrast, the NP seems to have left the relationship and tension between the ABS regime under the CBD and IPR regulation under the WTO and WIPO less affected and largely unmitigated (Oberthür and Pożarowska, this volume). Challenges and prospects The probably single most important challenge of ABS governance cuts across the internal and external dimensions of governance and concerns the balance between users and providers of GR. In essence, on the one side, governments grant and

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Conclusions 241 guarantee IPRs to private actors. On this basis, relatively resource-rich IPR holders (in many cases big multinational companies originating in developed countries) can and do enforce their IPRs under private law in national courts, including as regards IPRs based on GR. This enforcement mechanism also works transnationally because the WTO-TRIPS Agreement internationalizes IPR standards and thus facilitates the enforcement of IPRs in other jurisdictions. On the other side, in contrast to patent holders, those with a claim to benefit sharing (developingcountry governments, ILCs) do not necessarily possess the resources to pursue these claims under the private law of foreign jurisdictions (see also Oberthür et al. 2011). Furthermore, ABS governance is similarly designed to be enforced under private law. However, international standards and structures do not facilitate such enforcement to the same extent as for IPRs; in particular, general substantive rules on access and benefit sharing are only internationally harmonized to a very limited extent, leaving much discretion to parties in implementation (which leads to the difficulty of enforcing foreign standards in user countries, which could be mitigated if these standards were international). The result is a persistent imbalance between providers and users of GR that has formed the core of the traditional North–South conflict on ABS and has been left largely unmitigated by the NP. The dynamics of economic and technological development as regards GR contribute further to the challenge of effective ABS governance. First, as pointed out by Tvedt and Schei in this volume, the science and technology that underlie the utilization of GR have made major and rapid advances over the past decades— and are likely to make further advances in the future. As a result, the subject of regulation is transforming, moving increasingly from GR as physical resources towards their informational content. While Tvedt and Schei argue that a dynamic understanding of the definition of GR in the CBD may be able to capture these developments, they also highlight that such a dynamic interpretation raises issues regarding legal certainty. Perhaps more importantly, these developments provide efforts to control the utilization of GR with a transforming target that may increasingly evade such controls. The challenge of ABS governance is furthermore exacerbated by economic developments in relevant sectors. Rosendal and colleagues point to structural changes in the aquaculture sector leading to fewer and larger companies and an increasing prominence of multinational corporations in the sector transforming and exacerbating the problem from one between users and providers from different countries to one between smaller and bigger actors. They also highlight that related issues do not only pertain to the GR in focus in the sector itself (e.g. fish) but also to related products and technologies (marker genes, vaccines, feed products and breeding methods). Others have confirmed that the growth and increasing dominance of multinational corporations is a more general trend in relevant biotechnology sectors (including agriculture, aquaculture and pharmaceuticals). As these corporations have the ability and resources to pursue wide patent protection and to evade ABS requirements (Louwaars et al. 2009), this trend further accentuates the aforementioned governance challenge arising from the imbalance between relevant actors.

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These challenges taken together raise the question whether the overall governance approach of the NP can be and will be effective. What would be required to make ABS governance work and to what extent can we expect substantial progress towards a fully functioning ABS governance system? We cannot provide a definitive answer here but can, on the basis of the contributions to this volume, identify the main bottlenecks and a number of suggestions for how to overcome or at least address them. To start with, our analysis of the main barriers to effective ABS governance above leads us to expect that the success of the NP will first and foremost depend on its effective implementation in and by developed user countries (rather than on full implementation of access standards in developing countries, which is, however, required in order for them to be able to seek enforcement in developed countries). The Protocol leaves a high degree of discretion as regards the implementation of user measures and the manner in which developed countries will fill these with life will be decisive for their effectiveness. Future processes under the Protocol such as the elaboration of a compliance mechanism under its Article 30 may further contribute to improvements in this respect over time. The establishment of a requirement for all countries to report on the ‘appropriate legal, administrative and policy measures’ they have taken to ensure compliance with ABS according to CBD Article 15.7 may also lead into that direction (as may specifications of monitoring and reporting requirements under Art. 29 NP). Effective implementation of the Protocol will furthermore require the provision of assistance by developed countries to developing countries that lack capacity to monitor bioprospecting deals, develop effective ABS legislation and take advantage of the new enforcement possibilities in developed countries (Tvedt, this volume; Oberthür et al. 2011). Moreover, defining the notion of access as when the genetic material is used could help advance the difficult issue of utilization. It is an open question whether this solution would be politically feasible and practicable, but it could ensure that changes in intention would be captured. If ABS is to be functional as an innovative mechanism to give value and create incentives for countries to conserve biodiversity, the incentives need to be built into the system. Probably the single measure with the most potential remains the introduction of a mandatory requirement for the disclosure of the origin or source of a GR (along with important accompanying information, especially regarding PIC and MAT) in patent applications, which has been a long-standing demand of developing countries. While they lost this battle in the negotiations on the NP, they have not necessarily lost the overall conflict. The issue remains on the table, especially in the WTO (and in WIPO), where developing countries have used the NP to renew and reinforce their demands (Oberthür and Pożarowska, this volume). If the disclosure requirement was introduced, it could support respect for ABS in important ways. Its exact effect would, however, depend on the more precise design of the disclosure requirement on a spectrum from soft (requirement without consequences for patentability) to hard (requirement for patentability; Kamau 2009). The challenges facing global ABS governance after the Nagoya Protocol and its uncertain effectiveness may raise the question of whether there are promising

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Conclusions 243 alternatives. Perhaps most prominently, managing GR as ‘common pool resources’ rather than as the property of countries has been suggested in the literature (Kamau and Winter 2013). This might suggest a more centralised multilateral governance system in which GR are jointly managed, benefits collected and the resulting resources used—rather than the delegation to individual exchange relationships in the current system. Niches of such a more multilateral management approach exist especially with respect to the ITPGR’s ‘multilateral system’. However, this system is struggling with important difficulties/limitations itself and still owes the proof that it can and will generate significant resources (Wolff, this volume). The WHO’s Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits, adopted in May 2011, constitutes a still somewhat different system but is too young to allow an assessment of its effectiveness. Thus, the jury on which approach is more or less effective is still out. At the same time, insights about the persistence of international institutions and the path dependency of their development would suggest that we may at best expect incremental change of the overall governance system. One important aspect of such incremental change with potentially far-reaching implications concerns the possible emergence of further sectoral and geographical arrangements. The NP has further opened the door for the elaboration of specialised arrangements. The aforementioned WHO framework already emerged on this basis (Wilke 2013). Discussions are underway especially within the FAO on GR for food and agriculture other than those covered by the ITPGR (as well as under UNCLOS for areas beyond national jurisdiction). Potential for the elaboration of special arrangements also exists under the NP itself with its Global Multilateral Benefit-Sharing Mechanism (Art. 10) and provisions enabling the elaboration of model contractual clauses (Art. 19) and codes of conduct, guidelines and best practices and/or standards (Art. 20). In this respect, Biber-Klemm and colleagues (this volume) argue that suitable arrangements for academic research first developed in a bottom-up approach outside the NP could eventually lead to recognition of common ground and principles under the NP (Art. 20). In general, specialised arrangements may allow parties to reflect the specific circumstances in particular sectors and areas. For example, the high interdependence of countries as regards seeds is arguably erasing the asymmetrical relationship between providers and users in this sector. However, the same may not necessarily be true for other sectors of GR for food and agriculture (GR in farm animals, forest trees, aquatic organisms, microorganisms, invertebrates and plants outside the scope of the multilateral system under the ITPGR) that have been shown to follow different patterns (Medaglia et al. 2013). Especially developing provider countries may wish to weigh the pros and cons of sectoral agreements outside the CBD/NP framework carefully. On the positive side, the NP requires any other specialised agreement to be in line with the CBD/ NP objectives and thus to ensure fair and equitable benefit sharing. Also, the NP being the default option gives provider countries important leverage in the negotiations vis-à-vis those who want to escape the NP, as already visible in the elaboration of the aforementioned WHO framework (Wilke 2013). However, there is also

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a more problematic side. As Tvedt argues in this volume, sectoral arrangements run the danger of fragmentation of what is covered by the general ABS rules of the NP. There is no guarantee that the crucial balance between access standards and user measures and as regards IPRs (to counterbalance private exclusive rights to innovation and discovery based on genetic material) is maintained as achieved in the CBD. It might be primarily in the interest of users to move the ABS negotiations to other fora without mandatory benefit sharing and without reference to balancing IPRs. User interests may use the opportunity to try to delink ABS from critical patent issues, as they have already—successfully—done within the WHO and in ongoing discussions within FAO on GR for food and agriculture outside the ITPGR.2 In some sense, sector negotiations could be seen going back to square one in negotiating ABS regulations for developing countries. Taking domesticated and other genetic material out of the NP could hence seem to run counter to the interests of providers, still largely the developing world (Rosendal et al., this volume).

ABS governance and biodiversity conservation As we have highlighted in the introductory chapter, the issue area of ABS is special in global environmental governance in that its primary objective is directed at equity, more specifically the ‘fair and equitable sharing of the benefits arising out of the utilization of genetic resources’ (Art. 1 CBD). Whereas in other areas of global environmental governance equity is a principle guiding efforts towards an environmental objective, it constitutes the very objective of ABS governance. The realisation of this objective is, in turn, assumed to contribute to the other objectives of the CBD, that is the conservation of biological diversity and the sustainable use of its components. Whereas this equity focus of ABS governance may make it a strange animal in global environmental governance, the increasing importance of questions of equity in this broader field enhances the relevance of this focus. The theme of ‘allocation and access’ in the science plan of the Earth System Governance Project (Biermann et al. 2009) is witness to the growing prominence of equity and fairness in this context. Equity has also increasingly moved centre-place in wider debates in global environmental governance, including in particular international climate policy, under the headings of ‘common but differentiated responsibilities (and respective capabilities)’ and ‘historical responsibility’. Interestingly, common but differentiated responsibilities do not figure prominently in debates on ABS governance because these debates are not about sharing the burden of cleaning up past ‘sins’ but about sharing benefits (although wider historical liabilities have figured somewhat in the debate). Overall, the equity focus of ABS governance seems timely and the approach to addressing it in the form of a ‘payment for ecosystem services’ mechanism an interesting contribution to the wider toolkit. Evidence that the link between benefit sharing and biodiversity conservation actually works in the way originally construed is meagre. Admittedly, with pre– Nagoya ABS largely dysfunctional, the system had little opportunity to prove its

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Conclusions 245 environmental contribution. Data are scarce but do not indicate a significant effect of ABS revenues on nature conservation (Wolff, this volume). Such an effect also seems less plausible than the original hypothesis might suggest once we take into account that it is potentially a long way from the government that receives the share of the benefit to the actual user or steward of the land/resource that needs protection. In addition, many other factors may trump an uncertain expectation of an uncertain future income that may, after all, have less potential than some expected in the 1990s (see Wolff, this volume). In sectors such as agriculture and pharmaceuticals, the uncertainty is somewhat reduced as the economic returns from the production of food and medicines are less easily disputed, but within these sectors we also see the most interest by users to avoid the ABS principles of the CBD/NP. All in all, ABS has been envisaged primarily in terms of equity and balancing IPRs, with the encouragement of the conservation of biodiversity primarily as an add-on. The assumption that benefit sharing will quasi-automatically create strong incentives (through direct payment for ecosystem services) for biodiversity conservation may thus be unrealistic. As Wolff argues in this volume, ABS may not be the only market-based/ economic instrument whose potential for contributing to environmental protection has been overestimated. It constitutes part of the trend towards the elaboration and establishment of schemes of ‘payment for ecosystem services’. Aiming at a valuation of biodiversity and the ecosystem services it provides (including storage of carbon), nature and natural goods and services are turned into commodities in order to strengthen the interest in environmental protection. Without such valuation, restrictions on land use may promise little short-term revenue, except for some cases involving tourism, even though the long-term benefits associated with ecosystem services are indisputably large. The ABS experience suggests that such a valuation may generally not be a panacea for the problems of biodiversity conservation. The environmental dimension has received scant attention in the international negotiations, including those on the NP. The environmental and conservation dimension has become somewhat submerged by the central equity concern, including conflicts over ABS and IPRs. It is thus symptomatic that environmental nongovernmental organizations (NGOs) have been clearly outnumbered by NGOs representing ILCs (Orsini, this volume). Under these circumstances, it may also not come as a surprise that the NP only contains one meagre article obliging parties to ‘encourage users and providers to direct benefits arising from the utilization of genetic resources towards the conservation of biological diversity and the sustainable use of its components’ (Art. 9). Not only is the language hortatory (‘encourage’), but there is also no monitoring or other mechanism attached to promote such a use of resources. The environmental rationale of ABS may thus deserve or even require strengthening, and there are ample opportunities to do so. Sectoral systems following a more multilateral approach (see previous section) may determine centrally that resources generated be used for agreed purposes such as biodiversity conservation (as already done under the ITPGR, even though the amount of

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resources has remained very limited so far). In the Nagoya context, reporting and monitoring of the use of the income generated according to national legislation may be strengthened in order to promote decentralised use of resources for the conservation of biological diversity in accordance with Article 9 NP (e.g. under Art. 15.7 of the CBD and/or Art. 29 of the NP). Strengthening the environmental dimension of ABS governance in this (and other) ways so as to develop it into one (not the only one) mechanism for generating funds for biodiversity conservation promises to enhance support for ABS in user countries that otherwise have maintained a limited/low interest in effective ABS. At the same time, the ABS system of the CBD/NP was never meant to carry the sole responsibility for biodiversity conservation. Rather, it could be one pillar in a bigger effort, already including international funding through the Global Environment Facility. Having said that, meagre results in terms of conservation are hardly in themselves a valid argument against the equity dimension of the ABS regime.

Conclusion To facilitate broader uptake in discussions on global environmental governance, this concluding chapter has aimed to synthesize the findings of this volume so as to provide an overall assessment of the status and prospects of global ABS governance after the Nagoya Protocol. We have done so with a focus on the two dimensions of (1) actors/coalitions and (2) architecture. We have tried to shed light on the role of actors and coalitions in particular as regards the negotiations on the NP (and have thus focused on states). As regards the ABS governance architecture, we have explored both its ‘interior design’ (i.e. the features of the governance approach per se) and its multi-institutional landscape. Overall, much has remained stable in global ABS governance over the past two decades. However, mainly incremental but significant changes have also occurred, including through the NP that has been in focus here. In ABS governance, equity and environmental protection are mixed in a rather particular way. In many if not most other areas of global environmental governance, equity serves as a principle that guides (and at times haunts) efforts towards achieving environmental objectives. In ABS governance, equity itself is at the centre, as it is the objective to be achieved. The other, more environmental objectives of the CBD, (the conservation of biological diversity and the sustainable use of its components), are assumed to benefit quasi-automatically from the realisation of equity/ABS. The questionability of this link has not galvanized much attention to possibilities for strengthening it. Efforts in this direction are possible and promise to raise more interest in a functioning of ABS governance in developed user countries. Overall, ABS has an important role in enhancing the awareness of the large and long-term benefits associated with ecosystem services provided by biodiversity among users and providers alike. ABS has traditionally been characterized by a North–South conflict, which has become slowly transformed in the 2000s. Developing countries as the main

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Conclusions 247 providers of GR have traditionally confronted developed countries as the main users who have had little incentive and interests in developing effective ABS. While this overall distribution of interest has remained intact, it has begun to transform. First of all, developing countries have acted in various (regional) subgroups in the Nagoya process, indicating less unity. Furthermore, biotechnology interests have started to grow in selected emerging economies (such as Brazil and South Korea) and are set to grow further in the future. A more nuanced framing of actor constellations in global ABS governance may increasingly be appropriate, although it remains to be seen whether the fragmentation of the G-77 during the Nagoya negotiations will become a more lasting feature given continuing strong common interests. The central ABS regime under the CBD establishes a multilateral framework for contract-based exchanges between individual providers and users of GR. It thus can be understood as an early attempt at creating a payment-for-ecosystem-services approach (creating incentives for safeguarding the large and long-term benefits associated with ecosystem services provided by biodiversity), with a rather particular involvement of both private and public actors across national boundaries. Since requirements are specified nationally (rather than harmonized internationally), enforcement constitutes a formidable challenge. The NP attempts to address these challenges by (1) simplifying and, to a very limited extent, harmonizing national access requirements and (2) improving conditions for provider countries to enforce their ABS requirements under private law in user countries’ jurisdictions. The effectiveness of this approach remains uncertain and will also depend on the Protocol’s further implementation at national and international levels. The ABS regime under the CBD forms the centre of a broader institutional complex of global ABS governance including about a dozen other international institutions. These address particular geographical areas (UNCLOS, Antarctic Treaty system) and sectors (ITPGR, FAO, WHO and others) and are involved in international IPR regulation (WTO, WIPO) that interferes with ABS governance. The NP does further consolidate the interinstitutional division of labour by especially opening the door for the further development of specialised sectoral (and geographical) arrangements, while it has left the relationship and tension between the ABS regime under the CBD and IPR regulation under the WTO and WIPO largely unmitigated. Discussions on the elaboration of further specialised arrangements have intensified in several fora in the aftermath of Nagoya (WHO, FAO, UNCLOS). While such a specialization may overall seem rational, developing countries may be well advised to assess the pros and cons carefully. The downside consists of potential further delays and added negotiation costs and it may also be difficult to bring relevant IPR issues on the agenda and to ensure appropriate benefit sharing (which are accepted under the CBD) in ABS negotiations outside the CBD/ NP. On the positive side, the NP provides a useful backstop that can be used in negotiations on sectoral arrangements to advance benefit sharing and a consideration of relevant IPR issues. Under the circumstances, whether developing countries should engage in sectoral discussions may also depend on whether sectoral

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arrangements promise additional gains (such as effective benefit sharing without cumbersome enforcement procedures in user countries). Overall, the NP has brought incremental changes to global ABS governance, trying to re-balance somewhat the provider–user equation with uncertain prospect of success. Much will depend on implementation by parties, especially user countries, and the further development of the broader governance system at the international level. Both the NP and other central institutions engaged in global ABS governance constitute dynamic sectoral legal systems that are typical of global environmental governance and are set to develop further. Next to national implementation of the NP, future international discussions under the Protocol (including on a Global Multilateral Benefit-Sharing Mechanism, compliance and other matters) and in relevant other institutions (FAO, UNCLOS, WTO, WIPO and others) may thus be of crucial importance for the effectiveness of global ABS governance.

Notes 1 For ease of reference, we refer to GR as encompassing associated traditional knowledge in the following unless indicated otherwise. 2 Personal observation (KR), Fourteenth Session of the Commission on Genetic Resources for Food and Agriculture of the FAO, 13 and 15–19 April 2013, Rome.

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Index

t indicates a table reference. ABS-IPR systems, underlying structure 7–8 academic research, governance options for ex-situ collections 213 – 28; ABS “building on what is already there” approach 226; ABS top-down centralized approach 224 – 6; case studies: analysis 222 – 3; case study: ABS principles and implementation at Royal Botanic Gardens, Kew 219 – 20; case study: IPEN 220 – 1; case study: Multilateral System of the ITPGR 219 – 20; and the CBD 215 – 16; common and conflicting interests 214 – 19 Access and Benefit Sharing (ABS): Ad Hoc Technical Working Group 190; African Group’s role in negotiations 116 – 18, 120 – 1; Article 15 (CBD) compliance and 119, 174, 242; basis of legal functionality of 158 – 9; Brazil’s contributions to regulations 42 – 3; CGRFA discussions of 26; challenges to functional ABS system 159 – 61; consequences of lack of effective implementation 6; core explanatory factors (EU external ABS policy) 86 – 7; description 1; discussion of coverage of derivatives 24; domestic politics and law (EU external ABS policy) 87 – 9; as emerging issue in international politics 33 – 6; EU’s policy objectives on 83; genetic resources as core of 18, 178; governance of ex-situ collections approaches 224 – 6; implementation as part of CBD 1 – 8, 18 – 19, 30, 37, 88 – 90, 96 – 7, 135 – 9, 150, 160; increasing legal functionality of governance of 171 – 4; India’s contribution to regulations 42 – 3; institutional complex of ABS

governance 181 – 4, 182t; international GR definitions 25 – 7; IPRs balance with 196 – 8; ITPGR multilateral system (MLS) establishment for 140 – 1; need for balancing with IPRs 7; negotiation conflicts 36 – 7; NSA’s role in negotiations 62, 67, 68t, 69 – 71; pathogens, special clause on 49, 175; reasons for bringing into the CBD 18 – 19; relevant meetings during negotiations (2002 – 2010) 47t – 48t; South Africa’s contribution to regulations 42 – 3; Switzerland’s role in negotiations 97 – 9, 103 – 8 access standards (international), of Nagoya Protocol 38 – 9 Act on Management of Wild Marine Resources (2008) 201 Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing 27, 61t, 62 Ad Hoc Technical Working Group on Access and Benefit Sharing (FAO Commission) 190 African Group: participation in final NP negotiations 123 – 4 African Group (AG): entrepreneurial leadership by 13, 116, 122 – 3, 126 – 7; inception and consolidation of 116 – 21; informal partnerships with NSAs 71 – 2; intellectual leadership by 122 – 3, 126 – 7, 236; membership information 114; and pathogens 119, 121; request for respect of sovereign rights over natural resources 45 African Group (AG), role in Nagoya Protocol negotiations 44 – 5, 114 – 27; credo of, during negotiations 123; emergence/consolidation of pan-African cooperation on ABS 116 – 18; leadership

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Index

and “realpolitik” 121 – 3; main goals 119 – 21; outreach and networks 121; post-Nagoya Protocol implications 125 – 6; preferences on main elements 52t; success evaluation 123 – 5 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 4, 182 Aichi Biodiversity Targets 79, 86 Antarctic Treaty (AT) 27, 37, 40, 42, 124, 182, 183 aquatic genetic resources, governance framework 196 – 209; balancing of ABS and IPRs 206 – 7; biological/ technological traits pertaining to ABS 199 – 200; biology and trends in ownership structure 203 – 5; cod farming, Norway 198, 202; farmed tilapia, Asia 202; IPRs and 196; legal options for access, equity, conservation, innovation 198 – 9; and multinational corporations 198 – 9, 203, 205 – 7, 209; regional access to tilapia, Volta Basin 202 – 3; salmon farming, Chile 198, 200 – 1; salmon farming, Norway 198, 201; sectoral approach 203, 205 – 6; shrimp, carp farming in India 203; specifics of utilization of GR 199 – 207 Argentina: WGABS submissions 105t Article 2 (Convention on Biological Diversity ) 19, 26, 50, 162, 169 Article 3 (Nagoya Protocol) 24, 185, 186, 187, 188 Article 4 (Nagoya Protocol) 37, 50, 170 – 1, 175, 183, 185, 188, 196, 208, 219 Article 5.1 (Nagoya Protocol) 163 Article 6 (Nagoya Protocol) 6, 50, 168, 173 Article 6.3 (Nagoya Protocol) 166, 168 Article 8(a) (Nagoya Protocol) 107, 168, 213, 215 Article 8( j) (Convention on Biological Diversity) 24, 66 Article 10 (Nagoya Protocol) 49 – 50, 124, 125, 185 – 7, 217, 219, 224 – 5 Article 15 (Convention on Biological Diversity) 61; ABS compliance and 119, 174, 242; on benefit sharing 163; binding obligations of 158; described 5, 35, 49, 185; GR utilization and 49, 123, 161, 164, 174, 214; and MAT 172; NGOs following of negotiations of 61 Article 15.7 (Convention on Biological Diversity) 158, 160, 163, 242

Article 22.1 (Convention on Biological Diversity) 185 Article 27.3 (WTO-TRIPS Agreement) 87 – 8 Article 31 (Nagoya Protocol) 54 Article 300, Treaty Establishing the European Community 91 Australia 234 – 5; JUSCANZ membership 41; preference for voluntary codes of conduct 84; share in Patent Cooperation Treaty 89t; WGABS meeting participation (2009) 72; WGABS submissions 105t Ayurvedic medicine (India) 38, 44 Bavikatte, K. 24 – 5 Belgium 83, 87, 89t benefit sharing see Access and Benefit Sharing; Global Multilateral BenefitSharing Mechanism Benefit-Sharing Fund 140 – 2, 220 Berne Declaration 66, 70 biodiversity (biological diversity): ABS governance and conservation of 244 – 6; command-and-control approaches 132; data for LMMC 138; defined 3; estimation of losses 1; Global Biodiversity Outlook 3 138; increasing losses of 97 – 8; international community responsibility establishment 35; Japan Biodiversity Fund 49; National Biodiversity Institute 138; Swiss biotech industries 98; UNGA HighLevel Meeting on Biodiversity 48; see also Strategic Plan for Biodiversity biodiversity research see academic research, governance options for ex-situ collections bioinformatics 29 biological derivatives: ABS meetings and negotiations 47t – 48t; African Group and 123 – 4; Article 2 definition 50; conflicts regarding 28, 37, 49; coverage of 7, 24, 74, 119; European Union and 85; JUSCANZ and 41; tracking of 221 biological functionality see functional units of heredity “biopiracy” of genetic resources 5 biotechnology: and agricultural, pharmaceutical privatization 4; codes of conduct for commercial users 137; commercialization advances created by 34; developmental results of 4; ecosystem services 139; European

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Index Union and 12, 19, 42, 80, 88, 91, 235; food and agriculture (FAO) report 26; growth of patents in 199; indigenous and local communities and 3; IRP regulations and 198 – 9; in JUSCANZ countries 41; pathogens 169; Patent Cooperation Treaty (2006) 87 – 9, 89t, 105; profitability of 204; rise of, and global ABS governance 1, 158 – 9, 233, 235; in South Africa 44; strength of, in the U.S. 234; in Switzerland 98; see also European Federation of Biotechnology Section on Applied Biocatalysis; genetic resources Biotechnology Industry Organization (BIO) 69 Bonn Guidelines 47t, 73; adoption of 22, 97; COP-6 adoption of 36, 104; implementation efforts 42, 83, 96; JUSCANZ members and 41; NSAs influences on 61; significance to Nagoya Protocol 104; Switzerland’s promotion of 104, 108 Brazil: contributions to ABS regulations 42 – 3; LMMC membership 43 – 4; share in Patent Cooperation Treaty 89t; WGABS submissions 105t Buck, M. 85 – 6 Canada: ABS negotiation participation 47t; endorsement of BIO proposal 72; JUSCANZ membership 41; preference for voluntary codes of conduct 84; share in Patent Cooperation Treaty 89t; support of NSAs 66; Switzerland’s loss of CBD Secretariat to 101; WGABS submissions 105t Cartagena Biosafety Protocol 64, 73 – 4, 121 CBD see Convention on Biological Diversity (CBD) CBD Alliance 67 CBD Programme of Work on Protected Areas 121 CDM see Clean Development Mechanism Center for International Sustainable Development Law (CISDL) 70 – 1 Chile: aquaculture studies 198; salmon farming in 200 – 1, 205 China: LMMC membership 43 – 4; Nagoya Protocol negotiation participation 42 – 3; post-Montreal meeting increase of pressure by 48; share in Patent Cooperation Treaty 89t

253

CITES see Convention on the International Trade in Endangered Species of Wild Fauna and Flora Clean Development Mechanism (CDM): description of role 143; forestry projects of 133, 142 – 3, 147; issuance of CO2 credits 145; Kyoto Protocol introduction of 132; afforestation and reforestation projects under 13, 142 – 6; UNFCCC introduction of 132; money leveraged by 145; project limitations 146, 152; projects registered with (early 2013) 143 – 4; REDD+ comparison 146, 148, 151 – 2 climate change: greenhouse gas as driver of 142 – 3, 145 – 7, 149; Group of 77 and 232; instrument evolution 143; loss of biodiversity from 1; REDD+ and 147, 149; role of multilateral environmental agreements 81; see also Intergovernmental Panel on Climate; Kyoto Protocol; UN Framework Convention on Climate Change coercive leadership 80 – 1, 115 Colombia: LMMC membership 43 – 4; WGABS submissions 105t Commission on Genetic Resources (FAO) 26, 182, 184, 186, 190, 197 – 9, 208 – 9 compliance measures to support benefit sharing, of Nagoya Protocol 39 – 40 Conference of the Parties-4 (COP-4; Bratislava, 1998) 104 Conference of the Parties-5 (COP-5; Nairobi, 2000) 36, 104 Conference of the Parties-6 (COP-6; The Hague, 2002) 36, 104 Conference of the Parties-7 (COP-7; Kuala Lumpur, 2004) 46, 47t, 116 Conference of the Parties-8 (COP-8; Curitiba, Brazil, 2006) 46, 47t, 117 Conference of the Parties-9 (COP-9; Bonn, Germany, 2008) 47t, 117 Conference of the Parties-10 (COP-10) 48 – 9, 117, 118, 125, 127 Consultative Group on International Agricultural Research (CGIAR) 140 – 1, 220 Convention on Biological Diversity (CBD): ABS implementation as a part of 1 – 8, 18 – 19, 30, 37, 88 – 90, 96 – 7, 135 – 9, 150, 160; acknowledgment of sovereign rights, of countries, over natural resources 237; African Group and 114 – 26; Article 15 158,

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Index

172, 175; Article 15.7 158, 160 – 1, 163, 172, 174, 242; benefit-sharing objective of 82, 91, 132; benefitsharing obligations 161 – 5, 162 – 5; description of negotiating process 62; early 1990s negotiations xiii, 4, 23; EU and 42; ex-situ collections, academic research and 215 – 16; G-77 countries and 42 – 3; genetic resources, market for 133, 135 – 9; genetic resources, regulation 151; GRULAC and 45; ICC submissions to 69; international agenda variances in negotiations 35; interpretation of “genetic resources” in 19 – 26; JUSCANZ and 41; marketbased approach pursued under 9; on need for balancing ABS with IPRs 7; negotiation process description 62; 1992 adoption of 1; NP elaboration of regulatory framework 85; obligations for member countries 159, 161; and pathogens 169; post entry-into-force ABS provision implementations 36; property rights governance 4; provider/ user private-law contracts promotion 39; as a quid pro quo 158; reasons for bringing ABS into 18 – 19; signing in Rio de Janeiro (1992) 97 – 8; Strategy for Resource Mobilization 13, 33, 48 – 9, 79, 86, 89, 91, 121, 123, 233, 235; Subsidiary Body on Scientific, Technical and Technological Advice 46; support for participation of ILCs 66; Swiss delegations to 102 – 8; Switzerland’s loss of CBD Secretariat to Canada o 101; traditional knowledge and 38 – 9, 50; see also Access and Benefit Sharing (ABS); individual Conferences of the Parties Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES) 98, 125 Copenhagen Climate Summit 79 – 80, 90, 92, 123, 127, 235 COP reports data 47t – 48t Costa Rica: contributions to ABS regulations 42 – 3; LMMC membership 43 – 4; WGABS submissions 105t Council of the Agreement on TradeRelated Aspects of Intellectual Property Rights 27 Council of the European Union 82 Council of the European Union Environment Ministers 83

CropLife International 69 Czech Republic, WGABS submissions 105t Democratic Republic of Congo, LMMC membership 43 – 4 Denmark: biotechnical interests of 88; development of biotherapies 98; share in Patent Cooperation Treaty 89t derivatives see biological derivatives directional leadership 81, 86, 116 discursive resources of NSAs 63 – 4 DNA (deoxyribonucleic acid) 20; biotechnological advances and patents 34; blueprint made by 23; evolving understanding of 27 – 8; and genetic resources 21 – 3, 25; recombinant DNA techniques 23; see also functional units of heredity Earth Negotiation Bulletin 67 Earth System Governance Project: adoption, description of 2; governance architecture description 8 – 10; role of “agency” in 10 – 11 Eckersley, Robyn 81 ECO Newsletter 72 economic scope issues, in Nagoya Protocol negotiations 37 – 8 The Economics of Ecosystem and Biodiversity (TEEB) initiative 133 Ecuador, LMMC membership 43 – 4 entrepreneurial leadership 99; by the African Group 13, 116, 122 – 3, 126 – 7; described 81; by the European Commission 80, 91 – 2; importance in complex negotiations 100; by small states 100; by Switzerland 11, 103, 107 Environment Council Conclusions (March, 2006 and June, 2007) 83 European Association for BioIndustries (EuropaBio) 19 European Commission on the ABS agreement 76, 80, 91 – 2 European Federation of Biotechnology Section on Applied Biocatalysis (ESAB) 19 European Union (EU): acceptance of IPRs legislations 80; and biotechnology 12, 19, 42, 80, 88, 91, 235; cooperation in ABS protocol 79; participation in final NP negotiations 123 – 4; post-NP assessment 234 – 6; preferences on main elements of Nagoya Protocol 52t;

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Index share of usage of genetic resources 79; signing of Nagoya Protocol 6; WGABS submissions 105t European Union (EU)-27, share in Patent Cooperation Treaty 89t European Union (EU) Biotechnology Directive 42 European Union (EU) Emissions Trading Scheme 144, 152 European Union, role in Nagoya Protocol negotiations 41 – 2, 79 – 93; adoption of Strategic Plan for Biodiversity 91; adoption of Strategy for Resource Mobilization 91; concessions made by EU 85 – 6; conservative/moderately conservative policy objectives 82 – 4; domestic interests influences 86 – 7; domestic politics and law 87 – 9, 88t; EU legislation factors 86; explanation of external ABS policy 86 – 91; external policy on ABS 80 – 6; implications of EU’s policy change 84 – 6; leadership standard establishment 80 – 2; policy entrepreneurs’ role 87; relevant norms 87; role of EU as policy entrepreneur 89 – 91; successful achievement of objectives 85 ex-situ collections in academic research: debates about, and published TK 216 – 17; diversity of 215; documentation, archiving, preservation of 215; examples of 215 – 16; see also academic research, governance options for ex-situ collections Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity: adoption of 2 FAO (Food and Agricultural Organisation) Commission on Genetic Resources 26, 34, 171, 182, 184, 186, 190, 197, 199, 206, 208 – 9; see also UN Food and Agricultural Organisation Fauchald, O. K. 173 Federal Council of Switzerland 102 – 3 Federal Institute for Intellectual Property (Switzerland) 106 – 7 Federal Office for the Environment (FOEN) (Switzerland) 102 Fridtjof Nansen Institute meeting (Norway, 2011) xiii functional units of heredity 20 – 1

255

Gehring, Thomas 181 genetic erosion 33 – 4, 139 Genetic Improvement of Farmed Tilapia (GIFT), in Southeast Asia and Ghana 198 genetic material: functional units of heredity and 23; relation to genetic resources 21 – 3; Tvedt and Young’s ways of understanding 20 – 1 genetic resources (GR): access standards issues 38 – 9; African Group and 114; Article 15 and utilization of 49, 123, 161, 164, 174, 214; benefit sharing of 50 – 1, 53, 79, 98, 198, 216; “biopiracy” of 5; capturing of 23 – 4; CBD/NP market for 133 – 4; CGRFA discussions related to 26; conflicts in access to 98; definitions 3, 18, 19 – 21, 23, 25 – 7; determination of what counts as 23 – 4; EU share of 79; EU share of usage of 79; exploring the content of utilization of 161 – 3; global value of derived products 3; Hoodia example of resources misappropriation 70; importance vs. microbiological material 21; increasing interest in 97 – 8; interpretation of, in the CBD 19 – 25; market for 135 – 9; MAT and 35; monitoring of flow of 39; national sovereignty arguments 5; NP and the user of 161 – 5; PGRFA subset 139 – 41; PIC and 7, 35, 38, 45, 50 – 1, 114; point of access vs. point of utilization of 14; point of utilization and verifiability of 160; preparations for research 213; range of technologies applied to 26; redefinition on sovereignty/property rights on 132; relation to ABS 159 – 60; shared earnings discussion 161; traditional knowledge element 7, 24 – 5, 37; in tropical developing countries 1; user contributions to sustainable use 158; “utilization” definition 24, 162 – 4; utilization issues 5 – 6, 8, 23, 49, 119 – 20, 124 – 5, 160 – 5, 168 – 73, 186, 196, 217 – 20, 223; see also aquatic genetic resources, governance framework; biological derivatives; biotechnology; natural resources, sovereign rights of countries over; pathogens; plant genetic resources for food and agriculture Genetic Resources Commission (FAO) 26, 182, 184, 186, 190, 197 – 9, 208 – 9

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genomics studies 28 – 9 geographic scope issues, in Nagoya Protocol negotiations 37 Global Biodiversity Outlook 3 138 Global Influenza Surveillance Network 190 Global Multilateral Benefit-Sharing Mechanism 7 – 8, 13, 15, 45, 49 – 50, 53 – 4, 114, 124, 217, 224, 226 – 7 governance architecture: defined 8 – 10 governance architecture (of ABS): fragmentation consequences 180 – 1; internal vs. external dimensions 9 – 10, 237, 246; multi-institutional 178, 246; NP reinforcement of 191 – 2; subcomplexes 183, 240 GR see genetic resources (GR) greenhouse gas (GS) 142 – 3, 145 – 7, 149 Group of 77 (G-77): absence in NP negotiations 232; and climate change 232; complaints about dispositions on ABS 98; conservation of global biodiversity hotspots by 35; differentiation/disintegration of, in global ABS governance 232; limited successes of 236; Nagoya Protocol negotiation participation 42 – 3; postMontreal meeting increase of pressure by 48 Group of Latin American and Caribbean Countries (GRULAC): preferences on main elements of Nagoya Protocol 52t; role in Nagoya Protocol negotiations 45, 82, 121 GRULAC see Group of Latin American and Caribbean Countries (GRULAC) Hamilton, C. 85 – 6 High-Level Meeting on Biodiversity (UNGA) 48 Hoodia cactus 70 ideational leadership 116 India: Ayurvedic medicine 38, 44; contributions to ABS regulations 42 – 3; LMMC membership 43 – 4; share in Patent Cooperation Treaty 89t; WGABS submissions 105t indigenous and local communities (ILCs) 38; African Group and 117; agreements favorable to 73 – 5; and biotechnology 3; Canada’s hesitancy in recognition of 41; CBD’s Article 8( j) addressing of 66; granting of PIC

by 70; oral interventions favored by 72; safeguarding the rights of 69 – 70, 120; and traditional knowledge 3, 7, 38 – 9, 43, 45, 50 – 1, 124, 237 Indigenous Information Network (IIN) 69 Indigenous Peoples’ Council on Biocolonialism (IPCB) 69 Indigenous Peoples’ International Centre for Policy Research and Education (aka Tebtebba) 65, 66 – 7, 68t, 69 – 73 Indonesia: LMMC membership 43 – 4; withholding H5N1 virus samples by 55–107 instrumental leadership 99, 116; described 81; importance in complex negotiations 100 intellectual leadership 99; by the African Group 122 – 3, 126 – 7, 236; described 99; importance in complex negotiations 100; protections of plant genetic resources 139; by small states 100; by Switzerland 106, 108, 236 intellectual property rights (IPRs): African Group concerns 120; call for global standards 34; conflicts in negotiations 98; CBD/ABS relationship with 196–8; EU acceptance of legislation on 80; life sciences applications 4; need for balancing with ABS 7, 196–8; plant breeding rights protections 34; traditional knowledge issues 38, 54, 70, 216; see also TradeRelated Aspects of Intellectual Property Rights; see also patents, patenting Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO) 26 – 7, 105, 121, 171 Intergovernmental Panel on Climate 142 international access standards: African Group and 120, 124; call for inclusion of 42, 82; as contentious issue 53; described 38 – 9; EU position on 83 – 5; interest of biotechnology stakeholders in 88; LMMC intent on balancing 43 – 4; as Nagoya core element 6, 166, 239; NSAs’ position regarding 67 International Chamber of Commerce (ICC) 67, 69, 72 International Civil Aviation Organization (ICAO) 180 International Convention for the Protection of New Varieties of Plants 34 International Human Dimensions Programme on Global Environmental Change (IHDP) 2

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Index International Indigenous Forum on Biodiversity (IIFB) 67, 69 – 70 International Plant Exchange Network (IPEN) 96, 220 – 1 international relations negotiation theory 114 – 16 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) 25 – 6, 34, 36, 40, 120 – 1, 132, 139, 171, 197 International Union for the Protection of New Varieties of Plants (UPOV) Convention 182 IPRs see intellectual property rights (IPRs) Iran, WGABS submissions 105t Italy, share in Patent Cooperation Treaty 89t ITPGR see International Treaty on Plant Genetic Resources for Food and Agriculture Japan: formation of JUSCANZ 41; participation in final NP negotiations 123 – 4; preference for voluntary codes of conduct 84; share in Patent Cooperation Treaty 89t; WGABS submissions 105t; see also JUSCANZ (Japan, United States, Canada, New Zealand) Japan Biodiversity Fund 49 JUSCANZ (Japan, United States, Canada, New Zealand) 235 – 6; arguments for TK 41; description, formation 41; preferences on main elements of Nagoya Protocol 52t Kenya, LMMC membership 43 – 4 Kyoto Protocol (to the UNFCCC) 132, 142 – 3; see also Clean Development Mechanism (CDM) leadership: coercive 80 – 1, 115; directional 81, 86, 116; instrumental 81, 99 – 100, 116; structural 80 – 1, 115, 236; see also entrepreneurial leadership; intellectual leadership legal nature of Nagoya Protocol 36 – 7 Like-Minded Asia-Pacific Countries (LMAPC) 49; preferences on main elements of Nagoya Protocol 52t, 232; role in Nagoya Protocol negotiations 44, 82 Like-Minded Megadiverse Countries (LMMC): biodiversity data for 138;

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development of terrestrial and marine protected areas 138; formation of 36, 43; objectives of 43 – 4; preferences on main elements of Nagoya Protocol 52t; role in Nagoya Protocol negotiations 43 – 4, 82, 117, 121 Madagascar, LMMC membership 43 – 4 Malaysia, LMMC membership 43 – 4 Mexico: LMMC membership 43 – 4; WGABS submissions 105t Morin, J.-F. 107 – 8 multilateral environmental agreements (MEAs) 53, 81, 181, 191, 232, 235 Multilateral System (MLS) for ABS: ITPGR establishment of 140 – 1; Standard Material Transfer Agreement of 140 – 1, 220 – 3 multinational corporations (MNCs): African fears related to 199; aquaculture industry and 203, 205 – 7; crop seed sector 207; Ghana and 206; interest in securing IPRs 198; of Norway 205; transfer of GR materials 209 mutually agreed terms (MAT): African Group and 119; Article 15.7 and 172; compliance requirements 39, 44; enabling of enforcement of 6 – 7; establishment procedures 51; in fair and equitable benefit sharing (of GM resources) 163; Global Benefit-Sharing Mechanism and 49; GR and 35, 38 – 9, 50; for marketing genetic resources 136 – 7; NP on enforcement of 172 – 4; prior informed consent and 5, 6; TK and 39, 50 Nagoya Protocol (NP) 231 – 48; Access and Benefit Sharing under 1 – 8, 135 – 9; access situations exclusions 167 – 70; adoption by COP-10 xiii, 2; Article 4.4 158; Bonn Guidelines significance to 104; core elements 6 – 8; key actors and interests 41 – 5; NSAs’ position regarding core issues 68t; outcome elements 49 – 51, 52t; PIC and MAT, enforcement of 172 – 4; prior informed consent, enforcement of 173 – 4; reflections on negotiation dynamics 45 – 8; sector-wise reopening of NP compromise 170 – 1; signing of, by European Union 6; traditional knowledge (TK) core element 7, 24 – 5, 38; and the user of GR 161 – 5

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258

Index

Nagoya Protocol (NP), impact on evolving complex of ABS governance 178 – 92; conceptual framework: effects of interplay management 180 – 1; conceptual framework: institutional complexes, related divisions of labor 179 – 80; impact of NP on the institutional complex 184 – 90; institutional complex of ABS governance 181 – 4; NP’s influence on the institutional complex 184 – 90 Nagoya Protocol (NP), post-protocol assessment of global governance of GR 231 – 48; ABS governance and biodiversity conservation 244 – 6; challenges and prospects 240 – 4; developed countries 234 – 6; developing countries 231 – 3; evolving institutional complex of global ABS governance 239 – 40; interior design of global ABS governance 237 – 9; nonstate actors 236 – 7; small states 236 – 7 Nagoya Protocol, key issues 36 – 40; benefit sharing from pathogens 40; compliance measures to support benefit sharing 39 – 40; international access standards 38 – 9; legal nature 36 – 7; relationship with other international agreements 40; scope 37 – 8; traditional knowledge 38 Nagoya Protocol, negotiations: African Group role 44 – 5, 114 – 27; China’s participation 42 – 3; European Union role 41 – 2, 79 – 93; G-77 negotiation participation 42 – 3; GRULAC participation 45, 82, 121; JUSCANZ participation 41; LMAPC participation 44, 82; LMMC participation 43 – 4, 82, 121; non-actors role 60 – 76; Switzerland’s participation 96 – 109; U.S. absence 79 National Aboriginal Health Organization (NAHO) 66, 69 National Biodiversity Institute (INBio) of Costa Rica 138 Nature Diversity Act (2009) 201 Netherlands, share in Patent Cooperation Treaty 89t New Zealand: JUSCANZ membership 41; preference for voluntary codes of conduct 84; WGABS submissions 105t

NGOs (non-governmental organizations) 60; agreements favorable to 73 – 5; business actors comparison with 71; environmental 64; following of negotiations of CBD Article 15 61; norm entrepreneur-literature focus on impact of 116; promotion activities of 72; Southern NGOs 35; with sustainable development objectives 65 Niederberger, Arquit 103 Nigeria, WGABS submissions 105t Nijar, Gurdial Singh 73 non-state actors (NSAs): business organizations 65, 71; categories of belonging 62 – 3; discursive resources of 63 – 4; impact on environmental negotiations 64 – 5; indigenous organizations 65 – 6; influence in scope of CBD negotiations 61; organization resources of 63; participating observers in ABS negotiation process 61t; position regarding Nagoya Protocol core issues 68t; representatives of ILCs 66; role in ABS negotiations 62, 67, 68t, 69 – 71; role in Nagoya Protocol negotiations 65 – 7; scope of membership of 66; strategies 71 – 3; Third World Network 66 – 7; tracks of pursuit of 60 – 1 Norway: aquaculture studies 198; participation in final NP negotiations 123 – 4; WGABS submissions 105t NSAs see non-state actors Oberthür, S. 181 opinion juris (binding state practice) 18 Organization for Economic Cooperation and Development (OECD) 19, 132 Orsini, A. 107 – 8 Pakistan, WGABS submissions 105t Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits (2011) 189 – 90 Patent Cooperation Treaty (2006) 27, 87 – 9, 89t, 105 patent(s), patenting: balancing ABS 4, 7, 30, 34, 39–43, 51, 54, 70, 96, 106, 120–21, 141, 152, 167, 171, 175, 183–84, 196–97, 199, 203, 207–08, 216, 232, 241; countries’ share of biotechnology patent 89t; and aquaculture 200, 202–209; and

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Index agriculture/FAO/ITPGR 121, 140– 41, 152, 197, 199, 206, 209, 220, 244; and disclosure/link to WTO and WIPO 27, 39– 43, 51, 70, 74– 5, 82, 84, 98, 105– 06, 120, 125, 183– 84, 188, 191, 198, 228, 239, 241– 42; and EU 84, 87– 89; and India 203; and innovation/access to technology 199, 200, 207; and MNC 69, 74, 207, 209, 241; and noncommercial research 167, 218; and Norway 206; and Switzerland 98, 106; and TK/ILC 38, 54, 70, 216; and WHO/pathogens 169– 70 pathogens: ABS special clause on 49, 175; African Group and 119, 121; Antarctic Treaty System and 182–3; benefit sharing from 40; Bonn Guidelines regarding 97; conflicts over 28; decisions regarding inclusion in NP 37, 40, 46, 50, 107; FAO Commission rules 197; regulation of 25; special access regulations 168–70; Switzerland and 108; WHO virus-sharing system 107, 184, 191 payment scheme for PGRFA 139 – 42; see also plant genetic resources for food and agriculture (PGRFA) payment scheme Peru, LMMC membership 43 – 4 Philippines, LMMC membership 43 – 4 plant breeding rights protections 34 plant genetic resources for food and agriculture (PGRFA) payment scheme: the instrument 140 – 1; instrument effects 141 – 2; instrument evolution 139 – 40; targeted ecosystem service 139 policy entrepreneurs’ role in Nagoya Protocol negotiations 87 prior informed consent (PIC): African Group and 114; Global Benefit-Sharing Mechanism and 49; GR and 7, 35, 38, 45, 50 – 1, 114; of indigenous people 70; and mutually agreed terms 5, 6; NP on enforcement of 172 – 4; requirements for compliance 53, 70; TK and 7, 38, 44, 50 – 1 proteomics studies 28 – 9 Ramsar Convention on Wetlands 98 REDD+ (Reducing Emissions from Deforestation and Forest Degradation in Developing Countries) 13, 132 – 3, 146 – 50; CDM comparison 146, 148,

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151 – 2; forms of 148; goal of 147 – 8; initiation of 147; potential effects of 149 – 50, 152 relationship with other international agreements (Nagoya core element) 7, 40 Rio+20 UN Conference on Sustainable Development (UN 2011) 133 RNA (ribonucleic acid) 28 Robinson, D. F. 24 – 5 Rosendal, G. K. 34, 41, 83, 121, 140, 183 Russian Association of Indigenous People of the North (RAIPON) 69, 76 Russian Federation, share in Patent Cooperation Treaty 89t Schreurs, M. A. 87 Schwager, S. 103 scope of ABS/CBD/NP 7, 12, 14, 20 – 5, 28, 35, 37 – 8, 40, 46 – 53, 74, 82, 84 – 5, 164, 168, 185 – 6, 214, 217, 224 – 5, 232; and AG 114, 119, 122, 124 – 5; and ATS 27; and EU 42, 85; and G77 43 – 4; and JUSCANZ 41; and NSA 61, 67 – 8, 70, 75; and ICC 169; and relation to other treaties 25 – 6, 171, 175, 184, 196, 198 – 9, 223, 225, 227, 240, 243; and Switzerland 107 sectoral: agreements 167, 189, 225, 239 – 40, 243 – 5, 247 – 8; approach 15, 48, 122, 191, 196 – 8, 203, 205 – 06, 208; sector-wise 170, 175, 178 – 9; specialization 182, 184, 189 – 92, 240; working groups 105 seed wars 34 small states: defense of common interests by 107; defined 99; entrepreneurial/ intellectual leadership by 100; international negotiations influenced by 115; methods of gaining influence by 100; and nonstate actors 236 – 7; and power 99 – 100; see also Switzerland South Africa: contributions to ABS regulations 42 – 3; LMMC membership 43 – 4; share in Patent Cooperation Treaty 89t South Korea, share in Patent Cooperation Treaty 89t sovereign rights of countries over GR African Group request for respect of 45, 123; Article 6 (of NP) reaffirmation of 50; Article 15 (of NP) recognition of 5, 49, 185;

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Index

CBD preamble acknowledgment of 237; country and ITPGR 209; genetic engineering patents and 218; governmental recognition of 35; private rights vs. 201; and regulatory burden of provider countries’ 159, 164 – 5, 173 – 4, 201, 209, 238; as response to IPR and FAO Undertaking 5, 34 – 5, 98, 107, 140, 209, 218, 237 Spain, share in Patent Cooperation Treaty 89t Standard Material Transfer Agreement (SMTA) of the Multilateral System 140 – 1, 220 – 3 Standing Committee on the Law of Patents (WIPO) 27 Stern Review 133 Strategic Plan for Biodiversity (2011 – 2020) 13, 33, 46, 79, 85, 86, 89, 91, 121, 123, 233, 235 Strategic Plan for Resource Mobilization 123 Strategy for Resource Mobilization 13, 33, 48 – 9, 79, 86, 89, 91, 121, 123, 233, 235 structural leadership 80 – 1, 115, 236 Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) 46 Sweden, share in Patent Cooperation Treaty 89t Swiss Academy of Natural Science 107 Switzerland: ABS negotiations 97 – 9; as actor in ABS negotiations 103 – 8; biodiversity industry 98; delegations to the CBD 102 – 8; entrepreneurial leadership by 11, 103, 107; Federal Institute for Intellectual Property 106 – 7; foreign policy formation 101 – 3; intellectual leadership by 106, 108, 236; loss of CBD Secretariat to Canada 101; and pathogens 108; promotion of Bonn Guidelines 104, 108; role in Nagoya Protocol negotiations 96 – 109; small state status of 99 – 100; support of NSAs 66; WGABS submissions 105t synthetic biology studies 29 Tebtebba (aka Indigenous Peoples’ International Centre for Policy Research and Education) 65, 66 – 7, 68t, 69 – 73 terrestrial species: burden of global distribution 4–5; LMMC development of 138; in tropical developing countries 1 The Economics of Ecosystem and Biodiversity (TEEB) initiative 133

Third World Network (TWN) 66 – 7, 70 Tiberghien, Y. 87 TK see traditional knowledge (TK) Trade-Related Aspects of Intellectual Property Rights (WTO-TRIPS) 40, 42, 44, 82, 87, 126, 182 – 3, 188, 191, 240 – 1 traditional Chinese medicine (TCM) 7, 38, 44, 50 – 1 traditional knowledge (TK): access standards issues 38 – 9; debates about ex-situ collections and published TK 216 – 17; EU’s agreement for inclusion of 42; and indigenous and local communities 3, 7, 38 – 9, 43, 45, 50 – 1, 124, 237; JUSCANZ arguments about 41; LMAPC’s concerns about 44; as Nagoya core element 7, 24 – 5, 38; negotiation issues related to 38 Treaty Establishing the European Community, Article 300 91 Tulalip Tribes (Washington State) 69 Tvedt, M. W. 20 – 1, 173 UN Conference on Environment and Development (1993; Rio de Janeiro) 35 UN Conference on Sustainable Development (UN 2011) 133 UN Convention on the Law of the Sea (UNCLOS) 27, 37, 40, 42, 178, 180, 183 UN Declaration on the Rights of Indigenous People 74 UN Environment Programme for Europe 71, 98 UN Food and Agricultural Organisation (UN FAO) 4, 26, 34, 36, 132, 139, 170, 178, 182, 184, 189, 191 UN Framework Convention on Climate Change (UNFCCC, 1992) 8, 101, 132, 142 – 3 UN General Assembly (UNGA): Ad Hoc Open-ended Informal Working Group 27; High-Level Meeting on Biodiversity 48; resolution 57/260 36; 2002 resolution 45 – 6 UN Millennium Ecosystem Assessment 5, 133 – 4 United Kingdom: advocacy for convention 234; biotechnological interests in 88; share in Patent Cooperation Treaty 89t United States: absence in Nagoya Protocol negotiations 79; biotechnology industry 234; Biotechnology Industry Organization 69; JUSCANZ

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Index membership 41; post-NP assessment 234 – 6; R and D hotspots 41; share in Patent Cooperation Treaty 89t; WGABS submissions 105t UPOV Convention see International Union for the Protection of New Varieties of Plants (UPOV) Convention user measures: African Group and 120; Bonn Guidelines negotiations and 36; compliance with 48, 52t; design considerations 137; developed countries and 50 – 1; establishment of 70; genetic resources and 45; implementation 54, 137; implementation leeway 54, 137, 242; as Nagoya core element 6, 14, 39, 174; NSAs’ position 67, 68t; potential enforcement problems 151; role in cross-border disputes, disagreements 172 value of genetic material, actual or potential 21 – 3 Venezuela: LMMC membership 43 – 4; WGABS submissions 105t Vienna Convention on the Law of Treaties 19 weak states: leadership influences in negotiations 13; study of in international negotiations 115 – 16 Working Group on Access and Benefit Sharing (WGABS) 36, 47t – 48t; establishment of 36; number of meetings attended by each NSA registered as observer 66t; number of Swiss submissions 106t; 2004 mandate 36 – 7; see also individual WGABS Working Group on Access and Benefit Sharing-3 (WGABS-3; Thailand, 2005) 47t Working Group on Access and Benefit Sharing-4 (WGABS-4; Spain, 2006) 46, 47t, 67 Working Group on Access and Benefit Sharing-5 (WGABS-5; Montreal, Canada, 2007) 47t

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Working Group on Access and Benefit Sharing-6 (WGABS-6; Geneva, Switzerland, 2008) 47t, 70 Working Group on Access and Benefit Sharing-7 (WGABS-7; Paris, France, 2009) 47t Working Group on Access and Benefit Sharing-8 (WGABS-8; Montreal, Canada, 2009) 47t, 71, 107 Working Group on Access and Benefit Sharing-9 (WGABS-9; Cali, Colombia, 2010) 47t Working Group on Access and Benefit Sharing-9bis (WGABS-9bis; Montreal, Canada, 2010) 47t Working Group on Marine Biological Diversity beyond Areas of National Jurisdiction 171 Working Party on International Environment Issues (WPIEI) of the EU Council 83 World Conservation Union (IUCN) 35, 98 World Health Assembly (WHO) 190 World Health Organization (WHO) 83; and ABS governance 182, 182t; EU demand for noninterference by 84; influenza epidemic issue 107, 168; pathogen and virus regulation, agreements 25, 40, 121, 170 – 1, 184, 189 – 91; World Health Assembly 190 World Intellectual Property Organization (WIPO) 7, 26 – 7, 98, 171, 197 World Organization for Animal Health (OIE) 182 World Summit on Sustainable Development (WSSD) 36, 45 – 6, 47t World Trade Organization (WTO) 4, 27, 73, 98, 108, 120, 178, 197 World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (WTOTRIPS) 40, 42, 44, 82, 87, 126, 182 – 3, 188, 191, 240 – 1 World Wildlife Fund (WWF) 35, 98 Young, T. R. 20 – 1