FAIR AND EQUITABLE: WHERE DID THEY GO?

During the first week of October, an experts panel meeting on access and benefits distribution was held in Costa Rica. The very composition of this 50-member panel should already be an issue for us to reflect upon: many came from the industrial sector or botanical gardens in countries which are not well endowed with biological diversity. Some of the experts from the government sector upheld contrary positions to their own national interests, and local and indigenous communities were altogether absent. It is of no small significance that those who have nurtured, preserved, and reworked the biological diversity to which access is being sought, were not even invited to the meeting. The excuse for not doing so was given at the last Conference of the Parties: the mandate was to convene a panel of ‘experts,’ not community representatives. We should keep in mind that there are actors around the world for whom the biodiversity-associated knowledge of these communities is not important, as some of the standpoints with respect to intellectual property rights indicate.

The agenda was dealt with by two working groups. One addressed the issue of access agreements and the distribution of benefits for commercial and scientific purposes. The other dealt with a review of current measures, policies and legislation. Both groups were charged with addressing issues of capacity building. It took two whole days to arrive at this point, owing to the fact that the Secretariat did not forward a clear proposal as to the desired outcomes for the meeting, and given the confusion reigning among the experts about their mission.

Among the most interesting recommendations produced by the panel were the following:

1) Agreements on access and benefit sharing:

Given the lack of legislation on the matter, these instruments are currently the most important mechanisms for securing access to biodiversity and the distribution of the benefits derived from it. Development of an over-arching legal framework must be consistent with the CBD goals, whereas many existing agreements are merely mechanisms for negotiation. Another aspect that was particularly emphasised was that of developing the capacities of local communities to participate in the negotiation of such agreements on equal grounds. This raises some important questions. If access is permitted, who is going to facilitate the development of these capacities? Where will the emphasis be put: on protecting community rights and the environment, or on facilitating access and developing negotiation skills?

2) Legislation:

This must be consistent with CBD goals, and would be most appropriately based on national biodiversity strategies that include strategies for access and benefit distribution. The use of the definitions contained in the CBD was recommended by the panel, and these should be delimited by a group of experts. It seems critical that other legal instruments relating to human/community rights such as ILO’s Agreement 169 must be considered in developing such legislation. The legislation must be plain, simple, and flexible so that it does not restrict access. This does not mean it should be weak though, and it must be congruent with other legislation on Human Rights. The legislation needs to be developed with the participation of all sectors of society, and it is therefore important to create the necessary conditions to guarantee equal opportunities for participation. I believe that this principle should be extended to the preparation of national biodiversity strategies. Moreover, it should strengthen the various sectors of society, most particularly providing local communities with new instruments to defend their rights. In addition, each country should enjoy the freedom to defend its national interests, as with any legislation.

3) Prior informed consent (PIC):

This is an important mechanism because it can ensure full community participation in decision making. The panel concluded that prior informed consent from local and indigenous communities is contingent to the acknowledgement of their rights, knowledge, innovations and practices, and therefore the development of sui generis legislation should be taken into consideration. This is an important step towards protecting community rights, because Human Rights will then take effect. But the lack of legislation in this arena is no excuse for ignoring PIC at this stage, given that other international legislation already exists requiring such action to be taken.

4) Intellectual property:

The European Union delegate – a patent expert – tried to prevent the meeting from discussing this issue. The discussion did go ahead, but the panel was not able to arrive at any conclusions. Among the more interesting issues discussed were the need for an in-depth exploration of the role of intellectual property in relation to prior informed consent, and the need to study certain aspects related to traditional knowledge. It was agreed that sui generis systems need to be developed to protect traditional knowledge. The issue proved to be polemic and illustrated the widely differing interests around the subject (economic, community rights, etc). These diverging views underline the need for continued study to arrive at the best decisions.

In the last day’s session the author and another observer were asked by the co-chair of the meeting not to participate in the discussions about intellectual property. He said that the views we had previously expressed on that matter during the meeting had already been clearly stated, and that he feared they would jeopardise the success of the panel. This made us ask what was being defended during this meeting? The different interests were evident as they had been from the beginning. Finally we did speak, the world did not fall apart, and the meeting came to its end. The co-chair’s threats made us realise that during the whole meeting we had been talking about access and distribution of benefits, but where did the fair and equitable adjectives go?

Isaac Rojas is a lawyer, member of the Asociación Comunidades Ecologistas La Ceiba (Friends of the Earth Costa Rica) and representative for the environmental sector at the Biodiversity Management Commission. He was present at the experts meeting as an observer. E-mail: [email protected]