Bridges Trade BioRes • Volume 7 • Number 2 • 2nd February 2007
ABS EXPERTS FLESH OUT CERTIFICATE OF ORIGIN
ABS EXPERTS FLESH OUT CERTIFICATE OF ORIGIN
Biodiversity experts recently met to discuss options for introducing an international certificate of origin for genetic material. The certificate would serve as a tracing mechanism to ensure transparency in the flow of such resources.
The group of technical experts on an internationally recognised certificate of origin/source/legal provenance met in Lima, Peru from 22-25 January. The meeting explored ways to create an internationally recognised certificate of origin to comply with Convention on Biological Diversity (CBD) requirements on access and benefit sharing (ABS) and to promote the use of indigenous knowledge and equitable benefit sharing.
A certificate of origin is a type of ‘passport’ or ‘permit’ that would accompany a genetic resource along the whole chain of the ABS process, from the collection phase to the marketing of a resultant product. The certificate could be verified at different points, including once the genetic resource has left the provider country. The main objectives of an internationally recognised system would be to ensure the traceability of genetic resources, increase transparency, provide legal certainty to ABS arrangements and facilitate the flow of genetic resources. In addition, it could help combat biopiracy, which refers to the misappropriation — generally by means of patents — of indigenous or traditional knowledge by foreign entities without compensatory payment.
The group of technical experts on a certificate of origin was established through a decision at the latest CBD Conference of the Parties (COP-8, see Bridges Trade BioRes, 3 April 2006, http://www.ictsd.org/biores/06-04-03/story1.htm) in order to provide input to the ad hoc open-ended working group on access and benefit-sharing. Twenty-five experts, representing all geographic regions and including observers from botanical gardens, indigenous communities and industry, took part in the Lima meeting.
Form and scope of the certificate
The group of technical experts set out to identify different options for a certificate of origin, their feasibility and related implementation challenges, as well as their potential costs and benefits. In doing so, they sought to find the right balance in developing a system that benefits both users and providers of the genetic material.
At the meeting, the Australian government proposed focusing on a ‘certificate of compliance,’ meaning a certificate confirming that the ABS rules of the country of origin had been complied with. Most participants felt that such a certificate should be supplemented with checkpoints in order to verify compliance. Participants stressed that a certificate of compliance should not make reference to compliance with ABS legislation in the source country of the genetic resource but instead refer generally to ABS protection schemes, whether by legal means, administrative orders or otherwise. The CBD does not require a particular form of implementation with regards to ABS, and countries have adopted various systems. Many developing countries still need to install ABS schemes into their national legal system, and some experts noted that an international certificate scheme might serve as an incentive for their development of national legislation.
Participants also discussed whether the system should be voluntary, mandatory or a mixture of both, without reaching any conclusions at this point. Some participants noted that the higher the level of legal certainty and predictability, the more benefits providers and users would get from the certification scheme.
Other topics of discussion included the form and content of the certificate, as well as the appropriate points to verify that the obligations connected with the certificate had been complied with. The expert meeting identified two different checkpoints as likely to be most effective: at the patent office simultaneously with patent registration; and at the point of marketing approval assessment. The latter option would indicate the commercial benefits the genetic resource might generate and cover genetic resources that are not patented. Participants agreed on the necessity to limit transaction costs and bureaucracy. For this reason, they felt it was important to agree on a single competent authority.
Participants also addressed the practicality and feasibility of the different options, in particular for developing countries lacking technology and in need of financial support and capacity building. Among proposals discussed was a codification system (comparable to a patent registration coding system) linking a code to the certificate, enabling easier recognition. The code would be used to track the provider, the source, the use of the genetic resource, transfer to third parties and possible limitations.
Participants agreed on the need for an international clearing house mechanism — an international database functioning as a referral point for genetic resource holders allowing them to follow the track of their resources.
Certificate exemptions
Some participating experts raised concerns with regard to the development of an overly restrictive system, which they felt could have negative impacts on key areas of research. A particular concern related to the need for rapid access to resources in the search for a response to infectious diseases such as SARS, Ebola or the like. Most participants agreed that exemptions or waivers should be available to allow for easy access to genetic material in cases of emergency requiring a quick response so as not to impede research.
Participants also noted that ex-situ collections (such as botanical gardens or gene banks) required special attention as the certification system may become very burdensome for them, leading to increased costs without related benefits.
The experts also discussed to what extent researchers needed to comply with the certification system. Should non-commercial activity be excluded from the requirements of the certificate? The difficulty, noted one participant, was that oftentimes there is no absolute differentiation between research and commercial use — and if research is conducted on behalf of a company, a certificate of compliance should be mandatory.
There was also discussion of the relationship between the certificate and the International Treaty on Plant and Genetic Resources for Food and Agriculture (FAO treaty). A majority of the experts favoured leaving the resources covered by the this treaty outside any certificate system.
Next steps
Overall, a number of participants felt that the meeting of the expert group had progressed in a positive spirit, and interpreted this as a sign of success for the future of a certificate of origin.
The meeting report will serve as technical input at the fifth meeting of the CBD ad hoc open-ended working group on access and benefit-sharing, scheduled to be held in Montreal, Canada from 15-19 October this year. The working group is the forum for negotiations on an international ABS regime, set to be completed by 2010. The certificate of origin would covers one aspect of such a regime.
ICTSD reporting.