Federal Department of the Environment,
Transport, Energy and Communications DETEC
Federal Office for the Environment FOEN
Division

A Swiss perspective addressing ABS
Robert Lamb
(CBD&ABS National Focal Point for the
CBD)
Swiss Federal Office for Environment(FOEN)
Expert meeting in Tokyo addressing ABS
challenges, Tokyo, 8 – 9 February 2007

Content• The main Bones of contention• Back to the basis (or the“basic“) toward a possible
agreement• Issues / questions and options for an Intern. regime• The use / integration of existing international
instruments• Possible specific and “transversal“ measure andoptions for an International regime• Brief remarks on possible ways to make progress inthe process of negotiation

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Author

2

I The main Bones of contention• On the nature : « the intern. regime could becomposed of one or more instruments….legally and/or non binding »• On the objectives : on the framework concept
weather the regime should facilitate or regulate theaccess• On the scope : what types of genetic resources ?
(how to define it , should it include derivatives?)• The relationship with other agreements andprocesses (FAO, WTO/IPR, WIPO)• On how to adress / define traditional knowledege
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Author3

(I Contention issues)
On a general mechanism to ensure the fundamental
requirements of the CBD which are the Prior inform
Consent (PIC) and the Mutally agreed terms (MAT)•

issue of the disclosure of origine•

Internationally recognized certificate oforigine/source/legal provenance

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Author4

(I contention issues)
Concerning the condition /distribution of the fair andequitable benefit sharing (BS) :Schould it be included/stipulated in the international
regime ?
Therfeore• Should it be included it the MAT ?
• Should benefits arrangements serve (also) the
conservation of biodiversity ?

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Author5

(I Contention issues)
Should we have a Compliance and enforcement
Mecanism ?
• Should it be linked with patent application ?
• Should it include misapropriation and if yes how todefine it ?

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Author6

(I) The Polarized options / Points of divergence
could be summarized by two core genericissues :While several countries act as « providers and users »• « Providers » countries push for a legallybinding regime that emphasize misapropriationand misuse of GR• Countries regarded as « users » with someothers suggested a regime consisting of a serieof « instruments »Presentation name | Subtitle
Author7

II Back to the Principles andobligations agreed relating to ABS
Article 15:• Sovereign rights of States over their natural resources• Parties to facilitate access to genetic resources• Access subject to prior informed consent and granted on
mutually agreed terms• Parties to take measures to share benefits fromthe utilization of genetic resources, on mutually agreed terms• Each Party endeavours to develop and carry out scientificresearch on genetic resources with full participation of theprovider country

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Author

8

II Articles 16 and 19:- priority access to technologies by Parties providing genetic
resources+- sharing of the results and benefits
arising from biotechnologies based upon
genetic resources provided by these Parties

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Author9

II Back to the Terms of reference (TOR) for
the International Regime (IR)Establishment of an open ended AHTEG group withthe following mandate to negotiate an IRWith• A Process based of the analysis of existing
instruments , the experience , a gap analysis• Nature : the IR could be composed of 1 or more
instruments legally binding and / or non bindings

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Author10

(III. issues for considerations)• Is there a need for additional international tools
to support national implementation ?
What are the existing Intern. instruments ?
For which resources ?
Which kind of possible complementary mecanism could be
developed ?
•Certificate of origine/source /legal provenance (COLP)?
•
Disclosure of the source of the GR (source of obtention orsource of origine ?

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Author11

III. What are the existing and new possible
instruments?

International Regime on ABS
Protection of TK

FAO ITPGRFABonn Guidelines
Relevant instruments
WIPO, UPOV, WTO

Disclosure requirement(international)

Action Plan on
Capacity-building
Presentation name | Subtitle
AuthorCertificate of origin/source/legal provenanceCompliance mechanisms
12IV The main relevant exixting
international instruments• The Bonn guidelines• The International treaty on plant and genetic
Ressources for Food and Agriculture (ITPGR)• The World Intellectual Property Organisation System(WIPO) with Patent Treary Cooperation (PCT)

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Author13

IV BONN GUIDELINES

Voluntary guidelines to assist Governments andstakeholders when: Establishing legislative, administrative or policy
measures on access and benefit-sharing Negotiating contractual arrangements for accessand benefit-sharing

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Author

14

IV BONN GUIDELINES

I.
General Provisions
II.
Roles and responsibilities in ABS
III.
Participation of stakeholders
IV.
Steps in the access and benefitsharing process
V.
Other provisions

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Author15

IV BONN GUIDELINES
Scope
 all genetic resources and TK
 exclusion of human genetic resources

Relationship with relevant international regimes
 coherent and mutually supportive
 without prejudice to the ABS provisions of the ITPGRFA

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Author16

IV BONN GUIDELINESSTEPS IN THE ABS PROCESS• Overall strategy• Prior Informed Consent
 Basic principles of PIC
 Elements of PIC• Mutually Agreed Terms
 Basic requirements for MAT
 Indicative list of MAT
 Benefit-sharing

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Author17

IV Bonn Guidelines : MUTUALLY AGREED TERMS
and BENEFIT SHARING
BENEFIT-SHARING• Types of benefits
 Monetary and non-monetary benefits (Appendix II)• Timing of benefits Near-term, medium-term, long-term (up-front payments,
milestone payments, royalties)• Distribution of benefits Fair and equitable• Mechanisms for benefit-sharing Flexible, vary on case by case basis
 Cooperation in scientific research and technology
development, trust funds, joint ventures

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Author18

IV Bonn Guidelines :ROLES AND RESPONSIBILITIES OF USERS
AND PROVIDERS

 Contracting Parties providing the genetic resource Providers
 Users
 Contracting Parties with users of genetic resources
under their jurisdiction

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Author19

IV Bonn Guidelines : ROLES AND RESPONSIBILITIES OF USERS
AND PROVIDERS

Contracting Parties providing the genetic resource:• Ensure compliance with Article 15• Ensure that commercial or other use does not prevent traditional use ofgenetic resources• Fulfil their roles in clear, objective and transparent manner• Ensure stakeholders take into account environmental consequences of
the access activities• Mechanisms to ensure that their decisions are made available to relevant
I&LC• Measures to enhance I&LC negotiating capacity

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Author20

IV Bonn Guidelines :ROLES AND RESPONSIBILITIES OF USERS
AND PROVIDERS

Providers should:• Only supply genetic resources or traditional knowledge whenentitled to do so• Avoid imposition of arbitrary restrictions on access to genetic
resources

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Author21

IV Bonn Guidelines : ROLES AND RESPONSIBILITIES OF USERS
AND PROVIDERS

Users should:• Seek Prior Informed Consent• Respect customs, traditions, values and customary practices of I&LC
• Only use genetic resources for purposes consistent with terms andconditions under which they were acquired• Maintain all relevant data
• When supplying to third Parties, honour terms and conditions• Ensure fair and equitable sharing of benefits

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Author22

IV Bonn Guidelines : ROLES AND RESPONSIBILITIES OF USERS
AND PROVIDERS

Contracting Parties with users under jurisdiction:• Info to potential users on their obligations• Encourage the disclosure of country or origin of GR or TK in IPRapplications• Prevent use of GR without PIC• Cooperation to address alleged infringements• Voluntary certification systems• Discouraging unfair trade practices• Other measures

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Author23

IV BONN GUIDELINES• Recognised by Parties as a useful first step
• Implementation kept under review• The need for their further refinement is to beconsidered on the basis of relevant work

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Author24

IV The International Treaty on Plant Genetic
Resources for Food and Agriculture
The status of the Treaty• Negotiated by 164 member FAO Commission on
Genetic Resources for Food and Agriculture• Adopted by the FAO Conference by consensus
in November 2001
• Entered into force on 29 June 2004•

At present (nov 06), 105 States and EC are Parties• Standard Material Transfer Agreement to operate (2006)

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Author25

IV The International Treaty on Plant Genetic
Resources for Food and Agriculture
Main Achievements of theTreaty (1)• The Multilateral System of Access and Benefit
Sharing– List of 64 crops chosen (Annex 1) on basis ofimportance for food security and interdependence– PGRFA under management and control ofContracting Parties and in the public domain– Contracting Parties to invite other holders of PGRFA
to place in Multilateral System
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Author26

IV The International Treaty on Plant Genetic
Resources for Food and Agriculture
Main Achievements of theTreaty (2)•A Multilateral System of Access and Benefit
Sharing with law costs• Multilateral agreement on rules regarding facilitatedaccess• Multilateral agreement on rules regarding
benefitsharing with Standard Material Transfer
Agreement (MTA, 2006)
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Author27

IV The International Treaty on Plant
Genetic Resources for Food andAgricultureStandard Material Transfer Agreement (MTA) and BS• First concrete global tool to implement benefit sharing• Mandatory monetary Benefit Sharing : If a product incorporates material from
the Multilateral System is commercialized in such and is not “available without restriction toothers for further research and breeding” a mandatory payment will be made :1,1 % the gross income of the gross sales of seeds•

Voluntary monetary Benefit Sharing for research and breeding If the material

available without restriction to others, payment is voluntary• These moneys will be used in the context of the Treaty’s Funding
Strategy

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Author28

Federal Department of the Environment,
Transport, Energy and Communications DETEC
Federal Office for the Environment FOEN

V . “ Possible Transversal measures” :Issue of the Certificate of origine/source/legal provenance
1. Rationale, objectives and need•To ensure traceability of genetic resources an increasetransparency•

To ensure compliance with CBD ABS provisions andaccess requirements•

To provide legal certainty and predictability for users•

Large variety of users of genetic resources (GR) to
be borne in mind

V. Issue of the Certificate oforigin/source/legal provenanceDistinction between the options for a certificate system• Certificate of origin
Country of origin of genetic resources possesses genetic resources in situ (Art. 2 of CBD),??issued by CAN of country of origin ??
Difficult to implement• Certificate of legal provenance
Evidence that the resource accessed in conformity with the access requirements of the providers country
in accordance with art 15
Rem. :could only be issued by countries which establish legal requirements• Certificate of source
Country of origin or countries that have acquired genetic resources in accordance with

CBD (Art. 15.3)

Issued by CNA of country of origin or source country, more feasible
Important issue : Certificate system and traditional knowledge
The issue of whether or not a certificate system should cover traditional knowledge associated with GR
has not yet been closely examined
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Author30

(v.) Potential characteristics and features

Nature:Voluntary or mandatory
Scope
Will the certificate apply to a genetic resource acquired after the CBDcame into force but before thenew system is implemented?
Will biological materials, such as chemical extracts and essential oils,
be freely useable without a certificate?
Will the system cover genetic resources and knowledge/information
derived?
Some argue that certificate could only be attached to physical property
Others argue that it should apply to GR and information or knowledge
derived from these resources
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Author31

(V. Transversal measures )Information contained in the certificate• Particulars of provider and user
• Details of GR / (and or TK)• Details of approved use of GR and restrictions on
use• Period of the agreement• Conditions of transfer of rights to third parties• Details of issuing authorities• Taxonomic identification• Issuing date
• Information for the identification of the material
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Author32

(V. Transversal measures )Form• Paper, code, virtual online system?
• Internationally recognised format – not necessarily
standardized• Simple, homogeneous, practical• Security measures for the verification of its
authenticity• Easily verifiable• Entail low administrative costs

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Author33

(V. Transversal measures )The Ideal Certificate
An Internationally recognised format applicable to allkind of Genetic Resources is needed
But : not necessarily standardized in order to allow
enough flexibility to be applicable for :• the various category of Genetic resources and• to the specific needs OF DIFFERENT users andprovidersPresentation name | Subtitle
Author34

Federal Department of the Environment,
Transport, Energy and Communications DETEC
Federal Office for the Environment FOEN

(V. Transversal measures )Possible Synergies with IPR
Proposals by Switzerland on Declaration of Source
within the frame of the PCT at WIPO to address thequestion / request to link the access with IPR andpatent application ?

Switzerland proposes …

… to explicitly enable States to require disclosure of source ofgenetic resources and related traditional knowledge in patentapplications
 Amendment of WIPO’s Patent Cooperation Treaty (PCT)

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Author36

Switzerland proposes …

… that requirement can be fulfilled already in international
phase

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Author37

Switzerland proposes …

… to include declaration of source in international
publication of patent application

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Author38

Switzerland proposes also …
… to establish on-line list of government agencies competentto receive information on declaration of source (“notification”)

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Author39

The Concept of the Source

A multitude of entities may be involved in access and benefit
sharing Broad concept of „source“ of genetic resources andtraditional knowledge

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Author40

Advantages of
Optional National Introduction
1. Faster international progress
 Gain experience without prejudice to further
international efforts
 Build with existing national provisions
 No additional obligations/ burden for developing
countries

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V Options to develope an IR
A framework /Umbrella covering a set of existing legallybinding (FAO Treaty )and non binding instruments such (BonnGuid.) for all GR
andsome specific measures to operate the PIC such as :•Certificate of origine/source/legal provenance; Decl.
of origine (for patent)•

Capacity building•

Financial mecanism(s) (eg Global crop diversity Trustestablished within the frame of the Intern. Treaty on Plant
Genetic Resources)

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Author42

V. OUTLINE OF CURRENT EFFORTS and PRIORITIES FOR an
ABS REGIME FOR SWITZERLAND

Priorities
 Integration of the International Treaty on PGR in the regime
 To work toward the effective implementation of the Bonn
Guideline as an integrated part of the regime
 To work toward an effective system enabling the PIC
implementation : a certificate of source with a flexible format
to meet the various needs of the different kind of GR to include explicitly in the PCT /WIPO system the declaration ofsource in international publication of patent application as
optional Participative approach addressing the various sector ofproviders user needs
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Author43

(V.) Parties have to cooperate at national and international level with theProfessional Organizations and stake holders to define adequate sectorial
measures (such as the elaboration of a certificate of source/legal provenance/origin)

Party and Professional Organizations
Botanical Gardens
and ex situ collections

Public Research

Industry

Breeders

NGOs ?

Sectorial
Measures

Information

IPEN, International
Plant Exchange
Network

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Author44

V. The implementation in Switzerland• Working group on ABS• To identify secorial measures• Swiss Academy of natural Sciences:• Botanical gardens: participation in the International net
work(IPEN)• Industry• Développement of tools to implement the Bonn
Guidelines, in particular private enterprises :• Management tool

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Author45

V. Toward an Intern. Regime

Bonn Guidelines

International Treaty
FAO

Presentation name | Subtitle
AuthorInternational
Regime?

Traditional Knowledege
WIPO ?

46

V. Toward an International Regime
Certificate
system ?
Bonn Guidelines eg Certificate of source

Others?
International Treaty of
FAO

Presentation name | Subtitle
Author

Traditional
Knowlkedege ?
WIPO
Synergies with
IPR ?

47

VI. Issue and options for consideration to makeprogress in the process of negotiation
1.

Need to recognize that presently the text is very polarized to makeprogress

2.

Need to cluster the main issues and to (re) initiate the negotiation
related with the some priority

3.

Focus on in-depth negotiatiation on ways and means to operate thePIC (option : the development of a simple and effective Certificate
system need to be elaborated)

4.

To group clusters related with major issue with the attempt first toagree on some principle based on the text of the CBD and on theBonn guidelines

5.

Elaborate a calendar and conduct organized intercessional
consultation
Explore ways and means to conduct the meeting/negotiations
through some groups of interests

6.

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Author48

• ご静聴ありがとうございました• Thank you for your attention

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Author49