ICTSD/Biores
CBD Clinches ABS Protocol in Nagoya
"...According to
experts, some 90
percent of all
biopiracy is related
to derivatives -
“naturally occurring
biochemical
compounds resulting
from the genetic
expression of
metabolism of
biological or
genetic resources” -
rather than the
actual genetic
resources capable of
reproduction. The
inclusion of
derivatives was thus
a main demand by a
large number of
developing
countries. The ABS
protocol’s treatment
of derivatives is
far from
straightforward.
Article 2 of the
accord, which covers
terms used in the
text, includes
far-reaching
definitions of
“derivatives” and
the “utilization of
genetic resources.”
Article 3, which
sets out the scope
of the accord, on
the other hand,
makes no explicit
mention of
derivatives.
Instead, it refers
to “genetic
resources within the
scope of Article 15
of the Convention”
and “the benefits
arising from the
utilization of such
resources”. However,
whether Article 15
of the CBD covers
derivatives is the
subject of
disagreement between
developing and
developed countries.
On the other hand,
“benefits arising
from the
utilisation” of
genetic resources
could be interpreted
to cover
derivatives.
“Utilisation” is
also mentioned in
Article 4, which
covers fair and
equitable
benefit-sharing.
Also unclear was the status of genetic resources that had been taken out of their place of origin prior to the entry into force of the ABS protocol. Some parties to the CBD feared that a large number of cases could fall outside the Protocol’s scope without some sort of retroactive protection...."
