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International Waters: European Parliament Backs New Benefits and Genetic Resources Rules

Posted: March 27, 2014, 10:45 a.m. EDT


By John Dawes

The European parliament and council have been discussing the numerous implications, complications and all other issues associated with the Nagoya Protocol on access to benefit sharing and use of genetic resources for many months now.

This protocol contains the so-called "pay-to-breed” component in which breeders and propagators of genetic resources (including ornamental fish and aquatic plants) would need to pay some form of fee or secure a license to the respective countries of origin of these resources in order to exploit them.

I have discussed many of the complex issues involved in this process on numerous occasions in past editions of this column. For the benefit of new readers, here is a brief snapshot.

Under the protocol, the countries of origin of the genetic resources being exploited would receive payment from the users of these resources. For example, Sri Lanka would receive compensation for the exploitation of the black ruby barb (Pethia nigrofasciata; formerly Puntius nigrofasciatus), the beautiful ornate paradisefish (Malpulutta kretseri), the fire rasbora (Rasboroides vaterifloris) and all its numerous other endemic aquarium fishes. However, as many of the country’s fish species have been captive bred in other countries over generations, complications arise regarding the timing and other aspects of the fee/license. Similarly, where a species is known to occur in more than one country, e.g., guppies, or where the origins of captive-bred stocks cannot be traced with any certainly, it is uncertain who pays the fee/licence, and to whom.

Black Ruby Barb
The black ruby barb (Pethia nigrofasciata) is endemic to Sri Lanka but has been captive bred in several countries for home aquaria, making the application of benefit-sharing somewhat complicated to implement. John Dawes

The European Environment Committee backed (on Jan. 22, 2014) an earlier agreement struck by European Union (EU) parliament and council negotiators on access to genetic resources and benefit sharing, as well as the appropriate use of the traditional knowledge possessed by indigenous peoples.

European parliament Green Member Sandrine Bélier, a major driving force behind the move, admitted that the negotiations had been "very difficult” and that the final text was "less ambitious” than she would have liked. The mere fact that an agreement has been reached will allow Europe to participate in the next Conference of the Parties (CoP) of the Convention on Biological Diversity (CBD), which is due to be held in Pyeongchang, Republic of Korea, Oct. 6-17, 2014.

While the agreement might not be as ambitious as Bélier and her colleagues would have wished, it places a series of obligations on EU member states. For example, it will oblige users—from private collectors to companies to academic/scientific institutions and researchers—"to check that genetic resources and associated traditional knowledge have been accessed legally and that the benefits are shared fairly and equitably, on the basis of mutually agreed terms.” A genetic resource is deemed to be "genetic material of plant, animal, microbial or other origin of actual or potential value.”

Users also will be required to obtain an international certificate of compliance "in order to prevent illegal access to resources.” All collections, which act as "major suppliers of genetic resources and associated traditional knowledge” must now be entered in an EU register to be set up and maintained by the European Commission (EC). European member states also will "designate authorities to verify compliance by users of genetic resources with the legislation and will also establish penalties for infringing the rules.”

This legislation is necessary in order for the EU to ratify the Nagoya Protocol and incorporate it into EU law. Once the vote has been passed (it is assumed it will without incident), the European council "will adopt a final decision” on it. This date has not been fixed because it will coincide with the date on which the Nagoya Protocol itself comes into force. No one knows when this will be, because the protocol has not yet been ratified by 50 CBD parties (countries). The CBD authorities hope that this figure will have been achieved by the time the above-mentioned CoP in October comes around.

As the European Seed Association (ESA) believes, the very nature of the agreement makes it a cumbersome tool with many unclear aspects. In the ESA’s words, "all users … will have to assure and seek information to prove that the genetic resources they utilize have been accessed in accordance with applicable Access and Benefit Sharing (ABS) rules. They will also have to keep and transfer such information to all subsequent users. Users will then have to declare at the point of ‘final stage of development’ that they have exercised their due diligence. The regulation allocates the unclear task of defining the meaning of ‘final stage of development’ for the different sectors concerned to the EC. Regular checks by national authorities on users’ compliance will then be carried out.” It also is foreseen that users will need "to elaborate sectoral best practices and get those recognized by the EC.”

According to the ESA, the new agreement fails to strike a fair balance between suppliers and users. It also "fails to recognize the way plant breeding works in practice” where "every newly developed plant variety is the result of a combination of thousands of genetic resources coming from all over the world.” Consequently, it has "always functioned as an open source system, based on free access by anybody to all plant genetic resources for further breeding.” Breeders therefore think that, under the agreement, access "will no longer be free” and that this "would specifically impact small- and medium-sized breeding companies.” Obligations under the agreement and, of course, the Nagoya Protocol, must not therefore "put unreasonable burden on the sector and require it to change the way it has successfully worked since centuries.”

The above is mentioned in some detail because although the development of new varieties of ornamental fish and aquatic plants does not involve "a combination of thousands of genetic resources,” or has been in operation "since centuries,” many parallels exist between the two sectors. It seems sensible for our sector to establish contact with the ESA and other similarly affected industries, which, despite their very different markets and products, nonetheless appear to share a number of challenges when it comes to having to live with the universally accepted noble principles of the protocol.

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