A tiered approach to the marine genetic resource governance framework under the proposed UNCLOS agreement for biodiversity beyond national jurisdiction (BBNJ)

Credit for icons Icons from ‘The Noun Prjoect’: Bell by Vectors Point, Carrot vege- tables by CHARIE Tristan, Computer by ArmOkay, Shake hand by Wing, Drug by adindar, Coral by Nook Fulloption, Label by AB Designs. Declaration of competing interest The ideas and content from this article formed the basis of the In- ternational Council of Environmental Law’s Information Paper of March 25, 2019 and August 30, 2019 that were written by the first two authors and distributed publicly to delegates for the third negotiating session of the proposed UNCLOS implementing agreement on the conservation and sustainable use of marine biodiversity in areas beyond national juris- diction. The Tiered Approach concept was also presented to the ‘One Ocean’ Symposium on August 24, 2019 in New York for feedback from delegates. Marcel Jaspars is founder of, shareholder of, and consultant for ‘GyreOx Ltd’ which uses marine and terrestrial enzymes for the rapid production of complex molecules to target protein-protein interactions involved in disease. CRediT authorship contribution statement Fran Humphries: Conceptualization, Writing - original draft, Writing - review & editing. Hiroko Muraki Gottlieb: Conceptualiza- tion, Writing - review & editing. Sarah Laird: Conceptualization, Writing - review & editing. Rachel Wynberg: Conceptualization, Writing - review & editing. Charles Lawson: Conceptualization, Writing - review & editing. Michelle Rourke: Conceptualization, Writing - review & editing. Morten Walløe Tvedt: Writing - review & editing. Maria Julia Oliva: Writing - review & editing. Marcel Jaspars: Conceptualization, Writing - review & editing.Peer reviewedPublisher PD

The Future of Information Under the CBD, Nagoya Protocol, Plant Treaty, and PIP Framework

The United Nations’ Convention of Biological Diversity (and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization), the Food and Agriculture Organisation of the United Nations’ International Treaty for Plant Genetic Resources for Food and Agriculture, and the World Health Organisation of the United Nations’ (WHO) Pandemic Influenza Preparedness Framework all set out schemes for access and benefit sharing (ABS) some biological materials. This article addresses the apparent conflict between the general obligations in these agreements to disclose and exchange information and dealing with information as a resource derivative within the ABS transaction. This latter dealing is a closed domain for information under the ABS schemes where information is a resource derivative that is a part of the ABS transaction. Treating information as a resource derivative within the ABS transaction is likely to impose unnecessary and inefficient burdens on ABS trans-actions. After reviewing the recent developments, the article postulates a risk framework for valuing information as a part of the ABS transaction, or alternatively, a charge, tax, or levy to externalize the costs so that information remains available to be disclosed and exchanged promoting more and better science and research

Access and Benefit Sharing of Genetic Resources, Information and Traditional Knowledge

Addressing the management of genetic resources, this book offers a new assessment of the contemporary access and benefit sharing (ABS) regime.Debates about ABS have moved on. The initial focus on the legal obligations established by international agreements like the United Nations Convention on Biological Diversity and the form of obligations for collecting physical biological materials have now shifted into a far more complex series of disputes and challenges about the ways ABS should be implemented and enforced. These now cover a wide range of issues, including digital sequence information, the repatriation of resources, technology transfer, traditional knowledge and cultural expressions, open access to information and knowledge, naming conventions, farmers’ rights, new schemes for accessing pandemic viruses sharing DNA sequences and so on. Drawing together perspectives from an interdisciplinary range of leading and emerging international scholars, this book offers a new approach to the ABS landscape, as it breaks from the standard regulatory analyses in order to explore alternative solutions to the intractable issues for the access and benefit sharing of genetic resources.Addressing these modern legal debates from a perspective that will appeal to both ABS scholars and those with broader legal concerns in the areas of intellectual property, food, governance, Indigenous issues and so on, this book will be a useful resource for scholars and students as well as those in government and in international institutions working in relevant areas

Message in a Bottle: DNA Computers Challenge Access and Benefit Sharing Regulation

This chapter explores whether uses of biomolecular computing are likely to fall within the subject matter and scope of activities captured by the CBD’s and Nagoya Protocol’s ABS concept. Thought experiments considering a molecular tic-tac-toe automaton that uses a series of Boolean logic-gates to respond to the moves of its human opponent and a DNA hybridisation image search highlight some unique challenges and implications for users and providers of the genetic resources behind these new technologies if their activities fall within scope. The chapter concludes that DNA computers test the limits of the ABS concept and the extent to which biomolecular computers fit within the ABS concept

Finding Solutions to the Intractable ABS Problems

This chapter introduces the collection in the context of the Kunming Declaration to step up efforts to ensure the fair and equitable benefit sharing from utilising genetic resources, traditional knowledge associated with genetic resources and digital sequence information on genetic resources. The chapter concludes that at a time of new impetus in the CBD and Nagoya Protocol forums looking to the Post-2020 Global Biodiversity Framework this is an opportune time to identify and speculate about some of these intractable issues. These are some of the issues addressed by this collection

Information as the latest site of conflict in the ongoing contests about access to and sharing the benefits from exploiting genetic resources

The global movement and use of genetic resources remain vital to sustaining humankind. An enclosure or re-appropriation of these resources requiring regulated access and benefit sharing is evolving under the United Nations’ Convention on Biological Diversity and related instruments. The potential to replace the physical materials with information about those materials, including genetic sequence data, has fractured the carefully negotiated benefit sharing regulation complex. This article re-engages with this original grand bargain of access in exchange for benefit sharing, and the imperatives of transferring financial resources and technology from the technologically advanced countries of the North to the biodiversity-rich countries of the South. Public access database terms and conditions (as opposed to public domain) and collecting societies are some of the elegant legal solutions and mechanisms to address concerns about dematerialization under the current contractual approach to benefit sharing. This article concludes, however, that the tension between enclosure of information as the genetic resource and legal information sharing requirements needs more nuanced forms of benefit sharing such as taxes or levies. This is necessary to facilitate movement of not only the physical materials but also information in the access and benefit sharing bargain

Legislative, administrative and policy approaches to access and benefit sharing ('ABS') genetic resources: Digital sequence information ('DSI') in New Zealand and Australian ABS laws

New Zealand and Australia are parties to the Convention of Biological Diversity ("CED'') but not the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity ("Nagoya Protocol''). Both New Zealand and Australia have a patchwork of ABS measures consistent with their CED commitments. An overview of the various jurisdictions shows that only Queensland's ABS legislation currently expressly addresses DSI but not as a resource in its own right. This means that if Digital Sequence Information is to be captured in benefit sharing arrangements under New Zealand and Australian laws as a resource derivative within the ABS transaction, this will need to be specifically addressed in the ABS contracts

DNA Data Storage and Access and Benefit-Sharing : Testing the Limits of the Term “Genetic Resources” for Synthetic Biology

With the increased rate of data collection, there are growing problems with how to efficiently and economically store that data. DNA data storage is an option that seemed untenable until recent improvements in the ability to read, write and store data in synthetic DNA molecules. There is growing interest as to how the international access and benefit-sharing (ABS) regime created under the United Nations’ Convention on Biological Diversity (CBD) and its associated Nagoya Protocol will apply to synthetic biology, but the discussions have so far only dealt with artificially modified genetic resources that have a natural precursor from the environment. This is the first exploration as to whether ABS policies can be applied, or are likely to be applied, to purely synthetic DNA molecules that have been synthesised with the sole purpose of storing non-biological data.</p

COVID-19 Tests the Limits of Biodiversity Laws in a Health Crisis: Rethinking 'Country of Origin' for Virus Access and Benefit-Sharing

The COVID-19 pandemic raises serious questions about the operation of international agreements for accessing and sharing viruses potentially delaying emergency responses. The access and benefit-sharing (ABS) frameworks under the United Nations’ Convention on Biological Diversity and its Nagoya Protocol apply to the collection and use of the COVID-19 pathogen SARS-CoV-2. These frameworks aim to ensure countries of origin reap some of the benefits from the use of their resources. Using real-world examples, we demonstrate conceptual and definitional ambiguities relating to “country of origin” that make not only operationalising the ABS scheme for biodiversity conservation and sustainable use objectives difficult but may also undermine public health emergency responses. Understanding how COVID-19 fits (or does not fit) within ABS laws is a valuable exercise for international policymakers trying to determine how best to operationalise pathogen ABS, an issue currently under examination at the World Health Organization and critical to responding to pandemics

Rethink the expansion of access and benefit sharing

Access and benefit sharing (ABS), a policy approach that links access to genetic resources and traditional knowledge to the sharing of monetary and nonmonetary benefits, first found expression in the 1992 United Nations (UN) Convention on Biological Diversity (CBD). Predicated on the sovereign rights of countries over their biodiversity and associated genetic resources and intended to harness the economic power of those resources to create incentives for and fund biodiversity conservation, the ABS transaction was conceived to foster equitable relations between those parties providing genetic resources and associated traditional knowledge and those wishing to make use of them for research and development. Yet although challenges faced within the CBD suggest that it is time to rethink ABS, several other international policy processes under the auspices of the UN have instead been embracing the ABS approach, and are doing so largely outside of mainstream scientific discourse and attention. The resulting policies could have a major impact on how genetic resources and associated information are collected, stored, shared, and used, and on how research partnerships are configured. We highlight implications for science of the recent expansion of ABS in global policy, in particular the potential incorporation of genetic sequence data