By Christian J. Martinez, Assistant Contributor
On October 29, 2013, three years will have passed since the adoption of the Nagoya Protocol (“Protocol”) to the 1993 Convention on Biological Diversity (“Convention”). As of October 1, twenty-five nations ratified the Protocol, the most recent – Bhutan, Côte D’Ivoire, Guinea Bissau, Indonesia and Norway – accepting it during the United Nations Treaty Event in New York. According to its terms, the Protocol will go into effect upon its ratification by fifty nations.
The objectives of the Convention on Biological Diversity are the:
- Conservation of biological diversity,
- Sustainable use of its components, and
- Fair and equitable sharing of the benefits from genetic resources, including by access to genetic resources and transfer of relevant technologies.
There are 193 members of the Convention. The United States signed on to the Convention on June 4, 1993 and is one of only three other countries – Andorra, Holy See, and the South Sudan – that have not yet ratified the treaty. The Nagoya Protocol is a supplementary agreement to the Convention and it provides a framework to implement the third objective listed above: the fair and equitable sharing of benefits arising out of the utilization of genetic resources and more broadly out of the utilization of traditional knowledge.
Only four members of the G20 signed and ratified the Protocol. The United States and China, the two largest economies, are not signatories.
The eleventh meeting of the Conference of the Parties to the Convention on Biological Diversity (“Conference”) occurred in Hyderabad, India on October 18-20, 2012. The Conference is the governing body of the Convention and is in charge of its implementation. According to a Conference report, the United States sent a delegation which remarked on several agenda items relating to island and coastal biodiversity as well as climate-related studies. The report also notes that the United States objected to a decision recognizing the relevance of geoengineering work already done under the auspices of the Kyoto Protocol and other treaties.
President Obama has remained largely non-committal to seeking ratification of the Convention or to signing the Nagoya Protocol. However, there are signs that the administration may push to ratify the treaty before the end of President Obama’s second term, as indicated by the Obama Administration’s position on genetic resource cases before the Supreme Court.
In 2013, the United States Justice Department filed an amicus curiae brief arguing against the patentability of isolated and unmodified DNA. Interestingly, the Justice Department acknowledged a shift in its own position and a divergence from United States Patent and Trademark Office Guidelines, which it previously defended, noting that the United States has since reevaluated “whether such patents are consistent with the settled principle that patent protection does not extend to products of nature.”
Perhaps the Justice Department’s position on the patentability of isolated genes indicates a willingness to accept the Convention’s broader goals, not only concerning genetics, but biological resources overall. With the Senate currently working with the aftershocks of a shutdown, it is unlikely that they will pick up the Convention or the Nagoya Protocol as a priority item, especially given that it has remained dormant since 1994.
The stakes are high. In a 2009 report by Business Communications Company, the global market for botanical and plant-derived drugs predicted an increase from $19.5 billion in 2008 to $33 billion in 2013, a growth rate much more aggressive than that of the Protocol’s signatories.
The Convention on Biological Diversity and the Nagoya Protocol are the main instruments to protect and regulate bioprospecting, the development and commercialization of new products based on biological resources, which often relies on indigenous knowledge and use of plants and animals. Section 8(j) of the Convention provides for “equitable sharing” of such traditional knowledge, a remarkably short and plain statement for such a large and complex task.
However, with the rest of the world already looking forward to the Nagoya Protocol or achieving its objectives using bioprospecting agreements, and given the Justice Department’s high-profile position on patentability of isolated genes, perhaps the United States will renew its push for a ratification of the Convention and the Nagoya Protocol.