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States are strongly mobilizing on the (…)

All living organisms are protected by the Convention on Biological Diversity (CBD) under the term ” genetic resources » [1]. The CBD requires any public or private laboratory to obtain two agreements from the State where an organism is located, and possibly from the communities that have preserved it: a first to ” to access and a second to transfer it out of the country. The CDB also imposes a sharing of profits from the marketing of products made through this organization with the State or the community. This convention was adopted in an attempt to put an end to the looting of biodiversity. The recent development of low-cost sequencing means that an increasing number of living organisms are sequenced. The genetic sequences obtained are computerized in public or private databases. Since 2016, the signatory states of the CBD have been discussing whether using the sequence of all or part of the genome of a Mexican corn plant, for example, or of a fish typical of the waters of Senegal, amounts to using corn or the fish itself. In other words, to find out whether the rules governing access to biodiversity apply to digitized genetic sequences (known by their acronym DSI for Digital Sequence Information) from this biodiversity.

Fifty-nine speeches

In 2019, sixteen countries or groups of countries [2] spoke at a CBD meeting. In 2021 [3], they are three times more to have expressed themselves. Thus, 59 speeches from countries or groups of countries took place during two sessions (end of August 2021 and end of March 2022) [4]. Jordan summed up the reason why the speaking outs have multiplied so well. This country has in fact recalled that genetic resources “ are the valve to global food security and a source of many unique pharmaceutical and therapeutic compounds ” and ” many countries, including Jordan, are fully aware of the consequences of making this information available on the Internet without a legal framework similar to the framework for the equitable sharing of benefits arising from the use of this information “. 46 States, whose interventions are available online [5]emphasize that DSI are genetic resources and call for regulation and benefit sharing.

A majority of countries in favor of benefit sharing…

This is how the group Africa ” said ” unacceptable that DSI created from genetic resources under our sovereign control may later be used commercially without fair and equitable sharing of benefits “. He thus proposed that the economic advantages linked to the exploitation of biological resources should be collected through a 1% markup on retail sales of consumer goods resulting from the use of genetic resources in developed countries “. This collection system would only apply if prior consent and transfer agreements are not implemented. [6]. If this proposal from the group Africa was not retained, he warned that he would use current contractual arrangements (if they already exist in national legislation) on benefit sharing to prohibit any registration of DSI in computer databases that would not allow not to identify the country of origin for example.

The group ” Latin America and the Caribbean » [7] has recalled ” the sovereign right of countries over their natural resources including genetic resources “. For him, there is an intrinsic relationship between DSI and genetic resources “. Thus, any benefit derived from the use of DSI must be shared fairly and equitably. He therefore considers it important that different methods are studied and that the national measures already in place and covering ISDs are “ strongly ” taken into account.

The group ” Asia Pacific did not defend such a clear position. His rather general statement is probably due to the fact that the national positions within this group are quite varied, ranging from a framework with sharing of the benefits to a complete disconnection between DSI and genetic resources. Nevertheless, this group stresses that the issue of DSI is important for this region of the world and in particular the link with the benefit-sharing mechanism. His will is to develop a constructive dialogue to establish how to make the [mécanisme de partage des avantages] more sustainable “.

…and a minority for open access

Faced with the thirty countries wishing to share the monetary benefits linked to the use of DSI, a dozen have expressed the importance of the latter for research.

Thus, the group European Union and its Member States recalled that “ the generation, access, analysis and use of DSI can have a significant positive impact on the conservation and sustainable use of biodiversity “. For the European Union, any solution found should therefore not impede free access to DSI or research. Indeed, it seems important to him that the future agreement should encourage the use of DSI and, above all, avoid imposing ” unnecessary monitoring, tracing and tracking requirements, which would significantly reduce the cost-effectiveness of a possible solution “.

The European Union considers that the generation of DSIs, and their free access, is in itself a non-monetary benefit for the countries of origin. She declared herself ” interested in exploring various policy options preserving open access (to CIOs) based on a multilateral approach “.

Like Israel, the United States – non-CBD signatories – consider that “ any solution limiting the circulation (of DSI) could create obstacles to scientific cooperation and skills transfer “. A position to which Japan is close, which even considers that ” the agreement cannot override the contractual freedom between a supplier and a user who have adopted a mutual agreement, an agreement which is confidential “. South Korea agrees with this analysis but said it is open to discussions around policy options for benefit sharing. Finally, Switzerland, home to several important DSI databases, ” does not support the extension of the term “genetic resources” to CIOs (…) but supports all constructive, applicable, effective considerations (…) to manage CIOs as long as it does not interfere with their free use.

Canada seems to have distinguished itself from countries strongly ” developed ” in ” recognizing the role of indigenous peoples as custodians of biodiversity and that their involvement in research related to DSI and benefit-sharing needs to be increased “. But this does not say whether CIOs should be subject to benefit sharing or not.

In the end, most countries emphasized the importance of CIOs remaining accessible. But, as explained by South Africa or Costa Rica, ” any advances enabled by open access CIOs should not preclude monetary benefit sharing “. Among other speeches in this direction [8]Malaysia, which along with Brazil has already incorporated ISDs into its national legislation (see box below) was equally affirmative, emphasizing that the fairness of economic development enabled by ISDs will be ensured if these ” DSI are recognized as sensitive marketing information “.

Brazil and Malaysia have already legislated

Malaysia explained that in 2017 it incorporated DSI into its national legislation. Similarly, Brazil recalled having done so to protect them from any misuse. This Brazilian legislation led him to ” grant 2,600 access authorizations and 295 benefit-sharing agreements (on genetic resources) including cases using exclusively DSIs “. For Brazil, the negotiations must now move forward, this country noting that ” the most intensive economic sectors in biotechnology have had the strongest growth in the past decade. The added value of the bioeconomy and the intellectual property rights in this sector have grown rapidly. As a result, [le partage des avantages] and CIOs are not trivial issues “.

Several countries want the geographical origin of CIOs

Above all, several countries have addressed the question of geographical origin. Without this information, it would indeed be impossible to share the benefits obtained with the countries of origin. It is for this reason that countries such as Turkey, Mexico, Jordan, South Africa, Colombia, Guatemala, Bolivia, India, Ethiopia, Uganda or Costa- Rica have underlined their wish that this origin be informed in one way or another.

China succinct, Russia wants national management

Silent on the subject until now, China and Russia spoke during this third session. China has been very succinct and wishes ” a balanced way to solve this question “. Russia believes that a unified regulatory structure for all in this area is still unrealistic “. This country prefers the national route, a ” option where each country develops its own legal framework in this field (…) on the basis of common approaches “.

Formally, this third session of the CBD working group did not result in a decision to settle the debate [9]. Discussions will continue. The fourth session of the Open-ended Working Group on the Post-2020 Global Biodiversity Framework will be held from 21-26 June 2022, in Nairobi, Kenya [10]. More formally, the Convention of the Parties to the CBD still planned for Kunming in China, without a specific date to date, will also deal with this question.

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