Society for Conservation Biology

Biodiversity and the Nation State: Regulating Access to Genetic Resources Limits Biodiversity
Research in Developing Countries
Author(s): Alejandro Grajal
Source: Conservation Biology, Vol. 13, No. 1 (Feb., 1999), pp. 6-10
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Biodiversity
Genetic

and

the

Resources

Developing

Nation
Limits

State:

Regulating

Biodiversity

Research

Access

to

in

Countries

Introduction
One of the most radicalphilosophical
features of the World Convention on
Biological Diversity (CBD) was that it
assigns use and control over biodiversity to individual countries and their
states (Glowka et al. 1994). The combination of the utilitarianapproach of
Caring for the Earth (World Conservation Union et al. 1991) and recent
developments in bioteclmology, intellectual property rights, and worldtrade rules have compounded the
sense of urgency to control access to
genetic resources (Gamez et al. 1993;
Harrop 1995). Already heightened
sensibilitieswere furtherarousedwith
higlhly publicized controversies regarding patented organisms and biological products (Stone 1992; Dickson & Jayaraman 1995). Indeed,
Article 15 of the CBDon access to genetic resources originated from the
perceptions (correct or otherwise)
that developed (northern) countries
were "exploiting" the biodiversity
and genetic resources of developing
(southern) countries without appropriate compensation. This line of
thought has developed into the concept of "biopiracy" and biopiracy
laws aimed at preventing the unscrupulous use and patenting of genetic
resources by (northern) corporations
or industries. Given its social, economic, cultural, political, and scientific implications, the implementation
of Article 15 is rapidly becoming
one of the most controversial themes
of the CBD process (Mugabe et al.

1996; Caillaux 1997; Ruiz-Muller

1998).
Severalcountries have developed or
are considering legal regimes to regulate access to genetic resources. For
example, during preparations of the
fourth conference of the parties of the
CBD in Bratislava, Slovakia (May
1998), the Secretariatfor the CBD received communications related to Article 15 from several countries, including the Association of South EastAsia
Nations (ASEAN);the Andean Pact
and its member states Bolivia, Colombia, Ecuador, Peru, and Venezuela;
Angola;Argentina;Australia(including
two of its states); Brazil; Cameroon;
Egypt; Eritrea;Ethiopia; Fiji; Gambia;
Ghana;India;Indonesia; Kenya; Laos;
Lesotho; Malawi; Malaysia(including
Sabah and Sarawak);Mauritius;Mexico; Mozambique; Namibia; Nigeria;
Philippines; Seychelles; South Africa;
South Korea;SriLanka;Tanzania;Thailand; Tunisia; the United States of
America;Yemen; and Zirnbabwe.
Not all of these countries hlave enacted legislation regulating access to
genetic resources, but most are in the
process of developing such legislation, following the lead of the Andean
Pact (ThieAndean Pact, short for The
CartagenaAccord of the Andean Pact,
is a commercial trade forum between
Venezuela, Colombia, Ecuador, Peru,
and Bolivia.), Brazil, and the Philippines (Associated Press 1997; Pazzibugan 1997). Considering that Andean Pact countries may harbor as a
group the largest proportion of the
world's biodiversity (Table 1), they

perceived a need to increase control

over access to their vast genetic resources. Consequently, in July 1996
the Andean Pact countries were
among the first in the world to approve a resolution for a common regime for access to genetic resources,
called Decision 391 of the Cartagena
Accord (Gaceta Oficialdel Acuerdo de
Cartagena 1996; Ruiz-Muller 1996,
1997).

Regulating Access to
Genetic Resources
Although each legislative project has
its own nuances and regulations,most
laws on access to genetic resources
declare genetic resources as each
country's national patrimony and provide a legal framework that emphasizes the control of soverign states
over access to biological resources
and their benefits. Their objectives are
to regulate access to, recognize, and
value genetic resources (and in most
cases the traditionalknowledge of indigenous and traditional agricultural
groups), and assure equitable distribution of benefits derived from genetic
resources. Several laws, particularly
Decision 391 of the Andean pact, propose new permit processing mechanisms conceived to increase control
over access. In the Andean example,
all requests for access to genetic resources require a formal application,
the negotiation of a contract, and publication of the contract in the national
registry and in public media (Gaceta

6
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Issues in InternationalConservation

Table 1.

Countries with the largest estimated numbers of species for selected taxa.*

Birds
Colombia
Peru
Brazil
Indonesia
Ecuador
Bolivia
Venezuela
India
Malaysia
China

Amphibians
1721
1701
1622
1519
1447
1280
1275
1200
1200
1195

Brazil
Colombia
Ecuador
Mexico
Indonesia
China
Peru
Zaire
USA
Venezuela

Angiosperms
516
407
358
282
270
265
251
216
205
203

Brazil
Colombia
China
Mexico
Australia
South Africa
Indonesia
Venezuela
Peru
Bolivia

55,000
45,000
27,000
25,000
23,000
21,000
20,000
20,000
20,000
20,000

*From McNeely et al. (1990). Compare this list ranking with the list of countries with existing
or planned legislation for access to genetic resources (second paragraph of introduction).

(commercial or noncommercial) undergo centralized scrutiny and a cumbersome permittingprocess. To implement the new regulatoryframeworks,
governments need to advance quantum leaps in their permit, contract negotiation, and monitoring capabilities.
Otherwise, most national legislation
will achieve the opposite effect of its
originalintent, encouraging evasion of
the regulatoryframework by both applicants and government agencies.

Effects of Legislation on
Biodiversity Research
Oficial del Acuerdo de Cartagena
1996). Access contracts require that
foreign applicants ensure the participation of "approved"national counterparts, support of conservation research, strengthening of knowledge
and technology, prompt and accurate
information about the genetic resources in question, participation of
local communities, deposit of specimen duplicates in nationalcollections,
and dissemination of scientific results
to the country in a timely fashion.
To manage this permit system,
countries are supposed to set up a national authority-in practice within
an environment ministry or its equivalent-to regulate access to genetic
resources. The national authority is
responsible for the installation of a
central processing mechanism that
can make information available and
public, maintain tight coordination
with national and international offices that regulate intellectual property rights, and coordinate with research centers, government agencies,
and international institutions. Finally,
most countries will not acknowledge
intellectual property rights on genetic resources or derived products
based on access outside the bounds
of their laws.
Although regulation of access to
genetic resources is a laudable idea,
most of these laws are fraughtwith serious implementation problems that
are already hampering the advancement of knowledge of biodiversity.

In most national legislation, the pendulum has swung toward extreme

control of the state over biodiversity.
Most legal frameworks suffer from
unrealistic assumptions about the
technical capabilities and implementation costs of the proposed centralized control system. The legal, technical, and managerial implications are
generallywell beyond the present embryonic enforcement and control capabilities of government agencies of
most developing countries (Hanes et
al. 1995). With a limited base of
technical knowledge on biodiversity, most countries will see their access decisions limited mainly by lack
of appropriate information. Thus,
implementation of the provisions of
the new regulatory mechanisms will
remain difficult now and over the
long term.
Furthermore,the intrinsicallyvague
definitions used in the CBD and national legislation regardingaccess, genetic resources, biological resources,
and intangible components are so
loose (Appendix) that it is hard to
imagine what kind of research activity
does not qualify as biodiversity prospecting. Thus, all researchers will
have to enter into contractualnegotiations for access to genetic resources.
Distinctions between noncommercial
scientific research and commercial
biodiversity prospecting are intrinsically difficult,so a precautionaryinterpretation of the laws will require that
every biodiversity research project

These new obstacles of the permit

system are particularly difficult for
budding national scientific groups,
through which a significant amount
of new knowledge of biodiversity is
being collected and analyzed (e.g.,
Rangel 1987; Rodriguez & RojasSuarez 1995). Usually working under
adverse circumstancesand chronically
underfunded, local scientists may not
have the time and financial flexibility
or the legal capabilities to negotiate
protracted access contracts with government bureaucracies.
Similarly, international ("foreign")
institutions such as museums, herbaria,botanicalgardens,researchinstitutes, internationalconservation agencies, and universities must now enter
new and often erraticnegotiations for
access to genetic resources. Historically, some of these internationalinstitutions may have overlooked the need
to repatriate information, train local
researchers,or return specimens to local institutions, but many still remain
the largest repositories and analyzers
of knowledge of tropical biodiversity
(e.g., Berry et al. 1995; Stotz et al.
1996).
Under the magnifying glass of the
new legislative frameworks, government agencies that traditionally process biodiversity research permits
have adopted a "preventive mode,"
resulting in arbitrarymoratoriums on
export or collections permits for national or international museums or
herbaria and in a general slowdown

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Issucesin InternationalConservation

in biodiversity research permits. Also,

because the permit procedures of the
government authority usually require legal scrutiny, biodiversity research permits take even longer now
than in the formerly less-than-timely
process.
The development of cumbersome,
erratic, and less transparent permit
processes can produce a chilling effect on the collection, inventory, research, and monitoring of biodiversity
just when the information is most
needed. In the Andean region, some
indicationsof the permit system grinding to a halt include a 1-yearmoratorium during 1995 of transferof botanical samples to and from Venezuela
(0. Huber, personal communication).
In Ecuadorover 50,000 botanical samples waited more than 1 year for shipping permits to expert taxonomists
worldwide (R. Alarcon,personal communication). Throughout the Andean
region, publication of ethnobotany
studies has stalled, pending clear
guidelines on indigenous intellectual
property rights on "intangiblecomponents" of access to genetic resources.
Similarproblems have occurred in Colombia and Peru (A.G.,personal observation). Without this base of knowledge of biodiversity,governments will
not be able to objectively evaluate the
merits of access applications, negotiate favorable agreements, or evaluate
the possibilities for revenue generation from biotechnology. Biodiversity-richcountries will not be able to
control and defend what they do not
know. Given how little humanity
knows about the world's biodiversity
(Erwin 1988), limiting basic research
does not provide a constructive process for enhancing our knowledge of
biodiversity. Without knowledge and
trained professionals, biodiversitywill
eventually become less valuable, with
concomitant negative effects for biodiversity conservation.
The emphasis on genetic resources
has artificiallyovervaluedthe expectations of economic benefits from medicinal plants or genetic resources in
general (Balick & Mendelsohn 1992;
Simpson et al. 1996), whereas other

benefits of biodiversity such as usage

fees or ecosystem services are "here
and now" but are usually foregone by
governments (McNeely 1988). This is
of particular concern when most
countries have been inefficient at capturing revenue from existing biodiversity services, such as ecotourism fees,
national park entrance fees and concessions, hydroelectric power, water
use, and right-of-wayfees. A point in
case is the Galapagos National Park,
where entrance fees produce a gross
revenue of about $7-8 million per
year, but where the 1997 budget for
all operations (without salaries) for
the EcuadorNational Institute for Forestry and Natural Areas (INEFAN,in
charge of forest and wildlife management and all national protected areas)
was about $900,000 plus another $4.5
million in foreign aid (INEFAN,personal communication.)
Even more worrisome is that most
legislative projects divert national
biodiversity conservation efforts toward the issues of access and genetic
technologies, whereas most biodiversity is being lost by much more direct
and evident threats such as unstable
land tenure, habitatconversion, deforestation, overfishing, and unsustainable development. If implemented as
proposed, most of the access laws will
make biodiversity access permits
more difficult for scientists to obtain
than for mining concessions (Schemo
1996), tougher on museums than on
hydropower development, and more
cumbersome for herbariathan for logging companies.

Solutions
Several legislative processes, such as
Andean Decision 391, have nearly
paralyzed government permit systems and do not provide clear technical guidelines. As usual, the devil is in
the details, and it will be difficult to
define clear differences between scientific and commercial research, national and foreign projects or researchers, and sustainable or unsustainable
uses.

As biotechnology progresses and

our understanding of biodiversity
moves forward, however, access to
genetic resources will become even
more important. Thus, developing
countries need to propose constructive alternatives to the immediate
problems that the Andean Decision
391 and similarlegislation impose on
biodiversity research. For example,
instead of focusing on centralized
government controls and trade secrets, developing nations should foster the creation of an accessible base
of knowledge of their biodiversity.
Better and more knowledge will result in better control over access. The
thought that biodiversity research
knowledge should be treated as trade
secrets is negative and will hamper
reasonable controls. Whenever possible, governments should delegate the
technical management of access to
genetic resources to reputable national institutions such as universities, biodiversity institutes, or other
technical organizations. Thus, the research permit and access process can
rest on a decentralized information
system (aided by present Internet
technologies). Such a network of national institutes should in turn be the
primary beneficiaries of trust funds
and the managers of the biodiversity
knowledge base. Furthermore, international funding agencies that have
an interest in implementing the Convention on Biological Diversityshould
be ready to provide technical assistance and funding for such networks.
As such, the implementation of National Biodiversity Strategies, as required by the Convention on Biological Diversity, should rapidly move
beyond the formal document presently envisioned (Miller & Lanou
1995) and toward dynamic information processes (Margules & Redhead
1995).

Finally,researchers on tropical biodiversity-particularly taxonomistsshould become directly involved in

discussions over national implementation of Article 15 of the CBD. Without their involvement and input, the
new regulatory frameworks drafted

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Issues in InternationalConservation

mainly by politicians, government bureaucrats, and lawyers will continue

to create unnecessary obstacles to
the development of a proper knowledge base for tropical biodiversity.
The development of several national laws sheds light on the complexities of access to genetic resources and on some unintended
consequences of Article 15 of the
CBDand its future. Its implications go
beyond the borders of tropical countries. Developing countries and enlightened governments of developed
nations should encourage a concerted
global effort to strengthen the biodiversity informationsystems and scientific capacity of developing countries. Given their urgent human
development demands and increasingly threatened biological diversity,
developing countries need to focus
on the conservation of their natural
capital, of which biological diversity
is one of the most valuable and irreplaceable. Further knowledge of and
commitment to conservation will be
the only hope for a sustainablefuture.

Acknowledgments
I thank J. Ginsberg, J. Robinson, M.
Ruiz-Muller,M. Morales, and R. Alarcon for their fruitful discussions. Not
all agreed with my views.
AlejandroGrajal
Latin America and Caribbean Program, National
Audubon Society, 444 Brickeli Avenue, Suite
850, Miami, FL 33131, U.S.A., email agrajal@
audubon.org

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10

Conservation
Issuesin International

Grnjal

Appendix
Some definitionsof termsin the AndeanDecision 319 (original documentis in Spanish;translationsare the author's).
Access: Obtaining or use of genetic resources, conserved under ex situ and in situ conditions, their derived products or their intangible
components with goals of research, biological prospecting, conservation, industrial application, or commercial use.
Intangible component: Any knowledge, innovation, or individual or collective practice with real or potential value associated with
the genetic resource or its derived products or the biological resources that contain them, whether protected or not by intellectual
property rights.
Access contract: Agreement between the competent national authority representing the state and a person that establishes the terms
and conditions for the access to genetic resources, its derived products, and, if present, the associated intangible component.
Biological diversity: Variabilityof living organisms from any source, such as marine and terrestrialecosystems, other aquatic
ecosystems, and the ecological complexes of which organisms are a part. It encompasses biodiversity within species, between
species, and of ecosystems that are a result of natural or cultural processes.
Biological resources: Individual organisms or their parts, populations, or any biotic component of value or utility whether real or
potential that contain the genetic resource or its derived products.
Genetic resources: Any material of biological nature that contains genetic information of real or potential value or utility.
Sustainable use: Use of the components of biological diversity in a way that does not cause its diminution in the long term and that
maintains the possibility to satisfy the necessities and aspirations of present and future generations.

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