Nithin Ramakrishnan, Third World Network
Agenda Item 8 of SBI-6 touches the very core of Access and Benefit-Sharing (ABS) law - addressing resource extraction and biopiracy. Genetic resources and the Digital Sequence Information (DSI) derived from them are subject to State sovereignty and to the rights of Indigenous Peoples and local communities, particularly where such resources originate from their lands, waters, and territories. The Nagoya Protocol recognizes these rights and provides a framework for Parties and communities to realize them by enacting and operationalizing ABS regimes.
Specialized International ABS Instruments (SIIs), by contrast, seek to internationalize access conditions and benefit-sharing obligations for specific genetic resources and uses, such as public health or food security. Once an instrument is recognized as an SII - only where consistent with the objectives of the CBD and the Nagoya Protocol - the Protocol no longer applies. Although intended to avoid institutional overlap, this rule is increasingly used to argue for the design of ABS mechanisms that carve genetic resources and associated data out of national sovereignty and IPLC rights. Public health and food security not only become mere excuses, but may be actually threatened by such moves.
The FAO Plant Treaty illustrates this concern. Covering 64 food-security crops, it facilitates seed access yet operates without informing national authorities or contributing farmers who access the material, what research is conducted, or what outcomes result. Studies indicate that both Treaty-compliant use and diversion to commercial purposes remain largely undetectable. Overall sharing of benefits have been meagre. A similar trend is emerging in WHO negotiations on a pathogen access and benefit-sharing (PABS) system, where proposals from the Global North would establish a system with no meaningful access conditions and designate it as an SII. This pre-empts the Nagoya Protocol and national ABS laws before any implementation or evaluation.
Such developments are inconsistent with CBD and Nagoya Protocol objectives, which also include “appropriate access to genetic resources that respects all rights over genetic resources”. Instead, genetic materials and related DSI are used and shared in opaque and sometimes anonymous ways - amounting to misappropriation and the facilitation of biopiracy,
Overall, a pattern is emerging in international ABS instruments that dilutes sovereign and IPLC rights by carving resources out of the Nagoya Protocol. While legal texts limit such carve-outs to specific uses, practical safeguards such as anti-diversion measures for resources and DSI are not put in place in these instruments. This governance gap risks normalizing both biological and digital biopiracy under the guise of food security and public health. The Meeting of the Parties to the Nagoya Protocol must therefore exercise leadership by establishing robust criteria to be satisfied by any prospective SII and a review process that ensures such instruments operate consistently with the Convention and Protocol in fully respecting all rights over genetic resources and DSI.