COP or WorldCup?

COP27 (which discusses climate change) has just ended in Sharm El-Sheikh (Egypt) and COP15 (which will discuss global conservation of biodiversity) is about to start in Montreal (Canada) and will take place between December 7th and 19th from 2022.

I hope that the infamous pun, which constitutes the title of this article, is of some use to draw attention to the theme, which will face unfair competition with the ongoing event in Qatar, starring Richarlison, Mbappé, Messi and company.

The biological resources of the planet are fundamental for humanity, so it is necessary that both are in balance and that the human being is aware that there is not possible to separate him from the environment, since he is the result of this environment. Contrary to this premise, the extinction rates of species and the threat to ecosystems caused by humans have reached alarming levels in recent years.

On the initiative of the United Nations Program for the Environment, a working group was created to study the elaboration of an international treaty focusing on the conservation of biological diversity, which came to be consolidated in the Convention on Biological Diversity (CBD). At the same time (RIO92), the United Nations Framework Convention on Climate Change and the United Nations Convention to Combat Desertification were also born.

The Convention on Biological Diversity (CBD) came into effect in December 1993 and today has more than 160 (one hundred and sixty) member countries. After almost 30 (thirty) years of existence, it continues to be the main and most important treaty that discusses issues related to global biodiversity. Among its main objectives, the Convention defined that the countries must seek: a) conservation of biological diversity; b) sustainable utilization of its components; c) fair and equitable sharing of benefits derived from the use of genetic resources, including through adequate access to genetic resources and adequate transfer of relevant technologies.

In its article 23, the CBD defined that the Parties should meet periodically through ordinary and extraordinary sessions and that, on the occasion of these meetings, they should establish the form and frequency of communication of the Information to be presented, examination of information, as well as the reports presented by any subsidiary body, scientific, technical and technological opinions presented by the Subsidiary Body for Scientific, Technical and Technological Advice (SBSTTA), adoption of protocols, examination and adoption of amendments and annexes, establishing the subsidiary bodies, in particular of scientific and technical consulting, considered necessary for the implementation of the Convention, among other tasks provided for in the same device.

By now, 14 (fourteen) meetings of the parties (COPs) have been held [1], with the COP15 having already had a part of its meeting held in Kunning (China) and the second part will take place in Montreal (Canada).

In this same period and place, the Meeting of the Parties related to the supplementary treaties resulting from the CBD will also take place. These are COP-MOP 10, referring to the Cartagena Protocol on Biosafety and COP-MOP 04 referring to the Nagoya Protocol on Access and Benefit Sharing.

COP15 has as its main agenda item the discussion of the proposed “Global Framework for Biodiversity Post-2020”, a compendium of 22 (twenty-two) global targets to be achieved by the year 2030 and 04 (four) targets long-term plans for 2050, related to the “2050 Vision for Biodiversity”.

Briefly, the 04 long-term goals work as great premises, so that countries can achieve the great Vision 2050 which is "Living in harmony with nature". The 22 goals (Post-2020) work as a great operational guide, with the paths and objectives that guide countries, in this decade, to adopt urgent measures to stop and reverse the global loss of biodiversity.

Goals 01 to 08 are generally focused on actions related to the reduction of threats to biodiversity, providing for: 1) integrated and inclusive use of land and sea, respecting the rights of indigenous peoples and traditional communities; 2) extent and restoration targets; 3) targets involving conservation areas; 4) urgent actions for sustainable management for the recovery and conservation of species; 5) measures involving exploitation of wild species; 6) control over exotic invasive species; 7) pollutant reduction; 8) the interface between biodiversity and climate change.

Goals 09 to 13 seek to discuss the relationship between the needs of people involved with sustainable use and benefit sharing, providing for: 9) sustainable use of exotic species, benefiting people, notably those most vulnerable; 10) sustainable use of the land; 11) ecosystem service contributions; 12) increase in green spaces in urban areas; 13) actions that result in increased benefit sharing.

Goals 14 to 22 set out tools and solutions for implementation and integration, providing for: 14) integration of biodiversity with a focus on government actions; 15) sustainable practices of financial companies and institutions; 16) encouraging sustainable consumption; 17) harm and adverse effects of the relationship between biotechnology and biodiversity; 18) elimination of harmful subsidies to biodiversity; 19) financial resources and encouragement of technology access and transfer; 20) data and information accessibility, with respect to the free will of indigenous peoples and traditional peoples and communities; 21) representations respecting gender equality and 22) that women and girls have equal opportunities and the ability to contribute to the three objectives of the Convention.

In addition to the discussion on the “Post-2020 Global Biodiversity Framework”, the delegations will debate, in the same period, very controversial and complex issues, such as Digital Sequence Information (DSI) and the Global Multilateral Benefit-Sharing Mechanism.

The signatory countries of the Convention on Biological Diversity (CBD) and the Nagoya Protocol have broad sovereignty to define their local access and benefit-sharing (ABS) system. Based on this principle, there are several legislations that define different criteria on ABS. In Brazil, for example, there is an electronic registration system (SISGen) that allows the user to comply with access requirements and the rationale for sharing benefits varies from 0.75% to 1% of the net revenue of products manufactured with Brazilian Biodiversity.

The issue becomes more complex in the ABS relationship between countries and, as a result, CBD members created a specific treaty for the topic, the Nagoya Protocol, so that they could have a specific forum for discussion on mechanisms and criteria for access and benefit sharing.

Within the scope of the NP there is a mechanism that encourages transparency between user and provider countries, called ABS Clearing-House, in which the parties obtain more accurate information on local ABS regimes.

But the world has advanced and the system elaborated by the parties, foreseen in the ABS Clearing-House, does not seem to reach more concrete solutions when it comes to the use of DSI, which contain the genetic heritage of a certain provider country. There are a series of questions that must be faced, but that have two main objectives: a) that access to digital databases is free (so as not to obstruct science) and b) that providers have their fair compensation, through the payment of benefit sharing.

Through COP15, the Parties will discuss solutions for benefit sharing via DSI and one that seems reasonable is the development of a “Multilateral Benefit Sharing Mechanism”. A group of scientists who are members of the DSI Scientific Network came together to discuss the issue and the result was the publication of an excellent article in co-authorship, called “Multilateral benefit-sharing from digital sequence information will support both science and biodiversity conservation” [2], which defines the bases of a possible multilateral benefit-sharing mechanism, where they proposed a structure in which access to DSI is "decoupled" from benefit-sharing from DSI, and that there is no limit to access to DSI, with the creation of a fund with several sources of funding (including royalties from patent deposits) that will revert to genetic resource providers.

Whether due to the relevance of the “Post-2020 Global Biodiversity Framework” or other topics that will also be debated in Montreal (such as DSI or Multilateral Mechanism for Benefit Sharing), COP15 may represent a "turning point" for biodiversity conservation global, with a direct impact on Brazil, which has very rich (and, unfortunately, threatened) biomes. The balance between maintaining consumption and preserving the environment is necessary and possible, but it represents a huge challenge. However, there is no other way in order to secure a living planet for present and future generations.

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Luiz Ricardo Marinello
Mestre em Direito pela PUC/SP; Professor na INSPER em Contratos de PI; Professor em Especialização de PI na ESA/SP; Coordenador de Comitê na ABPI; Diretor da ASPI; sócio de Marinello Advogados;