Norwegian leadership in the international ABS negotiations
Throughout the CBD negotiations, Norway has assumed the role of bridge-builder. Initially along with the Nordic countries, Denmark and Sweden in particular, Norway insisted that all countries have a common responsibility for sharing the costs of biodiversity conservation. The Nordics argued for a system that would allow a returning flow of benefits in compensation for the use of genetic resources from the South (Koester 1997; Rosendal 2000). Further central Nordic goals were the principles that the CBD should include all biological diversity (Schei 1997; Svensson 1993). These goals were successfully achieved in liaison with the G77. One of the most controversial articles, which caused greatest discomfort to the USA, is Article 16.5 (Rosendal 1995). It reads: ‘The Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives’. According to central negotiators, this text was crafted by the Norwegians.Footnote 13 That the working group drafting this text was led by the chief Brazilian negotiator also helped to promote the essence of the Article, as the whole of G77 was aligned with Norway on these issues and Brazil was a strong advocate.Footnote 14
During the NP negotiations, Norway played a central role in the architecture of the core compliance provisions (Articles 15, 16, 17 and 18)—especially the principle that users must comply with ABS regulations in provider countries. Achieving strong user-country measures was of utmost importance to Norway in these negotiations.Footnote 15
For Norway, these objectives go back to the period preceding the CBD negotiations (Rosendal 2005). The objectives were already set out in White Paper no. 46 (Ministry of the Environment 1989); and the accompanying Blue Book (Ministry of Foreign Affairs 1988) and were put into effect during the CBD negotiation phase. White Paper 46, 1989 (p. 113) has the following international biodiversity goals, ‘To support international activities that give developing countries a more equitable share of the benefits accruing from the use of genetic resources’. The same goals are set out in the Blue Book of the Min of foreign affairs (1988, p 23) (further elaborated in Rosendal 2005, 2007). The principles were also central in the report of the World Commission on Environment and Development (1987: the ‘Brundtland Report’), which urged: ‘Industrialised nations seeking to reap some of the economic benefits of genetic resources should support the efforts of the Third World nations to conserve species’ and ‘Developing countries must be ensured an equitable share of the economic profit from the use of genes for commercial purposes’ (WCED 1987).
Also in the more recent phases of ABS negotiations Norway has had an acknowledged role as a significant player, with a level of engagement mirrored by its own national ABS legislation (Burton 2012). Compared with many other countries, Norway has high capacity to coordinate the positions of negotiation delegations across international arenas. Moreover, a typical characteristic is continuity, as the same civil servants—mostly from the Ministries of Foreign Affairs, Agriculture, Fisheries and the Environment, with the latter in the lead—have attended these UN forums for several years (Rosendal 2007). Here, Peter Johan Schei and Birthe Ivars have played central roles in leading the ABS negotiations through crucial phases. In the negotiations leading up to Nagoya, the delegation was strengthened with a member from the Ministry of Legal Affairs in order to include expertise on negotiations underway in the WTO and WIPO.Footnote 16 These elements have provided Norway with expertise, commitment and continuity in negotiations.Footnote 17 Because of this expertise and commitment, Norway was chosen by the Japanese hosts along with Brazil, the EU and Namibia to form a group to assist in the final rounds of the Nagoya negotiations.Footnote 18
This bolsters the explanation that Norway has a high degree of institutional capacity and continuity for coordination of domestic policies regarding ABS, and also that the normative basis for ABS remains part of the Norwegian politics. Both pacta sunt servanta and iterative negotiation games with stable coalition partners appear to strengthen the likelihood that Norway will be able to continue its ABS position. Moreover, due to the broad representation from various ministries, Norway has a long history of supporting the CBD principles across international forums. The growing complexity in ABS governance could, however, affect the normative basis, as this could be seen as a case of competing norms: FAO parties cite the normative principle linked to food security and access to GRFA and worry that the ABS could obstruct access to genetic material. As argued in Sect. 3.4, this normative controversy could also be interpreted as part of the interests of structurally powerful parties and organizational turf wars; as the FAO, more so than the CBD, is dominated by users and an increasingly strong multinational seeds industry. This illustrates the difficulty of distinguishing between normative and interest-based motivations. In order to examine this more closely, the next sections take a closer look at the material basis for Norway’s ABS position. According to our analytical presumptions, how ABS objectives are reflected in domestic legislation and how this corresponds with domestic material interests may affect the leadership role.
Norway and domestic ABS implementation: directional leadership
We have shown how Norway has been active in advocating four core principles of the ABS regime: equitable sharing, the inclusion of domesticated genetic resources (seeds), balancing IPR and ABS systems (Article 16.5) and strengthening user measures in order to comply with the ABS regime. Let us now see how these items are reflected in domestic legislation.
Sections 57–60 of Norway’s Nature Diversity Act (2009) directly address user-measure obligations in the ABS. The import of genetic material into Norway from a provider state that requires prior informed consent may take place only in accordance with such consent. When such material is utilized for research or commercial purposes in Norway, such use shall be accompanied by information about the country of origin according to the amended Patent Act, section 8b, of 2003. Moreover, any person receiving genetic material from a public collection shall refrain, in Norway or abroad, from claiming intellectual property rights to the material, unless the material has been modified in a way that results in a substantial change. Contrary behaviour is subject to sanctions through legal action (see also Medaglia et al. 2013; Tvedt 2010). By tying sanctions to non-compliance, Norway goes further than required by the ABS obligations of the NP.
Among user countries, the most significant ABS measures are the legal amendments in patent legislation regarding disclosure of origin of genetic resources in patent applications. Norway and eight other European countries, including Sweden and Denmark, have provided such far-reaching legislation. Other significant legal measures relate to legal language demanding respect for PIC and MAT, found in legislation in Norway and a few other OECD countries. The measures vary considerably, however: in Norway, the legislation on PIC and MAT is aimed at Norwegian activities abroad, whereas Australian PIC and MAT legislation is directed towards external bioprospectors within their own country (Prip et al. 2014). A third significant legal activity is the introduction of penalties/sanctions for non-compliance, which has been enacted in Norway, Denmark and Switzerland.
Compared with most other user/OECD countries, Norway has held a leading position in establishing compatible domestic regulations with a view to implementing ABS. Norway was the first among the user countries thus far to ratify the NP. Among developed countries, Australia, Norway and Switzerland are the earliest implementers of the ABS regime. They have contributed to the NP through domestic legislation (directional leadership) which allows the NP to build on key elements that have already been tested and found to work (Burton 2012).
This part of the picture thus seems to confirm that Norway has invested institutional capacity in achieving a coordinated policy and a normatively consolidated approach to the ABS principles. During the legislative process, the translation of these principles into domestic legislation was not subject to diverging sub-national interests.Footnote 19 The domestic enactment of compatible legislation may have bolstered Norwegian instrumental leadership during negotiations, indicating leadership by example. We now turn to domestic ABS legislation in Norway and its relation to national material interests.
Norwegian international efforts in light of domestic material interests
Do Norwegian biotechnological and live-sector interests deviate significantly from those of the environmental authorities over ABS? Since the entry into force of the CBD in 1993, seven regionsFootnote 20 and 57 countries (40 developing countries and 17 developed countries) have formulated domestic legal ABS measures.Footnote 21 The emerging economies of Brazil, China, India and South Africa have all enacted fully fledged ABS legislation. Compared with those countries, Norway was a latecomer here with the amended Patent Act of 2003 and Nature Diversity Act of 2009. Compared with other users, which is more relevant, Norway is a pioneer in enacting user measures.
This type of legislation would seem to have come at relatively low domestic costs for Norway. Through most of the negotiations, its biotechnology sector has been comparatively small (Ernst and Young 2001). The USA, the EU and Japan together accounted for about 80 % of all applications for biotechnology-related patents under the system administered by the WIPO (OECD 2009). In Norway, there have been fairly few domestic economic interests linked to intellectual property rights to genetic resources.
However, Norway may expect greater attention from multinational corporations within the pharmaceutical sector and in the rapidly growing aquaculture sector. There is considerable interest in prospecting for marine genetic material, which has displayed promising medicinal traits. Still a relatively small user country, Norway might also have a particular interest in ABS legislation as a provider, due to its high levels of interesting marine genetic material. Also Australia deviates from most OECD countries by being not only a typical user country: it also ranks among the 17 megadiverse countries—a typical provider (Burton 2012). This goes a long way towards explaining Australia’s elaborate ABS legislation as a provider country. By contrast, Switzerland is hardly megadiverse and is home to a very strong biotechnology sector, but has nevertheless gone far in developing legal user measures such as disclosure and has also pursued the role of bridge-builder in the negotiations (Hufty et al. 2014). Denmark and Switzerland still rank higher than Norway in patents granted, although also in Norway the biotechnology sector has increased during the last decade (Ernst and Young, 2005, 2008, 2012; OECD 2011).Footnote 22
The study of domestic interests also warrants some scrutiny of evolving trends in agriculture, relevant for the interests Norway may pursue vis-à-vis the FAO. All countries, including Norway, depend on exchange of seeds (Kloppenburg 2004). Still, the specific climatic conditions for Norwegian agriculture may set it apart from most other developed countries. Does this make Norway more or less dependent on the large seed corporations? Do multinational corporations have a less dominant role in Norway, accompanied by much lower demand for IPRs in seeds? The argument here is that multinational corporations have strong economic interests in pursuing broader patent protection; at the same time, they can evade the governmental control and regulations intended to enforce ABS behaviour (Louwaars et al. 2009).
Although the latter issue remains uncertain, the upshot is in line with the expectation that Norway does not seem to have strong domestic interests that deviate from the ABS principles. Norway differs from most OECD countries in having a relatively small biotechnology sector, being well endowed with genetic resources and with climatic conditions that place Norwegian agriculture on the outskirts of the radar of multinational seeds corporations. This would seem to furnish Norway with a somewhat different interest-base compared with most OECD countries. There might be altered policy deliberations ahead as Norwegian biotechnology picks up, although the Swiss example indicates that ABS compliance is possible also in countries with a strong biotechnology sector. Norway and Switzerland both seem inclined to advocate equitable sharing even though their material interests might dictate otherwise. This could be because both countries think that it does not necessarily mean great losses to support ABS and that the benign international profile and coming across as a legitimate bioprospector would make-up for possible economic losses in their biotechnology sector.
Increased complexity and altered coalitions: affecting Norwegian leadership role?
As noted, Norway has long had a leadership role in this issue area. Its independent role from the EU and the JUSCANZFootnote 23 group provided Norway with wider scope in the negotiations to develop its own position. The increased complexity did not appear to have negative consequences for exerting leadership within the NP negotiations—indeed, this may have broadened the scope for manoeuvre and leadership.Footnote 24 This may be different within the framework of the FAO, where Norway is a member of the European group, indicating less scope for independent leadership. The spilt in the FAO–CGRFA meeting, with only the African group arguing against sectoral approaches, may also affect Norway’s role and position. It is important to note that the Norwegian delegation participated in CGRFA with a mandate not to support legally binding sectoral ABS agreements under the CGRFA.Footnote 25 Nevertheless, Norway did not express vocal support to Africa at the 2013 meeting. How can that be explained?
The Norwegian position cannot provide an explanation. Norwegian administrators are not comfortable with the FAO definition of ABS in terms of non-monetary benefits. The Ministry of Agriculture and Food (MAF) and the Ministry of the Environment (MoE) concur that Norway does not follow the OECD interpretation and position in this definition.Footnote 26 Across ministries, there is recognition of the need to be aware of the different power and interest structures of the various international forums, as well as the need for national-level coordination when negotiating interacting regimes. As regards the FAO multilateral system, the MAF is aware that it is problematic that the multinational seed corporations enjoy full access without providing benefit sharing. These corporations generate large sums of money that are not returned to farmers.Footnote 27 Norway is also the third largest contributor to the ITPGRFA fund,Footnote 28 acknowledging that the seed industry is not likely to provide the necessary funding. Moreover, as fiscal support is unlikely to be forthcoming through the ITPGRFA, that concern is meant to be implemented through the CBD-ABS.Footnote 29
However, the composition of the Norwegian delegation might explain why they did not stand up in defence of the African group/Namibia/SEARICE’s proposal in the plenum debate. Norway’s delegation did not include representation from the MoE, even though that ministry had had a noteworthy role in forging the coordinated mandate. The MoE representative fell out of the delegation at the last minute before the CGRFA meeting. If MoE had been present, might Norway have made an intervention in favour of the African view? Perhaps, the ministries represented did not have enough stakes in the mandate to make a public statement in its defence. To the sector-based ministries, the FAO and its CGRFA are more important venues than the CBD and its ABS regime, so these sector-based ministries might cater to a different set of interests than the MoE. On the other hand, the fact that the MoE representative was not replaced may also signify that the FAO–CGRFA is not considered to be very important for the MoE. In that case, this may point towards a division of labour between the sector ministries (focusing on FAO) and the more general MoE (focusing on CBD/NP). If this is the case, it points towards a less coordinated position in the future and maybe therefore also less scope for leadership when the ABS issue is discussed in the FAO. However, there is as yet not enough empirical material to substantiate such a conclusion.