TWN Info Service on Biosafety, Biodiversity and TK
17 December 2018
Published by Third World Network
www.twn.my
Biodiversity Convention decides to address conflicts of interest
Denpasar, 14 Dec (Lim Li Lin*) — Parties to the UN Convention on Biological Diversity (CBD) have approved conflicts of interest procedures to limit the influence of private sector industry and other economic and vested interests from unduly influencing decisions taken to protect biological diversity.
The Fourteenth Meeting of the Conference of the Parties (COP 14) to the CBD was held in Sharm el-Sheikh, Egypt from 17th to 29th November 2018.
On its agenda was the topic of “conflicts of interest” which had recently arisen in earnest.
In the CBD, conflicts of interest issues had not been addressed systemically or comprehensively, as it has been in some other intergovernmental fora.
In 2017, a number of civil society organisations made public their findings from open records requests in the US and Canada (under the US Freedom of Information Act and the Canadian Access to Information Act), dubbing them the “Gene Drive Files”.
(Gene drive systems are designed to deliberately force an engineered trait to spread through sexual reproduction resulting in the genetic engineering of whole populations and possible population or species extinction. They cannot be recalled or contained once released. Current research using gene drive systems include targeting the mosquitoes that are the vector for malaria, and some invasive species that are driving other species to extinction.)
The Gene Drive Files demonstrated that the CBD and its Protocols are not immune from undue influence from industry and other vested interests, that run counter to their objectives, purposes and principles.
Discussions on gene drives take place under the CBD’s synthetic biology agenda.
A number of experts that had been appointed to the CBD’s Ad Hoc Technical Expert Group (AHTEG) on Synthetic Biology were working for institutions that received over US$100 million combined in US military and philanthropic funds expressly to develop and test gene drive systems.
And yet, these experts were part of an expert group advising the COP’s decision-making on the very same subject.
These conflicts of interest had not been declared partly because there was no requirement to do so in the CBD processes.
They were only revealed because of the due diligence done by civil society. Yet, disclosure of such serious conflicts of interest would be commonplace in the institutions that they belong to.
In addition, the Gene Drive Files revealed that a private agriculture and biotechnology public relations firm called “Emerging Ag” had recruited and coordinated at least 65 people to participate in the CBD online forum on synthetic biology in order to influence its outcome.
Emerging Ag had been paid US$1.6 billion by the Bill and Melinda Gates Foundation to do this.
In the online forum, these recruits primarily advocated for a less precautionary approach to synthetic biology and gene drives.
For example, some of them argued that there was little need to improve or develop specific contained use standards for gene drive organisms, despite the high potential that unintentional release from the laboratory could cause widespread impacts on the conservation and sustainable use of biological diversity.
Whereas, according to the CBD’s precautionary approach, “where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat”.
Current applications of gene drives under research are also aimed at population suppression, which could potentially result in population or even species extinction, whereas one of the three objectives of the CBD is the conservation of biological diversity.
Emerging Ag has also been collaborating with Public Research and Regulation Initiative (PRRI), a lobby group comprising public sector biotechnology scientists, who run a similar influence operation in CBD processes.
Many of their positions and inputs are aimed at decreasing biosafety regulation, and shifting the focus from risks to benefits while advocating for the use of living modified organisms (LMOs, as they are known in the CBD and the Cartagena Protocol on Biosafety).
Whereas the Cartagena Protocol’s objective and focus is on ensuring an adequate level of protection with regards to LMOs “that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health”.
These different interests conflict with the objectives, purposes and principles of the CBD and the Cartagena Protocol, and are also conflicts of interest.
They have been extensively addressed in other intergovernmental fora, such as the World Health Organisation (WHO).
The WHO’s Framework of Engagement with non-State Actors (FENSA) identifies institutional conflicts of interest as where its “primary interest as reflected in its constitution, may be unduly influenced by the conflicting interest of a non-State actor in a way that affects, or may reasonably be perceived to affect, the independence and objectivity” of its work.
PROCEDURE FOR AVOIDING OR MANAGING CONFLICTS OF INTEREST
These developments led to a proposal by the Executive Secretary of the CBD to the CBD’s Subsidiary Body on Implementation (SBI) which met earlier in 2018, for a procedure for avoiding or managing conflicts of interest in expert groups.
The SBI produced a draft decision for COP 14, and subsequently, submissions were also received from Parties, governments and international organisations.
At COP 14, a revised draft decision was presented for adoption.
A “Friends of the Chair” group was established to work further on the draft decision, and a decision was adopted in the final plenary of the COP on its last day.
The final decision contains a procedure for avoiding or managing conflicts of interest in technical expert groups that serve the CBD’s COP, the Cartagena Protocol’s Conference of the Parties serving as the meeting of the Parties (COP-MOP), and the Nagoya Protocol on Access and Benefit Sharing’s COP-MOP, or any of their subsidiary bodies.
It applies to all nominated experts, regardless of who they are nominated by. It does not apply to representatives of Parties or observers in intergovernmental meetings (such as the COPs or COP-MOPs themselves) or in meetings of other bodies constituted with members representing Parties or observers such as the Subsidiary Body on Scientific and Technical and Technological Advice (SBSTTA).
It contains, in an appendix, an “Interest Disclosure Form” that any person nominated to serve on a technical expert group such as an Ad Hoc Technical Expert Group, including as Chair, would have to complete and submit to the CBD Secretariat. (The Form is adapted from the Conflict of Interest Policy and Implementation Procedures of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services.)
Civil society groups active in the CBD processes have continually asserted that disclosure of interest is a good starting point for dealing with conflicts of interest, but should not be the end point as much more needs to be done to deal with the multiple problems posed by conflicts of interest in these processes.
In addition, disclosure of interests should not be limited to technical expert groups alone, according to them.
The opportunity for this may well arise in four years.
The Executive Secretary is tasked with preparing a report on the implementation of the procedure and relevant developments in avoiding or managing conflicts of interest in other multilateral environmental agreements, intergovernmental initiatives or organizations, and proposing “updates and amendments to the current procedure” to the SBI prior to COP 16.
The SBI may then recommend a decision to COP 16 in 2022.
The procedure specifies that conflicts of interest “constitutes any current circumstances or interest that could lead a person to reasonably believe that an individual’s objectivity in carrying out his or her duties and responsibilities for a specific expert group may be in question or that an unfair advantage may be created for any person or organization.”
Importantly, the procedure also specifies that, “A distinction is made between “conflicts of interest” and “bias”. “Bias” refers to a point of view or perspective that is strongly held regarding a particular issue or set of issues. Holding a view that one believes to be correct but that one does not stand to gain from personally, does not necessarily constitute a conflict of interest but may be a bias.”
This acknowledges that individuals sometimes strongly hold divergent views and perspectives, but this does not necessarily mean that there is a conflict of interest.
Conflicts of interest in essence stem from the vested private interests (financial or otherwise) of an individual that could benefit (directly or indirectly) from the decisions taken based on the advice of the expert group that the individual is a member of.
This distinction is important to clarify because many individuals working with public interest non-governmental organizations, for example, have strongly held views and positions in the public interest that are in line with the objectives, purposes and principles of the CBD and its Protocols.
But these are not conflicts of interests unless they privately stand to gain financially or otherwise from decisions that they advocate for, and these interests are supportive of the goals of the CBD and its Protocols.
INTEREST DISCLOSURE FORM
Each nominated expert must complete the interest disclosure form prior to the selection of experts to disclose “any situations, financial or otherwise, that might be perceived as affecting the objectivity and independence of the contribution that the expert makes and thus affect the outcome of the work of the expert group”.
The interest disclosure form requires nominated experts, to disclose any interests that may “impair [their] objectivity in carrying out [their] duties and responsibilities as a member of the Expert Group” or “create an unfair advantage for [the nominated expert] or any person or organization”.
The onus is also on the expert to inform the Secretariat and the chair of the expert group if there is a change in circumstances of the expert once selected, which may result in a conflict of interest.
In the interest disclosure form, various relevant financial and professional interests and activities are specified such as employment and consulting relationships, financial investments, intellectual property and commercial interests, sources of private-sector research support, and former employment and/or other affiliation(s).
In addition, relevant financial interests of not just the individual concerned, but also their employer or the organization nominating them must be declared.
Apart from contact details, the contents of the interest disclosure form is publicly available upon request.
Nominated experts may request for some information to be kept private, and an assessment of this request will be made by the Secretariat.
It was keenly felt during the discussions that the disclosure form must be made publicly available, in order that the information provided or withheld by the nominated expert can be verified, thus providing some integrity to the procedure.
The CBD Secretariat reviews the interest disclosure form that it receives, which should also include any steps the nominee proposes to take to manage any potential conflicts of interest stemming from other interests apart from professional and financial interests.
If there are potential concerns, the Secretariat should seek further information.
It must inform the national focal point if it nominated the expert, and may also inform the relevant Bureau (of the COP or the SBSTTA, depending on which body has mandated the expert group).
Based on the assessment by the Secretariat, the relevant Bureau makes a decision on the experts to be selected.
This decision is made on the basis of: (a) the terms of reference of the expert group; (b) the criteria that may be set out in the notification for nominations; and (c) the review of information received through the conflicts of interest procedure and any related consultations.
When an expert is not selected due to a perceived conflict of interests, the relevant Bureau may seek further information.
The expert and the national focal point (if it nominated the expert) will be informed of the rationale behind the decision.
They may respond, and upon further consideration, a final decision will be taken by the respective Bureau.
The following situations require the Secretariat to have a discussion with the expert and call the attention of the chairperson of that expert group and the relevant Bureau to the situation for their guidance:
(i) If there is a disagreement between the expert and the Secretariat on the determination of a conflict of interests;
(ii) If the situation of an expert changes during the mandate of the expert group and the Secretariat is so informed; and
(iii) When the Secretariat becomes aware of information or documentation that supports the determination on the existence of a conflict of interest. (This means that anyone may bring relevant information to the attention of the Secretariat that indicates a potential conflict of interest.)
If such a situation occurs in relation to the chairperson of that expert group, the Secretariat will discuss the issue with that chairperson and bring it to the attention of the relevant Bureau for its guidance.
The Secretariat will proceed according to the instructions of the respective Bureau.
However, the conflicts of interest procedure allows for expert groups to be constituted even where some members may have a conflict of interest.
The rationale provided for this is that in some situations the possibilities are limited to constitute an effective expert group with the full range of experience and expertise required, without including such experts.
The relevant Bureau, acting on the advice of the Secretariat, may include such experts “provided that:
(a) there is a balance of such potential interests in a manner that serves the objectives of the Convention and the Protocols, as appropriate, and which ensures that products from the expert group are comprehensive and objective;
(b) information concerning the potential conflicts of interest will be made available to the expert group and to the public upon request; and
(c) the experts agree to endeavour to contribute to the work of the group with objectivity, or to recuse themselves where this is not possible or in doubt.”
Civil society observers criticized this as a significant loophole, which allows individuals with conflicts of interest to nevertheless participate as experts in bodies that provide significant inputs to Parties for decision-making.
They pointed to procedures in other fora such as the WHO’s International Agency for Research on Cancer where experts with conflicts of interest may be excluded from parts of the meeting or work related to the declared interest and from the corresponding decision-making process on the outputs of the meeting or work.
Nonetheless, the decision on conflicts of interest by COP 14 is a significant step forward for the integrity of international governance of biological diversity.
Corresponding decisions were also adopted by the Cartagena Protocol’s COP-MOP 9 and the Nagoya Protocol’s COP-MOP 3 which met concurrently.
(* With inputs from Lim Li Ching.) +