Peer Review by Joseph Henry Vogel* of the “Study on Domestic Measures” by Margo A. Bagley et al with reference to “Combined Study on Traceability and Databases” by Fabian Rohden et al and “Study on Concept and Scope” by Wael Houssen et al

(cc) 2019. Joseph Henry Vogel 29 November 2019, Department of Economics, University of Puerto Rico-Río Piedras [email protected]

Key messages:

• Can one analyze domestic measures on a term which is (1) undefined, (2) deemed not appropriate, (3) unused in science and (4) universally absent in national legislation? The cart is out of sight of the horse. The inclusive approach--examining whatever DSI could possibly mean---has rendered the study leaden. Frank discussion is needed regarding the cart and the horse. Non-rational behavior is germane to frankness.

• Enclose quotations around the first usage of any big idea, thereby signaling that a literature exists. “Bounded openness” and “natural information” are not enclosed or duly attributed in the narrative. The etymology of “digital sequence information” is also absent. Its genesis in “digital biopiracy” sheds light on a modality of ABS that is fair, equitable and efficient.

• Whenever possible, difficult-to-locate references should be complemented by similar open- access references. The publications cited on the economics of information and bounded openness are not the most accessible that exist.

Preamble: Non-conducive to peer review is the template format. Copyediting may require numbered lines to locate errors in punctuation, spelling and grammar; peer reviews do not. Critique requires narrative. This review is the second in a trilogy that addresses foundational flaws in Decision 14/20. Inasmuch as the four commissioned studies are logically ordered, the trilogy should have begun with the first of the four, viz. the study on concept and scope. That, however, was impossible. Publication of the Combined Study 2&3 preceded Study 4 by eight days and Study 1 by twenty-three. A deadline for submission of reviews was one month after publication of the study. Because the Combined Study and Study 4 were released before Study 1, the corresponding reviews are out of sync. Hence, the discussion may seem in medias res. To the extent possible, each review has been written to stand alone. Nevertheless, the reader of any one review should read the other two. ______*The author acknowledges the discussion in the graduate seminar on the Economics of Natural Resources, Fall Semester 2019, Department of Economics, University of Puerto Rico-Río Piedras. Feedback on preliminary drafts began the week after release of Study 4 and continued up to the day before submission. Valuable insights emerged thanks to Juan Pablo Acosta-Barreras, Angel C. Pérez-Dias, Gabriel J Armador-Cruz, Ivan E. Ramírez-Quiñones, Lian Portell-Torres and Paola T. Gautier-Ortiz. 1. Introduction

“Sunk costs” is the metaphor for mistaken decisions that prove resilient. In layman’s terms, a decision made does not justify its continuance. Future benefits must be weighed against future costs. When benefits come up short, action should be suspended. The vociferous rejection of “digital sequence information on genetic resources” offers hope that DSI will be displaced by a better term and the fallacy of sunk costs, averted.1 But how, pray tell, did DSI ever get this far? The cart is out of sight of the horse.

Frank discussion of the cart and the horse is absent in Study 4 on “how domestic measures address benefit-sharing arising from commercial and non-commercial use of digital sequence information on genetic resources”. The frankness should begin in the Introduction and continue through the Conclusion. Self-appraisal should be the overarching recommendation.2 Inasmuch as “[t]here is only one psychology”, 3 non-rational behavior is germane to the discussion. Instincts, proclivities and emotions have frustrated movement forward on a modality of ABS that is fair, equitable and efficient. Study 4 is an opportunity to make a foray into the psychology of decision making in the Conference of the Parties (COP).

Just as one cannot trace DSI in non-existent databanks, one cannot examine domestic measures on DSI when national legislation does not exist. Despite the enclosure of DSI in quotation marks throughout Study 4, statements such as the following enable equivocation: “The EU Guidance Document explains that users must respect any conditions in MAT that deal with ‘DSI’” (lines 14-15, p. 19).4 In response to the request of Decision 14/20 (paragraph 11(e)), one sentence would have sufficed: No national legislation on DSI was found in any country, hence no domestic measure exists.

In light of the impossibility of the commission, the authors of Study 4 adopted a tactic distinct from those of the Combined Study. Whereas the latter attempted to study the one thing that could be traced, viz., Nucleotide Sequence Data (NSD), the former conjured up all conceivable possibilities. Inclusiveness was trumpeted (line 11, p. 8). In the spirit of “moving forward”, 5 What is wrong with that?

1 Submissions from Parties, other Governments, relevant organizations and stakeholders, 2017-2018 inter-sessional period, https://www.cbd.int/dsi-gr/2017-2018/#submissions

2 Jared Diamond, Upheaval: Turning Points for Nations in Crisis, New York, Little, Brown and Company, 2019.

3 Konrad Z. Lorenz and Paul Leyhausen, Motivation of Human and Animal Behavior, New York, Van Nostrand Reinhold, 1973, p. xi.

4 Readers are induced to commit the fallacy of equivocation. The substitution of “DSI” for distinct regulatory language implies that its meaning, albeit undefined, is nevertheless invariant throughout the document. But regulatory language varies.

5 A search of the catchphrase “moving forward” generates 10 pages of hits on the portal of the UN CBD Secretariat.

2 Smoke billows. Lost is the reason for the “phenomenon which goes by the placeholder DSI”, hereafter the Phenom.6 Obscured is the well published solution for ABS.7

Psychology can address the dysfunction. Examination proceeds by itemizing how specific non- rational behaviors make contact with Study 4. Heeding the generic advice of the Noam Chomsky, Parties, other governments and stakeholders must “face honestly and realistically the question of how policy decisions are made”.8

2. Information Overload

Google makes desktop experiments possible. Type "‘access to genetic resources’ benefit sharing” into the search engine. About 269,000 results will emerge. Now enter the Google-Scholar engine and repeat the search. The results shrink by 95% to a still whopping 12,100 results (9:00 PM UTC 24 November 2019). Into this sea of information, comes Decision 14/20.9 Four studies were commissioned. Study 4 is 69 pages and 30,000 words, which is the length of a novella. Similar in wordiness are the Combined Study and Study 1. Will anyone read it all? Digest it all?

A Google Scholar search of “‘information overload’ psychology” generates, ironically, 61,300 hits. Although the neologism was launched by Bertram Gross in 1964, the Greeks had already identified the problem some twenty-five centuries earlier. 10 Gross’ definition can serve the COP well:

Information overload occurs when the amount of input to a system exceeds its processing capacity. Decision makers have fairly limited cognitive processing capacity. Consequently, when information overload occurs, it is likely that a reduction in decision quality will occur.11

6 Peer Review by Joseph Henry Vogel* of the ‘Combined Study on Traceability and Databases’ by Fabian Rohden et al with reference to “Study on Concept and Scope” by Wael Houssen et al and “Study on Domestic Measures” by Margo Bagley et al”. 2019-2020 Inter-sessional Period, Studies on Digital Sequence Information on Genetic Resources, United Nations Secretariat on the Convention on Biological Diversity, 19 November 2019, https://www.cbd.int/abs/DSI-peer/2019/Study2-3/ JosephHenryVogel.pdf

7 For the most recent expression in non-technical language, see Manuel Ruiz Muller, Joseph Henry Vogel, Klaus Angerer and Nicolas Pauchard, “‘Access to Genetic Resources and Benefit-Sharing’ in the Post-2020 Global Biodiversity Framework”, Op- Ed, Enhanced Integrated Framework (EIF), December 2019, https://trade4devnews.enhancedif.org/en/op-ed/access-genetic- resources-benefit-sharing

8 Noam Chomsky, Who Rules the World? New York, Metropolitan Books Henry Hold and Company, 2016, p. 161.

9 Decision adopted by the Conference of the Parties to the Convention on Biological Diversity 14/20, Digital Sequence Information on Genetic Resources, 30 November 2018, https://www.cbd.int/doc/decisions/cop-14/cop-14-dec-20-en.pdf

10 Stina Johnsson, “This will make you reconsider the ‘information overload’ problem”, Medium, 26 March 2018, https:// medium.com/@stinajonsson/this-will-make-you-reconsider-the-information-overload-problem-ae8964445e9d

11 Ibid.

3 What to do? Garrett Hardin offered an answer, anchored in Science:

Fortunately, there is a counterforce to information overload: theory construction. A good theory compacts a vast body of facts into a few words or equations. For example, before Gregor Mendel published his theory of heredity, some 8,000 pages of scholarly discussion had been produced on the subject. All these documents became useless upon the publication of Mendel’s forty-page paper. Today more than a century later, we can condense Mendel’s findings into a single page.12

Applying the appropriate theory---economics---to ABS compacts what needs to be known into ten essential steps and five additional ones.13 What stands out are “natural information” 14 and “bounded openness”.15 They appear in Study 4 but are not enclosed by quotations nor joined as they appear in the literature, i.e. “bounded openness over natural information”.16 Bounded openness was coined by the political scientist Chris May in the context of man-made, or artificial information. The term became a handle for the ABS implications of the economics of natural information, a term which I coined in 1991.17 Both bounded openness and natural information are “big ideas”.18 Insistence on enclosure by quotations and reference to first usage is not

12 Garrett Hardin, Living Within Limits: Ecology, Economics and Population Taboos, New York, Oxford University Press, 1993, p. 102.

13 Joseph Henry Vogel, “On the Silver Jubilee of “Intellectual Property and Information Markets: Preliminaries to a New Conservation Policy” in Manuel Ruiz Miller, Genetic Resources as Natural Information: Policy Implications for the Convention on Biological Diversity, London, Routledge, 2015, p. xviii-xix https://s3-us-west-2.amazonaws.com/tandfbis/rt-files/docs/ 9781138801943_foreword.pdf First appearance of the argument as a numbered list is Joseph Henry Vogel, “VI. Bioprospecting (Case 6): The Impossibility of a Successful Case without a Cartel” in “White Paper: The Successful Use of Economic Instruments to Foster the Sustainable Use of Biodiversity: Six Cases from Latin America and the Caribbean”. Discussion paper for the Summit of the Americas on Sustainable Development, Santa Cruz de la Sierra, Bolivia, 6-8 December 1996 (follow-up to the Summit of the Americas, Miami, USA 1994), 50 pp. Biopolicy Journal, volume 2, Paper 5 (PY97005), 1997. http://www.bioline.org.br/request?py97005 The argument has been rendered into a proposed amendment for the Nagoya Protocol. See, Manuel Ruiz Muller, Joseph Henry Vogel, Klaus Angerer, “Propuesta de elementos legales para un ‘Mecanismo Mundial Multilateral de Participación en los Beneficios’ tal como se contempla en el Artículo 10 del Protocolo y Nagoya sobre Acceso a los Recurso Genéticos y Participación Justa y Equitativa en los Beneficios que se derivan de su utilización”, pages 121-128 in Manuel Ruiz Muller, Recursos genéticos como información natural: Implicancias para el Convenio de Biodiversidad y el Protocolo de Nagoya, 2a edición, Lima, Peru, SwissAid, SPDA, 2017, p. 124, https://spda.org.pe/?wpfb_dl=4131 For French and English translations, “Proposal: Legal Elements for the “Global Multilateral Benefit-sharing Mechanism” as contemplated in the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization”, see https://uni- giessen.academia.edu/KlausAngerer/

14 Joseph Henry Vogel, "The Intellectual Property of Natural and Artificial Information". CIRCIT Newsletter, Melbourne, Australia, June 1991, p. 7.

15 Christopher May, The Global Political Economy of Intellectual Property Rights, 2nd ed, London, Routledge, 2010.

16 Joseph Henry Vogel, Klaus Angerer, Manuel Ruiz Muller and Omar Oduardo-Sierra, “Bounded Openness as the Global Multilateral Benefit-Sharing Mechanism for the Nagoya Protocol” in Charles R. McManis and Burton Ong (eds) Routledge Handbook on Biodiversity and the Law, London, Routledge, 2018, p. 386.

17 Joseph Henry Vogel, et al, “The Economics of Information, Studiously Ignored in the Nagoya Protocol on Access and Benefit Sharing” 7/1 Law Environment and Development (LEAD) Journal, 2011, p.59, http://www.lead-journal.org/content/11052.pdf

18 Stanley Fish, “How to Win an Academic Argument”, The Chronicle Review, 2 September 2016.

4 fastidiousness much less self-promotion.19 Without the quotations and attribution, readers will not be able to navigate the rough seas of information overload.20 However, if the purpose of the authors is to billow smoke on the water, then bounded openness and natural information should remain unjoined, unenclosed and unattributed.

Similarly curious in Study 4 is unconcern for etymology. The origin of “digital sequence information” can shed light on dysfunction. No one queried for this Peer Review was able to pinpoint the authorship of DSI, other than to say that it was first heard at a meeting of the 2015 Synthetic Biology AHTEG.21 Google is indeed a powerful tool. The earliest appearance of “digital sequence information” appears in a December 2015 monograph by the lead author of Study 4, Margo A. Bagley. The title is “Digital DNA: The Nagoya Protocol, Intellectual Property Treaties, and Synthetic Biology”.22 On page 11 of the monograph, Bagley refers to “digital information” and “sequence information”, which melds into “digital sequence information”. From the absence of quotations around the portmanteau, the reader may conclude that Bagley is its author.

Etymology is not a digression. The aforementioned monograph contextualized “digital sequence information” in an extensive quote about “digital biopiracy” from the ETC Group and Friends of the Earth.23 Context elucidates meaning and is allowable for interpretation of Decisions, according to Article 31 of The 1969 Vienna Treaty on Conventions.24 Discussion on DSI cannot divorce from whence it came, viz. the evasion of ABS obligations.

Correct nomenclature facilitates compaction and theory construction. The famed naturalist E.O. Wilson writes, “The first step to wisdom, as the Chinese say, is getting things by their right name.”25 In discussions over DSI, some have argued that we may call the Phenom whatever we wish and define it however we please.26 Antecedents exist in Economics. Daniel Kahneman won the 2002 Nobel Memorial Prize for his work on “Prospect Theory”.27 The neologism was an

19 For a comprehensive look at infractions, see Miguel Roig, “Avoiding Plagiarism, Self-plagiarism, and other Questionable Writing Practices: A Guide to Ethical Writing”, 2015, https://ori.hhs.gov/sites/default/files/plagiarism.pdf

20 Stanley Fish also explores other rationales for the quotation of a mere two words, see note 18.

21 Edward Hammond, “Comments of Third World Network on Digital Sequence Information”, SCBD/NPU/DC/VN/KG/RKi/ 87804, 1 June 2019, p. 3, https://www.cbd.int/abs/DSI-views/2019/TWN-DSI.pdf

22 Margo A. Bagley, “Digital DNA: The Nagoya Protocol, Intellectual Property Treaties and the Nagoya Protocol”, Wilson Center, December 2015, https://www.wilsoncenter.org/sites/default/files/digital_dna_final_0.pdf

23 Ibid.

24 Vienna Convention on the Law of Treaties (with annex), 23 May 1969, p. 340, https://treaties.un.org/doc/Publication/UNTS/ Volume%201155/volume-1155-I-18232-English.pdf

25 E.O. Wilson, Consilience, New York, Knopf, 1998, p 4.

26 See note 21, p. 3.

27 Press Release. The Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel 2002, Daniel Kahneman and Vernon Smith, https://www.nobelprize.org/prizes/economic-sciences/2002/press-release/

5 empty vessel into which he and Amos Tversky modeled non-rational behavior, including sunk costs and probability judgments (the latter to be discussed in Section 5).

As long as ABS is pursued in good faith, the arguments it-doesn’t-matter-what-we-call-it and empty-vessel do not apply. The reason is prima facie. DSI includes what should be excluded and excludes what should be included.28 No wonder no one wants to claim authorship! DSI does not facilitate compaction and theory construction. In stark contrast, natural information does. Why is natural information not fully discussed in Study 4?

3. Denial and Self-Deception

Many forms of denial exist. In ABS discussions, the riskiest is assertion of the opposite. For example, saying that the failure of Material Transfer Agreements (MTAs) is success, destroys credibility. Less risky is ignoring the failure and making no comments as to analyses thereof. The safest strategy is to acknowledge both the failure and the analyses, but barely. Acknowledgement en passant is the most insidious of the three strategies.

Study 4 chooses the safest and most insidious strategy. Embedded in a sentence of 59 words is the clause “the economics of information can assist in understanding policy and regulatory options” (lines 35-36, p. 20). The economics of information does not merely “assist in understanding policy and regulatory options”. The economics of information explains how MTAs are unfair, inequitable and inefficient. It justifies multilateralism and portends royalties far in excess to the 0.1% institutionalized in the MTAs concluded by Brazil. The clause “assist[ing] in understanding...” is milquetoast. References to “bounded openness” and “natural information” in Study 4 are similarly fleeting.

Analysis reveals other examples of denial, also lawyerly. Consider the following passage:

Japan and Switzerland...may cover benefit-sharing from utilization of ‘DSI’, but allow the confidentiality of such negotiated terms to take precedence over obligations to monitor any compliance with such terms (lines 14-17, p. 20).

The reader will suspect that (1) royalties are not paid (who would know?) or (2) the payment is on the Brazilian scale of 0.1%. However, the follow-up disarms: “They acknowledge that commercial confidentiality prevents drawing insights from the utilization of ‘DSI’ in MAT” (line 17-18, p. 20). In other words, the Japanese and Swiss systems rely on trust that neither (1) or (2) obtains. A system dependent on trust invites Users to deceive Providers, and then Providers to deny that they are being deceived. Self-deception is the worst form of denial.

28 See note 6, p. 4.

6 Bias can also turn on distinct interpretation of just one word. Consider “Contracts seem to be a preferred tool which countries and institutions are deploying to regulate conditions for utilization of ‘DSI’ generated from access to a physical material” (lines 8-10, p. 30). By virtue of the databases being internet accessible, third-parties can easily frustrate national tools. So, contracts may seem to be a preferred tool simply because a Global Multilateral Benefit-Sharing Mechanism (GMBSM) does not exist. Note well: Japan and Switzerland voiced vigorous objection to a GMBSM in open fora at COP14. The sentence should be revised as follows: “Contracts are effectively the only tool now available that countries and institutions can deploy to regulate conditions for utilization of ‘DSI’ generated from access to a physical material” (lines 8-10, p. 30). Denial of that suggested revision is expected.

4. Fear and Flight

DSI is about ABS no matter whether the study be on concept and scope, traceability and databanks or domestic measures. Discussion of obligations unmet induces fear, and fear a range of responses.29 Some are alluded to in Study 4 but one is denied, viz. flight. Let’s consider the responses beginning with the least stressful: dismissal. Users will argue that, lo and behold, the ABS obligation has already been met:

Some countries intentionally choose to omit domestic measures on “DSI” and benefit- sharing in order to promote open access to “DSI” to facilitate scientific advancement. Such countries typically regard open access as a form of non-monetary benefit-sharing. This might be described as an intentional “non-measure,” i.e. an absence of measures designed to promote an open access policy objective (lines 25-30, p. 6).

The above paragraph begs closure “Or it might be described as biopiracy ‘happening on a vast and almost unimaginable scale’”.30

Provider rejection of the we-already-paid-you argument lies in Mutually Agreed Terms. No term was ever agreed to make databases The Benefit. Once Users are so disabused, fear will return with a vengeance. Other responses will kick in. They need not be elaborated here. Suffice it to say that unsavory behaviors will also probably not work. Flight is the most dignified option for Users to regain an internal locus of control.31 The authors of Study 4 do not mention the re- location of R&D to the non-Party, viz., the USA. However, other lawyers do.

29 Arash Javanbakht and Linda Saab, “What Happens when we Feel Fear”, Smithsonian, 27 October 2017, https:// www.smithsonianmag.com/science-nature/what-happens-brain-feel-fear-180966992/

30 Joseph Henry Vogel, “Reflecting Financial and Other Incentives of the TMOIFGR: The Biodiversity Cartel”, in Manuel Ruiz and Isabel Lapeña (editors) A Moving Target: Genetic Resources and Options for Tracking and Monitoring their International Flows, Gland, Switzerland, IUCN, 2007, p. 58, http://data.iucn.org/dbtw-wpd/edocs/EPLP-067-3.pdf

31 Richard B. Joelson, “Locus of Control”, Psychology Today, 2 August 2017, https://www.psychologytoday.com/us/blog/ moments-matter/201708/locus-control

7 In an alert titled “The Nagoya Protocol at Its 5th Anniversary: Legal Lessons Learned in the Pharmaceutical, Food and Cosmetics Sectors”,32 Covington & Burling LLP give three reasons for transnationals to think twice about flight (billable hours, charged in 15-minute chunks, are in play): • Companies must still comply with the ABS laws of provider countries (e.g. India or South Africa). Non-compliance could be sanctioned against subsidiaries or activities in those jurisdictions.

• U.S. headquartered companies often have multiple research sites across the world, including in Switzerland, Korea, or the European Union. Even if only a small part of the R&D is conducted in such a location, authorities may expect the entire product development process to be Nagoya-compliant.

• Carving out the U.S. from a global track and trace tool may undermine its effectiveness. For instance, even if all R&D on biological materials has been carried out in the United States, a company may still be asked to provide evidence to that effect.33

Is the above argument the lawyers’ best? If one part of R&D from a transnational is conducted in a Party, that part can be dismantled for subsequent re-assembly in the non-Party. Antecedents exist. Since the 1990s, whole manufacturing industries have been dismantled in the OECD member countries for re-assembly elsewhere. Closer to ABS is the story of stem-cell research and safe havens.34 Jurisdiction shopping was proposed as a new and emerging issue for COP13 and COP14.35 At the behest of then Executive Secretary Braulio Dias, The Subsidiary Body on Scientific, Technical and Technological Advice did not take it up.36

Jurisdiction shopping concerns not just the price war among Providers but also site location among Users. The pharmaceutical, food and cosmetics sectors are immensely profitable. Will countries tolerate losing User competitiveness to another country, simply because that country is a non-Party? Is such competition fair? Equitable? Efficient? The option of flight will reverberate among Users. Resentment will build within countries.

32 Covington & Burling LLP, “The Nagoya Protocol at Its 5th Anniversary: Legal Lessons Learned in the Pharmaceutical, Food and Cosmetics Sectors”, Life Sciences, 18 September 2019, https://www.lexology.com/library/detail.aspx?g=2f0db598- a133-4df2-a67d-48366a0c2a88

33 Ibid, p. 7.

34 Wayne Arnold, “Singapore Acts as Haven for Stem Cell Research”, The New York Times, 17 August 2006, https:// www.nytimes.com/2006/08/17/business/worldbusiness/17stem.html

35 New & Emerging Issues, Convention on Biological Diversity, https://www.cbd.int/emerging/

36Braulio Dias, “New and Emerging Issues Relating to the Conservation and Sustainable Use of Biological Diversity: Note by the Executive Secretary”, Convention on Biological Diversity, 18 January 2016, https://www.cbd.int/kb/record/meetingDocument/ 106931

8 Sunk costs also applies to the CBD and NP. Article 38 of the CBD and Article 35 of the NP are titled the same: Withdrawal. The first step toward withdrawal are calls for a review of the CBD.37

6. Confusion in Probability Judgments

Is all this angst about ABS justifiable? The question is psychological and economic.

“Multiple perceptions also exist with regards to benefit-sharing and how this relates to ‘DSI’” (line 40, p. 30). The authors of Study 4 do not avail themselves to behavioral economics, for which Nobel Memorial Prizes have been granted in 2002 and 2017. Although there is only one psychology, Providers and Users show distinct probability judgments in perceptions with regards to benefit sharing. Analysis means separation.

Providers: A blockbuster “hit” is an extremely low-probability event but one which could be fantastically profitable. Prior to the ratification of the CBD in 1993, taxol, vincristine and polymerase-chain reaction raised awareness of billion-dollar possibilities. The mathematics can be expressed in words: the sum of the probabilities of hits multiplied by the corresponding values of the events will justify public expenditure on a modality to achieve ABS, as long as associated transaction costs are lower than the expected sum. That sentence requires unpacking. What is the probability of a hit? What is the value of a hit? The mathematical product of those answers is the expectation. What is the least cost modality to enable compensation? If expenditure on that modality is less than the sum of expectations, then ABS is worth it.

Nuances exist. The value of the events depends on whether Providers compete on price, i.e. the royalty rate, or fix the percentage and distribute rents.38 The 0.1% of Brazil reflects competition with other Parties of the tropics. It is two orders of magnitude less than percentages charged for other types of monopoly intellectual property. Should bounded openness become the modality, not only will royalty percentages rise, the probability of hits will soar. Access is truly facilitated. Fortunately, the calculations do not have to be exact. Enough blockbusters have already been documented to expect that the costs of a GMBSM could be covered many times over.39

37 Prathapan, K. & Dharma Rajan, Priyadarsanan. (2019). “Convention on Biological Diversity Need for a Review”, Economic and Political Weekly 54, pp. 60-62, https://www.researchgate.net/publication/ 330579897_Convention_on_Biological_Diversity_Need_for_a_Review/citation/download See also, Prathapan, K.D., R. Pethiyagoda, K. S. Bawa, P.H. Raven, P.D. Rajan & 172 co-signatories from 35 countries. ‘When the cure kills: CBD limits biodiversity research’, 360/6396 Science, 2018, pp. 1405-140, http://science.sciencemag.org/content/ 360/6396/1405.

38 Definition of economic rent: “The return for the use of a factor in excess of the minimum required to bring forth its service”, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/economic%20rent

39 See note 13, “On the Silver Jubilee” p. xxiv.

9 Users: Confusing the low probability of an event with a low value of its expectation is cognitive dissonance.40 An enlightened State intervenes and constrains choice to simulate rational choice. One may think of zoning laws against building in the flood plain, compulsory use of seat belts, universal health insurance, and so on. Constraints on choice enhance welfare. The State protects us from our own poor decisions. The biotechnology industry is peopled by MBAs who understand, all too well, probability analysis. When they describe Provider expectations for ABS as “unrealistic” or “speculative”, they engage in deception.

7. Conclusion: The Accidental Trilogy

Garrett Hardin perceived a solution to the problem of information overload: theory construction. Woefully, Study 4 skirts construction in obeisance to fact finding. Information explodes. The cart is out of sight of the horse. As Hardin would have anticipated, the cart does not budge.

One reason for the studies commissioned in Decision 14/20 was the study commissioned in Decision 13/16.41 The 2018 Fact-finding Report on DSI was deemed wanting.42 Blame, however, can be deflected. One will hear that its authors were put in a straight-jacket to find facts and not entertain theories. Can that defense be recycled for Decision 14/20 and, G-d forbid, future fact- finding commissions on DSI? Authors who seek commissions should learn from the traumas of predecessors. The authors of Study 4 had a decisive advantage over those of the 2018 Fact- finding Report: Decision 14/20 was impossible to execute. One cannot examine domestic measures on national legislation that does not exist. The impossibility meant wiggle room. Rather than explore how the Phenom originated in “digital biopiracy” and go from there, the authors conformed to the status quo under the guise of inclusiveness.

Division of labor should not apply to the four studies. The authors of Study 4 may have wrongly thought that Study 1 would entertain theory as they dealt with (non-existent) facts on domestic measures. Both accepted a fool’s errand. Wiggle room was the opportunity to understand the dysfunction that has beleaguered all fourteen Conferences of the Party. Enough said.

Study 1 will now be analyzed in the last of this accidental trilogy of peer reviews. The focus will be on the most injurious of all non-rational behaviors in any dominance hierarchy: taboo.

40 Leon Festinger, A Theory of Cognitive Dissonance, Palo Alto, CA, Stanford University Press, 1957.

41 Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity XIII/16. Digital Sequence Information on Genetic Resources. 16 December 2016. https://www.cbd.int/doc/decisions/cop-13/cop-13-dec-16-en.pdf

42 For the Report and peer reviews, Convention on Biological Diversity, https://www.cbd.int/doc/c/e95a/4ddd/ 4baea2ec772be28edcd10358/dsi-ahteg-2018-01-03-en.pdf and https://www.cbd.int/dsi-gr/2017-2018/#peerreview

10