Some key issues at COP7

When the 7th Meeting of the Conference of the Parties (COP7) gathers in Kuala Lumpur in February, it should identify the obstacles and constraints to the

implementation of the Convention on Biodiversity. The following article considers some of the key challenges facing the countries which have committed themselves to the implementation of this international treaty.

Chee Yoke Ling

ITS birth was driven by the devastation of tropical rainforests. It has galvanised commitments from 188 countries, more than any other global environmental treaty. Over the last 10 years, the Convention on Biological Diversity (CBD) has generated many work programmes and decisions.

However, as with other global environmental agreements, implementation is far from the papers written with ideas and commitments. Biodiversity loss continues, and is even accelerating in many parts of the world.

When the 7th Meeting of the Conference of the Parties (COP7) to the CBD gathers in Kuala Lumpur, from 9 to 20 February, there will be a stocktaking of the last 10 years and more decisions to be made to address uncharted areas. There is no doubt that the CBD commands support, and from the beginning has provided a good start to protect biodiversity for sustainable development.

The CBD incorporates the Precautionary Principle that is fundamental if we are to seek development without harming and destabilising the basic life web for human existence. This is critical especially since our knowledge of biodiversity and ecological systems is still severely lacking, a fact clearly acknowledged by the drafters of the CBD. Thus the CBD Preamble registered an urgent need to develop scientific, technical and institutional capacities to provide the basic understanding upon which to plan and implement appropriate measures. Meanwhile, ‘it is vital to anticipate, prevent and attack the causes of significant reduction or loss of biological diversity at source’.  Thus ‘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 minimise such a threat’.

The CBD has also nurtured the development of the Cartagena Protocol on Biosafety, the first international effort to begin regulating a new technology so that biodiversity and human health will not be threatened.

At COP7, identifying the obstacles and constraints to implementation of the CBD would be a very important exercise, in addition to renewed political will and commitment of resources to turn words into action.

The CBD captures five main challenges for all countries:

·        Increasing knowledge on genetic resources and ecosystems with the aim of conserving biological diversity.

·        Developing technologies and products that promote the use of genetic resources, and knowledge relating to genetic resources, in an environmentally sound and sustainable manner. In this respect, a central issue is technology assessment as exemplified by the growing calls for biosafety, the Precautionary Principle and the ecosystem approach.

·        Increasing knowledge on the social, economic, cultural and ethical aspects of the use of genetic resources and knowledge associated with such use. In particular, the protection of traditional and indigenous knowledge of local communities and indigenous peoples in developing countries.

·        Examining the cross-cutting issue of the relationship between intellectual property rights (IPRs) and sustainable development, including the conservation and sustainable use of biological resources. The implications of IPR regimes for the rights and interests of developing countries require urgent attention and careful assessment, followed by appropriate national and regional measures.

·        Developing a mechanism for international cooperation that will ensure fair, equitable and sustainable exchange and sharing of the benefits arising from the sustainable use of biological resources.

The 2010 target

A sense of urgency was re-injected when the continuing biodiversity loss prompted the 2002 World Summit on Sustainable Development to set a deadline for results. The 2010 target was adopted, to strive for a ‘more efficient and coherent implementation of the three objectives of the Convention and the achievement by 2010 of a significant reduction in the current rate of loss of biological diversity’. This is to implement the 7th Millennium Development Goal to ensure environmental sustainability which has a target to integrate the principles of sustainable development into country policies and programmes and reverse the loss of environmental resources. Dealing with biodiversity loss is one indicator towards this goal, hence the 2010 target.

However, it is also recognised that there are no clear agreed criteria, indicators and tools to measure biodiversity loss, let alone measure any reduction in the rate of biodiversity loss. Therefore there is a need to increase knowledge of biodiversity and develop the necessary criteria, indicators and tools for biodiversity conservation and sustainable use in order to meet the 2010 target.

Ministers at COP7 will have a roundtable discussion on scientific assessment for conservation and sustainable use of biodiversity. The Precautionary Principle and socio-economic assessment should also be an integral part of scientific assessment as sustainable livelihoods and poverty eradication are also central to the Millennium Development Goals.

Parties should:

·        ensure that national development planning concretely integrate biodiversity conservation and environmental protection into policies and projects, bearing in mind the 2010 target - many countries have adopted national biodiversity strategies which are inadequately or not implemented;

·        halt further development of sensitive and vulnerable areas to conserve biodiversity and protect the environment;

·        halt further destruction and land conversion of coastal and inland wetlands in accordance with commitments under the respective Work Programmes of the CBD;

·        recognise the rights of and support local communities in their efforts to conserve the diversity of agricultural, forest and fisheries resources.

Implementing the Precautionary Principle

A key challenge for all countries is the implementation of the Precautionary Principle which underpins the multilateral environment agreements (MEAs) related to biodiversity and climate change. The Precautionary Principle is a central strand in weaving the inter-linkages between poverty alleviation, food security and food sovereignty, human health, ecosystems management, biodiversity conservation and sustainable use as well as climate stability. It is crucial for the assessment of technologies, products and activities that impact on all those dimensions. 

Preambular paragraph 9 of the CBD affirms this Principle:

‘Where there is a threat of significant reduction or loss of biological diversity, lack of scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat.’

The Cartagena Protocol on Biosafety, born of the CBD, reaffirms this Principle and incorporates it into national decision-making on ‘living modified organisms’ to ensure biodiversity conservation and sustainable use, and the protection of human health.

The Principle is also very important in reversing the burden of proof. Currently, local communities, indigenous peoples and the public at large have to prove that an activity or product has adverse impacts on biodiversity and human health. Socio-economic impacts are often disregarded, from rights to resources and traditional knowledge to loss of livelihoods. The Precautionary Principle shifts the responsibility to the proponent of a project or activity to show that there will be no adverse impacts. This means integration of biodiversity conservation, ecosystem approach and socio-economic considerations into technology or activity assessments and decision-making. This goes beyond the current environmental impact assessment parameters.

However, there is intense rejection by major developed countries where trade and narrow economic interests dominate governments’ positions in international negotiations and national implementation. There is confusion and apprehension among most developing countries that this Principle would prevent them from obtaining technologies and products for economic development, when in fact application of the Principle helps to ensure the development of appropriate and environmentally sound technologies. There is even pressure and threats by some developed countries that applying the Precautionary Principle would lead to challenges and sanctions at the World Trade Organisation. For example, the US-European Union dispute at the WTO over Europe’s regulation of genetically modified organisms may create a ‘chilling’ effect among countries that want to have strong biosafety policies, laws and measures.

There are also concerns that the Principle could be abused and become a protectionist tool in international trade. Again, this requires fuller understanding of the Principle, and its implementation is something that all concerned countries and institutions should work on to achieve the objectives of sustainable development.

Australia’s vehement objection to the precautionary approach as a guiding principle in dealing with invasive alien species under a CBD COP6 decision is an example of the prevalence of short-term economic interests and the emphasis on genetic engineering even though the problems associated with invasive alien species are well accepted and Australia itself has very strict rules at the domestic level. This will be a key issue to be resolved at COP7, with serious implications for the application of the Precautionary Principle under the CBD and Cartagena Protocol.

Parties should:

·        facilitate the resolution of the IAS issue in a manner that will not undermine the Precautionary Principle, while safeguarding the integrity of the decision-making process of the COP;

·        support more research and understanding of the Precautionary Principle, for  application and implementation at the national level - both as a principle and tool in assessment and decision-making regarding technologies, products and activities, as well as in policy/law formulation;

·        strengthen the incorporation of the Principle in international and regional agreements and work programmes, especially in the CBD and other related agreements and processes;

·        Build public awareness to support the application of the Principle in decision-making.

Biodiversity conservation and sustainable use for promoting sustainable development and community rights

The right to development, subject to sustainability principles, and the rights of indigenous peoples and local communities are recognised in numerous international instruments and work programmes of various UN conferences and processes. The CBD has been an important instrument for raising the profile of the traditional knowledge, practices and innovations of indigenous peoples and local communities. The FAO International Treaty on Plant Genetic Resources for Agriculture is an important contribution to the evolving development of fair and equitable benefit-sharing regimes, and lessons can be drawn from that process by the CBD Parties.

However, the reality is that the rights of peoples to land, forest, water, agricultural seeds and their own knowledge continue to be violated or threatened.

One arena of conflict is with regard to Protected Areas, where the conventional designation of an area for conservation often leads to conflicts with local communities or disregards consistency with other ecosystem services. The World Park Congress in Durban clearly set out the shift in approach to conservation that builds strong linkages to social dimensions (especially the rights and interests of indigenous and local communities), sustainable use in the context of ecosystem services and the ecosystem approach, as well as global concern for biodiversity conservation. There is recognition of biodiversity and ecosystem services as integral to human livelihoods with strong linkages to agriculture, water, energy and health.

The first report of the Millennium Ecosystem Assessment that has just been published (‘Ecosystems and Human Well-Being’) is the latest documentation that contributes to the current trends in the international biodiversity discussions that can guide decision-making at COP7, regionally and nationally.

Parties should:

·        recognise and enforce the rights of indigenous peoples and local communities to their lands, forest and other resources  in conservation or development projects;

·        prevent the ‘biopiracy’ of local biological resources and traditional knowledge;

·        ensure that there is prior informed consent of indigenous peoples and local communities before their resources and/or knowledge is used for research and commercial development;

·        ensure that there is fair and equitable sharing of benefits with indigenous peoples and local communities when their resources and/or knowledge are used;

·        implement the CBD in accordance with the principle of common but differentiated responsibilities at the international level so that equity and fairness can be achieved.

Access and benefit sharing, biopiracy and intellectual property rights

The decisions that will be made at COP7 on access and benefit sharing, and the relationship between the CBD and WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), will shape the debate and rules that are to be developed in coming years. There are fundamental problems when the concept of access and benefit sharing becomes divorced from the principles and objectives of the CBD.

For the first time, global rules expanded patents into the biological field with the adoption of the TRIPS Agreement. But the majority of the world did not realise at that time that the reason was to facilitate private monopoly over genes (including human genes) and microorganisms, and the commercialisation of genetically engineered seeds, fish, animals, vaccines and other pharmaceuticals.

Despite publicised campaigns and specific cases of biopiracy (many NGOs, indigenous peoples’ organisations and farmers’ groups regard the expansion of patents and other IPRs as ‘legalised biopiracy’), the situation is actually worsening. In addition to the Human Genome Diversity Project that targets human beings, initiatives are ongoing to map microorganisms and recently the genetic resources of Antarctica.

Mapping is often the precursor to prospecting and private claims through IPRs. Yet little is known of these activities and the actors involved, let alone the implications for biodiversity and peoples. What is clear is that economic and legal systems continue to favour commoditisation and privatisation of biological resources and even the genetic make-up of human beings, moving further away from sustainability, poverty alleviation and social justice. 

While an alternative benefit-sharing system, instead of current IPRs, was envisaged under the CBD to ensure fairness and equity that would in turn contribute to poverty alleviation and sustainable development, the TRIPS Agreement has dominated so far. There is also a growing assumption in activities undertaken in the name of the CBD, that access is only a question of negotiating terms for bio-prospecting and benefit sharing is based on accepting patents and other IPRs.

The reality is that there are many types of benefits, and the basic issues of private ownership of nature and community knowledge through IPRs have to be resolved and clarified. Benefit-sharing systems should be in place before access can be granted.

At the heart of access and benefit sharing are the rights of indigenous peoples and local communities to their lands, resources and knowledge (which include communal, inter-generational rights); the sovereign right of states to safeguard national heritage; the principle of prior informed consent (which includes the right to say ‘No’); and limits on IPR claims over resources and knowledge. It is the responsibility of national governments to design national policies and laws on access and benefit sharing in accordance with those rights and principles. 

Parties should:

·        promote at COP7 a strong decision on access and benefit sharing, including a process to develop a legally binding international agreement, that safeguards the rights of developing countries, indigenous peoples and local communities as well as the conservation and ecological values of biodiversity by creating legally binding obligations on user countries and their institutions; 

·        increase the capacity of governments, NGOs, indigenous peoples and local communities to monitor bio-prospecting;

·        widen and strengthen the community-level monitoring and defence mechanisms against biopiracy and the ability of communities to assert their right to prior informed consent;

·        increase the monitoring of research activities and public participation in policy/law-making to ensure that these take place in a transparent and accountable manner;

·        support and undertake research and advocacy nationally, regionally and globally in order to reverse the expansion of IPRs and other forms of private appropriations, prohibit IPR claims over life-forms, and replace these with regimes that protect biodiversity and peoples, integrating the inter-generational dimension.

In line with their commitments under the CBD, the national intellectual property policy and laws of Parties should be clear on:

·        equitable benefit sharing at the local and national level;

·        the extent of patents over biological resources especially micro-organisms and micro-biological processes;

·        the protection of traditional knowledge under alternative systems of protection;

·        regulating restrictive business/trade practices of the corporations or institutions that bio-prospect and exploit biological resources and traditional and local knowledge.

Technology assessment, transfer and cooperation

Technology transfer and cooperation is multi-faceted in nature; it is a complex package of techniques that can contribute to sustainable development only when the environmental, human health and socio-economic dimensions are fully integrated within an inter-generational context. Technology decisions are however largely dominated by dominant commercial interests.

Discussions on the relationship between the CBD and the TRIPS Agreement have been largely left to the World Intellectual Property Organisation (WIPO) and the WTO. These have not adequately addressed the role of IPRs as obstacles to technology transfer though some developing countries have raised the issue. The performance of WIPO with regard to genetic resources, traditional knowledge and their interface with IPRs has not been satisfactory. Many developing countries had originally called for the CBD Secretariat to lead a study on TRIPS and the CBD but this has instead been handed to WIPO and the WTO.

Thus the COP should defend the integrity of the CBD and provide guidance and direction to further studies and proposals on IPRs as they relate to the CBD’s objectives and principles.

Meanwhile, the overall situation is that knowledge and technologies in developed countries are increasingly proprietary in nature (i.e. given legal protection as private property under national laws on IPRs), and biological resources (and their parts) are also becoming proprietary. This trend is an obstacle to the diffusion of technology, and to the fair and equitable access to technologies for all countries.

‘Biopiracy’ of natural resource, traditional knowledge and public domain research outputs of developing countries by entities of developed countries continues 10 years after the CBD entered into force. At the same time, the transfer of technology to developing countries does not have a good record, while technology cooperation is minuscule, if at all. The dominant experience has been no transfer; transfer at high costs (thereby causing developing countries to pay high prices for products such as pharmaceuticals, and royalties for technology); as well as transfer of obsolete or hazardous technologies and products.

Over the last decade, following commitments under various UN Summits and agreements, developed countries are obliged to transfer environmentally sound technologies to developing countries. However, the reality has been a victory of private IPRs over affordable access to environmentally sound technology for developing countries. Experiences in the Montreal Protocol on Ozone Depleting Substances and the Climate Change Convention, and studies conducted by international organisations and independent research institutions, show that IPRs are an obstacle rather than a tool for technology transfer as is often claimed by corporations and their supporters. Worse, strict IPR regimes can discourage research and innovation by local institutions in developing countries. This is largely due to the fact that most patents and other IPRs in developing countries are held by foreign researchers or firms.

Thus, in establishing an Ad Hoc Expert Group on Technology Transfer and Cooperation as proposed by SBSTTA-9, COP7 should adopt a work programme on technology transfer and cooperation that:

·        protects the rights, knowledge and technological innovations of local and traditional communities as human rights;

·        includes, in addition to product development, technologies that are relevant to monitoring, conservation and planning;

·        ensures that intellectual property rights regimes support and do not undermine the objectives of the CBD, by requiring that further studies should cover the provisions of various international (especially the WTO TRIPS Agreement), regional and bilateral agreements which may have the effect of hindering transfer of technology to developing countries and provide recommendations to mitigate the negative effects of these provisions. The scope of the studies should also include proposals for amending or clarifying existing provisions to harmonise them with the principles and objectives of the CBD;

·        promotes and strengthens international cooperation in public research and technology development in developing countries with full and effective public participation in determining the direction and priorities of research;

·        develops and implements a comprehensive and holistic framework, methodologies and specific capacity-building activities for technology assessment (including the assessment of the impact on biological diversity, environmental and human safety, as well as socio-economic impacts) and decision-making so that the development and transfer of technology is consistent with the CBD objectives (conservation, sustainable use and equity) and the Precautionary Principle as embodied in Preambular paragraph 9 of the CBD;

·        examines the restrictive practices adopted by transnational corporations (TNCs) in the area of transfer of technology and recommend ways to prevent TNCs from taking recourse to such restrictive practices. Simultaneously, recommendations could be made as to the methods through which TNCs could be made to effectively transfer technology that supports the objectives of the CBD.  

Chee Yoke Ling coordinates Third World Network’s environment programme.