by Cecilia Oh

Nairobi, 26 May 2000 -- The Fifth Conference of Parties to the Convention on Biological Diversity (COP5) Friday adopted the decision to establish an Ad Hoc Open-Ended Working Group to address issues relating to access to genetic resources and the equitable sharing of benefits.

The Working Group is mandated to develop guidelines on relevant elements of access and benefit sharing. The scope of the mandate includes consideration of the terms for prior informed consent and mutually agreed terms; issues related to in situ and ex situ conservation and sustainable use; mechanisms for benefit sharing; and the means to ensure the respect, preservation and maintenance of knowledge, innovations and practices of indigenous and local communities.

In carrying out this mandate, the Working Group will take account of the reports of the Panel of Experts on Access and Benefit Sharing.

The Experts Panel, which first met in Costa Rica last year, has also been reconvened by COP5 to continue further work on outstanding issues from its first meeting.

This decision has been regarded by some delegates here as an effort to establish a process for the comprehensive consideration of the access and benefit sharing issues, whilst others are concerned that the concrete actions and decisions will be further delayed by the Working Group process.

One outstanding issue that had not received sufficient discussion during COP5 is that of the relationship of intellectual property rights (IPRs) with access and benefit sharing arrangements.

A number of developing country delegates expressed disappointment that COPV did not take the debate on IPRs, begun last year during the CBD's Intersessional Meeting in June, any further.

The Panel of Experts established to consider access and benefit sharing issues, at its first meeting in Costa Rica, October last year, had failed to come to any conclusions about the role of intellectual property rights in the implementation of access and benefit sharing arrangements. Closely related to this issue is the question of the relationship between the TRIPS agreement, with the CBD.

During the High-Level Segment of COP5 on May 24, the Malaysian Minister of Environment, Law Hieng Ding, expressed concern that the provisions of the CBD, and national efforts to safeguard biological resources, would be adversely affected by the implementation of the WTO TRIPS Agreement, particularly by Article 27.3(b) - which requires patenting of certain biological resources. "Malaysia takes note of the debate relating to the issue of patenting of biological resources in the World Trade Organisation. Malaysia fully supports the position of many developing countries that the TRIPS Agreement is incompatible with the provisions of the CBD, and their call for its revision to the effect that all life forms and natural processes should not be patentable," he added, in his statement.

He called on COP5 to send a strong message to the WTO to take appropriate measures to harmonise the provisions of the TRIPS Agreement in accordance with the objectives and provisions of the TRIPS Agreement.

The Malaysian Minister's call was supported by the African Group of countries at COP5. In a declaration issued Friday morning, the African Group called on all Parties, governments and international organisations to oppose the patenting of life forms.

Law Hieng Ding said at the high-level segment that while bio-technology offered great potential for human progress, it should be recognized that modern biotechnology, through genetic manipulation, involved introducing new or desirable traits, often from alien or different taxonomic species, into naturally occurring plant and animal species. As all species on the planet co-exist in a finely balanced and intricate arrangement, it was important to ensure that LMOs (live-modified organisms), while exhibiting qualities favourable to mankind do not upset the fine ecological balance among species. The Cartagena (biosafety) protocol struck a fine balance between trade interests in the growing biotechnology industry and the environmental and socio-economic concerns of developing countries. Malaysia hoped all Parties and other governments would institute measures for early entry into force of the protocol. Malaysia also fully supported the proposal for a broad mandate to the Inter-governmental Committee for the Cartegena Protocol to ensure that the preparatory work for the entry into force of the protocol was completed as expeditiously as possible. And pending into force of the protocol, all Parties and Governments should adopt on a voluntary basis a transparent and responsible approach towards provision of information relating to transboundary movement of LMOs. And the private sector too should adopt corporate care and social responsibility regarding the transboundary movement of LMOs.

In a communique released Friday after their meeting, the African Group also said that it would support the good work begun by developing countries in the WTO (the African Group, the Like-Minded Group and the Least Developed Countries) to have TRIPS, and in particular, its Article 27.3(b), revised so that the patenting of life forms, including plants, animals, microorganisms and biological processes, shall be prohibited.

The African Group called on all Parties, Governments and international organisations to further strengthen the position of the African Group, the Like-Minded Group and the Least Developed Countries in the WTO, with regard to their proposals for harmonising the provisions of the TRIPS Agreement with that of the Convention on Biological Diversity.

At the national level, the African Group urged countries to examine carefully existing and proposed laws on intellectual property rights, especially those aimed at implementing TRIPS so as to maximise room for national development, as well as, for protection of Community and Farmers' Rights.

The decision of COP5 on the relationship of IPRs/TRIPS Agreement with the CBD adopts the recommendation of the Intersessional Meeting of June last year. That decision, invited the WTO, inter alia, to acknowledge the relevant provisions of the CBD, and to explore the interrelationship of the TRIPS Agreement and the CBD.

Many delegates had then expressed concern that the decision was not strong enough to reflect their serious concerns over the impact of the TRIPS Agreement and IPRs on the conservation and sustainable use of biological resources, and on the equitable sharing of benefits. (SUNS4678)

Cecilia Oh is a researcher with TWN

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