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UN Biodiversity Treaty members deal with biosafety and IPRs

Apart from an agreement to start work on a biosafety protocol, the second meeting in Jakarta of the Parties to the Convention on Biological Diversity (CBD) agreed to study the impact of intellectual property rights (IPRs) on the objectives of the Convention.

By Chee Yoke Ling

AFTER more than two years of debate over the need for a legally binding agreement to regulate the safety, health and ecological aspects of biotechnology (especially genetic engineering), the second Conference of the Parties (COP2) meeting in Jakarta finally decided to establish a negotiating working group that is open to all governments'as a matter of urgency', to develop a protocol on biosafety in the field of the safe transfer, handling and use of genetically modified organisms (GMOs).

The protocol will specially focus on the transboundary movement of such organisms. According to the decision, the Group should endeavour to complete its work in 1998.

The decision represents a major victory for the South. The G77 and China had been urging the world community to start work on such a protocol ever since the adoption of the Convention on Biological Diversity (CBD). Industrialised countries, primarily the USA and some leading players in the European Union and Japan, had been thwarting all attempts by questioning the need for a protocol.

More than 150 countries attended the second meeting of the COP meeting to the CBD in Jakarta from 6 to 17 November 1995. Of these, 131 were Contracting Parties. The United States, even though it has not ratified the agreement, was an influential, at times even aggressive, observer at the meeting.

Possible clashes between TRIPs and the CBD

Based on statements made by India and Norway, as well as a strong written statement by the G77 and China, the Secretariat had prepared a draft text for the Jakarta meeting that called for an analysis of the relationship between the CBD and the TRIPs (i.e. the Trade-Related Intellectual Property Rights under the GATT) agreement, 'with a view to assisting the COP in preparing a possible input to negotiations' at the WTO Committee on Trade and Environment culminating in a Ministerial Conference in Singapore in December 1996 'which will consider whether any modifications or agreed interpretations of the provisions of the multilateral trading system are required in order to adapt it to the requirements relating to environment and development'. Two areas singled out for consideration was the potential impact of the TRIPs agreement on the conservation and sustainable use of biodiversity, and the consistency between the CBD's objectives and Article 27(3) of the TRIPs agreement.

During the discussion in the first week of the conference, the G77 and China, supported by Norway, called on the conference to assert the primacy of the Convention over the TRIPs agreement, emphasising that Article 16(5) of the Convention obliges Parties to ensure that intellectual property rights (IPRs) support and do not run counter to the objectives of the Convention. These objectives are biodiversity conservation, the sustainable use of components of biodiversity, and the fair and equitable sharing of the benefits derived from such use.

The Secretariat's paper was criticised by India for presenting a flawed interpretation which reduced the IPRs discussion to their relationship with biotechnology. The delegate said that COP1 had recognised that IPR issues relate to all the technologies (not just biotechnology) based on the use of genetic resources. Further, benefit sharing with the local and indigenous communities which contribute to conservation and sustainable use of biodiversity through traditional knowledge, and with countries of origin of genetic resources, is a recurrent theme and one of the basic objectives of the CBD.

India stressed that even in its discussion of IPRs and technology transfer, the Secretariat paper concluded that lack of technological capacity, rather than IPRs, was the main obstacle for developing countries. However, the basis for such a conclusion was not set out.

Norway was the only Northern country to agree that IPRs should not undermine the objectives of the CBD, and that discussions should be based on the CBD itself, especially Article 16. 'IPR issues are discussed also in other fora, but we have a specific obligation to contribute to the ongoing debate as it relates to the basic goals of this Convention,' the Norwegian delegation said. The delegate emphasised that the COP should contribute to the ongoing WTO discussions on how IPR systems can be implemented in harmony with the CBD's objectives - one aspect should be how Article 8(j) of the CBD on the rights of indigenous and local communities are to be operationalised in the light of IPRs. It was pointed out that the ongoing revision of the International Undertaking on Plant Genetic Resources for Food and Agriculture at the FAO, dealing with the ex situ germplasm collections (made before the entry into force of the CBD) and farmers' rights, also deals with IPR-related issues. The Norwegian delegate also singled out the need to clarify the content of the sui generis systems that are to be developed according to the TRIPs agreement, as an alternative to existing patent systems. He called for the COP to give inputs to the WTO to ensure that implementation of TRIPs is fully consistent with, and does not undermine the CBD.

The EU reaffirmed its position that technology transfer and access to biotechnology should be carried out in compliance with the protection of intellectual property, in particular multilateral and bilateral agreements signed or negotiated by the CBD's Contracting Parties. It maintained that IPRs may contribute substantially to technology transfer, and welcomed a study on the effect of the TRIPs agreement on the CBD - Article 27(3)(b) was highlighted for its provision of 'possible exemptions and alternatives for Member States with regard to patentability'. The EU's primary concern, however, was to ensure that access to genetic resources would be further guaranteed.

Gene piracy

A representative of Third World Network called for action by the COP to stop the piracy of genetic resources and traditional knowledge, especially from the South, and to deal with IPRs as a threat to the objectives of the CBD. TWN criticised the Secretariat paper for stating as a given fact that the economic value of genetic resources is through the advance of commercial biotechnology supported by strong IPR systems.

The paper asserted that to gain biotechnology, developing countries would have to pay royalties and ensure that IPR regimes are in place, but since they could not afford to pay for the technology, and lack of technological capacity was a bigger obstacle, it was best for them to focus on training and research development. The paper thus failed to assess how IPRs could block the transfer of technology and usurp the cumulative creativity of local and indigenous communities. It ignored the role of technologies other than biotechnology in achieving the objectives of the CBD, ignored Article 16(2) of the CBD that provides for developing countries to access technology on concessional and preferential terms, reduced benefit sharing to biotechnology training and completely marginalised the central role of communities in the conservation and sustainable use of biodiversity. The US reaffirmed its position that an effective patent system will promote growth in all areas of technology, and turned out in full force at the session at which the draft decision on IPRs was being negotiated. From the beginning, the US rejected the declared wishes of a majority of countries (the G77 and China, and Norway), claiming that there was no expertise on IPRs in the CBD Secretariat, and that the TRIPs agreement should not be singled out. The Union for Protection of New Plant Varieties (UPOV) and the International Plant Protection Convention, both of which have few signatories and even then mostly from the North, were cited as additional instruments for consideration.

The delegate from Argentina, who was from Geneva, stated that trade negotiators had little or no knowledge of biodiversity and that it was important for the COP to give inputs to the WTO Committee on Trade and Environment, and suggested that possible changes may consequently be made within the TRIPs agreement. When the US insisted that a first step would be for the two Secretariats to 'inform and mutually educate each other' on the objectives of the respective agreements, Argentina surprisingly proposed language that failed to capture the concerns of many Southern delegations, calling for the identification of 'synergies' between the two agreements.

Observers said that it was unfortunate that the G77 and China did not have fuller representation, resulting in the acceptance of a drastically watered-down decision that did not even call for a study, but just a paper identifying synergies and relationship between the objectives of the two agreements. However, a number of Southern delegates said that G77 members could still prepare inputs for COP3.

The upshot was that the COP requested the CBD Secretariat to liaise with the Secretariat of the World Trade Organisation to prepare a paper that 'identifies the synergies and relationship between the objectives of the CBD and the TRIPs agreement'. This paper 'could be the basis for consideration by the third meeting of the COP in preparing a possible input for negotiations that are taking place in the Committee on Trade and Environment of the WTO'. The COP3 will be held in November 1996. This vague and qualified decision was the result of the unpreparedness of the South against the vehement drive by the North, led by the US, to safeguard IPRs. This was markedly seen when simultaneous working groups were in session at the conference. Given the small size of Southern delegations (many of which were one-person delegations), there were only three or four Southern representatives at any one time compared to 18-20 Northerners.

The US alone had at least four persons, including patent lawyers. As one Southern delegate said, 'We in G77 were like a wooden spear against their nuclear weapon.' While the US persisted that the Secretariat of the CBD lacked the expertise to deal with IPRs, delegations from the UK, New Zealand, Australia and the EU kept insisting that any study of IPRs may not be a priority because of budget constraints and an over-burdened Secretariat.

The COP2 did however agree that the Secretariat should undertake a preliminary study to analyse the impact of IPRs systems (not confined to TRIPs) on the conservation and sustainable use of biodiversity and the equitable sharing of benefits deriving from its use in order to gain a better understanding of the implications of Article 16(5). This Article calls for IPRs to support, and not run counter to, the objectives of the CBD. The study may focus on the relationship between IPRs and the preservation and maintenance of traditional knowledge and practices of indigenous and local communities, and the possible role of IPRs in encouraging the equitable sharing of benefits arising from the use of such knowledge and practices.

India proposed that patent applications should contain the source of origin of genetic material and the traditional knowledge used (Prior Informed Consent and Mutually Agreed Terms should be included in such cases). Even though this proposal was not supported by the COP, India requested that its view be officially recorded.

The study will also include case studies that address the role of IPRs in the technology transfer process, in particular the transfer of biotech-nology.

The strongest statement on these issues during the Ministerial Segment of COP2 came from Papua New Guinea and the Solomon Islands. In a joint statement, they strongly urged COP3 to review the IPRs paradigm and GATT/TRIPs, and called for the establishment of a legal framework for community intellectual rights.

'No' to patenting of human genetic material

The patenting of human genetic material drew considerable attention during the discussion on IPRs. The Secretariat paper on access to genetic resources raised the possibility of dealing with human genetic 'resources' under the CBD. The Solomon Islands, Papua New Guinea, Malaysia, India and Sweden voiced strong objections to patenting of human genetic material. Among the objections were ethical and religious concerns, the violation of the sanctity and dignity of human life. The CBD created a framework for state sovereignty over biological resources, access to such resources and the sharing of benefits from the use of such resources. According to these delegations, to include human genetic material in this framework would amount to the ultimate commoditisation of life.

When Papua New Guinea, the Solomon Islands and Western Samoa had tried to include a strong statement against patenting of human materials in the South Pacific Forum's Ministerial statement, they had been blocked by Australia and New Zealand, both of which are also members of the Forum.

At the ministerial segment, Fiji yielded its time so that PNG and the Solomon Islands could make a separate statement. They reiterated their outrage at the recent patents and patent claims over human cell lines of their people and sought the assistance of the COP to request, through the UN Secretary General, an advisory opinion from the International Court of Justice on whether or not human genetic material is patentable and if indeed it is a fitting subject matter for the Biodiversity Convention. The European Parliament rejected the patenting of life forms a few months ago, while the broadest religious coalition in US history, representing more than 80 religious faiths and denominations, has publicly condemned the patenting of genetically engineered animals, human genes, cells and organs.

However, the US delegate at the COP2 took the position that development of new and non-obvious material from the human body 'enhances the human condition'. Observers said that this was not surprising since the US is the only country in the world that legally allows the patenting of human genetic material, and faces commercial pressure from US corporations seeking global monopolies.

The final decision of the COP2 reaffirmed that human genetic resources are not included within the framework of the CBD. Some delegations noted however, that action will have to be taken since patenting of human genetic material is taking place. Sweden had proposed that the ongoing work of UNESCO's Bio-Ethics Committee be a focus for governments. Other delegations said that this was a matter that also needed to be raised at the WTO.

GEF remains interim financial structure for CBD

Pressure from the OECD countries to designate the Global Environmental Facility as the permanent institutional structure to operate the financial mechanism of the CBD continued, with warnings that potential donors needed certainty in light of replenishment negotiations which will begin in late 1996.

The G77 and China maintained their position to retain the GEF on a temporary basis, stating that the GEF had yet to prove that it was operating according to the guidance of the COP. Less than two weeks before the Jakarta meeting, the GEF Council had adopted a new strategy on its biodiversity financing, in line with the priorities set out by COP1. The G77 and China argued that more time was needed to effectively assess the performance of the GEF. They also expressed dissatisfaction with the GEF's biodiversity activities so far.

After long-drawn debates, it was agreed that the GEF would continue to operate as the CBD's financial structure on an interim basis.

Many Southern delegations were also dissatisfied with the Secretariat's paper on new and innovative financial resources, which focused on national efforts and private sector mobilisation. This, they said, was a further retreat from the obligations of Northern countries to provide new and additional financial resources, while putting more and more of the burden on the South.

Addressing ecosystems

A working group on Marine and Coastal and Terrestrial issues was set up under the chairmanship of India's Ms A K Ahuja for the duration of the COP2.

Extensive discussions resulted in further elaboration of the work programme for marine and coastal biodiversity. These were based on recommendations made by the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) of the COP that had met in Paris a few months before.

Delegations of Brazil, India, Turkey and China were concerned that any work undertaken by the COP would prejudice the long years of work under the UN Convention on the Law of the Sea (UNCLOS). Brazil, in particular, expressed uneasiness that the Jakarta Ministerial Statement's referred to a 'new global consensus on the importance of marine and coastal biological diversity' reached in Jakarta. It was disturbing that after 10 years of UNCLOS negotiations and many years of work on marine pollution from land-based activities (that culminated in the Washington Declaration and Programme of Action recently), just four sessions of the COP2 and one meeting of the SBSTTA could give rise to a new global consensus.

After extensive negotiations that lasted well into the night, it was agreed that the CBD's Executive Secretary would solicit input from all Parties and, as appropriate, from other countries and relevant bodies and establish a roster of experts based on country input (the roster will draw upon expertise from scientific, technical, technological, social, management, economic, policy, legal, and indigenous and traditional knowledge). Meetings of experts will be convened to support the Secretariat in its work in this area, and each meeting will comprise of no more than 15 experts with due regard to geographical representation and to the special conditions of least developed countries and small island developing States. Indonesia will host the first meeting of Experts on Marine and Coastal Biological Diversity.

With regards to forests and biodiversity, a statement was adopted for transmission to the second session of the International Panel on Forests set up by the Commission on Sustainable Development, calling for the Panel to acknowledge biodiversity concerns in sectoral programmes, plans and policies, and to consider economic, environmental and non-consumptive values of forests. COP2 also called on the CBD Executive Secretary to provide information on indigenous and local communities and forests. Continuing input to the Panel's third meeting was also provided.

Support for FAO work

The COP2 reaffirmed support for the FAO's work in revising the International Undertaking on Plant Genetic Resources for Food and Agriculture, to harmonise it with the CBD. Discussions were also held on the planning of the Fourth International Technical Conference on the Conservation and Sustainable Utilisation of PGR for Food and Agriculture. A statement from the COP2 asserted the sovereign right of States over their natural resources, and called for the Conference to promote consistency with the CBD.

Secretariat in Montreal

Montreal was voted to be the host of the permanent Secretariat of the Convention, even though it was a late-comer to the list of contenders that included Nairobi, Geneva and Madrid.

The third meeting of the COP will be held in Buenos Aires, Argentina to be held from 4 -15 November 1996.

Chee Yoke Ling, a former university law lecturer, is an Environment representative of Third World Network.


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