UN biodiversity meet fails to address key outstanding issues

Hopes that the Fifth Conference of Parties to the Convention on Biological Diversity (CBD), which was convened in Nairobi in May, would finally get to grips with the important outstanding issues such as the conflict between the CBD and the WTO TRIPS Agreement have proved futile. Nevertheless, a working group will be established to further address issues relating to access to genetic resources and the equitable sharing of benefits. Cecilia Oh and Lim Li Lin report.

THE Fifth Conference of Parties (COP V) to the Convention on Biological Diversity (CBD), which was held from 15 - 26 May at the United Nations Environment Programme’s headquarters in Nairobi, 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.

On the agenda for this COP were issues relating to biological diversity, including biosafety, and access and benefit sharing and sustainable use of biological resources. Many delegates and observers had hoped that this meeting would go some way towards resolving some very contentious issues, including the patenting of biological materials, the conflict between the provisions of the CBD and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the World Trade Organisation (WTO), and the issue of a ban on Genetic Use Restriction Technologies (GURTs), more commonly known as Terminator and Traitor technologies. However, many were left disappointed with the outcome of the Conference, which did not take a strong stand on many of the issues.

However, the Working Group on access and benefit sharing 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 COP V to continue further work on outstanding issues from its first meeting. 

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

One outstanding issue that did not receive sufficient discussion during COP V 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 COP V 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 in October last year, had failed to come to any conclusions about the role of IPRs in the implementation of access and benefit-sharing arrangements. Closely related to this issue is the question of the relationship between the TRIPS Agreement and the CBD.

During the High-Level Segment of COP V, 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.

Call to harmonise

‘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 COP V 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 CBD.

The Malaysian Minister’s call was supported by the African Group of countries at COP V. The African Group, in a declaration issued on the final day of the Conference, called on all Parties, governments and international organisations to oppose the patenting of life forms.

In a communique released at the same time, the African Group further added 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 the TRIPS Agreement, 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 those of the CBD. At the national level, the African Group urged countries to examine carefully existing and proposed laws on IPRs, especially those aimed at implementing the TRIPS Agreement, so as to maximise room for national development, as well as for protection of Community and Farmers’ Rights.

The decision of COP V on the relationship of IPRs/TRIPS Agreement with the CBD adopts the recommendation of the Intersessional Meeting of June last year. That decision  invites 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.

The failure of COP V to ban Terminator technology also disappointed many. Terminator technology (which utilises genetic engineering biotechnology) renders second generation seed sterile, thus preventing farmers from saving and replanting their seed, and poses a serious threat to food security and biodiversity worldwide. COP V merely approved a proposal coming from its scientific advisory body, the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA), that recommends that GURTs should not be approved for field testing or commercialisation until more scientific data can be gathered on their potential impacts. Parties may however choose to declare a domestic moratorium on these technologies.

Many developing countries and civil society organisations had been supporting a ban on these technologies. The communique of the African Group called on all Parties, governments and international organisations to ‘immediately ban the Terminator Technology from respective national territories and thus from the whole of Africa, as intolerable politically, economically and ethically and in terms of safety of plant life, and in the future be constantly on the lookout for unacceptable products of biotechnology’.

A representative from RAFI (Rural Advancement Foundation International, an international civil society organisation based in Canada), the leading critic on Terminator and Traitor technologies, commented that ‘the final decision...calls for further studies...but there is no rationale for this recommendation since no ‘further studies’ will make the suicide seeds less suicidal’.

‘The real danger is that Terminator seeds will become a commercial reality before then.’


COP V also saw the historical signing of the Cartagena Protocol on Biosafety which was concluded in January this year. The Biosafety Protocol is the first internationally binding legal instrument that regulates the handling, use and transboundary movement of genetically modified organisms (GMOs) (known as living modified organisms in the Protocol). The Protocol is significant for establishing the basis of international law to regulate the trade in GMOs, which it recognises as inherently different and carrying special risks and hazards.

The Biosafety Protocol was officially opened for signature during the High-Level Segment of COP V. At the end of the special signing ceremony, a total of 68 countries had signed the Protocol. Nearly two-thirds of the signatories were developing countries.

During the course of the Protocol negotiations, most of the developing countries began to negotiate as a bloc known as the Like-Minded Group. The LMG was resolute in its aim of achieving a strong Protocol that would include, inter alia, socio-economic considerations, and liability and redress, and include all GMOs under its scope and procedures for international trade. Foremost among their concerns were also worries that developing countries would become the dumping ground for GMOs rejected by consumers in the North, and the serious threats to the South’s biological diversity.

However, a small grouping of six countries known as the Miami Group, led by the US, had attempted to water down the Protocol so as to ensure that it did not disrupt their exports of GMOs. During the protracted negotiations, more and more scientific evidence of risks and hazards of GMOs on human health, the environment and biological diversity surfaced. Public pressure was instrumental in tipping the balance in favour of securing an international agreement that goes some way towards protecting health and the environment.

The Biosafety Protocol is now open for signature at the UN headquarters in New York from 5 June 2000 to 4 June 2001. The Protocol will come into force 90 days after 50 countries have submitted their ratification papers.

Many Environment Ministers speaking during the High-Level Segment called for the speedy ratification and implementation of the Protocol. The High-Level Segment was preceded by a Ministerial Roundtable on capacity-building in developing countries to facilitate the implementation of the Biosafety Protocol, the day before. Addressing the 70-odd Ministers and Ambassadors at the opening of the Roundtable session, a representative from the Third World Network stressed on the need for developing countries to build their capacity on three key fronts: national biosafety laws, scientific capacity, and monitoring and enforcement capabilities.

During the course of COP V, many government delegates and observers were filled with a sense of deja vu when the polarised interests of the same groupings of different countries led to disagreement over the scope of work of the Intergovernmental Committee of the Cartagena Protocol (the body that will undertake preparations for the first meeting of the Parties to the Protocol).

The countries of the Miami Group wanted a narrow workplan that would only address information-sharing and the biosafety clearing house mechanism, and capacity-building, while most countries supported the full proposed workplan, which included compliance, liability and redress, and handling, transport, packaging and identification. In the end, the proposed workplan was adopted with minor changes. Also a hot issue of debate was the involvement of the private sector in capacity-building. The workplan, however, retains this element.                                                           

Cecilia Oh and Lim Li Lin are researchers at Third World Network.