TWN Info Service on Biodiversity and Traditional Knowledge (Dec22/05)
23 December 2022
Third World Network

CBD COP15: South successfully defends benefit sharing objective, equity in One Health

Montreal, 23 December (Nithin Ramakrishnan) – Developing countries have successfully pushed back several developed country attempts to undermine the benefit sharing objective of the Convention on Biological Diversity (CBD).

The CBD’s fifteenth Conference of the Parties (COP15) met in Montreal from 7-19 December, in conjunction with the meetings of Parties of its Protocols – the Cartagena Protocol on Biosafety (COPMOP 10), and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (COPMOP 4).

At COP15, attempts by developed countries (in particular Japan, Republic of Korea and Switzerland, with occasional support from some European Union members, the UK and Australia) were systematic and coordinated. Firstly, they tried to delay and dilute the solution to the challenges created by the use of digital sequence information (DSI) in the sharing of benefits. Secondly, they tried to create exceptions to the Nagoya Protocol by opening up possibilities for States and other international organisations to develop specialized international instruments under the Protocol. Thirdly, attempts were made to expand access to genetic resources using the “One Health” agenda as a pretext.

However, all these attempts were successfully pushed back by developing country Parties, safeguarding the fair and equitable benefit sharing objective of the Convention.

COP15 agreed to establish a global multilateral mechanism to share benefits arising from the use of DSI, and also postponed the decision on the consideration of indicative criteria for specialized instruments. Furthermore, Parties recognized and called for the inclusion of equity, solidarity, access to tools and technologies, as well as development of access and benefit sharing instruments in the planning and implementation of the One Health approach.

Fair and equitable benefit sharing for use of DSI without compromising sovereign rights

One of the most important breakthroughs of COP15 is an explicit agreement to share the benefits arising from the use of DSI on genetic resources. The relevant Decision states, “Also agrees that the benefits from the use of digital sequence information on genetic resources should be shared fairly and equitably”.

Parties also decided “to establish, as part of the post-2020 global biodiversity framework, a multilateral mechanism for benefit-sharing from the use of digital sequence information on genetic resources, including a global fund.”

There is also clear recognition that any monetary and non-monetary benefits should primarily be used to support conservation and sustainable use of biodiversity, and benefit indigenous peoples and local communities.

A fair, transparent, inclusive, participatory and time-bound process will work out the details and functioning of this mechanism which will be finalised at COP16, to be held in Turkiye in 2024. An ad hoc open-ended working group will undertake this work and make recommendations to COP16.

Notably, the approach set out in the decision is explicitly agreed upon without prejudice to national access and benefit sharing measures. Countries like Brazil and India have national legislation which already cover the use of DSI and they are looking at possibilities of increasing the efficiency of such national mechanisms.

The multilateral mechanism therefore will be in addition to such national mechanisms. These countries want the national and multilateral mechanisms to be mutually supportive such that gaps in the access and benefit sharing national mechanisms will be filled, ensuring the flow of benefits from scientific progress and its application to the public.

It is interesting to note that the certain scientists’ groups have been funded to lobby and capture the COP15 process with a view to support their industry views. Such groups were very vocal and active throughout the session as well as in the run up to COP15. They have continuously called for decoupling the access and benefit sharing aspects. They have expressed reservations against any sort of requirements such as prior informed consent and agreements between the providers and users of genetic resources at the time of accessing genetic resources.

Although such moves will compromise the legal certainty of fair and equitable benefit sharing, these scientists’ groups generated narratives that any form of the abovementioned requirements will hinder research and innovation. Nevertheless, certain delegations, including some from developed countries speaking to Third World Network, expressed reservations on the narrow focus of the scientists-industry coalition. This led to the adoption of crucial exemptions for the national arrangements within the COP15 decision.

Details are still to be worked out, with crucial issues contained in an Annex, such as triggering points for benefit sharing, contribution to the fund, technology transfer, relationship between national systems and multilateral mechanisms, principles relating to data storage or sharing issues, etc., These “issues for further consideration” will be taken up by the ad hoc open-ended working group.

A developing country reportedly called on developed countries to learn from its national mechanism, and offered capacity building partnerships to developed country governments on how to regulate private sector activities on genetic research and product development, in order to effectively comply with benefit sharing obligations. Another developing country which also has a strong national mechanism called for more fairness, and for databases to facilitate benefit sharing.

Meanwhile, Brazil, speaking to Third World Network, highlighted its cooperation with Latin American countries to support the establishment of national legislation and systems on access and benefit sharing (ABS), and expressed its willingness to continue this cooperation, including beyond Latin America, to strengthen capacities and ABS systems in support of the future DSI mechanisms.

No decision on the criteria for specialized international ABS instruments

COPMOP4 of the Nagoya Protocol deferred its decision on the indicative criteria on what constitutes a specialized international ABS instrument, to COPMOP5 in 2024. Article 4 of the Nagoya Protocol allows its Parties to develop other international agreements for access and benefit-sharing including specialized international ABS instruments (SII). However, such instruments should be mutually supportive of, and should not run counter to, the objectives of the Convention and the Protocol.

As a rule, the Nagoya Protocol is generally applicable as it provides for the basic tenets of sharing of genetic resources and benefits. Article 4, Paragraph 4 of the Protocol says that if an international instrument is understood as a SII, then the Protocol stops applying to the Party or Parties to the specialized instrument in respect of the specific genetic resource covered by, and for the purpose of, the specialized instrument.

Developed countries, desirous of declaring SIIs themselves, including certain international private agreements, sought an early resolution on the indicative criteria, which were originally developed by academics. It must be noted that Parties to the Nagoya Protocol have had very limited discussions on this subject matter.

During the in-person third meeting of the Subsidiary Body on Implementation (SBI3), held in Geneva in March 2022, certain developing countries, especially from Africa, proposed to have a process within the COPMOP for deciding which instruments should be considered as a specialized instrument under the Nagoya Protocol.

They also sought to modify the indicative criteria such that only international instruments having the same status as the Nagoya Protocol, an intergovernmental agreement adopted at the governing body of an international convention, would be considered as a SII. However, the developed countries reserved against such interventions by placing the suggestions made by the African Group in square brackets, indicating lack of consensus.

At COPMOP4, developed countries, led by the U.K., Japan, Switzerland, Norway and the European Union, opposed the call for setting up a process for the Parties to determine the status of international instruments as SIIs. They also wanted to summarily adopt the rest of the decision including the loose indicative criteria.

Namibia and Brazil however resisted this move vehemently. Namibia indicated that only instruments having the same status as the Nagoya Protocol can be considered as SIIs.

A Friends of the Chair group took up the matter. The discussions reportedly soon reached a deadlock on the issue relating to the process for the determination of SII status of international instruments. This deadlock suspended any discussion on the substantive aspects of the indicative criteria.

Developed countries argued that such a process would mean a hierarchical superior position of the Nagoya Protocol in comparison with other international instruments, and that this is expressly prohibited within Article 4. Developing countries, on the other hand, argued that allowing other international organisations or states, including non-Parties to the Nagoya Protocol, to declare instruments as SIIs is not acceptable.

Further, it is understood that developing countries such as Mexico, Brazil, Indonesia, Namibia, Malawi, Argentina and India requested COPMOP4 to defer the decision to the next COPMOP, since the delegations were busy negotiating the post-2020 Global Biodiversity Framework. This was accepted and the decision now calls for review of the subject matter at COPMOP5.

Shifting One Health approach into an equitable holistic approach

While the above moves of the developed countries sought to undermine benefit sharing obligations, in COP15, they also made other moves to expand access to genetic resources, in particular using the pretext of One Health approach.

The One Health concept encourages collaborative partnerships between plant, animal, human and ecosystem health sectors to promote optimal health for the whole planet. It has received renewed attention following the COVID-19 pandemic.

However, instead of promoting practical collaborations between the different health sectors, the current proponents of the One Health approach are focused on promoting integrated surveillance systems and regular sharing of DSI of biological materials across plant, animal and human species. It must be noted that there is no binding international law obligating countries to share genetic resources or DSI, except for selected genetic resources.

The UK first sought to establish a One Health target within the post-2020 GBF, and developing countries opposed this, highlighting that there is no international consensus on the approach and its working principles. The only available guidance are the outcomes of bodies such as the One Health High Level Expert Panel (OHHLEP), and the Quadripartite Partnerships between FAO, WHO, WOAH (World Organisation for Animal Health) and UNEP, largely working through secretariat-led collaborations.

Divergent views on the proposed target, along North-South lines and focused on ABS issues, eventually led the UK to withdraw the proposal, As a compromise, it called for One Health language to be included in a section of the GBF that sets out considerations for its implementation.

Following several rounds of informal consultations, the UK presented a proposal that was eventually modified by Bolivia to bring in equity considerations. Bolivia had earlier spearheaded a similar transformative change in the One Health approach under the “Biodiversity and Health” agenda item (see below).

The final text reads:

“The framework acknowledges the interlinkages between biodiversity and health and the three objectives of the Convention. The framework is to be implemented with consideration of the One Health Approach, among other holistic approaches that are based on science, mobilize multiple sectors, disciplines and communities to work together and aim to sustainably balance and optimize, the health of people, animals, plants and ecosystems, recognizing the need for equitable access to tools and technologies including medicines, vaccines and other health products related to biodiversity, while highlighting the urgent need to reduce pressures on biodiversity and decrease environmental degradation to reduce risks to health, and, as appropriate, develop practical access and benefit-sharing arrangements.” [text in bold indicates the change brought in by Bolivia].

Similarly, in the decision on biodiversity and health, several changes were incorporated due to the interventions of developing countries calling on the One Health approach and relevant actors working in the field to become more equitable.

Most prominently, the decision invites the Quadripartite for One Health, the OHHLEP, and other relevant expert groups and initiatives “to take into account in their work the linkages between health and biodiversity, the need for the One Health approach, among other holistic approaches, pursuant to decisions XIII/6 and 14/4, recognizing social determinants of health, socioeconomic inequities between developing and developed countries, particularly health inequalities, as well as equity and solidarity”.

This is a strong call on the quadripartite and OHHLEP which have so far not adequately addressed the concerns of equity and solidarity and socio-economic circumstances of developing countries in their work.

Similarly, the decision also requests a revision of the draft global action plan on biodiversity and health, which was presented during the 24th meeting of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA24). This plan was not referred to COP15 by SBSTTA24, owing to the criticisms from developing countries on its neglect of equity and benefit sharing principles.  

The COP15 decision now calls on the Executive Secretary to produce a revised draft, “recognizing the issues of equity, including through the fair and equitable sharing of benefits arising from the utilisation of genetic resources, fair and equitable sharing of benefits arising from the use of DSI on genetic resources and  and traditional knowledge associated with genetic resources”.

The preambular paragraphs also provide important references to the One Health approach and equity. It recognizes “the need for the equitable access to tools and technologies including medicines, vaccines and other health products required to implement the One Health approach and other holistic approaches”.

All in all, the Montreal biodiversity meetings successfully upheld the CBD’s benefit sharing objective.+