TWN Info Service on Climate Change (Nov10/02)
9 November 2010
Third World Network

Mixed reactions on new access and benefit sharing treaty
(An earlier version of this article was published in SUNS #7032, 3 November 2010.)

Beijing, 2 November (Chee Yoke Ling) – The palpable relief of adopting a number of major decisions at the recently concluded meeting of Parties to the Convention on Biological Diversity (CBD) was accompanied by lingering doubts over the new treaty on access and benefit sharing.

After almost five years of work launched officially in 2004 and a marathon negotiation session lasting 15 days and most nights prior to (13-15 October) and during the 10^th meeting of the CBD Conference of Parties (18 to 29 October) in Nagoya, Japan the “Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization” was adopted.

Most government delegates said that the Protocol is imperfect but that they could “live with it”. Bolivia, Cuba, Ecuador and Venezuela representing the views of the regional Bolivarian Alternative for the Americas (ALBA) put on record that they could not accept a Protocol that failed to meet the minimum requirements of preventing biopiracy. However they did not stand in the way of all the other Parties that agreed to adopt the Protocol.

The Nagoya meeting had three major inter-linked components: the Nagoya Protocol on Access and Benefit Sharing (ABS); the revised and updated Strategic Plan to guide international and national efforts to meet the three CBD objectives including a revised biodiversity target for the period 2011-2020; and the implementation plan for the Strategy for Resource Mobilization in support of the achievement of the CBD objectives adopted by COP 9 in Bonn, Germany in 2008. (Please see SUNS # 7031 of 2 November 2010.)

(The three CBD objectives are: conservation of biodiversity, sustainable use of the components of biodiversity, and the fair and equitable sharing of benefits arising from the utilization of such components.)

Delegates at the Nagoya COP 10 were shadowed by a possible “Copenhagen” collapse – the 2009 COP of the UN Framework Convention on Climate Change had ended in disarray and disillusionment. There was also growing concern that if Nagoya failed to deliver a positive outcome the multilateral system as a whole would suffer another blow.

The President of the COP 10, the Minister of the Environment of Japan, Ryu Matsumoto was visibly relieved when his gavel came down to adopt the 3 decisions after more than two hours of post-midnight plenary discussion.

COP 10 adopted the Nagoya Protocol on ABS and established an Open-ended Intergovernmental Committee to prepare for the first meeting of the Parties to the Protocol. The Committee will meet on 6-10 June 2011 and 23-27 April 2012. The Protocol will be open for signature by Governments at the UN Headquarters in New York from 2 February 2011 to 1 February 2012. Fifty ratifications are needed for the Protocol to enter into force.

Fernando Casas (Colombia) and Timothy Hodges (Canada), the Co-Chairs of the Open-ended Working Group on ABS that was mandated by the COP 7 in 2004 to negotiate the treaty, were nominated by Argentina and supported by the COP to also co-chair the new Committee. Argentina will be chair of the Group of 77 of developing countries in 2011.

However, at the closing plenary past midnight into 30 October, Bolivia, Cuba, Ecuador and Venezuela expressed their deep disappointment over the ABS Protocol and put on record their rejection of the document even though they decided not to block its adoption.

Venezuela on behalf of ALBA said that eight years ago (when Heads of States decided on an international regime on ABS at the Johannesburg Summit) there were expectations of an ABS document that would stop the “scourge of biopiracy”. However, it said that the negotiated document has suffered many changes and does not contain what is needed.

Bolivia’s Aldo Claure Banegas said that the Protocol does not fully reflect the views of all Parties and it could not accept the document. It added that in implementing the CBD Parties should take into account the intrinsic value of biodiversity, and the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components, as this stipulated in the preamble to the CBD. Throughout the two weeks Bolivia consistently opposed what it saw as the commodification of nature in the various draft decisions under negotiation.

(Among the decisions that were finally adopted, one relates to “Engagement with Business” and there were several side events with corporations involved, including a few coorganised with the CBD secretariat and the Global Environment Facility.)

Cuba said that the years of work to help poor countries have been diminished, and though it also did not agree with the document it did not stand in the way of consensus.

Brazil’s Luiz Machado said that it did not want to stand in the way since it was a “delicately balanced” document. Brazil is also the current chair of the 17-member Group of Like Minded Megadiverse Countries (LMMC) that has been a key player throughout the years of negotiations, being the grouping that strongly promoted the interests of countries of origin of biological resources.

Namibia, on behalf of the Africa Group said that after all this time the Protocol is not the best of documents “but we can live with it and more importantly there is Article 25 on review (of the Protocol). When it is implemented we can see how it is – what we want is the best for Africa”. It also wanted its statement to go into the record of the conference.

The chief negotiator of Malaysia, Gurdial Singh Nijar, said on behalf of the Like Minded Asia Pacific Countries said, “Our region could never have agreed to a Protocol that is empty” and “With this treaty, we hope to rid the word 'biopiracy' from the vocabulary of the world.”

MARATHON NEGOTIATIONS AND CONTENTIOUS ISSUES

Prior to the COP 10 meeting, the Interregional Negotiating Committee (ING) convened for 3 days on 13-15 October that extended into the morning of the fourth day. This Committee was set up by the Open-ended Working Group on ABS early this year to enter into full negotiations. The mandate of the Open-ended Working Group and with it the ING ended on 16 October.

The opening COP 10 plenary on 18 October proceeded to establish the Informal Consultative Group (ICG) that was to complete its work to finalise the ABS protocol by 22 October and this was further extended twice due to the wide divergence between developing and developed countries on key issues of the protocol.

On 25 October the Co-Chairs reported to the COP 10 plenary on progress made and the outstanding unresolved issues. Yet another deadline of 28 October was given but negotiations reached a deadlock.

At this point the COP 10 Presidency convened a “facilitating group”. The European Union, Namibia (for the Africa Group), Brazil (recognized for its role as the LMMC chair and a key regional spokesperson) and Norway (representing a bridging viewpoint) were invited to be part of this facilitating group. The Like Minded Asia-Pacific Countries were noticeably unrepresented even though they were among the most active players throughout the negotiations.

On 28 October, the second last day of the COP 10, negotiations went off the public track, with many negotiators themselves at a loss as to what happening. Frustration and speculation abound in the corridors. Compromise text was floated on the unresolved issues of scope and compliance but this was again not successful.

On the last day, 29 October, the COP 10 Presidency took over the negotiations, taking them to a ministerial level. However, the chief negotiators of the countries concerned were in attendance, according to those involved.

The unresolved issues were essentially about the scope of the Protocol and the strength and effectiveness of the compliance mechanism and a “balance” was finally struck by the COP 10 Presidency (Japan) with the guidance of Co-Chairs Casas and Hodges. The President’s draft Protocol was distributed on 29 October morning and regional groups met with the Japanese Minister Ryu Matsumoto who basically persuaded all Parties to accept his text.

It should be noted that by this time, a considerable part of the Protocol had already been agreed to by Parties in the intergovernmental setting, and the compromise presented by the COP 10 President worked with the language that were in brackets. The new addition was the multilateral fund proposed by the Africa Group. 

SCOPE

On scope, there were several aspects.

First, the definition of the terms “utilization of genetic resources” (the CBD requires benefit sharing for the commercial and other utilization of genetic resources) and “derivatives” of genetic resources took up considerable time over the past year. Developed countries wanted a narrow definition and developing countries the opposite. The final definition is open to interpretation. 

According to Hartmut Meyer, a scientist who participated in the ABS negotiations for the past 5 years and was also a participant at the experts workshop convened by the CBD secretariat on concepts, terms and definitions of the Protocol in 2009, it would seem that the access to purified extracts that do not contain DNA any longer is not under the Protocol.

However, Meyer said that access to extracts that contain DNA and to any other biological material for research and development purposes using all molecules of the material are under the Protocol. All these extracts are important for the Protocol because at least 90% of all known biopiracy cases involve these substances. 

Secondly, China, India, Malaysia and Nepal especially argued strongly for benefit sharing from the use of traditional knowledge that is publicly available and not identifiable with any specific indigenous or local community and thus belong to the State. China, India and Nepal are particularly affected as they have ancient traditional knowledge that is widespread but well documented relating especially to medicinal formulations and treatments.

Such knowledge continues to be freely accessed and the long available therapeutic formulations and consequential products are regularly patented in developed countries as “inventions” with “novelty” value. This was in Article 9.5 of the draft Protocol until late 28 October, but did not make it to the final document. A final attempt by China to offer compromise language of Article 9.5 was rejected by developed countries.

However the Preamble to the Protocol does recognize “the unique circumstances where traditional knowledge associated with genetic resources is held in countries, which may be oral, documented or in other forms, reflecting a rich cultural heritage relevant for conservation and sustainable use of biological diversity.”

Thirdly, the acquisition and use of genetic resources before the entry into force of the new ABS Protocol was also debated. Developing countries argued for benefit sharing of continuing and new uses of such genetic resources even though the genetic resources were obtained prior to the entry into force of the Protocol and now reside in public and private ex situ collections mostly in developed countries.

Fourthly, benefits derived from resources collected in areas outside national jurisdiction such as the high seas and the Antarctica region. The Africa Group in particular argued that while access cannot be regulated in these situations no one should be allowed to benefit from these resources without sharing with the rest of the world.

The Africa Group proposed a multilateral fund for the benefits that cannot be linked to a specific country of origin or providing country under the CBD. The Protocol now contains the following provision in Article 7bis:

“Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilisation of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent.  The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally.”

However there is no time frame for this to be established; the issue will be taken up at the second meeting of the preparatory Intergovernmental Committee for the Protocol in April 2012.

Fifthly, pathogens (viruses) used to develop vaccines and diagnostic kits were another highly contentious issue. Developed countries in various degrees wanted all these to be excluded from the Protocol, which according to developing countries would result in an empty and meaningless Protocol.

·         Competent national authority in the user country;

·        Research institutions subject to public funding;

·        Entities publishing research results relating to the utilization of genetic resources;

·        Intellectual property examination/Patent and plant variety offices;

·        Authorities providing regulatory or marketing approval of products derived from genetic resources/resulting from the use of genetic resources or its derivatives]

·        Indigenous and local communities, including their relevant competent authorities, that may grant access to traditional associated with genetic resources.

Although traditional knowledge and the rights of indigenous and local communities have been given stronger recognition in the Protocol compared to the CBD provisions, the compliance provisions on checkpoints do not cover traditional knowledge.

Many provisions are qualified with “as appropriate” and “where applicable” leaving much to be interpreted at the national implementation level.

The future of the Protocol and its impact in preventing biopiracy and ensuring that the CBD objective of fair and equitable benefit sharing will continue to be fought out in the coming years.+