TWN Info Service on Intellectual Property Issues (Nov09/04)
24 November 2009
Third World Network 
 
Progress in shaping protocol on access and benefit sharing
Published in SUNS #6817 dated 18 November 2009

Montreal, 17 Nov (Chee Yoke Ling) -- Prospects seem encouraging for a new international agreement to prevent bio-piracy and to ensure fair and equitable benefit sharing from the use of biological resources and associated traditional knowledge.
 
Parties to the Convention on Biological Diversity (CBD) and observers ended a week's meeting (9-15 November) in Montreal with a consolidated text that will be negotiated and hopefully finalized in March 2010 in Cartagena, Colombia before the result is sent on to the 10th meeting of the Conference of the Parties (COP) in Nagoya, Japan, for formal adoption.
 
The Co-Chairs of the negotiating process said, at the closing plenary session last Sunday, that there was a "preponderant understanding" in the Working Group that the "negotiations of the international regime aim at finalising a draft protocol under the CBD".
 
For many years, developed countries have been resistant to the calls of developing countries for a single legally binding international agreement to deal with access and benefit sharing. Their preferences ranged from voluntary guidelines to an international regime comprising legally binding and non-legally binding instruments (but not a single agreement).
 
It was thus noteworthy that Japan, initially among the most resistant, said in the closing plenary session that it was "very supportive of the Co-Chairs' assessment of the preponderance of views" in the Working Group. The head of delegation, Mr. Masayoshi Mizuno, said that "This Working Group will continuously and relentlessly aim to adopt a protocol in Japan".
 
He also clarified his statement on Monday (9 November) on this item, where he said Japan would not exclude a legally binding regime and that the nature would be determined after discussions on the substance. Pending that discussion, Japan was not in a position to accept a legally binding international regime "at this stage", indicating that it was prepared to do under certain conditions.
 
Most delegates at the meeting regarded this as a significant shift in Japan's position. Japan will host the next biennial and tenth meeting of the Conference of Parties (COP) in October 2010 in Nagoya.
 
The Ad Hoc Open-ended Working Group on Access and Benefit Sharing (ABS) has been instructed by the COP "to complete the elaboration and negotiation of the international regime on access and benefit sharing at the earliest possible time before" COP-10.
 
These negotiations were launched in 2004 at the insistence of developing countries because of the continued lack of implementation of the CBD's third objective, i. e. the fair and equitable sharing of benefits arising from the use of biological resources. The Working Group is co-chaired by Fernando Casas (Colombia) and Tim Hodges (Canada) who have been designated by the COP to steer the process until its completion.
 
The Group of Like-Minded Megadiverse Countries (LMMC) with 17 members from Africa, Asia and South America and currently chaired by Brazil, and the African Group have been providing significant impetus to the negotiations. With the newly-formed Like-Minded Asia Pacific Group (that also consists of LMMC members), developing countries are expected to provide further momentum (see SUNS #6813 dated 12 November).
 
After six meetings, the Working Group was able to arrive at a 57-page draft of the International Regime that contains the consolidated proposals and options submitted by Parties over the past year. The final round of negotiations will be from 22 to 28 March 2010 in Cartagena, Colombia.
 
At the Montreal meeting, the Working Group adopted the following package: (I) the report of the meeting; (ii) Annex I to the report, a consolidated draft of the International Regime on Access and Benefit Sharing to be called the "Montreal Annex"; and (iii) Annex II to the report, "Proposals for operational texts left in abeyance for consideration at the next meeting of the Working Group". The two Annexes form an integral part of the report and will go to the next and last meeting of the Working Group next March.
 
There are five main components in the Montreal Annex: (I) fair and equitable benefit sharing; (ii) access to genetic resources; (iii) compliance; (iv) traditional knowledge associated with genetic resources; and (v) capacity building.
 
In addition, there is a section on Objective and another on Scope.
 
Work to produce one streamlined and consolidated document with options in several key issues and brackets around words and paragraphs (signifying divergent positions and lack agreement), from a set of collated proposals submitted by Parties and observers started at the seventh meeting of the Working Group (2-8 April) in Paris. That meeting focused on compliance, fair and equitable benefit sharing, and access.
 
The Paris meeting also consolidated text on the objective and scope of the International Regime, issues that remain contentious as seen from the numerous brackets and divergent options. Developing countries want a comprehensive scope that covers all biological resources, derivatives and products.
 
On the other hand, developed countries in varying degrees seek to have a narrower scope by referring to genetic resources and not biological resources, with many not accepting derivatives or products. The European Union wants to exclude "specific uses of pathogens", regarded by some as reflecting the interests of the pharmaceutical sector. These two topics were not further discussed in Montreal and will be negotiated in Cartagena.
 
At the Montreal meeting, Parties could add new text to the three main components in the Paris Annex.
 
There was considerable disagreement and discussion over how to deal with preambular paragraphs and principles, definitions, and institutional and implementing provisions and final clauses that would complete the International Regime text. Participants and observers can submit new text for these topics at least 60 days before the last Working Group meeting.
 
The Co-Chairs ruled that no new submissions would be allowed for the five main components, as "the door had to closed" for the finalisation of the International Regime. However, Hodges said that text that could assist in achieving consensus on the existing text would be welcomed.
 
Not surprisingly, the discussions on compliance were among the most difficult, as this component is widely acknowledged as central to the effectiveness of a legally binding instrument or protocol. Of the 57 pages, more than 30 were on compliance, containing the most brackets and featuring a wide range of options.
 
Key issues that will need to be resolved include the use of an internationally recognized certificate to track and monitor genetic/biological resources; derivatives and products; disclosure requirements in patent applications (of prior informed consent and compliance with domestic laws in the country of origin or country providing the resource); the types of checkpoints for this tracking (e. g. patent offices and research funding agencies); access to justice to enforce ABS arrangements; tools to ensure compliance; codes of conduct; etc.
 
The Montreal meeting moved surprisingly quickly after a slow start, to streamline and consolidate text on the other two main components: traditional knowledge associated with genetic resources, and capacity building.
 
Considerable progress was made in the consolidation of the component on traditional knowledge associated with genetic resources. The previous week's negotiations in the Article 8(j) Working Group (2-6 November) had been quite successful and contributed to the relatively smooth consolidation of the text in the International Regime.
 
The African Group took an active role with the cooperation of the International Indigenous Forum for Biodiversity (representatives of indigenous peoples' organisations) to reduce the amount of text without losing the substance. The high degree of direct participation by the indigenous peoples' groups in the ABS is unique among all environmental treaties.
 
Most brackets were removed and according to the Contact Group co-chair Damaso Luna (Mexico), most of the remaining brackets would likely be removed when the scope of the regime was decided. For example, there is no agreement yet on whether derivatives and products of genetic resources/biological resources should be included so all such references are bracketed. Also, where references to "prior informed consent" are found in several provisions, Canada has proposed the addition of "or approval and involvement".
 
A matter of concern for developing countries was the attempt of most developed countries to shift matters related to traditional knowledge to the World Intellectual Property Organisation (WIPO). The recently renewed mandate of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore was not to prejudge or prejudice the work on the International Regime on ABS under the CBD. Thus, the LMMC, GRULAC and Like Minded Asia Pacific Group in Montreal objected to removing or diluting the substantive links between traditional knowledge and ABS in the International regime.
 
NATURE
 
The issue of the nature of the international regime was formally addressed in the opening plenary session of the Montreal meeting. The Working Group Co-Chairs Casas and Hodges then conducted consultations with the governmental regional groups as well as the IIFB and civil society organisations at the meeting on the matter.
 
The Co-Chairs presented their "reflection" on the nature of the International Regime at the closing plenary session on Sunday and read the following statement on the delicate issue of nature:
 
"Having reflected on the statements made in plenary on this item and having discussed the matter with all regions and with a range of representatives of indigenous and local communities and with stakeholders, it is the Co-Chairs' view that the Working Group shares the preponderant understanding, for the purposes of completing its mandate at the earliest possible time and subject to agreement that the regime would include inter alia one or more legally binding provisions, negotiations of the international regime aim at finalising a draft protocol under the CBD. The Co-Chairs confirm that this view is without prejudice to a decision by the Conference of the Parties at its tenth meeting on adoption of such a protocol.
 
"For the record, the Co-Chairs confirmed that this view in no way alters the COP9 decision or alters the positions of delegations on this matter as expressed on Monday in plenary".
 
This will form part of the meeting's report and it is expected that informal consultations led by the Co-Chairs will be continued into the Cartagena Working Group session.
 
In the first part of the week, there was considerable disagreement and discussion over how to deal with preambular paragraphs and principles, definitions, and institutional and implementing provisions and final clauses that would complete the International Regime text. These are now part of a separate Annex II of the Montreal report. Participants and observers can submit new text for these topics at least 60 days before the last Working Group meeting.
 
The Co-Chairs ruled that no new submissions would be allowed for the five main components, as "the door had to closed" for the finalisation of the International Regime in Cartagena. However, Hodges said that text that could assist in achieving consensus on the existing text would be welcomed.
 
INTER-SESSIONAL WORK
 
Given that the formal negotiations of the Montreal Annex will only take place next March, and the document contains 57 pages with thousands of brackets, the Working Group agreed to hold two informal inter-sessional meetings before it re-convenes in Cartagena.
 
The Co-Chairs presented the outline of the inter-sessional work on Saturday (14 November) afternoon, following informal discussions with Parties over the week. There will be two distinct meetings. The first will be a 3 to 5-day meeting of "Friends of the Co-Chairs" in late January or early February 2010 that Canada offered to host.
 
["Friends of the Chair" is a United Nations practice whereby, in cases where the views and positions of countries are diverse and divergent, the chair of a negotiation group may select a much smaller group of negotiators who have been active, to informally meet for discussions or negotiations. The aim is to facilitate more in-depth and frank exchanges so that there can be a better understanding of positions and solutions sought to arrive at a consensus when formal negotiations resume.]
 
This meeting will comprise participants selected by the Co-Chair: (I) 18 representatives from CBD Parties; and (ii) two representatives each from indigenous and local communities, civil society and industry. In addition, there will be one representative each from the ninth and tenth Presidencies of the COP (i. e. Germany and Japan respectively).
 
The purpose of the meeting is to work on defining possible solutions on key issues in the negotiation of the International Regime. Key issues for discussion would be provided in advance by the Co-Chairs. The expected outcome is a report by the Co-Chairs on possible solutions for those key issues.
 
The second meeting will be an inter-regional informal consultation to be held prior to the ninth meeting of the Working Group composed of: (I) 25 participants designated by Parties from within the five regional groups recognized by the UN (five per region); (ii) 10 observers (advisors) (two per region) could also be present in the meeting at any one time (others can be outside the meeting room and there can be a rotation of advisors as decided by the Parties concerned); (iii) 2 representatives each from indigenous and local communities, civil society and industry; and (iv) one representative each from the ninth and tenth Presidencies of the COP.
 
This group will discuss preambular text, definitions and provisions relevant to the consolidation of operative text of the International Regime. It is expected that the outcome of the meeting will facilitate and accelerate the negotiations at the ninth meeting of the Working Group.
 
The group would work on the basis of the report of the meeting of the Friends of the Co-Chairs, the two annexes to the report of the eighth meeting of the Working Group as well as pre-session documents prepared for the ninth meeting of the Working Group.
 
The 3-day meeting would be held on 16-18 March 2010, in Cartagena, followed by the customary informal consultations between the Co-Chairs and regional groups on 20-21 March, and then by the Working Group meeting itself on 22-28 March.
 
James Shikongo (Namibia), on behalf of the African Group, said that after internal consultations the Group agreed to the Co-Chairs' process. However, they proposed that for the meeting of the Friends of the Co-Chairs the number of representatives should be increased from 3 to 4 per region, and for the second meeting, from 5 to 6 per region. It also called for observers (advisors) to be increased from 2 to 4 per region.
 
[In the previous day's late afternoon plenary, Namibia, speaking on behalf of the African Group, expressed concerns the group had over fair and equitable representation in the inter-sessional meetings. It was also concerned over the status of the outcome of the second meeting and how it would help the last Working Group meeting advance work negotiating the International Regime.]
 
Malawi said that the African Group wanted only one meeting and gave in to two. It now wanted more balance.
 
The final decision of the Co-Chairs will be communicated to Parties and observers within the next few weeks.
 
Co-Chair Casas said in his closing plenary statement that the way the Working Group has worked to achieve such positive results in Montreal was very inspiring. "The good spirit and atmosphere fills us with hope that the mandate that this group and Co-Chairs have will play out, and that in Nagoya we have a result that we will be very proud of for the Convention," he said.
 
He emphasized that the process will be always transparent without surprises and they will continue along these lines until the final stretch.
 
He added that, "The growing wave and sharing of like-minded vision is so welcome".
 
This was in reference to announcements of the formation of two "like-minded" groupings. The first was at the opening plenary when Gurdial Singh Nijar of Malaysia announced the creation of the Like-Minded Asia Pacific Group (of developing countries) for the purposes of the negotiations of the International Regime.
 
The second announcement came in the closing ceremony when New Zealand's delegate introduced the "Like-Minded in spirit Group of Women" composed of some women delegates at the Working Group meeting seeking gender balance, including from Cameroon, South Africa, Malawi, Lesotho, Mozambique, Thailand, Singapore, Cook Islands, Federated States of Micronesia, Norway, Australia, New Zealand, Austria and the Netherlands. +

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