TWN Info Service on Intellectual Property Issues (Mar10/08)
20 March 2010
Third World Network

Optimism for a new treaty to combat biopiracy
(An earlier version of this article was first published in SUNS #6888 dated 22 March 2010.)

Cali, 19 March (Chee Yoke Ling) – Political momentum from developing and developed countries grows for a new United Nations treaty that promises to combat biopiracy and ensure that developing countries get their fair and equitable share of benefits from the use of biodiversity and associated traditional knowledge.

The Ad Hoc Open-ended Working Group on Access and Benefit Sharing set up under the Convention on Biological Diversity (CBD) will work intensively in its last negotiation session that begins on Monday, 22 March in the Colombian city of Cali. It has been working on developing the international regime on access and benefit sharing since 2004.

The Working Group in its 9th meeting (22-28 March) will finalize the text of the treaty that is expected to be adopted at the biennial meeting of the Conference of the Parties (COP) to the CBD in October in Nagoya, Aichi Prefecture, Japan.

[Under UN rules, a draft treaty must be formally submitted to the UN headquarters 6 months before the COP convenes. There are 193 parties to the CBD with the notable exception of the United States.]

Ahead of the important meeting in Cali, political momentum for the treaty has grown significantly.  Ministerial declarations and positions have emerged from meetings of African ministers, the 17-member Group of Like-minded Megadiverse Countries (Brazil, Colombia, Costa Rica, Democratic Republic of Congo, Ecuador, India, Indonesia, Malaysia, Mexico, Peru, Philippines, South Africa and Venezuela) and the European Union’s Council of Environment Ministers.

African environment ministers and senior officials from more than 43 countries met in Windhoek, Namibia from 8 to10 March on the International Regime on Access and Benefit Sharing. In his opening speech, President Hifikepunye Pohamba of Namibia said, “There would be no better gift to the people of the world in this International Year of Biodiversity than an agreement on a fair and equitable international regime on Access and Benefit Sharing”.

The meeting reaffirmed the Africa Group’s position that there should be a single comprehensive legally binding international regime to ensure the fair and equitable sharing of benefits arising from the utilization of biological resources and/or genetic resources and associated traditional knowledge in accordance with the relevant CBD provisions.  

It restated the Africa Group position that (1) access to biological/genetic resources is subject to national legislation, and is linked to mandatory Prior Informed Consent and Mutually Agreed Terms; and (2) the international regime should specify minimum standards for benefit sharing.

The meeting re-affirmed the importance of the rights of indigenous and local communities under the international regime; the need for a strong compliance system at national, regional and international levels including laws in user and provider countries; tools for monitoring and tracking of resources that leave national bodies; technology transfer; and capacity building.

The African ministers also called for the inclusion of ex situ collections of biological resources in the scope of the international regime and that these shall include continued and new uses of pre-CBD accessions of biological resources and associated traditional knowledge. This is in recognition of the evolving science in using such resources.

The meeting called on all the African Ministers of Environment to fully participate in the COP meeting in Nagoya in October 2010 in order to push for the adoption of an international binding protocol to the CBD on Access and Benefit Sharing.

The 17-member Group of Like-minded Megadiverse Countries in whose territories are located the bulk of the world’s biodiversity and traditional knowledge of indigenous peoples and local communities, adopted the Brasilia Ministerial Declaration on 12 March at a meeting in the Brazil capital, with a strong focus on the international regime.

They resolved to “to join efforts as a Group for the urgent and effective conclusion of the negotiations for the Protocol/legally binding instrument on Access and Benefit-sharing … containing legally binding provisions and mechanisms to prevent biopiracy, especially when genetic resources and associated traditional knowledge leave the boundaries of the country of origin and to ensure fair and equitable sharing of all the benefits arising out of the commercial and other utilization of all the genetic resources covered by the CBD and associated traditional knowledge”.

They also resolved “to adopt at the tenth meeting of the Conference of the Parties to be held in October 2010, the legally binding Protocol/legally binding instrument on Access and Benefit-sharing for effective implementation of the threefold objectives of the CBD that would contribute to the eradication of poverty, promotion of human well being and alleviating socio-economic condition of our people”.

The meeting agreed “to ensure that the Protocol/legally binding instrument includes, as a cross cutting issue, provisions for the fair and equitable sharing of benefits derived from the utilization of traditional knowledge, innovations and practices associated with biological and genetic resources”.
The Group stated that it will “also ensure that the Protocol/legally binding instrument includes comprehensive provisions for compliance with the aim of ensuring the effective fulfillment of the rights and obligations of Parties regarding access to genetic resources and fair and equitable sharing of benefits arising from the utilization of these resources. These provisions shall include, among others: prior informed consent from countries of origin and, as appropriate, indigenous and local communities with mutually agreed terms, certificate of compliance, check points, disclosure requirements, measures in user countries, clearing house mechanism, information sharing and cooperation between competent national authorities in order to ensure the enforcement of national laws and conditions under which access was granted, as well as the provisions of the Protocol/legally binding instrument/legally binding instrument”.

The Group further reaffirmed to ensure that patents and other intellectual property rights are supportive of and do not run counter to the Convention on Biological Diversity and the Protocol/legally binding instrument on Access and Benefit-sharing.

[Such a provision on the interface between intellectual property rights and the CBD is already in Article 16(5) of the CBD.]

It wants the Protocol/legally binding instrument “to provide for the development of human resources and capacities in the developing countries, including especial measures for indigenous and local communities, for the effective implementation of the Protocol/legally binding instrument, including the establishment of a financial mechanism to support capacity-building programmes”.

The Group also reaffirmed “the obligations of developed country Parties to provide new and additional financial resources and transfer of benign technologies to developing countries, in accordance with the provisions of the CBD, and stated that the new treaty should provide for additional obligations binding on developed countries to provide new and additional financial resources and technology transfer on concessional and preferential terms, as required by developing country Parties”.

Referring to the fact that various international fora deal with related issues, the Group resolved to continue consultations among themselves “for developing consensus and common understandings on matters which may have an impact on conservation and sustainable use of the biological diversity, under the CBD and other multilateral fora, such as the TRIPS Council of the WTO, WIPO and FAO”.

Although developed countries had earlier been resistant to a new legally binding treaty on access and benefit sharing, hence delaying the negotiations for several years, a gradual shift has taken place since the last meeting of the CBD Working Group (please see SUNS #6817 dated 18 November 2009).

The European Union’s Environment Council (of ministers) adopted conclusions on “EU and global vision and targets and international access and benefit sharing regime” on 15 March in Brussels, including one that “reconfirms the commitment of the EU to the successful conclusion of negotiations on the international ABS regime at COP 10 of the CBD and CALLS UPON all Parties to continue providing constructive contributions with the aim of reaching consensus”.

The Council expressed its view “that the United Nations Year of Biodiversity offers the political momentum to strengthen implementation of all three objectives of the CBD”.

[The 3 objectives are: biodiversity conservation, sustainable use and fair and equitable benefit sharing from that use.]

The EU Council reiterated “the need for transparency, legal certainty and predictability when accessing genetic resources and fairly and equitably sharing the benefits arising from the utilisation of genetic resources and traditional knowledge associated with genetic resources”.

It stressed therefore that “the international ABS regime should establish a transparent regulatory framework through a Protocol to the CBD with legally binding and non-binding provisions”.

The EU also wants such a Protocol to include international standards on national access law and practice linked to compliance.

In a press release dated 18 March Ahmed Djoghlaf, Executive Secretary of the CBD said, “The time for talk is over. The time for action is now. Cali is the right place to demonstrate the required political will and display the necessary spirit of compromise by all stakeholders. Cali is the right place and the right opportunity to offer to the children of the world as a gift to the celebration of this year the International Year of Biodiversity the draft Aichi-Nagoya Protocol on access and benefit sharing.”   

The Co-Chairs of the Working Group, Timothy Hodges of Canada and Fernando Casas of Colombia, said, “The prospects for finalizing the text of the international regime have never been better and the stakes have never been higher. There is no doubt that a lot of hard work will be needed in Cali over the next seven days in order for the negotiators to fulfil their mandate from the Conference of the Parties.  But a new spirit of co-operation has emerged and there is a growing appreciation that this regime represents a win-win situation for all countries.”  

“The international regime is about seizing opportunity, together.  After all, every one of us relies on genetic resources for food, health and social well-being.  We have a lot in common and now is the time to recognize and build on this simple fact,” they added.

To facilitate the negotiations that have limited time to be completed, the Working Group at its last meeting in Montreal in November had mandated two inter-sessional meetings under the guidance of the Co-Chairs. A “Friends of the Co-Chairs” meeting was held on 26-29 January, while a Co-chairs’ Informal Inter-regional Consultation was held on 16-18 March in Cali. Parties to the CBD agreed to these meetings as the 57-page text with numerous options and many brackets (indicating lack of consensus) before them presented enormous challenges.

["Friends of the Chair" is a UN 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.]

The purpose of the Friends of the Co-Chairs’ meeting in January was to work on defining possible solutions on key issues in the negotiation of the International Regime. The Co-Chairs’ “Paper on Selected Key Issues” was provided for the discussion and this was also posted on the CBD website.

The participants in that meeting included 18 representatives from Parties; one representative each from the Presidency of the 9th and 10th meeting of the CBD COP (current and next Presidency); and two representatives each from the indigenous and local communities, civil society, industry and the research community.

The Co-Chairs’ Informal Inter-regional Consultation in Cali (16-18 March) was mandated to consult on preambular text, definitions and provisions relevant to the consolidation of operative text of the International Regime, and to identify concrete solutions in order to facilitate and accelerate the negotiations at the 9th meeting of the Working Group (22-28 March in Cali). There were 40 participants from Parties, 12 from indigenous and local communities, industry, research institutions and civil society, and one representative of the current and next Presidency of the COP.

A “Co-Chairs’ Guidance Note” was provided in advance (also posted on the CBD website). The purpose of the Note was to provide the Co-Chairs’ guidance in the streamlining, consolidation and finalisation of the text of the international regime. It is clearly stated in the document that it “has no formal status and is not intended for negotiation”.

From informal reports of the two meetings (that had the participation of representatives of governments, indigenous peoples, civil society, research community and industry), a high level of common understanding has been reached on many critical key issues that delegates say bode well for the week ahead.+