TWN Info Service on Intellectual Property Issues (March 10/10)
25 March 2010
Third World Network

Access and benefit sharing protocol gaining shape
Published in SUNS #6891 dated 25 March 2010
 
Cali, 24 Mar (Chee Yoke Ling) -- Detailed work is underway to craft a treaty to prevent biopiracy and to ensure the fair and equitable sharing of benefits from sustainable use of biodiversity.
 
The 9th session of the Ad Hoc Open-ended Working Group on Access and Benefit Sharing under the Convention on Biological Diversity (CBD) is meeting in Cali, Colombia from 22 to 28 March.
 
At the opening plenary on Monday, the Working Group co-chairs, Timothy Hodges of Canada and Fernando Casas of Colombia, strongly urged Parties to the CBD to produce a "credible and meaningful" treaty. They called on Parties to build on the productive work done in regional meetings of Parties and two informal meetings under the auspices of the co-chairs over the last few months, since the last formal meeting of the Working Group in November 2009.
 
They stressed that delegates should maximize the seven days left in the current and last negotiation session to meet the mandate of the Working Group to finalise the text of the international regime so that a Protocol to the CBD can be adopted at the biennial meeting of the Conference of the Parties (COP) to the CBD in October in Nagoya, Aichi Prefecture, Japan in October.
 
[The CBD Parties at the 8th meeting of the Working Group in Montreal last November had agreed to two informal inter-sessional meetings because the 57-page text that was produced, called the Montreal Annex, had numerous options and many brackets (indicating lack of consensus) and did not appear to be workable with only seven days remaining for formal negotiations.]
 
The Working Group decided at Monday's plenary that this week's negotiations will be based on three documents. First is a streamlined 15-page "non-paper" prepared by the co-chairs at the request of regional representatives who participated in a co-chairs' Informal Inter-regional Consultation (CIIC) held on 16-18 March in Cali. This is the "Draft Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization".
 
The second is another "non-paper" that is a draft Decision of the Conference of Parties to the CBD to adopt the Protocol that also contains a work programme to prepare for the entry into force of the Protocol.
 
The third document is the Montreal Annex that contains all the proposals and options of Parties and this will remain on the table for the negotiations.
 
In addition, the co-chairs provided a guidance note that contains their understanding of points of convergence of Parties gleaned from all the regional meetings, the two inter-sessional meetings and bilateral consultations over the past few months.
 
(In the UN, "non-papers" have no formal status and can include positions/views circulated by negotiation parties or text prepared by the chairperson to assist in moving negotiations forward by identifying areas of potential consensus.)
 
Monday's plenary heard almost all the Parties confirm that they will work to produce a single legally binding instrument that will be a Protocol under the CBD, that is expected to be adopted in October.
 
The exception was Canada, which said that it wants to keep options open on whether the final outcome would be one legally binding Protocol. It returned to the 2008 instruction by the Conference of Parties (COP) to the Working Group "to finalize the international regime and to submit for consideration and adoption by the Conference of the Parties at its tenth meeting an instrument/instruments".
 
The COP referred to "instrument/instruments" and left open the legal nature of the international regime because there was no agreement then on this issue. Since then, all other Parties have taken decisions at the political level to work on a single legally binding Protocol.
 
Malaysia spoke on behalf of all the developing countries comprising the Group of Latin American and Caribbean countries (GRULAC), the Asia Pacific Group, the African Group, as well as the 17-member Like-Minded Megadiverse Countries (LMMC).
 
Spokesperson Gurdial Singh Nijar said that, "Together, we collectively harbour the overwhelming majority of the remaining biodiversity on the planet. Our indigenous and local communities hold unique ancestral knowledge for biodiversity and for the sustenance of life itself. We thus hold a sacred responsibility to realize the use of resources and knowledge for the future of mankind, for the eradication of poverty and for the improvement of the livelihood of our populations.
 
"As we in the developing world are rather painfully aware, it was only after a long and sustained struggle that we finally reclaimed through the CBD sovereign rights over our biological resources and with this, our right to determine conditions for their access. This was meant to address the historical inequity whereby our resources were taken for free, even misappropriated, with no fair benefits in return. Regrettably, this misappropriation and the non-sharing of benefits continues. Till now, the third objective of the CBD remains an illusory and empty promise - largely unfulfilled in all its essential facets."
 
He added, "The Co-Chairs' Guidance Note makes clear that compliance is at the core of this Protocol. We appeal to our partners - please do not roll back the Bonn roadmap for the negotiations. In particular, the mandate requires us to negotiate an instrument with one or more binding components. This means a binding protocol. Therefore, the question of the nature of the instrument is not a subject of negotiation. Any roll back would have dire consequences for the fate of this Protocol".
 
(The Bonn roadmap refers to the decision of the 2008 meeting of the Conference of Parties instructing the Working Group "to finalize the international regime and to submit for consideration and adoption by the Conference of the Parties at its tenth meeting" in 2010.)
 
Brazil, on behalf of the LMMC, said that "our goal is to produce the final draft of the ABS Protocol here in Cali. The LMMC supports a single and comprehensive draft Protocol with the understanding that compliance will be at the core of the Protocol".
 
The LMMC's key issues for the protocol included: derivatives of genetic resources; an adequate treatment of issues related to traditional knowledge (such as prior informed consent and mutually agreed terms); recognition of the country of origin concept; provisions on non-Parties; clear obligations ensuring access to and transfer of technology and better provisions regarding financial resources and mechanisms and capacity; and mechanisms to monitor compliance and international certificate, which are at the heart of the protocol.
 
Mexico, on behalf of Latin America and the Caribbean (GRULAC), added the region's support to use the co-chairs' draft text as a basis for negotiations. Spokesperson Damaso Luna also said that "compliance is the very heart of the Protocol". Other important issues included derivatives from genetic resources, country of origin, prior informed consent of indigenous and local communities on traditional knowledge to be assured at all cost, finance and technology transfer.
 
Malawi, speaking on behalf of the Africa Group, focussed on advances in science and technology since the CBD went into force on 29 December 1993, noting that in practice all benefits are derived from almost all elements of biological diversity and associated TK-ecosystems; biological resources; genetic resources, including biological extracts, organisms, parts thereof, derivatives, genes, DNA, molecules, and genetic information.
 
"We believe this reality and understanding applies to all regions and sectors, and Africa calls upon this meeting to address the issue of benefits from a holistic approach, which is rooted on the principles of use or utilization' and value-adding, as well as transfer of appropriate technologies and funding," said Malawi.
 
The Africa Group also provided a list of their issues and concerns that were not adequately reflected in the draft Protocol but reiterated that they will work on the basis of the co-chairs' text.
 
Cook Islands, on behalf of the Asia Pacific Group, said derivatives must be included and that the financial mechanism must be distinct from financial resources in the Protocol. Access to and transfer of technology should be adequately addressed. And there should be provisions on non-Parties.
 
All the developing countries stressed the need to have provisions that deal with the obligations of non-Parties. A main reason for this is the fact that the United States is not a CBD Party and as such will not be able to be a Party to a protocol under the CBD. However, its public and private sector entities constitute a high proportion of users of biological resources from developing countries.
 
Spain, on behalf of the European Union, said that the EU Council of Ministers approved last week conclusions that sent some very powerful messages to this meeting. One of the conclusions centre on the international regime on ABS. The spokesperson said that he was very proud and satisfied that following a lengthy process of negotiations, the EU ministers now recognise and clearly support the development of a protocol on ABS. Consistent with that, the EU could accept the co-chairs' streamlined paper as the basis of negotiations for this week.
 
Serbia, on behalf of the Central and Eastern European states, Korea, Norway, Australia and New Zealand spoke in support of the co-chairs' draft as well.
 
New Zealand's spokesperson said that her government supports a legally binding Protocol depending on it being implementable and that it makes legal sense.
 
Japan said that as host country of the 10th Conference of Parties meeting, "we are aware of the huge responsibility that we should continue from the last 2 years. As we hear opinions of other delegates, the task ahead is very huge bearing in mind that we spare no effort in discussion so we all make great progress in the next 7 days. We strongly support the efforts of the co-chairs in streamlining the text and preparing the documents".
 
The International Indigenous Forum on Biodiversity expressed their disappointment that the draft Protocol did not reflect their concerns and issues. "We are deeply disappointed however that the draft protocol does not include our rights and interests that had been supported in the Montreal annex," they said in a plenary statement.
 
They added, "If we are to go forward in achieving an agreed protocol for the international regime, then certain key issues must be included now in the draft protocol".
 
They listed the following minimum and necessary requirements:
 
* The protocol shall state in the preamble that the rights of indigenous peoples and local communities are respected.
 
* Where traditional knowledge is being accessed, the prior informed consent of the indigenous peoples and local communities must be obtained, and this shall not be subject to national legislation.
 
* The preamble to the protocol shall recognise the rights of indigenous peoples and local communities to genetic resources.
 
* The importance and relevance of traditional knowledge shall be fully integrated throughout the protocol, especially in the Compliance section.
 
* The protocol shall recognise the existence and role of customary laws of indigenous peoples and local communities.
 
NGO representatives at the plenary stressed the importance of the rights of indigenous peoples and local communities, comprehensive and broad scope, strong compliance especially in relation to user countries, tracking and monitoring and the need to deal with non-Parties, as well as users and providers in the territories of Non-Parties. +