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TWN Info Service
on Intellectual Property Issues (Apr10/01) Below is an expanded version of the article “Rocky road still ahead for ABS protocol” first published in SUNS #6895 dated 31 March 2010. With best wishes, Rocky road
still ahead for ABS protocol (An earlier version was published in SUNS #6895 dated 31 March 2010)
Although almost all the 193 Parties to the Convention on Biological Diversity (CBD) have agreed to a single legally binding treaty, there remains deep division over the content, primarily, the balance of obligations between users and providers of biological resources. The rights of indigenous peoples and local communities are also a contentious issue. The Ad Hoc Open-ended
Working Group on Access and Benefit Sharing set up under the CBD was
mandated to finalize the text of the treaty at its 9th meeting (22-28
March) in Cali, Colombia so that formal adoption can take place at the
biennial meeting of the Conference of the Parties (COP) to the CBD in
October in Nagoya, Aichi Prefecture, Japan. The Co-Chairs are Fernando
Casas of The impetus for the treaty came from developing countries, culminating in the heads of state call at the 2002 World Summit on Sustainable Development "to negotiate within the framework of the CBD ... an international regime to promote and safeguard the fair and equitable sharing of benefits arising from the utilization of genetic resources". This call was the result of deep concerns over past and continuing biopiracy of the biological resources of developing countries and the traditional knowledge of their indigenous peoples and local communities. By the end of the "This document,
which was not negotiated, reflects the efforts by the Co-Chairs to elaborate
the elements of a draft Protocol, and is without prejudice to the rights
of Parties to make further amendments and additions to the text. This
document should be read in conjunction with the main body of the report,
which reflects the views of the Parties during the ninth meeting of
the Working Group on Access and Benefit-sharing, which took place in
The meeting was adjourned and will resume at the end of June (to be confirmed) for another seven days, focusing solely on negotiating the text of the draft protocol. (The Working Group
also adopted document L.1, which is the report of the first part of
its 9th meeting, and document L.3, which is a draft decision of the
COP submitted by the Co-Chairs for adoption of the protocol in At its 9th meeting in 2008, the COP instructed 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) an instrument/instruments". Therefore, there was pressure for the Working Group to submit a draft protocol to the United Nations headquarters for circulation to all Parties by 18 April. Under UN rules, a draft treaty must be circulated six months before it is formally adopted. In this case, the next COP meeting of the CBD begins on 18 October. 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). By the DEEP DIVISIONS PREVAIL All Parties agree that compliance is at the core of the protocol in order to prevent biopiracy of biological resources and associated traditional knowledge, and to ensure fair and equitable benefit sharing with the countries of origin/provider countries and their indigenous and local communities. All Parties agree that there is a need for legal certainty and transparency in the national and international mechanisms and measures to ensure that the third objective of the CBD is achieved. [The CBD has three objectives: biodiversity conservation, the sustainable use of components of biodiversity, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.] However, there is no agreement on key issues, including the following: * Scope of the protocol (whether it should be comprehensive in setting access and benefit sharing norms for other international agreements and processes that address this issue; whether it should cover derivatives of biological resources and continued/new uses of biological resources acquired before the CBD entered into force and now held in public and private ex situ collections such as botanical gardens, gene banks, and seed banks; whether it should cover genetic resources in the Antarctica); * Standards for granting access to genetic resources (developed countries want internationally binding standards to secure access while developing countries say that access is a matter of national legislation and the primary objective of the protocol is benefit sharing to correct past and continuing injustice); * Obligations for monitoring, tracking and reporting of the use of biological resources (developing countries want mandatory disclosure requirements and check points such as user countries' regulatory authority, publicly funded research institutions, research publishers, intellectual property examination offices and product approval authorities; and an internationally recognised certificate as evidence of compliance with national law on prior informed consent and mutually agreed terms - disclosure requirements shall be met when a user provides this certificate. Developed countries prefer "flexibility" and discretion to put in place the list of measures); * Traditional knowledge
(TK) of indigenous peoples and local communities (TK associated with
biological resources has emerged as a crucial central issue, with developing
countries, Norway, indigenous peoples’ representatives and NGOs supporting
the inclusion of TK as a cross-cutting issue in the protocol. The European
Union prefers to deal with TK in a separate section. * Technology transfer and cooperation (technology transfer is an obligation under the CBD that has not been implemented and developing countries are concerned that developed countries seek to dilute this obligation); * Financial mechanism (developed countries want the Global Environment Facility, which is also the CBD financial mechanism, while developing countries want an independent financial mechanism under the protocol itself); * Relationship between the protocol and other international instruments and processes (developing countries want other instruments and processes to be consistent with the CBD but a number of developed countries favour "specialized" agreements and arrangements that developing countries fear may "drain the protocol of meaning" and at the same time fail to ensure benefit sharing). Delegates had spent
the The CBD Parties at
the 8th meeting of the Working Group in Negotiations on text had not taken place because major developed countries resisted the idea of a single legally binding treaty and this caused delay with the compilation text emerging only in November 2009. The Working Group decided at the opening plenary on 22 March to work on the basis of 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 was the "Draft Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization" (see SUNS #6891 dated 25 March 2010). The Co-Chairs' draft draws from the Montreal Annex, regional consultations and two informal meetings convened by the Co-Chairs, all of which took place between November 2009 and March 2010. Throughout the Cali meeting the Co-Chairs reminded delegates that their draft text is a “balanced package” and that delegates should take a “holistic” approach and in their negotiations based on the text they should try to maintain the “integrity and balance“ of the package. From Tuesday to Thursday night, the Working Group split into four Contact Groups in a smaller, more informal setting in order to have more interactive discussions to seek common understanding and solutions to a list of key issues over which Parties have divergent views. When the four Contact Groups were set up on Tuesday morning, Co-Chair Hodges urged the work of the delegates to be "efficient, focused and solution based". He said that the Co-Chairs' intention was for the Contact Groups to understand what each specific issue means and importantly how it should be addressed and to arrive at solutions. The Contact Groups were also asked to deal with issues that have not been discussed yet. Parties could decide to maintain text in the draft protocol; amend the original text; or bring in new text to the relevant part of the original text. Hodges stressed that delegates should not bracket any text but instead to work together, reach "common understanding" so that there can be a holistic integrated text by Sunday at which point Parties may insert brackets if necessary. The Working Group agreed to this. (Bracketing text in UN negotiations indicates a lack of consensus but at this late stage of the access and benefit sharing protocol negotiations, the Co-Chairs were concerned that brackets would delay the finalization of the treaty.) Contact Group 1 co-chaired by Johan Bodegard (Sweden) and Jose Luis Sutera (Argentina) discussed the relationship with other instruments and processes; temporal and geographical application; flexibility for sectoral approaches; non-Parties; and financial mechanism/financial resources. Contact Group 2 co-chaired by Rene Lefeber (the Netherlands) and Ricardo Torres (Colombia) is discussing monitoring, reporting and tracking, including disclosure requirements and checkpoints; dispute settlement and access to justice; country of origin; and instances of no prior informed consent (PIC) or mutually agreed terms (MAT). (Mutually agreed terms relate to conditions for accessing genetic resources and the terms of benefit sharing when such resources are utilized.) Contact Group 3 co-chaired by Cosima Hufler (Austria) and Pierre du Plessis (Namibia) is discussing utilization of genetic resources/derivatives/benefit-sharing; benefit-sharing obligation including access to and transfer of technology; as well as biodiversity-related research, access requirements, and Parties who determine that access is not subject to PIC. Contact Group 4 co-chaired by Tone Solhaug (Norway) and Damaso Luna (Mexico) is focused on traditional knowledge (TK) and discussing TK-related issues: the appropriate recognition of the relationship between access and benefit sharing activities and TK associated with genetic resources; diversity of national circumstances; and recognition of customary law by Parties. Progress was made with respect to some issues, especially TK-related issues. However, there was frustration among developing countries that understandings appeared to be reached on some critical issues only to have some developed country delegates retract from such understandings. This was particularly so in the case of discussions on the relationship between the future protocol and other international instruments and processes. A revised draft protocol
was issued late Thursday night (26 March) and this was to be negotiated
on Friday and Saturday. In an effort to facilitate focused negotiations
while maintaining transparency and inclusiveness, the Co-Chairs proposed
and the Working Group agreed to convene as an Inter-regional Group and
to work in a "Cartagena-Vienna Plus" setting. Johan Bodegard
( (This was a modification
of a setting introduced by Regardless of the novelty
of the process, it was clear by Friday afternoon (26 March) that there
were deep divisions between developing and developed countries, with
Days of circular debates
on intellectual property (IP) offices as a checkpoint for disclosure
of country of origin, prior informed consent and mutually agreed terms
for benefit sharing reached a frustration level for developing countries
on Friday night when The African Group,
represented by Susanna Chung of She reiterated what she had said earlier in the contact group discussing compliance, that the WIPO process was a "talk shop" for years and developing countries' pressure led to a mandate in 2009 to have text-based negotiations but these are still being stalled by developed countries. "If I can have
[ She added that there are flexibilities in international IP law that allow countries to change their national law and this can be done for disclosure requirements in patent applications. Spokesperson Monica Roselle said that checkpoints play a key role. "It is mostly impossible and costly to track a resource - in the absence of checkpoints what will we do? Proposals for disclosure and consequences of non-disclosure are watered down already. We now have a very basic and general notion of disclosure for transparency purposes, where a certificate of compliance is required. This does not impinge on IPR and is about transparency and good governance regarding genetic resources," she stressed. "If you are not serious, don't waste our time. There was the COP6 decision (2002) followed by studies by WIPO and UNCTAD on disclosure, the Bonn Guidelines on access and benefit sharing ... WIPO did nothing and suddenly WIPO is the solution," lamented Malaysia's Gurdial Singh Nijar. At this point, the European Commission on behalf of the EU called for a point of order and told the Malaysian delegate to not give a "lecture". [Article 16(5) provides that CBD Parties, “recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives.”] When there was no response from developed countries and New Zealand proceeded to propose using a database and the EU proposed that information be placed in the CBD Clearinghouse Mechanism (instead of mandatory checkpoints), Malaysia said, "we are not sure this is serious or sincere if after 9 working group meetings, we are at this stage. We made a plea - we are begging. But not heeded. It is very late and it is purposeless to go on ... we see a lack of genuine commitment". [The frustration was also aggravated by the behaviour of some developed country delegates that many delegates and observers saw throughout the day and night as a display of lack of seriousness.] The Group of Latin American and Caribbean Countries (GRULAC) joined the call for a suspension of the talks. The African Group requested
time for consultations and when the Inter-regional Group reconvened
past mid-night, "This is a process for all of us and it can definitely not continue with half of the world walking out and there are many reasons why more than half the world wants to walk out We share the view that good faith is not there, despite lip service paid to good faith," he said. He called on developed country Parties to get instructions from their capitals, and said, "These issues have been discussed for many years. We have said our views again and again and again. Tomorrow, come back to us and tell us whether you are willing, whether you are serious and have the good faith to negotiate". The African Group also called for the Working Group Co-Chairs to present a revised draft protocol that captures progress made in the past few days. Talks were suspended and the Working Group Co-Chairs conducted bilateral meetings with the five regional groups the next morning (27 March) and bilateral discussions also took place between the groups themselves. At lunch time, an initiative
to break the impasse was discussed among representatives from the Like-Minded
Asia-Pacific Group, African Group and GRULAC. This was presented by
Developing countries,
MOVING FORWARD During the closing
plenary on 28 March, the Working Group did a stock-take of the progress
made in Co-Chair Casas, in his opening remarks, said that, "there were moments of enthusiasm and stress, and these are normal in any multilateral negotiations but we must overcome them to fulfill our mandate". "There are many issues pending and much work is needed, so this document (the draft protocol) represents work in progress. We want this to be very clear to everyone," he stressed. The Working Group then
adopted the document L.2 (called the Cali Annex to the meeting report,
containing the revised draft Protocol) as the basis of negotiation at
the next meeting, with the footnote that it has not been negotiated,
and that Parties retain their right to submit further text. Additional
text from developing and developed country Parties was then formally
submitted and these will be part of the official report of the Masayoshi Mizuno of
At that resumed meeting, the Working Group will also consider if it is necessary to convene at least two more informal meetings – a Friends of the Co-Chairs consultation and a Co-Chairs’ Informal Inter-regional Consultation as had been done prior to the Cali meeting, to review the work plan from Montreal to Nagoya. In a 28 March press
release by the CBD Secretariat Ahmed Djoghlaf, Executive Secretary to
the CBD said, “For its first United Nations meeting, Jochen Flasbarth, President
of the German Environment Agency and current President of the CBD COP,
said, “
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