TWN Info Service on Intellectual Property Issues (July10/04)
14 July 2010
Third World Network

This article was first published in SUNS #6964 Tuesday 13 July 2010
Benefit sharing protocol text negotiations finally start

Montreal, 11 July (Chee Yoke Ling) -- Governments that are Parties to the United Nations Convention on Biological Diversity (CBD) finally started to negotiate the text of a draft protocol on access and benefit sharing (ABS) in Montreal on 10 July, after more than five years of protracted discussion and debate.
 
The new treaty is aimed at stopping biopiracy and to ensure that developing countries that constitute the bulk of providers of biological resources get their fair and equitable share of benefits from the use of their biodiversity and the associated traditional knowledge of their indigenous peoples and local communities.
 
With the entry into force of the CBD since 1993, there are legal obligations for users of genetic resources or associated traditional knowledge to fairly and equitably share the benefits of such use with the countries of origin or countries that provide the resources, as well as the relevant indigenous and local communities. However, developed countries and their research institutions and industries have not fulfilled this objective.
 
[The CBD has three objectives: biodiversity conservation; sustainable use of biodiversity components; and the fair and equitable sharing of benefits arising from the utilization of genetic resources.]
 
The CBD's Ad Hoc Open-ended Working Group on ABS was mandated to finalize the treaty at its 9th meeting (22-28 March) in Cali, Colombia so that formal adoption can take place at the October 2010 meeting of the Conference of the Parties (COP) in Nagoya, Japan.
 
Almost all the 193 Parties to the CBD have agreed to a single legally binding treaty (the US is not a Party but its research institutions and private sector are major bio-prospectors of the world's biodiversity).
 
However, there remains deep division over the content: developed countries want to also prioritise access to genetic resources in the protocol while developing countries strongly stress that the third CBD objective of fair and equitable benefit sharing is the protocol's primary goal to correct the injustice of biopiracy that has been going on for a long time and continues despite the CBD.
 
Developing countries want to have a comprehensive scope for the protocol with a strong and effective compliance system because transboundary enforcement in user countries is a crucial element.
 
On the other hand, almost all developed countries seek a limited scope and prefer to leave benefit sharing to be largely dealt in "mutually agreed terms" - the language in the CBD that they interpret to be contractual agreements.
 
The rights of indigenous peoples and local communities are also a contentious issue. Norway stands out as being closer to the position of developing countries.
 
The Cali meeting began with an unwieldy document that contained a wide range of options submitted by CBD Parties and almost 2,000 brackets (indicating lack of consensus).
 
The meeting failed to even begin negotiations and was suspended, but Parties accepted a streamlined 16-page draft ABS protocol with 31 articles and two annexes, prepared by the Working Group Co-Chairs Tim Hodges of Canada and Fernando Casas of Colombia, as the basis for negotiations at the ongoing resumed meeting in Montreal (10-16 July).
 
At the opening plenary session on 10 July, the Co-Chairs strongly told the Parties that this week is the last opportunity to finalise the protocol and this being the International Year of Biodiversity, "we must not fail in our task".
 
The world's leaders will meet in September at the annual UN General Assembly meeting in New York where there will be a special session on biodiversity. Failure to finish work on the protocol would have a negative impact on that and the Nagoya meetings.
 
To help the negotiations move faster, the Parties established the Inter-regional Negotiating Group (ING) at the plenary. This consists of five spokespersons self-selected from among the Parties from each of the five UN regions, two representatives each from Indigenous and Local Communities, Civil Society, Research Institutions and Private Sector, as well as the current (Germany) and incoming (Japan) COP Presidents.
 
These representatives can be replaced, as needed, by each grouping. All other Parties and observers are also in the room to ensure transparency of the proceedings. Observers at the table can provide "guidance" on the items being negotiated while textual inputs are the prerogative of the Parties.
 
[At the request of the International Indigenous Forum for Biodiversity on 11 July, it was later decided that representatives of the Indigenous and Local Communities can also provide text proposals but these will then have to be supported by at least one Party to be considered in the negotiations. This was because the issue of traditional knowledge, prior informed consent and benefit sharing with these communities are integral parts of the protocol.]
 
Co-Chair Casas explained the "rules of engagement" at the opening plenary. The ING will negotiate article-by- article. An article will be considered agreed if there are no objections, bearing in mind that nothing is agreed until everything is agreed.
 
He urged Parties to "exercise maximum restraint" and "avoid insertions that only reflect your positions". Any proposed text should improve the draft protocol and "accommodate the views of others". If there is no agreed compromise, there can be brackets on the text, which will be considered again later.
 
The ING will deal with Articles 1-19, except for Article 2 (Use of Terms) in the first three days. A plenary will be held on Tuesday, 13 July to assess progress. The ING will then continue to negotiate the preamble, use of terms and final clauses (Articles 20-31).
 
As of Sunday (11 July), the ING had negotiated three articles on Objective, Scope and Fair and Equitable Benefit-Sharing. They agreed to include a new article on the relationship between the protocol and other international instruments and started negotiations on this too.
 
By the end of the first day, Article 1 on Objective of the protocol was agreed: "The objective of this Protocol is the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components".
 
The words "to ensure" fair and equitable benefit-sharing were not acceptable to several (including) Canada.
 
"Facilitated access" was proposed by the EU, South Korea and Japan and this was opposed by developing countries that stressed the absence of such a concept in the CBD. The agreed language in the CBD's Article 1 on Objectives that relates to benefit sharing was finally accepted by all Parties.
 
Discussions then took place on Article 3 (Scope) but there was deep disagreement, with developing countries wanting a comprehensive scope and most developed countries preferring a much narrower coverage.
 
The Group of Latin American and Caribbean Countries, the Group of Like-Minded Megadiverse Countries, the Like Minded Group of Asia Pacific countries (LMGAP) and the Central and Eastern European group proposed the addition of "derivatives" of genetic resources (GR).
 
Developed countries did not agree to this except for Norway that said these would be included by using the words "This Protocol shall apply ... to the benefits arising from ANY utilization" of GR. Malaysia, on behalf of LMGAP, stressed that without derivatives, "we empty the protocol of any meaningful benefits to be shared".
 
Canada proposed the exclusion of human GR; GR beyond national jurisdiction; GR that fall under Annex I of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) for CBD Parties that are ITPGR Parties; GR when "utilized solely as a commodity"; and traditional knowledge associated with GR acquired prior to the protocol's entry into force.
 
The COP at its second meeting in 1995 had decided that, "human genetic resources are not included within the framework of the Convention". Several Parties proposed that if these are to be included in the protocol, there should be another COP decision.
 
Australia proposed the exclusion of "human pathogens".
 
[There is huge commercial interest in medically relevant microorganisms, including pathogenic organisms, and the pharmaceutical industry is keen to see the carving out of pathogens from the protocol.]
 
The EU proposed that the protocol apply to GR acquired after the protocol's entry into force, and the exclusion of GR outside national jurisdiction and the Antarctica. Japan and New Zealand opposed retroactive application of the protocol.
 
The Africa Group, LMGAP and Peru said that benefit sharing begins from the entry into force of the CBD. The Africa Group proposed the inclusion of new and continuing uses in order to fairly capture the benefits for developing countries.
 
Namibia, on behalf of the Africa Group, said that exclusion of GR beyond national jurisdiction would amount to the "privatisation of global commons" and depriving developing countries of their share of the benefits.
 
A new article on the relationship between the protocol and other treaties will be added as a possible solution to deal with some of the exclusions. A small group of Parties was assigned to work on compromise text that would maintain the integrity of the protocol when other fora deal with access and benefit sharing related to specific genetic resources or associated traditional knowledge.
 
Except for an afternoon break for the final match of the FIFA World Cup, Parties negotiated the article on Fair and Equitable Benefit-Sharing through the second day (Sunday, 11 July) into the night. The issue of "derivatives" of genetic resources was one of the contentious issues in this set of negotiations and another small group worked for three hours that night. +