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TWN Info Service on Intellectual Property Issues
(Oct10/04) South-North Development Monitor (SUNS) #7019,
15 October 2010 Nagoya, 14 Oct (Chee Yoke Ling and Christine von Weizsacker) -- Parties to the Convention on Biological Diversity started meeting in an Inter-regional Negotiating Group (ING) format in Nagoya, Japan on 13 October to resume their final negotiations on the text of the Access and Benefit Sharing Protocol that they hope to adopt at the closing of the Conference of Parties on 29 October. "The time is now to finish this negotiation
... there will not be another time", said Tim Hodges of They are also the co-chairs of the Ad Hoc Open-ended Working Group on Access and Benefit Sharing set up under the Convention that is mandated to negotiate a new international regime to prevent biopiracy and to ensure the fair and equitable sharing of benefits from the utilization of biological resources and associated traditional knowledge. Hodges stressed that this is the last ING meeting (13-15 October). "We have the last task of submitting text to the meeting of the Working Group on ABS (access and benefit-sharing) on Saturday. You are responsible to governments and stakeholders, and also for the future generations on the globe. You have to draft the Protocol text. The Working Group will reconvene on Saturday only for a short time. The work plan and implementation of the Protocol on ABS is then the task of COP (Conference of Parties that will meet for its 10th session from 18 to 29 October)," he said. Following the short opening where the media was also present, the ING moved quickly to work. The co-chairs said that they expect an Informal Negotiation Group to be established by the COP that will continue to negotiate through the COP meeting, but this will be a new group, and not the setting used so far in the Working Group on ABS. Casas proceeded to explain the co-chairs' scenario note that they had prepared (as in previous meetings) to facilitate the negotiations. Delegates were given a preview of what will happen in the three days of the ING meeting, with various issues under the Protocol that are expected to be taken up each day. In the scenario note, the co-chairs stated that,
"We are convinced that the goal of adopting the ABS protocol in
They reminded delegates that "while there will be some time available for ABS during COP10, there are many other issues on the COP agenda. Furthermore, solely in the context of ABS, there are many other undone tasks (e.g., the draft decision, interim arrangements, work programme, budget, strategic plan) that must be completed and considered by the COP". The basis of the ING work in Co-chair Hodges emphasized that while the pace
of negotiations will speed up, the exception was the issue of "pathogens"
where delegates were allowed to have an exchange of views aimed at a
better understanding of the negotiation positions. (This is one of the
most contentious issues in the negotiations so far, with several developed
countries such as After some time given for informal consultations among the various delegations, an open-ended (open to accredited observers) small group met on "pathogens" in the afternoon of 13 October and this was chaired by Namibia and Australia who later reported back to the ING at 6 pm. A night session that went on until 9 pm then addressed text on "utilisation" of genetic resources (Articles 2 and specific references in 4, 5, and 12 of the draft Protocol text), as well as on compliance (Articles 12, 13, 13bis, 14, and 14bis). The other central issues to be negotiated in the following two days include: traditional knowledge (Articles 5bis and 9, and specific references in 4, 5, and 14); benefit-sharing (Article 4); access (Article 5); institutional arrangements relating to the COP serving as the Meeting of Parties to the ABS Protocol (Article 20); Scope and relationship with other instruments (Articles 3, 3bis, and 6); Use of Terms (Article 2); and the Preamble. PATHOGENS DEBATE TO MOVE INTO NEGOTIATIONS MODE The co-chairs of the small group summarized the afternoon's discussions to the ING, indicating the following points: * The issue being addressed here (in Article 6 concerning pathogens) is how to reconcile an environmental agreement (the CBD) and its relationship with health policy and other international arrangements in plant and animal health; * There is need for clarity on what kinds of pathogens we are talking about here and whether they should be included or excluded in this Protocol; * There is need to clarify which genetic resources should be covered by this Protocol, including the circumstances in which these genetic resources are accessed and how benefit-sharing works under these circumstances; * There is also the need to clarify how other specialized instruments can be appropriately described in this Protocol; * There are also some technical issues that need to be addressed, on what are emergencies or non-emergencies, including the coverage of what kinds of pathogens we are dealing with here, whether they are of the human, animal or plant type. The small group co-chair Sem Shikongo of The four textual approaches that are contained in the current draft Protocol text include the following: * The ABS Working Group co-chair's proposal in
the " Article 6 In the development and implementation of their national legislation on access and benefit-sharing, Parties shall: ... [(b) [Pay due regard to emergency situations including serious threats to public health, food security or biological diversity, according to national legislation; ] * The EU proposal tabled in the resumed 9th meeting
of the ABS Working Group on 10-16 July 2010 in Article 6 In the development and implementation of their national legislation on access and benefit-sharing, Parties shall: ... [(b) ... [Provide immediate access to [pathogens][genetic resources] falling also under the scope of relevant international organizations and conventions, such as the World Health Organization, the International Plant Protection Convention, or the World Animal Health Organization, and which are of particular public concern for the health of humans, animals or plants, in ways and for uses provided for in existing and future rules, procedures or practices on the sharing of pathogens and related benefits established under those international organizations and conventions[, taking into consideration [the legal, structural and/or administrative obstacles to the optimal implementation of] the World Trade Organization paragraph 6 system]];] * * Article 3bis [1. The provisions of this Protocol shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biodiversity. This paragraph is not intended to [create a hierarchy between this][subordinate the] Protocol [and][to] other international instruments.] 2. Nothing in this Protocol shall prevent the Parties from developing and implementing other relevant international agreements, including other specialized access and benefit sharing agreements, provided that they are supportive of and do not run counter to the objectives of the Convention and this Protocol. 3. This Protocol and other international instruments relevant to this Protocol shall be implemented in a mutually supportive manner, [[without prejudice to][bearing in mind] ongoing work or practices under relevant international organizations and conventions.] 4. This Protocol is the instrument for the implementation of the access and benefit sharing provisions of the Convention. Where a specialised international access and benefit sharing instrument applies that is consistent with, and does not run counter to, the objectives of the Convention and of this Protocol, this Protocol does not apply for the Contracting Party or Parties to the specialised instrument in respect of the specific genetic resource covered by and for the purpose of the specialized instrument. Developing countries maintain that the Protocol should have a comprehensive scope and that provisions on the relationship between the Protocol and other instruments can provide solutions to the concerns raised by developed countries. (Observers at the negotiations point to the interests of the pharmaceutical industry of developed countries that play a clear role in shaping the position of the developed country Parties.) "UTILIZATION" AND "DERIVATIVES" OF GENETIC RESOURCES The ING then moved on in the night session to negotiate on and resolve the issue of "utilization", reviewing the various provisions of the draft ABS Protocol where it appears, including the decision on what to do with "derivatives". These have been contentious too over the years with developed countries seeking to narrow the scope to genetic resources only (arguing also that there is no consensus on what is a derivative). On the other hand, developing countries insist that derivatives must be included for otherwise the Protocol would be emptied of meaning and fail to meet the CBD third objective of fair and equitable sharing arising from the utilization of genetic resources. It was thus agreed that a solution lies in reaching agreement on the term "utilization of genetic resources". Article 15(7) of the CBD obliges sharing of the "results of research and development and the benefits arising from the commercial and other utilization of genetic resources". The Africa Group and the Group of Latin American and Caribbean Countries (GRULAC) continue to maintain that "derivatives" still need to be included for legal clarity. The current draft Protocol text reads as follows: Article 2 (on Use of Terms) ... [(b) "Utilization of genetic resources" means to conduct research and development on the genetic and biochemical composition of genetic material/biological resources/genetic resources, including through the application of biotechnology as defined in Article 2 of the Convention. "Derivative" means a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if they do not contain functional units of heredity. ...] The ING co-chair Hodges said that progress had
been made in The EU said it was glad to report that it can work on the basis of the draft Protocol text, with some minor changes, also in light of emerging agreements on other Articles. After this short round of discussions, the work was taken to a small group that met until 9 pm. By the day's end, there was tentative agreement
to remove the brackets on the definition of "utilization"
and "derivatives". However, The same thing happened in Article 4 on the "Fair and Equitable Sharing of Benefits", where brackets were maintained, though in the pending Article 5bis relating to traditional knowledge, the brackets on utilization were removed. In Article 5 on "Access to Genetic Resources", brackets were removed on utilization. In paragraph 4 dealing with what kind of information needs to be relayed to the ABS clearing-house mechanism, there was argument over whether "derivatives" needs to be retained. GRULAC through On the other hand, the EU, Canada and Switzerland insisted that given the agreement to retain "utilization" in various parts of the Protocol, the word "derivative" should go (from the substantive provisions on access and benefit-sharing), only to remain in Article 2 on Use of Terms. The Central and Eastern European countries also support its inclusion in the Use of Terms. The ING decided not to resolve this for the meantime and moved on to Article 7 on "Contribution to Conservation and Sustainable Use", where the brackets on "utilization" were removed. Further consideration on whether brackets on utilization will be removed including the decision on whether derivatives will be deleted were withheld for the meantime when discussion moved to the provisions on Compliance in Articles 12, 13 and 14 including in Article 18ter on "Non-Parties". COMPLIANCE MEASURES The other crucial issue that was discussed on 13 October night related to compliance provisions in Article 13 on "Monitoring and Tracking of Genetic Resources". The ING co-chair Casas said that Parties, in order to monitor compliance, need to establish check-points, focus on identification and check-points and that this is the essence of paragraph 1(a), while paragraphs 3 and 4 contained details of an internationally recognised certificate of compliance. Casas proposed a simplification of the heavily bracketed text in the chapeau (opening part) of Article 13(1) in this manner: "Parties shall take measures to monitor the utilization of genetic resources to support compliance. Such measures shall include: ..." This would replace the following: Article 13 1. Parties shall take measures, as appropriate, to monitor[, track and report] the [utilization] of genetic resources[, its derivatives and associated traditional knowledge] to support, inter alia, [the requirement to obtain prior informed consent and mutually agreed terms][compliance [with prior informed consent requirements and mutually agreed terms][with domestic access and benefit-sharing legislation and regulatory requirements] [to support implementation] [under Article 12(1)] [in order to enhance transparency [and build trust between providers and users]]]. Such measures [could][shall] include: ... In response to the co-chairs' proposed text of one line, India wanted further specification on what kind of compliance needs to be supported and suggested that it should be compliance with PIC ("prior informed consent" regarding access) and MAT ("mutually agreed terms" regarding benefit-sharing). The EU insisted that the purpose of supporting compliance is to "enhance transparency". [This would allow Parties to choose monitoring measures from the lists in Article 13(1) rather than take mandatory measures.] The Africa Group said it needs the Protocol to create incentives for conservation and sustainable use; it needs a minimum agreement of a compliance system that will work. It said that it has to be a "shall" (mandatory); this is the main legal obligation and "we need legal certainty for all people involved and a level playing field; we cannot accept as appropriate'". The Group stressed that all the progress in other parts is 100% dependent on the compliance system, and "if we do not move on compliance we are going round and round in circles". The EU said it has agreed on clear user obligations in Article 12 (on "Compliance with Domestic Legislation or Regulatory Requirements on Access and Benefit-Sharing). It said however that how to do it needs national flexibility, and referred to European stakeholder meetings, including 16 sectors, that showed that it needs to choose the most effective measures. New Zealand said it made a strong commitment in Article 12 but it needs flexibility in the how, reiterating its strong commitment to the international ABS regime. The EU responded that they have already made concessions in Article 12 and Article 13 is a different matter altogether. Co-chair Casas nevertheless appealed to the delegates to consider the simple formulation proposed by the co-chairs. The ING adjourned for the night, and will resume meeting at 9am on Thursday (14 October).
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