TWN Info Service on Intellectual Property Issues (Oct10/09)
27 October 2010
Third World Network

Access and Benefit Sharing Treaty Enters Critical Stage

(An earlier version of this article was first published in SUNS #7027 dated 27 October 2010.)

Nagoya, 26 Oct (Chee Yoke Ling) - With time running out, the pressure increases on negotiators from more than 180 countries that are Party to the Convention on Biological Diversity, to conclude a new treaty on access and benefit sharing related to genetic resources and associated traditional knowledge.

The deep divisions between developing and developed countries over the key issues are now starkly on the table, with a crisis point reached on Monday night (25 October) even as ministers descend upon Nagoya, Japan where the 10th meeting of the Conference of Parties (COP) is being held.

The European Union, after days (and many nights) of negotiations on the compliance provisions of the protocol on access and benefit sharing (ABS), refused to proceed on one of the key components for compliance on Monday night, i.e. checkpoints in user countries to monitor potential biopiracy.

It is agreed now that compliance is at the heart of the protocol that is being forged. Therefore the most time has been allocated for this topic by the co-chairs of the Informal Consultative Group (ICG) set up by the COP last Monday (18 October) to finalize the protocol for adoption by the end of this week. 

A legally binding treaty without an effective compliance system would frustrate the CBD's third objective of fair and equitable sharing of benefits arising from the utilization of genetic resources, and allow biopiracy to continue. The other inter-linked objectives are conservation and sustainable use of biological diversity.

Developing countries have all along proposed a list of mandatory checkpoints that would require mandatory disclosure of specific information by users of genetic resources, their derivatives and associated traditional knowledge. These checkpoints would be the responsibility of user countries. (Developing countries themselves would also have to take similar actions since they are also users, though the majority of them are net providers or countries of origin of those resources and knowledge.) 

On the other hand, developed countries are against a listing of mandatory checkpoints in the protocol, preferring the freedom to choose their own checkpoints. They are against even an indicative list. They are also against any requirement of mandatory disclosure of information. The exception is Norway that accepts a list that includes some mandatory checkpoints and some voluntary ones. Its own national patent law already requires mandatory disclosure of source of genetic resources and associated traditional knowledge and prior informed consent if required in the providing country.

At this point of the negotiations it has been agreed in Article 13.1 of the draft protocol text that, "To support compliance, Parties shall take measures, as appropriate," to monitor the utilization of genetic resources (there is no agreement yet to include derivatives and there is no agreement on what is meant by "utilization" both of which are the subject of continuous work by a small group of Parties).

Article 13.1 then goes on to state the following (with the brackets indicating lack of consensus):

"… Such measures [could][shall] include:

(a) The designation of one or more checkpoints, which would collect or receive, as appropriate, relevant information related to prior informed consent, to the source of the genetic resource[, its derivatives and associated traditional knowledge], to the establishment of mutually agreed terms and/or to the [utilization] of genetic resources, [their derivatives and associated traditional knowledge], as appropriate."

The contested indicative list of designated checkpoints that is in brackets includes: competent national authority in the user country (referring to the authority responsible for ABS); research institutions subject to public funding; entities publishing research results relating to the utilization of genetic resources; intellectual property examination or patent and plant variety offices; authorities providing regulatory or marketing approval of products; and indigenous and local communities, including their relevant competent authorities, that may grant access to traditional knowledge associated with genetic resources.

The ICG set up a small group on compliance, open to Parties, and this has been working for a few days with little progress under the co-chairmanship of Sem Shikongo of Namibia and Alejandro Lago of Spain. On Monday a selected group from that small group of Parties (Africa, Australia, Canada, the EU, India, Malaysia and the Republic of Korea) was assigned to work informally and their discussion focused on the issue of the criteria for checkpoints.

Developing countries want agreed criteria that would ensure that the checkpoints would be effective and would cover the entire value chain from research to product development. They support intellectual property offices as a mandatory checkpoint, given the many cases of patents being granted in developed countries for gene sequences and active ingredients of genetic resources that belong to developing countries, and for products developed from traditional knowledge of indigenous peoples and local communities.

While developed countries finally agreed to engage in text on criteria for effective checkpoints, they maintained their rejection of intellectual property offices as a mandatory checkpoint. India supported by China, Malaysia (on behalf of the Like Minded Asia Pacific Countries) and Peru (on behalf of the Group of Latin American and Caribbean Countries) insisted on this. By late night Monday developed countries, with the exception of the EU, agreed to work on finding a solution to this issue. Raising procedural objections, the EU refused to do so.

The small group co-chairs reported to the ICG late Monday night that the compliance negotiations were in a crisis, to which the ICG co-chair Fernando Casas of Colombia said that "we are not afraid of crisis, we are ready to face the crisis" and that in crisis are opportunities.

Japan's chief negotiator Masayoshi Mizuno said that, "we are in a very close and final stage. If we overcome this very difficult stage we can see the outcome. At this final moment everyone has difficulty crossing the line." Japan reaffirmed its commitment to finalise the protocol. (As the COP President Japan is naturally seeking to have a successful meeting that would yield results, of which the ABS protocol is the political centre piece.)

The ICG then adjourned for informal consultations conducted by Casas and his co-chair Tim Hodges of Canada with Parties on the next steps. A decision was then made to have the compliance small group co-chairs spend today (26 October) on listening to "confessionals" with the key negotiators where negotiators frankly put their bottom line and flexibility on the table.

Meanwhile the plenary of the COP has further extended the deadline for the ICG - the first deadline was last Sunday night and the second was tonight. With the high level segment beginning on Thursday to be attended by 120 ministers and five heads of states, pressures are growing.

However, several developing country negotiators said in the corridors that it is at such a stage of negotiations that great care must be taken to not compromise to the point of making the protocol weak or even empty of real content.

The ICG co-chairs emphasized today that "we do not want an empty protocol" but rather a "coherent, meaningful and implementable" one.

A small group of Parties will work late into the night on the highly contentious and long-drawn issue of the definition of "utilization of genetic resources" and how to deal with "derivatives" which have major implications for the scope of the protocol and hence the scope of benefit sharing. A second small group is working in parallel on outstanding issues related to provisions on traditional knowledge associated with genetic resources, and related to that are the rights of indigenous peoples and local communities.

The "confessionals" on compliance will continue into the night as well with the small group co-chairs Shikongo and Lago mandated to propose a textual solution on mandatory disclosure requirements and checkpoints on Wednesday morning (27 October).+