Hope for an anti-biopiracy treaty in 2010

Prospects seem encouraging for a new international agreement to prevent biopiracy and to ensure fair and equitable benefit sharing from the use of biological resources and associated traditional knowledge. October 2010 is the target for this agreement to be adopted by governments that are Parties to the United Nations Convention on Biological Diversity (CBD), when the governments gather in Nagoya, Japan for the biennial Conference of the Parties.

By CHEE YOKE LING 

Issue No. 231/232 (Nov/Dec 2009)

DEVELOPING countries hold most of the planet's biodiversity and their indigenous peoples and local communities hold, nurture and use a wealth of traditional knowledge related to biodiversity. Governments and many organisations representing indigenous peoples' rights want a legally binding agreement to correct injustices and stop the misappropriation (commonly called 'biopiracy') of those biological resources and associated traditional knowledge.

Negotiations finally took off in 2005 with the CBD's Ad Hoc Open-ended Working Group on Access and Benefit-sharing (ABS Working Group) tasked to negotiate an 'international regime on access and benefit sharing'. This came after years of insistence by developing countries because of the continued lack of implementation of the CBD's third objective, i.e. the fair and equitable sharing of benefits arising from the use of biological resources (see Box 1). On the contrary, concerns over biopiracy have grown since the CBD entered into force in 1994 (see Box 2 and related articles on potential biopiracy cases in this issue of TWR).  

Developing countries argue that regardless of the strength of their national ABS laws, once biological material and associated knowledge leave their countries and are used (from research to commercialisation) in other countries, they face daunting obstacles in enforcing their rights. In reality most countries still do not have national laws, rendering them even more vulnerable to biopiracy. 

If a Protocol on Access and Benefit Sharing does finally materialise, this would be the culmination of almost 15 years of persistent demands by developing countries, in the face of years of strong resistance and even rejection by most developed countries and big business interests such as the pharmaceutical and biotechnology industries.   

Optimism sparked when there was a discernible shift in the momentum towards a possible Protocol when CBD Parties in the ABS Working Group ended a week's meeting (9-15 November 2009) in Montreal with one consolidated text that will be negotiated and hopefully finalised in March 2010 in Cartagena, Colombia before the result is sent on to the 10th meeting of the Conference of the Parties (COP) in Nagoya.  

There was a growing sense of urgency in Montreal as there will be only one more week of formal negotiations in March 2010 before the COP meets later in October to formally adopt the agreement. Though there is still no agreement on practically all the key components, there is one single document now that contains the makings of an agreement. There is no full agreement on whether it will be one legally binding international agreement but more developed countries signalled a willingness to have a Protocol when they met in Montreal. (A Protocol is a legally binding agreement, usually adopted as a separate agreement under a broader 'parent' international treaty, in this case the CBD.) 

The Co-Chairs of the negotiating process Fernando Casas (Colombia) and Tim Hodges (Canada) in a joint statement at the closing plenary session said that there was a 'preponderant understanding' in the Working Group that the 'negotiations of the international regime aim at finalising a draft protocol under the CBD'. 

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).  

It was thus noteworthy that Japan, initially among the most resistant, said in the closing plenary session that it was 'very supportive of the Co-Chairs' assessment of the preponderance of views' in the Working Group. The head of delegation, Masayoshi Mizuno, said that, 'This Working Group will continuously and relentlessly aim to adopt a protocol in Japan.'  (Japan will host the COP meeting that is scheduled to adopt the final outcome of the negotiations, and many hope that the new government will adopt a more progressive position on a 'Nagoya Protocol'.) 

He also clarified his statement at the opening plenary (9 November) on this item, where he said Japan would not exclude a legally binding regime and that the nature would be determined after discussions on the substance. Pending that discussion Japan was not in a position to accept a legally binding international regime 'at this stage', indicating that it was prepared to do so under certain conditions. 

Most delegates at the meeting regarded this as a significant shift in Japan's position.  

Determination of developing countries  

The Group of Like-Minded Megadiverse Countries (LMMC), with members from Africa, Asia and Latin America and currently chaired by Brazil, and the African Group have been providing significant impetus to the negotiations. In Montreal another new grouping was announced by Malaysia - the Like-Minded Asia Pacific Group (that also consists of LMMC members from Asia) - and this is expected to provide further momentum for the completion of the new agreement.  

(The LMMC members are Bolivia, Brazil, China, Colombia, Costa Rica, Democratic Republic of Congo, Ecuador, India, Indonesia, Kenya, Madagascar, Malaysia, Mexico, Nepal, Peru, Philippines, South Africa and Venezuela. Formed in February 2002, the Group played a central role in getting developing countries as a bloc to push for a decision of heads of state and government at the August 2002 World Summit on Sustainable Development that started the process to negotiate an international regime on benefit sharing - see Box 1.) 

After six meetings the Working Group was, by the close of the Montreal session, able to arrive at a 57-page draft of the international regime that contains the consolidated proposals and options submitted by Parties over the past year.  The final round of negotiations will be from 22 to 28 March 2010 in Cartagena. 

The 'package' to be negotiated 

At the Montreal meeting, the Working Group adopted the following package: (i) the report of the meeting; (ii) Annex I to the report, i.e. a consolidated draft of the International Regime on Access and Benefit Sharing to be called the 'Montreal Annex'; and (iii) Annex II to the report, 'Proposals for operational texts left in abeyance for consideration at the next meeting of the Working Group'.  The two Annexes form an integral part of the report and will go to the next and last meeting of the Working Group in Cartagena next March.  

There are five main components in the Montreal Annex: (i) fair and equitable benefit sharing; (ii) access to genetic resources; (iii) compliance; (iv) traditional knowledge associated with genetic resources; and (v) capacity building. In addition there is a section on Objective and another on Scope. 

Work to produce one streamlined and consolidated document with options in several key issues and brackets around words and paragraphs (signifying divergent positions and lack of agreement), from a set of collated proposals submitted by Parties and observers, had started at the seventh meeting of the Working Group (2-8 April) in Paris. That meeting focused on compliance, fair and equitable benefit sharing, and access.  

The Paris meeting also consolidated text on the objective and scope of the international regime, issues that remain contentious as seen from the numerous brackets and divergent options.  Developing countries want a comprehensive scope that covers all biological resources, derivatives and products.  On the other hand, developed countries in varying degrees seek to have a narrower scope by referring to genetic resources and not biological resources, with many not accepting derivatives or products. The European Union wants to exclude 'specific uses of pathogens', regarded by some as reflecting the interests of the pharmaceutical sector.  These two topics were not further discussed in Montreal and will be negotiated in Cartagena.

At the Montreal meeting Parties could add new text to the three main components in the Paris Annex.  

There was considerable disagreement and discussion over how to deal with preambular paragraphs and principles, definitions, and institutional and implementing provisions and final clauses that would complete the international regime text. These are now part of Annex II of the Montreal report. Participants and observers can submit new text for these topics at least 60 days before the March 2010 Working Group meeting. 

The Co-Chairs ruled that no new submissions would be allowed for the five main components as 'the door had to be closed' for the finalisation of the international regime in Cartagena. However, Co-Chair Hodges said that text that could assist in achieving consensus on the existing text would be welcomed. 

Not surprisingly, the discussions on compliance were among the most difficult, as this component is widely acknowledged as central to the effectiveness of a legally binding instrument or protocol. Of the 57 pages, more than 30 were on compliance, containing the most brackets and featuring a wide range of options.  

Key issues that will need to be resolved include the use of an internationally recognised certificate to track and monitor genetic/biological resources; derivatives and products; disclosure requirements in patent applications (of prior informed consent and compliance with domestic laws in the country of origin or country providing the resource); the types of checkpoints for this tracking (e.g. patent offices and research funding agencies); access to justice to enforce ABS arrangements; tools to ensure compliance; codes of conduct; etc. 

The Montreal meeting moved surprisingly quickly after a slow start, to streamline and consolidate text on the other two main components: traditional knowledge associated with genetic resources, and capacity building.  

Considerable progress was made in the consolidation of the component on traditional knowledge associated with genetic resources. The previous week's negotiations in the Article 8(j) Working Group (2-6 November) (see Box 1) had been quite successful and contributed to the relatively smooth consolidation of the text in the international regime. 

The African Group took an active role with the cooperation of the International Indigenous Forum on Biodiversity (representatives of indigenous peoples' organisations) to reduce the amount of text without losing the substance. The high degree of direct participation by the indigenous peoples' groups in the ABS negotiations is unique among all environmental treaties (see Box 1).  

Most brackets were removed and according to the Contact Group co-chair Damaso Luna (Mexico), most of the remaining brackets would likely be removed when the scope of the regime was decided.  For example, there is no agreement yet on whether derivatives and products of genetic resources/biological resources should be included, so all such references are bracketed.   Many developing countries prefer the term 'biological resources' while developed countries want to maintain the narrower term 'genetic resources', so these are bracketed.  Also, where references to 'prior informed consent' are found in several provisions, Canada has proposed the addition of 'or approval and involvement', giving rise to many more brackets. 

A matter of concern for developing countries is the attempt of most developed countries to shift matters related to traditional knowledge to the World Intellectual Property Organisation (WIPO).  The recently renewed mandate of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore was not to prejudge or prejudice the work on the international regime on ABS under the CBD (see related article on the WIPO Intergovernmental Committee in this issue).  Thus the LMMC, Group of Latin American and Caribbean countries (GRULAC) and the Like-Minded Asia Pacific Group in Montreal objected to diluting or even removing the substantive links between traditional knowledge and ABS in the international regime. 

Legally binding or voluntary? 

The issue of the nature (legally binding or voluntary or a combination of both) of the international regime was formally addressed in the opening plenary session of the Montreal meeting.  The Working Group Co-Chairs Casas and Hodges then conducted consultations with the governmental regional groups as well as the International Indigenous Forum on Biodiversity and civil society organisations at the meeting on the matter. 

The Co-Chairs presented their 'reflection'  on  the  nature  of  the international regime at the closing plenary session and read the following statement on the delicate issue of nature: 

'Having reflected on the statements made in plenary on this item and having discussed the matter with all regions and with a range of representatives of indigenous and local communities and with stakeholders, it is the Co-Chairs' view that the Working Group shares the preponderant understanding that, for the purposes of completing its mandate at the earliest possible time and subject to agreement that the regime would include inter alia one or more legally binding provisions, negotiations of the international regime aim at finalising a draft protocol under the CBD.  The Co-Chairs confirm that this view is without prejudice to a decision by the Conference of the Parties at its tenth meeting on adoption of such a protocol.  

'For the record, the Co-Chairs confirmed that this view in no way alters the COP9 decision or alters the positions of delegations on this matter as expressed on Monday in plenary.' 

This will form part of the meeting's report and it is expected that informal consultations led by the Co-Chairs will be continued into the Cartagena Working Group session next March in order to reach a conclusion on the issue of the nature of the agreement. 

Inter-sessional work 

Given that the formal negotiations on the Montreal Annex will only take place next March, and the document contains 57 pages with thousands of brackets, the Working Group agreed to hold two informal inter-sessional meetings before it re-convenes in Cartagena.  

The Co-Chairs presented the outline of the inter-sessional work on 14 November, following informal discussions with Parties over the week. There will be two distinct meetings. The first will be a 3- to 5-day meeting of 'Friends of the Co-Chairs' in late January or early February 2010 that Canada offered to host. 

('Friends of the Chair' is a United Nations practice whereby, in cases where the views and positions of countries are diverse and divergent, the chair of a negotiation group may select a much smaller group of negotiators who have been active, to informally meet for discussions or negotiations. The aim is to facilitate more in-depth and frank exchanges so that there can be a better understanding of positions and solutions sought to arrive at a consensus when formal negotiations resume.) 

This meeting will comprise participants selected by the Co-Chair: (i) 18 representatives from CBD Parties; and (ii) two representatives each from indigenous and local communities, civil society and industry. In addition there will be one representative each from the current and next Presidencies of the COP (i.e. Germany and Japan respectively).  

The purpose of the meeting is to work on defining possible solutions on key issues in the negotiation of the international regime. Key issues for discussion will be provided in advance by the Co-Chairs.  The expected outcome is a report by the Co-Chairs on possible solutions for those key issues.  

The second meeting will be an inter-regional informal consultation to be held prior to the Cartagena meeting of the Working Group composed of: (i) 25 participants designated by Parties from within the five regional groups recognised by the UN (five per region); (ii) 10 observers (advisers) (two per region) could also be present in the meeting at any one time (others can be outside the meeting room and there can be a rotation of advisers as decided by the Parties concerned); (iii) two representatives each from indigenous and local communities, civil society and industry; and (iv) one representative each from the ninth and tenth Presidencies of the COP.

This group will discuss preambular text, definitions and provisions relevant to the consolidation of operative text of the international regime.  It is expected that the outcome of the meeting will facilitate and accelerate the negotiations at the Working Group meeting in Cartagena. 

The group would work on the basis of the report of the meeting of the Friends of the Co-Chairs, the two annexes to the report of the Montreal meeting as well as pre-session documents prepared for the March 2010 meeting of the Working Group. The three-day meeting would be held on 16-18 March, followed by the customary informal consultations between the Co-Chairs and regional groups on 20-21 March, and then by the Working Group meeting itself on 22-28 March. 

Co-Chair Casas said in his closing plenary statement that the way the Working Group has worked to achieve such positive results in Montreal was very inspiring. 'The good spirit and atmosphere fills us with hope that the mandate that this group and Co-Chairs have will play out, and that in Nagoya we have a result that we will be very proud of for the Convention,' he said.   

He emphasised that the process will be always transparent without surprises and they will continue along these lines until the final stretch.  

He added, 'The growing wave and sharing of like-minded vision is so welcome.' 

This was in reference to announcements of the formation of two 'like-minded' groupings. The first was at the opening plenary when Gurdial Singh Nijar of Malaysia announced the creation of the Like-Minded Asia Pacific Group (of developing countries) for the purposes of the negotiations of the international regime. 

The second announcement came in the closing ceremony when New Zealand's delegate introduced the 'Like-Minded in spirit Group of Women' composed of some women delegates at the Working Group meeting seeking gender balance, including from Cameroon, South Africa, Malawi, Lesotho, Mozambique, Thailand, Singapore, Cook Islands, Federated States of Micronesia, Norway, Australia, New Zealand, Austria and the Netherlands.    

Chee Yoke Ling is Director of Programmes at the Third World Network.

*Third World Resurgence No. 231/232, November-December 2009, pp 16-20