Anti-biopiracy accord negotiations to resume in September

With the core issues still unresolved, negotiations on a new international treaty to prevent biopiracy are to resume for another week in September in Montreal, Canada.

Chee Yoke Ling

THE 193 country Parties to the Convention on Biological Diversity (CBD) have mandated the Ad Hoc Open-ended Working Group on Access and Benefit-Sharing (ABS) to finalise the ABS Protocol under the CBD in time for adoption when the Parties convene their biennial meeting in October in Nagoya, Japan.

The Working Group was to have completed its work at its ninth meeting in Cali, Colombia (22-28 March) but continuing deep divisions delayed negotiations and the meeting was suspended. It was only at the resumed session in Montreal (10-16 July) that actual negotiations finally began after years of debate with most developed countries reluctant to have a legally binding treaty on ABS. Parties unanimously agreed that the basis of the negotiations would be the streamlined 16-page draft Protocol prepared, with the consent of Parties in Cali, by the Working Group Co-Chairs Tim Hodges of Canada and Fernando Casas of Colombia.

The Working Group established the Interregional Negotiating Group (ING) at its opening plenary session on 10 July for this purpose. The ING 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) Presidents of the CBD Conference of the Parties.

Three out of 32 Articles of the draft Protocol were agreed to by the end of the Montreal meeting. These relate to the Objective of the Protocol; Contribution to Conservation and Sustainable Use; and Transboundary Cooperation. However, as consensus on the substantive core of the draft Protocol is still elusive, the talks are scheduled to resume for another week from 18-21 September in Montreal.

The significant progress made in the July meeting was that there is now a text of a draft Protocol that is 'owned' by the CBD Parties and for which they are responsible, after almost five years of the Working Group's work and before that another 10 years of discussion culminating in a mandate to develop an 'international regime on ABS'.

While further 'understanding' was reached on the core of the Protocol dealing with the substantive issues of benefit-sharing, access and compliance, it was also clear that almost all developed-country Parties (except Norway) seek to have a Protocol with generally 'soft' obligations. Thus, for example, in the negotiations on benefit-sharing with countries providing genetic resources (in particular, countries of origin), on traditional knowledge associated with genetic resources and the rights of indigenous and local communities, on compliance with national ABS laws of provider countries, and on transboundary monitoring, tracking and reporting of potential biopiracy, words such as 'endeavour to', 'with the aim to', 'where appropriate' and 'where applicable' were liberally inserted into the various Articles.

The International Indigenous Forum on Biodiversity that is an active part of the ABS Protocol process expressed deep disappointment throughout the week, that a number of important provisions in the draft text related to the rights of indigenous peoples that had undergone extensive negotiations in Cali were rapidly diluted at the Montreal meeting.

Contested scope: relationship with other instruments and 'derivatives' of genetic resources

The scope of the Protocol emerged as a central contentious issue, with many developed-country Parties seeking to exclude crucial sectors from the application of the Protocol or to effectively subordinate the Protocol to other international instruments and processes. Almost all developed countries preferred to prioritise intellectual property rights (IPRs) obligations while developing countries pointed to the CBD's own provision (Article 16.5) calling for IPRs to be 'supportive of, and not run counter to the CBD objectives'.

The temporal scope of the Protocol (i.e., whether benefits from the use of genetic resources acquired before the entry into force of the Protocol should be included, especially those in ex situ gene banks and botanical gardens in developed countries) and the geographical scope (i.e., developed countries object to benefit-sharing coverage with regard to areas beyond national jurisdiction such as the Antarctica area) are also unresolved issues.

The issue of pathogens was heatedly debated in Montreal, with the European Union (EU) being the most vociferous in arguing that the World Health Organisation (WHO) is the appropriate forum for ABS related to pathogens of human health interest and that 'immediate access' should be given for such genetic resources.

During that debate, Malaysia (on behalf of the Like Minded Asia Pacific Group) and New Zealand both said that they found the EU proposal 'startling' as its call for immediate access applied regardless of whether there was an emergency situation. The EU proposal also covers plant and animal pathogens.

South Africa (on behalf of the Africa Group) questioned the basis upon which health pandemics are assessed, emphasising how African countries had no access to the relevant vaccines when the recent H1N1 ('swine') influenza pandemic was declared by WHO. Benefit-sharing according to the CBD objectives and principles was therefore crucial.

Australia has inserted text to explicitly exclude human pathogens from the scope of the Protocol.

Against the backdrop of the ongoing debate, a small group in Montreal produced the following 'relationship provision' which centres on the relationship of the Protocol with other international instruments and agreements, with consensus on most parts except for those with brackets to indicate the areas with no consensus:

'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 subordinate the Protocol 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 access and benefit-sharing provisions of the Convention. Where a specialized 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 specialized instrument in respect of the specific genetic resource covered by and for the purpose of the specialized instrument.'

Related to scope is the issue of 'derivatives' of genetic resources. All along, most developed-country Parties and their industries have argued against inclusion of derivatives for the purposes of ensuring compliance with benefit-sharing terms and prior informed consent. They prefer that benefit-sharing of derivatives be dealt with in bilateral contracts ('mutually agreed terms' as stated in the CBD) between users and providers, without the government having an important role.

Some developed countries lack political commitment

With only seven days left, Parties at the Montreal meeting were under pressure to make significant progress although there was widespread concern that a fully agreed text would not be possible, as it was evident from the start that some developed countries' negotiators did not have authority from their government to make the compromises necessary for consensus.

Japan, as the next President of the Conference of the Parties (COP) to the CBD and host to the next COP meeting, showed a shift in some of its positions assuming a bridging role. It also provided the funds for the resumed negotiations in Montreal.

In an unexpected move, during the first reading of the draft Articles on institutional issues of the Protocol, the EU proposed that there was no need to establish a separate governance structure for the ABS Protocol. It said that implementation of the Protocol can be included as an item in the agenda and work programme of the CBD's COP. The usual practice is that the COP of a main treaty acts as the 'Meeting of the Parties' (MOP) of a Protocol that has been developed under that treaty and the MOP is legally separate and distinctive.

The EU argued that ABS is an issue that is addressed by the CBD as well and therefore the CBD COP can address all ABS issues in the same forum.

This proposal provoked strong reactions from developing countries, with the various groups' spokespersons presenting counter-arguments to the EU proposal. They argued that if the Protocol were to be subsumed into another item in a CBD COP agenda, it would not result in the effective implementation of the benefit-sharing objective of the CBD.

Unlocking the impasse: the 'ABC' of ABS

The core issues of the Protocol had been identified earlier in Cali by the Co-Chairs, that they called 'the ABC of ABS', i.e., access, benefit-sharing and compliance. The ING focused on these issues in the first part of the week's negotiations.

In explaining the 'rules of engagement' at the opening plenary, Co-Chair Casas 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'. He stressed that Parties should try to accommodate each other's concerns while ensuring their own interests were reflected in a balanced manner, bearing in mind that the Protocol is to implement the CBD's third objective of fair and equitable benefit-sharing.

The ING went through the substantive parts of the draft text contained in Articles 1-19 by 12 July, except for Article 2 (Use of Terms) that will be left till the end of the process. These Articles include provisions dealing with: Objective, Scope, Fair and Equitable Benefit-Sharing, Access to Genetic Resources, Access to Traditional Knowledge Associated with Genetic Resources, Considerations relevant to Research and Emergency Situations, Transboundary Cooperation, Compliance with National ABS Legislation, Monitoring, Tracking and Reporting the Utilisation of Genetic Resources, Non-Compliance with Mandatory Disclosure Requirements, Compliance with Mutually Agreed Terms, International ABS Ombudsperson, Model Contractual Clauses, Codes of Conduct, Guidelines and Best Practice Standards, Awareness Building, Capacity, Technology Transfer and Cooperation, Non-Parties and Financial Mechanism and Resources.

A second reading of the bulk of the revised draft of these Articles was conducted after the plenary held on 13 July to assess progress. The Co-Chairs assigned small groups of key negotiators from the various Parties' groupings with specific issues to resolve, and these informal meetings were open to other interested Parties.

The text of two clusters of issues was given to two small groups to try to arrive at a consensus: (i) the relationship between the Protocol and other instruments (resolving this would hopefully deal with the list of exclusions and reservations currently in the Article on Scope); and (ii) institutional and final clauses.

Another small group was tasked with trying to reach a common understanding of 'derivatives' and the concept of utilisation of genetic resources in the context of benefit-sharing. This group facilitated by Canada produced a paragraph on 'any utilisation of genetic resources' without agreement on some parts of the final wording. This text was not formally presented to the ING. Determined not to lose the progress made on reaching a significant level of understanding, Peru (on behalf of the Group of Latin American and Caribbean Countries - GRULAC) at the ING meeting on 15 July insisted that the text be inserted in Article 4.2 on benefit-sharing. This was supported by the Like Minded Asia Pacific Group.

The Co-Chairs then reconvened this small group (this time under the facilitation of Switzerland) and at the closing plenary of the Working Group an agreed solution was presented whereby the paragraph was removed from the Article and placed as a footnote with explanation. In this way the work done in reaching a degree of common understanding of 'any utilisation of genetic resources' was formally captured.

(Article 15.7 of the CBD obliges Parties to take legislative, administrative or policy measures, as appropriate, with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilisation of genetic resources with the Party providing such resources. 'Commercial and other utilisation' is interpreted by developing countries to mean 'any utilisation'.)

The agreed footnote reads as follows:

'The following language is the outcome of discussion by a small group set up by the ING to explore a common understanding on what constitutes "utilization of genetic resources/derivatives" as they appear in the draft Protocol. The small group also recognized that the potential use and placement of this language will depend on its context within the draft Protocol. The language is to provide an input for the negotiation of the Protocol.

"utilization of genetic resources" includes/means the conduct of research and development, on the genetic and biochemical makeup/composition of genetic material/biological resources, including through the application of biotechnology as defined in Article 2 of the Convention on Biological Diversity, as well as subsequent applications and commercialization.'

Yet another small group was tasked to deal with the inter-linkages among the Protocol provisions that the Co-Chairs said are the 'core of the core' that will unlock the other provisions of the draft Protocol. This met on the night of 15 July and on 16 July until the closing plenary of the Working Group in the afternoon. It identified three issues that, to all Parties in the room, would be the key for consensus to be achieved.

The ING also conducted a first reading of the preamble, with Parties adding numerous paragraphs to safeguard their respective positions on a range of issues that still remained contentious in the main body of the draft Protocol. Most of them relate to the relationship of the Protocol with other international instruments. A simple list of preambular paragraphs that was a little more than a page in the original Co-Chairs' draft has been expanded to more than three pages. Negotiations on these will be in the next resumed session in September.

A first reading was also made of the Articles dealing with institutional issues and the usual treaty-establishing provisions (Articles 20 to 31).

The three agreed Articles

The Montreal meeting agreed in full to the following:

Article 1 on Objective: '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.'

Article 7 on Contribution to Conservation and Sustainable Use: 'Parties shall encourage users and providers to direct benefits arising from the utilization of genetic resources towards the conservation and sustainable use of biodiversity in support of the CBD objectives.'

Article 8 on Transboundary Cooperation, paragraph 1: 'In instances where the same genetic resources are found in situ within the territory of more than one Party, those Parties shall endeavor to cooperate, as appropriate, with the involvement of indigenous and local communities concerned, where applicable, with a view to implementing this Protocol.'

The same provision is made in paragraph 2 for traditional knowledge associated with genetic resources that is shared by one or more indigenous and local communities in several countries.

Rocky road still ahead

However, the EU, Australia and Canada, in particular, have put in text that has significantly weakened the original Co-Chairs' draft that was considered by many to be quite balanced.

Late on 12 July night, after an extensive rewriting by the EU of the compliance provisions, the groupings of Asia Pacific, African and Latin American and Caribbean countries complained in exasperation. The Co-Chairs were also visibly frustrated because the result was a text that had lost the original balance with many points of disagreement.

At the plenary session held on 13 July for negotiators to conduct a 'self-assessment' on the status of their work, the Co-Chairs told negotiators that they had made 'considerable real progress' but they still had a way to go. Hodges said, 'Finalising the Protocol is within your grasp. But the time is passing. We need to finish by Friday [16 July].'

The Namibian delegate speaking for the Africa Group expressed strong frustration during the assessment discussion. He said Africa has always called for a comprehensive Protocol that will leave no loopholes and that does not satisfy special and vested interests. He said that the 2010 target to halt the decline of biodiversity loss has failed miserably, and biodiversity's contribution to poverty reduction remains a dream. He warned that if the right thing is not done there will be no biodiversity left, and that putting the interest of intellectual property rights above the interest of biodiversity will be unforgivable.

Although African ministers have given their negotiators a political mandate to obtain a strong Protocol, in the spirit of reaching an agreement 'we have compromised and compromised but we do not see any from our partners - we have provided bridges but our partners are not crossing these bridges'.

The representative of Japan said some of the issues for the Working Group are very difficult. He especially acknowledged the concerns of the Africa Group and said that it was the domestic political situation and not the negotiators themselves (from developed countries) that was making the ongoing negotiations difficult in some issues.

Many Parties and observers are concerned that Canada has emerged as an obstacle to a strong Protocol. In the Montreal closing plenary, Canada expressed satisfaction with the results of the resumed session and requested reflecting in the Protocol (in a footnote) the following observations: (i) the draft Protocol is no longer a Co-Chairs' text, but a text negotiated by Parties; (ii) there is balance in the draft; and (iii) nothing is agreed until everything is agreed.

Including this in the draft Protocol text would have been a strong negative signal on the prospect of a Protocol to be finalised and adopted in October. When the plenary hall clearly sent signals of objection to such a footnote, Canada requested that these observations be included in the report of the meeting.

In the same plenary Malaysia proposed another resumed meeting, in order to fulfil the mandate of the Working Group to finalise the draft ABS Protocol. Thailand was suggested and the delegation of Thailand said it would confirm in the coming days its country's offer to host the additional days of negotiation. (Since then, no formal offer has been made by any country to host the resumed meeting and so it will be held in Montreal, the location of the CBD Secretariat.)

The Philippines spoke on behalf of the 14 small-island developing states of the Asia-Pacific, in the interest of countries without ABS legislation, that their concerns be reflected in the text of the Protocol according to what the Philippines had formulated from way back in Cali.

Co-Chair Hodges assured the delegation that this request will be reflected in the report of the meeting.

The Co-Chairs promised to work with the Executive Secretary of the CBD to find the necessary resources in order to fund the meeting and maintain its inclusiveness, meaning that as many countries as possible should be funded to be able to attend the meeting, notwithstanding the fact that the actual negotiations are done by a limited number of countries sitting in the Interregional Negotiating Group.

Japan expressed its commitment to contribute to such resources, and has now confirmed its support. The July meeting was also made possible by Japan's financial contribution, with travel support from a few other donors. Japan urged other donor countries to make further contributions to ensure that the September meeting will be held.

Africa expressed its concern that the delegates coming to the further resumed ninth meeting of the Working Group will have done the necessary consultations and possess the necessary political mandate to finalise the negotiations and that not more than 10 minutes would be necessary to adopt the Protocol in Nagoya in October.                                       

Chee Yoke Ling is Director of Programmes at the Third World Network. An earlier version of the above article was published in the South-North Development Monitor (SUNS, No. 6970, 21 July 2010).

*Third World Resurgence No. 238/239, June-July 2010, pp 4-7