Info Service on Biodiversity and Traditional Knowledge (July12/02)
5 July 2012
Third World Network
Protocol on Access and Benefit Sharing inches on
New Delhi, 3 July (TWN*) -- Preparatory work for the entry into force
of the Nagoya Protocol on Access to Genetic Resources and the Fair
and Equitable Sharing of Benefits Arising from their Utilisation resumed
on Monday, 2 July.
The Second Meeting of the Open-ended Ad Hoc Intergovernmental Committee
for the Nagoya Protocol (ICNP-2) that is being held in New Delhi on
2-6 July is attended by Parties to the Convention on Biological Diversity
(CBD), the "parent" treaty of the Protocol.
The first day addressed the elaboration of guidance for the financial
mechanism (that will service the Protocol implementation), elaboration
of guidance for resource mobilisation, as well as the need for, and
modalities of a global multilateral benefit-sharing mechanism.
In the opening session, Mr. M. F. Farooqui, Special Secretary at the
Ministry of Environment and Forest of India, said that access and
benefit sharing (ABS) was a missing pillar in the CBD implementation
and negotiations of the Protocol were "sometimes characterised
by extreme and divergent positions". However, he said, the Nagoya
Protocol is important as signalling the viability of multilateral
(The three CBD objectives are biodiversity conservation, sustainable
utilisation of components of biodiversity and the fair and equitable
sharing of benefits arising from such utilisation.)
Mr. Braulio Dias, the new Executive Secretary of the CBD, highlighted
early ratification of the Protocol in his remarks, and informed the
meeting that there are currently 92 signatories and five ratifications
(Gabon, Jordan, Rwanda, Seychelles and Mexico).
(Fifty CBD Parties have to ratify the Protocol for it to enter into
force. Ethiopia subsequently spoke from the floor that it is submitting
its ratification document.)
Mr. Dias said that entry into force is expected between the 11th meeting
of the Conference of Parties (COP11, to be held in Hyderabad, India
in October) and COP12 (in 2014), and that the first meeting of the
COP acting as the Meeting of the Parties of the Protocol will then
be held concurrently with COP12. He also noted that the final document
of the recent United Nations Conference on Sustainable Development
in Rio de Janeiro (Rio+20) supports ratification of the Protocol.
Co-Chairs of the ICNP Fernando Casas of Colombia and Janet Lowe of
New Zealand then presided over the working session which heard opening
statements from various regional groups.
Peru, speaking on behalf of the Group of Latin American and Caribbean
countries (GRULAC), expressed hopes, despite the tough agenda, for
clear and specific recommendations on the agenda items. Given that
lack of ratification is a reality, we need a clear trajectory for
this group (ICNP). It also said that there is need to clarify the
resources necessary for (the first) COP-MOP (the COP acting as the
Meeting of the Parties of the Protocol).
Cameroon, speaking for the Africa Group, expressed high expectations,
stressing that ratification and implementation of the Protocol is
difficult for Africa from which there is over 30% of the signatories.
It said that benefit sharing needs to be with the people who take
care of genetic resources. It said that we need early entry into force,
but Africa will have difficulty accessing the resources needed to
implement the Protocol. Cameroon said Africa was largely left out
of funding by the GEF (Global Environment Facility that is operating
the CBD financial mechanism, and will be doing the same for the Protocol)
and the Nagoya Protocol Implementation Fund. It called for the need
for direction from ICNP-2 to ensure implementation in Africa. It highlighted
the importance of Article 10 on the need for, and modalities of, a
global multilateral benefit-sharing mechanism.
India, speaking on behalf of the Asia-Pacific region, said that without
ratifications there will not be a COP-MOP at Hyderabad. It called
for prioritisation of the work agenda of the Committee considering
the large number of agenda items consisting of six new items and four
items carried over from its first meeting in Montreal, Canada (June
2011). India also said that the regional group is open to another
ICNP meeting, if requested by COP11.
This call by India was echoed by the Like-Minded Mega-diverse Countries
(LMMC) whose current chair, the Philippines, had suggested the prioritisation
of four agenda items in the Committee's deliberations this week, namely,
the modalities of the ABS Clearing-house, the compliance mechanism
of the Protocol, the global multilateral benefit-sharing mechanism,
as well as the guidance to the financial mechanism.
Ukraine, on behalf of Central and Eastern Europe, hoped for quick
entry into force of the Protocol, a focus on capacity building in
economies in transition, and the prioritisation of decisions related
to financing mechanisms.
Guidance to the financial mechanism
On the agenda item concerning guidance to the financial mechanism,
countries such as Senegal, Uganda, Guatemala, Tunisia and Peru called
for the streamlining of the rules for accessing the funds so they
can use it for work towards the ratification of the Protocol.
The meeting under this agenda item also considered the Nagoya Protocol
Implementation Fund set up through the contributions of Japan, Norway,
Switzerland and Spain. Some countries were of the view that this Fund
is not too focused on funding projects that will help lead to the
early ratification of the Protocol but instead delved more on the
implementation of the Protocol with some capacity-building activities
on bio-prospecting, already part of the activities that it will support.
Brazil and Colombia were among those that wanted this to be rectified,
while Malaysia objected to the putting up of an eligibility criteria
for countries to be able to access these funds and suggested also
that part of the activities that should be funded include capacity-building
on monitoring and checkpoints to prevent biopiracy. Malaysia noted
the CBD Article 20 (on financial resources) and said that restricting
access to funds to ratified countries is not constructive, cautioning
against following the model of the Cartagena Protocol on Biosafety.
Norway, however, supported the maintenance of the eligibility criteria
whereby countries getting funds for its capacity-building activities
should make a political commitment towards becoming a Party to the
Protocol, saying that such a criteria was also made during the capacity-building
for the Cartagena Protocol, the other international instrument under
the CBD dealing with the transboundary movement of living modified
Thailand stressed the need for financial support of traditional knowledge
and the funding related to checkpoints and development of compliance
mechanisms. It said that funding should support getting ready for
ratification and also highlighted capacity building on negotiating
MATs (mutually agreed terms), technology transfer, and integrating
business and indigenous and local communities into the process. This
will result in early implementation, it said.
The European Union said we need to adopt a framework on capacity building
before finalising financial recommendations, and to fine-tune recommendations
to the GEF. It wants projects on helping negotiate MATs, adding that
the GEF should talk to both the COP and the COP-MOP.
Resource mobilisation for Protocol implementation
discussion on the agenda item addressing the resource mobilisation
for the implementation of the Protocol, Norway, supported by the EU
and Switzerland, said that ABS agreements that are entered into by
provider countries with users can mobilise funds for this purpose.
The EU also wants Parties to consider resource mobilisation in national
plans. On the other hand, developing countries including Brazil, Senegal
(for the Africa Group), Malaysia, China, India and South Africa emphasised
the need for Article 20 of the Convention to be mentioned in the recommendations
on the agenda item on resource mobilisation.
(Art. 20 of the CBD establishes the basic principles for the financial
resources that will be needed for the operation of the Convention
and obliges developed country Parties to provide new and additional
financial resources to enable developing country Parties to meet the
full incremental costs to them of implementing their obligations under
Brazil said that any new mechanisms would be new and supplemental,
but not replacement of the mechanism under Article 20 of the CBD,
stressing that "we need to be clear on this".
Senegal, on behalf of the Africa Group, supported Brazil. It also
said the (ICNP) recommendations were to be addressed to the COP-MOP,
but since we don't know when that will be, we want the resource mobilisation
recommendations to go to COP11.
Global multilateral benefit-sharing mechanism
The last agenda item taken up for the day was on Article 10 of the
Protocol whereby Parties will consider the need for and the modalities
of the establishment of a global multilateral benefit-sharing mechanism,
referred by the delegations as the GMBSM. Co-Chair Lowe said that
the call for submissions solicited four from governments and one from
the International Chamber of Commerce.
10 reads: "Parties shall consider the need for and modalities
of a global multilateral benefit-sharing mechanism to address the
fair and equitable sharing of benefits derived from the utilisation
of genetic resources and traditional knowledge associated with genetic
resources that occur in transboundary situations or for which it is
not possible to grant or obtain prior informed consent. The benefits
shared by users of genetic resources and traditional knowledge associated
with genetic resources through this mechanism shall be used to support
the conservation of biological diversity and the sustainable use of
its components globally.")
Namibia, on behalf of the Africa Group, said that in general Africa
thinks a more multilateral approach to some outstanding ABS issues
will help resolve those issues. It reminded the meeting that Article
10 was inserted by the COP10 Presidency (Japan) and that the actual
African proposals are still out there somewhere, in a report. It said
that Africa's flexibility on this was a key enabler for the adoption
of the Protocol (at COP10 in Nagoya in 2010), stressing that this
kind of flexibility is important for implementation. On the issue
of process, Namibia said this is not a sequential process; to make
the Protocol implementable, we have to develop a global mechanism
for benefit sharing in parallel.
Reiterating that sustainable use is the only way to achieve conservation
in the long run, Namibia argued that the need for the global mechanism
derives from the CBD itself. In Africa, we've had resources and knowledge
arbitrarily divided by colonial powers, in a conference room in Berlin.
Look at our own (Namibia) border, which cuts right through the San
(indigenous peoples) territory. Practically speaking, we need a multilateral
approach because maybe you could negotiate every agreement but the
transaction costs of that are huge. The CBD was not intended to primarily
benefit the legal profession.
It then related the experience in Namibia where it said we have commercialised
a resource with a European country, on the basis of traditional knowledge,
and is re-exported to South Africa by the European company where it
is used as a cosmetic ingredient. But South Africa wants cosmetic
companies that use the resource to comply with South African access
law. Now, we can work this out bilaterally but this resource is found
in 17 countries. We could work this out with a 17-party agreement,
but wouldn't it be a waste of time and effort? Wouldn't it be better
to have a global mechanism, a global approach? The brackets that disappeared
overnight in Nagoya (referring to the contested parts of the Protocol
up until the final days of the COP10) were key to (the Protocol's)
adoption; we are willing to talk about our position, but it's absolutely
unacceptable to the Africa Group that there's no need for a global
Colombia said that prior informed consent (PIC) is indispensable and
that national sovereignty should be supreme in access. A global mechanism
should be limited to cases where PIC cannot be established. Mexico
said there are cases, mentioned in its submission to the (CBD) Secretariat,
in which you have shared resources, transboundary resources, etc.
It is fundamental that before determining modalities we need to discuss
concrete cases. It generally supports the Secretariat recommendation
for an expert group. We need to define the specific circumstances
under which a global mechanism would operate.
Peru said that this theme comes from a non-negotiated compromise,
so it produces uncomfortable issues that need to be resolved. It agreed
with Mexico that we need to define the circumstances under which a
mechanism would work. We understand that resources are not developed
internationally, but that there are cases where resources cross borders,
or indigenous people in different countries have knowledge. Sovereignty,
however, cannot be renounced and is key in access, it stressed. So,
a multilateral mechanism is for special circumstances. But we need
understanding of what the mechanism is, how it will work, how it will
distribute benefits, and who will decide. So, we support an expert
meeting, but not just to answer questions but which should investigate
other successful international benefit-sharing mechanisms that should
be done before the expert group meets, to focus its efforts.
The Republic of Korea said that the scope of this mechanism is not
clear and will have an impact on Article 4 of the Protocol dealing
with the relationship of the Protocol with other international instruments
dealing with genetic resources with particular characteristics.
Switzerland said that every effort at this time should be made to
implement the bilateral requirement in the Protocol but each country
should first do a gap analysis of the ABS regulatory requirements
within its territory and once this gap analysis is done, the expert
meeting suggested by the Secretariat would be useful.
The EU said the discussion is good to help us reflect, and prefers
to go step by step as outlined it its submission to the Secretariat.
It is open to identifying possible situations where the multilateral
mechanism will apply; thereafter, the second step should assess if
a global mechanism would add value in those cases. It said that this
would provide good technical and factual basis for discussion among
Parties of the Protocol (indicating that this will be dealt with at
a later stage) and emphasised that no decision can be taken except
by the Parties. The EU said that we can talk about it for now, consult
with the public, ILCs (indigenous and local communities), etc, and
the Secretariat can do a dialogue, and submit the results to COP-MOP.
(Observers note that the EU is focusing on the "need for"
a global mechanism and its approach would defer this matter. The EU
is also not supportive of opening the temporal as well as the geographic
scope of the Protocol.)
Brazil said that it had read the Secretariat paper and description
of situations where the mechanism might be used. Brazil said we need
time to reflect on this, this being the first time this is discussed
by the Committee, as it will have an effect on the nature, scope and
objective of the Protocol, and this will be decided by the Parties
to the Protocol, but the Protocol has not yet entered into force,
thus Brazil supports the further solicitation of views on this issue,
and an expert meeting based on items submitted by governments.
Guatemala supported Peru and Brazil as regards the impact of this
mechanism on the scope as well as sovereignty of countries over their
resources but highlighted the importance of identifying the full background
of this proposal. It cautioned against creating any perverse incentives,
saying that somebody who does not have PIC might opt for a multilateral
Thailand sees this mechanism as essential and integral in addressing
situations that are not dealt with by the Protocol, especially those
not only addressed in its region, South East Asia, but also in others.
Japan said that the establishment of this mechanism must consider
the need as well as the modalities that is acceptable to users of
genetic resources, in a manner that is cost-effective with benefits
directed to conservation and sustainable use of genetic resources;
at least what can be done now is to collect information on situations
where it is not possible to secure prior informed consent with inputs
from experts on the UN High Level Panel on Marine Genetic Resources
Outside National Jurisdiction, the Antarctic Treaty, the International
Treaty on Plant Genetic Resources for Food and Agriculture and traditional
knowledge in various situations.
Sudan and Burkina Faso supported Namibia and provided examples justifying
the need for this mechanism, with Burkina Faso citing the case of
genetic resources acquired before the entry into force of the Protocol
and before the independence of some countries, where most of their
resources were acquired by those who held control over their territories.
Canada recognized that Article 10 is critical, but the ICNP is to
initiate discussion. It tried to understand Article 10 but cannot
adjust to it, and there is a huge need for more information. It added
that more discussion is needed at the ICNP, specifically on the need
for a global mechanism and that an expert group would be meaningless
if we don't know what we're talking about. It said that we have to
figure out what kinds of cases would fall under such a mechanism.
We have spent 8-9 years on a sovereignty-based system. What would
an alternative mechanism give to us that the rest of the Protocol
doesn't? If we have agreement on everything, then maybe we can move
forward with this, but we won't even support an expert meeting until
we have more information.
Ecuador shared the concerns of Mexico, Colombia and Peru on a multilateral
mechanism, saying that this would be for cases where traditional knowledge
about genetic resources spills over borders. We're unsure how to do
PIC in trans-border cases. And what if there are Parties and non-Parties
mixed up in the mechanism? On the other hand, it supported the expert
group, adding that a multilateral system cannot interfere with national
Norway emphasised that this mechanism should not undermine the sovereign
rights of states in the bilateral mechanism of access and benefit-sharing
under the CBD, and that the possible areas where it is not possible
to secure prior informed consent involve collection in areas beyond
national jurisdiction including those that are discussed in the UN
Informal Group in Areas beyond National Jurisdiction. However, Norway
added, we also have to deal with cases where the provider countries
do not require prior informed consent, or orphan genetic resources
where the origin is not known and whether users can share benefits
for conservation and sustainable use globally; is this a voluntary
effort or is it part of a certain modality? Finally, Norway said it
can support an Expert Meeting but such meeting needs to be guided
by concrete questions.
Cuba said there have been a lot of examples over the years of transboundary
cases and cases where there's no owner. We do need a specific answer
to this, and the Protocol as such does not have one yet. This answer
should be an integral part of the Protocol. It said that this is the
first time we are discussing this, we won't solve it now, but that's
not a reason not to discuss because these resources are being used.
Let's seize the moment. We want a mechanism and have it inside the
Malaysia said that Article 10 was sprung on us at the last minute.
It was not negotiated. What does it mean? We supported Africa on this,
on principle, as a matter of solidarity because of access of resources
in certain situations. But this provision is bristling with complex
issues. We need to understand those issues and need to be on the same
page to move forward. Does it cover historical collections, ongoing
or new use of them, or resources after the coming into force of the
Protocol? Malaysia did not get a clear sense if we're on the same
page on this, where some seem to be saying yes, and others seem to
be saying no. It said that we have fought hard on sovereignty and
PIC. Now, we have a situation of a global mechanism that is not clearly
in the framework of the Protocol. Let's be clear that we do not marginalise
or allow to slip away sovereignty. On transboundary issues, there
are so many examples. If it's shared, and most are, are we going to
apply this provision over others? We need to figure that out. And
on PIC, where it can't be obtained, what's the situation in which
it should? Does it mean we will bypass PIC from ILCs? Malaysia stressed
that we need to be really careful here not to create a parallel system
to undermine national legislation.
It further said that we need to move forward and discuss these issues
in a mature and careful manner, and support an expert meeting with
clear terms of reference. But, Malaysia also said, sometimes we do
these expert meetings but then bypass them later. If we're going to
have an expert meeting, then let's be sure there's follow-up on the
expert result. Art. 10 does refer to Parties, so that seems to say
after the entry into force of the Protocol. This is a very difficult
situation to grapple with, it concluded.
Egypt supported the Africa Group position, which is consistent with
the Arab country position saying also that it is important to look
into modalities that can guarantee its implementation, thus supporting
the establishment of an Experts' Meeting on this issue.
The Co-Chair closed the discussion by saying that the atmosphere had
been constructive, and that Article 10 was not negotiated as such,
but now it is part of the Protocol and Parties will have an obligation
here. The Co-Chair will return to the issue with a suggested way forward.
(* With contributions from Edward Hammond.) +