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TWN Info Service on Biodiversity and Traditional Knowledge (July12/03)
13 July 2012
Third World Network

Nagoya Protocol: Some progress, but divergence remains in implementation preparations

Beijing, 12 July (Chee Yoke Ling) – Preparations for the entry into force of the Nagoya Protocol on Access and Benefit-sharing continue to see significant differences between developing and developed countries in the areas of finance and the system for compliance with the Protocol.

The Second meeting of the Open-ended Ad Hoc Intergovernmental Committee for the Nagoya Protocol on Access and Benefit-sharing (ICNP) was held 2 to 6 July 2012 in New Delhi, India. This Committee is tasked with undertaking the preparations necessary for the first meeting of the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD) serving as the Meeting of the Parties to the Protocol. The 193-member COP at its last biennial meeting in 2010 in Nagoya, Japan established the Committee.

The Delhi meeting adopted eight draft recommendations, for consideration and adoption by the 11th meeting of the CBD COP on 8-19 October 2012 in Hyderabad, India, and by the first meeting of the COP serving as the Meeting of Parties to the Protocol (COP-MOP). The Nagoya Protocol was first negotiated under the CBD in 2005 and concluded in late 2010 at the 10th meeting of the COP in its namesake Japanese city.

The way forward was agreed on several contentious issues related to the access and benefit-sharing clearing-house, “the need for and modalities of a global multilateral benefit-sharing mechanism” under Article 10 of the Protocol, and the further work to prepare for the first meeting of the COP serving as the Meeting of the Parties to the Protocol (including the costing of activities for 2013-2014).

Other recommendations that were discussed more smoothly and adopted were on “Measures to raise awareness raising of the importance of genetic resources and associated traditional knowledge and related access and benefit-sharing issues”, and “Measures to assist in capacity building, capacity development and strengthening of human resources and institutional capacities in developing countries and countries with economies in transition”.

Due to a number of issues that still need work, the meeting is proposing to the COP 11 in Hyderabad to mandate a third meeting of the ICNP to address outstanding issues of its work plan in preparation for the first meeting of the COP-MOP.

There are currently 92 signatories and 6 ratifications to the Protocol (Ethiopia, Gabon, Jordan, Rwanda, Seychelles and Mexico). 50 ratifications are required for it to enter into force after which the first meeting of the Parties will be held. It was originally hoped that enough ratifications would lead to the first COP-MOP meeting to be held back-to-back with the 2012 CBD COP meeting. The anticipation is now for this to take place at the next COP meeting in 2014.

Resource mobilization for the Protocol implementation

The Delhi recommendation on resource mobilization recalls the relevant provisions of the Protocol and the CBD as well as the Strategy for Resource Mobilization in support of the achievement of the three objectives of the CBD (2008-2015). The three objectives are: conservation of biodiversity, sustainable use of biodiversity, and fair and equitable benefit sharing from that use.

Article 25(1) of the Protocol on “Financial Mechanism and Resources” provides that, “In considering financial resources for the implementation of this Protocol, the Parties shall take into account the provisions of Article 20 of the (CBD)”.

The recommendation reaffirms the commitments of Parties to meet the obligations in Article 20 of the CBD on “Financial Resources”. Malaysia, India and Senegal on behalf of the African Group had asked for explicit reference to Article 20.

[Article 20(1) of the CBD provides that, “Each Contracting Party undertakes to provide, in accordance with its capabilities, financial support and incentives in respect of those national activities which are intended to achieve the objectives of this Convention, in accordance with its national plans, priorities and programmes.”

[Article 20(2) of the CBD provides that, “The developed country Parties shall provide new and additional financial resources to enable developing country Parties to meet the agreed full incremental costs to them of implementing measures which fulfil the obligations of this Convention and to benefit from its provisions and which costs are agreed between a developing country Party and the institutional structure referred to in Article 21, in accordance with policy, strategy, programme priorities and eligibility criteria and an indicative list of incremental costs established by the Conference of the Parties. Other Parties, including countries undergoing the process of transition to a market economy, may voluntarily assume the obligations of the developed country Parties … Contributions from other countries and sources on a voluntary basis would also be encouraged. The implementation of these commitments shall take into account the need for adequacy, predictability and timely flow of funds and the importance of burden-sharing among the contributing Parties included in the list.”]

The recommendation also emphasizes that “any new and innovative financial mechanisms are supplementary to and do not replace” the financial mechanism established under the CBD and Protocol.

This is significant, as Bolivia supported by some CBD Parties had strongly objected to a draft decision on new and innovative financial mechanisms at the last COP meeting in Nagoya in 2010. The concern was that such mechanisms could divert from the CBD financial commitments of developed countries and open the door to biodiversity being turned into an asset for speculative financial instruments. That draft decision was subsequently withdrawn and a COP-mandated experts workshop was held in Quito, Ecuador in April 2012 to further discuss this topic. This issue will be on the Hyderabad COP meeting agenda in October 2012.

In line with part of this concern, the Philippines, for the group of Like Minded Megadiverse Countries (LMMC), and supported by Brazil, reiterated its position at the closing ICNP-2 plenary on 6 July that the brackets be maintained in paragraph 3 of the draft recommendation that encourages Parties to include “those resources generated through the successful implementation of access and benefit-sharing agreements” as part of the domestic resources that Parties should direct towards the implementation of the Protocol.

The European Union insisted on the inclusion of this phrase and wanted the brackets removed. (In the initial discussion on 2 July, Norway and Switzerland expressed the view that access and benefit agreements can contribute to resource mobilization for achieving the CBD objectives but did not support the EU in this particular context.)

The Philippines explained that this constituted a rolling back of the obligations of developed country Parties to provide resources and technology transfer to enable developing country Parties to implement their CBD obligations, as already laid out in Article 20(4) of the Convention, stressing that the extent that developing countries undertake actions depends on the implementation of commitments of developed countries. The LMMC insisted that this issue should be left for decision by the COP in October.

(Article 20.4 of the CBD reads: “The extent to which developing country Parties will effectively implement their commitments under this Convention will depend on the effective implementation by developed country Parties of their commitments under this Convention related to financial resources and transfer of technology and will take fully into account the fact that economic and social development and eradication of poverty are the first and overriding priorities of the developing country Parties.”)

The only paragraph with brackets in the resource mobilization recommendation from the Delhi meeting thus reads as follows: “Encourages also Parties to direct domestic resources, in accordance with national circumstances, [including those generated through the successful implementation of access and benefit-sharing agreements] as well as through other new and innovative financial mechanisms, towards the implementation of the Protocol; …”

The recommendation also encourages “Parties, other Governments (i.e. non-Parties), relevant organizations, the private sector and financial institutions to provide, in accordance with their capabilities, financial resources, including through new and innovative financial mechanisms, for the implementation of the Protocol and to include support to the implementation of the Protocol as a priority area for funding.”

The CBD Executive Secretary is requested to prepare a synthesis of the information received regarding experiences related to the mobilization of resources to support the implementation of the Protocol and to provide an overview of the status and trends in funding for the consideration of the next meeting of the COP-MOP.

The Executive Secretary is also requested to prepare a document on possible relevant sources of international funding to support the efforts by Parties to mobilize additional international financial resources for the implementation of the Protocol.

Guidance for the Global Environment Facility (GEF)

The Delhi draft recommendation on this topic contains 2 annexes on guidance to the GEF – Annex I is for the Protocol’s first meeting of the COP-MOP to consider and adopt, comprising operational arrangements with the GEF Council, and guidance for the financial mechanism (policy and strategy, programme priorities and eligibility criteria).

Annex II is for the 11th meeting of the CBD COP in October 2012, to consider and adopt, comprising programme priorities for inclusion in the 4-year framework for programme priorities for the period 2014-1018 (the GEF’s 6th replenishment period); and the Nagoya Protocol Implementation Fund. This Fund operated by the GEF was established in May 2011 to help developing countries to build their capacity to engage in the ratification and implementation of the Protocol.

Simplifying and expediting the process and criteria for access to financial resources for access and benefit sharing was a central issue for developing countries. There were also concerns expressed by many, especially the African Group and Malaysia that financial assistance the Nagoya Protocol Implementation Fund would be limited to only those who have ratified or intends to ratify the Protocol. These developing countries emphasized that the financial mechanism is for all access and benefit sharing activities under the CBD.

Article 25(2) of the Protocol on “Financial Mechanism and Resources” provides that, “The financial mechanism of the Convention (CBD) shall be the financial mechanism for this Protocol”.

Article 21(1) of the CBD on “Financial Mechanism” states that, “There shall be a mechanism for the provision of financial resources to developing country Parties for purposes of this Convention on a grant or concessional basis ... The mechanism shall function under the authority and guidance of, and be accountable to the Conference of the Parties for purposes of this Convention. The operations of the mechanism shall be carried out by such institutional structure as may be decided upon by the Conference of the Parties at its first meeting … The mechanism shall operate within a democratic and transparent system of governance.”

During the negotiations of the CBD and the other two conventions on climate change and combatting desertification that took place in parallel and were concluded in 1992, developing countries had resisted having the GEF named in the treaties as they had preferred an independent fund under each convention that would be directly accountable to the respective Conference of the Parties. Developed countries rejected this and the compromise was the provision of a financial mechanism under each treaty to be operated by a structure or entity determined by the respective COP. The CBD COP at its first meeting designated the GEF as the “institutional structure” to operate the mechanism.

[In contrast Article 11(1) of the UN Framework Convention on Climate Change provides that, “A mechanism for the provision of financial resources on a grant or concessional basis, including for the transfer of technology, is hereby defined. It shall function under the guidance of and be accountable to the Conference of the Parties, which shall decide on its policies, programme priorities and eligibility criteria related to this Convention. Its operation shall be entrusted to one or more existing international entities.”

This allows for the flexibility of entities other than the GEF to operate the treaty’s financial mechanism even though the COP decided on the GEF as an operating entity.]

Under the Nagoya Protocol Article 25(5), guidance to the financial mechanism of the CBD in relevant decisions of the CBD COP including those agreed before the adoption of the Protocol, shall apply mutatis mutandis, to the provisions of Article 25 of the Protocol. This means that the relevant CBD COP decisions will apply with the necessary changes having been made taking into account differences between the two treaties.

[Article 21(1) of the CBD mandates the COP “to determine the policy, strategy, programme priorities and eligibility criteria relating to the access to and utilization of financial resources to developing country Parties for purposes of the CBD on a grant or concessional basis. The contributions shall be such as to take into account the need for predictability, adequacy and timely flow of funds referred to in Article 20 in accordance with the amount of resources needed to be decided periodically by the COP and the importance of burden-sharing among the contributing Parties. Voluntary contributions may also be made by the developed country Parties and by other countries and sources.”]

There was considerable discussion on the removal of the brackets on the paragraph in Annex I (COP-MOP guidance to the GEF) that “retires” former guidance, in which the CBD COP is asked to do as follows: “[Decides that the above guidance (to the GEF) supersedes all previous guidance to the financial mechanism related to access and benefit-sharing]”.

Namibia on behalf of the African Group maintained its position that it needed time to review the previous guidance decisions and to assess the implications of the new guidance superceding the earlier ones. There is guidance on access and benefit-sharing under the CBD, and we are not comfortable that until all join the Protocol there will be no discussion of guidance to the GEF, it said.

So the brackets will remain until the first meeting of the COP-MOP or an intersessional, as decided by the COP 11.

Malaysia was particularly concerned over a paragraph under the sub-section on “Eligibility criteria” for funding under the Protocol’s financial mechanism in Annex I that originally read as follows:

“‘Developing countries and countries with economies in transition that are Parties to the Convention and provide a clear political commitment towards becoming Parties to the Protocol, shall be eligible for funding by the Global Environment Facility for up to four years after the Protocol has entered into force for the development of national measures and institutional capabilities in order to enable them to become a Party. Evidence of such political commitment shall take the form of a written assurance to the Executive Secretary that the country intends to become a Party to the Nagoya Protocol on completion of the activities to be funded.” (Emphasis added).

In the discussions Malaysia voiced its problem with conditionalities placed on funding by the GEF, stressing that that GEF should fund all Parties to the CBD, which will facilitate implementation. It added that asking countries to show political commitment would be very difficult given different types of national circumstances. According to Malaysia, provision of financial resources to developing countries is an obligation for the GEF under Article 21 that it cannot abdicate from. Article 15 of the CBD on measures related to benefit sharing specifically refers to Article 21, and the Nagoya Protocol flows from Article 15.

After small group informal negotiations it was agreed that “clear political commitment” would be replaced with “clear intention”.

Another paragraph in Annex I that remains bracketed reads: “[Recommends the allocation of funds by the Global Environment Facility in a separate window specific to access and benefit-sharing activities under the System of Transparent Allocation of Resources (STAR)].”

Developing countries especially the Group of Latin American and Caribbean Countries (GRULAC) had maintained that there be a separate window for financing access and benefit-sharing activities. In the final plenary Canada could still not agree to removal of the brackets. Its representative said that it has “to refer back to capital as this depends on how national authorities allocate resources, it is still uncertain until further analysis at capital by its financial people.”

Paragraph 6 of Annex too reiterates the COP’s invitation to the GEF to provide financial support to Parties for early ratification of the Protocol and its implementation.

The programme priorities agreed in both Annex I and II, for the GEF to consider financing, include the following:

(a) Building the capacity of Parties to develop, implement and enforce domestic legislative, administrative or policy measures on access and benefit-sharing, thereby contributing to the conservation of biological diversity and sustainable use of its components, including through:

(i) Identification of relevant actors and existing legal and institutional expertise for the implementation of the Protocol;

(ii) Taking stock of domestic measures relevant to access and benefit-sharing in light of the obligations of the Protocol;

(iii) Development and/or amendment of access and benefit-sharing legislative, administrative or policy measures with a view to implementing their obligations under the Protocol as users and providers of genetic resources and traditional knowledge associated with genetic resources;

(iv) Establishment of ways to address transboundary issues; and

(v) Establishment of institutional arrangements and administrative systems to provide access to genetic resources, ensure benefit sharing, support compliance with prior informed consent and mutually agreed terms and monitor the utilization of genetic resources and traditional knowledge associated with genetic resources, including support for the establishment of check points;

(b) Building the capacity of Parties to negotiate mutually agreed terms to promote equity and fairness in negotiations in the development and implementation of access and benefit-sharing agreements, including through enhanced understanding of business models and intellectual property rights

(c) Building the capacity of Parties to develop their endogenous research capabilities to add value to their own genetic resources and traditional knowledge associated with genetic resources through, inter alia, technology transfer; bioprospecting and associated research and taxonomic studies; and the development and use of valuation methods;

(d) Addressing the capacity needs and priorities of indigenous and local communities and relevant stakeholders; in particular, projects that would:

(i) Encourage their participation in legal, policy and decision-making processes; and

(ii) Assist in building their capacity related to genetic resources and traditional knowledge associated with genetic resources, such as through the development of community protocols, model contractual clauses and minimum requirements for mutually agreed terms to secure the fair and equitable sharing of benefits;

(e) Enabling Parties to actively participate in the Access and Benefit-sharing Clearing-House and use the best available communication tools and Internet-based systems such as audio and video tools for access and benefit-sharing activities;

(f) Supporting Parties in raising-awareness of the importance of genetic resources and traditional knowledge associated with genetic resources, and related access and benefit-sharing issues, notably through the development and implementation of national and regional awareness-raising strategies;

(g) Supporting the implementation of the strategic framework for capacity-building and development in support of the implementation of the Protocol.

Nagoya Protocol Implementation Fund

The recommendation in Annex II on guidance by the CBD COP to the GEF also addresses a new fund operated by the GEF, the Nagoya Protocol Implementation Fund (NPIF). There was considerable discussion on this topic with especially the African Group expressing disappointment and frustration over difficulties to access the funds, and that the GEF seems more inclined towards supporting bioprospecting activities.

In a discussion on 3 July on capacity building, Namibia said there is a very close link between guidance to the financial mechanism and capacity building. It added that the only funding available for early ratification is the Nagoya Protocol Implementation Fund (NPIF) but this is not available because the former CEO of the GEF decided by herself to use the fund for bioprospecting partnerships (referring to Ms. Monique Barbut).

The Fund was proposed by Japan as host of the CBD COP in 2012 as a new voluntary fund at the GEF, with a pledge of 1 billion Yen (about USD 12 million) announced at the COP meeting. It was then established in May 2011, with the World Bank as trustee (the Bank acts as trustee for the GEF). Japan, Switzerland, Norway, the United Kingdom and France have made financial contributions.

According to the CBD Secretariat’s press release dated 3 June 2011, “The fund is specifically designed to support countries looking to build enabling activities to ratify the protocol as well as finance projects at the national and regional levels that will promote technology transfer, private sector engagement, and the conservation and sustainable use of traditional knowledge associated with genetic resources. (It) will also help Parties build capacity to ensure appropriate access and use of traditional knowledge with genetic resources.”

According to the GEF’s own literature, “The (Fund) supports signatory countries and those in the process of signing the Nagoya Protocol, and that intend to ratify the Protocol in order to accelerate the
ratification and implementation of the Protocol. (It) supports, among others, existing opportunities leading to development and implementation of concrete ABS agreements with involvement of the private sectors. The projects funded … encourages the engagement with private sector entities interested in exploring the economic potential of genetic resources and facilitate the transfer of appropriate technologies.”

The Delhi meeting agreed for the COP to recommend that funds from the NPIF be used to support projects to assist the early into force of the Protocol and to create enabling conditions at the national and regional levels for its effective implementation.

The COP is also asked to recommend to the GEF to expedite procedures for access to funds from the NPIF.

Peru on behalf of GRULAC during the final plenary queried the implications of paragraph 5 of Annex II that reads: “Invites donors and the private sector to contribute to the NPIF with a view to ensuring continued support for the early into force and implementation of the Nagoya Protocol”.

The Group was concerned about the continuation of the NPIF, where text to that effect from an earlier draft was no longer included.

(Many developing countries were unsure whether the next GEF replenishment will include contributions from developed countries to the NPIF. Several have also informally expressed concerns over the emphasis on the private sector.)

The ICNP co-chair Fernando Casas of Colombia said that the Committee had accepted the paragraph and Annex II as a whole and it would not be possible to reopen it for discussion, and that it was up to the GEF to decide.

Peru then said that due to the ambiguity created this is something we shall pick up at the COP, to which Casas said this concern would be reflected in the report.

Jordan, Ghana, Cameroon (for the African Group), Thailand, Senegal, St Lucia, Ecuador and Cuba all supported Peru and requested to have their concerns included in the ICNP report. Many expressed the need for clarification at the next COP meeting.

Co-chair Casas also reminded Parties that the ICNP in its guidance recommendation also invites the GEF to provide the COP in October with a report on the progress made under the NPIF to support the ratification and implementation of the Protocol.

Compliance system

Negotiations on the draft text for the “cooperative procedures and mechanisms to promote compliance and address cases of non-compliance with the Nagoya Protocol” were the most contentious. The 6-page document that will be tabled to the COP 11 is heavily bracketed. The second reading of the text reached only up to part C of the document when the contact group finished its last meeting at 11pm on 5 July.

Part A is on objectives, nature and underlying principles, Part B on institutional mechanisms, Part C on functions of the Compliance Committee, Part D on procedures, Part E on information for and consultation by the Compliance Committee after the triggering of the procedures, Part F on measures to promote compliance and address cases of non-compliance, and Part G on review of procedures and mechanisms.

An expert meeting was held in February 2012 in Montreal, Canada and this produced a set of procedures and mechanisms developed in accordance with Article 30 of the Protocol and these were the basis for the Delhi negotiations.

The compliance mechanism of the Nagoya Protocol on access and benefit sharing was already very contentious during the Protocol negotiations leading to its adoption at the COP 10 in 2010. It was one of the key areas of differences where a take-it-or-leave it compromise was imposed on most Parties. Not surprisingly it continues to evoke divergent views between developing and developed countries.

A fundamental difference between developing and developed countries is whether Article 30 on compliance with the Protocol also covers the compliance provisions under Articles 15 (compliance with domestic legislation or regulatory requirements on access and benefit-sharing), 16 (compliance with domestic legislation or regulatory requirements on access and benefit-sharing for traditional knowledge associated with genetic resources), 17 (monitoring the utilization of genetic resources to support compliance), and 18 (compliance with mutually agreed terms on access to genetic resources and associated traditional knowledge.

The recommendation to the COP 11 is to forward the draft bracketed document to the first meeting of the COP-MOP or a future meeting of the ICNP to enable the first meting of the Protocol Parties to approve it.

(For a detailed report on this topic please see the next mailing of the TWN Info Service.)

Access and benefit-sharing clearing-house

Developing countries wanted a separate and independent access and benefit-sharing (ABS) clearing-house to serve the Nagoya Protocol. On the other hand the EU wanted to stress the importance of developing the clearing-house as an “integral part” of the CBD clearinghouse mechanism.

The final agreed text is that the ICNP stressed “the importance of developing the Access and Benefit-sharing Clearing-house as an integral part of the operations of the Nagoya Protocol and the clearing-house mechanism of the Convention on Biological Diversity, serving as a means for sharing information related to access and benefit-sharing, in accordance with Article 14 of the Protocol, and without prejudice to its operational independence and efficacy.”

Meanwhile, the pilot phase that was authorized by the first meeting of the ICNP in June 2011 has not started yet due to the lack of funds to hire the necessary technical personnel and this has since been resolved. Accordingly the ICNP “urges the Executive Secretary to expedite the implementation of the pilot phase”. A progress report will be provided to the CBD COP 11 that will include an indicative work plan and timeline for activities to take place until the first meeting of the COP-MOP of the Protocol, and an updated estimate of resource requirements for the October COP to consider.

The ICNP-2 recommended to the COP 11 to establish an informal advisory committee to assist the CBD Executive Secretary on the implementation of the pilot phase of the ABS clearing-house and to provide technical guidance with respect to the resolution of technical issues arising from the ongoing development of the said pilot phase.

There was also agreement negotiated in a small group by the Philippines, for the LMMC, with Canada, Uganda (for the African Group) and the EU on 5 July on how the COP 11 may take forward the matter of reaching common understanding on several “unresolved issues” of the ABS clearing-house.

This is a matter that arose in the ICNP-1 last year when the Philippines urged Parties to develop specific proposals in time for ICNP-2 on how to deal with the unresolved issues of the clearinghouse. These are proposals made by the Expert Meeting on the Modalities of Operation of the Access and Benefit-Sharing Clearing-House (document UNEP/CBD/ABS/EM-CH/1/4 – paragraph 7 of the Annex) which did not get included in the pilot phase due to lack of agreement among the Parties in ICNP-1. The issues include: notification of permits or its equivalent; the updating of the internationally recognized certificate of compliance, including information on third party transfers; tracking the utilization of genetic resources across sectors; identification of subject matter on genetic resources covered by the certificate in the light of possible changes in its nomenclature; and examining how the ability of the clearinghouse may be developed to keep confidential information and keep it confidential until confidentiality may no longer be required.

At the Delhi meeting, this issue was taken up by the LMMC group. The Philippines, speaking on behalf of the LMMC at the discussion of the draft recommendation document on the clearing-house, proposed a process to be sent to the COP-MOP wherein a common understanding can be reached on the unresolved issues, taking into account the results of the pilot phase of the ABS clearing-house. It reiterated that the issue was from the expert meeting and ICNP-1 had asked for this to be dealt with.

The final adopted recommendation is a request from COP 11 to the first meeting of the COP-MOP to take into account the points that may require further consideration for the ABS Clearing-house, and for COP-MOP 1 to suggest ways of reaching common understanding of these points, informed by lessons learned from the pilot phase of the ABS Clearing-house. A footnote indicates that the points are in paragraph 7 of the Annex to the expert meeting report.

In a side event organized by Berne Declaration, EED (German Development Service), ECOROPA and Third World Network on 4 July, several researched cases of biopiracy through patents and patent claims related to genetic resources and associated traditional knowledge from Asia and South America were presented. This prompted several delegates to remark on how such information should be part of the ABS clearing-house.

Global multilateral benefit-sharing mechanism

There was lengthy discussion on Article 10 of the Protocol that was not a negotiated outcome but rather a “deal breaker” introduced by the COP 10 Presidency (Japan) in the final stages of the 2012 COP in Nagoya. The genesis was an informal proposal floated by the African Group during the Protocol negotiations, with the aim of establishing a global ABS fund to capture the benefits including from the use of genetic resources where prior informed consent is not possible to obtain, and uses of resources from areas beyond national jurisdiction.

However the text in the Protocol 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 utilization 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” (Emphasis added).

Namibia on behalf of the African Group stressed at the 2 July plenary discussion on Article 10 that, the brackets that disappeared overnight in Nagoya (referring to the contested parts of the Protocol up until the final days of the COP 10) were key to (the Protocol’s) adoption; we are willing to talk about our position, but it’s absolutely unacceptable to the African Group that there’s no need for a global mechanism. It said that Africa’s flexibility on this was a key enabler for the adoption of Protocol in Nagoya (referring to the differences between Article 10 and the Group’s original proposal).

The EU favoured more discussion and broad consultation to obtain views on the need for and modalities of such a global mechanism. Brazil said that the Protocol Parties should undertake consideration of the need for a mechanism.

The Republic of Korea raised the need to consider Article 11 on transboundary cooperation to which Sudan said the two articles address different scope.

A contact group was set up to that conducted intense discussion and produced a clean text approved by the ICNP-2. The recommendation to COP 11 is to request the Executive Secretary to conduct broad consultation on Article 10 of the Protocol, and to invite CBD Parties, other Governments, relevant international organizations, indigenous and local communities, and all interested stakeholders to submit their targeted views on Article 10 guided by an indicative list of questions that was prepared by the Delhi meeting.

The results of such consultation will be synthesized by the Executive Secretary, who will then, subject to availability of funds, convene a regionally balanced expert group to meet and review the synthesis and identify potential areas of common understanding as well as areas that could be further examined. The expert group is to submit the outcomes of its work to the first COP-MOP meeting.

The recommendation contains an Annex with two parts. Part A is an “indicative list” of nine questions to consider in the submission of views on the need for and modalities of a global multilateral benefit-sharing mechanism. Part B comprises 20 “Additional questions raised by Parties at the (ICNP-2) on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization”.

These were not negotiated, and are issues and questions tabled by the Parties in the contact group. They are also not exhaustive and Parties can add to these, prompting some developing country Parties to remark that this could be an exercise that goes on for considerable time rendering the actual benefit sharing a distant reality.

Future work

A recommendation was adopted by the ICNP-2 to address further work in preparation for the first COP-MOP meeting of the Protocol. Parties are invited to submit information on the steps taken by them towards ratification and implementation of the Protocol, and also information on additional issues that may need to be addressed for the first COP-MOP meeting. All this will be complied by the Executive Secretary for the COP 11.

The Executive Secretary is also requested to provide the COP 11 with an overview of the status of issues for consideration of the INCP, a draft of which was approved in the Delhi meeting.

The recommendation to the COP 11 is to reconvene the ICNP for a third meeting, since the original mandate from COP 10 is two meetings.+

(This is an expanded version of the article published in SUNS#7410 dated 13 July 2012.)

 


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