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TWN Info Service on Biodiversity and Traditional Knowledge (July12/04)
13 July 2012
Third World Network


Nagoya Protocol: Differences over compliance system

Beijing/Austin, USA, 13 July (Chee Yoke Ling and Edward Hammond) – The development of compliance procedures and mechanisms under the new treaty to combat biopiracy and ensure fair and equitable benefit sharing from the use of genetic resources and associated traditional knowledge continues to see major differences between developing and developed countries.

The compliance mechanism of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits was already very contentious during the Protocol negotiations leading to its adoption 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.

The Protocol was negotiated under the Convention on Biological Diversity (CBD) that has 193 Parties, with the United States not being a Party to the CBD.

The draft recommendation on the “Cooperative Procedures and Institutional Mechanisms to Promote Compliance with the Protocol and to Address Cases of Non-compliance” under Article 30 of the Protocol was the most contentious document negotiated at the Second meeting of the Open-ended Ad Hoc Intergovernmental Committee for the Nagoya Protocol on Access and Benefit-sharing (ICNP) held 2 to 6 July 2012 in New Delhi, India.

An expert meeting was held in February 2012 in Montreal, Canada and this produced an Annex with a set of procedures and mechanisms that was accepted by the ICNP-2 as its basis for work, with additional options and text included over the week. The resulting 6-page document that will be submitted to the CBD’s 11th meeting of the Conference of the Parties (COP 11) is heavily bracketed (indicating no agreement), and the contact group on this topic managed to have a second reading only up to part C of the document when it 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 the review of procedures and mechanisms.

The African Group introduced an additional part as follows: “[Part F(bis) The Committee shall establish the office of an ABS ombudsman to provide assistance to developing countries and ILCs to identify instances of non-compliance and make submissions to the Committee.]” The whole part is bracketed.

The ICNP-2 recommendation to the COP 11 is to forward the document with its myriad brackets and options to the first meeting of the COP-MOP or a future meeting of the ICNP to enable the first meeting of the Protocol Parties to approve it.

[The meeting was attended by 5 experts per region from Brazil, Cameroon, Canada, China, Costa Rica, Ethiopia, the European Union, Grenada, Hungary, India, Japan, Madagascar, Malaysia, Mexico, the Republic of Korea, the Republic of Moldova, South Africa, Sweden, Switzerland, Tajikistan, Uganda and United Kingdom. The expert from Argentina, who had been selected and invited, could not attend the meeting.

Experts from the following organizations participated as observers: the Commission on Genetic Resources for Food and Agriculture of the United Nations Food and Agriculture Organization, the International Indigenous Forum on Biodiversity, the Secretariat of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), and the United Nations University-Institute of Advanced Studies.

The Co-Chairs of the INCP, Mr. Fernando Casas (Colombia) and Ms. Janet Lowe (New Zealand), attended as ex officio observers.

Ms. Anne Daniel (Canada) and Mr. Jorge Cabrera Medaglia (Costa Rica) were the co-chairs of the meeting.]

Scope of Article 30

The Protocol addresses compliance in 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), 18 (compliance with mutually agreed terms on access to genetic resources and associated traditional knowledge and 30 (procedures and mechanisms to promote compliance with the Protocol).

A fundamental difference between developing and developed countries is whether Article 30 on “Procedures and mechanisms to promote compliance with this Protocol” also covers the compliance provisions under the other Articles.

Article 30 provides:

“The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first meeting, consider and approve cooperative procedures and institutional mechanisms to promote compliance with the provisions of this Protocol and to address cases of non-compliance. These procedures and mechanisms shall include provisions to offer advice or assistance, where appropriate. They shall be separate from, and without prejudice to, the dispute settlement procedures and mechanisms under Article 27 of the Convention.”

At the first ICNP meeting in June 2011 a heated debate took place between the African Group and the former CBD Executive Secretary over an information document by the latter that drew a clear distinction between Article 30 and the other Articles on compliance. The African Group, represented by Egypt, expressed deep concern that the Secretariat was interpreting the Protocol and thereby prejudging the issue. The Group strongly asserted its right to have its formal statement in the closing plenary reproduced verbatim in the report of the meeting (see https://www.cbd.int/absicnp1/documents/ ).

When the agenda item on Article 30 was first discussed at the June meeting, the African Group, supported by China, had pointed out that Articles 15 to 18 provide for mandatory actions by Parties to the Protocol, and as such Parties’ compliance or non-compliance with those obligations would logically fall within the scope of Article 30.

At the Delhi meeting, the European Union maintained its position that that the compliance mechanism under Article 30 should not deal with compliance by private individuals and entities with national access and benefit-sharing legislation. Since the Protocol deals directly with indigenous and local communities (ILCs) it was willing to explore ILC involvement in the mechanism.

Japan also wanted the compliance mechanism to focus on compliance by Parties, and not address users and traditional knowledge holders.

The preambular paragraph of the document after the first round of discussion was as follows:

“The following procedures and mechanisms are developed in accordance with Article 30 of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising From Their Utilization, in view of the rights and obligations set in the Protocol, in particular Articles 15, 16, 17 and 18, and are [separate][independent] from, and without prejudice to, the dispute settlement procedures and mechanisms established by Article 27 of the Convention on Biological Diversity.”

The EU objected to the explicit references to Articles 15 to 18 and to the word “independent”. Mexico proposed “Article 30 and related Articles” to replace the references to other Articles but this still did not gain consensus.

The current text thus reads: “The following procedures and mechanisms are developed in accordance with Article 30 [and related articles] of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising From Their Utilization.”

Objectives, nature and underlying principles

The objective is agreed: “… to promote compliance with the provisions of the Protocol and to address cases of non-compliance. These procedures and mechanisms shall include provisions to offer advice or assistance, where appropriate. They shall be separate from, and without prejudice to, the dispute settlement procedures and mechanisms under Article 27 of the Convention on Biological Diversity.”

There wide divergence among Parties over the nature of the compliance system under Article 30 as evident from the bracketed options currently in paragraph 2: “The compliance procedures and mechanisms shall be non-adversarial, [non-judicial,] cooperative, simple, expeditious, advisory, facilitative, flexible,[ preventive,] cost-effective [, voluntary,] [positive, ] [and legally non-binding][and legally binding] in nature.”

Some developing countries have concerns over a legally binding mechanism due to their lack of capacity to comply with the Protocol. Several developed countries prefer a non-legally binding option for different reasons.

Malaysia proposed a differentiated approach. Noting that Article 30 deals with measures to promote compliance and address cases of non-compliance, it said that there are two facets in addressing cases of non-compliance. The first is due to lack of capacity and inadequate funding which requires facilitation to enable compliance, taking into account the common but differentiated responsibilities of Parties. Secondly, where there is persistent refusal to comply, this would require a set of stronger measures, otherwise it will not make any sense.

According to Malaysia, on the issue of binding or voluntary, where promotion of compliance due to lack of capacity is concerned, the approach can be soft. But it is difficult to deal with persistent violators in a voluntary way, at least as regard to the nature of the mechanism since the mechanism will be ignored at will if it will not at least be binding.

Meanwhile, the principles for the compliance system set out in paragraph 3 have multiple brackets: “The operation of the compliance procedures and mechanisms shall be guided by the principles of fairness, due process, [rule of law], flexibility, [non-confrontation,] non-discrimination, transparency, accountability, predictability, [consistency,] good faith, [supportiveness,] [effectiveness] [and expeditiousness,] [recognizing the common but differentiated responsibilities of Parties][recognizing that all obligations apply equally to all Parties]. [It shall pay particular attention to the special needs of developing country Parties, in particular the least developed countries and small island developing States among them, and Parties with economies in transition, [and indigenous and local communities,] and take into full consideration the difficulties they face in the implementation of the Protocol.]”

Differences are among different countries, both developing and developed.

The Philippines inserted text on “including compliance and other sui generis mechanisms of indigenous and local communities taking into account their customary laws, norms and practices in accordance with their national legislation”, wherever possible in the application of the compliance system. There was no support for this and so the proposal is also bracketed.

ILCs in or out of the Compliance Committee

It is agreed that a Compliance Committee will be set up under Article 30 and Section C sets out the functions, of which only one out of 11 has been agreed. Whether the Committee members should serve in their “personal and individual capacity” or as “representatives of Parties” is not agreed.

(Members of the Compliance Committee of the Cartagena Protocol on Biosafety, the other CBD protocol, serve in their individual capacity.)

Part B of the document “Institutional mechanisms” deals with the establishment of the Committee, and in paragraph 2 there is an option to include one representative of indigenous and local communities (ILCs) as a full member of the Committee. Some Parties support this option with several other Parties preferring to confer an observer status instead, while yet others do not support either of these though they could agree to some role. The issue was intensely debated at length at the ICNP-2. The observer and representative options are both in brackets.

Paragraph 41 of the report of the expert meeting also reflects the divergence on this issue: “There was a discussion about whether it was appropriate for indigenous and local communities to be able to nominate members to the committee, or serve on the committee and if so, whether as a full member or as an observer. The procedures for nominating representatives of indigenous and local communities were also discussed. A range of views were expressed, with some suggesting that given their prominence in the Protocol, indigenous and local communities should have representation on the committee, while others noted that current global precedents suggested that compliance of Parties with their obligations is appropriately assessed by nominations of such Parties, although a Party could choose to nominate a representative of indigenous and local communities.”

In an attempt to provide a solution, and bearing in mind that the Protocol deals directly with the rights of indigenous peoples to their biological resources and associated traditional knowledge, Malaysia at the last night session of the contact group on 5 July proposed the following new sub-paragraph (k) to be included in Part C, paragraph 1 on the “Functions of the Committee”:

“Consult with relevant body or bodies of ILCs as may be identified by ILCs”.

Malaysia’s representative, Gurdial Singh Nijar, explained that it is important for the Committee to consult ILCs on issues that fall squarely within the scope of the Protocol and where ILC expertise is, and that the Committee’s decision-making will be greatly enhanced by such consultation. He added that this would be better than having one representative on the Committee.

The co-chair (Switzerland) of the contact group on compliance welcomed the proposal as having “merit”.

Peru and the EU found the proposal “attractive” but said it fitted better under Part E on “Information for an consultation by the Compliance Committee after the triggering of the procedures”). Peru referred to an option on the Committee choosing to seek expert advice.

In response, Malaysia said that the paragraph in Part E is about seeking ad hoc experts’ advice, for example when the Committee needs inputs on a matter of international law on dispute settlement. However, the paragraph proposed by Malaysia is about ILCs given rights at the core of the Protocol that recognizes traditional knowledge associated with genetic resources. So ILCs are not ad hoc, they have rights, and the cases that arise will be about them. Malaysia stressed that genetic resources and associated traditional knowledge is about ILCs and therefore its whole proposal is largely about ILCs.

Reiterating that there are Parties that are attached to the proposal to bring ILCs on to the Committee, Malaysia said that if there is some consultative process some Parties may be willing to drop the paragraph B. 2 option (on ILC representation on the Committee).

Norway said it appreciated the spirit of the proposal and could have it included in Part C in brackets.

India disagreed, and suggested that the proposed paragraph could be placed in some other section, example Section E. It said that the Malaysian proposal is not a core function of the Committee.

Uganda (on behalf of the African Group) said it also had sympathy with the substance of the proposal, and that placing it in Section E is quite attractive. Noting that the title of Section E refers to information and consultation but the current draft is all about the Committee seeking information, the Malaysian proposal would fill the gap (i.e. by introducing consultation by the Committee).

The contact group co-chair indicated that he was attracted to picking the paragraph up and placing it as sub-paragraph (k) in Section C, paragraph 2.

The EU did not agree, and said it is misplaced. But we do not want to lose the paragraph, it added. “While I appreciate what Malaysia said about the independent advice paragraph in Section E, but we have not come to that (section) yet”, said the EU representative.

Still trying to help resolve the issue, Malaysia suggested that the proposed paragraph be parked in Section C with an asterisk or footnote to indicate that its placement is to be decided. Malaysia added that all almost all the paragraphs (in the entire document) are bracketed anyway.

Peru then suggested it be a footnote to paragraph B.2.

Clearly frustrated by now, Malaysia said, “Maybe we should place it in the closet. I am very disappointed.”

Since the next step is still uncertain – whether the COP 11 will decide on a third meeting of the ICNP or some intersessional meeting (between COP 11 and COP 12 in 2014) – and the composition of the next group of negotiators may be different, there was some support in the contact group to have the Malaysian proposal included in the document.

Uganda (for the African Group) expressed disappointment that “we are losing this attractive proposal. Because of placement we lose it, and we do not know what the next process will be.”

The co-chair made another attempt but there was no agreement as to where to place the proposed paragraph. He then suggested that perhaps Malaysia could table the proposal again in future, to which the Malaysia representative said that he would not do so. He added that he did not understand this “doublespeak” – some Parties talk of attraction to the proposal but then they were not willing to accept it in Section B. The option for ILCs to be in the Committee will be maintained because they are at the core of the Protocol, he concluded.

Paragraph B.2 currently reads as follows:

“The Committee shall consist of 15 members nominated by Parties, endorsed by the respective regional group of the United Nations [and [could] include representatives of indigenous and local communities [as observers]][as well as one representative of indigenous and local communities as a member of the Committee] and elected by the Conference of the Parties serving as the meeting of the Parties to the Protocol (COP-MOP) on the basis of three members from each of the five regional groups of the United Nations.”

The issue, as with all the outstanding or unresolved issues, will be taken up again in the process to be decided by COP-11 in Hyderabad in October 2012.

When “confidentiality” becomes secrecy

An issue that briefly surfaced in the compliance contact group is the potential for secrecy in the Compliance Committee. This idea was supported by the United States (a non-Party to the CBD but under UN procedures can participate fully except for voting), which sought to retain bracketed language on confidentiality, arguing that it would increase “accountability”. According to some observers, applying confidentiality provisions to the Committee’s work is risky, however, because rather than increasing the Committee’s accountability, it could have the opposite effect.

As noted by Malaysia in the plenary discussion, a Compliance Committee under Article 30 will have distinct tasks including a) promoting compliance, b) addressing non-compliance due to inability, and c) addressing refusal to comply with the Protocol. For each distinct task, there are distinct arguments against confidentiality.

In the first case, effectiveness of measures to promote compliance would certainly suffer from secrecy. It would be counterproductive for efforts to encourage Parties to comply with the Protocol to be shrouded in secrecy, observed an expert at the meeting.

The second instance is that of non-compliance due to inability. This is a circumstance more likely to be encountered by smaller and less developed Parties, and a problem that is essentially one of capacity building. Such issues can be resolved in the non-confrontational manner favor by most CBD Parties through specific, targeted capacity building efforts. While these need not be advertised, there is no reason, and it would impair the transparency of capacity building efforts across the Protocol – to make the committee’s consideration of them, or the resulting activities, secret.

The third instance is that of cases of willful non-compliance, and it is here that the US preoccupation with secrecy is apparently most focused, despite the fact that the process is generally envisaged as being non-judicial and non-confrontational, according to the expert who is familiar with bioprospecting activities of US-based entities. Surrounding these possible non-compliance cases with secrecy could cause problems for the Protocol, however, because limiting access to information about them makes learning from them difficult. Without creating clear lessons learned, repetition of problems is more likely. Secrecy could also interfere with the Committee’s fact finding by limiting the involvement of experts and the provision of outside inputs to the Committee for its consideration.

Secrecy could also interfere with the anticipated participation of ILCs in the Compliance Committee, and would limit public awareness of its activities. All of these effects could limit most developing countries, and have a tendency to favor large countries with experienced dispute resolution capacity. Confidentiality thus finds particular favor among developed country Parties, who may confuse “accountability” with a predisposition to resolve problems in their own favor, according to the expert.

The Delhi ICNP meeting considered the following issues:

  • The development of a programme budget for the biennium following the entry into force of the Protocol;
  • The elaboration of guidance for the financial mechanism and resources mobilization for the implementation of the Protocol;
  • Consideration of the rules of procedures for the COP-MOP;
  • Elaboration of the draft provisional agenda for the first meeting of the Parties;
  • The need for and modalities for a global multi-lateral benefit-sharing mechanism; and
  • Continued consideration of items taken up at the first meeting of the ICNP in June 2011: (i) the Access and Benefit-sharing Clearing-House; (ii) Capacity building, capacity development and strengthening of human resources and institutional capacities in developing countries and countries with economies in transition; (iii) Awareness raising of the importance of genetic resources and associated traditional knowledge and related access and benefit-sharing issues; (iv) Cooperative procedures and institutional mechanisms to promote compliance with the Protocol and to address cases of non-compliance.

(This is an expanded version of the article published in SUNS#7411.)

 


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