TWN Info Service on Biodiversity and Traditional Knowledge (Sept12/01)
19 September 2012
Third World Network

Dear friends and colleagues,

One of the contentious issues during the negotiations of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization arose from the attempts of European countries to carve out genetic resources for food and agriculture.

A main argument was the “distinctive features” of such genetic resources. Europe and other developed countries also did not favour a legally binding international agreement to implement the benefit-sharing provisions of the Convention on Biological Diversity (CBD). On the other hand, developing countries made the case for a comprehensive international legal agreement, and argued that apart from the list of crops in the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) that operationalizes the CBD’s three objectives (conservation, sustainable use, fair and equitable benefit sharing), all resources remain under the scope of the CBD and now its Nagoya Protocol. The provision in Article 4(4) of the Nagoya Protocol reads: “…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 this Protocol, this Protocol does not apply for the Party or Parties to the specialized instrument in respect of the specific genetic resource covered by and for the purpose of the specialized instrument”.

In 2011 the FAO Commission on Genetic Resources for Food and Agriculture established the Ad Hoc Technical Working Group on Access and Benefit-Sharing for Genetic Resources for Food and Agriculture. Its is tasked to: (1) identify distinctive features of agricultural genetic resources requiring distinct access and benefit sharing solutions, (2) develop options to guide countries on national measures to accommodate these, and (3) suggest possible modalities for benefit sharing for genetic resources for food and agriculture, all in harmony with the CBD’s Nagoya Protocol.

The first meeting was held in the Arctic archipelago of Svalbard in Norway from 11 to 13 September 2012. This is also the location of the Global Seed Vault built into a frozen mountain about 1120 km from the North Pole. The vault’s construction has been funded by the Norwegian government and operational since 2008, and will receive about 200,000 seed accessions within the agreed framework of the ITPGR. The vault has a capacity of about 2 billion seeds.

At that meeting the European countries tried to set into motion an intergovernmental process to develop a “non-binding umbrella framework” to cover access and benefit sharing for genetic resources for food and agriculture. It was unsuccessful but also unrelenting.

Edward Hammond participated as an observer at the September meeting and contributed the article below that we are please to share with you. The article was first published in the south-north development monitor SUNS #7439 dated 18 September 2012.

With best wishes,

Third World Network


Europe wants genetic resources out of mandatory benefit sharing

17 September, Austin, USA (Edward Hammond) – A UN Food and Agriculture Organization (FAO) meeting in Norway has stalled a European effort to set into motion an intergovernmental process to develop a “non-binding umbrella framework” to cover access and benefit sharing for genetic resources for food and agriculture (GRFA). The effort found no support outside the European region.

Europe nevertheless seemed undeterred by the lack of endorsement of its proposed framework. It delayed adoption of the meeting report for several hours as it sought to introduce reference to a number of its regional positions, presumably for it to take up at future meetings. Canada, Iran, and Brazil worked to turn back the European proposal, in an alliance that reflected common opposition to the “umbrella framework” rather than agreement on an alternative.

Also proving difficult at the Working Group was the issue of consensus text supporting ratification and implementation of the Nagoya Protocol on Access and Benefit Sharing to the Convention on Biological Diversity (CBD). The issue was mainly handled on the margins of the meeting in discussions between the United States, Brazil, and others.

GRFA are a subset, called a “sector”, in FAO terminology, of the genetic resources covered by CBD. The precise scope of GRFA is undefined. GRFA are typically regarded, however, to include the “subsectors” of genetic resources for food and agriculture of cultivated plants, domesticated animals, and some forest and aquatic species. Also sometimes included are a particularly ill-defined group of microbial and invertebrate genetic resources.

(Microbes for food agriculture might, for example, include yogurt-making cultures or biological control agents. Invertebrates might also include some insects used as biocontrol agents, or arguably some insects used in agriculture, however, there are no agreed definitions.)

Of the four to six GRFA subsectors, only plant genetic resources for food and agriculture are presently covered by a specialized instrument, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) that was produced under the auspices of the FAO. FAO intergovernmental technical working groups (ITWGs) also work on forest and animal genetic resources, but these groups are not developing binding agreements like the ITPGRFA.

The Norway meeting was the first of the FAO Ad Hoc Technical Working Group on Access and Benefit-Sharing for Genetic Resources for Food and Agriculture, and took place from 11 to 13 September on the Arctic archipelago of Svalbard.

With 27 members, selected by region, as well as observer countries, the Working Group was formed by the FAO Commission on Genetic Resources for Food and Agriculture in 2011 to (1) identify distinctive features of agricultural genetic resources requiring distinct access and benefit sharing solutions, (2) develop options to guide countries on national measures to accommodate these, and (3) suggest possible modalities for benefit sharing for GRFA, all in harmony with the CBD’s Nagoya Protocol.

(The members are Cameroon, Eritrea, Togo, Tunisia, Zambia, Bangladesh, Bhutan, Indonesia, Laos, Thailand, Brazil, Chile, Ecuador, Guyana, Paraguay, Iran, Lebanon, Yemen, Norway, Spain, Switzerland, Netherlands, United Kingdom, Canada, the United States, Palau and Australia. Palau replaced the Cook Islands, whose delegate was unable to attend.)

On distinctive features of GRFA, the Working Group adopted the approach of identifying features that distinguish GRFA from other genetic resources, but only in a generalized fashion. Predictably, it was difficult to agree on text describing over 20 “distinctive” features that might apply to the multiple subsectors of GRFA, which agglomerate very different forms of life, from single celled organisms to farm animals.

In other words, in plainer English, it’s hard to come up with a list of features of genetic resources that might equally distinguish both a cow and a Bacillus thuringiensis microbe from other forms of non-agricultural genetic resources.

Several countries, including Iran and observer Namibia repeatedly raised concern that the features that the Working Group were describing as distinctive to food and agriculture were not at all unique to GRFA, and might just as easily be applied to other kinds of biodiversity.

For example, the Working Group discussed one of the distinctive features of GRFA as “the role of human management”. Namibia observed, however, that studies have increasingly documented that the biodiversity of even the “wildest” areas, such as the Amazon Basin, has been greatly influenced by a history of human intervention. Brazil (and Iran) noted that generation of “non-monetary benefits” wasn’t very unique to GRFA either, but that also was ultimately deemed a “distinctive feature”.

Similarly, when Canada proposed language about “well-defined and distinct communities of providers and users” being a distinctive feature of GRFA and its subsectors, Iran replied that this hardly seemed distinctive because there were defined and distinct communities using other types of genetic resources, such as infectious disease researchers using pathogens.

(Canada’s repeated proposals emphasizing the differences between subsectors of GRFA related to its tactical disagreements with Europe - that is, a desire to thwart Europe’s ambition to have unitary instrument covering all GRFA. They also relate to Canada’s desire to emphasize the importance of existing practices used by industry and others, in the face of pressure for adaptation to different ABS procedures under the Nagoya Protocol.)

A draft distinctive feature that proved complex was that titled “the nature of the innovation process”. A number of South countries felt the draft text was skewed toward the interest of the seed industry. Iran questioned the scientific soundness of language regarding products created with GRFA, and cautioned that the portrayal of the innovative process in the draft document was too narrow.

Togo introduced amendments (eventually successful) to refer to the role of indigenous and local communities (ILCs) in innovation. Spain sought to remove this reference, threatening “to come up with a long list of people” if Togo persisted in recognizing ILCs, although in the end it only added researchers and breeders. Togo replied (correctly), that in the CGRFA and CBD, the innovative role of communities had been recognized and did not see why this could not be the case at the Working Group. The US supported Spain in objecting.

Namibia, echoing Iran, recalled that sectors other than agriculture also innovate incrementally, and that while the draft text emphasized that the innovative process may require use of many specific genetic resources, others did not. “Many most valuable products come from specific GRFA,” the delegate noted.

Most of these discussions on innovation (and some others) were rendered moot when, after further consideration, the Working Group decided to drop the use of explanatory text to accompany the list of “distinctive features”. Even this less ambitious process took considerable time, and the Working Group’s planned consideration of the distinctive features of each of the subsectors of GRFA (plant, animal, forest, aquatic, and possibly microbial and invertebrate) was not possible. It was instead stated that some of the distinctive features applied to some subsectors but not to others. Thus, counter-intuitively, none of the “distinctive features” of GRFA were linked to specific subsectors.

Relationship with the Nagoya Protocol

In considering the later agenda items, approaches and modalities for access and benefit sharing for GRFA, relationships with the Nagoya Protocol also proved to be a thorny issue. The United States opposed language introduced by Zambia, including a friendly amendment from Brazil, which stated that the Working Group “Encourage[s] countries that have not done so to ratify or accede to the Nagoya Protocol as soon as possible and promote its full implementation, recognizing its importance to the international regime on access and benefit sharing.”

The US, which is not a Party to the CBD (which has 193 Parties), cannot ratify the Nagoya Protocol, and whose intentions toward it appear neutral at best, said that it “has a serious challenge accepting such language”. Canada and Brazil tried to mollify the US by proposing to drop language about implementing the Nagoya Protocol (because it has yet to enter into force). The US, however, stated that even encouraging ratification of the Protocol “would still present challenges”.

Brazil emphasized that it was important for the Working Group to make a statement recognizing of the role that the Nagoya Protocol plays in the international regime.

The discussion was moved to the margins of the meeting and, following talks between the US, Brazil, and others, the Working Group approved a compromise to “encourage countries to consider the option of ratifying or acceding to the Nagoya Protocol, taking into account its role in the international regime on access and benefit sharing”.

This weakened statement on the Protocol’s importance drew criticism when the Working Group went on to discuss the role of the CGRFA in development of national ABS regimes, an activity that is tightly linked with the CBD and, in particular, implementation of the Nagoya Protocol.

Whereas the US sought to minimize the Working Group’s endorsement of the Nagoya Protocol, it and a number of other Northern countries strongly promoted FAO’s involvement in development of national ABS regimes, and sought to ensure FAO’s presence with the CBD Secretariat whenever the latter discusses access and benefit sharing for GRFA at regional and national level meetings.

Canada largely agreed with the US, stating that the “special nature of GRFA is not always recognized, almost never recognized when countries develop ABS regimes,” and that it “Very much wants our Commission to be there when countries do this.” The United Kingdom also voiced its support for the US proposal.

(The FAO and CBD have already, in fact, developed a Joint Work Plan and a Memorandum of Cooperation. During this discussion, the CBD Secretariat representative stated that it is not presently offering technical legal assistance to countries on Nagoya Protocol implementation at the national or regional level. The ITPGRFA recalled its existing joint program on Treaty implementation with the CBD.)

Ultimately a compromise was worked out in which the Working Group requested the FAO Commission on GRFA “Secretariat to work with the CBD Secretariat to ensure the former’s active participation at regional and national level meetings...” The adopted language is ultimately mild and supports the recently signed Memorandum of Cooperation.

The discussion was not fully concluded, however, before several countries noted that the North’s enthusiasm for FAO involvement in national ABS actions on GRFA pursuant to the Nagoya Protocol seemingly contradicts its cool response to Zambia’s proposal for the Working Group to more strongly encourage the Protocol’s ratification and implementation.

As it was tasked by the Commission, the Secretariat prepared a full range of draft recommendations on modalities for access and benefit sharing (ABS) and CGRFA, ranging from awareness building to creation of a new international negotiating forum for an international agreement on ABS for GRFA. The stronger steps met little support from Working Group members. None supported the establishment of a new negotiation forum, most considering it “premature”.

A draft recommendation that the Secretariat “promote the development of voluntary codes of conduct, guidelines and best practices” for ABS and CGRFA also lacked support. Iran considered that recommending “promotion” went well beyond the group’s mandate. Bhutan noted that it was just beginning to grapple with the Nagoya Protocol and adding on development of specialized codes of conduct for various GRFA subsectors was too demanding at present for countries with limited means.

Brazil, supported by Bangladesh (speaking for the Asia Region), agreed with Bhutan that setting off a multi-level process of developing codes of conduct and other non-binding ABS documents for various GRFA subsectors was burdensome at this juncture, and both moved for the provision to simply be deleted.

This discussion became intertwined with a related provision in the Secretariat’s draft concerning development of model contractual clauses of exchange for GRFA.

The UK on behalf of the European Region, fought for work on codes of conduct and similar items, countering Bhutan, Brazil, and Bangladesh by saying that the work “can done by industry and trade associations”. Canada opposed promoting codes of conduct but supported their development, noting (more delicately than the UK) that its taxonomy institutions might offer interesting model contract clauses.

Iran proposed to delete the item altogether, while Brazil answered Europe by pointing out the growing lists of tasks for the Secretariat in the recommendations. Spain responded with an amendment to have the Secretary “invite” input of codes of conduct, etc., rather than tasking it with the job of gathering.

Australia expressed general support for codes of conduct, asking developing countries to see them in the context of developing a set of short, medium, and long terms options. (This was an idea that did not take root.)

The UK was keen for the information gathered to be distributed promptly, so that the CGRFA documents would be circulated prior to the first meeting of Parties of the Nagoya Protocol (50 ratifications are needed for the entry into force of the Protocol and there are currently 6, with 92 signatories). This language, however, did not find support from other regions.

Ultimately, recommendations were adopted for the Secretariat to gather information on existing practices of GRFA exchange (contractual clauses), codes of conduct, etc. for future consideration by the Commission and its Intergovernmental Technical Working Groups (on plant, animal, and forest genetic resources).

“Voluntary guidelines” on ABS

The Working Group’s penultimate recommendation is a request to the Secretary to prepare “draft elements for voluntary guidelines” for domestic legislative, administrative, and policy measures for ABS and GRFA, taking into account the information it gathers on clauses and codes of conduct and the ITPGRFA. Here again, the differences between Canada and Europe’s approach surfaced, the former favoring a subsector approach, while Europe prefers a single instrument. The resulting language, as was observed by Iran, is potentially confusing and does little to settle the debate.

The working sessions of the meeting seemed to be drawing to a close when the UK, on behalf of Europe, tabled a new recommendation “that the CGRFA develop a nonbinding umbrella framework for GRFA”. The move caught some countries off-guard, although Europe had alluded to it earlier.

[The European proposal reads:

“Recommends that the CGRFA develop a nonbinding umbrella framework for GRFA, including recognition of existing elements, reflecting the special features of GRFA in order:

  • to ensure continued availability of GRFA to satisfy basic human needs (and food security and sustainable agriculture development) with reference to Art 4 of the NP (Nagoya Protocol)
  • to facilitate continuous and enhanced exchange and use of GRFA; and
  • to maintain the intrinsic interlinkages of the three objectives of the CBD and the ITPGRFA.”

Article 4 of the Nagoya Protocol deals with relationship of the Protocol with international agreements and instruments”. ]

Australia professed puzzlement at the proposal, wondering where the ITGPRFA would fit into Europe’s proposal. Canada said it didn’t understand either, and that it saw no need for an umbrella framework.

The UK quickly offered to abandon the term “framework” in favor of calling the proposal one for a “map of subsectors” of GRFA. This prompted further confusion because the term “framework” has undertones of an international obligation (the politically-binding ABS system for influenza viruses at the World Health Organisation is titled a “framework”), particularly when associated with the purposeful language of the draft recommendation (see above). In contrast, the notion of mapping suggests much more modest information gathering.

It was thus unclear what Europe was proposing, and in the ambiguity other members of the Working Group had concerns. Bhutan asked what the end point was that Europe sought. Brazil had “dozens of questions”.

Switzerland moved to support a faltering UK saying that this was Europe’s idea for moving forward on modalities, as the Working Group was charged, and that it would enable “seeing where things are” and “finding gaps”.

Canada and Brazil agreed that the European proposal might be workable if the exercise were restricted to preparing a matrix of activities and removing the high-minded justifying language. Iran was content to remove it all and replace it with a sentence on the need to move forward. Namibia said that Switzerland’s suggestion that a gap analysis is needed is certainly premature, recalling that the Nagoya Protocol is in the process of ratification and that countries should to place efforts and faith into that process before looking for new holes to fill.

Further discussion centered on Europe’s preference, not supported elsewhere, to use the term “ABS measures”. Brazil in particular opposed, suggesting “initiatives”. The UK replied that for Europe’s proposal “initiatives is too small, but regime too big.” In the end, a relatively modest recommendation to “develop a matrix illustrating international practices, initiatives, and instruments of relevance” was adopted.

Again the meeting seemed to be at it close, save the adoption of its report. At this session, however, The Netherlands, speaking for Europe, renewed the region’s effort aimed at a unitary instrument to cover ABS for GRFA by requesting the inclusion of its group positions in the report.

The Netherlands’ request was not supported by other regions, for fear that the report approval process could degenerate into every region demanding the specifics of its position be reflected on every point. Nevertheless, Europe began inserting text into the meeting report reflecting its positions, above all on the umbrella framework. These amendments were not accepted by other regions. At an impasse, the meeting paused at Europe’s request.

Upon resumption, Brazil read a statement on behalf of the Group of 77 (developing countries grouping in the United Nations) insisting that the Working Group “avoid discussing proposals at adoption of the report that do not reflect agreement from the discussion.”

Europe, increasingly represented by Switzerland, then requested to submit further information on its positions to the Secretariat for compilation and distribution as an informational paper (INF document) to future meetings of the Commission and the Intergovernmental Technical Working Groups to which the meeting’s report will be forwarded. Namibia noted that if countries were to so submit their positions that perhaps all members of the Commission should be given the opportunity. It was also noted that the Working Group, in its working sessions, had requested no such document. It thus was decided that Europe’s information could be distributed as a “circular document”, a type which is not vetted by the Secretariat or which implies production at the request of a consensus of Member States.

Europe’s two long and lonely stands – at the end of the working sessions and at the adoption of the report (which wound up taking 6 hours) – certainly succeeded in drawing attention to the region’s position, and to its apparent dissatisfaction with the degree which the outcome reflected European priorities. Observers noted, however, that many of Europe’s positions were well reflected in the consensus, and that the region’s lengthy and stressful insistence at the end of the meeting was a tactical mistake in which it wasted substantial goodwill without any practical advance toward its goal of an umbrella framework.

The Working Group’ future has not been decided. Its recommendations will be forwarded to the Commission’s Intergovernmental Technical Working Groups on Plant (November 2012), Forest (January 2013), and Animal (November 2012) genetic resources as well as the 14thSession of the Commission (April 2013). As there are no technical working groups for aquatic, microbial, or invertebrate genetic resources for food and agriculture (and, indeed, these areas lack basic definitions), the implications of the Working Group’s recommendations for those subsectors will presumably be discussed by the entire Commission. It will be up to the Commission to determine any need for the Working Group to meet again.

Meanwhile the Intergovernmental Committee on the Nagoya Protocol has met twice and given its outstanding unfinished work, the Committee will seek a mandate for a third meeting at the upcoming Conference of Parties to the CBD in October in Hyderabad, India. Throughout the Protocol negotiations from 2005 to 2010 the European countries have sought unsuccessfully to carve out GRFA on the basis of their distinctive nature and that FAO be the home for any international instrument. The North has always been resistant to an internationally legally binding ABS agreement while the South has pushed for this, with an effective compliance mechanism. As CBD Parties prepare for the Protocol’s entry into force and implementation, it is crucial that processes such as the one at the FAO does not undermine the Protocol and weaken global regulation that is sorely needed to prevent biopiracy of genetic resources and associated traditional knowledge.