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TWN Info Service on Biodiversity and Traditional Knowledge (Aug15/01)
7 August 2015
Third World Network

Consensus on Post-2015 development agenda struck behind closed doors

- Compromises in the final 48 hours -

by Bhumika Muchhala, Ranja Sengupta and Chee Yoke Ling
Third World Network (6 August 2015)

(Note: The final outcome document of the post-2015 development agenda has not yet been officially published by the UN Secretariat. This article is based on the last published text of the outcome document of late Saturday night, 1 August 2015.  A full analysis will be made by Third World Network when the text is officially available.)

After over eight months of intergovernmental negotiations in New York and numerous iterations of an outcome document, consensus was reached on the United Nations’ post-2015 development agenda, titled “Transforming Our World: The 2030 Agenda”, on the evening of Sunday 2 August.

The talks were scheduled for 20 to 31 July and with continuing differences over several key issues, almost non-stop closed-door negotiations stretched into the weekend. The finalized text will be adopted formally at a Summit on 25-27 September during this year’s UN General Assembly session.

The post-2015 agenda’s outcome document consists, at its center, the Sustainable Development Goals (which are built on 17 goals and 169 targets produced by the UN Open Working Group in 2013-2014), as well as a political declaration, a chapter on means of implementation, and a chapter on conclusion on follow-up and review. Together, this agenda is to serve as a foundation for international development cooperation for a period of 15 years, coming into effect on September 2015 and expiring in September 2030.

The framework of the Sustainable Development Goals (SDGs) and the post-2015 development agenda is the first of its kind to be characterized by universality, where all countries both developing and developed take on actions and steps toward sustainable development. This distinguishes the SDGs from the Millennium Development Goals (MDGs) which were essentially a donor-recipient model.

The Rio Declaration on Environment and Development as well as Agenda 21 adopted by Heads of States and Governments in 1992 contained principles, commitments and actions for developed and developing countries. However, the MDGs reduced these and subsequent internationally agreed action plans, including on social development and women’s rights, into limited goals under which developed countries’ primary role was provider of official development assistance (ODA).  The obligations of developed countries related to new and additional financing, technology transfer, reform of the global economic architecture and their own domestic actions (such as consumption and lifestyle transformation) receded. Universality thus became a key principle for the post-2015 development agenda.

The SDGs and the post-2015 agenda are also defined by a foundation of three indivisible and interlinked pillars of economic, social and environmental issues that were first endorsed at the highest political level in Rio 1992. The post-2015 agenda is to operate on international, regional and national levels.

However, during the day on Sunday 2 August, the final version of the text was significantly altered outside of plenary and behind closed doors, where only Member States were allowed, and that too only the key negotiators and Ambassadors. Preceding the acceptance of the document, this altered text was distributed in hard copy to everyone physically present at the plenary. However, at the time of writing this hard copy has not yet been made available in soft copy nor has it been published on the UN website.

While the post-2015 agenda and the SDG framework contains numerous constructive gains in issues, language and resolutions, the 11th hour changes carry some adverse implications. For example, there are changes that undermine the legally binding Convention on Biological Diversity that enjoys almost universal membership (with the United States of America being the prominent non-Party) and the Convention’s Nagoya Protocol on access and benefit sharing. The changes also selectively import some of the most regressive text from the Addis Ababa outcome document of the Third International Conference on Financing for Development (FfD), weakens previous agreed language in the text on human rights and through its opaque process is not healthy for multilateralism.

It is indeed unfortunate that in the pressure-cooker atmosphere of negotiations to produce an agreed outcome, the final hours of the post-2015 process reflected some of the negative precedents in trade and in recent years climate negotiations where alarming compromises are ultimately struck by small numbers of countries in a non-participatory and untransparent manner.

What is particularly poignant about what transpired over the weekend of Friday 31 July to Sunday 2 August is that the back-room discussions were a stark contrast to the integrity of the process in which the SDGs were formulated. The SDGs were constructed in good faith negotiations that began in March 2013 and concluded in July 2014, and the SDG outcome reflected developing countries priorities and views. It was, by and large, a transparent, inclusive and legitimate process where the substantive formulation of targets and goals occurred in open plenary.

This was not the case in the last few days and hours of the post-2015 development agenda.  Many talks were carried out behind closed doors and in small groups.  The firmly drawn red line of the Group of 77 and China of 134 developing countries to not re-open the SDG text to re-negotiations was violated by the revision of three targets, comprising of one substantial change and one relatively minor change.

However, prior to this last weekend, developing countries were able to ensure that the Addis Ababa outcome document, which by and large reflects the agenda of developed countries, is not annexed to the post-2015 development agenda text. Indeed, this was the main battle fought in plenary in the last two weeks of New York negotiations from 20 July – 2 August, following the Addis Ababa FfD conference (13 – 16 July). The FfD process, both before and during Addis Ababa was also marked by bad faith negotiations in several respects. The concern was that the compromised Addis Ababa outcome document would undermine the more comprehensive means of implementation provisions necessary for the post-2015 agenda as well as the distinctness and independence of the FfD process.

However, revisions to Paragraph 62 (explained below) in the post-2015 outcome document unravel, to a significant degree, the determined intention of developing countries to keep the Addis Ababa outcome document relatively detached from the post-2015 development agenda and the SDG framework.

Common but differentiated responsibilities reaffirmed

A core and foundational red line for developing countries is the principle of common but differentiated responsibilities (CBDR). Throughout both the SDG and post-2015 negotiations, the G77 and China stressed that CBDR is applicable to the entire sustainable development agenda, that a functional set of MoI required that developed countries take the lead in providing financial resources, technology transfer and capacity building and that the implementation of the goals while being universal is also differentiated according to varying levels and realities of national development, capacity and capability.

CBDR did manage to manifest itself in paragraph 12 of the text till the end. It reads “We reaffirm all the principles of the Rio Declaration on Environment and Development, including, inter alia, the principle of common but differentiated responsibilities, as set out in principle 7 thereof”.

However, some observers are concerned that it is potentially compromised by referencing Rio Principle 7 that developed countries interpret narrowly to confine CBDR to environmental damage.  Developing countries had argued that in an indivisible and interlinked SDG framework of economic, social and environment, CBDR must be applicable without ambiguity. In other words, CBDR should also apply to economic and social goals and targets. Accordingly they did not want reference to Principle 7 that could open the door to ambiguity if the developed countries’ narrow interpretation prevailed.

Nonetheless, paragraph 12 clearly lays down CBDR as an accepted underlying principle for the post-2015 development agenda. And since Principle 7 clearly talks of historical responsibilities and sustainable development, the application of CBDR to the entire agenda based on Rio Principle 7 will be a matter of considerable interpretation.

11th hour alterations to the text

Regression on benefit sharing from use of biodiversity

In SDG target 2.5 the word “ensure” was replaced with “promote” in the sentence: “…and ensure [now: promote] access to and fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge, as internationally agreed.”

The same ‘tweak’ was made to SDG target 15.6, with the addition of “As internationally agreed” at the beginning of the sentence.  It now reads: “As internationally agreed, promote fair and equitable sharing of the benefits arising from the utilization of genetic resources and promote appropriate access to such resources.”

This demand was reportedly made by the United States on the morning of Sunday 2 August as a new and sudden red line, never announced by the US delegation in plenary. According to an unofficial source, the US was not willing to accept the outcome without this amendment. A large number of G77 and China countries, reportedly including Indonesia, Peru, Ecuador, Colombia and Mexico balked at this pressure campaign and presented arguments rejecting the US ultimatum. These countries reportedly recalled the agreements and language made in the Convention on Biological Diversity (CBD) and its Nagoya Protocol.

This alteration is alarming in that it dilutes language in the legally binding CBD and Nagoya Protocol that requires Parties to those treaties to take mandatory measures for benefit sharing.

The CBD’s Article 15(7) states: “Each contracting Party shall take legislative, administrative or policy measures, as appropriate, …with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources …” (emphasis added).

The CBD stipulates that the benefits include technology transfer.

The Nagoya Protocol that was concluded under the CBD in 2010 provides for the further implementation of access and benefit sharing. Article 1 of the Nagoya Protocol reads, “The objective of this Protocol is the fair and equitable sharing of the benefits arising from the utilization of genetic resources …”  There is no notion of “promote”.

Article 5(1) states: “In accordance with Article 15, paragraphs 3 and 7 of the Convention, benefits arising from the utilization of genetic resources as well as subsequent applications and commercialization shall be shared in a fair and equitable way with the Party providing such resources …” (emphasis added).

The Protocol goes further to oblige each Party to take legislative, administrative or policy measures “with the aim to ensure” benefit sharing when genetic resources held by indigenous peoples and local communities are utilized.

By replacing “ensure” with “promote” there is the adverse potential of developed countries seeking to weaken their legal commitments even further. The irony is that the US is not a Party to the CBD but yet succeeded at the last moment to impose their regressive position – as the country whose corporations and research institutions are the largest users of genetic resources from the rest of the world, especially developing countries.

Adverse debt language

With regard to debt language in the post-2015 agenda, paragraph 69 in the text reflected fairly progressive language, such as “We recognize the need to assist developing countries in attaining long-term debt sustainability through coordinated policies aimed at fostering debt financing, debt relief, debt restructuring and sound debt management, as appropriate.”

By Sunday 2 August afternoon, the following sentence from paragraph 97 in the Addis Ababa outcome document was inserted at the pressure of developed countries: “Maintaining sustainable debt levels is the responsibility of the borrowing countries; however we acknowledge that lenders also have a responsibility to lend in a way that does not undermine a country's debt sustainability."

This contentious language from the Addis Ababa outcome erroneously places the primary “responsibility” of debt burdens on borrowing countries without the necessary emphasis on the unfair and unfavourable aspects of the international financial system, which includes austerity policies, a lack of regulation over volatile and speculative short-term capital flows, and an overall structural dependency particularly in the least developed countries.

This addition is one of the most regressive setbacks of the Addis Ababa FfD conference compared to the notion of co-responsibility between lenders and borrowers that was present in the text of previous FfD agreements from Monterrey in 2002 and Doha in 2008. Unfortunately, this regressive language that explicitly faults borrowers for their debt burdens is now part and parcel of the post-2015 agenda text.

It is precisely such harmful language that was driving the developing countries to ensure that the Addis Ababa outcome document did not become an annex to the post-2015 agenda. Developed countries kept insisting, until the last hour, on annexing the Addis outcome as their firm red line.

In this light, the selective importation of particular Addis language is a compromise that developing countries had to accept. While several other textual imports from the Addis Ababa outcome were also proposed by developed countries in the final hours, such as removing reference to “policy space,” for example, and were eventually not carried through, the specific debt language that was included is particularly regressive.

Influence of Addis Ababa outcome strengthened

While the Addis Ababa outcome is not annexed to the post-2015 development agenda, recent drafts had already proposed two significant insertions of the word “integral,” in the context that the Addis outcome “…is an integral part of the 2030 Agenda for sustainable development.”

Subsequently, on Sunday 2 August afternoon a brand new sentence was inserted into paragraph 62 of the Means of Implementation (MoI) chapter of the post-2015 agenda text through ad hoc and closed-door modalities. The new sentence reads, “The Addis Ababa Action Agenda supports, complements and helps contextualize the 2030 Agenda's means of implementation targets.”

The text of paragraph 19 in the Addis outcome, which developing countries supported, states that the post-2015 development agenda is “supported by the concrete policies and actions” in the Addis outcome. Paragraph 19 allowed for some degree of ambiguity. The new sentence emboldens the influence of the Addis outcome through the word “contextualize.” In essence, there is a concerted effort to reinterpret the MoI chapter of the post-2015 agenda under the Addis Ababa outcome document.

Dilution of discrimination and human rights language

Paragraph 19 of the post-2015 agenda cemented critical language on human rights, discrimination and fundamental freedoms. Up until 31 July the paragraph was progressive and expansive. It read, “This is an Agenda which seeks to respect, protect and fulfill all human rights. It will work to ensure that human rights and fundamental freedoms are enjoyed without discrimination on grounds of race, ethnicity, colour, sex, age, language, religion, culture, migration status, political or other opinion, national or social origin, economic situation, birth, disability or other status.

However, between 31 July and 2 August, both the African and Arab Groups called for the removal of this paragraph, or at the very least to heavily revise it. A compromise was made to revert to a copy-paste of paragraph 9 from the Rio+20 outcome document of June 2012. The Rio+20 outcome document is not as strong as the previous version.

For example, the Rio+20 paragraph replaces the phrase, “respect, protect and fulfill” with “respect, protect and promote.” The word “promote” is not as comprehensive and correct in human rights terminology as the word “fulfill” is.  The Rio+20 paragraph also fails to mention ‘discrimination’ by name, nor does it include ethnicity, migration status, culture, economic situation or age as a protected status. The one addition, however, is the word “property,” and the paragraph at least maintains the term “other status.”

An interesting note is that the Co-Facilitator Ambassador Macharia Kamau of Kenya called these significant regressions “small language editorial issues.”

A few positive amendments

Perhaps the most celebrated positive ‘wins’ of the 1August outcome document is the clearer enunciation and the inclusion of details on the agreed Technology Facilitation Mechanism (TFM) in the MoI chapter, which is to provide technological development in support of achieving the SDGs. This had been a clarion call of developing countries. The TFM is potentially a historical breakthrough with regard to both MoI and FfD, particularly as the and the work of the TFM cuts across both these frameworks.

Paragraph 70 outlines the TFM and reads "We hereby launch a Technology Facilitation Mechanism in order to support the sustainable development goals. The Technology Facilitation Mechanism will be based on a multi-stakeholder collaboration between Member States, civil society, private sector, scientific community, United Nations entities and other stakeholders and will be composed of: a United Nations Interagency Task Team on Science, Technology and Innovation for the SDGs, a collaborative Multistakeholder Forum on Science, Technology and Innovation for the SDGs and an on-line platform".  

Further details, for example on the United Nations Inter-agency Task Team, the online platform, the Multi-stakeholder Forum on Science Technology and Innovation and on the relationship of the Forum with the High Level Political Forum (established by Rio+20 to replace the Commission on Sustainable Development), have been added in this last version through 4 additional bullet points.

The first part of paragraph 34 in the post-2015 agenda addresses peace and security, rule of law, good governance and access to justice; the second part addresses colonial and foreign occupation. The change from “people” to “peoples” is a substantive improvement.

The particular sentence reads, “We reiterate our commitment to take further effective measures and actions, in conformity with international law, to remove the obstacles to the full realization of the right of self-determination of people(s) living under colonial and foreign occupation, which continue to adversely affect their economic and social development as well as their environment.”

The change is substantive because the term “peoples” is the normative word for recognising self-determination. Indigenous peoples as well as peoples under foreign occupation have historically fought for this term in UN conferences and negotiations.

The current paragraph 29 that refers to refraining from applying unilateral measures has been a matter of some debate in the recent period. The G77 and China had consistently asked for the retention of this paragraph and in spite of severe opposition from the US, this paragraph has survived. It reads  "States are strongly urged to refrain from promulgating and applying any unilateral economic, financial or trade measures not in accordance with international law and the Charter of the United Nations that impede the full achievement of economic and social development, particularly in developing countries".

Climate change – UNFCCC integrity maintained

The last two days also saw hectic negotiations on climate change. In the 30 July draft, there was an alternative suggestion, numbered 31.alt, which was hazy at best and could have undermined the positions of developing countries in the climate talks for example by not including reference to adaptation. There were also inconsistencies with decisions of the Conference of Parties (COP) to the UN Framework Convention on Climate Change (UNFCCC). The US for one had pushed hard for this language. However in the last hours compromise language was found and is reflected in paragraphs 30 and 31 in the text (quoted below). While this language is not optimum for developing countries, it is an improvement on 31.alt of the 30 July text.

However the specific mention of CBDR in the context of climate change as suggested in the 30 July version was left out in this formulation. This is in spite of the fact that CBDR is a legal principle in the UNFCCC and reaffirmed through decisions taken by the COP including the 2014 decision of the COP meeting in Lima, Peru. Nevertheless, in spite of no specific mention in paragraph 30, CBDR clearly applies to climate since it is part and parcel of the UNFCCC and is reaffirmed in paragraph 12 as a general principle.

Paragraph 30 now reads "We acknowledge that the UNFCCC is the primary international, intergovernmental forum for negotiating the global response to climate change. We are determined to address decisively the threat posed by climate change and environmental degradation. The global nature of climate change calls for the widest possible international cooperation aimed at accelerating the reduction of global greenhouse gas emissions and addressing adaptation to the adverse impacts of climate change. We note with grave concern the significant gap between the aggregate effect of Parties’ mitigation pledges in terms of global annual emissions of greenhouse gases by 2020 and aggregate emission pathways consistent with having a likely chance of holding the increase in global average temperature below 2 ฐC or 1.5 ฐC above pre-industrial levels".

Another additional Para no 31 on climate change reads "Looking ahead to the COP21 conference in Paris in December, we underscore the commitment of all States to work for an ambitious and universal climate agreement. We reaffirm that the protocol, another legal instrument or agreed outcome with legal force under the Convention applicable to all Parties shall address in a balanced manner, inter alia, mitigation, adaptation, finance, technology development and transfer, and capacity-building, and transparency of action and support".

Essentially, G77 and China succeeded in ensuring consistency with the UNFCCC decisions and mandate for ongoing negotiations so that the post-2015 outcome document would not pre-empt or undermine the ongoing climate talks.

Some other compromises during the final negotiations

Despite attempts in the late hours of Saturday 1 August to do away with reference to one of the most vital concepts for developing countries, that of policy space, it is still mentioned twice in paragraph 44 (related to international financial institutions and governance reform) and in paragraph 63 (related to poverty eradication). However, paragraph 63 qualifies policy space with the same language as that of paragraph 9 of the Addis Ababa outcome document: “…while remaining consistent with relevant international rules and commitments.”

This seems to negate the very point of policy space, which is to address the very “international rules and commitments” that constrain the ability of a state to formulate and carry out development-oriented policies and pathways. 

Member states express last thoughts at adoption

Before the strike of the gavel by the two Co-Facilitators of the post-2015 process, Ambassador Macharia Kamau of Kenya and Ambassador David Donoghue of Ireland, several Member States as well as the UN Secretariat voiced their parting thoughts. Some even articulated resounding concerns.

The UN Secretariat kicked off the adoption plenary by saying that a two-stage approval in the General Assembly will take place after this first adoption by member states. The current 69th session of the General Assembly will agree to refer to the agreed outcome document, and the final step is the adoption of the document at the Post-2015 summit in late September itself. Two formal meetings of the Assembly, at the 69th session and at the 70th session, will take place. With regard to the explanation of the vote, each Member State has the right to vote.

Informal processes and reservations of this stage will not form part of the official record of the summary (of the negotiations).

(Reservations can be expressed at the UNGA session and those will be on record.)

The G77 said that despite protracted negotiations, its membership has worked in good faith to address the critical obstacles to global development and poverty eradication. The new inclusion of land-locked developing countries in target 7.b was welcomed by the Group. In a sense, the Co-Facilitators have been like magicians, making things appear whenever they want and disappear when they wish it to, said the G77.

The Group said further that the focus of the UN will now finally move from negotiations to ensuring that over the next 15 years the international community works together nationally and globally to deliver on sustainable development.

The G77 noted that the amount of work Member States have just completed is amazing. As Nelson Mandela has said, “It is always impossible until it is done.”  On that note, the G77 declared that its membership is ready to adopt the outcome document of the post-2015 development agenda.

A statement was delivered by Mexico on behalf of a grouping of diverse developing countries: Bolivia, Brazil, Colombia, Costa Rica, Ecuador, India, Indonesia, Jamaica, Mexico, Nicaragua, Peru, the Philippines and Trinidad and Tobago.  These countries expressed their concern on the amendments carried out in targets 2.5 and 15.6 under the SDGs Chapter. They said that both targets 2.5 and 15.6 should and could have been addressed without necessarily making a major substantive change to the targets, which have been extensively discussed and agreed by consensus at the OWG on SDGs and endorsed by the UN General Assembly Resolution.

These two targets are very important to strengthen and reflect the international commitment to implement fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources as stipulated in the Nagoya Protocol. For Member States that are not parties to the Nagoya Protocol, the addition of “as internationally agreed” at the end of target 15.6 would have been sufficient.  In this light, these countries fervently asserted their understanding that under targets 2.5 and 15.6 as revised in the final outcome document of the post-2015 development agenda, the commitment to ensure the implementation of the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and associated traditional knowledge will not be weakened.

Article 1 of the Protocol of Nagoya states that “[t]he objective of this Protocol is the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components.”

At a later stage, this group of countries plans to request that this statement and understanding on these targets are formally noted in the General Assembly records.

The Least Developed Countries (LDC) groupsaid they will not accept any further change that undermines the focus of the post-2015 development agenda from LDCs. The LDC group said they held six ministerial meetings both here in NY and in many LDC countries to prepare for the post-2015 negotiations. They said many of their views and position were incorporated into the SDGs and they were formulated through the Open Working Group in an inclusive and participatory manner.

The LDCs said they undertook rigorous preparation for the SDGs and our contributions were substantive, backed by facts and figures as well as legislative mandates. The special value of the SDGs for the LDCs was in the formulation of setting the right emphasis for sustainable development by holding up the importance of LDC priorities.

The LDC group also recognised the valuable contributions of the Office of the High Representative for LDCs, LLDCs and SIDs, as well as major groups and stakeholders who provided LDCs with evidence-based and very relevant proposals that enriched their demands for the hope of opening up new horizons for people in LDCs and to reflect LDC aspirations for a just and equitable world.

Brazil said that they would have preferred more progressive language on human rights. Nevertheless the post-2015 agenda is a people-centered document even if it has not captured everything and everyone. Brazil highlighted that although the text does not mention lesbian, gay, bisexual, transgender and intersex (LGBTI) people, the implementation of the post-2015 agenda will include all of the LGBTI community, so that the core principle of leaving no one behind can find its true meaning.

Brazil emphasized that the universality of the SDGs is a breakthrough, one that makes differentiation all the more relevant in light of CBDR, a cherished principle for developing countries and an integral part of the UN framework to which all Member States are now committed. It added that the climate change paragraph endorses a political commitment from Member States without prejudging the outcome at COP in Paris.

Last but not least, Brazil celebrated the progress made through the establishment of a Technology Facilitation Mechanism, which it said is a small breakthrough in and of itself, and presents a strong initiative for the UN.

Going against the grain of most Member States, Nigeria said the post-2015 document does not give the UN any right to mandate human rights around sexual orientation and gender identity. There is no consensus, Nigeria clarified, around paragraph 19 on human rights.

The Philippines said it recalls the 1948 Universal Declaration on Human Rights, as well as the human rights of all groups of people, and that therefore paragraph 19 is very important.

Norway said that the spirit of compromise going forward is very encouraging.

However, new challenges await in the next phase of formulating the indicators for the SDGs, a process which is already experiencing significant challenges in reflecting the priorities of all Member States.

Despite the 11th hour alternations to the text, and the many imperfections and shortfalls, there is still a lot in the SDGs and the post-2015 development agenda outcome document overall that we can all work with over the next 15 years. +

 


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