TWN Info Service on Climate Change (Nov10/02)
Mixed reactions on new access and benefit sharing
Beijing, 2 November (Chee Yoke Ling) – The palpable relief of adopting a number of major decisions at the recently concluded meeting of Parties to the Convention on Biological Diversity (CBD) was accompanied by lingering doubts over the new treaty on access and benefit sharing.
After almost five years of work launched officially in 2004 and a marathon negotiation session lasting 15 days and most nights prior to (13-15 October) and during the 10th meeting of the CBD Conference of Parties (18 to 29 October) in Nagoya, Japan the “Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization” was adopted.
Most government delegates said that the Protocol
is imperfect but that they could “live with it”.
The Nagoya meeting had three major inter-linked components: the Nagoya Protocol on Access and Benefit Sharing (ABS); the revised and updated Strategic Plan to guide international and national efforts to meet the three CBD objectives including a revised biodiversity target for the period 2011-2020; and the implementation plan for the Strategy for Resource Mobilization in support of the achievement of the CBD objectives adopted by COP 9 in Bonn, Germany in 2008. (Please see SUNS # 7031 of 2 November 2010.)
(The three CBD objectives are: conservation of biodiversity, sustainable use of the components of biodiversity, and the fair and equitable sharing of benefits arising from the utilization of such components.)
Delegates at the Nagoya COP 10 were shadowed by
a possible “
The President of the COP 10, the Minister of the Environment of Japan, Ryu Matsumoto was visibly relieved when his gavel came down to adopt the 3 decisions after more than two hours of post-midnight plenary discussion.
COP 10 adopted the Nagoya Protocol on ABS and established
an Open-ended Intergovernmental Committee to prepare for the first meeting
of the Parties to the Protocol. The Committee will meet on 6-10 June
2011 and 23-27 April 2012. The Protocol will be open for signature by
Governments at the UN Headquarters in
Fernando Casas (
However, at the closing plenary past midnight into 30 October, Bolivia, Cuba, Ecuador and Venezuela expressed their deep disappointment over the ABS Protocol and put on record their rejection of the document even though they decided not to block its adoption.
(Among the decisions that were finally adopted, one relates to “Engagement with Business” and there were several side events with corporations involved, including a few coorganised with the CBD secretariat and the Global Environment Facility.)
The chief negotiator of
Prior to the COP 10 meeting, the Interregional Negotiating Committee (ING) convened for 3 days on 13-15 October that extended into the morning of the fourth day. This Committee was set up by the Open-ended Working Group on ABS early this year to enter into full negotiations. The mandate of the Open-ended Working Group and with it the ING ended on 16 October.
The opening COP 10 plenary on 18 October proceeded to establish the Informal Consultative Group (ICG) that was to complete its work to finalise the ABS protocol by 22 October and this was further extended twice due to the wide divergence between developing and developed countries on key issues of the protocol.
On 25 October the Co-Chairs reported to the COP 10 plenary on progress made and the outstanding unresolved issues. Yet another deadline of 28 October was given but negotiations reached a deadlock.
At this point the COP 10 Presidency convened a
“facilitating group”. The European Union,
On 28 October, the second last day of the COP 10, negotiations went off the public track, with many negotiators themselves at a loss as to what happening. Frustration and speculation abound in the corridors. Compromise text was floated on the unresolved issues of scope and compliance but this was again not successful.
On the last day, 29 October, the COP 10 Presidency took over the negotiations, taking them to a ministerial level. However, the chief negotiators of the countries concerned were in attendance, according to those involved.
The unresolved issues were essentially about the
scope of the Protocol and the strength and effectiveness of the compliance
mechanism and a “balance” was finally struck by the COP 10 Presidency
It should be noted that by this time, a considerable part of the Protocol had already been agreed to by Parties in the intergovernmental setting, and the compromise presented by the COP 10 President worked with the language that were in brackets. The new addition was the multilateral fund proposed by the Africa Group.
On scope, there were several aspects.
First, the definition of the terms “utilization of genetic resources” (the CBD requires benefit sharing for the commercial and other utilization of genetic resources) and “derivatives” of genetic resources took up considerable time over the past year. Developed countries wanted a narrow definition and developing countries the opposite. The final definition is open to interpretation.
According to Hartmut Meyer, a scientist who participated in the ABS negotiations for the past 5 years and was also a participant at the experts workshop convened by the CBD secretariat on concepts, terms and definitions of the Protocol in 2009, it would seem that the access to purified extracts that do not contain DNA any longer is not under the Protocol.
However, Meyer said that access to extracts that contain DNA and to any other biological material for research and development purposes using all molecules of the material are under the Protocol. All these extracts are important for the Protocol because at least 90% of all known biopiracy cases involve these substances.
Such knowledge continues to be freely accessed
and the long available therapeutic formulations and consequential products
are regularly patented in developed countries as “inventions” with “novelty”
value. This was in Article 9.5 of the draft Protocol until late 28 October,
but did not make it to the final document. A final attempt by
However the Preamble to the Protocol does recognize “the unique circumstances where traditional knowledge associated with genetic resources is held in countries, which may be oral, documented or in other forms, reflecting a rich cultural heritage relevant for conservation and sustainable use of biological diversity.”
Thirdly, the acquisition and use of genetic resources before the entry into force of the new ABS Protocol was also debated. Developing countries argued for benefit sharing of continuing and new uses of such genetic resources even though the genetic resources were obtained prior to the entry into force of the Protocol and now reside in public and private ex situ collections mostly in developed countries.
Fourthly, benefits derived from resources collected
in areas outside national jurisdiction such as the high seas and the
The Africa Group proposed a multilateral fund for the benefits that cannot be linked to a specific country of origin or providing country under the CBD. The Protocol now contains the following provision in Article 7bis:
“Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilisation of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally.”
However there is no time frame for this to be established; the issue will be taken up at the second meeting of the preparatory Intergovernmental Committee for the Protocol in April 2012.
Fifthly, pathogens (viruses) used to develop vaccines and diagnostic kits were another highly contentious issue. Developed countries in various degrees wanted all these to be excluded from the Protocol, which according to developing countries would result in an empty and meaningless Protocol.
· Competent national authority in the user country;
· Research institutions subject to public funding;
· Entities publishing research results relating to the utilization of genetic resources;
· Intellectual property examination/Patent and plant variety offices;
· Authorities providing regulatory or marketing approval of products derived from genetic resources/resulting from the use of genetic resources or its derivatives]
· Indigenous and local communities, including their relevant competent authorities, that may grant access to traditional associated with genetic resources.
Although traditional knowledge and the rights of indigenous and local communities have been given stronger recognition in the Protocol compared to the CBD provisions, the compliance provisions on checkpoints do not cover traditional knowledge.
Many provisions are qualified with “as appropriate” and “where applicable” leaving much to be interpreted at the national implementation level.
The future of the Protocol and its impact in preventing biopiracy and ensuring that the CBD objective of fair and equitable benefit sharing will continue to be fought out in the coming years.+