TWN Info Service on WTO and Trade Issues (Nov09/09)
13 November 2009
Third World Network

International negotiations to prevent bio-piracy resume
Published in SUNS #6813 dated 12 November 2009

Montreal, 11 Nov (Chee Yoke Ling) -- Member countries of the United Nations  Convention on Biological Diversity (CBD) are meeting in Montreal from 9 to 15 November to resume negotiations on the International Regime on Access and Benefit-Sharing, with prevention of bio-piracy as a major goal.

There is a growing sense of urgency as there will be only one more week of negotiations in March 2010 before the CBD Conference of Parties (COP) meets in October 2010 to adopt the International Regime that aims at ensuring the fair and equitable sharing of benefits arising from the use of biological resources.

These negotiations were launched at the insistence of developing countries because of the continued lack of implementation of the CBD's third objective, i. e. the fair and equitable sharing of benefits arising from the use of biological resources. On the contrary, concerns over bio-piracy have grown since the CBD entered into force in 1994.

After four years of talks and several expert groups meetings, there is still no agreement on the nature of the International Regime (legally binding or non-legally binding or a mix of the two; one single instrument or a number of instruments).

Developing countries (the 17-member group of Like Minded Megadiverse Countries or LMMC, the African Group and the group of Latin American and Caribbean countries) want to have a single legally binding instrument under the CBD. The LMMC explicitly calls it a Protocol.

At Tuesday morning's plenary, a new grouping of like-minded Asia Pacific countries announced its formation, and they too support a single legally binding instrument.

"Thus far, countries from the Asia-Pacific region have been functioning under an official UN grouping - the Asia Pacific Group, a large group which is rather unique in that it consists of both developed and developing countries. We are now entering a crucial stage of the negotiations and developing countries from the Asia Pacific region wish to play an active role in these negotiations. Hence, they have felt the imperative need to discuss and address their commonality of interests through this newly created Like Minded Asia Pacific Group," said Gurdial Singh Nijar of Malaysia, who spoke for the new group.

He added that the group will "work closely with other developing countries organized as the LMMC, GRULAC and the African Group".

(The Asia Pacific Regional Group has not been an active collective participant in the negotiations due to fundamental differences between developing and developed countries, especially Japan.)

Developed countries have been resistant to a single legally binding instrument and while some countries now indicate that they may consider some form of legal binding nature, views differ in terms of one single instrument or a number of instruments (including existing ones). Some developed countries indicate willingness to consider a combination of binding and non-binding components.

Canada, Japan and New Zealand still display basic reluctance for a legally binding instrument.

In the opening plenary of the 8th meeting of the Ad Hoc Open-ended Working Group on Access and Benefit Sharing on Monday, co-chair Tim Hodges of Canada said that from the perspective of the co-chairs (himself and Fernando Casas of Colombia), this meeting is "the most important meeting in the history of this Working Group".

In a scenario note dated 28 October for the Montreal meeting, the co-chairs reaffirmed their "commitment made at the outset of our tenure to transparency, openness, predictability and responsiveness".

The mandate to negotiate the International Regime on access and benefit sharing (ABS) was adopted by CBD Parties in May 2004 and the regime is scheduled to be adopted in Nagoya, Japan in October 2010.

"This is an extraordinary meeting; it is not just a meeting, it is the meeting where postponing action is not an option," said Jochen Flasbarth of Germany, current Presidency of the Conference of the Parties.

[The Conference of the Parties is the highest decision-making body of the CBD, and convenes every two years to adopt decisions. There is almost universal UN membership of the CBD except for the United States, Andorra and the Holy See that are not Parties.]

The week's work will focus on the negotiation of operative text on traditional knowledge associated with genetic resources, capacity building, compliance (with the regime), fair and equitable benefit-sharing (arising from the use of genetic resources), as well as access to genetic resources. These are components of the international regime to be negotiated in a related but distinct step from the nature of the regime.

The Paris session produced a heavily bracketed negotiation text, indicating lack of consensus, on the issues of objective, scope, fair and equitable benefit-sharing, access and compliance. The current Montreal meeting will receive additional proposals building on the Paris text, for actual negotiations.

Meanwhile, on Tuesday, two non-papers covering operative text submitted by Parties and compiled for the first time, on traditional knowledge associated with genetic resources, and on capacity building were the basis for work in two separate contact groups.
On the exercise of clarifying the nature of the International Regime, co-chairs Fernando Casas and Tim Hodges will prepare a text reflecting the views expressed at the Monday plenary and this will be included in the report of the Montreal meeting. The nature of the international regime will be negotiated in the final session in March 2010.

Namibia, speaking for the African Group, said that the International Regime should be a comprehensive legally binding instrument, containing a set of principles, norms and rules and compliance and enforcement measures.

Mexico, speaking for the regional group of Latin American and the Caribbean countries (GRULAC), stated its consensus position that it wants a binding instrument.

Brazil, on behalf of the Like-Minded Megadiverse Group of Countries (LMMC), wants the instrument to be a single legally binding instrument, a Protocol to the CBD.

Cuba, Indonesia, Bangladesh, Argentina, Tunisia, and Liberia also supported a single, legally binding instrument.

Norway's position is that the International Regime should be composed of, but not limited to, a single, legally binding instrument and this instrument should be a Protocol to the CBD further developed from the Bonn Guidelines on ABS, with binding and non-legally binding provisions. It said that compliance is a core legally binding element.

Japan said that it is not in a position to accept a legally binding regime unconditionally though it is open to have some binding provisions on awareness-raising, and it is their view that the nature of the instrument can be determined after discussing the various elements of the International Regime.

Thailand supports the development of the International Regime, especially consisting of one or more legally binding and/or non-legally binding instruments within a set of principles, norms, rules and procedures.

New Zealand said that any legally binding element of the International Regime should make legal sense and is workable, which means it is able to be implemented. Its view is that if the instrument will have to be legally binding, what would that legally binding provision be in New Zealand and how shall it be implemented. A legally binding instrument should be implementable nationally and internationally, it said.

Switzerland supports a legally binding instrument, that contains principles, norms, rules and procedures that may be legally and/or non-legally binding. It is also important that this instrument should be implemented in harmony with other ABS agreements and be flexible to allow the adoption of more specialized instruments that are in harmony with the CBD.

The European Union said it follows the "form follows function" principle in the negotiations, and that for its part, the International Regime should include international access standards linked to compliance support measures that could constitute a mix of legally and non-legally binding measures.

Canada said that the nature of the regime should not be considered in a vacuum and that content determines the nature. It said the International Regime should include existing voluntary instruments, and depending on the COP decision, can either have binding, non-legally binding, or a mix of binding and non-legally binding outcomes.

Costa Rica spoke about its experience in applying ABS measures and said that the International Regime should be a legally-binding instrument.

Serbia, on behalf of Eastern and Central Europe, said that the International Regime could either be a single legally binding instrument, or a combination of legally and non-legally binding instruments.

Jordan is for a binding instrument that has a number of measures, particularly on compliance and implementation.

The International Indigenous Forum on Biodiversity said that the International Regime must have legally binding elements protecting the traditional knowledge and genetic resources of indigenous peoples in accordance with relevant international instruments that affirm indigenous peoples' rights.

Francois Meienberg, speaking for the civil society groups present in the Montreal meeting, reiterated that a meaningful and effective implementation of the ABS provisions of the CBD can only be reached through an international legally binding instrument. He said that voluntary agreements, like the Bonn Guidelines, have failed to protect and enforce the rights of provider countries and the various providers, as well as to establish compliance mechanisms in user countries. This can only be achieved through a comprehensive International Regime on ABS that needs to be a Protocol to the CBD.

He added that a meaningful and effective system can only be built up if the ABS Protocol recognises and supports the UN Declaration on the Rights of Indigenous Peoples. The NGO statement called upon all CBD Member States to support a legally binding International Regime and urged those that cannot at the present time envisage ratifying an ABS Protocol, to not block other countries who seek to achieve a meaningful Protocol.

The recurring problem of difficulties in obtaining visas to travel to Canada, host to the CBD Secretariat, was raised again in Monday's plenary. The African Group stated its unhappiness as a delegate from Zambia has been denied a visa to Canada to attend the meeting of the Working Group.

The African Group sentiment was supported by GRULAC, Argentina and Mexico.

The Philippines also expressed the same experience, saying it has been "victimized" by the change in procedures in the Canadian Embassy (in Manila) though it hoped it will not ever happen again in succeeding meetings of the CBD.

Canadian officials at the meeting said informally that they have nothing to do with the changes in the visa processing procedures in developing countries. +