TWN Info Service on Biodiversity and Traditional Knowledge (July12/02)
5 July 2012
Third World Network

Nagoya Protocol on Access and Benefit Sharing inches on

New Delhi, 3 July (TWN*) -- Preparatory work for the entry into force of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation resumed on Monday, 2 July.

The Second Meeting of the Open-ended Ad Hoc Intergovernmental Committee for the Nagoya Protocol (ICNP-2) that is being held in New Delhi on 2-6 July is attended by Parties to the Convention on Biological Diversity (CBD), the "parent" treaty of the Protocol.

The first day addressed the elaboration of guidance for the financial mechanism (that will service the Protocol implementation), elaboration of guidance for resource mobilisation, as well as the need for, and modalities of a global multilateral benefit-sharing mechanism.

In the opening session, Mr. M. F. Farooqui, Special Secretary at the Ministry of Environment and Forest of India, said that access and benefit sharing (ABS) was a missing pillar in the CBD implementation and negotiations of the Protocol were "sometimes characterised by extreme and divergent positions". However, he said, the Nagoya Protocol is important as signalling the viability of multilateral environmental processes.

(The three CBD objectives are biodiversity conservation, sustainable utilisation of components of biodiversity and the fair and equitable sharing of benefits arising from such utilisation.)

Mr. Braulio Dias, the new Executive Secretary of the CBD, highlighted early ratification of the Protocol in his remarks, and informed the meeting that there are currently 92 signatories and five ratifications (Gabon, Jordan, Rwanda, Seychelles and Mexico).

(Fifty CBD Parties have to ratify the Protocol for it to enter into force. Ethiopia subsequently spoke from the floor that it is submitting its ratification document.)

Mr. Dias said that entry into force is expected between the 11th meeting of the Conference of Parties (COP11, to be held in Hyderabad, India in October) and COP12 (in 2014), and that the first meeting of the COP acting as the Meeting of the Parties of the Protocol will then be held concurrently with COP12. He also noted that the final document of the recent United Nations Conference on Sustainable Development in Rio de Janeiro (Rio+20) supports ratification of the Protocol.

Co-Chairs of the ICNP Fernando Casas of Colombia and Janet Lowe of New Zealand then presided over the working session which heard opening statements from various regional groups.

Peru, speaking on behalf of the Group of Latin American and Caribbean countries (GRULAC), expressed hopes, despite the tough agenda, for clear and specific recommendations on the agenda items. Given that lack of ratification is a reality, we need a clear trajectory for this group (ICNP). It also said that there is need to clarify the resources necessary for (the first) COP-MOP (the COP acting as the Meeting of the Parties of the Protocol).

Cameroon, speaking for the Africa Group, expressed high expectations, stressing that ratification and implementation of the Protocol is difficult for Africa from which there is over 30% of the signatories. It said that benefit sharing needs to be with the people who take care of genetic resources. It said that we need early entry into force, but Africa will have difficulty accessing the resources needed to implement the Protocol. Cameroon said Africa was largely left out of funding by the GEF (Global Environment Facility that is operating the CBD financial mechanism, and will be doing the same for the Protocol) and the Nagoya Protocol Implementation Fund. It called for the need for direction from ICNP-2 to ensure implementation in Africa. It highlighted the importance of Article 10 on the need for, and modalities of, a global multilateral benefit-sharing mechanism.

India, speaking on behalf of the Asia-Pacific region, said that without ratifications there will not be a COP-MOP at Hyderabad. It called for prioritisation of the work agenda of the Committee considering the large number of agenda items consisting of six new items and four items carried over from its first meeting in Montreal, Canada (June 2011). India also said that the regional group is open to another ICNP meeting, if requested by COP11.

This call by India was echoed by the Like-Minded Mega-diverse Countries (LMMC) whose current chair, the Philippines, had suggested the prioritisation of four agenda items in the Committee's deliberations this week, namely, the modalities of the ABS Clearing-house, the compliance mechanism of the Protocol, the global multilateral benefit-sharing mechanism, as well as the guidance to the financial mechanism.

Ukraine, on behalf of Central and Eastern Europe, hoped for quick entry into force of the Protocol, a focus on capacity building in economies in transition, and the prioritisation of decisions related to financing mechanisms.

Guidance to the financial mechanism

On the agenda item concerning guidance to the financial mechanism, countries such as Senegal, Uganda, Guatemala, Tunisia and Peru called for the streamlining of the rules for accessing the funds so they can use it for work towards the ratification of the Protocol.

The meeting under this agenda item also considered the Nagoya Protocol Implementation Fund set up through the contributions of Japan, Norway, Switzerland and Spain. Some countries were of the view that this Fund is not too focused on funding projects that will help lead to the early ratification of the Protocol but instead delved more on the implementation of the Protocol with some capacity-building activities on bio-prospecting, already part of the activities that it will support.

Brazil and Colombia were among those that wanted this to be rectified, while Malaysia objected to the putting up of an eligibility criteria for countries to be able to access these funds and suggested also that part of the activities that should be funded include capacity-building on monitoring and checkpoints to prevent biopiracy. Malaysia noted the CBD Article 20 (on financial resources) and said that restricting access to funds to ratified countries is not constructive, cautioning against following the model of the Cartagena Protocol on Biosafety.

Norway, however, supported the maintenance of the eligibility criteria whereby countries getting funds for its capacity-building activities should make a political commitment towards becoming a Party to the Protocol, saying that such a criteria was also made during the capacity-building for the Cartagena Protocol, the other international instrument under the CBD dealing with the transboundary movement of living modified organisms.

Thailand stressed the need for financial support of traditional knowledge and the funding related to checkpoints and development of compliance mechanisms. It said that funding should support getting ready for ratification and also highlighted capacity building on negotiating MATs (mutually agreed terms), technology transfer, and integrating business and indigenous and local communities into the process. This will result in early implementation, it said.

The European Union said we need to adopt a framework on capacity building before finalising financial recommendations, and to fine-tune recommendations to the GEF. It wants projects on helping negotiate MATs, adding that the GEF should talk to both the COP and the COP-MOP.

Resource mobilisation for Protocol implementation

In the discussion on the agenda item addressing the resource mobilisation for the implementation of the Protocol, Norway, supported by the EU and Switzerland, said that ABS agreements that are entered into by provider countries with users can mobilise funds for this purpose. The EU also wants Parties to consider resource mobilisation in national plans. On the other hand, developing countries including Brazil, Senegal (for the Africa Group), Malaysia, China, India and South Africa emphasised the need for Article 20 of the Convention to be mentioned in the recommendations on the agenda item on resource mobilisation.

(Art. 20 of the CBD establishes the basic principles for the financial resources that will be needed for the operation of the Convention and obliges developed country Parties to provide new and additional financial resources to enable developing country Parties to meet the full incremental costs to them of implementing their obligations under the Convention.)

Brazil said that any new mechanisms would be new and supplemental, but not replacement of the mechanism under Article 20 of the CBD, stressing that "we need to be clear on this".

Senegal, on behalf of the Africa Group, supported Brazil. It also said the (ICNP) recommendations were to be addressed to the COP-MOP, but since we don't know when that will be, we want the resource mobilisation recommendations to go to COP11.

Global multilateral benefit-sharing mechanism

The last agenda item taken up for the day was on Article 10 of the Protocol whereby Parties will consider the need for and the modalities of the establishment of a global multilateral benefit-sharing mechanism, referred by the delegations as the GMBSM. Co-Chair Lowe said that the call for submissions solicited four from governments and one from the International Chamber of Commerce.

(Article 10 reads: "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.")

Namibia, on behalf of the Africa Group, said that in general Africa thinks a more multilateral approach to some outstanding ABS issues will help resolve those issues. It reminded the meeting that Article 10 was inserted by the COP10 Presidency (Japan) and that the actual African proposals are still out there somewhere, in a report. It said that Africa's flexibility on this was a key enabler for the adoption of the Protocol (at COP10 in Nagoya in 2010), stressing that this kind of flexibility is important for implementation. On the issue of process, Namibia said this is not a sequential process; to make the Protocol implementable, we have to develop a global mechanism for benefit sharing in parallel.

Reiterating that sustainable use is the only way to achieve conservation in the long run, Namibia argued that the need for the global mechanism derives from the CBD itself. In Africa, we've had resources and knowledge arbitrarily divided by colonial powers, in a conference room in Berlin. Look at our own (Namibia) border, which cuts right through the San (indigenous peoples) territory. Practically speaking, we need a multilateral approach because maybe you could negotiate every agreement but the transaction costs of that are huge. The CBD was not intended to primarily benefit the legal profession.

It then related the experience in Namibia where it said we have commercialised a resource with a European country, on the basis of traditional knowledge, and is re-exported to South Africa by the European company where it is used as a cosmetic ingredient. But South Africa wants cosmetic companies that use the resource to comply with South African access law. Now, we can work this out bilaterally but this resource is found in 17 countries. We could work this out with a 17-party agreement, but wouldn't it be a waste of time and effort? Wouldn't it be better to have a global mechanism, a global approach? The brackets that disappeared overnight in Nagoya (referring to the contested parts of the Protocol up until the final days of the COP10) were key to (the Protocol's) adoption; we are willing to talk about our position, but it's absolutely unacceptable to the Africa Group that there's no need for a global mechanism.

Colombia said that prior informed consent (PIC) is indispensable and that national sovereignty should be supreme in access. A global mechanism should be limited to cases where PIC cannot be established. Mexico said there are cases, mentioned in its submission to the (CBD) Secretariat, in which you have shared resources, transboundary resources, etc. It is fundamental that before determining modalities we need to discuss concrete cases. It generally supports the Secretariat recommendation for an expert group. We need to define the specific circumstances under which a global mechanism would operate.

Peru said that this theme comes from a non-negotiated compromise, so it produces uncomfortable issues that need to be resolved. It agreed with Mexico that we need to define the circumstances under which a mechanism would work. We understand that resources are not developed internationally, but that there are cases where resources cross borders, or indigenous people in different countries have knowledge. Sovereignty, however, cannot be renounced and is key in access, it stressed. So, a multilateral mechanism is for special circumstances. But we need understanding of what the mechanism is, how it will work, how it will distribute benefits, and who will decide. So, we support an expert meeting, but not just to answer questions but which should investigate other successful international benefit-sharing mechanisms that should be done before the expert group meets, to focus its efforts.

The Republic of Korea said that the scope of this mechanism is not clear and will have an impact on Article 4 of the Protocol dealing with the relationship of the Protocol with other international instruments dealing with genetic resources with particular characteristics.

Switzerland said that every effort at this time should be made to implement the bilateral requirement in the Protocol but each country should first do a gap analysis of the ABS regulatory requirements within its territory and once this gap analysis is done, the expert meeting suggested by the Secretariat would be useful.

The EU said the discussion is good to help us reflect, and prefers to go step by step as outlined it its submission to the Secretariat. It is open to identifying possible situations where the multilateral mechanism will apply; thereafter, the second step should assess if a global mechanism would add value in those cases. It said that this would provide good technical and factual basis for discussion among Parties of the Protocol (indicating that this will be dealt with at a later stage) and emphasised that no decision can be taken except by the Parties. The EU said that we can talk about it for now, consult with the public, ILCs (indigenous and local communities), etc, and the Secretariat can do a dialogue, and submit the results to COP-MOP.

(Observers note that the EU is focusing on the "need for" a global mechanism and its approach would defer this matter. The EU is also not supportive of opening the temporal as well as the geographic scope of the Protocol.)

Brazil said that it had read the Secretariat paper and description of situations where the mechanism might be used. Brazil said we need time to reflect on this, this being the first time this is discussed by the Committee, as it will have an effect on the nature, scope and objective of the Protocol, and this will be decided by the Parties to the Protocol, but the Protocol has not yet entered into force, thus Brazil supports the further solicitation of views on this issue, and an expert meeting based on items submitted by governments.

Guatemala supported Peru and Brazil as regards the impact of this mechanism on the scope as well as sovereignty of countries over their resources but highlighted the importance of identifying the full background of this proposal. It cautioned against creating any perverse incentives, saying that somebody who does not have PIC might opt for a multilateral system.

Thailand sees this mechanism as essential and integral in addressing situations that are not dealt with by the Protocol, especially those not only addressed in its region, South East Asia, but also in others.

Japan said that the establishment of this mechanism must consider the need as well as the modalities that is acceptable to users of genetic resources, in a manner that is cost-effective with benefits directed to conservation and sustainable use of genetic resources; at least what can be done now is to collect information on situations where it is not possible to secure prior informed consent with inputs from experts on the UN High Level Panel on Marine Genetic Resources Outside National Jurisdiction, the Antarctic Treaty, the International Treaty on Plant Genetic Resources for Food and Agriculture and traditional knowledge in various situations.

Sudan and Burkina Faso supported Namibia and provided examples justifying the need for this mechanism, with Burkina Faso citing the case of genetic resources acquired before the entry into force of the Protocol and before the independence of some countries, where most of their resources were acquired by those who held control over their territories.

Canada recognized that Article 10 is critical, but the ICNP is to initiate discussion. It tried to understand Article 10 but cannot adjust to it, and there is a huge need for more information. It added that more discussion is needed at the ICNP, specifically on the need for a global mechanism and that an expert group would be meaningless if we don't know what we're talking about. It said that we have to figure out what kinds of cases would fall under such a mechanism. We have spent 8-9 years on a sovereignty-based system. What would an alternative mechanism give to us that the rest of the Protocol doesn't? If we have agreement on everything, then maybe we can move forward with this, but we won't even support an expert meeting until we have more information.

Ecuador shared the concerns of Mexico, Colombia and Peru on a multilateral mechanism, saying that this would be for cases where traditional knowledge about genetic resources spills over borders. We're unsure how to do PIC in trans-border cases. And what if there are Parties and non-Parties mixed up in the mechanism? On the other hand, it supported the expert group, adding that a multilateral system cannot interfere with national prerogative.

Norway emphasised that this mechanism should not undermine the sovereign rights of states in the bilateral mechanism of access and benefit-sharing under the CBD, and that the possible areas where it is not possible to secure prior informed consent involve collection in areas beyond national jurisdiction including those that are discussed in the UN Informal Group in Areas beyond National Jurisdiction. However, Norway added, we also have to deal with cases where the provider countries do not require prior informed consent, or orphan genetic resources where the origin is not known and whether users can share benefits for conservation and sustainable use globally; is this a voluntary effort or is it part of a certain modality? Finally, Norway said it can support an Expert Meeting but such meeting needs to be guided by concrete questions.

Cuba said there have been a lot of examples over the years of transboundary cases and cases where there's no owner. We do need a specific answer to this, and the Protocol as such does not have one yet. This answer should be an integral part of the Protocol. It said that this is the first time we are discussing this, we won't solve it now, but that's not a reason not to discuss because these resources are being used. Let's seize the moment. We want a mechanism and have it inside the Protocol.

Malaysia said that Article 10 was sprung on us at the last minute. It was not negotiated. What does it mean? We supported Africa on this, on principle, as a matter of solidarity because of access of resources in certain situations. But this provision is bristling with complex issues. We need to understand those issues and need to be on the same page to move forward. Does it cover historical collections, ongoing or new use of them, or resources after the coming into force of the Protocol? Malaysia did not get a clear sense if we're on the same page on this, where some seem to be saying yes, and others seem to be saying no. It said that we have fought hard on sovereignty and PIC. Now, we have a situation of a global mechanism that is not clearly in the framework of the Protocol. Let's be clear that we do not marginalise or allow to slip away sovereignty. On transboundary issues, there are so many examples. If it's shared, and most are, are we going to apply this provision over others? We need to figure that out. And on PIC, where it can't be obtained, what's the situation in which it should? Does it mean we will bypass PIC from ILCs? Malaysia stressed that we need to be really careful here not to create a parallel system to undermine national legislation.

It further said that we need to move forward and discuss these issues in a mature and careful manner, and support an expert meeting with clear terms of reference. But, Malaysia also said, sometimes we do these expert meetings but then bypass them later. If we're going to have an expert meeting, then let's be sure there's follow-up on the expert result. Art. 10 does refer to Parties, so that seems to say after the entry into force of the Protocol. This is a very difficult situation to grapple with, it concluded.

Egypt supported the Africa Group position, which is consistent with the Arab country position saying also that it is important to look into modalities that can guarantee its implementation, thus supporting the establishment of an Experts' Meeting on this issue.

The Co-Chair closed the discussion by saying that the atmosphere had been constructive, and that Article 10 was not negotiated as such, but now it is part of the Protocol and Parties will have an obligation here. The Co-Chair will return to the issue with a suggested way forward.

(* With contributions from Edward Hammond.) +