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Info Service on Biodiversity and Traditional Knowledge (Jan23/01) Kathmandu, 4 January (Prerna Bomzan*) – At the recently concluded fifteenth Conference of the Parties (COP15) to the UN Convention on Biological Diversity (CBD), developing countries firmly defended the fundamental principle of common but differentiated responsibilities (CBDR) when addressing the interlinked issue of “Biodiversity and Climate Change”, amid stiff opposition from developed countries. The CBD’s COP15 met in Montreal, Canada, from 7 to 19 December, in conjunction with the meetings of Parties of its Protocols – the Cartagena Protocol on Biosafety (COPMOP10), and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (COPMOP4). The deadlock on whether or not to retain the CBDR principle which was in square brackets (not agreed/unresolved) throughout the evolution of the negotiating texts, stemmed from extremely divergent views between developed and developing countries. The former refused to accept it as a principle of the CBD. The latter pointed out that it is an overarching principle enshrined in Principle 7 of the 1992 Rio Declaration on Environment and Development and therefore, applies to the CBD, and furthermore is clearly invoked in Article 20 (on financial resources). Principle 7 of the Rio Declaration reads: “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.” Article 20.4 of the CBD specifically reads: “The extent to which developing country Parties will effectively implement their commitments under this Convention will depend on the effective implementation by developed country Parties of their commitments under this Convention related to financial resources and transfer of technology and will take fully into account the fact that economic and social development and eradication of poverty are the first and overriding priorities of the developing country Parties”. In addition to the CBDR principle, another protracted sticky issue was reference to the controversial terminology of “nature-based solutions” (NbS) in the negotiating texts, not just for the biodiversity and climate change agenda item, but also across other agenda items, including in the Kunming-Montreal Global Biodiversity Framework (GBF). This concept was opposed by the majority of the developing countries that argued that NbS has yet to be agreed under the CBD, instead preferring reference to the already agreed approach of “ecosystem-based approaches” (EBAs). Nonetheless, in the spirit of “compromise” and moving forward to adopt a decision on the agenda item, developing countries eventually provided major concessions to reaching a consensus on retaining “nature-based solutions and/or ecosystem-based approaches”. This formulation has now been accepted for use in multiple documents. Despite exercising maximum flexibility on the NbS issue, developing countries however failed to receive reciprocal treatment from developed countries on retaining the CBDR principle, referenced in Paragraph 8 of the conference room paper on the biodiversity and climate change agenda item (CRP.12) which read, “[Recognizes that global strategies adopted to address biodiversity and climate change must take into account common but differentiated responsibilities and respective capabilities;]”. The CRP.12 document was under consideration for approval in the form of a draft decision text. CBDR fight On 16 December, when the CRP.12 text was submitted by the Working Group II Chair Helena Jeffery Brown (Antigua and Barbuda) for consideration, Norway, Canada, the European Union (EU), Switzerland, the United Kingdom (UK), Australia and Japan objected to CBDR and refused to remove the brackets around it, which would have denoted agreement. Argentina sternly pointed out that, just to accommodate the developed countries, reference to NbS was accepted (see below), which led to an “imbalance” in the text and moreover, rejecting the CBDR principle was not “constructive”. It reiterated that it cannot accept a decision which does not contain CBDR, while further highlighting the need for reference to obligations of the developed countries on financial resources (referring to Article 20 of the CBD reflecting CBDR). Brazil, that had consistently defended the CBDR principle from the outset, echoed Argentina’s concerns, also supporting Article 20 to be reflected in the text. They were supported by Colombia, Honduras, Ethiopia, Uruguay, Mexico, Indonesia, Iran, the Philippines, Morocco, Algeria, Sri Lanka and Uganda. South Africa, speaking for the African Group, made clear that “Africa made the biggest compromise to accept NbS” and expressed disappointment that the “agreed principle of CBDR as the founding principle of the Rio Convention is suddenly being contested, which is preventing progress”. In a last-ditch effort to facilitate consensus, Chair Brown proposed a small group to move the issue forward, suspending discussion on the CRP.12 text, with a view to hearing a report back at the next session of the Working Group. When moving on to the review of CRP.8 on “Specialized international access and benefit-sharing instruments in the context of Article 4, paragraph 4, of the Nagoya Protocol”, this was unanimously approved, the text containing only a procedural decision of deferral for further review, noting divergence of views on the issue. (See South successfully defends benefit sharing objective, equity in One Health, 23 December 2022). Brazil then proposed similar treatment for CRP.12, in terms of a simple procedural decision deferring the issue for further review, given the divergences that could not be “bridged”. It reiterated that the CBDR principle was “non-negotiable” and that there was “no consensus” on the issue; therefore it did not see any value in having further discussion (as earlier proposed by the Chair). Argentina echoed Brazil, further supported by Ethiopia and Uruguay. While fully agreeing to defer the issue and close negotiations given “different understandings” on essential principles, Bolivia added that the issue of climate change is better addressed under the UNFCCC (UN Framework Convention on Climate Change), to which Brazil agreed and highlighted that there was “pressure” to discuss the issue under the CBD. Brazil called on developed countries to negotiate in “good faith” and questioned “why the majority of Parties must be kept hostage by a few; why most who host the biodiversity must be kept hostage by the minority few” (referring to the continued rigid stance by Norway, the EU and the UK on the CBDR issue), which Brazil wanted to be “registered” in the plenary. It further clarified that it engaged a lot throughout the negotiations with flexibility and bridging proposals, including on the NbS issue, and expressed deep regret on the lack of “fairness and equity” of treatment on similar issues with divergent views, requesting for deferral, as in the previous case of the CRP.8 text. At the resumed plenary session of Working Group II, Chair Brown provided her assessment of “no consensus”, given “divergent views on the way forward” and proceeded with the proposal to “defer” the agenda item for consideration at the next meeting of the CBD’s Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA). The UK responded that the two Working Groups should not be working in “silos” given “real crosscutting issues”, noting that most contention was mainly on NbS and CBDR. Hence, it preferred to keep the text in brackets and take it as a package when those very unresolved issues under Working Group I were finalized. This was supported by the EU. Brazil reiterated its appeal to Chair Brown for a “fair treatment of issues” and pushed for deferral of the agenda item to put an end to the protracted deadlock, stating that Parties should instead spend time on the GBF, which would be the key substantial COP15 outcome. This was supported by Argentina, Algeria, the Philippines and Ecuador. Ethiopia further added that “from the very beginning, we accepted reference to NbS provided [there was] removal of brackets on the CBDR principle”. Finally, Iceland and Canada relented to the proposal for deferral, however seeking clarification from Chair Brown on what exactly would be requested of the SBSTTA and which document would be the basis. She confirmed it would be SBSTTA recommendation 23/2 (Paragraph 12 was the basis of the non-paper of 14 December, which evolved into the CRP.12 text in the form of a draft decision). The UK also agreed to the deferral, but it posed an additional request to the Secretariat to prepare a paper with latest scientific inputs at the SBSTTA meeting. This was supported by Norway as a possible compromise, with Switzerland joining in. However, Brazil rejected the proposal, pointing out that the Secretariat lacks “competence” on the issue and instead stated that the IPCC (Intergovernmental Panel on Climate Change) is the main scientific technical body on climate change. It also highlighted that the Secretariat’s priority work would be the implementation of the newly adopted GBF. Brazil further offered a “compromise as a way forward” to simply request the Secretariat to invite suggestions from Parties and compile those views on how to deal with biodiversity and climate change, to be then given to SBSTTA for review. Argentina echoed Brazil, further supported by Algeria, South Africa, Uruguay, the Philippines, Colombia and Ecuador. Following another drawn-out dispute over whether reference to scientific information from the past workshop of IPBES (Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services) and the IPCC should also be contained in the procedural decision text, the final decision was against any such specific references after resistance from developing countries. The final document adopted contains a simple procedural decision as pressed for by developing countries. By standing ground on the CBDR principle as non-negotiable, developing countries successfully defended and anchored it firmly in the implementation of CBD commitments, thwarting rejectionist attempts by developed countries to escape from their obligations (particularly on financial resources and transfer of technology) and to shift the burden instead to developing countries. Developing countries would, however, need to consistently reflect the CBDR principle in their submissions of views and information in preparation for further review of the agenda item at the next SBSTTA meeting to be held prior to COP16, as per the decision adopted. Compromise on “nature-based solutions” (NbS) The fights over CBDR were closely linked to the NbS discussion, with the draft decision proposed in paragraph 12 of SBSTTA recommendation 23/2 containing language on both CBDR (in brackets) and NbS (two preambular paragraphs). Due to the divergence in opinions, a Friends of the Chair group was established, which was subsequently converted to a Contact Group. Following initial comments from Parties, mainly opposing views on the two contentious issues of CBDR and NbS, a non-paper was introduced on 14 December by the Co-Chairs Rita El Zaghloul (Costa Rica) and Sigurdur Thrainsson (Iceland) which included three new additional preambular paragraphs on NbS, albeit in brackets, along with the still bracketed CBDR principle. The majority of developing countries saw the elevation of NbS to the increased five preambular paragraphs as inclined towards the interests of the developed country proponents. Moreover, those three new preambular paragraphs cherry-picked from the UN Environment Assembly (UNEA) resolution 5/5 (of March 2022) on NbS, and were not factually formulated. According to delegates following the negotiations, Brazil and Argentina decried this as a heightened imbalanced text, while their demand for removal of brackets around the CBDR principle had gone unheard. South Africa is understood to have highlighted instead the need to acknowledge up front in the preambular text, “ecosystem-based approaches” (EBAs) as agreed and recognised in the CBD. Those three Parties, in particular, resisted any reference to NbS, primarily contesting that currently there is no common understanding of the terminology with divergent views, which is well reflected in the UNEA resolution as well. On the other hand, developed countries, reportedly led by the EU, held a hardline position that the definition of NbS has been already agreed by UNEA resolution 5/5, hence, justifying those additional three new preambular paragraphs on NbS. It also wanted to ensure all significant pledges for NbS made at the UNFCCC’s recent COP27 in December (Sharm el-Sheikh, Egypt) went to the CBD. Countering the argument, South Africa purportedly made clear that the UNEA resolution 5/5 has a negotiating history and that the majority of the developing countries agreed to the definition on NbS contained therein based on the understanding that “inter-governmental consultations” – yet to start – will be convened to undertake an assessment to address “divergences” with a view to “achieving a common understanding” on the issue (as explicitly spelled out in paragraphs 5 and 6 of UNEA resolution 5/5). This was supported by the majority of developing countries. India is known to have preferred reference to EBAs and pointed out that any NbS reference must also include EBAs alongside, keeping the latter option in the text. This proposal to have both references was not acceptable to some developing countries, although it was supported by other Parties. Numerous concessions were made by developing countries to try to reach consensus. The developed countries however heavy-handedly increased the number of NbS references in the text by placing them in conjunction with the EBAs references to read “nature-based solutions [and][or] ecosystem-based approaches” in all relevant operative paragraphs in the text. With a view to solve the unending conundrum, a compromise was proposed by Brazil according to a delegate familiar with the negotiations, to introduce instead the agreed NbS language from the Sharm el-Sheikh Implementation Plan of the recently concluded UNFCCC’s COP27 (para 81 of decision 1/CMA.4) in December 2022, as only one operative paragraph on NbS, in exchange for the removal of all five preambular paragraphs on NbS. The proposed paragraph 1bis read, “Encourages Parties to consider as appropriate nature-based solutions or ecosystem-based approaches as appropriate taking into consideration UNEA resolution 5/5, for their mitigation and adaptation actions while ensuring relevant social and environmental safeguards”. However, developed countries rejected even this very recently agreed language on NbS. Given such clear North-South divergence on the issue, developing countries urged the Co-Chairs to keep the entire non-paper in brackets, while deploring the refusal of developed countries to negotiate. Developed countries asked to keep references to NbS and EBAs in brackets instead of the entire non-paper. To accept this, developing countries then requested for reciprocity by removing brackets on the CBDR principle. This was however flatly rejected. According to those familiar with the debate, the EU, the UK, Switzerland and Canada were on one end of the spectrum, while Brazil, Colombia, Eswatini, Argentina, Pakistan, Indonesia and Chile were on the other. A last-ditch attempt was put forward in the form of an amended proposed paragraph 1bis, replacing “nature-based solutions or ecosystem-based approaches” with “nature-based solutions and/or ecosystem-based approaches”. In return, developing countries were willing to keep the first two preambular paragraphs on NbS – such a proposal was to avoid sending bracketed text to the Chair of Working Group II, which would then potentially go to Ministers, to no advantage. To seek consensus, Co-Chair Zaghloul (Costa Rica) further proposed to replace the conjunction “[and][or]” by “and/or” between NbS and EBAs throughout the text. Several delegates who followed the developments said that this heavily compromised consensus was reached mainly to appease the EU that essentially led the developed countries’ position. Those speaking for developing countries declared that the entire issue was being taken hostage by one delegation acting irresponsibly and not in good faith. A massive compromise had been made on their part to accept the increased number of references to NbS and therefore, developing countries asked for lifting of the brackets in the paragraph containing the CBDR principle, in order to reach a balanced consensus. However, given the developed countries’ persistent inflexibility, developing countries then took the position of considering both the CBDR and NbS issues as a package and hence, asked the Co-Chairs to place all NbS references in brackets, emphasising that any decision on climate change is not possible without the CBDR principle. The developed countries were regrettably attempting to shift the burden to developing countries and not recognising their commitments and obligations. The Co-Chairs were asked to report to the working group that there was no consensus on the non-paper and therefore, to keep it entirely in brackets. The entirely bracketed CRP.12 text eventually failed to receive consensus and was superseded by the procedural decision CBD/COP/15/L.19 finally adopted under the agenda item 23 on “Biodiversity and Climate Change”. This contained no references to NbS. Meanwhile, as the NbS issue was bracketed in other documents under consideration by COP15, this was brought to Ministers to resolve. Eventually, following consultations by the COP15 President, the formulation “nature-based solutions and/or ecosystem-based approaches” was used across the board, including in two targets of the GBF – Target 8 on climate change and Target 11 on “nature’s contribution to people”. Earlier references to NbS and the UNEA resolution in the controversial section of the GBF known as “B bis” (see New implementation framework for Biodiversity Convention adopted, 28 December 2022) were deleted. What is now a new Section C titled “Considerations for the implementation of the framework” just contains a short section on the “Ecosystem approach”, which states, “This framework is to be implemented based on the ecosystem approach of the Convention”, with a footnote referencing Decision V/6 that endorsed the approach. + (*With inputs from Lim Li Ching)
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