TWN Info Service on Biodiversity and Traditional Knowledge (Nov24/08)
19 November 2024
Third World Network

COP16: Developing countries struggled to defend sovereign rights over DSI on genetic resources

Geneva, 18 Nov (Nithin Ramakrishnan and Lim Li Ching) – Developing countries have valiantly defended their sovereign rights over publicly available digital sequence information (DSI) on genetic resources at the Convention on Biological Diversity (CBD).

The Sixteenth Conference of the Parties (COP16), which met in Cali, Colombia, adopted a decision operationalizing a multilateral mechanism to share benefits arising from the use of DSI, after an extended plenary meeting that prolonged the closing session from 1 November until 9am the next day. (See COP16 adopts initial modalities for DSI multilateral mechanism with last-minute amendments, 15 November 2024.)

COP16 was held from 21 October to 1 November.

The developed countries, led by the European Union, Japan, Switzerland, Norway, the United Kingdom, Canada and Australia, tried to force a draft decision upon the developing countries on the last day of COP16.

The draft decision, issued as a President’s text, more or less reflected the EU's position and understanding of access and benefit sharing (ABS) requirements from the use of DSI – one that significantly compromises the sovereignty of States over DSI in publicly available databases. 

However, developing countries pushed back successfully and safeguarded their sovereign rights over DSI, both before and after making DSI publicly available. The African Group, led by countries like Egypt, South Africa, Uganda, Namibia, Democratic Republic of Congo, Tanzania, Kenya, as well as other countries like India, Argentina, Brazil, the Philippines, Colombia, Cuba, Peru, Panama, Bolivia and Bangladesh resisted the developed countries’ proposals, both jointly and individually. 

Top-down approach

Post-COP15 in 2022, the process of negotiating the modalities for operationalizing the multilateral mechanism took a more centralised and top-down turn. This is despite the best efforts of the Co-chairs of the intersessional process (Mphatso Kalemba, Malawi and William Lockhart, UK) and the CBD Secretariat, to fairly accommodate divergent views.

During the intersessional process, no text proposals were solicited from Parties. Two formal five-day sessions of the Ad Hoc Open-ended Working Group on Benefit-sharing from the Use of Digital Sequence Information on Genetic Resources and several informal advisory group meetings were conducted during the period.

However, discussions remained largely conceptual. It was only at the second formal session of the Working Group, held about a month before COP16, that draft text was finally discussed.

That draft decision text with edits and brackets, but without any consensus, was forwarded to COP16.

At COP16, there was no plenary first reading. The document was directly forwarded to the Contact Group, where interested Parties and observers could participate, the latter at the discretion of the Co-chairs.

There were ten Contact Group sessions co-chaired by Lactitia Tshitwamulomoni (South Africa) and William Lockhart (UK). However, the discussions still remained conceptual except with regard to a couple of paragraphs, where limited text-based negotiations took place. The discussions revealed a lack of convergence on almost all key concepts, particularly in terms of developed and developing country perspectives.

Despite these challenges, some Parties and the COP 16 Presidency sought to make progress by setting aside contentious issues for future discussion and developing a draft decision to adopt a first set of modalities, focussing on elements where consensus existed. This included operationalizing a global fund to receive contributions from DSI users.

The COP16 President, Susana Muhamad, Minister of Environment of Colombia, held informal, closed consultations on DSI with regional groups individually on 31 October before producing a President’s text on the last day of the meeting, on 1 November.

This text was also not negotiated on a line-by-line basis. Heads of Delegation meetings were chaired by the Presidency behind closed doors on this text for most of 1 November. Several informal meetings also took place among delegations, almost relentlessly for about 24 hours.

The underlying idea was to build trust among Parties by initiating monetary contributions, potentially fostering more consensus on unresolved issues by the next COP. However, to gain support from the EU and other developed countries, the language in the President's text regarding the global fund was kept deliberately vague. This unfortunately weakened the multilateral mechanism and compromised sovereign rights over DSI, which compelled developing countries to defend their positions.

The EU vision

The professed EU argument is that once DSI is deposited in a database, that makes DSI publicly available, States lose the right to claim benefits from its use.

This is because the European databases that make DSI publicly accessible do not place any terms and conditions on their users, often disregarding national laws of the countries that supply the genetic material from which DSI was extracted.

Dominant European databases, along with their US and Japanese counterparts, even provide DSI access to anonymous users across the world. By providing an escape route for researchers and developers to bypass ABS obligations, these countries keep extracting DSI from developing countries without any restrictions on its use, storage and processing.  They acquire rights to store DSI permanently, outside the jurisdiction of the country of origin, while retaining rights to suspend or terminate access to any users. (See What's wrong with using existing databases that are not accountable to Parties for sharing digital sequence information? 15 August 2024.)

To protect their control over DSI, the EU has promoted a voluntary multilateral mechanism without any accountability and compliance measures on DSI users. Developed countries that benefit from bypassing the CBD’s Nagoya Protocol on ABS and national ABS laws supported this proposal.

At the same time, they wanted the governments receiving funds from the multilateral mechanism to be accountable to both the international community and corporate contributors, who according to the EU and its allies, were “donating” money into the global fund.

Particular scientific lobbyists funded by European countries, and some developed country consultants, were keenly propagating views and narratives against accountability and transparency in the use of the DSI, diluting further the demands for due process requirements in the multilateral mechanism. These lobbyists often spread fear amongst developing countries, claiming that minimal forms of accountability such as “user registration”, “labelling of sequences”, and “application of terms and conditions on use of the DSI” would amount to policing.

As a result of these lobbying efforts, several delegations were of two minds as to whether to uphold principles of accountability and transparency in the governance of DSI, and benefit sharing arising therefrom.

However, the EU vision was contested by developing countries including Bangladesh, Namibia, India, Panama, the Philippines, South Africa, Uganda, Egypt, Brazil, Argentina, Bolivia, Peru, Colombia, and the African Group.

Sources told TWN that Bangladesh had explained its concerns in the Heads of the Delegation meeting and stated that the imposition on developing countries of norms and standards developed elsewhere is not acceptable. Bangladesh is understood to have specifically stated that the paragraphs requiring Parties to align their national ABS measures with the multilateral mechanism and those inviting other international organizations to adopt the multilateral mechanism, are not acceptable.

It argued that countries like Bangladesh are only in the process of acquiring and developing bioinformatics capacities that could enable them to secure benefits, while the proposed multilateral model will pressure such countries to follow the norms and standards set by developed countries – which are not in the interests of developing countries.

Bangladesh reportedly also expressed concerns about how elements in the President’s text could undermine WHO negotiations for a legally-binding and accountable ABS system focused on pandemic preparedness, which is of high priority to many developing countries.

Several other small and large developing countries are understood to have expressed their concerns to the President. All of them insisted that the multilateral mechanism’s scope must be clearly defined and should not interfere with their national policy space.

Small group informal consultations

On the evening of 1 November, after the meeting of the Heads of Delegation, the President issued an L-document for plenary discussion.

In response to requests from Bolivia, Bangladesh, and the African Group, the phrase “without prejudice to national access and benefit sharing measures” was added to paragraph 25 of the Annex spelling out the modalities. This clarified that while national ABS measures were encouraged to align with the multilateral mechanism, they were not bound by this. This language was retained in paragraph 26 of the final document that was eventually adopted.

While this addition was seen as an improvement, issues with the multilateral mechanism’s scope remained, prompting further informal talks among a small group of Parties. One of the key concerns was a paragraph on certificates issued to DSI users that consider them to have fairly and equitably shared monetary benefits under the multilateral mechanism, once they have contributed to the fund, which stated: “Such a certificate excludes the user from any expectation to share further monetary benefits from the use of digital sequence information on genetic resources”.

These discussions continued late into the night, and a revised version of the L-document was issued around 3:30am on 2 November, with changes that affected the mechanism’s scope.

The African Group played a key role in clarifying that the contributions to the ‘Cali Fund’ should fulfil obligations only within the multilateral mechanism’s scope. They argued that if a product or service involved genetic resources or DSI governed by other ABS systems, users would still need to comply with those systems.

This position is now reflected in paragraph 15 of the revised text: “Such a certificate excludes the user from any expectation to share further monetary benefits from the use of digital sequence information on genetic resources within the scope of the multilateral mechanism for that year”.

Safeguarding sovereign rights over publicly available DSI

When the COP16 President circulated her text, the first paragraph of the Annex had three clauses to determine the scope of the multilateral mechanism. It basically proposed that when DSI is made available publicly, in accordance with national laws, and if such DSI is not covered under other international ABS agreements, then there will be no additional benefit sharing obligations. However, users can contribute to the Cali Fund based on the decisions of COP.

The implication of this text was that Parties cannot establish a database that makes DSI publicly available and seek benefits from the users directly. Such an abridgement of national policy space in exchange for a multilateral mechanism that lacks effective accountability and compliance mechanisms was not acceptable to India.

At about 3.30am on 2 November, when the Plenary discussed the L-document as revised by the small group, India insisted on changes to paragraph 1 on the scope of the mechanism. Many countries like Norway, Japan, Panama, Peru, Canada, Bolivia, Mexico, Brazil, Switzerland, the EU and the Africa Group had expressed their willingness to adopt the text in the spirit of compromise.

However, India’s demand was that when the fair and equitable sharing of benefits arising from the use of DSI is provided for by national ABS measures, then the multilateral mechanism should not apply, even if the DSI is publicly available. It stated that it would be ready to accept the text, provided its critical concerns are taken care of. These concerns are very important for the country, and it pointed out that it had consistently raised these issues, including through written text, but regrettably only some of them were taken into account.

Specifically, with regard to scope, India proposed adding the phrase “or national obligations” in paragraph 1(c) of the Annex, so that paragraph 1 would then read:

“The multilateral mechanism for the fair and equitable sharing of benefits from the use of digital

sequence information on genetic resources covers digital sequence information on genetic resources…. (c) For which the fair and equitable sharing of benefits on the use of digital sequence information on genetic resources is not provided for by other international agreements or national obligations on access and benefit sharing, except if those instruments choose the multilateral mechanism for that purpose”.

India also sought to add similar changes in preambular paragraphs, as well as asked to replace the verb “should”, with “shall”, in various paragraphs to ensure clarity on the obligatory nature of benefit sharing.

However, the COP16 President interjected and asked India to reflect on what is absolutely critical. She said that she had heard more than 100 Parties, and that trying to get a consensus is difficult. Only if something was absolutely critical, would it be considered, and even so, compromise would be required, she pleaded.

Meanwhile, Zimbabwe made a statement indicating its willingness to accept the revised L- document as it was. Similarly, Cuba, reflecting on 24 hours of long negotiations, said that the document was acceptable.

Brazil said it has been a long journey, acknowledging the complexity of the process. It recalled the UN Secretary-General’s statement, which highlighted that “the world’s developing countries are being plundered as the scientific discoveries and economic growth derived from their extraordinary riches are benefiting others”. However, Brazil aligned with the revised text and agreed to its adoption.

Brazil said that the function of the multilateral mechanism would actually be a collective “leap of faith”. It said that there should not be discussion as to whether the mechanism is voluntary or mandatory, as the political mandate from COP15 is to share benefits arising from DSI use.

Chile stated that the text has not closed opportunities for review and revision, and therefore it accepted the President’s text.

Switzerland took the floor for the second time and stated that its earlier acceptance of the text was on the assumption that there were no new text introductions. It said, “some of the text proposals by one of the Parties here are not acceptable to us”, and that “if there are additions, I reserve the right to come back”.

Norway concurred, saying that “I was ready to accept this document but not with additions from India” which it said crosses its ‘red lines’. Norway accused India of not showing up at the small group discussions and appealed for India “to show flexibility and to adopt this document”.

Burkina Faso further reminded that there are many places in the text where national priorities are taken into account, and therefore it was willing to accept the text as it stands.

On the other hand, Panama called out the lack of transparency in the process, but did not provide support to India, accepting the text as it was.

A break was therefore called to allow Parties to discuss with India and arrive at a consensus. Several officials including the Executive Secretary of the Convention, the COP Secretary, Co-chairs of the DSI contact group, other key negotiators and observers surrounded the Indian delegation, to discuss with them their concerns and to suggest compromise proposals.

After the consultation with India, the President reopened the session and forwarded a compromise formula, which contained two text proposals from India. She stated that these would provide India reassurance and allow it to join the consensus, but do not change the substantive content significantly.

First, she explained that India proposed to add “without prejudice to national obligations and ABS” in the chapeau of Paragraph 1 of the Annex dealing with the scope, which India corrected to “without prejudice to national legislations”.

The chapeau of Paragraph 1 would then read: “The multilateral mechanism for the fair and equitable sharing of benefits from the use of digital sequence information on genetic resources covers, without prejudice to national legislations, digital sequence information on genetic resources….

Second, in paragraph 21, dealing with funds to indigenous peoples and local communities, the phrase “and national legislations” would be added at the beginning, so that it reads: “Where appropriate and subject to national circumstances and national legislations… “

Switzerland rejected the first proposal: “This is a problem for us.” It said that the multilateral mechanism will only work “if it is truly a multilateral one, if we can be sure that if a company pays, that they get a certificate that is respected on a global level.” It claimed that if exceptions are made for national legislation, this assurance is lost, and that companies will be hesitant to pay into the Cali Fund.

Switzerland reiterated that for them, it is very important to build a mechanism that “gives incentives for companies to adhere and to pay”, and said that this incentive is the certificate, which provides them the certainty that “they do not have to fear that in a country, national legislation obliges them to pay a second time”.

However, the President said that there is no case of double payment that arises from the proposed additions as suggested by India. The EU also expressed that it did not think that the proposals change the effect or substance of the text.

The Co-chair of the DSI Contact Group from the UK also took the floor in an effort to forge consensus. He said, “It is very important we get this right.” He pointed to the complexity of the issue, and that changes should not be taken lightly. But at the same time, he emphasised that the issue of DSI is so significant and that it would be important to seek out opportunities for finding consensus where possible.

He lauded the collective efforts of colleagues from around the world to conquer a “phenomenal amount of difficult material together”. He called on all to strive together in the spirit of compromise to try to agree on something that will really “send the message to the world that the Cali COP was something special”.

He expressed his confidence that the insertion by India does not change the operational meaning of the text, neither does it unbalance the delicate balance in the text. “The text is what we want it to be and it is time to adopt it,” he concluded.

Tanzania informed the Chair that delegations in the room were leaving and suggested moving ahead with other agenda items. However, the President attempted to adopt the text once again.

Switzerland again objected: “For us it remains a problem. It has to work. It has to be an incentive for companies to use this mechanism. So there has to be assurance that they are not hindered by national legislation… It is the main article and it is about scope. If we put it here, it weakens the entire mechanism….”

Following this, the President allowed for one more round of informal consultations between India and Switzerland. The Co-chairs of the Contact Group again mediated the discussions.

Finally, Switzerland accepted India’s proposal at around 7.30am on the morning of 2 November. It acknowledged that it was not really possible to find another place for the insertion. It however emphasised that it still thought that the insertion by India in the chapeau of paragraph 1 “might weaken the scope and main idea of the mechanism”.

Switzerland viewed its acceptance of India’s proposal, not so much as a concession in the spirit of compromise, but more in recognition that the multilateral mechanism “will have to be fine-tuned and modalities will have to be discussed again”. It viewed the idea of a multilateral mechanism alongside national legislation as “a contradiction” that “hampers the mechanism”. Yet, because of the fact that the modalities will be re-discussed, it could accept India’s insertion where it was made. “All other places would be worse,” according to Switzerland.

For the record, Switzerland’s full intervention was as follows:

“Thank you, Madam President, and thanks to the advisers from many Parties to help us to find a solution. It was not really possible to find another place and if we have it there, then it might weaken I think, the scope and the main idea of the mechanism. Switzerland… wouldn’t say spirit of compromise, but more in a way that we think that anyhow the mechanism will have to be fine-tuned and modalities will have to be discussed again, we will have a certain period of time to see if this goes together, to have a statement we should use the mechanism but at the same time, national legislation can also be there. For us it is really a contradiction and it hampers the mechanism. But because of the fact that we will re-discuss the modalities we can accept that is there where India wants to have it. All other places would be worse”.

India then asked the President, exactly how the text would read. The President clarified multiple times that the text would be as India proposed: “It is exactly what you proposed… Switzerland is accepting your text. The text India has proposed during this plenary, and the rest is the same”.

The decision was then finally adopted to applause.

Lack of transparency exacerbated developing countries’ struggles

Although Norway criticised India for not joining the closed-room talks, many developing country representatives who accepted the text as it was later told TWN that they believed that India’s move was strategic, providing a key opportunity to voice concerns in open plenary. Otherwise, developed countries could have coerced a compromise. They regretted that the small group negotiations forced a compromise upon them which was actually not fully acceptable to them.

Panama had also made a very strong statement exposing another issue of contention, where the decision overlooked the interests of developing countries. The original President’s text had 10 percent of the funding in the global fund set aside for capacity building of developing country Parties, to equip them with the tools and expertise necessary to fully participate and benefit from DSI. However, the final decision lost this percentage and simply states that the COP may set aside some funds for this purpose.

Panama traced the negotiation history: “... the 10 percent for capacity building was negotiated at the technical level. The 10 precent came out of the contact group and it was part of the new text”. It said that it had asked several times how the 10 percent figure was removed but had yet to get a proper explanation. It lamented:

“Time and time again, we run into this lack of transparency in these processes, and it is always on small countries like us to give in, while big countries parachute text at the last minute ... our contributions have not been sufficiently considered even though we have consistently demonstrated a strong commitment to this issue from the outset. Without a fair commitment to capacity building support at the global level of the mechanism, we are setting smaller countries like mine up for failure. How can we expect these countries to succeed under this mechanism, if we are not committed to making capacity building a cornerstone of this initiative”.

Due to the lack of time, and in the spirit of consensus, Panama was willing to move forward and accept the text. But the statement clearly reflects the struggles that developing countries face in the negotiations.

Another developing country delegate, speaking to TWN on condition of anonymity, stated:

“I loved the early morning exchange between India and Switzerland. Both these countries were honest to their cause. They explained their concerns very well…. Thanks to India and Switzerland, divergent conceptions about access and benefit sharing from the use of DSI are now available for public scrutiny. It is now for public opinion to shape the functioning of the multilateral mechanism as well as rules regarding extraction, sharing and use of the DSI, and the sharing of benefits arising therefrom”.

Indeed, there is still much work ahead on DSI and to operationalize the multilateral mechanism, so that benefits are actually fairly and equitably shared, as obligated by the Convention. +