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TWN
Info Service on Health Issues (Apr22/02) Kochi/London, 13 April (Nithin Ramkrishnan and Lim Li Ching) – Developing country Parties to the Convention on Biological Diversity (CBD) and its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization successfully pushed back the attempts of the developed countries to dilute the obligations for fair and equitable sharing of benefits at recent meetings in Geneva. There were at least three agenda items which had direct impact on the obligations for fair and equitable benefit sharing: (i) Biodiversity and Health, discussed at the 24th meeting of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA-24); (ii) Specialised International Access and Benefit Sharing (ABS) Instruments in the Context of Article 4, Paragraph 4, of the Nagoya Protocol, discussed at the 3rd Meeting of the Subsidiary Body on Implementation (SBI-3); and (iii) Digital Sequence Information on Genetic Resources, discussed at the 3rd Meeting of the Open-Ended Working Group on the Post-2020 Global Biodiversity Framework (OEWG-3). Following a two-year hiatus due to the COVID-19 pandemic, the resumed in-person meetings were held in parallel in Geneva from 14 to 29 March 2022. The first part of these meetings was held in virtual mode last year. Due to digital inequities and insufficient participation associated with online meetings, developing countries had stressed the need for in-person meetings before the above-mentioned bodies adopted any recommendations to be forwarded to the governing bodies of the CBD and the Nagoya Protocol. It was during these in-person meetings that developing countries successfully championed fair and equitable benefit sharing. Biodiversity and Health Based on Decision 14/4, the Executive Secretary to the CBD had prepared a document (CBD/SBSTTA/24/9) for the consideration of SBSTTA-24 which contained, inter alia: (i) a review of activities and initiatives undertaken to further integrate biodiversity considerations into One Health approaches, among other holistic approaches; (ii) a commentary on the relevance of One Health approaches, among other holistic approaches, and the recognition of interlinkages between biodiversity and health, in the light of the COVID-19 pandemic and the need to reduce the risk of future zoonotic pandemics; and (iii) a draft recommendation, inclusive of a draft global action plan on biodiversity and health annexed to it. [“One Health” is an approach to designing and implementing programmes, policies, legislation and research in which multiple sectors, especially plant, animal and human health, communicate with each other and work together to achieve better public health outcomes. The main criticism of this approach is that it has been so far blind to the socio-economic inequalities existing between developed and developing countries and particularly to health inequities.] The Secretariat revised the draft action plan after the online meeting held last year and issued a non-paper containing the same, which formed the basis of discussion for the Contact Group in the Geneva meetings. The draft action plan, as TWN formerly reported, raised several concerns. In the name of the COVID-19 pandemic and the One Health Approach, the draft action plan proposed to “enable the timely, open and secure sharing of pathogens, specimens, sequence information and relevant meta data which are essential for the rapid development of medical biotechnology, diagnostic assays, therapeutic interventions, vaccine development and prophylactic measures”, without adequate reference to the obligations for fair and equitable sharing of benefits. The obligation to share back these technologies, diagnostics, therapeutics and vaccines to providers of pathogens, specimens or sequence information was only referred to in a footnote. Even then the footnote included a reference to a living document prepared by the Secretariats of the CBD, the Food and Agriculture Organization of the United Nations (FAO), the World Organisation for Animal Health (OIE) and the World Health Organization (WHO), which states: “Implementation of the Nagoya Protocol may impact the sharing of pathogens if, for example, it entails multiple, complex and/or time-consuming processes… This in turn could impact the comprehensiveness and speed of risk assessment as well as the timely development of effective vaccines, diagnostics and other medical countermeasures”. The draft action plan also proposed to share sequence information of the pathogens, whereas challenges regarding fair and equitable sharing of benefits arising from the utilisation of such information have yet to be addressed by the CBD Conference of Parties (COP) and its subsidiary bodies. Developing country Parties, alarmed by these proposals, questioned the draft action plan in the Contact Group meetings. They sought equitable access to health care services, products, technology and knowledge through enhanced fair and equitable sharing of benefits. Developed country Parties vehemently opposed this move, taking the discussion to a stalemate. A “Friends of the Chair” group was therefore established to work out a future programme of action. It comprised representatives of Antigua and Barbuda, Argentina, Brazil, the European Union, Germany, Malawi, Malaysia, Mexico, Serbia, Switzerland and Uganda. After two closed meetings of the Friends of the Chair, a conference room paper (CRP) (CBD/SBSTTA/24/CRP.12) was developed wherein the draft global action plan was no longer included. Instead, the Executive Secretary was requested, in Operative Paragraph (OP) 5, to complete the work on the draft action plan and to present an updated version for a future meeting of SBSTTA, with a view to making recommendations to the 16th Conference of the Parties (COP 16) expected to take place in 2024. The Executive Secretary was requested to do so in collaboration with the members of the Quadripartite Alliance for One Health, i.e. the WHO, FAO, OIE and the United Nations Environment Programme (UNEP) Secretariats. The CRP was discussed further at the 25 March plenary meeting. Additional proposals were made, which remain bracketed. Inputs from observers were not invited. [The CBD practice is that a proposal from an observer, if supported by a Party, can be included in the negotiation text.] Brazil proposed to keep the entire OP 5 within brackets, which is the main operative paragraph of the document. Namibia, on the other hand, proposed new language that mandates the Executive Secretary to work along with members of Quadripartite Alliance in revising the draft action plan, but also to prioritise “equity particularly through fair and equitable sharing of benefits arising out of utilisation of the genetic resources, digital sequence information and associated traditional information.” Namibia also made a change to OP 2(a) to invite the Quadripartite Alliance for One Health “to take into account in their work and outcomes the linkages between health and biodiversity, and the need for the One Health approach, among other holistic approaches, pursuant to decisions XIII/6 and 14/4 as well as the need to recognize socio-economic inequities existing between developing and developed countries particularly the health inequities and also the principles of equity and solidarity”. Furthermore, Namibia incorporated reference to ongoing WHO negotiations to amend the International Health Regulations in a preambular paragraph, which consequently recognizes the need for aligning WHO negotiations to be consistent with the CBD and its Protocols. This change would send a clear message to States who are parties to the CBD as well as member states of the WHO, to ensure compatibility of new WHO instruments with the CBD and its Protocols. Japan also incorporated some changes in the paragraph, calling for the need for consistency with objectives of the Convention and Its Protocols. Finally, Namibia added a reference to digital sequence information and associated traditional information in OP 1(d). The implication of this change is that Parties would be required to enhance the fair and equitable sharing of benefits arising from the utilisation of genetic resources, and associated information, which includes sequence information as well as traditional information. All these new text proposals remain in brackets. At the plenary to adopt the resulting final document (CBD/SBSTTA/24/L.9), the Bahamas expressed concerns about the promotion of the One Health approach, without adequate scrutiny of the idea, its definition and implications. The Bahamas also asked for all references to the approach to be bracketed. Bolivia had also raised concerns about the One Health approach in previous meetings, where the draft action plan was discussed. On the other hand, developed country Parties such as France, Germany and Finland were opposed, and had pushed forward the inclusion of the One Health approach definition, developed by an expert committee which has ignored the development divide existing between countries. In the end, the move by the Bahamas was suppressed, and the document was adopted with minimal amendments, and with the new text proposals remaining in brackets. Belgium expressed its concerns and disappointment that the draft Global Action Plan on Biodiversity and Health would not be presented to COP15. It said the outcome of the meeting (a process for further work on a revised draft action plan for the consideration of SBSTTA and COP16) cannot be therefore considered as a success. Following the adoption of the document, the UNEP representative delivered a statement on behalf of the Quadripartite Alliance and a few other organisations in the Nature for Health Multi-partner Trust Fund. UNEP referred to the Quadripartite’s One Health Joint Plan of Action (2022-2026) and the Operational Framework on Biodiversity, Climate and Health under development by the Expert Working Group on Biodiversity, Climate Change, Health and Nature-Based Solutions and stated that the Secretariats of the Quadripartite Alliance collectively wish to ensure complementarity of the future Global Action Plan to the above-mentioned plan and framework. It must be noted, however, that these documents are not yet adopted or approved by the member states of these participating organisations. Specialised International ABS Instruments This agenda item focused on the indicative criteria which an instrument must satisfy to be considered as a specialised international ABS instrument in the context of Article 4, Paragraph 4, of the Nagoya Protocol. This provision allows for exemption from the application of the Nagoya Protocol, in respect of specific genetic resources covered by and for the purposes of such specialised instruments, provided that they are consistent with, and do not run counter to the objectives of the Convention and the Nagoya Protocol. The resumed meeting in Geneva only discussed a final document (L document). Even though many small and developing country Parties were not able to participate properly during the first part of the SBI-3 meeting held online, very limited time was allotted to discuss this document in person. The L document (CBD/SBI/3/L.6) contained a draft decision to be adopted by the Nagoya Protocol Parties and an annex which delineates the indicative criteria. The draft decision invites Parties and other Governments to take into account the indicative criteria while developing specialised international ABS instruments. However, as previously commented upon by TWN, the draft decision and the indicative criteria are loosely drafted, while compromising the legal certainty of fair and equitable benefit sharing. Further the draft decision does not establish a review mechanism either to determine or terminate the specialised status. Such a decision would negatively affect the obligations of the Convention and Nagoya Protocol. When the document was discussed, Ghana and Bolivia took the floor to make some additional changes. The African Group had already put the entire text in brackets during the online part of the meeting, due to its inability to effectively participate as a result of the digital inequities experienced, and in order to safeguard its interests. Ghana’s statement was also made on behalf of the African Group, and it expressed doubts on the mandate and capacity of the SBI to adopt a recommendation that is inconsistent with the objectives and provisions of the Nagoya Protocol. It stated: “SBI is established… with a clear mandate to develop recommendations that strengthen mechanisms to support implementation. This draft decision, if adopted in its current format, would severely weaken the provisions of the Convention and the Nagoya Protocol on fair and equitable sharing of benefits arising from the utilisation of genetic resources. This is not in line with the agreed role of the SBI.” Ghana went on to state that the L document “contains loose indicative criteria, without spelling out a clear legal process for assessing and determining whether instruments claiming specialised status would actually qualify for recognition under Article 4.4.” It also highlighted that the indicative criteria provided for legal certainty on access to genetic resources, but provided a discretionary loophole when it came to the sharing of benefits, which it said was unacceptable. Ghana further emphasised: “In this regard we are particularly alarmed by ongoing moves at the World Health Organisation to negotiate a new pandemic instrument and amend the International Health Regulations. In both these discussions the current proposals (on Article 4 Paragraph 4 of the Nagoya Protocol) would make it a legal obligation to provide access to pathogens, without any substantial provisions for sharing the benefits arising from such access.” Ghana then called on all developing countries to urgently alert their WHO negotiators and health attachés in Geneva on this issue, which would exacerbate existing injustices and inequities. Apart from amendments to the short explanations on the indicative criteria, “intergovernmentally agreed” and “legal criteria”, Ghana also proposed the incorporation of the following two new paragraphs into the draft decision: “4bis. Decides the Meeting of Parties to Nagoya Protocol shall act as the authority to assess, determine, review or terminate the status of instruments as specialized international access and benefit-sharing instrument in the context of Article 4, Paragraph 4, of the Nagoya Protocol based on the criteria provided in the Annex and the Parties to Nagoya Protocol can approach the Meeting of Parties for determination or termination of the status of instruments. 4ter. Requests the Executive Secretary to receive and submit instruments from the Parties to Nagoya Protocol for such consideration of meeting of parties as mentioned in the paragraph 4bis, 4 months before the Meeting of Parties, starting from the MOP5.” Following this intervention, Bolivia took the floor in support of Ghana’s statement and further raised the following issues:
Bolivia therefore requested to bracket not only the text in its entirety but also the annex in particular. The document was finally adopted with brackets on the entire text and also on the amendments proposed by Ghana. Digital Sequence Information (DSI) on Genetic Resources Another issue which has significant impact on both the CBD and its Nagoya Protocol is that of DSI. Advancements in genome sequencing technologies means that access to DSI may circumvent current benefit sharing arrangements. The discussions on this agenda item were long and protracted in the Contact Group, and a “Friends of the Co-Leads” (of the Contact Group] was formed to produce a clean text of the draft recommendation from OEWG-3. The Friends of the Co-Leads developed text over several sessions, with their final meeting starting at 1.15 PM on 27th March and which went up to 2.45 AM the next morning. The Contact Group was immediately called into session at 3 AM in the morning of 28th March, with very limited participation of the Parties who were not part of the Friends group. The resulting document contained three sections: first, the recommendation from OEWG-3; second, the recommended draft decision for COP-15, contained in an annex, which remains heavily bracketed and will be the basis of negotiations going forward; and third, a wholly bracketed appendix to the draft decision, that contains a proposal for the establishment of a multilateral benefit-sharing mechanism. The recommendation from the OEWG regrettably attempts to push forward two developed countries’ views, i.e. (i) treatment of DSI on genetic resources as separate from genetic resources, and (ii) Nagoya-plus considerations for achieving the fair and equitable sharing of benefits arising from the use of DSI on genetic resources (see 9 conditions below). As part of the recommendation, the OEWG requested the Informal Co-Chairs’ Advisory Group on DSI on genetic resources to continue its work on the assessment of consequences of potential policy approaches, options or modalities for benefit-sharing arising out of the utilisation of DSI on genetic resources. In doing so, the advisory group is mandated to take into consideration nine conditions mentioned in paragraph 5, which “recognizes” that a solution for fair and equitable benefit-sharing on DSI on genetic resources should inter alia:
Many of these conditions however go far beyond the Nagoya Protocol considerations and undermine the principle of fair and equitable benefit sharing. As such, paragraph 5 raised concerns amongst many Parties who did not participate fully in the Friends’ meeting or in the early morning Contact Group. At the final OEWG-3 plenary, Bolivia called out paragraph 5 and provided several reasons why paragraph 5 should be removed or bracketed. It commented on each of the conditions mentioned in paragraph 5 and highlighted the concerns. Bolivia was particularly not in agreement with the idea that a solution for fair and equitable benefit sharing “be consistent with open access to data”. The Co-Chair of OEWG-3 then suspended the meeting allowing for informal consultations to find a compromise. Several countries such as India, Pakistan, Venezuela, Ecuador and Guatemala reportedly had similar concerns as Bolivia. Finally, Bolivia had to settle for a compromise in which a sentence was incorporated in the meeting report, which limits the general application of the contents contained in the recommendation, including the paragraph 5 conditions: “This recommendation is intended to facilitate the further process on DSI issues and does not prejudge the definitions and the views on the parameters and principles governing a final solution.” Another meeting of the OEWG is now scheduled for 21-26 June in Nairobi, where no doubt difficult negotiations on DSI will continue. In conclusion, at the resumed Geneva meetings, developing countries were able to push back the developed countries’ agenda of diluting fair and equitable sharing of benefits arising from the utilisation of genetic resources, including of DSI. Consistent and persistent efforts are however needed in the next five months leading to COP15 in order to maintain the hard-won successes of these negotiations.+
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