TWN Info Service on Intellectual Property Issues (June08/04)
5 June 2008
Third World Network

The 9th session of the Conference of Parties of the Convention of Biological Diversity met in Bonn from 19-30th May. One of the major issues discussed was the international regime on access and benefit sharing.

Below are two reports on the meeting.

Regards
Sangeeta Shashikant
Third World Network
email: ssangeeta@myjaring.net

Agreed roadmap to complete access/benefit sharing regime
SUNS #6485 Friday 30 May 2008

Bonn, 29 May (TWN) -- The roadmap which outlines the next steps to be undertaken to complete the negotiations for the international regime on access and benefit-sharing in 2010 has been agreed upon by Parties to the Convention on Biological Diversity (CBD).

The 9th meeting of the Conference of the Parties (COP 9) to the CBD is ongoing in Bonn from 19 to 30 May. The Informal Consultative Group on Access and Benefit Sharing (ABS) was established last Wednesday for the duration of the Bonn meeting to try to make progress in difficult negotiations that began in 2005.

The Open-ended Ad Hoc Working Group on ABS that is responsible for the international regime negotiations has met 4 times since 2005 on this issue. Under the roadmap, there will be 3 more negotiation meetings, with the next and 7th meeting of the Working Group to be held in the first quarter of 2009.

Three meetings of technical experts will also be held to provide options and scenarios for the negotiators of the Working Group on ABS. The experts will work on the list of questions developed in the Bonn meeting as part of the agreed terms of reference.

The nature of the international regime has been one of the most contentious issues so far.

Prevention of biopiracy and setting in place a legally-binding international system to ensure the fair and equitable sharing of benefits from the use of genetic resources and associated traditional knowledge are the objectives consistently promoted by developing countries, especially the Group of Like-Minded Megadiverse Countries (LMMC) and the Africa Group.

Developed countries such as Canada, Australia, Japan and New Zealand have been strongly opposing a legally binding regime all along. The European Union though reluctant was not as vocal.

At this week's Bonn meeting, China proposed a compromise that envisaged both legally and non-legally binding measures. This was accepted by the LMMC (of which China is a member) and tabled to the delegates in the Informal Consultative Group.

There was subdued applause across the room on late Tuesday night when Malaysia, speaking for G77 and China, read out the compromise text that it hammered out with Canada, the lone delegation that resisted references to any legally-binding instrument on the international regime. This resistance nearly threatened to unravel the growing consensus on the draft decision regarding the process or roadmap that will lead to the adoption of the international regime in 2010.

The compromise text that was finally accepted by Canada reads as follows:

[The Conference of Parties] "Further instructs the Working Group, after the negotiation of comprehensive operational text at its seventh meeting, to start the 8th Working Group meeting by negotiating on nature, followed by clearly identifying the component of the International Regime that should be addressed through legally-binding measures, non-legally binding measures or a mix of the two and to draft these provisions accordingly."

With this achieved, the G77 and China agreed to remove the bracketed text in paragraph 11 of the draft decision on the roadmap concerning the establishment of the technical experts group, the subject of negotiations over the last few days.

The bracketed text that refers to the open-ended and intergovernmental nature of the expert group was earlier inserted by Ethiopia when there was uncertainty on Tuesday afternoon over the draft decision caused by Canada's insistence that they cannot make any more compromises on any references to the legally binding nature of the ABS instrument.

As it stands, the decision means that a defined number of experts can now be convened by the Executive Secretary of the CBD to give options and scenarios on the list of questions developed in Bonn on 3 topics: compliance; concepts, terms, working definitions and sectoral approaches; and traditional knowledge associated with genetic resources.

The Bonn roadmap also sets out the composition of the technical experts groups.

For the issue of compliance, there will be 30 regionally balance experts (6 experts per region) who will be nominated by the Parties, and 10 observers, 3 of whom will come from indigenous and local communities.

For the issue of concepts, terms, working definitions and sectoral approaches, there will be the same number of 30 experts coming from the 5 regions of the world and 15 observers spread out among the different sectors using genetic resources, including 3 observers representing the indigenous and local communities and the remaining balance coming from international organizations and agreements as well as non-government organizations.

For the issue of traditional knowledge associated with genetic resources, again there will be 30 regionally balanced experts with 15 observers, 7 of whom are coming from the 7 regions where indigenous and local communities will be coming from, with the possibility of indigenous and local communities being nominated also by the Parties as experts.

The logic is that as experts nominated by Parties, these indigenous and local communities can then speak and make recommendations on the issue of traditional knowledge associated with genetic resources.

However, the representatives of indigenous and local communities in the small group meeting in Bonn that negotiated this issue were reluctant about this idea, saying that this is a highly political process which may result in them not being able to fully ventilate their concerns if they are made an integral part of the delegations from governments who will speak as experts on traditional knowledge associated with genetic resources.

There was considerable debate, too, on the duration of each of the 3 meetings of the Working Group on ABS.  The EU insisted that each of the future meetings be limited to five working days, despite the consensus of everyone in the room that it should be seven consecutive days.

The EU said that their position is due to budget concerns - they believe that financial resources are not sufficient for the number of meetings envisioned for the roadmap. The EU was concerned with the proliferation of ad hoc technical experts group being considered to be established in so many decisions of the CBD, from agrofuels, to monitoring and assessment to forest biodiversity and even dry and sub-humid lands in addition to the three expert groups for ABS. This was also the question raised by Japan.

However, the ABS Working Group Co-Chair Fernando Casas of Colombia said that it is not for the budget group to solve substantive problems, such as the number of days of meetings of groups established to deal with issues identified by Parties. Instead this has to be set by the Parties themselves and it is for the budget group to find the means within which to implement such policy directions.

The final agreement was that the next 3 meetings of the Working Group on ABS would be held, "subject to the availability of funds", over seven consecutive days. This means that the meetings will be funded not from the core budget of the CBD but will rely on voluntary commitments from donors.

Some donors came forward yesterday with Sweden announcing 180,000 euro for the Working Group meeting and another 60,000 euro for the experts group meeting on traditional knowledge. Spain said it will provide funds to the next meeting.

Namibia announced its intention to host the meeting of the experts group on concepts, terms, working definitions and sectoral approaches, which Canada said it will help fund.

The Secretary of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), Shakeel Bhatti announced an offer to be the venue of the next Working Group meeting (Rome). Norway wanted language which emphasizes the "close links between the Convention and the ITPGRFA" aside from welcoming the experiences of the ITPGRFA on access and benefit-sharing.

This language, however, was opposed by the Philippines who said that such language in the draft decision is unbalanced as the efforts of others who have also expressed their interest to support the work of the ABS Working Group will then have to be reflected in the decision which will eventually make the discussion on this time-consuming and difficult.

Canada offered a way out suggesting that such kinds of efforts will just have to be reflected in the COP 9 report on this agenda item.

With one working day remaining, the Small Group chaired by Namibia that had worked on the terms of reference for the technical experts groups will discuss the main components of the international regime.+

CBD meeting dominated by talks on access and benefit sharing regime
SUNS #6484 Thursday 29 May 2008

Bonn, 27 May (Chee Yoke Ling) -- Negotiations on an international regime on access and benefit sharing (ABS) are taking centre stage while continuing to show a divide on North-South lines at the current meeting of the Conference of Parties to the UN Convention on Biological Diversity (CBD) which started here on 19 May.

The international regime is expected to set the rules on how benefits from the use of genetic resources and associated traditional knowledge are to be fairly and equitably shared between the provider countries (mainly developing countries) and the indigenous and local communities which are the holders of the knowledge, and the companies and research institutions which are mainly from developed countries.

Underlying the discussions is an attempt - led by developing countries and resisted to varying degrees by developed countries - to address the problem of biopiracy.

Negotiations on the ABS regime started last Wednesday and went through the weekend. The Informal Consultative Group on ABS chaired by Fernando Casas of Colombia and Tim Hodges of Canada is open to all Parties, non-Parties and observers to the COP. A mandate from COP 9 is expected to be agreed upon by Friday that will chart the course of negotiations for the next two years.

So far, there is agreement in the Informal Consultative Group on the following: the annex of the report from the 6th meeting of the ABS Working Group will form the basis for future negotiation of the international regime; the ABS Working Group will meet three times prior to COP 10 and each meeting will be preceded by two days of informal consultations; and the terms of reference for three inter-sessional technical experts meetings.

A Small ABS Group chaired by Sem Shikongo of Namibia was set up last week to work on the terms of reference for the three technical experts meetings that will give technical and legal advise on a list of questions developed in Bonn to assist in the ongoing negotiations of the international regime. The questions deal with three topics: compliance (with national ABS laws); concepts, terms, working definitions and sectoral approaches; as well as traditional knowledge associated with genetic resources. On Monday night, agreement was reached on the terms of reference for these three meetings after long-drawn discussions and debates.

A proposal by the EU to include "international access standards" for the work of the technical experts met with strong objections from the Group of Like-Minded Megadiverse Countries (LMMC), that has been at the forefront of the demand for a legally binding international regime on ABS for many years.

(The LMMC countries, all Parties to the CBD, are Bolivia, Brazil, China, Colombia, Costa Rica, Democratic Republic of Congo, Ecuador, India, Indonesia, Kenya, Madagascar, Malaysia, Mexico, Peru, Philippines, South Africa, and Venezuela, and hold the majority of the Earth's biodiversity.)

Gurdial Nijar of Malaysia, speaking for the LMMC, said that this is not a technical issue but a political one that can only be resolved in the negotiations of the ABS Working Group. While developing countries have initiated the international regime to ensure that there is fair and equitable benefit sharing to meet the 3rd objective of the CBD, developed countries insist that there should be an international obligation to provide access to genetic resources.

Throughout the last week, the EU has been insisting on including the issue of international access standards, supported by Canada, Australia, Japan and Switzerland. The question that was proposed for inclusion in the experts meeting was: "Identify how the international access standards for further consideration might contribute to addressing the compliance challenges that have been identified".

Developing countries' frustration at this move was evident. Fernando Coimbra, the lead negotiator of Brazil, said: "We are beginning to seriously question the legitimacy of this exercise, we are beginning to question seriously if we are on the right path".

At the height of the debate over the weekend, Tewolde Egziabher of Ethiopia said: "I don't know what access standards actually mean, it's another delaying tactic, it's been pushed, and pushed, and pushed ad nauseam ... Please, let us be serious."

The EU eventually withdrew their proposal on international access standards. Accepting the withdrawal, Antigua and Barbuda, the G77 and China Chair, said: "We will, however, watch the process carefully to ensure that the sometimes unbalanced expertise between developed and developing countries is not used to advance the agenda of any one Party or group."

The drawn-out discussions on the five-page list of questions had detracted the entire negotiations of the international regime from taking up substantive issues at the COP when the Parties actually have the authority to deal with them, especially on key issues such as the objectives, nature and scope of the international regime.

The G77 and China spokesperson added that "as the Expert Group is to feed into the negotiating process of the Working Group on ABS, we predicate our decision for the acceptance of the Expert Group on a firm commitment by us all that we are working towards a legally binding regime on the basis of China's proposal. Otherwise, we feel it would be a waste of money, time and resources."

China's proposal deals with the disagreement between developed and developing countries on whether the international regime should be legally binding. China has proposed that COP 9 instruct the ABS Working Group to determine which components of the international regime will be binding and non-binding. The proposal leaves some room for the international provisions to be binding and non-binding, but not just one or the other.  Negotiations on this issue are expected to be raised to the ministerial level when the COP 9 High Level Segment begins on Wednesday.

The international regime negotiations have been protracted and difficult since its mandate was hard fought for in 2004. Since then, the Open-ended Ad Hoc Working Group on ABS has met four times, and in the last COP in Curitiba, Brazil, developing countries pushed extremely hard for the decision to "continue the elaboration and negotiation of the international regime". COP 8 instructed the ABS Working Group "to complete its work at the earliest possible time before the tenth meeting of the Conference of the Parties" in 2010.

In Bonn, developing countries are also pressing for an agreement that the international regime will be ready for adoption at COP 10 but developed countries continue to resist this, too.

For many months prior to COP 9, the Parties could not even agree on which documents should form the basis for negotiations. This was largely due to developed countries' reluctant to commit to a legally binding agreement on ABS. Australia, Canada, Japan and New Zealand have been vocal in delaying and even objecting to a range of issues, including questioning the need for the international regime. The United States, though not a Party to the CBD, shares the same position. The European Union sees itself as providing a bridge among the positions, but it falls significantly short of what the majority of developing countries want and need.

The main force for a legally binding international regime is the LMMC. The Africa Group is the other active set of countries in support of a legally binding regime.

Last Friday, Germany's Environment Minister Sigmar Gabriel, who is chair of COP9, expressed cautious optimism following the first week of negotiations. "We still have a very long way to go, but we have clearly succeeded in generating a motivating and constructive atmosphere for COP 9 which helps us to move forward in our difficult negotiations," said Gabriel. "With 191 Parties under pressure to reach unanimity, it is natural that results can only be achieved after a long and hard struggle," said Gabriel, who considered it positive that the ABS talks have for the first time entered a concrete phase.

"For me, it is essential to have a clear roadmap for the ABS negotiations," said Gabriel. In his opening speech when COP 9 formally commenced last Monday, Gabriel committed to do his "utmost" to achieve progress in this issue, asking for a clear Bonn mandate because a regime "has to be in place in 2010". "Developing countries rightly describe it as biopiracy when industrialised countries help themselves to genetic resources in rainforests, produce medicines from these resources, but do not pay a single cent back in return," said Gabriel.

"We need equitable benefit sharing. The countries of origin - in which the majority of our planet biodiversity can be found - want to get something back ... in my view, the financial volume is not even the priority aspect here. It is a matter of principle. The industrialized world has to recognize that the yields from biological resources have to be shared with those who have safeguarded them to this day for mankind".

With protected areas as another key issue for decision-making at the Bonn meeting, the Minister was also quick to point out that "the CBD is not a nature conservation convention. It is much more than that. It is about how to organize our life on earth. It is about protection of nature, about the sustainable use of biodiversity and not the least about the access to and the fair sharing of benefits that arise out of genetic resources".

In a meeting with NGOs last Thursday night, the head of the German delegation, Astrid Klug, reiterated the importance of ABS. She called it a "turning point for the CBD that will make or break the Convention".

According to another senior German official at the NGO meeting, there was a "hectic telephoning" by some delegates back to their capital cities at the Minister's statement on benefit sharing. He also said that Minister Gabriel's opening statement was supported by Chancellor Angela Merkel.

The importance of the international regime negotiations is also underscored by the fact that COP 8 designated Casas and Hodges as Co-Chairs of the ABS Working Group to steer the negotiations to its completion. This 4-year term is unusual as the common practice is to appoint chairpersons at every COP meeting. (The last time this was done was when Veit Koester of Denmark was designated to chair the negotiations of another historic agreement under the CBD, the Cartagena Protocol on Biosafety).

During the opening plenary, Casas said, "While difficult, the COP 8 mandate is by no means unattainable. No one is underestimating the obstacles, but significant progress has been made".

Both the chairpersons stressed that honest differences are healthy and that a road map and clear milestones are essential to take the process toward concrete options, then to text, to a consolidation of options and to the final international regime.

Hodges stressed that there is a genuine chance to reach agreement on the international regime, and sufficient financial resources as well as political commitment are needed.+