CBD sets 2010 deadline to set up global ABS regime
8 April, 2006
Lim Li Lin (TWN), Curitiba (Brazil), 3 April 2006
Delegates and NGOs heaved a collective sigh of relief, when all the decisions of COP 8 were finally adopted. Almost to the end, it was not clear whether a decision on ABS would be reached at all.
The two-week meeting was held in Curitiba, Brazil immediately after a one-week Meeting of the Parties to the Cartagena Protocol on Biosafety, a protocol of the CBD dealing with the regulation of genetically modified organisms.
The final COP 8 decision on ABS comprised a compromise deal on 3 sticky issues. Firstly, it set a deadline to finalise the work of the ABS working group before the tenth conference of parties (or COP 10). This implies that negotiations on an international ABS regime should be completed by 2010, as the COP 10 is scheduled to meet in that year.
The second and third components of the package relate to whether to include 'derivatives' of genetic resources in the scope of the international ABS regime.
The developing countries insisted that derivatives (such as extracts of genetic resources or chemical compounds derived from such resources) had to be included, as these are the components often or mostly used in the making of products based on genetic resources. This was opposed by several developed countries.
As no definite or explicit solution to this was possible, the language in the final Decision left this issue open for future negotiations to decide on. The future discussions on derivatives will be in at least two areas: (i) an internationally recognized certificate of origin/source/legal provenance (being discussed by a technical experts' group); and (ii) measures to ensure compliance with the prior informed consent of the contracting Party providing genetic resources and mutually agreed terms on which access was granted.
The issue of the fair and equitable sharing of benefits, arising from the use of genetic resources has been a very contentious outstanding issue in the CBD. The CBD has three objectives: the conservation of biological diversity, the sustainable use of the components of biological diversity, and the fair and equitable sharing of benefits arising from the use of genetic resources.
While progress has been made on work programmes and decisions on the first two objectives, the issue of access and benefit sharing (ABS) has remained unresolved. The CBD was adopted in 1992, and only now, 14 years later, agreement on the process and deadline to negotiate and elaborate an international regime on ABS has finally been reached.
This issue has polarized developing and developed countries for many years. Biodiversity is concentrated mainly in developing countries, which are the main providers of genetic and biological resources. Traditional knowledge is also held and developed over millennia by indigenous people and local communities on the uses of the biological resources.
Much of these resources are taken from developing countries, usually with no knowledge or permission from the countries or communities, by companies from the developed world, and utilized in extremely lucrative pharmaceutical, agricultural, industrial and cosmetic production.
On top of that, patents granting 'ownership' over this biological and genetic material and associated traditional knowledge are often obtained or claimed by many of these companies.
Usually, little or none of the profits and benefits that these companies derive from the use of the biological resource and the associated traditional knowledge is shared with the countries concerned, much less with the communities and indigenous people who have used, preserved and developed the knowledge about the biological resource.
When the CBD was being negotiated, developing countries fought hard to place the 'biopiracy' issue in the forefront, resulting in the third objective of the CBD.
A recent study released by the US-based Edmonds Institute and the African Ce ntre for Biosafety in South Africa has pointed to 36 cases of biopiracy from African countries.
Developed countries like the US (a non-Party to the CBD), Australia, Canada, New Zealand and Japan, have consistently fought against recognition of this phenomena, and have attempted to prevent or delay any meaningful progress on this issue in the CBD.
Developing countries on the other hand have insisted on a legally binding international ABS regime to address biopiracy effectively. They have argued that national-level regulation is inadequate because of the transboundary nature of the problem, and the fact that ensuring compliance with any such national laws places the burden on developing countries themselves.
Progress on ABS has been slow through the years. There have been four meetings of the 'Open Ended Ad Hoc Working Group on ABS' under the CBD. The last meeting in Granada in January had been a turning point in the protracted discussions, as it put together a working negotiating text, placed in an Annex, which however is square bracketed (indicating noconsensus) in many parts.
The developing countries had expected and hoped that COP 8 would endorse the Granada Annex as the basis for further ABS negotiations.
COP 8 was meant to decide how to take the work forward and set a deadline to finalise an international ABS regime, as well as consider other approaches such as an internationally recognized certificate of origin/source/legal provenance, measures to support compliance with the prior informed consent of the provider country and mutually agreed terms on which access was granted, and possible indicators for ABS.
At the start of the meeting, the lines were already clearly drawn. Developing countries, including the Africa Group, Latin America and the Caribbean (GRULAC) and the Like-Minded Megadiverse Countries (LMMC, comprising 17 countries) insisted that the heavily square-bracketed text in the Annex from the Granada meeting be the basis for negotiating the ABS regime.
Developed countries on the other hand tried to undermine the text, instead insisting on work to focus on 'gap analysis', to assess the need for an international regime on ABS.
In a 'contact group' (a small group formed to work through difficult issues) that was formed, the Group of 77 and China proposed some text as a compromise.
However, Canada supported by Australia counter-proposed that the Granada Annex be drawn upon only 'as appropriate' at the next Working Group meeting, along with other inputs such as the final version of the gap analysis and the matrix, the progress report on the work of genetic resources and national property law, and 'other inputs submitted by Parties relating to ABS'.
This drew angry reactions from developing countries. Ethiopia said the Canada-Australia suggested move would definitely delay the process. It said this delaying tactic could backfire, as developing countries may take unilateral action in the form of strict domestic laws if the international regime on ABS could not be achieved.
To resolve the highly contentious issue, a smaller group was convened, called 'Friends of the Co-Chairs of the Contact Group'. It comprised Australia, Canada, New Zealand, EU, Ethiopia, Malaysia, Brazil and Mexico.
The developing countries insisted that paragraph 2, dealing with the Granada Annex, had to be dealt with first before any discussion could take place on the work to be undertaken at the fifth and sixth Working Group meetings.
The developed countries, and the Co-Chair, Francois Pythoud from Switzerland, had tried to move the discussion in the opposite direction. They also suggested that the annex need not be part of the COP 8 decision, but merely referred to, claiming it made no difference if the annex formed part of the COP 8 decision, or was merely referred to in the decision.
This drew furious reactions. Brazil declared it would not participate in such a Friends of the Co-Chairs group, if this was to be the basis of the discussions. The persistence and insistence of the G77 and China paid off. The Friends of the Co-Chairs met to discuss paragraph 2 well into the early hours of the morning on the last day of the meeting, according to the basis that developing countries had insisted on.
The final COP 8 decision does include the Granada Annex and gives it pre-eminence as the main document for the purposes of continuing to elaborate and negotiate the international regime. Other documents, such as the outcomes of the meeting of the technical group of experts on the certificate of origin/source/legal provenance to be held, as well as a progress report on the gap analysis and the matrix are also transmitted to the next Working Group meeting as inputs.
The final COP 8 decision on ABS comprised a three-pronged package deal that reflected a delicate balance of the competing interests on the sticking points.
First, the Decision included a deadline to complete the ABS working group's work before COP 10, to be held in 2010.
The second and third parts are on whether to include 'derivatives' of genetic resources in the scope of the international ABS regime. The developing countries insisted on including derivatives, while most developed countries opposed.
The language in the Decision left the derivatives issue open for future negotiations to decide on, in at least two areas: an internationally recognized certificate of origin/source/legal provenance; and consideration of measures to ensure compliance with the prior informed consent of the contracting Party providing genetic resources and mutually agreed terms on which access was granted.
Developing countries wanted the ABS work to be completed either through two more one-week Working Group meetings or one two-week Working Group meeting in order that the international ABS regime on ABS can be adopted at the next COP in 2008. Developing countries were supported by Norway.
(Developing countries wanted the cost for the Working Group meeting(s) to come from the core budget of the CBD. The meetings in Curitiba had already suffered from a lower level of developing-country participation due to insufficient and late pledges from donor countries.)
The LMMC proposed that some discussions to remove the annex's square brackets be held in the second week of COP, to accelerate the process.
Developed countries such Australia, New Zealand, Canada, Japan, South Korea and the EU indicated they did not want such quick progress.
The final COP decision requests that the ABS Working Group continue the elaboration and negotiation of the international regime, and instructs the Working Group to 'complete its work at the earliest possible time before the COP 10'. The COP 10 is expected to be held in 2010.
The Decision's inclusion of a clear deadline for completing the Working Group's work (i. e. to finalise the ABS regime) is a significant step forward. In the negotiations at the COP 8, the developed countries in general had not wanted any clear deadline commitment, and some developed countries wanted no commitment to an international regime at all.
These divergent positions were reflected in the earlier draft text as '[with a view to its completion and adoption by the ninth meeting of the COP]' and '[with a view to its early completion]'. The former was watered down to later read '[and endeavour to complete it by the ninth meeting of the COP and no later than at its tenth meeting]'.
Later in the Contact Group, Japan asked for the paragraph specifying the timeline to be deleted completely. When this was questioned by Malaysia and Ethiopia, Japan was unable to defend its position and was forced to allow the two bracketed text, reflecting the two divergent views, to be the point of discussion, rather than deleting the paragraph altogether.
The Co-Chair from Switzerland himself said that the better option in his opinion was 'with a view to its early completion.' His statement and his handling of the Contact Group which favoured the developed countries upset many delegates and observers.
The other outstanding issue was the issue of derivatives of genetic resources which the G77 and China have been insisting must be part of the scope of the international ABS regime.
In the production of pharmaceutical and other products based on genetic resources, usually only the extract or a chemical compound is used which is a derivative, or a part of the genetic resource itself. If the regime's scope does not include derivatives, then there may not be much point to it, as the bulk of what such a regime should attempt to regulate lies in derivatives.
This issue surfaced in discussions on the terms of reference for the technical experts' group which will meet to discuss an internationally recognized certificate of origin/source/legal provenance before the fifth Working Group meeting, as well as in the consideration of measures to ensure compliance with the prior informed consent of the contracting Party providing genetic resources and mutually agreed terms on which access was granted.
Earlier, in the first week of the COP 8 meeting, the Working Group chair (Sem Shikongo of Nambia) convened a small informal consultation comprising Mexico (as convener), Australia, New Zealand, Canada, Japan, the EU, Malaysia, Brazil, Uruguay and Uganda, in an attempt to remove the square brackets from the indicative list of issues that Parties and other stakeholders had been invited to submit views on, as inputs for the technical experts' group.
Due to the intransigence of Australia, no agreement could be reached, and the entire list was deleted, as Australia refused to remove any square brackets despite numerous qualifications that other Parties were prepared to offer. As it was merely a list which indicated the issues that views could be submitted on, the list should not be bracketed in any way, as this would indicate that views were not sought on the issues that were square bracketed. All issues should simply be listed, and views could be submitted on all issues, and this would include issues that were important to all sides in the spectrum of positions.
The final decision for the terms of reference for the experts' group includes a provision to 'analyse the distinctions between the options of certificate of origin/source/legal provenance and the implications of each of the options for achieving the objectives of Article 15 and 8(j) of the Convention'.
An earlier draft had included the words 'related to genetic resources and associated traditional knowledge and [derivatives]' after the word 'provenance'. The compromise was to delete the entire reference to genetic resources, traditional knowledge and derivatives, since the developed countries refused to agree on including derivatives.
As it was not possible to agree to remove the brackets around the word 'derivatives', the developing countries felt it would be better to delete the entire reference to what the technical experts' group could address in its scope of work. In this way, nothing is explicitly included or excluded, and thus all the issues are still on the table for the group to discuss.
Article 8(j) relates to the knowledge, innovations and practices of indigenous and local communities. Article 15 is the Article in the CBD relating to ABS, and stipulates that the 'benefits arising from the commercial and other utilization of genetic resources' should be shared fairly and equitably with the contracting provider Party. 'Utilization of genetic resources' is also broad enough to include derivatives in its scope.
The final part of the package deal was also about derivatives, this time in the section on measures to support compliance with the prior informed consent of the contracting Party providing genetic resources and mutually agreed terms on which access was granted.
This entire section had been in square brackets, with numerous brackets in different parts of the text as well. In the end, a clean text was produced, which inter alia, 'invites relevant for a to address and/or continue their work on disclosure requirements in intellectual property rights applications taking into account the need to ensure that this work is supportive of and does not run counter to the objectives of the Convention, in accordance with Article 16.5'.
Article 16.5 recognises that patents and other IPRs may have an influence on the implementation of the CBD and seeks to ensure that such rights are supportive of and do not run counter to the objectives of the CBD.
Again the word derivatives had to be excluded, in relation to 'measures to support compliance with prior informed consent in cases where there is utilization of genetic resources or associated traditional knowledge, in accordance with Article 15 of the Convention and national legislation'.
However, 'utilisation of genetic resources' is interpreted by the G77 negotiators to allow for the inclusion of derivatives. Also, the reference to national legislation clearly indicates that even if the CBD were to exclude derivatives in the end, national legislation can and will include derivatives.
COP 8 elected 2 permanent Co-Chairs for the future Working Group meetings -- Fernando Cassas from Colombia, and Tim Hodges from Canada. The fifth and sixth Working Group meetings will be held before COP 9, and the fifth meeting will be held immediately after the 8(j) Working Group meeting.
The technical experts' group will meet in Lima, Peru in the second half of this year, before the fifth meeting of the Working Group. A meeting of indigenous peoples and other stakeholders will also be held immediately before the expert group meeting, organised by Canada and the United Nations University.
The fifth Working Group meeting will be financed from the core budget of the CBD, and the sixth, through voluntary contributions. By the end of COP 8, a number of pledges had already been received totaling $450,000 from Canada, Finland, France, Norway, the Netherlands, Sweden, Switzerland and Ireland.
The next Conference of Parties of the CBD (COP 9) and the next Meeting of Parties to the biosafety protocol (MOP 4) will be held in Germany in 2008.