Discussions on an international regime on the sharing of benefits deriving from genetic resources at a recent United Nations conference in Brazil focused mainly on procedure, leading some sources to argue that developed countries tried to derail the process. The final deadline for a decision has been pushed back to 2010.

The meeting was the eighth biannual Conference of the Parties (COP-8) of the signatories to the UN Convention on Biological Diversity (CBD). It lasted from 20-31 March and was held in Curitiba, Brazil.

“The COP decided to pursue negotiations on an international regime, with a deadline of COP-10,” to be held in 2010, a CBD spokesperson told Intellectual Property Watch. The four-year delay of the deadline appeared to be a disappointment for environmentalists, indigenous groups and proponent governments, while the outcome was received favourably by industry groups.

At issue is a proposal to set up an international regime on access to and sharing of potential benefits from genetic resources and traditional knowledge, which may be plants from the rainforest that can be used for medicines. Debate has risen as industries from developed countries, such as pharmaceutical manufacturers, have filed for patents on products derived from these resources, sometimes without sufficiently identifying or compensating the local source.

Developed countries want to “stop and delay” all discussions, University of Rome Professor Pierluigi Bozzi, who attended the meeting, said in an interview. The developed countries were led by the European Union and Australia, he said.

At the same time, “non-western countries led by Ethiopia on behalf of the African Group, Latin American countries, India and Malaysia have stressed the importance to begin negotiations and to adopt an international regime,” Bozzi said.

Another developed country official said that “developed countries have diverging views” on the importance of a regime.

A CBD working group held its fourth meeting, in Granada, Spain in February, and forwarded to the COP-8 a draft proposing an international regime for access and benefit sharing of genetic resources as well as a proposal for an international certificate of “origin/source/legal provenance,” which was seen by some as an alternative proposal to the regime (IPW, Genetic Resources/Biodiversity, 10 February 2006).

Bozzi noted that both proposals were seen as “open-ended,” or not fully agreed, but while they were not separate at the Granada meeting, they had been split up in Curitiba in an attempt to “break the stalemate.”

The Curitiba meeting, however, adopted a “general package” of documents, which will represent the foundation for the further regime discussions, the spokesperson said.

The documents that will form the basis for further negotiations are: the Granada text; a further elaboration of the matrix of the “gap” analysis (a study on the present regulations in the area of biodiversity to identify what is missing, referred to as “gap analysis”); the results of meetings of a group of technical experts on a certificate of origin; and additional analyses submitted by parties, according to the spokesperson.

“We consider this a step in the right direction and are pleased that we will move toward a regime,” the spokesperson said. “Consensus on the overall package demonstrates a commitment to move forward.”

A developing country official told Intellectual Property Watch that “the result on access and benefit sharing of genetic resources was positive,” welcoming the fact that the Granada text will continue to be negotiated. The delegate also said that the setting of a deadline for completing the work of the working group on the international regime was an “important signal of engagement.”

Disclosure issues such as prior informed consent and mutually agreed terms were also discussed. Delegates debated references to disclosure of origin of genetic resources in patent applications as part of the regime negotiations. Australia, Canada, the European Union and Japan opposed the idea, developing countries supported it, and Norway suggested finding more precise wording, according to the Earth Negotiations Bulletin, which is published by the International Institute for Sustainable Development in cooperation with the CBD secretariat.

In general, the meeting requested governments to support compliance with prior informed consent, and requested the working group that met in Granada to further consider such compliance measures, the Earth Negotiations Bulletin said. This was welcomed by developing countries, it said. “This indeed pushed forward discussions on disclosure of origin in the CBD framework.”

As part of the “document package” from COP-8, it has been decided that two permanent co-chairs will lead the work of the working group that met in Granada, which will meet twice before the COP-9 in Germany in 2008.

The elected chairs are Fernando Casas of Colombia – supported by Africa, Asia, Group of 77 and China, and the Latin American and Caribbean Group – and Timothy Hodges from Canada, with the support of the Western European and Other Group, according to the spokesperson.

The spokesperson said the funding has already been secured for the working group meetings with a combination of core funding and funds from a coalition of countries including Canada, Finland, Japan and Norway.

In addition, a technical expert group with the mandate to explore and elaborate on possible options for the international certificate of origin will be set up and report to the working group, sources said. The expert group will consist of 25 technical experts and seven observers, according to sources, and is scheduled to meet before the next gathering of the working group.

Spain and Peru offered to co-host the expert group in Lima, Peru, while the United Nations University said it would host a meeting of indigenous representatives to discuss the certificate issue prior to the expert group meeting, which Canada said it would support financially, according to the Earth Negotiations Bulletin.

There was a separate informal group at the meeting discussing this issue, according to Bozzi. It considered the bracketed list of potential rationale, objectives, features and implementation challenges of a certificate of origin/source/legal provenance, prepared by the working group in Granada, the Earth Negotiations Bulletin said.

Tomme Young of the World Conservation Union (IUCN) told Intellectual Property Watch that there was wide agreement among delegates on the establishment of this expert group. But this was with the condition emphasised by countries such as Australia that it has not been decided yet whether such a certificate should be part of the regime, the Earth Negotiations Bulletin reported.

Mandate to Negotiate or Just Procedure?

The spokesperson said that the COP had decided early during the two-week meeting “not to discuss the draft” from Granada but rather focus on how to proceed with the negotiations on an international regime. This included consideration of whether the discussions should be based on the Granada draft or not, the spokesperson said.

Not to discuss the draft was decided “partly because the text was heavily bracketed,” he said, adding that the “COP as a whole” reached this decision.

But some developing countries and others sought to discuss the text, sources said. “A few were actually hoping to make a leap forward in the ABS [access and benefit sharing] negotiations, with Brazil and Malaysia proposing to tackle substance in Curitiba,” said the Earth Negotiations Bulletin.

Opponents argued that the Granada draft was never intended for discussion at the COP. Young said that the Granada text was not a negotiating text but rather a “talking paper” or information. She also said that although it was sent to the Brazil meeting, the working group in charge of it never “reported out” to the meeting and indicated that its work was not done yet.

Young also said the working group that met in Granada was created to take the main negotiations on access and benefit-sharing of genetic material out of the COP, which is merely supposed to reach the final decision.

Norway parted company with developed countries by proposing to start talks not only on process but on a protocol (treaty text), but developing countries did not offer explicit support for the idea, according to one developed country source.

In Granada, the industry and developed countries took issue with the draft, saying that there was not a mandate to discuss a protocol and that the discussions were moving too fast (IPW, Genetic Resources/Biodiversity, 2 February 2006).

Side Events

Industry groups such as the American BioIndustry Alliance (ABIA) and the International Chamber of Commerce (ICC) held side events at the meeting. The ABIA side event focused on technology transfer and the need for incentives, with presentations on expericence with contract-based ABS approaches presented by Australia, ABIA, Costa Rica and the IUCN, one source said.

There was also an informal group at the meeting discussing indigenous people’s participation in the debate on access and benefit sharing of genetic resources. “We want participation in the negotiations of the regime at the same level” as in other CBD discussions, said Marcos Terena, coordinator of the indigenous groups presented at COP-8, according to the Inter Press Service News Agency. But he said it would not be until the next conference in two years that they would “be effective in influencing the proceedings.”