A last-chance negotiation of a draft protocol text on biodiversity access and benefit-sharing has been given yet another chance as delegates parted ways on Friday in Montreal without an agreement but with a tentative plan to reconvene to try to tie it up before a major UN Convention on Biological Diversity meeting in October.

The seven-day meeting ending Friday was characterised as “very positive” by several participants while the Convention on Biological Diversity issued a press release [pdf] describing the event as the theatre of “major breakthroughs on a text of a legally binding protocol,” and enthusiastically said, “History will recall that the Aichi Nagoya Protocol on access and benefit-sharing was born here in Montreal.”

The resumed ninth meeting of the CBD Ad Hoc Open-ended Working Group on Access and Benefit-Sharing took place in Montreal, Canada from 10-16 July and was meant to finalise the protocol drafted at the previous meeting in Cali, Colombia, in March.

The two meeting co-chairs brewed hopes that the protocol would be finalised in time for its possible adoption at the tenth meeting of the CBD Conference of the Parties in Nagoya, from 18-29 October.

In Montreal last week, delegations achieved two readings of the draft protocol. Many countries proposed amended text during the first reading. This led co-chairs Fernando Casas of Colombia and Timothy Hodges of Canada to issue a revised draft on 13 July with proposed modifications (IPW, Biodiversity/Genetic Resources/Biotech, 16 July 2010).

After the second reading, a text titled “Draft Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity,” was presented at the closing plenary and adopted by the Working Group for the remainder of its discussion.

This last text is from the interregional negotiating group, which consists of up to five representatives from each regional group and two representatives each from indigenous and local communities, civil society, industry and public research groups, plus the president of the Conference of Parties (COP) and the incoming (COP) president. While the text was negotiated in the interregional negotiating group, it is endorsed by the working group as a whole and is thus the working group’s text, according to official sources. Indigenous and local communities are allowed to propose text, but it goes into documents only if it is supported by some countries, a source said.

Resumed ninth meeting documents

Some articles in particular saw divergent opinions and delegations found it difficult to agree, according to sources. These included in particular, Article 5 on access to genetic resources, Article 5bis, on access to traditional knowledge associated with genetic resources and Article 12 on compliance with international and national legislation on access and benefit-sharing.

“After the meeting we are a lot more optimistic than before the meeting,” said a European Union delegate, although many issues remain contentious, he said. For example, on Article 5bis, delegations could not agree on sanctions for the use of traditional knowledge illegally acquired. One of the problems, he said, is that there is no international agreement on the definition of traditional knowledge.

On Article 12.2 on sanctions to address non-compliance with fair and equitable sharing of benefits, countries could not reach agreement, the delegate said. Article 13 on monitoring and reporting the utilisation of genetic resources was not agreed on either, according to the delegate, with the African Group and some Latin American countries insisting on the necessity of checkpoints, disclosure requirements and certificates of compliance. Some delegations like the EU, said that this system would work for some transactions, but not for all, as it would be costly and ineffective and runs against reality. With so many different users, it is not possible to have one-size-fits-all system, the delegate said.

A new issue is a push from the European Union to include guaranteed access to “pathogens” for the World Health Organization in the case of an “emergency situation.” The problem with this, said an African delegate, is that no guarantee has yet been made at the World Health Organization on the sharing of benefits when access is granted. Also at issue, the African delegate said, is that definitions are lacking for ‘pathogens’ and what constitutes an emergency – as well as who gets to decide when one is happening. A EU delegate said an ABS protocol should not prevent a quick response from WHO in case of a virus threat.

Negotiations on an access and benefit-sharing text related to influenza virus have been ongoing at WHO for several years, but legally binding rules on access and benefit sharing have yet to be finalised. There also is an ongoing review of the WHO’s emergency committee, which is facing criticism of the way it decided to declare the 2009 pandemic outbreak.

A separate discussion took place about derivative products from genetic resources, where countries for the first time tried to identify all the parties’ position on the subject. “We just had a very informal discussion to explore common understanding of the parties,” he said.

“There is hope,” François Meienberg of the Berne Declaration told Intellectual Property Watch. “But the main issues will only be resolved in Nagoya, and depending how this will be done, the protocol will be a success or a failure,” he said.

Some issues remain, according to him, such as the “temporal scope,” such as whether the protocol covers genetic resources accessed after the protocol entered into force, or whether any benefits accrued after the protocol entered into force. “This will make a huge difference.” Checkpoints are important, he said. “Without specific mandatory checkpoints like patent offices, market registration, the enforcement of the access and benefit-sharing requirements are an illusion.”

For Lila Feisee, vice president for global intellectual property policy at the Biotechnology Industry Organization (BIO), the new text sill contains the issues that could possibly undermine IP rights leading to research and development financing difficulties. “We will continue to reach out to delegations between now and Nagoya to ensure that whatever is agreed to ultimately will preserve innovation and research and development in the biotech space.”

A tentative date has been set aside for the additional meeting before Nagoya. According to sources, the meeting could take place in September. Montreal and Bangkok were proposed to hold the meeting, according to a source.

Kaitlin Mara contributed to this story.