Negotiations On CBD Biodiversity Regime Reveal Disagreements

GRANADA, Spain – A meeting of government officials responsible for biodiversity here last week adopted draft recommendations on a possible international regime for biodiversity. But there were tough behind-the-scenes negotiations between all parties involved in the run-up to the adoption.

The proposed regime would regulate access to and benefit sharing of genetic resources between users and providers. In most cases, developing countries are the providers and developed countries or international companies are users, according to Biswajt Dhar of the Indian Institute for Foreign Trade.

The 30 January-3 February meeting, hosted by the United Nations Convention of Biological Diversity (CBD) and the UN Environment Programme, was the fourth gathering of an ad hoc open-ended working group on access and benefit sharing of genetic resources. There were more than 450 participants.

On the third day of the meeting the Spanish chair, Margarita Clemente, presented a draft that was met with strong opposition from developed countries as well as industry and later underwent two revisions. Some sources argued that the chair was inexperienced and that new and unexpected procedures were followed, while others pointed out that Clemente was part of the Spanish delegation at a CBD meeting in Bangkok in February 2005 and is thus “very familiar with the issues.”

The meeting was divided during the negotiation of the drafts into a closed “friends of the chair” group, which had some 20 participants, according to one source, and a focus group. Both negotiated into the early hours of the final day, and at one point a Brazilian delegate feared that the two groups were duplicating each other’s work.

The chair’s group developed the main draft text of the regime. The focus group, meanwhile, prepared two drafts on specific issues. All three documents will be forwarded to the Conference of the Parties in Brazil on 20-31 March, which includes all countries that have ratified the CBD.

Focus Group Subject to Difficult Negotiations

The focus group discussed two issues; an international certificate of origin, source, or legal provenance; and measures to ensure compliance with prior informed consent and mutually agreed terms. Prior informed consent ensures that access to genetic resources is subject to the prior informed consent of the contracting party providing such resources and involves principles of legal certainty and clarity. Mutually agreed terms between stakeholders and parties are guidelines ensuring fair and equitable sharing of benefits.

The focus group, chaired by François Pythoud of Switzerland and Consolata Kiragu of Kenya, became subject to intense debate among delegates, and was followed closely by industry representatives, as these are some of the most controversial aspects of an international biodiversity regime because it could involve the intellectual property scheme.

In the texts under debate in the focus groups, words and phrases were added, deleted or marked as unresolved with brackets, such as whether the Conference of the Parties should mandate the establishment of an ad hoc technical expert group on the certificate or only consider establishing it.

Disagreement further arose over the composition and mandate of the ad hoc expert group, such as whether to recommend the conference only consider the “design” of the certificate or, as was finally agreed, “elaborate possible options for form and intent, practicality, feasibility and costs.”

There also were disagreements among delegates as to whether this discussion belonged at the CBD at all, with Australia, Austria and Canada arguing that the World Intellectual Property Organization (WIPO) would be the most appropriate body. But a Brazilian delegate said there was no need for the issue to be limited to one organisation, and the work being done at WIPO was without prejudice to negotiations at the CBD.

These countries, together with New Zealand, were very active in the negotiations, as were countries such as Brazil, Ethiopia, Kenya, Malaysia and Mongolia.

US Government, Industry Groups Work Delegates

The US mission also was well represented with some seven participants at the meeting, a US source said. The United States has not ratified the CBD and therefore is not allowed to take the floor of meetings. Some of the developing countries that have ratified the CBD had only one representative present, such as Mongolia.

At the meeting, the United States worked closely with other country representatives such as Australia, which has been the case at previous CBD conferences, one source said. The source added that it is not uncommon for materials to be handed over to certain developed country delegations that have joined the CBD. The Australian intellectual property office was not present during these negotiations, an office spokesperson said.

But Geoff Burton, head of the Australian CBD delegation, told Intellectual Property Watch that “at international meetings the Australian delegation acts in Australia’s national sovereign interest only and does not represent any other country. That was the case at Granada.”

In the focus group, US officials as well as industry representatives were seen talking directly to other delegates. Sources familiar with the CBD said that this is permissible, but pointed out that at this particular CBD meeting there were fewer non-industry-related non-governmental organisations than had been the case in the past.

According to the participant list, there were 39 NGOs represented and 43 indigenous and local community organisations. The NGOs include industry-related as well as non-industry organisations. In addition, fifteen industry organisations attended with 28 participants.

The industry representatives came from among others the International Chamber of Commerce (ICC), American BioIndustry Alliance (ABIA), the Biotechnology Industry Organization, Pharmaceutical Research and Manufacturers of America (PhRMA), CropLife International as well as individual companies such as drug maker Eli Lilly.

Also in attendance was the Australian APEC (Asia-Pacific Economic Cooperation) Study Centre, which takes a position close to the industry view. Based on the participant list in the section of “CBD parties,” two members from the APEC centre are listed under Australia.

But one of the co-chairs of the focus group told Intellectual Property Watch that there was not really a division between developed and developing countries in the discussions, but rather between delegates who “really know the technical issues with certificates” and those who were not familiar with the issue.

A PhRMA representative pointed out that different biotechnology industries, such as agricultural and industrial, were represented at the meeting. He said industry was not talking to any group or delegation in particular but was trying to talk to everyone.

An ICC representative said that the business community welcomed an international regime as long as it was “workable and transparent,” noting that for businesses, it is “better to have clear, workable rules.” He said that parts of the rules are already there since mutually agreed terms basically mean a contract in “business language.” As for prior informed consent, this process belongs to national frameworks, he said. “We [the industry] need genetic resources,” he said.

ABIA President Jacques Gorlin said his group preferred that the parties providing the genetic resources were paid up front and that if a product were subsequently developed, the parties “can talk about sharing later,” adding that nothing should come as a right.

The head of the Mexican delegation told Intellectual Property Watch that “some progress” had been made at the meeting, and he welcomed the fact that issues such as the certificate and disclosure of origin had been separated as disclosure was more related to intellectual property.

A reference to intellectual property in the chair’s first draft was later dropped as at least one developed country preferred so. It stated that, “Such certificates of legal provenance or utilisation and, if existing, evidence of prior informed consent and mutually agreed terms related to arrangements should be a precondition for patentability and other intellectual property applications.”

Brazil later suggested, however, including language on disclosure in patent applications, covering indications of origin of a genetic material, prior informed consent of those providing the resources and benefit sharing between the provider and user of the genetic resources.

Procedure and the Legal Perspective

Criticism of the procedure came from many sides, including international organisations. Senior Legal Officer Tomme Rozanne Young of the World Conservation Union told Intellectual Property Watch that it was “not possible to negotiate a new draft from scratch with 200 people,” adding that the international parties needed to see and identify the issues first. Therefore the issue of a draft was premature, she said.

Young said there seemed to be some lack of awareness of what the process normally is, and that it would have been better if there had been a committee with a permanent chair which would go through the issues, with a budget, instead of a protocol “created by someone one afternoon.” She said the meeting had had the “mandate to prepare a mandate,” not a protocol.

One US representative said that it appeared that some countries that saw that the licenses for use of genetic resources are not working at a national level wanted to take it to the international level with the hope that it would work there.

But a Brazilian delegate said the problem is that its rules for licensing are being disregarded by users. Brazil does not have a certificate requirement in its national law, but does require authorisation for access to genetic resources and associated traditional knowledge. The authorization is given by a management council and requires prior informed consent and benefit sharing. The problem, the delegate said, is that many users, mainly foreigners, do not ask for authorisation and disregard the rules.

Pierluigi Bozzi of the University of Rome said in an interview that there clearly were two groups at the meeting; the developing countries, which wanted an international regime on genetic resources, versus the developed countries that did everything they could to stop it.

He said that it was impossible to finish a real draft during a one-week meeting, but that the chair had proposed a draft to “push the process.”

There was much discussion of whether “legally binding” should be kept in the headline of the protocol (it was dropped in the final draft). Bozzi said that some countries had wanted it in so that the regime could be considered not “soft law,” which does not typically carry enforcement procedures.

But the regime would be based on the CBD which would act like a “constitution” for the regime, and although the CBD is not soft law, it does not give specific obligations on some issues, he said.

Bozzi also said that the industry’s argument that it did not want a regime and that it was better with a free market than a regulated one reflected a lack of real macroeconomic analysis. He said that there could not be a free market if it was unclear who owned what.

Bozzi also said that industry would benefit from the certainty of a regime. For instance, he said, Mexico had had few contracts for genetic resources with companies in recent years because of the possibility of unfair agreements due to uncertainty.

Desh Deepak Verma of the Indian Ministry of Environment and Forests said the developing countries were happy the process had not been derailed and although a decision would probably not be reached in Brazil but rather at the next Conference of the Parties in 2008, all the elements were now ready for discussion. He hoped the developed countries would cooperate to remove the brackets in Brazil.

Some developed countries differed in their support for a potential regime, in part due to their national laws. For instance, two delegates from Norway said in an interview that Norway was clear in its support of prior informed consent and disclosure of origin in patent applications, which is required in Norwegian patent applications. Norway also supports the principle of benefit sharing, they said. Norway believed the drafts were a “step in the right direction” and felt it reflected its view, they said.

First Week Examines Local and Indigenous Practices

The first week of the CBD meeting, 23-27 January, focused on article 8(j) of the CBD, which relates to the respect, preservation and maintenance of knowledge, innovation and practices of indigenous and local communities (IPW, Genetic resources, 26 January).

On the first week, the International Institute for Sustainable Development reported that, “participants to the Article 8(j) working group met in plenary and adopted recommendations on participatory mechanisms, ethical code of conduct, genetic resource restriction technologies, indicators, recommendations to the UN Permanent Forum on Indigenous Issues, progress reports on implementation and integration, composite report on status and trends of traditional knowledge (TK), international regime on access to genetic resources and benefit sharing, elements for a sui generis system for the protection of TK.”

The nine recommendations from the first week will be forwarded to the Conference of the Parties. There were 370 participants at this meeting.