UN Claims Victory In Biodiversity Talks, But Outcome Not Certain

The UN Convention on Biological Diversity last month hailed Cali, Colombia as the birthplace of a protocol they hope will lead to an international regime on access and benefit-sharing by their October 2010 deadline. But, while it is clear the late March negotiation in Cali brought significant progress, participants reported difficult disagreements and in the final days, signs that there is yet more work to be done.

The 22-28 March Cali meeting was meant to be the final gathering of the CBD Working Group on Access and Benefit-Sharing before an October decision-making conference of the parties to take place in Nagoya, Japan, which is also the deadline for finalising the international regime. But an inability to reach agreement meant the meeting was only adjourned, not finished, according to sources.

Out of the Cali meeting came a draft protocol text upon which negotiations can move forward towards creating the international regime. But the text is still open for modification and additions, which could be time-consuming.

The CBD secretariat said that the dates and venue of a resumed meeting for the working group have yet to be decided, but participants in the meeting told Intellectual Property Watch it would likely be in June or July, and likely at the CBD’s headquarters in Montreal.

Despite an auspicious beginning in Cali inwhich delegates aimed to finish work using a co-chairs’ “guidance note” [pdf], designed to offer parameters for the week’s discussions. But something seemed to shift towards the end of the meeting.

“I think in the end there are too many issues people wanted to see in the draft that were not there, and as spirits flared, more and more of this was raised,” said Maria Julia Oliva, senior advisor on access and benefit-sharing at the Geneva-based Union for Ethical BioTrade, who participated in the Cali meeting.

Major outstanding issues appear to be which parts of the regime will be subject to compliance measures and how to handle products derived from genetic resources; technology transfer and traditional knowledge are also important.

“Developed countries, apart from Norway and Switzerland, were basically unwilling to have obligations for strong compliance,” and also “do not want to have disclosure requirements in patent applications as an obligation,” Chee Yoke Ling of the Third World Network, who also participated in the meeting, told Intellectual Property Watch.

The draft protocol was originally written by the co-chairs of the Working Group on Access and Benefit-Sharing, sources said. The latest available version of this draft, dated 25 March, can be found here [pdf]. There is a slightly later version of the text, which participants said is dated 27 March and is expected to form the basis for future work.

The 27 March draft text for the international regime contains a footnote saying that it was “not negotiated” and that parties can still make amendments and additions, according to the International Institute of Sustainable Development’s Earth Negotiations Bulletin, which reported on the event from Cali.

The draft protocol matters because it consolidates into a readable, usable document the various essential parts of the international regime.

A previous attempt, the so-called “Montreal text” created at the working group’s last formal meeting in November (IPW, Biodiversity/Genetic Resources/Biotech, 24 November 2009), was considered unusable due to both its length and the number of bracketed areas of texts (the Earth Negotiations Bulletin counted, and found [pdf] “a whopping 3400 pairs” of them). Square brackets are used to indicate areas in the text where there is not yet agreement, or where there are several phrasing options.

Draft Text

The 25 March draft protocol contains provisions for equitable benefit sharing, fair access to genetic resources and related traditional knowledge, and several measures to ensure that national legislation reflects the rights of genetic resources and knowledge holders and that international cooperation can be used to share information, monitor and track the use of genetic resources, and ensure compliance with the regime.

“At its core [the international regime] is a compliance and enabling regime for access and benefit sharing,” said the guidance note by the working group chairs, explaining that it is intended to address how compliance with national laws can be ensured once genetic resources have left the country. While parties to the protocol will have to “ensure that an opportunity to seek recourse is available under their legal systems … in cases of disputes” if this protocol text is adopted, it does not appear to contain an independent dispute settlement mechanism in cases of non-compliance with this or any other aspect of the regime.

The protocol also lists potential benefits that could be linked with the sharing of genetic resources, including licensing fees, research funding, joint ownership of intellectual property, technology transfer and capacity building, training in use of genetic resources in countries where they are located, access to scientific information and research directed towards priority needs such as health and food security.

Meanwhile, the International Union for Conservation of Nature (IUCN) released a statement on 23 March saying the world had failed to meet the CBD target of reducing the rate of biodiversity loss by 2010 and that “we are currently witnessing the greatest extinction crisis since dinosaurs disappeared from our planet 65 million years ago.”