Hopes Fading For Concluding Biodiversity Access And Benefit Sharing Negotiations?

[Update: the Convention on Biological Diversity has claimed a breakthrough was achieved on the final day of negotiations. Press release here [pdf].]

The clock was ticking with only a day to go in this week’s meeting of a UN working group on biodiversity trying to reach an agreement on a draft protocol text on access and benefit-sharing.

The resumed ninth meeting of the Ad Hoc Open-ended Working Group on Access and Benefit-Sharing is meeting in Montreal from 10-16 July to finalise a protocol drafted at the previous meeting of the working group. The work is being done under the UN Convention on Biological Diversity.

Should the text of the draft protocol be agreed, it could be adopted at the tenth meeting of the Conference of the Parties, in Nagoya, Japan, from 18-29 October.

Delegations read the draft protocol as proposed by co-chairs Fernando Casas of Colombia and Timothy Hodges of Canada but found it difficult to agree on different paragraphs, with amended languages being proposed by a number of countries, according to participating sources.

In particular, Article 4 on fair and equitable benefit-sharing, Article 5 on access to genetic resources, Article 5 bis, on access to traditional knowledge associated with genetic resources, and Article 12 on compliance with (international and) national legislation on access and benefit-sharing were discussed in depth and gaps could not really be bridged, said sources at the event.

After the first reading, the co-chairs issued a revised draft [pdf] with proposed modification on 13 July with a lot of bracketed text for further discussions. As of 15 July, delegations started a second reading of the text, a source told Intellectual Property Watch.

In discussions early in the week, Canada proposed removing reference to traditional knowledge (TK) in Article 4 to address the sharing of benefits derived from TK utilisation in a separate provision. This was opposed by the African Group and the Like-Minded Asia-Pacific group, according to the Earth Negotiations Bulletin, a reporting service.

Japan and Canada requested that reference to mutually agreed terms (MAT) be included in the article, while the African Group opposed reference to MAT as insufficient protection, as there have been cases of resources acquired without prior informed consent and MAT, and from ex-situ collections. The African Group also stressed the need for indigenous participation.

On access to generic resources, the European Union said that prior informed consent (PIC) need to be included in national legislation, while other delegations disagreed.

On 13 July, after the submission of the revised draft protocol, the African Group voiced concerns about the lack of compromise on the part of other regions, according to sources.

Discussions on the compliance with access and benefit-sharing negotiations took the good part of 14 July with divergent positions on different issues, such as on the requirement for accessing genetic resources with prior informed consent, with the Group of Latin American and Caribbean Countries (GRULAC) asking that genetic resources be accessed to prior informed consent as required by the country of origin, while the EU proposed to refer to the domestic legislation of the providing country. Delegates agreed to include reference to the country of origin upon further work on the language.

A delegate from the European Union told Intellectual Property Watch that the main objective of the week was to achieve maximum progress in negotiation with as few open questions as possible remaining. The main outcome of the meeting was to “move from a text submitted by the co-chairs, to a text negotiated by the parties,” he said. Never in the past have delegations discussed this level of specificity. The goal is to come up with a “text as clean as possible” and have clearly articulated political choices laid out in operational terms to choose from for the remaining open questions, the delegate said.

According to Chee Yoke Ling of the Third World Network (TWN) and François Meienberg of the Berne Declaration, “The European Union, Australia and Canada have put in many exclusions to the scope of the protocol and together with Switzerland have significantly weakened the language on compliance obligations and international tracking of biopiracy.”

The Biotechnology Industry Organization (BIO), advocating its priorities to delegates in Montreal, told Intellectual Property Watch that their specific concern was the possible undermining of IP rights. “Using IP or the patent system to enforce compliance in the access and benefit sharing regime is a significant concern of biotech industries,” and could jeopardise research and development financing in an already risky industry, said Lila Feisee, vice president for global intellectual property policy at BIO.

“There are other ways to address compliance issues than through the patent system, such as contracts and mutually agreed terms, she said.

According to Earth Negotiations Bulletin, delegates in intense negotiations since the beginning of the week had not yet reached the desired goal with no real convergence on difficult issues such as compliance or benefit sharing. The prospect of an agreement on the entirety of the protocol this week seemed to be fading as of last night, obscured by seemingly irreconcilable language, according to sources.

“Unless the protocol has a comprehensive scope and the compliance obligations are effective, the treaty will be meaningless,” said the TWN and Berne Declaration release.

If delegations cannot reach agreement on the draft protocol this week, negotiations will probably be carried on in Nagoya, according to sources.