Burdened With Brackets, Biodiversity ABS Protocol Needs Political Will To Survive

Substantive progress eluded the negotiators of a draft protocol on biodiversity access and benefit sharing last week in Montreal, according to participating sources. The third attempt at finding consensus on key aspects of the text was unsuccessful and negotiations will carry on at the major United Nations meeting on biodiversity next month in Japan.

The United Nations Convention on Biodiversity (CBD) Interregional Negotiating Group on Access and Benefit Sharing met from 18-21 September with the hope of concluding negotiations on “all articles containing outstanding issues,” according to a “scenario note” [pdf] from the co-chairs Timothy Hodges of Canada and Fernando Casas of Colombia.

At stake is a binding instrument aimed at protecting biological resources from the taking of these resources without proper access to or benefits from products arising from them.

Outstanding issues can be found in several provisions, such as Article 3 describing the scope of the protocol, in particular about genetic resources acquired before the entry into force of the protocol, and what genetic resources may be excluded from the text, such as human genetic resources, or human pathogens.

As an example of the small differences that can hold up progress, on Article 4 on fair and equitable benefit sharing, the draft text shows three very similar variations: “to ensure … sharing,” or “with the aim of ensuring … sharing,” or “with the aim of sharing.” The International Institute for Sustainable Development’s Earth Negotiations Bulletin reported in a briefing note that delegates debated this topic last week. They said a group of Asian-Pacific countries sought the first option, but were opposed by the EU and Canada, who said the language would be “legally inappropriate.”

Article 5 on access to genetic resources and Article 6 on research and emergency situations – whose title itself is heavily bracketed – have been discussed at length, according to participating sources. Paragraph b of Article 6 about “emergency situations, including serious threats to public health, food security or biological diversity,” and the sharing of pathogens is entirely bracketed.

After the close of last week’s meeting, an advance unedited version of the draft protocol, referred to as the report of the meeting of the interregional negotiating group has been posted as a meeting document for the Resumed Ninth meeting of the Ad Hoc Open-ended Working Group on Access and Benefit-Sharing, which will take place in Nagoya on 16 October, on the eve of the tenth meeting of the CBD Conference of the Parties (COP) from 18-29 October.

The draft protocol, introduced in March at the ninth meeting of the Ad Hoc Open-ended Working Group on Access and Benefit-Sharing in Cali, Colombia, gathered the essential parts of the international regime but has since been the subject of countless amendments in the form of bracketed text leaving several options for further discussion (IPW, Biodiversity/Genetic Resources/Biotech, 6 April 2010).

A further meeting in Montreal in July to try to obtain consensus on key issues failed to issue a text agreeable to all parties and bracketed text was again found throughout the draft text (IPW, Biodiversity/Genetic Resources/Biotech, 16 July 2010).

Access to genetic resources and the fair and equitable sharing of benefits arising from their use is one of the three fundamental objectives of the Convention, according to the CBD website. CBD members created a working group to address concerns of biopiracy and the equitable sharing of benefits derived from genetic resources. The working group on ABS has a mandate “to elaborate and negotiate an international regime on access to genetic resources and benefit sharing with the aim of adopting an instrument/instruments to effectively implement the provisions in Article 15 and 8(j) of the Convention and the three objectives of the Convention,” it said. The working group established the interregional group to negotiate a text on this.

World Waiting for Good News

At a time when global awareness of the severe impacts of rapidly diminishing biodiversity is rising, CBD leadership is eager for members to successfully complete their work. “The world is waiting to hear the good news. A robust protocol on access to genetic resources and the fair and equitable sharing of the benefits from their use is a major tool for the conservation and sustainable use of the biodiversity of our planet,” Ahmed Djoghlaf, executive secretary to the CBD, said in a release [pdf].

In the less-enthusiastic-than-usual press release, the CBD said both chairs “expressed satisfaction with the discussion but stressed the need for governments to move forward … we go to Nagoya with a number of key issues to finalise,” it said.

A European Union delegate told Intellectual Property Watch that the last meeting that progress was made on some issues while on some others, like the relationship between the ABS protocol to other international instruments, the movement was “going backward.” There was no movement on monitoring of usage of genetic resources with some disagreement on a system of disclosure request and checkpoints put forward by developing countries, while developed countries favoured a much lighter method.

The inability to find consensus on the scope of the instrument was a disappointing outcome for the EU, the delegate said, adding that the EU was “very committed to find compromise solutions.”

“There was no progress and reasons behind this are questioned as many feel it was a waste of time,” a developing country delegate told Intellectual Property Watch. “More brackets were added and a few removed so there will be lots more to do in Japan,” she said.

Checkpoints for Compliance?

Christine von Weizsaecher, president of Ecoropa, a European network on “ecological reflection and action” closely watching CBD negotiations, told Intellectual Property Watch that the issues of “derivatives” and “utilisation” of genetic resources had been hotly debated last week. She also said that the issue of non-commercial use and research which some countries would like exempt from the scope of the protocol was contentious as “the grey zone between non-commercial and commercial use offers large, well-organised loopholes.”

Compliance is also a difficult topic, she said. “Local communities must be able to find out whether big companies comply with the agreements,” she added. “Easy to verify checkpoints are needed.”

Developing countries declared that there is a indivisible package in the upcoming CBD decisions and “will put their foot down,” and let other CBD issues remain undecided unless there is a “meaningful” ABS regime, von Weizsaecher said, adding that political will could allow the finalisation of the ABS protocol in Nagoya.

“The general feeling seems to be one of commitment towards” adopting the protocol in Nagoya, Sonia Peña Moreno from the International Union for Conservation of Nature told Intellectual Property Watch. Developing countries feel “that the protocol will only be possible if there is a commitment and political will from the developed countries,” she said. That would include taking into account their specific concerns, for example the inclusion of derivatives in the protocol.

Indigenous Groups Marginalised

According to some participants, the negotiating leverage of indigenous peoples – who are often the most affected by biopiracy – might be slipping. Indigenous and local communities are allowed to propose text, but it goes into the documents only if it is supported by some countries, a CBD source said. That makes the parties’ support necessary for any proposal. The indigenous group walked away from the negotiation table during the two last meetings as a sign of protestation before coming back after some arrangements were found to answer their requests, according to a source.

The draft protocol text will be “advanced for finalisation and approval” at the tenth meeting of the COP next month, the CBD said.