CBD: POTENTIAL TEXT ON ACCESS AND BENEFIT SHARING REGIME TABLED

Delegates at a meeting of the Convention on Biological Diversity's (CBD) Ad Hoc Open-Ended Working Group on Access and Benefit Sharing in Granada, Spain from 30 January to 3 February examined draft text for an international regime on access to genetic resources and benefit sharing. The nature, sufficiency and methodology of a certificate of origin, source or legal provenance, and whether such a certificate should be linked to a mandatory disclosure requirement in patent applications, formed the focus of talks. Lack of agreement on whether the new regime should be legally binding led to the bracketing of substantial parts of the draft text of the pact, which was sent to the 8th Conference of the Parties (COP-8) to be held in Curitiba, Brazil on 20-31 March 2006.

Negotiations on the international regime were mandated by the seventh Conference of the Parties in 2004 (decision VII/19) and have already gone through one round in Bangkok, Thailand in March 2005 (see Bridges Trade BioRes, 4 March 2005).

Chair's text sparks controversy

Following general discussions on elements of the proposed international regime early in the week, Chair Margarita Clemente (Spain) on 1 February presented a draft text based on the last round of negotiations, discussions and proposed text that had been tabled by the African Group on the first day of talks. While the African Group, the Group of Like-Minded Mega-Diverse Countries and GRULAC stated their support for the document as a good basis for negotiations on an international regime, Australia, New Zealand, Korea and the EU suggested that the Chair's text -- which did not present the six options for an international regime offered during the 2005 talks, but rather includes text on objectives, scope, ownership, accessing genetic resources, accessing traditional knowledge, benefit-sharing, certificate of origin and other measures -- moves too fast in the direction of a legally-binding instrument. Instead, these countries, along with Switzerland, Canada, the US and Japan suggested that more research and studies were necessary, for example analysing gaps in the international governance of access and benefit sharing and exploring what certificates of origin, source or legal provenance could entail. They stressed that the document could be used for discussion about an international regime but not forwarded on to the COP as a proposed protocol.

Nonetheless, one delegate described the text as "smelling like a protocol", and talks continued on the basis of the text, with a revised version being presented on 2 February despite Australian, EU and Canadian claims that the drafts did not reflect the views they had expressed verbally and submitted in writing. After discussions on whether or not the most recent Chair's text should be sent in its entirety as a non-consensus document on the Chair's initiative to the COP, delegates stayed late into the evening of 2 February to insert brackets throughout the text to reflect lack of agreement on a number of provisions. Although there is no bracket on the entirety of the text, main parts of the text were labelled as such. For example, the title of the section reading "access to genetic resources" was bracketed owing to concerns from developing countries that a section shouldn't be committed to providing such access; rather, they suggested that references to access needed to be embedded in measures to govern and regulate the means by which admission to use genetic resources is granted. Several developed countries, however, stressed that the regime was as much about ensuring access to biological resources as benefits.

Nature, sufficiency and methodology of certificates subject of focused talks

Many delegates suggested that the international regime could potentially add value by creating a system for internationally standardised certificates of origin and/or legality. However, a number of developing countries rich in genetic resources argued that while such certificates could be a useful tool, they had to be linked to a requirement for national intellectual property rights law to require such certificates as a means to disclose the source of the resource, the existence of prior informed consent to access and benefit-sharing arrangements as prerequisites for the granting of patents. The developed country group resisted demands to include a provision on disclosure requirements in patent applications in the text, defending their position on similar grounds as they did at the WTO Hong Kong Ministerial Conference in December 2005 and at meetings at the Council for Trade-related Aspects of Intellectual Property Rights (TRIPS) on the TRIPS-CBD relationship (see Bridges Trade BioRes, 20 January 2006). Some suggested that an amendment to WIPO's Patent Cooperation Treaty could allow for a requirement on disclosure of source in national legislation. Others, including the US, argued that intellectual property rights (IPR) regulations should not be reformed at the international level. Developing countries' oft-stated conviction that disclosure of origin requirements in patent rules could ensure compliance with prior informed consent and mutually agreed terms goals, and their interest in incorporating some element of this debate into the text sent to the CBD COP, led to lengthy discussions into the night on whether the CBD is the appropriate forum to address this issue.

Nonetheless, delegates were able to agree that a CBD pact that includes internationally-approved certificates of origin could help achieve the mandate given to the Working Group. After consideration of the possibility of a web-based certification system that would facilitate permits on an individual basis, where concerns were raised about Internet access and administrative costs, delegates agreed to send a recommendation to COP-8 to suggest that an ad hoc technical expert group (AHTEG), consisting of Party-nominated experts, be established for the consideration of possible options on the form and content of an international certificate of origin/source/legal provenance. The text sent to the COP includes a section on the certificates, but references what such a certificate would be (ie, on origin/source/legal provenance), what it could include and who would issue it remain bracketed. Delegates expressed hope that the AHTEG would be able to resolve these thorny issues.

Scope touched on, but not delved into

Parties to the Convention were also split on whether derivatives of biological resources should be covered by the text, with developing countries arguing that since it is often the derivatives of the resources that get commercialised, mostly without benefits flowing back to the communities which provided the resources, derivatives must be part of any pact that aims to ensure fair and equitable sharing of the benefits arising out of the utilisation of genetic resources, as per the objectives of the CBD. Developing countries were split on whether benefit-sharing conditions should be determined nationally, or described in detail in the agreement.

Indigenous voices ask in

The need for prior informed consent and mutually agreed terms in setting up specific ABS deals on the traditional knowledge of indigenous communities and traditional communities was stressed by indigenous participants. They highlighted that their voices, as a key group of constituents, have to be heard and taken into account in negotiations that otherwise take place only between states. While a side-group discussed these issues at the ABS meeting and efforts by the working group on 8(j) to strengthen synergies between the two working groups will likely help to address these concerns, indigenous groups nonetheless expressed concerns about being left out of talks crucial to their human rights. The EU brought a last-minute proposal to the table calling on the group to continue to support the participation of mandated indigenous and local community representatives, including the International Indigenous Forum on Biodiversity, by incorporating them as participants in informal groups and debates during the negotiations on the international ABS regime. However, owing to the last-minute nature of the proposal and resistance from Argentina, Mexico and others, it was not included in the official recommendations, but will instead by included in the meeting report so that it can be discussed at the COP. Similarly, Canada asked at the last minute to submit its own, slightly toned down version of the EU statement and the Chair agreed to add it to the report.

ICTSD Reporting; "Draft of Global Regime On Genetic Resources Emerges At CBD," IP-WATCH, 2 February 2006; " Revised Biodiversity Draft Meets Strong Developed Country Opposition," IP-WATCH, 2 February 2006; ENB, Vol. 9 No. 340-48, 31 January - 3 February 2006.