TRADE @ COP-8: ACCESS AND BENEFITS-SHARING, INCENTIVE MEASURES

Among the issues on the table at the Eighth Conference of the Parties (COP-8) to the Convention on Biological Diversity (CBD), to be held from 20-31 March in Curitiba, Brazil, countries will be discussing how to proceed in the discussions on a possible international regime to govern access to genetic resources and the sharing of benefits derived from their use (ABS). While several developing countries are likely to try to use COP-8 as an opportunity to build political momentum for the negotiations on the international ABS regime, most developed countries have been less enthusiastic about the regime. Parties to the CBD will also try to unblock stalled discussions on positive and perverse incentives in preparation for the mandated review at COP-9.

ABS talks need renewed mandate

While the creation of a draft text for the proposed international regime at the last meeting of the Ad Hoc Open Ended Working Group on Access to Genetic Resources and Benefit-Sharing in February 2006 (see Bridges Trade BioRes, 3 February 2006) appeared to suggest some progress in the negotiations, more sceptical observers have predicted that several more years of negotiations might be necessary. They point to the numerous brackets still contained in the text, and the fact that the draft text does not reflect many of the options presented at previous Working Group meetings.

At COP-8, Parties will be asked to reconvene the Working Group and determine the Group's work schedule "so as to expedite and facilitate the early elaboration, negotiation and conclusion of the international regime on access and benefit sharing". Parties will also consider proposals on different areas that the Working Group would be requested to focus on, among them measures to ensure compliance with prior informed consent (PIC) and mutually agreed terms (MAT) provisions, including the issue of disclosure of origin/source/legal provenance. In addition, they will decide on the creation of an ad-hoc technical expert group to elaborate options for form, intent, practicality, feasibility and costs of an international certificate of origin/source/legal provenance.

Opinions have been divided on the extent to which the COP will actually enter into substantive debates on ABS or will rather stick to procedural discussions. Among the key questions for the negotiating process will be whether the COP will appoint a permanent Chair for the negotiations or continue to operate through the Working Group. Some have raised concerns that the chair of the Working Group is usually not appointed until the first day of the meeting and therefore is not able to carry out preparatory activities before or after the meeting. However, given that some countries continue to question whether there is actually a need for a negotiated international regime, they may resist the establishment of a process that could be seen as recognising the need for negotiations.

At the same time, the high political weight given to the issue by several developing countries, including Brazil as Chair of the COP, could facilitate informal talks at the meeting. COP-8 Chair, Brazilian Environment Minister Marina Silva, highlighted the political capital invested in the issue when she noted that "we are going to work hard in order for the international regime to be binding, and so that it is not understood as a tool to facilitate access, but to ensure protection and sustainable use and the distribution of benefits". However, developed countries are likely to try to throw sand in the gears of this process by pushing for a stronger focus on a gap analysis and the divergences in opinions on the current draft text in the Working Group.

New approach to incentives needed

Parties will also examine progress on the work plan on incentive measures, adopted at COP-5 in 2000, most notably texts on perverse and positive incentives forwarded by the tenth and eleventh meetings of the CBD Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) respectively. Concerns have been raised by several Parties that debate about the WTO-compatibility of measures adopted under Article 11 of the CBD have crowded out other issues that rightfully belong in CBD discussions on incentives. Article 11 of the Convention says that Parties shall "adopt economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biological diversity". Incentives can be direct or indirect; positive, negative or perverse; focus on the community or national level; and may involve cash or in kind inducements to conserve biological diversity, use biological resources sustainably and equitably share the benefits arising from the use of genetic resources.

While CBD discussions on incentives are intended to encourage Parties to identify policies that have, or could have, the effect of inducing actors to achieve or not compromise the objectives of the CBD, in practice discussions have to a large extent focused on concerns over agricultural subsidies. The potential for such subsidies to be included in the definition of either 'positive' or 'perverse' incentives was the subject of intense discussions at SBSTTA-10, which in turn led SBSTTA-11 to suggest changes in the CBD process on incentives in order to more carefully deal with the politically controversial elements, including those relating to trade. These elements will be examined in the in-depth review of the Convention's work on incentive measures, which is to begin shortly after COP-8 for COP-9, on which COP-8 has been requested to elaborate terms of reference, and to identify the best mechanisms to drive preparatory work for the major review and elements of a revised work programme.

Some Parties have suggested that encouraging trade in biodiversity-related goods and services, such as by drawing connections to WTO negotiations on environmental goods and services (EGS, see Bridges Trade BioRes, 3 March 2006), could act as a positive incentive for the sustainable use of biodiversity. Others, however, such as China, Argentina, New Zealand and Brazil, have suggested that the CBD should avoid stepping on the toes of the WTO, which is in addition to the work on EGS also engages in talks on regulating agricultural and fisheries subsidies. Some civil society groups have voiced scepticism that trade can act as a positive incentive for biodiversity, arguing instead that most incentives for increased trade -- for example, cuts to tariffs or reductions in non-tariff barriers -- have perverse, adverse effects on biodiversity.

Additional Resources

The CBD Web Portal for COP-8 is available here.

IUCN Position papers on COP-8 topics are available here.

"A new approach to Incentives under the Convention on Biological Diversity," by IUCN, is available here.

ICTSD Reporting; "'Shark Parks?' Oceans said in need of protection," REUTERS, 15 March 2006; "Brazil to Press for Global Biodiversity Regime," IPS, 14 March 2006.