BRIDGES
Trade BioRes - SPECIAL CBD COP-8 UPDATE No. 1
22 March 2006
Table
of Contents
- Acess
And Benefit-Sharing Discussions Kick Off At COP-8
- Trade @ COP-8 - What to look out for...
- COP-8 Events & Resources
NOTE
TO SUBSCRIBERS
During COP-8, BRIDGES
Trade BioRes will provide periodical updates on news, activities and negotiations
related to trade, sustainable development and biodiversity (available
at http://www.ictsd.org/biores).
ACCESS
AND BENEFIT-SHARING DISCUSSIONS KICK OFF AT COP-8
On the first day of substantive discussions at the Eighth Conference of
the Parties (COP-8) to the Convention on Biological Diversity (CBD) -
convening from 20-31 March in Curitiba, Brazil - negotiations on access
and benefit-sharing (ABS) related to genetic resources and associated
traditional knowledge got underway as the first item on the agenda of
Working Group II. While much of the debate focused on procedural issues
dealing with the next steps in the discussions on an international ABS
regime, proposals were clearly influenced by underlying differences over
the legal nature, objectives and scope of the regime. As could be expected
on the first day, major divisions remained unresolved, although some progress
was made on more specific issues.
The COP had been asked by the Ad Hoc Open Ended Working Group (AHWG) on
Access to Genetic Resources and Benefit-Sharing to address four issues
related to ABS: (1) the work schedule for the AHWG; (2) whether to convene
an expert group to discuss the possible use of an international certificate
of origin and the terms of reference for such a group; and whether to
request the AHWG to examine (3) measures to ensure compliance with prior
informed consent (PIC) provisions and (4) indicators for ABS.
Procedural debate highlights different levels of ambition
The differing expectations for an international ABS regime were most apparent
during debates on the next steps for the AHWG. Canada and Australia stressed
the need to gain further experience with the Bonn Guidelines - which provide
guidance to Parties in the development of national ABS regimes - before
moving ahead on discussing the need for and possible elements of an international
regime. Developing countries have been pushing hard for negotiations on
a legally binding instrument with a particular emphasis on implementing
measures for users of genetic resources to ensure fair and equitable benefit-sharing.
They argue that such a regime is necessary given that provider countries
often lose control over their genetic resources once they have crossed
the border. These proposals have also been supported by Norway which has
suggested developing a Protocol to the CBD to address some of the legally-binding
elements of the regime.
These divisions where clearly reflected in proposals on the process for
the AHWG. Given the complexity of the issue, Canada requested more time
to consider the need for negotiations on a legally binding instrument,
and asked for a decision on this question to be postponed until COP-9.
In contrast, developing countries - including the African Group, the Latin
American and Caribbean countries (GRULAC) and the Group of Like-minded
Megadiverse Countries - would like to see negotiations on such an instrument
already concluded by COP-9, using the draft text developed at the last
AHWG as a basis for discussions. Some countries, including India, Malaysia
and Kenya, even suggested starting the negotiations already at this COP.
Also important in this context was the question whether to designate a
dedicated Chairperson to the negotiations which could help provide greater
continuity to the process. The EU, supported by Switzerland, proposed
that two co-chairs should be nominated to head the negotiations, one from
a developed and one from a developing country. Canada supported the suggestion
for co-chairs, but would prefer them to be responsible only for preparatory
work in the intersessional periods rather than the entire negotiating
process. Norway would have liked to formalise the process even more, calling
for the establishment of an intergovernmental negotiating body with a
Chairperson and a bureau.
The number of meetings for the AHWG proved less controversial. Developing
countries proposed to hold at least two meetings of the AHWG, or one meeting
that could run for two weeks. While Canada was open to two meetings, they
would prefer to keep them to just one week. In addition to a decision
by the COP, the number of meetings will also be dependent on the availability
of funds which would need to be provided either by one or more Parties
or out of the CBD core budget.
Delegations widely supported the involvement of indigenous peoples in
the deliberations, although mechanisms for doing so effectively - including
during the formulation of negotiating positions at the domestic level
and during multilateral negotiations - remain to be elaborated.
Intellectual property issues divide Parties on compliance
Discussions on a mandate for the AHWG to examine the feasibility, practicality
and costs of ensuring compliance with prior informed consent requirements
in provider countries were dominated by intellectual property-related
considerations, although Parties at this stage only provided general suggestions
rather than engaging in detailed discussions. The debate focused on bracketed
references in the draft decision forwarded by the AHWG which dealt with
the need to examine requirements to disclose the origin of genetic resources
and traditional knowledge in intellectual property applications. Such
a requirement was already included as one of the available compliance
measures in the Bonn Guidelines at COP-6, but developing countries would
like to secure international backing for this proposal.
An explicit mandate in the CBD could also strengthen their case for making
the necessary changes to the WTO Agreement on Trade-related Aspects of
Intellectual Property Rights (TRIPS) as proposed by a number of developing
countries (led by India and Brazil) in the TRIPS Council. During discussions
at COP-8, Norway supported the inclusion of disclosure requirements in
the TRIPS Agreement which it felt would help achieve prior informed consent
and benefit-sharing objectives.
Echoing similar debates in other negotiating processes dealing with genetic
resources, Parties were also divided over whether compliance measures
- and more generally the international regime - should cover derivatives
and products of genetic resources, which developed countries, including
Canada, Switzerland, the EU and Australia opposed. This issue is likely
to come up again repeatedly during talks on the ABS regime
Expert group to look at certificate of origin
Parties generally agreed on the need to establish an expert group that
could examine options for the form and intent, practicality, feasibility
and costs of an international certificate of origin/source/legal provenance.
The question whether such a certificate could be used to allow patent
examiners to easily determine whether an applicant has complied with national
ABS laws is likely to arise during discussions of the expert group. In
this context, Mexico suggested that the expert group should assess certificates
that are linked to intellectual property rights and those that are not.
Other possible areas of discussion proposed by Canada included, among
others, an assessment of the economic impacts of certificates as well
as impacts on research & development; the use of voluntary versus
mandatory certificates; enforceability mechanisms; and a costing of the
various options. New Zealand would also like to see practical implementation
studies of existing certification schemes to be carried out. Parties will
continue their discussions on this item based on draft terms of references
forwarded by the AHWG.
Discussions on ABS indicators set for AHWG-5
A proposal by the AHWG to discuss the need and possible options for indicators
for access and benefit-sharing at its next meeting met with widespread
support by Parties.
Next steps
The Chair of Working Group II, Sem Shikongo of Namibia, established two
small informal groups who were tasked with discussing the terms of reference
of the expert group and the engagement of indigenous peoples. The groups
are expected to report back to the Chair by Wednesday afternoon or Thursday
morning. Regarding other outstanding issues, the Chair will come back
with proposals for further structuring further discussions.
Additional Resources
Documents of the meeting are available at http://www.biodiv.org/meetings/cop8mop3/cop-08.shtml
Daily coverage of COP-8 is provided by IISD Linkages, http://www.iisd.ca/biodiv/cop8/
For further information on certificates of origin, see http://www.ias.unu.edu/research/certificatesoforigin.cfm
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.
COP-8
Events & Resources
Global Biodiversity
Forum at COP-8
24-25 March, Curitiba,
Brazil: GLOBAL BIODIVERSITY FORUM. The Forum will be held just prior to
the high-level segment of the eighth meeting of the Conference of the
Parties to the Convention on Biological Diversity (CBD CoP8) with a focus
on the 2010 biodiversity target. Organised by IUCN's Countdown2010 initiative,
the proposed workshop streams are financing biodiversity action for achieving
the 2010 targets; measuring progress toward the 2010 targets; thinking
global and acting local - taking 2010 forward; and 2010 for 2015 - Reaffirming
the role of biodiversity in achieving MDGs. For further information contact
Laurence Christen, tel: +41 22 999-0223; fax: 999-0025; email: gbf@iucn.org;
Internet: http://www.gbf.ch/
ICTSD side-event
Tuesday 28 March,
18h30-20h15: DISCLOSURE
REQUIREMENTS IN PATENT APPLICATIONS: A TOOL AGAINST MISAPPROPRIATION OR
AN OBSTACLE TO INNOVATION? Organised by ICTSD, ABS Governance Programme
(UNU-IAS, IDDRI, CPDR) and Chatham House
IUCN side-events
Monday, 20 March,
13h15-15h00: THE ABS PROJECT -- PROMOTING EQUITABLE, EFFICIENT AND ENFORCEABLE
IMPLEMENTATION OF THE ABS REGIME. Organised by the IUCN Environmental
Law Centre.
Monday, 20 March,
18h30-20h15: UPDATE ON HIGH SEAS AND DEEP SEABED ISSUES. Organised by
IUCN.
Monday, 20 March,
18h30-20h: TRANSBOUNDARY PROTECTED AREAS & THE CBD PROGRAMME OF WORK
ON PROTECTED AREAS. LAUNCH OF 2006 WORLD DATABASE ON PROTECTED AREAS.
Organised by IUCN.
Tuesday, 21 March,
13h15-15h00: UPDATE ON HIGH SEAS AND DEEP SEABED ISSUES. Organised by
IUCN.
Wednesday, 22 March,
18h30-20h15: PRESENTATION OF AN UPCOMING 2006 EUROPEAN CONFERENCE ON INTEGRATING
BIODIVERSITY INTO DEVELOPMENT COOPERATION. Organised by the IUCN Regional
Office For Europe.
Monday, 27 March,
13h15-15h00: MEASURING PROGRESS TOWARDS THE 2010 TARGET. Organised by
IUCN
Wednesday, 29 March,
13h15-15h00: CUSTOMARY LAW, TRADITIONAL KNOWLEDGE AND THE INTERNATIONAL
REGIME ON ABS. Organised by IUCN.
Wednesday, 29 March,
13h15-15h00: GUIDELINES FOR IUCN ENGAGEMENT WITH THE PRIVATE SECTOR. Organised
by IUCN.
Other trade-related
side-events
For a complete list
of COP-8 side-events, visit http://www.biodiv.org/register/side-events/list.aspx?mtg=COP-08
Monday, 20 March,
18h30-20h15: EARLY LESSONS LEARNT FROM THE ACCESS AND BENEFIT SHARING
MANAGEMENT TOOL, DEVELOPED BY IISD AND SECRÉTARIAT D'ETAT À
L'ÉCONOMIE, SUISSE (SECO). Organised by the International Institute
for Sustainable Development.
Monday, 20 March,
18h30-20h15: ABS AND TK: USING CUSTOMARY LAW TO DEVELOP PRACTICAL MECHANISMS
FOR EQUITABLE BENEFIT-SHARING. Organised by the International Institute
For Environment And Development, Asosiacion Andes and the Foundation For
International Environmental Law And Development.
Tuesday, 21 March,
13h15-15h00: TERMINATOR TECHNOLOGY - POTENTIAL IMPACTS OF GENETIC USE
RESTRICTION TECHNOLOGIES (GURTS). Organised by the Ban Terminator Campaign.
Tuesday, 21 March,
13h15-15h00: THE ROLE OF BIODIVERSITY OFFSETS IN CONSERVATION: AN OPEN
ROUNDTABLE DISCUSSION. Organised by Forest Trends.
Tuesday, 21 March,
18h30-20h15: REPORT BY WIPO ON RECENT PROGRESS OF ONGOING WORK ON IP,
GENETIC RESOURCES AND TRADITIONAL KNOWLEDGE. Organised by the World Intellectual
Property Organization.
Tuesday, 21 March,
18h30-20h15: ACCESS AND BENEFIT SHARING AND FREE PRIOR INFORMED CONSENT.
Organised by the International Alliance of Indigenous and Tribal Peoples
of the Tropical Forests.
Wednesday, 22 March,
13h15-15h00: BIOTRADE: INCENTIVES FOR BIODIVERSITY BUSINESS. Organised
by the UNCTAD Biotrade Initiative.
Thursday, 23 March,
13h15-15h00: RIGHTS TO TRADITIONAL KNOWLEDGE AND PLANT GENETIC RESOURCES
FOR FOOD AND AGRICULTURE IN THE FRAMEWORK OF THE WORLD TRADE ORDER. A
LEGAL, ECONOMIC AND SCIENTIFIC ANALYSIS. Organised by the Swiss Agency
For Development And Cooperation/ University Of Berne, World Trade Institute.
Thursday, 30 March,
13h15-15h00: WORK IN THE WTO ON THE RELATIONSHIP BETWEEN THE TRIPS AGREEMENT
AND THE CBD. Organised by the World Trade Organization.
COP-8
RESOURCES
Daily
coverage of COP-8
EARTH
NEGOTIATIONS BULLETIN for web coverage, daily and summary reports and
for reports on side events: http://www.iisd.ca/2002/wssd/
EARTHWIRE/WSSD:
http://www.earthwire.org/wssd
British
Council instant news and comments from the World Summit: http://www.dailysummit.net/
EARTH
TIMES daily web coverage: Internet: http://www.earthtimes.org/
VIRTUAL
EXHIBIT for live video webcasts from WSSD: http://www.virtualexhibit.net
COP-8
Resources On Trade And SD
ICTSD
documents on trade and sustainable development are available at http://www.ictsd.org/pubs/,
including past issues of the monthly review BRIDGES Between Trade and
Sustainable Development (English, German, French and Spanish), which provides
regular updates and analysis of current developments in trade and sustainable
development. For a collection of resources on trade, biodiversity and
sustainable development, visit http://www.trade-environment.org
IUCN
POSITION PAPERS FOR CBD COP-8. By IUCN - The World Conservation Union,
February 2006. These short IUCN position papers explore topics including
biological diversity of dry and sub-humid lands; access and benefit-sharing;
Article 8(j); the Global Initiative on communication, education and public
awareness; the Millennium Ecosystem Assessment; Indicators; forest biological
diversity; marine biodiversity conservation; and protected areas.
Electronic
Resources
Official
COP-8 website: http://www.biodiv.org/meetings/cop8mop3/cop-08.shtml
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