Pessimism Prevails as CBD COP Resumes in Nagoya

25 October 2010

Despite several days of protracted negotiations, a pessimistic tone has emerged in Nagoya, Japan where government negotiators are meeting at the Convention on Biological Diversity's Tenth Conference of the Parties (CBD COP 10). Entrenched positions and generally slow progress in negotiations - particularly on the issue of Access and Benefit Sharing (ABS) - have had many observers suggesting that clinching a deal in Nagoya is now unlikely.

The establishment of an ABS protocol is an important goal for this year's Conference of the Parties, the CBD's tenth. The prospective international protocol would set the terms for commercial access to genetic resources and traditional knowledge, and the sharing of benefits arising from products incorporating those resources or knowledge with the communities in which they originate. The issue is closely watched by the environment and trade community, which views an agreement on ABS as crucial for creating incentives for biodiversity protection, as well as for fighting biopiracy.

Many commercial pharmaceuticals, cosmetics, and biochemicals have been derived from plants and animals found in nature. And because the most biodiverse countries in the world are in poorer regions, while the users of genetic resources are typically located in the developed world, ABS has long been an important priority on the agenda of developing countries. But while all parties involved in the negotiations generally agree that countries and communities should be fairly compensated by industry, consensus on the details has eluded negotiators for more than six years.

Formerly agreed text re-opened

ABS Co-Chairs Timothy Hodges and Fernando Casas have been pushing negotiators to overcome differences and remove brackets from the protocol draft text during two recent negotiating sessions in Montreal, Canada and a pre-COP 10 meeting in Nagoya from 13-16 October (see Bridges Trade BioRes, 24 September 2010, 23 July 2010, and 9 July 2010). But while most early reports from Nagoya suggested that an escalated pace of negotiations had yielded some success, most articles remain unresolved. Many of these articles are pending only one or two issues, but these relate to difficult language on sensitive issues.

At a plenary last Friday, Hodges and Casas called on members to be better prepared to move to the centre and to ensure they had revised instructions from capitals that would allow them to better achieve compromise on key issues. The Co-Chairs were reacting to the fact that in late hour sessions on 20 October some parties began revising text that had already had brackets removed and was considered "clean."

At the plenary, NGO representatives remarked that the situation emerging in Nagoya was reminiscent of last December's meeting of the UN Framework Convention on Climate Change in Copenhagen, Denmark. The UNFCCC COP was notable for the inability of developed and developing countries to find compromise and the hesitancy of parties to agree to legally binding commitments.

Outstanding issues

Developed-developing country conflicts in the ABS negotiations generally revolve around political differences and the highly technical and complex nature of the topic. This latter issue became apparent during the Montreal talks when negotiators had difficulty agreeing on the meaning of the terms "genetic resource," "derivates," and "utilisation of genetic recourses." Other outstanding issues include clarifying the scope of the protocol, the inclusion of associated traditional knowledge, and enforcement (which is addressed in a number of provisions on monitoring and tracking and on compliance).

Traditional knowledge, derivatives, compliance, financing, and temporal scope - the duration for which the protocol will be retroactive, once it enters into force - continue to be sticking points in the negotiations. Traditional knowledge was addressed last week by both ABS negotiators and CBD Working Group looking at CBD Article 8(j) - which covers traditional knowledge, innovations, and practices - on Thursday. However, progress was reportedly stalled by the European Commission and Canada.

Small groups addressed compliance, primarily the appropriate role of patent offices - or similar national institutions - last week and reportedly made surprising progress. Another small group working on the relationship between the protocol and other international agreements introduced text referring to the provision of affordable treatment to those in need, with an emphasis on developing countries. The text is notable because it differs from the WTO's Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), and appears to offer possible compromise on the issue.

But progress in specific areas has failed to lead to an overall sense of optimism at the COP. As Brazil pointed out at a press conference last Thursday, agreement in certain areas means little while there is disagreement elsewhere. "It is a package," the Brazilian representative said. "We are not bluffing. We are very clear on this."

All eyes on ministers

ABS negotiations were scheduled to be completed by the end of last week. However, negotiators requested an extension. Casas said this request is a positive sign that pointed to a format that is working. "Openness, transparency and good will have characterized the talks," the Co-Chair said.

But despite his positive tone, Casas cautioned delegates that much work needs to be done to finalise a deal. "Significant positions have been agreed on," Casas said at Friday's plenary. "Yet we must observe the well known principle that ‘nothing is agreed until everything is agreed'."

The group plans to finalise work by Thursday at the latest.

On Wednesday, 110 ministers or representatives will arrive in Nagoya for the high-level portion of the meeting. There will be one high-level segment specific to ABS that will take place in parallel to the general meeting. It remains unclear whether negotiators will be able to overcome their differences to finalise a text.

More information

For detailed legal analysis on the ABS negotiations, view the special Nagoya issue of Bridges Trade BioRes Review.

ICTSD Reporting.

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