ABS Text Advances in Montreal but Much Work Remains

21 July 2010

Bleary-eyed delegates made their way home from Montreal, Canada over the weekend after a week of late-night negotiating sessions on access and benefit sharing. The goal of this meeting of the parties to the Convention on Biological Diversity (CBD) was to establish a reasonably clean text that could serve as the basis for an international protocol on access and benefit sharing. While negotiators were ultimately unable to reach this goal, most delegates agreed that the Montreal meeting was a valuable exercise that moved the ABS talks in the right direction.

Developed and developing countries continue to disagree on appropriate phrasing as well as on what to include and what to exclude in an international regime to promote access to - and the sharing of - the planet's vast genetic resources. Still, a heavily bracketed draft protocol was adopted on the last day of the meeting with a general agreement that parties should meet again before the Tenth Conference of the Parties (COP 10) gets underway in October in Nagoya, Japan.

At the close of the meeting, the CBD issued an optimistic press release insisting that an agreement will be reached at COP 10 and praising delegates' work to move the issues forward.

"History will recall that the Aichi Nagoya Protocol on Access and Benefit-Sharing was born here in Montreal," said Ahmed Djoghlaf, the CBD's Executive Secretary in the press release. "Once again, the Montreal magic has worked for delivering one of the most important legal instruments in the history of the environment movement."

But even the most optimistic observers at the Montreal meeting acknowledged the challenges of  bridging the gaps on the toughest issues in time for Nagoya.

Talks zero-in on details for first time

Early in the week, delegates made steady progress as they worked line-by-line through the draft protocol, which was proposed at a CBD meeting in March by co-chairs Timothy Hodges of Canada and Fernando Casas of Colombia. However, progress slowed by mid-week as parties realised that some basic concepts - such as a definition of the term "utilisation of genetic resources" - had not been adequately addressed. Many suggested the talks may have gotten ahead of themselves. Still, delegates persisted through a second reading as difficult issues were addressed in small groups.

This is the first time ABS talks have reached this level of negotiation on specific issues and several sources from both developed and developing countries told Bridges Trade BioRes that they were impressed by the progress and parties' willingness to compromise. One developed country representative said that, going in, the goal of hammering out a fairly clean draft text at the Montreal meeting seemed like an "impossible" task. But the progress made exceeded expectations, the representative said.

Hardest work still to come

Many delegates also acknowledged that the hardest work now lies ahead, as the most sensitive questions still need to be addressed. In Montreal, several of these issues were discussed in informal groups in parallel to the main negotiations, but despite much open and frank discussion, many issues were ultimately deferred to a later date.

Key issues standing in the way of consensus include how the proposed ABS regime will interact with other relevant international instruments; the incorporation of "derivatives" - products derived or synthesised from genetic resources - into a benefit-sharing formula; the role of patent offices; and whether - or to what extent - the terms of the proposed protocol would be retroactive.

A new protocol on ABS will have to grapple with several cross-cutting issues that have already been addressed in other contexts. But substantive progress was made to address both "provider" and "user" countries' concerns as delegates arrived at a general understanding that the ABS protocol will be recognised as an "umbrella regime" for all genetic resources.

However, the appropriate regulating body for some other related issues remains unclear. For example, access to pathogens has been a sticking point between developed and developing countries since April 2009. Developed countries argue that, as a human-health related issue, pathogens should fall under the domain of the World Health Organization. However, developing countries say that doing so would exclude this highly profitable pharmaceutical sector from the agreement.

Intellectual property issues unresolved

A similarly tricky issue is traditional knowledge. Developing countries were resolute on the wording of traditional knowledge in the draft text, insisting that the phrase "inseparability of traditional knowledge and genetic resources" be included. Other countries - notably the EU and Canada - pushed delegates to consider shifting the responsibility for traditional knowledge to the World Intellectual Property Organization (WIPO), rather than the CBD. Because WIPO's Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC) already discusses intellectual property issues related to access to genetic resources and benefit-sharing, protection of traditional knowledge, and the protection of expressions of folklore, these countries say it is better equipped to deal with the issue.

Several developing countries, however, have been sceptical of the organisation, arguing that it acts more in the interest of patent holders - particularly in the US, EU, and Japan - than resource providers. Developing countries say that the CBD would offer a more effective instrument for handling misappropriation of traditional knowledge related to genetic resources. They further argue that moving the issue to WIPO could water down protection if the lines between traditional knowledge related to genetic resources and other forms of traditional knowledge are blurred.

The talks might also trip up over the question of how patent offices should be involved in monitoring and tracking the use of genetic resources. Provider countries say that in order to ensure monitoring is effective, patent offices should handle disclosure requirements, certificates, and checkpoints. On the other hand, developed countries say the additional costs, time, and possible confidentiality infringements could be an unmanageable burden for patent offices. In addition to these issues related to monitoring, the spectre of enforcement seemed to hover over the discussions. Several delegates reiterated the point that unless an effective enforcement mechanism accompanies the text, the protocol will be largely ineffectual.

Despite the outstanding issues holding up negotiations, parties from both sides have said that, while falling somewhat short, the Montreal meeting provided the stimulus necessary to move on to the next step in the process. But while all parties agree that another meeting is needed to bring a reasonably clean text to COP 10, it was acknowledged that such a meeting would only be useful if enough money was available to allow every delegation and a fair amount of civil society to participate. As of yet, no government has come forward with an official offer to host or fund such a meeting. However, Japan - which sponsored the Montreal meeting - has said it would consider the idea, and Bangkok, Thailand has been floated as a possible venue. Several members have said they are optimistic that Tokyo and Bangkok will confirm their support soon. An announcement on this is expected before the end of July.

Regarding the format for the proposed pre-Nagoya meeting, delegates said the interregional format used in Cali was both time efficient and successful. But developing countries urged potential organisers to consider including a daily afternoon plenary.

More information

The CBD's 16 July press release can be accessed here.

Comprehensive daily reporting by Earth Negotiations Bulletin on the details of the negotiations can be accessed here.

The BioRes curtain raiser for the Montreal meeting can be accessed here.

ICTSD reporting.

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