Biodiversity Meeting Delves Into Access and Benefit Sharing

14 July 2010

Parties to the Convention on Biological Diversity (CBD) are meeting in Montreal, Canada this week to resume talks on establishing an international regime on Access and Benefit Sharing (ABS) and to push to clinch a deal later this year. The meeting -the continuation of the ninth meeting of the Ad-Hoc Working Group - picked up where negotiations left off in Santiago de Cali, Colombia in March. The Working Group suspended talks on 28 March, with the understanding that the negotiations would resume at a later date.

The CBD's Tenth Conference of the Parties (COP 10) - set to take place from 18-29 October in Nagoya, Japan - is the targeted deadline for the ABS Working Group to agree upon the details of a protocol. And while the Montreal meeting is meant to establish a clean draft text before the COP, some countries doubt whether this is a feasible goal. While some officials from rich countries are confident that a protocol will be agreed upon at COP 10, developing country delegates say the odds of striking a new deal are closer to fifty-fifty.

Developing country officials are cautious in their approach to establishing an international regime on ABS for several reasons. First, they say they are frustrated by the limited benefits that their countries gain under the current ABS frameworks, complaining that the rich world is engaging in "biopiracy" - plundering their resources without sharing any of the loot. Second, developing countries that have been subjected to illegal access, misappropriation or biopiracy say they are at a disadvantage when it comes to challenging such cases through legal channels. Finally, developing countries say their interests are undermined by the dearth of national ABS regulations in the developed world, where most pharmaceutical, biotechnology, and agricultural companies have their headquarters.

While the establishment of a protocol in Nagoya would help address these concerns, it is not yet clear whether developing countries' concerns can been satisfied. A better picture will emerge following Montreal.

Text emerging bit by bit

The decision to establish an international regime on ABS emerged from the World Summit on Sustainable Development in Johannesburg, South Africa in 2002. Eight years later, however, consensus remains elusive.

The ABS negotiations are complicated by their interactions with an array of areas that are closely linked to the issue. One major sticking point centres on how the benefits of a patent can be shared within the country where the intellectual property used in the patent was sourced. Other hot topics include the relationship that a new protocol will have with other international agreements, including the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as well as the role of non-parties - especially the US, which has not ratified the CBD - and the details of disclosure requirements.

At COP 8 - which took place in March 2006 in Curitiba, Brazil - the ABS working group was asked to complete its work by 2010. The working group has met several times since then in places like Geneva, Bonn, Paris, and Montreal. Much progress was made at the eighth Working Group meeting in Montreal (9-15 November 2009), but the heavily bracketed text was kicked down the road to the Group's next meeting in Santiago de Cali, which took place from 16-18 March 2010.

A draft protocol was tabled at the Cali meeting by the co-chairs and was subsequently accepted by parties as a basis for further negotiations. However, because the draft was not finalised by the end of the seven-day meeting, the Working Group suspended talks. Key trade issues incorporated into the Cali text include disclosure requirements in IPR applications, the certificate of compliance, technology transfer, and the protection of traditional knowledge associated with genetic resources.

Since March, the Cali text has been discussed at meetings in Nairobi, Kenya and Busan, South Korea. While any post-Cali changes to the text have not been made public, one delegate said recently that issues on financing and strategic planning have been consolidated. Delegates are aiming to tackle all outstanding issues in Montreal to be able to arrive in Nagoya with a clean text. A G27 delegate says all countries appear to be ready to meaningfully engage in in-depth negotiations to make this possible, even if sessions spill over into the night.

What to expect in Montreal

Some 12-15 delegations are expected to take the lead on the text-based negotiations this week. The European Commission (EC) and Canada have been playing an important role in the negotiations since Cali, but insiders say Canada has been less engaged recently. Also, the EC appears to be rattled somewhat by various changes implemented by the Lisbon Treaty and tensions have reportedly emerged over whether a member country or the Commission itself should lead the negotiations.

Recent ABS negotiations have seen high-level officials taking a less active role. In the past, environment ministers were involved in technical negotiations early in the process. But while ministers are currently engaged in the ABS talks on a national level, the next formal ministerial-level meeting is not scheduled until the second week of COP-10.

Looking beyond Nagoya, several delegates have said that regardless of whether the Working Group is able to establish a new protocol, the true proof of success will be whether an agreement can be effectively implemented.

In the absence of a protocol, free trade agreements will continue to be of highest importance for the management of ABS. Some analysts speculate that the bottom-up approach of FTAs may, in reality, be more effective than a top-down international protocol.

ICTSD reporting.

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