Published by the
International Institute for Sustainable Development (IISD)
Vol. 09 No. 264
Tuesday, 2 December 2003
SECOND MEETING OF THE AD HOC OPEN-ENDED
WORKING GROUP ON ACCESS AND BENEFIT-SHARING:
1-5 DECEMBER 2003
ABS WG-2 HIGHLIGHTS
MONDAY, 1 DECEMBER 2003
Delegates to the
second meeting of the Ad Hoc Open-ended Working Group on
Access and Benefit-sharing of the Convention on Biological Diversity
(CBD) met in Plenary throughout the day to hear opening statements,
address organizational matters, consider reports on experience in
using the Bonn Guidelines on Access and Benefit-sharing (ABS), and
hear views on an international regime on ABS.
STATEMENTS: Hans Hoogeveen (the Netherlands), President of the
CBD Conference of the Parties (COP) and Working Group Chair, opened
the meeting, stressing that the success of COP-7 depends on the
Working Group’s discussions. He highlighted the need to identify
clear terms of reference for negotiating an international regime on
ABS, and called upon delegates to build on the spirit of
compromise that led to the adoption of the Bonn Guidelines.
Secretary Hamdallah Zedan noted that ABS is of particular
significance to developing countries, and emphasized links with
traditional knowledge, intellectual property rights (IPRs) and
Nehemiah Rotich, on
behalf of UNEP Executive Director Klaus Töpfer, stressed the need
for benefit-sharing for biodiversity conservation in developing
countries, and encouraged delegates to initiate actions for capacity
building for ABS.
MATTERS: Delegates adopted the agenda (UNEP/CBD/WG-ABS/2/1) and
agreed to establish two sub-working groups as proposed in the
annotated agenda (UNEP/ CBD/WG-ABS/2/1/Add.1/Rev.1). Delegates also
agreed to convene a brief daily Plenary to review progress, and to
establish a Friends of the Chair group to prepare discussions on an
international regime on ABS. They elected Ines Verleye (Belgium)
as Chair of Sub-Working Group I (SWG-I) and Desh Deepak Verma
(India) as Chair of Sub-Working Group II (SWG-II).
INTERNATIONAL ORGANIZATIONS: The World Intellectual Property
Organization (WIPO) highlighted its technical study on disclosure
requirements (UNEP/ CBD/WG-ABS/2/INF/4), stressing that it does not
represent WIPO official policy. He drew attention to the expanded
mandate of the Intergovernmental Committee on Intellectual Property
and Genetic Resources, Traditional Knowledge and Folklore, which
should focus on international aspects and not exclude the development
of an international regime.
The UN Food and
Agriculture Organization (FAO) highlighted the adoption and key
features of the International Treaty on Plant Genetic Resources for
Food and Agriculture (ITPGR), expressing hope that the ITPGR will
enter into force in the first half of 2004.
experience gained in using the Bonn Guidelines, CHINA noted its
success in exchanging agricultural crop genetic material based on
prior informed consent (PIC). With KENYA and JORDAN, he emphasized
capacity building as a prerequisite for developing and implementing
legislation, and with ARGENTINA, he stressed challenges faced by
countries that are both providers and users of genetic resources.
BRAZIL noted that the Guidelines do not secure the rights of
provider countries and indigenous communities.
its bioindustry’s capacity-building programmes in developing
countries and its workshops to promote the Guidelines’
implementation. SWITZERLAND and CANADA noted national workshops for
stakeholders. Noting activities of its national expert group
to monitor the Guidelines’ implementation, NORWAY described
efforts to update its ABS legislation and amend its patent law to
COMMUNITY (EC) drew attention to its biodiversity strategy and an
upcoming communication on the implementation of the Guidelines, and
noted industry’s lack of awareness. FRANCE described studies on
the state of its ABS legislation and measures for PIC and mutually
agreed terms (MAT), and highlighted information-sharing initiatives
through the French Biodiversity Clearing-House.
announced the establishment of national measures for access, and
underscored regional harmonization efforts. BANGLADESH and COSTA
RICA noted use of the Guidelines in developing national biodiversity
legislation, and JAMAICA highlighted their use in establishing a
register of material transfer agreements (MTAs). COSTA RICA
underlined experiences from benefit-sharing in bioprospecting.
EGYPT underscored amendment of its IPR legislation, with inclusion
of PIC and requirements on disclosure of origin. PAKISTAN, UGANDA
and ETHIOPIA described the development of draft national legislation
on ABS, with PAKISTAN noting measures on community rights. NAMIBIA
stressed the need to increase awareness and mainstream the
Guidelines within national legislation. JORDAN said political unrest
hampers regional cooperation.
its internal agreement which, inter alia, determines
the scope and modality of actions to apply the Guidelines. BELGIUM
shared its experience with ABS relating to microbial resources. The
NETHERLANDS described the establishment of a national platform for
codes of conduct, MTAs and information exchange. DENMARK highlighted
an amendment to its patent law requiring the disclosure of origin.
SWEDEN reported a lack of awareness of the Guidelines among its
The UK stressed its
undertaking of a two-stage review of the Guidelines, development of
a policy framework, and establishment of a Commission on IPRs. He
called for considering all aspects of ABS, not only the
Guidelines’ implementation. CANADA emphasized the need for
further research, and said ABS regimes should, inter alia,
address stakeholders’ interests and indigenous participation.
UGANDA identified challenges, including lack of capacity,
negotiating different types of benefits, and addressing non-compliance.
SPAIN highlighted its inter-ministerial coordination committee to
address ABS and develop a draft MTA. HAITI stressed the need for: a
coherent national ABS policy; work on IPRs; and legal clarification
of the ABS-related concepts.
The SOUTHEAST ASIA
REGIONAL INSTITUTE FOR COMMUNITY EDUCATION (SEARICE) stressed the
usefulness of the Bonn Guidelines in establishing the Framework on
ABS of the Association of South East Asian Nations, and called upon
delegates to recognize indigenous rights in developing legislation
and managing ABS initiatives.
REGIME ON ABS: Chair Hoogeveen emphasized that the mandate for
an international ABS regime has already been decided upon by the
World Summit on Sustainable Development (WSSD) and endorsed by the
UN General Assembly.
Mexico, on behalf of
the LIKE-MINDED MEGADIVERSE COUNTRIES, underlined that the regime
should promote compliance with PIC according to MAT, address
certification of the origin of genetic resources, and balance the
regulatory burden on user and provider countries. COLOMBIA suggested
recommending that COP-7 recognize that beginning negotiations on the
regime is crucial for the future of the CBD. ARGENTINA, BRAZIL,
COSTA RICA and TANZANIA stressed the need to include provisions on
monitoring, compliance, dispute settlement, and capacity building,
and to protect local and indigenous communities’ rights. TANZANIA,
supported by many, further emphasized the need to guarantee the
rights of the countries of origin and reinforce, rather than
substitute, their legislation, and address certification of origin
and capacity building through a country-driven approach.
highlighted the links between ABS and biosafety issues, stressing
that discussions on genetic resources should also address
conservation. Several countries emphasized the need for technical
and financial support to develop and implement national
legislation. JAMAICA noted difficulties in monitoring and
enforcing contract-based regimes. CANADA and others called for
indigenous and local communities’ involvement. JAPAN warned
against excessive ABS regulation, and called for developing a
common understanding regarding the current situation between
providers and users, as a first step.
Many said the regime
should be legally binding, with COLOMBIA and NAMIBIA noting that
national legislation is not sufficient to ensure compliance with
ABS. Uganda, on behalf of the AFRICAN GROUP, stressed the need for a
dispute settlement mechanism and, with JORDAN, for taking into
account the special needs of developing countries. MALAYSIA said the
regime should address illegal transboundary movements of genetic
resources. ALGERIA supported including products derived from genetic
resources, and JAMAICA suggested that the regime address
governmentsï¿½ role and scientific research. MALAYSIA supported
including a compliance mechanism, and EGYPT highlighted existing
multilateral dispute mechanisms. JORDAN supported arbitration
mechanisms between users and providers. HAITI said a regime should
address capacity building, and go beyond existing technology
Italy, on behalf of
the EC Member States and acceding counï¿½tries, said the analysis of
the effectiveness of, and synergies among, existing instruments
should be considered. AUSTRALIA and SWITZERLAND recalled that the
regime should build on ongoing work within WIPO, the Agreement on
Trade-Related Aspects of Intellectual Property Rights and the ITPGR,
rather than establish a new treaty, with AUSTRALIA noting the lack
of measures to encourage commitment from industry. CANADA, NEW
ZEALAND and the REPUBLIC OF KOREA supported impleï¿½menting the Bonn
Guidelines and sharing experience before negoï¿½tiating a binding
that COP-7 extend the mandate of the Working Group to identify and
analyze gaps in the implementation of the Guidelines. ALGERIA said
COP-7 should establish a working group to negotiate the regime, and
MALAYSIA and BANGLADESH supported mandating an intergovernmental
negotiating committee. Noting the Biosafety Protocol experience,
EGYPT supported the negotiation of a protocol on ABS.
indigenous consultation at all levels, the INTERï¿½NATIONAL
INDIGENOUS FORUM ON BIODIVERSITY stressed: indigenous rights over
their knowledge; links between indigenous knowledge and
biodiversity; indigenous customary laws and cultural heritage; and
equity in benefit-sharing.
CHAMBER OF COMMERCE cautioned against an international regime that
would discourage countries from developing national legal
frameworks, and recomï¿½mended that countries be given more time to
implement the Guideï¿½lines.
SEARICE noted a lack
of monitoring and the need for considï¿½ering human genetic resources
in ABS. THE EDMONDS INSTIï¿½TUTE said ABS discussions should be
understood in the context of biodiversity conservation. INSTITUTO
SOCIOAMBIENTAL supported the development of a code of ethics to give
legitimacy to PIC. The UN UNIVERSITY noted its work on user measures
and ABS governance.
Chair Hoogeveen said
he would prepare a Chairï¿½s text for further discussion in SWG-I.
Encouraged by the
momentum gathered at COP-6 and the WSSD, the Working Group
kick-started its discussions in a posiï¿½tive spirit. Chair Hoogeveen
set the tone in reminding delegates that renegotiating the WSSD call
for an international regime was off the table. While some delegates
from developing countries were keen on tackling the regime as soon
as possible, rather than dwelling on domestic experience with the
Bonn Guidelines, many were quick to stress that embarking on
negotiations for a binding instrument would distract from, if not
run counter to, what is really needed, namely the implementation of
the Guidelines. In any event, several delegates noted that
discussions on the disclosure of origin and the role of IPRs may
attract most of the attention during the week.
THINGS TO LOOK FOR TODAY
I: SWG-I will convene at 10:00 am in Room I to discuss the use
of terms. Look for a Chairï¿½s text on the ABS regime.
II: SWG-II will meet at 10:00 am in Room II to discuss measures
to ensure compliance with PIC and MAT.
will convene at 5:30 pm in Room I to review progress.