Published by the
International Institute for Sustainable Development (IISD)
Vol. 09 No. 266
Thursday, 4 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
WEDNESDAY, 3 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) held regional consultations in the morning. Sub-Working Group
I (SWG-I) met in the afternoon to consider a Chair’s text on the
international regime on access and benefit-sharing (ABS).
Sub-Working Group II (SWG-II) met in afternoon and evening sessions
to address a Chair’s text on compliance measures for prior
informed consent (PIC) and mutually agreed terms (MAT). A brief
Plenary met in late afternoon to review progress.
REGIME ON ABS: SWG-I
Chair Ines Verleye (Belgium) invited comments on the Chair’s text
on an international ABS regime. Delegates debated whether the text
should compile views or propose draft recommendations. BRAZIL,
COLOMBIA, MEXICO and UGANDA supported drafting recommendations,
while Italy, on behalf of the EC Member States and acceding
countries (EU) and others proposed submitting views for preparation
of a text to be negotiated at COP-7. Chair Verleye clarified that
the Working Group was mandated to draft recommendations on terms of
reference for negotiating a regime.
Mexico, on behalf of
the LIKE-MINDED MEGADIVERSE COUNTRIES (LMMC) stressed the need to
guarantee protection of their peoples’ rights. CUBA requested
referring to the Bonn Guidelines as a reference point for
negotiating the regime, and acknowledging difficulties in their
implementation. JAMAICA called for reflecting concerns over the ABS
Working Group’s mandate and for not prejudging the regime’s
nature. URUGUAY requested better acknowledging the usefulness of the
International Treaty on Plant Genetic Resources for Food and
Agriculture. The US called for consistency with CBD language. Noting
the potential for coercion when seeking consent, the INTERNATIONAL
INDIGENOUS FORUM ON BIODIVERSITY (IIFB) called for emphasizing that
PIC be free. AUSTRALIA proposed highlighting that identifying the
components of the terms of reference does not relate to their
merits. The LMMC, opposed by CANADA, CUBA and others, asked for
deleting preambular paragraphs: recognizing that Parties and
stakeholders may be both users and providers; recognizing the need
for balance between user and provider responsibilities; and noting a
need for further analysis of existing instruments and regimes.
BURKINA FASO called for establishing an expert group to develop a
text to be negotiated by the ABS Working Group.
reference to the 2010 target to significantly reduce the rate of
biodiversity loss. The EUROPEAN COMMUNITY (EC) and the LMMC
proposed reference to the CBD objectives. The EU suggested
preambular reference to the Millennium Development Goals and, with
AUSTRALIA, JAMAICA and NORWAY, added language on the process for
establishing the regime. CANADA, supported by SWITZERLAND, proposed
inserting a chapeau referring to the CBD framework, the Bonn
Guidelines and recommendations from the Working Group on Article
8(j), and the possible need for further analysis and strengthening
of elements of relevant existing regimes. The IIFB asked for
collaboration with the Working Group on Article 8(j).
The LMMC proposed
that the COP request the Executive Secretary to make necessary
arrangements for the ABS Working Group to convene twice a year.
Noting budgetary constraints, the EC asked that the ABS Working
Group be requested to meet “as soon as practicable.”
called for emphasizing the inclusive nature of the regime, beyond
national and regional perspectives. HAITI stressed the need to
clarify whether the regime would build on , or be composed of,
existing ABS-related instruments. The LMMC requested recommending
COP-7 to establish a specific working group to negotiate a legally
binding regime, taking into account the rights of the countries of
merging the items on nature and scope. The EC proposed including
reference to sets of norms, rules and decision-making procedures in
text noting that the regime be composed of one or more instruments.
EU, supported by NAMIBIA, requested using CBD Article 15.7
language (benefit-sharing) in text on facilitating research.
TANZANIA stressed that research should be collaborative. The LMMC
and NORWAY requested removing reference to genetic resources’
products, with NORWAY also opposing reference to derivatives.
CANADA and NORWAY proposed using wording from the Bonn Guidelines.
JAPAN suggested that facilitation of research should be
non-discriminatory. The EC, supported by EL SALVADOR, proposed
clarifying that the regime should cover both access and
benefit-sharing, and requested adding reference to the
conservation and sustainable use of biodiversity in text on
promoting and safeguarding fair and equitable benefit-sharing.
and JAPAN called for both provider and user measures. UGANDA sought
clarification on language on promotion of user measures. The LMMC
opposed references to: existing instruments; countries of origin,
provider countries and indigenous and local communities, in text on
provisions to ensure compliance; and, with ALGERIA, a code of
ethics. The LMMC also supported referring to an international
certificate of legal provenance of genetic resources, derivatives
and associated traditional knowledge, for bioprospecting in a
country of origin. JAMAICA favored an international certificate of
country of origin or country providing genetic resources. BRAZIL and
COLOMBIA stressed the need for cooperation with the Working Group on
Article 8(j). The EC asked that any inclusion of elements be made on
the basis of a gap-analysis. CUBA proposed addressing genetic
resources not subject to national sovereignty. TANZANIA and NAMIBIA
proposed noting the transboundary distribution of some genetic
resources. The REPUBLIC OF KOREA suggested reference to arbitration
mechanisms rather than dispute settlement. ARGENTINA requested
specific reference to relevant agreements of the World Trade
proposed that the COP review the regime’s implementation and legal
status five years after its entry into force.
Chair Verleye said
she would prepare a revised text.
MEASURES WITH PIC AND MAT: SWG-II
Chair Desh Deepak Verma (India) presented a Chair’s text on
measures to ensure compliance with PIC and MAT.
BURKINA FASO and
BRAZIL stressed that language referring to the international ABS
regime should be coherent with language agreed upon in SWG-I.
by BRAZIL, said compliance measures should address not only PIC and
MAT, but also national legislation. COLOMBIA proposed referring to
monitoring activities and access to justice in case of breach of
legislation in user countries. The EU stressed ensuring consistency
with CBD language, proposed recognizing written or oral traditional
knowledge as prior art in patent law, and recommended requesting
the Executive Secretary to undertake further analysis of existing
practices and trends regarding commercial and other utilization of
genetic resources and the benefit generation.
On a certificate of
legal origin, MEXICO and BRAZIL supported an international
certificate of legal provenance, noting that it differs from a
certificate of legal origin. The EU proposed to retain the terms
“disclosure of origin/source/legal provenance,” to allow for
consistency with language to be agreed upon in SWG-I.
While COLOMBIA and
BRAZIL stressed the need to refer to the PIC of the country of
origin, rather than of the provider Party, the EU drew attention to
CBD Article 2 (Use of Terms) referring to Parties providing genetic
resources. Chair Verma said the CBD definition covers countries of
origin. References remain bracketed.
incentive measures to encourage users to comply with PIC and MAT,
BRAZIL suggested referring to certification schemes, and the EU
insisted that certification schemes be volunï¿½tary. On other
compliance measures, BRAZIL and CANADA opposed language on the
development of contractual agreements. The EU, opposed by JORDAN,
suggested that contractual agreeï¿½ments apply to different user
groups and different genetic resources.
debated language on recognizing written or oral traditional
knowledge as prior art, without reaching agreement. BRAZIL supported
the reference, while AUSTRALIA, CANADA, SWITZERLAND and JAPAN
opposed it, noting that the issue does not relate to compliance with
PIC. WIPO suggested that disclosed traditional knowledge be
recognized as prior art, while COLOMBIA stressed the role of secret
debated language inviting Parties to facilitate PIC of indigenous
and local communities, with CANADA supporting PIC required by
national legislation. The IIFB recalled that COP deciï¿½sion V/16
requires Parties to guarantee local and indigenous communitiesï¿½
rights over their traditional knowledge and establish national
mechanisms in accordance with customary law.
suggested that the ABS Working Group take into account discussions
in relevant fora when considering issues relating to disclosure of
country of origin. Language requesting the ABS Working Group to
consider issues relating to disclosure of origin in IPR applications
proposed, and delegates agreed, to include language on measures
which preserve and promote legal certainty for users regarding
consideration of the Chairï¿½s text on an international regime got
off to a promising start, debate stalled over procedural issues. A
developing country delegate remarked that delaying negotiations to
COP-7 regarding the terms of reference for the regime would be
detrimental to small delegations in Kuala Lumpur, considering the
number of crucial items on the COPï¿½s agenda. This also prompted
one delegate to question Partiesï¿½ willingness to make progress on
the issue. Many participants expect heavy sailing prior to reaching
agreement on even bracketed recommendations, pointing at such thorny
issues as the modalities to develop the regime, and balance between
access and benefit-sharing.
debate on the international ABS regime clearly overshadï¿½owed
SWG-IIï¿½s laborious discussions on compliance measures for PIC and
MAT. Despite isolated efforts to convince delegates that progress on
these issues would assist in resolving urgent problems related to
implementation of ABS arrangements, discussions on the Chairï¿½s
text dragged into the night, with some grumbling that progress was
being hindered by endless seesawing over minor modifications.
THINGS TO LOOK FOR TODAY
GROUP I: SWG-I
will convene at 10:00 am in Room I to consider a revised Chairï¿½s
text on the international ABS regime, and Chairï¿½s texts on
reports, use of terms, and other approaches for implementing ABS
GROUP II: SWG-II
will meet at 10:00 am in Room II to consider a Chairï¿½s text on
capacity building for ABS and a revised text on compliance measures
for PIC and MAT.
will convene at 5:30 pm in Room I to review progress.