[A2k] Biopiracy meet ends with no progress

[Soenke Zehle]

From: bio-ipr@grain.org

BIO-IPR docserver | http://www.grain.org/bio-ipr
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TITLE: United Nations: Biopiracy meet ends with no progress
AUTHORS: Lim Li Lin and Chee Yoke Ling (Third World Network)
DATE: 16 October 2007
URL:
http://udongo.org/2007/10/18/united-nations-biopiracy-meet-ends-with-no-progress
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UNITED NATIONS: BIOPIRACY MEET ENDS WITH NO PROGRESS

Montreal, 16 Oct (Lim Li Lin and Chee Yoke Ling) -- The persistent
opposition of several developed countries to coming up with a clear
negotiating text for an international treaty against biopiracy resulted
in a disappointing ending to the 5th Meeting of the Open-Ended Ad Hoc
Working Group on Access and Benefit-Sharing (ABS), a subsidiary body of
the United Nations Convention on Biological Diversity (CBD).

After a week of talks that ended on 12 October in Montreal, the two
Co-Chairs of the Working Group, Fernando Casas from Colombia and Tim
Hodges from Canada, had produced two documents -- a paper containing
their reflections on areas of potential convergence, options, possible
tools and concepts for clarification, as well as a paper which contained
a compilation of key concrete proposals from the 17-member Like Minded
Mega-diverse Group (LMMC) and bullet points from other CBD Parties that
had been made over the course of the week.

The LMMC countries, all Parties to the CBD, are Bolivia, Brazil, China,
Colombia, Costa Rica, Democratic Republic of Congo, Ecuador, India,
Indonesia, Kenya, Madagascar, Malaysia, Mexico, Peru, Philippines, South
Africa, and Venezuela.

The LMMC, which holds the majority of the Earth's species, had submitted
text proposals reflecting their position on each of the substantive
issues for discussion. These issues were fair and equitable sharing of
benefits, access to genetic resources, compliance, traditional knowledge
and genetic resources, and capacity building. Under compliance, there
was examination of measures to support compliance with prior informed
consent and mutually agreed terms; an internationally recognized
certificate of origin/source/legal provenance; as well as monitoring,
enforcement and dispute settlement.

The Co-Chairs proposal that the next (6th) meeting of the Working Group
be regarded as an integral part of the Montreal meeting had been
accepted by all Parties and non-Parties. The 6th meeting will elaborate
and negotiate on compliance, traditional knowledge and genetic
resources, capacity building and the nature (legally binding or not),
scope and objectives of the international regime.

The initial proposal of the two Co-Chairs had been to annex their two
documents to the report of the meeting, which would be adopted on the
final day. This would then be passed on to the next negotiation session
next January as it will remain as the Co-Chair's text for the next
meeting. However, this was met with strong opposition from Australia,
Canada, New Zealand and Japan. The US also shares the same position, but
they are not Parties to the CBD, and are thus less vocal. Interestingly,
the statements by industry and these opposing countries share much
common ground.

The meeting had seen a split approach taken by Parties, reflecting
divergent views on whether they should start negotiating the text of a
treaty already or whether they should just continue discussing concepts
of how to deal with biopiracy. Between the developing countries and the
opposing developed countries was the European Union which sought to play
a bridging role that many questioned, because a fundamental choice was
at stake -- whether there will be a an international regime or not.

The LMMC's submissions were based on a distillation of various text
proposals compiled at the last meeting of the Working Group in Granada,
Spain in February 2006. This document popularly known as the Granada
text, has the beginnings of a structure of an international agreement.
Opposing countries continue to advocate contracts between those seeking
genetic resources and those providing the resources, whether they are
private parties, local communities or government institutions. They also
prefer codes of conduct rather than anything legally binding.

The EU was prepared to start serious substantive discussions which was a
marked shift from previous meetings.

The approach of the LMMC was to take the negotiations forward, by
working on actual text rather than to simply continue to generally
discuss the issues. This was supported by the Africa Group and the Group
of Latin American and Caribbean Countries (GRULAC). However, it was
clearly the strategy of the some of the developed countries to engage in
general discussion, since they oppose any progress in developing an
international regime on access and benefit sharing.

The eighth meeting of the Conference of the Parties of the CBD (COP8)
held in Curitiba, Brazil in March 2006 had clearly decided that the
Granada Text be used by the Working Group 'for the purposes of
continuing to elaborate and negotiate the international regime' and to
complete its work at the earliest possible time before the tenth meeting
of the Conference of the Parties (2010). It had also identified other
inputs for the Montreal meeting.

Developing countries stressed throughout the week that the Working Group
has a clear mandate from the decision of heads of States at the 2002
World Summit on Sustainable Development to negotiate an international
regime on benefit sharing. This was endorsed by the General Assembly
later in the same year, and the CBD Parties had arduously negotiated the
terms of reference at COP7 in 2004. Again, very difficult negotiations
in COP8 resulted in the final decision to specifically transmit the
Granada text for further work on the international regime.

The International Regime on Access and Benefit-Sharing is expected to
set the rules on how benefits from the utilization of genetic resources
and associated traditional knowledge are to be fairly and equitably
shared between the provider countries and the indigenous and local
communities which are the holders of the knowledge, and the companies
and research institutions which are mainly from developed countries.

Underlying the discussions is the problem of biopiracy -- where the
unique properties of biological material, from the forests and the seas
and even the soil of developing countries and indigenous and local
communities are taken from them without their knowledge and consent and
these are developed and patented into useful products and medicines
which are often unaffordable to the people from where the resources and
knowledge generates from. A study conducted in 1999 estimates the global
market value of industries using biological and genetic material is
between $500-800 billion.

The historic adoption by the UN General Assembly of the United Nations
Declaration on the Rights of Indigenous Peoples last month has given a
major boost to the demands of indigenous people in the ABS discussions.
The Declaration sets out the individual and collective rights of
indigenous peoples, recognizes their rights to land and other resources,
calls for the maintenance and strengthening of their cultural
identities, and emphasizes their right to pursue development in keeping
with their own needs and aspirations. It also prohibits discrimination
against indigenous peoples and promotes their full and effective
participation in all matters that concern them.

Directly relevant to the discussions on issues pertaining to genetic
resources and traditional knowledge is Article 31 of the Declaration:
"Indigenous peoples have the right to maintain, control, protect and
develop their cultural heritage, traditional knowledge and traditional
cultural expressions, as well as the manifestations of their sciences,
technologies and cultures, including human and genetic resources, seeds,
medicines, knowledge of the properties of fauna and flora, oral
traditions, literatures, designs, etc. They also have the right to
maintain, control, protect and develop their intellectual property over
such cultural heritage, traditional knowledge, and traditional cultural
expressions. States shall take effective measures to recognize and
protect the exercise of these rights".

Only four countries -- the US, Canada, Australia and New Zealand -- voted
against it, while 11 countries abstained. During the discussions at the
biopiracy meet here, Canada continually asserted that the Declaration
was not legally binding and that it does not represent customary
international law. They insisted that this be reflected in the report of
the meeting, and objected to any reference to the Declaration in the
documents that were being developed.

As a result of the disagreement on the status of the two papers --
"Co-Chair's Reflections on Progress Made by the Working Group on ABS at
its Fifth Meeting" and "Notes from the Co-Chair's on Proposals made at
WGABS-5" -- the meeting was held up by numerous consultations within and
between regional and political groupings on the final day.

Malaysia, on behalf of the LMMC and supported by GRULAC and the Africa
Group, had initially proposed that all the submissions from the meeting
be merged into the Granada text in the appropriate places, and that
Parties be given the opportunity to submit proposals preferably in legal
text form according to the issues identified by the sub-headings in the
Granada text.

The developed countries, led by Australia, refused to accept the
Co-Chairs' documents and made it clear that they would not negotiate on
the basis of the Granada text and opposed the LMMC's proposal to do so.
Instead, they proposed that Parties be allowed to submit a summary of
their own proposals as annexes to the meeting report.

On the morning of the final day, the meeting was delayed by several
hours in order to allow for regional and political groupings to consult.
The meeting then heard further proposals from Brazil, who forwarded the
position of the LMMC, GRULAC and the Africa Group in support of
progressive work on developing the international regime.

Brazil on behalf of those countries also proposed that Parties should be
invited to make submissions preferably in the form of operational text
by the end of November 2007 in respect of elements that are being
considered by the Working Group. The CBD Secretariat would then compile
the submissions so that more elements can be added on to the Notes.
Brazil also requested that the Co-Chairs with the support of the CBD
Executive Secretary, compile and distribute a working paper in
operational text format for the purposes of elaborating and negotiating
an international regime on access and benefit sharing.

This again met with further opposition. The EU stated that Parties
should determine the form and language of the submissions, and that all
submissions should be made available at the next Working Group meeting
instead of being compiled by the Secretariat.

Canada made the point that it did not matter how many Parties were
aligned with one view, what mattered was that there were several views,
and that the work should be focused on bringing these views together.
Canada proposed that submissions in the Co-Chair's Notes document should
be attributed to Parties and that such submissions could be pulled
together in a document. Canada then suggested that the next Working
Group should also be conducted in plenary and since there was so much
material on the table, it might be better to begin with a clean slate.

Given that the positions stated by countries at that time were poles
apart, the Bureau of the Convention, a decision-making body of the CBD
composed of regional representatives of the CBD Parties and presided
over by the country which previously hosted a Conference of the Parties,
stepped in and convened a meeting right after that session.

After the lunchtime Bureau meeting, the Co-Chairs convened the meeting
again and announced that the documentation for Working Group 6 would be
the same as it had been for this Working Group. In addition, the
Co-Chairs' Notes will be open to Parties for further submissions until
the end of the meeting.

Importantly, further submissions on concrete options on the substantive
items by Parties, governments, indigenous and local communities, and
stakeholders were invited until the end of November. The Secretariat
would then circulate a compilation of these options as soon as
practicable prior to the next meeting of the Working Group.

The Co-Chairs stressed that all of these elements have been strongly and
fully supported by the Bureau. The Bureau and other Parties have
strongly urged the Co-Chairs to continue informal consultations with a
view to moving this process forward.

To the relief of the delegates, the report was then adopted by the
meeting, with some minor amendments. However, Australia immediately
objected on the basis that they had expected to discuss the two
Co-Chairs' documents that were attachments to the report.

After another recess giving Australia time to consult, Australia
proposed that new language be inserted into the report of the meeting,
replacing text referring to the Co-Chairs' two papers. Firstly, that the
Working Group urges the Co-Chairs to continue consultations with a view
to reaching a common understanding on the way forward. And secondly,
that the Co-Chairs' two papers were their sole responsibility, and would
have the status of information documents, and not be attached to the
report of the meeting.

After some discussion, it was finally agreed that the Co-Chairs' two
documents would be information papers for the next Working Group
meeting, and, at the insistence of Mali, that these documents would be
translated into all the six UN languages. Normally, information
documents are only made available in the language received.

Developing countries were deeply disappointed with this final outcome,
as the process had hardly, if at all, moved forward. Developing
countries had wanted to begin negotiations on the basis of the Granada
text, and had hoped that the work of the Working Group over the week
would make progress on the Granada text. Instead, the week's work had
simply been downgraded to an information document.

Nevertheless, Malaysia on behalf of the LMMC, emphatically stressed that
the Montreal meeting had elaborated on key issues and the next stage has
to be about actual negotiations. Therefore, Malaysia called for the next
negotiation session to focus on the concrete text to be submitted by
Parties by the end of November in respect of the substantive elements on
the agreed agenda of the Working Group.

The sixth meeting of the Working Group will be held in Geneva from 21-25
January 2008.

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GOING FURTHER (compiled by GRAIN)

International Institute for Sustainable Development coverage of the meeting:
http://www.iisd.ca/biodiv/abs5/

"NGO statement on an international ABS regime" delivered on 8 October 2007:
http://www.publiceye.ch/en/p25013254.html

American Bioindustry Alliance interventions at the meeting:
http://www.abialliance.com/html/news.html