Bridges Trade BioRes • Volume 7 • Number 18 • 19th October 2007

NO OUTCOME IN SIGHT FOR ACCESS AND BENEFIT-SHARING UNDER THE BIODIVERSITY CONVENTION

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NO OUTCOME IN SIGHT FOR ACCESS AND BENEFIT-SHARING UNDER THE BIODIVERSITY CONVENTION

Two closely related subsidiary bodies of the UN Convention on Biological Diversity (CBD) recently gathered in Montreal to negotiate outstanding elements in support of the implementation of the CBD. The fifth meeting of the Ad Hoc Open-ended Working Group on Access and Benefit Sharing (ABS) met from 8-12 October. It was followed by the fifth meeting of the Ad Hoc Open-ended Working Group on Article 8(j), Traditional Knowledge and Related Provisions, which took place from 15-19 October. Both groups saw a continued divide between countries seeking to make progress on legally-binding instruments, and those in favour of further discussions and more flexible solutions.

The group dealing with ABS will meet once more before the next CBD Conference of the Parties, scheduled for May next year. Participants in both groups felt that momentum was likely to start picking up at and after the COP only.

ABS outcome still open-ended

Access and benefit sharing (ABS) remains one of the most complex issues on the CBD agenda. Many developing countries are very concerned over "bio piracy," which refers to the misappropriation — generally by means of patents — of indigenous or traditional knowledge by foreign entities without compensatory payment. Countries take different viewpoints on how ABS should be implemented, however, with many developing countries supporting the development of an international treaty. Meanwhile, several developed countries have long opposed or dragged their feet with regard to negotiating text for an international treaty on ABS. The latest meeting of the Working Group made no progress in bridging these differences.

The two co-chairs of the Working Group, Fernando Casas from Colombia and Tim Hodges from Canada, produced two documents as the outcome of the meeting, which will be forwarded to the next session — one paper containing their reflections on areas of potential convergence, options, possible tools and concepts for clarification, and a paper comprising 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. Additions can still be made to this latter document.

One participant stressed that while there was no agreement on the papers, they would help the next Working Group, meeting in Geneva in January, to make progress.

The Working Group is tasked with negotiating an international ABS system by 2010.

Declaration on the rights of indigenous peoples makes waves at meeting

At the meeting, several delegates drew attention to the recent adoption of a "Declaration on the Rights of Indigenous Peoples" by the UN General Assembly, following over two decades of negotiations, stressing that it boosted the demands of the indigenous groups in the ABS negotiations. The declaration sets out the individual and collective rights of indigenous peoples, recognises their rights to land and other resources, calls for the maintenance and strengthening of their cultural identities, and emphasises 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.

The Secretariat of the CBD had set up a fund to enable participation of indigenous representatives within the two weeks of negotiations, aimed at enhancing and strengthening their capacity to effectively participate in decision-making related to the use of their traditional knowledge, innovations and practices relevant to the conservation and sustainable use of biological diversity.

Ahmed Djoghlaf, Executive Secretary of the CBD stressed that "If we are to achieve the 2010 Biodiversity Target, to significantly reduce the loss of biodiversity, in light of the climate change crises, we must fully recognise and value indigenous and local communities as custodians of the Earth’s biodiversity. The active involvement of indigenous and local communities around the world is essential in the achievement of this ambitious target."

The rights of indigenous communities

Following the conclusion on the Working Group on ABS, a week of negotiations focusing on indigenous groups and their rights within the CBD as well as the future ABS framework began. Article 8(j) of the CBD addresses "the preservation of knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and their promotion and wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovations and practices."

Negotiations within the Article 8(j) Working Group saw tensions between countries focusing on national implementation and others keen to negotiate a binding international instrument. Discussions on the potential for establishing a special ’sui generis’ regime to protect traditional knowledge held by indigenous communities took place in parallel with discussions on the relationship between traditional knowledge and the current international regime on intellectual property rights. One delegate noted that "regarding the ’sui generis,’ positions are very diverse, some countries want a binding instrument on the international level and others want instruments to be developed first at the national level. So it is not easy to find a common ground!"

Several delegates felt discussions had already dragged on for to long and that it was time to "move on" and engage in more focused drafting, and into more substantive negotiations on traditional knowledge. Some delegates noted that since progress at the Working Group on ABS seeking to define a framework for future negotiations had been slow, the Working Group on Article 8(j) should seize the opportunity of making real strides in the development of sui generis systems for the protection of traditional knowledge and a draft code of ethics, and thereby provide a kick-start to the next meeting of the ABS Working Group. Another delegate warned that if little progress was made, and if ABS negotiations were to pick up momentum in Geneva, the Article 8(j) agenda might be left behind.

The sixth meeting of the open-ended Working Group on ABS will take place from 21-25 January in Geneva, Switzerland. The 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 ninth biannual CBD Conference of the Parties is scheduled for May 2008 in Bonn, Germany.

Additional resources

For daily reports and a summary of the two meetings, see IISD Reporting Services at http://www.iisd.ca/biodiv/abs5/ and http://www.iisd.ca/biodiv/wg8j-5/

* 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 majority of the world’s genetic resources are contained within the territories of these countries.

ICTSD reporting.