TWN Info Service on Intellectual
Property Issues (Oct07/06)
24 October 2007
BIOPIRACY MEET ENDS WITH NO PROGRESS
The Open Ended Ad Hoc Working Group on Access and Benefit Sharing meeting
in Montreal (8th- 12th October) ended with disappointing results as
several developed countries strongly resisted a clear negotiating text
for an international treaty against biopiracy.
The meeting was discussing an International Regime on Access and Benefit-Sharing
which 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
Below is a report of the meeting. It was published in the South North
Development Monitor on 17 October 2007. It is reproduced here with the
permission of the SUNS.
Third World Network
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UNITED NATIONS: BIOPIRACY MEET ENDS WITH NO PROGRESS
Published in SUNS #6345 dated 17 October 2007
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,
Kenya, Madagascar, Malaysia,
Mexico, Peru, Philippines,
South Africa, and
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
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
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
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.
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.
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
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
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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