Tentative Agreement on Utilization of Genetic Resources

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ABS Working Group 9 Further Resumed

Inter-regional Negotiating Group (ING) Meeting

Montreal, Canada

18 September 2010

CBD Parties Come to Tentative Agreement on Utilization of Genetic Resources

By Atty. Ping Peria

            

Seventy-six Contracting Parties to the Convention on Biological Diversity (CBD) attending the  Inter-regional Negotiating Group (ING) meeting here in Montreal, Canada today came to a  tentative agreement  on the definition of the word “utilization” of genetic resources, part of a series of measures that is aimed at putting to rest the long-running dispute among developed and developing countries on the sharing of benefits arising from the  use of the world's biodiversity.

“We hope you can live with a general consensus...this is a very strong step forward”, said Fernando Casas, Co-Chair of the ING, as he quipped that the ING will eventually come back to the use of terms in Article 2, when every other key item in the draft ABS Protocol.

What was agreed so far by the Parties to the ING is to place the word “utilization” as part of art. 2 of the draft ABS Protocol which can now pave the way for the deletion of the word “derivatives” scattered in various provisions in the emerging international treaty that is expected to stop biopiracy.

The agreement was tentative because developed countries such as Canada, EU, New Zealand, Japan and Switzerland kept on repeating as part of their acceptance of the definition that they will still fine-tune the language of the definition especially when the term is to be used in other parts of the ABS Protocol, like in the provision on access, fair and equitable sharing of benefits, TK andcompliance.

This definition of the word “utilization” has been agreed upon by a small group called by the Co-Chairs of the Working Group which worked on this text last July 2010 and is part of the so-called “core of the core” issues that once resolved should also lead to an agreement on many issues involving the sharing of benefits arising from the use of biodiversity. .

This text however was not yet incorporated in the body of the draft ABS Protocol coming out from that July 2010 meeting of the ABS Working Group, and it was then, still a footnote.

 The text on “utilization” has been extensively discussed in the afternoon going into the night, as some Parties were asked by GRULAC (Latin American and Caribbean group of countries, one of the key UN regional groups) member countries  to withdraw their text proposals that would have included the terms “chemical”, “breeding and selection” and the inclusion of a broad enumeration of what constitutes a list of typical uses of genetic resources in Annex 2 of the draft   on utilization as proposed by South Africa and the phrase “taking into account emerging and future technologies involving genetic resources” made by Philippines in the interest of letting developed countries agree to a emerging text, which in turn was considered by Japan, EU, Canada and Australia as a major advance in the negotiations.

Australia tried to stall saying this is a weekend in their  capital including New Zealand and said that they will again consult their capital about this emerging consensus and suggested a bracketing of the text which was met by a simultaneous raising of flags by  all countries in the Africa, Asia Pacific and GRULAC region to queue up in the speaker's list to respond to Australia.

 

This trick by Australia was refused by the Co-Chair at this time assuring her that Parties in the ING will have to go back to this emerging agreement on the text when they revisit art. 2 on the use of terms in the last negotiating day of this session on Tuesday, 21 September.

Given this impasse, the Co-chairs decided to move on to other topics, particularly article 4 on the fair and equitable sharing of benefits.

The discussion on art. 4 however also got stuck when there were sharp differences of opinion between developed and developing countries on the provision that “every” utilization of genetic resources should give rise to an obligation to share benefits as according to Canada  this obligation is too “imperative” and thus will cause it a lot of difficulties aside from its observation that it is not what is found in the text of the Convention.

The Philippines responded to this comment saying that this is what has been missing  since the time the CBD took effect in 1993, that there has been no benefits shared to developing countries as the text of the CBD, while mentioning fair and equitable sharing of benefits, still had to require the execution of contracts which is called “mutually agreed terms” in the Convention and the taking of various “legislative, policy and administrative” measures when in reality very few countries have legislation or any other measure in place to ensure benefit-sharing and that most utilization of genetic resources, particularly in the classic sense of the term 'biopiracy” has been without any contracts.

Malaysia expressed broad support to the formulation in Article 4  since it explicitly sets out the fact of the obligation which is to share benefits for “every” utilization of genetic resources and that it  also spells out with whom it must be shared which is with countries of origin of the genetic resources and that this is to be shared through the mechanism of mutually agreed terms or contracts.

India and Peru however expressed their contentment in deleting the word “every” for the obligation to share benefits as to them the more important concept is that these benefits must be shared with “countries of origin” of these genetic resources.

The EU has a completely different view of the matter, citing art. 15.7 of the Convention on Biological Diversity which states that it is the providing countries that will be sharing these benefits.

The view of the developing countries is that in art. 15.3 of the same Convention, the genetic resources being referred to in the Convention are 'those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention.

The problem with the concept of “providing country” is that this can be an excuse for those countries that are not the countries of origin of the genetic resources but nonetheless have these resources in abundance, like the former colonial masters UK, or Netherlands or the US who collected genetic resources throughout its history with its colonies, to claim benefits each time they also provide access to these genetic resources.

The countries who are the countries of origin of most of these resources claim otherwise, saying that if this notion of benefits accruing to countries of origin is not enshrined in the draft ABS Protocol then it would be a hollow instrument without any significance to the generation of benefits which should contribute  to the conservation and sustainable use of biodiversity.

Co-Chair Fernando Casas decided to break at around 11pm for countries to  further reflect on the interventions made, saying that countries are near agreement on these issues, perhaps a night's rest might enable countries find a compromise on these variant positions.

Earlier in the day, the ING also tackled the institutional provisions of the draft ABS Protocol, from Art. 20 to 31, coming to agreement on most of the bracketed text, only disagreeing on how the Meeting of the Parties to the Protocol would hold its first meeting side by side with the Conference of the Parties to the Protocol as Egypt was insisting that this meeting should not be held together in time as one-person delegations particularly from developing countries would have a hard time attending if both meetings will happen at the same time.

There is however bracketed language here from either “held together” or “in conjunction” and it is the EU that is raising an issue of legal ambiguity if the word “in conjunction” is used, as that phrase was lifted from the Cartagena Protocol on Biosafety, the said Protocol being an international instrument also arising from the Convention on Biological Diversity.

The Philippines however was alone in its proposal to set up a stand-alone provision on non-compliance, calling for the establishment of a subsidiary body on implementation.

The view of the Megadiverse Countries on this on the sidelines  is that this is a matter best left to the Meeting of the Parties.

 The Co-Chairs left is as such for the meantime as this is the only remaining bracketed text on the provisions on institutional provisions  aside from the other one mentioned earlier  where the EU and Egypt had differing views.

Over-all, while very slow, the ING has made some progress on its opening day of session, which was made possible through the generous donation of support by Japan, Norway, Germany and Switzerland.

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Crisis Averted On Whether to Include a Definition of Biopiracy

Definition of BiopiracyImage by John & Mel Kots via Flickr

Definition of Biopiracy
8th ABS Working Group Meeting
Montreal, Canada
13 November 2009
Day 4 Update
Crisis Averted On Whether to Include a Definition of Biopiracy
By Elpidio Peria

MONTREAL, Canada – 12 November 2009 – Negotiations for the International Regime on ABS nearly got unraveled today, when the EU insisted that its proposed definitions on misappropriation/misuse be included in the negotiations on the text of compliance, but eventually a compromise was arrived at by inserting a footnote in the text that this can be done later after the Montreal meeting of the ABS Working Group.
It was difficult for the LMMC to agree to the compromise but the agreement had the effect of unblocking one of the impediments to the negotiations.

During the plenary this morning another key negotiation impediment clarified involved the so-called “parking lot” and subheadings in the text currently before the delegates.
This so-called “parking lot” was the term used by the various contact groups this week to refer to the destination of various texts on compliance, traditional knowledge, access and benefit-sharing which they cannot agree to place within the existing subheadings and components in the current text of the International Regime on ABS.

The Co-Chairs decided there are three categories of these “parking lots” at the moment, one category refers to operative text on a main component but should belong to another component.
An example of this is the the African Group proposal made on the component on traditional knowledge involving disclosure requirements in applications for intellectual property rights, product registration and plant variety registration but should properly belong to the component on compliance.
Another type of “parking lot” involved text that does not belong in the contact group which took it up, but does not also belong either to any other component but one Party wants it taken up and for this type of “parking lot”, a category was created called “implementing and other operative text for further discussions and negotiations”.

The Co-Chairs clarified that this category can be dealt with later in the subsequent negotiations of the International Regime, but the text in this category will not be negotiated at this stage.
The Mexican proposal made in the compliance contact group creating an international compliance mechanism patterned after a similar mechanism under the Cartagena Protocol is an example of text belonging to this “parking lot”.

Finally, the Co-Chairs referred to “bridging elements” containing cross-over issues, which require further thought but difficult to approach in a compartmentalized fashion.
The EU proposal made in the compliance contact group on the definition of misappropriation/misuse can belong to this category of “parking lot” but the EU is insisting that its proposal rightfully belongs in the compliance component of the International Regime.

The fluidity of the negotiations and the challenges of dealing with the various concepts and ideas on how to deal with the key issues of the International Regime is challenging negotiators here in Montreal, but these things will eventually sort itself out in the last day of this meeting.
This is true on the issue of subheadings, which has somehow become superfluous in the negotiations on the text on capacity-building, but is still useful for giving precision to the discussions on compliance and on access and benefit-sharing, while giving some headaches to the negotiations in the text on traditional knowledge for being repetitive.

This appears to be the reason for the EU to keep on insisting that it be retained, to prevent the emergence of a clear form and content of the International Regime.

These subheadings were the “bricks and bullets” previously arrived at during the 6th meeting of the ABS Working Group in Geneva in January 2008, which proved crucial in clarifying the consensus of the Parties then on what may constitute the various components of the International Regime.
In the 7th ABS Working Group meeting in Paris, France in April 2009, these “bricks and bullets” were deemed also to be an impediment to the negotiations as it gave unequal status to the proposed text to those that have consensus among the Parties and those which did not.

By the end of this negotiations, there could be a decision whether it is ripe to have another breakthrough on this issue of sub-headings.

In the contact group on capacity building, the Philippines was given a chance to re-insert its proposal for a capacity-building measure involving training in tracking the use of biological resources and genetic resources across sectors including understanding cases of biopiracy and the 'digitalization of biopiracy'.

These proposals came out from the conference organized recently by the ASEAN Center for Biodiversity in Singapore in September 2009.

There was a lot of consternation among delegates on what “digitalization” meant but this was understood by the proponent to refer to the burgeoning field of bioinformatics, where fragments of genes and compounds are being placed in various databases that are used and exchanged among research centers worldwide and developed into something more useful, like diagnostic kits for certain diseases or a new medicine to deal with emerging diseases, or simply to advance the frontiers of biological/genetics research which have evolved into the various “omics” field- genomics, proteomics, metagenomics, etc.

Another proposal raised by Philippines for capacity-building involved the use by academia and research institutions of alternatives to intellectual property rights systems such as open-source licenses and a study of their impacts on realizing benefit-sharing.

As is usual in these meetings, these new concepts are bracketed by other delegates which gives it time to be further reflected and studied upon until the next meeting of the ABS Working Group.
In the contact group on traditional knowledge, the Philippines tried to push the concept of 'traditional knowledge associated with genetic resources' as one of the concepts that will be taken up when definitions are dealt with, but this caused a lot of dismay among developed country delegates that it was eventually withdrawn.

The delimitation of the concept of traditional knowledge to this category, that it is only “associated with traditional knowledge' is seen as an attempt to chop the concept of traditional knowledge and genetic resources into several pieces when it is an accepted notion in bioprospecting, that where plants and other biological material are explored for their medicinal and other industrial uses, they cannot be identified unless the traditional knowledge of indigenous peoples have been tapped to determine where they may be located.
It is also a fact that there are also chemical compounds, like the ones taken from marine species, that are identified without the use of traditional knowledge.

This is also important to clarify the eventual scope of the International Regime, considering that the General Assembly of the World Intellectual Property Organization or WIPO, has given a renewed mandate to the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore or IGC, to negotiate a legal instrument to deal with the misappropriation and misuse of traditional knowledge.

These and other matters will get sorted out in the subsequent meetings of the ABS Working Group which is now said to have been transferred to Rome, Italy, and not anymore in Colombia.
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Countries Start Working on Rules Against Biopiracy

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Rules Against Biopiracy
8th ABS Working Group Meeting
Montreal, Canada
12 November 2009
Day 3 Update

Countries Start Working on Rules Against Biopiracy
By Atty. Elpidio Peria

MONTREAL, Canada – 11 November 2009 – Parties to the Convention on Biological Diversity (CBD) took almost two hours agreeing on a procedure on how they will proceed in their negotiations on the various elements of the International Regime on Access and Benefit-Sharing, an international instrument that will stop biopiracy and ensure that countries and indigenous peoples get a share from the use of their biological resources and traditional knowledge.

“This is the longest five minutes in the history of the CBD,” said Tim Hodges of Canada, one of the Co-Chairpersons of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing (ABS), the subsidiary body of the CBD charged with negotiating an instrument which may either become a Protocol to the CBD, or a set of voluntary guidelines.

There was disagreement between the LMMC and the EU on how they will carry the new submissions made in this meeting on compliance into the so-called Paris text, a document developed from submissions made during the 7th Meeting of the ABS Working Group in Paris last April 2009.

Tension was palpable in the room as Brazil and the EU was called by the Co-Chairs to agree on how work shall proceed on the text on compliance.

Later, Brazil called on Malaysia and delegates in the room asked the representative of the African Group from Namibia and a few minutes, several Parties belonging to the protagonists, Canada, Malawi, Ethiopia, Colombia, Canada and Philippines joined the huddle.
Eventually, it was agreed that all new proposals made during this meeting will be integrated into the Paris text, attempting to preserve its structure and headings, but streamlining the document that will be transmitted to the final and last meeting of the ABS Working Group next year in March 2009.

After the plenary adjourned, the contact group on capacity-building met briefly right until over lunch time where the text was assessed on whether all interventions made by the Parties during the meeting of the contact group were already in the text.

The contact group on capacity-building considered a separate reworking of the African Group submission outlining the capacity requirements for governments, academia and research institutions and the private sector.
The delegate from Philippines also asked to be allowed to re-insert the submission it made in plenary and initially he was ignored, but later he was told to do it when the contact group reconvenes later in the week.
The Philippines submission was taken from the Singapore Conference on Biodiversity last September organized by the ASEAN Center for Biodiversity which proposed suggestions on what kinds of capacity-building may be undertaken, ranging from ICT to deal with biopiracy and the digitalization of biodiversity, among others.

In the afternoon, the contact groups on traditional knowledge and compliance met.  The contact group on traditional knowledge proceeded by classifying the collected submissions into whether they are of preambular nature or a statement of general principle, or whether they can be considered operational, which may constitute specific obligations for Parties.

A lengthy discussion happened on the matter of protection of traditional knowledge which will have to be subjected to the customary laws of indigenous and local communities at all times, and that this protection of traditional knowledge shall ensure that the traditional knowledge protected will remain to be vital and useful in the day-to-day lives and cultural context of the indigenous and local communities.

This proposal was objected to by the EU who said they did not understand what it meant thus it proposed it be sent to the section on community-level procedures or in other parts of the International Regime but not on the section on traditional knowledge.

The Philippines explained that its proposal is one means of ensuring there is fair and equitable benefit-sharing, especially when the subject matter of the ABS agreement, be it biological resources or traditional knowledge, is protected by way of intellectual property rights, such as patents or trademarks.

The Co-Chairs agreed it was an operational provision and moved on to consider other sections on traditional knowledge, such as the measures to address the use of traditional knowledge in the context of benefit-sharing arrangements, among others.

The contact group on compliance had a tougher discussion determining what to do with the new proposals tabled for this meeting.

After lengthy back and forth between delegates and the Co-Chairs, it was agreed that delegations who wanted to include their proposals in the Paris text had to explain what are the new elements in their intervention that added value on the existing text.

It was also necessary that Parties in the contact group would have to agree that it be included in the text, otherwise, it may either be deleted or ignored, but not yet subjected to rewording or bracketing, as that will happen in the subsequent stages of the negotiations.

Once these submissions are compiled, then they will be subjected to further negotiations in subsequent meetings of the contact group.

There was resistance from the developed countries such as Japan and the EU on the insertion of new text from the LMMC on the measure to ensure access to justice aimed at enforcing ABS agreements, but eventually it was accepted after a commitment from the LMMC that it will be reworded later.

The EU text on the international understanding of misappropriation and misuse was also extensively discussed as it was scattered throughout the text on compliance, but EU explained the rationale for it and it was also eventually accepted.

There were also various proposals from observers, such as the ESRC Centre for Economic and Social Aspects of Genomics, relating to open-source licenses on ABS, which was supported by Africa.
The rule in the CBD is that any proposal from any observer will be taken on-board once it is supported by a Contracting Party to the CBD.

The proposals from the International Indigenous Forum on Biodiversity (IIFB) were alternatively supported by countries or regional groups.

The IIFB proposals on the insertion of new items of information on the internationally recognized certificate and the duty of states to respect customary laws were accepted after it was initially resisted by the Co-Chairs and Canada.

A lengthy discussion ensued on the Mexican proposal on an international compliance mechanism, which is of a voluntary nature but gives incentives for users of genetic resources and traditional knowledge by way of giving them simplified procedures to collect material from a country providing such genetic resources.
The Mexican proposal, lifted from the Cartagena Protocol on Biosafety, does not belong to any established categories in the text on compliance, so it was sent to the Plenary for further deliberations.

The last proposal taken up, from the African Group, on the setting up disclosure requirements in applications relating to intellectual property rights, product registration and plant variety protection, was also transmitted to the Plenary for further discussion.
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Asia-Pacific Countries Regroup on Biological Diversity Convention

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Biological Diversity Convention
8th ABS Working Group Meeting
Montreal, Canada
11 November 2009

Day 2 Update
Asia-Pacific Countries Regroup on Biological Diversity Convention
By Atty. Elpidio Peria

MONTREAL, Canada – 10 November 2009 – Asia-Pacific countries who are also Contracting Parties to the Convention on Biological Diversity (CBD) re-grouped today in order to effectively fight for their rights in the on-going negotiations for the International Regime on Access and Benefit-Sharing here in Montreal, Canada.

“...We are now entering into a crucial stage of the negotiations. Developing countries from the Asia-Pacific region wish to play an active role in these negotiations. Hence they have felt the imperative need to discuss and address their commonality of interests through this newly created Like Minded Asia Pacific Group (LMAPG),” said Gurdial Singh Nijar of Malaysia, who was designated as spokesperson for the new group.
The move of these developing countries in effect left out Japan, Korea, Singapore and Thailand to fend off for themselves in the negotiations for a treaty that will stop biopiracy.

They however committed to work closely with other developing countries organized as the Like-Minded Megadiverse Countries (LMMC), GRULAC and the African Group.

This is the first time that this re-grouping of regional groups of countries has happened in the Convention on Biological Diversity.

Usually, countries attending meetings in the United Nations system are divided into key regional groups – the African Group for the countries in the continent of Africa, the EU, for the 27 countries in the European Union, the Eastern and Central European countries for countries which were formerly part of European Countries behind the Iron Curtain, the GRULAC for Latin American and Carribean group of countries, and the Asia-Pacific.

Developing countries from the Asia-Pacific group in the CBD pushing for a more active stance in the negotiations on access and benefit-sharing have labored for years under the influence of Japan, which is the number one trading partner and donor of most of the countries in the world, including the Asia-Pacific region.
The delegate from Malaysia clarified that this move of the Asia-Pacific group of countries is to have a common stand on the issues before the ABS Working Group, especially now that the negotiations for the instrument to ensure benefit-sharing from the use of genetic resources has reached a critical stage.
Malaysia also emphasized that this does not mean that the Like-Minded Megadiverse Group has split up, but rather, these developing countries in the Asia-Pacific region, number ing over forty countries , are now moving in one direction and are in a position to support the stand of the Like-Minded Megadiverse Countries or LMMC.

The LMMC is a grouping of around 17 countries which hosts 70% of the world's known biological diversity and includes Asia-Pacific countries China, India, Indonesia, Malaysia and the Philippines as its members.
This group, currently led by Brazil, has consistently called for a legally-binding treaty that will ensure the flow of benefits to the countries of origin of these genetic resources.
Brazil expressed satisfaction in the formation of the new regional group and is grateful for their support.

The discussions for the day delved on allowing countries and various observers to give new text on the various elements of the International Regime on ABS, particularly on fair and equitable sharing of benefits, access to genetic resources and compliance.

Right after adjournment of the plenary, two contact groups were formed to negotiate a document that will eventually contain provisions that will deal with traditional knowledge and capacity-building.

A contact group is a smaller grouping of countries that will meet from time-to-time to exchange views and negotiate on the outcome of a document, which will then be adopted by all countries attending the meeting on its last day.

Only the Contracting Parties to the Convention can make interventions that will matter in the outcome of the document.

The discussions proceeded within the day, but all were preliminary discussions as what had happened was that countries and observers mainly merged or cleaned up the text that is already on the table, including statements of position that were made on the floor on the first day of this session of the ABS Working Group.

Negotiations for a Treaty Dealing with Biopiracy Resumes in Canada

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Treaty On Biopiracy in Canada
8th ABS Working Group Meeting
Montreal, Canada
10 November 2009

Day 1 Update
Negotiations for a Treaty Dealing with Biopiracy Resumes in Canada
By Atty. Elpidio Peria

MONTREAL, Canada – 9 October 2009 – Member-countries of the United Nations Convention on Biological Diversity (CBD) gathered again in Montreal, Canada today to resume its negotiations on the International Regime on Access and Benefit-Sharing, an instrument that will stop biopiracy, in a meeting that its officials say is the most important in its history.

“This is an extraordinary meeting; it is not just a meeting, it is the meeting where postponing action is not an option,” said Jochen Flasbarth of Germany, the President of the Conference of the Parties.
Germany is the current President of the Conference of the Parties, the highest decision-making body of the UN treaty, by virtue of its hosting of the Conference in Germany in May 2008.
Countries attending the meeting did not waste time in the morning putting forward new texts that will be subjected to negotiations later in the week, on topics ranging from the nature of the instrument that will stop biopiracy, traditional knowledge of indigenous and local communities and capacity-building.

There was even time left in the afternoon to further consider texts on compliance, or the rules on how to make countries follow or implement their obligations under the instrument.

Later in the interventions made by countries, the African Group stated its unhappiness as one African country, Zambia, has been denied a visa to Canada to attend the meeting of the CBD body.
Canadian officials said however, informally, that they have nothing to do with the changes in the visa processing procedures in developing countries.

The African Group sentiment was supported by GRULAC, Argentina and Mexico.

The Philippines also expressed the same experience, saying it has been “victimized” by the change in procedures in the Canadian Embassy though it hoped it will not ever happen again in succeeding meetings of the CBD.

In this first day of the meeting, countries who have signed on to the CBD merely reiterated old positions, though taking into account of some recent developments.

The positions on what kind of instrument will be approved mainly delved on whether the instrument should become a legally binding instrument or will just be a set of voluntary guidelines.

This issue on the nature of the legal instrument is important as this will determine if it can stop biopiracy from happening at the national and international level.

Namibia speaking for the African Group said that the International Regime should be a comprehensive legally binding instrument, containing a set of principles, norms and rules and compliance and enforcement measures.
Mexico, speaking for the GRULAC, the regional grouping of Latin American countries, stated their consensus position that it wants a binding instrument.

Norway's position is that the International Regime is not limited to a single, legally binding instrument,and it should be a Protocol to the Convention on Biological Diversity developed from the Bonn Guidelines, with binding and non-legally binding provisions and compliance being the core legally binding provision and some institutional provisions.

Japan said that it is not in a position to accept a legally binding position unconditionally though it is open to have some binding provisions on awareness-raising, and it is their view that the nature of the instrument can be determined after discussing the various elements of the International Regime.

Thailand supports the development of the International Regime, especially consisting of one or more legally binding and non-legally binding instruments.

New Zealand said that any legally binding element of the International Regime should make legal sense and is workable, which means it is able to be implemented. Its view is that if the instrument will have to be legally binding, what would that legally binding provision be in New Zealand and how shall it be implemented. A legally binding instrument should be implementable nationally and internationally.

Switzerland is for a legally binding instrument, but said that this instrument should be flexible so as to contain norms, rules and procedures that are legally and non-legally binding. It is also important that this instrument should be implemented with other ABS agreements and be flexible with other specialized instruments that are in harmony with the CBD.

Brazil, for the Like-Minded Megadiverse Group of Countries, or LMMC, wants the instrument to be a single legally binding instrument, a Protocol to the CBD.

The EC said it follows the form follows function principle in the negotiations, and that for its part, the International Regime should include international access standards that could constitute a mix of legally and non-legally binding measures or a mix of the two.

Cuba, Indonesia, Bangladesh and Argentina spoke, in favor of a single, legally binding instrument.
Canada said that the nature of the instrument should not be considered in a vacuum and mindful of the over-arching instruction of the Conference of the Parties to the CBD, the International Regime can either have (a) binding, (b) non-legally binding, © or a mix of binding and non-legally binding outcomes.
Costa Rica spoke about its experience in applying ABS measures and said that the International Regime should be a legally-binding instrument.

Serbia said that the International Regime could either be a legally binding instrument or a combination of legally and non-legally instrument.

Jordan is for a binding instrument that has a number of measures with it, particularly compliance and implementation.

Tunisia, Liberia and Namibia supported Namibia for a binding one single instrument.

The International Indigenous Forum on Biodiversity said that the International Regime must have legally binding elements protecting the traditional knowledge and genetic resources of indigenous peoples in accordance with relevant international instruments.

Francois Meienberg, speaking for the civil society groups in the CBD said that the Bonn Guidelines have failed to protect the rights of countries and thus the instrument needs to be a protocol to the CBD and that this protocol should recognize the rights of indigenous peoples.

In the afternoon, the interventions on traditional knowledge and capacity-building were made in general, upon the instructions of the two Co-Chairs, Tim Hodges of Canada and Fernando Casas of Colombia, as the full outline of these proposals were submitted directly to the Secretariat, to be consolidated in one text to be considered the following day.

There is a three-step process agreed upon in these negotiations. The first step involves the presentation or reading of regional and country positions. The second step involves the actual negotiation where these texts are compressed, merged, deleted or bracketed taking into account other similar elements in the emerging text.
The third step involves a further negotiation of what should come out as a semi-final text that will be consolidated in the next meeting of the ABS Working Group.

The next meeting of this Working Group will be in Colombia in March 2009 but there are ideas being floated on what may be post-ABS 8 activities or meetings, mainly to firm up the text that will be finally considered in that third and final meeting.

This international instrument to control biopiracy is expected to be adopted in the 10th meeting of the Conference of the Parties to the CBD in Nagoya, Japan in October 2010.

There are however discussions in the sidelines among developing countries in Asia-Pacific that they might come up with a like-minded group of countries that will join other countries, especially the LMMC, in demanding a legally-binding instrument.

How that will turn out eventually will be determined in the coming days, and it is too early to say what will happen, as this is just the first day of a seven-day negotiating session.
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