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.

oOo

Promoting Farmers' Rights in ADB's NRM Projects and Investments

Convention on Biological Diversity's Cartagena ProtocolImage by _ Krystian PHOTOSynthesis (wild-thriving) _ via Flickr

By Elpidio Peria

For quite some time, even as farmers are asked about the matter of natural resources management, some have said this as an issue for the governments only though it cannot be denied there are also active groups of farmers worldwide who have fought for the recognition of their rights, especially on the farmer's right to own the land, especially at the international level. Indeed, farmers have rights, not only from Art. 9 of the International Treaty on Plant Genetic Resources on Food and Agriculture of the FAO which talks about Farmers' Rights, but also from the UN Human Rights instruments, which includes the Right to Food.

With unabated biodiversity loss, climate change, lack of funds of developing country governments in Asia-Pacific, and the uncritical tendency to use modern biotechnologies to meet food security challenges, it is important to ensure and institutionalize the rights of farmers on matters relating to agriculture and natural resources management, more importantly on their rights to land, which is best concretized by the recognition of farmers’ right to land and to directly manage productive resources. This is the only way to ensure inclusive and sustainable growth.

In the context of a tendency to use modern biotechnologies to foster productivity improvements in the farm, the rights of farmers are also an important complement to the forthcoming international instrument shepherded into completion by the Convention on Biological Diversity's Cartagena Protocol, the Supplementary Protocol on Liability and Redress from Damage caused by GMOs - shielding the small farmers from liability or enabling them to claim for redress and compensation for crop loss and any untoward effects on their health and their farming environment.

A clear articulation of what the rights of farmers are also ensures that farmers, along with indigenous peoples and local farming communities, have clear rights to recognition as well as to benefit-sharing from the uses of plant and animal genetic resources. It also guarantees their participation and decision-making on matters that relate to their well-being, including access to financial and other resources and technology. Ultimately however, the rights of farmers to manage natural resources are best guaranteed by the recognition and institutionalization of their rights to land and productive resources in agriculture. This should be the fundamental principle where any initiative of ADB on NRM should stand. If the ADB cannot change its ways now to address this, then it should be considered a failure.

oOo

Natural Resources Management in ADB

Natural Resources Management in Asian Development BankImage by Virens (Latin for greening) via Flickr

By Elpidio Peria

Natural Resources Management or NRM is nowhere in the priorities or core areas of operation of ADB's Long-Term Strategy (2008-2020) or Strategy 2020. In that document, the environment is next to infrastructure, but it deals mainly with issues relating to urban environment issues, such as climate mitigation, livable cities, etc. The ADB's own Evaluation Report in 2008 however states that Strategy 2020 has placed the sustainable management of natural resources high in its agenda particularly as it seeks to achieve sustainable and inclusive growth in developing member countries (DMCs).

The ADB's Agriculture and Natural Resources Research (ANRR) agenda derives from ADB's own 1995 paper on Agriculture and Natural Resources Policy, which has the following items : (1) developing remunerative farming systems for poor farmers; (2) enhancing income and living standards of women; (3) improving sustainable management of agriculture and natural resources; (4) enhancing the productivity of agriculture; (4) enhancing the capacity of national agriculture research stations (NARS); and (5) conducting research on socioeconomics and public policy.

ADB's own assessment of the current challenges in Asia-Pacific include : population growth and rapid urbanization, increasing competition for resources, trade liberalization and globalization of markets, including globalization of agricultural food systems where the specific challenge now is on the ability of small producers to overcome the barriers posed by concerns of food safety and quality standards and inevitably, climate change. But the real key challenges of the region relate to increasing poverty and inequality, worsening environmental degradation, growing competition for resources and climate change, all of which are actually outlined as the challenges confronted by the Strategy 2020.

The ADB's Operations Evaluation Department in a 2008 report recommended that the current ANRR Policy must be updated, to align it more closely with Strategy 2020, in addition to giving the usual support for short- and long-term research, restoring the level of ANRR funding such that it will be at US$5million per specific technical assistance and lastly, to promote the wider utilization of ANRR products.

Before CSOs may be persuaded to support these recommendations at their face value, they, and the public in general should be aware of the following :

1) for now, ADB has categorized agriculture under "Other Areas of Operation" when the bulk of Asia's poor are in the agriculture sector (including fisheries and forestry). In the ADB's 2009 Annual Report, "Agriculture and Food Security" is categorized as "Cross-Cutting Initiatives", with only 7 loans allotted with a measly $443 million in 2009, including ANR as a whole. This is a dismal failure, considering that ADB targeted to increase its lending for agriculture and rural development to more than US$2 billion in 2009

If ADB is serious in actualizing its vision of “inclusive” economic growth, agriculture should be part of its Core Area of Operation. Even in the Environment core area, the key areas there have nothing to do with forestry, fisheries and agriculture which comprise the area/sector of "Natural Resource". It should not be that ADB's notion of environment be limited only to the urban environment, as that is not where the bulk of Asia-Pacific's poor live.

2) the ADB's support for short- and long- term research, and even restoring the level of ANRR funding at US$5 million should be reconsidered. The ADB's ANRR investments are virtually allocated to the International Agricultural Research Centres (IARCs), specifically the Consultative Group on International Agricultural Research (CGIAR).

What must be asked here is : what kinds of projects has the CGIAR implemented using the technical assistance money from the ADB? The CGIAR has been mainly responsible for the environmental, social and economic problems attributed to its active push for the Green Revolution and now with this recommendation that the bulk of ADB's support to the CGIAR are "restricted funds" - which means that the funds have to be spent exclusively for specific projects that the ADB agreed to fund, we have to ask, what are those projects that are allocated with "restricted funds" from the ADB? From ADB's own documents, we can see that most of these projects are in advanced rice genomics, biotechnology, seeds extension programs, etc. involving partnerships between the CGIAR and NARS and increasingly with the private sector.  The ADB believes that the future of ANRR should be based on public-private partnership (PPP), but this open push for this kind of collaboration should be reviewed. For example, IRRI's PPP, the Hybrid Rice Consortium, the public and the political leaders of the region should be made aware of the details of auctioning out the hybrid parentals to the highest bidders from the private sector.

Another aspect of this research support relates to the National Agriculture Research Systems (NARS), which the ADB does not fund directly, unless one of these NARS, like, for example, PhilRice, has a long-time partnership with the CGIAR or the project will involve co-implementation with the CGIAR. ADB says this is done to reduce project transaction costs and to avoid thinly spreading already limited resources for ANRR, thus they want to deal only with the CGIAR.

The problem with this set-up is that the NARS cannot then develop their capacity to do agricultural R&D tailored for the specific needs and situation of the country and their farmers; what is worse, they will now become eternally dependent on the CGIAR for expertise and technical capacity since that's the only way for them to access funds from the ADB.

3) The capacity building priorities on ADB's ANRR are on advanced genomics, applied genomics (marker development), and seeds extension training for farmers, which are what the CGIAR capacity building is all about. To address the concerns on the lack of participatory approaches in CGIAR research, ADB funded the Consortium for Unfavorable Rice Environments (CURE) in 2002 which uses participatory modes of problem identification and solution.  The ADB also boasts of supporting the CGIAR's project promoting zero tillage in wheat and rice production which they say has reduced the use of diesel by more than 50 liters per hectare, but silent on the increased use of herbicides in zero-till systems.

This kind of top-down capacity building priorities, palliative participatory approaches in agricultural research, and technology fixes to the problems of farmers should not be continued. It must be noted that it was the ADB that funded the development and promotion of hybrid rice seeds in the Philippines, Indonesia, Bangladesh, India, etc. under a program coordinated by IRRI.  It was ADB too that funded the Asia Maize Biotechnology Network in 1998 which bore the fruit of commercially introducing GM corn in the Philippines. These are projects that has leveraged private sector investments in rice, corn and wheat in Asia. Who has benefited from the foray of these giant companies, definitely not the poor farmers whose numbers have not been reduced.

Writ of Kalikasan, hello anyone?

Writ of Kalikasan

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I had this rare opportunity of revisiting my law blog after a month of hiatus this lazy Saturday afternoon. I read and heard about this new and rare legal specie called writ of kalikasan. Even to seasoned lawyers, this writ sounds exotic simply because this is new, and ignorance breeds fear as well as silence.
Unknown to many, the Philippine Supreme Court recently approved the ground breaking Rules of Procedure for Environmental Cases which took effect only last 29 April 2010. The Philippines takes pride in having a number of laws protecting the environment but the record of unabated and literally massive rape of natural and environmental resources is equaled only by the magnitude of corruption in government offices. With this backdrop, the recent procedural rules crafted and passed by the Supreme Court are meant to stop these onslaughts on environment destruction, hopefully.
As I read the Rules, I was amused that there is a specific law, particularly Act No. 3572 of several decades ago, possibly of World War II vintage, that prohibits cutting of Molave trees, and even now rare sounding trees such as Tindalo and Akli!
And beware, lest you do not know yet, including myself, that R.A. No. 3571 specifically prohibits the cutting, destroying or injuring of planted or growing trees,flowering plants and shrubs or plants of scenic value along public roads, in plazas, parks, school premises or in any other public ground. As the law is worded, you can be imprisoned for uprooting what seems to be a colorful grass or vine of scenic value in a public street.
Of course, during the Martial Law years, the late dictator Marcos should be credited in passing a number of environmental laws and presidential decrees, namely: (1) P.D. No. 705, Revised Forestry Code; (2) P.D. No. 856, Sanitation Code; (3) P.D. No. 979, Marine Pollution Decree; (4) P.D. No. 1067, Water Code; (5) P.D. No. 1151, Philippine Environmental Policy of 1977; (6) P.D. No. 1433, Plant Quarantine Law of 1978; and (7) P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures.
Of recent vintage are the following environment laws: (1)R.A. No. 6969, Toxic Substances and Hazardous Waste Act; (2) R.A. No. 7076, People’s Small-Scale Mining Act; (3) R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas;
(4) R.A. No. 7942, Philippine Mining Act; (5) R.A. No. 8550, Philippine Fisheries Code; (6) R.A. No. 8749, Clean Air Act; (7) R.A. No. 9003, Ecological Solid Waste Management Act; (8) R.A. No. 9072, National Caves and Cave Resource Management Act; (9) R.A. No. 9147, Wildlife Conservation and Protection Act; (10) R.A. No. 9175, Chainsaw Act; (11) R.A. No. 9275, Clean Water Act; and (12) R.A. No. 9483, Oil Spill Compensation Act of 2007; (13) R.A. No. 7308, Seed Industry Development Act; (14) R.A. No. 7900, High-Value Crops Development Act; (15) R.A. No. 8048, Coconut Preservation Act; (16) R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; (17) R.A. No. 9522, The Philippine Archipelagic Baselines Law; (18) R.A. No. 9593, Renewable Energy Act of 2008; and (19) R.A. No. 9637, Philippine Biofuels Act, among others.
While we have many of these environment laws are in place, prosecution of violators was stifled on account of the fact that the regular Rules of Court may not have the muscle and teeth for effective and expeditious enforcement. In addition, the environmental Rules will introduce and adopt innovations and best practices ensuring the effective enforcement of remedies and redress for violation of environmental laws.
While the provisions of the regular Rules of Court are applicable, there are many new and innovative provisions under the environmental rules. Firstly, there is the consent decree which refers to a judicially-approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment. Secondly, there is the continuing mandamus which is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. Thirdly, there is the environmental protection order (EPO) refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment. Fourthly, there is the precautionary principle which states that when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat. Fifthly, there is the innovative strategic lawsuit against public participation (SLAPP) which refers to an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights.
One very interesting provision is the citizen's suit where any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. Take note that you can file an action involving an environment case by alleging that you represent minors or even generations yet unborn.
And what about that strange writ of kalikasan? Especially for prospective Philippine Bar examinees, the writ of kalikasan is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
Although it is too early to tell, the passage of the new environment rules is a welcome development in preserving our natural resources and in prosecuting violators of our environmental laws.

Finally, climate change law is passed!

It took nature in the form of devastating successive typhoons that Republic Act No. 9729 otherwise known as the "Climate Change Act of 2009" was signed last Friday into law by President Gloria Macapagal-Arroyo.
Coincidence or not, the law will hopefully consolidate government efforts, quite anemic and lacking in the aftermath of recent typhoons, in dealing with the impact of extreme weather conditions.
What politics failed to decisively pass for so long was simply rushed into law because of nature's destructive ways.