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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