Published by the
International Institute for Sustainable Development (IISD)
Vol. 09 No. 267
Friday, 5 December 2003
SECOND MEETING OF THE AD HOC OPEN-ENDED
WORKING GROUP ON ACCESS AND BENEFIT-SHARING:
1-5 DECEMBER 2003
ABS WG-2 HIGHLIGHTS
THURSDAY, 4 DECEMBER 2003
Delegates to the
second meeting of the Ad Hoc Open-ended Working Group on
Access and Benefit-sharing of the Convention on Biological Diversity
(CBD) met in morning, afternoon and evening sub-working group
sessions. Sub-Working Group I (SWG-I) considered a revised Chair’s
text on an international regime on access and benefit-sharing (ABS),
and Chair’s texts on: reports on experience with the Bonn
Guidelines; use of terms; and other approaches for implementing the
CBD ABS provisions. Sub-Working Group II (SWG-II) addressed a
Chair’s text on capacity building for ABS and a conference room
paper (CRP) on compliance measures for prior informed consent (PIC)
and mutually agreed terms (MAT). A brief Plenary met in late
afternoon to review progress.
REGIME: The Secretariat introduced a revised Chair’s text on
an international ABS regime.
on behalf of the EC Member States and acceding countries (EU), and
the EUROPEAN COMMUNITY (EC) supported language on fair and equitable
benefit-sharing and sovereign rights over natural resources,
provided language on facilitating access was retained. Mexico, on
behalf of the LIKE-MINDED MEGADIVERSE COUNTRIES (LMMC), and others
suggested deleting wording on facilitating access. The EC, JAPAN,
CANADA, AUSTRALIA and PALAU opposed, and wording remains bracketed.
The AFRICAN GROUP
and the LMMC, opposed by CANADA, the EU and AUSTRALIA, requested
deleting language recognizing that some Parties and stakeholders are
both users and providers. The text remains bracketed.
The AFRICAN GROUP,
the LMMC, ANTIGUA AND BARBUDA and PALAU opposed specific references
to the International Treaty on Plant Genetic Resources for Food
and Agriculture (ITPGR), with the LMMC suggesting a general
reference to relevant international organizations and instruments.
The EC, SWITZERLAND, ARGENTINA, URUGUAY and JAMAICA supported
reference to the ITPGR. Compromise wording refers to the
contribution of biodiversity-related agreements, such as the ITPGR.
The LMMC and
TANZANIA proposed, and delegates agreed, deleting wording on
ensuring balance between users’ and providers’ responsibilities.
ARGENTINA and the EU, opposed by the LMMC, favored retaining
reference to mutual supportiveness. The EU, JAPAN, ANTIGUA AND
BARBUDA and PALAU supported reference to “flexibility.” The text
The EU and
AUSTRALIA, opposed by the LMMC, supported noting the need for
further analysis of existing ABS-related instruments and regimes.
AUSTRALIA asked to emphasize that the terms of reference do not
prejudge the regime’s content.
Process for the
negotiations: On the negotiation process, the AFRICAN GROUP and
the LMMC opposed a recommendation to create an expert group. The
AFRICAN GROUP, opposed by AUSTRALIA, supported the aim of adopting a
legally binding instrument. CANADA and the COORDINATING BODY OF THE
INDIGENOUS ORGANIZATIONS OF THE AMAZON BASIN emphasized indigenous
participation. The text remains bracketed.
reference: The EC, CANADA, CUBA and JAMAICA supported a separate
section on the process, proposing an analysis of existing ABS
instruments, experience with implementation, and gaps. The section
The LMMC and the AFRICAN GROUP supported a legally binding regime
and, opposed by the EC and AUSTRALIA, requested deleting the section
on the nature of the regime.
with a US suggestion to reword language for consistency with CBD
Article 22 (Relationship with Other International Conventions). The
INTERNATIONAL INDIGENOUS FORUM ON BIODIVERSITY (IIFB) stressed the
need to refer to customary law and traditional cultural practices.
The LMMC and the AFRICAN GROUP, opposed by the EC, requested
addressing derivatives of genetic resources. JAPAN and the US noted
that derivatives and products were excluded from the Bonn
The EC, AUSTRALIA,
the AFRICAN GROUP, CHINA, and the REPUBLIC OF KOREA proposed wording
based on Article 9 of the Bonn Guidelines (Scope), and stating that
the regime should facilitate access and promote and safeguard fair
and equitable benefit-sharing. The LMMC and the AFRICAN GROUP
agreed, provided reference be made to derivatives. The paragraph
AUSTRALIA noted that
genetic resources beyond national jurisdiction fall outside the
CBD’s scope. The LMMC opposed references to facilitating research,
implementation of the CBD objectives, the functioning of the regime,
and stakeholder participation. Those references remain bracketed.
The IIFB said the regime should not only focus on commercialization
of genetic resources.
The EC favored stating that the elements of the regime be
included based on a gap-analysis. The EC and the IIFB supported, and
the LMMC and the AFRICAN GROUP opposed, listing existing ABS-related
instruments and processes. COLOMBIA, supported by the LMMC and
opposed by the EC, proposed wording on the need to ensure fair and
equitable benefit-sharing of research results. These references
The LMMC supported,
and the EC opposed, reference to the use of genetic resources,
derivatives and associated traditional knowledge for biosprospecting
beyond the jurisdiction of countries of origin. Delegates agreed to
include measures for benefit-sharing and disagreed on references to
monitoring, compliance, enforcement, and dispute settlement
The EC opposed including the type of instruments among the
modalities to be decided by COP-7. While delegates did not reach
agreement on timeframe and providing full support for indigenous
participation, they agreed to promote participation of all relevant
SWG-I agreed to
forward the amended bracketed text on the ABS regime to Plenary.
Delegates approved a Chair’s text on experience with the Bonn
Guidelines following amendments including: a proposal by the AFRICAN
GROUP to recognize constraints encountered by some developing
countries to fully utilize the Guidelines; and an invitation to
Parties, governments, indigenous and local communities and other
stakeholders to continue promoting implementation of the voluntary
USE OF TERMS:
Delegates approved a Chair’s text on use of terms, definitions
and/or glossary, following amendments proposed by the AFRICAN GROUP
to note the need to examine other relevant terms not defined in the
CBD, and the GAMBIA to note difficulties faced by some developing
countries regarding information technologies. Delegates agreed on a
request to the ABS Working Group to further examine the use of terms
not defined by the CBD and report to the COP.
OTHER APPROACHES: Delegates approved a Chair’s text on other approaches as set
out in decision VI/24 B (Other approaches for implementing the CBD
ABS provisions), with the understanding that reference to an
international certificate of origin be consistent with wording
adopted by SWG-II. Options as to whether submissions on additional
approaches go to the Clearing-house Mechanism or to the ABS Working
Group remain bracketed.
adopted SWG-Iï¿½s report (UNEP/CBD/WG-ABS/2/WG.I/L.1) with minor
BUILDING: SWG-II Chair Desh Deepak Verma (India) presented a
Chairï¿½s text on capacity-building needs for the Bonn Guidelinesï¿½
implementation. BRAZIL requested a preamï¿½bular reference to the
CBDï¿½s objective of fair and equitable benefit-sharing. The IIFB,
supported by BRAZIL, SAMOA and SAINT LUCIA, requested involving
indigenous and local communities in international and regional
cooperation. Delegates agreed that implementing an international ABS
regime could require addiï¿½tional capacity building.
On elements to be
considered when reviewing the draft action plan, BRAZIL suggested
language on taking into consideration national legislation. The EU
stressed identification of responsibiliï¿½ties, and needs and
contributions of the various key actors.
On the involvement
of, and approval from, indigenous and local communities regarding
capacity-building activities and inventories of traditional
knowledge, BRAZIL, opposed by SAMOA, suggested reference to concerns
of Parties in addition to those of indigenous and local communities.
The EU stressed the need for capacity building for the transfer and
adaptation of releï¿½vant technologies and cooperation.
referring to the linkages between benefit-sharing and the CBDï¿½s
other two objectives, and the group agreed with AUSTRALIAï¿½s
suggestion to add a paragraph on capacity building to identify
opportunities for benefits that promote conserï¿½vation and the
development of new and existing sustainable uses of biodiversity.
Delegates also included a preambular reference to SBSTTA-9ï¿½s work
programme on technology transfer, as suggested by the EU.
regarding assistance from the Global Environment Facility (GEF) with
the Action Planï¿½s implementation, the GEF clarified that projects
should be country-driven and based on national priorities. Egypt, on
behalf of the AFRICAN GROUP, opposed by the EU, proposed referring
to the transfer of biotechï¿½nologies when granting access permits.
Following consultations, delegates agreed to refer to capacity
building regarding technology transfer to enable provider countries
to participate in benefit-sharing arrangements when granting access
SWG-II approved the
text as amended.
MEASURES FOR PIC AND MAT: SWG-II Chair Verma introduced a CRP on
measures to support compliance with PIC and MAT. He drew attention
to several bracketed paragraphs referring to the relation with
ongoing work under the World Intellectual Property Organization (WIPO).
MEXICO presented a proposal resulting from informal consultations,
on: cooperation with WIPO; an international certificate of origin/
source/legal provenance; and disclosure of origin. BRAZIL stressed
that addressing IPRs related to biodiversity lies within the CBDï¿½s
mandate. Chair Verma suggested, and delegates agreed, referring to
COP decision VI/20 (Cooperation with other organizaï¿½tions,
initiatives and conventions), which recognizes the CBDï¿½s leading
role in biodiversity issues.
bracketed references to the PIC of, or benefit-sharing with,
Contracting Parties providing genetic resources. BRAZIL insisted
that reference be made to countries of origin, while COLOMBIA
suggested referring to both countries of origin and Parties
providing genetic resources. The EC, CANADA and AUSTRALIA objected,
highlighting relevant CBD language and definitions. Delegates agreed
on compromise language referring to the PIC of Contracting Parties,
including countries of origin, in accordance with CBD Articles 2
(Definitions) and 15.3 (genetic resources provided by a Contracting
Party), and indigenous and local communities providing associated
measures to encourage users to comply with national legislation,
delegates agreed to reference voluntary certification schemes.
Delegates agreed on language inviting Parties to recognize that
written or oral traditional knowledge be considered as prior art.
Delegates debated, without reaching consensus, language regarding
efforts by indigenous and local communities to develop mechanisms to
obtain the approval of holders of traditional knowledge for access
to traditional knowledge. Brackets also remain regarding: the ABS
Working Group addressing issues related to an international
certificate of origin/source/legal provenance, and to disclosure of
origin in IPR applications; and inviting WIPO to address the
interrelation between access and disclosure requirements.
The CRP was approved
as amended and bracketed.
Working Group Chair
Hans Hoogeveen (the Netherlands) proposed, and delegates approved,
Diann Black Layne (Antigua and Barbuda) as the meeting Rapporteur.
SWG-I Chair Verleye and SWG-II Chair Verma reported on progress.
The UN PERMANENT
FORUM ON INDIGENOUS ISSUES drew attention to its recommendation to
develop a code of ethics and establish a task force.
bracketed Chairï¿½s text on an international ABS regime that greeted
SWG-I delegates did not alter the committed spirit that has
prevailed so far, and delegates ploughed through the text throughout
the day. In spite of explicit proposals for trade-offs, stalemates
remained regarding derivatives, certificates of origin/ provenance
and facilitating access, and warranted a late night session.
In the less
tormented realm of SWG-II, delegates applauded the constructive
spirit that led to the approval of the Chairï¿½s text on capacity
building. Afternoon squabbling on compliance measures revealed
unresolved controversies over cooperation with WIPO, disclosure of
origin and references to countries of origin, and led one delegate
to point out attempts to renegotiate the CBD.
THINGS TO LOOK FOR TODAY
will convene at 10:00 am in Room I to consider draft recommendations
and the reports of the sub-working groups, and adopt the meetingï¿½s