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A BRIEF ANALYSIS OF COP-3
As the Convention on Biological Diversity's Conference of the Parties (COP) moved into its third year, it further refined its internal mechanisms as well as its role vis-à-vis other relevant international instruments and processes. In terms of internal COP mechanisms and processes, delegates discussed the need to focus the work programme, and took some action to exert its authority over the interim financial mechanism and the administration of the Permanent Secretariat. Delegates at COP-3 also addressed the question of how to interface with a variety of other international fora, including those related to IPR, forests and Agenda 21. These two themes were played out in a number of issue areas, as outlined in the following brief analysis of COP-3.
INTERNAL MECHANISMS: Procedural issues, including the number of working groups and informal consultations as well as the ambitious agenda, were the focus of many discussions both inside and outside the Parque Norte conference rooms. In its resolve to avoid the COP-2 experience of a proliferation of working groups, COP-3 originally established only two. The number of issues on the agenda, however, required additional deliberations outside the COW discussions. There was widespread concern about the process used to redress this situation: informal consultations conducted at the initiative of the Secretariat. Delegates found that it was difficult to fully participate given the lack of transparency in this consultation process. They further raised the concern that the process of consolidating positions is fundamentally political rather than administrative and, therefore, should fall within the purview of governments. Nonetheless, given the scope of the agenda, delegates admitted they would have found it difficult to contribute to negotiations on all issues, even through working groups that were open and pre-scheduled. In response to the problem of agenda overload, and possibly leading to a response to the problem of working group overload, the COP set in place a procedure to gather views regarding COP operations and participants’ views on the programme of work, and prepare the way for a COP-4 review of these issues.
The decisions taken regarding the financial mechanism and the UNEP-CBD Permanent Secretariat relationship also illustrate how the COP grappled with the need to manage its internal procedures. Although some believed the MOU was not necessary because the GEF is already operating according to COP guidelines, many delegates were pleased that the relationship between the two organizations was formalized. COP-3’s intentional examination of its decisions to identify additional guidance for the financial mechanism was another way in which the meeting defined its expectations for GEF performance. Last year the GEF was simply presented with all COP-2 decisions, a procedure some noted did not provide adequate guidance to the financial mechanism. The number of priority issues for the GEF increased as a result of COP-3’s decision and some noted that while the process was useful, GEF guidance remains broad. In response to this situation, delegates turned their attention to the COP-4 review of the financial mechanism. Many delegates did not want to change existing guidance until after GEF performance based on current guidance is comprehensively evaluated. The review process that COP-4 will undertake, based on the procedure established at COP-3, may conclude with action to improve the effectiveness of the financial mechanism. Some hope the review would feed back into further discussions on the MOU and further assertion of COP authority over its financial mechanism.
Difficulties that emerged during the last year in the relationship between the Permanent Secretariat and its UN institutional home, UNEP, including hiring decisions and document support, led to a COP-3 decision that provides for the two entities to develop procedures to clarify and enhance their respective roles by 27 January 1997. The decision states that procedures should provide for the managerial autonomy and efficiency of the Permanent Secretariat and ensure the administrative accountability of the Executive Secretary to the COP. The parallel relationship between the UN and the Framework Convention on Climate Change (FCCC) on matters such as personnel and financing is noted as an example to be followed, one that some have suggested affords the Executive Secretary more flexibility and autonomy than do the existing CBD arrangements.
EXTERNAL AFFAIRS: COP-3’s consideration of several substantive issues, notably IPR and Article 8(j), agricultural and forest biodiversity, is indicative of the Convention’s aspiring role as a focal point among international treaties. The overarching theme during deliberations on many issues was engagement with other processes.
For example, many observers have speculated that the focus on IPR in the context of the CBD reflects a dissatisfaction among some delegations and NGOs with its treatment under the Trade-Related aspects of Intellectual Property (TRIPs) sub-agreement to the GATT. Areas of concern include the absence of an IPR regime that recognizes traditional knowledge, certain patent regimes regarding biotechnology-derived products, and whether the WTO will consider the effect of global intellectual property regulations on the conservation and sustainable use of biodiversity. According to some delegations, there is an emerging consensus that, while the CBD will not be able to change the basic rules on IPR set down in the TRIPs agreement, it is appropriate for the CBD to have an opinion on environmental and socio-cultural aspects of IPR and to communicate this opinion to relevant fora.
While the COP has yet to articulate agreed areas of concern under the WTO, this year's meeting produced a watershed decision in its communication to World Intellectual Property Organisation (WIPO) as it engages for the first time another forum on a specific IPR issue. The COP decision on IPR contains language “noting” the possibility that WIPO may recommend international copyright protection for scientific databases. While the choice of language is weakened from the original proposal calling on the Executive Secretary to raise this issue with WIPO, the decision calls for “open and transparent evaluation” of the implications of the copyright proposal, which some developing country delegations fear could interfere with scientific and technical cooperation, create difficulties in repatriating data, and complicate the exercise of the CBD’s third objective of equitable benefit-sharing. The CBD, with the weight of an internationally-ratified treaty, may yet emerge as a significant influence on the activities of both WIPO and the WTO.
Delegates also sent a message to the upcoming session of the FAO Commission on Plant Genetic Resources for Food and Agriculture as it negotiates the revision of the International Undertaking on Plant Genetic Resources in harmony with the CBD. Without expressing a preference for the legal status of a revised International Undertaking, the decision does highlight the COP’s willingness to consider one of three options in particular: a protocol on PGRFA under the CBD. Such a realization would not only reinforce the COP’s position vis-à-vis the FAO, it would resolve the outstanding status of ex-situ collections acquired prior to the CBD’s entry into force.
The COP sent a message to yet another intergovernmental process, this time regarding forest biodiversity. During discussion of the CBD’s relationship to the Intergovernmental Panel on Forests (IPF), opinions differed on whether the draft decision on forest biological diversity represents progress on forest biodiversity or a missed opportunity. The decision’s instructions on common priorities and advice to the IPF do little to elucidate the respective roles of the CBD and the IPF in forest biodiversity, or clarify the working relationship between them. To date, the CBD has been deferential in expressing the priority that forest biodiversity should be given in the IPF. Some participants argue that rather than reacting to the IPF agenda, the COP should be more assertive in providing guidance to the IPF, particularly as the last of the scheduled IPF sessions draws near. Strengthening the CBD’s relationship to the IPF could have an impact on any decisions regarding extension of the IPF or the establishment of a similar forum for international debate on forest issues, as was alluded to at IPF-3 in September.
LOOKING FORWARD: As the COP continues to mature, a number of ideas have been put forward in an effort to improve its future operation. Some delegates suggested that one way to better manage implementation of the CBD might be to address cross-sectoral issues in the context of sectoral or thematic ones. For instance, technology transfer, finance and incentives could be examined in relation to inland water ecosystems. An example of the COP’s honing of its work programme is apparent in the decision on the meeting’s main thematic issue. Indeed, many delegates stated that the decision on agricultural biodiversity is both more focused and realistic than the Jakarta Mandate on Marine and Coastal Biodiversity. Its work programme clearly delineates action required of Parties and tasks to be carried out by the Secretariat. The decision places the responsibility for implementation squarely with governments — a distinction that has been blurred in the past — and, in so doing, may the serve as a model for future decisions on sectoral issues addressed by the COP.
Another possible solution is to refer issues to subsidiary bodies. This approach has already proven fruitful in the case of biosafety. Based on terms of reference established at COP-2, the Biosafety Working Group has already made progress on the development of a biosafety protocol, and what was among the most contentious substantive issues at COP- 2 was transformed into a primarily procedural matter at COP-3.
With the Special Session of the UN General Assembly to review progress made in implementing Agenda 21 scheduled for June 1997, it is appropriate and timely for the CBD to also engage in an exercise of self-assessment and re-orientation. As the final decision on the COP’<M>s input into the Special Session notes, biodiversity is a cross- cutting issue that interfaces with several different facets of Agenda 21, and therefore a substantive review of progress made thus far under the CBD would certainly be integral to the objectives of the Special Session. However, due to the timing of the Special Session and COP-4, this could be a missed opportunity. COP-4 has been scheduled for May 1998, six months later than previously anticipated, and thus the deadline for submission of the first national reports no longer coincides with the Special Session. Because the implementation of the CBD’s objectives will primarily occur at the national level, a more substantive review of the progress of CBD implementation would be possible if Parties have undertaken the exercise of assessing their own achievements at home. Therefore, the postponement of COP-4 will likely mean that CBD’s contribution to the Special Session will be less meaningful than it could have otherwise been.
However, COP-4 will provide an opportunity for further review, as it will be the first time that national-level implementation of the Convention will be formally considered. At its next session, the COP will also conduct an internal review of its work programme and of the effectiveness of the financial mechanism. These dual processes will enable the COP to further organize and prioritize its agenda as well as clarify and reinforce the CBD’s position vis-à-vis relevant international regimes.