Intellectual Property Watch
23 October 2010
23 October 2010
New Draft Biodiversity Treaty Text Shows Much Work Remains; Co-Chairs Hopeful
By Catherine Saez @ 4:34 pmNAGOYA, JAPAN – In weekend attire, delegates in charge of negotiating an international binding instrument protecting countries against misappropriation of their genetic resources arrived at Nagoya Congress Center on Saturday afternoon to take up a new draft text with a day and a half to solve remaining issues.
The latest draft text issued Friday, midway through the 18-29 October 10th Conference of the Parties (COP) of the Convention on Biological Diversity (CBD), showing the progress accomplished since Monday, still contains significant bracketed language that delegates will have to agree on.
The 22 October text is available here.
The Informal Consultative Group (ICG) in charge on negotiating language of the protocol could not meet the deadline of Friday and was given the weekend to finalise the text.
Co-chairs Fernando Casas of Colombia and Timothy Hodges of Canada said today at the opening of the ICG meeting that although the group was out of time, the protocol was within grasp. Hodges also said that the international protocol on access and benefit sharing (ABS) also was tied to other areas of the COP, such as the strategic plan and the mobilisation of resources.
Today, two small groups were working on specific issues, the first one on utilisation, including derivatives, and the second one on access, the co-chairs said at the opening of the ICG session. On Sunday, two other groups will be formed, one to discuss on the scope of the protocol, and another one on compliance, on which the ICG “is very close,” they said.
Essential to the resolution of many articles is the issue of derivatives, such as plant extracts, or metabolites (active compounds in plants or animals). Many countries, like Brazil, insist that derivatives should be included in the protocol, while other countries oppose this option. Civil society said in side events that derivatives were where most benefits could be drawn from (IPW, Biodiversity, Genetic Resources, Biotech, 21 October 2010).
The protocol “must include derivatives,” Paulino Franco de Carvalho, head of the Brazilian delegation, told Intellectual Property Watch in an interview.
Derivatives appear in a number of articles of the draft protocol, such as: Article 3 (scope), Article 4 (fair and equitable benefit sharing), Article 9 (traditional knowledge associated with genetic resources), Article 12 (compliance with domestic legislation or regulatory requirements on access and benefit sharing), and Article 13 (monitoring, tracking and reporting the utilisation of genetic resources and associated traditional knowledge).
Co-chairs Hodges and Casas, interviewed by Intellectual Property Watch today, said the real challenge in the issue of derivatives was not linked to the direct access to genetic resources that all countries agree should be conditioned by prior informed consent (PIC) and the establishment of mutually agreed terms (MAT) between provider and user.
The problem lies with derivatives of genetic resources acquired either in situ without using the genetic resources, like taking venom from a snake without taking the animal – as some countries want PIC and the establishment of a MAT related to the venom (which is a derivative) – or from ex situ collection without accessing genetic resources from a botanical garden not located in the country of origin for example, the co-chairs said.
Agreement on the issue of derivatives would remove a lot of bracketed text, and allow significant progress on many articles at it cuts across many of them.
Compliance and Checkpoints
Compliance is another burning issue upon which countries have difficulty agreeing. Compliance refers to compliance with ABS regulation legislation domestically, the co-chairs said. Article 12 says that parties need to ensure that in their jurisdiction, genetic resources are acquired with PIC and that a MAT has been established with the provider country, they said. Article 13 on monitoring, tracking and reporting the utilisation of genetic resources and associated traditional knowledge, is at “the heart of the compliance,” they said.
Article 13bis on non-compliance with mandatory disclosure requirements is entirely bracketed, and in Article 14 on compliance with mutually agreed terms (MAT), some brackets remain too, such as on the effective measures the states should take to ensure compliance
A system of compliance is necessary said Franco de Carvalho in the interview, and must “include a mandatory system of checkpoints.” “The real issue is checkpoints,” he said, adding that negotiators “are going in the right direction.”
As of Friday, the text indicates that the designated checkpoints could include: competent national authority in the user country, research institutions subject to public funding, entities publishing research results relating to the utilisation of genetic resources, intellectual property examination or plant and plant variety offices, authorities providing regulatory or marketing approval of products, although Intellectual property examination and patent and plant variety offices are bracketed. An additional option, entirely bracketed, mentions indigenous and local communities, including their relevant competent authorities, that may grant access to traditional knowledge associated with genetic resources.
It appears, according to delegates and the co-chairs, that most countries agree on the principle of checkpoints but would like to be able to decide on the appropriate checkpoints in their country.
A new article, Article 12bis, was also added regarding compliance with domestic legislation or regulatory requirements on access and benefit-sharing for traditional knowledge associated with genetic resources.
Article 18 has a particular significance, the co-chairs told Intellectual Property Watch, as it brings a novel way to present capacity building so that in the long term “anybody can be both provider and user,” they said. “That is the beauty of the whole concept,” they said. That is a collaborative approach allowing countries to build capacity to govern their genetic resources and associated traditional knowledge, and at the same time increase the capacity of research and development of the countries genetic resources to ad value to “your genetic resources and to others.”
There are two main components of the protocol: it allows countries to exercise sovereign rights over their genetic resources and it provides a collaborative model to add value to “your own resources and others,” the co-chairs said.
Nagoya is “the perfect opportunity” to adopt the protocol, concluded Casas and Hodges, as conditions such as the linkage of the protocol to other issues of the COP, the willingness of Japan, the host country, to see the adoption of the protocol, and the momentum around the issue.
Yesterday at a press briefing, CBD Executive Secretary Ahmed Djoghlaf said with reference to the ABS protocol that “20 articles adopted in one week” was a remarkable achievement, adding that before this week, the draft contained just principles, and no decision. Another remarkable achievement, he said, was the number of registered participants to the COP 10 with 14,000 registered participants altogether, and 10,000 participants on the ground this week, compared to 6,000 in 2008. “On 29 October, we will be able to adopt the Aichi-Nagoya protocol,” he said.
Catherine Saez may be reached at csaez@ip-watch.ch.
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