Environment and Natural Resources Programme • Volume 4 • Number 3 • October 2010

Navigating Nagoya: Will CBD COP 10 deliver an ABS Protocol?

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From 18 to 29 October, the 193 Parties to the Convention on Biological Diversity (CBD) and an uncountable number of civil society actors are expected to meet in Nagoya, Japan for the “Kyoto conference for all living things” – the CBD’s 10th Conference of the Parties (COP). It is a meeting that the biodiversity community has been waiting for with as much anticipation as climate change negotiators awaited Copenhagen last year. Hopefully though, it will be remembered as a more successful event. Despite the slow pace of negotiations over the past year, some observers still say COP 10 has the potential to be the birth place of the long-awaited international protocol that would implement an effective system for access and benefit sharing (ABS). Also, with the latest strategic plan phasing out this year, the issue at stake is nothing less than the outlook for global efforts on conserving biodiversity over the next 10 years.

Forty percent of the world’s economy depends directly or indirectly on biological resources. The natural goods and services biodiversity provides are a key source of food, water, shelter, incomes, and livelihoods for billions of people. The rural poor especially depend on biological resources for up to 90 percent of their daily needs. With biodiversity continuing to decline and species being extinct at 1000 times the natural rate, protection of biodiversity calls for immediate action.

This call is by no means new, given the adoption of the CBD in 1992. It contains three core objectives: 1) the protection of biodiversity, 2) the sustainable use of its components, and 3) the fair and equitable sharing of benefits arising from the use of genetic resources. Already during COP 6 held in 2002, Members agreed on a first strategic plan to put these objectives into practice. Amongst other milestones, 2010 was declared the international year of biodiversity, the year by which members wanted to substantially reduce the loss of biodiversity.

As pointed out in the CBD’s Global Biodiversity Outlook 3, the 2010 target has been missed. However, even if 2010 will not be the year that the loss of biodiversity was halted, it still has the potential to be the year in which governments launch a real strategy to put the Convention into action. To achieve this aim, COP 10 will need to design a new strategic plan outlining priority areas and viable means to achieve for the next decade and establish an expert body to the UN on biodiversity. More importantly, governments will need to match the strategic plan with a robust resource mobilisation strategy – an issue that is likely to stir up talks. The 2010 biodiversity targets were missed partly as a consequence of “a lack of adequate financial resources and under-development of relevant financial mechanisms,” as the CBD Secretariat and various expert reports indicate. The global financial crisis has further aggravated this, as governmental development assistance targeted at biodiversity issues has experienced a precipitous decline over the last two years.

Most controversiall however, are the ongoing negotiations on an international protocol to ensure that the benefits arising from the use of genetic resources, often found on indigenous peoples’ land, are shared in a fair and equitable manner with the holders of such resources. Members have set COP 10 as the target for adopting the ABS protocol, putting a successful end to the protracted negotiations. The issue thus finds itself in the spotlight at Nagoya. “Reaching a consensus on an ABS Protocol is essential for a successful meeting in Nagoya,” Izabella Teixeira, Brazil’s Minister of Environment, said in an interview with PR Newswire.

Access and benefit sharing has long been an important priority on the agenda of developing countries. The interest mainly stems from the fact that the most biodiverse countries in the world are developing countries while the users of genetic resources – such as pharmaceutical companies and cosmetic firms – are traditionally situated in the richest economies. Moreover, dynamics have been highly influenced by a feeling of historical injustice caused by misappropriation by technologically advanced countries in a number of biodiversity rich but considerably poor countries.

As BioRes previously reported, ABS negotiations intensified after a first draft text was introduced by the Chairs of the ABS Working Group in March of this year. Building on what was conceived as a momentum to conclude negotiations, members resumed the March meeting twice in Montreal in July and September respectively. “The time has come to demonstrate good will and to show that we want to adopt and implement a concise, effective and fair protocol”, Timothy Hodges, Co-Chair of the ABS Working Group said in the July meeting.

However, though deliberations were generally constructive and member states were able to move ahead in the negotiations, a long list of issues remains unresolved – the most critical among them. “There is still a lot of work to be done” and the time remaining might prove too short to finalise the Protocol,” Timothy Hodges and Fernando Casas, Co-Chairs of the meeting, warned during the September meeting. Developing countries and indigenous and local communities have expressed concerns about this development and the fact that the implementation of the Convention’s objective with the most value to them remains in limbo due to political differences. In fact, some groups were considering refraining from agreeing to a new strategic plan if no progress is made on the ABS Protocol.

Difficulties seem to arise from two points. Firstly, political differences, and secondly, the topic’s highly technical and complex character. The latter issue has become apparent in particular during the last round of talks. Negotiations continued to circle around an acceptable definition for “genetic resource,” its “derivates,” and “utilisation of genetic recourses.” The already politically sensitive issue is complicated by the fact that legal implications of certain terminology and constellations are not always fully understood as effects may differ depending on the actors involved (institutions on law, environmental governance, intellectual property, etc.) and on the country concerned.

The clarification of scope of the agreement is further addressed in provisions on scope, including exemptions, and on the inclusion of associated traditional knowledge. Various aspects of enforcement, a second core element of the Protocol, are then addressed in a number of provisions on monitoring and tracking and on compliance.

To inform discussions to take place before and during COP 10, this issue of the BioRes Review features articles by experts on some of the most critical issues related to the negotiations. The aim is to provide sound, yet not necessarily complete or definitive, legal analysis on the latest draft of the ABS Protocol as a result of the 21 September Interregional Negotiation Group of the ABS Working Group. A number of personal suggestions and recommendations are also provided by the authors to address outstanding points in the negotiations on these topics. Though a large number of topics would undoubtedly benefit from such analysis, this issue’s feature articles will concentrate on the following selected issues:

Utilisation – The wording of the CBD’s third objective to ensure the fair and equitable sharing of benefits arising from the utilisation of genetic resources has proven unfortunate and presented a major stumbling block to negotiation of an effective international regime on ABS. A literal definition of genetic resources would, in effect, exclude from the remit of any regime biochemical compounds, which do not contain functional units of heredity. Developing countries have long argued that any regime must deal with not only genetic resources but also proteins, metabolites and other so-called derivatives of genetic resources. Latest developments on this issue are addressed by Kabir Bavikatte and Brendan Tobin.

Exemptions – While Parties continue to engage in heated discussions regarding the appropriate definition and meaning of genetic resources, its derivatives, use and continued use, a long list of possible exemptions adds further ambiguity to the substantive scope of the protocol. This is particularly true for genetic resources for food and agriculture, and genetic resources with human pathogen potential – two issues that are further complicated by the fact that other international organisations and agreements have their own say in this field. The sharing of human pathogen material is addressed by Fredrick Abbott while Claudio Chiarolla discusses the standing of genetic resources on food and agriculture.

Traditional Knowledge – The inclusion of traditional knowledge associated with genetic resources is of critical importance for any meaningful international ABS regime as access to genetic resources often occurs through the use of associated traditional knowledge. Accordingly, the most recent draft ABS Protocol includes several provisions relating to traditional knowledge in the form of either bracketed or unbracketed text which leave, however, a large number of important issues unresolved. Daniel Robinson and Brendan Tobin address the various outstanding issues on this matter.

Disclosure of Origin – To solve problems related to the monitoring and traceability of genetic resources, ABS negotiations have focused on the development of some form of certificate of origin/source/legal provenance – more recently called a “certificate of compliance.” Closely linked to this tool is the discussion on a requirement to disclose the origin of genetic resources and associated traditional knowledge in intellectual property applications. The disclosure requirement and the international certificate are discussed by Jorge Cabrera and Oliver Rukundo.

We hope that this compilation of articles will inform the negotiations and, together with the innumerable efforts undertaken by member states and civil society organisations, create the drive needed to make Nagoya a success.

In addition to the potential ABS protocol, this issue of the BioRes Review addresses two other topics where trade policy can influence biodiversity outcomes in an important way, namely fisheries and agriculture. In two brief pieces, Malena Sell and Jonathan Hepburn explore the channels of impact – both positive and negative.