Bridges Trade BioRes • Volume 4 • Number 3 • 20th February 2004

TRADE PERMEATES BIODIVERSITY TALKS IN KUALA LUMPUR


TRADE PERMEATES BIODIVERSITY TALKS IN KUALA LUMPUR

At the seventh meeting of the Conference of the Parties (COP-7) to the Convention on Biological Diversity (CBD), held in Kuala Lumpur, Malaysia, from 9 to 20 February, trade-related considerations cropped up in almost every area of discussion, including in some of the more unlikely places, such as mountain biodiversity and inland water systems. Many civil society groups deplored what they saw as a sell-out to the WTO, calling for WTO-related issues to be kept out of the CBD discussions. While delegates managed to resolve some of the more overt disagreements over trade-related language, the impact of underlying trade considerations continued to be felt during plenary discussions and in the final outcomes.

Shifting from trade to biodiversity impacts

Disagreements over trade-related language held up the adoption of decisions on mountain biodiversity, inland water systems and alien species until the last day, following insistence by several countries, including Argentina, Australia and Brazil, to include language related to avoiding trade-distortions when implementing positive incentive measures — a proposal opposed by the EC. After extensive informal discussions, this language was dropped from the three decisions and replaced with a footnote stating that the implementation of the decisions "should not promote incentives that negatively affect biodiversity of other countries". The same footnote was added to the decision on sustainable use during the plenary at the request of Argentina. As one delegate noted, this seeming shift of focus away from trade and towards biodiversity impacts could be seen as an acknowledgement of the concept of ‘mutual supportiveness’ of trade and environment as embodied in the WSSD Plan of Implementation.

Also during the plenary, Australia expressed its regret that no chapeau paragraph had been included in the decision on alien species to address trade-related issues. Australia noted that it had supported the three decisions as well as the decision on sustainable use on the assumption that Parties would implement the decisions in a manner consistent with their international rights and obligations.

Progress on incentives measures marred by concerns over Ag subsidies

Delegates failed to adopt the proposals on removing and mitigating perverse incentives, included in the decision on incentive measures (see BRIDGES Trade BioRes, 6 February 2004), instead sending it to the CBD’s Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) for further consideration at its next meeting. In the meantime, Parties are encouraged to use the draft proposals as "voluntary interim guidelines". Argentina in particular — supported by Brazil and Australia — had raised a number of concerns over the proposals, broadly related to the use of positive incentives and mitigating measures. During the plenary, Argentina registered reservations on 18 paragraphs in the decision, which should be given special attention by SBSTTA. The country cited concerns over agricultural subsidies as underlying these concerns, noting that the decision should not be used by any country to justify the provision of agricultural subsidies. Argentina furthermore stressed that before advancing on positive incentives, necessary measures should be taken to eliminate perverse incentives.

In the WTO, Argentina, Brazil and Australia, which are all members of the Cairns Group of agricultural exporting countries, are among the strong supporters of reducing agricultural subsidies. In contrast, the ‘Friends of Multifunctionality’, including the EC, Switzerland and Japan, are generally more reluctant to liberalise agricultural trade, arguing that agriculture also addresses so-called ‘non-trade concerns’ such as environment, food security and rural development.

The issue of agriculture also arose during discussions on sustainable use. While delegates adopted the Addis Ababa Principles and Guidelines for Sustainable Use of Biodiversity (see BRIDGES Trade BioRes, 6 February 2004, referenced above), they noted the need for further elaboration of issues related to agricultural biodiversity, which they recognised had not been adequately addressed during the development of the Principles. The decision requests SBSTTA to "explore the applicability of these principles and guidelines to agricultural biodiversity" before COP-9.

Disagreement over alien species remains unresolved

The COP-6 President Hans Hoogeveen conducted informal consultations on the Guiding Principles for the prevention, introduction and mitigation of the impacts of alien species (decision VI/23), based on a compromise proposal put forward on his own initiative. Delegates, however, failed to reach agreement on the proposal, which was subsequently withdrawn. During the plenary, Australia expressed its "deep and profound regret" that no consensus could be reached, reiterating its trade-related concerns over the decision (see BRIDGES Trade BioRes, 2 May 2002). Brazil reiterated its objection to the decision’s adoption on procedural grounds. Australia will seek clarification of the dispute at COP-8 and has requested the COP-7 President to conduct informal consultations in the interim.

References to trade-related issues in the decision on alien species remained largely unchanged (see BRIDGES Trade BioRes, 6 February 2004, referenced above). The decision invites the WTO and its relevant bodies to take into consideration the risks of alien invasive species in their deliberations, calling on the CBD Executive Secretary to collaborate with the WTO "whenever feasible and appropriate" on raising awareness of the issues and promoting cooperation. Delegates avoided the contentious Decision VI/23 by removing all references to the decision in the COP-7 texts, opting for a broader reference to "decisions" of the COP.

Negotiations on ABS regime to get underway

Delegates agreed to mandate the Ad hoc Open-ended Working Group on Access and Benefit-sharing to "elaborate and negotiate an international regime on access to genetic resources and benefit-sharing" based on the terms of reference included in the COP decision. As expected, delegates did not attempt to resolve the contentious issues of the regime’s legal nature, scope and elements, opting for setting a broad framework for further talks in the Working Group. After lengthy discussions over the pace of negotiations for the international regime, delegates agreed to hold two sessions of the Group before COP-8 in Thailand and Spain respectively. As one observer noted, delegates did not include a discussion on the objectives of the regime in the terms of reference, raising concerns that without clear objectives the negotiations might become more drawn-out and difficult.

The ABS Working Group will carry out its work in close collaboration with the Working Group on Article 8(j) and Related Provisions, dealing with indigenous issues, which was mandated to make recommendations to ensure that the ABS regime includes sui generis systems and measures for the protection of traditional knowledge (TK). Furthermore, the Working Group will assess the role of databases and registers in the protection of TK; the potential of and conditions under which existing and new forms of intellectual property rights (IPRs) can contribute to the objectives of Article 8(j) and related provisions; and non-intellectual-property-based sui generis forms of TK protection. Several of these issues are also under discussion at WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (see BRIDGES Trade BioRes, 20 December 2002).

Relationship with WIPO raised in debates on ABS and 8(j)

One of the last issues to be resolved in the ABS decision concerned the reference to the World Intellectual Property Organization (WIPO), discussed in the context of measures to ensure prior informed consent and mutually agreed terms. While acknowledging the usefulness of drawing on WIPO’s expertise, some developing countries expressed concern over language inviting WIPO to address the IPR issues related to access to genetic resources and disclosure requirements. Underlying these concerns were questions regarding the CBD’s relationship with WIPO, which had already been raised at the last meeting of the ABS Working Group in December 2003 (see BRIDGES Trade BioRes, 15 December 2003).

To address these concerns, the compromise text invites WIPO to "examine and where appropriate address" the interrelation of access to genetic resources and disclosure requirements in IPR applications in a manner supportive of the CBD objectives, while also calling on UNCTAD and other relevant organisations to examine these issues. Similarly, WIPO together with the CBD Secretariat, UNCTAD and other relevant organisations was invited to prepare technical studies on the role of IPRs in technology transfer in the context of the CBD as part of the Work Programme on technology transfer adopted at the COP. In addition, references to specific WIPO bodies were dropped in the decisions on ABS and Article 8(j), thereby leaving it open where these issues would be addressed in WIPO. Moreover, the ABS decision invites WIPO to regularly provide reports to the CBD Secretariat on its work, thereby formalising a process that has in practice already been in place since 1998 when COP-4 called for enhanced cooperation and information exchange with WIPO, including in the context of discussions on Article 8(j).

COP-8 will be held in Brazil in the first half of 2006.

Preliminary versions of all decisions are already available on the CBD website.

ICTSD reporting.