Bridges Weekly Trade News Digest • Volume 6 • Number 15 • 23rd April 2002
CBD Adopts Guidelines On Access To Genetic Resources And Alien Species
Delegates at the Sixth Conference of the Parties (COP-6) to the Convention on Biological Diversity (CBD) on 7-19 April in The Hague, The Netherlands, adopted the first-ever international guidelines on access to genetic resources and benefit-sharing (ABS). The meeting furthermore adopted Guiding Principles on alien species despite a last- minute objection by Australia based on concerns that the principles might allow countries to avoid obligations under trade agreements.
Guidelines on access and benefit-sharing
During the final Plenary, delegates adopted the "Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization" as part of the decision on ABS related to genetic resources (see BRIDGES Weekly, 18 April 2002). Seen as a "first step of an evolutionary process", the voluntary Guidelines aim to facilitate access to genetic resources on ‘mutually agreed terms’ (MAT) and on the basis of the country of origin’s ‘prior informed consent’ (PIC) by providing guidance to Parties in the development of ABS regimes while promoting capacity building, transfer of technology and the provision of financial resources.
In the course of the discussions during COP-6, several countries — including India, Colombia, Jamaica and Peru — stressed that the Guidelines should encourage countries to require the disclosure of the country of origin of the genetic resources and provide evidence of benefit-sharing and prior informed consent of traditional knowledge holders in patent applications, in line with their position in the Council for Trade-related Aspects of Intellectual Property Rights (TRIPs; see BRIDGES Trade BioRes, 21 March 2002). In the end, requirements for the disclosure of origin of the genetic resources and associated traditional knowledge in applications for intellectual property rights (IPRs) were only included in the Guidelines as possible measures to support compliance with PIC and MAT provisions along with, inter alia, voluntary certification schemes and measures discouraging unfair trade practices.
In addition, a section on the role of IPRs in implementing ABS arrangements contained in the Decision invites Parties to encourage the inclusion of disclosure requirements in IPR applications and requests the CBD Executive Secretary and the World Intellectual Property Organization to provide further information on this issue. The Decision furthermore requests the Executive Secretary to renew the application for observer status of the CBD Secretariat on the TRIPs Council, as called for by a number of countries, including India.
While delegates generally welcomed the adoption of the Guidelines, some expressed concerns about budgetary implications and realities regarding inter-sessional work to address outstanding issues on ABS. Some delegations, including Cameroon on behalf of the African Group, Ethiopia and the Philippines, called for negotiations on an internationally binding instrument on ABS.
Representatives of indigenous peoples criticised the voluntary guidelines as too weak and as providing insufficient protection for the knowledge and natural wealth of local people. They also reiterated previously voiced concerns that national governments, rather than indigenous peoples, would benefit from the commercial exploitation of TK.
Many civil society groups were also critical of the Guidelines. Malaysia-based NGO Third World Network stated that the Guidelines failed to define the rights of indigenous peoples, local communities and farmers, and to address conflict with the TRIPS Agreement. While pointing out that the Guidelines recognise the need to prevent biopiracy practices, Friends of the Earth International criticised Parties for failing to agree on the need for legally binding measures. For its part, Greenpeace said that "any agreement to stop biopiracy will be insufficient if the resources to be shared are disappearing", referring in particular to what it described as governments’ failure at COP-6 to take urgent measures to protect ancient forests.
Guiding principles on alien species controversial
Despite objections by Australia, the meeting furthermore adopted 15 Guiding Principles on how to develop effective strategies to minimise the spread and impact of invasive alien species. In the final Plenary, Australia announced its decision that it could not support the Principles due to concerns that the ambiguous language on the precautionary approach in Principles 1 (precautionary approach) and 10 (intentional introduction) might result in conflicts with obligations under trade agreements. After delegates failed to resolve the issue, COP-6 President Geke Faber, supported by the two Working Group Chairs and most delegations, adopted the Decision as originally presented to the Plenary "on the basis of past practice" with a note in the report on the objections. This led Australia to again raise its formal objection to the Decision and make reservations regarding the decision- making process.
The Principles, inter alia, recommend measures to prevent the spread of invasive alien species, with an emphasis on the least expensive and most effective measures, including border controls, quarantine measures, information exchange and capacity building. Also, recipient countries should have the opportunity to provide prior authorisation before the first intentional introduction of potentially invasive alien species.
In the multilateral trade system, such measures are generally covered by the Agreement on Sanitary and Phytosanitary Measures (SPS), which acknowledges the right of Members to take SPS measures necessary for the protection of human, animal or plant life or health. Regarding precaution, the SPS Agreement states that in cases where relevant scientific evidence is insufficient, Members may provisionally adopt health-related measures on the basis of available pertinent information. In such circumstances, however, the SPS Agreement obligates Members to undertake a risk assessment within a reasonable period of time (usually taken to mean 15 months).
For further information on the outcomes of COP-6, see the forthcoming issue (2 May) of BRIDGES Trade BioRes or subscribe by sending a blank email to subscribe_biores@ictsd.ch.
ENB Vol. 9 No. 239, 22 April 2002; "Friends of the Earth International welcomes forest action plan," PRESS RELEASE, 19 April 2002; "Greenpeace calls on world leaders to rescue the last ancient forests: conference fails to reverse trends of destruction," 19 April 2002.