THE INTERNATIONAL UNDERTAKING, ACCESS & BENEFIT SHARING

COP Decisions and comments

INTERNATIONAL UNDERTAKING DECISION

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Many delegations and NGOs called for a rapid conclusion to the negotiations on the IU - some calling for it to be a Protocol to the CBD.

A strong message has been sent to the FAO, which needs to conclude its negotiations in time for the agreed IU to be considered by COP 6.

The Chair of the Agricultural Biodiversity Contact Group, Elzbieta Martinyuk of Poland, said at one point in the debate about the delay in completing IU negotiations:

"Is it FAO's fault? It's ours [governments' fault], isn't it?"

The pressure is on...

Final text: from draft Decision V/9 on Agricultiural Biodiversity, cross-referenced from the Access and Benefit Sharing decision para 6 bis

"12. Recognizes the potential contribution that the revised International Undertaking on Plant Genetic Resources, in harmony with the Convention, would have to assist in the implementation of this programme of work;

13. While noting the report of the Chairman of the Commission on Genetic Resources for Food and Agriculture of the Food and Agriculture Organization of the United Nations, urges the Commission to finalize its work as soon as possible. The International Undertaking is envisaged to play a crucial role in the implementation of the Convention on Biological Diversity. The Conference of the Parties affirms its willingness to consider a decision by the Conference of the Food and Agriculture Organization of the United Nations that the International Undertaking become a legally binding instrument with strong links to both the Food and Agriculture Organization of the United Nations and the Convention on Biological Diversity. It calls upon Parties to coordinate their positions in both forums. {text of ABS decision 6 bis}"

See UKabc Governance Pages for further details on these negotiations and a Call from NGOs to increase pressure to complete these rapidly

ACCESS and BENEFIT SHARING

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SUNS #4678 Tuesday 30 May 2000 south-north development monitor

SUNS [Email Edition] twentieth year 4678 tuesday 30 may 2000

ENVIRONMENT: GENETIC RESOURCES & EQUITABLE BENEFIT SHARING

Nairobi, May 26 (Cecila Oh) -- The Fifth Conference of Parties to the Convention on Biological Diversity (COP5) Friday adopted the decision to establish an Ad Hoc Open-Ended Working Group to address issues relating to access to genetic resources and the equitable sharing of benefits.

The Working Group is mandated to develop guidelines on relevant elements of access and benefit sharing. The scope of the mandate includes consideration of the terms for prior informed consent and mutually agreed terms; issues related to in situ and ex situ conservation and sustainable use; mechanisms for benefit sharing; and the means to ensure the respect, preservation and maintenance of knowledge, innovations and practices of indigenous and local communities.

In carrying out this mandate, the Working Group will take account of the reports of the Panel of Experts on Access and Benefit Sharing.

The Experts Panel, which first met in Costa Rica last year, has also been reconvened by COP5 to continue further work on outstanding issues from its first meeting.

This decision has been regarded by some delegates here as an effort to establish a process for the comprehensive consideration of the access and benefit sharing issues, whilst others are concerned that the concrete actions and decisions will be further delayed by the Working Group process.

One outstanding issue that had not received sufficient discussion during COP5 is that of the relationship of intellectual property rights (IPRs) with access and benefit sharing arrangements.

A number of developing country delegates expressed disappointment that COPV did not take the debate on IPRs, begun last year during the CBD's Intersessional Meeting in June, any further.

The Panel of Experts established to consider access and benefit sharing issues, at its first meeting in Costa Rica, October last year, had failed to come to any conclusions about the role of intellectual property rights in the implementation of access and benefit sharing arrangements. Closely related to this issue is the question of the relationship between the TRIPS agreement, with the CBD.

During the High-Level Segment of COP5 on May 24, the Malaysian Minister of Environment, Law Hieng Ding, expressed concern that the provisions of the CBD, and national efforts to safeguard biological resources, would be adversely affected by the implementation of the WTO TRIPS Agreement, particularly by Article 27.3(b) - which requires patenting of certain biological resources. "Malaysia takes note of the debate relating to the issue of patenting of biological resources in the World Trade Organisation. Malaysia fully supports the position of many developing countries that the TRIPS Agreement is incompatible with the provisions of the CBD, and their call for its revision to the effect that all life forms and natural processes should not be patentable," he added, in his statement.

He called on COP5 to send a strong message to the WTO to take appropriate measures to harmonise the provisions of the TRIPS Agreement in accordance with the objectives and provisions of the TRIPS Agreement.

The Malaysian Minister's call was supported by the African Group of countries at COP5. In a declaration issued Friday morning, the African Group called on all Parties, governments and international organisations to oppose the patenting of life forms.

Law Hieng Ding said at the high-level segment that while bio-technology offered great potential for human progress, it should be recognized that modern biotechnology, through genetic manipulation, involved introducing new or desirable traits, often from alien or different taxonomic species, into naturally occurring plant and animal species. As all species on the planet co-exist in a finely balanced and intricate arrangement, it was important to ensure that LMOs (live-modified organisms), while exhibiting qualities favourable to mankind do not upset the fine ecological balance among species. The Cartagena (biosafety) protocol struck a fine balance between trade interests in the growing biotechnology industry and the environmental and socio-economic concerns of developing countries. Malaysia hoped all Parties and other governments would institute measures for early entry into force of the protocol.

Malaysia also fully supported the proposal for a broad mandate to the Inter-governmental Committee for the Cartegena Protocol to ensure that the preparatory work for the entry into force of the protocol was completed as expeditiously as possible. And pending into force of the protocol, all Parties and Governments should adopt on a voluntary basis a transparent and responsible approach towards provision of information relating to transboundary movement of LMOs. And the private sector too should adopt corporate care and social responsibility regarding the transboundary movement of LMOs.

In a communique released Friday after their meeting, the African Group also said that it would support the good work begun by developing countries in the WTO (the African Group, the Like-Minded Group and the Least Developed Countries) to have TRIPS, and in particular, its Article 27.3(b), revised so that the patenting of life forms, including plants, animals, microorganisms and biological processes, shall be prohibited.

The African Group called on all Parties, Governments and international organisations to further strengthen the position of the African Group, the Like-Minded Group and the Least Developed Countries in the WTO, with regard to their proposals for harmonising the provisions of the TRIPS Agreement with that of the Convention on Biological Diversity.

At the national level, the African Group urged countries to examine carefully existing and proposed laws on intellectual property rights, especially those aimed at implementing TRIPS so as to maximise room for national development, as well as, for protection of Community and Farmers' Rights.

The decision of COP5 on the relationship of IPRs/TRIPS Agreement with the CBD adopts the recommendation of the Intersessional Meeting of June last year. That decision, invited the WTO, inter alia, to acknowledge the relevant provisions of the CBD, and to explore the interrelationship of the TRIPS Agreement and the CBD.

Many delegates had then expressed concern that the decision was not strong enough to reflect their serious concerns over the impact of the TRIPS Agreement and IPRs on the conservation and sustainable use of biological resources, and on the equitable sharing of benefits.

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Notes from ENB

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Decision: The decision (UNEP/CBD/COP/5/ L.26) contains three sections: ABS arrangements; the relationship between IPR and the relevant provisions of the TRIPs agreement and the CBD; and ex situ collections acquired prior to the CBD's entry into force and not addressed by the FAO Commission on Genetic Resources. With regard to ABS, Parties are requested to designate a national focal point and one or more competent national authorities to be responsible for and provide information on ABS arrangements. Parties are urged to ensure that national biodiversity strategies as well as legislative, administrative or policy measures on ABS contribute to conservation and sustainable use objectives.

To promote trust-building and transparency to facilitate the exchange of genetic resources, Parties are urged to pay particular attention to their obligations under Articles 15 (Access to Genetic Resources), 16 (Access to and Transfer of Technology) and 19 (Handling of Biotechnology, Distribution of its Benefits) of the Convention, and to report to the COP on measures taken. The decision highlights the need to promote flexibility, while recognizing the need for sufficient regulation of access to genetic resources, notes that all countries are providers and recipients of genetic resources and urges recipient countries to adopt legislative, administrative or policy measures that are supportive of efforts made by provider countries to ensure that access is subject to Articles 15, 16 and 19.

The decision states the importance of prior informed consent (PIC) and mutually agreed terms (MAT) for the implementation of ABS. In developing national legislation on access, Parties are asked to allow for the development of a multilateral system to facilitate ABS in the context of the IU. Parties are urged to finalize work in the FAO Commission on Genetic Resources as soon as possible, and the COP affirms its willingness to consider a decision by the Conference of the FAO that the IU become a legally binding instrument with strong links to both the FAO and the CBD.

It is decided to reconvene the Experts Panel on Access and Benefit-Sharing with a concrete mandate and agenda to address outstanding issues from its first meeting. Subsequently, an Ad Hoc Open-ended Working Group will be established, with a mandate to develop guidelines and other approaches for submission to the COP. The Working Group shall maintain communication with the Working Group on Article 8(j).

Specific capacity-building needs are outlined as, inter alia, assessment and inventory of biological resources, contract negotiating skills, legal drafting skills and means to protect traditional knowledge. Parties and relevant organizations are invited to submit to the Executive Secretary information about the role of IPRs in the implementation of ABS arrangements by 31 December 2000; relevant international organizations are invited to analyze IPR issues, including the provision of information on the origin of genetic resources when submitting applications for IPRs, including patents.

Regarding IPRs, the decision invites the WTO to acknowledge relevant CBD provisions and to take into account the interrelatedness of the CBD and the TRIPs agreement. The present decision will be transmitted to the WTO and WIPO. The request to the Executive Secretary to apply for observer status on the TRIPs Council is renewed.

With regard to ex situ collections, it was decided to continue the information gathering exercise initiated by Decision IV/8. The Executive Secretary is requested to gather information from Parties, governments and international organizations through questionnaires as outlined in Annexes I and II.

Ethiopia and India highlighted the issue of IPRs and endorsed the recommendation to further explore the compatibility of the Convention’s objectives and the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs agreement).

The African Group highlighted, inter alia, the issue of repatriation of Africa’s genetic resources, the need for capacity development and poverty alleviation, public awareness, participation of local communities in decision making, protection of farmers’ rights and opposition to the patenting of life forms.

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