The state of negotiations on

ABS for COP9 of the CBD

Susanne Friedrich, BfN

(Federal Agency for Nature Conservation)

International Workshop on Access to Genetic

Resources, Traditional Knowledge and Benefit Sharing

15 and 16 February 2008 in Bremen/Germany

Outline

• International context• EU preparations since CBD COP8• Core issues of the EU position• Council conclusions (28 June 2007)• EU submission (28 Nov 2007)• EU positions for ABS WG5 and WG6 (Montreal 2007, Geneve 2008)• Activites of the Federal Agency for Nature

Conservation

International Context

• 2002 : World Summit on Sustainable Development

• 2004: 7. Conference of Parties of the CBD (CBD COP7)

• 2005/2006: Two ad-hoc working group meetings on ABS and CBD COP8 (3/2006)

• 10/2007, 1/2008: Two ABS WG meetings

• May 2008: CBD COP9 in Germany

• Spring 2010: CBD COP10 in Japan (tbc); closing date for negotiations on ABS

EU preparations since CBD COP8

•May 2008: EU aims to identify the core elements of an

international ABS regime at CBD COP9.

•October 2007 and January 2008: two international meetings

(ABS WG5 und ABS WG6)

•28. June 2007: Council meeting of the EU ministers

for environment decides preliminary EU priorities for CBD COP9.

•March 2007: G8+5 meeting of the environmental ministers

in Potsdam: international biodiversity policy (for the first time)

•February 2007: die EU transfers to its negotiation partners

interim opinions to focus on the further work

•Council decides the political direction and concludes EU position.

•Since CBD COP8 regularly expert meetings in Brussel

to develop options for a future EU position.

Core elements of the EU position

• Interests of users:

Facilitated access Transparency Legal certainty Non-discrimination Lower transaction costs Minimisation of administrative burdens

-> International minimum requirements for the content and implementation of international access rules

Core elements of the EU position

• Interests of providers:Legal certainty, transparency of applications, litigation caseassistance, lower transaction costs, minimise financial burdens

-> Options to support interests of providers

• Private international law• Disclosure requirement in patent applications• Certificate of compliance?• International definition of misappropriation?• Sectoral processes on menus of model clauses for potential inclusion in MTAs?• Facilitate information transfer using modern IT-tools• Voluntary self-bindig obligations for important user sectors?

Core elements of the EU position

• Capacity building ABS-capacity building activities already in place financed by MS and EC to implement the Bonn

Guidelines and the Action Plan for Capacity-Building on Access to Genetic Resources and Benfit-Sharing Support given to developing country delegates and

NGO-observers, particularly by the Dutch-German ABS Capacity Development Initiative for Africa

Protection of Traditional Knowledge (TK) Guidance to the CBD‘s Financial Mechanism (GEF)

Council Conclusions (28 June 2007)

• Essential: CBD COP9 will identify the main elements of the international ABS regime.

• With regard to the user sector:– Reiterates the EU its initative regarding the disclosure of origin or

source of genetic resources and associated TK in patent applications to WIPO

– Discussion should include consideration of an internationally recognised certificate of compliance with national access rules

– Discussion could include work on an international definition of misappropriation (NEW)

• EU stresses, in parallel, the conformity of national access regimes to the CBD -> establishment of international minimum requirements on national access law and practice (NEW)

• Legal certainty and compliance with ABS requirements

through sectoral work on standardising MTAs (NEW)

EU submission (28. November 2007)

• Addressing the link between access to genetic resources and additional measures to support compliance

• Developing international standards on national access law and practice

• Additional measures to support compliance with PIC and MAT

Ad hoc WG5 and WG6 on ABS

• Item: Fair and equitable sharing of benefits

The international ABS regime: Supportive environment for the successful

establishment of MATs Developing menus of model clauses for

potential inclusion in Material Transfer Agreements

Enhancing transparency

Ad hoc WG5 and WG6 on ABS

• Item: Fair and equitable sharing of benefits

• To be further elaborated:1. non-monetary and monetary benefits on mutually

agreed terms2. Access to and transfer of technology

• Further consideration:

1. Development of international minimum conditions

2. Menus of model clauses for potential inclusion in MTAs could enhance legal certainty and compliance with ABS requirements

3. Should be developed through sectoral processes in a bottom-up way with the involvement of stakeholders

Ad hoc WG5 and WG6 on ABS

• Item: Access to genetic resourcesThe international ABS regime: Proper implementation of Article 15.2 CBD by

all Parties Further measures to ensure compliance with

ABS requirements are linked to national access regimes

No discrimination of foreign users Review of existing national ABS legislation?

Ad hoc WG5 and WG6 on ABS

• Item: Access to genetic resources• To be further elaborated:1. Legal certainty, clarity and transparency of access

rules2. Recognition of the sovereign rights of Parties to

determine access

• Further consideration:1. International standards on national access law and

practice -> reference point for enforcement measures in user countries (e.g. model legislation, technical protocols; specific rules on PIC requirements; up-to-date information on national provisions…)

2. Non-discrimination of access rules3. Simplified access rules for non-commercial research

Ad hoc WG5 and WG6 on ABS

• Item: Compliance; Additional measures to support compliance with PIC and MAT

• To be further elaborated:1. Development of tools to encourage compliance

(Awareness raising activities)2. Development of tools to enforce compliance

• Further consideration:1. A binding international requirement to disclose the

origin or source of GR and associated TK in patent applications (WIPO: primary international forum)

2. An international definition of misappropriation

Ad hoc WG5 and WG6 on ABS

An international definition of misappropriation: Acquisition of a genetic resource in

circumvention of national PIC requirements that meet international access standards

Acquisition of a genetic resource without setting up MAT

Ad hoc WG5 and WG6 on ABS

• Item: Compliance; Additional measures to support compliance with PIC and MAT

• Further consideration:1. A binding international requirement to disclose the

origin or source of GR and associated TK in patent applications (WIPO: primary international forum)

2. An international definition of misappropriation3. Sectoral menus of model clauses for MTAs4. Codes of conduct for important groups of users5. Unilateral declarations by users6. Engaging with public research funding

agenies

User

measures

Ad hoc WG5 and WG6 on ABS

• The link between access to genetic resources and additional measures to support compliance

- Uncertainty about and broad variety of what exactly is to be enforced in countries with users under their jurisdiction

additional, more specific international obligations of all Parties to support complianceAssessment of national access framework by an international mechanism set up under ABS regime

Link between Access and additional measures

Source: EU submission 28 Nov 2007

International

Access Standards

Optional

assessment

of natl access

framework

Provider Country:

National Access

Framework

User Country:

Domestic measures

to support compliance

Specific international

obligations to

support complianceIF..THEN

Ad hoc WG5 and WG6 on ABS

• Item: Compliance; Internationally recognised certificate of origin/source/legal provenance

• Further consideration:1. Certificate of compliance with national access rules

2. Concept of „checkpoints“ developed in the TEG report (incentives for users, system of certificates, reference points?)

Ad hoc WG5 and WG6 on ABS

• Item: Traditional Knowledge and Genetic Resources

• EU list of issues:

1. How could the scope of an internationally recognised certificate of compliance include TK associated with GR?

2. How could the draft ethical code of conduct contribute to the effective implementation of the CBDs ABS related obligtions?

3. Ways to incorporate TK in PIC decisions?

Ad hoc WG5 and WG6 on ABS

• Item: Nature, scope and objectives of the international regime

• Annex to Decision VII/19 D:

The ABS regime « could be composed of one or more instruments within a set of principles, norms, rules and decision-making procedures, legally binding and/or non-binding. »

Ad hoc WG5 and WG6 on ABS

•Item: Nature of the international regime

But: The proposals were neither discussed, negotiated nor agreed

No fixed view on the nature of the international ABS regime

No pre-judgement whether the regime will be composed of one or more international instruments

No pre-judgement of the procedure (simple COP Decision, COP Decision to amend Convention, COP Decision to adopt an additional annex or protocol)

Ad hoc WG5 and WG6 on ABS

• Item: Scope of the international regime

Derivates

What are typical forms of derivates or products? Where is the utilisation of a GR typically considered to end?

derivates or products should remain outside the scope of international obligations of states

Resumé

• EU as mediator • Problematic issues: Menus of model clauses for MTAs International access standards for national access

legislation Requirement to disclose the origin or

source of GR Definition of misappropriation Certificate of compliance Concept of checkpoints Derivates

• „Over-regulation“?

Activities of the Federal Agency for Nature Conservation

• Research & Development Plan (F&E): menus of model clauses for potential inclusion in MATs ( for 3 sectors)

• Integration of the user sector: Study:“Users of Genetic Resources in Germany“ Workshops for users (e.g. certificate of origin) Support of positive user processes (IPEN/DFG) Support of projects (INBIO, pro benefit) National ABS website (www.abs.biodiv-chm.de) Support of the implementation of the National

Biodiversity Strategy (7 November 2007)

• Influencing the international negotiation process

THANK YOU !

•www.bfn.de•www.abs.biodiv-chm.de•http://www.bfn.de/0304_veroe.html#c22551

(ABS-scripts)