18652ENB Vol. 9 No. 544 - Tenth Meeting of the Conference of the Parties to the Convention on Biological Diversity - Summary & Analysis
- Nov 1, 2010
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Earth Negotiations Bulletin
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A Reporting Service for Environment and Development Negotiations
Volume 09 Number 544 - Monday, 1 November 2010
SUMMARY OF THE TENTH CONFERENCE OF THE PARTIES TO THE CONVENTION ON BIOLOGICAL DIVERSITY
18-29 OCTOBER 2010
The tenth meeting of the Conference of the Parties (COP 10) to the Convention on Biological Diversity (CBD) was held from 18-29 October 2010, in Nagoya, Japan. Over 7,000 delegates representing parties and other governments, UN agencies, intergovernmental, non-governmental, indigenous and local community (ILC) representatives, academia and industry attended the meeting.
CBD COP 10 considered a series of strategic, substantive, administrative and budgetary issues, and adopted 47 decisions. Delegates also continued negotiations on an international ABS protocol; and considered: a new strategic plan, targets and a multi-year programme of work (MYPOW) for the Convention; issues related to cooperation with other conventions, organizations and initiatives; and substantive issues, including marine and coastal biodiversity, climate change, forest biodiversity, biofuels, and Article 8(j) (traditional knowledge).
Following intense, late-night sessions marked by numerous parallel deliberations, and down-to-the wire negotiations on ABS, the strategic plan and the Strategy for Resource Mobilization, an impressive "package" was adopted, making COP 10 one of the most successful meetings in the history of the Convention: the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, which, after seven years of negotiations, sets out rules and procedures for implementing the Convention's third objective; the CBD Strategic Plan for the period 2011-2020, including a mission, and strategic goals and targets aiming to inspire broad-based action by parties and stakeholders; and a decision on activities and indicators for the implementation of the Strategy for Resource Mobilization adopted at COP 9. Last but not least, the meeting: adopted a decision amounting to a de facto moratorium on geo-engineering; took a stance on the issue of synthetic biology, urging governments to apply the precautionary approach to the field release of synthetic life into the environment and acknowledging parties' right to suspend it; affirmed the role of CBD in reducing emissions from deforestation and forest degradation in developing countries, and forest conservation, sustainable forest management and enhancement of forest carbon stocks (REDD+); adopted the Tkarihwaié:ri code of ethical conduct; and established clear steps to increase cooperation among the Rio Conventions leading up to the Rio+20 Summit.
A BRIEF HISTORY OF THE CBD
The CBD was adopted on 22 May 1992, and entered into force on 29 December 1993. There are currently 193 parties to the Convention, which aims to promote the conservation of biodiversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from the use of genetic resources. The COP is the governing body of the Convention.
COP 1: At its first meeting (November - December 1994, Nassau, the Bahamas), the COP set the general framework for the Convention's implementation, by establishing the Clearing House Mechanism (CHM) and the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA), and by designating the Global Environment Facility (GEF) as the interim financial mechanism.
COP 2: At its second meeting (November 1995, Jakarta, Indonesia), the COP adopted a decision on marine and coastal biodiversity (the Jakarta Mandate) and established the Open-ended Ad Hoc Working Group on Biosafety to elaborate a protocol on biosafety, specifically focusing on transboundary movement of living modified organisms (LMOs) that may have an adverse effect on biodiversity.
COP 3: At its third meeting (November 1996, Buenos Aires, Argentina), the COP adopted work programmes on agricultural and forest biodiversity, as well as a Memorandum of Understanding with the GEF, and called for an intersessional workshop on Article 8(j) and related provisions.
COP 4: At its fourth meeting (May 1998, Bratislava, Slovakia), the COP established a Working Group on Article 8(j) and a panel of experts on ABS, and adopted the Global Taxonomy Initiative (GTI) and a work programme on marine and coastal biodiversity, as well as decisions on: inland water, agricultural and forest biodiversity, and cooperation with other agreements.
EXCOP: Following six meetings of the Biosafety Working Group between 1996 and 1999, delegates at the first Extraordinary Meeting of the COP (ExCOP) (February 1999, Cartagena, Colombia) did not agree on a compromise package to finalize negotiations on a biosafety protocol, and the meeting was suspended. The resumed ExCOP (January 2000, Montreal, Canada) adopted the Cartagena Protocol on Biosafety, and established the Intergovernmental Committee for the Cartagena Protocol on Biosafety to undertake preparations for COP/MOP 1. The Protocol addresses the safe transfer, handling and use of LMOs that may have an adverse effect on biodiversity, taking into account human health, with a specific focus on transboundary movements.
COP 5: At its fifth meeting (May 2000, Nairobi, Kenya), the COP reviewed the work programme on agricultural biodiversity, established an ABS Working Group, and adopted work programmes on dry and sub-humid lands, and incentive measures, and decisions on Article 8(j), the ecosystem approach, sustainable use, biodiversity and tourism, invasive alien species (IAS) and the GTI.
COP 6: At its sixth meeting (April 2002, The Hague, the Netherlands), the COP adopted the Convention's Strategic Plan, including the target to reduce significantly the rate of biodiversity loss by 2010. The meeting also adopted: an expanded work programme on forest biodiversity; the Bonn Guidelines on ABS; guiding principles for IAS; the Global Strategy for Plant Conservation; a work programme for the GTI; and decisions on incentive measures and Article 8(j).
COP 7: At its seventh meeting (February 2004, Kuala Lumpur, Malaysia), the COP adopted work programmes on mountain biodiversity, protected areas (PAs), and technology transfer and cooperation, and mandated the ABS Working Group to initiate negotiations on an international regime on ABS. The COP established the Ad Hoc Open-ended Working Group on Review of Implementation, and adopted: a decision to review implementation of the Convention, its Strategic Plan and progress towards achieving the 2010 target; the Akwé: Kon Guidelines for cultural, environmental and social impact assessments; the Addis Ababa Principles and Guidelines for sustainable use; and decisions on communication, education and public awareness (CEPA), incentive measures, inland waters, and marine and coastal biodiversity.
COP 8: At its eighth meeting (March 2006, Curitiba, Brazil), the COP adopted a work programme on island biodiversity and decisions on a range of issues including Article 8(j), CEPA, cooperation with other conventions and private sector engagement, PAs, including high seas PAs, incentive measures, biodiversity and climate change, and forest, marine and coastal, and agricultural biodiversity. COP 8 reaffirmed the COP 5 ban on the field testing of genetic use restriction technologies, and instructed the ABS Working Group to complete its work with regard to an international regime on ABS at the earliest possible time before COP 10, to be held in 2010.
COP 9: At its ninth meeting (May 2008, Bonn, Germany), the COP adopted a roadmap for the negotiation of the international ABS regime before the 2010 deadline for completion of negotiations, a Strategy for Resource Mobilization for the Convention, and scientific criteria and guidance for marine areas in need of protection; and established an ad hoc technical expert group (AHTEG) on biodiversity and climate change.
ABS NEGOTIATIONS: The ABS Working Group met four times between COPs 9 and 10 to negotiate the international ABS regime (April 2009, Paris, France; November 2009, Montreal, Canada; March 2010, Cali, Colombia; and July 2010, Montreal), assisted by expert, informal and regional consultations. During the first two meetings, delegates worked on consolidating a draft. In Cali, the Working Group Co-Chairs circulated a draft protocol text, but due to procedural wrangling the meeting was suspended. The resumed meeting in Montreal, using the Interregional Negotiating Group (ING) format established in Cali, worked in good spirit on the draft protocol text, reached agreement on non-controversial provisions, and made progress on certain difficult issues, including the relationship with other instruments and compliance with domestic ABS requirements. Delegates also identified key issues that required further compromises, including scope and pathogens, derivatives and the concept of utilization of genetic resources, and mechanisms to support compliance. With several sets of brackets remaining, the Working Group held an additional meeting of the ING, which convened in September 2010, in Montreal. While the meeting achieved some progress towards an improved common understanding on derivatives and the concept of utilization, key issues remained outstanding.
ARTICLE 8(J) WG 6: At its sixth meeting (November 2009, Montreal, Canada), the Working Group on Article 8(j) adopted a series of recommendations, including an advanced draft of a code of ethical conduct to ensure respect for the cultural and intellectual heritage of indigenous and local communities, and transmitted detailed views on the international ABS regime to the ABS Working Group.
SBSTTA 14: The 14th meeting of SBSTTA (May 2010, Nairobi, Kenya) witnessed the launch of the third edition of the Global Biodiversity Outlook and adopted 18 recommendations to COP 10, including on: in-depth reviews of implementation of work programmes on mountain, inland waters and marine and coastal biodiversity, PAs, biodiversity and climate change, and Article 10 (sustainable use); agricultural biodiversity and biofuels; dry and sub-humid lands; forest biodiversity; IAS; post-2010 outcome-oriented goals and targets; incentive measures; the GTI; and the Global Strategy for Plant Conservation.
WGRI 3: The third meeting of the CBD Working Group on Review of Implementation of the Convention (WGRI) (May 2010, Nairobi), adopted 12 recommendations to COP 10, including: an updated and revised strategic plan for the post-2010 period, which remained bracketed pending resolution of financial issues and negotiations on ABS; a proposed UN decade on biodiversity 2011-2020; business engagement; a proposed biodiversity technology initiative; the multi-year programme of work of the Convention for the period 2011-2020; integration of biodiversity into poverty eradication and development; and a science-policy interface on biodiversity, ecosystem services and human well being.
COP 10 REPORT
On Monday, 18 October, Jochen Flasbarth (Germany), on behalf of the COP 9 Presidency, declared the meeting open and pointed to the failure to meet the 2010 biodiversity target, calling for finalizing the strategic plan and the international ABS regime. He then handed the COP chairmanship to Ryu Matsumoto, Environment Minister of Japan.
COP 10 President Matsumoto said this was a critical time for measures to protect biodiversity, and called for new realistic global targets and for the establishment of an international ABS regime. Masaaki Kanda, Governor of the Prefecture of Aichi, shared the expectation that COP 10 will adopt post-2010 targets and the international ABS regime. Takashi Kawamura, Mayor of the City of Nagoya, stressed the important role of municipalities and citizens in living in harmony with nature.
UNEP Executive Director Achim Steiner expressed UNEP's commitment to address shortcomings in multilateral environmental agreements (MEAs) parallel governance and administrative arrangements, and emphasized that COP 10 can become a source of inspiration for successful multilateralism.
CBD Executive Secretary Ahmed Djoghlaf termed COP 10 as the most important meeting on biodiversity in UN history, in light of the relevance of the strategic plan and the ABS protocol for sustainable development.
REPORTS: Delegates heard reports on: the Biosafety Protocol COP/MOP 5, including the adoption of the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress; intersessional meetings of the Working Group on Article 8(j), SBSTTA, and WGRI (UNEP/CBD/COP/10/2 to 4); the ABS negotiations; and the GEF (UNEP/CBD/COP/10/6).
ORGANIZATIONAL MATTERS: Delegates adopted the agenda and organization of work (UNEP/CBD/COP/10/1 and Add.1); and elected Snezana Prokic (Serbia) as Rapporteur for the meeting, and Cosima Hufler (Austria) and Damaso Luna (Mexico) as Chairs of Working Groups I and II, respectively. Plenary also established an open-ended informal consultative group (ICG) on ABS, co-chaired by Fernando Casas (Colombia) and Timothy Hodges (Canada), to negotiate and finalize both the protocol and the COP decision; and a budget group, chaired by Amb. Conrad Hunte (Antigua and Barbuda). Delegates agreed to postpone consideration of pending financial rules on the scale of assessments to COP 11.
The following report is organized according to the meeting's agenda. Unless otherwise stated, deliberations were based on draft decisions included in the compilation circulated as a background document (UNEP/CBD/COP/10/1/Add.2/Rev.1); and COP 10 decisions were adopted during the closing plenary on Friday, 29 October, with no or minor amendments.
ACCESS AND BENEFIT-SHARING
The ICG on ABS met throughout the meeting to continue negotiations on a draft protocol text as forwarded by the second resumed ninth meeting of the Working Group on ABS, held on 16 October in Nagoya (UNEP/CBD/COP/10/5/Add.5). Several small groups were established to address: utilization and derivatives; compliance-related issues; the protocol's relationship with other instruments; emergency situations; TK-related issues; and the COP decision. Ministerial informal consultations were held on Thursday, 28 October, and discussed a compromise proposal put forward by the Japanese COP Presidency. Informal consultations continued during the night and the following morning, when an agreement was reached on a compromise package relating to remaining outstanding issues, including: the concept of utilization and derivatives, and related benefit-sharing; the provision on scope; non-arbitrary access procedures; TK-related issues, including a provision on publicly available TK that was eventually deleted; special considerations with regard to human, animal or plant health emergencies and food security issues; the issue of temporal scope and a related proposal on a multilateral benefit-sharing mechanism to address benefit-sharing for genetic resources and TK that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent (PIC); and compliance-related provisions on checkpoints, information requirements, and the international certificate of compliance. As a result, the closing plenary adopted the Nagoya Protocol on ABS.
During the closing plenary, Venezuela stated for the record that the Protocol does not contain the necessary elements to stop biopiracy and expressed concern about turning nature into a commodity. The African Group stated for the record that although the Protocol is not the best document, they would accept it as a starting point for work towards implementation of the CBD's third objective for the benefit of the people of Africa. Bolivia wished to record disagreement, noting that the Protocol does not fully include the views of many countries and that the real priority should be to acknowledge the contribution of indigenous peoples and protect the rights of Mother Earth. The Central and Eastern European group (CEE) recorded various positions within the group on the Protocol, but expressed appreciation for the opportunity to reach consensus, noting that the CEE would not oppose its adoption. The Like-Minded Asia-Pacific highlighted that the CBD adopted two "magnificent" treaties in less than a month and, noting that the Protocol is far from perfect, urged delegates to stop biopiracy.
The following section summarizes negotiations on main issues addressed, as well as the Protocol's main provisions.
UTILIZATION AND DERIVATIVES: The concept of utilization and derivatives was addressed as a cross-cutting issue in informal consultations throughout the meeting, and was considered critical due to linkages to scope and benefit-sharing. Resolution was reached as part of the compromise package, to include: definitions of "utilization of genetic resources," "biotechnology" and "derivative" in relation to biotechnology, under the use of terms (Article 2); no reference to derivatives in scope (Article 3); and reference to benefits arising from the utilization of genetic resources, as well as subsequent applications and commercialization under the provision on benefit-sharing (Article 4(1)).
TEMPORAL SCOPE: Issues related to scope were addressed in informal consultations. On Tuesday, 26 October, the African Group reiterated that: there is a moral obligation to share benefits arising from continuing uses of material accessed before the protocol's entry into force, and the protocol should "encourage" such benefit-sharing; and there is a legal obligation to share benefits arising from new uses of such material, possibly through a multilateral mechanism. The compromise package included no specific mention of issues related to temporal scope or continuing or new uses. It did, however, include a provision on a global multilateral benefit-sharing mechanism, to address benefit-sharing in transboundary situations or for which it is not possible to grant or obtain PIC. Similar text is included in a preambular paragraph, while according to its work plan, the Intergovernmental Committee is required to consider, at its second meeting, the need for, and modalities of, a global multilateral benefit-sharing mechanism.
RELATIONSHIP WITH OTHER AGREEMENTS (ARTICLE 3 BIS): The issue was discussed in the ICG and in a small group. Debate centered on language on mutually supportive implementation, where delegates generally agreed on the need to recognize the value of ongoing work and practices under other relevant agreements, but not on how these should be referenced.
SPECIAL CONSIDERATIONS (ARTICLE 6): The issue was mainly discussed in a small group, co-chaired by Paulino Franco de Carvalho Neto (Brazil) and François Pythoud (Switzerland). Debate centered on the need for expeditious or simplified access procedures in the case of health emergencies and related benefit-sharing, with developed countries emphasizing the need for simplified access in such cases, and developing countries wishing to ensure sharing of benefits, particularly access to affordable treatments. Although delegates reached early agreement on the general content of the provision, including references to emergency situations with regard to human, animal and plant health, a definition of emergency situations and/or reference to relevant international agreements, simplified or expeditious access procedures, and benefit-sharing, agreement on exact language remained pending until the very end.
TK (ARTICLE 9 AND RELATED PROVISIONS): The cross-cutting issue of TK was addressed in the ICG, a small group co-chaired by Janet Lowe (New Zealand) and Jorge Cabrera Medaglia (Costa Rica) and in a closed group, chaired by Lowe. Debate focused on: preambular references of relevance to TK and ILCs, particularly a reference to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); publicly available TK; access to TK held by ILCs and cooperation in cases of alleged violation; compliance with domestic legislation on access to, and use of, TK; and sharing of benefits arising out of the utilization of TK.
A provision relating to sharing of benefits from utilization of TK that has been obtained from a source other than an ILC (publicly available TK) was debated throughout the meeting, with parties expressing opposing views as to whether such a provision was required, and whether or not to use binding or non-binding language with regard to the measures that parties should take. Divergences persisted until the end of the meeting, and the provision was eventually excluded from the adopted protocol.
COMPLIANCE (ARTICLE 13): Compliance-related issues were addressed throughout the meeting under the guidance of Sem Shikongo (Namibia) and Alejandro Lago (Spain), in a contact group, a closed group consisting of parties only and bilateral "confessional" meetings. Main issues of controversy included: checkpoints; disclosure requirements; and the international certificate of compliance, with developing countries supporting mandatory provisions to ensure the protocol's implementation.
With regard to checkpoints, negotiations focused on: whether their establishment should be mandatory; whether an indicative list of checkpoints should be included; as well as what kind of information they would manage. Delegates also debated inclusion of a disclosure requirement, its mandatory nature, and consequences of non-compliance.
With regard to the international certificate of compliance, discussions focused on requirements for minimum information to be included in such a certificate and its legal relation to permits and certificates mentioned elsewhere in the protocol. Delegates also debated whether the provision aims exclusively at supporting compliance, as suggested by developing countries, or also at enhancing transparency, as promoted by developed ones; and discussed a provision regarding an international ABS ombudsperson, which was not retained in the adopted text.
Final Decision: The decision (UNEP/CBD/COP/10/L.43/Rev.1) includes sections on adoption of the Nagoya Protocol, its Intergovernmental Committee and administrative and budgetary matters. In the preamble, the COP recognizes that the international regime is constituted of the CBD, the ABS Protocol, as well as complementary instruments, including the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) and the Bonn Guidelines on ABS. It adopts the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, which will be open for signature at UN Headquarters in New York from 2 February 2011 to 1 February 2012, and calls upon CBD parties to sign and ratify it. The COP agrees that human genetic resources are not included within the Protocol's framework; and decides that the first review under Article 25 shall assess the implementation of Article 12 bis (Compliance with domestic legislation on TK) in light of developments in other relevant international organizations, including, inter alia, the World Intellectual Property Organization (WIPO), provided that they do not run counter to the CBD and the Protocol objectives.
The COP further establishes an Open-ended Ad Hoc Intergovernmental Committee for the Protocol to undertake the necessary preparations for the first Meeting of the Parties and endorses its annexed work plan. It invites the GEF to provide financial support to assist with early ratification, and requests the Secretariat to collect and make available on the CHM model contractual clauses for mutually agreed terms (MAT), and relevant guidelines and codes of conduct.
The annexed work plan for the Intergovernmental Committee includes issues to be considered at its first meeting, including cooperative procedures and institutional mechanisms to promote compliance; and at its second meeting, including the need for, and modalities of, a global multilateral benefit-sharing mechanism.
Nagoya Protocol: The annexed Nagoya Protocol on ABS includes 27 preambular clauses, 36 operative provisions, and an annex containing an indicative list of monetary and non-monetary benefits. The preamble addresses, among others:
. the importance of legal certainty and promoting equity and fairness in negotiation of MAT;
. the need for an innovative solution to address benefit-sharing in transboundary situations, or for situations in which it is not possible to grant or obtain PIC;
. the interdependence of all countries with regard to genetic resources for food and agriculture and the fundamental role of the Commission on Genetic Resources for Food and Agriculture (CGRFA) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR), including its Multilateral System;
. the World Health Organization (WHO) International Health Regulations and the importance of ensuring access to human pathogens for public health preparedness and response purposes;
. the interrelationship between genetic resources and TK, and their inseparable nature for ILCs, and the diversity of circumstances in which TK is held or owned by ILCs;
. the unique circumstances where TK, which may be oral, documented or in other forms, is held in countries;
. the UNDRIP; and
. that nothing in the Protocol shall be construed as diminishing or extinguishing the existing rights of ILCs.
Article 1 (Objective): The Protocol's objective is the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to biodiversity conservation and the sustainable use of its components.
Article 2 (Use of terms): The terms defined in CBD Article 2 apply to the Protocol. In addition, "utilization of genetic resources" means to conduct research and development on the genetic and/or biochemical composition of genetic material, including through the application of biotechnology. "Derivative" means a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity.
Article 3 (Scope): The Protocol shall apply to genetic resources within the scope of Article 15 of the Convention, to TK associated with genetic resources within the scope of the Convention, and to the benefits arising from the utilization of such resources and of such knowledge.
Article 3 bis (Relationship with international agreements and instruments): The article provides that:
. the Protocol shall not affect rights and obligations deriving from existing international agreements, except where the exercise of those rights and obligations would cause serious damage or threat to biodiversity;
. the paragraph is not intended to create a hierarchy between the Protocol and other international instruments;
. nothing in the Protocol shall prevent parties from developing and implementing other relevant international agreements, including other specialized ABS agreements, provided that they are supportive of, and do not run counter to, the CBD and Protocol objectives;
. the Protocol shall be implemented in a mutually supportive manner with relevant international instruments;
. due regard should be paid to useful and relevant ongoing work or practices under such international instruments and relevant international organizations, provided that they are supportive of, and do not run counter to, the CBD and Protocol objectives; and
. where a specialized international ABS instrument applies, that is consistent with, and does not run counter to, the CBD and Protocol objectives, the Protocol does not apply for the party or parties to the specialized instrument in respect to the specific genetic resource covered by, and for the purpose of, the specialized instrument.
Article 4 (Fair and equitable benefit-sharing): Benefits arising from the utilization of genetic resources, as well as subsequent applications and commercialization, shall be shared in a fair and equitable way upon MAT with the party providing such resources, that is the country of origin or a party that has acquired the genetic resources in accordance with the Convention. To implement the above, each party shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilization of genetic resources that are held by ILCs, in accordance with domestic legislation regarding the established rights of these ILCs over these genetic resources, are shared in a fair and equitable way with the communities concerned, based on MAT. Benefits may include monetary and non-monetary benefits, including but not limited to those listed in the annex. Parties shall take legislative, administrative or policy measures as appropriate, to share benefits arising from the utilization of TK associated with genetic resources in a fair and equitable way with ILCs holding such knowledge upon MAT.
Article 5 (Access to genetic resources): In the exercise of sovereign rights over natural resources, and subject to domestic ABS legislation or regulatory requirements, access to genetic resources for their utilization shall be subject to the PIC of the party providing such resources, that is the country of origin of such resources or a party that has acquired the genetic resources in accordance with the Convention, unless otherwise determined by that party. In accordance with domestic law, each party shall take measures, as appropriate, with the aim of ensuring that the PIC or approval and involvement of ILCs is obtained for access to genetic resources where they have the established right to grant access to such resources.
Each party requiring PIC shall take the necessary legislative, administrative or policy measures, as appropriate, to:
. provide for legal certainty, clarity and transparency of their domestic ABS legislation or regulatory requirements;
. provide for fair and non-arbitrary rules and procedures on accessing genetic resources;
. provide information on how to apply for PIC;
. provide for a clear and transparent written decision by a competent national authority, in a cost-effective manner and within a reasonable period of time;
. provide for the issuance, at the time of access of a permit or its equivalent as evidence of the decision, to grant PIC and of the establishment of MAT, and notify the ABS CHM accordingly;
. where applicable, and subject to domestic legislation, set out criteria and/or processes for obtaining PIC or approval and involvement of ILCs for access to genetic resources; and
. establish clear rules and procedures for requiring and establishing MAT. Such terms shall be set out in writing and may include: a dispute settlement clause; terms on benefit-sharing, including in relation to intellectual property rights (IPRs); terms on subsequent third-party use, if any; and terms on changes of intent, where applicable.
Article 5 bis (Access to TK associated with genetic resources): In accordance with domestic law, parties take measures, as appropriate, with the aim of ensuring that TK associated with genetic resources that is held by ILCs is accessed with the PIC or approval and involvement of these ILCs, and that MAT have been established.
Article 6 (Special considerations): In the development and implementation of ABS legislation or regulatory requirements, parties: create conditions to promote and encourage research contributing to the conservation and sustainable use of biodiversity, particularly in developing countries, including through simplified measures on access for non-commercial research purposes, taking into account the need to address a change of intent for such research; and pay due regard to cases of present or imminent emergencies that threaten or damage human, animal or plant health, as determined nationally or internationally. Parties may take into consideration the need for expeditious access to genetic resources and expeditious fair and equitable sharing of benefits arising out of the use of such genetic resources, including access to affordable treatments by those in need, especially in developing countries; and consider the importance of genetic resources for food and agriculture and their special role for food security.
Article 7 (Contribution to conservation and sustainable use): Parties encourage users and providers to direct benefits arising from the utilization of genetic resources towards the conservation of biodiversity and the sustainable use of its components.
Article 7bis (Global multilateral benefit-sharing mechanism): Parties consider the need for, and modalities of, a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and TK associated with genetic resources that occur in transboundary situations, or for which it is not possible to grant or obtain PIC. The benefits shared by users of genetic resources and TK associated with genetic resources through this mechanism shall be used to support the conservation of biodiversity and the sustainable use of its components globally.
Article 8 (Transboundary cooperation): In instances where the same genetic resources are found in-situ within the territory of more than one party, those parties endeavor to cooperate, as appropriate, with the involvement of ILCs concerned, where applicable, with a view to implementing the Protocol. Where the same TK associated with genetic resources is shared by one or more ILCs in several parties, those parties shall endeavor to cooperate, as appropriate, with the involvement of the ILCs concerned, with a view to implementing the Protocol's objective.
Article 9 (TK associated with genetic resources): In implementing their obligations under the Protocol, parties, in accordance with domestic law, take into consideration ILCs' customary laws, community protocols and procedures, as applicable, with respect to TK associated with genetic resources.
Parties, with the effective participation of the ILCs concerned, shall establish mechanisms to inform potential users of TK associated with genetic resources about their obligation (including measures) as made available through the ABS CHM for access to, and fair and equitable sharing of benefits arising from the utilization of, such knowledge.
Parties shall endeavor to support, as appropriate, the development by ILCs, including women within these communities, of: community protocols in relation to access to TK associated with genetic resources and the fair and equitable sharing of benefits arising out of the utilization of such knowledge; and minimum requirements for MAT and model contractual clauses for benefit-sharing arising from the utilization of TK associated with genetic resources.
Parties, in implementing the Protocol, shall, as far as possible, not restrict the customary use and exchange of genetic resources and associated TK within and amongst ILCs in accordance with the objectives of the Convention.
Article 10 (National focal points (NFP) and competent national authorities): Parties designate a NFP on ABS to make information available: for applicants seeking access to genetic resources, information on procedures for obtaining PIC and establishing MAT, including benefit-sharing; for applicants seeking access to TK associated with genetic resources, where possible, information on procedures for obtaining PIC or approval and involvement, as appropriate, of ILCs and establishing MAT including benefit-sharing; and information on competent national authorities, relevant ILCs and relevant stakeholders. The NFP shall be responsible for liaison with the Secretariat. Each party shall designate one or more competent national authorities on ABS who, in accordance with applicable national legislative, administrative or policy measures, will be responsible for granting access or, as applicable, issuing written evidence that access requirements have been met and be responsible for advising on applicable procedures and requirements for obtaining PIC and entering into MAT. A party may designate a single entity to fulfill the functions of both focal point and competent national authority.
Article 11 (ABS Clearing-house and information-sharing): The article establishes an ABS Clearing-house as part of the CHM. Among others, the article requires that, without prejudice to the protection of confidential information, parties make available to the ABS Clearing-House any information required by the Protocol, as well as information required pursuant to decisions taken by the COP/MOP, including: legislative, administrative and policy ABS measures; and permits or their equivalent issued at the time of access as evidence of the decision to grant PIC and of the establishment of MAT.
Article 12 (Compliance with domestic legislation or regulatory requirements on ABS): Parties take appropriate, effective and proportionate legislative, administrative or policy measures to provide that genetic resources utilized within its jurisdiction have been accessed in accordance with PIC and that MAT have been established, as required by the domestic ABS legislation or regulatory requirements of the other party. Parties shall take appropriate, effective and proportionate measures to address situations of non-compliance with measures adopted as above, and as far as possible and as appropriate, cooperate in cases of alleged violation of domestic ABS legislation or regulatory requirements.
ARTICLE 12 bis (Compliance with domestic legislation or regulatory requirements on ABS for TK associated with genetic resources): Parties take appropriate, effective and proportionate legislative, administrative or policy measures, as appropriate, to provide that TK associated with genetic resources utilized within their jurisdiction has been accessed in accordance with PIC or approval and involvement of ILCs and that MAT have been established, as required by domestic ABS legislation or regulatory requirements of the other party where such ILCs are located. As in the previous article, parties shall take measures to address non-compliance and cooperate in cases of alleged violation.
Article 13 (Monitoring the utilization of genetic resources): To support compliance, parties take measures, as appropriate, to monitor and to enhance transparency about the utilization of genetic resources, including the designation of one or more checkpoints, as follows:
. designated checkpoints would collect or receive, as appropriate, relevant information related to PIC, to the source of the genetic resource, to the establishment of MAT, and/or to the utilization of genetic resources, as appropriate;
. each party shall, as appropriate and depending on the particular characteristics of a designated checkpoint, require users of genetic resources to provide the information specified (in the above paragraph) at a designated checkpoint;
. such information, including from internationally recognized certificates of compliancewhere they are available, will, without prejudice to the protection of confidential information, be provided to relevant national authorities, to the party providing PIC and to the ABS Clearing-House, as appropriate; and
. checkpoints: must be effective; should have functions relevant to implementation; and should be relevant to the utilization of genetic resources, or to the collection of relevant information at, inter alia, any stage of research, development, innovation, pre-commercialization or commercialization.
Other measures shall include: encouraging users and providers of genetic resources to include provisions in MAT to share information on the implementation of such terms, including through reporting requirements; and encouraging the use of cost-effective communication tools and systems.
A permit or its equivalent issued in accordance with Article 5(2)(d) and made available to the ABS Clearing-House, shall constitute an internationally recognized certificate of compliance, serving as evidence that the genetic resource that it covers has been accessed in accordance with PIC and that MAT have been established, as required by the domestic ABS legislation or regulatory requirements of the party providing PIC.
This certificate shall contain the following minimum information when it is not confidential: issuing authority; date of issuance; the provider; unique identifier of the certificate; the person or entity to whom PIC was granted; subject matter or genetic resources covered by the certificate; confirmation that MAT were established; confirmation that PIC was obtained; and commercial and/or non-commercial use.
Article 14 (Compliance with MAT): Parties encourage providers and users of genetic resources and/or TK associated with genetic resources to include provisions in MAT to cover, where appropriate, dispute resolution including: the jurisdiction to which they will subject any dispute resolution processes; the applicable law; and/or options for alternative dispute resolution, such as mediation or arbitration.
Each party shall ensure that an opportunity to seek recourse is available under their legal systems, consistent with applicable jurisdictional requirements, in cases of disputes arising from MAT. Each party shall take effective measures, as appropriate, regarding access to justice and the utilization of mechanisms regarding mutual recognition and enforcement of foreign judgments and arbitral awards. The effectiveness of this article shall be reviewed by the COP/MOP in accordance with Protocol Article 25.
Article 15 (Model contractual clauses): Parties encourage, as appropriate, the development, update and use of sectoral and cross-sectoral model contractual clauses for MAT.
Article 16 (Codes of conduct, guidelines and best practices and/or standards): Parties encourage, as appropriate, the development, update and use of voluntary codes of conduct, guidelines and best practices and/or standards in relation to ABS.
Article 17 (Awareness-raising): Parties take measures to raise awareness of the importance of genetic resources and TK associated with genetic resources, and ABS-related issues, and includes an indicative list of such measures, including establishment and maintenance of a help desk for ILCs and awareness-raising of community protocols and ILC procedures.
Article 18 (Capacity): Parties cooperate in the capacity building, capacity development and strengthening of human resources and institutional capacities to effectively implement the Protocol in developing country parties, in particular the least developed countries (LDCs) and small island developing states (SIDS) among them, and parties with economies in transition, including through existing global, regional, subregional and national institutions and organizations. In this context, parties should facilitate the involvement of ILCs and relevant stakeholders, including NGOs and the private sector. As a basis for appropriate measures, developing country parties should identify their national capacity needs and priorities through national capacity self-assessments.
Article 18 bis (Technology transfer, collaboration and cooperation): In accordance with CBD Articles 15, 16, 18 and 19, parties collaborate and cooperate on technical and scientific research and development programmes, including biotechnological research activities, as a means to achieve the Protocol's objective. The parties undertake to promote and encourage access to technology by, and transfer of technology to, developing country parties, in order to enable the development and strengthening of a sound and viable technological and scientific base for the attainment of the CBD and Protocol objectives. Where possible and appropriate, such collaborative activities shall take place in and with a party or the parties providing genetic resources that is the country or are the countries of origin of such resources or a party or parties that have acquired the genetic resources in accordance with the Convention.
Article 18 ter (Non-parties): Parties encourage non-parties to adhere to the Protocol and to contribute appropriate information to the ABS Clearing-House.
Article 19 (Financial mechanism and resources): The Convention's financial mechanism shall be the financial mechanism for the Protocol. In providing guidance, the COP/MOP shall take into account the needs of developing country parties as well as the capacity needs and priorities of ILCs, including women within these communities.
Article 24 (Procedures and mechanisms to promote compliance with the Protocol): The COP/MOP, at its first meeting, consider and approve cooperative procedures and institutional mechanisms to promote compliance with the provisions of the Protocol and to address cases of non-compliance. These procedures and mechanisms shall include provisions to offer advice or assistance, where appropriate. They shall be separate from, and without prejudice to, the dispute settlement procedures and mechanisms under CBD Article 27.
Article 25 (Assessment and review): The COP/MOP undertakes four years after the entry into force of the Protocol and thereafter at intervals determined by the COP/MOP an evaluation of the Protocol's effectiveness.
The remaining articles include institutional provisions and final clauses: Article 20 (Conference of the Parties serving as the Meeting of the Parties to the Protocol); Article 21 (Subsidiary bodies); Article 22 (Secretariat); Article 23 (Monitoring and reporting); Article 26 (Signature); and Article 27 (Entry into force). An annex to the protocol includes an indicative list of monetary and non-monetary benefits.
STRATEGIC ISSUES FOR EVALUATING PROGRESS AND SUPPORTING IMPLEMENTATION
PROGRESS TOWARD THE 2010 BIODIVERSITY TARGET AND GLOBAL BIODIVERSITY OUTLOOK (GBO): The item was first discussed in WG II on Monday, 18 October. Draft decisions on GBO 3 (UNEP/CBD/COP/10/WG.2/CRP.1) and on implementation of the Convention and the Strategic Plan (UNEP/CBD/COP/10/WG.2/CRP.2 and Rev.1) were discussed on Friday, 22 October, and accepted on Monday, 25 October. Under the same agenda item, a draft decision on biodiversity and poverty eradication (UNEP/CBD/COP/10/WG.2/CRP.5) was reviewed and adopted on Monday, 25 October. In closing plenary, delegates approved the decisions removing brackets around "subject to financial resources" where they existed.
Discussions focused on financial resources, with some developed countries noting that priorities should be determined according to available resources, whereas developing countries warned that financial resource considerations should not limit necessary steps for CBD implementation. Regarding the draft decision on the GBO, Mexico, Brazil, Ecuador, India and Malaysia supported including a provision on liaising with the Intergovernmental Platform on Biodiversity and Ecosystem Services (IPBES) to achieve full synergy with the CBD.
Final Decisions: In the decision on implementation of the Convention and the Strategic Plan (UNEP/CBD/COP/10/L.24), the COP emphasizes the need for increased support to parties to strengthen capacity to implement the CBD objectives in line with the Strategic Plan and its Strategy for Resource Mobilization, including through updating national biodiversity strategies and action plans (NBSAPs) as effective instruments to promote implementation of the strategic plan and mainstreaming biodiversity and regional and subregional cooperation. Calling for financial support, the COP invites parties to: establish mechanisms at all levels to foster full and effective participation of ILCs and all stakeholders in the full implementation of the CBD, the strategic plan and the biodiversity targets; and involve NFPs of all biodiversity-related conventions in the process of updating NBSAPs. It further requests the Secretariat to: subject to availability of funds, and in collaboration with parties and international organizations, facilitate support to countries for capacity-building initiatives, including workshops on updating NBSAPs and mainstreaming biodiversity; prepare a further in-depth analysis of the main reasons why the 2010 biodiversity target has not been met; continue to develop guidance on integrating biodiversity into relevant sectors and cross-sectoral policies, plans and programmes; and collaborate with the biodiversity-related conventions to facilitate the participation of NFPs in the updating of NBSAPs.
In the decision on integration of biodiversity into poverty eradication strategies (UNEP/CBD/COP/10/L.16), the COP welcomes increased efforts to mainstream biodiversity and the initiative of developing countries to develop a MYPOW on South-South cooperation, and invites developed country parties, governments, donors and the GEF to provide financial and technical support for mainstreaming biodiversity into poverty eradication and development processes. Noting the draft provisional framework for capacity building and mainstreaming biodiversity and ecosystem services for sustainable development and poverty eradication forwarded by WGRI 3, the COP decides to establish an expert group on biodiversity for poverty eradication with the terms of reference (ToRs) attached to the decision and requests the Secretariat to: convene a meeting of the expert group; prepare documentation for the meeting; and, taking into account its outcomes, continue and improve related activities listed in the decision.
In the decision on GBO 3 (UNEP/CBD/COP/10/L.9), the COP notes the GBO 3 conclusions that: the 2010 biodiversity target has not been fully met; limited capacities and financial and technical resources were an obstacle in that regard; most future scenarios project continuing high levels of extinction and loss of habitats; and there are greater opportunities to address the biodiversity crisis through well-targeted policies focusing on critical areas, species and ecosystem services. It then notes that a strategy for reducing biodiversity loss requires action at multiple levels; and the need to place greater emphasis on restoration of degraded ecosystems. The COP urges parties to take urgent action to implement COP decisions and the actions identified in GBO 3 to curb the continuing loss of biodiversity; and requests the Secretariat to: collaborate with relevant organizations to enhance evaluation of the post 2010 targets drawing on the GBO-3 conclusions; commission a review of the production of GBO 3; further develop a communication strategy for GBO 3; promote dissemination of GBO 3 and hold workshops; and liaise with IPBES to achieve full synergy between the two processes.
REVISED STRATEGIC PLAN, BIODIVERSITY TARGET AND INDICATORS: The issue was first discussed in WG II on Monday, 18 October, and then in a contact group co-chaired by Asghar Fazel (Iran) and Finn Katerås (Norway). On Monday, 25 October, WG II adopted draft decisions on the UN Decade on Biodiversity (UNEP/CBD/COP/10/WG.2/CRP.10) and on outcome-oriented goals and targets (UNEP/CBD/COP/10/WG.2/CRP.15).
Discussions regarding the revised strategic plan focused on the mission and headline targets that still contained brackets. Initially there were two options for the mission: New Zealand, Iceland and Thailand supported the first option to take action towards halting the loss of biodiversity and, by 2020, to have reduced the pressures on biodiversity and restored ecosystems and ecosystem services. The African Group supported the second option to take action to halt biodiversity loss by 2020 provided sufficient funding is made available. Norway and the CBD Alliance said the mission should be to halt biodiversity loss by 2020. The European Union (EU) said the strategic plan is an effective and flexible framework that could enhance international governance among conventions. A number of developing countries stressed the connection between the revised strategic plan and the Strategy for Resource Mobilization, and called for mobilizing sufficient financial resources for implementing the strategic plan. Delegates debated a third compromise proposal, prepared by a small group, on taking action to halt biodiversity loss to ensure functional and resilient ecosystems. Delegates agreed to reference science, poverty alleviation, effective policy measures and mainstreaming biodiversity, while references to financial resources remained in brackets. Delegates identified contentious references, including on minimizing the negative social and economic impacts of biodiversity loss.
The contact group discussed: strategic plan implementation; monitoring, review and evaluation; and the mission and headline targets. On support mechanisms, developing countries proposed, and some developed countries opposed, including language regarding the Strategy for Resource Mobilization and the provision of adequate, predictable and timely new and additional resources for the strategic plan's implementation. Regarding the draft decision, delegates debated whether to: request or invite the GEF to provide support in a expeditious manner for revising eligible parties' NBSAPs in line with the strategic plan; include references to ILCs and UNDRIP; request the Secretariat to further develop the technical rationale and suggested milestones for the targets, to be considered by SBSTTA and WGRI 4; and link the strategic plan with IPBES and the Millennium Development Goals.
Regarding the target on the values of biodiversity to be integrated into national and local development and poverty reduction strategies and planning processes, some developed countries supported integration of biodiversity values into "national accounts." Many developing countries were cautious about such a reference and finally agreed to refer to "national accounting and/or reporting systems."
Regarding the target on incentives, all countries agreed to references to positive incentives. While developing and many developed countries favored strong reference to elimination of subsidies, some developed countries registered opposition. Finally, delegates agreed to state that by 2020, at the latest, incentives, including subsidies, harmful to biodiversity are eliminated, phased out or reformed. Regarding reference to consistency with international obligations, delegates debated two options on consistency with CBD Article 22 (Relationship with Other Conventions); and on consistency with other relevant international obligations. Delegates finally agreed to state "consistent and in harmony with the Convention and other relevant international obligations."
Regarding the target on safeguarding ecosystems that provide ecosystem services, most delegates agreed to delete references to equitable access to ecosystem services in accordance with national legislation, as long as a specific reference to water was maintained.
Starting on Wednesday, 27 October, WG II discussed a draft decision (UNEP/CBD/COP/10/WG.2/CRP.26), considering the one remaining bracketed provision on adequate financial resources for implementation. The EU, supported by Switzerland, requested keeping the provision bracketed, pending discussions on financial issues. The African Group, China and several developing countries asked to remove the brackets, with Mexico and Brazil pointing out that the proposed wording was the same in previous COP decisions. Liberia stated that without an agreement on financing, there was no need to discuss the strategic plan. South Africa and Mexico stressed that discussions on the strategic plan should inform discussions on resource mobilization and financial resources, and not vice versa. The EU pointed out that the level of available resources should determine priorities for the strategic plan, and that the provision should be left pending. Delegates finally agreed to remove reference to the GEF and lift the brackets from the paragraph. The EU proposed, and delegates agreed to, an additional provision requesting the GEF to provide adequate, timely and predictable financial support to eligible countries to enable the strategic plan implementation. The International Indigenous Forum on Biodiversity (IIFB), supported by Paraguay and Gabon, requested inviting parties to take note of UNDRIP in implementing the strategic plan, with New Zealand adding "as appropriate and in accordance with national legislation," to which delegates agreed.
Delegates then discussed the annexed revised strategic plan. Canada, supported by Brazil, proposed specifying that the strategic plan constitutes a "flexible" framework. Regarding the mission, the EU, with Australia, the Pacific Islands, Switzerland and Norway, called for a strong political message supporting the option "to halt by 2020" biodiversity loss. Brazil, China, the African Group, Ecuador, India and others supported the option "towards halting" the loss of biodiversity by 2020. While supporting the latter, Malaysia and Mexico indicated flexibility to consider "to halt" without including a deadline.
Brazil, supported by the African Group and Switzerland, proposed compromise language that: by 2020 the rate of loss of all natural habitats, including forests, is at least halved and, where feasible, brought close to zero, and degradation and fragmentation is significantly reduced. The EU stressed the need to highlight forests, opposed by the Pacific Islands, Malaysia, Colombia and South Africa.
Regarding the target on TK, the IIFB proposed that, by 2020, the TK, innovations and practices of ILCs relevant for conservation and sustainable use of biodiversity and traditional and customary uses of biological resources are respected and fully integrated in CBD implementation, with the full and effective participation of ILCs. New Zealand, Canada, the EU, Norway, Mexico, Malaysia, Japan, the Philippines and Ecuador supported the proposal. India, supported by Guatemala and the African Group, requested a reference that TK be protected through "sui generis and other systems," but delegates finally agreed to reference national legislation and relevant international obligations instead.
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