PEOPLE'S RIGHTS TO BIODIVERSITY DISCUSSED IN CBD

December 1995

PEOPLE'S RIGHTS TO BIODIVERSITY DISCUSSED IN CBD

The Conference of Parties faced an enormous amount of work. Among important negotiations on a biosafety protocol and on marine and terrestrial biodiversity, and the usual "housekeeping" discussions on funding and Secretariat housing, this time it also had to deal with the concerns of people organisations. More than thirty indigenous peoples representatives, together with some farmer organisations and NGOs, formed the Coalition Against Biopiracy (CAB) which made its voice clearly heard. Discussions on access to genetic resources and intellectual property rights had been heating up for some time amongst NGOs, since both concepts are central to the biotechnology industry's plans to privatise the world's biological resources. The CAB's BioTalk newsletter, whose colourful pages could be seen being widely read both inside and outside the meeting hall, clearly voiced these concerns.

Many of the issues articulated by the CAB were echoed by delegates. Several government delegations declared that human genetic resources should not be considered within the scope of CBD, despite the fact that human genes are already being patented and commodified. Some South Pacific governments, alarmed by the fact that the cell lines of a Papau New Guinean Hagahai tribe member had been patented by the US government, requested that the International Court of Justice be consulted on the patentability of human genetic material. The final conference report requests the Secretariat to prepare a study on the impact of IPR systems on the conservation and sustainable use of biodiversity and the equitable sharing of benefits derived from genetic resources. The Secretariat was also requested to "liaise" with the WTO on the implementation of the TRIPS Agreement in GATT — language which came as quite a deception, since the wording in the final document doesn't really reflect that some delegates had requested that the CBD "assert its supremacy over the WTO in matters pertaining to biodiversity."

During the plenary discussion on access to genetic resources and intellectual property rights, the Indigenous People' Biodiversity Network (IPBN) read a strong statement — applauded by many government and NGO delegates — calling for a moratorium on the collection of biological material, stating their opposition to patents on all life forms, and demanding rights to control over resources and knowledge (see Box). In the light of all the discussions on prior informed consent, material transfer agreements, etc, it was made clear that before negotiating access, indigenous and local communities demand to talk about rights over their resources and knowledge.

Many governments made declarations on the need to develop mechanisms to recognise the rights of indigenous and local communities: instruments that go beyond those that simply aim to guarantee access. Some countries stressed that Community Rights need separate treatment from Northern- style Intellectual Property Rights (IPRs). This issue will be on the agenda of COP3, within the discussion on the implementation of article 8(j) of the Convention on the rights of local and indigenous communities. As a practical and welcome step, Canada offered to cover the costs of having a permanent representative for indigenous peoples in the CBD Secretariat. Dr. Calestous Juma, the new Executive Secretary of the Convention Secretariat, immediately embraced the idea and met with NGOs to discuss ways to move the proposal ahead. It remains to be seen whether this move entails real empowerment, since, as the Coalition Against Biopiracy made clear in one of its statements, "consultation among unequal partners is not consultation".

Towards the end of the discussions the United States government desperately complained that most delegations had placed more emphasis on limiting access than on facilitating it. Indeed, those countries that had hoped for a quick deal guaranteeing free access, were in for a disappointment. As NGOs argued, access is not only a matter of someone in the national capital giving the green light for a biodiversity collecting mission. Local communities holding and nurturing that biodiversity should have a clear say in the matter as well, which can only be facilitated by putting the discussion on "rights" up front. This was the clear message from civil society to the negotiators at COP-2, and it seems that some took notice. At least the stage has been set, and the next COP will continue the discussion on possible options for implementing access at the national level, and keep a watchful eye on IPR developments while alternative Community Rights are discussed.

A protocol on agricultural biodiversity?

Once again the outstanding issues concerning plant genetic resources included in Resolution 3 of the Nairobi Final Act for the adoption of the CBD came up for discussion. These related to access to ex-situ collections acquired prior to the CBD, and the question of farmers' rights. In that context, the ongoing processes within FAO to harmonise the Global System for Food and Agriculture with the CBD were well received by the COP.

The final report calls on the FAO to present the outcome of the June 1996 Fourth International Conference on Plant Genetic Resources (ITC4) to the COP3, particularly the State of the World Report and the Global Plan of Action for Plant Genetic Resources for Food and Agriculture. It was also decided that the President of the COP should address the ITC4, calling for complementarity between FAO and the CBD in the area of genetic resources for food and agriculture, and recognising the plant genetic resources for food and agriculture are critical components of biological diversity. The CBD statement to be presented at Leipzig also compliments the FAO Secretariat on the participatory preparatory process underway for the ITC4, built up from national, regional and subregional meetings.

The COP also declared its support for the ongoing renegotiation of the International Undertaking within the Commission on Plant Genetic Resources (which, according to a recent FAO decision, will become the Commission on Genetic Resources for Food and Agriculture). The renegotiations aim to bring key areas of the Undertaking in harmony with the CBD.

In the usual corridor talks many delegates expressed concern at FAO's poor record as a promoter of sustainability; nevertheless, government support was strong for the establishment of a protocol to the CBD for genetic resources for food and agriculture. Such a protocol would tie together FAO's Global Plan of Action and the revised Undertaking, and place the whole global system on genetic resources for food and agriculture under the authority of the CBD. Many feel that the backing for that solution can be explained by trust on the work done by FAO's Commission on Plant Genetic Resources since its creation in the early 80's, and the strong wish to bring all major biodiversity issues within the context of one strong international agreement.

Biosafety and ecosystem management

In what was hailed as "a major victory for Third World countries" by the Third World Network, work will finally start on the development of a protocol on biosafety for the "safe transfer, handling and use of genetically modified organism (GMOs)". Due to strong pressure from developed countries — especially the US, even though it still is not a Party to the Convention — the working group that was set up will initially limit the scope of a future protocol to transboundary movements. The reality is that most developing countries want a protocol that also sets minimum national biosafety standards and takes socio-economic aspects into consideration, including civil and criminal responsibility in case of damage resulting from the handling of GMOs. Work on the draft should finished by 1998, with an interim review at COP3.

Decisions were also taken by the COP to go ahead with work on specific components of biodiversity, taking the ecosystem approach as the framework for action. On the issue of forest biodiversity, the Secretariat was requested to link up with work going on within the Intergovernmental Panel on Forests of the Commission on Sustainable Development. On the conservation and sustainable use of marine and coastal biodiversity, an expert group was created under the Subsidiary Body on Scientific, Technical and Technological Advice.

On the organisational side, the CBD seems to be on its way to some needed independence. The selection of Dr. Calestous Juma, who comes from a long time involvement in the struggle for equitable and sustainable genetic resources management, as the Executive Secretary has been well received. Montreal was chosen as the permanent secretariat location, which could create a welcome distance from the UNEP offices in Nairobi and Geneva. And although the World Bank linked Global Environmental Facility will continue at least for another year as the CBD financial mechanism, new sources of financing are also being explored. If the GEF remains as the permanent mechanism, steps are being taken to guarantee that it comes under COP mandate as much as possible.

For the time being, the Convention on Biological Diversity has gone from the preliminary negotiations to a more dynamic and meaningful stage. While transnational companies, most developed countries as well as some developing countries rich in genetic resources continue to see the CBD as merely a biodiversity trading bazaar, the impression after Jakarta is that the Convention seems to be moving towards a more comprehensive understanding on what should be done. Unlike many large United Nations events, the voices of people-led organisations were heard in Jakarta, and they were often joined by the voices of governments. Time will tell how real those concerns and commitments were, and there is an alert watch dog to keep watch. Indigenous peoples are taking up the challenge thrown at them by Dr. Juma to "stop knocking on the door, and instead come in, sit down and start talking". True sustainable conservation, use and benefit sharing of biological diversity will never come about without the real participation of those who have nourished it in the first place.

For the official final report: The Executive Secretariat, CBD, 15 Chemins des Anmones, Chatelaine, CH-1219 Geneva; fax (41-22) 797 25 12. Reports are also available from the Earth Negotiations Bulletin, published by the IISD: 161 Portage Ave., East Sixth Floor, Winnipeg, Manitoba RB OY4, Canada. The Bulletin is available on the Internet at http://www.iisd.ca/linkages/. Their email is: [email protected].