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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

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Outline

The state of negotiations on ABS for COP9 of the CBDSusanne Friedrich, BfN(Federal Agency for Nature Conservation)International Workshopon Access to Genetic Resources, Traditional Knowledge and Benefit Sharing15 and 16 February 2008 in Bremen/Germany


Outline

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

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

EU preparations since CBD COP8

  • Since CBD COP8 regularly expert meetings in Brussel

    to develop options for a future EU position.

  • Council decides the political direction and concludes EU position.

  • February 2007: die EU transfers to its negotiation partners

    interim opinions to focus on the further work

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

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

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

    for environment decides preliminary EU priorities for CBD COP9.

  • October 2007 and January 2008: two international meetings

    (ABS WG5 und ABS WG6)

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

    international ABS regime at CBD COP9.


Core elements of the 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 position1

Core elements of the EU position

  • Interests of providers:

    Legal certainty, transparency of applications, litigation case

    assistance, 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 position2

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

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

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

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 abs1

Ad hoc WG5 and WG6 on ABS

  • Item: Fair and equitable sharing of benefits

  • To be further elaborated:

  • non-monetary and monetary benefitson mutually agreed terms

  • Access to and transfer of technology

  • Further consideration:

  • Development of international minimum conditions

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

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


Ad hoc wg5 and wg6 on abs2

Ad hoc WG5 and WG6 on ABS

  • Item: Access to genetic resources

    The 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 abs3

Ad hoc WG5 and WG6 on ABS

  • Item: Access to genetic resources

  • To be further elaborated:

  • Legal certainty, clarity and transparency of access rules

  • Recognition of the sovereign rights of Parties to determine access

  • Further consideration:

  • 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…)

  • Non-discrimination of access rules

  • Simplified access rules for non-commercial research


Ad hoc wg5 and wg6 on abs4

Ad hoc WG5 and WG6 on ABS

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

  • To be further elaborated:

  • Development of tools to encourage compliance (Awareness raising activities)

  • Development of tools to enforce compliance

  • Further consideration:

  • A binding international requirement to disclose the origin or source of GR and associated TK in patent applications (WIPO: primary international forum)

  • An international definition of misappropriation


Ad hoc wg5 and wg6 on abs5

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 abs6

Ad hoc WG5 and WG6 on ABS

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

  • Further consideration:

  • A binding international requirement to disclose the origin or source of GR and associated TK in patent applications (WIPO: primary international forum)

  • An international definition of misappropriation

  • Sectoral menus of model clauses for MTAs

  • Codes of conduct for important groups of users

  • Unilateral declarations by users

  • Engaging with public research funding

    agenies

User

measures


Ad hoc wg5 and wg6 on abs7

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 compliance

  • Assessment of national access framework by an

    international mechanism set up under ABS regime


  • Link between access and additional measures

    Link between Access and additional measures

    Specific international

    obligations to

    support compliance

    International

    Access Standards

    IF..THEN

    Optional

    assessment

    of natl access

    framework

    Provider Country:

    National Access

    Framework

    User Country:

    Domestic measures

    to support compliance

    Source: EU submission 28 Nov 2007


    Ad hoc wg5 and wg6 on abs8

    Ad hoc WG5 and WG6 on ABS

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

    • Further consideration:

    • Certificate of compliance with national access rules

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


    Ad hoc wg5 and wg6 on abs9

    Ad hoc WG5 and WG6 on ABS

    • Item: Traditional Knowledge and Genetic Resources

    • EU list of issues:

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

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

    • Ways to incorporate TK in PIC decisions?


    Ad hoc wg5 and wg6 on abs10

    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 abs11

    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 abs12

    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


    Resum

    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

    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


    Outline

    THANK YOU !

    • www.bfn.de

    • www.abs.biodiv-chm.de

    • http://www.bfn.de/0304_veroe.html#c22551

      (ABS-scripts)


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