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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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slide1

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
slide26

THANK YOU !

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

(ABS-scripts)

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