The state of negotiations on ABS for COP9 of the CBD Susanne Friedrich, BfN (Federal Agency for Nature Conservation) International Workshop on Access to Genetic Resources, Traditional Knowledge and Benefit Sharing 15 and 16 February 2008 in Bremen/Germany

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

International Context 2002 : World Summit on Sustainable Development 2004: 7. Conference of Parties of the CBD (CBD COP7) 2005/2006: Two ad-hoc working group meetings on ABS and CBD COP8 (3/2006) 10/2007, 1/2008: Two ABS WG meetings May 2008: CBD COP9 in Germany Spring 2010: CBD COP10 in Japan (tbc); closing date for negotiations on ABS

EU preparations since CBD COP8 May 2008: EU aims to identify the core elements of an international ABS regime at CBD COP9. October 2007 and January 2008: two international meetings (ABS WG5 und ABS WG6) 28. June 2007: Council meeting of the EU ministers for environment decides preliminary EU priorities for CBD COP9. March 2007: G8+5 meeting of the environmental ministers in Potsdam: international biodiversity policy (for the first time) February 2007: die EU transfers to its negotiation partners interim opinions to focus on the further work Council decides the political direction and concludes EU position. Since CBD COP8 regularly expert meetings in Brussel to develop options for a future EU position.

Core elements of the EU position Interests of users:  Facilitated access  Transparency  Legal certainty  Non-discrimination  Lower transaction costs  Minimisation of administrative burdens -> International minimum requirements for the content and implementation of international access rules

Core elements of the EU position Interests of providers: Legal certainty, transparency of applications, litigation 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 position Capacity building  ABS-capacity building activities already in place financed by MS and EC to implement the Bonn Guidelines and the Action Plan for Capacity-Building on Access to Genetic Resources and Benfit-Sharing  Support given to developing country delegates and NGO-observers, particularly by the Dutch-German ABS Capacity Development Initiative for Africa  Protection of Traditional Knowledge (TK)  Guidance to the CBD‘s Financial Mechanism (GEF)

Council Conclusions (28 June 2007) Essential: CBD COP9 will identify the main elements of the international ABS regime. With regard to the user sector: –Reiterates the EU its initative regarding the disclosure of origin or source of genetic resources and associated TK in patent applications to WIPO –Discussion should include consideration of an internationally recognised certificate of compliance with national access rules –Discussion could include work on an international definition of misappropriation (NEW) EU stresses, in parallel, the conformity of national access regimes to the CBD -> establishment of international minimum requirements on national access law and practice (NEW) Legal certainty and compliance with ABS requirements through sectoral work on standardising MTAs (NEW)

EU submission (28. November 2007) Addressing the link between access to genetic resources and additional measures to support compliance Developing international standards on national access law and practice Additional measures to support compliance with PIC and MAT

Ad hoc WG5 and WG6 on ABS Item: Fair and equitable sharing of benefits The international ABS regime:  Supportive environment for the successful establishment of MATs  Developing menus of model clauses for potential inclusion in Material Transfer Agreements  Enhancing transparency

Ad hoc WG5 and WG6 on ABS Item: Fair and equitable sharing of benefits To be further elaborated: 1.non-monetary and monetary benefits on mutually agreed terms 2.Access to and transfer of technology Further consideration: 1.Development of international minimum conditions 2.Menus of model clauses for potential inclusion in MTAs could enhance legal certainty and compliance with ABS requirements 3.Should be developed through sectoral processes in a bottom-up way with the involvement of stakeholders

Ad hoc WG5 and WG6 on ABS Item: Access to genetic 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 ABS Item: Access to genetic resources To be further elaborated: 1.Legal certainty, clarity and transparency of access rules 2.Recognition of the sovereign rights of Parties to determine access Further consideration: 1.International standards on national access law and practice -> reference point for enforcement measures in user countries (e.g. model legislation, technical protocols; specific rules on PIC requirements; up-to- date information on national provisions…) 2.Non-discrimination of access rules 3.Simplified access rules for non-commercial research

Ad hoc WG5 and WG6 on ABS Item: Compliance; Additional measures to support compliance with PIC and MAT To be further elaborated: 1.Development of tools to encourage compliance (Awareness raising activities) 2.Development of tools to enforce compliance Further consideration: 1.A binding international requirement to disclose the origin or source of GR and associated TK in patent applications (WIPO: primary international forum) 2.An international definition of misappropriation

Ad hoc WG5 and WG6 on ABS An international definition of misappropriation:  Acquisition of a genetic resource in circumvention of national PIC requirements that meet international access standards  Acquisition of a genetic resource without setting up MAT

Ad hoc WG5 and WG6 on ABS Item: Compliance; Additional measures to support compliance with PIC and MAT Further consideration: 1.A binding international requirement to disclose the origin or source of GR and associated TK in patent applications (WIPO: primary international forum) 2.An international definition of misappropriation 3.Sectoral menus of model clauses for MTAs 4.Codes of conduct for important groups of users 5.Unilateral declarations by users 6.Engaging with public research funding agenies User measures

Ad hoc WG5 and WG6 on ABS The link between access to genetic resources and additional measures to support compliance - Uncertainty about and broad variety of what exactly is to be enforced in countries with users under their jurisdiction  additional, more specific international obligations of all Parties to support compliance  Assessment of national access framework by an international mechanism set up under ABS regime

Link between Access and additional measures Source: EU submission 28 Nov 2007 International Access Standards Optional assessment of natl access framework Provider Country: National Access Framework User Country: Domestic measures to support compliance Specific international obligations to support compliance IF..THEN

Ad hoc WG5 and WG6 on ABS Item: Compliance; Internationally recognised certificate of origin/source/legal provenance Further consideration: 1.Certificate of compliance with national access rules 2.Concept of „checkpoints“ developed in the TEG report (incentives for users, system of certificates, reference points?)

Ad hoc WG5 and WG6 on ABS Item: Traditional Knowledge and Genetic Resources EU list of issues: 1.How could the scope of an internationally recognised certificate of compliance include TK associated with GR? 2.How could the draft ethical code of conduct contribute to the effective implementation of the CBDs ABS related obligtions? 3.Ways to incorporate TK in PIC decisions?

Ad hoc WG5 and WG6 on ABS Item: Nature, scope and objectives of the international regime Annex to Decision VII/19 D: The ABS regime « could be composed of one or more instruments within a set of principles, norms, rules and decision-making procedures, legally binding and/or non- binding. »

Ad hoc WG5 and WG6 on ABS Item: Nature of the international regime But: The proposals were neither discussed, negotiated nor agreed  No fixed view on the nature of the international ABS regime  No pre-judgement whether the regime will be composed of one or more international instruments  No pre-judgement of the procedure (simple COP Decision, COP Decision to amend Convention, COP Decision to adopt an additional annex or protocol)

Ad hoc WG5 and WG6 on ABS Item: Scope of the international regime Derivates  What are typical forms of derivates or products?  Where is the utilisation of a GR typically considered to end? derivates or products should remain outside the scope of international obligations of states

Resumé EU as mediator Problematic issues:  Menus of model clauses for MTAs  International access standards for national access legislation  Requirement to disclose the origin or source of GR  Definition of misappropriation  Certificate of compliance  Concept of checkpoints  Derivates „Over-regulation“?

Activities of the Federal Agency for Nature Conservation Research & Development Plan (F&E):  menus of model clauses for potential inclusion in MATs ( for 3 sectors) Integration of the user sector:  Study:“Users of Genetic Resources in Germany“  Workshops for users (e.g. certificate of origin)  Support of positive user processes (IPEN/DFG)  Support of projects (INBIO, pro benefit)  National ABS website (  Support of the implementation of the National Biodiversity Strategy (7 November 2007) Influencing the international negotiation process

THANK YOU ! (ABS-scripts)