Closing Plenary Statement by Third World Network on behalf of

Civil Society Organizations

ABSWG-8, Montreal - 15 November 2009

 

Thank you, Co-Chairs.  I speak on behalf of the Civil Society Organisations present at this meeting.

We strongly reiterate our key positions on the fundamental aspects of the final outcome of the negotiations mandated to this Working Group.

On nature, we fully support a legally binding single instrument and look forward to Parties adopting a Nagoya Protocol on access and benefit sharing under the Convention on Biological Diversity.

Accordingly, the compliance component must be strong and effective for the Protocol to be meaningful. The minimum requirements include: (1) An internationally recognised certificate of legal compliance; (2) Checkpoints to effectively monitor compliance that could include patent offices, market approval institutions and research funding institutions; (3) Coverage of misuse and misappropriation; (4) Access to justice for Indigenous Peoples and Local Communities.

Compliance is at the heart of an effective and meaningful Protocol and this is confirmed by the fact that this component has the most brackets – so many that making sense of the concepts and ideas from the text defies linguistic logic.  We call on Parties to agree on compliance mechanisms that effectively stop both misappropriation and misuse.

Traditional knowledge and the rights of indigenous peoples and local communities are crosscutting issues that must be included in each component of the Protocol. We are therefore very concerned that some Parties continue to bracket essential text such as those on free and prior informed consent, and on customary laws and community protocols, that would ensure that traditional knowledge and the rights of indigenous peoples and local communities have their right place in the Protocol. We have confidence that all Parties will implement the UN Declaration on the Rights of Indigenous Peoples in the Protocol.  

From the very beginning of the CBD, developing countries and many civil society organisations and indigenous peoples’ organisations have pressed for international rules and regulations to ensure the effective implementation of the third objective of the CBD, precisely because of the shortcomings and flaws of a contract-based system.  Despite the challenges we also see that the Working Group can make significant progress.  Looking at the options in the text so far a basic choice awaits Parties – the Protocol can be a legal instrument to protect the weak and ensure justice and equity, or it can reinforce and legitimize biopiracy.  We hope that the Working Group will make the right choice.

With regard to the intersessional work we strongly support the call of Parties for balance and transparency. By balance we refer to the representation of developing countries and we concur with the concerns of the Africa Group on this matter.  We appreciate the opportunity for representatives of civil society organisations and indigenous peoples’ organisations to continue to participate in the intersessional process and thank the co-chairs and Parties for this.

We thank the Working Group for supporitng our proposal for a review paper on the history and evolution of the concept of “genetic resources” and we hope that this will contribute to a better understanding of the concept as it relates to traditional knowledge and the objectives and scope of the Protocol.

We are very encouraged and welcome the formation of the Like-minded Asia Pacific Countries and the Like-minded in spirit women in the CBD.

 

Civil Society Organizations - Statement on the Nature

ABSWG-8, Montreal, Canada - 9 Nov 2009

 Since the first session of the Working Group on ABS in 2001 in Bonn, the NGOs working in these ABS negotiations are deeply convinced that a meaningful and effective implementation of Art. 15 and 8j and other related articles of the CBD can only be reached through an international legally binding instrument. The Civil Society Organizations present at this meting continue to remind you that voluntary agreements, like the Bonn Guidelines, have failed to protect and enforce the rights of provider countries and the various providers, as well as to establish compliance mechanisms in user countries. This can only be achieved through a comprehensive International Regime on ABS that needs to be a Protocol to the CBD.

 We are also convinced that such a meaningful and effective system can only be build up if the ABS Protocol recognizes and supports the UN Declaration on the Rights of Indigenous Peoples, and specifically their - I quote - "right to maintain, control, protect and develop their ... traditional knowledge ... as well as the manifestations of their sciences, technologies and cultures, including ... genetic resources, seeds, medicines, knowledge of the properties of fauna and flora ... They also have the right to maintain, control, protect and develop their intellectual property over such ... traditional knowledge ...." - end of the quote.

 We call upon all CBD Member States to support a legally binding International Regime. We urge Parties of the CBD, that cannot at the present time envisage ratifying an ABS Protocol, to not block other countries in order to achieve a meaningful ABS Protocol.

 

Intervention by Natural Justice on behalf of Civil Society Organizations on Capacity Building

ABSWG-8, Montreal, Canada - 9 Nov 2009

Natural Justice speaks on behalf of the Civil Society Organizations present at this meeting.

Indigenous Peoples and Local Communities are the lynchpin of this Convention and are best placed to determine the merits of any intended access to their knowledge, innovations, practices or genetic resources, according to the principle of free, prior and informed consent. Thus, the success of the ABS regime is contingent on empowered communities, able to assert their rights to protect and manage their TK and natural resources according to their customary laws.

With this in mind, civil society organizations call for the international regime to be underwritten by a strong programme of participatory capacity building.

We would like to emphasize two key issues in this regard:

First, the needs assessments and programmes must be developed and driven by Indigenous Peoples and Local Communities in partnership and with financial and technical support from other agencies. We support the IIFB’s operational text addressing this issue.

Second, capacity development in the context of ABS implies a broad range of activities, including focus on diverse issues such as the development and articulation of sui generis systems, legal empowerment, community resource mapping, and negotiation and advocacy training. Additionally, exchanges between communities should be a crosscutting aspect of the future action plan.

In sum, we support the inclusion of a clear obligation for capacity building, which empowers Indigenous \Peoples and Local Communities to determine their own priorities.

 

Intervention by Ecoropa on behalf of Civil Society Organizations on Traditional Knowledge

ABSWG-8, Montreal, Canada - 9 Nov 2009

Ecoropa is speaking on behalf of the Civil Society Organizations present at this meeting.

We fully support the inclusion of Traditional Knowledge into all the relevant articles of the International Regime, especially Compliance, Benefit-Sharing, Access and Capacity-building.

We believe that Traditional Knowledge needs to be addressed at the international level in a legally binding Protocol on ABS, at the national level by national legislation and a national competent authority and at the level of indigenous peoples and local communities with Free, Prior, and Informed Consent and Mutually Agreed Terms fully respecting their customary laws. All three levels should base themselves firmly on existing international instruments and processes, particularly within the human rights area, including the UN Declaration on the Rights of Indigenous Peoples. 

 We point to the importance of addressing existing information and power asymmetries in the context of TK by including a legal aid body, such as an ombudsperson, into the operational text. And may we add that the office of such an ombudsperson should have the necessary funding and expertise, including translation facilities, to make it fully functional.

 We stress the importance of the distinction between “publicly available” and “public domain” in the context of Traditional Knowledge, and advocate the application of this distinction throughout the operational text.

 And lastly, we submit additional wording, for which we would need the support of a Party delegation and therefore have to read it out. We hope to find such support along the lines of the following text proposal:

 “The Working Group invites the Secretariat to initiate, in the context of TK and associated genetic resources a short review paper on the history of the concept of “genetic resources” as it emerged and keeps developing in the context of

 (i) ex-situ collections, such as gene banks and data bases

(ii) “bioeconomy”, i.e. the emerging competitive global market based on genetic resources

(iii) the rapid developments of modern biotechnology and biochemistry, including genomics, proteomics and synthetic biology  

and submit it to Parties for their consideration, as soon as possible but no later than WG ABS 9, in order to assist Parties to arrive at a better understanding of the concept of “genetic resources” as it relates to TK and to elaborate the International Regime on ABS with the inclusion of Traditional Knowledge based on an adequate concept and/or concepts. This short review should build on the Report of the AHTEG on Scope and Definitions and add the relevant TK-related aspects.”   

 

Civil Society Organizations - Statement on Access

ABSWG-8, Montreal, Canada - 10 Nov 2009

I speak on behalf of the Civil Society Organizations present at this meeting.

We would like to stress that we see the use of genetic resources and traditional knowledge as inseparable. The Hyderabad expert meeting has deliberated on these issues extensively and provided its useful report to this meeting. Therefore, we would like to support the respective statement made by the International Indigenous Forum on Biodiversity (IIFB).

 We are of the opinion that the ABS Protocol must deal with access to genetic resources and access to traditional knowledge associated with genetic resources on the same level. To establish such a comparable level of legal standing, we suggest that throughout the text, the wording should always read: "access to genetic resources or access to traditional knowledge associated to genetic resources".

 

Civil Society Organizations - Statement on Compliance

ABSWG-8, Montreal, Canada - 10 November 2009

I speak on behalf of the Civil Society Organizations present at this meeting.

As we have already pointed out, the International Regime on Access and Benefit Sharing has to be a legally binding protocol to the CBD. We are of the opinion that any legally binding agreement can only be implemented properly if it provides for a strong and effective compliance mechanism.

The compliance mechanism of the future ABS Protocol should, amongst others, consist of following elements:

1) A certificate of legal compliance: Such a certificate informs about the use allowed under the MAT and basically works as a "passport" which allows monitoring of the flow and use of genetic resources and traditional knowledge associated with genetic resources.

2) Checkpoints that control the "passport": Such checkpoints could be, amongst others, patent offices, market approval institutions, research funding institutions. With these checkpoints an effective system for monitoring and controlling can be established. Such a monitoring and control system will reduce the burden of the provider to seek justice only in the court system, as suggested by some Parties.

3) Coverage of misuse and misappropriation: A comprehensive compliance system has to cover both misuse and misappropriation; therefore, a contract-based system is incomplete.

4) Access to justice for Indigenous Peoples and Local Communities: A comprehensive compliance system has to guarantee access to justice for Indigenous Peoples and Local Communities; in this context we support the proposal of an ombudsperson.

5) Compliance of non-Parties: We are of the opinion that non-Parties have to comply with the same standards as Parties when the seek access to genetic resources and traditional knowledge associated with genetic resources.