Daily report for 29 June 1994

PLENARY

The Plenary considered agenda item 4.1.1, Rules of Procedure andthe periodicity of the meetings of the COP. The Chair stated thatfour of the five previously unresolved issues had been settledfollowing his informal consultations with the regional groups.Several delegations registered their reservations as some werestill awaiting instructions from their Capitals while others wantedto consult as regional groups. The Plenary was adjourned to allowfor consultations. The informally agreed texts are:

Rule 6 (1): the bracketed text was to be deleted andreplaced by a footnote stating, "The notification will include alsoany institutional structure referred to in Article 21 of the CBD,"so as not to prejudge the structure. Malaysia reserved its positionuntil the legal status of this footnote was clear, while the UKpreferred to say, "the institutional structure...." Rule 21was to be amended to allow for eight Vice-chairs, two from eachregion, instead of three Vice-Chairs, with the addition of,"...with equitable geographical distribution, as well as, the needto ensure adequate representation of the Small Island Developingcountries," in the last sentence.

Rule 40 provides for decision-making by consensus. Japanwithdrew its recommendation to exclude the two-thirds majorityrequirement, for decisions made under Article 21 (1), 21 (2) andthe protocol referred to in Article 19, in the absence ofconsensus. However, no agreement was reached on how decisions onthese two issues would be reached, as other issues relating tothese sections are under discussion.

Rule 52 now states that "the official and working languagesof the CBD shall be those of the UN." Some delegations still wantedthese languages stipulated. Mauritius stated that the last twosentences of Rule 35, on voting, were contradictory. Spain,Switzerland, Chile, France, and the Russian Federation concurred.The last sentence, was amended to: "Nevertheless, the President mayexceptionally permit the discussion and consideration of proposals,amendments to proposals or of procedural motions even though theseproposals, amendments or motions have not been circulated or havebeen circulated only the same day or have not been translated intoall the official languages, with the authorization of thelinguistic groups concerned, of the Conference of the Parties."

WORKING GROUP I

The Group continued its examination of the draft report onbiosafety as contained in document UNEP/CBD/IC/2/WG.I/CRP.4. Theythen held preliminary discussions of the two remaining issues:ownership of, and access to, ex situ genetic resources; andfarmers rights.

BIOSAFETY

Paragraph 8 regarding the joint work on developinginternational technical guidelines by the UK and the Netherlandswas amended by the Netherlands: "A number of representativesconsidered that a voluntary, flexible framework provided by thesekind of guidelines should now be developed within the context ofthe Convention." Mexico, supported by Chile, sought a clarificationas this implied prior, voluntary acceptance before the COP. Braziland India stated their preference for retaining "guidelines." Theparagraph was accepted on the understanding that these guidelinesare flexible and voluntary. Paragraph 9 regarding thenegotiated draft of the FAO International Code of Conduct on PlantBiotechnology was amended by Canada to add that the biosafetycomponent of the draft Code of Conduct constitute an input into theCOP. The Philippines expressed concern that Paragraph 10, onNGO statements, was inadequate as specific examples of transgenictesting in developing countries had been left out. The Third WorldNetwork (TWN) on behalf of the other NGOs recommended adding: "Theystressed the urgent need for a protocol because of the seriousrisks posed by the transboundary nature of the export of LMOs andthe fact that northern companies had already started carrying outhazardous genetic engineering experiments in the South. They alsoasked that the serious destabilizing socio-economic aspects ofbiosafety form part of such a protocol." Canada wanted "the factthat" to be replaced by "in the opinion of." While stressing thatsuch tests had been carried out, the TWN suggested using "andexamples were given," which was accepted.

Paragraph 4 Germany, Chair of the contact drafting grouppreparing text, added the following to the paragraph: "Asignificant number of delegations expressed support for theimmediate work on a protocol while others expressed support thatthe COP should establish a step-by-step process to consider theneed for, and modalities of, a protocol." India, speaking on behalfof G-77 and China, proposed adding the following: "The G-77 andChina were of the unanimous view to immediately work on a protocolon biosafety, while some others expressed support that the COPshould establish a step-by step process to consider the need for,and modalities of, a protocol." This proposal led to a heateddebate over whether it could and should be added.

Germany stated that it was not appropriate that text agreed on byconsensus in the drafting group be reopened. Brazil, India,Morocco, Kenya and others stated that there was a larger group towhich the drafting group was accountable, and indicated support forthe G-77 and China. The US, supported by France, stated that therehad been a consensus on the text in the drafting group and that thesuggestion of including a new text was an attempt to rewrite thehistory of what had been discussed. France sought a clarificationfrom the Rapporteur who noted that he did not hear such a statementfrom the G-77 and China. The East European group indicated supportfor the G-77 position. Philippines stated that the Group might wantto reflect the decision by the G-77 and China, as taken subsequentto the Group's discussion of the issue. Brazil pointed out thatthe issue was still under discussion. US noted that the phrase,`subsequent to the discussion on the issue, the G-77...," could beadded. Mexico recommended giving a precise description of what hadhappened. Germany, on behalf of the EC stated that it was not inagreement with India's proposal. The Russian Federation said thatit supported a step-by-step approach. The disagreement was whetherthe opinion presented by the G-77 and China should be included ornot. The EC, US, Japan and Canada stated that such an inclusion wasnot made at the time of discussion nor at the drafting workinggroup while the G-77 and China stated that they had met at theearliest time convenient and adopted this position. Indiarecommended adding the following phrase, "In reaction to theproposal, the G-77 and China..." The paragraph was accepted.

OWNERSHIP OF AND ACCESS TO GENETIC RESOURCES AND FARMERSRIGHTS

The Chair noted that the issue of ownership, and access to, exsitu genetic resources is not provided for in the CBD. Hence,the Interim Secretariat had invited the FAO to prepare a backgroundpaper in the context of Resolution 3 of the Nairobi Final Act. Asthe COP is not required to deal with the issue at its firstmeeting, the Committee should begin to identify possible areas ofinterest for future work, such as, examining the legal status of:national ex situ plant collections; future ex situcollection centers; and the current status of ex situcenters of plant, animal or other organisms. India stated that ascustodians of domestic plant and animal diversity, farmers need alegally binding regime that would recognize their rights asinviolable and that cannot be nullified in international legalinstruments. As the Convention does not provide for existing exsitu genetic resources, Japan did not believe that the FAO'sinternational undertaking on genetic resources could become a legalinstrument under the CBD. Norway recognized the importance ofresolving the issue of access to, and ownership of, ex situresources in a legally binding document, perhaps a protocol. Kenyaproposed: the strengthening of regional gene banks to be fundedunder the CBD; repatriation of gene duplicates to their countriesof origin; sharing in the commercial and technological benefitswith the gene resource's country of origin; and a binding document.

Malaysia noted that the ex situ collections were contributedby developing countries on the understanding that they would befreely accessible. Greece, on behalf of the EU, said that the COPshould provide guidance for the conservation, characterization,collection and utilization of genetic resources in the CBD. Shestated that germplasm collections have to respect existing propertyrights and laws. The FAO gave a brief history of the organizationand noted that the ex situ gene banks established before theentry into force of the CBD are being brought into harmony with theCBD. Brazil, on behalf of the G-77 and China, said that anymultilateral agreement should consider the ex situcollections that existed before the entry into force of the CBD,and that there should be a mandatory sharing of benefits from theseresources with the countries of origin. Chile noted the need toestablish a network that would put together an intergovernmentalgene bank. Indonesia said that her country had attainedagricultural food self-sufficiency in rice in 1984, thanks to thegene banks, hence their importance. Australia noted the need toensure some cooperation between the COP and the FAO, even if itwere only information sharing, as well as, the need for the COP toconsider the involvement of the SBSTTA in the technical aspects ofmicrobial collections. The Netherlands highlighted the need for theCOP to give attention to the genetic resources of domestic animals,fish and forestry. Nigeria proposed the establishment of amechanism to ensure sharing of benefits. Malawi noted that contraryto belief, international law can be made retroactive wherecountries commit such great crimes. Mexico disagreed on therepatriation of duplicates of genetic resources to their countriesof origin, since the farmers and indigenous communities in thosecountries, who are the rightful owners, would still not benefit.Third World Network, noted that contrary to initial expectations,the freely donated genetic resources areof least benefit to theSouth.

FARMERS' RIGHTS:The Chair summarized the evening's debate bynoting that: all delegates expressed support for rights ofindigenous peoples to be recognized; some suggested new approachesto compensate farmers for conservation and sustainable use ofbiodiversity; incentives should be given to local communities andindigenous communities; intellectual property rights may constitutea basis for the fair and equitable sharing of benefits; the issueof ex situ collections and intellectual property rightsshould be on the agenda for the COP; the COP should initiate astudy on how to implement Article 8(j); the work underway in FAO onthe subject should be taken into account and not duplicated; andthat NGOs expressed the wish to see elected representatives ofindigenous people at the COP. Colombia reminded the group of thearguments for a legally binding protocol on this issue andGreenpeace noted several speakers' call for a study on the impactof intellectual property rights on the objectives of theConvention, particularly the ambiguities of Article 16(f).

STATUS REPORT OF INTERIM SECRETARIAT

Debate on this item could not be finished due to the late hour.

WORKING GROUP II

The Chair, Amb. Koester, introduced the four items that wereaddressed by the Group: the list of developing countries; thereport of the Chair of Contact Group I on outstanding issues; thefinancial rules governing the funding of the Secretariat concerningthe budget; and, the continuation of discussion of the draft reportof Working Group II.

LIST OF DEVELOPED COUNTRIES: The list of developedcountries, accepted in principle on Tuesday, had been formalizedinto document UNEP/CBD/IC/2/WG.II/L.4 and was adopted withoutamendment.

REPORT OF CONTACT GROUP I

The Chair, Mr. Uppenbrink, reported on the one outstanding matterfrom the Group. He recalled that his Contact Group had addressedtwo issues: the financial rules of the trust fund, that wereadopted Tuesday; and, the budgetary matters that had now produceda draft text. He explained that it was not the mandate, and becauseof the uncertainty surrounding the Secretariat's location and itstasks, it was not within the scope of the Contact Group, to developa budget. Rather, the document is intended to provide guidance tothe Secretariat in developing its budget. The document identifiesindicative budget components and requests the Interim Secretariatto prepare a detailed draft budget for distribution before thefirst COP.

FINANCIAL RULES-BUDGET: The Financial Rules Governing theFunding of the Secretariat of the CBD-Budgetary matters(UNEP/CBD.IC/2/WG.II.L.3) was adopted in principle withoutdiscussion, following Mr. Uppenbrink's report. Editorial changeswill be made before it is formally adopted.

DRAFT REPORT OF WORKING GROUP II

The Working Group began their consideration of the second item ofthe draft report of the Group: agenda item 4.1.5, the policy,strategy, programme priorities and eligibility criteria regardingaccess to and utilization of financial resources. The textdeveloped after discussion in both the Working Group and ContactGroup on this item is focused on programme priorities. As aconsequence, the only record of discussion about the other issueswill be this draft report. The Chair noted that theparagraph-by-paragraph adoption is extremely slow.

THINGS TO LOOK FOR

PLENARY: The 10:30 am meeting will consider item 4.1.1,rules of procedures and the periodicity of meetings of the COP.

WORKING GROUP I: The Group will meet to consider its finalreport to Plenary. An informal group may meet to give guidance tothe Secretariat on its continuing activities.

WORKING GROUP II: The Group will meet at the conclusion ofthis morning's plenary and again in the afternoon. It will continueits consideration of the draft report of Working Group II, agendaitem 4.1.5.