The Negotiation Process

The actual negotiation process started with the third (2005, Bangkok, Thailand) and fourth (2006, Granada, Spain) meetings of the AHWG, where compilations of a draft text were produced as a basis for future negotiations. At the following CBD COP 8 (2006, Curitiba, Brazil), the AHWG was instructed to continue with the elaboration and negotiation of the international regime. Timothy Hodges from Canada and Fernando Casas from Colombia were appointed as Co-Chairs of the AHWG, and a group of technical experts was established to explore and elaborate on the idea of an internationally recognized certificate of origin, certificate of source, or certificate of legal provenance. Furthermore, the AHWG was asked to complete its work at the earliest possible time before COP 10.¹⁸ Setting a concrete deadline for the finalization of the negotiation process was of strategic importance for several reasons:

first, it provided the AHWG with a final goal towards which it was working; second, it increased the pressure on the Contracting Parties to move forward in their negotiations; and third, it was important as the Strategic Plan for the Convention on Biological Diversity (Strategic Plan 2002–2010) was expiring at this point in time.

17 Ibid., Annex.

At its fifth (2007, Montreal) and sixth (2008, Geneva, Switzerland) meetings, the AHWG focused on the main components of the international regime on ABS. During the Geneva meeting, a contact group was formed and made progress, thanks to a procedure that separated what delegates agreed should form part of the regime (so-called bricks) and elements that were still pending agreement (so-called bullets). This method helped reassure many delegates that their views were being taken into account, helped to build trust, and allowed the group to move forward with its overall mandate. While key issues like the nature of the regime and its scope were still pending agreement, the sixth meeting of the AHWG was considered an important step forward in the process. The result was a draft decision for CBD COP 9 and a short and concise working document on the international regime. The working document consisted of a compilation of proposals concerning the objective, scope, and nature of the regime, as well as lists of components on the issues of fair and equitable benefit-sharing, access to genetic resources, compliance, traditional knowledge associated with genetic resources, and capacity-building. The components under each item were subsequently split into two further categories: those

“to be further elaborated with the aim of incorporating them in the international regime” (the bricks, agreed in principle) and those calling “for further consideration” (the bullets, disagreed about or in need of further clarification).¹⁹

CBD COP 9 (2008, Bonn) instructed the AHWG “to finalize the international regime and to submit for consideration and adoption by the Conference of the Parties at its tenth meeting an instrument/

instruments to effectively implement the provisions in Article 15 and Article 8(j) of the Convention and its three objectives”.²⁰ Furthermore, the so-called Bonn Mandate was adopted, a roadmap from COP 9 to COP 10 that provided for:

ƒ three meetings of the AHWG, preceded by regional and interregional meetings;

ƒ clear instructions on the issues for which operational text was to be developed and negotiated at each AHWG meeting; and

ƒ the establishment of expert groups on a) compliance; b) concepts, terms, working definitions and sectoral approaches; and c) traditional knowledge associated with genetic resources in order to provide legal and technical advice.

According to Decision IX/12, the seventh meeting of the AHWG (2009, Paris, France) was mandated to negotiate operational text on objective, scope, compliance, fair and equitable benefit-sharing, and access. At the end of the meeting, a highly bracketed text, the “Paris Annex”, was developed that provided draft language on most items and set out Parties’ preferences and points of divergence. The meeting was marked by disputes between several regional negotiating groups, which accused each other of turning bullets into bricks. In the end, these discussions led the AHWG to abolish the bricks and bullets approach.

The eighth meeting of the AHWG (2009, Montreal) addressed the issues of traditional knowledge associated with genetic resources, capacity-building, compliance, fair and equitable benefit-sharing, and access to genetic resources. It was held back-to-back with the sixth meeting of the Working Group on Article 8(j), which adopted and transmitted recommendations on the international regime on ABS.

At the end of the eighth meeting of the AHWG, an important step forward in the negotiation process was made with the adoption of the “Montreal Annex”. This annex included the first-ever complete draft of the international regime incorporating operational text on all elements. Furthermore, it included a second annex containing open discussion points of the regime for the next AHWG meeting.

19 See Earth Negotiations Bulletin, summary report of AHWG 6, at www.iisd.ca/download/pdf/enb09416e.pdf.

20 See CBD COP 9 decision IX/12, Access and benefit-sharing, 3.

Despite the considerable progress made, the Montreal Annex was still heavily bracketed. With less than a year left until CBD COP 10, pressure on the negotiating partners increased. In order to accelerate the negotiation process before the next AHWG meeting, it was decided to convene two informal intersessional meetings: the meeting of the ABS Friends of the Co-Chairs in Montreal in January 2010 and the ABS Co-Chairs Informal Inter-regional Consultation (CIIC) in Cali, Colombia, in March 2010. In addition, regional consultations for Asia, Latin America and Caribbean Countries, Central and Eastern European Countries, the Pacific, and Africa took place in collaboration with the United Nations Environment Programme and the CBD Secretariat.

The ninth meeting of the AHWG started in Cali immediately after the CIIC. For the first time in the process, a draft protocol was tabled by the Co-Chairs and adopted by the AHWG as a basis for further negotiations. With only seven months left until CBD COP 10, this was necessary for procedural reason. According to Article 28(3) of the CBD, any proposed protocol to the Convention has to be communicated to the Contracting Parties by the Secretariat at least six months before a meeting of the Conference of the Parties.

The adoption of this draft text as the future basis for negotiations marked the next critical step on the road to Nagoya, in that an implicit decision was made regarding the form of the international agreement:

a protocol under the CBD. Furthermore, the Co-Chairs took the strategic decision to establish an Interregional Negotiating Group (ING), which worked in a roundtable format and consisted of a small number of negotiators and observers: five representatives for each UN region; two representatives each for ILCs, civil society, industry, and public research; and representatives of the current (German) and upcoming (Japanese) COP Presidencies. In format and function, this approach was described as a “modified Vienna setting”.²¹ At the end of the Cali meeting, further progress was made on benefit-sharing from derivatives as well as on the establishment of an internationally recognized certificate of compliance. However, as the text-based negotiations were not yet finalized, it was decided to suspend the ninth meeting of the AHWG and resume the meeting in July in Montreal.

At the resumed meeting, negotiations continued in the ING format. The outcome of multiple day and night sessions of discussion and negotiation was a further advanced draft protocol with a common understanding on important issues related to compliance, access, and benefit-sharing including derivatives, as well as on the relationship with other international instruments. Still, additional consultations were needed for the development of a draft protocol to be presented at COP 10. This led the AHWG to reconvene the ING in September in Montreal and in October in Nagoya. Two days before the opening of COP 10, the resumed meeting of the ninth meeting of the AHWG adopted a draft protocol that was not yet finalized but was ready to be transmitted to the COP for its consideration.

Negotiations continued throughout the full two weeks of CBD COP 10 in Nagoya. In order to facilitate the ABS negotiations, an Open-ended Informal Consultative Group on ABS (ICG) was established in the first plenary session of COP 10. The ICG was chaired by the Co-Chairs of the AHWG and tasked to finalize the protocol text. Key issues that required compromise included utilization and derivatives, scope, access to genetic resources in emergency situations, relationship with other international instruments, checkpoints, and mandatory disclosure requirements, but also traditional knowledge–

related issues. When it became clear that the ICG would fail to agree on a final text, a compromise text was tabled by the Japanese COP Presidency as a basis for Ministerial informal consultations.

This “closed doors approach” stood in contrast to the “ownership-based approach” that was taken 21 The term “Vienna setting” goes back to the negotiations of the Cartagena Protocol on Biosafety under the CBD. Here it was introduced to describe the arrangement of a hexagonal negotiating table, seating the Chair

throughout the negotiation process. However, it proved to be successful in the end, so that the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity was adopted by COP 10 Decision X/1 on 29 October 2010.

As the Nagoya Protocol was part of a package deal comprising the Strategic Plan for Biodiversity 2011–2020, including the Aichi Targets²² and the Strategy for Resource Mobilization,²³ its final adoption was not only an important achievement to facilitate the future implementation of ABS but also a necessary step to safeguard CBD COP 10 and the CBD process in general from failing. Furthermore, the agreement on the Nagoya Protocol sent an important signal to the international community. It proved that despite ongoing failure in other political fora (such as the negotiation process under the United Nations Framework Convention on Climate Change), international multilateralism could still work.