The final plenary meeting on November 1—the last day of the 16th Conference of the Parties (COP16) to the Convention on Biological Diversity (CBD)—dragged on for 11 hours after the designated time without decisions on many agenda items. It had to be suspended due to lack of quorum as the delegates left to catch their return flights.
The major reason for this delay was the discussions on Target 13 of the Kunming-Montreal Global Biodiversity Framework (KMGBF), adopted at COP15 in 2022. The target seeks to increase the sharing of benefits with the communities earned from the use of genetic resources and digital sequence information (DSI).
DSI refers to genetic data such as nucleotide sequences (DNA and RNA) and protein sequences of organisms. The data can be used in manufacturing drugs and cosmetics instead of the actual organism. But DSI’s nonphysical nature (the data can be stored digitally) and use complicates the traditional methods of managing access and benefit-sharing established under CBD’s Nagoya Protocol of 2014—an international agreement which aims at sharing the benefits arising from the utilisation of genetic resources in a fair and equitable way. Though Nagoya Protocol mandates that countries hold sovereign rights over their biodiversity, there is no clarity about these rights in case of DSI.
The first step towards benefit-sharing and ensuring that there is a significant increase of the benefits shared by 2030 (Target 13 of KMGBF) was to operationalise a multilateral mechanism. This has been agreed upon with the setting up of Cali Fund. The multilateral mechanism is a contradiction to the basic premise of CBD which says that countries have sovereign rights over their biodiversity. It supports bilateral agreements on access and benefit-sharing (ABS) with communities. But it is critical because large amounts of DSI are present in public repositories for which the source is not available and this has been put without the knowledge of the communities—a form of blatant biopiracy. The multilateral mechanism, which is non-binding, says that those industries (in relevant sectors) whose income exceeds a certain threshold should contribute 1 per cent of profits or 0.1 per cent of revenue to the Cali Fund. But the agreement on the multilateral agreement was not without what Susana Muhamad, the president of COP16, termed “real drama” on the final day of the Convention. This is how the negotiations unfolded.
Despite 12 days of discussions, Parties were not able to agree on much in the working groups and contact groups. A conference room paper could not be prepared and bilateral discussions and those with friends of co-chairs failed. President of COP16, Muhamad, prepared a draft text, called the president’s text, which was discussed with the Parties on the last day of the meeting and clean text was brought into the final plenary as the “L-Document” to be negotiated for adoption in the plenary late in the evening of the last day of negotiations.
This document was not acceptable to the developing countries. A small group reconvened to discuss the issues further. The group, however, could not agree on whether developing countries should continue to have sovereign rights over a DSI that has been made available in a public database, including a right to receive benefits arising from its use, should the country decide to exercise such a right. For example, a country could establish an open access national database available to the public under its national laws on access and benefit sharing (ABS) and derive benefits from its use. Despite the issue being unresolved, a final text was prepared for negotiations.
At the final plenary, many countries accepted the text. These included Norway, EU, Japan, Canada, South Africa, Mexico and Switzerland. Canada and Switzerland specified that they were happy with the “non-binding” agreement; that this was the first step; and that there was a need for national discussions on implementation. Panama and Peru had some reservations. Panama wanted full autonomy over the funds and wanted 10 per cent of the proposed fund to be earmarked for capacity building. Bolivia wanted a reference to “other knowledge systems” in the preamble. Still, both the nations accepted the text.
India, however, said it will accept the text only when its critical concerns are addressed. India wanted to ensure that countries continued to have sovereign rights over the DSIs. B Balaji, secretary, National Biodiversity Authority, said that these points had been raised since the beginning of the meeting and that India had even sent a mail to the secretariat, but were still not included in the final text.
The atmosphere became tense with Muhamad asking India to reconsider and come back after she has heard from others. After this, more countries pointed out that they have reservations, even while agreeing to the text. These included Zimbabwe, Cuba, Brazil, Chile and Burkina Faso. Brazil reminded the members of the bigger picture that UN Secretary-General António Guterres had painted at the inaugural session, when he said that the countries are discussing DSI is because the developing countries are being plundered as the scientific discoveries and economic growth derived from these are benefiting others. However, Brazil said that even while they were uncertain how these mechanisms would work, there is a need for a collective leap of faith and accepted in deference to the political mandate set at COP15.
The main dissent to the India’s intervention came from Switzerland. The negotiator pointed out that changes in text would mean that they would no longer be able to support the decision. Norway too said that it is against the points that India plans to raise and that these are “red lines” for them. The country’s negotiator asked India to show flexibility and accept the text.
The president announced a five-minute-break but the interlude dragged on for around 45 minutes. Observers at the venue said that during this time, executive secretary of the convention, COP-secretary, co-chairs of the contact group that negotiated DSI draft decision and other negotiators and observers surrounded the Indian delegation to bring them on board.
Finally, Muhamad announced at the plenary that what India wants does not affect the meaning of the text and agreed to put a phrase “without prejudice to the national obligation or ABS” into the annex, “Modalities for operationalizing the multilateral mechanism for the fair and equitable sharing of benefits from the use of digital sequence information on genetic resources, including a global fund”. The first point of the annex now states: “The multilateral mechanism for the fair and equitable sharing of benefits from the use of digital sequence information on genetic resources covers, without prejudice to the national obligation or ABS, digital sequence information on genetic resources…”
The other change was the inclusion of the phrase “and national legislation” to para 21 so that it reads “Where appropriate and subject to national circumstances and national legislation, at least half of the funding of the global fund should support the self-identified needs of indigenous peoples…”
India pointed out that the wording should be “national legislation” and not “obligation” in both these places.
Though this point was there in the preamble of the document, it was missing in the annex on operationalisation. Adding the line to the annex clearly makes it part of the mechanism. The widespread displeasure shown by the developed countries such as Switzerland, Norway and EU indicate that this change is significant.
Switzerland was still not in favour of the change and pointed out that for the fund to work, there has to be an incentive for the companies to use this mechanism. There has to be assurances that they are not hindered by national legislation.
Switzerland pointed out companies night not want to pay to the multilateral fund unless there not assurances that they would not have to pay again due to national legislation. EU called this change “unfortunate”. Both the presidency and UK, the negotiator from the country William Lockhart, who was also the chair of the working group on DSI, reassured developed countries that the addition does not change the meaning of the text. Finally, Switzerland accepted India’s change, saying that these modalities will be discussed again later. There was jubilation on the stage.
Meanwhile, various developing countries chipped in the discussion on how the concerns that they had raised in the meetings were also not included in the final text. Panama’s highlighted that its demand to earmark 10 per cent of the fund for capacity building has been removed at the last minute. The negotiator said that there is a lack of transparency in the processes and small countries are always expected to give in. “Our contribution have not been sufficiently considered even though we have consistently demonstrated a strong commitment to the issue from the beginning. Without a firm commitment to capacity building and support at the global level of the mechanism we are setting small countries like mine up for failure” he said.
With this, a multilateral mechanism for benefit sharing in form of a voluntary global fund—Cali Fund—was operationalised. “Overall, it was pleasing to see that developing countries did not give up their sovereign rights over genetic resources, including on DSI, on a promise of a multilateral mechanism. Since the fund has been established, large companies can start contributing to the fund. Meanwhile, countries should continue to work to reduce the danger of digital biopiracy and improve governance and compliance measures,” Nithin Ramakrishnan, senior researcher at international non-profit Third World Network, tells DTE.
