New Era

WINDHOEK - In preparation of the finalisation of the access and benefit sharing international regime in Japan, Africa says it will enter negotiations as a unified block.

African leaders agreed that the continent needs a single, comprehensive and legally binding international regime on access and benefit sharing (ABS) of the world's biodiversity and genetic resources.

This was confirmed by Rejoice Mabudafasi, the African Ministerial Council on the Environment (AMCEN), and South African Deputy Minister on Water and Environmental Affairs this week at the conclusion of a three-day meeting in Windhoek.

Mabudafasi said the African ministers furthermore endorsed the African group's position to the effect that the international regime should contain strong provisions to ensure compliance at local, national and international levels.

An ABS regime, African states feel, will be able to "unlock" the implementation of objectives of the United Nations Convention on Biological Diversity (UNFCCC) that was adopted in 1992.

In short, an ABS regime will allow for access to genetic resources while ensuring benefits for the provider country on all levels from government institutions to communities where resources are found.

The objective of an ABS regime is to ensure fair and equitable sharing of benefits arising from the utilisation of biological resources and genetic resources.

The scope of the regime, said Sem Shikongo of the Ministry of Environment and Tourism (MET), should cover all biological and genetic resources, their derivatives and products, as well as associated knowledge, innovation, and traditional practices subject to national legislation.

At the conclusion of the meeting, there was no clarity on what constitutes genetic resources, its derivatives and products for the purposes of such a regimented area.

But the ministers reaffirmed the African group's position that the international regime should not just include genetic resources - whatever these may all include - but also biological resources.

They further called for specific action to seek further clarification from their European counterparts on the issue of access standards.

Overall, said Mabudafasi, a fruitful exchange took place between the African ministers and their European counterparts - Denmark, Germany and Norway - to take stock of each other's position and interests in the current negotiations that are anticipated to come to finalisation in Nagoya, Japan, later this year.

Danish Minister for Environment, Karen Ellemann, one of the bigger sponsors for the meeting in Windhoek, said the major goal of the gathering was that Africa goes to Japan and speaks with one voice.

The call from African states for a legally binding regime, said Ellemann, was supported by the European Union and in particular, Denmark.

Namibia's Permanent Secretary in the Ministry of Environment and Tourism, Dr Kalumbi Shangula, was positive about this: "Africa will speak in one voice because our challenges are the same."

African states had already indicated so at a meeting in Bali, Indonesia, about two weeks ago.

During the meeting, issues such as access, technology transfer, definitions, disclosure requirements and compliance matters were discussed.

Shikongo of MET said "access" to genetic and biological resources should be subject to national legislations and linked to mandatory prior informed consensus on mutually agreed terms.

The minimum standards for benefit sharing, he said, ought to be specified in the international regime.

African countries developed its position in Cairo during the fourth Plan African ABS Capacity workshop in December last year; this was again recalled here in Namibia this month.

These countries proposed that the scope of the international ABS regime should include continued and new uses of a position taken before the Convention on Biological Diversity (CBD) on access of biological and genetic resources.

Further, it said trans-boundary resources must be provided for therein through bi-lateral, sub-regional or regional ABS arrangements or agreements.

Further, said Shikongo, such a regime must make provision for mandatory disclosure requirements, and all aspects thereof must be complied with, particularly in respect to intellectual property rights.

African countries similarly felt that capacity building and development are key components to the successful implementation of an ABS regime.

This, they said, requires the necessary financial and technical support after countries have identified their own needs and priorities.

Technological transfer, they said, must include participation of provider countries in the development of technology for use and exploitation of accessed materials in the user countries, as well as in final product development.

Countries felt compliance to the regime should ensure strong provisions at local, regional and international levels.

Further, countries should develop laws, policies and administrative measures to ensure compliance with ABS laws or requirements of provider countries.

And an internationally recognised certificate should be issued by a competent national authority of the provider country to accompany accessed materials at clearly defined checkpoints for tracking and monitoring purposes.

Access to traditional knowledge should be in accordance with the customary laws, community protocols and community level procedures of indigenous and local communities.

Also, the rights of indigenous and local communities should be maintained in the exchange of material and knowledge among themselves according to customary practice.

Key tensions during former discussions on the proposed ABS regime were around access standards, and others.

Shikongo said fundamental tension between access versus compliance in the negotiations. The European Union advocated for clear access standards that ABS legislation of countries providing access to genetic resources must comply with.

Africa argued that there has not been good faith from European Union countries to facilitate compliance with existing ABS laws of provider countries.

The Africa group hence seeks further clarification on this issue from the European Union regarding its proposal.

Another area of tension was the extent of technology transfer in the context of ABS. African states said access to research and technology relevant to the biological and genetic resources and associated traditional knowledge is a reciprocal access to technology that is in line with the benefit sharing provision.

The definition of "misappropriation" of such resources, it was suggested, should be integrally linked to the tension between access and compliance and the debate around the scope of the ABS regime.

The African position was that "misappropriation" be simply defined as the utilisation of genetic resources in violation of national laws and/or requirements and/or customary laws and community protocols.

And where there are no national legislations or customary laws or protocols, misappropriation should be defined by the international regime on ABS.

As far as disclosure requirements are concerned, many countries, including the African group, considered that this should be part of the international regime.

Without disclosure, they said, issues of compliance and enforcement would be compromised.

Proposals for disclosure requirements were viewed as one mechanism of ensuring legal and transparent access to genetic resources and a fair and equitable benefit sharing process.

The African group kept open the possibility that the international region on ABS should include both genetic and biological resources.

Developed countries, however, held that the regime be restricted to specific uses of genetic resources and were unwilling to include derivatives and products in the regime, for lack of clarity.

Compliance to the regime at national level, said countries, should mean that each country has the power to develop and enforce a range of criminal, civil and administrative options for situations constituting a breach of ABS legislation.

African countries suggested, though, that the international regime should provide measures to facilitate international cooperation for the enforcement across jurisdictions.

The key concern underlying the question to access to justice is that of ensuring that ABS agreements and legislation of the provider countries are adhered to.

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