The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization (Agenda Item 2)

POSITION PAPER The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization (Agenda Item 2) Eleventh Meeting of the Conference of the Parties to the Convention on Biological Diversity, Hyderabad, India, 8-19 October, 2012 Summary of Recommendations IUCN recommends COP11 to: Entry into force Call on the Executive Secretary to call for the development of an external analysis about the issues that might be delaying ratification, acceptance, approval or accession of the Nagoya Protocol, and what can be done to eliminate those delays. Capacity-building and awareness-raising Urge Parties to identify regional coordination and cooperation mechanisms and networks that could serve as platforms to share and link capacity-building (as well as awareness-raising) strategies and to promote transboundary cooperation towards the implementation of the Protocol, while making progress in their domestic ratification processes. Resource Mobilization Recommend that Parties include ABS and Nagoya Protocol-related actions into their NBSAPs, particularly financial and human resource needs related to strengthening the national capacity to implement the Protocol and contribute to fulfill Aichi Target 16, as well as the direction of benefits arising from the utilization of genetic resources towards the conservation of biological diversity and the sustainable use of its components. Other matters For more information, please contact : Mrs. Sonia Peña Moreno Senior Policy Officer- Biodiversity Global Policy Unit Sonia.PenaMoreno@iucn.org Mr. Thomas Greiber Senior Legal Officer IUCN Environmental Law Centre thomas.greiber@iucn.org Dr. Jane Smart Global Director, Biodiversity Conservation Group Head, Species Programme Jane.smart@iucn.org Mr. Maximilian Mueller Policy Trainee Biodiversity Global Policy Unit Maximilian.Mueller@iucn.org IUCN World Headquarters Rue Mauverney 28 1196 Gland Switzerland Tel: +41 22 999 0000 Fax: +41 22 999 0002 mail@iucn.org www.iucn.org While only the COP/MOP has the legal authority to adopt decisions on the above matters, IUCN calls on COP11 to: Renew the mandate of the ICNP by authorizing it to undertake, with the support of the Executive Secretary, further preparations on the above matters in view of COP/MOP1, at which time it will cease to exist; and Decide the facilitation of additional meetings of the ICNP as well as of expert and advisory groups in order to promote further discussions and a common understanding among Parties on selected matters so that COP/MOP1 can consider and, if possible, approve the necessary decisions for the Nagoya Protocol to become fully operational. INTERNATIONAL UNION FOR CONSERVATION OF NATURE

Introduction IUCN welcomes the adoption of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization at the 10 th meeting of the Conference of the Parties to the Convention on Biological Diversity (COP10) and considers it as an important step towards the implementation of the 3 rd objective of the Convention. IUCN congratulates the Executive Secretary on the facilitation of the first and second meeting of the Open-ended Ad Hoc Intergovernmental Committee for the Nagoya Protocol (ICNP) as it was envisaged in COP10 decision X/1. It also congratulates Parties on their encouraging efforts to enter into continuous discussions in a very positive and constructive atmosphere. It is evident that in spite of those national efforts, there are still a number of issues and Articles in the Protocol which deserve further discussion and which are not clear for Parties. As long as there is no level playing field with which all interested parties and stakeholders feel comfortable with and which is built on trust and clarity, national level efforts are not going to be enough. As evidenced by the reports of the ICNP1 and ICNP2, a number of open questions remain with regard to the operationalization of the Protocol in general, and certain Articles in specific. This IUCN position paper highlights some of those challenges and issues that need further attention. It also provides some IUCN recommendations for Parties at COP11 to consider. The last section of this paper provides a brief overview of IUCN s ABS work and highlights areas in which IUCN is best placed to offer its support to complement existing efforts. Entry into force IUCN notices the efforts made and progress achieved by Parties to develop domestic access and benefit-sharing (ABS) measures and to move towards the entry into force of the Nagoya Protocol. In particular, IUCN welcomes the signature of the Nagoya Protocol by 92 countries, and it congratulates those 5 countries (as of 17 August 2012) that have already ratified the Protocol. However, IUCN also expresses its concern with regard to the high number of instruments of ratification, acceptance, approval or accession still needed in order for the Protocol to enter into force in time to hold its first meeting of the Parties (MOP1) in conjunction with the next Conference of the Parties to the Convention (COP12) in 2014, and to meet the Aichi Target 16 of the Strategic Plan for Biodiversity 2011-2020 which foresees that by 2015 the Nagoya Protocol has entered into force and is operational. IUCN therefore wishes to further encourage Parties efforts in the process of ratification, acceptance, approval or accession and in the development of regional and/or national ABS frameworks to operationalize the Nagoya Protocol. To support this process, IUCN suggests that an independent analysis of the existing obstacles that are preventing Parties to ratify, accept, approve or accede to the Protocol be carried out as soon as possible. IUCN offers its support through its existing networks to carry forward such an analysis. IUCN also wishes to remind Parties that genetic research and development are ongoing and that there is no need to wait for the Nagoya Protocol to enter into force to advance in these areas. As Parties are still bound by Article 15 of the CBD, we urge them to live up to the obligations contained therein, using the Nagoya Protocol and the Bonn Guidelines as well as other ABS tools, as means of improving their compliance and understanding of the broader application of Article 15. IUCN thus recommends COP11 to: Call on the Executive Secretary to call for the development of an external analysis on what is delaying ratification, acceptance, approval or accession, and what can be done to eliminate those delays. Capacity-building and awarenessraising Country-driven and targeted communication, education and public awareness (CEPA) are cornerstones in facilitating a better understanding about and operationalization of ABS in general and the Nagoya Protocol in particular. With respect to measures to assist Parties in capacity-building and IUCN (International Union for Conservation of Nature): Position Paper Page 2

development, IUCN welcomes the wide calls to the Executive Secretary, Parties, Governments, international organizations, the Global Environment Facility (GEF) and others, as stated in recommendation ICNP2/5 in UNEP/CBD/ COP/11/6, to continue building/developing the capacities of Parties as well as other relevant stakeholders, including indigenous and local communities (ILCs), the business sector and the research community. IUCN supports the view that there cannot be a one-size fits all approach to capacitybuilding to support the entry into force and implementation of the Protocol, but that capacity-building has to be based on national needs assessments and country-specific measures. We therefore welcome the Overview of measures to build or develop capacity to effectively implement the Protocol as contained in Annex I of recommendation ICNP2/5 as well as the three Phases proposed and the key areas identified in that overview provide a succinct summary of the needs and priorities identified by ABS stakeholders. We, however, reiterate the importance to consider that there is no need to have finalized applying the measures foreseen under each Key area in one Phase to move into another. IUCN further highlights the importance of having (a) mechanism(s) to promote coordination and to facilitate cooperation among the Parties in order to ensure that existing efforts are aligned and do not duplicate each other; that activities undertaken are clearly targeted and are based on national and sub-national needs assessments; and that transboundary cooperation, for example in situations foreseen under Article 11 of the Protocol, is encouraged. We consider that the creation of regional coordination and cooperation hubs or mechanisms should be explored as the strategic framework for capacity-building and development for the Nagoya Protocol is further developed. IUCN finds the draft awareness-raising strategy as set out in recommendation ICNP2/6 contained in UNEP/CBD/COP/11/6 is a solid framework for awareness-raising and communications activities to consistently support the implementation of Article 21 of the Nagoya Protocol. We particularly stress the need for awareness-raising activities to clearly respond to specific needs as identified by each country and for activities led by different Parties and organizations to be complementary and cost-efficient. IUCN thus recommends COP11 to: Call on Parties to set a medium/ longterm plan, based on national needs assessments, identifying activities and financial resources needed and taking into consideration the elements of the Strategic Framework in ICNP2/5 and the draft awareness-raising strategy in ICNP2/6; and Consider the three Phases listed in the Overview of measures as overlapping and not as sequential, and to allow for flexibility and adaptability in the way the measures identified are deployed at local, national and regional level for these to be effective; and Urge Parties to identify regional coordination and cooperation mechanisms and networks that could serve as platforms to share and link capacity-building (as well as awarenessraising) strategies and to promote transboundary cooperation towards the implementation of the Protocol, while making progress in their domestic ratification processes. Guidance for the Financial Mechanism The Global Environment Facility (GEF), as the financial mechanism of the Convention, is equally the financial mechanism for the Protocol in accordance with Article 25 of the Protocol. In that respect, the guidance provided to the GEF through pertinent decisions of the COP (e.g.cop10 Decision X/24) is also relevant to the Protocol. Nevertheless, IUCN welcomes the initial guidance provided to the GEF on the funding needs of ABS-related activities and specifically those directed to support the advancement of the implementation of the Protocol once in force as stated in recommendation ICNP2/1. Moreover, we are of the view that it is of paramount importance that in preparation for the entry into force of the Protocol and its first COP/MOP, Parties further clarify their top priorities for GEF resource allocation. The activities identified as priorities during the GEF s sixth replenishment in recommendation ICNP2/1 (Annex II), may serve as a starting point which, however, IUCN (International Union for Conservation of Nature): Position Paper Page 3

have to be fine-tuned for them to be more specific and thus allow for a more clear and focused response from the GEF. IUCN calls on COP11 to: Encourage Parties to clearly identify and communicate their top funding priorities to the GEF relying on the support and guidance from the Secretariat; and Call on the GEF and the Secretariat to work jointly to provide regular guidance to the Parties on the procedures to apply for funding under the Nagoya Protocol Implementation Fund or any other ABSrelated GEF mechanism. Resource Mobilization Recommendation WGRI4/2 recalls COP decision IX/11 on the Strategy for Resource Mobilization and encourages Parties to develop country specific resource mobilization strategies, including assessment of resource needs, as part of their updated national biodiversity strategies and action plans (NBSAPs); recalls COP decision X/3 and the Strategic Plan for Biodiversity 2011-2020, reiterating that resources (financial, human and technical) need to be mobilized from all sources and that this should be balanced with the effective implementation of the Strategic Plan; and highlights the need for further consideration on the evaluation of the resources mobilized in terms of the biodiversity outcomes achieved. IUCN is of the view that ABS matters in general and the Nagoya Protocol in particular need to be fully integrated into the Strategy for Resource Mobilization of the Convention, its goals, targets and indicators. Moreover, it should be recalled that Aichi Target 16 of the Strategic Plan for Biodiversity 2011-2020 is about the Nagoya Protocol entry into force and implementation by 2015 and thus resources mobilized and allocated to support efforts in materializing Target 16 are urgently needed. We consider that Parties have a great responsibility in integrating resource mobilization considerations pertaining to the Nagoya Protocol in their revised and updated NBSAPs; in making explicit their resource mobilization needs and demands for the implementation of the Protocol; in promoting an enabling environment at the national level for the participation of all sectors in finding diverse funding sources that support the implementation of the Protocol; and in encouraging users and providers to direct benefits arising from the utilization of genetic resources towards the conservation of biological diversity and the sustainable use of its components, as foreseen in Article 9 of the Protocol. This provides a great opportunity to further integrate the implementation of all three CBD objectives in line with COP decision IX/8, and also to integrate the private sector in these efforts, including through so-called innovative financial mechanisms. IUCN calls on COP11 to: Recommend that Parties include ABS and Nagoya Protocol-related actions into their NBSAPs, particularly financial and human resource needs related to strengthening the national capacity to implement the Protocol and contribute to fulfill Aichi Target 16, as well as the direction of benefits arising from the utilization of genetic resources towards the conservation of biological diversity and the sustainable use of its components. Global Multilateral Benefit-sharing Mechanism, ABS Clearing-house and Procedures and Mechanisms to Promote Compliance with the Protocol The idea of a multilateral approach to situations in which ABS requirements cannot be met on a bilateral level was a last-minute addition to the text of the Nagoya Protocol. This is not unprecedented as Article 15(7) of the CBD already contains an indirect reference to a multilateral approach, namely the consideration of the financial mechanism under the Convention as a plausible instrument for benefit-sharing. In fact, Article 10 of the Protocol does not create a multilateral mechanism; it rather calls on Parties to discuss on the need of creating one. The development of the ABS Clearinghouse, as foreseen under Article 14 of the Protocol, will be crucial to facilitate access to and the exchange of ABS information around the world, and to support Parties working towards the implementation of the Nagoya Protocol. IUCN supports the implementation of an ABS Clearing-house pilot phase in order to ensure that the mechanism, once IUCN (International Union for Conservation of Nature): Position Paper Page 4

the Nagoya Protocol enters into force, is immediately functional. In preparation for COP/MOP1, the ICNP was mandated to discuss co-operative procedures and institutional mechanisms to promote compliance with the Protocol and to address cases of non-compliance. IUCN welcomes the development of draft Cooperative Procedures and Institutional Mechanisms to Promote Compliance with the Protocol and to Address Cases of Noncompliance, as contained in recommendation ICNP2/7 which may serve as the basis for future consideration of this issue. While we welcome the progress made on these subject matters during the ICNP meetings, we would like to highlight that the deliberations held evidenced the need for further discussions among Parties and other relevant stakeholders in order to reach a common understanding. While only the COP/MOP has the legal authority to adopt decisions on the above matters, IUCN calls on COP11 to: Renew the mandate of the ICNP by authorizing it to undertake, with the support of the Executive Secretary, further preparations on the above matters in view of COP/MOP1, at which time it will cease to exist; and Decide the facilitation of additional meetings of the ICNP as well as of expert and advisory groups in order to promote further discussions and a common understanding among Parties on the above matters so that COP/MOP1 can consider and, if possible, approve the necessary decisions for the Nagoya Protocol to become fully operational. IUCN s efforts to support the implementation of the Protocol ready in early 2013. Further capacity-building and awareness-raising tools are planned to be developed on the basis of this Guide. The GEF Project Strengthening the implementation of Access to Genetic Resources and Benefit Sharing Regimes in Latin America and Caribbean managed by IUCN s Office in South America (IUCN-SUR) seeks to enforce capacities in eight countries - Cuba, Costa Rica, Colombia, Ecuador, Dominican Republic, Guyana, Panama and Peru- in the Latin American and Caribbean (LAC) region to develop and/or comply with national policy and legal frameworks regarding access to genetic resources, benefit-sharing and the protection of traditional knowledge. The project covers issues like the prevention of misappropriation or illegal use of genetic resources and traditional knowledge as well as bio-prospecting initiatives. The project started in July 2011 and will continue until June 2014. Capacity-building under this project takes a practical approach, focusing on knowledge transfer and training, and the use of didactic materials (case studies) together with existing guidelines and tools. Finally it is worth mentioning that IUCN has created the joint CEL-SSC Specialist Group on ABS and Related Matters, an initiative by the IUCN Commission on Environmental Law (CEL) and the IUCN Species Survival Commission (SSC). The Group s goal will be to provide balanced input from a range of legal and scientific experts on diverse ABSrelated issues. Based on these past and ongoing activities, IUCN offers the services and technical expertise of its networks to the Parties. In our role as neutral broker, we stand ready to identify opportunities for joint work and to provide the necessary means, at the extent possible, to effectively implement COP10 decision X/1 and to achieve the Aichi Target 16. Since the first meeting of the ICNP, IUCN in collaboration with different partners, has developed an Explanatory Guide to the Nagoya Protocol which shall facilitate a clear understanding of the Protocol text and the resulting obligations for the Parties. Furthermore, the Guide provides practical guidance for the Protocol s implementation at the national level. The Explanatory Guide in its English version will be launched at COP11. Translations into French and Spanish will be IUCN (International Union for Conservation of Nature): Position Paper Page 5