The ABS Series represents a response to two realities: First, the ABS issue is controversial, and technically and legally complex. Because of the constant international concern over controversial policy and political issues, primary focus of all writing on ABS has been focused on political positions and advocacy, even where the expressed purpose of a particular document is “practical legal advice.” Lack of a rigorous body of ABS analysis has been one part of this implementation problem. Many professional inputs are characterized by opinions that are unsupported, or supported only by citations to the opinions of other experts or random references to or excerpts from laws and policy instruments, taken out of context.
To IUCN’s Environmental Law Centre, it has become clear that the complexity and the controversiality are linked problems. Solutions to the international ABS controversies are currently stymied by the lack of credible, non-biased technical analysis of the elements and issues of national implementation. Serious in-depth analyses are needed concerning not only the few ABS examples, but also the kinds of legal options that are available and the manner in which they function. Simply put, one cannot build a structure without the right tools – and having the tools is meaningless without knowledge of what they can and cannot do.
The second “reality” faced by this project is the fact that, despite the long-extending international negotiations, genetic resources are being taken, studied, developed and utilized every day. Countries do not have the luxury of waiting for international negotiations to answer their questions, before taking action. It is consequently urgent for all parties (users, source countries, source communities and resource owners, user countries, researchers, middlemen and others) to have some basis for taking these actions. More important, they need to have some certainty that this basis will be robust enough to protect his/its rights, even after international negotiations provide some guidance or assistance to all or part of the ABS issue. Even where national laws and practices exist, they are proving inadequate to this objective, in some measure owing to the lack of technical help, as described above.
Consequently, The ABS Series focuses on national implementation and the legal and legislative issues that must be addressed, rather than advocating or addressing a particular side or position in the international negotiations. Through this process, The ABS Series seeks to create the best possible basis of researched information on the practical application issues. It is thus not only a tool for national decision-makers but also for implementers. While it is not always possible to be certain that one has been unbiased, we have made an effort, at minimum, to note the existence of other credible positions on the issues discussed, and to give some reasons why these positions were not more fully expounded.
As of this writing, the international process for development of the ABS regime is still ongoing. While not intended to “influence” that process, The ABS Series has been designed and written in the hope that a better knowledge of the realities of ABS will enable the negotiators to develop the regime as a functional and effective tool of conservation, equity and international development. As such, we believe that the books in this Series will continue to be primary works of scholarship and professional analysis on which the architects and implementers of the ABS regime will rely long after the negotiations have concluded. In addition, it is hoped that the authors in the Series (or a team of similarly qualified experts) will be engaged to update relevant books from the Series, when the time is right.
Target Audiences: Writing for a broad audience can sometimes be challenging for lawyers. In The ABS Series, however, we recognize that our primary audience includes national decision-makers, NGOs and others, as well as lawyers and economists. We have endeavored to present our research in an accessible way, without doing harm to our absolute standard of legal correctness. Although many readers would like a “simplified” pamphlet-style analysis of the ABS issue, which can answer all of their questions in a few pages, this is not possible – the only simple fact about ABS is that it is not simple. The ABS Series provides summaries of the complexities in the issue that legal specialists must grapple with, but at the same time attempts to avoid “legalese” and its companion “econoese.” In this way, we feel that The ABS Series provides both clarity and understandability for the non-lawyer, who may obtain a thorough grounding in the ABS issue through reading these books. For the legal or economics professional, however, these books also provide resources and information that will enable their deeper understanding of ABS issues.
The future: The ABS issue is still evolving. After the commencement of The ABS Project, the CBD entered on a groundbreaking process of re-evaluating ABS and attempting to develop the necessary tools, consensus and understanding (e.g., a clearer and more functional “international ABS regime”) that will enable progress toward achieving the goals of the CBD. With this decision, The ABS Project underwent its first evolution. It had begun as a project aimed at helping national governments to find some positive steps to enable them to try to achieve the fixed language of CBD Article 15. In 2004, it necessarily expanded that focus – embracing the goal of informing all participants and interested persons (at national, regional and international level) regarding the options, instruments, practices and processes that can enable the ABS regime to become a functional mechanism for achievement of the CBD third objective. Only time can decide how far the international negotiations will go toward assisting and supporting ABS implementation. The team of professionals who have worked to provide The ABS Series hope that a useful and innovative result is quickly obtained, and that we will all have the opportunity to extend the work of this Series and to guide, analyze and promote the new regime components that will be developed.
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