4 Enforcement, Tracking, and the Need for Incentives and Other Approaches

This chapter seeks to address the legal problems for source countries, regarding the enforcement of their laws on ABS. These problems have been noted across a wide range of commentators, with varying suggestions, ranging from increasing penalties and controls on specimen collection to mandating greater involvement by user countries, to developing incentives which are sufficient to promote compliance without major enforcement actions. This chapter also raises another possible avenue for improving enforcement altering the legal basis of the user's action through “reciprocity” provisions. This idea links to the discussion of incentives, under which more favorable (streamlined or less expensive) procedures would be available to users who make such a commitment. As noted below, this idea may have some limited implications from international trade.

4.1 Preliminary considerations - inefficacy of mandatory measures

Before analyzing the issue of incentives to promote compliance with the ABS procedures, some preliminary considerations are necessary. It has been noted that the current ABS situation often penalizes those who want to comply with ABS laws.175 ABS initiatives that have become known to the public have come under the attack of different groups that have been opposed to them, under the concept of biopiracy, even where the applicant took every available measure to comply with national ABS requirements.176

Detection of non-compliance is also difficult, but for different reasons. Monitoring and enforcement, for example, are problematic because the material in question can often be difficult to identify, consisting of things such as seeds, water samples or micro-organisms. Authorities have no means of assessing what the samples might contain and what uses they might be put to. Even when identified their provenance cannot often be proven. Compounding this problem is the fact that the collection of material for one purpose might be quite legitimate while collection of the same material for a different purpose might be an offence.

4.2 Controlling and monitoring the utilization of genetic resources

Even the most basic elements of the national access legislation frameworks present difficult challenges. Access legislation embodies many kinds of action and awareness, most especially awareness of what is done with resources once they have been accessed (obtained with permission to use). According to Carrizosa et al., the monitoring of bioprospecting agreements is one of the most difficult, expensive and resource consuming tasks currently undertaken in ABS. Currently, none of the countries studied has created an effective and functional monitoring system, whether applicable at national level or as applied to users outside of the source country's borders, given the jurisdictional and other problems with any attempt to follow the uses of genetic resources, or to exchange information about them.177

The problem with monitoring and compliance is considered to exist on two levels:178 direct monitoring (the technical problems relating to all monitoring, inspection and verification at national levels) and transboundary monitoring after the genetic resources have left the country (where users' facilities are located in other countries). This section will begin by addressing direct monitoring and oversight provisions, and then consider what provisions and processes source countries may use to maximize oversight, awareness and legal authority when the genetic resources are outside of their borders. The next section (4.3) will discuss particular approaches and case examples in greater detail.

4.2.1 Direct national monitoring and oversight

Even in areas where territorial jurisdiction is clear, experience has generally shown that governments have difficulty in monitoring bioprospecting activities, due to the limited resources available. Under article 15, source country monitoring, oversight and enforcement are all seen to arise out of two sources:

In addition, of course, all countries have broader rights to adopt legislation, and compliance with national legislation itself (both ABS and other legislation) is really the primary rule of ABS oversight. This section, however, focuses only on ABS laws and their implementation.

In most national access laws the primary oversight measures are based on periodic reporting, to evaluate compliance with access conditions. This is the main mechanism used to verify compliance, but its effectiveness is limited. Other schemes such as the use of identification codes for samples, access to research lab notes, etc., have been used, for example, by the National Biodiversity Institute in Costa Rica, as discussed below.179

4.2.2 Facilitating/mandating transboundary monitoring and oversight

The main enforcement problems with observance of ABS regulations are posed by the possibility of noncompliance with the provider countries' legislative provisions or with provisions in access contracts. In large measure, these issues arise outside of the source country's territorial jurisdiction.

Obviously, in a transboundary system180 the most significant problems arise where both countries are involved on the administrative and/or legal levels. Numerous authors have noted that the near total lack of measures by user countries may have had the greatest influence on the decision to commence the negotiations for an International Regime. In this regard, it has been said that:

In effect, any international regime will require a cooperative effort between the providers and users of genetic resources and traditional knowledge and will require that both take actions to mutually support the common objectives of the CBD relating to fair and equitable benefit-sharing.181

The ability of the provider countries to enforce their legal requirements will largely depend on legal mechanisms in foreign jurisdictions. The source country, however, is not released from the need to adopt both primary measures and enforcement-based mechanisms such as reporting and rights to annul or terminate the contract. Thus, although there is a strong impetus to compel developed countries to adopt “user measures,” there is also a need for source countries' access legislation to be designed to provide that “mutual support.”

There are numerous provisions that appear to be necessary at the source-country level, to strengthen the country's position with regard to enforcement outside its territorial boundaries. In general, these provisions include clear statements about what may or may not be done with resources that have originated from the country, regardless of where those activities take place. In addition, the country should adopt legislation stating that the terms of any access arrangement (or of utilization of genetic resources without ABS compliance) shall require regular reporting and milestones (as noted in chapter 3, above). Most important, however, the law must authorize the national government to take whatever measures possible to oversee, inspect and confirm that utilization of genetic resources complies with national ABS law. This should include giving the government the power to call on officials from other countries, and other individuals, to take these actions, if necessary.

In the majority of ABS contracts, periodic reports form the primary tool to secure the correct use of the resources provided. Casas suggests other mechanisms that could be developed including:182

Administrative and legal mechanisms to fully investigate demands for violation of ABS ..., in particular, facilitating access to justice for developing Countries of Origin [where resources were] acquired by deception or through a failure to fully disclose the commercial motive behind the acquisition or based upon a transaction deemed to be exploitative.

In this connection, it is important to remember that monitoring and oversight apply far beyond the stage of commercial development. Provider countries must also seek mechanisms to tie access to user standards and measures during the phases of use, research and development, patenting of products and processes, etc. - that is, all stages after initial acquisition of the resource.183

The legal need for both the power and the ability to oversee and monitor may tie in with the idea of a “certificate of origin/source/legal provenance,” which has been raised in international ABS discussions. Such an instrument would be of interest, providing that it is able to improve transparency and traceability. It has also been suggested that such a mechanism might simplify user-country measures, if it can provide guarantees that the provider country's legal requirements have been complied with.

4.2.3 Contractual mechanisms

Up to now, discussion of oversight and enforcement has generally focused on the contents of ABS contracts. They assume that if the contracts exist and are agreed by user and provider, enforcement under contract law is inevitable. The primary challenge, and principal problem, for source countries is rooted in the difficulties of using contractual instruments as enforcement tools, where the basic rules and subject of the contract are unclear.184 In essence, the objective in these negotiations is to obtain sufficient guarantees on the use of the genetic resources, and compliance with reporting and data-sharing requirements, that the country's interest will be protected.185

This suggests that further development of ABS legislation (including development at the international level) will need to focus on those points of ABS implementation that are not enforceable under contract law whether they are unclear, ambiguous, unfair, ineffective or impractical. In the long run, mechanisms, measures and instruments that are negotiated and developed at the provide a clear indication of some areas in which cross national level, but relate to transboundary situations, border cooperation and legislative support are essential.

4.2.4 Case study: tracking and monitoring at INBio

In the majority of cases, the only mechanisms available to provider countries for monitoring the utilization of genetic resources are the reports of the user. Experience has indicated some good practices and case studies which have proven effective.186

One useful case study is the manner in which Costa Rico's INBio addresses the transfer of resources for bioprospecting. In general, material is collected in the field under a permit system with separate permits for export and domestic use. A standard agreement applies to taxonomic research while unique legal agreements are developed for bioprospecting research. External transfers for bioprospecting

All material leaving INBio's Bioprospecting Unit is labeled with a barcode and identification number. INBio uses legal and contractual mechanisms for the tracking of the genetic resources as follows:

  1. Access is limited in time and quantity. Any transfer to a third party of sample is made using a material transfer agreement (MTA) or under a collaborative research agreement (with companies, research institutions, etc.). INBio agrees to transfer the materials specified in detail in the annex of the MTA or the contract.

  2. The recipient may transfer the material only with prior written authorization. The terms and conditions of the original MTA shall apply equally to these third parties. A letter with the following wording is usually required to accompany all transfers: This material has been received under a Material Transfer Agreement which includes terms and conditions for use by Third Parties.

  3. The recipient shall assign a unique identification number to each of the materials obtained and to the resulting materials from the research that will ensure traceability.

  4. Usually the recipient is obligated by the contract to maintain complete and accurate internal written records and reporting systems so as to keep track of all the materials and any research and/or development activities.

  5. The recipient has the duty to allow INBio upon request to audit and/or inspect such records and reporting systems from time to time and to make such changes in such reporting systems as INBio may reasonably request to ensure the accurate tracking of all materials.

  6. INBio may have access to the lab notes on INBio material.

  7. The recipient shall submit periodical reports to INBio on materials, stage of the research, IPR, research results, etc.

  8. The monitoring of uses is provided by the Bioprospecting Unit. There is no Department or special personnel dedicated to the monitoring of contracts; it is done by the current scientific and technical personnel in charge of other bioprospecting tasks. External transfers for biodiversity inventory

In general, all the types of samples located in INBio's collection (existing inventory) can be transferred to a third party, using an MTA and only for basic non-commercial research. These transfers occur mostly in the context of taxonomic research which does not involve access to reproducible genetic resources. Transfers are made only to qualified collaborators. Each specimen has a bar code written in the sample form or MTA and monitoring is done through 1) reports from the recipient and 2) a requirement for the recipient to cite the barcode number of any specimens used in publications.187 Costs of tracking resources through INBio

One frequent concern is the cost of this kind of system. The facilities for bar-coding, and the time and expense necessary to create a collection/inventory of national specimens cannot be denied. However, these activities are useful far beyond the scope of ABS. For example, the database and barcode system can be thought to effectively enable tracking; however, the purpose of the system is not primarily for tracking, but rather to facilitate data-control - to associate taxonomic use and other information with the actual material in the collection, to facilitate biodiversity research. Hence, the costs associated with tracking are difficult to separate from the wider research information management system. No cost estimate is available for compiling or analyzing reports from recipients on material used in taxonomic or bioprospecting research projects. Overall analysis: practical aspects of INBio's tracking system

INBio's practices for labeling biological material and tracking uses of the material within and outside Costa Rica show that it is feasible to label even individual insects given sufficient resources. INBio also databases agreements relating to collection and use of specimens including MAT. Legislation where there is less infrastructure

For many countries, the experience of Costa Rica, while useful and interesting, is not practical, given that they do not have the financial and technical resources to replicate it. Legislative efforts in these countries focus on facilitating compliance with contracts and the access to justice in their jurisdiction as demonstrated by a new draft ABS law, proposed in the Seychelles,188 one element of which is discussed in part 4.6, below.

4.3 Source-based incentives for compliance

As noted above, there are many virtually unsolvable problems that prevent source-country legislation – in the absence of necessary provisions in the user country – from functioning to mandate, oversee and ensure benefit sharing. Even if sufficient provisions are adopted by the source country, the costs and demands of oversight of a mandatory system may prevent functionality.

Some commenters feel that this situation can only be addressed by focusing on the establishment of a regime that encourages compliance rather than one that seeks to force it through monitoring and enforcement actions. The relatively limited enforcement capacity of most source country ABS authorities does not provide a sufficient threat of penalty. Consequently, the threat of being detected breaking the ABS laws does not constitute an incentive to comply. Similarly, the existing system's nonenforcement motivations are minimal. The threat of public exposure does not always have a sufficient impact to encourage compliance, and compliance does not always prevent claims of biopiracy.189 Consequently, it seems essential to develop incentives and other elements that give the user a motivation to comply with ABS requirements.190

As Tvedt191 pointed out:

One gap in the present benefit-sharing situation is the lack of clear incentives for researchers and industry to comply with the benefits-sharing obligation. Industry does not have much to achieve or gain by complying with the benefit-sharing obligation in the CBD. The success of patent law partly rests in the fact that the patentee has the very clear interest in enforcing the patent upon all other commercial users of the invention. It is in the interest of the private party that the others comply with the regulations. Thus, the incentive structure in the patent system brings economic benefits to the patentee and thus captures the value of his contribution to the state of the art. Thus, one topic...... to address is how to establish a sufficient level of incentives for industry to share a fair and equitable part of the benefits arising from the use of genetic resources.

In a situation where there are no effective incentives in place, the need for effective enforcement mechanisms increases. If it is not in the interest of the private party to comply with a legal requirement, there is a need for legal tools to enforce that legislation. Due to the extra-territorial gap described above, there is a lack of effective enforcement mechanisms in the area of benefit-sharing. ....Certificates and disclosure requirements are often mentioned in the context of incentives and enforcement.

In summary, as Young suggests:192 “There are basic indicators of the need for this [to create incentives]. First is the pressure for enforcement and the difficulties in actually enforcing ABS. It is not simple for any country to oversee or even know about its ABS activities. Often the only way of knowing whether genetic resources are being used would be to have access to private laboratories and files. Second, it is generally noted that any formal negotiation of ABS agreements increases the user's risk of being sued. From this perspective there is a very strong disincentive to engage in formal ABS compliance. What is needed is a business case for ABS compliance - a carefully reasoned, commercially realistic evaluation of the reasons that ABS is good for business. Presently there are relatively few such reasons.”

The use of market mechanisms has been suggested as one way of promoting compliance with access requirements. For the most part, these measures are dependent on user country measures, which are strongly advocated by other authors. However, one critical question in these discussions will be how source countries' legislative systems can promote and integrate with such incentives. Measures such as Certification Systems and voluntary codes of conduct are important, but really only effective if they are adopted by user country first, rather than unilaterally by the provider. Hence only a brief summary of these issues is appropriate.

It has been suggested that a system for certification of bioprospecting activities could be a way of encouraging companies to comply with the laws of ABS and, in general, with better practices in this matter. Formal certification systems depend on the creation of clear, objective standards, and then the creation of administrative mechanisms for verification of the compliance with the standards. If the certification is sufficiently “leakproof” and accepted by consumers, it would allow the consumer to differentiate the final product and consequently to favor the product by means of his purchase. Currently, these types of systems are being developed and applied in cases of forest and organic products.

A study into the possibilities of establishing a system of certification for bioprospecting determined that “At least in theory a bioprospecting certification system would be feasible to create. This conclusion relies on the realization that certification is a tool that has already been applied to a wide range of situations. There is nothing to suggest that certification could not be applied to bioprospecting activities.... Notwithstanding this general conclusion, outstanding issues, such as cost and demand, make it difficult to definitely say whether a bioprospecting certification system would be feasible to create and operate in practice. These outstanding issues need to be reviewed more closely in any subsequent exploratory work undertaken in the future.”193 The study concluded that unlike other natural resources addressed by other certification systems, genetic resources do not circulate in the consumer economy. Where they do, it is not necessarily in a way where consumers could easily distinguish whether the products embodying them are coming from a certified source without a label or logo. Furthermore, even with a label or logo, there may be no viable mechanism to pass on and capture the cost as with, for example, marine, ornamentals or fairly traded agricultural commodities.194 For these reasons, a market-based certification system appears difficult to develop.195

Another interesting development is the promotion of voluntary measures,196 such as Codes of Conduct, principles and guidelines that may be of value, at least in a relative sense, especially given the previously mentioned problems related to access to justice, monitoring and observance. Basically these codes seek to encourage adherents to comply with legal standards and good practices. However, these instruments can be ineffective if not accompanied by some incentive to use them.

For instance, the Japanese Guidelines (described above) offer a concrete first step toward effective user measures, by including a commitment from the Japanese Government, stating that if a user complies with all these guidelines and still encounters claims of misappropriation, unauthorized access or biopiracy, the Japanese Government will utilize diplomatic and informal means to seek a solution to the problem. This assurance of user-country assistance in resolving ABS-related claims offers real value to the user companies and may become a primary incentive encouraging companies to comply with these voluntary guidelines. Such examples are not common, however. Finally, incentives for compliance have not been identified in any of the ABS legislation that has been adopted to date. For source countries, the issue of incentives must focus on matters within their control, and in which they can provide some benefit. As one example,197 the country might post the names of companies that have complied with good ABS practices and legislation.

Other benefits that the source country can offer as positive incentives to promote ABS compliance could include faster processes of approval, lower fees and other expedited administrative processes, where there is compliance with the ABS laws. Another possibility is the payment of reduced fees in IPR applications and approval processes if/when the user seeks to patent his innovation in the source country. This option might be applied to all users, even where their product is based on genetic resources acquired from some other source (another user, an ex-situ collection, a researcher, etc.), so long as their compliance with the ABS laws is proven. If it is enforceable, such an approach would constitute an incentive to good corporate citizenship and compliance with ABS around the world.

Another potential incentive would apply where the source country created streamlined access procedures for users who take certain actions (including potentially the certificate, certification or voluntary codes, as described above).198 The possibilities for such simplification are as diverse as the national circumstances. For instance, in Mexico, some national experts agree that having the State involved in all ABS activities might create excessive inefficiency in ABS management.199 Thus, an element of the expedited procedure could include an exemption, under which the State's involvement in some activities might be limited. (For example, where a series of Access events are planned, it may not be necessary for the State to be party to every single access agreement.)200

4.3.1 Role of incentives in source-country legislation

For the source country, the most important question about measures such as guidelines and certification is how they should be applied legislatively. This raises a number of questions, including the following:

Specific issues can be noted with regard to the examples mentioned above. For example, the creation of a “voluntary certification” system can be confusing, when applied in source country legislation. In essence, such a system will not guarantee that anyone will comply with ABS legislation, although it may create an incentive for some users to comply. At the same time, if the source country declares that certification will be mandatory for all users of the country's genetic resources, they may face problems under many other legal regimes (trade, contractual, enforcement, etc.) as well as objections from countries whose participation in the certification system was conditioned on the fact that it was “voluntary.”

If the certification system is functional however (that is, if the system has found a mechanism that is highly effective and leakproof for confirming that the user has complied with the system standards, and for tracking products and controlling labeling), then the source country may be able to create a different incentive based on the certification system. Specifically, it can provide special streamlined procedures and other special arrangements for any applicant who is certified under the system, and who agrees that his actions will comply with that system.

4.3.2 Recommendations regarding monitoring and oversight

The first step in ensuring the CBD ABS principles can only be realized if Countries of Origin recognize their rights, powers and responsibilities, and clearly impose requirements on users through their own laws. Although only countries that are predominantly source countries have adopted ABS laws (giving them a strong position as compared with developed/user countries), the fact remains that fewer than 20 countries have adopted any functional or partly functional ABS regulatory provisions.

Clearly the problems inherent in ABS (definitions of genetic resources, problems of transboundary oversight) have prevented many countries from acting;201 however, it is not advisable for countries to simply wait for some external legislation to solve their problems. Despite the legislative problems, users continue to obtain, research and utilize genetic resources on a regular basis. Unless those uses are bound by appropriate laws and contractual provisions requiring necessary actions at the source country level, those transactions may well be “lost to remedy” in the event that user measures or international provisions are later adopted. However, if properly written, these documents may provide some interim protection, as well as a basis for oversight and monitoring by new mechanisms, at that time.

These time concerns are not uncommon and are shared by other international agreements including, most relevantly, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), and the Cartagena Protocol on Biosafety. Although there is strong national interest in both instruments, national implementation has either not started or has not been significant yet. Clearly, even if the international negotiations could be expected to completely replace the need for national legislation, it is not appropriate simply to wait for that day.

4.4 Additional concerns: flexibility and law

In ABS discussions at all levels, one common complaint voiced by user companies is the fact that ABS regulations are very difficult to comply with, and that different situations require special treatment, in part because, as discussed above, there are many areas in which ABS law is unclear, unreliable or undeveloped. Normally, however, law is perceived as firmly fixed because it must give certainty to all different categories of individuals who are governed by or who rely on the law, and also provide a basis for non-biased governmental action. Increasingly, however, a need to provide some level of flexibility is asserted. This is a problem, given that the values of legal certainty and non-biased application continue to apply.

This tension is very apparent in the history of the genetic resources issue. After the CBD created the concept of a property right called “genetic resources” and recognized it as (i) having value (see CBD Article 1), and (ii) being a sovereign right of the source country (CBD Article 15.1), there was an initial rush among countries to establish highly restrictive regimes. Thereafter, although pressures for flexibility and streamlining are strongly asserted,202 concerns about legal certainty for the source country have tempered most subsequent legislative development. The Bonn Guidelines address these issues through a series of provisions which are entirely voluntary. If this “voluntary” nature means that no applicant may be required to comply, this would mean that the Guidelines are completely flexible, but also completely uncertain. It also does nothing to aid governments in their goal of ensuring that the ABS system gives fair treatment to all users (and providers). However, the Bonn Guidelines focus primarily on access issues, and do not address the serious governance problems described in Chapter 2,203 especially the need for enforcement and oversight of resource utilization outside the source country.204

4.5 Flexibility through governmental reciprocality

One step that source countries can consider, as a means of finding an appropriate standard of flexibility in addressing post-access monitoring and oversight, is through the concept of reciprocality. By nature, however, reciprocality is a “double-edged sword,” since a reciprocality provision may require the user countries to provide only the level of oversight and protection that the source country provides. This might possibly mean that reciprocality would require source countries to adopt detailed and comprehensive oversight mechanisms, and then pray that none of their citizens decide to utilize any other country's genetic resources, triggering costly implementation.

However, a second option, without requiring mirroring, might be possible. A source country might consider adopting legislation under which special ABS procedures are only available for users operating under the jurisdiction of a country that has adopted certain measures. This approach might eliminate a common problem where applications had been refused, because the authorities felt that they did not have adequate guarantees or were uncertain of how exported material might really be used.

4.6 Case study: reciprocality in the Seychelles' draft ABS Law

The Seychelles constitutes a good example of a country for which oversight and control of users will be nearly impossible. The Seychelles is not primarily a “user” of genetic resources, and will probably not be able to build the level of infrastructure to monitor, test, or take other actions that impose restrictions on users. Its draft law, however, attempts to remedy these deficiencies, through the use of two kinds of provisions, legal mandates (basic user measures) and reciprocity. These provisions were included to give users and user countries an idea of the minimum that is expected from other countries in return for access and the right to use genetic resources.

These user provisions are very basic statements, however. In general, they simply require Seychellois who are utilizing the genetic resources of other countries to:

So long as these activities are required under the source country law, it is probable that they would already be required under general laws in the Seychelles, however, this reaffirmation provides a demonstration of the drafters' view of the minimum that source countries should expect.

For the purposes of access legislation, however, a much more important provision is that which addresses questions of legal reciprocity and unconscionable terms and conditions. In this connection, Article 36 of the draft law states that:

The provisions of this Part shall only apply in respect of the laws or other terms and conditions of access or utilization of foreign jurisdictions providing equivalent or reciprocal protections to those contained in this Part, and shall not be enforceable where any relevant terms and conditions are declared unconscionable.

Both clauses of this provision are of interest legally. First, the reciprocity clause appears designed to create an incentive for user countries to adopt “user measures.” In essence, it says that “if you don't protect our genetic resources from unauthorized exploitation, we won't do the same for you.” Presuming that other source countries (with larger genetic-resource industry and research bases) follow this example, such an incentive might indeed develop. At the same time, that clause suggests that all that user countries must do is provide three or four unenforceable single sentence mandates, in order to meet their responsibility under Article 15.7.

In addition, the second clause might be interpreted to be an authority to declare foreign law invalid another provision that might have negative reciprocal impacts, if a user country were to adopt and enforce it.

4.7 Enforcement and guarantee

In provisions of this type, however, it is important to have something more than a promise or expectation of compliance. Relatively few countries are able to demand and receive guarantees or security that can reliably protect their interest during the pendancy of the ABS agreement.205 Effective global governance of ABS, however, will clearly be dependent upon the adoption and implementation of relevant law and policy by national governments.

Ultimately, this issue will have to be supported by international action that provides source countries with reliable bases for monitoring, evaluation, determining where there is “complete non-compliance” (i.e., users who have not complied with ABS in any way), and taking action to promote compliance. In the meantime, reciprocity may be a useful first step. One of the primary advantages of this kind of simplicity is that it can be accepted by courts in user countries relatively quickly. If that happens it will enable source countries to build confidence in the overall system. Over time, as legislative reciprocity provisions become common and are proven to work, many of the more stringent and immovable source country provisions will be dispensed with. In essence, reciprocality would transform the implementation of the regime into a dynamic system where access would be further facilitated through a legal evolution. Obviously, such a provision should not overrule the authority to determine access.

Traditionally, it has been held that there is little provider countries can do to influence compliance outside their jurisdiction. The use of reciprocity measures may challenge this assumption.

4.8 Trade concerns

In modern legislative practice, any provision that limits commercial relationships across national boundaries should consider the possibility of trade-related concerns. Generally, a provision that does not restrict trade (that is, importation of commercial goods and services), but only places limits on foreign persons who want to buy a country's resources does not run afoul of the international trade regime (for practical reasons relating to each country's own interest in the sovereign/personal power to decide whether to sell and to whom).206 However, it is useful to briefly consider the possibility that a special privilege for some buyers could raise trade concerns.

This need is underscored, for example, by recent political negotiations in Mexico. The idea of introducing, in addition to the standard access procedure, certain expedited/simplified access procedures for nationals of jurisdiction where user measures have been adopted, was discussed within the environmental public sector in Mexico, during the deliberation of the Draft National ABS Law.207 In the end the Ministry of Environment was not persuaded due to misunderstandings over the exact limitations posed by international trade obligations and an over-dimensioning of the issue of discrimination.

Probably the most important trade provisions for ABS purposes are contained in the ITPGRFA, which establishes in Article 11 that:

11.3 Contracting Parties also agree to take appropriate measures to encourage natural and legal persons within their jurisdiction who hold plant genetic resources for food and agriculture listed in Annex I to include such plant genetic resources for food and agriculture in the Multilateral System.

11.4 Within two years of the entry into force of the Treaty,208 the Governing Body shall assess the progress in including the plant genetic resources for food and agriculture referred to in paragraph 11.3 in the Multilateral System. Following this assessment, the Governing Body shall decide whether access shall continue to be facilitated to those natural and legal persons referred to in paragraph 11.3 that have not included these plant genetic resources for food and agriculture in the Multilateral System, or take such other measures as it deems appropriate.

These provisions essentially threaten to impose a multilateral system if national efforts to increase access to ITPGRFA listed species are not sufficient. In effect, this is a reverse trade sanction, requiring countries to give access, even if this is not possible or desirable from their point of view.

A significant amount of interpretation will be required from the Governing Body since many aspects of the functioning of this mechanism are still unclear.209 Thus a full comparative analysis cannot be concluded at this point.

175 Young, 2006.

176 Id. and see Rosenthal, unpublished.

177 Carrizosa et al., 2004.

178 Cf. Ogolla, 2005.

179 Cfr Cabrera Medaglia, 2004, A Comparative Analysis.... Cfr Cabrera Medaglia, 2004, “Access and Benefit Sharing in Costa Rica...”.

180 As noted above, the CBD concept of ABS is based on the situation of a user from one country who utilizes genetic resources from another country.

181 Barber et al., 2003.

182 Casas, 2005.

183 Fernandez Ugalde, 2005.

184 However, as mentioned earlier, the assumption that ABS (creation, execution, implementation, oversight and compliance with ABS agreements) would be addressed by contracts and governed by national contract law is not necessarily correct. This statement is also valid for the assumption that ABS contracts can provide the legal means to monitor the use of the GR and to enforce the terms and conditions of the permits, see Young, 2004, “Legal Issues....”

185 Many issues relating to the negotiation of ABS contracts are addressed in Book 4 of this Series, Bhatti et al., Contracting for ABS.

186 For instance the agreement can make clear who will cover the cost. A specific contribution to the payment of the cost of the dispute mechanisms may be considered. Additional mechanisms such as insurance provisions in case of disputes may be explored, by which the insurance institution will pay for the cost of the process.

187 In this connection, it is noted that researchers at INBio do not routinely record publications citing INBio specimen numbers.

188 The report of the consultants who wrote this draft law is available from IPGRI. See Lettington and Dogley, 2006. Note: as of last report, this bill has not been approved by the Government of the Seychelles. It is offered as an example of one approach to some of the issues discussed below, but not as a political statement, nor as a “best practice,” nor as a recommendation that the draft be adopted.

189 See Young, 2006. See also Lettington and Dogley, 2006.

190 An additional discussion of this issue, from the perspective of user and user countries, is included in Book 2 of this Series, Tvedt and Young, Beyond Access.

191 Tvedt, 2006.

192 Young, 2005.

193 Cfr Glowka, 2001.

194 Glowka, 2001.

195 The BioTrade Initiative is looking for the development of a verification system for the natural ingredients sector. See BioTrade Facilitation Programme, Framework for the verification of BioTrade companies of natural ingredients, Working Document, Geneva, March 2006.

196 The need for guidance and orientation is evidenced by the guidelines and principles, in either final or draft form, developed by biotechnological organizations in the USA, Europe and Japan (in the latter case, in conjunction with the Japanese Trade Ministry).

197 This book does not consider the legal implications of this kind of action, the listing and delisting process, and the potential for harm to innocent companies that are mistakenly removed from the list, even if only for a short time.

198 A somewhat similar measure was suggested at the First Panel of the Experts of the CBD. However, it focused on the conduct of persons, not State acts, it only referred to voluntary instruments, and it only suggested simplifying the PIC procedures. See Report of the Panel of Experts, op. cit., Annex V.

199 Larson et al., 2004.

200 Allegedly, agreements are most likely to succeed when the number of parties is minimized. Particularly, some experts claim that having the State directly involved in the negotiation of benefit-sharing agreements results in bureaucratic hurdles that lead to inefficacies and high transaction costs, Larson et al., 2004.

201 Alternatively, many countries that have no ABS legislation in place might choose to wait for the outcome of the negotiations. Something similar happened regarding the Cartagena Protocol on Biosafety, where controls were delayed pending completion of the negotiations, providing an opportunity for many companies which strongly requested that they be given permission to introduce their products before any new laws are adopted. Young, “Access and Benefit sharing: In Search of an ‘International Regime,’ ” Environmental Law Programme Newsletter, IUCN, Bonn, 2004.

202 See, for example, the Bonn Guidelines and the documents that were provided during their negotiation.

203 Dross and Wolff, 2005.

204 Hodges and Daniel, 2005.

205 See Lettington and Dogley, 2006.

206 The often misunderstood relationship between the rules of the WTO (World Trade Organization) and MEAs has been on the international agenda for more than a decade. It arose out of a fear in the environmental policy community that the reasoning of a GATT (General Agreement on Trade and Tariffs) panel, in the infamous Tuna-Dolphin case (1991), threatened the rapidly developing international architecture of environmental protection. However, despite a considerable amount of attention in official intergovernmental processes – including, inter alia, the World Trade Organization, the Organisation for Economic Cooperation and Development, the United Nations Conference on Trade and Development and the World Summit on Sustainable Development – the debate about the appropriate parameters of this relationship persists without resolution. Cfr Tarasofsky, 2004. There has been no indication, however, that it will impose a duty to sell natural sovereign resources against national desires or interests.

207 C. López (one co-author of this book) led the legal position for the National Commission on Biodiversity, which regularly provides technical advice to the Ministry of Environment. The position of the Commission was coordinated with the National Institute of Ecology (through José Carlos Fernández). This coordination led to the common conclusion that there was a need to develop much simpler procedures that the ones being advanced in the Draft Law, which later derived in the proposed measure.

208 The Treaty came into force on 29 June 2004. Therefore, the review should take place before 29 June 2006 in theory. However, so far, this aspect has not been addressed.

209 For instance, it is not clear whether it is the State conduct or the private individual conduct what is subject to the review. Traditionally, only States acquire directly rights and obligations in international treaties. However, many recent treaties, including the ITPGRFA in other provisions, transcend and affect rights and obligations within the private sphere of individuals.

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