Inevitably, although this book is intended to address national implementation rather than simply adding another to the huge volume of expert opinions on what should be done in the international regime negotiations, in the end our conclusions necessarily focus on some issues which appear to be resolvable only through those negotiations.
National ABS legal systems need to restate some conceptual basic aspects to be consistent and functional. The lack of reflection on the scope of certain concepts or on the need to consider the effectiveness of applying the contract and property rights law, consequently hinder the implementation of ABS systems. To date, the studies on this matter are scarce, as are the legislative attempts to tackle these conceptual aspects. Among the conceptual elements to be studied, those of genetic resources, derivatives, biological resources and utilization stand out. One key conclusion is the need for an integrated approach to these concepts and a reconsideration of the use of conventional mechanisms (property, contracts) to put into effect ABS regimes.
Although these topics must be dealt with at a national level, it is necessary to give legal consistency to the ABS systems, international understandings in these matters, in order to support the national efforts. In this sense, the negotiations of the IR are a framework to resolve and to find solutions to some of these problems.
It should be indicated that although resolving these aspects is critical, for the operation of a system of ABS, there exist other operative basic problems that are equally important. Among them: the capacity to negotiate; political will; and the lack of confidence between different stakeholders.
Despite the lack of understanding of some basic topics, some countries have started implementing their national laws. This demonstrates that national measures need to be strengthened.
The efforts of provider countries will probably continue to reflect the insufficiency of unilateral national legislation to regulate ABS, until countries have adopted user measures under which they commit to require and promote their own companies and ex-situ collections to engage in benefit sharing with source countries, and apply those provisions, including access to justice, in the cases of non-compliance of contracts or illegal access.
Clear criteria should be established with regard to the differences between access for basic research and for commercial purposes.
With regard to property rights over genetic resources it is necessary that these are addressed at the national level and, at the same time, that the difficulties to apply traditional concepts of control and exclusion in the case of the genetic information contained in the samples are recognized. The clarification of the implications of the public domain concept in relation to the rights granted to the bioprospector is also a key aspect to provide legal certainty.
Providing countries should establish clear, simple and transparent systems of ABS, including those relative to the PIC. Any flexibility in the ABS process can be conditioned to the existence of user measures which would be compatible with the international trade system.
The incentives which provider countries can reasonably give to encourage compliance, such as faster approval procedures, reduced application fees and special status for those who demonstrate compliance with ABS regimes, must be explored.
Finally, although legal studies and analyses are necessary for this to happen, we feel that the most important objective is that the result should focus on practical solutions that offer legal certainty while protect the rights of the providers.
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