In conclusion, we return to the basic purposes that led to the writing of this book. The CBD objectives are essential international priorities, linked to the long-term well-being of the planet and the more urgent needs to alleviate poverty and promote sustainable improvement in the areas of health, food security and international equity. Biotechnology and modern development are critical elements of achieving those priorities. When fed with access and the rights to utilize micro-physical material and genetic information, these commercial motivations can create a broad range of benefits that can be used to further fulfill both environmental and developmental objectives. Mechanisms such as technology transfer, repatriation of information and capacity development can also be fuelled by a burgeoning market in biotechnology, if that market is also inexorably linked back to the goals of conservation and sustainable use. The CBD is somewhat unclear about the mechanisms by which this linkage and support will function, but it clearly envisions that ABS shall provide both benefit and incentive elements.
In the past 15 years, however, the specifics of how ABS will function, and how it will serve those primary objectives have been subjects of long debate. This book has provided a basic analytical pathway to help enable countries both to recognize the reasons why it is in their best interests (individually and collectively) to implement Article 15.7, and also to provide a legal basis on which they can take initial actions toward the goals of
(i) satisfying the requirements of due process of law (eliminating ambiguity and inconsistency that would make a law unenforceable) within their own country; and
(ii) enabling rational interaction of user-country laws with source-country ABS laws in each transaction.
The lack of national examples and experience in the area of user-side measures has prevented us from making a full set of final conclusions on these points. However, based on the application of primary legal and legislative standards, as well as the existing body of commentary, data, analysis and opinion on ABS, some of our conclusions are very clear.
First, we note that all countries are required to adopt user-side measures under CBD Article 15.7. Unlike the CBD's requirements on the provider-side (access), Article 15.7 does not specify particular actions that must be taken, but specifies the results that must be achieved – “sharing in a fair and equitable way the results of research... and the benefits arising from the...utilization of genetic resources.” Although the Bonn Guidelines provide a list of user-side measures that might be useful in satisfying Article 15.7, these are not the only options. If they are not successful in achieving the required results, then other measures will be needed.
Second, we conclude that no country has successfully adopted the primary user-side measures that are necessary – that is, a basic provision requiring users under their jurisdiction to fairly and equitably share benefits arising from their utilization of genetic resources with origin in another country. Virtually none of the user-side legislative requirements set out in the Bonn Guidelines have been adopted in any country.
Third, we note a primary need which can be thought to underlie the complete failure of countries to adopt user-side ABS legislation – the lack of a unified, internally consistent framework to clarify the key definitions and triggers of ABS obligations. While recognizing the difficulty of developing such a framework, we suggest that it is possible to extract the first elements of a functional framework out of the language of the CBD, and have offered a set of elements around which functional national implementation could be constructed:
“genetic resources” – a meta-concept which incorporates certain characteristics of each species, whether obtained and utilized directly (by obtaining samples and specimens) or indirectly (by utilizing information, such as gene sequences, biochemical formulas and other unique properties of the species). They represent a right which is not obtained with the specimens but must be agreed to by the source country. Genetic resources are not externally or objectively determinable by looking at the resource, because the potential to use genetic resources is present, to some extent, in nearly every biological specimen.
“utilization of genetic resources” – an objective concept that can be verified by inspection, reports, results and other externally determinable factors. One who engages in the utilization of genetic resources triggers the application of ABS user-side measures with regard to those activities.
“benefits arising” from the utilization of genetic resources – another objectively verifiable concept that constitutes the “second trigger” of user measures. When benefits arise from utilization, the user becomes fully obliged to share a fair and equitable percentage of those benefits.
While none of these three is simple to adopt or to apply, they can be interlinked together to form an internally consistent framework for user-side measures that will arguably address the full range of situations to which Article 15 is intended to apply. They will also provide a basis for implementation of other genetic-resource-related commitments of the CBD, including the genetic-resource components of technology transfer, capacity building, biotechnology opportunities and biosafety implementation.
Fifth, the issues of valuation and equity in ABS are still rather dark and murky waters, legislatively. While significant inquiry into these issues has been conducted and is ongoing, their role in legislative implementation has largely not been discussed. Their most significant application is in the area of user-side measures – oversight of compliance with ABS contracts and with the broader obligation to share benefits.
Sixth, one of the most important gaps that prevents further progress toward ABS functionality is the loophole by which users who do not know or disclose the source country of the resources they are using are not required to engage in any benefit sharing or substitute activity. Even more than the practical unenforceability of ABS contracts, the failure to adopt user measures to close this gap has rendered ABS a very ineffective system, and closed many options for increasing its effectiveness.
The near total lack of existing national user measures (that is, a country's legal, administrative and other measures to address the responsibilities, rights and needs of the users of foreign genetic resources who are under the country's jurisdiction) has prevented the preparation of a “best practice” analysis, but given rise instead to a discussion of the primary elements that would be necessary to meet the requirements of Article 15.7 and the Bonn Guidelines. At a minimum, those requirements seem to call for either
(i) provisions that impose a benefit-sharing obligation on all users of foreign-origin genetic resources, including those who have not obtained an ABS contract, or who have obtained the genetic resources from some third person, outside of the country of origin; or
(ii) incentive/motivation measures that are sufficient to engender a high level of benefit sharing by users seeking to obtain the incentive or advantage.
If the latter measures are sufficiently strong, they may eliminate the need for mandatory measures entirely. Even in that case, however, the user-side legislative process will not be cost-free, as there will still be a need to oversee the incentive measures to ensure that they are only available to users who comply with ABS requirements.
Mechanisms for the user-side implementation of ABS have been proposed and may be useful in future, but will not create an effective regime, unless and until countries adopt a basic framework of user-side measures. In the meantime, it is inappropriate for developing countries to repose confidence in disclosure requirements or in certificate systems that are not linked to implementation or enforceable benefit-sharing commitments. WIPO and the CBD discussions seem to give too much attention to these tools, given the stage of the current negotiations. Pending agreement on the objectives of the negotiations or on the manner in which the ABS framework should be conceptualized, disclosures and certificates will constitute, at most, permissive and unverified voluntary statements.
There is hope that the current ongoing CBD's negotiations of an “international ABS regime” may result in concrete and usable outputs. One strongly desired result could be the Parties' adoption of agreed interpretations of key terms. The negotiations might also develop structures for collaboration between each user country and source country in a variety of areas, including
oversight of users;
data collection and control;
application of trade-secret protection pursuant to which users could confidently provide critical information that enables the ABS system to function as a transparent market, in which all parties have reasonable expectations;
development of bilateral agreements and relationships to aid users seeking access to genetic resources;
and other matters. These results might in turn produce enough regime-wide specificity to enable the creation of formal mechanisms, such as certificates designed to address particular information needs of the regime.
Another possibility, however, is that the negotiations might simply adopt a process for longer-term regime development, and authorize the creation of certificates and other tools when the need for them arises. It is also possible, however, that the negotiations will result in even less concrete outputs, thereby returning the responsibility to the states to develop national legislation and engage in the slow process of adjustment by which all countries' various approaches will eventually become inter-operable.
There is one final question that must be addressed: Why would any country would adopt user measures? Essentially, as viewed independently in each country, user measures appear to require the country's industrial and research communities to pay money to other countries. This may be politically difficult to “sell” to legislators within any country, and may constitute a major disincentive preventing legislators from adopting real user measures. Accordingly, it is essential to enunciate the rationale for CBD benefit- sharing legislation, from the perspective of the user country and commercial and market interests.
Ultimately, there are multiple rationales which are all equally valid. Countries which may not be able to exploit these resources themselves bear all significant costs and missed opportunities in protecting their biodiversity. These sacrifices would be compensated by those who exploit those resources in new ways and who would not otherwise recompense any of the environmental and conservation costs. The most practical expression of the reason for taking this step, however, was enunciated by the European Commission:
The issue of ABS is potentially a win-win situation for trade and environment since benefits arising from the commercial use of genetic resources can be used to foster the protection of biodiversity and since the expectation of such benefits is an incentive to conservation.413
In the same way, the adoption of user-side measures by all CBD Parties and non-parties would be a win-win situation for users of genetic resources. User-side measures can provide a balance in ABS which is currently heavily weighted (and sometimes myopic) in addressing only the interests of the source countries and providers. User measures can increase the confidence of source countries, enabling them to streamline and regularize their ABS processes, decreasing the regulatory burdens that currently oppress researchers and the small percentage of genetic resource users who obtain those resources by bioprospecting in source countries.
413 EC, 2003.
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