The issue of “access and benefit sharing” under Article 15 of the Convention on Biological Diversity has, throughout the past 16 years, offered both a challenge and an opportunity. Of these, perhaps the most important is the opportunity – to find a way to promote long-term global objectives of conservation, sustainable use and social welfare through the use of modern technologies, markets and commercial incentives. The challenge, however, is massive – to develop and agree on legal mechanisms, methodologies, and specific policy approaches to concretize this amorphous concept and give it legal and practical reality, and most important enable it to achieve those objectives.
One of the greatest areas of disconnection in this process relates to the role of the so-called “user country” – that is, the country whose jurisdiction includes companies and other entities that are using genetic resources from another country. In each transaction, the user country has a particularly important role in the development of coordinated governmental (legislative, policy or administrative) measures to complement the law and practices of the “source country,” as a means of ensuring, first, that benefit sharing occurs and, second, that it satisfies the letter and spirit of Article 15. The limited extent of “user measures” has been a source of controversy, with some OECD countries indicating that no additional legislation is needed, while many source countries and NGOs argue that without additional measures the ABS systems cannot function as a commercial mechanism.
This book is intended to offer a basis for evaluating and elaborating either of these views. It discusses:
the role of user countries in the ABS processes;
the existing user-oriented legislation currently in place;
the manner in which ABS principles and concepts can be interpreted and applied to the development of the user side of ABS; and,
(perhaps most important) a variety of recommendations and options about how user-oriented measures can promote ABS objectives, including by creating incentives and other features that make the system attractive to the users themselves.
All CBD Parties are required under Article 15.7 to adopt user-side measures – this is a basic principle underlying the work of this book. In the end, such measures are potentially of significant value to the user and to the country in which the user operates as well. The Bonn Guidelines negotiations were heavily laced with frequent and detailed comments about what users need and why users are not complying with ABS requirements. Ultimately, those guidelines are overwhelmingly focused on the “access” side of ABS and questions of what source countries and communities can/should expect from ABS. Consequently, they ignore a critical fact: It is not enough to say that the law must impose additional requirements on users. It is essential that all such measures must be integrated into existing commercial and industrial laws and institutional systems. In particular, the question of quid pro quo (i.e., what is given in exchange for what is received) at the transactional level has been ignored.
In the CBD negotiations, the quid pro quo between the negotiating countries was clear. Nationally, countries committed to enabling access to genetic resources (a commitment sought by developed countries on behalf of their research and industrial sectors), and in exchange for developing countries' agreement to this commitment, developed countries agreed to a second commitment – to develop a mechanism for sharing the benefits of the utilization of genetic resources with the country of origin. In essence, both groups received a desired objective, in exchange for committing to one for which they have less desire.
In national implementation, however, the idea that participation in this program should yield benefits has been ignored. At present, the provision of “access” has not yielded any significant benefits to the access provider at the level of national implementation; while the compliance of users with benefit sharing is infrequent, in part because users feel that they do not receive anything of value in return for their compliance. While provider countries, stakeholders and NGOs seek to impose stronger requirements, sanctions and other measures on access to genetic resources, users (especially researchers and others directly collecting resources in developing countries) bear the brunt of the failure. These user burdens include the possibility of high-profile claims of “biopiracy,” but also less known burdens. For example, the provider country may impose limits on the materials that the user can confidently use. It is increasingly possible that other users may express doubts about the provenance of genetic materials at the time that materials and research are being transferred.
The expectation that source-country legislation can provide what the user needs (or protect the source's rights) seems to be misplaced, given that current approaches to ABS arrangements (i.e., ABS contracts and/or ABS permits), benefit sharing, and the other ABS implementation concepts are based on contractual, property and other commercial actions and legal constructions. Expecting the source country to develop measures that improve the situation for the user is essentially asking the seller to give up many negotiating points before he knows who the buyer is, which property is to be sold, what kind of sale it is, the terms of payment, etc.
User measures, including measures clarifying the relationship between the source/origin country and the user and user country, can enable the user country to address some of the user's concerns, and especially to find a way that ABS compliance can provide some positive result for users that will balance the costs of compliance (in the form of money, goods, services and opportunities paid in benefit sharing, but also in the additional time, manpower and money involved in complying with ABS regulations and requirements).
This volume addresses the balance in this quid pro quo of users and providers of genetic resources.
Morten Walløe Tvedt
Tomme Rosanne Young
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