1 Introduction: Looking Beyond Access

For over 16 years, the international community has sought to create and implement “access and benefit sharing” or ABS – a mechanism to address the roles of commercial entities and other developers of genetic resources as well as the roles of the countries and communities from which the genetic resources had their origin – in promoting critical environmental and social welfare objectives. This work grew out of several recent antecedents. In particular, in the late 1980s, the concept of a “common heritage of mankind” began to evolve into a more complex model, which recognized the sovereign rights of countries over their living and inanimate natural resources. Over time, however, it was recognized that users of those resources were able to obtain great value from them without significant return to the source country. Pharmaceutical, genetic modification and biochemical activities were thought to yield enormous profits, but their commercial development and marketing has been based on few specimens. As a result, source countries could not realize income from this use through bulk harvesting and sale.

The quest for a system that would provide an equitable return to developing countries in these situations was focused and coalesced into ABS, within the negotiations of the Convention on Biological Diversity (CBD),1 where it served two purposes. First, it was perceived to be a possible source of additional funds – always necessary for conservation. Second, it was seen as the quid pro quo of developing countries' acceptance of the Convention. Given that developing countries often bear the greatest burden in conventions relating to conservation, the equity component of the CBD was designed to place a balancing obligation on developed countries. Since 1992, the two elements of ABS, “access” and “benefit sharing,” have been formal commitments of all Parties. For the succeeding decade, however, it was assumed by many that source-country legislation and “ABS contracts” would be sufficient to implement these commitments.2 It was troubling, ten years later, to find that fewer than 10% of CBD Parties had adopted ABS legislation,3 and that virtually none of those claimed that their ABS arrangements were functioning effectively.4

In 2003, the ABS landscape again began to change, when the Plan of Implementation of the World Summit on Sustainable Development (WSSD) in Johannesburg emphasized that the CBD is “...the key instrument for the conservation and sustainable use of biological diversity and the fair and equitable sharing of benefits arising from use of genetic resources.”5 The Plan specifically included ABS as one part of its call for “a significant reduction in the current rate of loss of biological diversity,” calling on countries to:

(o)  Negotiate, within the framework of the Convention on Biological Diversity, bearing in mind the Bonn Guidelines,
      an international regime to promote and safeguard the fair and equitable sharing of benefits arising out of the
      utilization of genetic resources;
6

This political mandate was concretized by the seventh CBD Conference of the Parties (COP-7), when it mandated the Ad Hoc Working Group on Access and Benefit Sharing (the “AHWG-ABS”) to –

...elaborate and negotiate an international regime on access to genetic resources and benefit-sharing with the aim of adopting an instrument/instruments to effectively implement the provisions in Article 15 and Article 8(j) of the Convention on Biological Diversity and the three objectives of the Convention.7

The commencement of negotiations opened a new stage in ABS, giving the Parties a mandate to identify areas in which international decision-making can enable a functional ABS system. Thus, the goal is no longer to “make the best of what Article 15 says,” but rather to determine how an ABS system can be designed to function effectively.

1.1 Issues that need to be dealt with Beyond Access

“Access and benefit sharing” or “ABS” is, by definition, the fusion of two concepts which are politically and (to a very limited extent) legally or contractually linked. In general, “access” is perceived to be primarily the responsibility of the source country, source community or individual, while “benefit sharing” is founded on the user (private company or entity) to be made legally effective by the country with jurisdiction over that user.

A critical element of ABS is its trans-national nature. At least two countries are involved in every ABS transaction – a “source country” (from which genetic resources are obtained) and a “user country” (which has jurisdiction over the user).8 Even this statement is a severe oversimplification, as genetic resources often involve multiple uses, exchanges and activities – i.e., a particular utilization may involve many source countries and even many user countries. Article 15 does not include or even mention domestic access to or utilization of genetic resources; although, as a practical matter, it may be necessary for countries to regulate domestic utilization (at least in some aspect) in order to avoid gaps and “loopholes” in the regulation of external users. This means that there are a minimum of two distinct national legislative components9 to every ABS situation:

Up to now, however, even in countries with many users, most existing ABS legislation focuses on the provider side of the equation, given that “all countries may be both users and providers.” Few countries (developed or developing), however, have even considered adopting user-side measures. One impetus behind current “international regime” negotiations was the perception that users are not bound by ABS when they are outside the source country's jurisdiction.11

International guidance for user-side measures has so far been limited. To date, with the exception of a single sub-clause – paragraph 16(d) – among the 152 sub-clauses of the Bonn Guidelines, international ABS work has overwhelmingly focused on provider-side measures. ABS implementation objectives require that we now focus on user-side measures.

1.2 Objective and approach

This book, Beyond Access, seeks to analyze the application of ABS to genetic resources in the hands of users and researchers outside the provider country or country of origin. It considers a variety of measures and approaches, while keeping a focus on the CBD objectives – conservation and sustainable use – as the underlying rationale for development of this complex concept.12 It assumes that all Contracting Parties continue to support the objectives and obligations that they accepted in adopting and ratifying the CBD – focusing on achievement pursuance of the benefit-sharing objective through the adoption of measures:

with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources.13

Based on that assumption, we submit a technical legal analysis which presents and assesses the underlying policies and principles, as well as the obstacles, options and alternatives regarding the obligations of users and user countries, with the goal of creating a balanced and functional ABS system.

Chapter 2 discusses ABS commitments, focusing on user or “post-access” issues. Chapter 3 uses the Bonn Guidelines as a framework for considering the scarce body of existing measures on the “user side.” Chapter 4 analyses legal concepts as applied to user measures and demonstrates the legislative framework of user measures that would be needed in order to create a mandatory ABS system; while Chapter 5 considers the economic and social impacts. Based on the results of these analyses, Chapter 6 sets out options, approaches and recommendations; and Chapter 7 offers concluding remarks.


1 Preparatory Committee reports are no longer available in the CBD websites. For a discussion of the role of genetic resources as proposed at the time, see the Reports of the two meetings of the Intergovernmental Committee on the CBD (ICCBD), prior to its entry into force, see, “Report of the First ICCBD” (preserved as UNEP/CBD/COP/1/3, found online at http://www.biodiv.org/doc/meetings/cop/cop-01/official/cop-01-03-en.pdf), at paras 5, 6 and 31 et passim, and “Report of the Second ICCBD” (preserved as UNEP/CBD/COP/1/4, found online at http://www.biodiv.org/doc/meetings/cop/cop-01/official/cop-01-04-en.pdf), especially at pages 49–58. It is useful to note that these reports also set a high priority on addressing the problems and needs of ABS, expressing that priority in ways that are nearly identically to more current statements of those needs.

2 See, e.g., Reid et al., 1993; Glowka et al., 1994; Glowka, 1998. All of these commentators noted confounding issues in ABS, but felt them to be surmountable obstacles.

3 The 10% statistic is drawn from the CBD's Database of ABS Measures, at http://www.biodiv.org/programmes/socio-eco/benefit/measures.aspx. A total of 29 countries and three regional bodies have submitted a total of 95 measures to the database, twenty-seven of which are either “strategy” or other non-binding instruments. Of the remaining 68 measures, two are drafts and 28 contain authorizations to regulate, but do not include specific regulations clarifying the process of obtaining access to genetic resources. The remaining 38 instruments come from one region and 19 countries. They contain adopted, implementable, legal, regulatory, or other measures that apply as law to ABS matters within their country. Some of these, however, are controls on access to “biological resources” – a much broader concept than “genetic resources,” as discussed in 4.1.1. None of them require users in their country to share benefits arising from the use of genetic resources with origin in other countries.

4 The exception to this comment is Queensland, Australia, whose 2004 Biodiscovery Act is highly touted by its government as being an effective mechanism. (Geoff Burton, Presentation to the High-level Experts Meeting: Addressing the Access and Benefit-Sharing Challenges in the Context of the Convention on Biological Diversity (Tokyo, 8–9 February 2007) and other remarks in that meeting.) Like all other currently existing ABS legislation, however, this Act does not include “user-side” measures as discussed in this book. The inability of any country to claim a legally functional system was intensively discussed in the Global Biodiversity Forum 2000, in Nairobi, preceding CBD COP-5. Governmental representatives of the countries and region with the longest standing legislation – e.g., Costa Rica (whose ABS forerunner legislation was originally adopted before the Convention), the Philippines (1995), and the Andean Pact (1996) – have generally admitted that their legislation does not operate to impose mandatory controls nor to enable oversight or verification of any parts of their ABS permissions. In addition, the non-functionality of current legislation became a primary reason underlying the call for the “negotiation of an international regime on ABS” in the WSSD Plan of Implementation (2002).

5 Johannesburg Plan of Implementation Article 42.

6 Johannesburg Plan of Implementation Article 42 (o).

7 Decision by the COP-7, UNEP/CBD/COP/7/21, VII/19 D p. 299.

8 The concept of the “user country” was not fully discussed in the CBD. The Bonn Guidelines consequently did not initially address the user countries, focusing instead on the “user” (company or individual) alone. As finally adopted, however, they include some references, using clearer terminology: “Contracting Parties with users of genetic resources under their jurisdiction.” At para 16(d).

9 The CBD's provisions call for ABS to be implemented through national legislation. None of its provisions are written in a way that would allow them to be self-executing at the level of individual contracts, or to be adopted into national law by reference. Indeed, since international agreements between countries state what countries must do, they do not usually contain provisions that an individual or contract could rely on as law. They can only be applied through the law of a country. (This is so well understood in law, that most legal treatises do not state it. One source to review on this point might be Shany, 2003 at 29–74.) It is possible to create “self-executing conventions” – that is, conventions which do not need additional national law once the country accedes – but these are very different in nature. In essence, such a convention would include relevant code-style provisions directly, so that in becoming a party to the convention, a country automatically adopts the code contained in the law. (See, e.g., UNCITRAL's Convention on Contracts for the International Sale of Goods (Vienna, 1980), which is expressed in code form. Application of the UNCITRAL international contracts instruments is considered in Bhatti et al., 2007, the fourth book in this Series.) Normally, countries become party to self-executing conventions with difficulty, owing to underlying sovereignty problems. Most legislators and sovereigns are unwilling to allow foreign governments (individually or collectively) to dictate laws binding within their jurisdictions. Particularly with natural resources, given the rule of national sovereignty over natural resources, the international community has not yet adopted measures that can be “self-executing.”

10 Source-country measures are described in another book in this Series – Cabrera and López, 2007.

11 These matters were discussed in detail in Johannesburg, where one primary element of the debate was whether the Plan of Implementation should call for a “binding regime” or, as ultimately decided, only call for negotiation of a “regime,” leaving the question of its binding nature for further discussion.

12 The problems experienced in the first 16 years of the CBD demonstrate clearly that ABS would not have been adopted as a commercial measure alone. It must therefore be implemented as a component of the CBD – i.e., in a manner that contributes to conservation of biological diversity and its sustainable use, while promoting equity.

13 CBD Article 15.7.

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