Manuel Ruiz Muller1

Under the Convention on Biological Diversity (CBD), a global international legal regime on access to genetic resources and benefit sharing (ABS) has emerged over the past decade or so. ABS legal instruments of different kinds and features, including international agreements, international guidelines, codes of conduct, regional and national laws and Conference of the Parties Decisions, have been developed.

To be effective and ensure CBD objectives are realized, this ABS regime requires appropriate compliance and enforcement mechanisms. A law or a regime which lacks these will have very limited chances of having practical impact, in the sense that obligations can, given the circumstances, be forced upon those legally bound by them through administrative or judicial actions.

In the context of the CBD and the international regime, these laws and regulations basically lay out the conditions in which genetic resources may be accessed, used and benefits shared. In exercise of their sovereign rights, countries have invested considerable time and effort in designing and developing legal instruments with the goal of ensuring that their economic, social, cultural and political interests in genetic resources are appropriately reflected and safe-guarded.

As a key component of the ABS legal regime, as it is currently conceived, contracts (including Material Transfer Agreements – MTAs) have emerged as the preferred legal tool under which a series of rights and obligations are agreed between those providing genetic resources and using them. Whether contracts between the State and an applicant or user of genetic resources (another State, a private or public institution or an individual) and/or between these and a provider of genetic resources (a State, a private or public institution, an ex-situ conservation centre, indigenous or local communities or an individual), contracts define issues such as subject matter covered (scope), benefit-sharing obligations, regular reporting requirements, duration of the agreement, liability and infringement measures, choice of jurisdiction, among others.

As useful as contracts are, in the specific context of the international legal regime on ABS, countries (especially countries of origin or those providing genetic resources) are finding it exceedingly difficult to ensure that (a) this international framework assists in safeguarding their interests in genetic resources, especially once these resources cross national borders, (b) obligations in contracts can be fully imposed on the user of genetic resources and contract compliance verified, and (c) closely related to these, practical and cost-effective tracking and monitoring mechanisms allow countries and institutions to remain comfortable in knowing genetic resources are being used as agreed.

Realizing the benefit-sharing objective of the CBD depends considerably on these possibilities. Some progress is being made in this field, particularly with discussions regarding the role and objectives of a certification of origin and legal provenance regime. Increasingly the certificate concept seems to have become a technically viable, albeit still debated option, which is under consideration not only in the CBD forum, but in other international forums such as the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO). This option would involve creating an agreed “standard certificate” and calling on all to use it as a means to identify geographical origin or source of genetic resources and to ensure valid rights for uses of genetic resources (and possibly of derived products) by those receiving them, as these move along the value-adding chain and research and development processes (including during patent-application processes).

Countries and institutions, especially research centers, are still concerned that there needs to be a simple way to “see” how genetic resources and derived products are moving and flowing, and verifying whether these movements, uses and applications being given to them, comply with original (or subsequent) conditions imposed in contracts under which they were transferred.

A Moving Target: Genetic Resources and Options for Tracking and Monitoring their International Flows offers a first glimpse at some of the key policy, legal and technical issues surrounding tracking and monitoring of genetic resources, especially as they travel across national borders and among institutions in different countries.

This publication seeks to find answers to two basic questions: 1) is tracking and monitoring of genetic resources possible? and if so, 2) what are some of the main policy, legal, technical and practical challenges associated with tracking and monitoring?

For this purpose, seven experts from around the world have undertaken research on these questions and offer some guidance and recommendations as to how to advance discussions on this issue.

Chapter 1, “Tracking and Monitoring the Flows of Genetic Resources: Why, How and, Is It Worth the Effort?” was prepared by José Carlos Fernández Ugalde, from the National Institute of Ecology in Mexico. This chapter describes some of the key legal, policy, technical and practical issues concerning tracking and monitoring, and offers readers a general approach and possible answers to some of the questions related to these. In particular, this chapter focuses on the concept of “certification of origin and legal provenance,” analyzes some of its practical implications and proposes some options as to how to develop a workable certification regime.

Chapter 2, “Transaction Costs of Tracking and Monitoring the Flows of Genetic Resources,” was prepared by Derek Eaton and Bert Visser from the Wageningen University and Research Centre. Eaton and Visser focus their analysis on the problem of tracking and monitoring the flows of plant genetic resources for food and agriculture in particular and the complexities of transaction costs surrounding this effort. These authors argue that, at least in the special case of plant genetic resources for food and agriculture, the issue of costs of a tracking and monitoring mechanism and placing these costs on the user of these resources, could have a considerable impact on research, use and overall much needed flows of these resources.

Chapter 3, “Reflecting Financial and Other Incentives of the TMOIFGR: The Biodiversity Cartel”, presents an innovative and controversial approach to addressing ABS, proposed by Joseph Vogel, of the University of Puerto Rico. Vogel argues that the bilateral, contractual approach stimulated by the CBD and reflected in the current international regime on ABS is basically flawed and that a new approach, based on economic theory, needs to be considered as a means to support countries' efforts in securing their interests in genetic resources (including in respect to tracking and monitoring). In the context of a biodiversity cartel proposal, Vogel suggests that tracking and monitoring are an element and requirement which will ultimately assist in the development and operations of this cartel.

In Chapter 4, “Challenges Ahead: Legal and Practical Prerequisites for the Development of a Certificate of Source, Origin or Legal Provenance for the CBD,” Tomme Young, from the IUCN Environmental Law Centre, presents some policy-, legal- and economics-based alternatives and options to address the issue of tracking and monitoring. Young undertakes a detailed analysis of the viability and practicality of using certificates of origin and legal provenance as a means to support CBD implementation and address benefit-sharing, tracking and monitoring aspects of the CBD.

Finally in Chapter 5, “A Proposal on International Audits to Track and Monitor Flows of Genetic Resources and Verify Compliance with ABS Agreements,” Manuel Ruiz Muller and Isabel Lapeña, from the Peruvian Society for Environmental Law, develop a conceptual proposal under which random audits on projects which imply accessing and using genetic resources are agreed internationally (by the COP of the CBD or the Governing Body of the FAO International Treaty on Plant Genetic Resources for Food and Agriculture). They propose that these audits or valuation exercises could be undertaken by an ad hoc group of experts or a specific task force, which could offer policy makers, public officials, ABS focal points, and the public in general, information which is based on tracking and monitoring genetic resources of specific projects. This may assist countries in developing an operational international regime on ABS where compliance and enforcement are the main elements.

Tracking and monitoring the movement and flows of genetic resources around the world has not received much attention over the past few years, in comparison with other ABS-related issues. Only now that it is becoming clear that the international ABS regime needs to address in much more detail, and with much more attention, issues of oversight, compliance and enforcement, have tracking and monitoring appeared on the agenda and caught the attention of experts and policy makers.

This publication and the inputs provided by the different contributors (chapter authors) will hopefully provide fresh, practical and workable ideas that may assist Parties to the CBD (and by extension the ITPGRFA) in their efforts to continue building, strengthening and consolidating the international ABS regime and, ultimately, to comply with CBD principles and the realization of the CBD objectives.

1 Manuel Ruiz Muller is Director of the Program of International Affairs and Biodiversity of the Peruvian Society for Environmental Law (SPDA), in Lima, Peru.

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