In addition to seeking to be precise about our use of terms that are sometime used imprecisely in ABS discussion, the authors in this part have sometimes found it necessary to focus specifically on particular types of parties and intergovernmental relationships (i.e., relationships between user country and provider country.) The following glossary reflects some of our most common usages1.
TERMS DESCRIBING THE ROLES OF VARIOUS PARTIES TO THE ABS CONTRACT:
|USER||Any person (individual, company, university, agency, national government or other entity) that is either:
|PROVIDER||One who provides genetic resources to the user. The exact nature of the provider depends on national law, it can mean:
|MIDDLEMAN||Any person or entity (collector, user or other) who is not a ‘provider’ or ‘source country’, but who has obtained and is passing on genetic resources to another person or entity (user or another middleman). A user who sells or otherwise transfers his materials and/or results to another user may also be a middleman. It is not clear whether middlemen should be considered to be ‘users’ or ‘providers.’ Some middlemen generate (monetary or non-monetary) benefits, not currently captured by the ABS system.|
TERMS DESCRIBING THE VARIOUS COUNTRIES, GOVERNMENTS AND AGENCIES INVOLVED IN ABS CONTRACTS AND THEIR IMPLEMENTATION:
|USER COUNTRY||For any particular ABS transaction, the country in which the user is based, undertakes its primary utilisation of genetic resources, whether such jurisdiction is due to nationality or because the user is utilising the genetic resources within that country's jurisdiction. In an ABS transaction there may be more than one user country.|
|SOURCE COUNTRY||For each particular ABS transaction, the country from which genetic resources originally were take, which have made their way to a user from a different country for purposes of ‘utilisation of genetic resources’ (as that term will be understood under the international regime). Any country may be a source country as to wild resources found in situ within the country or agricultural varieties developed there. (In theory at least, the determination of which country or countries particular resources originated in is a simple question of fact. Even if the original specimens have since died or disappeared, their progeny derive from one or more original sources. In practice, however, the tracing of the specific ancestry of particular plants, animals and micro-organisms is not a simple task, and may not be possible at all.) Unless it has transferred those genetic resources to another country ‘in accordance with the Convention’ (see Article 15.3), the ‘source country’ will be the ‘country providing resources’ under the CBD. (Note: Because the term ‘provider country’ is used by various users with completely different meanings, it will not be used in this book.)|
|COUNTRY OF ORIGIN||Any country in which the specific genetic resources in question can be found in in situ conditions.2 It is frequently noted that many species are found in situ in more than one country, but only one of these countries will be the source country. This concept can be important where a user does not know or will not disclose the specific country that is the source of genetic material he is using. The CBD appears to assume one of the ‘countries of origin’ will be the ‘country providing resources’ in most cases.|
|SECONDARYSOURCE||A country that has acquired the genetic resources from a ‘country of origin’ of the particular species, subspecies or variety in accordance with the CBD (Article 15.3.) A secondary source country meets the definition of ‘country providing resources’ under Article 15.3, and can engage in ABS transactions (including benefit sharing if it chooses) as to that species.|
|INTERMEDIATECOUNTRY||(in some legislation, called the ‘provider country’) Any country to which genetic resources are taken after they leave the source country, from which the resources are later transferred to a user, collection or other person or entity. Normally, this will be the country with jurisdiction over a user or middleman, where that user or middle man is transferring the genetic resources that were previously removed from the source country (a different country). It should be noted that benefit-sharing with a provider is required under ABS only where that source country is either (i) a country of origin, or (ii) a secondary source.|
TERMS DESCRIBING RELEVANT LEGISLATION APPLICABLE TO ABS CONTRACTS:
|PROVIDER-SIDE LEGISLATION||National law of a country which addresses the access to and utilisation of that country's genetic resources. The CBD does not directly require such legislation, however, the Bonn Guidelines note that it is much easier for users to obtain access to these resources where a country has clarified its existing laws and practices.|
|USER-SIDE LEGISLATION (or ‘USER MEASURES’)||The legal, regulatory or other measures adopted by a country to require uers of genetic resources within that country to engage in benefit-sharing with other countries that are the source country of the genetic resources. Technically, under the CBD, laws relating to transfer of GR and other actions by middlemen would be considered ‘userside legislation.’ (This term does not include measures of a country to require benefitsharing with the legislating country.) User-side legislation is specifically required (‘shall adopt’) of all CBD parties, regardless of whether they are developed or not.|
|CONTRACT AND COMMERCIAL LAW||Legislation, caselaw and recognised practises governing the execution, implementation and enforcement of contracts (including specific legislation covering particular types of contractual and commercial relationships), insurance and surety, and other commercial issues, as well as law and practice designed to
|PROPERTY AND OWNERSHIP LAW||All national law governing the rights and responsibilities of holders, purchasers and other users or all types of property, including land/real-property, mobile/personal-property, intellectual/industrial property, other intangible property. In addition, this term includes property law and ownership issues where the property has special public status, as national patrimony, government land, un-owned (claimable) land, etc.|
|SOVEREIGN RIGHTS AND INTERESTS||Although no legislation is required to create or exercise a sovereign right, many countries have adopted laws to determine the responsibilities of national officials and agencies in applying or protecting the country's sovereign rights. Most of this law is generic (i.e., not separately addressing each specific sovereign right or patrimony.) Such law is found in different forms in each country. Often it is part of the national constitution and other law empowering and mandating the roles of government; however it may also appear in substantive and sectoral legislation, particularly where these duties are assigned to regional or sectoral agencies.|
OTHER LEGAL TERMS USED IN THIS PART
Although we have tried to avoid using ‘legalese’ there are some legal terms which have helped us avoid long repetition. We have tried to keep these to a minimum. We note that these terms are probably not common to all legal systems, so we define them here.
|‘ABS CONTRACT’||In this book, the generic term ‘ABS Contracts’ refers to the overall group of possible instruments, including any agreement, license, permit, document or other arrangement, under which the user or his predecessor in interest acquires permission from the source country to gain access to, bioprospect for, utilise genetic resources and/or to share benefits arising from that utilisation, in exchange for other commitments. In some cases, a contract is believed by one or all of its parties to be an ‘ABS contract’ despite the fact that it does not use the term ‘genetic resources’ or refer to the concept.|
|ORGANIC LAW||The term ‘organic law, is a generic term to describe the basic instruments which determine how a country functions legally. These matters vary widely among countries and are generally unchangeable for ABS purposes – it is unlikely that a country will change its entire organic law to accommodate a few foreign parties to contracts. For many countries, the primary organic law is a national constitution or charter. In addition, other organic laws describe the authority of courts and enforcement officials, set the procedures for administrative action and licensing, and determine many other factors regarding the manner in which the various components of the central government and their ministries are organised, governed, financed and overseen. In federated countries, there is often an additional layer of organic law relevant to the provincial, state or other sub-national level.|
|RES||In law, this latin term refers to the main subject matter of a contract. This term is useful because it includes all types of contractual subject matter, i.e., different kinds of property (land, moveable property, intellectual/industrial property, intangible property), legal rights which one party has a power to grant or sell to another, services or other actions, mutual promises, etc. At present, it is not entirely clear what ‘genetic resources’ are – whether they are kind of property, a legal right or other some other interest. Consequently, we use the term res rather often in Part I.|
|SPECIES||Normally, the term ‘species’ is one of a suite of taxonomic terms describing particular levels of the relationship between each life form and other life forms. In ABS discussions, as in many international policy discussions on conservation instruments, it is common to use the term ‘species’ to mean any or all of the following: species, subspecies, variety or geographically separate population.|
|‘SUCCESSOR IN INTEREST’||is used to mean any person, entity or country who obtains a right or property from another person, whether by purchase, inheritance, gift, legal succession, confiscation, by operation of other granting language in a law or contract, or any other legally recognised transfer.|
The authors have made no attempt to resolve the more basic and difficult terminology problems, including the ambiguity regarding the meanings of the terms ‘genetic resource,’ ‘utilisation of genetic resource,’ ‘derivative,’ ‘benefit-sharing’ and ‘access.’ In addition, although terms such as ‘IPR,’ ‘sui generis system,’ ‘sovereignty,’ ‘sovereign rights,’ ‘property,’ ‘patrimony,’ ‘sovereign property,’ ‘government (or ‘crown’) property,’ already have well established legal meanings, they are either (i) subject to enormous variation among countries, or (ii) not consistently used or understood among CBD negotiators, focal points and implementing agencies.
Finally, a range of terms, especially ‘bioprospecting’ and ‘biopiracy,’ have become a form of CBD slang, used generally in discussions, but with fuzzy meanings which vary with the speaker. Occasionally, a countries may adopt one of these terms in its national law, giving that word a precise meanings for purposes of applying the laws of that country (only). This practice is very useful legally. It does not, however, impact the international usages of these terms, whether formal (which are few or none) or slang (which continue to multiply).
1 This ‘taxonomy’ of ABS participants is based on tables contained in Book 2 of this series (Tvedt and Young 2007). This is partly for consistency and partly because one of the authors of this book is very pleased with her work on the prior publication.
2 The CBD defines‚ in-situ conditions ‘to mean‚ means conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.’ CBD Art. 2.
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