The primary conclusion of The ABS Project is that many legal and practical questions that are critical to the success of the regime are still unanswered and cannot be answered without further analysis, even after 16 years of ABS, and untold hundreds of ABS-focused books, articles, case studies, presentations, guides and guidance documents. It is clear that further international discussions
are necessary to resolve these questions. The Parties' ability to take and defend policy positions in these negotiations is seriously compromised by the lack of comprehensive legal and policy analysis of these issues and the various options and approaches available.
The ABS Project and this book are intended to identify some of the areas in which further study, analysis and explanation are needed, both to support the negotiations and to enable legally functional implementation of ABS at national and international levels.
Accordingly, this final Chapter provides a brief list of the most critical issues for further intensive analysis in preparation for the international regime negotiations.
A number of critical unanswered questions obstruct national implementation of ABS. The failure of the Parties to specify or develop an international consensus on these topics places heavy burdens on each legislating country. To create a regime that functions through the legal systems of 189 countries, even when issues, contracts and resources cross national boundaries, it will be important to answer a series of critical questions, including the following:
How does access link to benefit sharing? There remain many questions and controversies regarding whether ABS applies only to users who engage in in-country bioprospecting, or also includes other persons who use or obtain benefits from genetic resources of foreign origin that were acquired in some indirect way.
What is the agreed coverage of ABS and how can it be clarified through and coordinated with definitions and descriptions of key concepts? Terms of concern include ‘genetic resources,’ ‘utilization of genetic resources,’ ‘benefits arising from the...utilization of genetic resources,’503 ‘access,’504 and other terms not found in Article 15, such as ‘misappropriation of genetic resources,’ ‘derivative of genetic resources,’ ‘transfer of genetic resources’ and such other terms as might be used to clarify the coverage of the system.
Can the experience of the ITPGRFA (the use of a separate agreement for specific subject matter or specific activities) be reasonably applied to other sectors? This asks whether it will be possible for the Parties to divide all genetic resources and GR-related activities into functional categories, carving out some resources for special treatment; and explain which of the CBD's ABS principles continue to apply to a subject-specific instrument of this type, and how they are integrated with that instrument.
Is it possible to build a system based on the identification and tracking of particular genetic resources from its source? Problems of tracking genetic resources and/or linking them to particular products and benefits arising from them are particularly difficult. In order for the current paradigm to be legally effective, it will be essential to overcome this particular obstacle in a manner that can be externally verified.
Apart from these, a number of other mechanism and system issues, discussed in greater detail in Book 2 of this Series, should also be decided:
What kind of ABS mechanism should apply when the source country is not known or disclosed?
What standard or mechanism can be used to determine whether a user has complied with the law of the source country?
What mechanism can be used to facilitate coordination and communication between the user country and source country vis-à-vis the access to and use of genetic resources and the oversight and enforcement of benefitsharing obligations?
How will the regime deal with the transfer of resources?
How can the ABS framework be responsive to changes in the fast-growing field of biotechnology that may affect it?
How can the regime address the governmental need for transparency without compromising the commercial entities' and researchers' needs for confidentiality regarding their commercial dealings, research, trade secrets, and other matters?
Where there is doubt about a transaction, what is fair and equitable benefit sharing?
Once it is clear what ABS will cover, its success will depend on the ability of the regime developers to ensure that the regime takes advantage of and is compatible with (or at least does not clash with) the practical factors, motivations and incentives that underlie the activities of the users, user countries, researchers, providers, source countries and international entities directly involved in the ABS contract system. It must also coordinate or use the objectives and desires that can motivate communities, NGOs, activists and others to support and promote legitimate, permitted use of genetic resources.
To date, nearly all discussions of ABS focus on compelling compliance, by adopting legal provisions requiring the user (and private provider, if any) to take certain actions. As discussed in other parts of this Series, legislative approaches imposing direct mandatory requirements on users who do not have a strong desire to comply can be effective only where it is possible (i) to closely oversee the regulated users, (ii) to identify violations and potential violations and compel violators to comply with their responsibilities, or (iii) to obtain clear documentation of purported violations (evidence must be of a type that is appropriate and sufficient to enable a fair decision by a court, agency or alternative dispute resolution process).
If the government(s) cannot oversee regulated entities and actions, and document/act against violators, then a direct mandatory system cannot work without assistance. In that case, success will depend on providing regulated entities with some desire to comply. This desire, if it exists, will operate as a complement with the mandatory provisions. The balance between mandatory and motivational elements of a regime can cover a wide range of options – from mostly mandatory to completely voluntary. In all cases, however, the extent of regime functionality will depend on the strength of the motivations involved.
To date, a great many of the proposals that have been discussed for ABS either do not consider the motivational element or identify very weak motivations as a reason for ABS compliance. For example, many proposals suggest that the primary motivation which will cause users to comply with ABS is the ability to gain access to genetic resources and/or traditional knowledge. Unfortunately, this is a very weak incentive, given that nearly all biological samples can be collected legally, giving the collector the ability to obtain and study their genetic information. Similarly, it is not possible to control ideas – no matter how many people hold a trade secret or a piece of traditional knowledge or a bit of research data, it will take only one person to break the secrecy. Once an idea or a bit of genetic information is known outside the control group, its commercial value is lost.
Another type of motivation that has been proposed is that of goodwill – that is, the public (consumers of the user's product, donors and others) will view the user in a more positive way, because the user is known to comply with ABS requirements. Given that the ABS concept has proven to be extremely difficult to understand, goodwill seems unlikely to provide sufficient motivation to encourage users to comply with a requirement, when they know that the requirement cannot be enforced and that violations cannot normally be documented or proven in any way legally.
As it is currently envisioned, then, the ABS regime provides only three motivations for user compliance:
Users and user companies that believe that ABS compliance will enhance relationships with their suppliers of raw material will be motivated to comply. Some companies have stated that this is a significant motivation for them; however, many of these companies have specifically noted (in the same communication) that they do not believe that ABS procedural requirements apply to them and do not comply with such requirements.
Users and user companies that are inspired to promote ABS objectives, to do as they are told (whether told by law, regulation or guideline) or to support social equity and goodwill will comply. Fortunately, a great many users appear to be sincerely desirous of complying with national and other guidelines on ABS.
Some users and user companies fear that they may be publicly accused of biopiracy. For these users, the desire to avoid this accusation may provide a motivation to comply.
The value of these motivations may not, for many companies, balance the costs of ABS compliance, particularly in light of the fact that ABS permits and contracts generally do not provide the user with any legal certainty regarding the rights and resources obtained.
As a consequence, it is increasingly apparent that an ABS regime will only be functional and effective if it creates specific incentives and other motivations for users. For this purpose, the most effective incentives are usually financial benefits (e.g., tax deductions, rebates, and other rights), opportunities (e.g., special priority for other filings, permits or opportunities, access to special materials or programs that cannot be accessed by others) and positive publicity. Such incentives will be effective only if they:
Are inexorably tied to compliance: Only users who comply with ABS requirements are able to obtain the incentive;
Encourage desirable behavior: Incentives must be designed in such a way that the actions that the user must take in order to obtain the incentive must directly result in positive ABS situations; and
Are sufficiently valuable: The (monetary and non-monetary) value of the incentive must balance the costs (including the risks and costs incurred due to time delays, and the losses of goodwill arising out of potential claims of misappropriation).
It is essential for qualified commercially knowledgeable lawyers, economists and administrators to conduct an expert analysis of commercial, economic, legal and practical elements and analysis of their interlinkage. Such work would be a primary and necessary input to enable the Parties to design and implement the elements of an incentive-based ABS system.
Beyond these incentives however, it is necessary for the ABS regime to consider what motivates governments to adopt and implement user-side measures.505 This incentive element is sometimes unrecognized in ABS discussions. The governmental reasons for adopting provider-side measures are relatively simple and indisputable – the desire to protect the country's valuable resources from exploitation that does not comply with national policy and/or compensate the country or some of its citizens. As a result, a number of countries with users under their jurisdiction are in the process of adopting measures protecting and governing access to and use of their own genetic resources, but none have adopted measures ensuring that those users share benefits with source countries, when they use genetic resources from other places. It may be much more difficult to link ABS to benefits and incentives that are sufficient to inspire countries to comply with their primary user-side obligations, given that those obligations would compel payments to and other sharing of benefits with foreign countries and their citizens, communities and agencies (a process that will be politically difficult for many elected officials).
One of the major conclusions of the entire ABS project is the need for detailed and effective incentives. There are many potential inputs and approaches to the design of a regime wholly or partially operating through incentives. It is necessary to develop credible, documented, concrete (non-speculative) data regarding the costs of ABS, the amount and nature of benefits and value to be received depending on the specific mechanisms chosen, and other key results of the system.
The Parties are already engaged in discussion of some of the questions listed in the previous sections; however, to date, many critical background studies continue to be needed.506 Without that information, it is possible that Parties' may not take the most effective positions to support their national needs and approaches. There are a great many such points on which legal/factual and policy analysis could provide a solid legal basis on which these questions could be decided. Some of them include:
Types of instruments that may be used in an international regime and the impact of selecting them.507
Some of the instrument options to be analyzed could include (i) technical decisions, (ii) voluntary documents; (iii) political statements; (iv) ‘agreed interpretations’ and other clarification instruments; (v) binding or voluntary standards; (vi) forms and models; and (vii) protocols. For each of these options, it is essential to ask several key questions:
As a practical matter, can the proposed instrument resolve the key issues?
What is the advantage of this type of instrument over others?
To achieve its objectives, would the instrument have to create institutions or mandate a transnational processes? Can it do so?
Will it need to be enforced? Can it do so?
The legal nature and legal status of genetic resources under national law.
Current studies have limited their analysis to national law governing real (immovable) property.508 It is doubtful, however, that national law on real property will govern the ownership of and rights to genetic resources in most countries. This is an issue requiring intensive research and analysis.
Application of trade law and terminology to ABS.
In a few cases, standard trade-law terminology continues to be used in ABS negotiations, including most specifically the call on countries to ‘not discriminate against foreign users of genetic resources.’ This (major) development indicates the possibility that, in future it would be made illegal for any country to refuse a request for access to genetic resources. Among trade experts, the so-called ‘ABS-Uruguay Round linkage’ has generally been disregarded, because it is relatively clear that ABS is not in fact linked or linkable to the current international trade regime. Preliminary research under The ABS Project indicates some potential ways to reconsider this linkage, however this research was not complete enough to be included in this volume.509
The functionality of ABS operation will depend on the creation of new legal tools – the building blocks for a new regime. Many years of research and legal practice have indicated that (i) existing legal tools cannot be applied to serve ABS-regime needs in their current form, and (ii) there is no parallel between ABS and any other functional legal/commercial system that is sufficiently robust to become a model for effective ABS implementtation.510 Consequently, the books in The ABS Series have focused on examination of the tools and components of commercial and environmental legislation and the manner in which they can (or cannot) be applied to ABS situations. In the course of the Project's research and analysis, the following issues were identified as key next steps requiring impartial professional legal/practical/policy analysis and research.
Following on Chapters 9, 10 and 11 above, the next level of inquiry will be to examine the practical legislation and mechanisms so that ABS contracts can meet the needs of both user and provider. In particular, it will be essential to determine how various legal tools (guarantees, security, insurance, rights of inspection, etc.) can create certainty and confidence between the Parties to ABS contracts.
One of the most problematic elements of ABS has been its impact and perceived impact on academic and conservation research. Many researchers report substantial delays and in some cases the termination of their activities due to administrative complications and demands imposed by national efforts to implement ABS. These requirements are primarily oriented to the countries' desire to protect their long-term interest in preserving the value of their genetic resources and ensuring that their country and its people receive due and equitable compensation for the use of biodiverse genetic resources once scientific results have been made public, their commercial value as potential products and/or patentable discoveries is compromised, and may have disappeared for all practical purposes.
Within this framework, special provisions for researchers are not as simple as one might think. It is necessary to create a clear line distinguishing academic and conservation researchers from commercial researchers. Many academic and other research institutions are increasingly funded by commercial contracts under which information developed may be transferred to and developed by commercial entities. In addition, research results, especially from conservation work, are often thought of as ‘not producing a concrete ‘product’ but rather a combination of actions, attitudes, and regulations that promote the protection of a given area or species within that area.’511
Accordingly, the development of a research mechanism must identify a mechanism by which non-commercial researchers can be seen as middlemen between the provider and user, and can protect the rights of the source country and provider, with regard to subsequent users both of the material obtained and of any data and research results. Initial processes to develop such a delineation have been identified,512 and this issue should be an urgent priority for the ABS regime.
Normally, the tools to be used to implement a legal requirement are not decided until the nature and process of the legal requirement are clear. In ABS, this approach has been partially altered, with initial studies and discussions of one of the possible mechanisms – the certificate of source, origin or legal provenance – commencing relatively early in the process. To date, however, due to the early stage of negotiations, these discussions have not been able to touch on the most difficult and important issues. Because the certificate discussions were unable to agree at that stage on what the certificate's role in the process would be, the discussions provide a list of a number of possible facts that might be included in a certificate. Almost certainly, the precise list of contents of a certificate will depend on the nature and purpose of that certificate and will not include all of the information in this list.
With the certificate issue already on the table, however, it will be important to provide additional information about the types of certificates that may be used in the ABS regime. Legislative experts with experience in the creation and implementation of certificate-based legal regimes should help to identify the consequences of the various decisions relevant to the use of certificates within the regime. In this analysis, it may be useful to prepare a typology of the various types of certificates that might be relevant to the ABS regime. Such a typology could include, for example, certificates for the following:
Verification of which species, variety or subspecies the material comes from;
Verification of the origin of genetic resources;
Verification of the source country (provider country) from which the genetic resources were originally taken from in-situ conditions;
Verification that a country has ‘acquired genetic re-sources in accordance with the CBD’ (CBD, Art. 15.3);
Verification that standards for PIC and MAT have been complied with, and/or that the persons granting PIC were legally authorized to do so;
Verification or registration of the user, of the nature of user's activities, or of the user's research objective;
Proof or registration of the status of middleman or other holders of biological specimens, regarding the genetic resources of those species;
Verification that the collector, middleman or user has complied with ABS application requirements: (certificate of legal provenance);
Documentation of the collector's, middleman's or user's full compliance with source-country law (certificate of compliance) and/or current compliance with ABS contract (status certificate);
Documentation of the legal capacity and authority of person or entity contracting as provider;
Verification that user engaged in benefit sharing; and
Proof of amount and nature of benefits paid.
Obviously, some of these certificate purposes can be combined, but many of them are so different and separate that they cannot be unified, in content or in process. For each type of certificate, and for each possible use of a certificate, it is important to ask six questions: (i) What does it certify/why is it needed? (ii) Who would issue it/who would receive it? (iii) What would be needed by the system (standards and procedures for verification, etc.) in order for the certificate to function? (iv) What other513 information should the certificate contain? (v) What procedures would be used vis-à-vis the certificate process? and (vi) What functional limitations and challenges must be addressed?
Although current discussions of certificate options may be premature, they have underscored the very different perspectives of various parties on particular tools and processes that might be used in the ABS regime. They include (i) disclosure of origin in patent applications; (ii) proof that product, research or other activity does not utilize genetic resources; (iii) proof that genetic resources are not misappropriated; (iv) compliance with the ABS component of the social responsibility standard; (v) qualification for tax or other incentives in user country; (vi) qualification for incentive or other benefit in source country or other countries; (vii) database or registry of users who comply with ABS law and principles of equity relating to genetic resources; and (viii) the development of a database of genetic resources that have been acquired and are being used. Although initial research has given The ABS Project some very strong opinions on the pros and cons of those options, it is clear that all of them should be examined in order to enable progress in the regime.
Options for the possible roles of disclosure and certificates in the ABS system must be analyzed as a priority issue, to ensure that, if a premature decision is made on certificates, that it does not pre-empt further more useful decisions at a later stage. Hence, as a follow-up to the work already done by the Expert Group on certificates, it might be valuable to develop a list of the various ways that a certificate could be used in ABS, and for each one discuss how the choice of use will affect the differences in certificate content. This discussion could include patent-disclosure as another certificate-like process to be designed when its purpose is clearly decided.
Most important, the last decade has seen a great deal of effort spent on national implementation of ABS and direct support (with or without national implementing laws and practices) to the development and implementation of ABS contracts and permits. These activities have been only partially successful, at best, with many resulting in undoubted failure.
Experience with national and international programmatic work has demonstrated that no project is a failure as long as one can learn from it. In the context of international technical assistance and policy development, however, there is a strong preference for discussing only best practices and success stories. If it is possible to collect lessons from all ABS activities (both successful and not), the advantages for the regime development process could be significant.
As noted in Chapters 2 and 3, and the introduction to Part I, one of the most important and under-studied issues in this field relates to the sectoral aspects of ABS – that is, the manner in which ABS and GR issues are addressed in sectoral governance and activities. Two primary sectors have been subjected to some level of attention up to now. Agriculture, especially the sharing of agricultural collections and efforts to conserve on-farm diversity, have been relatively intensively studied, through work by Bioversity International, FAO and especially ITPGRFA. The other area in which some initial research has begun is marine genetic resources. At national and regional levels, additional work has been undertaken in the forest, freshwater and protected areas sectors.
While The ABS Project has examined sectoral issues in some detail, it has not had the funding or access necessary to engage in in-depth research at national levels in many continents. Such research will be essential for two reasons. First, when the ABS regime's basic functional and operational paradigm is being agreed, this research will help to enable that paradigm to be more easily applied across the sectors, and may help identify particular sectoral elements that can be addressed separately, in the way that the ITPGRFA and its SMTA have identified and addressed a very particular group of ABS transactions – the acquisition of agricultural germplasm from international collections and other participating collections for the purposes of agricultural variety development. It may be possible to identify particular elements of other sectors for similar simplified treatment.
Second, it might help the Parties avoid the possibility that sectors may, at national level, adopt ‘Sector X Genetic Resources’ laws, which could potentially conflict with national and international ABS laws and agreements.
Based on initial research, the marine sector offers positive and negative examples. As detailed in Part I of this book, there are a number of issues which are currently gaining attention and scrutiny by the marine-law-and-policy community under the heading ‘marine genetic resources.’ In general, these discussions focus not on genetic resources but on marine biodiversity (the unique and possibly endangered species of oceans), and marine sustainable development/sustainable use (the possibility that the activities of the fishing industry, marine scientists, marine geological/mining interests and others might be further endangering marine resources, even causing their extinction before they are even discovered and/or before their basic taxonomic and ecosystemic nature is known or exploited). Thus, under the heading ‘marine genetic resources,’ international, regional and national law and policy forums for oceans are discussing the adoption of conservation measures for insufficiently explored or understood parts of the oceans in the high seas.
There is no doubt about the necessity of these discussions, nor about the long and difficult process that will be necessary to make headway in this field. What is problematic is the possibility that, by labelling them ‘marine genetic resources’ in these discussions, they will prevent the Parties in those processes from addressing key questions about real marine genetic resources. In general, for the ABS system to integrate with the oceans regime, it will be essential to know, for example (i) who (what countries, agencies or other bodies) has the right, authority and/or mandate to grant access to and permit utilization of the genetic resource of the oceans beyond national jurisdiction (i.e., the high seas); (ii) how the user, provider and others will know which resources are from the high seas and which are from areas within national jurisdiction; (iii) how the ‘benefit-share’ from genetic resources of the high seas (and those whose origins are not known or disclosed) shall be shared; and (iv) how the ABS regime can best integrate with equity/sharing components of the international regime on oceans.
With regard to this fourth element, it is important to remember what the UN Convention on the Law of the Sea (UNCLOS) was intended to be:
The UN Convention on Law of the Sea (UNCLOS) gives as its basic objective the establishment of a ‘legal order’ for oceans, including the use and conservation of marine resources.514
As such, it rather clearly provides a layer of governance of oceans that must be complied with as to all oceanic activities. This must go forth with full respect for the three apparent reasons behind the completely different approach taken by maritime law and forums, when addressing environmental issues. These differences have had a similar impact on the relationship between environmental forums and the international law of oceans in a great many areas.
Internationality of UNCLOS v. National approaches under the MEAs
The first underlying reason is historical. Maritime law is unlike other international environmental law in that it has always been international in scope. Virtually all countries have utilized oceans in some way for many millennia. As a result, it has always been essential that the primary legal issues of oceans should be developed as international principles or based on agreed standards. Thus, maritime law has evolved entirely separately.
By contrast, apart from climate change, virtually all environmental issues have first developed as law at the national level. International action on these matters has usually been attempted where some gap or variation among countries has raised environmental concerns and required countries to work together or to agree on standards for action.515 At that point, a new international agreement is proposed. Since they are built on national/domestic law foundations, MEAs are generally designed to be implemented by individual national law. In most cases, the form and content of that national law is unspecified. The international agreement focuses on the results and outcomes that the law must attain.
In this respect, ABS bears some important similarities to UNCLOS. Like UNCLOS, the ABS concept is international in focus. The CBD does not regulate or even discuss a country's domestic utilization of its own genetic resources. Instead, its full attention is focused on situations in which one country (or a citizen/entity under its jurisdiction) is utilizing the genetic resources of a different country. For this reason, the ABS approach is increasingly focusing on its international aspects.
Institutional separateness (UNCLOS) v. Integrated management and functionality (MEAs)
Second, the two expertises (marine/ocean law and environmental/conservation law) have been, for the most part, entirely separate, particularly at the international level, but also at national level. Although there is no apparent conflict between them, there is very little overlap, even in scientific areas and implementation. The overwhelming majority of marine scientists do not work address terrestrial issues, and vice versa – far less than the level of crossover between freshwater and terrestrial issues. The evolution of maritime law has resulted in a near total separation between maritime lawyers and those addressing terrestrial matters. As maritime law has begun to address environmental and conservation issues, this distinction continues. Maritime conservation law, for example, is addressed by a different body of lawyers from those dealing with terrestrial and freshwater conservation. Even when dealing with and discussing shared ideas, the two sectors only describe themselves across the marine-terrestrial chasm, but do not seek to integrate their work or approaches.516
This fact, however, is completely justifiable in light of the internationality of UNCLOS and the principle that most ocean areas are beyond the jurisdiction of any one state. Although it is impossible for any legal regime to operate entirely separately from other legal regimes, the marine framework, given that it is based on internationality, must find ways to ensure that its internally harmonious provisions are not effectively invalidated by national measures. In the MEAs, by contrast, coordination is an essential principle, most clearly enunciated in the 1992 UN Conference on Environment and Development:
In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.517
Supported by other principles which call for impact assessment, cooperation and notification, and most essentially by Agenda 21's strong emphasis on integrated environmental planning and management, this principle has been widely recognized through inter-instrument cooperation and recognition, well beyond the individual scope of any MEA, and specifically in the CBD's development and promotion of general principles and mechanisms (such as the Ecosystem Approach, the Principles of Sustainable Use, the Cartagena Protocol on Biosafety, and the ongoing process of developing an international regime on ABS) to assist with such integration. Environmental law and governance has recognized and promoted a goal of inter-sectoral cooperation and integration far longer than that, however, through the general approach which recognizes that environmental and sectoral concerns, although different, normally apply to the same areas, actors and activities. If sectoral activities are to avoid undue environmental destruction, and environmental controls are to avoid commercial/practical damage to sectoral systems and objectives, it is essential for countries and international processes to develop means of coordinating action.
Ultimately, even in the marine sector, there is a need for multiple objectives to be reflected in national and international action. Although not perfectly implemented,518 the concept of sectoral integration is very strongly supported at both national and international levels, including through cooperation in the establishment and integrated application of principles and decisions.
Operational approach: Limiting national action v. Compelling national action
Finally, the most critical reason for the divergence between maritime law and international environmental law arises at the most basic policy level. Maritime law is founded on a critical principle known as the ‘freedoms of the high seas.’ These freedoms are variously described, but are currently seen to include the right of all nations to navigate, fly over, fish, lay cables and pipelines, and conduct scientific investigations freely on the high seas.519 Although this listing of high-seas freedoms seems clearly to be open-ended, many marine commenters and institutions appear to take the position that UNCLOS has closed and codified it. They recognize only the first four (navigation, flying over, fishing, and laying cables and pipelines) as ‘high-seas freedoms.’520 Nearly all marine negotiations and discussions revolve in some way around the protection of these freedoms, clarifying what limits or restrictions may be placed on these activities and specifying where, how and by whom. Operationally, UNCLOS can be described as an agreement among its States Parties specifying the limits one State, or the body of States Parties, may place on other States, their citizens, entities under their jurisdiction or ships flying their flag.521
By contrast, the MEAs' approach is more pro-active – that is, they specify kinds of actions that must or should be taken, or kinds of action that the Parties will try to take, to achieve collective objectives. The CBD, for example, focuses overwhelmingly on the goals of conserving biological diversity and ensuring that its commercial and other utilization is sustainable. It is also oriented around an equity component – the equitable sharing of the benefits arising from the utilization of genetic resources. These objectives are described expansively. The commitments of the parties are thus stated in terms of specific actions and their results, such as ‘Establish a system of protected areas,’522 ‘Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species,’523 and (most relevant to this book) ‘take legislative, administrative or policy 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.’524
Within the range of sectoral concerns, there are two primary paths of inquiry that seem most important at present:
Integration of key sectoral processes with the CBD
The marine genetic resources work has so far not intensively considered the most important sectoral questions – that is, the specific relationship between particular marine law requirements and ABS, with one important exception. Monserrat Gorina-Ysern has undertaken a useful and comprehensive study of one of the most important relationships – between ABS and the UNCLOS's regime for ‘marine scientific research.’525 Obviously, this work cannot be completely concluded until the ABS regime's requirements and processes are more clearly elucidated; however, the work of integrating these two international regimes could provide essential lessons for other sectors' integration with ABS.
ABS and natural resources management
The concept of natural resource management (NRM), although very separate in nature and content from ABS, is frequently discussed as if it were ABS. For example, most marine and forest legislation and guidelines involving genetic resources actually addresses practices of licensing collection of species, fishing, forest harvesting, and the use of other ecosystem components. It is essential for ABS to coordinate with and support NRM, but it is also clear that the two are not identical concepts. It will be both interesting and important to the future development and implementation of ABS to identify both disconnections (the sometimes difficult relationship between ABS and NRM) and potential coordination and mutual support.
One of the most difficult challenges of the ABS regime arises out of the primary reasons behind its creation: ABS is intended to provide support to and be supported by the other two objectives of the CBD – ‘the conservation of biological diversity [and] the sustainable use of its components.’526 The many challenges of creating the ABS system, described in the five books of this Series, seem like child's play, when compared to the task of inexorably linking that system to conservation and sustainable use.
During the negotiations, and in the years immediately following, the linkage between the third objective and the other objectives (conservation and sustainable use) was relatively explicit, in that nearly all contemporaneous accounts identify them as three pillars which hold up the convention. The succeeding 15 years, however, have raised serious questions about whether this is a reasonable expectation. As noted in the introduction to this book, negative experiences with incentives and other regulatory efforts has led to a level of pessimism regarding the effectiveness of international negotiations in achieving social objectives. Consequently, the linkage between ABS and the conservation/sustainable use objectives has become controversial as developing countries, traditional communities, NGOs and others have expressed growing concern that their equitable interests in their genetic resources may be compromised if those rights are dependent on or tied to the conservation and sustainability objectives.
At the same time, international interest, especially of industrialized countries, in promoting conservation and sustainability was one of the primary reasons underlying the creation of ABS in the first place, and remains a key element of their concern. As noted by Capson:
It is widely recognized that there are insufficient funds necessary to protect all of the world's threatened species, in either terrestrial or marine habitats (Myers et al., 2000; Roberts et al., 2002). Accordingly it is crucial to explore mechanisms whereby funds available for complementary activities, such as biodiscovery research, can promote biodiversity conservation.
Biodiscovery research is one of several vehicles through which a biodiverse country can capitalize upon its natural heritage, using it as a comparative advantage to attract funds to strengthen host-country research programs. When employment and educational opportunities are linked to biodiversity, an ineluctable consequence is an enhanced appreciation for biodiversity. Under appropriate circumstances a direct link between human health and biodiversity can be made... The fraction of money earned from drug discovery is significantly less than that derived from tourism activities. But ecotourism does not train scientists, provide investments for scientific infrastructure, or provide future treatments for diseases whose impact is greatest in the developing world. In any event, ... both enterprises are compatible if not complementary. To dismiss the potential impact of biodiscovery research on biodiversity conservation by virtue of a ‘pharmaceutical researcher's willingness to pay for biodiversity as an input into commercial products’ (Simpson et al., 1996) assumes that the role of the host country is limited to providing biological resources as a commodity and ignores the potential benefits to be gained by its participating as a partner in biodiscovery research.527
Clarification of the relationship between ABS and the other two CBD objectives is essential to the ABS regime. Among the issues that can be addressed include:
ABS and climate change;
ABS and forests;
ABS and oceans;
ABS and protected areas;
ABS and illegality;
ABS and sustainability; and
ABS and the promise that the CBD would provide equity.
This analysis is not only important in enabling ABS to ensure that the CBD's objectives and operations are promoted, but also in developing the mix of incentives, motivations and benefits on which the ABS regime will be built.
After five years, seven books, 35 articles, 22 presentations, five workshops and numerous other activities, The ABS Project can safely, albeit sadly, state with confidence that the ABS concept remains extremely complex and unclear and that the Parties and other primary actors are all viewing the concept and its various components in very different ways. Until some specific choices are made to concretize what is included in and excluded from ABS, and what specific approaches and mechanisms will be required, it is premature to attempt to satisfy all positions, and to cover all possible interpretations of what genetic resources are, and what ABS is intended to do.
It seems clear that, in the end, one particular ABS interpretation and one interlocking set of mechanisms will need to be adopted addressing the international elements of the regime. The goal of The ABS Project was to provide technical (law and policy) input into this process to enable regime completion and implementation. Within the limits of what can be done while the basic concept remains in disarray, the project has done this, but recognizes that further work will be necessary after the conceptual elements have been clarified. It is hoped that the books in The ABS Series will provide substantive assistance at that point.
503 For a possible approach to interpreting these first three terms, see Tvedt and Young, supra note 11, at section 4.1.
504 This term is not defined in the CBD. It has been given many different meanings in discussion, however, the parties generally do not note this divergence as any part of the difference or controversy among them.
505 The terminology ‘user-side measures’ and ‘provider-side measures’ is discussed in detail in Tvedt and Young, supra, at Chapters 2 and 3.
506 A partial list of specific issues that the Parties need to understand in order to complete the ABS regime can be generated by addressing, for example, the issues listed in CBD COP Decision VII/19: Access and benefit-sharing as related to genetic resources (Article 15), and specifically, paragraphs C and E/10(g).
507 These categories may have many different titles. ‘Technical Decisions and Voluntary Statements’ encompasses most COP decisions, workplans, ‘guidelines’, ‘guiding principles’ and voluntary standards. ‘Political statements’ include declarations, some COP decisions, etc. An example of an ‘agreed interpretation’ can be found at ftp://ftp.fao.org/ag/cgrfa/Res/C4-89E.pdf (FAO Conference Resolution 4/89) – the agreed interpretation was used by FAO to clarify the meaning of the International Undertaking on Plant Genetic Resources, following the adoption of the CBD. The rules relevant to a Protocol include CBD Articles 28, 32 and 29; and the Vienna Convention on the Law of Treaties, 1969.
508 That is, the law on the ownership of lands and structures. The most recent study referred to in this section is the 2007 report to the CBD's AHWG-ABS-5 entitled ‘Legal status of genetic resources in national law, including property law, where applicable, in a selection of countries’ (UNEP/CBD/WG-ABS/5/5). Given its superficial coverage of the issue (limiting its discussion to laws governing the ownership of real property) this is probably intended as an initial study, rather than a final analysis.
509 This research will be completed and published separately, following the final conclusion of The ABS Project, by primary researcher T.R. Young.
510 As mentioned elsewhere, ongoing work, to be completed under other support, is examining the possibility that the antitrust system might provide a basis or example on which ABS implementation could be developed.
511 Capson, T.L. 2008. ‘Biodiscovery Research in Panama: Linking Science, Technology, Human Health, and Conservation in the Host-Country Context.’ In: Bhatti et al., Contracting for ABS: The Legal and Scientific Implications of Bioprospecting Contracts, EPLP 67/4.
512 Fernandez, J.C. 2007. ‘Tracking and Monitoring International Flows of Genetic Resources: Why, How and Is it worth the Effort?’ In: Ruiz and Lapeña, A Moving Target: Genetic Resources and Options for Tracking their Iinternational Flows. EPLP 67/3.
513 It is assumed that all certificates will contain (i) the name of the party asking for the certificate; (ii) the name of the party owning/possessing/using the material if different; (iii) the name and authority of the issuer; (iv) the qualifications of the person signing the certificate; (v) the standard/legal authority/institutional rule under which the certificate was issued; (vi) a list of all testing or other processes undertaken in order to issue the certificate (and/or any other certificates, documents or statements on which it was based); and (vii) a list of any other external information, data, material, etc. used in issuing the certificate.
514 Johnson, L. 2004. Coastal State Regulation of International Shipping. Oceana Publications (citing the fourth preambular paragraph of UNCLOS).
515 There are a number of examples in the environmental field alone. Pollution agencies at national level eventually found that the effectiveness of national pollution laws was compromised by transboundary factors leading to the Vienna Convention for the Protection of the Ozone Layer, its Montréal Protocol on Substances That Deplete the Ozone Layer, the Convention on Long-Range Transboundary Air Pollutants (LRTAP), Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention), the Stockholm Convention on Persistant Organic Pollutants (the POPs Convention), and many others. A wide range of national, species conservation laws facing similar concerns led to the adoption of the Convention on International Trade In Endangered Species of Fauna and Flora (CITES) and The World Heritage Convention (WHC), among others. Ecosystem/biodiversity conservation more broadly, encompassing both national and international experiences led to the CBD in a very similar way, as experiences with food variety development needs led to the ITPGRFA.
516 See, e.g., Gjerde, K. 2002. Report of the Vilm Expert Workshop on Managing Risks to Biodiversity and the Environment on the High Sea, Including Tools such as Marine Protected Areas – Scientific Requirements and Legal Aspects. BMZ, Isle of Vilm, Germany, 27 February–4 March 2001.
517 Rio Declaration on Environment and Development (Rio, 1992) Principle 4.
518 See, e.g., CITES documents accompanying the Workshop on ‘Introduction from the Sea Issues,’ 30 November–2 December 2005, Geneva, Switzerland, at http://www.cites.org/eng/news/meetings/ifs-05/ifs05.shtml
519 See, for example, the 1958 Convention on the High Seas, at Article 2 which lists navigation, fishing, flyover, pipelines and ‘other freedoms which are recognized by the general principles of international law.’
520 See Mwenda, K. 2000. ‘Deep Sea-Bed Mining Under Customary International Law.’ Murdoch University Electronic Journal of Law 7(2). This presumption that UNCLOS's express terms define the international marine legal framework seems a bit presumptuous to the terrestrial lawyer, based on (i) the fact that UNCLOS is much shorter in duration than any national code covering even one topic (mining, wildlife, commercial use of natural resources, etc.) among the dozens that UNCLOS addresses; (ii) the extreme size of the area covered and variability among its physical, biological, political and other elements; and (iii) (especially) the fact that it is, by its own definition, a ‘framework’ setting out general political/legal objectives and codifying some matters already recognized as international law, but primarily intending that some objectives shall be further clarified and codified in other instruments.
521 The right to impose such limits is specified in great detail, to ensure that limits cannot be applied beyond their immediate and agreed purpose, imposing impermissibly on one or more of the high-seas freedoms. In essence, international maritime laws are, like the WTO and many other types of laws, essentially ‘agreed limits’ on the measures that any State can or must adopt with respect to certain activities by other States' citizens.
522 CBD, Art. 8(a).
523 CBD, Art. 8(f ).
524 CBD, Art. 15.7. The benefit-sharing side of ABS operates in the classic style of MEA functionality. The CBD obligates the Parties to adopt measures that achieve stated results – sharing of the benefits and research results arising from utilization of genetic resources. In essence, countries have agreed to a good faith obligation to find measures that work. If the first attempt does not work, then a new approach must be found and attempted, but in no case is a specific provision required or specific contents described. It is not even specifically necessary to adopt a law or regulation, if the measures adopted meet the stated objectives. By contrast, Article 15.2 does not require any country to adopt national measures for access to genetic resources, noting only that they ‘shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties.’ The only reference to national legislative measures on access is the requirement that countries shall ‘not impose restrictions that run counter to the objectives of this Convention.’ This limit-based approach occurs as a result of the fact that the CBD has defined genetic resources as a part of each country's sovereign rights (Art. 15.1), but recognizes that there are other important international interests (commercial, industrial, research, health, development, etc.) which depend on the ability to gain access to this kind of asset. In this respect, access provisions are similar to the provisions of UNCLOS which limit each coastal State's rights to exclude or place restrictions on foreign shipping, fishing, pipeline-laying and scientific research in ocean areas – based on the need to balance national rights against other countries' interests in preserving and utilizing their high-seas freedoms. a large body of significant and valuable work.
525 Gorina-Ysern, M. 2003. An International Regime for Marine Scientific Research, at 353 et seq. Ardsley, NY: Transnational Publishers Inc. The legal principles requiring the sharing of marine scientific research are set forth under UNCLOS at Part XIII (Articles 238–265).
526 CBD, Art. 1.
527 Capson, T.L. 2008 “Biodiscovery Research in Panama: Linking Science, Technology, Human Health, and Conservation in the Host-Country Context” in Bhatti, et al., 2008, Contracting for ABS: The Legal and Scientific Implications of Bioprospecting Contracts, Book 4 of this Series, at Chapter 7.
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