Preface: Clarifying the Legal Basis for ABS

This book constitutes the final summation of an intensive period of work.1 Its general goal, to provide expert assistance to national legislators, implementing agencies, NGOs, lawyers and others in understanding the legal issues and problems underlying the various aspects of the Convention on Biological Diversity (CBD) concept known as ‘access to genetic resources and equitable sharing of the benefits arising from their commercial and non-commercial utilization’ or ‘ABS.’

The need to prepare for five books and a somewhat astounding number of articles and workshops to achieve this one-paragraph objective may be surprising to some, given that the entire ABS concept was created in one-third of the CBD's Article 1(which set the Convention’s objectives),2 and an operational framework expressed in seven clauses, five definitions, and five other phrases.3 In 2002, the Sixth CBD Conference of Parties (COP 6) attempted to provide a more detailed basis for ABS implementation in its 19-page document, known as the Bonn Guidelines.4

Still, however, a team of 25 of the most able ABS experts in the world seeking material to clarify unresolved conflicts have found enough unresearched and necessary issues and concepts to fill five books with relatively little overlap. Our problem was cutting down this material, rather than finding enough to fill our books. This team, whose works are reflected in these five books, engaged in serious study, analysis, and explanation, but attempted to the maximum extent possible to present their findings in terminology and formats accessible to lawyers and non-lawyers alike.

The first four books examine specific issues that were selected based on current priorities and urgency. Books 1–3 focus on the questions of law and governance which have been given the highest levels of current attention – (1) provider-side ABS legislation; (2) user-side ABS legislation, and (3) transboundary tracking options. Book 4 looks at the primary questions of ABS operation (contractual issues). This final book provides focused research papers, as well as some general understandings about the range of issues beyond the scope of the first four books, memorializing lessons learned by other project activities and research.

It is probably not difficult to predict the issues that were intended for examination in this book, by considering a list of the issues that have not been agreed internationally, and are not included in the above description of Books 1–4. Most of these issues have been on the table since the earliest CBD negotiations. Although The ABS Project has been able to pay the costs of in-depth expert analysis into many key issues, that work has only underscored the need for additional inquiry, to provide an appropriate, credible and balanced analysis that can serve as a basis for sound decision making and the creation of a workable and well-designed international ABS regime. Specifically, these analyses address aspects of key questions of integration of the various elements of the international ABS regime, focusing on five areas of concern:

The need for further analysis, however, continues to be critical, and it was feared that an effort to organize unconfirmed impressions in this book might forestall some important inquiry in future. This book, therefore, discusses only formally researched analyses, identifying issues of additional concern, and explaining why and how additional inquiry can contribute to the ABS process. Like all work in this field, this book is an amalgamation and analysis of ongoing work that has evolved through many books, papers, processes and discussions, suggesting that in a very real sense, it is the work of hundreds of people.

The primary substantive content of Covering ABS: Addressing the Need for Sectoral, Geographical, Legal and International Integration in the ABS Regime – Papers and Studies of The ABS Project, is the formal presentation of a number of final individual outputs prepared under The ABS Project, in the hope of preserving them and sharing them with a wider audience, as well as offering some additional information on issues and concepts identified by the Project as areas in need of intensive analysis in the coming months and years. Through The ABS Project, many of these papers have been circulated in international, regional, national and non-governmental meetings and processes during the term of The ABS Project, some have also been presented in high-level workshops and seminars, or have formed the basis for contributions by the Project to other meetings and publications. This book represents an effort to provide a balanced view of these contributions, considering a variety of factors linking the participants in ABS processes with each other and with the rest of the world, governmentally and in other ways.

Unlike the other books in this Series, however, this book does not attempt to edit out legal or scientific ideas, and contains a number of chapters and articles that were intentionally written to memorialize legal research and explain the results of that research in supported legal analysis. The authors have attempted to avoid the most complicated constructions and legalisms, however, and believe that there is much here for readers without legal educations. We also believe that it is important to begin the process of clarifying the legal issues and concepts for lawyers, few of whom have, as yet, researched or analyzed the law of ABS in any systematic way that would give them the confidence and knowledge required to enable them to advise in this field. It is, as noted, not a complete analysis of ABS law, but does hope to begin or enable the process of such analysis.

This book, and indeed the entire ABS Project, owe a great debt to our primary financial supporter, the German Federal Ministry for Economic Cooperation and Development (Bundesministerium für wirtschaftliche Zusammenarbeit und Entwicklung or BMZ), and especially to Julia Kaiser, Andrea Laux and Frank Schmiedchen – without whom this work could not have been completed. Numerous other partners and collaborators have also made important and sustaining commitments for which we are very grateful.

Finally, I express our gratitude for the support and foresight of Dr Alejandro Iza and the IUCN Environmental Law Centre. It was through Dr Iza's efforts that The ABS Project became a reality, and his understanding of the difficulties in its implementation as well as his support and the unstinting assistance of the staff of the Environmental Law Centre, including especially Project Assistant Ann DeVoy, Senior Information and Documentation Officer Anni Lukács, Documentation Assistant Monica Pacheco-Fabig and Legal Officer Daniel Klein have been the primary reason that the Project could finish its work and that outputs throughout the term of the project have achieved the level of legal excellence expected of the IUCN Environmental Policy and Law Papers, among which The ABS Series has been included.

Tomme Rosanne Young
Series Editor and Project Manager, The ABS Project
Editor and co-author of this book

April 2008

1 That we have reached this point and with a body of work which meets our objective of credible research-based legally expert work, is due to the fact that our donor and institutional sponsor, the German Ministry for International Development Assistance, understood the challenges we faced in converting a straightforward project – implementing CBD Article 15 (one of the most difficult provisions in international environmental law) – to suit the change in circumstances that arose when the international community commenced intensive new negotiations that will reconfigure the world's conception of ABS.

2 The three objectives of the convention are listed in Article 1. The first two, ‘conservation of biological diversity’ and ‘sustainable use of its components’ are stated simply and directly. The third, benefit sharing, is more complex: ‘the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.’

3 The seven main clauses comprising the ABS framework are Article 15.1–15.7. The five relevant definitions (‘biological resources,’ ‘biological material,’ ‘country of origin,’ ‘country providing resources’ and ‘genetic resources’) are found in Article 2, and the five other phrases are found in small clauses within Articles 16–21, and some would add Article 8.

4 The Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, originally adopted as an addendum to CBD Decision VI-24 (UNEP/CBD/COP/6/24), and in 2002 were reproduced in a booklet published by the CBD Secretariat.

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