This book constitutes the final summation of a long period of project work, which examined the challenges involved in the implementation of a difficult provision of an international agreement. During the pendency of that work, the international provision under scrutiny became the subject of intensive new negotiations. In the course of that project, a group of highly competent and respected ABS experts engaged in serious study, analysis, and explanation, with the goal of providing credible information and analysis which can support the highly controversial processes of (i) adopting and implementing national ABS legislation, and (ii) developing the supporting concepts and processes necessary so that ABS can function across national borders. Much of their work is memorialized in the other six books published by The ABS Project, and in other ways.5
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 objectives of the Convention on Biological Diversity (CBD) – ‘the conservation of biological diversity [and] the sustainable use of its components.’6 Many challenges of creating the ABS system described in the 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 CBD negotiations, and in the years immediately following, the third objective's link to first two objectives was expressed very simplistically – that ABS would enable developing countries to obtain recognizable ‘value’ in exchange for their wild and traditionally developed biological resources, thereby creating a new and strong incentive (presumably financial) to conserve them.7 The succeeding years, however, have raised serious questions about whether this is a reasonable expectation. A bitter lesson has been learned through the international community's experience with incentives and other attempts to implement or regulate environmental objectives through commercially focused measures, incentives, motivational provisions and other measures – they are not easy to design, and they are not free of costs to governments. With very few exceptions, each book or article addressing the question of ‘access to genetic resources and equitable sharing of the benefits from their utilization’ or ‘ABS’ begins with a discussion of the ABS legal and practical system as it exists and/or as it is envisioned. What is most interesting in examining those discussions is their divergences rather than their similarities.
All commentators note or quote the various provisions of the CBD that comprise ABS and most follow this by noting or bemoaning the fact that these clauses do not give much of an indication of what countries must do to meet their ABS commitments nor exactly how the ABS system will function. From there, however, the variability in descriptions of ABS is an important indicator of thechallenges to be faced in attempting to realize the ABS concept as an effective system:
Equity focus: One perspective focuses on the perceived need for ABS to provide funds as a tool of equity, compensating developing countries and indigenous groups for the fact that they have, whether through conservation and sustainable development or simply by the fact that they have not developed as rapidly and completely as developed countries, maintained high levels of diversity both of known species, and of ecosystems containing a broad range of as-yet-unknown species.
Conservation incentive focus: Another position looks at the underlying objective of ABS – to serve as an incentive for conservation and sustainable use, especially in developing countries.
Focus on conservation and developing funding: Another focus – the ‘green gold’ perspective – sees ABS as a way of generating the high levels of funding needed for many kinds of conservation activities, especially for protected areas.
Focus on non-interference with commercial markets: Another important faction is primarily focused on what ABS should NOT do – specifically, that it should not cause any alteration in existing commercial markets or necessitate any reconsideration of trade laws and relationships.
Focus on linkage to enhanced access to genetic resources: Another perspective notes that the primary immediate impact of ABS has been an increase in the regulations and restrictions on access to genetic resources, and on biological/genetic field research and collection activities, especially in developing countries. This generally undisputed fact is somewhat ironic, given that the CBD does not require that Parties adopt legislation on access, and in fact its provisions on access are limitations on the limitations that countries may apply.
Focus on interrelationship with other international and national legal frameworks: An astoundingly large percentage of ABS work has focused on the relationship between ABS and three other legal frameworks – specifically, the frameworks governing intellectual property (the conventions adopted under the auspices of the World Intellectual Property Organization (WIPO), and the Agreement on Trade-related Aspects of Intellectual Property Rights or TRIPs Agreement);8 those governing international movement of species (the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)); and other documents adopted within the international trade regime (World Trade Organization (WTO)); as well on national frameworks on all of these issues. The ABS Project has identified a number of key ways in which so-called ‘antitrust’ law – another body of law (found in most developed countries and many developing countries) may offer potential to assist in the implementation and application of the ABS concept.
Focus on contractual negotiation and commercial implementation: Commercial entities, especially, consistently seek to bring the focus back to the mechanism itself – that is the need for the ABS system to operate in a legally and commercially rational and predictable way, if it is to function through but not interfere with the application of contractual and business mechanisms.
Focus on contractual enforcement: In contrast, many provider-side officials, negotiators and analysts, focus on the contractual element of ABS, generally viewing its failures to be a result of non-compliance and non-enforcement, raising the claim that developed countries (sometimes called ‘user countries’) have not addressed their obligations to enforce the ABS ‘user’ requirements.
Focus on the lack of legislative measures: Although many articles have been written about the last 15 years' experience with ABS implementation through legislation, the fact remains that fewer than 12% of CBD parties have adopted any actual legal, regulatory or other measures implementing and addressing ABS. More important, perhaps, but less well considered prior to this writing is the fact none of these countries or regional bodies have attempted to meet the obligations of Article 15.7, which call for specific legal, regulatory or administrative measures directed at the users under their jurisdiction who are utilizing genetic resources with origin in other countries. The only type of measure that has been adopted with any user impact at all is the (voluntary or mandatory) ‘disclosure of origin in patent applications,’ a measure that does not include any requirement or recommendation for (or any type of user-side government involvement in) ‘sharing the benefits arising from utilization of genetic resources.’ This is all the more notable, since user-side measures are specifically required under the CBD.9
Focus on other paths to the ABS objective: A few Parties, ABS commentators and institutions have emphasized different approaches, based on the perceived spiralling needs that are arising in trying to actualize the ABS framework, including. These approaches include the following:
To integrate the current discussions with the other elements of ABS as specified in the CBD, especially ABS provisions regarding technology transfer, information sharing, and development opportunities.
To find create/appropriate incentive or motivation mechanisms and integrate them into the ABS framework, to alleviate its dependence on mandatory provisions and their (nearly impossible) enforcement.
To link ABS with already functional and effective voluntary certification programmes for corporate social responsibility, enabling ABS implementation to rely on these systems to effectuate ABS compliance without governmental mandate or direct involvement.
To re-link ABS to other genetic-resource related issues, enabling the ABS negotiations and resulting framework to reflect a more ‘bilateral’ compromise through which those most resistant to ABS implementation will see a political, commercial or other justification for taking action.
In evaluating the large volume of data and analysis available, this book has focused on identifying work or further analyses not yet conducted by other publications. Consequently, it will not commence with an overview or overarching analysis of what ABS is, expecting the reader to find these summaries in books 1–4 of this Series, and in the other books published by the Project.
Like The ABS Project, this book attempts to fulfil three objectives:
Memorializing project research;
Considering the options for how to adopt the new international decisions and instruments of the ABS regime quickly, without creating a new set of obstacles that prevent its functionality for another 15 years; and
Identifying key areas for further work.
The first objective is addressed in Chapters 2–8, which are offered with minimal introductory material. The five-year ABS Project has attempted to mobilize experts for focused research at need – that is, to provide professionally competent legal analysis by experienced lawyers and other experts addressing specific issues of immediate concern. In addition to the ever-widening scope of its substantive researches and resources, the Project's integration into the ABS processes provided opportunities to interview a large number of representatives of governments, civil society, industrial/commercial sector, and the research community, regarding ABS issues and their impacts. In the course of this long process, a sizeable body of information has been compiled internally, which should be preserved and memorialized as the project ends, in the hopes of it being useful to other projects and activities in future. This book collects a number of shorter works developed in the Project, which are more focused and generally outside of the primary perspectives presented in the other ABS Project-produced books.
In addition to these works, The ABS Project produced another publication, which provides an initial inquiry into the relationship of the four different ‘genetic resource’ issues:
Utilization of genetic resources (ABS);
GMOs, as products of genetic resource utilization (the Cartagena Protocol);
Agricultural development (the ITPGRFA); and
Traditional knowledge and intellectual property regimes (the WIPO IGC).10
That analysis, from 2005, focuses on a critical fact – that the availability of benefits, both monetary and informational, is essentially related to commercial development. Hence, a reciprocal commitment to support this type of development may be essential to both the success of ABS and the creation of the incentives necessary to inspire users and user countries to assertively implement ABS.11
Chapters 9–10 offer a variety of other analyses, intended as the beginnings of an integrated analytical framework addressing the manner in which legal/practical subjects address ABS and interrelate with one another. Finally, Chapter 11 presents a brief listing of some urgently needed further analytical studies, and for each a brief discussion of the reasons that it is important to the creation of any functional regime. All articles are reprinted with permission of their authors and of all other sponsors of such publications.
5 See, the final page of this book for a list of major publications. In addition, The ABS Project presented or co-presented workshops in Peru, Kazakhstan, Germany and a number of other countries, produced Side events at CBD COPs 7 and 8 and at CBD/WG-ABS Meetings 3 and 4. It also provided advisory services for governmental and government-supported meetings in Russia and China, as well as regional meetings in Southern Africa, Europe and Latin America.
6 CBD, Article 1.
7 See, e.g., Hendrickx, F., V. Koester and C. Prip. 1993. ‘Convention on Biological Diversity Access to Genetic Resources: A Legal Analysis.’ Environmental Policy and Law 23(6): 254–255. Glowka et al., 1997; Young, 1994.
8 Although much of the attention within the ABS discussions focuses on Article 27.3(b) of the TRIPS Agreement, a significant swath of Part II (Articles 9–40) contains provisions and elements of much greater import and impact on ABS.
9 Although some non-lawyers have suggested that the phrase ‘as appropriate’ in Article 15.7 (which calls for ‘legal, administrative or policy measures, as appropriate’) gives countries the option of adopting no measures at all. Legal construction would not allow this, however, unless the country already had ‘legal, administrative or policy measures’ in place which achieved the required objective – something that no country appears to have, based on detailed analysis of all the relevant laws of Australia, USA, Norway and the EU, and of the laws submitted by all countries which have complied with the CBD-COP request that they provide copies of relevant law to the CHM. See Tvedt, M.W. and T.R. Young. 2007. Beyond Access – Exploring Implementation of the Fair and Equitable Sharing Commitment in the CBD. EPLP 67/2, at chapter 3. Gland and Bonn: IUCN in collaboration with IUCN ELC.
10 Young, T.R. 2005. ‘Incentive and Effective Operation: Re-linking the Components of International Law on Genetic Resources.’ In: Werksman, J., (Ed.) Yearbook of International Environmental Law (anchor article).
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