Introduction to Access and Benefit Sharing

The primary focus of this module is on Access and Benefit-Sharing (ABS) with respect to genetic resources and associated traditional knowledge. However, some provisions have been included which cover ABS issues regarding natural resources or biodiversity in general. These have been included if they cover genetic resources as part of the natural resources to which they refer. An example of this would be CITES Resolution 13.2 (rev. COP 14) a), as it urges Parties to make use of the Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity which, in turn, include the adoption of policies and regulations to ensure that indigenous and local communities receive an equitable share of benefits from sustainable use of resources (under Practical Principle 12).

The module includes directly relevant as well as indirectly relevant provisions and commitments.[1] While designing it, attention was given to not making it too broad or general in scope, so that it can serve as a practical, meaningful tool for implementation of the issue in question. The guiding question throughout the development of the modules has been: What is helpful at the level of national implementation?

Structure

As with the other issue-based modules, the ABS Module is structured around a core set of sections, which are further broken up into activities and components. The seven sections of the ABS Module are:

  • Section 1: Assessment
  • Section 2: Legislative, administrative and policy measures
  • Section 3: Management and practical measures
  • Section 4: Economic instruments
  • Section 5: Provision of resources
  • Section 6: Communication, education and public awareness
  • Section 7: Cooperation

The Sections are repeated throughout the website for clarity and ease of use.

Reviewed provisions

The international (multilateral) instruments and processes reviewed in the development of this module include:

  • Convention on Biological Diversity (CBD: Convention and COP decisions)
  • FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA: Treaty and decisions of the Governing Body)
  • United Nations Convention on the Law of the Sea (UNCLOS)
  • Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES: Convention and COP decisions)
  • United Nations Convention to Combat Desertification (UNCCD: Convention and COP decisions)
  • Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement; Council Decisions; Ministerial Declarations)
  • World Intellectual Property Organization (WIPO) instruments (Patent Cooperation Treaty (PCT) and regulations; Patent Law Treaty (PLT); Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC-GRTKF) decisions)
  • International Union for the Protection of New Varieties of Plants (UPOV) Convention
  • International Plant Protection Convention (IPPC)
  • Antarctic Treaty (Treaty and Antarctic Treaty Consultative Meeting resolutions)
  • United Nations Permanent Forum on Indigenous Issues (UNPFII: session reports)
  • Plan of Implementation of the World Summit on Sustainable Development (Johannesburg, 2002)
  • United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295)

The analysis of regional instruments has, so far, included:

  • Relevant Decisions of the Andean Community:
    • Decision 391 (Common Regime on Access to Genetic Resources)
    • Decision 486 (Common Intellectual Property Regime)
    • Decision 345 (Common Provisions on the Protection of the Rights of Breeders of New Plant Varieties); and
  • Relevant instruments of the European Union:
    • Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions.

The majority of commitments on ABS stem from the CBD (Convention and COP decisions) and the FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). Other conventions and COP decisions have been identified, which cover some aspects of access and/or benefit-sharing in the broader sense. These are, however, relatively few. By way of example, singular provisions of UNCLOS have been included relating to consent to scientific research by Coastal States and the sharing of benefits from this research (Arts. 246 and 249 UNCLOS).

Discussions in various international forums including, inter alia, the WTO, the TRIPS Council and WIPO, relate to important aspects of ABS. In particular, there is intensive work ongoing with respect to disclosure requirements in patent applications relating to genetic resources and/or traditional knowledge. Many positions have been taken and suggestions made by States or groups of States with respect to these aspects. So far, however, there has been no commitment or recommendation directed to Parties as an outcome of the discussion in these forums. Therefore, no commitments from these instruments and processes have been included yet. (Positions and suggestions in international forums as such are not included in the modules.) There are regional instruments, however, which already reflect parts of these aspects, and which are included in this module. Furthermore, as the modules are evolutionary tools, regular updates are foreseen which will pick up new obligations and/or commitments as they come available through future negotiations.

[1] ‘Directly relevant’ means that the provision refers explicitly to access and benefit sharing in its wording. ‘Indirectly relevant’ commitments are commitments which do not explicitly refer to ABS, but should be taken into account when working on the implementation of ABS. An example would be a general provision on the promotion of the CBD Clearing House Mechanism to share information: in that provision there is no direct reference to ABS although it is relevant to exchange of information regarding ABS measures