Activity 4: Develop measures to promote compliance

Below are the global and regional obligations in this activity:
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Component 1: Develop general measures to promote compliance with ABS requirements and agreements

Directly relevant obligations and commitments

  • Recipient countries: Adopt administrative or policy measures consistent with the objectives of the Convention that are supportive of efforts made by provider countries to ensure that access to their genetic resources for scientific, commercial and other uses, and associated traditional knowledge, as appropriate, is subject to Articles 15, 16 and 19 of the Convention, unless otherwise determined by that provider country: CBD Decision V/26, 4(c)
  • User countries: Take appropriate legal, administrative, or policy measures to support compliance with prior informed consent of the Contracting Party providing resources and mutually agreed terms on which access was granted: CBD Decision VI/24, 4 and CBD Decision VI/24, Annex (Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization)SEE COMMENTARY 1
  • Encourage the exchange of information between users and providers regarding legislative, administrative and policy measures existing in the corresponding jurisdictions relating to ABS, with the aim of supporting compliance with prior informed consent of the Contracting Parties providing resources, including countries of origin, and of the indigenous and local communities providing associated traditional knowledge, and with mutually agreed terms on which access was granted: CBD Decision VII/19, E.2(a) SEE COMMENTARY 2
  • Hold the individual collector or institution on whose behalf the collector is operating responsible and accountable, if appropriate, for the compliance of the collector: CBD Decision VI/24, 4 and CBD Decision VI/24, Annex (Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization)SEE COMMENTARY 4
  • Include in the national monitoring, depending on the terms of ABS: (a) Whether the use of genetic resources is in compliance with the terms of ABS; (b) Research and development process; (c) Applications for intellectual property rights relating to the material supplied: CBD Decision VI/24, 4 and CBD Decision VI/24, Annex(Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization)SEE COMMENTARY 5
  • Consider establishing requirements regarding reporting and disclosure of information to promote accountability: CBD Decision VI/24, 4 and CBD Decision VI/24, Annex (Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization)SEE COMMENTARY 3
  • Encourage the development of model/standard contractual agreements for different user groups and different genetic resources: CBD Decision VII/19, E.2(c) SEE COMMENTARY 7
  • Provide easy access to justice in cases of violation of legal provisions in provider and user countries: CBD Decision VII/19,E.2(e) SEE COMMENTARY 8
  • Consider administrative and judicial remedies, including penalties and compensation as provided by national laws when taking measures to support compliance with prior informed consent and mutually agreed terms: CBD Decision VII/19, E.2(f) SEE COMMENTARY 9
  • Establish national mechanisms to ensure compliance, when required by domestic law, with the obtaining of prior informed consent of indigenous and local communities regarding access to genetic resources and associated traditional knowledge: CBD Decision VII/19, E.4 SEE COMMENTARY 10
  • User countries: Develop appropriate legal, administrative, or policy measures to support compliance with prior informed consent of the Contracting Party providing such genetic resources and mutually agreed terms on which access was granted: CBD Decision VII/19, F.2 and CBD Decision VII/19.F, Annex (Action Plan on Capacity-building for Access to Genetic Resources and Benefit-sharing)SEE COMMENTARY 11
Component 2: Include disclosure requirements and other measures in patent law

Directly relevant obligations and commitments

  • User countries: Consider taking measures to encourage the disclosure of the country of origin of the genetic resources and of the origin of traditional knowledge, innovations and practices of indigenous and local communities in applications for intellectual property rights: CBD Decision VI/24, 4 and CBD Decision VI/24, Annex (Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization)SEE COMMENTARY 13
Component 3: Promote accountability, prevent violations and provide remedies

Directly relevant obligations and commitments

  • User countries: Consider taking appropriate legal, administrative, or policy measures aimed at preventing the use of genetic resources obtained without the prior informed consent of the Contracting Party providing such resources: CBD Decision VI/24, 4 and CBD Decision VI/24, Annex (Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization)SEE COMMENTARY 15
  • o User & Recipient countries: May take appropriate effective and proportionate measures for violations of national legislative, administrative or policy measures implementing the ABS provisions of the CBD, including requirements related to prior informed consent and mutually agreed terms: CBD Decision VI/24, 4 and CBD Decision VI/24, Annex (Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization)SEE COMMENTARY 16
  • Establish mechanisms to promote accountability by all stakeholders involved in ABS arrangements: CBD Decision VI/24, 4 and CBD Decision VI/24, Annex (Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization)SEE COMMENTARY 17
  • Consider administrative and judicial remedies, including penalties and compensation as provided by national laws, when taking measures to support compliance with prior informed consent and mutually agreed terms: CBD Decision VII/19, E.2(f)SEE COMMENTARY 18
Component 4: Establish voluntary certification and verification systems

Directly relevant obligations and commitments

  • User countries: Consider establishing voluntary certification schemes for institutions abiding by rules on ABS: CBD Decision VI/24, 4 and CBD Decision VI/24, Annex (Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization)SEE COMMENTARY 19
  • Consider developing voluntary verification mechanisms at the national level to ensure compliance with the ABS provisions of the CBD and national legal instruments of the country of origin providing the genetic resources: CBD Decision VI/24, 4 and CBD Decision VI/24, Annex (Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization)SEE COMMENTARY 20

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Author Commentary 1

This refers to provision 16(d) of the Bonn Guidelines.

Author Commentary 2

Section E of CBD Decision VII/19 is entitled “Measures, including consideration of their feasibility, practicality and costs, to support compliance with prior informed consent of the Contracting Party providing genetic resources and mutually agreed terms on which access was granted in Contracting Parties with users of such resources under their jurisdiction”.

Author Commentary 3

This refers to provision 53 of the Bonn Guidelines.

Author Commentary 4

This refers to provision 54 of the Bonn Guidelines.

Author Commentary 5

This refers to provision 55 of the Bonn Guidelines.

Author Commentary 7

Section E of CBD Decision VII/19 is entitled “Measures, including consideration of their feasibility, practicality and costs, to support compliance with prior informed consent of the Contracting Party providing genetic resources and mutually agreed terms on which access was granted in Contracting Parties with users of such resources under their jurisdiction”.

Author Commentary 8

Section E of CBD Decision VII/19 is entitled “Measures, including consideration of their feasibility, practicality and costs, to support compliance with prior informed consent of the Contracting Party providing genetic resources and mutually agreed terms on which access was granted in Contracting Parties with users of such resources under their jurisdiction”.

Author Commentary 9

Section E of CBD Decision VII/19 is entitled “Measures, including consideration of their feasibility, practicality and costs, to support compliance with prior informed consent of the Contracting Party providing genetic resources and mutually agreed terms on which access was granted in Contracting Parties with users of such resources under their jurisdiction”.

Author Commentary 10

Section E of CBD Decision VII/19 is entitled “Measures, including consideration of their feasibility, practicality and costs, to support compliance with prior informed consent of the Contracting Party providing genetic resources and mutually agreed terms on which access was granted in Contracting Parties with users of such resources under their jurisdiction”.

Author Commentary 11

This refers to provision B.5(f) of the Action Plan on Capacity-building for Access to Genetic Resources and Benefit-sharing.

Author Commentary 12

Such information should be included if known; this is without prejudice to the processing of patent applications or the validity of rights arising from granted patents.

Author Commentary 13

This refers to provision 16(d)(ii) of the Bonn Guidelines.

Author Commentary 14

Andean Community Decision 391 establishes the ‘Common Regime on Access to Genetic Resources’

Author Commentary 15

This refers to provision 16(d)(iii) of the Bonn Guidelines.

Author Commentary 16

This refers to provision 61 of the Bonn Guidelines.

Author Commentary 17

This refers to provision 52 of the Bonn Guidelines.

Author Commentary 18

Section E of CBD Decision VII/19 is entitled “Measures, including consideration of their feasibility, practicality and costs, to support compliance with prior informed consent of the Contracting Party providing genetic resources and mutually agreed terms on which access was granted in Contracting Parties with users of such resources under their jurisdiction”.

Author Commentary 19

This refers to provision 16(d)(v) of the Bonn Guidelines. This obligation is also included in Component 1 of Activity 1 of Section 4 (Economic instruments) of this module.

Author Commentary 20

This refers to provision 57 of the Bonn Guidelines. According to provision 58 of the Bonn Guidelines, a system of voluntary certification could serve as a means to verify the transparency of the process of ABS. Such a system could certify that the ABS provisions of the CBD have been complied with.