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2.1 Sustainable Development Law Research on ABS CISDL’s recent ABS research has focused on both the global and local aspects of access and benefit-sharing. CISDL partnered with Gene Campaign in India, the Southern Environmental and Agricultural Policy Research Institute in Kenya, and Sociedad Peruana de Derecho Ambiental in Peru on the ‘Laying the Foundations’ project. Each partner undertook preliminary research on existing ABS contracts, policies and laws in their countries. Each project partner also mentored a junior researcher who participated in a three-week ABS capacity-building and networking workshop in Montreal. A team of CISDL researchers has now prepared the third edition of an 'Overview of the National and Regional Implementation of Measures on Access to Genetic Resources and Benefit-Sharing'. The study is a concise overview of the subject matter, prior informed consent requirements, mutually agreed terms on benefit-sharing, compliance measures, and monitoring and tracking provisions of the ABS measures of over 35 countries and regions. Download the small file (624KB) or the large file (2.4MB). On the basis of a brainstorming workshop held during COP-7 to the Convention on Biological Diversity in Kuala Lumpur in February 2004, CISDL prepared ‘A Scoping Study on Future Research Priorities for Access to Genetic Resources and Benefit-Sharing’. 2.2 Recent CISDL Events on ABS Bangkok | Thursday, February 17, 2005 Side Event Programme: Side Event Documentation:
Bangkok | Monday, February 14, 2005
(For past News & Events click here.) 2.3 Recent CISDL Publications on ABS CISDL was contracted by Environment Canada to prepare an ‘Overview of the National and Regional Implementation of Measures on Access to Genetic Resources and Benefit-Sharing’. A preliminary draft of the study was presented during the 3rd meeting of the ABS Working Group in Bangkok in February 2005 and also at a workshop on ‘ABS and the North’ organized by Environment Canada, the Arctic Athabaskan Council, and the Inuit Circumpolar Conference in Whitehorse in March 2005. The most current information on ABS measures was gathered during these meetings and was used to prepare a second version of the study. CISDL has now prepared a third edition of the Implementation Study that updates and expands the information from the previous editions. Download the small file (624KB) or the large file (2.4MB).In collaboration with our partners on the ‘Laying the Foundations’ project – Gene Campaign, the Southern Environmental and Agricultural Policy Research Institute, and Sociedad Peruana de Derecho Ambiental – CISDL prepared a report (released in July 2005) documenting the outcomes from the project. Members of the Biodiversity Programme prepared a legal brief on ‘A New Regime on Access to Genetic Resources and Benefit-Sharing?’ for an academic workshop on ‘Sharing Nature’s Wealth: Law and the Benefits of Biodiversity’ held at McGill in March 2003. The brief was developed into a working paper on ‘Sustainable Biodiversity Law: Global Access, Local Benefits’ which was presented at a side event to the second meeting of the Convention on Biological Diversity’s Ad Hoc Open-Ended Working on ABS in Montreal in December 2003. The working paper was subsequently developed into a book chapter and published in M.C. Cordonier Segger & C.G. Weeramantry, Sustainable Justice: Reconciling Economic, Social and Environment Law (Leiden, The Netherlands: Martinus Nijhoff Publishers, 2004). On the basis of feedback gained from the side event in December 2003 and a brainstorming workshop on new research priorities held during the 7th Conference of the Parties to the Convention on Biological Diversity in Kuala Lumpur in February 2004, CISDL prepared ‘A Scoping Study on Future Research Priorities for Access to Genetic Resources and Benefit-Sharing’ for IDRC. The Scoping Study includes an overview of the international context for ABS, interests of developing countries and indigenous and local communities in ABS, a series of key issues for future research, recommendations, an extensive bibliography and a summary of other ABS research projects. 2.4 Thanks The Biodiversity Programme is very grateful for the contributions of our funders to our research – the International Development Research Centre in Ottawa, Canada and the Biodiversity Convention Office of Environment Canada. 2.5 Sustainable Development Law on ABS The Convention on Biological Diversity [www.biodiv.org] (CBD) is the usual starting point for discussions on ABS. The CBD was opened for signatures at the Earth Summit in 1992 and entered into force the following year. ABS is included as one of the three objectives of the Convention and Article 3 grants states sovereignty over their resources in order to allow them to create measures to regulate ABS. Numerous other provisions in the CBD are also relevant to ABS, most notably Article 15 on ‘Access to Genetic Resources’. This article sets the general parameters under which access is to be granted including mutually agreed terms and prior informed consent. The Parties to the CBD have also agreed to the Bonn Guidelines , a voluntary set of guidelines that elaborate the ABS provisions of the Convention. Other relevant articles in the CBD include Article 16 ‘Access to and Transfer of Technology’, Article 19 ‘Handling of Biotechnology and Distribution of its Benefits’, Article 8(j) on the knowledge of indigenous and local communities, and Article 10(c) on customary use of biological resources. The Parties to the CBD are currently negotiating an international regime on ABS . More recently, members of the Food and Agriculture Organization have negotiated the International Treaty on Plant Genetic Resources for Food and Agriculture (IT). This agreement stems from the International Undertaking on Plant Genetic Resources from 1983 and subsequent annexes in 1989 and 1991. The IT was opened for signatures in 2001 and entered into force in 2003. Unlike the contractual system of ABS envisioned by the CBD, the IT creates a multilateral system of access to a specific set of crops. Access to the multilateral system will be based on a standard material transfer agreement being developed by the Parties. One of the most controversial areas in the IT is the issue of intellectual property rights (IPRs). Article 12.3(d) limits the ability of recipients of material from the multilateral system to claim IPRs on this material but the exact meaning of this provision remains to be determined. Article 13 of the IT sets out the mechanisms for benefit-sharing under the Treaty and Article 9 recognizes Farmers’ Rights but leaves their implementation up to each Party. One part of the World Trade Organization is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This Agreement sets baseline standards for various aspects of intellectual property law with which all members of the WTO must comply. In particular, Article 27 addresses ‘Patentable Subject Matter’ and Article 27.3(b) requires members to provide some sort of intellectual property protection for plant varieties although plants and animals can be excluded from patentability. There is much concern, particularly by developing countries, that the TRIPS Agreement and Article 27.3(b) operate contrary to the provisions of the CBD by hindering access to genetic resources and wrongly allowing traditional and community knowledge to become the subject of patent claims. As required by the TRIPS Agreement, the TRIPS Council undertook a review of Article 27.3(b) beginning in 1999. The review is still ongoing and the Doha Ministerial Declaration from 2001 has broadened the terms of the discussion to include consideration of the relationship between TRIPS and the CBD, and the protection of traditional knowledge and folklore. In 2000, the members of the World Intellectual Property Organization (WIPO) agreed to form the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). Early work of the IGC has focused on gathering information about the three areas in its mandate. Work on genetic resources has covered three main areas: defensive protection of genetic resources, the intellectual property aspects of ABS, and disclosure requirements in patent applications relating to genetic resources and traditional knowledge. Work on traditional knowledge has looked at both positive and defensive protection. The IGC has also prepared studies at the request of the Conference of the Parties to the CBD that have contributed to the processes of the Convention. 2.6 For Further Resources Links to our partners: Sociedad Peruana de Derecho Ambiental (Peruvian Environmental Law Society) ABS Resources & Links: Convention on Biological Diversity’s website on ABS United Nations University – Institute for Advanced Studies ABS Programme Santiago Carrizosa et al., eds., Accessing Biodiversity and Sharing the Benefits: Lessons from Implementing the Convention on Biological Diversity, IUCN Environmental Policy and Law Paper No. 54 (Gland, Switzerland & Cambridge: IUCN, 2004), online: IUCN Lyle Glowka, A guide to designing legal frameworks to determine access to genetic resources,Environmental Policy and Law Paper #34. (Bonn Germany & Gland, Switzerland: IUCN Environmental Law Center, 1998). Kerry ten Kate & Sarah A. Laird, The Commercial use of Biodiversity (London: Earthscan, 1999). Sarah A. Laird, ed., Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice (London: Earthscan: 2002). Kent Nnadozie et al., eds., African Perspectives on Genetic Resources: A Handbook on Laws, Policies, and Institutions (Environmental Law Institute: Washington, D.C., 2003). PROCEDURAL ASPECTS OF DEVELOPING ISDL REGIMES
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