Background
In order to give all nations of the world an incentive to practise conservation and sustainable use of their biological diversity, the Convention on Biological Diversity (CBD) sets out an international regime for access to and sharing of benefits generated from the use of genetic resources. The objective is to give the countries of origin an equitable share in the profits and technological progress from the use of genetic resources and associated traditional knowledge, and thus to provide benefits in return for conserving these resources – in their natural locations as far as possible. This includes the transfer of technology (including biotechnology) and know-how, which developing countries so urgently require, and their participation in genetic resources research.
The principles of the framework for international access to and sharing of genetic resources (ABS) are set out in Article 15 of the CBD. Access to genetic resources is contingent upon:
- prior informed consent (PIC),
- mutually agreed terms (MAT),
- adherence to sustainable uses, and
- fair and equitable sharing of the benefits arising from commercial and other utilization of genetic resources.
The Contracting Parties are called upon to create an appropriate statutory framework by adapting existing relevant laws or adopting new legislation.
A significant step was the adoption of the Bonn Guidelines on ABS at the 6th Conference of the Parties (COP) in The Hague in March 2002. The Bonn Guidelines are intended to support the Contracting Parties and other relevant actors in shaping national policy, legislative and administrative frameworks on ABS, and/or negotiating bioprospecting projects in line with the principles of the CBD.
From the perspective of many developing countries, however, the Bonn Guidelines are not adequate to ensure that the benefits from the utilization of genetic resources are equitably apportioned between the countries of origin and the users of the resources as the implementation of the Guidelines is not binding. Consequently, the Group of Like-Minded Megadiverse Countries has called in their Cancun Declaration to create an international regime to promote and safeguard the fair and equitable sharing of benefits from the use of biodiversity and its components. As elements of such a regime, it stipulates: the certification of the legal provenance of biological materials, PIC and MAT for the transfer of genetic material, as requirements for the application and granting of patents on this material in strict accordance with the conditions of access agreed by the countries of origin.
Subsequently the Plan of Implementation of the World Summit on Sustainable Development (WSSD), held in Johannesburg in September 2002, calls to negotiate within the framework of the CBD, bearing in mind the Bonn Guidelines, an international regime to promote and safeguard the fair and equitable sharing of benefits arising out of the utilization of genetic resources. COP 7 in Kuala Lumpur in February 2004 mandated the Ad Hoc Open Ended Working Group on Access and Benefit-Sharing (ABS Working Group) to negotiate such an international ABS regime.
During the first round of negotiations in Bangkok in February 2005 a number of options were tabled by the Contracting Parties covering the scope, objectives and elements of the regime. Parties, Governments, indigenous and local communities, international organizations and all relevant stakeholders are invited to present their views to the Executive Secretary latest three month prior to the next meeting of the ABS Working Group. They are also asked to facilitate further analysis of gaps in existing national, regional and international legal and other instruments relating to access and benefit-sharing by filling the matrix contained in annex II of the recommendation of the 3rd meeting of the ABS Working Group. The recommendation further encourages Parties to hold regional and other meetings to exchange views on the process, nature, scope, objectives and elements of an international regime, including on experience with relevant instruments, and transmit the outcomes to the CBD-Secretariat.
