Content uploaded by Brendan Coolsaet
Author content
All content in this area was uploaded by Brendan Coolsaet on May 05, 2015
Content may be subject to copyright.
Introduction. Access Benefit-Sharing and the Nagoya Protocol: The Confluence of
Abiding Legal Doctrines
Arianna Broggiato, Tom Dedeurwaerdere, Fulya Batur and Brendan Coolsaet
Pre-print. As published in the book ‘Implementing the Nagoya Protocol. Comparing Access
and Benefit-sharing Regimes in Europe.’
Full citation: Broggiato Arianna, Tom Dedeurwaerdere, Fulya Batur and Brendan Coolsaet (2015)
Access Benefit-Sharing and the Nagoya Protocol: The Confluence of Abiding Legal Doctrines. In
Coolsaet B, F Batur, A Broggiato, J Pitseys, and T Dedeurwaerdere (eds.) Implementing the Nagoya
Protocol. Comparing Access and Benefit-sharing Regimes in Europe: 1-29. Leiden ; Boston: Brill Nijhoff.
For more information see http://www.brill.com/products/book/implementing-nagoya-protocol
© , , | ./_
300854
Introduction. Access Benet-Sharing &
the Nagoya Protocol: The Conuence of Abiding
Legal Doctrines
Arianna Broggiato, Tom Dedeurwaerdere, Fulya Batur and
Brendan Coolsaet
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equit-
able Sharing of Benets Arising from their Utilization (hereafter, “the Nagoya
Protocol”) to the Convention on Biological Diversity (CBD) was adopted in
2010. Its objective is the fair and equitable sharing of the benets arising from
the utilization of genetic resources and traditional knowledge, with the aim of
contributing to the conservation of biological diversity and the sustainable use
of its components. As an international agreement, the Nagoya Protocol com-
plements the international legal regime related to the management of genetic
resources and traditional knowledge. However, this introductory chapter illus-
trates an innovative perspective aimed at demonstrating that the inception of
this legal regime long predates the discussion on access and benet-sharing
(ABS) of the CBD and is the product of the interaction of diferent legal elds: the
international laws on development, trade, environment and intellectual prop-
erty protection. The negotiation history (see Section II of this chapter) of the
diferent international documents related to these domains shows three core
motives that have driven international policy makers and civil society in pro-
moting the development of a specic regime for access and benet-sharing as
a protocol to the CBD. The rst motive is the ght against misappropriation of
natural resources, which is predominant in the global social movements
focusing on the right to development and environmental justice. The specic
misappropriation of genetic resources and traditional knowledge (TK) was
particularly brought to light through the debate on the emergence of highly
exclusive intellectual property rights’ legislations in various countries around
the world. The second political motive is the ethical duty to conserve the Earth’s
limited resources, which gained public attention through the emergence of the
internationally prominent environmental movement in the 1970ies, and was
1 The hypothesis that the concept of benet-sharing long predated the discussion on ABS of
the CBD and it is the product of the interaction between three elds of international law is
here presented for the rst time by the authors of this chapter, therefore the argumentations
lack in references to previous literature.
0002480442.INDD 1 3/25/2015 7:04:11 PM
.
300854
institutionalized through the 1972 Declaration of the United Nations Conference
on the Human Environment (hereafter, “Stockholm Declaration”) and the
numerous subsequent international and regional conservation treaties. The
third motive is the promotion of international cooperation for scientic
research in support of the two rst motives.
Traces of these three political motives can be found in all of the main inter-
national documents related to genetic resources and traditional knowledge.
They have however had diferent weights in the development of the diferent
sectors of international law making. The core foundation of the rst motive is
the fundamental principle of sovereignty of a State over its natural (tangible)
resources, which inspired the rst claim to the right to development and which
already included the basic principles of benet-sharing within the early inter-
national documents. This motive is still very important in the current debate,
in particular because of its focus on people centred development which
announced the current emphasis on the protection of traditional know ledge
associated with genetic resources. The environmental motive emerged to bal-
ance the risk of the depletion of the resource. However, although biodi versity
conservation is the ocial underlying principle of the CBD, it can be argued
that the more utilitarian “sustainable use” objective focusing on a
monetization of biodiversity got the upper hand. Finally, the central role of
research and the consequent necessity to support the development of scientic
capabilities of developing countries was felt strongly in the 1970s. It nonethe-
less lost its weight at a later stage and disappeared from the international law
making, to arguably regain momentum in the beginning of this century through
2 Declaration of the United Nations Conference on the Human Environment, U.N. Doc.
A/Conf.48/14/Rev. 1 (1973); 11 ILM 1416 (1972).
3 Among many others: the 1972 Convention concerning the Protection of the World Cultural
and Natural Heritage (UNESCO); the 1973 Agreement on the Conservation of Polar Bears; the
1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES); the 1979 Convention on the Conservation of Migratory Species of Wild Animals
(CMS).
4 UNGA Resolution 1803 (XVII) of 14 December 1962 “Permanent sovereignty over natural
resources”; UNGA Resolution 523 of 12 January 1952 on “Integrated economic development
and commercial agreements.”
5 In 1992, germplasm and associated traditional knowledge are increasingly considered as raw
material for the biotechnology industry and, thus, as a tradable economic goods. See Alain
Lipietz, “Enclosing the Global Commons: Global Environmental Negotiations in a North–
south Conictual Approach,” in The North the South and the Environment, eds. Bhaskar, V. and
Glyn, A. (London: Earthscan, 1995): 118–142; Marc Hufty, “La gouvernance internationale de la
biodiversité,” Etudes internationales 32 (2001): 5–29; Catherine Aubertin and Geofroy
Filoche, “The Nagoya Protocol on the use of genetic resources: one embodiment of an end-
less discussion,” Sustentabilidade em Debate 2 (2011).
0002480442.INDD 2 3/25/2015 7:04:11 PM
300854
the legal regimes governing agricultural plant genetic resources and within the
Nagoya Protocol.
The chapter’s hypothesis is that the adoption of the Nagoya Protocol to the
Convention on Biological Diversity in 2010 is an attempt to strike a balance
between these three political motives, and their underlying legal and political
doctrines. The Protocol is expected to lay the ground for the long needed legal
certainty for the many players involved in sustainable use, conservation and
international exchange of genetic resources and traditional knowledge. The
way that the three motives however will be translated into practices will depend
on the concrete implementation in the national countries’ legislations across
the world. For this reason, it is important to build international experience
with balanced implementation eforts that satisfy these three motives and to
learn from best country practices. The authors of this collective volume aim to
contribute to eforts in that direction, by gathering the most up to date knowl-
edge on the on-going implementation eforts of the Nagoya Protocol in Europe.
This introductory chapter will therefore rst describe the ABS legal frame-
work by introducing the main ABS legal instruments and their characteristics
(see Section I). It will then illustrate the reach and efects of the three afore-
mentioned policy motives that can be identied in the international law of
genetic resources and traditional knowledge management (Section II). To con-
clude the third Section of the chapter will describe the structure and the
research questions behind this publication.
I The ABS Legal Framework
The Convention on Biological Diversity and the Nagoya Protocol
The Nagoya Protocol, adopted in 2010 and entered into force on October 12
2014, was negotiated under the Convention on Biological Diversity. The Con-
vention on Biological Diversity, signed in May 1992 and entered into force in
December 1993, is the rst international conservation agreement addressing
biological diversity as a whole rather than through sectorial approaches
focusing on specic species, ecosystems or sites. Its objectives are the conser-
vation of biological diversity, the sustainable use of its components and the
fair and equitable sharing of the benets arising from the utilization of genetic
resources. The broad objectives of the CBD are a consequence of the oppos-
ing interests of developing and developed countries: the former ones were not
6 CBD Article 1.
7 Thomas Greiber, et al., An Explanatory Guide to the Nagoya Protocol on Access and Benet-
sharing (Gland: IUCN, 2012), 4.
0002480442.INDD 3 3/25/2015 7:04:11 PM
.
300854
willing to accept a commitment only focused on biodiversity conservation, so
the “Rio package deal” conditioned their support for conservation obligation
to socio-economic considerations and to the obligation of developed countries
(more advanced in biotechnology) to share the benets gained from the use of
genetic material. The Convention is a framework treaty setting down the basic
principles Parties have to follow in providing for the conservation and sustain-
able use of biological diversity and in granting access to their genetic resources,
leaving to each Party to implement those principles in its own territory and
according to its own policies and legislations.
The conservation and sustainable use clauses of the Convention impose to
Contracting Parties obligations to develop national strategies, plans or pro-
grammes; to identify components of biological diversity, monitor them and to
identify processes and activities which might have an adverse impact on the
biological diversity; and to adopt measures for in situ conservation and ex situ
conservation (see Section II.2). Research which contributes to the conserva-
tion and sustainable use of biological diversity shall be promoted by Contracting
Parties, particularly in developing countries.
The Convention recognizes the states’ sovereign right to exploit their own
biological resources and that the authority to determine access to genetic
resources rests within the national government and is subject to national
legislation. Access to genetic resources shall be subject to prior informed
consent (PIC) of the country providing the resources, if this is required by its
legislation, and should be granted on mutually agreed terms (MAT) between
the provider and the user. Therefore the ABS concept is based on the bilat-
eral relationship between a provider of a genetic resource and a user of this
resource.
The Convention applies in relation to each Contracting Party to compo-
nents of biological diversity in areas within the limits of its national jurisdic-
tion and to processes and activities carried out under its jurisdiction or control.
While the provisions on access apply only to genetic resources, the provisions
on conservation and sustainable use cover all biological diversity, including
genetic resources. The Convention covers access to genetic resources in coun-
tries of origin after the entering into force of the CBD in those countries. It is
important to remember that most of the genetic resources collected in ex situ
collections (see Section I.3) were collected prior to the CBD entering into force
for the country holding the collection.
As far as the relationship with other international treaties on biological
diversity is concerned, the CBD provides that its provisions shall not afect the
rights and obligations of any Contracting Party deriving from any existing
agreement, except where the exercise of those rights and obligations would
0002480442.INDD 4 3/25/2015 7:04:11 PM
300854
cause serious damage or threat to biological diversity. The CBD Conference
of the Parties recognized later on the importance of the International
Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) (See
Section I.2).
Article 15.7 of the CBD prescribes that each Contracting Party shall take leg-
islative, administrative or policy measures with the aim of sharing in a fair and
equitable way the results of research and development and the benets arising
from the commercial and other utilization of genetic resources with the
Contracting Party providing them.
Few CBD Parties had the legal capacity to translate the CBD provisions
into national ABS legislations and most industrialized Parties were reluctant
to adopt measures supporting efective benet-sharing. As a consequence
several megadiverse countries adopted restrictive legislation on access to
genetic resources, in order to protect their resources from the risk of “biopi-
racy.” This lead to a visible lack of implementation of the CBD’s third objective
of sharing of the benets arising from the utilization of genetic resources.
The rst attempt to provide more detailed guidance on ABS was the adoption
by the CBD Conference of the Parties of the non-legally binding Bonn
Guidelines in 2002. The Bonn Guidelines aimed at guiding governments in
the establishment of legislative, administrative or policy measures on ABS,
but still a few countries adopted domestic ABS legislations after their
adoption.
In the same year, to further advance the third objective of the CBD, the 2002
World Summit on Sustainable Development in Johannesburg called for
the negotiation of an international regime to promote and safeguard the fair
8 CBD Article 22.
9 CBD Decision VI/6. For a complete analysis of the relationships between the CBD and the
ITPGRFA see Study on the relationship between an international regime on ABS and
other international instruments and fora which govern the use of genetic resources The
International Treaty on Plant Genetic Resources for Food and Agriculture and the Food
and Agriculture Organisation’s Commission on Genetic Resources for Food and Agriculture.
Prepared by Jane Bulmer, IUCN Environmental Law Centre. UNEP/CBD/WG-ABS/7/
INF/3/Part.1. 3 March 2009.
10 Elisa Morgera et al., The Nagoya Protocol on Access and Benet –sharing in Perspective.
Implications for International Law and Implementation Challenges (Leiden: Martinus
Nijhof, 2013), 5.
11 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the
Benets Arising out of their Utilization (Bonn Guidelines), CBD Decision 6/24, “Access
and Benet-sharing as Related to Genetic Resources” (27 May 2002) UN Doc UNEP/CBD/
COP/6/20.
0002480442.INDD 5 3/25/2015 7:04:11 PM
.
300854
and equitable sharing of the benets arising from the utilization of genetic
resources. In 2004 the CBD Conference of the Parties mandated its Ad Hoc
Open-ended Working Group on Access and Benet-sharing to elaborate and
negotiate an international regime on access to genetic resources and benet-
sharing in order to efectively implement Article 15 and Article 8(j) of the
Convention and its three objectives. The outcomes of these negotiations brought
to the adoption of the Nagoya Protocol in October 2010. Its objective is the fair
and equitable sharing of the benets arising from the utilization of genetic
resources and traditional knowledge, with the aim of contributing to the con-
servation of biological diversity and the sustainable use of its components.
The Protocol is aimed at operationalizing the third objective of the CBD by
setting up rules and procedures on access, benet-sharing, and compliance.
Therefore it is further detailing the rights and obligations of the CBD in relation
to genetic resources and traditional knowledge associated with such resources,
thus developing further the concept of benet-sharing. The Protocol claries key
concepts of the ABS eld, such as “utilization of genetic resources” and “deriva-
tives”; it illustrates the key elements of national measures in provider and user
countries; and it strengthens the link between ABS and traditional knowledge. It
applies to access over genetic resources as well as traditional knowledge associ-
ated with them, and to the benets arising from the “utilization” of such resources
and knowledge, that is to say genetic resources over which States exercise sover-
eign rights. The reference to the utilization in the description of the scope
expands the material scope of application to naturally occurring biochemical
compounds, even if they do not contain functional units of heredity. The
Protocol includes innovative clauses on the possible future negotiation of a
global multilateral benet-sharing mechanism, that could be used for sharing
the benets arising out of the utilization of genetic resources coming from areas
outside national jurisdiction; and the cooperation eforts for transboundary sit-
uations of genetic resources found in situ within the territory of more than one
Party, or TK associated with genetic resources shared by one or more indigenous
and local communities in several Parties. It also strengthens the CBD obligation
to “promote and encourage research which contributes to the conservation and
sustainable use of biological diversity, particularly in developing countries,” indi-
cating the adoption of “simplied measures on access for non-commercial
research purposes, taking into account the need to address a change of intent for
such research.”
12 United Nations, “Report of the World Summit on Sustainable Development” (2002) UN
Doc A/CONF.199/20, Resolution 2: Johannesburg Plan of Implementation, paragraph 44.o.
13 Thomas Greiber, et al., An Explanatory Guide, 70.
0002480442.INDD 6 3/25/2015 7:04:11 PM
300854
The Protocol’s system of compliance is based on a mixture of international
and domestic measures, such as the obligation on users to respect national
laws on access; the monitoring measures including the obligations to desig-
nate checkpoints, to issue internationally recognized certicate of compliance
as proof of legal acquisition in provider countries; the establishment of an
Access and Benet-sharing Clearing House for sharing information related to
access and benet-sharing; and the future discussions on procedures and insti-
tutional mechanisms to promote compliance and to address cases of non-
compliance in a cooperative way.
The Protocol is the result of six years of intergovernmental negotiations and
of the consensus adoption by 193 CBD Parties at the tenth meeting of the
Conference of the Parties (COP) to the CBD of the compromise text proposed
by the Japanese delegation, in order to break through the deadlock of the nego-
tiations. This politically very successful strategy prevented the rigorous legal
consistency check that normally take place at the end of a treaty negotiation,
therefore this created some room for interpretative questions.
As far as relationship with other international treaties on genetic resources
is concerned, the Protocol recognizes the specialized international ABS instru-
ments that are consistent with and does not run counter to the objectives of
the CBD and the Protocol and does not apply for the Parties to such specialized
instruments in respect of the specic genetic resources covered by and for the
purpose of the specialized instruments. However the Protocol call for a mutu-
ally supportive manner of implementation with other international instru-
ments relevant to the Protocol.
International Instruments for Plant Genetic Resources for Food
and Agriculture
The need to design an ad hoc instrument for the conservation, but also the
sustainable and equitable use of plant genetic resources for food and agricul-
ture (PGRFA) while ensuring the widest possible access to germplasm for
research and development was espoused by the international community as
early as the 1980’s. Policy discussions on the international management and
status of plant genetic resources started in the 1970’s: they led to the adoption
of the FAO Global System for the Conservation and Utilisation of PGRFA in
1983. This package addressed both in situ and ex situ agrobiodiversity manage-
ment, and comprised of a non-binding yet promising international agreement,
14 Elisa Morgera et al., The Nagoya Protocol on Access and Benet–sharing.
15 Nagoya Protocol Article 4.4.
16 Nagoya Protocol Article 4.3.
0002480442.INDD 7 3/25/2015 7:04:11 PM
.
300854
the International Undertaking for Plant Genetic Resources(IU). The International
Network of ex situ Collections was established along with the Commission on
Plant Genetic Resources for Food and Agriculture, the rst permanent inter-
governmental body specically dedicated to PGRFA. The Undertaking, adopted
at the twenty-second session of the FAO Conference held in Rome professed
its goals to include the exploration, preservation, evaluation and availability of
PGRFA for plant breeding and scientic purposes. The IU identied plant
genetic resources as a heritage of mankind (HM). The Undertaking originated
from the early practice within the Consultative Group on International
Agricultural Research (CGIAR) of granting free access and free exchange of
plant genetic resources for food and agriculture, then however this practice
was hampered by a shortage of funds for public research and so by the privati-
zation of agricultural research in the 80s. The system was born and drafted as
an open access system, and then it was characterized by contrasting interests:
on one hand the developing countries wanted to keep control over the abun-
dant PGRFA, while the developed ones wanted to maintain control over the
rened products of breeding for engineering. So the battle was between sover-
eignty on one side and intellectual property on the other hand, as the two dif-
ferent tools chosen respectively by developing and developed states to protect
their interests.
In the meantime, the CBD and its national sovereignty principle got adopted
in 1992, followed by the international minimum intellectual property (IP) pro-
tection standards of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement) two years later, urging for an adaptation
of the international agricultural community to the new legal landscape. The
Commission on Genetic Resources for Food and Agriculture set out to
re-negotiate the legal component of the FAO Global System, an efort that
took “six and a half arduous years,” mostly because of the polarisation between
developed and developing countries. The debates initiated before the UN Food
and Agriculture Organisation came about as “heavily politicised, with con-
cerns about intellectual property rights and national germplasm embargoes”
that were set up through other international instruments. Adopted by the
17 Resolution 8/83 of the Twenty-second Session of the FAO Conference, Rome, 5–23
November 1983.
18 The CGIAR s an international organisation which funds and co-ordinates research into
agricultural crop breeding with the goal of “reducing rural poverty, increasing food secu-
rity, improving human health and nutrition, and ensuring more sustainable management
of natural resources.” It was established on May 19, 1971.
19 Agreement on Trade-Related Aspects of Intellectual Property Rights, 1869 UNTS 299;
33 ILM 1197 (1994).
0002480442.INDD 8 3/25/2015 7:04:11 PM
300854
Conference in November 2001, the International Treaty on Plant Genetic
Resources for Food and Agriculture came into force in June 2004. The objec-
tives of the Treaty are “the conservation and sustainable use of plant genetic
resources for food and agriculture and the fair and equitable sharing of the
benets arising out of their use, in harmony with the Convention on Biological
Diversity, for sustainable agriculture and food security.” In its conservation
angle, it advocates an “integrated approach to the exploration, conservation
and sustainable use” of agrobiodiversity, where both in situ and ex situ eforts
are equally acknowledged. The FAO Treaty re-arms the sovereignty of States
over their own plant genetic resources for food and agriculture. Through the
exercise of this sovereignty Member States determine their own access policy.
Moreover, they agreed to establish a Multilateral System (MLS) to facilitate
access to plant genetic resources for food and agriculture, and to share, in a fair
and equitable way, the benets arising from the utilization of these resources.
This facilitated access shall be pursuant to the standard material transfer
agreement (SMTA). Any benets that arise from the use of these resources
under the MLS shall be shared fairly and equitably. Thus facilitated access is
required for a closely dened set of circumstances: for the purpose of utiliza-
tion and conservation for research, breeding and training for food and agricul-
ture. The scope of the ITPGR covers all plant genetic resources for food and
agriculture, however, the MLS was established to deal with a subset of those
resources, which are listed in Annex I to the ITPGR. Let alone a comprehensive
evaluation of the Multilateral System that goes beyond the scope of this chap-
ter, there are many issues of eciency that underpin the System and do not
create enough incentives for the private sector to step into it.
As far as the relationship with other international instruments dealing
with genetic resources the ITPGR is a subsequent agreement to the CBD
and arguably a form of lex specialis, therefore its MLS prevails on the
20 The MLS facilitates access to 35 crop species and 29 forage species upon which the world
is interdependent and which are critical to food security. These are held by governments
and the International Agricultural Research Centres of the Consultative Group on
International Agricultural Research.
21 See ITPGR Resolution 2/2006.
22 ITPGR Article 13.2.
23 ITPGR Article 12.
24 ITPGR Article 3.
25 Study on the relationship between an international regime on ABS and other interna-
tional instruments and fora which govern the use of genetic resources The International
Treaty on Plant Genetic Resources for Food and Agriculture and the Food and Agriculture
Organisation’s Commission on Genetic Resources for Food and Agriculture. Prepared by
0002480442.INDD 9 3/25/2015 7:04:11 PM
.
300854
CBD obligations. The ITPGR should be implemented in harmony, and in
mutual supportiveness, with the CBD and the Nagoya Protocol.
Conservation in Ex Situ Collections
Ex situ conservation is dened by Article 2 of the CBD as “the conservation of
components of biological diversity outside of their natural habitats.” Ex situ
collections are collections of genetic resources held for example in gene banks,
botanical gardens, arboreta, zoos, in vitro storage and DNA storage. According
to the CBD, contracting Parties shall use ex situ conservation methods, prefer-
ably in the country of origin of such components, to support in situ measures.
Moreover, contracting Parties are required to adopt ex situ measures to facili-
tate the rehabilitation of threatened species and the reintroduction of them
into their natural habitats. This connes their signicance to that of returning
species to their habitual situ. However, culture collections conserving micro-
bial genetic diversity have acquired a growing importance within the ABS pan-
orama, thanks to the inclusion of microbial genetic resources within the scope
of the CBD and the growing scientic importance of microbial genetic resources
in the last decades.
Most research undertaken at the level of ex situ collections, if not all, is of
a non-commercial nature, aimed at improving understanding of genetic
diversity and how to best conserve it. Moreover, most of the genetic
resources found ex situ were accessed before the entry into force of the CBD
in biodiversity-rich countries. The Bonn Guidelines prescribes that for ex
situ collections, prior informed consent should be obtained from the compe-
tent national authority(ies) and/or the body governing the ex situ collection
concerned as appropriate. It is important to notice that some ex situ collec-
tions, such as botanical garden and herbaria consider the whole of their col-
lection as falling under the obligations of the CBD, regardless of the date of
the rst collection of the resources, due to ethical and pragmatic reasons.
Most of ex situ collections networks have adopted non-binding ABS codes
of conduct, best practices and /or guidelines, such as for example:
Jane Bulmer, IUCN Environmental Law Centre. UNEP/CBD/WG-ABS/7/INF/3/Part.1. 3
March 2009, 9.
26 Where Parties to the CBD are Contracting Parties to the ITPGR, in accordance with Article
30 of the Vienna Convention on the Law of Treaties, on the application of successive trea-
ties relating to the same matter, then the legal relationship of the ITPGR would prevail
among them to the extent of the scope of the ITPGR.
27 Thomas Greiber, et al., An Explanatory Guide, 15.
0002480442.INDD 10 3/25/2015 7:04:11 PM
300854
• TheMicro-OrganismsSustainableUseandAccessRegulationInternational
Code of Conduct (MOSAICC) developed within the framework of culture
collections in and revised in . It is currently under revision in light
of the Nagoya Protocol and translated into the Transparent User Friendly
System of Transfer for Science and Technology (TRUST);
• The International Plant Exchange Network (IPEN) Code of Conduct for
botanic garden governing the acquisition, maintenance and supply of living
plant material, developed in ;
• TheConsortiumofEuropeanTaxonomicFacilities(CETAF)CodeofConduct
and Best Practice for Access and Benet-sharing, developed in .
The goal of an ABS codes of conduct is triple: rst a political recognition and
support of the international ABS framework by the institution drafting the
code; second the raising awareness among the practitioners working within
a group of researchers; and third the facilitation of exchanges of resources by
the creation of a group where exchanges are governed by the same standard-
ized rules that implies ABS compliance, thus minimising bureaucracy. The
combination of dedication to the respect of the ABS principles and stan-
dardized and facilitated exchanges among the group creates a sort of volun-
tarily “network of compliance” with ABS international rules, on which users
can rely.
The Nagoya Protocol encourages Parties to develop and use voluntarily
codes of conduct, guidelines and best practices in relation to ABS, and the
Open-ended Ad Hoc Intergovernmental Committee (ICNP) for the Nagoya
Protocol on ABS, acting as an interim governing body for the Nagoya Protocol
until the rst meeting of the Parties to the Protocol takes place, has been gath-
ering and discussing recent updates of such documents. Moreover, the EU
Regulation has recognized the strong eforts towards ABS compliance of the
culture collections, working on the MOSAICC code of conduct even before
theadoption of the Bonn Guidelines, through the creation of a register of col-
lections established and maintained by the European Commission. Only
collections that fulll certain criteria (linked to ABS requirements) can become
part of the register, and users that obtain genetic resources from a collection in
the register should be considered to have exercised due diligence as regards the
seeking of all information necessary from the point of view of ABS.
The ex situ collections are therefore important actors in the eld of ABS.
Moreover, given their role in conserving biodiversity and ensuring access for
scientic research purposes and their usually publicly funded origin, they pro-
vide to the society fundamental services. Their advanced raising awareness
activities in the eld of ABS is of paramount importance.
0002480442.INDD 11 3/25/2015 7:04:11 PM
.
300854
II From the Right to Development to International Concern
for Sustainable Use and Global Biodiversity Research
After the brief description of the main features of the international legal
framework dealing with ABS, the central section of the chapter illustrates in
depth the innovative hypothesis that the concept of benet-sharing long pre-
dated the discussion on ABS of the CBD, and that it is the product of the inter-
action between three elds of international law is here presented for the rst
time by the authors of this chapter, therefore the argumentations lack in refer-
ences to previous literature.
Rationale and Origins of the “Right to Development Motive”
in the ABS Regime
The legal framework on ABS is based on the sovereignty of states over their
natural resources. The root of the principle of sovereignty over natural resources
(and genetic resources, see later) is the traditional principle of international
law of sovereignty and territorial jurisdiction of a state. In 1962, through its
Resolution on Permanent Sovereignty over Natural Resources, the United
Nations General Assembly (UNGA) recognised “the inalienable right of all
States freely to dispose of their natural wealth and resources in accordance
with their national interests.” This principle has rstly been encoded in the
post-war era and it has been used as a tool by international economic law to
support two main concerns of the United Nations: economic development and
self-determination of colonial people. In the 1950s, developing countries
advocated this principle to secure the benet arising from the exploitation of
natural resources and to provide newly independent states with legal tools to
defend their economic sovereignty against property and contractual rights
28 Resolution 1803 (XVII) of 14 December 1962 “Permanent sovereignty over natural
resources”: the UNGA created in 1958 the Commission on Permanent Sovereignty over
Natural Resources “to conduct a full survey of this basic constituent of the right to self-
determination, with recommendations, where necessary, for its strengthening” and the
work of the Commission resulted in the adoption of the Declaration on Permanent
Sovereignty over Natural Resources in UNGA Resolution 1803. It is important to underline
that Resolution 1803 of 1962 can be considered a binding Resolution, apart from the
strong political force every General Assembly Resolution has, because principle 7 claries
that the violation of the rights of peoples and nations to sovereignty over their natural
wealth and resources is contrary to the spirit and principles of the Charter of the United
Nations.
29 Nico J. Schrijver, “Natural Resources, Permanent Sovereignty over,” Max Planck Encyclo-
pedia of Public International Law (New York, NY: Oxford University Press, 2010).
0002480442.INDD 12 3/25/2015 7:04:11 PM
300854
claimed by foreign states and companies. By 1952, the United Nations General
Assembly had already underlined that the right of developing countries to
determine access to their natural resources was a pre-requisite to foster their
economic development “in accordance with their national interests.”
Ever since the rst mention by the United Nations General Assembly, the
right to use national resources has been strongly linked to the right to develop-
ment. Already in 1952, Resolution 523 on “Integrated economic development
and commercial agreements” underlined the root of the problem of the
upcoming globalised market where the contractual power of less developed/
newly independent states in selling raw materials and resources was not pro-
portionate to the buying states (the developed ones). The Resolution recalled
that a necessary requisite for
economic development plans in under developed countries is the cre-
ation of conditions under which these countries could more readily acquire
machinery, equipment and industrial raw materials for the goods and
services exported by them.
Therefore, commercial agreements should facilitate the movement of such
machinery, equipment and industrial raw material for the development and
improvement of standards of living in under-developed countries. Moreover
such agreements “shall not contain economic or political conditions violating
the sovereign rights of the under-developed countries, including their rights to
determine their own plans for economic development.” This rst very weak
safeguard of the contractual powers of the countries providing natural resources
can be seen as the root of the principles of transfer of technology and mutually
agreed term for the achievement of fair and equitable benet-sharing, later
codied in the Convention on Biological Diversity.
By the end of 1952, the United Nations General Assembly went back to these
principles in Resolution 626 on the Right of States to exploit freely natural
wealth and resources. The Resolution referred to the good faith and balance
within the economic exchange of natural resources: it encouraged member
States “to have due regard, consistently with their sovereignty, to the need for
maintaining the low of capital in conditions of security, mutual condence and
economic cooperation among nations.” This passage is a very light obligation on
states to keep a balance and avoid disproportionate ow of capital in economic
30 Resolution 523 of 12 January 1952 on Integrated economic development and commercial
agreements (Preamble, rst paragraph).
31 United Nations General Assembly Resolution 523, preamble.
0002480442.INDD 13 3/25/2015 7:04:11 PM
.
300854
transactions with developing states, within the use and exploitation of natural
resources. It can be argued that the principle of benet-sharing echoed this
UNGA call. The same Resolution also recognised the need to encourage under
developed countries towards the proper use and exploitation of their natural
wealth and resources, which anticipates the issue of sustainable use of
resources that came to the foreground of international attention in the 1970ies.
Going back to the economic exchange of natural resources another Resolution
in 1952 (Resolution 523), expressly considers that “commercial agreements
shall not contain economic or political conditions violating the sovereign
rights of the under-developed countries, including the right to determine their
own plans for economic development.” Another step forward was taken ten
years later, with Resolution 1803 of 1962, which underlines that “economic and
nancial agreements between the developed and the developing countries
must be based on the principles of equality and of the right of peoples and
nations to self-determination.” International soft law is here interfering with
national commercial practices in favour again of an economic balance in the
exchange of natural resources. Resolution 1803 of 1962 goes even further by
stating that in case where authorization for activities of exploration, develop-
ment and disposition of national natural resources is granted by a state to a
foreigner, the prots arising from such activity “must be shared in the portions
freely agreed upon, in each case, between investors and the recipient state.” It
also added that “due care being taken to ensure that there is no impairment,
for any reason, of that State’s sovereignty over its natural wealth and resources.”
This text is the origin of the modern principles of prior informed consent and
benet-sharing upon mutually agreed terms.
Another highly relevant factor is the fact that Resolution 1803 focused also
on people and not only on the State. It specied that
the right of peoples and nations to permanent sovereignty over their nat-
ural wealth and resources must be exercised in the interest of their national
development and of the well-being of the people of the State concerned.
This principle, even if not yet related to the awareness of the key role of indig-
enous and local communities in the conservation and sustainable use of bio-
logical diversity, laid the ground for the later work for the social movements in
32 Resolution 523 of 12 January 1952 on Integrated economic development and commercial
agreements paragraph. 1 (b).
33 United Nations General Assembly Resolution 1803 (XVII) on Permanent sovereignty over
natural resources, Preamble.
0002480442.INDD 14 3/25/2015 7:04:11 PM
300854
defence of the specic rights of these communities in the context of the access
and benet-sharing regime.
In 1974, during the Sixth Special Session of the General Assembly exclusively
devoted to the problems of raw materials and development, the UNGA adopted
Resolution 3201 entitled Declaration on the Establishment of the New
International Economic Order (NIEO Declaration), submitted by the Group of
77 made up of nearly all developing countries. The NIEO Declaration pro-
claimed “full permanent sovereignty of every State over its natural resources
and all economic activities,” including the right to nationalise resources or to
transfer their ownership to nationals. The NIEO Declaration thus reinforced
principle 10 of the Stockholm Declaration (see SectionII.2) by calling for a
just and equitable relationship between the prices of raw materials, primary
commodities, manufactured and semi-manufactured goods exported by devel-
oping countries and those imported by them. From that point onwards, the
motive of the right to development easily lead international law-making and
the rearmation of the claims of sovereignty over natural resources in the
Convention on Biological Diversity.
From 1970ies onwards, the growing discussions on the looming global envi-
ronmental crisis reinvigorated the right to development claim and the related
sovereignty rights, as developing countries saw “the possibility of linkage
between environmental concerns and reform of the international economic
order.” The 1971 Founex Report on Development and Environment was the
rst authoritative study placing the environment-development nexus on the
international agenda. As a consequence, Principle 11 of the Stockholm Declar-
ation already called for “environmental policies of all States [to] enhance and
not adversely afect the present of future development potential of developing
countries”; and “resources should be made available to preserve and improve
the environment” with a special attention to developing countries and the
costs they have to face to incorporate environmental concerns in their devel-
opment plans.
34 NIEO Declaration Paragraph 4 (e).
35 Declaration of the United Nations Conference on the Human Environment, U.N. Doc.
A/Conf.48/14/Rev. 1 (1973); 11 ILM 1416 (1972).
36 Marc Williams, “Re-Articulating the Third World Coalition: The Role of the Environmental
Agenda,” Third World Quarterly 14 (1993): 15.
37 Founex Report on Development and Environment: a Report Submitted by a Panel of
Experts Convened by the Secretary General of the United Nations Conference on the
Human Environment, June 4–12, 1971, in 586 International Conciliation 7 (1972).
38 Stockholm Declaration Principle 11.
39 Stockholm Declaration Principle 12.
0002480442.INDD 15 3/25/2015 7:04:11 PM
.
300854
In the years following the Stockholm Conference, the call for the right to
development further echoed in the global governance arena. The 1974 UNEP/
UNCTAD Cocoyoc Conference, for instance, is a watershed moment for mod-
ern environmentalism and paved the way for contemporary ABS principles.
The Conference’ Declaration explicitly supported “the setting up of strong
international regimes for the exploitation of common property resources” and
the idea of using the international commons “for the benet of the poorest
strata of the poor countries.”
Finally, the strengthening of sovereign rights over genetic resources and tra-
ditional knowledge should also be understood as a reaction to expanding enclo-
sure of biological material through intellectual property rights. More particularly,
the start of GATT’s Uruguay Round in 1986 and the discussions on the Trade
Related Aspects of Intellectual Property Rights (TRIPS), triggered by a booming
biotechnology industry, expanded the use of patents to biotechnology. In this
context, developing countries “abandoned the common heritage strategy
and successfully demanded reconrmation of national sovereign rights over gen-
etic resources.” Paradoxically, the call for increased sovereign control over
genetic resources was used by developed countries to justify the expansion of
intellectual property rights over these resources. In order to reap the benets from
this increased sovereignty, prots had to be generated, which required the estab-
lishment of a market and a mechanism for intellectual property protection, so the
argument went. The idea of genetic resources and traditional knowledge as a
new source of economic prosperity thus appealed to developed and developing
countries alike. This is why, in addition to increased sovereignty, the Convention
on Biological Diversity also recognizes the need for intellectual property rights.
The right to development, triggered by the unequal international political
and economic order of the 20th century, thus can be said to have laid the
40 The Cocoyoc Declaration inter alia coined the term “eco-development,” i.e. “ecologically
sound socioeconomic development,” which paved the way for the concept of sustainable
development.
41 Cocoyoc Delcration, adopted by the participants in the UNEP/UNCTAD symposium on
“Patterns of Resource Use, Environment and Development Strategies,” Cocoyoc, Mexico,
8–12 October, 1974.
42 Kristin Rosendal, “The Convention on Biological Diversity: Tensions with the WTO TRIPS
Agreement over Access to Genetic Resources and the Sharing of Benets,” in Institutional
Interaction in Global Environmental Governance: Synergy and Conlict among International
and EU Policies, eds. Oberthür and Gehring (Cambridge: MIT Press, 2006): 86.
43 Kal Raustiala and David G. Victor, “The Regime Complex for Plant Genetic Resources,”
International Organization 58 (2004): 277–309; Hufty, “La gouvernance internationale de
la biodiversité.”
0002480442.INDD 16 3/25/2015 7:04:11 PM
300854
groundwork of the claim for “fair and equitable sharing of benets,” the third
objective of the CBD. In this regard, the strong claim for sovereignty was seen
by developing countries as the only tool to exercise legal protection and acquire
benet-sharing, while developed countries relied on intellectual property
rights to get benets and to get back some of their investments in research.
Benet-sharing then emerged to counterbalance the strong IPRs assets built
up by developed countries, and as compensation for the keepers of traditional
knowledge.
Rationale and Origins of the “Sustainable Use Motive” in the ABS
Regime
International standards and objectives for the prevention or mitigation of
environmental harm have been established from the 1940’s onwards. The
regulation of biological diversity rst grew into a global priority with the inter-
national environmental negotiations back in the 1970’s, supported both by
conservationist pleas and requests for nancial compensations deriving from
the use of genetic resources.
Before the initiation of global environmental governance in the 1970’s, the
international regulation of genetic resources had long remained an untamed
and singular creature. Indeed, most of the environmental regulations had for-
merly been concerned with “truly” global resources, such as air for example,
where “joint international strategies for their use, conservation and develop-
ment have to be agreed.” As such and in their material form, biological
resources are linked to land and thus domestic in nature, as public or private
tangible goods, subject to the property regime set out in national laws. However,
the information found within these resources’ genotypes possess global public
goods qualities. Genetic resources thus do not conform to the traditional
44 International environmental agreements include purpose-specic conventions such as
the 1946 International Convention for the Regulation of Whaling (ICRW); regional agree-
ments such as the 1976 Barcelona Convention for Protection against Pollution in the
Mediterranean Sea; and also cross-cutting agreements such as the 1973 CITES Convention
on International Trade in Endangered Species of Wild Fauna and Flora.
45 See Philippe Sands, Principles of International Environmental Law (second edition)
(Cambridge University Press, 2003): 25–69.
46 As for instance the regulation of the ozone layer and its 1985 Vienna Convention and 1987
Montreal Protocol on Substances that Deplete the Ozone Layer; Timothy Swanson, “Why
Is There a Biodiversity Convention? The International Interest in Centralized Development
Planning,” International Afairs 75 (1997): 307–308.
47 Joseph Straus, “The Rio Biodiversity Convention and Intellectual Property,” International
Review of Industrial Property and Copyright Law 24 (1993): 602–603.
0002480442.INDD 17 3/25/2015 7:04:11 PM
.
300854
denition of global resources in international environmental law making. It is
important to note that in the rst international environmental instruments,
natural resources were only considered as tangible goods, raw materials.
Therefore, the aspect that was the target of regulation was the quantitative
transaction for the economic exploitation of the resources, as knowledge on
genetic resources was scarce in the 1950s and 1960s.
Biodiversity depletion concerns were however gradually recognised on
account of a “conuence of international dialogues that have existed for sev-
eral decades,” including but not limited to debates focusing on protected areas,
the sustainable use of natural resources or environmental funding, and the
international environmental law concerned with biological resources was
developed as a “snapshot of environmental conservation movements.” Its
more progressive pleas also include the desire to overcome the existing patch-
work of regulation covering selected species or areas, mainly through an eco-
systems approach, but also to address the issue of informational goods that
are part of such ecosystems.
With the 1972 Stockholm Declaration of the United Nations Conference on
the Human Environment, the duty that accompanied sovereign rights over
resources shifted from a right to use resources to a “responsibility to protect
and improve the environment for present and future generations.” Although
states have permanent sovereignty over their natural resources and the right to
determine their own environmental policies, they are not free to disregard pro-
tection of the environment of common spaces or of other states. Nevertheless,
developmental needs remain an obstacle to stronger environmental regulation
for developing and developed economies alike. The Declaration specied
48 The 1949 United Nations Scientic Conference on the Conservation and Utilisation of
Resources, made up of technical experts, focused on specic groups of natural resources
such as land, water, forests, fuels, minerals, and wild life, included a session on land natu-
ral resources, which also included chemurgy, food yeasts, and microorganisms. The con-
ference concentrated on shortage of resources due to increase of population and demand,
rather than the importance of the still unknown research information contained within
microorganisms. No or little consideration was given to resources as objects of research,
neither to what was then identied as the information contained in genetic material.
49 Timothy Swanson, “Why Is There a Biodiversity Convention? The International Interest in
Centralized Development Planning,” International Afairs 75 (1): 307–331.
50 International Law of relevance to Plant Genetic Resources: a practical review for scien-
tists and other professionals working with PGR. (2004).
51 Stockholm Declaration Principle 1.
52 Patricia Birnie and Alan Boyle, International Law and the Environment (Oxford University
Press, 2001).
0002480442.INDD 18 3/25/2015 7:04:11 PM
300854
that “environmental policies of all States should enhance and not adversely
afect the present or future development potential of developing countries”; and
“resources should be made available to preserve and improve the environment”
with a special attention to developing countries and the costs they have to face
to incorporate environmental concerns in their development plans. Therefore
the Stockholm Declaration called for the mobilisation of monetary resources
as an incentive for developing countries to adopt environmental legislations.
The origin of benet-sharing lays in this exchange of monetary resources as an
incentive for under developed countries. Amongst other endeavours having
followed the Stockholm Declaration, a soft-law instrument acknowledging
mankind’s responsibility for all species inhabiting the Earth had seen the light
of day through United Nations General Assembly Resolution 37/7 in 1982, com-
monly referred to as the “World Charter for Nature.” The Charter asserted that
“the degradation of natural systems owing to excessive consumption and mis-
use of natural resources […], leads to the breakdown of the economic, social
and political framework of civilization.”
Owing to these steps, the ocial advent of biodiversity came about during
the process leading to the 1992 United Nations Conference on Environment
and Development, otherwise known as the “Earth Summit” and the adoption
of the Convention on Biological Diversity. The Convention on Biological
Diversity is the product of the philosophy of sustainable development, where
the goal of environmental protection needs to be balanced with the need and
right to development.
Despite the preservation objective, the CBD also embodies a shift towards a
utilitarian economic exploitation of the resources, albeit in a sustainable way.
The growing attention to environmental protection does not only derive from
sudden awareness of the intrinsic value of natural wealth and/or from a better
understanding of the functioning of ecosystems. Indeed, as early as the energy
crises of the 1970ies, developing countries increasingly saw their natural
resources as an important strategic and economic bargaining chip. This led to
53 Stockholm Declaration Principle 11.
54 Stockholm Declaration Principle 12.
55 The rst stages of the adoption of the CBD can be traced back to a 1981 Resolution adopted
by the World Conservation Union’s General Assembly, requesting further analysis on a
potential international agreement on the conservation, accessibility and use of biological
resources; see Regine Andersen, Governing Agrobiodiversity. Plant Genetics and Developing
Countries (Ashgate, 2008): pp. 117–119, citing C. De Klemm, “Conservation of species: The
need for a new approach,” Environmental Policy and Law 9 (1982): 118–128.
56 Opened for signature on 5th June 1992, the CBD entered into force on 29th December
1993.
0002480442.INDD 19 3/25/2015 7:04:11 PM
.
300854
a growing understanding on the fact that the availability of genetic diversity
and traditional knowledge as a raw material for the biotechnology industry can
only be guaranteed through the protection of a strong variety of in situ ecosys-
tems (including humans), which is to be found in developing countries.
Unlike in the 60s and 70s, developed countries started questioning the efec-
tiveness of so-called “fortress conservation,” through which large areas of “vir-
gin” nature where freed from human interaction, and increasingly promote in
situ conservation and the concept of “sustainable use” of biodiversity. As
underlined in SectionI.1 as an efect of negotiation bargain between develop-
ing countries and developed ones, the second and third objectives of the
Convention thus became the “sustainable use of its components and the fair
and equitable sharing of the benets arising out of the utilisation of genetic
resources.”
The exchange of monetary resources as an incentive for the conservation of
biological diversity in developing countries was further institutionalized in the
CBD. Article 3 of the CBD rearms “the sovereign right (of States) to exploit
their own resources pursuant their own environmental policies”: this indicates
a balance between national environmental policies and, again, the right of
States to their economic development. The only limit put to such prerogative
seems to be the responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environment of other States or of areas
beyond the limits of national jurisdiction. This focus on development echoed
the approach of Rio Declaration on Environment and Development that had
shifted from an environmental to a development one. The Rio Declaration in
fact makes no reference to the conservation of ora, fauna, habitats and eco-
systems. However, the CBD focuses on in situ conservation and the protec-
tion of ecosystems, natural habitats (Article 8.d), re-appropriating the
conservation angle of the Stockholm Declaration.
The focus on utilisation and exploitation goes along with a broader change
in global environmental governance, which is the conuence of the neo-liberal
economic order of the 80s and 90s and environmental protection (termed
57 Lipietz, “Enclosing the Global Commons.”
58 Marian A.L. Miller, The Third World in Global Environmental Politics (London: Lynne
Rienner, 1995).
59 CBD Article 1, emphasis added.
60 CBD Article 3, emphasis added.
61 Ibid.
62 Schrijver, “Natural Resources.”
0002480442.INDD 20 3/25/2015 7:04:11 PM
300854
“liberal environmentalism”). With the Brundtland report, more economic
growth (mainly through liberalized market-mechanisms for environmental
management) was pictured as the solution for the protection of the environ-
ment. This was partially made possible through the extended sovereignty over
natural resources and the developing countries’ call for a compromise between
development and environmental protection. In the ABS context, the sustain-
able use approach thus can be seen as a compromise position between devel-
oped countries (who need genetic resources for biotechnology), developing
countries (who expect nancial returns in exchange with granted access to
their genetic resources) and global environmental groups (“newly enchanted
by market mechanisms”).
The liberal environmentalism approach of the CBD is further exemplied by
the fact that the CBD originally did not contain language on the obligation to
devote the benets to conservation of biological diversity. The underlying view
was that biological diversity served the purpose of utilization, which on its turn
generated benets and allowed for development in developing countries. In line
with the right to self-determination and to development, provider countries
could decide to use the monetary benets acquired through a benet-sharing
arrangement as they saw t. However, this was partially redressed in the 2002
Bonn Guidelines, which recommended redirecting benets towards measures
for the conservation of biological diversity and the sustainable use of its compo-
nents. The Nagoya Protocol further strengthened this encouragement.
Rationale and Origins of the “Scientic Research Motive” in the
Global ABS Regime
The research community is arguably the stakeholder group most afected by
access and benet-sharing under the CBD and the Nagoya Protocol: access to
genetic resources in almost all cases is undertaken with no commercial intent
at the time of access. It has been demonstrated that at the time when the
63 Steven Bernstein, “Liberal Environmentalism and Global Environmental Governance,”
Global Environmental Politics 2 (2002): 1–16.
64 Brundtland G.H. and World Commission on Environment and Development, Our com-
mon future: report of the World Commission on Environment and Development (Oxford
University, 1987).
65 Raustiala and Victor, “The Regime Complex for Plant Genetic Resources.”
66 CBD, Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the
Benets Arising out of their Utilization, 2002.
67 Nagoya Protocol Article 9.
68 Matthias Buck and Claire Hamilton, “The Nagoya Protocol on Access to Genetic Resources
and the Fair and Equitable Sharing of Benets Arising from their Utilisation to the
0002480442.INDD 21 3/25/2015 7:04:11 PM
.
300854
entry into force of the CBD was approaching (end of 1993), the amount of
exchange of plant genetic resources in food and agriculture for public research
purposes, within the Consultative Group on International Agricultural Research,
dropped considerably as a result of the re-armation of national sovereignty
over genetic resources under the CBD, in conjunction with the fear of legal
uncertainty over intellectual property right.
The importance of international cooperation for biodiversity research has
been recognized early on in the broader context of the debates in international
environmental soft law. The Stockholm Declaration underlines that the “free
ow of up-to-date scientic information and transfer of experience must be
supported and assisted, to facilitate the solution of environmental problems;
environmental technologies should be made available to developing
countries.” This requirement has been reiterated by the Rio Declaration on
Environment and Development that goes further in calling for states to “coop-
erate to strengthen endogenous capacity-building for sustainable development
by improving scientic understanding through exchanges of scientic and
technological knowledge, and by enhancing the development, adaptation, difu-
sion and transfer of technologies, including new and innovative technologies.”
In 1992 the Rio Declaration is putting forward the innovative idea that coop-
eration is aimed at strengthen endogenous capabilities rather than focusing
only on the transfer of technologies, which is more passive and less efective in
the view of developing countries.
The need for international scientic cooperation has been inspiring also the
international law making of some international binding treaties: the United
Nations Convention on the Law of the Sea, the Antarctic Treaty and the
FAO’s International Treaty on Plant Genetic Resources for Food and Agriculture
contain important obligations to this regards.
The whole Antarctic Treaty System (ATS), whose origin dated in 1959
when the Antarctic Treaty was signed, is focused on scientic research and the
Convention on Biological Diversity,” Review of European Community & International
Environmental Law 20 (2011): 59.
69 Michael Halewood, “Governing the management and use of pooled microbial genetic
resources: Lessons from the global crop commons,” International Journal of the Commons
4 (2010): 403.
70 Stockholm Declaration Principle 20.
71 Rio Declaration Principle 9.
72 United Nations Convention on the Law of the Sea, 1982, 21 ILM (1982), 1261.
73 1959 Antarctic Treaty, 19 ILM 860 (1980).
74 The Antarctic Treaty System is the whole complex of arrangements made for the purpose
of regulating relations among states in the Antarctic. At its heart is the Antarctic Treaty
0002480442.INDD 22 3/25/2015 7:04:11 PM
300854
promotion of international scientic cooperation. The main objectives of the
Antarctic Treaty are to demilitarize Antarctica and to ensure that it is used for
peaceful purposes only; to promote international scientic cooperation and to
set aside disputes over territorial sovereignty. Contracting Parties are obliged
to exchange scientic information, personnel and results “to the greatest
extent feasible and practicable.”
The 1982 United Convention on the Law of the Sea (UNCLOS) does not men-
tion genetic resources for historical reasons, but prescribes important rules for
the organization of marine scientic research (MSR), which can be considered
to apply to genetic resources. The UNCLOS requires States and international
organization (indeed stressing the aspect of international cooperation) to pro-
mote and facilitate the development and conduct of marine scientic
research. MSR, notwithstanding in which maritime area it is conducted,
must have peaceful purpose, respect the whole system of the law of sea (pro-
tection of the marine environment included) and cannot be the legal basis for
claim of appropriation of marine environment and resources. International
cooperation in MSR is to be promoted and to this end states and international
organizations are required to make available information on proposed major
programmes, their objectives and the knowledge resulting from MSR. These
obligations to share knowledge produced through marine scientic research
constitute non-monetary benet-sharing obligations of the UNCLOS that
are applicable both in areas within national jurisdiction and in areas beyond
national jurisdiction. Moreover States “shall actively promote the ow of scientic
itself. The Treaty is augmented by Recommendations adopted at Consultative Meetings,
by the Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 1991), and
by two separate conventions dealing with the Conservation of Antarctic Seals (London
1972), and the Conservation of Antarctic Marine Living Resources (Canberra 1980).
75 Antarctic Treaty Article I–IV.
76 Antarctic Treaty Article III.
77 UNCLOS Article 241.
78 UNCLOS Article 240–241.
79 UNCLOS Article 244.1.
80 Greiber Thomas, “Common Pools for Marine Genetic Resources,” in Common Pools of
Genetic Resources. Equity and Innovation in International Biodiversity Law, eds. Kamau and
Winter (Earthscan, 2013), 407. Broggiato Arianna, et al., “Fair and equitable sharing of
benets from the utilization of marine genetic resources in areas beyond national juris-
diction: Bridging the gaps between science and policy,” 49 Marine Policy (2014), 176. IUCN
Information Papers for the Intersessional Workshop on Marine Genetic Resources 2–3
May 2013, available at http://www.un.org/depts/los/biodiversityworkinggroup/documents/
IUCN%20Information%20Papers%20for%20BBNJ%20Intersessional%20Workshop%20
on%20MGR.pdf.
0002480442.INDD 23 3/25/2015 7:04:11 PM
.
300854
data and information and the transfer of knowledge resulting from marine
scientic research, especially to developing States, as well as the strengthening
of the autonomous marine scientic capabilities of developing States.” This
focus on the development of own scientic capabilities of developing coun-
tries was innovative at that time. It survived and inspired the 1992 Rio
Declaration (as seen above) but it was lost in favor of the more passive technol-
ogy transfer obligation emerged in the negotiation of the CBD, that same year
(see below).
The 1984 International Undertaking on Plant Genetic Resources, as well as
the ITPGRFA, adopted a research oriented approach: access to resources is to
be facilitated for research purposes, plant breeding and conservation. The
International Undertaking is about collaboration on research and interdepen-
dency rather than direct commercial use. The ITPGRFA is also a research ori-
ented treaty rather than an environmental one. It stresses the importance of
international cooperation and transfer of technologies.
However, with the above-mentioned exceptions (the United Nations Con-
vention on the Law of the Sea, the Antarctic Treaty and the FAO’s International
Treaty on Plant Genetic Resources for Food and Agriculture), the international
legal framework has been limited to the “commercial” end of the research
chain and focused mainly on the issues surrounding technology transfer and
intellectual property rights. As a result, outside the specic areas of applica-
tion of these international agreements, there is not clear legal framework
under public international law establishing the rights and duties of global
research collaborations with basic knowledge assets for scientic research, in
spite of evidence of increasing restrictions on access to basic research assets in
areas such as scientic publishing; access to research samples and access
to databases.
As illustrated in SectionI.1 the CBD requires the states to “promote and
encourage research which contributes to the conservation and sustainable use
of biological diversity.” However, within the implementation of the CBD, grow-
ing protectionism by developing countries and issues related to intellectual
81 UNCLOS Article 244.2.
82 International Undertaking Article 5; International Treaty on Plant Genetic Resources
Article 12.3.
83 “Open sesame – When research is funded by the taxpayer or by charities, the results
should be available to all without charge,” The Economist (14 April 2012).
84 Sikina Jinnah and Stephan Jungcurt, “Could Access Requirements Stie Your Research?”
Science 323 (2009): 464–465.
85 Jerome Reichman and Ruth L. Okediji, Empowering Digitally Integrated Scientic
Research: The Pivotal Role of Copyright Law’s Limitations and Exceptions, 2009.
0002480442.INDD 24 3/25/2015 7:04:11 PM
300854
property rights in developed countries impacted the world of scientic
research and its access to resources for research purposes. At the same time
many parties were concerned that special treatment for research could create
loopholes in the system of ABS compliance to the detriment of countries pro-
viding genetic resources. Due to these emerging constraints the scientic
community pushed for a facilitated access for research purposes within the
negotiation of the Nagoya Protocol, but the colliding interests at stake gener-
ated a compromising article far from been clear.
The rationale of Article 8a of the Nagoya Protocol is to create legislative
conditions to promote and encourage research which contributes to conser-
vation and sustainable use of biological diversity i.e., to the rst and second
objective of the CBD. To this end, Article 8a of the Nagoya Protocol singles out
the adoption of simplied measures to access genetic resources for non-
commercial purposes as a tool to promote and encourage this research. Other
tools are possible as well, but legislation in provider countries, if adopted,
“shall” provide for simplied measures to access genetic resources for non-
commercial research that contribute to conservation and sustainable use of
biological diversity. Moreover, when such simplied procedure is adopted in
drafting national ABS legislation, it needs to take into account and dene the
issue of “change of intent.” Nevertheless, some crucial concepts in this provi-
sion still need to be claried through practice or further legislative develop-
ment: where does the limit between commercial and non-commercial
research lay? How to demonstrate that research is aimed at the conservation
and sustainable development of biodiversity? And how to identify a change
of intent?
The main contribution, in this context, of the Nagoya Protocol’s provision
on simplied procedure to access materials for non-commercial purposes is
that it ofers new opportunities by explicitly including provisions that address
86 Buck and Hamilton, “The Nagoya Protocol on Access to Genetic Resources and the Fair
and Equitable Sharing of Benets Arising from their Utilisation to the Convention on
Biological Diversity,” 59; Evanson C. Kamau, Bevis Fedder and Gerd Winter, “The Nagoya
Protocol on Access to Genetic Resources and Benet Sharing: What is New and what are
the Implications for Provider and User Countries and the Scientic Community?” Law,
Environment and Development Journal 6 (2010): 256.
87 The precise manner in which these provisions of the Nagoya Protocol will have an impact
on global research collaborations with basic knowledge assets for scientic research is
still a question of intense debate: Tom Dedeurwaerdere et al., “Governing Global Scientic
Research Commons under the Nagoya Protocol,” in The Nagoya Protocol in Perspective:
Implications for International Law and Implementation Challenges, eds. Elisa Morgera,
Matthias Buck and Elsa Tsioumani (Leiden/Boston: Brill/Martinus Nijhof, 2012).
0002480442.INDD 25 3/25/2015 7:04:11 PM
.
300854
the global organization of scientic collaboration at the non-commercial
stages of the research cycle.
The EU ABS Regulation recalls the Nagoya Protocol’s obligation to promote
and encourage research related to biological diversity, in particular research
with non-commercial intent. It will be interesting to see what innovative solu-
tions are proposed by the diferent national legislations implementing the
Nagoya Protocol and the EU ABS Regulation.
III Overview of the Book
The law-making on genetic resources culminated with the adoption of the
Nagoya Protocol to the Convention on Biological Diversity. In order to evaluate
if the Protocol ofers an adequate balance between the three motives that
characterized the law making on genetic resources – the right to development
of the developing countries, the global environmental concerns and the need
of the research community to have smooth and rapid access to biological
materials – it is necessary to gather the most up to date knowledge on the on-
going implementation eforts of the Nagoya Protocol in Europe. The aim of this
book is to comparatively analyse the heterogeneous legal and institutional
state of the art of access and benet-sharing instruments in Europe, and to
identify cross-cutting issues for the forthcoming implementation of the Nagoya
Protocol in the EU, within the framework of the EU Regulation on Access and
Benet-sharing.
The focus of this book is a comparative analysis of the heterogeneous legal
and institutional state of the art of access and benet-sharing instruments in
Europe, in light of the forthcoming implementation of the Nagoya Protocol
within the EU.
Through its recently adopted EU Regulation on Access and Benet- sharing,
aiming at implementing the Nagoya Protocol in the European Union, the
European Commission establishes an EU-harmonised approach on ABS, creating
88 Jerome H. Reichman, Tom Dedeurwaerdere and Paul Uhlir, Global Intellectual Property
Strategies for the Microbial Research Commons (Cambridge: Cambridge University Press,
forthcoming).
89 Regulation (EU) No 511/2014 of the European Parliament and of the Council of 16 April
2014 on compliance measures for users from the Nagoya Protocol on Access to Genetic
Resources and the Fair and Equitable Sharing of Benets Arising from their Utilization in
the Union. Ocial Journal of the European Union L 150/59, 20.05.2014.
0002480442.INDD 26 3/25/2015 7:04:11 PM
300854
a level playing eld for European users. According to the Regulation, this har-
monized approach only entails minimum features which are to be comple-
mented with existing ABS systems and best practices left to the choice of users
of genetic resources. However, current instruments strongly difer in terms of
depth, scope and efectiveness as well as across diferent types of users.
Furthermore, it is likely that the utilization of genetic material is already
(directly or indirectly) regulated by private and public law provisions–if not by
specic ABS laws–which will be impacted by a harmonization at EU level. This
is further complexied by the plurality of political structures and the division
of competences within member states, as well as by the diferent utilization
proles of member states (user, provider or both).
The implementation of the EU Regulation on ABS is ofering a unique
opportunity for the reassessment of the national legislative framework in
European and non-EU countries, and this collective volume aims to shed light
on this heterogeneity from an academic perspective.
The rst part of the book, “Access and Benet-sharing Regimes in Europe,”
provides detailed case-studies of ABS frameworks in selected European coun-
tries (including non-EU countries, like Norway and Turkey). Drafted by national
ABS experts, these country case-studies were conducted on the basis of the
following common research questions:
() Legal status of genetic resources and traditional knowledge: Under cur-
rently applicable law, what is the legal status of genetic resources and
associated traditional knowledge in your country?
() Access to domestic genetic resources and traditional knowledge: Is access to
genetic resources and associated traditional knowledge regulated in your
country? How?
() Benet-sharing mechanisms: Which benet-sharing obligations can be
found in currently applicable law in your country?
() Compliance mechanisms: Can PIC and MAT currently be controlled/
enforced in your country on the basis of specic legislation and/or gen-
eral private international law principles?
() Distribution of competences: How are ABS-related competences politi-
cally and administratively distributed in your country?
These chapters shows that the economic, historical and social developments
of each country, together with its geographical and environmental conditions,
have deeply inuenced the choices these countries have been making and are
making in balancing the conservation of biodiversity, their eforts to acquire a
better economic development and the support they are willing to give to
0002480442.INDD 27 3/25/2015 7:04:11 PM
.
300854
research in the eld of biodiversity and to its necessity to have a smooth and
easy access to natural resources.
The second part of the book, “Implementing the Nagoya Protocol in the
European Union,” explores several cross-cutting issues related to the imple-
mentation of the Nagoya Protocol in the EU.
Chapter 11 by Philippe Karpe, Alexis Tiouka, Ivan Boev, Armelle Guignier
and Florencine Edouard underlines the importance of protecting traditional
knowledge of the Amerindians of French Guyana and the possibility to imple-
ment this protection through the use of indigenous customary law and their
existing autonomy. It however stresses the limitation of this protection. The
contribution looks into the opportunity given by the implementation of the
EU Regulation on compliance measures for users from the Nagoya Protocol to
improve efective protection of traditional knowledge.
Chapter 12 by María Julia Oliva introduces the development of private
standards, as particular kinds of best practice or voluntary norms, and their
benets towards compliance with ABS requirements. These requirements
are developed through multi-stakeholder consultation. In meeting the chal-
lenge of monitoring and evaluating utilization of genetic resources for com-
pliance with ABS requirements, private standards bring to bear relevant
traceability systems, reporting requirements and independent audits. They
are likely to be helpful in implementing the due diligence principle of the EU
ABS Regulation.
Chapter 13 by Christine Godt argues that the EU approach camouages a
simplistic understanding of how the uses of genetic resources are regulated in
detail. The approach ignores the administrative set-up of various pre-existing
procedures, which ne-tune in many ways, the quality control of research and
production. It wilfully downplays the diculties of information ow, and gives
broad leeway to circumvention. Thus, it shows that the EU ABS Regulation
focusing on user measures is not ambitious enough to complement existing
and future provider measures.
Chapter 14 by Lorenzo Maggioni, Isabel López Noriega, Isabel Lapeña,
Vojtech Holubec and Johannes Engels presents and analyses current and poten-
tial diculties for collecting plant germplasm in situ in Europe. These dicul-
ties are the result of the combination of international rules on access and
benet-sharing with pre-existing national laws and administrative procedures
that both add complexity and inuence the way international conventions are
implemented. This contribution ofers some ideas about how the objective of
providing facilitated access to plant genetic resources, which is embraced by
the CBD, the Treaty and the Nagoya Protocol, can be efectively achieved in
European countries.
0002480442.INDD 28 3/25/2015 7:04:12 PM
300854
The conclusion to the book by Brendan Coolsaet articulates a comparative
analysis of the ABS regimes in Europe, based on the country case-studies, and
outlines a comprehensive evaluation of the challenges related to the imple-
mentation of the Nagoya Protocol in the EU, taking into account the provisions
of the EU Regulation on ABS and the input provided by the chapters of the
second part of this book.
90 See contribution by Coolsaet to this volume (Conclusion).
0002480442.INDD 29 3/25/2015 7:04:12 PM
