ABS: definition and constituent elements

70 Busch, A. F., PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS IN LATIN AMERICA:ALEGAL AND ANTHROPOLOGICAL STUDY (Springer-Verlag Berlin Heidelberg, 2015),at 148.

71 Tobin, B., supra note 35.

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The injustice arising in the context of TK exploitation stirred up tension between TK holders and bio-prospectors, or on the global scale, between the Global South – which hosts the vast majority of biological resources and TK and the Global North – which greedily reaps benefits from the exploitation of those resources.⁷² As a response, the concept and practice of access and benefit sharing (ABS) emerged with a view to addressing these concerns at the international and national levels.⁷³ The CBD is considered a pioneer in introducing the concept of ABS in international legal instruments and promoting its application in national frameworks.⁷⁴ The explanation below provides a brief description of the ABS mechanism based on principles and provisions provided in the CBD and the Nagoya Protocol – a binding instrument under its umbrella.

72 Bavikatte, K. & Robinson, D. F., Towards A People’s History of the Law: Biocultural Jurisprudence and the Nagoya Protocol on Access and Benefit Sharing, 7(1) LAW,ENVIRONMENT AND DEVELOPMENT

JOURNAL.35,at 38 (2011).

73 It should be borne in mind that the CBD is just one among international instruments dealing with ABS. The International Treaty on Plant Genetic Resources for Food and Agriculture (FAO’s treaty of 2001) is an example. The Treaty discusses ABS of plant GRs with the link to the farmer’s rights on the basis of recognition on “the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centres of origin and crop diversity, have made and will continue to make for the conservation and development of plant GRs which constitute the basis of food and agriculture production throughout the world” (Art. 9 of the Treaty). Another example, the Universal Declaration of Human Rights (1948), refers to the notion of benefit sharing more extensively by stating that “[e]veryone has the right . . . to share in scientific advancement and its benefits.” Those instruments, however, deal with ABS of GRs and TKaGRs either in limited scope (ABS under the FAO’s treaty only covers the 35 crops and 39 forages contained in Annex 1 of the Treaty and serves “only for the purpose of utilization and conservation for research, breeding and training for food and agriculture, provided that such purpose does not include chemical, pharmaceutical and/or other non-food/feed industrial uses” (Art. 12.3(a)) or in an anstract manner (the Universal Declaration of Human Rights refers to the distributive benefits broadly for the whole society and the human-kind).

74 Nijar, G. S., Incorporating Traditional Knowledge in an International Regime on Access to genetic Resources and Benefit Sharing: Problems and Prospects, 21(2), THE EUROPEAN JOURNAL OF

INTERNATIONAL LAW.457(2010), at 459.

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According to the Convention on Biological Diversity, ABS is defined as the fair and equitable sharing of the benefits arising from the use of genetic resources and associated traditional knowledge. It refers to the way in which genetic resources and/ or associated traditional knowledge may be accessed, and how the benefits resulting out of their use are shared between the people or countries using the resources (users) and the people or countries that provide them (providers).⁷⁵ In an academic view, ABS is “the fusion of two concepts which are politically and (to a very limited extent) legally or contractually linked.

In general, ‘access’ is perceived to be primarily the responsibility of the source country, source community or individual, while ‘benefit-sharing’ is founded on the user (private company or entity) to be made legally effective by the country with jurisdiction over that user”.⁷⁶ Generally, access to GRs/TKaGRs is based on Prior Informed Consent (PIC) that providers grant to users, which serves as the starting point for negotiations between both parties to establish mutually agreed terms (MAT) that ensure benefits resulting from the utilization of such resources to be shared fairly and equitably. The diagram below depicts a detailed ABS process.

75 The Secretariat of the Convention on Biological Diversity, Introduction to Access and Benefit Sharing, https://www.cbd.int/abs/information-kit-en (Last visited on August 10, 2019).

76 Tvedt. M. W, Young. T, Beyond Access: Exploring Implementation of the Fair and Equitable Sharing Commitment in the CBD, IUCN Environmental Policy and Law Paper No. 67/2 (2007), at 2.

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Diagram 2.1: The ABS mechanism

Source: The Secretariat of the Convention on Biological Diversity, ABS Information Kit, www.cbd.int/abs/awareness-raising/ (Last visited on December 20, 2019)

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As indicated in the diagram, prior informed consent (PIC) and mutually agreed terms (MAT) are required before the access to GRs/TKaGRs and benefit sharing scheme must be carried out between the users and the providers. Users, as specified by the CBD Secretariat, are a diverse group, including “botanical gardens, industry researchers such as pharmaceutical, agriculture and cosmetic industries, collectors and research institutes with different purposes from basic research to development of new products”.⁷⁷ Different from the approach to the concept of “users”, the identification of providers lies in frameworks where ownership over GRs/ TKaGRs is defined. It substantially depends on the domestic laws of each contracting Party, emanating from the principle of sovereign rights over natural resources under the Parties’ jurisdictions as enshrined in the CBD.⁷⁸ In practice, providers of GRs may be the State (for countries adopting entire-people ownership over GRs, like Vietnam) or individuals (for countries recognizing private ownership, inter alia, over GRs, like Australia). Whereas, providers of TKaGRs are primarily indigenous peoples and local commnities, except for the situation where the State acts as the representative for TKaGRs holders if those holders cannot be identified (as the case with Brazilian and French legislations).⁷⁹

Prior informed consent (PIC) is the permission given by the competent national authority of a provider country (or holders of TKaGRs) to a user prior to accessing GRs/TKaGRs. The requirements for PIC are legal certainty, clarity and transparency of access and benefit-sharing in domestic legislation.⁸⁰ Therefore, providers should be vested with a right to receive all access - related information, including the identities of the users, the objectives of access and utilization, potential risks arising from such access and

77 The Secretariat of the Convention on Biological Diversity, Introduction to Access and Benefit Sharing, supra note 75, at 4.

78 The Preamble of the CBD affirms: “the conservation of biological diversity is a common concern of humankind”, but reaffirms: “States have sovereign rights over their own biological resources”.

79 This point is subject to further elaboration in Chapter 3.

80 Article 6(2) of the Nagoya Protocol.

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utilization, based on which decision to or not to allow access will be made by the providers.

Access may serve diverse purposes of users, including commercial (commercialization of TKaGRs-derived products) or non-commercial (purely for research) purposes. The Nagoya Protocol requires its contracting Parties to specially consider the differentiation in regulating access of those two types of purposes.⁸¹ Accordingly, contingent upon domestic laws, each type of access purposes may subject to different requirements and procedures.

PIC is followed by mutually agreed terms (MAT) - an agreement (under the type of contract) reached between the providers and users of GRs/ TKaGRs on the conditions of access and use of the resources, and the benefits to be shared between the both parties. The requirements for MAT are: “clear rules and procedures for MAT shall be set out in writing, with a dispute settlement clause; terms on benefit-sharing, including in relation to intellectual property rights; terms on subsequent third-party use, if any; and terms on changes of intent, where applicable”.⁸² The benefits to be shared can be monetary, such as up-front payments, milestone payments, payments of royalties, special fees to be paid to trust funds supporting conservation and sustainable use of biodiversity, research funding, joint ownership of relevant intellectual property rights. Non-monetary benefits are also anticipated, including, inter alia, sharing of research and development results, participation in product development, strengthen capacities for technological transfer, contributions to the local economy. The Nagoya Protocol provides a list of types of monetary and non-monetary benefits⁸³ but does not restrict the implementation of the contracting Parties within the given scope.

Although the ABS scheme involves two prime actors – the users and the providers, there may be intervention from public authorities and the involvement of non-governmental organizations (NGOs) to enhance transparency and ensure equity in the context of imbalance in bargaining power between the providers and the users. The presence of these

81 Art. 8 of the Nagoya Protocol

82 Art. 2(2,f) of the Nagoya Protocol.

83 The Annex of the Nagoya Protocol

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actors in the ABS processes is determined by domestic frameworks or on the case by case basis (further analyzed in Chapter 3).

Primarily, ABS is stipulated in Article 15 of the CBD. ⁸⁴ In regard of TKaGRs, ABS is interpreted in combination with Article 8(j), which was said to be ambiguous to deal with TKaGRs of indigenous peoples and local communities.⁸⁵ This has been more or less addressed by some protocols under the CBD’s umbrella, inluding the Nagoya Protocol as a binding instruments, as well as recommendations through Conferences of the Parties (COP) and Meetings of the Parties (MOP) of the CBD (subject to further clarification in the Part 2.3.4).

2.3.2. The nature of the ABS scheme with regard to TKaGRs