BIODIVERSITY CONSERVATION AND
ABS
BEST PRACTICES AROUND LIKE-MINDED MEGADIVERSE
COUNTRIES
Cato De Roeck
01507996
Supervisor: Prof. Dr. An Cliquet
Commissioner: Aysegül Sirakaya
A dissertation submitted to Ghent University in partial fulfilment of the requirements for the degree of Master of Laws
2 The undersigned declares that the contents of this master's thesis may be consulted and/or reproduced for personal use. The use of this master's thesis is subject to the provisions of copyright law and referencing is
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ACKNOWLEDGEMENTS
Five years ago, I enrolled myself at Ghent University to study at its Law Faculty. At that time, it did not occur to me that it was so much more than just an education. The professors surely taught me how to think as a legal practitioner (and especially how to be critical like one). However, the learning experience did not end there. During my time spent in Ghent, I developed relationships with peers and people that I can now call friends. Therefore, I would like to express great gratitude towards Ghent University for creating the challenging environment with compassionate peers and offering opportunities that made me the person that I am today.
After five years of legal studies, this dissertation is the icing on the cake. I would like to thank professor An Cliquet and Aysegül Sirakaya for supporting me with their knowledge and providing critical comments on my draft work. I appreciate deeply all the time and energy they have spent on guiding me through the wonderful world of ABS.
Lastly, I would like to thank my parents Carla and Danny, my brother Vincent, my boyfriend Jan and my best friends for putting up with me during the time I was writing this dissertation. It would have not been possible without their love and optimism. I am forever grateful for the opportunities and support I have been granted.
Cato De Roeck 22 May 2020
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ABSTRACT (ENGLISH AND DUTCH)
Before the Convention of Biological Diversity (CBD) , there was an international discussion on the application of the principle of ‘common heritage of mankind’ on genetic resources. In 1992, the CBD ended the discussion by establishing the sovereign rights of provider countries over their genetic resources. In this context, access and benefit sharing (ABS) was introduced. Moreover, ABS should contribute to biodiversity conservation and sustainable use of its components. Improving efficiency, introducing innovative models for benefit sharing and implementing an effective combination of rights and incentives have been proposed to improve the current ABS systems. In this dissertation, the ABS frameworks of Brazil, India and South Africa are examined on provisions focused on biodiversity conservation. Within their national ABS frameworks, several provisions on benefit sharing, financial mechanisms, biodiversity monitoring, conservation and sustainability, incentives and biotrade are identified which can be connected to biodiversity conservation. Furthermore, an analysis of the Natura case in Brazil, Kani case in India and Khoisan case in South Africa confirms the importance of involving indigenous communities and biotrade.
Voor het Biodiversiteitsverdrag (Convention on Biological Diversity) was er discussie op internationaal niveau of genetische rijkdommen gemeenschappelijk erfgoed van de mensheid zijn. Bij de totstandkoming van Biodiversiteitsverdrag verkregen de ‘provider’ landen soevereiniteit over de genetische rijkdommen die zich in hun grondgebied bevonden. In deze context werd ‘access and benefit sharing’ (ABS) geïntroduceerd. ABS heeft als onderliggend doel de om de biodiversiteit te behouden en duurzaam om te gaan met de biologische componenten. Om het reeds bestaande ABS mechanismen te verbeteren, werd er reeds voorgesteld om in te zetten op de efficiëntie, het introduceren van innovatieve modellen en het combineren van rechten en drijfveren. In deze thesis zullen de ABS wetgevingen van Brazilië, India en Zuid Afrika geanalyseerd worden met een focus op het behoud van biodiversiteit. In de voorgenoemde wetgevingen worden de bepalingen van ‘benefit sharing’, financiële mechanismen, monitoring van biodiversiteit, natuurbehoud en duurzaamheid, drijfveren en biotrade geïdentificeerd om ze daarna te linken aan het behoud van biodiversiteit. Daarnaast zullen de casussen van Natura in Brazilië, de Kanis in India en de Khoisans in Zuid-Afrika geanalyseerd worden. Uit de analyse blijkt dat het van belang is om van in het begin de inheemse bevolking te betrekken in de onderhandelingen. Daarnaast kan biotrade ook helpen meer opportuniteiten te creëren.
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TABLE OF CONTENTS
ACKNOWLEDGEMENTS ... 3
ABSTRACT (ENGLISH AND DUTCH) ... 4
TABLE OF CONTENTS ... 5
LIST OF ABBREVIATIONS ... 9
INTRODUCTION ... 10
SCOPE OF THE RESEARCH
I. RESEARCH QUESTIONS ... 11
II. RELEVANCE OF THE RESEARCH ... 12
III. METHODOLOGY ... 12
PART ONE
I. THE WINDING PATH TO EQUITY ... 16
I.1 From ‘common heritage’ to common concern ... 17
I.2 Further navigation by the Nagoya Protocol ... 21
II. BIODIVERSITY CONSERVATION BY ABS ... 23
II.1 Principles of ABS practicality ... 24
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PART TWO
I. CONSERVING BIODIVERSITY THROUGH LEGISLATION ... 28
II. BRAZIL ... 30
II.1 Brazilian ABS framework ... 32
II.1.1 General information ... 33
II.1.2 Benefit Sharing ... 35
II.1.2.1 Scope ... 35
II.1.2.2 Added value ... 37
II.1.2.3 Modalities ... 38
II.1.2.4 Financial mechanisms ... 41
II.1.2.5 Biodiversity monitoring ... 42
II.1.2.6 Sustainable use or in situ and ex situ conservation ... 44
II.1.2.7 Incentives ... 46
II.1.2.8 Biotrade ... 47
II.1.3 Conclusion ... 48
II.1.4 Future challenges ... 49
II.2 Case study: Natura Cosméticos and the Iratapuru community ... 50
III. INDIA ... 53
III.1 Indian ABS Framework ... 54
III.1.1 General information ... 55
III.1.2 Benefit Sharing ... 56
III.1.2.1 Scope ... 56
III.1.2.2 Modalities ... 58
III.1.2.3 Financial mechanisms ... 62
III.1.2.4 Biodiversity monitoring ... 63
III.1.2.5 Sustainable use or in situ and ex situ conservation ... 64
III.1.2.6 Incentives ... 65
III.1.2.7 Biotrade ... 66
III.1.3 Conclusion ... 66
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III.2 Case study: Kani people and Arogyapacha ... 70
IV. SOUTH AFRICA ... 73
IV.1 South African ABS Framework ... 74
IV.1.1 General information ... 75
IV.1.2 Benefit Sharing ... 77
IV.1.2.1 Scope ... 77
IV.1.2.2 Modalities ... 78
IV.1.2.3 Financial mechanisms ... 80
IV.1.2.4 Biodiversity monitoring ... 81
IV.1.2.5 Sustainable use or in situ and ex situ conservation ... 82
IV.1.2.6 Incentives ... 85
IV.1.2.7 Biotrade ... 86
IV.1.3 Conclusion ... 87
IV.1.4 Future challenges ... 88
IV.2 Case study: Khoisan people and rooibos ... 90
V. COMPARATIVE ANALYSIS ... 94
VI. CONCLUSION ... 98
BIBLIOGRAPHY
I. LEGISLATION AND LEGISLATIVE DOCUMENTS ... 99
I.1 International documents ... 99
I.1.1 Conventions, Protocols and guidelines ... 99
I.1.2 CBD and COP decisions ... 99
I.1.3 Reports ... 100
I.2 Brazil ... 100
I.2.1 National legislation ... 100
1.2.2 National Biodiversity Strategies and Action Plans, Resolutions, Technical Guidances and Ministerial Orders ... 101
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1.3 India ... 103
I.3.1 National legislation ... 103
1.3.2 State legislation ... 104
1.3.3 National Biodiversity Strategies and Action and Implementation Plans ... 105
1.3.4 Reports ... 105
I.4 South Africa ... 106
I.4.1 National legislation ... 106
1.4.2 National Biodiversity Strategies and Action and Plans ... 106
1.4.3 Reports ... 106
II. LITERATURE ... 107
II.1 Books ... 107
II.2 Journals ... 110
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LIST OF ABBREVIATIONS
ABS Access and benefit sharing
ABSCH ABS Clearing House
AVP Aryavaidya Pharmacy Coimbatore Ltd. (India)
BIODIVA Biodiversity and Genetic Resources Programme (Brazil) BMC Biodiversity Management Committee (India)
BSA Benefit Sharing Agreement
CBD Convention of Biological Diversity
CGEN Genetic Heritage Management Council (Brazil) FNRB National Fund for the Distribution of Benefits (Brazil)
ILC Indigenous and local community
JFM Joint Forest Management (India) LMMC Like-Minded Megadiverse Countries
NBSAP National Biodiversity Strategies and Action Plans
MAT Mutually Agreed Terms
NBA National Biodiversity Authority (India)
PIC Prior Informed Consent
PBR People’s Biodiversity Register (PBR)
PNRB National Programme for Benefit Sharing (Brazil) SBB State Biodiversity Board (India)
SisGen National System for Managing Genetic Heritage and Associated Traditional Knowledge (Brazil)
TBGRI Tropical Botanic Garden and Research Institute (India)
UEBT Union for Ethical BioTrade
UNCLOS United Nations Conference on the Law of the Sea UNEP United Nations Environment Programme
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INTRODUCTION
1. Biological diversity can be of interest to many people. Some people surround themselves with nature to unwind, some artist use it as an inspiration, and some are interested in the genetic information and potential uses it contains. This particular part, the ‘genetic resources’, is the centre of the rapid developing and evolving field of law of access and benefit sharing (ABS) that regulates its use. ABS aims to unlock these resources and discover their potential, while conserving biodiversity and promoting sustainable use of its components. National governments carry the duty to create their own ABS mechanisms based on international documents, taking into account their own circumstances and priorities. Due to an ongoing conflict between the North and the South, the outcomes of the national framework can be divergent. In this dissertation, ABS frameworks of three countries and the context wherein they were established are examined and compared. The aim is to find mechanisms within the frameworks that contribute to the biodiversity conservation.
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SCOPE OF THE RESEARCH
I. Research questions
2. During the negotiations of the Convention of Biological Diversity (CBD)1, access and benefit-sharing
(ABS) was a controversial topic due to the North-South conflict, the utilisation of traditional knowledge, the scope of genetic resources and intellectual property rights.2 When the international community agreed to
introduce a new international instrument, the developing countries rejected the idea to solely focus on biodiversity conservation and sustainable use. In the end, ABS was introduced as the third objective of the CBD. It was expected to generate economic benefits for biodiversity conservation for the provider countries. Hence, the scope of this research is the biodiversity conservation as a result of the national implementation of ABS. Questions about the scope of genetic resources, the obstacles with intellectual property and the post-2020 Biodiversity Framework remain unanswered in this dissertation.
3. The light is shed on three Like-Minded Megadiverse Countries and their national legal framework on ABS. To connect their framework with biodiversity conservation, this research is intended to point out the different types of mechanisms these Like-Minded Megadiverse Countries have in terms of conserving their biodiversity. In order to form a response, several sub-questions need to be answered first:
1. In what context was ABS introduced?
2. How can (regulation on) ABS promote the conservation of biodiversity?
3. What is the importance of the ABS framework in the selected Like-Minded Megadiverse Countries? 4. Which mechanisms of biodiversity conservation are implemented in their national ABS framework? 5. How does these mechanisms3 function in practice on specific genetic resources in those countries?
6. Are there similarities or differences between the mechanisms (or lack thereof) in the regulation of the selected countries?
1 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79
(CBD) <https://www.cbd.int/doc/legal/cbd-en.pdf>
2 Thomas Greiber and others, An Explanatory Guide to the Nagoya Protocol on Access and Benefit-Sharing (IUCN) 3. 3 Interlinked with biotrade.
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II. Relevance of the research
4. ABS is based on transactions between providers and users, depending on the existing national legislation. The national implementations of the CBD and the Nagoya Protocol4 contribute to the
development of ABS as a field of law. Governments take into account their national circumstances, administrative structures and priorities.5 Hence, countries choose different approaches on the
implementation. A variety of ABS frameworks exist internationally, which can be confusing for both providers and users. Additionally, it is expected that ABS generates economic benefits for biodiversity conservation. However, evidence of this expectation is meagre.6 In order to provide some legal clarity, this
research sets out the national ABS legislation on biodiversity conservation of three Like-Minded Megadiverse Countries. Further, the possibilities of ABS on biodiversity conservation are explored.
III. Methodology
5. The dissertation consists of two parts. In both parts, the research is based on legal texts, documents and its interpretation. Therefore, the followed approach is hermeneutic.7 The first part constitutes of a general
overview on ABS. It explicates the North-South conflict and the outcome of the CBD and the Nagoya Protocol. The aim of this part is to answer sub-questions one (on the context of the introduction of ABS) and two (on the conservation of biodiversity by ABS). The research is based on an analysis of CBD documents, Nagoya Protocol documents, and a literature review. The objective of this part is to gain a better insight into the ABS mechanisms, which are examined in the second part. A better understanding of the system helps to comprehend the national implementation on ABS of the selected countries.
4 Nagoya Protocol and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on
Biological Diversity (adopted 29 October 2010, entered into force 12 October 2014) (Nagoya Protocol) <https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf>
5 ‘Convention on Biological Diversity and ABS: National Implementation’ (Secretariat of the Convention on Biological
Diversity 2011) 3 <https://www.cbd.int/abs/infokit/revised/print/factsheet-national-implementation-en.pdf> accessed 7 January 2020.
6 Sebastian Oberthür and Kristin Rosendal, ‘Conclusions: An Assessment of Global Governance of Genetic Resources
after the Nagoya Protocol’, Global Governance of Genetic Resources: Access and Benefit Sharing after the Nagoya
Protocol (Routledge 2014) 244.
7 Mark Van Hoecke, ‘Legal Doctrine: Which Method(s) for What Kind of Discipline?’, Methodologies of Legal
13 6. The second part consists of a comparative analysis of three countries: Brazil, India and South Africa. Answering sub-question three, the choice of these countries is elaborated based on their richness in biodiversity, the difference in their signatory status under the Nagoya Protocol and the maturity of their ABS framework. Their analysis is based on three stages: knowing, understanding and comparing.8 The first stage
of knowing consists of a legal review of primary sources consisting of national legislation, regulations, policies, guidelines, resolutions, ministerial orders, National Biodiversity Strategies and Action Plans (NBSAP) and national reports. The focus of this stage is to find mechanisms in the legal framework contributing to biodiversity conservation in order to answer sub-question four. The analysis is carried out through the biodiversity conservation lens. Therefore, it is focused on the regulatory mechanisms on benefit-sharing as these “should be directed in such a way to promote conservation and sustainable use of biological diversity”9. It is often seen as a prerequisite for the achievement of the other two CBD objectives: biodiversity
conservation and sustainable use of its components.10 In this dissertation, the following measures are sought
in the countries’ legislation: financial mechanisms, provisions on biodiversity monitoring, provisions on in-situ and ex-in-situ conservation and economic or social incentives.
The aim of this part is to identify common mechanisms in the countries’ ABS frameworks. The mechanisms are examined based on the following criteria (when applicable): definition11, material scope12, temporal
scope13, activity scope14, geographical scope15, objective16, requirements17, involved parties18, involvement of
ILCs19, standardisation20, monitoring21 and compliance22.
8 Léontin-Jean Constantinesco, Traité de droit comparé: La méthode comparative (LGDJ 1974).
9 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their
Utilization (adopted 7 April 2002) <http://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf>
10 Kristin Rosendal, ‘Balancing Access and Benefit Sharing and Legal Protection of Innovations From Bioprospecting:
Impacts on Conservation of Biodiversity’ (2006) 15 The Journal of Environment & Development 428, 432.
11 Used terms and concepts can be defined in other parts of the regulation.
12 Types of regulated genetic resources: in situ, ex situ and/or digital sequence information (DSI).
13 Triggers to activate the mechanism: access to sampling, utilization, commercialization or access to a previously
utilized genetic resource for new utilization.
14 Types of activities: research, development, research and development and/or BioTrade. 15 Based on the competences within national laws.
16 Description of the aim of the mechanisms.
17 Possible additional requirements next to the material, temporal, activity and geopgraphic scope. 18 The governmental bodies, funds and/or organisations.
19 Requirements to inform and negotiate with the associated ILCs. 20 Standardised or case-by-case process.
21 Types of monitoring: inspections, evaluations, investigations, data collections, reviews and reporting. 22 Types of compliance: administrative fines and/or criminal sanctions (and their interconnectedness).
14 7. In the second stage of understanding, a genetic resource specific to the reviewed country is examined in order to comprehend how ABS performs in Brazil, India and South Africa. The analysis should answer sub-question five. Each case comprises a genetic resource with associated traditional knowledge of ILCs. In such circumstances, the importance of biotrade becomes clear. The users are interested in not only sampling, but additionally cultivating and harvesting the resources. These activities affect the surrounding environment. biotrade promotes to conduct these activities under the criteria of environmental, social and economic sustainability. Each case is evaluated through the lens of biotrade activities with regard to other mechanisms influencing biodiversity conservation.
In Brazil, both castanha as breu branco are cultivated and exported by the communities in Iratapuru. The Brazilian company Natura Cosmetics was interested in incorporating these natural ingredients from the Amazon rainforest for their new cosmetic line. They claim to ethically source the ingredients and involve the indigenous and local communities (ILCs) directly. Even though the partnership between the nut gatherers and Natura has been established before any national ABS regulations, benefit sharing agreements were enacted. Due to the cultivation in the Amazon itself, there is a direct link to biodiversity conservation of the Iratapuru Reserve and additionally the sustainable development of the ILCs.
In India, two scientists noticed their Kani guides eating the Arogyapacha fruit in order to remain energetic and agile during their hikes. Further research led to the creation of a new medicine, Jeevani. Likewise as the Iratapuru case in Brazil, the discovery was before any Indian ABS regulation. However, benefits were still shared even though the process of negotiating was not without any controversy. One of the issues was biodiversity conservation of the Kerala Forest. It is interesting to examine how biodiversity conservation can be an argument to block an ABS agreement.
In South Africa, the seemingly endless debate around rooibos is explored. After nine years of negotiating, a Benefit Sharing Agreement was signed on 1 November 2019. The signatures of the Khoi and San on the one hand and the entire South African rooibos industry on the other hand enacts as the first benefit sharing agreement spanning an entire industry of a well-established product on the market. The agreement marks as an important achievement for indigenous people for the use of their traditional knowledge, perhaps setting a precedent for other ILCs enduring similar experiences.
8. The third stage of comparing consists of establishing the similitude and differences between the identified measures and mechanisms in the three countries, answering sub-question six. The followed approach is exogenous by comparing how these countries contribute to biodiversity conservation through their national framework.23 The examined criteria in the first stage are utilised in order to carry out this
15 comparison. The invariant element of comparison is biodiversity conservation (or lack of) by law, comparing the outlined and examined conservation measures in each country.24 The results of this comparison are used
to answer the main research question identifying the types of mechanisms these Like-Minded Megadiverse Countries have in terms of conserving their biodiversity.
24 Ralf Michaels, ‘The Functional Method of Comparative Law’, The Oxford Handbook of Comparative Law (Oxford
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PART I
I. The winding path to equity
9. The rapid developing and evolving field of law is established around the use of a particular part of biological diversity, the so called ‘genetic resources’. Biological diversity is “an attribute of an area and specifically refers to the variety within and among living organisms”.25 One way to measure biological
diversity is by its genetic diversity, defined as the heritable variation between populations of organisms.26
Genetics within biological resources can be valuable for human purposes due to their use for industrial and/or academic purposes. Over the past decades, possibilities and capacities for the utilisation and commercial exploitation of these resources have expanded. In order to meet the rapidly growing scientific and economic interest, a new system was required to unlock these resources and discover their potential. 27
10. From across the globe, voices expressed a demand for a fair and equitable mechanism. In the past, the term ‘genetic resources’ was not known as a legal concept. Hence, the legal consequences of ownership over these resources was debatable.28 However, there was a prominent asymmetry between Northern and
Southern countries.29 On the one hand, developing countries possessed most of the world’s biodiversity with
associated traditional knowledge. They owned the largest remaining areas containing an abundance of resources essential for humanity’s well-being. The burden of conservation was carried out by the same Southern countries. Few costs fell into the lap of developed countries in the North, even though it was in their benefit as well to conserve the biological diversity.30 On the other hand, developed countries dominated on
the aspect of (bio)technological development with the possibility to reap economic benefits from the genetic
25 Don C DeLong, ‘Defining Biodiversity’ (1996) 24 Wildlife Society Bulletin 738, 745.
26 Ian R Swingland, ‘Biodiversity, Definition Of’, Encyclopedia of Biodiversity (Elsevier 2001) 380
<https://linkinghub.elsevier.com/retrieve/pii/B0122268652000274> accessed 12 March 2020.
27 Sarah Laird and Rachel Wynberg, ‘Bioscience at a Crossroads: Implementing the Nagoya Protocol on Access and
Benefit Sharing in a Time of Scientific, Technological and Industry Change’ (Secretariat of the Convention on Biological Diversity 2011) 3 <https://www.cbd.int/abs/doc/protocol/factsheets/policy/policy-brief-01-en.pdf> accessed 10 November 2019.
28 Schei Peter and Morten W Tvedt, ‘“Genetic Resources” in the CBD: The Wording, the Past, the Present and the
Future’ 2.
29 Sebastian Oberthür and Kristin Rosendal, ‘Background and Analytical Framework’, Global Governance of Genetic
Resources (Routledge 2014) 4.
17 variability.31 As a result, there was a mismatch between the countries who borne the costs of conservation of
biodiversity and the countries that enjoyed their value.32 Scattered across the globe, these resources and its
associated traditional knowledge were often freely available in most parts of the world.33 This opened the
door to exploitation without sharing any of the benefits with the countries wherein these resources were situated. Based on these experiences, a demand for a fair and equitable mechanism was not unreasonable.
I.1 From ‘common heritage’ to common concern
11. Particular resources found on the moon, in the seabed and its subsoil earned a special status in international law. In order to protect them, the idea of the ‘common heritage of mankind’ was made explicit by the Agreement Governing Activities of States on the Moon and other Celestial Bodies (Moon Treaty)34
and the United Nations Conference on the Law of the Sea (UNCLOS)35. There was a global understanding
that resources found on the moon, the seabed and its subsoil should not become property of any state, organisation or individual. Research on and exploitation of these resources was narrowed to those benefitting the mankind as a whole. Therefore, these resources were protected by specific regulation.
12. Genetic resources did not enjoy a similar status or protection as the resources found on the moon, in the seabed and its subsoil. First, there was a lack of legal protection on biological or genetic resources. Genetic resources were not subjected to an explicit demand that all of humanity must benefit from their exploitation, unlike the aforementioned resources. Additionally, there was no international agreement applying the ‘common heritage of mankind’ principle onto these resources. As a result, genetic resources did not enjoy a similar protection as the resources on the moon, in the seabed and its subsoil. 36 Second, there was
a common practice of open access in developing countries. Mostly, the exploration of biological material for commercially valuable genetic and biochemical properties – so called bioprospecting37 – is considered to be
legal and can even be an incentive for developing countries to protect their biodiversity and traditional
31 It is important to note that there are newly industrialised countries in the South who have the (bio)technological
capacities.
32 ‘The Economics of Ecosystems & Biodiversity: An Interim Report.’ (European Communities 2008) 18. 33 Greiber and others (n 2) 5.
34 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (adopted 18 December 1979,
entered into force 11 July 1984) 1363 UNTS 3 (Moon Treaty) <http://www.unoosa.org/pdf/gares/ARES_34_68E.pdf>
35 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994)
1833 UNTS 3 (UNCLOS) <https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf>
36 Doris Schroeder, ‘Justice and Benefit Sharing’, Indigenous peoples, Consent and Benefit Sharing: Lessons from the
San Hoodia Case (Springer 2009) 14.
37 Rachel Wynberg and Sarah Laird, ‘Bioprospecting: Tracking the Policy Debate’ (2007) 49 Environment: Science and
18 knowledge.38 However, developing countries became aware of the engagement of developed countries in
‘biopiracy’. ‘Biopiracy’ is the appropriation of genetic resources and associated traditional knowledge without permission and without any share in the resulting commercial profits.39 Additionally, it encompasses
the ownership over products derived from these resources or knowledge.40 The legal consequences of this
ownership could lead to ILCs losing the rights to use the resources existing in their environment which are essential for their livelihoods.41 Hence, developing countries had an increasing dissatisfaction with the open
access to their genetic resources.
Due to the combination of the lack of legal protection and the common practice of open access, developed countries tried to justify their activities by applying a de facto principle of the ‘common heritage of mankind’.42 They hid behind the idea that genetic resources were expected to benefit the existing and future
generations.43 Therefore, a free and unconditional access was required in order to pursue environmental and
social welfare objectives relating to these resources.44 Probably this argument was rather used to avoid
sharing their profits.
13. The application of the principle of ‘common heritage of mankind’ on genetic resources was not feasible, which initiated the search for another mechanism. The principle would be appropriate if resources were actually accessed and used for the benefit of mankind without any inherent exploitation and without restrained access to the benefits of their use.45 This could be the case in the scenario where the earth would
have plentiful resources for a number of egalitarian and wealthy citizens, where resources could be accessed and used for medical progress for all the citizens.46 However, the international economic order is currently
marked by tacit social rules and distributive injustices such as food insecurity and lack of access to medical
38 Srividhya Ragavan, ‘New Paradigms For Protection Of Biodiversity’ (2008) 13 Journal of Intellectual Property
Rights, 515.
39 Cynthia M Ho, ‘Biopiracy and Beyond: A Consideration of Socio-Cultural Conflicts with Global Patent Policies’
(2006) 39 University of Michigan Journal of Law Reform 436.
40 ibid.
41 Vanessa Danley, ‘Biopiracy in the Brazilian Amazon: Learning from International and Comparative Law Successes
and Shortcomings to Help Promote Biodiversity Conservation in Brazil’ (2015) 7 Florida A&M University Law Review 291, 295.
42 Riccardo Pavoni and Dario Piselli, ‘Access to Genetic Resources and Benefit-Sharing’, Biodiversity and Nature
Protection Law (Edward Elgar Publishing Ltd 2017) 244.
43 Elisa Morgera, Elsa Tsioumani and Matthias Buck, Unraveling the Nagoya Protocol: A Commentary on the Nagoya
Protocol on Access and Benefit-Sharing to the Convention on Biological Diversity (Brill 2014) 6; Pavoni and Piselli (n
42) 246.
44 Morgera, Tsioumani and Buck (n 43) 6. 45 Schroeder (n 36) 23.
19 care.47 Instead, the application of the principle to genetic resources led to a more exploitative and unjust state
of affairs which made it more impractical.48 Developing countries and ILCs did not profit in the same way as
the developed countries through the utilisation and commercialization of genetic resources. Users in developed countries were able to yield tremendous profits without providing any significant returns to the provider developing countries.49
In this context, discussions on ABS acted as a dialogue on ethics and equity in research, ownership and control of genetic resources.50 The developing countries started demanding an equitable and effective
mechanism in order to reduce the established asymmetries among developed and developing countries.51
Additionally, they plead that the governance of biodiversity is not a matter of Southern countries only. They wanted to shift the focus on ‘common’ from the principle of ‘common heritage of mankind’ more to a common concern of global biodiversity.
14. The international community understood it was urgent to develop a new instrument to answer some key issues in the governance of global biodiversity. On the one hand, conservation and sustainable use of resources needed to be balanced in a time where humanity was rapidly outstripping its ability to live sustainable on earth.52 On the other hand, the concepts of ‘equity’ and ‘justice’ fostered the international
debate even more. As a result, the United Nations Environment Programme (UNEP) convened the Ad Hoc Working Group of Experts on Biological Diversity in 1988 to explore the necessity for an international convention addressing these issues. One year later, the Ad Hoc Working Group of Technical and Legal Experts began to prepare a legal instrument. It was agreed that equity was necessary to promote biodiversity conservation and sustainable use of its components.53 A parallel goal of reducing asymmetries among
developed and developing countries arose.54 Hence, the Convention on Biological Diversity55 (CBD) became
47 ibid 11. 48 ibid 15.
49 Morten Walløe Tvedt and Tomme Young, Beyond Access: Exploring Implementation of the Fair and Equitable
Sharing Commitment in the CBD (IUCN 2007) 1 <https://portals.iucn.org/library/node/9101> accessed 16 January
2020.
50 Sarah Laird and others, ‘Rethink the Expansion of Access and Benefit Sharing’ (2020) 367 Science 1200, 1201. 51 Pavoni and Piselli (n 42) 239.
52 ‘A Brief History on the Convention on Biological Diversity’ (Secretariat of the Convention on Biological Diversity)
<https://d3n8a8pro7vhmx.cloudfront.net/ubcic/pages/1448/attachments/original/1485906157/CBD_History.pdf?1485 906157> accessed 28 January 2020.
53 Braulio Dias, ‘Preface’, The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications for
International Law and Implementation Challenges (Martinus Nijhoff Publishers 2013).
54 Pavoni and Piselli (n 42) 239.
55 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79
20 an agreement to correct injustices as well by promoting equity through sovereignty and access to genetic resources and fair and equitable sharing of its benefits (ABS).56
First, the CBD established sovereign rights which authorises control over resources lying within the jurisdiction of the State.57 Sovereignty was assumed to facilitate biodiversity conservation and sustainable
use better than the formal application of the ‘common heritage of mankind’ principle on genetic resources.58
If there was anybody wishing to access and use genetic resources, they had to fulfil the demands of justice in exchange negotiated by the national governments.59 The demands could help the provider countries to achieve
the underlying objectives of the CBD by allocating the benefits towards biodiversity conservation and sustainable use. The tacit social rules were now formally replaced by international framework as a legal base.
Second, ABS was pushed forward as a possible mechanism in order to achieve the CBD objectives.60
ABS is characterised by a bilateral approach to transnational agreements between individuals, private entities, ILCs, institutions and/or governments. Due to the crossing of the public-private divide, the CBD provided a multilateral framework to coordinate the trans-jurisdictional aspects of access genetic resources by users in one country and rewarding providers in other countries for their contribution to the development of products that are eventually commercialised.61 On the one hand, ‘access’ refers to the legal requirements under which
samples of biological or other material can be obtained for research, conservation, industrial application or commercial use. On the other hand, rewarding providers, known as ‘benefit sharing’, concerns the fair and equitable allocation of direct and indirect benefits arising from the utilisation and commercialisation of genetic resources among users and providers. The aspect of benefit sharing is seen as an inter-State approach to achieve equity by providing justice in exchange.62
56 Elisa Morgera and Elsa Tsioumani, ‘The Evolution of Benefit Sharing: Linking Biodiversity and Community
Livelihoods: The Evolution Of Benefit Sharing’ (2010) 19 Review of European Community & International Environmental Law 150, 153.
57 Christine Willmore, ‘Sovereignty, Conservation and Sustainable Use’, Biodiversity and Nature Protection Law
(Edward Elgar Publishing Ltd 2017) 32.
58 Schroeder (n 36) 14.
59 Doris Schroeder, ‘Benefit Sharing: It’s Time for a Definition’ (2007) 33 Journal of Medical Ethics 205, 207. 60 Laird and Wynberg (n 27) 3.
61 Philippe Cullet, ‘Environmental Justice in the Use, Knowledge and Exploitation of Genetic Resources’ in Jonas
Ebbesson and Phoebe Okowa (eds), Environmental Law and Justice in Context (Cambridge University Press 2009) 372 <https://www.cambridge.org/core/product/identifier/CBO9780511576027A031/type/book_part> accessed 29 January 2020.
62 Morgera and Tsioumani (n 68) 151–9; Braulio Dias, ‘Preface’, The 2010 Nagoya Protocol on Access and
Benefit-Sharing in Perspective: Implications for International Law and Implementation Challenges (Martinus Nijhoff
21
I.2 Further navigation by the Nagoya Protocol
15. Years after the adoption of the CBD, only 10 per cent of its Parties had adopted specific ABS measures in their domestic law.63 The implementation seemed to be difficult due to uncertainties and mistrust
among the different stakeholders and Parties of the CBD.64
First, concerns were raised on the clarity of the CBD.65 The text had been criticised for being
ambiguous and vague on the scope, the relationship to other international agreements and intellectual property rights.66 In an attempt to resolve these frustrations, the Parties decided to develop a common
understanding of the basic concepts of ABS and to explore all options including guiding principles, guidelines and codes of best practice.67 In 2002, the Bonn Guidelines68 were adopted to assist governments in the
adoption of ABS measures in their countries.69 Due to their voluntary nature, Parties still had no firm
obligations to introduce the proposed provisions by the CBD.70 As a result, many developed countries did
not mind to establish national ABS measures at all.
Second, cooperation and collaboration at national level was difficult.71 On the one hand, the CBD
identified the need for cooperation between Northern and Southern countries in the form of partnerships in articles 5 and 18. On the other hand, the CBD expressed the necessity to improve stakeholder involvement. It included people concerned with biodiversity issues and access and benefit-sharing, such as experts, scientists, policy makers and the private sector.72 Nearly half of the Parties reported struggles to establish
effective partnerships.73 Furthermore, national governments drafted their laws in order to achieve of the CBD
63 Tomme Young and others, Covering ABS: Addressing the Need for Sectoral, Geographical, Legal and International
Integration in the ABS Regime: Papers and Studies of the ABS Project (IUCN 2009) 151
<http://data.iucn.org/dbtw-wpd/html/EPLP-067-5/cover.html> accessed 2 March 2020.
64 Dias (n 53).
65 Elisa Morgera and Elsa Tsioumani, ‘Yesterday, Today, and Tomorrow: Looking Afresh at the Convention on
Biological Diversity’ (2010) 21 Yearbook of International Environmental Law 3, 3.
66 Melinda Chandler, ‘The Biodiversity Convention: Selected Issues of Interest to the International Lawyer’ (1993) 4
Colorado Journal of International Environmental Law and Policy 141, 174.
67 COP CBD, ‘Decision IV/8 Access and benefit-sharing’ (15 May 1998).
68 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their
Utilization (adopted 7 April 2002) <http://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf>
69 ‘The Bonn Guidelines Factsheet’ (Secretariat of the Convention on Biological Diversity 2011) 3
<https://www.cbd.int/abs/infokit/revised/web/factsheet-bonn-en.pdf>.
70 Amandine Orsini, Sebastian Oberthür and Justyna Po, ‘Transparency in the Governance of Access and Benefit Sharing
from Genetic Resources’, Transparency in Global Environmental Governance: Critical Perspectives (MIT Press 2014) 165.
71 Alvin Chandra and Anastasiya Idrisova, ‘Convention on Biological Diversity: A Review of National Challenges and
Opportunities for Implementation’ (2011) 20 Biodiversity and Conservation 3295, 3309.
72 ibid.
73 ‘Synthesis of Information Contained in Third National Reports’ (Secretariat of the Convention on Biological Diversity
22 objectives on their own territories.74 They overlooked to implement a legal remedy for the access of genetic
resources and traditional knowledge without PIC in other jurisdictions.75 As a result, it was hard to verify if
practices of illegal access continued, which affected the level of trust among Parties.76
As to be expected, the developing countries were feeling left aside. It became clear further efforts to elaborate, strengthen, and complement the ABS system in the CBD were desired. Developing countries took matters into their own hands due to the developed countries’ facade of indifference. In 2002, the Group of Like-Minded Megadiverse Countries (LMMC) was established by 17 developing countries that contain over 70% of global biodiversity.77 It started out as a mechanism for consultation and cooperation to promote and defend
their interest to biodiversity. Later on, the LMMC was used to voice out the opinions of the represented countries on the challenges on the CBD’s implementation. After the international community failed to reach the 2010 biodiversity target, the LMMC asked for a balanced and effective Protocol on ABS.78
16. After prolonged deliberations, the Nagoya Protocol79 on access and benefit-sharing was adopted
during the tenth COP in 2010. The Protocol set out the contemporary international regime on ABS, consisting of access to genetic resources and fair and equitable sharing of its benefits. To gain access, the user must receive permission from the provider country, which is known as prior informed consent (PIC). The provider country is obligated by the Protocol to issue a permit as evidence to the ABS Clearing House (ABSCH). After granting the PIC, the user and the provider country negotiate an agreement, which is known as mutually agreed terms (MAT).80 These transactions are based on the existing national ABS legislation of both
countries. In order to acquire transparency, the Protocol imposes an obligation to establish clear rules and procedures to require PIC.
74 Reji K Jospeh, ‘International Regime on Access and Benefit Sharing: Where Are We Now?’ (2010) 12 Asian
Biotechnology and Development Review 77, 78.
75 ibid. 76 ibid.
77 Bolivia, Brazil, China, Colombia, Costa Rica, Democratic Republic of Congo, Ecuador, India, Indonesia, Kenya,
Madagascar, Malaysia, Mexico, Peru, Philippines, South Africa and Venezuela. Guatemala joined in 2011.
78 UNGA, ‘Statement by H.E. Ms Izabella Teixeira, Minister of the Environment of Brazil, on behalf of the Group of
Like-Minded Megadiverse Countries at the panel discussion on “The way forward in achieving the three objectives of the CBD, and the internationally agreed biodiversity goals and targets”’ (22 September 2010) LMMC/2010/UR/001.
79 Nagoya Protocol and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on
Biological Diversity (adopted 29 October 2010, entered into force 12 October 2014) (Nagoya Protocol) <https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf>
80 However, the Nagoya Protocol does not contain a provision for the disclosure of evidence for fair and equitable
23 The Protocol has special attention for ILCs. A specific obligation to require PIC or approval is included, as well as an obligation to involve ILCs whenever traditional knowledge associated with genetic resources is accessed. However, the Protocol does not protect publicly available traditional knowledge.81 To prevent
misappropriation, developing countries need to codify or register their traditional knowledge.82
II. Biodiversity conservation by ABS
17. International governance of ABS is an attempt to redistribute the benefits of the utilisation of genetic resources in order to create incentives and generate economic benefits for biodiversity conservation.83
Genetic resources provide services and goods as a base for many products. The valorisation of genetic resources is an indirect effect intended to set an incentive for their conservation.84 Benefit sharing is expected
to distribute costs and benefits that satisfies both users and providers’ expectations addressing injustices about ownership and control over resources.85 However, a price is mainly attributed to the commercial use of these
resources.86 As a result, benefit sharing is more like an empty promise which emphasizes its advantages
without taking into consideration the related risks.87 On the one hand, dominating countries decide on
defining fairness during transactions. Hence, there is a possibility to neglect or even discriminate against some groups of stakeholders.88 On the other hand, ABS is an inherently exploitative manner of environmental
management. Genetic resources are accessed in ABS transactions, however there is limited evidence on how ABS supports biodiversity conservation and sustainable use of its components through benefit sharing.89
81 This goes against the wishes of the developing countries, which demanded to apply PIC and MAT to publicly available
traditional knowledge as well.
82 Jospeh (n 74) 88.
83 Oberthür and Rosendal (n 29) 1.
84 Franziska Wolff, ‘The Nagoya Protocol and the Diffusion of Economic Instruments for Ecosystem Services in
International Environmental Governance’, Global Governance of Genetic Resources: Access and Benefit Sharing after
the Nagoya Protocol (Routledge 2014) 135.
85 Thomas M Franck, ‘Fairness and International Law: An Analytical Framework’, Fairness in International Law and
Institutions (Oxford University Press 1998) 7.
86 Franziska Wolff, ‘The Nagoya Protocol and the Diffusion of Economic Instruments for Ecosystem Services in
International Environmental Governance’, Global Governance of Genetic Resources: Access and Benefit Sharing after
the Nagoya Protocol (Routledge 2014) 135; Elisa Morgera, ‘Conceptualizing Benefit-Sharing as the Pursuit of Equity
in Addressing Global Environmental Challenges’ (University of Edinburgh 2014) 2 <http://www.ssrn.com/abstract=2524003> accessed 29 January 2020.
87 Gillian Haddow and others, ‘Tackling Community Concerns about Commercialisation and Genetic Research: A
Modest Interdisciplinary Proposal’ (2007) 64 Social Science & Medicine 272, 4.
88 Morgera (n 86) 3. 89 Wolff (n 84) 135–139.
24 Discussions on ABS are mainly focused on administrative and legal issues related to access instead of how ABS could contribute effectively to biodiversity conservation and sustainability.90
II.1 Principles of ABS practicality
18. ABS has to be practical to effectively contribute to biodiversity conservation and sustainable use of its components. The current system bumps into different concerns which holds back the real potential of ABS, especially benefit sharing. Three principles have been pushed forward to improve the present system: benefits should outweigh costs, innovative models for benefit sharing and an effective combination of rights and incentives.91
19. The monetary and non-monetary benefits of ABS should outweigh costs of setting up and implementing an ABS framework. By focusing on preventing biopiracy at all costs, some countries adopt a protectionist system rather than trying to create a business model to incentivise biodiversity conservation and sustainable use of its components. The Nagoya Protocol proposes certificates of compliance, unique identifiers and checkpoints to aid in tracking and monitoring, however most ABS frameworks try to enforce compliance by a penal system involving tight access controls, high surveillance and tough penalties.92 Within
these frameworks, it is harder to offset the high transaction and opportunity costs through the limited benefits they generate.93 The bureaucracy results in a long way from user to the land and/or resource that needs
protection.94 Accordingly, the strict ABS systems raise questions regarding their usefulness for potential
research and commercial use of genetic resources and associated traditional knowledge. The alternative to a protectionist ABS framework is a system that facilitates transactions in order to generate benefits for biodiversity conservation.95 These systems are characterised by low set up costs and easy to comply with
ABS laws.96 The focus is shifted from restricting access to prevent the minority of biopirates to facilitating
access for law-abiding majority of users.97 An example of a facilitative system is to work with a permitting
system, which is currently found in the South African ABS framework.98 Before the beginning of any
90 Balakrishna Pisupati and Sanjay K Bavikatte, ‘Access and Benefit Sharing as an Innovative Financing Mechanism’
(2014) 16 Asian Biotechnology and Development Review 18, 57.
91 ibid 58–63. 92 ibid 59. 93 ibid.
94 Oberthür and Rosendal (n 6) 244. 95 Pisupati and Bavikatte (n 90) 60. 96 Morgera, Tsioumani and Buck (n 43) 10. 97 Pisupati and Bavikatte (n 90) 60.
25 bioprospecting activities, the user should obtain a scoping permit. At a later stage, there is more clarity on the potential of the activities and likely benefits to come along with them. At this stage, the user can apply for a second permit for commercialisation, linked with negotiations on sharing the possible benefits. Within the facilitative frameworks, there are still possibilities of users violating the ABS obligations. However, a bigger percentage of the users will comply due to efficiency and simplicity of the framework which could lead to higher benefits for biodiversity conservation.99
20. Innovative models for benefit sharing should be developed. An important proposal is to prioritise incentives over penalties to motivate compliance with ABS laws.100 Enforcement and compliance may have
a great bearing on the actual functioning of ABS as an incentive for biodiversity and sustainable use.101
Possible incentives have been proposed to motivate benefit sharing such as ABS certification, tax subsidies for engaged ABS users and low interest loans for research relating to genetic resources and associated traditional knowledge. Another possibility is to shift the balance to modest but steady revenues from ABS over infrequent but substantial pay offs.102 For users, modest but steady revenues could be more appropriate
to their market realities and costs of research and development projects.103 For providers, it could increase
certainty to receive actual benefits.104 It is a possibility to share benefits along the value chain rather than
only through MAT.105 For example, an access and/or processing fee could be charged when users apply for
bioprospecting permits.106 It could help to offset the costs incurred by processing these applications. Another
proposal is the establishment of security deposits during the bioprospecting phase.107 When the
bioprospecting activities lead to a discovery with the potential for commercialisation, the benefits could be shared with the providers. When the bioprospecting activities end without any commercial potential, the deposit could be returned to the users.
21. The underlying objective of ABS is to lead to biodiversity conservation and sustainable use of biodiversity through an effective combination of rights and incentives. Two existing environmental tools have been promoted to realise this principle. A first possibility is the use of protected areas. A protected area is “a geographically defined area, which is designated or regulated and managed to achieve specific
99 Pisupati and Bavikatte (n 90) 60. 100 ibid 62.
101 CBD Decision 10/44, “Incentive measures” (20 January 2011) UN Doc UNEP/CBD/COP/10/27, paragraph 14. 102 Pisupati and Bavikatte (n 90) 61.
103 ibid.
104 Oberthür and Rosendal (n 6) 244. 105 Pisupati and Bavikatte (n 90) 61. 106 ibid.
26 conservation objectives”.108 The use of ABS mechanisms can be used as an important option for long-term
sustainable management of protected areas.109 For example, the benefits of bioprospecting in these areas
could be invested directly into the operational costs of maintenance. There have yet been limited attempts to link these activities to sustainably manage protected areas.110
A second possibility is the regulation of ethical sourcing, also known as biotrade.111 Biotrade refers to “those
activities of collection, production, transformation, and commercialisation of goods and services derived from native biodiversity under the criteria of environmental, social and economic sustainability”.112 Apart
from economic and social incentives, it additionally entails financial and physical incentives.113 Whenever a
company would like to differentiate themselves in the market by providing ethical products, they can become a member of the Union for Ethical BioTrade (UEBT).114 Due to the growing consumer interest in biodiversity,
this membership and the production of ethical products could sequentially provide for substantial benefits. Biotrade and ABS are linked in ‘BioTrade Principle 3 Fair and equitable sharing of benefits derived from the use of biodiversity’.115 It is worth mentioning that the ‘BioTrade Principles’ go beyond the CBD
and the Nagoya Protocol. They are not limited to genetic resources, meaning some activities fall outside of the scope. However, the impact on research and development on identifying new possible activities is particularly important.116 The utilisation of genetic resources could lead to increased trade of its components,
which could result in unsustainable harvest or collections rate, negative changes in ecosystems and the rise of social inequities.117 Nonetheless, ABS linked with trade of natural ingredients could promote local
livelihoods, recognise traditional practices and values, and provide incentives for biodiversity conservation and its sustainable use.118
108 Article 2 CBD.
109 Balakrishna Pisupati, ‘Protected Areas and ABS: Getting Most of the Two’ (Fridtjof Nansen Institute 2014) 12. 110 ibid 4.
111 COP CBD, ‘Decision IX/6 Incentive Measures’ (9 October 2008) UNEP/CBD/COP/DEC/IX/6; COP CBD,
‘Decision IX/26 Promoting Business Engagement’ (9 October 2008) UNEP/CBD/COP/DEC/IX/26.
112 Defined by United Nations Conference on Trade and Development <
https://unctad.org/en/Pages/DITC/Trade-and-Environment/BioTrade.aspx> accessed 9 January 2020.
113 United Nations Conference on Trade and Development, The Business of Biotrade: Using Biological Resources
Sustainably and Responsibly (United Nations 2014) 8.
114 ibid 26.
115 UNCTAD BioTrade Initiative, ‘BioTrade Principles and Criteria’ (2007) UNCT AD/DITC/TED/2007/4.
116 See UN, ‘Implications for BioTrade of the Nagoya Protocol on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits Arising from their Utilization’ (2011) UNCTAD/DITC/TED/2011/9.
117 Maria Julia Oliva, ‘The Implications of the Nagoya Protocol for the Ethical Sourcing of Biodiversity’, The 2010
Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications for International Law and Implementation Challenges (Martinus Nijhoff Publishers 2013) 372.
118 COP CBD, ‘Decision VIII/17 Private-Sector Engagement’ (15 June 2006) UNEP/CBD/COP/DEC/VIII/17; COP
27 It might be possible that in an ABS transaction the use of biotrade results in more biodiversity conservation in comparison to solely using sharing benefits. However, this is not reflected in how these mechanisms are regulated. On the one hand, ABS is a rapidly developing and evolving field of law where each Party of the CBD and/or the Nagoya Protocol implements their national ABS framework. Especially the ‘access’ is regulated tightly, which is not always the case for the ‘benefit sharing’. Due to a regulation overflow, ABS can be difficult to realise, unpredictable, expensive, and too bureaucratic.119 On the other
hand, biotrade remains unregulated or poorly regulated in most provider countries, apart from the possible advantages.
III. Conclusion
22. In 1992, there was an international shift on the status of genetic resources from ambiguity to state sovereignty. The CBD established sovereign rights of provider countries over their genetic resources, which implies that the principle of ‘common heritage of mankind’ is not applicable on genetic resources. Therefore, anyone involved in biopiracy is violating international law. Establishing sovereign rights over genetic resources goes hand in hand with the underlying idea of the CBD to reduce asymmetries between developing and developed countries. In this context, ABS was introduced. However, the formation of a functioning ABS system has been proven to be a difficult process. Evidence of biodiversity conservation and sustainable use of its components is still awaited. Several proposals have been pointed out to achieve the CBD’s objective, such as improving efficiency, introducing innovative models for benefit sharing and implementing an effective combination of rights and incentives. Some voices point out the opportunities and potential of linking ABS with biotrade activities.
28
PART II
I. Conserving biodiversity through legislation
23. The national implementation should enable biodiversity conservation through ABS. The following measures in the national ABS framework could possibly lead to biodiversity conservation: financial mechanisms, provisions on biodiversity monitoring, provisions on in-situ and ex-situ conservation and economic or social incentives.
Firstly, the concept of monetary benefits and financial mechanisms, including access fees, joint ventures, up-front payments, license fees, royalties, salaries and trust fund payment is examined. Monetary benefits could be deposited or transferred to funds or organisations supporting conservation and sustainable use of biodiversity.
Secondly, provisions on biodiversity monitoring, implementing article 7 of the CBD are dealt with. It refers to the repeated observation or measurement to determine the status and trends of biodiversity. By identifying components important for conservation and components that require urgent measures, better insights into the natural world are possible. Biodiversity monitoring can help in identifying the limit of exploitation and commercialisation of genetic resources.120 Additionally, it entails an economic incentive.
Little is known about the extent of the world’s biodiversity which implies making an accurate assessment of potential value of a genetic resource difficult.121 By biodiversity monitoring, the aim can be to ensure that the
use of a certain resource is not higher than its regenerative or productive capacity.122 In other words, it enables
us to estimate the limits to human use necessary in order to sustain these systems.123 As a result, it could spark
interest for potential users and simplify the bioprospecting process.
Thirdly, specific provisions implementing articles 8, 9 and 10 of the CBD on in-situ conservation, ex-situ conservation and sustainable use of components of biological diversity are sought. On the one hand, the measures could be on conservation, including establishing protected areas, rehabilitating degraded ecosystems, eradicating invasive alien species, maintaining facilities for ex-situ conservation et cetera. On the other hand, the measure could promote sustainable use by protecting sustainable customary use or encouraging cooperation between governments and the private sector.
120 Shova Devi and Manchikanti Padmavati, ‘Biodiversity Monitoring: A Pre-Condition to Access and Benefit Sharing
under the Indian Biological Diversity Act, 2002’ (2016) 21 Journal of Intellectual Property Rights 288, 290.
121 Rosendal (n 10) 441.
122 Devi and Padmavati (n 120) 290.
29 Fourthly, the creation of economic or social incentives and the involvement the private sector, implementing article 11 of the CBD are examined. Economic and regulatory instruments could foster allocation of benefits directly or indirectly, similarly for the creation and use of markets.124 During different
Conferences of the Parties (COPs), the importance of incentive measures has been emphasised for the improvement of biodiversity conservation and sustainable use.125 Additionally, private companies can be
influential on governments and can be able to possess biodiversity-relevant knowledge and technological resources. Therefore, the involvement of the private sector can create new possibilities and hopes for biodiversity conservation. Due to the importance of equity under the biodiversity regime, benefit-sharing agreements can be used as an incentive tool to channel investment into biodiversity protection.126
24. In the following sections, the aforementioned measures are sought in the national ABS systems of Brazil, India and South Africa.
124 Secretariat of the Convention on Biological Diversity, Bonn Guidelines on Access to Genetic Resources and Fair
and Equitable Sharing of the Benefits Arising out of Their Utilization (2002) 15 <http://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf> accessed 14 November 2019.
125 COP CBD, ‘Decision IX/6 Incentive Measures’ (9 October 2008) UNEP/CBD/COP/DEC/IX/6; COP CBD,
‘Decision X/44 Incentive Measures’ (29 October 2010) UNEP/CBD/COP/DEC/X/43; COP CBD, ‘Decision XI/30 Incentive Measures’ (5 December 2012) UNEP/CBD/COP/DEC/XI/30; see also CBD, ‘Proposals for the Design and Implementation of Incentive Measures’ (2004).
126 Riccardo Pavoni, ‘Channelling Investment into Biodiversity Conservation: ABS and PES Schemes’ in Pierre-Marie
Dupuy and Jorge E Vinuales (eds), Harnessing Foreign Investment to Promote Environmental Protection (Cambridge University Press 2013) 8 <https://www.cambridge.org/core/product/identifier/9781139344289%23c03077-8-1/type/book_part> accessed 7 January 2020.
30
II. Brazil
25. It is estimated that Brazil is home to 20% of the planet’s biodiversity, making it one of the most biodiverse countries in the world.127 The lush fauna and flora sparked scientists’ interest for the undeniable
potential for new discoveries. Besides, this diversity is reflected in their culture and identity. Brazil is home to hundreds of indigenous ethnic groups, speaking approximately 180 different languages.128 Companies have
tried to appropriate this richness without PIC in the past. The Bioamazonia-Novartis agreement of 1999 was followed by controversy due to the depletion of the Amazon without safeguarding the environment and involving the ILCs.129 On the one hand, the generated benefits were not allocated for the preservation of the
Amazon.130 The government could not counter this criticism, due to the lack of clarity on the benefit sharing
clause.131 On the other hand, there was no compensation for the ILCs. Hence, the contract led to unjust
enrichments by only sharing benefits with the government.132 To mitigate the situation, the Brazilian
government annulled the contract and passed a Provisional Measure on ABS.133 It was seen as an important
milestone in the fight against biopiracy.134 However, the measure has been described as being defensive to
the point where bioprospecting and research activities were restricted in Brazil.135 It placed strict and
bureaucratic requirements for accessing genetic resources which led to high transaction costs for users.136
During the following years, Brazil evolved into a newly industrialised country, pursuing significant social and economic development.137 Hence, their interests are not solely from the provider perspective. While
127 Russell Mittermeier, Megadiversity: Earth’s Biologically Wealthiest Nations (CEMEX 1997).
128 Carlos de Mattos Scaramuzza, ‘National Biodiverisy Strategy and Action Plan (v.3)’ (Ministry of the Environment
2017) 21.
129 Danley (n 41) 319.
130 Robin L Scott, ‘Bio-Conservation or Bio-Exploitation: An Analysis of the Active Ingredients Discorvery Agreement
between the Brazilian Institution Bioamazonia and the Swiss Pharaceutical Company Novartis’ (2003) 35 George Washington International Law Review 977, 990.
131 ibid 991.
132 S Peña-Neira, C Dieperink and H Addink, ‘Equitably Sharing Benefits from the Utilization of Natural Genetic
Resources: The Brazilian Interpretation of the Convention on Biological’ 6 Electronic Journal of Comparative Law 18, 16.
133 Jorge Cabrera Medaglia, ‘The Implementation of the Nagoya Protocol in Latin America and the Caribbean:
Challenges and Opportunities’, The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications
for International Law and Implementation Challenges (Martinus Nijhoff Publishers 2013) 336.
134 National Biodiversity Strategy and Action Plan (v.3) 25 (adopted 31 August 2016)
https://www.cbd.int/doc/world/br/br-nbsap-v3-en.pdf.
135 Geoffroy Filoche, ‘Biodiversity Fetishism and Biotechnology Promises in Brazil: From Policy Contradictions to
Legal Adjustments’ (2012) 15 The Journal of World Intellectual Property 133, 137.
136 NBSAP (v.3) 26.
137 See Gurdial Singh Nijar, ‘The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: An Analysis’
(CEBLAW 2011) <https://biogov.uclouvain.be/multistakeholder/presentations/Gurdial-Nijar-NagoyaProtocolAnalysis-CEBLAW-Brief.pdf>.
