Facing the Harsh Reality of Access and Benefit Sharing (ABS) Legislation: An Industry Perspective

Access and benefit sharing (ABS) is a framework which refers to a relatively recent type of legal requirements for access to and use of “genetic resources”. They are based on diverse national and regional laws and regulations, which mostly result from the implementation of the United Nations’ Convention on Biological Diversity (CBD) and its supplementary agreement, the Nagoya Protocol. Their ambition is to achieve fair and equitable sharing of benefits arising out of the use of genetic resources as an incentive to conserve and sustainably use them. This paper describes the experiences, practical constraints and complexities encountered by users of genetic resources when dealing with ABS legislation, with a focus on users from the private sector. We provide insights on how ABS laws have fundamentally changed the way of working with genetic resources, in the hope that it inspires re-thinking of the ABS framework, to better support the overall objectives of the CBD.

The Pandemic Influenza Preparedness Framework as a ‘specialized international access and benefit-sharing instrument’ under the Nagoya Protocol

The World Health Organization (WHO) is starting to come to terms with the public health implications of the United Nations’ Convention on Biological Diversity (CBD) and its supplementary Nagoya Protocol about genetic resource access and benefit-sharing (ABS). Since 2017 there have been calls to recognize the WHO’s Pandemic Influenza Preparedness (PIP) Framework as a specialized international ABS instrument under the Nagoya Protocol. This article will examine whether the PIP Framework meets the criteria of a specialized international ABS instrument as laid out in a 2018 study commissioned by the Subsidiary Body on Implementation to the CBD (CBD/SBI/2/INF/17). Our analysis concludes that while the PIP Framework meets the specialization criteria, it fails to meet the supportiveness criteria and does not provide legal certainty for pandemic influenza virus ABS. Furthermore, we demonstrate that recognition of the PIP Framework as a specialized instrument would not mean that the CBD and Nagoya Protocol no longer apply to influenza viruses with human pandemic potential as has been asserted, rendering the relationship between the three international agreements unclear. As the WHO grapples with how to regulate access to other (non-influenza) human pathogens and the fair and equitable sharing of benefits associated with their use, a full appreciation of what ABS means when applied to pathogens is essential.

Paradoxes of Ratification: The Nagoya Protocol and Brazilian State Transformations

This article explores the paradoxical behaviour of Brazil in relation to its national and international approaches to the regulations of access to genetic resources and benefits sharing with indigenous and other traditional communities. Brazil was one of the leaders in the international negotiations that led to the UN Nagoya Protocol but only ratified it 11 years later, after remarkable transformations of its internal biodiversity laws. We suggest that the seemingly contradictory behaviour has been shaped by the country’s internal political and ideological changes. This transformation goes hand in hand with substantial changes in state–society relations, particularly with regard to the balance of coalitions’ power between indigenous groups and industrial and agrarian elites. The article builds on the literature on state transformations and relies on the Advocacy Coalition Framework to show the importance of considering the impact of national-level politics on the fate of international agreements.

The Inadequacies of the French System Regarding Access and Benefit-sharing and Its Evolution through the Recognition of the Notion of Local Community in the Nagoya Protocol

The French law for the reconquest of biodiversity aims to transpose the Nagoya Protocol into national law. Rather than supporting the notion of an autochthonous and local community or even taking into account the autochthonous character of the concept of a local community, the legislature has chosen to use the notion of a community of inhabitants. The notion of local community, which is specific to environmental law, nevertheless satisfies the requirements of constitutional jurisprudence, as it does not consist of a community of origin, culture, language or belief. Beyond the logic inherent in the Law of 8 August 2016, the recognition of local communities, which is at the heart of the mechanism for sharing access and benefits, could make it possible to correct the multiple shortcomings, in terms of access to both genetic resources and traditional knowledge, associated with the sharing of the benefits that result from their use.

Right of Indigenous Communities to Prior Informed Consent under Article 7 of the Nagoya Protocol and a Comparative Analysis of Its Implementation by India and Bhutan

The Convention on Biological Diversity (cbd) was adopted in 1992. This Convention had three major objectives: conservation of biological diversity, sustainable use of its component, and access and benefit sharing of biological resources arising out of their utilisation. The Nagoya Protocol to the cbd was adopted in 2010 for the fulfilment of the third objective of the cbd, access and benefit sharing. Article 7 of the Nagoya Protocol imposes an obligation on states parties to ensure that “prior and informed consent or approval or involvement” of the indigenous and local communities is taken before their knowledge is accessed. The present study first analyses the contents of Article 7 of the Nagoya Protocol. It will throw light on the meaning of the phrase “prior and informed consent or approval and involvement” as used in Article 7. It then highlights the implementation of Article 7 by two states parties, namely, India and Bhutan.

Facing the Harsh Reality of Access and Benefit Sharing (ABS) Legislation

Access and Benefit Sharing (ABS) is a framework which refers to a relatively recent type of legal requirements for access to and/or use of “genetic resources”. They are based on diverse national and regional laws and regulations, which mostly result from the implementation of the United Nations’ Convention on Biological Diversity (CBD) and its supplementary agreement, the Nagoya Protocol. Their ambition is to achieve fair and equitable sharing of benefits arising out of the use of genetic resources as an incentive to conserve and sustainably use them. This paper describes the experiences, practical constraints and complexities encountered by users of genetic resources when dealing with ABS legislation, with a focus on users from the private sector. We provide insights on how ABS laws have fundamentally changed the way of working with genetic resources in the hope that it inspires re-thinking of the ABS framework, to better support the overall objectives of the CBD.