Abstract
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.
Highlights
Received: 21 November 2021The United Nations’ Convention on Biological Diversity (CBD), concluded at theRio de Janeiro Earth Summit in 1992, has three main objectives, namely the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from the utilization of genetic resources [1]
An important pillar of the CBD and the Nagoya Protocol is the recognition of sovereign rights of states over their natural resources, and that the authority to determine access to genetic resources rests with national governments and is subject to national legislation (CBD Art. 15)
Not knowing at the outset of a project whether a provider country of a genetic resource will at all grant a permit for commercialization under its ABS laws, or ambiguous monetary benefit sharing obligations, or a risk of retro-active application of any legal provisions compromises the quality of the ROI calculation, increases the risk for private sector investors, and may thereby derail investment decisions for biodiversity-based innovations and, the potential for any form of benefit sharing is lost
Summary
Rio de Janeiro Earth Summit in 1992, has three main objectives, namely the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from the utilization of genetic resources [1]. An important pillar of the CBD and the Nagoya Protocol is the recognition of sovereign rights of states over their natural resources, and that the authority to determine access to genetic resources rests with national governments and is subject to national legislation (CBD Art. 15) This principle of national sovereignty was thought to enable and facilitate other obligations of contracting parties to the CBD, such as conservation and sustainable use of biodiversity, in situ and ex situ conservation, as well as technical and scientific. The private sector has expressed support for the overall objectives of the CBD and the Nagoya Protocol (e.g., [3]) This is part of a commitment to fair and ethical business practices and sustainability in all its dimensions (i.e., social, environmental, and economic), often subsumed under the term “Corporate Social Responsibility”, and it supports business continuity with clients, customers, suppliers, regulators, authorities, and investors. We hope that this paper helps everyone involved in the international debate on ABS, be it providers of biodiversity (e.g., national competent authorities and indigenous peoples and local communities) or other users (e.g., from academia), be it policy makers or practitioners, to better understand the priorities and constraints of the private sector, and that it thereby eases discussions about a better approach to ABS
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