Accessing genetic resources and sharing the benefits:
Lessons from implementing the Convention on Biological Diversity
International Workshop, 2931 October 2003
MU II, Davis Campus, University of California, Davis CA USA
(an Adobe(R) Acrobat(R) portable
document format (pdf) version of
this document may be obtained here)
In 1992, the Convention on Biological Diversity (CBD)
provided a mandate for countries to develop national genetic
resources access and benefit-sharing (ABS) policies. In the last
ten years, however, countries have encountered multiple obstacles
in developing such policies. Further motivation for developing
national ABS policies was provided by the 2001 Bonn Guidelines
on Access to Genetic Resources and Fair and Equitable Sharing
of the Benefits Arising out of their Utilization. In addition,
the Plan of Implementation that came out of the 2002
Johannesburg World Summit on Sustainable Development recommended
(a) promotion of the wide implementation of and continued work
on the Bonn Guidelines on ABS as an input for countries developing
ABS policies and (b) the negotiation of the development of an
international regime to promote the fair and equitable sharing
of benefits derived from the use of genetic resources. Only a
limited number of countries have developed and implemented ABS
policies and there has been a slowing of the flow of genetic
resources and reciprocal benefits between countries.
A large-scale and comparative analysis of different national
experiences with the development and implementation of ABS policies
in all the Pacific Rim countries that have signed the CBD was
initiated in 2001 by the University of California. An overview
of the results was presented at a workshop held 29-31 October
2003 at the University of California, Davis. Forty-five experts
on ABS issues from seventeen Pacific Rim countries, multilateral
organizations involved in CBD implementation, NGOs with CBD expertise,
collections-based organizations, industry, and academia participated.
The workshop also provided an opportunity to define the main
elements and gaps of the existing international system of ABS
governance, the main elements of the future international regime
on ABS, and measures that might be taken by the international
community to enhance effective international governance. These
are the main conclusions reached during the workshop:
Main elements of the existing international
system of ABS governance
- Hard law elements (CBD, TRIPS, International Treaty on Plant
Genetic Resources for Food and Agriculture, international phytosanitary
laws, regional and national ABS, IPR, and traditional knowledge
laws and policies).
- Soft law elements (Bonn Guidelines, national biodiversity
strategies and action plans, and regional policies, such as Organization
of African Unity ABS Model Law).
- Codes of Conduct: Professional societies (such as the International
Society for Ethnobiology), institutional groups (such as botanical
gardens), and private sector companies have adopted codes of
conduct or ethics that provide guidelines about the collection
of samples and traditional knowledge and benefit-sharing criteria.
Gaps in the existing international
system of ABS governance
- Many countries are struggling to develop national ABS laws
and policies. Lack of technical expertise, budgetary constraints,
weak government structures and political support, local social
conflict, and conflict over ownership of genetic resources are
some of the factors that have prevented the development of these
laws and policies. In the Pacific Rim region 41 countries have
signed the CBD. Only 22% of these countries have developed a
national ABS law or policy, 58% of these countries are in the
process of developing these laws and policies, and 20% are not
engaged in any systematic process leading to the development
of these ABS frameworks.
- Implementation of ABS policies and laws has been relatively
poor all over the world. In the Pacific Rim region, national
ABS laws in the Philippines, Costa Rica, Samoa, Mexico, and the
United States (not a CBD member) have been invoked to facilitate
access to a total of 29 bioprospecting projects since 1992. (Other
projects have been implemented under bilateral ABS agreements.)
Issues identified with the slow implementation of national laws
include PIC conflicts, lengthy and overly complex application
procedures, ambiguities in the scope of ABS frameworks, inadequate
biodiversity conservation incentives, and variation in the expertise
on these issues among the individuals assigned the responsibility
for carrying out the development of ABS policies from nation
- There is a gap between expectations of what bioprospecting
might deliver and the reality of what it can deliver. For some
persons, the issue is that as yet there are no clear guidelines
on what amounts to equitable benefit sharing; there is an excessive
focus on monetary benefits; and technology transfer is neither
well defined and understood nor well linked to genetic resources
access and utilization; For others, however, the issue is an
excessive focus on nonmonetary benefits and technology transfer
thereby obfuscating the crux of the problem: unrealistically
low royalty rates that are entertained in negotiations only because
of rent-seeking behavior by authorities in the source country.
- There is a wide perception that the CBD has not led to any
significant increase in technology transfer, one of the pillars
of the CBDs ABS provisions.
- Knowledge of the processes of science and discovery in biotechnology,
of intellectual property, and of market-established agreement
(or contract) terms is fragmentary.
- There is an absence of compliance and verification mechanisms
to monitor and enforce the CBDs ABS provisions, however,
it is widely accepted that the courts should be only a final
- There is a shortage of information gathering, exchange, and
dissemination mechanisms, and a need to enhance the capacity
and scope of the CBD clearinghouse role.
Main elements of the future international
regime on ABS
- An international regime will continue to include elements
of both soft and hard law, and may involve implementation of
the CBD, strengthening of the Bonn guidelines, and development
of provider and user measures and international arbitration systems.
Measures that might be taken by
the international community to enhance effective international
- User measures such as disclosure of origin, voluntary certification
schemes, and adoption of incentives and other measures to secure
technology transfer and import/export and transport regulations
might promote compliance with ABS policies and help to ensure
the equitable sharing of benefits and an increase in transfer
- Components of national ABS policies designed to attract researchers
(including both academic and corporate bioprospectors) to study
biodiversity could be an effective means to counter the global
trend of declining bioprospecting efforts and increase opportunities
for benefit-sharing, advancement of science, and furthering our
understanding of biodiversity.
- Development of an internationally recognized system to document
the flow of genetic resources, including where appropriate a
means to provide evidence of PIC, has an important part to play
in consolidation of an effective system of international ABS
governance. The use of the terms certificates of origin, source,
and provenance have different political and practical implications.
Studies to clarify these concepts would be useful.
- The transfer of samples to third parties should not be carried
out except to the extent authorized by the countries of origin
or the authorized ex situ collection that provided the
- Transfer of technology is one of the principal forms of nonmonetary
benefit sharing provided for in the CBD and is a crucial component
of ABS. It would be useful if the CBD could initiate gathering
of information and analysis of these questions: Where do genetic
resource-related technologies occur and where have they been
transferred?; What is the extent of recipient capacity to use
and further develop such technologies?; Where has transfer been
sustainable and where not?; and What are the reasons for success
or failure in transfer of technologies?
- It is important to explore the possibility of developing
guidelines for technology transfer in the context of articles
16 and 19 of the CBD. One approach meriting consideration would
be to have the CBD include within its program of work the development
of guidelines on technology transfer.
- An ombudsman or complaints authority associated with the
CBD, as well as at regional and national levels, offers an interesting
possibility for development of alternative dispute resolution
mechanisms. An ombudsman office at the level of CBD may be linked
to a linked series of regional structures for monitoring compliance
with the CBD and Bonn Guidelines in ABS agreements.
This page last updated March 4, 2004.
Copyright UC Regents. All rights reserved.