Session 4: The Convention on Biological Diversity Making Access Decisions

Law and Policy of Relevance to the Management of Plant Genetic Resources Objectives of Session 4  To analyse and apply key principles of the Convention on Biological Diversity (CBD) regarding access to genetic resources and benefit sharing

Law and Policy of Relevance to the Management of Plant Genetic Resources Convention on Biological Diversity CBD entered into force in As of December, 2004 it had 188 Parties Objectives: conservation of biodiversity, sustainable use of its components and the equitable sharing of benefits arising from access to and use of genetic resources

Law and Policy of Relevance to the Management of Plant Genetic Resources Scope of CBD CBD covers biodiversity at the ecosystem, species and gene levels It applies to all types of genetic resources, both wild and domesticated, in in situ and ex situ conditions

Law and Policy of Relevance to the Management of Plant Genetic Resources General CBD Provisions The CBD establishes a set of mechanisms and principles oriented at the conservation and sustainable use of biodiversity including: a) Cooperation among Parties b) General measures for conservation (i.e., development of biodiversity strategies) c) Identification and monitoring d) In situ conservation (i.e., protected areas systems) e) Ex situ conservation (as a complement to in situ conservation)

Law and Policy of Relevance to the Management of Plant Genetic Resources General CBD Provisions (cont.) e) Sustainable use of biodiversity components f) Incentives g) Research and training h) Public education and awareness i) Impact assessment j) Exchange of information k) Financial mechanism

Law and Policy of Relevance to the Management of Plant Genetic Resources Conference of the Parties (COP) Secretariat Subsidiary Body on Scientific, Technical and Technological Advice Other subsidiary bodies (ABS working group, 8(j) working group) Financial mechanism – GEF Institutional Structure of the CBD

Law and Policy of Relevance to the Management of Plant Genetic Resources Access to Genetic Resources and Benefit Sharing under the CBD The issue of sovereignty: In recognition of their sovereignty, countries (Parties) have the right to determine how and under what conditions their natural resources (including genetic resources) may be accessed and used Sovereignty does not necessarily equal property. Countries may have different legal regimes, which determine the legal status of their natural resources and, ultimately, who owns them

Law and Policy of Relevance to the Management of Plant Genetic Resources Access to Genetic Resources and Benefit Sharing under the CBD Access to and use of genetic resources should be based on PIC and MAT Parties should facilitate access to genetic resources Benefits (monetary and non-monetary) derived from access to and use of genetic resources should be equitably shared (with the country of origin) Benefits may include access to and use of technologies (especially biotechnology) that make use of genetic resources IPR should be respected (the CBD recognizes IPR may have an impact on conservation of biodiversity)

Law and Policy of Relevance to the Management of Plant Genetic Resources Access to Genetic Resources and Indigenous Communities’ Knowledge, Innovations and Practices Parties should preserve and respect indigenous communities’ knowledge, innovations and practices as they relate to genetic resources The use of their knowledge, innovations and practices should be based on PIC Indigenous communities should participate equitably and fairly in the benefits derived from access to and use of their knowledge, innovations and practices

Law and Policy of Relevance to the Management of Plant Genetic Resources How can benefits be shared among Parties? Through : Appropriate access to genetic resources Access to and transfer of technology (including biotechnology and technology protected by IPR on mutually agreed terms [MAT]) Appropriate funding Joint development of technology Participation in the commercial benefits arising from the use of genetic resources Exchange of information, repatriation of data and information, capacity building and training, etc. Strengthening of national capabilities

Law and Policy of Relevance to the Management of Plant Genetic Resources The CBD IPR Principles Need to strike a balance between securing access to and transfer of technology and respecting intellectual property rights over technology Parties recognize that intellectual property (especially patents) may have an influence in the overall implementation of the CBD

Law and Policy of Relevance to the Management of Plant Genetic Resources The CBD and Ex Situ Conservation In relation to ex situ conservation, the CBD establishes that: Ex situ conservation and research on plants, animals and microorganisms should preferably be undertaken in the country of origin Parties should adopt measures for the recovery and rehabilitation of threatened species as well as their reintroduction Parties should manage collections from natural habitats, so as not to threaten ecosystems All of these may have implications for access and benefit sharing, IPR and biosafety.

Law and Policy of Relevance to the Management of Plant Genetic Resources Ex Situ Centres and the CBD Most genebanks, botanical gardens, micoorganisms collections, aquaria and all ex situ facilities (whether they undertake research or not) play a dual role: They collect, receive, maintain materials and specimens (they have access to …) They transfer these materials and specimens Their situation with respect to ABS is special as they act as both recipients and providers

Law and Policy of Relevance to the Management of Plant Genetic Resources Ex situ Centres and the CBD Many ex situ centres use Material Transfer Agreements (MTAs) to transfer materials and specimens These MTAs are contracts that establish the conditions under which access to collections may be granted Many centres (i.e., CGIAR IARCs) have ABS policies/rules in place

Law and Policy of Relevance to the Management of Plant Genetic Resources A Special Case Regarding Ex Situ Conservation under the CBD CBD Resolution 3 recognized the need to seek solutions to the issue of genetic resources within the framework of the Global System for the Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture, especially in regards to access to ex situ collections not acquired in accordance with CBD principles This situation has been addressed (in the case of the CGIAR International Agriculture Research Centres) in the FAO International Treaty

Law and Policy of Relevance to the Management of Plant Genetic Resources Access and Benefit-Sharing Policies and Legislation Executive Order 247 Philippines (1995) Decision 391 of the Andean Community (1996) Law 7788 Biodiversity Law of Costa Rica (1998) OAU Model Law (1998) Provisional Measure – 8 (2001) on access to genetic resources (Brazil) Law 2058 on access to genetic resources of Nepal (2001) Bonn Guidelines on Access and Benefit Sharing FAO International Treaty (2001) Etc.

Law and Policy of Relevance to the Management of Plant Genetic Resources Basic Content in ABS Legislation Most laws and instruments respond to the following structure: Definitions Scope (what is covered?) Access conditions (clauses on benefits, IPR, penalties) Procedures (who gives PIC? With whom are MAT agreed? Is a contract, MTA or permit used?) Institutional structure (who is the competent authority?)