P. Pushpangadan & K. Narayanan Nair National Botanical Research Institute (Council of Scientific & Industrial Research) Lucknow – , India ACCESS TO BIOLOGICAL RESOURCES AND ASSOCIATED TRADITIONAL KNOWLEDGE

 Convention on Biological Diversity (CBD 1992)  WTO – Trade Related Intellectual Property Rights (TRIPS 1995)  WIPO – Inter Governmental Committee on Genetic Resources, TK and Folklore (2000) ABS : International Policy and Legal Frameworks

 FAO – International Treaty on Plant Genetic Resources for Food and Agriculture (2001)  Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising our of their Utilization (2001) ABS : International Policy and Legal Frameworks

Cancun Declaration (February 2002) Cusco Declaration on Access to Genetic Resources, TK and IPR(November 2002) Kuala Lumpur Communiqué on Institutional Building (July 2003) ABS : Like-Minded Megadiverse Countries(LMMC)

National Sovereignty Conservation, Sustainable use of biological resources & associated TK Equitable Benefit Sharing Technological, Economic & Socio-cultural development DEVELOPING AN ABS REGIME : KEY PRINCIPLES

Prior Informed Consent (PIC) Mutually Agreed Terms (MAT) Material Transfer Agreements (MTA) Equitable Benefit Sharing Monetary Benefits Non–Monetary Benefits DEVELOPING AN ABS REGIME : KEY ELEMENTS

ABS ISSUES Prior Informed Consent: Authority??? National Government Indigenous and local communities Inequities in existing legal and policy frameworks on ABS Contd…

ABS ISSUES Protection of Traditional Knowledge and Traditional Resources Rights Appropriate national legislations on ABS

Lack of uniform definitions of terms involved in ABS ABS ISSUES Access Genetic resources Commercialization Provider User Stakeholder Ex-situ collection Voluntary nature Derivatives

ABS ISSUES Lack of adequate infrastructure and human resources capabilities in biodiversity, biotechnology, bioprospecting, biodiversity legislations. Capacity Building

Disproportionate distribution of biodiversity and biotechnology in North and South ABS ISSUES

Absence of statutory national mechanism for benefit – sharing ABS ISSUES

CBD Vs. TRIPs TRIPs Article 27.3(b) Proof of :  Origin of Biological/Genetic Resources & TK  PIC for Access  Benefit Sharing Arrangements Doha Declaration, 2001

ABS ISSUES Access to Biological/Genetic Resources from ex-situ collections Geographic/Centre of Origin of Genetic Resources

ABS ISSUES Access to Biological/Genetic Resources from ex-situ collections Access Norms for:  Pre-CBD materials  Post-CBD materials  ITPGR listed plants

ABS REGIME: LMMC STRATEGIES Benefit Sharing Uniform formula for Benefit- sharing is impractical Monetary Benefit Should consider  Capital Investments  S&T, Human Resources and Intellectual Inputs  Opportunistic behaviour & Market Trends

ABS REGIME: LMMC STRATEGIES Benefit Sharing involving more than two Countries of Origin Option 1 1.Obtaining PIC from respective stakeholder countries 2.Negotiation of MATs for use of Genetic Resources & TK 3.Assessment of Benefits 4.Apportionment of Benefits Among Stakeholders as per contributions and as agreed upon in MATs

ABS REGIME: LMMC STRATEGIES Benefit Sharing involving more than two Countries of Origin Option 2  Creation of LMMC Biodiversity Fund  Part of Benefits  Entire Benefits

ABS REGIME: LMMC STRATEGIES Development of Uniform Model of MTA to ensure: Sovereign Rights Statutory Rights Legal Rights Customary Rights, if any, of participants/stakeholders

ABS REGIME: LMMC STRATEGIES Enactment of National ABS Laws: 40 CBD Parties enacted/in the process of enactment Contd….

ABS REGIME: LMMC STRATEGIES Enactment of National ABS Laws: ABS laws(National/Regional) developed by LMMC Andean Community Decision 391 (1996) ASEAN (1996) Bolivia (1997) Brazil (2001) Costa Rica (2003) Organization of African Unity (2000) Peru (2002) Philippines (1996) South Africa (2004) Venezuela (1999)

ABS REGIME: LMMC STRATEGIES Claims of Country of Origin vis a vis Country Providing Genetic Resources : Parties to Claim All Legal Rights on All Benefits from the use of Genetic Resources & TK by Third Parties MTAs and MATs should include such legitimate claims and rights

ABS REGIME: LMMC STRATEGIES Claims of Country of Origin vis a vis Country Providing Genetic Resources : Constraints Proof of Country of Origin/Centre of Origin of exotic species in ex- situ depositories Determination of Ownership and authority of PIC on Pre-CBD ex- situ collections Contd….

ABS REGIME: LMMC STRATEGIES Claims of Country of Origin vis a vis Country Providing Genetic Resources : Constraints Lack of accurate Accession data on records of ex-situ introduction of exotic and native species Absence of evidence on Genetic Origin/Wild Ancestries of domesticated or cultivated species

ABS REGIME: LMMC STRATEGIES Collaborative Research Absence of Uniform Policy and Standards for ABS between Developed and Developing countries The taxonomic impediments Lack of biotechnological and human resource capabilities among LMMC

ABS STRATEGY: CONCERTED ACTIONS REQUIRED BY LMMC Enactment and Harmonization of National Legislations on ABS by all LMMC members. Capacity building at country level in terms of: -  Easily understood definitions  Completion of Steps of PIC, MTA and MAT  Building resources inventories under different property regimes

ABS STRATEGY: CONCERTED ACTIONS REQUIRED BY LMMC Assistance to Member Countries in determination of Sovereign Rights for Endemic Bioresources. Design of Contractual Agreements for ABS keeping in view of : -  Nature of Resources  Type of Access  Information asymmetry  Contingent Plans for changes ex-post, opportunistic behavior and so on

ABS STRATEGY: CONCERTED ACTIONS REQUIRED BY LMMC Preparation of national biological or genetic resources inventories/checklists and Passport Data on: Indigenous biological/genetic resources Exotic biological/genetic resources Naturalized/invasive weedy taxa Accession Records & Registers for Indigenous and Exotic Collections in ex situ Repositories Traditional Knowledge Libraries (e.g. TKDL initiative in India)