The quest for ‘legal certainty’ in ABS is beginning to loom large in the eyes of lawyers, legislators and business, as the ‘ABS negotiations’ continue. The legal/legislative/commercial challenge is, in many ways, even more daunting than the Herculean task facing the Working Groups’s Co-chairs and delegates on the difficult road to political agreement on the “nature and elements” of the ABS regime.
No matter what the resulting political agreement says, the legal challenge will be the same — to find a way to convert the rhetoric into an unambiguous, predictable/replicable system of legal rights and processes, which meets the reasonable legal needs and expectations of all sides of the ABS negotiations. Only if all potential users, providers, middlemen and other ABS actors are subject to the same rules can the ABS system be fair and avoid creating perverse incentives and inequities, especially for those businesses which are attempting to meet their equitable and social obligations.
To enable the legal and business communities to meet that challenge, the WG-ABS’s policy-makers need an unbiased understanding about the legal options and obstacles that currently are obstructing the functionality of the ABS system.
In WG-ABS-5, four in-depth legal analyses were presented seeking to enhance understanding regarding the tools which the international negotiations can adopt that will help legislators, administrators, lawyers and others to create an internationally integrated, functional ABS system.
Administrative and judicial remedies for claims of ABS violation or misappropriation of genetic resources — One of the greatest misunderstandings in current ABS discussions is the idea that ‘ABS Contracts’ are the only legal instruments necessary to protect the rights of providers and source countries under Article 15. This paper, prepared through a collaboration between IUCN-Canada and the CBD Secretariat, examines the existing laws available to protect or provide remedy to providers, source countries and others, when ABS contracts are violated, or when the user does not obtain permission as required under ABS law (1).
The challenge of ‘Access’ — ABS is often described as two elements — access and benefit-sharing. Presenting a new book entitled Addressing the Problems of Access: Protecting Sources, While Giving Users Certainty, by Jorge Cabrera and Cristian Lopéz, this event noted that in ABS contract negotiations, representatives of source countries and communities are attempting to uphold a fiduciary responsibility to their citizens, which may prevent them from the ‘streamlining’, so strongly desired by commercial and research users of genetic resources, especially where there is no law in the user country that would compel users to comply after they have removed the resources.
The challenges ‘Beyond Access’ — examining the role of user countries in ensuring that the ABS system is functional — Presenting a new book entitled Beyond Access: Exploring Implementation of the Fair and Equitable Sharing Commitment in the CBD, (Morten Walløe Tvedt and Tomme Rosanne Young), this event highlighted the fact that all countries are ‘user countries’ and none has adopted the range of ‘user-measures’ required under Article 15.7. The practical elements of tracking, monitoring and documenting the movement of genetic resources and related rights —Focused on the implementation tool that has been most directly discussed within the CBD, this presentation introduced a book containing 6 key legal, economic and practical perspectives regarding the nature of the need for systems that enable tracking, monitoring and certifying genetic resources: A Moving Target: Genetic Resources and Options for Tracking and Monitoring their International Flows, edited by Manuel Ruiz and Isabel Lapeña (2).
To date, many in the commercial, industrial and research sectors continue to hope that ABS will ‘just go away’ or will remain in its current ‘limbo’ state of uncertainty. Others, however, have come to realise that the only way in which the ABS system will be fair and will reflect their interest is through participating and supporting the creation of a balanced and functional system that applies to all users and all providers in an equitable and reasonable manner. To do this, the regime must do more than adopt a political agreement — it must adopt a legally implementable political agreement.
Tomme Young is an independent consultant on international environmental law and policy.
(1)
UNEP/CBD/WGABS/5/INF/3 (2) The three books described are part of a series of five books being produced by the IUCN Environmental Law Centre (available
here). The paper on Administrative and Judicial Remedies will be included in Book 5 of that series, which will be launched in January 2008, on the occasion of WG-ABS-6.
