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Legal implications of CBD and ABS

The CBD is not itself a binding law, and it does not have any enforcement mechanisms. What it does is place responsibility for regulating access to genetic resources in the hands of the nations providing those resources. So, aside from the fact that the US is not a party to the CBD, the CBD itself cannot require any US public garden to do anything.

ABS is turning out to be complicated (to say the least) and is still a work in progress. Individual nations have created their own laws governing access to genetic resources, and those nations have the right to enforce their laws in whatever way they have chosen. Some nations have a strong national authority (e.g., India) and give little say to local communities. Others, such as the Philippines, have given more say to indigenous peoples. Costa Rica requires consent from both local interests and a national authority. Few African nations have created ABS laws - Ethiopia didn't create a law until 2006. Critics of these things have suggested that some developing nations' ABS laws are not well-thought-out, and researchers have complained that ABS procedures can be so idiosyncratic and onerous as to make field collection hardly worth the trouble.

One problem that some scientists have identified with many national ABS regimes is that the laws seem focused on incredibly lucrative bioprospecting that results in multi-gazillion dollar drugs - not on, say, modest seed exchanges between gardens in two different nations. The Nagoya Protocol, which was just added to the CBD and hasn't exactly been ratified, is intended to solve some of these problems by simplifying access to genetic resources for non-commercial use and by creating an ABS clearing-house to share ABS information among countries. This protocol also encourages the sharing of technology, which could be one of the "benefits" in exchange for access.

So to sum up this quick note: ABS is different for every nation. A garden that wants to work with a particular nation will have to follow that nation's ABS laws, which will involve finding out what those laws are, figuring out which national/regional/local authorities need to grant permits, and possibly negotiating an agreement with the local area where the genetic resources are found. There is no standardization.

Within the U.S., individual gardens have started adopting their own ABS provisions, in a sense binding themselves to the CBD as institutions. As a practical matter, any U.S. garden that collaborates with gardens in other nations is effectively part of the CBD community. Building trust and sharing information and resources are essential to global plant conservation anyway - selfishness is counterproductive.

Submitted by 2 years ago

Comments [3]

  1. It should be recognized that there are APGA members outside of the USA. Canada is a full participant in the CBD. What hasn't happened in Canada yet is that we have not yet ratified the binding treaty on ABS, the Nagoya Protocol to the CBD. We should be focusing on promiting an understanding of what's in the Nagoyal Protocol, which is rapidly gaining signatures around the world.

    2 years ago
  2. I should also add that people should realize that this is not a new issue. Shortly after the CBD became international law in 1993 people started to try to work out the ABS implications. Royal Botanic Gardens Kew in the UK organized a four-year project to come up with robust policies about ABS issues, between 1997 and 2001. There have been several tries at setting up a system, or "ABS regime," that could be accepted as fair and equitable around the world. Nagoya is now the way forward. Whether or not a particular country has ratified the CBD or the protocol, the rest of the world is working on implementing it; you've got to know what your colleagues in other countries are expecting.

    2 years ago
  3. Regarding Africa and the lack of ABS laws there so far - probably more than any other region, African countries have been waiting for the Nagoya Protocol to happen so that they can use it as a very direct basis for their laws. So watch this space... the NP's effectiveness will very much depend on countries making serious efforts to set up and maintain their focal points and competent authorities and work out how to communicate with local communities so there are a lot of challenges ahead, but new laws will pop up relatively fast.

    2 years ago

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