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Some history and context regarding the CBD and ABS

It is very helpful to understand the broader context of why we have ended up in this situation with regard to the CBD, ABS, Nagoya, ITPGRFA, et al. Sabrina Safrin, an international lawyer who participated in the negotiations for the "International Treaty on Plant Genetic Resources for Food and Agriculture" (ITPGRFA) and presented a very well-received talk in a symposium at the 2008 APGA meeting, wrote an excellent award-winning article about the situation:

"Hyperownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life"

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=658421

Submitted by Chad Husby 1 year ago

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  1. Moderator

    Thanks for citing this article. It provides one of the clearest explanations of how expansive patent laws regarding genetic resources are conflicting with the CBD's sovereign-based system of genetic material ownership. Has Safrin published an update since the Nagoya Protocol in 2010? It seems to address some of the points she raised.

    1 year ago
  2. See Ni, Kuei-Jung. 2009. “Legal Aspects of Prior Informed Consent on Access to Genetic Resources: An Analysis of Global Lawmaking and Local Implementation Toward an Optimal Normative Construction.” Vanderbilt Journal of Transnational Law 42: 227

    Prior to the adoption of the CBD, some scholars wanted to put genetic resources under international control to prevent resources from being dominated by sovereign nations. The thinking was that genetic resources are the common heritage of mankind and should therefore be available to all, not locked up in national legal regimes. The CBD took exactly the opposite approach, giving sovereign nations the right to monopolize the genetic resources that arise within their borders, and this approach has now taken on the form of customary international law. There is no consistent pattern of prior informed consent, and various nations have taken very different approaches to implementing ABS requirements.

    Prior informed consent (PIC) comes from the medical principal that patients should agree to treatment after physicians disclose all relevant information, including all costs and benefits. PIC has been incorporated into international environmental law and the CBD, which requires that access to genetic resources be subject to prior informed consent of the party providing such resources. But the CBD does not address such issues as who is entitled to consent to access to genetic resources, the scope of the consent, and rights and obligations of those using and providing genetic resources. The CBD and the Bonn Guidelines both grant authority to enforce ABS to nations providing genetic resources.

    1 year ago