ABS provisions at the national level

A number of the norms proposed for the international regime are framework provisions that need implementation at national level for both provider and user countries. Not only do national law and policy need to be consistent with the international regime, but many national provisions are specifications of the international regime, tailored to a country’s individual situation and needs. Some national provisions may derive “naturally” from the international regime, i.e. they will be easy to translate to the national situation. Others will have to be adapted by the legislative process. As situations in countries vary widely, specific national provisions cannot be proposed in an international study. Instead, this section highlights norms that need some general consideration before the legislative and policy-making process begins.

As the focus of this study is on poverty and biodiversity, the emphasis is on regulations that are particularly relevant to poverty alleviation. General provisions for a national ABS regime concerning such aspects as scope, a national focal point, competent authorities, the involvement of national research institutions, penalties for illegal access, etc. derive directly from the provisions proposed above for the international regime or have been widely discussed.⁶³ It is understood that they will be taken up by national policy-makers and legislators as obvious elements of an ABS regime.

For the focus on poverty and genetic resources two types of actor are of particular relevance:

communities living in areas where genetic/biological resources could be cultivated or harvested, and holders of traditional knowledge associated with genetic or biological resources. These actors may be identical, but do not need to be (e.g. in INBio parataxonomists do not have traditional knowledge, in Hoodia they do; in Kava some do, others do not). If both actors are to be strengthened, the national benefit-sharing regime needs to ensure that their knowledge is valued and legally safeguarded and their appropriate participation in ABS is secured. As we can see from Kava, both provider and user countries need to play equal parts in ensuring benefit-sharing for local actors. Two main issues have to be taken into account if benefit-sharing as a means for poverty alleviation is to be achieved: the involvement (and rights) of the holders of traditional knowledge must be ensured, and provision must be made in the benefit-sharing regime for the alleviation of the poverty of the local population to be one of the criteria for the benefits to be agreed.

4.5.1 Provider situation

There are several ways an ABS regime can be established at national level. For provider situations, Glowka⁶⁴ identifies five types of legislation: (1) provisions contained in general environmental framework laws, but they are only enabling in nature and thus not entirely appropriate for provisions on substance as proposed above; (2) framework laws on sustainable development, nature conservation or biodiversity which are more detailed than framework enabling environmental legislation; (3) dedicated or stand-alone national laws or decrees on ABS. These are the most comprehensive types of legislation for ABS; (4) modification of existing laws/regulations; (5) action taken at regional level. An analysis of how best to translate the international regime into national law should obviously precede national legislation. This should include the consideration of benefit-sharing needs with a view to alleviating poverty.

National ABS policy and law cannot prescribe benefit-sharing since the latter is the outcome of negotiations between the parties to the ABS. However, they might suggest certain benefits and call on the competent authority to inform local and indigenous communities

63 See, for example, the Bonn Guidelines; Glowka (1998); ten Kate/Laird (1999), p. 17; Henne (1998).

64 See Glowka (1998), p.23.

comprehensively of the pros and cons of certain types of benefit. National policy and law can do a great deal to help ensure that benefits contribute to poverty alleviation. Such benefits are, for example:

(1) Monetary benefits for local and indigenous communities:

a. advance payments allocated to local and indigenous communities (e.g. via a trust fund)

b. contributions to the local economy – creation of income opportunities through the cultivation or processing of the resource

c. protection of local applications of IPR

d. payments accompanying valorization (“milestone fees”), deposited in a fund e. free access of population in the case of product development (e.g. medicines) f. providing markets in user country

(2) Non-monetary benefits

a. research directed at local priority needs

b. participation in decision-making (political empowerment) and negotiation c. self-administration of the fund

d. recognition of value of traditional knowledge – marketing with approval of knowledge holder on an international scale

4.5.2 User situation

The task of user countries/countries with users under their jurisdiction is twofold: firstly, to encourage genetic resource users under their jurisdiction to focus benefit-sharing on poverty alleviation and the creation of sustainable income opportunities in the provider country in a way that targets poverty alleviation. This cannot be achieved through legislative measures but should be done by offering the users incentives, e.g. through support for public-private partnerships; secondly, to ensure that benefit-sharing regimes in provider countries are respected by entities under their jurisdiction and that ABS agreements are negotiated and complied with. The international regime proposed above requires the introduction of a number of measures. They will need to be complemented by awareness raising and the education of potential users under the country’s jurisdiction.