Access to Genetic Resources
Regional organizations and national legislatures are
beginning to respond to recent changes in international
law concerning access to genetic resources and the
sharing of benefits deriving from that access. The
International Undertaking of 1983 had established that
"plant genetic resources are a heritage of mankind to be
preserved, and to be freely available for use, for the
benefit of present and future generations." The
Convention on Biological Diversity (CBD) significantly
changes the rules relating to control of genetic
resources. Article 15 of the CBD affirms a State's
sovereign rights over its genetic resources and its
ability to regulate access to genetic resources. Parties
to the CBD, however, must also facilitate access to
genetic resources for environmentally sound purposes,
subject to mutually agreed terms, and prior informed
consent. Any national legislation must not run counter to
the objectives of the CBD. The Parties also must fairly
and equitably share the results of research and
development and the benefits arising from commercial and
other use of genetic resources with the Party providing
such resources. By creating these rules relating to
access to genetic resources, the CBD seeks to conserve
biological diversity, sustainably use its components, and
share fairly and equitably the benefits arising from the
use of genetic resources.
Although it has revamped the legal regime relating to
genetic resources, the CBD fails to address several
important issues. Of particular importance for the
exchange and use of plant genetic resources for food and
agriculture (PGRFA), it fails to address ex situ
collections acquired before entry into force of the CBD.
In addition, it fails to specify the mechanisms for prior
informed consent of those who provided the genetic
material.
As a result, lawyers and activists around the world
are working to clarify these and other issues. In many
countries, the primary issue relates to "theft" of
genetic resources. For example, many believe that the use
of genetic resources by researchers and agricultural
pharmaceutical companies without the consent of those who
developed the genetic material over generations
constitutes "biopiracy." They also argue that those who
produce new agricultural products and pharmaceuticals
should provide compensation to those who helped develop
the genetic material. This is rarely done.
In addition, ex situ centers around the
world, including the International Agricultural Research
Centers within the Consultative Group on International
Agricultural Research (CGIAR centers), possess vast
collections of germplasm held "in trust for the
international community." The extent to which the CGIAR
centers and their ex situ collections are
affected by the CBD directly depends on a country's
legislation to implement the access and benefit sharing
provisions of the CBD. In 1999, IELP prepared a study on
behalf of the CGIAR centers, The
Impact of Access Legislation on the Conservation,
Exchange and Use of Plant Genetic Resources for Food and
Agriculture: A Review of Access and Benefit Sharing
Provisions (May 28,
1999).
The paper assesses the impact on the CGIAR centers of
enacted and draft laws that regulate access to genetic
resources and which also seek to protect the traditional
knowledge of indigenous peoples and traditional farmers.
While no generalized conclusions can be made due to the
differences in national legislation, the paper concludes
that the laws (or draft laws) of some countries impose
significant hurdles to the collection and use of genetic
resources for agricultural purposes by CGIAR centers.
Project Resources
Africa
Organization of African Unity (Draft)
Australia
State of Western Australia, Conservation and Land Management Act
Andean Pact
Decision 391, Common System on Access to Genetic Resources (English)
Decision 391, Regimen Comun sobre Acceso a los Recursos Geneticos
Bolivia
Supreme Decree No. 24676, Regulation of Decision 391 on the Common Regime for Access to Genetic Resources (English)
Decreto Supremo No. 24676, Reglamento de la Decision 391 Regimen Comum de Acceso a los Recursos Geneticos (Spanish)
Brazil
Federal Bill of Law No. 306/95 (Draft), Access to Genetic Resources (English)
State of Acre (Brazil), Acesso a Recursos Geneticos Lei Estudual No. 1235 (Portuguese)
State of Amapá Brazil), Lei No. 0388/97 (Portuguese)
State of Amapá(Brazil), Lei No. 0388/97 (English)
Costa Rica
The Biodiversity Law No. 7788 (relevant provisions, unofficial English translation)
Ley de Biodiversidad, No. 7788 (Spanish)
Peru
Law No. 26839, Law on the Conservation and Sustainable Use of Biological Diversity (English)
Ley No. 26839, Ley sobre la Conservación y Aprovechamiento Sostenible de la Diversidad Biológica (Spanish)
Bill to Regulate Access to Genetic Resources (English)
Proyecto de sobre Acceso a los Recursos Geneticos (Spanish)
Philippines
Executive Order No. 247
Department Administrative Order No. 96-20, Implementing Rules and Regulations on the Prospecting of Biological and Genetic Resources
United States of America
Regulations of the National Park Service of Department of the Interior, relating to Parks, Forests, and Public Property (36 CFR § 2.5)
Other Laws
Draft Model Law: Collectors of Biological Resources (Control and Licensing) Act, prepared by Gurdial Singh Nijar
Draft Model Law on Community Rights and Access to Biological Resources, prepared by Gurdial Singh Nijar
General Resources
CGIAR Home Page
Commission on Genetic Resources for Food and Agriculture (forum to discuss and negotiate matters relevant to genetic resources for food and agriculture)
International Plant Genetic Resources (IPGRI) (a research institute for the conservation and use of genetic resources)
WIPO Administered Treaties (a United Nations agency developed to protect intellectual property worldwide)
|
