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P. Pushpangadan & K. Narayanan Nair National Botanical Research Institute

ACCESS TO BIOLOGICAL RESOURCES AND ASSOCIATED TRADITIONAL KNOWLEDGE. P. Pushpangadan & K. Narayanan Nair National Botanical Research Institute (Council of Scientific & Industrial Research) Lucknow – 226 001, India. ABS : International Policy and Legal Frameworks.

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P. Pushpangadan & K. Narayanan Nair National Botanical Research Institute

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  1. ACCESS TO BIOLOGICAL RESOURCES AND ASSOCIATED TRADITIONAL KNOWLEDGE P. Pushpangadan & K. Narayanan Nair National Botanical Research Institute (Council of Scientific & Industrial Research) Lucknow – 226 001, India

  2. ABS : International Policy and Legal Frameworks • Convention on Biological Diversity (CBD 1992) • WTO – Trade Related Intellectual Property Rights (TRIPS 1995) • WIPO – Inter Governmental Committee on Genetic Resources, TK and Folklore (2000)

  3. ABS : International Policy and Legal Frameworks • FAO – International Treaty on Plant Genetic Resources for Food and Agriculture (2001) • Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising our of their Utilization (2001)

  4. ABS : Like-Minded Megadiverse Countries(LMMC) • Cancun Declaration (February 2002) • Cusco Declaration on Access to Genetic Resources, TK and IPR(November 2002) • Kuala Lumpur Communiqué on Institutional Building (July 2003)

  5. DEVELOPING AN ABS REGIME : KEY PRINCIPLES • National Sovereignty • Conservation, Sustainable use of biological resources & associated TK • Equitable Benefit Sharing • Technological, Economic & Socio-cultural development

  6. DEVELOPING AN ABS REGIME : KEY ELEMENTS • Prior Informed Consent (PIC) • Mutually Agreed Terms (MAT) • Material Transfer Agreements (MTA) • Equitable Benefit Sharing • Monetary Benefits • Non–Monetary Benefits

  7. ABS ISSUES • Inequities in existing legal and policy frameworks on ABS • Prior Informed Consent: Authority??? • National Government • Indigenous and local communities Contd…

  8. ABS ISSUES • Protection of Traditional Knowledge and Traditional Resources Rights • Appropriate national legislations on ABS

  9. ABS ISSUES • Lack of uniform definitions of terms involved in ABS • Stakeholder • Ex-situ collection • Voluntary nature • Derivatives • Access • Genetic resources • Commercialization • Provider • User

  10. ABS ISSUES • Capacity Building • Lack of adequate infrastructure and human resources capabilities in biodiversity, biotechnology, bioprospecting, biodiversity legislations.

  11. ABS ISSUES • Disproportionate distribution of biodiversity and biotechnology in North and South

  12. ABS ISSUES • Absence of statutory national mechanism for benefit – sharing

  13. ABS ISSUES • CBD Vs. TRIPs • TRIPs Article 27.3(b) • Proof of : • Origin of Biological/Genetic Resources & TK • PIC for Access • Benefit Sharing Arrangements Doha Declaration, 2001

  14. ABS ISSUES • Access to Biological/Genetic Resources from ex-situ collections • Geographic/Centre of Origin of Genetic Resources

  15. ABS ISSUES • Access to Biological/Genetic Resources from ex-situ collections • Access Norms for: • Pre-CBD materials • Post-CBD materials • ITPGR listed plants

  16. ABS REGIME: LMMC STRATEGIES • Benefit Sharing • Uniform formula for Benefit-sharing is impractical • Monetary Benefit Should consider • Capital Investments • S&T, Human Resources and Intellectual Inputs • Opportunistic behaviour & Market Trends

  17. ABS REGIME: LMMC STRATEGIES • Benefit Sharing involving more than two Countries of Origin • Option 1 • Obtaining PIC from respective stakeholder countries • Negotiation of MATs for use of Genetic Resources & TK • Assessment of Benefits • Apportionment of Benefits Among Stakeholders as per contributions and as agreed upon in MATs

  18. ABS REGIME: LMMC STRATEGIES • Benefit Sharing involving more than two Countries of Origin • Option 2 • Creation of LMMC Biodiversity Fund • Part of Benefits • Entire Benefits

  19. ABS REGIME: LMMC STRATEGIES • Development of Uniform Model of MTA to ensure: • Sovereign Rights • Statutory Rights • Legal Rights • Customary Rights, if any, of participants/stakeholders

  20. ABS REGIME: LMMC STRATEGIES • Enactment of National ABS Laws: • 40 CBD Parties enacted/in the process of enactment Contd….

  21. ABS REGIME: LMMC STRATEGIES • Enactment of National ABS Laws: • ABS laws(National/Regional) developed by LMMC • Organization of African Unity (2000) • Peru (2002) • Philippines (1996) • South Africa (2004) • Venezuela (1999) • Andean Community Decision 391 (1996) • ASEAN (1996) • Bolivia (1997) • Brazil (2001) • Costa Rica (2003)

  22. ABS REGIME: LMMC STRATEGIES • Claims of Country of Origin vis a vis Country Providing Genetic Resources : • Parties to Claim All Legal Rights on All Benefits from the use of Genetic Resources & TK by Third Parties • MTAs and MATs should include such legitimate claims and rights

  23. ABS REGIME: LMMC STRATEGIES • Claims of Country of Origin vis a vis Country Providing Genetic Resources : Constraints • Proof of Country of Origin/Centre of Origin of exotic species in ex-situ depositories • Determination of Ownership and authority of PIC on Pre-CBD ex-situ collections Contd….

  24. ABS REGIME: LMMC STRATEGIES • Claims of Country of Origin vis a vis Country Providing Genetic Resources : Constraints • Lack of accurate Accession data on records of ex-situ introduction of exotic and native species • Absence of evidence on Genetic Origin/Wild Ancestries of domesticated or cultivated species

  25. ABS REGIME: LMMC STRATEGIES • Collaborative Research • Absence of Uniform Policy and Standards for ABS between Developed and Developing countries • The taxonomic impediments • Lack of biotechnological and human resource capabilities among LMMC

  26. ABS STRATEGY: CONCERTED ACTIONS REQUIRED BY LMMC • Enactment and Harmonization of National Legislations on ABS by all LMMC members. • Capacity building at country level in terms of: - • Easily understood definitions • Completion of Steps of PIC, MTA and MAT • Building resources inventories under different property regimes

  27. ABS STRATEGY: CONCERTED ACTIONS REQUIRED BY LMMC • Assistance to Member Countries in determination of Sovereign Rights for Endemic Bioresources. • Design of Contractual Agreements for ABS keeping in view of : - • Nature of Resources • Type of Access • Information asymmetry • Contingent Plans for changes ex-post, opportunistic behavior and so on

  28. ABS STRATEGY: CONCERTED ACTIONS REQUIRED BY LMMC • Preparation of national biological or genetic resources inventories/checklists and Passport Data on: • Indigenous biological/genetic resources • Exotic biological/genetic resources • Naturalized/invasive weedy taxa • Accession Records & Registers for Indigenous and Exotic Collections in ex situ Repositories • Traditional Knowledge Libraries (e.g. TKDL initiative in India)

  29. T H A N K Y O U

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