Prof. Dr. Peter-Tobias Stoll Institute for International Law and European Law

1. Prof. Dr. Peter-Tobias Stoll • Institute for International Law and European Law • Department for International Economic and Environmental Law • pstoll@gwdg.de • +49 551 39 4661 /4662 • Platz der Göttinger Sieben, 5 * D-37073 Göttingen * Germany

2. University of Bremen / FEUInternational Workshop on ABS, tK and BSUndoing the Knot in A & BS Transactions: In Search of Amicable Solutions The EU Approach Towards an ABS Regime in an International Law Perspective

3. Overview 1. EU Position 2. Reflection: Common Ground / Concepts

4. EU Position a. Elements: - Intl Access Standards - User Measures - Link b. What's New?

5. Source: Letter to the CBD Executive Secretary, 28.11.2007

6. International Standards on National Access Law and Practice • Guidance on national access legislation, ... model legislation ...; • Essential procedural and substantive elements ... need be reflected in national access frameworks ... This should include 1. specific rules on PIC requirements ... ; 2. clear legal status and rules on ... acquisition of genetic resources ...; 3. availability and accessibility of information on how to obtain PIC; 4. limitations on time and costs for obtaining PIC decisions; 5. existence of a procedure for simplified access for non-commercial research. • ... notify up-to-date information .... Clearing House ... • ... national access rule apply in a non-discriminatory way.

7. Support of Compliance • Mandatory disclosure requirement in patent applications • International definition of misappropriation of genetic resources • Unilateral declarations by users • Internationally recognised certificate of compliance • Promoting and building on ABS-related codes of conduct • Engaging with public research funding agencies • Integrationg TK in ABS Regime

8. Common Ground / Concepts • Genetic Resources – the CBD approach 1.) The rationale of sovereign resource rights 2.) Benefit-sharing – a higher level of fairness and cooperation 3.) A long story of appropriations - a tragedy of the commons? 4.) Symbolic rules – real conflicts

9. 1.) The rationale of sovereign resource rights • Critically incomplete • mismatch: control of substance / value in information • structural control deficits: • movements of material difficult to monitor • capture of results of uncertain and long-lasting r&d + commercialization • legal deficit: no acknowledgement of sovereign title in other jurisdictions and scracely any obligation to that effect • Sovereign Right • Preexisting ... • In the way defined, GR form part of sovereignty over resources • the CBD did only clarify • A justification in itself – not an environmental instrumentality

10. 2.) Benefit-sharing – a higher level of fairness and cooperation • Distinctively higher level of justice, fairness and cooperation • „fair and equitable“, BS obligations • Accomodating N+S interests • sovereign right-> • <- facilitation of access • BS -> • Two levels – two sorts of justice • CBD intergovernmental relations • iustitia distributiva: „social“ justice in social systems • Individual use transactions • iustitia commutativa: justice of exchanges in private agreements

11. 3.) A long story of appropriations - a tragedy of the commons? The FAO Undertaking as a forerunner 1983 common heritage of mankind 1989 recognition of plant breeder's rights Farmer's Rights 1991 Protection of breeding lines State sovereign rights on genetic resources The CBD 1992 (general) sovereign right on GR,facilitation,BS The TRIPS and the patent system 1995 Multilateral and enforceable standards for IP at the level of industrialized countries. 2000 et seq. Tendency to extend patent protection

12. 3.) A long story of appropriations - a tragedy of the commons? • we often neglect, that the CBD is a step in a development of assigning proprietary rights to biotechnology • this development reflects North and South claims to biotechnology and its benefits and is an issue of justice • this is problem, because proprietary rights a not well suited to do justice. • ideally, other means of (re-) distribution should be chosen • equity / efficiency tradeoff

13. 4.) Symbolic rules – real conflicts • cases, where a legislation • the functional, legal-technical effect and impact of which is questionable • in reality aims at sending a message to society / political structures • may be the case with the CBD (?)‏ • but the entitlements and the conflict is there • have to be solved in some

14. Defining transactions on use of GR and TK • high level of fairness and cooperation • accomodating interests of N and S • two levels of transactions (interstate/private transactions) – two forms of justice

15. Genetic Resources – the CBD approach The rationale of sovereign resource rights • Sovereign Entitlement in Genetic resources • Sovereignty – territorial sovereignty – sovereignty over natural resources • biological and genetic resources covered in the form defined in the CBD e.g. as material => CBD does not cover the information => The system of legal control rests on the material as a sort of the substantive carrier, while the value is in the information, which is a public good

16. Genetic Resources – the CBD approach • The Rationale of Sovereign Resource Rights • Resource states have a right to dispose upon the resources and to rule upon related transactions • Genetic resources are unique as their „price“ is mainly linked to possible commercialization resulting from further value-adding with high uncertainties on a longer time scale taking typically place in other jurisdictions • The (transborder) movement of genetic resources (e.g. material“) is difficult to control for a resource State • Under international law, third States have no obligation to honor, to recognize and to enforce a foreign sovereign entitlement in resources (with private property titles, it might be different)‏

17. Genetic Resources – the CBD approach • Benefit-sharing – a Higher Level of Fairness

18. Genetic Resources – the CBD approach • Symbolic rules – real problems