What is ABS?
ABS stands for Access and Benefit Sharing. It is a short description of a long process involving the collection of components of biological diversity (also biodiversity) for their use in research and development (R&D). This kind of use goes beyond the normal appropriation of biodiversity for trade as commodities e.g. for fuel, food or ornamental use; it targets its genetic properties. Therefore, the subject of ABS deals with how access to biodiversity for utilisation of its genetic properties should be regulated as well as benefits arising from such utilisation shared.
ABS is regulated by one of the multilateral environmental agreements (MEAs) known as the Convention on Biological Diversity of 1992 with a membership of 196 state parties (www.cbd.int). The Convention on Biological Diversity commonly referred to in short as CBD has three objectives: conservation of biological diversity; sustainable use of its components (i.e. components of biodiversity); and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources (Art. 1 CBD). “Genetic resources” are defined under Article 2 as ‘…genetic material of actual or potential value’ and "genetic material" as ‘… any material of plant, animal, microbial or other origin containing functional units of heredity.’
The uniqueness of the Convention –being an MEA– consists of its innovative approach of integrating environmental concerns under the first two objectives and social-economic concerns under the third. The three objectives, however, are supportive of one another. The rationale behind the third objective is mainly twofold: ensure equity in the exchange of genetic resources and generate funds for conservation and sustainable use activities. However, a third aspect is equally important: to create an incentive to conserve genetic resources. It has been argued that countries that host such resources and communities that are custodians of wild and domesticated biological diversity will have a greater incentive to conserve biological diversity and ensure its sustainable use if an economic incentive in the form of benefits from the use of genetic resources (GR) and traditional knowledge associated with such resources is shared with them.
Following these considerations, the initial public domain access based on the concept that genetic resources were a common good of mankind was abrogated. Reaffirming the sovereign rights of states over their natural resources, the CBD in Article 15 acknowledged the authority of states to regulate access to GR in accordance with national law and to share in benefits that accrue from the utilisation of such resources. In implication, access to genetic resources is subject to the so-called prior informed consent (PIC) of the party providing it. In addition, such access and the utilisation of accessed GR must take place according to the terms agreed upon in a bilateral relationship between the provider and user of such resources. Such terms are referred to as mutually agreed terms (MAT). The sharing of benefits will likewise take place according to MAT. In order to ensure that the laws of the provider country are complied with in the user country by those utilising GR, countries where such utilisation takes place are obliged to establish compliance measures (Art. 15 CBD). Such utilisation might also involve traditional knowledge of indigenous and local communities that is associated to genetic resources (ATK) according to Article 8j CBD. As a subject, ABS hence looks at how the third objective can be achieved not forgetting how it should be organised to impact positively on the other two objectives.
In order to operationalise the third objective, the parties to the CBD adopted a binding instrument to the Convention in 2010 known as the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (www.cbd.int). The Protocol contains obligations for providers and users that parties must implement domestically. It entered into force in October 2014. As at January 29, 2019 the Nagoya Protocol (NP) has been ratified by 113 state parties and the European Union (www.cbd.int). For more information about ABS see:
- Factsheets and briefs: here
- Short videos: here
- CBD text: here
- Nagoya Protocol and decision booklets: here
- An explanatory guide to the Nagoya Protocol on access and benefit sharing: here
ABS research at FEU
The Research Center for European Environmental Law (FEU) at the University of Bremen has been conducting research on this subject for almost the last 15 years and has become an important think tank in ABS issues. To this effect several projects have been conducted by different interdisciplinary teams of experts under the supervision and coordination of Prof. Gerd Winter and Dr. Evanson Chege Kamau. All ABS projects so far have been funded by the German Research Foundation (DFG). The major research activities fall under 4 projects up-to-date. The questions and issues that have been examined and concluded can be divided into three main themes:
1) Implementation of the ABS obligations by the first generation legislations: outcome and challenges flawing effective and efficient implementation.
This question and related issues were examined under a project entitled “Law and practice in access to genetic resources and benefit sharing with the example of Kenya, Brazil and Germany” (2006-2009). For more information and summary of results see report here.
2) Common pools as an alternative approach to bilateralism
This question and related issues were examined under a project entitled “Common pools of genetic resources” (2010-2013). For more information and summary of results see report here.
3) Research and development on genetic resources for non-commercial purposes (2013-2015) and development of model access clauses for ABS (intermittently and with subsequent revisions and updates, 2009-2016)
This question and related issues were examined under a project entitled “Access to geneticresources for basic biodiversity research and benefit sharing”. For more information and summary of results see report here and here.
The results of concluded research have been published in a number of books and articles (see below). These results have been critical to international and national processes, including negotiations, legislation development and implementation and capacity building. In addition, they are an important source of knowledge in an area which lacks well-structured research.
- (2015) Research and Development on Genetic Resources. Public Domain Approaches in Implementing the Nagoya Protocol, Earthscan-Routledge, London (ISBN 9781138743601)
- (2013) Common Pools of Genetic Resources. Equity and Innovation in International Biodiversity Law, Earthscan-Routledge, London (ISBN 9780415537674)
- (2009) Genetic Resources, Traditional Knowledge and the Law. Solutions for Access and Benefit Sharing, Earthscan, London (ISBN 978-1844077939)
- (2013) An introduction to the international ABS regime and a comment on its transposition by the EU: here
- (2011) Von Biopiraterie zu Austausch und Kooperation. Das Protokoll von Nagoya über Zugang zu genetischen Ressourcen und gerechten Vorteilsausgleich, Archiv des Völkerrechts, Vol. 49, Number 4, Mohr Siebeck, pp373–398
- (2011) Common pools of genetic resources – a potential approach in resolving inefficiency and injustice in ABS: here
- (2010) The Nagoya Protocol on access to genetic resources and benefit sharing: What is new and what are the implications for provider and user countries and the scientific community? here
- (2010) The CBD and traditional Kenyan (African) healer: Myths and reality: here
- (2009) Facilitating or restraining access to genetic resources? Procedural dimensions in Kenya: here
The FEU ABS team has also contributed to external processes involving ABS through consultancies and/or direct involvement. For example, it contributed to the development of the IUCN Explanatory Guide on the Nagoya Protocol (see here) and ABS model clauses for access to genetic resources and benefit sharing for MicroB3 of which a commentated copy is available in the book of 2015 on R&D on GR, and for researchers applying for research grants from DFG (yet to be published). An advanced version of the later is available online (see here). In partnership with the University of Göttingen (Prof. Peter-Tobias Stoll), it also developed the new guidelines for researchers applying for research grants from the DFG for research undertakings based on GR and associated traditional knowledge (yet to be published).
The FEU team has also been involved in many consultancies in regard to the development of legal and institutional frameworks on ABS e.g. in south Caucasus states of Georgia, Armenia and Azerbaijan, Kenya, Asian region, at the level of the African Union, FAO and in advising on regulation of marine genetic resources beyond national jurisdictions under the UNCLOS process. It has also consulted for private companies, researchers’ networks and institutions and individual researchers. Affiliation in relevant expert groups such as IUCN WCEL, IUCN JSG-ABS, DFG WG-ABS, SCBD-IDLO etc. has also been a vital channel for the FEU ABS team to exert influence on relevant processes based on its research outcomes.
FEU is currently conducting a new ABS project titled "New ABS legislation and practice and compliance with the Nagoya Protocol" that is planned to run for an initial duration of 3 years from February 2017. The new project is also funded by the DFG. It is dedicated to the implementation of the access and benefit-sharing rules of the NP in view of selected newly arisen and unresolved issues. These issues include, inter alia:
- Definition of "genetic resources" and the ensuing challenges of regulating downstream results of R&D.
- Definition of "utilization" and the question of what it really consists of, which uses are considered as utilization, when utilization should be considered as having started or ended.
- Compliance in regard to non-commercial research.
- Compliance in regard to further R&D on research results (data and information) in public domain.
- Compliance in regard to materials supplied by intermediaries (especially informal entities). This question touches on the issue of bulk commodities (i.e. biological resources initially acquired for non R&D purposes when used in R&D).
- Checking compliance (How should it be organised? Who shall be checked? What shall be checked?).
- Due diligence in the EU and checking compliance following/repeating the same questions as in checking compliance above.
The research is based mainly on case studies. The project team comprises an international mixed group of 20 lawyers and scientists. Currently, legislation and practice of 18 selected countries from 5 continents (S. America, Asia, Africa, Europe and Australia) are being examined. The team will endeavour to offer solutions to the new challenges and close the current gap in research.
The main objective of the project is to conduct a post Nagoya Protocol implementation study of ABS legislation and practice. The specific objective is to find out how the new ABS legislation and practice are coping with selected salient questions/issues that have arisen in the implementation stage. To achieve this, the selected issues will be discussed with the aim to expose the challenges they pose to implementation, as a first step. As a second step, it shall be examined how obligations related to those selected questions/issues have been integrated as well as addressed in the new ABS laws. This will help in checking de jure compliance of the new laws with the Protocol. Finally, since de facto compliance can only be gauged by their performance, current practice will also be scrutinised limiting the study as much as possible to the new questions/issues that have been selected. Examination of current practice will not be limited to state administrative practices alone but will also make a survey covering a number of sectors that use GR and ATK to establish how they are coping with the new situation. The study will be based on country case studies, as already mentioned. It aims to produce results which will be used to first, make a general assessment of the future impact of the NP for R&D on genetic resources and ATK; second, assess the success of national approaches in achieving efficiency and effectiveness in ABS; third, to suggest points of horizontal cross-fertilisation of national ABS laws and practice; and fourth, to generate solutions for open, unresolved and emerging questions to be fed into the implementation process.
The project is hoped to be accomplished through three milestones. The first is an inaugural meeting (kick-off workshop), which took place at the premises of the University of Bremen on 19 April 2017 and was attended by twelve participants. Comprehensive results of the kick-off workshop can be accessed here and available powerpoint presentations under the following links:
The second big event was an international conference that took place on 19 – 20 September 2018 at the Overseas Museum in Bremen City (see flyer here). A summary of the results of the conference can be accessed here. The third event will be a review workshop funded by the German Federal Agency for Nature Conservation (BfN) that will take place in May/June 2019 at the University of Bremen, Germany.
Head of project Dr. Evanson Chege Kamau
Table 1:Experts undertaking case studies
Prof. Jorge Cabrera Medaglia
Costa Rica, Brazil
Dr. Marcelin Tonye Mahop
Cameroon, Algeria, France
Ba Tu Nguyen and Dr. Tran Thi Huong Trang
Prof. Jae-Hyup Lee
Prof. Maria Victoria Cabrera Ormaza
Dr. Luciana Carla Silvestri
Lilian Massini Mozini
Dr. Evanson Chege Kamau
Kenya, South Africa, Malaysia
Table 2:Experts investigating specific themes
Prof. Gerd Winter and Dr. Evanson Chege Kamau
ABS approaches of EU and Member States
Rights over genetic resources and ways of monitoring value chain
Prof. Christine Godt
The due diligence clause interpreted against the background of its use in other policy areas
Dr. Chris Lyal
Rights over genetic resources and digital sequence information: Current debate
Prof. Erwin Beck
Post Nagoya Protocol experiences for basic research in Ecuador, Peru
Rights over genetic resources and their temporal and material scopes: Possible cut-off points
Experience of BfN with implementation of due diligence obligation in Germany
Dr. Romano M. Kachiuru
Cooperation with foreign scientists under new ABS regulations – Case of Kenya
Morten Walløe Tvedt
Essential shifts in thinking about ABS contracts
Author: Dr. Evanson Chege Kamau
Last update: February 2019