Guest Article #20

Making ABS Systems Work at the National Level

The Third Meeting of the Open-ended Ad Hoc Intergovernmental Committee for the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ICNP 3) is scheduled to be held in Pyeongchang, the Republic of Korea, the 24-28 February 2014. The meeting comes at a crucial time; when momentum for a speedy entry into force of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) has picked up, with close to thirty countries ratifying/acceding to the Protocol. The meeting will discuss, inter alia, issues related to monitoring and reporting, issues of sectoral/cross-sectoral guidelines, voluntary codes of conduct and implementation of the Protocol.

With very few countries around the world working on implementing national ABS regimes, it is important to highlight the following critical points for effective implementation of the Protocol at the national level. First, significant time and energy were spent on negotiating the Protocol, which was adopted in 2010. Considering this, countries now need to not only accede to the Protocol, but to also put in place national ABS frameworks that will carefully consider options that facilitate the appropriate use of genetic resources. In doing so, countries need to consider provisions that are non-arbitrary, simple and make monitoring and compliance easy. This means that users, both countries and individuals, of genetic resources need to be encouraged to deal with issues of appropriate access to resources on conditions and terms that are simple to comprehend and transparent. Users should also agree on suitable benefit sharing measures.

The recent example of how the Ayurvedic Drug Manufacturer's Association (ADMA) in India has volunteered to contribute to the national biodiversity fund is a welcome measure. The fund was established in India under the Biological Diversity Act for sustainable access and use of medicinal plants. ADMA has agreed that its contributions directly support conservation, in addition to benefit sharing, when commercialization of bioresources occurs per the Act. Sectors such as biotechnology, the seed industry and others whose business is based on biological resources or genetic diversity should be encouraged to develop voluntary codes of conduct on both issues of responsible access and ABS measures. In this regard, it should be noted that legal frameworks can be simple while voluntary codes can contribute to due diligence from industry and sectors.

Second, national ABS frameworks should be careful not to develop a multiplicity of sectoral/cross-sectoral guidelines for ABS purposes, which might substantially increase the enforcement and compliance burden. Such measures could also increase the institutional overheads for monitoring and reporting. While literature is available supporting the development of such sectoral/cross-sectoral guidelines at the national level, countries need to prioritize the two to three key sectors that need oversight related to ABS priorities. This way we can improve the speed of implementation of such guidelines, but also reduce redundancy.

Third, while countries might attempt to develop comprehensive ABS frameworks with the traditional multi-million dollar returns through an ABS mechanism in mind, experiences in countries around the world have shown that such attempts are not always successful. One of the critical issues countries need to focus on is whether it is cost effective to put in place a robust ABS system with limited incentives for people to use the resources. Experiences, again from India, show that small-scale, rural enterprise development models that network local communities with business communities need to be tried and tested. However, it is pertinent to mention that such value-added actions abound in developing countries, but they are not always considered or interpreted as a part of the ABS system. The implementation of a ‘learning by doing' approach is the best way forward for countries looking to develop and implement national ABS systems and frameworks. We need to agree that being perfect is not always good!

Fourth, experiences from countries show that awareness related to ABS mechanisms is a double edged sword. Raising the expectations of communities and policy makers and promoting ABS as the best ‘money spinning' mechanism for conservation needs to be managed appropriately. The absence of mechanisms that appropriately view ABS as an incentive for both users and providers of resources could result in unclear compliance measures that then result in litigations arising from situations where traditional and conventional uses of resources can be challenged under ABS systems at the national level.

Last, while it is important to note that there are hundreds of ABS examples and experiences available globally, we are limited by the amount of literature accessible, and therefore limited in our understanding of how such systems work at the local level, as well as what kinds of compliance and implementation challenges stakeholders could face. It is therefore timely that ICNP 3 looks at a formal mechanism to address ABS issues from a facilitative, cost-effective, transparent and objective view point, rather than as a mechanism that restricts the use of the resources, reduces transparency in decision making due to heavy bureaucracy, and refuses to contribute to local, scalable and sustainable conservation and development action.

Balakrishna Pisupati: The author is an ABS expert and has contributed to the implementation of ABS mechanisms in countries, including India.