Abs Agreements

Another international platform for regulating access and sharing of services was adopted one year after Nagoya`s adoption; In 2011, the World Health Organization (WHO) gave the green light to two standard agreements on the transfer of materials for the exchange and use of viral genetic resources with pandemic potential for humans. In these two standard contracts, globally negotiated terms are pre-defined for both rapid access and benefit distribution. Time and unfettered access to the exchange of viral and human pandemic materials are essential to combat potential epidemics. To reach mutually beneficial and achievable agreements, expectations and requirements must be realistic on both sides. To facilitate this process, a better understanding of the constraints and needs of all parties is needed. THE Australian UNWTO legislation is seen as a model in this regard, as it provides for simplified mandatory authorisations for all types of bioprospecting, including non-commercial purposes. The regulation also contains an “amendment of intent” clause, namely that when activities move from purely scientific or non-commercial activities to commercial activities, the user must return to amend the contract. More importantly, this requirement is based on an existing legal instrument, known as a statutory declaration. The latter binds the user to Australian criminal law, although it has only limited force when the genetic material is passed on to third parties. [Ref. 5] Although the Australian system has been in place for some time, almost none of the initial bio-prospecting agreements allowed the user to return to enter into a service-sharing agreement. This partly shows the magnitude of the challenge that countries face in measuring and tracking the use and marketing of products on the basis of their genetic resources. The CBD protocol and the Nagoya Protocol are based on the perception that countries that, at the time of access, are the main regulators of the ABS.

During the negotiations that eventually led to the new instrument, the understanding of “the use of genetic resources” gradually increased. The Nagoya Protocol uses CbD 15.7 to define exactly what use is in Articles 2, Points (c) and (d). For example, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) has been in force since 2004. It is a global instrument to promote the conservation of plant genetic resources and to support the protection of farmers` rights and to ensure a fair and equitable sharing of the benefits of using plant genetic resources. The Plant Treaty provides for a multilateral system (MLS) under which selected crops are traded without individual regulation, subject to a standard contract that focuses less on cash benefits and considers access to plant genetic resources to be an advantage in itself. One of the challenges of this instrument is that not all parties to the CBD are members of the plant contract. Between the scope of the ITPGRFA and the General ABS, there are a number of unresolved and contentious issues. It is not clear which plant resources are required under the enterprise contract. There is a significant difference between the views of Halewood et al. [Ref 6] and Cabrera et al.