ACCESS AND BENEFIT SHARING MECHANISM: A Theoretical Framework

by Advocate Jayanta Boruah

Biodiversity, in a general sense, means the variety of living species. It plays a significant role in the survival of the entire ecosystem. Biodiversity covers a complex and wide range of different living species, right from single-celled micro-organisms to complex large organisms. It even includes atmosphere, hydrosphere and lithosphere. Humanity got nourished in the laps of Nature, which includes biodiversity as a part and parcel to provide the basic needs of life. With regards to the status of India relating to biodiversity, India ranks 17 amongst the mega biodiversity countries of the world. It has only 2.4% of world’s land area but consists of around 7.8% of total species, which includes 46,000 species of plants and 81,000 species of animals as per documented by the Botanical Survey and Zoological Survey in India respectively[1]. The country also provides shelter to many microbial species. Further, different species of seeds including both domestic and wild varieties are found in India. All these make the diversity of the ecosystem in India very unique in the world.

For the preservation and protection of this variety of species in India, several legislations were framed from time to time. However, the most important one in this regard was the enactment of the Biological Diversity Act 2002 and its rules of 2014 which were an attempt to implement the international Convention on Biological Diversity, [CBD], 1992. By virtue of this Act, several authorities were set up via, National Biodiversity Authority [NBA] at the national level, The State Biodiversity Boards [SBB] at the state level and the Biodiversity Management Committees [BMC] at local levels for the implementation of the provisions of the said Act at various levels of the country. One of the chief purposes of this Act is also to regulate the Access and Benefits System [ABS] of Biodiversity resources across the country for scientific research, commercial utilization and several other utilities of such resources.[2]

This article will, therefore, make an attempt to highlight the theoretical parameters based on which the entire system of ABS was developed so that the laws regulating such system in India can be justified whether they are able to meet those theoretical foundations while they are been implemented.    

PRINCIPLE OF PERMANENT SOVEREIGNTY WITH RESPECT TO LIABILITY PRINCIPLE

The laws on ABS came into existence only after realizing the need of building a framework for dealing with the issue of increasing conflicts between the nations of the International World Order over the sharing of their Natural Resources. By the mid of 20th century, the Principle of Permanent Sovereignty with respect to the Liability Principle was acknowledged worldwide.[3] The basic jurisprudence behind this Principle was to ensure equal rights to every independent nation to determine their resources and to deal with them accordingly. At the same time, it was made liable for the nations for disturbing the sovereign rights of other nations, while dealing with their own resources. As such equal respect to each other’s existence was encouraged. In the field of biological diversity, this principle comes into play because every nation should enjoy its rights over its Biological Resources (BR) and thereby also entitled to an equitable share of benefits from the utilization of such resources from their country by any foreign country. Thus, this Principle became one factor behind the emergence of ABS laws at the global level.

CONSERVATION OF NATURAL RESOURCES

Further, the world community has felt the need of conserving these Natural Resources, since they are now getting extinct at an alarming rate, due to their over exploitation in the name of development by the human community since time immemorial.[4] At the same time commercialization of these resources are also needed, since they form the very essentials for human existence. All these resources possess an economic value but for the sake of utilizing such values, compromise with their conservation cannot be appreciated. It is therefore needed to introduce a mechanism whereby inconsistency between both commercialization and conservation of these resources can be achieved, for which a regulatory framework is needed to govern such aspects. And this need gave birth to the ABS mechanism. The ABS provides the academic and commercial pursuits for balancing the interests of both users and providers of the Genetic Resources (GR) which ultimately contributes to the conservation of these resources.[5]

SUSTAINABLE UTILIZATION OF BIOLOGICAL RESOURCES

In addition to the above two factors, the ABS laws are also applicable to making efficient use of these resources. In other words, for the sustainable use of these resources, in order to protect them from over exploitation.[6] Sustainable use of these resources will ensure the rights over these resources for both the present as well as the future generations. The ABS system was launched with a view not only to promote or safeguard permanent sovereignty of the nations but also to ensure conservation as well as sustainable use of the Biodiversity. ABS system also takes into account the conservation of these resources as well as proper utilization of the same.

CAPACITY BUILDING

Capacity Building is another aspect of this system. By this Principle, attempts are to be made by the respective national governments though policies and laws for increasing the productivity and quality of their BR which can be achieved either by capacity building program, building dockets, and other such initiatives.[7]

RIGHTS OF LOCAL COMMUNITIES

Besides protecting the rights of the countries over their BR, this ABS system was also introduced with an attempt for protecting the rights of the indigenous/local communities. Although the definition of the term indigenous is hard to find in any particular International Instruments[8], it means the rights of the natives or the local communities, who are in actual possession of the BR as far as their conservation and the knowledge relating to the use of such BR. This system ensures a fair and equitable share of benefits arising out of the utilization of those resources which are actually in possession of these LCs. Therefore, this system provides for legal recognition of the rights of the local communities over their biological resources. The rights of local communities that can be ensured by the ABS mechanism can be depicted by the figure below-[9]

LINK BETWEEN CONSERVATION AND COMMERCIALIZATION

It was held in the Johannesburg Conference that the loss which has been already made to the Biological Diversity can only be restored if the local communities are made entitled to some benefits for dedicating their efforts in the conservation and sustainable benefits of the GR, particularly in those countries where these resources originate, this realization later initiated the idea of ABS system in the international legal framework.[10] The philosophy behind this was that, if someone can earn some value by producing any resources then such person will be keener to produce those resources again and that also will try to increase such production to earn more benefits.                    

BRIDGING THE GAP BETWEEN DEVELOPED NORTH AND DEVELOPING SOUTH

This Mechanism is also believed to be capable of bridging the gap between the countries with huge stock of BR and the countries with advanced Bio-technologies and at the same time, it is also believed that this system will also help in bringing the Traditional Knowledge to a form by which such knowledge, with the help of modern technology, can bring about development in a sustainable manner to the contemporary world. By this mechanism, the developing nations in the south, who are rich in biodiversity can sell their biological resources to the developed nations in the north who are technologically advanced, but with a low amount of GR, upon conditions by which both the parties will be benefited mutually.

PREVENTION OF BIO-PIRACY

These laws are also needed to check bio-piracy. ‘Bio-piracy’ means illegal utilization of Biological materials for commercial or other beneficial purposes without sharing the benefits earned from such utilization with the local people or the government of the country from which such resources were obtained.[11] Thus, in order to check such illegal activities, a legal framework is needed.

UTILIZATION OF BIOLOGICAL RESOURCES FOR ECONOMIC DEVELOPMENT

Economic development is must to meet the needs of the increasing human population, for which the demand for resources will keep on increasing, while at the same time the resources are decreasing.[12] It is well established that human wants are unlimited but resources to satisfy those wants are limited. Therefore, besides fulfilling the needs of humanity, concern shall also be laid upon conservation and sustainable use of the existing resources without their exploitation. This provides a base for the establishment of the ABS system which is expected to ensure both conservation and sustainable use of GR along with maintaining the economic value of those resources.

CONCLUSION

The ABS system, in short, can be held to be useful for the promotion of the entire human civilization by looking at the various ideologies that led to the foundation of this mechanism. But whether the laws that are responsible for the implementing of this mechanism are actually capable of satisfying the desired requirements or not is a matter to be considered by verifying the results of implementation with the parameters specified by these theories, principles and ideologies. However, the Role to be played by ABS can be depicted in the following figure-

Views are personal.

Image Credits: Global ABS

ABOUT THE AUTHOR

Advocate Jayanta Boruah, practices at the Gauhati High Court and is a Ph.D scholar at North-Eastern Hill University,  Shillong.


[1]  Frequently Asked Questions on the Biological diversity Act, 2002, National Biodiversity Authority, (Sept.. 09, 2018, 12:35 PM), http://nbaindia.org/content/19/16/1/faq.html.

[2] Kabir Bavikatte & Daniel F. Robinson Towards a People’s History of the Law: Bioculture Jurisprudence and the Nagoya Protocol on Access and Benefit Sharing. 7(1), LEDJ, (2011), 35, http://www.lead-journal.org/content/11035.pdf.

[3] Stephen Hobe, Evolution of the principle on permanent sovereignty over Natural Resources: From soft law to a customary law principle?, ResearchGate, (Nov. 13, 2018, 01:23 AM) https://www.researchgate.net/publication/285601382…Evolution…of…the…principle…on…parmanent…sovereignty.

[4] Kanchi Kohli , Introduction to CBD Framework, National Commitments and Achievements, LOAD.ORG (Nov. 01, 2018, 11:23 PM), http://load.org.gov.in/wp-content/uploads/2016-17/NTP*2006/kanchi*20kohli.pdf.  

[5] ABS initiative Relevance, (Nov. 20, 2018, 12:23 AM), http://www.abs-initiative.info/abs-simply-explained/relevance/.  

[6] Access and Benefit Sharing: an innovative tool for the conservation and sustainable use of biodiversity, Federal public service, Health Food Chain Safety and Environment, (Nov. 21, 2018, 02:23 AM), https://www.health.belgium.be/en/animals-and-plants/biodiversity/genetic-research-resources/access-and-benefit-sharing-innovative-tool.   

[7] Biodiversity, un@WCMC (May 22, 2019, 11:55 PM) http://www.biodiversitya-z.org/content/biodiversity.pdf.

[8] Rashwet Shrinkhal, Problem in Defining ‘Indigenous Peoples’ Under International Law, CLJ, V 7, No. 7, (Nov. 20, 2018, 02:33 AM), https://paper.sem.com/sol3/paper.cfn?abstract…id=2425557.  

[9] Hanry Jonas, et al, Community Protocols and Access and Benefit Sharing, RIS, (Nov. 21, 2018, 01:23 AM), http://absinitiative.info/fileadmin/media/knowledge…Center/Publications/BCPs/community…protocols…and…ABS.pdf.  

[10] HANDBOOK ON BIOLOGICAL DIVERSITY LAWS, ACCESS AND BENEFIT SHARING, National Law School of India University, Bangaluru, (2016).

[11] Definition of Biopiracy, Merriam-Webster, (Nov. 21, 2018, 12:23 PM), https://www.marriam-webster.com/dictionary/biopiracy.   

[12] Swati Sambat, Adam Smith and His Theory of Human Wants, IndiaStudy.Channel, 9Nov. 21,2018, 12::13 PM), https://www.indiastudychannel.com/resources/133733-Adam-Smith-and-His-Theory-of-Human-Wants.appx.  

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