Access to Genetic Resources

Regional organizations and national legislatures are beginning to respond to recent changes in international law concerning access to genetic resources and the sharing of benefits deriving from that access. The International Undertaking of 1983 had established that "plant genetic resources are a heritage of mankind to be preserved, and to be freely available for use, for the benefit of present and future generations." The Convention on Biological Diversity (CBD) significantly changes the rules relating to control of genetic resources. Article 15 of the CBD affirms a State's sovereign rights over its genetic resources and its ability to regulate access to genetic resources. Parties to the CBD, however, must also facilitate access to genetic resources for environmentally sound purposes, subject to mutually agreed terms, and prior informed consent. Any national legislation must not run counter to the objectives of the CBD. The Parties also must fairly and equitably share the results of research and development and the benefits arising from commercial and other use of genetic resources with the Party providing such resources. By creating these rules relating to access to genetic resources, the CBD seeks to conserve biological diversity, sustainably use its components, and share fairly and equitably the benefits arising from the use of genetic resources.

Although it has revamped the legal regime relating to genetic resources, the CBD fails to address several important issues. Of particular importance for the exchange and use of plant genetic resources for food and agriculture (PGRFA), it fails to address ex situ collections acquired before entry into force of the CBD. In addition, it fails to specify the mechanisms for prior informed consent of those who provided the genetic material.

As a result, lawyers and activists around the world are working to clarify these and other issues. In many countries, the primary issue relates to "theft" of genetic resources. For example, many believe that the use of genetic resources by researchers and agricultural pharmaceutical companies without the consent of those who developed the genetic material over generations constitutes "biopiracy." They also argue that those who produce new agricultural products and pharmaceuticals should provide compensation to those who helped develop the genetic material. This is rarely done.

In addition, ex situ centers around the world, including the International Agricultural Research Centers within the Consultative Group on International Agricultural Research (CGIAR centers), possess vast collections of germplasm held "in trust for the international community." The extent to which the CGIAR centers and their ex situ collections are affected by the CBD directly depends on a country's legislation to implement the access and benefit sharing provisions of the CBD. In 1999, IELP prepared a study on behalf of the CGIAR centers, The Impact of Access Legislation on the Conservation, Exchange and Use of Plant Genetic Resources for Food and Agriculture: A Review of Access and Benefit Sharing Provisions (May 28, 1999).

The paper assesses the impact on the CGIAR centers of enacted and draft laws that regulate access to genetic resources and which also seek to protect the traditional knowledge of indigenous peoples and traditional farmers. While no generalized conclusions can be made due to the differences in national legislation, the paper concludes that the laws (or draft laws) of some countries impose significant hurdles to the collection and use of genetic resources for agricultural purposes by CGIAR centers.

Project Resources

Africa
Organization of African Unity (Draft)

Australia
State of Western Australia, Conservation and Land Management Act

Andean Pact
Decision 391, Common System on Access to Genetic Resources (English)

Decision 391, Regimen Comun sobre Acceso a los Recursos Geneticos

Bolivia
Supreme Decree No. 24676, Regulation of Decision 391 on the Common Regime for Access to Genetic Resources (English)

Decreto Supremo No. 24676, Reglamento de la Decision 391 Regimen Comum de Acceso a los Recursos Geneticos (Spanish)

Brazil
Federal Bill of Law No. 306/95 (Draft), Access to Genetic Resources (English)

State of Acre (Brazil), Acesso a Recursos Geneticos Lei Estudual No. 1235 (Portuguese)

State of Amapá Brazil), Lei No. 0388/97 (Portuguese)

State of Amapá(Brazil), Lei No. 0388/97 (English)

Costa Rica
The Biodiversity Law No. 7788 (relevant provisions, unofficial English translation)

Ley de Biodiversidad, No. 7788 (Spanish)

Peru
Law No. 26839, Law on the Conservation and Sustainable Use of Biological Diversity (English)

Ley No. 26839, Ley sobre la Conservación y Aprovechamiento Sostenible de la Diversidad Biológica (Spanish)

Bill to Regulate Access to Genetic Resources (English)

Proyecto de sobre Acceso a los Recursos Geneticos (Spanish)

Philippines
Executive Order No. 247

Department Administrative Order No. 96-20, Implementing Rules and Regulations on the Prospecting of Biological and Genetic Resources

United States of America
Regulations of the National Park Service of Department of the Interior, relating to Parks, Forests, and Public Property (36 CFR § 2.5)

Other Laws
Draft Model Law: Collectors of Biological Resources (Control and Licensing) Act, prepared by Gurdial Singh Nijar

Draft Model Law on Community Rights and Access to Biological Resources, prepared by Gurdial Singh Nijar

General Resources

CGIAR Home Page

Commission on Genetic Resources for Food and Agriculture (forum to discuss and negotiate matters relevant to genetic resources for food and agriculture)

International Plant Genetic Resources (IPGRI) (a research institute for the conservation and use of genetic resources)

WIPO Administered Treaties (a United Nations agency developed to protect intellectual property worldwide)