General

Basically, the CBD seeks to create a ‘holistic’ legal regime for the genetic, species, and ecosystem levels of biodiversity with the following objectives:

“… the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding”.

Achieving these objectives has several implications for the use and the conservation of genetic resources. Amongst the most relevant provisions is the general regime on access to genetic resources and benefit sharing. Almost all members of the United Nations are parties to the CBD, the most notable exception being the USA.

The CBD deals with all genetic resources, i.e. all genetic material of actual or potential value. This includes living organisms, but also cells and isolated DNA or other carriers of heredity. Until the establishment of the CBD, free exchange of genetic resources was the norm. Even when improved varieties from formal plant breeding were subject to variety rights protection, samples were available for further breeding and research. The CBD principle of national sovereignty over genetic resources allows governments to formally regulate access to biodiversity. In this regime, a framework for bilateral negotiations between provider countries and users is set forth. The elements include:

• An affirmation of the sovereign rights of States over their genetic resources;
• The obligation to endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Parties;
• Where a Party agrees to allow access to its genetic resources, this access shall be on mutually agreed terms and subject to its Prior Informed Consent (PIC).
  The CBD requires signatory countries to establish (a) one or more national authorit(y)ies with the responsibility for administering access to genetic resources. In addition, CBD member countries are required to enact national laws prescribing procedures and standards for defining MAT and PIC, which are thus based on bilateral negotiations. The complexity of the requirements adopted by some countries and, in several cases the lack of clarity about responsibilities for managing the access regulations, have led to a decrease in global germplasm flows.
  
  Benefit Sharing
  One of the three objectives of the CBD, as set out in its Article 1, is the
  

  “fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of technologies, . . . . . and by apporpriate funding”,

  
  
  A framework for the implementation of this objective is provided in Article 15 of the Convention.
  

  Article 15 establishes that exchange of genetic resources must be based on “Mutually Agreed Terms (MAT)” and subject to “Prior Informed Consent (PIC)”. National governments are responsible for translating these concepts into national legislation is the responsibility of national governments. PIC can be organized at three levels (national, communal, individual), all enforcing the sovereign right of the countries over the genetic resources.

  
  In addition, Article 8(j):
  

  [In Article 8 (j), the CBD obligates its member countries (as far as possible, as appropriate and subject to national legislation) to “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles” that are relevant to biodiversity.

  
  The CBD leaves a lot of room for national interpretation, and this may be one of the reasons why many countries have taken long to develop such national rules. One of the key issues is the devolution of responsibilities. Some countries have taken it a long way and in the case of the Philippines, for example, countries Prior Informed Consent must be obtained from indigenous or local communities involved as well as from the land owner and/or the local government in the area where plants may be collected. The PIC of all these stakeholders is a prerequisite for receiving state permission, thus creating a ‘tragedy of the anti-commons’: the more people have to agree, the smaller the chance that a resource can actually be used.
  Similarly, the greater number of parties who have to be consulted, the more complex becomes the issue of benefit sharing. Benefit sharing can take the form of cash payments or, more commonly, non-monetary benefits, complemented in some cases by a sharing of future commercial profits.
  
  Regulating Access and Benefit Sharing
  Non-monetary benefit sharing