Beyond access: Exploring implementation of the fair and equitable sharing commitment in the CBD

The book Beyond Access takes a new approach to Access and Benefit-Sharing (ABS) by analysing legal aspects of the user-side of ABS. Beyond Access takes as its point of departure that all countries are required to adopt user-side measures under CBD Article 15.7. The more specific concepts related to the benefit-sharing part of ABS needs to be further developed and clarified in order to meet the objective and obligations in the CBD.

One main finding in the research behind the book is that no country has successfully adopted the primary user-side measures that are necessary – that is, a basic provision requiring users under their jurisdiction to fairly and equitably share benefits arising from their utilisation of genetic resources with origin in another country. Beyond Access suggests that one important part of the reason for the complete failure of countries to adopt user-side ABS legislation is likely to be the lack of a unified, internally consistent framework to clarify the key definitions and triggers of ABS obligations. Beyond Access suggest that one core part of the solution to this is to develop the two following concepts further:   "Utilization of genetic resources": The CBD Article 15.7 establishes this as the most important trigger of the benefit-sharing obligation. The obligation to share becomes actual when "benefits arising" from the utilisation of genetic resources. Then the creator of those benefits becomes (according to the Article 15.7) obliged to share a fair and equitable part thereof. The closer definition of when "benefits arising" from the utilisation can very well be developed as an objectively verifiable concept that constitutes the "second trigger" of user measures.

Beyond Access suggest a number of topics that need to be developed, clarified and agreed as parts of the working agenda of the Ad Hoc Working Group on ABS. The various suggestions of disclosure requirements and certificates are not alone sufficient to create a legal system that will ensure compliance with the benefit-sharing part of the ABS-system.