13 oktober 2015 Access & benefit- sharing in practice What is ABS? What does ratification mean for...

19 april 2023

Access & benefit-sharing in practice

What is ABS?What does ratification mean for CN?What issues to address in practice?

Léontine Crisson & Paul Hoetjes

What is access & benefit-sharing?

19 april 2023Ministerie van Economische Zaken2

It refers to the way in which genetic resources may be accessed, and how the benefits that result from their use are shared between the people or countries using the resources (users) and the people or countries that provide them (providers)

How is ABS structured?


• Connection between access and the fair & equitable sharing of benefits

• To the benefit of sustainable use and conservation (relation between objectives)

• CBD & ITPGRFA (plant genetic resources food & agriculture)

An international agreement on ABS


Access & benefit-sharing (ABS) is laid down in the Convention on Biological Diversity (Treaty principles: third objective), elaborated in the Bonn Guidelines (2002), and legally binding agreed to in the Nagoya Protocol (2010)

What are genetic resources?


• All living organisms (plants, animals and microbes) carry genetic material potentially useful to humans

• These resources can be taken from the wild, domesticated or cultivated

• They are sourced from:• Natural environments (in situ)• Human-made collections (ex situ) (e.g.

botanical gardens, genebanks, seed banks and microbial culture collections)

Why are genetic resources important?

•Provide crucial information to better understand nature•Can be used to develop a wide range of products and services for human benefit•The way in which genetic resources are accessed and how the benefits arising from their use is shared can create incentives for• the conservation and sustainable use of biodiversity• the creation of a fairer and more equitable economy

to support sustainable development


Why an international agreement on ABS?


In favour of development? > yes

Against biopiracy? > yes

For fair sharing? > yes

Key elements of the Nagoya Protocol The ABC of ABS, three pillars of the Protocol:• Access• Benefit-sharing• Compliance

Other key terms include: • Utilization• User• Provider• Prior Informed Consent (PIC) • Mutually Agreed Terms (MAT)


The ABC of ABS explained

Access: decision to exercise sovereign rights by requiring Prior Informed Consent for access to genetic resources over which you have those rights

Benefit-sharing: in a private law contract, parties agree to the type of utilization, sharing of benefits (monetary/non-monetary) and other clauses including eg settlement of disputes and reporting

Compliance: obligation for Parties to the Protocol to monitor the use of genetic resources in their jurisdiction


Key terms (1): utilization


Protocol says: Research &Development on the GR and/or biochemical components

Cumulative process. Research is always a first step


Key terms (2): users • Plant & animal breeding• Biotech• Pharma• Cosmetics• Applied research

> Which may be relevant to Carribean Netherlands? > Which are now already use CN genetic material?

Key terms (3): provider/providing country

•Nagoya Protocol says (art 5.1)…the Party providing such resources that is the country of origin of such resources or a Party that has acquired the genetic resources in accordance with the Convention

•Is the country that exercises sovereign rights over these genetic resources

•NB: every country can be a provider, and have users


Key terms (4): PIC and MATPrior informed consent (PIC)

The permission given by the competent national authority of a provider country to a user prior to accessing genetic resources, in line with an appropriate national legal and institutional framework

Mutually agreed terms (MAT)An agreement reached between the providers of genetic resources and users on the conditions of access and use and the benefits to be shared between both parties. It is a private law contract.


Implementing measures to be taken (1): access

National implementation measures Need to be in place by ratification (and on basis of EU-regulation for NL/EU)

Access/PIC •Is an option for Parties•Providing access is the prerogative of the CN/local governments based on biodiversity agreements/policy; no role for European NL•No PIC requirement in European NL, so users do not have to get permission for access (nor share benefits)


In practice: questions about access

•What is current practice in CN? •Wish or need to have Prior Informed Consent? •If yes: who will give permission for access, and how? > Existing procedures already in use? •For what types of use do we want to give PIC and come to an agreement? > Differentiation between research & application?

•What (technical or legal) support may be useful?


Options for regulating access in CN (1)Two options in Wet Grondslagen Natuurbeheer:

1. Designation of regulations for access via AMvB – in this case equal for every island, based on Art 8c:

Onverminderd het bepaalde in artikel 15, derde lid, van deze wet kunnen bij of krachtens algemene maatregel van bestuur regels worden gegeven ter uitvoering van het Verdrag van Ramsar, de Bonn-conventie, het Biodiversiteitsverdrag en het Zeeschildpaddenverdrag.

[Without prejudice to Article 15, third paragraph, of this Act, by order of the Council of Ministers rules may be given implementing the Ramsar Convention, the Bonn Convention, the Convention on Biodiversity and the Sea Turtle Convention]


Options for regulating access in CN (2)

2. Regulation by island ordinance, with the possibility for specifics, based on Art 14:

De eilandsraad draagt zorg voor de bescherming van de biologische diversiteit, het verantwoord gebruik van haar componenten en de eerlijke en billijke verdeling van de voordelen die uit het gebruik van genetische bronnen voortvloeien.

[The island council is responsible for the protection of biological diversity, the responsible use of its components and the fair and equitable sharing of benefits arising from the use of genetic resources]


Implementing measures to be taken (2): compliance

Compliance by users: monitoring utilization•Kingdom will need to be able to monitor the use of genetic resources on its territory (risk based checks by NVWA) and report on this to the ABS Clearing House •What is needed on CN? •If there are no users on CN this will not need a lot of attention.•If maybe/yes: consult with policy, legislation, NVWA and research.


State of play in Netherlands (EU)

•State Secretary sent the draft legislation 1. for national/EU rules and 2. for ratification plus elaboration note to Parliament (March)

•Parliament filed a report, St.Secr. replies by mid April•Parliament will decide how to address and discuss•When Parliament agrees, Senate will have to, too

•Instrument of ratification for the Kingdom can be deposited at UN (possibly after summer: October)


More information

Additional information can be found:

www.absfocalpoint.nl (in Dutch & English)www.cbd.int/abs (in English)http://abs-initiative.info/ (incl work in Caribean region)

Please do not hesitate to contact Paul and/or Léontine Crisson at EZ: [email protected] / +31 646208066


Thank you!

• Thank you very much for your attention colleagues!

• On to: questions & discussion


13 oktober 2015 Access & benefit- sharing in practice What is ABS? What does ratification mean for...

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