INTRODUCTION TO THE PRINCIPLES AND FORMS UNDER ABS

(ACCESS AND BENEFIT SHARING)

INTRODUCTION-

Access and benefit-sharing (ABS) is a designed framework to access the genetic resources,
and share the benefits obtained from its uses between the people or countries using the
resources (users) and the people or countries that provide them (providers).

Issues surrounding biodiversity generally divide countries from the South, rich in
biodiversity, and countries from the North, rich in biotechnology. However, until 1992, access
to genetic resources and associated traditional knowledge was considered free almost
everywhere in the world. This situation led to the exploitation, and/or monopolization of
resources and knowledge without sharing of any benefits with countries providing the
resources or with owners of traditional knowledge.

The ABS concept was especially introduces to remedy this situation which deemed to be
unfair. It is formalized through Article 15 of the Convention on Biological Diversity, which
tries to balance the interests, and on the other hand, of the suppliers, who wish to receive an
equitable share of the benefits that can be derived from their uses. Under these rules, the
governments of countries have two key responsibilities:

1. To put in place systems that facilitate access to genetic resources for environmentally
sound purposes

2. To ensure that the benefits resulting from their use are shared fairly and equitably between
users and providers

The ABS mechanism allows local communities better opportunities to benefit from the use of
their knowledge, innovations and practices related to biological diversity. The access and
benefit-sharing provisions of the Convention are intended to create an equity relationship:
access to genetic resources in exchange for the sharing of benefits derived from their use.
Furthermore, the incentives created by access and benefit-sharing were intended to encourage
the conservation and sustainable use of biodiversity, thus contributing to the other two
objectives of the Convention.
“A” is for Access

Users seeking access to genetic resources must get permission from the competent
national authority of the provider country, unless otherwise determined by that country.
This is known as prior informed consent, or PIC.

“BS” is for Benefit-sharing

A provider and a user must negotiate an agreement to share benefits resulting from the
utilization of a genetic resource as well as subsequent applications and commercialization
in a fair and equitable manner. This agreement is known as mutually agreed terms or
MAT. Benefit sharing establishes legal mechanisms to ensure that those who access
genetic resources do so only with prior permission and on mutually agreed terms. India
has been a frontrunner in the move for effective benefit sharing agreements at the
international level, and was also among the first countries to frame legislation on benefit
sharing.

THE PROTOCOLS-

The first protocol of Convention on Biological Diversity is the Cartagena Protocol on

Biosafety for regulating the movement of living modified organisms between countries. This
Protocol is considered to be a major step forward in the matter of Biosafety and has helped
enable a situation for the environmentally sound application of biotechnology and the use of
living modified organisms while minimizing the possible risks to human health and
environment.

The second protocol of CBD is the Nagoya Protocol which focuses on Access and
Benefit Sharing (ABS). India along with other mega-diverse countries played an
important role in shaping the Protocol.

INDIAN SCENARIO-

India is a pioneer in adopting a legislative, administrative and policy framework to promote

fair and equitable sharing of benefits arising from the utilization of biological resources and
associated knowledge. India has an exemplary record in implementing the access and benefit
sharing (ABS) mechanism, which creates incentives to conserve and sustainably use
biological resources and protect associated traditional knowledge. The India Biodiversity
Awards were set up by the Ministry of Environment, Forest and Climate Change (MoEFCC)
and the United Nations Development Programme (UNDP) to, among others, incentivize the
efforts of
stakeholders such as the Biodiversity Management Committees, local communities,
industry and research institutions to promote outstanding models of ABS in the country.

There are around 8.7 million species estimated to be in existence in the World. India's share
of the global diversity is an impressive 8.1% of the total, despite it having only 2.4% of the
land area of the World which includes countless millions of races, subspecies and local
variants of species and the ecological processes. India is very rich in terms of biological
diversity due to its unique bio-geographic location, diversified climatic conditions and
enormous eco-diversity and geo-diversity. India embraces three major biological realms, viz.
Indo-Malayan, Eurasian and Afro-tropical and is adorned with 10 bio-geographic zones and
26 biotic provinces. Being home to such tremendous variety of species and one of the 12
mega diversity countries of the World makes it imperative on the State to protect this
treasured characteristic of our land and take all the possible measures to conserve the life of
such species that inhabit our Country.

In 2002, the Government of India enacted the Biological Diversity (BD) Act in order to
achieve the obligations prescribed under the Convention on Biological Diversity (CBD).
India became a party to the Convention on Biodiversity in 1994 and enacted the
Biodiversity Act and subsequent Rules at the Centre and State levels to adopt the goals of
the Convention on Biological Diversity (CBD) nationally, which is to conserve
biodiversity, ensure sustainable use of its components and to have fair and equitable
sharing of the benefits arising from genetic resources.

In order to implement the provisions of the Biological Diversity Act, the National
Biodiversity Authority (NBA), the State Biodiversity Boards (SBBs) and local level
Biodiversity Management Committees (BMCs) were established under the Biological
Diversity Act in 2002. With respect to ABS, the NBA deals with requests for access to
bio resources and granting approvals for access subject to the mutually agreed terms and
conditions set forth in the ABS Agreement. This is done in order to ensure equitable
sharing of benefits from the use of biological resources and associated knowledge.

The structural and procedural framework for accessing biological resources and sharing
the benefits of that access has been extensively dealt under the Biological Diversity Act,
2002.
THE FORMS UNDER ABS AGREEMENTS-

The Access and Benefit Sharing agreements under the Biological Diversity Act are
divided into four categories. Each of these categories necessitates the completion of four
forms. They are:

i) Form 1 which deals with Access of biological resources occurring in or

obtained from India and/or associated traditional knowledge for research,
commercial utilization, bio-survey or bio-utilization

ii) Form 2 which deals with the transfer of research results relating to biological
resources from India;
iii) Form 3 which deals with applications for intellectual property rights; and
iv) Form 4 which deals with transfer of biological resources and/or associated
traditional knowledge to third parties by individuals/entities who have
accessed these resources and knowledge through Form 1.

CONCLUSION-

With the Nagoya Protocol on Access and Benefit Sharing (ABS) coming into force in
2014, national and global debates on ABS shifted towards implementation of this new
and challenging international framework at national levels. The time and energy spent on
negotiating the framework and its adoption in 2010 by the Conference of Parties to the
Convention on Biological Diversity (CBD) would now be reflected in the manner by
which countries design their ABS frameworks considering options ranging from
administrative to legal regimes.

The national implementation of the Nagoya Protocol can be enhanced through regional
collaborations. Regional collaborations help build capacity of countries to add value to
their own genetic resources and traditional knowledge associated with genetic resources
and avoid duplication of regulatory mechanisms, while encouraging intra-regional
collaboration. Regional collaboration can also address the financial and human resources
constraints faced by many countries.

Behind the concept of Access and Benefit Sharing of Genetic Resources (ABS) lies the
idea that it is essential for the welfare of the current generation and future generations to
allow everyone access to these resources while ensuring the conservation and sustainable
use of biological diversity.