States have sovereign rights over their natural resources. This was agreed by the UN in a Resolution in 1962, and is followed by the UN Convention on Biological Diversity (CBD). This clarifies that a country has sovereign rights over its biodiversity– the animals, plants, fungi and microorganisms that live within its territories – and can if it wishes state how that biodiversity is taken by others (accessed) and used. This underlies the development of Access and benefit-sharing, and provides the rationale for the process of countries issuing permits to collect organisms within their borders.
There are many examples of plants, animals and micro-organisms being used to create products of value, for example asprin developed from willow trees, numerous cosmetics developed from plant extracts, and the use of genes from wild relatives of crop plants to introduce valuable traits. Such uses generate Benefits, either monetary or non-monetary, and countries where the organisms or genes originated would expect to share in these benefits, since the organism or gene fell under their sovereign right. The third objective of the CBD addresses this: it is fair and equitable sharing of benefits arising from the utilization of the genetic resources. This is Access and Benefit-Sharing, or ABS.
Genetic resources means any(Genetic material (material of plant, animal, microbial or other origin containing functional units of heredity) of actual or portential value (this value being monetary or non-monetary). Like many other relevant terms it is defined in the text of the CBD (in Article 2), others being defined in the Nagoya Protocol (Article 2). These terms, including the ones italicised above, are used in many documents addressing ABS and need to be understood. In addition to brief explanations in the text they are explained more fully in the Glossary on this site. A key term for us is access – which in most countries equates to collecting specimens or samples.
Following the CBD coming into force on 29 December 1993, many countries have developed national legislation governing how genetic resources should be accessed and used. Often this is largely through issuing permits, sometimes focussed on protected areas or species. This is why biodiversity scientists are required by many countries to obtain a collecting permit before undertaking fieldwork. These permits often have conditions – return of information, or specimens, or a requirement for a local counterpart. In the terminology of the CBD, these conditions are benefits, and thus when a member of staff obtains a permit they are likely to be entering into a benefit-sharing agreement on behalf of their institution with the country or provider concerned.
This system has been operating now for more than 20 years, and yet still raises considerable problems.
In 2014 an additional international measure came into force, the Nagoya Protocol. This Protocol requires its Parties to monitor utilization within their jurisdiction, and take steps to manage utilization of Genetic resources that were obtained without the appropriate permission from the provider country. A country becomes a Party to the Protocol by ratification; to date 104 countries have done so (February 2018).
The UK is a Party to the Nagoya Protocol, and thus has a legal responsibility to implement it. It does this through a Statutory Instrument that implements a European Union Regulation and a Commission Implementing Regulation. This will apply until Parliament takes action to change it, so is not affected by the current position of the UK with regard to the EU.