Florelia Vallejo Trujillo, “The Complex Genesis of ABS”
The fair and equitable sharing of benefits arising from the utilisation of biological diversity (hereafter biodiversity) and traditional knowledge (TK) i.e. access and benefit sharing (ABS), is a topic that has been increasingly gaining importance in the international arena. At the same time, biotechnology was evolving, allowing the use of genetic resources (GR) as separate components of biological resources. The ABS refers to the right of providers to be compensated when a third party uses their biodiversity and the knowledge related to its use, for example, to develop marketable products. Thus, it was acknowledged by the international framework that the countries of origin of the resources and the traditional communities who have preserved and developed these resources and knowledge deserve a compensation for their use, based on both, property and equity reasons. This paperwill show that a key element for the understanding of the ABS system as enshrined in the CBD must include the analysis of its historical development at an international level, mainly within FAO, CBD and TRIPS forums. Through this historical description, it will be supported that poor developments and poor compliance of the ABS systems are caused by the lack of political will of developed countries in the fulfilment of ABS obligations, as well as by their high ability to include their interests in the texts of international treaties, which, in addition, may include the non-recognition or non-inclusion of other countries’ rights in the same treaties. This fact can be observed for example in the avoidance of providers’ demands to establish a mandatory disclosure requirement in patent applications.