International Law on Access and Benefit-Sharing and Bangladesh’s Legal Regime

Geographically Bangladesh is a tiny country, but nature has blessed it with diverse wildlife and biodiversity. Bangladesh’s agriculture, fisheries, forestry and some other sectors are heavily dependent on biological resources. Globally, the conservation of biodiversity is no longer seen only for its intrinsic or aesthetic value but also as a means to promote socio-economic development. We protect biodiversity for ourselves because the loss of biodiversity or biological resources threatens many of our basic needs. It is in this realization that the international community adopted the Convention on Biological Diversity (CBD) in 1992. 

Access under the CBD is meant to be of biological or genetic resources, and benefit-sharing refers to the benefits that might ensue from the use of genetic resources or associated traditional knowledge (TK). Access and Benefit-Sharing (ABS) constitutes one of the three objectives of the CBD, next to conservation and sustainable use of biodiversity. With the rise of the bio-industries and accompanying intellectual property rights (IPRs), protection on life forms, genetic resources etc. have become more valuable and lucrative. Countries of the global South, the primary holders of the planet’s biodiversity, became frustrated with a number of cases on biopiracy, where genetic resources from the global South were being used in laboratories in the global North, where it was often patented and accrued benefits, but with no returns to the country of origin.

Against this backdrop, as a manifestation of permanent sovereignty over natural resources, sovereignty over biological resources was granted to the states by the CBD. The CBD differentiated between the term “Biological diversity” and “biological resources”. While the former is to be conserved, the latter is to be used sustainably. “Biological diversity” is declared as ‘common concern of humankind’, which is in between the concepts of ‘tragedy of the commons’ and ‘the common heritage of mankind’; the legal status and implications of which are ambiguous. By sovereignty over biological resources, states are now entitled to regulate access to genetic resources and negotiate terms for benefit-sharing as per the principles of prior informed consent (PIC) and mutually agreed terms (MAT) respectively.

Though the state sovereignty on biological resources was declared, from the very outset of the CBD and the 2010 Nagoya Protocol on ABS, it is clear that the sovereign states have to facilitate access to genetic resources by other state parties to the CBD. This approach makes it difficult for provider countries to refuse access to genetic resources. The Nagoya Protocol envisages two distinct national legislative components to every ABS system: source-country measures— identifying access procedures and requirements based on sovereign rights; and user-country measures— addressing the responsibility of users, including prevention of misappropriation of genetic resources or TK, who are utilizing genetic resources from other countries. Every country as a potential user and provider of genetic resources is obliged by these provisions.

The ABS mechanism under the CBD and Nagoya Protocol is depicted in two tiers: inter-State benefit sharing and State-to-community benefit sharing. States are obliged to establish measures to ensure that genetic resources and associated TK held by indigenous and local communities are only accessed with PIC or the approval and involvement of the community, along with MAT. Hence, the questions of ownership and tenure on genetic resources and TK by indigenous and local communities invariably have an important bearing on the practical modalities of ABS. 

Bangladesh is a party to the CBD and signatory of Nagoya Protocol. As a dualist country, Bangladesh requires implementing domestic law on the same. After 25 years of the adoption of CBD, the Bangladesh Biological Diversity Act 2017 (hereafter the Act) was enacted to fulfil the state’s international commitments and constitutional obligations. As the existing laws broadly covered conservation of biodiversity and biosafety issues, the significance of the Act lies basically in introducing an ABS mechanism. The Act promotes research on biodiversity and biological resources, leading towards biotechnological inventions and their commercial utilization through preparing a nation-wide biodiversity register and documentation of TK. The commercial utilization will, of course, generate economic benefits which need to be shared in a fair and equitable manner. Here lies the importance of this legislation as a tool of economic development for the holders of TK related to biological resources.

Sections 4-7 of the Act regulate the access to biological resources within the territory of Bangladesh. A non-citizen, non-resident citizen or any organization not incorporated in Bangladesh require to take the prior approval of the National Committee on Biodiversity (NCB) to collect or obtain any biodiversity, biological resource or TK for research or for commercial utilization or for bio-survey/bio-utilization. Moreover, no other person or organization can, without prior approval of the NCB, transfer to them the results of any research relating to biodiversity or biological resources. It is further clarified that the publication of any research paper and dissemination of that knowledge in any seminar or workshop is allowed and will not be considered as ‘transfer’ of research result if such paper is published as per the guidelines of the Government. Furthermore, prior approval of the NCB is required for any person, be it a citizen or a non-citizen, to apply for a patent or any other form of IPRs for any invention based on Bangladesh’s biological resources. Every refusal on any such application will have to be grounded, and every refusal can be appealed. It means Bangladesh provides for facilitative access and not prohibitive access to biological resources.

The Act does not recognize any collective or individual rights of indigenous or local communities in determining access to their biological resources and TK. Rather the sole control over biological resources and TK is conferred to the bureaucrat-run NCB, which has no legal personality. There is no provision of adherence to PIC and MAT procedures in relation to indigenous or local communities. Even the Act contains no mention of the term ‘indigenous’. Rather, it used ‘local community or people’. Indigenous communities of Bangladesh are mostly forest dwellers but their forest rights on ancestral lands and access rights over the forest lands and resources are not recognized. In Chittagong Hill Tracts region, their land title and community ownership still remain unresolved. The Act just institutionalises this historical injustice— the absence of proprietary rights over their biological resources and TK. By giving over-emphasis to the state sovereignty, it has denied the indigenous peoples’ sovereignty over their resources.

Section 30 of the Act deals with equitable sharing of benefits arising out of genetic or biological resources. The formulation of the benefit-sharing mechanism in the Act is of serious concern. It is provided that the NCB will determine the fair and equitable benefit sharing by applying different parameters like – granting ownership or joint-ownership of IPRs, transfer of technology to the benefit claimers, installing plants in a suitable place for benefit claimers, engaging Bangladeshi scientists and others in research and development, and payment of monetary compensation and non-monetary benefits to the claimants.  The Act indicated six methods of determining fair and equitable benefit-sharing and suggested to follow all or any of those. Under the CBD and the Nagoya Protocol, any domestic ABS system must be based on PIC and MAT. Among the six methods, only the first method provides for PIC and MAT, which is clearly falling short of the CBD or Nagoya standards. From a plain reading of the section, it is quite understandable that the first method was wrongly drafted as a method. Rather, it should be placed in the chapeau of the section as a pre-requisite for any method of fair and equitable benefit sharing. Moreover, though it is provided for granting joint ownership of IPRs to the NCB, without legal personality how it will own, claim or enforce the IPRs remains to be seen.

It is submitted that the Government should bring necessary amendments or enactments to make the domestic ABS regime, CBD and Nagoya Protocol-compliant.  It is further submitted that they should frame Rules to provide more clarity on PIC and MAT requirements, as well as the quantum of benefit sharing, particularly with respect to indigenous and local communities for creating a functional domestic ABS system.

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