Certificates of origin come of age: the role of certification in International ABS and TK Governance
| Autor | Brendan Tobin |
| Páginas | 263-289 |
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CERTIFICATES OF ORIGIN COME OF AGE: THE ROLE OF CERTIFICATION IN INTERNATIONAL...
CONOCIMIENTOS TRADICIONALES Y BIODIVERSIDAD
Anuario Andino de Derechos Intelectuales.
Año III - N.º 4. Lima, 2008
Certifi cates of origin come of age: the role of certifi ca-
tion in International ABS and TK Governance
BRENDAN TOBIN
Sumario: I. Abstract II Introduction III. The rote of documentation in ABS and TK governance 2.1 CBD’s
role in fair and equitable Benefi t Sharing 2.2 The case for Compliance measures III. Similarities
and differences of certifi cation schemes 3.1 Certifi cates of origin 3.1.1 Certifi cates as incentives for
compliance 3.1.2 Why certifi cates of origin, why not certifi cates of access? 3.1.3 Certifi cation as an
Interim Measure for Protection of TK 3.1.4 Potential content 3.2 Certifi cates of source 3.3 Certifi -
cates of legal provenance 3.4 Certifi cates of compliance 3.5 Comparative analysis of Certifi cation
proposals IV. Certifi cates in International ABS and TK Governance 4.1 Group of Technical Experts
on Certifi cates of Origin/source/legal provenance 4.2 Challenges for implementation of certifi cation
schemes 4.2.1 Practicality, feasibility and costs of certifi cation 4.2.2 Pre-CBD Collections 4.2.3
Traditional Knowledge V. Conclusions
I. ABSTRACT
Development of international regimes to regulate access to genetic resources and
benefi t sharing (ABS), and protection of traditional knowledge (TK) are two of the most
challenging and pressing issues currently under negotiation by the international commu-
nity. Based upon work in Peru in the early 1990’s, proposals were made for a certifi cate
of origin system including binding disclosure of origin obligations, which are now at the
fore of international negotiations in this area. Proposals have subsequently been made for
systems of certifi cates of source, legal provenance and compliance. This paper examines
the similarities and differences amongst certifi cation proposals and their potential role in
international ABS and TK governance
II. INTRODUCTION
Securing fair and equitable sharing of benefi ts derived from the use of genetic re-
sources and traditional knowledge (TK) has become an emblematic cause for developing
countries, indigenous peoples and local communities. Equitable sharing of benefi ts is seen
as a means to compensate countries for their efforts to conserve biological diversity. More
importantly it is a necessary incentive for developing countries and their populations to
continue to provide access to biological and genetic resources and associated traditional
knowledge for scientifi c and commercial use.
Historically biological diversity was treated as the common heritage of humankind and
TK was collected with little if any consideration of the rights of indigenous peoples and
local communities. As a result the biotechnology, agricultural, pharmaceutical, cosmetics
and natural products industries all benefi ted from the relatively low costs of raw materials.
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ANUARIO ANDINO DE DERECHOS INTELECTUALES
CONOCIMIENTOS TRADICIONALES Y BIODIVERSIDAD
Increasing use of intellectual property rights to secure monopoly control over the products
of these industries raised concerns amongst developing countries at the inequities associated
with free access and demands for participation in commercial and scientifi c benefi ts. The
Convention on Biological Diversity (CBD), which came into force in 1993, had amongst
its objectives the aim of securing fair and equitable sharing of the benefi ts derived from
the use of genetic resources and TK
To date the CBD has had only marginal success in securing its objectives and there
is little is any confi dence, amongst most developing countries, in its ability to ensure eq-
uitable benefi t sharing. As a result the international community is currently in the process
of negotiating a new international regime on access to genetic resources and benefi t shar-
ing (ABS). This regime is likely to include a range of binding and non-binding measures,
including measures in provider countries in the form of ABS and TK law and policy and
measures in user countries to support compliance with the CBD’s ABS objectives.
Negotiations to date on the international ABS regime are proving slow and there is
little consensus on the nature, scope and elements for a regime. One area in which there has
been substantial interest and much support has been for the establishment of some form of
standardised system of documentation of resources and TK. This is seen as an important
tool to help demonstrate compliance with national ABS laws and the legal provenance of
resources and knowledge.
First proposed in the years immediately following the adoption of the CBD a variety
of proposals now exists for systems of documentation based around what have been termed
certifi cates of origin, source, legal provenance and most recently compliance. Interest in
the potential role, which some form of certifi cation scheme may play in international ABS
and TK governance has been increasing over the years. The 6th Conference of the Parties
(COP) to CBD which met in The Hague in 2002, called for further investigation of certifi -
cates. COP 8, in Curitiba in 2006 established an international Group of Technical Experts
to investigate the practicality, feasibility and costs of a certifi cation scheme.
As the variety of proposed schemes has multiplied debate has frequently diverted
from the central issue of the potential utility and limitations of any certifi cation scheme
to an often unproductive discussion of which form of certifi cation is to be preferred. This
paper examines the principal elements of each of the main proposed certifi cation schemes
identifying the underlying similarities between them and their differences. The paper ar-
gues that attention should focus primarily on determining the purpose, nature, scope and
elements of any certifi cation scheme leaving a determination on what terminology to use
to describe it for a later time.
This study notes the diffi culties associated with certifi cation of TK and proposes
further analysis of modalities for ensuring that indigenous peoples and local communities
are empowered to control access to and use of their knowledge.
The paper is set out in three sections. Section I, looks at the role of documentation in
ABS and TK governance and the CBD. Section II examines and compares proposals for
certifi cation of source/origin/legal provenance/compliance schemes. Section III proposes
how a certifi cation system may be integrated into an international ABS regime. A fi nal
section sets out some general conclusions and proposals for future work.
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