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However, after the forest law, a typical example of Mutual Agreed Terms (MAT) in accordance with the access to genetic resources and benefit-sharing was adopted in Costa Rica. It is the National Biodiversity Institute (INBIO) in Costa Rica, set up in 1989. The concept and practice of „bioprospecting‟ and „benefit-sharing‟ have been developed by this institution and these serve as one answer to the need for sustainable use of Costa Rica biodiversity to benefit society.154 INBIO has a formal agreement with the Minister of Environment and Energy (MEE) that allows it to carry out specific national inventory activities and use of the biodiversity in the country‟s protected areas.155 In the framework of research, INBIO works together with investigation centres, universities and national and international private companies by means of investigation agreements.156 The agreements specify that 10 percent of the research budgets and 50 percent of the future royalties are to be donated to the MEE to be reinvested in conservation issues.157 The research budget is of great importance since it helps to enhance the scientific infrastructure in the country, and also encourages activities for the conservation and sustainable use of the biodiversity.158
Costa Rica ratified the CBD and so became a Contracting Party to it on August 26, 1994.159
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(IU), that have been the first to deal with issues relating to genetic material, especially, plant genetic resources.
The Philippines and Costa Rica are value examples of countries that made an effort to promote and regulate genetic resources at domestic level, prior to the entry into force of the CBD. The next Chapter will discuss the development of measures to regulate access and benefit-sharing at the international level.
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Chapter Three: International Instruments Designed to Regulate the Use of Genetic Resources
3.1 Introduction
A number of legally binding and non-binding global and regional instruments address the management of genetic resources, especially access to genetic resources and the equitable sharing of benefits obtained from their use. In dealing with this issue, those instruments come into play in that they contribute to the efforts provided by countries in possession of genetic resources to bring to an end the problem relating to biopiracy and unsustainable use of these resources.160 Unfortunately, however, these instruments have not succeeded in eliminating biopiracy. In order to be able to assess the contribution that the Nagoya Protocol makes to the International Regime on ABS, it is necessary to look at the ABS instruments that existed before the Protocol and to evaluate their strengths and weaknesses.
This chapter of the dissertation examines those instruments. At the global level, the most commonly mentioned agreements that contain the international system of governance for genetic resources, in addition to the Convention on Biological Diversity (CBD), are: the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA);161 the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)162 and the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, 2003 (Bonn Guidelines).163 However, the Seventh Conference of Parties to the CBD (COP7)164 also recognized other relevant international instruments which will not be analysed within the scope of this work.165 At a regional level, reference will
160 Mumba, L.E, and Marandu, W Traditional Knowledge and Plant Genetic Resources Guidelines, (2012) at 1- 2, Southern Africa Network for Biosciences (SANBio). Available online at: http://naturaljustice.org/wp- content/uploads/pdf/SanBioGuidelines.pdf. Date of access 01/01/2013.
161 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), 2001, available online at: http://ftp.fao.org/docrep/fao/011/io510e/io51oe.pdf. Date of access 12/12/2011.
162 Agreement on Trade-Related International Properties (WTO/TRIPS), 1994, available online at:
http://www.wto.org/english/tratop_e/trips_e/trips_e/t_agm0_e.htm. Date of access 12/12/2011.
163 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, 2003 (Bonn Guidelines), available online at:
http://archive.defra.gov.uk/environment/biodiversity/geneticresources/documents/bonnguidelines.pdf. Date of access 05/01/2012.
164 Decisions VII/26 adopted by the Conference of the Parties to the Convention on Biological at its Seventh Meeting. Available online at: http://www.cbd.int/decisions/cop/?m=cop-07. Date of access 20/11/2012.
165 Decision 486 of the Andean Community, available at: http://www.wipo.int/wipolex/en/details.jsp?id=9451;
United Nations Convention on the Law of the Sea, available at:
http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf; Convention in International Trade in Endangered Species of Wild Fauna and Flora, available at: http://www.cites.org/eng/disc/text.php; the Universal Declaration of Human Rights, available at: http://www.un.org/en/documents/udhr/index.shtml;
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be made to the 1996 Decision 391 of the ANDEAN Pact (Community of Five Nations) on ABS processes and procedure,166 and the African Model Law for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, 1994 (African Model Law).167 This study will evaluate these abovementioned instruments determining their strengths and weaknesses.