Impact Assessment, Access and Benefit Sharing

In one line

Article 15 is the bargain at the centre of the convention: access to genetic resources on the provider's terms, in exchange for a share of what is made from them.

In exam wording: article 15 of the Convention on Biological Diversity recognises the sovereign rights of States over their natural resources and provides that the authority to determine access to genetic resources rests with the national governments and is subject to national legislation; access, where granted, shall be on mutually agreed terms and subject to prior informed consent of the Contracting Party providing the resources unless otherwise determined by that Party; and each Party shall take measures with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilisation of genetic resources with the Party providing them.

Article 14: impact assessment

Before the access provisions, the convention's own assessment article, which is one of the treaty sources of the customary rule discussed in Module I.

Paragraph 1 requires each Party, as far as possible and as appropriate, to:

• introduce appropriate procedures requiring environmental impact assessment of proposed projects likely to have significant adverse effects on biological diversity, with a view to avoiding or minimising them, and where appropriate allow for public participation;
• introduce appropriate arrangements to ensure that the environmental consequences of its programmes and policies likely to have significant adverse effects are duly taken into account;
• promote, on the basis of reciprocity, notification, exchange of information and consultation on activities likely to significantly affect the biological diversity of other States or areas beyond national jurisdiction, by encouraging bilateral, regional or multilateral arrangements;
• in the case of imminent or grave danger or damage originating under its jurisdiction or control to biological diversity within the area under the jurisdiction of other States or beyond national jurisdiction, immediately notify the potentially affected States and initiate action to prevent or minimise the danger or damage; and
• promote national arrangements for emergency responses.

Paragraph 2 provides that the Conference of the Parties shall examine, on the basis of studies to be carried out, the issue of liability and redress, including restoration and compensation, for damage to biological diversity, except where such liability is a purely internal matter.

That paragraph is the biodiversity convention's version of Stockholm Principle 22, and like Principle 22 it has produced only a supplementary protocol on liability under the Cartagena Protocol, not a general regime.

Article 15: access

Paragraph 1. Recognising the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.

Paragraph 2. Each Party shall endeavour to create conditions to facilitate access for environmentally sound uses and not to impose restrictions that run counter to the objectives of the Convention.