Article 15: Access to Genetic Resources
Chapter Twenty-Three
Syllabus topic 1, "Bio-diversity"
Pages 69 to 71 of 818
In one line
Article 15 says that a country decides who may take its genetic resources, that the taker must have consent given in advance and on agreed terms, and that the benefits must come back.
In exam wording: article 15 of the Convention on Biological Diversity 1992 has seven paragraphs: paragraph 1 recognises the sovereign rights of States and vests the authority to determine access in national governments subject to national legislation; paragraph 2 requires Parties to endeavour to facilitate access and not to impose restrictions running counter to the Convention's objectives; paragraph 3 limits the resources covered to those provided by countries of origin or Parties that acquired them in accordance with the Convention; paragraph 4 requires access to be on mutually agreed terms; paragraph 5 requires prior informed consent of the providing Party unless otherwise determined by it; paragraph 6 requires research to be carried out with the full participation of and where possible in the providing Party; and paragraph 7 requires measures aimed at fair and equitable sharing of the results of research and of the benefits of commercial utilisation, upon mutually agreed terms.
The two terms every question turns on
Prior informed consent. Consent given by the providing country before the resource is taken, on the basis of full information about what is proposed. Three elements: it is prior, it is informed, and it is consent, so it can be refused.
Mutually agreed terms. The conditions on which access is granted, negotiated between the provider and the user. In substance a contract, and the place where benefit sharing is fixed.
Neither phrase is defined in the Convention. Both are defined in practice by the providing country's own legislation, which is what paragraph 1 means when it says access is subject to national legislation.
Paragraph by paragraph
15(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. This is the paragraph that makes the Indian Act possible and necessary.
15(2). Each Party shall endeavour to create conditions to facilitate access for environmentally sound uses by other Parties and not to impose restrictions that run counter to the objectives of the Convention. An obligation of conduct on the provider, and the only counterweight to sovereignty in the article.
15(3). The genetic resources being provided are only those provided by Parties that are countries of origin, or by Parties that acquired them in accordance with the Convention. This excludes pre-Convention collections.
15(4). Access, where granted, shall be on mutually agreed terms.
15(5). Access shall be subject to prior informed consent of the providing Party, unless otherwise determined by that Party. A Party may waive it; India has not.
Article 15: Access to Genetic Resources
15(6). Each Party shall endeavour to develop and carry out scientific research based on genetic resources provided by other Parties with the full participation of, and where possible in, those Parties. This is the origin of section 21(2)(d) of the Indian Act, association of Indian scientists and benefit claimers with research and development.
15(7). Each Party shall take legislative, administrative or policy measures with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from commercial and other utilization of genetic resources with the providing Party, upon mutually agreed terms.
What article 15 does not do
It creates no right of access. Paragraph 2 asks a Party to endeavour to facilitate access; it gives no applicant a claim.
It fixes no price. The benefit is whatever the mutually agreed terms provide.
It gives the provider no remedy abroad. If material leaves the country without consent, the provider's own courts have no reach over the user's activity in the user's country. That gap is what the Nagoya Protocol of 2010 was written to close, through compliance measures and checkpoints in the user country.
The Indian delivery
| Paragraph | Indian provision |
|---|---|
| 15(1) | Section 8, the National Biodiversity Authority; the Act as a whole |
| 15(4) and 15(5) | Section 3 for foreign persons; section 7 for Indians; section 19 for the application and approval |
| 15(6) | Section 21(2)(d), association of Indian scientists, benefit claimers and local people with research |
| 15(7) | Section 21, and the Regulations of 2025 that set the terms |
Worked example
A Japanese company wants a marine bacterium from Indian waters and offers a one-time payment. Trace article 15 through Indian law.
Is it within Indian jurisdiction? Section 2(gb) of the 2002 Act, inserted in 2023, defines India to include territorial waters, the seabed and sub-soil, the continental shelf, the exclusive economic zone and other maritime zones under the Act of 1976, and the air space. So a bacterium from the exclusive economic zone is a biological resource occurring in India.
Prior informed consent. The company is a body corporate not incorporated in India, so section 3(2) applies and section 3(1) requires the previous approval of the National Biodiversity Authority before it obtains the resource for research or commercial utilisation. The application is made under section 19(1).
Mutually agreed terms. Section 19(3) allows approval subject to such terms and conditions as the Authority thinks fit, including charges by way of royalty. Section 19(3A) requires the Authority, while granting approval, to determine the benefit sharing in the manner specified by regulations.
The form of the benefit. Section 21(2) lists six forms: joint ownership of intellectual property rights, transfer of technology, location of production or research units in areas that will improve the living standards of benefit claimers, association of Indian scientists and benefit claimers with the research, a venture capital fund, and monetary compensation and other non-monetary benefits.
Article 15: Access to Genetic Resources
Where the money goes. Section 21(3) directs the amount to the National Biodiversity Fund, with a proviso allowing direct payment to an identified individual, group or organisation from whom the resource or knowledge was accessed.
Why a one-time payment may not be enough. The Authority is not bound to accept the applicant's offer. Section 19(3A) also lets it prohibit or restrict the activity if it thinks the activity detrimental or contrary to the objectives of conservation, sustainable use or fair and equitable sharing, for reasons recorded in writing and after a hearing.
Quick revision
- Seven paragraphs; the key ones are 15(1), 15(4), 15(5) and 15(7).
- Prior informed consent: prior, informed, and capable of refusal.
- Mutually agreed terms: the contract, and where the benefit is fixed.
- 15(3) excludes pre-Convention collections.
- 15(6) is the origin of the Indian requirement to associate Indian scientists with the research.
- Article 15 gives the provider no remedy in the user's country; the Nagoya Protocol addresses that.
Test yourself
1. Can a Party dispense with prior informed consent? Yes. Paragraph 5 requires it "unless otherwise determined by that Party", so the providing country may decide not to require it. India requires it, through sections 3 and 19 of the Biological Diversity Act 2002.
2. Why does article 15 not help against material taken before 1993? Because paragraph 3 restricts the genetic resources being provided to those provided by Parties that are countries of origin or that acquired them in accordance with the Convention. Material collected before the Convention was in force was not acquired in accordance with it.
3. Name three forms benefit sharing may take under Indian law. Any three of the six in section 21(2): joint ownership of intellectual property rights; transfer of technology; location of production, research and development units in areas that will improve the living standards of benefit claimers; association of Indian scientists, benefit claimers and local people with research and development; setting up a venture capital fund; and monetary compensation and other non-monetary benefits.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.