Journal of Global Resources

Volume 2
January 2016
Page 109-120
ISSN: 2395-3160 (Print), 2455-2445 (Online)

15

ANALYSIS OF EVOLVING DOMESTIC ACCESS AND BENEFIT SHARING LEGISLATION IN
RUSSIA FROM THE PERSPECTIVES OF INDIGENOUS PEOPLE AND
LOCAL COMMUNITIESHasrat Arjjumend1, Sabiha Alam2, Nikolay Shishatskiy3 and Timo Koivurova4
1

Dean, FES Prakriti Karyashala Rural College, Rajasthan Campus, Rajasthan, India
Email: harjjumend@gmail.com
2
Associate Professor, Environment & Sustainable Development, MMAJ Academy of International
Studies, Jamia Millia Islamia Central University, New Delhi, India
3
Associate Professor of Socio-Economic Planning, Siberian Federal University,
Krasnoyarsk City, Russia
4
Research Professor & Director, The Northern Institute for Environmental and Minority Law,
Arctic Centre, University of Lapland, Rovaniemi, Finland

Abstract: Under Article 15 of Convention on Biological Diversity, the Nagoya Protocol came into
force in 2014 as an international regime to regulate the cross-border utilization of biologicalresources. By promoting the use of genetic resources and associated traditional knowledge, and bystrengthening the opportunities for fair and equitable sharing of benefits from their use, it isbelieved that the Nagoya Protocol binds the Parties to develop their respective ABS legislation oradministrative measures to regulate access to genetic resources and benefit sharing arising out of
its commercial utilization. In compliance with CBD obligations, Russia has been dealing with
Access and Benefit Sharing (ABS) issues under certain pre-existing legislations and administrative
measures. However, as part of the National Conservation Strategy 2014, the Russian Federation
has been developing a national ABS legislation, and preparing the signing of the Nagoya Protocol.
By conducting an opinion survey of organizations representing the indigenous people in Siberia,
North and Far East regions, the present paper is aimed at understanding primarily the recognitionof and space allowed to indigenous people and local communities in existing/evolving domestic
ABS measures of Russia, and their participation/involvement in domestic ABS processes
nationally.
Keywords: ABS Domestic Laws; Indigenous People & Local Communities; Nagoya Protocol;
Biodiversity Governance; Traditional Knowledge
Introduction
In the words of Jospeh (2010), “the genetic resources were accessed for free, based on the world
view that the resources were common heritage of humankind. But, with the increased emphasis on
intellectual property rights and private ownerships of products from genetic resources, this view
changed and the United Nations Convention on Biological Diversity (CBD) introduced a new legal
framework where the sovereign rights of States over these resources were established”.
Nevertheless, until the CBD came into existence in 1993, the practice of illegal access (piracy)
continued unabated. Patent laws have changed over the course of about 200 years, from excluding
genetic resources and the processes for producing their derivatives from patentability, to extending
patents to all forms of unique plants and animals and the processes for making the derivatives.
Whereas the people have historically considered genetic resources to be part of their open access
commons, the globalization and the evolution of patent laws has significantly changed how we view
these resources. Today, companies are accused of stealing when they take genetic resources or
the traditional knowledge associated with these resources from communities or countries without
the permission or fair compensation to the people from the communities or countries concerned.
The emergence of the term “biopiracy” reflects a shift in the perception of genetic resources from“common property resources” to “national sovereign resources”. This new way of viewing genetic109

resources and the traditional knowledge associated with these resources has led to several
controversies in the past few decades between technologically advanced countries and countries
that are rich in biodiversity. Piracy has also been rampant on the derivatives of genetic resources.
Biopiracy also involves indigenous traditional knowledge (ITK) associated with genetic resources. ITK
plays an important role in bioprospecting, the process of searching for and extracting potential
compounds having commercial value from biological resources. According to Treso (2008), theoriginators and custodians of much of this knowledge are the indigenous groups who through yearsof consistent usage through trial and error and keen observation have developed a wealth ofknowledge. With economic liberalization and the opening up of borders, the scope for transboundary
movements of genetic resources and indigenous knowledge systems are greatly enhanced(Chaturvedi, 2007). Researchers often source their materials for screening from the traders. Onceextracted, there is no need to access the natural material again, as its chemical structure can then be
synthesized (Richerzhagen, 2010). Thus the scope for challenging illegal patents becomes limited;the Indian Council for Scientific and Industrial Research (CSIR) could challenge the US patent onturmeric as India had documented evidence on its healing properties (Dhar and Anuradha, 2005).
Actually, India knew of the healing properties of turmeric before the US obtained it from India. But
such reclaim of intellectual property rights (IPR) on biological resources is not possible in the majorityof cases. It has also been very difficult for Parties to identify the instances of biopiracy.
For the first time in the history of illegal access to genetic resources by the user corporations
and countries, the CBD made provisions for fair and equitable sharing of Benefits1. For permitted
access, the users of genetic resources are obliged to share benefits arising from the utilization ofsuch resources with the providers; benefits, which help providers to develop their own sustainable
uses and to preserve biodiversity (Kamau, Fedder and Winter, 2011). Article 15.1 and 15.7 of the
CBD acknowledge the sovereign rights of States to regulate access to genetic resources as well as
their right to stipulate the sharing of benefits from the utilisation of genetic resources. Article 15.2
places a caveat requiring resource providing States not to impose restrictions that hinder access togenetic resources and thereby restrain conservation2 and sustainable use of biodiversity. Article 15.7of the CBD implies that users of genetic resources are obliged to share benefits arising from theutilization of genetic resources with provider countries (Kamau, Fedder and Winter, 2011). According
to Article 8(j), the Parties to CBD have an obligation to share benefits from the utilization of traditional
knowledge, innovations and practices of indigenous and local communities associated with genetic
resources.
In the above context, the biodiversity rich developing countries demanded an international
regime which would ensure that access to genetic resources or indigenous traditional knowledge(ITK) associated with such resources be subject to prior informed consent (PIC) from competent
national authority and mutually agreed terms (MAT) have been established. After prolonged
deliberations lasting over 16 years, the access and benefit sharing Protocol with regard to genetic
resources laid the foundation for the international regime. On the occasion of the tenth Conferenceof the Parties (COP10) to the CBD3 held on 29 October 2010 in Nagoya, Japan, the parties to the
CBD adopted the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable
Sharing of Benefits Arising out of their Utilization (the Nagoya Protocol) (CBD, 2010). There are 91
signatories and 57 Parties to the Nagoya Protocol (CBD, 2014). It came into force after the 50th
instrument of ratification was received on 12 October 2014. The Nagoya Protocol is said toadvance significantly the CBD’s third objective4 by providing a strong basis for greater legal
1
2

3

4

Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, 31 Int’l Leg. Mat. 818 (1992), Article 1.
It is assumed that access to genetic resources would promote conservation by way of benefit sharing andutilizing the benefits for investing in conservation. So the restrict access is supposed to halt conservation inthis sense.
The Convention has been adopted by almost all states, with a total of 193 Parties including the European
Union. A noticeable exception is the United States, which, as a non-Party to the CBD, cannot become a Party
to the Nagoya Protocol, cf. Article 33(1) of the Protocol.
CBD’s third objective is “to share the benefits of biological diversity fairly and equitably.”110certainty and transparency for both providers and users of genetic resources. Specific obligations
to support compliance with domestic legislation or regulatory requirements of the Party (country)
providing genetic resources and contractual obligations reflected in MAT are a significant
innovation of the Nagoya Protocol (CBD Secretariat, 2011). In addition, the Protocol’s provisions
on access to ITK held by indigenous and local communities (ILCs) when it is associated withgenetic resources will strengthen the ability of these communities to benefit from the use of theirknowledge, innovations and practices (CBD Secretariat, 2011).
Prospects for Access and Benefit Sharing in Russia
Genetic resources in Russia are utilized by businesses such as industrial microbiology, plant
breeding, breeding for commercial purposes, plants in nurseries, botanical gardens, zoos, etc. ABS
issues are very important in Russia because around 40 nationalities and ethnic groups with a totalof more than 200,000 people reside in Siberia, North and the Far East regions. They live inlandscapes highly rich in biodiversity. In Russia, 28.3 million hectares of land is owned communallyby ancestral farmers and 17.1 million hectares are reindeer pastures and forests. The issue ofgenetic resources and access to and participation in the benefits of Russia became important after
the ratification of the CBD in 1995. Although the country has not yet signed the Nagoya Protocol
and not yet established a National Focal Point for ABS, the national and domestic ABS policy isunder consideration by the Department of Environment and Environmental Security of the Ministryof Natural Resources and the Department of Science, Ministry of Economic Development andTrade of the Russian Federation. The country is studying the opportunities and intricacies of the
Nagoya Protocol and possible positions that Russia can adopt. In the Fifth National Report"Conservation of Biodiversity in the Russian Federation" (November, 2014), the special target andrelevant goals5 were set. Further, in accordance with Aichi Targets6, the national goals7 very well
support the ongoing preparations for signing the Nagoya Protocol. Additionally, the consolidation ofa national ABS regime has been difficult due to traditional and compartmentalized works. The
country’s fundamental biological research is carried out in the institutes and scientific centers of theRussian Academy of Sciences. Work on the selection and preservation of plants and animals
diversity, regulation of "access and participation" in the agricultural sector have been regulated by
the Russian Academy of Agricultural Sciences. Medical aspects of flora and fauna are dealt with by
the Russian Academy of Medical Sciences. Studies of genetic resources are held in manyeducational universities and institutes, specialized institutes of the Ministry of Agriculture, Ministryof Health and the Ministry of Natural Resources. Therefore, the ABS policy is important for Russia
in view of the huge diversity of life forms in the country and its increasing commercial utilization
within and outside the country.
Methodology
Purposive sampling was adopted for conducting the content analysis of the domestic ABS measuresof Russia, and for conducting the opinion survey. Before conducting the opinion survey, the list of
possible respondent groups from “Associations & Forums of Indigenous Peoples Movements” wasidentified as mentioned in Table.1 below:

567National goal on biodiversity conservation >By 2015, the Nagoya Protocol on Access to Genetic Resources
and the Fair and Equitable Sharing of Benefits Arising from their Utilization will be in force and operational,
consistent with national legislation. Source: http://strategy2014.ru/
In the COP-10 meeting, the parties agreed that previous biodiversity protection targets are not achieved, so
COP10 came up with new plans and targets. This10-year plan provides a set of 20 ambitious yetachievable targets, collectively known as the Aichi Targets.
National Goals (Target 16): 1. Facilitate ratification of the Nagoya Protocol in the Russian Federation; 2.
Harmonize national legislation in accordance with the implementation of Russian Federation’s commitments
under the Nagoya Protocol; 3. Define organizational structure needed for implementation of the Nagoya
Protocol in the Russian Federation; 4. Create conditions for effective implementation of the Nagoya Protocol
at the national and regional levels. Source: http://strategy2014.ru/111

Table.1
Respondent Group
A: Indigenous Peoples’
Representatives
A: Indigenous Peoples’
Representatives
A: Indigenous Peoples’
Representatives
A: Indigenous Peoples’
Representatives
A: Indigenous Peoples’
Representatives

Q TypeQ.A

Q.A

Respondents
Center for Support of Indigenous Peoples of theNorth (CSIPN)
Interregional Association of Indigenous Peoplesof North of the Krasnoyarsk Region and Evenkiya
Russian Association of Indigenous Peoples of theNorth, Siberia and the Far East (RAIPON)
Association "Aleskam"

Q.A

Inuit Society "YUPIK"

Q.A
Q.A

Q.A NAT-ABS: Format for Associations & Forums of Indigenous Peoples* About 25 different organizations were contacted in Russia for getting their opinions in Q.A questionnaire formats.

Research Techniques and Tools
This case study employed both non-reactive8 (e.g. content analysis of existing documents andsecondary information) and reactive research (e.g. questionnaire survey) techniques. Dependingon the nature, depth and importance of the variables9 and the purpose of research, the tools togather/collate the data were chosen. The aspects of respondent categories were also taken into
account when choosing the tools.
Timeframe
The opinion survey was conducted in July-August 2013. Content analysis of ABS measures andprocesses in Russia was performed between March and July 2013.
RESULTS(A)
Analysis of Pertinent Legal Systems in Russian Federation
The Russian Federation is in the process of evolving ABS legislation and its mechanisms. As partof the process of ABS system, the Ministry of Natural Resources and Environment, however,recognizes the customary laws of indigenous people and folk varieties10. Analysis of the existinglegislation in Russia is summed up in the Table.2 given below.
(B)
Analysis of Opinion Survey of Organizations Representing ILCs
Taxonomy of the responses from the indigenous organizations expressed by them in opinion
surveys is provided. The responses are thus grouped according to certain distinct, butinterconnected, variables.

8

9

10

Non-reactive research is a class of measures for which people being studied are unaware that they are part of astudy. In non-reactive or unobtrusive measures, the people being studied are not aware they are part of a study
but leave behind evidence of their social behaviour or actions ‘naturally’. Creating non-reactive measures
follows the logic of quantitative measurement, although qualitative researchers also use non-reactive
observation. Because non-reactive measures indicate a construct indirectly, the researcher needs to rule out
reasons for the observation other than the construct of interest.
Operational definition of the variable includes how the researcher systematically notes and records
observations.
The term landrace can be traced to the time when ‘modern’ varieties of cereals were introduced to European
farmers in the late nineteenth century. The farmers’ varieties of the time were called ‘landraces’ andunderstood as seeds adapted to local growing conditions through natural adaptation usually with nointentional selection. But the term was quickly adopted as generic for all farmers’ varieties including
those that are bred and maintained by active seed selection on-farm. Such farmer-bred varieties are
better termed ‘folk varieties’ (Berg, 2009).

112

B1. Participation of Indigenous and Local Communities in National Access and Benefit
Sharing Policy Making and Negotiation Processes
On asking about the involvement of ILCs in developing national ABS law/policy/guideline in Russia,
only 20 percent of the surveyed indigenous organizations/individuals (Annex.Q.A: q.1) responded
that Russia involved/involves ILCs in developing national ABS instrument to little extent. Further,
20 percent respondents opined that their country did/does not involve ILCs in developing national
ABS instrument. However, a large majority (60 percent) of the respondents did not know. Thus,
responses do not firmly establish that Russia has a good or bad record of involving respective ILCs
in making national ABS policy or law. Surveyed indigenous organizations/individuals were asked
whether their country would ‘involve the ILCs in developing the prior informed consent (PIC) andmutually agreed terms (MAT) before allowing the user countries to access and utilize genetic
resources or associated ITK held by ILCs’ (Annex.Q.A: q.2). Only 20 percent Russian respondents
opined ‘affirmatively’. Further, 20 percent respondents said that ‘no ABS instrument evolved or was
evolving in the country’. Lastly, the majority of respondents (60 percent) gave no opinion on thequestion (Annex.Q.A: q.2). The analysis of the responses of indigenous organizations/ individuals,
thus, indicates that there is only a remote possibility on the part of Russia of involving the ILCs indeveloping the PIC and MAT.
Nearly 20 percent of indigenous organizations/individuals surveyed in Russia expressed
their views that Russia will ensure participation of ILCs in establishing the mechanisms to informthe potential users about their obligations before accessing any genetic resources andassociated ITK, but that ILC participation would not be effective (Annex.Q.A: q.3). A sizeable
proportion of respondents (40 percent) said that ‘no ABS instrument evolved or was evolving in
the country’ (Annex.Q.A: q.3). Therefore, the respondents have hardly expressed their opinionsin favour of the participation of ILCs in establishing the mechanisms to inform the potential users
about their obligations, partly because no ABS instrument is in place as yet.
B2. National Recognition of Customary Laws/Institutions of Indigenous and Local
Communities
Responses vary in this context. 20 percent were ‘affirmative’ that Russia respects, recognizes andenforces the rights and ITK of her own indigenous people; and 40 percent opined that Russia
respects, recognizes and enforces the rights and ITK of her own indigenous people, but noteffectively (Annex.Q.A: q.4). Thus, the responses exhibit that the country only partially respects,
recognizes and enforces the rights and ITK of her own indigenous people.Recognition ofcustomary law/ institutions of indigenous people by country’s ABS legislation/ policy has been
confirmed by none of the surveyed indigenous organizations/individuals (Annex.Q.A: q.5). On theother hand, 20 percent responded ‘negatively’ on issues of recognition of customary
law/institutions. The majority of respondents (60 percent) were unaware of such issues(Annex.Q.A: q.5). Therefore, one can infer that the indigenous organizations/ individuals hold theopinion that their country’s ABS legislation/ policy hardly recognizes the customary law/institutionsof indigenous people.
B3. National Recognition of Indigenous and Local Communities in Issuing Prior Informed
Consent and Mutually Agreed Terms
Interestingly, 20 percent of indigenous respondents indicated that PIC is not in place in Russia’s
evolving ABS law/policy, and 20 percent say that no ABS law/policy is evolving in Russia(Annex.Q.A: q.6); while 60 percent respondents showed lack of awareness of the issue. The analysisof the responses reveals that Russia’s evolving ABS law/policy has been casual on the issue of PIC
of indigenous people and has not considered PIC as mandatory before access/utilization of genetic
resources or associated ITK.
B4. Importance to Community Protocols of Indigenous and Local Communities
Surveyed indigenous organizations/individuals were asked to respond whether their country’s ABS
legislation/policy provides for support to the concerned ILCs in order to develop community
protocols. The majority of surveyed indigenous organizations/individuals showed ignorance about113

such provisions in Russia’s evolving ABS legislation/policy (Annex.Q.A: q.7). However, 20
percent of respondents denied that there is any such provision in evolving ABS legislation/policy,
while 20 percent completely refused the existence of any ABS legislation/policy in Russia(Annex.Q.A: q.7). Thus, the responses of indigenous organizations/individuals indicate thatevolving/existing national ABS legislation/policy attach no real importance to community
protocols, if any such protocol exists.
Table. 2#

1.

AspectLaws

2.

Access to Genetic
Resources

3.

IPR Systems

4.

Protection of ITK

5.

ABS Mechanism

6.

ABS
Implementation

7.

ILCs in ABS
Mechanisms

Characteristics of Russian Legal Frameworks
There is no consolidated law on ABS. The cases are dealt invariably under thefollowing laws by different ministries/ authorities:• Patents Act, 1993
• Law on Veterinary Medicine, 1993
• Law on Selection Achievements, 1994
• Law on Copyright and Related Rights, 1994
• Law on State Regulation of Foreign Trade, 1994
• Law on Wildlife, 1995
• Law on Science and State Science and Technology Policy, 1996
• Law on Participation in the International Exchange of Information, 1996
• Law on State Regulation in the Field of Genetic Engineering, 1996
Transfer of ownership of genetic resources is governed by specific ‘contractual
agreements’ between the accessing entity and the concerned Ministry or
authority.
Multiple laws apply to the transfer of genetic resources and provide exclusively
for the protection of rights to traditional "folk" varieties of plants and animals.
Granting of special rights to breeders of plants and animals is ensured within
the ABS mechanisms. Yet, the main fare under the Intellectual Property Right(IPR) system concentrates on patent protection, the use of "confidentialcommercial information", and rights of copyright, trademarks, etc.
Although there is no single law governing the ABS system, federal laws as awhole recognize the customary laws of indigenous people and the sui generis
system of IPR. The ITK of indigenous communities is considered a subject for
IPR and thus protected by ABS mechanism, and a ‘contractual agreement’ issigned if the ITK is utilized.
The evolving ABS system follows the principles of "prior informed consent"(PIC) and "mutually agreed terms" (MAT), as envisaged in the Nagoya
Protocol. Yet, the instruments of PIC and MAT need an elaborate design andtesting in ABS cases.
Legal international cooperation in this area work out better than domestic legal
cooperation. No clear mechanism for equitable sharing of benefits between thestate, the region and the local community for the use of genetic resources has
evolved. Since there is no single law dealing with the ABS mechanisms, there
is no single agency regulating the access to genetic resources. Many agencies,
e.g. Ministry of Health, Ministry of Industry, Technology and Science, Russian
Academy of Sciences, Ministry of Economic Development and Trade, Ministryof Culture, Ministry of Education, Ministry of Natural Resources, Ministry ofAgriculture, Russian Agency for Patents and Trademarks, etc. implement thefluid procedures laid down as ABS mechanisms.
It is articulated by the Ministry of Natural Resources & Environment thatparticipation of Indigenous and Local Communities (ILC) in the benefit sharing
and access processes is ensured, but there is no established body of evidence
witnessing the active participation of ILCs. Although the social and politicalinterests of ILCs are taken into account, and ILCs are considered in-charge ofresources in their territories, the conceptual views of the interests of ILCs are
missing in the current ABS mechanisms. More inclusion of indigenous people isenvisaged.

B5. Access of Indigenous and Local Communities to Bio-resources in their Territories
The entire world is talking about access of any country to the biological resources existing in any
other country; but, on the other side, a majority of countries restrict their own ILCs to access thesame bio-resources. So, the question “does your country restrict the ILCs’ access to bio-resources114

in forests and protected areas” was floated to the respondents. Only 20 percent of surveyed
indigenous organizations/individuals confirmed the full restriction of ILCs’ access to bio-resourcesin forests and protected areas. Besides, 40 percent of respondents confirmed selective restrictionof ILCs’ access to bio-resources in forests and protected areas (Annex.Q.A: q.8). Therefore, it isrevealed from the analysis that Russia puts restrictions on their own ILCs’ access to bio-resourcesin forests and protected areas. On the question whether the country ensures the rights of ILCs to
exchange genetic resources and ITK within and amongst themselves or not, the majority ofindigenous organizations/individuals (60 percent) were not aware of the issue (Annex.Q.A: q.9). Only
20 percent of respondents said that their country partially ensures the rights of ILCs to exchange
genetic resources and ITK within and amongst themselves, and 20 percent responded that theircountry restricts ILCs exchanging genetic resources and ITK within and amongst themselves(Annex.Q.A: q.9). So, it is allowed to draw the conclusion that Russia does not support much the
ILCs in exchanging genetic resources and ITK within and amongst themselves.
B6. Fair and Equitable Sharing of Benefits
Russia’s 20 percent of surveyed indigenous organizations/individuals confirmed that their country
shares the benefits [received from user countries (usually developed countries)] with ILCs holding
the accessed/utilized genetic resource or associated ITK (Annex.Q.A: q.10). The majority (60percent) of respondents was doubtful that acquired benefits would ever be shared with ILCs
(Annex.Q.A: q.10). It is thus concluded that the indigenous organizations have little confidence
that the government would share received benefits with ILCs holding the accessed/utilized genetic
resource or associated ITK.
B7. Involvement of ILCs in Monitoring of Access to Genetic Resources
Responding to the question whether country’s ABS legislation/policy (or administrative measure)provides for the involvement of ILCs in monitoring the access and utilization of genetic resources or
associated ITK, 40 percent of surveyed indigenous organizations/individuals highlighted that no ABS
instrument has been developed in Russia (Annex.Q.A: q.11). The majority of respondents (60percent) were unaware of the issue. So, according to the majority of indigenous organizations theexisting ABS legislation/policy in Russia does not provide for the involvement of ILCs in monitoring
access and utilization of genetic resourcesor associated ITK. Only 20 percent of respondents
opined that Russia will involve the ILCs (but for namesake only) in monitoring the access andutilization of genetic resources or associated ITK by the user countries (usually developed
countries). The remaining 40 percent of surveyed respondents said that no ABS instrument isbeing evolved in the country (Annex.Q.A: q.12). The remaining 40 percent of the respondents
were unaware of the issue.
B8. Check of Biopiracy
The surveyed indigenous organizations/individuals were lastly asked “And if your country’s
government agencies/institutes or corporations are involved in illegal transfer/ transportation ofgenetic resource to user country/corporation, will the ILCs be able to check the illegal transfer(misappropriation)?” Russia’s 20 percent respondents said that their ILCs are able to check theillegal transfer (misappropriation), but with mixed results (Annex.Q.A: q.13). However, 20 percent
of respondents opined that their ILCs are able to check successfully the illegal transfer(misappropriation). Still, 20 percent respondents claimed that their ILCs are NOT able to checksuccessfully the illegal transfer (misappropriation) (Annex.Q.A: q.13). The majority of the
responses exhibits that Russia’s indigenous organizations are positive about their ILCs capacity
to check on biopiracy. Russia’s 20 percent of surveyed indigenous organizations/individuals gave
their opinion that ABS regime at the international level and national ABS regime would be able tostop to a large extent biopiracy (if any) of their country’s genetic resources and associated ITK(Annex.Q.A: q.14). Simultaneously, 60 percent of respondents indicated that international andnational ABS regime would be able to stop to some extent biopiracy (if any) of their country’s genetic
resources and associated ITK (Annex.Q.A: q.14). Similarly, 20 percent respondents from Russia
opined that international and national ABS regime would not at all be able to stop biopiracy (if any) of115their country’s genetic resources and associated ITK (Annex.Q.A: q.14). Therefore, Russia’s
surveyed indigenous organizations/ individuals were relatively pessimistic that biopiracy of genetic
resources and associated ITK would be kept in check by an international or national ABS regime.
Discussion
With the advancement of science especially biotechnology and genetic engineering, it has become
very difficult for countries to identify the possible instances of biopiracy. For the first time in the historyof illegal access to genetic resources by the user corporations and countries, the CBD madeprovisions for fair and equitable sharing of benefits. Article 15.1 and 15.7 of the CBD acknowledge
the sovereign rights of States to regulate access to genetic resources. Over 16 years of negotiations
within the CBD led to the adoption of Nagoya Protocol in 2010. In accordance with this international
ABS regime, the Parties (or potential Parties) are obliged to evolve their respective national ABS
legislation/policy frameworks or administrative measures. The present case study looks at therecognition, involvement, space, benefit sharing and acknowledgement being extended by RussianFederation to its indigenous people and local communities. The study was conducted under strict
limitations of resources and time; it was based on opinion surveys of indigenousorganizations/individuals and on the analysis of existing/evolving domestic laws or policies dealing
with ABS. As has been identified in Table.2, there is no consolidated law on ABS in Russia as yet.
The cases of access to genetic resources are dealt invariably under various laws implemented bydifferent ministries/ authorities. The most significant element in IPR systems has been the
exclusive protection of rights to traditional ‘folk’ varieties of plants and animals, and sui generis
system of IPR in the country. Some robust ABS mechanisms are in place in the country leading tohandling the ABS cases, though not in a synchronized manner. While the ILCs are given due
recognition in the existing laws, the inclusion of ILCs in the processes needs more attention in
evolving ABS legislation and its implementation.
The issue of participation in ABS policy/law making and negotiation processes is worth
understanding. The indigenous organizations of Russia opined that the participation andinvolvement of ILCs are very much required in national ABS policy & legislation making andnegotiation processes. ILCs have clearly indicated that their participation is not adequately
solicited. Thus the responses from the surveyed indigenous organizations reveal a grim picture
about the participation of ILCs in national ABS policy/law making process. Respondents havelargely expressed their opinions in favour of the participation of ILCs in establishing themechanisms to inform the potential users about their obligations; participation of ILCs wasreported low, partly because no ABS instrument is in place yet. The responses of indigenous
people are mixed about the participation and involvement of ILCs in national policy/law oradministrative measures processes. Customary laws and institutions of indigenous people haveparamount importance in conserving and managing the biological resources and associated ITK.
At the same time, the customary laws and rules of indigenous people or local communities are
seldom documented and taken into account in national laws or administrative mechanisms. The
pattern of responses also exhibits that Russia only partially respects, recognizes and enforces therights and ITK of its own indigenous people. The indigenous organizations/individuals have theopinion that their country’s ABS legislation/policy recognizes the customary law/institutions ofindigenous people very little. This opinion provides a basis for the popular perceptions that the
ILCs are given no or little importance in national regimes and even in their own territories.
The Article.6.1 and Article.6.2 of the Nagoya Protocol equip the States with PIC,
which is the most powerful tool to empower the ILCs if used effectively. The Nagoya Protocol also
provides for involving the ILCs in signing MAT agreements with the users of genetic resources or
associated ITK. Russia is entrusted to include the provisions in its domestic ABS legislation
pertaining to PIC/MAT and involvement of ILCs in signing the PIC and MAT. Yet, the opinion
survey of indigenous organizations/individuals has revealed that Russia’s evolving ABS law/policy
has been casual on the issue of PIC of indigenous people and has not considered the PIC mandatory
before access/utilization of genetic resources or associated ITK. In case the evolving ABS legislation

116

of Russia takes shape without inclusion of such clauses, the law would be incomplete and against
the spirit of Nagoya Protocol. Similarly, Article 12(3)a of Nagoya Protocol imposes the obligation
on States to support the ILCs in preparing their ‘community protocols’, but efforts for such
community protocols have been undertaken sporadically and with scant support of the States. To
substantiate this observation, the responses of indigenous organizations/individuals indicate thatevolving/existing national ABS legislation/policy in Russia does not assign real importance tocommunity protocols, if any such provision exists in the legislation. In general, the biodiversity
conservation programs have excluded the local and indigenous people from ecosystems. When
the Nagoya Protocol talks about free and unlimited access to and utilization of biological resourcesof one country by other countries and corporations of same country, the access to and utilization ofsame bio-resources by ILCs who are custodians of those resources are denied by national laws.
The same is revealed from the opinion survey that Russia put restrictions on their own ILCs’
access to bio-resources in forests and protected areas. It is pertinent to draw a conclusion that
Russia does not support much the ILCs to exchange genetic resources and ITK within and amongst
themselves. However, this needs to be further studied.
Article 5 of the Nagoya Protocol, which is the core segment of the Protocol, stresses the fairand equitable sharing of the benefits arising out of the utilization of genetic resources and associated
ITK. Parties are obliged to comply with the given clauses and to ensure the creation and enforcementof domestic legislation in that regard. Eventually, Russia has yet to evolve even a consolidated
legislation on ABS; thus the examples of fair and equitable sharing of benefits literally do not exist in
the country. Opinions of indigenous organizations led to understand that the ILCs have least
confidence that Russia Federation would share the received benefits with ILCs holding theaccessed/utilized genetic resource or associated ITK. Overall, it gives a sense that the mechanismsof sharing the benefits fairly and equitably would take quite long time to be established in the country,
provided the efforts are made seriously by the government. The Nagoya Protocol contains theprovisions of involving the ILCs in monitoring of access to genetic resources, and thus Parties are
obliged to comply with the given provisions. Otherwise too, it would be ideal if the ILCs are given
space and regulate the monitoring of users’ access to genetic resources. The analysis further
shows that Russia might involve the ILCs in monitoring the access and utilization of genetic
resources or associated ITK by the user countries, but for namesake. As a matter of fact, thebureaucracies have control over all mechanisms and processes, and there is a lack of willingness
to devolve and involve the ILCs in critical functions such as monitoring of access. Underlying the
ABS was the need of keeping in check biopiracy and the illegal utilization and patenting of genetic
resources. Under the obligations of the Nagoya Protocol the Parties are to take measures toregulate the illegitimate access and utilization of genetic resources and associated ITK. Surveyed
indigenous organizations/individuals were relatively pessimistic that the biopiracy of Russia’s
genetic resources and associated ITK would be checked by international or national ABS regime.
Additionally, the ILCs might check the biopiracy once they are educated and empowered to do so;
however, the current capacities of ILCs in Russia do vary, according to the opinions of indigenousorganizations. The responses indicate that Russia’s indigenous organizations are positive about
their ILCs being able to check biopiracy.
Conclusion
Widespread practice of concluding agreements or arrangements on benefit-sharing is missing in
Russia. Contractual arrangements (mainly in the field of industrial microbiology, pharmacology andbiotechnology) regulate the access to genetic resources and participation in the benefits of theiruse. But these agreements underrate the interests of ILCs as primary stakeholders. A robust ABS
legislation is under development in Russia. Since the advent of the Nagoya Protocol, theawareness about international ABS regime has started building up. Despite the emphasis given in
the Nagoya Protocol on the need to recognize and incorporate the customary laws and institutions,
Russia has not given adequate attention to these; hence, this provides a basis for the popular
perceptions that the ILCs are given no or little importance in evolving national ABS regime andeven in their own territories. Moreover, despite the obligations of the Nagoya Protocol of getting117

prior informed consent (PIC) before allowing any access to or utilization of biological resource andassociated ITK, Russia has been casual on the issue of PIC of indigenous people and have notconsidered the PIC mandatory before access/utilization of genetic resources or associated ITK.
Almost similar is the status of involving the ILCs in signing MAT agreements. In general, thebiodiversity conservation programs have excluded the local and indigenous people fromecosystems. Reportedly, Russia does not support much the ILCs to exchange genetic resources
and ITK within and amongst themselves. Fair and equitable sharing of benefits arising out of theutilization of genetic resources and associated ITK is the key of ABS framework. Russia still has towalk along way. Overall, the mechanisms of sharing the benefits fairly and equitably would take longtime to be established in the country, provided the efforts are made seriously by the government. The
next crucial aspect of biodiversity governance is the involvement of ILCs in monitoring of access togenetic resources. This study reveals that Russia might involve the ILCs in monitoring the accessand utilization of genetic resources or associated ITK by the user countries, but for namesake. Under
the obligations of the Nagoya Protocol the Parties (and potential Parties) are to take measures toregulate the illegitimate access and utilization of genetic resources and associated ITK. Russia hassome hope that the biopiracy of genetic resources and associated TK would be checked. Afterall, without checking biopiracy the objectives of ABS cannot be realized adequately.
Acknowledgement
The authors acknowledge the support for language corrections provided by Dr. Valentyna
Savchyn, Associate Professor, Faculty of Foreign Languages, Lviv National University of Ukraine.
To conduct studies in Russia, the partial support extended to the first author by Asia Pacific
Network for Global Environmental Change (APN), Japan is also duly acknowledged.
References
1. Berg, T., (2009) Landraces and folk varieties: a conceptual reappraisal of terminology.
Euphytica (2009) 166:423–430.
2. CBD Secretariat, (2011) Nagoya Protocol on Access to Genetic Resources and the Fair
and Equitable Sharing of Benefits arising from their Utilization to the Convention on
Biological Diversity. UNEP, Montreal.
3. Chaturvedi, Sachin, (2007) “TRIPS, Indigenous Knowledge and Geographical Indications”.
World Trade and Development Report, RIS, New Delhi.
4. Department of Environmental Protection and Ecological Safety of the Ministry of Natural
Resources, (2012) Thematic Report on Access to Genetic Resources. Government of
Russian Federation, Moscow.
5. Dhar, Biswajit and Anuradha R.V., (2005) Access, Benefit Sharing, Intellectual Property
Rights: Establishing Linkages between the Agreement on TRIPS and the Convention on
Biological Diversity, available at http://wtocentre.iift.ac.in/Papers/2.pdf as on 27th
November 2010.
6. Jospeh, Reji K., (2010) International Regime on Access and Benefit Sharing: Where Are
We Now? Asian Biotechnology and Development Review,Vol. 12 No. 3, pp 77-94.
7. Kamau, Evanson C., Fedder, Bevis and Winter, Gerd, (2011) “The Nagoya Protocol on
Access and Benefit Sharing: What is New and What are the Implications for Provider andUser Countries and the Scientific Community”, Law, Environment and Development
Journal (LEAD), Vol. 6/3.
8. Richerzhagen, Carmen, (2010) Protecting Biological Diversity: The Effectiveness of Accessand Benefit Sharing Regimes. Routledge.
9. Treso, Gabriella, (2008) “Patent Disclosure of Origin for Genetic Resources: Options andPossible Solutions”. Research paper, LLM in Intellectual Property, Turin University.

118Annex. Q. A: National Access and Benefit-Sharing Regime: Opinions of Indigenous
Organizations
RESPONDENTSQUESTIONS OF OPINION SURVEY

Response (In parentheses:
No. of Respondents = Total 5)

Response
Percentage

B1. PARTICIPATION OF ILCs IN NATIONAL ABS POLICY MAKING AND NEGOTIATION PROCESSES
1. Has your country involved the
1. Yes, our country involved/involves ILCs in developing 1.
indigenous people and local
national ABS instrument to a large extent
2.
communities (ILCs) in developing
2. Yes, our country involved/involves ILCs in developing 3.
national ABS instrument to little extent(1)national ABS law/policy/guideline?
4.
3. No, our country did/does not involve ILCs in
5.
developing national ABS instrument (1)4. No ABS instrument is evolved or evolving in mycountry
5. I am not aware (3)2. Will your country involve the ILCs in
1. Yes, our country would involve ILCs effectively in1.
developing the prior informed
developing the PIC and MAT.
2.
consent (PIC) and mutually agreed
2. Yes, our country would involve ILCs in developing the 3.
PIC and MAT, but for namesake only. (1)terms (MAT) before allowing the4.
5.
user countries to access & utilize
3. No, our country would not involve the ILCs at all in
genetic resources or associated ITK
developing the PIC and MAT.
held by ILCs?
4. No ABS instrument has been developed or isdeveloping in my country (1)5. I cannot say. (3)1. Yes, our country will ensure effective participation of
3. Do you think that your country will1.
ensure effective participation of yourour ILCs.
2.
3.
ILCs in establishing the
2. Yes, our country will ensure participation of our ILCs,
but that would not be effective. (1)mechanisms to inform the potential
4.
users about their obligations before
3. No ABS instrument has been developed or isdeveloping in my country. (2)accessing any genetic resources
4. I am not aware. (2)and associated ITK?
B2. NATIONAL RECOGNITION OF CUSTOMARY LAWS/INSTITUTIONS OF ILCs
1. Yes, our country does. (1)4. Does your country truly respect,
1.
2. Yes, but not truly. (2)recognize and enforce the rights
2.
3. No. (1)3.
and ITK of your own indigenous
4. I don’t know. (1)people?
4.
5. Does your country’s ABS
1. Yes, our existing/evolving ABS legislation/policy has
1.
legislation/policy recognize thesuch a provision.
2.
customary law/institutions of your
2. No, there is no such provision in our existing/evolving 3.
ABS legislation/policy. (1)indigenous people?
4.
3. No ABS instrument has been developed or isdeveloping in my country (1)4. I am not aware. (3)B3. NATIONAL RECOGNITION OF ILCs IN ISSUING PIC AND MAT
6. Does your country’s ABS
1. Yes, the PIC is mandatory in our existing/evolving
1.
legislation/policy make the PIC
ABS legislation/policy.
2.
mandatory before access/utilization
2. Yes, the PIC is mentioned in our existing/evolving
3.
of genetic resources or associatedABS legislation/policy, but it is not mandatory.
4.
ITK?
3. No, there is no mention of PIC in our existing/evolving 5.
ABS legislation/policy. (1)4. No ABS instrument has been developed or isdeveloping in my country (1)5. I don’t know. (3)B4. IMPORTANCE TO COMMUNITY PROTOCOLS OF ILCs
7. Does your country’s ABS
1. Yes, our existing/evolving ABS legislation/policy has
1.
legislation/policy provide forsuch a provision.
2.
supporting the concerned ILCs to
2. No, there is no such provision in our existing/evolving 3.
ABS legislation/policy. (1)4.
develop community protocols ofyour indigenous people?
3. No ABS instrument is evolved or evolving in mycountry (1)4. I am not aware. (3)B5. ACCESS OF ILCs TO BIORESOURCES IN THEIR TERRITORIES

119

0%
20%
20%
0%
60%

0%
20%
0%
20%
60%

0%
20%
40%
40%

20%
40%
20%
20%
0%
20%
20%
60%

0%
0%
20%
20%
60%

0%
20%
20%
60%

RESPONDENTSQUESTIONS OF OPINION SURVEY
8.

Does your country restrict the ILCs’
access to bioresources in forestsand protected areas?

Response (In parentheses:
No. of Respondents = Total 5)
1.

Yes, our country fully restricts our ILCs’ access tobioresources in forests and protected areas (1)2. Yes, our country selectively restricts our ILCs’ accessto bioresources in forests and protected areas. (2)3. No, our country does not restrict our ILCs’ access tobioresources in forests and protected areas.
4. I cannot say. (2)9. Does your country ensure the rights
1. Yes, our country fully ensures the rights of ILCs toof ILCs to exchange genetic
exchange genetic resources and ITK within andresources and ITK within andamongst themselves.
amongst themselves?
2. Yes, our country partially ensures the rights of ILCs to
exchange genetic resources and ITK within andamongst themselves. (1)3. No, our country restricts our ILCs exchanging genetic
resources and ITK within and amongst themselves.
(1)
4. I cannot say. (3)B6. FAIR AND EQUITABLE SHARING OF BENEFITS
10. Will your country further share the
1. Yes, our country would share the received benefits
benefits [received from user
with ILCs judiciously.
2. Yes, our country would share the received benefits
countries (usually developedwith ILCs,but only a fraction. (1)countries)] with your ILCs holding
the accessed/utilized genetic
3. It is likely that our country would share the received
benefits with ILCs. (3)resource or associated ITK?
4. No, our country would not share the benefits withILCs.
5. I don’t know. (1)B7. INVOLVEMENT OF ILCs IN MONITORING OF ACCESS TO GENETIC RESOURCES
11. Does your country’s ABS
1. Yes, our existing/evolving ABS legislation/ policy orlegislation/policy (or administrative
administrative measure provides for the involvement
measure) provide to involve yourof our ILCs in monitoring of the access/ utilization of
ILCs in monitoring of the accessgenetic resources by the users?
and utilization of genetic resources
2. No, there is no such provision in our existing/evolving
or associated ITK by the users?
ABS legislation/policy or administrative measure.
3. No ABS instrument has been developed or isdeveloping in my country (2)4. I do not know. (3)12. Will your country involve the ILCs in
1. Yes, our country would effectively involve the ILCs inmonitoring the access and utilization
monitoring.
of genetic resources or associated
2. Yes, our country would involve the ILCs in monitoring,
but for namesake. (1)ITK by the user countries (usuallydeveloped countries)?
3. No ABS instrument is evolved or evolving in mycountry (2)4. I do not know. (2)B8. CHECK OF BIOPIRACY
13. And if your country’s government
1. Yes, our ILCs are able to check successfully for theillegal transfer (misappropriation). (1)agencies/institutes or corporations
are involved in illegal transfer/
2. Yes, our ILCs are able to check for the illegal transfer(misappropriation), but with mixed results. (1)transportation of genetic resource touser country/corporation, will your
3. No, our ILCs are NOT able to check successfully forthe illegal transfer (misappropriation). (1)ILCs be able to check the illegal
4. I cannot say. (2)transfer (misappropriation)?
1. Yes, to large extent. (1)
14. Do you think that the ABS regime at
2. Yes, to some extent. (3)international level and national ABS
3. No, not at all. (1)regime be able to stop the biopiracy(if any) of your country’s genetic
4. I cannot say.
resources and associated ITK?

120

Response
Percentage
1.
2.
3.
4.

20%
40%
0%
40%

1.
2.
3.
4.

0%
20%
20%
60%

1.
2.
3.
4.
5.

0%
20%
60%
0%
20%

1.
2.
3.
4.

0%
0%
40%
60%

1.
2.
3.
4.

0%
20%
40%
40%

1.
2.
3.
4.

20%
20%
20%
40%

1.
2.
3.
4.

20%
60%
20%
0%