PART THREE: CONDITION OF ACCESS
ABS Proclamation: መነሻ | Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7
11/ Requirement of Permit
1/ Without prejudice to the provisions of Sub-Article 2(a) of Article 4 of this Proclamation, no person shall access genetic resources or community knowledge unless in possession of written access permit granted by the Institute based on prior informed consent.
2/ Unless otherwise explicitly expressed, the granting of permit to access genetic resources shall not be construed to constitute permit to access the community knowledge associated therewith and vice versa.
3/ Without prejudice to the provisions of Sub-Article 2(b) of Article 4 of this Proclamation no person shall export genetic resources out of Ethiopia unless in possession of permit granted by the Institute to this effect.
4/ Not with standing the provisions of Sub-Article (1) of this Article organs of the state which are empowered by law to conserve genetic resources may not be required to obtain access permit from the Institute to collect genetic resource or community knowledge in the discharge of their duties; provided however, that they shall not transfer the genetic resource or community knowledge to third persons or export same out of Ethiopia unless they are given explicit permit by the Institute, While collecting genetic resources and community knowledge, employees of such institutions must carry with them a letter to this effect.
12. Basic Pre-Conditions of Access
1/ Access to genetic resources shall be subject to the prior informed consent of the Institute.
2/ Access to community knowledge shall be subject to the prior informed consent of the concerned local community.
3/ The state and the concerned local community shall obtain fair and equitable share from benefits arising out of the utilization of genetic resources and community knowledge accessed.
4/ An access applicant who is a foreigner shall present a letter from the competent authority of his national state or that of his domicile assuring that it shall uphold and enforce the access obligations the applicant.
5/ In cases of access by foreigners, the collection of genetic resources and community knowledge shall be accompanied by the personnel of the Institute or the personnel of the relevant institution to be designated by the Institute.
6/ The research based on the genetic resources accessed shall be carried out in Ethiopia and with the participation of Ethiopian nationals designated by the Institute, unless where it is impossible.
7/ Where the research based on the genetic resources accessed is permitted to be carried out abroad, the institution sponsoring and/or hosting the research shall give a letter of assurance that they shall observe the access obligations attached thereto.
13. Conditions for Denial of Access
The Institute may deny access to genetic resources; where:
1/ the access requested is in relation to the genetic resource of an endangered species;
2/ the access may have adverse effects upon human health or the cultural values of the local community;
3/ the access may cause un desirable impact on the environment;
4/ the access may cause danger of loss of ecosystem;
5/ the access is intended to use genetic resources for purposes contrary to the national laws of Ethiopia or the international treaties to which Ethiopia is a party;
6/ the applicant has violated hither to access conditions or access agreements.
14 Issuance of Access Permit
1/ A person who wants to obtain permit to access genetic resources or community knowledge shall present an application in writing to the Institute. The conditions and procedure in accordance with which access applications shall be presented examined and prior informed consent shall be given shall be specified by regulations.
2/ Upon giving of prior informed consent, the Institute shall, based on the provisions of this proclamation, negotiate and conclude genetic resources access agreement.
3/ Where the access application involves access to community knowledge, the Institute shall negotiate and conclude the access agreement based on the prior informed consent of the concerned local community to that effect.
4/ The Institute shall not grant permit for exporting genetic resources out of Ethiopia unless the condition provided under Article 12(6) of this Proclamation is met.
15. Special access Permit
1/ the Institute may, without the need to strictly follow the access procedure provided for in this Proclamation, grant specific access permit to Ethiopia national public research and higher learning institutions and intergovernmental institutions based in the country, so that they have facilitated access to genetic resources and community knowledge for purpose of development and academic research activities they undertake within the country. When the Institute grants specific access permits to such institutions, it shall determine, as appropriate, the obligations they shall have while having access under such permit.
2/ An access to genetic resources under a multilateral system of access to which Ethiopia is a party shall be made in accordance with the conditions and procedure specified the roof. The condition and procedure in accordance with which access to genetic resources under multilateral systems shall be implemented shall be determined by regulations.
16. Contents of Access Agreement
An access agreement shall specify, among other things, the following issues:
1/ the identity of the parties to the agreement;
2/ the type and quantitative description of the genetic resource permitted to be accessed;
3/ the description of the community knowledge permitted to be accessed or associated with the genetic resource to be accessed;
4/ the locality where the genetic resource or community knowledge is to be collected or the person providing same;
5/ the institution with which the sample of the genetic resource and the description of community knowledge accessed shall be deposited;
6/ the intended use the genetic resource or community knowledge;
7/ the relationship of the access agreement with existing or future access agreements on the same genetic resource or community knowledge;
8/ the relevant institution designated by the Institute to participate in the collection of and/or the research based on the genetic resource to be accessed and be in charge of monitoring the implementation of the access agreement;
9/ the benefit the state shall get from the access to genetic resources;
10/ where the agreement involves access to community knowledge, the benefit the concerned local community shall obtain from the use thereof;
11/ the duration of the access agreement;
12/ dispute settlement mechanisms; and
13/ the obligations the access permit holder shall have under this Proclamation.
17. Obligations of Access Permit Holder
A person who shall be given an access permit shall have the following obligations:
1/ deposit the copy of the access permit granted to him with the relevant regional institution in the district where the genetic resource is to be collected and show the access permit up on request;
2/ not deplete population of farmers planting stock or wild species or to remove significant genetic variation from local gene pool during collection;
3/ where the genetic resource is to be collected from protected areas, to observe the rules and regulations of the administration of the protected area;
4/ deposit the sample of the genetic resources collected and the collection data, and the description of community knowledge accessed with the Institute or the relevant institution the Institute may designate;
5/ observe the type and quantitative limits of the genetic resource permitted to access;
6/ upon request, supply to the Institute a sample from the genetic resource and copy of the description of the community knowledge accessed;
7/ submit to the Institute regular status reports of the research; and where genetic resource is collected repeatedly, follow up the environmental and socio-economic impact of the access and submit a report thereon;
8/ inform the Institute in writing of all the findings of the research and development based on the genetic resource and community knowledge accessed;
9/ not transfer the genetic resource and community knowledge accessed to any other third party or use same for any purpose other than that originally intended, without first notifying to and obtaining written authorization from the Institute;
10/ return any unused genetic material at the end of the planned research or upon termination of the access agreement;
11/ not transfer to third parties the access permit or the rights and obligations there under without obtaining the consent of the Institute to that effect;
12/ where he seeks to acquire intellectual property right over the genetic resources accessed or parts thereof, negotiate new agreement with the Institute based on the relevant laws of Ethiopia;
13/ not apply for a patent or any other intellectual property protection over the community knowledge accessed without first obtaining explicit written consent from the Institute;
14/ recognize the locality where the genetic resource or community knowledge accessed from as origin in the application for commercial property protection of the product developed there from;
15/ share the benefit that may be obtained from the utilization of the genetic resource or community knowledge accessed to the state and the concerned local communities;
16/ respect the laws of the country, particularly those relating to sanitary control, biosafety and protection of the environment.
17/ respect the cultural practices, traditional values and customs of local communities;
18/ observe the terms and conditions of the access agreement.
18. Benefit Sharing
1/ The kind and the amount of the benefit to be shared by the state and local communities from access to genetic resources or community knowledge shall be determined case by case in each specific access agreements to be signed.
2/ The remaining portion of the monetary benefit from access to genetic resources, after deducting the share of the local community as determined pursuant to Article 9 (1) of this Proclamation, shall be allocated for conservation of biodiversity and the promotion of community knowledge. The conditions how the money shall be put to such use shall be determined by regulation;
3/ The sharing of non-monetary benefits from access to genetic resources among the state and the concerned local community shall be specified in each specific access agreement taking into account the kinds of benefits agreed to share with the access permit holder.
19. Types of Benefit
The benefit to be shared from an access to genetic resources and community knowledge may include the following modes:
1/ License fee;
2/ upfront payment;
3/ milestone payment;
5/ research funding;
6/ joint ownership of intellectual property;
7/ employment opportunity;
8/ participation of Ethiopian nationals from the Institute or the relevant institutions in the research based on the genetic resources or community knowledge accessed;
9/ priority of supply the raw material of genetic resource required for producing products there form;
10/ access to products and technologies developed from the use of genetic resource or community knowledge accessed.
11/ training, both at institutional and local communities levels, to enhance local skills in genetic resources conservation, evaluation, development, propagation and use.
12/ provision of equipment, infrastructure and technology support; and
13/ any other benefit as appropriate