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The ABS Framework in Denmark

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The ABS Framework in Denmark chapter 2 The ABS Framework in Denmark Veit Koester The Kingdom of Denmark (the (Danish) Realm) consists of Denmark, the Faroe Islands and Greenland.1 The Faroe Islands and Greenland have legisla- tive and executive competences covering almost all fields of civil and public law,2 and none of them are included in the Danish membership of the EU. This is, at least partly, the reason why there is, in respect of the ABS framework in the Danish Realm, a need to differentiate between the frameworks in Denmark, the Faroe Islands and Greenland, although all parts of Denmark are included in the Danish ratification of the 1992 Convention on Biological Diversity (CBD).3 The present paper, focusing on the ABS framework in Denmark, however, starts by providing an overview of the frameworks in all parts of the Realm. Part II is dealing with Danish property and intellectual property law and Part III and Part IV with respectively Denmark as a provider and user country, while Part V contains some preliminary conclusions. 1 The Danish Constitutional Act (the Constitution) applies pursuant to its Section 1 to all parts of the Kingdom. 2 The relevant acts are lov nr. 137 af 23. Marts 1948 om Færøernes hjemmestyre (Act on Home Rule of the Faroe Islands) and lov nr. 473 af 12. juni 2009 om Grønlands Selvstyre (Act on Greenland Self-Government). 3 Denmark ratified the CBD on 31 December 1993. Since the CBD also applies to the Faroe Islands and Greenland they are being informed by the Danish Nature Agency under the Ministry of Environment about important negotiations in the framework of the Convention (e.g. the ABS negotiations). The Faroe Islands and Greenland may, if they so wish, provide comments or observations to meeting documents or be represented in Danish delegations to such negotiations. If relevant, the Faroe Islands and Greenland are being involved in the preparation and drafting of Danish bills. This, however, was not relevant in the context of the Danish ABS Act (see Part I below), because ABS belong to the legislative and executive com- petences of those parts of the Realm, and the Act, accordingly, excludes the Faroe Islands and Greenland from its territorial application (Section 17). Such provision is obligatory when an act does not apply to the Faroe Islands and/or to Greenland. On the exclusion of those parts of Danish Realm from the Danish ratification of the Nagoya Protocol on ABS, see Part I below at notes 11–13. Of the 183 members of the Danish Parliament two members are elected by the Faroe Islands and two by Greenland. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004293212_004 <UN> The ABS Framework in Denmark 55 I Main Traits of the ABS Frameworks in the Danish Realm The main traits of the current situation regarding specific ABS frameworks in the various parts of the Realm may be outlined broadly as follows. The ABS framework in Denmark is partly governed by Act No. 1375 of 23 December 2012 on Sharing of Benefits Arising from the Utilization4 of Genetic Resources (the Danish ABS Act). The Act provides for some basic user require- ments, i.e. compliance with Articles 6 and 7 of the Nagoya Protocol, and con- firms that Denmark does not require prior informed consent (PIC) for access to genetic resources in Denmark.5 The Faroese Parliament (Lagting) has not adopted any special ABS-legislation, nor has it taken any specific position as to whether to demand PIC regarding access to genetic resources in the Faroe Islands. The Greenland Parliament (Inatsisartut) has promulgated Act No. 20 of 20 November 2006 on Commercial and Research-Related Use of Biological Resources.6 Under Section 6, subsection 1 of Part 3 on survey licenses: [a]ny acquisition, collection or survey of biological resources in connec- tion with research or with a view to possible subsequent commercial uti- lization shall be subject to prior issue of a survey license [by the Greenland Government].7 Hence, access to genetic resources in Greenland is governed by PIC. There are no provisions on access to traditional knowledge associated with genetic resources held by indigenous and local communities which is probably due to the nature of the Greenland society being per se an indigenous community. And no legislation regarding user requirements exists in Greenland. 4 An official translation of the Act into English would probably replace the “z” by a “s.” Due to the spelling of this word and similar words in the Protocol and in order to be consistent the word is in the present paper generally being spelt with a “z.” 5 The Danish ABS entered into force on 12 October 2014. On the entry into force, see Part IV.2 below. 6 Landstingslov nr. 20 af 20. November 2006 om kommerciel og forskningsmæssig anvendelse af biologiske ressourcer. 7 Biological resources are in Section 3 (1) of the Act defined as “all kinds of genetic resources, organisms or parts thereof, or any other biotic component of ecosystems with actual or potential use of value for humanity.” Part 4 of the Act contains provisions on the publication of survey results etc., Part 5 on patenting results etc., Part 6 on commercial utilization, Part 8 on withdrawal of survey license and/or commercial license, while actions being subject to a fine are outlined in Part 10. <UN>.
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