The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity (2010).

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity (2010).

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity is a legally binding subsidiary agreement to the Convention on Biological Diversity which aims to further develop the legal ABS framework provided by the CBD.[1] The protocol provides a strong basis for greater certainty and transparent legal framework for the effective implementation of one of the three objectives of the CBD: the fair and equitable sharing of benefits arising out of the utilization of genetic resources.[2]

According to Article 1[3], the CBD has three main objectives:

·         Conservation of biological diversity;

·         Sustainable use of its components; and

·         Fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

The broad CBD objectives are a consequence of the contradicting interests of developing and developed countries.[4] Throughout the negotiation process, many States, particularly the technology rich north who are the users of the resources[5] were not willing to accept an instrument that focused only on biodiversity conservation. On the other hand, the majority of developing countries who are the custodians and owners of the biodiversity[6] pushed for the more directly use-oriented provisions, as well as made their participation in the negotiation conditional on the inclusion on the convention the obligations and measures on three types of access[7]

1.      access to genetic resources subject to national authority;

2.      access to relevant technology, including biotechnology; and

3.      access for the providing States to benefits ultimately gained from the use of genetic material in the development of biotechnology.

In the end, access to genetic resources and the fair and equitable sharing of the benefits arising out of their utilization - in short, ABS - was introduced as the third objective of the CBD.[8] With an aim to further advance the implementation of the third (ABS) objective of the convention, in 2002, the World Summit on Sustainable Development called for the negotiation of an international regime, within the framework of the CBD, to promote and safeguard the fair and equitable sharing of benefits arising from the utilisation of genetic resources.[9] In its seventh meeting, in 2004, the Convention’s Conference of the Parties reacted by assigning its Ad Hoc Open-ended Working Group on Access and Benefit-sharing to elaborate and negotiate an international regime on access to genetic resources and benefit-sharing in order to effectively implement article 15 and 8(j)[10] of the convention and its objectives.[11] Finally, after six years of negotiation, The Nagoya Protocol on ABS was adopted on 29 October 2010 in Nagoya, Japan and will enter into force 90 days after the fiftieth instrument of ratification.[12]

Objective

The objective of the protocol “is the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components.”[13]

The Protocol aims to set an international, legally binding framework to promote a transparent and effective implementation of the ABS concept at the regional, national and local level in the future. It lays down a model/framework for regulating the process of obtaining access to biogenetic resources and traditional knowledge associated with such resources.[14] It provides general obligations upon contracting parties on sharing the benefits arising from the utilization of such resources and knowledge as well as confers obligation to the parties to respect the domestic legislation and regulatory requirements related to ABS, where the resources or knowledge have been acquired.[15] Furthermore, the protocol creates incentives to conserve and sustainably use genetic resources by helping to ensure benefit-sharing, and therefore enhances the contribution of biodiversity to human well being and sustainable development. [16]

Scope

The Protocol applies to genetic resources within the scope of article 15 of the convention[17] and traditional knowledge associated with such resources[18] that are covered by the CBD, and to the benefits arising from their utilization.[19]

Access Obligations

The issue of access to genetic resources and traditional knowledge associated with genetic resources forms a core part of the ABS concept. It is addressed in different parts of the Nagoya Protocol. Article 6(1) reiterates that states have sovereign rights over their natural resources. It confers that access to genetic resources is subject to Prior Informed Consent (PIC) granted by the provider country, unless otherwise determined.[20]With the aim of ensuring that the PIC or approval and involvement of indigenous and local communities (ILCs) is obtained for access to genetic resources where they have the established right to grant access to such resources, each party shall take appropriate measures in accordance with domestic law.[21]Article 6(3) aims at creating more legal certainty by introducing a number of measures that must be taken by all Parties requiring PIC at the domestic level[22]:

·         Create legal certainty, clarity and transparency

·         Provide fair and non-arbitrary rules and procedures

·         Establish clear rules and procedures for prior informed consent and mutually agreed terms

·         Provide for issuance of a permit or equivalent when access is granted

·         Create conditions to promote and encourage research contributing to biodiversity conservation and sustainable use

·         Pay due regard to cases of present or imminent emergencies that threaten human, animal or plant health

·         Consider the importance of genetic resources for food and agriculture for food security

Article 7 regulates the access to traditional knowledge associated with genetic resources and states that, in terms of access to traditional knowledge associated with genetic resources that is held by ILCs, each party shall take appropriate measures, with the aim of ensuring that they are accessed only with obtaining PIC or approval and involvement of the ILCs.[23] Furthermore, Article 7 clarifies that in such cases MAT have to be established with the ILCs.[24]

Fair and Equitable Sharing of Benefits

The protocol sets out core obligations for its contracting Parties to take measures in relation to fair and equitable sharing of benefits arising from biogenetic resources. The issue of fair and equitable sharing has been addressed in different articles of the protocol.

As per article 5(1), benefits originating from the utilization, commercialization and subsequent application of genetic resources shall be shared in a fair and equitable way. Such benefits shall be shared only with/between the party providing such resources (or the country of origin of such resources) or a party that has acquired the genetic resources in conformity with the CBD. Furthermore, specific benefit-sharing arrangements must be established through mutually agreed terms (MAT) between the provider and the user of genetic resources, thus on contract basis.[25]

In regard to resources that are held by ILCs in accordance with domestic legislation, each party must take appropriate legislative, administrative or policy measures, with aim of ensuring that benefits arising from the utilisation of such resources are shared in a fair and equitable way with the ILCs concerned based on MATs.[26] As per article 5(4) the benefits may be monetary as well as non-monetary including but not limited to those listed in the annex.[27] The annex includes an indicative and non-exhaustive list of potential monetary and non-monetary benefits to be shared.[28]

Each party concerned must take appropriate measures in order to share the benefits arising from the utilisation of traditional knowledge associated with genetic resources in a fair and equitable way with ILCs holding such knowledge. Such sharing shall be upon MATs.[29]

Article 9[30] of the protocol reaffirms the linkages between benefit-sharing and the other two objectives of the CBD (conservation and sustainable use) by conferring obligation upon parties to encourage their providers and users to direct benefits arising from the utilization of genetic resources towards the conservation and sustainable use of biological diversity.

The protocol provides the legal basis of a potential consideration of a global multilateral benefit-sharing mechanism in order to address the fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge in cases where bilateral ABS on the basis of PIC is not possible.[31] It further states that benefits derived through this potential mechanism shall be used to support the conservation of biodiversity and the sustainable use of its components.[32]

Compliance

Compliance with ABS measures is a core issue of the Nagoya Protocol. According to Articles 15 and 16, each Party is obliged to take measures to provide that genetic resources and/or traditional knowledge associated with these resources that are used within its jurisdiction have been accessed in compliance with PIC and that MATs have been established, as required by the provider countries’ ABS legislation or regulatory requirements of the other Party. [33] This provision aims to “defend” the integrity of the PIC and MAT requirements of the provider country (if such requirements exist at the domestic level). In other words, it aims to “promote” compliance by individual users of genetic resources and associated traditional knowledge with domestic ABS legal frameworks of provider countries.

In order to address situations of non-compliance with the measures taken under articles 15(1) and 16(1), parties shall take appropriate, effective and proportionate measures.[34] Furthermore, articles 15(3) and 16(3) oblige all parties to the protocol to extend appropriate co-operation in cases of alleged violation of domestic ABS legislation or regulatory requirements of the provider country.[35] By giving discretion to choose between legislative, administrative, or policy measures Articles 15 and 16 provide user countries flexibility in their implementation. Furthermore, they require Parties only to take those measures that are appropriate and proportionate.

Article 18 aims to promote the enforcement of MATs between individual users and providers of genetic resources and/or traditional knowledge associated with genetic resources. It intends to support compliance with contractual obligations rather than domestic ABS legislation or regulatory requirements. As a consequence it obliges party to[36]:

·         Encourage contractual provisions on dispute resolution in mutually agreed terms.

·         Ensure an opportunity is available to seek recourse under their legal systems when disputes arise from mutually agreed terms.

·         Take measures regarding access to justice.

·         The utilization of mechanisms regarding mutual recognition and enforcement of foreign judgments and arbitral awards.

The adoption of the Nagoya Protocol after six years of negotiations was a significant step forward for the implementation of the CBD. By providing a strong basis for greater legal certainty and transparency for both providers and users of genetic resources, the Protocol also significantly advances the CBD’s ABS objective. However, the protocol has yet to enter into force. To enter into force, it has to be ratified, accepted, approved, or acceded to by at least 50 CBD Parties.[37] Only then do the obligations of the Protocol become binding on the Parties.

While the entry into force is a key requirement for the implementation of the Nagoya Protocol at the international level, Parties still have to develop the necessary legislative, administrative, and policy measures at the regional, national, and/or local levels to implement it on the ground.

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[1] Thomas Greiber et al, An Explanatory Guide to the Nagoya Protocol on Access and Benefit-sharing, IUCN, 2012, Pp 25.

[2] Introduction, The 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 2010, Secretariat of the Convention on Biological Diversity, Pp 1.

[3] Article 1, Convention on Biological Diversity 1992.

[4] Thomas Greiber et al, An Explanatory Guide to the Nagoya Protocol on Access and Benefit-sharing, IUCN, 2012, Pp 4.

[5] Michael I Jeffery Q.C., Bio prospecting: Access to Genetic Resources and Benefit-sharing under the Convention on Biodiversity and the Bonn Guidelines, Singapore Journal of International & Comparative Law, (2002), Pp 749.

[6] Ibid, Pp 751.

[7] Glowka et al., A guide to Convention on Biological Diversity, IUCN, (1994), Pp 5.

[8] Thomas Greiber et al, An Explanatory Guide to the Nagoya Protocal on Access and Benefit-sharin, IUCN, 2012, Pp 4

[9] Introduction, The 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 2010, Secretariat of the Convention on Biological Diversity, Pp 1.

[10] Article 8(j), 15, Convention on Biological Diversity, 1992. Article 8(j) deals about the traditional knowledge associated with the use of genetic resources and article 15 is deals about access to genetic resources.

[11] Introduction, The 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 2010, Secretariat of the Convention on Biological Diversity, Pp 1.

[12] About the Nagoya Protocol, available at http://www.cbd.int/abs/about/ (Accessed on 13th September, 2013)

[13] Article 1, The 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 2010.

[14] Thomas Greiber et al, An Explanatory Guide to the Nagoya Protocal on Access and Benefit-sharin, IUCN, 2012, Pp 25.

[15] Ibid.

[16] About the Nagoya Protocol, available at http://www.cbd.int/abs/about/ (Accessed on 15th September, 2013)

[17] See article 15 of Convention on Biological Diversity (CBD) 1992.

[18] See article 8(j) of CBD, 1992.

[19] About the Nagoya Protocol, available at http://www.cbd.int/abs/about/ (Accessed on 16th September, 2013)

[20] See article 6(1) of the Nagoya Protocol (2010).

[21] See article 6(2) of the Nagoya Protocol (2010).

[22] See article 6 (3) of the Nagoya Protocol (2010).

[23] See article 7, Nagoya Protocol (2010).

[24] Thomas Greiber et al, An Explanatory Guide to the Nagoya Protocol on Access and Benefit-sharing, IUCN, 2012, Pp 27.

[25] See article 5(1), Nagoya Protocol (2010).

[26] See article 5(2), Nagoya Protocol (2010).

[27] See article 5(4), Nagoya Protocol (2010).

[28] homas Greiber et al, An Explanatory Guide to the Nagoya Protocol on Access and Benefit-sharing, IUCN, 2012, Pp 28.

[29] See article 5(5), Nagoya Protocol (2010).

[30] See article 9 of Nagoya Protocol (2010).

[31] Article 10, Nagoya Protocol (2010).

[32] Ibid.

[33] See article 15, 16 of the Nagoya Protocol (2010).

[34] See article 15(2) and 16(2) of Nagoya Protocol (2010).

[35] See article 15(3) and 16(3) of Nagoya Protocol (2010).

[36] See article 18 of Nagoya Protocol (2010)

[37] See article 33 of Nagoya Protocol (2010)

This is an initial draft and a final version will be posted as soon as I finish it up.