Matthias Buck

The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications for International Law and National Implementation

The 2010 Nagoya Protocol on Access and Benefit-sharing in Perspective analyses the implications of this innovative environmental treaty for different areas of international law, and its implementation challenges in various regions and from the perspectives of various stakeholders.

Article 13. National Focal Points and Competent National Authorities

This chapter outlines the necessary institutional arrangements to be taken at the domestic level to implement the Protocol. It follows the model adopted in the Bonn Guidelines and in the Biosafety Protocol of relying on a combination of a national focal point and one or more competent national authorities. The focal point has a dual external function. On the one hand, it ensures direct communication with the Secretariat of the Protocol. On the other hand, the focal point is mandated to familiarize prospective users with the domestic ABS framework, by providing information on procedures for obtaining PIC and establishing MAT, including with indigenous and local communities. The national authorities must be authorized by a Party to act on its behalf in relation to two implementation functions: first, granting access or issuing written evidence that access requirements have been met; and second, advising on procedures and requirements for PIC and MAT.Keywords: biosafety protocol; Bonn guidelines; competent national authorities; domestic ABS framework; MAT; national focal point; PIC

Article 1. Objective

This chapter introduces the relation between benefit-sharing and access to genetic resources, and highlights key tensions between Convention on Biological Diversity (CBD) Parties underlying the whole text of the Nagoya Protocol. The objective replicates verbatim the third objective of the CBD, which refers prominently to fair and equitable benefit-sharing in its Article 1 (Objectives) and points to three means of sharing benefits, each underpinned by specific provisions of the Convention. The preamble confirms that the Protocol aims to implement the third objective of the CBD. The chapter addresses missing reference to traditional knowledge and discusses the relevance of the connection between the Protocols objective and the first and second objectives of the CBD. Finally, it illustrates the practical and legal functions of Article 1 to equip the reader to understand references to the objective in other provisions of the Protocol.Keywords: benefit-sharing; Convention on Biological Diversity (CBD); genetic resources; Nagoya Protocol; traditional knowledge

Article 19. Model Contractual Clauses

This chapter identifies Parties responsibility to encourage the development and use of model clauses for MAT, namely the private ABS contract to be negotiated between an individual provider and an individual user. The chapter opens the door to the future development of further international guidance on the content of MAT by tapping into user-led practices and other ABS stakeholders experience in developing and operationalizing standard contractual clauses. It emphasizes the importance of developing model contractual clauses for specific sectors of ABS transactions, as well as cross-sectoral ones. This reflects the understanding that each sector is part of a unique research network or market, with distinct practices of accessing and using genetic resources and undertaking research and development. The chapter analyzes the obligation of Parties, and the mandate for the Protocols governing body.Keywords: ABS transactions; genetic resources; MAT; model contractual clauses; protocols governing body

Article 2. Use of Terms

This chapter focuses on explaining the definition of utilization of genetic resources, by breaking it down into its components, and linking it to the definition of derivatives. The term first appeared in the Convention on Biological Diversity (CBD), both in its objectives and in its provision devoted to access to genetic resources, when referring to benefit-sharing arising from the utilization of genetic resources. The chapter discusses the implicit exclusion of biological resources used as commodities in trade, and the lack of definition of utilization of traditional knowledge. In the absence of an explicit definition, utilization of traditional knowledge needs to be understood by combining different elements of the Protocol. In other words, as traditional knowledge under the Protocol would serve as lead information for the utilization of genetic resources, it can be understood as hinging on the same intent (research and development) as in the case of genetic resources.Keywords: benefit-sharing; Convention on Biological Diversity (CBD); genetic resources; traditional knowledge

Article 6. Access to Genetic Resources

This chapter focuses on each of the components of Article 6, namely: the inter-State obligations related to access to genetic resources; the obligations related to genetic resources; the access standards; the minimum procedural requirements for Prior Informed Consent (PIC); and the minimum requirements for Mutually Agreed Terms (MAT). It discusses the notion of national sovereignty over genetic resources and the Protocols obligation to develop domestic measures on access. The Nagoya Protocol also goes beyond existing international human rights standards by extending the community PIC requirement to local communities. In developing domestic access measures, Parties must respect a series of standards and include a series of minimum requirements that are detailed in Article 6(3)(a-g). Article 6(3)(c-f) spells out minimum procedural requirements that must be included in domestic access frameworks of Parties requiring PIC. First of all, Parties need to specify in domestic access measures how to apply for PIC.Keywords: domestic access measures; genetic resources; Mutually Agreed Terms (MAT); Nagoya Protocol; Prior Informed Consent (PIC)

Article 15. Compliance with Domestic Legislation or Regulatory Requirements on Access and Benefit-sharing

This chapter focuses on compliance with domestic ABS frameworks on genetic resources. The compliance is aimed at achieving the Protocols objective, i.e. ensuring fair and equitable benefit-sharing, by creating obligations for Parties with users in their jurisdiction to take measures to support compliance with PIC and MAT established in the provider country. It creates three sets of obligations for State Parties with respect to compliance by individual users: an obligation to adopt domestic measures to provide for the respect of provider countries national ABS measures related to PIC and MAT; an obligation to enforce the user countries domestic measures providing for the respect of provider countries national ABS measures related to PIC and MAT; and an obligation to cooperate with other States in addressing the violation of provider countries national ABS measures.Keywords: benefit-sharing; domestic ABS frameworks; genetic resources; MAT; national ABS measures; PIC

Article 7. Access to Traditional Knowledge Associated with Genetic Resources

This chapter examines the conceptual difference between State Prior Informed Consent (PIC) over genetic resources and community PIC over traditional knowledge followed by an interpretation of the qualified language of Article 7. From a broader international law perspective, the Protocol further elaborates on United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)s recognition of the right of indigenous people to maintain, control, protect and develop indigenous peoples traditional knowledge. The requirement for community PIC concerning traditional knowledge is based on international human rights law. It could also be argued that in cases where no community holding traditional knowledge can be identified, the multilateral benefit-sharing mechanism envisaged by the Protocol could come into play. The chapter concludes that the in-built flexibility of Article 7 also benefits indigenous and local communities in the light of the diverse and unique circumstances under which traditional knowledge is held or owned by these communities.Keywords: benefit-sharing; genetic resources; Nagoya Protocol; Prior Informed Consent (PIC); traditional knowledge; UNDRIP

Article 14. The Access and Benefit-sharing Clearing-House and Information Sharing

This chapter establishes an international ABS Clearinghouse to share information on ABS, that is linked to the pre-existing CBD Clearinghouse Mechanism. It discusses the link between the ABS Clearinghouse and the CBD Clearinghouse Mechanism. The chapter focuses on the functions of the ABS Clearinghouse, the type of information to be included in it, and outstanding legal issues. The ABS Clearinghouse contributes to peer learning and bottomup development of the international ABS regime. Significantly, it also points to the need to include information on relevant competent authorities of indigenous and local communities and information on genetic resources held by them and traditional knowledge as so decided, in light of the Protocol provisions related to these communities. Parties are expected to involve these communities in making available through the ABS Clearinghouse measures related to ABS for the utilization of traditional knowledge.Keywords: CBD Clearinghouse mechanism; genetic resources; international ABS Clearinghouse; outstanding legal issues; traditional knowledge

Article 25. Financial Mechanism and Resources

This chapter discusses the role of the financial mechanism under the Protocol, and the role of other forms of financial solidarity, in turn. The international governance of the financial mechanism under the Nagoya Protocol includes a key role not only for the Protocols governing body, but also for the Convention on Biological Diversity (CBD) Conference of the Parties (COP). In voluntarily providing financial resources through other channels, developed countries are to take into account the needs of developing countries, as identified in their capacity need self-assessments, and may choose between bilateral, regional and multilateral channels. Intergovernmental discussions preparing for the entry into force of the Protocol have already identified the need to take a strategic approach to maximize opportunities for financial support as a complement to the Global Environment Facility (GEF). Governments, organizations, private sector and financial institutions are encouraged to provide financial resources for the implementation of the Protocol.Keywords: Conference of the Parties (COP); Convention on Biological Diversity (CBD); financial mechanism; financial resources; Global Environment Facility (GEF); Nagoya Protocol