What is the Nagoya Protocol and what is its objective?
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 supplementary agreement to the Convention on Biological Diversity. It provides a 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.
The Nagoya Protocol on ABS was adopted on 29 October 2010 in Nagoya, Japan. Its objective is the fair and equitable sharing of benefits arising from the utilization of genetic resources, thereby contributing to the conservation and sustainable use of biodiversity.
The Nagoya Protocol will create greater legal certainty and transparency for both providers and users of genetic resources by:
- Establishing more predictable conditions for access to genetic resources.
- Helping to ensure benefit-sharing when genetic resources leave the contracting party providing the genetic resources
By helping to ensure benefit-sharing, the Nagoya Protocol creates incentives to conserve and sustainably use genetic resources, and therefore enhances the contribution of biodiversity to development and human well-being.
The Nagoya Protocol applies to genetic resources that are covered by the CBD, and to the benefits arising from their utilization. The Nagoya Protocol also covers traditional knowledge (TK) associated with genetic resources that are covered by the CBD and the benefits arising from its utilization.
The Nagoya Protocol sets out core obligations for its contracting Parties to take measures in relation to access to genetic resources, benefit-sharing and compliance.
Domestic-level access measures are to:
- 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
Domestic-level benefit-sharing measures are to provide for the fair and equitable sharing of benefits arising from the utilization of genetic resources with the contracting party providing genetic resources. Utilization includes research and development on the genetic or biochemical composition of genetic resources, as well as subsequent applications and commercialization. Sharing is subject to mutually agreed terms. Benefits may be monetary or non-monetary such as royalties and the sharing of research results.
Specific obligations to support compliance with the domestic legislation or regulatory requirements of the contracting party providing genetic resources, and contractual obligations reflected in mutually agreed terms, are a significant innovation of the Nagoya Protocol. Contracting Parties are to:
- Take measures providing that genetic resources utilized within their jurisdiction have been accessed in accordance with prior informed consent, and that mutually agreed terms have been established, as required by another contracting party
- Cooperate in cases of alleged violation of another contracting party’s requirements
- 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
- Take measures to monitor the utilization of genetic resources after they leave a country including by designating effective checkpoints at any stage of the value-chain: research, development, innovation, pre-commercialization or commercialization
The Nagoya Protocol addresses traditional knowledge associated with genetic resources with provisions on access, benefit-sharing and compliance. It also addresses genetic resources where indigenous and local communities have the established right to grant access to them. Contracting Parties are to take measures to ensure these communities’ prior informed consent, and fair and equitable benefit-sharing, keeping in mind community laws and procedures as well as customary use and exchange.
The Nagoya Protocol’s success will require effective implementation at the domestic level. A range of tools and mechanisms provided by the Nagoya Protocol will assist contracting Parties including:
- Establishing national focal points (NFPs) and competent national authorities (CNAs) to serve as contact points for information, grant access or cooperate on issues of compliance
- An Access and Benefit-sharing Clearing-House to share information, such as domestic regulatory ABS requirements or information on NFPs and CNAs
- Capacity-building to support key aspects of implementation. Based on a country’s self-assessment of national needs and priorities, this can include capacity to
- Develop domestic ABS legislation to implement the Nagoya Protocol
- Negotiate MAT
- Develop in-country research capability and institutions
- Technology Transfer
- Targeted financial support for capacity-building and development initiatives through the Nagoya Protocol’s financial mechanism, the Global Environment Facility (GEF)
Nagoya Protocol, a big victory for India'
In a hard-fought triumph for India and other developing nations, a new international treaty to ensure that the benefits of natural resources and their commercial derivatives were shared with local communities was signed in the Japanese city of Nagoya.
However, the flip side is that the United States — one of the largest users of such resources — is not among the nearly 200 signatories of the Access and Benefit Sharing rules of the Nagoya Protocol. Getting the Americans into the net will be a key aim of the next U.N. summit on biodiversity to be held in New Delhi in 2012.
“It is a big victory for India that both derivatives and pathogens are part of the ABS. As the incoming president [of the next summit], it was incumbent on us to play a major role,” The ABS is the result of almost two decades of U.N. negotiations, where India leads a group of 17 mega diverse countries with rich reserves of exploitable natural resources.
The new ABS Rules mean that multinational companies will have to share their profits with local communities not only for using the original resource, but also any derivative products developed from it. For example, a pharma company which develops a new drug from ingredients found in an Indian plant will now have to give a fair share to Indian communities which nurtured the plant in the first place.
International drug firms will also have to pay to use human genetic material such as pathogens – the germs responsible for virus pandemics which are used to develop lucrative vaccines. “Otherwise, these companies just take our pathogens, make the vaccine, and then make us pay billions of dollars to buy it from them,”
In order to bring the American companies into the ramifications of this agreement, the U.N.'s Convention on Biological Diversity must be linked to the World Trade Organization’s intellectual property agreement. “The TRIPS (Trade Related Aspects of Intellectual Property Rights) must be amended to bring the U.S. into the mainstream. That is my single point agenda…to wrap up before Delhi 2012,”
The Nagoya Protocol includes a sweeping plan to protect biodiversity by setting targets for 2020. Nations agreed to make 17 per cent of the globe's land area and 10 per cent of coastal and marine areas into protected regions, as opposed to the current levels of 13 and one per cent.
They also agreed to bring “natural capital” into national accounting systems so that the trillions of dollars worth of benefits that nature provides to economies are valued. India will take the lead by undertaking a national study on The Economics of Ecosystems and Biodiversity soon.