Melissa Lewis 1
3 Overview of the Nagoya Protocol and its application to PGRFA
The Nagoya Protocol was adopted in 2010, at the CBD’s tenth COP,44 and will enter into force 90 days after being ratified by 50 Parties to the Convention.45 The Proto-col’s objective is:
[t]he fair and equitable sharing of benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropri-ate 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 compo-nents.46
Building upon the CBD’s ABS provisions, the Protocol requires that access to ge-netic resources for their utilization shall be subject to the prior informed consent of the Party providing the resources (unless that Party determines otherwise).47 Any benefits arising from the utilization of genetic resources are to be shared with the Party that has provided the resources in a fair and equitable manner and in accord-ance with mutually agreed terms.48 The Protocol thus envisages ABS being
negoti-41 Liaison Group of Biodiversity-related Conventions, <http://www.cbd.int/blg/>.
42 See generally Progress Report on Partnerships, Synergies and Cooperation with Other Organizations, Doc. IT/GB-3/09/18 (2009); and Relationship with the Convention on Biological Diversity, Doc. IT/
GB-4/11/22 (2011), paras 15, 17 and 32.
43 Report of the Ad Hoc Open-ended Working Group on Access and Benefit-sharing on the Work of its Fifth Meeting, UN Doc. UNEP/CBD/WG-ABS/5/8 (2007), para. 3; Report of the Ad Hoc Open-ended Working Group on Access and Benefit-sharing on the Work of its Sixth Meeting, UN Doc. UNEP/
CBD/COP/9/6 (2008), para. 3; Report of the Seventh Meeting of the Ad Hoc Open-ended Working Group on Access and Benefit-sharing, UN Doc. UNEP/CBD/WG-ABS/7/8 (2009), para. 3; Report of the Eighth Meeting of the Ad Hoc Open-ended Working Group on Access and Benefit-sharing, UN Doc.
UNEP/CBD/WG-ABS/8/8 (2009), para. 3; Report of the First Part of the Ninth Meeting of the Ad Hoc Open-ended Working Group on Access and Benefit-sharing, UN Doc. UNEP/CBD/WG-ABS/9/3 (2010), para. 3; Report of the Second Part of the Ninth Meeting of the Ad Hoc Open-ended Working Group on Access and Benefit-sharing, UN Doc. UNEP/CBD/COP/10/5/Add.4 (2010), para. 3. For a discussion of interlinkages between the CBD and the ITPGRFA, and how these have improved the ef-fectiveness of both instruments, see Chambers, supra note 11, at chapter 6.
44 Decision X/1, supra note 21.
45 Art. 33. As at mid-January 2013, the Protocol had 92 signatories but had been ratified by only twelve states (these being Ethiopia, Fiji, Gabon, India, Jordan, Lao People’s Democratic Republic, Mauritius, Mexico, Panama, Rwanda, the Seychelles and South Africa). See ‘Nagoya Protocol: Status’ at <http://www.
cbd.int/abs/nagoya-protocol/signatories/> (visited 18 January 2013).
46 Art. 1.
47 Art. 6(1).
48 Art. 5(1).
115 Melissa Lewis ated between users and providers on a case-by-case basis. Parties requiring prior in-formed consent are obliged to take various measures to provide for fairness, legal certainty, clarity and transparency in their laws and procedures for accessing genetic resources and establishing mutually agreed terms to access,49 and the Protocol con-tains several provisions aimed at ensuring compliance with the ABS laws of provider countries50 (though it does also envisage the possible development of a global mul-tilateral benefit-sharing mechanism to facilitate the sharing of benefits in certain instances51). The Protocol further contains ABS requirements for those instances in which genetic resources or traditional knowledge have been provided by indigenous and local communities,52 as well as provisions on such issues as information-sharing,53 capacity-building,54 technology transfer,55 and awareness-raising.56
While there is certainly overlap between the objectives of, and issues dealt with by the Nagoya Protocol and the ITPGRFA, it is also clear that the two instruments, employ very different mechanisms to achieve ABS: the Plant Treaty (insofar as Annex I resources are concerned) facilitates access and shares benefits through a multilat-eral tool, while the Protocol requires that ABS arrangements genmultilat-erally be made bi-laterally. During the negotiation of the Nagoya Protocol, concerns were raised that the introduction of a new legal instrument that covered all genetic resources (includ-ing those of relevance for food and agriculture) would be problematic if it called for ABS arrangements that were inconsistent with those under the ITPGRFA (in par-ticular, the Treaty’s Multilateral System for Annex I resources).57 Negotiators thus carefully considered the relationship between the Plant Treaty and the international regime on ABS, and debated various options for restricting the Nagoya Protocol’s scope with regard to those resources to which the Plant Treaty applies.58
The decision through which the Nagoya Protocol was eventually adopted describes the ITPGRFA as a component of the international regime on ABS.59 Even with the
49 Art. 6(3).
50 Arts 15, 17 and 18.
51 Article 10 of the Protocol requires Parties to ‘consider the need for and modalities of a global multilat-eral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant prior informed consent’.
52 Arts 5(5), 6(2) and 7. See also Art. 12.
53 Art. 14.
54 Art. 22.
55 Art. 23.
56 Art. 21.
57 Jane Bulmer, ‘Study on the relationship between an international regime on access and benefit-sharing and other international instruments and forums that govern the use of genetic resources’, UN Doc.
UNEP/CBD/WG-ABS/7/INF/3/Part.1 (2009) 14–15.
58 See Report of the Ad Hoc Open-ended Working Group on Access and Benefit-sharing on the Work of its Fourth Meeting, UN Doc. UNEP/CBD/COP/8/6 (2006) 23; UN Doc. UNEP/CBD/COP/9/6, supra note 43, at 15–16; UN Doc. UNEP/CBD/WG-ABS/7/8, supra note 43, at 22–23; UN Doc.
UNEP/CBD/WG-ABS/8/8, supra note 43, at 22–23; UNEP/CBD/COP/10/5/Add.4, supra note 43, at 19–20; UNEP/CBD/COP/10/5/Add.5, supra note 16, at 10.
59 Decision X/1, supra note 21.
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Synergies within the International Regime on Access and Benefit-sharing:
Cooperation between the Nagoya Protocol and the ITPGRFA
Protocol’s adoption, the CBD’s COP thus continues to view the ITPGRFA as having a significant role to play in achieving the Convention’s benefit-sharing objective.60 Indeed, the preamble to the Protocol recognizes the special nature and importance of PGRFA, acknowledges the fundamental role played by the ITPGRFA in this re-gard, and recalls the Plant Treaty’s Multilateral System of ABS. In terms of Article 4, the Protocol’s provisions shall not affect Parties’ rights and obligations arising from existing international agreements, (except where this would cause serious damage or threat to biodiversity),61 and the Protocol is to be implemented in a mutually sup-portive manner with other relevant international instruments, with due regard being paid to the ongoing work or practices under these instruments and relevant interna-tional organizations.62 Article 4(4) is particularly significant, as it provides that
[w]here a specialized international access and benefit-sharing instrument applies that is consistent with, and does not run counter to the objectives of the [CBD]
and this Protocol, this Protocol does not apply for the Party or Parties to the specialized instrument in respect of the specific genetic resources covered by and for the purpose of the specialized instrument.
The result is that, (at least insofar as countries that have ratified both the Nagoya Protocol and the ITPGRFA are concerned63) the Protocol’s provisions will not apply to PGRFA that are covered by the Plant Treaty unless these are used for purposes unrelated to the Treaty64 (for instance, if an Annex I-listed crop were used in the development of a cosmetic or pharmaceutical product, its use for this purpose would be governed by the Nagoya Protocol rather than the ITPGRFA65). In this way, the
60 Since COP10, the CBD’s Executive Secretary has also highlighted that, as part of the international regime on ABS, the Plant Treaty plays a central role in regulating access to PGRFA. Report of the Second High-level Roundtable on the International Treaty on Plant Genetic Resources for Food and Agriculture on the Occasion of the United Nations Conference of Sustainable Development (2012), available at <http://
www.planttreaty.org/sites/default/files/HLRT2_Final_Report_1.pdf> (visited 1 August 2012) at 2.
61 This provision is not, however, intended to create a hierarchy between the Protocol and other interna-tional instruments (Art. 4(1)). The Protocol’s provisions also shall not prevent the development and imple-mentation of further international agreements, provided that these do not run counter the objectives of the CBD and the Protocol (Art. 4(2)).
62 Provided that such work or practices are supportive of, and do not run counter to, the objectives of the CBD and the Protocol (Art. 4(3)).
63 72 of the 92 countries that have thus far signed the Nagoya Protocol, and five out of the six that have ratified or accepted the Protocol (Mexico being the exception), are Contracting Parties to the ITPGRFA (Nagoya Protocol website, ‘Status of signature, and ratification, acceptance, approval or accession’, avail-able at <http://www.cbd.int/abs/nagoya-protocol/signatories/>, read with ITPGRFA website, ‘List of countries’, available at <http://www.planttreaty.org/list_of_countries> (both visited 30 September 2012)).
64 Insofar as the Nagoya Protocol does apply to PGRFA, the Protocol recognizes that such resources should be subject to special considerations: Art. 8(c) requires that Parties, in the development of their ABS leg-islation or regulatory requirements, ‘[c]onsider the importance of genetic resources for food and agricul-ture and their special role for food security’.
65 Buck and Hamilton, supra note 20, at 58. See also Art. 12(3)(a) of the Plant Treaty, which provides that access via the Multilateral System of ABS ‘shall be provided solely for the purpose of utilization and con-servation for research, breeding and training for food and agriculture, provided that such purpose does not include chemical, pharmaceutical and/or other non-food/feed related industrial uses’ (emphasis added).
117 Melissa Lewis two instruments’ divergent approaches to ABS have been harmonized, and the au-tonomy of the ITPGRFA respected.66
Although the Nagoya Protocol was drafted in such a way that its provisions do not directly conflict with the ITPGRFA, there remains significant overlap in the issues covered by these two instruments (both, for instance, seek to protect traditional knowledge and both apply to ABS relating to Annex I crops, depending on the pur-pose for which such crops are being accessed). It is thus desirable that the Protocol and the Plant Treaty, rather than following entirely independent (and potentially inconsistent) paths in addressing such issues, coordinate their approaches and ac-tivities where possible. Such coordination could reduce the burden on Parties to both instruments (by avoiding the development of fragmented approaches in respect of the same or similar issues), and would have the added advantage of allowing the instruments to pool resources and avoid duplication of efforts in measures aimed at supporting the implementation of their respective ABS provisions.