Unraveling the Nagoya Protocol

A Commentary on the Nagoya Protocol on Access and Benefit-sharing to the Convention on Biological Diversity

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The Nagoya Protocol on access and benefit-sharing is an international environmental agreement that concerns environmental sustainability, other sustainable development issues and equity. It addresses a complex subject matter that affects a range of research, development and commercial activities and is relevant to different areas of international law such as human rights, intellectual property rights, health, food and oceans.

Unraveling the Nagoya Protocol identifies textual, contextual and systemic interpretative questions and suggests solutions that aim to give a coherent and balanced meaning to the text of the Protocol. Offering a systematic discussion of the Protocol’s legal innovations against the background of general international law, this commentary aims to be of use to international biodiversity law scholars and practitioners, as well as to international lawyers that approach access and benefit-sharing for the first time.

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Biographical Note

Elisa Morgera (LLM, University College London; PhD, European University Institute) is Senior Lecturer in Global Environmental Law at the University of Edinburgh School of Law. She is the author of Corporate Accountability in International Environmental Law (OUP, 2009) and co-author of Environmental Integration in the EU's External Relations (Hart, 2012), and has published extensively on international biodiversity law.

Elsa Tsioumani (LLM, College of Europe) is a lawyer specializing in international and European environmental law. She is currently an ERC Research Fellow at the University of Edinburgh School of Law. She has consulted for various international organizations, and has published extensively on international biodiversity law and policy.

Matthias Buck (Ass. iur, M.A.) works with the European Commission and is currently seconded to the German government, advising on EU aspects of the energy transition project. He was the main EU negotiator of the Nagoya Protocol from 2007 to its adoption. He has published widely on EU and international environmental policy and law.

Table of contents

PREFACE by Prof. Francesco Francioni

ACKNOWLEDGEMENTS
LIST OF ABBREVIATIONS
TABLE OF CITED LEGAL MATERIALS

INTRODUCTION
I. The International Debate on Access and Benefit-sharing
1. Asymmetries and the Ethical Rationale for ABS
2. An Incentive-based Approach to Biodiversity Conservation and the Economic Rationale for ABS
3. The ABS Provisions of the CBD
II. From the CBD to the Nagoya Protocol via the Bonn Guidelines
III. Traditional Knowledge and ABS
IV. Indigenous Peoples and Local Communities as Beneficiaries of the CBD and the Nagoya Protocol
1. Internationally Recognized Human Rights of Indigenous Peoples
2. Internationally Recognized Rights of Local Communities
3. Human Rights-related Risks and Opportunities, Limitations and Innovations under the Protocol
V. About This Commentary

ARTICLE 1
I. Overview
II. Objective and Means
III. Traditional Knowledge
IV. Links with Conservation and Sustainable Use
V. Legal and Practical Functions

ARTICLE 2
I. Overview
II. Utilization of Genetic Resources
1. The Intent
2. The Material
a. Derivatives
b. Commodities in trade
III. Utilization of Traditional Knowledge

ARTICLE 3
I. Overview
II. Subject-matter Scope
1. Human Genetic Resources
III. Outstanding Questions
1. Temporal Scope
2. Spatial Scope

ARTICLE 4
I. Overview
II. Relationship with Existing Agreements
1. Examples of Existing Agreements
III. Relationships with Future Agreements
1. WIPO Negotiations
III. Relationship with Specialized ABS Instruments
1. Genetic Resources covered by the ITPGRFA
2. Genetic Resources with Pathogenic Properties
3. Marine Genetic Resources in Areas beyond National Jurisdiction
4. CGRFA

ARTICLE 5
I. Overview
II. Inter-State Benefit-sharing from the Utilization of Genetic Resources
1. Means of Implementation
III. Intra-State Benefit-sharing from the Utilization of Genetic Resources Held by Indigenous and Local Communities
1. States’ Obligation
2. ‘Established Rights’ and Other Qualifications
IV. Benefit-sharing from Traditional Knowledge
V. The Role of Mutually Agreed Terms
VI. Monetary and Non-monetary Benefits

ARTICLE 6
I. Overview
II. Background
III. Access to Genetic Resources: The Inter-State Dimension
1. National Sovereignty over Genetic Resources and Domestic Measures on Access
2. The Concept of State PIC
IV. Access to Genetic Resources Held by Indigenous and Local Communities
1. Parties’ Obligation
2. The Concept of Community PIC concerning Genetic Resources
a. Approval and Involvement
b. Community PIC and Private-sector Users
V. Access Standards
1. Legal Certainty, Clarity and Transparency
2. Fair and Non-arbitrary Access Rules and Procedures
VI. Minimum Procedural Requirements for PIC
VII. Minimum Requirements for MAT

ARTICLE 7
I. Overview
II. Community PIC in relation to Traditional Knowledge
III. Qualifications

ARTICLE 8
I. Overview
II. Research Contributing to Conservation and Sustainable Use
1. Rationale
2. The Obligation
III. Genetic Resources and Health-related Emergencies
IV. Genetic Resources for Food and Agriculture

ARTICLE 9
I. Overview
II. Contribution to a Coherent Interpretation of the Three CBD objectives
III. Means of Implementation
IV. Benefits for Indigenous and Local Communities

ARTICLE 10
I. Overview
II. The Need for a Multilateral Benefit-sharing Mechanism
1. Transboundary Situations
2. Situations Where It Is Not Possible to Grant or Obtain PIC
III. Features of a Global Benefit-Sharing Mechanism
IV. Promoting a Coherent Interpretation of the Three CBD Objectives

ARTICLE 11
I. Overview
II. Obligation to Cooperate
III. Transboundary Cooperation concerning Genetic Resources
IV. Transboundary Cooperation concerning Traditional knowledge

ARTICLE 12
I. Overview
II. General Clause
1. Community Protocols
III. Obligation to Inform Potential Users
IV. Obligation to Support
V. Prohibition to Restrict Customary Use and Exchange

ARTICLE 13
I. Overview
II. National Focal Points
III. Competent National Authorities

ARTICLE 14
I. Overview
II. Link with the CBD Clearinghouse Mechanism
III. The Functions of the ABS Clearinghouse
IV. Types of Information
V. Outstanding Legal Issues

ARTICLE 15
I. Overview
II. ‘Compliance’ under Articles 15 and 16: Context and Responses to Conceptual Challenges
III. Obligation to Adopt Domestic User-side Measures
1. The Obligation to ‘Provide’
2. Means of Implementation
IV. Obligation to Enforce
V. Obligation to Cooperate

ARTICLE 16
I. Overview
II. Similarities and Differences vis-à-vis Article 15
III. Lack of Parallel Provisions on Compliance concerning ABS related to Genetic Resources and ABS related to Traditional Knowledge

ARTICLE 17
I. Overview
II. Checkpoints
1. Characteristics and Functions
III. The Internationally Recognized Certificate of Compliance

ARTICLE 18
I. Overview
II. Dispute Resolution Provisions in MAT
III. Opportunity to Seek Recourse
IV. Access to Justice and Recognition of Foreign Judgments
V. Jurisdiction and Access to Justice in cases of Violation of Provider Country ABS Frameworks

ARTICLE 19
I. Overview
II. Obligation for Parties
III. Mandate for the Protocol’s Governing Body

ARTICLE 20
I. Overview
II. Obligation for Parties
III. Mandate for the Protocol’s Governing Body

ARTICLE 21
I. Overview
II. Specific Relevance for Indigenous and Local Communities
III. Linkages with Other Provisions

ARTICLE 22
I. Overview
II. The Obligation to Cooperate
III. Country-driven Capacity-building
IV. The Capacity of Indigenous and Local Communities and Other Stakeholders
V. ABS-related Development Cooperation

ARTICLE 23
I. Overview
II. Technology Collaboration and Cooperation
III. Technology Transfer

ARTICLE 24

ARTICLE 25
I. Overview
II. Financial Mechanism
III. Other Bilateral, Regional and Multilateral Channels for Financial Resources

ARTICLE 26
I. Overview
II. The Functioning of the COP/MOP
III. Relationship with the CBD COP

ARTICLE 27

ARTICLE 28

ARTICLE 29
I. Overview
II. Functions and Links

ARTICLE 30
I. Overview
II. Common Features
III. Distinctive Features
1. Compliance in Bilateral Relations between Provider and User Countries
2. Compliance vis-à-vis Indigenous and Local Communities
3. Compliance in State-Private Parties Relations
IV. Links with Other Protocol Provisions
V. Dispute Settlement

ARTICLE 31
I. Overview
II. Functions and Links

FINAL CLAUSES
I. Overview
II. Signature and Entry into Force
III. Reservations
IV. Withdrawals
V. Official Languages

CONCLUSIONS
I. Sustainable Development
II. Equity
III. Due Diligence
IV. Environmental Rights
V. Final Words of Caution

APPENDIX: TEXT OF THE PREAMBLE OF THE NAGOYA PROTOCOL BIBLIOGRAPHY

Readership

Academics and practitioners interested in international environmental law, biodiversity, human rights and sustainable development.

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