New Biodiversity Benefit-Sharing Protocol Relies On National Rules, Experts Say

PARIS – The recently agreed international instrument to facilitate access to genetic resources and the equitable sharing of benefits accrued from those resources opened for signature last week, and the text is already getting mixed reviews from stakeholders.

The text has been considered by many stakeholders as a good starting point but with much left to interpretation, and much left to national level implementation. The issue was discussed by a panel in Paris on 3 February.

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 [pdf] was adopted on 29 October 2010, after six years of intense negotiations. Several issues, such as the scope of the protocol, the compliance to the instrument, and the sharing of viruses in the text, were keenly discussed.

The international seminar, organised by the Institute of Sustainable Development and International Relations, a Paris-based think tank working on development issues, in collaboration with the Agence Française de Développement, gathered academics and civil society representatives long acquainted with the subject. The legal, policy, practical challenges and contributions of the protocol to the sustainable development agenda were discussed.

According to Claudio Chiarolla, a research fellow on the international governance of biodiversity at IDDRI, the Nagoya Protocol has a broad scope with many overlaps with other international for a such as the United Nations Food and Agriculture Organization’s Commission on Genetic Resources for Food and Agriculture, the International Treaty on Plant Genetic Resources for Food and Agriculture, also under the umbrella of the FAO.

The protocol also brushes with organisations dealing with intellectual property rights, such as the International Union for the Protection of New Varieties of Plants (UPOV) and its breeders’ exemption, the World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, and the World Health Organization with its negotiations on a multilateral system for influenza virus sharing.

The protocol has the potential to enhance international equity between countries and between countries and indigenous communities, but many practicalities will have to be decided not only within the CBD, but also in other fora and at different levels of governance, Chiarolla said.

Impact of Protocol on WHO Negotiations

According to Sangeeta Shashikant, legal advisor for the Third World Network, the ongoing WHO negotiations on pandemic influenza preparedness might be impacted by relevant elements of the Nagoya Protocol.

The language of Article 8 of the protocol only requires countries to “pay due regard” to “cases of present or imminent emergencies that threaten or damage human, animal or plan health,” she said. But it also requires “expeditious fair and equitable sharing of benefits,” thus indicating that even in the case of emergencies, the CBD requirements remain and do not exclude the need for prior informed consent or mutually agreed terms, she said.

In relation to other international instruments, Article 4 also “requires due regard to be paid to ongoing work or practices provided such work or practices are supportive of and do not run counter to the objectives of the convention and the protocol,” she said.

Parties to the CBD are bound by the principles of the convention principles, she said, and these principles are applicable also to pathogens. These principles “are actually the legal foundation blocks that are key to rectifying the inequities prevailing in the WHO sharing scheme,” she said.

The United States is not party to the CBD.

Since the WHO negotiations are not complete, “the jury is still out on whether the outcome will be supportive of the legal requirements of the convention and the protocol,” she said, adding that all the WHO outcomes “did not have the same binding status as a treaty.”

The next WHO intergovernmental meeting on influenza preparedness will take place from 11-15 April.

Compliance, Temporal Scope Still Open

Compliance to the protocol has been subject to extensive discussions since before the adoption of the protocol. However, compliance “is not an all or nothing case,” said Veit Koester, external professor at Roskilde University Centre in Denmark, as an incomplete compliance does not mean non-compliance. Sometimes countries do not have the capacity to comply fully with the instrument’s requirements.

Comparing the compliance mechanisms already in place in other instruments, Koester said that the Nagoya Protocol compliance mechanism could be modelled after the compliance mechanism of the Cartagena Protocol on Biosafety, but it appears unlikely.

There is grounds for “some degree of optimism” that the establishment of a compliance mechanism will be decided at the first meeting of the Conference of the Parties serving as the meeting of the parties to the protocol to be held in India in October 2012, along with the eleventh meeting of the CBD Conference of the Parties, but the hurdle is that the mechanism has to be adopted by consensus, he said. Major issues that might prevent a consensus are the institutional aspects of constructing a compliance mechanism, how to trigger the non-compliance procedure, and the outcome of a case of non-compliance, he said.

Submissions asserting non-compliance by parties with respect to other parties are extremely rare, he said. It would be fair, for example, to allow submissions by indigenous and local communities, but it is doubtful that this trigger will be accepted by parties, he said.

François Meienberg, joint managing director of the non-governmental Berne Declaration, said that one of the implementation problem of the Nagoya Protocol could be the temporal scope and whether there will be prior informed consent (PIC) and mutually agreed terms (MAT) on species acquired before the protocol, as “an incredible amount of genetic resources already left the country of origin,” he said.

Article 15.1 of the protocol gives no indication that genetic resources acquired before the entry into force of the protocol would be excluded, said Meienberg. Major risks are that the users will examine ex situ collections in their own countries or in countries that are not parties to the protocol, or will check if the resource is available on the open market, A user having illegally accessed a genetic resource in a country of origin could pretend he legally found it ex situ. A correct national implementation is therefore crucial to implement the protocol and the CBD, he said.

According to Elsa Tsioumani, a lawyer and consultant on international environmental law based in Thessaloniki, Greece, traditional provisions are an important part of the Nagoya Protocol which establishes new obligations for parties and requires protection of traditional knowledge in situ.

National legislations on the access and benefit sharing mechanism are needed to ensure that benefits reach the local indigenous communities. In answer to a question from the audience, Tsioumani said that a lot depends on national legislations, which at present do not seem entirely favourable to indigenous communities.