Unraveling the Nagoya Protocol

Transcription

1 Unraveling the Nagoya Protocol A Commentary on the Nagoya Protocol on Access and Benefit-sharing to the Convention on Biotogicai Diversity By Elisa Morgera, Elsa Tsioumani and Matthias Buck / 6 8 ' BRILL LEIDEN BOSTON

2 Contents Foreword by Prof. Francesco Francioni Acknowledgements xvi List of Abbreviations xviii Table o f Legal Materials Cited xx xiii Introduction 1 1 The International Debate on Access and Benefit-sharing Asymmetries and the Ethical Rationale fo r A B S An Incentive-based Approach to Biodiversity Conservation and the Economic Rationale fo r A B S The a b s Provisions o f the c b d 14 2 From the c b d to the Nagoya Protocol via the Bonn Guidelines 17 3 Traditional Knowledge and ABS 24 4 Indigenous Peoples and Local Communities as Beneficiaries of the c b d and the Nagoya Protocol Internationally Recognized Human Rights o f Indigenous Peoples Internationally Recognized Rights o f Local Communities Human Rights-related Risks and Opportunities, Limitations and Innovations under the Protocol 41 5 About This Commentary 43 Article 1. Objective 48 1 Overview 48 2 Objective and Means 49 3 Traditional Knowledge 53 4 Links with Conservation and Sustainable Use 54 5 Legal and Practical Functions 56 Article 2. Use of Terms 59 1 Overview 59 2 Utilization of Genetic Resources The Intent The Material Derivatives Commodities in Trade 72 3 Utilization of Traditional Knowledge 74

3 VI Article 3. Scope 75 1 Overview 75 2 Subject-matter Scope Human Genetic Resources 76 3 Outstanding Questions Temporal Scope Spatial Scope 81 Article 4. Relationship with International Agreements and Instruments 84 1 Overview 84 2 Relationship with Existing Agreements Examples o f Existing Agreements 90 3 Relationships with Future Agreements w ipo Negotiations 95 4 Relationship with Specialized abs Instruments 4.1 Genetic Resources Covered b y the it p g r f a Genetic Resources with Pathogenic Properties Marine Genetic Resources in Areas Beyond National Jurisdiction c g r f a 108 Article 5. Fair and Equitable Benefit-sharing Overview Inter-State Benefit-sharing from the Utilization of Genetic Resources Intra-State Benefit-sharing from the Utilization of Genetic Resources Held by Indigenous and Local Communities States Obligation 'Established Rights and Other Qualifications Benefit-sharing from Traditional Knowledge The Role of Mutually Agreed Terms Monetary and Non-monetary Benefits 133 Article 6. Access to Genetic Resources Overview Background Access to Genetic Resources: The Inter-State Dimension National Sovereignty over Genetic Resources and Domestic Measures on Access The Concept o f State p i c 144

4 VII 4 Access to Genetic Resources Held by Indigenous and Local Communities Parties Obligation The Concept o f Community p ic Concerning Genetic Resources Approval and Involvement Community p ic and Private-sector Users Access Standards Legal Certainty, Clarity and Transparency Fair and Non-arbitrary Access Rules and Procedures Minimum Procedural Requirements for pic Minimum Requirements for mat 167 Article 7. Access to Traditional Knowledge Associated with Genetic Resources Overview Community pic in Relation to Traditional Knowledge Qualifications 175 Article 8. Special Considerations Overview Research Contributing to Conservation and Sustainable Use Rationale The Obligation Genetic Resources and Health-related Emergencies Genetic Resources for Food and Agriculture 188 Article 9. Contribution to Conservation and Sustainable Use Overview Contribution to a Coherent Interpretation of the Three cbd Objectives Means of Im plem entation Benefits for Indigenous and Local Communities 195 Article 10. Global Multilateral Benefit-sharing Mechanism Overview The Need for a Multilateral Benefit-sharing Mechanism Transboundary Situations Situations Where it is Not Possible to Grant or Obtain p ic Features of a Global Benefit-sharing Mechanism 203

5 VIII 4 Promoting a Coherent Interpretation of the Three c b d Objectives 207 Article 11. Transboundary Cooperation Overview Obligation to Cooperate Transboundary Cooperation Concerning Genetic Resources Transboundary Cooperation Concerning Traditional Knowledge 214 Article 12. Traditional Knowledge Associated with Genetic Resources Overview General Clause Community Protocols Obligation to Inform Potential Users Obligation to Support Prohibition to Restrict Customary Use and Exchange 227 Article 13. National Focal Points and Competent National Authorities Overview National Focal Points Com petent National Authorities 232 Article 14. The Access and Benefit-sharing Clearing-House and Information Sharing Overview Link with the cbd Clearinghouse Mechanism The Functions of the abs Clearinghouse Types of Information Outstanding Legal Issues 246 Article 15. Compliance with Domestic Legislation or Regulatory Requirements on Access and Benefit-sharing Overview Compliance under Articles 15 and 16: Context and Responses to Conceptual Challenges Obligation to Adopt Domestic User-side Measures The Obligation to 'Provide Means o f Implementation 259

6 IX 4 Obligation to Enforce Obligation to Cooperate 261 Article 16. Compliance with Domestic Legislation or Regulatory Requirements on Access and Benefit-sharing for Traditional Knowledge Associated with Genetic Resources Overview Similarities and Differences vis-ä-vis Article Lack of Parallel Provisions on Compliance concerning abs Related to Genetic Resources and abs Related to Traditional Knowledge 268 Article 17. Monitoring the Utilization o f Genetic Resources Overview Checkpoints Characteristics and Functions The Internationally Recognized Certificate of Compliance 279 Article 18. Compliance with Mutually Agreed Terms Overview Dispute Resolution Provisions in m a t Opportunity to Seek Recourse Access to Justice and Recognition of Foreign Judgm ents Jurisdiction and Access to Justice in Cases of Violation of Provider Country abs Frameworks 291 Article 19. Model Contractual Clauses Overview Obligation for Parties M andate for the Protocol s Governing Body 296 Article 20. Codes of Conduct, Guidelines and Best Practices and/or Standards Overview Obligation for Parties M andate for the Protocol s Governing Body 299 Article 21. Awareness-Raising Overview Specific Relevance for Indigenous and Local Communities Linkages with Other Provisions 303

7 X Article 22. Capacity O verv iew The Obligation to Cooperate Country-Driven Capacity-Building The Capacity of Indigenous and Local Communities and Other abs Stakeholders A B S -related D e v e lo p m e n t C o o p e ra tio n 312 Article 23. Technology Transfer, Collaboration and Cooperation O v erv iew Technology Collaboration and Cooperation Technology Transfer 317 Article 24. Non-Parties 322 Article 25. Financial Mechanism and Resources Overview Financial Mechanism Other Bilateral, Regional and Multilateral Channels for Financial Resources 330 Article 26. Conference of the Parties Serving as the Meeting of the Parties to this Protocol Overview The Functioning of the c o p /m o p Relationship with the cbd c o p 337 Article 27. Subsidiary Bodies 339 Article 28. Secretariat 341 Article 29. Monitoring and Reporting Overview Functions and Links 343 Article 30. Procedures and Mechanisms to Promote Compliance with this Protocol Overview Common Features Distinctive Features 352

8 XI 3.1 Compliance in Bilateral Relations between Provider and User Countries Compliance vis-ä-vis Indigenous and Local Communities 3.3 Compliance in State-Private Parties Relations Links with Other Protocol Provisions Dispute Settlement Article 31. Assessm ent and Review Overview Functions and Links 363 Final Clauses Overview Signature and Entry into Force Reservations Withdrawals Official Languages 370 Conclusions Sustainable Development Equity Due Diligence Environmental Rights Final Words of Caution 385 Appendix: Text of the Preamble of the Nagoya Protocol 387 Bibliography 390 Index 412