Access and Benefit Sharing CBD - Nagoya Protocol the global perspectives and its relevance in Nepal Krishna Prasad Oli, Ph.D Ministry of Forests and Soil Conservation, Government of Nepal, RECAST International Centre for Integrated Mountain Development Kathmandu, Nepal
Introduction CBD and its Objectives Nagoya Protocol
Nagoya Protocol? 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 (the Nagoya Protocol ) is an international treaty adopted on 29 October 2010 by the Parties to the Convention and is enforced from October 2014. The Nagoya Protocol further elaborates upon the general rules of the Convention on access to genetic resources and sharing of monetary and non-monetary benefits arising from the utilization of genetic resources and traditional knowledge associated with genetic resources ( access and benefit-sharing ).
Biological Resources
Genetic Material Functional units of heredity, GR resources: Genetic material of actual and potential value Margo A. Bagley, Arti K. Rai, 2013
Status of Ratification Total ratification :64 Signatories: 93 Bhutan, India and Myanmar has ratified Afghanistan, China, Nepal and Pakistan Sri lanka, Maldives has not signed Bangladesh has signed
Anticipated Benefits from the Protocol Legal certainty Transparency Ensuring benefit sharing More predictable conditions for Access to GR and TK (PIC of the provider countries and communities that possesses GR and associated TK)
NP S relation with other agreements NP does not affect Party rights and obligations in relation to other existing agreement except when exercising those provisions would seriously damage or threaten biological diversity Margo A. Bagley, Arti K. Rai, 2013 For implementing the ABS provisions of the CBD, it does not apply to Parties of other specialized international agreements with ABS provisions that are consistent with the objectives of the CBD and NP in respect of the specific genetic resource covered by the specialized instrument.
Conditions for making the Protocol Operational Enabling conditions at national level. Revision and upgrading of existing legislations Policies development for developing new measures to meet the obligation under the protocol. Institutional structures Community biodiversity protocol. Large scale public awareness. R&D. Regional and bilateral cooperation
Problem statement Immense bio-cultural diversity and agrobiodiversity, faunal and insects, pathogens diversity crucial for identity, livelihood, security, food sovereignty yet many poor people, low human development index, natural resources depleting Outsiders taking advantage of genetic resources and traditional knowledge without compensation and in non transparent, fraudulent ways.
Challenges design a National ABS Framework Agreement in such a way that: it does NOT JUST facilitate access to genetic resource and traditional knowledge for business companies but it also safeguards the rights of indigenous, ethnic and marginalized peoples and local communities it helps them in their own fight against poverty it provides incentives to the conservation of bio-cultural diversity and it benefits the country in the region and promotes friendly and mutually supportive relations among them.
Challenges-- genetic resources, as well as traditional knowledge associated with them, are often not endemic to a specific country or held by only one ILC. genetic resources are often found in more than one country or even in more than one geographical region the same traditional knowledge is often held by different ILCs, which might even be located in different parts of the countries /countries
Reaching the Communities(Challenge) Policy and political boundary divide Applications for ABS agreement Community cultural norms Customary arrangements Integrated landscape management Community VDC, Wards, User Groups Districts Province National Different pieces of legislations
What have Nepal done?? Drafting Progressive ABS legislation. Engagement with the stakeholders. Learning from others Low priority - ABS law in Nepal.
Nepal case Public hearing EIA Right over Biological and Genetic Resources and Intellectual Property Sharing and Distribution of Benefits
Benefit sharing arrangements Key features in Draft law (a) If the owner of the resource is the Government of Nepal,- (1) fifty percent to the Government of Nepal, (2) Thirty percent to the council, (3) Twenty percent to the ILC,person or institution. (b) If the owner is ILC, person or institution,- (1) Fifty-one percent to local community, person or institution, (2) Twenty-nine percent to the council (3) Twenty percent to the Government of Nepal. The local body concerned shall get ten percent of the benefit to be received by the owner of the resource pursuant to sub-section (2). The benefit to be received by the local community pursuant to subsection (2) shall be distributed through the local body which the community belongs to.
Engagement required to deal with regional and national ABS issues GR of one country is used in another country or jurisdiction Creating incentive(s) for users to enter into contracts and making such contracts enforceable in the jurisdiction of user country Principle of sovereignty from Having legal effects Legal question of cross boarder utilization, benefit sharing and enforcement PIC and MAT under another jurisdiction.
Sharing benefits from One Country to Another?? Socio-cultural, environmental services and economic links Product Benefit sharing??
Choices and Options 1. CBD and Nagoya protocol emphasizes to protect TK and Rights of indigenous and local communities. 2. UN declaration on the rights of indigenous people stresses that genetic and cultural diversities are intertwined. 3. The communities of center of origin of genetic resources and TK receive MAT and benefits directly. 4. Countries support each other in obtaining fair reward from business and offer preferential treatment to one another in sharing bio-cultural diversity. 5. Free information sharing among the communities and can be compensated when it generates money. 6. Incentive to conserve common bio-cultural diversity. 7. Options for technology/experience and expertise transfer Increases barging power and countries are not played of against each other.
How equitable share is possible? fair, equitable...? Benefit sharing well-regulated, simple procedures... Access to genetic resources and associated traditional knowledge and practices Who governs/ manages bio-cultural diversity? Traditional/politically constituted institutions Conservation of ecosystems and natural and bio-cultural resources
Ratification a long way for Nepal Signature Protocol needs to be presented in the parliament for initial consent/acceptance. Go ahead Negotiation Signing by the minister Sending to parliament to get view from parliamentary committee. Parliamentary advice/consent. Back to ministry and head of state.
Future Challenges -Nepal Ratification Domestic ABS mechanism and harmonization with the existing other related legislations How to expand monitory benefits to the country and communities. Making ABS mechanism functional Incentive to companies and institutions to enter ABS contract. Provision for research and development.
Future Challenges-- Legal arrangement to trace GR - problem to provider after the end product is developed. Dealing with Benefits sharing among the indigenous and local communities. Developing - Approach to benefit for GR held in Gene banks prior to the enforcement of CBD/protocol.
Future Challenges-- National governance of biological resources including all the rules and institution in conformity with the regional/ global governance, in tackling some collective problems in pursuit of common goal. Developing ABS legislation Building a system for access and benefit sharing of pathogen materials. Interface between IP protection and biodiversity including ABS regime as this provides strong incentive to privatize Knowledge.
National ABS Legal Frame work National Bio-diversity Authority Users and prospectors National ABS Steering comittee National ABS Secretariat Clearing House Fund Indigenous People and local communities, holders of genetic reosurces and associated knowledge, members of traditional insitutions for natural resource management Conservation of bio-cultural diversity appreciated and supported
Management Mechanism Trust Fund National Bio-diversity Trust Fund Competent Authority Designated Authority National Bio-diversity State/District Bio-diversity Trust Fund Local Bio-diversity Trust Fund State Bio-diversity Board Bio-diversity Management Committee Indian Example
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