Biology Reference
In-Depth Information
Access measures are envisioned at the domestic level to create legal certainty, clar-
ity and transparency, provide fair and non-arbitrary rules and procedures, create
conditions to promote biodiversity-related research, and provide for the issuing of
permits or the equivalent when access is granted.
Benefit-sharing measures focus on the fair and equitable sharing of ben-
efits (both monetary and non-monetary) arising from the utilization of genetic
resources, subject to mutually agreed terms. The protocol's compliance obliga-
tions require parties to take measures providing that genetic resources utilized
within their jurisdictions have been accessed in accordance with prior informed
consent and that mutually agreed terms have been established as required with the
other party.
Another key requirement is for parties to take measures to monitor and enhance
transparency regarding the utilization of genetic resources, including through des-
ignated checkpoints, and collecting information at any stage of research, develop-
ment, innovation, pre-commercialization or commercialization. A range of specific
responses are outlined, including cooperation in cases of alleged violation, oppor-
tunities for legal recourse and access to justice.
The Nagoya Protocol serves as both a regulatory instrument over genetic
resources and an enabling instrument facilitating national governance, interna-
tional cooperation and the augmentation of indigenous research capacities. These
twin characteristics contributed to the complexity of its negotiation and render the
protocol quite unique.
The protocol includes, as a key element, traditional knowledge associated with
genetic resources, which is anchored in provisions on access, benefit sharing and
compliance. Significantly, and despite some protracted resistance during much of
the negotiation, the protocol's preamble references the UN Declaration on the
Rights of Indigenous Peoples. In addition, one of the forward-looking aspects of
the protocol is a new provision (i.e., one not found in the CBD) requiring each
party to the instrument to take measures to ensure (for those indigenous and local
communities that have established rights to grant access to genetic resources) the
prior informed consent of such communities. 8
According to Graham Dutfield ( 2011 ), article 10, under the heading 'Global
Multilateral Benefit-Sharing Mechanism', will be the key to the success of the
Parties shall consider the need for and modalities of a global multilateral benefit sharing
mechanism to address the fair and equitable sharing of benefits derived from the utili-
zation of genetic resources and traditional knowledge associated with genetic resources
that occur in transboundary situations or for which it is not possible to grant or obtain
prior informed consent. The benefits shared by users of genetic resources and traditional
8 Since the protocol's adoption, a group of indigenous organizations has sent a submission to
the executive secretary of the CBD secretariat outlining 'substantive and procedural injustices'
( ) - for
instance, the fact that 'excessive reliance on national legislation is likely to lead to serious abuses,
in light of the history of violations' and the lack of 'full and effective participation' by indigenous
representatives during the negotiations.
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