IIED Insights: Q&A with Krystyna Swiderska on the Nagoya Protocol
November 2010
Last month, after 18 years of negotiations and more than 2 weeks of tense discussions in Nagoya, Japan, the world finally struck a deal on access to genetic resources and benefit sharing. The agreement — the Nagoya Protocol on Access to Genetic Resources and Equitable Sharing of Benefits — was, for many developing countries, a pre-requisite to any broader biodiversity pact. The Group of 77 and China had repeatedly said they would not sign any deal on financing or a strategic plan for the UN Convention on Biological Diversity (CBD) unless a protocol on benefit sharing was established first.
The Nagoya Protocol is intended as a step forward in ensuring equitable benefit sharing in return for genetic resources, and acknowledging and respecting indigenous communities’ rights over their traditional knowledge and genetic resources. Details of how it will work in practice will be thrashed out over the next year but the protocol essentially legally binds the 193 parties to the CBD to follow rules to prevent biopiracy and provide benefits, including financial ones, to countries and communities when using their genetic resources.
We asked one of the senior researchers in our Natural Resources Group, Krystyna Swiderska, why benefit sharing is so important and what we can expect the Nagoya Protocol to deliver in practice.
Why did developing countries stand so firm on benefit sharing?
Ever since the CBD was signed at the Rio Earth Summit in 1992, parties have talked about benefit sharing. The convention includes an objective on obtaining the prior consent of, and sharing benefits with, ‘provider’ countries when their genetic resources — such as traditional medicines or crops — are used.
But the truth is that there has been very little benefit sharing with developing countries over the past two decades. Any company or scientist can develop a commercial product based on genetic resources from the South and, in many cases, can even file a patent on it. Basmati rice from Pakistan, jasmine rice from Thailand, and turmeric and neem from India have all had US patents filed on them, despite all having been in traditional use for hundreds of years.
The problem is that although the CBD is legally binding, it requires countries to develop national legislation to implement it. Developing countries have done their bit but, with the exception of Norway, industrialised countries have not. This has meant that users of genetic resources in industrialised countries have had no legal obligation to share any benefits, particularly as they are generally not involved in collecting genetic resources from developing countries — this is usually done by intermediaries such as universities.
What is different about the Nagoya Protocol?
The protocol requires countries to develop laws to ensure that the use of genetic resources within their jurisdiction is done with prior informed consent and on mutually agreed terms, and that it complies with benefit sharing legislation in other countries. That wording implies that the obligation rests on industrialised countries.
It is more specific than the CBD, which simply requires national measures for access and benefit sharing. And it is designed to ensure that industrialised countries use resources according to the laws made in provider countries.
What happens if countries don’t comply?
Well, that’s just it. The protocol may be legally binding but it doesn’t have the bite of something like the World Trade Organisation. There are no sanctions if countries do not tow the line, just political pressure. It’s true that countries have to submit national reports to the CBD but if they are not implementing the protocol all the convention can do is suggest ways to improve.
The Nagoya Protocol does require industrialised countries to set up one or more checkpoints for disclosing what they’ve accessed and where, and to monitor whether they are complying with the protocol.
The United States is one of the biggest users of genetic resources worldwide. Is it a problem that they’re not signed up to the Nagoya Protocol?
Of course it will limit the scope for benefit sharing. But I don’t think the protocol is useless just because the United States isn’t party to it. It is still a really important step forward in benefit sharing — one that binds Japan, which is a massive user of genetic resources, as well as the European Union.
And it will certainly put pressure on the United States to stop ‘biopiracy’.
What happens if the ‘genetic resource’ already exists within industrialised countries?
This is a key sticking point. As things stand, the protocol will only apply to genetic resources collected after it enters into force. So people or companies have no obligation to share benefits on any of the resources they have already collected.
The Africa Group really wanted the Nagoya Protocol to apply to existing collections of genetic resources. But the European Union argued that this would go against legal clarity and certainty.
This issue of ‘scope’ is still a big area of tension — one that was ‘fudged’ in Nagoya by saying that the protocol will apply to genetic resources “in accordance with CBD”. As the CBD applies from 1993, the wording could be interpreted to mean all resources collected since 1993. This ambiguity gives developing countries something to hold on to and maybe negotiate further on.
What’s happening now is a proposal from the Africa Group to set up a multilateral benefit sharing fund to deal with situations where prior consent from provider countries cannot be obtained. It could potentially cover collections made before the protocol is implemented. Whether the fund is taken forward remains to be seen — all the terms associated with it are yet to be discussed and negotiated. But it is perhaps the developing world’s best hope for getting around some of the issues that weren’t addressed in Nagoya.
To what extent does the Nagoya Protocol address indigenous communities’ needs?
Indigenous communities use and develop traditional knowledge and genetic resources together. For example, if you use a traditional medicine, you are not simply drawing on a community’s knowledge but on their plants as well. That is why these communities were hoping for a strong message from Nagoya that recognises their authority to decide about access to genetic resources in their communities.
That’s been partially dealt with in the protocol — for the first time we have an agreement that recognises the need for prior consent before accessing genetic resources held by communities. But the protocol then says “in accordance with domestic legislation”, which puts the onus on governments to develop laws for ensuring prior consent and essentially means they can choose to ignore it if they want to.
How will the protocol help achieve broader conservation goals?
The Nagoya Protocol specifically states that access and benefit sharing must contribute to conservation and the sustainable use of biodiversity. This means that the activities involved in access and benefit sharing must not undermine biodiversity but also that the benefits and money received should be invested in conservation.
This might provide additional funding for conservation but the question is how much? In 1992, there was a real buzz about ‘green gold’, with big expectations that benefit sharing from blockbuster drugs would generate lots of money for conservation. Now we’re seeing that that is not the case — blockbuster drugs are not that common.
So, on its own, benefit sharing cannot solve biodiversity loss. But it can contribute to it. A key to ensuring that it does is making certain that benefits go to local communities — where a little can go a long way — rather than being absorbed by national programmes such as protected area networks. This is vital because it is local communities that are the front-line custodians of biodiversity. They’re the ones faced with strong disincentives to protect biodiversity at a local level and they generally receive very little support for conservation.
Is there anything that climate negotiators travelling to Cancun this week can learn from the talks in Nagoya about how to strike a global deal on a critical issue?
Several things made the deal in Nagoya possible. For a start, there was a lot of pressure from the Japanese government who were desperate to get this deal done and who played a huge role in facilitating discussions and mediating between the different groups.
Another key ingredient for success was compromise — on both sides. Developing countries stood their ground on the need for a benefit sharing agreement, and in the eleventh hour, industrialised countries made some compromises on the fundamental issue of compliance, while developing countries compromised on key concerns over the protocol’s scope.
Nobody wanted the result to be nothing. Perhaps the economic stakes aren’t as great as they are when it comes to negotiating a deal on climate change. But the biodiversity talks were just as tense — they have been in the works for nearly two decades, have gone through several negotiating texts and a deal was looking highly unlikely up to the last minute. It just goes to show that even against all those odds, a deal is possible. The outcome at Nagoya puts a positive spin on the potential of international environmental negotiations — one that will hopefully rub off in Cancun!