What happened at Nagoya?

19 November 2010

The key outcome was that an international legally binding protocol on access to genetic resources and benefit-sharing was agreed.

After tense negotiations, including a number of breakdowns, a protocol was finally agreed in the early hours of the final day, much to everyone’s amazement! This was thanks to some last minute compromises, creative use of ambiguous language, and determined mediation by the Japanese delegation. While overall the outcome is positive and there have been some gains for developing countries and communities, some key issues remain unresolved. A number of developing countries stated that they considered the protocol to be far from perfect.

There were three main sticking points:

Compliance measures: The purpose of the protocol is to ensure that industrialised countries where genetic resources are used are legally bound to implement ABS. Developing countries wanted a number of specific compulsory checkpoints, but industrialised countries opposed this. In the end, industrialised countries agreed to setting up 1 or more unspecified checkpoints. They also agreed to develop legislative, administrative or policy measures to ensure GRs used in their jurisdiction comply with national legislation in provider countries. This compromise probably sealed the entire deal as this was the most critical issue.
Scope: The Africa Group and developing countries insisted that the protocol should apply to genetic resources that have already been collected, while the industrialised countries insisted that it should only apply to new collections. In the end this issue was fudged – the section on scope states that the protocol applies to access to genetic resources in accordance with the CBD – which could mean those collected since the CBD entered into force in 1993, but this is far from clear.
Derivatives: developing countries were keen to ensure that biochemical derivatives of genetic resources were included in the scope, since these are used commercially as much as genetic resources (eg. for screening medically active compounds to develop new drugs). In the end, derivatives were not included in the scope, but they were defined as biochemicals, which at least provides the basis for further negotiation.

For indigenous and local communities, the key issue was that the protocol should require their Prior Informed Consent for access to their traditional knowledge and related genetic resources, and equitable benefit-sharing. But the protocol only requires countries to develop national measures to ensure the PIC of communities for access to TK, and these will take some time to develop. Nevertheless the protocol is a step forward from the CBD as it establishes the need for PIC and Mutually Agreement Terms with communities (and not only governments) for the use of TK, and encourages Parties to take customary laws, community protocols and procedures into account. It also requires measures to be developed for PIC and benefit-sharing from the use of genetic resources held by communities. However, this is to be ‘in accordance with domestic legislation’ which provides a get out clause for governments.

What Happens Next

The protocol needs to be ratified by governments over the next 1-2 years before it can enter into force. An Interim Committee has been established to take the protocol forward before the first Meeting of the Parties to the protocol in two year’s time. This Committee will need to discuss the proposal to establish a multilateral benefit-sharing fund and the rules attached to it. The fund, proposed by the Africa Group, provides a potential means of addressing developing country concerns over temporal scope and the inclusion of derivatives, which remain largely unresolved. Ultimately, the effectiveness of the protocol in delivering benefits in practice depends on its implementation at national level, particularly in industrialised countries.

Krystyna Swiderska is senior researcher, natural resources group, agriculture and biodiversity

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