Convention on Biological Diversity
The Nagoya Protocol to the Convention on Biological Diversity on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Use (ABS) is a supplementary agreement to the Convention on Biological Diversity. It provides a transparent legal framework for the effective implementation of one of the three objectives of the CBD: the fair and equitable sharing of benefits arising from the use of genetic resources.
The Nagoya Protocol on the ABS was adopted on 29 October 2010 in Nagoya, Japan and entered into force on 12 October 2014, 90 days after the deposit of the fiftieth instrument of ratification. Its objective is the fair and equitable sharing of the benefits arising from the use of genetic resources, thus contributing to the conservation and sustainable use of biodiversity.
The Nagoya Protocol creates greater legal certainty and transparency for both providers and users of genetic resources by:
- Establish more predictable conditions for access to genetic resources.
- Help ensure benefit sharing when genetic resources leave the country providing the genetic resources.
By helping to ensure that benefits are shared, the Nagoya Protocol creates incentives to conserve and sustainably use genetic resources, thereby enhancing the contribution of biodiversity to development and human well-being.
Scope and Obligations
The Nagoya Protocol applies to the genetic resources covered by the CBD and the benefits arising from their use. The Nagoya Protocol also covers traditional knowledge (TC) associated with the genetic resources covered by the CBD and the benefits arising from their use.
The Nagoya Protocol sets out fundamental obligations for its Contracting Parties to take action regarding access to genetic resources, benefit sharing and compliance.
Access measures at national level should:
- Create legal certainty, clarity and transparency
- Establish fair and non-arbitrary rules and procedures
- Establish clear rules and procedures for prior informed consent and mutually agreed terms
- Provide for the issuance of a license or equivalent when access is granted
- Create conditions to promote and encourage research that contributes to the conservation of biodiversity and sustainable use
- Pay due attention to cases of present or imminent emergencies that threaten human, animal or plant health
- Consider the importance of genetic resources for food and agriculture for food security
Benefit-sharing measures at national level shall provide for the fair and equitable sharing of benefits arising from the use of genetic resources with the contracting party providing the genetic resources. Use includes research and development into the genetic or biochemical makeup of genetic resources, as well as subsequent applications and commercialization. Sharing is subject to mutually agreed terms. Benefits can be monetary or non-monetary, such as royalties and sharing of research results.
Specific obligations to support compliance with national law or regulatory requirements of the contracting party providing the genetic resources, as well as contractual obligations reflected in mutually agreed terms, constitute a significant innovation of the Nagoya Protocol. The contracting parties must:
- Take action, provided that genetic resources used under its jurisdiction have been accessed in accordance with prior informed consent and that mutually agreed terms have been established, as required by another contracting party
- Cooperate in cases of alleged violation of the requirements of another contracting party
- Encourage contractual dispute resolution arrangements on mutually agreed terms
- Ensuring the possibility of redress under their legal systems when disputes arise arising from mutually agreed terms
- Take measures regarding access to justice
- Take measures to monitor the use of genetic resources after leaving a country, namely by designating effective control posts at any stage of the value chain: research, development, innovation, pre-marketing or commercialization
The Nagoya Protocol addresses traditional knowledge associated with genetic resources with provisions on access, benefit sharing and compliance. It also addresses genetic resources to which indigenous and local communities have an established right to grant access. Contracting Parties shall take measures to ensure the prior informed consent of these communities and a fair and equitable sharing of benefits, taking into account Community laws and procedures, as well as customary use and exchange. For more information on the Nagoya Protocol and traditional knowledge, see the work program web page «Traditional Knowledge».
Implementation support tools and mechanisms
The success of the Nagoya Protocol will require effective implementation at the national level. The Contracting Parties will assist with a range of instruments and mechanisms provided for in the Nagoya Protocol, including:
- Creation of national focal points and competent national authorities to serve as contact points for information, grant access or cooperate on compliance issues
- An access and benefit-sharing information clearinghouse for sharing information, such as national regulatory requirements for securitized debt instruments or NFP and CNA information
- Capacity building to support key aspects of implementation. Based on a country's self-assessment of national needs and priorities, this may include the ability to:
- Develop national APB legislation to implement the Nagoya Protocol
- Develop research capacity and institutions in the country
- Technology transfer
- Awareness Campaigns
- Technology Transfer
- Specific financial support for development and capacity building initiatives through the Nagoya Protocol financial mechanism, the Global Environment Facility (GEF)