Nagoya Protocol and Access and Benefit-Sharing by Dr. Deepti Malhotra

Aim of Nagoya Protocol Access and Benefit-Sharing Clearing House:

Under the United Nation’s Convention on Biological Diversity (CBD) that is an international instrument that addresses expansively the global biological diversity with its objectives covering (i) the conservation of biological diversity, (ii) the sustainable use of its components, and (iii) the fair and equitable sharing of benefits arising from the utilization of genetic resources. It was the proper implementation of the aforesaid third objective of the CBD, to promote and safeguard the fair and equitable sharing of benefits from the use of genetic resources and traditional knowledge associated with genetic resources as well as from indigenous people and the local community, the Nagoya Protocol was adopted concerning the access to genetic resources and the fair and equitable sharing of benefits arising from the use of said genetic resources at the tenth conference of parties (COPs) meeting in 2010 in Nagoya, Japan. The aim of Nagoya protocol is to strengthen the third objective of the CBD and provide effective legal basis and certainty for both the owners/providers/suppliers of the genetic resources (GR) and traditional knowledge (TK) associated with genetic resources from their indigenous people and local community on one hand and the users of such genetic resources and traditional knowledge. The protocol provides definite compliance provisions and specific obligations regarding domestic legislation and regulatory requirements of the owners/providers/suppliers of the genetic resources and traditional knowledge as well as the contractual obligations in the form of the mutually agreed terms that ensure fair and equitable sharing of resources and benefits. This results in clarity and predictability conditions for access to genetic resources and traditional knowledge and sharing of benefits for the use of genetic resources, knowledge, innovations, and practices. In turn, the protocol aims to strengthen the opportunities and incentives to reach all the three objectives of the CBD for sustainable development and well-being of humans and the environment globally.  

The Access and Benefit-sharing Clearing-House (ABSCH) is a platform established under Article 14 of the Nagoya protocol for exchanging information on the access and benefit-sharing under the clearing-house mechanism under Article 18 of the CBD. It is the ABSCH that provides the legal certainty, clarity, and transparency on access procedures, monitoring the use of the GR and TK for proper implementation of the objectives of the Nagoya protocol. The ABSCH aims to share information to allow users to find information on the procedure concerning the access of GR and TK and at the same time aids the owners/providers/suppliers procure information on how their supplied GR and TK are used once they leave the supplying country’s jurisdiction. Thus, Nagoya protocol along with its ABSCH provides all the relevant ABS information to help users access GR and TK while provides the suppliers with their fair and equitable share of benefits from the use of their GR and TK.     

Negotiations under Nagoya Protocol Access and Benefit-Sharing Clearing House:

The Nagoya Protocol and its ABSCH allow greater legal certainty and transparency through negotiations that are beneficial to both the suppliers and users of the GR and TK by establishing efficient, predictable conditions for accessing the GR and TK while ensuring fair and equitable sharing of the benefits from the use of said GR and TK.

The negotiations look into the interest of the suppliers who desire control over access of their own GR and TK, want insurance of compliance with all the conditions as set forth in the mutually agreed terms (MAT), assure the suppliers that the benefits as entitled from the use of the GR and TK are received as decided per the terms of the MAT. Additionally, the negotiations in favor of the users provide a clear understanding of the procedure of accessing the GR and TK, along with legal certainty on their use following the due process. Mutually, the negotiations also establish terms of fair and equitable benefit sharing, sustainable use of biodiversity, and also ensure the conservation of biodiversity. Thus, the concerns of both the users and suppliers are thoroughly considered and negotiated to reach a mutually agreed to final terms.       

Main functions of Nagoya Protocol Access and Benefit-Sharing Clearing House:

As aforesaid, the Nagoya Protocol and its ABSCH was established to provide for an assured application and implementation of the third objective of the CBD on the access and benefit-sharing of the GR and TK in a fair and equitable manner, while keeping in mind the interests of both the suppliers and users of the GR and TK. Thus, it provides a predictable, certain, and clear legal instrument to provide control of access to the suppliers, establishes mutually beneficial and fair terms and conditions to be set in the mutually agreed terms (MAT) resulting in fair and equitable sharing of benefits, sustainable use of biodiversity, and reach the goal of conservation of biodiversity.

So as to achieve the goals of the Nagoya protocol that is translated into local jurisdictions and their practices, both the suppliers and users are required to create the necessary provisions, measures, and conditions as provided under the protocol into their national frameworks to implement the access and benefit-sharing at the national levels to enable efficient development of agreements on access and benefit-sharing of the GR and TK so as to assure mutual benefits for both such parties. Thus, the Article 14 of the Nagoya protocol of the CBD established the ABSCH as the means for sharing information related to the access and benefit-sharing of the GR and TK and provides access information to each of the parties to the agreements on GR and TK access and benefit-sharing so as to apply the provisions and conditions under the Nagoya protocol. Specifically, the ABSCH lets the countries to share information on the process and procedures for accessing their GR and TK while monitoring the use of said GR and TK.   

To summarize, the ABSCH functions to provides a platform to share information on contacts, procedures, and requirements for accessing GR and TK and overall facilitates the ease of finding information in a convenient, easily-accessible location making it easy to make connections between the users and suppliers while specifically aiding the users and suppliers as explained below. Additionally, the ABSCH provides reliable, accurate, and up-to-date information by publishing the same so as to aid a fair, transparent, and reliable. The ABSCH also acts as a one-stop place that makes the application of Nagoya protocol persuasive and accessible to others by providing a platform for former access and benefit-sharing community to share their experiences for implementation of the Nagoya protocol, along with providing information on best practices, capacity-building resources, communication materials, and publication of access and benefit-sharing to a wider audience.   

User’s and supplier’s interests in the use of the ABS Clearing-House:

i) User’s interests in the use of the ABS Clearing-House under Nagoya Protocol Access and Benefit-Sharing Clearing House:

For the users, the ABSCH makes the specific national procedures and requirements of the supplier’s jurisdiction concerning the access and benefit-sharing readily available and understandable so as to make following of the rules and compliance with the supplier’s national legislation for the users possible.  

After the internationally recognized certificate of compliance (IRCC) as explained below is generated by the ABSCH, it is useful as evidence of a permit or equivalent was issued by the supplier to the user and the user has duly complied with the supplier country’s ABS rules and procedures. Such IRCC is useful in facilitating the users at checkpoints of the value chain process.

The aforesaid information collected at the checkpoints is published at the ABSCH in a format called a checkpoint communique (CBS) and is made publicly available.

ii) Supplier’s interests in the use of the ABS Clearing-House under Nagoya Protocol Access and Benefit-Sharing Clearing House:

For the suppliers, the ABSCH makes tools available in a centralized and standardized format that helps the monitoring of the use of their GR and TK once they leave their own jurisdiction throughout the value chain. To this end, the ABSCH generates an automatic internationally recognized certificate of compliance (IRCC) after the supplier country grants access to the users and publishes such information as permit or its equivalent.

As aforesaid, ABSCH generates a CBS that is also made available to the suppliers via an email to alert them along with all the interested parties in the value chain so as to keep them informed of the utilization of their GR and TK at various stages of the value chain. Thus, the ABSCH allows for the monitoring of the GR and TK once they leave the supplier country’s jurisdiction.

Reference: https://www.cbd.int/abs/en/ABSCHGuide.pdf; https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf.