Peru: Amaranth in the Potato Park
The CBD’s 10th Conference of the Parties, in Nagoya 2010 adopted an international legally binding protocol on access to genetic resources and benefit-sharing—the Nagoya Protocol. The Protocol aims to implement the CBD’s third objective on access and benefit sharing, and is binding on user countries as well as provider countries.
Previously, industrialised countries had no legal obligation to ensure benefits from using genetic resources were shared equitably. The protocol requires user countries to introduce legal, administrative or policy measures to ensure compliance with the access and benefit-sharing law of provider countries.
The protocol requires countries to take the following measures with respect to indigenous and local communities:
Legislative, administrative or policy measures to ensure benefits from the use of TK associated with genetic resources are shared fairly and equitably with the communities concerned, based on mutually agreed terms. The same applies to genetic resources that are held by indigenous and local communities, in accordance with domestic legislation.
Measures to ensure that TK associated with genetic resources is accessed with the prior and informed consent or approval and involvement of indigenous and local communities. The same applies to genetic resources, where communities have the established right to grant access.
Countries should take the customary laws, community protocols and procedures of indigenous and local communities into consideration when implementing the provisions on TK; and endeavour to support the development of community protocols for access and benefit-sharing relating to traditional knowledge.
However, the Protocol has some limitations that reduce the scope for benefit-sharing with countries and communities:
It does not apply to genetic resources collected before it enters into force, or explicitly to biochemicals derived from genetic resources (see art.2 & 3)
Enforcement mechanisms are weak – eg. it only requires one unspecified checkpoint in user countries.
It does not itself require the prior informed consent of indigenous or local communities, but requires countries to develop policy and legal measures for this, which will take some time.
Prior informed consent and benefit-sharing with indigenous and local communities for access to genetic resources held by them is to be “in accordance with domestic legislation”.
The Protocol emphasises state sovereignty over natural resources, but does not recognise the customary rights of communities. This is a concern for many indigenous and local communities, given their dependence on bio-genetic resources for food, health etc, and their role in conserving and improving many genetic resources.
The Protocol refers to Article 8(j) and the UN Declaration on the Rights of Indigenous Peoples in the preamble. However, it does not require the maintenance of traditional knowledge for conservation and livelihoods, or the protection of rights over associated traditional resources and lands and waters needed to sustain traditional knowledge.
The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: What is New and What are the Implications for Provider and User Countries and the Scientific Community?
E. C. Kamau, Fedder B. and Winter G. (2010).
Equitable benefit-sharing or self-interest? K. Swiderska (2010).IIED Opinion Paper.
Banishing the biopirates: A new approach to protecting traditional knowledge. K. Swiderska (2006). IIED Gatekeeper 129.