Access to genetic resources and benefit sharing: Implications of Nagoya Protocol on providers and users

• Published date: 01 November 2018
• Date: 01 November 2018
• DOI: http://doi.org/10.1111/jwip.12095
• Author: Matthew Tsai,Kanchana Kariyawasam

DOI: 10.1111/jwip.12095

ORIGINAL ARTICLE

Access to genetic resources and benefit sharing:

Implications of Nagoya Protocol on providers and

users

Kanchana Kariyawasam

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Matthew Tsai

Department of Accounting, Finance and

Economics, Griffith Business School Griffith

University, Nathan Campus, Queensland,

Australia

Correspondence

Kanchana Kariyawasam, Department of

Accounting, Finance and Economics, Griffith

Business School Griffith University, Nathan

Campus, QLD 4111, Australia.

Email: k.kariyawasam@griffith.edu.au

The Nagoya Protocol is a comprehensive framework aimed

at combating biopiracy (where genetic resources are utilised

without the provider State's consent or in violation of

mutually agreed contractual terms), rewarding the steward-

ship of genetic resources and traditional knowledge, and

providing a tool for sustainable development. From a holistic

perspective, the Protocol is an incredible achievement;

however, it rests in its legal ambiguities which have

minimised the regulatory impact on user States. This article

examines the key components of the Nagoya Protocol and

critically analyses whether the Protocol facilitates its

objective of responding to asymmetries between the

interests of biodiversity-rich countries and the users of

genetic resources.

KEYWORDS

access to genetic resources, benefit sharing, implications of

Nagoya Protocol

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INTRODUCTION

The Conventionon Biological Diversity (CBD) performs a criticalrole in governing access to biological resources.The

fundamental premise of the CBD is that states have sovereignty over their genetic resources: as a result, access to

biologicalresourcesmust be regulatedby a nation's internallegislativeframework.The nations and thecommunities from

whichgenetic resourceshave originated, therefore,have a right to controlaccess to those resourcesand to receive a fair

share of the benefitsflowing from their specific use througha process called access and benefit sharing(ABS) (Louka,

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2006,cited in Jolly, 2015). Nonetheless, the ABS arrangements underthe CBD have been left largelyunimplemented at

the domestic levelby parties to the CBD. The urgent need that emerged was to ensure that genetic resources were

accessed by usercountries in accordance with priorinformed consent (PIC) and mutuallyagreed terms (MATs).

The Nagoya Protocol (NP) on access to genetic resources and the fair and equitable sharing of benefits arising

from their utilisation was adopted in 2010 in Nagoya, Japan, and entered into force in 2014. This legally binding

landmark treaty is an addendum to the CBD and was introduced with the aim of providing greater legal certainty and

transparency for both users and providers of genetic resources, as well as traditional knowledge (TK). In fact, it was

established to address some critical gaps in the CBD, obliging member states to take measures to ensure that only

legally acquired genetic resources and associated traditional knowledge (TK) were utilised within their jurisdictions.

The Protocol comprises 27 clauses in the preamble, 36 articles containing operative provisions and one annex

containing a non-exhaustive list of monetary and non-monetary benefits. The adoption of the Nagoya Protocol

spanned over eight years of negotiations and intense disagreement between developed countries (users) and

developing countries (providers), given the fact that developed (i.e. industrialised) countries had placed more

emphasis on facilitated access, whereas developing countries stressed the need for a better mechanism to recognise

benefit sharing and compliance (Richerzhagen, 2014).

Historically, countries and local communities that were the sources of genetic resources received insufficient

financial return for the use of these resources, leading to a lack of trust between user countries and the communities

and/or countries from where genetic resources were obtained (Morgera, Buck, & Tsioumani, 2012). The practice of

illegal access to genetic resources also continued unabated (Joseph, 2010). In response to these inadequacies, the

Nagoya Protocol establishes a mandatory requirement that genetic resources be obtained on the basis of ‘prior

informed consent’(PIC) (unless a party has determined otherwise) and ‘mutually agreed terms’(MAT) to facilitate

equitable sharing of benefits while taking into account the role of traditional knowledge (TK). The underlying

justification for the Nagoya Protocol is to protect nation states’sovereign rights over genetic resources and to achieve

fair and equitable benefit sharing that flows from commercialisation of a nation's biological resources. The Protocol

simply aims to facilitate equity between biodiversity-rich countries and the users of genetic resources, while creating a

win–win situation for the benefit of all parties involved. This is especially the case given that biological diversity is

generally more prolific in developing nations while the technological developments to utilise and tap the potential of

this biological diversity is the monopoly of the developed world (Louka, 2006, cited in Jolly, 2015).

Every party (with a party generallybeing a country) is required to establish its own national legislation governing

accessto genetic resourceswith the goal of ensuring that the benefitsof genetic resource utilisationare shared equitably

with provider nations (McCluskey et al., 2017). In particular,Article 15 of the Protocol emphasises that each party is

obliged to take ‘appropriate,effective and proportionate legislative,administrative or policy measures to provide that

geneticresources utilised within its jurisdictionhave been accessed in accordancewith prior informed consent andthat

mutually agreed terms have been established’. More importantly,the Protocol imposes a mechanism for sharing the

benefits,obtained by users of genetic resourcesand traditional knowledge(TK), with the countries and/or communities

from wherethese resources and this knowledgehave been sourced (Lewis, 2010a;Nagoya Protocol, 2010, art.14). The

necessity to cooperate witheach other in terms of enforcement and the provision of sufficientcompensation is also

placedon both user and provider countries (Kuruk,2015; Nagoya Protocol, 2010, art. 10). This extendsto encompassing

instancesin which the resource is found within more than one jurisdiction(Kuruk, 2015; Nagoya Protocol,2010, art. 11),

thereby preventing the possibility of users giving preference to groups that provide access to a genetic resource or

traditional knowledge (TK) over those in other jurisdictions providing the same access, but on less favourable terms

(Kuruk,2015). Under Article18 (1) (c), parties are requiredto encourage the inclusionof dispute settlement mechanisms,

including arbitrationand mediation, within the ‘mutually agreed terms’(MATs).

Moreover, under the Nagoya Protocol, users are required to observe any domestic laws of the country in which

the subject matter was obtained (Nagoya Protocol, 2010, art 6(1) & 7). This could include, for example, legislation with

respect to the environment or the collection of materials from national parks and other similar areas (Verkley, Martin,

& Smith, 2016). These compliance obligations are applicable to all parties to the Protocol which specifies that each

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