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International Waters: Major Boost for Nagoya Protocol

Posted: June 18, 2014, 9:40 a.m. EDT

By John Dawes


The Nagoya Protocol on Access and Benefit Sharing (ABS) recently received a major boost when the European Parliament voted overwhelmingly for its acceptance throughout the European Union (EU).


The significance of this vote cannot be underestimated, as it marks the 30thratification of the protocol, which requires 50 ratifications before it can be implemented. The vote now opens the door for the EU’s 28 members to ratify the protocol individually. Should they all do this over the next few months, or even if eight decline to ratify it, the magic figure of 50 would be reached before the implementation date by the Convention on Biological Diversity’s (CBD) Conference of the Parties to be held this October.


According to María Julia Oliva, senior coordinator for policy and technical support at the Union for Ethical BioTrade, the EU vote "is a landmark vote that will significantly impact the way biodiversity-based R&D is conducted in the food and cosmetics industry.”

Should the ornamental aquatic industry be subjected to the full gamut of Access and Benefit Sharing protocol criteria? John Dawes

For its part, the European Federation of Pharmaceutical Industries and Associations (EFPIA) states: "We believe that the EU has been largely successful in striking a careful balance between competing considerations. It has proposed an innovative approach to the Protocol based on due diligence, which will encourage responsible utilization of genetic resources and promote compliance, while providing legal certainty for users of resources.”


The EFPIA has also welcomed the EU’s acknowledgement that there is a need for a regime that can be adapted to the needs of different business sectors. It believes that flexibility and a contract-based approach are necessary for responsible use of genetic resources by all stakeholders.


There is widespread general support for the protocol within the European corridors of power and the giants of the pharmaceutical, food and cosmetics industries. However, there is no mention in any of the recent reports of smaller industries, such as the ornamental aquatic sector. While such players are the source of livelihood for numerous thousands worldwide, they come nowhere near the pharmaceuticals industries and others like it, either in terms of money or personnel. Yet, they will be bound by the protocol in one way or another once it is fully ratified and implemented.


What form these legal obligations will take with regard to our own industry is a great unknown at the moment. However, with powerful organizations such as the EFPIA now saying that whatever regime is implemented must feature flexibility, recognition of the needs of different sectors and a contract-based approach, which should be supported by codes of conduct and best practices, the industry can perhaps hope that the aquatics sector may not have the same conditions imposed upon it as its larger counterparts.


As the proposed implementation date for the protocol draws near, the matter is causing increasing concern. Ornamental Fish International and the United Kingdom’s Ornamental Aquatic Trade Organization hope to prevent the development of a system that remains so expensive to administer that the revenue generated will disappear within the organization that collects the money. If it moves forward, then those who are supposed to benefit from these payments, i.e. the countries of origin, won’t receive their dues, as these "royalties” will be absorbed by the administrative machinery, with nothing (or very little) left for them.


A formula must also be found to prevent the industry from damage just because part of its business depends on the exploitation of the genetic resources of a number of countries. Further, it must do all it can to avoid being inundated by legislation, but if legislation is required, the industry believes that it should not have a retrospective component to it. Were a retrospective component to be introduced, it would create a nightmare scenario.


The fact is that ABS is being developed for industries in which companies make vast amounts of money by exploiting the genetic resources of countries of origin. This, however, is not the case with regard to the ornamental aquatic industry, which is tiny compared to many others.



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