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International Waters: Nagoya Enters "Rocky” Phase

October 15, 2013, 11:15 a.m. EDT


By John Dawes

As followers of this column might remember, I recently wrote a feature regarding draft legislation that was being discussed by the European Commission (EC) on biopiracy associated with the Nagoya Protocol on Access to Benefit Sharing (ABS). If this were to be approved, companies, agencies or individuals would need to obtain written consent from local or indigenous peoples before their genetic resources are exploited or use is made of traditional knowledge.

Seems straightforward enough, doesn’t it? At least, this is what the Berne Declaration and Natural Justice (see "Notes”) highlight in an official opinion piece that they issued jointly on June 18, 2013. They believe the draft regulation excludes "a significant category of genetic resources” and fails to provide for fair and equitable sharing of benefits…contrary to the aims of the Nagoya Protocol.

The arguments they put forward are somewhat technical, but they are well worth examining, because despite their technicalities, the implications are very real and potentially substantial with regard to ABS.

Nagoya Protocol
Because these plants were accessed, propagated and cultivated prior to the Nagoya Protocol coming into force, it should not be subject to ABS obligations, according to a draft EC document. John Dawes

The main issue revolves around the timing of when benefits become due to source countries regarding their genetic resources (from ornamental fish to medicinal plants and everything in between). According to the authors of the opinion piece, "it remains unclear whether ABS obligations are triggered by the utilization of genetic resources (GR) and traditional knowledge (TK), or only when GRs or TK are newly accessed.” Because GRs and TK already are being accessed widely, it is therefore perfectly possible for them to be used now, i.e., before the Nagoya Protocol comes into effect, or for their use to be delayed until after it has been implemented.

This, they feel, needs to be clarified unequivocally. They argue that, "if the position is taken that access of GRs or TK is what triggers ABS obligations, ongoing or new utilization of resources that have been accessed prior to the Protocol’s entering into force and are now outside their natural habitat would be excluded from the scope of national or regional regulations implementing the Nagoya Protocol.”

They go on to say that if this is the case, then "a large number of GRs found in local markets, international trade fairs, private collections and gene banks or botanical gardens would be freely usable, without triggering any ABS obligations after the Nagoya Protocol comes into force.”

Herein lies the big debate.

According to the EC draft on Nagoya implementation, ABS obligations are limited to GRs that are accessed after the Nagoya Protocol has been ratified. So, the fundamental issue, as far as the EC is concerned, is that it is access that triggers off ABS obligations, but only once the protocol is in place. In the majority of source countries, however, it is new use of GRs that triggers ABS obligations.

Obviously, this crucial difference has to be resolved because, as things stand, the EC would deem legal use, which would be deemed illegal by most ABS systems and the Convention of Biological Diversity (CBD) under whose wing the Nagoya Protocol falls.

Such a situation, according to the authors of the opinion piece, "will lead to greater legal uncertainty for European users of GRs, who may be in compliance with European laws but in breach of the ABS laws of the provider country.” Further, because "downstream use” is uncertain at the time of access, i.e., it is impossible to predict future (downstream) use, provider countries might feel that they need to impose "very restrictive procedures” to cover themselves against unforeseen future use.

They therefore conclude that it would be important not only to place "the principal regulatory burden in relation to ABS on the moment of physical access to GRs and TK, but also to include obligations on the moment of using such GRs and TK for the purposes of bioprospecting, research and development.”

genetic resources of waters
Irrespective of when any new genetic resources of waters such as these are accessed, it is the timing of their use that should trigger ABS obligations, according to many source countries. John Dawes

Trying to make sense of what is a somewhat convoluted situation, and attempting to put all this into context with regard to the ornamental aquatic industry, the following would seem to apply.

Say that a new species or morph of fish or plant is obtained (accessed) right now. As the draft EC document currently stands, no ABS obligations apply, or will apply, because access has been obtained prior to the Nagoya Protocol coming into force. For ABS obligations to apply, the EC maintains that access must take place after the protocol is ratified and implemented. However, this position contrasts with the obligations deemed applicable under the majority of ABS systems already in place in provider countries. These maintain that any new use triggers ABS obligations, irrespective (I presume) of the timing of the access.

According to the authors of the opinion piece, this discrepancy could be resolved if the emphasis were to be shifted away from access and toward use. So whether or not the hypothetical fish or aquatic plant is accessed prior, or subsequent, to the protocol coming into force, ABS obligations would begin only when the resource is used, e.g., in research and development or, one would assume, when a captive breeding or propagation program is established to turn the resource into a commercial item.

The Nagoya Protocol is, clearly, entering a "rocky phase,” because it is unlikely that the resolution of the above issue will be straightforward or that it will be done and dusted within a matter of weeks—or months.

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Notes
• The Berne Declaration is a Swiss nongovernmental organization (NGO) with more than 23,000 members. It has been promoting "more equitable, sustainable and democratic North-South relations since 1968” (www.evb.ch).
• Natural Justice is an international NGO consisting of "Lawyers for Communities and the Environment.” It has its headquarters in Cape Town, South Africa, and works with countries "to develop their legal capacity to affirm social and environmental justice” (www.naturaljustice.org).
• The full text of the opinion piece: Access or UtilisationWhat Triggers User Obligations? may be accessed at: /redirect.aspx?location=http%3a%2f%2fnaturaljustice.org%2fwp-content%2fuploads%2fpdf%2fSubmission-EU-ABS-Regulation.pdf.

 



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