Unraveling the Nagoya Protocol

Elisa Morgera (LLM, University College London; PhD, European University Institute) is Senior Lecturer in Global Environmental Law at the University of Edinburgh School of Law. She is the author of Corporate Accountability in International Environmental Law (OUP, 2009) and co-author of Environmental Integration in the EU's External Relations (Hart, 2012), and has published extensively on international biodiversity law.Elsa Tsioumani (LLM, College of Europe) is a lawyer specializing in international and European environmental law. She is currently an ERC Research Fellow at the University of Edinburgh School of Law. She has consulted for various international organizations, and has published extensively on international biodiversity law and policy.Matthias Buck (Ass. iur, M.A.) works with the European Commission and is currently seconded to the German government, advising on EU aspects of the energy transition project. He was the main EU negotiator of the Nagoya Protocol from 2007 to its adoption. He has published widely on EU and international environmental policy and law.

• PREFACE by Prof. Francesco FrancioniACKNOWLEDGEMENTS LIST OF ABBREVIATIONSTABLE OF CITED LEGAL MATERIALSINTRODUCTIONI. The International Debate on Access and Benefit-sharing 1. Asymmetries and the Ethical Rationale for ABS2. An Incentive-based Approach to Biodiversity Conservation and the Economic Rationale for ABS3. The ABS Provisions of the CBD II. From the CBD to the Nagoya Protocol via the Bonn Guidelines III. Traditional Knowledge and ABS IV. Indigenous Peoples and Local Communities as Beneficiaries of the CBD and the Nagoya Protocol1.Internationally Recognized Human Rights of Indigenous Peoples2.Internationally Recognized Rights of Local Communities3.Human Rights-related Risks and Opportunities, Limitations and Innovations under the ProtocolV. About This CommentaryARTICLE 1I. Overview II. Objective and MeansIII. Traditional KnowledgeIV. Links with Conservation and Sustainable UseV. Legal and Practical FunctionsARTICLE 2I. Overview II. Utilization of Genetic Resources1.The Intent2.The Materiala.Derivativesb. Commodities in tradeIII. Utilization of Traditional KnowledgeARTICLE 3I. OverviewII. Subject-matter Scope1. Human Genetic ResourcesIII. Outstanding Questions1. Temporal Scope2. Spatial ScopeARTICLE 4I. OverviewII. Relationship with Existing Agreements 1. Examples of Existing Agreements III. Relationships with Future Agreements1. WIPO NegotiationsIII. Relationship with Specialized ABS Instruments1. Genetic Resources covered by the ITPGRFA 2. Genetic Resources with Pathogenic Properties3. Marine Genetic Resources in Areas beyond National Jurisdiction 4. CGRFAARTICLE 5I. OverviewII. Inter-State Benefit-sharing from the Utilization of Genetic Resources1. Means of ImplementationIII. Intra-State Benefit-sharing from the Utilization of Genetic Resources Held by Indigenous and Local Communities1. States’ Obligation2. ‘Established Rights’ and Other QualificationsIV. Benefit-sharing from Traditional KnowledgeV. The Role of Mutually Agreed TermsVI. Monetary and Non-monetary BenefitsARTICLE 6I. OverviewII. Background III. Access to Genetic Resources: The Inter-State Dimension1. National Sovereignty over Genetic Resources and Domestic Measures on Access2. The Concept of State PICIV. Access to Genetic Resources Held by Indigenous and Local Communities 1. Parties’ Obligation2. The Concept of Community PIC concerning Genetic Resources a. Approval and Involvementb. Community PIC and Private-sector UsersV. Access Standards1. Legal Certainty, Clarity and Transparency2. Fair and Non-arbitrary Access Rules and ProceduresVI. Minimum Procedural Requirements for PICVII. Minimum Requirements for MATARTICLE 7I. OverviewII. Community PIC in relation to Traditional KnowledgeIII. QualificationsARTICLE 8I. OverviewII. Research Contributing to Conservation and Sustainable Use1. Rationale2. The ObligationIII. Genetic Resources and Health-related EmergenciesIV. Genetic Resources for Food and Agriculture ARTICLE 9I. OverviewII. Contribution to a Coherent Interpretation of the Three CBD objectivesIII. Means of Implementation IV. Benefits for Indigenous and Local CommunitiesARTICLE 10I. OverviewII. The Need for a Multilateral Benefit-sharing Mechanism 1. Transboundary Situations 2. Situations Where It Is Not Possible to Grant or Obtain PIC III. Features of a Global Benefit-Sharing MechanismIV. Promoting a Coherent Interpretation of the Three CBD ObjectivesARTICLE 11I. OverviewII. Obligation to CooperateIII. Transboundary Cooperation concerning Genetic ResourcesIV. Transboundary Cooperation concerning Traditional knowledgeARTICLE 12I. OverviewII. General Clause1. Community ProtocolsIII. Obligation to Inform Potential UsersIV. Obligation to SupportV. Prohibition to Restrict Customary Use and ExchangeARTICLE 13I. OverviewII. National Focal PointsIII. Competent National AuthoritiesARTICLE 14I. OverviewII. Link with the CBD Clearinghouse MechanismIII. The Functions of the ABS ClearinghouseIV. Types of InformationV. Outstanding Legal Issues ARTICLE 15I. OverviewII. ‘Compliance’ under Articles 15 and 16: Context and Responses to Conceptual ChallengesIII. Obligation to Adopt Domestic User-side Measures1.The Obligation to ‘Provide’2.Means of ImplementationIV. Obligation to EnforceV. Obligation to CooperateARTICLE 16I. OverviewII. Similarities and Differences vis-à-vis Article 15III. Lack of Parallel Provisions on Compliance concerning ABS related to Genetic Resources and ABS related to Traditional KnowledgeARTICLE 17I. OverviewII. Checkpoints1. Characteristics and Functions III. The Internationally Recognized Certificate of ComplianceARTICLE 18I. OverviewII. Dispute Resolution Provisions in MATIII. Opportunity to Seek RecourseIV. Access to Justice and Recognition of Foreign JudgmentsV. Jurisdiction and Access to Justice in cases of Violation of Provider Country ABS Frameworks ARTICLE 19I. OverviewII. Obligation for PartiesIII. Mandate for the Protocol’s Governing BodyARTICLE 20I. OverviewII. Obligation for PartiesIII. Mandate for the Protocol’s Governing BodyARTICLE 21I. OverviewII. Specific Relevance for Indigenous and Local CommunitiesIII. Linkages with Other ProvisionsARTICLE 22I. OverviewII. The Obligation to CooperateIII. Country-driven Capacity-buildingIV. The Capacity of Indigenous and Local Communities and Other Stakeholders V. ABS-related Development CooperationARTICLE 23I. OverviewII. Technology Collaboration and CooperationIII. Technology TransferARTICLE 24ARTICLE 25I. OverviewII. Financial MechanismIII. Other Bilateral, Regional and Multilateral Channels for Financial Resources ARTICLE 26I. OverviewII. The Functioning of the COP/MOPIII. Relationship with the CBD COPARTICLE 27ARTICLE 28ARTICLE 29I. OverviewII. Functions and LinksARTICLE 30I. OverviewII. Common FeaturesIII. Distinctive Features1. Compliance in Bilateral Relations between Provider and User Countries2. Compliance vis-à-vis Indigenous and Local Communities 3. Compliance in State-Private Parties Relations IV. Links with Other Protocol ProvisionsV. Dispute Settlement ARTICLE 31I. OverviewII. Functions and LinksFINAL CLAUSESI. OverviewII. Signature and Entry into Force III. Reservations IV. Withdrawals V. Official Languages CONCLUSIONSI. Sustainable DevelopmentII. EquityIII. Due Diligence IV. Environmental Rights V. Final Words of Caution APPENDIX: TEXT OF THE PREAMBLE OF THE NAGOYA PROTOCOL BIBLIOGRAPHY