This article has been written by Mr Tanmay Ujjwal, a 1st-year student of Army Law College, Pune.

Abbreviation

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) is a supplementary agreement to the Convention on Biological Diversity, providing a legal framework for fair and equitable sharing of benefits from the use of genetic resources. Adopted on October 29, 2010, in Nagoya, Japan, it entered into force on October 12, 2014. The protocol emphasizes the sustainable use of biodiversity through transparent access procedures and benefit-sharing measures.

Core obligations include creating a legal framework for access, establishing rules on prior informed consent, and issuing permits. Benefit-sharing, both monetary and non-monetary, is required at a domestic level. The protocol also introduces obligations to support compliance with domestic legislation, contractual obligations, and dispute resolution in line with mutually agreed terms.

To assist implementation, parties establish National Focal Points and competent national authorities, formulate a Benefit Sharing Clearing House, build capacity, raise awareness, and facilitate technology exchange. Financial support is channelled through the Global Environment Facility.

India enacted the protocol on October 12, 2014, aligning with its objectives since 2002. India’s legislative framework includes the Biological Diversity Act of 2002, Biological Diversity Rules of 2004, and ABS Regulations of 2014. The three-tier institutional mechanism for implementation consists of the National Biodiversity Authority, State Biodiversity Boards, and Biodiversity Management Committees at the local level. India’s compliance report was submitted in 2017, highlighting its commitment to the protocol’s objectives and emphasising local community participation through Biodiversity Management Committees

Introduction

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity is a supplementary agreement to the Convention on Biological Diversity. This protocol provides a transparent and effective legal framework for the implementation of one of the three objectives of the Convention on Biological Diversity which is fair and equitable sharing of benefits arising out of the utilization of genetic resources.

It was adopted on 29th October 2010 in Nagoya, Japan and entered into force on 12th October 2014, after 90 days of deposit of the fiftieth instrument of ratification. The objective of the protocol is the sustainable use of biodiversity by sharing benefits that arise out of the utilization of genetic resources.

Core obligations of the Nagoya Protocol concerning genetic resources

The protocol has laid down certain core obligations that the contracting parties are expected to take measures regarding implementation 

• Obligation to provide access
  • Countries are required to create a legal framework that encourages certainty clarity and transparency in the country
  • Countries are required by the protocol to make arrangements for providing fair and non-arbitrary rules and procedures
  • Countries are required to establish clear Procedures and rules on prior informed consent and mutually agreed-term
  • The protocol also expects the countries to provide issuance of permit or something equivalent to it when access is granted to another country 
  • A member country of the protocol is also expected to create conditions favouring the promotion and encouragement of research and development which contributes to biodiversity Conservation and sustainable use
  • A member country is also expected to pay due records to the cases which concern present or imminent emergencies that are threatening human, animal or plant health
  • The country is also expected to consider the importance of genetic resources for agriculture and food security 
• Obligations to share benefit 
  • Benefit-sharing measures are to be provided at a domestic level as well for fair and equitable sharing of benefits which arise from the utilization of genetic resources with the Contracting party providing genetic resources Utilization of the cell genetic resources includes research and development on the genetic or biochemical composition of genetic resources as well as application and commercialization of such genetic results. Sharing is subject to the mutually agreed towns by the countries. The benefit which is to be shared may be monetary or non-monetary such as royalties and the sharing of research results
• Obligation to comply
  • Nagoya protocol has a significant innovation of its own which is some specific obligations to support compliance with the domestic legislation or regulatory requirements of the contracting party providing genetic resources and contractual obligations which are reflected in the mutually agreed terms the parties are contracting a required to
    • Create provisions that provide for the utilisation of genetic resources, and contractual obligations which are reflected in the mutually agreed terms, as required by another contracting party
    • If a contracting party is facing any violation of requirements then the other party is required to cooperate with the first party
    • Encourage contractual provisions on the resolution of the dispute to be in line with the mutually agreed terms
    • Ensure that an opportunity is available with the parties to seek recourse under their legal system when a dispute arises from the mutually agreed terms
    • Take measures so as to facilitate access to justice
    • Make provisions and take measures to monitor the utilization of genetic resources especially when they leave a country including by designating effective checkpoints at any stage of the value chain: research, development, innovation, pre-commercialization or commercialization
• Tools and mechanisms to assist implementation
  • To help the implementation of the protocol parties are required to establish National Focal Points (NFPs) and competent national authorities (CNAs) to facilitate communication by serving as contact points for information, granting access or cooperating on issues of compliance
  • To formulate a Clearinghouse to share information like domestic regulatory ABS requirements or information on NFPs and CNAs
  • To focus on building capacity to support key aspects of implementation. Based on a country’s self-assessment of national needs and priorities some examples of the same are:
    • Development of domestic ABS legislation so as to implement the Nagoya protocol 
    • Negotiate MAT
    • Development in a country of research capability and institutions
  • Raising awareness
  • Help in the exchange or transfer of technology
  • Target the financial support for building capacity and developing initiatives through the Nagoya protocol’s financial mechanism, the Global Environment Facility

India’s experience

This protocol was enacted in India on 12th October 2014, but the domestic legislation had already started to be inclined toward the purpose of the protocol from 2002 itself. India submitted its compliance report to the Convention Secretariat on 1st November 2017. India is a megadiverse country with a rich heritage, vital stakes in the realization of the objectives of the convention and the effective implementation of the protocol held by India 

• India’s Legislative Framework
  • India enacted the Biological Diversity Act in 2002 ( hereinafter referred to as the Act, 2002) with the intention of implementing the Convention with specific reference to its three core objectives. The next step was Biological Diversity Rules, 2004, (hereinafter referred to as Rules, 2004) were notified to spell out procedures and mechanisms for the implementation of the Act, 2002. These measures pre-empted a number of provisions that have been included in the protocol. After the protocol got into force, the guidelines on the access to biological resources and associated knowledge and benefits sharing regulations, 2014, (hereinafter referred to as ABS Regulation, 2014) were notified under the Act, 2002. These further strengthened the enforcement of the Act, 2002 in accordance with provisions of the protocol. The three instruments together prescribed a comprehensive scheme of processing the application for access to GRs and associated knowledge, and provided a template and terms for benefit sharing. The government has authority under the Act,2002 to issue notification as and when required to meet any exigencies 
• Mechanism for implementation
  • Implementation of Act 2002 is done through a three-tier institutional mechanism consisting of the national bad Iowa City Authority at the national level, State bar diversity boards at the state Govt level, and biodiversity management committees at the local level. NBA was constituted in the year 2003 song the office of the NBA is situated in Chennai which is the capital of the coastal state Tamil Nadu. Funds for the NBA come from the Union budget of India. The state biodiversity boards consist of all 29 states of India
  • Power is bestowed upon NBA and SBBs to grant approval for access to GRs and associated knowledge, Through sections 3, 7 and 23 of the Act 2002. BMC’s responsibility ensures the participation of local communities. Local communities of India are part of the mainstream. BMCs are constituted at the village level /  local level My elected municipal and Panchayat bodies and compromise the elected members of the local communities they have a direct link and interface with the local people. More than 62,000 BMCs have been constituted so far People’s biodiversity registers are required to be maintained by BMCs under section 41(1) Of the Act 2002 which mandates BMCs to document biological diversities found in their jurisdiction in the form of people’s biodiversity registers the documentation is done with the help and participation of local communities including women.

Conclusion

In conclusion, the Nagoya Protocol is a key supplement to the Convention on Biological Diversity, focusing on fair and equitable sharing of benefits from genetic resource utilization. Adopted in 2010, it outlines obligations for access, benefit sharing, and compliance. India, enacting the protocol in 2014, has had a robust legislative framework since 2002, emphasizing community participation. The protocol, with India’s active involvement, contributes significantly to sustainable biodiversity use and international cooperation.

References  

1. Unit, Biosafety. About the Nagoya Protocol. 9 June 2015, https://www.cbd.int/abs/about/.
2. Buck, Matthias, and Clare Hamilton. “The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity.” Review of European Community & International Environmental Law, vol. 20, no. 1, Apr. 2011, pp. 47–61. DOI.org (Crossref), https://doi.org/10.1111/j.1467-9388.2011.00703.x.
3. Flach, Joost, et al. “The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: Best Practices for Users of Lactic Acid Bacteria.” PharmaNutrition, vol. 9, Sept. 2019, p. 100158. ScienceDirect, https://doi.org/10.1016/j.phanu.2019.100158.
4. Ahrén, Mattias. An Explanatory Guide to the Nagoya Protocol on Access and Benefit-Sharing. 2012, https://www.iucn.org/resources/publication/explanatory-guide-nagoya-protocol-access-and-benefit-sharing.
5. “Nagoya Protocol – CBD COP10 [UPSC Environment Notes].” BYJUS, https://byjus.com/free-ias-prep/nagoya-protocol/. Accessed 16 Jan. 2024.