Nagoya Protocol - Basics
- 2010
- full name = “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”
- basically, it’s the protocol designed to address “bioprospecting”
Nagoya Protocol - Article 1
- Objective
- focus on “fair and equitable sharing of the benefits arising from the utilization of genetics resources” under CBD
- includes “appropriate access” and “appropriate transfer of relevant technologies”
“The objective of this Protocol is the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components.”
Nagoya Protocol - Article 5
- Fair and Equitable Benefit Sharing (pg. 1012)
5(1) - states supposed to come up with a method to share “in a fair and equitable way” upon “mutually agreed terms”
-> some concern that it doesn’t fully address bargaining power
5(2) - supposed to ensure the same kind of benefit sharing for “utilization of genetic resources that are held by indigenous and local communities”
-> BUT “in accordance with domestic legislation regarding the established rights of these indigenous and local communities over these genetic resources” (giving states a concerning level of control over the interaction)
Nagoya Protocol - Article 6
- Access to Genetic Resources
-6(1) - access to genetic resources = “subject to the prior informed consent of the Party providing such resources”
-6(2) - applies to Indigenous + local communities -> DIFFERENT language - “[E]ach Party shall take measures, as appropriate, with the aim of ensuring that the prior informed consent or approval and involvement of indigenous and local communities is obtained for access to genetic resources where they have the established right to grant access to such resources”
->concern of needing to have the right to grant access, + also concern of what “approval and involvement” signifies
-6(3)(g) - parties requiring informed consent are supposed to establish clear rules and procedures for establishing mutually agreed terms
Nagoya Protocol - Article 7
- Access to Traditional Knowledge Associated with Genetic Resources
- similar language and concerns to 6(2)
“In accordance with domestic law, each Party shall take measures, as appropriate, with the aim of ensuring that traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established.”
Nagoya Protocol and Indigenous Communities
- concerns arising out of level of control afforded to states - states often fail to respect rights of Indigenous communities + may be actively persecuting Indigenous communities -> deeply problematic to make communities’ control over genetic resources dependent on/moderated by state + domestic law
- also concerning switches in text (ex: “approval and involvement” added as alt to prior informed consent)
- also imposing an approach to the resources that Indigenous communities may not actually be asking for or interested in (protocol imposing a framework of commodification + IP when a particular community’s own framework/perspective/relationship w/ nature may not view nature as market resources)
Nagoya Protocol - Article 14
- Access and Benefit-Sharing Clearing-House and Information Sharing
- useful for generation of knowledge, capacity-building, info-sharing
- one of the mechanisms that can be developed under a treaty to provide a place for states to cooperate + share their interests
- “shall serve as a means for sharing of information related to access and benefit-sharing”
- “shall provide access to information made available by each Party relevant to the implementation of this Protocol”
Nagoya Protocol - Relationship to CBD
- concern that Nagoya builds on some of the problematic aspects of CBD - CBD emphasis on use/commodification of biodiversity, Nagoya talks about benefit sharing but almost seems to assume access
– on some level it’s weakening a bit the 8(j) protections for Indigenous communities (8(j) has some text of respecting Indigenous knowledge vs. Nagoya arguably loses that respect by presuming access to natural resources, doesn’t seem to give Indigenous communities as much of an option of refusing access) - q of what direction we’re heading in - is Nagoya reinforcing bioprospecting, or is it acknowledging that it’s happening + trying to create guardrails?
Arguments in Favor of GMOs
- crops - may be more drought-resistant, pest-resistant (+ therefore won’t require use of certain pesticides + chemicals)
-> can also have greater yields -> important re food security - nutrition, solving health crisis
Risks of GMOs
- can diminish diversity of crops used in agriculture
- costs to agriculture, communities, existing ways of life
- IP component - companies making the product have incentive not to give away
- spread of GMO plants - consequences of escape unknown
- can lead to enhanced herbicide or pesticide resistance among other species (unintended consequence)
- farmers struggling to compete w/ major companies who control GMOs (risk of the way the system is developing + who is in control of it)
- extent of risk/harm may depend on what you’re focused on
Application of Precautionary Principle
- precaution can be applied w/o being all or nothing - can go slowly, can regulate, can build in points of assessment -> can recognize the risk while trying to manage for it instead of letting it stop you entirely
- concern about who is taking the risk
- risk assessment in some way depends on who the players are (ex: Monsanto kind of automatically comes with connotations of lack of trust)
- extent to which people’s calculations of risk/risk tolerance are influenced by food security
Cartagena Protocol - Article 1
- Objective
- scope - solely focused on transboundary movement
- interesting to me that it specifically invokes Principle 15
- “adverse effects on the conservation and sustainable use of biological diversity” (in keeping with CBD), but also “risks to human health”
“In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration …, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements.”
Cartagena Protocol - Article 2
- General Principles
- Focused on state-to-state relations (not necessarily addressing the broader concerns we talked about regarding GMOs)
- Risk assessment + management –> not necessarily signaling GMOs are bad or inherently risky, just looking at state-to-state transport + risk assessment (emphasizing “manner that prevents or reduces risks”)
“The Parties shall ensure that the development, handling, transport, use, transfer and release of any living modified organisms are undertaken in a manner that prevents or reduces the risks to biological diversity, taking also into account risks to human health”
Cartagena Protocol - Article 4
- Scope
- still emphasizing transboundary movement
Cartagena Protocol - Article 3
- defines terms
Living modified organism (LMO) = “any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology”
Cartagena Protocol - Article 7
- need advanced informed agreement (AIA) before first intentional transboundary movement of LMOs for introduction into env of Party of import
- pursuant to Article 10 (part of AIA procedure, Party of import has veto power) -> would need to be in accordance with Article 15 (Risk Assessment)
Cartagena Protocol - Article 11
- deals with Biosafety Clearing House -> parties need to communicate info to this any time they make a decision regarding domestic use of an LMO
-> more transparency, can examine info regarding a particular LMO - 11(8) - explicit ability to act w/ precaution (lack of scientific certainty re potential adverse effects doesn’t mean you can’t make a decision on imports designed to minimize those effects)
- 11(7)- failure to communicate decision doesn’t imply consent or refusal (really need advanced informed agreement)
Cartagena Protocol - Articles 15 and 16
- Article 15 deals with risk assessment
->”shall be carried out in a scientifically sound manner” + “based, at a minimum, on information provided in accordance with Article 8 and other available scientific evidence” - Article 16 deals with risk management
-> “Parties shall… establish and maintain appropriate mechanisms, measures and strategies to regulate, manage and control risks identified in the risk assessment provisions of his Protocol associated with the use, handling and transboundary movement of” LMOs
-> “Measures based on risk assessment shall be imposed to the extent necessary to prevent adverse effects of the” LMO “on the conservation and sustainable use of biological diversity, taking also into account risks to human health”
Cartagena Protocol - Article 25
- Transboundary Movement
- Subparagraph 2 – burden of someone not complying is placed on the exporter – importing state is allowed to ask the party of origin to dispose at its own expense of LMO (Prof says there’s a sort of self-help measure to deal with other non-compliant parties)
- Subparagraph 3 – parties get to say when others are non-compliant in the Biosafety Clearing House (Prof said this is also a sort of self-help thing)
Cartagena Protocol - Compliance Committee
- Trying to get people to cooperate – providing advice or assistance, making recommendations
- There is a provision at the end though regarding cases of repeated non-compliance – COP can decide to take further measures, + can also publish instances of non-compliance
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Sources of International Law37
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Background Discussion of Env8
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Principles of Int Law17
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Players in Int Env Law31
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Compliance and Effectiveness35
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Foundational Principles of Int Env Law33
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Int Env Law - Timeline of Broader Developments15
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The Ozone Regime - Vienna + Montreal37
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Ozone Regime - Post-Montreal33
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Climate Change - Problem29
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Early Phase of Climate Change Regime22
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Paris Agreement42
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COP 2815
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Convention on Biodiversity33
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CBD - Protocols20
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CITES28
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Forests0
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Whales32
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International Trade30
