Access and benefit sharing, the Nagoya Protocol.

ABS and the Nagoya Protocol are part of the UN Convention on Biological Diversity, (CBD) to which the UK, Northern Ireland and the Republic of Ireland became signatories in 1992, this was ratified (agreed by the UK and Irish parliaments and passed into law) in 1994 and 1996 respectively.

One part of the CBD dealt with access to, and fair distribution of, the benefits from genetic resources.  This recognises two key concepts: one that it is important for there to be access to genetic resources and two, that it is equally important that benefits arising from use of those resources are shared with the owners.

The basic assumption underlying this is that governments have the authority to regulate access to genetic resources in areas under their jurisdiction; however, this does not mean that they own the resources.  The primary concepts within the Nagoya Protocol (access to resources, prior informed consent, mutually agreed terms, equitable sharing) have been present since the original Convention, signed in 1992. What the Nagoya Protocol adds is a more robust framework as to how this will be achieved.

The initial ABS system was intended to work as an agreement between two parties (the provider and the user), governed by mutual agreement within the terms of the CBD and national law. However lack of national laws, lack of clarity or transparency, misunderstandings, and misuse led to a situation that was largely unworkable. It should be clearly understood that the Convention, Protocol and legislation relating to it, are not designed to restrict fair access to genetic resources; restrictions on access are imposed by individual states.

The EU

The Nagoya Protocol entered into law in the EU on the 12th October 2014, on the same date EU ABS Regulation 511/2014 also comes into force. Some secondary legislation, concerning:

Article 5 (http://www.cbd.int/abs/text/articles/?sec=abs-05)
Article 7 (http://www.cbd.int/abs/text/articles/?sec=abs-07)
and Article 8 (http://www.cbd.int/abs/text/articles/?sec=abs-08)

is still under development and concerns further measures to be taken by EU Member States(these areas are quite clear if you refer to the Articles in question) The draft implementing acts for the secondary legislation are soon to be published by the EU. There will be a consultation on the draft EU implementing acts, and a stakeholder meeting (both via DEFRA) once the documents have been published. The negotiation process within the EU to finalise the acts is not due to start until December.

The UK

Some of the key obligations of member states within the EU will only enter into application on the 12th October 2015; these include all the possible measures that competent authorities can take in cases of non-compliance, and penalties for non-compliance.  DEFRA is currently working with other ministries on the best approach to implement the compliance elements of the Protocol, and this will be presented as either a UK Statutory Instrument or a consultation follow-up.

Scope of ABS
Genetic resources are defined as: “genetic material of actual or potential value”, and “any material of plant, animal, microbial or other origin containing functional units of heredity”. It is clear from the CBD context that it refers to resources needed for their genetic material and not for other uses (such as timber). It excludes human genetic resources.

The Nagoya Protocol has no defined temporal scope, but according to the Vienna Convention a treaty cannot apply prior to the date that it entered into force for that party. Therefore the Nagoya Protocol does not apply to genetic resources and traditional knowledge acquired prior to 12th October 2014.

How will it work?
This is an international treaty – it does not apply to material originating within the state in question, this is governed by national law.

Under the terms of the CBD and the Nagoya Protocol, users of genetic material will be required to obtain prior informed consent (PIC) from the owner of those resources, on mutually agreed terms. (MAT). For example, should a trip be organised to country X to collect seed of species Y, it will be necessary to find out what the legal requirements with regard to ABS are in that country, who to contact, and with whom arrangements and agreements need to be made. This will need to be investigated some months or years prior to the trip, to allow for the necessary negotiations ( for example, the plant in question may be in an area owned not by the government but an indigenous group, who are concerned about exploitation both by their own government and overseas visitors, such situations require diplomacy!).

Genetic resources that are already in this country but were collected since 1992 should have paperwork detailing the consent, and the terms under which it was given. The Nagoya Protocol is effective from the 12th October 2014, with some of the key obligations within the EU from 12th October 2015.

What should I do now?

Much of the information needed for users is not yet compiled, but there are things that you can do to make things easier for yourself.

Users will be expected to be able to demonstrate that they have exercised ‘due diligence’ with regard to their acquisition and use of genetic resources. This effectively means users maintaining a ‘paper trail’ of information related to plants that have been collected in the wild.

It is important to record the source and date acquired of all your plants – even those from commercial sources. This is one of the requirements of National Collection status.

For wild collected material, even if you did not make the collection yourself, you need to record the Collector’s number and retain a copy of the paperwork (permits, agreements etc) if you have access to it. The Collector’s number allows the paperwork for the original collection to be connected to the plant. If you have purchased the plant commercially, you should find that the number is traceable to the collector, and they will retain the paperwork. If you need to discover details of the agreement under which that plant was collected you can contact them.

It is important that you only exchange material from the plant in line with the agreement made when the plant was collected. For example material collected by a botanic garden from overseas will have conditions under which that material was collected. This may be that the material can only ever be used in one botanic garden, or it may be that it can be exchanged with others provided it is only for non-commercial purposes. There are many different types of agreement.

It remains to be determined what degree of diligence is required of the user in investigating material with unclear origins.

As further information becomes available, it will be added.

Useful information

There is an ABS Clearing House, (https://absch.cbd.int/) where information will be kept to allow for easy access to information from all parties to the Protocol. This will be the first point of call for information with regard to making use of a genetic resource acquired since the date that the Treaty came into force. Eventually, all the information with regard to contacts, legislative, policy and administrative issues for the state in question will be available here.

Each country will have a National Focal Point:  https://absch.cbd.int/countries/GB , a Competent National Authority, and a publishing authority. The focal point will act as a source of information for those looking to access genetic resources, traditional knowledge, and information held in that state.

The CBD and signatories: http://www.cbd.int/countries/default.shtml?country=gb

The UK Clearing House mechanism for Biodiversity:

http://uk.chm-cbd.net/default.aspx?page=0

Bibliography

CBD Secreteriat, n.d. Article 8 CBD. [Online]
Available at: http://www.cbd.int/convention/articles/default.shtml?a=cbd-08
[Accessed 31 October 2014].

CBD Secreteriat, n.d. Nagoya Protocol Article 3. [Online]
Available at: http://www.cbd.int/abs/text/articles/?sec=abs-03
[Accessed 31 October 2014].

Greiber, T. et al., 2012. An Explanatory Guide to the Nagoya Protocol on Access and Benefit-sharing., Gland, Switzerland: IUCN.

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