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 is an international agreement. It was created under the aegis of the United Nations. It aimed to equitably share the benefits arising out of the use of genetically modified organisms. It was adopted at the tenth meeting of the Conference of the Parties on 29 October 2010, in Nagoya, Japan.

This topic of the Nagoya Protocol is important from the perspective of the UPSC IAS Examination which falls under General Studies Paper 3 under the Indian Ecology and Environment section. For further information and an explanation of the topic visit UPSC CSE Coaching here!

In this article, we shall discuss the Nagoya Protocol. We shall have an insight into its major objectives and obligations apart from the discussion about the set targets under the protocol and its implementation in India.

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Latest Updates on the Nagoya Protocol

The Nagoya Protocol celebrated its 10th anniversary in October 2024. This evoked reflections on its success and challenges in implementation by its 142 Parties. Additional states are ratifying and applying the Protocol. Costa Rica, for example, became a party in December 2024. Cameroon ratified the Protocol in early 2024 to preserve its biodiversity and traditional knowledge.

The successful implementation of the Nagoya Protocol is considered vital for achieving the goals of the Kunming-Montreal Global Biodiversity Framework adopted at CBD COP15.

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The Nagoya Protocol was adopted at the tenth meeting of the Conference of the Parties on 29 October 2010, in Nagoya, Japan, however it went into effect on October 12, 2014. The protocol is a supplementary document to the United Nations Convention on Biological Diversity (UNCBD). As of April 2022, 137 parties had ratified the Nagoya Protocol, including 136 UN member states and the European Union. India, too, is a member of the Nagoya Protocol.

The main aim of the protocol is to operationalize one of the three objectives of the UNCBD namely conservation, sustainable use, and fair and equitable sharing of benefits arising from the utilization of biological resources and knowledge associated with them.

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Nagoya Protocol Objectives

The objective of this Protocol is as under:

• It seeks to promote equitable and just distribution of the benefits derived from the use of genetic resources.
• It provides sufficient access to genetic resources and proportionate transfer of pertinent technologies.
• It takes into account the rights over these resources and to technologies.
• It aims at conservation of biological diversity and the sustainable use of its components by appropriate funding.
• It also fosters the growth of genetic resource research by increasing legal certainty and fostering benefit-sharing, which could lead to new discoveries for the benefit of all.

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With regards to access to genetic resources, benefit-sharing, and compliance, action is called for from the parties to the protocol.

Access to Genetic Resources

• Article 15(1) of the CBD states the authority of the national governments to regulate physical access to genetic resources in areas within its jurisdiction.
• Further under article 6 of the Protocol, access to genetic resources for its utilization is subject to prior informed consent of the Party providing such resources or a Party that has acquired the genetic resources in accordance with the Convention.
• Further, the protocol ensures the involvement of indigenous and local communities in the access to genetic resources where they have the established right to grant access to such resources.
• It mandates each party to the convention to:
  • Ensure that it’s domestic access and benefit-sharing legislation or regulatory requirements provide legal certainty, clarity, and transparency;
  • Provide for fair and non-arbitrary regulations and processes for accessing genetic resources.
  • Set out criteria and/or mechanisms for gaining prior informed consent or approval, as well as the involvement of indigenous and local communities as per domestic legislation, for access to genetic resources.
  • Establish clear norms and procedures for requiring and setting mutually agreed-upon terms.
  • Provide instructions on how to obtain prior informed consent.

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Benefit-sharing Obligations

• In accordance with Article 15 of the Convention, benefits arising from the utilization of genetic resources as well as its subsequent applications and commercialization shall be shared in a fair and equitable way with the Party providing such resources or a Party that has acquired the genetic resources in accordance with the Convention. Such sharing shall be upon mutually agreed terms.
• The protocol mandates each party to take legislative, administrative, or policy measures to ensure that benefits arising from the utilisation of genetic resources are shared in a fair and equitable way with the communities concerned, based on mutually agreed to terms
  • Further, these benefits may be monetary or nonmonetary. It can be in the form of royalties or the state of sharing the research results.

Compliance Obligations

The parties to the agreement must:

• The parties to the agreement must ensure that any traditional knowledge associated with genetic resources 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.
• The parties must cooperate when the same genetic resources are available with more than one party in situ.
• Parties shall take appropriate, effective, and proportionate measures to address non-compliance with appropriate, effective, and proportionate legislative, administrative, or policy measures.
• Both Parties shall make it a requirement that a chance to pursue recourse exists under their respective legal systems, in line with jurisdictional demands applicable thereto, where disputes over mutually agreed terms occur.
• Each Party shall monitor the implementation of its obligations under this Protocol and shall, at intervals, report to the Conference of the Parties serving as the meeting of the Parties to this Protocol on measures it has taken to implement this Protocol.

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India and Nagoya Protocol

India signed the Nagoya Protocol in 2012. India already has the Biological Diversity Act, 2002, which is earlier than the Nagoya Protocol but is consistent with its goals. The Act provides for regulation of access to biological resources and traditional knowledge associated with them and benefit-sharing with local communities.

The NBA plays a crucial role in implementing the Biological Diversity Act and ensuring compliance with the Nagoya Protocol in India. It grants approvals for access to biological resources and ensures fair and equitable benefit-sharing.

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Significance of Nagoya Protocol

The importance of the Nagoya Protocol is as follows:

• The Nagoya Protocol has undeniable significance in trying to attain the Millennium Development Goals, making sure that the advantages of genetically modified products are shared fairly among all concerned.
• By providing incentives for conservation and responsible use of genetic resources, the Nagoya Protocol increases the contribution of biodiversity to growth and human well-being.
• The protocol encourages benefit sharing, which improves genetic resource conservation and its sustainable use in the longer term.
• It improves legal transparency and clarity for producers and users of genetic resources.
• It creates more dependable terms for access to genetic resources.
• It further contributes to the Indigenous and local communities and their traditional knowledge associated with genetic resources by establishing a legal system.

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Criticisms of Nagoya Protocol

The criticisms of the Nagoya Protocol are as follows:

• Article 2 of the CBD defines genetic resources as "genetic material of actual or potential value", with "genetic material" material with heredity units. However, this definition still needs more precision both legally and scientifically.
• Some Parties to the Nagoya Protocol still need to publish the required information on the ABS Clearing-House, hindering its implementation.
• Challenges include creating ABS measures that ensure benefit-sharing while remaining legally clear and avoiding complexities, delays, and added user costs, especially considering limited human resources.
• The Nagoya Protocol applies its obligations to all Parties without distinguishing between resource users and providers.
• Issues concerning indigenous peoples and local communities encompass determining their role at the national level, their rights to genetic resources and traditional knowledge, the diversity and organization of these groups, and linking traditional knowledge to its holders.
• Concerns exist that bureaucracy may impede research, conservation, global responses to diseases, and biodiversity monitoring and collection.

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The UNCBD and the Nagoya protocol hold immense importance for developing equitable partnerships among countries with a focus on the potential benefits of products resulting from basic and applied research on such resources. The near universal ratification of the CBD and wider acceptance of the protocol have provided a much better basis for collaborations aiming at sustainable and equitable development of resources.

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