The Nagoya Protocol – a long time coming

The agreement encompasses some of the most pressing issues of our time (and several of the UN Sustainable Development Goals) and supports the continued exploration and development of natural products (medicines, foods) for the betterment of human health and wellbeing globally, whilst making sure that this is not at the expense of indigenous communities, less economically developed nations or the planet but directly beneficial to them.

The stated goal of the protocol is “the fair and equitable sharing of benefits arising from the utilization of genetic resources, thereby contributing to the conservation and sustainable use of biodiversity”. Where traditional knowledge has contributed to the identification of useful compounds occurring within natural products, the indigenous communities are to be consulted and mutually agreeable terms negotiated to ensure the equitable sharing of any benefits arising from the use of this knowledge.

This is potentially an extraordinary piece of international legislation and it’s been a long time coming. Part of the UN’s Convention of Biological Diversity (CBD), work towards an agreement on Access and Benefit Sharing (ABS) began in 1997-98 with the establishment of an expert panel and culminated in the Nagoya Protocol in 2010. The agreement entered into force in October 2014 and has steadily taken root within EU (April 2014) and UK (March 2015) legislation.

But what does the protocol mean in practice?

Firstly, the protocol doesn’t apply to genetic resources identified and developed prior to 12 October 2014 but it does mean that as part of due diligence procedures it will be necessary to demonstrate that the materials pre-date the commencement of the protocol.

Anyone wishing to obtain and use new materials must obtain Prior Informed Consent (PIC).  This means that relevant parties in the provider country must be informed about the potential uses of the genetic material and if any indigenous knowledge is attached to the compound of interest then these communities must also be consulted as part of negotiating Mutually Agreeable Terms (MATs).

Benefit sharing is considered within the Mutually Agreed Terms. Benefits are supposed to be “directed in such a way as to promote conservation and sustainable use of biological diversity” and contribute to alleviating poverty. Potentially, benefits could include financial rewards including the setting up of trust funds for indigenous communities but are more likely to be activities and projects that contribute to the above stated goals, such as capacity-building, training, exchange programmes and access to relevant information and technology.

The EU regulations relating to the implementation of the Protocol require that due diligence will have to be demonstrated when researchers are recipients of funding for research involving the utilisation of genetic resources and at the final stage of product development (if applicable). This means providing evidence of the date and place that the genetic material was accessed, the source of the DNA and where applicable any permits or MAT agreements associated with the genetic resource.

Failure to demonstrate compliance with UK regulations relating to the implementation of the Protocol may eventually result in civil action. A series of notices to comply or halt work will be issued if due diligence has not been proven. Ultimately action against those who fail to comply could escalate to a fine of up to £5000 or 3 months in prison or an unspecified fine and 2 years in prison for indictable offences.

Information relating to the protocol on the CBD website is extensive and ranges from fairly basic fact-sheets that serve as introductions to the Nagoya Protocol and Access and Benefit Sharing and the terms of the agreement (e.g. Genetics, Traditional Knowledge, National Implementation) to a detailed overview of the protocol put together by the IUCN. The CBD have provided a short video. EU and sector specific guidance is in development and expected in 2016 and 2016/17.

Big heart, no teeth?

The underlying rationale of Access and Benefit Sharing (ABS) is that by imbuing the source of genetic material with a value (as agreed in the MAT which could include but is not limited to a financial value) it encourages biodiversity as a whole to be valued and in this way creates an incentive to sustainably use and conserve both the resource and the wider biodiversity of the region. However, as this IUCN guide points out, there is no specific legislation that defines how the protocol, via the MAT and benefit sharing, ensures that these conservation and sustainability goals are achieved or how parties to the protocol can enforce them. The legislation leaves this key value of the protocol wide open for interpretation. Overall it seems that the protocol has its heart in the right place but it’s a little bit toothless.

At the same time the Nagoya Protocol is a stride in the right direction. On first learning about the protocol I couldn’t help wonder what the world would look like now if the protocol had been around 100-150 odd years ago. Sugar, chocolate and tropical fruits – these and many other natural products were taken from one place (Asia, South and Central America, Africa) and (via Dutch, British, French and American interests) introduced and grown around the world, especially in the global south, a colonial practice that represented a contributing factor to massive inequalities globally in terms of power and wealth. Inequalities that persist to this day.

Whilst we might roll our eyes at yet more bureaucracy the protocol is a statement to the effect that this modus operandi is not acceptable. And that should be welcomed. It also recognises that environmental, social and economic problems are intrinsically linked and that their solution must also be.

For further information visit the .gov website. https://www.gov.uk/guidance/abs