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 and International Environmental Law

Volumn 20, Issue 1, 2011, Pages 47-61

  Buck, Matthias ^a   Hamilton, Clare ^a  

^a Food and Rural Affairs   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

BIODIVERSITY; CONFERENCE PROCEEDING; GENETIC RESOURCE; INTERGOVERNMENTAL RELATIONS; SUSTAINABLE DEVELOPMENT; TRADITIONAL KNOWLEDGE;

AICHI; CHUBU; HONSHU; JAPAN; NAGOYA;

EID: 79960785132     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2011.00703.x     Document Type: Article

References (41)

1. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya, 30 October 2010). For information on CBD COP10, see CBD Secretariat, COP 10 (CBD, undated), found at
2. Earth Negotiations Bulletin, Tenth Meeting of the Conference of the Parties to the CBD: Summary Highlights of the Meeting (IISD, 2010), found at
3. See the statements by Yemen (on behalf of G77) and by Brazil during the opening session of the UN High Level Meeting on Biodiversity (New York, 22 September 2010) in General Assembly of the United Nations President of the 65th Session, High Level Meeting on Biodiversity, Statements (UN, undated), found at
4. See Convention on Biological Diversity (Rio de Janeiro, 14 June 1992) (CBD), Article 15.1
5. For an overview, see K. Ten Kate and S. Laird, The Commercial Use of Biodiversity: Access to Genetic Resources and Benefitsharing (Earthscan, 1999)
6. and Secretariat of the Convention on Biological Diversity, Access and Benefit-sharing in Practice: Trends in Partnerships Across Sectors, CBD Secretariat Technical Series No. 38 (CBD Secretariat, 2008)
7. See 'Overview of Recent Developments at National and Regional Levels Relating to Access and Benefit-sharing' (UNEP/CBD/WGABS/5/4, 30 August 2007), at 3
8. ABS is addressed in negotiations' as part of the Doha Development Round on the amendment of the TRIPS Agreement by a mandatory requirement to disclose the origin or source of genetic resources in patent applications. For details, see WTO, TRIPS Issues: Article 27.3b, Traditional Knowledge, Biodiversity (WTO, undated), found at
9. ABS for genetic resources and traditional knowledge is part of negotiations on the protection of rights over traditional knowledge, traditional cultural expressions and genetic resources in the WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. See WIPO: Program Activities: Intergovernmental Committee (WIPO, undated), found at
10. Article 15 CBD is the backdrop to ongoing negotiations on a pandemic influenza preparedness framework which address conditions for the sharing of virus samples and benefit-sharing obligations as regards developed vaccines. For details, see WHO, Documentation: Pandemic Influenza Preparedness (WHO, 2010), found at
11. ABS for genetic resources is part of discussions on marine biodiversity in areas beyond national jurisdiction. For details, see UN Oceans and Law of the Sea Division for Ocean Affairs and Law of the Sea, Marine Biological Diversity Beyond Areas of National Jurisdiction (UN Division for Ocean Affairs and Law of the Sea, 2011), found at
12. See 'Plan of Implementation of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August-4 September 2002' (A/CONF.199/20, 4 September 2002), Resolution 2, Annex, para. 44(o)
13. See Decision VIII/19 D, 'International Regime on Access to Genetic Resources and Benefit-sharing' (13 April 2004), found in 'Report of the Seventh Meeting of the Parties to the Convention on Biological Diversity' (UNEP/CBD/COP/7/21, 13 April 2004), Annex
14. The ABS WG was established by CBD COP5 in May 2000 and was initially tasked to develop guidelines and other approaches to assist Parties and stakeholders with the implementation of the access and benefit-sharing provisions of the Convention (see CBD Decision V/26, 'Access to Genetic Resources' (22 June 2000), found in 'Report of the Fifth Meeting of the Parties to the Convention on Biological Diversity' (UNEP/CBD/COP/5/23, 22 June 2000), Annex III). ABS WG3 in February 2005 was the first meeting of the WG after adoption of the negotiating mandate by CBD COP7
15. See S. Aguilar, et al., 'Summary of the Fourth Meeting of the Working Group on Access and Benefit-sharing of the Convention on Biological Diversity: 30 January-3 February 2006', 9:344 Earth Negotiations Bulletin (6 February 2006), found at
16. See CBD Decision VIII/4, 'Access and Benefit-sharing' (15 June 2006), found in 'Report of the Eighth Conference of the Parties to the Convention on Biological Diversity' (UNEP/CBD/COP/8/31, 15 June 2006), Annex. See also TRIPS Agreement (Marrakesh, 15 April 1994)
17. The Geneva Annex is included in CBD Decision IX/12, 'Access and Benefit-sharing' (9 October 2008), Annex I, found in 'Report of the Conference of the Parties to the Convention on Biological Diversity on the Work of Its Ninth Meeting' (UNEP/CBD/COP/9/29*, 9 October 2008), Annex I
18. For the summary reports of ABS WG5 in Montreal in November 2007 and ABS WG6 in Geneva in January 2008, see A. Appleton et al. 'Summary of the Fifth Meeting of the Working Group on Access and Benefit-sharing and the Fifth Meeting of the Working Group on Article 8(J) and Related Provisions of the Convention on Biological Diversity, 8-19 October 2007', 9:382 Earth Negotiations Bulletin (22 October 2007), found at
19. and S. Jinnah et al., 'Summary of the Sixth Meeting of the Working Group on Access and Benefit-sharing of the Convention on Biological Diversity, 21-25 January 2008', 21:416 Earth Negotiations Bulletin (28 January 2008), found at
20. For submissions, see CBD Secretariat, Access and Benefit Sharing: Relevant Documentation from the Negotiations of the Nagoya Protocol (CBD Secretariat, undated), found at
21. See Annex I to the report from ABS WG9, 'Report of the First Part of the Ninth Meeting of the Ad hoc Open-Ended Working Group on Access and Benefit-sharing' (UNEP/CBD/WG-ABS/9/3, 26 April 2010), Annex I. Importantly, the draft Protocol text in Annex I included a footnote clarifying that it was not negotiated by Parties during the Cali meeting
22. See S. Jungcurt et al., 'Summary of the Resumed Ninth Meeting of the Working Group on Access and Benefit-sharing of the Convention on Biological Diversity, 10-16 July 2010', 9:527 Earth Negotiations Bulletin (19 July 2010), found at
23. See S. Jungeurt and E. Morgera, 'Summary of the Interregional Negotiating Group on Access and Benefit-sharing: 18-21 September 2010', Briefing Note on the CBD ABS Negotiations (23 September 2010), found at
24. See Draft decision submitted by the President of the Conference of the Parties on 'Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization' (UNEP/CBD/COP/10/L.43/ Rev.1, 29 October 2010)
25. See the summary report on CBD COP10 by S. Jungcurt et al., 'Summary of the Tenth Conference of the Parties to the Convention on Biological Diversity', 9:544 Earth Negotiations Bulletin (1 November 2010), found at , section on 'Access and Benefit-sharing>
26. United Nations Declaration on the Rights of Indigenous Peoples (General Assembly Resolution 61/295, 13 September 2007)
27. See the Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits Arising out of their Utilization, found in Access and Benefit-sharing as related to Genetic Resources (CBD Decision VI/24, 27 May 2002), Annex, found in 'Report of the Sixth Meeting of the Parties to the Convention on Biological Diversity' (UNEP/CBD/COP/6/20, 27 May 2002), Annex I
28. Examples of interesting initiatives in this field are found at and
29. See, e.g., Report of the Meeting of the Group of Technical and Legal Experts on Traditional Knowledge Associated with Genetic Resources in the Context of the International Regime on Access and Benefit-sharing (UNEP/CBD/WG-ABS/8/2*, 15 July 2009), paras. 4-20 and 27-33
30. For example, 'Article 8(j) and related provisions' (CBD Decision V/16, 22 June 2000), Annex, para. 5, found in Report of the Fifth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/5/23 of 22 June 2000), Annex III; 'Article 8(j) and related provisions' (CBD Decision VI/10, 27 May 2002), found in Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/6/20, 27 May 2002), Annex I
31. See United Nations Declaration on the Rights of Indigenous Peoples, n. 29 above
32. See, e.g., Report of the Meeting of the Group of Technical Experts on an Internationally Recognized Certificate of Origin/source/legal Provenance (UNEP/CBD/WG-ABS/5/7, 20 February 2007), para. 19
33. See 'Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization' (CBD Decision X/1, 20 January 2011), para. 6, found in Report of the Tenth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/10/27*, 20 January 2011), Annex
34. See Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), Article 28
35. The foundation of Article 15 of the CBD (n. 3 above) on the notion of sovereign rights also explains why this provision does not apply to human genetic resources. This was already confirmed in 'Access to Genetic Resources' (CBD Decision II/11, 30 November 1995), para. 2
36. found in Report of the Second Meeting of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/2/19, 30 November 1995), Annex II and has also been confirmed for the Nagoya Protocol in 'Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization' (CBD Decision X/1, 20 January 2011), para. 5
37. found in Report of the Tenth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/10/27*, 20 January 2011), Annex
38. See Antarctic Treaty (Washington, DC, 1 December 1959), found at
39. For the ongoing negotiations in the WHO on a pandemic influenza preparedness framework, see WHO, Documentation: Pandemic Influenza Preparedness, n. 14 above
40. See, e.g., the submission from the international workshop on the topic of 'Access and Benefit-sharing in Non-commercial Biodiversity Research', Bonn, 17-19 November 2008 (UNEP/CBD/ABS/GTLE/1/INF/2, 29 November 2008.)
41. As mandated in CBD Decision X/1, 'Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization' (20 January 2011), Annex II, Section B, found in Report of the Tenth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/10/27*, 20 January 2011), Annex