Does the Nagoya Protocol apply retroactively to biological collections?

Posted by anon on 05/30/2019.

This Post Has 2 Comments

  1. botanista

    This comment is based on my reading of
    Retroactive Nagoya compliance is a grey area but of great importance to the world.
    Some people think that the Nagoya Protocol framework should retroactively apply as of the 1993 date. Others think it should be 2014 when the Protocol was put into force. The 2014 date is supported by the Vienna Convention on the Law of Treaties Article 28 that “states that provisions of an international treaty are not binding to any act that took place before said treaty entered into force.” It is also practically very difficult to gather all the needed information for genetic resources collected decades ago.

    Based on my reading, it looks like minimally, an ABS framework agreement and a materials transfer agreement are needed for all genetic resources and associated traditional knowledge that fall under Nagoya Protocol jurisdiction after October 2014. However, countries can choose to honor the 1993 date if they choose. The best practice is to keep documentation about the acquisition of the resource, the original terms, the provider, and the research on the collection that has taken place since acquisition, and to try to retroactively obtain permission that would establish consent and benefit sharing. For some legacy collections, identifying the provider is difficult. People are encouraged to try three times to find a community to represent the provider of the resource, and to keep those attempts documented. Many institutions are trying to do this for collections made long before 1993.

  2. botanista

    Traditional knowledge (Intellectual property) is more complicated. I am basing this response on the IUCN Environmental Policy and Law Paper No. 83 titled “An Explanatory Guide to the Nagoya Protocol on Access and Benefit-sharing” by Grieber et al.

    If there is a use that stemmed from intellectual property provided prior to the Nagoya Protocol entering into force (October 2014), if the use ceased, there is no retroactive benefit-sharing that needs to be imposed. However, if the use continues after October 2014 then retroactive benefit sharing is necessary. We can imagine hundreds of products that are based on traditional knowledge learned ages ago that enabled commercialization of a biological resource. Those companies benefitting from that knowledge should seek a mechanism for benefit sharing although access to the genetic resource is not restricted.

    “Indeed, the extent to which access and benefit-sharing requirements are connected is an issue,
    particularly in regards to traditional knowledge associated with genetic resources, linked to the temporal
    scope of the Nagoya Protocol. It has been pointed out that the access provisions in the Protocol are
    formulated in a way that suggests that they only apply to genetic resources and traditional knowledge
    associated with genetic resources accessed following the entry into force of the Protocol. It has also
    been argued, however, that from this conclusion it naturally follows that the same applies to the benefit sharing
    provisions (Buck and Hamilton, 2011, p. 57). That is not necessarily the case, however. True,
    absent an explicit provision to that effect, the Protocol can hardly be interpreted as having a retroactive
    effect in the sense that there shall be benefit-sharing also with regard to past use. However, it is a
    different matter if the traditional knowledge associated with genetic resources has been accessed prior
    to the Nagoya Protocol but its utilization continues after the Protocol has entered into force. Nothing in
    the wording of Article 5(5) suggests that the provision should not apply in such instances.”

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