The Nagoya Protocol comes a step closer to fruition
Botanic Gardens like Kew need to access new plant material from around the world to ensure their research and plant collections are up to date and relevant. Developments in international and national legislation, particularly since the Convention on Biological Diversity (CBD) was agreed in Rio in 1992, have created a new, more equitable framework for plant collecting and the way plants are used.
This area is continually developing and last week saw the third meeting of the ad hoc Intergovernmental Committee of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (ICNP3). The meeting was held in a ski resort in Pyeongchang, South Korea (the venue for the 2018 winter Olympics) and was attended by government representatives and other stakeholders from 192 countries. I formed part of the UK delegation, representing Kew in discussions on policies and procedures for plant collecting, use and supply.
The idea for a legally binding regime governing access and benefit sharing (ABS) has been building momentum since 2002. Biodiverse, often developing, countries argued that a lack of any international compliance regime meant they had no legal recourse, and no way of ensuring they receive a fair share of benefits, when their genetic resources are exploited by others. They argued that they bore an unfair burden to introduce legislation to control access and use, and that user country measures to enforce compliance were slim in comparison. Similarly, users of genetic resources, from both the commercial and non-commercial sectors, highlighted the urgent need for transparency in access legislation so that biodiversity research could continue.
Thus, eight years of negotiations began and the text of the Nagoya Protocol was finally agreed by all CBD Parties at its tenth meeting (COP10), in Nagoya, Japan in 2010. The Protocol requires 50 ratifications by early July 2014 if it is to come into force in time to hold its first meeting, MOP1, back in Korea this October. Currently the number stands at 29 but with many (including the EU) working hard to ratify, this target is still likely to be achieved.
Policy expertise at Kew
With a background in international environmental law, I have worked for more than 12 years in Kew’s Conventions and Policy Section, advising staff on accessing genetic resources legally and developing a Policy on Access and Benefit Sharing, in addition to procedures, model agreements, letters and clauses for staff and partners to use. The Section also works with Kew’s international partners, sharing experiences and expertise through training modules in the UK and abroad.
Kew exchanges over 60,000 herbarium specimens, 10,000 seed collections and 10,000 living plants every year, primarily with botanical institutions around the world. Scientists from Kew conduct around 70 overseas collecting trips each year and Kew currently has over 60 long-term agreements with partner countries setting out how Kew will access and use genetic resources according to national law, and what benefits Kew mutually agrees to share. Kew scientists are carrying out the practical work – baseline taxonomy and naming - to ensure that the objectives of the CBD are met.
It was for this reason that I was asked by the Secretariat of the CBD to give a talk and take part in a plenary panel discussion on an ‘exchange of views on model contractual clauses, codes of conduct, guidelines, best practices and standards’. Given the huge interest in this subject it was a unique opportunity to explain how Kew has developed a toolkit of ABS measures through working closely with its partners to develop carefully negotiated and appropriate agreements and best practices. Many Parties requested more information and examples. The next stage of implementation is really a ‘learning by doing’ approach where Kew’s practical and field experience is seen as invaluable.
Implementation of the Nagoya Protocol
The work of Kew and others in the scientific research community, especially on national delegations, is vital to ensure that the implementation of the Protocol recognises the importance of scientific work in achieving the conservation objectives of the Convention. It is largely due to pressure from this sector that the Protocol directs Parties to: ‘create conditions to promote and encourage research which contributes to the conservation and sustainable use of biological diversity, through simplified measures on access for non-commercial research purposes.’ (Nagoya Protocol, Article 8a). Both India and Ethiopia have put this into practice in their National Access legislation and it is crucial to look at what other megadiverse countries will be doing.
At ICNP3 some countries announced that they are considering denying access to non-Parties and countries that do not have effective user compliance measures. Several countries indicated that the adoption of an approved code of conduct will be required for an institution to receive loans or carry out research. Closer to home, the EU Regulations to implement the Protocol are at the final stages of being approved by the European Parliament. These Regulations focus on user compliance measures, with penalties for non-compliance regulated at the national level. They set a ‘due diligence’ requirement for users. Kew has been working with the UK government and at an EU level to ensure that the Regulations are workable. The UK Government is about to launch a public consultation on the UK’s implementation of the Protocol.
While it is difficult to predict what the implications of the Protocol will be, it seems clear that user countries (including the EU) will need to work on implementing measures to monitor use of genetic resources within their jurisdiction, and to ensure compliance with the national laws and regulations of countries of origin of genetic resources. New access procedures are likely to be introduced: more formal agreements (access and transfer) will probably be used in national access procedures and across all sectors.
Kew, in common with the scientific research community, is likely to see an increase in the need to track, monitor and document material used for research from acquisition and use through to supplying material to third parties, and be clear as to the benefits shared as a result. Kew needs to continue to work closely with governments and Kew partners to ensure decisions are made that can be implemented on the ground. The next phase is truly make or break – a trust-building exercise where countries and stakeholder commitment will be harshly tested.
I left the meeting in Pyeongchang feeling that Kew has a crucial opportunity to influence developments, and that it is vital that we share our experiences of working in this changing legal framework, and only regretting that I hadn’t had a chance to ski.
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Ahrén, M., Ali, N., Cabrera Medaglia, J. A., Greiber, T., Kamau, E. C., Nieto Carrasco, J., Oliva, M. J., Pena Moreno, S., Perron-Welch, F. & Williams, C. (2012). An explanatory guide to the Nagoya Protocol on access and benefit-sharing. IUCN Environmental Policy and Law Paper no. 083. Available online