A new report by two civil society groups explores what they say are discrepancies between European Union and provider country laws implementing the Nagoya Protocol on genetic resources, which they say could lead to legal uncertainties for users and providers.
The report [pdf] is titled, “The two worlds of Nagoya ABS legislation in the EU and provider countries: discrepancies and how to deal with them,” and examines the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation, which entered into effect in October 2014.
It finds Nagoya “contains several ‘intentional ambiguities’ which provided parties with a fair amount of discretion regarding the manner in which they domestically implement their obligations under the protocol and under the Convention on Biological Diversity [CBD].”
The report, published by Public Eye (former Bern Declaration) and Natural Justice, focuses on the “temporal scope,” the associated traditional knowledge, and the “import loophole,” in the text of the 2010 treaty. It was presented at a side event during the 13th Conference of the Parties of the CBD in Cancun, Mexico on 14 December.
Temporal scope refers to the moment when benefit-sharing obligations are triggered. For the EU legislation, the report says, those obligations are triggered by physical access to a genetic resource or associated traditional knowledge in the country of origin, after the Nagoya Protocol has been ratified by both the EU and the country of origin.
However, most provider countries consider in their laws that benefit sharing should be triggered by the utilisation of genetic resources and associated traditional knowledge, including any new utilisation after the entry into force of the protocol or the national ABS law of the provider country, even if the physical access took place before, it said.
The import loophole refers to what the two civil society organisations consider as “a significant gap” in the EU regulation, which requires due diligence only from users of genetic resources (GR) and associated traditional knowledge (TK) within the EU, and not from parties selling or otherwise commercially profiting from products based on GR and associated TK which were developed outside of the EU and then imported.
The study provides some suggestions to help with these discrepancies, such as encouraging provider countries to “put in place legislative, administrative or policy measures to encourage compliance, and to penalise, or where possible prosecute, violators where necessary.”
The authors also said provider country governments should put in place measures to protect and regulate access to TK.
Image Credits: – Flickr – Neglected and Underutilized Species