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 is now in force in The Philippines after the Country’s accession to the Protocol in late 2015.
The Nagoya Protocol is a supplementary agreement to the Convention on Biological Diversity (CBD). It provides a transparent legal framework for the effective implementation of one of the three objectives of the CBD: the fair and equitable sharing of benefits arising out of the utilization of genetic resources. The Protocol came into force in The Philippines on 28 December 2015.
The Protocol provides greater legal certainty and transparency to both providers and users of genetic resources; specific obligations to support compliance with domestic legislation or regulatory requirements of the party providing genetic resources; and strengthens the ability of the indigenous and local communities to benefit from the use of their knowledge, innovations and practices.
The Philippines is one of 18 mega-biodiverse countries of the world. It contains two-thirds of the earth’s biodiversity, between 70% and 80% of the world’s plant and animal species and maintains 5% of the world’s flora. The accession has been pushed by the Department of Environment and Natural Resources to address the issue of biopiracy - the commercial exploitation of biological or genetic material without compensating indigenous people or communities from which the material or knowledge was obtained.
The Nagoya Protocol lists the following core obligations for its contracting members to take measures in relation to access to genetic resources, benefit sharing and compliance:
- Create legal certainty, clarity and transparency.
- Provide fair and non-arbitrary rules and procedures.
- Establish clear rules and procedures for prior informed consent and mutually agreed terms.
- Provide for issuance of a permit or equivalent when access is granted.
- Create conditions to promote and encourage research contributing to biodiversity conservation and sustainable use.
- Pay due regard to cases of present or imminent emergencies that threaten human, animal or plant health.
- Consider the importance of genetic resources for food and agriculture for food security.
The Protocol also outlines specific obligations to support compliance with the domestic legislation or regulatory requirements of a contracting member providing genetic resources, and contractual obligations reflected in mutually agreed terms. In this regard contracting members are to:
- Take measures to ensure that genetic resources utilized within their jurisdiction have been accessed in accordance with prior informed consent, and that mutually agreed terms have been established, as required by another contracting party.
- Cooperate in cases of alleged violation of another contracting party’s requirements.
- Encourage contractual provisions on dispute resolution in mutually agreed terms.
- Ensure an opportunity is available to seek recourse under their legal systems when disputes arise from mutually agreed terms.
- Take measures regarding access to justice.
- Take measures to monitor the utilization of genetic resources after they leave a country including by designating effective checkpoints at any stage of the value-chain: research, development, innovation, pre-commercialization or commercialization.