Unraveling the Nagoya Protocol
Free

Unraveling the Nagoya Protocol

By Elisa Morgera
Free
Book Description

The Nagoya Protocol is an unprecedented international environmental agreement that equally addresses development, distributive justice, and environmental sustainability. With a balanced view of the various possible interpretations of the Protocol provisions, in light of different national and regional perspectives, and a systematic highlighting of its legal innovations, Unraveling the Nagoya Protocol: A Commentary on the Nagoya Protocol on Access and Benefit-sharing to the Convention on Biological Diversity will serve as a seminal work for all those interested in the environment, human rights, economics and both legal and scientific innovations.

Table of Contents
  • Contents
  • Foreword
  • Acknowledgements
  • List of Abbreviations
  • Table of Legal Materials Cited
  • Introduction
    • 1 The International Debate on Access and Benefit-sharing
      • 1.1 Asymmetries and the Ethical Rationale for ABS
      • 1.2 An Incentive-based Approach to Biodiversity Conservation and the Economic Rationale for ABS
      • 1.3 The ABS Provisions of the CBD
    • 2 From the CBD to the Nagoya Protocol via the Bonn Guidelines
    • 3 Traditional Knowledge and ABS
    • 4 Indigenous Peoples and Local Communities as Beneficiaries of the CBD and the Nagoya Protocol
      • 4.1 Internationally Recognized Human Rights of Indigenous Peoples
      • 4.2 Internationally Recognized Rights of Local Communities
      • 4.3 Human Rights-related Risks and Opportunities, Limitations and Innovations under the Protocol
    • 5 About This Commentary
  • Article 1. Objective
    • 1 Overview
    • 2 Objective and Means
    • 3 Traditional Knowledge
    • 4 Links with Conservation and Sustainable Use
    • 5 Legal and Practical Functions
  • Article 2. Use of Terms
    • 1 Overview
    • 2 Utilization of Genetic Resources
      • 2.1 The Intent
      • 2.2 The Material
        • 2.2.1 Derivatives
        • 2.2.2 Commodities in Trade
    • 3 Utilization of Traditional Knowl
  • Article 3. Scope
    • 1 Overview
    • 2 Subject-matter Scope
      • 2.1 Human Genetic Resources
    • 3 Outstanding Questions
      • 3.1 Temporal Scope
      • 3.2 Spatial Scope
  • Article 4. Relationship with International Agreements and Instruments
    • 1 Overview
    • 2 Relationship with Existing Agreements
    • 3 Relationships with Future Agreements
      • 3.1 WIPO Negotiations
    • 4 Relationship with Specialized ABS Instruments
      • 4.1 Genetic Resources Covered by the ITPGRFA
      • 4.2 Genetic Resources with Pathogenic Properties
      • 4.3 Marine Genetic Resources in Areas Beyond National Jurisdiction
      • 4.4 CGRFA
  • Article 5. Fair and Equitable Benefit-sharing
    • 1 Overview
    • 2 Inter-State Benefit-sharing from the Utilization of Genetic Resources
    • 3 Intra-State Benefit-sharing from the Utilization of Genetic Resources Held by Indigenous and Local Communities
      • 3.1 States’ Obligation
      • 3.2 ‘Established Rights’ and Other Qualifications
    • 4 Benefit-sharing from the Utilization of Traditional Knowledge
    • 5 The Role of Mutually Agreed Terms
    • 6 Monetary and Non-monetary Benefits
  • Article 6. Access to Genetic Resources
    • 1 Overview
    • 2 Background
    • 3 Access to Genetic Resources: The Inter-State Dimension
      • 3.1 National Sovereignty over Genetic Resources and Domestic Measures on Access
      • 3.2 The Concept of State PIC
    • 4 Access to Genetic Resources Held by Indigenous and Local Communities
      • 4.1 Parties’ Obligation
      • 4.2 The Concept of Community PIC Concerning Genetic Resources
        • 4.2.1 Approval and Involvement
        • 4.2.2 Community PIC and Private-sector Users
    • 5 Access Standards
      • 5.1 Legal Certainty, Clarity and Transparency
      • 5.2 Fair and Non-arbitrary Access Rules and Procedures
    • 6 Minimum Procedural Requirements for PIC
    • 7 Minimum Requirements for MAT
  • Article 7. Access to Traditional Knowledge Associated with Genetic Resources
    • 1 Overview
    • 2 Community PIC in Relation to Traditional Knowledge
    • 3 Qualifications
  • Article 8. Special Considerations
    • 1 Overview
    • 2 Research Contributing to Conservation and Sustainable Use
      • 2.1 Rationale
      • 2.2 The Obligation
    • 3 Genetic Resources and Health-related Emergencies
    • 4 Genetic Resources for Food and Agriculture
  • Article 9. Contribution to Conservation and Sustainable Use
    • 1 Overview
    • 2 Contribution to a Coherent Interpretation of the Three CBD Objectives
    • 3 Means of Implementation
    • 4 Benefits for Indigenous and Local Communities
  • Article 10. Global Multilateral Benefit-sharing Mechanism
    • 1 Overview
    • 2 The Need for a Multilateral Benefit-sharing Mechanism
      • 2.1 Transboundary Situations
      • 2.2 Situations Where it is Not Possible to Grant or Obtain PIC
    • 3 Features of a Global Benefit-sharing Mechanism
    • 4 Promoting a Coherent Interpretation of the Three CBD Objectives
  • Article 11. Transboundary Cooperation
    • 1 Overview
    • 2 Obligation to Cooperate
    • 3 Transboundary Cooperation Concerning Genetic Resources
    • 4 Transboundary Cooperation Concerning Traditional Knowledge
  • Article 12. Traditional Knowledge Associated with Genetic Resources
    • 1 Overview
    • 2 General Clause
      • 2.1 Community Protocols
    • 3 Obligation to Inform Potential Users
    • 4 Obligation to Support
    • 5 Prohibition to Restrict Customary Use and Exchange
  • Article 13. National Focal Points and Competent National Authorities
    • 1 Overview
    • 2 National Focal Points
    • 3 Competent National Authorities
  • Article 14. The Access and Benefit-sharing Clearing-House and Information Sharing
    • 1 Overview
    • 2 Link with the CBD Clearinghouse Mechanism
    • 3 The Functions of the ABS Clearinghouse
    • 4 Types of Information
    • 5 Outstanding Legal Issues
  • Article 15. Compliance with Domestic Legislation or Regulatory Requirements on Access and Benefit-sharing
    • 1 Overview
    • 2 ‘Compliance’ under Articles 15 and 16: Context and Responses to Conceptual Challenges
    • 3 Obligation to Adopt Domestic User-side Measures
      • 3.1 The Obligation to ‘Provide’
      • 3.2 Means of Implementation
    • 4 Obligation to Enforce
    • 5 Obligation to Cooperate
  • Article 16. Compliance with Domestic Legislation or Regulatory Requirements on Access and Benefit-sharing for Traditional Knowledge Associated with Genetic Resources
    • 1 Overview
    • 2 Similarities and Differences vis-à-vis Article 15
    • 3 Lack of Parallel Provisions on Compliance Concerning ABS Related to Genetic Resources and ABS Related to Traditional Knowledge
  • Article 17. Monitoring the Utilization of Genetic Resources
    • 1 Overview
    • 2 Checkpoints
      • 2.1 Characteristics and Functions
    • 3 The Internationally Recognized Certificate of Compliance
  • Article 18. Compliance with Mutually Agreed Terms
    • 1 Overview
    • 2 Dispute Resolution Provisions in MAT
    • 3 Opportunity to Seek Recourse
    • 4 Access to Justice and Recognition of Foreign Judgments
    • 5 Jurisdiction and Access to Justice in Cases of Violation of Provider Country ABS Frameworks
  • Article 19. Model Contractual Clauses
    • 1 Overview
    • 2 Obligation for Parties
    • 3 Mandate for the Protocol’s Governing Body
  • Article 20. Codes of Conduct, Guidelines and Best Practices and/or Standards
    • 1 Overview
    • 2 Obligation for Parties
    • 3 Mandate for the Protocol’s Governing Body
  • Article 21. Awareness-Raising
    • 1 Overview
    • 2 Specific Relevance for Indigenous and Local Communities
    • 3 Linkages with Other Provisions
  • Article 22. Capacity
    • 1 Overview
    • 2 The Obligation to Cooperate
    • 3 Country-Driven Capacity-Building
    • 4 The Capacity of Indigenous and Local Communities and Other ABS Stakeholders
    • 5 ABS-Related Development Cooperation
  • Article 23. Technology Transfer, Collaboration and Cooperation
    • 1 Overview
    • 2 Technology Collaboration and Cooperation
    • 3 Technology Transfer
  • Article 24. Non-Parties
  • Article 25. Financial Mechanism and Resources
    • 1 Overview
    • 2 Financial Mechanism
    • 3 Other Bilateral, Regional and Multilateral Channels for Financial Resources
  • Article 26. Conference of the Parties Serving as the Meeting of the Parties to this Protocol
    • 1 Overview
    • 2 The Functioning of the COP/MOP
    • 3 Relationship with the CBD C
  • Article 27. Subsidiary Bodies
  • Article 28. Secretariat
  • Article 29. Monitoring and Reporting
    • 1 Overview
    • 2 Functions and Links
  • Article 30. Procedures and Mechanisms to Promote Compliance with this Protocol
    • 1 Overview
    • 2 Common Features
    • 3 Distinctive Features
      • 3.1 Compliance in Bilateral Relations between Provider and User Countries
      • 3.2 Compliance vis-à-vis Indigenous and Local Communities
      • 3.3 Compliance in State-Private Parties Relations
    • 4 Links with Other Protocol Provisions
    • 5 Dispute Settlement
  • Article 31. Assessment and Review
    • 1 Overview
    • 2 Functions and Links
  • Final Clauses
    • 1 Overview
    • 2 Signature and Entry into Force
    • 3 Reservations
    • 4 Withdrawals
    • 5 Official Languages
  • Conclusions
    • 1 Sustainable Development
    • 2 Equity
    • 3 Due Diligence
    • 4 Environmental Rights
    • 5 Final Words of Caution
  • Appendix: Text of the Preamble of the Nagoya Protocol
  • Bibliography
  • Index
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