TWN Info Service on Biodiversity and Traditional Knowledge (Dec22/02)
16 December 2022
Third World Network

North proposals allow non-Parties to interpret Nagoya Protocol, circumvent DSI solution

Montreal, 16 December (Nithin Ramakrishnan) – The European Union (EU) and several other countries like Japan, Republic of Korea, Switzerland, the United Kingdom and Norway have moved proposals which would allow non-Parties to the Nagoya Protocol to interpret its provisions.

This would allow not only non-Parties to frustrate the Nagoya principles on access and benefit sharing, but also enable them to circumvent any solution on digital sequence information on genetic resources (DSI) that may emerge during the fifteenth Conference of Parties to the Convention on Biological Diversity (COP15). The proposals are being made to alter a draft decision under consideration in Agenda Item 15 at the fourth Meeting of the Parties to the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (COPMOP4), currently meeting in Montreal.

[Agenda Item 15 discusses the indicative criteria that qualify access and benefit sharing agreements to be identified as a “specialised international access and benefit sharing instrument” (SII) under Article 4.4 of the Nagoya Protocol.]

The indicative criteria have raised eyebrows of developing countries as they were quite weak. During the resumed third meeting of the Subsidiary Body on Implementation in March 2022, which sent this draft decision to COPMOP4, the African Group had proposed some text to strengthen the criteria and to create a mechanism within the COPMOP so that international instruments can be determined as a specialised instrument within the meaning of Article 4.4.

The abovementioned developed countries have all however sought to remove the safeguards which the African Group has placed. The net effect of these proposals by the developed countries is that any State can endorse international documents on access and benefit sharing, including non-governmental instruments, as specialised instruments, even if not consistent with the Nagoya Protocol, and without the support of other countries. It does not matter whether these states are Parties to the Nagoya Protocol or not.

The proposals and their implications

Firstly, the proposals attempt to delete bracketed paragraphs 5 and 6 in the draft decision on the agenda item, which read as follows:

[5.       Decides that the meeting of the Parties to the Nagoya Protocol shall act as the authority to assess, determine, review or terminate the status of instruments as specialized international access and benefit-sharing instruments in the context of Article 4, paragraph 4, of the Nagoya Protocol based on the criteria provided in the annex to the present draft decision and that the Parties to Nagoya Protocol can approach the meeting of the Parties for determination or termination of the status of instruments;]

[6.       Requests the Executive Secretary to receive and submit instruments from Parties to the Nagoya Protocol for such consideration by the meeting of the Parties as mentioned in paragraph 5, four months before the meeting of the Parties, starting from the fifth meeting]; …

Secondly, the proposals also seek to modify indicative criteria which state that the instruments must either be agreed through an intergovernmental process or be endorsed by States through the governing bodies of any other international organisations (Paragraph 2 in the Annex of the draft decision). The developed countries want the second clause of this criteria to be open as “endorsed by States” without the condition that such endorsement should happen through a governing body of an international organisation.

While this may appear to be not too harmful in plain reading, it will actually create havoc by disintegrating the entire Nagoya regime on access and benefit sharing. This is because the indicative criteria in Paragraph 2 of the Annex treat the phrases “intergovernmentally agreed” and “internationally agreed” with distinct meanings. This means an “internationally agreed” instrument need not necessarily be an intergovernmental agreement. It could either be a private agreement between two entities across borders or a multi-stakeholder engagement that includes certain governments. States just have to endorse it. More interestingly, the proposals by these developed countries are highly supportive of the clause which says the instruments can be either binding or non-binding.

Going by the proposal of developed countries, even States that are not Parties could endorse instruments like these as specialised instruments. The discussion is not without context. The United States, a non-Party to the Convention on Biological Diversity and its Protocols, wants the access and benefit sharing agreement that may be developed in the context of a new international accord on pandemics in the WHO, to be declared as a specialised international instrument.

Similarly, pharmaceutical companies have a long standing interest in trying to recognize the global influenza surveillance and response systems (GISRS), which is a network of laboratories, as a specialised instrument, as opposed to the Pandemic Influenza Preparedness Framework, an instrument adopted by WHO Member States through an intergovernmental process.

It is thus clear that the proposals would help several stakeholders who are waiting for an opportunity to get the instruments of their interests to be declared as a specialised instrument, so that they dilute their legal obligations under the Nagoya Protocol to fairly and equitably share benefits arising from the use of genetic resources.

Attempt to frustrate Nagoya principles and DSI solution

It must be further noted that the EU and other developed countries want legal certainty only for access to genetic resources, while benefit sharing and other rules like prior informed consent (PIC) or mutually agreed terms (MAT) could be limited “as appropriate”. This is a very tricky proposition because it is the checks and balances placed by PIC and MAT for access, that provide the legal certainty and predictability of the benefit sharing. Without these checks and balances, a promise of benefit sharing becomes very shallow and weak.

Therefore, the proposals will not only frustrate the Nagoya principles and obligations, but also cast a shadow on the DSI solution currently being negotiated at COP15. The non-paper version 3 relating to the DSI solution already speaks about the freedom of developing specialised instruments without any reference to consistency with the objectives of the Convention and Protocol. This means loose indicative criteria, without any kind of control over the determination of the status of a specialised instrument, would allow non-Parties like the United States to declare agreements or instruments as specialised instruments and circumvent not only the Nagoya principles but also the DSI solution.

The argument on hierarchy

Developed countries are pointing to the second sentence in Article 4.1 of the Nagoya Protocol, which states “This paragraph is not intended to create a hierarchy between this Protocol and other international instruments”, in order to oppose the proposal for a mechanism within the COPMOP to determine the status of agreements as specialised instruments. It must be noted that the implication of this sentence is limited to Article 4.1 and is not applicable to Article 4.2 or Article 4.4, where the specialised instruments are discussed.

It must be noted that under Article 4.4, the instrument has to be of the same status as the Protocol in order to be considered as a specialised international instrument. This is because the word “instrument” is used to refer to the Protocol in the first sentence of Article 4.4. This means the instruments should be adopted by the governing body of an international organization, by States, and they should be binding in order to be eligible for specialized status. This is however overturned in the proposals by the developed countries. In other words, the proposals of developed countries cannot be accepted without amending the Nagoya Protocol.

It must also be noted that a process within COPMOP for determining the specialised status of international instruments is not creating a hierarchy between the Nagoya Protocol and such instruments. It is simply allowing the Parties to the Nagoya Protocol to decide which instruments they consider as specialized within the context of Article 4.4.  Article 4.2 of the Nagoya Protocol however enables Parties to develop other instruments and to implement them without being recognized as a specialized instrument. A process within COPMOP is certainly not going to create a hindrance to the said rule in the context of Article 4.2.

Article 4.2. reads: “Nothing in this Protocol shall prevent the Parties from developing and implementing other relevant international agreements, including other specialized access and benefit-sharing agreements, provided that they are supportive of and do not run counter to the objectives of the Convention and this Protocol”.

The only condition it stipulates is that the international agreement should be supportive of and not run counter to the objectives of the Convention and the Protocol.

These issues have been discussed in a Friends of the Chair group, but due to divergences between developed and developing countries, the Friends dispersed with no agreement. +