The Legal and Political Economy of ABS: ABS and
Non-Parties to the Nagoya Protocol
About the Centre for International
Sustainable Development Law (CISDL)
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The CISDL is an independent legal research centre that collaborates with
the McGill University Faculty of Law and Cambridge University, and also
works with a network of developing countries’ faculties of law
The Centre’s mission is to promote sustainable societies and the protection
of ecosystems by advancing the understanding, development and
implementation of international sustainable development law.
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Contacts:
– Ms. Marie-Claire Cordonier Segger, Senior Director mcsegger@cisdl.org
– Prof. Jorge Cabrera Medaglia, Lead Counsel,
Biodiversity & Biosafety Law - jcabrera@cisdl.org
– Mr. Frederic Perron-Welch, Programme Coordinator,
Biodiversity & Biosafety Law - fperron@cisdl.org
A Brief History of Access and BenefitSharing under the CBD
CBD
COP-4
COP-5
COP-6
WSSD
Fair and
equitable BS
established
as the third
objective,
access to GR
is based on
Art 15.
Decision IV/8
on ABS
establishes an
expert panel
to develop
common
understanding
of basic
concepts and
to explore all
options for
ABS.
Decision
V/26
reconvenes
expert
panel and
establishes
a WG on
ABS to
consider
terms for
PIC/MAT,
etc.
Decision
VI/24 adopts
Bonn
Guidelines,
extends
mandate of
WG on ABS
to work on
use of
terms,
definitions
etc.
Para 44(o)
calls for the
negotiation
of an
international
regime on
ABS.
1993
1998
2000
2002
COP-7
COP-8
COP-9
Affirmed Bonn
Guidelines and
focused WG to
look at Art.8(j)
and Art.15
intersections.
Established
meeting
schedule for
WG to
complete its
work “as early
as possible”.
Set further WG
Parties
meetings and
adopt the
called on Parties Nagoya
to implement Arts. Protocol on
8(j) and 15 by the ABS in
next meeting.
Decision
X/1 .
COP-10
COP-12/
COP-MOP 1
Nagoya
Protocol on
ABS enters
into force 12
October 2014.
Ongoing Negotiations in WG ABS
2004
2006
2008
2010
2014
Ad-hoc Working Group on ABS (WG ABS)
2002
The WG on ABS had 9 meetings (2002-2010) to develop guidelines on ABS
protection, draft terms relating to key terms (PIC, MAT, Definitions etc…)
and spearheaded the ongoing elaboration and negotiation of the
international regime on ABS.
CBD Strategic Plan 2011-2020
Aichi Target 16 - By 2015, the Nagoya Protocol
on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits Arising from their
Utilization is in force and operational, consistent
with national legislation
Target Summary
Target 16 aims to implement the third objective of the CBD on equitable sharing of
benefits arising from the utilization of genetic resources by ratifying or acceding to the
Protocol in sufficient numbers for it to enter into force by 2015 and be operational.
• The Target requires countries to undertake the necessary domestic legal and political process to
adhere to the international treaty, and to assess and modify existing rules or develop new
legislation, regulations or administrative measures to ensure effective implementation of
Protocol obligations.
• Operationalization of the Nagoya Protocol will require meeting new obligations while taking into
account existing national legislation on subjects as varied as contract law, indigenous rights,
property law, intellectual property rights, confidentiality, access to justice etc.
ABS in Context
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The basic obligations relating to access to
genetic resources and benefit sharing
resulting from their use flow from the CBD,
which has 194 Parties.
The Nagoya Protocol will soon provide an
additional level of regulation for those CBD
Parties that are also Parties to the Protocol
(53) when it enters into force 12 October
2014.
Despite near universal membership, the CBD
lacks one of the biggest players in the field of
biotechnology: the USA.
As a result, there are three categories of
States: Parties to the NP & CBD, Parties only
to the CBD, and non-Parties to both
agreements
ABS in Context
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The three categories of Parties creates legal
and economic implications for most Parties to
the CBD: i.e. States that are Parties to the CBD
but not Parties to the Protocol.
These countries are bound by the ABS
obligations found in Articles 8(j) and 15, but
may have close ties to States that are in other
categories (Parties to the Nagoya Protocol, or
the United States of America).
As a consequence, issues of political economy
occupy the minds of national decision-makers
when considering the ratification of the
Nagoya Protocol.
Case Study: Canada
General Information
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Federal parliamentary democracy with ten
provinces and three territories.
Constitutional division of powers between
Federal and Provincial Governments.
Party to the CBD, Non-Party & NonSignatory to the Nagoya Protocol.
Diverse aboriginal population with
differing treaty rights depending on time
of contact.
Consultations on ABS Policies have been
carried out for ten years with no clear
result.
Case Study: Canada
Biogeography
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At 9.98 million sq./km, Canada is the
world's second-largest country by total
area, with 15 terrestrial ecozones, which
can be subdivided into 53 ecoprovinces
and 194 ecoregions, and 5 marine
ecozones.
The ecozones range from temperate
rainforests in the West to Arctic Cordillera
in the North and include arctic, plains,
boreal forest, taiga, wetlands, mountains
and deciduous forests.
Case Study: Canada
Economy
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11th largest economy in the world with a
GDP of over $1.8 trillion
8th on Human Development Index
Per-capita income of ~$52,000/yr
Member of OECD, G8, G20, WTO, APEC
Commonwealth
One of the world’s top 10 trading
nations with a highly globalized
economy
Ranked 4th in the world for scientific
research in 2012
Bio-based economy has grown to over
6% of GDP and 1,000,000 jobs
Case Study: Canada
Free Trade Agreements
Case Study: Canada
Draft Policy Guidance
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Identifies the objectives, guiding
principles, scope and common elements
that Canada’s federal, provincial and
territorial governments agree should
guide the development and
implementation of measures to manage
genetic resources within their
jurisdictions.
Non-binding and only approved in draft
form. No updates since it was released.
Case Study: Canada
Objectives
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Promote the conservation and sustainable
use of Canada’s biodiversity
Improve Canada’s competitiveness in the biobased economy
Support ethical scientific research and
development
Foster regional and Aboriginal development
Support Canada’s foreign policy objectives
Contribute to the improvement of the health
of Canadians
Case Study: Canada
Principles
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Environment-focused – contributing to
the conservation and sustainable use of
biodiversity
Practical and economically supportive –
generating and sharing economic
benefits of the utilization of genetic
resources among both providers and
users as a means of contributing to
sustainable development
Simple, efficient and adaptable – taking
into account different sectors and
allowing for different approaches in
different jurisdictions
Case Study: Canada
Principles
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Supportive of current governmental
policies – and building on and respecting
Canada’s existing international
commitments
Balanced, equitable and transparent –
balancing responsibilities between users
and providers of genetic resources in a
manner that is clear and whose rationale
makes sense
Inclusive – developed and implemented
with the appropriate involvement of
Aboriginal groups and communities
Case Study: Canada
Implementing ABS Policy in Canada
Canada’s federal, provincial and territorial
governments agreed to:
1. Encourage the application of existing
mechanisms, such as contracts and permits, to
the fullest extent possible, supplemented by
regulatory and non-regulatory measures.
2. Promote consistency through, for example, the
use of consistent public information.
3. Collaborate in the development, application
and monitoring of implementation tools and in
the development of cooperative approaches to
ABS policy in Canada.
4. Share their experiences regarding access and
benefit sharing with other jurisdictions.
Conclusions
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The Nagoya Protocol will enter into force on 12 October 2014 with 54 of 194 CBD Parties as
members, leaving 140 Parties to the CBD that are non-Parties to the Nagoya Protocol.
This creates a situation where CBD Parties must attempt to implement Article 15 while taking
into consideration non-Parties to the CBD, and Parties to the Nagoya Protocol.
International political economy will play a large role in determining whether the Nagoya
Protocol becomes universal or effectively creates a cartel for genetic resources among its
Parties (i.e. by blacklisting researchers and companies from non-Parties due to concerns over
compliance).
Industrialized countries like Canada will likely remain outside the ambit of the Nagoya
Protocol until the international situation strongly influences the Government’s cost/benefit
analysis.
In Canada, the economic harm caused by ratifying the Nagoya Protocol would likely exceed
the economic benefits due to economic integration with the United States.
For the Canadian Government, this material calculation outweighs any moral or ethical
considerations linked to benefit-sharing on GR and TK.
Question for the Audience
How do we alter the international political/economic calculations that undermine
the functionality of ABS to increase the number of Parties to the Nagoya Protocol?
Thank You
Mr. Frederic Perron-Welch, M.A. LL.B.
Legal Research Fellow and Programme Coordinator, Biodiversity & Biosafety Law
Centre for International Sustainable Development Law
3644 Peel St, Montreal, Quebec, Canada H3A 1W9
www.cisdl.org / fperron@cisdl.org