Tuesday, 8 February 2011

A, B, C – Y: On Biodiversity Access and Benefit-Sharing

It has been reported by the IP watch, that four developing countries have already signed a recent international agreement -- The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits. The agreement was adopted on October 2010, and seeks to facilitate access to genetic resources.

Algeria, Brazil, Colombia, and Yemen appear to be keen to sign the protocol (open for signature until 1 February 2012) and having a quick look at it, it appears too mellow. The protocol is full of words such as ‘recognizing, acknowledging, and reaffirming’. However, the text has been considered by some as not quite there (can we say ‘immature’?). The critiques focus on the fact that the text is open to interpretation and ‘much left to national level implementation.’ This view can be observed in some of the Articles which state for example: ‘in accordance with domestic law’; ‘subject to domestic law’; ‘ as appropriate’; to name a few.

However, the protocol needs to be ratified by at least 50 parties and would enter into force 90 days after the fiftieth ratification. I guess we can start counting now – there are less than 360 days to see if the protocol will be (or not) ratified.

What is the fuss about?
The protocol is very much ‘what it says on the tin’ -- fair and equitable share. That said, it is for every party to interpret according to their domestic legislation and procedures. In general, the text is bringing into attention the following: when you have the ingredients to make a cake and do not know how to make one, along comes someone uses the ingredients and leave with the whole cake! This is pretty much what the Protocol is establishing, you cannot leave with the whole cake, and you need to recognise and acknowledge the party that gave you the ingredients.

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