Unraveling the Nagoya Protocol: A Commentary on the Nagoya Protocol on Access and Benefit-sharing to the Convention on Biological Diversity(2 Legal Studies on Access and Benefit-sharing)

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:
PREFACE by Prof. Francesco Francioni ACKNOWLEDGEMENTS LIST OF ABBREVIATIONS TABLE OF CITED LEGAL MATERIALS INTRODUCTION I. The International Debate on Access and Benefit-sharing 1. Asymmetries and the Ethical Rationale for ABS 2. An Incentive-based Approach to Biodiversity Conservation and the Economic Rationale for ABS 3. The ABS Provisions of the CBD II. From the CBD to the Nagoya Protocol via the Bonn Guidelines III. Traditional Knowledge and ABS IV. Indigenous Peoples and Local Communities as Beneficiaries of the CBD and the Nagoya Protocol 1. Internationally Recognized Human Rights of Indigenous Peoples 2. Internationally Recognized Rights of Local Communities 3. Human Rights-related Risks and Opportunities, Limitations and Innovations under the Protocol V. About This Commentary ARTICLE 1 I. Overview II. Objective and Means III. Traditional Knowledge IV. Links with Conservation and Sustainable Use V. Legal and Practical Functions ARTICLE 2 I. Overview II. Utilization of Genetic Resources 1. The Intent 2. The Material a. Derivatives b. Commodities in trade III. Utilization of Traditional Knowledge ARTICLE 3 I. Overview II. Subject-matter Scope 1. Human Genetic Resources III. Outstanding Questions 1. Temporal Scope 2. Spatial Scope ARTICLE 4 I. Overview II. Relationship with Existing Agreements 1. Examples of Existing Agreements III. Relationships with Future Agreements 1. WIPO Negotiations III. Relationship with Specialized ABS Instruments 1. Genetic Resources covered by the ITPGRFA 2. Genetic Resources with Pathogenic Properties 3. Marine Genetic Resources in Areas beyond National Jurisdiction 4. CGRFA ARTICLE 5 I. Overview II. Inter-State Benefit-sharing from the Utilization of Genetic Resources 1. Means of Implementation III. Intra-State Benefit-sharing from the Utilization of Genetic Resources Held by Indigenous and Local Communities 1. States’ Obligation 2. ‘Established Rights’ and Other Qualifications IV. Benefit-sharing from Traditional Knowledge V. The Role of Mutually Agreed Terms VI. Monetary and Non-monetary Benefits ARTICLE 6 I. Overview II. Background III. Access to Genetic Resources: The Inter-State Dimension 1. National Sovereignty over Genetic Resources and Domestic Measures on Access 2. The Concept of State PIC IV. Access to Genetic Resources Held by Indigenous and Local Communities 1. Parties’ Obligation 2. The Concept of Community PIC concerning Genetic Resources a. Approval and Involvement b. Community PIC and Private-sector Users V. Access Standards 1. Legal Certainty, Clarity and Transparency 2. Fair and Non-arbitrary Access Rules and Procedures VI. Minimum Procedural Requirements for PIC VII. Minimum Requirements for MAT ARTICLE 7 I. Overview II. Community PIC in relation to Traditional Knowledge III. Qualifications ARTICLE 8 I. Overview II. Research Contributing to Conservation and Sustainable Use 1. Rationale 2. The Obligation III. Genetic Resources and Health-related Emergencies IV. Genetic Resources for Food and Agriculture ARTICLE 9 I. Overview II. Contribution to a Coherent Interpretation of the Three CBD objectives III. Means of Implementation IV. Benefits for Indigenous and Local Communities ARTICLE 10 I. Overview II. The Need for a Multilateral Benefit-sharing Mechanism 1. Transboundary Situations 2. Situations Where It Is Not Possible to Grant or Obtain PIC III. Features of a Global Benefit-Sharing Mechanism IV. Promoting a Coherent Interpretation of the Three CBD Objectives ARTICLE 11 I. Overview II. Obligation to Cooperate III. Transboundary Cooperation concerning Genetic Resources IV. Transboundary Cooperation concerning Traditional knowledge ARTICLE 12 I. Overview II. General Clause 1. Community Protocols III. Obligation to Inform Potential Users IV. Obligation to Support V. Prohibition to Restrict Customary Use and Exchange ARTICLE 13 I. Overview II. National Focal Points III. Competent National Authorities ARTICLE 14 I. Overview II. Link with the CBD Clearinghouse Mechanism III. The Functions of the ABS Clearinghouse IV. Types of Information V. Outstanding Legal Issues ARTICLE 15 I. Overview II. ‘Compliance’ under Articles 15 and 16: Context and Responses to Conceptual Challenges III. Obligation to Adopt Domestic User-side Measures 1. The Obligation to ‘Provide’ 2. Means of Implementation IV. Obligation to Enforce V. Obligation to Cooperate ARTICLE 16 I. Overview II. Similarities and Differences vis-à-vis Article 15 III. Lack of Parallel Provisions on Compliance concerning ABS related to Genetic Resources and ABS related to Traditional Knowledge ARTICLE 17 I. Overview II. Checkpoints 1. Characteristics and Functions III. The Internationally Recognized Certificate of Compliance ARTICLE 18 I. Overview II. Dispute Resolution Provisions in MAT III. Opportunity to Seek Recourse IV. Access to Justice and Recognition of Foreign Judgments V. Jurisdiction and Access to Justice in cases of Violation of Provider Country ABS Frameworks ARTICLE 19 I. Overview II. Obligation for Parties III. Mandate for the Protocol’s Governing Body ARTICLE 20 I. Overview II. Obligation for Parties III. Mandate for the Protocol’s Governing Body ARTICLE 21 I. Overview II. Specific Relevance for Indigenous and Local Communities III. Linkages with Other Provisions ARTICLE 22 I. Overview II. The Obligation to Cooperate III. Country-driven Capacity-building IV. The Capacity of Indigenous and Local Communities and Other Stakeholders V. ABS-related Development Cooperation ARTICLE 23 I. Overview II. Technology Collaboration and Cooperation III. Technology Transfer ARTICLE 24 ARTICLE 25 I. Overview II. Financial Mechanism III. Other Bilateral, Regional and Multilateral Channels for Financial Resources ARTICLE 26 I. Overview II. The Functioning of the COP/MOP III. Relationship with the CBD COP ARTICLE 27 ARTICLE 28 ARTICLE 29 I. Overview II. Functions and Links ARTICLE 30 I. Overview II. Common Features III. Distinctive Features 1. Compliance in Bilateral Relations between Provider and User Countries 2. Compliance vis-à-vis Indigenous and Local Communities 3. Compliance in State-Private Parties Relations IV. Links with Other Protocol Provisions V. Dispute Settlement ARTICLE 31 I. Overview II. Functions and Links FINAL CLAUSES I. Overview II. Signature and Entry into Force III. Reservations IV. Withdrawals V. Official Languages CONCLUSIONS I. Sustainable Development II. Equity III. Due Diligence IV. Environmental Rights V. Final Words of Caution APPENDIX: TEXT OF THE PREAMBLE OF THE NAGOYA PROTOCOL BIBLIOGRAPHY

About the Author :
Elisa Morgera (LLM, University College London; PhD, European University Institute) is Senior Lecturer in Global Environmental Law at the University of Edinburgh School of Law. She is the author of Corporate Accountability in International Environmental Law (OUP, 2009) and co-author of Environmental Integration in the EU's External Relations (Hart, 2012), and has published extensively on international biodiversity law. Elsa Tsioumani (LLM, College of Europe) is a lawyer specializing in international and European environmental law. She is currently an ERC Research Fellow at the University of Edinburgh School of Law. She has consulted for various international organizations, and has published extensively on international biodiversity law and policy. Matthias Buck (Ass. iur, M.A.) works with the European Commission and is currently seconded to the German government, advising on EU aspects of the energy transition project. He was the main EU negotiator of the Nagoya Protocol from 2007 to its adoption. He has published widely on EU and international environmental policy and law.