Access and benefit sharing under nagoya protocol and sustainable development: a critical analysis

• Author: Stellina Jolly
• Position: South Asian University
• Pages: 38-45

AGORA International Journal of Juridical Sciences, http://univagora.ro/jour/index.php/aijjs

ISSN 1843-570X, E-ISSN 2067-7677

No. 3 (2015), pp. 38-45

ACCESS AND BENEFIT SHARING UNDER NAGOYA PROTOCOL

AND SUSTAINABLE DEVELOPMENT: A CRITICAL ANALYSIS

J. Stellina

Dr. Stellina Jolly

South Asian University, (SAARC) Asst Professor, Faculty of Legal Studies, New Delhi,

India, 110023

E-mail: stellinajolly@sau.ac.in

Abstract

The debate over control and ownership of natural and bio genetic resources has a

chequered history in International environmental law. Historically genetic resources were

considered and acknowledged as part of common heritage of mankind. But with the

development of technologies and the heightened north south divide over the issue of sovereign

right over natural resources the developing nations became extremely concerned with the

exploitation of biological and Genetic resources. Access to benefit sharing (ABS) was

considered as an answer to balance the interests of developed and developing nations and to

conserve and protect bio diversity. Adopted on October 2010 in Nagoya, Japan by the Parties

to the Convention on Biological Diversity (CBD) of 1992, the Nagoya Protocol on Access to

Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their

Utilization (NP) has come into force after its 50th ratification on 2013. Nagoya protocol

details on procedure for access and benefit sharing, disclosure mechanism, principles of

transparency and democracy. The paper analyses the protection of access and benefit sharing

envisaged under Nagoya protocol and its possible role in promoting sustainable development

in the develoing nations.

Key Words: Sustainable Development, Nagoya Protcol, Biological Resources, Bio

Diversity.

Introduction

On October 2010, international community saw the successful adoption of the

‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of

Benefits by the parties to CBD.1 It has been hailed as one of the momentous and

unprecedented legal development and is expected to promote intra and intergenerational

equity between developed and developing nations.2 Such a sharing mechanism became

imperative as the biological diversities are mostly located in developing nations and the

technological developments to utilise and tap the potential of these biological diversities are

the monopoly of developed north.3 To complicate the matter until the end of the last century,

genetic resources and biological resources were managed as public domain goods on the basis

of the “common heritage”(CHM) concept.4 Absence of private appropriation, sharing of

1 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from

their Utilization to the Convention on Biological Diversity, Oct. 29, 2010, UNEP/CBD/COP/DEC/X/1 of 29.

COP 10 Decision X1: X/1.Access to genetic resources and the fair and equitable sharing of benefits arising from

their utilization, (http://www.cbd.int/decision/cop/?id=12267(Accessed on 3-07-2015)

2 E, Louka, International Environmental law, Fairness Effectiveness and World Order, Cambridge, p 310, 2006.

3 ibid.

4 B, Kemal, The Concept of the Common Heritage of Mankind in International Law, Hague, Martinus Nijhoff, p

xxi, 7, 1988.

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