International Affairs · Law · Public Policy

The Nagoya Protocol has been ratified–What does this mean?

There are indelible links between climate change, deforestation, food security – all of which form the basis of what we call sustainable development. Sustainable development is the platform that rests on the pillars of economic, social and environmental development and justice.  The role of biodiversity in securing and enhancing these three pillars needs to be more mainstreamed than it currently is. Research conducted by the Stockholm Resilience Center (see the Planetary Boundaries diagram) proposed a framework indicating the current condition of anthropogenic effects on the planet. The study found that the boundary of biodiversity loss has been dangerously crossed by human activities – much more than climate change, land use, ocean acidification etc.

As the international community understood the urgent need to protect biodiversity, the Convention on Biological Diversity (CBD) of the United Nations Environment Program was signed in Rio de Janeiro in June 1992 by 150 countries including India and came into effect in December 1993. The CBD is an international legally binding treaty. It has three main objectives:

  1. Conservation of biological diversity
  2. Sustainable use of its components
  3. Fair and equitable sharing of benefits arising from genetic resources

India represents 4 of the 34 global “biodiversity hotspots” and became Party to the Convention in February 1994. Following the ratification, after eight years, India established a three-tier system nationally under an umbrella legislation called the Biological Diversity Act 2002 to implement the aims of the CBD. Under the Act, there is an autonomous body called the National Biodiversity Authority headquartered in Chennai which overlooks State Biodiversity Boards at the state level and Biodiversity Management Committees at the local level.

The first two goals of the CBD correspond with the need to mitigate biodiversity loss. To achieve these goals, it is imperative to protect those who protect biodiversity – indigenous peoples mainly, and local communities and their traditional knowledge, which is what the third goal of the CBD seeks to do. This protection is not limited to biodiversity protection only and lends itself to several intersecting thematic areas such as addressing poverty concerns and social inequity, as well as climate change adaptation. In a nutshell, as research in the area increases, the strong links between indigenous livelihoods, biodiversity and climate change and ultimately, the social and economic health of a country become more evident.

Recognition of indigenous rights became more pronounced as the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization was signed in Nagoya, Japan in 2010. The main aim of the Protocol, as the name suggests, is to ensure that the benefits of natural and genetic resources and their commercial derivatives are shared adequately and justly with the indigenous and local communities from wherein such resources emanate. For example, a multinational pharmaceutical company using genetic material such as pathogens for manufacturing medicines will now have to share commercial benefits with the communities who have been keepers of the genetic resource and/or the knowledge that tie the resource to its benefits. The Nagoya Protocol was ratified by the 50th party in July 14, 2014 which brings it into force from October 2014.  India ratified the Protocol in October 2012. The current environment minister Prakash Javadekar has stated that objectives under the Protocol will be executed through the National Biodiversity Act.

While this is a very welcome step for India while dealing with external international agencies that make use of resources from India (biopiracy), it is not clear how the national authority will ensure such benefit-sharing occurs internally as well. Even though scheduled tribes find an integral place in the Indian Constitution, internationally India has oscillated between maintaining that there are no indigenous peoples in India, and that all Indians are indigenous to their land. While there are legitimate arguments for and against this line of thinking, there is a pressing need to examine India’s internal policies surrounding the CBD and indigenous protection and now, the Nagoya Protocol. What are the guidelines for Indian pharmaceutical companies that exploit local resources? Are principles such as prior, informed consent adhered to internally and does the Act establish adequate legal norms to ensure community protection within the Indian system? Will the National Biodiversity Act have to be revisited to reflect concerns under the Nagoya Protocol effectively? These are issues that must be thoroughly researched for the protection of biodiversity and ensuring social equity.

About the Author

PhotoIpshita is an alumnus of W.B. National University of Juridical Sciences (BA/LLB (Hons) – 2006) and the University of Melbourne (LLM-2013). She has more than four years of research experience in environment and resources law, forests and biodiversity and carbon finance. She is currently working as the Executive Editor at Alexis Insights.

One thought on “The Nagoya Protocol has been ratified–What does this mean?

  1. Hi Ipshita… you have any idea how the Nagoya protocol is going to deal with microbial culture used in pharmaceutical industry?

Leave a Reply