A major accomplishment at the tenth meeting of the Conference of the Parties to the Convention on Biological Diversity (COP-10, held from 18-29 October 2010 in Nagoya, Japan) was the adoption of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from the Utilization of Genetic Resources of the Convention on Biological Diversity (‘the Nagoya Protocol’) following six years of intense negotiations.
I would like to highlight some key elements of the Protocol, as well as some recent developments in the broader programme of work of the Convention related to traditional knowledge relevant to biological diversity.
The Nagoya Protocol
The purpose of the Protocol is to effectively implement one of the three core objectives of the Convention: the fair and equitable sharing of benefits arising from the utilization of genetic resources. It builds on the access and benefit-sharing provisions of the Convention.
The Preamble provides a context for the interpretation of the text of the Protocol. The preamble contains seven paragraphs relevant to indigenous and local communities (ILCs) and traditional knowledge (TK). These paragraphs includes references to article 8(j), the interrelationship between genetic resources and TKand their inseparable nature, the diversity of circumstances in which TKis owned or held (including by countries), the identification of the rightful holders of TK, the Declaration on the Rights of Indigenous Peoples and the non-extinguishment of existing rights.
At the core of the Protocol are obligations related to access to genetic resources, the fair and equitable sharing of benefits arising out of genetic resources, as well as compliance with prior informed consent and mutually agreed terms. In addition, to support compliance Parties have the obligation to take measures to monitor the utilization of genetic resources, including through the designation of checkpoints and reporting requirements. Furthermore, an internationally recognized certificate of compliance issued by the providers of genetic resources will serve as evidence that genetic resources have been accessed in accordance with prior informed consent and that mutually agreed terms have been established. The issuance of certificates of compliance will be made available to the Access and Benefit-sharing Clearing House established under the Protocol.
The Protocol also contains significant provisions relating to traditional knowledge associated with genetic resources held by indigenous and local communities, as well as to genetic resources held by indigenous and local communities where the rights of these communities over these resources have been recognized.
The Protocol sets out clear obligations to seek the prior informed consent of indigenous and local communities in these situations. It also provides for the sharing of benefits arising from the use of traditional knowledge associated with genetic resources, as well as benefits arising from the use of genetic resources in accordance with domestic legislation. Benefit sharing must be based on mutually agreed terms.
In addition, Parties to the Protocol must ensure that their nationals comply with the domestic legislation and regulatory requirements of provider countries related to access and benefit-sharing of traditional knowledge associated with genetic resources.
It should also be noted that the Decision of the Conference of the Parties contains a review clause related to developments in the World Intellectual Property Organization (WIPO). To be more specific, four years after the entry into force of the Protocol, the Conference of the Parties serving as the Meeting of the Parties to the Protocol is to undertake an evaluation of the effectiveness of the Protocol. In this context, the Conference of the Parties decided that the implementation of the article related to compliance with domestic legislation or regulatory requirements on access and benefit-sharing for traditional knowledge associated with genetic resources should be reviewed in light of developments in other relevant international organizations, including WIPO.
Finally, the article of the Protocol addressing the relationship with international agreements and instruments may also be of interest. It refers to the possibility for Parties to develop and implement other relevant international agreements, including other specialized access and benefit-sharing agreements, provided that they are supportive of and do not run counter to the objectives of the Convention and the Protocol. It also refers to the need to pay due regard to ongoing work under relevant international organizations.
Work Programme on Article 8(j) of the Convention (‘Traditional Knowledge’)
Regarding Article 8(j) and related provisions, the Conference of the Parties requested the Secretariat to continue its work on sui generis systems by collated and analyzing information including evidence about the effectiveness of sui generis measures that have been taken at the local, sub-national, national, or regional levels. The Secretariat has also been requested to assist the World Intellectual Property Organization in completing its work on the development of the WIPO toolkit on the documentation of traditional knowledge.
The COP also finalized the drafting of the Code of Ethical Conduct on Respectfor the Cultural and Intellectual Heritage of Indigenous and Local Communities Relevant for the Conservation and Sustainable Use of Biological Diversity (“the Tkarihwaié:ri  code of ethical conduct”) and invited Parties and Governments to make use of its elements to guide the developments of models of codes of ethical conduct for research, access to, use, exchange and management of information concerning traditional knowledge.
The COP also adopted a revised multi-year programme of work for Article 8(j) including the initiation of new tasks related to the recently adopted Nagoya Protocol and its implementation, including: (i) guidelines for benefit sharing and obtaining prior informed consent from indigenous and local communities, (ii) the identification of obligations of provider and user countries, and (iii) guidelines for the national implementation of Article 8(j) and related provisions and standards and guidelines for the reporting and prevention of unlawful appropriation of traditional knowledge and related genetic resources. The COP also decided to initiate work on the development of guidelines for the repatriation of information, including cultural property.
The COP also adopted two additional indicators for traditional knowledge to complement the already adopted indicator on status and trends in traditional languages. They are: (i) status and trends in land-use and land tenure in the traditional territories of indigenous and (ii) local communities and status and trends in practice of traditional occupations. Future indicators work will considered indicators for customary sustainable use (Article 10(c)).
Finally the COP decided on a major new component of work on sustainable use of biodiversity with a focus on customary sustainable use, as well as an expert meeting for local community representatives to better understand the concept of local community under the mandate of the Convention and to engage them more effectively in the work of the convention.
The 7th meeting of the WG 8(j) will occur from 31 October to 4 November 2011, back-to-back with SBSTTA and possibly in Montreal.
The Next Decade
Another key achievement of COP-10 - the adoption of the new strategic plan of the Convention for the next decade (2011-2020). The purpose of the Strategic Plan for the period 2011-2020 is to promote effective implementation of the Convention through a strategic approach comprising a shared vision, a mission, strategic goals and targets that will inspire broad-based action by all Parties and stakeholders. The mission of the Strategic Plan is to take effective and urgent action to halt the loss of biodiversity in order to ensure that, by 2020, ecosystems are resilient and continue to provide essential services, thereby securing the planet’s variety of life, and contributing to human well being and poverty eradication.