Protocol

Cartagena Protocol on Biosafety---(2000)

The Cartagena Protocol on Biosafety is an international agreement on biosafety, as a supplement to the Convention on Biological Diversity. The Biosafety Protocol seeks to protect biological diversity from the potential risks posed by living modified organisms resulting from modern biotechnology.

The Biosafety Protocol makes clear that products from new technologies must be based on the precautionary principle and allow developing nations to balance public health against economic benefits. It will for example let countries ban imports of a living modified organism if they feel there is not enough scientific evidence that the product is safe and requires exporters to label shipments containing genetically altered commodities such as corn or cotton.

In accordance with the precautionary approach, contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of the Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of 'living modified organisms resulting from modern biotechnology' that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements (Article 1 of the Protocol, SCBD 2000).

The Protocol applies to the transboundary movement, transit, handling and use of all living modified organisms that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health (Article 4 of the Protocol, SCBD 2000).

Aarhus Convention

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as theAarhus Convention, was signed on June 25, 1998 in the Danish city of Aarhus. It entered into force on 30 October 2001. As of July 2009, it had been signed by 40 (primarily European and Central Asian) countries and the European Union and ratified by 41 countries. It had also been ratified by the European Community, which has begun applying Aarhus-type principles in its legislation, notably the Water Framework Directive (Directive 2000/60/EC).

The Aarhus Convention grants the public rights regarding access to information, public participation and access to justice, in governmental decision-making processes on matters concerning the local, national and transboundary environment. It focuses on interactions between the public and public authorities.

Content

The Aarhus Convention is a multilateral environmental agreement through which the opportunities for citizens to access environmental information are increased and transparent and reliable regulation procedure is secured.^[1][2] It is a way of enhancing the environmental governance network, introducing a reactive and trustworthy relationship between civil society and governments and adding the novelty of a mechanism created to empower the value of public participation in the decision making process and guarantee access to justice: a "governance-by-disclosure" that leads a shift toward an environmentally responsible society.^[3] The Aarhus Convention was drafted by governments, with the highly required participation of NGOs, and is legally binding for all the States who ratified it becoming Parties. Among the latter is included the EC, who therefore has the task to ensure compliance not only within the member States but also for its institutions, all those bodies who carry out public administrative duties.^[4] Each Party has the commitment to promote the principles contained in the convention and to fill out a national report, always embracing a consultative and transparent process^[5]

[edit]General features

The Aarhus Convention is a right-based approach: public, present and future generation, have the right to know and to live in an healthy environment.

A distinction is made between "the public", all the civil society's actors, and the "public concerned" precisely, those person or organisations affected or interested in environmental decision-making (e.g. environmental NGOs).^[6] "Public authorities" are the addressees of the convention, namely, governments, international institutions, and privatized bodies that have public responsibilities or act under the control of public bodies. Private sector, for which information disclosure depends on voluntary, non- mandatory practices, and bodies acting in a judicial or legislative capacity are excluded.^[7]

Other significant provisions are the "non-discrimination" principle (all the information has to be provided without taking account of the nationality or citizenship of the applicant), the international nature of the convention,^[8][9] and the importance attributed to the promotion of environmental education of the public.

[edit]The Three Pillars

1. Access to information: any citizen should have the right to get a wide and easy access to environmental information. Public authorities must provide all the information required and collect and disseminate them and in a timely and transparent manner. They can refuse to do it just under particular situations (such as national defence);^[10][11]UNECE, 2006)
2. Public participation in decision making: the public must be informed over all the relevant projects and it has to have the chance to participate during the decision-making and legislative process. Decision makers can take advantage from people's knowledge and expertise; this contribution is a strong opportunity to improve the quality of the environmental decisions, outcomes and to guarantee procedural legitimacy ^[12][13]
3. Access to justice: the public has the right to judicial or administrative recourse procedures in case a Party violates or fails to adhere to environmental law and the convention's principles.

Compliance Committee

The Convention has a unique Compliance Review Mechanism, which can be triggered in four ways:

1. a Party makes a submission concerning its own compliance,
2. a Party makes a submission concerning another Party's compliance,
3. the Convention Secretariat makes a referral to the Committee, or
4. a member of the public makes a communication concerning the compliance of a party.

The Compliance mechanism is unique in international environmental law, as it allows members of the public to communicate concerns about a Party's compliance directly to a committee of international legal experts empowered to examine the merits of the case (the Aarhus Convention Compliance Committee). Nonetheless, the Compliance Committee cannot issue binding decisions, but rather makes recommendations to the full Meeting of the Parties (MoP). However, in practise, as MoPs occur infrequently, Parties attempt to comply with the recommendations of the Compliance Committee. As of August 2009, 41 communication from the public - many originating with non-governmental organizations - and 1 submission from Party had been lodged with the Convention's Compliance Committee.

Convention on Biological Diversity (CBD)

The Convention on Biological Diversity (CBD), known informally as the Biodiversity Convention, is an international legally binding treaty. The Convention has three main goals:

1. conservation of biological diversity (or biodiversity);
2. sustainable use of its components; and
3. fair and equitable sharing of benefits arising from genetic resources

In other words, its objective is to develop national strategies for the conservation and sustainable use of biological diversity. It is often seen as the key document regarding sustainable development.

The Convention was opened for signature at the Earth Summit in Rio de Janeiro on 5 June 1992 and entered into force on 29 December 1993.

2010 was the International Year of Biodiversity. The Secretariat of the Convention on Biological Diversity is the focal point for the International Year of Biodiversity. At the 2010 10th Conference of Parties (COP) to the Convention on Biological Diversity in October in Nagoya, Japan, the Nagoya Protocol was adopted.^[1] On 22 December 2010, the UN declared the period from 2011 to 2020 as the UN-Decade on Biodiversity. They, hence, followed a recommendation of the CBD signatories during COP10 at Nagoya in October 2010.

About the convention

The convention recognized for the first time in international law that the conservation of biological diversity is "a common concern of humankind" and is an integral part of the development process. The agreement covers all ecosystems, species, and genetic resources. It links traditional conservation efforts to the economic goal of using biological resources sustainably. It sets principles for the fair and equitable sharing of the benefits arising from the use of genetic resources, notably those destined for commercial use. It also covers the rapidly expanding field of biotechnology through its Cartagena Protocol on Biosafety, addressing technology development and transfer, benefit-sharing and biosafetyissues. Importantly, the Convention is legally binding; countries that join it ('Parties') are obliged to implement its provisions.

The convention reminds decision-makers that natural resources are not infinite and sets out a philosophy of sustainable use. While past conservation efforts were aimed at protecting particular species and habitats, the Convention recognizes that ecosystems, species and genes must be used for the benefit of humans. However, this should be done in a way and at a rate that does not lead to the long-term decline of biological diversity.

The convention also offers decision-makers guidance based on the precautionary principle that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat. The Convention acknowledges that substantial investments are required to conserve biological diversity. It argues, however, that conservation will bring us significant environmental, economic and social benefits in return.

The Convention on Biological Diversity of 2010 would ban some forms of geoengineering.^[2]

[edit]Issues under the convention

Some of the many issues dealt with under the convention include:

• Measures and incentives for the conservation and sustainable use of biological diversity.
• Regulated access to genetic resources and traditional knowledge, including Prior Informed Consent of the party providing resources.
• Sharing, in a fair and equitable way, the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources (governments and/or local communities that provided the traditional knowledge or biodiversity resources utilized).
• Access to and transfer of technology, including biotechnology, to the governments and/or local communities that provided traditional knowledge and/or biodiversity resources.
• Technical and scientific cooperation.
• Impact assessment.
• Education and public awareness.
• Provision of financial resources.
• National reporting on efforts to implement treaty commitments.

[edit]Cartagena Protocol

Main article: Cartagena Protocol on Biosafety

The Cartagena Protocol on Biosafety of the Convention, also known as the Biosafety Protocol, was adopted in January 2000. The Biosafety Protocol seeks to protect biological diversity from the potential risks posed by living modified organisms resulting from modern biotechnology.

The Biosafety Protocol makes clear that products from new technologies must be based on the precautionary principle and allow developing nations to balance public health against economic benefits. It will for example let countries ban imports of a genetically modified organism if they feel there is not enough scientific evidence the product is safe and requires exporters to label shipments containing genetically modified commodities such as corn or cotton.

The required number of 50 instruments of ratification/accession/approval/acceptance by countries was reached in May 2003. In accordance with the provisions of its Article 37, the Protocol entered into force on 11 September 2004.

Global Strategy for Plant Conservation

In April 2002, the parties of the UN CBD adopted the recommendations of the Gran Canaria Declaration Calling for a Global Plant Conservation Strategy, and adopted a 16 point plan aiming to slow the rate of plant extinctions around the world by 2010.

Satoyama Initiative

The Satoyama Initiative aims to conserve sustainable human-influenced natural environments (Socio-Ecological Production Landscapes; SEPL) through broader global recognition of their value.

The partnership, IPSI, comprises organisations committed to support SEPL for the benefit of biodiversity and human well-being through the implementation of their respective activities. Please refer to Paris Declaration and other materials for further information.

What is the Nagoya Protocol?

The Nagoya Protocol on Access and Benefit-sharing is a new international treaty that builds on and supports the implementation of the CBD, in particular one of its three objectives, the fair and equitable sharing of benefits arising from the utilization of genetic resources. The Nagoya Protocol is a landmark agreement in the international governance of biodiversity and is relevant for a variety of commercial and non-commercial sectors involved in the use and exchange of genetic resources. 

The Nagoya Protocol is based on the fundamental principles of access and benefit-sharing enshrined in the CBD. These principles are based on potential users of genetic resources obtaining the prior informed consent (PIC) of the country in which the genetic resource is located before accessing the resource, and negotiating and agreeing on the terms and conditions of access and use of this resource through the establishment of mutually agreed terms (MAT). This agreement includes the sharing of benefits arising from the use of the resource with the provider as a prerequisite for access to the genetic resource and its use. Conversely, countries, when acting as providers of genetic resources, should provide fair and non-arbitrary rules and procedures for access to their genetic resources. 

Why is the Nagoya Protocol important? 

The Nagoya Protocol will create greater legal certainty and transparency for both providers and users of genetic resources. It helps to ensure enefitsharing, in particular when genetic resources leave the country providing the genetic resources, and it establishes more predictable conditions for access to genetic resources.

By enhancing legal certainty and promoting benefit-sharing, the Nagoya Protocol encourages the advancement of research on genetic resources which could lead to new discoveries for the benefit of all. The Nagoya Protocol also creates incentives to conserve and sustainably use genetic resources, and thereby enhances the contribution of biodiversity to development and human well-being.

What does the Nagoya Protocol cover? 

The Nagoya Protocol covers genetic resources and traditional knowledge (TK) associated with genetic resources, as well as the benefits arising from their utilization.

What are the core elements of the Nagoya Protocol?

The Nagoya Protocol sets out core obligations for its contracting Parties to take measures in relation to access to genetic resources, benefit-sharing and compliance.

Access obligations

Domestic-level access measures should:

• Create legal certainty, clarity and transparency

• Provide fair and non-arbitrary rules and procedures

• Establish clear rules and procedures for prior informed consent and mutually agreed terms

• Provide for issuance of a permit or its equivalent when access is granted

• Create conditions to promote and encourage research contributing to biodiversity conservation and sustainable use

• Pay due regard to cases of present or imminent emergencies that threaten human, animal or plant health 

• Consider the importance of genetic resources for food and agriculture and their special role for food security.

Benefit-sharing obligations

Domestic-level benefit-sharing measures should provide for the fair and equitable sharing of benefits arising from the utilization of genetic resources, as well as subsequent applications and commercialization, with the contracting party providing the genetic resources. Utilization includes research and development on the genetic and/or biochemical composition of genetic resources. Sharing of benefits is subject to mutually agreed terms. Benefits may be monetary (such as royalties) or non-monetary (such as sharing research results or technology transfer).     

The Nagoya Protocol also proposes the creation of a global multilateral benefitsharing mechanism in order to address benefit-sharing with respect to genetic 

resources occurring in transboundary areas or situations where prior informed consent cannot be obtained.  The nature of this mechanism is to be defined. 

Benefits from the mechanism are to be used to support the conservation and sustainable use of biodiversity globally.

Compliance obligations

Specific obligations to support compliance with the domestic legislation or regulatory requirements of the contracting party providing genetic resources, 

and contractual obligations reflected in mutually agreed terms, are a significant innovation of the Nagoya Protocol. Parties to the Nagoya Protocol should: 

• Take measures to provide that genetic resources utilized within their jurisdiction have been accessed in accordance with prior informed consent, 

and that mutually agreed terms have been established

• Cooperate in cases of alleged violation of another Party’s requirements

• Encourage contractual provisions on dispute resolution in mutually 

agreed terms

• Ensure an opportunity is available to seek recourse under their legal systems 

when disputes arise from mutually agreed terms

• Take measures regarding access to justice

• Take measures to monitor the utilization of genetic resources including by designating effective checkpoints at any stage of the value-chain: research, 

development, innovation, pre-commercialization or commercialization

The Nagoya Protocol also provides for the development, update and use of model contractual clauses for mutually agreed terms, as well as codes of conduct, guidelines and best practices and/or standards for different sectors.

How does the Nagoya Protocol address traditional knowledge associated with genetic resources and genetic resources held by indigenous and local communities?

The Nagoya Protocol addresses traditional knowledge associated with genetic resources with provisions on access, benefit-sharing and compliance. It also 

addresses genetic resources where indigenous and local communities have the established right to grant access to them. Parties to the Nagoya Protocol are to 

take measures to ensure these communities’ prior informed consent, and fair and equitable benefit-sharing, keeping in mind customary laws and procedures as well as customary use and exchange of genetic resources. 

By setting-out clear provisions on access to traditional knowledge associated with genetic resources, the Nagoya Protocol will assist in strengthening the ability of indigenous and local communities to benefit from the use of their knowledge, innovations and practices. The Nagoya Protocol will also provide incentives for the promotion and protection of traditional knowledge by encouraging the development of community protocols, minimum requirements for mutually agreed terms and model contractual clauses related to access and benefit-sharing of traditional knowledge associated with genetic resources.  

Supporting mechanisms to assist with implementation

The Nagoya Protocol’s success relies on its effective implementation at the domestic level. Supporting mechanisms provided by the Nagoya Protocol will assist its contracting Parties with implementation, these include:

• The establishment of national focal points and competent national authorities to serve as contact points for obtaining information, granting access and 

cooperation between Parties. 

• An Access and Benefit-sharing Clearing-House, which is a web based platform to share information to support the implementation of the Nagoya Protocol. Each Party to the Nagoya Protocol shall provide, for example, information on domestic ABS requirements, on national focal points and competent national authorities, as well as make available permits or their equivalent issued at the time of access. 

• Capacity-building to support key aspects of implementation. Based on a country’s self assessment of national needs and priorities this can include 

capacity to:

о Develop domestic ABS legislation to implement the Nagoya Protocol

о Negotiate mutually agreed terms

о Develop in-country research capacity

• Awareness-raising through promotion of the Nagoya Protocol and an exchange of experiences and information, with and among key stakeholders, including indigenous and local communities, the research community, and others.

• Technology transfer, primarily through collaboration and cooperation in technical and scientific research and development programmes, including biotechnological research.

• Targeted financial support for capacity-building and development initiatives through the Nagoya Protocol’s financial mechanism, the Global Environment Facility (GEF).

When will the Nagoya Protocol enter into force?

The Nagoya Protocol is open for signature at the United Nations Headquarters in New York from 2 February 2011 until 1 February 2012. It will enter into force 90 days after the date of deposit of the 50th instrument of ratification by a Party to the CBD.