Equity Without Borders: The Transboundary Applicability of the Nagoya Protocol and the Need for Reassessment

Introduction

The Nagoya Protocol (“Protocol”) was introduced in the year 2014 to fulfil the objectives of the Convention on Biological Diversity. Specifically, the Protocol aimed to implement the objective of fair and equitable benefit sharing arising out of the utilisation of genetic resources. In pursuance of these notions, Articles 10 and 11 of the Protocol envision scenarios wherein states engage in transboundary cooperation in the use and management of shared genetic resources. This is also reiterated in the 13^th preambular recital of the Protocol that calls for ‘innovative solutions’ to mechanize a fair and equitable access and benefit sharing (“ABS”) regime.

However, as noted in existing literature, these provisions have often been overlooked and underutilised. This may be attributed to its vague nature, which renders it susceptible to confusion. As noted in meetings in the past,[1] the scope and nature of the terminology utilised by the drafters in these provisions, such as “special modalities”, “innovative solutions”, or “same genetic resources”, constitute a broad framework within which the procedures are yet to be laid out (p.28). Fundamentally, there are two broad apprehensions that have arisen in consequence of this provision. Firstly, what constitutes a single genetic resource, and secondly, how do states work together in circumstances where they both have equal rights over the same genetic resource?

In this article, the author argues towards a more objective, specific interpretation of this concept. First, the author provides a brief on provisions 10 and 11 in the Nagoya Protocol and their intent. Second, the author analyses Articles 10 and 11 that allow for global multi-lateral benefit sharing and transboundary co-operation to ascertain what constitutes the same genetic resource and attempts to clarify the misclassification of these resources by nature, rather than genetic congruence. Third, the author bolsters the initial claim with support from the International Court of Justice’s jurisprudential trajectory, drawing a line of argumentation that these resources must be subject to transboundary cooperation. Lastly, the author concludes and signifies how a more purposeful interpretation of these provisions, accounting for these scenarios, may result in better clarity and allow the provision to lie in consonance with the objective of a fair ABS regime.

Transboundary Genetic Resources

The Nagoya Protocol, under Article 6, states that genetic resources are under the purview of the state of origin. However, Articles 6(2) and 11 of the Protocol acknowledge that other states may have rights over these same genetic resources, particularly in situations where resources occur across borders or where prior informed consent needs to be obtained from indigenous communities across borders. To operationalise this, Article 10 calls on parties to consider the need for and modalities of a Global Multilateral Benefit-sharing Mechanism. This mechanism is envisioned as a forum to regulate access and ensure equitable benefit-sharing in cases involving transboundary genetic resources or traditional knowledge that cannot be clearly attributed to a single party.

Although embedded in the Protocol, consistent records of meetings of the parties indicate that the provision largely remains non-operational. Scholars observe that Article 10 was inserted as a late-stage political compromise rather than the product of substantive consensus, which has contributed to its vague formulation and the absence of operational clarity. These provisions are declaratory in nature and lack binding obligations or standardised procedures that could guide states in structuring such cooperation, leaving considerable uncertainty as to their scope and enforceability.

Transboundary Co-operation and Genetic Resources  

Commentaries on the Protocol suggest that there is uncertainty regarding whether the provisions apply to all genetic resources. While literature indicates that the primary intention of the drafters was to include plant and seed varieties, some reports (p.15) state that animal varieties may also be considered. However, this dichotomy, favouring only plant varieties, may be flawed. While plant varieties are stated to have more similar genetic identity, it is fallacious to disregard discussions on animal varieties that satisfy the required threshold as well. Although the “same genetic resource” is not defined in the Protocol. Article 11(1) refers to in situ conditions (p. 9), which may provide interpretative guidance. This refers to conditions in which these organisms have developed their distinct properties due to specific climatic conditions.

The ostensible corollary then arises that indigenous species to more than one country would engender the axis of this section. This occurs as they are the same species that have developed in the same conditions simultaneously. Thereby, the distinction must not be based on the taxonomy of the organism (plant or animal), but rather on whether genetic congruence can be objectively established as equivalent to originating in in-situ conditions. Scientific studies support this argument, showing that animals within the same species have near-identical genetic congruence.

Thus, the science suggests that it may be possible to establish an objective threshold for what constitutes the same genetic resource, based on identical genetic congruence, rather than the nature of the organism. This would vitiate the existing dubiety, enabling ratified states to take concrete steps forward in establishing an equitable ABS regime.

Transboundary Co-operation and the ICJ 

The International Court of Justice (hereinafter “ICJ”) has yet to decide on a case substantially involving the interpretation of the same genetic resource in the Nagoya Protocol. Although, as Justice Weeramantry puts it, it is inevitable and extremely likely that scenarios involving shared resources that require cooperation will soon start venturing to the Court due to increasing transboundary rights. Nonetheless, the Court’s jurisprudence on transboundary physical resources may be pertinent.

The Court has, at various points, reaffirmed a state’s sovereignty over its resources and the rights of access and usage of other states over shared resources. For example, in the case of Hungary v. Slovakia, the Court found that shared or transboundary resources must be subject to multilateral cooperation rather than unilateral appropriation. Similarly, the Permanent Court of Arbitration, in decisions such as the Sudan & South Sudan and Eritrea/Yemen, held that international communities, across borders, would have the same right over their traditional knowledge and resources, irrespective of their present country of residence.

However, to apply the ICJ’s standing solely to resources that physically share state borders would insinuate that it is only immovable property that may be protected by the bounds of international precedent, which is a superfluous premise. There is no rationale that could justify applying these provisions to scenarios based on proximity criteria, when genetic resources and traditional knowledge have been affirmed to be within one’s rights as under the Protocol.

Applying the court’s reasoning, transboundary cooperation must be based on genetic congruence and the linkage of the indigenous community, rather than the taxonomy of the organism. Jurisprudence shows that the nature of the resource is secondary to the fact that both states have equal rights over the resource. As the Convention on Biological Diversity Act and Nagoya Protocol are silent on how to settle a standstill by the parties with regard to the management and use of the genetic resource, the best bet would be for both parties to engage in multilateral cooperation and equally share the benefits arising out of the resource, as envisioned by the Protocol and ICJ rulings.

Conclusion

The present dilemma exposes a lacuna between the cooperative intent of the Nagoya Protocol and practical realities. The meeting reports and drafting history indicate that there is an evident uncertainty in how these articles are to be used. Further, Article 10’s saturation with vague terms and the lack of cohesive structural guidance have deterred states from adequate implementation. This is also coupled with the fact that the Article still remains largely declaratory in nature, thereby allowing states to easily circumvent following its rules. Similarly, Article 11 provides no workable standard for determining when states are dealing with the same genetic resource, which could potentially result in a standstill when disputes of this nature arise.

The ICJ’s jurisprudence in the governance of transboundary resources provides a persuasive analogy for genetic resources that exist within various boundaries. This, coupled with scientific understanding of genetic congruence, establishes that genetic resources should be analysed via objective thresholds of similarity rather than arbitrary distinctions by category.

In doing so, the Nagoya framework would be better equipped to realise its original mandate of establishing equitable architecture for the ABS regime in an era of increasingly complex and shared biological interdependence.

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[1] United Nations Environmental Programme, Report of the second meeting, U.N. Doc. UNEP/CBD/COP/11/6, Annex, pt. A, question 1 & pt. B, questions 1–2, at 27–28 (2012).

This article has been authored by Tanya Sara George, a student at Maharashtra National Law University, Mumbai. It is a part of RSRR's Rolling Blog Series.