EU Legislation On Nagoya Protocol Becomes Effective; What Effect On Indigenous Peoples’ Rights?


The entry into force of an international treaty facilitating access to genetic resources and ensuring the fair sharing of potential commercial benefits has prompted the applicability of a European Union regulation relating to the treaty. This led a researcher to call on the treaty members to ensure its implementation protects the rights of indigenous and local communities.

The Nagoya Protocol to the Convention on Biological Diversity (CBD) which was adopted in October 2010, entered into force yesterday (IPW, Biodiversity/Genetic Resources/Biotech, 9 October 2014).

The European Parliament and the Council adopted EU Regulation ((EU) No 511/2014) on compliance measures for users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union, on16 April 2014. The regulation entered into force on 9 June and was expected to apply once the Protocol itself enters into force, which occurred on 12 October.

“Some of the provisions of the Regulation will only become applicable one year after that, because additional measures need to be put in place before they can be applied,” the EU said on its dedicated webpage.

The EU Regulation states that “This Regulation shall be binding in its entirety and directly applicable in all Member States.”

According to Joe Hennon, spokesperson for Environment Commissioner Janez Potočnik, the regulation will now apply to all EU member states, including to those states which have not yet ratified the Nagoya Protocol.

Concerns for the Rights of Indigenous Communities

But according to Brendan Tobin, research fellow at the Australian Centre for Intellectual Property in Agriculture (ACIPA), the European Union legislation as adopted includes positive measures, but “seriously undermines the realization of both the spirit and the word of the Protocol as it applies to the rights of indigenous and local communities.”

According to Tobin’s briefing paper, the EU legislation “conflicts with obligations under Article 7 [Access to Traditional Knowledge Associated with Genetic Resources] of the Protocol.”

In addition, the legislation “only applies to genetic resources that are regulated under national legislation in the country where they are sourced.” This is contrary to the Protocol, which applies to established rights of indigenous and local communities, including customary law, he said.

In a note to the briefing, Tobin remarks, “The Nagoya Protocol negotiations were influenced by a belief that the WIPO IGC [World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore] was moving towards the development of a regime for protection of traditional knowledge.”

“The WIPO IGC process suffered a major setback in September 2014 when the IGC work faced strong opposition by the United States (Not a Party to the Nagoya Protocol) to establishment of a Diplomatic Conference on any of its three draft instruments,” he said.

He called on the first meeting of the parties of the Nagoya Protocol, taking place from 13-17 October, to “address as a priority the duty of states to ensure the full and effective implementation of the rights of indigenous and local communities, and to take into consideration their customary laws and protocols in the implementation of the Protocol.”

The briefing note includes a list of actions that may be taken by states to protect the rights of indigenous peoples and local communities over their genetic resources and traditional knowledge.

Tobin previously authored an article entitled, ““European Union Draft Law Threatens Indigenous Peoples’ Rights over their Traditional Knowledge and Genetic Resources,” published in the European Intellectual Property Review (IPW, Biodiversity/ Genetic Resources/Biotech, 7 May 2014).