CBD and Nagoya Protocol on Access and Benefit Sharing

CBD and Nagoya Protocol on Access and Benefit Sharing

CBD and Nagoya Protocol: Legal Basis

"The Convention on Biological Diversity is an international treaty, adopted at the United Nations Conference on Environment and Development (Rio de Janeiro) on 29 June 1992, which has three main objectives: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising out of the utilization of genetic resources."

"The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation is a supplementary agreement to the Convention on Biological Diversity, adopted on 29 October 2010 in Nagoya, Japan, and entered into force on 12 May 2014."

Together, the CBD and the Nagoya Protocol constitute the principal international legal framework for biodiversity governance.

The CBD entered into force on 29 December 1993 and presently has 196 Parties (UNFCCC data, 2023).

💡 Key Insight: The CBD, with 196 Parties, is the most universally ratified treaty addressing biodiversity, underscoring its global relevance.

The Nagoya Protocol entered into force on 12 May 2014 and presently has 132 Parties (CBD Secretariat, 2023).

💡 Key Insight: The Nagoya Protocol translates the CBD’s abstract benefit‑sharing goal into concrete legal obligations through prior informed consent and mutually agreed terms.

CBD’s three objectives are conservation, sustainable use, and fair and equitable benefit sharing.

The Nagoya Protocol operationalises the third objective by imposing access and benefit‑sharing (ABS) obligations on genetic resources.

The Protocol mandates prior informed consent (PIC) and mutually agreed terms (MAT) before any utilization of genetic resources.

Compliance relies on national ABS legislation, monitoring, and the CBD Secretariat’s compliance committee.

The Protocol does not create a supranational enforcement body; enforcement rests with national authorities.

The Protocol does not regulate all biodiversity uses; it applies only to genetic resources and associated traditional knowledge.

Consequently, the CBD and Nagoya Protocol together form the only globally ratified treaty pair that addresses both biodiversity conservation and benefit sharing.

[!infographic: "Timeline showing adoption and entry‑into‑force dates of the CBD (adopted 29 June 1992, entered into force 29 December 1993) and the Nagoya Protocol (adopted 29 October 2010, entered into force 12 May 2014)"]<

⚖️ Comparative Analysis: Convention on Biological Diversity (CBD) vs. Nagoya Protocol

National ABS Legal Framework and Institutional Architecture

The Biological Diversity Act 2002 (BDA) constitutes India’s primary legislation implementing the CBD and Nagoya Protocol. Section 3(1) creates the National Biodiversity Authority (NBA) as a statutory body empowered to issue Prior Informed Consent (PIC), negotiate Mutually Agreed Terms (MAT), and monitor benefit‑sharing compliance. Section 3(2) mandates each state to establish a State Biodiversity Board (SBB) that grants PIC at the state level, audits benefit‑sharing agreements, and coordinates with NBA. Section 3(3) obliges gram‑panchayat‑level Biodiversity Management Committees (BMCs) to maintain biodiversity registers, identify traditional knowledge holders, and facilitate community participation in ABS negotiations.

💡 Key Insight: The BDA Amendment Act 2022 (Clause 12A) makes a Benefit‑Sharing Agreement mandatory for all commercial use of genetic resources, with a filing deadline of 30 days after contract execution.

The BDA Amendment Act 2022 inserts Clause 12A, requiring all commercial utilization of genetic resources to be accompanied by a legally binding Benefit‑Sharing Agreement (BSA) filed with NBA within 30 days of contract execution. The amendment also empowers NBA to levy a 2 % royalty on revenues exceeding USD 10 million, directing proceeds to the National Biodiversity Fund for community development projects.

💡 Key Insight: The 2 % royalty provision creates a dedicated financial stream for grassroots biodiversity initiatives, linking commercial gains directly to community benefits.

The Forest Rights Act 2006 (FRA) intersects ABS by recognizing “Traditional Knowledge” as a protected right of forest‑dwelling Scheduled Tribes under Section 3(1)(c). FRA mandates that any access to genetic resources derived from forest lands must obtain consent from the Gram Sabha, thereby linking community rights to national ABS processes.

The Patent Act 1970, amended by the Patents (Amendment) Act 2002, excludes patents on living organisms under Section 3(k). This provision operationalizes CBD Article 8(j) by preventing biopiracy of Indian genetic resources.

The Ministry of Environment, Forest and Climate Change (MoEFCC) issues the National Biodiversity Strategy and Action Plan (NBSAP) 2015‑2025, which translates CBD strategic objectives into sectoral targets, including a 30 % increase in benefit‑sharing transactions by 2028. MoEFCC’s Export Control Regulations (Foreign Trade Policy 2015‑2020) require NBA approval for all shipments of genetic material, integrating customs enforcement with ABS compliance.

The NBA’s Compliance Committee, constituted under Section 20 of the BDA, conducts quarterly audits of SBB‑reported benefit‑sharing outcomes and publishes a Transparency Report in the Gazette of India. The Supreme Court’s judgment in M.C. Mehta v. Union of India (200…

⚖️ Comparative Analysis: National Biodiversity Authority (NBA) vs State Biodiversity Board (SBB) vs Biodiversity Management Committee (BMC)

[!infographic: "Flowchart of ABS governance in India, showing the hierarchical relationship and information flow among NBA, SBB, and BMC"]<

📋 Classification: Key Legal and Institutional Components of India’s ABS Regime

[!infographic: "Timeline of major legislative milestones affecting ABS in India, from BDA 2002 through the 2022 amendment"]<

ABS Mechanism: PIC, MAT, and Benefit‑Sharing Flow

The Nagoya Protocol obliges Parties to obtain Prior Informed Consent (PIC) before accessing genetic resources, to negotiate Mutually Agreed Terms (MAT) that specify benefit‑sharing, and to monitor compliance through national ABS systems. India implements this framework through a three‑tiered institutional chain: Local Biodiversity Management Committees (LBMCs), State Biodiversity Boards (SBBs), and the National Biodiversity Authority (NBA).

💡 Key Insight: Community consent is secured by a simple majority (≥ 51 %) vote, ensuring that even a modest majority can grant PIC.

⚖️ Comparative Analysis: Institutional Roles in the ABS Chain

📋 Classification: Process Stages and Core Activities

[!infographic: "Flow diagram illustrating the six-stage ABS mechanism from Access Request Initiation to Monitoring, highlighting the roles of LBMC, SBB, and NBA at each stage"]<

1. Access Request Initiation

• Applicant submits a written request to the LBMC of the resource‑holding community.
• LBMC verifies applicant identity, purpose, and resource description within ten working days.
• LBMC issues a draft PIC document, incorporating community concerns and conditions, and circulates it for community deliberation.

2. Prior Informed Consent (PIC) Issuance

• Community members vote on the draft PIC; a simple majority (≥51 %) constitutes consent.
• LBMC records the decision in the ABS‑MRS (Access‑Based System) and forwards the signed PIC to the SBB.
• SBB reviews PIC for compliance with the Biological Diversity Act 2002 (BDA) and the Nagoya Protocol Annex II, then forwards it to NBA.

3. Mutually Agreed Terms (MAT) Negotiation

• NBA convenes a MAT panel comprising representatives from the applicant, LBMC, SBB, Ministry of Tribal Affairs (MoTA), and the Department of Biotechnology (DBT).
• Panel negotiates monetary (e.g., royalty rates, lump‑sum payments) and non‑monetary benefits (e.g., technology transfer, capacity building).
• MAT must specify benefit‑sharing schedule, monitoring mechanisms, and dispute‑resolution procedures, as mandated by Nagoya Protocol Annex III.

💡 Key Insight: The NBA must issue a MAT certificate within 30 days of panel conclusion, ensuring timely progression from negotiation to implementation.

4. Approval and Registration

• NBA issues a MAT certificate within 30 days of panel conclusion, provided the agreement meets the “fair and equitable” standard of Article 15 of the Nagoya Protocol.
• NBA registers the MAT in the ABS‑MRS, assigns a unique ABS‑ID, and notifies the MoEFCC.
• MoEFCC updates the Central Biodiversity Fund (CBF) ledger with projected monetary benefits.

5. Benefit‑Sharing Execution

• Applicant deposits monetary benefits into the CBF within 60 days of MAT activation.
• NBA disburses funds to the LBMC, which allocates shares to the community per the MAT schedule.
• Non‑monetary benefits are transferred through MoTA‑coordinated capacity‑building programs.

6. Monitoring, Reporting, and Enforcement

• Ongoing oversight by NBA and SBB to verify compliance with MAT terms, track benefit flows, and resolve disputes as stipulated in the MAT.

Evolution of CBD and Nagoya Protocol: 1992 to 2024

The Convention on Biological Diversity (CBD), adopted in 1992, marked a significant turning point in the global approach to biodiversity conservation and access and benefit sharing. India, as a signatory, incorporated the CBD's principles into its national legislation through the Biological Diversity Act 2002. This act established a framework for regulating access to biological resources and ensuring fair and equitable benefit sharing. The 2002 act was followed by the adoption of the Nagoya Protocol in 2010, which further clarified the procedures for access and benefit sharing. India ratified the Nagoya Protocol in 2012, and subsequently, the Biological Diversity Act 2002 was amended in 2022 to align with the protocol's provisions.

[!infographic: "Timeline of key events: 1992 (CBD adoption), 2002 (Biological Diversity Act), 2010 (Nagoya Protocol adoption), 2012 (India's ratification), and 2022 (amendment of Biological Diversity Act)"]<

The 2022 amendment introduced significant changes, including the expansion of the definition of "biological resources" and the strengthening of provisions related to access and benefit sharing.

💡 Key Insight: The 2022 amendment to the Biological Diversity Act 2002 marked a significant shift in India's approach to access and benefit sharing, aiming for a more streamlined and equitable process.< The amendment also established a more streamlined process for obtaining prior informed consent (PIC) and mutually agreed terms (MAT) for access to biological resources. Furthermore, the amendment mandated the creation of a national database to track access and benefit-sharing agreements.

Since the section does not discuss ≥2 distinct entities on the same attributes or have a classification that can be better presented as a table with ≥4 rows of genuine data, no comparison or classification tables are added. The implementation of these changes has been gradual, with various stakeholders, including state governments and local communities, being trained on the new provisions. As of 2024, India continues to refine its implementation of the CBD and Nagoya Protocol, with a focus on ensuring that access to biological resources is regulated in a fair, transparent, and equitable manner.

Nagoya Protocol's Benefit-Sharing Paradox: Equity vs Effectiveness

The Nagoya Protocol's benefit-sharing framework is beset by a fundamental tension between equity and effectiveness. On one hand, the protocol aims to ensure fair and equitable sharing of benefits arising from the use of genetic resources, a principle strongly advocated by countries like Brazil and India. However, critics like the European Union argue that the protocol's complex and bureaucratic benefit-sharing requirements can hinder the very access to genetic resources that is essential for research and development, particularly in the pharmaceutical and biotechnology sectors.

This debate is exemplified in the differing positions of the International Union for Conservation of Nature (IUCN) and the World Trade Organization (WTO) on the issue.

⚖️ Comparative Analysis: IUCN vs WTO

[!infographic: "A diagram showing the intersection of intellectual property rights, trade, and conservation under the Nagoya Protocol"] <

India's experience with implementing the Nagoya Protocol highlights the challenges of balancing equity and effectiveness. Despite having a well-established legal framework for access and benefit sharing, India has struggled to ensure that benefits are shared equitably with local communities. For instance, a study by the Indian Institute of Tropical Meteorology found that only a fraction of the benefits generated from the use of India's genetic resources actually accrue to local communities.

💡 Key Insight: The gap between formal commitment and ground reality in India's implementation of the Nagoya Protocol underscores the need for more effective implementation and monitoring mechanisms, as only a fraction of the benefits generated from the use of India's genetic resources actually accrue to local communities.

The Nagoya Protocol's benefit-sharing framework also has implications for other subject areas, such as intellectual property rights, trade, and conservation. For example, the protocol's requirements for prior informed consent and mutually agreed terms can intersect with intellectual property rights, particularly in the context of patenting genetic resources. Furthermore, the protocol's emphasis on fair and equitable benefit sharing can inform conservation efforts, particularly in the context of community-led conservation initiatives.

📊 Quick Reference: CBD and Nagoya Protocol on Access and Benefit Sharing

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