〈日本知財学会誌〉Vol. 9 No. 1― 2012 : 56 66【Contributed Papers】-

The Negotiating History of the Nagoya
Protocol on ABS: Perspective from JapanRyo Kohsaka (Kanazawa University, Graduate School of Human and Socio-Environmental
Studies, Associate Professor)【Abstract】 The adoption of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing ofBenefits Arising from their Utilization to the Convention on Biological Diversity was intensely negotiated during thetenth meeting of the Conference of Parties to the Convention on Biological Diversity (COP10). The agreement of socalled “Nagoya Protocol on Access and Benefit-Sharing” is an important milestone for international environmental law
and the Convention on Biological Diversity. This paper reviews the history of the negotiations of the Nagoya Protocol
and considers the balance between the sovereign rights of states over their natural resources and the public benefits ofthe products derived from these resources. Current discussions on benefit-sharing of genetic resources andintellectual property rights under the CBD and other relevant international fora are examined as part of this discussion.
【KEYWORD】 Convention on Biological Diversity

Genetic Resources

Access and Benefit-Sharing

Intellectual Property Rights【Date of receipt】 2011.3.22

1.

【Date of approval】 2012.4.13

cluding traditional knowledge.

Initial Negotiations

Prior to the CBD, there was no international mechanism to share the benefits arising from developing newTen years after the United Nations Conference on

products or patent with the provider of such resources,

Environment and Development (UNCED) in Rio de Ja-

even cases utilizing genetic resources or traditional

neiro, the negotiation of an international regime on ac-

knowledge of local communities.

cess and benefit-sharing (ABS) was launched at thetries considered this was not equitable treatment andDeveloping coun-

World Summit on Sustainable Development in Septem-

initiated to argue for the fair and equitable sharing ofber 2002. From then, it took almost ten years for the

benefits and claimed to change the rules of intellectual

negotiation of an international regime on ABS to beproperties, especially those related to traditional

agreed, a significant milestone for the Convention on

knowledge. Intellectual property rights can be direct-

Biological Diversity (CBD).

During those years, ac-ly affected by the drafting of ABS contracts, a neces-cess and benefit-sharing of genetic resources rose tosary element under the objectives of the CBD, and canbe an intensively discussed topic, with discussions

be an incentive for the utilizing Party to obtain priorcovering a range of issues relating to biotechnology, in-informed consent1.

ternational politics, and intellectual property rights, in-veloping countries were concerned about the limita-

56

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In particular, biodiversity-rich de-© 2012IPAJ

All rights reserved.

This paper was duly reviewed and accepted by the anonymous referees who wereappointed by the IPAJ’s editorial committee.

The Negotiating History of the Nagoya Protocol on ABS: Perspective from Japan

tions̶even under existing frameworks of the CBD̶It was the origin of a framework that is commonly re-to their rights in the fair and equitable sharing offerred to as the International Regime on ABS.

benefits arising from the development of products re-quested by the Johannesburg Plan of Implementation,

lating to their resources and traditional knowledge.

Parties were instructed to negotiate an international

As re-In 2002, at the sixth Conference of the Parties to theregime to promote and safeguard the fair and equitable

CBD (COP 6), a voluntary guideline was agreed based

sharing of the benefits arising out of the utilization of

on a draft submitted by the Swiss government.

Thisgenetic resources within the existing frameworks of

was named “Bonn Guidelines on Access to Genetic

the CBD4. A direct result of these negotiations is that

Resources and Fair and Equitable Sharing of the Bene-

Parties decided to re-consider this issue under a Work-fits Arising out of their Utilization (hereafter called theing Group on ABS at the seventh meeting of the Con-

Bonn Guidelines).”

The purpose of the Bonn Guide-

ference of the Parties (COP 7) to the CBD in 2004.

lines was to support Parties and stakeholders in the

The Working Group, dubbed “Ad-Hoc” because it wasdrafting of ABS contracts, especially in relation to ob-

not permanently established, but set with a specific2taining prior informed consent (PIC) .

Many develop-

mandate and time-frame for providing the decision

ing countries and some NGOs demanded a legally(text) to the Conference of the Parties for adoption.

binding instrument, which oblige state Parties to im-

Following COP 7, at COP 8 in 2006, Parties agreed toplement fair and equitable sharing of the benefits aris-

complete its work at the earliest possible time, prefer-ing out of the use of genetic resources, but a voluntary

ably before the tenth meeting of the Conference of theset of guidelines was all that was feasible at the time.

Parties (COP 10).

However, the adoption of the Bonn Guidelines served

The negotiation of an international regime on ABS

as a platform for further advancements for the estab-began at the third meeting of the Working Group on

lishment of an International Regime on ABS. In par-ABS (known as WG-ABS 3) in 2005.

ticular, the practical nature of the Bonn Guidelines

ning, the key point of the discussion was whether ormade it instrumental in further discussions towards

not to make a legally binding document, that is, a Pro-In the begin-

the development of the Nagoya Protocol ; in fact, alltocol under the CBD. However, due to the wide gap

main characteristics remained in the Nagoya Proto-

between developing and developed countries, whichcol̶with a few changes, such as to set checkpoints.

included issues such as intellectual property rights,

Furthermore, Parties could not agree on whether there

Parties could not reach consensus on building an inter-should be obligations to disclose the country of origin

national regime.

when applying for patents.

confrontation between the two sides, extending beyond

In the Bonn Guidelines,

the agreed texts stated that individual countries should

From then, there had been a fierce

the period of discussion.

Developing countries want-take measures to encourage the disclosure of the coun-ed to create a stricter framework for users of genetic

try of origin for both the genetic resources and tradi-

resources with the mandatory provision on sharing

tional knowledge.

benefits to the provider of such resources and restric-

To further their cause, developing countries̶being

tions on application of patent and so on. On the otherdissatisfied with the results particularly related to thehand developed countries wanted to avoid such restric-

disclosure of country of origin3̶formed an alliance totions because restrictions discourage the development

establish an international binding regime to effectively

of industries and academic research, resulting in de-protect the fair and equitable sharing of the benefit

creased cases of benefits sharing arising out of utiliza-

arising from the utilization of genetic resources at thetion of such resources.

Johannesburg summit, which was held later in 2002.

no substantive advancements being made on formulat-

The slow progress resulted in57

〈日本知財学会誌〉 Vol.9 No.1― 2012

ing an international regime on ABS until COP 9 in

Co-Chairs developed the Co-Chairs Proposal consists

Bonn, in 2008.

of 31 articles as draft texts of ABS Protocol and distrib-

In Bonn, Parties finally identified theelements of an international regime on ABS, includ-

uted them to each Party to the Convention.

In theing : objective, scope, fair and equitable benefit-shar-

beginning of the WG-ABS 9, Parties agreed to negoti-ing, access to genetic resources, compliance, tradition-

ate with the Co-Chairs Proposal, which should expec-

al knowledge associated with genetic resources,

tantly have resulted in significant progress in the dis-

capacity, and nature of the document and decided tocussion.

hold the Working Group on ABS three times prior to

extremely hard road as a result of two reasons : first,

the COP10.

the Co-Chairs Proposal was rather ambiguous ; sec-

However, the negotiation still walked an

Through negotiations of the Working Group (WG-

ond, the arguments̶based on the various issues ofABS), Parties have developed the text of an interna-

the bracketed items̶were insufficiently understoodtional regime on ABS.

by all Parties.

However, the negotiations

As a result, there was intense confron-

At thetation between developed and developing countries re-first negotiation session, which was the seventh meet-garding numerous issues, including benefit sharing, ac-were a reiteration of progress and retrogress.

ing of the Ad Hoc Open-ended Working Group on ABS

cess to genetic resources, compliance, and disclosure(WG-ABS 7) in Paris, Parties developed a draft textof origin.

with numerous square brackets which means a lack ofcontact groups in the WG-ABS 9, Party demands esca-

Moreover, predominantly, in discussions ofagreement, and it was to be narrowed down or agreed

lated, taking a hard-line stance and strenuously insist-

upon at a later stage.

ed on reflecting their own country’s claims.

There-At the end of the second session of the WG-ABS 8

fore, the discussion was suspended and Parties couldin Montreal there were still over 3,000 brackets as nu-

not enter into substantial negotiation using the Co-

merous issues and items were under intense debate.

Chairs Proposal.

At this moment, there was only one negotiating session left before the COP 10, in October 2010.

Fur-

To finalize the negotiating text, Parties decided toresume the meeting of the Working Group at the end

thermore, the group was required to circulate the textof June.

of the Protocol to the Parties six months before theGroup (resumed WG-ABS9) was held in Montreal,

COP as it required by Article 28, paragraph 3 of theCanada, in July 2010.

Convention.

The resumed ninth meeting of the Working

Majority of participants considered thatAt the resumed WG-ABS9, the Co-Chairs proposed

it was substantially impossible to adopt any type ofto convene an Interregional Negotiating Group (ING)

text, far from the Protocol on ABS, at the COP 10 due

which consists of no more than five representatives

to time limitations and deadlock discussions.

from each of the United Nations regional groups (Afri-2.

The accelerated negotiations on
the ABS Protocol

ca, Asia, Central and Eastern European Group (CEE),
the Group of Latin America and Caribbean Countries(GRULAC), and the Western European and Others
Group (WEOG)) and two representatives each from in-

At the ninth meeting of the Ad Hoc Open-ended

digenous and local communities, civil society, industry

Working Group on Access and Benefit-Sharing (WG-

and public research groups, as well as the representa-

ABS 9) in Cali, Colombia, in March 2010, the Co-

tives of the President of the Conference of the Parties

Chairs of the Working Group summarized a large

and the incoming President of the Conference of theamount of draft decisions that still included over 3,000

Parties, namely German and Japan.

brackets in an attempt to break the deadlock.
58

The

At the ING meeting, representatives considered theThe Negotiating History of the Nagoya Protocol on ABS: Perspective from Japan

articles of the draft Protocol on ABS one by one frompoints).

the first article.

summarized in the table below :In addition to each consideration,

The divided opinions at the meeting arethey established contact groups to intensely discuss

In response, Parties agreed to hold the ING meetingthe contentious key issues ensuring various views

again just before the COP 10 from 13 to 16 October, towere included.

coordinate views on continuingly contentious is-Groups reached agreement behindclosed doors late into the midnight every day.

sues.

From 13 to 15 October, the venue of the ING

At the resumed WG-ABS 9 there seemed to be sig-

meeting was moved to Nagoya and fierce negotiations

nificant progress compared with previous negotia-

took place back-to-back with the fifth meeting of thetions.

However, there were still sharply divided opin-

Conference of the Parties to the Convention on Biolog-

ions between developed and developing countries

ical Diversity serving as the Meeting of the Parties toregarding derivatives, retroactive application, benefit-

the Cartagena Protocol on Biosafety (COP-MOP 5).

sharing, and compliance.

As a result, there were still

At the ING meeting, as preparatory negotiations for

To facilitate their work, Parties

the COP 10, Party discussions narrowed down the con-decided to resume the ING meeting as far as possible

tentious issues as follows : derivatives, pathogen,until the COP 10 in order to reach an agreement.

compliance, and institutional arrangements.

many brackets left.

At earli-

In mid-September of 2010, Parties met in Montreal,er stages, the process of narrowing the issues met dif-

Canada again and intensively discussed pending is-ficulties with a few Parties rejecting suggested text bysues.

At the meeting, Parties focused on the key con-

Co-Chairs that their views were not properly reflected

tentious issues of both developed and developing coun-or preempted.

tries, which had been written down in the draft texts ofnarrowing process.

opinions, and tried to integrate the various draft texts.

dividual contentious issues (this process continued

Repeated ING meetings facilitated theGroups were formed for these in-

Due to the result of their extended hours of negotia-

during the COP 10 period).

tions, they successfully reached a consensus on almost

were not solved then the term were accommodated

all draft texts.

under the key issues often with brackets.

Nevertheless, the negotiations

If certain differences
In addition,

reached no agreement by the deadline due to thetime limitation helped Parties to focus under limited

sharply divided opinions on issues such as derivatives,

number of issues.

scope (including retroactive application), and compli-

ress.

ance (including disclosure of origin and check-ments” scarcely progressed and the procedures of theTable 1

There were issues with slow prog-

The issue related to “institutional arrange-

Issues with divided opinions on ABS prior to the COP10
Opinions in favor of Users of Genetic Resources(mainly from Developed Countries)

Opinion in favor of Providers of Genetic Resource(mainly from Developing Countries)

Retroactive
application

Retroactive application is against the principle ofinternational law (such as Article 28 of Vienna
Convention on the Law of Treaties).

It should be applied prior to the Nagoya Protocoland even prior to the Convention.

Scope/
Derivatives

The scope should be decided by the individual
MAT.

The Nagoya Protocol should include derivatives
and products.

Disclosure oforiginThe judgment of intellectual property rights and
ABS are two different issues. Issues related todisclosure of origin for patents are beyond the
mandate of the CBD.

To prevent biopiracy, misappropriation and otherillegal activities, disclosure of origins arenecessary measures when applying for patents.

Checkpoints

Procedures should be left to national regulations.

A list of checkpoints are necessary (such asagencies related to trades, patent, research
grants).

Issues59

〈日本知財学会誌〉 Vol.9 No.1― 2012

Protocol were unclear.

3. Special consideration : Parties considered wheth-

On 16 October, just before the COP 10, the resumed

er or not to make exceptions to the rules for the

WG-ABS 9 was convened and Parties decided to adopt

following cases, noncommercial use of genetic

the draft Protocol including pending issues as a final

resources (such as academic research) and emer-

report and submitted it for the consideration of Parties

gencies, including public hygiene.

at the COP 10.

4. Traditional knowledge : Parties considered

In addition to the Working Group and the ING, thewhether or not to specify in the Protocol that

Government of Japan sent delegations to Africa, Eu-

traditional knowledge was individually or specifi-rope and Latin America and established formal and in-cally owned, due to the diverse domestic situa-

formal negotiating channels prior to the COP 10.

tions in each country.

In

addition to bilateral discussions, informal discussions

5. Compliance : Parties considered whether or not

were conducted at the Bureau meetings of the CBD

it should be obligatory to : disclose the origin ofand meetings facilitated by the Secretariat.

These

resources and information at the application ofchannels have been instrumental in exchanging

intellectually property rights, especially patent

information.

application ; set checkpoints to monitor the us-

3.

Negotiations on the draft Protocol on ABS at the COP10

age of genetic resources ; and list the organizations of each checkpoint concretely.
However, these issues were so cross-cuttingly related to the entire Protocol that there was little prog-

At the COP10, from 18 to 29 October, Parties contin-

ress even if Parties continued separate negotiations on

ued negotiations on the draft Protocol on ABS day andthem.

night throughout the week.

In fact, there was little progress on these is-Parties established ansues in discussions after the first week of COP 10. In

open-ended Informal Consultation Group (ICG) to fi-

the days and nights of the following weekend andnalize the draft Protocol, which consisted of five repre-

week, Parties divided into contact groups and worked

sentatives from each region in the previous style of thehard to coordinate views and reported this progress toInterregional Negotiating Group (ING), to facilitate ne-

the Plenary in order to whittle the final agreement

gotiations on the draft Protocol.

down to an acceptable text.

With a streamlined

number of representatives, the ICG focused to discuss
the following issues ;Then in the Plenary on

26 October, Mr. Ryu Matsumoto, Minister of the Environment of Japan as well as the President of the COP

1. Derivatives : Under this issue, Parties discussed

10, proposed that if there was no agreement on thewhether or not to specify the subject of benefit

draft Protocol by 24 o’clock on 28 October, he men-sharing.

tioned that he would present a Draft President’s text

The definition of the term derivativeis defined in Article 2 of the Protocol as “derivative means a naturally occurring biochemical

At the final stage of the negotiations with three days

compound resulting from the genetic expression

left, Mr. Matsumoto as the Chairman of the COP10 felt

or metabolism of biological or genetic resources,that he was under pressure because neither the overall

even if it does not contain functional units of he-strategic plan and goal of the Convention after 2010

redity.”(so-called post-2010) nor the ABS regime were not

2. Scope : Parties considered the scope of applica-

60

on the Nagoya Protocol.

agreed5.

There were two major options explored ;tions and whether they should be retroactive ap-

one was to suggest a resumed meeting and roadmap

plied.

and the other was to present Draft President’s

The Negotiating History of the Nagoya Protocol on ABS: Perspective from Japantext.

The latter was an option with higher risk andmade explicit. The Draft President’s text was a full ofhigher returns and Mr. Matsumoto chose to present

compromising language so that it was acceptable to

the Draft President’s text.

both sides.

Mr. Matsumoto communi-

As a consequence, the text included pro-cated with the Secretariat to the Convention and asked

cedures still to be clarified and negotiated when thefor an initial text.

Protocol is ratified and comes into force.

The text was then drafted by twolegal experts from the Secretariat in close consultation

In the afternoon on the last day of the COP 10, in anwith the Japanese government, particularly with Direc-

informal meeting consisting of representatives of each

tor from the Ministry of Foreign Affairs of Japanregion, the chair declared the acceptance of the Draft(MOFA).

The language of the text was carefully cho-President’s text on the Nagoya Protocol with the con-sen based on previous discussions and disagreements

dition that minor amendments can be put forth by de-by legal experts to avoid further intense debates. The

veloping countries. (For example, a word “genetic”

experts informally consulted a range of expertise, in-

was replaced by “biological” by the request of the Bra-cluding officers in international organizations.

zil.) At last, Parties had come to an agreement before

Thenthe text was discussed with other Ministers and par-dawn on 30 October.

ticipants of the high-level segments.

Although some still opposed it,

The process

the Draft President’s text was adopted by consensus

was open to all delegates because the Mr. Matsumoto

under the agreed upon title of the Nagoya Protocol on

as a Chairman wanted to avoid the failure of the COP

Access and Benefit-Sharing.

15 of the UNFCCC (United Nations Framework Convention on Climate Change).

The Draft President’s

4.

text at the COP 15 was criticized for being created be-

Development of key issues of the
Nagoya Protocol on ABS

hind closed doors with limited number of participants
and inputs.

Comments were received from African

The key issues of the Nagoya Protocol are deriva-

groups, India and other delegations commented on thetives, scope, benefit-sharing, access, and compliance.

text but the text remained almost unchanged.

There are brief comments on main discussion points

Parallel to the Draft President’s text, the ICG con-

below ;

tinued their negotiations but was still no agreement on
the draft Protocol at midnight on 28 October, a night
before the final day of the meeting.

(1)

Derivatives

The time was

The Nagoya Protocol defined in Article 2 of the Pro-

deadline to propose the alternative way, the Draft

tocol that the term “derivatives” as “a naturally occur-

President’s text.

Mr. Matsumoto, as a Chairman,

ring biochemical compound resulting from the genetic

thus proposed the draft text on Nagoya Protocol in theexpression or metabolism of biological or genetic re-morning on Friday 29 October, on the final day.

sources, even if it does not contain functional units ofWith

the Draft President’s text, Mr. Matsumoto continuous-

heredity.”

Accordingly, as the definition can be inter-ly persuaded representatives of each region in informal

preted to refer to a natural compound made from or-

negotiations to adopt it. In persuading Parties, includ-

ganisms, then a compound synthesized artificially is

ing developing countries, Japan committed a multilat-

not subject to the derivatives part of the Protocol. As

eral fund with a concrete figure, which later became

an example, shikimic acid extracted from star anise,

the global multilateral benefit-sharing mecha-

which is the raw material of Tamiflu, a medicine for flu

nism.

treatment, is a “derivative,” while a compound synthe-

For developed countries, issues related to ret-roactive application or the listing of checkpoints weresized artificially with reference to shikimic acid is not aremoved and the applicability of derivatives was not“derivative” and will not be regarded as an object of61

〈日本知財学会誌〉 Vol.9 No.1― 2012

the Protocol.

Provided that the utilization of genetic

the Convention.

In sum, it was agreed that a mecha-

resources includes an “application of biotechnology” innism called a “global multilateral benefit-sharing

Article 2 of the Protocol, it is possible to interpret thatmechanism” in Article 10 of the Protocol will be con-the benefits arising out of the utilization of derivatives

sidered for promoting benefit sharing arising from theas an object of the Protocol. The other key term “bio-utilization of genetic resources of unknown origin.

technology” is defined in Article 2 of the Convention
and means “any technological application that uses bio-(3)

Benefit-Sharing

logical systems, living organisms, or derivatives there-

In accordance with Article 5 of the Protocol, benefit-of, to make or modify products or processes for specificsharing is defined as follows : “benefits arising fromuse.” However, the scope of biotechnology is not ex-

the utilization of genetic resources as well as subse-

plicit in the Nagoya Protocol.

In case of the Cartage-quent applications and commercialization shall bena Protocol, the scope of biotechnology is clearer, withshared in a fair and equitable way with the Party pro-limitation to “modern” biotechnology in the definition

viding such resources that is the country of origin ofof “living modified organism”̶defined as “any livingsuch resources or a Party that has acquired the genetic

organism that possesses a novel combination of genet-

resources.” Building on this, the objects of benefit-

ic material obtained through the use of modern bio-

sharing are described in Article 2 of the Protocol as thetechnology” in the Article 3 of the Cartagena Protocol.

“research and development on the genetic and/or biochemical composition of genetic resources” and in Ar-

(2)

Scope

ticle 5 as the “benefits arising from the utilization ofWith regard to the applicable scope of the Protocol,

genetic resources as well as subsequent applications

the discussion has focused on retroactive application ofand commercialization.”

the Protocol and it was a key component for develop-

tions of benefit-sharing shall be operated on a case-by-ing countries.

case basis.

The African group insisted on this as

As such, the actual condi-

Furthermore, in regards to the procedure

moral obligations that developed countries, in particu-

of sharing̶a contract between those concerned̶itlar European countries, should compensate for genetic

should be set under mutually agreed terms, or MAT6.

resources which deprived in colonial era.

They tried

to apply benefit-sharing obligation prior to the Convention on Biological Diversity came into effect, namely in
1993.

(4)

AccessWith regard to Access, this is mainly advocated by

However, the language of retroactive applica-

developed countries because currently there are con-tion was removed from the text, as no previous exam-siderable amount of ambiguity for the ABS legislation

ples were found in past environmental treaties.

or regulation of developing countries.

In

Consequently,

the text of the Chair’s proposal that was adopted, theit disturbs access to genetic resources which each Par-

reference to retroactive application was not referredty shall endeavor to facilitate access to genetic re-to.

sources and not to impose restrictions that actually run

Instead, a fund was proposed as a compromise̶

in line with the African group’s proposal̶that will becounter to the objectives of the Convention.

implemented at a future date, but that potentially in-sult of a compromise between both sides, Article 6 ofcluded benefit sharing derived from the utilization of

the Nagoya Protocol determined that “access to genet-

genetic resources in past cases.

The beneficiaries of

ic resources for their utilization shall be subject to thethe funds, which include capacity building and otherprior informed consent (PIC) of the Party providing

measures, will most probably be countries where ge-such resources” but on the other hand the Protocol

netic resources were accessed and obtained prior to

obliges that Party requiring PIC shall take the neces-62

As a re-The Negotiating History of the Nagoya Protocol on ABS: Perspective from Japansary legislative, administrative or policy measures incess to genetic resources and equitable benefit-sharing

order to “provide for legal certainty, clarity and trans-arrangements and disclosure requirements in patentparency of their domestic access and benefit-sharing

applications.

legislation or regulatory requirements.”

ernmental Committee (IGC) and is continuously dis-

The WIPO has established Inter-Gov-

cussing those issues from their perspectives.
(5)

Compliance

Under

the WTO, the Trade-Related Aspects of Intellectual

In accordance with Article 15 of the Protocol, each

Property Rights (TRIPS) Council is looking at the rela-

Party is obliged to take “appropriate, effective and pro-tionship between the TRIPS Agreement and the CBD.

portionate legislative, administrative or policy mea-

It is conducted in the context of a review of Article

sures to provide that genetic resources utilized within

27.3(b) of the TRIPS which deals with patentability or

its jurisdiction have been accessed in accordance with

non-patentability of plant and animal inventions, andprior informed consent (PIC) and that mutually agreed

the protection of plant varieties.

terms (MAT) have been established.” Consequently, indeveloping countries considers that they were always

accordance with Article 17, the Protocol obliges eachforced to compromise and little chance to reflect their

Party to take measures to designate checkpoints toopinions.

monitor the utilization of genetic resources whether athe economic fora.

user of genetic resources acquires PIC and establishes

is much easier to make one voice of developing coun-

Among those fora,

This is mainly a result of power politics in
But in the environmental fora, it

At the be-tries with criticizing developed countries based on var-ginning of the process of negotiations, there was a pro-ious international principles, such as common but dif-

posal to list concrete bodies as checkpoints, such as anferentiated responsibilities referred in the Rio

entities publishing research results relating to the uti-

Declaration adopted in 1992.

MAT with the provider in their countries.

lization of genetic resources, authorities providing reg-

The majority of the developed countries argue thatulatory or marketing approval of products and intellec-

the issues related to intellectual property should betual property examination or patent and plant variety

regulated with domestic laws and individual contracts

offices.

rather than disclosure requirements in patent applica-

Developing countries insisted on listing those Intel-

tions regarding origins of genetic resources and tradi-

lectual Property Rights (IPR) authorities in the Proto-

tional knowledge.

col as a checkpoint of monitoring the use of genetic re-cern that ABS regime, particularly new disclosuresources.

The United States expressed con-

They also demanded those IPR application

requirements may be inconsistent with, or may conflict

related to use of genetic resources without PIC andwith WIPO-administered treaties and WTO-adminis-

MAT shall not be approved.
requirement.”

This is called “disclosure

tered TRIPS Agreement7.

The disclosure require-

However, those specific listing and re-ments in patent applications are criticized from practi-

quirements were removed by the proposal made by thecal point of views that the process and cost will not be

COP10 President in the end.

realistic in implementing such process8.

The reason why devel-

oping countries insisted on limiting IPR is that they
were frustrated with the discussion at the World Intellectual Property

5.

Other international Processes

Organization (WIPO) and the World

Trade Organization (WTO).
Since 2001, the WIPO and the WTO discussed similar issues at their fora.

For example, the WIPO has

been discussing the intellectual property aspects of ac-

There are several other relevant international fora
on the ABS and intellectual property rights.

Thecharacteristics of the relevant international processes
are listed in the table.
63

〈日本知財学会誌〉 Vol.9 No.1― 2012

Table 2

Overview of International Fora on Access and Benefit-Sharing of Genetic Resources andIntellectual Property Rights

Convention and Institution

Purposes

Convention on Biological
Diversity (CBD)- Conservation of biological diversity- Sustainable use of its components- Fair and equitable sharing of the benefits
arising out of the utilization of genetic
resources(See Nagoya Protocol on ABS)

IssuesNagoya Protocol on ABS*
<not entered into force>- Fair and equitable sharing of the benefits
arising out of the utilization of genetic
resources- Contributing to the conservation of
biological diversity and the sustainable
use of its components- Benefit- sharing of derivatives ofgenetic resources- User country measures (Checkpoint,
disclosure requirement etc)
- Compliance mechanism of the Protocol(TBC)

WTO - TRIPS Agreement- Ensure adequate standards of intellectually property rights protection- Creating a multilateral register forwines and spirits- extending the higher level of protection
beyond wines and spirits (“GI extension”)-Review of Article 27.3(b) (Relationshipbetween the TRIPS and the CBD, and
the Protection of Traditional Knowledge)

FAO - International Treaty
on Plant Genetic
Resources for Food andAgriculture (ITPGR-FA)- Sustainable agriculture and food security- Conservation and sustainable use ofplant genetic resources for food andagriculture- Fair and equitable sharing of the benefits
arising out of use of plant genetic resources- Ensure harmonization with the CBD- Operation and management of Multilateral System (MLS) for ABS (currently
64 major crops)- Cooperation with Convention on Biological Diversity and other organizations

WIPO - Intergovernmental
Committee (IGC) andIntersessional Working
Group (IWG)- Reaching agreement on a text of aninternational legal instrument (or instruments) which will ensure the effective
protection of traditional knowledge (TK),
traditional cultural expressions (TCEs)/
folklore and genetic resources- Disclosure requirements in patentapplications that relate to genetic
resources and associated TK- Intellectual property aspects of ABS- Defensive protection of genetic
resources

WHO - Pandemic Influenza
Preparedness (PIP)
Framework- Sharing of H5N1 and other influenza
viruses with human pandemic potential- Access to vaccines and sharing of otherbenefits- Definition of “PIP biological materials”- Balance between intellectually property
rights and public health（as of 2012 February）Revised from Kohsaka and Honda (2009)9

The FAO International Treaty on Plant Genetic Re-

Agreed Terms at the CBD.

Having said this, because

sources for Food and Agriculture (ITPGR-FA) is in co-

the ITPGR-FA is at operational stage with benefit

operation with the CBD and languages of the goals aresharing and these will have implications on levels andsimilar with focus on conservation, sustainable use andratio at the bilateral negotiations under the CBD.

benefit sharing.
There are several differences in their characteristics
as well.

6.

Entry into force

The access to genetic resource is multi-lat-eral system (MLS) in the ITPGR-FA and bilateral in

In accordance with Article 33 of the Protocol, theThe scope of MLS is listed crops (35 foodNagoya Protocol “shall be open for signature by Parties

crops and 29 forages) in the Appendix I of the ITPGR-

to the Convention at the United Nations Headquarters

FA while CBD is generally on genetic resources. The

in New York, from 2 February 2011 to 1 February

procedure for the access is standardized as Standard

2012” and Article 34.1 says that “The Protocol shall

CBD.

Material Transfer Agreement at the ITPGR-FA while

enter into force on the ninetieth day after the date ofthese are negotiated or agreed bilaterally as Mutuallydeposit of the fiftieth instrument of ratification, accep-

64

The Negotiating History of the Nagoya Protocol on ABS: Perspective from Japantance, approval or accession by States or regional eco-building activities for developing countries and othernomic integration organizations that are Parties to therelevant bodies.

Convention.”ratify the Protocol is left to individual governments.

Obviously, the decision to sign andAs many developing countries supported a Protocol

Based on this principle, there are rooms for interna-

on ABS for many years, the Nagoya Protocol is sup-tional collaboration, if certain countries request sup-posed to enter into force at an early stage.

ports.

Japan asSuch efforts, for example, include the Japanthe host country of the COP 10̶in a position of both

Biodiversity Funds and new funds to the Global Envi-

user and provider country of genetic resources̶ronment Facility (GEF).

should meet the expectations of the Nagoya Protocol’s

approved to establish the “Nagoya Protocol Implemen-

early entry into force and continue to make efforts totation Fund” to help developing countries build their

Recently the GEF council

In line withcapacity to engage in both the ratification and imple-

this, the Government of Japan signed the Protocol inmentation of the Protocol. The Government of JapanMay 2011̶one of the first developed country to do so.

pledged its pioneer contribution of 1 billion Yen (about

In June 2011, 12 European Union member states

US$ 12.5 million).

take part in its decision making process.

joined, enhancing the number of Signatories.
There are challenges both domestically and internationally for Japan.

7.

Concluding remarks

First, Japan needs to set up its na-

tional regulations and institutions domestically.

Sec-

The decision by the Japanese government to pro-ond, Japan need to strategically collaborate with thepose the Draft President’s text was sudden and risky

developing countries for capacity buildings and setting

but a successful option for an agreement.

international momentum for the Nagoya Protocol tocessful partially because schedule for extension nor

It was suc-enter into force. The Parties have committed that “byresumed negotiations were not provided.

2015, the Nagoya Protocol on Access to Genetic Re-

pressure of having no further negotiations schedule,

sources and the Fair and Equitable Sharing of Benefits

delegations shared the sense of urgency to agree or to

By theArising from their Utilization is in force and operation-

compromise.

al, consistent with national legislation” under the post-

ICG but it was instrumental in having all the options

The agreement could not be met at the2010 Target10.

and disagreements on the table.

The Draft Presi-

Domestically, Japan will need to decide which gov-

dent’s text reflected the discussions and defined cer-ernmental body it will be designated to function as thetain concepts, such as in the case for the term deriva-

checkpoints domestically, which will include options totive, but left strategic rooms for individual contracts.

establish a new body or to designate an existing body.

The Nagoya Protocol does not require any drastic

As was the case for the Cartagena Protocol on Biosafe-changes in national legislation on IPR or existing prac-ty, Ministry of Environment in collaboration with othertices of using genetic resources at this stage.

relevant agencies is preparing the domestic setups. A

Nagoya Protocol is international treaty so it only binds

new organizational unit, Biodiversity Promotion OfficeState Parties, not private entities directly.

The

Nonethe-(Suishin Shitsu in Japanese) is set up within the Minis-

less users of genetic resources need to obey the laws

try of Environment in order to promote the domesticof the country in which they accessed the genetic re-process of the ABS.

sources.

The process has just started andfuture visions are undecided and currently under discussion.
Internationally, Japan committed to promote capacity

However, there are some general pitfalls re-main unsolved in the Nagoya Protocol through its negotiations.

Access to genetic resources for non-commercial researches, such as academic explorations,65

〈日本知財学会誌〉 Vol.9 No.1― 2012

are not exempted but in principle need to obtain PIC

countries are preparing to ratify or accept the Nagoya

and MAT from the provider of genetic resources.

Protocol and it will be sooner or later come into force.

Furthermore, this PIC and MAT rules of the Nagoya

It is time to consider how best to promote access toProtocol shall apply in case of the situation of immi-

genetic resources and traditional knowledge and con-nent emergencies that threaten or damage human, ani-

tribute the implementation of the Nagoya Protocol in

mal or plant health, such as pandemic influenza.

the future.

Dur-ing the negotiation, developing countries insisted ondeleting any consideration to the non-commercial research purpose access to genetic resources and emergency situations, but Japan and some developed countries has strongly opposed to remove it.

Then, thedraft President’s text has taken this consideration andfinally it has been approved by consensus at the end of
the COP10.
Since the COP10, the future vision of the Japanese
government is undecided.

An office is set up for theprocess but the domestic discussions have just started.
In addition to private entities, awareness raising andconsultations with the academic institutions and universities will be one of the major tasks.

It needs tobe made clear that scientific activities are no exceptions for Japanese scientists as well.
Internationally, it remains to be seen what kind of
projects will be implemented with the Nagoya Protocol
Implementation Fund under the GEF.

Based on pastbilateral collaborative relationships, Japanese government can potentially contribute to technological transfer and capacity buildings upon requests by other countries.

In doing so, it will be useful to analyze past-bilateral collaborations in the field (except for thosesubjected to Confidentiality Agreement).
Nearly a year has passed since the COP10 in 2010.
In the meantime, various related meetings have been
held under the CBD and the number of Signatories of
the Nagoya Protocol is steadily rising and the number
is above 60 (To date, Gabon ratified the Protocol on 11
November 2011).

66

As the number suggests, many

ACKNOWLEDGEMENT
The author would like to thank Mr. Yusuke Honda, who participated in several WGs on ABS and the COP10, for his comments on an early draft of this paper. Any error or omissions
remains entirely the author’s responsibility.
NOTE, REFERENCE
1 Report of the Panel of Experts on Access and Benefit
Sharing. UNEP/CBD/5/8 (November, 2 1999) para
145-155.
2 “Prior informed consent” means that permission from thecompetent national authority or authorities of the provider country is to be obtained prior to accessing genetic
resources, in accordance with national legislation. See
also the CBD website.
3 Chambers, W. Bradnee, 2003, “WSSD and an International Regime on Access and Benefit Sharing : Is a Protocol
the Appropriate Legal Instrument ?,” RECIEL, Vol. 12,
Iss. 3, pp. 310-320.
4 Plan of Implementation of the World Summit on Sustainable Development, para. 44(o), 2002.
5 Matsumoto, Ryu (2011) “The Backstage of Environmental Diplomacy : Truth revealed by the Minister” (Kankyo
Gaikou no Butaiura [in Japanese]) Nikkei BP.
6 “Mutually agreed terms” is an agreement reached between the provider of genetic resources and a user withrespect to the conditions of access to genetic resourcesin the provider country and the benefits to be shared between both parties, which may arise from the commercial
or other uses of these resources. See also the CBD
website.
7 WIPO (2005) Examination of Issues Relating to the Interrelation of Access to Genetic Resources and Disclosure
Requirements in Intellectual Property Rights Applications—Second Draft, WIPO/IP/GR/05/3 (12 May 2005),
para. 109
8 Kato, Hiroshi (2008) “Harmonization of Intellectual Property Rights System and Convention on Biological Diversity” (Seibutsutayouseijouyaku to Chizai no Chowa [in Japanese]) In Sumikura (ed.) “Policy of Intellectual Property
Rights and Managment” (Chitekizaisanseisaku to manejimento [in Japanese]) Hakutosya, 190-194.
9 Kohsaka, Ryo and Honda, Yusuke (2009) “Interlinkages
between Benefit-Sharing of Genetic Resources and Intellectual Property Rights under the Convention on Biological Diversity.” Journal of Intellectual Property Associationof Japan, Vol. 5 No. 4, pp. 3-13.
10 CBD COP10 decision X/2 Strategic Goal D Target 16.
UNEP/CBD/COP/DEC/X/2