The Nagoya Protocol has two main objectives: first it regulates access to genetic resources, second it regulates benefit-sharing associated with the exploitation of such resources. At a more general level, it creates greater legal certainty for users and providers of genetic resources. Not least, it safeguards the interests of indigenous and local communities in poor countries.
The Protocol states that genetic resources are subject to the sovereign rights of states, and thus imposes certain limits on the access to such resources. This means, among others, that informed consent or approval and involvement must be procured from the indigenous and local communities when seeking access to genetic resources. It also states that benefits – including monetary benefits – that are achieved by exploiting genetic resources must be shared in a fair and equitable way with indigenous and local communities (see Article 5). Such sharing shall be upon mutually agreed terms. The Protocol also ensures that the rights of indigenous and local communities can be enforced when the knowledge is exploited in other states (see Article 16).
The Protocol also includes dedicated articles on access to traditional knowledge. Pursuant to Article 7, the parties must take measures, as appropriate, with the aim of ensuring that traditional knowledge associated with genetic resources that is held by indigenous and local communities within the territory of a party is accessed with the informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established.
Norway ratified the Protocol in 2011. The Protocol will enter into force once it has been ratified by 50 states. Until such time, supplementary national legislation will be required for it to be binding in individual cases.
This article has been translated from Norwegian by Cristina Pulido Ulvang, Akasie språktjenester AS.