Introduction to the Nagoya Protocol: A Masterpiece in Creative Ambiguity or a Worstpiece in Ambiguous Creativity?

CLE presented on February 17, 2015 by Dr. Won Seog Park, S.J.D., Professor of Law, Chung-Ang University
Summary prepared by Jonathan M. Lloyd, WSBA IPS CLE Chair, 2014-15

 

Pursuant to the WSBA International Practice Section’s relationship with the University of Washington School of Law, UW Visiting Scholar Dr. Won Seog Park gave an informative presentation on the 2010 Nagoya Protocolon Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (“Protocol”).  The Protocol is a supplement to the 1992 Convention on Biological Diversity, and was intended to establish more predictable and legally certain conditions for access to genetic resources, and to set up a legal framework for users of genetic resources to share the benefits of use with the providers of those resources.  It has been ratified by 59 Parties, including the European Union.

Dr. Park provided detailed insight on the meaning and interpretation of the Protocol, based on his participation in the negotiation of the Principal on behalf of the Republic of Korea.  Most notably, he explained that the adoption and subsequent broad acceptance of the Protocol were possible only because it included deliberately ambiguous language in several key provisions that accommodated the competing proposals of the provider and user countries.

Many of the key area of ambiguity in the Protocol relate to the scope of its application, including whether it applies to traditional knowledge associated with genetic resources held by Indigenous and Local Communities (“ILC”), the inclusion of certain derivatives developed through the “utilization” of genetic resources, and the temporal and geographical scope of the Protocol, including whether its application is triggered by a user country’s initial access to the genetic resource, or its actual utilization of that resource.

Dr. Park also discussed the Protocol’s ambiguous language regarding the need for the user of genetic resources to obtain the prior informed consent (“PIC”) of the country providing that resource, and whether a providing country that has not established a process for users to obtain PIC can be deemed to have consented to use of its genetic resources.

Finally, Dr. Park addressed several other features of the Protocol, including its provisions on benefit sharing through the establishment of mutually agreed terms (“MAT”) between providers and users, as well as compliance measures that states adopting the Protocol must enact, and the establishment of check points for monitoring utilization of genetic resources.

 

The preceding summary discusses certain key points discussed during the CLE presentation, all of which were outlined in greater detail in the accompanying written materials.  This summary is a publication of the WSBA International Practice Section, and is posted with the approval of the speaker and the WSBA International Practice Section executive committee.  It is designed to inform members of the WSBA International Practice Section of recent legal developments, and may not be used to claim CLE credit.  This summary is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations. If you have specific questions about this topic, please feel free to contact Dr. Park by email at wspark66@cau.ac.kr.

 

For the original announcement of this CLE, please visit HERE.