Study to Identify Specific Cases of Genetic Resources and Traditional Knowledge Associated with Genetic Resources that Occur in Transboundary Situations or for Which it is Not Possible to Grant or Obtain Prior Informed Consent

Abstract

Article 10 of the Nagoya Protocol on Access and Benefit-sharing (“Global Multilateral Benefit-Sharing Mechanism”) calls for Parties to consider the need for, and modalities of, a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations, or for which it is not possible to grant or obtain prior informed consent. The 3rd meeting of the Conference of the Parties to the Convention on Biological Diversity serving as the meeting of the Parties to the Nagoya Protocol adopted decision NP-3/13 on Article 10, which requested the commissioning of a peer reviewed study to identify specific cases meeting the aforementioned criteria. This study is the response to that request and identifies three broad groups of cases.

The first group, genetic resources occurring in transboundary situations comprises three specific subgroups: (a) shared ecosystems and habitats/species distributed across national boundaries; (b) migratory species which transit through different jurisdictions; and (c) areas beyond national jurisdiction.

The second broad group involves genetic resources for which it is not possible to grant or obtain prior informed consent. This group also comprises three subgroups: (a) genetic resources of untraceable provenance in ex situ collections; (b) utilization of samples from large numbers of geographically diverse organisms; and (c) cases involving the use of “digital sequence information” (DSI).

The third broad group, traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent, can be further divided into three subgroups: (a) associated traditional knowledge held by IPLCs across national boundaries, (b) publicly available associated traditional knowledge, and (c) associated traditional knowledge of untraceable origin in ex situ collections.

Based on the research presented within, this study concludes that there may be specific cases that fall within the scope of Article 10, while also not undermining the bilateral approach upon which the Convention and Nagoya Protocol are founded.

Keywords: Nagoya Protocol, Convention on Biological Diversity, patents, genetic resources, traditional knowledge, indigenous peoples and local communities, synthetic biology, digital sequence information