The Interface between the Nagoya Protocol on ABS and the ITPGRFA at the International Level: Potential Issues for Consideration in Supporting Mutually Supportive Implementation at the National Level

FNI Report 1/2013. Lysaker, FNI, 2013, 59 p.

After countries agreeing to the Nagoya Protocol in 2010, the implementation process has started in parallel with the ratification process. Before Nagoya, two other treaties regulated access were already in place: the Convention on Biological Diversity and the International Treaty on Plant Genetic Resources for Food and Agriculture. As a contribution to clarify overlaps and possible areas of different rules, this study identifies the core articles in the NP relevance to the implementation of the ITPGRFA. This study also analysis the relevant concepts in the ITPGRFA to identify possible loopholes and grey zones between these three ABS regulations. There is a body of literature discussing the interpretation and implementation of the ITPGRFA, but there is still some disagreement on some of the core legal concepts under the treaty. This report explores the criteria for a plant genetic resources being mandatory included into the multilateral system for ABS. What is meant by ‘public domain’? How can countries decide on the matter of managing and controlling plant genetic resources? What is the relationship between the multilateral system and local and indigenous groups to plant genetic resources? All ABS systems and the attempt to make access happen and benefit sharing flow needs to hold an eye on how it will interact with IPRs. In this study a brief look is offered on the relationship between the two relevant IPRs in the plant sector, the patent system and plant breeders’ rights relate to the common pool of genetic resources in the multilateral system.