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On October 29, 2010 the Nagoya Protocol was adopted in Nagoya, Japan with the aim to establish an international, legally binding framework for the transparent and effective implementation of Access and Benefit Sharing (ABS) concept at regional, national, and local levels.³ It was a movement forward in cementing a new vocabulary of biocultural entitlements, calling for the creation of set duties and obligations on the parties engaging with indigenous communities for the use of genetic resources and knowledge.

The Protocol noted in its preamble that “the interrelationship between genetic resources and traditional knowledge, their inseparable nature for indigenous and local communities, the importance of the traditional knowledge for the conservation of biological diversity and the sustainable use of its components, and for the sustainable livelihoods of these communities.”

The preamble also stated that it was mindful of “the right of indigenous and local communities to identify the rightful holders of their traditional knowledge associated with genetic resources, within their communities.”

Article 6 dealt with aspects of access to genetic resources where its subsection (1) clearly stated that “in the exercise of sovereign rights over natural resources, and subject to domestic access and benefit-sharing legislation or regulatory requirements, access to genetic resources for their utilization shall be subject to the prior informed consent of the party providing such resources . . . or a party that has acquired the genetic resources in accordance with the Convention, unless otherwise determined by that Party.”

Article 6(2) emphasized that “in accordance with domestic law, each party shall take measures, as appropriate, with the aim of ensuring that the prior informed consent or approval and involvement of indigenous and local communities is obtained for access to genetic resources where they have the established right to grant access to such resources.”

Article 6(3)(g) established the idea of mutually agreed terms where it called to “establish clear rules and procedures for requiring and establishing mutually agreed terms.”

Article 7 affirmed similar ideas for access to traditional knowledge associated with genetic resources.

Article 12(1) clarified that “in implementing their obligations under this protocol, parties shall in accordance with domestic law take into consideration indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources.”

Furthermore, Article 12(4) emphasized that “parties, in their implementation of this Protocol, shall, as far as possible, not restrict the customary use and exchange of genetic resources and associated traditional knowledge within and amongst indigenous and local communities in accordance with the objectives of the Convention.”

By ensuring that prior informed consent and mutually agreed terms are set forth before actually accessing the knowledge, Article 6 affirmed the idea of an established agency of the indigenous communities to control and govern the uses of the traditional knowledge while ensuring that their customary laws are respected.

Article 14 called for establishing an Access and Benefit-sharing clearinghouse as part of the clearinghouse mechanism under Article 18(3) of CBD which would serve as a means for sharing of information related to access and benefit-sharing. An internationally recognized certificate of compliance which is issued by the resource provider to act as an evidence of prior informed consent, and mutually agreed terms would have to be made available to this clearinghouse.

In the domain of benefit sharing, the Nagoya Protocol, thus, institutionalized various biocultural rights and entitlements of indigenous communities in accordance with the domestic laws of the parties. However, this Protocol restricts access only to global players, ignoring the access of local communities; it prioritized only utilization for research and commerce, ignoring the survival needs of local communities. This was legalized biopiracy, as it enabled the transfer of genetic wealth from local communities to global corporations, undermining the biodiversity economies and cultures that have conserved biodiversity and are necessary for its future.

However, despite this, the protocol successfully provided a legal framework for the fair, equitable sharing of benefits arising out of the utilization of genetic resources for research and commercialization purposes. At present, more than 100 countries have acceded to the Protocol, making it mandatory for them to set down an access and benefit regime in compliance with it. Furthermore, patent and IPR regimes are required to respect the obligations under the Nagoya Protocol for access and benefit sharing.

The protocol followed the Indian Biodiversity Act by eight years. Countries of the world were inspired by the forward thinking Indian legal framework.