MARKUS WYSS¹ , DOMINIC MUYLDERMANS^2* 
*Corresponding author
1. DSM Nutritional Products Ltd., Kaiseraugst, Switzerland
2. Independent attorney and senior legal advisor to ABS-int, Bruges, Belgium

Abstract

The Nagoya Protocol is a supplementary agreement to the Convention on Biological Diversity. Its aim is to provide a transparent legal framework for the fair and equitable sharing of benefits arising from the utilization of “genetic resources”, thereby contributing to the conservation and sustainable use of biodiversity. Being in force since 2014, the Nagoya Protocol stipulates (i) the basic principles how genetic resources should be accessed, and (ii) the compliance obligations that users of genetic resources need to respect. 
While the ambitions of the Nagoya Protocol are honorable, implementation in daily practice proves to be challenging. 
This article will address the opportunities and challenges currently encountered, and how the Nagoya Protocol may affect innovation and trade, by highlighting some specific issues related to screening, complex value chains and the human microbiome.

INTRODUCTION

The Convention on Biological Diversity (CBD), adopted at the 1992 “Earth Summit” in Rio de Janeiro, recognized the principle that States have sovereign rights over their natural resources, thereby departing from the model of natural resources as “common heritage of mankind”. This United Nations treaty has three main objectives, namely (1) the conservation of biological diversity; (2) the sustainable use of the components of biological diversity; and (3) the fair and equitable sharing of the benefits arising out of the utilization of “genetic” (biological) resources. In other words, the ambitions are to prevent unauthorized exploitation of genetic resources, and to secure that benefits (profits) generated from the use of genetic resources are shared fairly with those countries exercising sovereign rights over these genetic resources. To further implement the third objective of the CBD, a supplementary agreement, providing a more detailed international legal framework for governing Access and Benefit Sharing (ABS) related to genetic resources, was negotiated and adopted in 2010 in Nagoya, Japan (Secretariat of the Convention on Biological Di ...