Download 1 explanatory memorandum: ratification of the nagoya protocol on

EXPLANATORY MEMORANDUM: RATIFICATION OF THE NAGOYA PROTOCOL ON ACCESS TO
GENETIC RESOURCES AND THE FAIR AND EQUITABLE SHARING OF BENEFITS ARISING
FROM THEIR UTILIZATION TO THE CONVENTION ON BIOLOGICAL DIVERSITY
1.
DRAFT RESOLUTION
That, in terms of section 231 of the Constitution, the Nagoya Protocol on Access to Genetic
Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the
Convention on Biological Diversity (CBD) be ratified by Parliament.
2.
BACKGROUND INFORMATION
2.1
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization (in short referred to as "The Nagoya Protocol on ABS'' or
''The Protocol") is a supplementary agreement to the CBD which provides a legal framework for
the effective implementation of its third objective that deals with the fair and equitable sharing
of benefits arising from the utilization of genetic resources. The Protocol provides a strong
basis for legal certainty and transparency for both providers and users countries of genetic
resources and their associated knowledge. It further covers aspects pertaining to appropriate
access to genetic resources, technology transfer, compliance and capacity building. All these
elements contribute to national and global efforts towards the conservation of biological
diversity and the sustainable use of its components. The Protocol also reaffirms the sovereign
rights of states over their natural resources. It was adopted at the Tenth Meeting of the
Conference of the Parties to the Convention on Biological Diversity (CBD COP 10) on 29
October 2010, in Nagoya, Japan.
2.2
The objective of the Nagoya Protocol on ABS is the fair and equitable sharing of the benefits
arising from the utilization of genetic resources, including through appropriate access to genetic
resources and through appropriate transfer of relevant technologies, taking into account all
rights over those resources and to technologies, and through appropriate funding, thereby
contributing to the conservation of biological diversity and the sustainable use of its
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components. The Protocol includes twenty seven preambular clauses, thirty six operative
articles, and an annex containing an indicative list of monetary and non-monetary benefits.
Embedded in the provisions of the Protocol is the need for Parties to collaborate at
transboundary, regional, sub-regional and global levels to ensure the effective implementation
of the Protocol.
2.3
The Nagoya Protocol on ABS was opened for signature by Parties to the CBD from 2 February
2011 until 1 February 2012 at United Nations Headquarters in New York. To date, ninety-two
(92) countries have signed it, symbolizing their intention to ratify and be bound by its provisions.
South Africa signed the Protocol on 11 May 2011. In terms of ratification, five (5) countries have
ratified the Protocol. It will only enter into force ninety (90) days after being ratified by fifty (50)
countries.
2.4
Benefits of Ratification
South Africa is the third most biologically diverse country in the world, after Indonesia and
Brazil, with a high number of endemic species. South Africa represents around 2% of the
world’s landmass, but it is home to 10% of the world’s plants, 7% of the world’s reptiles, birds
and mammals, and 15% of known coastal and marine species, and one entire floral kingdom
within its borders, namely Fynbos. This richness in biodiversity presents a variety of
opportunities in the form of marine, freshwater and terrestrial animals, plants and microorganisms that may be used for scientific research or commercial exploitation
South Africa therefore attaches great importance to the Nagoya Protocol on ABS. It has made
remarkable progress since it became a contracting party to the Convention on Biological
Diversity (CBD) in 1995 by taking policy and legislative steps towards promoting conservation,
sustainable utilization of indigenous biological resources and associated traditional knowledge
while promoting the fair and equitable sharing of benefits arising from their utilization, namely
the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) and the
Bioprospecting, Access and Benefit Sharing (BABS) Regulations, 2008. This was achieved
before the adoption of the Nagoya Protocol on ABS. The Protocol also reaffirms the sovereign
rights of states over their natural resources.
Furthermore, South Africa will be able to contribute effectively in the shaping of any further
development of this Protocol through participation in the decision-making processes of the
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Conference of the Parties, serving as the Meeting of the Parties to the Protocol. Ratification will
also enhance the visibility and credibility of South Africa’s regulatory systems for
bioprospecting, access and benefit sharing within the global community, and also strengthen
compliance and enforcement when South Africa’s genetic resources and associated traditional
knowledge are utilized in foreign countries.
3.
PROCESS OF RATIFICATION
The attached submission was approved by the Minister of Water and Environmental Affairs.
The Department of Environmental Affairs has consulted with the relevant stakeholders
throughout the process and is now consulting both houses of Parliament.
4.
LEGAL AND CONSTITUTIONAL IMPLICATIONS
The legal advice of the legal experts of the Department of International Relations and
Cooperation, the Department of Justice and Constitutional Development, and the Department
of Environmental Affairs has been sought during negotiations and when the Minister had to sign
the Protocol. (See attached documents for ease of reference.)
5.
ORGANIZATIONAL AND PERSONNEL IMPLICATIONS
The Branch: Biodiversity and Conservation of the Department of Environmental Affairs already
has legislation on bioprospecting, access and benefit sharing (the BABS Regulations), which is
relevant to this protocol, in place, and its personnel are already dealing with access and benefit
sharing issues and the ratification and implementation of the Protocol which will be useful in
strengthening such existing endeavors and add international commitment to the ABS issues.
6.
FINANCIAL IMPLICATIONS
No additional financial implications as the activities of the above Branch, which are related to
the implementation of the Protocol, have already been budgeted for.
7.
COMMUNICATION IMPLICATIONS
None
8.
DEPARTMENTS/INSTITUTIONS CONSULTED
The Department of International Relations and Cooperation, the Department of Science and
Technology, the Department of Trade and Industry, the Department of Agriculture, Forestry and
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Fisheries, the Department of Justice and Constitutional Development, the South African
National Biodiversity Institute, Council for Scientific and Industrial Research, South African
National Parks, and the provinces.
8.1
Non-governmental and international organizations:
Natural Justice
African Centre for Biosafety
Biowatch
8.2
Business:
AGH Pharmaceuticals
Gowar Enterprises
South African Honeybush Tea Association
9.
RECOMMENDATIONS
It is recommended that ratification of the Nagoya Protocol on access to genetic resources and
the fair and equitable sharing of benefits arising from their utilization to the Convention of
Biological Diversity be supported and approved for further processing.
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