Policy Brief 4, April 2011

The Nagoya ABS Protocol and Pathogens. 

Pathogens are clearly within the scope of the Nagoya Protocol (NP). Preamble 16 of the NP makes clear that pathogens are within the scope of the NP. Further the preamble does not exclude the application of the benefit sharing provisions of the NP. Indeed it cannot do so in the face of the express objective of the NP for the sharing of benefits. Also there is nothing in paragraphs 3 and 4 of Article 4 that makes the NP inapplicable to pathogens. Article 8(b) also does not establish a special benefit sharing regime for pathogens.

The upshot is that :
1. A Party to the Protocol can develop a national law that deals with pathogens as a genetic resource and subject it to the ABS requirements.
2. A Party to the Protocol may also collectively enter into any obligation – including a material transfer agreement in international fora such as the WHO – that reflects the ABS objective of the Protocol. The Agreement must therefore include fair and equitable sharing of benefits arising from the utilisation of the viruses (which should be expeditious if access to the viruses is expeditious), access and transfer of relevant technologies in relation to developing vaccines for pathogens. The vaccines must be made available to developing countries at affordable prices.
3. A Party to the Protocol in developing its national law or administrative or policy measures is not bound to take into account any ongoing work or practice in the WHO relating to pathogens. It needs only to consider taking into account any such work or practice.

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