The Bonn Guidelines on Access and Benefit-Sharing (2002) and the Nagoya Protocol
Law of Intellectual Property and Biodiversity · Unit II · Topic 7 of 14 · 6 min read
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1. Why guidelines were needed
Article 15 of the CBD stated principles (sovereignty, PIC, MAT, benefit sharing) without procedure. Through the 1990s few countries had ABS laws (the Philippines’ Executive Order 247 of 1995 and the Andean Community’s Decision 391 of 1996 were early ones), and users complained of uncertainty while providers complained of biopiracy. An expert panel and an ad hoc working group met at Bonn in 2001 and produced a draft. The Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization were adopted by COP6 at The Hague in April 2002 (decision VI/24).
2. Nature and objectives
The Guidelines are voluntary. They are meant to assist parties, governments and stakeholders in developing ABS strategies and laws and in negotiating contracts. Their stated objectives include contributing to conservation and sustainable use; providing a transparent framework for access; guiding users and providers; capacity building; technology transfer; and promoting the provision of financial resources to developing countries. They cover all genetic resources and associated TK covered by the CBD and the benefits from their use, except human genetic resources.
3. Roles and responsibilities
- National focal point: one per country, which informs applicants of procedures for PIC and MAT and of the competent authorities and stakeholders.
- Competent national authorities: responsible for granting access and advising on negotiation, monitoring and enforcement.
- Users should seek PIC, respect customs and values of communities, respond to requests for information, use resources only for the purposes consented to, keep records, and share benefits.
- Providers should supply resources only when entitled to do so, avoid arbitrary restrictions, and give clear, simple procedures.
- User countries (where resources are used) should consider measures to support compliance: informing users of their obligations, encouraging disclosure of the country of origin of genetic resources and the origin of TK in IP applications, preventing the use of resources obtained without PIC, and cooperating to address violations.
- Stakeholder participation, including indigenous and local communities, in decision-making on access.
4. Steps in the access process
Prior informed consent. The basic principles: legal certainty and clarity; minimal cost of access; transparency of restrictions; consent of the competent national authority of the providing country and, as appropriate, of stakeholders such as indigenous and local communities; and a reasonable period for decisions. An application should state who the applicant is, the resources and quantities sought, the location, the intended use (research, commercial), whether third parties may be involved, and how benefits will be shared.
Mutually agreed terms. The Guidelines recommend legal certainty, minimal transaction costs, and clear provisions on user and provider obligations. Appendix I lists suggested elements for material transfer agreements:
- type and quantity of resources and geographical area;
- permitted uses and limits on them, including commercial use;
- whether resources may be transferred to third parties;
- whether IP may be sought and on what terms, including joint ownership;
- recognition of the contribution of the provider and TK holders;
- benefit-sharing terms, confidentiality, duration, dispute settlement and governing law.
Benefit sharing. Appendix II lists monetary benefits (access fees, up-front and milestone payments, royalties, licence fees, research funding, joint ventures, joint IP) and non-monetary benefits (sharing of research results, collaboration in research, participation in product development, technology transfer, training, capacity building, institutional strengthening, access to ex situ facilities, food and livelihood security). Benefits should be directed to those who contributed to conservation and to the holders of TK.
5. Strengths and weaknesses
- Strengths: the first agreed international text on ABS procedure; useful checklists; recognition of communities as stakeholders; the first international reference to disclosure of origin in IP applications.
- Weaknesses: voluntary; no compliance mechanism in user countries, where misappropriated resources end up; no remedies across borders; little weight given to communities’ own consent rights.
Developing countries, led by the Like-Minded Megadiverse Countries (formed in 2002, India among them), pressed for a binding instrument. The World Summit on Sustainable Development (Johannesburg, 2002) called for negotiation of an international regime on benefit sharing within the CBD.
6. The Nagoya Protocol, 2010
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization was adopted at COP10 in October 2010 and entered into force on 12 October 2014. India is a party; the 2023 amendment added a reference to Nagoya in the preamble of the Biological Diversity Act. It converts the Bonn approach into obligations:
| Bonn Guidelines (2002) | Nagoya Protocol (2010) |
|---|---|
| Voluntary | Binding on parties |
| Suggested PIC procedure | Article 6: legal certainty, clear rules, written decisions, permits |
| Community involvement “as appropriate” | Articles 6(2) and 7: PIC or approval and involvement of communities for their TK and, where they have established rights, their resources |
| Appendix II benefit list | Article 5 and Annex: benefit sharing on MAT, including subsequent applications |
| User measures encouraged | Articles 15–18: user-country compliance, checkpoints (Article 17), internationally recognised certificate of compliance |
| No information system | Article 14: ABS Clearing-House |
Other Nagoya provisions: special consideration for non-commercial research, health emergencies and food and agriculture (Article 8); a global multilateral benefit-sharing mechanism for transboundary or untraceable resources (Article 10, not yet operational); and definitions of “utilization” and “derivative” (Article 2). The EU implemented user compliance through Regulation (EU) No 511/2014, which requires due diligence by users.
7. Effect in India
The NBA issued Guidelines on Access to Biological Resources and Associated Knowledge and Benefit Sharing Regulations in 2014 to implement Nagoya. After the 2023 amendment and the Biological Diversity Rules, 2024, the NBA notified new ABS Regulations in 2025, superseding those of 2014. The Indian approval forms, benefit-sharing modes in section 21 of the Act and the public disclosure of approvals all trace back to the Bonn checklist. The NBA uploads permits to the ABS Clearing-House, which converts them into internationally recognised certificates of compliance.
How this is examined
Likely long questions. “Examine the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits.” “Trace the development of access and benefit sharing from the Bonn Guidelines to the Nagoya Protocol.”
Likely short notes. Bonn Guidelines; prior informed consent; mutually agreed terms; monetary and non-monetary benefits; certificate of compliance; checkpoints under the Nagoya Protocol.