Access or Utilisation – What Triggers User Obligations?

The report examines the 'temporal scope' of the Nagoya Protocol, specifically whether access and benefit-sharing (ABS) obligations are triggered by the initial physical access to genetic resources (GRs) and traditional knowledge (TK) or by their subsequent utilisation. It argues that the European Commission's draft proposal, which limits obligations to resources accessed after the Protocol's entry into force, contradicts the ABS laws of many provider countries (such as Ethiopia, India, and South Africa) where utilisation is the trigger. The authors contend that this discrepancy will lead to legal uncertainty for EU users, who may be compliant with EU law but liable for criminal charges in provider countries, and will disincentivise provider countries from facilitating access to their biodiversity.

• The European Commission's draft regulation limits ABS obligations to genetic resources and traditional knowledge accessed in provider countries after the Nagoya Protocol has been ratified by both the EU and the country of origin.
• Many provider countries define 'access' to include the utilisation of genetic resources, regardless of when or where the physical access occurred.
• The draft EU proposal may create significant legal uncertainty for European users, as they could be in compliance with EU law while simultaneously breaching the national laws of a provider country.
• The report argues that an access-only trigger will encourage provider countries to implement more restrictive and burdensome ABS procedures because they cannot enforce the renegotiation of terms for new uses once material has left their borders.
• The draft EU regulation may facilitate 'biopiracy' by effectively legalising the utilisation of resources accessed prior to the Protocol's entry into force, even if such use occurs afterward.
• The report highlights that a focus on the moment of access fails to reflect the reality of bioprospecting supply chains, where the specific downstream research and development use of a material is often unknown at the time of acquisition.
• The authors suggest that an access-based trigger creates loopholes for illegal users to falsely claim that materials were acquired before the Nagoya Protocol to avoid obligations.

APA

Natural Justice (2013). Access or Utilisation – What Triggers User Obligations? https://naturaljustice.org/wp-content/uploads/2015/09/Nagoya-Protocol-Submission.pdf

Chicago

Natural Justice. Access or Utilisation – What Triggers User Obligations? 2013. https://naturaljustice.org/wp-content/uploads/2015/09/Nagoya-Protocol-Submission.pdf.

Wikipedia

{{cite report |author=Natural Justice |title=Access or Utilisation – What Triggers User Obligations? |date=2013 |url=https://naturaljustice.org/wp-content/uploads/2015/09/Nagoya-Protocol-Submission.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{naturaljustice2013access, author = {{Natural Justice}}, title = {{Access or Utilisation – What Triggers User Obligations?}}, institution = {Natural Justice}, year = {2013}, url = {https://naturaljustice.org/wp-content/uploads/2015/09/Nagoya-Protocol-Submission.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }