L’interazione tra Convenzione sulla biodiversità, Protocollo di Nagoya e Accordo BBNJ

The BBNJ Agreement fills a regulatory gap concerning bioprospecting at sea and represents a major step towards the fair and equitable sharing of the benefits deriving from the utilization of marine genetic resources (MGRs) found on the high seas or in the Area. With a view to implementing the Agreement, however, there are a number of complex issues that remain to be addressed. Among them, it stands out the interaction with the Convention on Biological Diversity (CBD) and the Nagoya Protocol, whose access and benefit-sharing (ABS) mechanism applies to MGRs and associated TK in areas under the jurisdiction of coastal States or stored ex situ. The Protocol will certainly contribute to the proper implementation of the BBNJ Agreement, in terms of monitoring the use of marine genetic resources and associated traditional knowledge. However, the interaction between the two regulatory systems is not free from problems. One should consider that some genetic resources falling within the scope of BBNJ Agreement are also present in areas under the jurisdiction of one or more coastal States. While acknowledging the need to pay due regard for the rights and legitimate interests of coastal States, the BBNJ Agreement does not set precise ABS criteria in the case of “straddling MGRs” located both in areas beyond national jurisdiction and in the territorial sea, EEZ or continental shelf of one or more States. The need for coherence, complementarity and synergies is even more pressing to develop, under the BBNJ Agreement, a workable solution on the sharing of benefits deriving from the use of digital sequence information (DSI). At a time when parallel processes are underway within the CBD and other specialized ABS instruments, all these efforts to regulate DSI databases need to be mutually supportive, in order to avoid gaps and inconsistences between the different multilateral regimes.