Analysing the Term "non-discriminatory in the Context of Compliance"

A short look back into the history of the negotiations of the Nagoya Protocol

During the final stages of the negotiations on access and benefit-sharing in the rooms on the upper floor of the Convention Center in Nagoya, “non-discrimination” in the context of compliance was a controversial issue. The Canadian delegation insisted on having “non-discriminatory” in the text. After many rounds of argument they compromised to deleting this terminology. In the same room somewhat later representatives of Indigenous Peoples and Local Communities, also sitting at the central table in the “Vienna+ Setting”, reintroduced “non-discriminatory”. Canada immediately supported them.
It should be noted that there are two distinct legal contexts in which the term “non-discriminatory” appears. It can be assumed that Canada, before agreeing to deletion, used it in the trade context. Indigenous Peoples and Local Communities certainly used it in the human rights context. Human rights, especially the UN-Declaration on the Rights of Indigenous Peoples, are at the forefront of their international cooperation. What did Canada support? The trade context or the human rights context?

Non-discrimination in the context of human rights

Human rights are inherent to all human beings, whatever nationality, place of residence, sex, national or ethnic origin, colour, religion, language or other status. They are universal, inalienable, interdependent, indivisible, equal and non-discriminatory.1

Non-discrimination in the context of trade agreements

“Most Favoured Nation Treatment” and “National Treatment” are basic principles of global trade agreements. They are meant to be “non-discriminatory”. Differential treatment, however, is not in itself sufficient to establish a case of discrimination, if there is “sufficient justification”. “National treatment” means that a state has to grant the particular right, benefit or privilege that it grants its citizens to the citizens of other states, while
they are in the country. And it only applies once a product, service or item of intellectual property has entered the market in a country.
It is regretted by some international trade actors that access to raw materials and energy and their subsequent trade across borders have not been fully covered by international trade and investment rules over the last decades. Several free trade and investment agreements are presently under way, i.e. The Transatlantic Trade and Investment Partnership (TTIP, EU-US), The Transpacific Partnership Agreement (TPPA, 11 Asian and Pacific-rim countries, including US) and The Comprehensive Economic and Trade Agreement (CETA, Canada-EU).
If the few official position papers and the many informal leaks about the mostly intransparent state of negotiations are to be believed, these agreements do include access to raw materials.
“In the context of exploration and production of raw materials and energy, it is important to confirm that the parties should remain fully sovereign regarding decisions on whether or not to allow the exploitation of their natural resources. Once exploitation is permitted, however, non-discriminatory access for exploitation, including for corresponding trade and investment related opportunities should be guaranteed by regulatory commitments”.2

Parties to the Nagoya Protocol may want to clearly define the legal context of the term “non-discriminatory” in the text on compliance, or delete it. They may increase the legal resilience of their national ABS legislation. And they may have a interministerial look at the new free trade agreement text proposals. The Nagoya Protocol must not be strangled in its cradle.

  1. Office of the United Nations High Commissioner for Human Rights.
  2. EU-US Transatlantic Trade and Investment Partnership. Raw Materials and Energy
Analysing the Term "non-discriminatory in the Context of Compliance"
Christine von Weizsäcker (2014): ECO 50(4) "Same word, two distinct legal contexts - What does “non-discriminatory” mean for Compliance in the Nagoya Protocol?" edited and reprinted in Environmental Policy and Law 45/2 (2015), p 57-58