The Nagoya protocol was generated from the agreement on biological diversity for the conservation of biological diversity, the usage of its components, and the just and equitable participation of the benefits that come from the usage of the genetic resources; it was negotiated at the Environment and Development conference at the United Nations called “Cumbre de la Tierra” in Rio de Janeiro on June 5, 1992 and it became valid on December 29, 1993.
On October 29, 2010 in a meeting for a conference of the parts celebrated in Nagoya, Japan, the Nagoya protocol was adopted over the access to genetic resources and the just and equitable participation of the benefits that are derived from their use on the agreement of biological diversity.
The Nagoya protocol promotes conditions over the grants of concessions, benefits, access to research, and the right to intellectual property over the genetic resources and traditional knowledge without consulting or taking into account the vision and position of indigenous towns against the privatization and commercialization of the biodiversity and ancestral knowledge.
Presently the organisms of State have accorded mechanisms to establish the conditions for access and participation of benefits that are derived from the genetic resources (which include native seeds) and traditional knowledge that is associated with these things. Apart from the conditions over which the use of resources will be developed, which for the case of Guatemala distort the ways that common resources are administered pertaining to biodiversity in indigenous communities of Guatemala. These mechanisms do not include the consultation or participation of the Mayan towns, garifunas, xincas, and mestizos of Guatemala or takes into account the correct methods of administration from the traditional knowledge that has been developed and adapted for each one of the community’s actors.
The protocol also works under the consideration of “sovereignty” of the States, the free disposition over the genetic resources and the traditional knowledge, establishing bureaucratic and discretional procedures over the utilization and partial inclusion of the indigenous towns regarding access conditions that are determined by the development of the judicial institutional of strict negotiation, and the mechanisms of control over bioprospeccion that this would develop.
Transnational and national businesses are generating a new mechanism of territory dispossession through the privatization and commercialization of biodiversity, the native and creole seeds and the traditional knowledge. To accomplish their goals they use legal instruments that exclude the rights of intellectual property of indigenous towns and ancestral authorities.
The way in which decree 6-2014 was approved was unconstitutional because the motion was passed through the republic’s congress as a privileged motion of national urgency which would require two thirds of the votes to pass, regardless when the memory of sessions was acquired it is shown that only the necessary votes were reached making this situation evidence for the unconstitutionality in the approval of this decree.
The unconstitutionality, the threats to biodiversity and ancestral knowledge has motivated the ancestral authorities from mayan, garifuna, xinca, and mestizo towns, La Red Nacional por la Defensa de la Soberania Alimentaria en Guatemala (REDSAG) and La Alianza Nacional por la Proteccion de la Biodiversidad (ANAPROB) to propose before the Constitutionality Court a motion against the decree that approved the Nagoya protocol and demanded their expulsion from the juridical ordainment. On June 16, 2016 the court notified about the provisional suspension of the decree and conceded a hearing for fifteen common days to the Congress of the Republic of Guatemala, to the National Counsel of Protected Areas (CONAP), and to the Public Ministry on behalf of the prosecutor of Constitutional Affairs.
Along with the Nagoya protocol the entities of State are also promoting the Cartagena protocol which is another instrument that promotes the liberation, experimentation, and commercialization of Living Modified Organisms in Guatemala. Derived from this and according to the governmental agreement 207-2014 the Executive Organism gave life to the National Politics of Biosecurity of the Live Modified Organisms 2013-2023, and presently the Nacional Counsel of Protected Areas (CONAP) is launching a series of workshops the socialize the Ruling of Living Modifies Organisms.