Access and Benefit Sharing under the Convention on Biological Diversity and Its Protocol: What Can Some Numbers Tell Us about the Effectiveness of the Regulatory Regime?

Access to biodiversity for food production: Reconciling open access digital sequence information with access and benefit sharing

Oberthür, Sebastian, and G. Kristin Rosendal, eds. 2014. Global Governance of Genetic Resources: Access and Benefit Sharing after the Nagoya Protocol. New York and London: Routledge.

Biological control is one of the most environmentally safe and economically profitable pest management methods. Beneficial organisms used in biocontrol can be of native or exotic origin. As invasive species are being accidentally introduced at an ever-increasing rate, deliberate introductions of non-native biocontrol agents are often needed for the area-wide management of these invasive pests. However, recent regulations have delayed or prevented prospecting for new, non-native natural enemies. A first phase of regulation started in the 1980s and concerned the development of risk analyses for non-native species. At this time, as commercial biocontrol became popular and the number of species of biocontrol agents on the market quickly increased, many thought that risk analyses were needed to prevent non-experts importing and commercializing insufficiently studied organisms. However, implementation of (environmental) risk assessments for biocontrol agents has resulted in a slowdown in the use of new non-native natural enemies, and in higher project costs caused by the need to prepare elaborate application dossiers. These regulations were mainly aimed at preventing potential negative effects of releasing non-native biocontrol agents and, thus, in increasing confidence in this pest management method. The second phase of regulations started more recently and deals with the question “Who owns biological control agents?” At the Convention on Biological Diversity (CBD) in Rio de Janeiro (Brazil) in 1993, one of the three objectives formulated was “the fair and equitable sharing of the benefits arising out of the utilization of genetic resources”. Biocontrol agents are such genetic resources. The Nagoya Protocol, a supplementary agreement to the CBD, provides a framework for the effective implementation of the fair and equitable sharing of benefits (i.e. the Access and Benefit Sharing (ABS) regulations) arising out of the utilization of genetic resources. Signatories of the Protocol are required to develop a legal framework to ensure access to genetic resources, benefit-sharing and compliance. Recent applications of CBD principles have already created barriers to collection and export of natural enemies for biocontrol research in several countries. If the Nagoya Protocol is widely applied, it may seriously interfere with searching for and application of biocontrol agents against invasive pests. Therefore, the International Organization for Biological Control (IOBC) first of all made an appeal to those involved in developing the legal framework for ABS, to design regulations that support the biocontrol sector by facilitating the exchange of biocontrol agents, including clear guidelines. Secondly, the IOBC also strongly recommended that biocontrol agents should be considered as a special case under the CBD, by creating a non-financial ABS regime, mainly because classical biocontrol is a non-for-profit activity, and both developing and developed countries benefit from the use of the same biocontrol agents. Thirdly, as prospecting for new non-native natural enemies has currently been suspended if not terminated 656in many countries due to CBD and ABS procedures, the IOBC prepared a best practices guide to assist the biocontrol community to demonstrate due diligence in complying with ABS requirements. The best practices guide includes a draft ABS Agreement for collection and study of biocontrol agents that can be used for scientific research and non-commercial release into nature by countries having signed the Nagoya Protocol. If many countries decide to implement the IOBC proposal for an agreement for collection and study of natural enemies, biocontrol might face a bright future.

Access and benefit sharing (ABS) is a framework which refers to a relatively recent type of legal requirements for access to and use of “genetic resources”. They are based on diverse national and regional laws and regulations, which mostly result from the implementation of the United Nations’ Convention on Biological Diversity (CBD) and its supplementary agreement, the Nagoya Protocol. Their ambition is to achieve fair and equitable sharing of benefits arising out of the use of genetic resources as an incentive to conserve and sustainably use them. This paper describes the experiences, practical constraints and complexities encountered by users of genetic resources when dealing with ABS legislation, with a focus on users from the private sector. We provide insights on how ABS laws have fundamentally changed the way of working with genetic resources, in the hope that it inspires re-thinking of the ABS framework, to better support the overall objectives of the CBD.

This paper addresses the transformation of international law, The Convention on Biological Diversity (CBD) and its Nagoya Protocol on Access and Benefit Sharing (NP), into national law. Those convention and protocol have established an Access and Benefit Sharing (ABS) system between utilizers and providers of genetic resources, including for indigenous people. One of the objectives of treaties it to obligate States to make law to ensure the rights of indigenous people for benefit sharing. Indonesia and Thailand are megadiversity countries and also the parties of the treaties. This paper tries to compare Indonesia and Thailand in transforming the ABS law into their national legal system and how the judges in Indonesia and Thailand use international treaty in deciding the cases. CBD is the starting point of the ABS concept for legal rights or interests that can be owned in relation to genetic resources. In this sense ABS is one of the new and innovative legal concepts introduced in international law. However, the CBD has only created a concept of ABS rights policy. Therefore, the concept of ABS rights of indigenous peoples needs to be formulated in national law by enacted the rights of indigenous peoples related to genetic resources.

The Convention on Biological Diversity (CBD) and its Nagoya Protocol (NP) established an Access and Benefit Sharing (ABS) system between utilizers and providers of genetic resources. ABS is understood as a tool that should promote commutative justice between the involved parties. This essay discusses what exactly it is that is being exchanged in the ABS process. It critically analyses moral claims to compensation that are implied by the ABS system for genetic resources. It argues that with the exception of cases in which traditional knowledge is involved, states are not automatically entitled to compensation in return for the utilization of genetic resources growing within their territory. However, biodiversity-rich states that make an effort to protect biodiversity must be compensated for complying with the requests set out in the CBD. Although it acknowledges that the NP is a step towards recognizing this claim, this essay argues that ABS is not the appropriate method to compensate for biodiversity conservation.

In October 2010, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising From Their Utilization (NP) was adopted at the Conference of the Parties (COP‐10) of the Convention on Biological Diversity (CBD). The NP establishes rules on measures to be taken by user countries in the context of access and benefit sharing (ABS). The future success of ABS as embedded in CBD and the Nagoya Protocol depends on their implementation at a national level. The binding rules of CBD and NP have in common that they need to be transformed into national legal and political contexts to establish a functional system for ABS. This article addresses measures that are needed in the international regime to secure adoption and implementation of user‐country measures which are compatible with provider‐country legislation. It analyses one current example of user‐country legislation: the recently adopted Norwegian legislation, for the purpose of finding options for and obstacles to implementing obligations in the CBD and the NP in national law and in actual practice. One part of the ABS challenge is that obligations in the CBD and the NP apply to states, whereas the actual users of genetic resources are mostly private or public enterprises: companies, universities or other institutions. Despite showing a promising start, far from all challenges of a functional ABS system are solved.

In 1995 and 2017 respectively, Cameroon ratified the Convention on Biological Diversity (CBD) and its Nagoya Protocol (NP) on Access and Benefit Sharing (ABS). Cameroon’s ratification of the NP on ABS indicates the country’s commitment to translate and operationalize its provisions in a domestic ABS regulatory framework. A process was initiated in 2013 by the Government of Cameroon (GoC) that was aimed at: (1) Adopting a ministerial order on ABS that would govern ABS negotiations on the specific case of Echinops giganteus and other emerging cases and; (2) Constructing a comprehensive NP compliant ABS policy, administrative and legal framework. This chapter looks at the progress so far in Cameroon in establishing a NP compliant ABS regulatory framework. It also discusses the newly adopted ABS law of July 2021 and the draft implementing regulations around the following issues: the scope of the regulatory framework and the proposed institutional framework; the nature of the key regulatory tools such as the prior informed consent (PIC), mutually agreed terms (MAT/ABS contracts) and benefit-sharing schemes; the approach taken by the emerging instruments to address the different facets and levels of compliance. Likewise, it discusses the extent to which the ABS instruments are compliant with the NP, highlights their strengths and weaknesses and suggests way forward in view of delivering an effective and NP compliant ABS regime.KeywordsCameroonAccess and benefit-sharingNagoya protocolRegulatory frameworkABS compliance

The Republic of France is fully committed to the implementation of the 1992 Convention on Biological Diversity (CBD) and its Protocol on access and benefit sharing (ABS) both as a sovereign country and as a member of the European Union (EU). In connection with France’s status as an EU member State, the country is legally bound by Regulation (EU) 511/2014 on ABS which implements user measures of NP in the EU. In 1994 and 2016 respectively, France became party to the CBD and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization to the Convention on Biological Diversity. France considers itself as a megadiverse country, based on its unique position in Europe and the rich biodiversity found in its overseas territories. However, as a technologically advanced country, France is equally a major user of genetic resources. This chapter explores how France domesticates the NP on ABS from the perspectives of both a supplier and a user of genetic resources and associated traditional knowledge. It examines the extent to which the ABS regulatory infrastructure of France that has been constructed after the entry into force of the NP in 2014, complies with the NP. The chapter demonstrates that the post NP ABS regulatory framework of France is de jure compliant with the letter of the NP. However, questions may be asked about the de facto compliance, which is, whether the spirit of the NP is properly embedded in the ABS regulatory framework of France. In their current versions, the ABS regulatory instruments of France do not appear to be highly reassuring to other supplier countries of GR that they are capable to ensure that all the users of illegally and/or inappropriately accessed resources are seriously scrutinized.KeywordsNagoya protocolABS regulationsGenetic resourcesMegadiverse countriesCompliance

Biodiversity COP15 - A stepping stone towards effective access and benefit sharing Here, Dominic Muyldermans and Markus Wyss explore the opportunities and challenges on the journey towards effective access and benefit sharing across the globe. The objectives of the Convention on Biological Diversity (CBD) of 1992 are the conservation and sustainable use of biodiversity, as well as the fair and equitable sharing of benefits arising out of the utilization of genetic resources. The CBD recognizes that countries have sovereign rights over their genetic resources and already included the principles of Access and Benefit Sharing (ABS). These ABS principles have been further operationalized in the Nagoya Protocol, which entered into force in 2014.

Under the Convention on Biological Diversity (CBD) countries have sovereign rights over their genetic resources. Agreements governing the access to these resources and the sharing of the benefits arising from their use need to be established between involved parties [i.e. Access and Benefit Sharing (ABS)]. This also applies to species collected for potential use in biological control. Recent applications of CBD principles have already made it difficult or impossible to collect and export natural enemies for biological control research in several countries. If such an approach is widely applied it would impede this very successful and environmentally safe pest management method based on the use of biological diversity. The CBD is required to agree a comprehensive Access and Benefit Sharing process in 2010, in preparation for which the IOBC (International Organization for Biological Control of Noxious Animals and Plants) Global Commission on Biological Control and Access and Benefit Sharing has prepared this position paper. Here, we first describe the practice of biological control in relation to the principles of ABS, illustrated extensively by case studies and successes obtained with biological control. Next, we emphasise the very limited monetary benefits generated in biological control when compared to other fields of ABS such as the collection of germplasm for development of human drugs, chemical pesticides or crop cultivars. Subsequently, we inform the biological control community of good ABS practice and challenges, and we hope to make clear to the community involved in ABS under the CBD the special situation with regard to biological control. Finally, based on the non-commercial academic research model, we make recommendations which would facilitate the practice of collection and exchange of biological control agents, propose a workable framework to assist policy makers and biological control practitioners, and urge biological control leaders in each country to get involved in the discussions with their national ABS contact point to take their needs into consideration.

The over-arching aim of the access and benefit-sharing (ABS) of genetic resources under the Convention on Biological Diversity (CBD) and the Nagoya Protocol is to enable fair distribution of benefits between the users (such as universities and biotech companies) and providers (such as biodiversity-rich countries) so as to both open the doors for innovation and create incentives for biodiversity conservation. Access to genetic resources is crucial not only for research related to conservation of genetic resources, but essential to many different research disciplines in general. Therefore, access to genetic resources in general as well as benefit-sharing from that access is a key element of the United Nations Sustainable Development Goal 15 Target 6 of the and in order to secure research as well as environmental sustainability and resource availability. ABS is a rapidly developing and evolving field that is shaped by the implementation of the Parties. This means that the national implementation of the Parties determines how ABS goals are realised and how ABS principles find form within regulatory mechanisms. These principles are found in international legal documents such as the CBD as well as the Nagoya Protocol. Additionally, decisions and guidelines drafted by the Conference of the Parties to the Convention on Biological Diversity shape these principles that are then to be fulfilled by the Parties when drafting their ABS laws by means of implementing these principles into their national legal systems. This article reviews a portion of these national ABS laws, implemented by provider countries throughout the world with the aim of describing the different types of regulatory mechanisms provider countries use. This descriptive approach is then followed by an empirical comparative analysis through semi-structured stakeholder interviews in order to identify the most beneficial regulatory mechanisms according to ABS experts that belong in four different stakeholder groups (provider countries, academic users, industrial users and collections).

With the advent of synthetic biology, scientists are increasingly relying on digital sequence information, instead of physical genetic resources. This article examines the potential impact of this shift on the access and benefit-sharing (ABS) regime of the Convention on Biological Diversity (CBD) and the Nagoya Protocol. These treaties require benefit-sharing with the owners of genetic resources. However, whether “genetic resources” include digital sequence information is unsettled. The CBD conceives genetic resources as genetic material containing functional units of heredity. “Material” implies tangibility, and for some scholars, “functional units of heredity,” undefined in both treaties, mean full-coding sequences. This article argues that digital sequence information obtained from physical genetic resources, full-coding or not, should be treated as genetic resources. Literal construction of the CBD risks eroding its usefulness and the ABS regime. This is because through bioinformatics, sequence information can easily be obtained from genetic resources for utilization, without physically moving them or concluding ABS agreement with owners. The CBD must evolve with scientific progress also because sequence functionality depends on the state of knowledge. These arguments are vindicated by domestic ABS laws equating genetic information with genetic resources; Nagoya Protocol provisions deeming research exploiting the genetic composition of genetic resources as utilization of genetic resources; and CBD provisions requiring the sharing of benefits from the utilization of genetic resources. Moreover, treaty interpretation and case law demand that generic, scientific terms, such as “genetic resources” and “functional units of heredity” be interpreted in an evolutionary manner to capture scientific developments.

At its 10th meeting in 2010, the Conference of the Parties of the CBD adopted the ‘Nagoya Protocol (NP) on access to genetic resources and the fair and equitable sharing of benefits arising from their utilisation’ which entered into force on 12 October 2014. Currently, the NP has been adopted by 129 parties, including the EU. This article reviews information retrieved from a variety of different sources dealing with the implications of Access and Benefit Sharing (ABS) regulations, including the NP, for biological collections, especially regarding material accession, conservation and research in botanic gardens. Problems encountered with adhering to ABS regulations and the NP include the following: increasing bureaucratic and administrative burdens arising from the many different ABS-related regulations at the national level; difficulties in identifying and engaging with national authorities designated as competent signatories for the NP in user and provider countries; and problems arising from ambivalent and inconsistent use of terms in the NP and in national ABS legislation. The authors encourage parties to fulfil the CBD requirement for ‘simplified measures on access for non-commercial research purposes’ and point out that NP-related impediments to conservation (and fundamental research) will have negative impacts on human development and biodiversity.

Use and exchange of aquatic genetic resources in aquaculture: information relevant to access and benefit sharing