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.

The Convention on Biological Diversity (CBD), adopted in 1992 and entered into force at the end of 1993, established a global regime on access to genetic resources (GR) and sharing of benefits arising from their utilization (Access and Benefit Sharing (ABS) regime). Its protocol—the Nagoya Protocol (NP)—which entered into force 21 years later in 2014, clears up some terminological ambiguities of the Convention, clarifies and develops several procedural and instrumental elements of the regime, and obliges States Parties to implement some of its provisions, including the core instrument of the regime: the bilateral ABS agreement between users and providers of GR, that became a condition for obtaining access to the resource. However, scholars who analyzed the ABS regime as well as its official bodies find, and sometimes deplore, the small number of ABS agreements concluded so far, under the CBD as under the NP. This paper has two objectives: First, to assess the effectiveness of the ABS regime implemented by the CBD and the NP on the basis of its central instrument: the ABS agreements concluded between users and providers of GR. The aim is to accurately document the number of ABS agreements concluded since the entry into force of the regime. To our knowledge, such a counting that is neither piecemeal nor has an estimate yet been produced. To do so, I combine several sources, including first hand data collected from the official information agencies—the National Focal Points (NFP)—of each of the States Parties to the NP. Second, I provide a critical summary of the existing explanations of the low number of ABS agreements concluded and I evaluate the corresponding causal mechanisms, relying on the results I obtained regarding the number of permits and agreements.

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.

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.

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.

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

India with varied topography, edaphic and climatic conditions has led to flourish mosaic habitats sustaining rich biodiversity linked with diverse people escape, especially the floral wealth of the country having associated traditional knowledge and cultural heritage. Since time immemorial, besides daily life support, the floral wealth of the country has been used in traditional medicine for local health care. But over time, these medicinal plants had been explored and exploited by many foreign entities, especially during the pre-independence era leading to the rapid depletion of these resources, promoting biopiracy along with erosion of associated traditional knowledge. To counter global loss of biodiversity and to reaffirm sovereign rights of the states over their biological resources, United Nation’s Convention on Biological Diversity (CBD) was ratified in 1992. India being a signatory of the CBD, has enacted the Biological Diversity Act, 2002 (BD Act) and Biological Diversity Rules, 2004, implementing through a three tier system (National Biodiversity Authority, State Biodiversity Boards and Biodiversity Management Committees at grass root level. Complying to BD Act, for access to biological resources for commercial utilization, before undertaking such activities applicants (with international participation) are to apply to NBA (matter of Section 3(2)) and Indian applicants (matter of Section 7) are to apply to SBBs in requisite format and with desired fees. Though the Sections 3–7 (both inclusive) came into force from 1st day of July 2004, one of the major impetus to Access and Benefit Sharing (ABS) scenario in India came from Nagoya Protocol, 2010 and formulation of ABS guidelines, 2014 in pursuance of the said protocol. Out of more than 20,000 species of vascular plants, so far documented from India, the Indian classical and the folk health care traditions are dependent upon the raw materials derived from estimated 6,500 species, out of which around 1178 species of medicinal plants are reported to be traded, and 242 of them are used in annual quantities of more than 100 MT. Records show that Ayurveda, Unani, Homoeopathy and Siddha systems of medicine utilizes around 800, 305, 425 and 250 species of medicinal plants in India, respectively. India’s domestic herbal industry is represented by 8610 licensed herbal units, thousands of cottage level unregulated herbal set-up and millions of folk healers. The complex trade web hints towards prominent wholesale markets and mandis across 14 cities from 12 states that channelizes herbal raw materials from various supply sources to the end users. The consolidated commercial demand of herbal raw materials for the year 2014–15 has been estimated at 5,12,000 MT. Even though with wide spread awareness on ABS, it is unfortunate that most commercial entities have not come forward to be a part of ABS mechanism; major reason being misperception of ABS as additional monetary burden, while Section 21 (2) of BD Act and the ABS guidelines has clear outlines for non-monetary provisions also. Further, the provisions of Section 7 of the BD Act, in some cases is not attracted by bio-resource users and there is also a misconception that all medicinal plants come under the ABS provisions, though there are exemption on 174 biological resources belonging to 108 species of medicinal plants which are ascribed under normally traded commodities as notified by Govt. of India vide Section 40 of the BD Act. The number of BD Act compliant commercial entities pertaining to Section 3(2) who have signed e.g. ABS with NBA (2006–2007 to 2020–2021) is only 311 which suggests low participation of the industrial fraternity to the ABS provisions of the BD Act. The unresponsiveness of many commercial users of bioresources (including medicinal plants; pertaining to Section 7) to the notices of SBBs/BMCs have led to a number of ABS related court cases. Concerted effort in this regard is necessary for proper sensitization of BMCs, associated line departments, bioresource conservers/cultivators, benefit claimers and commercial users alike for involvement in ABS process, so that a win-win-win situation may be created for both the bioresource, benefit claimers and the industry. The diversified medicinal plant wealth in Indian land mass, both actual and potential, has immense scope in bioprospecting especially in pharmaceutical and nutraceutical industries which would hopefully lead to enter into ABS chain towards their conservation.

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).

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.

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.

The management of access to genetic resources, traditional knowledge (TK), and benefit sharing among indigenous people and local communities in the worldwide is extensively addressed in international legal instruments, including the Convention on Biological Diversity (CBD) and its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits (ABS) Arising from their Utilization. The CBD aims to promote the conservation of biological resources, the sustainable use of biodiversity components and the equitable, fair sharing of benefits arising from the use of genetic resources. The Nagoya Protocol sets out core obligations for its contracting Parties to take measures in relation to ABS and compliance. In 2021, the Secretariats of the CBD released the first draft of the Post-2020 Global Biodiversity Framework with the mission for the period up to 2030, aiming towards the 2050 vision: “To take urgent action across society to conserve and sustainably use biodiversity and ensure the fair and equitable sharing of benefits from the use of genetics resources, to put biodiversity on a path to recovery by 2030 for the benefit of planet and people.” Therefore, capacity building and development for the implementation of the Nagoya Protocol are crucial, especially for developing countries. One of the most commonly identified new capacity building needs is digital sequence information on genetic resources and their roles in ABS. As a member of the CBD and the Nagoya Protocol, Vietnam has obligations to develop the National Strategy Framework on Biodiversity to 2030, with a vision to 2050, consistent with the requirements of the Post-2020 Global Biodiversity Framework, Protocols, and relevant Agreements. This includes developing recommendations on management of access to genetic resources and TK, as well as benefit sharing within the Draft of the National Biodiversity Strategy and Action Plan. This research aims to contribute to implement the Post-2020 Global Biodiversity Framework and the Nagoya Protocol in Vietnam by assessing the status of management regarding access to genetic resources, TK, and benefit sharing.

ABSTRACTBiological control agents must be collected and utilised in compliance with the Nagoya Protocol on Access and Benefit Sharing (ABS) which is being implemented independently by each country that is signatory to the Protocol. By March 2018, 50 countries had legislation in place with an additional 54 designing their Legislative, Administrative or Policy Measures having become Party to the Protocol. Apart from the problem of dealing with the many different mechanisms countries are putting in place, it is often difficult to find relevant information on the ABS Clearing House and to access and receive appropriate responses from the National Focal Points or Competent National Authorities. We feel that a lot of time is lost on both sides (National authorities and scientists seeking information), and the process would benefit from streamlining. Also, open questions remain, such as how to deal with the generation digital sequence information and what specific activities are considered utilisation, especially for biological control. CABI has pro-actively developed an ABS policy and best practices for its staff to try and comply with the Nagoya Protocol. In addition, CABI has started negotiations with several provider countries, beginning with its member countries, to have its ABS policy and best practices recognised, considering the non-monetary benefits typically associated with biological control. The Nagoya Protocol was born out of the necessity to guarantee the fair and equitable sharing of benefits arising from the utilisation of genetic resources. However, it should not hinder the development of best practice solutions to protect exactly these genetic resources from threats like invasive species. It is important that research and development that addresses global societal challenges are not impeded and that science and its output are recognised as a way to preserve and use genetic resources in an equitable way.

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.