The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization has entered into force on 12 October 2014 and the first meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol (COP-MOP) took place in Pyeongchang, Republic of Korea, from 13 to 17 October 2014.

So, the ratification challenge has been met. Still we leave the following text from before the entering into force to demonstrate challenges countries had to meet:

The Nagoya Protocol has been adopted but it not yet ratified. In order to become a binding agreement, the Protocol needs to be ratified by 50 Parties. In addition to the multi-year process of international agreement ratification, in the case of the Nagoya Protocol two major challenges must be met:

In some countries, responsibility for the implementation of Access and Benefit Sharing is not clearly attributed within governments. Who is in charge  ̶  the Ministry for Environment, Agriculture, Forests or Trade? This power vacuum poses problems for ABS stakeholders who do not know where to turn for permits or questions. It also slows down the legislative process since it is not clear which Ministry in charge of drafting laws and regulations.

In many countries it is fairly evident that the implementation of ABS would clash with existing laws and regulations. In order to avoid legal contradictions, governments must first analyse current legislation and see where and how to accommodate ABS measures. There are also supra-national approaches, e.g. by the African Union, to harmonize national ABS legislations. These frameworks should be examined with due diligence.

Nagoya Protocol (this website)

Nagoya Protocol on CBD website

12th Meeting of the Conference of Parties to the Convention on Biological Diversity (CBD COP-12), 6-17 October 2014, Pyeongchang, Republic of Korea

The Nagoya Protocol is to implement the third objective of the Convention on Biological Diversity (CBD). It also states that other Access and Benefit Sharing (ABS) instruments must be consistent with the CBD and the Protocol. In its preamble, the Protocol explicitly mentions the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). The ITPGRFA stresses the importance of plant genetic resources for food and agriculture and their special role for food security. The ITPGRFA also reaffirms national sovereignty over genetic resources and establishes a multilateral system (MLS) for ABS to facilitate access to 35 major food crops and 29 forage crops. However, it is silent on the ABS requirements for other food and agriculture plant genetic resources.

Taking this into consideration, there is a need to support and develop capacity for the coherent implementation of the two instruments at both the regional and national level. Relevant actors have initiated the first steps.

• Workshop: Nagoya Protocol and Plant Treaty National Focal Points in Latin America and the Caribbean, 25-28 September 2018, Lima, Peru
• The International Treaty and the Nagoya Protocol - A Tandem Workshop for National Focal Points. 3-6 June 2014, Rome, Italy
• Experts' Workshop: The International Treaty and the Nagoya Protocol: mutually supportive implementation. 29-31 January 2013, Rome, Italy

Implementing Access and Benefit Sharing (ABS) involves stakeholders with diverse and sometimes conflicting interests. Indigenous peoples and local communities (IPLC), as well as universities and research institutes in the provider and user countries, national and international private companies, local retailers, policy makers, ministries, law makers and development organizations play a role. They are not necessarily all part of the same ABS based value chain but related in different constellations. However, research is indispensable; policy and law makers are needed to create national ABS frameworks, while business involvement depends on whether the research has a commercial purpose or not.

Some regional and sub-regional organizations help to provide guidance for the ABS implementation process to their member states and in this way support the harmonization of ABS regulations. One example is the African Union's African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources (African Model Law). The African Union Commission saw a need for a gap analysis of the African Model Law and requested the ABS Initiative to conduct one. The Commission further requested the Initiative to support the development of African Union Guidelines for a coordinated implementation of the Nagoya Protocol.

Bringing together the different interests of all stakeholders is a challenge. The ultimate goal is, of course, to install sustainable ABS mechanisms with a strong legal base and equal and fair relations between users und providers.

• ABS Initiative stakeholders
• African Union Practical ABS Guidelines
• African Union Strategic ABS Guidelines

Many stakeholders are unaware that Access and Benefit Sharing (ABS) exists or areuninformed about how it could be implemented. Communication, Education and Public Awareness (CEPA) for ABS can solve this problem. CEPA is comprised of strategies, tools and outreach materials for communicating ABS to different target groups. The ABS Initiative has used and produced brochures and videos, for instance, which are used in international fora and during workshops and trainings.

• CEPA (on this website)
• CEPA website of the CBD
• Print documents and films on ABS and the ABS Initiative

Even where Access and Benefit Sharing (ABS) laws and regulations exist, discovering and sanctioning non-compliance is difficult. If genetic resources are taken out of the provider country for further research, who will monitor that ABS standards are being observed? An institutionalised international compliance mechanism is still lacking.

For now, the government of the user country must take measures to address situations of non-compliance with Prior Informed Consent (PIC), Mutually Agreed Terms (MAT) and national legislation in the provider country. Checkpoints should collect information on the utilization of genetic resources and associated traditional knowledge along ABS based value chains.

Compliance Mechanism website of the CBD

Vilm ABS Dialogue 2017 & 2018 - Informing about Domestic Measures for Acces to Genetic Resources

Organized by the German Federal Agency for Nature Conservation

After entry into force of the Nagoya Protocol and the corresponding Regulation (EU) No. 511/2014, European users of genetic resources are required to "exercise due diligence" to ensure that they have acquired genetic resources or associated traditional knowledge in accordance with the national access procedures of the respective provider country. One of the implementation challenges is the availability of transparent and reliable national access regulations in provider countries. The German Nagoya CNA-Unit of the BfN organized an international exchange of information and experience, the “Vilm ABS Dialogue – Informing about Domestic Measures for Access to Genetic Resources” in 2017 and 2018 at the BfN-branch office on Vilm Island. The conferences gave an opportunity to identify and present best-practices on available, clear and transparent access regulations with representatives of CNAs/National Focal Points (NFPs) of provider countries. The objective of the meetings was to allow users of genetic resources to be better informed by European CNA’s towards countries that have structured, clear, and transparent access measures in place.

VILM - ABS DIalogue 2017 - Report (without appendix which can be requested here)

VILM - ABS Dialogue 2018 - Report

The challenge is clear: Most countries have not yet introduced Access and Benefit Sharing (ABS) laws and regulations. Those that do exist are often insufficient and do not necessarily follow Nagoya Protocol principles. Developing and implementing relevant laws can be complicated due to diverse interests and lack of harmonization with existing legislation. Difficulties also stem from a lack of awareness or knowledge of what "Access and Benefit Sharing" really means.

The ABS Initiative helps to raise awareness and strengthen knowledge through its workshops and trainings. It also directly assists in developing laws and regulations at the national and international level, such as the African Union Model Law.

• Executive Summary Gap Analysis African Union Model Law (pdf)
• Gap Analysis African Union Model Law (pdf)

• IDLO Capacity Building Course for Lawyers from the African, Caribbean and Pacific Region - Building Legal Frameworks to Implement the Nagoya Protocol, 28 July – 1 August 2014, Rome, Italy