Access to Plant Genetic Resources for Food and Agriculture and Benefit‐sharing in China: Legal Framework, Current Practices and Future Developments

• Published date: 01 July 2012
• Author: Xiaoyong Zhang
• Date: 01 July 2012
• DOI: http://doi.org/10.1111/j.1467-9388.2012.00748.x

Access to Plant Genetic Resources for Food

and Agriculture and Benef‌it-sharing in China:

Legal Framework, Current Practices and

Future Developments

Xiaoyong Zhang

The International Treaty on Plant Genetic Resources

for Food and Agriculture is the only legally binding

international instrument that governs the conserva-

tion, sustainable use, access and benefit-sharing

of plant genetic resources for food and agriculture

(PGRFA). The Treaty plays a particularly vital role in

ensuring sustainable agricultural development and

food security. Since its entry into force, much progress

has been made in implementing the Treaty. China has

not yet acceded to the Treaty even though it holds a

large number of accessions. Against this background,

this article introduces China’s legal framework that

regulates access to PGRFA and benefit-sharing as well

as current practices for access to PGRFA and benefit-

sharing in China. It recommends China’s accession

to the Treaty following necessary amendments to the

existing legal system.

INTRODUCTION

Over the past twenty years, access to genetic resources

and benefit-sharing (ABS) has become an issue of high-

level concern internationally. Even though a number

of disagreements still exist between developing and

developed countries,1the international community has

adopted three important treaties concerning access and

benefit-sharing related to plant genetic resources for

food and agriculture (PGRFA) – namely the Convention

on Biological Diversity (CBD),2the International Treaty

on Plant Genetic Resources for Food and Agriculture

(hereinafter: ‘the Treaty’)3and the Nagoya Protocol

on Access to Genetic Resources and the Equitable and

Fair Sharing of Benefits Arising from Utilization to the

CBD.4Different from the CBD and the Nagoya Protocol,

the Treaty takes a multilateral approach, through the

Multilateral System of Access and Benefit Sharing

(the MLS), to address the issue of access to PGRFA and

sharing benefits arising out of their use.

The MLS represents a special ABS regime that aims to

facilitate access to genetic resources of major food crops

and forage species and to share, in a fair and equitable

way, the benefits arising from the utilization of these

resources in accordance with multilaterally agreed

terms and conditions. The Contracting Parties agree to

take necessary legal or other appropriate measures to

provide facilitated access through the MLS to other

Contracting Parties and to legal and natural persons

under their jurisdiction. Facilitated access is provided

pursuant to a standard material transfer agreement

that contains multilaterally agreed terms and condi-

tions on access and monetary benefit-sharing.5The

MLS automatically includes all PGRFA listed in Annex

1 that are under the management and control of the

Contracting Parties and in the public domain. The MLS

also includes PGRFA listed in Annex 1 that are held by

the CGIAR centres,6or by other entities that have vol-

untarily included them in the MLS. The Contracting

1Such disagreements mainly involve the legal ownership of genetic

resources and intellectual property issues in the context of the ABS

and the monitoring of uses of genetic resources. See L. Glowka et al.,

A Guide to the Convention on Biological Diversity, IUCN Environmen-

tal Policy and Law Paper 30 (IUCN, 1994), at 5–6; H.D. Cooper,

‘The International Treaty on Plant Genetic Resources for Food and

Agriculture’, 11:1 Review of European Community and International

Environmental Law (2002), at 4–11; M. Buck and C. Hamilton, ‘The

Nagoya Protocol on Access to Genetic Resources and the Fair and

Equitable Sharing of Benef‌it Arising from their Utilization to the Con-

vention on Biological Diversity’, 20:1 Review of European Community

and International Environmental Law (2011), at 50–54.

2Convention on Biological Diversity (Rio de Janeiro, 5 June 1992).

3International Treaty on Plant Genetic Resources for Food and Agri-

culture (Rome, 3 December 2001).

4Nagoya Protocol on Access to Genetic Resources and the Fair

and Equitable Sharing of Benef‌it Arising from their Utilization to the

Convention on Biological Diversity (Nagoya, 30 October 2011).

5International Treaty on Plant Genetic Resources for Food and Agri-

culture, n. 3 above, Articles 12.2 and 12.4.

6The Consultative Group on International Agricultural Research

(CGIAR) is an informal association, founded in 1971, whose mission

is to contribute to food security and poverty eradication in developing

countries through research, partnerships, capacity-building and

policy support, promoting sustainable agricultural development based

on the environmentally sound management of natural resources. The

CGIAR supports an international network of sixteen international

agricultural research centres (IARCs), which include the Bioversity

International, the International Rice Research Institute, the Interna-

tional Maize and Wheat Improvement Centre and the International

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Review of European Community & International Environmental Law

RECIEL 21 (2) 2012. ISSN 0962 8797

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