Key legal challenges and opportunities in the implementation of the Nagoya Protocol: The case of China

• Author: Xiaoou Zheng
• Date: 01 July 2019
• Published date: 01 July 2019
• DOI: http://doi.org/10.1111/reel.12282

ORIGINAL ARTICLE

Key legal challenges and opportunities in the implementation

of the Nagoya Protocol: The case of China

Xiaoou Zheng

Correspondence

Email: xiaoou.zheng@ed.ac.uk Since the Nagoya Protocol entered into force in 2014, the process of transposing

international access and benefit‐sharing (ABS) standards into domestic contexts has

been intensified in many countries. China became a party to the Nagoya Protocol in

2016. Being one of the mega‐biodiverse countries in the world, China nevertheless

remains little known to international legal scholars of ABS‐related laws and regula-

tions. This article aims to navigate this uncharted territory and examine the key legal

challenges and opportunities in the process of implementing the Nagoya Protocol in

China. Challenges with respect to the definition of key concepts, recognition of

beneficiaries and potential approaches to benefit‐sharing are analysed in turn.

Opportunities are investigated from both legal and institutional perspectives. The

article proposes an integrated approach to legislate ABS under a comprehensive

framework on biodiversity in order to sufficiently address the complexity and

uniqueness of the Chinese national circumstances.

1

|

INTRODUCTION

The Convention on Biological Diversity (CBD) has been the most

prominent international framework to address issues related to

global biodiversity since 1992.

1

The threefold objectives of the

CBD stress the importance of not only the conservation of biodi-

versity and sustainable use of its components, but also the fair

and equitable sharing of benefits derived from the utilization of

genetic resources.

2

In particular, its Articles 15 and 8(j) provide

guiding principles and preliminary procedural requirements for

access and benefit‐sharing (ABS) with respect to genetic

resources (GR) and traditional knowledge (TK), including prior

informed consent (PIC), mutually agreed terms, respect for TK,

and fair and equitable benefit‐sharing. Built upon the related pro-

visions of the CBD, the Nagoya Protocol on Access to Genetic

Resources and the Fair and Equitable Sharing of Benefits Arising

from their Utilization

3

was adopted in 2010 at the tenth Confer-

ence of the Parties to the CBD after lengthy negotiations, and

entered into force in 2014.

4

It aimed to effectively implement

especially the third objective of the CBD,

5

by elaborating on State

parties’obligations and rights with respect to ABS. In a nutshell,

the parties are obliged to establish appropriate legislative, adminis-

trative or policy measures to ensure that prior PIC is obtained for

access and that mutually agreed terms (MAT) are negotiated for

fair and equitable sharing of benefits with the providing countries,

and/or the indigenous and local communities (ILCs) who hold GR

and associated TK.

6

Meanwhile, providing countries are entitled to

----------------------------------------------------------------------------------------------------------------------------------------------------------------------

This is an open access article under the terms of the Creative Commons Attribution‐NonCommercial License, which permits use, distribution and reproduction in

any medium, provided the original work is properly cited and is not used for commercial purposes.

© 2019 The Author. Review of European, Comparative & International Environmental Law Published by John Wiley & Sons Ltd.

1

Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December

1993) 1760 UNTS 79 (CBD).

2

ibid art 1.

3

Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of

Benefits Arising from their Utilization (adopted 29 October 2010, entered into force 12

October 2014) <https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf>(Nagoya

Protocol).

4

L Wallbott, F Wolff and J Pozarowska, ‘The Negotiations of the Nagoya Protocol: Issues,

Coalitions and Process’in S Oberthür and GK Rosendal (eds), Global Governance of Genetic

Resources: Access and Benefit Sharing after the Nagoya Protocol (Routledge 2014) 33.

5

MW Tvedt and TR Young, ‘Beyond Access: Exploring Implementation of the Fair and

Equitable Sharing Commitment in the CBD’(International Union for Conservation of Nature

(IUCN) 2007).

6

Nagoya Protocol (n 3) arts 5–7.

DOI: 10.1111/reel.12282

RECIEL. 2019;28:175–184. wileyonlinelibrary.com/journal/reel

|

175