Over the years, researchers in public institutions and universities have accessed genetic materials from a variety of sources, freely exchanged them with fellow researchers and institutions and shared their research results with foreign and local collaborators. The 2010 Nagoya Protocol regulating access to genetic resources is set to change this scenario. This treaty requires country parties to put in place enhanced ABS measures regulating access to their genetic resources and to provide for the sharing of benefits arising from their utilization. These measures include minimum access standards, mandatory prior informed consent of indigenous and local communities, compliance with the domestic laws or requirements of the provider country and monitoring the utilization of genetic resources. This is aimed at commercial research. Non-commercial public research which contributes to the conservation and sustainable use of biological diversity is encouraged, particularly in developing countries, through simplified measures. There are undoubtedly practical challenges in operationalizing this provision without impeding research in the sector most potentially affected by ABS measures. This article presents the results of a survey of the practices of such researchers in one developing country, namely Malaysia. It examines the potential implications for the national implementation of the Protocol. Given country specificities, this study highlights and shows the importance of increasing knowledge about existing practices for an efficient design and implementation by developing countries of a complex legislation such as the Nagoya ABS Protocol.
This is a preview of subscription content, access via your institution.
Buy single article
Instant access to the full article PDF.
Tax calculation will be finalised during checkout.
Subscribe to journal
Immediate online access to all issues from 2019. Subscription will auto renew annually.
Tax calculation will be finalised during checkout.
Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, adopted in Nagoya in October 2010, entered into force on 12 October 2014.
Sectors are broadly defined—such as agriculture; within this, the subsectors would include: plant, forestry, animal, marine and micro-organisms.
The tangible indicators differentiating commercial from non-commercial research were identified by non-commercial researchers at a workshop at Bonn in 2009: UNEP/CBD/WG-ABS/7/INF/6.
The Africa Group, for example, proposed that there be no distinction between commercial and non-commercial research (Nijar and Gan 2012). The European Union and Australia, a member of JUSCANZ (comprising Japan, the USA, Canada, Australia and New Zealand), proposed simplified access rules for non-commercial research, highlighting the danger of a restrictive ABS regime impeding research: ibid, at pp. 195, 196, 210. The Like-Minded Megadiverse Countries took a middle position. This group, comprising developing countries, agreed to simplified procedures for pure scientific research provided proper protective measures were included to safeguard situations where there was a change of use. It also advocated creating conditions to promote non-commercial biodiversity-related research which contributes to the conservation and sustainable use of biological diversity, especially in developing countries: ibid. at 224.
See discussion of the options, Dedeurwaerdere et al. (2013).
One such arrangement is with the beverage multinational, Pepsico: communication with the Director, SBC, 2015.
See EPU Regulations for the Conduct of Research in Malaysia (1999). General Circular No. 3, Sect. 7.6.
This was 29 % out of a sample of 169 researchers actively involved in exchanging material.
The Indian Biological Diversity Act, 2002 seeks to combine the two considerations. Its article 2(e) states: ‘commercial utilization’ means end uses of biological resources for commercial utilization such as drugs, industrial enzymes, food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours, extracts and genes used for improving crops and livestock through genetic intervention, but does not include conventional breeding or traditional practices in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry or bee keeping. For the indicators approach see footnote 1.
Access and Benefit Sharing
Association of Southeast Asian Nations
Convention on biological diversity
Conference of the Parties
Forest Research Institute Malaysia
Intellectual Property Rights
Malaysian Agricultural Research Institution
Material Transfer Agreement
Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization
Prior informed consent
Sarawak Biodiversity Centre
Ad Hoc Open-Ended Working Group on Access and Benefit Sharing. (2009). Report of a workshop on access and benefit-sharing in non-commercial biodiversity research (UNEP/CBD/WG-ABS/7/INF/6). Bonn: CBD.
Dedeurwaerdere, T., Broggiato, A., Louafi, S., Welch, E. W., & Batur, F. (2013). Governing global scientific research commons under the Nagoya Protocol. In E. Morgera, M. Buck, & E. Tsioumani (Eds.), 2010 Nagoya Protocol on access and benefit-sharing in perspective: Implications for international law and implementation challenges (pp. 389–421). Leiden: Brill Nijhoff.
Dedeurwaerdere, T., Melindi-Ghidi, P., & Broggiato, A. (2016). Global scientific research commons under the Nagoya Protocol: Towards a collaborative economy model for the sharing of basic research assets. Environmental Science & Policy, 55, 1–10.
Enserink, M. (2000). Malaysian researchers trace Nipah virus outbreak to bats. Science,. doi:10.1126/science.289.5479.518.
Jinnah, S., & Jungcurt, S. (2009). Global biological resources. Could access requirements stifle your research? Science, 323(5913), 464–465.
Kamau, E. C., Winter, G., & Stoll, P. (Eds.). (2015). Research and development on genetic resources. Public domain approaches in implementing the Nagoya Protocol. Oxon: Routledge.
Laird, S. (Ed.). (2002). Biodiversity and traditional knowledge, equitable partnership in practice (People and plants conservation series). Virgina: Earthscan.
Morgera, E., Buck, M., & Tsioumani, E. (Eds.). (2012). The 2010 Nagoya Protocol on access and benefit-sharing in perspective: Implications for international law and implementation challenges (legal studies on access and benefit-sharing). Dordrecht: Martinus Nijhoff.
Nijar, G. S. (2011). The Nagoya Protocol on access and benefit sharing of genetic resources: Analysis and implementation options for developing countries. Kuala Lumpur: The South Centre and CEBLAW.
Nijar, G., & Gan, P. F. (2012). The Nagoya Protocol: A record of the negotiations. Kuala Lumpur: The Ministry of Natural Resources and Environment, Universiti Malaya and CEBLAW.
Nijar, G. S., Gan, P. F., Lee, Y. H., & Chan, H. Y. (2011). Food security and access and benefit-sharing of genetic resources for food and agriculture. Kuala Lumpur: CEBLAW, South Centre, Unviersiti Malaya.
Ramirez-Villegas, J., Jarvis, A., Fujisaka, S., Hanson, J., & Leibing, C. (2013). Crop and forage genetic resources: International interdependence in the face of climate change. In M. Halewood, I. L. Noriega, & S. Louafi (Eds.), Crop genetic resources as a global commons: Challenges in international law and governance (pp. 78–98). Oxon: Routledge.
Scholz, A. (2004). Merchants of biodiversity: Scientists as Traffickers of plants and institutions. In S. Jasanof & M. L. Matello (Eds.), Earthly politics: Local and global in environmental governance (pp. 217–238). Cambridge, MA: MIT Press.
Secretariat of the Convention on Biological Diversity. (2010) The Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilisation to the convention on biological diversity. https://www.cbd.int/doc/press/2014/pr-2014-10-12-nagoya-protocol-en.pdf. Accessed 29 Sept 2015.
Tvedt, M. W. (2014). Beyond Nagoya. Towards a legally functional system of access and benefit sharing. In S. Oberthür & G. K. Rosendal (Eds.), Global governance of genetic resources: Access and benefit sharing after the Nagoya Protocol (pp. 158–177). London/New York: Routledge.
Von Braun, J., & Virchow, D. (1996). Economic evaluation of biotechnology and biodiversity in developing countries. Agriculture and Rural Development, 3(1), 7–11.
Welch, E. W., Shin, E. J., & Long, J. V. (2013). Potential effects of the Nagoya Protocol on the exchange of non-plant genetic resources for scientific research: Actors, paths, and consequences. Ecological Economics, 86, 136–147.
About this article
Cite this article
Nijar, G.S., Louafi, S. & Welch, E.W. The implementation of the Nagoya ABS Protocol for the research sector: experience and challenges. Int Environ Agreements 17, 607–621 (2017). https://doi.org/10.1007/s10784-016-9328-7
- Nagoya Protocol
- Access and Benefit Sharing (ABS)
- Convention on biological diversity (CBD)
- Genetic resources