The Nagoya Protocol: Fragmentation or Consolidation?

Abstract

Abstract:In October, 2010, a protocol on access and benefit-sharing (ABS) of genetic resources was adopted, the so-called 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. Before the adoption of the Nagoya Protocol, the governance architecture of ABS was already characterized by a multifaceted institutional environment. The use of genetic resources is confronted with many issues (conservation, research and development, intellectual property rights, food security, health issues, climate change) that are governed by different institutions and agreements. The Nagoya Protocol contributes to increased fragmentation. However, the question arises whether this new regulatory framework can help to advance the implementation of the ABS provisions of the Convention on Biological Diversity (CBD). This paper attempts to find an answer to that question by following three analytical steps. First, it analyzes the causes of change against the background of theories of institutional change. Second, it aims to assess the typology of the architecture in order to find out if this new set of rules will contribute to a more synergistic, cooperative or conflictive architecture of ABS governance. Third, the paper looks at the problem of "fit" and identifies criteria that can be used to assess the new ABS governance architecture with regard to its effectiveness.

Digitising biopiracy? The global governance of plant genetic resources in the age of digital sequencing information

“…The Nagoya Protocol was specifically the result of concerns from countries in the Global South that felt the CBD was incomplete by not ensuring compliance with Access and Benefits Sharing (ABS) (see Greiber et al. 2012 ; Richerzhagen 2014 ). For example, under the CBD, benefits accrued from the commercial use of genetic resources ‘may include monetary and non-monetary benefits’ in accordance with domestic laws that govern access and benefits sharing (CBD 2011 , 6).…”

Access to genetic resources and benefit sharing: Implications of Nagoya Protocol on providers and users

“…Intellectual property rights (IPRs) are critical to any ABS regime, as most R&D based on genetic resources and associated traditional knowledge (TK) will eventually be subject to intellectual property rights (IPRs), usually through patents (Access and Benefit Sharing [ABS], n.d.; Richerzhagen, , p. 135, 145). However, the Protocol has failed to respect and recognise IPRs in its ABS framework by not providing any provision that attempts to preclude the grant of erroneous patents where alleged inventions are derived from traditional knowledge (TK).…”

“…Hence, it was in their interests to establish better compliance mechanisms. To some extent, the Protocol addressed this issue through the introduction of Articles 15–18, but it is ineffective in relation to the level of compliance as it fails to specify any measures other than a qualification that compliance must be appropriate, effective and proportionate (Rabitz, , p. 30, 38; Richerzhagen, , p. 131, 146). In practice, user states and private companies seek the largest return from their investment and therefore lack the incentive to enforce benefit‐sharing objectives (Tvedt, ).…”

“…Many of their proposals were rejected by developed states and, consequently, were never included in the final text of the Protocol. The market conditions and lower socio‐economic environment of developing states, most of which are provider states (as stated above), puts them in a weaker position, especially when the market is dominated by a small number of large‐scale user states (Richerzhagen, ). This was not unnoticed in the Protocol negotiation, as reflected by the responses of a number of provider state delegations during the consultation process, such as those from African, Central European, Eastern European and South American states expressing their doubts on record about the effectiveness of the Protocol (International Institute for Sustainable Development, , p. 29).…”

“…The adoption of the Nagoya Protocol spanned over eight years of negotiations and intense disagreement between developed countries (users) and developing countries (providers), given the fact that developed (i.e. industrialised) countries had placed more emphasis on facilitated access, whereas developing countries stressed the need for a better mechanism to recognise benefit sharing and compliance (Richerzhagen, ).…”