Towards a fair and equitable abs regime: is Nagoya leading us in the right direction?

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Abstract

A historical overview of the concept of Access and Benefit Sharing (ABS) suggests that ABS is all about compensation, i.e. a benefit sharing mechanism that provides one with compensation for allowing access to one’s resources. The principles of entitlement (based on sovereign rights) and desert (based on contributions) may then guide a fair and equitable sharing of the resources in question. Yet, the principles of need and equity appear equally important, as it is exactly because of the inequalities and neediness in the world that the demand for benefit sharing as a compensation mechanism has evolved. Unfortunately, we have to conclude that, for several reasons, the current bilateral exchange model of the Convention on Biological Diversity (CBD) can never be fair and equitable. While the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) bypasses some of the main problems that frustrate fair and equitable benefit sharing under the CBD, it is currently being criticised for its weak benefit-sharing component. This article therefore proposes an alternative ABS regime based on the utilisation of resources instead of their exchange. One of the main advantages of such a model – apart from the fact that it does not depend on controlling the movement of plant genetic resources – is that it emphasises the responsibilities for benefit sharing on the user side. This article analyses whether the Nagoya Protocol is leading us in the right direction and, with the aforementioned principles of justice in mind, makes recommendations on how to realise a fair and equitable ABS regime.
Original languageEnglish
Pages (from-to)241-255
JournalLaw, Environment & Development Journal
Volume9
Issue number2
Publication statusPublished - 2013

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