Abstract
The Nagoya Protocol on Access and Benefit-sharing is the latest protocol to the Convention on Biological Diversity (CBD). Its implementation can lead to two fundamentally different processes: a market-oriented self-regulatory approach, which emphasizes the self-regulating capacity of the economic actors involved, or a normative institutionalist approach, which focuses on the norms and formal rules of institutions that not only support and frame, but also shape and constrain the actions of the players acting within them. This paper analyzes the challenges related to the implementation of the Nagoya Protocol in the specific case of Belgium, and evaluates the possibility of moving from a self-regulatory to an institutional approach of implementation, which we argue is necessary to achieve the objectives of the Protocol. This move is analyzed in the specific multi-level governance context characterizing the Nagoya Protocol, which has a natural tendency towards a market-oriented self-regulatory approach.
Highlights
The Nagoya Protocol on Access and Benefit-sharing, or ABS, is the latest protocol to the Convention on Biological Diversity (CBD)
The Nagoya Protocol is the main instrument for the protection of genetic resources and traditional knowledge, misappropriation by patents granted in violation of the legislation of the providing country are to be covered by the WIPO and the World Trade Organization (WTO)’s Trade Related Aspects of Intellectual Property Rights (TRIPS)
We have argued in this paper that a simple facilitation of a market for genetic resources is doomed to fall short of achieving the objectives of the Nagoya Protocol
Summary
The Nagoya Protocol on Access and Benefit-sharing, or ABS, is the latest protocol to the Convention on Biological Diversity (CBD). In order to achieve the objectives of the Nagoya Protocol, the aim of this form of regulation is to create a level playing field, which is both legal and international, to facilitate access to genetic resources, thereby fostering the creation of global exchanges based on private contracts between users and providers of genetic resources In this regard, the main goal of the coordination between the different actors is to contribute to the standardization of the procedures that can govern the market for genetic resources, while taking into account some specific needs of particular sectors such as the research sector, the agricultural sector or the exchange of pathogens in the context of pandemic prevention and cure. This simple facilitation of a market of genetic resources is doomed to fall short of achieving the objectives of the Protocol, as “commercial mechanisms leave very little room to incorporate broader, social goals, such as securing human needs and equity” and protecting the environment [18,48,49,50]
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