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Abdul Haseeb Ansari; Lekha Laxman, A Review of the
International Framework for Access and Benefit Sharing
of Genetic Resources with Special Reference to the
Nagoya Protocol, 16 Asia Pac. J. Envtl. L. 105
(2013)
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A Review of the International
Framework for Access and Benefit
Sharing of Genetic Resources with
Special Reference to the
Nagoya Protocol
Abdul Haseeb Ansari and

Lekha Laxman*
Abstract
The effective implementation of the Convention on Biological Diversity's
objective of 'fair and equitable sharing of the benefits arising out of the
utilization of genetic resources' is vital for the realisation of its two other
objectives: 'the conservation of biological diversity' and 'the sustainable
use of its components'. 'Green developmentalism' through the application
of market instruments to nature is expected to impede the loss of global
biodiversity. The Nagoya Protocol on Access and Benefit Sharing of
Genetic Resources is also premised upon the idea that market instruments
can achieve optimal allocation of the benefits of nature. This article
revisits the road of access and benefit sharing from the Convention on
Biological Diversity to the Nagoya Protocol. It includes a preliminary
overview of the provisions of the Nagoya Protocol and the risks
associated with 'commodification of nature' in addressing global
inequalities arising from uneven markets. The article also explores
measures that can be jointly undertaken by the global community to
ensure that access and benefit sharing of genetic resources is undertaken
in a fair and equitable manner.
I. Introduction
During the past several decades, the global community has witnessed mounting
efforts by supranational environmental institutions, such as the Convention on
Abdul Haseeb Ansari is Professor, Ahmad Ibrahim Faculty of Laws, International Islamic
University Malaysia, Malaysia. Email: ahaseeb@iium.edu.my. Lekha Laxman is Senior
Lecturer, Faculty of Management and Human Resource Development, Universiti Teknologi
Malaysia, Malaysia. Email: lekha@utm.my. This article is based on a paper presented at the
Eighth International Conference on Emerging Concerns in International Public Law, New Delhi,
India, 23-25 February 2012.
ASIA PACIFIC JOURNAL OF ENVIRONMENTAL LAW
BiologicalDiversity,' to regulate the international flow of genetic resources and,

more specifically, to develop mechanism(s) for access and benefit sharing
('ABS') with a view to achieving 'significant and lasting improvements in the
downward biodiversity 2 trend'. 3 The existing pool of genetic resources is
eroding rapidly mainly due to globalisation, habitat loss and fragmentation, alien
species introduction, global warming, overharvesting of flora and fauna, climate
change, pollution, and tourism.4 Other contributing factors are industrialisation,
loss of indigenous knowledge, widespread use of simple variety crops, and lack
of gene banks.5 The greatest of these threats, particularly in tropical developing
countries, are the destruction and deterioration of habitats, and the introduction
of exotic species. 6 All of these factors threaten not only the sustainability of
global biodiversity, but also the sustainability of cultural diversity.7 In addition,
the ongoing evolution of the knowledge base of life sciences and biotechnology
has resulted in new applications in healthcare, agriculture and food production,
and environmental protection, as well as new scientific discoveries. These
developments have greatly boosted the 'potential utility areas of the world's
genetic resources', the 'economic interests linked to these resources' and trade
1 Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered
into force 29 December 1993) ('CBD').
2 According to art 2 of the CBD, biological diversity is the 'variability among living organisms
from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the
ecological complexes of which they are part; this includes diversity within species, between
species and of ecosystems'. Note that these 'ecological complexes' include 'diversity within
species, between species and of ecosystems' and correlate to three hierarchical categories of
living systems: genetic diversity, which is the variation of genes within a species; species
diversity, which is the variety of species - plants and animals, including fungi and
microorganisms - within a region; and ecosystem diversity, which is the variety of ecosystems
within a region. In essence, 'biodiversity is life', since it comprises 'a variety of world's
organisms, including their genetic makeup and the communities they form' and hence is a
storehouse of rich natural resources: Christopher J Hunter, 'Sustainable Bioprospecting: Using
Private Contracts and International Legal Principles and Policies to Conserve Raw Medicinal
Materials' (1997) 25 Boston College EnvironmentalAffairs Review 129, 133.
Netherlands Environmental Assessment Agency, 'Rethinking Global Biodiversity Strategies:
Exploring Structural Changes in Production and Consumption to Reduce Biodiversity Loss'
(2010) PBL <http://www.pbl.nl/sites/default/files/cms/publicaties/500197001.pdf>.
4 Michael I Jeffery, Jeremy Firestone and Karen Bubna-Litic (eds), Biodiversity Conservation,
Law + Livelihoods: Bridging the North-South Divide (Cambridge University Press, 2008) 1.
5 Abdul Haseeb Ansari, 'The Convention on Biological Diversity: A Critical Appraisal with
Special Reference to Malaysia' (2000) 40 Indian Journal ofInternational Law 137.
6 Klaus Ammann, 'The Impact of Agricultural Biotechnology on Biodiversity: A Review'
(23 August 2004), 3 <http://www.ask-force.org/web/Biotech-Biodiv/Report-Biodiv-
Biotechl2.pdf>.
Cultural diversity irrefutably is a 'powerful guarantee of biodiversity' given that 'human action
with respect to the environment, including management itself, is a social act and an expression of
culture': UNESCO and UNEP, 'Cultural Diversity and Biodiversity for Sustainable
Development' (January 2003), 8 <http://unesdoc.unesco.org/images/0013/001322/132262e.pdf>;
see also Jeffery et al, above n 4, 1.
G Kristin Rosendal, 'The Convention on Biological Diversity: Tensions with the WTO TRIPS
Agreement over Access to Genetic Resources and the Sharing of Benefits' in Sebastian Oberthtir
and Thomas Gehring (eds), Institutional Interaction in Global in Global Environmental
Governance: Synergy and Conflict among Internationaland EU Policies (Massachusetts MIT
Press, 2006) 79, 79.
106
FRAMEWORK FOR ACCESS AND BENEFIT SHARING OF GENETIC RESOURCES
in these resources. This is evidenced by the use of the term 'genetic resources' 9
in the CBD, which describes 'the conception of its economic value triggered by
progress in genetic engineering technology'.10
Biodiversity prospecting (or bioprospecting), which is the exploration of
biodiversity for commercially valuable genetic and biochemical resources," has
been on an upward trend. The role of exchange of knowledge of biodiversity
issues between users and providers of genetic resources became pronounced,
with the former seeking traditional and indigenous knowledge associated with
genetic resources and the latter securing the transfer of technological knowledge.
The net effect of these developments is observed in the form of 'enhanced
interest in intellectual property rights and access in genetic resources and the
associated technologies'. 12 This is not necessarily bad, except that biodiversity
hotspots that are rich in genetic diversity are concentrated in the tropical regions
of the south.13 However, technological and economic capacity to exploit the
genetic variability with the assistance of intellectual property rights is primarily
found in the developed nations of the north.14
Additionally, as the patenting of life forms became a possibility from the
early 1980s in the Unites States and Europe, the issue of access and benefits
sharing gained momentum in the international law arena. 15 Considerable profits
were generated on a global scale from pharmaceutical, genetic modification and
biochemical activities carried out by giant, transnational corporations ('gene
giants') located in the north 'without significant return to the source country'.
'Biopiracy' 17 was increasingly viewed as a 'symbol of North/South inequities'. 18
Well-known cases, such as the patenting of the components of the Indian neem
9 CBD art 2 defines genetic resources as 'genetic material of actual or potential value' and genetic
material as 'any material of plant, animal, microbial or other origin containing functional units of
heredity'.
10 Sylvia I Martinez and Susette Biber-Klemm, 'Scientists - Take Action for Access to
Biodiversity' (2010) 2 Current Opinion in Environmental Sustainability 1, CBD, 2
<http://www.cbd.int/abs/doc/implications-abs-academic-research-en.pdf>.
11 Walter Reid et al, 'A New Lease on Life' in Walt Reid et al (eds), Biodiversity Prospecting:
Using Genetic Resources for Sustainable Development (World Resources Institute, 1993).
12 Ibid.
13 Ibid 81.
14 Ibid.
15 Corinna Heineke and Franziska Wolff, 'Access to Genetic Resources and the Sharing of
Benefits: Private Rights or Shared Use for Biodiversity Conservation' (2004) 2 Environmental
Law Network International26.
16 Morten Wallpe Tvedt and Tommy Young, 'Beyond Access: Exploring Implementation of the
Fair and Equitable Sharing Commitment in the CBD' (2007) IUCN Environmental Policy and
Law PaperNo 67/2 <http://www.cbd.int/doc/books/2009/B-03177.pdf>.
17 'From a biological perspective, the term "biopiracy" has been used to characterize cases of
misappropriation of human or plant genetic material with potential agricultural, pharmaceutical
or cosmetic usages': Chris Hamilton, '"Biopiracy" as a Challenge to Intellectual Property Rights
Systems' (2006) 49(4) Development 94, 96.
Frangoise Burhenne-Guilmin, 'Biodiversity and International Law: Historical Perspectives and
Present Challenges: Where Do We Come From, Where Are We Going' in Michael I Jeffery,
Jeremy Firestone and Karen Bubna-Litic (eds), Biodiversity Conservation,Law + Livelihoods:
Bridging the North-South Divide (Cambridge University Press, 2008) 26, 31.
107
tree or of the Ayahuasca plant sacred to the indigenous people of the Amazon
basin, highlighted the discrepancies in the structures of knowledge systems. 19
The genetic materials and the ideas regarding their use flowed freely from the
south to the north due to the concepts of 'free access' and 'common heritage', in
contrast with ideas from the north, which were zealously guarded via intellectual
property rights even when they originated from the 'indigenous knowledge of the
Third World farmers and herbalists'. 20
These developments led to discontent in the south, leading to the eventual
demise of the 'common heritage of mankind' concept and the move towards 'an
obligation erga ornnes' 21 that gave way to that of 'common concern of
humanity'; that is, 'a concurrent responsibility of each member of the
community to conserve its own biological diversity' in response to the sovereign
rights accorded to states over their natural resources. 22 Similarly, the concept of
'common but differentiated responsibilities' among states was 'incorporated in
all global environmental conventions' from the late 1980s, thereby introducing
the notion of equity into the CBD's implementation. 23 The CBD became a
symbol of hope and its ABS mechanism the chosen strategy to even out global
inequalities while generating revenues that help biodiversity-rich countries of the
south to conserve their biological diversity.
Several targets have been set to address the changing state of biodiversity,
ecosystems and humanity's consumption of natural resources. First, the Strategic
Plan of the Convention on Biological Diversity undertaken during the CBD's
Sixth Meeting of the Conference of the Parties ('COP 6') in 2002 had set the
target 'to achieve by 2010 a significant reduction of the current rate of
biodiversity loss at the global, regional and national level as a contribution to
poverty alleviation and to the benefit of all life on Earth' .24 This target was
subsequently endorsed by the World Summit on Sustainable Development as
well as the United Nations General Assembly, and it was eventually incorporated
as a new target under Millennium Development Goal 7.B. 25 Second, Millennium
19 See Heineke and Wolff, above n 15, 27.

20 James 0 Odek, 'Biopiracy: Creating Proprietary Rights in Plant Genetic Resources' citing
Vandana Shiva (1994-1995) 2 Journal of Intellectual PropertyLaw 141, 149.
21 'Erga omnes' is another Latin concept which means 'towards all', referring to 'a category
of
international obligations owed by states to the international community as a whole, intended to
protect and promote the basic values and common interests of all': Maurizio Ragazzi,
The Concept of InternationalObligationsErga Omnes (Clarendon Press, 2000).
22 See Burhenne-Guilmin, above n 18, 31 2.
23 Ibid 31.
24 Note by the Executive Secretary, 'Synergies and Cooperation - A Status Report on Activities
Promoting Synergies and Cooperation between Multilateral Environmental Agreements, in
Particular Biodiversity-Related Conventions, and Related Mechanisms', Regional Workshop for
Africa on Synergy among the Rio Conventions and Other Biodiversity-Related Conventions in
Implementing the Programmes of Work on Dry and Sub-Humid Lands and Agricultural
Diversity, Provisional Agenda Item 3.1, UN Doc UNEP/CBD/WS-Syn.Afr/1/INF/1 (31 August
2004) 21 <https://www.cbd.int/doc/meetings/agr/wsagdl-01/information/wsagdl-01-inf-01-
en.pdf>.
25 See 2010 Biodiversity Target (2010) CBD <http://www.cbd.int/2010-target/>. Note that
Millennium Development Goal 7 is to ensure environmental sustainability. The global target 'to
108
Development Goal 7.A had set the target to 'integrate the principles of
sustainable development into country policies and programmes and reverse the
loss of environmental resources' .26 Unfortunately, upon reviewing all available
evidence 27 (including national reports submitted by parties), the Global
Biodiversity Outlook 3 concluded that the 2010 target has not been met: the facts
and figures within said report reveal 'multiple indications of continuing decline
in biodiversity in all three of its main components - genes, species and
,28
ecosystems'.
It is important to note that the framework of indicators adopted by the
CBD to analyse whether the 2010 target was met did not include measures
relating to the status of access and benefit sharing. 29 Nevertheless, it is apparent
that this loss has dire implications for the current and future wellbeing of humans
and other inhabitants of this planet. We need to look for innovative approaches
and work cohesively to achieve our shared global objectives. Maurice Strong
poses the challenge confronting humankind: environmental problems are global
and demand a global response. However, international law alone cannot solve
global environmental problems. Political boundaries dictate that the response to
these problems must primarily be implemented by each country within the
international community. International law may have an important catalytic
effect and may establish norms of conduct, but, without implementation of such
rules and norms at domestic or municipal level, it will be ineffective in achieving
the goals of environmental protection. Conversely, domestic laws will be
ineffective in addressing transboundary environmental impacts without
overarching international laws. A symbiotic relationship exists between
international and domestic laws, and the harmonisation of the two legal regimes
is advantageous and necessary to both.
In this article, we examine the globalisation and harmonisation of
environmental law that has occurred and that is likely to continue to occur. In
part II, we summarise ways in which there has been a growth of international
environmental law, of domestic environmental laws of countries throughout the
world, and of international institutions, resulting in the globalisation of
environmental law. In part III, we discuss the ways in which there has been a
achieve by 2010 a significant reduction of the current rate of biodiversity loss' was agreed to by
the 188 government Parties to the Convention on Biological Diversity in April 2002 (Decision
VI/26): GM Mace and J E M Baillie, 'The 2010 Biodiversity Indicators: Challenges for Science
and Policy' (2007) 21(6) Conservation Biology 1406, 1407.
26 See Goal 7: Ensure Environmental Sustainability (2013) UN <http://www.un.org/
millenniumgoals/environ.shtml>.
27 It is important to note that the framework adopted by CBD in 2006 - consisting of 22 cross-
disciplinary headline indicators - to measure progress (that is, biodiversity loss at the level of
genes, populations, species and ecosystems) toward the target at a global level is also utilised by
countries to report national-level progress and applied in regional initiatives as well: M Walpole
et al, 'Tracking Progress Toward the 2010 Biodiversity Target and Beyond' (18 September
2009) 325(5947) Science 1503.
28 Secretariat of the Convention on Biological Diversity, 'Global Biodiversity Outlook 3' (2010)
CBD, 3 <http://www.cbd.int/doc/publications/gbo/gbo3-final-en.pdf>.
29 M Walpole et al, above n 27, 1503.
109
harmonisation between international environmental law and domestic

environmental law, as well as between the domestic environmental laws of
countries. Harmonisation has occurred by international law influencing domestic
law, domestic law influencing international law, and the sharing and adoption of
domestic laws between countries. In part IV, we predict that the process of
globalisation and harmonisation of environmental law will continue, facilitated
by three initiatives. These are the need for global environmental institutions for
greater governance; reduction of overlap of multilateral environmental
agreements ('MEAs') and improved coordination of the activities of
international organisations; and synthesis of international environmental law
with other areas of international environmental law.
A. Current approaches to saving earth's biodiversity

The importance of addressing biodiversity loss is indisputable irrespective of
opinions regarding the proper relationship between humanity and nature, be it
anthropocentric, ecocentric or naturocentric. 30 Legal systems influenced by the
western legal tradition generally have difficulty in 'recognizing and protecting
the collective interest in nature' due to the fact that 'the environment, nature and
biodiversity exist only as the subject matter of rules of law with no independent
existence or status themselves'. 3 ' Ian McHarg has attributed it to 'the implicit
attitude of western man to nature and environment' where 'man is given
dominion over all creatures and things', 32 in contrast to the oriental approach
where man is merely assigned the role of a trustee or steward over earth's
resources. 33
Aldo Leopold forecasted in 1948 that our conservation efforts will not be
able to achieve their ends due to its 'incompatibility with our 'Abrahamic
concept' of land - land is considered as a commodity belonging to man, thereby
resulting in activities that abuse it. 34 This begs the question: will
30 'Naturocentric approach' to environmental protection originates in the demand for nature

conservation arising from biocentrism, which regards respect for nature in the same way as
anthropocentrism regards respect for people. The former approach is premised on an intrinsic
value view of nature where the idea of natural rights is extended to all life forms and eco-
systems that have a right not be harmed. The 'anthropocentric approach', in contrast, is the
modern world view founded upon 'dualism and materialism that regards humankind as being
separate from nature, which is simply a resource for human use'. 'Ecocentric approach' employs
a milder version of biocentrism based on 'shallow ecology', as opposed to the 'deep ecology'
employed in the naturocentric approach, which requires 'change in attitudes and the development
of ecological consciousness': Michael W Fox, Bringing Life to Ethics: Global Bioethics for a
Humane Society (State University of New York Press, 2001) 43.
31 D E Fisher, 'Legal and Paralegal Rules for Biodiversity Conservation: A Sequence of
Conceptual, Linguistic, and Legal Challenges' in Michael I Jeffery, Jeremy Firestone and Karen
Bubna-Litic (eds), Biodiversity Conservation, Law + Livelihoods: Bridging the North-South
Divide (Cambridge University Press, 2008) 94, 96-7.
32 Ibid 95-6 citing Ian McHarg, 'Values, Process and Form' in The Fitness ofMan's Environment
(Smithsonian Institution Press, 1968) 213.
33 Fisher, above n 31, 96. Religions such as Islam and Buddhism typically relegate man to the role
of trustee or steward.
34 Ibid 100.
110
commodification of nature as prescribed under the CBD result in the same

outcome? Such a 'Eurocentric, individualistic understanding of property' further
ignores the 'collective labor of generations' 35 and the notion of communal
ownership.
In the recent past, 'the notion of trusteeship, or stewardship coupled with
an ethic of conservation' has become integral to the environmental legal system,
but this evolution was by no means easy. 36 The United Nations Millennium
Declarationcalled for 'Respect for Nature' as one of the 'fundamental values for
humanity' and urged 'prudence to be shown in the management of all living
species and natural resources, in accordance with the precepts of sustainable
development' .3 The Declaration typically employs utilitarian and
anthropocentric approaches in safeguarding nature (as do most environmental
policies by either focusing on protecting the human environment for the present
and/or conserving resources for future generations). Yet such approaches have
somehow not produced the desired outcome of halting biodiversity loss.
A paradigm shift is warranted to avert potential crises of global proportions in
view of the finding that 'the principal pressures leading to biodiversity loss are
not just constant but are, in some cases, intensifying', with the poor being the
first and most severely affected. 38 Such a shift will require legal systems to move
from the 'recognition of private interests in land' towards 'recognition of
collective interests in nature' and preferably 'recognition of the interest in nature
itself.' 3 9 The fact remains that the universal relevance of biological diversity
necessitates the safeguarding of the collective biological diversity, as its
protection is a fundamental part of efforts to ensure a thriving and healthy
environment for present and future generations of human beings and all other
living species on this planet.40
It is believed that a new approach prescribed by the CBD and the World
Bank referred to by Kathleen McAfee as 'green developmentalism' 41 will pave
the way for a healthier biodiversity and more sustainable development practices.
This is achieved by promoting 'commodification of nature' 4 2 as the key to both
conservation and the 'equitable sharing of benefits of nature' with market
solutions provided to address global-scale environmental degradation through
35 See Odek, above n 20, 155.

36 See Fisher, above n 31, 96
3 UNESCO and UNEP (2003), above n 7, 7.
38 Secretariat of the Convention on Biological Diversity, above n 28, 5.
39 Ibid; see also Fisher, above n 31, 100.
40 'Macquarie Statement: Statement of the Third Colloquium of the IUCN Academy of
Environmental Law' in Michael I Jeffery, Jeremy Firestone, Karen Bubna-Litic (eds),
Biodiversity Conservation, Law + Livelihoods: Bridging the North-South Divide (Cambridge
University Press, 2008) xiii.
41 Kathleen McAfee, 'Selling Nature to Save It? Biodiversity and Green Developmentalism' (1999)
17(2) Environment and PlanningD: Society and Space 133-154, 134.
42 Nature and ecosystems are 'reconstructed as commodities, reduced to fungible components' and
'assigned monetary prices' that are 'calculated with reference to actual or hypothetical markets
to those components': ibid.
111
the application of 'post neo-liberal version of environmental economics' . In

fact, it was noted in the Global Biodiversity Outlook 3 that many countries had
already 'factored natural capital into some areas of economic and social life with
important returns' but 'a rapid and sustained scaling up of these efforts' was
suggested.44 The underlying assumption is that 'mainstreaming the economics of
biodiversity and the multi-trillion dollar services of the ecosystems' to support
development will lead to positive outcomes. 45 However, there are various
drawbacks associated with greening the economy as an approach to sustainable
development, not to mention the strategies that have been utilised to promote it,
particularly due to its neglect of the 'third pillar' 4 6 of sustainable development -
social dimension.47 Some of these limitations will be discussed in the following
sections in the context of current benefit sharing mechanisms in place.
The fact that the international community had failed to meet the global
target of reducing significantly the rate of biodiversity loss by 2010 clearly
indicates there are inherent problems in the effective implementation of the
CBD,48 not to mention a sustained global commitment to carry out its three key
interrelated objectives. Although at the time of writing approximately 178
countries (92 per cent) have developed some form of national biodiversity
strategies and action plans in line with art 6 of the CBD,4 9 the Global
Biodiversity Outlook 3 revealed: (a) insufficiency in the scale of actions to
implement the CBD that adequately address the pressures on biodiversity;
(b) that biodiversity issues were insufficiently integrated into broader policies,
strategies and programs; (c) that funding initiatives rarely prioritised activities
promoting conservation and sustainable use of biodiversity in comparison to
those dealing with infrastructure and industrial developments; (d) that the
designing and planning of developments often ignore biodiversity considerations
and fail to minimise negative impacts on biodiversity and; (e) that underlying
43 Ibid 133.
4 Secretariat of the Convention on Biological Diversity, above n 17, 5.
45 Ibid.
46 Sustainable development is usually made in reference to 'a familiar typology comprising three
pillars: environmental, economic, and social (or sociocultural). These are also known as the three
"Ps" (People, Planet, and Profit) or the three "Es" (Environment, Economy, and Equity)':
Magnus Bostrom, 'A Missing Pillar? Challenges in Theorizing and Practicing Social
Sustainability: Introduction to the Special Issue' (Winter 2012) 8(1) Sustainability: Science,
Practice, & Policy 3.
47 DevelopmentPLUS, Greening the Economy: Where Has the Social Dimension Gone? (12 March
2012) The Forum: Society for International Development <http://www.sidint.net/node/9930>
citing Sarah Cook. Some of the challenges are directed at the key elements of current approaches
to green economy, including:
the valuation and commoditization of nature and its management through market-based trading
mechanisms; the capacity of the current economic system to generate necessary incentives for
sustainable consumption and production patterns; as well as the assumption that poverty eradication
and more equitable development will follow from low-carbon growth provided compensatory or
protective mechanisms are in place to address any negative social consequences.
48 Elisa Morgera and Elsa Tsioumani, 'Yesterday, Today and Tomorrow: Looking Afresh at the
Convention on Biological Diversity', University of Edinburgh, School of Law Working Paper
Series No 2011/21 (22 August 2011).
49 Convention on Biological Diversity, National Biodiversity Strategies and Action Plans
(NBSAPS) (2013) <http://www.cbd.int/nbsap/>.
112
drivers of biodiversity loss (including demographic, economic, technological,

socio-political and cultural pressures) were not significantly addressed. In view
of these findings, considerable attention has been directed towards mobilising
resources for the effective implementation of the CBD and the devising of a
viable international regime for the access and benefits sharing of genetic
resources.
II. Access and Benefit Sharing Experience: From

the CBD to the Nagoya Protocol
Devising an international framework for applicable access and benefits sharing is
extremely challenging given the novelty and innovativeness of the legal concepts
underlying ABS - 'an ownable or devisable legal right or interest in genetic
resources' o and the complex questions that arise and must be addressed by
international law based on rules from, among other things, administrative law,
property law, intellectual property law, environmental law and; contract law.
As such, parties to the CBD would require clarity and a 'legally consistent
understanding regarding the nature of genetic resources and of the rights to own
and use them' in order to successfully facilitate negotiations regarding an
appropriate international regime.52 However, the negotiation process which had
taken place from the point a mandate was established at the seventh meeting of
the Conference of the Parties to the CBD ('COP 7') in 2004 until the Nagoya
Protocol 53 was adopted in 2010 demonstrated the opposite, since 'many issues
remained contentious until the last minute', inducing a bargain to be reached
between provider and user states.54
A. ABS requirements under the CBD

The implementation of an innovative regulatory mechanism such as ABS, 55 as
laid down in the CBD's third objective in art 1, was done with a view to 'alter
50 Tvedt and Young, above n 16, 5.

51 Veit Koester, The Nagoya Protocol on ABS: Ratification by the EU and Its Member States and
Implementation Challenges, Studies No 03/12 (2012) IDDRI, 9 <http://www.iddri.org/
Publications/Collections/Analyses/STUDYO312_VK nagoya%20abs.pdf>.
52 Burhenne-Guilmin, above n 18, 37 citing Carrizosa et al, 'Accessing Biodiversity and Sharing
the Benefits: Lessons from Implementing the Convention on Biological Diversity' (2004) IUCN
Environmental Policy and Law Paper No 54, 287.
53 DecisionAdopted by the Conference of the Parties to the Convention on Biological Diversity at
Its Tenth Meeting, Convention on Biological Diversity, 1 0 h mtg, Agenda Item 3, UN Doc
UNEP/CBD/COP/DEC/X/1 (29 October 2010) annex 1 ('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'), opened for signature 2 February 2011 (not yet in force)
('Nagoya Protocol').
54 Evanson Chege Kamau, Bevis Fedder and Gerd Winter, 'The Nagoya Protocol on Access to
Genetic Resources and Benefit Sharing: What is New and What are the Implications for Provider
and User Countries and the Scientific Community?' (2010) 6/3 Law, Environment and
Development Journal 246, 250.
5s ABS is the fair and equitable sharing of benefits that arise out of the utilisation of genetic
resources, where the redistribution of a share of these benefits is expected to lead to an
appreciation of biodiversity by actors living with the resource on the ground, thereby providing
113
the behavior of actors and stimulate practices that contribute to the conservation
of the planet's biological wealth' 5 and, thus, in the long run halt practices that
jeopardise the conservation and sustainable use of biodiversity. The CBD
employs an equitable approach to promoting biodiversity conservation for
provider countries by 'redirecting benefit flows back to providers' of genetic
resources; and 57 compensating the loss of development with express provisions
for additional contributions from developed nations and increased partnership
between developed and developing nations. 58
Prior to the CBD, access to plant genetic resources was unrestricted and
formalised by the FAO Undertaking on Plant Genetic Resources, which was the
sole legal instrument on genetic resources until the adoption of the CBD.59
A new era of regulating plant genetic resources was ushered in by Agenda 2160
and the CBD, whereby states were accorded sovereign rights over genetic
resources found within their borders. The CBD additionally revolutionised the
process of access to all genetic resources (including for non-food and non-
agricultural uses) by assuming a 'state-oriented centralist approach' in the
control of the resources within their jurisdiction, pursuant to their own
environmental policies and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other states or
of areas beyond the limits of national jurisdiction.62 Principal decision-making
responsibilities for provisions about conservation and sustainable use were also
incentives for its conservation and sustainable use: Fabian Busch and Florian Kern, 'Governing
Biodiversity: The Realisation of Access and Benefit Sharing under the Convention on Biological
Diversity' (University of Roskilde, 2005).
56 Ibid.
Lyle Glowka, 'Enabling the Global Promise of Marine Biotechnology: Challenges and
Opportunities Posed by Emerging Legal Frameworks' (2012) OECD <http://www.oecd.
org/dataoecd/18/51/50571064.pdf>.
5s Michael I Jeffery, 'Biodiversity Conservation in the Context of Sustainable Human
Development: A Call to Action' in Michael I Jeffery, Jeremy Firestone and Karen Bubna-Litic
(eds), Biodiversity Conservation, Law + Livelihoods: Bridging the North-South Divide
(Cambridge University Press, 2008) 69, 75. See also CBD arts 20, 21 and 39 on financial
mechanisms. Article 15 outlines access to genetic resources and art 16 outlines access to and
transfer of technology.
59 Burhenne-Guilmin, above n 18, 36.
60 Report of the United Nations Conference on Environment and Development, Agenda 21,
UN Doc A/CONF.151/26 (Vol 1) (12 August 1992) annex II ('Agenda 21') was one of the three
documents (other than Report of the United Nations Conference on Environment and
Development, UN Doc A/Conf. 151/26 (Vol 1) (12 August 1992) annex I ('Rio Declaration')and
a statement of forest principles) produced in the 1992 Rio Earth Summit in addition to the CBD
and the United Nations Framework Convention on Climate Change, opened for signature 9 May
1992, 1771 UNTS 107 (entered into force 21 March 1994). According to Agenda 21, states 'have
the sovereign right to exploit their own biological resources pursuant to their environmental
policies' as well as the 'duty to conserve diversity and promote sustainable utilization of
biological resources': Odek, above n 20.
61 John Linarelli, 'Trade Related Aspects of Intellectual Property Rights and Biotechnology:
European Aspects' (2002) 6 Singapore Journal of International and Comparative Law 406,
413-14.
62 See CBD arts 3, 15.1.
114
delegated to the national level. 63 Major policies for effective in situ and ex situ
conservation of biological diversity were further delineated in CBD arts 8 and 9
respectively, which 'sought to institute effective decentralization and national
sovereignty over biodiversity'. 64
The definition of 'access and benefit sharing' synthesises two complex
concepts that are 'politically and (to a very limited extent) legally or
contractually linked'. 65 'Access' is considered the responsibility of the provider
country, provider community or individual"6 and where granted shall be on
'mutually agreed terms' regarding legal acquisition, permitted use of genetic
resources, restrictions on supply, benefits sharing etc set out in material transfer
agreements.67 On the other hand, 'benefit sharing' in an ABS transaction is
'founded on the user (private company or entity) to be made legally effective by
the country with jurisdiction over that user', 68 whether such jurisdiction is 'based
on nationality of the user or because the user's activities are occurring within that
country's jurisdiction'. 69 Until recently, various aspects of benefit sharing70 were
negotiated through bilateral contractual agreements between companies or
research institutions mainly located in the north, and the governments of the
south.71 However, increasingly, the terms of access, procedures seeking consent,
and conditions of benefits sharing in the event of commercialisation are
regulated via national ABS legislation, which forms the basis of contractual tools
such as material transfer agreements, research and development agreements,
licence options agreements, know-how licenses, benefit sharing agreements and
structured trust funds.72 Upon signing the relevant agreement, the parties can
61 Jeffery, 'Biodiversity Conservation in the Context of Sustainable Human Development: A Call
to Action', above n 59, 75. The objectives of CBD art 1 include the conservation of biological
diversity and sustainable use of its components, while art 6 assigns responsibility to each party
for the development of national strategies, plans of programs for conservation of biodiversity and
sustainable use of biological resources.
6 Ibid.
66 Ibid.
67 Kerry ten Kate and Sarah A Laird, The Commercial Use of Biodiversity: Access to Genetic
Resources and Benefit-Sharing (Earthscan Publications, 1999) 22.
68 Tvedt and Young, above n 16,
2.
69 Ibid 13.
'o Generally, benefits are to be shared by the provider and the recipient of the material. Benefits
comprise of three categories - public, long-term and short-term - each of which may be
monetary or non-monetary benefits and direct or indirect benefits. Public benefits include
positive impact on human health (direct), promotion of research (indirect) and promotion of
conservation (indirect). Long-term benefits are usually in the form of royalties (direct), milestone
payments (direct), income from cultivation and supply of plant material (direct) - all of which
are in monetary form - as well as access to developed technology (direct). Short-term benefits
take the form of up-front payments (direct), shared research opportunities (direct and indirect),
exchange and repatriation of biological data (direct and indirect), training (direct and indirect),
institutional capacity improvement (direct and indirect), and capacity improvement (direct and
indirect): James S Miller, 'Impact of the Convention on Biological Diversity: The Lessons of
Ten Years of Experience with Models for Equitable Sharing of Benefits' in Charles R McManis
(ed), Biodiversity and the Law: Intellectual Property,Biotechnology and TraditionalKnowledge
(Earthscan Publications, 2007) 58, 60.
71 Heineke and Wolff, above n 15, 27.
72 Ibid 27-8.
115
mutually agree to transfer the benefits several times, for example, when materials
are first transferred; at various stages of research and development process; and
upon successful commercialisation of product.73 Terms can also be stipulated
regarding the 'nature of the benefits' to be shared, as well as the 'basis for
calculating them' . The International Cooperative Biodiversity Groups strongly
recommends that agreements should also clearly stipulate 'the ownership and
compensation terms of first generation and subsequent inventions' . In general,
there has been a lack of consensus on how equitably benefits can be shared,
partly due to the 'lack of a universal approach for estimating the value of access
to biological resources'. 7 6 This has resulted in 'great latitude in estimates of the
value of the contribution of the raw materials', which varies significantly in
different sectors.77
The general principles of the framework for international access and
benefit sharing of genetic resources are predominantly set out in art 15 of the
CBD, with several conditions for access to genetic resources, including
adherence to environmentally sound uses;78 mutually agreed terms;79 prior
informed consent; so and adherence to fair and equitable sharing of the benefits
arising from commercial and other utilisation of genetic resources. The primary
obligation of countries rich in biodiversity, mainly developing nations, is to
enable access - 'to create conditions to facilitate access to genetic resources for
environmentally sound uses' without undue restrictions.82 Hence, their
legislation and policies need to attain equilibrium between controlling access to
genetic resources and facilitating it. This will be a challenge for less developed
but biodiversity-rich nations of the south, considering that issues such as
'capacity for legislating, monitoring and enforcing frameworks for the regulation
of bio-prospecting' are extremely relevant.83
The access provisions of art 15 of the CBD are to be read in conjunction
with the benefit sharing provisions of arts 16 and 19, which impose obligations
on users of genetic resources (predominantly developed nations 84) vis-a-vis
7 Kate and Laird, above n 67, 26.

74 Ibid.
75 Heineke and Wolff, above n 15, 28.
76 Miller, above n 70, 59
7 Ibid.
8 CBD art 15.2.
79 CBD art 15.4.
' CBD art 15.5.
s1 CBD art 15.7.
82 CBD art 15.2.
83 Michael I Jeffery, 'Bioprospecting: Access to Genetic Resources and Benefit-Sharing under the
Convention on Biodiversity and the Bonn Guidelines' (2002) 6 Singapore Journal of
International& ComparativeLaw 747, 750.
84 Users of genetic resources include research institutes, universities and private companies
operating in a wide range of sectors, such as pharmaceuticals, biotechnology, seed, crop
protection, horticulture, cosmetics and personal care: Secretariat of the Convention on Biological
Diversity, 'Access and Benefit-Sharing in Practice: Trends in Partnerships Across Sectors'
(2008) CBD Technical Series No 38, 8 <http://www.cbd.int/doc/ publications/cbd-ts-38-en.pdf>.
116
developing nations that are providing access to the genetic resources, and the
commitments of developed countries in the form of financial resources and
86
mechanisms established under CBD arts 20 and 21. The financial support and
incentives provided to enable developing countries to comply with the CBD 87
must prioritise economic and social development and eradication of poverty,88
not to mention the unique circumstances of developing nations. 89 A 'financial
mechanism' for the benefit of developing nations has also been created under art
21, which is to be managed by the CBD Conference of the Parties. Additional
provisions related to benefit sharing obligations are imposed in the form of
exchange of information under art 17 and technical and scientific cooperation
between developed and developing nations under art 18 in relation to the field of
conservation and sustainable use of biodiversity (including indigenous and
traditional technologies). Last, but not least, the CBD also addresses the issue of
access to genetic resources cultivated by indigenous and local communities, and
relevant traditional knowledge, particularly in relation to the conservation and
sustainable use of biological diversity. The question of whether these
communities are entitled to provide access for genetic resources, as well as the
conditions of access to their knowledge on these resources, are subject to
national legislation in accordance to art 8(j) of the CBD. In addition, art 10(c)
urges parties to protect and encourage the customary use of biological resources
in accordance with traditional cultural practices, particularly those that are
compatible with conservation or sustainable use requirements.
In summary, ABS is a complex mechanism that adopts a market-based
approach that attempts to 'reconcile the two contradictory goals of conservation
and sustainable use of biodiversity' as an 'indirect contribution to the solution of
the underlying ecological problem'. 90 To that end, the CBD incorporates
obligations and measures relating to:
access to genetic resources as part of national jurisdiction; access to relevant
technology, including biotechnology; and access to benefits for nation-states
ultimately gained from the use of their genetic material in the development of
biotechnology. 91
85 These benefits may take form of access to and the transfer of environmentally safe technologies
that makes use of these resources, especially those relevant to the conservation and sustainable
use of biodiversity (CBD art 16.1); effective participation in biotechnological research (CBD art
19.1); and priority access to the results of research and development carried out on the genetic
resources (CBD art 19.2).
86 CBD arts 20 and 21 are also to be read conjointly with art 15, with the aim of sharing benefits of
results from research and development, as well as benefits from commercialisation in a fair and
equitable manner with the provider of genetic resources: CBD art 15(7).
8 CBD art 20(1), (2).
88 CBD art 20(4).
89 CBD art 20(5).

90 Busch and Kern, above n 55, 9.
91 See Jeffery, 'Biodiversity Conservation in the Context of Sustainable Human Development:
A Call to Action', above n 59, 82.
117
This mechanism adopts a novel equity-based approach premised on the

idea that 'market instruments can achieve optimal allocation of the benefits of
nature and the burden of pollution and resource depletion'. 92
B. Challenges of implementing the ABS requirements of

the CBD
Implementing the ABS concept presents multidisciplinary challenges. Although
from an economic point of view the CBD aims to provide 'new means for
creating economic incentives for the conservation of biological diversity', 93
designing efficient ABS provisions is 'highly complex given its multi-task and
multi-agent problem structure, and given the lack of evidence that the economic
benefits drawn from the exploitation of genetic resources will suffice to fund the
preservation of biodiversity'. 94 Alternative incentive and governance
mechanisms have to be employed to address contracting problems that are
multilateral and involve multiple tasks. 95 Efficient solutions are also needed for
'protecting the uncertain market value of protected resources' that do not
guarantee the sustainability of benefit-sharing agreements' and circumventing
difficulties in enforcing contracts due to discrepancies between legal regimes and
institutions. 96
From a legal point of view, the CBD consists of general principles, many
of which 'challenge the current legal doctrines and have complex interactions
with pre-existing legal regimes'. 97 Thus, new intellectual property rights and new
liability regimes are required for their proper implementation. 98 The integration
of novel issues, such as 'the protection of traditional knowledge or the inclusion
of certificates of origin in patent applications', creates a real challenge to existing
legal doctrines. 99 There is also palpable concern that the CBD does not address
biodiversity resources collected prior to its entry into force. 100 Consequently,
large collections of biological resources that were already stored in gene or seed
banks in the north are omitted from its scope.101 These provide enormous
economic potential, but a respective benefit sharing has not been forthcoming. 102
92 DevelopmentPLUS, Greening the Economy: 'Selling Nature to Save It' Is Not a Solution!
(20 March 2012) The Forum: Society for International Development <http://www.sidint.net/
content/interview with kathleen mcafee?> citing Kathleen McAfee.
93 These means encompass 'different types of partnerships and contractual relationships, involving
both public and private actors' and thus 'raise a set of theoretical and empirical questions for
economic analysis, which need to be clarified for the purpose of building a cost-efficient access
and benefit sharing regime': Bernd Siebenhiiner, Tom Dedeurwaerdere and Eric Brousseau,
'Introduction and Overview to the Special Issue on Biodiversity Conservation, Access and
Benefit-Sharing and Traditional Knowledge' (2005) 53(4) Ecological Economics 439, 440.
94 Ibid 439.
95 Ibid 440.
96 Ibid 441.
97 Ibid 439.
98 Ibid.
99 Ibid 441.
100 See Heineke and Wolff, above n 15, 27.
101 Ibid.
102 Ibid.
118
Finally, from a 'political and management sciences point of view', the

implementation of the CBD raises new challenges to both global and local
environmental governance. 103 This entails the (re)design of institutional
frameworks equipped to facilitate not only 'democratic decision making'
considering the interests of the diverse stakeholders at the global level, but also
'collective learning' from experiences of implementing CBD in the face of
daunting challenges and uncertainties in the 21st century.
The initial stages of implementing the 'access' and 'benefit sharing'
components of the novel ABS system during the first decade following the
CBD's existence were discouraging because of the erroneous presumption that
provider country (from which genetic resources are obtained) legislation and
ABS contracts would suffice to implement these commitments only to later
discover that fewer than 10 per cent of the CBD parties have adopted the ABS
legislation, of which none could make claims to an ABS arrangement that was
functioning effectively. * This figure has improved, though not to the optimal
level for the realisation of ABS goals: approximately 30 per cent of the CBD
parties - a total of 57 CBD countries and seven regions - have taken some
form of 'legal, policy, administrative [and other] measures' called for by the
CBD in its third objective. 05 Legislative experts are hardly surprised that 'the
development of national implementing legislation in the concretization of this
entirely new concept has been slow' because the concepts underlying ABS did
not existed prior to the CBD negotiations. 1o6 The ABS experience, thus, has not
been positive on either end of the equation, for neither provider countries or user
countries. Significant benefits have not accrued to the access provider at the level
of national implementation from the provision of 'access' and the rate of user
compliance has also been low, partly due to the perception that the rate of return
is not commensurate with the efforts required to comply.107 This hardly comes as
a surprise due to the unproven assumptionsios underlying the demands for
sharing profits from biotechnology ventures with developing nations, and the
concomitant expectation that such profits will incentivise conservation. 109
103 Siebenhiiner et al, above n 93, 439, 440, 441.

104 The 10 per cent statistic is drawn from the CBD's Database on ABS Measures
<https://www.cbd.int/abs/measures/>. A total of 29 countries and three regional bodies have
submitted a total of 95 measures to the database, 27 of which are either 'strategy' or other non-
binding instruments: Tvedt and Young, above n 16, 1. See also Burhenne-Guilmin, above n 18,
36.
10' See Databaseon ABS Measures, CBD <http://www.cbd.int/abs/measures/>.
106 ABS can be considered as one of the 'most novel and innovative legal concepts' of international
law in the last century: see Tvedt and Young, above n 16, 5.
10' Ibid xv-xvi.
10s David Downes of the Center for International Environmental Law had pointed out that these
'plausible but unproven assumptions' were premised upon the escalating economic value of
biotechnology; the continued importance of biodiversity as a valuable raw material for
biotechnology; the ability of source countries to capture a 'significant proportion of the total
value of biotechnology' either through benefit sharing or as compensation; the benefits or
compensation flowing back to source countries to be used towards conservation efforts: David
Hunter, James Salzman and Durwood Zaelke, International Environmental Law and Policy
(Foundation Press, 3 rd ed, 2006) 1041.
119
Further, conventions like the CBD merely provide the 'general contours of the
new relationship' 110 between user and provider countries 'without specific
determinations of the requirements and interpretations needed for the
implementation of ABS, nor any explanation of how they can be addressed
through the use of existing and conventional legal mechanisms'."' Much has
been left to the discretion and political will of nation states to devise a suitable
national legislative framework that gives effect to the 'grand bargain of the
CBD'; that is, to facilitate access to genetic resources in return for an equitable
share of the benefits derived from their use. 112 As such, the ABS experience very
much impinges on the extent to which national legislatures are able to ensure
sustainable biodiversity prospecting.113
The empirical findings of a study carried out by Carmen Richerzhagen
evaluating the effectiveness and perspectives of ABS regimes arising under the
CBD based on three case studies of biodiversity-providing countries (Costa Rica,
the Philippines and Ethiopia) and one case study of a community of user
countries (the European Union ('EU')) raised significant questions about the
effectiveness of a market-based approach to the protection of biodiversity, and
about the fair and equitable sharing of benefits arising from the
commercialisation. 114 The rate of implementation of ABS, according to the
study, has not been encouraging (until 2007 ABS was implemented in only
20 countries), with reports of only a few successful cases. Based on insights
from new institutional economics, researchers also discovered the critical factors
that influence the effectiveness of national ABS legislation to include the
'assignment of property rights and intellectual property rights as well as proper
enforcement mechanisms' for transactions and activities involving genetic
resources. There has been a general sense of dissatisfaction all round, seen in
complaints of restricted access from researchers and industry relying on wild
genetic resources; complaints from provider countries that no shared benefits
have been channelled to the provider countries; and complaints from holders that
their genetic material is still being used without approval. 116
It is apparent that the ABS system has failed to fulfil the high
expectations it generated when it was first implemented in the 1990s under the
auspices of the CBD. Not only were the number of concluded contracts in the
110 Jeffery, 'Bioprospecting: Access to Genetic Resources and Benefit-Sharing under the
Convention on Biodiversity and the Bonn Guidelines', above n 84, 749.
Convention on Biodiversity and the Bonn Guidelines', above n 84, 749-50.
113 Ibid.
114 Carmen Richerzhagen, ProtectingBiologicalDiversity: The Effectiveness ofAccess and Benefit-

SharingRegimes (Routledge, 1' ed, 2010) 292.
11s Carmen Richerzhagen, 'Effectiveness and Perspectives of Access and Benefit-sharing Regimes
in the Convention on Biological Diversity - A Comparative Analysis of Costa Rica, the
Philippines, Ethiopia and the European Union' (PhD Dissertation, University of Bonn, 2007)
230.
116 Ibid.
120
last 20 years not significant, they have not generated sufficient incentives to stop
the ongoing loss of biodiversity. 117
An ABS project carried out by the International Union for Conservation
of Nature further discovered that while there was significant cooperation and
progress in addressing the first two objectives related to conservation and
sustainable use, the progress in relation to ABS measures for the third CBD
objective was less than encouraging. At the point of the study, fewer than
16 per cent of contracting parties have instituted some form of ABS measures -
primarily related to the 'access' element of the ABS - of which most are
developing nations. 119 The project concluded that 'national and international law
were lacking in the tools and concepts necessary to address ABS in a systematic,
coherent and legally consistent way' and, most importantly, that 'there is no
framework in national or international law that is currently able to address the
legal rights relating to genetic resources'.120 As such, countries cannot rely on
'normal contractual processes, documents and provisions, to protect their rights
under ABS Agreements' since they are 'lacking basic legally accepted
principles'. 12 1 The findings also revealed that, contrary to widely accepted views,
'a country's ability to get ABS contracts bears no relation to the simplicity of its
legislation or regulatory flexibility'. 122 Further, according to the findings,
replicating successful ABS programs and institutions of one nation does not
necessarily result in the same outcome for another.123
An overview of the CBD provisions reveals additional issues that need to
be addressed. To begin with, there are problems relating to conceptual clarity
with regards to essential terms in the CBD. The definition of 'genetic resources'
may be open to several interpretations. First, the distinction between genetic and
biological resources remains unclear as both contain 'functional units of
heredity'. 124 This distinction determines the scope of the ABS regime and
therefore needs clarification, even though CBD negotiations and the subsequent
usage of the term indicate that 'it is the genetic information and its use' that form
the core of the ABS regime.125 The use of technical terminology, such as
'functional units of heredity' - a term selected by policymakers and hence not a
standard scientific term - without clarification anywhere in the CBD leaves it
11' Ibid 231.

11s IUCN, 'The ABS Project - Facts, Expertise and Coherence in ABS Implementation. Enabling
Innovative Solutions to the Problems of ABS Implementation' (2004)
<http://weavingaweb.org/absdocuments/eng brochure.pdf>.
119 Ibid.
120 Miriam Dross and Franziska Wolff, New Elements of the InternationalRegime on Access and
Benefit-Sharing of Genetic Resources - the Role of Certificates of Origin (BfN - Skripten 127,
2005) 9.
121 Ibid.
122 See IUCN, above n 117.
123 Ibid.
124 According to CBD art 2, 'biological resources' includes genetic resources, organisms or parts
thereof, populations, or any other biotic component of ecosystems.
121
open to a wide array of interpretations depending on the target audience.126 Its

use mirrors the primary problem in any legislative document that uses technical
terminology: determining how that term is understood, and by whom.127
The concept of 'actual or potential value' is equally important in
determining the intended scope of 'genetic resources'1 28 but remains undefined.
Additionally, there is a need for clarification of the term 'utilization of genetic
resources', which forms the basis of ABS arrangements with a view to excluding
the sale of bulk goods and also to ensure that the right to utilise genetic material
of seeds purchased from market is subject to compliance with ABS
requirements. 129
'Bio-prospecting' has also not been defined in the CBD. Such an
omission is problematic given that the current legal regime governing
bio-prospecting comprises of 'domestic legislation overlaid by an international
framework of which CBD is central' 130 in which bio-prospecting is regarded as a
viable strategy 'to recognize the benefits of genetic resources, to justify their
conservation and to ensure that their benefits are shared' through its stated
goals.131 Hence, by defining 'bio-prospecting' in the CBD, a common
denominator will be made available for regulating and implementing such
activities at national and international levels.
The term 'biopiracy' - revealing the problematic aspects of the bio-
prospecting relationship, not to mention the ever-expanding scope of TRIPS132
- was also not clarified by the CBD despite the varying and conflicting
viewpoints that emerge in the biopiracy discourse.
Last, but not least, the concept of 'traditional knowledge' suffered a
similar fate as it was not defined under the CBD despite the fact that such
knowledge has a crucial role to play in relation to the conservation and
sustainable use of biodiversity. Invaluable knowledge of traditional and
indigenous local communities is threatened with extinction and it is essential to
define what traditional knowledge is so that a universal understanding can be
promulgated.
The transnational nature of the ABS system further compounds the
complexities associated with implementation because the utilisation of genetic
resources typically involves multiple user countries and source countries with

127 Ibid.
128 In CBD art 2, 'genetic resources' has been defined as genetic material of actual or potential value
and 'genetic material' as any material of plant, animal, microbial or other origin containing
functional units of heredity.
Convention on Biodiversity and the Bonn Guidelines', above n 84, 750.
131 Chris Hamilton, 'Biodiversity, Biopiracy and Benefits: What Allegations of Biopiracy Tell Us
About Intellectual Property' (2006), 158, 164 <http://www.aseanbiodiversity.info/
Abstract/51009492.pdf>.
132 Ibid.
122
ongoing exchanges and activities between them. 133 This demonstrates the need
for 'agreed interpretations' that will facilitate countries to take the actions
required under CBD art 15 in a more unified way. 134 These interpretations must
take into account not only the different needs of the provider country and user
country, but also the needs and requirements of the user, individual providers (if
authorised under national law) and other affected parties.135 There is an
additional need for countries to regulate certain aspects of domestic utilisation in
order to avoid gaps and 'loopholes' in the regulation of external users 13 who
may use local intermediaries to source genetic material. 137
In reality, the effectiveness of existing ABS systems even in countries
with many users is severely curtailed by the limitations of the existing ABS
legislation, which mostly focuses on the provider side of the equation, neglecting
that all countries may be both users and providers. The dearth of international
guidance for user-side measures ('with the exception of a single sub-clause -
para 16(d) - among the 152 sub-clauses of the Bonn Guidelines') has resulted
in only a few countries (developed or developing) with adequate user-side
measures.138 Undoubtedly, the problems arising from the cross-boundary
activities and global interaction in relation to ABS can be better addressed by
implementing legislation in countries where genetic resources are used, 139
thereby achieving a balance in regulating both the access and user sides of the
equation. Furthermore, there are some serious complications arising from the
ABS framework, which force countries to arrange bilateral contracts regulating
the transfer of plant genetic resources - a foreign party can shop for genetic
resources in different (provider) countries to obtain the cheapest ABS deal
possible. 140 This considerably weakens the negotiation power of the provider
country vis-a-vis the private party seeking access to the genetic material in
question. In addition, a contractual strategy encounters enforcement problems
when biological material is transferred to third parties to the contract. Although
such a problem can be overcome through contractual restrictions on transfer, this
may result in a 'chilling effect on the exchange of genetic resources'. 141
133Every ABS situation has 'a minimum of two distinct national legislative components':
(a) provider-country (or source-country) measures, consisting of 'provisions asserting each
country's sovereign rights over genetic resources, and the identification of access procedures and
requirements'; and (b) user-country measures, where each country addresses the responsibility
of users under their jurisdiction who are utilising genetic resources from other countries: see
Tvedt and Young, above n 16, 2.
134 Ibid 5.
135 Ibid.
136 Ibid 2. The provisions in CBD art 15 do not make reference to domestic access to or utilisation
of genetic resources.
137 Ibid.
13s See Tvedt and Young, above n
16, 2.
139 Morten Walle Tvedt, 'Elements for Legislation in User Countries to Meet the Fair and
Equitable Benefit-Sharing Commitment' (2006) Fridtjof Nansen Institute, 3 <http://www.fni.no/
doc%26pdf/mwt-JWIP-2006.pdf>.
140 Bram De Jonge and Michiel Korthals, 'Vicissitudes of Benefit Sharing of Crop Genetic
Resources' (2006) 6(3) Developing World Bioethics 144.
141 Tvedt, above n 138, 4.
123
There are implications when biodiversity is construed as a 'genetic

resource' under the CBD. The 'revaluation' of genetic materials under the CBD
and their resultant economic significance has given rise to the need to
reconceptualise these materials into a system of property. 142 The additional
recognition of genetic resources as national resources has 'further facilitated this
classificatory shift'. 14 3 However, the CBD has neglected to consider the
consequences of such a shift. There is an inadequate realisation that access
legislation will not be effective if its focus is limited primarily to tangible
property aspects and characteristics of genetic resources (as phenotypes) and
neglects to consider their intangible aspects and characteristics (as genotypes).144
The intangible nature of genetic resources was regularly unaccounted for in
debates, which explains the ongoing difficulties in developing concepts and
implementing suitable measures at both international and individual country
levels.145 It was pointed out that the only realistic and internationally viable way
to regulate the transboundary movement of genetic resources is to consider the
exploitation of genetic resources as genotypes.146 This will enable alignment to
occur 'with the established legal order and the principles of market economy'
which in turn has 'potential for generating medium and long term benefits for the
provider as well as eventually for the user countries'.147
Another equally disturbing realisation is how important concepts, such as
conservation of biodiversity and sustainable development, are tied in with ABS
using 'market-based strategies to mitigate climate change and biodiversity loss'
by 'quantifying and privatizing the functions and components of nature'. 148
These strategies characteristically 'conceptualize natural landscapes as sources of
ecosystem services' by ascribing 'property rights to ecosystem functions such as
storage of carbon, or sheltering of species by forests, so that right to use such
services can be bought and sold, even internationally'. 149 Schemes for Payments
for Ecosystem Services ('PES') and Reduced Emissions from Deforestation and
Forest Degradation ('REDD' and 'REDD+') exemplify programs that facilitate
nature's entryway into the global marketplace 'to earn its right to exist'. 150 These
strategies are undertaken with the expectation that, ultimately, users' benefits
142 Hamilton, 'Biodiversity, Biopiracy and Benefits: What Allegations of Biopiracy Tell Us about
Intellectual Property', above n 130, 162.
143 Ibid 163.
144 Joseph Straus, 'Biodiversity and Intellectual Property' (2000) 6 CASRIP Publication Series:
Rethinking International Intellectual Property 141, 159 <http://www.law.washington.edu/
Casrip/Symposium/Number6/Straus.pdf>.
145 Manuel Ruiz Muller, Thinking Outside the Box: Innovative Optionsfor an OperationalRegime
on Access and Benefit Sharing (June 2010) ICTSD Programme on Natural Resources,
International Trade and Sustainable Development, Issue Paper No 1, International Centre for
Trade and Sustainable Development <http://ictsd.org/downloads/2010/10/muiz-abs-protocol-
final-august-10.pdf>.
146 Straus, above n 143.
147 Ibid.
148 Kathleen McAfee, 'Nature in the Market-World: Ecosystem Services and Inequality' (2012)
55(1) Development 25, 26.
149 Ibid.
1so Ibid.
124
will be shared with the resource holders, who then will be incentivised to
sustainably use and conserve biodiversity. 151 The crucial question is whether this
strategy can be realised.
It is highly questionable that a market-based approach based on
'privatization and monetary pricing of nature' can facilitate the access and
equitable sharing of benefits derived from the utilisation of genetic resources. It
is equally doubtful that 'a policy based on the criterion of economic
efficiency' 152 will ensure the sustainable use and conservation of these resources
in a manner that realises not only intra-generational equity,1 53 but also inter-
generational equity.154 This is attributable to the 'intra-temporal' and 'inter-
temporal' (long-term) distributional implications of such a policy that are bound
to be insufficient to guarantee fairness to the present as well as future
generations. 15 The 'market panacea' neglects to consider 'the uneven social
consequences of market-based policies' for environmental management, in
addition to novel problems associated with global greening, 15 referred to as
'green grabbing' - 'the appropriation of land and resources for environmental
ends'. 157 It does not make economic or conservation sense to allow market forces
to dictate such high-end ideals, especially when the monopolistic tendencies (of
gene giants) have already been witnessed in relation to applications in
biotechnology research.
151 Richerzhagen, ProtectingBiological Diversity: The Effectiveness of Access and Benefit-sharing

Regimes, above note 113.
152 Talbot Page, Conservation and Economic Efficiency: An Approach to Materials Policy
(John
Hopkins University Press, 1977) 266.
153 Intra-generational equity concerns 'equity within a single generation', which doesn't
necessarily
imply equality. It may entail 'unequal treatment of unequals to produce less inequality' so that
the less privileged members of society 'receive an adequate minimum standard of economic
support and environmental quality': R Harding, 'Ecologically Sustainable Development: Origins,
Implementation and Challenges' (2006) 187(1-3) Desalination229, 236.
154 Intergenerational equity concerns equity in relation to future generations, where 'the present
generation should ensure that the health, diversity and productivity of the environment is
maintained or enhanced for the benefit of future generations': ibid 235.
155 Page, above n 151.
156 Some of the problems related to market-based strategies to resolve environmental problems
include: the redistribution of assets upward to people and places with purchasing power; the
'outsourcing of environmental harms' to places and populations where 'conservation and
pollution mitigation can be achieved through least costs to society; the reliance on 'asocial,
economistic logic', which wrongly assumes that 'nature's values are quantifiable and
commensurable from place to place', creates misleading impression that trade in permits to
pollute will reduce total, climate warming emissions and lead ultimately to environmental gains;
(false) expectation for market-based climate mitigation through global carbon trading that diverts
attention from the urgent need to reduce greenhouse emissions at their source through strong
regulation and major public investments; investments in biodiversity and greenhouse gas offsets
that create competition for land, including in regions where hunger is severe, thereby putting
greening on a collision course with agriculture; potential positive synergies between
conservation and climate mitigation; and food production, rural employment and equity are
overlooked: McAfee, above n 147, 26.
15 James Fairhead, Melissa Leach and Ian Scoones, 'Green Grabbing: A New Appropriation of
Nature?' (April 2012) 39(2) The Journalof PeasantStudies 237, 238.
125
It is important for the global community to find innovative means to

reconcile these paradoxes as 'there is no automatic mechanism in the market to
balance the tendencies of technological substitution, resource depletion, and
waste generation from an inter-temporal point of view'. At a conceptual level,
this can be done by fully integrating the three goals of ecological sustainability,
social fairness, and economic efficiency with a further step, which Sen 5 9 has
described as 'value formation through public discussion', which is the
foundation of real democracy in global environmental governance.'60 At a policy
level, it has been suggested that 'market and microeconomic policy instruments
should be used to enhance and maintain an efficient utilization of natural
resources', while 'macroeconomic policy and government intervention can be
used to ensure an equitable distribution of the resource base into the distant
future'.' 6 Such an approach enables national policies to be tailored in
accordance to local circumstances and mitigates the effects of globalisation as
much as possible.
International instruments such as the Bonn Guidelines on Access to
Genetic Resources and Fairand Equitable Sharing of the Benefits Arising out of
their Utilization (adopted in 2002) and the Nagoya Protocol are obviously
endeavours to address poor compliance of nation states with the ABS
requirements under the CBD. Cases of illegal prospecting of biological resources
and misappropriation of traditional knowledge associated with the genetic
resources continued unabated due to the inherent inadequacies in national laws to
provide a legal remedy if genetic resources and associated traditional knowledge
were accessed without prior informed consent having been sought in other
jurisdictions.162 Additionally, very few countries have taken effective measures
to promote sharing of benefits arising from the use of genetic resources.163
Although the Bonn Guidelines, adopted by 180 countries, form part of CBD's
broader framework and serve as a vital tool for the full implementation of the
CBD, they remain inadequate due to not being legally binding. 164 The focus of
these guidelines was predominantly on access legislation which exclusively
addresses measures to be taken in the provider country. 6 In response the
Nagoya Protocol16 was adopted.167 The Nagoya Protocol currently has
158 Ibid.
159 Amartya Sen, 'Rationality and Social Choice' (1995) 85 American Economic Review 1.
160 Robert Costanza, 'Social Goals and the Valuation of Natural Capital' (2003) 86 Environmental
Monitoringand Assessment 19, 26.
161 Page, above n 151.
162 Reji K Joseph, 'International Regime on Access and Benefit Sharing: Where Are We Now?'
(2010) 12(3) Asian Biotechnology and Development Review 77, 78.
163 Tvedt, above n 138, 189.
164 Ibid 191.
165 Ibid.
166 At the World Summit in Johannesburg in 2002, delegates adopted a Plan
of Implementation,
which not only called for the wide implementation of and the continued work on the Bonn
Guidelines (para 44 (n)), but also recommended 'negotiat[ing] within the framework of the CBD
an international regime to promote and safeguard the fair and equitable sharing of benefits
arising out of the utilization of genetic resources' (para 44(o)): Dross and Wolff, above n 119,
13.
126
25 ratifications and 92 signatories. 6 Thus, not all parties of the CBD (192 states
and the EU are parties to the CBD)1 69 have ratified the Nagoya Protocol, further
demonstrating the low confidence parties have in its ABS regime. The authors
are of the opinion, however, that the Nagoya Protocol is work in progress and
the response will be more positive as international dialogue continues and the
Protocol's provisions are finetuned, based on feedback provided by states from
their experiences of implementing them at the national level.
C. A preliminaryanalysis of the Nagoya Protocol

The framework of the Nagoya Protocol consists of 27 preambular paragraphs,
36 articles and one annex.170 The key components of the Nagoya Protocol are
provisions touching upon three related elements: access (to genetic resources and
traditional knowledge associated with genetic resources); benefit sharing; and
compliance. 171 Since most of these provisions are in the form of general
principles, as opposed to operational rules, there is a need to further develop
guidelines, standards etc to facilitate their implementation. 172
It is important to note that while the adoption of the Nagoya Protocol
provides the necessary impetus to implement the CBD's third goal, its
effectiveness in advancing fair and equitable sharing of benefits hinges on its
concerted implementation by users and providers. It is also crucial for most, if
not all, members of the CBD to ratify and implement the Nagoya Protocol.
The following discussion will focus on some of the limitations of the
Nagoya Protocol in effectively protecting genetic resources in global
biodiversity hotspots.
1. Objective
The objective of Nagoya Protocol art 1173 is a verbatim repetition of the third
objective of the CBD, but, with the added requirement that ABS shall contribute
'to the conservation of biological diversity and the sustainable use of its
components', it provides the essential linkage needed to the other two objectives
167 Convention on Biological Diversity, 'Spain Becomes 40th Signatory of the Nagoya Protocol on
Access and Benefit-Sharing and the 25th Signatory of the Nagoya-Kuala Lumpur Supplementary
Protocol on Liability and Redress to the Cartagena Protocol on Biosafety' (Press Release,
25 July 2011) <http://www.cbd.int/doc/press/2011/pr-2011-07-25-spain-en.pdf>.
168 Convention on Biological Diversity, Status ofSignature, and Ratification,Acceptance, Approval
or Accession <http://www.cbd.int/abs/nagoya-protocollsignatories/>
169 Convention on Biological Diversity, List of Parties <http://www.cbd.int/information/
parties.shtml>.
1"0 See Nagoya Protocol;see also Koester, above n 51, 12.
1' See Nagoya Protocol.
172 Koester, above n 51, 12.
1 3 Nagoya Protocol art 1:
The objective of this Protocol is the fair and equitable sharing of the benefits arising from the
utilization of genetic resources, including by appropriate access to genetic resources and by
appropriatetransfer of relevant technologies, taking into account all rights over those resources and
to technologies, and by appropriatefunding, thereby contributing to the conservation of biological
diversity and the sustainable use of its components (emphasis added).
127
of the CBD.17 4 The CBD's first objective is the reason for the Nagoya Protocol's
enactment. Thus the CBD is an important reference point in the interpretation of
the Nagoya Protocol. The objective of the Nagoya Protocol though limited to a
single objective in CBD is key to the comprehensive interpreting of 'the rest of
the operative clauses', which include resolving cases of 'divergent
interpretations' of conflicting provisions and disputes arising within the scope of
the Nagoya Protocol; measuring the validity of an action taken under the Nagoya
Protocol; providing guidance for implementing the Nagoya Protocol at the
national and international levels; and, finally, forms the basis with which the
overall effectiveness of the protocol is measured. 175 In the words of the objective
are encapsulated ways in which the objective has to be achieved, 'by appropriate
access to genetic resources, and by appropriate transfer of relevant
technologies'. 17 6 The said objective gives rise to important legal consequences
for states that have signed the treaty or have consented to be bound by it. They
are 'to refrain from acts that would defeat the object and purpose of the treaty'
pending its entry into force. 177
2. Access
Article 6 of the Nagoya Protocol contains the main provisions on access to
genetic resources, which in effect condense the provisions of CBD arts 15.1 and
15.5 on the sovereign rights of states over natural resources and the criteria of
prior informed consent for access.178 The added requirement under the Nagoya
Protocol for the enactment of a law or regulation as a precondition for prior
informed consent, which is not called for under the CBD, creates a condition that
works to the detriment of the provider (developing) countries with no specific
ABS laws or regulatory requirements on access. 179 In the absence of such laws,
they will be curtailed from imposing requirements on countries to enforce user
country compliance measures. But under the CBD there is a blanket requirement
that access to genetic resources has to be with prior informed consent of the
Contracting Party providing such resources. Thus, with such a proviso, under the
Nagoya Protocol, access to genetic resources could proceed legitimately without
prior informed consent, and ultimately facilitate biopiracy. 180
174 See Kamau et al, above n 54, 250.

1 Gurdial Singh Nijar, 'The Nagoya Protocol on Access and Benefit Sharing of Genetic
Resources: Analysis and Implementation Options for Developing Countries', Research Papers 36
(South Center and CEBLAW, March 2011) 1.
176 Ibid 2; see also Nagoya Protocol art 1, above n 172.
1 Ibid citing art 18 of the Vienna Convention for the Protection of the Ozone Layer, opened for
signature 22 March 1985, 1513 UNTS 293 (entered into force 22 September 1988).
179 Gurdial Singh Nijar, 'The Nagoya Protocol on Access and Benefit Sharing of Genetic
Resources: An Analysis', Ceblaw Brief (University of Malaya, 2011), 16 <http://biogov.
uclouvain.be/multistakeholder/presentations/Gurdial-Nijar-NagoyaProtocolAnalysis-CEBLAW-
Brief.pdf>.
"s Ibid. It is notable here that if the state law is rigid, biopiracy will increase. On the contrary, if the
law is not that strict, still biopiracy will exist. It means biopiracy can be alleviated but not
eradicated.
128
Although the intent behind such a requirement may be to work towards

the harmonisation of ABS laws between nations, it fails to take into account that
most developing nations are lacking in resources and capacity to develop the
necessary framework to implement such laws. In addition, many of the
existing laws, such as administrative law, property law, contract law and
intellectual property law, have to be reviewed and revamped and new laws
protecting traditional knowledge need to be enacted so as to pave the way for the
implementation of the ABS legislation at the national level. It has been suggested
that this drawback can be addressed during the Meeting of the Parties to the
82
Protocol ('COP/MOP') subsequent to the ratification of the Protocol.1
Developing nations that have yet to enact an ABS law can in the interim:
formally establish a policy or administrative measure that states that PIC and
MAT along the lines of Nagoya Protocol and the CBD is required for any access
to their genetic resources, biochemical compound derived from genetic resources
and traditional knowledge associated to genetic resources.183
The Nagoya Protocol has included another unprecedented obligation for
parties by setting out elaborate procedural requirements relating to access as part
of the law, administrative or policy measures.184 Some of these obligations
provide for legal uncertainty in the Protocol, which in all probability will
diminish its effectiveness due to an absence of 'a common understanding of the
key concepts'. Such a common understanding is essential in 'building a
partnership' between nations 'so that they may more efficiently cooperate' for
the sustainable use of global genetic resources. Without appropriate standards
and guidelines for procedural requirements, especially in a novel area such as
ABS, the Protocol will not be able to attain its objective. For instance, the
obligation that the law on access fulfils the general requirements of legal
certainty and clarity defies objective assessment, particularly since the Nagoya
Protocol sets out neither the criteria nor the mechanism by which this may be
objectively determined. 1 Further, the Nagoya Protocol did not ascertain who
181 Singh Nijar, 'The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources:
An Analysis', above n 178, 2.
182 Ibid 3.
183 Ibid.
184 According to art 6.3 of the Nagoya Protocol, these include: (a) obligation to ensure that law
fulfils the general criteria of legal certainty, clarity and transparency; (b) obligation to supply
information on how to apply for prior informed consent; (c) obligation for competent national
authority to give a clear and transparent written decision, in a cost-effective manner and within a
reasonable period of time; (d) obligation to set out criteria and/or processes for obtaining prior
informed consent or the approval and involvement of indigenous and local communities for
access; (e) obligation to provide for fair and non-arbitrary rules and procedures on access;
(f) obligation to issue a permit or equivalent at the time of access; (g) obligation to establish clear
rules and procedures requiring and establishing mutually agreed terms and; (h) the requirement
that parties inform the Secretariat of their designated focal point and national competent
authority before the Nagoya Protocol enters into force: Singh Nijar, 'The Nagoya Protocol on
Access and Benefit Sharing of Genetic Resources: An Analysis', above n 178, 6-17.
18s James R Maxeiner, 'Some Realism about Legal Certainty in the Globalization of the Rule of
Law' (2008) 3 1(1) Houston Journalof InternationalLaw 27, 29.
129
will make the objective determination on whether a country's laws on ABS fulfil
the requirements of legal certainty and clarity.187 These deficiencies need to be
urgently addressed through a COP/MOP decision.
Other requirements have encroached into the domain of national sovereignty;
for example, the requirement of 'fair and non arbitrary rules and procedures on
accessing genetic resources', 189 which undermines the prerogative of the
provider nation to enact rules and procedures on applications for access in
accordance to different classes of applicants. 90 In short, some of the stringent
requirements in the Nagoya Protocol have diminished the latitude provided in
the CBD for a country to determine conditions for access'91 as it deems fit in the
exercise of its sovereign right. 192 The developing nations need to take the
required steps through a COP/MOP decision to rectify the situation instead of
leaving it to the 'subjective discretion of the user'.193
3. Compliance
There was also divergence in the viewpoints of developed and developing
nations on the issue of monitoring the utilisation of genetic resources at the
national level in order to support compliance, including the designation of
checkpoints. 194 The Nagoya Protocol has left it as the prerogative of each party
to determine which measures it may wish to adopt to meet its compliance
obligations under domestic law or regulations. Nevertheless, the Nagoya
Protocol does require the checkpoint(s) to be effective and possess functions
relevant to collecting designated information.
Although this aspect was one of the core issues of concern for the
developing nations, the final text contained compliance provisions195 that were
ineffectual in terms of taking measures against misappropriation by users in their
jurisdiction. This is due to the fact that presently:
there are no existing compliance mechanisms under an MEA to address state
compliance with obligations vis-a-vis indigenous and local communities or state
compliance with obligations to ensure that users respect other countries' national
legislation. 196
187 Ibid.
188 Ibid.
189 Ibid; see also art 6.3(e) of the Nagoya Protocol,above n 183.
191 CBD art 15.1.
193 Ibid.
194 Morgera and Tsioumani, above n 48, 15.
195 Articles 15 and 16 of the Nagoya Protocol.
196 Morgera and Tsioumani, above n 48,
16.
130
There is merely an 'enabling clause on monitoring compliance at the

international level, foreseeing the future establishment of a compliance
mechanism of a cooperative and non-adversarial nature'. 1 97
In addition, there are no guidelines in the Nagoya Protocol on measures
which are considered 'appropriate, effective and proportionate' or measures
necessary for effective monitoring, tracking and reporting requirements to
support compliance. 198 This inadequacy in will have a detrimental effect on
stemming biopiracy as well as ensuring benefit sharing. Hence these provisions
need to be strengthened at COP/MOP urgently.
4. Monitoring
Article 17 of the Nagoya Protocol predominantly targets 'user countries' and
makes it their prerogative to take appropriate measure(s) 'to monitor and to
enhance transparency about the utilization of genetic resources'.199 The most
prominent focus was designated for checkpoints, which have to be effective and
have functions relevant to the monitoring of the utilisation of genetic resources
or the gathering of relevant information at any stage of research, development,
innovation and pre-commercialisation. 200 The Nagoya Protocol neither specifies
nor imposes an explicit obligation to designate a specific type of checkpoint.201
Such flexibility is provided so that the checkpoints most suited to national
circumstances can be selected. Thus, parties have the flexibility to decide on
whether to designate the patent office as a checkpoint. However, parties do not
have to 'inform the Secretariat or the Clearing House of their designation of
checkpoints, whereas the access granting countries are required to inform the
Secretariat of the designated focal points and national competent authority' .202
It also does not prescribe any specific obligation as to the type of
information that should be collected or received by the designated
checkpoint(s) 203 so that it can be passed on to the relevant national authorities,
197 Nagoya Protocol art 30.

An Analysis', above n 178, 18-21.
199 Article 17 of the Nagoya Protocol mainly supplements art 15 relating to compliance measures,
which include the designation of one or more checkpoints (art 17.1(a)); the inclusion of
'provisions in mutually agreed terms to share information' including reporting requirements
(art 17.1(b)); the use of cost-effective communication tools and systems (art 17.1(c)); the
issuance of a permit or equivalent (art 17.2); and the issuance of an internationally recognised
certificates of compliance (art 17.3).
200 Nagoya Protocol art 17.1(a)(iv).
201 Jorge Cabrera Medaglia, Frederic Perron-Welch and Olivier Rukundo, 'Overview of National
and Regional Measures on Access to Genetic Resources and Benefit-Sharing: Challenges and
Opportunities in Implementing the Nagoya Protocol', CISDL Biodiversity & Biosafety Law
Research Programme (December 2011) <http://www.sib.admin.ch/uploads/medial
Overview of ABS Measures 2011.pdf>.
202 Joseph, above n 161, 90.
203 Medaglia et al, above n 200, 68.
131
the party providing the prior informed consent and the ABS Clearing House as
appropriate.204
Although art 17 of the Nagoya Protocol institutionalises 'an
internationally recognized certificate of compliance', which serves as evidence
of due compliance with access requirements, it only applies to the utilisation of
genetic resources and not to utilisation of traditional knowledge related to them.
Further, the minimum information proposed for the certificate only makes
reference to genetic resources, but not to their related traditional knowledge.205
Finally, compliance with obligations arising from mutually agreed terms is not
covered under art 17, but separately under arts 18.2 and 18.3, because contractual
obligation is not part of public international law but of private international
law. 206 Parties must ensure that the affected parties are able to seek recourse
under their legal systems and effective measures are taken regarding 'access to
justice' as well as mechanisms instituted for 'the mutual recognition and
enforcement of foreign judgments and arbitral awards'. 207
These shortcomings need to be addressed by developing countries
through COP/MOP in several ways. Parties should be required to designate
'effective checkpoints', which should consist of 'places or authorities whose
normal function is to collect or receive information relating to the utilisation of
the genetic resource, derivatives or associated traditional knowledge' and should
include intellectual property rights offices in developing nations.208 To this end,
the COP/MOP must make an assessment of 'effectiveness'. 20 9 Additionally,
developing nations need to ensure that information received at the checkpoint is
not filtered on the pretext of 'confidential information' when it reaches 'the
competent national authority, the clearinghouse or the country requesting prior
informed consent and mutually agreed terms'. 210 This problem should be
addressed by developing nations through an appropriate COP/MOP decision
which 'restricts the kind of information for which confidentiality may be
claimed'; and they should also include in their national ABS laws or
administrative or policy measures 'when and how confidentiality can be
claimed' with the CartagenaProtocol on Biosafety as a reference point.211 There
should also be provisions in the national ABS law or administrative or policy
measure requiring disclosure requirements at checkpoints on traditional
knowledge related to accessed genetic resource. 212 Finally, developing countries
should deny access to 'users from jurisdictions that do not have effective

Analysis and Implementation Options for Developing Countries', above n 174, 27.
207 Nagoya Protocol,art 18(2) and (3).
209 Ibid.
210 Ibid 11.
211 Ibid.
212 Ibid.
132
monitoring measures, including effective checkpoints' through relevant national

law, administrative or policy measures. 213
5. Scope
There are various ambiguities in the 'substantive and temporal scope' of the
Nagoya Protocol that have resulted in 'a range of partially conflicting
interpretations', such as the inclusion or exclusion of 'derivatives', the protocol"
s temporal scope, the regulation of publicly available traditional knowledge and
the compliance mechanism.2 14 One of the core issues that surfaced during the
negotiations was whether the term 'derivative' can be included in the definition
of 'genetic resources' 215 - developing countries wanted to include derivatives
within the scope of the Nagoya Protocol because industry uses derivatives to
216
create new and commercially valuable products2. There are varying
interpretations on whether the Nagoya Protocol extends to derivatives of by
virtue of provisions in arts 2, 3, 5.1 and 12.1.217
Another related question was on 'whether this extension of the scope of
the Nagoya Protocol would be inconsistent with the CBD'. 2 18 The definition of
'genetic material' in the CBD seems to exclude derivatives since it is confined to
materials 'containing functional units of heredity'. 219 However, there seems to be
a consensus that Nagoya Protocol includes derivatives with reference to the term
'biochemical composition of genetic resources' found in the definition of
'utilization 1of genetic resources' in art 22. 220
It was suggested that an
evolutionary, as opposed to a static, interpretation was required for such a
determination. 221 Moreover, it would defeat the purpose of the Nagoya Protocol
if derivatives were not included in its scope.222
The issue of access to genetic resources that are pathogens - disease-
causing agents - which was introduced by the EU during the negotiations was
another area of contention in the Nagoya Protocol, and there are varying
interpretations of whether they are included or excluded from the scope of the
213 Ibid 10.

214 ICTSD, 'CBD Clinches ABS Protocol in Nagoya' (8 November 2010) 10(20) Bridges Trade
BioRes 3, 4.
215 According to art 2(e) of the Nagoya Protocol, the term 'derivative' means a naturally occurring
biochemical compound resulting from the genetic expression or metabolism of biological or
genetic resources, even if it does not contain functional units of heredity.
216 'According to experts, some 90 percent of all biopiracy is related to derivatives - "naturally
occurring biochemical compounds resulting from the genetic expression of metabolism of
biological or genetic resources" - rather than the actual genetic resources capable of
reproduction': ICTSD, above n 213, 4.
An Analysis', above n 178, 21-2.
Analysis and Implementation Options for Developing Countries', above n 174, 13
219 Ibid.
220 Ibid.
221 Ibid 14.
222 Ibid.
133
Protocol.22 3 Singh Nijar has argued that pathogens do fall within the scope of the
Nagoya Protocol with reference to Preamble 16, which clearly demonstrates that
pathogens are included in its scope. 2 24 He further deduced that 'the preamble
does not exclude the application of the benefit sharing provisions' of the Nagoya
Protocol by taking into consideration 'the express objective of the Nagoya
Protocol for the sharing of benefits'. 2 25 Further references were made to art 4(3)
and (4), which did not contain any provisions that 'makes the Protocol
inapplicable to pathogens'; and art 8(b)226 did not 'establish a special benefit
sharing regime for pathogens'. 227 Thus it is highly recommended that parties to
the Nagoya Protocol should 'develop national laws which deal with pathogens as
genetic resource and subject it to the ABS requirements'.228
Finally, there is legal uncertainty regarding the temporal scope of the
Nagoya Protocol; that is, whether it applies to genetic resources before the
Protocol's entry into force. 2 2 9 This does not necessarily imply that benefit
sharing only relates to benefits from genetic resources and traditional knowledge
accessed post-CBD or even post-Nagoya Protocol. The uncertainty needs to be
clarified in accordance to general international law, particularly the Vienna
Convention. Accordingly, the provisions of the CBD and the Nagoya Protocol
'do not bind a party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into force of the treaty
with respect to that party'.230 Nevertheless, under art 28 of the Vienna
Convention, it can be deduced that 'the generation of benefits after that date is a
new act or that the holding of the genetic resource or traditional knowledge is a
situation which has not ceased to exist'.231
6. Benefit sharing
Parties to the Protocol are required to take measures relating to benefits
arising from the utilisation of genetic resources, as well as subsequent
applications and commercialisation, so that they are shared with the provider
country. 232 The Nagoya Protocol reiterates that benefits shared on mutually
233
agreed terms may be monetary and/or non-monetary and these provisions are
merely reproductions of arts 15.7 and 15.3 of the CBD, as well as those set out in
223 Ibid.
224 Gurdial Singh Nijar, 'The Nagoya ABS Protocol and Pathogens', South Center Policy Brief 4
(April 2011) South Centre <http://www.southcentre.int/policy-brief-4-april-2011/>.
225 Ibid.
226 Article 8 of Nagoya Protocol: 'In the development and implementation of its access and benefit-
sharing legislation or regulatory requirements, each Party shall ...(b) Pay due regard to cases of
present or imminent emergencies that threaten or damage human, animal or plant health, as
determined nationally or internationally'.
227 Singh Nijar, 'The Nagoya ABS Protocol and Pathogens', above n 223.
228 Ibid.
229 Singh Nijar, 'The Nagoya ABS Protocol and Pathogens', above n 213, 25-6.
230 Kamau et al, above n 54, 255.
231 Ibid.
232 Singh Nijar, 'The Nagoya ABS Protocol and Pathogens', above n 213, 27.
233 See art 5.4 of and annex ('Monetary and Non-Monetary Benefits') to the Nagoya Protocol.
134
the annex to the voluntary Bonn Guidelines.234 The Nagoya Protocol failed to
address the inadequacies of CBD - it lacks the much needed guidance on user-
side measures that will ensure implementation. In fact, 'the lack of
implementation rather than the lack of international obligations' is considered
the major obstacle for the fair and equitable benefits sharing.2 35 The 'fair and
equitable sharing of benefits' revolves around the question of value - to
ascertain the appropriate value it is important to link the benefits sharing to the
outcome of the end use of genetic resources, as opposed to their access, as this
would greatly reduce the uncertainty for business in the calculation of
benefits2.236 There is thus an urgent need to develop an internationally recognised
manner/approach/methodology for valuation of genetic resources' .237 In short,
the benefit sharing component is the Achilles heel of the Nagoya Protocol, with
insufficient attention to the details required for its successful implementation.
7. Traditional knowledge
Traditional knowledge has been given some importance in the Nagoya Protocol.
It is not only a 'cross-cutting issue', but also has 'stand-alone provisions' .238 The
Nagoya Protocol can be considered as CBD-plus, since it deals with the right of
indigenous and local communities in relation to both genetic resources and
traditional knowledge associated to it, 239 in contrast with the CBD, which only
deals with traditional knowledge of indigenous and local communities. 240
It is debatable whether there is an implied right flowing from Art 8(j) for
the community to refuse access to its traditional knowledge.241 Further
obligations are imposed on parties to ensure the sharing of benefits arising from
the utilisation of traditional knowledge associated with genetic resources in a fair
and equitable way with indigenous and local communities who are holders of
such knowledge. 242 Nevertheless, many feel that state sovereignty has taken
precedence over the rights of indigenous peoples throughout the Nagoya
Protocol via use of the terms 'in accordance with domestic law', 'established
rights', 'as appropriate', 'as applicable' and 'with the aim of ensuring' whenever
it deals with indigenous and local community rights.243 These rights are
'illusory' since they are only applicable where indigenous and local communities
234 Kaman et al, above n 54, 251; see also Singh Nijar, 'The Nagoya
ABS Protocol and Pathogens',
above n 213, 27.
235 Tvedt, above n 138, 5.
236 Ibid 11.
237 Ibid.
239 Articles 6.2 and 7 of the Nagoya Protocol.
240 See art 8(j) of the CBD; see also Singh Nijar, 'The Nagoya Protocol on Access and Benefit
Sharing of Genetic Resources: An Analysis', above n 178, 24.
241 Morgera and Tsioumani, above n 48, 14.
242 Article 5.5 of the Nagoya Protocol.
243 Katharina Rogalla Von Bieberstein and Dr Konstantia Koutouki, The Nagoya Protocol: Status of
Indigenous and Local Communities (Center for International Sustainable Development Law,
2011) 15.
135
have an established right to grant access under the national provisions .24 The
drawback is that the Nagoya Protocol does not impose any obligation on a party
to establish or recognise such a right.245
Another shortcoming of the Nagoya Protocol is that it fails to address the
issue of intellectual property rights associated with the traditional knowledge of
indigenous peoples. Unfortunately, the issue has been deferred to the World
Intellectual Property Organization by the majority of states, even though the
organisation's mandate does not cover the protection of traditional knowledge. 246
The net effect of the relevant provisions of the CBD and the Nagoya Protocol is
the increasing pressure towards the commodification of traditional knowledge so
that it can be duly protected by subjecting it to domestic law if no sui generis
system of protection is acknowledged.247
The issue of publicly available traditional knowledge - situations where
'the knowledge was not obtained directly from indigenous and local
communities' or alternatively where there was 'no identifiable owner of the
resource as the traditional knowledge was passed down from generations ago' -
was dealt with in a less than satisfactory manner from the vantage point of
developing nations.248 After intense negotiations, all proposals by developing
nations to regulate this category of traditional knowledge were rejected, only to
be relegated to the preambular paragraphs as references; that is, 'to the
recognition of unique and diverse circumstances whereby traditional knowledge
is held'. The above drawbacks can be addressed by developing nations through
special provisions in their national ABS laws.24 9
8. Technology transfer
The provisions in the Nagoya Protocol relating to technology transfer,
collaboration and cooperation per art 23 can be considered as CBD-minus, since
they considerably watered down the provisions of the CBD during the course of
its negotiation.250 The proposal by the developing countries that imposed
obligations on developed nations to 'collaborate and cooperate in technical and
scientific research and development programmes, including biotechnological
research activities' and includes measures 'to provide incentives to the private
sector within their jurisdiction to promote and encourage access and transfer of
245 Ibid.
246 See Von Bieberstein and Koutouki, above n 242, 15.
247 Ibid.
An Analysis', above n 178, 28. Developing countries were not in favour of free access of
publicly available traditional knowledge and argued that PIC and MAT requirements should also
apply for such knowledge. Developed nations conversely argued that said knowledge falls under
public domain and thus precludes PIC and MAT requirements.
136
technology to developing countries to help them establish a sound and viable

technological and scientific base' was rejected by the developed nations. The
final provision of the Nagoya Protocol had the effect of reducing the obligation
of developed countries to merely 'promote and encourage' access and transfer of
technology to developing and least developed countries'. 25 '
This is particularly sensitive area as technology transfer is closely related
to intellectual property rights underlying cutting edge technologies utilised in
gene research. It is highly desirable that developing countries should work
towards establishing benefit sharing obligations through COP/MOP decisions in
addition to incorporating them into national law or administrative or policy
measures. 2 52 They can also incorporate these obligations as mutually agreed
terms with the users.253
9. Other provisions
Parties must 'consider a global multilateral benefit-sharing mechanism' under art
10 of the Nagoya Protocol to address 'transboundary situations' and 'situations
for which it is not possible to grant or obtain prior informed consent'. 254 This
could in theory apply to the use of genetic resources obtained ex situ or in a
manner not compliant with the CBD. The outcome of this provision is largely
dependent on future negotiations within the COP/MOP.
Although acknowledgments have been made in the Preamble of the
Nagoya Protocol to the potential role of access and benefit sharing in poverty
eradication and environmental sustainability to enable achievement of the
Millennium Development Goals, the provisions per se were not drafted in way
that paves the way for the actual fulfilment of these ideals. The provisions were
generally tilted heavily in favour of the users of genetic resources and the
latitude provided under CBD for a country to determine conditions of access was
considerably diminished under the Nagoya Protocol.
The Nagoya Protocol was seriously remiss in that it solely addressed the
issue of bio-prospecting, but has totally failed to address the concerns of the
developing nations regarding biopiracy - the provisions have omitted to define
'biopiracy' or acts constituting biopiracy and measures to address such concerns.
There is currently no agreed concept of 'biopiracy'2.255 The Nagoya Protocol
would have been the perfect forum to define the concept in order to allow
countries to address it at the national level through a biopiracy framework at
Analysis and Implementation Options for Developing Countries', above n 174, 29-30.
252 Ibid 30.
253 Ibid.
254 Ibid.
255 Graham Dutfield 'What is Biopiracy?' (2005) in Mariana Bellot-Rojas and Sophie Bernier (eds),
InternationalExpert Workshop on Access to Genetic Resources and Benefit Sharing: Record of
Discussion, Cuernavaca, Mexico, 24-27 October 2004, CONABIO and Environment Canada,
Mexico, 23.
137
three levels: violation of prior informed consent procedures, violations based on

mutual agreements, and third-party issues. 256
V. Conclusion
The fact that the negotiation process of the Nagoya Protocol did not conclude
smoothly reflects the wide variance in opinions on how to implement provisions
regarding access and benefit sharing that had occurred along the lines of user or
provider (of genetic resources) status. During the negotiation, most nations had
somehow lost sight of the overarching goal for having such a Protocol: to protect
the global biodiversity undergoing rapid depletion to the extent that it threatens
the wellbeing of all of its inhabitants, current and future.
The Nagoya Protocol has been aptly referred to as a 'masterpiece in
creative ambiguity' with reference to the compromise and/or avoidance of topics
about which nations could not achieve any consensus.257 In order that the
distribution of benefits and thus the CBD objective of fair and equitable sharing
of benefits be achieved, it is important for any ABS scheme to address not only
the existing realities of bio-prospecting, but also the (inequitable) 'distribution of
bargaining power closely linked to the market structure'.258 In addition,
imbalances in technological expertise must also be taken into account by setting
the incentives right without the complications arising from unclear or inefficient
property rights regimes, enforcement problems due to time lags and
informational asymmetries, and administrative complexity.259 According to
Sarah Cook, Director of United Nations Research Institute for Social
Development, the underlying problems can be traced to the fact that 'the current
green economy policies are built on the same mechanisms that created crises,
and risk reinforcing or exacerbating serious social inequalities and
exclusions'. 2 60
It is apparent that the development of an international regime for ABS
that meets with the satisfaction of all parties and stakeholders is not going to be
an easy task. Not only are ABS concepts new in international law and domestic
legislations, they contain various paradoxes that the international community
needs to come to terms with; for instance, reconciling the goal of conservation of
biodiversity with that of sustainable use. The uniqueness of ABS, combined with
the global lack of experience in the implementation of any system that is similar,
has made it difficult to develop any consistency within the global 'regime' on
ABS. 261
256 Ibid.
257 Maria Julia Oliva, 'Sharing the Benefits of Biodiversity: A New International Protocol and Its
Implications for Research and Development' (2011) 77(11) PlantaMedica 1221, 1223.
258 Carmen Richerzhagen and Karin Holm-Mueller, 'The Effectiveness of Access and Benefit
Sharing in Costa Rica: Implications for National and International Regimes' (2005)
53 Ecological Economics 445, 448-9.
259 Ibid.
260 DevelopmentPLUS, above n 47.
261 Tvedt and Young, above note 16, 15.
138
The challenge ahead for the global community hinges on whether it is

able to achieve consensus ad idem despite differing stakeholder perspectives on
legal mechanisms, methodologies, and specific policy approaches. It is important
to give clarity to this 'amorphous concept' as well as legal and practical reality
262
so as to achieve the crucial objectives of the CBD2. The Nagoya Protocol can
be considered as work in progress, which means that its provisions can be fine
tuned upon ratification and implementation by the various nations who are its
signatories.
There is a realisation that ABS per se will not be adequate to provide an
incentive for biodiversity conservation and instead needs to be part of a
comprehensive strategy that internalises values beyond economic gain and
commercial values, such as intergenerational equity and sustainable
development2.263 If correctly implemented, the ABS regime has a radiating effect
beyond access, conservation and benefit sharing, with the potential to alleviate
poverty and enhance socioeconomic development. Hence, if the Nagoya
Protocol can achieve a harmonious balance between all the varying interests and
aspirations of the nations, while promoting the conservation of this planet's
biodiversity, the global community together will have taken an important step to
ensure the future of this planet.
262 Ibid xv.

263 Richerzhagen, 'Effectiveness and Perspectives of Access and Benefit-sharing Regimes in the
Convention on Biological Diversity - A Comparative Analysis of Costa Rica, the Philippines,
Ethiopia and the European Union', above n 114, 231.
139

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Abdul Haseeb Ansari and

BiologicalDiversity,' to regulate the international flow of genetic resources and,

19 See Heineke and Wolff, above n 15, 27.

harmonisation between international environmental law and domestic

A. Current approaches to saving earth's biodiversity

30 'Naturocentric approach' to environmental protection originates in the demand for nature

commodification of nature as prescribed under the CBD result in the same

35 See Odek, above n 20, 155.

the application of 'post neo-liberal version of environmental economics' . In

drivers of biodiversity loss (including demographic, economic, technological,

II. Access and Benefit Sharing Experience: From

A. ABS requirements under the CBD

50 Tvedt and Young, above n 16, 5.

7 Kate and Laird, above n 67, 26.

89 CBD art 20(5).

This mechanism adopts a novel equity-based approach premised on the

B. Challenges of implementing the ABS requirements of

Finally, from a 'political and management sciences point of view', the

103 Siebenhiiner et al, above n 93, 439, 440, 441.

114 Carmen Richerzhagen, ProtectingBiologicalDiversity: The Effectiveness ofAccess and Benefit-

11' Ibid 231.

open to a wide array of interpretations depending on the target audience.126 Its

126 Tvedt and Young, above n 16, 54.

There are implications when biodiversity is construed as a 'genetic

151 Richerzhagen, ProtectingBiological Diversity: The Effectiveness of Access and Benefit-sharing

It is important for the global community to find innovative means to

C. A preliminaryanalysis of the Nagoya Protocol

174 See Kamau et al, above n 54, 250.

Although the intent behind such a requirement may be to work towards

There is merely an 'enabling clause on monitoring compliance at the

197 Nagoya Protocol art 30.

204 Koester, above n 51, 14.

monitoring measures, including effective checkpoints' through relevant national

213 Ibid 10.

technology to developing countries to help them establish a sound and viable

three levels: violation of prior informed consent procedures, violations based on

The challenge ahead for the global community hinges on whether it is

262 Ibid xv.

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