Research Paper 36, March 2011

The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: Analysis and Implementation Options for Developing Countries.

As is common knowledge, the Nagoya Protocol was rushed through in the final hours of COP10 in an attempt to secure a binding instrument on ABS. As a result the Protocol represents, at best, a partially negotiated instrument. In the process, transparency, legal certainty and balance seem to have been sacrificed.

The silver lining, however, is that the generalised provisions, crafted in an attempt to accommodate seemingly polarised positions, provide considerable flexibility. It is for developing countries to exercise the options open to them as a result, as outlined in this article, through national law as well as through COP/MOP at the crucial implementation stage after the Protocol is ratified. Hopefully, this will finally provide the world with an instrument truly supportive of national ABS laws and policies to end biopiracy and restore fairness and equity in the exchange of genetic resources across the globe. For, ultimately, only on the basis of fair and equitable sharing of benefits can the conservation and sustainable use objectives of the CBD be finally realized.

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