The ABS Nagoya Protocol: a legally sound framework for an effective regime ?
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On 30 October 2010, the ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits to the Convention on Biological Diversity’ was successfully adopted by the tenth session of the Conference of the Parties to the Convention on Biological Diversity (CBD). By examining some of the core elements of the new treaty (scope, access, benefit-sharing and compliance), this analysis aims to assess the potential for effectiveness of the international regime on Access to genetic resources and Benefit-Sharing (ABS) as complemented by the Nagoya Protocol. Foremost, this research identifies the strengths, weaknesses and issues still to be resolved of the new legal framework. At the core, the Nagoya Protocol is built on the assumption that an effective ABS regime can only be achieved if Parties encourage users willing to participate in the conservation effort by favouring access to genetic resources but also by creating incentives to enter into ABS contracts. The new treaty develops a better common understanding on the manner ABS should operate and lays down a set of basic principles and processes Parties will need to implement in their domestic legal order. More specifically, three main evolutions may be found in the new legal framework. First of all, the scope of the ABS international regime is better defined, significantly expanded and limited in several manner. ‘Utilization of genetic resource’ constitutes the major theoretical breakthrough and becomes the corner-stone of the ABS concept. Secondly, the Protocol stresses that the exercise of States sovereign rights in designing access regulation may not run against the needs for certainty of users and user countries. Thirdly, the emphasis on user side measures is another major change since it explicitly recognizes that contractual provisions and provider legislation are alone markedly inadequate for an effective ABS regime. Even if many practicalities remain to be defined, this research concludes that the new framework has potential to achieve the ABS objective of the CBD and thereby contribute to equity, sustainability and biodiversity conservation. If successfully implemented in a consistent and mutually supportive manner by its future States Parties, it is argued that ABS may grow up to a key instrument in the global governance of biodiversity conservation.