Alternative models to the bilateral arrangement as a solution to ABS challenges

• Applicant: Dr. Evanson Chege Kamau
• Subject Area: Public Law
• Term: since 2022
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 505443509

Based on the concept of sovereign rights of States over their natural resources which was first established by the UN General Assembly in 1962 under Resolution 1803 XVIII the CBD introduced a bilateral quid pro quo arrangement of exchange of genetic resources (GR) and traditional knowledge associated to such resources (aTK) and the benefits arising from their utilization between their providers and users. Its article 15 establishes a system of control by the provider based on prior informed consent (PIC) and mutually agreed terms (MAT) as well as the requirement of the user to share benefits from utilization. This system has functioned dismally (Prip and Rosendal 2015) and the benefit-sharing project is judged by some authors as having failed (Muller et al. December 2019; Muller 2015; Winter 2021). With the parties to the CBD agreeing on a binding instrument that required providers to implement legislative, administrative or policy measures which ensure legal certainty, clarity and transparency, and users to put measures in place which ensure compliance with provider rules and facilitated tracking and monitoring of the value chain, it was thought that with the Nagoya Protocol (NP) of 2010 these challenges and the ensuing mess would be eliminated (Kamau 2014). The reality is discouraging 29 and 10 years since the adoption of the CBD and the NP respectively. Even with the new laws attempting to reach conformity with the NP, access and benefit-sharing (ABS) retain a myriad of challenges. In particular monetary benefit-sharing, which is consequential for conservation and sustainable use of biodiversity, has been poorly realized. Our hypothesis is that the core of these challenges lies with the bilateral quid pro quo arrangement. Besides, bilateralism is considered a poor fit to modalities of access and use of and benefit-sharing from digital sequence information (DSI) (Laird et al., 2020; Scholz et al., 2020) which is a basis for the real source of (monetary) benefits, and the ownership of which is currently a major issue of contention between providers and users. Based on an analysis and explanation of the achievements and failures of the present system the research project aims to examine alternative models with the substantial question of linking or delinking sovereign rights and benefit-sharing. The theme is very topical and the project timely given the current discussions of multilateral benefit-sharing in several fora, and the decisions that will be taken over the next few years. Indeed, deliberations in this regard have started at the CBD level.

• DFG Programme: Research Grants