Beyond Nagoya: Towards a Legally Functional System of Access and Benefit-sharing

In Oberthür, S. and G.K. Rosendal (eds), Global Governance of Genetic Resources: Access and Benefit Sharing after the Nagoya Protocol. London/New York, Routledge, 2014, pp. 158-177.

The core question is how to make the access and benefit-sharing (ABS) mechanisms of the CBD legally functional in practice for users and providers of genetic resources. There is a need for legal systems in all countries to correspond so that a claim under one country’s system can be pursued within the jurisdiction of another. At its core, the ABS challenge is about creating incentives for private (or public) entities (which create benefits by utilising genetic resources), to share these benefits in a fair and equitable manner. This study explores options for creating such incentives under the Nagoya Protocol. It consists of three main parts: 1) a closer look at the user obligations as set out in the Nagoya Protocol; 2) identifying the access regulations and norms set out in the Protocol; and 3) exploring how these two clusters of rules can be harmonized so as to form a legally functional ABS system.

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