Thinking Outside the Box Innovative Options for an Operational Regime on Access and Benefit Sharing
The ongoing discussions on the Draft Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization has highlighted a series of complexities both at the technical and political level which will require further careful negotiations. The existing draft text of the Protocol still reflects contentious areas regarding issues such as: compliance with access and benefit sharing (ABS) measures, protection of traditional knowledge, and the recognition of disclosure and certificates of origin. This research paper explores the current situation of ABS debates within the WG-ABS on the Protocol and, more importantly, offers an alternative approach to designing an international policy and legal framework on ABS. It argues that the central problem which ABS frameworks confront refers to the policy and legal treatment given to subject matter at hand: genetic resources. The paper explores the idea that genetic resources need to be understood as coded genetic information - natural information - for which economics offer a set of well developed and tested principles to ensure appropriate regulatory frameworks. It further asserts that the regularly unaccounted intangible nature of genetic resources in debates is the main cause for the ongoing difficulties that countries - and the international process on ABS in general - face in terms of conceptual developments and, especially, implementation. When this status is recognized, a wholly new and redirected process will be required if benefit sharing objectives of the Convention on Biological Diversity (CBD) are to be realized. This will imply consideration to geographical distribution of species, databases (i.e. iBOL), certificates of origin, and most critically, a reassessment of the concept and implications of sovereignty in the context of genetic resources and ABS debates in general.
The paper finally proposes a "roadmap" and critical characteristics of a "new protocol" that would take account of the conclusions of the author and ensure a viable international ABS regime.