Is the Nagoya Protocol designed to conserve biodiversity?

Abstract

Societal Impact Statement We have entered a monumental era in terms of realizing the impact of biodiversity loss on our everyday lives. We suffer from the consequences of biodiversity loss due to overexploitation of natural resources as we continue failing to restore biodiversity. One of the major consequences of biodiversity loss is the emergence of global pandemics. We are in urgent need of realizing the full potential of all of the international legal instruments on creating incentives for biodiversity conservation. Access and benefit‐sharing or ABS is an international legal framework implemented with the hopes that it would provide such incentives. Therefore, a legal analysis on whether ABS is designed to achieve biodiversity conservation is of crucial importance in achieving international conservation targets. Summary The international ABS regime was put in place with the hope that it would aid the international community in conserving biodiversity and thereby attaining its international conservation targets. This paper conducts an empirical analysis of all of the relevant documents generated during the negotiations of the Nagoya Protocol, the major international legal instrument on ABS, to determine whether the design of the regulatory mechanisms do indeed lead to creating such incentives for conservation. Throughout the negotiations for the Nagoya Protocol, many suggestions were made by the Parties and relevant stakeholders regarding how ABS would result in creating incentives for biodiversity conservation. While some presuppose that benefit‐sharing will inherently result in biodiversity conservation, others specify some economic incentives which would then generate such incentive that would result in governments directing the received benefits into conservation activities. The paper then moves on to analysing the adopted text of the Nagoya Protocol with the aim of mapping the obligations of Parties to channel benefits into conservation. It is concluded that the design of the Nagoya Protocol does not intrinsically lead to biodiversity conservation but benefit‐sharing is a tool that can be directed towards biodiversity conservation.

Keywords

• access and benefit‐sharing (ABS)
• biodiversity conservation
• genetic resources
• incentives
• Nagoya Protocol