Fair and Equitable Negotiations? African Influence and the International Access and Benefit-Sharing Regime

Abstract

In 2010, parties to the Convention on Biological Diversity (CBD) adopted the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (access and benefit-sharing, or ABS). 1 Nagoya Protocol adoption resulted from a long set of negotiations on the making of an international ABS regime, triggered by a situation of distributive injustice: countries using genetic resources reap most of the benefits, while the costs related to the conservation and protection of these same resources are mainly carried by provider countries. Through the establishment of an international ABS regime, benefits and burdens arising from the use of genetic resources should thus be shared fairly between user and provider countries.Based on principles of distributive justice, 2 the notion of fair and equitable sharing raises two well-documented issues. First, theories of distributive justice are ill suited to the study of the underlying conditions that shape decisions leading to the distribution of benefits and burdens. These conditions are rooted in the material, social, cultural, and institutional circumstances within which the decision-making process takes place. 3 Second, given that different conceptions of morality and justice coexist, fair agreement conditions tend to be better approached by defining the conditions of a fair decision-making process. 4 Fairness and equity of a benefit-sharing agreement thus depend on a decision-making procedure governed by the principles of procedural justice.The complexity and interdependence of an ever-growing number of multilateral environmental agreements and the unequal distribution of resources and (bargaining) power among states generates unequal participation opportunities.

Access and allocation in climate change adaptation

“…Participatory processes and CbA may hence potentially reinforce, rather than reduce, inequities and power imbalances (Eriksen et al 2015;Buggy and McNamara 2016;Nightingale 2017;Ensor et al 2018;Mikulewicz 2018). This violates the principle of procedural justice (Coolsaet and Pitseys 2015). Research into climate change adaptation must take into account power and procedural justice, i.e.…”

“…However, the negotiations are not a level playing field; smaller and poorer countries are at a disadvantage because of unequal access, different delegation sizes, and differences in expertise and language skills (cf. Chasek and Rajaman 2003;Paavola and Adger 2006;Bulkeley and Newell 2010;Roberts and Parks 2014;Coolsaet and Pitseys 2015). The late arrival of adaptation onto the negotiation agenda reflects these power inequalities: adaptation was long considered a "developing country issue" that powerful industrialised countries could keep off the agenda, not least for fears of attribution of responsibility and claims for compensation (Schipper 2006).…”

Designing Regulatory Frameworks for Access to Genetic Resources: A Multi-Stakeholder Multi-Criteria Approach

“…Likewise, when refining our conclusions related to the temporal scope, as well as the activity scope, and the implications on criteria N • 1 (predictability), N • 2 (legal certainty) and N • 3 (transparency) thereof, we resorted to many sources of literature (Seiler and Dutfield, 2001;Orsini et al, 2008;Andersen et al, 2010;Schei and Tvedt, 2010;Oliva, 2011;Coolsaet and Pitseys, 2014;Morgera et al, 2014;Prip and Rosendal, 2015;Wyss, 2017) in order to be able to rank the best option to enable the attainment of these goals. The diversity in our literature sources allowed us to enrich our conclusions regarding stakeholder opinion.…”

Interactions between hard and soft power: The institutional adaptation of international intellectual property protection to global power shifts

“…The CBD case underlines the plausibility of our claim that the distribution of both hard and soft power matters in institutional adaptation to shifts in the global distribution of power. By contrast, alternative explanations focusing on either hard power only (Orsini and Diallo, 2015) or soft power only (Coolsaet and Pitseys, 2015; Wallbott, 2014) fail to account for the adjustment of the CBD regime:…”