The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing (Protocol) has been hailed as providing unprecedented legal support for indigenous and community control over genetic resources and associated knowledge by ensuring that such groups benefit more equitably from the use and subsequent proceeds of biological resources. This paper will analyse this claim critically, situating access and benefit sharing (ABS) regimes within the broader political economy of intellectual property articulated in the negotiations of the TRIPS Council monitoring the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD). While the CBD principle of sovereignty over natural resources allows biodiverse developing state parties to regulate access to intellectual and genetic resources subject to national laws and the aims of the CBD, the concept of ‘facilitated access’ used to fulfil this right attaches itself purely to state parties and does not necessarily improve the lot of local and indigenous peoples. Indeed, the implementation of state level access regimes together with the principle of downstream benefit-sharing effectively excludes local people from exercising any autonomous legal rights over resources and rather creates a state of legal dependency among knowledge and resource rich communities on dominant and exclusionary IPR structures. Therefore while the material interests of local and indigenous communities may have been addressed in a limited manner by the Protocol – for instance in terms of strengthening provider state obligation to implement benefit-sharing schemes – ABS regimes inherently preclude secure legal recognition for local and indigenous control over intellectual and genetic resources. Moreover the general lack of legalisation achieved by the Protocol stakes even these limited ‘gains’ upon further negotiations designed to flesh out its provisions and on the actions of national governments not predisposed to ensuring the equitable participation of local and indigenous communities in law-making processes.
Nagoya protocol, access and benefit sharing, traditional knowledge, farmers’ rights, intellectual property rights, sui generis, political economy.