Alternative models to the bilateral arrangement as a solution to ABS challenges

• Applicant: Dr. Evanson Chege Kamau
• Subject Area: Public Law
• Term: since 2022
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 505443509

The adoption and entry into force of the Nagoya Protocol made the rules on access and benefit-sharing (ABS) binding on parties raising high hopes concerning legal clarity, security and transparency for users and providers of genetic resources. It was hoped that challenges that revolved around these issues and negatively affected access, utilization and benefit-sharing would be easily resolved. Literature review that was done in the initial research proposal to the current ongoing project and recent research indicate the contrary: post NP ABS frameworks have made the access and utilization situation more complicated. The increased challenges are not solely a result of the flaws of the instrument itself and implementation flaws; they are also, among others, a result of the fast technological development leading to digitized genetic data sequenced from genetic resources. The debate on digital sequence information (DSI) raised questions among others on ownership and on scope bringing about the debate on whether DSI should be subjected to benefit-sharing with the origins of the genetic material. The above points raise the question whether the bilateral quid pro quo system is suitable for the regulation of ABS. In the 15th Conference of Parties (COP) to the CBD parties agreed to establish a multilateral mechanism of benefit-sharing from the use of DSI on genetic resources (MLM) and the recently concluded 16th COP in Cali, Columbia, adopted the modalities for operationalizing the MLM, including the global fund (the ‘Cali Fund’). It shows that existing challenges can be resolved through different models. The ongoing DFG project submits that the existing ABS challenges can be resolved through different models of linking or delinking sovereign rights and benefit-sharing thus improving access, utilization and sharing of benefits for the benefit of conservation. The aims of the project are, on the one hand, to identify exemplary aspects of reform within the current quid pro quo concept that speak for linking. In doing this it is important to ask whether and to what extent sovereign rights of providers and benefit-sharing by users shall remain linked. On the other hand, it examines alternative models going beyond the current concept that allow delinking thus setting research and development free, albeit under the condition that benefits from resulting products are shared. This application is made in order to enable the completion of the ongoing research project with the theme “Alternative models to the bilateral arrangement as a solution to ABS challenges”.

• DFG Programme: Research Grants