Biopiracy after the Nagoya Protocol: Problem Structure, Regime Design and Implementation Challenges

Abstract

This article assesses the effectiveness of the 2010 Nagoya Protocol to the Convention on Biological Diversity (CBD) for addressing "biopiracy" of genetic resources; that is, their biotechnological utilization in violation of either the provider country legislation or mutually agreed contractual obligations. Biopiracy is defined as a problem resulting from a distributive conflict between provider and user countries, the practical difficulties of monitoring the utilization of genetic resources in a transnational context, and the pervasive scientific uncertainty about the nature and extent of the problem. The Nagoya Protocol predominantly focuses on compliance management while lacking the necessary enforcement provisions for deterring non-compliance through effective monitoring and sanctions. Using the example of recent European Union implementing legislation, this article underscores how parties may use the Protocol's legal ambiguities to soften its regulatory impact on domestic industry. As a result, in light of both problem structure and regime design, the Protocol only offers modest improvements over the status quo ante.

Biodiversity; biotechnology; compliance; regime effectiveness; North-South relations