1The theme chosen for the Conference of the Parties (COP15) to the Convention on Biological Diversity (CBD) could hardly have been more timely:  Ecological Civilisation: Building a Shared Future for All Life on Earth. COP15 was originally due to take place in Kunming in October 2020. Its postponement, as a result of the COVID-19 pandemic, offers a neat illustration of the inextricable links between biodiversity, human well-being and the health of the planet.

2The priority of COP15 is to adopt a global strategic framework to ensure that “by 2050, biodiversity is valued, conserved, restored and wisely used, maintaining ecosystem services, sustaining a healthy planet and delivering benefits essential for all people.” This framework invites each country to make its own commitments in accordance with their development policies, and thus to contribute to the attainment of the Sustainable Development Goals.¹1

3While reducing threats to biodiversity is crucial, we also need to meet the needs of the world’s population. In order to set and meet ambitious targets, developed nations will need to devote substantial financial resources to supporting the ecological transition in poorer countries. The conservation of ecosystems, species and genetic diversity will need to be combined with fair and equitable sharing of benefits between countries and communities. The third objective outlined in the 1992 Convention on Biological Diversity (CBD) – “fair and equitable sharing of benefits arising from the utilisation of genetic resources and traditional knowledge associated with genetic resources” – covers this priority. It is significant to note that Access and Benefit-Sharing (ABS) is both a virtuous objective of the strategic framework for 2050, and also a point of contention in the COP15 negotiations.

4This book is entirely devoted to ABS, and different forms of reflection, experience and dialogue relating to the Nagoya Protocol constitute the unifying thread that runs throughout these pages. Is the Protocol, in its current design and state of implementation, contributing to a “transformation in society’s relationship with biodiversity and [ensuring] that, by 2050, the shared vision of living in harmony with nature is fulfilled” (CBD, 2020)? How might it be possible to live more harmoniously together when nature and cultures are under such pressures?

ABS – Access and Benefit-Sharing

5Conservation and sustainable utilisation of biodiversity, the first two objectives of the CBD, are all about protecting nature from predatory human activity. The third objective is largely founded upon the assumption that the utilisation of genetic resources for research purposes, both public and private, leads to the development and commercialisation of products derived from these resources or knowledge, and could thus be a source of income for indigenous peoples and local communities and for developing countries with rich reserves of biodiversity. In boosting the visibility of their contributions to knowledge and enhancement of the living world, and promoting the sharing of the benefits derived from biodiversity, the CBD was driven by considerations of ethics and justice. But the CBD also ushered in a major paradigm shift: genetic resources thus no longer belong to the “common good” forming part our human common heritage, but are instead subject to the sovereignty of States and the rationale of the market economy. All access to and activities involving knowledge of biodiversity, viewed as a source of benefits, must henceforth be covered by access and benefit-sharing procedures (ABS), negotiated through bilateral dialogue with national governments, who maintain sovereignty over their genetic resources.

6Considering the difficulties involved in implementing such sharing arrangements, and in order to provide a degree of legal security to stakeholders, the CBD was completed by a legally-binding agreement: the Nagoya Protocol, signed in 2010 and taking effect as of 2014. The document requires signatory parties to transpose the obligations of the Protocol into their respective national legislations, focusing principally on the rules governing access to genetic resources: procedures for ensuring the Prior Informed Consent (PIC) of provider countries or representatives of communities whose knowledge will be used, as well as Mutually Agreed Terms (MAT) for sharing arrangements, including expected results and monetary and non-monetary transactions between the partners. “By promoting the use of genetic resources and associated traditional knowledge, and by strengthening the opportunities for fair and equitable sharing of benefits from their use, the Protocol will create incentives to conserve biological diversity, sustainably use its components, and further enhance the contribution of biological diversity to sustainable development and human well-being.” (Nagoya Protocol, Introduction, 2010)

7Although the term does not appear in this diplomatically-phrased statement of intent, the Protocol also reflects a commitment to ending practices considered to constitute biopiracy, i.e. the illegitimate appropriation of resources and knowledge by industrialised countries and their researchers, at the expense of developing countries with rich biodiversity reserves, and their indigenous communities. The Protocol thus heralds a new era in relations with people who live in close proximity to nature. For the first time, an international agreement requires consent to be obtained and the benefits derived from the utilisation of traditional knowledge to be shared. The rights of communities and the national legislation of the countries from which resources are taken have thus been reaffirmed. Biological specimens are now recognised as being inextricably linked to their ecological, socio-cultural and economic context. The profile of research ethics has received a considerable boost, and non-monetary benefit-sharing, already established practice for many researchers, is now systematic. Such exchanges serve to enrich the dialogue between different forms of knowledge from different cultural horizons, reinforcing the ethical foundations of research practices. ABS can be regarded as a milestone in the broader process of decolonising research, or at the very least working to impose ethical standards upon research practices. Nevertheless, there is still much work to be done to establish a political and legal equilibrium capable of responding to claims for colonial compensation and a rebalancing of developmental inequalities.

8As of September 2021, the secretariat of the Convention on Biological Diversity lists 131 parties who have ratified the Nagoya Protocol, the majority of whom have also implemented national measures for access and benefit-sharing and established competent national authorities. This constitutes a major achievement for the UN, in a domain where past results have been mixed to say the least: governance of biodiversity.² Although none of the 20 Aichi Targets in the Strategic Plan for Biodiversity 2011-2020 (adopted in the year the Nagoya Protocol was signed) have been fully achieved, the recent Global Biodiversity Outlook lists ABS as one of 6 “partially-achieved” objectives (CBD, 2020).³

A simple mechanism which has proved hard to implement

9And yet, many of those directly involved are beginning to raise concerns about the limitations of the Protocol, from users and suppliers of genetic resources to scientists, industrial partners, national governments, NGOs and various local communities and indigenous peoples. The first decade of experimentation with the Protocol does not seem to have satisfied anybody. The cumbersome legislative machinery required to implement the Protocol has, as of yet, delivered relatively few transactions and very few monetary benefits for either national governments, local populations or indigenous peoples. The countless promised benefits of efforts to enhance the value of biodiversity have failed to materialise.

10Although researchers are unequivocal in their support for the spirit of sharing enshrined in the Protocol, they are also concerned that it might erect major obstacles to fundamental research on biodiversity (inventories and taxonomies, collections, conservation, evolutionary biology). Legislation focuses primarily on restricting access to resources, for both commercial and non-commercial purposes. A sharing agreement is required as soon as resources are accessed, well before research yields any results.

11A large proportion of the unresolved questions concern the interpretation of the scope of the Protocol, since some of the key terms remain vaguely or only generally defined (genetic resources, traditional knowledge, utilisation, research and development), as well as practical questions of implementation, specific to different countries and types of project. Does collecting specimens for a scientific inventory fall within the remit of the Protocol? How should specimens gathered for taxonomic identification be declared? How is it determined who has the authority to sign a PIC or MAT? Are myths and legends combining human and animal elements to be considered forms of traditional knowledge? In spite of the Protocol’s stated goal of harmonising procedures, they still vary considerably from one country to the next, and it is often difficult to know what regulations are actually in place in provider countries which have not established a dedicated ABS unit. The time required to obtain official authorisation, and the associated costs, may cause serious problems for research schedules and hamper urgent sample and data-gathering efforts – during pandemic crises, for example. The enhanced speed of research and innovation in the digital age, and the schedules imposed by research funding agencies, are quite at odds with the timescale of legal proceedings, standards and the processing capacities of ABS systems.

12Bureaucratic delays are not the only cause for concern. Questions have also been raised as to the compatibility of the Protocol with new scientific practices involving big data and international partnerships. The CBD, signed in 1992, and even the Nagoya Protocol of 2010, both assumed that life sciences would develop spectacularly over the coming years, but they had no concrete vision of what that progress would look like. Thanks to advances in genome sequencing technologies, research in the life sciences has moved into an age of in silico biodiversity, working with digitalised genetic resources. International databases containing digital sequence information (DSI) continue to swell at a breath-taking rate. The bilateral procedures promoted by the Protocol were not designed to keep track of billions of units of data, accessed by millions of users. The scientific community has complained that there is an inconsistency between a regulated access to material genetic resources in situ, the foundation of the ABS model, and more open access to international databases which, adopting the principles of open data, correspond to a certain, idealistic view of scientific progress made possible by the sharing of biological materials, data and knowledge… while leaving behind those countries who lack the technological capacities to capitalise on these advances. This inconsistency has a symmetrical impact on the “providers” of genetic resources and the traditional knowledge associated with them. Open access to DSI is viewed by countries in the Global South as a means of getting around ABS, akin to biopiracy, since the DSI is ultimately derived from research conducted using tangible biological resources. The expansion of the field of application of the CBD to encompass DSI will be a crucial issue in the negotiations at COP15.

13Paradoxically, the CBD has contributed to the development of the “green gold” myth, buoyed by fantastical visions of a market where providers and users exchange genetic resources and traditional knowledge for fabulous sums of money, made possible by immensely profitable biotechnological innovation. Reality has failed to live up to such expectations. The CBD Access and Benefit-Sharing Clearing House has recorded very few transactions involving monetary compensation, and the sums involved have been derisory compared with the cost of setting up ABS structures capable of designing and overseeing such procedures. Pharmaceutical multinationals have closed their research divisions devoted to natural substances, and commercial demand for in situ genetic resources is falling far short of the CBD’s expectations. The time has come to face facts: there is no lucrative market for genetic resources as defined by the Nagoya Protocol, which adopts a simple, linear view of innovation, whereby resources lead to products which generate income. This is only applicable to extremely rare cases in which specific molecules allow for the creation of a pharmaceutical blockbuster. With the pharmaceutical industry keeping a low profile, we are left with the impression that ABS mechanisms are focussed mainly on fundamental scientific research. And yet, the outcomes of fundamental research in terms of benefit-sharing are primarily a matter of boosting capacities through training, technology transfers and co-authoring of publications. Only rarely does money actually change hands. The registering of patents represents a minuscule proportion of academic research, and even then, in order to generate money a patent must be suitable for industrial and commercial applications, which often only bear fruit after years or even decades of research and development.

14Moreover, ABS has done little to improve relations between indigenous peoples and central governments in countries such as Brazil, Indonesia or French Guiana, nor to reassert their biodiversity rights and knowledge. Many communities, and even States, feel cheated when they are unable to secure recognition of their status as the source or proprietor of exclusive knowledge concerning plants and animals which have actually been identified and shared for many years. Indigenous peoples and local communities are rarely involved in the drafting of the regulations intended to protect their rights and aspirations, and which all too often use general terminology which does not accurately reflect the diversity and complexity of circumstances on the ground, particularly when they are not accustomed to the Western practice of viewing nature and culture as discrete entities. Only very rarely are their traditional structures recognised in national legislation as legal entities qualified to manage access to resources and negotiate agreements. With no tangible benefits forthcoming, this disillusionment can soon give way to suspicion (all bioprospecting activities are immediately decried as biopiracy), bureaucratic manoeuvring (excessive costs and lengthy delays in issuing authorisations) and even nationalistic positions (rekindling old North-South divisions).

15In the interests of legal security, the Nagoya Protocol identifies two categories of stakeholders – providers and users – capable of entering into contractual relations. It recognises their respective interests, behaviours and even lifestyles, resulting in divisive stereotypes conducive to political misappropriation. Despite its honourable intentions of promoting fairer and more equitable relations, the Protocol thus risks aggravating the very divisions it is supposed to combat. Can the ambitious, humanist objectives of the Nagoya Protocol really be achieved by a method of legalistic standardisation based on contracts, ownership and market forces?

Beyond the Nagoya Protocol…

16Nearly thirty years on, it is time to take a clear-eyed look at the practical and legal consequences of the virtuous framework promoted by the Convention on Biological Diversity and taken up in the Nagoya Protocol. These documents have succeeded in achieving an unprecedented degree of legal stability and security, thanks to the clarity and simplicity of the ABS mechanism. They have fostered the development of resource traceability, in order to combat the plunder of natural resources. They have contributed to a greater appreciation of the plurality of knowledge, and allowed for fairer dialogue on more even terms by recognising the rights of indigenous peoples and local communities. However, the Protocol has also contributed to the imposition of market-based values, attaching rights of ownership to resources, knowledge and patents in a manner which has exacerbated nationalist demands and made it more difficult for researchers to access biodiversity resources. Negotiations for a global system of biodiversity governance have faltered when it comes to finding innovative modes of sharing which satisfy the expectations of all the stakeholders, in a global research context in which living resources are increasingly available in an open-access digital form. Negotiations on how to fund the conservation of biodiversity suggest that expectations regarding the ABS’ role as a benefit-sharing mechanism must be scaled back. Might the real strengths of this system reside elsewhere?

17At time of writing, more perhaps than any other international convention or regulation, the Nagoya Protocol is at the heart of numerous contemporary debates regarding the relationship between human societies and nature in the Anthropocene era, and against the backdrop of the COVID-19 pandemic. It is time to rethink the processes by which we manipulate and appropriate the living world, along with the legal categories we transpose onto nature, and our definitions of indigenous, consent, ownership, knowledge and more. We must redefine, in a context of ecological emergency, the role and practicalities of research on biodiversity. Research practices need to be re-examined, with greater emphasis on co-construction in partnership with those directly affected. We can no longer afford to maintain such a disconnect between the places in which biological materials and local knowledge are gathered, and the places in which their academic or economic value is exploited. The Nagoya Protocol compels us to think, to strike up a dialogue, and to examine its real efficacy as an instrument for preserving biodiversity and achieving a fair division of its benefits between rich and poor countries. Although the CBD seemingly swept away the paradigm of nature as the common heritage of all humanity, by affirming the sovereignty of nation States over their resources, the issue of common ownership constantly and inevitably seeps into debates on these subjects.

18In order to take these debates fully and faithfully into account, we must combine theoretical approaches with feedback from the field, organise dialogues between different disciplines – law, anthropology, economics, genetics, botany, biology – and also between different stakeholders – researchers, managers and representatives of local communities. We begin by examining the goals of research into biological diversity – which is not without its power struggles, spanning everything from food security to building natural history collections – in order to get a clearer view of the consequences of the Nagoya Protocol for long-standing practices whose universalist dimension is now being contested by new perspectives on colonisation (Part 1). We then look back at the drafting process of the Nagoya Protocol, informed by a market-oriented vision connected with the expansion of biotechnologies, before subjecting the tools defined in the Protocol – the PIC and MAT instruments – to legal analysis (Part 2). We devote much space to the concepts of indigenous peoples and local knowledge, as defined in the Protocol and as they emerge from experiences in the field, and of course from the positions of the peoples directly involved (Part 3). Finally, since negotiations are still in progress, it appeared important to shine a light on the tensions surrounding the Protocol in order to better grasp the opportunities it provides to imagine a new future for research on the living world (Part 4).