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

Abstract

This article assesses the effectiveness of the 2010 Nagoya Protocol to theConvention on Biological Diversity (CBD) for addressing "biopiracy" of geneticresources; that is, their biotechnological utilization in violation of eitherthe provider country legislation or mutually agreed contractual obligations.Biopiracy is defined as a problem resulting from a distributive conflict betweenprovider and user countries, the practical difficulties of monitoring theutilization of genetic resources in a transnational context, and the pervasivescientific uncertainty about the nature and extent of the problem. The NagoyaProtocol predominantly focuses on compliance management while lacking thenecessary enforcement provisions for deterring non-compliance through effectivemonitoring and sanctions. Using the example of recent European Unionimplementing legislation, this article underscores how parties may use theProtocol's legal ambiguities to soften its regulatory impact on domesticindustry. As a result, in light of both problem structure and regime design, theProtocol only offers modest improvements over the status quoante.Key words: Biodiversity; biotechnology; compliance; regime effectiveness; North-South relations