Facilitating or Restraining Access To Genetic Resources? Procedural Dimensions In Kenya

States have the right to regulate access to biological resources subject to national legislations. Allowing, restricting or prohibiting access, however, requires a balance to avoid contravention of the objectives of the Convention on Biological Diversity. The Convention requires that, in regulating access, the measures adopted do not become a hindrance to access. In many instances, however, this has been the case. Overreaction to previous cases of bio-piracy and over-enthusiasm to tap into the benefits from discovered genetic resources have caused many provider countries to either over-regulate or extremely complicate access procedures, thus deterring access. In some instances, over-regulation and complex procedures are to be blamed on the users’ reluctance to collaborate with providers in minimising or eliminating abuse. Also, the need to protect certain rights over genetic resources or of an intellectual (property) character, for example, might at times complicate regulation. While it is appreciated that such issues must also be taken into account in addressing and creating a balance in access and benefit sharing, a discussion embracing all these aspects cannot be captured within the ambit of this article. Focus is therefore laid on the procedural dimensions of access in Kenya and suggestions for improvement

An Introduction to the International ABS Regime and a Comment on its Transposition by the EU

This article summarises the core provisions of the ABS regime as required by the CBD and the NP. It identifies open questions and takes position concerning the interpretation of certain clauses. Looking at an exemplary transposition by a Contracting Party on the user side, it critically discusses the recent EU Commission Proposal for an ABS regulation

The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: What is New and What are the Implications for Provider and User Countries and the Scientific Community?

In culmination of the efforts by the Conference of the Parties (COP) of the Convention on Biological Diversity (1992) to adopt an international regime to regulate access and benefit sharing, the Nagoya Protocol was adopted at the COP 10 in Aichi-Nagoya, Japan, on 29 October 2010. The preceding negotiations aimed to produce a legal tool or regime that would oblige the parties to the Convention as well as resolve the long-standing stalemate between providers and users of genetic resources and traditional knowledge. The entire process leading to the adoption of the Protocol was marked with contention. Many issues remained unresolved until the last minute, when in night-long sessions a bargain was struck between provider and user states. The resulting text therefore abandons many legitimate issues raised by provider states that still existed in the final text of the ICG (Informal Consultative Group) as handed over to the Plenary for adoption. What is new in the Protocol? Who got what? In its current status, is the Protocol able to resolve the stalemate? Should parties adopt it and what are the stakes? This article gives an evaluation of the outcome of the negotiations based on these and other questions and assesses which implications this might have on provider and user states and the scientific community