So, what does all this tell us about the central question, how a fair and equitable benefit-sharing mechanism can best be realized? One of the main outcomes is that fair and equitable benefit-sharing is not merely about the mechanics of an ethical distribution (or exchange) of benefits. Before anything else, we need to consider two important prerequisites that have to be satisfied if a fair and equitable benefit-sharing mechanism is even to have a chance of being properly developed and sustained.
One relates to the socio-political power differences between the different stakeholders in ABS negotiations at both national and international levels. For this reason, the principle of procedural justice, with its emphasis on fair and accurate processes and equal participation, certainly needs to be emphasized. This means, amongst other things, that investments in the negotiation capacities, knowledge base, and provision of access to legal services of developing countries and traditional communities especially is and will be a long term necessity. It is important to realize that ABS is not an issue for national governments and international organizations alone, but includes the involvement of many non-state actors at all levels, from the local to the international. Careful analysis of the complex relationships between these stakeholders, and especially between national governments and traditional communities (e.g., regarding their respective rights over specific resources), is required in order to facilitate a fair process and equitable outcome of negotiations.
Closely related to this issue are the substantive, cultural differences, and worldviews involved. Most important here is to realize that stakeholders may have radically different conceptualizations of the world (cosmos) and completely different understandings (if any at all) of such central notions as genetic resources, property, and sharing. The principle of cognitive justice aims to emphasize the equal status of these different conceptions as a starting point for debate and genuine dialogue. This would, for example, imply that the link between benefit-sharing and intellectual property rights is weakened or, at least, not taken for granted. If a party to a particular ABS agreement is uncomfortable with the application of intellectual property rights to their resources or the products derived from them, this should be respected and other forms of product protection considered.
Moving beyond these two preconditions, we can make the generalization that, despite the evident diversity of approaches to the concept, benefit-sharing aims to realize some form of compensation and of equity. These two ideas were found to be fundamental to benefit-sharing. Together with the more specific objectives of biodiversity conservation and food security, this give us some indications as to how a fair and equitable benefit-sharing mechanism might best be organized.
The main conclusion to be drawn is that the current exchange model of ABS in the CBD, and subsequent focus on commercial transactions and contracting in ABS policies, is not the best way forward. There are several reasons for this. One is that the resources in question often do not fit a two-party exchange model. Of course, in some cases a specific provider and user can be discerned, who can then mutually negotiate the desired ABS contract. But such situations are exceptional. Because of the non-rival and/or non-excludable characteristics of plants and related (traditional or genetic) information, it is practically impossible for providing countries and communities to control their movement and, therefore, to secure their fair exchange.
This situation is particularly problematic because, up until now, the responsibility for benefit-sharing has largely been left to the national governments and local communities of developing countries. But many of these have very little capacity (and many other priorities) to put ABS policies in place, let alone to track the movement of all their biological resources and traditional knowledge. Furthermore, many of these resources have long since left their territories and can, for example, be found in botanical gardens, genebanks, and libraries around the world. This state of affairs, where the resources in question are extremely difficult to monitor, already widely dispersed, and user measures are almost non-existent, has created many loopholes in the current system of ABS. Indeed, if a user-party is not actually collecting its resources in a provider-country (under a Material Transfer Agreement), then it is soon unclear what benefit-sharing obligations, and to whom, are required, which simply means that no benefit-sharing will take place.
Another problem with the current transaction model of the CBD is that most attention (and expectation) is and has been paid to commercial contracts as the primary way to put the ABS policies in practice. Here, the problem is not only that there has never existed a market for plant genetic resources and traditional knowledge, but also, and more pressingly perhaps, that commercial mechanisms leave very little room to incorporate broader, social goals, such as securing human needs and equity. Furthermore, food security and conservation goals also are not easily captured in contracts between two parties. Added to the fact that the focus on commercial contracts is oblivious to the alternative worldviews of many traditional communities, we have to conclude that the current ABS model of the CBD is in need of fundamental revision.
How then should (or can) a fair and equitable benefit-sharing mechanism be organized? An alternative model, briefly mentioned above, might focus on the utilization of resources as the trigger for benefit-sharing rather than their specific exchange. Tvedt and Young (2007) have made a detailed study of the central requirements for an ABS system that would build primarily on the utilization-trigger. Three important steps towards such a system that can be extracted from this study are the followinmg: First, the development of clear and effective legislation in the user countries, which involves various disincentives for non-compliance and incentives for compliance. Second, the definition of exact conditions for benefit-sharing, such as a clear start and end point for benefit-sharing obligations, and “internationalized mechanisms” that regulate the collection and distribution of “orphan shares” if the source country or country of origin is unknown or undisclosed. And third, the development of clear standards for the valuation of resources and benefit-sharing in order to provide a concrete basis for the whole system and prevent unrealistic expectations and uncertainties for both providers and users.
Obviously, such a model faces many practical challenges, but in emphasizing the responsibilities for benefit-sharing at the user side it starts with an important advantage. If users and user countries are serious about benefit-sharing and commit themselves to the corresponding objectives in the CBD and ITPGR, they have to work towards the realization of those objectives. In fact, the principle of equity holds that the strongest parties have the biggest responsibilities in this regard. This implies, for example, that “if the experiential data on ABS to date indicates that it has not been financially beneficial to developing countries, the Contracting Parties have an obligation to make it beneficial, rather than to drop it as an unpromising concept” (Tvedt and Young 2007, p. 94). So, in contrast to the current situation, we have to conclude that the well-to-do countries, companies, and research organizations must take their responsibility and make the system work.
Other advantages of an utilization model vis-à-vis the current ABS system of the CBD are that it does not focus on the movement of plant genetic resources,Footnote 12 and that it demands the sharing of benefits irrespective of whether a specific ABS contract is attached to them. Tvedt and Young hold that determining whether “the user took an action that is considered to be the ‘utilization of the genetic resources’ [is] a question that can be answered objectively and documented by evidence” (Tvedt and Young 2007, p. 59). This will only be possible if the Contracting Parties to the CBD manage to clearly define exactly which activities do and do not constitute a utilization of genetic resources. If realized, this would mean that a clear entry point for when the ABS system applies can be defined. Together with the proposed user measures, this could cut out many of the current loopholes in the system and secure that benefit-sharing does actually take place.
The establishment of the requisite legislation is obviously an important step towards fair and equitable benefit-sharing. Although it does not in itself say anything about what a “fair and equitable” benefit-sharing arrangement is or should look like, if one takes into account that many developing countries and communities are frustrated with the historic and continuing use of “their” plant genetic resources and traditional knowledge without receiving anything in return, then one can imagine that the guaranteed implementation of benefit-sharing provisions is more than just a good move in the right direction. It is, in fact, a necessary precondition for fair and equitable benefit-sharing and crucial first step towards its realization.
A second step then is to establish clear standards for the valuation of resources and contributions and, thus, benefit-sharing. As argued, this valuation should not be based on commercial criteria alone, but needs to be informed by the broader objectives of benefit-sharing. First, it would be necessary for the international community to agree on some minimum standards for benefit-sharing, so as to provide a concrete basis for the whole system and facilitate the collection of the so-called orphan shares into an international fund. At the same time, however, the challenge is to leave enough room for the multiple objectives and perspectives as reflected in the diversity of approaches to benefit-sharing. What could be developed, therefore, is a “menu of ABS options,” which would lay out, next to the minimum standards of benefit-sharing, several forms of sharing information, technology, and capacity.Footnote 13
Ultimately, one has to decide how, and to whom, the benefits should be distributed in a fair and equitable way. This article has discussed the main allocation criteria that can be employed in this respect. It has been shown that entitlements can set clear standards for distribution, but with respect to plant genetic resources and traditional knowledge it is often unclear who their legitimate right holders are. If the (group of) right holder(s) to a particular resource is well-defined, then the user and provider parties can mutually negotiate the benefit-sharing terms and process (taking into account, of course, the standards set by the international community on, for example, issues of procedural and cognitive justice, compliance, and the minimum standards for benefit-sharing). And where resource right holders are not well-defined, a multilateral approach should be followed in which the benefits are distributed according to a combination of the other principles discussed—one could, for example, set allocation criteria that aim to compensate regions or groups of people (countries, communities) in accordance to their (historical) contributions to the conservation of biodiversity and food security, and with special attention to those with particular needs in this respect. In this way, benefit-sharing answers to the strong demands for compensation without being undermined by an ineffective exchange model, and at the same time its application is strongly informed by the principles of equity and need, which are elemental to the concept.