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Fair and Equitable Negotiations? African Influence and the International Access and Benefit-Sharing Regime
Abstract and Figures
In 2010, parties to the Convention on Biological Diversity (CBD) adopted the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (access and benefit-sharing, or ABS). 1 Nagoya Protocol adoption resulted from a long set of negotiations on the making of an international ABS regime, triggered by a situation of distributive injustice: countries using genetic resources reap most of the benefits, while the costs related to the conservation and protection of these same resources are mainly carried by provider countries. Through the establishment of an international ABS regime, benefits and burdens arising from the use of genetic resources should thus be shared fairly between user and provider countries. Based on principles of distributive justice, 2 the notion of fair and equitable sharing raises two well-documented issues. First, theories of distributive justice are ill suited to the study of the underlying conditions that shape decisions leading to the distribution of benefits and burdens. These conditions are rooted in the material, social, cultural, and institutional circumstances within which the decision-making process takes place. 3 Second, given that different conceptions of morality and justice coexist, fair agreement conditions tend to be better approached by defining the conditions of a fair decision-making process. 4 Fairness and equity of a benefit-sharing agreement thus depend on a decision-making procedure governed by the principles of procedural justice. The complexity and interdependence of an ever-growing number of multilateral environmental agreements and the unequal distribution of resources and (bargaining) power among states generates unequal participation opportunities. This article explains how the supposedly most disadvantaged participants manage to influence the decision-making process and the outcome document, thereby tending to procedural justice.
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