Beyond access and benefit-sharing: lessons from the law and governance of agricultural biodiversity

The concept of fair and equitable benefit-sharing emerged in the early 90s as a corollary to the principle of national sovereignty over natural and genetic resources. In the context of agricultural biodiversity use, it can be conceptualized in three ways: as a defensive tool to balance the injustices enshrined in the intellectual property rights system; as a development tool to reap part of the benefits of the emerging biodiversity market; and as an incentive, to reward and enable farmers' continued contribution to conservation. This article seeks to assess the potential of the concept in operationalizing fairness and equity in agricultural biodiversity governance, in an increasingly complex legal and policy landscape of conflicting rights and policies. It briefly explains its emergence in the context of the evolving principles of governance of agricultural biodiversity; and analyses the structure and application of the Multilateral System of Access and Benefit-sharing established by the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) in the framework of intellectual property- and human rights-related processes. Identifying linkages, challenges and key lessons, which are useful for a wide range of processes within and beyond the international environmental law realm, it concludes that the concept falls short of its promises. It thus calls for imagining new dialogues and concepts to redefine the boundaries between what must remain in the public domain, what may be managed as a common and what may be privatized.