ABSTRACT
The concept of fair and equitable benefit-sharing emerged in the early 1990s 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 (IPR) 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 paper seeks to assess the potential of the concept in operationalizing fairness and equity while enabling agrobiodiversity conservation and sustainable use, in an increasingly complex legal and policy landscape of conflicting rights and policies. It explains its emergence in the context of the evolving principles of governance of agricultural biodiversity, on the basis of relevant provisions of the Convention on Biological Diversity and its Nagoya Protocol on access and benefit-sharing; 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, which was developed to address the specificities of plant genetic resources. Identifying linkages, challenges and key lessons, it concludes that the concept falls short of its promises, and 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.
