Is the Nagoya Protocol designed to conserve biodiversity?

Correspondence Aysegul Sirakaya, Ghent Rolin Jacquemyns International Law Institute (GRILI), Ghent University, Ghent, Belgium. Email: aysegul.sirakaya@ugent.be; aysegulsirakaya@gmail.com Societal Impact Statement We have entered a monumental era in terms of realizing the impact of biodiversity loss on our everyday lives. We suffer from the consequences of biodiversity loss due to overexploitation of natural resources as we continue failing to restore biodiversity. One of the major consequences of biodiversity loss is the emergence of global pandemics. We are in urgent need of realizing the full potential of all of the international legal instruments on creating incentives for biodiversity conservation. Access and benefit-sharing or ABS is an international legal framework implemented with the hopes that it would provide such incentives. Therefore, a legal analysis on whether ABS is designed to achieve biodiversity conservation is of crucial importance in achieving international conservation targets. Summary • The international ABS regime was put in place with the hope that it would aid the international community in conserving biodiversity and thereby attaining its international conservation targets. • This paper conducts an empirical analysis of all of the relevant documents generated during the negotiations of the Nagoya Protocol, the major international legal instrument on ABS, to determine whether the design of the regulatory mechanisms do indeed lead to creating such incentives for conservation. • Throughout the negotiations for the Nagoya Protocol, many suggestions were made by the Parties and relevant stakeholders regarding how ABS would result in creating incentives for biodiversity conservation. While some presuppose that benefit-sharing will inherently result in biodiversity conservation, others specify some economic incentives which would then generate such incentive that would result in governments directing the received benefits into conservation activities. • The paper then moves on to analysing the adopted text of the Nagoya Protocol with the aim of mapping the obligations of Parties to channel benefits into conservation. It is concluded that the design of the Nagoya Protocol does not intrinsically lead to biodiversity conservation but benefit-sharing is a tool that can be directed towards biodiversity conservation.


Societal Impact Statement
We have entered a monumental era in terms of realizing the impact of biodiversity loss on our everyday lives. We suffer from the consequences of biodiversity loss due to overexploitation of natural resources as we continue failing to restore biodiversity.
One of the major consequences of biodiversity loss is the emergence of global pandemics. We are in urgent need of realizing the full potential of all of the international legal instruments on creating incentives for biodiversity conservation. Access and benefit-sharing or ABS is an international legal framework implemented with the hopes that it would provide such incentives. Therefore, a legal analysis on whether ABS is designed to achieve biodiversity conservation is of crucial importance in achieving international conservation targets.

Summary
• The international ABS regime was put in place with the hope that it would aid the international community in conserving biodiversity and thereby attaining its international conservation targets.
• This paper conducts an empirical analysis of all of the relevant documents generated during the negotiations of the Nagoya Protocol, the major international legal instrument on ABS, to determine whether the design of the regulatory mechanisms do indeed lead to creating such incentives for conservation.
• Throughout the negotiations for the Nagoya Protocol, many suggestions were made by the Parties and relevant stakeholders regarding how ABS would result in creating incentives for biodiversity conservation. While some presuppose that benefit-sharing will inherently result in biodiversity conservation, others specify some economic incentives which would then generate such incentive that would result in governments directing the received benefits into conservation activities.
• The paper then moves on to analysing the adopted text of the Nagoya Protocol with the aim of mapping the obligations of Parties to channel benefits into conservation. It is concluded that the design of the Nagoya Protocol does not intrinsically lead to biodiversity conservation but benefit-sharing is a tool that can be directed towards biodiversity conservation.

K E Y W O R D S
access and benefit-sharing (ABS), biodiversity conservation, genetic resources, incentives, Nagoya Protocol

| INTRODUCTION
We suffer from the consequences of biodiversity loss due to overexploitation of natural resources as we continue failing to restore biodiversity (Cardinale et al., 2012). International law provides for mechanisms for conservation of biodiversity resulting from utilizing nature. The system of access and benefit-sharing (ABS) aims to fairly distribute benefits between the providers of genetic resources (such as biodiversity-rich countries) and users of genetic resources (such as biotechnology or pharmaceutical companies, universities, collections such as botanical gardens or genebanks) deriving from scientific research and development on genetic resources (GR). The ABS system prescribes the Parties to the Convention on Biological Diversity (CBD) and the Nagoya Protocol (NP) to implement national legislation on providing fair access to users of GR while receiving fair and equitable monetary benefits (such as access fees, royalties and licence fees) or non-monetary benefits (such as technology transfer, participation in research and recognition of country of origin or capacity building). These benefits are to lead to biodiversity conservation (NP on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising from their Utilisation 2010).
The fifth Global Biodiversity Outlook (GBO), conducted under the auspices of the CBD in order to assess whether international conservation goals (such as Aichi Global Biodiversity Targets) have been met, warns us that none of our targets have been met due to the lack of effective restoration and conservation initiatives (Secretariat of the Convention on Biological Diversity, 2020).
GBO measures the achievements of ABS based on a range of indicators, research studies and assessments as well as national reports on implementation. Additionally, ABS has found its place in several targets within the United Nations Sustainable Development Goals (UN General Assembly, 2015). It is also highly likely that targets related to ABS will be an indispensable part of the Post-2020 Global Biodiversity Framework (CBD/POST2020/ PREP/2/1, 2020). Therefore, ABS has a palpable contribution to the achievement of international targets related to biodiversity conservation.
Since none of the Aichi Biodiversity Targets (CBD/COP/DEC/X/2, 2010), the universal targets on biodiversity conservation, will be fully met, there is a need to evaluate how ABS the major instrument expected to create incentives for conservation is performing to achieve its objectives. With this aim, this paper evaluates the link between ABS and biodiversity conservation by providing an overview of why ABS was perceived as an instrument that can achieve conservation and whether the mechanisms of ABS were designed to attain this overarching aim. The analysis of the existence and functioning of the link between ABS and conservation is done by analysing the official documentation from meetings and negotiations that led to the adoption of the international ABS regime, as well as the final text of the NP.

| MATERIAL AND METHODS
In order to comprehend how the international ABS framework was designed to conserve biodiversity, this study provides key points deriving from the comprehensive empirical analysis of all of the doc- Q3: Does the adopted text of the NP contain the regulatory mechanisms that lead to incentivizing biodiversity conservation?
The following sections of the paper are designed to answer these questions in the aforementioned order. The activities Parties to the CBD and relevant stakeholders refer to as the activities that lead to conservation can be categorized as follows: • Conservation research: taxonomic identification (as identification is perceived as the basis for conservation), surveys and inventories of biodiversity as well as its distribution and conservation assessments including red listing (Feit, von den Driesch, & Lobin, 2005; UNEP/CBD/WG-ABS/7/INF/2, 2009).
• Incentivizing to refrain from activities that create threats to biodiversity conservation (McNeely, 1988 In fact, the Parties and stakeholders, from the very early days of negotiating the international regime on ABS, have emphasized on the 'conceptual' link between benefit-sharing and conservation and sustainable use (UNEP/CBD/WG-ABS/5/7). The adopted final text of the NP has translated this conceptual link into the 'potential role' of ABS to contribute to the conservation and sustainable use of biological diversity (UNEP/CBD/COP/DEC/X/1, 2010).
While this was the perception regarding the role of benefitsharing in conservation, it is worthwhile to note that the Bonn Guidelines have provided for benefit-sharing activities such as transfer of R&D results, joint R&D activities, sharing conservation related information, capacity building, technology transfer, research on priority needs and training that was perceived to lead directly to conservation.
Paragraph 51 further exemplifies incentive mechanisms which are the removal of perverse incentives, use of well-designed economic and regulatory instruments and the use of valuation methods as a tool to inform users and providers. On paragraph 48, the Guidelines further specify that the benefits should be directed towards promoting conservation and sustainable use of biological diversity.
These benefits are then to be transferred from the users of GR to the providers of GR through establishing a national ABS system, as well as private contracts between users and providers of GR (

| USERS VS. PROVIDERS ON INCENTIVES
Various perspectives are visible on how such an incentive mechanism could be formulated. The international ABS framework has been formulated with the aim of balancing the needs of providers and users. This is traditionally viewed as addressing the inequality between lowand middle-income countries with rich biodiversity and traditional knowledge associated thereof and high-income countries with rich biotechnology and know-how. Therefore, the analysis below provides the opinion of these two stakeholders.
The perspective of the providers of GR focuses on emphasizing the following matters in order to incentivize biodiversity conservation in their countries: benefit-sharing would be based. They argue against a free market approach and deregulation of access to GR, as they believe neither GR nor traditional knowledge associated to GR will benefit from being traded as a commodity, because it values short-term financial gain over long-term conservation efforts. They remind that the treatment of ivory as a commodity did not lead to the conservation of elephants or their habitats. It is argued that, while monetary or non-monetary benefits would not be excluded, obtaining benefits should not be the sole aim of establishing these community proto-  Rosenthal, 1997).
• Access to technology irrespective of access to GR: some providers have suggested that an international mechanism, which would facilitate universal access to research and technology, that is linked to conservation and sustainable use of biological diversity, irrespective of access to GR, would enable provider countries to effectively conserve their biodiversity (UNEP/CBD/WG-ABS/7/5, 2009). Additionally, participation in development of products with GR would also allow providers to become users of GR which can then generate an additional incentive (UNEP/ CBD/WG-ABS/7/6, 2009).
• Value of GR: some providers have stipulated that attributing value to GR and obtaining benefits therefrom would create incentives This comprehensive study analyses the available economic incentives for the conservation of biological resources and prevention of over-exploitation. Hence, the users that cite this study arguably view GR as physical, biological material. Some users, however, cite the study of Rosenthal (1997) which concludes that providing benefit-sharing arrangements during bioprospecting for drug discoveries creates incentives for conservation and provides alternatives to destructive use. Rosenthal's study advises users to insert benefit-sharing clauses in contracts that may have the potential to conserve biodiversity. It therefore does not speak of the inherent incentive for biodiversity conservation through bioprospecting but rather a negotiated 'potential' outcome. The users that argue this point of view also often refer to the INBio-Merck Agreement as the proof of such possibility (Blum, 1993; UNEP/CBD/WG-ABS/5/INF/1, 2007). Another study that is discussed during the negotiations is the one from Deke (2004), which contends that GR, due to the value of the information they may contain, differ from the way natural resources traded as commodities are valued. Deke concludes that an effective conservation strategy should not only rely on market-based approaches. This is because the acquisition of GR is not the only economic activity that may have an impact on the ecosystems.

| HOW MUCH CONSERVATION DOES THE NP CONTAIN?
Resulting from the negotiation between the above-mentioned opinions, the final text of the NP contains the following consideration on the link between ABS and biodiversity conservation:  • Contribution to conservation and sustainable use: Article 9 states that Parties shall encourage users and providers to direct benefits arising from the utilization of GR towards the conservation of biodiversity and sustainable use of its components. Therefore, the obligation of the Parties is encouraging the users and providers to direct benefits into conservation. In other words, the Parties are not obliged to ensure the benefits are directed to conservation.
The article does not further mention how this encouragement could occur.
• Global multilateral benefit-sharing mechanism (GMBSM): Article 10 prescribes that the Parties shall consider the need for and modalities of a GMBSM for transboundary GR or for those that obtaining PIC is not possible. The wording of the article does not provide for examples of situations in which obtaining PIC would not be possible. One might argue that this could apply to large scale sampling, accessing microorganisms (UNEP/CBD/NP/COP-MOP/2/10*, 2016) or to the accessions of digital sequence information (DSI) through public databases (Bond & Scott, 2020). In all three cases, the issue related to the traceability of the origin as well as the application of legal requirements thereof has been previously pointed out (Oldham, 2020;SCBD, 2018). The next sentence of Article 10 contains the only clear obligation of the Parties to channel benefits into biodiversity conservation as it prescribes the following: 'The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally'. Both providers and users support enacting a mechanism within the international ABS regime to ensure access does not result in a negative consequence on biodiversity and ecosystems. Such approach also presupposes that access to genetic resources incorporates physical access and perhaps access to these resources in bulk.
Another group of users stipulated that the users would provide such incentives through negotiating benefit-sharing terms within bilateral agreements, regardless of the physical aspect of access.
Hence, the creation of incentives that lead to conservation would rely on the negotiation of each bilateral agreement. In this case, there indeed is a potential link between ABS and conservation yet fully reliant on the stakeholders' interpretation, negotiation skills and preference. In addition, it is suggested that bioprospecting can also lead to biodiversity conservation by enacting benefit-sharing provisions related to the different triggers during the R&D pipeline.
While acknowledging such potential, one must note that the majority of these benefit-sharing modalities are agreed upon in private commercial contracts often bound by confidentiality (Deke, 2004;SCBD, 2008). Hence, it is not possible to fully ascertain nor monitor whether these private contracts result in incentives that are then channelled directly into conservation. Additionally, as demonstrated in De Roeck (2020), provider countries have a myriad of approaches in determining whether and to what extend they will channel the benefits they received into efforts of biodiversity conservation. This does not exclude other possible means of channelling benefits that would result in enhancing fairness and equity and inclusiveness through ABS (Normand et al., 2020;Robinson, 2015).
Nevertheless, it portrays that the design of ABS does not intrinsically lead to biodiversity conservation, unless we are talking about an ABS system in which users strongly rely on accessing material in bulk or they frequently and subsequently access GR from the same provider.
The NP has been adopted as a system that leaves biodiversity conservation dependent on the national laws and policies of the provider country. In other words, it is completely up to the provider country to channel benefits obtained through their ABS system into conservation, with the exception of the GMBSM which is the only mechanism within the NP that obliges the Parties to channel the benefits into biodiversity conservation. The latest discussions on GMBSM's modalities display that it could apply to the situations where physical access to genetic resources is not required or situations that a bilateral ABS system would not be able to address. This would then allow for the creation of a direct obligation between channelling benefits deriving from bioprospecting into biodiversity conservation.
Regarding the bilateral agreements between providers and users, there currently exists no direct monitoring mechanism on whether those agreements led to biodiversity conservation, which also results in the lack of data when reviewing the effectiveness of the NP. A crucial element for the GMBSM therefore would be to ensure such a monitoring mechanism would be in place or such transparency would exist as the building block of the GMBSM.