Building the Nagoya Protocol Regime on Access and Benefit-Sharing: Institutional Design and Effectiveness

The Convention on Biological Diversity (CBD) was designed in accordance with the framework protocol approach, which comprises treaty bodies such as Conferences of the Parties (COP) and compliance mechanisms and sets out broad standards to be made more precise through the making of protocols. The CBD’s third objective, access and equitable sharing of the benefits arising from the utilization of genetic resources (ABS), was significantly developed by the Nagoya Protocol.
The purpose of this thesis is to study the Nagoya Protocol in terms of the building and design of an effective regime; a ‘special regime’ that in different ways deviates from general international law. The Protocol is examined from an institutionalist perspective, founded on the concept of ‘institutionalization.’ The thesis proceeds from the observation that states often build regimes to solve collective action problems. Focus is on institution-building as a means to ensure effectiveness, especially on the design and operation of the compliance mechanism.
The main research question is how the Nagoya Protocol’s effectiveness could be promoted, ensured and enhanced. This question is broken down into several more specific questions; how treaty bodies such as COPs are regulated by international law, etc. While international law focuses on form and powers, international relations research focuses on institutional design and the institution’s functioning in practice.
The thesis combines international regime theory and international legal theory. A significant part of the interdisciplinary work is conceptual; it deals with the shifts towards stronger emphasis on treaty coordination, effectiveness, and compliance. The regime theory used is social constructivist. International legal theory employs legal analysis based on the sources doctrine, as well as legal sociology. Social constructivism operates as meta-theory and a practice approach is applied.
The thesis is structured around one international relations (IR) topic and four international law topics; the Nagoya Protocol’s relationship with (1) treaty law; (2) state responsibility; (3) customary law; and (4) institutional law, respectively. It ties together insights from these topics and examines the implications they have for the design and effectiveness of the compliance mechanism.
One conclusion is that constructivism provides a fuller understanding than rationalism of institutions for ensuring effectiveness and how to design them. Another conclusion is that compliance has not replaced state responsibility, but rather provides COPs with authority to impose coercive measures in response to non-compliance. A main contribution is the further integration of international law and international relations as an interdisciplinary research tool which enables the generation of practical knowledge about how to design effective compliance mechanisms.