Conflict Situations Between the Access and Benefit-Sharing and the WTO Regimes and Proposals for Their Resolution

There are inherent tensions between trade liberalization and environmental sustainability, two leading areas of international law. WTO law and the Convention on Biological Diversity (CBD) constitute two major bodies in the international law of trade and environment, and in particular the access and benefit-sharing (ABS) provisions of the CBD which were further specified and refined in the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol) have potential for tension due to the possibly trade-restricting potential of the latter body of law. Individual areas of potential conflict between the WTO and the ABS regime have been well-studied, particularly between the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the benefit-sharing provisions of the CBD and Nagoya Protocol. The current study expands on that earlier literature in two ways, first by examining the historical and political background of WTO law and the ABS regime, and second by further breaking down the potential conflict between the WTO and ABS regimes into several different categories and examining each in turn. The situations of conflict can be broken down into three categories: A textual conflict that makes it impossible for both treaties to be adhered to at once, a situation where a measure under one treaty may violate the other treaty, and a situation where the exercise of rights under one treaty undermine the objectives of the other. In response to these potential conflicts the paper suggests two solutions: Mutually supportive interpretation at the policymaking stage to avoid violations of or adverse effects on the objectives of other treaties and a harmonized consistent approach to ABS measures.