How to Break the Deadlock Preventing a Fair and Rational Use of Biodiversity

Abstract

Sixteen years after the adoption of the Convention on Biological Diversity (CBD), the hopes in successful exploitation of genetic resources for the benefit of biodiversity‐rich host countries, as well as of humanity at large, have not materialized. Instead of aiming all efforts at achieving “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources”, the defined objectives of the CBD, based on the logical pattern that benefit sharing presupposes a generation of benefits, which in turn presupposes successful utilization of genetic resources, the international debate is captured by more or less politicized and fruitless debates as to how to anchor internationally in patent law a requirement of indication of origin of biological material. Here some reflections on the recent negotiations within the World Trade Organization and the World Intellectual Property Organization are offered. However, the main focus is on national access and benefit‐sharing legislation of some biodiversity‐rich countries, which although is the key for achieving the CBD objectives, has not been paid the attention it necessitates. Based on a catalogue of questions of high practical importance, laws of Brazil, India, Peru, the Philippines, South Africa and some other countries are examined and suggestions made as to how to overcome the overall detrimental existing deadlock.

Protection of Traditional Cultural Expressions in Latin America

“…247 The Peruvian Constitution, when providing that "the State shall respect the cultural identity of rural and native communities," includes herein the recognition of the intellectual rights of indigenous peoples. 247 For questions of compatibility of such prohibitions or sui generis provisions with the international framework on intellectual property rights, namely, TRIPS, see Straus (2008) 229-295. 249 These communities are granted autonomy in their organization, communal work, and the use and free disposal of their lands, as well as in economic and 244 Article 215 of the 1988 Brazilian Constitution.…”

“…2186-16 directly covers the kind of TCEs that are associated with genetic resources, and regulates direct access to such TCEs: According to its Article 1, para. andStraus (2008) 229-295. 2186-16 regulates the "access" to "traditional knowledge associated with genetic heritage, relevant for the conservation of the biological diversity, the integrity of the genetic patrimony of the country and for the use of its components."…”

Biological prospecting: the ethics of exclusive reward from Antarctic activity

“…Complicating factors include the lack of specific regulation of Antarctic bioprospecting, industry protection of intellectual property rights if bioactivity potential is identified, and the duty to disclose the origin of biological resources, as required under the proposed Art. 29bis of the Agreement on Trade-Related Aspects of Intellectual Property Rights -TRIPS (Straus 2008).…”

“…The problems in Antarctica are mirrored elsewhere in the world, even though similar barriers do not exist. While states have agreed in principle about access, benefit-sharing and maintaining the integrity of the patent system, they have not been able to agree on how to achieve these objectives (Straus 2008). Furthermore, even those states that do have national legislation embodying these 3 objectives (which are easier to achieve under circumstances where ownership of resources is known) have not met basic CBD require-ments for clear, simple and transparent arrangements or balanced competing interests (Straus 2008).…”

Biodiversity Fetishism and Biotechnology Promises in Brazil: From Policy Contradictions to Legal Adjustments

“…At that time, new uses for biological resources, particularly those emerging from advances in genetic engineering and biochemistry, as well as free access to these resources by stakeholders from northern nations with scientific and technical capabilities that, it was assumed, would add considerable value to these resources, led to demands by southern nations for an international system of access and benefit sharing (ABS) (Beurier, ; Hermitte, ; Stone, ). Article 15 of the CBD was designed to remedy this state of affairs (Glowka, ), subjecting access to genetic resources to Prior Informed Consent on the part of the supplier State and a sharing of benefits derived from their exploitation (Young, ), while also imposing the obligation of facilitating access, even if this second aspect is often neglected in practice (Grajal, ; Straus, ).…”