Washington Lawyer - May/June 2024 - 15

FEATURE
Known as " biopiracy, " the practice " refers either to the unauthorized extraction
of biological resources and/or associated traditional knowledge
from developing countries, or to the patenting of spurious 'inventions'
based on such knowledge or resources without compensation, " writes
Graham Dutfield in his 2004 book, Intellectual Property, Biogenetic Resources
and Traditional Knowledge.
For decades, developing nations with rich biodiversity have been demanding
that wealthy countries and private companies share the benefits
derived from these genetic resources - biological substances (from
the molecular to the species level) used for conservation, education, research,
and commercialization. While there is some agreement on the
principle of fairness, numerous observers of recently proposed treaties
and protocols fear that regulatory burdens will stifle critical research and
innovation.
'A CULTURAL IMPOSITION'
Current debates about biological resources involve " laws grounded in a
specific world view, laden with assumptions we don't think about, " says
Dutfield, professor of international governance at the University of Leeds
School of Law. For example, " we have rules in intellectual property that
draw lines, sometimes uncomfortable lines, between what is humanmade
and what is nature - the nature-culture or nature-artifact distinction
- upon which a whole body of law is founded, " he says.
" This is something that is
not understood in cultures
where there is a sense of relationship,
of kinship, with
the plant-animal world,
with physical features of
the land, and with what is
thought the spiritual world.
I think what we do need to
understand is if it feels completely
real to them, our legal
norms are a cultural imposition, "
Dutfield says.
Claudio Chiarolla, legal officer
at the Alliance of Bioversity
International and the
International Center for
Tropical Agriculture, sees
the roots of current genetic
resources discourse " in [the]
In the mid-1980s, the United Nations' Food and Agriculture Organization
(FAO) promulgated the International Undertaking on Plant Genetic Resources,
a nonbinding instrument ensuring that plant genetic resources
of economic or social interest would be made available for plant breeding
and scientific purposes. The resolution was based on the presumption
that such resources are a heritage of humankind that should be
available for all. The UN Law of the Sea Convention, finalized in 1982, also
referred to the common heritage theory.
The significance of links between intellectual property and trade was
officially recognized in the 1990s with the World Trade Organization's
(WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS)
Agreement. " For the first
time there was a global
expansion of intellectual
property that derived from
the minimum standards
for protection of patents
and also plants and variety
rights, " says Chiarolla, who
has contributed to several
United Nations environmental
programs. The
WTO-TRIPS intellectual
property regime has its
critics, who contend that
it promotes developed
nation norms for handling
intellectual property.
GRAHAM DUTFIELD
University of Leeds School of Law
history of colonialism where all natural resources and people were subjected
to rules that were not their own. "
Despite the ingrained history of bioprospecting, competing financial interests,
and the inherently complex nature of international cooperation,
there has been some progress toward the equitable sharing of genetic
resources under the principle of common heritage of mankind.
Prominent oceans law advocate Elisabeth Mann Borgese described the
concept in 1975 as having five key elements: Natural resources (1) cannot
be appropriated, (2) require a system of common management, (3) require
a sharing of benefits, (4) can be used for peaceful purposes only,
and (5) must be preserved for future generations.
Then in 1993 the UN Convention
on Biological Diversity
(CBD) came into force,
with " the fair and equitable sharing of the benefits arising out of the utilization
of genetic resources " as one of its key objectives. Under the CBD,
nations can use their national sovereignty to exercise control over the
genetic resources within their territories. The agreement was signed by
168 countries, including the United States, although the Senate has never
ratified it.
" There was a shift from conceding genetic resources, particularly plant
genetic resources, under the FAO undertaking as common heritage of
mankind to the principle of national sovereignty over national resources, "
says Chiarolla.
CLAUDIO CHIAROLLA
Alliance of Bioversity
Negotiations commenced to bring the earlier International Undertaking
on Plant Genetic Resources in line with the CBD principle of national sovereignty,
Chiarolla says. The resulting FAO International Treaty on Plant
Genetic Resources for Food and Agriculture in 2001 instituted a multilateral
system of benefit sharing for genetic materials from 64 key crops
and forages, notably through a Standard Material Transfer Agreement.
The treaty also recognized farmers' rights to protect their knowledge
and derive benefits, as well as participate in decision making at the national
level regarding conservation and sustainable use of plant genetic
resources.
In the 21st century, parties to the CBD sought more concrete implementation
of the convention's genetic resources provisions, leading to the
Nagoya Protocol on Access to Genetic Resources and the Fair and EquitaMAY/JUNE
2024 * WASHINGTON LAWYER 15
Courtesy of Claudio Chiarolla
Courtesy of Graham Dutfield
Washington Lawyer - May/June 2024

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