Convention on Biological Diversity and
TRIPs
The
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),
which is administered by the World Trade Organization (WTO), requires patents
to be available for any inventions—whether products or processes, in all fields
of technology—that are new, suitable for industrial application and that
involve an inventive step. Patents are particularly important in the life
sciences and biotechnology sectors because of the expense of doing research in
these fields and the rapid pace of innovation. Consequently, life science and
biotechnology firms stand to gain from the agreement. Another important
multilateral agreement is the Convention on Biological Diversity (CBD). The
CBD, opened for signature at the 1992 Earth Summit, has as its three objectives:
i. the conservation of biological diversity; ii. the sustainable use of its
components; and iii. the fair and equitable sharing of the benefits arising out
of the utilization of genetic resources, including by appropriate access to
genetic resources and by appropriate transfer of relevant technologies. The guiding principle of the CBD is that
states have sovereign rights and responsibilities with respect to the
exploitation of their own resources, including biological and genetic resources
In the early 1990s, it was finally recognised at the
international level that the industrial system of production and its drive for
continued growth at all costs, was literally costing the Earth. The planet's
life support systems are severely threatened, as evidenced by: increasing
climate instability caused by the greenhouse effect; dramatic levels of soil
and genetic erosion; the drying up of the equatorial rainforests leading to
unprecedented fires, which will add to climate instability; marine pollution
and the depletion of fish stocks and so on.
At the same time, there has been a realisation that local
and indigenous communities in developing countries, who have nurtured this
biological diversity and depend upon it, are equally under threat from the same
forces. Not only their livelihoods but their traditional knowledge systems and
practices of innovation, accumulated over generations, and their a
priori rights to this heritage, are being undermined by industry's
hunger to exploit and deplete biodiversity and claim exclusive ownership over
life forms.
The 1993 Convention on Biological Diversity (CBD) is a
legally-binding commitment to stop this destruction and secure the conservation
and sustainable use of biological diversity. Less than a year after the CBD
came into force, however, the World Trade Organisation (WTO) was established
with quite a different agenda.
The Convention is founded on the principle that local
communities generate and are dependent on biodiversity and should continue to
benefit from it. The WTO administers a global trading system, much of which is
founded on the private monopoly rights of transnational corporations over
biodiversity.
These rights and objectives clearly conflict. Yet both
treaties provide legally binding obligations for governments.
Basic principles
of the CBD
The CBD is a result of prolonged
international pressure to respond to the destruction of, and unequal profits
from, the biodiversity of the Southern hemisphere. After years of debate, the
Convention was agreed upon in 1992 and came into force in 1993. It is now
adhered to by 170 nations.
The CBD affirms:
•
The importance of the contribution of the peoples of developing countries to
the world's biodiversity.
•
That biodiversity is not a 'gift of nature', but the result of community
activities where women in particular play a vital role.
•
The fact that biological diversity is intrinsically co-dependent with diverse
cultures, knowledge systems, and lifestyles which generate and maintain it.
•
That in situ (local) conservation of biological resources is
more sustainable than ex situ (gene bank) conservation.
•
That rights for local communities, as well as states, are necessary to protect
biological resources and to encourage conservation.
•
That programmes and policies must be implemented to promote conservation and
sustainable use, as well as the sharing of benefits arising from the use of
biological resources.
Basic obligations
of the CBD
The CBD:
•
Recognises the sovereign rights of states over their biological resources (Art.
3 and 15).
•
Stipulates that access to biological resources can only occur with the 'prior
and informed consent' of states (Art 15.5).
•
Requires signatories to protect and promote the rights of communities, farmers
and indigenous peoples vis-รก-vis their biological resources and knowledge
systems (Art. 8j and 10).
•
Establishes access to the biological resources of developing countries on a
quid pro quo basis with technology transfer from the industrialised countries
(Art. 16).
•
Requires the equitable sharing of benefits arising from the commercial use of
communities' biological resources and local knowledge (Art 15.7).
•
Asserts that intellectual property rights must not conflict with the
conservation and sustainable use of biodiversity (Art 16.5).
The World Trade Organisation and TRIPs
The World Trade Organisation was set up six months after
CBD came into force. It promotes and oversees global rules on trade. In the
last round of GATT negotiations, which gave rise to the establishment of WTO,
the absence of strong intellectual property rights in developing countries was
said to be a barrier to trade, costing industrialised countries some $200
billion in lost royalties per annum. TRIPs was thus directed to bring
developing countries' IPR laws to the level which transnational trading
interests deem necessary.
The TRIPs Agreement:
•
Came into force on 1 January 1995 and must be implemented by all WTO member
states
•
Entails obligations for intellectual property rights available for all fields
of technology.
•
Sets up the first global system of IPR on biological diversity, and
specifically plant varieties.
•
Requires the application of either patents or an "effective" Sui
generis (i.e. unique) system, to "protect" (i.e. gain
monopoly rights over) plant varieties at the national level
• Is
subject to the same dispute settlement procedures as other WTO agreements:
failure to implement the terms of the agreement will result in trade
retaliation against the offending country.
TRIPs was designed to ensure that intellectual property
rights could be universally applied to all 'technologies', and these include
pharmaceutical products and biological materials such as plants and
micro-organisms, all of which must now be 'eligible for private property rights
by IPRs.
This idea of extending patents to biodiversity was strongly
resisted by developing countries during the GATT negotiation. This was based on
evidence that monopolies in the areas of food and health harm the interests of
the world's poor and efforts to conserve genetic resources.
TRIPs requires countries to provide patents on
products or processes from any field of technology which are new, represent an
inventive step and are capable of industrial application. States may limit the
availability of patents on inventions whose commercial use would offend
morality (Article 27.2). States may also exclude plants and animals from IPR
protection, but not plant varieties (Article 27.3b).
Because of this provision, biodiversity falls firmly under
the legal regime of TRIPs. Plant varieties must now be patentable or be open to
an 'effective sui generis system' of IPR. Plant variety
protection (PVP) is a 'soft' kind of patent system for agriculture. However,
plant variety protection has proven to be a legal incentive to breed uniformity
and restrict the rights of farmers and local communities working with
biodiversity. Here TRIPs' intentions are quite the opposite of the CBD's.
The rare studies conducted in countries where plant variety
protection has been in effect for decades, such as the United States, show that
this kind of legal system has resulted in: little impact in terms of
stimulating plant breeding; reduced information and germplasm flows from the
private to the public sector; a decreased role for public plant breeding; and
increased seed prices for farmers. Despite this, developing countries are being
compelled to adopt PVP - not on the basis of its merits for agriculture, but on
the basis of it appearing to satisfy the criteria of TRIPs.
Should TRIPS be implemented as it is, developing countries
will suffer an unprecedented loss of control over and benefits from their own
biodiversity
CBD and TRIPs: Conflicts
The conflict between CBD and TRIPs over
rights to biodiversity is deep and will force parties to decide which agreement
should take precedence over the other. There are at least three areas of
outright contradiction: in their objectives, systems of rights and legal
obligations. Both treaties are legally
binding for signatories, but their obligations pull countries in completely
different directions. A country which seeks to
implement community rights through a CBD-framed policy, could find itself in
serious contravention of the TRIPs Agreement.
* CBD recognises that states have national sovereignty over
their biological resources.
* TRIPs tries to introduce private individual rights over
the same. Within one country the states' sovereignty takes precedence, and the
CBD framework may prevail. But between a foreign IPR holder and a sovereign
state, the state's jurisdiction is limited and cannot countervail the IPR
holder.
The
conflicting rights and obligations between CBD and TRIPs
|
CBD Says |
TRIPs Says |
The Conflict |
|
Nation states have sovereign
public rights over their biological resources. |
Biological resources should be
subject to private intellectual property rights. |
National sovereignty implies that
countries have the right to prohibit IPRs on life forms (biological
resources). TRIPs overlooks this right by requiring the provision of IPRs on
micro-organisms, non-biological and microbiological process, as well as patents
and/or sui generis protection on plant varieties. |
|
The use or exploitation of biological
resources, traditional knowledge, innovations and practices relevant to the
use of biodiversity must give rise to equitably shared benefits. |
Patents must be provided for all
fields of technology, therefore the use or exploitation of biological
resources must be protected by IPR. There is no mechanism for sharing
benefits between a patent holder in one country and the donor of material in
another country from which the invention is derived. |
CBD gives developing countries a
legal basis to demand a share of benefits. TRIPs negates that legal
authority. |
|
Access to biological resources
requires the prior informed consent of the country of origin. It also
requires the 'approval and involvement' of local communities. |
There is no provision requiring
prior informed consent for access to biological resources which may
subsequently be protected by IPR. |
CBD gives states legal authority
to diminish the incidence of biopiracy by requiring prior informed consent.
TRIPs ignores this authority and thus promotes biopiracy. |
|
States should promote the
conservation and sustainable use of biodiversity as a common concern of
humankind |
The safeguarding of public health
and nutrition, and the public interest in general, shall be subject to the
private interest of IPR holders as reflected in the provisions of the TRIPs
Agreement. |
CBD identifies the public interest and
common good over private property and vested interests. TRIPSs does the exact
opposite. |
The Trade-Related Aspects of Intellectual Property Rights
(TRIPs) Agreement of the World Trade Organisation (WTO) threatens to make the
Convention on Biological Diversity (CBD) impossible to implement. Yet as an
international commitment, the CBD is as legally binding and authoritative as
TRIPs.
Over 130 countries adhere to both treaties. Because
the two agreements embody and promote conflicting objectives, systems of rights
and obligations, many states are questioning which treaty takes precedence over
the other.
In particular, TRIPs imposes private intellectual property
rights (IPRs) on the South's biodiversity while the CBD recognises the
collective rights of local communities to the same. Governments, scientists and
many social sectors accept that our survival depends on the conservation and
free availability of biodiversity, not on its privatisation.
References
·
The TRIPS Agreement and Biological
Diversity, IISD Trade and Development Brief, Prepared by IISD for the SDC - https://www.iisd.org/system/files/publications/investment_sdc_dec_2003_8.pdf?q=sites/default/files/publications/investment_sdc_dec_2003_8.pdf
·
https://grain.org/article/entries/20-trips-versus-cbd
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