BIOPROSPECTING BACKGROUND PAPER: WHAT IS BIOPROSPECTING AND WHAT ARE OUR INTERNATIONAL COMMITMENTS?
KRISTY HALL The University of Auckland Masters Student School of Geography and Environmental Science April 2003
Biodiversity prospecting – or “bioprospecting” – is the examination of biological resources for features that may be of value for commercial development. Historically this is an ancient process dating from the 15th century, however the growing consumer demand for naturally sourced products, combined with advances in the pharmaceutical and agricultural industries has fueled bioprospecting activities worldwide. Traditionally, bioprospecting has included selective plant and animal breeding, fermentation processes, and the utilisation of plant and animal products for traditional medicines. In the last twenty-five years however, scientific and technological advances have pushed bioprospecting to the fore of research and development, and it is frequently utilised in activities such as genetic modification, biological control, and the development of pharmaceutical products, agrochemicals and cosmetics. Significantly, bioprospecting inherently involves the search for novel products in or produced by living organisms. This is separate from the downstream testing, commercialisation and marketing of such products which is encompassed in the broader field of biotechnology. By definition, bioprospecting excludes research conducted for non-commercial purposes, however it is cautioned that the division between academic and commercial research is becoming increasingly blurred. New Zealand has an array of international commitments of relevance to the management of bioprospecting. The Convention on Biological Diversity and the United Nations Convention on the Law of the Sea are the two international treaties which specify New Zealand’s jurisdiction and rights over the utilisation and management of our biological resources. The World Intellectual Property Organization, the World Trade Organization and the International Union for the Protection of New Varieties of Plants specify the conditions under which intellectual property rights can be granted, and to some extent inhibit the creation of international access and benefit sharing regimes. The FAO International Treaty on Plant Genetic Resources for Food and Agriculture provides an example of a treaty to which New Zealand is not a Member but which attempts to promote the conservation and sustainable use of plant genetic resources in keeping with the requirements of the Convention on Biological Diversity. The Treaty includes the provision for the establishment of a Multilateral System of Access and Benefit Sharing, however the effectiveness of this regime remains to be seen as the Treaty has not yet entered into force.
TABLE OF CONTENTS
Executive Summary Table of Contents 1.0 2.0 Background What is Bioprospecting? 2.1 Definition 2.2 Bioprospecting, Biotechnology and Biodiversity Research Who Conducts Bioprospecting? 3.1 The New Zealand Situation 3.2 The International Situation An Issue of Concern to New Zealand International Commitments 5.1 Introduction 5.2 The Convention on Biological Diversity 5.2.1 Introduction 5.2.2 Key Articles 5.2.3 The Working Group on Access and Benefit Sharing 5.2.4 The Working Group on Article 8(j) 5.2.5 The Cartegena Protocol on Biosafety 5.3 Convention on the Law of the Sea 5.3.1 Introduction 5.3.2 Key Articles 5.4 World Intellectual Property Organisation and World Trade Organization 5.4.1 Introduction 5.4.2 World Intellectual Property Organisation 5.4.3 World Trade Organisation 5.5 International Union for the Protection of New Varieties of Plants 5.6 Food and Agriculture Organization of the United Nations 5.6.1 Introduction 5.6.2 International Treaty on Plant Genetic Resources for Food and Agriculture Discussion and Conclusion
2 3 4 5 5 5 7 7 8 9 10 10 10 11 12 16 19 20 21 21 23 27 27 29 31 36 38 38 38 43 45
This is a position paper written as part of the Bioprospecting Review currently being undertaken by the Natural Resources Policy Group of the Ministry of Economic Development. The document aims to provide a precise definition of bioprospecting and to discuss some of the issues inherent with the management of this industry for New Zealand. The paper does not necessarily reflect the official view of the Ministry of Economic Development, but is intended to promote discussion on this issue. It complements other position papers as well as the public Bioprospecting Discussion Document1 which have been written on the subject of bioprospecting.
“Bioprospecting Discission Document” and “Discussion Document” refers to the publication Bioprospecting in New Zealand – discussing the options released by the Ministry of Economic Development, November 2002.
animals. biological resources do not include humans or human tissues. which may have commercial application. genetically modified organisms.. and viruses. or the examination of biological organisms. and viruses.. Under the Convention on Biological Diversity (1992).’ otherwise known as ‘bioprospecting. native and introduced species. and their products. 6 Endemic: only found in one country/area. Article 2. 7 Kiss. native. D. parts and products. 2000. physiological.C. Native: may occur in more than one country/area. animals..’ was first defined in 1993 as ‘the exploration of biodiversity for commercially valuable genetic resources and biochemicals. 2000. 1993. 1992. fungi. the parts and products thereof which may be of value to humans. populations. and Shelton. and organisms both within and outside areas of national sovereignty or jurisdiction. p3. For reasons of convention and ethics.2 BIOPROSPECTING. Inherent in this definition is the concept of search. microorganisms. fungi. 8 Kiss.’2 During the last ten years this definition has been revised and is generally considered to be ‘the examination of biological resources for features that may be of value for commercial development. A. This delineates bioprospecting from the related term ‘biotechnology’ which is an umbrella term for innovations which are based on the application of
Reid et al. for as yet undiscovered characteristics and applications.2.C. genetic or biochemical characteristics of plants. or exotic species. ‘biological resources’ are defined to include ‘genetic resources. Exotic: introduced by humans. 2002. organisms or parts thereof. the definitions of both bioprospecting and biological resources make no distinction between the examination of endemic.5 Significantly. or any other biotic component of ecosystems with actual or potential use or value for humanity. genetic or biochemical characteristics of potential commercial applicability which have been sourced from or produced by biological organisms. and Shelton. D. 4 CBD.8 2. microorganisms. bioprospecting equates to the search for morphological.
.’4 This equates to plants.6 common or private property resources. A.7 This therefore considers domestic and wild plants and animals.0
WHAT IS BIOPROSPECTING?
2. BIOTECHNOLOGY AND BIODIVERSITY RESEARCH
Utilizing the above definitions. MED. 5 Refer Decision 11/11(2) of the Second Conference of the Parties of the Convention on Biological Diversity.’3 These ‘features’ may include morphological.1
The term ‘biodiversity prospecting. physiological. or in situ or ex situ populations and collections. but which has not been anthropogenically introduced.
This excludes non-commercial ‘biodiversity research. Note that not all processes illustrated are conducted for every development. This has significant implications for management of this process. or through directly hiring or contracting the researcher. www.1. DEVELOPMENT & COMMERCIALISATION
FIG 2. biotechnology. and can include the identification of a substance for potential use in a new medicine. Note however that bioprospecting stops once the desired compound or characteristic has been found and the project moves towards further development and commercialization. research only becomes bioprospecting once the researcher identifies the commercial potential of the study and conducts investigations with this goal in mind. and because the results of concluded studies may be utilized by companies in subsequent bioprospecting activities.9 Biotechnology industries include genetic technology. the development of many health products. 2002.’ namely studies conducted by universities and independent research institutions. purification. bioprospecting is frequently involved in the initial stages of a biotechnology project. As emphasized by Laird and ten Kate (2002). or simply the selective breeding of a plant or animal to produce a desired characteristic.com 11 Laird and ten Kate. the isolation of a gene to be used in genetic modification.10 As illustrated in Fig 2.
. waste management and bioremediation.accessexcellence.
Bioprospecting also only includes the search for products which may be of potential commercial use. medicines and agrochemicals. and biodiversity research.
CONTINUUM OF PRODUCT DEVELOPMENT
Literature searches and/or consultation with local landowners and resource users
Initial collection of biological material
Screening. for example as much academic research is (at least partially) privately funded. initial testing
In-depth testing and development of the product
BIODIVERSITY RESEARCH = NON-COMMERCIAL BIOPROSPECTING = SEARCH STAGE DEVELOPMENT & COMMERCIALISATION
BIOTECHNOLOGY = SEARCH.biological resources or their products to the production of useful goods and services.1: The development of a commercial product in the biotechnology industry. illustrating the difference between bioprospecting. the search for a biological control agent for a pest. although academic research may involve the study of biological resources. their components and characteristics. sourced either from published journals. the identification of an enzyme or microorganism for an industrial process.
Definition adapted from MORST. as well as plant and animal breeding.11 It is noted however that this distinction is not always clear. conference proceedings. 2002.
Today. beef. The arrival of European settlement however accelerated bioprospecting. although it is unclear whether these were conscious experiments or longterm ‘trial-and-error’ procedures. as no formal research has been conducted into the scale of the industry. Initial research was devoted to improving sheep. In recent years. crown research institutes and some private companies conduct the majority of biotechnology research in New Zealand. early settlers developed rongoa (traditional medicines). and medicines. Universities. 2002. roots.1
THE NEW ZEALAND SITUATION
Currently there is very little data on the extent of bioprospecting activities in New Zealand. and dyes from a wide range of leaves. Evidence suggests however that bioprospecting of some kind has been conducted since the first settlement of New Zealand. shoots. biotechnology in New Zealand remains small. In 1999 the industry was estimated to be worth $475 million to the economy. 14 MORST. and dairy production. food research. and the fruit from native plant species. greater emphasis is being placed on the properties of native and indigenous biota. In 2002 the government released the Biotechnology Strategy and the Growth and Innovation Framework which identified biotechnology as a key area for growth. increasing interest has been paid to genetically modified organisms to increase agricultural efficiencies. as well the development and refinement of agrochemicals and commercial crops.
. health products. as a dependence on commercial agriculture prompted the need for plant and animal species bred specifically for New Zealand conditions. in addition to research on the traditionally targeted introduced species. MORST. 2002. achieved by selective breeding and artificial insemination technologies. 2002. Early Polynesian migrants conducted the first bioprospecting activities in New Zealand. with a significant proportion being performed in collaboration with international institutions and organizations.13 with a significant proportion of this likely to be the direct result of bioprospecting. but increasingly is being applied in other sectors. In addition to adapting a number of exotic food crops for New Zealand conditions such as the kumara. In the last fifteen years. with recent increasing interest associated with rapid growth of the modern biotechnology sector. In particular. biotechnology continues to play a significant role in agriculture. much bioprospecting and biotechnology has been based on maximizing agricultural production. as provided by the Merino sheep (prized for long staple wool in cold climes) and the Perendale (providing both good quality wool and meat for more northern areas). specifically for industrial processes. teas.3.0
WHO CONDUCTS BIOPROSPECTING?
3. food additives. soil and pasture development. The removal of farm subsidies in the 1980s fueled greater research and development in this area as farms agglomerated and farmers demanded greater production efficiencies. ornamental plant development.12 By international standards however.14 indicating that
and 5% from vertebrate species. Many small companies are also involved in bioprospecting and biotechnology. many key industries are dependent on bioprospecting and biotechnology for their continued growth. leading them to diversify into this area and frequently buy out smaller institutions in the process. and bulbs is dominated by ten corporations. 17 Laird and ten Kate. Infamous names from the industry include Monsanto. Bioprospecting is therefore big business. with the remainder spent on product development. 2002. 118 of these were developed from living organisms: 74% from plants. approximately 37% of the research and development budget is devoted to the “discovery” of desired compounds. cut flowers. principally in the niche health food and beauty product end of the market. 18% from fungi. 18 Laird and ten Kate. As an example. 2002. The nature of the industry necessitates large amounts of capital with returns often on the distant horizon. as well as small plant and animal breeders and ornamental horticulture operators.
Laird and ten Kate. and Merck.
.18 In addition. 2002.the industry is likely to be the focus of investment and achieve rapid expansion in the near future. In both of these industries. all US-based corporations which conduct activities all over the globe. attracting large organizations more willing to adopt and secure large repayment risk.. large multinational pharmaceutical and agricultural corporations dominate bioprospecting and biotechnology activities. pharmaceutical and herbal medicine industries are becoming increasingly blurred as multinationals recognize the growing demand for naturally derived products. the global market for pharmaceuticals is more than US$300 billion per year. highlighted by the ornamental horticulture industry where 90% of the global trade in plants. it costs approximately US$40-US$100 million for the production of a novel pesticide as one example. with expenditure by such corporations on research and development in the order of US$250-US$500 million. 1997.16 In the agrochemical industry.2 THE INTERNATIONAL SITUATION
Internationally. in-depth trials.17 Tempering these costs however is the knowledge that very few bioprospected compounds actually make it to commercial sale. The contribution of these companies however pales in comparison to the research and development undertaken by multinationals. 3. Stone et al.15 Of the top 150 prescription drugs sold in the United States. and marketing. Although an exact monetary figure for the contribution of bioprospecting to the global economy is difficult to calculate. Glaxo-Smith Cline.
and ensuring that benefits are maximized for New Zealand. comm. or legislation. and research institutes. New Zealand holds considerable potential for bioprospecting. universities. principles. bioprospecting and biotechnology play a major role in maximizing agricultural output. their products and derivatives.
. pasture and soil development.0
AN ISSUE OF CONCERN TO NEW ZEALAND
Bioprospecting is of particular significance for New Zealand.21 The development of policy or regulation to oversee bioprospecting activities must therefore balance the potential costs and benefits of this activity. pers. cost-effective alternative for overseas corporations than American. 2002.
Professor Garth Cooper. European or Asian biotechnology firms. Particular concerns include managing access to biological resources. controlling harvesting. 21 MED. fungi with medicinal properties. providing a reliable. protecting indigenous knowledge.4. and marine organisms being examined for possible medicinal or health properties. MED. and for finding new and innovative ways to use and market our agricultural goods and services.19 One of the newer areas of bioprospecting and biotechnology for this country is the examination and commercialization of endemic and native species. p2. New Zealand is at the forefront of biotechnology in the areas of the milk and milk product research. the breeding and marketing of ornamental native plants. With an abundance of unique and rare flora and fauna. unpublished. Although a precise figure cannot be placed on the extent of bioprospecting activities in this country.20 Current activities are conducted in the absence of any overarching guidelines. Indeed. with some parties concerned that such activities have the potential to undermine other environmental. social or economic policy objectives. the Ministry of Economic Development acknowledges that it is being conducted ‘by a wide range of agencies. combined with a wealth of Maori knowledge behind this biodiversity. As a nation built on primary production. Researchers are also increasingly diversifying into the area of industrial and medical biotechnology. Examples include manuka honey products.’ including both domestic and foreign biotechnology firms.
The immense support given to the agreement at Rio de Janeiro 1992 represented a global commitment to biodiversity issues. and declarations to which New Zealand is a signatory or Member can be sourced from the Ministry of Foreign Affairs and Trade. as provided by the World Intellectual Property Organization (WIPO) and the Conference of the Parties to the Convention on Biological Diversity.2. This figure includes 156 nations which have formally ratified23 meaning that they have officially pledged to adopt the principles of the treaty into national law.2 5.mfat.1
New Zealand has a number of international commitments of direct relevance to the management of bioprospecting activities. and the Millennium Development Goals. there were 187 Parties to the Convention. Examples include the Convention on Biological Diversity. Brazil. principally a need to balance resource use with conservation.nz http://www. and represents the first international commitment to the preservation of biological diversity on a global scale. A more extensive list of international organisations. Significantly.asp 24 Compare for example. and promote greater equity and understanding between nations in the burgeoning industry of biotechnology. As of March 2003.5. representing a groundbreaking 90% of the United Nations. Others are non-binding moral commitments including Agenda 21. the Rio Principles. As a Member of several international organizations and a signatory to a number of international treaties and declarations. treaties. New Zealand is a member of a number of organizations to draft voluntary guidelines and standards which aim to influence policy making.govt. ninety days following the receipt of the 30th instrument of ratification. the Convention on the Law of the Sea.22 5. New Zealand signed the document at the Summit in 1992 and ratified the following year on 16 September 1993.biodiv.0
5. the TRIPS Agreement. and the United Nations Convention on the Law of the Sea. The Convention entered into force on the 29 December 1993. the Convention for the Protection of Migratory Birds. In addition. The CBD was a landmark international treaty. A brief account of the key international commitments in relation to bioprospecting are provided in the following section. this country is obligated to implement the provisions of these documents when examining an issue or drafting new policy.24 providing states with specific
. The Antarctic Treaty.org/world/parties.1 THE CONVENTION ON BIOLOGICAL DIVERSITY Introduction
The Convention on Biological Diversity (CBD) was signed in 1992 at the World Summit on Environment and Development held in Rio de Janeiro. Many of these commitments are binding whereby New Zealand has a legal obligation to adhere to the requirements of these documents. the CBD was the first international environmental document to transcend national boundaries.
2002... Artcle 6. p34. 1995.W. in situ and ex situ collections. Associated with these principles. 11. 7. 31 CBD. such as the precautionary principle.. 2002. covering both wild and domestic biodiversity. the recognition of intrinsic values. 9. 6(b).34 It is argued that the philosophy of the Convention therefore mirrors previous fisheries and migrant animal treaties whereby the purpose of conservation is
.28 This is particularly true in environmental negotiations where states fear that environmental provisions may undermine economic growth. D. 8. 1995. rather than emphasising the intrinsic or non-use values of nature.requirements to achieve both within as well as external to their borders..’26 and that it is merely ‘an instrument of political symbolism.’27 This illustrates the difficulties of reaching consensus when drafting international law. the document promotes a more integrated. and Boyle. 29 Birnie. 2000. Although praised for its pioneering nature. and ecosystems. 27 Boyle. rather than precisely defined directives and obligations. A. disproportionately concerned with the economic values of biodiversity. The binding sections of the text are frequently concerned with promoting access to and the use of biological resources. a frequent criticism of the Biodiversity Convention is that its directives are ‘weak.. and Boyle.hasty and disjointed. A. Other provisions including making states liable for environmental damage and a list of globally protected ecosystems and species have been largely or wholly deleted from the text altogether.W. Articles 5. whereas the more ecocentric aspects of the document. and the much celebrated affirmation that ‘the conservation of biological diversity is a common concern of humankind’ have been relegated to the non-binding Preamble. A. A. Boyle.E. species. it significantly weakens the treaty and promotes inconsistent interpretation and implementation around the globe.. P. 1995.. 33 Boyle.’31 or ‘subject to…national legislation. 32 CBD..25 It also was the first treaty to address biodiversity on a broad scale. conservationist international environmental treaties of the past.E.33 A second frequent criticism of the Convention is that it is anthropocentric and utilitarian.. biological processes. the Convention emphasises the principle of sustainable use and acknowledges the role of indigenous peoples in this area. including the requirement to manage species. and Shelton. marking a departure from the habitually prohibitive.. 34 Both of these features were included in earlier drafts. Artice 8j. 30 CBD.’32 Whilst this acknowledges that some nations have greater (or lesser) ability to implement such requirements and allows maximum flexibility. and is notably so for agreements such as the CBD which are trying to address a number of somewhat conflicting objectives. ecosystems. In addition. and maintain the genetic diversity of populations. genes. ecosystem approach to biodiversity management. Related to these criticisms is the fact that the provisions of the Convention are mainly expressed as overall goals..10. 28 Birnie. A. p36. P. where competing interests and political power play frequently result in weak text which is the product of political compromise. 14.’30 ‘and ‘in accordance with [a state’s] particular conditions and capabilities.29 This is illustrated by many of the key operative articles which are qualified by statements such as to be implemented ‘as far as possible and appropriate.C..
Article 7.i) 44 CBD. Article 8(c. conservation and sustainability. Article 8(a. but do not cover activities which are conducted by national actors. plans or programmes for the conservation and sustainable use of biological diversity.2 Key Articles
The CBD has three main objectives. 1992.’38 which is mirrored in Article 10 which requires Parties to ‘integrate…the conservation and sustainable use of biological resources into national decision making.35 Irrespective of the Convention’s imperfections. 1992.
. In Article 6 the Convention requests Contracting Parties to develop ‘national strategies. 1992.d. including by appropriate access to genetic resources and by appropriate transfer of relevant technologies…and by appropriate funding. 40 CBD. The key obligations concern the principles of state sovereignty. Article 13. it undoubtedly illustrates a mammoth task to attempt to preserve the world’s biodiversity and achieve an equitable balancing act between the desires of both developed and developing states.2. 42 Ibid. including the request to establish systems of protected areas. provided in Article 1:37 1. P. Birnie. Article 10(f).e. 1992.42 and promote the conservation and sustainable use of biodiversity both within and outside of protected areas. 37 CBD. Article 14. 2002. 1992.’ it does cover a number of closely related issues involved in the bioprospecting process and which are of direct relevance to the drafting of bioprospecting policy.43 Parties are also to monitor species and ecosystems. Most obligations focus on activities whereby one Party is acquiring genetic material from another. A.W. Article 10(a).46 Although the Convention does not specifically refer to the activity of ‘bioprospecting. 3. 46 CBD.41 rehabilitate degraded ecosystems. 2. 43 CBD. Article1. 1992. and Boyle. 39 CBD. A. emphasis added.b) 41 CBD.40 promote the recovery of threatened species. Article 6(a).
These objectives are followed by 41 subsequent Articles which outline how they are to be implemented. and the protection of indigenous knowledge. on moral or ethical grounds irrespective of use values to humanity.to facilitate sustainable human use rather than to achieve biodiversity conservation for its own sake. The conservation of biological diversity The sustainable use of its components The fair and equitable sharing of the benefits arising out of the utilisation of genetic resources..E..44 introduce environmental impact assessment procedures. 1992.’39 Emphasis is placed on in-situ conservation.36 5. This illustrates how the
Boyle.. 45 CBD. 1992. 1992. access to genetic resources and benefit sharing.45 and promote public awareness of biodiversity. conservation and sustainable use. 38 CBD. 1995.
The CBD therefore marks a definitive point transferring the management of biological resources to individual states.’ This affirms that a state is free to conduct activities within its borders as long as they do not adversely affect activities of neighbouring states or common areas. Boyle. A much emphasised section of the CBD of relevance to bioprospecting can be found in Articles 15 (Access to Genetic Resources) to 19 (Handling of Biotechnology and
The principle of state sovereignty is found in the Charter of the United Nations and is a guiding principle of international law. 52 An examination of global fish stocks provides clear evidence of the failure of sustainable management regimes for biodiversity. A. 51 CBD.
.’49 including the authority to determine access and benefit sharing regimes in line with the objectives of the Convention. a number of Articles emphasise the importance of scientific research to help achieve these objectives. Article 15(a). ‘sustainable use’ is defined as ‘the use of components of biological diversity in a way or at a rate that does not lead to the long-term decline of biological diversity. and ‘sustainability’ remains a somewhat hypothetical term which has had limited success for the management of biodiversity.W.. Although ‘conservation’ is left undefined.E.. Irrespective of precise definitions. thereby maintaining its potential to meet the needs of present and future generations. may aid in the achievement of the principles of the Convention. and mirrors other treaties whereby property rights have been established over previously common resources in order to improve management. 2002.52 In general however. conservation is frequently prohibitive. whilst the newer principle of sustainability is more facilitative which permits use of resources at a level consistent with the carrying capacity of the environment.’51 It can be argued that neither term has an accepted working definition. 1992. and Boyle. 49 CBD. A.Convention is primarily concerned with managing activities between countries. 1995.50 Two of the three overarching aims of the CBD are the conservation and sustainable use of global biodiversity. 48 Birnie. Of particular note for bioprospecting management. Article 3 of the CBD asserts the principle47 that ‘States have…the sovereign right to exploit their own resources pursuant to their own environmental policies’ and a ‘responsibility to ensure that activities…do not cause damage to the environment of other states or to areas beyond the limits of national jurisdiction. ‘conservation’ has evolved from exclusion to inclusion.48 Article 15 then follows by ‘recognising the sovereign rights of States over their natural resources. Article 11(b) requests that Parties ‘promote and encourage research which contributes to the conservation and sustainable use of biological diversity. namely balancing access to biodiverse developing countries by biodiversity poor but technologically advanced developed countries. including bioprospecting activities. 50 Principally transboundary fish stock and migrating animal treaties. however through signing the Convention a nation is committing itself to implement the obligations set out in the text.. This statement is significant as it effectively removes biological resources from the commons where they had been placed in the past which had facilitated the free collection and exchange of biological material worldwide.’ It is acknowledged that properly managed scientific research. 1992. from species to ecosystem to process management. P. Article 2.
1992. Articles 1 and 20. 1992. animal. with particular emphasis placed on the needs of developing countries. 57 CBD. 1992. ‘Genetic resources’ are defined as ‘any material of plant. where granted.2. 58 CBD.Distribution of its Benefits). Although the specific method for achieving improved access and benefit sharing from the utilisation of genetic resources is left unqualified. or cell components which do not contain DNA or RNA. biochemicals or other biological products. 2002 (refer section 5. and where possible in’ the country of origin of such resources.58 Of particular importance.57 and the provision of funding. Preambular paragraph 12 and the much
CBD. CBD. 56 CBD.
. Article 18. Article 17. 1992.56 scientific cooperation. scientific research arising from genetic resources is requested to be undertaken ‘with the full participation of. Such sharing shall be on mutually agreed terms. and do not cover introduced species (unless acquired under the provisions of the Convention). and is the subject of the Bonn Guidelines adopted at the 4th Conference of the Parties held in Geneva.55 information exchange. Article 15 specifies the parameters for access to genetic resources: 15(2): ‘Each Contracting Party shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses…’ 15(4): ‘Access. Article 2. 55 CBD. administrative or policy measures as appropriate…with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilisation of genetic resources with the Contracting Party providing such resources. Another significant feature of the CBD is the recognition of indigenous knowledge. Article 15(6). 1992. microbial or other origin containing functional units of heredity…of actual or potential value’53 but for sections 15 to 19 are specified as ‘only those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention. These sections request that Parties are to facilitate access to genetic resources in return for a share in the benefits arising from the utilisation of these resources. including the role than indigenous communities can play in the conservation and sustainable utilisation of biological resources. Article 15(3). Articles 1 and 16. 1992. 1992. a number of Articles request for the transfer of technology between Parties.59 Access and benefit sharing has proved a contentious issue for Contracting Parties.’54 This means that access and benefit sharing regimes developed under the CBD apply principally to native or endemic species.3). 59 CBD. shall be on mutually agreed terms…’ and 15(5): ‘Access shall be subject to prior informed consent of the Contracting Party providing such resources…’ These requirements are complemented with requirements for benefit sharing: 15(7): ‘Each Contracting Party shall take legislative.
innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge. In response to this the Conference of the Parties has established an ad hoc Working Group on Article 8(j)61 (refer section 5. involvement of and benefit sharing to indigenous peoples.’60 This ambitious Article however is significantly weakened by statements that it is to be implemented ‘as far as possible and as appropriate’ and ‘subject to [a Party’s] national legislation. COP Decision IV/9. Article 17 somewhat contradicts this by promoting the widespread dissemination of publicly available traditional knowledge.
CBD. preserve and maintain knowledge. Article 8(j). meaning that this exchange of information must be accompanied by the approval and involvement of traditional knowledge holders. Under Article 8(j) the CBD requests that Parties: ‘…respect. innovations and practices. It is noted however that Article 17 must be interpreted together with other sections of the Convention.2.celebrated Article 8(j) are frequently quoted as the key directives requiring prior informed consent. 1992.4). emphasis added. and as such it has caused much debate among Contracting Parties.’ Whilst Article 10 complements the goals of Article 8(j) – namely the respect and preservation of traditional knowledge. innovations and practices and encourage the equitable sharing of benefits arising from the utilisation of such knowledge.’ The text also provides no definitions or a framework for how this Article is to be interpreted or implemented. The provisions of Article 8(j) are accompanied by Article 10(c) which requests that Parties ‘protect and encourage [the] customary use of biological resources in accordance with traditional cultural practices’ and Article 17 which aims to ‘facilitate the exchange of information [between Parties] from all publicly available sources’ including ‘indigenous and traditional knowledge.
They are acknowledged as ‘a useful first step of an evolutionary process of implementation of
COP Decision IV/8 paragraph 3. The Panel convened in 1999 and 2000 and reached broad consensus on the issues of prior informed consent.64 The Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits Arising from their Utilization (the Bonn Guidelines) represent the first time that Contracting Parties to the CBD have collectively negotiated terms for the implementation of Article 15 and related sections. non-governmental organizations. as well as intergovernmental organisations. COP Decision V/26A paragraph 11. Kenya. mutually agreed terms.2. implemented on an ad hoc and unilateral basis. and codes of conduct of best practices for access and benefit-sharing arrangements. Prior to this point access and benefit sharing regimes had been very limited. Technical and Technological Advice (SBSTTA) which is a subsidiary of the COP and focuses on improving biodiversity assessments and monitoring. industry and scientific and academic institutions.3
The Working Group on Access and Benefit Sharing
The CBD Working Group on Access and Benefit Sharing is one of four Convention bodies established to aid in the implementation of the treaty by Member States. 64 COP Decision VI/24. At the fourth COP held in the Slovak Republic May 1998. guidelines.63 The Group convened from 22-26 October 2001 and developed the Draft Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits Arising from their Utilization (the Bonn Guidelines) which were adopted by Member States at COP VI in April 2002. and as a result of these discussions agreed to establish ‘a regionally balanced panel of experts’ in order to ‘develop…a common understanding of basic concepts [of access and benefit sharing] and to explore all options for access and benefit-sharing on mutually agreed terms including principles. as well as representatives of indigenous and local communities. administrative or policy measures for facilitating access and benefit sharing. the Subsidiary Body on Scientific.4. The Group consisted of representatives nominated by Governments and regional economic integration organizations.
. Member States addressed the matter for the first time as a separate agenda item. information needs and capacity building. and was open to the participation of indigenous and local communities. The mandate of the Group was to develop guidelines and other approaches in order to facilitate access and benefit sharing between Parties and to submit the results of this analysis to the sixth COP. The Guidelines aim to provide a voluntary set of standards and procedures designed to aid Contracting Parties in the development of legislative. as well as the Working Group on Article 8(j) discussed in section 5.’62 Members of the Panel were to be appointed by Governments and composed of representatives from the private and public sectors.2. Issues concerning access to genetic resources and benefit sharing have arisen in COP negotiations from 1995.5. Member States agreed to supplement the work of the Panel of Experts and established an Ad Hoc Open-ended Working Group on Access and Benefit Sharing. The other organizations are the Conference of the Parties (COP) which is the governing body and main decision-making agency of the Convention. In May 2000 at the 5th COP held in Nairobi.
and may be part of a national biodiversity strategy and action plan and promote the equitable sharing of benefits. and advises that such systems may be developed as part of a wider national biodiversity strategy required under Article 6 of the CBD: ‘Access and benefit sharing systems should be based on an overall access and benefit sharing strategy at the country or regional level.70 The Guidelines therefore cover activities such as bioprospecting. Articles 24 to 40 specify the procedures which may be taken by a Contracting Party in order to develop a ‘prior informed consent system. however they can provide proactive countries with a legitimate starting point from which to develop appropriate legislation. monitoring and enforcing access and benefit sharing agreements and contracts. and other uses. 71 Bonn Guidelines Article 16(b)(v). They also request that access and benefit sharing conditions be honoured if and when the material is transferred to third parties. This access and benefit sharing strategy should aim at the conservation and sustainable use of biological diversity. that no undue restrictions to access
COP Decision VI/24. biodiversity research.
. and provide advice on a range of issues including the conservation and sustainable use of genetic resources.67 Consequently many of the provisions are weak and imprecise.68 It also outlines the role of ‘competent national authority(ies). It emphasizes the need for prior informed consent and mutually agreed terms for benefit sharing.’ The Guidelines request that countries facilitate access to genetic resources at minimum cost. in addition to processing. commercialization. 68 Bonn Guidelines Article 13.relevant provisions of the Convention’65 meaning that they are a work in progress and there is provision for further strengthening and/or amendments of the document in the future. The Bonn Guidelines establish a number of ‘roles and responsibilities’66 for Contracting Parties. 69 Bonn Guidelines Article 22 (emphasis added). including benefit sharing. promoting the effective participation of stakeholders including indigenous peoples. Bonn Guidelines Section II. and ask that ‘new prior informed consent and mutually agreed terms’71 be negotiated should the resource be used for any other purposes than initially negotiated. 67 ‘Provider’ and ‘user’ countries are those which are ‘providing’ or ‘using’ genetic resources in accordance with the Convention. however they are designed to be simple and flexible to suit a range of situations and to gain widespread adoption by both provider and user countries.’69 Access and benefit sharing systems may apply to all activities related to the use of genetic resources including activities prior to access (such as literature searches and consultation). research and development of a product. 70 Bonn Guidelines Article 23.’ which may be established to grant access to genetic resources. The Guidelines request that countries designate a ‘national focus point for access and benefit sharing’ to coordinate and disseminate information on access and benefit sharing to intending applicants. Section IV of the Bonn Guidelines then describes the steps to be taken in developing access and benefit sharing regimes. that there is legal certainty over the process and provisions required. as well as other downstream biotechnology activities.
non-governmental organisations. such as indigenous and local communities. national registration systems. access to scientific information). following a change of use or involvement of a third party). collaboration and cooperation in scientific research.
Requests for prior informed consent are also linked to the requirement of ‘mutually agreed terms’ for access to genetic resources and benefit sharing. Benefits are requested to be ‘shared fairly and equitably with all those who have been identified as having contributed to the resource management.’ and may include government institutions. technology transfers.74 Further negotiation relating to access and benefit sharing is likely to continue in the COP. whether the terms of the agreement can be renegotiated (eg. with a model Agreement included in the Appendix of the document. duration of activity. documented permits or licences. It is also requested that such benefit sharing be conducted in line with the objectives of the CBD to promote the conservation and sustainable use of biological diversity. Contracting Parties have requested that the Working Group on Access and Benefit Sharing report to COP VII in 2004. the type.’72 Although a specific framework is left undefined. including timeframes for application and processing procedures Specification of use for the resources requested Procedures for obtaining prior informed consent eg. and arrangements for benefit sharing. licence fees. access fees. limitations on the possible use of the material. the Guidelines acknowledge that they may include both monetary (eg. eg. as well as indigenous and local communities. Bonn Guidelines Article 48. preservation of the knowledge and cultural practices of indigenous peoples. as appropriate to the circumstances and subject to domestic law. intended use.73 Although a specific mechanism for how these benefits are to be distributed is not specified. 74 The Bonn Guidelines build on the CBD and actually define specify examples of monetary and nonmonetary benefits. academic institutions. scientific and/or commercial process. and that applicants obtain the ‘consent of the relevant competent national authority(ies)…[and] relevant stakeholders. Mutually agreed terms may include agreement between Parties over the type. institutional capacity building. royalties. environmental impact procedures. quantity and location of genetic material to be accessed.are enforced. quantity and location of the genetic resource requested.
Bonn Guidelines Article 26(d). Article 42 suggests the development of ‘standardized material transfer arrangements’ covering such parameters. research funding) or non-monetary benefits (eg. prior informed consent systems may include:
a) b) c) d) e)
Competent national authority(ies) granting or providing for evidence of prior informed consent Timing and deadlines.
. milestone payments. Mechanism for consultation of relevant stakeholders Details of the process required. treatment of confidential information.
Although not specifically addressing issues related to bioprospecting.
.77 The purpose of the Working Group on Article 8(j) is to act as an advisory body to the COP on issues of concern related to traditional knowledge. and facilitating access to biological resources and benefit sharing. concerns regarding the promotion and protection of traditional knowledge arose frequently in COP discussions from 1992. improve involvement and consultation of indigenous and local communities. non-governmental organizations as well as members of indigenous and local communities. specifically ways to protect indigenous knowledge. 78 COP Decision IV/9 and V/16. the possibility of developing a workplan on Article 8(j) and related sections.75 At COP 3. 77 COP Decision IV/9. innovations and practices of indigenous and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity. Spain. and the need to establish an open-ended inter-sessional working group or subsidiary body to address the role of traditional knowledge. as well as strengthening cooperation between indigenous and local communities at the international level. inter alia.2. traditional knowledge was identified as an issue of importance.5.76 The Workshop on Traditional Knowledge and Biological Diversity was held in Madrid. encouraging synergy between international institutions dealing with traditional knowledge and associated issues. innovations and practices.
COP Decision I/9. COP Decision III/14. innovations and practices of indigenous and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity. identifying objectives and priorities for discussion in the COP. March 2000 and February 2002.4
The Working Group on Article 8(j)
In parallel with issues surrounding access to biological resources and benefit sharing. on 24-28 November 1997 and a report drafted for COP 4. the Group does delve into a number of related areas. The Group is open to participation by government representatives. At COP 1. The Group advises on a wide range of issues with particular emphasis on applying and developing methods for the protection of indigenous knowledge. The Working Group on Article 8(j) has convened on two occasions. developing and maintaining a work programme for the implementation of Article 8(j) and related provisions. At COP 4 the outcomes of the Workshop were complemented by the establishment of an Ad Hoc Open-Ended Inter-Sessional Working Group on the implementation of Article 8(j) and related provisions (the Working Group on Article 8(j)).78 The Group aims to complement but not compete with the activities of other organisations working in this area. to be addressed at COP 3 as part of the first medium-term work program. Contracting Parties agreed to convene a five day Workshop to consider a number of issues surrounding traditional knowledge including. and concentrates solely on issues related to the conservation and sustainable use of resources and access and benefit sharing.
the Protocol is grounded in the precautionary principle whereby a lack of scientific certainty over the potential adverse effects of an organism should not prevent a state from taking a decision in order to minimise such potential adverse effects. The Protocol principally governs activities of trade and movement of modified organisms between Parties which is primarily a downstream activity following bioprospecting research and development.’ The Protocol defines precise rules and regulations for the transboundary transfer of modified organisms between CBD Parties and to non-Parties. approved.5
The Cartegena Protocol on Biosafety
The Cartagena Protocol on Biosafety was adopted at the first extraordinary meeting of the Conference of the Parties to the CBD on 29 January 2000.2. The Cartegena Protocol is not of high significance for the management of bioprospecting in New Zealand. Significantly. in addition to establishing requirements for risk assessment prior to the initial release of an organism in the country of origin.
Cartegena Protocol. The Protocol also establishes a Biosafety Clearing-House to facilitate the exchange of information on living modified organisms and to assist countries in the implementation of the Protocol.5. approval or accession by Parties to the CBD.
. including New Zealand. accepted.79 The Cartegena Protocol reflects growing concerns regarding the effects of genetically modified organisms on existing biodiversity and human health. acceptance. The Protocol will enter into force and become legally binding on the ninetieth day following the deposit of the fiftieth instrument of ratification. Article 37. The Protocol is a supplementary agreement to the CBD and as of April 2003 has been signed by over 100 nations. handling and use of any living modified organism resulting from biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity. or acceded to by 46 nations. and ratified. It follows requests in Article 19(3) of the CBD for Parties to ‘consider the need for and modalities of a protocol setting out appropriate procedures…in the field of the safe transfer.
the Convention on the Continental Shelf. and the Convention on Fishing and Conservation of Living Resources of the High Seas. the Convention on the High Seas. and after some negotiation resulted in the adoption of four conventions: the Convention on the Territorial Sea and the Contiguous Zone.3 5. Initial attempts to improve the management of the oceans came in the form of numerous bilateral and multilateral treaties drafted on an ad hoc basis to manage specific maritime activities.
. Prior to the twentieth century.’81 The majority of the ocean. 2003.82 Initially this regime was sufficient given the limited technology of states to exploit the marine environment. combined with inconsistent application and a lack of enforcement mechanisms meant that they often did little to prevent business as usual. forming the basis of the first United Nations Conference on the Law of the Sea (UNCLOS I) held in Geneva 1958. including the law of the sea.’ collating and codifying existing customary and treaty law. widespread degradation of fish stocks combined with increasing risks of maritime pollution and growing tensions between states over access to the marine environment made a new regime for oceans management a necessity.5. UNCLOS I was attended by eighty-eight states. When the League of Nations was replaced by the United Nations in 1945 the International Law Commission was established and charged with the task of codifying international law. and enacting new rules for the management of activities such as fishing and mineral extraction. 82 UN. whereby all states had the right to sail on and utilize resources in the oceans.3. these are known as the Geneva Conventions on the Law of the Sea. with state sovereignty solely limited to a narrow band of coastal water surrounding coastal states known as the ‘territorial sea. Three reports were prepared and a Codification Conference was convened at The Hague in 1930. In 1956 the Commission produced a detailed report on the law of the sea which included an array of draft articles for consideration by states. however by the early 20th century. unmanaged and with free access to all. extending state jurisdiction over the marine environment to the width of the continental shelf. Joyner. The document establishes ‘a new order for the ocean. formal confirmations. Collectively. the oceans had been subject to the ‘freedom of the high seas’ doctrine.1
COVENTION ON THE LAW OF THE SEA Introduction
The United Nations Convention on the Law of the Sea (1982) is the key international treaty governing the activities of states in the marine environment. The first three agreements were widely ratified
Ratifications. As of April 2003 the Convention has 157 signatories and has been ratified or formally approved by 142 states80 including New Zealand. its resources. accessions and successions. 2000. and the resources of the sea floor were considered a commons. however disagreement over states’ rights to the territorial sea meant that consensus could not be reached and no binding agreement was concluded. In 1924 the League of Nations initiated the fist intergovernmental effort to codify the law of the sea and established a Committee of Experts and a Preparatory Commission to consider a number of issues of concern. Frequently however the limited scope of these agreements.
Initial ratification was slow. UNCLOS I was unable to resolve the issue of the width of the territorial sea and associated fishing limits.83 In parallel with the Codification Conference of 1930. The first session of the third United Nations Conference on the Law of the Sea (UNCLOS III) was held in New York in 1973. one year following the sixtieth instrument of ratification or accession. 1994.85 The final text of the Convention on the Law of the Sea was adopted on 30 April 1982 and opened for signature on 10 December 1982 at Montego Bay. 85 Brown. A. The fourth convention on fishing and conservation and an associated optional protocol on dispute settlement attracted less ratification as many states were unwilling to bind themselves to rules more stringent than existing customary or treaty law.R. Jamaica. however this too failed.
. whilst others had established large territorial seas and fishing zones as a result of the somewhat inadequate provisions of the Geneva Conventions. Parties have subsequently adopted two additional Agreements to the Convention concerning deepsea mining and migratory fish stocks.and represent a major achievement in codifying and clarifying pre-existing maritime customary and treaty law. He called for “an effective international regime over the sea bed and the ocean floor…to avoid the escalating tension that will be inevitable if the present regime is allowed to continue. but the document finally entered into force on 16 November 1994. A subsequent conference UNCLOS II was convened in 1960 to discuss these issues. the General Assembly adopted Resolution 2570 which requested the convening of a global Conference to draft a comprehensive international convention governing all aspects of the law of the sea.D.V.86
Churchill R. The fourth and final evolution of modern international maritime law began in 1967 when the Maltese Ambassador to the United Nations alerted states to the growing deterioration of ocean resources and rising tension over the use of maritime space beyond the territorial sea and continental shelf.V... A. E. evolving the following year to the 41 member Committee on the Peaceful Uses of the Deep Seabed and the Ocean Floor beyond the Limits of National Jurisdiction (the Seabed Committee). In 1970 following results of the Committee’s work and growing concern over a number of issues which were absent or inadequately addressed in the Geneva Conventions. and was followed by nine years of intense negotiation involving representatives from 157 states. and Lowe. 1999.” Many states had unilaterally claimed sovereignty over the resources on the continental shelf. 86 Principles for deep-sea mining were established by the 1994 Implementing Agreement of UNCLOS XI. utilise and lay claim to these resources. It remained for UNCLOS III for contention over the territorial sea to be settled. and Lowe. and migratory fisheries under the 1995 Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the Fish Stocks Agreement). Churchill R. 1999.. which were negotiated in 1994 and 1995 respectively. Other states were beginning to explore the resources of the ocean floor.84 In 1967 the General Assembly established an ad hoc Committee to address these issues. alarming a number of states who were wary that this would result in a ‘land-grab’ on the deep seabed benefiting solely the more technologically advanced developed states who were in a better capacity to explore.R.
territorial sea. and exploit any resource.1.87 each with specified jurisdiction for both coastal states and foreign states wishing to use the resources in the area. The Convention established nine maritime zones. develop. States are permitted full sovereignty over ‘internal waters’ (landward of the coast) and the ‘territorial sea’ (the sea and seabed to 12 nautical miles offshore). The provisions of the Convention are numerous. territorial sea. illegal immigrants and customs or tax evaders. namely the freedoms of navigation. and the provisions for scientific research. transfer of technology. suspected drug smugglers. and high seas). contiguous zone. The nine zones under UNCLOS are: internal waters. regulate any use. UNCLOS III and the LOSC addressed a number of new areas of concern resulting from rapid technological advances and the ability of humankind to exploit larger and larger areas of the ocean. high seas. conduct of marine scientific research. manage and conserve all resources in this area. provided that such passage does not harm the coastal state and does not violate or threaten its security.5. exclusive economic zone (some states refer to this as an exclusive fishing zone). and can include the pursuit. and/or detainment of criminals. conservation of marine resources. and laying of submarine cables. settlement of disputes. which were highly variable from state to state due to a lack of comprehensive guidelines for consistency.2
The United Nations Convention on the Law of the Sea (LOSC) (1982) has an incredibly broad scope and covers nearly all anthropogenic maritime activities in a succession of 320 articles and nine technical annexes.
Prior to the LOSC. marine scientific research and protection and preservation of the marine environment in this area. meaning that they can travel through another states’ coastal waters. In this zone a coastal state has the right to prevent and punish the infringement of its laws. and the utilisation of the seabed beyond the continental shelf. a coastal state has the sovereign right to exploit. Significantly. pursuant to the provisions of the Convention. The area of ocean and ocean floor from the edge of the territorial sea to 200 nautical miles offshore is known as the ‘exclusive economic zone’ (EEZ). and the Area. archipelagic waters. continental shelf. whilst UNCLOS I and II had largely codified existing maritime law. the oceans were delineated into four jurisdictional zones (internal waters. The ‘contiguous zone’ is the area of ocean from 12 nautical miles to 24 nautical miles offshore. A state also has jurisdiction over the construction of artificial islands.
.3. Here. The key provisions of relevance to bioprospecting include the various maritime boundaries. arrest. A brief review of the nine zones are outlined below and illustrated in Figure 5. These Articles took significant negotiation as they effectively usurped the existing freedom of the seas doctrine by removing much of the ocean from the commons and placing it under state jurisdiction. contiguous zone. overflight. setting precise boundaries and limits on issues such as the occupation and use of ocean space. One of the most significant achievements of the LOSC was the standardization of ocean boundaries and establishment of the limits to state jurisdiction which had proved so contentious in previous UNCLOS meetings and had resulted in a plethora of claims and disputes over various parts of the ocean prior to 1982. however in the territorial sea foreign vessels are permitted the right of free passage. This zone is subject to the rights of other states. Within these zones a state can enforce any law.
The ‘high seas’ and the ‘Area’ of deep seabed are outside state jurisdiction. The deep seabed beyond the limits of the continental shelf is termed the Area and is deemed to be ‘the common heritage of humankind. freedom of fishing.
LOSC. Where the continental margin does not extend beyond 200 nautical miles the continental shelf ends at the edge of the EEZ. The Convention specifically encourages the conduct of mineral extraction and marine scientific research in the Area. The high sea is the zone of ocean beyond 200 nautical miles from shore. All states are entitled to lay submarine cables and pipelines in this zone.’88 All activities conducted in this zone must be carried out for the benefit of humankind as a whole. freedom of overflight. The freedom of fishing provision is subject to states having the duty to implement measures to ensure the conservation of living marine resources. and freedom of marine scientific research.1: Maritime zones established under the Convention on the Law of the Sea (1982). and benefits which may accrue from seabed activities are to be distributed equitably among all states. and is predominantly subject to the freedom of the seas doctrine. In this zone a state has the sovereign right to exploit minerals and sessile biological resources on the seabed and subsoil. freedom to lay submarine cables and pipelines. All states are permitted freedom of navigation.
EXCLUSIVE ECONOMIC ZONE (12nm – 200nm) INTERNAL WATERS TERRITORIAL SEA (0nm . and the jurisdiction to construct.The ‘continental shelf’ is defined as the seabed and subsoil of the submarine areas which extend from the edge of the territorial sea to the end of the continental margin (with the seaward limit as defined in LOSC Part VI). Article 136.24nm) 12nm 24nm 200nm
CONTINENTAL SHELF (12nm – end of shelf or to 200nm whichever greater)
MARITIME ZONES WITHIN THE LIMITS OF NATIONAL JURISDICTION
FIG 5. and regulate the use of artificial structures and drilling.12nm) 0nm CONTIGUOUS ZONE (12nm .
’89 The Convention requests that states ‘promote and facilitate the conduct of marine scientific research’90 in all areas of the ocean. results. Article 252. methodology to be used.In accordance with the Convention. with research by another state to be carried out ‘only with the express consent of and under conditions set forth by the coastal state. and reports. including the nature and objectives of the research.’91 Within the EEZ and on the continental shelf a coastal state has the jurisdiction to regulate and control bioprospecting. Whilst no specific obligations are included for the High Seas. 94 LOSC. Article 244(1). 91 LOSC. States are requested to ‘make available by publication and dissemination through appropriate channels information on proposed major programmes and their objectives as well as knowledge resulting from marine scientific research. The specific obligations of states in this regard are outlined in Part XIII entitled Marine Scientific Research (MSR). 93 LOSC. 98 LOSC. Article 246(2).’98 The subsequent paragraph then
LOSC. Article 143.94 The coastal state is requested to consider this application and respond within four months of receipt. 95 LOSC. the LOSC places some emphasis on the need for benefit sharing in the conduct of MSR. 96 LOSC.’97 to be monitored and managed by means of the International Seabed Authority. but this must be done in accordance with the provisions of the Convention and must not unduly delay or deny the MSR activities of other states. otherwise ‘implied consent’ is considered to have been granted.96 If the conditions of this consent are not adhered to. 97 LOSC.95 On approval of an application a coastal state may require certain conditions to be met such as access to research data. Article 238. All states are permitted to conduct MSR on the waters of the High Seas and the Area outside state jurisdiction pursuant to the provisions of the Convention. A coastal state has full sovereignty to control and regulate bioprospecting within its internal and territorial waters. MSR in the Area is requested to ‘be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole. Article 244. as well as the participation in or observation of the research activities. New Zealand has the jurisdiction to manage bioprospecting activities in the water column to 200 nautical miles offshore. 92 LOSC. Article 239. LOSC. Article 246. the coastal state may suspend MSR activities. The first Article of Part XIII asserts that ‘all states…have the right to conduct marine scientific research subject to the rights and duties of other states as provided for in this Convention. In parallel with the Convention on Biological Diversity. with emphasis placed on research for peaceful purposes and the need for cooperation between states. and on the seabed and subsoil to the edge of the continental shelf.92 States wishing to conduct MSR must receive the ‘consent’93 of the coastal state concerned and are required to provide full details of a project at least six months before research is due to begin. the specific location and full duration of the work. Article 249.
. Article 248.
.elaborates by requesting that states cooperate to ‘promote the flow of scientific data and information and the transfer of knowledge resulting from marine scientific research’ in addition to ‘strengthening…marine scientific research capabilities’ with particular emphasis on the needs of developing states. Part XIII also requests that MSR complies with requirements for the protection and preservation of the marine environment. In addition. suppliers and recipients of marine technology. Article 251. however the provisions of this article have not been elaborated upon.’ The text of the Convention provides little clarification on how either knowledge or technology transfer is to be achieved or practically implemented by states. the rights and duties of holders.’ 101 LOSC. inter alia.100 This includes obligations to prevent the overharvesting of species and to minimise marine pollution. The first Article of Part XII asserts that ‘states have the obligation to protect and preserve the marine environment.99 Part XIV of the Convention then requests that states ‘cooperate…to promote actively the development and transfer of marine technology on fair and reasonable terms and conditions.’ This second provision is weakened by states permitted to implement it ‘in accordance with their capabilities’ and whilst ‘hav[ing] due regard for all legitimate interests including.’ including the need to ‘promote the acquisition. Article 244(1).
LOSC. evaluation and dissemination of marine technological knowledge and facilitate access to such information and data.’101 This infers the establishment of environmental impact assessments. states are requested to promote the establishment of ‘general criteria and guidelines to assist states in ascertaining the nature and implications of marine scientific research.
trademarks and related service marks.103 The associated term intellectual property rights (IPRs) refers to the rights of a creator or more specifically the right-holder over this intellectual property.. names and images used in commerce. F. 1995. 2002. industrial designs. research and investment by guaranteeing a limited or unlimited monopoly over an IP product as an economic reward for the time and effort spent in development. WIPO Convention. 104 Walden. Formed in 1970 and 1995 respectively. and providing a stable environment for the national and international marketing and trade in products. although the mandate of the WTO is wider and includes the management of all aspects of international trade. Note: The use of the term ‘intellectual property’ is frequently used to infer the rights behind this intellectual property (ie. 1997.. 106 Abbot. industrial property rights and copyrights. See: Cornish.104 IPRs protect the application of ideas and information or the expression of an identity that is capable of being ascribed to a person. 107 WIPO.106 The rationale behind IPRs is that they promote creativity. They also serve to protect consumers from counterfeit products thus improving the quality of goods and services available. and generally permits the right-holder to a temporary or permanent monopoly over the use and economic exploitation of the material concerned.4 5. 108 WIPO. F.4. 1999.1
WORLD ITELLECTUAL PROPERTY ORGANISATION AND WORLD TRADE ORGANIZATION Introduction
The World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO) are the two key institutions governing global intellectual property and intellectual property rights. pirates and in some cases third parties who have independently reached the same ideas. intellectual property rights) and is frequently used interchangeably.. IPRs are primarily prohibitive.105 They are also distinct from private property rights which are granted to the purchaser upon public sale or ownership of a physical good. WIPO. 1999. Article 2(viii). 1999 lists seven major forms of IPR: patents and related industrial design rights. et al. 109 Abbot. imitators.. literary and artistic works.102 the creativity and inventiveness expressed in inventions. scientific discoveries. from exploiting them without license from the right-holder. nor to ideas or ‘inventions’ which are public knowledge and therefore do not exhibit novelty. in that they aim to prevent counterfeiters. integrated circuit
.5.. copyrights and related neighbouring rights. IPRs cannot be granted over ideas or knowledge per se which have no clearly defined use or application. and confers legally enforceable rights to the person who holds this IPR. as well as symbols. et al. the role of both organizations is to harmonize the conduct of intellectual property activities worldwide. 105 Cornish. WIPO. 1997. Intellectual property (IP) refers to a defined set of intangible products which are the result of human intellectual activity.109 Industrial property
Abbot.108 however as the field of IP protection expands some authors prefer to delineate these two groups into numerous separate categories. 1997. F. 1999.107 IPRs traditionally fall under two categories. 1999.. et al. whereas IPRs principally protect the intangible ideas and creativity which have been invested in the development and production of a good.
. WIPO. ten or fifteen years. 116 Abbot. predominantly for a period of twenty years. They can be granted indefinitely111 offering long-term product differentiation. et al. Geographical indications of origin are trademarks which portray the country of origin of the product or service. 1997. Trademarks include brand names.5). a copyright does not preclude ‘independent creation’ whereby other people can produce an identical or similar work by independent means and not breach the copyright. for example on certified organic products or rated accommodation. music. F. 113 WIPO.117 The duration of a copyright can be substantial. et al. 1999 lists four categories. even if the product itself is no longer patented. plant variety rights. geographical indications of origin. 1999. (ii) useful (capable of industrial application). F. 118 Frequently an additional fifty to seventy years following the author’s death. Industrial designs are another type of industrial property right and cover the outward appearance of a particular product. 115 Abbot.118
layout rights. logos and associated symbols.116 The copyright-holder is permitted to prevent unauthorized copying. 112 For example the product the Big MacTM – a hamburger – is not patented.110 Patents permit the holder to the monopoly right to produce. and undisclosed information (also known as trade secrets). Unlike patents. films. geographical indications of origin. It would not be breach of copyright if another person took a photo of the same scene and used it in an advertisement. 1999. 1999. 114 The term ‘author’s rights’ is used in most European languages other than English to describe copyright. Copyright and associated rights cover the rights of artists over the use and dissemination of their work. and the staging or creation of distorted reproductions of the work.. clothing designs. but only McDonaldsTM can sell Big MacsTM . and even computer software. trademarks. photographs. theatrical productions. poems. and may stand for the duration of the author’s life plus numerous subsequent decades. use and market an invention. industrial designs.rights cover inventions and commercial symbols used in advertising by way of patents. Patents are granted to the inventor of a product which is (i) new.115 Copyrights cover numerous products including books. in addition to repressing unfair competition. paintings. Many restaurants sell hamburgers.112 Plant variety rights grant the developer of a new plant variety the exclusive right to produce for sale and to sell reproductive material of the variety concerned (refer section 5. 1997.. Industrial designs are usually protected against unauthorized copying or imitation. in return for the public disclosure of the means for replicating or practicing the invention.. Cornish..
. in addition to service marks for the delineation of particular goods or services. although third parties are permitted ‘fair use’ of the work.. F. et al. 110 Abbot.113 Copyrights or ‘author’s rights’114 are granted to authors and artists in order to protect their work from unauthorized copying or reproduction. 111 Although subject to periodic renewal. plant variety rights. Trademarks and geographical indications of origin are representative signs or symbols used on or associated with a good or service. and are frequently utilized in the commercialization of scientific research. for example sections of a book may be copied for instructional purposes. 117 For example breach of copyright would be using a copyrighted photo in an advertisement without an artists’ consent. and last five. and (iii) involves an inventive step (is non-obvious). This illustrates how trademarks can help to differentiate similar products in a competitive market. to aid in product differentiation and marketing.
Three years later the Paris Convention was complemented by the Berne Convention for the Protection of Literary and Artistic Works which provided international copyright protection to artists to control and receive royalties from the use of their creative works. A trade secret may be granted over a specialist process or product which is unknown to the public (and competitors) and has commercial value in being kept secret. As of April 2003 the organization has 179 Member States. but in 1893 they were integrated under the United International Bureau for the Protection of Intellectual Property (known by its French acronym BIRPI). trademarks. In the early to mid 1900s intellectual property began to receive growing international attention.4. whilst a patent requires the release of information regarding the methodology to reproduce the product or process. 121 WIPO. and no international regime existed for the protection of works of the mind beyond national borders.121 In 1883 the Paris Convention for the Protection of Industrial Property was concluded. allowing Coca-Cola to maintain a profitable advantage over competitors.. effectively limiting the utility of a trade secret where the secret is revealed once a product is available for commercial sale.
. The origins of WIPO date to the birth of international property law in the 19th century following growing concern over the misappropriation and commercial exploitation of scientific and technological innovations. marking the first time that inventions. F. IP laws were negotiated and enforced unilaterally. including New Zealand. A trade secret does not however prevent competitors from copying a product once it is on the market.119 Significantly. et al. et al.An additional form of intellectual property right of relevance to bioprospecting is trade secrets or undisclosed information. Abbot. or from reverse engineering a process. Initially both Conventions were administered independently.. F. and industrial designs which were invented in one country could be granted industrial property protection in another. the details of a trade secret remain confidential to the company concerned. which can not be determined by competitors once the product is on the market. 1999.. In 1873 the shortcomings of this system were illustrated by the International Exhibition of Inventions in Vienna where foreign participants refused to attend because they feared that their ideas would be stolen and commercially exploited in other countries.2 World Intellectual Property Organization
The World Intellectual Property Organization (WIPO) is a specialist United Nations agency charged with promoting the use and protection of intellectual property rights worldwide. Prior to this period. It is therefore most effective if it relates to a process (for example the method for extracting a valuable chemical from a biological organism). 2002. The duration of a trade secret is indefinite so long as the information remains undisclosed and it has commercial value and the inventor makes a concerted effort to keep the information secret. as states
Abbot. 5. Trade secret protection has effectively prevented other companies from reproducing the drink. 1999.120 The most renowned example of a trade secret is the recipe and process for producing Coca-ColaTM..
drafting studies and facilitating the exchange of IP information worldwide.
. The purpose of this law is to harmonise and streamline national and regional patent applications. Patent Law Treaty (2000). and creating a secretariat answerable to Member States. WIPO administers twenty-three international IP treaties122 (including two treaties administered jointly with other international organizations) in addition to drafting non-binding rules and recommendations clarifying the conduct of IP protection worldwide. in addition to granting international IPRs such as transnational patents and copyrights. convenes discussions and develops recommendations on specific topics as an alternative to the lengthy process of developing or amending international law. 2003. Patent Cooperation Treaty (1970). however they have been signed or ratified by a number of our trading partners such as the United Kingdom an the United States. The latter two agreements are less widely accepted and have not been adopted by New Zealand. with only seven contracting parties. facilitating the resolution of IP disputes. The Paris Convention is the most widely adopted IP treaty worldwide with a total of 164 contracting parties. 125 WIPO.wipo. The objective of the organization is ‘to promote the protection of intellectual property throughout the world’123 which it achieves by promoting international cooperation between states and international organizations in relation to IP. The key treaties administered by WIPO of relevance to bioprospecting are the Paris Convention for the Protection of Industrial Property (1883). Collectively. with the mandate to administer IP matters recognized by the Member States of the United Nations. These two laws permit the international registration of industrial property and patents and generally establish the standards and requirements for granting industrial IPRs.realized the potential and importance of IP and IP protection to achieve economic growth and promote scientific. aiding members in the development of national IP law. technological and social development.125 WIPO also conducts studies. it effectively permits WIPO to respond more quickly to the concerns of Member States and address new issues in the rapidly
Refer: http://www.124 The Patent Law Treaty is one of the most recently concluded WIPO treaties and is not yet in force. including providing legal and technical assistance to developing nations. Today. The Budapest Treaty has 56 contracting parties and establishes procedures for the international registration of microorganisms for the purpose of patenting. The agreement changed the administrative structure of BIRPI.html WIPO Convention. Article 3. establishing new negotiation and financial structures. In 1970 BIRPI evolved into the World Intellectual Property Organization following the adoption of the Convention Establishing the World Intellectual Property Organization in 1967. In 1974 WIPO was embraced by the United Nations system of organizations. followed by the Patent Cooperation Treaty which counts 120 states as members. Although this method results in non-binding decisions which are subsequently weaker than new law. and the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977). 124 Note: Not all WIPO member states permit the patenting of micoorganisms. these treaties serve to clarify the conduct of IP protection by harmonising how member states draft and implement IP law.org/treaties/index.
The WTO is based on the philosophy of freeing trade in order to encourage competition regulated by the workings of the market.127 This effectively supplemented existing work of WIPO in the area of traditional knowledge and created a formal structure for dealing with these and related issues.4. By encouraging the unhindered exchange of commodities across borders. The role of the WTO is three-fold. access to genetic resources and benefit sharing. creating a stable environment for trade and investment. 128 Bodoni. helping trade to flow as freely as possible whilst minimising undesirable side effects.126 One area where this method is being utilised is on the Intergovernmental Committee on Intellectual Property and Genetic Resources. free trade is seen to encourage international cooperation and global economic growth by phasing out protectionist policies. The first three Annexes are known as the ‘Multilateral Trade Agreements. and Folklore (the IGC). and the protection of expressions of folklore. Whilst the GATT had been a legal document and ad hoc organisation with relatively limited scope and little legislative teeth. including how best to protect indigenous knowledge under the current IP system. The WTO Agreement consists of 16 Articles and four detailed Annexes which spell out the rules and regulations for the conduct of states in the multinational trading system. in addition to Member States of the United Nations which are not members of WIPO or the Paris Union. Traditional Knowledge. Participation is open to all Member States of WIPO and the Paris Union for the Protection of Industrial Property.128 however it has yet achieve widespread agreement over these issues among Member States. 2002. 2003. 5. GA Decision WO/GA/26/6. increasing the variety of goods available and enhancing quality of life for consumers. 129 WTO. The fifth session of the IGC is to be held in Geneva in July 2003. 2001.3 World Trade Organisation
The World Trade Organization (WTO) was established on 1 January 1995 following the conclusion of the eighth round of trade talks under the General Agreement on Tariffs and Trade (GATT). The IGC was established in October 2000 following a request by Member States to address intellectual property issues relating to the protection of traditional knowledge. The IGC has convened four times since 2000 and results of the discussions are reported to the WIPO General Assembly.
. legislative and economic power. signed at Marrakesh in April 1994 at the conclusion of the GATT Uruguay round.129 The role and mandate of the WTO was defined in the Agreement Establishing the World Trade Organization (WTO Agreement).’ and constitute the Multilateral
WIPO. The Committee has considered a number of issues and published numerous of reports. acting as a forum for trade negotiations. reducing prices. the WTO became a formal international institution ratified by member governments with considerable scope and political. The WTO effectively usurped the GATT which had been formed in 1947 at the conclusion of World War Two in order to stabilise and formalise the conduct of international trade in the post-war world.changing area of IP. and providing an avenue for dispute settlement.
All parts of the WTO Agreement (excluding Annex Four).. 134 Matthews. 135 Due to the lack of enforcement measures in the WIPO Conventions.131 The inclusion of IP into the GATT (now WTO) agenda followed four successive attempts to renegotiate and strengthen the WIPO Paris Convention. The TRIPS Agreement was negotiated following growing concern over the dissemination of pirated and counterfeit products worldwide and widespread dissatisfaction on behalf of developed countries over the ability of WIPO to control these activities. a number of (developing) countries signed but failed to implement their provisions. whilst developing countries saw them as public goods that should be used to promote technology transfer and enhance economic development.130 New Zealand has been a Member and active participant of WTO negotiations since its inception. Geneva (1984). instead largely free-riding on those countries which did implement strict IP protection rules..132 but which failed following inherent differences in the views of developed and developing nations. 137 WTO. The TRIPS Agreement was developed in order ‘to reduce distortions and impediments to international trade. 132 Geneva (1980).
. and taking into account the need to promote effective and adequate protection of intellectual property rights. and covers five main issues:137 1.. 2001. the General Agreement on Trade in Services (Annex 1b) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (1c). 136 WTO Ministerial Declaration. 2002. September 1986.wto.135 developed countries – lead by the United States – began to use trade sanctions as a means to protect national industry against piracy and counterfeiting.133 Developed countries saw IPRs as private rights requiring detailed rules for enforcement and dispute settlement in order to allow industry to receive a return on their investment in research. et al. Annex Four encompasses ‘Plurilateral Trade Agreements’ which have been negotiated between selected members of the WTO and are only binding to those members concerned.’136 The Agreement consists of 73 Articles divided into seven Parts. D.Agreement on Trade in Goods (Annex 1a). D.org/english/thewto_e/whatis_e/tif_e/org6_e. are binding to Member countries and must be incorporated into national law. F.. in addition to subsequent WTO decisions negotiated multilaterally. Matthews. Preamble. The key aspect of the WTO Agreement for the management of bioprospecting is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) contained in Annex 1c.134 In the absence of definitive requirements for consistent IP policies worldwide combined with the flouting of state commitments by a number of countries under the WIPO Conventions. Geneva (1982). Establishing how the basic principles of the trading system and other international IP agreements should be implemented. 2002. TRIPS. WTO membership currently stands at 144 in addition to 30 states which have observer status. 133 Matthews. 1999. forcing the GATT Council to consider IPRs in the agenda for the Uruguay trade round. Nairobi (1981). These actions were seen as potential barriers to free trade.. technology and/or creativity. and to ensure that measures and procedures to enforce intellectual property rights do not in themselves become barriers to legitimate trade. in addition to Annex Two which covers dispute settlement and Annex Three which covers trade negotiations.htm Abbot. 2002. D.
Refer WTO website: http://www.
and Ø Plants and animals other than microorganisms. by a trademark on a product name. Significantly. and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. animal or plant life or health or to avoid serious prejudice to the environment.
Defining how to give adequate protection to IPRs. however the specific definition of what this entails remains largely to be defined by case law. TRIPS establishes minimum standards of IP protection to be enforced in all WTO Member states. 141 Paula Wilson.138 and has a much broader scope than any of the individual WIPO Conventions. 3. Patents. 139 Abbot. Article 27. including developing and least-developed countries. particularly in regards to access and benefit sharing arrangements. TRIPS incorporates the provisions of both the Paris and Berne Conventions. Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system of or by any combination thereof. comm. Article 27 therefore permits WTO Members to unilaterally exclude certain products from patenting. 140 TRIPS. and promote the free and unrestricted flow of information between
Trademarks. Establishing a timeframe in which developed and developing countries should implement the Agreement. These are:140 Ø Inventions…necessary to protect ordre public or morality. et al. and ensures adherence of states through the WTO dispute settlement procedures and enforcement mechanism. although allows these latter countries a longer timeframe over which to implement the Agreement. 5. therapeutic and surgical methods for the treatment of humans or animals. F. However. TRIPS clarifies the conditions under which these can be granted and the duration over which they can stand for. pers..141 Some opponents of the IP system proclaim that excluding products from patenting is a method to facilitate the distribution of pharmaceutical and other products to developing countries. 4. Ø Diagnostic.. It excludes plant variety rights.139 The ‘Council for TRIPS’ monitors the operation of TRIPS including ensuring that WTO Members comply with the provisions of the document. 1999. TRIPS also specifies the products which Members may exclude from patentability. including to protect human. How countries should enforce IPRs adequately in their own territories. and the control of anti-competitive practices. The TRIPS Agreement thus codifies international standards for the granting of IPRs and is of prime significance for the management of bioprospecting. prevent biotechnology research on plants and animals.
. How to settle disputes on IP between members of the WTO. It covers and adds significantly to existing international IP law covering both copyright and industrial property rights. Industrial designs. Trade secrets. or the granting of a trade secret. in addition to establishing enforcement and dispute settlement procedures which had been unable to be negotiated under WIPO.2. Many commercial products which are derived from bioprospected materials are patented or have some other IPR attached to them eg. Layout-designs of integrated circuits.
Significantly. Geographical indications of origin.
non-obvious. to the mutual advantage of producers and users of technological knowledge and in a manner conductive to social and economic welfare.5). By granting IPRs over inventions. 2003. trade secret. some also argue that this effectively inhibits access and benefit sharing to third parties by permitting a monopoly over the production. 144 TRIPS. including new breeds and genetically modified organisms.countries. and capable of industrial application. Case law has concluded that living organisms (such as those produced by genetic modification) or parts thereof (the structure of a protein. Article 7. money and intellectual capacity involved in such activities. Article 7 of the TRIPS Agreement entitled ‘Objectives’ addresses this issue by requesting that ‘the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology. or in the case of whole plants or animals from a patent over a process. including over bioprospected products derived from native plants and/or traditional knowledge where there is little requirement for developers to share benefits of product development or commercialisation with the source country or community. new inventions.142 As per Article 27.143 This has caused tension in a number of areas. and on legal grounds for a perceived lack of ‘novelty’. and positions it as more of a moral directive. 2002. but in return lead to the public disclosure of information as part of the conditions of being granted a patent. Significantly. technology and products. limiting technological innovation and the spread of new information. emphasis added. investment and new technologies to other countries where secure IPRs can be obtained. Additionally. 2001. Significantly however. it does not prevent research and product development in these areas per se. In recent time the patenting of biological organisms has been highly contentious – both for moral reasons. This may discourage firms from investing in these areas. and to a balance of rights and obligations. preventing a product from being patented in one country does not prevent it from being patented in another. such as a trademark. may or may not be patented under TRIPS and are subject to the IPR laws of the state concerned. products and information become public goods with reduced commercial value. There is a wealth of literature published on this issue. Patents are therefore contentious in that they effectively create limited monopolies over new inventions. 1999. See for example The Royal Society. If patents are not permitted. but ultimately can inhibit commercial research as there is no longer a secure return on the investment of time. Shiva. a chemical compound) are patentable as long as the products fulfil the requirements of being novel. for example as presented by the UPOV Convention (refer section 5. nor from being granted another intellectual property right. Laird.’144 The use of the term ‘should’ however effectively removes this Article from being legally binding. new plant varieties are required to be patented as per the TRIPS Agreement unless protected under a stand alone sui generis scheme.
. It may therefore push lucrative industry. New animal varieties. marketing and sale of an invention (for patents and copyrights) or preventing the disclosure of new information and knowledge (for trade secrets). Articles 66 and 67 however request that developed countries ‘provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging
. including in regards to the provision of legal and technical assistance. Article 67. on request and on mutually agreed terms and conditions. is binding on all Members. 147 TRIPS.. technical and financial cooperation in favour of developing and least-developed countries. 1999. et al. and the promotion of technical cooperation between developed and developing states.
TRIPS. The Agreement seeks to promote cooperation between the two organisations concerning the implementation of the TRIPS Agreement. and it is argued by some that it is impossible to achieve whilst the technology that is most needed is protected by patents which effectively limits access and prevents poorer countries from ‘creat[ing] a sound and viable technological base.’147 The TRIPS Agreement entered into force on 1 January 1995 and like all parts of the WTO Agreement. In 1996 WIPO formally linked to the workings of the WTO through the Agreement Between the World Intellectual Property Organization and the World Trade Organization. Article 66(2).
.technology transfer to least-developed country Members’145 and that they ‘provide. and has largely usurped the WIPO as the key international body for regulating international IPRs. 148 Abbot.’146 In reality. technological transfer and financial assistance occurs infrequently. Article 66. Although membership to the WTO is slightly lower than signatories to both the Paris and Berne Conventions. the stricter provisions of TRIPS means that this Agreement is more widely enforced by states. TRIPS. F.148 WIPO however remains as the sole organization to grant international IPRs and continues to address rising issues of concern in its various negotiating fora.
. The organization was established in 1966 following the convening of a Diplomatic Conference on the Protection of New Varieties of Plants held in Paris in 1961. for the benefit of society.5. including defining the rules under which a plant variety right can be granted. The Convention has undergone three revisions. however it is linked to WIPO as the Secretary-General of UPOV is also the Director-General of UPOV. 2. commonly known varieties. Article 6. plant variety rights150 are seen to provide an economic incentive for plant breeders to invest in the development of new agricultural.5
INTERNATIONAL UNION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS
The International Union for the Protection of New Varieties of Plants (known by its French acronym UPOV) is an intergovernmental organization responsible for granting intellectual property rights to breeders of new varieties of plants. and the signing and entry into force of the International Convention for the Protection of New Varieties of Plants (UPOV Convention 1961). 1978 and 1991. including use for the development of new varieties.upov. nor do they limit a purchaser of a variety from selling the products of the plant (eg.’149 Like patents. Article 6. Plant variety rights also safeguard the commercial interests of breeders by preventing the sale of seed or plants without acknowledging the input of the original developer. horticultural and forestry crops by providing a limited monopoly over the propagation and sale of a new variety. 153 UPOV Convention 1978. with the aim of encouraging the development of new varieties of plants. They must be distinct from existing. 2002. Be uniform or homogeneous in form. 2002. as defined by the Plant Variety Act 1987. The mission statement of UPOV is ‘to provide and promote an effective system of plant variety protection. 152 Plant Variety Rights Office.’ 151 UPOV. in 1972. 2002. 3. Plant variety rights are granted for a limited period and in New Zealand last for 20 years in the case of non-woody plants.int
Also known as ‘plant breeder rights. To be eligible for protection.152 The UPOV Conventions of 1978 and 1991 set out minimum standards for the protection of plant variety rights. UPOV is essentially autonomous and has its own Council and negotiating fora. fruit or wood) or from re-sowing seed produced by the parent plants. varieties must satisfy four criteria:153 1. UPOV. Stable ie. New Zealand joined the Union in 1981 and is bound by the 1978 version of the text. Total membership to the Union is 52 states as of April 2003. or 23 years in the case of woody plants. the characterististics of the plant must remain relatively unchanged following successive generations of propagation. and must not have been
www. and 4. UPOV Convention 1991. New in the sense that they must not have previously been offered for sale in the country where the PVR is being applied for.151 They do not inhibit the use of a variety for research purposes. The 1991 document (to which New Zealand is not a signatory) generally clarifies and extends the provisions of the 1978 document in light of new technologies and following experience implementing the 1978 document.
depending on the municipal law of that country. by granting a monopoly right over a product. bioprospecting – as a subset of biotechnology – has traditionally included plant and animal breeding.2. depending on the variety of plant.1 and 2.’ As illustrated in sections 2. Under plant variety rights. this can limit opportunities for access and benefit sharing by source countries and communities. If this process is conducted overseas this IPR may be longer. a breeder is able to commercialize native species and gain a 20 to 23 year monopoly over the plant (assuming that this is done in New Zealand under the Plant VarietyRights Act). Plant variety rights are significant for bioprospecting management depending on the definition used for the term ‘bioprospecting.offered for sale in other countries for at least four to six years. As discussed above.
The organization was established in 1945 at the conclusion of World War Two following the convening of the United Nations Conference on Food and Agriculture held in the United States from 18 May to 3 June 1943. The main objectives of the CGRFA are to ensure the conservation and sustainable utilization of genetic resources for food and agriculture.156 Membership of the CGRFA is
The FAO began life eight days prior to the establishment of the United Nations. Fisheries. The organisation is composed of eight departments (Agriculture. and providing development assistance to developing countries through a range of technical assistance projects. as well the fair and equitable sharing of benefits derived from their use. and is governed by the Conference of Member Nations which meets every two years. is a permanent forum where Member governments discuss and negotiate matters relevant to genetic resources for food and agriculture. The Conference requested the formation of an international organization to address issues surrounding food and agriculture. The Commission on Genetic Resources for Food and Griculture (CGRFA) housed in the Agricultural directorate. entered into force only subsequent to the signature of a specified number of states. Technical Cooperation. scientists and non-governmental organizations.6 5. for the benefit of present and future generations. and to better the condition of rural populations.fao. This is because the FAO Constitution came into effect immediately upon signature. which had been concluded in June of the same year. farmers. and on 19 October 1945 thirty-four nations signed the Constitution of the Food and Agriculture Organization of the United Nations.6.fao. whereas the Charter of the United Nations. Economic and Social Affairs. formally establishing the first international institution of the post-war economy.5. New Zealand joined the organization on 16 October 1945. 5. General Affairs and Information. forestry. to improve agricultural productivity.org/ag/cgrfa/default.6.155 It achieves this by concentrating work in three main areas. gathering information and providing advice to governments. Forestry.154 The mandate of the FAO is to raise levels of nutrition and standards of living for all peoples. acting as an international forum in which to discuss and formulate policy on food and agricultural issues.htm
. fisheries and rural development. 155 www. consisting of 183 states and the European Community.org 156 http://www.2 International Treaty on Plant Genetic Resources for Food and Agriculture
One of the key areas of concern in relation to bioprospecting is work being conducted by the FAO Agricultural directorate.1
FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS Introduction
The Food and Agriculture Organization of the United Nations (FAO) is a specialized agency of the United Nations and the lead agency responsible for managing agriculture. Sustainable Development. and Administration and Finance). The organization currently has 184 Members.
including thirty-six genera of food crops and twenty-nine genera of forage plants. in harmony with the Convention on Biological Diversity.’ The text of the Treaty is closely aligned to the objectives of the Convention on Biological Diversity (refer section 5. Negotiations spanned seven years due to concerns over access and benefit sharing arrangements. November 2001. Article 1. and the equitable sharing of benefits arising out of the utilization of genetic resources.’158 The text of the Treaty encompasses thirty-five Articles and two Annexes covering such issues as the conservation. The Treaty on Plant Genetic Resources revises the non-binding International Undertaking on Plant Genetic Resources.1. One significant achievement of the CGRFA has been the development of the International Treaty on Plant Genetic Resources for Food and Agriculture (the Treaty on Plant Genetic Resources).159 It is argued however that the use of qualifying and vague language throughout the text significantly limits the authority of the document. Articles 1-3. for sustainable agriculture and security.2) which promotes the conservation and sustainable use of biodiversity. The Treaty also incorporates the provisions of a number of non-binding documents including the 1996 Global Plan of Action for the
FAO Press Release 01/85 C5.157 The objectives of the Treaty on Plant Genetic Resources are ‘the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use.’ ‘in accordance with [a state’s] needs and priorities.
. and currently stands at 164 states (including New Zealand) plus the European Community. The new Treaty was negotiated in order to create a legally binding agreement on plant genetic resources for food and agriculture which was in harmony with the provisions of the Convention on Biological Diversity. in order to help feed the world’s population. Annex I.’ This stops short of Article 1 of the 1983 International Undertaking which asserted that they are ‘a heritage of mankind and consequently should be available without restriction. The Preamble and Part I160 of the text places the document in context and illustrates the raison d’etre of the Treaty which is to preserve the genetic diversity of plant genetic resources for food and agriculture for present and future generations. 160 Treaty on Plant Genetic Resources. Frequent use of terms such as ‘as appropriate.open to all FAO Members and Associate Members. and the formation of a multilateral system of access and benefit sharing. evaluation and documentation of plant genetic resources.’ and ‘subject to national legislation’ dilutes the main provisions and illustrates the lack of willingness of states to implement and adhere to the provisions of the Treaty. 159 Treaty on Plant Genetic Resources. establishment of a funding mechanism. The Preamble acknowledges the importance of the diversity of plant genetic resources for food and agriculture and includes the statement that plant genetic resources are a ‘common concern of all countries. the protection of intellectual property rights and disagreement over the number of species which should be covered by the Treaty. farmers rights to aid in the conservation and development of plant genetic resources. which was adopted in 1983 to promote intergovernmental cooperation in matters relating to plant genetic resources for food and agriculture. Treaty on Plant Genetic Resources. collection. adopted by FAO Member states at the thirty-third FAO Conference held in Rome. exploration. The final document covers more than sixty-four plant varieties.
’166 Articles seven and eight promote international cooperation between Contracting Parties in the achievement of the objectives of the Treaty. 2.’ This is significant as the right of farmers to propagate farm-saved patented seed is a contentious issue between farmers. Article 4.’ which may include:167 1. in a fair and equitable way. In addition. Part III entitled ‘Farmers’ Rights’ requests that Contracting Parties ‘protect and promote Farmers’ Rights. conservation and sustainable use of plant genetic resources for food and agriculture’ and requests that states conduct a number of activities to assess.162 and the 1996 World Food Summit Plan of Action.org/docrep/003/w3613e/w3613e00. Article six then requests that states ‘develop and maintain appropriate policy and legal measures that promote the sustainable use of plant genetic resources for food and agriculture’ followed by a thorough list of activities which constitute ‘sustainable use. the right to equitably participate in sharing benefits arising out from the utilisation of plant genetic resources for food and agriculture. and to share.fao. This section outlines the establishment of a Multilateral System of Access and Benefit Sharing which is desired to be ‘efficient. Part IV is of high importance for the management of bioprospecting. 166 This is significant as the use of terms such ‘sustainable use’ or ‘sustainable development’ have frequently been left undefined in international documents.htm 163 Ibid. exchange and sell farmsaved seed and propagating material remains ‘subject to national law and as appropriate. the right to participate in making decisions. effective. 165 Treaty on Plant Genetic Resources. the protection of traditional knowledge relevant to of plant genetic resources for food and agriculture.161 the 1996 Rome Declaration on World Food Security. and 3.’165 Article five requests that Contracting Parties ‘promote an integrated approach to the exploration.2. Part II illustrates the ‘General Provisions’ of the document which includes the requirement for Contracting Parties to ‘ensure the conformity of its laws. seed manufacturers and governments. Articles 4-17. the rights of farmers to save.pdf http://www. The methods for how these provisions are to be achieved are left open to the individual states. regulations and procedures with its obligations as provided in the treaty. and transparent. the benefits arising from the utilization of these resources. 164 Treaty on Plant Genetic Resources.
. document and preserve the genetic diversity of their plant populations.163 Parts II to V164 of the Treaty define the main requirements of signatory states.Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture. Article 9. on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.’ Article 11 together with Article 15 specifies that the Multilateral System is to cover 65 genera of crop and
http://www. both to facilitate access to plant genetic resources for food and agriculture. at the national level.cgair.org/gpaE. emphasising the need for capacity building in developing countries and the need to enhance international activities related to the conservation and sustainable use of plant genetic resources.sgrp. 167 Treaty on Plant Genetic Resources.
(ii) strengthen facilities for the conservation and sustainable use of plant genetic resources for food and agriculture.fodder plants (listed in Annex I of the Treaty) which are found in the jurisdiction of Contracting Party countries. capacity-building. breeding and training’ and is subject to a number of provisions. Article 13. requesting that ‘benefits arising from the use. 170 Treaty on Plant Genetic Resources. the conditions of which are to be established at the first meeting of the Governing Body of the Treaty. including that no intellectual property rights may be claimed over the material in the form received from the Multilateral System. The Multilateral System also establishes a benefit sharing regime. Sharing of the benefits arising from the commercialization of a product which has been sourced from a species in the Multilateral System is considered in Article 13. and (iii) promote research in and involving institutions of developing countries.
There are sixteen International Agricultural Research Centres worldwide. This does not however preclude the granting of intellectual property rights over products derived or created (ie.168 Under the System Contracting Parties are requested to provide facilitated access to these plant genetic resources to other Contracting Parties via Material Transfer Agreements. The level of payment is to be determined at the first meeting of the Governing Body of the Treaty. access to and transfer of technology. bioprospected) from these original plant materials. and request for the creation of a funding mechanism. including commercial. Contracting Parties are (i) requested to promote partnerships and collaboration in research and technology development.171 Although the specific procedures for how this capacity-building is to be achieved are undefined. in addition to those and other species which are in the collections of International Agricultural Research Centres. however it is questioned how effective the first two instruments can be when countries are permitted to inter alia ‘respect applicable property rights and access laws’170 associated with the information and technology to be exchanged. Access is to be granted ‘solely for the purpose of utilization and conservation for research. it is likely to be facilitated by the FAO and the funding mechanism provided for in Part VI of the Treaty. and (ii) are required to ‘pay [to the Governing Body of the Treaty] an equitable share of the benefits arising out of the commercialization’ of a product.2. and will be voluntary if the product is ‘available without restriction to others’ (ie.2(d) and includes both monetary and non-monetary benefits. of plant genetic resources for food and agriculture under the Multilateral System…be shared fairly and equitably through the following mechanisms: the exchange of information. Article 13. The final sections of the document172 are mainly administrative and outline the operation of the Treaty and associated bodies. Article 13. 171 Treaty on Plant Genetic Resources. as specified in the 1996 World Food Summit Plan of Action. not subject to an intellectual property right).2(c). They are run by the Consultative Group on International Agricultural Research (CGIAR). and the sharing of benefits arising from commercialisation.’
. Capacity-building is focussed on three areas and aims to (i) strengthen programmes for scientific and technical education and training.’169 Priority is to be given to developing countries and countries with economies in transition. 172 Part VI ‘Financial Provisions’ and Part VII ‘ Institutional Provisions. Article 13 elaborates on each of these benefit sharing mechanisms.2(b)(ii). 169 Treaty on Plant Genetic Resources.
. but only 18 states have ratified. including those of access and benefit sharing. the Treaty is yet to enter into force and therefore it is impossible to assess the success of its provisions.Significantly. approval or accession. however remains party to the non-binding International Undertaking on Plant Genetic Resources which has been superseded by the Treaty. New Zealand was present during negotiations but did not sign the final text and has yet to adopt the Treaty. approved or acceded. approval or accession have been deposited by Members of FAO.173 As of April 2003. acceptance. acceptance. The Treaty will enter into force on the ninetieth day following the deposit of the fortieth instrument of ratification. 78 states have signed.
Provided that at least twenty instruments of ratification.
New Zealand is a signatory to or Member of a number of international conventions and organizations of direct relevance to bioprospecting. The Convention states that a country has full sovereignty over the use and management of resources in the 12 nautical mile territorial sea.
. with provisions for research collaboration. The World Intellectual Property Organization (WIPO). the Convention aims to facilitate marine scientific research in all areas of the ocean. The document covers a wide range of issues and requests that the utilisation of genetic resources which are native or have been obtained under provisions of the Convention be accompanied by access and benefit sharing arrangements. followed by a more detailed analysis into the international commitments of relevance to bioprospecting management in this country. Although an in-depth study into the scope of bioprospecting activities in New Zealand has yet to been undertaken. the World Trade Organization (WTO) and the International Union for the Protection of New Varieties of Plants (UPOV) specify the conditions under which intellectual property rights can be granted over works of the mind.6. The Convention on Biological Diversity (CBD) is the most significant document for bioprospecting management and specifies the need to conserve and sustainably use biodiversity. Significantly. information and technology exchange in order to achieve this objective. The Agreement on Trade Related Aspects of Intellectual
MFE. New Zealand’s national priorities to preserve the natural environment whilst promoting research and development combine with our international obligations to present a framework under which to manage the activity.174 It is an ancient but rapidly diversifying industry effecting a wide range of stakeholders and presenting some inherent difficulties for management. Research is to promote international cooperation. being conducted by a wide range of actors. The Convention on the Law of the Sea joins the CBD to define a state’s jurisdiction over its natural resources. This paper has provided a brief overview of the industry in New Zealand and further afield. 2003. States also have sovereign rights over biological and mineral resources on or beneath the continental shelf. it is known that the activity is widespread. in addition to the requirement to equitably share in the benefits arising from the utilisation of genetic resources. and is occurring in the absence of overarching policy or regulation.0
DISCUSSION AND CONCLUSION
Biodiversity prospecting – or ‘bioprospecting’ – is the examination of biological resources for features that may be of value for commercial development. It is noted however that the weak language of the Convention combined with the lack of an enforcement mechanism significantly limits the effectiveness of the document. with requirements to gain the prior consent from a coastal state when researching in areas under its jurisdiction. with the sovereign right to enforce law in keeping with the requirements of the Convention to the edge of the 200 nautical mile exclusive economic zone. however the ‘Area’ of seabed beyond this limit as well as resources of the ‘High Seas’ beyond 200 miles are outside state jurisdiction.
In addition. It proposes an international access and benefit sharing regime. It is important however to emphasize the importance of IPRs for industry. It is emphasized that these international commitments reviewed above must join with New Zealand’s national goals and policies to create a fully integrated bioprospecting policy taking into account the needs of all stakeholders. This effectively creates a private right over knowledge and innovation.175 This prevents source country communities from utilizing the new technology without the payment of royalties. A number of critics emphasise that intellectual property rights (IPRs) inherently conflict with requirements for access and benefit sharing because they convey to the right-holder a limited or unlimited monopoly over the use and commercial exploitation of the material concerned. Secondly.
As defined by the TRIPS Agreement. and is not considered to be ‘novel. The Food and Agriculture Organization of the United Nations (FAO) has recently concluded a new binding International Treaty on Plant Genetic Resources for Food and Agriculture. sustainable use. Firstly. for the benefit of society. There are two major concerns frequently raised in the arena of IPRs and bioprospecting: the lack of protection provided to indigenous peoples over traditional knowledge. the current intellectual property system provides little protection to traditional knowledge holders because such knowledge is in the public domain.’ This has led to traditional medicines and other knowledge being commercialized with no consultation or benefits returning to the source community. WIPO however maintains a prominent role in the discussion and negotiation of issues of concern to Member states and continues to review and grant international intellectual property rights.
. and the contradiction of benefit sharing and IPR protection. illustrating an inherent conflict between the needs of source communities and bioprospecting organizations. by securing a monopoly right over a resource this limits opportunities for benefit sharing as this removes the intellectual property from the public domain for a period of at least 20 years. IPRs prevent pirating and counterfeiting and provide a return on what can be years and many thousands of dollars spent of research and development. it is unable to be ascribed to a single person. compromising language which effectively nullifies the majority of obligations established in the Treaty. however it is questioned whether this can be effectively implemented under the current IPR system. The UPOV provides a non-binding sui generis system for the protection of plant variety rights. and equitable sharing of benefits arising from of the utilization of plant genetic resources for food and agriculture. The document does however represent a step forward towards the implementation of the CBD and may provide a model onto which other access and benefit sharing regimes may be built. the theory being that this encourages innovation by guaranteeing a return on the creators’ investment of time. and aims to encourage the development of new varieties of plants. the document aims to complement the CBD and promote the conservation. Although it is yet to enter into force. without which many organizations would be unable to operate. the text is full of weak. It specifies the conditions under which a breeder can be granted an intellectual property right over a new plant variety. for the benefit of all. money and intellectual capacity.Property Rights (TRIPS) adopted in 1994 as Annex 1c of the WTO Convention has largely superceded the WIPO in the development and codification of international intellectual property law.
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