Intellectual property and environmental protection of crop biodiversity under international law

PhDEMBARGOED UNTIL 01/06/2014In agricultural research, plant genetic resources (PGR) are “non-traditional infrastructural resources”, which may generate higher social value and positive externalities if they are managed in an openly accessible manner. The privatisation of crop biodiversity is based on the assumption that the internalisation of these externalities is the panacea to fostering private research investment. However, if the domestic plant breeding and biotechnology capacity is limited, the above normative approach may fall short of expectations because the social costs of establishing or strengthening exclusion rights are higher than their social benefits. The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) is the only international agreement whose normative approach reflects in part this economic reality. However, its constructively ambiguous intellectual property rights-related provisions do not effectively fence off crop biodiversity from private appropriation. Besides, the desire of most countries not to prejudice the negotiation of an international access and benefit sharing regime under the UN Convention of Biological Diversity may prevent the extension of the ITPGRFA’s “commons” management principles to a larger number of essential food crops. The scope of this study, which focuses on PGR and agricultural innovation, derives from the paramount importance that both the design and allocation of rights in these areas might have for global food security. The innovation system perspective shows that social and economic development depends on the institutional context in which technological change occurs. Finally, the study of the transition between property regimes shows that the global reform of the institutional arrangements, which govern the present and future allocation of wealth from agriculture, is insufficient to achieve international equity so as to meet the target of reducing the proportion of people who suffer from hunger in accordance with goal 1 of the Millennium Development Goals

The expert briefing document: a developing country perspective on the making of the BBNJ Treaty

The Biodiversity Beyond National Jurisdiction (BBNJ) Treaty, also called the Oceans or the High Seas Agreement is the newest international law Treaty negotiated at the United Nations. The conclusion of this Treaty is widely regarded as an expression of successful multilateralism. The substantive provisions on marine genetic resources in Part II of this progressive Treaty set the agenda for biodiversity governance globally by incorporating several novel elements including digital sequence information on marine genetic resources, the use of a standardised batch identifier to label genetic resources collected from areas beyond national jurisdiction and the introduction of an assessment model based on aggregate usage of genetic resources rather than individual products and uses. These elements were proposed by the G77/China, a group of 134 developing countries in the final round of negotiations. This briefing document is significant not just for the achievement of textual and substantive elements in the final text of the Treaty, but it is also as a record, representative of different ways in which knowledge and expertise contribute to the making of international law

Fair and equitable sharing of benefits from the utilization of marine genetic resources in areas beyond national jurisdiction: Bridging the gaps between science and policy

Marine genetic resources are a subject of a growing body of research and development activities, as demonstrated by the abundance of marine patented genes reported in GenBank. Given the lack of a comprehensive legal regime for the management of marine genetic resources in areas beyond national jurisdiction, the General Assembly of the United Nations met in 2006 to discuss whether there are regulatory or governance gaps and how to address them. Besides the crystallization of the different political positions, the process is now advancing towards making a decision about whether to develop an international instrument under the United Nations Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of marine biological diversity, within which the regulation of access to genetic resources and the sharing of benefits from their utilization has emerged as an in-dissociable issue. In order to propose concrete options to be considered for the establishment of a legal framework addressing these issues, policy-makers need to better understand the feasibility, the costs and the modalities of scientific activities undertaken, together with the actual level of commercialization of new products. They also need to be aware of the already advanced practices in place within the scientific community, especially regarding sharing of non-monetary benefits. This paper particularly highlights and discusses practical scenarios to advance in the international process, based on the approaches adopted in other regional and international regimes for the management of genetic resources and on the best practices developed within the scientific community. © 2014 Elsevier Ltd