Why the Nagoya Protocol to the convention on biological diversity matters to science and industry everywhere

Abstract

The once customary view that genetic resources, together with associated traditional knowledge, constituted the "Common Heritage of Mankind" was first directly challenged in 1962, when the United Nations adopted a Resolution on the sovereignty of states over national resources. By the 1990s, when the most developed countries were demanding universal respect for patented microbes and plant breeders' rights under what eventually became the Agreement on Trade-Related Aspects of Intellectual Property Rights of 1994, the developing countries struck back with "biopiracy" claims of their own. Specifically, they argued that the downstream innovations protected by intellectual property rights in the Global North were often based on genetic resources taken from the biodiversity rich countries, along with associated traditional knowledge of indigenous populations. On this view, unauthorized use of these same genetic resources and traditional knowledge even for public research purposes constituted an illegal encroachment on their territorial sovereignty. In 1992, that thesis became firmly established in the Convention on Biological Diversity (CBD), now signed by some 190 countries. In effect, the CBD asserted territorial sovereignty over all genetic resources and related traditional knowledge, and it conditioned the rights of anyone-including research scientists-to remove or otherwise use such resources on the permission of the relevant government authorities. Taken together, the provisions of the CBD established the premises for an international regime of misappropriationwith respect to unauthorized uses of genetic resources-- plant, microbial, animal-and all related traditional knowledge originating from the territories of nation states adhering to the CBD. Reasonable as these arrangements may sound, however, they are in practice onerous and often unworkable from the scientific researchers' perspective. In the first place, provider countries have been slow to enact implementing legislation, and once enacted, these laws tend to be diverse, complicated, and often full of both legal and practical uncertainties. Second, there is no consensus regarding access and benefit-sharing obligations applicable to genetic resources acquired before 1993, when the CBD took effect. This same problem will resurface with the adoption of the Nagoya Protocol to the CBD in 2010.