Professional Documents
Culture Documents
Oluwatobiloba Moody Address
Oluwatobiloba Moody Address
Citation:
Oluwatobiloba Moody, Addressing Biopiracy through an
Access and Benefit Sharing Regime-Complex: In Search of
Effective Protection for Traditional Knowledge
Associated with Genetic Resources, 16 Asper Rev. Int'l
Bus. & Trade L. 231 (2016)
Copyright Information
OLUWATOBILOBA MOODY
TABLE OF CONTENTS
Synopsis 232
1. Introduction 233
LLB (Ibadan), LLM (Western Cape) PhD (Queen's), Post-doctoral Fellow, Centre for
International Governance Innovation (CIGI). Former coordinator, WIPO
Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore. The writing and research for this paper was
concluded during the period of my doctoral studies. I am grateful for the generous
financial support by the Canadian Social Sciences and Humanities Research Council
(SSHRC) through the award of the Vanier Scholarship which made this paper possible.
I am also grateful for the very helpful comments received on the working draft of this
paper from participants at the Asper IntLaw Conference, 2016, as well as from the
anonymous reviewers of this paper. All views, errors and omissions remain mine. PTL.
232 Asper Review [Vol. XVI
V. Conclusion 276
SYNOPSIS
1. INTRODUCTION
the seeming unfair distribution of rights and resources arising from the use
of TK - a justification popularly discussed as biopiracy. Biopiracy may be
construed as the result of the commercial/non-commercial drive to utilize
the intellectual property (IP) system to acquire rights over inventions based
on genetic resources (GRs) and/or its associated TK, without complying
with existing national or international legal obligations governing the
acquisition and use of such resources.
Arising from the importance of TK to indigenous groups and States and
the real threat of biopiracy, several countries, especially developing
countries, have taken on the difficult challenge of implementing regulations
governing the use and protection of TK within their borders. Beyond such
domestic measures, efforts to secure protection for TK have also been
pursued at the international level. Two significant normative developments
in international law - one concluded and the other ongoing - form the
basis of this paper's reflection on the effective protection of TK from
biopiracy.
First, the Nagoya Protocol.) The Nagoya Protocolwas adopted in 2010 and
entered into force in 2014.' A subsidiary instrument to the Convention on
Biological Diversity (CBD), the Nagoya Protocol was negotiated in response to
calls for an international regime which would implement the third objective
of the CBD that relates to the fair and equitable sharing of benefits arising
from the utilization of genetic resources (GRs). 6 The Nagoya Protocol
establishes this international access and benefit sharing (ABS) regime, made
up of the CBD, the Nagoya Protocol, and other complementary instruments
including the Bonn Guidelines and the InternationalTreaty for Plant Genetic
Resources for Food and Agriculture (ITPGRFA). "While the Nagoya Protocol does
not specifically call for the protection of TK, its general provisions offer in
4 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits
arisingfrom their Utilization to the Convention on Biological Diversity, 29 October 2010, [no
UNTS Volume Number has yet been determined for this record] (entered into force 12
October 2014) [Nagoya Protocol].
The Nagoya Protocol entered into force exactly 90 days after the fiftieth country ratified
the Nagoya Protocol in accordance with Article 33 of the Nagoya Protocol.See Convention
on Biological Diversity [CBD], "Parties to the Nagoya Protocol", online: CBD
<https://www.cbd.int/abs/nagoya-protocol/signatories/>.
6 See Nagoya Protocol, supra note 4, para 2 (Preamble to the Nagoya Protocol). Convention
on Biological Diversity, 5 June 1992, [no UNTS Volume Number has yet been determined
for this record] (entered into force 29 December 1993) [CBD].
2016] Addressing Biopiracy 235
inventions, literary and artistic works, designs, symbols, names and images
which are used in the fields of commerce." Underlying its prescriptions are
two broad categories of justifications: the ethical/moral justifications and
the instrumental justifications.'"The former category is premised on the
natural rights that creators have in their creation, while the latter is
premised on the rationale that the lack of IP protection would mean an
insufficient production of intellectual products.1 3 It is in this latter context
that the IP system is recognized as a simulant for innovation and creativity.' 4
This underlying rationale, which draws its origins from the early
European experience, has served to exclude TK (and its holders) from its
protection framework. The exclusion of TK from the IP system presents a
difficulty for the continued justification of the IP system as we know it
today. This is on the basis that the IP system is not sufficiently representative
of knowledge holders and creators all around the world. The innovative
tendencies of indigenous and local communities, which are a significant
driver of 'modern' innovation, are thus largely undermined. Arising from
suggestions of incompatibility, '5 this exclusion is due to the peculiarities of
this knowledge which do not necessarily align with the general concept of
knowledge recognized and catered for within the classical IP system.'" Sanjay
Bavikatte notes the following anti-TK assumptions which underlie the IP
system: the assumption that the progenitors of knowledge are clearly
identifiable; the assumption that new knowledge is clearly distinguishable
17 Ibid.
1s See WIPO Background Brief No 2, "The WIPO Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
(IGC) (2016) at 2, noting that the IGC was 'conceived as part of a larger and structured
endeavour by WIPO to move towards a modern, responsive IP system that could
embrace non-Western forms of creativity and innovation, be comprehensive in terms
of beneficiaries, and be fully consistent with developmental and environmental goals'.
238 Asper Review [Vol. XVI
19 The TWAIL scholarship is channelled towards a 'commitment to centre the rest rather
than merely the west, thereby taking the lives and experiences of those who have self-
identified as Third World much more seriously than has generally been the case'. See
Obiora Okafor, "Critical Third World Approaches to International Law (TWAIL):
Theory, Methodology, or Both?" (2008) 10 Intl Community L Rev 371 at 376. See also
Antony Anghie & BS Chimni, "Third World Approaches to International Law and
Individual Responsibility in Internal Conflicts" (2003) 2 Chinese J Intl L 77 at 78,
noting that TWAIL scholarship bears a contextual undertone which views international
law from the perspective of the lived history of third world peoples. Consequently,
TWAIL draws its distinctiveness on the basis of a historically aware methodology - one
which challenges the simplistic visions of an innocent third world and a colonizing and
dominating first world. See James Thuo Gathii, "TWAIL: A Brief History of its Origins,
its Decentralized Network, and a Tentative Bibliography" (2011) 3:1 Trade L & Dev 26
at 34.
20 Wilfred Jenks is attributed with providing the earliest background analysis on
fragmentation of international law. See ILC Study Group, 'Fragmentation of
International Law: Difficulties arising from the Diversification and Expansion of
2016] Addressing Biopiracy 239
International Law' Report of the Study Group of the International Law Commission
finalized by Martti Koskenneimi (A/CN.4/L.682 and Corr.1) (13 April 2006) paras 5-
6. He identified the international world's lack of a general legislative body which
resulted in multiple unrelated sources churning out international laws as well as the
development of laws governing the revision of multilateral instruments as well as
defining the effects of such revisions, as the two key reasons for the fragmentation of
international law. Ibid. See also C Wilfried Jenks, "The Conflict of Law-Making
Treaties", (1953) 30 Brit YB Intl L at 403.
21 See Margaret Young, "Introduction: The Productive Friction between Regimes", in
Margaret Young, ed, Regime Interactionin InternationalLaw: Facing Fragmentation, 1 at 2
noting that there has never been a single global legislature or appellate court to mould
a unified body of international law. Nor has there ever been a uniform will for such a
system by sovereign states. See also, Amir A Majid noting, with reference to formation
of international institutions; '...the international legal regime does not have a
pyramidical organization converging its ultimate authority in a universal legislature or
government which can set up regulatory procedures or criteria...'. See Amir A Majid,
Legal Status of International Institutions: SITA, INMARSAT and EUROCONTROL
Examined (England: Dartmouth Publishing Company Ltd., 1996) at 119.
22 See Margaret A Young, "Regime Interaction in Creating, Implementing and Enforcing
International Law" in Margaret A Young, ed, Regime Interaction in International Law:
Facing Fragmentation(Cambridge, UK: Cambridge University Press, 2012) at 91, noting
the interaction of regimes during the making, implementation and enforcement of
international law.
23 See, for instance, Raustiala, who makes this argument, albeit within the context of
international regime complexes. See Kal Raustiala & David G Victor, "The Regime
240 Asper Review [Vol. XVI
Complex for Plant Genetic Resources" in Beth A Simmons & Richard H Steinberg,
eds, InternationalLaw & InternationalRelations (Cambridge University Press, 2006). See
also Andreas Hasenclever, Peter Mayer & Volker Rittberger, Theories of International
Regimes (Cambridge University Press: UK, 1997) at 37, noting that 'regimes do not
emerge in a cognitive and institutional vacuum', but are rather based on and influenced
by earlier experiences of actors.
24 Laurence R Helfer, "Regime Shifting: The TRIPs Agreement and New Dynamics of
International Intellectual Property Lawmaking" (2004) 29 Yale J Intl L 1 at 10. See also
Hasenclever, Mayer & Rittberger, supra note 23 at 1.
25 This 'consensus' definition, as elaborated by Stephen Krasner in his introductory essay
to international regimes, was one of the results of a conference convened to prepare the
1982 special issue of International Organization on international regimes. It has been
widely criticized for its imprecision and the difficulty of distinguishing among its various
components. According to Krasner, principles are beliefs of fact, causation, and
rectitude. Norms are standards of behaviour defined in terms of rights and obligations.
Rules are specific prescriptions or proscriptions for action. Decision-making procedures
are prevailing practices for making and implementing collective choice. See
Hasenclever, Mayer & Rittberger, InternationalRegimes, supra note 23 at 8.
26 See Young, "Productive Friction", supra note 21 at 2. This difference is also closely
linked to the difficult historical relationship between international relations and
international law scholarship. See, for instance, John H Currie, Craig Forcese & Valerie
Oosterveld, InternationalLaw: Doctrine, Practiceand Theory (Toronto, Canada: Irwin Law,
2007) 29-38, who describe a tense relationship stemming from the questioning by
international relations scholars (particularly those of the realist and non-realist school)
of the relevance of international law to international affairs.
27 See, for instance, Susan Strange, "Cave! Hic Dragones: A Critique of Regime
Analysis",
(1982) 36:2 Intl Organization, at 484-485, who argues that the problem with such
woolly words like regimes is that, where they do not actually mislead and misrepresent,
they only serve to disorient and confuse. See also Oran Young, InternationalCooperation:
Building Regimes for Natural Resources and the Environment (New York: Cornell University
2016] Addressing Biopiracy 241
Press, 1989) at 9, who notes that critics have reasonably questioned whether the concept
of regimes is 'anything but a woolly notion likely to produce more confusion than
illumination'.
28 See generally Beth A Simmons & Richard H Steinberg, eds, International Law and
InternationalRelations (Cambridge University Press: 2006, UK), which covers a broad
range of topics, authored by law practitioners as well as political scientists, dealing with
international regimes, within the specific context of the interaction of international law
and international relations. See also, Margaret A Young, ed, Regime Interaction in
InternationalLaw: Facing Fragmentation(New York: Cambridge University Press, 2012).
29 See Young, "Productive Friction", supra note 21 at 1.
30 Ibid.
31 See Hasenclever, Mayer & Rittberger, supra note 23 at 60.
32 See Hasenclever, Mayer & Rittberger, ibid at 60, who note that little attention has
surprisingly been paid to the concept of issue area by students of international relations
despite its centrality to the regime concept.
3 See Manfred Efinger & Michael Zurn, "Explaining Conflict Management in East-West
Relations: A Quantitative Test of Problem-Structural Typologies", in Volker Rittberger,
242 Asper Review [Vol. XVI
highlights the political nature of the circumscription of issue areas given its
reliance on actors' perceptions, as well as emphasizes the conflictual nature
of issue areas. 34
The perception-dependency of issue-areas deserves to be stressed: it has the
important implication that issue-areas can change without any corresponding
change taking place in the objective facts to which policymakers are responding.
Moreover, analysis is complicated by the fact that perceptions of actors as to which
issues are indeed 'inseparably connected' can diverge: typically the formation of an
issue-area is itself a highly political process.
39
What then these three megadiverse country views point to is an
expectation that the implementation of the Nagoya Protocolwill significantly
assist their respective governments in the quest to prevent the continued
theft, misappropriation or misuse of TKaGRs and GRs from within their
respective territories. These concerns, as expressed, are generally subsumed
within the biopiracy rhetoric. Therefore, from the perspective of several
developing countries, the Nagoya Protocol is a central instrument for
addressing biopiracy. In other words, the eradication of biopiracy represents
an underlying expectation of benefit sharing arrangements within the
concluded text of the Nagoya Protocol and, by extension, the ABS regime.
This implies that beyond explicit primary regime objectives, regime
signatories could yet approach the implementation of specific regimes for
the fulfilment of ancillary objectives. Indeed, the ability to address these
ancillary objectives could serve to determine - negatively or positively - the
potential effectiveness of the said regime. Understanding biopiracy as an
ancillary Third World objective of the ABS regime assists with an
understanding of the ABS regime and its implementation from the
perspective of the developing world.
Characterizing biopiracy as the central aim of the Nagoya Protocol
based on an ancillary interpretation may admittedly seem simplistic,
especially given that the express objective of the Nagoya Protocol, as noted
earlier, relates to the fair and equitable sharing of benefits, aimed at
ensuring the conservation and sustainable use of biodiversity. In making
this characterization, I however wish to focus on biopiracy as an implicit issue
area of global governance. In reality, as explained above, the definition of
regime issue areas is based primarily on the perceptions of actors within
regimes and thus constitutes a largely political issue. Andrew Lang, through
an analysis of the international trade regime, argues that each international
regime contains "principles of vision - the particular implicit frameworks
of visibility and invisibility.. .which reflect the politics of the regime above
and beyond the regime's expressed mandate."4 0 This suggests that beyond
an express regime mandate, the politics of the regime could actually devolve
on ancillary objectives. As evidenced above, several developing countries
have consistently referenced the issue of biopiracy in expressing their hopes
and expectations for the implementation of the Nagoya Protocol. In other
words, in adopting Andrew Lang's analysis, Third World actors consider
the issue of biopiracy to be an implicit 'principle of vision' underlying the
express objective of the ABS regime." Consequently, while some countries
like the United States have struggled to even acknowledge the existence of
a phenomenon called biopiracy,1 2 Third World countries have placed the
eradication of biopiracy as a core justification underlying the very existence
of the Nagoya Protocol's international ABS regime.
Does this then suggest an 'issue' shift in the core rationale of the ABS
regime? Absolutely not. The ABS regime, founded on the principle of
benefit sharing and aimed at conserving and using biodiversity in a
sustainable way, remains an intact shared regime objective by all its
signatories. However, while developed countries have sought to clarify the
rules for access to GRs and TKaGRs, thus promoting legal certainty for
research and investment through such a regime, Third World countries
have sought to reclaim a terrain of exploitation, by which token their
sovereign rights over their resources have often been compromised. In
reasserting the rights over resources located within their territories, the
A. Biopiracy
Biopiracy is the result of a commercial/non-commercial drive to utilize
the IP system to acquire rights over inventions based on GRs and/or its
associated TK, without complying with existing legal obligations, national
or international, governing the acquisition and use of such resources.
Principally, the regulations governing the acquisition and use of GRs and
TKaGRs are contained within the access and benefit sharing (ABS)
framework, which, at the international level, is comprised of the Nagoya
Protocol, the CBD, the ITPGRFA, the Bonn Guidelines, and other
complementary instruments. Not only do international regulations govern
the use of GRs, but importantly, the domestic regulations of States form a
core component of such regulations governing the acquisition and use of
resources. Evading such regulations, while yet securing legitimate IP rights
over inventions based on GRs and TKaGRs, lies at the heart of biopiracy's
conceptualization. As a first step in discussing biopiracy, I will turn first to
offer an introductory discussion on TKaGRs - the subject of appropriation
on which I primarily focus in this paper.
for instance, the broad concept of TK is broken down into three main
aspects: TK as such, traditional cultural expressions (TCEs) and genetic
resources (GRs). According to WIPO, these categorizations are important
for policy development and scholarship in the field of IP as the various
categories raise distinct issues which require distinct solutions.59 A
discussion of TCEs for this reason falls outside the scope of this paper. 60
Rather, drawing from the Nagoya Protocol, elements of TK and GRs are
merged to describe a subset of TK referred to as 'TK associated with GRs'
(TKaGRs).6
i. Genetic Resources
GRs are "biological resources". The importance of biological resources
cannot be overstated. "Forty percent of the world's economy depends
directly or indirectly on biological resources... The rural poor especially
depend on biological resources for up to 90 percent of their daily needs",
with natural goods and services provided by biodiversity being a key source
of food, water, shelter, incomes and livelihoods or billions of people
globally. 63 GRs are thus a valuable component of human livelihood and
existence. Within the CBD, GRs are defined as genetic material of actual or
potential value.6 ' They are living components of plant, animal or
microorganism species that possess functional units of heredity (genes).
GRs are a potential source of income for biodiversity rich communities as
well as biotechnology industries which rely on GRs as a major source of
input for research into the development of a wide range of health,
agricultural and cosmetic products. The consistent interaction and
dependence of indigenous peoples on their environments offers them
unique insight into the special properties and characteristics of GRs which
occur within their domain. This knowledge provides useful pointers and
leads for industry R&D and, as such, is an important resource which has
been the subject of bioprospecting and biopiracy.
The association of TK with genetic resources (GRs) underscores the
close relationship, often described as inseparable, of indigenous peoples
with their environments. Furthermore, it points to the unique knowledge
that indigenous peoples have developed over time regarding the properties
and uses of GRs. This relationship is recognized as being important for the
conservation of biodiversity, the sustainable use of its components, and for
the sustainable livelihood of indigenous communities that depend on
them. 66 Highlighting the inseparability of TK and GRs in the articulation
of TKaGRs, several authors and policy makers have viewed GRs as
<http://www.ictsd.org/bridges-news/biores/news/navigating-nagoya-will-cbd-cop-10-
deliver-an-abs-protocol>.
64 See CBD, supra note 6, art 2. Furthermore, the preamble to the CBD recognises
biodiversity as possessing high intrinsic value and identifies the ecological, genetic,
social, economic, scientific, educational, cultural, recreational and aesthetic value of its
components (including GRs). See CBD, ibid, preamble at para 1. CBD, ibid, art 2 defines
genetic material to mean any material of plant, animal, microbial or other origin
containing functional units of heredity.
65 See Thomas Greiber, Sonia Pena Moreno, Mattias Ahren, Jimena Nieto Carrasco,
Evanson Chege Kamau, Jorge Cabrera Medaglia, Maria Julia Oliva & Frederic Perron-
Welch in cooperation with Natasha Ali & China Williams, An Explanatory Guide to the
Nagoya Protocol on Access and Benefit Sharing (Gland, Switzerland: IUCN, 2012) 71-72
[Greiber et al, An Explanatory Guide to the Nagoya Protocol], noting that functional units
of heredity refer to genes - a segment of deoxyribonucleic acid (DNA) that is responsible
for the physical and inheritable characteristics or phenotype of any living entity
66 See Nagoya Protocol, supra note 4, Preamble at para 22, noting, inter alia, the
interrelationship between GRs and TK and their inseparable nature for indigenous and
local communities. See also CBD, supra note 6, Preamble at para 12.
252 Asper Review [Vol. XVI
67 See, for instance, Protection of Biodiversity and Traditional Knowledge - The Indian
Experience: Submission by India, WT/CTE/W/156; IP/C/W/198, WTOOR, 2000
[The Indian Experience] at para 2. Geertrui Overwalle "Holder and User Perspectives
in the Traditional Knowledge Debate: A European View" in Charles McManis, ed,
Biodiversity and the Law: Intellectual Property, Biotechnology and TraditionalKnowledge (UK:
Earthscan, 2007) 357, for instance, categorizes TK under two broad headings; tangible
and intangible components. The tangible components are the GRs, the intangible
aspects are subdivided into Traditional Medical knowledge (TMK), Traditional
Ecological Knowledge (TEK) and Traditional Agricultural Knowledge (TAK). See,
however, Zamudio et al, who contend that, contrary to the legal definitions of the CBD,
GRs are not tangible material. They are rather intangible, coded information - a fact
well understood by scientists but less so by politicians. Teodora Zamudio, Joseph Vogel
& Muller Ruiz, "Logic Should Prevail: A New Conceptual and Operational Framework
for an International Regime of Access to Genetic Resources" Research Document;
Initiative for the Prevention of Biopiracy (2010) cited in Ruiz, "Shared Traditional
Knowledge", supra note 1 at 20 (note 3).
68 See Overwalle, "Holder and User Perspectives", supra note 67, at 357. See also Charles
McManis, "Biodiversity, Biotechnology & Traditional Knowledge Protection: Law,
Science & Practice" in Charles McManis, ed., Biodiversity & th Law: Intellectual Property,
Biotechnology & Traditional Knowledge (UK: Earthscan, 2007) at 4, who, by contrast
identifies TAK and TMK as the two categories of TK related to GRs.
2016] Addressing Biopiracy 253
Traditional Knowledge
69 Further subcategories of GRs could be mentioned, such as, plant GRs, animal
GRs,
and even human GRs. In line with the scope of the Nagoya Protocol, however, its use is
aimed at capturing the scope of GRs as covered by the Nagoya Protocol - i.e. GRs within
the scope of Article 15 of the CBD. See Nagoya Protocol, supra note 4, art 3.
70 See, Document WIPO/GRTKF/IC/30/4, "Consolidated Document Relating to
Intellectual Property and Genetic Resources", annex at 2.
254 Asper Review [Vol. XVI
for compensation from developing country consumers for goods and services
74
incorporating the exploited knowledge.
7 David Castle & Richard Gold, "Traditional Knowledge & Benefit Sharing: From
Compensation to Transaction" in Peter WB Phillips & Chika B Onwuekwe, eds.
Accessing & Sharing the Benefits of the Genomics Revolution (The Netherlands:
Springer, 2007) at 67.
7 These two examples were slightly modified and have simply been adapted for use here.
The originals are found in Paul Heald, 'The Rhetoric of Biopiracy' (2003) 11 Cardozo
J Intl & Comp L 519 at 520-521.
76 Kate and Laird note that the world's biodiversity is distributed largely in inverse
256 Asper Review [Vol. XVI
proportion to scientific and technological capacity. Kate Ten Kerry & Sarah Laird,
"Biodiversity and Business: Coming to Terms with the Grand Bargain" (2000) 76 Intl
Affairs 241 at 241, quoting C Macilwain, "When rhetoric hits reality in debate on
bioprospecting" (1998) Nature 392 at 535-41.
7 For a review of biopiracy cases, including an overview of their peculiar categorizations,
see generally, Daniel F Robinson, Confronting Biopiracy: Challenges, Cases and
InternationalDebates (UK: Earthscan, 2010).
78 Based on a review of existing definitions of biopiracy in the literature, a broad scope of
scenarios and activities could potentially qualify as biopiracy. Two main definitional
approaches are noticeable, which I categorize along 'restrictive' and 'inclusive' lines.
The inclusive approach tends to label practically all acts of unpermitted appropriation
of GRs and/or TK (with inequitable, or without any form of compensation being
returned to the providing country) as biopiracy. In this category, the parameters for an
alleged biopiratical act is generally linked to the perception of injustice arising from
appropriative acts. The restrictive approach however includes those definitions which
involve a strict linkage between the violation of ABS obligations and the IP system. The
acquisition of patents usually provides a symbol of the unjust appropriation.
79 Though there is no agreed definition of the terms "misappropriation" and "misuse" of
GRs, misappropriation is linked to the acquisition of GRs in violation of domestic ABS
legislation requiring prior informed consent (PIC) and mutually agreed terms (MATs)
2016] Addressing Biopiracy 257
and may be understood as the unlawful appropriation of GRs. Misuse, on the other
hand, arises out of contractual obligations and indicates the situations in which GRs
are used in violation of MAT that were set up between the provider and the user i.e.
the utilization of GRs in a non-agreed way, without sharing any benefits. See Greiber et
al, An Explanatory Guide to the Nagoya Protocol, supra note 65 at 12.
80 Highlighting this predatory nature of biopiracy, see, for instance, Mgbeoji, who
describes biopiracy as the asymmetrical and unrequited movement of plants from the
South to the North through the processes of international institutions and the patent
system. See Ikechi Mgbeoji, Global Biopiracy: Patents, Plants and Indigenous Knowledge
(Vancouver: UBC Press, 2006) at 13.
81 Ibid.
82 Philip Schuler, "Biopiracy and Commercialization of Ethnobotanical Knowledge",
supra note 73.
83 Often described as the discoverer of the New World, Christopher Columbus was an
Italian-born navigator and explorer, who sailed the world in the service of Spain. He
was granted by the Queen Isabel and Kind Ferdinand of Spain, the privileges of
'discovery and conquest'. Vandana Shiva, Biopiracy: The Plunder of Nature and Knowledge
(South End Press: 1997, Boston, Massachusetts) 1-5. See also, Mgbeoji, supra note 80
at 96, noting that "for historical convenience rather than exactitude, the origins of the
appropriation of plants may be traced to the 'Columbian Exchange' of 1492, when
Christopher Columbus's forays into the Americas with some plant germplasm marked
258 Asper Review [Vol. XVI
same to Europe were the first instances of biopiracy. In this early exchange,
the appropriation of resources was seen as a natural right of the colonizer,
and was fueled by a sense of entitlement by the European colonialists over
the earth, its peoples and resources." The idea that GRs were part of the
common heritage of mankind overtime served to justify this continued
exchange with GRs being viewed as global resources which were freely
available and to which no country could claim exclusive rights." This
historical element of biopiracy reflects biopiracy as an international
problem involving the expropriation of resources across jurisdictional
borders. In this context, the trans-border nature of biopiracy - as a problem
which transcends single state borders and which requires solutions that
effectively monitor the trans-border appropriation of resources - is
observable.
87 This was by Mr. Pat Mooney of the Canadian NGO, Rural Advancement Foundation
International (RAFI), now known as the ETC Group. See Robinson, supra note 77 at
14.
88 CBD, supra note 6, art 15.1.
89 See World Trade Organization, Understanding the WTO: Basics - The Uruguay
Round,
online: WTO -<https://www.wto.org/english/thewto-e/whatis-e/tif e/fact5_e.htm>.
Essentially, therefore, as Watal notes, the TRIPS Agreement is the result of seven years
of negotiation; September 1986 to December 1993. See Jayashree Watal, Intellectual
Property Rights in the WTO & Developing Countries (The Netherlands: Kluwer Law
International, 2001) at 11.
90 Graeme B Dinwoodie, "The International Intellectual Property System:
Treaties,
Norms, National Courts, & Private Ordering" in Daniel Gervais, ed, Intellectual
Property, Trade & Development: Strategies to Optimize Economic Development in a TRIPS-Plus
Era (New York: Oxford University Press, 2007) at 77, online:
-<https://papers.ssrn.com/sol3/papers.cfm?abstractid=1306608>.
2016] Addressing Biopiracy 261
The Nagoya Protocol was adopted in 2010 and entered into force in
2014. Its adoption brought to a close a sustained and intensive six years of
negotiation by the Parties to the CBD for an international regime on access
and benefit sharing. The Nagoya Protocol was negotiated in direct response
to the call by the World Summit on Sustainable Development (WSSD) to
negotiate within the framework of the CBD, bearing in mind the Bonn
Guidelines, an international regime which would promote and safeguard the
"fair and equitable sharing of benefits arising from use of [GRs]".9' As a
direct consequence of this call, the CBD mandated the Ad Hoc Open-ended
Working Group on Access and Benefit Sharing to negotiate and elaborate
93 Robinson describes biopiracy as a "discursive tool that both describes an injustice and
is used for political leverage". Daniel Robinson, "Biopiracy and the Innovations of
Indigenous Peoples and Local Communities" in Peter Drahos & Susy Frankel, eds,
Indigenous People's Innovation: Intellectual Property Pathways to Development (Canberra:
ANU E Press, 2012) at 78.
94 Ibid. Robinson contends that the biopiracy discourse has emerged as a powerful counter
to the perception of new hegemonies imposed by IP rules with global reach such as the
TRIPS Agreement.
95 This call was contained in the Johannesburg Plan of Implementation; see Report of the
World Summit on Sustainable Development, Johannesburg, South Africa, 26 August
- 4 September 2002, ch I, Resolution 1, Annex, para 44, online:
-<www.unmillenniumproject.org/documents/131302_wssdreport-reissued.pdf>.
2016] Addressing Biopiracy 263
Genetic Resources for Food and Agriculture (ITPGRFA) and the Bonn
Guidelines. 0 2The international regime was opened for signature between
February 2, 2011, and February 1, 2012,103 a period within which it amassed
a total of 92 signatures.1 04 It entered into force on October 12, 2014, which
was the ninetieth day after the deposit of the fiftieth instrument of
ratification/accession.1 05 As of May 1, 2017, , a total of 95 ratifications have
been received for the Nagoya Protocol.'
the Nagoya Protocol could be viewed as the core international ABS law
upon which the ABS regime is anchored.
It is particularly significant that, as part of the terms of reference for the
negotiation of the international ABS regime, it was stipulated that this
international regime could consist of one or more instruments within a set
of principles, norms, rules and decision making procedures. 08 Bearing in
mind that regimes are social institutions which unite actors and/or
participants towards common objective(s) with respect to specific
international issue-area(s),1 09 the significance of the open-ended terms of
reference draws from the diversity of the instruments which are mentioned
as forming part of the regime. It also offers a basis for determining further
instruments which could possibly be a part of the regime.
1os See Decision VII/19 D, Annex (b). This decision's base requirement (principles,
norm,
rules and decision making procedures) draws directly from Krasner's regime definition
earlier stated. See Bavikatte, supra note 16.
109 See Friedrich V Kratochwil & John Gerard Ruggie, "International Organization: A
State of the Art on an Art of the State" (1986) 40 Intl Organization 753 at 764.
110 The Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the
Benefits arising out of their Utilization, 19 April 2002 [Bonn Guidelines], were adopted
pursuant to Decision VI/24 (2002) at the Sixth Session of the Conference of the Parties
to the CBD (COP-6) held in The Hague. Its designation as 'Bonn Guidelines',was derived
from the location of the intergovernmental meeting which held in Bonn, Germany in
October 2001 and which prepared the first draft of the eventual agreement.
... See para 6, Decision VI/24 A, and para 7, preamble to Decision VII/19 D,
UNEP/CBD/COP/DEC/VII/19, at 4. This evolutionary approach to the Guidelines
which forms one of its central features, envisaged a review, revision and improvement
of the Guidelines based on experience from ABS. See I.A.7(f) of the Bonn Guidelines.
266 Asper Review [Vol. XVI
the Bonn Guidelines."2 However, this idea had been jettisoned at the time in
favour of a set of guidelines which set forth broad principles within which
varying national approaches to the ABS challenge could be pursued." 3 The
Bonn Guidelines were therefore negotiated as an alternative to a binding
regime as the majority consensus within the negotiations had been that ABS
was an issue more contingent on national regulation than on international
regulation."' The Bonn Guidelines were thus designed to serve as voluntary
non-binding inputs to national efforts to develop and draft legislative,
administrative or policy measures relating to ABS."' Importantly, the
Parties were of the view that the Bonn Guidelines merely represented a useful
first step of an evolutionary process in implementing the ABS provisions of
the CBD."' Further developments to the Bonn Guidelines, arising from
experience gained in the implementation of ABS provisions, were
consequently envisaged."' If anything, the Bonn Guidelines were therefore
an international experiment in operationalizing the ABS principles of the
CBD, given the limited experience available to negotiators and the
international community in developing and implementing ABS provisions.
112 It had, for instance been discussed at the COP 4, where it was decided to set up an
expert group on ABS which could discuss all the options for ABS arrangements (see
CBD Decision IV/8). Further, it was discussed at two meetings of the CBD's Panel of
Experts on ABS in San Jose, Costa Rica (October 1999) and Montreal, Canada (March
2001). The discussion also took place within the CBD's Scientific Body on Technology
and Technological Advice (SBTTA) as well as in the final deliberations at COP-6 where
the Bonn Guidelines were formally adopted. W Bradnee Chambers, "WSSD and an
International Regime on Access and Benefit Sharing: Is a Protocol the Appropriate
Legal Instrument?" (2003) 12:3 Rev European Community & Intl Environmental L
310.
113 Ibid.
114 Ibid.
115 See COP 6 Decision VI/24 at para 4; see also Bonn Guidelines, I.A.1. See also Evanson
Chege Kamau, Bevis Fedder & Gerd Winter, "The Nagoya Protocol on Access to
Genetic Resources and Benefit Sharing: What is New and what are the Implications for
Provider and User Countries and the Scientific Community?" (2010) 6:3 L
Environment & Development J 246 at 249.
116 See COP 6 Decision VI/24 at para 6. See also, para 8, preamble Cusco Declarationon
Access to Genetic Resources, Traditional Knowledge and Intellectual Property Rights of Like-
Minded Megadiverse Countries, 29 November 2002 [Cusco Declaration].
117 This evolutionary approach to the Guidelines forms one of its central features. This
approach envisaged a review, revision and improvement of the Guidelines based on
experience from ABS. See Bonn Guidelines, supra note 110, art I.A.7(f.
2016] Addressing Biopiracy 267
Both of these instruments (CBD and the Bonn Guidelines) have not,
however, enjoyed a successful implementation for differing reasons. While
the CBD has often been cited as hard law characterized by a soft nature,
evidenced by its lack of an effective enforcement mechanism," 8 the weak
implementation of the Bonn Guidelines has generally been attributed to the
voluntary nature of its undertakings."' Addressing the weaknesses of these
prior instruments, the Nagoya Protocol is drafted in conformity with the Bonn
Guidelines, albeit with binding obligations, and is expected to further aid the
implementation of the CBD, with a specific emphasis on its benefit sharing
objective. While the complementary relationship between the CBD, the
Nagoya Protocol and the Bonn Guidelines within the context of the
international regime on ABS is clear, the ITPGRFA offers an interesting
dynamic, especially because, as an instrument, it was negotiated on another
platform and its benefit sharing structure slightly differs from that
obtainable under the CBD.
The ITPGRFA was negotiated within the framework of the Food and
Agriculture Organization of the United Nations. Similarly to the above
mentioned instruments, it pursues the objective of fair and equitable
sharing of benefits arising out of the use of GRs, albeit with a focus on a
specialized category of GRs - plant GRs relevant for food and agriculture
(PGRFA).1 20 It seeks to ensure the conservation and sustainable use' 2 ' of
PGRFAs, and pursues its objectives through a harmonization and close
linkage with the CBD. 22 Despite the ITPGRFA being mentioned as
constituting a part of the ABS regime, it is worth noting that it adopts a
substantially different approach to benefit sharing from that obtainable
"1 This has been attributed to its strict natured provisions which use mandatory language
to describe obligations of Parties, yet fail to accompany such mandatory obligations with
requisite enforcement measures in case of breaches. See Stuart Harrop R, "Living in
Harmony with Nature? Outcomes of the 2010 Nagoya Conference of the Convention
on Biological Diversity" (2011) 23 J Environmental L 117-128.
119 Hamdallah Zedan, "Patents and Biopiracy: The Search for Appropriate Policy and Legal
Responses" (2005) 12 Brown J World Affairs 195-196.
120 See International Treaty on Plant Genetic Resources for Food and Agriculture, 2001, [no
UNTS Volume Number has yet been determined for this record] {entered into force 29
June 2004), art 1.1, online: FAO
<ftp://ftp.fao.org/docrep/fao/0 11/i05 10e/i05 10e.pdf> [ITPGRFA].
121 Ibid.
122 See ibid, art 1.2.
268 Asper Review [Vol. XVI
132 The Conference of the Parties Serving as the Meeting of the Parties to the Nagoya
Protocol (COP/MOP), serves as the meeting of the Parties to the Nagoya Protocol. It is
the institutional arm which makes decisions and keeps under review the
implementation of the Nagoya Protocol. See Nagoya Protocol, supra note 4, art 26.
133 Nagoya Protocol, supra note 4, art 26.4.
134 See ibid, art 31.
135 COP 10 Decision X/1 1.6
2016] Addressing Biopiracy 271
136 According to Simon West, a textured interpretation of the Nagoya Protocol requires its
interpretation within the context of the broader political economy of IP. This, he
argues, is because the Nagoya Protocol is imbued with obligations which are subservient
to the IP system, thus leaving its beneficiaries in a state of dependence on the IP system
for the actuation of their rights. Simon West, "Institutionalized Exclusion: The Political
Economy of Benefit Sharing and Intellectual Property" (2012) 8 Law Envt & Dev J 21
at 21.
137 Ibid.
272 Asper Review [Vol. XVI
142 Seeking to clarify the import of this phase, the then WIPO Director General, Dr. Idris,
confirmed, in response to the Delegation of Pakistan, that the phase is principally aimed
at arriving at an international legal instrument. See WO/GA/38/20, paras 233-34.
143 See Document WIPO/GRTKF/IC/29/4, Policy Objectives, at 6.
144 A proposal for the Terms of Reference for the Study by the WIPO Secretariat on
274 Asper Review [Vol. XVI
factual studies (including the time required to undertake such studies) with
the progress of the Committee is addressed by mandating that studies and
examples should not serve to delay or establish preconditions for the
negotiations. 145
Another important aspect of the Committee's work relates to its efforts
with respect to defensive protection strategies for GRs. Defensive protection
of GRs involves the development of measures which prevent the grant of
patents over GRs which do not fulfill the requirements of novelty and non-
obviousness. This defensive consideration is a shared objective by both
developed and developing countries. Developed countries have an interest
in ensuring that patents are only issued to innovators in line with the
patentability criteria, thus preserving the integrity of the system. On the
other hand, developing countries seek a defensive solution to biopiracy as a
lot of biopiracy cases have actually arisen due to the grant of patents over
inventions based on TKaGRs and GRs which form part of the ancient
traditions and cultures of such developing countries. India, for instance, has
had to contend with a number of biopiracy cases, prominent ones of which
include the controversies surrounding the erroneous patents granted on the
neem tree,' 4 6 the basmati rice plant, 4 7 as well as the turmeric plant, 4 1 to
name but a few. Thailand has had to contend with erroneous patents
Measures Related to the Avoidance of the Erroneous Grant of Patents and Compliance
with Existing Access and Benefit Sharing Systems submitted by the Delegations of
Canada, Japan, Norway, the Republic of Korea, the Russian Federation and the United
States of America remains on the floor of the Committee. See Document
WIPO/GRTKF/IC/30/8/.
145 See World Intellectual Property Organanzation, "Matters Concerning the
Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore", (2015), at para (d), online: WIPO
<www.wipo.int/export/sites/www/tk/en/igc/pdf/igc mandate 1617.pdf>.
146 For a discussion and analysis of the neem tree controversy, see generally,
Emily Marden,
"The Neem Tree Patent: International Conflict over the Commodification of Life"
(1999) 22 B C Intl & Comp L Rev 279-295. See also Shubha Ghosh, "Globalization,
Patents, and Traditional Knowledge" (2003-2004) 17 Colum J Asian L 73 at 106-108.
147 See Sumathi Subbiah, "Reaping What They Sow: The Basmati Rice Controversy and
Strategies For Protecting Traditional Knowledge" (2004) 27 BC Intl & Comp L Rev
529. See also Ghosh, "Globalization, Patents, and Traditional Knowledge", supra note
146 at 97-102. Again, see Robinson, Confronting Biopiracy, supra note 77 at 47-49.
148 Philip Schuler, "Biopiracy and Commercialization of Ethnobotanical Knowledge",
supra note 73 at 166-169.
2016] Addressing Biopiracy 275
granted on the Kwao Krua (Puerariamirifica) plant,"' as well as the Plao Noi
plant, another medicinal herb with early local documentation records.150
One of the key suggestions being explored in this regard is the
development of databases which will support patent examiners in their
search of prior art. Of course, this is not a straightforward discussion as it
remains fraught with concerns over accessibility to the database;
implications of system hacks as well as court orders; infrastructure and
capacity to develop and document such databases within developing
countries; and concerns from indigenous groups over the documentation
of aspects of their knowledge, particularly the secret and sacred aspects of
their TK practices. India has taken the lead, and has developed a digital
library for its TK which is accessible to registered patent offices to assist with
their search functions.'' A recent proposal by a group of developed
countries within the WIPO IGC for the development of a TK database
managed centrally by WIPO also continues to be deliberated on.'5 2 It is
worth mentioning here that these two aspects of the work (the normative
and the administrative) are increasingly being considered as being mutually
149 A local herb whose medicinal use was first document in Thai scriptures as far back as
1931. See Robinson, Confronting Biopiracy, supra note 77 at 55-59.
150 See ibid at 63-66.
151 According to the Indian Council for Science and Industrial Research (ICSIR), the
TKDL is a "pioneer initiative of India to prevent misappropriation" inspired by
significant incidents of biopiracy between 1990 and 2000. See Saikat Sen & Raja
Chakraborty, "Traditional Knowledge Digital Library: A Distinctive Approach to
Protect and Promote Indian Indigenous Medicinal Treasure" (2014) 106:10 Current
Science at 1341, who also note that the instances of biopiracy witnessed between 1990
and 2000, particularly patents on the turmeric (No. 5,401504 in 1995), basmatic rice
(No. 5663484 in 1997) by the USPTO, and the neem (No. 436257) by the EPO, led to
the formulation of a collaborative and multi-agency task force to prevent
misappropriation of Indian TK at international patent offices. The TKDL was the
outcome.
152 See the Joint Recommendation on the Use of Databases for the Defensive Protection
of Genetic Resources and Traditional Knowledge associated with Genetic Resources,
submitted by the Delegations of Canada, Japan, the Republic of Korea and the United
States of America in document WIPO/GRTKF/IC/30/7 (first submitted as document
WIPO/GRTKF/IC/23/7 to the Twenty-Third Session of the Committee in February
2013) at para 14. This proposed recommendation acknowledges the complementarity
between the IP system and the CBD, and proposes the use of a one-click database system
for the defensive protection of TKaGRs and GRs. It however notes that the patent
office has no business in ensuring or determining whether inventions which make use
of TKaGRs or GRs are made in compliance with the CBD or not. See para 14.
276 Asper Review [Vol. XVI
V. CONCLUSION
Without a clear end yet in sight for the WIPO negotiations, questions
consequently still remain on the ability the Nagoya Protocol to effectively
address the incidence of biopiracy. The realization of this objective is hinged
on a complementary outcome within the WIPO IGC. In conclusion, four
key reasons drawn from the analysis in this paper are advanced below.
First, there exists an antecedent of weak implementation for
instruments agreed on the platform of the CBD, especially those within the
issue area of the Nagoya Protocol. Prior to the Nagoya Protocol, the CBD and
the Bonn Guidelines were negotiated to address, inter alia, the fair and
equitable sharing of benefits arising from the utilization of TK and GRs.
Neither of these instruments have, however, enjoyed a successful
implementation for differing reasons as noted above. A further instrument,
and indeed an international regime built on these instruments, will likely
arrive at the same fate if the key questions related to the IP system are not
made a part of its elaboration and implementation.
Second is the nature of the issue area to which the Nagoya Protocol is
addressed. As mentioned above, while the stated objective of the Nagoya
Protocol is the fair and equitable sharing of benefits arising from the
utilization of GRs, the underlying subtext to the Nagoya Protocol relates to
the protection of GRs and TK from the increasingly rampant incidence of
biopiracy. It is to this end that the sharing of benefits is aimed and thus
constitutes, from a Third World perspective, the raison d'etre for the Nagoya
Protocol. Indeed, this was the key issue that prompted the call by denandeurs,
most of which were megadiverse developing countries, for an international
regime on ABS. Given that biopiracy has thrived due to the incentives and
overall normative dominance of the global IP system specifically in relation
to the acquisition of rights over the use of TK and GRs, the issues, problems
and solutions relating to biopiracy, cannot be fully understood without an
understanding of the IP system.' 53 This brings into focus the contrasting
norms inherent within the IP system and the ABS system, and the effect of
153 Amanda J Landon, "Bioprospecting and Biopiracy in Latin America: The Case of Maca
in Peru" (2007) Nebraska Anthropologist 64.
2016] Addressing Biopiracy 277