The Convention on Biological Diversity (1992) is significant in being the first international agreement to establish the sovereign rights of nations over their genetic resources. One of its main objectives is to ensure the fair and equitable sharing of benefits arising from the use of genetic resources. No longer are genetic resources the common heritage of humankind.
Questions that are central to this highly controversial debate are concerned with the ownership of biodiversity; the equitable distribution of benefits derived from the use of biodiversity; and the fair compensation for local and traditional knowledge about biodiversity.
Genetic resources have long been traded across the world and used strategically for political and economic gain. Historically, such resources were regarded as the common heritage of humankind, freely accessible to anyone. But two-third's of the world's biological resources are located in developing countries, and most of the benefits derived from commercialisation of these resources have accrued to industrialized countries that possess the necessary financial and technical capacity to develop them. These asymmetries have led to the "common heritage" concept being fundamentally challenged.
There is a need to ensure compatibility between the World Trade Organization Agreement on Trade Related Aspects of Intellectual Property (TRIPs Agreement) and the United Nations Convention on Biological Diversity. There are serious concerns over the complexities and uncertainties surrounding the current multilateral Intellectual Property Rights (IPRs) regime, and their effects upon plants and animals, on plant variety protection systems, and on food security and agricultural biodiversity. These ambiguities caution against any strengthening of such rights at this time.
The knowledge, cultural traditions, innovations, spirituality and management practices of indigenous peoples, and traditional practices of farmers and other rural communities concerning biodiversity are an essential basis for both sustaining biodiversity and sustaining human life. No patenting should be allowed on any living thing or a product derived from it. This should not prejudice the rights of indigenous peoples, traditional farmers and fishermen to maintain exclusive control over, access to, and use of knowledge, innovations, cultural traditions and management practices concerning biodiversity and the right to just compensation for sharing that knowledge.
The Convention on Biological Diversity recognizes the sovereign rights of countries over their genetic resources, and their authority to determine access conditions, including the sharing of benefits gained. In terms of the Convention, countries are required to facilitate access to genetic resources by other Contracting Parties, and to ensure that any genetic resources acquired are on mutually agreed terms.
Art 27.3 (b) of the Agreement on Trade Related Intellectual Property Rights (TRIPS) requires countries to recognize patents on most products and processes, including pharmaceuticals, genetically modified micro-organisms and microbiological processes. It does not require countries to respect patents on plants or animals, or essential biological processes for the production of plants and animals. In these cases, each country has the discretion to decide whether or not to recognise these patents. (The USA is lobbying to remove this discretion).
India, supported by a number of other developing countries, has expressed concern about possible conflict between the commercial orientation of the TRIPs Agreement and non-commercial traditional knowledge or indigenous rights, and between the TRIPs Agreement and the Biodiversity Convention. Australia and other developed countries rejected the view that there is a conflict between the TRIPs Agreement and the Biodiversity Convention.
Domesticated genetic resources are cultural creations fundamentally originating from indigenous cultures, peasant cultures and farmers' cultures. The collections and the results of research deposited in national or international agricultural research centres, gene banks or otherwise, should not be the object of restrictions, or in any way be considered as intellectual property.
The World Trade Organisation TRIPs (Trade Related Intellectual Property Rights) agreement and unilateral pressures, especially on biodiversity-rich countries, are forcing these countries to adopt new legislations establishing property rights over forms of life with disastrous consequences for biodiversity and food security.
The NGO Vía Campesina rejects intellectual property rights and the patenting of any form of life or of knowledge associated with these genetic resources because it is a threat to biodiversity and results in the legalization of the expropriation of knowledge and resources by industrial companies and transnational corporations. The fact that 95% of food-related patents are concentrated in only 7 countries and a few companies serves as sufficient example.