Routledge Handbook of Biodiversity and the Law

Charles R. McManis, Burton Ong, Charles R. McManis, Burton Ong

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781315530833
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

This volume provides a reference textbook and comprehensive compilation of multifaceted perspectives on the legal issues arising from the conservation and exploitation of non-human biological resources. Contributors include leading academics, policy-makers and practitioners reviewing a range of socio-legal issues concerning the relationships between humankind and the natural world.

The Routledge Handbook of Biodiversity and the Law includes chapters on fundamental and cutting-edge issues, including discussion of major legal instruments such as the Convention on Biological Diversity and the Nagoya Protocol.

The book is divided into six distinct parts based around the major objectives which have emerged from legal frameworks concerned with protecting biodiversity. Following introductory chapters, Part II examines issues relating to conservation and sustainable use of biodiversity, with Part III focusing on access and benefit-sharing. Part IV discusses legal issues associated with the protection of traditional knowledge, cultural heritage and indigenous human rights. Parts V and VI focus on a selection of intellectual property issues connected to the commercial exploitation of biological resources, and analyse ethical issues, including viewpoints from economic, ethnobotanical, pharmaceutical and other scientific industry perspectives.

Part I

Introduction

1

Biodiversity and the law

Mapping the international legal terrain

Burton Ong

The multi-faceted significance of biological diversity (biodiversity) to the well-being of planet Earth and its inhabitants is reflected in the spectrum of jurisprudence, straddling multiple branches of law, establishing international legal norms relating to the conservation and exploitation of Nature’s biological bounty. These legal frameworks are underpinned by a broad range of objectives relating to how biodiversity ought to be protected, managed and utilized by the myriad of stakeholders – including state governments, local authorities, indigenous communities, scientific and commercial researchers, farmers and agricultural practitioners, as well as the biotechnology industry. Biodiversity law is thus embedded within an international legal eco-system of treaties whose norms are implemented at regional and national levels by countries around the world. This chapter seeks to provide an overview of the principal features of this selection of legal frameworks, explaining their significance in understanding the transnational web of contemporary biodiversity-related issues encountered within the fields of international law, environmental law, trade law and intellectual property law.

The Convention on Biological Diversity: a near-global framework for national biodiversity laws

At the United Nations’ Conference on Environment and Development in 1992 (also known as the “Earth Summit”) in Rio de Janeiro, the Convention on Biological Diversity (CBD)¹ was launched for members of the global community to sign. The CBD, which embodies the global community’s commitment to sustainable development, establishes a broad framework for member states to implement national laws directed at the conservation of biodiversity, the sustainable use of its components, as well as the equitable sharing of the benefits arising from the use of these genetic resources. The CBD came into force on 29 December 1993 with 168 signatory member states. By 2016, 196 parties had ratified the treaty, the United States of America being a notable exception to the near-global reach of the agreement.

The three pillars of the CBD can be found within Articles 8 and 9 (in situ and ex situ conservation), Article 10 (sustainable use of components of biological diversity) and Article 15 (access to genetic resources). The Conservation, Sustainable Use and Access-and-Benefit-Sharing goals of the CBD require its parties to, “as far as possible and as appropriate”, take measures to preserve biodiversity and promote the sustainable use of biological resources within their respective territorial jurisdictions, as well as to “take legislative, administrative or policy measures … 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 utilization of genetic resources with the Contracting Party providing such resources … upon mutually agreed terms” (Article 15(7)).

Administered by a governing body that meets on a biennial basis, the Conference of Parties (COP) comprises government representatives from member states supported by a Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) with specialized expertise that provides recommendations to the COP on various technical aspects to the implementation of the CBD. There are also several “ad hoc open-ended Working Groups” established by the COP to address specific issues within the scope of the CBD, including Access and Benefit-Sharing (ABS) and the protection of traditional knowledge under Article 8(j) of the CBD – under which the parties have agreed to “respect, preserve and maintain knowledge, 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, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices”.

In 2010, the COP introduced a Strategic Plan, including 20 headline targets known as the Aichi Biodiversity Targets, to implement the substantive goals of the CBD between 2011 and 2020.² Parties are expected to develop and implement their own National Biodiversity Strategies and Action Plans³ to set their own country-specific targets and translate five goals into reality within their respective jurisdictions: (a) address the underlying causes of biodiversity loss by mainstreaming biodiversity across government and society; (b) reduce the direct pressures on biodiversity and promote sustainable use; (c) improve the status of biodiversity by safeguarding ecosystems, species and genetic diversity; (d) enhance the benefits to all from biodiversity and ecosystem services; (e) enhance implementation through participatory planning, knowledge management and capacity building.

Regulating biosafety concerns arising from transboundary movements of modified living organisms: the Cartagena Protocol

In response to the dangers posed to biodiversity by genetically modified living organisms, the product of modern biotechnology, the Cartagena Protocol on Biosafety to the Convention on Biodiversity was introduced by the COP as a supplementary agreement to regulate transboundary movements of modified genetic resources.⁴ The Cartagena Protocol entered into force in 2003, establishing an advance informed agreement procedure that enables countries to make informed decisions before agreeing to import modified living organisms – in accordance with the precautionary principle articulated in Principle 15 of the Rio Declaration on Environment and Development – by establishing a Biosafety Clearing-House to facilitate the exchange of information on such organisms. The Cartagena Protocol operates alongside the World Trade Organization’s network of international trade law rules,⁵ with explicit recognition in its preamble that trade and environment agreements should be mutually supportive with a view to achieving sustainable development.

Regulating access to, and benefit-sharing from the utilization of, genetic resources: the Bonn Guidelines and the Nagoya Protocol

The scope of the CBD covers a vast range of subject matter, encompassing both in situ and ex situ biodiversity, as well as their derivatives and by-products. It covers all biological resources containing functional units of heredity, both terrestrial and marine, within the national borders and jurisdiction of all the members of the COP. The subject matter of the CBD also extends beyond biological material – flora and fauna – to encompass “the results of research and development and the benefits”⁶ arising from the use of, as well as the “knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles” (Article 8(j)) associated with these genetic resources. Given the broadly worded nature of the language used in the provisions of the CBD, there is clearly room for divergence between the national laws of individual member states who may, ultimately, interpret their obligations under the treaty in accordance with their respective national policy priorities. Biodiversity-rich parties that are net providers of genetic resources are more likely to implement comprehensive access and benefit-sharing laws that enable them to assert authority over, and to maximize the benefits they can derive from, the exploitation of biological materials within their jurisdictions. Conversely, parties that are net users of genetic resources because of their developed biotechnology industries will be inclined to implement a more facilitative framework that is less onerous to those who seek to benefit from the use of such resources – by developing innovations inspired by or based upon the properties of biological resources, for instance.

The CBD also explicitly recognizes that intellectual property rights may have an impact on the implementation of its objectives – to the extent that patents and other forms of intellectual property involve the assertion of private rights of ownership over biodiversity-generated innovations – and exhorts member states to “cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives” (Article 16(5)). This led to calls for the intellectual property treaties administered by the World Trade Organization (the TRIPS Agreement, in particular) and the World Intellectual Property Organization (WIPO) to be more closely aligned to the access and benefit-sharing goals of the CBD. However, despite numerous efforts by developing countries to introduce CBD-inspired reforms to these multilateral intellectual property treaties, little headway appears to have been made on this front over the last two decades.

In 2002, the Sixth meeting of the parties to the CBD adopted the non-binding Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits,⁷ which explicitly identified various strategies for realizing the benefit-sharing goals of the CBD. These included recognizing IPRs as benefits derived from the utilization of genetic resources which member states could regulate by setting parameters for when such property rights might be granted and exploited. Parties to the CBD were also invited to encourage the disclosure of the country of origin of genetic resources and associated traditional knowledge, utilized to develop patented subject matter, during the patent application process. Such disclosure rules might then be useful in tracking compliance with the CBD’s principles of access to genetic resources being granted after prior informed consent has been given on mutually agreed terms. Similarly, the CBD parties were invited to develop sui generis regimes for the protection of traditional knowledge,⁸ which led to various efforts to develop comprehensive databases of such traditional knowledge that could be utilized by patent authorities as part of the prior art when conducting patent searches and examinations.

These ABS-related facets of the CBD were developed further in the Nagoya Protocol on Access and Benefit-Sharing,⁹ which entered into force in 2014. The Protocol aims to facilitate the sharing of benefits derived from the use of genetic resources covered by the CBD in a fair and equitable manner, establishing a transnational Access and Benefit-Sharing Clearing House (ABS Clearing House) mechanism in furtherance of Article 18 of the CBD. This mechanism enhances the CBD’s ABS framework by providing the contracting parties with a transparent platform for information exchange, thereby supporting their efforts in enforcing and monitoring compliance with their respective national ABS regulations. Users of the ABS Clearing House can upload national records of information on ABS measures, contact information of national authorities and information on permits and their equivalent constituting internationally recognized certificates of compliance. Other noteworthy features of the Nagoya Protocol include an attempt to elaborate upon ABS-related concepts originating from the CBD, including “prior informed consent” (Articles 5, 6 and 7) and “mutually agreed terms” (Article 18), while contracting parties are exhorted to consider the need for a global multilateral benefit-sharing mechanism (Article 10). However, achieving a unitary system of international governance to give effect to the ABS objectives of the Protocol will be challenging because of the complexity of the relationships between the private sector and public sector stakeholders involved, further complicated by the national sovereignty approach underlying the CBD which gives individual states the final authority to determine conditions for access to, and the value of, genetic resources located within their respective jurisdictions (Oberthür et al., 2014).

In addition, the Nagoya Protocol encourages contracting parties to develop and use model contractual clauses to regulate the use of genetic resources and associated traditional knowledge (Article 19), while explicitly identifying joint ownership of intellectual property rights arising from such use as an example of a non-monetary benefit arising from the utilization of such resources that may be shared with their country of origin and local or indigenous stakeholder communities (Article 5 and Annex). The flexibility of the legal language used in the Nagoya Protocol is both its strength and weakness, giving contracting parties some freedom to tailor their national ABS frameworks to meet their jurisdiction-specific priorities but generating uncertainty over how disputes arising from the asymmetries between users and providers of genetic resources will be resolved by each state (Morgera et al., 2014).

The Ramsar Convention: a pioneer intergovernmental network for promoting conservation and sustainable use of wetlands

Formally titled the Convention on Wetlands of International Importance especially as Waterfowl Habitat, this convention was adopted by a handful of nations in 1971 in the city of Ramsar, Iran, giving rise to the oldest of the world’s modern international environmental agreements.¹⁰ Today, 169 states are contracting parties of what is more commonly known as the Convention on Wetlands, or the Ramsar Convention, covering more than 215 million hectares of designated wetlands, and whose purpose is “the conservation and wise use of all wetlands through local, regional and national actions and international cooperation, as a contribution towards achieving sustainable development throughout the world”.¹¹ Wetlands are defined broadly to cover a diverse range of habitats – “areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres” (Article 1.1). Ramsar contracting parties are committed to implementing the “three pillars” of the Convention: (1) designating at least one suitable wetland within their territorial jurisdiction for inclusion into the Convention’s List of Wetlands of International Importance (the “Ramsar List”, which currently exceeds 2200 sites)¹² and ensuring their effective management; (2) ensuring the “wise use” of wetlands within their territories through national land-use planning laws and policies;¹³ and (3) cooperating with other contracting parties on international issues relating to the management of transboundary wetlands, shared water systems and shared species.

The International Treaty on Plant Genetic Resources for Food and Agriculture: a global regime to preserve and protect food crop biodiversity

The Food and Agriculture Organization (FAO) of the United Nations adopted the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) in 2001, establishing a global multilateral system to regulate access to a pool of biological samples extracted from 64 of the planet’s most important food crops.¹⁴ Since coming into force on 29 June 2004, the ITPGFRA has provided a platform for member states – comprising many of the major crop-producing countries around the world, with 141 parties at the end of 2016 – to collectively manage the exploitation of this ex situ repository of genetic resources. Signatory countries which have not ratified the ITPGRFA include the United States of America, Thailand, China, Russia and Mexico.

The ITPGRFA is animated by the spirit of the CBD, applying the CBD’s broad objectives within the specific context of plant genetic resources that are valuable to humankind as food sources. As such, the Treaty articulates the same trinity of goals – conservation, sustainable use and fair and equitable benefit-sharing – emphasizing the importance of being “in harmony with the Convention on Biological Diversity, for sustainable agriculture and food security” and how “[t]‌hese objective...

Table of contents

• Cover
• Half Title
• Endorsement
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Contributors
• Preface
• Part I Introduction
• Part II Conservation and sustainable use of genetic resources
• Part III Access and benefit-sharing
• Part IV Traditional knowledge protection
• Part V Biodiversity and intellectual property protection
• Part VI The ethics, economics and science-policy interface of biodiversity protection
• Index