The Convention on Biological Diversity Benefit Sharing Prior Informed Consent and Labeling Requirements

The importance of the above examples notwithstanding, it is another potential incompatibility between an MEA and WTO law which has been attracting the bulk of scholarly attention, namely the overlap among the Convention on Biological Diversity (CBD) and the TRIPS Agreement. Unlike the aforementioned cases, the CBD-TRIPS conflict involves less an incompatibility of particular rules than a general programmatic conflict. The CBD reaffirms "that states have sovereign rights over their own biological resources" (4th preamb-ular) and advocates the equitable sharing of benefits from utilization of genetic resources (Article 1). On the other hand, Article 27 TRIPS seeks to strengthen and harmonize intellectual property rights systems and calls for patent legalization in all technical fields including biotechnology.*

Hence, with its general approach to intellectual property rights, TRIPS contradicts the CBD objective of an equitable distribution of benefits. Bound to this objective, the CBD has established a different type of property rights regime "where national sovereignty is introduced to counterbalance intellectual property rights" [41].* Since patenting is a costly business, multinational corporations can take advantage of the TRIPS approach by securing monopolies over numerous varieties of genetic material, including those which have been developed over generations by indigenous and local communities.

* In light of the abovementioned U.S.—Shrimp report, one might argue that the negotiations on the global climate regime fulfill the WTO's demand for consultations among the affected parties prior to trade-restricting measures. Nevertheless, border cost adjustments are just one among several measures which were taken into consideration by the negotiators. In fact, during Conferences of the Parties to the UNFCCC, member states could not agree about whether trade restrictions were an appropriate tool at all (Werksman 2001:178ff.).

In addition to the scenarios mentioned in the text, there are further possible collisions between the climate change regime and international trade law. Some observers argue that the climate regime, particular the Clean Development Mechanism which aims at stimulating investment flows, can also be considered as an investment regime. Since it conditions such investments, the CDM potentially gets into conflict with international investment rules, e.g., the OECD's Multilateral Agreement on Investment (cf. Werksman and Santoro 2001; Werksman, Baumert, and Dubash, 2003).

* Article 27(1) states that "patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application".

* More precisely, the CBD advocates the transfer of environmentally safe technology, including biotechnology and technologies covered by intellectual property rights on "fair and most favorable terms" (Article 16 [2]). It also calls for the fair and equitable sharing of benefits arising from the utilization of knowledge (Article 8 and 12th preambular) from research and development (Article 15) and from biotechnologies (Article 19). Most remarkably, the CBD even explicitly refers to a potential regime conflict in its Article 16(5), stating that intellectual property rights systems should "not run counter to its [the convention's] objectives".

In fact, such behavior termed as biopiracy or bioprospecting has already taken place to a considerable extent: today, developing countries do not hold more than three per cent of all patents worldwide [42].

Apart from the issue of access and benefit sharing, there is a second potential conflict between CBD and TRIPS which takes place on the level of treaty implementation, namely with regard to the sustainable use of the plant varieties in question. In the long run, the TRIPS-induced property structure might threaten the chief objective of biological diversity itself: patent owners, i.e., mostly multinational corporations of industrialized countries will promote the cultivation of "their" varieties; subsequently, incentives for farmers in developing countries to conserve other species will clearly decrease [42].

As is the case with other MEA-WTO incompatibilities, the incoherence of CBD and TRIPS has so far not led to any legal disputes. Nonetheless, the overlap of both treaties and their subject matters became the subject of several controversies on the level of bureaucracies and negotiating parties. These controversies date back to the founding phases of both regimes which partially, in the early 1990s, took place at parallel timelines. Clearly, both processes of regime genesis exerted mutual impacts on each other, while developing and industrialized countries could score quite differently in the two arenas. Though the CBD had originally been advocated by several OECD countries (including the United States), eventually, its content became strongly influenced by developing countries. On the other hand, the genesis of the TRIPS Agreement in the course of the Uruguay Round was clearly dominated by Western European countries and the United States—with the latter explicitly complaining about the strategy of some developing countries to undermine TRIPS via the biodiversity convention [42,43].

Even after the original negotiations had ended and both documents had entered into force, these disputes have continued until this day within different settings and arenas, generally revolving around the question whether further institutional steps are desirable—either to enhance the robustness of one treaty or to instigate the mutual harmonization of both agreements. Roughly, four theatres of this ongoing conflict can be distinguished: First of all, controversies have taken place on a regime-internal level, that is, within the institutional architecture of both regimes (e.g., in the CBD's Ad Hoc Open-ended Working Group on Access and Benefit-sharing). On the WTO level, the United States— not being a party to the CBD—repeatedly voted against the CBD secretariat's request for observer status during TRIPS conventions [42]. Moreover, parties keep on debating a treaty change in order to include into the TRIPS Agreement a requirement for disclosure of the source of patent-relevant biological resources.*

* For instance, Brazil, India, and further countries with highly diverse biological resources keep pushing for an amendment of the TRIPS Agreement, which would clearly safeguard key CBD objectives. Accordingly the amendment shall allow members to ask patent applicants for disclosure of (a) the country of origin of biological resources or traditional knowledge used in inventions, (b) evidence of prior informed consent by the country of origin, and (c) evidence of fair and equitable appropriate benefit-sharing agreements with the country of origin (cf. Meier-Ewert 2005).

Second, disputes have taken the form of an "arms race" [42,44] of follow-up or side agreements. On the one hand, regional agreements on intellectual property rights (which partially run counter to TRIPS rules) have been adopted by the Andean Community (CAN) and by the Organization of African Unity (OAU) [45].* On the other hand, bilateral "TRIPS plus" agreements between the U.S. or EU and a developing country even exceed TRIPS demands on patent standards.

Third, and apart from such disputes within the extended architecture of both regimes, further negotiating forums have been established—for example, within the UN's Food and Agriculture Organization (FAO) and within the World Intellectual Property Organization (WIPO)—in order to deal with the issues of access to genetic resources, of prior informed consent and of benefit sharing.1 Fourth and finally, the CBD's Cartagena Protocol on Biosafety (BSP) contains rules which collide with several WTO treaties—though in a rather indirect manner.1 For instance, the BSP protects the rights of importing states to be informed about the pending introduction of living modified organisms. On the other side, the GATT, SPS, and TBT safeguard the interests of exporters

* The CAN IPR-regime was established in the name of TRIPS, however, it asks for an amendment of the Agreement's Article 27(3b) in order to account for potential conditions of patentability such as prior informed consent. The OAU Model Law is even more straightforward in its opposition to TRIPS provisions and explicitly requires the permit and the prior informed consent of importing communities. Another type of CBD-endorsing follow-up treaties are bilateral agreements on bioprospecting; the CBD's Ad Hoc Working Group on Access and Benefit Sharing prepared the "Bonn Guidelines" in 2002 in order to include prior informed consent and other principles into such agreements (Rosendal 2003: 13ff.).

1 These new forums and treaties include FAO's International Treaty on Plant Genetic Resources for Food and Agriculture and WIPO'S Intergovernmental Committee on Intellectual Property Rights and Genetic Resources, Traditional Knowledge and Folklore. This is not to state that FAO has only recently played a role in these issues. Quite on the contrary, had it not been for the pharmaceutical sector and its concern about emerging biotechnologies, the "gene wars" might have been left to the non-legally binding FAO documents (Rosendal 2003: 7). As early as 1983, the FAO International Undertaking on Plant Genetic Resources had declared all categories of such resources a common heritage of mankind. Moreover, the 2001 International Treaty on Plant Genetic Resources for food and agriculture explicitly prohibits patenting of material from gene banks in the public domain. However, this recent FAO agreement "will hardly block patenting altogether. Even slight modifications of the germplasm may qualify for patent protection and the isolation and description of any particular gene may still count as an invention" (ibid.:13),

1 "Indirect" refers to the fact that there is no immediate contradiction between rules; instead, a regulation might be relatively vague about concrete measures to be taken, hence possibly inducing a behavior which could run counter o the provisions of other rules of international law. Whereas, for example, the Basel Convention (in the treaty text) or the ICCAT (in a follow-up resolution) explicitly name trade restrictions as sanctions for non-compliers (colliding with the GATT's MFN or NT principles), the BSP does not explicitly permit such measures. In fact, import bans could only be deducted from the protocol's rather indistinct policy recommendations.

through non-discriminatory regulations (e.g., with regard to labeling obligations) [36,16].*

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