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Bluebook 20th ed.

Richard G. Tarasofsky, The Relationship between the TRIPs Agreement and the
Convention on Biological Diversity: Towards a Pragmatic Approach, 6 Rev. Eur. Comp. &
Int'l Envtl. L. 148 (1997).

ALWD 6th ed.

Richard G. Tarasofsky, The Relationship between the TRIPs Agreement and the
Convention on Biological Diversity: Towards a Pragmatic Approach, 6 Rev. Eur. Comp. &
Int'l Envtl. L. 148 (1997).

APA 6th ed.

Tarasofsky, R. G. (1997). The relationship between the trips agreement and the
convention on biological diversity: Towards pragmatic approach. Review of European,
Comparative International Environmental Law, 6(2), 148-156.

Chicago 7th ed.

Richard G. Tarasofsky, "The Relationship between the TRIPs Agreement and the
Convention on Biological Diversity: Towards a Pragmatic Approach," Review of
European, Comparative & International Environmental Law 6, no. 2 (1997): 148-156

McGill Guide 9th ed.

Richard G Tarasofsky, "The Relationship between the TRIPs Agreement and the
Convention on Biological Diversity: Towards a Pragmatic Approach" (1997) 6:2 Rev of
European, Comparative & Intl Environmental L 148.

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Tarasofsky, Richard G. "The Relationship between the TRIPs Agreement and the
Convention on Biological Diversity: Towards a Pragmatic Approach." Review of
European, Comparative & International Environmental Law, vol. 6, no. 2, 1997, p.
148-156. HeinOnline.

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Richard G Tarasofsky, 'The Relationship between the TRIPs Agreement and the
Convention on Biological Diversity: Towards a Pragmatic Approach' (1997) 6 Rev Eur
Comp & Int'l Envtl L 148

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TRIPs and the Biodiversity Convention Volume 6 Issue 2 1997

The Relationship Between

the Agreement
and the Convention on,
Biological Diversity.0
Towards a Pragmatic
Approack
Richard G. Tarasofsky

The point of departure here is a fundamental belief in

Introduction the need for strong private property rights, within the
framework of a market economy, in order to promote
That the conservation of biological diversity and the pro- innovation and technological change, particularly in a
tection of intellectual property rights (PRs) are connec- world where technology is becoming increasingly intel-
ted is now well known. Policy-makers, activists, and even lectual rather than material. It is not insignificant that
law-makers have made this connection; in particular, developed countries tend to be better placed than
attention has crystallized around the Convention on Bio- developing countries to undertake the research and
logical Diversity (CBD), and more recently, its relation- development underlying innovation and technological
ship to the Uruguay Round Agreement on Trade-Related change, and thereby enjoy the benefits afforded, inter
Aspects of Intellectual Property Rights (TRIPs).' It would alia, by IPRs.
be an understatement to assert that the exact nature of
this connection is very much the subject of debate; more The CBD, on the other hand, begins from a different per-
accurately, this topic is the subject of considerable rhet- spective and its more ambivalent view towards IPRs is
oric and political controversy. evident in Article 16(5):
The Contracting Parties, recognizing that patents and other intel-
However, in practice the potential problems may be less lectual property rights may have an influence on the implemen-
insurmountable than they appear in abstract. It is with tation of this Convention, shall cooperate in this regard subject
a view towards pragmatism that this article will seek to to national legislation and international law in order to ensure
that such rights are supportive of and do not run counter to
scope out the legal issues involved and survey how ten- its objectives.
sions between the two legal regimes have been dealt
with recently in relevant international fora. The article As will be seen below, this (extremely modest) hint at
will conclude with some thoughts about the way forward the possibility of adjustment of IPR rules reflects, to
in enhancing synergy. some extent, the different nature of the CBD's objectives,
as compared to traditional economic considerations
upon which orthodox views of IPRs are based.
At issue is a philosophical divide over the actual effect
of IPRs. On the one hand is the view articulated in Article
Although not finalized at the time of the CBD's adoption,
7 of the TRIPs Agreement:
chief among the elements of 'international law' referred
The protection and enforcement of intellectual property rights to in Article 16(5) is the TRIPs Agreement. Indeed, Article
should contribute to the promotion of technological innovation 31(3)(c) of the Vienna Convention on the Law of Treaties
and to the transfer and dissemination of technology, to the mut-
ual advantage of producers and users of technological knowl-
requires that Parties to both the CBD and the TRIPs
edge and in a manner conducive to social and economic welfare, Agreement implement each in a manner consistent with
and to a balance of rights and obligations. the other to the extent that there is no actual conflict of
@ Blackwell Publishers Ltd. 1997, 108 Cowley Road, Oxford OX4 1F, UK and 350 Main Street, Malden, MA 02148, USA.

148
Volume 6 Issue 2 1997 TRIPs and the Biodiversity Convention
Volume 6 Issue 2 1997 TRIPs und the Biodiversity Convention

treaties. But as will be seen below, even putting aside tries. At the institutional level, it creates, inter alia, a fin-
legal complexities arising out of relations as between ancial mechanism (now the Global Environment Facility)
Parties and non-parties to one or the other treaty, strict and a Conference of the Parties (COP).
compliance with both legal regimes at the same time will
in some cases be difficult. Areas of Intersection
IPRs do not directly relate to biodiversity conservation.
But they do from part of the economic and social context
The Legal Context: Overview in which conservation takes place. As such, their rel-
of the Two Treaties evance is three-fold. One area of intersection relates to
equity, in the sense of whether IPRs enhance or hinder
The TRIPs Agreement the channelling of 'equitable' economic benefit to the
custodians of biological diversity (e.g., the South in gen-
The purpose of the TRIPs Agreement is to create an
eral, indigenous and local communities in particular)
internationally-agreed minimum, but strong, standard
arising from the conservation and sustainable use of bio-
for IPR protection. It was placed on the international
logical resources. This issue can be examined in relation
trade agenda primarily by industrialized countries, who
to the rules on access to genetic resources and the pro-
perceived significant differences in IPR protection as
tection of knowledge of indigenous and local communi-
barriers to trade, and were concerned about the conse-
ties.
quences of these differences in their ability to make
foreign direct investment and market their products.
Although this initiative had met with resistance from The second issue is also an equitable one, namely the
many developing countries, 2 who preferred to deal with access of all countries, especially developing countries,
these issues in other fora,' the political gap on this has to environmentally-sound technology. Technology trans-
lessened on account of the acceptance by most states fer has become an important component of the package
of the Uruguay Round Agreements through their of measures contained in modern multilateral environ-
accession to membership in the World Trade Organiza- mental agreements; in the CBD, provision for this is
tion. 4 made in Article 16. The question is the extent to which
IPRs help or hinder such transfer.
The TRIPs Agreement establishes a wide-ranging set of
rules, which build on existing international instruments The third general issue lies in the incentive effect of IPRs
on intellectual property. It provides a detailed set of to promote environmentally harmful innovations.
substantive standards for IPRs, including remedies, all Related to this is the difficult question of whether life
of which are grounded in the fundamental GATT 'most forms should be patentable. The challenge from the
favoured nation'6 and 'national treatment" require- CBD's point of view is the extent to which this falls under
ments. The Agreement stipulates procedural require- the requirement of the CBD to regulate processes and
ments, such as those relating to transparency and noti- categories of activities harmful to biological diversity. 1 2
fication. The Agreement also provides for transitional
arrangements for developing countries and some coun- Equitable Benefits
tries with economies in transition, allowing a general
delay in applying the agreement for five years." Insti- Genetic Resources
Responding to the pressures from developing countries,
tutionally, the Agreement creates the WTO Council for
the CBD reaffirms state sovereignty over the natural
Trade-Related Aspects of Intellectual Property Rights,9
resources under their jurisdiction, which include genetic
which monitors compliance and affords WTO members
resources. A complex scheme is created by Article 15 to
a forum for consultation. The TRIPs Council is to review
the implementation of the Agreement five years after the facilitate access to genetic resources 'on mutually
agreed terms' and to provide for the fair and equitable
entry into force of the TRIPs Agreement.o
sharing of benefits arising from use of genetic resources,
also on 'mutually agreed terms'.1 3 CBD's Article 16 parti-
Convention on Biological Diversity cularizes the benefits sharing requirement in relation to
Based on the view that the conservation of biological technology transfer and Article 19 does so in relation to
diversity is a 'common concern of humankind', the biotechnology. As such, the CBD creates a normative
objectives of the CBD are 'the conservation of biological and procedural framework for negotiations between pro-
diversity, the sustainable use of its components and the viders and users of genetic resources aimed at achieving
fair and equitable sharing of the benefits arising out of equitable results, particularly since the classic biopros-
the utilization of genetic resources ... '." The CBD cre- pecting model involves a developing country as the pro-
ates a framework of rules on in situ and ex situ conser- vider of genetic resources and a developed country as
vation at the genetic, species, and ecosystem levels, as the user. It is in the crafting of the benefit sharing
well as establishing procedural requirements, such as arrangements that IPRs play a role.
the elaboration of national biodiversity strategies. The
CBD makes several references to the needs of indigenous The first issue that arises in relation to the TRIPs Agree-
and local communities. It creates new rules relating to ment is a general one: whether the presumption that
access to genetic resources and the sharing of benefits. IPRs will attach to the results of research and develop-
The CBD also has provisions relating to the transfer of ment based on genetic resources affects the bilateral
technology and financial resources to developing coun- bargaining envisaged by the CBD. While, prima facie,
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TRIPs and the Biodiversity Convention Volume 6 Issue 2 1997
TRIPs and the Biodiversity Convention Volume 6 Issue 2 1997

IPRs would seem to strengthen the position of the user ductive or vegetative propagating material). The 1991
of genetic resources by providing it with something to amendments to the UPOV Convention,1 7 which are not
trade in the course of bargaining, this effect has not yet in force, provide that the 'farmer's privilege' is to be sub-
been quantified. It is therefore unclear whether the shar- ject to national discretion by removing the presumption
ing of benefits is any less equitable as a result of the of its existence," but allowing national legislation to pro-
TRIPs Agreement. vide for it. These amendments also confine the 'breed-
er's exception' by introducing the notion of 'essentially
Secondly, it is possible to imagine a convoluted array derived variety', which extends the plant breeder's
of access and benefit sharing arrangements which pose rights to new varieties which include the original geno-
challenges to the 'most-favoured nation' and 'national type.
treatment' requirements of the TRIPs Agreement. One
example would be when, as a result of bargaining, a By not specifying UPOV, however, WTO Members are
source country enters into different arrangements with afforded the opportunity to develop alternative arrange-
different countries, whereby different IPR standards are ments. Parties to the CBD might be interested in taking
agreed for the same end products. Another would be up this opportunity, particularly if they find that the
where a user country enterprise agrees to give up its UPOV scheme creates a harmful reliance on high yield
IPRs in the source country in respect of products using improved strains of crops. One commentator finds that
genetic resources covered under the agreement, but a IPRs in agricultural products creates a bias towards cen-
firm from a third country applies for IPR protection in tralized crop breeding research, which leads to: (a)
the source country for a product based on the same gen- decreased crop diversity, (b) decreased spatial genetic
etic resources. A permutation on this would be the cases diversity, (c) increased temporal genetic diversity, and
where a source country enters into an arrangement with (d) increased use of external inputs." A related point is
a user country enterprise whereby the user country that this trend can displace systems of informal inno-
enterprise gives up its intellectual property rights for vation of plant varieties associated with generations of
end products using genetic resources covered by the monitoring and improving by traditional farmers - a sys-
agreement, but before the user country enterprise tem which tends to foster agricultural biological diver-
20
develops a product from those genetic resources, a firm sity.
in the source country does so and applies for IPR protec-
tion. Prima facie, Parties to both the CBD and TRIPs It is also imaginable that a sui generis system might
Agreement must craft arrangements which comply with develop out of the FAO Global System for Plant Genetic
both treaties.14 But there may be instances where Resources, 2 1 once its international fund is oper-
arrangements will be crafted as between a Party and a ationalized and its concept of 'Farmer's Rights' is given
non-party to one or the other treaty, or where different practical meaning. 22 But it must be recalled that there is
IPR standards will need to be agreed in order to achieve a limit to the flexibility provided for in the TRIPs Agree-
equitable results under the CBD. It is in these cases ment in creating sui generis systems: any such system
where legal problems will occur. must be 'effective', which will likely be interpreted in the
context of the objectives of that treaty, placing the
There is one other specific issues which arises in strength of the private property rights as the central
relation to the use of plant genetic resources to improve point of examination, rather than the conservation of
plant varieties. The TRIPs Agreement makes special pro- biological diversity. It is at this point that conflicts
vision for improved plant varieties. Article 27(3)(b), after between fulfilling the two regimes may arise.
stipulating that plants and animals other than micro-
organisms, and essentially biological processes for the Indigenous and Local Knowledge
production of plants or animals other than non-biologi- Indigenous and local communities are often the custod-
cal and microbiological processes are a patentable sub- ians of biological resources. The profundity of this fact
ject matter, goes on to state that '[h]owever, Members is apparent through the various references to indigenous
shall provide for the protection of plant varieties either and local communities which abound in the CBD. Of
by patents or by an effective sui generis system or any particular importance is Article 10(c), which calls on Par-
combination thereof'. ties, as far as possible and as appropriate, to:

The key issue is what will constitute an acceptable sui Protect and encourage customary use of biological resources in
accordance with traditional cultural practices that are compat-
generis system. What was certainly in the mind of the ible with conservation or sustainable use requirements.
negotiators of the TRIPs Agreement was the 1961 Inter-
national Convention for the Protection of New Varieties A key issue is the extent to which such practices are
of Plants (UPOV Convention), 5 as amended, whose evol- encouraged by the IPRs regime: in other words, do they
ution reflects a tightening of IPRs. 6 The 1978 amend- allow for the holder of such knowledge to exercise con-
ments to the UPOV Convention provide for a 'farmer's trol over it so as to receive compensation for its use by
privilege' (i.e., allowing a farmer who buys a seed to save others? So far this question must be answered in the
what results from its crop for the next season without negative.
being obligated to pay anything additional to the plant
breeder), a 'breeder's exception' (i.e., an entitlement for One reason is that indigenous and local communities
third parties to freely use material from protected var- have difficulty in proving the 'novelty' requirement for
ieties to create new varieties), and a 'plant breeder's patenting innovation, since this knowledge has often
right' (i.e., an IPR for commercial marketing of repro- been in their communities for generations. This
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Volume 6 Issue 2 1997 TRIPs and the Biodiversity Convention
Volume 6 Issue 2 1997 TRIPs und the Biodiversity Convention

extended time factor also works against the granting of spread knowledge of the existence of a new variety is no
IPRs, which grant exclusive property rights over know- bar to a claim. 28
ledge for a much more limited time period. The only
form of IPRs which is not time-bound, namely trade New international law relating to the knowledge of
secrets, may not be applicable because they, like all IPRs indigenous and local communities may develop in the
are based on individual claimants, whereas traditional CBD context, 29 but may also be dealt with in other fora,
knowledge is usually seen as collectively held.2 3 such as the UN Human Rights Commission or a suc-

.
cessor to the Intergovernmental Panel on Forests. It can
The TRIPs Agreement provides no express rights relat- be expected that as rules develop to provide compen-
ing to knowledge of indigenous and local communities. sation to indigenous and local communities for the use
One view is that the entitlement provided in Article 27(2) of their knowledge, the implementation of the CBD will
of the TRIPs Agreement to WTO Members to exclude be affected.
inventions from patentability in cases necessary to pro-
tect 'ordre public or morality', is applicable because' . .. The key question is how any new models derived from
there is a strong argument that for indigenous and tra- the CBD approach will fit into the existing orthodox IPR
ditional peoples, monopoly protection of seeds (in the framework set forth under TRIPs. TRIPs Article 1(1)
form of patents or UPOV breeders rights), genetic allows for Members to provide 'more extensive protec-
material, or even traditional knowledge is not only soci- tion' than is required under the TRIPs Agreement, sub-
ally and economically disruptive, but also immoral'. 24 ject to such protection not contravening the Agreement.
However, it is unclear whether this argument will be It is imaginable that to the extent that the grant of such
acceptable in practice. CBD Article 8() may provide collective rights interferes with individual entitlements
some hope, by requiring that each Party shall, as far as to claim IPR protection, conflicting legal rules may come
possible and as appropriate: into play.
Subject to its national legislation, respect, preserve and maintain
knowledge, innovations and practices of indigenous and local Transfer of Technology
communities embodying traditional lifestyles relevant for the The requirements of the CBD in relation to access to and
conservation and sustainable use of biological diversity and pro-
mote their wider application with the approval and involvement transfer of technology are set forth in Article 16. Article
of the holders of such knowledge, innovations and practices and 16(1) contains the basic undertaking to 'provide and/or
encourage the equitable sharing of the benefits arising from facilitate' access and transfer to other Parties of techno-
the utilization of such knowledge, innovations and practices. logies relevant to conservation, sustainable use, and
It is unclear what the ultimate effect will be of this pro- environmentally-benign use of genetic resources. Article
vision, which is heavily qualified and stipulates the 16(2) applies this undertaking to the transfer of tech-
supremacy of national legislation, in assisting indigenous nology to developing countries, by requiring that this be
and local communities to claim intellectual property pro- subject to 'fair and favourable terms, including on con-
tection for their knowledge. cessional and preferential terms where mutually agreed
. .. '. Recognizing the potential of IPRs to impact on this,
Article 16(2) goes on to state that:
More promising, perhaps, are the efforts underway in
other fora to develop broader notions of intellectual pro- In the case of technology subject to patents and other intellec-
tual property rights, such access and transfer shall be provided
perty rights so as to accommodate the concerns of on terms which recognize and are consistent with the adequate
indigenous and local communities. Examples include the and effective protection of intellectual property rights.
concept of 'traditional resource rights' 25 or rights to pro-
tect folklore traditions. 26 The UN Working on Indigenous Article 16(3) requires the provision of technology, on
Populations adopted, in 1993, the Draft Declaration on mutually agreed terms and including technology pro-
the Rights of Indigenous Peoples, of which Article 29 tected by IPRs, which makes use of genetic resources,
states: to providers of genetic resources. As indicated above,
Article 16(5) makes the suggestion, rather mildly, that
Indigenous peoples are entitled to the recognition of the full own- future co-operation is necessary to ensure that IPRs are
ership, control and protection of their cultural and intellectual
property. They have the right to special measures to control,
supportive of the CBD's objectives. Despite Article 16(2),
develop and protect their sciences, technologies and cultural several developed countries became so concerned about
manifestations, including human and other genetic resources, the possibility that Article 16(5) might be used as an
seeds, medicines, knowledge of the properties of fauna and flora, exemption from TRIPs standards,3 0 that they issued
oral traditions, literatures, designs and visual and performing statements upon signature or ratification of the CBD
arts.
against this view.3 1 But it should be recalled that the
Finally, there are instances where indigenous and local TRIPs Agreement itself recognizes the potential for prob-
communities may be able to take advantage of an exist- lems in this area. Article 8(2) states:
ing IPR regime. One possibility is in the use of trade- Appropriate measures, provided that they are consistent with
marks or geographic indications by communities the provisions of this Agreement, may be needed to prevent the
although these tend to be based on territory of a mem- abuse of intellectual property rights by right holders or the
ber state, whereas some indigenous and local communi- resort to practices which unreasonably restrain trade or
adversely affect the international transfer of technology.
ties transcend state boundaries. 2 7 Another is that Article
6 of the 1991 amendments to the UPOV Agreement might It is unclear what the actual effect of IPRs on the access
allow indigenous and local communities to claim plant to and transfer of technology envisaged in the CBD will
breeder's rights in relation to landraces since wide- be. Indeed, it has been argued that the role of IPRs
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TRIPs and the Biodiversity Convention Volume 6 Issue 2 1997
TRIPs and the Biodiversity Convention Volume 6 Issue 2 1997

should be placed in perspective, since it is likely that in use of monocultures in agriculture,'3 which not only are
most cases other economic or technological factors may linked to genetic erosion, but often rely on ever-increas-
be more important than IPR rules in determining incen- ing use of chemical fertilizers and pesticides. To the
tives or disincentives for technology transfer.3 2 As in the extent that the grant of IPRs are themselves linked with
case of genetic resources described above, it is imagin- the development of monocultures 3 the CBD might call
able that problems relating to the 'most favoured nation' for its regulation; 40 indeed, the open-ended text in Article
and 'national treatment' requirements of the TRIPs 8(l) might justify a regulation of the granting of the IPRs
Agreement, which can occur if the application of Article themselves as a category of activity, although the quali-
16 of the CBD results in differentiated treatment of IPRs fying language in the chapeau of Article 8 may not sup-
to such technology as between Parties and non-parties port this.
or as between foreign nationals and domestic firms.
Another problem might arise in relation to compulsory A related issue is the controversy over patenting of life
licensing of transferred technology, which departs from forms, which may arise in the context of the CBD's pro-
the strict conditions for the issuance of compulsory visions on harmful processes and activities and bio-
licensing provided for in the TRIPs Agreement." The key security.41 As mentioned above, Article 27(3)(b) of the
issue, then, will be how, and in what forum, will the TRIPs Agreement excludes the patentability of plants
'reasonableness' standard referred to in Article 8(2) be and animals, with some notable exceptions, but provides
interpreted and applied. that this is to be reviewed four years after the date of
entry into force of the WTO Agreement. The ethical and
Environmentally-unsound Technologies legal challenges arising from the interaction of the CBD
and TRIPs regimes on this may be expected to become
and Products
more acute and prominent, especially as the technology
The CBD, reflecting an effort to create a holistic and inte- to clone animals develops and the deadline for reviewing
grated framework for biodiversity conservation, not only this provision draws near.
creates substantive standards on conservation per se,
but also addresses threats to biodiversity. Article 7(c)
calls on Parties to identify processes and categories of
activities that have or are likely to have significant
Managing the Interface: Legal
adverse effects on conservation and sustainable use. and Institutional Processes
Once done, Article 8(l) requires Parties, as far as poss-
ible and as appropriate, to regulate or manage such pro- Legal Relationship of the Two Treaties
cesses and categories of activities. The CBD contains International law contains rules addressing the interac-
three other provisions aimed at specific threats, two of tion between two treaty regimes containing rights and
which are of particular relevance to this context: requir- obligations relating to the same subject matter. These
ing (a) the establishment or maintenance of means to rules are to be found in customary international law and
regulate, manage or control the risks associated with the the Vienna Convention on the Law of Treaties. 4 2 In this
use and release of living modified organisms resulting instance, however, the application of these rules does
from biotechnology likely to have adverse environmen- not lead to an optimal situation.
tal impacts and (b) the prevention of the introduction
of, control or eradication of alien species threatening Firstly, the rules are mainly designed to set priorities as
ecosystems, habitats or species. 3 4 between Parties to the same treaties. This means that a
Party to both remains responsible for carrying out obli-
The TRIPs Agreement, too, allows Members to: gations of both in relation to other Parties who are non-
exclude from patentability inventions the prevention within their parties of the other. 4 3 As described above, the results
territory of the commercial exploitation of which is necessary to may be that such a Party will be required to take an
protect ordre public or morality, including to protect human, ani- action to comply with one instrument which is in
mal or plant life or health or to avoid serious prejudice to the violation of the other. Given that both the CBD and the
environment, provided that such exclusion is not made merely
because the exploitation is prohibited by law.
35 WTO Agreements are intended to create universally
applied rules aimed at dealing with matters of global pri-
While there may be some overlap between the two ority, this seems inappropriate, especially since the CBD
instruments, their applicability in practice may differ on contains mostly non-reciprocal obligations aimed at the
account of their different approaches to risk. The CBD common good.
emanates from a precautionary approach,3 1 in contrast
to the TRIPs provision which employs the thresholds of However, even as between Parties to both instruments,
'necessity'37 and speaks of 'serious prejudice to the the international law of treaties is not necessarily helpful
environment'. The last phrase in the provision may also in resolving matters. The Vienna Convention places pri-
militate against the ability of different countries to take ority on the basis of time, so that the treaty later in time
different decisions about these matters, depending on prevails. 44 While this militates in favour of the TRIPs
how these different thresholds are determined and by Agreement, which was adopted one year after the CBD,
whom. the circumstance of a decision by a governing body of
a treaty is not addressed. 4 5 It is also unclear how this
As such, the CBD may require the control of substances prioritization relates to a possibly different prioritization
which may otherwise appear benign. An example arising when applying the lex specialis rule of customary
recently highlighted in the literature is the widespread international law, which holds that a more specific treaty
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Volume 6 Issue 2 1997 TRIPs and the Biodiversity Convention
Volume 6 Issue 2 1997 TRIPs und the Biodiversity Convention

prevails over the more general one. In this case, it may affirm the need for respect for MEAs, as instruments for
be arguable that the CBD rules are more specific, in that pursuing shared goals, and acknowledged technology
they relate to IPRs in a particular context. transfer as an important component of MEAs. The CTE
welcomed the prospect of increased co-ordination
At the same time, there are matters of interpretation of between the WTO and MEA secretariats.
the CBD itself which are relevant. Article 16 references
to international law and intellectual property rights are Interestingly, the North-South divide on Item 1 was to
somewhat vague in their meaning: are they to be inter- some extent reversed on Item 8. Perhaps not surprising,
preted as creating a mandate for changing the TRIPs given the suspicion some developing countries hold for
rules or do they reinforce them? A second issue is to be the TRIPs Agreement, concerns were raised about the
found in Article 22(1), which seems to create a priority TRIPs Agreement from the point of view of compatibility
for the CBD: with the CBD.
The provisions of this Convention shall not affect the rights and
obligations of any Contracting Party deriving from any existing The CTE was not able to come to a resolution on Item
international agreement, except where the exercise of those 8. Views differed on the impact of IPRs on the achieve-
rights and obligations would cause a serious damage or threat ment of the objectives of the CBD, but the discussions
to biological diversity.
were generally characteristic of uncertainty over several
But again the applicability of this provision is unclear in matters. The two matters about which greater certainty
the case of the TRIPs Agreement. Does the phrase 'exis- of views seemed present were in relation to technology
ting' refer only to those international agreements in transfer and knowledge of traditional and local com-
place when the CBD was adopted? Secondly, it is unclear munities.
how the necessary causal links between IPRs and 'seri-
ous' damage or threat to biological diversity are to be Some developed country delegations asserted that
made, and by whom.4 6 strong IPR regimes in developing countries facilitated
the transfer of technology. Scepticism of this assertion
Efforts should be made to minimize actual conflicts of was expressed by some developing country delegations.
treaty obligations, such that conflicts only occur when In this regard, India made several proposals for mod-
they impose obligations which are impossible to comply ifying the rules to: (a) relax TRIPs rules on compulsory
with simultaneously. 47 Since the vast majority of states licensing, (b) extend the environmental exception to pro-
are parties to both instruments, public policy dictates tection of trade secrets and circuit layout designs, (c)
that pragmatic and multilaterally agreed, 'mutually sup- reduce the patent term for environmentally-sound tech-
portive' solutions be found to problematic areas of over- nologies or products, and (d) require the owners of
lap. The rest of this section focuses on institutional environmentally sound technologies and products to sell
efforts in this regard. them 'at fair and most favourable terms and conditions,
upon demand, to any interested party which has an obli-
WTO/CTE gation to adopt these under national law of another
country or under international law'.
Pursuant to the Marrakesh Decision of 14 April 1994,48
the WTO Committee on Trade and Environment (CTE)
As regards traditional and local knowledge, several
was established to make recommendations on the poss-
developing countries expressed concern that IPRs are
ible reform of the multilateral trading system (MTS) in
not broad enough to be a basis for appropriate compen-
order to, inter alia, 'enhance the positive interaction
sation for use of such knowledge. Ultimately, the CTE
between trade and environmental measures, for the pro-
decided that further work is required on Item 8, and
motion of sustainable development .. .'.
called for and exchange of information between the CTE
and the CBD.
The CTE work programme prior to the 1996 Ministerial
49
Meeting in Singapore contained three relevant items.
Item 1 concerned the general relationship between trade CBD COP
measures in multilateral environmental agreements The second meeting of the CBD COP requested a paper
(MEA) and the MTS; related to this, Item 5 concerned the on the synergies and relationships between the CBD and
relationship between dispute settlement mechanisms in the TRIPs Agreement.so The consideration of IPRs at the
MEAs and those in the MTS; and finally Item 8 concerned third meeting of the COP led to the adoption of Decision
the TRIPs Agreement. 111/17 on IPRs, in which the importance of implementing
the CBD and other international law on IPRs in a mutu-
As regards Items 1 and 5, no agreement was reached in ally supportive manner is recognized. The Decision calls
the CTE on the various proposals made, and it was for case studies on the impacts of IPRs to the CBD objec-
agreed that the matter would be kept under review. The tives to be conducted and disseminated, including in
discussions revealed that several Members were least relation to technology transfer, indigenous and local
comfortable with accommodating measures taken pursu- communities, and sui generis systems/approaches or
ant to MEAs that were not specified directly in the MEAs. alternative forms of protection. In an effort to facilitate
All of the trade measures relating to the CBD would fall inter-institutional communication, the Decision requests
into this category. A second area of concern, which the CBD Secretariat to seek observer status at the CTE.
remains a vexed one from the legal point of view, is the It also notes the potential benefits of exchanging infor-
treatment of non-parties to MEAs. However, the CTE did mation related to CBD Article 16 and the laws and regu-
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TRIPs and the Biodiversity Convention Volume 6 Issue 2 1997

lations which are submitted to the TRIPs Council pursu- regimes be examined at the macro level, but empirical
ant to Article 63 of the TRIPs Agreement. Finally, the evidence should be sought in order to measure the real
Decision calls for further work to be done in order to impacts of the IPRs regime on the conservation of bio-
develop a 'common appreciation' of the relationship logical diversity. Empirical studies also should analyze
between the two instruments. the effectiveness of initiatives, contractual or otherwise,
taking place in the private sector, again with a view to
finding practical solutions to actual problems.5 4
Conclusion
Thirdly, once the right process is in place for dealing
Much of the disconnection between the TRIPs Agree- with this interaction and more empirical information
ment and the CBD can be traced to the piecemeal and becomes available, the international community must
segregated nature of international negotiations, whereby confront the issues in a substantive manner. Certainly,
different institutions and personnel are involved. every effort should be made to ensure that the review
Although there has never been a formal international of Article 27(3)(b) of the TRIPs Agreement in 1999 is a
dispute involving either the CBD or the TRIPs Agree- rigourous one which examines the issues from the econ-
ment, let alone one involving their relationship, steps omic, social, development, moral, and environmental
should be taken now to clarify this relationship so as to conservation perspectives. A second opportunity pro-
minimize any incongruity. The following observations vided by the TRIPs Agreement should also be made full
are based on a pragmatic approach designed to give use of, namely the development of sui generis systems
effect to the principles and objectives of each regime. for plant genetic resources. In this regard, application
might be made to the Global Environment Facility, as the
Firstly, it is imperative that the general relationship financial mechanism for the CBD, to support the devel-
between trade measures in MEAs and the MTS be clari- opment of such systems and others.
fied, such that the integrity and effectiveness of MEAs is
not compromised. Such a resolution should allow for the It is necessary to create the right balance between the
bona fide use of non-specific trade measures in MEAs, as TRIPs and CBD regimes. In so doing, one objective
well as measures directed at non-parties required for the should be to endeavour to channel IPR incentives in
achievement of multilaterally-agreed objectives. This favour of conservation ends. 5 Prima facie, this already
means that a form of testing of such measures must be might occur to the extent that the benefits afforded by
agreed upon which will only examine whether such mea- IPRs enhance the value of natural resources." It would,
sures are instruments of protectionist abuse. however, also appear, from the CBD perspective, that
in some cases the TRIPs rules risk affording too much
The WTO is clearly a powerful international institution, protection for some types of innovations and not enough
in terms of influence, rule-making capacity, and the for other types of innovation. In many, if not most, cases,
sophistication of its machinery. It has captured the tensions between the two regimes would seem resolv-
'trade and environment' agenda for the time being. But able through tinkering rather than outright modification
its limitations in dealing with this subject are evident in of rules. It is to be expected that synergy between the
the lack of progress made by the CTE in its two years CBD and TRIPs on many of the issues raised in this arti-
of deliberations. Some of these limitations are due to the cle can be facilitated by the CBD COP producing multilat-
non-transparent nature of the WTO, which prevents it eral agreement and providing guidance on them.
from receiving sufficient expert expertise from the
environmental and other communities in matters, such If ultimately necessary, however, overall changes to the
as this, which are beyond traditional trade concerns. legal regime governing IPRs should not be shied away
This non-transparency also deprives the WTO of its legit- from. After all, IPRs are based on instrumentality, not on
imacy in such matters. Increased co-operation between principle, and inherently involve a compromise between
the WTO and the CBD Secretariat, including having the the public interest and the inventor. The CBD, along with
CBD Secretariat attend CTE meetings as an observer, will other international instruments and processes, have
help facilitate the exchanges of information and the enlarged the scope of the public interest to be con-
building of trust between trade and environment sidered. Article 10(a) of the CBD does precisely this by
officials. 1 Perhaps extending this application to also calling for conservation and sustainable use of biological
observe the TRIPs Council may also be useful. Indeed, resources to be integrated into the consideration of
further engagement of CBD institutions in these issues national decision- making.
57
would be welcome. In addition, however, more creative
thinking must occur in order to fashion an international
process where a long term consideration of these issues
would take place from a sustainable development per-
Notes
spective.5 2
1. See, e.g., J. Cameron and Z. Makuch, 'The UN Biodiversity Con-
vention and the WTO TRIPs Agreement: Recommendations to
Secondly, more information is needed in order to deter- Avoid Conflict and Promote Sustainable Development', (WWF,
mine where, in practice, the synergies and constraints Gland, 1996).
are.5 3 That both instruments are at early stages of 2. E.g. India's former Ambassador to the GATT, after describing
a process of negotiation that was fraught with heavy-handed
implementation presents an important opportunity to do pressure from the United States, stated that by 'April 1989 we,
fact-finding on which to base mutually supportive devel- the developing countries, virtually gave in on the issue of bring-
opment of law and policy. Not only should the global ing ... intellectual property rights within the ambit of the
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Volume 6 Issue 2 1997 TRIPs and the Biodiversity Convention
Volume 6 Issue 2 1997 TRIPs und the Biodiversity Convention

[Uruguay Round] negotiations', quoted in Gurdial Singh Nijar (1993) 151 and D. Cooper 'The International Undertaking on
'TRIPs and Biodiversity - The Threat and Responses: A Third Plant Genetic Resources', RECIEL, 2 (1993) 158.
World View', Third World Network, Paper 2, 1996. Less sym- 22. See, I. Walden, 'Intellectual Property Rights and Biodiversity',
pathetic to Northern concerns about the high cost of research in C. Redgewell and M. Bowman (eds) InternationalLaw and the
and development and the ability of pirating many products Conservation of Biological Diversity, (Kluwer Law International,
through reverse engineering, many in Southern countries fear The Netherlands, 1995) at 183.
the practical impacts of these monopoly rights, seeing them as 23. Dinah Shelton argues that the 'failure to allow intellectual pro-
reinforcing the economic dominance of the North and as perty rights for traditional knowledge of local communities can
depriving developing countries of much needed technology by be said to confuse the collective knowledge of a small group
being able to charge unaffordable prices. For a review of dif- with the public domain'. D. Shelton, Fair Play, FairPay: Laws to
fering perspectives, see M.G. Bhat, 'Trade-related intellectual Preserve TraditionalKnowledge and BiologicalResources, (WWF,
property rights to biological resources: Socioeconomic impli- Gland, 1995) at 36.
cations for developing countries', Ecological Economics, 19 24. D. Posey, TraditionalResource Rights: International Instruments
(1996) 205-217. for Protection and Compensation for Indigenous Peoplesand Local
3. E.g. FAO, especially for plant genetic resources for food and Communities, (IUCN, Gland and Cambridge, 1996) at 102.
agriculture, and WIPO for technology transfer. 25. Id.
4. By the end of 1996, there were 128 Members of the World 26. See e.g. the initiatives taken under the auspices of UNESCO
Trade Organization. and WIPO.
5. Intellectual property in the TRIPs Agreement include patents, 27. See 'The Impact of Intellectual Property Rights Systems on the
copyright, geographic indication, industrial designs, trade- Conservation and Sustainable Use of Biological Diversity and
marks, trade secrets (undisclosed information) and layout on the Equitable Sharing of Benefits From Its Use',
designs of integrated circuits. Relevant international agree- UNEP/CBD/COP/3/22, 22 September 1996.
ments include the Paris Convention for the Protection of Indus- 28. See G. Rose, 'International Regimes for the Conservation and
trial Property (1883) and the Berne Convention for the Protec- Control of Plant Genetic Resources, in C. Redgewell and M. Bow-
tion of Literary and Artistic Works (1886). man (eds) InternationalLaw and the Conservation of Biological
6. Article 4: Diversity, n.22 above.
With regard to the protection of intellectual property, any 29. See Decision 111/14 of the CBD COP on Implementing Article 8(j)
advantage, favour, privilege or immunity granted by a Member which sets up an intersessional process to examine these issu-
to the nationals of any other country shall be accorded immedi- es.
ately and unconditionally to the nationals of all other Mem- 30. D. Downes, 'The Convention on Biological Diversity and the
bers ... GATT', in R. Houseman, D. Goldberg, B. Van Dyke, and D. Zaelke
.

7. Article 3(1): (eds) The Use of Trade Measures in Select Multilateral Environ-
Each Member shall accord to the nationals of other Members mental Agreements, (UNEP Environment and Trade 10, UNEP,
treatment no less favourable than that it accords to its own 1995) at 232.
nationals with regard to the protection of intellectual pro- 31. See, e.g. statement by Switzerland, France, EC. See also L.
perty ... Glowka, 'The Next Rosy Periwinkle Won't Be Free: The Fallacy
8. Article 65(1) to (3). Article 65(4) allows a further five of years of the United States Failure to Sign the Convention on Biological
for developing countries who do not provide protection for Diversity', (unpublished report on file with the author), who
matters referred to in, inter alia Article 27(2). Article 66 pro- argues that rather than undermining IPRs, Article 16(5) merely
vides a delay of 10 years for least developed countries. requires that abusive practices associated with patented tech-
9. Article 68. The other two WTO Councils are the Council on nology do not defeat the objectives of the Convention.
Trade in Goods and the Council on Trade in Services. 32. WTO Secretariat, 'Factors Affecting Transfer of Environmentally
10. Article 71(1). Sound Technology', WT/CTE/W/22, 21 February 1996.
11. Article 1, CBD. 33. Article 31.
12. Article 8(1), CBD. 34. Article 8(h).
13. Articles 15(2), (4) and (7), CBD. See, generally, L. Glowka et al, 35. Article 27(2)(b).
A Guide to the Convention on Biological Diversity, (IUCN, Gland 36. Preamble, 9th recital.
and Cambridge, 1994), at 76-83. 37. Which in past GATT jurisprudence has been interpreted restric-
14. See Article 31(3)(c) of the Vienna Convention on the Law of tively. See, e.g. J. Cameron, 'The GATT and the Environment'
Treaties. in P. Sands (ed.) Greening International Law, (The New Press,
15. 815 UNTS 89. New York, 1994) at 100.
16. Friends of the Earth, Intellectual Property Rights and the Biodiv- 38. See, e.g. K. Dawkins and S. Suppan, Sterile Fields: The Impacts
ersity Convention: The Impact of GATT, London, (February 1995), of Intellectual Property Rights and Trade on Biodiversity and Food
at 16. See also 'Agreement on Trade- Related Aspects of Intellec- Security, (Institute for Agriculture and Trade Policy, Minnea-
tual Property Rights, Including Trade in Counterfeit Goods', polis, November 1996).
GATT Focus Newsletter, (December 1993). 39. E.g. by awarding innovation in this direction, e.g. through the
17. UPOV Doc. DC/91/138, 19 March 1991. UPOV system described above.
18. Article 14(1) extends plant breeder's rights to all production. 40. E.g. if this is linked to access to genetic resources, then Article
19. W. Reid, Genetic Resources and Sustainable Agriculture: Creating 15(2) requires that the resulting uses be environmentally
Incentives for Local Innovation and Adaptationl, (ACTS Press, sound.
1992). 41. See R. McNally and Peter Wheale, 'Biopatenting and Biodivers-
20. See A. Cosbey, 'The Sustainable Development Effects of the ity: Comparative Advantages in the New Global Order', Ecol-
WTO TRIPs Agreement: A Focus on Developing Countries', ogist, 26 (1996) 222 on the dangers associated with the trend
working paper, International Institute for Sustainable Develop- in the developed world to patent life forms.
ment, 1996; T. Cluenies-Ross, 'Mangolds, Manure and Mixtures: 42. Convention on the Law of Treaties (Vienna) 23 May 1969, in
The Importance of Crop Diversity on British Farms, Ecologist force 27 January 1980, (1969) 8 ILM 679, Article 31.
25 (1995) 181. 43. Article 4(b).
21. The non-binding International Undertaking on Plant Genetic 44. Article 30(3).
Resources (initially adopted in 1983 and supplemented by 45. E.g. if the CBD COP takes a decision concerning matters which
Annexes including an 'Agreed Interpretation of the International impact on IPR rules.
Undertaking'), provides for free access to plant genetic 46. E.g. Article 7(c) of the CBD requires each party to make this
resources, in accordance with Plant Breeder's Rights, and an determination, but this may not be agreed to by other Parties.
international fund to implement 'farmer's rights' which derive 47. C.W. Jenks, 'The Conflict of Law-Making Treaties', 13 BYIL 401.
from generations of farmer's contributions in 'conserving, 48. MTN/TNC/45(MIN).
improving, and make available plant genetic resources'. A Glo- 49. For this and other points in this section, see Report of the Com-
bal Plan of Action on Plant Genetic Resources for Food and mittee on Trade and Environment, WT/CTE/1, 12 November
Agriculture was adopted in 1996. See, e.g. J. Esquinas-Alcazar, 1996, which outlines the discussions and conclusions of the
'The Global System on Plant Genetic Resources', RECIEL, 2 CTE. Also see, K. Ewing and R. Tarasofsky, 'The "Trade and
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TRIPs and the Biodiversity Convention Volume 6 Issue 2 1997

Environment" Agenda: Survey of Major Issues and Proposals 54. E.g. bioprospecting arrangements agreed by Merck and InBio,

-
From Marrakesh to Singapore', (IUCN, forthcoming). as well as those of the National Cancer Institute.
50. CBD Secretariat, 'The Convention on Biological Diversity and 55. See Article 11 of the CBD.
the Agreement on Trade- Related Intellectual Property Rights 56. See C. Stone, 'What to Do About Biodiversity: Property Rights,
(TRIPS): Relationship and Synergies', UNEP/CBD/COP/3/23, 5 Public Goods, and the Earth's Biological Riches', 68 Southern
October 1996. See also CBD Secretariat, 'The Impact of Intellec- California Law Review, 577.
tual Property Rights Systems on the Conservation and Sus- 57. Also see too Article 6(b) of the CBD, which call for integrating
tainable Use of Biological Diversity and on the Equitable Shar- the conservation and sustainable use of biological diversity into
ing of Benefits from its Use', UNEP/CBD/COP/3/22, 22 relevant sectoral and cross-sectoral plans, programmes and
September 1996. policies.
51. Also see Article 5 of the CBD. Decision 111/17 of the CBD COP
sensibly notes the usefulness of CBD Parties, who are also Par-
ties to TRIPs, notifying the TRIPs Council, pursuant to TRIPs
Article 63, of IPR-related measures taken to implement CBD
Article 16. Richard G. Tarasofsky is Legal Officer at the IUCN
52. One step in this direction is the proposal currently being
developed by IUCN and IISD to establish a Standing Committee Environmental Law Centre. The views expressed in
on Trade and Environment (SCTE). The SCTE would bring this article are strictly personal and do not neces-
together official and non-state environmental actors in order sarily reflect the position of IUCN - The World Con-
that an organized and coherent environmental position on servation Union. The helpful comments provided
trade issues is voiced.
by Lyle Glowka, David Downes, and Mia Severin on
53. One of the objectives of the current IUCN project on the CBD
and international trade regimes is to bring such information to earlier drafts are gratefully acknowledged.
discussions at global and national levels.

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