The issue of Biopiracy exposes a larger skirmish between the Intellectual Property Rights and Human Rights since it goes against the very idea of patents while stripping the original inventors (the indigenous communities) of the moral rights to their inventions.
In addition to plants, food grains, exotic fruits, appetite killing cactuses, a substantial portion of Biodiversity also includes highly profitable aquatic resources which form a part of marine life. In fact, a much higher number of species are found in marine environments than in the terrestrial one for the depth of ocean is four times the height of land. Marine genetic resources are increasingly being scouted by scientists and research organisations who want to unravel its benefits to the world and to themselves. Amongst the top beneficiaries of marine resource exploits are the medicine industries and biochemical corporate giants, who continue to derive immense profit from the discoveries of research explorations.
In the international trade forums, most of the ‘user parties’ (countries exploiting the resources) shrewdly use the word “Bioprospecting” instead of Biopiracy to mask their raider-like actions by portraying as if they are prospecting a non-living resource. The term Bioprospecting is usually understood to mean the mining of mineral resources. The usage of this word which is commonly noticeable in various parts of the world is highly misleading. This is because the practice of Bioprospecting, includes the extraction of both biological as well as non-living resources. In practice, most countries end up focusing upon and hijacking substantial amounts of biological resources only, while ignoring the non-living resources (e.g., minerals).
Scholars have described Bioprospecting as ‘A New Lease on Life’ which involves “the exploration of biodiversity for commercially valuable genetic and biochemical resources”. Therefore, Bioprospecting is nothing but, as Vandana Shiva argues, a ‘sophisticated form of Biopiracy’.
The principal concern, in almost all cases involving Biopiracy, is that it imperils the moral rights of the indigenous communities who have been the actual holders of the resources for centuries since the promises of benefit sharing are usually hollow and completely ignored over time. When such promises of benefit sharing become a farce, the following definition of Bioprospecting speaks of nothing but Biopiracy:
“… The rationale is to extract the maximum commercial value from genetic resources and indigenous knowledge, while creating a fair compensation system that can benefit all. The phases of bioprospecting start with sample collection, isolation, characterization and move to product development and commercialization. Bioprospecting is possible both in terrestrial and marine environments.”
This article will analyse the issue of Biopiracy of marine genetic resources in the high seas (part of the ocean that does not fall within the jurisdiction of any particular country). In doing so it will focus on Convention on Biodiversity (hereinafter, “CBD”), Nagoya Protocol on Access and Benefit Sharing (hereinafter, “Nagoya”), United Nations Convention on Law of the Sea (hereinafter, “UNCLOS”), and Agreement on Trade Related Aspects of Intellectual property Rights (hereinafter, “TRIPS”). This will highlight the interplay of these laws and reveal the shortcomings of the present legal framework owing to the tussle between marine law and patent law.
The focus of this article becomes very pertinent in the present times when international organisations like the U.N. have emphasised upon the need to protect, regulate, and ensure an equitable access to Bioresources in the high seas. After a thorough analysis of the practical shortcomings in the present regulatory framework, this article ventures to put forth a few suggestions that might prove beneficial in the protection of marine genetic resources from “Bio-Pirates” (a term used to refer to the developed nations engaged in a patent spree). In the final leg, this article moves towards perusing the draft high seas treaty under negotiation at the U.N. and offers a conclusion of curbing hopes that tend to soar a little too high — even more than the seas.
LAW IN THE HIGH SEAS AND THE SPREE FOR PATENTING MARINE GENETIC RESOURCES
The TRIPS agreement lays down minimum standards concerning what can and cannot be patented by the contracting parties. TRIPS is aimed at promotion of the patent regime across the world. TRIPS clearly lays down characteristics of the patentable subject-matter. With respect to patenting of plants, animals excluding micro-organisms, and biological processes excluding non-biological and microbial processes, TRIPS allows room for discretion of the member states.
Article 1 of the CBD enlists the objectives which it aims to achieve. These are “the conservation of biological diversity, sustainable use of its components and the fair and equitable sharing of the benefits”. CBD and protocols afford tools for the protection of indigenous communities, by laying down that the Intellectual property rights (IPR) should not run counter to the convention. CBD gives the contracting parties a free hand to develop access and benefit sharing regimes, based on their domestic legal atmosphere. The very first country to put such a regime in place was the Philippines. But the regime so developed was restrictive beyond reasonable bounds. Data shows that restrictions put on the access to resources by the ‘Access and Benefit Sharing’ regime of the Philippines was so stringent that even basic aims like conducting mere research were rendered impossible.
There were several countries like Brazil and Kenya, amongst others, that followed the Philippines and created similarly restrictive ‘Access and Benefit Sharing’ regimes on paper. This resulted in making the “access” a farce. This self- contravening implementation of CBD led to the enactment of various rules and guidelines by different bodies to ensure a proper access and benefit sharing regime. For instance, the Bonn Guidelines were enacted by the Working Group on Access and Benefit Sharing but it failed to bring about the desired change because it lacked any enforcement mechanism and required dualist implementation of law by state parties. This was followed by recurring Conferences of Parties which led to the creation of Nagoya in 2010. The Nagoya Protocol essentially furthered the objectives of CBD by merging the objectives of conservation and sustainable use with access and benefit sharing under Article 1. The UNCLOS provides an intricate framework of rights and regulations which helps in demarcating the areas of access, exploitation, and sovereign control over the various water bodies and their marine life. But it has been a point of contention whether the existing law under UNCLOS governs the rights, access and exploitation of the marine genetic resources because it does not make a direct mention of it. Although the seabed under the high seas is a common heritage of mankind, the resources merely mention minerals in its legal definition. Therefore, the countries can call for protecting the seabed as a common heritage and stop its exploitation. But on the other hand, user parties can level an argument that the law only mentions minerals when it speaks of seabed as common heritage and not the whole of biodiversity that comes with the sea bed. Hence, they should be allowed to exercise Bioprospecting.
The UNCLOS legal framework only succeeds to protect the marine biodiversity which exists within the national boundaries of a particular state from Biopiracy. The real issue arises with respect to marine biodiversity which lies beyond the territorial waters of a particular state. This is because the marine genetic resources in the high seas are open for exploitation by the whole world and no one country has an exclusive right of usage unless there exists a treaty or agreement between the countries that lie around that water body.
TACKLING THE MENACE OF “BIOPIRACY”
The majority of marine biodiversity patents are held by developed countries who have access to advanced technology to exploit such resources. This raises issues concerning equitable utilization of such resources amongst countries. In a review of patents granted between the years 1991 and 2009 it was discovered that merely 10 countries hold the world’s 90% of marine genetic patents in the high seas. TRIPS allows the patentee to not disclose the location of such marine genetic resources. This runs counter to Article 244 of UNCLOS which requires publication of such information and knowledge and sharing the same towards the benefit of developing states as well. TRIPS allows exclusive rights to the patentee over such genetic resources which falls in contravention to the bar against legal claims over marine resources that UNCLOS lays down. This hinders the aim of protection and conservation of such resources because it becomes impossible for one to understand where such protection is required.
The problem of unchecked patenting of the species in high seas raises issues of equity because developing states with lesser technological advancement and lesser means, cannot navigate the areas as quickly as the Biopirates. In addition to the issues of equity in the high seas, such actions of the technology laden Biopirates also hinder the utilisation of resources by a country within its national territories. There are various concerns on both ethical and moral levels that the practise of Biopiracy raises.
One of the most worrying concerns is the Biopirate country’s ability to handicap the original possessor state by ensuring that the latter is unable to utilise the marine genetic resources which lie within its jurisdiction. Once a particular species or resource has been patented in the high seas by a Biopirate, a developing nation that finds the same species within its national jurisdiction cannot use it any longer because the Biopirates in the high seas have already obtained universal patents on the particular species. This leads to the obliteration of the concept of access and benefit sharing because even if the laws allow for it, the developing nations can never utilise the resource before it has already been usurped by a powerful Biopirate nation.
EXPLORATION OR EXPLOITATION: DIFFERENT INTERPRETATIONS OF BIOPIRACY
In the glaringly contradictory tussle between patent law (TRIPS) and marine law (UNCLOS), it is the former that emerges victorious. One of the major reasons for this is that the marine legal framework, as it exists at present, does not regulate the access to marine genetic resources in an effective manner. This is clearly demonstrated by the fact that there is no direct mention of marine genetic resources in UNCLOS. In fact, it is only through a cumbersome process of legal interpretation that the marine law tries to accommodate the regulation of marine genetic resources.
There are two foundational standpoints that shape the jurisprudence around utilisation/exploitation of the marine genetic resources in the high seas. First, the colonising undertones of TRIPS, views high seas as an area of no control which is open for all to exploit based on their ability. Whereas the other standpoint is in tune with the ethos of UNCLOS which views such resources as the common heritage of humankind. Despite their diverging outlook, both standpoints can be justified under UNCLOS because the said law is vague enough when it comes to marine genetic resources. UNCLOS allows the states to exploit the high seas for ‘marine scientific research’. Therefore, those favouring the first standpoint characterise their ‘exploitation’ of marine genetic resources as ‘marine scientific research’ and justify it as their legal right under UNCLOS.
There have been various solutions suggested by different scholars to resolve the problem. The best way forward in absence of a specific treaty dealing with high seas is to amend the UNCLOS to include genetic marine resources under the jurisdiction of the International Seabed Authority. This is the only way to usher in the practise of benefit sharing by dissemination of knowledge and keeping a check on the Biopirates from the developed nations. An inspiration can be taken from the Indian scenario where a database containing all the information about marine genetic resources around the world and their patent holders can be recorded to ensure that the developing nations are not made victims to the unfair interpretation of laws by the developed nations.
TOWARDS A MORE EQUITABLE REGULATORY FRAMEWORK
The CBD applies to “processes and activities” which are carried on beyond the jurisdiction of a country and requires that concerned states cooperate in such cases of extra-territoriality and create conditions to facilitate access of other contracting parties to the resources. Article 10 of Nagoya Protocol, in a way, can be called the seer article which provides for creation of a global benefit-sharing mechanism to deal with resources that lie beyond the national boundaries. But neither the CBD nor the Nagoya Protocol are binding in nature.
The Preparatory Committee report of 2017 called for an establishment of the harmonized relationship between IPR and high seas genetic resources. The solution is a multilateral treaty between the states, which is under negotiation presently making 2021 a ‘super year’ at least for the oceans. But a major question that needs to be looked at, is if the treaty being negotiated will replace the existing law by making necessary amendments or will it fill the loopholes that had let Biopiracy to slip through the ineffective legal framework.
At the very outset if one looks at the document containing textual proposals to be considered by the intergovernmental conference, it will remind one that what we have is just the draft, not a law yet. Articles 4 and 12 of the draft treaty maintain that the treaty must be implemented without prejudicing the IPR and other rights of the state which are already existent under other legal instruments. This might lead to undermining the treaty and its object to make space for respect of equity and sustainable use because the treaty is barred from transgressing the already existing legal regime. Article 6 of the draft is crucial because it highlights international cooperation as an indispensable element of the solution to unchecked exploitation (Biopiracy) of marine genetic resources in the high seas.
Since lack of implementation was the major reason for the failure of previous laws like CBD, Nagoya Protocol etc. article 48 of the draft treaty provides for a conference of parties which would collectivise all the member states to make decisions on and monitor progress towards implementation. Moreover, the draft treaty also remedies the problem of information exchange by introducing an amalgamated system for relaying the information amongst all the state parties. An effective definition for marine genetic resources has not yet been agreed upon and is still undergoing deliberation. The draft treaty does not specify much about the benefit-sharing i.e. if it will be voluntary or mandatory, if it will be monetary or non-monetary or both. To address the issue of equity and to hold hands with the developing nations while marching towards progress, the draft treaty contains articles devoted to capacity building and technology transfer efforts. There is even an annexure provided which enlists forms of biotechnology that shall be utilised by transfer in capacity building. But at the same time the draft treaty has the suggestion to make capacity building and technology transfer a voluntary exercise which can be done in a bilateral, multilateral, regional or subregional manner among the state parties. Furthermore, even the step of reporting towards better implementation of technology exchange and capacity building is a voluntary one. Thereby not really mandating an efficient system of sharing amongst the parties. No party with resources would voluntarily want to part with them or voluntarily share their profits from piracy.
The draft of the high seas treaty, that is currently under negotiation, might be the golden key to introducing a more effective, equitable and transparent system of resource allocation with respect to the marine genetic resources. While one hopes that the international organisations will be able to replace the defunct existing framework with a more effective regulatory mechanism, only time will tell if the measures brought into effect would be successful in achieving the aspirations of a more equitable access and benefit sharing regime.
Sahil Bansal is an incoming LLM Candidate at University of Cambridge. He recently graduated from Jindal Global Law School, India.