Biotechnology and International Law.

• Author: Sterwart, Andy
• Position: Book review

Biotechnology and International Law. Edited by Francesco Francioni and Tullio Scovazzi, Portland, OR: Hart Publishing, 2006. Pp. xxxvii, 448. $120.00 (hardback).

Organisms adapted to extreme conditions and areas rich in biodiversity contain genetic material promising untold wealth to industries capable of studying and exploiting it. These organisms and habitats often exist outside of sovereign territory or within the territories of states incapable of researching their own biodiversity. Western states and industries often have the resources to conduct research in these areas. International treaties protect the property rights of companies obtaining patents, but questions arise about the equitable sharing of profits between the nations that provide the raw materials and the companies that turn genetic resources into profitable products. Biotechnology advances at an increasing rate, leading to questions about how human dignity should be safeguarded. The five parts of Biotechnology and International Law explore basic international legal principles surrounding genetic resources, the environment and biotechnology, international trade and genetic resources, human rights and genetic research, and area studies of legal regimes relating to biotechnology regulation.

The first part of the work introduces the legal framework surrounding biotechnology. Francesco Francioni sketches out the rough jurisdictions in which biotechnological activities occur. States control resources within their territories and may regulate access to them. The deep-sea bed falls under the jurisdiction of the U.N. Convention on the Law of the Sea (UNCLOS). Antarctica is subject to a web of treaties and sovereign claims under the Antarctic Treaty System (ATS). With the exception of the 1992 Convention on Biodiversity (CBD), no international treaty deals specifically with genetic resources. Francioni then discusses the application of environmental and economic international law to genetic resources.

Riccardo Pavoni surveys the "embryonic general regime of biodiversity and biotechnology" (p. 30), and derives four fundamental principles. Firstly, the "common concern of humanity" (p. 8) principle holds that certain shared fundamental principles might be beyond the individual jurisdictions of states. The safe and productive use of biotechnology is implicated as one of these fundamental principles. Secondly, the principle of equitable sharing of profits derived from sovereign genetic resources is "steadily emerging as a rule of customary law" (p. 41). Concerns that the principle of benefit sharing is incompatible with existing intellectual property agreements seem to prevent its formal adoption. Thirdly, the precautionary principle applies to both biosafety and biotechnology products. In the absence of sufficient scientific data regarding risks behind a biotechnological product a state may regulate access on these grounds. The contours of this principle are not well-defined. At issue is the degree of scientific uncertainty and potential harm necessary to justify a state's precautionary regulations towards a specific product. Finally, the principle of mutual supportiveness addresses potential conflicts between trade and human rights or environmental instruments. Increasingly, instruments are less universal in scope and include conflict clauses stating that other treaty obligations are not to be subverted. In customary law, too, the view that states have duties to...