The interface between TRIPS and CBD: efforts towards harmonisation

• Pages: 108-132
• DOI: https://doi.org/10.1108/14770021211239640
• Published date: 15 June 2012
• Date: 15 June 2012
• Author: Lekha Laxman,Abdul Haseeb Ansari
• Subject Matter: Economics

The interface between TRIPS

and CBD: efforts towards

harmonisation

Lekha Laxman

Faculty of Management and Human Resource Development,

Universiti Teknologi Malaysia, Johor Bahru, Malaysia, and

Abdul Haseeb Ansari

Ahmad Ibrahim Faculty of Laws, International Islamic University Malaysia,

Kuala Lumpur, Malaysia

Abstract

Purpose – The purpose of this paper is to analyse the interface between the Trade Related Aspects of

Intellectual Property Rights Agreement (TRIPS) and the Convention on Biological Diversity (CBD), to

determine measures available to the global community to resolve the conf‌lict between them, in order to

prevent the rapid loss of biodiversity despite the diverse interests of nations.

Design/methodology/approach – Within the framework of sustainability, this paper adopts a

socio-legal approach by undertaking a content analysis of the relevant treaties and juristic writings

that sheds light on the existing matrix of interaction between the two legal instruments.

Findings – The f‌indings reveal that there is an urgent need to review all the instruments, particularly

in the area of trade, intellectual property and conservation of biodiversity that causally inf‌luence the

people’s freedoms and capabilities in the said areas. To overcome the range of these surmountable

barriers, a comprehensive approach to development is required, i.e. an all-encompassing functional

relation amalgamating distinct development concerns in relevant spheres, especially in economic

matters.

Practical implications – The paper explores the changes that need to be incorporated in the TRIPS

and CBD in order to develop an appropriate normative framework with regards to property in genetic

material.

Social implications – The research provides amicable solutions that can be explored particularly

by the providers of genetic resources, in order to overcome the monumental challenges during the joint

implementation of TRIPS and the CBD.

Originality/value – The comprehensive review undertaken in this paper enables the stakeholders to

explore measures that enable sustainable development without jeopardizing Earth’s biodiversity.

Keywords Agreements,Conventions, International cooperation, Internationalrelations, Trade,

Intellectualproperty, Biodiversity, Sustainabledevelopment, Genetic resources,

Access and benef‌it sharing,Traditional knowledge

Paper type Research paper

I. Introduction

The regulatory model underlying international organizations and agreements, e.g. the

World Intellectual Property Organization (WIPO), and the Trade Related Aspects of

Intellectual Property Rights Agreement (TRIPS) has been referred to as “maximalist

rights culture” – wherein the equation between “more protection of intellectual

property” and “better economic performance” is applied – has continuously expanded

the protection of intellectual property (IP) in scope and depth over the last decades

The current issue and full text archive of this journal is available at

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JITLP

11,2

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Journal of International Trade Law

and Policy

Vol. 11 No. 2, 2012

pp. 108-132

qEmerald Group Publishing Limited

1477-0024

DOI 10.1108/14770021211239640

(Haunss and Shadlen, 2008). The appropriateness of the equation is increasingly being

challenged through the introduction of other normative and ethical considerations

regarding conservation of the biodiversity, and ensuring food security and public

health (Haunss and Shadlen, 2008). The importance of intellectual property rights

(IPRs) in biotechnology related innovations on the one hand and control over genetic

resources, crucial for such innovations, on the other is increasingly evident in global

economic activities. Hence, political conf‌licts are emerging as actors contest the

structure, scope and boundaries of existing legal frameworks of IPRs (Haunss and

Shadlen, 2008). The case of interaction between the TRIPS and the Convention on

Biological Diversity (CBD, n.d.) warrants special focus not only due to the implication

of the political conf‌lict brewing therein, but also because it provides an interesting

example of counterinf‌luence between the two regimes and they concurrently

undermine each other in the “race to control genetic resources” fuelled by different

actors pursuing their interests based on the diverging norms emanating from the two

regimes (Rosendal, 2006, p. 80).

The interface of these two legal instruments can be depicted as one of uneasy

co-existence widely regarded by developed and developing nations alike as inevitably

heading towards conf‌lict ridden situations. Differing interests have lead nations to

collective bargaining. Under these circumstances, one is hard put to ignore the

increasingly contentious politics that accompanies the globalization of IP laws which is

neither straight forward nor unchanging (Aoki, 1998, p. 11). In our search for solu tions,

it is prudent for us not to ignore the messiness or diversities of the world or assume

that concepts such as “sovereignty” and “property” are particularly stable constructs

(Aoki, 1998, p. 11) in an ever-changing legal horizon of law. Particularly, in the context

of sophisticated technologies such as biotechnology, it is incumbent on us to avoid the

pitfalls of a “Jetson’s Jurisprudence”[1] which implies that the future is bright by virtue

of such quick techno f‌ixes (Aoki, 1998, p. 11).

II. Analyses of the interface between TRIPS and CBD

There existsongoing debates on analysing therelationship between TRIPS andthe CBD,

both in the World Trade Organization (WTO) (under the TRIPS Council and the

Committee on Trade andEnvironment (CTE)), and outside the WTO – the core of these

discussionsrevolved around “the lack ofrecognition of the objectivesof the CBD by some

members as well as theneed to incorporate these objectivesinto the TRIPS Agreement”

(Eugui, 2002, p. 1). Third worldcountries have pointed out incompatibilityof the TRIPS

Agreement and the CBD and henceforth recommended that: WTO members should

amend TRIPS, particularly Article 27.3(b), to conform it to a CBD-like pattern of

international obligation; TRIPS should require authorisation for access (to genetic

resources)and benef‌it sharing (ABS) within the territoryof a WTO member, ensure prior

informed consent (PIC) (Linarelli, 2002, pp. 422-3). The Doha Ministerial was the key

vehicle to introduce new mandates on the relation between the CBD and the TRIPS

Agreementand this had lead to several directand indirect referencesto the said relation in

theapproved Doha MinisterialDeclaration found in the list of outstandingimplementation

issues[2] andin the two sections of the Doha MinisterialDeclaration text[3] (Eugui,2002).

These referencessignalled a readiness on thepart of the WTO members to f‌ind synergies

between the CBD and the TRIPS. Similarly, on the part of the CBD a series of decisions

beginning with the COP2 to the CBD (Verma, 2000, p. 5)[4] followed bythe COP3[5] lead

The interface

between TRIPS

and CBD

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