Biodiversity, intellectual property rights, and the GATT agreement: how to address the conflicts?

Decision II/12 of the Second Conference of the Parties (COP2)[UNEP 1995] to the Convention on Biological Diversity (CBD) requested the CBD Secretariat to: undertake a preliminary study which analyses the impact of Intellectual Property Rights (IPR) systems on the conservation and sustainable use of biological diversity and the equitable sharing of benefits derived from its use; liaise with the Secretariat of the World Trade Organisation (WTO) to inform it of the goals and the ongoing work of the CBD; invite the Secretariat of the WTO to assist in preparing a paper for the Conference of Parties that identifies the synergies and relationship between the objectives of the CBD and the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS). The decisions at the Third Conference of Parties (COP3) carry forward the concerns reflected at COP2 on the inter-linkages between IPR issues and trade liberalisation on the one hand, and the objectives of the CBD on the other: Decision L.18 of the Third Conference of Parties [UNEP 1996a] draws attention to the need for conducting case studies of the impacts of IPRs on the achievement of the CBD's objectives, including relationships between IPRs and the knowledge, practices and innovations of indigenous and local communities relevant to the conservation and sustainable use of biodiversity. It further recognises the need for work required to help develop a common appreciation of the relationship between IPRs and the TRIPS Agreement and the CBD, in particular on technology transfer and on the three-fold objectives of the CBD, viz., conservation and sustainable use of biodiversity and the equitable sharing of benefits arising from such use. Decision L.12 further states that the WTO through the Committee on Trade and Environment (CTE), should consider a better appreciation of the relationship between trade and agricultural biodiversity, and collaborate with the CBD [UNEP 1996b]. Decision L.8 emphasises the need for co-operation between the CBD process and the WTO with regard to the inter-linkages between Article 15 on access to genetic resources and the TRIPS agreement.[UNEP 1996c] This paper has been prepared in view of these decisions. It examines the impact of Intellectual Property Rights (IPR) on biodiversity in general and specifically on the objectives of the CBD. It also addresses the broader issue of the relationship between the GATT/WTO Agreement and the CBD. It then reflects on the choices available to ensure that the objectives of the CBD are not undermined. Though the larger issue of relationship and potential conflicts between the GATT-WTO Agreement as a whole and the CBD, has not been addressed in the COP3 decisions, we feel it is an equally important aspect that requires detailed analysis. This paper is in the nature of a preliminary study. The purpose is to generate debate and discussion on the issues raised. We look forward to comments and criticism, as well as further information which elucidates the impact of IPRs and the GATT mechanism on biodiversity