Biopiracy and states’ sovereignty over their biological resources

Abstract

In the last several decades, indigenous communities had to contend with the misappropriation of their biological resources and associated traditional knowledge (TK) through the inappropriate exercise of intellectual property rights (IPRs). The advent of modern biotechnology has intensified this problem leaving indigenous communities increasingly vulnerable. As a counter measure, the Convention on Biological Diversity (CBD) was adopted in 1992, proclaiming the sovereignty of states over their biological resources, and requiring their consent and the equitable sharing of benefits on mutually agreed terms as conditions for access. On October 29, 2010, the Nagoya Protocol was adopted to implement these provisions. Nevertheless, the CBD has attracted critical comments from those opposed to the idea of state sovereignty over biological resources, especially when the exercise of sovereignty transcends a state’s territorial borders. Two alternative doctrines; “the common heritage of mankind”, and “the global commons”, have been canvassed. This paper set out to analyse these arguments together with the alternative doctrines, in order to determine whether state sovereignty over biological resources as proclaimed by the CBD is justified. The merits of each doctrine were examined against the background of the problems presented to indigenous communities by the trinity of biopiracy, IPRs and modern biotechnology. The paper found that the doctrine of state sovereignty over biological resources, whilst having its limitations, is not only normatively justified, but is also, comparatively more capable of helping to protect the biological resources and associated TK of indigenous communities against piracy.

Key words: Indigenous communities, biological resources, traditional knowledge, biopiracy, Convention on Biological Diversity (CBD), plant breeders’ rights, patents, sovereignty.