Conservation, Biodiversity and International Law

Conservation, Biodiversity and International Law

New Horizons in Environmental and Energy Law series

Alexander Gillespie

This important and timely book provides a rigorous overview of the defining issues presently facing conservation at international level. The author provides detailed coverage of topics ranging from the classification of species right through to access and benefit sharing, drawing on his personal experience at intergovernmental level. Each question is examined through the prism of dozens of treaties and hundreds of decisions and resolutions of the key multilateral regimes, and the law in each area is supplemented by the necessary considerations of science, politics and philosophy – providing much-needed context for the reader.

Chapter 17: Access and Benefit Sharing

Alexander Gillespie

Subjects: environment, environmental law, law - academic, environmental law, public international law


1. INTRODUCTION Access to, and benefit sharing from, biodiversity is currently one of the largest preoccupations of the international community in the area of conservation law. However, resolution in this area is far from likely in the short term as two contradictory trends are colliding. On the one hand, there is a very strong trend within the international community for the protection of intellectual property. On the other hand, there is a push, in the alternative direction, that certain types of biodiversity should be public property. The trend for the protection of intellectual property is most obvious through the work of the World Intellectual Property Organization (WIPO), International Convention for the Protection of New Varieties of Plants (UPOV) and the World Trade Organization (WTO). Although the CBD suggests that biodiversity is to be utilized in a way consistent with intellectual property, the idea that key genetic aspects of biodiversity may become private property (and thereby restricted, and not necessarily shared equitably) does not sit easily. This was originally so with the collation of seed banks of international importance, the concept of Farmers’ Rights, and most notably, the Treaty on Plant Genetic Resources for Food and Agriculture. In all of these three, the push is for biodiversity as common, not private, property. Such a conflict means that at present, a somewhat ad hoc, and not necessarily consistent, framework over the private or public ownership of biodiversity exists. 2. THE AGE-OLD TRANSFERS OF THE BIOLOGICAL MATERIAL, LAWFUL AND OTHERWISE Humanity has been...

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