resources and patents. Colombia removed the submission on the condition that WIPO would create an international committee to discuss this issue, i.e. the IGC. In 2001 the IGC began negotiations for the creation of an international instrument related to IPRs and access to genetic resources. The negotiations ended in 2013 with a draft of a ‘consolidated document’. Despite the fact that some progress was made in the consolidated document, parties have not reach any compromise in key aspects, such as the nature of genetic resources and disclosure of origin. Furthermore, as the General Assembly of WIPO in 2014 did not make a decision on the work of the IGC, the WIPO agenda for 2015 did not include any IGC sessions. In the case of the WTO and the Council for TRIPs, developing countries were those members of the WTO that campaigned more to relax IPRs’ dispositions in Doha. Although access to medicine was the most noticeable discussion during the Doha negotiations, developing countries rich in biodiversity have also included traditional knowledge and the relationship between the CBD and TRIPs, including definitions of genetic resources and disclosure of origin in patents, in the agenda of negotiations. However, the US (supported by other developed nations such as Japan) has refused to implement any measures that might create binding obligations and amendments in TRIPs, and has maintained the position that a perfect synergy between IPRs and the ABS regime could only occur through national legislation and bilateral agreements that facilitate that users of genetic resources and developing countries could reach MATs. These conflicting views on this issue have led to a stalemate in the negotiations in TRIPs. Indeed, the Director of the WTO issued a report in 2011, which highlights that conflicting views remain from developed countries and developing countries rich in biodiversity on the relationship between the CBD and TRIPs, in particular the implementation of the disclosure of origin. Although the inclusion of provisions related to the ABS regime in negotiations within the WTO and WIPO have led to a stalemate, Helfer, Safrin, Raustiala and Victor consider that the ABS regime has given the opportunity to developing countries, including those rich in biodiversity, to
Directive, as this is in line with ATJ’s interpretation of Article 15 of Decision 486. However, patents on genetic resources would only be possible if the objectives of Article 1 of the CBD were met, particularly benefit sharing. Therefore, it is now important to discuss how Colombia should implement the ABS regime in order to increase capacity, so they could benefit from the exploitation of genetic resources. Benefit Sharing and Capacity in Colombia Chapter 4 highlights that developing countries rich in biodiversity seek to counterbalance the linkage of international trade and IPRs, for a different trade-off that includes restricting the scope of patents on genetic resources and securing ownership control on those resources in order to bargain with them for access to technology. This can be observed in the third objective of the CBD: users of genetic resources are obligated to share the benefits from the utilisation of genetic resources with countries where those genetic resources are located (i.e. developing countries rich in biodiversity). The third objective of the CBD, in which countries are allowed to counterbalance TRIPs provisions that might affect them, is particularly reflected in Rawls’ work. For instance, as explained in the Introduction of this Thesis and Chapter 4, in the light of Rawls’ social contract theory, developing countries rich in biodiversity are entitled to claim ownership control of genetic resources as a result of a bargain between developed and developing countries rich in biodiversity – despite the fact that developing countries rich in biodiversity do not carry out any intellectual labour that adds value. However, such a trade-off between access to genetic resources and access to technology does not depend exclusively on having control over genetic resources, but also on users of genetic resources that hold technology which employs genetic resources for drug development. Therefore, it is important that users of genetic resources can actually have access to those
8 In the development and implementation of its access and legislation or regulatory requirements, each Party shall: (a) Create conditions to promote and encourage research which contributes to the conservation and sustainable use of biological diversity, particularly in developing countries, including through simplified measures on access for non-commercial research purposes, taking into account the need to address a change of intent for such research; (b) Pay due regard to cases of present or imminent emergencies that threaten or damage human, animal or plant health, as determined nationally or internationally. Parties may take into consideration the need for expeditious access to genetic resources and expeditious fair and equitable sharing of benefits arising out of the use of such genetic resources, including access to affordable treatments by those in need, especially in developing countries; (c) Consider the importance of genetic resources for food and agriculture and their special role for food security. 9 The Parties shall encourage users and providers to direct benefits arising from the utilization of genetic resources towards the conservation of biological diversity and the sustainable use of its components. 10 Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally. 11 1. In instances where the same genetic resources are found in situ within the territory of more than one Party, those Parties shall endeavour to cooperate, as appropriate, with the involvement of indigenous and local communities concerned, where applicable, with a view to implementing this Protocol. 2. Where the same traditional knowledge associated with genetic resources is shared by one or more indigenous and local communities in several Parties, those Parties shall endeavour to cooperate, as appropriate, with the involvement of the indigenous and local communities concerned, with a view to implementing the objective of this Protocol.