Abstract
This paper investigates the suitability of geographical indications (GIs) as a protection regime for traditional knowledge (TK). To examine the adequacy of GIs for the protection of TK, this paper considers the similar elements of GIs and TK, as well as significant limitations that arise due to the nature of GIs. This paper argues that notwithstanding the suitability of GIs for the protection of TK, they are not adequate to protect TK as the sole protection regime.
Introduction
TK is a concept of cultural ecology,[1] which is important to its holders as a key part of their cultural heritage and livelihood. The need for legal protection of such knowledge is increasingly gaining international attention as the value of TK is broadly recognised. Despite significant recognition and debate on the need for its protection, TK is being lost at a concerning rate as no effective legal protection regime has been implemented internationally to date. Intellectual Property Rights (IPRs) are namely the legal systems used worldwide to grant protection over knowledge, however some of these rights contribute to the problem of TK loss as opposed to aiding them as TK often tends to fall outside the eligibility for most IPRs.[2] Some less discussed forms of IPRs however may have the potential to protect TK, such as GIs. Among the IPRs, GIs are considered to be one of the most suitable regimes for the protection of TK due to various similarities in their characteristics and objectives. However, the debate on the effectiveness and adequacy of GIs for this purpose still remains.
This article examines the suitability of GIs for the protection of TK and argues that GIs alone are not enough to protect all forms of TK. Chapter 1 considers the significance of TK, the concerns of indigenous and local communities (ILCs) and the justifications for TK protection. Chapter 2 presents the essential characteristics of GIs that make them particularly suitable for the protection of TK and then considers the limitations posed by GIs.
Chapter 1 – Significance of Traditional Knowledge
1.1 Concept of TK and its protection
The concept of TK refers to the knowledge, practices and innovations of ILCs worldwide, which has been developed from experience and passed down between generations. Holders of TK can be very diverse in that they can consist of individuals, communities or groups of communities, who might be indigenous to the land or descendants of such ancestors. TK can exist in various forms including, but not limited to, medicines, scientific discoveries, art, performances, folk remedies and culture, knowledge of plant varieties, literature and handicrafts.[3] The World Intellectual Property Organization (WIPO) further described that this knowledge is usually “not limited to any specific technical field, and may include agricultural, environmental and medicinal knowledge, and traditional knowledge associated with genetic resources.”[4] In this context the word ‘traditional’ is not used due to the knowledge being old in the sense that it has been handed down from generation to generation, but because it is formed, conserved, and circulated in the traditions of certain communities. It is continuously improved to establish new knowledge similar to scientific innovations by continual small improvements compared to big leaps. A few types of knowledge are passed on in codified forms such as medicinal knowledge and textile designs; however, the majority of the traditional knowledge is passed on orally. Essentially, TK can be deemed representative of the cultural values of local communities, which is held collectively by them.[5]
Over decades of years, cases in association with inappropriate use of traditional knowledge have attracted international attention. Such cases are concerned with intellectual property and are often referred to as ‘biopiracy’. This is an issue involving patent protection being granted for inventions based on TK that already exists in the public domain. One such example involves a patent granted for a plant species called Hoodia.[6] The issue here was whether the San, who are the local indigenous people who had cultivated the TK relating to the invention, were to be provided a fair share of benefits from its commercialisation. Cases like these have mobilised developing countries, custodians of TK, and campaigning organizations for better protection of TK. This, for example, has led to the establishment of an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (ICG) in WIPO. Aside from the ICG, discussions of the protection of TK also occurs within the Convention on Biological Diversity (CBD) and a several more international organisations. For instance, the World Health Organization (WHO), the Food and Agriculture Organisation (FAO) and the United Nations Educational Scientific and Cultural Organisation (UNESCO).[7] Despite the multitude of discussions, the recommendations brought forward mainly focus on patent law or plant breeder’s rights law to protect TK. In comparison, the role of GIs has not obtained much attention in regards to the protection of TK.[8]
1.2 Justifying the protection of TK
Upon understanding the significance of TK and its related concerns, it is necessary to understand why TK should be protected. This section will examine the main justifications for protecting TK to provide an insight on the scope and nature of protection it requires. These points are supported by policy objectives established in the tenth session of the ICG,[9]which address the factors that any ideal protection regime for TK should incorporate. [10]
1.2.1 Cultural value
The cultural value is an important justification for the protection of TK in regards to ILCs as it is an integral part of their heritage.[11] TK is considered by many ILCs as a source of social unity, and provides a means for cohesion and survival of their community.[12] Hence, it can be said that the protection of TK is essentially the same as the protection of ILC’s cultural identity and relates to their right to cultural self-determination. On these terms, protecting TK would allow indigenous people to uphold their own values and interests in a fast developing world. The justification to protect cultural value and integrity of ILCs is in accordance with several of WIPO’s policy objectives for the protection of TK. These include the need to ‘recognise value, promote respect, promote conservation and preservation of traditional knowledge, empower holders of traditional knowledge and acknowledge the distinctive nature of traditional knowledge systems, and support traditional knowledge systems.’[13]
1.2.2 Survival of ILCs and improvement of their lives
One of the foremost justifications for the protection of TK is simply due to ILCs dependency on it for their health and livelihood. This is also addressed by WIPO’s policy objectives which include ‘meeting the actual needs of traditional knowledge holders’ and ‘promoting community development and legitimate trading activities’.[14] This implies the need for an international protection regime for TK, justified by ILCs need for basic survival and potentially for the improvement of their lives. According to WHO, up to eighty percent of the world’s population depend on traditional forms of medicine to satisfy their ‘primary healthcare needs’.[15] Although the high cost of pharmaceutical medicine may play a part in this, even more privileged populations tend to prefer more natural remedies based on TK for their ailments. However, in many developing countries, traditional medicines provide the only forms of treatment that are affordable and accessible for the poor.[16] Some traditional medicines also contribute to biomedical research, suggesting that if TK was better protected that ILCs would be able to secure a source of income by increasing TK related product exports. This may improve the economies of many developing countries and help in the development of the TK-holding communities. Aside from medicine, the economically disadvantaged of the world meet their needs for other elements of basic survival such as shelter, food and fuel from their biodiversity resources that are based on TK.[17]
1.2.3 Contribution to biodiversity
This leads onto the fact that TK is also internationally recognised in terms of preserving biodiversity. It plays a vital role in environmental management and sustainable development due to its capability to provide alternative solutions for issues relating to preserving biodiversity.[18] The value of TK in the role of conserving biodiversity derives from its essential characteristics, which is that TK exists as a ‘collective accumulation of knowledge’ and has potential for ‘innovation and adaptation’.[19] The resource management systems established by ILCs often consist of the use of bio-resources regarded for themselves as foods or medicine, which have quite a low impact on the environment in comparison to industrial agricultural practices led by biotechnology. This is due to ILC’s view to ‘increase variety of resources at their disposal’ whereas industrial agricultural practices aim for a few specific species at a large scale production.[20] Due to such reasons, the CBD has recognised the interlinking dependency between biodiversity and TK and have made efforts to afford protection of TK.[21] According to the CBD Secretariat, TK provides “substantial opportunities for identifying improved techniques for conservation and sustainable use of biological diversity”.[22] Thus, the conservation of biodiversity worldwide is a strong justification for protecting TK.
1.2.4 Prevent ‘biopiracy’
As mentioned earlier within this chapter (see section 1.1), biopiracy poses threats to ILCs with extensive consequences, as it poses negative consequences to both cultural and economic conditions of their life. Biopiracy essentially assists the decline of biological diversity and impedes on food security, whilst also hindering the lifestyle of ILCs in various ways as referred to in previous subsections of this chapter. IPRs fundamentally play a big part in relation to biopiracy as it provides the means necessary for companies to exploit the biological resources based on TK.[23] The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), under Article 27(3)(b), allows the WTO members to eliminate certain categories from patentability, including “plants and animals other than microorganisms” and also the “biological processes for the production of plants or animals other than non-biological and microbiological processes”. Moreover, Article 27(1) of the Agreement also deploys formal requirements that inventions capable of protection must be ‘new, involve an inventive step and be capable of industrial application’ in order to be patentable. Simply isolating biological material in a purified form from its natural environment is not sufficient to meet these standards. Such standards for patentability allow big corporations to obtain exclusive rights for ‘new’ varieties of plants and medical drugs that are often acquired from TK of existing biological resources.[24]
An example of where patent law and trademark law have been used to obtain benefits from a plant resource derived from TK is the case of the Kava plant. Kava is an indigenous plant from islands in the South Pacific, which has significant traditional value to the inhabitants. It is commonly used for its relaxant effects, both for medical and ceremonial purposes, for almost 3000 years. Some international companies have taken the opportunity to register trademark rights for several names associated with the Kava plant, such as ‘Kavatril’ and Kava Pure’.[25] Additionally, several patents had been granted for products deriving from the Kava plant such as for L’Oréal’s product advertised to reduce hair loss and promote hair growth.[26] This shows that modern IPRs create unequitable protective regimes that grants exclusive rights to outside individuals over TK, while simultaneously declining ILCs the means to protect it. In relation to WIPO’s policy objectives, this signifies the need for a protection regime for TK that seeks to; ‘repress unfair and inequitable uses, concord with relevant international agreements and processes, preclude the grant of improper IPRs to unauthorized parties and contribute to safeguarding traditional knowledge.’[27]
Chapter 2 – Protection of TK using GIs
Upon assessing the characteristics of TK and looking at the main justifications for the protection of TK to identify what is needed within an ideal protection regime (according to WIPO), this chapter introduces the concept of using GIs as a means to protect TK. The first section examines what makes GIs suitable in the case of protecting TK, while the latter section addresses limitations posed by GIs which indicates their insufficiency for this purpose.
2.1 Suitability of GIs for the protection of TK
A geographical indication is a distinguishing sign used on goods that have a specific geographical origin and possess, according to Article 22(1) of the TRIPS Agreement, “qualities, a reputation or characteristics that are essentially attributable to that place of origin”. Such geographical origins can refer to a “territory of a Member state, region or locality in that territory”.[28] Some examples of GIs from developing countries include Basmati rice, Thirupathi laddu and Darjeeling tea (India). Developed countries also have some popular GI’s such as Kobe beef (Japan), Champagne (France), and Parma ham (Italy).
There are various reasons why GIs are particularly relevant and considered to be suitable as an instrument for TK protection. Firstly, among the other IPRs, GIs are different as they are based on collective traditions.[29] Majority of the IPRs do not protect TK due to the notion within the TRIPS Agreement that intellectual property rights are ‘private rights’.[30] GIs, however, apply to an unlimited number of people who live and manufacture goods in a specific location that enables a certain quality or reputation due to the unique climate or soil for example.[31] GIs differ with other IPRs in that they reward reputation and goodwill that has been established by a group of producers over an extensive period of time.[32] However, producers qualifying for GI protection do not have exclusive rights over it, as other forms of IPR would grant a proprietor. GIs usually have set requirements by an association of producers in the region, and if a producer fails to meet the described standards they would lose their rights to use the GI.[33]
The second reason GIs are considered suitable for the protection of TK is the fact that GIs are mostly associated with old knowledge. The majority of existing IPRs are not suitable for the protection of TK as they are intended to benefit namely those who create new and innovative goods. However, GIs do not grant rights for new inventions, and instead reward those who have established traditional knowledge or methods arising from a geographical location.[34] They do so by also allowing evolution of such TK, which is an essential aspect for ILCs to thrive in the constantly changing world.[35] Production methods for example are allowed to change over time within the scope of protection granted by GIs, because GIs are not simply dependant on a particular method of production but recognise the reputation of particular communities without time limitations. Thirdly, many other forms of IPRs such as the patent and copyright systems grant a proprietor rights for only a specific period of time. GIs, however, can last for as long as the group producing the goods uphold their collective tradition.[36] This enables the prohibition of others from free-riding on their goodwill and reputation. Another notable factor of GIs is that it is not possible to transfer the rights freely as they are not considered to be a ‘private property’. Thus, a GI cannot be transferred, as patents can, from one rights holder to another. This makes GIs very beneficial in terms of TK as the protection they grant is associated with the geographical area from which the method or product derives from as opposed to relating to a particular proprietor. Where TK can no longer be protected under any IPRs as a result of being in the public domain such as in the case of kava, this characteristic of GIs proves this is a more suitable regime for protection.
For these reasons, GIs have the potential of granting ILCs the ability to market their TK-based products without being stifled by others free-riding and globally mass-producing the products. Such counterfeiting activities would be prohibited by GIs and cases of biopiracy within the market economy would significantly be reduced, [37] which is also in accordance to ICG’s policy objective of ‘repressing unfair and inequitable uses’.[38]
2.2 Limitations of GIs
Although GIs seem to be the most suitable form of IP protection for TK, there are also several limitations posed by GIs that indicate that not all forms of TK can be protected by GIs. Further, if a GI is obtained, the scope of protection still does not measure up to all the needs and expectations of TK holders.
2.2.1 Exclusion of certain categories of TK
Only certain types of TK that fit under the scope of protection of GIs could benefit from their use.[39] This is because, first of all, the purpose of GIs is to identify only products per se and thereby rule out all other intangible forms of TK. This would include methods, techniques and other forms such as folk music, dance or martial arts. When considering GIs in the protection of TK, what can be protected is not such intangible forms of knowledge themselves but the resulting products such as a particular form of cloth material, medicines or recordings of the music. This can prove to be undesirable as this may still enable free-riders to use the unprotected underlying knowledge. For instance, the traditional methods, techniques and know-hows used to create alternative goods that outsiders can still commercialise as long as they do not use the name of the GI. Secondly, GIs can only be beneficial for TK-based products that are associated with a particular geographical location which its qualities, reputation or other characteristics are attributable to. Therefore, a GI cannot be used if the knowledge is “scattered”[40] and not specific to only a single location as in the case of the Ayurvedic medicine system in India.[41] Such a geographical limitation is argued to be problematic in cases of TK-based agriculture products in particular as traditional methods of production would not be protected in cases where producers have simply migrated from one place to another.[42] Thirdly, in order to benefit from a GI for any TK-based product, it must possess a significant commercial reputation. As the purpose of a GI is to indicate the source of a good, if it does not have any particular good will or reputation that the consumer can relate it to, then the use of a GI would be unrecognised and meaningless. As such, many representatives of ILCs must be able to survey and prove the existence of a significant market for the TK-based product of interest.[43] This may not always be possible since the awareness of some forms of TK may not extend beyond small groups. Thus, this would exclude many TK-based products from being eligible for protection under the GI regime.
2.2.2 Inadequate scope of protection
In cases when TK-based products have been able to obtain a GI, it is still important to consider to what extent the afforded protection can provide for the needs of ILCs. A particular limitation in this context is if the name of a TK-based product is considered to have become generic, it may not benefit having a registered GI in terms of protection. Member states of WIPO are not obliged to protect GIs that have “fallen into genericity”[44]. For instance, “Camembert” for cheese has become a generic term and can now be used to describe any cheese of this type globally.[45] This is a particular limitation within the scope of protection of GIs that links with the issue that the use of GIs cannot prevent knowledge from spreading into the public domain and thus eventually becoming generic. The most significant limiting factor of a GIs scope of protection is in relation with its inability to provide a TK holder protection over offensive use of the GI. Article 22(2)(a) of the TRIPS Agreement states that outsiders who use the GI and falsely indicate that the good was produced anywhere other than the true place of origin “in a manner which misleads the public as to the geographical origin of the good” would be illegal. However, Article 22(4) states that if said GI was used together with an indication of its true place of origin, “this does not mislead the public and therefore, is not considered an infringement”. [46] The description on the product declaring the true origin of the product can use any terms such as “type”, “category”, “form” or any alternatives of these words.[47] This means that the underlying TK used to make any product can be copied and appropriated anywhere else in the world without infringing the rights afforded by a GI.
In the case of “Basmati rice”, for example, all of the aforementioned limitations within the scope of protection afforded by GIs posed problems. Basmati is a type of rice originating from the Punjab provinces of Pakistan and India. Every year, the export of Basmati is worth approximately £237 ($300), playing a major role in the lives of thousands of farmers. The conflict first began in 1997 when a US company named RiceTec Inc. was granted a patent in relation to seeds and plants, including rice lines similar to Basmati.[48] Upon requests by India and concerns raised by the USPTO, the claims relating to the Basmati rice lines were withdrawn from the patent. However the issue since then has shifted from patents to geographical indications and trademarks due to global misuse of the name “Basmati”.[49] The name spread within the public domain thereby becoming generic and causing the US Department of Agriculture and the US Federal Trade Commission to reject all collective attempts of US and Indian civil society organizations to prevent US-grown rice using the term “Basmati”. Neither of them considered labelling such as “American-grown Basmati” to be misleading[50] within the meaning of Article 22(4) of the TRIPS Agreement.
It should be noted that in regards of the limitations of the scope of protection, wines and spirits have been able to obtain a special extended protection within the GI regime. Article 23 of the TRIPS Agreement allows a more comprehensive protection of wines and spirits in particular, that even prohibits the use of terms such as “kind” or “type” to use the GI accompanied with an indication of true origin. As in the case of “American-grown Basmati”.[51] If such extended provisions were granted for TK and TK-based products, it would perhaps help in solving the issue of the current lack of protection against offensive use. However, the other issues raised in this chapter nevertheless would remain a problem.
Overall, there are a number of limitations that contribute to the fact GIs would not be able to protect all forms of TK, supporting the argument that GIs are less than ideal for the protection of TK. Despite the relative protection that GIs could provide for TK-based products, the scope of such protection is still limited as GIs are essentially signs that are used to indicate a source as marketing tools. GIs are not efficient therefore as a protection regime that can protect the underlying traditional knowledge relating to the products.[52] This indicates the need for an international sui generis system, which would cover the required objectives of a protection regime for TK more effectively.
Conclusion
Taking into account the needs of ILCs to preserve cultural value and integrity, improvement of thousands of livelihoods, economic demands and prevention of misappropriation, which is linked with the global conservation of biodiversity, it is evident that the protection of TK is important. Initially, the use of GIs for the purpose of protecting TK seems particularly suitable due to the similar characteristics between GIs and TK. GIs relatively align with the justifications for the protection of TK and many of the relevant policy objectives determined by the Secretariat of ICG. Moreover, they are particularly relevant in this context as the goods do not need to be new or innovative to be protected, the protection can essentially be perpetual, and the conferred rights cannot be freely transferable to any right holder in particular. The most significant element of GIs that makes them suitable for the protection of TK is the fact that they are based on the concept of collective rights, as opposed to serving private rights to individuals as in the case of most other IPRs. These factors are significantly beneficial and seem suitable to serve the purpose of protecting TK, however the argument in this paper shows that despite the suitability of GIs, they are not adequate enough to protect TK. While GIs may be the most appropriate system out of the existing IPRs for the protection of TK, they are not sufficient in many ways. First of all, the characteristics of GIs themselves are limiting and exclude several categories of TK from its protection such as methods, techniques and the underlying knowledge of a product itself. Further cases in which TK-based goods would be excluded or at least pose great difficulty in obtaining a GI would be if the TK is geographically scattered and not specific to one location, or TK that is not associated with a commercial reputation. Secondly, it should be noted that even when a GI has been granted, it does not afford a scope of protection that fully meets the standard needed and expected by ILCs. For example, GIs are unable to protect TK holders against offensive use of TK or prevent TK from being leaked into the public domain, which could result in the GI becoming generic and lose its right to be protected. Overall, this clearly demonstrates that the GI system could never be used as the sole protection regime for the protection of TK. GIs may be beneficial to protect TK-based products in the absence of an international sui generis system that addresses the concerns specific to TK;[53] however, GIs are not adequate to protect TK as a sole system as such.
Bibliography
Literature Review:
The Cartagena protocol and its relationship with the WTO
Introduction
Global awareness of the decline of biodiversity has exponentially increased in correlation with modern biotechnology.[54] Despite various advantageous aspects brought by the advancement of biotechnology, its potential adverse effects on the environment and human health still incite concerns. Biosafety is the notion through which such effects are addressed,[55] and refers to “the need to protect human health and the environment from the possible adverse effects of the products of modern biotechnology”.[56] The surge of international attention to concerns regarding the environment and biodiversity in the preceding decades had resulted in the enforcement of the Convention of Biological Diversity (CBD) in 1992. One of the highpoints of this convention is the development of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (CPB) in 2000, which focuses on the safe transboundary movement of genetically modified organisms (GMOs). The principal aim of the CPB is to safeguard biodiversity from any negative implications that may be caused by GMOs as a result of modern biotechnology.[57] However, the CPB is not the sole instrument regulating the movement of GMOs. Another international regime that addresses the trade related aspects of GMOs is the World Trade Organisation (WTO). However, its primary aim differs in that it seeks to counter limitations on international trade.[58] Thus, it leads to an inevitable conflict in relation to the trade of GMOs and according to Laidlaw, “harmonisation of the two agreements is highly desirable”.[59]
Despite the significance of biosafety in conserving biodiversity, it is also important to give consideration to global free trade and the risk of unjustified restrictions. This is essentially reflected in the seeming conflict between the CPB and the WTO. This review thus focuses primarily on the literature covering the debate on the relationship of the CPB with the WTO in particular. This review will proceed with the following sections; the historical background of the CPB, the key elements of the CPB including the ‘AIA’ and the Precautionary principle, and the CPB in relation to the WTO with reference to the SPS Agreement in particular.
Historical background of the CPB
The risks posed by GMOs initially became the focus of public concern in 1986 when a US research institute conducted tests on a genetically modified rabies vaccine in Argentina, without their government’s knowledge.[60] Countries started fearing that hazardous GMOs would be introduced into their territory for such research purposes. Developing countries emphasised on the need for an international regulatory framework that would help them restrict the influx of GMOs into their borders.[61] In response, in 1989 the United Nations Environment Programme (UNEP) assembled a body of experts for the purpose of forming such an international instrument, which lead to the opening for signature of the CBD at the United Nations Conference on Environment and Development (UNCED). This was held in Rio de Janeiro in 1992, and the following year the CBD entered into force as the prime international instrument addressing issues in relation to biodiversity.[62] Article 19(3) of the CBD related to living modified organisms (LMOs) in particular, ordering bound parties to establish procedures for the safe transboundary movements of LMOs. In accordance to this article, the ad-hoc Working Group on Biosafety (BSWG) was formed to initiate the negotiations for the biosafety protocol.[63] After 4 years of negotiations due to significant disagreements, the CPB was finally adopted in 2000 and came into force in September 2003.[64]
Key elements of the CPB
The CPB, which has been ratified by 170 countries to date,[65] is the first internationally binding protocol intended to ensure safe transfer, handling and use of LMOs resulting from modern biotechnology to facilitate the “conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focussing on transboundary movements.”[66]
Advance Informed Agreement (AIA)
The purpose of the CPB to facilitate biosafety protection is achieved primarily by ensuring “risk assessment, risk management, transparency and import measures”[67]. The transparency and import measures comprise the key element of the CPB, which consequently draw on the risk assessment and risk management. Article 7-12 of the CPB set up the AIA system which requires the country of export to obtain the consent of the country of import prior to sending LMOs to that country for the first time.[68] Once the receipt of the notification has been acknowledged by the country of import, they are given a certain period of time to decide whether or not to accept the LMOs. All decisions in relation to such decisions must be accompanied by a risk assessment.[69] The country of import may request for additional information, decline the import or accept it with any appropriate conditions. However, the CPB clearly states a failure to notify by the importing country does not imply consent.[70] LMOs that are to be shipped for contained use or in transit are exempt from the AIA procedure, which Laidlaw states is an “efficient way for parties to deal with noncontroversial LMOs”.[71] Similarly, Articles 11 and 18 of the CPB refer to LMOs that are considered to be commodities for “use as human food or animal feed, or in processed goods” (LMO-FFPs), such as soy or corn. These particular LMOs are not covered by the stringent AIA procedure, but instead such imports must simply be accompanied by labels that indicate they “may contain LMOs” and are not intended for release into the environment.[72] However, Tung finds that this less stringent procedure “can be considered as a compromise to the scope of the application of the AIA”.[73]
Precautionary Principle
As part of the aforementioned AIA procedure, risk assessments must be carried out with an appropriate period of observation before the first time the GMOs are introduced to the country of import.[74] Such risk assessments are generally required to be carried out in a “scientifically sound manner”.[75] However, Qureshi states that a particular factor to note in regards to the CPB, and the risk assessment in particular, is the “incorporation of the precautionary approach”,[76] as included in Principle 15 of the Rio Declaration on Environment and Development.[77] The CPB adopted the strongest expression of the principle in any international agreement so far, and is invoked in Article 10(6), which sets out that;
“Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a LMO… shall not prevent (a) Party from taking a decision… in order to avoid or minimize such potential adverse effects”.
Laidlaw states that this principle allows members “to take trade-restrictive action to prevent potential adverse effects of LMOs on biodiversity and human health”,[78] and Macmillan suggested that it permits Parties to adopt a “zero tolerance policy,” essentially enabling the restriction of all LMOs for import.[79] However, others such as Ricci find that it does not restrict trade in LMOs, but rather just ensures human and environmental health are not “jeopardised” in the process.[80]
The CPB in relation to the WTO
The WTO, in comparison to the CPB, focuses on preventing restrictions on the movement of goods, and encourages international free-trade. The inclusion of an explicit precautionary principle in the CPB therefore makes the two systems appear to be in conflict.[81] The WTO provisions require sound scientific reasoning for any restrictions imposed on a trade, however there is a lack of scientific certainty in relation to GMOs, meaning any action following the CPB may result in the breach of WTO rules according to Laidlaw. Thus, there is a clear point of debate on how these two systems relate to each other.[82]
The CPB may contrast with provisions of the WTO that are relevant to GMOs, such as of the General Agreement on Tariffs and Trade (GATT), the Agreement on Technical Barriers to Trade (TBT Agreement) and the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement).[83] According to Ricci, the SPS Agreement is most likely to interact with the CPB than other WTO agreements because of their similar objectives.[84] Both the CPB and the SPS Agreement are concerned with human and environmental health, they require risk assessments and trade decisions to be made which are ‘scientifically sound’, and recognise the importance of the precautionary principle to some extent.[85] However, the SPS Agreement in particular ensures that its provisional measures are not “arbitrary, unjustifiably discriminatory or constitute disguised restrictions on international trade”, as stated by Qureshi.[86] The most significant relevance between the CPB and the SPS Agreement is the precautionary approach. Article 5(7) of the SPS Agreement is similar to Article 10(6) of the CPB, which essentially implies that parties are not restricted from making appropriate decisions to prevent potential adverse effects of LMOs where there is a lack of scientific information or certainty.[87] However, the precautionary approach in the CPB provision can easily be invoked when there is no certain scientific basis to prove any potential risks of LMOs,[88] whereas the SPS Agreement is more stringent. The provisional measures must still be based on “available pertinent information” and only last until a more objective risk assessment can be carried out, indicating the extent to which the precautionary principle is disfavoured by the WTO.[89] Qureshi finds that the WTO has “weakened its significance” with its repeating decisions, causing scholars to suggest that the reflected precautionary principle within SPS Agreement is “eviscerated”.[90] The CPB also differs in that GMOs and GM-products are required to be labelled, meaning genetically modified foods must be distinguished from organic ones.[91] This is in conflict with the non-discrimination principle maintained by the WTO agreements, especially the SPS and TBT Agreements.[92]
The CPB attempts to address its relation to other international frameworks including the WTO in its Preamble, however according to Qureshi this was the result of an “unsuccessful attempt to achieve a compromise” between opposing negotiating groups.[93] The Preamble suggests a coherence between the CPB and the WTO by stating that trade and environment should be mutually supportive,[94] and that the CPB does not impose a change in the rights and obligations of the Parties under the other international agreements.[95] However, the Preamble additionally suggests it is “not intended to be subordinate to other international agreements”.[96] Cosby characterises this provision in relation to the CPB’s relationship with the WTO a “conflict postponed, rather than a conflict avoided”.[97] Ultimately, the relationship between the CPB and the WTO, and which of the two agreements would take priority in instances of policy conflicts remain uncertain.[98]
Conclusion
There is a difference between the WTO which requires sound scientific analysis and justification, and the CPB which has, as described by Grosko, a “relative amorphous nature” of the precautionary principle.[99] Laidlaw states that while it seems possible under the CPB to have “zero tolerance” for GMOs as indicated by Article 10(6), under the SPS Agreement such a lenient approach could never be permissible.[100] He further states that the primary objective of the WTO is to prevent undue restrictions on trade, and so its duties include considering environmental policies that may have an impact on trade.[101] Thus, it is reasonable for the WTO to prefer sound scientific justifications for any trade related decisions. Hagen and Weiner state that the CPB on the other hand expressly refers to a precautionary approach and confer “explicit rights” to act upon scientific uncertainty and rely upon non-scientific criteria.[102] Eggers and Mackenzie found the Preamble of the CPB to indicate a “complementary relationship” with the WTO and that provisions under both systems call for a “conciliatory interpretation”.[103] Some further commentators have described the CPB as a “significant breakthrough in reconciling international trade and environmental concerns”.[104] On the other hand, others such as Qureshi find the CPB to be “incomplete and lacking in any well-articulated reference to the WTO framework”.[105]Overall, the CPB is an effective system to facilitate biosafety, however any reference to its relationship with the WTO remains unclear and could lead to trade conflicts. Moreover, the uncertainty of which system would take priority where such disputes arise also remains unresolved.
Bibliography
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[2] David R Downes, “How Intellectual Property Could Be a Tool to Protect Traditional Knowledge”, [25th edn, COLUM. J. ENVTL. L. 2000] 254.
[3] Ibid.
[4] World Intellectual Property Organization (WIPO), Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), Seventeenth Session [2010].
[5] M. Pannizon and T.Cottier, “Traditional Knowledge and Geographical Indications’ Foundations, Interests and Negotiating Positions in EU” [Robert Schuman Centre for Advanced Studies, European University Institute, Florence 2005].
[6] Daniel F. Robinson, “Confronting Biopiracy: Challenges, Cases and International Debates”, [2010] 61.
[7] Sophia Twarog & Promila Kapoor, “Protecting and promoting traditional knowledge: Systems, national experiences and international dimension”, [United Nations, New York and Geneva 2004] 3.
[8] Michael Blakeney, “Protection of Traditional Knowledge by Geographical Indications”, [Int. J. Intellectual Property Management 2017].
[9] ICG (WIPO), “The Protection of Traditional Knowledge: Draft Objectives and Principles”, [Tenth Session Geneva 2006] WIPO/GRTKF/IC/10/5, 3-5.
[10] Michael Blakeney, [n 8].
[11] Fikret Berkes, Carl Folke and Madhav Gadgil, “Traditional Ecological Knowledge, Biodiversity, Resilience and Sustainability” [Amesterdam: Kluwer, 1995] 281.
[12] Graham Dutfield and Uma Suthersanen, “Global Intellectual Property Law: Commentary and Materials” [Edward Elgar Publishing, 2008] 327.
[13] ICG, [n 9].
[14] Ibid.
[15] M. Fawzi Mahomoodally, “Traditional Medicines in Africa: An Appraisal of Ten Potent African Medicinal Plants,” [Evidence-Based Complementary and Alternative Medicine 2013] 1.
[16] Teshager Worku Dagne, “Intellectual Property, Traditional Knowledge and Biodiversity in the Global Economy: The potential of Geographical Indications for protecting Traditional Knowledge-based agricultural products” [Dalhousie University 2012].
[17] Rosemary J. Coombe, “The Recognition of Indigenous Peoples’ and Community TK in International Law” [14 St. Thomas L Rev 2001] 278.
[18] Marion Panizzon, [n 1] 12.
[19] CBD Secretariat, ‘Knowledge, Innovations and Practices of ILCs’ [Subsidiary Body on Scientific, Technical and Technological Advice, Second Meeting 1996] UNEP/CBD/SBSTTA/2/7, para. 80.
[20] Russel Lawrence Barsh, “Indigenous Knowledge and Biodiversity” 75.
[21] ‘Working Group on Article 8(j)’ [Cbd.int, 2017] <https://www.cbd.int/convention/wg8j.shtml> accessed 19 March 2017.
[22] David R. Downes & Sarah A. Laird, “Innovative Mechanisms for Sharing Benefits of Biodiversity and Related Knowledge: Case Studies on Geographical Indications and Trademarks” [UNCTAD Biotrade Initiative, 1999] 4.
[23] Dagne, [n 16].
[24] Vandana Shiva, “War against Nature and the People of the South” [Chicago: Food First Books 2000] 116.
[25] Joseph B. Verrengia, “Root Effect of Kava: Stress-relieving Herb Poised for Therapeutic Stardom” [The Rocky Mountain News 1998] 54.
[26] Susette Biber-Klemm & Thomas Cottier, “Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives” [CABI 2006] 137.
[27] ICG, [n 9]
[28] C Bramley & J.F Kirsten, “Exploring the Economic Rationale for Protecting Geographical Indicators in Agriculture” [Agrekon 2007] 75.
[29] Shivani Singhal, “Geographical Indications and Traditional Knowledge” [Journal of Intellectual Property Law & Practice 2008] 733.
[30] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1994, Articles 41-61.
[31] Lori E. Simon, “Appellations of Origins: The Continuing Controversy” [Nw. J. Int’l L. & Bus. 1983- 1984] 132.
[32] David R. Downes, [n 2] 259.
[33] Louis Lorvellec, “You’ve Got to Fight for Your Right to Party: A Response to Professor Jim Chen” [5 Minnesota Journal of Global Trade 1996] 65.
[34] Thomas Cottier & Marion Panizzon, “Legal Perspectives on Traditional Knowledge: The Case for Intellectual Property Protection” [7 J.I.E.L. 2004] 380.
[35] David R. Downes, [n 2] 259.
[36] Ibid 269.
[37] Keith Eugene Maskus & Jerome H. Reichman, “International Public Goods and Transfer of Technology under a Globalized Intellectual Property Regime” [Cambridge University Press 2005] 579.
[38] ICG [n 9].
[39] Dagne, [n 16].
[40] David R. Downes, [n 2] 733.
[41] Shivani Singhal, [n 29].
[42] Dagne, [n 16].
[43] David R. Downes, [n 2] 253.
[44] ‘Geographical Indications: An Introduction’(WIPO)<http://www.wipo.int/edocs/pubdocs/en/geographical/952/wipo_pub_952.pdf> accessed 25 March 2017.
[45] Ibid.
[46] Bernard O’Connor, “Sui Generis Protection of Geographical Indications” [9 edn, Drake J. Agric. L. 2004] 381.
[47] Ibid.
[48] Bernard O’Connor, “The Law of Geographical Indications” [Cameron May 2004] 368.
[49] Ibid.
[50] Ibid.
[51] Bernard O’Connor, “Sui Generis Protection of Geographical Indications” [n 46].
[52] Philippe Cullet, “Intellectual Property Protection and Sustainable Development” [LexisNexis: Butterworths 2005] 335.
[53] Michael Blakeney, [n 8].
[54] Chidi Oguamanam, “Legal Aspects of Implementing the Cartagena Protocol on Biosafety” [10 McGill Int’l J. Sust. Dev. L. & Pol’y 2014] 137.
[55] Ibid.
[56] Cartagena Protocol on Biosafety to the Convention on Biological Diversity (CPB) 2000, art 3.
[57] Anais Kedgley Laidlaw, “Is it better to be safe than sorry? The Cartagena Protocol versus the World Trade Organisation” [36 Victoria U. Wellington L. Rev. 2005] 427.
[58] Ibid.
[59] Ibid.
[60] Aarti Gupta, “Governing Trade in Genetically Modified Organisms: The Cartagena Protocol on Biosafety” [42 Environment: Science and Policy for Sustainable Development 2000].
[61] Prince Ugochukwu Ihekoronye, “Genetically Modified Organisms: Legal Interaction between the Cartagena Protocol on Biosafety and World Trade Law – examples from South Africa, Kenya and Nigeria” [Stellenbosch University 2013] 31.
[62] C Sendashonga, R Hill and A Petrini, “The Cartagena Protocol on Biosafety: Interaction between the Convention on Biological Diversity and the World Organisation for Animal Health” [Rev. sci. tech. Off. int. Epiz. 2005] 19.
[63] Ibid.
[64] CPB, [n 3] art 1.
[65] ‘Parties to the Protocol and Signature and Ratification of the Supplementary Protocol’ [The Biosafety Clearing-House (BCH), 2017] <https://bch.cbd.int/protocol/parties/> accessed 31 March 2017.
[66] CPB, [n 3] art 1.
[67] Asif H. Qureshi, “The Cartagena Protocol on Biosafety and the WTO – Co-existence or incoherence?” [49 Int’l & Comp. L.Q. 2000] 835.
[68] Laidlaw, [n 4].
[69] Ibid.
[70] CPB, [n 3] art 15(5).
[71] Laidlaw, [n 4].
[72] Ibid.
[73] OJ Lim Tung, “Transboundary movements of Genetically Modified Organisms and the Cartagena Protocol: Key issues and concerns” [17 Potchefstroom Elec. L.J. 2014] 1739.
[74] CPB, [n 3] art 16(3).
[75] CPB, [n 3] art 15(1).
[76] Qureshi, [n 14].
[77] CPB, [n 3] Preamble and art 1.
[78] Laidlaw, [n 4].
[79] Fiona Macmillan, WTO and the Environment [1st edn, Sweet & Maxwell 2001] 180.
[80] Ezra Ricci, “Biosafety regulation: the Cartagena protocol” [3 Biosafety Interdisciplinary Network] 39.
[81] Ibid.
[82] Ibid.
[83] Paul E Hagen and John Barlow Weiner, “The Cartagena Protocol on Biosafety: New Rules for International Trade in Living Modified Organisms” [12 Geo. Int’l Envtl. L. Rev. 2000] 697.
[84] Ricci, [n 27] 39.
[85] Ihekoronye, [n 8].
[86] Qureshi, [n 14].
[87] Laidlaw, [n 4].
[88] Ibid.
[89] Ihekoronye, [n 8].
[90] Patrick J Vallely, “Tension Between the Cartagena Protocol and the WTO: The Significance of Recent WTO Developments in an Ongoing Debate” [5 Chicago Journal of International Law 2004] 369.
[91] Qureshi, [n 14].
[92] Ibid.
[95] CPB, [n 3] Preamble, para 10.
[96] CPB, [n 3] Preamble, para 11.
[97] Aaron Cosby and Stas Burgiel, “The Cartagena Protocol on Biosafety: An analysis of results: An IISD Briefing Note” [The International Institute for Sustainable Development 2000].
[98] Ihekoronye, [n 8].
[99] Brett Grosko “GE and International Law: Conflict or Harmony? An Analysis of the Biosafety Protocol, GATT, and the Agreement on the Application of Sanitary and Phytosanitary Measures” [20 Va Envtl L J 2001] 324.
[100] Laidlaw, [n 4].
[101] Ibid.
[102] Hagen and Weiner, [n 30].
[103] Barbara Eggers and Ruth Mackenzie, “The Cartagena Protocol on Biosafety” [Journal of International Economic Law 2000] 525.
[104] Edward Alden, “Greens and free-traders join to cheer GM crop deal” [Financial Times 2000].
[105] Qureshi, [n 14].
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