Bioprospecting, marine scientific research and the patentability of genetic resources
MLS Rechtsanwaltsgesellschaft mbH, Bremen/Berlin
This paper is to honour the twentieth anniversary of the teaching career in international law of Professor Dr David Attard. I am thankful for his inspiration and his professional support. I am looking forward to establishing new initiatives and to continue cooperation in the next 20 years of his career.
The need for marine scientific research on marine biological and genetic resources as well as for cooperation of various organizations that are dealing with marine genetic resources is emphasized repeatedly.1
In this context the distinction between bioprospecting of and marine scientific research on marine genetic resources, not only in areas beyond national jurisdiction, becomes important regarding the applicability and scope of Part XIII of UNCLOS.2
Another issue of importance is the question of ownership regarding the results from bioprospecting, e.g. genetic resources.
This chapter touches these issues and tries to summarize some recent developments.
What is bioprospecting?
There is no internationally agreed definition of the term ‘biodiversity prospecting’, commonly known as ‘bioprospecting’. The term was first defined in 1993 as ‘the exploration of biodiversity for commercially valuable genetic resources and biochemicals’.3 Since this very first definition, ‘bioprospecting’ has been defined
* The author wishes to acknowledge contributions by Dr Elisabeth Batsara, LL.M.Eur.
1 UN Doc A/62/66 (12 March 2007), para. 137 and UN Doc A/63/79 (16 May 2008), para. 33.
2 United Nations Convention on the Law of the Sea, 1982.
3 W. V. Reid et al. (eds), Biodiversity Prospecting: Using Genetic Resources for Sustainable Development (Washington, DC: World Resources Institute, 1993).
‘Biodiversity prospecting’ or ‘bioprospecting’ is the exploration of biodiversity for commercially valuable genetic and biochemical resources. It can be defined as the process of gathering information from the biosphere on the molecular composition of genetic resources for the development of new commercial products.5
‘Genetic Resources’ are defined by the CBD as ‘genetic material of actual or potential value’ where ‘genetic material’ means ‘any material of plant, animal, microbial, or other origin containing functional units of heredity’.6
Regardless of which definition is chosen, the main element of bioprospecting which is common to all definitions seems to be its connection to commercial activities. The UN Secretary-General commented in his 2007 Report that:
While there is no universally agreed definition of bioprospecting, the term is generally understood, among researchers, as the search for biological compounds of actual or potential value to various applications, in particular commercial applications … In recent years, the term ‘biodiscovery’ has been preferred to ‘bioprospecting’ to put greater emphasis on the investigative aspect of the research and less on the idea of future exploitation … 7
It is, however, not clear at which stage marine scientific research ends and bioprospecting begins; some definitions also cover the subsequent stages of the search and sampling of resources, including further application and development,8 while other definitions restrict bioprospecting only in the searching of the resources delineating bioprospecting from biotechnology.9
How is ‘bioprospecting’ distinguished from marine scientific research?
It is difficult to make a clear distinction between bioprospecting and marine scientific research. The distinction becomes even more difficult from the absence
4 Convention on Biological Diversity, 1992.
5 CBD Doc UNEP/CBD/COP/5/INF/7, 20 April 2000.
6 Art 2.
7 UN Doc A/62/66, Report of the Secretary-General on Oceans and the Law of the Sea, 12 March 2007, §150.
8 S. Arico and C. Salpin, Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects (Yokohama: United Nations University, Institute of Advanced Studies, 2005), p. 15.
9 K. Hall, Bioprospecting Background Paper: What is Bioprospecting and What are our International Commitments? (Auckland: University of Auckland, New Zealand, 2003), §2.2.
of a precise definition of marine scientific research in international law. A definition of marine scientific research is absent even in UNCLOS which regulates the legal status and the conduct of marine scientific research. Although a number of different definitions were discussed to be included in Article 238 UNCLOS, it seems that states decided to avoid a definition of marine scientific research in order not to restrict their activities.10
Nevertheless, despite the absence of an official definition of marine scientific research in UNCLOS, the Convention describes its main elements. Based on those elements the ‘Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the Conservation and Sustainable Use of Genetic Resources on the Deep Seabed’ which was prepared in 2003 by the CBD Secretariat subject to the Decision II/10 of the Convention’s Conference of Parties11 has noted that:
In the absence of a formal definition, marine scientific research could be defined as an activity that involves collection and analysis of information, data or samples aimed at increasing mankind’s knowledge of the environment, and is not undertaken with the intent of economic gain.12
The above mentioned definition implies that marine scientific research in the context of UNCLOS equates to ‘pure’ marine scientific research which is not connected to commercial activities and therefore differs from bioprospecting.13 The same approach was followed by the 2004 Report of the UN Secretary-General on Oceans and the Law of the Sea which is yearly submitted to the UN General Assembly.14 In particular, the Report makes an explicit distinction between ‘ “pure” academic marine scientific research’ and ‘ “applied” research carried out for commercial purposes, usually called “bioprospecting” ’.15 Emphasizing on the marine scientific research’s characteristics of transparency and openness, as well as on its obligation to disseminate the acquired information and data and to publish the results, the Report underlines the need to distinguish marine scientific research from ‘other investigative marine activities with a commercial component, such as prospecting … which may involve confidentiality or proprietary rights’.16
10 See the negotiating history of Article 238 UNCLOS in M. Nordquist et al. (ed.), United Nations Convention on the Law of the Sea 1982, A Commentary (Dordrecht: Martinus Nijhoff Publishers, 1991), vol. IV, pp. 438–50.
11 Decision II/10 of the 2nd COP to the CBD, Jakarta, Indonesia, 6–17 November 1995.
12 CBD Doc UNEP/CBD/SBSTTA/8/INF/3/Rev.1, 22 February 2003, §47.
13 Op. cit., Arico and Salpin, fn 8, p. 16.
14 UN Doc A/59/62, A ‘Report of the Secretary-General on Oceans and the Law of the Sea’, 4 March 2004.
15 Ibid., §261.
16 UN Doc A/59/62, A ‘Report of the Secretary-General on Oceans and the Law of the Sea’, 4 March 2004.
In the 2007 Report of the UN Secretary-General a new approach was introduced:
In the absence of a formal definition, it has been suggested that marine scientific research under UNCLOS encompasses both the study of the marine environment and its resources with a view to increasing humankind’s knowledge (so-called ‘pure’ or ‘fundamental’ research), and research for the subsequent exploitation of resources (so-called ‘applied’ research).
In practice, however, it is still not easy to clearly differentiate between marine scientific research and bioprospecting since both of them are often engaged in the investigation of genetic resources. This is even intensified by introducing the term ‘biodiscovery’. It has been argued that ‘research only becomes biodiversity prospecting once the researchers spot the commercial potential and conduct their investigations with this in mind’.17 The application of this criterion is, however, in many cases impossible and highly subjective. There are first of all a number of universities or scientific research institutions which are involved in collaborative research with industry.18