Multiple similarities between international approaches for the management of the ocean regime and the common gene pool
[ Page 863-864 ]
As a summary, the chart below offers a quick comparison of important provisions of the United Nations Convention on the Law of the Seas (UNCLOS), the Trade Related Intellectual Property Rights (TRIPs) and the Convention on Biological Diversity (CBD). As discussed above, access to the sea and seed ranges from delimitation of private property under UNCLOS to allowing full privatization under TRIPs to reaffirming national control under the CBD. The extent of the enclosure against access is most serious for TRIPs and could potentially be legalized for all seeds and plants. Sustainable use of resources is a priority for UNCLOS and the CBD but is not even mentioned in TRIPs. Similarly, while it has been left undefined, both UNCLOS and the CBD promote benefit sharing, while TRIPs does not mention it. TRIPs is also the most narrow in its approach to rights, mainly recognizing individual rights. UNCLOS is the most ambitious with its principle of the common heritage of mankind giving equal rights to all beyond the exclusive economic zones (EEZs) of 200 nautical miles. The CBD enshrines community and farmers' rights (social group rights) as privileged over individual rights for seeds and plants, which belong to the common heritage of local communities. Finally, UNCLOS employs an international authority as well as legal adjudication for governance. TRIPs relies on national enforcement, with dispute settlements to follow administrative panels' rulings that are arrived at without full disclosure or the ability to cross-examine the opponent. The CBD also relies on national enforcement' with the condition that prior informed consent must come from the communities who cultivated the plant. "National" enforcement, therefore, is modified by the proviso that local communities participate in drafting agreements about seed exchange and benefit sharing, including devising local community trusts.
"International Law of the Sea/Seed: Public Domain versus Private Commodity
." Natural Resources Journal
. Vol. 44, No. 3 (Summer 2004): 841-866. [ More (6 quotes) ]
The negotiations and compromises that led to the development of UNCLOS were a watershed for the development of international law and could serve as a model for the development of similar regimes for the governance of other global commons, including outer space, cyberspace, and the genetic pool.