Compensation for Use of Biological Resources under the Convention on Biological Diversity: Compatibility of Conservation Measures and Competitiveness of the Biotechnology Industry
Goldman, Karen Anne, Law and Policy in International Business
In a dramatic reversal, the United States on June 4, 1993, signed the Convention on Biological Diversity (Biodiversity Convention or the Convention), an agreement aimed at conserving the diversity of plant and animal life.(1) Exactly one year before, the United States was the only nation at the United Nations Conference on Environment and Development (UNCED) to decline to sign the Biodiversity Convention.(2) UNCED, popularly known as the Earth Summit, was the largest gathering of world leaders in history, with representatives of 178 nations in attendance at the meeting held in Rio de Janeiro.(3) Although world leaders agreed that the environment is an international issue of paramount importance, the accords reached on both climate change and biodiversity fell short of obtaining commitments to strong measures necessary to combat these problems.(4) Disagreements were particularly sharp along North/South lines. Perhaps because of such divisiveness, the Biodiversity Convention provides only a broad framework for international interaction, and leaves open many specifics as to how it will be implemented.
U.S. participation in the Biodiversity Convention represents an important step in international cooperation to protect biodiversity. Likewise, it presents an opportunity to refine the agreement. The United States and other developed nations generally objected to economic provisions of the Biodiversity Convention that required substantial financial commitment, either by direct financial contribution(5) or by shifting the balance in the exchange of resources and technology.(6) Moreover, many viewed the Convention's commitments for protecting biodiversity as inadequate.(7) To state their position with regard to ambiguous provisions, and as a means of gaining an appropriate implementation of the Biodiversity Convention, some developed countries issued interpretive statements on the Convention's financial and intellectual property provisions.(8) The United States also intends to issue such a statement.(9) Thus, in signing the Convention, the United States may clarify the interpretation of ambiguous provisions which previously stood in the way of its signing the Convention, and, at the same time, strengthen the Convention's environmental measures.
One aspect of the Biodiversity Convention that prompted considerable U.S. opposition was its requirement of compensation for the use of biological resources and transfer of biotechnology.(10) These provisions were designed to address the economic situations of the developing countries as well as to facilitate sustainable development and preservation of biodiversity. These provisions are vague, and, according to some interpretations, could impair the development and international competitiveness of commercial biotechnology already under way in developed nations.(11) If so, the impact of these provisions would fall disproportionately on the United States, because it leads the world in commercialization of this technology.(12)
The biotechnology industry is viewed as a key element of future technological and economic development in the United States.(13) Modern biotechnologies like genetic engineering are expected to have a major effect on medicine, agriculture, and the environment. Biotechnology is an important factor in the international competitiveness of related businesses, such as the pharmaceutical and agricultural industries.(14) Thus, the adoption of policies that promote the development and competitiveness of this industry has rightly been viewed as a national priority.(15)
This Note explores the Biodiversity Convention's biotechnology provisions, addressing their impact on developing and developed countries, the biotechnology industry, and the preservation of biodiversity. As a preliminary matter, the Note presents the extensive global loss of biodiversity that is currently occuring, and the aesthetic, environmental, and economic reasons for minimizing further loss. …