How to Break the Deadlock Preventing a Fair and Rational Use of Biodiversity

Sixteen years after the adoption of the Convention on Biological Diversity (CBD), the hopes in successful exploitation of genetic resources for the benefit of biodiversity‐rich host countries, as well as of humanity at large, have not materialized. Instead of aiming all efforts at achieving “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources”, the defined objectives of the CBD, based on the logical pattern that benefit sharing presupposes a generation of benefits, which in turn presupposes successful utilization of genetic resources, the international debate is captured by more or less politicized and fruitless debates as to how to anchor internationally in patent law a requirement of indication of origin of biological material. Here some reflections on the recent negotiations within the World Trade Organization and the World Intellectual Property Organization are offered. However, the main focus is on national access and benefit‐sharing legislation of some biodiversity‐rich countries, which although is the key for achieving the CBD objectives, has not been paid the attention it necessitates. Based on a catalogue of questions of high practical importance, laws of Brazil, India, Peru, the Philippines, South Africa and some other countries are examined and suggestions made as to how to overcome the overall detrimental existing deadlock.