Global Governance: Promoting Biodiversity and Protecting Indigenous Communities Against Biopiracy

Biopiracy is the misappropriation of valuable indigenous knowledge and biodiversity resources from originating communities using Intellectual Property Rights (IPRs) to secure commercial exclusivity. Globalization of IPR legal regimes which focus on private economic development under the WTO TRIPS regime, have not promoted equitable drug discovery, nor addressed biopiracy concerns. In October 2010, UN CBD members adopted the Nagoya Protocol, which attempts to protect biodiversity and prevent biopiracy by setting rules on how nations cooperate in access and sharing benefits derived from these resources. Though potentially beneficial, the protocol does not address many challenges including needed forum for indigenous populations to have these conflicts adjudicated, adequate penalties to disincentivize biopiracy, specific mechanisms to ensure assistance to developing countries in implementing sustainable biodiversity development, and mechanisms to direct resources to improve health in these communities.  To address these deficiencies a joint WTO-WHO committee is proposed which would act as an independent forum to address claims of biopiracy.  Penalties would include loss of sales profits and allowing domestic production without IPR barriers under the TRIPS Doha public health exception. In addition, a user fee system for private industry bioprospecting activities would be implemented and would underwrite the Joint Committee as well as provide resources for a Global Biodiversity Fund.  This fund would assist developing countries to create sustainable biodiversity development programs, provide economic benefits education to indigenous peoples in a culturally competent way, and fund innovative efforts at private-public partnerships to share benefits of biodiversity development and promote global justice and health infrastructure.