Séquençage des données issues des ressources génétiques : trouble-fête du régime international d’accès et de partage des avantages du Protocole de Nagoya
(2021) Annales de Droit de Louvain : revue trimestrielle — Vol. 83, n° 2, p. 381-432 (2021)
Files
AnisBendimred_ChristineFrison_Séquençagedonnéesressourcesgénétiques.pdf
publié
Open Access - Adobe PDF
- 2.28 MB
Details
- Authors
- Abstract
- (en) Biodiversity constitutes a great wealth for humanity. The genetic resources that compose it allow, thanks to the information they contain or are associated with, the development of innovations that can be protected by intellectual property rights. In the interest of equity and biodiversity conservation, the Convention on Biological Diversity (hereinafter, the CBD) emerged in 1992 and contributed, with its Nagoya Protocol, to the establishment of an international regime on access to genetic resources and benefit sharing (hereinafter, the ABS regime). Thus, a user of a genetic resource must obtain the prior consent of the country providing the resource in order to use it, and must agree on terms and conditions for the sharing of benefits arising from such use with the providing country. The advancement of digital sequencing technologies is challenging the already fragile framework of the international regime on access to genetic resources and benefit sharing. Indeed, an immeasurable amount of genetic data available in widely accessible databases makes the use of « tangible » genetic resources for research and development activities obsolete. These genetic data are called Digital Sequence Information (DSI) in the CBD forum. And these have raised several doubts, some legitimate, some hypocritical, about their status and relationship to the ABS regime. The question is to what extent digital sequence information is covered by the ABS regime, whether its use is equivalent to that of tangible genetic resources, and whether the benefits arising from its use should be shared under the ABS regime. If so, in what manner. The first part of this paper provides an overview of the international ABS regime (including mechanisms specific to certain genetic resources such as seeds or marine genetic resources) and its relationship to intellectual property rights in order to understand the mechanism of commodification of genetic resources and the role played by the dematerialization of life. The second part exposes the divergences of the Parties to the CBD and the Nagoya Protocol. A clarification of “DSIs”, their uses and potential impacts on the international ABS regime as provided for in the CBD and its Protocol is proposed in Part III in order to inform the legal interpretation of the CBD and the Nagoya Protocol that will be made in Part IV. This legal interpretation of the two instruments, in accordance with the rules of interpretation codified in Article 31 of the Vienna Convention on Treaty Law, makes it possible to identify the extent to which DSIs are affected by the Nagoya Protocol and the CBD. It falls under the lege lata and provides internal normative criteria that allow us to consider the lege feranda by setting out some options in Part V. Of course, since a solution to the problem posed by DSIs could not be envisaged by omitting one of the above-mentioned dimensions (economic, scientific, philosophical-ethical, etc.), this last part simply lists the possible options and invites all stakeholders to an inclusive and open negotiation.
- Affiliations
Citations
Frison, C., & Bendimred, A. (2021). Séquençage des données issues des ressources génétiques : trouble-fête du régime international d’accès et de partage des avantages du Protocole de Nagoya. Annales de Droit de Louvain : revue trimestrielle, 83(2), 381-432. https://hdl.handle.net/2078.5/101975 (Original work published 2021)