Thailand Law Journal 2009 Spring Issue 1 Volume 12

The issue of genetic resources flow has not been mentioned recently. Instead of this, the genetically modified organisms (GMOs) issue has become the crucial issue being debated in world forums. Academics such as Michael Hassemer state that ‘strong evidence suggests that with the growing extinction of species, traditional knowledge is also declining. What makes this extinction particularly deplorable is its invisibility’.¹⁶ The awareness of the world food shortage is resulting in the flow of genetic resources from developing countries to developed countries. Preservation and production of plant genetic resources are being undertaken to save the world from starvation. As a result, there are many new plant varieties emerging due to biotechnological development. Thus plant varieties will be problematic with regard to intellectual property protection in the following decade.

2 The Concept of ‘Plant Genetic Resources being the Common Heritage of Mankind’
The reference to crop genetic resources being the common heritage appeared in the 1980s in association with the establishment of the Commission on Plant Genetic Resources at the Food and Agricultural Organization of the United Nations (FAO).¹⁷  In 1983 the FAO conference affirmed a resolution that ‘plant genetic resources are a heritage of mankind and consequently should be available without restriction’.¹⁸ In this context, Stephen B. Brush, also states:

The crop scientists who articulated the idea of common heritage for crop resources were acculturated in science as a social system without proprietary relations over its basic resources: theories, algorithms, or methodologies (Robert K. Merton, 1973). The sociology of science in this context was described by Merton as the Communism of sciences in which concern for authorship did not imply exclusive rights. Accordingly, most crop scientists who helped establish the international framework for plant genetic resources worked in public breeding programs that released their products as public goods.¹⁹

The concept of common heritage of crop genetic resources was widely adopted, especially amongst the crop scientists and agricultural developers. In fact, crop genetic resources could never be applied to criteria of common heritage of mankind in international law. The common heritage principle of international law is explicitly included in two international treaties. These are the Agreement Governing the Activities of States on the Moon and Other Celestial 1979 and the United Nations Convention on the Law of the Sea 1982.²⁰

Another major cause of genetic resources flow from developing countries to developed countries is the view of common heritage. Thus, if genetic resources are seen to belong to all peoples, it is not necessary to allow for sharing of benefits or any protection measures. It is interesting that the concept of common heritage of mankind was introduced to apply to genetic resources, but not to other non-renewable resources, such as oil and gas. Those non- renewable resources should be taken into account more than renewable plant resources.

3 The Concept of ‘Intellectual Property Rights on Living Resources’
While there has been a general assumption that living things cannot be patented,²¹ this concept is explicitly known and accepted by intellectual property scholars.

At the end of the twentieth century, the development of biotechnology became impacted on the medical and food sectors.²² Biotechnology also offers specific new possibilities for information and interventions affecting human life.²³ To protect biotechnology, questions were raised in public debate about whether living organisms could be patented or not.²⁴ The debate includes moral considerations relating to human life, research on the human genome, animal welfare issues, the issues relating to the limits of intellectual property rights and the environmental as well as health and safety issues.²⁵ The European Union (EU) has spent decade debating this issue. Finally, they agreed to harmonise the criteria for the patentability of organic material under the Directive on the Legal Protection of Biotechnological Inventions 1998.²⁶

This article is published with the kind permission of Panumas Kudngaongarm, Professor, Ph.D. Candidate, School of Law, the University of New England, Australia. (Lecturer, School of Law, Sukhothai Thammathirat Open University, Thailand.). This article was presented at the Inaugural Conference of the Asian Society of International law: International Law in Asia-Past, Present and Future.