5.22. The representative of South Africa said that there was a fundamental conflict between the spirit and objectives of the CBD and the TRIPS Agreement. Three areas of conflict were identifiable based on the objectives of the two agreements. Firstly, Article 3 of the CBD provided that states had sovereign rights over their biological resources and the TRIPS Agreement overlooked states' sovereignty but recognized private IP rights over those resources. Secondly, the CBD provided states with an opportunity to demand sharing of the benefits arising from the commercial use of biological resources while the TRIPS Agreement negated that legal authority. Thirdly, the CBD was aimed at reducing biopiracy by requiring prior informed consent whereas the TRIPS Agreement did not have such a requirement, which meant that patent applications could be submitted over biological resources or traditional knowledge of certain local communities in any other countries. The TRIPS Agreement recognised patent rights on the basis of novelty, but did not take into account traditional knowledge and cultural practices. He said that there was a need to avoid erroneously granted patents for inventions that involved the use of genetic resources and related traditional knowledge. There was also a need to secure compliance with national access and benefit-sharing regimes. It was clear that the implementation of the TRIPS Agreement might threaten the preservation of biological resources and traditional knowledge.
5.23. Referring to Article 16.5 of the CBD that IPRs must not conflict with the sustainable use of biodiversity, he said that what could aid in reconciling the two agreements was a proper legal review of both agreements with the aim of making amendments where necessary to ensure mutually supportive application. Under the current review of Article 27.3(b) of the TRIPS Agreement, amendments could be made to incorporate the CBD objectives into the TRIPS Agreement in order to preserve biodiversity, prevent biopiracy and include the protection of local community rights in accordance with the spirit and purport of the CBD.
