2.1. The Principle of Permanent Sovereignty over Natural Resources

Permanent sovereignty over natural resources is a fundamental principle of international lawFootnote ¹⁸ based on the sovereign equality of states. It has found expression in customary lawFootnote ¹⁹ and in Principle 21 of the Stockholm Declaration,Footnote ²⁰ which coupled it with the obligation to ensure that activities under a state’s jurisdiction or control do not cause harm to the environment of other states or of areas beyond national jurisdiction. With the increase in global environmental concerns over the past decades, sovereign rights have been continuously confined in line with the realization that ‘the traditional notion of […] permanent sovereignty, does not reflect the reality of the biosphere as an organism which is oblivious to borders created by man’.Footnote ²¹ Similarly, developments in human rights law, the law of the sea, international economic law, and environmental law have led to states being increasingly accountable for their resource management.Footnote ²² This necessitates a redefinition of the principle of permanent sovereignty over natural resources to include further state responsibilities.Footnote ²³

Despite the inclusion of an exact copy of Principle 21 in its Article 3, the CBD itself reflects the above trend to confine state sovereignty for the good of humanity. It does so by specifically prescribing certain conservation policies in Articles 6 to 10 and by establishing an access and benefit sharing system.Footnote ²⁴ Most importantly, though, the CBD qualifies sovereign rights over plant biological resources through the notion of CCH.

2.2. The Influence of the Common Concern of Humankind Concept

The CCH concept is included in the CBD’s Preamble and could thus be regarded as having limited value in qualifying the substantive right of states’ permanent sovereignty. However, Article 31 of the 1969 Vienna Convention on the Law of Treaties (VCLT),Footnote ²⁵ reflecting customary law,Footnote ²⁶ prescribes that a treaty is to be interpreted in its ‘context’, including its Preamble, and ‘in the light of its object and purpose’. Applying such treaty interpretation methods, the CCH concept is argued to place an important limitation on sovereign rights by shaping both the context of the CBD as well as its object and purpose as set out below. As a result, whilst plant biological resources as such remain subject to permanent sovereignty, their management does not.

2.3. Obligation to Conserve Plant Biodiversity on Behalf of Humankind

The presence of the CCH concept in the Preamble to the CBD shifts the position of States Parties towards assuming functions ‘corresponding’Footnote ³⁶ to the will of humankind. The CCH concept prescribes a management aim (conserving plant biodiversity) to be pursued by states in the interest of humankind. As Kiss highlights, this implies the need to strike a balance between the concern of the international community and state sovereignty:

This trusteeship dimension underlines one of the central differences between the CBD and TRIPS. The CBD, in common with most environmental or human rights agreements, has no reciprocity component. In contrast, TRIPS is based on reciprocal favourite treatment of WTO Member States, regardless of consequences for societies or humanity at large.Footnote ³⁸ A breach of TRIPS can be met with retaliation, whereas a breach to conserve plant biodiversity by one state can hardly be met with the same action by another state. However, classifying plant biodiversity conservation as a CCH requires states to consider their obligations towards humankind when acting upon reciprocal treaty obligations.

Adding an external dimension, Scholtz suggests the fusion of permanent sovereignty and CCH establishes ‘custodial sovereignty’, implying that ‘a state is the custodian of its global environmental resources and that other states have an expectation that the relevant state will protect these resources for the whole of humankind’.Footnote ³⁹ This element of obligation is reflected in the fact that, in its current application, the CCH concept focuses on resources that are in need of restorative action. Thus, its focus lies on the ‘equitable sharing of the burdens of cooperation and problem solving’.Footnote ⁴⁰

The precise parameters of the notion of CCH are yet to crystallize though the custodial, or trust, analogy reappears in the literature. Sand highlights that reaffirming permanent sovereignty over natural resources is not analogous to ownership.Footnote ⁴¹ Instead, in light of the CCH concept, he notes:

Sand suggests that where such a trustee relationship has been created through direct consent to a treaty regime, as is the case for plant biodiversity, the trusteeship obligations are compatible with state sovereignty, provided sovereignty is exercised in accordance with the interests of the beneficiaries and the terms of the trust.Footnote ⁴³ In the present case, such interest is the conservation of plant biodiversity.

A similar treaty-based application of CCH can be found in the United Nations Framework Convention on Climate Change (UNFCCC).Footnote ⁴⁴ More subject areas can be expected to follow. Indeed, Brown Weiss suggests freshwater resources should be recognized as a CCH,Footnote ⁴⁵ whilst the Earth Charter expanded the scope by recognizing ‘the global environment with its finite resources is a common concern of all peoples’.Footnote ⁴⁶ It remains to be seen whether future applications of the concept could lead to, as Sand describes, a form of public trusteeship based on customary law.Footnote ⁴⁷ Such a controversial option could extend the obligation to conserve plant biodiversity to all states.

2.4. Potential Future Development of the Common Concern of Humankind Concept

Repeated usage of the CCH concept in treaty regimes could clarify its legal ramifications and contribute to the development of a customary framework.Footnote ⁴⁸ Moreover, its inherent focus on universal challenges makes the CCH concept prone to develop into an obligation erga omnes. Obligations of a state towards the international community as a whole, namely obligations erga omnes, Footnote ⁴⁹ are especially concerned with environmental matters.Footnote ⁵⁰ In fact, in his much quoted dissenting opinion in the ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, Judge Weeramantry asserted that ‘the environment, the common habitat of all Member States of the United Nations, cannot be damaged by any one or more members to the detriment of all others’.Footnote ⁵¹ The International Law Commission, too, has decided to focus on erga omnes obligations in the environmental context.Footnote ⁵² Anticipating further developments, Brunnée highlights that the notion of CCH ‘identifies certain types of environmental degradation as of concern to all, which would appear to imply that obligations are owed erga omnes’.Footnote ⁵³

In the biodiversity context, recognizing an erga omnes and customary status of the obligation to conserve plant biodiversity on behalf of humankind could further affirm the absence of reciprocity in this obligation and increase its importance in competing with other treaty obligations, such as protecting private IPRs. Such developments are not unthinkable given the status of the CBD as one of the most widely accepted international agreements.

In its present usage, however, the CCH concept is a treaty obligation binding all States Parties to conserve biodiversity on behalf of humankind. Importantly, this does not affect ownership of plant biological resources per se. Instead, it establishes a long-term goal for national resource management policies, namely plant biodiversity conservation. States are the primary actors charged with implementing the relevant management policies in the interest of mankind. Similarly, IPRs do not establish absolute ownership over plant varieties either, but may be understood as a way to manage plant biodiversity.

3.1. The Relevant Intellectual Property Rights

Two types of IPR are relevant for this discussion: patents and plant variety rights. Neither of these confers absolute ownership. Instead, both establish a temporary rightFootnote ⁵⁶ to exclude unauthorized persons from, for example, ‘making, using, offering for sale [or] selling’ the protected variety.Footnote ⁵⁷ Thus, IPRs can be seen as a form of plant biodiversity management, construed around rights similar in part to those accompanying ownership.

Patents create an intangible right in the idea involved in an invention. They can refer to specific plant varieties or to plant phenotypic or genotypic characteristicsFootnote ⁵⁸ and include, for instance, discovered information within genetic sequences or the process to isolate a particular trait of a plant.Footnote ⁵⁹

Plant variety rights, in contrast, are rights in tangible, organic material forming a new plant variety, and may be granted to the person who ‘bred, or discovered and developed, a variety’.Footnote ⁶⁰ The 1961 International Convention for the Protection of New Varieties of Plants (UPOV Convention)Footnote ⁶¹ established the International Union for the Protection of New Varieties of Plants (UPOV), which currently counts 70 members.Footnote ⁶² Its 1991 amendment includes a breeders’ exemption, making a protected variety freely available for further breeding and research if this results in a genuinely new variety, as opposed to a variety essentially derived from the protected one.Footnote ⁶³ Despite a growing membership of the UPOV, TRIPS has been at the centre of attention in the debate on IPRs over plants and related processes, not least because its ratification is compulsory for seeking membership of the WTO.

3.2. Limited Discretion for WTO Member States

TRIPS requires states to make patents available for ‘inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application’.Footnote ⁶⁴ The agreement does provide for certain exceptions which, on the face of them, might seem to grant states sufficient power to exempt biological resources. However, there are several significant limitations.

The first exception is contained in Article 27(2) TRIPS, which declares that:

This provision applies only when the commercial exploitation of an invention is to be prevented. Thus, the aim is not to simplify widespread public access to a commercialized invention, but to prevent commercialization altogether based on grounds of ordre public or morality.Footnote ⁶⁵ The provision expressly recognizes the importance of protecting the environment and plant life or health. However, the terms ‘ordre public’ and ‘morality’ are vague and undefined.Footnote ⁶⁶ Moreover, Article 27(2) only concerns the exclusion of particular inventions rather than categories, which are addressed in Article 27(3).Footnote ⁶⁷ This is likely to require a case-by-case assessment if states apply the provision to limit patentability. Overall, these exceptions are unlikely to allow states to derogate from the spirit of the treaty, which gives full IPR protection over living organisms.Footnote ⁶⁸

More importantly, though, Article 27(3)(b) TRIPS provides for an exception from patentability for ‘plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes’. In other words, micro-organisms, as well as non-biological and microbiological processes, which form the ‘cornerstone of the biotechnology industry’,Footnote ⁶⁹ should be protected by patents. Moreover, those matters covered by the exception – namely plants, animals, and essentially biological processes for the production of plants or animals – are not fully exempted from patent law. The provision merely lists them as exemptions that states ‘may’ apply, thereby principally allowing the patentability of life forms, a highly morally contentious issue. In 1999, Kenya argued on behalf of the African Group that Article 27(3) TRIPS ‘contravene[d] the basic tenets [of] patent laws’, namely that ‘substances and processes that exist in nature are a discovery and not an invention and thus are not patentable’.Footnote ⁷⁰ Instead, it called for the States Parties to recognize that living organisms and their parts cannot be patented.Footnote ⁷¹

Lastly, Article 27(3)(b) also explicitly regulates IPRs over plant varieties. TRIPS favours patents, yet provides for ‘the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof’.Footnote ⁷² Such sui generis system is likely to include plant variety rights under the 1991 amendment of the UPOV Convention.Footnote ⁷³ Consequently, TRIPS offers a choice of means, yet unambiguously requires its parties to protect plant varieties. TRIPS thus forces the recognition of IPRs in an area that was previously considered to be in the public domain. This shift is highly controversial, as is illustrated by the fact that the drafters only agreed to the provision on the condition of it being expressly subject to an early review. The review scheduled for 1999 resulted in a heated debate that is still ongoing. In fact, the 2001 Doha Declaration explicitly includes discussion on the ‘relationship between the TRIPS Agreement and the Convention on Biological Diversity’ in the review.Footnote ⁷⁴ A decision on the review of Article 27(3)(b) TRIPS could hold the key to achieve greater flexibility for States Parties and to give effect to their obligations towards humankind.

3.3. Weighing Public Interest: Theory vs. Practice

Interestingly, it is the very objective of TRIPS that IPRs:

Thus, taking into account public interests and concerns is anything but alien to the TRIPS regime, at least in theory. In fact, enhancing public social welfare is the ultimate aim behind an instrumentalist philosophy of IPRs.Footnote ⁷⁶ Nonetheless, in practice, WTO Member States have a very limited ability to balance public and private interests.

A central reason is that TRIPS lays down minimum standards of IPR protection that states are obliged to grant,Footnote ⁷⁷ whilst narrowly defining the few exceptions that states may exercise in the public interest. This restricts the freedom of states to interpret TRIPS and distorts the reality that IPRs create an artificial scarcity through temporary monopoly rights granted by the state as an incentive to fuel innovations that are in the interest of the public.Footnote ⁷⁸ The pronounced focus on private rights creates an imbalance in their favour and pushes states into being executors of private property protection laws with little leeway to take public interests into account.

The minimum protection standard has also legitimized the WTO dispute settlement bodies, as supranational entities, to make decisions over the balance struck by states between public and private interests. This disregards the legitimacy of such balance achieved through democratic decision-making procedures within states. Moreover, as Picciotto highlights, whilst some WTO rules recognize the need for flexibility in national judgment, TRIPS does not. The only standard of review against which the dispute settlement panels and the WTO Appellate Body assess national intellectual property measures is the ‘least trade restrictive’ standard of the WTO regime itself:Footnote ⁷⁹

Certainly, the dispute settlement panels will not accept conflicting state obligations under TRIPS and the CBD as a justification for non-compliance.Footnote ⁸¹

An additional hurdle for public concerns to justify restrictions to IPRs is Article 34 TRIPS, which reverses the burden of proof in disputes over patented processes, requiring the defendant to prove that no existing patents have been infringed. This demonstrates the bargaining power of the TRIPS regime to derive from the WTO enforcement mechanism. The prospect of dispute settlement proceedings and potential trade sanctions can, in practice, influence the flexibility of states to interpret TRIPS provisions.

To improve the balance between public and private interests, Helfer proposes adopting the principle of the ‘margin of appreciation’ in WTO practice and jurisprudence.Footnote ⁸² This would ‘grant states the leeway to experiment with different models of protection until an international consensus emerges’.Footnote ⁸³ This would, indeed, be in line with the objectives of intellectual property law. If applied broadly, such standard could support states in meeting their obligation under the CBD, namely to ensure that IPRs do not run counter to the objective of conserving biodiversity on behalf of humankind.

At present, however, TRIPS confers little discretion upon its States Parties. Consequently, whilst the notion of public interest is, in principle and to varying extents, included in both treaties, the obligations of States Parties differ greatly under both regimes. Whilst TRIPS, in its current form, ultimately provides for the privatization of plant biodiversity with limited discretion for exceptions, the CBD recognizes the notion of CCH, which charges states with the protection of plant biodiversity on behalf of humankind. This obliges them to test every option to manage plant biodiversity against the aim of protecting it.

4.1. Can Intellectual Property Rights Further the Protection of Plant Biodiversity?

Scholars who argue affirmatively view TRIPS as promoting the technical innovation necessary to maintain plant biodiversity.Footnote ⁸⁴ Similarly, they assert that IPRs create an economic incentive to preserve plant biodiversity and to compensate the host state and local custodians for use of their plant biological resources.Footnote ⁸⁵ This is because, once faced with the prospect of economic gain, state authorities, biotechnology corporations and others have a direct interest in the preservation of what could be the basis for future IPRs.

This is counter-argued by scholars who highlight the possibility of IPRs being detrimental to trade in that they can allow IPR holders to temporarily stop the transfer of technology.Footnote ⁸⁶ The reason is that IPRs are designed to ‘create an incentive to generate new information, the distribution of which is in the public interest, [...] by restricting access to the information created’.Footnote ⁸⁷ Based on this paradox, IPRs are sometimes said to be anti-innovative.Footnote ⁸⁸ In the plant biodiversity context, this can mean that patenting specific traits in plant biological resources ‘may limit further research and breeding, including in crops essential for food security’.Footnote ⁸⁹ Similarly, a joint study by the United Nations Conference on Trade and Development (UNCTAD) and the International Centre for Trade and Sustainable Development (ICTSD) highlights the fear that IPRs may bar farmers from reusing saved seeds, which not only prevents them from producing further plant varieties, but also endangers their economic survival.Footnote ⁹⁰

IPRs are often argued to be detrimental to plant biodiversity because of their exclusive focus on plant biological resources of high commercial value. This is argued to have led to a decline in overall plant biodiversity.Footnote ⁹¹ The phenomenon has been particularly pronounced in the agricultural sector, where IPRs are said to ‘heavily favour industrial monoculture agriculture based on proprietary seeds that may contain patented genetic traits’.Footnote ⁹² This follows from the monetary incentive of IPRs, namely to generate financial profits by temporarily holding a monopoly over the commercialization of a protected invention. As Correa argues, ‘it is in the logic of monopoly to charge as high a price as the market can bear, with the purpose of maximizing profits’.Footnote ⁹³ This focus on financial profits from monocultures is further exacerbated by the majority of private rights over plants and related processes being held by a few corporations in the seed industry. De Janvry, adviser for the World Development Report 2000–01, points out that in 1999, 67 per cent of the patents on a certain type of herbicide tolerant crop were held by the largest six corporations in the industry.Footnote ⁹⁴ Of those patents, 75 per cent were obtained through acquisitions of subsidiary biotechnology and seed companies.Footnote ⁹⁵ The Commission on Intellectual Property Rights highlights that such speed of concentration in the sector raises ‘serious competition issues’ resulting in ‘considerable dangers to food security’,Footnote ⁹⁶ causing some to define the globalization of IPRs as ‘part of a familiar colonial phenomenon’.Footnote ⁹⁷ Lastly, Shiva argues that IPRs can also lead to increased use of herbicides required for genetically modified plant biological resources, which can further harm plant biodiversity.Footnote ⁹⁸

What can be concluded from this ongoing debate is that there is, at the very least, a potential for IPRs to have detrimental effects on the preservation of plant biodiversity. In fact, the CBD itself recognizes this potentially harmful nature of IPRs by expressly requiring states to ensure that IPRs do not ‘run counter’ to the objectives of the Convention.Footnote ⁹⁹

4.2. Inconsistent State Obligations under Both Treaty Regimes

The discussion above has shown that privatization through IPRs has, at the very least, potentially detrimental effects on plant biodiversity. This is where the CCH concept becomes relevant. Instead of states balancing the risks and benefits of IPRs over their own resources, the notion of CCH obliges them to act on behalf of humankind. The fundamental concern that has been agreed on is the aim of protecting global biodiversity. This consideration tips the balance in favour of environmental protection as a public interest, as opposed to private IPRs.

What is more, the above-mentioned concerns about IPRs cannot be dismissed merely because of remaining uncertainties over the effects of IPRs on plant biodiversity levels. As States Parties to the CBD have agreed:

This essence of the precautionary principleFootnote ¹⁰¹ requires States Parties to refrain from potentially harmful measures to manage plant biodiversity even in the absence of full certainty over the effects of such measures.

Going a step further, the Court of Justice of the European Union (CJEU) has extended the application of the precautionary principle within EU law to cases of scientifically unquantifiable risk.Footnote ¹⁰² In the Waddenzee case, the CJEU stated that reliance on the precautionary principle is warranted ‘if it cannot be excluded on the basis of objective information’ that the proposed activity will have ‘significant effects’ on the environmental concern at hand.Footnote ¹⁰³ Applying such an interpretation to the present scenario in which IPRs have, at the very least potentially, significant adverse effects on plant biodiversity, it can be argued that states are required to refrain from such management options. Unless objective guarantees exist which prove that IPRs will not adversely affect plant biodiversity, states must operate on the assumption that they may, and therefore implement precautionary action. This is especially relevant given the long-term and disastrous implications of destructive measures to manage plant biodiversity. Similar restrictions on trade, justified by public concerns over risks to human health or the environment, have been accepted for trade in hazardous wastes, endangered species, and ozone depleting substances.Footnote ¹⁰⁴

To sum up, the CBD unequivocally requires states to preserve plant biodiversity, and to scrutinize any management option against this aim. In contrast, TRIPS effectively requires the protection of IPRs over plants and related processes, without providing states with adequate discretion to balance private interests with concerns common to humanity. Given that there is, at the very least, a potential for IPRs to significantly jeopardize plant biodiversity levels, the precautionary principle stipulates that we must ‘avoid or minimize such a threat’.Footnote ¹⁰⁵ This can be considered sufficient to render IPRs incompatible with the positive obligation of states to apply plant biodiversity-friendly policies.

In revisiting the trust analogy, it can be highlighted that the economic aim of a trust is to balance current use with long-term conservation. In line with the principle of sustainable development,Footnote ¹⁰⁶ this requires safeguards to ensure the participation of the beneficiaries, here humankind.Footnote ¹⁰⁷ In the current scenario, however, not only do the beneficiaries have limited powers to enforce the trust, but it can be argued that states, in passing on control over plant biological resources to private entities without taking into account the effects on the conservation of the corpus of the trust, would effectively discharge themselves of their task, entrusted to them by the international community.

4.3. Potentially Harmonizing Provision – Article 30 TRIPS

The asserted dichotomy in the obligations of states may be mitigated to some extent by an effective application of Article 30 TRIPS. Despite parties being obliged to protect IPRs, and Article 28 TRIPS listing a whole range of rights to be granted to patent holders, states have some discretion to exempt certain rights from being enjoyed by the patentee. Article 30 grants states freedom in establishing such exemptions, and merely lists substantive conditions to be fulfilled for their admissibility. Exceptions must be ‘limited’, and neither ‘unreasonably conflict with a normal exploitation of the patent’, nor ‘unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties’.Footnote ¹⁰⁸

A relevant example of such an exception is the free use of patented inventions for research and experimental purposes, ‘one of the most widely adopted Article 30-type exceptions in national patent laws’.Footnote ¹⁰⁹ In the Canada – Pharmaceutical Patents case, the WTO Panel states that both scientists and society have a legitimate interest in having access to patented inventions during the term of the patent, since disclosure of the invention to the public is an obligation under patent law.Footnote ¹¹⁰ Indeed, several countries have embedded such exceptions in their domestic lawsFootnote ¹¹¹ and it could limit the arguably harmful effects of patents on plant biodiversity which flow from a prohibition of further research on patented crops, as stated above. Moreover, it creates the possibility to operationalize Article 16(5) CBD, which requires states to coordinate both treaty regimes to ensure that IPRs ‘are supportive of and do not run counter’ to the objectives of the CBD. These objectives, of course, include the conservation of biodiversity, which the Preamble classifies as a CCH. Nonetheless, whilst Article 30 TRIPS provides welcome opportunities, parties are not obliged to apply any exceptions. Moreover, the listed conditions are cumulative and failure to comply with any of them ‘results in the Article 30 exception being disallowed’.Footnote ¹¹²

Additionally, Article 31 TRIPS provides for other uses of patented subject matter without authorization from the patent holder, through compulsory licensing or government use. However, such exceptions are temporaryFootnote ¹¹³ and require the patent holder to be financially compensated.Footnote ¹¹⁴ This may mean that some states ‘may have the will and the means, but not the funds’ to act upon Article 31 TRIPS.Footnote ¹¹⁵

As a result, states are still left to balance the interests of TRIPS with a common concern of humankind, bearing in mind the possibility of facing a WTO dispute settlement procedure in case of disagreement over an allowed exception to patentability or restrictions of the rights of patent holders. Both treaty regimes presuppose conflicting state obligations. Even the potentially harmonizing influence of Articles 30 and 31 TRIPS does not render IPRs fully supportive of conserving plant biodiversity. The accusations of IPRs potentially furthering monoculturesFootnote ¹¹⁶ and resulting in increased usage of herbicides persist.Footnote ¹¹⁷ For IPRs to be a successful management option, states would need to ensure that the TRIPS regime fully supports the conservation of plant biodiversity. The resulting key question is whether biodiversity conservation being a CCH justifies restrictions on IPRs over plants and related processes, as a way to protect plant biodiversity.

5.1. Public Interest Dimension in TRIPS

Despite the currently limited discretion of WTO Member States, the idea of excluding or restricting IPRs for the public good is anything but alien to the TRIPS regime. Those exceptions listed in Articles 27, 30 and 31 TRIPS are based on public interest, with plants, animals and related processes expressly mentioned as a contentious subject matter.Footnote ¹¹⁸ The Preamble, in fact, stresses the necessary balance between private rights and ‘recognizing the underlying public policy objectives of national systems for the protection of intellectual property’. This shows, as the UNCTAD-ICTSD Study on TRIPS and development felicitously summarizes, that ‘the objective of IPR laws is not to provide the maximum possible return to right holders, but to strike the proper balance of private and public interests’.Footnote ¹¹⁹ What is more, the very objectives of TRIPS expressly subject IPRs to public interests. Article 7 states:

The reference to ‘mutual advantages for producers and users’ underlines that exceptions and limitations within the agreement should be given equal importance to the rights provided in TRIPS.Footnote ¹²¹ To this aim, both Articles 7 and 8 play an important role in the interpretation of the TRIPS provisions and may help to delineate the obligations of patent holders,Footnote ¹²² as well as to strike a balance between TRIPS and the CBD.Footnote ¹²³ As Yu states, they ‘can be used to strengthen other operative provisions that promote social and economic welfare or that help preserve the balance of the intellectual property system’, including the limitations under Articles 27 and 31 TRIPS.Footnote ¹²⁴

Thus, the acknowledgement that IPRs can and, to some extent, need to be restricted for the public good is inherent in the TRIPS regime.Footnote ¹²⁵ Similarly, within the biodiversity regime, the CCH concept limits permanent sovereignty in the interest of the global public. By extension, applying the notion of CCH to curtail IPRs for the benefit of humankind is arguably in accordance with the very objectives of TRIPS.

5.2. Paramountcy of Protecting Plant Biodiversity

The second argument can be found in the CBD itself. It explicitly addresses the relationship with intellectual property rights, requiring states to ensure that IPRs ‘are supportive of and do not run counter’ to the objectives of the CBD.Footnote ¹²⁶ These objectives, of course, include the common concern for the ‘conservation of biological diversity’.Footnote ¹²⁷ It thereby subjects the usage of IPRs to states acting for the good of humankind as a whole.

Additionally, such obligation is strengthened in Article 22 CBD, even in cases where it might contradict provisions of other international agreements:

With strong arguments for IPRs at the very least potentially furthering monocultures, such a management option may be regarded as posing a significant threat to plant biodiversity.Footnote ¹²⁹ Adding the international legal obligation of applying a precautionary approach, as described above,Footnote ¹³⁰ it can be argued that states have a well-founded commitment to conserve plant biodiversity in the interest of humankind, through means other than IPRs.

5.3. Common Concerns of Humankind in General International Law

The third reason why the CCH of protecting plant biodiversity justifies limitations on intellectual property rights relates to international law more generally. The diverging obligations of states imposed by the CBD and TRIPS are representative of the current transformation of international law. We can observe a trend of redefining sovereignty to correspond more with the reality that common challenges – such as the alarming loss of plant biodiversity – require responses on a global scale.Footnote ¹³¹ In Bowman’s words, ‘the traditional regime of resource exploitation, grounded primarily in the notion of national territorial sovereignty, requires to be replaced by more overtly collectivist approaches’.Footnote ¹³² Such transformational spirit is supported by ICJ Judge Weeramantry, who stresses that:

Appreciating the gravity of the task, Stec relates the challenges in international environmental law to the ‘kinds of concerns that have parallels in other major turning points in history, and which therefore do not so much point towards “progress” but rather a fundamental questioning of values and assumptions’.Footnote ¹³⁴ Demonstrating the relationship between international environmental law and state sovereignty, he highlights that the Westphalian peace led states to develop competing systems to exploit the earth. In response, a ‘law of humanity’ developed to address two main spheres in which states had failed: (i) upholding human dignity, and (ii) matters of common concern, which ‘require a global, humanitarian response’.Footnote ¹³⁵ Stec sees a certain degree of hierarchy between the law of humanity and the international law of states.Footnote ¹³⁶ Indeed, ICJ Judge Bedjaoui observes that:

Such blurring of traditional distinctions between individual state interests and global civil societal concerns is mirrored in the increasing relevance of transnational environmental law. For states not only to act upon their self-interest but also to take global concerns into account can be argued to have ‘become a fundamental aspect of international law’.Footnote ¹³⁸

The notion of CCH is a legal conceptualization of such primacy. The word ‘common’ is the international law equivalent to ‘public order’ in domestic lawFootnote ¹³⁹ and may indicate superiority of such concerns over individual state interests.Footnote ¹⁴⁰ Understanding the conservation of plant biodiversity as part of such ‘law of humanity’ with superiority over individual (state) interests, it becomes clear that a proposed privatization of plants and related processes naturally sparks fierce public resistance. It also highlights the fact that state sovereignty should not be used as a barrier to adequately address matters of CCH. As Stec reminds us, the reason why the Westphalian order brought about the triumph of state sovereignty was that sovereignty ‘was the modus for upholding humanitarian precepts relating to freedom of conscience and religion’.Footnote ¹⁴¹ State sovereignty was facilitated to serve humanitarian needs. By the same token, it now needs to be redefined to be able to adequately address common concerns of humankind.

Implementing such redefinition is, evidently, no easy process. A detailed analysis thereof is beyond the scope of this article. Yet one suggestion is to move towards global constitutional law and thereby subject state sovereignty to constitution-like principles and rules enshrining such CCH. As Kotzé stresses, this is difficult in the current system, which:

Nonetheless, securing the implementation of such CCH through a redefinition of the state is a reciprocal process. Speaking about a developing ‘functional role of states’, Hey underlines that ‘universal principles such as the principle of common concern […] provide the basis for conceptualizing the functional role of states in terms of law, both vis-à-vis each other and individuals and groups’.Footnote ¹⁴³ The latter ‘manifests itself in the obligations that limit the discretion of states to treat the environment within their territory or jurisdiction as they see fit’Footnote ¹⁴⁴ and ensures, in the current case, the conservation of plant biodiversity in the interest of humankind.

These international legal developments in redefining the role of states reinforce the substantial importance of the CCH concept asserted by this article. Linking this back to IPRs, it can be concluded that these developments strengthen the argument that the long-term obligation to conserve plant biodiversity as a CCH justifies, and indeed prescribes, limitations to private IPRs over plants and related processes.

If we accept that long-term considerations must govern our societies and economic markets, then reciprocity-based trade agreements could in theory correspond with our CCH of safeguarding plant biodiversity.Footnote ¹⁴⁵ However, commentators such as Kiss have drawn attention to the underlying hierarchy:

Consequently, expressly declaring biodiversity conservation as a CCH, in an almost universally ratified agreement, subordinates reciprocity-based short-term interests to the common concerns of humanity. In sum, granting states discretion to exempt plants and related processes from IPRs is indeed in line with the general development to increasingly recognize and respect the concerns of the global public and adjust the role of states accordingly.