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Chicago Journal of International Law

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151

Abstract

International law is full of holes, inconsistencies, and ambiguities because of the number of overlapping treaties, agreements, and actors at play. One such ambiguity can be found in the overlapping system of treaties that govern plant genetic resources. Specifically, the International Treaty for Plant Genetic Resources (ITPGR) provides for international sharing of plant genetic resources to protect the biodiversity necessary for human food production. However, the ITPGR is a non-binding treaty that is challenging to implement in light of international treaties that allow plant genetic resources to be claimed as intellectual property rights. ITPGR is not as a matter of law in conflict with either the International Union for the Protection of New Varieties of Plants (UPOV) or the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), the two relevant intellectual property treaties. However, there are inherent and fundamental tensions between them. First, the treaties are pursuing different goals that are at odds. Second, the ITPGR explicitly bans claiming intellectual property rights on “genetic parts and components, in the form received” from the Multilateral System which is designed to share plant genetic materials internationally. Depending upon how a nation interprets ITPGR's ban, it could be inconsistent with the total control of plant genetic materials allowed under UPOV and TRIPS. This Comment proposes interpretations of ambiguous provisions in the ITPGR as a guide for nations that are trying to implement it but are bound by obligations under TRIPS. The ITPGR phrase “genetic parts and components” should be interpreted to mean any segment of plant genetic material that can be found in its entirety in the Multilateral System. This would require that plant producers alter the composition of genetic materials to be able to claim intellectual property over them. This Comment further suggests that “in the form received” can and should be interpreted broadly to include simple variations on Multilateral System plant genetic resources to better protect farmers from accidental encroachment. Finally, it argues that payments made to ITPGR could be put to their highest use by providing legal representation for farmers.

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