Contribuições do biocomércio para a articulação entre a regulação do uso dos recursos genéticos marinhos situados na BBNJ e os direitos de patente

Abstract

International Law is facing the constitution of a new multilateral regulation, the Binding Legal Instrument on the Use and Conservation of Marine Biodiversity, under the United Nations on the Law of the Sea (UNCLOS), in areas where there is no national jurisdiction. In 2015, Resolution 69/292 of the United Nations General Assembly decided to initiate discussions on the Instrument that covers, among other topics, regulation of marine genetic resources and issues related to benefit-sharing. The research starts from the hypothesis that, depending on the final wording chosen for this regulation, there may be conflicts with the intellectual property system, formed by the World Trade Organization (WTO) and by the WIPO (World Intellectual Property Organization), especially, with patent rights. The possibility of conflict is against the economic exploration of the oceans in a sustainable way. As the Convention on Biological Diversity and the Nagoya Protocol were not sufficient to guarantee that the regulation of biodiversity and intellectual property are mutually reinforcing, the negotiations on the regulation of marine genetic resources and patent rights are analyzed from principles of the UNCTAD (United Nations Conference on Trade and Development) initiative: BioTrade. The question to be answered in this thesis is: how can the principles of BioTrade contribute to harmonizing the legal mechanisms for regulating the use of genetic resources and their consequent sharing of benefits with patent rights? This thesis will present an important contribution to the United Nations (UN) agenda for the seas and oceans, as it relates to the views adopted in the UN Ocean Decade. In a national perspective, the present work contributes to the insertion of the country in the discussions about the Instrument. the work adopted an exploratory and explanatory methodological approach. The research is based on the review of specialized literature (articles, books, theses, dissertations), on the analysis of official documents and other primary sources (international treaties, official declarations, guidelines of international organizations). The research considered the documents of negotiations on the regulation of the use of marine genetic resources and on intellectual property rights and their relationship with biodiversity, in the WTO and WIPO.