ISHS Acta Horticulturae 683: V International Symposium on New Floricultural Crops
PLANT TRADE AND PROPERTY RIGHTS - A MATTER FOR INTERNATIONAL DEBATE |
| Author: | R.J. Bogers |
| Keywords: | benefit-sharing, breeder's exemption, breeder's privilege, breeder's right, CBD, CITES, common property, farmers' privilege, farmers' rights, genetic resources, orchids, plant patents, sustainable use, TRIPs, UPOV, utility patents |
| Abstract:
Property rights over natural resources have long been the subject of discussion. Ancient Roman law says that "Nothing is by nature private property", because "Nature knows no sovereigns". In 1609 the Dutch lawyer Hugo de Groot (Hugo Grotius) published his 'Mare Liberum' ('the Free[dom of the] Sea[s]'), in which he acknowledges the possibility that someone claims sovereignty over a natural resource, viz., a part of the sea, in so far as this does not impair the common uses of the whole resource (the sea) by others. In his 'De Iure Belli ac Pacis' ('on the Law of War and Peace'), published in 1625, Grotius also acknowledges that individual people can acquire ownership over natural resources. Though his interpretation of common property entails a situation of non-exclusive use, it is regulated use, even if the regulation is rather minimal as compared to a situation of well-established sovereignty and well-defined exclusive property rights (Van der Schans, 2001). Unlike Grotius, the English philosopher John Locke, in his 'Two Treatises of Government', published in 1698, provides economic rather than juridical reasons to legitimate private property of resources that were previously considered to be common property. For Grotius, something becomes private property through consumption or lasting occupation; for Locke, something becomes the private property of someone as this person expends labour to remove it from the common state nature had placed it in. Locke is very clear, however, in pointing out that no one is allowed to take more than his share, and that nothing may be spoilt or destroyed: the amounts of resources that can be appropriated are relatively small in relation to the total amounts available (Van der Schans, 2001). According to the American lawyer and scientist D.B. Resnik (2004) the native species on the earth should be seen as 'common resources' rather than 'common property'. Duties of stewardship (avoidance of harm) and justice (fair and just use and benefit-sharing) arise from the fact that current and future generations have a common interest in preserving them, even if that interest is not a property interest. Hardin (1968) argued in his classical paper 'The Tragedy of the Commons' that if each user of a common resource is free to use the resource, this will inevitably lead to over-exploitation and the collapse of the resource; to prevent this, state involvement or the (state-initiated) institution of private property is necessary. Others, however, have doubted these views: in practice it may be better for the preservation of a resource to have it controlled by a local community, with relatively free access given to its members ('common property' in a narrow sense), than to have it owned by a state that is not able to enforce its rights, thereby creating an unwanted situation of de facto open and uncontrolled access (which reflects 'common property' in its broadest sense) (cf. McKean and Ostrom, 1995). Community-based management is often backed by long-time experience and by detailed knowledge of the resources and of the ways to exploit them sustainably; in such case it does not need to be complemented or even replaced by bureaucratic rules imposed from outside. Also, community-based sanctions can be more efficient and effective than state-imposed penalties, even if in modern societies sanctions are usually the prerogative of the state. As Van der Schans (2001) points out, co-management, in which the community's practical knowledge ('how') works together with the government's (theoretical) scientific knowledge ('why') may in many instances offer the best solution. It should be borne in mind, however, that regardless of the management system always a lot of information is required to develop a sound sustainable resource management regime (Mokua, 2002). Genetic resources are conserved, exchanged and used by a variety of domestic and foreign actors, whose activities are meant to promote a healthy development of economically important sectors, but may not cause irreparable damage to the environment. Private-sector involvement ranges from the family selling garden produce and the individual entrepreneur to the multinational company (ten Kate and Wells, 2001). All of these are entitled to a fair share of the benefits resulting from the use of the genetic resources. ... | |
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