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Brooklyn Journal of International Law

First Page

553

Abstract

Genetically Modified Organisms (“GMOs”) compose a class of potentially patentable biotechnology that are prominent in international markets. Developed countries like the United States, function as leading producers of these patented GMOs and therefore play a significant role in their development and transnational export. Minimum protections for these forms of biotechnology are outlined in the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), which permits the patenting of GMOs that ultimately enter the stream of international commerce. Notwithstanding the potential risks GMOs present to the environment, public health, and the economy, the TRIPS Agreement fails to address any form of biosafety protocol for these increasingly complex inventions. Growing public concern surrounding GMOs resulted in the adoption of the Cartagena Protocol on Biosafety, an instrument that establishes precautionary measures aimed at protecting human health and the environment from the potentially adverse effects of living modified organisms. The intended effect of the Cartagena Protocol is undermined, however, by the failure of all TRIPS members to ratify both treaties. Failure of all TRIPS members to ratify the Cartagena Protocol results in discrepancies in international biosafety standards and poses risks to developing countries. This note seeks to address the potential environmental, health and economic harms associated with GMOs and argues that failure of TRIPS members to ratify the Cartagena Protocol creates regulatory inconsistencies that jeopardize biosafety and the growth of developing countries. It further argues that adopting a provision into the TRIPS Agreement mandating parties to ratify the Cartagena Protocol would promote growth of developing countries with only minimal adverse effects for developed countries.

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