1The spectre of biopiracy always looms large over the issue of resource sharing. However, although it is essential to understand biopiracy at the international level (see below and Chap. 3), the term does not appear in any legal texts. This absence can be explained by at least two factors: the bad press this phenomenon receives and the difficulty of defining it. This study, without confusing the moral and legal dimensions, is based on positive law (i.e. the laws in force) and sets out to contribute to the knowledge of biopiracy practices by revealing their materialities, different aspects and key issues, which relate to the ideological foundations of resource sharing.

2Biopiracy is a complex, evolving and multifaceted phenomenon, which never ceases to arouse controversy and unleash passions.1 Accused of many evils, it is condemned on both moral and legal levels, to the point that the two are often confused. Although law and values are clearly not unrelated, understanding the phenomenon and the legal responses to it requires us to distinguish between these two frames of reference. The issue of biopiracy is, in fact, much more complex than it first appears.

3Biopiracy concerns natural resources but also, on an ancillary level, cultural resources, however they are designated (traditional knowledge, traditional know-how, etc.), and is not a recent phenomenon. A genuine component of colonisation, to which it cannot be reduced, the term “biopiracy” was not coined until 1993, to denounce the conditions of access to and use of resources. In other words, the practice preceded the name.2

4Today, biopiracy is covered by several legal instruments at different levels: international, regional, national and local (sub-national). The reference framework in which most of the rules are enforced is mainly that defined by the Convention on Biological Diversity (CBD)3 and the associated Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilisation.4 The Convention and the Protocol set out the general framework for sharing the resources and benefits arising from their utilisation, and leave the definition of the procedures for their concrete implementation to sovereign States.5 In essence, the sharing norm operates as follows: States allow interested entities to access and use resources located on their territory. In exchange, these entities undertake to share the benefits arising from the utilisation of these resources, in accordance with the rules that apply to them. This system is supposed to combat biopiracy.

5However, beyond the flaws in this legal framework, the legitimacy and legality of these resource-and-benefit-exchange practices are regularly challenged (Aubertin & Moretti, 2007), which seems to give the impression that any access to or utilisation of a resource will inevitably lead to accusations of biopiracy. This raises the question of what the legal framework established by the Convention and its 2010 Protocol has actually achieved.

6From the standpoint of users, whether public or private research entities or companies, the legal certainty of the utilisations and of their ensuing results appears to have been undermined, not to mention the social disapproval and damage to reputations linked to “naming and shaming” practices.

7As far as members of civil society in the broadest sense are concerned, the benefits of these utilisations, be they in the pharmaceutical, food or cosmetic sectors, may not reach them.

8From the providers’ perspective, States, user communities (indigenous peoples, local communities, etc.) or any other entity with resources (collections, etc.) may perceive these practices as an attack on their identity or their rights, sovereign or otherwise according to the situation. More prosaically, they may be more concerned about their loss of earnings in the event of appropriation without compensation.

9From the legal observer’s standpoint, these practices lead to profound reflection on the status of natural (and cultural) resources and their utilities. Indeed, in positive law, “benefits” are subject to a targeted and specific understanding, i.e. they are assessed vis-à-vis the user that accesses and makes use of the resource. However, the “utilities” go beyond this positivist framework, and cannot be reduced to the question of individually applicable benefits, because they focus on the general utility of resources from the perspective of the human community. For example, a resource may provide a monetary benefit to the company that develops it and then sells it, while also being useful to humanity, if the final product that is marketed is a medicine, even though, in reality, such products are unlikely to be of benefit to everyone. Benefits and utilities call for considerations that are different in nature and content: while the former are tangible and can be found in the field of law, the latter, despite also being situated in the material world, are more elusive and relate more closely to the field of values. Of course, this oversimplified presentation should not obscure the fact that, in reality, both these dimensions are intertwined and inextricable. In addition, it should be borne in mind that the same applies to cultural resources, which also call for special considerations associated with community identity. In the meantime, our attention is naturally drawn to the sharing of these natural and cultural resources, i.e. to their purposes, conditions and limitations.

10Inexorably, all these elements make it harder to understand the intricacies of biopiracy and, ultimately, the sharing of resources. This intertwining of law and values explains why biopiracy is so difficult to define and explain.

Defining biopiracy

11The major difficulty in understanding biopiracy is that there is no universally accepted definition of the phenomenon. Although attempts have been made, the resulting definitions do not necessarily coincide, which means that beyond the illusion of simplicity that this creates, they actually relate to different realities. This situation is explained by the relationship between the law and values in this field, which leads to problems in defining the phenomenon. Once these difficulties have been overcome, a suitable definition of biopiracy can be proposed.

Definitional problems

12“Biopiracy” can seem an elusive term given its multiple and varied manifestations (Delpas, 2012). In fact, it is one of those terms used with the assumption of a commonly accepted meaning, but this is definitely not the case.

13On the contrary, the manifold uses of this expression reflect a plurality of meanings associated with different materialities, limitations and issues. This does not mean that there is no central common denominator; instead, it indicates that this phenomenon can be approached from different angles covering a wide range of issues of variable importance. However, this diversity hinders the understanding of biopiracy and complicates its study, since switching from one perspective to another prevents any identification of purpose, which is not inconsequential. This is because, as ever, there are two ways to give substance to this issue, and everyone is free to choose as they see fit: the first way is to adopt an existing definition, and the second is to propose a new one.

14The first approach – starting with an existing definition, whether provided by a legal text or an observer – has the undeniable advantage of being the easier option: adopting an established definition is tantamount to agreeing on a meaning and, in so doing, to focusing on the same topic of discussion, thereby reducing the risks of divergence. However, this approach is not perfect. Indeed, when it comes to issues as sensitive as biopiracy, the primary definition itself may have several shortcomings, which will thus apply to all approaches based upon it.

15This approach may be subjectively skewed from the outset, i.e. no longer objective, and worse still, partisan. Beyond the basic scientific imperative that should guide any study and that controls="true" the nuances of meaning, such a definition may concern only one facet of the phenomenon and not encompass it in its entirety. In these cases, biopiracy is seen through a distorted lens without all of its dimensions being precisely measured and formalised. For example, claiming that it is an “outright theft of biological resources” (Bellivier & Noiville, 2009: 4-7) or “piracy of other people’s property” (Shiva, 1997) suggests that the practice is illegal, i.e. that it is carried out in violation of the legal norms in force.6 Yet, many examples reveal that acts of biopiracy are not necessarily committed in violation of the legal rules: one need look no further than the resource flow dynamics that took place during colonisation to be convinced of this, as the colonising power’s laws became a tool for appropriation (Peyen, 2018: 65 et seq.) Even in more recent times, as shown by the examples of neem and maca, the most frequently used channels are legal, particularly through recourse to intellectual property mechanisms. Flexible interpretations of patentability criteria (novelty, inventiveness, industrial application) have given rise to several cases of alleged biopiracy, since patent offices are not bound by a general obligation to verify the conditions of access to and utilisation of the resources that led to the invention. Indeed, their monitoring currently focuses on the intellectual creation itself rather than on the raw material that made it possible in the first place.7 More broadly, intellectual property law is quite indifferent to the sharing norm, which makes it difficult, but not impossible, to challenge acts of biopiracy through this channel.8

16Assuming that the criterion of objectivity is met, the first definition may still suffer from a subsequent lack of exhaustiveness, which could lead to the deliberate or inadvertent exclusion9 of an entire aspect of the phenomenon, and several practices that could nevertheless relate to it. The definitions provided by regulatory instruments in the broadest sense are the most significant in this case, as they generally present biopiracy as being the result of non-compliance with one or more norms. Two preconditions must therefore be met to enable the characterisation of this phenomenon: not only must there be a reference norm, there must also be a violation of it. This brings to mind Peruvian Law No 28216 on the Protection of Access to Biological Diversity and Collective Knowledge of Indigenous Peoples, which defines biopiracy as “unauthorised and unremunerated access to and use of biological resources or the collective knowledge of indigenous peoples by third parties, without the relevant authorisation and in violation of the principles established by the Convention on Biological Diversity and of the relevant rules in force” (Supplementary and Final Provisions, third point). This definition clearly does not cover acts of biopiracy that took place before the instruments in question came into force. This does not imply that biopiracy did not exist before these texts came into force; it quite simply means that referring to norms restricts the scope of biopiracy to the scope of the norms. In this case, there is a discrepancy between the real phenomenon and the phenomenon as circumscribed by the texts. Of course, this also applies to definitions which specify the means, actors or purposes of biopiracy, with each identifying element being both inclusive and exclusive. The fact that biopiracy is described in common parlance as “the appropriation (patenting) and exploitation by commercial companies, under conditions deemed illegal or unfair, of biological or genetic resources specific to certain regions”10 is also unsatisfactory, as this definition overlooks the complexity of the phenomenon, whether in terms of the diversity of actors (nature and motivations) or the modalities of appropriation, for example. In summary, adhering to an existing definition requires the utmost caution, as “the term biopiracy is applied to a wide range of acts” (Aubertin & Moretti, 2007: 119).

17The second method – proposing a new definition – may therefore be preferable, although the preceding remarks should be heeded to avoid falling into the same trap. However, attention should also be paid to the fact that several biases may affect the author of the new definition.

18Firstly, his or her training and sensitivity must be taken into account. In this way, a positivist tendency – broadly consisting in considering that the law is embodied by the legislation and is necessarily attached to the State, a legal person under public law – could lead to an underestimation of certain factual data in the definition of the phenomenon, such as the links between communities and their environment. Secondly, the author’s intention should not be overlooked. He or she may be seeking to highlight certain aspects of the phenomenon rather than others, leading him or her to approach biopiracy in a manner that serves his or her ambitions.

19Bearing these factors in mind, if the objective – as in this paper – is to understand biopiracy as broadly and objectively as possible, i.e. in all its forms, irrespective of its manifestations, actors or methods, a clear methodology to cover the pursuit of materials must be established. To this end, it is important to develop an open-minded attitude, which means abandoning all ideological considerations, assumptions or generalisations, and adopting a non-speculative approach. This enables the acceptance of reality at face value and its systematisation: in other words, it effectively leads to the listing and consideration of all hypotheses of biopiracy, suspected or proven, so as to identify the common, core characteristics of biopiracy. Biopiracy cannot be objectively and comprehensively addressed until this stage has been completed.

Proposed definition

20Biopiracy always has the same characteristics, regardless of the case in question (ayahuasca, rooibos [Box 1]), couachi (see Box 1 in Chap. 12), maca, mamala, neem, pelargonium, Madagascar periwinkle, etc.) (Peyen, 2018: 7 et seq.)

21Biopiracy is first and foremost an appropriation, i.e. an action in which an entity assumes the ownership of something in order to satisfy a particular interest. This can be obtained through the intellectual property channel, but not necessarily, and it is not necessarily illegal. On the other hand, it is always illegitimate, and its main focus is always a living natural resource, i.e. material of a biological nature (such as a seed, a plant or a micro-organism), but it may also concern a cultural resource that relates to a given living natural resource (such as traditional knowledge). Finally, it is always carried out for the benefit of one entity and to the detriment of another. In all cases, whether the resource or any of these entities are associated with a “developed” or “developing” country has no bearing on the identification of the phenomenon.

22Consequently, biopiracy can be defined as “the illegitimate appropriation by one entity – particularly by means of intellectual property, and sometimes in an illicit manner – of natural resources, and/or possibly of cultural resources related thereto, to the detriment of another entity”.

23More concretely, with regard to resources under national jurisdiction (for resources outside national jurisdiction, see below), biopiracy is manifested in four different ways.

24First, biopiracy takes place when a State’s regulations on access to and utilisation of “its” resources are not respected. This causes harm to the State, but may also harm the interested entities (communities, owners, managers, etc.) for which the State has established specific rules (consultation, participation, authorisation, etc.), when these rules have been violated. However, non-compliance with State regulations may not be the decisive factor.

25Indeed, biopiracy can occur if a State’s regulations, although respected, are not themselves respectful of the entities concerned. This applies when government regulations do not grant communities a satisfactory status, or do not recognise their rights over their cultural resources or over natural resources with which they have special ties.11 In this case, the inadequacy of the national system could cause harm to these entities, without really affecting the State itself.

26Beyond these hypotheses linked to national regulations, biopiracy also occurs more broadly in cases in which the conditions of access and utilisation initially agreed upon by the provider(s) and the user have not been respected by the latter.12 This would be the case if the user failed to fulfil its resource-use or benefit-sharing obligations under the sharing agreement, for example.

27Finally, because this is not a recent phenomenon, since it may have taken place during colonisation (Peyen, 2018: 65 et seq.), biopiracy is said to occur, in cases of access to and use of resources that cause harm to a State or non-State entity even before rules on this matter were established. This case is undoubtedly the most difficult to comprehend in view of the questions it raises from the theoretical (non-retroactivity of legislation and legal certainty) and practical (evidence) perspectives, even if a “catch-up” process seems to be underway.13

28All of these factors inevitably lead to biopiracy being considered as “resource grabbing”, i.e. appropriation carried out for the benefit of one subject and to the detriment of another (Peyen, 2018: 21 et seq.) This is why it is so strongly criticised: perceived as enabling the enrichment of some at the expense of others, it may even be presented as a contemporary manifestation of colonisation. Consequently, while some argue that “it is possible that we are overly concerned with biopiracy” (Dutfield, 2004: 89-92), others refer to “the return of Christopher Columbus” (Shiva, 2002: 11-16; Kloppenburg, 2011: 15-40) and “the violation of a moral rule” (Roumet, 2012: 18). This willingness to denounce plays a useful role in drawing attention to this phenomenon, which remains little known and for which there is currently little data, and in protecting the rights and interests of certain entities, both State and non-State (user communities, for example). Biopiracy, which relates to access to resources and their use under questionable conditions, is therefore inherently deleterious. Moreover, the lexical field used to talk about the phenomenon – be it “piracy”, “colonisation”, or the very history of the term “biopiracy”, due to its propensity to arouse negative connotations and indignation – can be extremely productive from the perspective of raising awareness about the practice.

29However, it is doubtful whether such an approach has any place in the scientific field when it comes to considering biopiracy as a discussion topic. On the contrary, it has a tendency to neglect certain aspects of the phenomenon in order to emphasise others, whereas scientific rigor demands a nuanced and objective approach. And for good reason: these approaches, which focus on the conditions of access to and utilisation of resources, neglect the purpose of these actions, at the risk of preventing a proper and complete understanding of biopiracy and, more broadly, of resource-sharing processes.

Understanding biopiracy

30Let there be no misunderstanding about future developments: it is not a matter of justifying biopiracy, but of understanding it, i.e. of taking stock of every aspect of the issue. It is therefore not a question of defending and legitimising this phenomenon, but of highlighting the values that underlie it and permeate it, and which are at the root of the underlying problems and the responses to them, particularly with regard to sharing. These values, which are the real keys to interpreting biopiracy and the legal sharing norm, are based on three doctrines: utilitarianism, solidarism and egalitarianism.

Utilitarianism

31The utilitarian approach is resolutely consequentialist in that it leads to the assessment of actions in terms of their consequences and, more precisely, from the perspective of their utility. Jeremy Bentham once put it this way: “By the principle of utility is meant the principle which approves or disapproves of every action whatsoever, according to the tendency it appears to have to augment or diminish the happiness of the party whose interest is in question.” (Bentham, 1789: 8) Applied to biopiracy, several lessons can be learned.

32Indeed, the phenomenon takes place because of the actual or potential utility of natural resources. Beyond the terminology – it is indeed a question of “resources” – the definitions provided by international instruments leave little room for doubt: the genetic resources are systematically defined as “genetic material of actual or potential value” (Convention on Biological Diversity, Art. 2; International Treaty on Plant Genetic Resources for Food and Agriculture,14 Art. 2).

33The significance of this observation cannot be underestimated: if these instruments endorse these utilitarian definitions, it is because the authors of these texts conceived of natural resources in this way in advance. The number of parties – more than 190 for the 1992 Convention and more than 140 for the 2001 Treaty – is a further indication of the general consensus on this approach. In fact, it can be argued that natural resources are defined more by their utilitarian purpose than by their natural dimension, as shown by the Nagoya Protocol, which follows in the wake of the Convention on Biological Diversity. To put it another way, this utilitarian destiny (regarding food, pharmaceuticals, science, ecology, etc.), which, incidentally, reflects an indubitably anthropocentric bias, explains why the law – and therefore humankind – are interested in them, with regard to both their use and their protection. The United States Supreme Court had remarkably highlighted the benefits of such an approach by stating that “the value of the genetic heritage is literally incalculable... It is in the best interests of mankind to minimise the losses of genetic variations. The reason is simple: they are the keys to puzzles we are unable to solve, and they can provide answers to questions we have not learned to ask”.15 In other words, natural resources are incontrovertibly worthy of interest.

34The concepts mobilised to regulate biopiracy support this affirmation. The “benefit” to be shared, for example, is nothing more than compensation for the utility of the resource to the user. Sovereignty over natural resources – a crucial concept – is only one facet of the economic sovereignty of States: historically introduced at the time of decolonisation in order to enable emerging States to “reappropriate” their resources, sovereignty is a tool that enables States to ensure their development and, in so doing, to contribute to satisfying the general interest on their territory.16 The race for territory and resources that took place in colonial times was also motivated by utilitarianism, which largely permeated Western legal thought before spreading to the rest of the world. More generally, the allocation of resource rights is legally equivalent to tying the rights holder to the resource on grounds of interest and utility.

35As can be seen, this utility can be assessed from the perspective of a particular entity or community, i.e. a resource may have several simultaneous utilities and be able to satisfy several interests. If a living being can be useful in situ because of its contribution to the ecosystem to which it belongs, once attached to humans, it can be of interest to the provider that possesses it, to the initial user of the resource who accesses or develops it, and to the final user of the resource (the “consumer”), who profits from the end product and its benefits. However, not only may these interests be contradictory and conflicting, in reality, each link in this chain relates to multiple protagonists, who may themselves have divergent interests. The sharing norm is intended to reconcile these interests and utilities in order, in fine, to establish a “win-win” mechanism, and this is why, based on a Rawlsian conception of justice (Rawls, 1987), the contractual mechanism has been preferred for its implementation, since the sharing must be carried out under mutually agreed terms.

36Utilitarianism is therefore an inescapable consideration to be borne in mind in order to understand biopiracy and the responses to it. That said, although it helps to explain why appropriation occurs, it does not fully enable us to understand why certain entities are harmed by it, and this leads us to examine another doctrine: solidarism.

Solidarism

37Solidarism is a doctrine that relates to the idea of solidarity and interdependence between people. The fact that its principle was formulated by Léon Bourgeois, at his own level and with respect to his own field, does not make it irrelevant to our subject: “There is (...) for every living man, a debt to all living men, in proportion to the services rendered to him by the efforts of all. This exchange of services is the subject of the quasi-contract of association which binds all individuals, and it is the equitable evaluation of the services exchanged, that is, the equitable distribution of benefits and burdens, of social assets and liabilities, which is the legitimate purpose of social law.” (Bourgeois, 1902: 138).

38This link between biopiracy and solidarity may not be self-evident, since the phenomenon is often presented as the embodiment of individualism, where the individual takes precedence over the collective. However, biopiracy cannot be reduced to this idea. On the contrary, solidarism is a powerful school of thought from which it does not depart and which, to a certain extent, sublimates utilitarianism. In this respect: since resources have an actual or potential utility, and are likely to contribute to the satisfaction of interests, they can also contribute to the satisfaction of the general interest (for the treatment of diseases, for example). Therefore, should they not, in this respect, benefit humanity as a whole? In other words, is it acceptable for any entity to have sovereignty over these resources without sharing them, i.e. without making them available to others, especially when it does not exploit them itself? Should humanity as a whole have a right to these utilities and, therefore, to these resources? These questions are the basis for the third objective of the Convention on Biological Diversity, which is the fair and equitable sharing of the benefits arising from the utilisation of genetic resources (Art. 1).

39This raises the question of whether the holders of resources, whether natural or cultural, can deny access to them. Some people consider that this question should not even arise, and that formulating it in this way is even contrary to the spirit of the Convention on Biological Diversity.17 It is true that the Convention encourages States (which “shall endeavour”) to “create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention” (Art. 15.2; also see Art. 8.j). Yet, with regard to natural resources, two things should be noted: first, the ability to determine the conditions of possibility and limitations of the sharing of natural resources is one of the attributes of States’ sovereignty over their natural resources – a pillar of the sharing mechanism – which requires States to decide upstream, at least from a theoretical standpoint,18 whether or not their resources should be shared; second, supposing that States have such a legal obligation to share, which automatically reduces their sovereignty since they must implement the sharing norm, they may well refuse to authorise the movement of their resources if they consider that the conditions for “fair and equitable” sharing have not been met. Similarly, there is nothing to prevent the introduction of a regulatory framework that would be so demanding and restrictive that it would act as a deterrent, and scientists are constantly sounding the alarm about these barriers to research, which is so essential to common progress. The question of cultural resources poses more problems since the definition of the rights relating to them and the implementation of these rights, where applicable, depend largely on the willingness of the States; however, there is always a possibility of the holders of these resources objecting to their access and utilisation. The hypothesis that access might be denied is therefore an entirely realistic and serious possibility.

40Take the example of a plant with significant potential in the health and cancer-treatment field, but whose controlling entity – a State or community – decides not to “share” it. How would the law view such behaviour? Although, on the one hand, one can advocate the need to respect the rights of the said entity over “its” resources, on the other hand, one must question the consequences of such choices in terms of the satisfaction of the general interest.19 To put it more simply: could the refusal to share be detrimental to the general interest? And in this case, could the enforcement of rights in the sense of a refusal be comparable to an “abuse of rights”? Should every resource-holding entity be required to share these resources? In the event of refusal, would it then be beneficial to establish a form of obligation to share resources, in the manner of an expropriation process? It is not surprising that the 1992 Convention and its Nagoya Protocol remain silent on this point, given the sensitivity of the issue and the fact that it falls outside the strict framework of positive law.

41The case of intellectual property comes to mind, through which biopiracy may be carried out, and whose raison d’être lies in its contribution to “common progress”: it rewards and stimulates innovation in equal measure. From a different perspective, nobody today would dare to complain about having access to so many fruits and vegetables which were once only found in “exotic” places, before they were brought into wider circulation by the resource grabbing that took place in colonial times. This makes it easy to understand the charges levelled against applications of the sharing norm that complicate advances in medical matters, such as knowledge of diseases and their treatment (Cressey, 2014; 2017). There are many such examples, which could actually apply to many cases. Conversely, however, it should also be remembered that patent exclusivity is also problematic in that it confers a power upon holders that may result in reduced access to medicines for certain States or certain populations20, as history and even current events have shown.

42Therefore, because biopiracy is, in certain respects, likely to contribute to the satisfaction of the general interest, should we consider a kind of responsibility to share, in the manner of a “right to interfere”, by analogy with the famous “responsibility to protect” found in public international law?

43However, this finalistic interpretation is nevertheless risky and can lead to numerous abuses. The dangers of such an approach, whose components are uncertain and vague, are real: apart from supposing a kind of duty to share, it may also lead, under the pretext of the general interest, to all kinds of instrumentalisation that could lead to spoliation. Not only are traditional criticisms of the responsibility to protect sufficiently well known not to need repeating, but the colonial period also highlighted the profound iniquities and deleterious results of this position vis-à-vis the responsibility to share. Therefore, even if the general interest, which is inseparable from solidarism, is a dangerous concept that must be treated with great caution, its consideration shows that a purely Manichean approach is not a satisfactory way to understand biopiracy as a whole and understand it at its true value. Its consequences and methods should be considered in relation to each other.

44The problem is that, in this field, the satisfaction of the general interest, approached from the standpoint of the community that benefits from it, inevitably involves the satisfaction of the private interest, approached from the standpoint of the initial user who develops it and makes it available to the greatest number under certain conditions. This private intermediary – which, unlike the provider, possesses the means of development – then becomes the condition for satisfying the general interest, which can only be satisfied at the cost of harming the provider’s interest, as the latter’s resources are plundered without compensation, whereas in the case of expropriation, for example, a compensation mechanism is provided. This is where egalitarianism intervenes in order to restore balance to the relationship.

Egalitarianism

45Egalitarianism is the idea that a certain degree of equality needs to be ensured for people around the world, notably by redistributing wealth. In terms of biopiracy, this doctrine can only be understood in light of the two previous ones: while natural resources are sources of utility and should therefore benefit everyone, there is also an unequal distribution of natural resources around the world, which means that some people have access to them while others do not, just as the means to exploit them are inversely distributed. Consequently, if there is no sharing and a strategy of isolationism is deployed, these inequalities in terms of the environment and development will harm the general interest and, in so doing, the progress of humanity: reciprocal sharing is therefore an imperative for common progress, which can only be achieved if there is a better distribution of means and resources in the world.

46In this sense, insofar as the satisfaction of the general interest (that of humanity) requires the satisfaction of a private interest (that of the initial user) to ensure that the provider’s interest is not harmed, the sharing norm intervenes to even out the relationship that is established between these first links in the chain. The law is familiar with this kind of process, since it contains several mechanisms designed to reconcile individual and collective interests, such as expropriation, works falling into the “public domain”, and the provision of data on inventions in the field of intellectual property. With specific regard to the mechanism arising from the Convention on Biological Diversity and its Nagoya Protocol, the agreement of willingness enables the definition of the providers’ and users’ rights and obligations based on a quid pro quo rationale, or a “give and take” mechanism: the provision of the resource corresponds to a sharing of the benefits resulting from its utilisation. The aim is to distribute environmental resources as well as “developmental” resources. 

47This idea is central to the sharing norm for resources under jurisdiction. Almost the same principle applies to resources beyond national jurisdiction, i.e. those in the International Seabed Area and the high seas,21 although different parameters must be considered. The very idea that biopiracy could exist in these areas may be surprising, since in these places, everyone is free to “reserve” resources for themselves, without harming any particular entity. Nevertheless, in practice, the reservation capacities correspond to levels of development; it was noted in 2011 that “10 States account for about 90% of patents on marine genetic resources”.22 This means that the open-access regime leads to the enrichment of the most highly developed nations, which are able to exploit these “common” resources and appropriate them in an exclusive manner, while the underdeveloped nations are condemned to a state of creative inertia. Such a situation, which exacerbates the inequalities and development capacities, is therefore likely to harm the least developed States, and consequently, their populations. In this case, it is quite reasonable to add a fifth concrete hypothesis of biopiracy to those previously mentioned: biopiracy occurs when resources beyond national jurisdiction are appropriated without sharing the benefits derived from their utilisation, or when the established norms in this area are not respected.23

48The basis or bases for sharing then emerge(s). The legitimate question of why resources, both under and beyond jurisdiction, the benefits derived from their utilisation, and their utilities should be shared, can be answered in the following manner: the environment is a common good (Peyen, 2018: 65 et seq.) In a context of unequal distribution of natural resources and unequal development capacities, it is in humanity’s interest for everyone to benefit from these utilities.

Conclusion

49In short, biopiracy is a complex phenomenon that occurs in many places, contexts and forms, which means that before describing any access to resources and their utilisation as an act of biopiracy, the conditions in which it occurs must be clearly identified. From this perspective, the decision to consider each case individually, made by the authors of the Convention on Biological Diversity and the Nagoya Protocol – who managed to comprehend this elusive phenomenon without naming it – holds considerable promise as the best way to help satisfy the interests at stake. By allowing the different stakeholders to appropriate the sharing mechanism, notably through recourse to the contractual arrangement, these texts enable the adoption of an appropriate response to each situation in which resources are brought into circulation; in so doing, they suggest that the keys to the interpretation of sharing are individually applicable and specific, rather than transposable and common.

50With regard to the ideological foundations of resource sharing, utilitarianism, solidarism and egalitarianism form a solid triptych that helps us understand the validity of the rules that have been established, but also reflects the different dimensions and key issues of biopiracy. As a result, while natural resources are sources of utility and can contribute to the common good of humanity in a world that is profoundly inegalitarian on the natural, human and technological levels, and which is wrought by fierce competition, the issue of biopiracy reflects a society that is undermined by instability, in which a satisfactory way to ensure harmonious relationships between humans and natural resources, but also between humans themselves, has not yet been found.

51At the end of the day, the real issue concerns the sharing of resources and their utilities in the world: the very issue that has been unleashing passions for centuries.

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