“Hyperownership” describes in a word the present international legal landscape with respect to genetic material. At issue is who should own or control access to the subcellular genetic sequences that direct the structure and characteristics of all living things, or, in popular usage, nature’s or God’s blueprints for life. Traditionally, genetic material belonged to a global commons or open system. No one exclusively owned this material and countries freely shared it. In sharp contrast, today exclusive ownership and restrictions on the sharing of genetic material are the international norm.

On January 29, 2000, over 130 countries adopted the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Biosafety Protocol or Protocol). 1 The Protocol establishes international procedures applicable to the transboundary movement of bioengineered living organisms (referred to in the Protocol as "living modified organisms," or "LMOs"). The adoption of the Protocol marked the close of over four years of intensive, contentious, and often emotional negotiations regarding the multibillion-dollar trade in bioengineered organisms. Human beings have genetically modified plants and animals through domestication and controlled breeding for some ten thousand years with little controversy. 2 Since 1973, however, modern biotechnology techniques have enabled the transfer of genes from one species to another unrelated species. 3 For example, genes from a flounder known to survive in frigid waters have been transferred to tomatoes to make them resistant to frost; 4 and genes from a natural soil bacterium (bacillus thuringiensis) have been transferred to potatoes and corn to make them resistant to certain insects. 5 These modern techniques and the products created by them have generated considerable debate. 6 Some commentators have raised ethical and religious concerns that these techniques enable human beings to play God. 7 Others have raised health concerns that genetic modifications might produce foods that trigger allergies. 8 Still others have asserted that economic considerations argue against genetically modified crops because they might disrupt small-scale farming systems and encourage monoculture. 9 Most important as regards the Biosafety Protocol, a multilateral environmental agreement, are environmental concerns that transgenic plants might transmit their genes to other crops or wild plants through pollen dispersal or may evolve into invasive species as their superior traits allow them to out-compete other plants. 10 Thus, the objective of the Biosafety Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of Hosted by The Berkeley Electronic Press

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