Authors: Partha PratimMitra and Prakash Sharma*
The United Nations General Assembly in 2006 adopted 22nd May every year as the International Day for Biological Diversity.The day commemorates the adoption of the agreed text of the Convention on Biological Diversity(CBD).This year’s slogan is “Our solutions are in nature”, which emphasizes upon ‘hope, solidarity and the importance of working together at all levels’, and a future built in harmony with nature. This year is important because it is the final year for three major instrument, namely United Nations Decade on Biodiversity (2011-2020), the Strategic Plan for Biodiversity (2011-2020) and its Aichi Biodiversity Targets.
The year is also important because CBD is revising and working on another strategic plan to adopt post-2020 global biodiversity framework as a stepping stone towards the 2050 vision of “Living in harmony with nature”. The present paper discusses how ‘biodiversity’ is central to the development of environment discourse, especially when issues concerning ‘biodiversity’ makes international negotiations and agreements controversial and highly politicized. Amongst issues, perhaps three appears to be crucial i.e. national sovereignty; conservation and sustainable use of biodiversity; access and sharing of benefits of biodiversity.
CBD: Relevance
CBD was signed in the year of 1992 at the United Nations Conference on Environment and Development(the Rio Earth Summit).CBD links traditional conservation efforts to the economic goal of sustainable using of biological resources. CBD has ensured that international environment law recognizes the conservation of biodiversity as “a common concern of humankind”, and at the same time remains an integral part of the development process.CBD is legally binding, and nation-states that join it are obliged to implement its provisions.
CBD covers ecosystems, species, genetic resources, biotechnology, and links traditional conservation efforts to the economic goal of using biological resources. It sets out principles for a fair and equitable sharing of the benefits arising from the use of genetic resources. While it reminds decision-makers that natural resources are not infinite and its sustainable use, it recognizes that ecosystems, species and genes must be used for the benefit of humans. The earlier conservation efforts were only aimed at protecting particular species and habitats. Further, CBD offers guidance based on the precautionary principle to the decision makers and demands that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.
To date the Conference of the Parties (COP) has held 14 ordinary meetings, and one extraordinary meeting, namely the Biosafety Protocol, which was held in two parts. From 1994 to 1996, COP was held annually, and thereafter meetings were held less frequently. However, following a change in the rules of procedure in 2000, COPs were held every two years. COP is the governing body of the Convention, and advances implementation of the Convention through the decisions it takes at its periodic meetings.
Through its Cartagena Protocol on Biosafety, it addresses concern of technology development and transfer, benefit-sharing and biosafety issues. It is the first international regulatory framework for the safe transfer, handling and use of Living Modified Organisms. Likewise, the Jakarta Mandate on marine and coastal biological diversity was adopted by the CBD Parties in 1995 to underline the importance of establishing coastal and marine protected areas. Subsequently, the CBD Parties have agreed that marine and coastal protected areas are one of the essential tools and approaches in the conservation and sustainable use of marine and coastal biodiversity. In the same year, Protocol concerning specially protected areas and biological diversity in the Mediterranean was adopted in Barcelona(came into force on 12 December, 1999). It is a key facilitator of CBD implementation in the Mediterranean area. Under the instrument, Parties are obliged to take necessary actions, In order to protect, preserve and manage in sustainable and environmentally sound way, areas of particular natural or cultural value, notably by the establishment of specially protected areas, and to protect, preserve and manage the threatened or endangered species of flora and fauna.
Another important instrument was the Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization. Adopted in the year 2010, the instrument sets out core obligations for its contracting Parties to take measures in relation to access to genetic resources, benefit-sharing and compliance. It also creates incentives mechanism for conserving and sustainably using genetic resources for human well-being.
Balancing Intellectual Property Rights and Biological Diversity: Key Issues
Article 8 (j), CBD encourages to take steps that respect, preserve, maintain knowledge, innovations, practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity. It also suggests use of measures that promote their wider application with the approval and involvement of the holders of such knowledge, and encourage the equitable sharing of the benefits. Article 15(7), CBD mandates that each contracting Party, upon mutually agreed terms, shall take legislative, administrative or policy measures, with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the contracting Party providing such resources. Under Article 16(5), CBD the contracting Parties are required to recognize patents and other intellectual property rights (IPRs)that may have an influence, and shall cooperate in this regard, subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives.
Now, the current IPR regime encourages commercialization of seed development, monoculture, protection of new plant varieties, microorganisms, and genetically modified organisms. As a consequence, the rich biogenetic diversity is being eroded irreversibly. The relationship between the CBD and IPRs has been even considered by the COP in a number of decisions. In this regard, invitation was made to Word Trade Organization (WTO) to consider relevant provisions of CBD, their interrelationship with the provisions of the TRIPS Agreement, and to further explore this interrelationship. Policy-makers and members of civil society have registered concerns that the TRIPS Agreement promotes private commercial interests at the expense of public policy objectives contained in the CBD. It is disastrous to allow commercial priorities at the expense of the diverse eco-systems. The extent IPRs are considered essential to the industries, and in view of the increasing corporate control of biotechnological research, demands revisit of CBD. In this sense many argue that CBD is now regarded as a case of a hard treaty gone soft in the implementation trajectory.
Indian Position on Biodiversity Conservation
India plays a significant role in the protection of biodiversity acknowledges the value of biodiversity for sustaining and nourishing human communities. There are17 “mega-diverse” nation-states that contain 70 % of world’s biodiversity. India is one of these megadiverse countries with 2.4% of the land area, accounting for 7-8% of the species of the world, including about 91,000 species of animals and 45,500 species of plants, that have been documented in its ten bio-geographic regions. In order to honour the mandate of CBD, India had enacted the Biological Diversity Act, 2002for preservation of biological diversity, and establishes a mechanism for equitable sharing of benefits arising out of the use of traditional biological resources and knowledge. The Act establishes Authorities at both Central [National Biodiversity Authority (NBA)] and State level [State Biodiversity Board (SBB)].India has framed Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014 in pursuance of the Nagoya Protocol. As a result, any person who intends to obtain any IPR by whatever name called, in or outside India, for any invention based on any research or information on any biological resources obtained from India, shall make an application to the NBA in Form III of the Biological Diversity Rules, 2004.Now, where the applicant himself commercializes the process or product or innovation, the monetary sharing shall be in the range of 0.2 to 1.0% based on sectoral approach, which shall be worked out on the annual gross ex-factory sale minus government taxes. Likewise, where the applicant assigns or licenses the process or product or innovation to a third party for commercialization, the applicant shall pay to NBA monetary sharing of 3.0 to 5.0% of the fee received (in any form including the license or assignee fee) and 2.0 to 5.0% of the royalty amount received annually from the assignee or licensee, based on sectoral approach. However, any person applying for any right under the Protection of Plant Varieties and Farmers’ Rights Act, 2001 is exempted from this procedure.
India is a leading country in having established a comprehensive legal and institutional system to realize the objectives of CBD. Besides, the efforts on behalf of NBA is recognized globally for its pioneering work to implement the CBD and fully operationalize the access and benefit-sharing provisions, among others through a national network of Biodiversity Management Committees, alongside the establishment of People Biodiversity Registers. There have been certain collaborative efforts, for instance the Government of India in collaboration with the Norwegian Government has established “Centre for Biodiversity Policy and Law” (CEBPOL) for strengthening the biodiversity policy and law in India.
Concluding remarks
Policy-makers have an important role to play in ensuring that policies and practices relating to IPRs, and the need for the conservation of biodiversity, remain mutually supportive. In this regard, Governments are required to adopt an integrated approach ‘across’and ‘between’ different national and international fora, to strictly implement the objectives and provisions of the CBD. Presently, CBD is in the epicenter of Global North-South debate, wherein developed States wants to promotes “scientific development, IPR for plant verities, genetically modified foods”,and developing States wants to extent protection on “agriculture, farmer’s rights, animal welfare, environment and ecology”.
We need to understand that the presentCOVID-19 pandemic has shown us how important is biodiversity in nature, and how scientific development and medicinal advancement are incomplete to handle situations like these. It is a clarion call from our creator is to remind ourselves of “live and let others live”. Extinction of species do affect our ecosystem, particularly when every specie has an important role to play on the planet. Biodiversity combines interactions of all living organisms and their existence on the planet. Only this time no Noah’s ark will come unless strict adherence to CBD is made. Indeed, itis possible to save all species in the mother earth because “Solutions are in Nature”.
*Assistant Professor, VSLLS, Vivekananda Institute of Professional Studies, New Delhi.
