Biological Diversity

Upcoming CBD meet: Sufficient to narrow the gap?


It’s been nearly 2 decades since the Convention on Biological Diversity (CBD) was adopted in the Earth Summit at Rio de Janeiro in 1992 and this year, which also happens to be the International Year of Biodiversity, marks the 10th meeting of the Conference of Parties (COP). It will take place from 18th – 29th October, 2010 at Nagoya, Japan. The item of primary importance on the agenda at COP 10 is that of creating international protocol on Access and Benefit Sharing (ABS), and India will be spearheading the developing country perspective for this meet. (For a rundown on the importance of ABS and areas around this, the UN University has put together a handy guide available here) (Image taken from CBD website here)

The CBD, when initially conceived, established three main goals: The conservation of Biological Diversity, the sustainable use of its components & the fair and equitable sharing of the benefits from the use of genetic resources. However, this carrying out of this third goal has proven to be very troublesome. With a great concentration of the world’s biodiversity in developing countries, there has been much controversy over the developed countries ‘pirating’ these resources and the associated traditional knowledge often prevalent amongst the indigenous people of the area, without giving them or the countries appropriate benefits from the usage of these resources and/or knowledge.  The example of the Neem patent that was issued and then finally revoked after a long drawn out battle by India is a common example of this. (Having said that, there are still apparently 90 more cases of patents based on Neem around the world that have been granted which India needs to fight against). 

This ‘biopiracy’, in fact has increased after the CBD came into existence. Constant pressure by the developing countries has brought into existence an ABS Working Group which started off negotiations in 2005 for an international regime on access and benefit sharing – seeking to do the same that the developed countries did for IP with the TRIPS regime – put in place an internationally harmonized regime so that any biodiversity/ traditional knowledge used/taken from these countries, gets its due. However, expectedly, this has not gone down well, especially since the developed countries have much more bargaining power over these resources without any such regime being in place. 
As Prashant’s post earlier had pointed out, the likelihood of the parties actually coming to a mutually agreed consensus is rather low. There was a draft protocol (available here) that was introduced in the 9th COP, however this has been much argued over with many key provisions ‘bracketed’ (referring to the provisions that are controversial and disagreed upon). The bloc of countries known as Like Minded Mega-diverse Countries (LMMC) led by Brazil has been pushing significantly in the negotiations for their position to be recognized in the protocol. The CBD Interregional Negotiating Group on Access and Benefit Sharing met earlier last month (18th-21st) in an attempt to conclude negotiations on certain issues, however this was largely unsuccessful (stating that there were still a number of key issues left to address) and will continue in the “Resumed 9th meeting of the Ad Hoc Open ended Working Group on Access and Benefit Sharing” on October 16th, just before the COP 10 on the 18th of October.
The main sections to this draft are essentially:
(a) Fair and equitable benefit sharing, (b) access to genetic resources, (c) compliance, (d) traditional knowledge associated with genetic resources, and (e) capacity building. I would hazard a guess that the Compliance section especially must be gathering much angst amongst the negotiators as they try to come to one final draft, since this effectively would determine its effectiveness as a legally binding document.

While most of the developing countries, don’t have national laws of their own addressing Biodiversity, India has done a considerable amount – instituting the Biological Diversity Act, 2002, the Biological Diversity Rules, 2004, the Rules for Protection, Conservation and Effective Management of Traditional Knowledge Relating to Biological Diversity, 2009 and importantly has also created a database of Traditional Knowledge so as to document available information. India will also hosting the Conference in 2012 marking the 20th anniversary of the CBD.
On the flip side (and ironically), US has not ratified the CBD claiming that it interferes with the Intellectual Property Regime, and ergo seems willing to continue what the exploited nations are calling biopiracy.

It’s to be seen if this meet at Nagoya, 18 years since the start of this initiative, makes significant (or any?) progress towards restoring, or rather, attaining some equity for the rich biodiverse countries by putting in place an appropriate benefit sharing mechanism with an effective compliance system.




Swaraj Paul Barooah

Swaraj Paul Barooah

Follow @swarajpb Swaraj has a deep interest in IP, Innovation and Information policy, especially when they involve issues relating to Access to Knowledge, Innovation incentive mechanisms, Digital Freedoms, Open Access, Education, Health and Development. After his BA, LLB (hons) from Nalsar Univ of Law, Hyderabad, he went on to do his LLM from UC Berkeley in 2010. He is now pursuing his J.S.D. degree from UC Berkeley where he is focusing on Drug Innovation Policy and Access to Medicines. Aside from SpicyIP, he is also engaged as a consultant on various IP matters, and is a visiting faculty member at Nalsar Univ of Law. He is also in the process of starting up a New Delhi based "IP, Innovation & Information Policy" focused think-tank.

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