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1. INTRODUCTION
1.1 BIODIVERSITY
Biodiversity or biological diversity - is the term given to the variety of life on earth. It includes
the habitats and ecosystems which support this life and how life-forms interact with each other
and the rest of the environment. Biodiversity covers plants, animals and micro-organisms both
on land and in water. It relates to both wildlife and domesticated crops and animals. The
biological diversity we see today is the result of millions of years of evolution Biodiversity
provides humans with food, fresh water, fuel, building materials and even the resources used to
develop most modern prescription drugs. For this reason, biodiversity can be considered as the
very raw material that sustains life on earth. Many industries, including forestry, fisheries, and
agriculture are sustained by Irelands biodiversity and the balanced development of these
industries is dependent on the sustainable use of these biological resources.

1.2 CONVENTION ON BIOLOGICAL DIVERSITY
The UN Convention on Biological Diversity (CBD) resulted from the Earth Summit held in 1992
in Rio de Janeiro. Ireland ratified the Convention in 1996. The CBD is pre-eminent amongst
nature/biodiversity related Conventions, both in terms of its widespread support (188 countries
plus the EU are Parties) and its comprehensive scope.
The Convention has three objectives, the conservation of biological diversity, the sustainable use
of its components and the equitable sharing of the benefits arising out of the utilisation of genetic
resources.
By becoming a Party to the Convention, Ireland has committed itself to working at national level
and to international measures to achieve these objectives. The Convention is aiming to secure a
significant reduction in the current rate of loss of biodiversity, across the globe, by 2010. The
CBD has developed seven thematic programmes of work aimed at meeting the 2010 target.
These thematic programmes are:
Agricultural Biodiversity;
Dry and Sub-humid Lands Biodiversity;
Forest Biodiversity;
Inland Waters Biodiversity;
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Island Biodiversity;
Marine and Coastal Biodiversity; and
Mountain Biodiversity.
All parties to the Convention are required to develop national actions to achieve the
implementation of these work programmes and must report periodically on progress in this
regard.

1.3 TRADE AND BIODIVERSITY, AND RELATED ISSUES
International trade has conventionally been destructive of biodiversity and peoples livelihoods,
by encouraging over-exploitation of natural resources, creating pollution through increasing
transportation as well as habitat loss by infrastructure development.
The World Trade Organization needs to focus on trade matters without linking trade with social
issues. India is opposed to multilateral rules on investment and competition in the WTO, as well
as in linking trade with social issues.
There should be international recognition of effective and credible suigeneris systems of
protection of biodiversity and the associated traditional knowledge, including by way of prior
informed consent and benefit sharing for traditional knowledge used by patent applicants and
others.
International Property Right (IPR) protection should not displace the developing countries as
competitors, and transform them into mere suppliers of raw materials. Patenting of biological
resources must not deny or restrict developing countries access to their own biological
resources.
International cooperation and initiatives are required to strengthen the monitoring of bio-piracy
and to establish international mechanisms to ensure equitable sharing of benefits from the use of
biological and genetic resources.

1.4 ECONOMICS, TRADE AND INCENTIVE MEASURES
Biodiversity generates and helps to maintain the supply of a myriad of goods and services that
are essential for human well-being and economic development. Agriculture, for example, would
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simply not be possible without biological diversity and its contribution to the development of
seed varieties and the breeding of domesticated livestock, as well as through the numerous
species interacting with agriculture, such as pollinators or symbionts.


Biodiversity is under attack by a number of powerful external forces. From an economic
viewpoint, perhaps the most dangerous force is simple neglect: an under-estimation of the value
of biodiversity, an ignorance of its essential role in maintaining the foundations for human well-
being and economic growth alike.

It is well known among economists that markets alone do not assign appropriate monetary value
to biodiversity. Hence, without policy intervention, market prices do not properly reflect the
losses to society as a whole arising from biodiversity degradation. This market failure leads
individuals, companies and governments to use biodiversity in an unsustainable manner.

The Conventions economic work focuses on two areas. First, it aims to elicit the value of
biodiversity through appropriate valuation tools and to "internalize" this value into market prices
through the use of appropriate incentive measures. Such measures can include, for instance,
payments for private conservation efforts, fees on biodiversity-degrading activities or
transferable quotas for biological resources. As an important milestone, a set of proposals was
adopted under the Convention to provide guidance to governments on how to design and
implement such incentive measures.


A related objective is addressing policies or practices that generate "perverse" incentives, that is,
incentives that accelerate the loss of biodiversity. Examples include those public subsidies that
support unsustainable farming, forestry or fishery activities. The Conference of the Parties to the
Convention encouraged Parties and other governments to identify such perverse incentives and
consider the removal or mitigation of the negative effects on biological diversity.


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Many of the goods generated through biodiversity are the subject of international trade, either as
commodities or in manufactured goods. In addition, biodiversity plays an important role in
poverty alleviation and, hence, wealth creation. It is therefore evident that the maintenance of
biodiversity and the promotion of trade are interdependent. To address this interdependence
forms the second area of economic work under the Convention.


While the Convention does not require measures that are directly related to international trade,
there is a close relationship between many of its provisions as well as those of its Biosafety
Protocol and the provisions of the multilateral trade agreements of the World Trade
Organization (WTO). For instance, the Parties to the Convention have emphasized the
interrelationship between the Convention and the provisions of the WTOs Agreement on Trade-
related Aspects of Intellectual Property Rights (TRIPs), and the need to further explore this
interrelationship. Similarly, Parties have underlined the relationship between the Biosafety
Protocol and the provisions of the WTO Agreements on Technical Barriers to Trade (TBT) and
Application of Sanitary and Phytosanitary Measures (SPS).


The trade-related work of the Convention is part of a broader effort of the international
community to ensure harmony and mutual supportiveness between trade rules and international
environmental law, in order to both maintain biodiversity and promote international trade.


1.5 PROGRAMME OF WORK ON INCENTIVE MEASURES
In Article 11 of the Convention, the international community acknowledged the importance of
incentive measures in achieving the conservation and sustainable use of biological diversity.
In 2000, at its fifth meeting, the Conference of the Parties to the Convention adopted a
programme of work on incentive measures which spells out a number of targets as well as the
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activities required from Parties, other governments, international organizations and the
Secretariat to achieve these targets.
The expected results of the work programme are:
a. The assessment of representative existing incentive measures, review of case studies,
identification of new opportunities for incentive measures, and dissemination of
information, through the clearing-house mechanism and other means, as appropriate;
b. The development of methods to promote information on biodiversity in consumer decisions,
for example through eco-labeling, if appropriate;
c. The assessment, as appropriate and applicable to the circumstances of Parties, of the values
of biodiversity, in order to better internalize these values in public policy initiatives and
private-sector decisions;
d. A consideration of biodiversity concern in liability schemes;
e. The creation of incentives for integration of biodiversity concerns in all sectors.
Importantly, the Conference of the Parties decided to integrate actions on incentive measures in
thematic work programmes and to ensure synergy with activities on sustainable use, noting that
incentive measures are essential elements in developing effective approaches to conservation and
sustainable use of biological diversity especially at the level of local communities.
In order to achieve these and other results of the work programme, the Conference of the Parties
requested the Executive Secretary to collaborate with relevant organizations, such as the Food
and Agricultural Organization of the United Nations, the Organization of Economic Cooperation
and Development, the United Nations Conference on Trade and Development, the United
Nations Development Programme, and IUCN-The World Conservation Union, in order to
engage in a coordinated effort.
The programme of work is scheduled for in-depth review by the Conference of the Parties at its
ninth meeting, in 2008.
1.5 BIODIVERSITY AND INTERNATIONAL TRADE
The trade-related work under the Convention captures the different aspects of the complex
relationship between international trade and the objectives and provisions of the Convention.
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The production of value-added goods and services derived from biodiversity, both for
domestic and for international markets (Biotrade) may generate incentives for the
conservation and sustainable use of biodiversity. Accordingly, a number of thematic
programmes of work under the Convention call for the increased marketing of products
derived from sustainable use (see pages on market creation for further information).
The Conference of the Parties adopted a provisional framework of goals and targets to
enhance the evaluation of achievements and progress in the implementation of the Strategic
Plan of the Convention. Target 4.3 of this framework calls for no species of wild flora and
fauna to be endangered by international trade. The Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) is the key partner in implementing this
target, and both Conventions are cooperating closely to implement this target, including
through the liaison group of biodiversity-related Conventions.
While the Convention on Biological Diversity does not require measures that are directly
related to international trade, there is a close relationship between many of its provisions as
well as those of its Biosafety Protocol and the multilateral rules and provisions of the World
Trade Organization (WTO). For instance, the Parties to the Convention have emphasized the
interrelationship between the Convention and the provisions of the WTOs Agreement on
Trade-related Aspects of Intellectual Property Rights (TRIPs), and the need to further explore
this interrelationship. Similarly, Parties have underlined the relationship between the
Biosafety Protocol and the provisions of the WTO Agreements on Technical Barriers to Trade
(TBT) and Application of Sanitary and Phytosanitary Measures (SPS). Accordingly, the
Conference of the Parties requested the Executive Secretary to closely interact and cooperate
with the relevant Committees of the WTO as well as with its Secretariat on these issues of
mutual interest, and to also examine the impact of trade liberalization on biodiversity.

1.6 BIODIVERSITY AND THE EMERGING WTO REGIMES
Global biodiversity is a vast and often undervalued resource. Encompassing every form
of life from the finest microbes to the mightiest beast, biodiversity is the variety and variability
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by all plants, animals and microorganisms along with the ecological processes/complexes of
which they are a part. The whole system is referred as biosphere. Biodiversity is autosustainable,
self-generating if there is no natural and/or man made perturbations. The only external input to
the biosphere is solar energy which fuels the system as a whole. Biological diversity cannot exist
without the support of ecological process (such as photosynthesis, water, and number of other
biogeochemical cycles and soil formation) and organic evolution (mutation, recombination and
natural selection). The latter lead to speciation, competition, predation/parasitism, mutualism, co-
adaptation and coevolution and finally the survival of the fittest.
There are two main functions of biodiversity. Firstly, on it depends the stability of the
biosphere, which in turn leads to stability of climate, water, soil, chemistry of air and overall
health of the biosphere. Secondly biodiversity is the source from which human race depends for
food, fodder, fuel, fibre, shelter, medicine and raw materials for industrial goods to meet his ever
changing and ever increasing demand. The warm and humid tropics which are incidentally where
the developing countries are located are richer in biodiversity. But it is the biodiversity poor
nations of temperate region with their superior technological capability and managerial ability
who are using the biodiversity for their best advantage and making the biodiversity rich nations
poor. It is certainly a strange paradox.
The extent and nature of biodiversity on earth has not remained static. In the geological
history of the earth there have been both evolution and diversification, and at least five major
episodes of mass extinction of species due to natural perturbations occurred in the geological
past. However, today's extinction of biodiversity can be traced to perturbations emanating from
the action of human race. Human interference leading to large scale biodepletion began with
industrialization, threatening the very survival of human race. The realization of this impending
danger led to the world community to meet at Stockholm in 1972 and discuss about human
environment. This ultimately led to the Earth Summit at Rio in 1992 wherein the countries of the
world resolved to sign the global treaty "Convention on Biological Diversity" (CBD). Side by
side there was another treaty piloted by the World Trade Organization (WTO). Trade Related.
Intellectual Property Rights (TRIPs) evolved under the GATT agreement of WTO for regulating
international trade and monopolistic rights called Intellectual Property Rights (IPR).
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CBD marks an historic commitment by nations of the world to conserve biological
diversity, to use biological resources sustainable and share equitably the benefits arising from the
use of genetic resources. It is the first global agreement to address comprehensively all aspects of
biological diversity-genetic resources, species and ecosystems. Genetic resources have been
traded across the world for centuries, though rarely to the advantage of biodiversity rich nations.
CBD has now created a new international legal framework which regulates access to genetic
resources and promote fair and equitable sharing of benefits arising from their use. CBD
reaffirms the nation's sovereignty over genetic resources and stipulates a framework by which
parties can assert their sovereign rights and demand a fair and equitable share of benefits. Article
8 (j) of CBD further stipulates an equitable sharing of the benefits arising from the utilization of
traditional knowledge, innovations and practice. Intellectual Property Rights (IPRs) are
essentially a concept and practice quite alien toihe third world. A number of legal rights have
developed in various jurisdictions in the west during the past 100 yearsto allow ownership of or
control over intangible products. These rights known collectively as IPR, have defined "Property
Rights" "covering all things which emanate from the exercise of human brain". Historically it is a
practice developed in the industrialized societies of the west to protect the product of human
creativity, so as to provide economic incentive to those engaged in such creation. The products
of such creations are recognized as property. 'IPR' include patents, Plant Breeders Rights (PBRs),
copy rights and trade secrets. A patent is a legal certificate that gives an inventor exclusive rights
and prevent others from producing, using, selling or importing the invention for a fixed period
(usually 17-20 years). Legal action can be taken against those who infringe the patent by copying
the invention or selling it without permission from patent owner. Patents can be bought, sold,
hired or licensed.
Originally biological products and processes were not eligible for intellectual property
protection, but the multinational seed and drug companies in the developed countries have
lobbied and are now successful in extending the IPR rights over life forms. This
commercialization and the accompanying assignment of monetary value over life forms,
undermines the CBD's ethical approach towards conservation, which is based on the intrinsic
value of all components of biological diversity. Article 27(3) (6) of the TRIPs text of the draft
GATT agreement appears to exclude plants and animals from being patented. However, the same
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phrase in the US patent legislation has not prevented the US Patent and Trade mark office and
courts of law from allowing patenting of more and more life forms. The first patent on life was
recognized by US Supreme Court in the Chakrabarty Case in 1980 when genetically modified
Pseudomonas bacteria was accepted by the court as an invention of the Scientist and, therefore,
patentable. The slippery slope towards ownership of all life forms was thus created by this US
Supreme Court decision. In 1988 the first patent of a living animal (a genetically engineered
mouse for cancer research) was approved for patent. There are over 190 genetically engineered
animals including cows, pigs, mice and fish awaiting patenting in US. Patenting human gene is
also in the horizon unless the international community, both citizens and governments, start
rejecting it.
Attempts by developing countries to revise the international regime for IPRs have been
completely displaced by the successful efforts of the developed countries to include IPRs in the
agenda for the Uruguay Round GATT. This has profound implications. A universal set of norms
based on the current levels of protection granted in the most technologically advanced countries
will replace the present system which allows freedom of each country to adopt, within certain
limits, the regime of protection that it deems best suited to its own development needs and to the
value of each society. To compound this problem new trade related patentable rights have been
created, including property rights_ in biodiversity. This threatens the use and conservation of
biological diversity and particularly affect the poor, biodiversity rich, nations. Implementation of
CBD in its letter and spirit is the only solace for the world to pave the way for an equitable
North-South relation and guard against the adverse ecological, social and ethical impacts of
technology, especially biotechnology. It will all rest upon the outcome of the negotiations among
the parties to be held sometime later in this year.

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2. BIODIVERSITY TREATY AND TRADE (BIODIV)

2.1. THE ISSUE
The Convention on Biological Diversity was one of two agreements signed at the United
Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro from
June 3-14, 1992. This agreement was unique in that its objective was to protect all species and
ecosystems in the world as opposed to specified endangered species. In the convention,
biological diversity is defined as: the variability among living organisms from all sources
including, among other things, terrestrial, marine and other aquatic ecosystems and the
ecological complexes of which they are part; this includes diversity within species, between
species and of ecosystems. The objectives of the convention are as follows: the conservation of
biological diversity, the sustainable use of its components and the fair and equitable sharing of
the benefits arising out of the utilization of genetic resources, including by appropriate access to
genetic resources and by appropriate transfer of relevant technologies, taking into account all
rights over those resources and to technologies, and by appropriate funding. The point of
contention arising out of this convention centered on the transfer of biotechnology and the
subsequent protection of intellectual property rights.

2.2. DESCRIPTION
Although the conservation of biological diversity has only been in the public consciousness
for less than two decades, scientists have been concerned about the issue for more than half a
century. Soviet Academician Nikolai Ivanovich Vavilov, one of the earliest advocates of
biological diversity and an agronomist and geneticist, pointed out the great importance of
conserving biological diversity in plant life. In 1932 during the 6
th
International Congress of
Genetics held at Ithaca, New York, the Soviet pioneer pointed out that:
"The growing needs of civilized man and the development of industry make the introduction
of new plants necessary. The vast resources of wild species, especially in the tropics, have been
practically untouched by investigation". This early notion of biodiversity as a valuable resource
remains. What has been added now to the issue is the absolute and daunting scarcity of this
resource which is life sustaining to people and to the earth. The great importance and indeed
necessity of biodiversity cannot be underemphasized. Biodiversity is essential to agriculture,
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development of medicines, clean water, flood control, resource-based industries such as
fisheries, and maintaining ecological balance. For example, it is estimated that there are between
5 million and 30 million species on this planet of which only 1.7 million have been studied and
classified. The scientific projections of species loss numbering in the hundreds of thousands by
the year 2000 and the most visible image of the burning tropical rain forests, the home of over
half of all species on earth.
In 1987 the United Nations Environment Programme first called on the governments of the
world to consider a legal instrument to conserve biological diversity and the sustainable use of
biological resources. The Ad Hoc Working Group of Experts on Biological Diversity was
established to research and analyze the most efficient ways in which to save our planet's
biosphere. The UNEP then established the Intergovernmental Negotiating Committee for a
Convention on Biological Diversity in order to negotiate and draft an agreement all nations could
agree to. The final convention was adopted on May 22 in Nairobi just prior to the Earth Summit.
The convention provides for:
1. adoption of national regulations to conserve biological resources,
2. imposition of legal responsibility on countries for the environmental impacts of
their private companies in other countries.
3. technology transfer on concessional terms,
4. regulation of biotechnology firms, and
5. access to and ownership of genetic material,
6. compensation to developing countries for extraction of their genetic materials.

Overall, there are three main objectives to the convention:
the conservation of biological diversity, the sustainable use of its components, and the fair and
equitable distribution of benefits derived from "genetic resources" (defined as the diverse gene
pool of life on earth). All contracting parties to the convention are thus required to enact
regulations in order to conserve biological diversity for both present and future generations
including the enactment of laws similar to the Endangered Species Act of the United States. All
parties to the convention are also to promote "environmentally sound and sustainable
development in areas adjacent to protected areas with a view to further protection of these areas."
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Another provision was intended to ensure bio-safety by controlling the risks associated with
the use and release of genetically modified organisms. This byproduct of biotechnology could
have adverse effects on biodiversity. The promotion and encouragement of public education and
training were other dominant themes in the treaty. The importance of traditional knowledge of
indigenous peoples regarding biodiversity and its uses was emphasized as well. Article 8(j)
provides that traditional knowledge, innovations, and practices of indigenous peoples relevant to
the conservation and sustainable use of biodiversity must be preserved, protected, and
maintained. Much of the convention focused on providing help to developing countries who had
special needs. The help was to be provided by the industrialized countries through training,
technology access and transfer, and funding. It is this theme of the industrialized nations paying
for these ambitious endeavors which has caused most of the controversy over this significant
convention.
The most conflictual segment of the convention, especially in the eyes of the United States,
centered on the connection between the environmental aspects of the treaty and its trade impacts.
The key trade implications of the convention may be summarized with one word; biotechnology,
which has been seen by some to become too closely associated with biodiversity. It is interesting
to note for example, that the terms in the convention and in general discussion have obtained an
economic base, some say to the detriment of the overall objective of the convention. For
example, some of the terms generally used throughout the document include: genetic resources,
biological resources, biotechnology, country of origin of genetic resources, country providing
genetic resources and regional economic integration organization. Yet, it is persuasively argued
that only by couching this serious issue in economic terms will it garner the attention and support
it deserves.
Biotechnology, as defined in the treaty, is any technological application that uses biological
systems, living organisms, or derivatives thereof, to make or modify products or processes for
specific use. The convention states that "Each contracting party...undertakes...to provide and/or
facilitate access for and transfer to other Contracting Parties of technologies that...make use of
genetic resources and do not cause significant damage to the environment." Furthermore,
technology transfer to developing countries must be "under fair and most favorable terms," while
providing for "adequate and effective protection of intellectual property rights" (Article 16). It is
this delicate balance which is at the center of the controversy. It is the fear, particularly of the
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Bush Administration at the time of the signing, that U.S. businesses would be harmed by the
convention, particularly the booming U.S. biotechnology firms.
Other provisions of the treaty protecting genetic resources and underscoring the sovereign
ownership of such resources also made the U.S. biotechnology and drug industries hesitant.
Several European nations including the United Kingdom as well as Japan issued interpretive
statements regarding these sensitive issues which directly affected their trade and general
economies. Funding too is always an issue of controversy. The Global Environment Facility
(GEF) is the current financing institution for the implementation of the convention. The
industrialized nations are to provide new and additional funding in order for the developing
nations to be able to effectively meet the provisions. In addition to the GEF, a Secretariat has
been established for administrative purposes as well as a scientific and technological advisory
committee. A Conference of the Parties will meet regularly to monitor compliance and
implementation.

2.3. DISCOURSE AND STATUS: AGREEMENT AND COMPLETE
As of September 1994, 167 countries had signed the convention and 89 states had ratified it.
Thirty signatories must have ratified the convention before it entered into force. Thus, for the
ratifiers, the convention is in force. 178 nations participated at the UNCED in Rio; thus, a little
under half of the states present actually ratified the convention. While this is a non-self
executing convention, it may take longer for national legislatures to approve such a treaty. This
is because the convention requires implementing legislation. Overall, this is a completed
negotiated agreement; however, the success of its implementation is won only with the full or
near full participation of the nations of the world. Of particular importance is the participation of
the major industrialized nations like the United States not only because of their wealth of
financial resources, but because of their wealth of technological resources.

2.4. FORUM AND SCOPE: UN AND MULTILATERAL
The United Nations Conference On Environment and Development was held in Rio de
Janeiro from June 3-14, 1992. The Rio Earth Summit was the largest international conference
ever held with over 100 heads of state or governments in attendance, 8,000 delegates, 9,000
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members of the press, and 3,000 accredited representatives of NGO's. It was in this multilateral
setting that the Convention on Biological Diversity was signed

2.5. TYPES OF MEASURE: MANY
Possible related measures include: licensing (LICEN), regulatory standards (REGSTD), and
intellectual property rights (IPROP), and administration (ADMIN). Licensing is the tool used to
insure intellectual property rights. Since this is an issue of such great importance to the
industrialized nations, this will play a great role in the implementation of the agreement's
provisions dealing with technology transfer and the sharing of benefits.
Regulatory standards will be necessary in order to effectively protect endangered species and
maintain fragile ecosystems. Regulations in fact will be the most visible implementation
through the local and national laws which will be created.
The United States in fact is already in compliance with the convention, in light of the
environmental regulations enacted over the past decade. Developing and underdeveloped
nations in the South, who own the world's greatest wealth of biological resources now, under the
convention, may establish regulations governing access to their resources. In a statement issued
by the Patent and Trademark Office of the U.S. Department of Commerce, the Agreement on
Trade-related Aspects of Intellectual Property, concluded at the Uruguay Round of GATT was
stated to be in agreement with the Biodiversity Treaty. The denial of intellectual property rights
or the inadequate protection of them was stated to be an "egregious burden to trade." The paper
went on to state that: "improved protection of intellectual property will strengthen the
economic incentives outlined in the Convention on Biological Diversity. Strong intellectual
property systems facilitate research, development and
commercialization of new technologies. Global consistency in such systems will facilitate
international cooperation and technology transfer." Furthermore, according to Commerce, by
promoting intellectual property rights, "countries will establish market conditions that will
encourage sound and sustainable commercial development of biodiversity."

2.6. DIRECT VS. INDIRECT IMPACT: INDIRECT
The impact is indirect because regulations and agreements between states must first be
enacted which will then have an impact on trade between contracting parties. Such
environmental regulations and transfer agreements between countries take place
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"inside the border."

Trade Product Identification: MANY
Biodiversity may be divided into three major groupings in terms of products or biological
resources: (1) pharmaceutical, (2)genetic, and (3) agricultural. More specifically, biodiversity
provides us with food, fiber, medicines. Also, according to Tim Wirth in the Senate hearings on
the convention, "biological materials are fundamental in our industrial processes and enable
development of new products from the rapidly expanding field of biotechnology."

2.7. ECONOMIC DATA
Pharmaceutical industry output: Plant species provide the active ingredient of an estimated
25 percent of the prescription drugs sold in the United States, with an annual market value well
over $10 billion. Also, a number of important medical compounds have been developed from
marine organisms. Sponges, for example, are the source of anti-viral drugs with annual sales of
$50-$100 million. Discoveries from biodiversity have also been translated into savings on the
health and productivity of the work force. For example, a bacteria discovered in Yellowstone's
hot springs has permitted a dramatic reduction in time needed to analyze medical tests. The
fantastic uses of biotechnology are best illustrated by the use of genetic diversity in plant
breeding. U.S. wheat farmers are using wild strains from the Near East which are resistant to
aphids and other pests. Economically speaking, experts have estimated that such uses of
biodiversity have added a value of $3.2 billion to our $11 billion annual production of soybeans,
and about $7 billion in added value to our $18 billion annual corn crop.

2.8. TRANS-BOUNDARY ISSUES: YES
The main conflict surrounding the ratification of this convention is a trans-boundary issue
between the industrialized nations of the North and the less developed nations of the South. The
issue involves that of benefit sharing which as mentioned throughout this case seemingly
conflicts with the protection of intellectual property rights. The convention, again in its wisdom
and vision, has been able to attain equitable sharing and protection of IPRs. Essentially, under
the convention, the South has more control over the use of its raw material, biological resources
while the North maintains its ability to require the South to purchase licenses for its technology.
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This benefits sharing scheme is intended to facilitate equitable trade. A prime example of the
potential success of such a plan is the Merck-INBio agreement as described by Dr. Walter Reid
of WRI. A 1991 agreement between Merck Pharmaceuticals and the Costa Rican National
Biodiversity Institute (INBio) under which Merck receives chemical extracts from INBio in
return for an up-front payment, royalties, and technology transfer to the country. The benefits
returning to the country all support conservation initiatives. Merck, Costa Rica, and biodiversity
conservation all benefit from this business alliance premised on negotiated terms for exchange of
financial, technological, and genetic resources.
Other similar agreements have already been concluded and prove hopeful that this convention
is mutually beneficial for both the North and South. See also Shaman Pharmaceuticals case for
example.

Rights: YES
Many times the global ecology may be at odds with local ecology. This conflict can manifest
itself in one of two ways. The local cultural tradition for harvesting resources may be at odds
with a conservation decision made at a global level. Also, there exists the fundamental conflict
which arises in the South when they are called to conserve their resources. They make the
effective argument that their development demands an unfettered use of their natural
endowments and furthermore, that the North was able to become the economic giant it is today
because of its unrestricted exploitation of its resources and of the resources of the South as well.
The writers of the Treaty were sensitive to these conflicts. There are several international
treaties, both declaratory and legally binding, which spell out the rights of indigenous
populations with regard to natural resources and development. For example, in the Draft
Declaration on the Rights of Indigenous Peoples, paragraph 18, it is stated that, "Indigenous
peoples have the right to the protection and where appropriate, the rehabilitation of the total
environment and productive capacity of their lands and territories, and the right to adequate
assistance including international cooperation to this end." The Convention on Biodiversity
seeks to comply with these other treaties in the respect for these people's culture and traditional
knowledge and experience.

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3. TRIPS AND BIODIVERSITY
In the last decades there has been a distinct shift in the way biological resources are viewed.
What was a natural resource, accessible to all, has now become an economic resource, to be
privatised. In this process, public property jointly held and nurtured by communities, is
converted to a private property owned by a few and withheld increasingly from the local
communities.
This shift can be seen in recent international and national developments. Two major international
agreements, the Agreement on Trade-Related Intellectual Property Rights (TRIPS) of the WTO
and the United Nations Convention on Biological Diversity(CBD), with mutually conflicting
approaches, are now shaping the domestic regimes of member states with respect to biological
resources and associated indigenous knowledge. The Agreement on TRIPS engenders
privatisation of biological resources by allowing patents to be granted on biological materials
and associated indigenous knowledge, and the CBD acknowledges that local communities have
rights over bio resources and indigenous knowledge.
Article 27.3(b) of TRIPS has brought biological resources under the purview of intellectual
property rights, hence providing for private ownership over bio resources with exclusive
commercial rights.
Biological diversity has become the sought after raw material of the life sciences industry.
Whilst corporations in the developed world have mastered the techniques of recombinant DNA
technology, the raw matter is located principally in the tropical and semi-tropical countries of
the developing South. Not only the resources, but the associated knowledge of their properties
are located within indigenous communities.
In order to gain access to biological resources, the life science corporations, through their
governments, have extended the scope of intellectual property rights to biological materials at the
global level. This development took place in the Uruguay GATT Round that began in 1986 and
concluded in Marrakech in 1994. During this round, life forms and genetic resources were
brought into the ambit of one system for intellectual property rights.
TRIPS covers, amongst other things, copyright and related rights, trademarks such as the
protection allowed to Champagne wine and Scotch whisky, industrial designs, patents and plant
variety protection, layout-designs of integrated circuits used in electronics, protection of
undisclosed information and trade secret and unfair competition.
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3.1 INTELLECTUAL PROPERTY RIGHTS OVER BIOLOGICAL
MATERIALS
The key element of the TRIPS Agreements related to agriculture and food security is the
requirement for WTO Members to make patents available for any inventions, whether products
or processes, in all fields of technology without discrimination. One reason for greater interest in
patents is the rapid development of biotechnology in agriculture. There are four options within
Article 27.3 (b). Firstly, o allows patents on everything. This would include all materials and all
forms of technology. Secondly, to exclude plants, animals and biological processes, but not plant
varieties. This means that whereas naturally found plants, animals and the natural biological
process by which they are created, could be excluded from patents, crop varieties could not. The
third option is to exclude plants, animals and biological processes from patenting and to
introduce a special sui generis for the protection of plant varieties. A sui generis system allows
the country to create a system of their choice that would enable the minimum protection agreed
to in the WTO. The final option is to exclude plants, animals and essentially biological processes
from patenting but not plant varieties, and to provide a sui generis right. This last would mean
that plant varieties could be patented or protected by an independently created sui generis
system.
Most developing countries have chosen option 3. A sui generis system of protection is one
adapted to particular subject matter, and allows countries to make their own rules for protection
of new plant varieties. One possible sui generis system likely to be recognised is the
International Union for the Protection of New Varieties of Plants (UPOV) system. This was
initially developed in Europe and has now been adopted by the industrialised countries. The
UPOV system has undergone several changes after its formulation in 1961, but these have
resulted in almost no concessions for farmers and breeders.
Article 27.3(b) of TRIPs is perhaps the most controversial clause of the entire WTO agreement.
It requires members to provide for the patenting of micro organisms and genetically engineered
organisms ("non-biological and microbiological processes") and WTO members are now in the
process of defining their positions regarding the future of the provisions. There are indications
that a few members like the US, would like the sui generis option to be eliminated altogether,
while most developing countries are preparing national legislation to implement it. There are
proposals to treat UPOV as the only sui generis option for plant varieties. UPOV is not in the
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interest of developing countries since it does not have any rights for farmers. There is only one
right, that granted to the breeder, which in todays context is increasingly the company. Patents
on seeds would severely restrict the farmers access to them, since they would have to buy fresh
seed for every sowing. Women would be particularly disadvantaged under UPOV since their
access to their own seeds ensures that they can contribute to food and nutrition for the household.
There are potential conflicts between TRIPs patenting regime and the Convention on Biological
Diversity (CBD), as well as the International Treaty on Plant Genetic Resources (ITPGR) of the
FAO. These conflicts are widely seen as more political than legal in nature, and the US
government has made early implementation of TRIPs a top priority of its foreign policy. These
matters are likely to emerge as matters of dispute under the WTO's dispute settlement system in
the coming years.
UPOV 1991 conditions will significantly diminish the farming community's capacity to be self
sufficient in seed and self-reliant as agricultural producers. It promotes the interests of
commercial plant breeders in the North rather than the farming communities. UPOV requires
plant varieties to be "distinct" from other varieties, produce genetically "uniform" progeny, and
remain genetically "stable" over generations. After the 1991 UPOV amendment, a new quality3
"novelty"- has been added to the minimal characteristics required The uniformity requirement
Has potential to contribute to genetic erosion. In addition, the cost of maintaining UPOV
certification is beyond the means of most farmer-breeders. Although peasant farmers have also
cultivated plant varieties expressing desirable traits over time, their varieties rarely meet the
UPOV requirements list.
These conditions for a Plant Breeders Right certificate under UPOV go contrary to the goal of
enhancing genetic diversity. Furthermore, the kind of protection it grants is an exclusive
monopoly right. This contrasts sharply with the broader goals of collective remuneration and
benefit-sharing expressed in a number of other global agreements.

3.2 UPOV IS AGAINST DEVELOPING COUNTRY INTERESTS
A number of influential bodies, including the WTO itself, are pushing for a narrowing of the sui
generis option to one legislative model provided by the UPOV. UPOV is not mentioned in the
TRIPS Agreement. Independent legal and economic experts have reiterated that UPOV should
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not be accepted as an effective sui generis system for TRIPS and that there is ample scope for
manoeuvre, flexibility and national discretion in interpreting the sui generis option.
The UPOV system promotes commercially bred plant varieties for industrial agricultural
systems. Under this system farmers have to pay royalties on seed and the seed sector becomes an
investment opportunity for chemical and biotech concerns. Plants are bred to grow successfully
with their chemical inputs or with their patented genes at the expense of more sustainable
biodiverse systems. Since Plant Breeders Rights (PBRs) are only given for a variety that is
genetically uniform they limit both what kind of seeds can be marketed and who can market
them. UPOV automatically discourages genetically diverse and locally adapted seeds from the
market and from the field.
The impact of UPOV type regimes will be highly detrimental to developing country situations.
Firstly, farmers who have contributed the varieties on which plant breeders base their own
varieties would have no rights, only the breeders would. Secondly, the UPOV conditions are for
industrial economies where only 2 to 5% of the population practices agriculture and there are no
small and marginal farmers. UPOV laws advantage countries where agriculture is largely a
commercial activity. For the majority of farmers in Asia, Africa and Latin America however, it is
a livelihood.
Applying the TRIPS framework to bio resources is against the interests of indigenous and
farming women and men. Women are the most skilled in the use of bio resources for food,
medicine and other uses, and use these resources to improve the health and nutrition status of
their families, as well as to earn some income. The TRIPS Agreement does not recognise that
local communities have any rights over bio resources and associated knowledge. It fails to
acknowledge or protect farmers rights, explicitly recognised in the CBD and ITPGR. In
addition, the TRIPS Agreement, unlike CBD or ITPGR, does not acknowledge the essential role
of women in rural communities in conserving bio diversity. It does not make any provision to
ensure benefit sharing from technology and innovation, or require any prior informed consent of
the people (primarily women) whose knowledge is tapped for technological innovation.

3.3 IMPACT ON BIODIVERSITY AND COMMUNITIES
Biodiversity is the basis of food and livelihood as well as human & animal health security for
poor and marginalised communities. To alter the dynamics of control and usage of biodiversity
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through IPR rules will further impoverish and marginalise local communities, and women will
be disadvantaged both in terms of their economic and decision making roles. IPR regimes on
bioresources and the commercialisation of these for markets will result in resource depletion.
The case of the Canadian farmer Percy Schmeiser and his run in with Monsanto, over an alleged
violation of IPR shows the way IPR regimes are being implemented by corporations to establish
monopolies. Monsanto sued Schmeiser for huge damages for violating its patent on Roundup
Ready canola after specimens of the proprietary canola were found on Schmeisers property.
Canola, is a cross pollinating crop so the likely source of the offending canola was pollen from a
nearby Roundup ready field but the case demonstrates the extent to which MNCs will go to
establish monopolies on bioresources. Such actions would have grave consequences in
developing country situations since denying rights over vital resources would ultimately affect
the communitys ability to survive.
Commercial interests that target bio resources on a large scale for the market will threaten the
resource base, and with it, the knowledge base developed around the bio resources. The impact
on women and through them, families, will be immediate. There is a steady depletion of rare
medicinal flora from the hill regions because of collections being conducted by pharmaceutical
companies. A sub-species of Taxus baccata, the Himalayan Yew tree in the Himalayan region is
facing near extinction thanks to over exploitation for its the cancer curing properties. Large areas
of the Kumaon and Garhwal Himalayas in India have been stripped of medicinal plants by head
loaders collecting for foreign and Indian companies. This devastation of flora means that women
lose the resources they need for use in home remedies to treat their families and their livestock.
Patents on seeds would take away the womens ability to breed new, locally adapted varieties for
food, healing and rituals. This would strike at food and nutritional security of families and also at
the socio-cultural identity of communities. Women have bred varieties for special uses integral to
local food habits and cultural and religious practices. Some varieties are offered to the Gods at
certain festivals. Still others play a role in rituals during marriage and death ceremonies.
When patents are permitted, there is currently no requirement for disclosing the source of the
plant material, nor the key information lead for the claimed invention, that is the indigenous
knowledge of the characteristics, say of the particular medicinal plant. Biopiracy is a
misappropriation of the intellectual property of local communities. In the case of the patent on
turmeric, or neem, the knowledge of the wound healing property or the bactericidal property of
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the respective plants was the basis of the invention that was granted a patent by the US Patent
and Trademark Office. The consequences could be twofold. Exercise of the patent in India could
lead to corporate control over wound healing or antiseptic products derived from turmeric and
neem. On the other hand if such products had export potential to the US, such an opportunity
could be denied because the existing US patent could be used to block any imports.
Whether in the field of medicinal plants or in agriculture, it seems clear that women will be
excluded from the decision making process. They will have less say in what will be planted in
the field because seed availability will increasingly shift to crops with a single dominant trait.
Women are likely to have fewer options and less flexibility to use bioresources for multiple uses.
Since participation in the cash economy to make up the loss in these sectors will either not be
possible for women or place additional burdens on them, it is more likely that the ensuing
deprivations will become permanent.

3.4 RESPONSE OF THE SOUTH
India, Brazil, China, Cuba, Dominican Republic, Ecuador, Pakistan, Thailand, Venezuela,
Zambia, and Zimbabwe have urged the TRIPS Council to include additional clauses in the
TRIPS Agreement. These are to ensure that an applicant for a patent relating to biological
materials or indigenous knowledge shall provide disclosure of the source and country of origin of
the biological resources and of the indigenous knowledge used in the invention. The applicant
would also have to provide evidence of prior informed consent and of fair and equitable benefit
sharing under the relevant national regimes, These countries are also pushing for an international
regime that grants protection to indigenous knowledge. Due to opposition from developed
countries, particularly the US, no action has been taken on these proposals. On the contrary,
developed countries are advocating a TRIPS-plus approach. The EU and the US have been
pressurising countries through bilateral negotiations, to accept IPR regimes in excess of what the
WTO demands. There are a number of bilateral or regional treaties between developed and
developing countries that have more stringent rules than that provided under TRIPS.


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3.5 THE WAY AHEAD
The only way to fully ensure a fair deal for communities in developing countries is to remove
biodiversity from TRIPS altogether. Since achieving this ambitious goal may take more time
than the mandated review period allows, one way might be to secure a five-year suspension of
the implementation of Article 27.3(b) so that developing countries may sort out their strategies.
In any case, developing countries must at least ensure that there is no strengthening of the TRIPS
Agreement, as some developed countries are trying to do through bilateral treaties. The other
approach could be to negotiate at the international level for establishing the primacy of CBD
over TRIPS. Article 22 of the CBD says:
The provisions of this Convention shall not affect the rights and obligations of any Contracting
Party deriving from any existing international agreement, except where the exercise of those
rights and obligations would cause a serious damage or threat to biological diversity.
It is clear that the implementation of TRIPs is detrimental to the health of biological diversity
and therefore its implementation must be made subservient to the conditions of the CBD.
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4. CONFLICTING AGREEMENTS UNDERMINING
BIODIVERSITY AND BIOSAFETY
THE international Convention on Biological Diversity (CBD) and its Biosafety Protocol (BP)
were achieved through hard bargaining on principles and national interests. Are these now being
undermined by the World Trade Organisation (WTO) while pushing its objectives of providing a
regulatory and institutional framework for the world trading system and of bringing national
policies in line with international trade?
The power invested under TRIPS in the `Dispute Settlement Body' and the `TRIPS Council'
over-ride the jurisdiction and mandates of CBD and BP, as also the Convention on International
Trade in Endangered Species (CITES), ILO Conventions (1957/107; 1989/169) dealing with the
protection of the rights of indigenous people and local communities, the Declaration of the UN's
Economic and Social Council (ECOSOC) on the rights of indigenous peoples (especially
resolutions 1990/27 and 1991/31) and FAO's international undertaking on plant genetic
resources.
This power can nullify concepts and principles which are essential for sustainable development
and environmental quality, and which were achieved after several rounds of international
deliberations: The concept of sovereignty, the `precautionary', `internalising' and `polluter-pays'
principles, and equitable benefit-sharing of genetic resources. Several agreements within WTO,
particularly TRIPS (Article 27(3)b), directly or indirectly, affect biodiversity conservation.
With respect to intellectual property, TRIPs (Articles 3 and 4) requires member-states to observe
the principles of `national treatment' and `most-favoured nation'. Of seven forms of intellectual
property protection (copyright, patenting, plant variety protection, industrial design, geographical
indications, lay-out design of integrated circuits, and trade secrets) the three most important for
biodiversity and biosafety are patents, Plant Variety Protection (PVP) and geographical
indications. Article 27 of TRIPs sets the framework of the patent regime while Article 31
provides for compulsory licensing.
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India has already notified the Protection of Plant Varieties and Farmers' Rights Act 2001,
following the provisions of UPOV, but the Geographic Indications Bill (2000) is still pending.
Since the emergence of the WTO regime, three Articles of CBD have assumed greater relevance:
Article 8(J) which relates to the preservation and maintenance of traditional knowledge systems
of local communities, through equitable sharing of benefits; Article 16 covering the whole issue
of access to and transfer of technology including biotechnology; and Article15.1 pertaining to the
rights over genetic resources.
4.1 INDIGENOUS AND LOCAL COMMUNITY RIGHTS
Article 8 (J) imposes a major responsibility on nations to establish a critical balance between
biodiversity conservation and the protection of the rights of the indigenous and local
communities. The debate on Intellectual Property Rights (IPRs) and on Article 8(J) took an
interesting turn at the fifth meeting of the Conference of Parties (nations), at Nairobi in May
2000, with the Working Group II recommending the continuous involvement of indigenous
people while the intellectual regime was being implemented. It also called for, inter alia, the full
and direct participation of indigenous and local communities including women; recognition of
the collective dimension of indigenous knowledge and the issues related to Mutually Agreed
Terms (MAT)/Prior Informed Consent (PIC); and direct involvement of indigenous technical
experts.
The report recommended that parties support the development of traditional knowledge registers,
recognised that the maintenance of such knowledge requires maintenance of cultural identities
and the material base, and emphasised the need for indigenous and local communities to control
and determine MAT/PIC arrangements so as to make informed decisions. The Working Group
set out a two-phase approach for implementation.
The first phase includes tasks that address participatory mechanisms, strategies and trends,
benefit-sharing, exchange and dissemination of information, and other legal elements. The
second phase would include participatory processes for conservation and systematic use, and
other monitoring elements.
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4.2 ACCESS TO AND TRANSFER OF BIOTECHNOLOGY
Article 16 covering "Access to and transfer of technology" particularly emphasises that transfer
of technology should be provided and/or facilitated under fair and most favourable terms. In the
case of patents and other property rights, such access and transfer are to be provided only after
honouring IPRs. It further stipulates that measures be taken at the policy level to ensure that the
private sector facilitates access to joint development and transfer of technology, subject to
national and international laws.
4.3 ACCESS TO GENETIC RESOURCES
Article 15 on access to genetic resources provides a framework for establishing that States have
sovereign right over their natural resources. It says that access to genetic resources shall be
subject to the PIC of the Contracting Parties providing such resources. PIC is an important
mechanism as it ensures community participation in decision-making. The royalty-sharing
experiment between the Kani tribe and the Tropical Botanical Garden, Kerala, is an example of
this.
4.4 POINTS OF CONFLICT
The points of conflict are: a) Recognition of national sovereignty under the CBD implies that
countries have the right to prohibit IPRs on life forms (biological resources). TRIPS overlooks
this right by requiring the provision of IPRs on micro-organisms, non-biological and
microbiological process, as well patents and/or sui generis protection on plant varieties. b) The
CBD gives nations a legal basis to demand equitable benefit sharing arising from the use of
biological resources and associated traditional knowledge, practices and innovations. TRIPS
negates the broad historical contributions made by the communities in the IPRs regime and
establishes the monopolistic control of the patent holder. Thus, there will be no legal synergies
between these two sets of rights.
c) The CBD gives Parties legal authority to provide access based on PIC and MAT to biological
resources. TRIPS ignores this authority. d) The CBD places public interest and common good
over private property and vested interest. TRIPS does the oppsosite. To deal with this conflicting
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situation, CBD must be fully developed as an effective international instrument if it is to promote
the sustainable use and conservation of biodiversity, based on community control of resources.
For example, since the WTO has an effective dispute redressal system, there is an urgent need
for the establishment of a similar system under the CBD in the light of Article 22 (1) that states
that the provisions of CBD "shall not affect the rights and obligations of any party deriving from
any existing international agreement except where the exercise of those rights and obligations
would cause a serious damage or threat to biological diversity." This would bring the CBD on a
par with the WTO Agreements vis--vis biodiversity conservation and the sustainable use of
biological resources.
Taking into account the precautionary approach, the objective of the Biosafety Protocol, under
the CBD, is "to contribute to ensuring an adequate level of protection in the field of the safe
transfer, handling and use of Living Modified Organisms (LMOs) resulting from modern
biotechnology that may have adverse effects on the conservation and sustainable use of
biological diversity, taking also into account risks to human health, and specifically focusing on
transboundary movements" (Article 1).
Surprisingly, the definition of LMO (Article 3) does not include `product thereof' and as such
these would be internationally unregulated. However, "the protocol shall apply to the
transboundary movement, transit, handling and use of all LMOs that may have adverse effects...
" in accordance with its objectives (Article 4), and exclude LMOs which are pharmaceuticals
(LMO-P) for human uses and are covered by other international agreements or organisations
(Article 5).
LMOs intended for direct use as food, feed or for processing have also been excluded from the
regular Advanced Informed Agreement and risk assessment (Article 7.2), but alternative
procedures have been set.
4.5 GATT
Three major provisions of the WTO, if narrowly interpreted, may have serious implications for
the implementation of BP.
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GATT provides justification for trade barriers that are necessary to protect animal and plant life
and health, and relate to the conservation of exhaustible natural resources" (Article XX ). Using
these provisions, Trade Related Environmental Measures (under GATT) may be invoked as per
the requirement of BP. However, the existing GATT panel has not taken measures comparable
with the biosafety measures involving questions of scientific uncertainty, ethical and socio-
economic considerations, and the diverse levels of risk-awareness in different WTO Parties.
4.6 SANITARY AND PHYTOSANITARY MEASURES
The Agreement on Sanitary and Phytosanitary Measures (SPS) under WTO has refined the rights
and obligations of the Parties while adopting measures to protect human, animal and plant life,
and health risks arising from the introduction of food, disease-carrying or disease-causing
organisms, including the entry and establishment of pests. It is to be noted that Article 2 (2) of
the SPS requires parties to base their SPS measures on scientific principles and not to maintain
these without sufficient scientific evidence. This means that the importing countries might not
accept the safety measures which are adopted by exporting countries in the absence of scientific
certainty.
Besides, the LMO labelling scheme could still be defended by the importing countries as it
would not create `arbitrary or unjustifiable discrimination', or represent a `misguided restriction'
on international trade.
4.7 TECHNICAL BARRIERS TO TRADE
The Agreement on Technical Barriers to Trade (TBT) aims to ensure that parties do not use
domestic regulations, standards, testing and certification procedures to create unnecessary
obstacles to trade.
It has been designed to prevent arbitrary standards from being used to protect industries from
foreign competitors. It encourages international standards that producers must comply with to
gain access to different markets.
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The TBT agreement includes obligations relating to the preparation, adoption and application of
technical regulations and standards, and the procedures for assessing whether the products
conform to these regulations and standards. The agreement also imposes requirements for
labelling of products.
It is to be seen how countries not party to the CBD and the BP use these WTO agreements from
the perspective of biosafety concerns. The preamble of the Biosafety Protocol reflects the
compromise reached at Cartegana in May 2000.
As the preamble is weaker than the text agreed upon earlier in Miami, the substantive articles are
also rendered vulnerable to misuse due to the specific provisions in the protocol that refer to
other international obligations
Apart from the specific points of conflict between the CBD and the WTO, there are broader
issues of lack of compatibility between the various WTO agreements and the CBD, including the
Biosafety Protocol. These include:
a) The enhancement of global trade through implementing the WTO Agreements may aggravate
the unsustainable use of biodiversity, which is contrary to the objectives of CBD.
b) The increased transportation activity and infrastructure development to promote global trade
may have an adverse impact on the functioning of ecosystems, which could result in biodiversity
losses.
c) The trans-boundary movement of biological products, including LMOs in trade may result in
the accidental introduction of alien species which may lead to destabilization of native species.
d) The liberalisation of trade and investment may intensify the direct and indirect adverse
impacts on biodiversity and the supporting habitats.
e) The WTO agreements may interfere with the international/ national subsidies as incentives to
the industry, or with conservation laws and policies which seek control of traded goods. (For
instance, GATT conflicts with the CITES provisions on Tuna-Dolphin harvesting from the Sea).
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f) Moreover, built into the WTO agreements are various policy interventions for trade
enhancement which may completely ignore the cost required for maintaining the environmental
functions of the major habitats, thus, resulting in unsustainable production or trade in certain
sectors.
4.8 RESOLVING THE CONFLICTS
If the WTO Agreements and the CBD (inclusive of the Biosafety Protocol) are to be
implemented in the interest of human survival and well-being, urgent measures are required to be
taken to ensure that the objectives of CBD are not undermined by the narrow agenda of WTO
Agreements, particularly of TRIPS.
These measures would include: First, that nations recognise and affirm in law the primacy of the
CBD over the TRIPs in the areas of biological resources and traditional knowledge systems.
Second, the collective rights of indigenous and local communities to freely use, exchange and
develop biodiversity should be recognized as a priori rights and be placed over and above private
intellectual property rights. This has to be reflected in legislation and public policy at the national
level.
Third, the implementation of TRIPs in developing countries should be challenged so as to make
these compatible with the provisions of the CBD. Fourthly, during the review of TRIPs, it should
be ensured that there is an option to exclude all life forms and related knowledge from the IPR
system.
If such measures are taken by the parties concerned, the Convention on Biological Diversity and
the Biosafety Protocol could provide an innovative approach to the interface of trade and
environmental concerns, and set a precedent for `sustainable trade agreements' so that the
potential value of biological resources can be optimised on a equitable basis for the welfare of
human beings.

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5. CASE STUDY
CASE I KARNATAKA HIGH COURT ISSUES NOTICE IN PIL HIGHLIGHTING
EGREGIOUS BIOPIRACY AND GOVERNMENTAL APATHY
Meanwhile, Karnataka scandalously transfers prosecuting officers in biopiracy case
The Principal Bench of the High Court of Karnataka (comprising Chief Justice Mr. Vikramjit
Sen and Justice Mrs. B. V. Nagarathna) ordered issue of notice on 21 Nov 2012 in the Public
Interest Litigation (Writ Petition No. 41532/2012) filed by Environment Support Group,
Bangalore (ESG) and listed the matter for further consideration for the fourth week of January
2013.
ESGs petition highlights the shocking state of biodiversity conservation in India, and urges
the Court to direct attention to the widespread practice of biopiracy by national and
international corporate bodies. Further, the petition highlights a number of specific defects,
lacunae and failures in the current legal and institutional regimes that are directly resulting in
the rampant irreversible loss of India's biological diversity and associated traditional
knowledge, and are thereby threatening not only sovereign control over biological resources
but also the livelihoods of indigenous and natural resources dependent peoples.
Specifically, the Petitioners have drawn the attention of the Court to the continuing failure on
the part of regulatory authorities to initiate action against M/s Mahyco, M/s Monsanto, and
various public agricultural universities involved in promoting B.t. Brinjal despite categorical
evidence indicating that egregious criminal biopiracy of local varieties of brinjal (egg plant)
was involved. This failure of the regulatory authorities has also been strongly criticised by the
Parliamentary Committee on Agriculture in its August 2012 report on Cultivation of
Genetically Modified Food Crops Prospects and Effects which has called for ....a thorough
inquiry in the matter of continued paralysis in decision making on a case of this dimension.
The Petitioners have also highlighted that the Ministry of Environment and Forest's 26
October 2009 Notification listing 190 plants as Normally Traded Commodities (NTC)
includes, shockingly, at least 18 critically endangered plants. The Petition contends that while
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hundreds of community and regional initiatives are desperately trying to protect such
endangered plants, the Ministry's Notification callously promotes their unfettered international
trade thus driving them potentially into extinction. The Petition also argues that Section 40 of
the Biodiversity Act, 2002, which arbitrarily allows such unfettered trade in India's biological
wealth through an uncanalised power to label something as a Normally Traded Commodity,
paves the way for rampant biopiracy. The writ petition therefore urges that this section be
struck down as being ultra vires of the Biological Diversity Act, 2002 and the Constitution of
India.
Finally, the Petition draws the attention of the Court to the reports of the Comptroller and
Auditor General of India and the Indian Parliament's Committees on Agriculture and Public
Accounts, all of which have independently come to the conclusion that there has been colossal
failure on the part of the Ministry of Environment and Forests and the National Biodiversity
Authority in protecting the country's biodiversity.
On such and other grounds, the petition prays that environment, social and bio-diversity
impact assessments based on meaningful compliance with the Principle of Prior and Informed
Consent must be made mandatory for all decisions impacting biodiversity, associated
traditional knowledge and livelihoods. The prayer seeks the quashing of the Ministry's 26
October 2009 Notification on NTC and urges the Court to direct the Ministry and the National
Biodiversity Authority to institute appropriate structures, procedures and norms to protect
India's biodiversity in strict conformance with relevant constitutional norms, the Biological
Diversity Act, 2002, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006, Environment (Protection) Act, 1986, amongst others.
It may be recalled that the High Court had taken note of the PIL on 16 October 2012 when
Chief Justice Mr. Vikramjit Sen pointedly observed that dharnas must be organised against the
United States of America for its continued intransigence in complying with global biodiversity
norms, highlighting that such action might perhaps be necessary in tackling challenges to
global biodiversity conservation. This remark was made even as the 11th Conference of
Parties on the Convention on Biological Diversity was held at Hyderabad, a gala UN event
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that was colossal failure in safeguardig biodiversity and traditional knowledge and livelihoods
associated with it.
Karnataka transfers officials prosecuting Monsanto/Mahyco and others in biopiracy
case:
The extraordinary seriousness with which the Court had taken note of the Petition's concerns
should have propelled regulatory agencies in initiating prosecution of those guilty of
biopiracy. Quite in contrast, when Petition is under the active consideration of the Court, it is
reported that the Karnataka Government has scandalously transferred the two key officers who
were empowered by the Karnataka Biodiversity Board to file criminal complaints against
Monsanto/Mahyco and others involved in biopiracy while advancing B.t. Brinjal . This is
clearly demonstrative of the high levels of collusion that exists within the Government to
scuttle the possibility of prosecution in India's first biopiracy case proceeding per law. ESG
holds that this is clearly to benefit powerful agri-business corporations such as
Monsanto, and will take up this matter at the very highest level to have the officers
restored to their current positions forthwith.
CASE II SAVING WILD TIGERS: A CASE STUDY IN BIODIVERSITY LOSS AND
CHALLENGES TO BE MET FOR RECOVERY
Wild tigers are being annihilated. Tiger range countries and their partners met at the 1st Asian
Ministerial Conference on Tiger Conservation in January 2010 to mandate the creation of the
Global Tiger Recovery Program to double the number of tigers by 2022. Only 32003600 wild
adult tigers remain, approximately half of the population estimated a decade ago. Tigers now live
in only 13 countries, all of which are experiencing severe environmental challenges and
degradation from the effects of human population growth, brisk economic expansion, rapid
urbanization, massive infrastructure development and climate change. The overarching challenge
of tiger conservation, and the conservation of biodiversity generally, is that there is insufficient
demand for the survival of wild tigers living in natural landscapes. This allows the criminal
activities of poaching wild tigers and their prey and trafficking in tiger derivatives to flourish and
tiger landscapes to be diminished. The Global Tiger Recovery Program will support scaling up
of practices already proven effective in one or more tiger range countries that need wider policy
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support, usually resources, and new transnational actions that enhance the effectiveness of
individual country actions.
The program is built on robust National Tiger Recovery Priorities that are grouped into themes:
(i) strengthening policies that protect tigers;
(ii) protecting tiger conservation landscapes;
(iii) scientific management and monitoring;
(iv) engaging communities;
(v) cooperative management of international tiger landscapes;
(vi) eliminating transnational illegal wildlife trade;
(vii) persuading people to stop consuming tiger;
(viii) enhancing professional capacity of policy-makers and practitioners; and
(ix) developing sustainable, long-term financing mechanisms for tiger and biodiversity
conservation.

RECOVERING TIGER POPULATIONS
To address the looming biodiversity crisis and to make tigers the face of biodiversity, the World
Bank, the Global Environmental Facility, the Smithsonian Institution and other partners launched
the Global Tiger Initiative (GTI 2009) in June 2008. Since then, the GTI has become an alliance
of governments, including all 13 TRCs, international organizations and civil society, coordinated
by a small GTI Secretariat hosted by the World Bank. The alliance was deepened at a global
workshop in Nepal in October 2009, at which the partners shared best practices and developed
the Kathmandu Recommendations for scaling up those best practices to achieve real
conservation progress on the ground (GTI 2009). This led to the AMCTC in Thailand in January
2010, where the Hua Hin Declaration committed TRCs to accelerating priority national actions
and charged the international community with undertaking efforts to support the TRCs where
issues transcend national boundaries, with an emphasis on stopping the illegal wildlife trade
(AMCTC 2010). The Hua Hin Declaration required commitments to: (i) policy changes and
other activities to make critical habitats and core areas that support tiger source populations
inviolate with no economic development permitted; (ii) identify buffer zones and corridors for
tiger conservation and ensure their integrity through assessment of proposed infrastructure and
other land-altering economic development and appropriate mitigations (such as Smart Green
35

Infrastructure, Quintero et al. 2009); (iii) mainstream tiger concerns through sectoral integration;
and (iv) foster trans-boundary TCL management to benefit tigers. The Hua Hin Declaration also
set the global goal of doubling the number of wild tigers by 2022, and endorsed the plan
for a Tiger Summit to be held in Russia. J. Seidensticker After a series of National Consultations
during which TRCs developed their National Tiger Recovery Priorities, the partners met in Bali
in July 2010 to endorse the concept of the GTRP, which is built on the National Tiger Recovery
Priorities and associated Global Support Programs. The GTRP will be launched at an
unprecedented Heads of Governments Tiger Summit in November 2010, hosted by Russian
Prime Minister Putin in Saint Petersburg with the strong support of World Bank President
Robert Zoellick.
These milestones, and the GTRP (2010), are a result of all 13 TRCs and the international
community working together for the first time on a cooperative platform, sharing knowledge and
experience and developing a collaborative program to achieve a global goal. There has never
been a comparable comprehensive, costed-out, rangecountry- driven effort to save a species and
the valuable ecosystems in which it lives for the benefit of current and future generations of
people. The GTRP will support scaling up practices already proven effective in one or more TRC
that need wider policy support, usually resources, and new transnational actions that enhance the
effectiveness of individual TRC actions. The GTRP is built on the foundation of robust National
Tiger Recovery Priorities developed by each TRC that are grouped into 10 themes: strengthen
policies that protect tigers, landscape protection, scientific management and monitoring,
community engagement, cooperative management of international tiger landscapes, help TRCs
eliminate the huge transnational illegal wildlife trade, persuade people to stop consuming tigers,
enhance professional capacity of policy-makers and practitioners, and develop sustainable long-
term financing mechanisms for conservation.
The broad outline of the GTRP (2010) is as follows:
1. The unrelenting poaching pressure to supply the increasing demand for tiger parts and
products, driven by increased wealth in the global tiger-consuming sector (Gratwicke et al. 2008;
TRAFFIC 2008), requires full attention by all TRCs and globally to enforce existing laws and to
create effective demand-reduction mechanisms. Attempts at demand reduction have only been
partially effective to date. This goes concurrently with providing effective protection to tigers by
increasing management effectiveness in protected core areas, increasing the extent of protected
36

core tiger habitats, such as has recently been done for the Hukaung Valley Tiger Sanctuary in
Myanmar (Wildlife Conservation Society 2010) and the Banke National Park in Nepal (DNPWC
2010), and linking protected core tiger habitats with corridors that enable tigers to move
between the core habitats.
2. Pockets of poverty surround and are embedded in TCLs. Programs are required to address the
economic needs of communities living around wild tiger populations and to gain local support
for conservation through participatory engagement in sustaining natural resources as well as
development of sustainable alternative livelihoods.
3. Tiger range countries own economic development goals, which might entail achieving 10%
per annum, are driving landscape transformations, and are overwhelming the institutional
architecture (protected area systems, governance and resourcing) established in the 1970s to
protect tigers. The old conservation architecture requires remodeling, and the old strategies need
a paradigm shift to meet the current and emerging challenges. This necessitates capacity
building, new knowledge-sharing platforms and improved governance.
4. The challenge of managing core protected areas is in restricting uses inside the areas and
stabilizing threats outside the areas that spill in. However, even within protected areas, conflict
with humans is a significant cause of tiger and human mortality (Gurung et al. 2008). Significant
mortality occurs when tigers range beyond the borders of core protected areas, and this
requires mitigating carnivore persecution on the edges of protected core areas and in buffer zones
(Woodroffe & Ginsberg 1998; Miquelle et al. 2010b).
5. Although the goal in tiger conservation is to create core protected areas that are buffered and
linked to other core protected areas, in fact, many people live within their borders and these
people rely on resources from these areas for their livelihood. Most Indian tiger reserves and
protected area systems in Bhutan, Indonesia and Malaysia are examples. The conservation
challenge is to reduce the human footprint in the protected core breeding areas. This is fully
recognized by the TRC in the GTRP (2010). Some countries have proposed a process of
voluntary resettlement where the social context will allow it to occur or, alternatively, more
refined zoning to shield breeding female tigers from human intrusions.
6. The landscape conservation strategy allows tigers to exist as a collection of ecologically and
genetically linked sub-populations or a metapopulation that confers more robustness and
resilience to withstand threats and stressors generated by people. However, many tiger core
37

breeding populations are for the most part no Saving wild tigers longer embedded in a larger
landscape of tiger-friendly habitat. Instead, they are usually isolated or tenuously connected to
other habitat. Therefore, the new GTRP strategy emphasizes securing, and restoring where
necessary, the habitat corridors that help to connect the core breeding populations. The basic
premise of landscape conservation and metapopulation management is to increase the
ecologically and genetically functional size of tiger populations. It is recognized that failure to do
so now will result in further isolation of the core breeding populations contained within and
between TCLs because of the rapid rate at which habitat is being converted, degraded and
fragmented in fastdeveloping Asia. Deferring action for another decade, or even 5 years, is not
an option anymore.
The AMCTC recognized that all of the above requires sustainable financing beyond existing
country and international investments, without which wild tigers will not be saved (GTRP 2010).
Conservation of endangered species vulnerable to poaching is an especially costly exercise
(Damania et al. 2008). The funds needed above what the TRCs are already expending total
approximately $50 million per year over for the next 5 years. The incremental funds needed for
tiger recovery vary between 40 and 60%, with the exception that India has determined it does
not require additional financing beyond what is now being allocated (GTRP 2010).
To overcome this resource deficit, the battle to save tigers requires forming new alliances.
Although funds to specifically manage and conserve tiger landscapes are few, many donors
invest large sums in improving the livelihoods of local community through sustainable
management of forests and natural resources. The foundation of sustainability of natural
resources and forests is healthy ecosystems. Tigers are a barometer of ecosystem health.
Tigers are the face of biodiversity conservation in general. TRCs, conservation organizations and
global partners can form alliances and partnerships to leverage and strategically channel funds
invested by these donors for better landscape management that benefits people and tigers.

CLOSING COMMENTS
All of the best efforts of the past are not working to save tigers. At best, they have only slowed
the rate of their decline. The GTRP (2010) recognized that recovering wild tigers requires a
multifaceted approach that includes: (i) changing the conversation about tiger conservation, and
38

bring many more voices into the discussion on saving wild tigers; (ii) confronting and
overcoming the enormous asymmetry between the resources fueling economic and infrastructure
development and poaching, on the one hand, and the limited resources that conservationists can
muster on the other; (iii) boosting our human capacity to address the host of problems that must
be solved to save wild tigers; (iv) creating the political influence and social clout to effect
changes in perceptions and policies to make live wild tigers living in the wild worth more than
dead tigers; and (v) generating sustained financing to support biodiversity conservation.
Achieving the vision to double tiger numbers in the next 12 years requires concomitant
management interventions at the source sites and in the surrounding landscapes. The battle to
save tigers is at a stage where it has to be fought at multiple fronts. For tigers to survive in the
long term, tigers and their prey must be protected and managed at a landscape scale that includes
protection of source sites, buffer zones, dispersal corridors and the restoration of degraded lands,
coupled with initiatives through which the conservation of tigers directly and indirectly meets
the needs of local people. Concurrently, this strategy requires the suppression of the demand that
drives tiger poaching. In addition, it requires a sustained political will to support these
conservation efforts. As we lose tigers from ecosystems, it means the conditions in those
ecosystems are eroding. The ecosystems themselves lose their resilience to natural and human
caused change. The ecosystem services that tiger forests provide to people are compromised.
Lacking the tigers umbrella, other biodiversity will be at great risk and erode too. We will have
failed to leave the legacy of magnificent wild tigers to our children.

39

CONCLUSION
Trade is a critically important issue for all of us. We are utterly dependent for our very survival,
or at least welfare, on harvested natural resources from some of the most volatile parts of the
world, causing our governments to make substantial military expenditures to keep the whole
system functioning. Some people may have their doubts, but the consensus in most parts of the
world is that global trade is, on balance, a good thing and a key component of sustainable
development, even if it often seems that the benefits flow disproportionately in favour of those
who are already well off. But what are the impacts of trade on biodiversity?

First, the institutional context of the resource management regime is essential. All depends on
whether the harvested resource is being managed with a view toward optimal use, or whether it
is simply open access to earn quick income. Renewable natural resources - forests, fisheries,
crops- are inherently dynamic, often affected by unpredictable variables such as climate or rates
of replenishment; and complex environmental issues surround resource extraction, including
non-use values, ecosystem services, invasion of non-native species, and conversion of productive
habitats to less productive alternative uses. Further, many of these resource systems have people
who may have been living within them for several generations or more, but are not always fully
involved in the decisions about how these resources are to be exploited today. Because the
impacts of resource extraction on biodiversity are felt locally, those involved in global trade
disclaim any responsibility for the mode of production or transport. They simply accept as a
matter of faith that the responsible governments will ensure that any environmental costs are
incorporated into the prices that are charged for the commodities traded. Small wonder that the
international community is willing to leave such issues up to the national governments.

Instead of a general policy solution, each specific management problem affecting biodiversity
will need to be analysed case by case in order to determine the linkages between the key
economic, ecological, and institutional factors that are driving the problem. By identifying the
impacts of trade on resource management, biodiversity and economic welfare, the possible
policy remedies can be recommended to governments and possibly to the WTO, CBD, and
CITES as well.

40

Whether trade is good or bad for biodiversity and welfare depends on the interplay of complex
economic, ecological, and institutional factors. Policy options and recommendations can also be
expected to reflect the complexity of the issues involved, arguing against any simple answer
supporting or opposing free trade. Instead, full consideration needs to be given to the wider
ecological and economic links that provide the foundation for trade, natural resource
management, and assessing the impacts of these on biodiversity. Another externality of trade
is the impact on biodiversity of non-native species transported by trade. If these are beneficial, or
at least harmless, no problem arises. But if they proliferate in their new home and spread in ways
that are contrary to human health, economics or the environment, then a serious problem arises.
If the species is being introduced intentionally, then existing mechanisms such as environmental
impact assessment can readily be used. But far more insidious are the thousands of species that
are unknowingly in motion at any one time, in the ballast water of freighters or navy vessels, as
egg masses of insects in log shipments, in the form of mosquito larvae trapped in shipments of
used tires, or even viruses carried by unsuspecting travellers. Invasive species cost countries
around the world several hundred billion dollars per year biodiversity-related damages, calling
for a far more effective policy response.

One final impact of trade on biodiversity that passes generally unnoticed is that it promotes
specialisation in production, leading in turn to specialisation in ecosystems and their associated
biodiversity. The conversion of large areas of highly diverse tropical rain forest into mono-
specific stands of oil palm, rubber, or coffee, makes the point dramatically in various parts of the
tropics. Biodiversity certainly suffers in such a case, and when the systems being simplified are
ones that are of recognised global importance because so many of their species are found
nowhere else, then a vigorous public policy response is appropriate. This is again an example of
a hidden externality; a tony Parisian sipping her demi-tasse of espresso is hardly aware that a
unique patch of rainforest in Madagascar, containing species that are found nowhere else in the
world, has been destroyed so that she can have her caffeine jump-starter each morning.
Ultimately, it is all a question of feedback: how can markets better internalise the costs of
biodiversity impacts of trade. This issue is of great, and growing, importance as biodiversity
continues to be lost at an alarming rate, driven in part by growing resource consumption driven
by trade.
41

BIBLIOGRAPHY
BOOKS
Global Biodiversity : Conservation, Indigenous Rights and Biopiracy/K.C. Agrawal.
Bikaner, Nidhi Pub., 2002, vi, 686 p., tables, figs., $53. ISBN 81-901181-6-1.
Khare, A., Madhu Sarin, N.C. Saxena, Subhabrata Pali, Seema Bathla, Farhad Vania and M.
Satyanarayana. 2000. Joint Forest Management: policy practice and prospects. Policy That
Works for Forests and People series No.3. International Institute for Environment and
Development. London. And WWF- India, Delhi.
Kothari, A. 2000(a). Review of National Forestry Action Plan. Unpublished document
Kothari, A. 2000(b). Will 32 Billion Dollars Save India's Forests? Hindu Survey of the
Environment.
Kothari, A., N. Pathak, and F. Vania. 2000. Where Communities Care: Community Bases
Wildlife and Ecosystem Management in South Asia. Evaluatin Eden Series No.3 IIED
London and Kalpavriksh.

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