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Vol. 5 No. 3 - July 1999

Biodiversity and the Emerging WTO Regimes

By: P. Pushpangadan

(This article is an extended abstract of the talk delivered under the auspices of ISEB on 7th April 1999.)

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 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).

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 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.

The author is Director of the National Botanical Research Institute, Lucknow and President of ISEB.

This article has been reproduced from the archives of EnviroNews - Newsletter of ISEB India.

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