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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. |
