For safe custody

Besides its other decisions, the third Conference of Parties also resolved to empower native peoples to use and conserve biological resources in their lands

Last Updated: Sunday 07 June 2015

For safe custody

-- (Credit: Vishwajyoti)indigenous communities across the world must be given exclusive rights over the land they inhabit if they are expected to protect the genetic resources therein and use them sustainably. And governments have to frame laws and policies which ensure that they are not deprived of this right. This was the resolution adopted by the third Conference of Parties (cop) to the Convention on Biological Diversity (cbd) at Buenos Aires, Argentina, from November 4-15, 1996.

The mood at the third cop was overwhelmingly pro-people. The tone was set by a detailed note prepared by the cbd secretariat on Article 8 (j) of the convention. The note clearly stated that "if the countries truly wished to 'fulfil' the basic objectives of the convention, they must first focus their attention on the provisions laid out in Article 8 (j)." This Article stipulates that the parties (160 nations which are signatories to the cbd) must frame national laws which protect and preserve traditional "knowledge, innovations and practices" (of local communities) that are relevant for conservation of the world's biological resources. These laws should also ensure that the people are given a slice of profits that come out of the commercialisation of these resources and knowledge systems.
National responsibilities There were two ideas that emerged very clearly out of the deliberations. One was the need to evolve national legislation to implement Article 8(j) immediately. The cop ruled that it was time for every member nation to evolve a legal framework and take necessary administrative measures to ensure that the rights of communities are safeguarded.

The second was to launch a major information hunting campaign to help the countries identify issues required to frame national laws. It was decided that the countries should examine various options - mechanisms, constitutional provisions, laws and administrative arrangements - that already exist within their national boundaries or outside. Also, they should share information with each other frequently and widely.

Addressing the ministerial segment of the cop, Carlos Menem, the Argentinian President, declared, "Respect for traditional communities has been deferred for too long within the cbd." This view was reiterated by, among others, the Indian minister of state for environment and forests, Jai Narain Prasad Nishad, who emphasised the need to create "systems and mechanisms... to protect rights of and provide rewards for traditional knowledge systems."

In its final decision on Article 8 (j), the cop requested the cbd secretariat to act as a kind of information storehouse which would be stocked up regularly by the member nations. "The cbd secretariat must prepare a background documentation containing the following: linkage of Article 8 (j) and such issues as technology transfer, access, ownership of genetic resources, ipr and a survey of activities undertaken by relevant organisations and their possible contributions to Article 8 (j)," said the cop.
IPR realities The issue of intellectual property rights (ipr) and its impact on the cbd too dominated most of the sessions. The members agreed that there were inherent conflicts between ipr systems and knowledge systems that are "collective and intergenerational" (carried down through several generations). India, backed by Brazil, Tanzania and Malaysia suggested that the present patent regime should be modified to accommodate the cbd.

The European Union (eu) felt that before any definite action is taken, the cop should scrutinise the 'well-functioning' ipr systems that are in operation in different parts of the world. Colombia called for a suspension of access to genetic resources till there is a guarantee of protection of rights of the communities. Some non-governmental organisations (ngos) pressed for an "immediate moratorium on bioprospecting (any screening of plant varieties for research purposes)."

At the end of the hotly-debated dialogue on ipr, the parties were requested to submit case studies on the impact of iprs on biodiversity. The cop statement said, "These case studies could consider existing ipr systems in achieving cbd objectives, including technology transfer and benefit sharing with indigenous and local communities." The cop urged its members to "consider the development of ipr, such as sui generis systems (which take care of specific concerns of a country) or alternative forms of protection."

National rights
The other segment of the cbd which featured prominently at the Buenos Aires meet was Article 15. This Article asserts the sovereign rights of nation states over their genetic resources. It says that if an external party - it may be a research institute or a multinational company - wishes to access these resources it must take prior consent of the "country of origin". Besides, this transaction must take place on "mutually agreed terms".

It was felt that member countries need to enact national legislations to establish control over access to genetic resources. Some countries - the Philippines, for instance - have already surged forth in evolving policies. In May 1995, the Philippines issued a presidential order to regulate bioprospecting. The order stipulates that prior consent of both the government and indigenous cultural communities has to be sought if an external party desires to use its resources. It also has provisions for the establishment of a "competent national authority" to deal with these matters.

Another significant development in this direction was the Andean Pact. Introduced as the "common system on access to genetic resources," this has been jointly developed by Bolivia, Colombia, Ecuador, Peru and Venezuela. Some of its primary objectives are creating conditions for fair and equitable sharing of the benefits accruing from such access and strengthening the negotiating capacity of member nations. Each member country must now enact its own secondary legislation in order to meet the obligations of this pact. The Ecuadorian Congress has already passed the legislation, while the other members are hard on the job.

Diverse concerns
Funding, as usual, was the bone of contention at cop. Developing countries were of the view that industrialised nations should make firmer commitments to provide financial aid for conservation of genetic resources worldwide. China, backed by other developing nations, complained that the rich nations were being extremely tight-fisted about generating "new and additional funds", even when Article 20 of the cbd commits them to it. On the contrary, they were actually trying to recycle the available development aid into other environmental projects. The representatives of the industrialised world, of course, vehemently denied such charges. "The documents suggesting additional financial resources provided by the developing nations give inaccurate data," counter-attacked the eu, Australia and the us. The issue of funding remained unresolved till the end.

The cop also recommended that the cbd secretariat should keep abreast of developments at the wto platform. The parties urged the secretariat to apply for an observer's post at the Committee on Trade and Environment - wto's primary forum for considering trade and environment issues.

Some of the developing country members of the cbd voiced their concerns about reports that the World Intellectual Property Organisation (wipo) may recommend international copyright protection for scientific databases in the coming year. They feel that this will give an upper hand to the technology-savvy industrialised nations who already possess highly-sophisticated, comprehensive databases on bioresources. The cop has, hence, called for an "open and transparent evaluation" of the implications of the copyright proposal.

These decisions indicate that the cbd is also being geared up as a forum to address issues which do not fall within its jurisdictions, but are seen to be relevant to the basic principles of the convention. With the weight of an internationally-ratified treaty behind it, the cbd may yet emerge as a significant influence on the activities of both the wto and the wipo.

These, indeed, are happy tidings for developing countries. However, member nations - especially those like India that possess a treasure-trove of resources and a rich and diverse traditional culture - have a lot of ground to cover before the fourth cop in Slovakia in May 1998. In India, these assets are not protected by any legal safeguards. The country is yet to come up with a plant varieties protection act, while the patent law is hamstrung in the Parliament. Is Paryavaran Bhawan listening?

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