How do you view the progress made in the implementation of the Convention on Biological Diversity (CBD) which was signed with much fanfare at Rio in 1992?
From the South and Southeast Asia point of view, the CBD has catalysed greater awareness, analysis and action on the three major goals of CBDconservation, sustainable use and equitable sharing of benefits. Progress is being made on the first two goals, but initiatives relating to equitable sharing of benefits, taking into account the gender dimensions of equity, have been inadequate both in this region as well as globally. The CBD provisions relating to access, benefit-sharing, prior informed consent (PIC) and protection of traditional knowledge systems and rights must be implemented without delay.
But why has this failed to take off till now?
Subsequent to the coming into force of the CBD, the WTA and its provisions for Trade Related Intellectual Property Rights (TRIPS) have also come into force. Under the WTA, "members shall provide for the protection of plant varieties either by patents or by an effective suigeneris system or by any combination thereof". With the strengthening and widening of TRIPS, instances of attempts in industrialised countries to patent material based on traditional knowledge and genetic strains derived from our region are growing. The Consultative Group on International Agricultural Research has now called for a moratorium on IPR claims on seeds held in trust in the gene banks. Various other material grown in countries of this region for centuries and whose medicinal and other properties have been known for ages, such as neem and turmeric, have been subjected to IPR claims in the recent years in the industrialised countries. In the case of basmati rice, it is a well-established geographical identity that it is grown in India and Pakistan. What is urgently needed is a new global trade and transactions order which can be termed TRIPS Plus, where plus refers to equity and ethics in IPR claims. One should remember that the same governments are members of both the WTO and CBD.
What prevents the governments from introducing the methods for equitable sharing of benefits?
First, there is no mechanism as of now to implement it. For instance, if some medicinal properties of a particular plant are to be patented, and if its properties were first identified by say a tribal group and that knowledge has been preserved for centuries, the issue becomes who should get the benefit: the entire tribe, or the state, or the country or the particular community within the tribe who had been protecting the particular species. But this practical difficulty should not mean governments keep the issue in abeyance forever. They have to make a beginning and if they find what they have evolved is inadequate, then they should develop on it. It is a fraud to use the complexity as an excuse for not taking initiatives. Traditional and formal knowledge systems represent a continuum and it will be unethical to recognise only the "tip of the iceberg" in the innovation chain. Synergy between traditional knowledge and modern science is often essential for imparting the dimensions of ecological and social sustainability to technology development and dissemination.
What type of legislations do you suggest to implement this?
This is the most tricky area. The experience gained from the Andean Pact Countriesparticularly Peruand Philippines reveal that access, PIC and benefit-sharing legislation should be simple and practical. It should not be overloaded with too many objectives but concentrate on fundamentals of equity and ethics in access to resources and knowledge and in sharing benefits. The legislation should be based on a sound understanding of the nature and extent of demand for genetic resources and should be linked to national needs. This is possible only by preparing the legislation through a wide stake-holder participation.
What are the key issues that should be addressed while drawing up the legislation?
The legislation should be based on an assessment of issues relating to benefit-sharing with reference to: a) who owns genetic resources; b) who is authorised to take decisions on PIC; c) who benefits and how and finally d) has specific attention been given to the role and contribution of women in the conservation and management of biodiversity? However, I am convinced that there should be an integrated package of legislative and non-legislative measures appropriate to the conditions of each country.
Do you really believe that developing nations can protect their genetic resources from the patent raj of developed nations?
Yes. Provided we are united. Look, G-7 is united on many issues. But G-15 and SAARC countries only talk and do nothing. ASEAN is the only better example from this part of the world. ASEAN and SAARC should take urgent steps to promote consultation and information exchange which can lead to reciprocity and concerted action in matters relating to access to genetic resources among countries both within and outside the region.
What are the steps taken by the industrialised nations to implement the benefit-sharing provisions?
As of now, none. We were demanding right from the beginning that industrialised countries should also enact legislation which supports the implementation of the PIC and benefit-sharing provisions of CBD. Unless both providers and users of biodiversity have mutually reinforcing legislation, action on CBD provisions will become one-sided. Industrialised countries should also implement the technology-sharing provisions of CBD and should help the providers of genetic resources in adding value to the primary material. As only value-addition will end the irony, where the con-servers live in poverty in contrast to the prosperity of those who utilise their knowledge and material.
The industrialised countries must take the lead in implementing the salient features of the international conventions and treaties. They cannot demand others to follow the letter and the spirit of the conventions when they do not have sufficient legal provisions to implement them. For instance, the US has signed the CBD but has not yet ratified it. In the case of Law of Seas, it has neither signed nor ratified it.
We have to move away from bio-piracy to bio-partnership and this can be achieved only by sustaining both the North-South dialogue as well as South-South partnership.