The Convention On Biological Diversity


02 Nov 2017

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Submitted To:

Asst. Prof. Amrendra Kumar Ajit

Submitted By:

Tulika Pandey (2009/B.B.A.LL.B/058)

Table of Contents


Earth is many million years old and the only planet with life that we know of. As Earth grew older, it changed and so did the life forms on it. What we have today with us is the result many million years of evolution and even though we are the most intelligent life form on this planet, we still have hardly been able to catalogue 30 percent of all the life forms. [1] We are losing thousands of varieties annually and we do not even know what they are and what their functions are.

Biodiversity that we have today needs to be preserved so we can understand how the ecosystem works and interacts but more so for being able to harness this pool of knowledge that we yet don’t know how to use. Biodiversity has provided many benefits. Some of these benefits come in the form of goods that can be directly valued because they provide something that can be extracted and sold. These goods include everything – from all the domesticated agricultural crops that form the basis of our food supply to medicines that protect and cure us – as well as the fibres that make the clothes that we wear.

Thus, biodiversity is widely valued as a food pantry, genetic storehouse for biotechnology and a place to retreat from hectic life. The conservation of biological diversity seeks to maintain the life support system provided by the nature in all its varieties, and the living resources essential for ecologically sustainable development.

Biodiversity also provides critical indirect benefits to humans that are difficult to quantify, because they could not be valued in terms of money. These benefits encompass ecosystem services, such as air and water purification, climate regulation and generation of moisture and oxygen. The world cannot afford to replace these services. Therefore, ecosystem should be protected.


Biodiversity is the sum total of living things, with their associated ecological processes, and specifically refers to the variability and variety within species as well as among the ecological processes that connect them. In simple words, biodiversity is the variety of life: the different plants, animals and micro organisms, their genes and the ecosystems of which they are a part. [2] The diversity in the living organisms presents on the earth, collectively in land, water and air is called biological diversity or biodiversity.

Biodiversity includes millions of races, local variants of species and subspecies, and ecological processes and cycles that link organisms into populations, communities, ecosystems and ultimately the entire biosphere Biodiversity is mainly recognized at three levels, namely, genetic, species and ecosystem. Genetic diversity refers to variation within individual species; species diversity pertains to the variety of species; and ecosystem diversity refers to diversity of ecosystems and habitats. [3] On the basis of the above classification, the global biodiversity has 1.75 million identified species. These species are distributed in different combinations in different ecosystems. Of these 1.75 million species, only 2.7 lakhs belong to plant kingdom. [4] Humans largely depend on less than 9000 plant species for food, clothing, shelter, medicines, forage and industry. Of these, about 900 species have been domesticated for agriculture and from with increasing industrialization of agriculture and human dependence on plant species, many plant varieties are decreasing at an alarming rate. [5] 

Conservation and sustainable use of biological resources based on local knowledge systems and practices is ingrained in Indian ethos and ways of life. As a result, India has a strong network of institutions mapping biodiversity and undertaking taxonomic studies. The distribution of plants is not uniform on the earth, 90% of the species are confined to 10% of land area around equator. [6] Moreover, and distribution of biodiversity within this narrow equatorial region is also not uniform. Some countries located within this region have abundance of biodiversity while others have only moderate or little biodiversity. Regions which are very rich in biodiversity are called mega-bio diverse countries. There are 17 such mega-bio diverse countries around the equatorial region and India is one among them. [7] 

Due to the growing demand for the bio-products in the recent decades, commercialization of the traditional knowledge associated with the bio resources has been on pace all over the world. [8] This has adversely affected the livelihoods of TK holding societies and also caused serious threat to the biodiversity. Hence, a need for the protection of TK and bio resources has been raised and has become topic of international debate. [9] 

Biodiversity performs two most important functions. Firstly, it regulates and maintains the stability of climate, water regime, soil fertility, and quality of air and overall health of the life support systems on earth. Secondly, biodiversity is the source from which human race derives food, fodder, fuel, fibre, shelter, medicine and raw material for meeting his other multifarious needs and industrial goods required for the ever changing and ever increasing needs and aspirations. Biodiversity is thus the biological capital of our planet and it forms the foundation upon which human civilization is built. [10] 

TK is a community - based system of knowledge that has been developed, preserved and maintained over many generations by the local and indigenous communities. through their continuous interactions, observations and experimentations with their sur-rounding environment. It is unique to a given culture or society and is developed as a result of the co-evolution and co-existence of both the indigenous cultures and their traditional practices of resource use and ecosystem management. [11] TK is a general term, which refers to the collective knowledge, beliefs and practices of indigenous/local people on sustainable use and management of their ambient resources. Through years of observations and analysis, trial, error or experimentations, the traditional communities have been able to identify useful as well as harmful elements of their ambient flora and fauna. Such knowledge (acquired through ages) has always remained as part of their life, culture, traditions, beliefs, folklores, arts, music, dance, etc. [12] TK covers a broad spectrum of the local and indigenous people’s traditional life and culture, art, music, architecture, agriculture medicine, engineering and a host of other spheres of human activity [13] 

TK is widely known as a valuable attribute of biological diversity and is one of the important sources of sustainable development in most of the developing countries. TK is associated with many fields such as, agriculture, medicine, art and architecture, music, folklore, etc. where biological resources are the main components utilized. [14] In India, TK in its various forms fulfils the human needs of the local and indigenous people in different ways. TK has also contributed much to the forest conservation, soil conservation, seed conservation and crop biodiversity. This has led to the sustained food production, crop yields and health care. [15] 

The current international negotiations on the issue of protection of TK, the term protection is mostly seen as providing a framework to encourage the maintenance of practices and knowledge embodying traditional lifestyles. But in its actual sense, protection as provided by Article 8(j) of CBD [16] also requires promotion of ‘wider application’ of TK. Some describe protection in this context as ‘a tool for facilitating access to TK’ and some say that preservation of TK is not only a key component of the right to self-identification and a condition for the continuous existence of indigenous and traditional people it forms a central element of the cultural heritage of humanity. [17] 


The most complex set of problems facing the future of traditional knowledge comes from the misappropriation of this knowledge from the local communities and tribal people who should be its rightful owners. [18] In the traditional system of India, there has not been a system of private ownership of knowledge in relation to the use of biodiversity such as farming, fishing, animal rearing, healing and use of medicinal plants [19] 

The rampant commoditization of TK through its exploitation and appropriation has accelerated the debate of protecting TK and its subset TM. In most of the cases, developing countries were the victims of these misappropriations by the researchers, scholars and institutions from outside the community with neither the consent of the community nor agreements to share benefits arising from the use of the knowledge, made them to counter the western ‘protectionist’ measures in the form of IPR for the knowledge that was already known to this part of the world. [20] 

A diversity of views has been expressed about the relationship between traditional knowledge and IPRs. Some commentators argue that IPRs can provide an incentive for continued investment in the preservation of these practices. [21] Other commentators argue that traditional knowledge generally falls outside the parameters of protection offered by current IPR regimes, and that these regimes may enable the knowledge of indigenous and local communities to be misappropriated by others. These views are not mutually exclusive, and there are examples where both are true. Nevertheless there are a growing number of instances in which IPRs have been used to gain control over traditional knowledge, without provision for benefit sharing. [22] 


Humankind has been prospecting biodiversity from the very dawn of his civilization. Modified use of bio-resources for food, medicine and other material requirements had been the traditional for Modern prospecting involves well-organized research and methodologies. [23] Bioprospecting in essence means – an activity involving survey, exploration, documentation and evaluation of biological resources and their derivatives and/or associated TK, leading to identification and/or isolation of commercially valuable products (genes, biochemical) compounds, derivatives and/or any other tangible and in-tangible components including IPR covered processes, technologies and services derived from wild or domesticated biodiversity. [24] 

Bioprospecting is generally described as the search for naturally occurring chemical compounds and biological material, especially in extreme or biodiversity-rich environments like rainforests and hot springs. Researchers collect samples of plants and microorganisms, which are analyzed for useful chemical and genetic material that can be extracted. [25] 

The major concerns of the developing countries with regard to access to and transfer of genetic resources and biotechnology are:

prevention of biopiracy and misappropriation,

development of international systems of protection of TK and

means for fair and equitable benefit sharing and technology transfer.

The TWCs therefore have to be alert and sensitive to the changing global developmental scenario and must adopt and adapt appropriate measures to safeguard their interests and to take the best advantage of the legally binding international laws and multilateral agreements such as CBD, TRIPS19 (Trade-Related Intellectual Property Rights of WTO), ITPGRFA, which are now in force. [26] CBD is the first international legal instrument that brought out a radical change from the prevailing common perception on genetic resources as ‘common heritage of humankind’ to a legally binding regime that confers ‘sovereign rights’ to the states over their biological resources and associated TK. The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was established in 2001 and it began to study the issues related to providing an international dimension to protection of TK associated with the use of genetic resources. [27] 

Access and benefit sharing regimes

The Convention on Biological Diversity (CBD) encourages countries to enact access and benefit sharing (ABS) regimes. Article 15.1 states that: "Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation." ABS regimes base their provisions upon such nation state sovereign rights. By exercising such rights it is intended that these countries will be better able to capture the benefits from industrial use of their biogenetic resources while conserving and sustainably utilising biodiversity. [28] 

The development and transfer of appropriate technology is important for the successful realisation of the CBD’s objectives. The CBD refers to technologies that are "relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment." It requires Parties to transfer technology to developing countries on "fair and most favourable terms", including on concessional and preferential terms where mutually agreed (Article 16(2)). [29] 

The CBD recognises that the development and transfer of technology will be affected by IPRs. Where technology is IPR protected, it requires access to be provided on terms that are "consistent with the adequate and effective protection" of those rights (Article 16(2)). It also requires that, where a developing country has provided access to genetic resources, that country should be provided with access to technology that makes use of those resources (Article 16(3)). Notably, the CBD requires Parties to co-operate, subject to national legislation and international law, to ensure that IPRs "are supportive of and do not run counter to" the CBD’s objectives (Article 16(5)). [30] 

Conservation and Sustainable Use of Biological Diversity

Among its many obligations relating to conservation and sustainable use, the CBD requires Parties to integrate considerations relating to conservation and sustainable use into national decision-making (Article 10). [31] It requires its Parties to adopt measures relating to the use of biological resources to avoid or minimise adverse impacts on biological diversity (Article 10(b)). Further, Parties are encouraged to integrate the conservation and sustainable use of biological diversity into relevant sectoral or cross sectoral plans, programmes and policies (Article 6(b)). Parties are responsible for identifying processes and categories of activities that have or are likely to have significant adverse impacts on biological diversity and monitoring their effects (Article 7(c)). The granting of IPRs could, arguably, be such a category of activity. [32] 

The CBD also includes a number of obligations relating to the conservation of in situ biological diversity. For example, it requires Parties to "control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts" (Article 8(g)). Implementation of these obligations will be particularly important in relation to the conservation of agricultural biodiversity, where IPRs provide a strong incentive for the development of genetically modified plant varieties. [33] 

There are three specific issues of conflict between the CBD and the TRIPs Agreement: [34] 

where patentable inventions are based on biological material, the TRIPs Agreement does not clearly provide for either the disclosure of the source of the material utilised in the inventions or the obtaining of prior informed consent (PIC) of the country of origin of the material;

the conventional forms of IPRs included in the TRIPs Agreement are inadequate to protect traditional knowledge in an effective manner; and

the patenting of plant varieties.

The TRIPs Agreement tends to support patents on all things and disregard PIC and disclosure of country of origin. This erodes the sovereign rights of a country over its biodiversity and encourages biopiracy, whereby a person or a corporation can transfer and own bio-resources of a country and be associated with traditional knowledge. [35] 

The CBD recognises community rights over biodiversity and traditional knowledge, and the need for the protection of such knowledge with adequate benefit-sharing with the source communities. This is not recognised by the TRIPs Agreement, which can facilitate wrong granting of patents and/or grant of patents based on a disregard for existing traditional knowledge in the public domain. [36] 

Furthermore, a strong IPR regime promoted by the TRIPs Agreement grants IPRs on the basis of uniformity and stability in a plant variety, which tends to encourage further erosion of biodiversity. Strong IPR regimes also tend to encourage private control and excessive commercial exploitation of the existing Plant Breeders Rights (PBRs) [37] 

By encouraging its parties to provide access to and to equitably share the benefits arising from the utilisation of genetic resources, the CBD seeks to establish incentives to conserve biodiversity. Its approach to "access and benefit sharing" is reflected in a number of the CBD's provisions. [38] 


Genetic resources and associated TK are important leads for bioprospecting and bio-industry. Judicious and harmonious use of these resources in bioprospecting can lead to sustainable human development in biodiversity – rich countries of the Third World. The disproportionate distribution of biodiversity wealth and associated TK and biotechnological capability in South and North countries continues to be a barrier in building up mutually beneficial bio-partnerships among and between these countries. The inadequacies of existing IPR system to accord legal protection to TK related to genetic resources are yet other issues of deep concern at national and international levels. [39] 

Policy-makers have an important role to play in ensuring that policies and practices relating to IPRs, and the need for the conservation of biodiversity, are mutually supportive. Governments must adopt an integrated approach across national and international forum, as well as between different international forum, if they are to create space for implementing the objectives and provisions of the CBD. [40] 

In addition to taking action at the CBD and the WTO, policy-makers should ensure that work in other international forum is supportive of, and does not undermine, successful resolution of issues relating to IPRs. Relevant institutions include: the UN Food and Agriculture Organisation (FAO); certain UN human rights bodies and instruments; the United Nations Conference on Trade and Development (UNCTAD); the UN Educational, Scientific and Cultural Organisation (UNESCO); and the World Intellectual Property Organisation (WIPO). A discussion of each of these organisations is beyond the scope of this paper.

Value–addition to bioresources and TK and technology transfers involving TK holders and their community organizations/institutions are key processes that will not only help ensure the social, cultural, spiritual, economic and technological empowerment of the communities, but also to promote further enrichment of their TK and traditional resource wealth. [41] Positive and defensive protection measures along with development of sui generis laws may perhaps be the best and immediate options for countries like India to provide IP rights to TK holders.


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