Convention of Biological Diversity, Biological Diversity Act and ABS - 3 decades of Biodiversity Governance
Extensive biodiversity loss in the past decades has spared neither
developed nor developing countries. Species extinction, over-harvesting, introduction
of exotic species, habitat loss, pollution and climate change has led to an
increased risk portfolio for marginalised communities. This in turn has led to
fears that the existence of life on earth cannot be taken for granted. These
concerns on biodiversity loss led to the gradual revaluation of integrating
resource availability with that of development needs of mankind. The need for
ecosystem stability and habitat heterogeneity has slowly taken credence over conventional
economic standards such as Gross Domestic Product.
Rapidly accelerating biodiversity loss led to a series of introspections and eventually to a worldwide catharsis amongst nations that resulted in countries coming together at the Rio Summit in 1992, where major legally binding conventions for the protection of nature and life itself were adopted including the adoption of the Convention of Biological Diversity (CBD).Now, as more than 25 years have passed since 197 countries became party to the Convention of Biological Diversity, countries worldwide have taken significant steps to protect their biodiversity.
India, as a key mega-biodiversity country adopted the Biological Diversity Act in 2002 to halt and reverse the effects of diversity loss. The act was hailed as an important step towards preserving our vast biodiversity and the government took immediate steps in forming the National Biodiversity Authority, State Biodiversity Boards as well as local level Biodiversity Management Committees.
The Biological Diversity Act (BD Act) was considered a pioneer legislation as it recognized the sovereign right of nations over their natural resources and put in restrictions on the access of bioresources by user countries. CBD determines that access to genetic resources rests with the national government and is subject to national legislation. This decision shifted the balance of power of utilising bio-resources from the user countries to the provider countries. Significantly, while most of the world’s biotechnology-based patents are owned by developed countries and most of these resources are sourced from mega-diverse country like India, the BD act came as a game changer to ensure that conservation and sustainable use of resources led to proper sharing of benefits for local populations. The message that the use of genetic resources should not bypass the poor people went a long way in correcting the historical injustice that provider countries have suffered for centuries.
The CBD in its
very spirit laid the foundation for ethics taking priorities over mindless
exploitation and constantly sounded a nagging reminder to the international
community in the form of Article 15 and Article 8 (j)[1].
Article 15 of the CBD recognizes the right of states to their genetic resources
and Article 8 (j) recognizes the rights of communities to their traditional
knowledge.
With these
guidelines in mind, most countries that had signed the CBD met again at Nagoya in
Japan in 2010 and adopted the Nagoya Protocol that aimed to give effect to the
fair and equitable sharing provisions of the CBD.
The Nagoya
Protocol in its simplest interpretation sought to ensure that any commercial
and research utilization of genetic resources that belong to a state and
associated traditional knowledge that belongs to the communities holding this
traditional knowledge shares the benefit of such utilization with the
government and the community that have conserved such resources as well as
knowledge since time immemorial.
Biological Diversity Act in Action
Under the
Biological Diversity Act promulgated by the Government of India in 2002, an
important regulatory mechanism was the emphasis provided for Access and Benefit
Sharing (ABS) to local populations. Having integrated ABS within a decade of
the Convention of Biological Diversity, India has come to be regarded as a
pioneer country as only 105 out of 197 countries that signed the Convention on
Biological Diversity have formed a national legislation for regulatory use of
bio-resources. This initial initiative taken by the Indian government will go a
long way in strengthening the case of securing benefits for its rightful owners
in the future coming decades.
The Biological
Diversity (BD) Act is a complex multi-layered legislation that seeks to address
the issues of managing bio-resources in the most decentralized manner possible
without compromising upon the sovereignty of the nation or community’s rights
over these resources.
The BD act which
became operational after the adoption of the Biological Diversity Rules in 2004
lists the conditions under which persons, commercial firms and other
institutions can access biological resources occurring within India and the
knowledge associated with the biological resource, for either research or for
commercial utilization or for bio-survey or for bio-utilization.
Essentially,
these elaborate conditions and guidelines were instituted to ensure that the
basic tenets of the Convention of Biological Diversity which are sustainable
use of its components and fair and equitable sharing of the benefits arising
out of the commercial utilisation of bioresources and associated knowledge are
well protected.
The act in
combination with various other policies and laws such as the National
Biodiversity Action Plan, National Forest Policy, National Wildlife Action
Plan, National Forestry Action Programme, National Environment Policy, National
Action Plan on Climate Change are being continuously strengthened to protect,
conserve and sustainably use the country’s bio-resources.
The act assumes
significance as it imposed prohibitions on the transfer of genetic material
originating from India without specific approval from competent authorities.
The act also strengthened the country’s stand with respect to anyone claiming
an intellectual property right over biodiversity related knowledge.
Adopting Access and Benefit Sharing Mechanism
With the
adoption of the Biological Diversity Act in India, focus shifted on actualising
the tenets of the Convention of Biological Diversity. Internationally, too, it
was felt that an efficient mechanism needs to be adopted that is acceptable to
all countries and becomes a reference point for all bioresources related
issues.
Thus, for a
process that began in 1992 with the Convention on Biological Diversity, the
detailed action points were adopted under the Nagoya Protocol in 2010 which
focuses on the equity provision of the Convention of Biological Diversity and
specifically on access to genetic resources and the fair and equitable
utilization sharing of benefits resulting from their utilization.
Almost
immediately, countries began the process of implementing national legislations
to adopt the regulatory frameworks and India again took a lead and adopted the
Access and Benefit Sharing guidelines in 2014.
India’s stand
leading up to the negotiations that finally led to the adoption of the Nagoya
Protocol was that of intense negotiations and in the words of the then Minister
of State (Independent Charge), Ministry of Environment, Forests and Climate
Change, Shri Prakash Javadekar, he said that India has been a victim of
misappropriation or biopiracy of our genetic resources and associated
traditional knowledge, which have been patented in other countries (well known
examples include neem and haldi). It is expected that the Nagoya Protocol on
ABS which is a key missing pillar of the CBD, would address this concern.[2]
India and other developing countries had fought hard in various international
negotiations to correct the historical wrong of being victims of biopiracy and
succeeded in scoring a major victory.
The Nagoya
Protocol provides an international framework for implementing and advancing the
third objective of the CBD, which is “the fair and equitable sharing of
benefits arising from the utilization of genetic resources, including by
appropriate access to genetic resources and by appropriate transfer of relevant
technologies, taking into account all rights over those resources and to technologies,
and by appropriate funding”.
The Nagoya
Protocol provides a certain degree of flexibility to parties to take domestic
legislative, administrative or policy measures to implement its various
articles, but nonetheless also imposes a number of obligations on parties,
geared towards ensuring that benefits arising out of the utilization of genetic
resources and associated traditional knowledge are shared fairly and equitably
between users and providers, taking into account all rights over resources and
technologies.
At the core of
the protocol are obligations related to access to genetic resources, to the
fair and equitable sharing of benefits arising out of utilization, as well as
to compliance with prior informed consent (PIC) and mutually agreed terms (MAT)
provisions. To support compliance, parties are obliged to take measures to
monitor the utilization of genetic resources, including through the designation
of checkpoints and reporting requirements. As evidence that genetic resources
have been accessed in accordance with PIC and that MAT have been established, a
permit or its equivalent has to be granted by the provider country at the time
of access. Once this permit or its equivalent is made available to the Access
and Benefit-sharing Clearing House of the Protocol, it becomes an
“internationally recognized certificate of compliance” which can be used to
prove legal access.
Nagoya Protocol parties
also have a set of additional obligations towards indigenous and local
communities (ILCs) regarding ILC rights over traditional knowledge associated
with genetic resources and, in certain instances, over genetic resources held
by these communities. These include obligations to take measures to ensure that
genetic resources and associated traditional knowledge held by ILCs are
accessed with their prior informed consent or approval and involvement, and
that MAT have been established.
In implementing
their obligations under the Protocol, parties are further required, in
accordance with domestic law, to take into consideration ILCs’ customary laws,
community protocols and procedures and, as far as possible, not to restrict the
customary use and exchange of genetic resources and associated knowledge within
and amongst ILCs.[3]
It is being
observed that more requests for permits and various mandatory benefit sharing
agreements with a commercial intent is being inquired by prospectors. Infact,
data suggests that the greatest demand for access to Genetic Resources is in
the agriculture sector followed by forest areas. A key agreement, the
International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA) was signed which seeks to establish an international ABS regime for
plant genetic resources for food and agriculture and was the first such legally
binding operational international instrument for access and benefit sharing for
genetic resources. Another key focus area for the ABS regime is the integration
of Sustainable Forest Management with ABS provisions so that more mutually
beneficial agreements can occur in the coming few years.
After the entry
into force of the CBD, many developing countries adopted legislation on the bio-prospecting
of genetic resources, to ensure that access to such resources would be granted
on mutually agreed terms and subject to prior informed consent, often also
involving indigenous and local communities. However, user countries of genetic
resources have largely failed to enact and implement compatible legislation, so
important measures to ensure benefit sharing once the genetic resources had
left the providing countries, were missing.
As a result, bio
prospecting has been met with wide mistrust, and in many countries achieving
access to genetic resources has proven difficult, involving lengthy and
complicated processes. India has evolved a decentralized mechanism that
essentially operates as independent structures and has specific roles for the
implementation of the Biological Diversity Act.
The three
structures were the National Biodiversity Authority (NBA) at the national
level, State Biodiversity Boards (SBB) at the state level and Biodiversity
Management Committees (BMC) at the local level. These three bodies are
statutory and autonomous in nature while NBA and SBBs are body corporate. To
ensure that independent autonomy exists, there is no overlap of NBA and SBBs on
issues of Access and Benefit Sharing.[4]
“Grant of approval
“which is a key regulatory mechanism and forms the key of the ABS system has
been demarcated between NBA and SBBs. Foreign individuals, companies or
institutions and non-resident Indians are required to seek prior approval of
the NBA to obtain any biological resources and associated knowledge occurring
in India.
Further, prior
authorisation of the NBA is required to transfer the results of any research
relating to any biological resources occurring in, or obtained from, India to
any foreign individual, company or institution, and also for applying for
Intellectual Property Rights (IPRs) for any invention based on any research or
information on a biological resource obtained from India. Indian citizens or
firms registered in India can obtain any biological resource for commercial
utilization or bio survey and bio utilization for commercial utilization after
giving prior intimation to the State Biodiversity Board only.
However, the
benefit sharing (BS) guidelines are to be issued by NBA. NBA may take any
measure necessary to oppose the grant of IPRs in any country on any biological
resource or associated knowledge obtained from India, on behalf of the Central
Government[5].
The BMC is a
powerful statutory body which is an integral part of the legislative system
setup by the BD Act. BMCs are being constituted at various local levels
throughout the country and have been set up at the block level in the state of
Tamil Nadu. Still in its initial stages of formation, the functioning of BMCs
has been plagued with a lack of interest in implementation agencies, lack of
clarity amongst beneficiaries and confusion amongst existing local bodies that
BMCs would usurp some of their existing powers. BMCs still have a long road
ahead before it sheds the tag of a data collection agency and asserts its
authority as a constitutionally mandated statutory body that can play a vital
role in protecting the biodiversity of the land while sharing benefits amongst
its constituents.
ABS and its implications on Forest Based Resources
The issue of
forests and its relationship with the ABS regime[6]is
complex in nature with concurrent interest expected to increase in the coming
few years. Forests are closely linked with biodiversity use and provide a
myriad variety of valuable products for commercial as well as research
purposes. Forests are covered under the first objective of Convention of
Biological Diversity as conservation of resources has a direct impact on
protection of resources. At the same time, efficient forest management is intricately
linked with providing benefits to communities which have been living in forest
landscapes for generations.
Thus, the ABS
regime is expected to be increasingly exercised with respect to benefit sharing
of forest-based resources with local communities. The challenge is to integrate
traditional knowledge associated with biological resources within forests with
that of conventional forest management systems in India. Most policies and
regulations related to conservation of forest resources gives scant attention
to traditional knowledge and as a result making it even more difficult for
managers of the ABS regime to integrate this traditional knowledge when it
comes to sharing of benefits that accrue from forests. Hence, the challenge in
this regard is to establish linkages of traditional knowledge with mainstream
forest management practices especially with regard to the ABS regime.
The
Intergovernmental Forum on Forests in its report dated 2000, reached the
conclusion that traditional systems significantly contribute to the effective
management, conservation and sustainable use of forest resources, in accordance
with Article 8 (j) and other provisions of the Convention and IPF/IFF proposals
for action. With this report and contiguous
subsequent developments, the role of traditional knowledge as an important
repository for effective forest management has increased over the years.
However, as discussed above, the main hindrance to incorporating traditional
knowledge into forest management is the absence of recognition to traditional
knowledge combined with a lack of legal protection against usurping the
knowledge of indigenous communities. Here, the role of the People’s Biodiversity
Register (PBR) gains prominence and perhaps presents a roadmap for future
forest management prescriptions.
The narrative of
changing perceptions has led to more integration of ABS regimes with the
interest of local communities in matters pertaining to bioresources. The most
significant change has occurred in the change of narrative from “Consulting” to
‘Consent”[7].
This has provided clear guidelines to policy makers that the role of the
indigenous and local communities over access of genetic and bioresources cannot
be ignored. People’s Biodiversity Register as a repository of information that
can be legally verified will go a long way to provide local communities with
rights on their resources.
People’s
Biodiversity Register aims to document folk knowledge of status, uses, history,
ongoing changes and forces driving changes in biodiversity resources, gainers
and losers in these processes and people’s perceptions of how these resources
should be managed[8]. PBRs
are useful in many ways to strengthen the claims of the local communities over
their resources while at the same time mapping the change in resources as a
result of harvesting practises. These documents have the potential to carve out
a role in the international discourse on conservation and sustainable use of
bioresources as they help identify the right benefit claimer. Additionally,
PBRs provide geographical identity to the bioresources and can be useful in
providing a tool for clarification when disputes over biopiracy and
Intellectual property rights arise.
However, it must
be noted that linking traditional knowledge with traditional forest management
systems is a challenging task. Though PBRs provide rights over traditional
knowledge associated with the forest region in question, the proprietary right
of the communities over land is more often than not, a matter of dispute. In
India, most forests are owned by the government and though communities may be
given access in some cases as bonafide users of the resources, they are most
often than not allowed to commercially trade these resources. In view of these
complications, the role of communities and traditional knowledge in forest
management systems must be further analysed as well as incorporated in future
discourses. A simple suggestion put forth by a traditional healer in Dindigul
district of the state of Tamil Nadu was that while the proprietary rights of
forest areas remain as the unquestionable property of the forest department,
the rights over associated knowledge of bioresources must squarely be with the
community which is the holder of the knowledge. Sharing of benefit from genetic
resources can be under the custodianship of the state in the forms of one of
its bodies such as the Tamil Nadu Biodiversity Board in the case of Tamil Nadu.
ABS and its implications on Agriculture Based Resources
The CBD was
created with wild biodiversity in mind, especially medicinal plants where the
source of a particular genetic resource and associated traditional knowledge
can often be established easily. The situation is different with respect to
genetic resources for food and agriculture, including crops and livestock, as
humans have modified these in an incremental manner and in many different
geographical locations far from where they were originally domesticated. In
recognition of this situation, a special instrument has been developed for
access to crop genetic resources, the International Treaty on Plant Genetic
Resources for Food and Agriculture. This treaty establishes a multi-lateral ABS
- system for a common pool of 64 of the most important food crops and forage
crops which are held in ex-situ collections worldwide (Santilli 2012).[9]
The practice of
agriculture is an extremely dynamic process. Since the start of agriculture,
humankind has continuously modified plant genetic resources to suit the special
nature of agricultural biodiversity, its distinctive features and problems
needing distinctive solutions which was acknowledged by the Conference of the
Parties to the CBD at its fifth meeting in 2002. The COP considered to include
the following:
1. Agricultural biodiversity is essential to satisfy basic human
needs for food and livelihood security;
2. Agricultural biodiversity is managed by farmers; many components
of agricultural biodiversity depend on this human influence; indigenous
knowledge and culture are integral parts of the management of agricultural
biodiversity;
3. There is a great interdependence between countries for the
genetic resources for food and agriculture;
4. For crops and domestic animals, diversity within species is at
least as important as diversity between species and has been greatly expanded
through agriculture;
5. Because of the degree of human management of agricultural
biodiversity, its conservation in production systems is inherently linked to
sustainable use
6. Nonetheless, much biological diversity is now conserved ex situ
in gene banks or breeders’ materials;
7. The interaction between the environment, genetic resources and management practices that occurs in situ within agro-ecosystems often contributes to maintaining a dynamic portfolio of agricultural biodiversity.[10]
It is to be noted that traditional agriculture and conventional practises are exempted from the purview of benefit sharing[11]. However, there are various aspects related to agriculture such as the use of genetic resources and making commercially distinct products for medicinal use that can come under the purview of the ABS regime.
There are numerous cases of local initiatives that can help protect genetic resources. Rahibai Soma Popere of Kombhalne village in Maharasthra has helped created a seed bank that distributes up to 122 varieties of 22 crops and has even applied for registration in Protection of Plant varieties and farmers right authority, India (PPV and FRA) under farmer’s variety thus helping preserve several varieties.[12]Several NGOs in India have worked towards protection of seed based genetic resources. Navdanya is an internationally renowned organisation that has collected more than 5000 crop varieties and has helped preserve several native species. Traditionally, most agricultural societies in India integrated preservation of crop species into the social and religious milieu, an act that has helped preserve hundreds of species which would have been lost otherwise with the rise of commercial agriculture.
Accordingly, ABS implementation cannot work in isolation and must be commensurate with other international treaties. Integration between ABS and ITPGRFA needs to consider the legislative, administrative and policy measures that cross each other’s path.
The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) popularly known as the International Seed Treaty, is a comprehensive international agreement in harmony with the Convention on Biological Diversity, which aims at guaranteeing food security through the conservation, exchange and sustainable use of the world's plant genetic resources for food and agriculture (PGRFA), as well as the fair and equitable benefit sharing arising from its use.
It also
recognises farmers' rights, subject to national laws to: a) the protection of
traditional knowledge relevant to plant genetic resources for food and
agriculture; b) the right to equitably participate in sharing benefits arising
from the utilisation of plant genetic resources for food and agriculture; and
c) the right to participate in making decisions, at the national level, on
matters related to the conservation and sustainable use of plant genetic
resources for food and agriculture. The treaty establishes the multilateral system
of access and benefit-sharing to facilitate plant germplasm exchanges and
benefit sharing through standard material transfer agreement (SMTA)[13].
The Nagoya
Protocol[14]
in the development and implementation of its access and benefit sharing
legislation or regulatory requirement noted that each party shall: consider the
importance of genetic resources for food and agriculture and their special role
for food security (Article 8c). It is envisaged that though conventional
agriculture does not fall under the Nagoya Protocol, however if any plant
material be used for its genetic material, it should be done only after prior
informed consent is approved by the provider of the material.
The key
interlinkage between them is again with respect to the rights of the
traditional communities and of farmer-bred and traditional varieties which may
be in the danger of misappropriation or extinction. The challenge would be to
protect the intellectual property rights of the traditional farmer who is under
constant threat from external agencies.
India for its
part has taken the right measures with the legislation on Plant Variety
Protection and Farmers’ right Act that recognises farmers’ right to save and
sell seed that has been produced on farm as they have been done traditionally.
There is an
opportunity to link People’s Biodiversity Register with farmer’s rights over
their traditional knowledge. Not only are PBRs useful for documenting
forest-based resources, they can be extremely useful in documenting genetic and
bioresources related to agriculture as the PBR formats encompasses several
elements of agri-diversity based data. Under the ITPGRFA, the concept of Plant
variety protection or the Plant breeders right is a form of an intellectual
property right granted to the breeder of a new variety. Similarly, PBRs can be
useful to preserve the rights of farmers or communities over the traditional
knowledge they may hold over a particular variety.
The need to
explore the linkage of PBRs and implementation of ITPGFRA will be further
investigated in the coming years as the role of implementing farmer’s rights
gains prominence and ITGRFA takes concrete steps to adopt a precise definition
of Famer’s rights so that they are protected from future rights
violations.
ABS and its implications on Animal Husbandry Based
Resources
Traditional
indigenous breeds of animals are considered by many to be ideally suited to
harsh tropical countries like India. Traditional breeds were raised by farmers
throughout history as a result of an intimate study of local conditions. Most
traditional breeds are known to be genetically close to their wild relatives as
the breeding selection process considered the harsh environmental conditions
for development of subsequent breeds. However, raising traditional breeds is
under sustained onslaught by modern processes of breed selection that is
currently predominant in the entire world.
As
industrialisation advanced, so did commercial agriculture and the need for more
efficient breeds. This led to a gradual reduction of traditional breeding
systems and a consequent loss of agro biodiversity. There was a steady loss of
traditional knowledge associated with ancient breeding systems.
In addition to
that, cases of biopiracy also severely affected traditional systems of
breeding. It took several decades before the international community
acknowledged and took steps to protect and preserve these traditional systems. Animal
genetic resources which are composed of breeds and strains of domesticated
animals that humans have developed out of 40 wild species in the past 10000 years
were placed under the purview of the Nagoya Protocol.
While access to
crop genetic resources is protected under the International Treaty on Plant
Genetic Resources for Food and Agriculture, for animal genetic resources (AnGR),
an equivalent instrument is absent. The impending and on-going implementation
of the Nagoya Protocol at national levels therefore creates some urgency for
the animal genetic resource sector to engage with these questions.[15]India
which a key repository of genetic resources related to animals holds a rich
diversity of distinct livestock breeds. It is thus essential that these breeds
be protected and any utilisation of knowledge of these breeds has a direct
benefit to the communities that holds the knowledge over these breeds.
The Nagoya
Protocol recognizes the importance of genetic resources to food security,
public health, biodiversity conservation and mitigation of and adaption to
effects of climate change. While there is no direct reference to animal genetic
resources in the protocol, the protocol attempts to ensure that any user of
genetic resources and traditional knowledge pertaining to genetic resources
must comply with the ABS regulation by declaring the so-called due diligence.
The user therefore must ensure and prove that the genetic material used was in
accordance with the applicable legislation of the provider country. Also, the
benefits must be distributed in a fair and equitable manner in accordance with the
agreed terms and conditions.
Linking ABS to
crop resources and animal husbandry is fraught with challenges. While
commercial application of animal genetic resources may be limited, application
of traditional knowledge for commercial purpose is a possibility. For example,
it would be interesting for an industry to infuse elements of traditional
knowledge into modern breeds of cattle to make them more resilient in harsh
conditions.
In India, the
lack of a suitable instrument was noted and the Indian Council of Agricultural
Research (ICAR) initiated a mechanism for “Registration of Animal Germplasm” by
giving temporary authority to National Bureau of Animal Genetic Resources
(NBAGR), Karnal. Subsequently in 2008, ICAR constituted a Breed Registration
Committee (BRC) under the chairmanship of Deputy Director General (Animal
Science), ICAR and having members from National Biodiversity Authority (NBA)
and Dept. of Animal Husbandry Dairying & Fisheries, Govt. of India for
registration of new breeds. This mechanism is the sole recognised process for
registration of livestock and poultry breeds at national level.[16]
Currently,
People’s Biodiversity Registers must take into account the rights of
traditional breeders who may be spread over a larger area as opposed to the
geographical limit that a PBR mandates. While the document may not provide a
complete legal protection from any case of theft of traditional knowledge of
breeders, a bio-cultural protocol can be inserted in those geographical regions
which have high density of traditional breeders. This can supplement and strengthen
claims submitted to the Breed Registration Committee in the future.
The Future Outlook for Access and Benefit Sharing in
India
While users are to
share benefits as mandated under the BD act, an often-ignored aspect of ABS is the
link with industries that have a strong social commitment towards accessing
resources and wish to contribute benefits equitably. These actions of such
industries are largely driven by market perceptions and the desire for more
accountability on the part of the final customers. The silver lining is that
the trend of companies voluntarily taking steps to pay for benefits accrued has
increased significantly. Certifications, associations and a need for a unique
identity are leading companies to adopt measures that identify them as socially
responsible and use appropriate benefit sharing to develop a high brand
reputation.
While biodiversity-based
business from the natural oil, fragrances, timber, plantation crops and crop sectors
continuously strengthen their credibility, they have an intrinsic desire to build
their brand. They may not be required to share benefits, falling as they may
outside the purview of the BD Act; however the possible integration of legislations
such as Corporate Social Responsibility with ABS can be beneficial to
industries who wish to closely share benefits accrued from use of biological
resources. However, without mandatory compliance mechanisms, the onus still
lies upon the voluntary acceptance of the ABS mechanism by companies involved
in bio-trade. Industries are likely to be more comfortable in sharing non-monetary
benefits, as this serves as a good source of advertisement for the companies
and the value of benefits derived from the use of non-monetary benefits would
have more significance than sharing mere monetary benefits.
The concept of
Access and Benefit Sharing has been highly debated and vigorously researched,
especially in pioneer developing countries like India. There have been several suggestions
made to improve the structure of implementing ABS within the framework of the
existing laws. However, in the midst of much amplified noise and use of
jargons, it is to be remembered that the Convention of Biological Diversity was
set up to conserve biodiversity and provide benefits to providers. The Indian Biological
Diversity Act was constituted in the same lines and so was the Nagoya Protocol
which attempted to provide definite guidelines for access of resources.
However, the
paradigm needs to be reiterated that not only is benefit supposed to be shared
but biodiversity needs to be protected along with reversal of fast-paced
biodiversity loss. This remains the core objective of all the acts related to
biodiversity. The resource providers are not yet been acknowledged and even if
they are, consent is largely ignored. Additionally, actual monetary benefits
are usually too paltry to be considered. Concepts such as Bio-cultural
protocols and People’s Biodiversity Registers can serve as enablers in
accelerating the acceptance of ABS provisions, however the road ahead is
fraught with risks as the full implication of the act has not yet been
actualised to its full potential in India.
[1]https://www.cbd.int/convention/articles/default.shtml?a=cbd-15
[2] Press Information Bureau, July 2014, India facilitates entry into force of Nagoya Protocol on Access and
Benefit Sharing. New Delhi, Government of India,
Ministry of Environment, Forest and Climate Change
[3]AU-IBAR, 2016, Into animal
genetic resources development in Africa: Challenges and Opportunities for the
Nagoya Protocol. AU-IBAR Reports
[4] Research and Information System for Developing Countries, National Study on ABS implementation in
India, New Delhi, ABS Capacity Development Initiative
[5] Section 3, 4, 6, 7, 21(2) and 18(4) of the Biological Diversity
Act, 2002
[6] Jose Cabrera, Olivier
Rukundo and Frederic Perron-Welch, The
interface between sustainable forest management and access and benefit sharing
outlining potential areas of synergy, Quebec, Centre for International
Sustainable Development Law Biodiversity and Biosafety Law Programme.
[7] Balakrishna Pisupati, 2015,The
Ten Questions to be Addressed while Developing National ABS Frameworks.
FLEDGE, India. Pp: 34.
[8]Environment, Development
and Sustainability, Volume 2, Number 3-4, Page 323
[9]Santilli, 2012, Agrobiodiversity
and the law. Regulating genetic resources, food security and cultural diversity.
Earthscan, Oxford and New York
[10]COP 5 Decision V/5, Appendix, paragraph 2
[11] Balakrishna Pisupati, 2015,
The Ten Questions to be Addressed while Developing National ABS Frameworks.
FLEDGE, India. Pp: 34.
[12]https://www.thebetterindia.com/114951/maharashtra-seed-mother-conservation-native-varieties/
[13]https://en.wikipedia.org/wiki/International_Treaty_on_Plant_Genetic_Resources_for_Food_and_Agriculture
[14]https://www.cbd.int/abs/about/
[15] Ilse Koehler-Rollefson and Hartmut Meyer, 2014, Access and Benefit-sharing of Animal Genetic
Resources Using the Nagoya Protocol as a Framework for the Conservation and
Sustainable Use of Locally Adapted Livestock Breeds, League for Pastoral
People and Endogenous Livestock Development, The ABS Capacity Development
Initiative
[16]http://www.nbagr.res.in/accessionbreed.html
