More questions than answers

29/06/1992

THE BIODIVERSITY treaty which was finalised last fortnight has been hailed as a major victory for the South. As the US and France have both pulled out of the treaty, calling it fundamentally flawed, this belief has grown further. But is the treaty really so desirable?

The treaty, which deals with the conservation of biodiversity, expects the South to make commitments to protect its forests and wildlands where this genetic wealth is found. Seen in this light, there is an enormous asymmetry between the climate and biodiversity conventions. Under the climate convention, which has also been finalised last month, the North has not made any specific commitments to reduce its carbon emissions. But under the biodiversity convention, developing countries have committed to protect their forests, which are also carbon reservoirs and in many ways the main part of their deal on climate.

What has the South gained? Mostly words. The most contentious clauses have dealt with the access to the South's biodiversity and, in return, its access to North's biotechnology. For the patent-protected North, this was difficult to swallow. And, finally, a fragile agreement was arrived at which is contradictory and confusing at the very least. On one hand, the agreement says that this transfer of technology, including technology protected by patent rights, will be done in "accordance with international law". The very next sentence says that as intellectual property may "have an influence on the implementation of the present convention," countries shall cooperate to ensure that these rights "are supportive of and do not run counter to the objectives of this convention." Does the first intention of following international law subsume the second of changing it, or is it vice versa? More importantly, there is no indication of how this will be done.

The Indian government as well as most southern governments are under tremendous pressure in the Uruguay Round to accept stronger intellectual property regimes. In which case, will GATT provisions now be changed? If not, then should not the access to the South's biodiversity be dependent on this modification?

It is clear that developing country delegates had a tough fight to get even these intentions recorded. It is also clear that the US is not prepared to make any concessions, howsoever minor, which affect its economy. All this can only forbode a difficult time ahead as people learn to live and share a common earth.

Local communities have not gained anything for all their knowledge and efforts to protect the world's biodiversity. The convention suggests no mechanism for sharing benefits with them. If the world had paid a royalty on every potato, the American Indians, for instance, would have probably been the richest people in the world. And they themselves would have protected the world's biodiversity.

The biodiversity convention raises yet another set of unanswered questions: whether southern governments have the untrammelled rights to negotiate systems and conditions of access to biological diversity. In some cases, customary rights of the rural communities to these resources are recognised in law. In others, there has been an erosion in these rights, beginning with the colonial period.

If northern governments can argue, as indeed they do, that they cannot make commitments on behalf of their private sector, how then can the governments of the South negotiate the wealth of the forests without the participation of their people to whom the forests belong, if not legally then morally? The agreed draft opens up more questions than answers.

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