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Critiquing Narrow Critiques of Convention on Biological Diversity

Alphonsa Jojan (alphonsa@dakshin.org) Shawn Dsouza (shawn.dsouza@dakshin.org), Prakriti Mukerjee (prakriti@dakshin.org), Chetan Rao (chetan.rao@dakshin.org) and Kartik Shanker (kshanker@gmail.com) are associated with Dakshin Foundation, Bengaluru.

The Convention on Biological Diversity has brought about a paradigm shift in rights over genetic resources by recognising sovereignty of nations to utilise their own resources. The principles of equity and fairness enshrined in it are some of the key aspects that create a balance of power between technologically advanced countries and biologically rich countries. It is still important for countries with rich biodiversity
to exercise control over their genetic resources and associated knowledge, even when there is no commercial interest in the research proposed or undertaken.

The authors are grateful to the entire Dakshin team for their inputs on this topic.
 

The Convention on Biological Diversity (CBD) was formally adopted at the Rio Earth Summit, and it was acknowledged for the first time, in an international treaty, that conservation of biodiversity was a matter of common global concern (Preamble of CBD 1992). Moreover, the treaty recognised national sovereignty over resources. The agreement addresses ecosystems, species and genetic resources, and attempts to link traditional management approaches to sustainable development. One of the key aspects of the convention is governing access to resources and benefit sharing, particularly that of genetic resources, and aims to make benefits fair and equitable, both between nation states and for communities. Many countries passed legislation to meet the obligations of the CBD, including India which passed the Biological Diversity Act (BDA) in 2002 (MoEFCC 2014a).

While there are many aspects to the CBD and BDA that are obviously beneficial, the unintended consequences it has had on collaborative research have received much criticism over the years from the scientific community. Recently, the article “When the Cure Kills: CBD Limits Biodiversity Research” (Prathapan et al 2018), written in the journal Science by five eminent scientists and endorsed by 175 signatories, discusses restrictions imposed by the CBD on non-commercial research and the importance of creating a facilitative legal environment for such research. In response, we provide an
Indian perspective which proposes that the CBD itself offers ways for promoting non-commercial research. We further propose that the CBD framework can assist developing countries like India to boost biodiversity research in their own countries, thereby ensuring equity and fairness among countries.

As mentioned by the authors, the CBD has brought about a paradigm shift in rights over genetic resources by recognising sovereignty of nations to utilise their own resources. Even though states have sovereignty over their resources, the negotiated text of the CBD puts in place, among other things, two major international commitments on the countries that have ratified the CBD. One such commitment is creating a facilitative access regulation framework for genetic resources that the member states can use on mutually agreed terms and conditions for benefit sharing (Article 15 of the CBD). The other commitment is providing access to and transfer of technology (including biotechnology) to developing countries under fair and most favourable terms (Article 16 of the CBD). These obligations of the member states of the CBD have huge implications for conservation and taxonomic research for all members and especially developing countries like India.

Research and Regulation

Ecological research in India is maturing with significant advances in recent years. However, several issues remain. For instance, access to resources and expertise in conservation and ecology is limited to a few elite national institutions such as Indian Institute of Science, National Centre for Biological Sciences, several IISERs (Indian Institutes of Science Education and Research), Wildlife Institute of India and a few others. Even when state-of-the-art infrastructure and technology is available, it is generally more expensive to use (especially for molecular analysis) and availability of funding for these purposes is scarce. In addition, there is a conspicuous dearth of conventional taxonomic expertise (Dar et al 2015). Taxonomy is struggling as a field in India, indeed the world over, and these obstacles can only be overcome by sharing expertise at a global scale. As the authors of “When the Cure Kills” argue, the absence of such collaboration hinders research globally as well as in India, where it acts as a research and learning barrier for a majority of Indian researchers.

However, it is for addressing exactly these issues that the regulatory provisions in the CBD, especially those under Articles 15 and 16, become crucial. By creatively using Article 15, global sharing of genetic resources and expertise on the principle of equity and fairness can be encouraged. Access to and transfer of technology on concessional and preferential terms to developing countries can be assured using Article 16. These obligations are particularly relevant in the case of non-commercial research as it brings to the fore the importance of non-monetary benefits which are enlisted in the Nagoya Protocol under the CBD. These benefits can be claimed in return for providing access to genetic resources and knowledge. Non-monetary benefits include access to and transfer of technology, collaboration, cooperation and contribution in education and training, and institutional capacity building (Paragraph 2 of Annex of Nagoya Protocol). A large majority of public institutions, particularly traditional central and state universities, can benefit from Articles 15 and 16 of the CBD. Developing countries can, in return, make relaxations to their access regulations with respect to genetic resources.

We believe India has crafted its regulatory framework so as to ensure a facilitative regulatory environment which can be used as a model to resolve some problems concerning biodiversity research.

By invoking the sovereignty principle, research on Indian biodiversity resources is regulated mainly by Sections 3 and 4 of the BDA. These sections regulate research carried out by foreign persons and entities, non-resident Indians (NRIs) and Indian companies with non-Indian participation in shares or management. Research by Indians is not regulated by the BDA except when such research results in commercial utilisation or for securing intellectual property rights. But India, by framing Section 5 of the BDA has included such a relaxation in its national law. Section 5 of the BDA enables the Government of India to make policy guidelines with respect to collaborative research projects. These projects are exempt from access regulations under Sections 3 and 4 of the BDA. For further clarity, “Guidelines for Collaboration Research Projects” (MoEFCC 2006) was published with details for applying for collaborative research projects. Thus, by using Section 5 of the BDA, non-commercial collaborative research projects can bypass the general regulatory process under Sections 3 and 4 of the BDA, provided that the use is not for commercial purposes or for obtaining intellectual property rights.

With respect to non-commercial research in India by Indians, the BDA does not impose any regulation on research of Indian biological resources. But, many states have enacted their own state rules which require Indian researchers to intimate the relevant state biodiversity boards about their research and to pay certain fees (Sarji and Pisupati 2018). This obligation of intimation and payment of fees creates conflict between the BDA and subordinate state rules. In an attempt to set such conflicts to rest, the recent “Operational Guidelines for Processing Applications Received under Section 7 of the Biological Diversity Act, 2002” (National Biodiversity Authority 2017) released by the National Biodiversity Authority (NBA) has clarified that no application for the purposes of research on biological resources should be entertained by the state biodiversity boards under Section 7 of the BDA and the corresponding sections in the state rules. The guidelines check hurdles that Indian researchers may face while conducting research on biological resources in India. States are expected to amend their respective rules in light of the guidelines.

Even applications by Indians for exporting Indian biological samples outside India for research are increasingly processed within a reasonable period of time. Earlier, there has been complaints about the tedious process for getting permission to take biological samples from India to other countries. These complaints were mainly on account of a lack of clarity on the application process and considerable delay on the part of the NBA in granting permission. But, recent accounts suggest that India’s regulatory system is finding its feet, albeit slowly, with respect to non-commercial research. A laudable effort is the inclusion of paragraph 13 in “Access to Biological Resources and Associated Knowledge and Benefit Sharing Regulations, 2014” (MoEFCC 2014b) published by the Ministry of Environment, Forest and Climate Change. Paragraph 13 provides for a simple application process for Indian researchers to apply for carrying or sending biological resources outside India. These applications have to be processed within 45 days of their receipt.

Equity and Fairness in Research

The BDA does mandate strict regulation of research by persons other than Indians. Though many have argued that restrictions on NRIs (that is, any Indian who has not spent at least 182 days in India in a financial year) are unreasonable, the restriction placed on foreigners is said to be in furtherance of the principle of state sovereignty. This restriction on foreign entities does find support in many quarters as it can act as additional incentive for foreign universities or labs to collaborate with Indian universities and researchers. These sentiments arise from the principle of equity and fairness, and past experiences of misappropriation of bio-resources and knowledge.

The rationale for framing regulatory provisions by the parties to the CBD is to prevent past abuses in developing countries across the world that occurred due to free access to resources and knowledge. In what is commonly termed as parachute science, researchers from developed countries would go into other parts of the world, collect data or samples, publish papers to further their own research and careers with little acknowledgement of the countries they worked in or the people they worked with. This has been heavily criticised by many scientists, including from the developed world (Barber et al 2014). In fact, Barber et al call for a much more inclusive approach to collaborative research that seeks to promote the growth of science across the world. However, such changes in attitude and behaviour are unlikely to occur overnight and hence, it is only natural that these rules exist to regulate access to resources, and knowledge and its transfer.

There is no doubt that the legislation and regulation often have the perverse consequence of limiting legitimate or desirable activity. In this instance, a perverse consequence of the BDA has been to adversely affect scientific research, particularly taxonomy. However, it should be noted that the extent to which such research has been constrained is small. Equipment and funds are available for genetic analysis in India, and where expertise from foreign taxonomists is required, there are mechanisms to facilitate collaborative research. Certainly, these add obstacles, but are not prohibitive, as significant advancements in herpetological taxonomy, including numerous descriptions of new species, demonstrate. To suggest that the regulations themselves should be amended to serve a particular community of scientists is hubris.

The principles of equity and fairness enshrined in the CBD are some of the key aspects that create balance of power between technologically advanced countries and biologically rich countries. It is still important for countries with rich biodiversity to exercise control over their genetic resources and associated knowledge even when there is no commercial interest in the research proposed or undertaken. This is not to say that countries should be overly protective about their resources or knowledge, but that they should have and retain control over their resources through multiple ways. If the facilitative framework envisaged in the CBD ends up being too restrictive through bureaucratic anomaly or otherwise, efforts should be channelled to make the framework more efficient. Hence, in the name of equity and fairness, we should redirect the criticism towards the legal environment regulating biodiversity research from the one seeking blanket exemptions, and steer it towards a rhetoric that favours efficient and facilitative regulation.

References

Barber, Paul et al (2014): “Advancing Biodiversity Research in Developing Countries: The Need for Changing Paradigm, Bulletin of Marine Science, Vol 90, No 1, pp 187–210(24).

Dar, G H, A Khuroo, C S R and A H Malik (2015): “Impediment to Taxonomy and Its Impacts on Biodiversity Science: An Indian Perspective,” Proceedings of the National Academy of Sciences, India Section B: Biological Sciences, Vol 82, No 2.

MoEFCC (2006): “Guidelines for International Collaboration Research Projects Involving Transfer or Exchange of Biological Resources or Information Relating Thereto between Institutions Including Government-sponsored Institutions and Such Institutions in Other Countries,” Ministry of Environment, Forest and Climate Change, Government of India, New Delhi, http://nbaindia.org/uploaded/pdf/notification/7%20%20collaborative%20gui....

— (2014a): “India’s Fifth National Report to the Convention on Biological Diversity,” Ministry of Environment, Forest and Climate Change, Government of India, New Delhi, https://www.cbd.int/doc/world/in/in-nr-05-en.pdf.

— (2014b): “Guidelines on Access to Biological Resources and Associated Knowledge and Benefit Sharing Regulations, 2014,” Ministry of Environment, Forest and Climate Change, Government of India, New Delhi, http://nbaindia.org/uploaded/pdf/Gazette_Notification_of_ABS_Guidlines.pdf.

National Biodiversity Authority (2017):Operational Guidelines to the State Biodiversity Boards for Processing of Applications for Access to Biological Resources received under section 7 of the Biological Diversity Act, 2002,” Chennai, http://nbaindia.org/uploaded/pdf/Guidelines_for_Processing_ABSapplicatio....

Prathapan, Divakaran et al (2018): “When the Cure Kills: CBD Limits Biodiversity Research,” Science, Vol 360, Issue 6396, pp 1405–06.

Sarji, Mridula and Balakrishna Pispupati (2018): “Good Intentions Poor Understandings: The Case of India’s Biological Diversity Act (2002),” Fledge, India, http://fledgein.org/wp-content/uploads/2018/04/Good-Intentions-Poor-Unde....

Secretariat to Convention on Biological Diversity (2011): “Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilisation to the Convention on Biological Diversity,” Montreal, https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf.

United Nations (1992): “Convention on Biological Diversity,” https://www.cbd.int/doc/legal/cbd-en.pdf.

Updated On : 2nd Nov, 2018

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