THE CONVENTION ON BIOLOGICAL DIVERSITY: MAIN ASPECTS AND A BRIEF NEGOTIATING HISTORY

An important concern in the area of environment has been that global biodiversity (including genetic resources) is being depleted over time and hence a need to conserve and use it in a sustainable manner has been emphasized. Biodiversity is valued for maintaining the possibility of responding to new situations that may arise, for instance, in the area of agriculture and medicine, and because of its links to the sustainability of certain ecosystems. The initial response of the international community to the threat of genetic erosion was to build a network of "gene banks" where genetic materials, for example, seeds of abandoned varieties, could be stored and conserved ex situ. However, this method of conservation led to some loss of viability and of characteristics and, over time, the focus has changed towards in-situ conservation of biodiversity. Therefore, incentives for conserving and sustaining animal and plant biodiversity in the natural habitats have been increasingly emphasized. For example, farmers and local communities are now being encouraged to conserve traditional plant varieties on-farm or in situ.

5. The Biodiversity Convention was negotiated under the auspices of the United Nations Environment Programme ("UNEP") and was opened for signature at the United Nations Conference on Environment and Development in 1992. The Convention came into force on 29 December 1993. Countries that have signed or ratified the Convention are listed in Annex 2.

6. The Biodiversity Convention operates at three levels, i.e. genes, species, and ecosystems, and extends to all genetic resources, namely, plant, animal and microbial. It affirms that the conservation of biodiversity is "a common concern of humankind", and that States have sovereign rights over the biological resources in their territories. Under the Biodiversity Convention, States are responsible for conserving their biological diversity and for using it in a sustainable manner. Access to a Party's genetic resources must be on mutually agreed terms and on the basis of prior informed consent of the Party providing the resources. The objectives of the Biodiversity Convention are "the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising from the use 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 Biodiversity Convention provides for sharing research and development activities, benefits from the results of research and development, and commercial use of these results on mutually agreed terms. Access to or transfer of technology has to be provided in line with the provisions mentioned below, and as far as possible and as appropriate, incentives have to be provided to preserve genetic diversity. Similarly, in order to preserve and make sustainable use of biodiversity, the Convention provides for increased encouragement and interaction with regard to information, research, training, public education and awareness, and technical and scientific cooperation. With regard to several aspects including, inter alia, sharing in research and development, in the benefits of the results of research and development and of the commercial application of these results, such sharing has to be on mutually agreed terms.

7. In the negotiation of the Biodiversity Convention, issues related to IPRs were important in the context of provisions dealing with access to and transfer of technology (Article 16 of the Convention); in the Biodiversity Convention, the term "technology" includes biotechnology, and covers technologies that assist further conservation and sustainable use of genetic resources as well as technologies that do not cause significant damage to the environment and result from the use of genetic resources to which access is provided by Contracting Parties.

Relevant features of the Biodiversity Convention

8. The principles of the Convention are that "States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction" (Article 3). The role of indigenous and local communities in conserving biodiversity is recognized in the preamble; the importance of maintaining their knowledge and practices relevant to the conservation of biodiversity and the sustainable use of its components is also recognized, as is the need to encourage equitable sharing of benefits derived from the use of their knowledge, innovations and practices (Articles 8(j) and 10(c)). Identification and monitoring of biodiversity is viewed as an ongoing process involving development of the capacity of the Parties to fulfil the objectives on a long term and sustainable basis (Article 7). The Biodiversity Convention provides that, as far as possible and as appropriate, incentives have to be provided for the conservation and sustainable use of components of biodiversity (Article 11). In order to preserve and make sustainable use of biodiversity, the Convention provides for increasing encouragement and interaction with regard to information, research, training, public education and awareness, and technical and scientific cooperation (Articles 12, 13, 14, 17 and 18). Article 18.3 provides that the Contracting Parties have to determine at their first meeting how to establish a clearing-house mechanism to promote and facilitate technical and scientific cooperation.

9. The Biodiversity Convention applies to in situ and ex situ genetic resources acquired in accordance with the Convention, but not those taken and deposited in gene-banks prior to the Convention's entry into force. It emphasises in-situ conservation (Article 8). Ex-situ conservation measures are called for principally to complement in-situ conservation (Article 9). Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with national governments and is subject to national legislation (Article 15.1). However, each Party to the Biodiversity Convention must endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Parties and must not impose restrictions that run counter to the objectives of the Biodiversity Convention (Article 15.2). Where access to genetic resources is granted, it has to be on mutually agreed terms and be subject to prior informed consent of the Party providing the resources, unless otherwise determined by that Party (Articles 15.4 and 15.5). Genetic resources provided by any Party to the Biodiversity Convention are only those resources that are provided by Parties which are countries of origin of those resources or by Parties that have acquired the genetic resources in accordance with the Convention (Article 15.3). For those Parties providing access to genetic resources, the benefits include possibility of participation in scientific research based on the genetic resource supplied (Articles 15.6), of sharing results of research and development and benefits arising from commercial and other utilization of genetic resources on mutually agreed terms (Article 15.7), of participation in biotechnological research activities based on those genetic resources (Articles 19.1), and priority access on a fair and equitable basis to the results and benefits arising from biotechnologies based upon those genetic resources, on mutually agreed terms (Article 19.2).

10. Access to and transfer of technology is addressed by Article 16. Intellectual property rights are explicitly mentioned in the second, third and fifth paragraphs of Article 16. This Article was heavily negotiated and its text reads as follows:

"[16.]1. Each Contracting Party, recognizing that technology includes biotechnology, and that both access to and transfer of technology among Contracting Parties are essential elements for the attainment of the objectives of this Convention, undertakes subject to the provisions of this Article to provide and/or facilitate access for and transfer to other Contracting Parties of 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.

[16.]2. Access to and transfer of technology referred to in paragraph 1 above to developing countries shall be provided and/or facilitated under fair and most favourable terms, and, where necessary, in accordance with the financial mechanism established by Articles 20 and 21. In the case of technology subject to patents and other intellectual property rights, such access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights. The application of this paragraph shall be consistent with paragraphs 3, 4 and 5 below.

[16.]3. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that Contracting Parties, in particular those that are developing countries, which provide genetic resources are provided access to and transfer of technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights, where necessary, through the provisions of Articles 20 and 21 and in accordance with international law and consistent with paragraphs 4 and 5 below.

[16.]4. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that the private sector facilitates access to joint development and transfer of technology referred to in paragraph 1 above for the benefit of both governmental institutions and the private sector of developing countries and in this regard shall abide by the obligations included in paragraphs 1, 2 and 3 above.

[16.]5. The Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives."

11. Article 19 addresses handling of biotechnology (including biosafety aspects), access to information and research and distribution of benefits of biotechnology. Under Article 20, new and additional financial resources are to be provided to developing countries to enable them to meet the agreed full incremental costs to them of the measures needed to implement the Biodiversity Convention's obligations. The mechanism for providing financial resources to developing country Parties is set out in Article 21. The mechanism will operate under the authority of the Conference of the Parties (established under Article 23) to which it will be directly accountable, and funds will be provided on a grant or concessional basis. Article 25 establishes a subsidiary body on scientific, technical and technological advice for timely advice relating to the implementation of the Biodiversity Convention.

12. Regarding the relationship of the Biodiversity Convention to other international conventions, Article 22 states that the "provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity [and] ... Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea."

13. Resolution Three of the Nairobi Final Act of the Conference for the Adoption of the Agreed Text of the Convention on Biological Diversity (22 May 1992) identified the need to seek solutions to some unresolved issues, e.g. farmers' rights and access to ex-situ collections not acquired in accordance with the Biodiversity Convention.

Biodiversity Convention

29. The first meeting of the Conference of the Parties to the Biodiversity Convention took place in Nassau (Bahamas) from 28 November to 9 December 1994. Under Article 25 of the Convention, the Conference of the Parties established a subsidiary body on scientific, technical and technological advice. The first meeting of this body will be in Paris on 4 to 8 September 1995. The provisional agenda for that meeting includes, among others, identification of ways and means to promote and facilitate access to and transfer and development of technologies as envisaged in Articles 16 and 18 of the Biodiversity Convention. The Conference of the Parties has also decided to establish a clearing-house mechanism for technical and scientific cooperation under Article 18.3 of the Convention.

30. Under it medium term work programme (1995 to 1997), the Conference of the Parties to the Biodiversity Convention at its second meeting may consider, inter alia, the following tasks: "to compile existing legislation, administrative and policy information on access to genetic resources and the equitable sharing of benefits derived from their use; to compile information provided by Governments as well as relevant reports from appropriate international organizations regarding policy, legislative, or administrative measures related to intellectual property rights as provided in Article 16 of the Convention and to access to and transfer of technology that makes use of genetic resources; to consider ways to promote and facilitate access to and transfer and development of technology, as envisaged in Articles 16 and 18 of the Convention".

31. In 1996, the third meeting of the Conference of the Parties may consider aspects including "to compile the views of Parties on possible options for developing national legislative, administrative or policy measures, as appropriate, to implement Article 15; [and] to consider ways to promote and facilitate access to and transfer and development of technology, as envisaged by Articles 16 and 18 of the Convention."

32. The Conference of the Parties to the Convention have established a group of experts to examine the need for and modalities of a protocol on biosafety. UNEP, UNIDO, WHO and FAO have been asked to work with the Secretariat of the Biodiversity Convention in this context. The group of experts met from 1 to 5 May 1995, and a meeting of an ad hoc group of experts will take place from 24 to 28 July 1995 to advise the Conference of the Parties on this issue