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 The Biodiversity Convention: More losers than winners
By
H.K. Jain
 
 
 
Keywords:  Access to genetic resources; Intellectual property rights; United Nations Conference for Environment and Development (UNCED).
Correct citation: Jain, H.K. (1994), "The Biodiversity Convention: More losers than winners." Biotechnology and Development Monitor, No. 21, p. 24.

The most important of the provisions of the UNCED Convention on Biological Diversity, and one which has received the greatest attention, relates to the control of and access to plant genetic resources. The Convention lays down that the plant genetic resources are the national heritage of the country in whose territory they are found and has placed them under the sovereign control of individual states. Thus, access of other states to plant genetic resources will have to be negotiated on mutually agreed terms. The Convention also calls for the results of research and development, and the benefits arising from the commercial and other utilization of plant genetic resources, to be shared in a fair and equitable way with the country which provided these resources in the first place.

The great movement of plant genetic resources for millennia has led to the concept that these resources are a common heritage of mankind. The FAO International Undertaking formally adopted this concept, stipulating that genetic resources should be explored, collected, conserved, evaluated, utilized and made available freely for plant breeding and other scientific purposes.
Although the article on free availability was later extended with the provision excluding use 'free of charge', the norm of free availability has been instrumental in exploring the vast genetic diversity in the form of land races and local cultivars which increasingly is threatened with the advent of high yielding varieties, within and outside the UN.
If the principle of free exchange has served mankind so well, why is the common heritage concept now being discarded in favour of the notion of sovereign control? The answer is to be found in the distrust of many developing countries arising out of recent proposals relating to intellectual property protection. Many of these countries have felt that it is not fair that private seed companies in the developed countries should have free access to their plant genetic resources, use them as raw material for evolving improved varieties, and later market them with intellectual property protection in the form of industrial patents. Patents of this kind for transgenic and other varieties would present several problems for farmers in the developing countries, especially the stipulation that they cannot save the harvested seed of a protected variety for planting the next crop.

It remains doubtful that the concept of sovereign control of plant genetic resources, their negotiated access and the proposed sharing of benefits will contribute much to the overall objective of the Convention, which is conservation of genetic diversity and its sustainable use. It will contribute even less to the development of world agriculture. The motivation for conservation has to come from the realisation that first and foremost it is in the interest of the country that the genetic diversity found in its territory is not eroded. Also, as world population continues to multiply, it will become increasingly important to identify new genetic variability for higher crop yields and to make the agricultural production process more efficient in terms of the energy input/output ratio. This will require a great deal of international co­operation in research, including free exchange of plant genetic resources and new technologies. No single country has the scientific and other resources to achieve these major objectives of future agriculture on its own.

As regards to patents, those who advocate them for transgenic varieties ignore the fact that biotechnologists producing such varieties often use materials and techniques created by publically­funded research. Thus the recombinant DNA technology is the end product of a large number of major discoveries in biological and analytical sciences during the past 40 years. The legal criteria of novelty and non­obviousness could become even harder to satisfy as advances in molecular biology continue at a rapid pace. A recent editorial in Nature pointed out that the techniques employed in developing transgenic plants should become commonplace and routine practice within a few years (Nature 366:192).

More than all this, the contribution of generations of farmers in selecting plants for higher productivity and better quality will have to be considered while reviewing applications for patents. Neither the classical nor the modern methods of plant breeding would yield many useful results in the absence of this solid foundation laid by discerning farmers following domestication of crop plants.
It would appear that the countries which favour the concept of intellectual property protection in the form of industrial patents for crop varieties have not thought through the full implications of this practice. They do not appear to recognize that the short term gains which they would derive from grants of patents ignoring the above considerations, will be far outweighed by the loss which world agriculture would suffer through limited access to genetic resources.
With the replacement of the concept of common heritage through national sovereignty and with the institution of patents for improved plant varieties, hardly any country gains. The loser will be world agriculture.
H.K. Jain

H.K. Jain is an emeritus scientist of the Council of Scientific and Industrial Research (New Delhi, India), and former director of the Indian Agricultural Research Institute.



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