1. INTRODUCTION1.1 BIODIVERSITYBiodiversity or biological diversity - is the term given to the variety of life on earth. It includes the habitats and ecosystems which support this life and how life-forms interact with each other and the rest of the environment. Biodiversity covers plants, animals and micro-organisms both on land and in water. It relates to both wildlife and domesticated crops and animals. The biological diversity we see today is the result of millions of years of evolution Biodiversity provides humans with food, fresh water, fuel, building materials and even the resources used to develop most modern prescription drugs. For this reason, biodiversity can be considered as thevery raw material that sustains life on earth. Many industries, including forestry, fisheries, andagriculture are sustained by Irelands biodiversity and the balanced development of these industries is dependent on the sustainable use of these biological resources.

1.2 CONVENTION ON BIOLOGICAL DIVERSITYThe UN Convention on Biological Diversity (CBD) resulted from the Earth Summit held in 1992 in Rio de Janeiro. Ireland ratified the Convention in 1996. The CBD is pre-eminent amongst nature/biodiversity related Conventions, both in terms of its widespread support (188 countries plus the EU are Parties) and its comprehensive scope.The Convention has three objectives, the conservation of biological diversity, the sustainable use of its components and the equitable sharing of the benefits arising out of the utilisation of genetic resources.By becoming a Party to the Convention, Ireland has committed itself to working at national level and to international measures to achieve these objectives. The Convention is aiming to secure a significant reduction in the current rate of loss of biodiversity, across the globe, by 2010. The CBD has developed seven thematic programmes of work aimed at meeting the 2010 target. These thematic programmes are: Agricultural Biodiversity; Dry and Sub-humid Lands Biodiversity; Forest Biodiversity; Inland Waters Biodiversity; Island Biodiversity; Marine and Coastal Biodiversity; and Mountain Biodiversity.All parties to the Convention are required to develop national actions to achieve the implementation of these work programmes and must report periodically on progress in this regard.

1.3 TRADE AND BIODIVERSITY, AND RELATED ISSUES International trade has conventionally been destructive of biodiversity and peoples livelihoods, by encouraging over-exploitation of natural resources, creating pollution through increasing transportation as well as habitat loss by infrastructure development. The World Trade Organization needs to focus on trade matters without linking trade with social issues. India is opposed to multilateral rules on investment and competition in the WTO, as well as in linking trade with social issues. There should be international recognition of effective and credible suigeneris systems of protection of biodiversity and the associated traditional knowledge, including by way of prior informed consent and benefit sharing for traditional knowledge used by patent applicants and others. International Property Right (IPR) protection should not displace the developing countries as competitors, and transform them into mere suppliers of raw materials. Patenting of biological resources must not deny or restrict developing countries access to their own biological resources. International cooperation and initiatives are required to strengthen the monitoring of bio-piracy and to establish international mechanisms to ensure equitable sharing of benefits from the use of biological and genetic resources.

1.4 ECONOMICS, TRADE AND INCENTIVE MEASURESBiodiversity generates and helps to maintain the supply of a myriad of goods and services that are essential for human well-being and economic development. Agriculture, for example, would simply not be possible without biological diversity and its contribution to the development of seed varieties and the breeding of domesticated livestock, as well as through the numerous species interacting with agriculture, such as pollinators or symbionts.

Biodiversity is under attack by a number of powerful external forces. From an economic viewpoint, perhaps the most dangerous force is simple neglect: an under-estimation of the value of biodiversity, an ignorance of its essential role in maintaining the foundations for human well-being and economic growth alike.

It is well known among economists that markets alone do not assign appropriate monetary value to biodiversity. Hence, without policy intervention, market prices do not properly reflect the losses to society as a whole arising from biodiversity degradation. This market failure leads individuals, companies and governments to use biodiversity in an unsustainable manner.

The Conventions economic work focuses on two areas. First, it aims to elicit the value of biodiversity through appropriate valuation tools and to "internalize" this value into market prices through the use of appropriate incentive measures. Such measures can include, for instance, payments for private conservation efforts, fees on biodiversity-degrading activities or transferable quotas for biological resources. As an important milestone, a set of proposals was adopted under the Convention to provide guidance to governments on how to design and implement such incentive measures.

A related objective is addressing policies or practices that generate "perverse" incentives, that is, incentives that accelerate the loss of biodiversity. Examples include those public subsidies that support unsustainable farming, forestry or fishery activities. The Conference of the Parties to the Convention encouraged Parties and other governments to identify such perverse incentives and consider the removal or mitigation of the negative effects on biological diversity.

Many of the goods generated through biodiversity are the subject of international trade, either as commodities or in manufactured goods. In addition, biodiversity plays an important role in poverty alleviation and, hence, wealth creation. It is therefore evident that the maintenance of biodiversity and the promotion of trade are interdependent. To address this interdependence forms the second area of economic work under the Convention.

While the Convention does not require measures that are directly related to international trade, there is a close relationship between many of its provisions as well as those of its Biosafety Protocol and the provisions of the multilateral trade agreements of the World Trade Organization (WTO). For instance, the Parties to the Convention have emphasized the interrelationship between the Convention and the provisions of the WTOs Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs), and the need to further explore this interrelationship. Similarly, Parties have underlined the relationship between the Biosafety Protocol and the provisions of the WTO Agreements on Technical Barriers to Trade (TBT) and Application of Sanitary and Phytosanitary Measures (SPS).

The trade-related work of the Convention is part of a broader effort of the international community to ensure harmony and mutual supportiveness between trade rules and international environmental law, in order to both maintain biodiversity and promote international trade.

1.5 PROGRAMME OF WORK ON INCENTIVE MEASURESIn Article 11 of the Convention, the international community acknowledged the importance of incentive measures in achieving the conservation and sustainable use of biological diversity. In 2000, at its fifth meeting, the Conference of the Parties to the Convention adopted a programme of work on incentive measures which spells out a number of targets as well as the activities required from Parties, other governments, international organizations and the Secretariat to achieve these targets. The expected results of the work programme are: a. The assessment of representative existing incentive measures, review of case studies, identification of new opportunities for incentive measures, and dissemination of information, through the clearing-house mechanism and other means, as appropriate; b. The development of methods to promote information on biodiversity in consumer decisions, for example through eco-labeling, if appropriate; c. The assessment, as appropriate and applicable to the circumstances of Parties, of the values of biodiversity, in order to better internalize these values in public policy initiatives and private-sector decisions; d. A consideration of biodiversity concern in liability schemes; e. The creation of incentives for integration of biodiversity concerns in all sectors. Importantly, the Conference of the Parties decided to integrate actions on incentive measures in thematic work programmes and to ensure synergy with activities on sustainable use, noting that incentive measures are essential elements in developing effective approaches to conservation and sustainable use of biological diversity especially at the level of local communities. In order to achieve these and other results of the work programme, the Conference of the Parties requested the Executive Secretary to collaborate with relevant organizations, such as the Food and Agricultural Organization of the United Nations, the Organization of Economic Cooperation and Development, the United Nations Conference on Trade and Development, the United Nations Development Programme, and IUCN-The World Conservation Union, in order to engage in a coordinated effort. The programme of work is scheduled for in-depth review by the Conference of the Parties at its ninth meeting, in 2008.1.5 BIODIVERSITY AND INTERNATIONAL TRADEThe trade-related work under the Convention captures the different aspects of the complex relationship between international trade and the objectives and provisions of the Convention. The production of value-added goods and services derived from biodiversity, both for domestic and for international markets (Biotrade) may generate incentives for the conservation and sustainable use of biodiversity. Accordingly, a number of thematic programmes of work under the Convention call for the increased marketing of products derived from sustainable use (see pages on market creation for further information). The Conference of the Parties adopted a provisional framework of goals and targets to enhance the evaluation of achievements and progress in the implementation of the Strategic Plan of the Convention. Target 4.3 of this framework calls for no species of wild flora and fauna to be endangered by international trade. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is the key partner in implementing this target, and both Conventions are cooperating closely to implement this target, including through the liaison group of biodiversity-related Conventions. While the Convention on Biological Diversity does not require measures that are directly related to international trade, there is a close relationship between many of its provisions as well as those of its Biosafety Protocol and the multilateral rules and provisions of the World Trade Organization (WTO). For instance, the Parties to the Convention have emphasized the interrelationship between the Convention and the provisions of the WTOs Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs), and the need to further explore this interrelationship. Similarly, Parties have underlined the relationship between the Biosafety Protocol and the provisions of the WTO Agreements on Technical Barriers to Trade (TBT) and Application of Sanitary and Phytosanitary Measures (SPS). Accordingly, the Conference of the Parties requested the Executive Secretary to closely interact and cooperate with the relevant Committees of the WTO as well as with its Secretariat on these issues of mutual interest, and to also examine the impact of trade liberalization on biodiversity.

1.6 BIODIVERSITY AND THE EMERGING WTO REGIMESGlobal biodiversity is a vast and often undervalued resource. Encompassing every form of life from the finest microbes to the mightiest beast, biodiversity is the variety and variability by all plants, animals and microorganisms along with the ecological processes/complexes of which they are a part. The whole system is referred as biosphere. Biodiversity is autosustainable, self-generating if there is no natural and/or man made perturbations. The only external input to the biosphere is solar energy which fuels the system as a whole. Biological diversity cannot exist without the support of ecological process (such as photosynthesis, water, and number of other biogeochemical cycles and soil formation) and organic evolution (mutation, recombination and natural selection). The latter lead to speciation, competition, predation/parasitism, mutualism, co-adaptation and coevolution and finally the survival of the fittest.There are two main functions of biodiversity. Firstly, on it depends the stability of the biosphere, which in turn leads to stability of climate, water, soil, chemistry of air and overall health of the biosphere. Secondly biodiversity is the source from which human race depends for food, fodder, fuel, fibre, shelter, medicine and raw materials for industrial goods to meet his ever changing and ever increasing demand. The warm and humid tropics which are incidentally where the developing countries are located are richer in biodiversity. But it is the biodiversity poor nations of temperate region with their superior technological capability and managerial ability who are using the biodiversity for their best advantage and making the biodiversity rich nations poor. It is certainly a strange paradox.The extent and nature of biodiversity on earth has not remained static. In the geological history of the earth there have been both evolution and diversification, and at least five major episodes of mass extinction of species due to natural perturbations occurred in the geological past. However, today's extinction of biodiversity can be traced to perturbations emanating from the action of human race. Human interference leading to large scale biodepletion began with industrialization, threatening the very survival of human race. The realization of this impending danger led to the world community to meet at Stockholm in 1972 and discuss about human environment. This ultimately led to the Earth Summit at Rio in 1992 wherein the countries of the world resolved to sign the global treaty "Convention on Biological Diversity" (CBD). Side by side there was another treaty piloted by the World Trade Organization (WTO). Trade Related. Intellectual Property Rights (TRIPs) evolved under the GATT agreement of WTO for regulating international trade and monopolistic rights called Intellectual Property Rights (IPR).CBD marks an historic commitment by nations of the world to conserve biological diversity, to use biological resources sustainable and share equitably the benefits arising from the use of genetic resources. It is the first global agreement to address comprehensively all aspects of biological diversity-genetic resources, species and ecosystems. Genetic resources have been traded across the world for centuries, though rarely to the advantage of biodiversity rich nations. CBD has now created a new international legal framework which regulates access to genetic resources and promote fair and equitable sharing of benefits arising from their use. CBD reaffirms the nation's sovereignty over genetic resources and stipulates a framework by which parties can assert their sovereign rights and demand a fair and equitable share of benefits. Article 8 (j) of CBD further stipulates an equitable sharing of the benefits arising from the utilization of traditional knowledge, innovations and practice. Intellectual Property Rights (IPRs) are essentially a concept and practice quite alien toihe third world. A number of legal rights have developed in various jurisdictions in the west during the past 100 yearsto allow ownership of or control over intangible products. These rights known collectively as IPR, have defined "Property Rights" "covering all things which emanate from the exercise of human brain". Historically it is a practice developed in the industrialized societies of the west to protect the product of human creativity, so as to provide economic incentive to those engaged in such creation. The products of such creations are recognized as property. 'IPR' include patents, Plant Breeders Rights (PBRs), copy rights and trade secrets. A patent is a legal certificate that gives an inventor exclusive rights and prevent others from producing, using, selling or importing the invention for a fixed period (usually 17-20 years). Legal action can be taken against those who infringe the patent by copying the invention or selling it without permission from patent owner. Patents can be bought, sold, hired or licensed.Originally biological products and processes were not eligible for intellectual property protection, but the multinational seed and drug companies in the developed countries have lobbied and are now successful in extending the IPR rights over life forms. This commercialization and the accompanying assignment of monetary value over life forms, undermines the CBD's ethical approach towards conservation, which is based on the intrinsic value of all components of biological diversity. Article 27(3) (6) of the TRIPs text of the draft GATT agreement appears to exclude plants and animals from being patented. However, the same phrase in the US patent legislation has not prevented the US Patent and Trade mark office and courts of law from allowing patenting of more and more life forms. The first patent on life was recognized by US Supreme Court in the Chakrabarty Case in 1980 when genetically modified Pseudomonas bacteria was accepted by the court as an invention of the Scientist and, therefore, patentable. The slippery slope towards ownership of all life forms was thus created by this US Supreme Court decision. In 1988 the first patent of a living animal (a genetically engineered mouse for cancer research) was approved for patent. There are over 190 genetically engineered animals including cows, pigs, mice and fish awaiting patenting in US. Patenting human gene is also in the horizon unless the international community, both citizens and governments, start rejecting it.Attempts by developing countries to revise the international regime for IPRs have been completely displaced by the successful efforts of the developed countries to include IPRs in the agenda for the Uruguay Round GATT. This has profound implications. A universal set of norms based on the current levels of protection granted in the most technologically advanced countries will replace the present system which allows freedom of each country to adopt, within certain limits, the regime of protection that it deems best suited to its own development needs and to the value of each society. To compound this problem new trade related patentable rights have been created, including property rights_ in biodiversity. This threatens the use and conservation of biological diversity and particularly affect the poor, biodiversity rich, nations. Implementation of CBD in its letter and spirit is the only solace for the world to pave the way for an equitable North-South relation and guard against the adverse ecological, social and ethical impacts of technology, especially biotechnology. It will all rest upon the outcome of the negotiations among the parties to be held sometime later in this year.

2. BIODIVERSITY TREATY AND TRADE (BIODIV)

2.1. THE ISSUE The Convention on Biological Diversity was one of two agreements signed at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro from June 3-14, 1992. This agreement was unique in that its objective was to protect all species and ecosystems in the world as opposed to specified endangered species. In the convention, biological diversity is defined as: the variability among living organisms from all sources including, among other things, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems. The objectives of the convention are as follows: the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of 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 point of contention arising out of this convention centered on the transfer of biotechnology and the subsequent protection of intellectual property rights.

2.2. DESCRIPTION Although the conservation of biological diversity has only been in the public consciousness for less than two decades, scientists have been concerned about the issue for more than half a century. Soviet Academician Nikolai Ivanovich Vavilov, one of the earliest advocates of biological diversity and an agronomist and geneticist, pointed out the great importance of conserving biological diversity in plant life. In 1932 during the 6th International Congress of Genetics held at Ithaca, New York, the Soviet pioneer pointed out that: "The growing needs of civilized man and the development of industry make the introduction of new plants necessary. The vast resources of wild species, especially in the tropics, have been practically untouched by investigation". This early notion of biodiversity as a valuable resource remains. What has been added now to the issue is the absolute and daunting scarcity of this resource which is life sustaining to people and to the earth. The great importance and indeed necessity of biodiversity cannot be underemphasized. Biodiversity is essential to agriculture, development of medicines, clean water, flood control, resource-based industries such as fisheries, and maintaining ecological balance. For example, it is estimated that there are between 5 million and 30 million species on this planet of which only 1.7 million have been studied and classified. The scientific projections of species loss numbering in the hundreds of thousands by the year 2000 and the most visible image of the burning tropical rain forests, the home of over half of all species on earth. In 1987 the United Nations Environment Programme first called on the governments of the world to consider a legal instrument to conserve biological diversity and the sustainable use ofbiological resources. The Ad Hoc Working Group of Experts on Biological Diversity was established to research and analyze the most efficient ways in which to save our planet's biosphere. The UNEP then established the Intergovernmental Negotiating Committee for a Convention on Biological Diversity in order to negotiate and draft an agreement all nations could agree to. The final convention was adopted on May 22 in Nairobi just prior to the Earth Summit. The convention provides for: 1. adoption of national regulations to conserve biological resources, 2. imposition of legal responsibility on countries for the environmental impacts of their private companies in other countries. 3. technology transfer on concessional terms, 4. regulation of biotechnology firms, and 5. access to and ownership of genetic material, 6. compensation to developing countries for extraction of their genetic materials.

Overall, there are three main objectives to the convention: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable distribution of benefits derived from "genetic resources" (defined as the diverse gene pool of life on earth). All contracting parties to the convention are thus required to enact regulations in order to conserve biological diversity for both present and future generations including the enactment of laws similar to the Endangered Species Act of the United States. All parties to the convention are also to promote "environmentally sound and sustainable development in areas adjacent to protected areas with a view to further protection of these areas." Another provision was intended to ensure bio-safety by controlling the risks associated with the use and release of genetically modified organisms. This byproduct of biotechnology could have adverse effects on biodiversity. The promotion and encouragement of public education and training were other dominant themes in the treaty. The importance of traditional knowledge of indigenous peoples regarding biodiversity and its uses was emphasized as well. Article 8(j) provides that traditional knowledge, innovations, and practices of indigenous peoples relevant to the conservation and sustainable use of biodiversity must be preserved, protected, and maintained. Much of the convention focused on providing help to developing countries who had special needs. The help was to be provided by the industrialized countries through training, technology access and transfer, and funding. It is this theme of the industrialized nations paying for these ambitious endeavors which has caused most of the controversy over this significant convention. The most conflictual segment of the convention, especially in the eyes of the United States, centered on the connection between the environmental aspects of the treaty and its trade impacts. The key trade implications of the convention may be summarized with one word; biotechnology, which has been seen by some to become too closely associated with biodiversity. It is interesting to note for example, that the terms in the convention and in general discussion have obtained an economic base, some say to the detriment of the overall objective of the convention. For example, some of the terms generally used throughout the document include: genetic resources, biological resources, biotechnology, country of origin of genetic resources, country providing genetic resources and regional economic integration organization. Yet, it is persuasively argued that only by couching this serious issue in economic terms will it garner the attention and support it deserves. Biotechnology, as defined in the treaty, is any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use. The convention states that "Each contracting party...undertakes...to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that...make use of genetic resources and do not cause significant damage to the environment." Furthermore, technology transfer to developing countries must be "under fair and most favorable terms," whileproviding for "adequate and effective protection of intellectual property rights" (Article 16). It is this delicate balance which is at the center of the controversy. It is the fear, particularly of the Bush Administration at the time of the signing, that U.S. businesses would be harmed by the convention, particularly the booming U.S. biotechnology firms. Other provisions of the treaty protecting genetic resources and underscoring the sovereign ownership of such resources also made the U.S. biotechnology and drug industries hesitant. Several European nations including the United Kingdom as well as Japan issued interpretive statements regarding these sensitive issues which directly affected their trade and general economies. Funding too is always an issue of controversy. The Global Environment Facility (GEF) is the current financing institution for the implementation of the convention. The industrialized nations are to provide new and additional funding in order for the developing nations to be able to effectively meet the provisions. In addition to the GEF, a Secretariat has been established for administrative purposes as well as a scientific and technological advisory committee. A Conference of the Parties will meet regularly to monitor compliance and implementation.

2.3. DISCOURSE AND STATUS: AGREEMENT AND COMPLETE As of September 1994, 167 countries had signed the convention and 89 states had ratified it. Thirty signatories must have ratified the convention before it entered into force. Thus, for the ratifiers, the convention is in force. 178 nations participated at the UNCED in Rio; thus, a little under half of the states present actually ratified the convention. While this is a non-self executing convention, it may take longer for national legislatures to approve such a treaty. This is because the convention requires implementing legislation. Overall, this is a completed negotiated agreement; however, the success of its implementation is won only with the full or near full participation of the nations of the world. Of particular importance is the participation of the major industrialized nations like the United States not only because of their wealth of financial resources, but because of their wealth of technological resources.

2.4. FORUM AND SCOPE: UN AND MULTILATERAL The United Nations Conference On Environment and Development was held in Rio de Janeiro from June 3-14, 1992. The Rio Earth Summit was the largest international conference ever held with over 100 heads of state or governments in attendance, 8,000 delegates, 9,000 members of the press, and 3,000 accredited representatives of NGO's. It was in this multilateral setting that the Convention on Biological Diversity was signed

2.5. TYPES OF MEASURE: MANY Possible related measures include: licensing (LICEN), regulatory standards (REGSTD), and intellectual property rights (IPROP), and administration (ADMIN). Licensing is the tool used to insure intellectual property rights. Since this is an issue of such great importance to the industrialized nations, this will play a great role in the implementation of the agreement's provisions dealing with technology transfer and the sharing of benefits. Regulatory standards will be necessary in order to effectively protect endangered species and maintain fragile ecosystems. Regulations in fact will be the most visible implementation through the local and national laws which will be created. The United States in fact is already in compliance with the convention, in light of the environmental regulations enacted over the past decade. Developing and underdeveloped nations in the South, who own the world's greatest wealth of biological resources now, under the convention, may establish regulations governing access to their resources. In a statement issued by the Patent and Trademark Office of the U.S. Department of Commerce, the Agreement on Trade-related Aspects of Intellectual Property, concluded at the Uruguay Round of GATT was stated to be in agreement with the Biodiversity Treaty. The denial of intellectual property rights or the inadequate protection of them was stated to be an "egregious burden to trade." The paper went on to state that: "improved protection of intellectual property will strengthen the economic incentives outlined in the Convention on Biological Diversity. Strong intellectual property systems facilitate research, development andcommercialization of new technologies. Global consistency in such systems will facilitate international cooperation and technology transfer." Furthermore, according to Commerce, by promoting intellectual property rights, "countries will establish market conditions that will encourage sound and sustainable commercial development of biodiversity."

2.6. DIRECT VS. INDIRECT IMPACT: INDIRECT The impact is indirect because regulations and agreements between states must first be enacted which will then have an impact on trade between contracting parties. Such environmental regulations and transfer agreements between countries take place"inside the border."

Trade Product Identification: MANY Biodiversity may be divided into three major groupings in terms of products or biological resources: (1) pharmaceutical, (2)genetic, and (3) agricultural. More specifically, biodiversityprovides us with food, fiber, medicines. Also, according to Tim Wirth in the Senate hearings on the convention, "biological materials are fundamental in our industrial processes and enable development of new products from the rapidly expanding field of biotechnology."

2.7. ECONOMIC DATA Pharmaceutical industry output: Plant species provide the active ingredient of an estimated 25 percent of the prescription drugs sold in the United States, with an annual market value well over $10 billion. Also, a number of important medical compounds have been developed from marine organisms. Sponges, for example, are the source of anti-viral drugs with annual sales of $50-$100 million. Discoveries from biodiversity have also been translated into savings on the health and productivity of the work force. For example, a bacteria discovered in Yellowstone's hot springs has permitted a dramatic reduction in time needed to analyze medical tests. The fantastic uses of biotechnology are best illustrated by the use of genetic diversity in plant breeding. U.S. wheat farmers are using wild strains from the Near East which are resistant to aphids and other pests. Economically speaking, experts have estimated that such uses of biodiversity have added a value of $3.2 billion to our $11 billion annual production of soybeans, and about $7 billion in added value to our $18 billion annual corn crop. 2.8. TRANS-BOUNDARY ISSUES: YES The main conflict surrounding the ratification of this convention is a trans-boundary issue between the industrialized nations of the North and the less developed nations of the South. The issue involves that of benefit sharing which as mentioned throughout this case seemingly conflicts with the protection of intellectual property rights. The convention, again in its wisdom and vision, has been able to attain equitable sharing and protection of IPRs. Essentially, under the convention, the South has more control over the use of its raw material, biological resources while the North maintains its ability to require the South to purchase licenses for its technology. This benefits sharing scheme is intended to facilitate equitable trade. A prime example of the potential success of such a plan is the Merck-INBio agreement as described by Dr. Walter Reid of WRI. A 1991 agreement between Merck Pharmaceuticals and the Costa Rican National Biodiversity Institute (INBio) under which Merck receives chemical extracts from INBio in return for an up-front payment, royalties, and technology transfer to the country. The benefits returning to the country all support conservation initiatives. Merck, Costa Rica, and biodiversity conservation all benefit from this business alliance premised on negotiated terms for exchange of financial, technological, and genetic resources. Other similar agreements have already been concluded and prove hopeful that this convention is mutually beneficial for both the North and South. See also Shaman Pharmaceuticals case forexample.

Rights: YES Many times the global ecology may be at odds with local ecology. This conflict can manifest itself in one of two ways. The local cultural tradition for harvesting resources may be at odds with a conservation decision made at a global level. Also, there exists the fundamental conflict which arises in the South when they are called to conserve their resources. They make the effective argument that their development demands an unfettered use of their natural endowments and furthermore, that the North was able to become the economic giant it is today because of its unrestricted exploitation of its resources and of the resources of the South as well. The writers of the Treaty were sensitive to these conflicts. There are several international treaties, both declaratory and legally binding, which spell out the rights of indigenous populations with regard to natural resources and development. For example, in the Draft Declaration on the Rights of Indigenous Peoples, paragraph 18, it is stated that, "Indigenous peoples have the right to the protection and where appropriate, the rehabilitation of the total environment and productive capacity of their lands and territories, and the right to adequate assistance including international cooperation to this end." The Convention on Biodiversity seeks to comply with these other treaties in the respect for these people's culture and traditional knowledge and experience.

3. TRIPS AND BIODIVERSITYIn the last decades there has been a distinct shift in the way biological resources are viewed. What was a natural resource, accessible to all, has now become an economic resource, to be privatised. In this process, public property jointly held and nurtured by communities, is converted to a private property owned by a few and withheld increasingly from the local communities.This shift can be seen in recent international and national developments. Two major international agreements, the Agreement on Trade-Related Intellectual Property Rights (TRIPS) of the WTO and the United Nations Convention on Biological Diversity(CBD), with mutually conflicting approaches, are now shaping the domestic regimes of member states with respect to biological resources and associated indigenous knowledge. The Agreement on TRIPS engenders privatisation of biological resources by allowing patents to be granted on biological materials and associated indigenous knowledge, and the CBD acknowledges that local communities have rights over bio resources and indigenous knowledge.Article 27.3(b) of TRIPS has brought biological resources under the purview of intellectual property rights, hence providing for private ownership over bio resources with exclusive commercial rights.Biological diversity has become the sought after raw material of the life sciences industry. Whilst corporations in the developed world have mastered the techniques of recombinant DNAtechnology, the raw matter is located principally in the tropical and semi-tropical countries ofthe developing South. Not only the resources, but the associated knowledge of their propertiesare located within indigenous communities.In order to gain access to biological resources, the life science corporations, through their governments, have extended the scope of intellectual property rights to biological materials at the global level. This development took place in the Uruguay GATT Round that began in 1986 and concluded in Marrakech in 1994. During this round, life forms and genetic resources were brought into the ambit of one system for intellectual property rights.TRIPS covers, amongst other things, copyright and related rights, trademarks such as the protection allowed to Champagne wine and Scotch whisky, industrial designs, patents and plant variety protection, layout-designs of integrated circuits used in electronics, protection of undisclosed information and trade secret and unfair competition.3.1 INTELLECTUAL PROPERTY RIGHTS OVER BIOLOGICAL MATERIALSThe key element of the TRIPS Agreements related to agriculture and food security is the requirement for WTO Members to make patents available for any inventions, whether products or processes, in all fields of technology without discrimination. One reason for greater interest in patents is the rapid development of biotechnology in agriculture. There are four options within Article 27.3 (b). Firstly, o allows patents on everything. This would include all materials and all forms of technology. Secondly, to exclude plants, animals and biological processes, but not plant varieties. This means that whereas naturally found plants, animals and the natural biological process by which they are created, could be excluded from patents, crop varieties could not. The third option is to exclude plants, animals and biological processes from patenting and to introduce a special sui generis for the protection of plant varieties. A sui generis system allows the country to create a system of their choice that would enable the minimum protection agreed to in the WTO. The final option is to exclude plants, animals and essentially biological processes from patenting but not plant varieties, and to provide a sui generis right. This last would mean that plant varieties could be patented or protected by an independently created sui generis system.Most developing countries have chosen option 3. A sui generis system of protection is one adapted to particular subject matter, and allows countries to make their own rules for protection of new plant varieties. One possible sui generis system likely to be recognised is the International Union for the Protection of New Varieties of Plants (UPOV) system. This was initially developed in Europe and has now been adopted by the industrialised countries. The UPOV system has undergone several changes after its formulation in 1961, but these have resulted in almost no concessions for farmers and breeders.Article 27.3(b) of TRIPs is perhaps the most controversial clause of the entire WTO agreement. It requires members to provide for the patenting of micro organisms and genetically engineered organisms ("non-biological and microbiological processes") and WTO members are now in the process of defining their positions regarding the future of the provisions. There are indications that a few members like the US, would like the sui generis option to be eliminated altogether, while most developing countries are preparing national legislation to implement it. There are proposals to treat UPOV as the only sui generis option for plant varieties. UPOV is not in the interest of developing countries since it does not have any rights for farmers. There is only one right, that granted to the breeder, which in todays context is increasingly the company. Patents on seeds would severely restrict the farmers access to them, since they would have to buy fresh seed for every sowing. Women would be particularly disadvantaged under UPOV since their access to their own seeds ensures that they can contribute to food and nutrition for the household.There are potential conflicts between TRIPs patenting regime and the Convention on Biological Diversity (CBD), as well as the International Treaty on Plant Genetic Resources (ITPGR) of the FAO. These conflicts are widely seen as more political than legal in nature, and the US government has made early implementation of TRIPs a top priority of its foreign policy. These matters are likely to emerge as matters of dispute under the WTO's dispute settlement system in the coming years.UPOV 1991 conditions will significantly diminish the farming community's capacity to be self sufficient in seed and self-reliant as agricultural producers. It promotes the interests of commercial plant breeders in the North rather than the farming communities. UPOV requires plant varieties to be "distinct" from other varieties, produce genetically "uniform" progeny, andremain genetically "stable" over generations. After the 1991 UPOV amendment, a new quality3"novelty"- has been added to the minimal characteristics required The uniformity requirementHas potential to contribute to genetic erosion. In addition, the cost of maintaining UPOV certification is beyond the means of most farmer-breeders. Although peasant farmers have also cultivated plant varieties expressing desirable traits over time, their varieties rarely meet the UPOV requirements list.These conditions for a Plant Breeders Right certificate under UPOV go contrary to the goal of enhancing genetic diversity. Furthermore, the kind of protection it grants is an exclusive monopoly right. This contrasts sharply with the broader goals of collective remuneration andbenefit-sharing expressed in a number of other global agreements.

3.2 UPOV IS AGAINST DEVELOPING COUNTRY INTERESTSA number of influential bodies, including the WTO itself, are pushing for a narrowing of the sui generis option to one legislative model provided by the UPOV. UPOV is not mentioned in the TRIPS Agreement. Independent legal and economic experts have reiterated that UPOV should not be accepted as an effective sui generis system for TRIPS and that there is ample scope for manoeuvre, flexibility and national discretion in interpreting the sui generis option. The UPOV system promotes commercially bred plant varieties for industrial agricultural systems. Under this system farmers have to pay royalties on seed and the seed sector becomes an investment opportunity for chemical and biotech concerns. Plants are bred to grow successfully with their chemical inputs or with their patented genes at the expense of more sustainable biodiverse systems. Since Plant Breeders Rights (PBRs) are only given for a variety that is genetically uniform they limit both what kind of seeds can be marketed and who can market them. UPOV automatically discourages genetically diverse and locally adapted seeds from the market and from the field.The impact of UPOV type regimes will be highly detrimental to developing country situations. Firstly, farmers who have contributed the varieties on which plant breeders base their own varieties would have no rights, only the breeders would. Secondly, the UPOV conditions are for industrial economies where only 2 to 5% of the population practices agriculture and there are no small and marginal farmers. UPOV laws advantage countries where agriculture is largely a commercial activity. For the majority of farmers in Asia, Africa and Latin America however, it is a livelihood.Applying the TRIPS framework to bio resources is against the interests of indigenous and farming women and men. Women are the most skilled in the use of bio resources for food, medicine and other uses, and use these resources to improve the health and nutrition status of their families, as well as to earn some income. The TRIPS Agreement does not recognise that local communities have any rights over bio resources and associated knowledge. It fails to acknowledge or protect farmers rights, explicitly recognised in the CBD and ITPGR. In addition, the TRIPS Agreement, unlike CBD or ITPGR, does not acknowledge the essential role of women in rural communities in conserving bio diversity. It does not make any provision to ensure benefit sharing from technology and innovation, or require any prior informed consent of the people (primarily women) whose knowledge is tapped for technological innovation.

3.3 IMPACT ON BIODIVERSITY AND COMMUNITIESBiodiversity is the basis of food and livelihood as well as human & animal health security forpoor and marginalised communities. To alter the dynamics of control and usage of biodiversitythrough IPR rules will further impoverish and marginalise local communities, and women willbe disadvantaged both in terms of their economic and decision making roles. IPR regimes on bioresources and the commercialisation of these for markets will result in resource depletion. The case of the Canadian farmer Percy Schmeiser and his run in with Monsanto, over an alleged violation of IPR shows the way IPR regimes are being implemented by corporations to establish monopolies. Monsanto sued Schmeiser for huge damages for violating its patent on Roundup Ready canola after specimens of the proprietary canola were found on Schmeisers property. Canola, is a cross pollinating crop so the likely source of the offending canola was pollen from a nearby Roundup ready field but the case demonstrates the extent to which MNCs will go to establish monopolies on bioresources. Such actions would have grave consequences in developing country situations since denying rights over vital resources would ultimately affect the communitys ability to survive.Commercial interests that target bio resources on a large scale for the market will threaten the resource base, and with it, the knowledge base developed around the bio resources. The impact on women and through them, families, will be immediate. There is a steady depletion of rare medicinal flora from the hill regions because of collections being conducted by pharmaceutical companies. A sub-species of Taxus baccata, the Himalayan Yew tree in the Himalayan region is facing near extinction thanks to over exploitation for its the cancer curing properties. Large areas of the Kumaon and Garhwal Himalayas in India have been stripped of medicinal plants by head loaders collecting for foreign and Indian companies. This devastation of flora means that women lose the resources they need for use in home remedies to treat their families and their livestock.Patents on seeds would take away the womens ability to breed new, locally adapted varieties for food, healing and rituals. This would strike at food and nutritional security of families and also at the socio-cultural identity of communities. Women have bred varieties for special uses integral to local food habits and cultural and religious practices. Some varieties are offered to the Gods at certain festivals. Still others play a role in rituals during marriage and death ceremonies.When patents are permitted, there is currently no requirement for disclosing the source of the plant material, nor the key information lead for the claimed invention, that is the indigenous knowledge of the characteristics, say of the particular medicinal plant. Biopiracy is a misappropriation of the intellectual property of local communities. In the case of the patent on turmeric, or neem, the knowledge of the wound healing property or the bactericidal property ofthe respective plants was the basis of the invention that was granted a patent by the US Patentand Trademark Office. The consequences could be twofold. Exercise of the patent in India could lead to corporate control over wound healing or antiseptic products derived from turmeric and neem. On the other hand if such products had export potential to the US, such an opportunity could be denied because the existing US patent could be used to block any imports.Whether in the field of medicinal plants or in agriculture, it seems clear that women will be excluded from the decision making process. They will have less say in what will be planted in the field because seed availability will increasingly shift to crops with a single dominant trait. Women are likely to have fewer options and less flexibility to use bioresources for multiple uses. Since participation in the cash economy to make up the loss in these sectors will either not be possible for women or place additional burdens on them, it is more likely that the ensuing deprivations will become permanent.

3.4 RESPONSE OF THE SOUTHIndia, Brazil, China, Cuba, Dominican Republic, Ecuador, Pakistan, Thailand, Venezuela, Zambia, and Zimbabwe have urged the TRIPS Council to include additional clauses in the TRIPS Agreement. These are to ensure that an applicant for a patent relating to biological materials or indigenous knowledge shall provide disclosure of the source and country of origin of the biological resources and of the indigenous knowledge used in the invention. The applicant would also have to provide evidence of prior informed consent and of fair and equitable benefit sharing under the relevant national regimes, These countries are also pushing for an international regime that grants protection to indigenous knowledge. Due to opposition from developed countries, particularly the US, no action has been taken on these proposals. On the contrary, developed countries are advocating a TRIPS-plus approach. The EU and the US have been pressurising countries through bilateral negotiations, to accept IPR regimes in excess of what the WTO demands. There are a number of bilateral or regional treaties between developed and developing countries that have more stringent rules than that provided under TRIPS.

3.5 THE WAY AHEADThe only way to fully ensure a fair deal for communities in developing countries is to remove biodiversity from TRIPS altogether. Since achieving this ambitious goal may take more time than the mandated review period allows, one way might be to secure a five-year suspension of the implementation of Article 27.3(b) so that developing countries may sort out their strategies.In any case, developing countries must at least ensure that there is no strengthening of the TRIPS Agreement, as some developed countries are trying to do through bilateral treaties. The other approach could be to negotiate at the international level for establishing the primacy of CBD over TRIPS. Article 22 of the CBD says:The provisions of this Convention shall not affect the rights and obligations of any ContractingParty 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.It is clear that the implementation of TRIPs is detrimental to the health of biological diversity and therefore its implementation must be made subservient to the conditions of the CBD.

4. CONFLICTING AGREEMENTS UNDERMINING BIODIVERSITY AND BIOSAFETY THE international Convention on Biological Diversity (CBD) and its Biosafety Protocol (BP) were achieved through hard bargaining on principles and national interests. Are these now being undermined by the World Trade Organisation (WTO) while pushing its objectives of providing a regulatory and institutional framework for the world trading system and of bringing national policies in line with international trade? The power invested under TRIPS in the `Dispute Settlement Body' and the `TRIPS Council' over-ride the jurisdiction and mandates of CBD and BP, as also the Convention on International Trade in Endangered Species (CITES), ILO Conventions (1957/107; 1989/169) dealing with the protection of the rights of indigenous people and local communities, the Declaration of the UN's Economic and Social Council (ECOSOC) on the rights of indigenous peoples (especially resolutions 1990/27 and 1991/31) and FAO's international undertaking on plant genetic resources. This power can nullify concepts and principles which are essential for sustainable development and environmental quality, and which were achieved after several rounds of international deliberations: The concept of sovereignty, the `precautionary', `internalising' and `polluter-pays' principles, and equitable benefit-sharing of genetic resources. Several agreements within WTO, particularly TRIPS (Article 27(3)b), directly or indirectly, affect biodiversity conservation. With respect to intellectual property, TRIPs (Articles 3 and 4) requires member-states to observe the principles of `national treatment' and `most-favoured nation'. Of seven forms of intellectual property protection (copyright, patenting, plant variety protection, industrial design, geographical indications, lay-out design of integrated circuits, and trade secrets) the three most important for biodiversity and biosafety are patents, Plant Variety Protection (PVP) and geographical indications. Article 27 of TRIPs sets the framework of the patent regime while Article 31 provides for compulsory licensing. India has already notified the Protection of Plant Varieties and Farmers' Rights Act 2001, following the provisions of UPOV, but the Geographic Indications Bill (2000) is still pending. Since the emergence of the WTO regime, three Articles of CBD have assumed greater relevance: Article 8(J) which relates to the preservation and maintenance of traditional knowledge systems of local communities, through equitable sharing of benefits; Article 16 covering the whole issue of access to and transfer of technology including biotechnology; and Article15.1 pertaining to the rights over genetic resources. 4.1 INDIGENOUS AND LOCAL COMMUNITY RIGHTS Article 8 (J) imposes a major responsibility on nations to establish a critical balance between biodiversity conservation and the protection of the rights of the indigenous and local communities. The debate on Intellectual Property Rights (IPRs) and on Article 8(J) took an interesting turn at the fifth meeting of the Conference of Parties (nations), at Nairobi in May 2000, with the Working Group II recommending the continuous involvement of indigenous people while the intellectual regime was being implemented. It also called for, inter alia, the full and direct participation of indigenous and local communities including women; recognition of the collective dimension of indigenous knowledge and the issues related to Mutually Agreed Terms (MAT)/Prior Informed Consent (PIC); and direct involvement of indigenous technical experts. The report recommended that parties support the development of traditional knowledge registers, recognised that the maintenance of such knowledge requires maintenance of cultural identities and the material base, and emphasised the need for indigenous and local communities to control and determine MAT/PIC arrangements so as to make informed decisions. The Working Group set out a two-phase approach for implementation. The first phase includes tasks that address participatory mechanisms, strategies and trends, benefit-sharing, exchange and dissemination of information, and other legal elements. The second phase would include participatory processes for conservation and systematic use, and other monitoring elements. 4.2 ACCESS TO AND TRANSFER OF BIOTECHNOLOGY Article 16 covering "Access to and transfer of technology" particularly emphasises that transfer of technology should be provided and/or facilitated under fair and most favourable terms. In the case of patents and other property rights, such access and transfer are to be provided only after honouring IPRs. It further stipulates that measures be taken at the policy level to ensure that the private sector facilitates access to joint development and transfer of technology, subject to national and international laws. 4.3 ACCESS TO GENETIC RESOURCES Article 15 on access to genetic resources provides a framework for establishing that States have sovereign right over their natural resources. It says that access to genetic resources shall be subject to the PIC of the Contracting Parties providing such resources. PIC is an important mechanism as it ensures community participation in decision-making. The royalty-sharing experiment between the Kani tribe and the Tropical Botanical Garden, Kerala, is an example of this. 4.4 POINTS OF CONFLICT The points of conflict are: a) Recognition of national sovereignty under the CBD implies that countries have the right to prohibit IPRs on life forms (biological resources). TRIPS overlooks this right by requiring the provision of IPRs on micro-organisms, non-biological and microbiological process, as well patents and/or sui generis protection on plant varieties. b) The CBD gives nations a legal basis to demand equitable benefit sharing arising from the use of biological resources and associated traditional knowledge, practices and innovations. TRIPS negates the broad historical contributions made by the communities in the IPRs regime and establishes the monopolistic control of the patent holder. Thus, there will be no legal synergies between these two sets of rights. c) The CBD gives Parties legal authority to provide access based on PIC and MAT to biological resources. TRIPS ignores this authority. d) The CBD places public interest and common good over private property and vested interest. TRIPS does the oppsosite. To deal with this conflicting situation, CBD must be fully developed as an effective international instrument if it is to promote the sustainable use and conservation of biodiversity, based on community control of resources. For example, since the WTO has an effective dispute redressal system, there is an urgent need for the establishment of a similar system under the CBD in the light of Article 22 (1) that states that the provisions of CBD "shall not affect the rights and obligations of any 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." This would bring the CBD on a par with the WTO Agreements vis--vis biodiversity conservation and the sustainable use of biological resources. Taking into account the precautionary approach, the objective of the Biosafety Protocol, under the CBD, is "to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of Living Modified Organisms (LMOs) resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements" (Article 1). Surprisingly, the definition of LMO (Article 3) does not include `product thereof' and as such these would be internationally unregulated. However, "the protocol shall apply to the transboundary movement, transit, handling and use of all LMOs that may have adverse effects... " in accordance with its objectives (Article 4), and exclude LMOs which are pharmaceuticals (LMO-P) for human uses and are covered by other international agreements or organisations (Article 5). LMOs intended for direct use as food, feed or for processing have also been excluded from the regular Advanced Informed Agreement and risk assessment (Article 7.2), but alternative procedures have been set. 4.5 GATT Three major provisions of the WTO, if narrowly interpreted, may have serious implications for the implementation of BP. GATT provides justification for trade barriers that are necessary to protect animal and plant life and health, and relate to the conservation of exhaustible natural resources" (Article XX ). Using these provisions, Trade Related Environmental Measures (under GATT) may be invoked as per the requirement of BP. However, the existing GATT panel has not taken measures comparable with the biosafety measures involving questions of scientific uncertainty, ethical and socio-economic considerations, and the diverse levels of risk-awareness in different WTO Parties. 4.6 SANITARY AND PHYTOSANITARY MEASURES The Agreement on Sanitary and Phytosanitary Measures (SPS) under WTO has refined the rights and obligations of the Parties while adopting measures to protect human, animal and plant life, and health risks arising from the introduction of food, disease-carrying or disease-causing organisms, including the entry and establishment of pests. It is to be noted that Article 2 (2) of the SPS requires parties to base their SPS measures on scientific principles and not to maintain these without sufficient scientific evidence. This means that the importing countries might not accept the safety measures which are adopted by exporting countries in the absence of scientific certainty. Besides, the LMO labelling scheme could still be defended by the importing countries as it would not create `arbitrary or unjustifiable discrimination', or represent a `misguided restriction' on international trade. 4.7 TECHNICAL BARRIERS TO TRADE The Agreement on Technical Barriers to Trade (TBT) aims to ensure that parties do not use domestic regulations, standards, testing and certification procedures to create unnecessary obstacles to trade. It has been designed to prevent arbitrary standards from being used to protect industries from foreign competitors. It encourages international standards that producers must comply with to gain access to different markets. The TBT agreement includes obligations relating to the preparation, adoption and application of technical regulations and standards, and the procedures for assessing whether the products conform to these regulations and standards. The agreement also imposes requirements for labelling of products. It is to be seen how countries not party to the CBD and the BP use these WTO agreements from the perspective of biosafety concerns. The preamble of the Biosafety Protocol reflects the compromise reached at Cartegana in May 2000. As the preamble is weaker than the text agreed upon earlier in Miami, the substantive articles are also rendered vulnerable to misuse due to the specific provisions in the protocol that refer to other international obligations Apart from the specific points of conflict between the CBD and the WTO, there are broader issues of lack of compatibility between the various WTO agreements and the CBD, including the Biosafety Protocol. These include: a) The enhancement of global trade through implementing the WTO Agreements may aggravate the unsustainable use of biodiversity, which is contrary to the objectives of CBD. b) The increased transportation activity and infrastructure development to promote global trade may have an adverse impact on the functioning of ecosystems, which could result in biodiversity losses. c) The trans-boundary movement of biological products, including LMOs in trade may result in the accidental introduction of alien species which may lead to destabilization of native species. d) The liberalisation of trade and investment may intensify the direct and indirect adverse impacts on biodiversity and the supporting habitats. e) The WTO agreements may interfere with the international/ national subsidies as incentives to the industry, or with conservation laws and policies which seek control of traded goods. (For instance, GATT conflicts with the CITES provisions on Tuna-Dolphin harvesting from the Sea). f) Moreover, built into the WTO agreements are various policy interventions for trade enhancement which may completely ignore the cost required for maintaining the environmental functions of the major habitats, thus, resulting in unsustainable production or trade in certain sectors. 4.8 RESOLVING THE CONFLICTS If the WTO Agreements and the CBD (inclusive of the Biosafety Protocol) are to be implemented in the interest of human survival and well-being, urgent measures are required to be taken to ensure that the objectives of CBD are not undermined by the narrow agenda of WTO Agreements, particularly of TRIPS. These measures would include: First, that nations recognise and affirm in law the primacy of the CBD over the TRIPs in the areas of biological resources and traditional knowledge systems. Second, the collective rights of indigenous and local communities to freely use, exchange and develop biodiversity should be recognized as a priori rights and be placed over and above private intellectual property rights. This has to be reflected in legislation and public policy at the national level. Third, the implementation of TRIPs in developing countries should be challenged so as to make these compatible with the provisions of the CBD. Fourthly, during the review of TRIPs, it should be ensured that there is an option to exclude all life forms and related knowledge from the IPR system. If such measures are taken by the parties concerned, the Convention on Biological Diversity and the Biosafety Protocol could provide an innovative approach to the interface of trade and environmental concerns, and set a precedent for `sustainable trade agreements' so that the potential value of biological resources can be optimised on a equitable basis for the welfare of human beings.

5. CASE STUDYCASE I KARNATAKA HIGH COURT ISSUES NOTICE IN PIL HIGHLIGHTING EGREGIOUS BIOPIRACY AND GOVERNMENTAL APATHYMeanwhile, Karnataka scandalously transfers prosecuting officers in biopiracy caseThe Principal Bench of the High Court of Karnataka (comprising Chief Justice Mr. Vikramjit Sen and Justice Mrs. B. V. Nagarathna) ordered issue of notice on 21 Nov 2012 in the Public Interest Litigation (Writ Petition No. 41532/2012) filed by Environment Support Group, Bangalore (ESG) and listed the matter for further consideration for the fourth week of January 2013.ESGs petition highlights the shocking state of biodiversity conservation in India, and urges the Court to direct attention to the widespread practice of biopiracy by national and international corporate bodies. Further, the petition highlights a number of specific defects, lacunae and failures in the current legal and institutional regimes that are directly resulting in the rampant irreversible loss of India's biological diversity and associated traditional knowledge, and are thereby threatening not only sovereign control over biological resources but also the livelihoods of indigenous and natural resources dependent peoples.Specifically, the Petitioners have drawn the attention of the Court to the continuing failure on the part of regulatory authorities to initiate action against M/s Mahyco, M/s Monsanto, and various public agricultural universities involved in promoting B.t. Brinjal despite categorical evidence indicating that egregious criminal biopiracy of local varieties of brinjal (egg plant) was involved. This failure of the regulatory authorities has also been strongly criticised by the Parliamentary Committee on Agriculture in its August 2012 report on Cultivation of Genetically Modified Food Crops Prospects and Effects which has called for ....a thorough inquiry in the matter of continued paralysis in decision making on a case of this dimension.The Petitioners have also highlighted that the Ministry of Environment and Forest's 26 October 2009 Notification listing 190 plants as Normally Traded Commodities (NTC) includes, shockingly, at least 18 critically endangered plants. The Petition contends that while hundreds of community and regional initiatives are desperately trying to protect such endangered plants, the Ministry's Notification callously promotes their unfettered international trade thus driving them potentially into extinction. The Petition also argues that Section 40 of the Biodiversity Act, 2002, which arbitrarily allows such unfettered trade in India's biological wealth through an uncanalised power to label something as a Normally Traded Commodity, paves the way for rampant biopiracy. The writ petition therefore urges that this section be struck down as being ultra vires of the Biological Diversity Act, 2002 and the Constitution of India.Finally, the Petition draws the attention of the Court to the reports of the Comptroller and Auditor General of India and the Indian Parliament's Committees on Agriculture and Public Accounts, all of which have independently come to the conclusion that there has been colossal failure on the part of the Ministry of Environment and Forests and the National Biodiversity Authority in protecting the country's biodiversity.On such and other grounds, the petition prays that environment, social and bio-diversity impact assessments based on meaningful compliance with the Principle of Prior and Informed Consent must be made mandatory for all decisions impacting biodiversity, associated traditional knowledge and livelihoods. The prayer seeks the quashing of the Ministry's 26 October 2009 Notification on NTC and urges the Court to direct the Ministry and the National Biodiversity Authority to institute appropriate structures, procedures and norms to protect India's biodiversity in strict conformance with relevant constitutional norms, the Biological Diversity Act, 2002, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, Environment (Protection) Act, 1986, amongst others.It may be recalled that the High Court had taken note of the PIL on 16 October 2012 when Chief Justice Mr. Vikramjit Sen pointedly observed that dharnas must be organised against the United States of America for its continued intransigence in complying with global biodiversity norms, highlighting that such action might perhaps be necessary in tackling challenges to global biodiversity conservation. This remark was made even as the 11th Conference of Parties on the Convention on Biological Diversity was held at Hyderabad, a gala UN event that was colossal failure in safeguardig biodiversity and traditional knowledge and livelihoods associated with it.Karnataka transfers officials prosecuting Monsanto/Mahyco and others in biopiracy case:The extraordinary seriousness with which the Court had taken note of the Petition's concerns should have propelled regulatory agencies in initiating prosecution of those guilty of biopiracy. Quite in contrast, when Petition is under the active consideration of the Court, it is reported that the Karnataka Government has scandalously transferred the two key officers who were empowered by the Karnataka Biodiversity Board to file criminal complaints against Monsanto/Mahyco and others involved in biopiracy while advancing B.t. Brinjal . This is clearly demonstrative of the high levels of collusion that exists within the Government to scuttle the possibility of prosecution in India's first biopiracy case proceeding per law.ESG holds that this is clearly to benefit powerful agri-business corporations such as Monsanto, and will take up this matter at the very highest level to have the officers restored to their current positions forthwith.CASE II SAVING WILD TIGERS: A CASE STUDY IN BIODIVERSITY LOSS AND CHALLENGES TO BE MET FOR RECOVERYWild tigers are being annihilated. Tiger range countries and their partners met at the 1st Asian Ministerial Conference on Tiger Conservation in January 2010 to mandate the creation of the Global Tiger Recovery Program to double the number of tigers by 2022. Only 32003600 wild adult tigers remain, approximately half of the population estimated a decade ago. Tigers now live in only 13 countries, all of which are experiencing severe environmental challenges and degradation from the effects of human population growth, brisk economic expansion, rapidurbanization, massive infrastructure development and climate change. The overarching challenge of tiger conservation, and the conservation of biodiversity generally, is that there is insufficient demand for the survival of wild tigers living in natural landscapes. This allows the criminal activities of poaching wild tigers and their prey and trafficking in tiger derivatives to flourish and tiger landscapes to be diminished. The Global Tiger Recovery Program will support scaling up of practices already proven effective in one or more tiger range countries that need wider policy support, usually resources, and new transnational actions that enhance the effectiveness of individual country actions. The program is built on robust National Tiger Recovery Priorities that are grouped into themes: (i) strengthening policies that protect tigers; (ii) protecting tiger conservation landscapes; (iii) scientific management and monitoring; (iv) engaging communities; (v) cooperative management of international tiger landscapes; (vi) eliminating transnational illegal wildlife trade; (vii) persuading people to stop consuming tiger; (viii) enhancing professional capacity of policy-makers and practitioners; and (ix) developing sustainable, long-term financing mechanisms for tiger and biodiversity conservation.

RECOVERING TIGER POPULATIONSTo address the looming biodiversity crisis and to make tigers the face of biodiversity, the World Bank, the Global Environmental Facility, the Smithsonian Institution and other partners launched the Global Tiger Initiative (GTI 2009) in June 2008. Since then, the GTI has become an alliance of governments, including all 13 TRCs, international organizations and civil society, coordinated by a small GTI Secretariat hosted by the World Bank. The alliance was deepened at a global workshop in Nepal in October 2009, at which the partners shared best practices and developed the Kathmandu Recommendations for scaling up those best practices to achieve real conservation progress on the ground (GTI 2009). This led to the AMCTC in Thailand in January 2010, where the Hua Hin Declaration committed TRCs to accelerating priority national actions and charged the international community with undertaking efforts to support the TRCs where issues transcend national boundaries, with an emphasis on stopping the illegal wildlife trade (AMCTC 2010). The Hua Hin Declaration required commitments to: (i) policy changes and other activities to make critical habitats and core areas that support tiger source populations inviolate with no economic development permitted; (ii) identify buffer zones and corridors for tiger conservation and ensure their integrity through assessment of proposed infrastructure and other land-altering economic development and appropriate mitigations (such as Smart GreenInfrastructure, Quintero et al. 2009); (iii) mainstream tiger concerns through sectoral integration; and (iv) foster trans-boundary TCL management to benefit tigers. The Hua Hin Declaration also set the global goal of doubling the number of wild tigers by 2022, and endorsed the plan for a Tiger Summit to be held in Russia. J. Seidensticker After a series of National Consultations during which TRCs developed their National Tiger Recovery Priorities, the partners met in Bali in July 2010 to endorse the concept of the GTRP, which is built on the National Tiger Recovery Priorities and associated Global Support Programs. The GTRP will be launched at an unprecedented Heads of Governments Tiger Summit in November 2010, hosted by Russian Prime Minister Putin in Saint Petersburg with the strong support of World Bank PresidentRobert Zoellick.These milestones, and the GTRP (2010), are a result of all 13 TRCs and the international community working together for the first time on a cooperative platform, sharing knowledge and experience and developing a collaborative program to achieve a global goal. There has neverbeen a comparable comprehensive, costed-out, rangecountry- driven effort to save a species and the valuable ecosystems in which it lives for the benefit of current and future generations of people. The GTRP will support scaling up practices already proven effective in one or more TRC that need wider policy support, usually resources, and new transnational actions that enhance theeffectiveness of individual TRC actions. The GTRP is built on the foundation of robust National Tiger Recovery Priorities developed by each TRC that are grouped into 10 themes: strengthen policies that protect tigers, landscape protection, scientific management and monitoring, community engagement, cooperative management of international tiger landscapes, help TRCseliminate the huge transnational illegal wildlife trade, persuade people to stop consuming tigers, enhance professional capacity of policy-makers and practitioners, and develop sustainable long-term financing mechanisms for conservation.The broad outline of the GTRP (2010) is as follows:1. The unrelenting poaching pressure to supply the increasing demand for tiger parts and products, driven by increased wealth in the global tiger-consuming sector (Gratwicke et al. 2008; TRAFFIC 2008), requires full attention by all TRCs and globally to enforce existing laws and to create effective demand-reduction mechanisms. Attempts at demand reduction have only been partially effective to date. This goes concurrently with providing effective protection to tigers by increasing management effectiveness in protected core areas, increasing the extent of protected core tiger habitats, such as has recently been done for the Hukaung Valley Tiger Sanctuary in Myanmar (Wildlife Conservation Society 2010) and the Banke National Park in Nepal (DNPWC 2010), and linking protected core tiger habitats with corridors that enable tigers to movebetween the core habitats.2. Pockets of poverty surround and are embedded in TCLs. Programs are required to address the economic needs of communities living around wild tiger populations and to gain local support for conservation through participatory engagement in sustaining natural resources as well as development of sustainable alternative livelihoods. 3. Tiger range countries own economic development goals, which might entail achieving 10% per annum, are driving landscape transformations, and are overwhelming the institutional architecture (protected area systems, governance and resourcing) established in the 1970s to protect tigers. The old conservation architecture requires remodeling, and the old strategies need a paradigm shift to meet the current and emerging challenges. This necessitates capacity building, new knowledge-sharing platforms and improved governance.4. The challenge of managing core protected areas is in restricting uses inside the areas and stabilizing threats outside the areas that spill in. However, even within protected areas, conflict with humans is a significant cause of tiger and human mortality (Gurung et al. 2008). Significant mortality occurs when tigers range beyond the borders of core protected areas, and thisrequires mitigating carnivore persecution on the edges of protected core areas and in buffer zones (Woodroffe & Ginsberg 1998; Miquelle et al. 2010b).5. Although the goal in tiger conservation is to create core protected areas that are buffered and linked to other core protected areas, in fact, many people live within their borders and these people rely on resources from these areas for their livelihood. Most Indian tiger reserves and protected area systems in Bhutan, Indonesia and Malaysia are examples. The conservationchallenge is to reduce the human footprint in the protected core breeding areas. This is fully recognized by the TRC in the GTRP (2010). Some countries have proposed a process of voluntary resettlement where the social context will allow it to occur or, alternatively, more refined zoning to shield breeding female tigers from human intrusions.6. The landscape conservation strategy allows tigers to exist as a collection of ecologically and genetically linked sub-populations or a metapopulation that confers more robustness and resilience to withstand threats and stressors generated by people. However, many tiger core breeding populations are for the most part no Saving wild tigers longer embedded in a larger landscape of tiger-friendly habitat. Instead, they are usually isolated or tenuously connected to other habitat. Therefore, the new GTRP strategy emphasizes securing, and restoring wherenecessary, the habitat corridors that help to connect the core breeding populations. The basic premise of landscape conservation and metapopulation management is to increase the ecologically and genetically functional size of tiger populations. It is recognized that failure to do so now will result in further isolation of the core breeding populations contained within andbetween TCLs because of the rapid rate at which habitat is being converted, degraded and fragmented in fastdeveloping Asia. Deferring action for another decade, or even 5 years, is not an option anymore. The AMCTC recognized that all of the above requires sustainable financing beyond existing country and international investments, without which wild tigers will not be saved (GTRP 2010). Conservation of endangered species vulnerable to poaching is an especially costly exercise(Damania et al. 2008). The funds needed above what the TRCs are already expending total approximately $50 million per year over for the next 5 years. The incremental funds needed for tiger recovery vary between 40 and 60%, with the exception that India has determined it doesnot require additional financing beyond what is now being allocated (GTRP 2010).To overcome this resource deficit, the battle to save tigers requires forming new alliances. Although funds to specifically manage and conserve tiger landscapes are few, many donors invest large sums in improving the livelihoods of local community through sustainable management of forests and natural resources. The foundation of sustainability of natural resources and forests is healthy ecosystems. Tigers are a barometer of ecosystem health.Tigers are the face of biodiversity conservation in general. TRCs, conservation organizations and global partners can form alliances and partnerships to leverage and strategically channel funds invested by these donors for better landscape management that benefits people and tigers.

CLOSING COMMENTSAll of the best efforts of the past are not working to save tigers. At best, they have only slowed the rate of their decline. The GTRP (2010) recognized that recovering wild tigers requires a multifaceted approach that includes: (i) changing the conversation about tiger conservation, andbring many more voices into the discussion on saving wild tigers; (ii) confronting and overcoming the enormous asymmetry between the resources fueling economic and infrastructure development and poaching, on the one hand, and the limited resources that conservationists can muster on the other; (iii) boosting our human capacity to address the host of problems that must be solved to save wild tigers; (iv) creating the political influence and social clout to effect changes in perceptions and policies to make live wild tigers living in the wild worth more than dead tigers; and (v) generating sustained financing to support biodiversity conservation.Achieving the vision to double tiger numbers in the next 12 years requires concomitant management interventions at the source sites and in the surrounding landscapes. The battle to save tigers is at a stage where it has to be fought at multiple fronts. For tigers to survive in the long term, tigers and their prey must be protected and managed at a landscape scale that includes protection of source sites, buffer zones, dispersal corridors and the restoration of degraded lands, coupled with initiatives through which the conservation of tigers directly and indirectly meetsthe needs of local people. Concurrently, this strategy requires the suppression of the demand that drives tiger poaching. In addition, it requires a sustained political will to support these conservation efforts. As we lose tigers from ecosystems, it means the conditions in those ecosystems are eroding. The ecosystems themselves lose their resilience to natural and human caused change. The ecosystem services that tiger forests provide to people are compromised. Lacking the tigers umbrella, other biodiversity will be at great risk and erode too. We will have failed to leave the legacy of magnificent wild tigers to our children.

CONCLUSIONTrade is a critically important issue for all of us. We are utterly dependent for our very survival, or at least welfare, on harvested natural resources from some of the most volatile parts of the world, causing our governments to make substantial military expenditures to keep the whole system functioning. Some people may have their doubts, but the consensus in most parts of the world is that global trade is, on balance, a good thing and a key component of sustainable development, even if it often seems that the benefits flow disproportionately in favour of those who are already well off. But what are the impacts of trade on biodiversity?

First, the institutional context of the resource management regime is essential. All depends on whether the harvested resource is being managed with a view toward optimal use, or whether it is simply open access to earn quick income. Renewable natural resources - forests, fisheries, crops- are inherently dynamic, often affected by unpredictable variables such as climate or rates of replenishment; and complex environmental issues surround resource extraction, including non-use values, ecosystem services, invasion of non-native species, and conversion of productive habitats to less productive alternative uses. Further, many of these resource systems have people who may have been living within them for several generations or more, but are not always fully involved in the decisions about how these resources are to be exploited today. Because the impacts of resource extraction on biodiversity are felt locally, those involved in global trade disclaim any responsibility for the mode of production or transport. They simply accept as a matter of faith that the responsible governments will ensure that any environmental costs are incorporated into the prices that are charged for the commodities traded. Small wonder that the international community is willing to leave such issues up to the national governments.

Instead of a general policy solution, each specific management problem affecting biodiversity will need to be analysed case by case in order to determine the linkages between the key economic, ecological, and institutional factors that are driving the problem. By identifying the impacts of trade on resource management, biodiversity and economic welfare, the possible policy remedies can be recommended to governments and possibly to the WTO, CBD, and CITES as well.

Whether trade is good or bad for biodiversity and welfare depends on the interplay of complex economic, ecological, and institutional factors. Policy options and recommendations can also be expected to reflect the complexity of the issues involved, arguing against any simple answer support