The TRIPS agreement seems to further the hypothesis that only the intellectual contributions of the corporate-sponsored scientists need intellectual property protector and compensation. It pays no attention to the fact that there has been an uncompensated free flow of resources and knowledge from the developing countries to the first world especially when knowledge and biological resources are inalienable for most communities living in the third world countries.
Convention of Biodiversity recognises this fact and provides protection to these biological resources and knowledge and prevents their exploitation. This difference in approaches and focus of the two agreements gives rise to a host of contradictions. The two legally binding international agreements are inconsistent and even contradict each other as said earlier on three major levels namely: (i) Objectives, (ii) Principles, and (iii) Legal Obligations.
We comment on each in the following paragraphs: CBD strengthens the capacities of the developing countries’ to conserve and use biological diversity on a long-term basis, taking into account all their rights over those resources including the right to enjoy the benefits of their resource base.
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However, due to unequal distribution of capital resources and technological prowess between countries rich in biological diversity and those that have well developed economic and legal structures, the South has been consistently exploited.
The CBD is designed with the intentions of remedying this anomaly. Thus its unstated objective is also to provide a platform to South from where it can enter the area of environmental resource management on equal footing with North. Those specific steps that have been undertaken in CBD to meet this objective may be described as below:
i. Empowering the South to regulate access to its biodiversity;
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ii. Conditioning access to South’s biodiversity by requiring prior informed consent and sharing of benefits;
iii. Providing for transfer of technology from North to South; and
iv. Recognising the collective rights of local communities in developing countries who are the source of biodiversity and traditional knowledge and whose role in conservation is now universally acknowledged as of fundamental nature.
The objective of TRIPS is to make available proprietary claims and rights over products and processes. These products/processes may be related with biodiversity or not.
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The proprietary rights ensured in TRIPS have to benefit the trading and the corporate world and have been so framed as provisions of the TRIPS that they become applicable globally. The legal safeguard intended in TRIPS are likely to guarantee monopoly of the products and processes to the people and groups who establish inventions of new plants and micro-organisms etc. and/or processes related with them.
