Convention on Biological Diversity, the Doha Round and the International Treaty on Plant Genetic Resources - Intellectual Property Rights II

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1. The Convention on Biological Diversity, 1992
2. The Doha Round and plant varieties
3. International Treaty on Plant Genetic Resources for Food and Agriculture, 2001
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

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Three instruments, one conflict. TRIPS treats genetic material as something on which private rights may be granted; the CBD treats it as the sovereign resource of the country of origin, accessible only with its consent; the ITPGRFA puts the main food crops into a common pool. Indian law (the Biological Diversity Act and the PPV&FR Act) is built on the CBD and the ITPGRFA, and the Doha Round is where India has argued for reconciling them with TRIPS.

1. The Convention on Biological Diversity, 1992

Background. Negotiated under the United Nations Environment Programme and opened for signature at the Rio Earth Summit on 5 June 1992, the CBD came into force on 29 December 1993. It has 196 parties; the United States has signed but not ratified it. India ratified it in 1994 and enacted the Biological Diversity Act, 2002 to implement it. It was the first treaty to treat biodiversity as a whole, rather than particular species or habitats, and to link conservation with economic benefit to source countries.

Objectives (Article 1).

the conservation of biological diversity;
the sustainable use of its components; and
the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources, including by appropriate access to genetic resources, transfer of relevant technologies (taking into account all rights over them) and appropriate funding.

Salient features.

Sovereign rights (Article 3): States have the sovereign right to exploit their own resources under their environmental policies, and the responsibility to ensure that activities within their control do not cause damage beyond their territory. This ended the earlier view of genetic resources as the “common heritage of mankind”.
National strategies and integration into sectoral plans (Article 6); identification and monitoring (Article 7).
In situ conservation (Article 8), including protected areas, control of living modified organisms and alien species, and, in Article 8(j), respecting, preserving and maintaining the knowledge, innovations and practices of indigenous and local communities, promoting their wider application with the approval of the holders, and encouraging equitable sharing of benefits.
Ex situ conservation (Article 9), preferably in the country of origin; sustainable use (Article 10); incentives, research, public education and environmental impact assessment (Articles 11 to 14).
Access to genetic resources (Article 15): the authority to determine access rests with national governments and is subject to national legislation; access is on mutually agreed terms and subject to prior informed consent of the providing country; benefits from research and commercial use are to be shared fairly and equitably.
Access to and transfer of technology (Article 16), on fair and most favourable terms for developing countries, consistent with the adequate protection of IP rights; parties are to cooperate to ensure that patents and other IP rights “are supportive of and do not run counter to” the CBD’s objectives (Article 16(5)).
Biotechnology (Article 19), including the call for a biosafety protocol.
Financial resources and mechanism (Articles 20 and 21), through the Global Environment Facility.
Institutions: Conference of the Parties (Article 23), Secretariat at Montreal (Article 24), and a scientific advisory body (Article 25); dispute settlement by negotiation, arbitration or the ICJ (Article 27).

Protocols and later developments.

Cartagena Protocol on Biosafety (2000, in force 2003): advance informed agreement for transboundary movement of living modified organisms.
Nagoya Protocol on Access and Benefit-sharing (2010, in force 12 October 2014): detailed obligations on prior informed consent, mutually agreed terms, benefit sharing (including for traditional knowledge), and user-country compliance through checkpoints and internationally recognised certificates of compliance. India is a party, and the NBA’s approvals serve as such certificates.
Kunming-Montreal Global Biodiversity Framework (2022): twenty-three targets for 2030, including conserving thirty per cent of land and sea areas.

2. The Doha Round and plant varieties

The Doha Round (the Doha Development Agenda) was launched at the WTO’s Fourth Ministerial Conference at Doha in November 2001. Its IP-related parts were:

the separate Declaration on the TRIPS Agreement and Public Health (see the TRIPS note);
a mandate to negotiate a multilateral register of geographical indications for wines and spirits, and discussion on extending the higher protection of Article 23 to other products;
under paragraph 19 of the Ministerial Declaration, the TRIPS Council was directed to examine the review of Article 27.3(b) (patenting of life forms and plant variety protection), the relationship between TRIPS and the CBD, and the protection of traditional knowledge and folklore, guided by the objectives and principles in Articles 7 and 8 and taking development into account.

On these, positions divided. India, Brazil, China and many African and other developing countries proposed amending TRIPS (a draft Article 29bis) to require patent applicants to disclose the source and country of origin of genetic resources and traditional knowledge used in the invention, and evidence of prior informed consent and benefit sharing; they also sought clarification that Article 27.3(b) should not require patents on life forms and should allow sui generis systems that protect farmers’ rights. The United States, Japan and others opposed mandatory disclosure and preferred databases and contracts. The European Union accepted a form of disclosure. There was no agreement.

The Round as a whole stalled after the Cancún Ministerial (2003) and the collapse of talks in July 2008. The Bali package of 2013 (including the Trade Facilitation Agreement) was a limited outcome, and at Nairobi in 2015 members recorded that they did not agree on whether to reaffirm the Doha mandate. On IP and genetic resources the disclosure issue moved to WIPO, where the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge was adopted in May 2024, requiring patent applicants to disclose the origin or source of genetic resources and associated traditional knowledge.

For India the importance of the Round is that it kept the TRIPS flexibilities, and India’s choice of a sui generis plant variety law with farmers’ rights, unchallenged.

3. International Treaty on Plant Genetic Resources for Food and Agriculture, 2001

Background. Adopted by the FAO Conference on 3 November 2001, it came into force on 29 June 2004. It replaced the non-binding International Undertaking on Plant Genetic Resources (1983) and was negotiated to be in harmony with the CBD. India is a party.

Objectives (Article 1): the conservation and sustainable use of plant genetic resources for food and agriculture, and the fair and equitable sharing of benefits from their use, in harmony with the CBD, for sustainable agriculture and food security.

Salient features.

Multilateral System of Access and Benefit-sharing (Articles 10 to 13). Instead of country-by-country negotiation, the crops listed in Annex I (64 food crops and forages, such as rice, wheat, maize, potato and many legumes) held by parties and in international collections are put into a pool, accessible for research, breeding and training for food and agriculture on standard terms.
Standard Material Transfer Agreement (SMTA): every transfer uses the same contract. Recipients may not claim IP rights that limit facilitated access to the material in the form received from the System (Article 12.3(d)).
Benefit sharing (Article 13): exchange of information, access to and transfer of technology, capacity building, and sharing of monetary benefits; a recipient who commercialises a product incorporating material from the System and restricts its further use for research and breeding must pay a share of the revenue into the Benefit-sharing Fund, which supports farmers in developing countries.
Farmers’ Rights (Article 9): recognising the enormous contribution of local and indigenous communities and farmers, the responsibility for realising these rights lies with national governments, including protection of traditional knowledge, the right to participate equitably in benefit sharing, the right to participate in national decision-making, and, subject to national law, the right to save, use, exchange and sell farm-saved seed. India’s section 39 of the PPV&FR Act gives these rights statutory force.
Governing Body of all parties, and the Global Plan of Action for conservation.

Link with Indian law. Under the Biological Diversity Act, the Central Government has exempted the Annex I crops from seeking NBA approval under sections 3 and 4, so that India’s obligations under the Treaty and the Act fit together.

How this is examined

January 2026 set “Explain the salient features of convention on biological diversity” (10 marks) and “Objectives of convention on Bio Diversity” (6 marks); June 2025 “Write a note on convention bio-diversity” (in Unit II) and “Doha round of trade negotiation”; February 2025 “Write a note on convention on biological diversity” and “International Treaty on Plant Genetic Resources, 2001”. For the CBD essay, give the background, the three objectives and the Articles in section 1, and end with Nagoya and the Biological Diversity Act. For Doha, explain paragraph 19 and the disclosure debate. For the ITPGR, the multilateral system, the SMTA and farmers’ rights are the three points to make.