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The Convention on Biological Diversity, 1992

Law of Intellectual Property and Biodiversity · Unit II · Topic 5 of 14 · 7 min read

The Rio Convention's origins, three objectives, sovereignty principle, conservation duties (in situ, ex situ, Article 8(j)), access to genetic resources under Article 15, technology transfer and the IP clause in Article 16, biotechnology and biosafety under Article 19, institutions and finance, and the Kunming-Montreal Framework of 2022.

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On this page
  1. 1. Origins
  2. 2. Objectives (Article 1)
  3. 3. Definitions and principle
  4. 4. Conservation and sustainable use
  5. 5. Access to genetic resources (Article 15)
  6. 6. Technology transfer and IP (Article 16)
  7. 7. Biotechnology and biosafety (Article 19)
  8. 8. Finance and institutions
  9. 9. The Convention in practice
  10. How this is examined
Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. The CBD is the parent instrument of the whole paper: the Cartagena and Nagoya Protocols are made under it, the Bonn Guidelines interpret it, and India’s Biological Diversity Act implements it. Learn Articles 1, 2, 3, 8(j), 15, 16 and 19 thoroughly, and the structure of the rest.

1. Origins

By the 1980s conservation treaties were sectoral: wetlands (Ramsar, 1971), trade in endangered species (CITES, 1973), migratory species (Bonn, 1979). The UNEP Governing Council set up a working group in 1988 to prepare an umbrella convention. Three forces shaped the text: concern at accelerating species loss; developing countries’ demand for sovereignty over genetic resources and a share of biotechnology profits; and the biotechnology industry’s concern about IP. The text was adopted at Nairobi in May 1992, opened for signature at the Rio Earth Summit on 5 June 1992, and entered into force on 29 December 1993. India is a party. Membership is almost universal; the United States signed but has not ratified.

2. Objectives (Article 1)

  1. the conservation of biological diversity;
  2. the sustainable use of its components; and
  3. the fair and equitable sharing of the benefits arising out of the utilisation 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 technologies, and by appropriate funding.

The third objective is what made the CBD a development treaty and not only an environmental one. The words “taking into account all rights over those resources and to technologies” are a reference to IP.

3. Definitions and principle

Article 2 defines biological diversity, biological resources, genetic material, genetic resources, biotechnology, country of origin of genetic resources (the country which possesses them in in situ conditions), country providing genetic resources, ex situ and in situ conservation. These are discussed in the Unit I note on key terms.

Article 3 states the principle: states have the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond national jurisdiction. The preamble calls conservation of biodiversity “a common concern of humankind”, a deliberate step away from “common heritage”.

4. Conservation and sustainable use

Article 8(j): subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant to conservation and sustainable use, promote their wider application with the approval and involvement of the holders, and encourage the equitable sharing of benefits from their use. This is the CBD’s traditional knowledge clause and the legal hook for community rights. COP16 (2024) created a permanent subsidiary body on Article 8(j).

5. Access to genetic resources (Article 15)

  1. Recognising sovereign rights, the authority to determine access rests with national governments and is subject to national legislation (15(1)).
  2. Parties shall endeavour to create conditions to facilitate access for environmentally sound uses and not impose restrictions contrary to the Convention (15(2)).
  3. The genetic resources covered are only those provided by parties that are countries of origin or that acquired them in accordance with the Convention (15(3)). Pre-1993 ex situ collections fall outside.
  4. Access, where granted, is on mutually agreed terms (15(4)) and subject to the prior informed consent of the providing party, unless it decides otherwise (15(5)).
  5. Research based on genetic resources should be carried out with the full participation of providing parties and, where possible, in them (15(6)).
  6. Parties shall take legislative, administrative or policy measures to share in a fair and equitable way the results of research and development and the benefits of commercial and other use with the providing party, on mutually agreed terms (15(7)).

6. Technology transfer and IP (Article 16)

Article 16(5) concedes that IP can work against the CBD but does not say what happens when it does. That gap is the subject of the CBD–TRIPS note.

7. Biotechnology and biosafety (Article 19)

Parties shall provide for the effective participation in biotechnological research of parties that provide genetic resources (19(1)) and promote priority access, on a fair and equitable basis, to the results and benefits of biotechnologies based on their resources (19(2)). Article 19(3) required parties to consider the need for a protocol on the safe transfer, handling and use of living modified organisms; this produced the Cartagena Protocol (2000).

8. Finance and institutions

9. The Convention in practice

The COP has worked through strategic plans. The Aichi Biodiversity Targets (2010–2020) were largely missed. The Kunming-Montreal Global Biodiversity Framework (COP15, December 2022) has four long-term goals for 2050 and 23 targets for 2030, including Target 3 (“30 by 30”: conserve 30% of land, inland waters and coastal and marine areas), Target 13 on benefit sharing and digital sequence information, and Target 22 on the participation and rights of indigenous peoples and local communities. COP16 (Cali, 2024) established the Cali Fund for benefit sharing from digital sequence information.

Critique. The CBD’s duties are mostly qualified by “as far as possible and as appropriate”, so they bind loosely. Its ABS model has produced modest benefits and heavy transaction costs. Its 8(j) is “subject to national legislation” and gives communities no veto. Yet it achieved two lasting things: it ended the free-access regime for genetic resources, and it made benefit sharing an accepted legal norm that TRIPS discussions, WIPO’s 2024 Treaty and national laws all now accept.

How this is examined

Likely long questions. “Discuss the salient features of the Convention on Biological Diversity, 1992.” “Examine the access and benefit-sharing regime under Article 15 of the CBD.” “The CBD has shifted genetic resources from common heritage to national sovereignty. Comment.”

Likely short notes. Article 8(j); prior informed consent; mutually agreed terms; Article 16(5); in situ and ex situ conservation; Kunming-Montreal Global Biodiversity Framework.