new genetic material with dramatic consequences on the environment, economy and issues of equity.

The Convention on Biological Diversity went through several drafts before it was finally signed at the UNCED in Rio. The developing countries call it a small but significant victory. At the same time, when the developing countries are feeling upbeat about the Biodiversity Convention, another outcome of the international parleys holds ominous portents. This is the Dunkel Draft Text (DDT). In India, the DDT has stirred up a number of controversies, inside and outside the parliament. Many of its clauses could have implications on India’s trade, economy and sovereignty. One such clause, which has been engaging the attention of scientists and environmentalists relates to the provision of Intellectual Property Rights (IPR) on biological materials.

Ms. Usha Menon, a scientist at the National Institute for Science, Technology and Development Studies (NISTADS), New Delhi, has in various papers analysed these issues, especially the impact of changing our patent laws to provide intellectual property rights on life forms. Ms. Menon, whose opinion has often been sought during the debate, discussed the issues connected with the Biodiversity Convention and the Dunkel Draft in a wide-ranging interview with Madhavi Makkapati. Some excerpts:

Q. In your view, what has India gained from the Convention on Biological Diversity?

A. We have achieved less than what I, personally, had hoped we would. the achievements can be judged in terms of the two main aspects of the convention; namely access to genetic resources and access to technology. From a limited point of view, w e can consider it a gain that national sovereignty over genetic resources has been clearly established. But this is a double edged sword which cuts both ways. While this might still facilitate our denial of access to cashewnut germplasm, it also prevents our access to oil palm germplasm from Malaysia or rubber from Brazil; and more significantly, the convention does not talk about access to the germplasm in the gene banks, most of which held in the developed countries.

Regarding access to technology, one might feel good about the statements which seem to establish access to technology for the developing countries, particularly those supplying genetic resources. But when you start analysing the text, you discover how contradictory it is. Developing countries in general, are unlikely to gain access to biotechnology because of the articles of this convention. Article 16 states that it should be made on "concessional and preferential terms". but another clause (Article 16.2) neutralises it by station that "the terms of access should recognise and be consistent with adequate and effective protection of intellectual property rights." Countries supplying genetic resources are in a slightly better position, but even they get affected by the contradiction in the text.

Q. If India were to provide genetic resources to another country then, in accordance with this Convention how will the technology transfer take place?

A. That is what has to be worked out - the protocol, rules, interpretations, etc., will decide that. Even then, there are many loopholes - the definition of a ‘country providing genetic resources’ in Article2, includes ‘countries supplying genetic resources collected from in-suit sources, including populations of both wild and domesticated species, or taken from ex-situ sources, which may or may not have originated in that country’. this definition has been countered in Article 15.3; so, in Article 16.3, which talks about countries providing genetic resources, either definition could be used. Another important aspect is that, even these rights are applicable only for the collections to be made in the future and not to past collections. Therefore, the whole question of monitoring when the collection was made also comes up.

Q. Why did the U.S.A. not sign this Convention? Do you think it will affect the Convention?

A. there could be political motives, during an election year. President Bush, perhaps, did not what to be accused of depriving people of employment or having made compromises.

U.S.A. is not the only country which supplies biotechnology, there are others such as France and Japan, which are signatories to this convention. the British Bio-industries Association has accepted this Convention. which perhaps shows that they will not lose anything. I do not think these companies are against paying some amount of money for taking away the germplasm. And the Convention certainly does not specify the money involved. Recently in a much publicised del, Merck and Company of U.S.A. have got access to the genetic resources of Costa Rica by giving one million dollars and a paltry five per cent of the royalties (to be generated form those materials) to a private organisation which the Western agencies themselves had helped to set up.

Q. there is a feeling that the Biodiversity Convention and the Dunkel Draft are contradictory. Can a country that is signatory to both conventions, use one to override the other?

A. The Dunkel Draft is for a very strong IPR regime. In the Dunkel Draft, the IPR regime is being extended to include plant varieties also. It would only strengthen the clauses which, in the Biodiversity Convention ask for recognition of IPR. Further, legally the critical notes in the Biodiversity Convention cannot change the tenor of the TRIPS text. Although politically, they could and should be made use of.

Q. If India rejects the Dunkel Draft, will we be out of GATT, and lose out an international trade?

A. No. Because even in the earlier GATT Round, some countries signed only a few protocols and not all. In this case, there will be a new organization, the Multilateral Trade Organization (MTO), and we will not be allowed membership of that, but we can continue to be a member of GATT. The ultimate loss could be that the advantages being given to the members of the MTO will not be given to us. But I don’t see, whatever is already recognised within GATT, like the Most Favoured Nation (MFN) status, being withdrawn. It just means that if we don’t sign and are still members of GATT, it will be a little more difficult for the developed countries to take action against us. Of course, one should not forget that even today, they are taking action against us under Special 301, which is actually illegal under GATT, but is a part of the U.S. national law.

Q. What are the chances that India can pressurise for changes in the Dunkel Draft?

A. I think there are very good chances if we really make up our minds, and act fast. This means that we will have to mobilize other third world countries send people to at least the major capitals of these countries and build up a strong case against the clauses. unfortunately, the Government of India itself is dithering, and so we have not taken any leadership. As citizens of this country, we have to mount pressure on our Members of Parliament when the debate is initiated in the Parliament.

Q. You have written a number of papers voicing your opinion on these matters. What, according to you is the level of awareness and the response?

A. The response has been very good. The media is more responsive now. Earlier, we had to cajole people to organise seminars, but now people are taking up independent initiatives. The Ministry of Commerce has also agreed that TRIPs is not something which we should accept totally. But since it is becoming a political issue, the ultimate decision will be clouded by the political process.

For further information contact the National Working Group of Patent Laws, 79, Nehru Place, New Delhi.

by Madhavi Makkapati

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