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Survey of property rights and conditions of access to genetic resources on the international level
to combat a broad range of environmental problems, including global warming, the destruction of
tropical forests, and the need to preserve the world's biological resources on which the survival
of mankind depends.
The Biodiversity Convention is less than a shining example of international rule making. 1t is fuzzy
in many places, inconsistent or contradictory in others. Commitments are generally prefaced by
the words "as far as possible and as appropriate", presenting not more than best-efforts pledges.
Yet, few disagree with the basic philosophy of the Convention. If conservation of biodiversity is
for the common good, all should share in the burden according to their capacity. The Convention
attempts to balance the interests of the South and the North: essentially, developing countries
agree to conserve their genetic material and make it available in exchange for developed country
financing of the cost of conservation, and for allowing developing countries access to the relevant
technology and a share in commercial benefits. Its key importance will be in providing a
framework in which further negotiations can be conducted.
These are the key features of the Convention on Biological Diversity:
1) The Convention recognizes the intrinsic value of biological diversity of all life forms, and the
critical importance of conservation and sustainable use of plant genetic resources "for meeting the
food, health and other needs of the growing world population" (preamble).
2) The Convention requires its Contracting Parties, developed and developing, to conserve and
manage their biological resources. It establishes specific obligations to identify these
resources, monitor their status and conserve them, both in situ, in their natural habitat, and
ex situ, in genebanks and other storage facilities (articles 7 and 8). Members will report
periodically on actions taken and their effectiveness to the Conference of the Contracting
Parties held annually (article 26).
3) The Convention formally recognizes the sovereign control by individual nations over
biological resources on their territories.
4) The Convention requires industrial countries to allow and facilitate access to their
technologies on mutually agreed terms, but recognizes the primacy of intellectual property
protection as the limiting factor in any such release of technology: „in the case of technology
subject to patents and other intellectual property rights, such access and transfer shall be
provided on terms which recognize and are consistent with the adequate and effective
protection of intellectual property rights“ (Article 16.2). This principle is reinforced in article
19.2 which stipulates priority access" for developing countries to the results of biotechniology
innovations (not the innovations themselves) developed from their genetic resources; it again
requires that this be done on mutually agreed terms. There are no provisions for compulsory
licensing.
5) A key element in the Convention is a financial mechanism to be subscribed to primarily by the
developed countries. Its objective is to fund developing country expenses on conservation as
well as their access to technology. It can be drawn upon to pay for royalties.
6) Article 15.3 excludes from the Convention genetic material collected prior to coming into