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The Global South as the Key to Biodiversity and Biotechnology-A Reply to Prof. Chen

March 2002

Citation: ELR 10358

Author: Srividhya Ragavan

This Dialogue seeks to respond to Prof. Jim Chen's recent Article in the Environmental Law Reporter, Diversity and Deadlock: Transcending Conventional Wisdom on the Relationship Between Biological Diversity and Intellectual Property.1 In that Article, Professor Chen highlights the role of the Convention on Biological Diversity (CBD)2 in protecting biodiversity. This Dialogue argues that the CBD is an inherently ineffective mechanism to protect biodiversity. It disagrees with Professor Chen's argument that the CBD provides for access to technology and wealth transferred to the global South from the global North.3 In his Article, Professor Chen concludes that contrary to the "fear" of the North, the CBD promotes trade and facilitates the acquisition of technology by developing countries from the developed world.4 This Dialogue highlights the gaps in the CBD and challenges its capacity to conserve biodiversity. It demonstrates that in practice the CBD actually precludes the flow of benefits to the South. The CBD works in tandem with the other international treaties, particularly the annex on Trade-Related Aspects of Intellectual Property Rights (TRIPS),5 and the International Convention for the Protection of New Varieties of Plants (UPOV)6 to facilitate proprietary protection over biotechnology. Contrary to Professor Chen's conclusions,7 TRIPS and the UPOV concern themselves with neither biopiracy nor the flow of technology to the South. This Dialogue concludes that while the active participation of the South is the key to protection of biodiversity and prevention of intellectual property piracy, these goals will be hard to come by unless there is fairness of treatment for the South in the various conventions.

The author is currently studying for an S.J.D., with an emphasis in patent law, at George Washington University. She was formerly a faculty member at the National Law School of India University, where she headed the school's Center for Intellectual Property Rights. She sincerely acknowledges the encouragement by Prof. Jim Chen to write this Dialogue, and thanks him for his invaluable comments, insights, and guidance.

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