Bengaluru: Laws made to safeguard the world’s diverse flora and fauna from exploitation have backfired, according to a recent report signed by 172 people from 35 countries. The legal fences around biodiversity research are so strong that it even thwarts basic research and international collaborations. The remedy, the signatories have argued, is a separate agreement to ensure fewer restrictions on academic research.

These country-specific laws stem from the Convention for Biological Diversity (CBD), a treaty signed by 196 countries that came into effect in 1993. The goals of the treaty were to conserve biological diversity, ensure development that leads to sustainable use of these resources and ensure any benefits that arise from using these resources are shared fairly.

India, a signatory to the convention, enacted the Biological Diversity Act (BDA) in 2002 to comply with the requirements of the CBD. Among other things, the Act stipulated that people or institutions that are not residents of India need to get prior approval from the National Biodiversity Authority (NBA), an agency set up in keeping with the obligations of CBD, before using any biological resource or knowledge. The requirement remains the same whether it is solely for academic research or for commercial use, although exceptions are granted in some cases.

Another problem aspect of the CBD is the rules regarding access and benefit-sharing, with the aim of making sure that local populations and countries with biologically diverse genetic resources are not exploited by foreign agents. This part of the convention was architected through a supplementary agreement called the Nagoya Protocol, which came into effect in 2014 and of which India is a party.

Percolating distrust

Although these are well-intentioned steps, the principal authors of the new report argue that they have created a set of laws that makes it prohibits researchers from obtaining samples or accessing bio-resources for non-commercial research. This is because it has become more difficult to obtain permits and approvals in many countries in South Asia, South America and East Africa, including places such as India and Brazil.

“There is a large misconception among [the] general public as well as policy makers that by protecting a few charismatic taxa or a few forests, biodiversity can be conserved,” Priyadarsanan Dharma Rajan, who studies ecosystems and global change at the Ashoka Trust for Research in Ecology and the Environment, Bengaluru, and one of the authors of the study, told The Wire. “But conservation is more complex, which demands strong research based evidence.” He stressed the importance of why it is necessary to have a regulatory regime that is conducive to such research – particularly studies documenting unknown or rapidly disappearing species. According to the authors, about 20% of the total species on Earth are in danger of extinction. Even other studies have prompted concern that Earth is undergoing its sixth mass extinction at the moment.

Forests and the animals they harbour have generally been considered resources shared by all the people on Earth. However, the enactment of agreements such as the CBD and the Nagoya Protocol have enforced boundaries such that national governments now have the sovereign rights to their access and use. In countries where national science policies are not strong, this has resulted in a gap between biodiversity researchers and the laws, making research difficult. A few nations, such as Costa Rica, a country with rich biodiversity, have managed to find the right balance. The Costa Rican biodiversity law has in fact been hailed as a model for other nations.

But several others have faltered. For example, in India, an international collaborative project to study insects in the Western Ghats never took off because the Indian NBA did not give the necessary okays as mandated by the BDA. Specimens were to be sent abroad for identification and then returned – but the approvals never came through as the government remained concerned about biopiracy.

As Sumanta Bagchi, an ecologist at the Indian Institute of Science, Bengaluru, who was not associated with the report, said “Given the baggage of history and political experiences, it is not surprising that general distrust spills over into biodiversity issues, and countries want to limit foreign influence.”

Alluding to this and similar barriers, a 2008 article in the journal Current Science coauthored among others by Rajan stated, “Legislations like the BDA are anachronisms in this flat, liberalised world, where India seeks foreign collaboration even in strategic areas like atomic research” and that it “shackles intellectual freedom and scientific enquiry … against the basic tenets of democracy.” The Act’s effects have also been implicated in research misconduct as a result.

A new agreement?

Another facet of the CBD the authors question is the benefit-sharing stipulation. One of the most touted examples of this in India is how a tribal community in Kerala, the Kani, have benefitted financially from sharing their knowledge of a plant called arogyapacha, which grows in the Agastya Hills the state and purportedly reduces fatigue and boosts immunity. Researchers studied the properties of the plant and invented a method to make a drug from it, which was then licensed to a drug company in 1995. The benefits from the commercialisation were shared with the Kani a long time before the BDA was formulated.

However, a deeper look revealed it was fraught with several issues. Although the Kani could grow the plants, the Kerala state forest department prohibited them from taking the plants out of the forest for selling. If the plants or leaves could not be sold, there would be no raw material to make the drug and no money for the tribal community. In addition, some among the tribe believed the plants were part of their traditional knowledge and that should not be sold, resulting in internal strife.

Because of such issues with implementing the CBD, the authors argue that a separate treaty under the CBD is required – one that would separate commercial from academic research and enable greater access and freedom to use bio-resources, and encourage instead of stifle international collaborations by reducing the red tape. They write, “Access has to be open when the benefits are in the public domain and the providers of the resource are free to make use of the benefits like anybody else.” In case the benefits are privatised intellectual property rights, bilateral agreements could help.

The International Treaty on Plant Genetic Resources for Food and Agriculture, a.k.a. the Seed Treaty, could serve as a model here. The treaty has a multilateral system for sharing genetic resources related to food and fodder, avoiding the need for bilateral agreements like the Nagoya Protocol.

However, Sudhir Kochhar, former national coordinator of consortia-based research financed by the World Bank at the Indian Council of Agricultural Research, does not agree. “Law can provide only umbrella cover as already [existing] in Articles 16 to 19 of the CBD,” he said, “and only those using it have to adapt themselves to save [themselves] from scorching heat or torrential rain, as the case may be, while innovating [with] biodiversity and genetic resources.”

How the different signatories choose to regulate and administer their national laws will determine the freedom available to researchers and companies. “This is why I do not wish that researchers get confused by agreeing with the authors’ view that the law needs to be explained further with another protocol or treaty to enable undertaking unhindered research,” Kochhar continued. Instead, “I am in for letting them explore new ways and means for lawful cooperation and collaboration in research within the umbrella space, preferably through some voluntary code.”

It is not easy finding the right balance between protection and freedom, even if Costa Rica may have done it. Like Bagchi said, “As a corollary, one can also wonder about the counterfactual argument – would we have more biodiversity research if there were no CBD?” There is no simple answer to this.

Lakshmi Supriya is a freelance science writer based in Bengaluru.