The Himalaya has always defied artificial demarcations of borders, yet the human initiatives so far have been cribbed and cabined by the narrow domestic motives.
It is against this backdrop that Dr. Ananda Mohan Bhattarai in his book “Protection of Himalayan Biodiversity” (Sage Publications India) to be launched in Kathmandu raises the need for a regional legal framework to save the Himalaya and its over 80 million people. The work takes a broader perspective on the protection of the Himalaya and strives to build regional partnership for saving its biodiversity which is so inextricably linked to the lives of its people and so crucial to the exuberance of the livelihoods of a larger humanity.
Like all other mountain areas, the Himalaya has for long remained neglected by the mainstream environmental discourses. The international environmental laws, and more particularly the legal regime based on the Convention on Biodiversity (CBD), has
only very recently included mountain biodiversity in the thematic areas of discussion. A legal or policy regime capable of holistically addressing the resource and livelihood issues in the Himalaya is yet to evolve. While initiatives to protect mountain areas such as the Alps, the Andes, and Carpathians are already in place, very little attention has been accorded to the problems and challenges of the Himalaya.
The book not only brings the Himalaya to the center stage of regional environmental discourse but also discusses conflicts between the rich and poor of the world, the North and South, both at the CBD and the WTO regime, relating to bio-resources and associated traditional knowledge. This columnist is especially happy and interested to read and review this book since I was one of those who argued vehemently to make Nepal a member of World Trade Organization (WTO) mentioning the intellectual property of the Himalayan biodiversity that could be cashed in the world market after Nepal’s WTO membership.
Dr Bhattarai seems that he is really following the thread of the argument of how developing countries like Nepal can get benefits out of the WTO and intellectual property regime if it is negotiated and worked out properly in national and international arenas with the help of instrument like the CBD. It is not only Nepal but the developing countries that have natural resources of biodiversity should be capable enough to take advantage of their own resources, so portrays Dr. Bhattarai.
“The Himalaya is the home to the two great medicinal systems of Asia – Ayurveda and the Tibetan/Chinese medicine.” But the people in the eastern hemisphere of the globe did not claim patent rights of the knowledge to make the medicine, nor did they put it under any sort of intellectual property. Rather, they upheld the premise that the more you give the knowledge to others free of cost, the more it will be enhanced.
Most of the scholars of this part of the globe upheld the practice of “publish or perish,” meaning that whatever knowledge you have, you need to publish it or the knowledge will eventually be perished. But the Northern side of the globe appeared to be smart on this and put is upside down. They did not publish their knowledge until and unless they obtained protection of some sort of intellectual property on them. Once they have it so protected, they can charge royalty to anyone who wants to use their product based on the intellectual property. Proliferation of biotechnological research prospecting enabled the North to exploit the bio-resources of the biodiversity rich but economically poor countries, making considerable profit without paying back to the resource or knowledge holder. Asserting their sovereign right over the resources, the South termed it as “bio-piracy.”
The CBD 1992 is the result of comprehensive effort of the developing countries against “bio-piracy” and efforts for a proper utility of biodiversity-based knowledge system. The CBD rejects the “Common heritage” approach of the World Food Organisation (FAO) undertaking (1983) and asserts on the concept of sovereignty of states over natural resources. It pleads for adequate benefit-sharing of the natural resources and bio-diversity, whoever commercializes it. But circumventing the achievements of CBD, the North developed the Trade Related Aspect of Intellectual Property Rights (TRIPS) and inserted it into the WTO as its single undertaking.
The TRIPS is very strict on compliance of intellectual property regime, and each WTO member is required to comply with the TRIPS as one of the three pillars of WTO, the other two being trade in goods, and trade in service. This saga of contradictions between CBD and TRIPS is well delved into in this book. In addition, this book also includes the latest interaction and a sort of reconciliation between the technology-rich North and bio-rich South in at least three international forums in order to end the conflict between CBD and TRIPS. At this point, this book opens space for research in land, water, and forest related areas.
Dr. Bhattarai examines the laws of Bhutan, India, Nepal, Pakistan, and China. The countries in the Himalayan region have already taken initiatives to make laws, like Pakistan has enacted the Plant Breeders Ordinance in 2000 and has drafted legislation on Access to Biological Resources 2004.
The Indian Parliament has passed the Plant Varieties and Farmers Right Act 2001, Biodiversity Act 2002 and Rules 2004 and amended its Patent Act 1970 in 2002 and again in 2005. Similarly, Bhutan has brought its Biodiversity Act, 2003.
The author suggests harmonization of all these laws at the regional level to chalk out a regional framework for the protection of the Himalayan biodiversity. He suggests that such a regional framework should take consideration of geo-morphological, ecological and environmental characters. He also suggests some principles to be followed by such a regional legal framework like the principle of sustainable development, principle of international and intergenerational equity, principle of public trust, polluter pays principle, the principle of common but differentiated responsibility, accounting and payment for ecosystem services so on.
Some of the issues raised in the book are very relevant to the present Constitution making discourse of Nepal. The International Labor Organization (ILO) Convention 169, prior informed consent, farmer’s rights, traditional knowledge, community rights, rights of the aboriginal people. In gist, this book pleads for equal level playing field for all in the access to benefit from the sharing of the Himalayan biodiversity, and the book proposes as to what is to be done to accomplish the same.
The author argues, “The regional legal framework is one of them. Conservation of the biodiversity of the Himalayan region should be taken as a common concern of all countries, but a prioritized obligation of the states sharing the region.”
Thus, this book is a great contribution to this field, an immense resource to those who work in this area and global warning for the sake of the protection of our Planet Earth. It is a “must read” volume for those working in the areas of conservation policies and laws.
Work: Protection of Himalayan Biodiversity : International Environmental Law and a Regional Legal Framework
Author: Ananda Mohan Bhattarai
Publisher: Sage Publications, Delhi
Price: Rs. 1,760
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