Book Review : Protection of Himalayan Biodiversity – International Environmental Law and a Regional Legal Framework. By Ananda Mohan Bhattarai, Sage Publications, B1/I-1, Mohan Cooperative Industrial Area, Mathura Road, New Delhi 110 044, India, 382 pp, Price not stated
All geographical regions of the world have a role to play in the sustenance of humanity, but even here, there are some that are vitally important. The Himalaya, an extensive mountain range with unrivalled peaks, deep river gorges and fertile alluvial valleys, is one such.
The book under review devotes itself to the question of what legal framework would best serve the goal of protecting the resources of the Himalayan region, in particular its reservoir of biodiversity and traditional knowledge. The author was prompted to take up this enterprise by the fact that there is not enough discussion on all aspects of the issue. What is needed, he thinks, is an interdisciplinary effort to look at the ecological, economic, social and legal aspects of biodiversity conservation in the Himalaya. What he hopes to create with his work is a debate, which would persuade policymakers to launch suitable protection measures through law and regional co-operation.
Several countries have rich biodiversity resources that they must protect and use sustainably. At the global level, the foundation for such a conservation framework is laid by the Convention on Biological Diversity. It is an agreement that opened for member-party signatures in 1992-93, and aims to conserve biodiversity, and facilitate sustainable use through access and benefit-sharing.
The book provides detailed commentary on the legal basis for the CBD, its instruments, protocols and approaches, and their linkages in international law. It is this framework that nations use to secure the future of biological resources. Viewed against the backdrop of the Himalaya, a region that sustains vast numbers of people, the need for closer regional cooperation among the South Asian States stands out.
At the top of the list of issues in the Himalaya are problems affecting mountains. Bhattarai is disappointed that mountains, which cover some 26 per cent of the world’s land surface, get poor attention in international law-making. This should worry countries sharing the Himalaya and encourage them to collaborate on sound national and regional policies. Only such cooperation can, he argues, protect biodiversity and enable access and benefit sharing. Moreover, this can be achieved without compromising national sovereignty.
Beyond the basic need for legal frameworks to protect biodiversity and the interests of communities, the author examines a range of issues that are technical from the perspective of law. They also have serious economic and environmental consequences. He analyses the issues involved primarily from the prism of the CBD, but does include various other covenants, treaties and national experiences, including case law. The key topics he covers relate to access to genetic resources and benefit sharing, traditional knowledge, and biological resources vis-a-vis international trade laws. What emerges is revealing.
Take the case of protection of traditional knowledge. The CBD refers to this as “knowledge, skills, innovation, and practices of indigenous and local communities and people which is relevant for the conservation and sustainable use of biodiversity”. We learn through examples that traditional knowledge has substantially aided biotechnology research. Such community-based wisdom has flagged key properties of biological components, notably in plants.
The challenge is to ensure that all this work done by communities in safeguarding and testing the properties of biodiversity is recognised through legal instruments. Misappropriation of traditional knowledge by unauthorised third parties has, Bhattarai notes, caused indigenous people severe losses. He has illustrative, though not representative examples of such uncompensated appropriation – one of them is the Serendipity berry and Katempfe plants in Africa, which have low-calorie chemicals many times sweeter than sugar and which US entities helped themselves to, to generate big profits. They did not, however, feel obliged to pay anything to African farmers.
This brings us to the contentious issue of patenting of living organisms. Bhattarai provides a useful discussion of historical trends, including the difficulties faced by farmers in the United States under a corporation-focused, regressive patenting regime. The contrast becomes clear when their situation is compared with the more limited, pro-public approach to patenting in Europe. Here again, the case law tells the story, beginning with patenting of not just processes but living organisms in Diamond v. Chakrabarty, 1980 (in the US). The key issue, as the author narrates, is to reconcile the egalitarian, environment-friendly objectives of the CBD and intellectual property agreements, mainly Trade Related Intellectual Property Rights (TRIPS) to serve the interests of people and nature. This effort must accord priority to biodiversity, if the Himalaya is to be saved.
This book is clearly a welcome addition to the literature on biodiversity, international law, patenting of agriculture and living organisms, and sustainable development. Governments sharing the heritage of the Himalaya would certainly be interested in the gamut of issues that are likely to affect this sensitive region.