Traditional Knowledge in the Himalayas: A Call for an Exploration in Policy Discourse and the Need for a National Regulatory Framework
The present paper discusses an issue that has received large attention in the realm of Intellectual Property in South-Asian countries: the conflict between free trade agreements and people’s movement for conservation of traditional knowledge. Since the introduction of the TRIPS Agreement, its objectives have been under deep scrutiny as the rules do not fully accommodate the needs and concerns of the developing countries. At the centre of this controversy lies another Agreement, The Convention on Biological Diversity (CBD), which endeavors to address the issues surrounding the effects of trade on biodiversity and farmer’s rights. A direct contrast to the objectives of TRIPS, the conflict between the two remains unaddressed till date. Nepal is a signatory to both of these agreements.
Under the mandate of TRIPS, all the members have to either provide patent or legislate an “effective sui generis system” for the protection of plant varieties. By virtue of this compliance requirement, Nepal framed the Biodiversity Strategy policy document in 2002, which recognizes the need to protect farmer’s rights. However, the document falls short as there has been no strategy to effectively implement its provisions. Needless to say, Nepal is at the center of this discussion as it is rich in biological resources and it is imperative that the country take active steps to protect the valuable traditional knowledge of the country.
Owing to the fact that the indigenous communities of the Himalayan region have a wealth of traditional knowledge, the focus of this paper is on the increasing threat of a complete erasure of indigenous culture and traditional knowledge and a natural rise in the access to genetic biotechnological resources. In light of this, the author attempts to give a brief introduction to the concept of bio-piracy and will highlight the biological resources in the Himalayan region of Nepal that are most susceptible to exploitation by MNCs. Part II of the paper will analyze the current laws governing plant varieties in Nepal and will call attention to the shortcomings of the legislation, or the lack thereof. Presently, we only have the Plant Variety Protection and Farmer’s Rights Bill. Key features of the Bill will be analyzed, against the backdrop of the TRIPS agreement and the paper will harp on how TRIPS miserably fails to protect TK in developing countries.
Part III will then introduce CBD as an alternative to address the problems that plague IP issues in Nepal. It will trace the use of this agreement through an array of landmark cases and study the impact on South Asian nations. Ultimately, the author argues that, on policy grounds, application of CBD will highly serve as a tool to protect the rights of the indigenous community and will attempt to answer how developing countries like Nepal can meet the parallel objectives of both TRIPS and CBD. Inclination towards either TRIPS or CBD alone stifles debate. Therefore, it becomes increasingly important to elucidate upon varied reconciliatory approaches that can be undertaken to fit the sui generis system into a sustainable framework and arrive at a harmonious interpretation.