The term ‘biodiversity’ been put together  by conservationists to stir popular interest in the diversity of life that exists on earth and the threats that, if not tackled, could lead to species loss and extinctions.  The protection of diversity came to the forefront of global consciousness with the adoption of the Convention on Biological Diversity (1992) but much before that the concern for species extinction was addressed in a number of instruments including the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES)  that was adopted in 1975.

The CITES Convention has attempted to deal with species under threat, ‘endangered species’ , by imposing regulations on the trade of such species and even banning such trade. The convention is based on an assumption that it is trade in endangered species that causes their extinction.

It is true that many body parts of endangered species are important ingredients for the production traditional medicines in some developing countries.  Because the trade in species is demand-led, it has been difficult for CITES to abate such trade. Instead a lucrative black market has been created for endangered species. Furthermore, the CITES convention addresses trade in endangered species and does not deal with habitat loss that is the main cause of species extinction.

The Biodiversity Covention has focused international attention not on the specific species of endangered large mammals but on the ecosystems that support biodiversity in all their complex interactions in the tropical forests, oceans, seas and watercourses. The Amazon rainforest has galvanized the attention of those who like to see forests preserved and resent their increasing disappearance to make room for human settlements.  The tropical rainforest has become the symbol of biodiversity protection.  The causes of biodiversity loss are often identified in a number of activities, legal or illegal, executed by companies, communities and individuals that attempt to secure profits or just survival by exploiting biodiversity resources, (cutting down forests, hunting endangered species, overharvesting the seas).  The root causes of biodiversity loss, though, have to do with poverty, land tenure issues, population changes and national policy failures.

Forests and other biodiversity rich areas contain plant species that could be used in the production of exotic products including pharmaceuticals. Indigenous peoples that live in rain forests often have knowledge that if exploited and furthered on could lead to breakthroughs in science.

The Biodiversity Convention was adopted out of concern that developing countries that are rich in biodiversity have resources that, if exploited, could become a source of foreign exchange, the “green gold” that could potentially provide the exit from poverty. Seeds of plans that were previously free access have been placed, therefore, under restrictive access legal systems.

Companies and scientists that would like to experiment with plant genetic resources must now obtain the consent of the country of origin of the resource before engaging in bioprospecting in that country. Companies that have used biodiversity  resources without the consent of countries of origin of such resources have been accused of biopiracy.  Indigenous groups are often enraged when knowledge they have accumulated for years is considered free access knowledge while they have to pay large sums of money for products made by using their knowledge.

Developing countries often consider it unfair that biodiversity resources are seen as open access resources while bio-engineered species varieties are protected under increasingly stringent intellectual property rights systems.  The aim of Biodiversity Convention is to ensure that some of the revenues made through the exploitation of natural resources are transferred to countries and peoples that have preserved those resources and have generated some of the knowledge about them.

The Biodiversity Convention provides generally for financial payments to developing countries for resources extracted in their territory and further used. However, the specific rules that should determine the ownership and transfer of germplasm resources have yet to be set creating uncertainty and unpredictability in international transactions.

The controversy over who owns biodiversity resources and, therefore, who should profit and benefit from them has affected food security.  Many food varieties (varieties of wheat, rice, potatoes) are today preserved in international and national gene banks. These resources were conceived till recently as free access resources for researchers who would like to experiment with them or for countries that faced situations of food distress when varieties of seeds were totally destroyed during wars.

The Treaty on Plant Genetic Resources for Food and Agriculture was adopted in 2001 after many years of negotiations.  The treaty respects the tenets of Biodiversity Convention that plant genetic resources are not free access resources but at the same time attempts to generate a regime that is not too restrictive on access.  A too restrictive access regime could preserve the ownership of a resource but it would certainly also freeze innovation and experimentation with germplasm resources.  The treaty proposes a standard Material Transfer Agreement to regulate the transfers of germplasm.  The Material Transfer Agreement provides,inter alia, that a recipient that commercializes a product  that incorporates a material accessed from the multilateral system must pay to a trust fund the equitable sharing of benefits arising from commercialization.  The purpose of the trust fund is to provide compensation for the farmers of the developing world.

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity is a supplementary agreement to the Convention on Biological Diversity. It provides a legal framework for the implementation of  the fair and equitable sharing of benefits arising out of the utilization of genetic resources.