1. b.

The protections offered by intellectual property rights (IPR) in the protection of

biological diversity
Ans. The biological diversity is a backbone of life on earth and sustainable development. The
current property Rights (IPR) the regime is encouraging exploitation of seed development,
monoculture, protection of recent plant varieties, microorganisms, and genetically modified
organisms. Therefore, our wealthy biogenetic diversity is being scoured irreversibly. we tend to
resolve a path to create another approach that will bring a balance in between formal intellectual
property (IP) system and sustainable aspects of diverseness. Mainly the developing countries are
mostly equipped with biotic diversity these nations has vast biotic resources which are also used
by the even the developed nations as they lack in biotic resources but equipped with highly latest
technologies but as it results the flow of genetic information and mainly by patents and Plant
Breeders Rights Intellectual Property Rights (IPR), because the term suggests, are meant to
be rights to ideas and knowledge, that are employed in new inventions or processes.
The impact of IPR is thus monopoly over industrial exploitation of the concept /information,
for a restricted amount of time by
1. Patents to provide property rights on an invention, allowing the patent holder to exclude
others from making, selling, or using the invention in the biological variation in the
developing countries
2. A trademark is a word, phrase, symbol, or design that distinguishes the source of
products (trademarks) or services (service marks) of one business from its competitors to
qualify for patent protection, the mark must be distinctive.
ETC. are some of the protection offered in IPR to the biological diversity. It protect the
biological diversity from biopiracy as we know a commonly known case of basmati rice
which is a biological diversity of rice crop found in India but patented by U.S based
company.

c. Relationship between CBD and TRIPs

Ans. The interrelationship between CBD or the Convention on Biological Diversity (CBD) and
Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs) remains disputed and it
is an important issue in Doha round. The developing countries who have a vast variety of and most
biological resources, but still they lack the mechanism to protect them. WTO or World trade
organization promotes the concept of rights and property and applies through the TRIPs but the
TRIPs does not operate freely concerning IPRs and biogenetic resources the relationship are
purported conflicts between TRIPs and the CBD, which operates under the United Nations
Environment Programme. The TRIPs serves which aims to protect the intellectual property, the
CBD aims to conserve biological diversity while ensuring nations hold jurisdiction over their
biological resources and receive benefits from the IPRs that are resulting from their use. Developed
nations however looked to maximize access and rights to biogenetic resources while minimizing
benefits and transfers. Indeed, this continues to remain the basis of conflicting interests. It is also
important to note that the CBD lacks an enforcement mechanism provided for in TRIPs TRIPS
Agreement is indifferent to acts of biopiracy and therefore result in general conflicts with the CBD
as the CBD is implemented before the TRIPs due to there are many contradictions and it cannot
be implemented jointly. The TRIPs do not protect a person for demanding the patent rights on
genetic resources (GR) and Traditional Knowledge (TK) that are under the sovereignty of the
country of origin. The CBD and TRIPs had played a very crucial role to protect the biological
resources in the many developing countries such as India.

2. Please Read the following statement: “International courts are the sole recourse when national
courts are unable to accept cases based on grounds of extraterritoriality or lack of national
jurisdiction. Furthermore, international tribunals are better positioned to oversee and protect
emerging international environmental rights, such as the right to information about polluting
activities taking place in a neighboring state. An international judiciary also may exercise control
over a nation’s activities, which adversely impact the environment of other nations or the global
commons. In addition, international judicial control might stand in for inadequate national action
in nations where the rule of law does not prevail.”
a. List out all the international judicial bodies their role and functions. Can an International
judiciary exercise control over a nation’s activities?
Ans. The list of some international jurisdiction bodies is given below
International Court of Justice- Handles and addresses the cases or issues that are related to
environment law and the areas where Environmental Impact assessment is very much required
International Tribunal for the Law of the Sea this judicial body has been established under United
Nations Convention on the Law of the sea (UNCLOS) as one of the choices accessible to the
Parties to the Convention for the mandatory settlement of disputes related to the interpretation or
application of the Convention. It regulates all kinds of issues related to ocean and its resources
and includes, among others, such matters as fisheries, archipelagic States, maritime delimitation,
regime of islands, protection and Multilateral Environmental Agreements and Dispute Settlement
Mechanisms -195- preservation of the marine environment, marine scientific research. That is why
UNCLOS is often referred to as a “comprehensive constitution for the oceans”. It is not only for
the states, but it is also open for the organizations to become parties
WTO Dispute Settlement Panels solves matters related to environment and trade but mostly the
cases related to the international trade.
Permanent Court of Arbitration (PCA) its role is to resolve the disputes related to the services to
international community. India is a party of the PCA as per the Hague Convention on 1899.
The international judicial bodies can resolve the dispute in a non-controversial manner but it is the
responsibility of the nations government that how they implements the decision or advice given
by international judicial bodies. They give the many vital modes of unhostile settlement like
negotiation, mediation, conciliation, sensible offices etc. States need to resort to those means that
of dispute settlement. But no doubt the international judicial bodies can control the nations
activities but it may adversely impact the nations as mentioned above because it depends that how
these decision may effect on a nation.
b. Discuss the various case studies where international courts have exercised their control.
Ans. The MOX Plant Case, (Ireland v. United Kingdom), concerning to the harmful effects on the
marine environment of the Irish Sea resulting from the extension of a nuclear plant. The Tribunal
stressed, “the duty to co-operate is a fundamental principle in the prevention of pollution of the
marine environment”. Further, it also stated that prudence and caution required that the Parties
exchange information concerning risks or effects of the operation of the plant ITLOS make an
order to arrest of vessels and crews. Within the Barcelona Traction it publicized the principle of
obligation erga omnes. This the principle may become the idea for developing obligations States
owe to the whole the international community in world issues like ozone depletion, global
warming, pollution of the high seas, and depletion of biological diversity. In its Judgment within
the Gabcikovo-Nagymoros Project case (Hungary/Slovakia) of 25 September 1997, the Court all
over again touched upon a variety of vital environmental problems. It initial noted the observation
of the international law Commission with relation to State observe that "it is primarily within the
last 2 decades that safeguarding the ecological balance has returned to be thought of associate
degree "essential interest" of all States. " The Court recalled during this association its own
observation on the regard to lean to the obligations of States regarding environment within the
Case on the lawfulness of the Threat or Use of Nuclear Weapons. More specifically, the Court
self-addressed Hungary’s competition that it had been entitled to terminate the 1977 accord with
the geographical region as a result of new needs of international law for the protection of setting
precluded performance of the treaty. during this association, the Court noted that neither Party
contended that new peremptory norms of environmental law had emerged since the conclusion of
1977 treaty within the absence of that there was no case created bent override or ignore the
obligations below the 1997 accord. On the opposite hand, any freshly developed norms of
environmental law relevant to the accord might be incorporated into the accord, but solely by joint
agreement.

3. “The protection of environment had been and still is one of the primary concerns for India.”
Some international conventions exerted great influence on environmental policymaking
leading to an amendment of the Constitution, passage of important legislations such as the
Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control
of Pollution) Act, 1981 and creation of institutions such as Central and State Pollution
Control Boards for implementing the provisions of the Acts. How far these amendments
and creation of institutions have proved fruitful in guaranteeing environment protection in
India? Support your answer with some recent case studies.
Ans. The creation of various laws and articles or clauses in the constitution such as Article 48A
and 51A(g) which comes under the Directive Principle of a State Policy as well as the
Fundamental Duties of every citizen of country and other various laws as state in the questions
and other various important and strict law that are passed by our leaders to conserve the
environment there are various hallmark decisions that are given by courts and higher courts
Supreme Court of India in “Sachidanand Pandey v. State of West Bengal AIR 1987 SC 1109”
stated that the Court are bound to consider that cases with the abovesaid articles whenever any
case is related to Environmental problem which is brought into the court.
The Article 48A states: “The State shall endeavor to protect and improve the environment and to
safeguard the forest and wildlife of the country.”
The Article 51A(g) binds the citizens with a duty upon every citizen of India to protect and improve
the natural environment and confers right to come before the Court for appropriate relief.
The Apex Court in “Damodar Rao v. S.O. Municipal Corporation AIR 1987 AP 171” held that the
environmental pollution and spoliation which is slowly poisoning and polluting the atmosphere
also related to the violation of Article 21 of the Indian constitution which is related to the rights of
a person. Another hallmark decision on the writ petition filed by the activist and as a advocate
M.C. Mehta in the Supreme Court of India which highlighted that the pollution of the Ganga river
by the hazardous industries located on banks of Ganga River. Justice ES Venkataramiah gave a
memorable or we can say a milestone judgement given in “M.C. Mehta vs. Union of India AIR
1988 SCR (2) 538” ordering the closure of polluting industries and factories near Kanpur and near
to the banks of Ganga River. In this judgment it was observed that just like an industry which
cannot pay minimum wages to its workers and do not setup a primary treatment plant as per the
provisions of Water Act 1974 cannot be allowed to exist cannot be permitted to continue to be in
existence. We know about the pride of India Taj Mahal, which was facing threat due to high toxic
emissions from Mathura Refineries, Iron Foundries, Glass and other chemical industries. The acid
rain was a serious threat to the Taj Mahal and 255 other historic monuments within the Taj
Trapezium.
The Apex Court in “M.C. Mehta vs. Union of India (Taj Trapezium Case) AIR 1987” delivered
its historic judgment in 1996 giving various directions including banning the use of coal and cake
and directing the industries to Compressed Natural Gas (CNG) as per the provisions of Air Act
1981. But still due to lack of implementation the pride of India continues to face the same problem
till date. With these above hallmark decisions made by our judicial body of our country has shown
a positive and a strict step towards protecting the environment as well as with increasing
technology and with the internet revolution nowadays people is also becoming aware about
environment and considering towards its betterment to protect our future generation no doubt that
various laws and acts has provided the legal protection and a backbone to the environment and
because of the awareness programs the young generation also become aware about the various
problem of environment and this is also become more possible with the efficient implementation
of the provisions of the above mentioned Acts and the Articles of constitution.

4. . The Convention on Biological Diversity (CBD) is available at the following link:

https://www.cbd.int/doc/legal/cbd-en.pdf

(i) Read Articles 8 (In Situ Conservation), Article 9 (Ex Situ Conservation) and Article 10
(Sustainable Use of Components of Biological Diversity). What purpose do these
Articles serve within the CBD? How are they related to each other and how are they
supposed to work together to enable the implementation of the CBD?
Ans. The CBD is meant for the conservation, fair and sustainable use of biological resources
(CBD) was opened for signature at the Earth Summit in Rio de Janeiro on 5 June 1992 and
entered into force on 29 December 1993. In situ conservation means the conservation of
biological diversity within the are and in there natural habitat by making protected areas and
reserves to improve there survival such as in India we have made reserve parks for the
conservation of tiger and keeps a regular monitoring of there population to judge to the
improvement in the population these area are protected from hunting or any other human
intervention which can disturb the population of a species or a community. Ex Situ
conservation as per the Article 10 of CBD provides the provision to research, protect and
improve the breeding of a species to increase the population by giving the artificial conditions
and favorable conditions required by the a particular species to flourish and breeding as well
as for the research purposes. Article 10 provide procedure or provisions or guideline for the
conservative use of biological resources as well as to protect and improve the population of
biological diversity in the areas where it is reducing due there overuse or due to any other
anthropogenic reasons this articles also provide guidelines to the government of various levels
to establish a mechanism to ensure the conservative use of biological resources. These all terms
used in the above articles are dynamically connected. We know that Ex situ conservation is
also related to the research or sometime it is become not possible to protect any species in the
area (In Situ) where they live due to various conditions or climatic changes due to which an
species variety cannot survive in that area in this case the species need to be conserved in the
ex situ conditions thus providing the species artificial environment which favor its growth as
well as with research studies making that species slowly adaptable to the changed conditions
or some species are also grown in lab condition for genetic engineering and for various
purposes such as we are currently very familiar with the word GM crops these are nothing but
hybrid crops which are derived from there ancestors but the difference is that these are now
genetically modified either to increase the crop yield or sometimes to increase the population
of the species which are becoming endangered but these biological diversity needs to be
protected with there efficient use or we can say conservative use which is defined in article 10
of CBD in order to protect their populations to protect them to become extinct by sustainable
use of biological resources all these terms are related and work together in order to protect and
improve the status of biological resources as well making a sustainable use of the biological
resources with it fair and sharing benefits of the resources but these required a strict
implementation of the CBD guideline in order to ensure the sustainable and conservative use
of biological resources and most important to ensure about the misuse of biological resources
or its fair usage to maintain the ecological balance among the living biota.

(ii) Article 14(2) reads: The Conference of the Parties shall examine, on the basis of studies
to be carried out, the issue of liability and redress, including restoration and
compensation, for damage to biological diversity, except where such liability is a
purely internal matter. What are the powers provided to the Conference of Parties; what
are the limitations? How do these benefits aid in the implementation of the CBD, and
how do the limitations prevent the Conference from working on issues of CBD?
Analyze in your own words.

Ans. The Conference of Parties (COP) – The COP is that the body that brings along all States
and Regional Organizations that have ratified the Convention. it's mandated to review the
implementation of the Convention. a lot of specifically, it reviews progress underneath the
Convention, identifies new priorities to be pursued, sets work plans for members, amends the
Convention, creates professional informative bodies, reviews progress reports by member
nations and collaborates with different international organizations and agreements. The COP
has initiated work on a variety of thematic work programmes addressing agriculture diversity,
forest diversity, island diversity, inland water ecosystems, dry and sub-humid lands and
mountain diversity.