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From Global Enclosure to Self Enclosure:
Ten Years After - A Critique of the CBD and the "Bonn Guidelines"
on Access and Benefit Sharing (ABS)
Issue: Since 1994, the Convention on Biological Diversity (CBD) has been promising "benefit sharing"
to Indigenous Peoples in return for access to biodiversity (i.e., bioprospecting). During these tenyears, Indigenous Peoples and farming communities have worked long and hard to realize this goal.
Government's response has come in the form of the so-called "Bonn Guidelines." These guidelines turned the CBD into a global enclosure system instead of a benefit-sharing mechanism and they haveundermined the historic resilience of Indigenous Peoples by encouraging curtailment of their customary systems of resource-exchange. This Communiqué offers a short introduction to biopiracyfollowed by a critique of the CBD and, specifically, of the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization and the related Cancún Declaration of Like-Minded Megadiverse Countries.1 Impact: Although not legally binding, the Bonn Guidelines are meant to "operationalize" the
convention's ABS provisions, providing a template for national legislation. The CBD awards
sovereignty to the State and offers no legal right to Peoples and communities. The Bonn Guidelines assume ABS can be achieved through contracts and "germplasm ownership." The net effect is toencourage biopiracy and discourage customary forms of knowledge and germplasm exchange.
Biodiversity is of primary value to Indigenous Peoples and rural communities. Anything thatconstrains customary exchange fundamentally harms their wellbeing. If these policies prevail, then ETC believes that all bioprospecting will unavoidably be a form of biopiracy, regardless of its "legal"status or level of compliance with the CBD.
Fora: The Seventh Conference of the Parties (COP 7) to the CBD, February 9-20 (Kuala Lumpur,
Malaysia), will be an opportunity for governments to review the history of the CBD and its approach
Policy: After ten years, it is clear that the CBD is not a magic bullet for the conservation of biological
diversity nor does it guarantee the improvement of the rights and roles of Indigenous Peoples andcommunities. The communities will have to strengthen their own resilience strategies outside the Biodiversity Convention. At COP 7, governments must not undertake work on a legally bindinginternational regime on access and benefit sharing based on the Bonn Guidelines. COP7 should instead reformulate the Bonn Guidelines and focus on ways to help strengthen Peoples' resilience and their resistance to biopiracy. Governments should work to establish non-proprietary systems ofbenefit sharing, implementing one of the options posed in the Bonn Guidelines, the creation of a fund supporting the conservation and development of biodiversity. With monies from governments, theglobal biodiversity fund would act as an endowment advancing the interests of Indigenous Peoples and other biodiversity actors without attempting to reduce their contributions to quantifiable ETC Group, P.O. Box 68016 RPO Osborne Winnipeg MB R3L 2V9 CANADA
Tel: 204 453-5259 Fax: 204 284-7871 www.etcgroup.org
Introduction: What is Biopiracy? More than
biopirates' most frequent modus operandi is ten years have passed since RAFI (now ETC intellectual property (e.g., trademarks, patents, Group) coined the term biopiracy. Some Plant Breeders' Rights), asserted to gain understand biopiracy to be the act of collecting monopoly control over genetic resources that biological material from a local group of people were formerly in the control of farmers and without the consent of those people or when there is no agreement to share the financial communities. The resulting privatization of profits that may derive from the collected biological resources and related knowledge material. Some of those who share this view of biopiracy, even though this process may be protection as a useful weapon to combat it, with legal according to national law and though it hopes that the appropriating party will be may conform to a signed "bioprospecting legally-bound to share profits at the local level.
agreement," and even if it includes a so-called This narrow definition of biopiracy - based in the context of Intellectual Property - allows corporations to claim that they, too, are victims "Contractual benefit sharing is like waking up
of biopiracy. According to the agricultural in the middle of the night to find your house
biotechnology corporations, for example, when being robbed. On the way out the door, the
farmers save patented seeds from one year's thieves tell you not to worry because they
harvest to the next year's planting without promise to give you a share of whatever profit
paying a royalty to the corporation, that is also they make selling what used to belong to
you." - Alejandro Argumedo, Quechua activist
Over ten years have passed, too, since the CBD voluntary guidelines do nothing to prevent IP Convention's stated aims are the "conservation and other means of privatizing resources, they of biological diversity, the sustainable use of its remain inadequate to protect the integral rights components and the fair and equitable sharing of farmers and indigenous and traditional of benefits arising out of the utilization of peoples and, therefore, all bioprospecting genetic resources." Despite these laudable aims unavoidably falls into the category of biopiracy.
and the sincere efforts of Indigenous Peoples, The ancestral tradition of sharing knowledge and freely exchanging seeds, plants and other government delegates, the Convention is, in resources - which has formed the very basis of fact, less about protecting the wealth of nature diversity - may become a dangerous activity and the custodians of biodiversity than it is about protecting the wealth of the few powerful economic actors in the gene business. Rather bioprospectors, it is possible they will lose control over those resources. Given that the Convention's particular notion of "benefit sharing" and the interpretations that have been dependent on biodiversity, losing control over formulated subsequent to the Convention's their own genetic resources is one of the biggest adoption have provided a legal framework for threats to Indigenous Peoples and traditional plundering resources and knowledge through the legitimization of intellectual property on life through the patent system, it is likely that a forms. As importantly, the CBD's endorsement community that once had access to the resource of bilateralism through contracts has also will no longer have the legal right to use it or legitimated and facilitated biopiracy.
may no longer be able to afford to buy it. If privatizing the resource does not limit the For ETC Group, and for many groups in the community's access to the resource (e.g., global South, biopiracy refers to the privatization because the resource "owner" deems it too of genetic resources (including those derived from plants, animals, microorganisms, and community at the local level), a fundamental change has taken place, nonetheless: what had maintain, embody, develop, breed or otherwise been a common and routine part of everyday create, foster or nurture those resources. The life is now subversive and illegal. In addition, the privatization of water, services, and other the cultural wealth lost to the market system vital resources means that rural communities when members of an indigenous People or a may find themselves in a situation where all of rural community begin to see their traditional their everyday actions are illegal and/or knowledge and the nature around them - not possibly subject to fees or prosecution.
merchandise to sell before their neighbors get An equally dangerous impact of biopiracy is "Once we start looking at organisms as bank
participate in commodifying and selling the accounts, then we are missing the entire view
commons and collective heritage, pitting them of what is in front of us. Curiosity of the
against the same People or inhabitants of the living world ends and so does the meaning of
same region. In this case, the contract not only being here." - Ricardo Callejas, biology
legitimates the robbery, but also erodes the professor, University of Antioqua, Medellin, resilience of communities or peoples. Consider Closing In
National Enclosures: Late 18th century European governments nationalized and sold common land
("the commons") to wealthy landlords. By birthright, the commons had been open to the entire community, which lost access to grazing lands, medicinal plants, non-cultivated foods and fuel wood.
This drove millions of Europe's Indigenous Peoples into factory towns or to emigrate overseas. Vast reservoirs of traditional knowledge and biodiversity were lost. In the 19th century Europe's enclosurestrategy spread to many of their colonies with the same devastating results.
Corporate Enclosures: Even as land enclosure was taking place in Europe, a new system of
knowledge enclosure (intellectual property) was underway. In Britain, between 1770 and 1850 almost
12,000 patented inventions were financed by the wealth stolen through land enclosures. Today the patent enclosure system has spread to all of biological diversity. Through life patenting and nano-scale patents, the material building blocks and processes that make everything in the world, including people and plants, are now being transferred to private hands.
Global Enclosures: The most sweeping biopiracy coup occurred when the CBD set the starting date
for national sovereignty over genetic resources at 1993. That meant that all the resources collected and banked in countries in the North (e.g., in botanical gardens, aquariums, zoos, etc.) - regardless oftheir source - belonged to the countries that housed them. The CBD, by asserting the sovereignty of a State over the genetic resources found within its borders, effectively encloses the genetic "commons"State by State and subverts the human rights of Indigenous Peoples and communities.
Self Enclosures: Although the CBD pays lip-service to the communities' role in access and benefit
sharing, this can be negated by national law. The pressure to conclude bilateral contracts withintellectual property provisions means that communities are encouraged to end customary systems of exchange, damaging their own resilience.
Beggar thy neighbour? Last year, an
Access and Benefit Sharing are not new. The
international chemical company informed ETC flow of exchange of genetic resources is as old as civilization, and it is one of the main contributors to the development of biodiversity and of food, medicines, clothes and many other themselves had insisted on confidentiality, even elements vital to the survival and well-being of though the corporation had preferred a more transfer of these resources is misappropriated, privatized or monopolized. The Dutch, for communities to keep the negotiations secret example, were not concerned about the benefit suggests that the communities had no exclusive of humankind, when in 1621 they destroyed rights to negotiate access to resources that were every clove and nutmeg tree on all save three (well-guarded) islands in the Moluccas. (As a neighbouring communities in the same region result, fully three-quarters of the plant diversity Biodiversity and genetic resources are of
Captain Terminator: Seed sterilization
primary value to local communities and
technologies are a jewel in the biopirates' anything that puts constraints on access and
free exchange fundamentally harms their
monopoly on plant genetic resources through well-being.
biological science. The aim is the same - to Following the trail of conquerors and travelers, increase profits - but the threat to biodiversity plant collectors from industrialized countries and to the survival of rural people is enormous: ventured southward throughout the twentieth an end to food sovereignty and locally-adapted century in search of valuable genetic material for agricultural plant breeding and formedicinal uses.5 In most cases, no money Is contamination by genetically modified
changed hands, no profits were shared, nor any (GM) DNA a kind of "biopiracy by
other kind of acknowledgement given to the occupation?" While we most often think of
biopiracy as a theft of peoples' or communities' selected, maintained and improved traditional genetic resources that are then privatized crop varieties or selected and made use of through intellectual property regimes, there is plants with unique properties. In more recent another kind of biopiracy-by-occupation where times, the process continued, fueled by the patented genetic material contaminates genetic enormous economic value of these resources.
material held by peoples and communities, For example, urging the US Senate to ratify the with somewhat similar results. In the case of CBD back in 1994 (which the US failed to do and still has not done), then-Secretary of State example, farmers' varieties have been altered Warren Christopher pointed out that foreign germplasm added over US $10 billion to the subject to "patent infringement" litigation. In (then) $28 billion annual maize and soybean the case of canola in Canada, not only has the plant been altered by genetically modified DNA, but also - in the absence of a Supreme With the evolution of IP, farmers are losing the Court reversal of two lower court decisions - right to use and develop plant diversity.
legal control of the plant variety is transferred Patents increase the control that institutional from the farmer to the corporation.8 Meanwhile, plant breeders have over plants, seeds and the burden of liability for contamination rests with the farmer rather than with the Gene Giant farmers' control over seeds and local plant whose product caused the contamination.
breeding. Today, under some national patent laws, it is illegal for farmers to save patented TK or TKO? Valuable chemical compounds
seed for replanting the following season. Why does this matter? Farmers have been selecting microorganisms can be more easily identified seeds and adapting their plants for local use for over 200 generations. Up to 1.4 billion people in the developing world depend on farm-saved knowledge (often referred to as Traditional Knowledge [TK]) to increase their chances of genetic diversity enables farmers to adapt crops finding active properties or 'hits' in the search suited to their own needs. Communities that for biologically active compounds. In a recent lose traditional varieties, developed over example, a researcher at the University of Bonn centuries, risk losing control of their farming (Germany) attempted to treat diabetic rats systems and they risk becoming dependent on using a medicinal plant that shamans in the outside sources of seeds and the chemical highlands of Mexico use to treat 'sweet blood.' Initially, the "scientific" research produced agricultural system adapted to a community and its environment, resilience in agriculture is studied the shaman's preparation of the plant and learned that its efficacy depends on its proper preparation. When the medicinal plant is mixed with maize and allowed to stand for a period of time, it becomes an effective drug So far, the hope has not been borne out.18 McClellan, new chemical entities approved by the FDA reached an all-time low of 21 in 2002 (42 were registered in 1996).19 Some speculate research.10 A recent study demonstrated that that the recent dearth of new drugs may be a reflection of the diminished interest in natural- commercial pharmaceuticals is also known and products drug discovery of the last decade…so it looks like we're going back to the rain forest.20 healers.11 It is estimated that the annual market for products derived from genetic resources in HapMap: Biopiracy is not limited to the
the pharmaceutical industry alone is between appropriation and privatization of plant genetic US $75 and 100 billion. 12 A 1999 study revealed resources. Biopiracy also includes the collection of genetic material taken from the bodies of pharmaceutical companies, natural products Indigenous Peoples. Because these communities contributed at least 10 percent and, in some are often insular and therefore more genetically cases, more than 50 percent to total sales.13 homogenous than are members of less insular Zocor, a cholesterol-lowering drug derived communities, pharmaceutical researchers have found Indigenous Peoples' DNA to be invaluable Merck & Co $6.7 billion in 2001, over 50% of the in the investigation of genetic predisposition to disease and, hence, in the process of drugdiscovery.
Is Biopiracy still an issue? The strategy of
relying on natural products and indigenous The International HapMap Project attests to the knowledge in drug-discovery research ebbs and ongoing demand for research samples of human flows. Natural product research is often seen as genetic material.21 The $100 million, three-year slow and costly and advanced technologies project is intended to map blocks of variation in such as combinatorial chemistry (the synthesis the human genome that are unique to distinct of chemical compounds as ensembles known as populations (the variant blocks are called 'libraries' and the screening of those libraries haplotypes). These genetic variations are believed for desirable properties) offer alternatives that to determine how people differ in their risk of disease or their response to drugs. The Project is funded by both the public and private sectors compounds that are potentially biologically and, at present, involves DNA samples from the active. Beginning in the early 1990s, some Yoruba people in Ibadan, Nigeria, Japanese in Tokyo, Han Chinese in Beijing and US residents products research programmes, though all of with ancestry from northern and western Europe the top pharmaceutical companies continued to engage in some natural-products discovery in- house or through subsidiaries.15 This is because Currently, there is only a 30-40% chance that a natural products have yet to be surpassed in drug will be effective for a particular patient and efficacy or profitability. A recent survey possible adverse reactions such as allergies have kept some potential blockbuster drugs from Institute revealed that 61% of the 877 small- getting regulatory approval. Drug efficacy and molecule new chemical entities introduced as tolerance are largely determined by a person's drugs worldwide during the period from 1981 genetic make-up. If the HapMap Project succeeds to 2002 can be traced to natural products.16 On in mapping the world's genetic variance by the other hand, for the same time period, not a population, it will be a major boon to the single de novo combinatorial compound was pharmaceutical industry. Drugs previously shelved due to risk of allergic reactions can be Federal Drug Administration (FDA) reforms resuscitated. "Personalized medicine" - for those the drug-approval process to help speed-up affluent enough to afford it, of course - will bring tremendous profits to drug companies, but the HapMap Project also raises serious unresolved proteomics (the study of proteins), genomics issues concerning intellectual property, genetic and combinatorial chemistry raised hopes that discrimination, the threat to privacy, and even the more drugs would be developed more quickly.
possibility of genetically-targeted bioterrorism.
IP vs. IP (Indigenous People vs. Intellectual
Property): Patents purport to provide legal
protection for inventions that have met thecriteria of novelty, utility, and non-obviousness, How, specifically, is Western science different judged against everything known before the from indigenous knowledge according to the invention, as documented in earlier patents or other published material (known as "prior assertion that Western science is less mired in art"). However, the distinction between the community and local concerns because it invention and discovery is, and always has devises universal explanations to phenomena, which result in insights that can be used for problem-solving in many different contexts.
The Latin verb, invenire - from which the Also, it is argued that Western knowledge is English words invent and invention derive - different from indigenous knowledge in its means simply to come upon, to find. Biopirates methodology. Theoretically, what scientists do claim to have 'invented' new pharmaceuticals or the plants they breed or genetically engineer.
experiment, systematic, objective, analytical The reality, most often, is that they have come and reproducible; science advances by building across their "inventions" by strategic looking rather than through their own contrivances.
contrast, indigenous knowledge is portrayed as Often, they make modifications to plants that no more than common sense or fraught with the unscientific notion of "belief." It is seen as Peoples and "improved" by institutional closed, non-systematic, not empirical and breeders or they simply isolate a compound lacking a conceptual framework that conforms that is well-known or known to traditional to ideas of objectivity and rigourous analysis.
healers (though perhaps not documented in Despite the insistence by biopirates that conventionally Western media, which would indigenous knowledge is inferior to Western establish the knowledge as prior art).22 If companies and individuals simply find their meaningful distinction can be made between products more often than they "invent" them, how are they able to acquire legal protection for products that belong to or were developed by There is a body of literature demonstrating that biopirates have found to distort the concepts of investigation and that it, too, is systematic and analytical and explains larger phenomena.24 Biopirates claim that most of their inventions There is no doubt that indigenous knowledge advances by building on previous knowledge.
screening, research and development, where The attempts to demonstrate that indigenous screening of up to 10,000 chemical compounds knowledge is "like" Western science, however, is necessary to yield a single potentially lets Western science maintain its privileged position as paradigm, model, and truth so that even those analyses attempting to demonstrate ingenious and creative - is not 'true' science, belonging to a different sphere of cognition knowledge do so by affirming the supremacy of from evidence-based, empirical science in both its methodology and outcomes and it is inferior to science. This a priori distinction helps justify valuable to biopirates, it is not recognized by irrelevant when it comes to seeking legal pointed out, "the notion of what is scientific to protection for specific processes or substances used by Indigenous Peoples. Those individuals 'unscientific' to explain traditional knowledge and organizations practicing biopiracy and systems has less to do with knowledge and using their booty in financially profitable applications attempt to erase the historical A Tale of Two Systems
Indigenous Knowledge is intuitive and imaginative, but it is not "science" according to some. It is based on luck, and desperation and it is sustained by myth and mystery. Western science is systematic, evidence-based, collegial, merit-driven and, well, What's in a name?
Systematic Experimentation and Cumulative Experience
What they say: The Western scientific filled with experimentation and testing.
written traditions. Science is not solely a matter of bigger notebooks or fasterinternet servers! Peer Review, Competition and Cooperation
What they say: Western Science is merit The community's peer-review process isdriven, protected by peer-review very efficient. If the innovation has merit, it will be used. If it doesn't - it won't be.
and thrives on a balanced combination of Each innovation stimulates collectivecompetition in excellence and cooperation in the cause of knowledge.
Principle is accepted in practice, within asystem able to evaluate, prevent, andwithdraw a new technology.
Publish or Perish/Produce or Perish
What they say: Stimulated by academic the results are easily visible to - and traditionally shared with - the community most able to utilize the new technology.
quickly as prudence allows. This leadsto a free exchange of the latestinformation for the benefit of society.
Of Macros and Micros
Oiling the Monopoly Machinery: Of course,
benefit-sharing agreements existed. Of course, companies plundered genetic resources before they have the power to continue doing it. But important, not only as moral legitimization, but also because they serve as "traffic lights" in the prior to the ratification of the CBD are included network of corporate competition by providing in this "sovereignty" statement: sovereignty, some kind of barrier to the claims of other according to the CBD, began in 1993. In other companies or even countries. And last but not least, the legalized instruments of biopiracy help convince victims that they, too, will gain. If happily ensconced in a botanical garden in the a signed contract promises that they'll get a share of the profits, then everyone can feel like resource to the same degree that Malaysia does.
Because Malaysia has no legal standing as the original "provider" of the resource, there will CBD: Good COP or Bad COP? The
be no benefits coming South if the plant turns Convention on Biological Diversity, which out to cure cancer and if scientists in the entered into force at the end of 1993, has been Netherlands develop it into the blockbuster hailed for having established in international drug-of-the-century before Malaysian scientists law the need for a "fair and equitable sharing of do. The botanical chess game that colonial benefits arising out of the utilization of genetic powers have played since the time of Columbus resources." The reality, however, is that the has finally been formalized, legalized and text of the CBD and later interpretations of the text formulated at subsequent Conference of theParties (COP) negotiations have upended the But beyond that, these genetic resources were CBD's stated aim. The CBD is not about equity not in the State's domain previously, and most but about facilitating legal access - mainly by importantly, they were not for sale. They were corporations from the North - to the genetic public and collective goods, exchanged and resources and knowledge of indigenous and shared, developed and nurtured by farmers other traditional peoples, mainly in the South.
The facilitation is furthered by the fact that the years for the welfare of their own communities strongly encourages bilateral deal-making and commercial exploitation of biodiversity.
resources may be present in more than one The implications of the concept of "benefit State, as eco-regions and traditional cultures do sharing" within the CBD cannot be fully appreciated if separated from this emphasis on geopolitical divisions. Modern States are often bilateralism. The CBD states that access to hostile to the Indigenous Peoples, farmers, genetic resources "shall be facilitated" (art. 15.2) fishing and other local communities living and that States are the designated entity within their borders. States have a poor record authorized to determine the conditions for this for respecting the rights of indigenous cultures access (art. 15.1) under an over-reaching claim so that further plundering will likely be that a State has sovereignty over the genetic perpetrated by Indigenous Peoples' "own" The apparently reasonable statement that States It is commonly believed that the CBD would have sovereign authority over their own genetic help prevent these abuses by recognizing the resources ignores the pre-CBD reality. The majority of the known genetic resources and consulted on the use of their resources and associated knowledge originated and is still knowledge, mainly through Article 8(j). Article present in-situ in the political South (roughly 8(j) states that: "Each Contracting Party shall, as 83% of the world's in-situ genetic resources and far as possible and as appropriate, subject to its in-situ technologies). However, thanks to the national legislation, respect, preserve, and march of conquerors and diverse "scientific" maintain knowledge, innovations and practices expeditions, more than 75% of all ex-situ resources (resources that have been collected embodying traditional lifestyles relevant for the and banked) are present in institutions such as conservation and sustainable use of biological diversity and promote their wider application microbial collections in industrialized countries of the North.26 All resources that were collected holders of such knowledge, innovations and has been used not only in relation to genetic practices, and encourage the equitable sharing resources, but also to obtain "consent" for of benefits arising from the utilization of such mega-projects with negative impacts, such as the sale of shared land and exploitation of other In fact, 8(j) could be a good article, but it hasserious flaws. The most obvious is the Bon-Bonn or Bonn-Bomb? The "Bonn
inclusion of the clause "subject to national Guidelines on Access to Genetic Resources and legislation," which appears throughout the text Fair and Equitable Sharing of the Benefits of the CBD (as well as other multilateral Arising Out of their Utilization" were adopted, agricultural and environmental agreements).
after several years of negotiations, at the VI The clause leaves it up to each State to enforce Conference of the Parties of the CBD in The the article, which, in many cases, renders it Guidelines are not revolutionary in theircontent - as the main points were defined in the Another shortcoming is that by apparently CBD - they do, in some cases, introduce recognizing "communities," it denies at the alarming elements that will further facilitate same time the wider concept of "Peoples" preferred by many First Nations groups. The indicates, they are a set of recommendations term "communities" suggests that there is one that provide a framework for bioprospecting easily identifiable actor (e.g., the representative contracts on genetic material (excluding human of a "community") who is authorized to negotiate on that community's behalf. In fact, "voluntary," they will very likely become a promote bioprospecting - the Secretariat of the universities, international conservation NGOs, CBD has stated that the Guidelines' unanimous etc. - has been to look for "cooperative" adoption by180 countries "gives them a clear communities willing to enter into contracts to sell their resources and/or knowledge, despite the fact that the same resources and knowledge compliance with the CBD in order to justify may be historically present and shared by many their resource privatization. These guidelines other communities and peoples within the same will make their work much easier. Despite the fact that they are not legally binding, the Guidelines will be seen by governments as a resources. Identifying "communities" as template for national legislation, which is the opposed to "Peoples" is a very useful tool to final step in the process of legalizing biopiracy.
facilitate the privatization of resources, and it 10 Wrong Things in the Bonn Guidelines on Benefit Sharing and 1 Good Idea
Text of the Bonn Guidelines
ETC Critique
1. "The present Guidelines are voluntary and were 1. The Guidelines are not legally binding. In the prepared with a view to ensuring their…voluntary present context, this is just as well. But a by-product of their voluntary nature is that anything in them thatcould potentially promote fairness and equity - suchas the statement that the "…use of geneticresources should not prevent traditional use ofgenetic resources" - can be ignored, while theGuidelines' position on allowing (and evenencouraging) intellectual property on geneticresources will be enthusiastically endorsed.
2. "Nothing in these Guidelines is intended to 2. The Guidelines reaffirm the CBD's declaration substitute for relevant national legislation." (I.A.3) that the authority to negotiate the commercializationof resources lies in the hands of the State. State "Nothing in these Guidelines should be interpreted sovereignty establishes the enclosure of resources to affect the sovereign rights of States over their at the national level, giving biodiversity actors only a "consultative status." In reality, these actors are "Competent national authorities…may, in dispossessed of their effective right to say no.
accordance with applicable national legislative, Governments can either look for other willing administrative or policy measures be responsible for communities or choose to ignore their wishes aftergranting access…"(II.B.14) 'consultation.' Often, national governments arehostile to the interests of the Indigenous Peoples "Relevant stakeholders should be consulted and living within their borders. (See discussion of their views taken into consideration in each step of the process…" (III.18)3. "Restrictions on access to genetic resources 3. The Guidelines fail to acknowledge that there should be transparent, based on legal grounds, and may be other kinds of grounds - such as ethical and not run counter to the objectives of the Convention" cultural grounds that are probably not recognized by national legislation - on which it would be legitimatefor Indigenous Peoples or others to restrict access "Providers should…strive to avoid imposition of to genetic resources. The State is being warned arbitrary restrictions on access to genetic here that it must make its resources available and respect IP and contract law in the spirit of tradeliberalization. Referring to biodiversity actors (oreven States) as "providers" implies, grotesquely,that biodiversity's function is to supply "users" in acommercial transaction.
4. "Recognizing that Parties and stakeholders may 4. The Guidelines use the term "stakeholders" to be both users and providers…" (II.C.16) define the involved parties, which circumscribes -and fails to differentiate between - multinational "Relevant stakeholders should be consulted and corporations, NGOs, universities, governments and their views taken into consideration in each step of farmers/indigenous communities. Distinctions are made only in terms of "users" and "providers." Thisdichotomy promotes bilateral contracts though thereality of genetic resource use and exchange isinfinitely more complex than a "provider" on oneside relating to a "user" on the other.
5. "Material transfer agreements may contain 5. While the Guidelines leave open the possibility of wording on…whether intellectual property rights barring IP, the clear bias is in favor of IP. The text may be sought and if so under what condition" considers IP a benefit-producing mechanism, which can then be shared. The IP agreementsthemselves are seen as both a "monetary benefit"(as the "providers" would receive a percentage ofthe royalties collected by the owner of the patent),as well as a "non-monetary benefit" (as theproviders may be offered joint-ownership ofpatents).
6. "The involvement of relevant stakeholders should be promoted by…providing support for capacity- overexploitation of the resources are the real building, in order for them to be actively engaged in problem, Indigenous Peoples, farmers, etc. are various stages of access and benefit-sharing offered "capacity-building" to facilitate their own arrangements, such as in the development and participation in the process that devastates their implementation of mutually agreed terms and contractual arrangements." (III.20.B)7. The objectives of the Guidelines are…to 7. The use of the term "communities" denies the contribute to the development by Parties of broader concept of "Peoples" defended by many mechanisms and access and benefit-sharing Indigenous Peoples. Like "stakeholder" and regimes that recognize the protection of traditional "provider," "community" is a label that suggests knowledge, innovations and practices of indigenous there is one actor empowered to negotiate. (See and local communities, in accordance with domestic laws and relevant international instruments."(I.E.11.j) 8. Regarding Distribution of benefits: "benefits 8. Should the State be authorized to identify those should be shared fairly and equitably with all those who contributed to resource management? In who have been identified as having contributed to cultures where knowledge is collective, shared and the resource management, scientific and/or cumulative and the notion of invention is foreign, how will the contributors be rightly identified? 9. "Monetary benefits may include…salaries and 9. The Guidelines define salaries as benefit sharing, preferential terms where mutually agreed" while salaries are actually payment for labour - not 10. "The work of the World Intellectual Property 10. As the United Nations agency responsible for Organization (WIPO) should be taken into account." the promotion of intellectual property, it is not surprising that WIPO promotes the enforcement ofintellectual property as an effective means toprotect, respect, enhance and conserve indigenousand local knowledge.28 ETC Group believes that an initiative like this one include…special fees to be paid to trust funds should be the focus for benefit sharing. Though supporting conservation and sustainable use of there is no evidence that the CBD is facilitating the establishment of this kind of fund, there existsa template in the Global Conservation Trust,although its provision for a private sector boardmember is inappropriate. The GlobalConservation Trust is an endowment to conservethe world's crop diversity collections, none ofwhich is linked to intellectual property rights.
Countries can be seen as a front for selling off biological resources to the highest bidder.
Biodiversity "Cartel:" The Like-Minded
According to the Cancún Declaration, the Megadiverse Countries Another relatively
participating nations seek to introduce and/or recent biodiversity initiative of the same ilk as harmonize intellectual property systems and the Bonn Guidelines, the Cancún Declaration of increase the use of biotechnology as a means of Like-Minded Megadiverse Countries, is often conserving diversity. Like the Bonn Guidelines, misinterpreted as a pro-South initiative that the Cancún Declaration pays lip-service to the will conserve and utilize biodiversity and stop need to take into account the concerns of biopiracy. The Cancún Declaration was issued indigenous communities and to share benefits by environment ministers and delegates of equitably, but the initiative works to facilitate Brazil, China, Colombia, Costa Rica, Ecuador, (legalize) biopiracy rather than to stop it.
India, Indonesia, Kenya, Mexico, Peru, South Africa and Venezuela in Cancún, Mexico on Conclusion: The practice of biopiracy will not
February 18, 2002. Unfortunately, the Mexican- ebb as long as genetic resources are a feedstock led initiative - which covers 70% of the world's for industry profits, nor while those resources biodiversity, according to the Declaration - can be legally monopolized. Tragically, the moral legitimization of monopolies has been participating countries' own populations or provided in a presumed "neutral" forum, the Indigenous Peoples or local communities. This CBD, transforming the offense into a virtue.
is particularly clear in the case of Mexico, where a law on indigenous rights failed to pass into resources is a fact of life, like progress and legislation in the form that had been agreed science; it can't be stopped, so lets face the upon by the National Indigenous Congress and inevitable and try to get something out of it.
Let's become merchants instead of victims, and recognizing the interdependency of cultural do it before our neighbors do." The Bonn and biological diversity and seeking to protect Guidelines say, "Beggar thy neighbour." The them, the Group of Like-Minded Megadiverse Megadiverse Countries initiative says, "Beggar This is what has to be protected and maintained along with Peoples' social, economic, cultural Convention has been toothless in halting the and political rights. Protection is not about plundering of resources and knowledge from Indigenous Peoples, farmers and traditional respecting and restoring the right to land, communities, but it has become a powerful tool territory, resources, identity, and diversity and to condone it. The Convention's particular about ending the privatization and monopoly notion of "benefit sharing" has become more of resources through IPs, new technologies or akin to "compensation for damages" accrued "benefits" to intellectual property systems, After ten years, it has become clear that the CBD is not a silver bullet for the sustainable use companies have been able to increase their and conservation of biodiversity nor has it competitiveness in the marketplace, and the strengthened the roles and rights of Indigenous Peoples and communities. Communities will unhappy pawns in harming the interests of strategies outside the Biodiversity Convention.
No one refutes that benefit sharing is needed.
work on a legally-binding international regime The issue is that the real "benefit sharing" - to on access and benefit sharing based on the the benefit of humankind - has been practiced for millennia by the "biodiversity actors:" reformulate the Bonn Guidelines. ETC believes Indigenous Peoples, peasants, small farmers, that, in addition, a public, international fund (a fisherfolks, forest dwellers, pastoralists and other traditional communities. All agriculture established through compulsory "taxes" paid and health care systems are based on their past by benefiting governments. The fund should be and present contributions, which, in turn, have managed by the United Nations but it should been based on reciprocity, on free flows of also directly involve the biodiversity actors exchange of resources and knowledge among (identified above). The fund's explicit purpose Peoples, between communities, regions and should be to sustain cultural and natural across the world. The process is not comparable to a commercial transaction. Rather, it is based available to Indigenous Peoples organizations, small farmers organizations and the like.
nurturing and development of biodiversity.
ENDNOTES:
1 Article 15 of the CBD: "Access to Genetic Resources." The text of the Bonn Guidelines is available athttp://www.biodiv.org/decisions/default.aspx?m=cop-06&d=24. The text of the Cancún Declaration is availableat www.megadiverse.org2 The text of the Convention is available at www.biodiv.org.
3 Quoted in Ted Agres, "When Sharing Means Less for All:New rules on biodiversity prompt frustration withtreaty," The Scientist, October 20, 2003. Available on the Internet:http://www.the-scientist/yr2003/oct/prof4_031020.html|4 Lucile Brockway, Science and Colonial Expansion: The Role of the British Botanic Gardens, Yale UniversityPress, 1979.
5 Sarah A. Laird and Larry ten Kate, "Biodiversity prospecting: the commercial use of genetic resources and bestpractice in benefit-sharing," Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice,London and Sterling, VA: Earthscan Publishing, 2002, p. 241.
6 Letter from Secretary of State Warren Christopher, 16 August 1994. The United States' failure to ratify theCBD should not be taken as a sign that the Convention is a "good" treaty for Indigenous Peoples and traditionalcommunities of the developing world with the legal force to extract compensation from an industrializedsuperpower such as the US. The reasons for the US failure to ratify the treaty largely stem from a general wariness of all multilateral treaties that might imply a threat to the intellectual property rights of UScorporations.
7 This is the concern of the legally-binding Treaty on Plant Genetic Resources, adopted in November 2001 afterseven years of negotiations. The Treaty seeks to insure the future international cooperation and open exchangeof "any genetic material of plant origin of actual or potential value for food and agriculture," which farmers allover the world have developed and exchanged over 10,000 years. Through the Treaty, countries agree toestablish "an efficient, effective and transparent Multilateral System to facilitate access to plant geneticresources for food and agriculture, and to share the benefits in a fair and equitable way." The MultilateralSystem applies to over 64 major crops and forages. Although the spirit of the Treaty is to safeguard Farmers'Rights, just as with the CBD, governments have left the implementation of the Rights subject to nationallegislation. Further, ambiguous clauses on IP and benefit sharing could subvert the value of the Treaty. Itremains to be seen whether or not the treaty, in practice, will be a betrayal of farmers and the public interest.
8 Paul Elias, "Small Canadian Farmer Fights Monsanto," Associated Press, January 20, 2004. Available on theInternet: http://www.washingtonpost.com/wp-dyn/articles/A32976-2004Jan20.html9 Anon. University of Bonn news release, "Shaman Medicine Antidote to 'Sweet Blood,'" available on theInternet: www.uni-bonn.de/en/News/29_2003.html. Although this seems to be a case of biopiracy, a patentdatabase search (December 2003) did not reveal patent applications or patents on this treatment for diabetes.
10 Natural product drugs are those that may occasionally be manufactured by semi-synthesis or even totalsynthesis but which are chemically identical to a naturally-occurring genetic resource. From Sarah A. Laird andLarry ten Kate, "Biodiversity prospecting: the commercial use of genetic resources and best practice in benefit-sharing" in Sarah A. Laird, ed., Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice,London and Sterling, VA: Earthscan Publishing, 2002, p. 250. The task of drug discovery and development issubstantial and this accounts for turning to indigenous knowledge. An oft-quoted figure is that the price ofdeveloping one new drug is $802 million (in 2000 dollars). The figure comes from Joseph A. DiMasi, RonaldW. Hansen, Henry G. Grabowski, "The price of innovation: new estimates of drug development costs," Journalof Health Economics 22 (2003), pp. 151-185. The quote often forms part of an apologia justifying the high costof drugs.
11 The study was made by F. Grifo et al. and is cited in Sarah A. Laird and Larry ten Kate, "Biodiversityprospecting: the commercial use of genetic resources and best practice in benefit-sharing," in Sarah A. Laird,ed., Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice, London and Sterling, VA:Earthscan Publishing, 2002, p. 270.
12 Kerry ten Kate and Sarah A Laird. 1999, The Commercial Use of Biodiversity: Access to genetic resourcesand benefit-sharing. London: Earthscan, p. 2.
13 Sarah A. Laird and Larry ten Kate, "Biodiversity prospecting: the commercial use of genetic resources andbest practice in benefit-sharing," Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice,London and Sterling, VA: Earthscan Publishing, 2002, pp. 249.
14 Ibid., pp. 249-50. The 2001 sales figure for Zocor comes from Anon., "Zocor patent extended," February 27,2002. Available on the Internet: http://money.cnn.com/2002/02/27companies/merck15 Sarah A. Laird and Larry ten Kate, "Biodiversity prospecting: the commercial use of genetic resources andbest practice in benefit-sharing," in Sarah A. Laird, ed., Biodiversity and Traditional Knowledge: EquitablePartnerships in Practice, London and Sterling, VA: Earthscan Publishing, 2002.
16 Cited in Maureen Rouhi, "Rediscovering Natural Products," Chemical & Engineering News, October 13,2003, p. 78.
17 Ibid.
18 12 biopharmaceuticals were approved in 2002 (27 were approved in 1998). Rick Mullin, "Drug DiscoveryPerspectives," Chemical & Engineering News, Aug. 18, 2003, p. 14.
19 Ibid.
20 Maureen Rouhi, "Rediscovering Natural Products," Chemical & Engineering News, October 13, 2003, p. 77.
21 See www.hapmap.org22 Recently there have been attempts to compile databases of traditional knowledge on the Internet so thatknowledge will be documented in a Western medium in order to be considered prior art. According to Ragunath Mashelkar, director-general of the Council of Scientific and Industrial Research in New Delhi, which compileda database of plants used in India for medicinal purposes: 'This is the only permanent solution to prevent patentsfrom being issued for non-original inventions in our traditional system." Quoted in K. S. Jarayaman, ".as Indiapushes ahead with plant database," Nature, vol. 405, May 18, 2000, p. 267. For the database, seewww.wipo.org/globalissues/databases/tk/23 Anon., New Medicines. New Hope. Pharmaceutical Research and Manufacturers of America, Summer 2003.
Available on the Internet: http://www.phrma.org/publications/twopager/2003-06-24.752.pdf24 See, for example, The Crucible II Group, Seedling Solutions, Volume 1. Policy options for genetic resources:People, Plants, and Patents revisited, pp. 73-75.
25 Vandana Shiva, Monocultures of the Mind: Perspectives on Biodiversity and Biotechnology, Zed Books,1993, p. 10. Excerpt available on the Internet: http://www.komito.com/nativeeyes/knowledge/readings/rr5know_Shiva.htm.
26 RAFI Communiqué, "Geopolitics of Biodiversity," Issue #46, 1996. Available on the Internet:http://www.etcgroup.org/article.asp?newsid=20327 Hamdallah Zedan, Introduction to the "Bonn Guidelines on Access to Genetic Resources and Fair andEquitable Sharing of the Benefits Arising out of their Utilization," Secretariat of the Convention on BiologicalDiversity, 2002, p. IV.
28 See GRAIN, "The great protection racket, Imposing IPRs on traditional knowledge," Seedling, January 2004,pp. 13-17.
The Action Group on Erosion, Technology and Concentration, formerly RAFI, is an
international civil society organization headquartered in Canada. The ETC group is dedicated to
the advancement of cultural and ecological diversity and human rights. www.etcgroup.org. The
ETC group is also a member of the Community Biodiversity Development and Conservation
Programme (CBDC). The CBDC is a collaborative experimental initiative involving civil society
organizations and public research institutions in 14 countries. The CBDC is dedicated to the
exploration of community-directed programmes to strengthen the conservation and
enhancement of agricultural biodiversity. The CBDC website is www.cbdcprogram.org. The
views expressed in this Communiqué are not necessarily those of our CBDC partners.

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