The framework of the Convention for Biological Diversity (CBD) (Annex I) established a different standard for the protection, usage and access to live resources as an alternative solution to the problems created by the global regime of life form patenting.The convention was signed by 150 States at the Rio Earth Summit in June 1992, and entered into force in December 1993.
The CBD evolved out of international recognition for the alarming erosion of biodiversity with the United Nations Environmental Program serving as a key proponent (Siganporia, 2007).
The convention is significant for providing a framework for the sustainable use and conservation of biodiversity and also proposing a voluntary benefits sharing mechanism. Although largely seen as ineffective by scholars, the CBD is also depicted as an important breakthrough in IPRs.
To remedy the problems associated with biopiracy and bioprospecting the CBD contains a mechanism for Access and Benefit Sharing (ABS) through bilateral contracts to enable indigenous peoples to either maintain control over their knowledge or to beneﬁt from the commercialization of this knowledge (Martin & Vermeylen, 2005; Siganporia, 2007).
The ABS described in the CBD is a unique approach that differs greatly from TRIPS. Unlike TRIPS, the CBD formally recognizes indigenous contributions to genetic resources as stewards of biodiversity.
Article 8(j) recognizes the rights of indigenous and local communities in calling for signatories to ‘respect and preserve the knowledge, innovations, and practices relevant for the conservation and the sustainable use of biodiversity.’ This vague article was clarified during the Fifth Meeting of the Conference of Parties (WHO, 2001).
ABS is an attempt to alleviate the marginalization of indigenous communities by IPR regimes and Biopiracy. ABS is a framework intended to promote the fair distribution of benefits from commercialization of indigenous resources and knowledge. Divergent perspectives emerge from relevant literature on the ABS mechanism (Siganporia, 2007).
ABS agreements are bilateral contracts between users and providers of genetic resources prescribed by the CBD.
The CBD requires that a competent national institution and legal authority preside over ABS negotiations (Singaporia, 2007). Rights and responsibilities outlined in the CBD for individual citizens and private organizations are only applicable if required by national law. The convention does not describe who should be involved in ABS negotiations nor assign responsibilities to a regulatory body.
Contracting parties typically assume that only legal authorities need to be consulted in ABS negotiations, not local communities and indigenous peoples directly (Singaporia, 2007). This limitation results in the exclusion of indigenous peoples for several reasons including: government bias, cumbersome bureaucracies, general incompetence and language barriers.
This exclusion results in the majority of benefits going to scientists and institutions.
The CBD and ABS require national governments to apply prior informed consent (PIC) to source-country governments on mutually agreed terms in Articles 15.4 and 15.5 (Artuso, 2002; Kate & Laird, 1999; Siganporia, 2007; Tobin, 2001; Vermeylena, 2007).
The consent of local and indigenous peoples is supposed to be obtained (PIC) by national governments before the relevant knowledge can be used and/or patented through bilateral bioprospecting contracts. The Bonn Guidelines (2002) stipulate PIC with resource providers as a precondition for patenting genetic resources. Unfortunately, few countries have proposed laws for PIC procedures and most negotiations take place between the private sector and government agencies.
ABS does not provide a mechanism designed to verify if PIC has been obtained.
The CBD encourages indigenous and local communities to participate as providers of knowledge as well as conservers of biodiversity within the IPR framework (Singaporia, 2007). The ABS mechanism aspires to give resource providers benefits resulting from the commercialization of genetic resources. The benefit-sharing mechanism adopted in the CBD is aimed at the integration of local and indigenous communities into the patenting regime. In other words, the ABS mechanism is an attempt to conform IK systems to the IPR regime.
In so doing the convention supports the proliferation of IPR regimes through the commercialization and privatization of IK.
ABS in the CBD provides a context in which IPR claims can be critically challenged (Marinova & Raven, 2006). Through partnerships such as ABS it may be possible for some indigenous peoples to use patents to secure some rights over their knowledge, while gaining economic benefits (Marinova & Raven, 2006). The Bonn Guidelines outline financial and non-monetary benefits like training and joint research, scientific cooperation, institutional capacity building, employment opportunities and ongoing relations.
Arguably, placing IK within the realm of the capitalist market may provide the recognition and equity necessary for some indigenous communities and individuals to create monetary wealth and poverty alleviation.
Finger (2002) argues that the main issue needing to be addressed is to help poor indigenous peoples commercially benefit by using modern methods from their traditional wisdom. The formation of ‘indigenous intellectual property’ may gain some recognition of indigenous rights to knowledge, while creating opportunities for market- based value of their knowledge, and thus economic stability.
The CBD has been criticized for many reasons.
The usefulness of applying IPR language in the movement for biodiversity and IK conservation is a subject of considerable debate. Indigenous peoples have largely warned against developing legal instruments to encourage the commercialization of IK (Tobin, 2009). Rather, they suggest an approach that embraces IK systems by supporting them holistically.
In theory voluntary indigenous accreditation through ABS is a fair partnership and holistic approach that actually improves the socioeconomic conditions of indigenous communities.
According to Marinova and Raven (2006) and Finger and Schuler (2004), ‘indigenous intellectual property’ can be conceptualized as a form of capital, which existing legal, economic and market-based mechanisms are more able to manage. Eisner (1990) and Reid (1993) believe bioprospecting has the capacity to share benefits with indigenous communities and promote sustainable development.
Following this logic, engaging communities in the bioprospecting process and compensating them is a way of alleviating poverty. This claim is highly contested in existing literature.
The idea of ‘indigenous intellectual property’ has been criticized as a reductionist approach that articulates IK systems in terms of ‘utility’ to market-based approaches (Shiva, 2005a). Vermeylena (2007) has criticized the CBD as a ‘Western’ construct that promotes the concept of exclusive ownership of knowledge, which negatively impacts indigenous communities.
“Even if it were possible to fragmentize and capitalize indigenous knowledge, would it be desirable?” ~ Marinova and Raven (2006, p. 5)
Scholars have argued that indigenous peoples are forced to adopt the language of IP although it is contrary to the very foundations of indigenous cultures and is thus culturally erosive (Godbole-Chaudhuri, Srikantaiah & Fleet, 2008).
WIPO (2005) has stated that the current IPR regime cannot maintain the social and physical environment that perpetuates IK. In other words the commoditization of IK by indigenous peoples themselves may erode the holistic, collectivist foundations important to the survival of indigenous communities.
Agrawal (as cited in Fernando, 2003, p. 69) is a pioneer in research on IK systems and has reflected on the conflicts arising from the CBD writing that:
I believe indigenous peoples are caught on the horns of a dilemma that arises from the spreading interest in their knowledge and culture. Without control over their intellectual products, their knowledge stands to be expropriated without any material benefits reaching them. But even with intellectual property, and even if some capture significant material gains, their cultures will inevitably be radically transformed.
Indigenous cultures are impacted by IPR regimes regardless of their ability to maintain control over their intellectual products and obtain material benefits.
Understanding the multiple impacts of imposing IPRs over PGR will help to decide if a new intellectual property is capable of maintaining the social, political, cultural and physical environment where indigenous knowledge is created (Marinova & Raven, 2006).
Siganporia (2007, p. 25) asks the seminal question,
“What circumstances impel actors in a position of political and economic marginalization to adopt the language of intellectual property?”
Siganporia (2007) critiques the CBD as
- lacking clarity
- requiring high bureaucracy and transaction costs
- lacking corporate and indigenous involvement in creating the framework
- creating false hopes amongst indigenous communities for high monetary return.
Additionally, the CBD ignores many factors such as third parties like gene banks and research institutions.
The CBD has been widely criticized for failing to define ‘fair’ and ‘equitable’ and failing to advance a tangible framework for benefit sharing.
Addressing the question of what constitutes fair and equitable is a complex question (Dutﬁeld, 2004). The concept of justice is subjective (Bourassa & Strong, 2000). The United Nations Environmental Programme (UNEP, 1998) stated that interpretations of what constitutes ‘fair’ and ‘equitable’ (used in the CBD) depends on the underlying value system on which the judgment is based.
Challenges attributed to the ABS concept include the difficulty in attributing an economic value to genetic resources, the post-patenting/commercialization distribution of benefits, excessive bureaucracy and transaction costs in developing counties, the non-recognition of indigenous communities and their inability to negotiate bilateral contracts with powerful corporations (Kate & Laird, 2000).
“Is it possible to calculate the value of genetic resources and the research activities that improve the variety at every stage?” ~ Siganporia (2007)
The problem of benefit distribution and identifying individual recipients of benefits is a serious issue facing the ABS (Siganporia, 2007). Many genetic resources that corporations want to patent are used by millions of people as illustrated by the case of Neem. Such a conundrum requires stakeholders to review the laws that give private ownership over genetic resources.
Yet another challenge to creating a financial mechanism to allocate payment to farmers is the unlimited duration of Farmers Rights.
IPRs are devised in a temporary time frame (20 years) to balance innovation incentives and public competition. The time frame is relatively minuscule when compared to the collective, intergenerational accumulation of IK over many centuries (Correa, 2000).
Peria (2005) asserts that ABS is misleading.
The researcher claims that the ABS mechanism creates false hopes for substantial monetary gains or capacity building. To remedy this fault indigenous communities should have a clear understanding of the ABS process and realistic expectations (Siganporia, 2007). Peria proposes greater participation and involvement of indigenous peoples at all levels of negotiations as a remedy to the shortcomings of the ABS mechanism.
Clearly the ABS mechanism is a flawed and tremendous undertaking.
However only few studies have been conducted on the actual social consequences and experiences of the CBD approach and the ABS mechanism. The debate on creating ‘indigenous intellectual property’ is limited due to the lack of empirical evidence regarding the experiences of local communities and indigenous groups.
The first case of indigenous intellectual accreditation is widely discussed in the relevant literature. Scholars reviewing the Aveda case study acknowledge the attempt at social responsibility, but raise important questions regarding the actual benefit to the community (Siganporia, 2007).
The first application of ABS was created through the partnership between Mt Romance (Australian sandal- wood company), Aveda (US-based multinational cosmetics corporation) and the Kutkabubba community (represented by the Songman Circle of Wisdom) (Marinova & Raven, 2006).
The US based Cosmetics Company Aveda accredited the Kutkabubba community and shared profits in the amount of $50,000 from the use of sandalwood oil. Marinova and Raven conclude that the voluntary accreditation clearly lacks an adequate framework for ABS and did not fairly compensate indigenous peoples for the value of their traditional knowledge.
Mamen and Whiteman (2002) present an ABS case study of the mining industry.
The researchers argue that insufficient attention is given to the perception of procedural fairness in the decision-making process from an indigenous perspective. They conclude in their examination that the indigenous cultural perspective must be included for a fair and balanced procedure to exist.
Vermeylena (2007) conducted a case study of power imbalances between indigenous peoples and corporations through a case study of the San community’s views of a belated benefit-sharing agreement for the traditional plant Hoodia in South Africa. The San’s perceptions of the Hoodia beneﬁt-sharing agreement were collected through the use of participant observation, life stories and over 100 informal and semi-structured interviews. The San people expressed much interest in learning and benefiting from the Hoodia project.
However, they were disappointed in the level of cooperation.
The prevailing ethic of egalitarianism and full participation, consensus decision-making in San society was ignored during negotiations. Findings included that corporations dominate the development and application of epistemologies, or simple definitions, that are used to shape benefit-sharing agreements and disregarded traditional practices, perceptions and customary law (local governance structures).
Divisions were created within San society by the ABS agreement.
Vermeylena (2007, p. 17) explained that:
A society that was previously characterized by egalitarianism and avoidance of prestige is now faced with a new sort of San elite who are visibly better off (houses, cattle) and consider themselves superior to other community members … In short, the way in which the Hoodia beneﬁt-sharing agreement came into being shows that it mainly regulates an economic relationship; the main concern was redistribution of money and no attention was given to the social impacts of the agreement.
Vermeylena concluded that the processes behind the ABS negotiations failed to engage all stakeholders in the decision-making process, which resulted in a schism in the egalitarian structure of San society.
Even the seemingly positive beneﬁts that result from granting intellectual property rights to local communities may lead to unintended negative consequences.
Moran (2004) agrees that beneﬁt-sharing agreement can only be fair when all stakeholders participate equally in the decision-making process. According to Husted (as cited in Whiteman & Mamen, 2002, p. 301-302), procedural fairness can be practiced through the choice to participate in a balanced decision-making process, the ability to influence decision-making and legitimate explanatory feedback.
The indigenous sensitivities reported by Whiteman and Mamen (2002) might not necessarily be universal, but their ﬁndings (in addition to providing a checklist) highlight the importance of going into the ﬁeld to elicit, explore and reﬂect on the views of indigenous peoples who are affected.
Sharma (2005) is critical of the ABS mechanism because of the non-recognition of indigenous communities.
He writes that,
“Such projects should be cancelled or avoided. Otherwise developing countries will be made to sell their “green gold” for little more than benefit-sharing candies and trinkets (p. 10).”
Sharma presents a case study of the failed ABS agreement between the Kani tribe of South India and the pharmaceutical company Nutri Science. The Kani tribe developed an anti-stress and fatigue medicine with a commercial value of one billion dollars called Jeeavani. The ABS bilateral contract stipulated that the tribe was supposed to receive 600$ per acre, but only received a one time payment of $10,000.
Shiva (2005a) likewise criticizes ABS as a flawed concept because it excludes indigenous people from involvement in the negotiation of bilateral contracts. Shiva asserts ABS is illegitimate because bioprospecting contracts wrongfully claim IPR over IK and are thus a form of biopiracy. ABS promotes exploitation by excluding indigenous communities from their rightful share in growing markets.
The Bonn Guidelines (Siganporia, 2007) elaborate on the application of ‘fair’ and ‘equitable’ in CBD Article 15 by emphasizing the need for diverse and direct stakeholder’s participation in the implementation of the convention (Tully, 2003; Vermeylena, 2007). A participatory process for proposing, interpreting and applying rules and definitions such as ‘fair’ and ‘equitable’ will allow for a broader definition of what constitutes justice and thus satisfy more parties.
The CBD and the ABS mechanism do not mandate and describe processes for inclusion through participation of indigenous knowledge holders. The bilateral contracts between providers and receivers of indigenous genetic resources often do not involve the representatives of indigenous communities. The need for PIC is only required from the national governments who are presumed to speak on behalf of indigenous communities.
However, the capacity for national governments to accurately represent the interests of indigenous people is questionable considering the continued violation of indigenous rights worldwide.
According to Siebenhuner (et al., 2005), the CBD needs to challenge existing IPR doctrines because of the complexity of pre-existing cultural frameworks. O’Faircheallaigh (1998) asserts that to understand inequality from an indigenous point of view it is necessary to analyze the interactions between indigenous peoples and the companies involved. Posey (1996) argues that working together with communities, to study the social impacts and to determine what ‘just compensation’ should mean, would be more effective than hundreds of national and international laws.
Sen (2009, xi) writes that,
“The focus on actual lives in the assessment of justice has many far reaching implications for the nature and reach of the idea of justice.”
The Nobel Laureate goes on to say that:
The need for an accomplishment-based understanding of justice is linked with the argument that justice cannot be indifferent to the lives that people can actually live. The importance of human lives, experiences and realizations cannot be supplanted by information about institutions that exist and the rules that operate. (p. 18)
Few bioprospectors have enacted the voluntary ABS mechanism and less have taken steps to communicate directly with indigenous peoples regarding their experience of ABS when applicable. Rather, researchers and intermediary organizations, like NGOs, pursue justice by facilitating dialogues between indigenous peoples and relevant companies in few instances.