Biology Reference
In-Depth Information
the conflict are different notions of how the world should be and, in particular, the
degree to which humankind should exploit nature in the interests of economic
growth. The relationships between intellectual property, biogenetic resources and
traditional knowledge have become 'politicised' (Dutfield
2004
), with dividing
lines drawn between governments, non-governmental organizations (NGOs) and
traditional advocates on a number of terrains.
3
The most important of these ter-
rains for our purposes are the United Nations Convention on Biological Diversity
(
1992
), the Bonn Guidelines on Access to Genetic Resources and Fair and
Equitable Sharing of the Benefits Arising Out of their Utilization (Bonn
Guidelines
2002
), the Nagoya Protocol on Access to Genetic Resources and the
Fair and Equitable Sharing of Benefits Arising from their Utilization (CBD
2010
)
and the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPs agreement) (1994).
4
The CBD has been described in detail in
Chap. 3
. Article 8(j) (CBD
1992
)
is the most important source of rights for indigenous peoples in the convention,
requiring state contracting parties to:
1. respect, preserve and maintain knowledge, innovation and practices of indig-
enous and local communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity,
2. promote the wider application with the approval and involvement of the holders
of such knowledge, innovations and practices, and
3. encourage the equitable sharing of the benefits arising from the utilization of
such knowledge, innovations and practices.
Article 15 of the CBD (
1992
) is explicit regarding rights and access to non-
human genetic resources. It recognizes the sovereignty of states over their natural
resources, and provides that access to these resources shall be subject to the prior
informed consent of the provider state, as well as based upon mutually agreed
terms in order to ensure the sharing of benefits arising from the commercial or
other utilization of such resources. Some indigenous activists strongly criticize
the fact that the CBD places sovereignty over biological resources in the hands of
states, rather than in those of the indigenous peoples, whose rights under Article
8(j) are far more vague (Harry
2005
).
In 2002 the CBD contracting parties operationalized the above provisions by
adopting the Bonn Guidelines, which were designed to assist parties in developing
overall access and benefit-sharing (ABS) strategies, and to help them when estab-
lishing legislation and policy measures. The emphasis of the Bonn Guidelines is
3
Other early important agreements are the 1976 International Convention on Economic, Social
and Cultural Rights, which provides that state parties to the covenant 'recognize the right of
everyone to enjoy the benefits of scientific progress and its applications', the International
Undertaking on Plant Genetic Resources for Food and Agriculture (1983), later superseded by
the International Treaty on Plant Genetic Resources for Food and Agriculture (2001), and the
UPOV convention (International Convention for the Protection of New Varieties of Plants 1991).
4
The TRIPS agreement is administered by the World Trade Organization (WTO).
