Sharing Traditional Knowledge: Who benefits? Cases from India, Nigeria, Mexico and South Africa - Benefit Sharing - page 66

on the obligation upon users to seek prior informed consent from providers , prior
to access and benefit-sharing measures. These guidelines were adopted unani-
mously by 180 countries, which gives them an indisputable authority as evidence
of international will. In August 2002 this international will was reinforced by the
World Summit on Sustainable Development, which called on all countries to nego-
tiate an 'international ABS regime to promote … the fair and equitable sharing of
benefits arising out of the utilization of genetic resources' (UN 2002 : Resolution 2:
Plan of Implementation, para 44(o)), as recalled in the Preamble to the Nagoya
Protocol. Indigenous critics again pointed out that indigenous peoples' rights
remained vulnerable, being subject to the national sovereignty of states over natu-
ral resources, as set out in national laws (Harry 2005 ). 5
In this context, indigenous peoples have challenged the intellectual property
rights and patent systems as being incompatible with their collectively owned,
shared knowledge systems. At various forums they assert the iniquity and inabil-
ity of intellectual property rights to safeguard their rights, and call on states to
develop sui generis - in other words, specially designed - methods of traditional
knowledge protection (Correia 2001 : 11-14). Indigenous peoples issued a state-
ment entitled 'No to Patenting of Life' in opposition to the TRIPS agreement,
adding:
Patenting and commodification of life is against our fundamental values and beliefs
regarding the sacredness of life and life processes, and the reciprocal relationship, which
we maintain with all creation (Tauli-Corpuz 2003 : 25). 6
Those who reject commodification do not limit themselves to TRIPS. They also
argue that because indigenous knowledge is sacred, fair and equitable benefit shar-
ing is impossible under 'the prevailing paradigm of privatization and commodi-
fication of nature and knowledge', as implied in the CBD (Sridhar et al. 2008 ).
From this perspective, it is argued that CBD-style benefit sharing is dead (Sharma
2005 : 1), even before it has begun, and that the 'most sweeping biopiracy coup
occurred in 1993, when the CBD came into force and thereby legalized “recog-
nition” of national sovereignty over genetic resources' (Ribeiro 2005 : 49). If
indigenous peoples accept the prevailing paradigm and collaborate with the pro-
patents CBD approach, then 'their current way of living and their culture will be
destroyed in the long run' (Sharma 2005 : 1).
At the other end of the spectrum, the CBD itself, signed by 193 parties, claims
exactly the opposite, namely that it will 'sustain the rich diversity of life on
earth'. 7 It implicitly assumes that the benefits of natural resources should be
5 As discussed in Chap. 3 , the 2010 Nagoya Protocol includes a new provision (see Art 6.2) that
requires parties to take appropriate measures to ensure the consent of indigenous and local com-
munities to access genetic resources, where their rights over the genetic resources are established
in domestic law. This provision cannot however have any impact on access and benefit sharing
arrangements in circumstances where the indigenous and local peoples do not have such estab-
lished legal rights.
6 See also Tauli-Corpuz ( 2002 ).
7 First description of CBD aims on running banner on CBD official website, http://www.cbd.int/ .