Environmental Engineering Reference
In-Depth Information
The CBD and Benefi t-Sharing Agreements
The recognition that biological diversity is a distinctive resource for
which claims of ownership and benefi t from exploitation can be made
is enshrined within the Convention on Biological Diversity. This states
that national governments have sovereign rights over their biological
resources and requires that access to these resources occur under the
prior informed consent of source-country governments and on mutually
agreed terms (Articles 15.4 and 15.1 respectively). Among its objectives,
the CBD mentions the “fair” and “equitable” sharing of benefi ts result-
ing from commercial and other uses of genetic resources (Article 15.7),
and as such it constitutes one of number of examples of pieces of inter-
national environmental legislation that incorporate justice or equity
principles (Okereke 2006). Article 8(j) of the CBD stipulates that in
cases wherein the knowledge of indigenous and local people has
contributed to the commercial or other uses of biological resources,
the benefi ts must also be shared with the indigenous and local people
(Mulligan 1999). While the CBD creates the obligation to respect, pre-
serve and maintain traditional knowledge, innovations, and practices,
and promote their wider use with the approval of indigenous and local
communities, it does not describe how this is to be achieved (Tobin
2001). “Fair” and “equitable” remain undefi ned in the CBD and widely
divergent opinions have existed over the interpretation and implementa-
tion of these terms (Henne 1997; Mugabe et al. 1997; Mulligan 1999;
Artuso 2002).
While fundamentally the CBD is concerned with questions of distri-
bution—who should benefi t from the exploitation of an environmental
resource—it has also been recognized that to achieve what might be
seen as a just agreement, a fair and inclusive process of negotiation and
settlement is required. In 2002, Article 15 of the CBD was elaborated
with the Bonn Guidelines, which recognized the need for participation
of stakeholders other than governments in the implementation of the
convention and for introducing a new ethic to the CBD. For example,
prior informed consent (PIC) is set as a precondition to access while
bottom-up approaches are advocated to promote the direct participation
of indigenous communities (Herkenrath 2002; Tully 2003). To a signifi -
cant degree, the debate about benefi t sharing in the case of the San and
the Hoodia plant has been framed by the requirements and evolving
practice of implementing the CBD. What is unclear, however, is how far
this acknowledgment of the need to widen involvement and to recognize
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