Incorporating traditional knowledge in an international regime on access to genetic resources and beneft sharing: Problems and prospects

European Journal of International Law

Volumn 21, Issue 2, 2010, Pages 457-475

  Nijar, Gurdial Singh ^a  

^a UNIVERSITY OF MALAYA   (Malaysia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77954252787     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chq036     Document Type: Article

References (65)

1. COP 7 set up a mandate for the negotiation of an international regime on ABS. Negotiations have been proceeding and have entered the final phase. 7 working group meetings have been held to date and there is expectation that some instrument will emerge by the final deadline - fixed for the Conference of the Parties (COP) 10 meeting in Nagoya, Japan, in Oct. 2010.
2. It is generally agreed that TK with regard to the use of biological and genetic resources continues to provide the integral foundation for the management, conservation, and improvement of a wide variety of resources.
3. Art. 8(j) CBD, available at: www.cbd.int/conven tion/convention.shtml.
4. See www.unutki.org/phprint/php (last visited 10 Sept. 2009).
5. Gray, 'Between the Spice of Life and the Melting Pot: Biodiversity Conservation and Its Impact on Indigenous Peoples', International Working Group for Indigenous Affairs (IWGIA), Doc 70 (1990).
6. Farnsworth et al., 'Medicinal Plants in Therapy', 63 Bull WHO (1985) 965, at 966.
7. Balick, 'Ethonology and the Identification of Therapeutic Agents from the Rainforest', in D.J. Chadwick and J. Arsh (eds), Bioactive Compounds from Plants (1990).
8. Reyes, 'The Value of Sangre De Drago', Seedling, GRAIN (1996), available at: www.grain. org/seedling/?id=150# (last visited on 17 Sept. 2009).
9. Gray, 'Indigenous Peoples and the Marketing of the Rainforest', 20 The Ecologist (1991) 223;
10. Posey, 'Intellectual Property Rights and Just Compensation for Indigenous Knowledge', 6 Anthropology Today (1990).
11. Art. 8(j) CBD, supra note 3. The CBD also requires each party to protect and encourage customary use of biological resources in accordance with conservation or sustainable use requirements: Art. 10(c).
12. Decision V/16, Annex, in From Policy to Implementation: Decisions from the Fifth Meeting of the Conference of Parties to the Convention on Biological Diversity (2000), at 73.
13. Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization.Montreal: Secretariat of the Convention on Biological Diversity (2002), at para. 26.
14. The Universal Declaration of Human Rights, 1948
15. The International Covenant on Civil and Political Rights, 1966
16. ILO Convention No 169 on Indigenous and Tribal Peoples in Independent Countries, 1989, available at: www.ilo.org/ilolex/cgi-lex/convde.pl%3FC169;
17. The FAO Treaty on Plant Genetic Resources for Food and Agriculture, 2001, available at: www.planttreaty.org;
18. The UN Declaration on the Rights of Indigenous Peoples, 2007,available at: www.un.org/esa/socdev/unpfii/en/drip.html.
19. The Declaration has been ratified overwhelmingly by all countries of the world, including Malaysia.
20. The Ninth Meeting of COP decided to establish 3 distinct groups of experts to provide legal and technical advice and input to assist the Working Group. The other expert groups deal with concepts and definitions; and compliance.
21. Report of the Meeting of the Group of Technical and Legal Experts on TK Associated with Genetic Resources in the context of the International Regime on Access and Beneft Sharing, UNEP/CBD/WG-ABS/8/2, at para. 63.
22. As examples: Nigeria, Philippines, South Africa, Kenya, Guyana, Australia, Bangladesh, Afghanistan, Bhutan, Ethiopia, Brazil, Bolivia, Costa Rica, Pakistan, Uganda, Hawaii. There are also similar requirements of regional groupings: Andean Decision 391, the Model law of the Organization of African Unity (OAU), and the proposed draft ASEAN Framework Agreement, all available at: www.cbd.int/abs/measures.
23. Ministry of Economy, Trade and Industry, Japan, and Japan Bioindustry Association, Guidelines on Access to Genetic Resources for Users in Japan (2006), at 11, item 2(iii).
24. Final report: UNEP/CBD/WG-ABS/8/2, available at: www.cbd.int/meetings (last visited on 22 Mar. 2010).
25. The next (Eighth) meeting of the working group is scheduled for Nov. 2009 at Montreal. It will be preceded by a Working Group meeting on Art. 8(j), supra note 3.
26. D.A. Posey and G. Dutfield, Beyond Intellectual Property Rights: Towards Transitional Resource Rights for Indigenous Peoples and Local Communities (1996).
27. As in the ABS related laws of Afghanistan, Brazil, Ethiopia, Pakistan, Queensland (Australia), and Vanuatu.
28. L. Glowka et al., A Guide to the Convention on Biological Diversity (1994), at 83.
29. See the ABS related laws of Afghanistan, Australia, Bhutan, Bulgaria, Guyana, India, Malawi, Pakistan, Philippines, and South Africa.
30. Costa Rica, Brazil, India, and Uganda. Bhutan and Hawaii; require a fresh application to be submitted for every new use. The Bonn Guidelines, supra note 14, impose a duty on the users to obtain a new prior informed consent and enter into fresh mutually agreed terms if they use genetic resources for purposes other than those for which they were acquired, or where there is any change of use: Art. 16(b)(v) read together with Art. 34.
31. M.S. Suneetha and P. Balakrishnan, Beneft Sharing in ABS: Options and Elaborations (2009), at 16-17.
32. The preference may then be for a research and commercialization agreement rolled into a single agreement, specifying the royalty rates and technology transfer.
33. S. Laird and R. Wynberg, Access and Benefit Sharing in Practice: Trends in Partnerships across Sectors (2008), at 27-28.
34. Swiderska, 'Traditional Knowledge Protection and Recognition of Customary Law: Policy Issues and Challenges, available at: www.iied.org/NR/agbioliv/bio-liv-projects/documents/TKWorkshopMay04.pdf, at 10.
35. R. Wynberg, D. Schroeder, and R. Chennells, Indigenous Peoples, Consent and Beneft Sharing: Lessons from the San-Hoodia Case (2009), at Chap. 6.
36. Andean Decision 391.
37. Access and Rights to Genetic Resources: A Nordic Approach, Nord 2003: 16, Nordic Council of Ministers, Copenhagen (2003) at 116-117.
38. Bangladesh, Andean Decision 391, Bolivia, Brazil, Costa Rica, Uganda, Vanuatu, Nigeria, Philippines, Seychelles, Afghanistan, Northern territory, South Africa, and Pakistan.
39. E.g., Bhutan.
40. India, Malaysian State of Sabah and Sarawak, Bulgaria, Queensland (Australia).
41. E.g., Bhutan.
42. E.g., India; Guyana.
43. Costa Rica, Pakistan, South Africa.
44. Brazil, Bhutan.
45. E.g., Bolivia; Brazil; India; Pakistan; Uganda; Sabah; South Africa; Philippines; Ethiopia; Bangladesh; Australia; Vanuatu. In developed countries as well, there seems to be an assumption that MATs relating to beneft-sharing must be directly negotiated with the ILCs when their TK is accessed: see supra note 32, Japan Bio Industry, Guidelines for Users in Japan (undated), at 18.
46. See also Swiss Academy of Sciences, Access and Beneft Sharing: Good Practice for Academic Research on Genetic Resources (2006), at 15, 29.
47. Firestone, 'You Say Yes, I Say No: Defning Community Prior Informed Consent under the CBD', 16 Georgetown Int'l Environmental L Rev (2003) 1; ABI/INFORM Global, at 171.
48. M.R. Muller, The Protection of Traditional Knowledge: Policy and Legal Advances in Latin America, IUCN-SPDA-BMZ (2006), at 171. Some notable exceptions are emerging. India has digitally documented its TK in relation to traditional medicine extensively primarily to establish prior art to defeat any claims of novelty in IPR claims. It has entered into an agreement with the EPO. This has reduced patent claims based on Indian TK substantially. A similar agreement exists with the USPTO: Gupta, 'TK Digital Library & ABS Policy and Legislation in India', Workshop on Beneft Sharing of TK and associated Biological Resources, Beijing, 4-5 Sept. 2009.
49. E. Kamau, B. Tobin, and G. Winter, Undoing the Knot in ABS Transaction: In Search of Amicable Solutions, Summary of Debate of Bremen Workshop, 15-16 Feb. 2008, at 9.
50. Adopted by the ASEAN ministers for the environment in 2005. It has yet to be signed by the countries.
51. See also Report of the Meeting of the Group of Technical and Legal Experts on TK Associated with Genetic Resources in the context of the International Regime on Access and Benefit Sharing, UNEP/CBD/WG-ABS/8/2, at para. 87.
52. The Philippines law is an exception and provides detailed procedures for prior informed consent and beneft-sharing: see sects 13.2 and 14 of the Guidelines for Bioprospecting Activities established under the Joint DENR-DA-PCSD-NCIP, Administrative Order No. 1 of 2005, available at: www.cbd.int/abs/measures.
53. B. Tobin, Customary Law as the Basis for prior informed consent of Local and Indigenous Communities (undated).
54. Agenda 21, Art. 26.4.b. Bonn Guidelines, supra note 14.
55. E.g., the Draft American Declaration on the Rights of Indigenous Peoples, Art. XXI, in particular items 1 and 2, available at: www.indianlaw .org/en/projects/ihr/oas/draft.
56. Decision VII/16H, Annex, items 4 and 5, available at: www.cbd.int/decisions/cop/?m=cop-07.
57. The customary protocol developed by the Ta-laandig community includes elements from the Philippines Indigenous Peoples Rights Act:
58. Tauban, 'Saving the Village: Conserving Juris-prudential Diversity in the International Protection of Traditional Knowledge', in M. Alexander, P. Hardison, and M. Ahren, Study on Compliance in Relation to the Customary Law of ILCs, National Law, Across Jurisdictions, and International Law: A Consultancy Paper (2009), at 20.
59. Other desirable elements suggested for inclusion are prior informed consent on the basis of MATs, a consultation process with ILCs, and procedures consistent with customary practices.
60. Colchester, 'Peru: Visit to a "Potato Park"', 73 World Rainforest Movement Bull (2003), available at: www.wrm.org.uy/bulletin/73/Peru.html.
61. Alexander, Hardinson, and Ahren, supra note 64, at 9.
62. S.35, The Philippines Indigenous Peoples Rights Act 1997, available at: www.glin.gov/view.action?glinID=61555.
63. Adaptation from William Shakespeare, Julius Caesar (1599-1600), 4.3.218: 'There is a tide in the affairs of men which taken at the food leads on to fortune.'
64. M.R. Muller and I. Lapena (eds), A Moving Target: Genetic Resources and Options for Tracking and Monitoring their International Flows (2007), at 118.
65. Ibid., at 118, citing Report from the Regional Biopiracy Prevention Workshop, Bogota, 2005, available at: www.biopirateria.org.