Towards a Biodiversity Community Rights Regime

TOWARDS A BIODIVERSITY COMMUNITY RIGHTS REGIME

December 1995

It in a world increasingly dominated by trans-national economic free-trade conglomerates, the need for new commodities and markets becomes the driving force behind many national and international policy decisions. Several of the rights won by citizens during this century from governments -- social security, health, education, welfare minimums, even recent environmental protection -- suffer rapid erosion due to the overtaking of public functions by private economic forces. The market, by definition condemned to constant growth in order to survive, commodifies many aspects of life and in the process people are deprived -- and even expropriated -- of control over key aspects of their reality.

The push for commodification has lead commercial interests to gain increased access to and control over traditional resources and knowledge of local farming communities and indigenous peoples. The expansion of the western concept of Intellectual Property Rights is one of the main weapons wielded, as witnessed in the GATT negotiations, other regional free-trade treaties, and bi-lateral trade pressure -- and retaliations --being exerted by powerful Northern governments on their trading partners.

Many of the environment and development related international negotiations currently being carried out in multiple fora deal, in one way or another, with the rights of people over their traditional resources. At GRAIN we have been closely monitoring some of these processes for quite some time, and we are currently concentrating on two: the renegotiation of the FAO’s International Undertaking on Plant Genetic Resources, and the Convention on Biological Diversity. We believe that, according to our past experience and specialised action niche, it is here where we can be most effective. In no way do we pretend that al the other negotiations going on -- the Commission on Sustainable Development, the World Trade Organisation, treaties on population, gender, fishery and small-island states -- are less important. Actually, we aim to work in synergy with as many other local, national, regional and international social actors as possible, and realise that in solitude there is very little to be done. We address this paper to all those partners out there sharing this work towards a peoples-led development agenda, and to those in official positions with capacity to influence public policy.

This paper is meant as a contribution to the discussion on alternatives to the western IPRs system, especially in the area of biodiversity. First we highlight the current situation with respect to the commodification of local biological resources. Second, the actors, local communities and indigenous peoples, are identified and their status as subjects of international law established. Third, we argue for the existence of precedents that clearly point to community rights as a viable alternative to western-style IPRs, an alternative that departs from the right to control over resources. And, fourth, we take a closer look at negotiations within FAO and the CBD and suggest ways in which community rights could be introduced in those fora. The analysis and conclusions should not be seen as final. Nevertheless, the bottomline is clear: faced with the push for western IPRs as a means to privatise and commodify peoples’ resources and knowledge, there is a need to come with alternatives that are creatively based upon the historical ways and rights of local communities and indigenous peoples, and that -- at the same time -- challenge the increasing privatisation and commodification of any biological resources.

In the current international economic and legal environment two apparently contradictory tendencies are taking place. On the one hand, a lot of action goes on around the different initiatives and treaties that came out of the 1992 United Nations Conference on Environment and Development (UNCED). One of the most important consequences of that process has been the call for sustainability as a key criteria for future worldwide development policy, and the recognition that sustainable development must be based on the potential and the needs of those working, living and acting at the local levels.

But then, on the other hand and at the same time, GATT’s Uruguay Round came to an end and created the World Trade Organisation (WTO), which -- together with other financial institutions such as the World Bank and the International Monetary Fund -- has taken the leading role in imposing global free trade environment and regional free-trade zones that prioritise market growth over local needs and social, cultural, and environmental considerations. Under the banner of the fight against unfair trade barriers, these institutions work to ensure that the remotest corner in the world is incorporated into the global market place and opened up to transnational commercial interests.

These two approaches are not compatible. Perhaps this contradiction comes out clearest in the way western based IPRs are being pushed, not only into every corner of the world, but also into every aspect of life, including life itself. Intellectual property rights (IPRs) are a western property paradigm, one out of the many existing and possible ones. Patents and other IPRs are a limited, private, individual and monopolistic concept being pushed by powerful economic corporate interests and the governments that spouse them. Originally developed as a mechanism to promote innovation and reward inventors, they have now become one of the cornerstones for economic expansion and market control.

The main tool that those that push for a uniform IPRs system around the world have at hand is the TRIPs (Trade-Related Aspects of Intellectual Property Rights) agreement, that forms part of the GATT Uruguay round deal. TRIPs basically set the "minimum" standards for IPRs protection world wide. Build on (and in many cases going beyond) the current IPRs situation in the USA, Japan and Europe, TRIPs would have all GATT memberstates bring their IPRs law up to level with those countries.

The push for the extension of the IPRs system has been greatly accentuated in the last years by developments in the new biotechnologies and genetic engineering. Once again the territories under sovereignty of the countries in the South have the resources -- traditionally managed by the local communities -- needed by the industries from the North. The immense genetic diversity held in the warmer areas of the globe has suddenly become an important economic asset in the world economy. Not only are genes and species up for grabs, but the -- until very recently disregarded or treated as non-science -- traditional knowledge associated with that biological diversity is becoming the subject of collection missions, study, and -- through the extension of IPRs to life forms -- monopoly control.

The rights of those peoples who have traditionally nurtured most of the existing biodiversity upon which we depend for our livelihoods are only -- if at all -- tokenly taken into consideration. Local farming communities, indigenous peoples, fisherfolks, hunters, pastoralists, nomads, and gatherers are ignored in the modern genetic market as intelligent holders of both resources and knowledge. Some of these tribal peoples are even sometimes cynically described by part of the scientific community as "isolates of historic interest", whose disappearance is anticipated, and therefore their genetic material must rapidly be collected and "saved", so that in the future biotechnology scientists may "discover" useful and valuable traits¹. Furthermore, it has been argued that nature conservationists have weakened, through the UNCED process, the UN's stand on indigenous peoples, in favour of greater state control over the environment, biological resources², and community assets in general³ .

In this respect, TRIPs is just the most obvious manifestation of a deeper phenomenon that is at the root of the proposed future development of the world economy and governance which has economic growth through expansion of global trade as the central recipe. This economic strategy deals a direct blow to the poorer people who inhabit the planet, at the same time threatening important environmental and development concerns because it ignores, replaces and destroys locally specific livelihood systems. It has been estimated that about 60% of the world's population, mostly in the Third World, depends, to some extent, on self-sufficiency for their food supply. This proportion goes up to 80% when considering those for whom medicinal plants constitute the backbone of their basic health care⁴. These people are being forced into the global market, where they have to buy and sell, not so much because it is better for them but because the global market needs them.

Seen from the above perspective, the fight against monopolistic western-style IPRs becomes central to the wider struggle for peoples' rights to self-determination, understood as the right to control their immediate realities and to ensure an honourable future sustainable development that guarantees equity and justice. For farming and local communities, indigenous peoples, the urban poor, and the NGOs and others who work with them, this is not just another faddish issue. It is central to the wider democratic sustainable development political agenda: local alternatives have very little real possibilities of success without freedom from wider macroeconomics policies that are out to destroy them.

When abstract references are made to the world's poor many conjure images of famine and lack of resources, often coupled with the belief those are the result of self-inflicted backward attitudes that resist "development". When progressive social actors -- peoples' organisations, NGOs, some university and government sectors -- refer to the poor they often mean those communities that have been stripped of their rights to knowledge and resources, with the resulting lose of lifestyles and livelihood means: cultural and economic usurpation. People whose traditional production systems have suffered tremendous disruptures since early colonial times. Their land and biological resources have been expropriated, degraded, altered, and exported. Their cultures have been destroyed, debased or simply ignored. The people themselves have been slaved, killed, marginalised, and forced to migrate or become integrated into hostile social environments.

In the current discussions going on about peoples' rights over biological and other resources, two distinct groups are reinvindicating their communal rights: indigenous peoples and local farming (fishing, hunting, pastoral) communities. While there is a clear overlap between the two groups (many indigenous people farm, and many farmers are indigenous peoples), there are also important differences, especially in relation to the legal recognition and rights indigenous peoples have already achieved. We will discuss those more in detail on the following pages. But, it might be good to first point to the communalities, especially in the area of biodiversity management. The use of the wider concept of "local communities" (including farmers and indigenous peoples) encompasses a large array of different organisational and cultural realities, yet there seems to be a consensus on some basic points of reference:

* Possession or access to traditional knowledge on ecosystem management, even if that knowledge has been eroded;

* Special relationships with their environment that may include cultural, spiritual, social, economic, and technological elements;

* Collective attitudes towards the ownership, use, custodianship, stewardship, sharing, and enjoyment of resources, even if there are internal/external means of individual usufruct/possession;

* Long time experience as nurtures of biological diversity as part of their life-sustaining knowledge and cultural cosmovision;

* A shared sense of community, which can be acquired through historical bonds or circumstantial events.

As stated before, the majority of the world population depends, to some extent, on self-sufficiency for their food supply and health care. Most of the rural communities in the developing countries are farming communities with integrated production systems that provide not only food and medicinals, but also fuel, shelter, organic fertilisers, and clothing, among other basic resources. Also, large numbers of the urban poor in developing countries practice some type of subsistence farming.

But then, while agriculture has formed the backbone for economic development since ancient times, and farmers are the vast majority of the people in many countries, policies to support local farming communities and legislation to help them improve their livelihoods often have been minimal or entirely lacking. Local farming communities and their members have become subjects of national law, international commerce, and policies developed in the cities. The distance from the urban power centres has accentuated their lack of political clout. In developing countries the extraction of rural wealth is accompanied by marked differences in access to education and other basic social services.

Seen against the background just described, the specific recognition of traditional local farming societies in international law as special and distinct communities is a recent and important development. But before looking at the two key fora where this recognition is currently being developed, something should be said about the Peasant’s Charter, the report of an important world conference convened by the FAO in 1979 to address agrarian reform and rural development. By then it had become clear that the "trickle down" development strategies had not worked. The Charter stated that the rural poor -- peasants and smallholders -- should be given effective participation in the "institutions that govern their lives" as a basic human right. The report also called for access to land and water resources, intervention in natural resources management, and equitable distribution of productive assets, "with due regard for ecological balance and environmental protection" for the rural poor. Yet all the good intentions did not go far: when FAO went back ten years later to review the progress made in the implementation of the goals set in the Charter, it had to conclude that the programme had essentially failed.⁵

A more recent development has been the concept of Farmers' Rights’, as introduced in the FAO's International Undertaking on Plant Genetic Resources in 1989 (see Box). Although the scope of Farmers' Rights’ in the IU is rather limited to the recognition as nurturers ("conserving, improving, and making available...") of plant genetic resources, it does mention "farming communities" in the context of natural resource management⁶. According to a Third World Network document ‘Rights’ in this context should be interpreted to mean rights of communities⁷. As this very concept is currently under renegotiation, there are still many different interpretations of the meaning and scope of Farmers’ Rights. We understand that this concept has a lot of potential for future development.

The Convention on Biological Diversity refers to the knowledge, innovations and practices of indigenous and local communities and rights derived from their conservation and sustainable use of biological diversity (art. 8j, see Box). Although this recognition is mediated by the reference "subject to national legislation", it does embody an important first time recognition in an international convention. The role on these communities was extensively analysed in a paper prepared by the CBD Interim Secretariat:

"Indigenous and local communities have been developing, conserving and sustainably using the biological resources of their lands and territories for centuries. Indigenous and local communities not only have extensive knowledge of their surrounding environment, but they are ultimately responsible for implementing any conservation policy on the ground⁸."

The recognition of the importance of these communities was included in the report submitted by the Intergovernmental Committee on the CBD to the First Meeting of the Conference of the Parties, held last November-December in Nassau⁹. It will be subject of formal discussion among the Parties at COP-III in 1996.

There are some key considerations which distinguish the fight for rights of indigenous peoples from that of local communities. In general indigenous peoples have a longer tradition of self organisation at local, national and international levels, than the more heterogeneous "local farming communities". They tend to have a clearer identity and have since long been working at national and international (UN) levels for formal recognition..

The International Labour Organisation (ILO), in order to deal with the abuses against "native" workers, was the first United Nation organisation involved with indigenous peoples’ issues. The first special ILO Convention on these matters, in 1957, actually was oriented towards the social and cultural integration of indigenous peoples’¹⁰. This prejudice was finally addressed in the ILO Convention 169, on Indigenous and Tribal and Tribal Peoples in Independent Countries, signed in 1989¹¹. That Convention upholds indigenous peoples’ rights to control their own economic, social and cultural development, and article 13(1) establishes that governments "shall respect the special importance of the cultures and spiritual values of the peoples concerned, of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship".

Self-definition and self-determination has been accepted as the main criteria for identification of indigenous peoples by those involved in the issue. According to World Rainforest Movement’s Marcus Colchester:

"...many ethnically distinct and marginal peoples are increasingly adopting the term ‘indigenous’ to describe themselves because of the rights that they believe are associated with such a term -- rights to their lands and territories; to maintain their cultural traditions, religions, languages and practices; to exercise their customary law; to govern themselves through their own institutions, to represent themselves through their own organisations; to control their own natural resources; to self-determination; and the recognition of their right to be different." (italics added)¹².

Self-determination for nation-states has been recognised by the United Nations in the International Covenant on Civil and Political, and in the International Covenant on Social, Cultural and Economic Rights, but no international convention has positively affirmed that such a right applies to indigenous peoples. Yet, the right to self-determination offers great political potentiality for protection and control over traditional and communal knowledge and resources.

Another potentially important tool for the recognition of the rights of Indigenous Peoples is the Universal Declaration on the Rights of Indigenous Peoples, which is currently being developed by the UN Commission on Human Rights. Self determination is expressly mentioned in its most recent draft¹³. That draft also significantly states that indigenous peoples have the rights to biodiversity:

"Indigenous peoples also have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, water, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used¹⁴."

As highlighted earlier, apart from important different characteristics, indigenous peoples and local farming communities also share communalities. Both local farming and indigenous communities are often being deprived of their rights to culture, land, natural resources and knowledge. Both have developed local knowledge and production systems related to biodiversity. And both tend to have collective attitudes towards the ownership and use of biological resources. Faced with similar problems in relation to their traditional resources, all would probably benefit from synergy in facing up to the current privatisation challenges. There are key elements which can be argued for the rights of most local communities. Nevertheless, it is important that when arguing for the expansion of rights claimed and won by indigenous peoples into the wider arena of local communities, care be taken not to jeopardise the conquests achieved so far by the indigenous peoples: synergy should lead to greater overall empowerement of all groups, if not it will be counter productive.

The first step to the development of a legal framework for the full articulation of local farming and indigenous communities rights related to biodiversity, must be their recognition as:

1. Stewards of (cultural, intellectual and scientific) knowledge and resources, including conservation, use and management of genetic resources, biological and natural resources, and ecosystems.

2. Innovators in the area of biodiversity. Their collective knowledge systems must be recognised as the result of timeless intelligent innovation, and their technology as the end product of proven application of such knowledge.

3. Practitioners of traditionally sustainable production systems: this applies both to the continued development of such systems, as to the potentiality for such systems to contribute to the future international sustainable development agenda.

Once a consensus is achieved on the above recognition of the special characteristics of local and indigenous communities, the next step is the articulation of the rights that lead to control over resources, both tangible and intangible. This is an important point. The recognition of rights over biodiversity at the local level has to lead to increased control over biodiversity management at that same level. Some of the recent practices in biodiversity prospecting through which -- at best -- companies return some financial and other benefits in exchange for access to biodiversity and related local knowledge, are clearly not an expression of a rights system. They are compensation schemes which might or might not be useful, but in most cases do not help local or indigenous communities in retaining and/or regaining control over their biological resources.

Darrell Posey, of the Working Group on Traditional Resources Rights (TRR), proposes that we are faced with a bundle of rights that can be utilised for protection, compensation, and conservation of knowledge and traditional resources central to the maintenance of indigenous peoples’ identity. TRR unites bundles of rights that already exist in international law and non-binding international agreements ('soft law') and practice, to strengthen the position of local communities before their national governments and the international community (see Box). Since many traditional communities have cosmosvisions in which objective/subjective, individual/collective, people/nature, form part of a conceptual continuos, the bundle of rights idea helps to bridge basic conceptual differences between western property paradigms and other traditional ways of understanding belonging¹⁵.

Although the TRR concept has been developed mainly from the perspectives of indigenous peoples, we understand that is, to a large extent, also applicable to traditional local farming communities. On the following pagers we identify three types of rights in the area of biodiversity that would be applicable to both local farming communities and indigenous peoples, and would form the basis for a rights system that retains and/or returns control to the local level.

Even though the concept of heritage has been mainly developed within the discussion on indigenous peoples rights, there are important elements that could and should be extended to all culturally distinct groups, such as traditional farming communities. A special report of the UN Economic and Social Council (ECOSOC) defines it as follows:

" ‘Heritage’ is everything that belongs to the distinct identity of a people and which is theirs to share, if they wish, with other people. It includes all things which international law regards as the creative production of human thought and craftsmanship, such as songs, stories, scientific knowledge and artworks. It also includes inheritances from the past and from nature, such as human remains, the natural features of the landscape, and naturally occurring species of plants and animals with which a people has long been connected"¹⁶. (Italics added).

Heritage is not perceived as property, but in terms of community and individual responsibility: it is a bundle of relationships, rather than a bundle of economic rights. An "object" has no meaning outside the context of those relationships. For indigenous peoples (and, we would argue, for most traditional farming communities), there are no western-style distinctions between intellectual and cultural property, between art and science, between creative inspiration and logical analysis. The same report quoted above, puts it this way:

"...all products of the human mind and hearth [are regarded] as interrelated, and as flowing from the same source: the relationships between the people and their land, their kinship with other living creatures that share the land, and with the spirit world¹⁷."

The loss of traditional knowledge and surrounding ecosystems is strongly linked to the destruction of local communities and the extinction of their cultures. This suggests that traditional knowledge and resources should be protected in order to guarantee the right to cultural survival¹⁸. Deriving from the above concept of property based on heritage, the logical conclusion is that the protection of both cultural and intellectual components is essential and indivisible, and crucial for cultural and economic survival and development. Heritage Rights are rights to ownership and control over knowledge and resources.

The notion that genetic resources and the local knowledge thereof cannot be separated and form the basis of one integrated heritage, is already being recognised in different circles. For example the latest (and seemingly almost final) draft by the Andean Pact expert group on regulating access to genetic resources recognises the indissolubility between genetic resources and associated knowledge¹⁹.

The concept of Heritage clearly extends to biodiversity and to farming communities, and is applicable in both the Convention on Biodiversity (CBD) and the FAO International Undertaking on Plant Genetic Resources. The IU initially defined plant genetic resources as the "heritage of mankind", a concept which in now being renegotiated to include the notion of national sovereignty, as stated in the CBD. It should, logically, also include the notion of local heritage rights if the already accepted Farmers’ Rights are to be taken seriously. Similarly, the CBD recognises the contribution and rights of local and indigenous communities, and when it comes to defining the implementation of its art. 8j, Heritage Rights should form one of its basic elements.

Tenurial rights for indigenous peoples have been recognised under international law in the 1989 ILO Convention 169: "The right of ownership, collective or individual, of the members of the population concerned over the lands which these population traditionally occupy shall be recognised²⁰. Territorial rights are further guaranteed in the draft Declaration of the Rights of Indigenous Peoples, based on the distinctive and profound relationship with the total environment of lands, territories, and resources²¹.

If indigenous peoples -- and we would argue that most traditional local farming communities -- have a special inalienable relationship with the land, land tenure is indivisible from control over traditional knowledge and resources. The ECOSOC study quoted earlier takes this as a starting point: "The protection of cultural and intellectual property is connected fundamentally with the realisation of the territorial rights and self-determination of indigenous peoples"²².

As to rural populations, the FAO 1979 Peasants’ Charter, seen above, states that the rural poor should be the subject of "substantial reorganisation of land tenure and land redistribution to landless peasants and smallholders". The FAO also states, in a report of the Commission on Food Security, that "land tenure rights could lead to increased [food] production"²³. There already exists a lot of literature and experiences backing up that statement²⁴. Land tenure would also lead to more sustainable ecosystem management and conservation. Unless local communities have long term security over the land they work, they will not be able to invest in the long term measures that are needed to conserve, maintain, and further develop agricultural biodiversity. Since traditional technology is locality specific, it could be argued that the right to the use and development of such technology is tied to tenurial rights. This notion is not only relevant for indigenous peoples, but also for farming communities and for the conservation and use of agricultural biodiversity at the local level.

Both the IU and the CBD offer ample opportunities to incorporate Territorial and Tenurial rights into their already agreed texts and principles. One of the implementing mechanisms of both Farmers’ Rights (in the IU) and the rights of local and indigenous communities (in the CBD) could very well be the principle of improved security over the land through Territorial and Tenurial rights.

One of the greatest drawbacks of western-style property rights, including intellectual property rights (IPRs), is that they are individual and privately held. Seen from the perspective discussed above, heritage embodies a communal right, and territoriality stems from the collective relationship to the land. Both heritage and territoriality are inalienable non-individual rights. Both of them are elements of communal rights which have been recognised for indigenous peoples by international law. We would argue that such recognition must also be extended to local farming communities, especially as they relate to the management and conservation of biodiversity at the local level.

One of the basic elements on which communal rights rests is collective ownership. Collective ownership is not time framed, but refer to past, present and future rights. It is accretional, informal, and includes over-time cumulative innovations and knowledge. Therefore, communal rights imply the rights to use, conserve, define, share, and benefit from, knowledge and resources.

may serve to justify the sharing of benefits, but more than that they should be a tool to enhance control over resources and knowledge, and incentivate their use and further development. The right to collective property should lead to a recognition of non-western collective intellectual property rights. If defined well, both Farmers Rights (in the IU) and the rights of local and indigenous communities (in the CBD, art. 8j.) could be mechanisms for such rights as they relate to genetic resources and biodiversity. Communal rights would also be a step in the right direction for the definitions of "sui generis" rights as called for in the GATT/TRIPs agreement (art. 27.3), and also to meet the call for "adequate and effective protection of intellectual property rights" in the CBD (art. 16.2).

By their very nature, the categories of rights we have been describing up to now are somewhat general and mutually overlapping. This is so because our departure point includes non-western paradigms, in which holistic, integrated perspectives substitute analytical and uni-dimensional worldviews. There is not - and should not be - one linear and uniform rights system which would cover all the issues at stake. In that context it is important to keep referring to the "bundle of rights" concept. Heritage, Territoriality and Communal Rights, are all part of that same bundle. It is important to keep this overall picture in mind when starting to define more in detail what those rights should entail and how they should be implemented.

Several proposals from the NGO camp using the "bundle" approach have already been put forward: Intellectual Integrity Framework (RAFI)²⁵, Traditional Resources Rights (TRR)²⁶, and the Community Intellectual Rights (TWN)²⁷. Indigenous peoples collectives have also called for bundles of rights, as in the Mataatua Declaration²⁸ and the COICA Statement²⁹, among others. All of them subvert the contemporary western IPRs regime. What these proposals and our discussions here also have in common is that they tend to go beyond the swap technology/money for biodiversity approach. The rights regimes discussed here are also intended to provide for increased control over biological resources by local and indigenous communities. This is important to keep in mind, especially because virtually all international negotiations related to biodiversity do not specifically address local control of biodiversity management as a way of promoting overall biodiversity conservation and sustainable use.

As pointed out earlier, there are many different fora where the issue of rights over and access to biodiversity is being discussed. These are fora at the international level -- such a CBD, FAO and GATT -- at the regional levels, such as the Andean Pact and several free trade zones, and at the national levels where discussions on national biodiversity plans and related legislation are being held. In this paper we have been focusing mostly on the negotiations at the international level, especially FAO and CBD. Rather than discussing the different fora separately, we take a number of central issues related to rights which we see as major discussion points in all of them. They relate to control over and access to biological resources and associated knowledge, in the context of the community rights discussion above.

Negotiations at the international level are carried out by governments on behalf of their people. In the context of our proposals to define and implement a rights concept that returns or retains control at the local level, this presents both problems and opportunities. The obvious problem is that many governments agree to one thing at the international level, but do different back home. The opportunity is that international agreements can (if they say the right thing) be used as tools to exert pressure at national and local levels I [in] order to change policies and practices. In that sense, the fight for a well defined community rights system at the international level is nothing more that the struggle to create space for those working for change at national and local levels.

The international discussions on the legal status of biodiversity have taken some important turns over the last years. In the early 1980s, when developing countries took the discussion on plant genetic resources to the FAO, their strategy was to fight for free access to all genetic resources, including the ones held by the North and developed by private industries. The IU thus incorporated the concept of all genetic resources being ‘common heritage of mankind’ which should be freely available. The North immediately (and rightly) saw this as an attack on their IPRs systems, and most industrialised countries formally put up reservations to the IU. But by the end of the 1980s, after a decade of further privatisation and strengthening of IPRs systems in the North, the South had to conclude that the common heritage strategy had not worked. It then moved towards the position that genetic resources -- and biodiversity in general -- are subject to national sovereignty. This concept was formally incorporated into the IU in 1991, and constitutes one of the basic premises of the CBD signed in 1992.

The concept of national sovereignty has been both applauded and criticised. In any case, there is a clear need to define the relationship between state rights and those of local communities, if states are to increasingly assume sovereignty over natural and biological resources, to avoid undermining the role -- and further disempowerment -- of those managing biodiversity at the local level. In the end, national legislation is needed that clearly defines the relationship between governments and local communities within their territory. Such legislation should guarantee effective communal rights, while at the same time meeting the obligations acquired through adherence to international conventions. A possibility would be for states to act as custodians of local community resources. This would be based on the development and implementation of clearly defined mechanisms for participation and control of local community rights³⁰.

Indigenous and local communities have many experiences that justify their usual mistrust in governments. In this context, a distinction should be made between rights of indigenous peoples to self determination, as already internationally recognised, and those of local farming communities in general. Indigenous peoples claim what was historically theirs as nations, while non-indigenous local farming communities must construe their rights before the state.

The justification for sovereign states multilaterally agreeing on measures to promote community rights is twofold:

1. Both in the CBD (in art. 8J) and in the IU (through Farmers Rights), the international community has already recognised that farmers and local and indigenous communities have rights on their biological diversity [and associated knowledge]. It also agreed that these rights need further definition and implementation.

2. Both in the CBD and in the IU, the international community has already recognised that farmers and local and indigenous communities play an important role in the conservation and sustainable use of biodiversity, and that this role should be protected and promoted. One way of doing so is to implement community rights over biodiversity.

If enforceable national legislation on community rights is an important goal, then some minimum standards, multilaterally agreed at the international level, would foster the meeting of that goal. In fact, the CBD Secretariat already listed a number of measures that governments may consider for the implementation of CBD’s acquired obligations with local and indigenous communities under art. 8j. The recommendations include: State recognition of communal rights; State recognition of appropriately defined forms of indigenous property rights, including the ability to control access to genetic resources within their territory and control over production and marketing; access to the formal legal system and to financial and technical resources; and the modification of "perverse" genetic resource and agricultural policies³¹. These, and other measures that promote comprehensive community rights, could be further defined and incorporated -- as an agreed interpretation -- of both the CBD and the IU.

Central in the international biodiversity discussion is the question of conditions to access to the biological resources involved. In its simplest terms the discussion could be characterised as one between gene-poor but technology rich countries (the North) who need easy access to genetic resources for their bio-industries, on the one hand, and gene-rich, but technology poor countries (the South) who are willing to give access, but preferably under the most favourable conditions, on the other. Although this is clearly an oversimplification, much of the discussions in the CBD and the IU are centred around this dichotomy.

Both the CBD and the IU (as is now being renegotiated) talk about sharing the benefits. In the CBD, the benefits are shared through "the mutually agreed terms" on which access is granted. In a renegotiated IU the benefits would ideally be shared through an expanded Farmers´ Rights.

The main problem with the discussions on access in both the CBD and the IU is that it comes in language clearly geared to facilitate access to raw genetic resources and associated knowledge for northern industrial sectors: the typical "resources for technology/funding" deal. Industrialised countries want guaranteed access to genetic resources and are ready to put, in exchange, some money and technology transfer on the table.

Another problem with bi-lateral agreements is that they are negotiated and signed by the "contracting parties" (the governments and/or private parties), with no necessary references to local actors involved in biodiversity management. For example, the CBD specifies that access shall be subject to prior informed consent of the country providing the resources (art. 15.5), and that the sharing of the benefits of the use of such resources is a matter to be dealt with the country providing them (art. 15.7).

In line with our argumentation for a "bundle" of community rights based on Heritage, Territoriality and Communality, the interpretation of the conditions to access should go much further. As has been made clear so far in this paper, for local communities access is a matter of control, including the right to say NO to any proposal for collection or commercialisation of their biodiversity. If such a rights regime is acceptable, it has important implications for the "mutual agreed terms" on which access is granted. It implies prior informed consent also from the local communities involved, it implies direct sharing of the benefits (financially or otherwise) with the same communities, and it implies full participation of those communities in the definition of the "mutual agreed terms" and in the process of defining and implementing overall national policies related to the conservation and sustainable use of biodiversity. Perhaps most importantly, it also implies a direct challenge on the western IPRs system as a way to share benefits, to the extent that it undermines traditional community practices and rights structures.

While all of this might sound far beyond the current agreements such as the CBD and the IU, such interpretations are, in fact, fully in line with the agreed texts. To take the CBD as an example again: although the articles on access (15 and 16) do not specifically mention the role of local communities, other articles do. The already mentioned article 8j calls upon each Contracting Party to encourage the equitable sharing of the benefits resulting from the use of traditional knowledge and innovation by others. This indicates that equitable sharing should not only be between, but also within countries. In the article on sustainable use (art. 10), Parties also commit themselves to promote customary use of biological resources and to support local populations to develop remedial actions, all activities which would be promoted through a comprehensive community rights regime. The fact that the IU is currently under renegotiation gives ample opportunities to recognise and implement community rights. The very recognition that Farmers´ Rights exist and should be implemented give enough space for an holistic approach as to whom should be involved in defining access. In fact, the IU already grants farmers (and breeders) the right to decide over access to their materials: "breeders’ lines and farmers’ breeding material should only be available at the discretion of their developers...."³² .

In sum: the elements to consider, and develop, a comprehensive community rights scheme in relation to access to genetic resources already exists in the current agreements. It is a question of political will to implement them.

A third important issue in relation to the implementation of a community rights regime as proposed here, is the question whether the agreements should be based on bilateral or multilateral approaches. In this respect there is an important difference between the CBD and the IU. The CBD specifies that agreements (especially related to access and benefit sharing) should be reached on "mutually agreed terms" between the Contracting Parties. Although not specified, much of the language in -- and intentions behind -- the Convention is geared toward facilitating bilateral agreements. This is problematic and dangerous, as bilateral negotiations tend to play off weak and strong partners against each other, in which the stronger one (typically a company or industrialised country in search for access) ends up setting the conditions for the deal.

The IU, as it is now being renegotiated, tries to develop a broad multilateral approach to the conservation, use and sharing of the benefits of plant genetic resources important for agriculture (without excluding bilateral deals). The argumentation is that, in the case of agricultural biodiversity, there is a long history of "free exchange" of genetic resources on which current agriculture is build worldwide, resulting in mutual dependence on genetic resources of all countries. Additionally, the argument goes on, an institutional system is already in place, at least for the materials conserved ex-situ. While this argument holds true, a broad multilateral agreement also embodies risks. The main danger is that unless the agreement states very specifically the rules of the game with respect to a community rights regime and an access regime based on it, the deal ends up legitimising the current status quo. In fact, much of the criticism of the Farmers’ Rights concept as embodied in the IU from the side of local and indigenous communities, stems precisely from that concern.

In this context, it is of the greatest importance that the implementation of the CBD and the renegotiation of the IU are carried out in close harmony. At the moment there is a clear case for the negotiations on agricultural biodiversity being carried out in a specialised forum such as FAO Commission on Plant Genetic Resources, but ultimately the two processes should be tied together. In the past, GRAIN has already proposed that the renegotiated IU be incorporated into the CBD through a special protocol on agricultural biodiversity³³.

The conclusion, then, is that to avoid the pitfalls of both strictly bilateral and multilateral approaches, the rules of the game related to rights, access, and benefit sharing should be clearly spelled out. The COP of the CBD should develop, through a multilaterally agreed interpretation, a clear understanding of minimum conditions which any bilateral access framework should meet. Such an understanding should include a comprehensive community rights regime as outlined earlier in this paper. At the same, the renogotiation of the IU should lead to a comprehensive multilateral agreement on agricultural biodiversity, in which Farmers’ Rights is defined and implemented along the same lines. Unless a bottomline -- a floor -- related to community rights is clearly entrenched both in the CBD and in the IU, biodiversity will simply become even more a simple commodity for those who can afford to pay, and for those who happen to be in the position to set the conditions for sale.

The conclusions from the above discussion on the current international negotiations and instruments are threefold:

1. National Sovereignty over biodiversity is not incompatible with a strong community rights system based on Heritage, Territoriality and Communality, that retains and/or devolves part of the control over biodiversity to local farming and indigenous communities.

2. Neither the rules [in] the CBD that access be based on mutually agreed terms, nor the intention of the IU to reach a multilateral agreement on access to agricultural biodiversity with the least possible restrictions, are in conflict with a strong role for participation of local and indigenous communities in the setting of the terms and conditions to such access.

3. Bilateral and multilateral agreements, within both the CBD and the IU, need a clear definition of the rules of the game with respect to rights, access, and benefit sharing based on a community rights regime. This is a precondition to make sure that the objectives of both instruments (conservation, sustainable use and sharing of the benefits) are met, and to avoid that some of the most important actors in the conservation and sustainable use of biodiversity (local and indigenous communities) are further marginalised in the process.

Perhaps the best way to incorporate a community rights regime into both the CBD and the IU is by developing a sui generis rights system for local and indigenous communities. Such a system should be based on the principles of Heritage, Territoriality and Communality as discussed earlier and should truly protect the biological resources and related knowledge of such communities while at the same time furthering the objectives of both the CBD and the IU. In the CBD such a sui generis system could be build upon its art. 8j, as an agreed interpretation of all Contracting Parties. In the IU, it should be part of the wording of Farmer’s Rights which is currently under negotiations.

In fact, proposals for a sui generis system to protect biodiversity resources and innovation are already being worked on at regional and national levels. The committee of experts preparing legislation for the Andean Pact countries is already working on [has already suggested the development of] a parallel sui generis collective rights system for communities, based on recognition of communal rights, and on indissolubility of traditional resources and associated knowledge³⁴. At the national levels in Colombia³⁵, India³⁶, and the Philippines³⁷, similar proposals are being discussed at high levels.

It is understood that, due to the many different cultures, knowledge systems and communities involved, it is impossible to provide at the international level a blueprint for all the details of such a sui generis system. In the end, the aim is that at the national levels such a system is legislated and implemented. But this aim would be tremendously facilitated if the instruments at the international levels (i.e. CBD and IU) incorporate the main principles and elements of such a system, call upon their Parties to legislate and implement them, provide for technical and political assistance, and [facilitate] monitoring mechanisms to assess progress. It is also understood that none of this can be done without the full and equitable participation of the local and indigenous communities concerned, both at the national and international levels.

The design of such sui generis systems should be, and is, compatible with other international agreements, specifically the GATT-TRIPs agreement. This agreement calls for an "effective sui generis system", specifically for plants. Although the word "effective" was undoubtedly included by industrialised countries to reflect their concerns that the inventions of their industries be sufficiently protected, both the COP of the CBD and the governments renegotiating the IU could and should argue that no sui generis system is "effective" and complete without the full recognition of the rights of local and indigenous communities. In any case, and as already been argued by other studies³⁸, the agreements specifically dealing with biodiversity, such as the CBD and the IU, should supersede the more general GATT agreement on this matter.

Finally, there is the question of compatibility of such a sui generis system with the current western IPRs systems as applied to biodiversity. While there might be areas where the two systems can peacefully co-exist, there will also be areas where the western IPRs system in practice undermines the role of local and indigenous communities, and thus is in conflict with the proposed sui generis system. The CBD includes a clear demand on its Parties to ensure that the current IPRs system is supportive of and does not run counter to the objectives of the Convention (Art. 16.5). One of the Convention’s objectives is to ensure the equitable sharing of the benefits derived from the use of biodiversity, which is precisely also one of the aims of the proposed sui generis system. In that respect the COP of the CBD must regularly review where and how current IPRs systems and practices harm the objectives of the Convention and (as we would argue) the objectives of the proposed sui generis system, in order to work towards changes in IPRs laws that make them compatible with the conservation, use and equitable sharing of the benefits of biological diversity.

Footnotes:

1. RAFI, ‘Immortalizing’ the (Good?) Samaritan: Patents, Indigenous Peoples, and Human Genetic Genome Diversity, RAFI Communique, April 1993, Ottawa.

2. Pimbert, MP, and Pretty, UN, Parks, People and Professionals: Putting "participation" into protected area management. UNRISD, IIED, WWF, Geneva, 1995, ISSN 1012 65 11.

3. Mead, ATP, "Biodiversity, Community Integrity and the Second Colonialist Wave" in Abya Yala News (Journal of the South and Meso American Indian Rights Center): Vol. 8, No. 4, 1994, Oakland, California, pp. 6-8.

4. Crucible Group, People, Plants, and Patents, IDRC, Ottawa, 1994.

5. Marcus Colchester, "The International Response: Policies of the International Agencies", in Marcus Colchester and Larry Lohmann (eds.), The Struggle for Land and the Fate of the Forests, World Rainforest Movement, The Ecologist, Zed Books, London and Penang, 1993.

6. FAO, "International Undertaking on Plant Genetic Resources, annex II, Farmers’ Rights", Resolution 5/89, November 1989, Rome.

7. Singh Nijar, G, "A Conceptual Framework and Essential Elements of a Rights Regime for the Protection of Indigenous Rights and Biodiversity", in Biodiversity Convention Briefings, Third World Network, Penang, 1994.

8. ICCBD Interim Secretariat, "The rights of indigenous and local communities embodying traditional lifestyles: experience and potential for implementation of Article 8(j) of the Convention on Biological Diversity", UNEP/CBD/IC/2/14, 20 May 1994.

9. ICCBD Interim Secretariat, "The rights of indigenous and local communities embodying traditional lifestyles: experience and potential for implementation of Article 8(j) of the Convention on Biological Diversity", UNEP/CBD/IC/2/14, 20 May 1994.

10. United Nations International Labour Organisation, Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, Number 107, Geneva, 1957.

11. United Nations International Labour Organisation, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, Number 169, ILO, Geneva, 1989.

12. Marcus Colchester, Salvaging Nature: Indigenous peoples, protected areas and biodiversity conservation, UNRISD, WRM, WWF, Geneva, September 1994, 76 pp.

13. United Nations Commission on Human Rights, Draft Declaration on the Rights of Indigenous Peoples as Agreed upon by the Members of the Working Group at Its Eleventh Session, E/CN.4/Sub.2/1993/29.

14. United Nations Commission on Human Rights, Draft Declaration on the Rights of Indigenous Peoples as Agreed upon by the Members of the Working Group at Its Eleventh Session, E/CN.4/Sub.2/1993/29.

15. Darrell Posey, Traditional Resources Rights (TRR) Handbook, IDRC, Ottawa, 1995 (forthcoming).

16. Sub-Commission on Prevention of Discrimination and Protection on Minorities, of the Commission on Human Rights, Study on the protection of the cultural and intellectual property of indigenous peoples, UN Economic and Social Council (ECOSOC), E/CN.4/Sub.2/1993/28, 28 July 1993.

17. Sub-Commission on Prevention of Discrimination and Protection on Minorities, of the Commission on Human Rights, Study on the protection of the cultural and intellectual property of indigenous peoples, UN Economic and Social Council (ECOSOC), E/CN.4/Sub.2/1993/28, 28 July 1993.

18. Dinah Shelton, Fair Play, Fair Pay: Laws to Preserve Traditional Knowledge and Biological Resources, WWF, Gland, 1995.

19. JUNAC, Anteproyecto de decisión: Régimen común sobre protección, conservación y acceso a los recursos genéticos, Reunión de Expertos, Bolivia, mayo de 1995.

20. United Nations International Labour Organisation, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, Number 169, ILO, Geneva, 1989.

21. United Nations Commission on Human Rights, Draft Declaration on the Rights of Indigenous Peoples as Agreed upon by the Members of the Working Group at Its Eleventh Session, E/CN.4/Sub.2/1993/29. For an excellent discussion on indigenous peoples’ rights, see Marcus Colchester, Salvaging Nature: Indigenous Peoples, Protected Araes and Biodiversity Conservation, UNRISD, WRM and WWF, Geneva, 1994.

22. Sub-Commission on Prevention of Discrimination and Protection on Minorities, of the Commission on Human Rights, Study on the protection of the cultural and intellectual property of indigenous peoples, UN Economic and Social Council (ECOSOC), E/CN.4/Sub.2/1993/28, 28 July 1993.

23. FAO Committee on World Food Security, Potential for increasing staple food production for food security in low-income food-deficit countries, FAO/World Food Security/CFS/9/3/E, Rome, 1995.

24. See, for example, Solon L. Barraclough, An End to Hunger?: The Social Origins of Food Strategies, Zed Books Ltd., London, 1991; and Marcus Colchester and Lorry Lohman, The Struggles for Land and the Fate of the Forests, WRM, The Ecologist, Zed Books, Penang, 1993.

25. RAFI, Conserving Indigenous Knowledge: Integrating Two Systems of Innovation, UNDP, Geneva, 1994.

26. Darrell Posey, Traditional Resources Rights (TRR) Handbook, IDRC, Ottawa, 1995 (in press as of October).

27. Gurdial Singh Nijar, Towards a Legal Framework for Protecting Biological Diversity and Community Intellectual Rights, Third World Network, Nairobi, 1994.

28. Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples, Whakatane, Aotearoa New Zealand, 12-18 June 1993.

29. Statement: Basic points of Agreement from the COICA/UNDP Regional Meeting: Intellectual Property Rights and Biodiversity, Santa Cruz de la Sierra, Bolivia, 28-30 September 1994.

30. For one proposal on how to structure the relationship between states and local communities on biodiversity rights, see Gurdial Singh Nijar, "A Conceptual Framework and Essential Elements of a Rights Regime for the Protection of Indigenous Rights and Biodiversity", in TWN Biodiversity Convention Briefings, Third World Network, Penanag, 1994.

31. ICCBD, The rights of indigenous and local communities embodying traditional lifestyles: experience and potential for implementation of Article 8(j) of the Convention on Biological Diversity, UNEP/CBD/IC/2/14, 20 June-1 July, Nairobi.

32. International Undertaking on Plant Genetic Resources, Annex III. FAO, CPGR/93/ Inf. 2, March 1993.

33. GRAIN, Agricultural Biodiversity in the Convention, BioBriefing No. 4, part one, GRAIN, Barcelona, June 1994

34. JUNAC, Anteproyecto de decisión: Régimen común sobre protección, conservación y acceso a los recursos genéticos, Reunión de Expertos, Bolivia, mayo de 1995.

35. See, for example, the draft Proyecto de Ley por cual se regula la protección, conservación y uso de la diversidad biológica y los recursos genéticos, 1995, available from Instituto Latinoamericano de Servicios Legales Alternativos, Bogotá.

36. See M.S. Swaminathan (ed.), Farmers’ Rights and Plant Genetic Resources: Recognition and Reward: A Dialogue, Macmillan India Ltd., Madras, 1995.

37. See PG Fernández, OB Zamora and FJ Lara (eds.), IPR Sourcebook: Philippines, UPLBCA-MODE, 1995.

38. James Cameron and Zen Makuch, The UN biodiversity Convention and the WTO TRIPs Agreement. WWF, Gland, June 1995. RAFI, ‘Immortalizing’ the (Good?) Samaritan: Patents, Indigenous Peoples, and Human Genetic Genome Diversity, RAFI Communique, April 1993, Ottawa.

38. Pimbert, MP, and Pretty, UN, Parks, People and Professionals: Putting "participation" into protected area management. UNRISD, IIED, WWF, Geneva, 1995, ISSN 1012 65 11.

38. Mead, ATP, "Biodiversity, Community Integrity and the Second Colonialist Wave" in Abya Yala News (Journal of the South and Meso American Indian Rights Center): Vol. 8, No. 4, 1994, Oakland, California, pp. 6-8.

38. Crucible Group, People, Plants, and Patents, IDRC, Ottawa, 1994.

38. Marcus Colchester, "The International Response: Policies of the International Agencies", in Marcus Colchester and Larry Lohmann (eds.), The Struggle for Land and the Fate of the Forests, World Rainforest Movement, The Ecologist, Zed Books, London and Penang, 1993.

38. FAO, "International Undertaking on Plant Genetic Resources, annex II, Farmers’ Rights", Resolution 5/89, November 1989, Rome.

38. Singh Nijar, G, "A Conceptual Framework and Essential Elements of a Rights Regime for the Protection of Indigenous Rights and Biodiversity", in Biodiversity Convention Briefings, Third World Network, Penang, 1994.

38. ICCBD Interim Secretariat, "The rights of indigenous and local communities embodying traditional lifestyles: experience and potential for implementation of Article 8(j) of the Convention on Biological Diversity", UNEP/CBD/IC/2/14, 20 May 1994.

38. ICCBD Interim Secretariat, "The rights of indigenous and local communities embodying traditional lifestyles: experience and potential for implementation of Article 8(j) of the Convention on Biological Diversity", UNEP/CBD/IC/2/14, 20 May 1994.

38. United Nations International Labour Organisation, Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, Number 107, Geneva, 1957.