6 Fabien Girard et al.
and industry (mainly) from the “Global North” was sought with the p ermission
of the provider country.
11 An additional and central goal was that access permission could be granted subject to a benefit-sharing agreement made under
mutually agreed terms (MATs) between the user (e.g. researcher, pharmaceutical
industry, and plant breeding industry) and the provider country (i.e. inter-state
benefit-sharing) and then between the State and a community (i.e. intra-state
benefit-sharing) (Morgera et al., 2014, p. 25).
12 The backbone of the new regime
was dubbed by scholars as the “Grand Bargain”, i.e. a grand (and oversimplified) narrative striving to harmoniously articulate efforts at “bioprospecting” or
“ biodiscovery” (collection and screening activities for R&D) and conservation.
As one of the champions of “bioprospection” put it, “[s]ystematic screening, by
developed and developing countries working together could pay off for both
while aiding conservation efforts” (Eisner, 1989, p. 31).
The underlying assumption is transparent: the CBD links the conservation of
biodiversity with the market value of its components – the “biological resources”
– which are amenable to the protection of IPRs (Boisvert & Vivien, 2012,
p. 1166). The reasoning is that biodiversity-rich countries (the Global South),
now able to capture part of the benefits arising out of IPRs on “biodiscovery”
or to benefit directly from new (“environmentally sound”) technologies through
“technology-for-nature swaps”,
13 are deemed better equipped and, above all,
incentivised to tackle the erosion of biodiversity (Sedjo, 1992).
14
This initial focus was significantly altered by the nascent international human
rights-based approach of the United Nations Conference on Environment and
Development (UNEP) negotiations defending Indigenous peoples (Halewood,
1999, pp. 955, 965). For IPLC advocates, the impending strengthening of IPRs
15
made it more pressing to reinforce communities’ control over the use of their
knowledge and innovations and to secure some form of benefit-sharing. Hence,
there were strong pushes from several quarters for intellectual property-style
(sui generis) rights for IPLCs and small-scale farmers,
16 but not without serious
objections as to the feasibility of IPRs on genetic resources and TK held by
IPLCs. Questions were raised about the appropriateness of relying on instruments underwritten by certain assumptions about what is “nature” (Hamilton,
2008), “creation”, or “cultures” (Coombe, 1998, p. 247), about the role of market economy in conservation (McAfee, 1999, p. 144), and about communities’
“interest in commercializing their knowledge” (Brush, 2001, p. 521). More
far-reaching proposals were also brought to the forefront, as some IPLC proponents argued that land rights and the right to self-determination
17 were the only
way forward.
18
None of these concerns are obvious in the provisions of the CBD. Admittedly,
Article 10(c) of the CBD (like Article 8( j)) voluntarily retained an open- textured
nature (Halewood, 1999, p. 978; Posey, 2004, p. 163), leading to a twofold (heavily qualified) (Glowka et al., 1996, p. 62) obligation being put on contracting
parties, namely to “[p]rotect and encourage customary use of biological resources
[…]” (emphasis added). In reality, however, there was an almost exclusive focus
and industry (mainly) from the “Global North” was sought with the p ermission
of the provider country.
11 An additional and central goal was that access permission could be granted subject to a benefit-sharing agreement made under
mutually agreed terms (MATs) between the user (e.g. researcher, pharmaceutical
industry, and plant breeding industry) and the provider country (i.e. inter-state
benefit-sharing) and then between the State and a community (i.e. intra-state
benefit-sharing) (Morgera et al., 2014, p. 25).
12 The backbone of the new regime
was dubbed by scholars as the “Grand Bargain”, i.e. a grand (and oversimplified) narrative striving to harmoniously articulate efforts at “bioprospecting” or
“ biodiscovery” (collection and screening activities for R&D) and conservation.
As one of the champions of “bioprospection” put it, “[s]ystematic screening, by
developed and developing countries working together could pay off for both
while aiding conservation efforts” (Eisner, 1989, p. 31).
The underlying assumption is transparent: the CBD links the conservation of
biodiversity with the market value of its components – the “biological resources”
– which are amenable to the protection of IPRs (Boisvert & Vivien, 2012,
p. 1166). The reasoning is that biodiversity-rich countries (the Global South),
now able to capture part of the benefits arising out of IPRs on “biodiscovery”
or to benefit directly from new (“environmentally sound”) technologies through
“technology-for-nature swaps”,
13 are deemed better equipped and, above all,
incentivised to tackle the erosion of biodiversity (Sedjo, 1992).
14
This initial focus was significantly altered by the nascent international human
rights-based approach of the United Nations Conference on Environment and
Development (UNEP) negotiations defending Indigenous peoples (Halewood,
1999, pp. 955, 965). For IPLC advocates, the impending strengthening of IPRs
15
made it more pressing to reinforce communities’ control over the use of their
knowledge and innovations and to secure some form of benefit-sharing. Hence,
there were strong pushes from several quarters for intellectual property-style
(sui generis) rights for IPLCs and small-scale farmers,
16 but not without serious
objections as to the feasibility of IPRs on genetic resources and TK held by
IPLCs. Questions were raised about the appropriateness of relying on instruments underwritten by certain assumptions about what is “nature” (Hamilton,
2008), “creation”, or “cultures” (Coombe, 1998, p. 247), about the role of market economy in conservation (McAfee, 1999, p. 144), and about communities’
“interest in commercializing their knowledge” (Brush, 2001, p. 521). More
far-reaching proposals were also brought to the forefront, as some IPLC proponents argued that land rights and the right to self-determination
17 were the only
way forward.
18
None of these concerns are obvious in the provisions of the CBD. Admittedly,
Article 10(c) of the CBD (like Article 8( j)) voluntarily retained an open- textured
nature (Halewood, 1999, p. 978; Posey, 2004, p. 163), leading to a twofold (heavily qualified) (Glowka et al., 1996, p. 62) obligation being put on contracting
parties, namely to “[p]rotect and encourage customary use of biological resources
[…]” (emphasis added). In reality, however, there was an almost exclusive focus