Community Protocols and Biocultural Rights 7
throughout the negotiations on “encouraging”, i.e. on making IPLCs and farmers
“participate”
19 in conservation activities as defined and fi nanced by the Global
North. The few inroads made into “protection” are primarily concerned with
incentivising traditional resource management systems,
20 rather than with shielding against the unauthorised commercial use of biological resources and associated TK.
21 As there is a growing recognition that IPLCs “have a vital role in
environmental management and development because of their knowledge and
traditional practices” (Rio Declaration, Principle 22), the main challenge and
matter of concern is to harness this potential towards conservation and rural
development through bilateral negotiations and “Coasean contracts” (Sedjo,
1992, pp. 207–208) between bioprospectors and communities.
At first sight, IPLCs sit rather uncomfortably within this new framework
which is also geared towards treating genetic resources and TK held by IPLCs
“as a commodity that will be traded by [them] in exchange for monetary and
non-monetary benefits […]” (Bavikatte et al., 2010, p. 294). In particular, as
Bavikatte et al. remarked,
the acknowledgement of market-alienable aspects of TK such as ILCs’
[indigenous and local community’s] ownership of their TK tends to mask
the existence of inalienable aspects of TK, such as IPLCs’ rights to their
traditional lands and to practise their cultures which are in effect the wellspring of their TK
(ibid., 296; Nemogá, 2019, p. 262).
22
The observation echoes criticisms that were levelled against proposals to endow
IPLCs with “tribal rights” (Greaves, 1996) or “community intellectual rights”
(Egzibher, 1996), in other words new kinds of sui generis rights supposedly better
suited to collective creations and innovation, but which remained largely modelled upon the Western intellectual property tradition. Certainly, these new ideas
were laudable – notably in the appeal to the “embedding concept” of tradition
(Strathern, 1996, p. 22) – and they are regularly summoned up in debates on
“biopiracy” (on which see Mgbeoji, 2006, p. 13; Hamilton, 2008) every time
tensions between activists and bioprospectors resurface. They nevertheless raised
serious concerns and limitations. First, insofar as farmers’ varieties (landraces)
are concerned, intellectual property-style rights may have a disruptive effect on
the flow and exchange of valuable genetic materials and a propensity to create
tensions between communities (Correa, 2016; Srinivasan, 2016).
23 Second, as the
concept of ownership over seeds, plants, and TK is alien to some cultures (Tsosie,
2007), it was felt that their inception might adversely affect the cosmologies of
certain communities (Anderson, 2015, pp. 769, 771, 777; Posey, 1995), and they
might actually unwillingly serve to expand the religion of property.
24
On the face of it, as the CBD began to be implemented, neither ABS mechanisms nor sui generis intellectual property laws appeared to offer robust and
uncontroversial tools for IPLCs to secure their rights over their own resources
throughout the negotiations on “encouraging”, i.e. on making IPLCs and farmers
“participate”
19 in conservation activities as defined and fi nanced by the Global
North. The few inroads made into “protection” are primarily concerned with
incentivising traditional resource management systems,
20 rather than with shielding against the unauthorised commercial use of biological resources and associated TK.
21 As there is a growing recognition that IPLCs “have a vital role in
environmental management and development because of their knowledge and
traditional practices” (Rio Declaration, Principle 22), the main challenge and
matter of concern is to harness this potential towards conservation and rural
development through bilateral negotiations and “Coasean contracts” (Sedjo,
1992, pp. 207–208) between bioprospectors and communities.
At first sight, IPLCs sit rather uncomfortably within this new framework
which is also geared towards treating genetic resources and TK held by IPLCs
“as a commodity that will be traded by [them] in exchange for monetary and
non-monetary benefits […]” (Bavikatte et al., 2010, p. 294). In particular, as
Bavikatte et al. remarked,
the acknowledgement of market-alienable aspects of TK such as ILCs’
[indigenous and local community’s] ownership of their TK tends to mask
the existence of inalienable aspects of TK, such as IPLCs’ rights to their
traditional lands and to practise their cultures which are in effect the wellspring of their TK
(ibid., 296; Nemogá, 2019, p. 262).
22
The observation echoes criticisms that were levelled against proposals to endow
IPLCs with “tribal rights” (Greaves, 1996) or “community intellectual rights”
(Egzibher, 1996), in other words new kinds of sui generis rights supposedly better
suited to collective creations and innovation, but which remained largely modelled upon the Western intellectual property tradition. Certainly, these new ideas
were laudable – notably in the appeal to the “embedding concept” of tradition
(Strathern, 1996, p. 22) – and they are regularly summoned up in debates on
“biopiracy” (on which see Mgbeoji, 2006, p. 13; Hamilton, 2008) every time
tensions between activists and bioprospectors resurface. They nevertheless raised
serious concerns and limitations. First, insofar as farmers’ varieties (landraces)
are concerned, intellectual property-style rights may have a disruptive effect on
the flow and exchange of valuable genetic materials and a propensity to create
tensions between communities (Correa, 2016; Srinivasan, 2016).
23 Second, as the
concept of ownership over seeds, plants, and TK is alien to some cultures (Tsosie,
2007), it was felt that their inception might adversely affect the cosmologies of
certain communities (Anderson, 2015, pp. 769, 771, 777; Posey, 1995), and they
might actually unwillingly serve to expand the religion of property.
24
On the face of it, as the CBD began to be implemented, neither ABS mechanisms nor sui generis intellectual property laws appeared to offer robust and
uncontroversial tools for IPLCs to secure their rights over their own resources