8 Fabien Girard et al.
and knowledge. Even access laws, suffused with ideas about incentivising IPLCs’
“participation” in biodiversity conservation and assigning economic value to
resources and TK, were met with severe reservations as they shared some of the
shortcomings that affect sui generis IPRs.
At the same time, one element of paramount importance is worth stressing:
the Preparatory Committee and Working Groups tasked with the preparation
of the Rio Earth Summit, as well as the Ad Hoc Working Group and then
the Intergovernmental Negotiating Committee (INC) for a Convention on
Biological Diversity (see McGraw, 2017), had been working in a distinctive
political and intellectual environment asserting new bonds between “two strands
of international law [that] were being developed in relative isolation from one
another for quite some time” (Halewood, 1999, p. 965), namely human rights
law
25 and environmental law. Besides, as Halewood showed, based on interviews
and a review of archival materials, some delegates to the Ad Hoc Working Group
(primarily from Canada and Sweden) pushed for the inclusion of knowledge and
innovations of IPLCs in the CBD without having “clear ideas about the kinds
of national laws that would eventually be required to realize the objectives of
including the term in the agreement in the first place” (Halewood, 1999, n. 104).
This sort of “Trojan-horsing” of the CBD, whose primary aim was to ensure
“[…] that indigenous and local peoples would be included in future national
and international processes wherein such mechanisms would be defined” (ibid.),
also contributed towards bringing hermeneutic openness to the instrument, in
particular when read, as Posey astutely suggested, in conjunction with the Rio
Declaration and the Agenda 21 (UNCED, 1992; see Posey, 2004, p. 163).
By and large, it can be argued that, taken in their broad intellectual and
political contexts and read together with soft law instruments also adopted at the
Rio Conference, Articles 8( j) and 10(c) represented a landmark which w idened
the number of epistemic communities, players/stakeholders, constituencies
allowed and called upon to debate what Donna Haraway refers to as “naturein-the-making” (Harvey & Haraway, 2016), while Stengers (2005) and Latour
(2004) propose the term “cosmopolitical”. This has led to the establishment of
hard-won new exchange relationships through forms of resistance to cultural
homogenisation, unfolding a “cosmopolitanism from below” as Appadurai puts
it (2013), and opening up new discursive spaces for addressing complex ontological issues and initiating translation processes and boundary work (Fisher, 1988;
Löfmarck & Lidskog, 2017; Mollinga, 2010) across diverse epistemic boundaries.
The Politics of Biocultural Diversity
At a time when contracting parties are gradually implementing the CBD and
now the Nagoya Protocol,
26 “genetic resources” and “traditional knowledge”
are arguably still seen and treated by some as “resources” to be tapped into for
the development of new technologies amenable to the protection of IPRs (see
Bonneuil, 2019). However, the Earth Summit signalled a watershed moment,
and knowledge. Even access laws, suffused with ideas about incentivising IPLCs’
“participation” in biodiversity conservation and assigning economic value to
resources and TK, were met with severe reservations as they shared some of the
shortcomings that affect sui generis IPRs.
At the same time, one element of paramount importance is worth stressing:
the Preparatory Committee and Working Groups tasked with the preparation
of the Rio Earth Summit, as well as the Ad Hoc Working Group and then
the Intergovernmental Negotiating Committee (INC) for a Convention on
Biological Diversity (see McGraw, 2017), had been working in a distinctive
political and intellectual environment asserting new bonds between “two strands
of international law [that] were being developed in relative isolation from one
another for quite some time” (Halewood, 1999, p. 965), namely human rights
law
25 and environmental law. Besides, as Halewood showed, based on interviews
and a review of archival materials, some delegates to the Ad Hoc Working Group
(primarily from Canada and Sweden) pushed for the inclusion of knowledge and
innovations of IPLCs in the CBD without having “clear ideas about the kinds
of national laws that would eventually be required to realize the objectives of
including the term in the agreement in the first place” (Halewood, 1999, n. 104).
This sort of “Trojan-horsing” of the CBD, whose primary aim was to ensure
“[…] that indigenous and local peoples would be included in future national
and international processes wherein such mechanisms would be defined” (ibid.),
also contributed towards bringing hermeneutic openness to the instrument, in
particular when read, as Posey astutely suggested, in conjunction with the Rio
Declaration and the Agenda 21 (UNCED, 1992; see Posey, 2004, p. 163).
By and large, it can be argued that, taken in their broad intellectual and
political contexts and read together with soft law instruments also adopted at the
Rio Conference, Articles 8( j) and 10(c) represented a landmark which w idened
the number of epistemic communities, players/stakeholders, constituencies
allowed and called upon to debate what Donna Haraway refers to as “naturein-the-making” (Harvey & Haraway, 2016), while Stengers (2005) and Latour
(2004) propose the term “cosmopolitical”. This has led to the establishment of
hard-won new exchange relationships through forms of resistance to cultural
homogenisation, unfolding a “cosmopolitanism from below” as Appadurai puts
it (2013), and opening up new discursive spaces for addressing complex ontological issues and initiating translation processes and boundary work (Fisher, 1988;
Löfmarck & Lidskog, 2017; Mollinga, 2010) across diverse epistemic boundaries.
The Politics of Biocultural Diversity
At a time when contracting parties are gradually implementing the CBD and
now the Nagoya Protocol,
26 “genetic resources” and “traditional knowledge”
are arguably still seen and treated by some as “resources” to be tapped into for
the development of new technologies amenable to the protection of IPRs (see
Bonneuil, 2019). However, the Earth Summit signalled a watershed moment,