Common Pools of Genetic Resources

Equity and Innovation in International Biodiversity Law

Evanson Chege Kamau, Gerd Winter

• Publisher: Routledge
• Year: 2013
• Topic: Economics
• eBook ISBN:
  9781135069698
• Subtopic: Development Economics
• Index: Economics

The Convention on Biological Diversity (CBD) strives for the sustainable and equitable utilization of genetic resources, with the ultimate goal of conserving biodiversity. The CBD and the Nagoya Protocol which has since been elaborated suggest a bilateral model for access to genetic resources and the sharing of benefits from their utilization. There is concern that the bilateral exchange "genetic resource for benefit sharing" could have disappointing results because providers are left out of the process of research and development, benefits are difficult to be traced to sources, and providers owning the same resource may complain of being excluded from benefit sharing. Thus, the CBD objective of full utilization and equitability may become flawed.

Common Pools of Genetic Resources: Equity and Innovation in International Biodiversity Law suggests common pools as a complementary approach to bilateralism. This is one of the first books to reply to a number of complex legal questions related to the interpretation and implementation of the Nagoya Protocol. Taking an inductive approach, it describes existing pools and analyzes how they are organized and how they perform in terms of joint R&D and benefit sharing. It presents case studies of the most characteristic types of common pools, provides suggestions for further developing existing pools to cope with the requirements of the CBD and NP and, at the same time uses the clauses these conventions contain to open up for commons approaches.

Written by a team of expert academics and practitioners in the field, this innovative book makes a timely and valuable contribution to academic and policy debates in international environmental law, international biodiversity law, intellectual property law, climate law and the law of indigenous populations.

Introduction

1 Common pools of genetic resources and related traditional and modern knowledge

An overview

Gerd Winter

Setting the theoretical stage

This book is about the use of genetic resources (GR) and traditional knowledge (TK) associated with GR. Besides TK, it also addresses scientific or ‘modern’ knowledge (MK) related to GR. The use of GR and TK/MK for research and development (R&D) is socio-legally organized in many forms. The most common are ‘free appropriation and use’, ‘property and market’ and ‘common pools’.

‘Free appropriation and use’ allows for access without prior consent of the resource holder and for unlimited use.¹ The concept has been used widely for many resources and in many regions. This was possible, because regulation by states and communities hosting the resources was either lacking or not adhered to. The Convention on Biological Diversity (CBD) and the Nagoya Protocol (NP) elaborated and encouraged the concept of ‘property and market’, which was a clear acknowledgement of states’ sovereign rights over their GR and of local and indigenous communities’ ownership over their TK, as specified by their domestic legal frameworks. This gives states and communities the right to regulate access to GR/TK and receive benefits drawn from them (‘access regulation and benefit sharing’ – ABS). This implies that ‘free appropriation and use’ is confined to national territories in which no state or customary law establishing ABS exists, as well as to the ocean areas beyond national jurisdiction. It is assumed that ‘property and market’ will foster research and development of GR and TK and stimulate states and communities providing them to conserve biodiversity. The major tool for achieving ABS is envisaged in the exchange between providers allowing access to GR or TK and users having to share benefits that arise from their use.

However, this bilateral exchange, ‘genetic resource for benefit sharing’, may have disappointing results that miss the initial vision of equity and have adverse effects on the other two goals, that is, to enable research and development of GR/TK and conserve biodiversity. Equity may be prejudiced in two regards, which can be called ‘horizontal’ and ‘vertical’. In the ‘horizontal’ dimension of equity, that is, among states hosting the same resource and indigenous and local communities holding the same TK, the provider of the resource or TK is entitled to take all benefit shares, thus excluding the others which may be prompted to lower their access conditions in a competitive race to the bottom. In the ‘vertical’ dimension, that is, between providers and users, providers may forego benefit shares because of difficulties in monitoring the process of research, development and commercialization, if the process is – as is often the case – intertwined and lengthy.² This may lead them to constrict the allowable uses, thus hindering the emergence of the very benefits that they wish to attract, and jeopardizing both sustainable uses of GR/TK and biodiversity protection (Winter 2009; Chapter 15).

These deficiencies might be alleviated in the third socio-legal form of GR and TK/MK use: common pools.³ A common pool may very generally be defined as resources that are provided by resource holders for common use by a group of people. The common use of resources in our context means that resource holders cooperate in the preservation of their resources, and that providers and users of GR and TK/MK enter into cooperative R&D, allowing enhancement of their own capacity and sharing in the resulting non-monetary and monetary benefits. This means that providers of resources become users when participating in the R&D process, and users become providers by feeding their R&D results into the pool. In this way equity can be achieved in both the horizontal and vertical dimensions, research and development of GR and TK is enabled, and resources and incentives to preserve biodiversity are provided.

Common pools of this kind are not new inventions but have existed for a long time. Examples include seed exchange systems, networks of botanical and zoological gardens, networks of microbial collections and biological databanks.

However, commons – ideal as they appear to attain equity and free R&D for sustainable use and protection of biodiversity – are exposed to problems of construction. These problems are caused by the dilemma that commons must persist in individualist societies. The nature of this dilemma, however, differs under the so-called old and new commons. The major dilemma of old commons (such as in livestock grazing and marine fisheries) is the tragedy of overuse, that is, that free use may lead to overexploitation of the resource by free-riders. This effect is less important in new commons, that is, the exchange of GR and TK/MK, because, as for GR, natural resources are impaired hardly at all if small samples are taken for research and development, and, as for TK/MK, information cannot be exhausted (Hess and Ostrom 2007). New commons suffer from a different dilemma: that free use may prevent participants from supplying their own GR, knowledge and gain to the commons, thus impoverishing its stock (Halewood et al. 2012: 14ff.). This dilemma can be called a tragedy of under-supply for the commons. It is reinforced by the ABS system because resource holders are affirmed as proprietors and encouraged to make individual use of their rights,⁴ which means that they would opt for the ‘property and market’ concept. The dilemma could be solved by placing a duty on users to feed their own material, knowledge and gain into the pool, and by enhancing the participatory rights and opportunities of providers within the pool. In that way it may be possible to avoid the problem of under-supply for the new commons. As with the old commons, there is no tragedy (in the old sense of inescapable fate) for the new commons but the choice to establish appropriate rules.

In conclusion, two perspectives of study appear to have emerged, one looking from ABS to pools and one from pools to ABS: The ABS epistemic community, grounded on the paradigm of ‘property and market’, is interested in pools as a means to solve some of the equity deficiencies. On the other hand, the commons epistemic community starts with the de facto communality of GR and TK/MK and its beneficial function for R&D. In that view, pools should rather be defended against ABS claims of individual providers in order to preserve their useful performance. But the community, of course, accepts the need to pay tribute to ABS requirements.

While the contributions in this book can be grouped into those which tend to take the first perspective, and those which favour the second,⁵ the book as a whole brings both views together considering that the CBD and NP, while opening themselves up to common pools, also insist that this should be consistent with the CBD/NP objectives, including the sovereign right of provider states to regulate access and ask for benefit sharing. Taking an inductive approach, the book strives to portray a variety of pools in order to understand under which conditions they develop and how they contribute to the equitable sharing of benefits, innovative sustainable uses of GR and, finally, to the conservation of biodiversity.

Structure and content of the book

There are different ways of structuring a book on common pools of GR, TK and MK. One important dimension is the kind of resource included in the pool:

• The GR may be ‘wild’, as, for instance, the forest produce of an indigenous and local community or state, or ‘cultivated’, for example, by farmers’ collectives or transnational breeders’ exchange networks.

• The pool may comprise collections of biological material or databases of GR-related information.

• The knowledge recorded in databases or other media may be ‘traditional’ or ‘modern’.

• The pooled GR or related TK/MK may be concerned with plants, animals, microorganisms or biological agents.

All these differences of content will influence the choice of the basic organizational concept and, if that is a pool, they will shape the structure and rules of the pools. Just to give a few examples: certain highly developed crops have been pooled in the formalized multilateral system of the ITPGRFA and many less developed landraces in informal seed exchange systems (Chapters 5 and 17). In contrast, fish for aquaculture is still very much organized in settings of ‘free appropriation and use’ or ‘property and market’ (Chapters 9 and 10). TK is largely pooled by oral tradition while MK is rather saved in databases and print media (Chapter 13).

According to another dimension, pools can be structured by the level and nature of law regulating the pool:

• Many pools are local and subject to customary law, such as traditional holders of medicinal knowledge in Africa and Brazil (Chapters 2, 3 and 4) and local farmers’ collectives in Peru (Chapter 5).

• Others have been – or it is proposed that they be – organized by states as in Brazil, Malaysia, China and Norway (Chapters 6, 7, 8 and 9).

• Many common pools of GR are transnationally organized, with transnational meaning that management is self-regulated by participants rather than governments and spans national borders.⁶ Two subcategories of transnational pools can be distinguished here: collections of GR and related knowledge which invite material and open use by anyone on the globe, such as botanical gardens, microbial collections and biological and genomics databases (see examples in Chapters 10 and 11) and networks or metastructures of collaborating collections (Chapters 12, 13, 14 and 16).

• Only very few pools of GR have been given an international law framework like the multilateral system of the ITPGRFA mentioned above (Chapters 15 and 17), or may emerge, such as a regional system for East Africa and a global system for GR in the marine areas beyond national jurisdiction (Chapters 18 and 19).

As the organizational dimension is somewhat less complex than the content-related dimension, we have chosen it for the structure of the book. This will be reiterated when the individual contributions are summarized.

Looking at the overall results of the contributions, one of the first impressions is the great variety of pool design, which in a way justifies the bottom-up approach of the book. The variety concerns many issues, such as:

• the kind of resource that is the object of the pool;

• the overall goal of the participants;

• who is allowed, invited or even required to submit material and knowledge to the pool;

• the quality criteria the material and knowledge must fulfil;

• how the material and knowledge are maintained;

• whether the traceability of the material and the knowledge of their source material is ensured;

• who has access to the pool and under which conditions;

• the obligations that are imposed concerning the utilization of material and knowledge, and the sharing of benefits;

• how benefits flowing into the pool are allocated.

Individual contributions to the book

As indicated, the book is structured according to the levels of law that provide a framework for common pools. These can be local customary law, national legislation, transnational rules and international law.

Local approaches

The section on local approaches encompasses studies on the pooling or other organization of traditional medicinal knowledge and local seed breeding. The local communities holding and fostering the GR and TK understand their resources to be socially embedded. They all face problems of competition with the modern commodified sector and with the possibility that the product of their experience and work will be used by the modern sector without benefit sharing. They strive to strengthen their organizational framework in order to cope with those challenges.

In their chapter on ‘Common pools of traditional knowledge: the story of the Kukula traditional health practitioners of Bushbuckridge, Kruger to Canyons (K2C) Biosphere Reserve, South Africa’, Gino Cocchiaro and Britta Rutert present a case study that shows how the scattered and endangered knowledge of traditional healers has won new strength through the formation of a knowledge pool. The authors first describe the many challenges that the healers living in the K2C Biosphere Reserve have experienced, including the exploitation of their knowledge by researchers without being informed about its use and sharing of benefits, as well as difficulties of access to wild plants due to restrictive rules in nature reserves and competing unsustainable harvesting. With the assistance of UNESCO, the healers gradually formed an association that provided the framework for developing rules and practices on the mutual sharing of healing knowledge, training programmes, the compilation of a community protocol and the allocation of funds from monetary contributions. The customary law they practise concerning third party access to their knowledge is of particular interest. In principle, the healers share their knowledge on a reciprocal basis, expecting that those who receive it will also provide their knowledge or, if they are students, will commit themselves to become healers. Academic researchers are nevertheless allowed access, provided they disclose the nature of the research, ask for consent if the intent changes, and engage in sharing benefits in case of commercialization. These customary rules are supported by the South African legislation, which is, however, still waiting for more specific regulation, the Bushbuckridge case being regarded as a learning example. The authors illustrate the access practices by summarizing the negotiations between the association and a local cosmetics company concerning knowledge about medicinal plants for hair and skin nourishment. One agreement, among other clauses, prevents the transfer of any knowledge to third persons. A benefit-sharing agreement was postponed until such time that bioprospecting had led to a viable product. The authors conclude their chapter by highlighting the two major goals of the TK pool, that is, to maintain the sanctity of culture inherent in the knowledge, and to organize the transfer of the knowledge for benefits that secure the livelihood of their communities.

In his chapter on ‘Common pools of traditional knowledge and related genetic resources: a case study of San-Hoodia’, Evanson Chege Kamau sheds new light on the often-told story of the southern African people of the San and their knowledge about the Hoodia plant and its use, highlighting the common pool aspects of the case. The author starts by explaining that ethnic San now live scattered over several states but that knowledge about the properties of the Hoodia plant, and notably its capacity to suppress appetite, is traditional and common to all of them. He describes the various steps taken by the San to claim a share in the monetary benefit from the use of Hoodia. This claim was furthered by the fact that the San gradually organized themselves transnationally, thus forming a kind of pool of stakes in the use of their TK. A major achievement was the conclusion of two agreements providing the payment of royalties, one with the South African Council for Scientific and Industrial Research (CSIR) which holds a patent on a biochemical compound of the plant, and the other with the Southern African Hoodia Growers Association (SAHGA). As of now, no other agreement has been reached with holders of patents on Hoodia except the one with CSIR. Based on this, Kamau evaluates the pool and its activities. Looking at ‘horizontal’ equity, he points to the successful endeavour of the San to include all scattered groups across state boundaries and to distribute funds for projects helping all of them. In regard to ‘vertical’ equity, Kamau acknowledges the organizational basis the San created in order to defend their interests, but also sees flaws, such as its failure to include more holders of intellectual property rights in Hoodia genes or derivatives. Finally, in terms of the conservation of biodiversity, he points to the commitment within the agreements to ensure sustainable use of the plant. This may trigger measures of conservation of the Hoodia plant, which has become endangered due to overexploitation.

In his chapter, ‘Reinventing traditional medicine: Pacari and its struggle towards health, environmental protection and benefit sharing’, John Bernhard Kleba starts by emphasizing the high relevance of traditional medicinal practices (TMPs) for complementary healthcare, especially for the poor and for the development of drugs. Kleba asks about the patterns of self-reproduction of TMPs, focusing empirically on Pacari, an association of indigenous and local communities in the Brazilian Cerrado struggling for the right to exercise and protect their customary practices. One of the findings is that TMPs are introducing modern concepts in a very selective way, maintaining their heritage of social institutions and a traditional health ethos. However, TMPs are threatened in three major policy areas: the health surveillance regulation has drifted them into illegality; the erosion of the biodiversity hotspot Cerrado and the enclosure of lands are subtracting the pool of medicinal plants; and the regulatory adjudication of ABS rights is failing to protect new uses of traditional knowledge. These pressures are counteracted by Pacari, with good bottom-up medicinal practices developed by the association (Pacari), sustainable extractivism and the publication of its common property knowledge. Outstanding achievements are the establishment of pharmacia vivas (living pharmacies) which serve local and poor communities, the conclusion of agreements with landowners to allow sustainable harvesting of medicinal plants, and the publication of medicinal knowledge, which was not only meant as an improvement of common knowledge but also as a defensive strategy of prepublication against claims for intellectual property. According to Kleba, the association can also serve to actively ask for benefit sharing concerning new uses of knowledge and plants that were obtained before the CBD came into force. In conclusion, Kleba highlights the fact that the Pacari association treats traditional knowledge not as something static but as permanently developing. He warns, however, that in spite of its relative success, all efforts remain fragile and thus depend upon strong partnerships and favourable changes in policy and law.

In their chapter ‘Guardians of the seed: the role of Andean farmers in the caring and sharing of agrobiodiversity’, Mario Tapia and Brendan ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• List of figures
• List of tables
• Notes on contributors
• Foreword
• Preface
• Abbreviations
• Introduction
• PART I Local approaches
• PART II National approaches
• PART III Transnational approaches
• PART IV International approaches
• Index