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COMENTARIO A LEGISLACIÓN

Quito, 3 de junio de 2002.

Estimado Señor Ministro

de Justicia y Derechos Humanos

República Argentina

Es un gran placer tener la oportunidad de revisar el proyecto "Ley de Identidad y Organización de los Pueblos y Naciones Aborígenes de la República Argentina" Dicha propuesta posibilitara el desarrollo económico y social de las comunidades con bases jurídicas justas y bien reflexionadas.

Mi área de expertise es la economía de biodiversidad y he trabajado muchos años sobre directrices de acceso de recursos genéticos y conocimientos asociados. Sincero al aseverar que el patrimonio natural y cultural solo pueden ser protegidos contra la biopiratería y biofraude cuando exista un mosaico institucional de respaldo legal y mecanismos de vigencia. Este Proyecto Ley es un gran avance hacia el fin de un verdadero desarrollo sostenible.

Atentamente, 

Joseph Henry VOGEL, PhD
Profesor de Economía, FLACO-Ecuador

Opinión by Joseph Henry VOGEL Ph D

Although the Convention on Biological Diversity is perfectly clear regarding the sovereignty of member States over their biological resources and their right to seek compensation on a ‘fair and equitable basis, the Convention on Biological Diversity is not as clear regarding the rights of traditional communities over the knowledge associated with those resources. Weak language is characteristic of all  mention of community rights. For example, in the Preamble, Paragraph 12,

The Contracting Parties,

Recognizing the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components,... [italics mine]

As the anthropologist Darrell Posey (1996, p. 7) discerns, “The word ‘desirability’ in itself, is hardly strong enough to bind the State to legal implementation, besides which, no criteria for or mechanisms to implement this concept are provided in the Convention on Biological Diversity or elsewhere.” Although preambles are aspirational and not legally binding, not much stronger language is found in the articles. For example, in the often cited Article 8(j), Each Contracting Party shall,...

Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.

Professor of Law Dinah Shelton (1995, p. 25), like Posey, is also quite circumspect: “...the state’s obligations are limited to ‘encouraging’ the equitable sharing of benefits. No right to compensation is explicitly recognized.” Despite non-committal wording like ‘desirability’ and ‘encouraging,’ one can argue that the language of the Convention on Biological Diversity is sufficiently strong to enforce benefit sharing. The word ‘approval’ in Article 8(j) would logically enable ‘holders of such knowledge’ to withhold that knowledge if they do not perceive “equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.” Just as the implication of sovereignty in Articles 3 and 15 enable countries to withhold access to genetic resources if they do not perceive an equitable sharing of benefits. The withholding of ‘approval’ by traditional communities can become a powerful legal basis to exact payment.

Unfortunately, the Convention on Biological Diversity does not define ‘approval’ in the text nor does it provide a glossary. Nevertheless, the term ‘prior informed consent’ is utilized elsewhere in the Convention on Biological Diversity to describe the approval by the State of access to genetic resources. For example, Article 15.5:

Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.

Inasmuch as the State will require ‘prior informed consent’ to access the physical material, it seems conservative to assume that traditional communities will be able to apply the same standard for access to traditional knowledge. Hence, ‘approval’ in Article 8(j) can be inferred as meaning ‘prior informed consent.’

What is prior informed consent? According to a fairly exhaustive legal analysis of the Convention on Biological Diversity by Glowka, et al. (1994, pp. 80-1):

Prior informed consent in this case may be described as

1. consent of the Contracting Party which is the genetic resource provider (an affirmative act),

2. based on information provided by the potential genetic resource user,

3. prior to consent being granted.

By analogy, prior informed consent for access to traditional knowledge would constitute

1. consent of the Contracting Parties [N.B., the deliberate use here of the plural ‘Parties’ rather than singular ‘Party’; knowledge is usually diffused across communities) which are the traditional knowledge providers (an affirmative act)],

2. based on information provided by the traditional knowledge user (the biotechnology representative),

3. prior to consent for access being granted.

Like benefit sharing for access to biological diversity, the requirement of prior informed consent will be most enforceable in those countries which have ratified the Convention on Biological Diversity and agree that ‘approval’ implies prior informed consent. To safeguard traditional knowledge against expropriation by industries in those countries that have not yet ratified the Convention on Biological Diversity (e.g., the US), one must identify a legal mechanism for the protection of traditional knowledge within the existing IP regime binding on those countries.

This challenge becomes even more daunting when one considers the ambiguous and confusing language of Article 16.5:

The Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives. 

The phrase “subject to national legislation and international law” means that the Parties to the Convention on Biological Diversity must respect the existing IP regime in any attempt to benefit from the use of traditional knowledge in biotechnologies; the phrase “to ensure such rights are supportive of and do not run counter to its objectives” means that whatever Intellectual Property Rights chosen must achieve benefit sharing as set forth in the aforementioned articles of the Convention on Biological Diversity. Although a sui generis legislation is the logical solution and probably the intent of Article 16.5, it is currently not an option. There are precious few options that are truly feasible.

The legislation that it is proposed for the Argentine Republic by Professor Teodora Zamudio would allow an important step in the pointed question.

Joseph Henry VOGEL, PhD

1979-87 Rutgers University, New Brunswick, NJ. PhD-economía. Tesis: "The Economic Implications of Sociobiology and Evolution as an Entropy-Driven Process: An Economic Model".

1984-86 Harvard University, Cambridge, MA. Estudiante visitante, invitado por el Prof. E.O. Wilson. Department of Evolutionary Biology.

1977-78 American Graduate School of International Management, Glendale, AZ. MIM (Masters of Business Administration in International Management).

1974-77 Duke University, Durham, NC. BA - chemistry and Spanish.

1994    Professor of Economy. Facultad Latinoamericana de Ciencias Sociales [FLACSO] Quito, Ecuador.