CBD Process

In addition to the progress in the field of culture and heritage, parallel processes in the area of biodiversity conservation were also taking place. The CBD adopted in 1992 was a

formalization of a number of former initiatives in the 1980s. The most important precursor to the CBD included the following. In 1983, the Food and Agriculture Organization (FAO) adopted the International Undertaking on Plant Genetic Resources for Food and Agriculture (hereafter FAO’s International Undertaking),¹⁶⁷ which was the first international instrument to recognize the critical importance of indigenous peoples and local communities including

167 See Resolution 8/83. For further reading, see FAO website (http://www.fao.org/Ag/cgrfa/iu.htm) and the Commission on Genetic Resources for Food and Agriculture established in 1983 via its web link

(http://www.fao.org/nr/cgrfa/cgrfa-about/cgrfa-history/en/). The negotiations finally concluded via the adoption of an International Treaty on Plant Genetic Resources for Food and Agriculture by the FAO Conference on 3 November 2001.

IK for conservation of crop diversity. The FAO’s International Undertaking was the

precursor that provided important context and foundation for the CBD to build on (Burhenne-Guilmin 2008).¹⁶⁸ Subsequent policy initiative such as the influential Brundtland Report of 1987 further linked the concept of biodiversity¹⁶⁹ with sustainable development, as discussed in the previous chapter (see section 3.2 of chapter 3). The Brundtland Report also installed state responsibility to natural resources, which was the first to do so, before the CBD.

After achieving a historical success with the UNDRIP, the CBD process for a protocol on access and benefit sharing (a.k.a. ABS) became the second battleground for indigenous peoples in international treaty-making. The CBD process that took six years to negotiate a supplementary agreement was finally adopted in 2010 and came to be known as the ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity’ (a.k.a.

Nagoya Protocol, enforced only recently on 12 October 2014). The Nagoya Protocol marked the latest legal advancement in communal rights following the ICH Convention of 2003 and the UNDRIP of 2007. Although the UNDRIP is not a legally binding instrument, it has obtained the status of customary international law during its long and engaging process with the rights-holders over two decades (as discussed in the previous chapters). The Nagoya Protocol is considered by some as the latest advancement in regard to indigenous peoples’

collective rights and their IK. For example, Kabir Bavikatte & Daniel F. Robinson (2011) considered the Nagoya Protocol as marking a giant leap from the CBD that only contained weak provisions in regard to collective rights of communities, such as Article 8(j) and 10(c).

Most significantly, they considered this CBD process as contributing to an emerging

jurisprudence of biocultural rights, which was defined by them as the following (Bavikatte &

Robinson 2011, p. 50):

168 See Supra note 112.

169 The concept of biological diversity was coined by scientists to bring ecological, species and genetic diversity together (Burhenne-Guilmin 2008).

‘the theory and practice of applying a biocultural rights framework to law and policy, when such law and policy affects a community whose peoplehood is integrally tied to their traditional stewardship role and fiduciary duties vis-à-vis their lands and

concomitant knowledge’.

The merit of this emerging jurisprudence can be summarized as threefold. It established due recognition of the linkage between cultural diversity and biodiversity. It also took into account the role of communities in managing biocultural diversity. Furthermore, it codified communal rights in association with biocultural diversity and marked the latest legal development in communal rights (following the ICH Convention).

This is indeed a welcoming development. At the same time, it also calls upon us to take a closer examination, which leads to a number of further questions and concerns. Firstly, this framework of biocultural rights is specifically considered under the rubric of

environmental rights concerning conservation and sustainability. Secondly, it operates within the private property regime, which is the de facto practice of the CBD, as noted by a number of commentators including Bavikatte and Robinson (2011) discussed above. This is probably why the member-states did not stage their firewall of anxiety over the legal ramification of collective rights, which is the right to self-determination by association. While it is not difficult to work out the strategy to play it safe, by not rocking the boat to question the state or the property regime, it is difficult not to raise questions and concerns about the

implications. The following will further discuss these two problematic areas.

As the introductory section of this chapter indicated (i.e. section 1.1), the CBD adopted the concept of biocultural heritage for its future work during the negotiation process for the Nagoya Protocol. By revisiting the CBCH concept (‘collective bio-cultural heritage’) discussed above, one can see the merit of this emerging jurisprudence for biocultural rights reflected some of the key principles of CBCH discussed in the introductory section of this chapter. These included: 1) addressing biodiversity and culture together to reflect the holistic approach of many indigenous peoples and local communities, and 2) recognizing the role of

community and their collective rights. However, it left out the third principle, which is taking into account knowledge as heritage and not property, to reflect its custodianship and

intergenerational character. Indigenous peoples’ conceptualization of IK includes genetic materials that are part of their collective cultural identity and their right to self-determination.

Therefore, this is a concerning area for indigenous peoples that calls for further examination.

As a number of commentators have pointed out, the governing body of the CBD known as the Conference of Parties (COP) does not take ownership of its own convention in regard to issues concerning intellectual property (Corpuz 2009, Drahos 2004). In effect, the COP has ‘deferred developments on TGKP [traditional group knowledge and practice]

largely to WIPO’ (Drahos 2004, p. 14). In other words, biocultural diversity is now at the disposal of commercial claims of IPR. As discussed in chapter 2, the IPRs regime recognizes both the human person and corporate entity as rightful beneficiaries. In most cases, the corporations outweigh any individual person, demonstrated by the funding arrangement of the WIPO (May 2006). Clearly, the corporations have more power and leverage to run the show at WIPO. This is deeply problematic and concerning for indigenous peoples who do not see biocultural diversity or their CBCH as commodities for sale. In addition, it is difficult for indigenous peoples to have a voice during the WIPO process, which is often conducted via closed-door negotiation. WIPO is known to be inhospitable and non-participatory for indigenous peoples who are barely considered by the WIPO as stake-holders or share-holders. Moreover, WIPO has continued to dismiss recommendations from the UN system calling upon it to adopt the UNDRIP into its policy and operation.¹⁷⁰

170 Its lack of structural commitment to indigenous peoples’ rights is again demonstrated by the current crisis in regard to the funding arrangement known as the Voluntary Fund for indigenous peoples to participate at WIPO proceedings concerning the new treaties for IK. For a recent news report by the Intellectual Property Watch, an NGO monitoring organization, see ‘In “Great Shame,” WIPO Fund For Indigenous Peoples’ Participation Running Dry’ dated 26 April 2013: http://www.ip-watch.org/2013/04/26/in-great-shame-wipo-fund-for-indigenous-peoples-participation-running-dry/.

The second concern is in regard to the relevance of conservation and sustainable use of biodiversity. It is unclear who decides what is conservation or what is sustainable use, and furthermore, sustainable for what and for whom? Measured by the notorious record of conservation, which disproportionally harmed indigenous peoples, it is clear that indigenous peoples are neither the decision makers nor beneficiaries. This raises serious questions about human rights.¹⁷¹ Furthermore, as discussed in the previous chapter, the conservation

paradigm’s outdated obsession with the idea of ‘pristine nature’ and ‘wilderness’ that

disconnected human from nature also raises serious questions about its operation and whether it is part of a solution or the problem for sustainable development.

The stakes are high, not only from the vantage point of the profit-seeking capitalist looking for the next frontier to cash in on, but also the detriment of the environment and increasingly violent displacement and dispossession experienced by indigenous peoples. As the trend continues, indigenous peoples may no longer be able to maintain and contribute their collective biocultural heritage that can benefit us all. Furthermore, it led us to ask the more fundamental question, how do we perceive biocultural diversity? Is it part of our humanity hence common heritage? Or, is it subject to modern states’ sovereign control over access and usage, including granting commercial entities the rights to monopolize biocultural diversity as private property? Such trend of commercialization that places price tags on nature is already in practice, evident by the changing language by economists from natural resources to ‘natural capital’. Such conceptualization is transforming nature and natural resources into merchandise for the neoliberal market.¹⁷² The impact of this transformation is not yet fully understood by today’s scholarship. But a number of cases and studies have already shown worrying signs. For example, Joan Martinez-Alier’s analysis pointed out that

171 For further reading, see an extensive study on indigenous peoples’ rights and conservation by Ellen Desmet (2011).

172 For more discussion, see also chapter 5 (sections 1.1 and 2.2).

the market is about power and income, especially the power of consumption and the power to buy (Martinez-Alier 1997). In such a marketplace, the poor often sells cheap, and future generations of human as well as other species are not yet present to defend themselves.¹⁷³ As such, the market can hardly be qualified for sustainable development according to the World Conservation Strategy discussed in the previous chapter.¹⁷⁴ If the CBD is taking the lead on emerging jurisprudence of biocultural rights, given the concerns discussed in this chapter so far (especially concerning state-centric framework and private property approach), it is uncertain where it is going.

Moreover, is securing private property rights the answer to biocultural diversity?

Would marginalized groups like indigenous peoples benefit? In the previous chapters, I have already raised questions about the property regime. A recent study by Terra Lawson-Remer (2012, 2011) from a rarely explored perspective also led us to reconsider the conventional view about property security. Lawson-Remer’s study compared minority groups and the elite group (including foreign investors) to find the correlation between their property security and economic growth. Her finding demonstrated a strong correlation between securing property rights for elites and/or foreign investors and economic growth; but no correlation between securing property rights for minority groups and economic growth. Further study in this area with critical perspective like Lawson-Remer’s could help us to address more refined

questions about the dominating property regime and the monolithic approach of development that aimed for a particular kind of economic growth, which is exclusive rather than inclusive

173 See Joan Martinez-Alier (1997, p. 201-203) for an example case about a trade agreement signed between the National Biological Diversity Institute (a.k.a. INBio) of Costa Rica and a major pharmaceutical company Merck. This case demonstrated that it made no sense to perceive biocultural diversity by artificial borders defined by the modern states.

174 See the previous chapter (section 3 of chapter 3) for discussion on the discourse of poverty and conservation as well as sustainable development that takes into account future generations.

and incomplete (Lawson-Remer 2011: 27).¹⁷⁵ It could also help us to see who really benefits from such developmental scheme.

The next and final section before conclusion will build on the significant processes and advances discussed so far to further explore the critical bridges and groundwork for further consideration. As the linkages between cultural rights, the environment, and sustainable development gradually merge, they led me to consider a potential paradigm of dignity and well-being as an alternative framework that might provide better safeguards for collective cultural rights and biocultural diversity, which are essential for IK-holders.

IV. A Proposition: A Framework of Dignity (Human Rights) and Well-being