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Introduction
The issue of access and sharing of benefits derived from natural resources has led to many debates on the international arena. Dross & Wolff (9) are of the view that many countries in the world today are enthusiastic about this access and sharing of the benefits. This is given the fact that the national legislations surrounding this issue tend to be limited in scope. There are also a lot of expectations on the part of the host nations regarding the benefits expected from this access.
This development led to the formulation of the Convention on Biological Diversity (herein referred to as CBD) principles that seek to recognize the sovereign rights of nations as far as the natural resources within their boundaries is concerned. Article fifteen of the Convention on biological diversity introduced the concept of Access and Benefit Sharing (herein referred to as ABS). This concept provides that countries host to the natural resource wield the right and obligation to put in place measures aimed at ensuring that they share in the benefits derived from the use of those natural resources (Dross & Wolff 11).
However, it is important to put into context the state of affairs before the introduction of the access and benefit sharing concept. According to ICIMOD (1), before the formulation and implementation of ABS, access and utilization of genetic resources and other forms of traditional knowledge was a phenomenon that could have been accessed by any person in the world. This is regardless of the fact that the person accessing and utilizing the genetic resources and traditional knowledge may be coming from a totally different community or country in which the resources are to be found. The access was anything but regulated, and the indigenous communities rarely shared in the benefits accrued from use of their resources.
ICIMOD (1) is of the view that this lack of regulation led to large scale exploitation of natural resources and communities for a very long time. Industries such as pharmaceutical, food, cosmetic among others continued to access genetic resources and traditional knowledge from communities around the world without adhering to any regulations. For example, Dross & Wolff (12) reports the case of Kenya Wildlife Service (herein referred to as KWS), a wildlife and natural resources regulation organ in one of the African countries. This organization was claiming to share in the hundreds of millions of dollars accrued by industries in the United States of America that manufacture products using extracts of a plant that KWS claims was illegally imported from Kenya (Dross & Wolff 12).
Systematic exploitation of natural resources around the world by these industries was especially discernible from the beginning of the 18th century. This is when British and other colonialists in Africa and other developing nations opened up the territories to explorers from their industries. The colonialists accessed exotic plants from these nations, such as medicinal herbs and indigenous food plants (ICIMOD 1). Jonge (10) conceptualizes this as a one way transfer of knowledge and expertise. This is whereby the colonialists and explorers acquired knowledge from the natives while they offered little or no knowledge in return.
It is only near the end of the 1900s that efforts were made by the nations that felt they were being exploited and others around the world to regulate access to these resources and utilization of the same. This created the impetus for the formulation of the access and benefit sharing protocol as indicated earlier.
However, the sharing of these benefits was skewed, mainly emanating from the fact that definition of these benefits was limited to those tangible items such as royalty rights (Koopman 523). Also, the sharing of the benefits failed to trickle down to the local communities, the real custodians of the traditional knowledge and resources (ICIMOD 2: Koopman 524). This is given the fact that distribution of these benefits was limited at the government level, a level in which the local communities had little or no representation.
Access and benefit sharing has led to a conflict that remains largely unresolved between the developed and developed nations of the world. According to Tsioumani (2), this conflict especially emanates from article 14 of the convention on biodiversity development. The developing nations demand and expect the ABS concept to be a legally binding force that will protect their right to fair and equitable distribution of the benefits of genetic resources (Tsioumani 2).
These demands come from nations in the developing parts of the world such as Latin America, Africa and Southeast Asia. These are the same countries that had been exploited for long by the developed nations. In fact, the development in the so-called developed nations, according to Johnston (8), can be attributed to this exploitation and skewed distribution of benefits of resources.
The view held by the developing nations regarding access and utilization of natural resources is not shared by their developed counterparts. The reason why the developing nations make this demand is their concern that the developed nations are imposing resource conservation on them while at the same time denying them the opportunity to develop themselves by using the resources under their sovereignty (Gorski 4).
This research paper is going to look at this conflict over access and benefit sharing of natural resources between the developed and developing nations of the world. The paper will look in detail into the formulation and implementation of ABS and the arising conflict. A case study will be used to highlight the conflict between these two sides. The research paper will also look into the COP 10 negotiations in Nagoya, focusing on the negotiation processes and resulting protocol. This paper will mainly revolve around the Convention on Biological Diversity and related issues.
Background Information
As earlier stated, nations that were the source of genetic resources in the world- especially the developing nations- were becoming increasingly concerned with the exploitation of their resources by other nations, especially those from the developed regions. Against this backdrop, these nations found it necessary to impose restrictions over the access of these resources together with the riding traditional or indigenous knowledge (Schroeder & Pogge 286). To this end, they negotiated for an international regime that will enforce these restrictions. This gave birth to the Convention on Biological Diversity (CBD) in the year 1992 (Schroeder & Pogge 286).
The CBD tries to create a balance between the sovereign right of the resource providing nations to enjoy the benefits of the utilization of the resources on one hand and the right of the developed nations to have access to these resources (Jiang 32). Article 8(j) of the CBD confers recognition to the importance of indigenous body of knowledge, cultural practices and innovations. Article 15 provides that any parties interested in accessing the biodiversity resources should seek the informed consent of the local community (ICIMOD 4).
In the year 2001, the International Treaty on Plant Genetic Resources for Food and Agriculture (herein referred to as ITPGRFA) took effect (ICIMOD 5). This is one of the international treaties that provide support to the convention on biological diversity (CBD) concept. Like the CBD, ITPGRFA recognizes that genetic resources should no longer be conceptualized as a common heritage to the whole of mankind (Clapp & Dauvergne 22). The resource can not as such be freely accessed; rather, the resource providing nations have the right to restrict this access.
Convention on Biological Diversity: An Overview
Before embarking on the issues surrounding the conflict over access and benefit sharing, it is important to look at the historical origins of CBD. This is especially so given the fact that this convention is the core around which the access and benefits sharing conflict and other issues revolve.
The CBD was signed by 157 states in a World Summit that was held in Rio de Janeiro, Brazil, in 1992 (Dross & Wolff 11). This convention was put into force in the month of December, the following year. As stated, the convention originally bound 157 nations during its signing. This number rose to about 188 states in the last quarter of 2004 (Dross & Wolff 11). The European Union is one of the notable developed nations party to this signatory. Practically every nation in the world was party to this convention. However, there are notable exceptions such as the United States of America (Dross & Wolff 11).
One of the major and notable provisions of the CBD was its third pillar. This is the benefit sharing touching on the genetic resources of a given nation (Laird, Johnston, Wynberg, Lisinge & Lohan 6). This represented a paradigm shift in the access and utilization of natural resources around the world. Hitherto, these resources were regarded as heritage to mankind, and as such, accessible to any interested party with no restrictions. However, the CBD regarded this as the heritage of the nation state within which they are found, a fact that should be respected by other parties around the world. Herein lays the eye of the storm that is the conflict over access and benefit sharing.
The industrialized nations of the world preferred the definition and regulation of genetic resources as espoused under the auspices of the International Undertaking for Plant Genetic Resources. This body regarded the genetic resources as heritage to mankind, and can be accessed with no restrictions (Koopman 524). The notion of free access that was proposed by the developed nations at the start of the negotiations for this convention was fiercely opposed by the representatives. The result was that genetic resources were conferred an economic value, and information, including genetic and traditional information from local communities, became a commodity that could be traded on the world market.
Overview
In this section, a highlight of the method that will be used to conduct this study will be provided. The aim is to provide the reader with an analysis of the steps that will be taken in gathering and assessing information for this study.
Methods for Gathering Information
Source of Secondary Data: Literature Review
One objective of this study is to provide a brief temporal sequence of negotiations over the access and benefit sharing protocol. This will be achieved by gathering information from publications touching on convention on biological diversity (CBD). The publications will be accessed from the universitys library, the public library and other internet based data bases.
This paper will review and analyze the information presented by these articles critically. The aim will be to come up with information that is pertinent to this study, and to try and contextualize the current study within the field. The paper will also be interested in finding out what the publications on CBD say about conflict over access and benefit of genetic resources.
Use of Case Studies
Secondary data will also be used to analyze case studies touching on conflict over access and sharing of benefits of genetic resources. Two case studies will be used to highlight this issue. The case studies will be drawn up in a chronological manner. The aim of the case studies will be to provide evidence to the claim that conflicts at the multinational level has slowed down the negotiation process over access and benefit sharing.
The case studies will also highlight the conflicts that take place between the developed and technologically rich nations and the developing and technologically emaciated nations. The cases will prove that the developing nations use their sovereign rights to fend off the purported exploiters of their resources. In the conflict, the developing nations are using their abundant resources as their weapon while the developed nations are using their technological might.
Issues surrounding the conflict in the case studies will also be highlighted. Efforts to resolve the conflict will also be addressed, as well as the success or lack of it thereof of these efforts. For those cases that have not been resolved, there will be efforts to provide possible ways to solve them. For those already solved, alternatives to the solution will be identified and how they were treated by both parties.
Use of Interview
The study will also make use of key informant interview to gather qualitative data for this study. Already, the researcher has contacted a program officer working in Convention on Biological Diversity (CBD). After the COP 10 closes in November 2010, this program officer will introduce this writer to an official who is working on the access and benefit sharing issue. An interview will be carried out with this official regarding this matter.
Theoretical Framework
In this section, the reader will be provided with a view of the theoretical underpinnings that will be used in this study. The paper will identify the major theoretical thoughts that will inform the direction taken by the study. It is important to note that theories are very important facets in any academic field. They try to organize the thoughts and discourses of scholars in that particular field.
This study is no different, and it will use theoretical underpinnings that are to be found in the field of access and utilization of resources in the global arena.
Theoretical Underpinnings
Institutionalists Point of View
This paper will be written primarily from the institutionalists point of view (Clapp & Dauvergne 25). This view is concerned with the role that institutions play in the allocation and access of resources within communities. According to Litfin (5), institutions provide the rules that control the access to the resources. The institutions provide the means through which societies act on their ecological knowledge.
For example, the convention on biological diversity is a set of rules institutionally set in the society that inform the access of genetic resources and sharing of the benefits accrued from the use of these resources. The rules were formulated by representatives from different countries in the world, representatives of the governmental institutions.
Clap & Dauvergne (22) argue that for an effective management of resources, the institutions should come up with appropriate rules and norms governing the access and utilization of these resources. Appropriate rules and norms regime requires that resource providing nations should have the opportunity to use their resources to make a living from their environment. However, the rules should also recognize the fact that even foreign nations have the right to access and use these resources to make a living, albeit a regulated access.
Sovereignty Bargain Point of View
This point of view recognizes the sovereign nature of nation states. The perspective recognizes that nation states can enter into international agreements that are negotiated using their sovereign status (Clapp & Dauvergne 22).
In the case of genetic and other natural resources, it is recognized that the provider nations are sovereign entities, and this sovereignty should be respected by other countries in the world. The sovereign nation has the right to control their genetic resource by imposing restrictions on access and utilization. This is the reason why countries enter into international agreements and treaties.
A treaty is a legally binding set of rules ratified by the parties. For example, the CBD can be conceptualized as a legally binding set of rules binding together the more than 188 states who are signatories. The convention provides that the provider country will legitimize the access and utilization of genetic resources within its borders to the foreign nations. Without the consent of the provider nation, the foreign nation can not access or utilize the genetic resources held by the provider nation.
The provider nation and the foreign entity negotiate on the benefits that the provider nation will accrue from the access and utilization of the resources by the foreign nation. This is where the access and benefit sharing protocols come in. the provider nation has the right to share in the benefits accrued from utilization of the resources in its borders.
Brodys View of Resources, Biopiracy and Justice
Brody (70) is of the view that negotiations that led to the formulation and ratification of the conventional and biological diversity raised some issues that should be looked into as far as justice is concerned. The CBD raised issues of Biopiracy and justice in the access of and utilization of genetic resources. Brody (70) makes narrative and normative claims as far as CBD is concerned.
Brody (70) is of the view that one of the narrative claim for this convention is the fact that several principles were adopted by the signatories regarding the right of the sovereign states to control over their genetic resources. The various principles that were adopted were context specific, and they touched on the justice of the sovereign nation. The principles are not subject to the existing global principles touching on distributive justice (Winnibird 8). The aim was to address once and for all the issue of Biopiracy that comes with the uncontrolled exploitation of genetic resources by the developed nations. This is by recognizing the sovereign status of nation states and granting them the right to claim benefits of traditional intellectual property (Winnibird 7).
According to this scholar, sovereign nations have the right to control the access and utilization of resources in their territory. This right derives from the fact that these nations are sovereign, and as such, should not be abused by other nations around the world.
Case Studies
In this section, the paper will provide the reader with two case studies revolving around the issue of conflict over access and benefit sharing. The aim will be to give the ABS a realist face, to see how in actual sense the conflict takes place. The paper will especially focus on the issues around which the conflict revolved together with how the conflicts were resolved and alternatives to the solutions adopted.
Case Study 1: Biodiversity in the Amazon-The Cupuacu is ours Campaign in Brazil
This case study revolves around the conflict between a Brazilian based non-governmental organization and a Japanese food manufacturer. The Brazilian NGO aptly named Amazon Link was fighting for the rights of the local farmers and producers of products derived from the use of the extensive biodiversity lying within the Amazon belt (Amazon Link 2).
In their efforts to ensure that these local producers enjoyed the benefits of the resources from their region, the NGO was faced with hurdles that related to intellectual property rights. The name of one of the fruits that they were fighting over has been registered as a trademark within the European Union, the United States of America and in Japan. It was registered under the name of the Japanese food producer, Asahi Foods (Amazon Link 2).
The campaign to fight for the rights of the local community to enjoy the utilization of their resources gave rise to this campaign which was named Cupuacu is ours . Cupuacu was the name of the fruit over which the fight was carried out.
The Campaign
It is noted that the Amazon belt, an ecological jewel found within Brazil, hosts some of the most diverse forms of life in the world (Amazon Link 4: Tellez 1). It is home to one of the largest rain forests in the world, and the local government has taken it upon itself to conserve the ecosystem.
Many NGOs have made efforts to complement the policies made by the Brazilian government to protect the biodiversity of the Amazon and the traditional knowledge held by the native communities. The huge potential of the genetic resources in this ecosystem has led to an increase in the number of Biopiracy cases in Brazil. This development has created the impetus for the active participation of the NGOs in this region. Their activities have especially increased since the year 2002 (Tellez 1).
Amazon Link, the non-governmental organization that has been mentioned earlier, was created in late 2001 and was in operation by the year 2002 (Tellez 2). The initial mandate of this organization was to generate information regarding the diversity of the Amazon. It became especially passionate in its campaign to exert ethical ceilings to registration of trademarks and patenting of the traditional knowledge of the local communities (Tellez 2).
The conflict in this case arose when Amazon Link was making efforts to get buyers from the international market for the products of the local communities. During its efforts to market the Cupuacu fruit, the organization found that the name is a trademark belonging to a food producer in Japan (Tellez 2). Going by the provisions of the trademarks and intellectual property laws, a player in the market is prohibited from marketing products using a name or term that has already been registered. As such, the efforts by Amazon Link to market the products of Cupuacu fruit in the international market were thwarted. The organization could not market the products under the name Cupuacu, and this made it hard to convince consumers that the contents of the product were derived from the Cupuacu tree.
Amazon Link joined forces with the Amazonian Working Group (herein referred to as GTA), another NGO in the region, to fight the registration of the trademark by the Japanese company (Tellez 2). The aim of the campaign was to reverse the registration of the Cupuacu trademark under the intellectual property rights. The two NGOs also intended to create public awareness regarding the abuse of the traditional knowledge and other resources native to the Amazon basin.
The two NGOs were able to attract the attention of the local and international media, and were also able to make these entities rally behind them. The campaign also attracted the attention and support of the local and international community. The campaigned questioned the legality of granting the trademarks and patents to the Japanese company. The campaign successfully gave the registration of these trademarks a Biopiracy tag and undertone.
The Cupuacu campaign was a text book case of conflict over access and benefit sharing of genetic resources in the world. The campaign focused on procedures that should be followed under the local laws to ensure that the local communities shared in the benefits of utilization of resources in their region. The campaign also intended to assert the right of the country to fight Biopiracy under the various international treaties under which the country was granted the right to do so. This is especially so considering the fact that Brazil was party to the convention on biological diversity protocol and similar others that gave it the sovereign right to control access over and utilization of genetic and other natural resources within her borders.
The campaign petitioned the Brazilian government to take a leading role in fighting the registration and patenting of the name Cupuacu (Tellez 2). The campaign led to the initiation of legal proceedings to look into the matter in Japan. The legal aspect of the campaign aimed at having the Japanese Patent Office (herein referred to as JPO) cancel the registration of the name by Asahi Foods.
On March 1, 2004, the campaign achieved one of its objectives. The Japanese authorities cancelled the registration of the Cupuacu trademark (Tellez 2). The Japanese company was further instructed to stop manufacturing and processing seeds derived from the Cupuacu fruit and making the chocolate based product that it was hitherto marketing. If Asahi Foods contravened these laws, the Brazilian government was granted the powers to take international legal actions against the company.
The campaign by the Amazon Link and other NGOs gained popular support after it emerged that the agricultural research agency operated by the state in Brazil (referred to as EMBRAPA) had earlier made efforts to obtain an international patent for the processing of the Cupuacu seed and the products resulting from the process (Tellez 2). The product that the agency was seeking to patent was referred to as cupulate, and it had characteristics similar to the conventional chocolate in the market.
The success of the Cupuacu campaign has been the subject of many scholarly discourses touching on Biopiracy in the developing nations. It has been noted that the success of the campaign can be attributed by the ability of the Amazon Link and the other NGOs to rally the local communities, the Brazilian government and the international community at large to their cause. This is a lesson to parties wishing to wage such campaigns in the future. The establishment of national coordination is essential in creating a base for any campaign intended to make an impact at the international arena (Tellez 3).
It is a fact beyond doubt that the conflict over access and benefit sharing pitting the Brazilian natives against the Asahi Foods Company was resolved, perhaps to the satisfaction of both parties. However, one can not fail to identify alternatives to ways that the conflict could have been resolved. Asahi Foods had been enjoying the exclusive rights of the trademark Cupuacu since May 20, 1998 (Tellez 2). It can then be assumed that the company had made huge returns since that time till the settlement of the case on March, 2004, almost for a period of six years. It is also important to note that the natives in Brazil had not been sharing in these benefits for all these years.
As such, it would have only been fair to make Asahi Foods give the natives a share of these profits backdated six years. This way, the Brazilian natives would have enjoyed their rights, and full justice under the provisions of convention on biological diversity would have been identified.
Case Study 2: Kenya Wildlife Service vs. Procter & Gamble Company
This case study depicts the conflict over access and benefit sharing of genetic resources in Kenya, a developing country in the eastern part of Africa. The conflict pits Kenya wildlife service (herein referred to as KWS) on one hand and Procter & Gamble on the other. At stake here is Kenyan biological resources used by an American company to make detergents that brings millions of dollars to this company. In extension, the case puts into focus the exploitation of this countrys resources, with special focus on those resources that portend huge industrial potential (Mbaria 1).
Kenya, through the Kenya wildlife service is fighting for its share of the millions accrued from the marketing of a detergent and bleaching agent in the United States of America (Mbaria 2). The detergent is made from ingredients that KWS claims were obtained from Kenya illegally and without following the necessary procedures. This case is not unlike the Cupuacu case in Brazil, the only major difference been that registration of a trademark was not a central facet in the case. Parallels can be drawn between the two cases given that they both involved what can only be called illegal exploitation of resources from a developing nation by a developed nation.
The Conflict
The root of this conflict can be traced back to the year 1998. A group of researchers from the University of Leicester in Britain traveled to Kenya on a research expedition. They were led by Brian Jones, an employee of Genecor 9mbaria 5).
The researchers collected samples from several alkaline lakes found on the floor of the Great Rift Valley (Mbaria 5). The valley extends through Kenya to the neighboring Tanzania. The lakes included Magadi, Bogoria, Nakuru and Elementaita among others (Mbaria 6). The scientists found what they wanted from lake Bogoria and along the shores of lake Nakuru, with samples from all the other locations turning negative (Mbaria 6). The scientists were looking for traces of extremophiles, a group of organisms that can survive extreme conditions. These organisms formed the basis of the mass production of the detergent and bleaching agent in contention.
Just like in the case of Cupuacu in Brazil, KWS has sought the services of professionals and experts in the field of genetic resources and environmental law to represent their case. For example, this organization was greatly assisted by the International Center of Insect Physiology and Ecology (herein referred to as ICIPE) in filing of this claim (Mbaria 4). However, unlike the Cupuacu case, KWS is not seeking to have any trademark or intellectual property rights revoked. Rather, it is fighting for a share of the profits made by this company in the United States of America.
Genencor International BV has also been mentioned as the second defendant in this case. This is given the fact that it was the one that sold the formula for the bleach and detergent agent to Procter & Gamble. The Netherlands based company did this when it sold Tide Alternative Bleach Detergent to Procter & Gamble, together with the stonewashing material (Mbaria 2).
The scientists sent on expedition by Genencor stumbled onto extremophiles organisms from the samples taken from the lake. This company was able to clone these tiny organisms, and it sold them to Procter & Gamble (Mbaria 4). The latter used these organisms as the active elements for the production of the detergent. The scientists were able to reproduce the organisms in laboratory controlled environments, eliminating the need to get them from the source, Lake Bogoria in Kenya.
The significance of this case to the Kenyan biodiversity can not be ignored. This is given the fact that the determination of the case will inform the direction that Biopiracy in Kenya and the fight against it would assume in the future. If the outcome of the case favors Proctor & Gamble, this will embolden other corporations that are involved in the exploitation of biological resources from Kenya and in other African countries. On the other hand, if the outcomes are in favor of the Kenya wildlife service, the organization will have the motivation to fight other exploiters in the country who are carrying out their activities illegally.
The Kenya wildlife services have sought the assistance and counsel of an international legal team. The body has consulted the legal team at Public Interest Intellectual Property Advisors (herein referred to as PIIPA) in the United States of America (Mbaria 6). This is the legal team that is going to handle the case on behalf of the Kenya wildlife service.
The battle lines in this case have already been drawn, with Kenya adopting the approach of first tackling the two companies and later going after other companies that have benefited from this discovery (Mbaria 7).
Kenya is signatory to the convention on biological diversity (CBD) protocol, just like Brazil. This country is banking on this affiliation to fight its case in the corridors of international justice system (Mbaria 7).
From the facts of the case, it is obvious that the local communities around the lake have not benefited from the resources in their region. The illegality of the actions by Genencor emanate from the fact that the company failed to seek the approval of the local Kalenjin community before shipping the sample back to the United States of America (Mbaria 8). The samples were practically smuggled out of the country.
Mbaria (4) alludes to the fact that corruption on the part of the Kenya wildlife service management at the time of the expedition could have led to this development. The scientists were not approved by the Kenyan Ministry of Education, and it is hard to imagine that they may have collected the samples without the knowledge of
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