Governance and Micropolitics of Traditional ... - IPRsonline.org

The Article has its origins with the 1962 UN Resolution 1803 which makes a Declaration of
Permanent Sovereignty over Natural Resources. The above article has been important for
countries that feel they have had their biological materials exploited by bioprospecting, the
sharing of genetic resources and previously through the CGIAR system, without adequate
compensation. It allows countries to assert that they alone have the authority to control access
to genetic resources.
Article 15, Paragraph 2 requires countries to ‘facilitate access to genetic resources’, which has
been a bone of contention, considering the misappropriations of said resources that have
occurred in the past. Therefore Article 15.5 requires that ‘Access to genetic resources shall be
subject to prior informed consent of the Contracting Party providing such resources, unless
otherwise determined by that Party.’
Thus prior informed consent (PIC) basically relates to a contract between the provider and the
user. What is often unclear is who can be considered a provider. For the most part it will be a
state authority with control over biodiversity, or one of its various forms, due to the
sovereignty assertion in Article 15.1. But some countries also extend PIC to local
communities, establishing ‘tiers’ of PIC (Laird, S.A and Noejovich, F, 2002 – see p190).
Article 16 on access and transfer of technology states under Paragraph 5 that: ‘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.’
At the time of drafting there were already a substantial number of cases whereby access to
genetic resources had been facilitated without appropriate transfer of technology or benefits,
and without adequate recognition of the rights of the original holders of those resources. In
other words genetic material had been accessed from ex situ gene banks (see CGIAR section),
or from bioprospecting activities and utilized for research without agreed terms over adequate
compensation or sharing of the resulting technology (benefit sharing), or PIC. Hence the
terms ‘access’, ‘benefit sharing’ and ‘prior informed consent’ have become both useful and
controversial pillars for negotiations and legislative development towards fairness and equity
in transaction that involve the use, research, commercialisation and potential proprietisation
of such resources and knowledge.
The CBD contains text not only on the first, holistic goal of conservation of biological
diversity; it breaks it down into its component parts. The term ‘biological diversity’ includes
diversity within species, between species and of ecosystems, and refers to ecological
complexes to which these are a part (CBD 1992). There is some scepticism that a more
holistic approach to the conservation of biological diversity, one which recognises this
complexity, has been undermined by scientific genetic reductionism 8 and by placing exclusive
rights on such resources. One of the primary economic values (besides that achieved via
tourism or basic agriculture) that can be placed on biological diversity is through research on
its genetic components for use in food (agro-biotechnologies) and medicines
(pharmaceuticals). This effectively means that genetic components utilised for invention may
8 Genetic reductionism refers to the conceptual reduction of the complexity of biological diversity to its core
elements - genes.
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