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

e subject to exclusive intellectual property rights, and represents a commoditization of the
complexity of biological diversity. Furthermore it embodies an apparently conflicting
knowledge system to that of indigenous and local communities who view cultural and
spiritual interaction with their environments as intrinsic to existence and lifestyle. To this
effect the CBD includes a number of elements which seek to balance holistic concerns with
reductionist ambitions. The ABS conditions of the CBD have thus been referred to as ‘the
grand bargain’ (Jeffery, M.I., 2005).
Few would disagree with the notion that the sharing of germplasm is beneficial to mankind,
because it allows the opportunity to research and develop new varieties that can be adapted to
different conditions. This should, in theory, have beneficial effects on food security and
agricultural biodiversity. 9 However, it is arguably the rapid change of institutional
arrangements that have meant only limited opportunity for the ‘equitable sharing of benefits’
and have allowed the disproportionate control and ownership of germplasm to come about.
Through economic rationalism it has been assumed that only through integrating biological
diversity into the market system can a situation whereby the ‘tragedy of open access’
resources can be avoided. However there are a considerable range of practical difficulties
relating to how benefit flows can actually be redistributed such that they improve the welfare
of indigenous and local custodian communities, and contribute to biodiversity conservation.
Furthermore, stopping the perspective of reductionism and commodification of life from
overwhelming the broader objectives of the CBD represents a challenge for the Conference of
the Parties. This challenge has been amplified with developments in subsequent international
laws and forums and has led to a great deal of implementation complications for national
governments.
The ABS system is essentially justified by two arguments: utilitarian justifications that
suggest that apportioning benefits to state authorities and custodian communities will assist
them in the conservation and sustainable use of biodiversity; and a justification that such
custodian communities have a right to benefits due to their contributions generation after
generation which would otherwise go unrecognised. This rights-based argument may be made
with reference to theories of human rights including Locke’s theories of property rights (see
section 2.9), and at a more local level it is beginning to be made in terms of ‘community
rights’.
In terms of utilitarian justifications it has been widely assumed that benefit sharing (monetary
profits or otherwise) will assist with biodiversity conservation and the maintenance of
traditional practices of local communities. This is problematic because there is little evidence
yet to suggest that it indeed will, particularly with regards to how the benefits can be equitably
shared with custodian communities such that it contributes to biodiversity conservation and
sustainable use (see for example Barrett and Lybbert, 2000). Apportioning benefits fairly may
be impossible or unfeasible. As Dutfield (2004) notes, new plant varieties are often the
product of generations of breeding and cross-breeding, which in turn are the result of
selection and breeding by farmers throughout the world and of the evolution of nondomesticated
varieties. The new variety may then have descended from numerous locations
and compensation of provider countries and communities may involve prohibitively high
transaction costs. This is not to suggest that benefits should not be shared, but rather it is
important to recognise the practical problems relating to the implementation of ABS regimes,
9 This is why ‘access’ has been enshrined as one of the key elements of the CBD.
12