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

and to recognise that there are many other aspects to the conservation, sustainable use and
traditional knowledge of biological diversity.
What needs to be recognised is that Article 8(j) is not simply about the equitable sharing of
benefits, as has been the emphasis of so many countries and fora. The Article encourages
countries to ‘respect, preserve and maintain knowledge, innovations and practices of
indigenous and local communities embodying traditional lifestyles’. This also similarly
asserted in CBD Article 10(c) on sustainable use. This is not achieved through an access and
benefit sharing regime per se, but through implementation of legislation and practical
measures that provide for a broader set of rights for these communities such that they can
pursue traditional lifestyles. Benefit flows may assist in the alleviation of poverty, in the
development of infrastructure, and in other ways, but it does not guarantee that a community
will be able to continue their traditional practices – it may in reality do the opposite.
Despite these complicating matters the CBD has provided the most important international
defence for developing countries seeking to protect traditional knowledge, achieve a balance
of activities between conservation and research and development, and limit the breadth of
IPRs into genetic resources. It is in achieving the balance between its sometimes disparate
objectives that the CBD has incredible strength.
In Thailand the ratification of the CBD was at first delayed due to a lack of staffing in
government authorities to implement and enforce the conservation of biodiversity, a general
lack of agreement about how biodiversity should be conserved, due to concerns about the
protection of traditional knowledge relating to biodiversity and due to implications of the
terms of protection of IPRs and access to biological resources (Compeerapaap, Jaroen, Pers.
Comm., 2005). There was considerable protest from NGOs, people’s networks and concerned
academics about how the CBD should be implemented in Thailand. Essentially they
demanded that Thailand should develop two bills on traditional medicines and plant variety
protection, as well as further development of the Community Forests Bill which had already
been drafted. Initial development of these bills included broad public consultations, but
suffered somewhat from departmental disagreements, and a change of government. The
Ministry of Science and Technology and Education put pressure on the new government to
sign and ratify the CBD, seeing the potential benefits of opening Thailand’s biological
resources up to access and benefit sharing arrangements. This set in motion a Cabinet
Committee which developed a plan to the implementation issues surrounding the CBD.
Several concerned academics and the Barr Association protested that this Cabinet solution
was in violation of a section of the Constitution at the time relating to participation. The
Constitutional Court then forced the government to come into compliance such that in April
1994, the Parliament approved Thailand as a signatory of the CBD, and finally became fully
ratified in 2004 (Compeerapaap, Jaroen, Pers. Comm., 2005). This was the start of a process
of broad public participation, NGO activities, and governmental department cooperation on
these matters. In Chapter 3, the further development of the aforementioned bills into acts will
be discussed.
The development of individual national systems of biodiversity conservation and sui generis
systems for the protection of traditional knowledge, while important, are limited in their
jurisdiction. Because these matters often involve international transactions (such as foreign
company access to biological resources) an international framework, especially in the eyes of
the developing countries, is considered essential. The Bonn Guidelines on Access to Genetic
Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilisation lay out a
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