Tony Bennett, Differing diversities - Council of Europe

Differing diversitiesThe Convention on Biological Diversity and the recognition oftraditional knowledgeStates who are party to the CBD are obliged:i. to respect, preserve and maintain knowledge, innovations and practices (KIP)of indigenous and local communities embodying traditional lifestyles relevantfor the conservation and sustainable use of biological diversity;ii. to develop and use traditional and indigenous technologies;iii. to promote the wider application of such knowledge with the approval andinvolvement of the holders of such KIP;iv. to encourage the equitable sharing of benefits arising from the use thereof;v. to ensure that their intellectual property regimes support rather than underminethese objectives. Technology transfer to less developed countries is encouragedin exchange for the provision of such knowledge. 8For some advocates, “the cumulative effect of these provisions is to make itmandatory for governments to enact a law recognising indigenous and local communityknowledge systems. In any event they are entitled to enact such a law tofulfil their obligations under the CBD.” (Nijar, 1999a). With very few exceptions, 9states that are party to the CBD have yet to introduce legislation explicitly protectingITKIP, or to consider what the interaction between a system of collectiverights and a traditional IPR regime would involve.Existing international trade and intellectual property agreements do not pose anyobstacles to undertaking such an initiative. Indeed, to the extent that Article 8 ofthe Trade Related Aspects of Intellectual Properties Agreement (hereinafterTRIPs) under the World Trade Organization (WTO) allows states to take measuresto protect public health and nutrition and to promote the public interest in sectorsof vital importance to their socio-economic and technological development, it canbe argued that measures taken for the protection of ITKIP fulfills these objectives.After all, more than 80% of the world’s peoples depend upon such knowledge fortheir health care, ongoing pharmaceutical development depends upon it, and thecontinued viability of local agricultures ensures global food security. 10The Council Parties have all signed and ratified the CBD. Most of the CouncilParties are funding research into ITKIP relevant to the maintenance of biologicaldiversity. Other Council Parties (for example, Belgium, Luxembourg, andBulgaria) have not linked their commitments to preserve biodiversity with considerationsof cultural diversity and have approached biodiversity largely as if it pertainedentirely to natural environments untouched by human interaction. 11 This,however, is rarely the case.Traditional knowledge held within the European Council Parties includes KIP inrelation to hedgerow maintenance, animal husbandry, forestry, fish-pond and bogmanagement, orchard fruit growing, herbal medicines and traditional knowledgeof phytonutrients. To a limited degree, the cultural dimensions of these practicesare recognised in domestic legislation and regional regulation. Austria has passed172