CHAPTER 1
A Bio-cultural Critique of the CBD and ABS
Kabir Bavikatte and Harry Jonas 1
1. Introduction
Article 1 of the Convention on Biological Diversity (CBD) lists
a much more holistic vision of the protection of bio-cultural
the three objectives of the Convention as: (1) the conservation
communities’ ways of life and that the narrow conception
and (2) the sustainable use of biological diversity and (3) the
adopted by the IRABS could lead to ABS agreements further
fair and equitable sharing of benefits that arise from the
weakening communities’ cultural and spiritual foundations.
utilization of genetic resources. In 2004, the Working Group
We highlight the way the CBD has tried to curb free market
on Access and Benefit Sharing (WGABS) was tasked by the
excesses via the development of instruments such as the
Conference of Parties (COP) to the CBD to negotiate an
Bonn Guidelines to regulate users of genetic resources and
international regime on access and benefit-sharing (IRABS) to
TK, yet suggest that the Guidelines’ lack of mechanisms to
implement the provisions in Article 15 and Article 8(j) of the
empower communities to direct development relating to
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CBD and the three objectives of the Convention . The WGABS
their TK or GR jeopardizes the local integrity of the IRABS. By
is required by the COP to complete its negotiation of
this we mean that there is a danger that the international
the IRABS by 2010. The WGABS is working towards a
intention of ABS may falter at the local level, undermining it
comprehensive international framework regulating all access
as a mechanism to implement Articles 8(j) and 15. We conclude
to genetic resources and traditional knowledge, requiring the
the chapter by asking two related questions: how can
sharing of any benefits arising from the utilization of such
communities whose ways of life conserve biodiversity prepare
genetic resources (GR) and traditional knowledge (TK) with
themselves for and approach a regime that seeks to assist
those States or communities who have rights over them.
them to maintain their knowledge, innovations and practices
This chapter critiques the way in which the WGABS has focused
mainly through the commercialization of their TK; and how
on facilitating the commercial application of TK as a way of
can they also look beyond the IRABS to secure the foundations
implementing Article 8(j). We argue that Article 8(j) presents
of their bio-cultural ways of life?
1. Kabir Bavikatte and Harry Jonas are Co-Directors of Natural Justice: Lawyers for Communities and the Environment. Kabir Bavikatte is also a PhD candidate at the
Department of Private Law, University of Cape Town.
2. Article 15: Access to Genetic Resources:
• Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments
and is subject to national legislation.
• Each Contracting Party shall endeavor to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and
not to impose restrictions that run counter to the objectives of this Convention.
• For the purpose of this Convention, the genetic resources being provided by a Contracting Party, as referred to in this Article and Articles 16 and 19, are only those that
are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention.
• Access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article.
• Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.
• Each Contracting Party shall endeavor to develop and carry out scientific research based on genetic resources provided by other Contracting Parties with the full
participation of, and where possible in, such Contracting Parties.
• Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through
the financial mechanism established by Articles 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits
arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms.”
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