A BIO-CULTURAL CRITIQUE OF THE CBD AND ABS
PART I / CHAPTER 1
• We hold precious all life in its natural form. The harmonious
or outside the framework of their customary laws - in other
progress of the natural order in the environment shapes
words, each community’s endemic way of life. Specifically,
and defines healthy genetic diversity.
the knowledge, innovations and practices of ILCs have
• We oppose the patenting of all natural genetic materials.
developed out of their interactions with nature and are
We hold that life cannot be bought, owned, sold, discovered
indispensable to their ways of life. In Chapter 2, a number of
or patented, even in its smallest form.
communities speak to this issue, highlighting how important
• We denounce and identify the instruments of intellectual
their TK is to their everyday lives, such as healing community
property rights, patent law, and apparatus of informed
members and animals, knowing where to find pasture in dry
consent as tools of legalized western deception and theft.
lands and using sustainable harvesting techniques among
other means to support their ways of life. Thus TK is not an
These declarations constitute a statement of values that
end product of a traditional lifestyle, but critical to
counter the legal subject with what can be called the “bio-
communities’ day-to-day lives.
spiritual self”. The bio-spiritual self is an expression of a
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“connective imagination,” which is a way of being in the
Such a way of life is based on spiritual foundations and cultural
world that sees the self as embedded within a network of
practices that understand the self very differently from the
relationships with land, water, plants, and animals, expressed
legal subject that underlies the property rights discourse.
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The challenge then for the potential IRABS is to ensure that
The results of this intimate relationship can be understood
the effective implementation of the in situ conservation
as forming a landscape in which humans have had to adapt
objective of Article 8(j) extends beyond acknowledging
to the land, and in doing so have also adapted the land. They
intellectual property rights of ILCs over their TK and towards
emphasize that the bio-cultural foundations of their
affirming, safeguarding and promoting the foundations of
traditional knowledge cannot be seen as separate from
their bio-cultural ways of life, such as access to and
the land and animals, their culture, and spiritual beliefs,
management of their natural resources, to which TK is integral.
through culture and integrated into customary laws.
4. TK as a Commodity and its Impact on ILCs
The reduction of Article 8(j) in the current negotiations of
self is rooted in an ethical framework that is oriented less
the WGABS to a provision that grants intellectual property
towards affirming the proprietary rights of the subject over
rights to ILCs over their TK and affirms their right to trade it
the ecosystem than towards upholding a bio-cultural
in exchange for benefits is a result of conflating the legal
relationship between the bio-spiritual self and nature.
subject under Article 15 with the bio-cultural self that
Article 8(j) seeks to affirm.
Interpreting Article 8(j) as a provision that is restricted only to
affirming the intellectual property rights of ILCs over their TK
The State as the legal subject under Article 15 is typical of the
legal subject within contemporary jurisprudence as a selfenclosed bearer of proprietary rights over GR that it can use
and transfer to others. Article 8(j), on the other hand, juxtaposes
this legal subject with the bio-spiritual self that emerges from
and not as a right to a bio-cultural way of life has had the
adverse consequence of forcing ILCs to organize themselves
along the lines of a legal subject, where the community
identity is incorporated like any other corporation and their
culture is commodified as a tradable good.
a bio-cultural way of life. As illustrated above, the bio-spiritual
6 . Kakar, Sudhir, Mad and Divine: Spirit and Psyche in the Modern World, Penguin India: New Delhi, 2008, p.154.
7 . This issue is further discussed in Chapter 7 that addresses Bio-cultural Jurisprudence.
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