How much does this add up to concerning the obligations of national PGRFA programme managers? There are two answers to this question: one is legal (1) and the other is political/moral (2).
(1) The preliminary legal issue, to be considered by national genetic resources programme managers, is whether or not the country, in which programme activities are taking place, has ratified the CBD. If not, the convention does not apply, and national genetic resources programme managers do not need to follow the CBD, when taking into account their obligations towards indigenous and local communities. If the country concerned has ratified the CBD, the national genetic resource programme managers must consider a few related issues.
First, as agents or representatives of the national government, they are bound by the standards established by the CBD, even if the country concerned has not created laws to implement the CBD.
Second, if the country has implemented legislation, they should look to those laws for guidance as to how to conduct their operations. However, they may not be able to rely on the national laws. It is always possible that national legislation may not implement all the standards established by the CBD. In such cases, the national programme manager must voluntarily consider complying with higher standards of conduct than those required by national law. This will ensure compliance with the Convention. Unfortunately, for national programme managers, these are very difficult judgements to make and are complicated by the facts set out above. In particular, the CBD does not explicitly state that national implementing laws must require access-seeking parties to obtain PIC from indigenous and local communities or traditional knowledge holders. In addition, the implementing guidelines, developed by the CBD Working Group on Access and Benefit Sharing - which include this requirement - are not legally binding. Consequently, national governments have a great deal of latitude in the interpretation and implementation of the CBD.
Strictly speaking, from a legal viewpoint, and with such precedents before them, national genetic resources programme managers are unable to ascertain if they must obtain PIC from indigenous and local communities during programme activities. As stated above, it has been argued that the CBD requires the PIC of communities, but there is no universal consensus on this point.
(2) While the CBD may not include many concrete legal obligations, it has given rise to an unprecedented level of political sensitivity to genetic resources related issues. In the court of public opinion there is no defense for parties accused of taking and using genetic resources associated with indigenous communities, without their permission. Charges of biopiracy are not tempered by technical legal explanations, that the activity in question took place in a country that:
has not yet signed or ratified the CBD; or
determined that the CBD did not entail their requiring access, or seeking parties to obtain the PIC of indigenous and local communities.
As far as the general public is concerned, the CBD creates standards of conduct applicable to everyone, everywhere in the world. The reputations of programmes and institutions can be lost overnight through allegations of violating the spirit of the CBD. Complicating this situation, once again, are the vague terms of the CBD covering what can and should be done to advance its objectives. One party's interpretation of the CBD's definition of compliant behaviour may be another's definition of bio-piracy.
The term bio-piracy is often used to describe the misappropriation of knowledge and/or biological materials from traditional communities. The case presented below, on traditional medicines, is just one example of bio-piracy taking place. The commercial and research enterprises, involved in such activities, often use the term bio-prospecting for their screening activities. However, if the benefits obtained from such activities are not equally shared, with the local communities, bio-prospecting can rightly be considered to be bio-piracy.
[Box 1] USE OF LOCAL KNOWLEDGE FOR
The knowledge and use of specific plants for medicinal purposes, often referred to as traditional medicine, is an important component of local knowledge. Once, traditional medicines were a major source of materials and information for the development of new drugs. However, in the 20th-century, new sources for pharmaceuticals led to a decline in the importance of ethnobotany in drug discovery programmes. Nonetheless, new discoveries of potentially potent anti-cancer agents in plants (such as turmeric and taxol), as well as a rapidly growing herbal remedies market, has revived industry interest in traditional medicinal knowledge and practices. The rekindling of interest in traditional medicine has resulted in an alarming increase in the exploitation of indigenous knowledge of the cultivation and application of genetic resources. In this regard, world sales of herbal medicine alone were estimated at US$ 30 billion in 2000.
Source: Svarstad and Dhillion, 2000.
The short example above shows that local knowledge can be 'mined' or 'extracted' through research processes. Its 'wisdom' can then be incorporated by scientists into formal research methods and commercially oriented programmes. It is doubtful, in these cases, whether the 'owners' of the original knowledge benefit from the commercial gains made.
On the other hand, external and local actors can bring together their respective knowledge to produce an output, which is greater than the sum of its parts. The following examples from Cameroon and Kenya illustrate the positive impacts of collaborative research based on local knowledge.
[Box 2] LOCALLY AVAILABLE INDIGENOUS EDIBLE SPECIES OF PLANTS ENHANCE COMMUNITY HEALTH, PROVIDE INCOME AND CONSERVE BIODIVERSITY IN KENYA
The National Museum of Kenya is compiling a database of indigenous food plants of Kenya. This is to compile agronomic, nutritional, cultural and market data on priority species; to promote the cultivation, consumption and marketing of these foods through field demonstrations, educational materials and the media. People had abandoned their traditional foods in favour of exotic foods. This was most common among the younger generation, who took pride in their 'modern' patterns of consumption. However, despite the fact that local foods were readily available, poverty, famine and malnutrition were common in rural areas. Much local knowledge of the nutritional value and cultivation of local edible plants was in the process of being lost. Most people no longer knew, for example, when and where to collect seeds. Having never been written down, the indigenous knowledge of the elderly was slipping away day-by-day. A number of important species, or varieties of species, were on their way to extinction. Indigenous knowledge was thus the starting point. Specialists in nutrition, ecology, and botany based their research on it because there was simply not enough time, money or human resources to duplicate all that knowledge. The scientific, economic, and socio-cultural significance of the indigenous knowledge becomes apparent as specialists and practitioners work with it. The practice is beneficial in several ways. It improves the local communities' living standards and health, enhances the knowledge extension workers put into daily use, generates knowledge useful to NGOs seeking ways to alleviate poverty and improve public health. Scientific knowledge is generated that is useful for the preservation of both cultural and biological diversity. By raising the status of indigenous knowledge, in the eyes of local communities, the practice helps alleviate poverty and increases people's respect for their own culture. There are some dangers. Commercial interest may result in a selection of species and varieties and reduce the present diversity. Moreover, research may expose local knowledge to piracy.
Source: World Bank.
[Box 3] TRADITIONAL ETHNO-VETERINARY MEDICINE AND MODERN MEDICINE WORK AS PARTNERS IN CAMEROON
The modern veterinary sector is plagued by numerous constraints. This includes the erratic supply and prohibitive expense of veterinary drugs and supplies, poor communication facilities and shortage of labour. The project promoted complementary use of indigenous and conventional veterinary medicine for sustainable livestock production and the conservation of medicinal plant resources. Through interdisciplinary collaboration, with governmental and non-governmental organizations, the project documented the indigenous treatment of various diseases and livestock ailments. Diseases are now treated using effective remedies, which were used by local communities many years before the arrival of modern drugs. The practice depends on indigenous farmers' knowledge. Modern drugs complement the indigenous and are used for certain diseases, if no effective indigenous remedies are available. Farmers are now using more local remedies, which are several times cheaper than modern drugs. Low investment costs and increased livestock productivity improve farmers' profits and their nutrition. Because the practice builds on indigenous knowledge and practices, it enjoys a high rate of acceptance. There is sustainable preservation of indigenous knowledge and farmers are empowered and encouraged to participate in development. Finally, there is an increased awareness of the importance of environmental conservation.
Source: World Bank.
A popular misconception assumes that 'benefits' are purely monetary. In these cases, where the use of genetic resources is commercial, any royalties arise between ten and twenty years after the original access to genetic resources. Since the probabilities of an individual sample succeeding on the market are very small, only a tiny proportion of individual access transactions would give rise to such benefits. However, the examples above show that benefits are not necessarily monetary. The collaborative ventures in Cameroon and Kenya contribute to the empowerment of local communities, their re-evaluation of existing local knowledge and the improvement of local food security and resilience.
Politically and morally speaking, it is advisable that national genetic resources programme managers be extremely diligent in obtaining PIC from indigenous and local community representatives. This must be done before obtaining, exchanging and using genetic resources and related information associated with these communities.