Indigenous claims to native crops and plant genebanks: a case study from Peru
Carneiro Dias, Camila
Conceição da Costa, Maria
MetadataShow full item record
The idea of benefit-sharing has, over the past fifteen years, taken hold in several prominent arenas of research and development, from pharmaceutical, oil, and mineral prospecting to human genetic research. Broadly, the idea refers to a commitment to channel some kind of returns - whether monetary or non-monetary - back to a range of designated participants: “affected” parties, source communities or source nations, participants in clinical trials, patient groups etc. Derived from stakeholder theory and post-neoliberal attempts to frame market-based activity into presumed social and environmental ends (Hayden, 2003, 2007), benefit-sharing is often framed simultaneously as: a matter of justice, as a proxy for property rights, and as a “non-market” tool for redistributing value production. The politics, ethics, and practice of benefit-sharing have been elaborated most thoroughly, though not exclusively, in the realm of biological resources. Here, the promise of equitable returns to source communities and source nations was institutionalized as a multilateral principle for the sustainable management of biodiversity in the 1992 UN Convention on Biological Diversity (CBD). In this arena, and increasingly in others1, a broad commitment to benefit-sharing is installed through a number of mechanisms: licensing agreements and royalty-sharing contracts; academic research protocols; ethical guidelines for corporation’s “good-practices”; multilateral mandates; government regulation and legislation. In 1992, in the face of considerable opposition from Northern interests, the Convention on Biological Diversity (CBD) came into force and recognized states’ sovereign rights over their natural and biological resources. Although the convention was apparently beneficial and championed by many southern activists, environmentalists and scholars, Dorsey (2000) argues that christening plants as property underneath jurisdiction of the state was a “mixed blessing”: member nations were formally given what was arguably already theirs and simultaneously obligated to erect sufficient regulatory infrastructure to protect these resources from expropriation. In 2001, almost ten years after the publication of CBD, the International Treaty on Plant Genetic Resources for Food and Agriculture (FAO International Treaty) was adopted by the FAO2, highlighting very similar principles regarding the protection of farmer's rights. The FAO International Treaty recognises past, present and future contributions of farmers in all regions of the world in conserving, improving and making available plant genetic resources for food and agriculture. Like the CBD, the FAO International Treaty does not define the concept, but states explicitly that the responsibility for implementing its provision on farmers’rights rests with national governments. Governments are free to choose the measures they consider appropriate, according to their needs and priorities, as long as specific attention is given to the protection of traditional knowledge, fair and equitable distribution of benefits derived from the use of plant genetic resources and participation in decision-making processes (Muller, 2006 ). Fifteen years of CBD-sanctioned experiments have made evident the many difficulties that the principle of benefit-sharing is likely to confront. In this domain, matters of sovereignty mix with the delicate questions not just of “how much” should be shared, but with whom, and on what basis. In fact, a number of inter-related problems and questions arise provocatively alongside the ascendant politics of benefit-sharing: what kind of entitlement is benefit-sharing and what a benefit is (technology transfer, royalty payments, infrastructure building, community development projects)? Who counts as a benefit-recipient (national biodiversity institutes, some communities and not others, developing country scientists)? What principles and mechanisms - ethics, legal rights, trade, contract - shall guarantee such redistributions and render it in practice? These are not simple questions but conceptual matters that suggest significant gaps at the interface of conventional frameworks of community, nation, market, and rights. According to Hayden (2003), one way to look for an answer to the question of what benefit-sharing is, is to think about what it is not. In this vein, she traces the relation between intellectual property rights (IPR) and benefit-sharing. For her, although the relationship between the politics of benefitsharing and intellectual property is complex and under constant re-negotiation, where biologicals resources are concerned, benefit-sharing relies on the concept of IPR but is not at all isomorphic to it. She reminds that, intellectual property itself (as patents for example) is rarely, if ever, considered part of the package of goods to be redistributed to benefit-recipients. Benefits are, in other words, posed mainly as compensation tools, but not as rights. Similarly, for De Jonge and Korthals (2006), the present benefit-sharing application as an instrument for compensation or exchange is quite narrow and has very little to do with the concepts of distributive justice or community participation. It means that most existing mechanisms of benefit-sharing are downstream focused (at the end of the research and development pipeline) and the idea of shared decision-making regarding the technological utilization of the resources is, most of the times, not part of the deal. In Peru, a series of recent laws and regulations address the protection of traditional knowledge related to biological resources. The right to participate in the fair and equitable sharing of benefits derived from access to and use of plant genetic resources has been recognized in a series of laws and regulations. Most importantly, Law 27811 for the Protection of Collective Knowledge of Indigenous People, published in 2002, is a milestone in this regard. Specific projects which involve accessing and using farmers’ seeds and genetic resources and their related traditional knowledge have also incorporated benefit sharing conditions and commitments. For all these reasons, it is certainly worthwhile to question how feasible and effective is the paradigm of “benefit-sharing” in promoting biodiversity conservation, indigenous rights recognition and community development. In other words, to investigate what does this entitlement really mean for countries, corporations and holders of biological resources and traditional knowledge worldwide: a fundamentally new way of introducing equity into the market place or just business as usual with a politically correct face (Peterson, 2001)? Through the lens of a recent benefit-sharing agreement that took place in Peru, some distinct but related questions are asked, in an attempt to enhance understanding of these complex issues. First: did this agreement actually secured fair and equitable benefits for holders of traditional knowledge, and if not, which aspects require further attention? Second, what could we possibly learn from the negotiating process to develop a benefit-sharing agreement that can usefully be applied in similar situations? The analyzed cases is the rapatriation agreement of a native potato germplasm bank negotiated in 2004 between the International Potato Center (CIP), which comes to be a member of the alliance of the 15 centers of the Consultative Group on International Agricultural Research (CGIAR), and the Quechuas Communities of the Potato Park, represented by an indigenous NGO, ANDES. Information for the case study came from both secondary and primary sources. Primary data was gathered during field research in Peru, in June, 2007. The methodological approach was mostly qualitative and included guieded visits to the International Potato Center in Lima and to the communities of the Potato Park, near Cusco, as well as in-depth interviews with key-actors from both organizations. Besides, a group of actors closely related to the general scope of benefit-sharing regulation and traditional knowledge protection in Peru was also interviewed. These included policy-makers, scholars, NGO attorneys and private sector representatives3. This paper is structured as follows: this introduction has presented the research goal and its methodological choices. Next section presents a general view of the current regulatory framework for indigenous knowledge protection and benefit-sharing related to biological resources in the international level and in Peru. Section 3 presents the case-study – the repatriation agreement between CIP and the Quechua communities from the Potato Park and discusses its main implications. Finally, last section presents some concluding remarks about the case-study.