The Convention on Biological Diversity: An Ambivalent Attempt to Reconcile Communal Rights and Private Property

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2000
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"Biodiversity became a global issue in the mid 1980s, under the pressure of converging forces: the threatening increase in species extinction, the changes in the theory as well as in the practice of nature conservation, but also the expansion of genetic engineering and the intrusion of industrial interests into areas from which they had been hitherto excluded. These elements participated in the integration of utilitarian perceptions of nature, reduced to a set of resources thanks to new technologies that enabled its extensive economic exploitation. Therefore, the Convention on Biological Diversity, adopted in 1992, stressed the notion of sustainable use of biological resources as a means to finance conservation but also to foster development in the South and to benefit pharmaceutical and agricultural industries. The property rights on resources were presented as the cornerstones of biodiversity conservation. "Prior to the enforcement of the Convention, transnational corporations had free access to indigenous resources-- including knowledge--and after screening they could patent parts of these resources, depriving their former holders of their traditional use rights. The definition of rights to bring this despoilment to an end and turn it into bioprospecting, an activity allegedly profitable to all parties, was one of the main stakes of the Convention. It has resulted in a compromise between economic efficiency as portrayed by the theory of property rights, that is the promotion of privatisation through the development of intellectual property rights on biotechnology products, equity through the recognition of the rights of indigenous peoples and communities embodying traditional lifestyles and a political concession to developing countries in securing their sovereignty on their resources. "Our purpose lies in stressing the contradictions of such an attempt, aiming at reconciling communal and private rights, maintenance of traditions and incentives to innovate, cultural differences and the homogenising forces of globalisation into a market framework. "The model favoured by the Convention is the one propounded by the Coase theorem. Once the rights are established, direct negotiations should take place between the holders and the users of genetic resources to determine the terms of exchange. The possibility for communities or indigenous peoples to define de jure communal rights on their biological and intellectual resources is a delusive counterpart to the extension of intellectual property rights. As outlined in the Convention, these rights are mostly intended to favour the alienation of indigenous resources and knowledge, not to prevent it. The endeavour to build up commons out of cultural knowledge, that is often denied the status of resource by its very holders, is controversial. Moreover, technical obstacles, the imbalance of power and legal status make it difficult for local and indigenous communities to sign contracts on their own terms with transnational corporations. "Similarly, international competition for the supply of resources and world trade regulations do not leave the governments of developing countries much room for manoeuvre in the definition of laws of access to their biological heritage so that they cannot reckon on large benefits from bioprospecting. "On the plea of defending at the same time the varied interests of the parties, the Convention on biological diversity has resulted in favouring the status quo. Bioprospecting has acquired legitimacy though its benefits are dubious. The obvious bent for private property and market regulation in the negotiations concerning biodiversity stems from the theory of property rights; the legitimacy of such application is however questionable given the context."
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IASC, common pool resources, biodiversity, conservation, resource management, institutional analysis, policy analysis, indigenous knowledge
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