Читать книгу Reclaiming the Commons - Vandana Shiva - Страница 16

In 1992 the international community adopted the CBD at Rio de Janeiro at the Earth Summit, along with the United Nations Framework Convention on Climate Change. These two international environmental agreements are the fragile threads that hold our future.

The CBD was seen as a way to reclaim lost ground on the unchecked exploitation of genetic resources in developing countries. While no mandatory obligations arise out of this legal instrument it lists three important aims:

•Conserving biological diversity

•Sustainable use of resources

•Fair and equitable sharing of benefits that arise out of commercial use

Though it is still a form of Northern ‘taking’ with which a ‘giving’ to the South is attached, its aims of justice and fairness mandate the sharing of benefits with resource providers. The CBD has carved an institutional framework for benefit sharing arrangements which have sprouted across the world through which the resource users (corporations and scientists) compensate the resource providers and stewards (indigenous peoples, communities, etc.,) through the idiom of “benefits.”

Article 8(j) reads: “Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.”

The CBD reaffirmed the recognition of “the intrinsic value of biological diversity and the ecological, genetic, social, economic, scientific, educational, cultural, recreational, and aesthetic values of biological diversity and its components.”¹

The objectives of the Convention are stated in Article 1.

Article 1 Objectives:

“The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components, and the fair, equitable sharing of the benefits arising out of the utilization of genetic resources by appropriate access to genetic resources, by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.”

The primary objective of the CBD is the conservation of biodiversity. While recognizing that conserving biodiversity is a common concern for humanity, the Convention clearly recognized the sovereign rights of states and closed the door for unregulated access, exploitation and ownership through patents by global corporations with commercial interests. It strengthened the sovereign option in the area of biodiversity and shut down the colonial choice of “free access” to our biodiversity, only to be sold back to us as patented commodities for health and agriculture.

Article 3 of the Convention states:

“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.”

The regulation on access to biodiversity flows from this principle of sovereignty.

According to Article 15(1) on 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.”

The Convention also recognized that indigenous knowledge needs to be protected in order to conserve biodiversity. Article 8(j) on in situ conservation states:

“Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity, and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.”

Finally, under Article 19(3) the CBD created an obligation for biosafety–i.e., prevention of large-scale loss of biological diversity–in the context of genetically modified organisms, or living modified organisms:

“The Parties shall consider the need for and modalities of a protocol setting out appropriate procedures, including, in particular, advance informed agreement, in the field of the safe transfer, handling and use of any living modified organism resulting from biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity.”

I was appointed to the expert group that created the framework for the protocol on Biosafety under Article 19.3 of the Convention. The Cartagena Protocol on Biosafety is the international law on the biosafety of GMOs.²

The Nagoya protocol on Access and Benefit Sharing is another protocol of the CBD. It is meant to advance the objective of the CBD which is to ensure “fair and equitable sharing of benefits arising from the utilization of genetic resources.” This was becoming especially significant in the context of the growing rush to patent and commodify biodiversity, genetic resources, and indigenous resources. At the seventh meeting of the parties of the ad hoc, open-ended Working Group on Access and Benefit-sharing there was a mandate to elaborate and negotiate an international regime on access to genetic resources and benefit-sharing in order to effectively implement Articles 15 (Access to Genetic Resources) and 8(j) (Traditional Knowledge) of the Convention and its three objectives.

Article 15 of the CBD laid out the narrative on:

•Mutually agreed terms in Article 15(4): “Access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article.”

•Prior informed consent in Article 15(5): “Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.”

•Benefit sharing in Article 15(7): “Each Contracting Party shall take legislative, administrative or policy measures, as appropriate . . . 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.”

The lineage of CBD was carried forward in the sixth Conference of Parties (COP) which led to the creation of the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization in COP 10, resulting in the Nagoya Protocol on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization.