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Agrobiotechnology, Indigenous Peoples' Rights and Traditional Knowledge

Document Cited authorities 2 Cited in Related
Vincent
Published date01 June 2012
Pages318-332
Date01 June 2012
AuthorSolomon E. Salako
DOI10.3366/ajicl.2012.0036
INTRODUCTION

The problems facing humankind are scarce resources, environmental contamination, world hunger and the eradication of diseases. Agrobiotechnology1

‘Agrobiotechnology’ is defined as ‘the application of new and promising scientific processes and techniques in the field of biotechnology to crop germplasm and the novel use of plants, animals and microorganisms for the improvement of crops and livestock in terms of yield and quality.’ (see Mary E. Foster, ‘Agricultural Biotechnology, Food Security and Human Rights’, in Francesco Francioni and Tullio Scovazzi (eds), Biotechnology and International Law, Hart Publishing (2006), p. 259.

could solve these problems by genetically engineering transgenic fish to replenish the depletion of the world's fisheries, and by rearing pharm animals to make promising drugs such as ATryn, a human antithrombin, to treat hereditary antithrombin deficiency – a condition that makes patients vulnerable to deep-vein thrombosis. The feeding of the world population, estimated to be a little over 9 billion by 2050,2

United Nations Population Fund, The State of the World (2009), p. 25.

 could be achieved by genetically engineered crops which ripen faster, mature quickly and last longer than conventional crops. Hybridisation introduced a plant breeding technique that was capable of providing more productive varieties but eliminating the possibility of saving or replanting the seeds

With hybridisation came the commodification of germplasm: the germplasm which contains information from developing countries. This information – which is sometimes the result of millennia of breeding and improvement by indigenous peoples based on traditional knowledge – became the property of transnational seed, agrochemical and pharmaceutical corporations, notable among which are Hoechst Schering AgrEvo GmbH (or AgrEvo), Agrigenetics, Cargill Seed, Dupont, Monsanto, Novartis, Pfizer, Pioneer Hi-Bred, Syngenta and Zeneca. In return for the high cost of research in isolating and exploiting specific genetic characteristics in order to produce stronger pest- and disease-free crops, these corporations perceive the acquisition of intellectual property rights in plant and genetic resources and transgenic or pharm animals as the only way to recoup the vast amount of money spent on research and development. The problem, however, is that agrobiotechnology and intellectual property rights undermine the rights of indigenous peoples to their territories, resources, traditional knowledge and culture. For indigenous peoples biodiversity – the maintenance of essential ecological processes and life-support systems, the preservation of genetic diversity and the sustainable use of species and ecosystems3

See Catherine Redgewell, ‘Biotechnology, Biodiversity and Sustainable Development: Conflict or Congruence?’, in Francioni and Scovazzi, supra note 1, p. 63.

 – and traditional knowledge are inextricably intertwined with culture and territoriality. But there are also portents which we overlook at our own peril. These include the extinction of plant species by the introduction of hybrid varieties and thus the reduction of biodiversity worldwide; the unknown extent of the devastating effect of the release of transgenic species on wildlife and ecosystems;4

For example, a study indicated that the pollen from Bacillus thuringiensis (Bt) corn is a potential threat to monarch butterflies. See ‘Commission to Halt Approval Process for Bt Maize Seed in the Light of New Study’, 22 International Environmental Report (BNA) (1999): 436.

 and the well-documented effects of using transgenic animals for transplantation5

The use of organs of transgenic pigs could lead to the transmission of porcine endogenous retroviruses or PERVS to humans. See Mae-Wan Ho, Genetic Engineering – Dream or Nightmare? The Brave New World of Bad Science and Big Business, Gateway Books (1988), p. 182; Ian Wilmut and Roger Highfield, After Dolly: The Uses and Misuses of Human Cloning, Little, Brown (2006), p. 146.

 or as additives in feeding stuff as a growth promoter6

See Pfizer Animal Health SA v Council of Europe, Case T-13/99, Judgment of the Court of First Instance (Third Chamber) of 11 September 2002, available at http://eur-lex.europa.eu/LexUriServe (accessed 7 December 2010). In this case, the European Court of Justice held that the Commission institutions were right under the precautionary principle to ban virginiamycin, an antibiotic belonging to streptogramin class manufactured by Pfizer and used as an additive in feeding stuff exclusively as a growth promoter for animals for 30 years, because of the possible (or probable) transfer of resistance to antibiotics from animals to humans.

 for animals

In this article, the themes to be discussed are as follows:

The jurisgenerative nature of agrobiotechnology and international law.

The rights of indigenous peoples to their territories, resources, traditional knowledge and culture.

An appraisal of traditional knowledge and Western epistemology.

The haphazard protection of traditional knowledge of indigenous peoples by a conflicting network of intellectual property laws, treaties, customary laws and legal principles, and the next step forward.

 THE JURISGENERATIVE NATURE OF AGROBIOTECHNOLOGY AND INTERNATIONAL LAW

The law regulating the embryonic regime of agrobiotechnology and biodiversity is not governed solely by treaties but driven in some respects by the self-interest of states; and in other respects through the social interaction of states and non-state actors such as international organisations, transnational corporations, nongovernmental organisations (NGOs), indigenous peoples and others. Other jurisgenerative laws are international trade law and international environmental law. According to Murphy, the laws are jurisgenerative because they emerge ‘from a complex system of creation, clarification and interpretation’.7

Sean D. Murphy, ‘Biotechnology and International Law’, 42 Harvard International Law Journal (2001): 47–139, at 97.

In short, the jurisgenerative laws develop through an essential cultural medium.8

See Robert M. Cover, ‘The Supreme Court 1982 Term – Foreword: Names and Narrative’, 97 Harvard Law Review (1987): 4–68, at 11 where the author opined that ‘“jurisgenesis” is the creation of legal meaning [which] takes place always through an essential cultural medium.’

International law theorists and international relations theorists have posited various theories about how international law is generated from the self-interests of states. For the hardened realists, the self-interest of states provides the impetus for the creation of international law.9

See Georg Schwarzenberger, Law and Politics: A Study of World Politics, 3rd edn, Stevens (1964), p. 14; Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy, Princeton University Press (2005), p. x.

This theory applies to the field of transnational agrobiotechnology: why the United States refused to join the Convention for Biological Diversity (CBD) and the Biosafety Protocol and why developed states refused to include intensive and costly obligations to conserve in the CBD. The realist theory does not cover the whole regime of agrobiotechnology and biodiversity: it ignores the long-term interests of states in the stability and efficiency of the system in which they operate and the fact that the bindingness of international law is a manifestation of the interests of states in developing the means for cooperation of states in the long term. According to Goldsmith and Posner, four things might explain the state behaviours associated with international law: (1) coincidence of interest, (2) coordination, (3) cooperation, and (4) coercion.10

Jack L. Goldsmith and Erica A. Posner, The Limits of International Law, Oxford University Press (2005), pp. 10–12.

 The creation of the World Trade Organization (WTO) and its system of dispute settlement, Keohane asserts, is a clear example of how states could cooperate in the absence of a centralised law maker or law enforcer.11

See Anne-Marie Slaughter, Andrew S. Tulumello and Stepan Wood, ‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’, 92 American Journal of International Law (1998): 367–97; Keohane, supra note 9, p. xi.

 For Hart, the principal function of law is social control: to guide and to plan life out of court.12

H. L. A. Hart, The Concept of Law, 2nd edn, ed. P. A. Bullock and J. Raz, Clarendon Press (1994), p. 39.

 Surprisingly, Hart did not apply this important insight to international law. But the cooperation of states alone does not explain the whole corpus of international law or its enforcement. We must also consider the non-state actors, namely transnational corporations, international organisations and NGOs – and the protection of traditional knowledge before and after the promulgation of the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) FAO, CBD AND TRIPS: PROTECTION OF TRADITIONAL KNOWLEDGE OF INDIGENOUS PEOPLES

Prior to the promulgation of UNDRIP, the protection of traditional knowledge of indigenous peoples was haphazard. The idea of coordinating the management of plant genetic resources for agriculture (PGRFA) was mooted by the United Nations Food and Agricultural Organization (FAO) at the twenty-second session of its conference in 1983 and the International Undertaking on Plant Genetic Resources (IUPGR) was created by Conference Resolution 8/83. The three main objectives of the IUPGR, a non-binding international instrument, are: (1) the preservation of PGRFA as heritage of humankind – ‘to be explored, preserved, evaluated and made available for plant breeding purposes … without restriction’;13

IUPGR, Article 1.

(2) the conservation of PGRFA in situ and ex situ;14

Ibid., Article 4.

 and (3) the exhortation of governments’ adherence to the paradigm of...

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