ARCHIVE - Regulating Access to Genetic Resources and Associated Traditional Knowledge in the 21st Century

Graham Dutfield, professor, School of Law, University of Leeds, Great Britain

It is more than 20 years since the Convention on Biological Diversity was adopted. Since then, most international initiatives have been characterised by strategic vagueness and a lack of genuine action. This is despite the 2010 protocol of the Convention on access and benefit sharing, which although well received by those advocating fair treatment of biodiversity-holding nations and indigenous peoples, is dressed up in the usual non-committal language. Elsewhere, though, much effort has gone into the adoption of laws, rules and policies concerning genetic resources and traditional knowledge, especially in Latin America and some Asian countries. Given the failure of regulation to shift the power balance to any appreciable degree, doing nothing rather than something might appear to be the most rational course of “action”. But this is not good enough. In 1992, the global community saw biodiversity loss and the lack of incentives to conserve or use it wisely as problems requiring collective action including new legal norms. Little has been achieved during this time beyond a small number of effective but geographically limited local initiatives. The importance of these, however, should not be understated. Bio-nationalism, scientific ignorance and disrespect for indigenous peoples have proved to be major obstacles. For regulators and policymakers, the task is to balance the exercise of national sovereignty with the legal recognition of non-state property rights, consistent with human rights norms and taking into account the genuine scientific and commercial potential of physical and intangible elements of biodiversity. Few would disagree with such an aspiration in principle, but vested interests intent on frustrating workable regulatory solutions are deeply entrenched in both capitals and the international forums. Ultimately, the only solutions may have to be local.