The Convention on
Biological Diversity (CBD)
in Latin America.
Prospecting and Industrial Property.
Notes taken from a legal and economic cosmos visison.
Upon a research for the Universidad de Buenos Aires (TD30) funded by the Consejo
Nacional de Ciencia y Técnica (resolución
D N° 1854/98. PIP 0160/98
) and Pro-Diversitas
report had been read at the forum about "Liberalization of International
Trade and the Protection of the Environment in the Context of Regional Economic
Integration". Sienna, Italy April 11th & 12 th 2000
“...we can no longer walk by ourselves. We are seeking for a new
alliance with the white man. An arrow has been shot towards the white man,
an arrow made of love and solidarity, directed to reach every man’s
heart, hoping for a new time to come. A time to destroy a discrimination
wall that has separated us for centuries, thereby preventing us from
talking and listening to one another. We wish to speak like Indians, with
the voice of the Earth, the voice of the material and spiritual balance of
Man, the voice of the true Americas.”
Road to Dignity, Tierramérica,
Year 2, Issue No.6.
Brazilian Yanomami Tribal Leader
The term biological diversity has already become part of common language
spoken by politicians in many countries worldwide. It appears in diplomatic speech, as well as in hundreds of
theoretical and journalistic documents and writings. Likewise, it is
increasingly being added to ordinary vocabulary, associated with the idea of
notion and significance
Not only does biological diversity, which is the basis for human life,
imply to take ecosystems, species, and genes as a whole, but it also comprises
and includes variability within species, between species and of ecosystems, and
finally the ‘special knowledge’ that the human communities have got about it
is part of its important significance.
As Nature can be understood as a network of systems or ‘all’ living
systems intertwined into multiple hierarchical levels, extinction or loss of any
of such systems means a partial variation in the hierarchy which they include in
or form part of. Each one of such
levels is distinguished by having a structural, functional, and compositional
diversity, which becomes manifest on a simultaneous basis when we see any
individual. It is all such levels
contained in any individual which move through space and time giving rise to a
deliberate, endless burst of ‘life’ and recreative extravagance, yet
implying no loss of memory, i.e., however sophisticated or ‘crossbred’ the
form may be, memory of previous stages is never missed or, in other words, no
second of recreated time is lost, i.e., biodiversity may be viewed as a work of
art which is being painted once and again till the end of time (Ordóñez,
Extinction and species generation are two supplementary natural processes
which have been occurring contemporaneously since life appeared on earth. The
outcome of the relationship between the species generation rate and the
extinction rate is the evolution of species. Yet, even though extinction is a
natural process, today it has become an essentially antropogenic process because
of the dramatic changes that Man has imposed on Nature. It is Man who has made
such changes, who has decided on them...
At the dawning of the 21st century the scenario that is
awaiting for us, if trends continue to favour transformation and degradation,
shall be a vast territory modelled after the best uses of Man on Earth, with
some interspersed natural expressions here and there. The only natural habitats
that will survive for long will be those granted a ‘museum’ or
‘sanctuary’ status (at present, pursuant to World Resource Institute
1989 figures, nearly a total 3% of all land is highly protected worldwide). It
is considered that there may be an incidental loss of 66% of plant species in
Latin America -out of this percentage 14% will relate to world plant families.
In case of incidental extinction of Amazon birds, 26% will relate to world bird
Evolution leads to recreate living forms that are not pure
or ‘autonomous’, but increasingly mixed and inclusive of other forms then
being present. Nature is not static, nor do natural forms co-exist in isolation.
It develops in an orderly fashion, in constant evolution into new forms, where
the novelty precisely lies in a greater unity or a new combination of simple,
formerly divided forms into mixed, integrated ones which will, in turn,
incorporate other forms either creating (or becoming) new ones, or enhancing
them with elements or features already existing in their own corporeality, which
now combine into a new, ‘multiplied’ form under an individual, co-ordinated
organism (Ordóñez, 1999). Life on Earth takes many faces. Differences within
ecosystems, species, and genes took millions of years to develop. They were the
outcome of countless mutations and dramatic episodes of natural selection.
Each micro-organism, animal, and plant contains between one and ten
million bits of information in its genetic code... A diversity that is hard for
us to figure out.
Biodiversity is the key to a safe environment for human beings in the
long run. It renders Man a great
number of services, such as cleaning air, water, and earth, decomposing waste,
balancing weather, providing food, resins, medicines, building materials,
textile fibers, etc., i.e., countless raw material that provide us with food and
shelter, keep us healthy and enable us to conduct our multiple activities on
planet Earth. A great number of
species help sustain environmental conditions allowing us to live on Earth, and
ensure our resistance to harmful changes in the environment.
In addition to this, today Man ‘aggregates’ an interesting phase of
utilization: the use of active principles within the sophisticated world of
century-end technologies. In order to attain this goal, Man has been forced to
explore the steppe and the jungle, the forest and the tundra... guided by people
who have been living together and using such biodiversity on a sustainable basis
since the beginning of time, thereby showing the need to ensure maintenance and
development of indigenous knowledge.
Some research made four years ago by the World Cancer Institute has shown
the following results: in cases of random biological prospecting a promising
sample was isolated (applicable to cancer drugs)from among 10,000; whereas the
ratio was one to four in samples taken out of varieties known to local
populations and used by them since age-old times. If we take into account that
payment for each sample amounted to $35, we can understand the economic
significance of ethno-biological prospecting.
Man has rediscovered that he himself is an integral part
of that spectrum or musical score known as biodiversity. And, in such instance,
protecting it implies to respect cultural diversity, including diverse cultures,
languages, beliefs, and aesthetic expressions as a condition to maintain and
protect indigenous knowledge; to recognize indigenous peoples’ rights to their
land and natural resources as the basis for the new process of technological
Threats to biodiversity are as many as human destructive activities.
The human being, not only taken as a species in the animal kingdom, but
as cyborg (i.e., an organism able to create and relate itself through
instruments) –and, therefore, showing off his power as an orchestra conductor-
is the key responsible person for biological diversity loss, not only from the
plant, animal or microbiological side, but also from the human biodiversity
Apart from productive processes such as labor-intensive agriculture and
industrial afforestation, over-utilization of species and pollution of fresh
water, oceans, soils and atmosphere are depleting our biological heritage. Man
is annihilating Man himself, not only figuratively speaking or in the long term,
but also with his present cleansing of ethnic and cultural groups, who are
impoverished and murdered by his action. All this is the legacy of a model based
upon over-consumption of natural resources and over-use of power exceeding the
limits of sustainability in the future. The loss of countless living forms is
the price that we pay for advancing and maintaining a material wealth paradigm
which contains its own seeds of destruction.
The pace of human biodiversity impairment is alarming, even more in light
of certain proposals asserting the need to limit growth in human population.
Such reversion in the curve of demographic increase may lead to impoverished
human biodiversity: many scholars (Cavalli Sforza, 1997), stressing the need for
control over human reproduction, lay emphasis on poorer populations –a theory
which, in case of being successful, would reduce a great number of aboriginal
ethnic groups to extinction (in Latin America); all of which would mean the
effacement of their culture, knowledge, and biological diversity.
The fact is that every attempt to control ‘cyborg’ dissemination may
also result in ‘Man’ extermination.
on Biological Diversity (Rio de Janeiro, 1992)
For at least one decade, many sectors –governments, experts,
non-governmental agencies- have worked to include biodiversity as a topic of
discussion in world agendas. Their efforts were crowned with success at the
Earth’s Summit held in Rio de Janeiro, in June 1992, where 157 countries of
the world (excluding the U.S.A., for the time being) publicly vowed to defend
biodiversity by signing the so-called Convention on Biological Diversity(CBD)
The Convention rests on three main pillars: conservation of biological diversity, sustainable utilization of its components, and fair and equitable sharing of benefits arising from such
utilization. Attention is drawn to conservation of biological diversity and
sustainable use thereof, and focus is laid on issues such as the equitable
sharing of benefits arising from its exploitation and the need for transfer of
technology and financial resources from more developed countries and sectors to
less developed ones. This is a
The Convention on Biological Diversity is a reference agreement
purporting to cast some light on definitions of terms such as genetic
material (any material of plant, animal, microbial or other origin containing
functional units of heredity), genetic
resources (genetic material of actual or potential value), and biological
resources (genetic resources,
organisms or parts thereof, populations, or any other biotic component of
ecosystems with actual or potential use or value for humanity).
It also includes ‘artificial ecosystems’ (native communities) –and
their components and derivative products- as a source of biodiversity, thereby
extending the legal scope of this Convention to agricultural genetic improvement
activities –which are regulated by other international agreements and
supplementary national laws- and age-old uses of natural active principles,
known to and developed by native communities. Therefore, biodiversity is such
dynamics which cyborg also
takes part in, has an impact on, and provides enhancement to.
The subject matter of the Convention demands that
nations amend their laws, which should foster and promote a Copernican turn in
legal and economic structures if one wishes that the CBD prevail. All over the
process entailed by such change, education, governmental policies, new laws
being passed to fit in with the rights of native communities and to regulate
their personality and legal status, are other instruments the need for which
cannot be denied.
As regards appropriation or ‘access’, the
Convention requires as follows: (1) an agreement (Article 15, paragraph 4) which shall only be
executed on the genetic resources being
provided by the Contracting Party that is ‘country of origin’ (Article
15, paragraph 3); (2) prior informed
consent of the Contracting Party providing such resources (Article 15,
paragraph 5); (3) exchange of technology,
including technology protected by patents and other intellectual property rights
(Article 15, paragraph 7, and Article 16, paragraph 3; and (4) it shall be encouraged that the benefits arising from the
utilization of such knowledge, innovations and practices be shared on an
equitable basis (Article 8, paragraph j). All this may be subject to some
initial comments, namely,
“...an agreement may only be reached on
the genetic resources being provided by the Contracting Party that is ‘country
of origin’.” (Article 15, paragraph 3, CBD).
This raises two issues (Nirinberk de Chiessa, 1997). On the one hand, we
know ecosystems recognize no political frontiers and that, except for endemic
diseases, genetic resources have several countries of origin.
This principle is mainly important for Member Countries in the Amazon
Cooperation Treaty and the Amazon Parliament, since they share the most
extensive basin, having 50% of rain forests and the most remarkable biological
diversity on Earth.
The agreement between InBio (from Costa Rica) and Merck Laboratories
–regarded by many people as an adverse landmark document in this industry-
gave the latter party access to a kind of biodiversity which is not endemic but
shared among countries within a vast geographic area spanning from Chiapas
(Mexico) up to Beni (at the north of Bolivia) that, according to Joseph H.
Vogel, would violate the Convention under which said agreement was signed.
Therefore, in this regard one may think that sovereignty of Governments
should be negotiated via regional agreements if one wished to avoid unfair
competition over the development of industries closely related to biotechnology
and, as a result, one should implement joint scientific and technological
alternatives for human, economic, social, and environmental development based on
such resources. On the other hand,
on the domestic front, each country being organized on a federal or confederate
basis shall have to resolve the legitimacy issue (national, or provincial, or
state level) to procure any agreements on biological prospecting that may arise,
and to determine the required legitimacy level for cases of ethno-biological
prospecting that may involve native knowledge provided by local and indigenous
In Argentina, which ratified the Convention by Act 24375 of 1994, the
National Constitution laids down that provinces are the owners of natural
resources. Nevertheless, the recently-executed biological prospecting agreement
was signed –on the Argentine side- by the Instituto Nacional de Tecnologia
Agropecuaria (INTA) and the Universidad Nacional del Sur (both institutions
reporting to the National Government), which may be regarded as an infringement
on the jurisdiction of Provinces causing the subject agreement to become null
Likewise, notwithstanding the newly-worded paragraph 17 of Article 75 of
the Argentine Constitution, which is similar to other Latin-American
constitutional provisions, the exercise of rights to domesticated biodiversity
and/or knowledge of the properties of active principles of biological resources
by indigenous peoples runs against two stumbling blocks: (a) that such legal
standard calls for adequate regulation, and (b) that notions of ‘ownership’
are strikingly different in the two legal cultures.
The above-mentioned absence of legal regulation of the rights of
indigenous peoples and their ensuing legitimacy to ‘act’ (already
established in international legal documents such as the ILO 169 Convention) are
sometimes contested as it happened at the Fourth Conference of the Parties to
the Convention on Biological Diversity (Bratislav, 1998), where delegates from
indigenous communities were excluded due to compelling opposition by the
Brazilian representative. As a
result, the former had to organize as a Task Force and meet under Working Groups
Upon signing and ratifying the Convention on Biological Diversity,
National Governments have reasserted and sanctioned their sovereignty over
biological resources, but they have also established explicit responsibilities,
especially as regards standards of access to genetic resources and transfer
thereof, exchange of information, scientific and technical cooperation,
biotechnology management and sharing of benefits, and matched them against
national and international industrial property systems currently in force.
This may give rise to disputes owing to
teleological discrepancies between one system and the other, as well as other
macro-economic dissimilarities and their ensuing differences of ‘weight’ in
the negotiations upon which international treaties and their protocols are based
at discussion and decision-making forums such as the World Trade Organization
(WTO) and the World Intellectual Property Organization (WIPO).
Here it should be noted that the greatest
concentration of species and varieties occurs in tropical and subtropical
regions, where many centuries ago an intelligent, ‘sustainable’ use of
natural resources started for human life. It is in those regions that today
there is an expedite loss of living resources, known as ‘genetic erosion’, and
where poverty is enhanced in a vicious circle.
And it is also those regions that, despite their poverty, provide and
will continue to provide the active principles of many other products and
processes subject to appropriation by those who develop them industrially;
without there being any clear position as to the legal system which will enable
them to utilize the benefits arising from such genetic resources.
Along this line, in the U.S.A., letters patent has been granted to a new
active principle called Epibatidine.
This Epibatidine is a chemical
substance segregated by the skin of a poisonous neotropical
frog called ‘Epipedobates tricolor’
living in the rain forests of the Andean region spanning from southwestern
Ecuador to northern Peru.
This species has been used since age-old times by aborigines in Ecuador
whenever they went hunting with blowguns. It was John Daly, a scientist from the
U.S. National Health Institute, that identified the chemical structure of this
substance excreted by frogs, thanks to information on the physiological effects
of such excretions supplied by indigenous and local communities. In order to
isolate the active principle, a sample was illegally taken from 750 frogs, since
there is no evidence as to the INEFAN (Instituto Ecuatoriano Forestal y de Areas
having granted any management licence so that this frog might be utilized for
commercial purposes (Accion Ecologica, 1998). This is a basic requirement, since
this species is included in the Appendixes to the CITES (Convencion sobre el
Comercio Internacional de Especies Amenazadas de Fauna y Flora Silvestre),
which Ecuador has been a party to ever since 1975. It should also be noted that
since 1996 the INEFAN has prohibited the use of this species as a source of
genetic resources (which includes biological prospecting activities). U.S.
Letters Patent # 5468956 –granted to the U.S.A., under the agency of the
National Health Institute- is currently being utilized by Abbott Laboratories,
which are marketing ABT-594 (a product derived from epibatidine), featured as a
painkiller being 200 times more powerful than morphine.
Therefore, it is of capital importance to structure the
legal framework through which National Governments and local communities may
take part in and/or exert control over such access agreements –which shall not
be executed between countries, but between public and/or private national
institutions and large transnational corporations- on a fair basis, and ensuring
utmost safe legal protection for every party thereto. For such purpose, one must
promote standardized scientific testing to determine the class (phylum) within
which the compound substance may be found, as well as a clearing house mechanism
to determine the habitat range for such class (phylum) in order to identify the
common owners of information (Vogel, 1996).
“...prior informed consent of the
Contracting Party providing such resources” (Article 15, paragraph 5, CBD)
As per the Convention, access to genetic resources is subject to prior
informed consent of the Contracting Party providing such resources, unless
otherwise determined by that Party. In order to apply knowledge, innovations,
and practices of indigenous and local communities one must procure the consent
and participation of those who are in possession of such knowledge (Article 8,
paragraph j). Therefore, prior informed consent is the origin of sharing of
The need to procure prior informed consent gives those who have to grant
it a chance to reach ‘mutually agreed terms’. The expression ‘mutually
agreed terms’ appears in Article 15, paragraph 4; Article 16, paragraph 3; and
Article 19, paragraph 2 of the CBD. The
term ‘mutual agreement’ appears in Article 18, paragraph 5, and Article 15,
paragraph 4, with reference to those who request access to and determine the
accurate nature of the benefits to be shared.
Furthermore, consent must be granted on a prior, informed basis, only
after having clearly understood all the implications and applications inherent
to such transfer of knowledge. Therefore,
one must accept and overcome the gap between cultures, which entails an
understanding of and respect for the values currently in force among the peoples
who provide such knowledge. Overcoming
ignorance in this respect by the world scientific, commercial, and
biotechnological market will demand efforts to reconcile –and not to efface-
interests and priorities; to integrate –and not to despise- moral and legal
institutions which, despite being older than Roman-German traditions, have been
neglected for centuries.
The all-too economic vision of our law, which almost exclusively deals
with equity rights, has been surpassed within the CBD scope which grants
protection to material aspects that were ignored by many laws fashioned after 19th
century ideas, where Man was placed at the centre of the whole system. This
movement towards a new position makes the right to information an essential must, because it allows to
exercise multiple powers which are closely related to one another, to such a
degree that it is impossible to imagine any of them may be effective if the
right to information is not previously secured (Weingarten, 1996).
Let’s say that infringement of this right would imply to violate other
ideals or values that are essential to Man, mainly in the field of freedom and
dignity. The rationale is certainly the existence of a marked unbalance, with a
sci-tech predominance of the market, which becomes manifest in the legal arena
and makes information become a
transcendental instrument in order to minimize such unbalance and inequality in
contractual relationships, placing a control
tool (Weingarten, 1996) in the hands of the Contracting Party providing the
relevant resources to limit the unbalancing cultural differences.
Briefly, the CBD aims at setting codes of conduct which may eliminate old
colonial practices of blackmailing certain individuals, who appear to be
pseudo-representatives, for misappropriation of collective resources, and
preclude the CBD from becoming dead letter. The rationale of this paragraph 5 is
the basis for advocating that the obligation to share benefits shall not, in the
name of the Convention, be translated into speculation agreements the royalties
of which, if any, would largely benefit middlemen, as well as certain senior
officers and local elites. This solution shall neither allow companies
–through their intermediaries- to engage in biological prospecting based on
wholly unbalanced relationships to local communities nor discriminate sovereign
governments that shall be held liable for regulating such agreements pursuant to
the subject provision, thereby precluding that valuable collective heritage be
sold for a penny.
“...benefits arising from the
utilization of such knowledge, innovations and practices shall be shared on an
equitable basis” (Article 8, paragraph j, CBD).
In many communications received by Conferences of the Parties (Fourth
Meeting, Bratislav, 1998) from indigenous and local communities, even though
support is expressly lent to the Convention on Biological Diversity as a whole,
one may notice that, as Article 8 is subject to national laws, actual
effectiveness of the Convention ultimately depends on said legislation.
Therefore, such communities wish that a set of standards or guidelines be
formulated on national laws regarding the application of Article 8. Laws enabling indigenous and local communities to demand
their own representation at law-making bodies will give more chances to such
communities to voice their interests and concerns, as well as express their
views on issues at stake.
Anyway, there is a clash with legal diversity as regards private
ownership notions (arising from Roman-based law systems) and collective or
community ownership (typical of aboriginal peoples), which forces us to respect
a quality gap whenever we wish not to trespass or destroy local practices and
usages. Some indigenous
leaders have urged the World Intellectual Property Organization (WIPO) to do
more research in order to understand the complexity of legal notions within the
cultures of indigenous peoples. In
words of Lars Baer, a member of the Scandinavian Saami Council, “the fact that indigenous concepts, especially the notion of
collective rights, may be difficult for existing legal systems to understand
does not warrant the fact that governments and inter-governmental organizations,
such as the WIPO, may be entitled to bypass them.”
The WIPO has not gained much experience outside the field of western
intellectual property rights, and it is uncertain that it may be either willing
to undertake or able to execute such hard job.
To date, WIPO plans to hold consultative meetings with “new
beneficiaries” have focused on seven research missions due to be completed
before the end of 1999. The purpose of such missions was “to determine and
explore intellectual property needs, rights, and expectations of owners of
native knowledge and innovations, in order to promote a contribution of the
intellectual property system to the social, cultural, and economic development
of the former.”
The first difficulty with missions (and, in fact, with the entire WIPO
initiative) lies in the very purpose thereof. It is taken for granted that
providers of native knowledge do have intellectual property needs, and that
industrial rights –whether adapted or not- have something to offer for the
development of the former. There seems to be no open road to explore the whole
spectrum of incentives that are necessary to promote and protect local
innovations or to challenge the appropriateness of intellectual property rights
or their repercussions in such environment.
A second problem arises from the fact that it was also assumed that
owners of native knowledge do have expectations on western intellectual property
systems and are able to make suggestions as to how they may be improved.
Intellectual property systems are an invention contrived by industrial culture.
They are inspired in standards that are not rooted in the culture of many local
communities. WIPO research efforts aspired to seek an answer to questions such
as “How does the current intellectual
property system meet the needs and expectations of the informant with respect to
native knowledge?” or “How does the informant classify and distinguish the different
collections (corpora) of native knowledge he/she is expecting or seeking to
protect under intellectual property rights?.” This led Ethiopian scientist Tewolde Egziabher, one of the
main African negotiators within the Convention on Biological Diversity and the
U.N. Food and Agriculture Organization (FAO), to make the following comment: “Demanding
that ‘informants’ answer such questions is the same as asking ancient Greek
athletes to express their opinions on cricket rules. Such questions are simply
On the other hand, sharing of benefits cannot be reduced to mere economic
compensation for granting access to biological resources and collective
knowledge, as well as creation of monopoly rights.
All these are basic elements of inter-generation heritage. In a context
of monopoly rights, it is merely impossible to share benefits.
Imposing purely commercial interests upon the access to resources and
sharing of benefits seriously endangers the CBD promise to ensure respect for
the rights of local communities. Many people view claiming that the same
framework should serve a dual purpose –to facilitate extracting and trading of
genetic resources in favour of industry, and to promote local utilization for
sustainable development- as an untenable position, and they declare that this
stance responds to a huge pressure exerted so that the CBD would become a
supporting aid to intellectual property systems, linked to unfair international
trade relations, particularly TRIP’s by the WTO.
the CBD and TRIP’s (WTO)
The advance of globalization has turned the issue of intellectual
property rights into a major concern worldwide. Until recently, the subject of
intellectual property rights had been confined to the WIPO field. However, the
economic significance of this topic determined the inclusion thereof in the WTO
agenda arising from the last GATT Round Meeting.
The WTO Agreement on TRIP’s claims to be a top priority –on the
international front- in the discussion of such topic. At the same time,
transnational corporations have started to exert strong pressure on their
national governments so that they use the WTO as a forum to force
technologically developing countries to put TRIP’s into practice. This
pressure became manifest with the passing of new patent laws in many
Latin-American countries. Beyond such legislation, the teleology of TRIP’s and
CBD –as noted before- is fairly diverse and it may be the source of strong
Rights and Duties
National Governments have sovereign public rights to their biological
resources may be subject to private industrial property rights.
Utilization or exploitation of biological resources shall give rise to
an equitable sharing of benefits.
Letters patents should be granted in all technology fields. Rights are
exercised on a monopoly basis and there are no mechanisms to share
benefits with the countries or communities providing biological matter
or traditional knowledge.
On an equal footing, in case of use or exploitation of traditional
There are no provisions in this respect, even though one may be dealing
with industrial property rights to an invention deriving from biological
Access to bioligical resources must be tied to informed consent by the
country and the community of origin.
The future of forthcoming generations and public interests is, generally
speaking, alien to these standards.
National Governments are obliged to promote conservation and sustainable
use of biodiversity in safeguard for future generations.
One of the most controversial aspects of TRIP’s is the
fact that it requires governments to sanction that intellectual property rights
be inclusive of all technologies,
inter alia, those relating to biological matter, such as animals, plants, and
micro-organisms. The WTO urges (G.R.A.I.N., 1999) that such intellectual
property rights be ways of strong protection, such as letters patent or any sui
generis (special) “efficient” system.
If no amendments are made to national laws on issues relating to native
knowledge and community rights, this could lead companies to increase their
monopolies (Nature Magazine, April 1998), thereby reducing the CBD to dead
letter in regard to said monopolies, transfer of technology, and equitable
sharing of benefits.
Broadly speaking, the Convention may be understood
as an instrument to foster development of world emerging regions and their
participation in technological advancement.
In this respect, in addition to the above-mentioned Article 15 and
Article 8, one should bear in mind the provisions on access to and transfer of
technology (Article 16), exchange of information (Article 17), sci-tech
cooperation (Article 18), management of biotechnology and sharing of relevant
benefits (Article 19, paragraphs 1 and 2), and financial resources and financial
mechanism (Article 20 and Article 21).
Contributing to a Starting Point
The CBD goals are closely related to one another. In terms
of present-day economic theory, the current situation may be pictured as
follows: there will be no available biological resources unless they are
preserved in a suitable fashion. On
the other hand, there will be few incentives to preservation and sustainable
utilization if biological resources do not generate benefits –which cannot be
translated into economic terms- for interested parties from local communities
and the country of origin, which are the owners (or “providers”) of
biological diversity, and also major custodians thereof. Once this premise is
clearly established, the CBD calls for standards in order to regulate its most
important aspects so that it may become operative. In such case,
“access” to biodiversity shall be based on setting guidelines on the
Devising a framework for developing national policies which may ensure
promotion, recovery, sistematizing, and strengthening of indigenous knowledge
related to biodiversity, with prior
informed consent of the peoples involved in such activity;
Regulating protection and availability of biodiversity “as is”, which cannot
be dealt with by any National Government on an autonomous basis, but it should
be reached on a joint basis in an act of
extended sovereignty performed by the political units of each “region”
(this term meaning the blurred divisions imposed by Nature when it becomes
manifest and develops itself), and ensuring respect for such standards by the “international
Sanctioning the legitimate capacity to dispose of such resources and
information, which may be either public –whether national or provincial- or
private, including native communities, if appropriate, and comprising all
regions where such diversity becomes manifest, i.e., taking into account that
such legitimate power shall be exercised on
a regional basis; and, finally,
Establishing ways to exercise freedom to execute agreements on biodiversity, as
provided for in the CBD, and, if possible, to standardize them with national
laws currently effective on such issue.
As the decision to protect biological diversity is not only an ethical
but also an economic choice, most appropriate ways must be conceived so that the
trade sector may take an active part therein, and invest any monies required to
develop local scientific and economic capabilities. Therefore, the final outcome
may be a truly joint action, a social and cultural revolution overcoming the
economic and political differences which still divide human communities these
days. The Convention on Biological
Diversity has paved the way, human beings must walk along such path.
Cavalli-Sforza, Luigi L. Genes,
pueblos y lenguas. Barcelona, 1998.
Nirinberk de Chiessa, Patricia. La
administración sustentable de la biodiversidad, in Cuadernos de Bioética N°1. Buenos Aires, 1997.
Ordóñez, Alfonso M. Sinopsis.
Vogel, Joseph H. Successful use of
economic instruments to foster sustainable use of biodiversity: six case studies
of Latin America, in Biopolicy Journal,
Vol.2, Paper 5, 1997.
Weingarten, Celia. El deber de
información y el consentimiento informado (a critical vision), in Ghersi,
Carlos (coord.) Problemática Moderna.
(Chapter II). Buenos Aires. 1996.
y Cultura, GRAIN, http://www.grain.org.1998/1999
 Ecuadoran Institute for Afforestation and
 Convention on International Trade of Threatened