Trips, CBD and Traditional Medicines: Concepts and Questions. Report of an ASEAN Workshop on the TRIPS Agreement and Traditional Medicine, Jakarta, February 2001
(2001; 88 pages)
Table of Contents
View the documentEXECUTIVE SUMMARY
View the documentI. INTRODUCTION
Open this folder and view contentsII. CONTEXT
View the document3.1 The Convention on Biological Diversity
View the document3.2 The TRIPS Agreement
View the document3.3 CBD versus TRIPS
Open this folder and view contentsIV. IPR & TRADITIONAL MEDICINE: MISMATCH
Open this folder and view contentsV. CONCEPTS, OBJECTIVES AND CONFLICTS
Open this folder and view contentsVI. OPTIONS AND CHOICES
Open this folder and view contentsVII. POLICIES AND STRATEGIES
Open this folder and view contentsVIII. EXAMPLES
View the documentANNEX A - Workshop Agenda
View the documentANNEX B - Opening Remarks
View the documentANNEX C - Selected Articles of the Convention on Biological Diversity
View the documentANNEX D - List of Participants

3.1 The Convention on Biological Diversity

The Convention on Biological Diversity (CBD) was signed by 150 States during the Rio "Earth Summit" in June 1992, and entered into force on 29 December 1993. It has created a new environment for the protection of biodiversity and indigenous knowledge and for benefit sharing. The CBD differs substantially from other treaties in that it takes a comprehensive, rather than a sectoral approach to the conservation and sustainable use of biological resources. It also goes beyond conservation as such, and addresses issues like bearing the burden and sharing the benefits fairly and equitably between countries which supply and countries which use biological resources on the one hand, and between indigenous and local communities and users in the modern sector on the other.

Central to the Convention is Article 3, which recognizes that States have the sovereign right to exploit their biological and genetic resources. This is a departure from the previous notion of these resources as a "common heritage of mankind", which allowed anybody to exploit them. Moreover, in its Article 8(j), the CBD explicitly recognizes indigenous and local communities' contribution to biodiversity conservation, calls for respect and support for their knowledge, innovations and practices, and confirms indigenous people's rights over the knowledge they hold9. The Article also calls for equitable benefit sharing.

9 With regard to establishing indigenous people's rights over their knowledge, the wording of CBD Article 8(j) is somewhat vague; this principle was however clarified during the Fifth Meeting of the Conference of Parties.

Some other important points are:

• The CBD focuses not just on species diversity, but on three levels: genes, species and ecosystems. Moreover, the Convention aims to address the causes rather than the effects of threats to biodiversity.

• The CBD considers conservation and sustainable use to be inseparable. It takes into account the basic importance of biological resources in the lives of many people, particularly in countries of the South. This reflects modern conservation theories, which acknowledge the critical role played by communities in biodiversity conservation. It also recognizes that certain species, ecosystems and landscapes have developed essential characteristics because of the intervention of local communities.

• Many CBD provisions are very broad and general; they need qualifying and focusing in order to make them relevant for application within the national context, and to enable implementation. Thus, the emphasis is on national action.

The Convention is a framework agreement; it outlines goals and policies to be pursued by countries through their own national policies and legislation. Via their legislation, countries are expected to operationalize the general CBD principles regarding conservation and use of genetic and biological resources. Furthermore, they ought to define and regulate the modalities and conditions for access to those resources. The latter is particularly important, since access to biological and genetic resources and to the associated knowledge has acquired new dimensions with the development of genetic engineering (or biotechnology) and with the increasing -and sometimes indiscriminate- application of intellectual property rights, which has the potential to upset existing norms and practices.

But while the CBD recognizes States' sovereign rights over their biological resources and asserts the right of local communities to protect their traditional knowledge, it does not set or enforce minimum standards for such protection; it merely allows countries to establish their own legislation in this regard. Thus far, it seems that only a few countries have realized the importance of traditional knowledge and have enacted legislation in order to protect it. Equally, most countries have not yet enacted legislation to regulate access to their biological and genetic resources.

Finally, the main principles of the CBD of immediate interest in the context of traditional medicine are:

• State sovereignty over genetic and biological resources;

• Access to and use of genetic and biological resources and associated knowledge should be based on mutually agreed terms and be subject to prior informed consent of both the State and the providers of the resources/the holders of the knowledge;

• Fair and equitable sharing, on mutually agreed terms, of the benefits arising from the use of genetic resources and associated knowledge.

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