Who Benefits? Policies of Inclusion and Exclusion in International Pharmaceutical Bioprospecting Contracts

Permanent Link:

Material Information

Title: Who Benefits? Policies of Inclusion and Exclusion in International Pharmaceutical Bioprospecting Contracts
Physical Description: Book
Language: English
Creator: Scussel, Katherine
Publisher: New College of Florida
Place of Publication: Sarasota, Fla.
Creation Date: 2012
Publication Date: 2012


Subjects / Keywords: Bioprospecting
Intellectual Property Rights
Genre: bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation


Abstract: Bioprospecting is the transfer of plants, animals, and microbes and traditional knowledge about these organisms from biodiversity-rich nations to developed nations in exchange for compensation in the form of contracts promising benefits sharing, intellectual property rights, or development projects. This process, meant to transform what has historically been a one-way extraction of resources into a multidirectional flow of benefits, has been posited as a way to give local or indigenous peoples living in biologically-diverse regions compensation for the conservation of their resources. However, this market-mediated strategy, promising methods of participation and inclusion, inevitably sets up relationships of exclusion and exploitation as it relies on vague definitions of what knowledge and which communities should receive benefits and to what ends. This thesis explores the process of bioprospecting with an emphasis on the ways bioprospecting projects define "knowledge" and "community," focusing on two case studies of the International Co-operative Biodiversity Groups program in Mexico and Peru.
Statement of Responsibility: by Katherine Scussel
Thesis: Thesis (B.A.) -- New College of Florida, 2012
Bibliography: Includes bibliographical references.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The New College of Florida, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Local: Faculty Sponsor: Dean, Erin

Record Information

Source Institution: New College of Florida
Holding Location: New College of Florida
Rights Management: Applicable rights reserved.
Classification: local - S.T. 2012 S4
System ID: NCFE004668:00001

Permanent Link:

Material Information

Title: Who Benefits? Policies of Inclusion and Exclusion in International Pharmaceutical Bioprospecting Contracts
Physical Description: Book
Language: English
Creator: Scussel, Katherine
Publisher: New College of Florida
Place of Publication: Sarasota, Fla.
Creation Date: 2012
Publication Date: 2012


Subjects / Keywords: Bioprospecting
Intellectual Property Rights
Genre: bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation


Abstract: Bioprospecting is the transfer of plants, animals, and microbes and traditional knowledge about these organisms from biodiversity-rich nations to developed nations in exchange for compensation in the form of contracts promising benefits sharing, intellectual property rights, or development projects. This process, meant to transform what has historically been a one-way extraction of resources into a multidirectional flow of benefits, has been posited as a way to give local or indigenous peoples living in biologically-diverse regions compensation for the conservation of their resources. However, this market-mediated strategy, promising methods of participation and inclusion, inevitably sets up relationships of exclusion and exploitation as it relies on vague definitions of what knowledge and which communities should receive benefits and to what ends. This thesis explores the process of bioprospecting with an emphasis on the ways bioprospecting projects define "knowledge" and "community," focusing on two case studies of the International Co-operative Biodiversity Groups program in Mexico and Peru.
Statement of Responsibility: by Katherine Scussel
Thesis: Thesis (B.A.) -- New College of Florida, 2012
Bibliography: Includes bibliographical references.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The New College of Florida, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Local: Faculty Sponsor: Dean, Erin

Record Information

Source Institution: New College of Florida
Holding Location: New College of Florida
Rights Management: Applicable rights reserved.
Classification: local - S.T. 2012 S4
System ID: NCFE004668:00001

This item is only available as the following downloads:

Full Text


WHO BENEFITS? POLICIES OF INCLUSION AND EXCLUSION IN INTERNATIONAL PHARMACEUTICAL BIOPROSPECTING CONTRACTS BY KATHERINE SCUSSEL A Thesis Submitted to the Division of Social Sciences New College of Florida in partial fulfillment of the requirements for the degree Bachelor of Arts Under the sponsorship of Dr. Erin Dean Sarasota, Florida May, 2012


Table of Contents ACKNOWLEDGEMENTS......................................................................................iii LIST OF FIGURES................................................................................................iv ACRONYMS USED...............................................................................................v INTRODUCTION...................................................................................................1 CHAPTER ONE: The Politics of Benefits Sharing.............................................................................7 CHAPTER TWO: Communities and Collection Sites.......................................................................27 CHAPTER THREE: Indigenous Identity and Intellectual Property Rights............................................46 CONCLUSION.....................................................................................................64 BIBLIOGRAPHY...................................................................................................70 ii


ACKNOWLEDGEMENTS First and foremost, I would like to thank my parents, David Scussel and Jeanne Trudeau, for instilling in me the value of education while also encouraging me to be self-directed enough to make my own decisions about my educational path. I couldn't ask for better parents. I would also like to thank my big sister, Beth Scussel, for being the best hand-holder for all these years. I owe tremendous gratitude to my wonderful advisor and thesis sponsor, Erin Dean, who has been consistently supportive and has made my thesis year as stress-free as possible. I am also very grateful for Molly Barnes, whose presence in my life sparked my love of learning at an early age. Endless thanks to David Baker for inexhaustible patience, support, and kindness, to Alex Fixler and Maddy Ringold-Brown for being around for so many years of schooling with me and for our undying love and friendship, and to Sophia Zimmerman for being the best traveling partner and friend and for that time you came over and helped me search my entire house when I lost that very crucial thesis book. And of course, thank you to my puppy Finn for making me get out of bed early so many mornings this semester when I didn't want to and for being the most enthusiastic distraction. iii


List of Figures Figure 1: Structure of the Mexico Portion of the ICBG-Latin America Agreement..............30 Figure 2: Structure of the First ICBG-Peru Agreement.......................................................52 Figure 3: Structure of the Second ICBG-Peru Agreement....................................... ..........58 iv


Acronyms Used CBD Convention on Biodiversity CGIAR Consultative Group on International Agricultural Research CONAP Confederaci — n de Nacionalidades Amaz — nicas del Per œ FAD Federaci —n Aguaruna del R ’ o Domingusa (Peru) FAO Food and Agriculture Organization of the United Nations FECONARIN F ederaci — n de Communidades Nativas Aguarunas del R ’ o Nieva FECONARSA Federaci — n de Comunidades Nativas del Ri — Santiago ICBG International Co-operative Biodiversity Groups Program INBio Instituto Nacional de Biodiversidad (Costa Rica) NGO Non-governmental Organization NIH National Institutes of Health NSF National Science Foundation OAAM Organizaci— n Aguaruna del Alto Mayo (Peru) OCCAAM Organization Central de Comunidades Aguarunas del Alto Maranon ODECOFROC Org anizaci— n de Desarrollo de las Comunidades Fronterizas del Cenepa OECD Organization for Economic Co-operation and Development RAFI Rural Advancement Foundation International SPDA Sociedad Peruana de Derecho Ambiental (Peru) UN United Nations UNAM National Autonomous University of Mexico UPCH Universidad Peruana Cayetano Heredia USAID United States Agency for International Development USM Museo de Historia Natural de la Universidad Nacional Mayor de San Marcos WIPO World Intellectual Property Organization v


WHO BENEFITS? POLICIES OF INCLUSION AND EXCLUSION IN INTERNATIONAL PHARMACEUTICAL BIOPROSPECTING CONTRACTS Katherine Scussel New College of Florida, 2012 ABSTRACT Bioprospecting is the transfer of plants, animals, and microbes and traditional knowledge about these organisms from biodiversity-rich nations to developed nations in exchange for compensation in the form of contracts promising benefits sharing, intellectual property rights, or development projects. This process, meant to transform what has historically been a one-way extraction of resources into a multidirectional flow of benefits, has been posited as a way to give local or indigenous peoples living in biologically-diverse regions compensation for the conservation of their resources. However, this marketmediated strategy, promising methods of participation and inclusion, inevitably sets up relationships of exclusion and exploitation as it relies on vague definitions of what knowledge and which communities should receive benefits and to what ends. This thesis explores the process of bioprospecting with an emphasis on the ways bioprospecting projects define "knowledge" and "community," focusing on two case studies of the International Co-operative Biodiversity Groups program in Mexico and Peru. Dr. Erin Dean Division of Social Science vi


Introduction This thesis examines the controversial process of bioprospecting, the transfer of plants, animals, and microbes and traditional knowledge about these organisms from developing, biodiversity-rich nations to developed nations in exchange for compensation. Compensation in these instances may take the form of contracts promising benefits sharing, intellectual property rights, or development assistance. This process, offered up as a way to mitigate one particular channel of resource extraction from developing to developed countries, arose out of a combination of changing discourses in the 1980s and early 1990s, including indigenous rights movements, rising emphasis on sustainable development as the dominant development paradigm, and a growing interest in the possible economic incentives of conserving biodiversity. Many point to the 1992 Convention on Biological Diversity (CBD) as amongst the most influential documents in rewriting protocols concerning biotechnological research. The CBD, which came into force in 1993 after the UN Conference on Environment and Development in Rio de Janeiro, determined that genetic resources should no longer be considered part of the global commons. Instead, nations and communities may lay claims to their biological resources. It mandated that pharmaceutical and agrochemical firms that collect genetic resources from Southern nations must share economic benefits with their source nations and communities in order to continue collecting. In response to this treaty, many signatory developing nations in turn created their own national laws 1


regarding protection of their genetic resources. It is important to note, however, that as much as this treaty is posited as a call to social justice and a more equitable sharing of the economic gains of biotechnology, it is also, perhaps more importantly, a call to a strictly market-oriented approach to conservation by which biodiversity itself is given market value. Bioprospecting contracts arising from the CBD's solutions to benefit redistribution are not so much avenues for social justice as much as they are incentive structures by which developing nations, local communities, and pharmaceutical and agrochemical industries become mutually dependent investors. Many of bioprospecting's most high profile projects, including Costa Rica's famous INBio program, are sponsored by the International Cooperative Biodiversity Group (ICBG). The ICBG program arose out of a 1991 workshop sponsored by the National Institutes of Health (NIH), the National Science Foundation (NSF), and the United States Agency for International Development (USAID). This program operates on the stated belief that, discovery and development of pharmaceutical and other useful agents from natural products can, under appropriate circumstances, promote scientific capacity development and economic incentives to conserve the biological resources from which these products are derived. (ICBG 2011) The ICBG is a public grants program offering funding to bioprospecting projects. ICBG grants are based on a collaborative funding, research, and mutual benefits relationship between United States and developing country institutions, commercial partners, and, in a few cases, specific indigenous or local communities. There are currently eight projects receiving awards of 2


approximately $600,000 per year, working in nine countries in Latin America, Africa, Southeast and Central Asia, and the Pacific Islands, with the goal of "building research capacity in more than 20 different institutions and training hundreds of individuals" (ICBG 2011). In this thesis, I chose to focus on the ICBG groups not only because of their well-publicized ties with the NIH, the NSF, and USAID, but also because of their commitment to collaborative research, their ambitious efforts to provide training and infrastructure support to host country institutions, and their supposed interest in developing drugs for diseases of concern to both the developed and the developing world. I also choose to focus on the ICBG groups because of their particularly strong emphasis on including "local communities" that has, in multiple agreements, lead to difficulty in identifying which communities should be the recipients of benefits and who is and isn't incorporated. As an environmental studies student oriented in the social sciences, my education at New College has taught me that political and economic power always intersects with environmental issues, privileging whose voices are heard and whose rights are respected. As a student with a particular interest in development and critiquing the dominant paradigm of sustainable development, bioprospecting to me seemed like the perfect example of the assumptions of international political bodies that the value of nature can be quantified and that this value can be universally imposed. 3


The summer before I began my thesis research, I completed an internship with the botany department of the Smithsonian Institution. My job was in the National Herbarium, which is housed in the National Museum of Natural History. Holding over 4.5 million specimen, the herbarium functions as a kind of plant library, loaning out botanical vouchers to research institutions all over the world. My supervisor worked in collections management, handling all of the incoming herbarium acquisitions. Once, in a conversation about my thesis topic and the CBD's mandate for sovereign control over genetic resources more broadly, he explained to me, Well, it certainly makes my job much harder. Everything is supposed to have a paper trail. Most of my job is just sifting through collection permits. I have to make sure everything was done legally in the country of origin before we can even consider a specimen for our collection and every country has different laws. When I asked him whether he thought the CBD had any implications for redistributive justice, he responded discouragingly, "to me, it's kind of like closing the barn door after the horse has bolted." This thesis will explore some of the issues that make equity so challenging and complex. Chapter one of this thesis is an examination of the politics of this contested topic of "benefits sharing" promised by the CBD. In this chapter, I begin by contextualizing benefits sharing within a broader paradigm of sustainable development. I discuss both what I see to be the major criticisms of benefits sharing as a development strategy and what its proponents argue are its 4


justifications. Finally, I evaluate the benefits sharing policies of the International Cooperative Biodiversity Groups program based on these criticisms and justifications. In chapter two, I focus in on the particular ways the CBD, and the ICBG bioprospecting projects that it sanctions, recast biodiversity as a commodity that comes necessarily bound up with a community of stakeholders and stewards. I use a case study of an ICBG project negotiated between the University of Arizona and Mexico's National Autonomous University (UNAM) to show how the ICBG uses unexpected collection strategies to pick and choose who fits the definition of "community" and who should be rewarded. In chapter three, I explore the role of intellectual property and its alternatives in bioprospecting contracts. The application of intellectual property rights to traditional knowledge and other forms of cultural resources has been widely criticized as an imposition of distinctly Western ideas of ownership derived from market-oriented societies. Anthropologist Michael F. Brown (2004) suggests that perhaps as a response to these critiques of intellectual property, the ICBG has, for the most part, strategically avoided including property claims in its repertoire of benefits offered to source nations In this chapter, I use the ICBGPeru project, the first of its kind to include a know-how license in its agreement, to show how bioprospecting contracts can exclude members from property claims. In my critique of bioprospecting, my intention is not simply to relegate it to 5


the realm of its predecessor, "biopiracy." What I offer instead is a more nuanced idea of what bioprospecting has been and could potentially turn into in the future. Ultimately my aim is an inclusive depiction of the many interests at stake. 6


Chapter One: The Politics of Benefits Sharing Contractual benefits sharing is like waking up in the middle of the night to find your house being robbed. On the way out the door, the thieves tell you not to worry because they promise to give you a share of whatever profit they make selling what used to belong to you. Alejandro Argumedo, Quechua activist (Coalition Against Biopiracy website). This chapter is an examination of the politics of the contested topic of "benefits sharing" promised by the 1992 Convention on Biodiversity. benefits sharing is a concept in international policy that originated in the 1970s with the goal of redistributing the benefits accrued from certain resources (De Jonge et al. 2009). The sharing of benefits derived from genetic resources first became a subject of international law in 1992 under the Convention on Biodiversity (CBD). The CBD mandated for the first time that countries should have sovereign control over their genetic resources. In response to this treaty, many signatory nations in turn created their own national laws regarding access and protection of their genetic resources (Brown 2004). In this chapter, I begin by contextualizing benefits sharing within a broader paradigm of sustainable development. I discuss both what I see to be the major criticisms of benefits sharing as a development strategy and what its proponents argue are its justifications. Finally, I evaluate the benefits sharing policies of the International Cooperative Biodiversity Groups program based on these criticisms and justifications. In order to begin a discussion on benefits sharing, it is necessary to start 7


with a definition of genetic resources and a discussion of the treatment of genetic resources in the CBD. Article 2 of the CBD defines genetic resources as genetic material of actual or potential value" (UN 1992). Genetic material is defined as "any material of plant, animal, microbial or other origin containing functional units of heredity." The CBD mandates that parties to the treaty develop strategies for the sustainable use of their biological resources, or in other words create economic incentives for their conservation. Article 15 of the treaty provides provisions for access to genetic resources. It states that: Each Contracting Party shall endeavour to develop and carry out scientific research based on genetic resources provided by other Contracting Parties with the full participation of, and where possible in, such Contracting Parties. Each Contracting Party shall take legislative, administrative or policy measures, as appropriateand where necessary, through the financial mechanism established by Articles 20 and 21 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. Such sharing shall be upon mutually agreed terms. (UN 1992) Although granted national sovereignty over their genetic resources, parties to the treaty are obligated to participate in biotechnology as a means of attaining funds for their conservation efforts. It is also worth noting how the wording of this section portrays technologically-wealthy countries as subjects and source countries as objects. The CBD i s an i ntegral co mpon ent o f wh at McAf ee cal ls green developmentalism," whic h she de f in es as the mutually constituted complex of institutions, discour ses, and pract ices" (1999: 135) under whi ch nature is constructed as a world currency and ecosystems are receded as wareh ouse s of 8


genetic r esources for biotechnology industries" (134). Gree n devel opmentalism, similar to the popular definition of sustai nab le deve lopme nt,' aims to curb environmental degradation by regu lati n g the efficient use of natural c a pita l without dimi nishi ng economic grow t h It does so by privatizi ng nature and assigning it monetary value. This econom ic paradigm creat es markets in nature where they previ ousl y have not existed, deman din g measures that quan tify the economic value of biol ogical r esources and generating new, increa sing needs for property rights sys tems. Its advocates c lai m that th ose living in economically poor but biodiversity-ri ch regio ns seek to gain from th is sys tem as the market is "seen to possess th e capacity to divert the benefits of devel opme nt to especi ally needy or worthy const itu enci es within the developing world (such as those groups who are actively conserving biodiversity)" (Castree 2003: 42). A poli ticaleconomic climate c ond ucive to econo mic grow th will generate market incentives that provok e advancements in gree n tec hno l ogy. Major actors advo cat ing this a p p r o a c h i n c l u d e o r g a n i z a t i o n s s u c h a s t h e W o r l d B a n k E n v i r o n m e n t Department, th e World Intellectual Pr ope rty Organization (WIPO), and the Organization for Economic Co-o pera ti on and Devel o pme nt ( OECD), as well as various corporate lobbying bodies. According to McAfee, there are three forms of power at play here economic power, institutional power, and discursive powerthat fuel green developmentalism as the dominant political-economic paradigm (1999). These three types of power refer specifically to the economic power of wealthy capitalist 9


nations and transnational corporations, the institutional power of the World Bank and other multilateral institutions, and the discursive power of the environmentaleconomic paradigm. This discursive power incorporates what Escobar has described as the "postmodern form of ecological capital" (1996). This form of capital, relies not only on the symbolic conquest of nature (in terms of biodiversity reserves') and local communities (as stewards' of nature); it also requires the semiotic conquest of local knowledges, to the extent that saving nature' demands the valuation of local knowledges of sustaining nature. (Escobar 1996: 334) Local or indigenous knowledge in this context is construed (mistakenly) as something individuals possess about elements in nature, which is supposedly able to be translated into terms of Western science. Further, Nature and local people themselves are seen as the source and creators of valuenot merely as labour or raw material. The discourse of biodiversity in particular achieves this effect. Species of microorganisms, flora and fauna are valuable not so much as resources,' but as reservoirs of valuethis value residing in their very genesthat scientific research, along with biotechnology, can release for capital and communities. (Escobar 1996: 335) The discursive power of this environmental-economic paradigm and its postmodern form of ecological capital' are reinforced by the institutional power of institutions like the World Bank and its economic power as a source of loans in the developing world, as well as the economic power of wealthy capitalist nations and private transnational firms and financiers (McAfee 1999). The logic of green developmentalism, specifically the assumption that assigning natural resources monetary value is the best way to conserve them 10


and reward those who do, is inherently biased to begin with. Reducing the value of biodiversity to its monetary significance in an international market "justifies the claims of those with the greatest purchasing power worldwide to the greatest share of the earth's biomass and all that it contains" (McAfee 1999: 138). Bioprospecting agreements, it has been argued, epitomize the approach advocated by green developmentism's proponents and give us "a blueprint for implementing the CBD's mandates" (Brush 1999, in Castree 2003: 36). Castree argues that it is bioprospectingrather than some other form of market-mediated conservation and development strategy, such as ecotourismthat fulfills this role for two reasons. First, bioprospecting's proponents see an extremely large market for biotechnological products (estimated around $500-$800 billion), which is vastly larger than the potential markets for ecotourism or other comparable strategies. Second, bioprospecting agreements have the distinct potential to provide source countries with non-monetary forms of compensation. The production of biotechnological products requires intensive research. The more analysis is conducted on a sample before it is sold, the higher the source country can charge for it. This analysis is usually done by an intermediary, such as an in country research institution, working independently or collaborating with a foreign research institution. Therefore, source countries may benefit from the capacity building offered by "advanced scientific training and smart machinery being a part of the value-added chain" (Castree 2003: 43). I see problems with both of these purported strengths of bioprospecting as 11


a development strategy. The first obvious problem, which Castree among many others have pointed out, is that although the market for biotechnology is estimated to be very large, there is only a "one in a thousand chance" of a sample making it to the research stage (2003: 43). And once a sample does make it to the research stage, it usually takes ten to fifteen years to produce a marketable product. With such a long time scale and such a low probability that samples actually become marketable products, source countries are unlikely to see revenue from their genetic resources for many years. The second problem concerns bioprospecting's supposed potential for capacity building. If source countries receive larger profits from samples that have already undergone some screening and analysis, then those who stand to gain from bioprospecting are those who are already more likely to have stronger technological assets to begin with. Of course, these are not the only ways benefits sharing contracts seem necessarily unequipped to live up to their promises. First of all, there is doubt on both sides of the debate that the market is capable of regulating ecologically sustainable practices. On its own, it is unable to create enough incentives that promote conservation practices that are appropriate in type, magnitude, spatiotemporal distribution, and time-scale. The preferences of the market are too immediate to reflect the "uncertain and diverse benefits of long-term conservation" (Castree 2003: 45). Additionally, the market reflects the preferences of those who are already privileged in terms of power and income. 12


Castree illustrates: In the context of an uneven global political economy...developing countries will typically price their biodiversity cheaply not because they attach little value to the benefits of it but because they are poor. Thus the true' ecological value of in situ biodiversity for present and future generations is not captured in bioprospecting agreements. (2003: 45) The prices attached to source countries' biodiversity reflect the fluctuating interests of pharmaceutical and agrochemical corporations and their abilities to guess the eventual profitability of a resource (McAfee 1999). Bioprospecting, its critics argue, is therefore unable on its own to produce enough economic incentive to conserve biodiversity. Additionally, according to McAfee, countries or communities that attempt to sell their biodiversity in the global marketplace are almost always going to end up even worse off, both in terms of biodiversity and relative economic strength (1999). She argues that this strategy represents a form of export-led growth where genetic resources become primary commodity exportsand that no nation has ever achieved sustained economic growth by exporting primary commodities. She suspects that, Bioprospecting will go through a cycle of commodity boom, market saturation, and then bust, just as happened in the cases of indigo, rubber, sugar, and so many other once-touted tropical miracle crops, leaving the exporting countries poorer and their ecosystems degraded. Genetic resource' marketing is likely to become yet another instance of the oft-tried and always failedstrategy of export-dependent development, in which priorities are determined by outsiders rather than by the needs of domestic economies and local communities. (1999: 147). This critique implies the logic of dependency theory, under which some countries remain in a state of underdevelopment, not because they are not incorporated 13


into the global economic system but because of how they are incorporated, with sustained vulnerability to the market therefore leaving them perpetually disadvantaged (So 1990). These critiques so far have primarily centered around the failure of benefits sharing as an economically viable development strategy. A second area of critique concerns the contentious ways bioprospecting locates stakeholders and distributes benefits amongst them. First, a genetic resource may be found throughout a region, meaning that bioprospecting creates a situation in which adjacent countries or communities may have to compete to have their resource brokered out first. Second, knowledge about biodiversity is "collective, incremental, ambiguous, tacit, and socially distributed" (Brush 1999: 548). Knowledge may be embedded in specific communities but benefits are unlikely to be distributed evenly amongst the community. Privatizing natural resources represents an imposition of distinctly Western ideas of ownership derived from market-oriented societies that are not culturally relevant in some parts of the world. This particular series of critiques is discussed more thoroughly in chapter three. In July 2008, De Jonge and Louwaars completed a study using semistructured interviews with 77 benefits-sharing experts and stakeholders from Kenya, Peru, the Netherlands, and some international organizations, including the UN Food and Agriculture Organization (FAO), the Global Crop Diversity Trust, 14


and the Consultative Group on International Agricultural Research (CGIAR). Stakeholders included members of government, public organizations, the scientific community, industry, and civil society. Their decision to use representatives from Kenya, Peru, and the Netherlands was based on their representation of three major geopolitical cooperation organizations, the African Union, the Andean Community, and the European Union. Their purpose was to assess different motivations, approaches, and outcomes of benefits sharing projects. As a result, they identified six major approaches to benefits sharing, or six major discourses on the justifications of benefits sharing agreements. This list included the North-South imbalance in resource allocation and exploitation, the need to conserve biodiversity, biopiracy and the imbalance in intellectual property rights, a shared interest in food security, an imbalance between intellectual property protection and the public interest, and protecting the cultural identity of "traditional" communities. I use the six distinct but overlapping discourses on benefits sharing identified by De Jonge and Louwaars to frame my discussion of the ways benefits sharing is justified by its advocates. The first major motivation for benefits sharing that the researchers identify is based on an assumption that there is an imbalance in the allocation of benefits derived from research and commercialization of seeds, medicines, and chemical products developed from genetic resources from Southern, biodiversity-rich nations. Proponents of this argument find problem with the idea of genetic resources as public goods, free for extraction and exploitation by arguably less 15


biodiversity-rich Northern nations. This argument led to the CBD's mandate that nations should have sovereign control over their genetic resources and should receive equitable benefits should these resources be commercialized. Benefitssharing therefore should "encourage equity in international economic relations, being regarded as a compensation mechanism" (De Jonge et al. 2009; 39). What the researchers fail to mention is that this approach frames this imbalance as a national issue, primarily between the North and the South, without taking into account the rights and interests of local or indigenous stewards of genetic resources within nations. The second justification the researchers found involves the need to create financial incentives to conserve biodiversity. This justification implies four assumptions: first, that genetic resources are globally important; second, that economic and environmental developments are potentially destructive to the environment; third, that the countries where this environmental degradation is most severe have the least amount of financial capital needed to counter it; and fourth, that benefits sharing of the use of genetic resources may lead to a sustainable flow of funds, knowledge, and technology to conserve biological diversity. Therefore, the intended outcome of this approach is the sustainable use of a resource so that it may be conserved. This approach is criticized for relying on the market to compensate stewards of biodiversity. It is also criticized for its implication that the use of a resource will lead to its conservation (Hayden 2003; Stoll 2009). 16


The third theme the researchers found involves accusations of biopiracy and the global imbalance in intellectual property rights. Proponents of this argument see a disparity in the distribution of intellectual property rights for genetic resources. Internationally renowned environmentalist and ecofeminist Vanadana Shiva has defined biopiracy as a situation in which the "value of Third World biodiversity and intellectual traditions [are] used freely by commercial interests" in the developed world (1997: 11). The 1994 Agreement on Trade Related Aspects of Intellectual Property made intellectual property rights relevant to the international trading system for the first time (Stoll 2009). Despite the ambitious policies of the CBD, communities that grant access to their genetic resources rarely receive any share in intellectual property rights (Greene 2004). Patents may be applied to inventions that "satisfy the criteria of novelty, inventive step and industrial applicability" (De Jonge et al. 2009: 42). Traditional knowledge about plants tends to be established and collective and is therefore not appropriate for patent protection in the same way that newly derived industrial products are. Some bioprospecting proponents see benefits sharing as a way to correct this imbalance in power, offering up alternative methods to conventional intellectual property rights systems, such as collective sui generis intellectual property rights systems to protect germ plasm, local knowledge, and landscapes in bundles of rights such as Traditional Resource Rights The intended outcomes of this approach are "recognition for the knowledge and resources that farmers and indigenous and local communities have managed, conserved and developed 17


through centuries" (De Jonge et al. 2009: 43). The fourth theme the researchers describe concerns a shared interest in food security. Genetic resources related to food and agriculture have historically always been considered "common heritage of mankind," as formally recognized by the FAO (De Jonge et al. 2009: 44). All countries are interdependent in their sharing of agricultural plant germ plasm. As a result of the CBD, most signatory nations have now implemented policies to protect their genetic resources, which have created exchange barriers and higher transaction costs. Many argue that the bilateral model of access and benefits sharing and its resulting decrease in exchange may jeopardize future global food security. In 2001, the International Treaty on Plant Genetic Resources was instituted to manage access and benefits sharing for genetic resources related to food and agriculture. The treaty included provisions for a multilateral model of access and benefits sharing to be better suitable for food and agricultural resources. The fifth theme the researchers identify concerns conflicts between the increase in intellectual property rights and the public interest. Critics point out that biotechnology has tended to lead to the advancement of commercial crops and large-scale production systems while no significant investments have been made in the most important crops and smallholder systems in developing countries, creating a new divide between the industrialized and developing countries. An influx of patents has stifled innovation and put research and development at a standstill. This global concentration of power in the new life-science industry has 18


created public concern that "a small, authoritarian minority is now dictating what kinds of research are permissible and which technologies and products should be available in the marketplace" (Kloppenburg 2004: 314). De Jonge et al. point out that public apprehension about this issue is especially severe because the products involved are basic needs for human life. Some benefits sharing proponents see the process of benefits sharing as an alternative to intellectual property rights systems. While intellectual property rights systems reflect an imbalance in the benefits of research and development, benefits sharing could allow for a possible avenue for the transfer of technology and information, working to correct this conflict of interests. The final justification for benefits sharing the researchers describe involves protecting the cultural identities of traditional communities in a globalizing world. These proponents believe that benefits sharing legislation could be reformatted so that local or indigenous groups incorporate their own existing customary laws into them and tailor them to more thoroughly reflect their interests. Castree argues that leftist critiques of benefits sharing, many of which I explained earlier in this chapter, take the form of external and excessively abstract assessments that are lodged in the academy and do not use much empirical evidence. Although he aligns himself with the leftist criticism of bioprospecting, he believes the criticism has not yet reached its intended 19


audience because critics "have tended to speak in a language that is unlikely to influence its far more policy-savvy and policy-powerful advocates" (2003: 37). In my final section of this chapter, I evaluate to what extent the leftist criticisms are being incorporated into the specific benefits sharing policies of the International Co-operative Biodiversity Groups program. Joshua Rosenthal argues that contractual benefits sharing agreements can be "designed to fit any conceivable relationship between collaborators" (1996: 1). Program director of the International Co-operative Biodiversity Groups and staff of the Fogarty International Center of the National Institutes of Health, Rosenthal has written prolifically on his perceived success of the ICBG program and its larger implication on bioprospecting. The ICBG is a program designed to stimulate bioprospecting funded by the National Institutes of Health (NIH), The National Science Foundation (NSF), and the US Agency for International Development (USAID). It is an integrated conservation and development program with the following goals: 1. To improve human health through discovery of natural products with medicinal properties; 2. To conserve biodiversity through valuation of natural resources, training, and infrastructure building to aid management; and 3. To promote sustainable economic activity of communities, primarily in less developed countries in which much of the world's biodiversity is found. (Rosenthal 1996: 2) Each ICBG is head ed by a princi pal acad em ic investigator th at leads a r esea rch program involv i ng n atural products c hemistry, drug development, or ethn obo tan y They also oversee the research of associate programs involving ot her acad emic research institut i ons local and interna tiona l NGOs s ituated in the hos t counties, 20


and freq uen tly a comme rcial p harma ceut ical pa rtner. Benefits sharing arises b oth from the r esea rch process its elf through tech nol ogy and knowledge transfer and through the proceeds of any drug discoveries. As out lined by Rosenthal, the ICB G's bio prosp ecti ng agree ments may include both m one tary and non-mo netary forms of compensation Monetary compensation usua lly tak es th e form of r oyal ties and advance payments, while non-monetary compensation usually involves capacity buil ding proje cts such as training, equipmen t, and in fr as tr uc t ure devel opme nt. Rosenthal also descri bes other less tan gib le bene fits, incl uding r esearch on dise ases r elevant to the host country and the building of collaborative relationships. W he n a c om me rc i al iz ed pr od uc t is d er i v ed fr o m a b io pro s pe c t i ng agreement, compensation to a host country may take the form of royalty earnings or a percentage of th e i ncome based on the level of co ntributions of t he partners. If the product is synthesized based on a lead from a source country, r ather th an from a direct isolate, partners m ay not r ecei ve as high of r oyalties. Participants may be rewarded as sources of plan ts themselves or as s ource s of k nowledge about plants with poten t ia l medicinal properties. Royal ty earni n gs may be v ery generous if the product is s ucc ess f ul; however, evidence indicates that this is rare and act ual earn i ngs m ay be m uch less than expected (Hayden 2003). There is a low rat e o f success bo th beca us e o f the low prob a bi l i t ies tha t discoveries wil l lead to marketable drug s and becaus e of the tim e scale of drug development, which usually takes at least ten years. 21


A second form of m o net ary ben e f i ts sharin g invo lv es advance m o net ary payments. Advance monetary payments are attractiv e because th ey deliver money to communities upfront and c arry a low er r isk tha n r oyalty payments. Contracts that incl ude advance payments, however, may offer lower royalty payments as a result Rosenthal c omme nts th at proj ects th at use this met h od may hel p to est abl is h trust relationships with host institut ions, s h owin g loca l resource users and pol icy makers th a t alternatives to dest ructive harvestin g practices m ay inde ed be rewarded" (1996: 5). Thr ee ICB Gs have inclu ded advance payments in th eir contracts, which are bein g used to fun d biod iversity management, and health and local devel opm e nt projects. Rosenth a l describes different reac tions from phar m aceu tical part ners about requests for advance payments. Wh i le s ome are hesitant to pay money upf ront bef or e determining the productivity of the bioprospecting arrangement, they may be more wil lin g to donate used equipment to assist the r esearch effo r ts. Rosen thal also has fo und evidence that pharmaceutical fir ms suppo rt advance payments for public relations purposes. Bec a use there are s o many po t ent ial limits on monetary benefits arising from bio prosp ecting, Rosen th al advo cat es as much empha sis as possib le on benefits tha t build capacity. These approaches include training, technology transfer, infrastructure devel opme nt, and institutional alliance s for biodiversity management and bio medi cal r esearch. A ll ICBG proje cts include some level of capacity building in their benefits agreements. 22


A fo ur t h typ e of compensationrelated to but separate from c a pacity buildinginvolves foc usin g on r esearc h that is part icularly r e levan t to th e host country, incl uding unde rstudied disea ses or biod iversity concerns. Disea ses tha t are most prominent in underdeveloped countries are often under-researched because they do not seem particul a r ly prof itable to large pharmac e utical c o r p o r a t i o n s R o s e n t h a l a r g u e s t h a t b i o p r o s p e c t i n g a g r e e m e n t s c a n b e ha rnessed to guide resea rch to ward s dis ease s of impo rtance to so urce countries. He also argues that the re is an impo rtant intersection between serving the disease research nee ds of source countrie s and m eetin g c onserv ati on g oals. Finding locally sourced treatments for local ly preval ent disea ses m ay hel p increase the effort to conserve local biod iversity. Pa rticularly in tropical c limates, v e c t o r c o n tr o l a p p r o a c h e s t o d i s e a s e e r a d i c a t i o n s u c h a s e x t e r m i n a t i n g mosquitoes to c urb malariahave historically been not only dest ructive to the environment but also have worked to cr eate s tigmas among s ome public health officials agai ns t wetlan ds and tropical forests as dise as e-ridd en wastel and s. Seeking other treatment strategies for these types of disea ses is not only important for public hea lth but also helps c omm unica te the value of biod ivers ity Rosenthal also argues th a t bioprospecting agre em ent s in bio logi cally diverse but threatened areas "offer the opportunity to bring experts on particu lar bio log ical groups or tec hni ques in to ide ntify local flora and hel p desig n m ana gement strategies" (1996 : 7). Th is s tate ment however, seems to overlook the value of existing bodies of traditional knowledge and alternate classification systems. 23


Rosenth a l emphas izes the c omp l exity of identifyi n g who should receive benefits in bene fits sharin g agreements. A greem e n ts can be arranged to award actors of all sc a les, ranging from individuals to communities, NGOs, universities, conservation and devel opment grou ps, or gover nment institut ions. Th e ICBG program's appro ach to ide ntifyi ng bene fit-recipi ent s is based on its conservation objective; bene ficiaries s hou ld whe rever possible be the stewards of the genetic resources. The ICBG program lists "disclosure and conse nt of ind ige n ous or other loca l stewards" as its first princi ple of conduct for accessing genetic resources (ICB G 2011). Inv olve d communities must receive some form of compensation w hether or not their ethnobo ta nical information is used. In fact, the involvement of local communities as beneficiaries is s o ing rain ed in the r hetoric of the ICBG program tha t s om e ICBG proj ec ts end up c onstructing c ommuni ties where they m ay not have existed bef ore. In her et h nogra phy of th e ICBG Latin America proje ct, Cori Hayden fou nd th at when researchers were unab le to bot h collect sample s and distribute bene fits in a singular communi ty, they instead opted to collect s amp l es from vendors in urban m arkets, who were not considered origina l sources of knowl edg e and therefore did not have to sign any benefits sharin g agree ments (2003 ). The researchers then set up corresponding benefits sharing agreements with an unrelated group of traditional healers and an organic bean cultivation project even th oug h they were not the sources of their collections. Hayde n s research demonstrates the ICBG prog ram' s fa i lure to locate c ommu n i t ies tha t live up to the ir imagine d d efini tion as pla nts, knowle d ge, 24


and pol i t ical authority bund led together in discrete, ide n t i f iabl e, and thus rewardable packages" (2003a: 360). This confusion over the concept of community is further discussed in chapter two of this thesis. The ICBG program seems to have incorporated some leftist critiques into its bene fits sharing policies. Recognizing the limited potential for commercial products, the program at tempts to integ rate as many advan ced monetary payments as possible, as well as non-monetary forms of ben e f i ts. These nonmonetary forms of b enefit include making solid efforts at capacity-building so that the source country univ ersities may become m ore compe t i t ive in the ir own research v entures. Th ey attemp t to c ond uct research th at is relevant to the host country, both in terms of diseas es and biodiversity conservation. Th ey seem to acknowledge th e difficulty in iden tifying stake h olde rs and equ i t ab ly distributing benefits amongst th em, althou gh in many cases th ey fail to effectively address this issue. Overall, th e ICBG prog r a m seems to have incor porate d some le ftist critiques but it is still ultimatel y a m arket -mediated s trategy and, th erefore not exempt from the more over-arching critiqu es of assign i ng m one tary v a lue to nature and creating new markets where they have not previously existed. Th e program s til l represents a form of capitalist expansion and operates unde r th e logic of increa sing economic growth as a c onse rvation strategy. It still ultimatel y relies on the market to deci de which plants s hould be conserved. Its m ethods haphazardly determine who shoul d get to stake a c laim in biod iversity and 25


receive benefits, and who should be excluded. 26


Chapter Two: Communities and Collection Sites We can collect some seeds for you, that's fine. But what will we do in the meantime? Collecting plants is a fine activity, but we have to put food on the table first!" -Marta, President of La Mesa Artesan’a Collective, Sonora, Mexico. (in Hayden 2003b: 82) In chapter one of this thesis, I discussed the CBD's call for the productive use of biodiversity as a conservation strategy. This second chapter focuses in on the particular ways the CBD, and the ICBG bioprospecting projects that it sanctions, recast biodiversity as a commodity that comes necessarily bound up with a community of stakeholders and stewards. To demonstrate how the ICBG uses this idiom of community to transform bioprospecting into a localized form of economic development as well as both a mandate and a method of conserving valuable traditional ecological knowledge, I use a case study of a bioprospecting project negotiated between the University of Arizona and Mexico's National Autonomous University (UNAM). In this case study, I rely heavily on anthropologist Cori Hayden's ethnographic research on the project as well as reports from the main project coordinator, Barbara Timmermann. In September of 1993, the ICBG awarded funding of $500,000 a year to the project "Bioactive Agents from Dryland Plants of Latin America," coordinated by Dr. Barbara Timmermann, a professor in the Department of Pharmacology and Toxicology at the University of Arizona (Timmermann 1999). Amongst the first five ICBG grants, this project sought to discover and develop pharmaceutical 27


products and crop-protecting agents from plants of arid and semi-arid ecosystems in Chile, Argentina, and Mexico. U.S. based research collaborators included several departments of the University of Arizona, the NIH-affiliated Hansen's Disease Center, and two American Home Products Corporation companies, Wyeth-Ayerst Laboratories (now part of Pfizer) and American Cyanamid (now Cytec). Latin American collaborators included scientists from Chile's Pontificia Universidad Catolica, Argentina's Instituto de Recursos Biologicos, the Universidad Nacional de la Patagonia, and the Centro Nacional Patagonico, and Mexico's Universidad Nacional Autonoma de Mexico (UNAM). This project was unique for its emphasis on plants from arid ecosystems. The rhetoric of biodiversity conservation is often fixated on tropical rainforest biodiversity specifically, with much less attention given to the productive capacities of dryland plant resources (Slater 1996). Many xerophytic plants (plants that have adapted to survive in environments that lack water) have unique properties resulting from their adaptations to extreme heat, desiccation, ultraviolet radiation, and herbivory (Timmermann 1999). The collaborating researchers were interested in the potential medicinal properties that may result from such adaptations. The project coordinator describes the organizational set up as a wheel where the University of Arizona acts as the hub and all collaborating institutions as spokes (Timmermann 1999). The University of Arizona, therefore, negotiated seven separate agreements, one for each collaborating institution, defining the 28


scope of work obligations of the University of Arizona and the collaborator, responsibility for permits and for obtaining informed consent, the collection and preservation of data, ownership of inventions, confidentiality, funding support, bioassy screening, reports, responsibility to establish a sustainable agricultural source of the bioactive plant in the region of its collection, and collection and distribution of royalties to the participating parties. (Timmermann 1999: 48) Under those agreements, source countries must supply at least 100 plant extracts each year in order to receive funding from the ICBG in the following year. Wyeth-Ayerst and American Cyanamid conduct bioassys on the plant material provided by the Chilean, Argentinian, and Mexican universities, but they do not do this for free. The agreements stipulated that the companies would be paid a reduced fee for their bioassys, in exchange for first rights to license any products the plant collections lead to (Hayden 2003b). Rather than the companies paying for access, as described by Rosenthal referenced in chapter one of this thesis, the companies in this bioprospecting agreement are paid for their participation. The agreements also stipulated that the University of Arizona would hold any patents resulting from the collections with the potential for shared patent agreements between the University of Arizona and the Latin American universities. In terms of the actual "benefits sharing" portion of the agreement, the exact stipulations are not publicly disclosed. Hayden explains that this confidentiality is customary in bioprospecting agreements and is usually explained to be for the protection of everyone involved"no one, whether WyethAyerst or UNAM, will presumably be limited in what they can negotiate by being pinned down by previous percentages" (2003b: 69). If a sample leads to the 29


development of a product, the companies share a percentage of the royalties with the University of Arizona. Although the exact percentage is part of what is confidential to this agreement, Hayden discloses that the amount is rumored to be between 2 and 15 percent. Of that 2-15%, Arizona keeps 45% and 55% goes to the source country that supplied the original sample. What this distribution 30 Figure 1 : The Mexico portion of the Latin American ICBG agreement (Adapted from Hayden 2003 and Timmermann 1999)


means is that Mexico ultimately only receives 2-5% of the actual royalties from the product, which would then be dispersed to various stakeholders and groups within the country (Hayden 2003b). Admitting the low probability that the samples will actually lead to a patentable product, and thus a flow of royalties to the source country, ICBG Latin America proudly boasts its commitment to scientific capacity building and training as an alternate form of benefits sharing. Timmermann states that, "a considerable effort in this ICBG is directed towards capacity-building and professional training in the source countries to develop long-term collaborative and sustainable relationships between the institutions involved" (1999: 47). Her descriptions of such training, however, are limited to the training of four Argentinian scientists and two Chilean scientists in U.S. laboratories and on-site training within the source countries on database management and natural products chemistry. She also mentions U.S. researchers offering lectures on biodiversity prospecting and drug discovery at multiple academic institutions and governmental and non-governmental organizations throughout the source countries (Timmermann 2001). In terms of infrastructure development, Timmermann mentions the purchasing of "modern equipment and supplies for natural products chemistry laboratories and herbaria, computers, geographic information systems, and other database technologies" (1999: 48). Hayden explains that it was exactly this transfer of equipment that appealed to the Mexican scientists and enticed them 31


to participate. Mexico was the only country of the three to receive its own bioassay technology so that the Mexican scientists could conduct some of the analysis themselves before sending their samples to the U.S.-based companies (Hayden 2003b). Such technology was seen as extremely beneficial for developing the research capabilities of the Mexican university. The information produced by these machines is, "of enormous professional value, whether or not it leads to a pharmaceutical productAccess to up to forty-five screens is a great advantage for producing publications, a vital piece of professional and intellectual capital" (Hayden 2003b: 70). Technology transfer is important not just so that a country may conduct as much of the analysis as possible prior to passing a sample on to the collaborating companies and thus accrue a higher percentage of royalties. It is also a way for collaborating source country universities to become more competitive in their own autonomous research initiatives. Projects in the source countries were each headed by principal investigators from the in-country research institutions, in Mexico's case, UNAM's Robert Bye. These principal investigators were responsible for producing the requisite 100 samples each year to ensure continued access to funding and were thus charged with the controversial task of locating communities where they might both collect plants and identify the stewards of these plants to receive benefits. The Latin America ICBG states as part of its collection policy, When available, local collaborators in the collection areas are contacted and interviewed about plant remedies from the local flora. This knowledge is gathered primarily to help insure preservation of this cultural knowledge, to increase the chance of drug discovery, and to maximize the potential of 32


rewarding the local community with financial benefits. (Timmermann 1999: 38) This iteration of the idiom of local community' is an example of the assumption made throughout the literature of the ICBG program that, local or community knowledge, resources, and peopleare to be found together in discrete, identifiable, and thus rewardable packages" (Hayden 2003a: 360). If the "basic philosophy" of the ICBG is that "appropriately designed natural products researchcan bring both short and long-term benefits to the countries and communities that are the stewards of the genetic resources," then the principal investigators are in an awkward position (Rosenthal 1996: 2). Because they are the recipients of all non-monetary, "capacity-building" benefits in these agreements (training programs, expensive technology), they seem to straddle both the roles of biodiversity-stewards/benefits-recipients and those responsible for recruiting other local stewards. Indeed, the language of the ICBG is rife with demands for "local stewards" as beneficiaries; however, in the Arizona-UNAM agreement "local" becomes an empty, meaningless qualifier that appears to represent anyone in Mexico. For the ICBG principal investigators, the process of finding benefits recipients has been the source of certain discomforts. Hayden points out that they maintain a precarious, intermediary position of power as they are, "in many ways structurally marginal vis-ˆ-vis their U.S. counterparts, but also elite with respect to their rural interlocutors" (2003b; 75). In relation to their collaborators at the University of Arizona, the Latin American scientists have far less access to 33


technology and opportunities to publish in prestigious, English language-based academic journals. Some of the Latin American researchers articulated to Hayden their experiences of being treated condescendingly by their collaborators in the North. On the other hand, as principal investigators, the Latin American scientists are nudged into at times uneasy positions of power in their home countries in their search for benefits sharing participants to fill the role of the stereotypical rural steward of natural resources. These benefits are intended to fund conservation efforts by rewarding the people who sustainably manage their resources. These articulations of conservation efforts, however, do not come without paternalistic overtones. As Timmermann states, "an important objective of the ICBG program is to promote local responsibility for the conservation of biological diversity." The invocation of "responsibility" implies a moral imperative that is common throughout discourse on sustainable development since its popular definition was coined by the Brundtland report (Adams 2008). Emilio Fern‡ndez, a collaborating Argentinian scientist, explains, "we can't force people into that role, we need to ask what people want, and maybe what they want is to move out of the countryside and into Buenos Aires" (Hayden 2003b: 76). Robert Bye, principal investigator of the Mexican agreement, was particularly uncomfortable collecting and distributing benefits in singular communities because of his strong conviction that "medicinal plants are a common, national legacybetter described as Mexican,' than from one 34


community'" (Hayden 2003b: 120). It was in part this logic, along with some extenuating circumstances attached to the UNAM-Arizona contract, which led Bye and his team to devise some unique collecting strategies that seem to directly contradict the ICBG's insistence on local communities as sites of plants, knowledge, and benefits. The UNAM-Arizona contract took an additional two years to be finalized, meaning that the project was on hold for the first two years (and therefore unfunded) even though the researchers were still held to their quotas of 100 samples per year to the collaborating U.S. companies. When the project finally commenced in 1995, the researchers were forced to make up for the previous two years of missing samples. In order to secure plants as quickly as possible, Bye and his team opted to purchase plants in urban markets, collect samples on roadsides and other public areas, pull data from already published ethnobotanical literature, and take samples from existing UNAM herbaria collections. None of these collection sites were considered original sources of knowledge; therefore, they were exempt from enrolling contract-signing benefit recipients. Describing the collections in urban markets, one UNAM ethnobotanist explained to Hayden that, "plant vendors are merely vectors of transmission of informationthey're not sources so they don't merit part of the royalty benefits" (2003b: 134). Market vendors are usually not plant suppliers themselves. They may buy plants from wholesalers, rural men, women, and children who bus into the cities, 35


local miners who collect plants in their spare time, or farmers who collect the plants that grow on the edges of their fields (Hayden 2003a). In this way, market plants are well-traveled, changing hands many times, disconnected from their source. Because no one community lays a claim in them, Bye believes market collections allow him a degree of flexibility to decide who should receive the benefits. The Latin America ICBG is not the only ICBG project to make its collections in the public domain, therefore avoiding the obligation to locate communities that can serve as both sample sources and benefits-recipients. The Costa Rica ICBG, a project negotiated between Cornell University, Costa Rica's Instituto Nacional de Biodiversidad (INBio), and the U.S.-based Bristol-Myers Squibb Pharmaceutical Research Institute, conducted research on tropical insects in the Guanacaste Conservation Area as potential sources of pharmaceutical products. The researchers in this project, sought to sidestep this controversy [of locating relevant biodiversity stakeholders] from the outset by collecting only 'wild' not anthropogenic biodiversity, and by doing so only in protected nature parks and reserves. In this way, [they have] been able to equate the benefits sharing issue with the question of what Costa Rican 'society at large' receives from INBio's work on 'biodiversity as a national resource. (Castree 2003: 44) The collection methods of this project echo Bye's insistence that biological resources remain a "common, national legacy," rather belonging to a particular community. In Timmermann's report of the ICBG Latin America project, five years in, she describes, 36


If an industrialized product is developed from plant material, the community from which the plant sample originated will have priority in producing raw material from in situ populations, if management allows a sustainable production. Cultivation of commercial crops in the priority community will be necessary if the natural population cannot sustainably produce sufficient material, as is very likely. Hence, the local community will benefit economically by additional jobs and taxes as well as by the conserving habitat. (1999: 51) This description constitutes the Latin American ICBG's basic model of community economic development. Note that five years into the project, despite Bye and his team making the overwhelming majority of their collections in the public domain, the coordinator still makes the assumption that plants are necessarily bound to a community of stakeholders and stewards. This model of economic development is a yet unrealized promise, predicated on the eventual development of an industrialized product. Because the urban markets, roadsides, ethnobotanical literature, and UNAM herbarium collections that Bye and his team collected information and plants from are part of the public domain and therefore inadequate for identifying sources of benefit recipients, the researchers have created alternate ways to incorporate communities into the ICBG project. Bye's team set up corresponding benefits-sharing agreements with a small artesan ’a collective in Sonora indigenous collectives in Chihuahua working to cultivate medicinal plants for the sale in markets, and a group of Oaxaca-based traditional healers, even though they were not originally the sources of their collections (Hayden 2003a). In his purposeful avoidance of collecting in "local communities," Bye exercises the power to decide what groups receive benefits not because they lay claims in a 37


sampled natural resource, but because they represent his own definition of "community," a separate but equally imagined definition than that of the ICBG. Choosing urban markets as a collection site was a strategic move for the researchers not only because it allowed them to avoid identifying appropriate stakeholder communities, but also because it granted them efficient access to certain information about the samples. As Hayden explains, "when you buy plants in markets, you also buy informationabout how the plant is prepared, where it is collected, and, with luck, how to locate the collectors" (2003b: 126). For Bye, using markets as the focal point of ethnobotanical studies is not a new research tool. He has used market research in his studies for years prior to being incorporated into the ICBG grant. Bye explains his contention that markets are an important site of study for examining the relationships between people and plants: Markets represent an intensified interaction between people of different socio-economic groups and special plants. People require plants to fulfill certain biological, cultural and economic needs. When removed from daily contact with the plant sources, people depend upon an organized exchange structure, such as a market, to obtain the plants. The market allows for higher intensity of selection of plants (due to economic constraints) and eventually leads to more intensified interactions between the plant populations and the people in direct contact with the plants. In addition, the presence of plants in the market over long periods of time suggests that these plants produce effects which are expected by consumers. As a result, pressure on certain plants and plant populations is increased. Certain plants are continually tested, evaluated, and demanded because of their recognized values, properties, and effectiveness. (1983: 3) For the ICBG project, plants sold in markets are attractive because they usually have well known medicinal properties, meaning that the samples these 38


collections produce are likely to be biologically active. Bye also contends that market collections provide important pathways for setting up the kind of community development projects that the ICBG program mandates. First off, market studies allow the researchers to determine the approximate local supply, demand, and economic value of certain plants. Tracing plants that are in high demand back to their collection sites allows the researchers to evaluate how such demand is impacting the wild populations of these plants. This data can then be used to prioritize plants that are in danger of extinction (Timmermann 1999). Plants that are already in high demand can become the subjects of smaller-scale cultivation projectseven when they fail to produce marketable pharmaceutical productsto mitigate the stress on wild populations. Even before receiving the ICBG grant, Bye worked to establish these kinds of projects in Chihuahua for the cultivation of matarique plants, whose roots are commonly sold in markets for treating diabetes as well as other illnesses related to the liver, kidneys, and pancreas (Hayden 2003). Because the plants are harvested for their roots, wild populations may be quickly depleted. Bye also believes market collections can be good pathways for establishing community development projects because they allow him the flexibility to determine where such projects may be the most useful. As he explains, some of the plants have a very wide distribution in terms of their use and to a certain degree, one could say, this is Mexican, this is not from this community...remember, the main objective here is to promote conservation and maybe there's a greater need for conservation and social-economic 39


development in another community. And if we stick to this straight definition that the person who gave the information gets all the credit, then there's a problem if we want to help somebody else. (Hayden 2003a: 365) This is the reasoning he uses to justify enrolling unrelated parties as benefitsrecipients, even when they are only marginally involved in supplying plant samples. As stated above, Bye exercises the power to decide what groups receive benefits not because they lay claims to a sampled biological resource, but because they represent his own definition of "community," a separate but equally imagined definition than that of the ICBG. In struggling to locate appropriate communities to reward, the researchers seem to produce communities, rather than finding them. I use two examples from Hayden's ethnographic account of this projectthe collectors that supply a Mexico City market with yerba del conejo and the La Mesa residents that harvest wild magueyto illustrate this point. After seeing the yerba de conejo plant in a market several times, Bye took an interest in this plant as a potential candidate for one of his cultivation projects. After visiting the same market stand many times, he managed to meet one of the suppliers, a man whose brother owned a small farm and allowed him to collect the plant along the outskirts of his fields, beyond his property limits. The brothers allowed Bye to visit the farm and make a few small collections for himself, which he then replanted in the UNAM Botanical Garden. Bye explained to the brothers that after conducting some preliminary studies, if the plant proved to be of interest, he would return to the area with his team to give ICBG-funded 40


workshops to "teach people that this is a valuable plant" and to possibly set up a cultivation project that could allow them to potentially one day receive royalties (Hayden 2003b: 149). This example illustrates that although the ICBG project guidelines assume that communities will produce plants for the researchers, sometimes the researchers have to look to plants to produce the communities. It seems odd that Bye should feel compelled to "teach people" about the value of this plant, when it seems to already have a well-known local value in the markets. Bye bypasses the market vendors in order to search for an appropriate community. Although the market vendors do not become recipients of royalty benefits, they do receive a kind of monetary benefit from the UNAM researchers that buy from their market stands. These vendors do business with the researchers several times a year, making a reasonable, reliable profit. In contrast, the communities enrolled as royalties-recipients have yet to receive any payments as their benefits are predicated on the eventual development of an industrialized product. While the market vendors are the only ones so far to have actually received money for plants in the project, they are not the "local community" beneficiaries to be featured in the press releases of the ICBG and the collaborating pharmaceutical companies. The market vendors are not, as Hayden puts it, "the kinds of people that will be made visible specifically as local subjects and community interlocutors" (2003b: 145). These more "visible" community beneficiariesthe handicraft cooperative 41


in Sonora the plant cultivators in Chihuahua, and the traditional healers in Oaxacawere not brought into the bioprospecting agreement because they necessarily exemplified the kind of biodiversity-steward communities that the ICBG seeks to reward. In some cases, it seems these kinds of communities had to be created. For example, for the handicraft cooperative in Sonora, conservation was never necessarily one of their main goals. The cooperative, a group in La Mesa, a Mayo community in Sonora, was established through government stipends to make bags and wooden spoons for tourist markets. One of Bye's students, Joaqu ’n Mendez, had ties in La Mesa, where he had previously conducted research, and arranged for the UNAM researchers to visit the community (Hayden 2003a). During this visit, Mendez arranged to have some of the community members give a demonstration on pitroasting the maguey plant, an agave native to Mexico, which produces mezcal Given that the number of community members that knew how to make the mezcal was dwindling and that one particular species of maguey was becoming more rare, Bye saw this experience as a chance to incorporate La Mesa into the ICBG project and preserve a dying cultural practice by impressing on them that their resources and knowledge could yield a profit. He agreed to supply the cooperative with new tools as well as enlist them as potential future recipients of royalties if they would agree to start collecting seeds and make some basic conservation efforts. In Timmermann's account, she describes this exchange as an example of 42


the ICBG being "actively involved in community work at the request of...local communities" (1999: 51). However, according to Hayden's account, the involvement of La Mesa was at the request of Bye's student, not the community itself. She explains that the "immediate benefits for the communities have been determined by community representatives. For instance, in Masiaca, Sonora, the handcraft cooperative was supplied with tools it needed for finishing wooden craft" (1999: 52). This account is not entirely inaccurate; however, Hayden, who accompanied the UNAM researchers on their visits to La Mesa in 1997, remembers the negotiations to be a little more complicated. She describes a struggling cooperative, making little money from the very small government stipend, attracting very few tourists as they were virtually off the map, and producing handicrafts of relatively poor quality in comparison to their competitors. When the UNAM researchers arrived for their second visit, they made an offering of some basic tools which Marta, the president of the handicraft cooperative, had previously expressed interest in, as a "demonstration of UNAM's good faith commitment to a long-term, benefits sharing agreement" (Hayden 2003b: 81). For the community members of the struggling cooperative, new tools and even the small possibility that they may receive royalties in the future was an enticing proposition. However, holding up their end of the bargain as stewards was not quite as easy to negotiate. As Marta explained to Bye, which I quoted in the beginning of this chapter, "we can collect some seeds for you, that's fine. But what will we do in the meantime? Collecting plants is a fine activity, but we have 43


to put food on the table first!" (Hayden 2003b: 82). The UNAM researchers, however, seemed determined to convince the La Mesa community that they could be conservationists. They saw their method of cutting the maguey plant's stem at a young age as a sustainable management tool. When the stem is cut early, instead of the plant growing upwards, it grows outwards and produces buds in its roots. When the maguey head is harvested, the buds remain in the ground and continue to produce more plants. While this appeared to be a conservation strategy to the UNAM team, the community members contended that this practice was only carried out because it produces a sweeter mezcal. When pressed about whether they practiced any particular management techniques on the plant, community members just replied, "Nothing! It's wild, you don't have to do anything" and "You don't do anythingit just grows" (Hayden 2003b: 81). This is a second, less direct example that rather than finding communities to reward, the ICBG produces them. This example illustrates that even though the ICBG endeavors to reward local community stewards of biodiversity, these communities do not always see themselves as such stewards. Conservation is not a universal goal. In the process of being incorporated into the ICBG mission, groups are converted into the kind of knowledge-supplying and resourcemanaging communities that the ICBG finds rewardable. As in the case of the Mayo community in Sonora, this conversion is often met with confusion and skepticism but ultimately agreed upon with the promise of the deliverance of 44


future royalty benefits. Such benefits, however, are uncertain and unlikely. What happens when communities are promised inclusion in the market in exchange for their conservation efforts but this promise is never fulfilled? Are these conservation efforts replaced by less ecologically sustainable but more economically lucrative practices? 45


Chapter Three: Indigenous Identity and Intellectual Property Rights When I first heard about intellectual property rights, I tried to understand it within my own cultural framework. I don't do that anymore. It's very clear in my mind that intellectual property rights is a package of legal instruments and no more than that. They are legal instruments that have a very defined purpose, that have a very limited scope, and that are used for purely commercial purposes. -Aroha Te Pareake Mead, Maori Activist and Scholar (in The Leech and the Earthworm 2003) In chapter two of this thesis, I focused in on the particular ways the CBD and the ICBG bioprospecting projects that it sanctions recast biodiversity as a commodity that comes necessarily bound up with a community of stakeholders and stewards. This third chapter focuses on the ways bioprospecting agreements conceive of traditional or local knowledge of biodiversity and what some of the consequences might be of applying intellectual property rights to these knowledge systems. I use a case study from an International Cooperative Biodiversity Groups program in Peru to explore how bioprospecting contracts include and exclude community members from these knowledge claims. Although it is a concept much celebrated by bioprospecting enthusiasts, 'traditional knowledge' is hard to locate and hard to define. Their definitions may range from simply the knowledge collectively held by a community of the biodiversity in an area, to the more romanticized and stereotyped sacred wisdom of a traditional healer. Although it is impossible to conclusively define what traditional ecological knowledge is, I look to Berkes' definition from Sacred 46


Ecology as a more nuanced explanation: Putting together the most salient attributes of traditional ecological knowledge, one may arrive at a working definition of traditional ecological knowledge as a cumulative body of knowledge, practice, and belief, evolving by adaptive processes and handed down through generations by cultural transmission, about the relationship of living beings (including humans) with one another and with their environment. (2008: 7) It is troublesome that much of the literature of bioprospecting's enthusiasts treat traditional ecological knowledge as another natural resource that must be saved from the inevitable encroachment of the Western, modern world. Walter Lewis, the program leader of the ICBG-Peru project outlined later in this chapter, writes that, the culturally intact South American J’varos use plants now as they have for perhaps thousands of years. However, serious dangers exist for the survival of such peoples and their societies, and the ecosystems that nurture them and provide western and traditional medicines with plant products for improving human well-being. In this race against ecosystem destruction, researchers in many disciplines must rally to provide the impetus to save global diversity, while, at the same time, accelerate studies of ethnomedicine in consort with biomedical and chemical efforts to develop new natural products and drugs into the next century. (1999: 70) This passage is just an example of a number of the problematic assumptions ICBG researchers use in order to justify and promote their methods of research. First, Lewis constructs the idea of the "culturally intact" J’varos as a cohesive, homogenous culture when in reality the J’varos are comprised of hundreds of thousands of individuals and at least four distinct ethnic groups. His assertion that they are "culturally intact," using the same plants they have used for thousands of years, invokes the stereotype of the noble savage and implies to 47


the reader that they are a static, traditional culture that would be corrupted by any modernization (Hames 2007). Furthermore, he expresses a moral imperative that Western academics must take it upon themselves to act as the saviors of this fragile, vulnerable culture and preserve, by making it a subject of study, its threatened ethnobotanical knowledge (Agrawal 1995). The potential role of this ethnobotanical knowledge in drug discovery is widely debated. To illustrate the potential contributions of traditional knowledge, many point to highly contentious, historical examples such as the neem tree and the rosy periwinkle. The neem tree has been used for centuries in India as a source of biopesticide and medicine. Today, over a dozen patents have been issued to U.S. and Japanese corporations for neem-based formulas (Shiva 1997). The rosy periwinkle is a flower native to Madagascar that gave rise to two drugs developed by Eli Lilly, vinblastine and vincristine, without any royalties flowing back to Madagascar (Karasov 2001). Although these examples, as well as many others, exemplify the profound injustice of the multimillion dollar profits of this type of resource extraction, it is doubtful that most bioprospecting agreements will ever produce drugs that are as lucrative. Pharmaceutical chemists have estimated that the chance of a plant leading to a marketable drug is only about 1 in 10,000 (Hayden 2003b: 55). The 1980 United States Supreme Court case Diamond v. Chakrabarty is cited as a major turning point in biotechnological research. In this case, a genetically modified strain of bacteria developed by microbiologist Ananda 48


Chakrabarty in order to help clean up oil spills was granted patent protection (Brown 2004). This case marked the first incidence of the patenting of a living organism, paving the way for the now commonplace patenting of biotechnology. Intellectual property protection may be applied to plants that have been altered in order to create a new crop variety. In the United States, new crop varieties must meet four criteria: novelty, uniformity, stability, and distinctiveness (Jondle 1993). Plant protection varies from country to country. Generally, there are two main categories of this kind of protection: plant-variety protection and utility patents. A third type of intellectual property protection involves "know-how" or trade secret laws. In the simplest terms, a know-how is an economic asset in technology transfer, defined as confidentially held information and accumulated skills and experience that has commercial value. For plants, a know-how can include any "information, process, or germplasm that gives an owner competitive advantage" (Jondle 1993: 305). Know-hows are not governed by any international treaties so they vary on a country-to-country basis. The application of intellectual property rights to plant materials allows the market "to work where it otherwise would not, permitting a person to exclude others from using his or her ideas or plants, except under license or royalties" (Brush 1996: 14). By excluding others, intellectual property rights-holders maintain the right to profit from their plant or idea. The application of intellectual property models to "indigenous" or traditional knowledge has been criticized by a number of scholars as an imposition of Western ideas of individualistic ownership 49


that are culturally irrelevant in many circumstances (Brush 1997; Brown 2004). These critics of intellectual property systems are also concerned with the difficulty of applying property rights to knowledge that may be widely dispersed throughout a region significant to a variety of groups. Environmental and ecofeminist activist Vandana Shiva takes strong offense at the idea of the "capitalization of life." She also outlines two ways she believes intellectual property rights stunt innovation, especially for the Global South. First, she takes issue with the shift from common rights to private rights, which exclude all kinds of knowledge, ideas, and innovations that occur in the "intellectual commons." She argues property law is a "mechanism for the privatization of the intellectual commons and a deintellectualization of civil society. The mind becomes a corporate monopoly" (1997: 10). Second, she argues that intellectual property rights only recognize knowledge and innovation when it can be marketed. "Profits and capital accumulation are the only ends of creativity; the social good is no longer recognized" (1997: 10). Other scholars have attempted to envision alternate forms of property systems that might be more applicable to cultural knowledge. One of the most vocal is Darrell Posey, who in the 1980s and 90s endeavored to create property rights systemTraditional Resource Rights--that enabled more collective ownership of cultural knowledge. Brown suggests that perhaps as a response to these critiques of intellectual property, the ICBG has, for the most part, strategically avoided including property claims in its repertoire of benefits offered 50


to source nations (2004). One ICBG project, however, stands out in that it offered a licensing agreement to its source country collaborators. In 1993, the ICBG granted funding to a collection project headed by ethnobotanist Walter Lewis at Washington University in collaboration with the Aguaruna of the Peruvian Amazon. Lewis' stated primary object for the project was to "identify new pharmaceuticals based originally on ethnobotanical prescreening, while concomitantly conserving biodiversity in northern Peru by enhancing economic growth among the collaborating Aguaruna people" (1999: 69). He also describes a focus on both diseases that are "globally important" and diseases that are particularly significant in Peru. The official ICBG agreement was made up of four partners: Washington University, the Museo de Historia Natural de la Universidad Nacional Mayor de San Marcos (USM), the Universidad Peruana Cayetano Heredia (UPCH), and a fourth partner listed as "Aguaruna People." Each of the three institutions collected plants with the Aguaruna separately, the two universities amassing samples for bioassays and the museum for a collection of Peru's national biodiversity. Washington University than set up a separate partnership with G.D. Searle & Co., which at the time was the pharmaceutical sector of Monsanto (Greene 2004). The ambiguity of the category of the fourth partner, "Aguaruna people," proved problematic for the ICBG team as they struggled to find a way to appropriately represent the Aguaruna. With a large population (over 45,000 in 1993 at the time of the negotiation), the Aguaruna have been remarkably visible 51


in Peruvian environmental and indigenous politics and are connected by a vast network of political alliances (Dutfield 2009). Of the 187 distinct Aguaruna communities, most are affiliated with local Aguaruna-run organizations and affiliated with either of the two national indigenous confederations based in Lima. However, as I will demonstrate, these organizations do not always see eye to eye on appropriate representations of the Aguaruna community at large. In order to fill the "Aguaruna People" faction of the agreement, the 52 Figure 2 : The First ICBG-Peru Agreement (Adapted from Greene 2004 and Lewis 1999)


Washington University researchers drafted a letter of intent with the Consejo Aguaruna Huambisa, which has been cited as the most authoritative political entity to represent the Aguaruna. In this agreement, the Consejo would receive a yearly payment up-front for all plant samples as well as a share of future royalties should a marketable product arise from the collections. The researchers then finalized an agreement with G.D. Searle & Co., which included a license option agreement. Thus, the agreement between the four partners was structured so that Washington University was to act as the liaison between the pharmaceutical company and all three of the Peruvian institutions: the Universidad Peruana Cayetano Heredia (UPCH), the Museo de Historia Natural de la Universidad San Marcos, and the Consejo. Washington University was to provide the Consejo with the yearly payment and to distribute any royalties that might arise out of the collections amongst the four partners (Greene 2004). At the time that the letter of intent was drafted between Washington University and the Consejo Aguaruna Huambisa, Washington University had not finalized its agreement with Searle. When the Consejo got wind of this separate agreement, the organization halted the research and enlisted the help of Rural Advancement Foundation International (RAFI), a U.S.-based NGO, to investigate the agreement. Steadfastly opposed to any instance of potential 'biopiracy', RAFI transformed itself within a matter of a few years into a "major clearinghouse" for information about bioprospecting projects (Brown 2004: 113). RAFI published the royalty rates of the licensing agreement on the internet and "accused Searle and 53


the ICBG team of being 'bio-pirates' with the intention of exploiting Aguaruna knowledge in the interest of corporate gain" (Greene 2004: 215). The Consejo was equally concerned. In an interview with anthropologist Shane Greene, Evaristo Nugkuag, the Consejo's founder and president, stated, "they [the ICBG team] were not very clear. The earnings [i.e., the future royalty scheme], logically, are established between Monsanto and Washington University. And we were not included in that agreement, thus, our claim [to share in the earnings] is in vain." (Greene 2004: 215) Around the same time that the team was receiving heat from RAFI, Brendan Tobin, an Irish-born Peruvian nationalized lawyer who worked for the NGO Sociedad Peruana de Derecho Ambiental (SPDA), obtained both a copy of the agreement and of the letter of intent. Tobin released a statement to the ICBG that there were legal inconsistencies between the two documents and that the royalty rates were too low (Greene 2004). In late 1994, despite the unsettled conflicts, the researchers began making collections in collaboration with officials from the Ministry of Agriculture in the land surrounding Imazita, a non-indigenous settlement. In an interview with Greene, Nugkuag explained that, "without having authorization to enter into communities with the community chiefs they went astray in order to collect orchids. They collected other species of medicinal plants in what could be called a discrete fashion" (2004: 216). Lewis, however, disputes this claim, arguing that of the 300 samples collected during that period, only 10 were collected with the assistance of Aguaruna informants and that these came from the home community of the Organization Central de Comunidades Aguarunas del Alto Maranon (OCCAAM), 54


which the researchers had received consent from. In early 1995, the Consejo rescinded the agreement and the ICBG team formed a new agreement with OCCAAM, also a very influential organization representing the Aguaruna. In response to this new agreement, the Consejo sent a letter of protest to the National Institute of Health and Washington University explaining that the Consejo had been kept in the dark about the license agreement with Searle, that the researchers had collected on Aguaruna territory without consent, and that OCCAAM was not a legitimate organization (Greene 2004). RAFI obtained a copy of the letter and published it on their website. The ICBG officials responded to these acts of protest by initiating their own investigation and demanding that all the collections made during this time period be returned to Peru. In a September 1995 newsletter, RAFI quoted a significant excerpt from the Consejo's letter, attributing it to "the indigenous people" and failing to point out that the Consejo is a political body representing many Aguaruna communities but not necessarily the people as a whole. The article then explained that, without consultation with or approval from indigenous people, Washington University researchers unilaterally decided to initiate collection of samples and ethnographic material (to be provided to chemical giant Monsanto) in remote native communities in northeastern Peru. (RAFI 1995). In this depiction, RAFI chose to completely ignore OCCAAM as a legitimate political body. Although RAFI and the Consejo both portrayed the ICBG agreement as 55


indisputably unjust to the Aguaruna, these sentiments were not necessarily unanimous within all Aguaruna communities. Around the time of RAFI's internet campaign against the ICBG, Ricardo Apanœ, an Aguaruna man with ties to OCCAAM, assembled a team of ICBG-supporters, including the Federaci—n de Communidades Nativas Aguarunas del R’o Nieva (FECONARIN) and the Federaci—n Aguaruna del R’o Domingusa (FAD), two Aguaruna organizations. This team released a statement in April of 1995, reaffirming its support of the ICBG researchers and their collaboration with OCCAAM. They then contacted the Confederaci—n de Nacionalidades Amaz—nicas del Perœ (CONAP), a multiethnic Amazonian indigenous confederation that OCCAAM, FECONARIN, and FAD are all affiliated with (Greene 2004). In December 1995, CONAP held a meeting with the other three organizationsFECONARIN, FAD, and OCCAAM as well as two other Aguaruna organization, the Organizaci—n de Desarrollo de las Comunidades Fronterizas del Cenepa (ODECOFROC) and the Organizaci—n Aguaruna del Alto Mayo (OAAM), and a Huambisa organization, the Federaci—n de Comunidades Nativas del Ri— Santiago (FECONARSA). The meeting was also attended by the ICBG researchers, Brendan Tobin (the lawyer from the SPDA), and a representative from Searle. The eventual outcome was that OCCAAM, FECONARIN, and FAD each agreed to allow ICBG research to take place in their affiliated communities and joined into the agreement as one entity represented by CONAP. The alliance between these four organizations, however, did not necessarily mean that all of the Aguaruna communities represented by 56


these organizations were in agreement. Some communities chose to prohibit ICBG research in their territories, despite their organizational affiliations. In May 1996, three representatives of CONAP and Affiliates--CONAP's president, CŽsar Sarasara, a CONAP-affiliated lawyer from Lima, Mercedes Manr’quez, and Brendan Tobin, the SPDA lawyerflew to St. Louis to finalize the royalty mandates and annual collection payment for the new agreement with the ICBG researchers and Searle (Greene 2004). Whether positive or negative, this new agreement was highly significant and unique in the realm of commercialization of traditional knowledge for a variety of reasons. First, the Aguaruna representatives were in direct communication with Searle, rather than having to rely on Washington University as a liaison. As Greene notes, it was, "certainly one of the first instances of an indigenous group's representing its own interestsalbeit as mediated by non-indigenous legal expertswith a large pharmaceutical entity in negotiations over the potential commercialization of traditional knowledge" (2004: 217). Second, the agreement included a know-how license, between CONAP and Searle. The World Intellectual Property Organization explains the third party licensing of know-how in the following example: When dealing with third parties or licensing its know-how, the enterprise signs confidentiality agreements to ensure that all parties know that the information is a secret. In such circumstances, the misappropriation of the information by a competitor or by any third party would be considered a violation of the enterprise's trade secrets. (WIPO 2012) According to Tobin, this inclusion of a know-how license was a "truly novel step in 57


contract law, for the first time giving a group of indigenous peoples control and full ownership of its traditional knowledge" (Greene 2004: 217). Ultimately, the agreement was structured so that CONAP and affiliates licensed their know-how of traditional medicinal knowledge to Seale. In return, Seale paid an annual license fee, as well as a collection payment for the samples. The know-how license agreement also mandated that CONAP receive 58 Figure 3 : The Second ICBG-Peru Agreement (Adapted from Greene 2004 and Lewis 1999)


early royalty at two different advanced points in the drug-screening process. Additionally, CONAP and the ICBG researchers agreed on specific provisions concerning the terms and conditions of collections and a mandate for "fair and equitable sharing of benefits among the Aguaruna People" (Greene 2004: 218). With these new agreements finalized, the ICBG researchers began collecting again in 1996. Over the course of four years, the team collected approximately 3,500 samples from twenty-two Aguaruna communities (Lewis 1999). By September 1999, the collections had not yet led to any promising leads and the know-how license was not renewed. In terms of the "equitable sharing of benefits among the Aguaruna People," it is unclear how much these benefits actually reached Aguaruna communities. According to Lewis, the total amount of capital brought to Peru by the ICBG agreement totaled just shy of $1 million. Most of this money was used by the two Peruvian University partners--Universidad Peruana Cayetano Heredia (UPCH) and the Museo de Historia Natural de la Universidad San Marcosfor research and training of students and faculty (1999). A smaller portion of the funds went towards the training of a number of Aguaruna involved in the collections. The money that CONAP received was spent in part within the organization while the rest was distributed to the collaborating communities in the form of small loans, scholarships for Aguaruna students, and individual reimbursement to field informants who worked with the ICBG researchers in identifying medicinal plants (Lewis 1999). 59


Because the language of the agreement represented the fourth partner as the "Agurauna People," rather than simply the faction of the Aguaruna represented by CONAP, the agreement was obligated to remain open to other members of Aguaruna communities. These Aguarunas, however, were only let into the agreement, provided that they apply for inclusion by affiliating themselves with an existing Aguaruna organization, and to other Aguaruna organizations, and provided that they are approved by CONAP and Affiliates in a traditional assembly and dialogue called the Ipaamamu that has become central to CONAP's strategy for dealing with the local constituency (Greene 2004: 218). In giving CONAP the power to deny anyone access to the agreement, the organization gets to decide who may benefit from Aguaruna property claims to traditional ecological knowledge. This point is especially significant considering that CONAP and its affiliates only represent less than half of the Aguaruna communities (Brown 2004). The Washington University researchers seem to have failed to understand this last point. In a 1997 interview with the American Chemical Society news magazine, Lewis stated that the Aguaruna were, sophisticated enough to appreciate that they were only custodians of the knowledge. The agreements took a long time to fashion because we had not fully appreciated that the leaders would want to consult with everyone in their communities and reach a decision by consensus, which was, of course, the right way to proceed. (Rouhi 1997) Lewis glosses over just how complicated it was to reach an agreement, completely ignoring the Aguaruna's complex representational conflicts and vast network of political alliances and rivalries. He seems to believe a true consensus 60


was reached when in actuality, the ICBG was really only able to make an agreement with a body that represented less than half of the Aguaruna population. Another problem with the agreement is that the privatization of Aguaruna traditional ecological knowledge has led to local expectations that these knowledge claims will eventually yield generous amounts of money in royalties. Greene even describes how "raising expectations of a substantial economic gain over the long term became an essential part of their strategy to persuade local communities to accept the project" (2004: 219). Unfortunately, this money is unlikely to ever materialize. The decision of the Aguarunaor perhaps the organizations that represented a minority of the of Aguarunato extend a form of property rights to their traditional knowledge was born out of some interesting motivations and strategies. In an interview in 2001, CONAP's president, Sarasara, conveyed his strong belief that the Aguaruna involvement with the ICBG had been a "key turning point". He said that, "CONAP is working to find new formulas for collaborating with industry so that we're not looking in from the outside. We're not waiting for NGOs or the Catholic Church to help us. We're looking for opportunities to exploit the economic value of our resources" (Brown 2004: 114). His comment might reflect both a troublesome turn towards corporate enfranchisement and a hopeful appeal to make use of the market for Aguaruna mobilization. 61


Although the project was relatively short-lived, its unique inclusion of a know-how license paved the way for future law regarding the protection of traditional knowledge in Peru. The ICBG agreement was used as a model for developing a regulatory framework, ultimately resulting in Law 27811, argued to be the first law in the world protecting traditional knowledge (Ruiz 2004). This law, recognizing the failures of traditional intellectual property strategies to effectively protect traditional knowledge, was designed to be a complementary alternative to IP rights. Under Law 27811, collective knowledge of indigenous groups is protected as inalienable and indefeasible. Indigenous peoples may exercise the power to make decisions regarding the protection of their collective knowledge. Benefits derived from this collective knowledge are to be shared on a community level. Posey sees this law, as well as other similar laws instated over the last decade, as "fundamentally radical in that they recognize the community-based nature of in situ biodiversity conservationwhich implies the recognition of indigenous land, territorial, and resource rights" (2000: 17). However, just like the ICBG agreement it was modeled after, Law 27811 fails to recognize the complexity of indigenous identities and collective property. The law makes repeated appeals to the collective knowledge of indigenous populations without ever defining who counts as indigenous or what to do if members of the same indigenous group disagree on how their collective knowledge may be used. The ICBG-Peru agreement is lauded as a success story, the first of it's kind. However, 62


as I demonstrated in this chapter, the Aguaruna's path to receiving a know-how license was rife with conflict and inadequate representation from both local and international non-governmental bodies. 63


Conclusion Through these two case studies, ICBG-Mexico and ICBG-Peru, I have illustrated that though bioprospecting is proposed as a way to equitably share the benefits of biological resources with the populations that are argued to be their stewards, most bioprospecting projects fail to live up to this promise. Although these two case studies cannot speak for bioprospecting or even the ICBG program as a whole, I believe they both bring to light certain tensions in the bioprospecting philosophy that make just benefits sharing a near impossible goal. First, the most obvious tension is the question of who should receive benefits. In cases like ICBG-Peru that isolate a particular indigenous group to serve as benefit-recipients, the subjects of the agreements are left to grapple with who counts as indigenous and who should represent the group. So far the ICBG has funded two projects that exclusively targeted the traditional knowledge of indigenous peoples, the Aguaruna case featured in chapter three and the ICBG-Maya project. Both of these projects were the source of a great deal of controversy and faced intervention from RAFI, as well as other activist groups, who believed the projects were pirating indigenous property and co-opting traditional knowledge. The ICBG-Maya project was ultimately cancelled after two years of intense opposition and aggressive campaigns against it. Other cases, like the Latin American ICBG, don't focus on particular local groups but instead treat biodiversity as a common, national resource. This 64


approach attracts far less negative attention; however, it makes it possible to erase the rights and interests of local or indigenous stewards of biodiversity because seemingly anyone in the country can be enlisted as benefits-recipients. A second tension results from the lack of a standardized definition of a genetic resource. While the CBD has communicated the economic value of biodiversity and the nation's right to protect this value, it is uncertain what exactly should be protected. Many social scientists and activists see such policies as a way to protect the inherent value of biodiversity and traditional knowledge from corporate exploitation. Other scientists and biotechnology firms interpret genetic resources to be valueless until their economic value is "unlocked" through a process of research and development of a marketable product. A third tension is that genetic resources are not localizable for many reasons. They may be spread out over large regions, crossing community and even country borders. Knowledge about genetic resources may exist in multiple forms with no singular source. Even in cases where a genetic resource is derived from an endemic species, the particular biologically-active agent may be found in other species elsewhere. Synthetic copies of natural compounds can be produced so that companies can conveniently sidestep rewarding source countries. As we saw in the Mexican ICBG, medicinal plants are well-traveled, changing hands many times. Tracing them back to their source is usually almost impossible. In the Peruvian ICBG, we saw that even when knowledge about plants can be traced back to a particular indigenous community, knowledge is not 65


evenly distributed within the community and decisions about how to protect this knowledge are almost never unanimous. A fourth tension results from the ambitious aims of the ICBG paired with the low probability that the projects will actually develop profitable products. In the Peruvian case, Aguaruna community members believed that privatizing their knowledge would eventually be profitable. In the Mexican case, communities signed on to participate in conservation efforts because they believed they would eventually receive royalties. Both projects have yet to develop marketable products and the profits the local participants were promised have yet to materialize. To date, no ICBG projects have yielded a flow of royalties to source projects. A few promising leads have made the news, including, most recently, a potential malaria treatment derived from seaweed found in an ICBG project in Fiji (Pennisi 2011). However, such leads still have a long way to go in the research and development phase. Overall, i n their frequent appeals to "local communities," the optimistic ICBG project directors seem to be invoking the currents trends of communitybased and participatory approaches to development. But it is very clear that the goals of these bioprospecting projects are ultimately determined by the ICBG, not the local communities. These agreements illuminate structural inequalities at multiple points of intersectionbetween the U.S. and host country researchers, between the host country researchers and their benefits-sharing research subjects, between the urban market vendors and and rural steward communities 66


made "visible" in the project, and if one day a marketable product is developed, between the stakeholders who were contractually designated to receive benefits and the stakeholders who were left out. In chapter one, I brought up McAfee's argument that bioprospecting will go through a cycle of commodity boom, market saturation, and then bust (1999). After examining the ICBG projects, even this critique seems optimistic as these bioprospecting projects have failed to result in any inclusion in the market at all. In 2002, as the ICBG reached the end of it's second grant award cycle, the National Institute of Health (NIH) commissioned a review of the program in its first ten years and an evaluation of its success to meet its proposed goals of drug discovery, conservation, and economic development. At the time of the report, the reviewers were unable to answer the question of whether the ICBG's choice to make the three goals interdependent improves the overall likelihood that these goals will be met. They did, however, tout the program to be a definite overall success, arguing that the ICBG is "leading the effort worldwide to implement the principles of the Convention on Biological Diversity" (NIH 2002). The reviewers contended that the ICBG has done "an outstanding job" contracting agreements that define potential benefits of bioprospecting and how these benefits will be allocated. They offered a series of recommendations for the future development of the ICBG, including more rigorous planning periods for each new project and a more detailed "business plan" that would define the economic incentives for 67


benefits sharing and a process by which local beneficiary programs could become self-sustaining. The reviewers also suggested that the ICBG consider expanding the program to allow for more emphasis on research in marine organism and microorganisms, which they believe would be more lucrative and more competitive with emerging trends in biotechnology. It seems the project directors took this advice seriously. In fact, seven of the eight ICBG projects operating todayincluding both of the two most recent projects, which received funding in 2008include specific provisions for microbial and marine research (ICBG 2012). The reviewers admitted that such a move might make it more difficult to tie drug discovery directly to conservation and rewardable stewards. Bronwyn Parry argues that increased emphasis on microbes in bioprospecting contracts gives more control to the pharmaceutical partners (2003). With a single microbial sample, biotechnological firms obtain all the genetic material needed to develop a product as opposed to botanical samples, which require further collections (Hayden 2003). In the future, this move away from botanical research and into microbial and marine research in bioprospecting contracts could mean that the "local communities" the ICBG tries to locate and reward may increasingly be left out. The majority of this thesis has dealt with how local people have been incorporated into bioprospecting contractsusually problematically but with seemingly earnest intentions from the researchers. In the future of bioprospecting 68


contracts, it seems local people are increasingly likely to not be included at all. 69


Bibliography Adams, William Mansfield 2008 Green Development Environment and Sustainability in a Developing World Routledge, London. Agrawal, Arun 1995 Dismantling the Divide Between Indigenous and Scientific Knowledge. Development and Change ( 26) 3: 413-39. Berkes, Fikret 2008 Sacred Ecology Routledge, New York. Brown, Michael F. 2004 Who Owns Native Culture? Harvard University Press. Cambridge, MA Brush, Stephen 1999 Bioprospecting the public domain. Cultural Anthropology ( 14) 4: 535555. Bye, Robert A., and Edelmira Linares 1983 The Role of Plants Found in the Mexican Markets and Their Importance in Ethnobotanical Studies. Journal of Ethnobiology (13) 1: 1-13. Castree, Noel 2003 Bioprospecting: from Theory to Practice (and Back Again). Transactions of the Institute of British Geographers ( 28)1: 35-55. De Jonge, Bram, and Niels Louwaars 2009 The Diversity of Principles Underlying the Concept of Benefit Sharing. In Genetic Resources, Traditional Knowledge and the Law: Solutions for Access and benefits sharing Evanson C. Kamau and Gerd Winter, eds. 37-56 Earthscan, London. Dutfield, Graham 2009 Protecting the Rights of Indigenous Peoples: Can Prior Informed Consent Help? In Indigenous Peoples, Consent, and benefits sharing: Lessons from the San-Hoodia Case Rachel Wynberg, Doris Schroeder, and Roger Chennells eds. Dordrecht: Springer. Escobar, Arturo 70


1996 Construction Nature: Elements for a Post-structuralist Political Ecology. Futures (2 8)4: 325-43. Greene, Shane 2004 Indigenous People Incorporated? Culture as Politics, Culture as Property in Pharmaceutical Bioprospecting. Current Anthropology ( 45)2: 211-37. Raymond, Hames 2007 The Ecologically Noble Savage Debate. Annual Review of Anthropology ( 36)1: 177-90. Hayden, Cori 2003a From Market to Market: Bioprospecting's Idioms of Inclusion. American Ethnologist ( 30)3: 359-71. 2003b When Nature Goes Public: the Making and Unmaking of Bioprospecting in Mexico. Princeton University Press, Princeton, NJ. 2005 Bioprospecting's representational dilemma. Science as Culture ( 14)2: 185-200. 2006 Bioprospecting: The Promise and Threat of the Market. NACLA Report on the Americas ( 39) 5: 26-40. ICBG (International Cooperative Biodiversity Groups) 2011 ICBG Groups. . Accessed October 1, 2011. Jondle, Robert J. 1993 Legal Protection for Plant Intellectual Property. HortTechnology (3) 3: 301-7. Karasov, Corliss 2001 Who Reaps the Benefits of Biodiversity? Environmental Health Perspectives (1 09)12: A582. Kloppenburg, Jack Ralph 2004 First the Seed: the Political Economy of Plant Biotechnology, 14922000 University of Wisconsin Press, Madison, WI. The Leech and the Earthworm. 2003 Directed by Max Pugh and Marc Silver. Produced by Debra Harry. Yeast Directions/Indigenous Peoples Council on Biocolonialism. DVD 71


Lewis, Walter, Gerardo Lamas, Abraham Vaisberg, David Corley, and CŽsar Sarasara 1999 Peruvian Medicinal Plant Sources Of New Pharmaceuticals (International Cooperative Biodiversity Group-Peru). Pharmaceutical Biology ( 37)4: 69-83. McAfee, Kathleen 1999 Selling Nature to save It? Biodiversity and Green Developmentalism. Environment and Planning D: Society and Space ( 17)2: 133-54. NIH (National Institute of Health) 2002 ICBG 2002 Program Review Report. < >. Accessed April 10, 2012. Parry, Bronwyn 2003 The Fate of the Collections: Exploring the Dynamics of Trade in Bioinformation. Columbia University Press: New York. Pennisi, Elizabeth. 2011 Seaweed a Source of Potential Antimalarial Drug. ScienceNOW (accessed April 12, 2012). Posey, Darrel A. 2000 Biodiversity, Genetic Resources and Indigenous Peoples in Amazonia: (Re)discovering the Wealth of Traditional Resources of Native Amazonians. In Amazonia at the crossroads. Anthony Hall, ed. 188-204. Institute of Latin American Studies, London. RAFI (Rural Advancement Foundation International) 1995 Biopiracy Update: A Global Pandemic. RAFI Communique September-October Edition 1-10. Rosenthal, Joshua P. 1996 Equitable Sharing of Biodiversity Benefits: Agreements on Genetic Resources. Investing in Biological Diversity: The Cairns Conference: Proceedings of the OECD International Conference on Incentive Measures for the Conservation and the Sustainable Use of Biological Diversity in Cairns, Australia, 25-28 March 1996. Organization for Economic Co-operation and Development, Paris, France. 72


Rouhi, A. Maureen 1997 Seeking Drugs In Natural Products. Chemical & Engineering News ( 75)14: 14-29. Ruiz, Manuel, Isabel Lapena, and Susanna E. Clark. 2004 The Protection of Traditional Knowledge in Peru: A Comparative Perspective. Washington University Global Studies Law Review 3: 755-97. Shiva, Vandana 1997 Biopiracy: The Plunder of Nature and Knowledge South End, Boston, MA. Slater, Candace 1996 Amazonia as Edenic Narrative. In Uncommon Ground Rethinking the Human Place in Nature William Cronon, ed. 114-31. W.W. Norton, New York. So, Alvin Y. 1990 Social Change and Development: Modernization, Dependency, and World-systems Theories Sage Publications, Newbury Park, CA. Stoll, Peter-Tobias 2009 Access to GRs and benefits sharing Underlying Concepts and the Idea of Justice. In Genetic Resources, Traditional Knowledge and the Law: Solutions for Access and benefits sharing Evanson C. Kamau and Gerd Winter, eds. Earthscan, London. Timmermann, Barbara N. 2001 Biodiversity Prospecting in Drylands of Latin America. In Combating Desertification with Plants D. Pasternak and Arnold Schlissel, eds. Kluwer Academic/Plenum, New York. Timmermann, Barbara, Gerald WŠchter, Susanne Valcic, Barbara Hutchinson, Carla Casler, Jerry Henzel, Sudha Ram, Faiz Currim, Rita Manak, Scott Franzblau, William Maiese, Deborah Galinis, Enrique Suarez, Renee Fortunato, Edgardo Saavedra, Robert Bye, Rachel Mata, and Gloria Montenegro. 1999 The Latin American ICBG: The First Five Years. Pharmaceutical Biology ( 37)4: 35-54. UN (United Nations) 1992 Convention on Biological Diversity. Accessed December 1, 2011. 73


WIPO (World Intellectual Property Organization) 2012 How Are Trade Secrets Protected??" Accessed January 15, 2012. 74