Traditional Knowledge and Genetic Resources: Observing Legal Protection through the Lens of Historical Geography and Human Rights

Abstract

National and regional legal and regulatory frameworks have been put in place to implement provisions of the 1992 Convention on Biological Diversity (CBD) on access to genetic resources and traditional knowledge and benefit sharing from their use. However, few meaningful benefits from access and benefit sharing (ABS) frameworks have been secured by groups holding traditional knowledge associated with genetic resources (TKGR) or by other developing country stakeholders. Our hypothesis is that ABS frameworks can only work effectively and equitably in a world in which the geographies of genetic resources and of associated traditional knowledge are sufficiently static, and where the norm is for there to be unequivocal linkages between knowledge-holding individuals and groups, biological matter and information of actual or potential human use associated with this knowledge, and specific and identifiable places. We argue that by and large this is not the case. We show how a historical geography perspective informed by anthropology and ethnoecology is extremely useful in separating those instances where benefit sharing with a specific group or community is due and is practicable, and those probably far more common situations where either no benefits are due, or else such benefits must be distributed using existing norms by means of a multilateral mechanism. Our skepticism about the current tendency to focus narrowly either on ABS frameworks leads us to the view that a human rights framework that we construct based on existing international instruments offers a more robust, comprehensive and culturally sensitive legal structure that addresses the legitimate concerns of indigenous peoples that can be applied both within and – which is probably preferable – outside of conventional ABS frameworks and intellectual property-related norms.